G.R. No. 148208 December 15, 2004 Article II, Section 15(c) of R.A. No.

7653 provides:

CENTRAL BANK (now Bangko Sentral ng Pilipinas) Section 15. Exercise of Authority - In the exercise of its authority,
EMPLOYEES ASSOCIATION, INC., petitioner, the Monetary Board shall:
vs.
BANGKO SENTRAL NG PILIPINAS and the EXECUTIVE xxx xxx xxx
SECRETARY, respondents.
(c) establish a human resource management system which
DECISION shall govern the selection, hiring, appointment, transfer,
promotion, or dismissal of all personnel. Such system shall
PUNO, J.: aim to establish professionalism and excellence at all
levels of the Bangko Sentral in accordance with sound
Can a provision of law, initially valid, principles of management.
become subsequently unconstitutional, on the ground that
its continued operation would violate the equal protection of the A compensation structure, based on job evaluation studies
law? We hold that with the passage of the subsequent laws and wage surveys and subject to the Board's approval,
amending the charter of seven (7) other governmental financial shall be instituted as an integral component of the Bangko
institutions (GFIs), the continued operation of the last proviso of Sentral's human resource development
Section 15(c), Article II of Republic Act (R.A.) No. 7653, program: Provided, That the Monetary Board shall make
constitutes invidious discrimination on the 2,994 rank-and-file its own system conform as closely as possible with the
employees of the Bangko Sentral ng Pilipinas (BSP). principles provided for under Republic Act No. 6758
[Salary Standardization Act]. Provided, however, That
I. compensation and wage structure of employees
whose positions fall under salary grade 19 and below
The Case shall be in accordance with the rates prescribed under
Republic Act No. 6758. [emphasis supplied]
First the facts.
The thrust of petitioner's challenge is that the
above proviso makes an unconstitutional cut between two
On July 3, 1993, R.A. No. 7653 (the New Central Bank Act) took
classes of employees in the BSP, viz: (1) the BSP officers or
effect. It abolished the old Central Bank of the Philippines, and
those exempted from the coverage of the Salary Standardization
created a new BSP.
Law (SSL) (exempt class); and (2) the rank-and-file (Salary
Grade [SG] 19 and below), or those not exempted from the
On June 8, 2001, almost eight years after the effectivity of R.A. coverage of the SSL (non-exempt class). It is contended that this
No. 7653, petitioner Central Bank (now BSP) Employees classification is "a classic case of class legislation," allegedly not
Association, Inc., filed a petition for prohibition against BSP and based on substantial distinctions which make real differences, but
the Executive Secretary of the Office of the President, to restrain solely on the SG of the BSP personnel's position. Petitioner also
respondents from further implementing the last proviso in Section claims that it is not germane to the purposes of Section 15(c),
15(c), Article II of R.A. No. 7653, on the ground that it is Article II of R.A. No. 7653, the most important of which is to
unconstitutional.
establish professionalism and excellence at all levels in the
BSP.1 Petitioner offers the following sub-set of arguments:
a. the legislative history of R.A. No. 7653 shows that the
questioned proviso does not appear in the original and
amended versions of House Bill No. 7037, nor in the
original version of Senate Bill No. 1235; 2
b. subjecting the compensation of the BSP rank-and-file
employees to the rate prescribed by the SSL actually
defeats the purpose of the law3 of establishing
professionalism and excellence at all levels in the
BSP; 4 (emphasis supplied)
c. the assailed proviso was the product of amendments
introduced during the deliberation of Senate Bill No. 1235,
without showing its relevance to the objectives of the law,
and even admitted by one senator as discriminatory
against low-salaried employees of the BSP;5
d. GSIS, LBP, DBP and SSS personnel are all exempted
from the coverage of the SSL; thus within the class of
rank-and-file personnel of government financial institutions
(GFIs), the BSP rank-and-file are also discriminated
upon;6 and
e. the assailed proviso has caused the demoralization
among the BSP rank-and-file and resulted in the gross
disparity between their compensation and that of the BSP
officers'.7
In sum, petitioner posits that the classification is not reasonable
but arbitrary and capricious, and violates the equal protection
clause of the Constitution.8 Petitioner also stresses: (a) that R.A.
No. 7653 has a separability clause, which will allow the declaration
of the unconstitutionality of the proviso in question without
affecting the other provisions; and (b) the urgency and propriety of
the petition, as some 2,994 BSP rank-and-file employees have
been prejudiced since 1994 when the proviso was implemented.
Petitioner concludes that: (1) since the inequitable proviso has no
force and effect of law, respondents' implementation of such
amounts to lack of jurisdiction; and (2) it has no appeal nor any
other plain, speedy and adequate remedy in the ordinary course
except through this petition for prohibition, which this Court should
take cognizance of, considering the transcendental importance of
the legal issue involved.9
Respondent BSP, in its comment,10 contends that the provision
does not violate the equal protection clause and can stand the
constitutional test, provided it is construed in harmony with other
provisions of the same law, such as "fiscal and administrative
autonomy of BSP," and the mandate of the Monetary Board to
"establish professionalism and excellence at all levels in
accordance with sound principles of management."
The Solicitor General, on behalf of respondent Executive
Secretary, also defends the validity of the provision. Quite
simplistically, he argues that the classification is based on actual
and real differentiation, even as it adheres to the enunciated policy
of R.A. No. 7653 to establish professionalism and excellence
within the BSP subject to prevailing laws and policies of the
national government.11
II.
Issue
Thus, the sole - albeit significant - issue to be resolved in this
case is whether the last paragraph of Section 15(c), Article II of
R.A. No. 7653, runs afoul of the constitutional mandate that "No
person shall be. . . denied the equal protection of the laws."12
III.
Ruling
A. UNDER THE PRESENT STANDARDS OF EQUAL
PROTECTION,
SECTION 15(c), ARTICLE II OF R.A. NO. 7653 IS VALID.
Jurisprudential standards for equal protection challenges
indubitably show that the classification created by the
questioned proviso, on its face and in its operation, bears no
constitutional infirmities.
It is settled in constitutional law that the "equal protection" clause
does not prevent the Legislature from establishing classes of
individuals or objects upon which different rules shall operate - so
long as the classification is not unreasonable. As held
in Victoriano v. Elizalde Rope Workers' Union,13 and reiterated in
a long line of cases:14
The guaranty of equal protection of the laws is not a
guaranty of equality in the application of the laws upon all
citizens of the state. It is not, therefore, a requirement, in
order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely
as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which
are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not
prohibit legislation which is limited either in the object to
which it is directed or by the territory within which it is to
operate.
The equal protection of the laws clause of the Constitution
allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of
things in speculation or practice because they agree with
one another in certain particulars. A law is not invalid
because of simple inequality. The very idea of
classification is that of inequality, so that it goes without
saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is
required of a valid classification is that it be reasonable,
which means that the classification should be based on
substantial distinctions which make for real differences,
that it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that it
must apply equally to each member of the class. This
Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the
purpose of enacting laws over matters within its
jurisdiction, the state is recognized as enjoying a wide
range of discretion. It is not necessary that the
classification be based on scientific or marked differences
of things or in their relation. Neither is it necessary that the
classification be made with mathematical nicety. Hence,
legislative classification may in many cases properly rest
on narrow distinctions, for the equal protection guaranty
does not preclude the legislature from recognizing degrees
of evil or harm, and legislation is addressed to evils as they
may appear. (citations omitted)
Congress is allowed a wide leeway in providing for a valid
classification.15 The equal protection clause is not infringed by
legislation which applies only to those persons falling within a
specified class.16 If the groupings are characterized by substantial
distinctions that make real differences, one class may be treated
and regulated differently from another.17 The classification must
also be germane to the purpose of the law and must apply to all
those belonging to the same class.18
In the case at bar, it is clear in the legislative deliberations that the
exemption of officers (SG 20 and above) from the SSL was
intended to address the BSP's lack of competitiveness in terms of
attracting competent officers and executives. It was not intended
to discriminate against the rank-and-file. If the end-result did in fact
lead to a disparity of treatment between the officers and the rank-
and-file in terms of salaries and benefits, the discrimination or
distinction has a rational basis and is not palpably, purely, and
entirely arbitrary in the legislative sense. 19
That the provision was a product of amendments introduced
during the deliberation of the Senate Bill does not detract from its
validity. As early as 1947 and reiterated in subsequent cases,20 this
Court has subscribed to the conclusiveness of an enrolled bill to
refuse invalidating a provision of law, on the ground that the bill
from which it originated contained no such provision and was
merely inserted by the bicameral conference committee of both
Houses.
Moreover, it is a fundamental and familiar teaching that all
reasonable doubts should be resolved in favor of the
constitutionality of a statute.21 An act of the legislature, approved by
the executive, is presumed to be within constitutional
limitations.22 To justify the nullification of a law, there must be a
clear and unequivocal breach of the Constitution, not a doubtful
and equivocal breach.23
B. THE ENACTMENT, HOWEVER, OF SUBSEQUENT LAWS -
EXEMPTING ALL OTHER RANK-AND-FILE EMPLOYEES
OF GFIs FROM THE SSL - RENDERS THE CONTINUED
APPLICATION OF THE CHALLENGED PROVISION
A VIOLATION OF THE EQUAL PROTECTION CLAUSE.
While R.A. No. 7653 started as a valid measure well within the
legislature's power, we hold that the enactment of subsequent
laws exempting all rank-and-file employees of other GFIs
leeched all validity out of the challenged proviso.
1. The concept of relative constitutionality.
The constitutionality of a statute cannot, in every instance, be
determined by a mere comparison of its provisions with applicable
provisions of the Constitution, since the statute may be
constitutionally valid as applied to one set of facts and invalid in its
application to another.24
A statute valid at one time may become void at another time
because of altered circumstances.25 Thus, if a statute in its
practical operation becomes arbitrary or confiscatory, its validity,
even though affirmed by a former adjudication, is open to inquiry
and investigation in the light of changed conditions.26
Demonstrative of this doctrine is Vernon Park Realty v. City of
Mount Vernon,27 where the Court of Appeals of New York declared
as unreasonable and arbitrary a zoning ordinance which placed
the plaintiff's property in a residential district, although it was
located in the center of a business area. Later amendments to the
ordinance then prohibited the use of the property except for
parking and storage of automobiles, and service station within a
parking area. The Court found the ordinance to constitute an
invasion of property rights which was contrary to constitutional due
process. It ruled:
While the common council has the unquestioned right to
enact zoning laws respecting the use of property in
accordance with a well-considered and comprehensive
plan designed to promote public health, safety and general
welfare, such power is subject to the constitutional
limitation that it may not be exerted arbitrarily or
unreasonably and this is so whenever the zoning
ordinance precludes the use of the property for any
purpose for which it is reasonably adapted. By the same
token, an ordinance valid when adopted will
nevertheless be stricken down as invalid when, at a
later time, its operation under changed conditions
proves confiscatory such, for instance, as when the
greater part of its value is destroyed, for which the courts
will afford relief in an appropriate case.28 (citations omitted,
emphasis supplied)
In the Philippine setting, this Court declared the continued
enforcement of a valid law as unconstitutional as a consequence
of significant changes in circumstances. Rutter v.
Esteban29 upheld the constitutionality of the moratorium law - its
enactment and operation being a valid exercise by the State of its
police power30 - but also ruled that the continued enforcement of
the otherwise valid law would be unreasonable and
oppressive. It noted the subsequent changes in the country's
business, industry and agriculture. Thus, the law was set aside
because its continued operation would be grossly discriminatory
and lead to the oppression of the creditors. The landmark ruling
states:31
The question now to be determined is, is the period
of eight (8) years which Republic Act No. 342 grants to
debtors of a monetary obligation contracted before the last
global war and who is a war sufferer with a claim duly
approved by the Philippine War Damage Commission
reasonable under the present circumstances?
It should be noted that Republic Act No. 342 only extends
relief to debtors of prewar obligations who suffered from
the ravages of the last war and who filed a claim for their
losses with the Philippine War Damage Commission. It is
therein provided that said obligation shall not be due and
demandable for a period of eight (8) years from and after
settlement of the claim filed by the debtor with said
Commission. The purpose of the law is to afford to prewar
debtors an opportunity to rehabilitate themselves by giving
them a reasonable time within which to pay their prewar
debts so as to prevent them from being victimized by their
creditors. While it is admitted in said law that since
liberation conditions have gradually returned to normal,
this is not so with regard to those who have suffered the
ravages of war and so it was therein declared as a policy
that as to them the debt moratorium should be continued in
force (Section 1).
But we should not lose sight of the fact that these
obligations had been pending since 1945 as a result of the
issuance of Executive Orders Nos. 25 and 32 and at
present their enforcement is still inhibited because of the
enactment of Republic Act No. 342 and would continue to
be unenforceable during the eight-year period granted to
prewar debtors to afford them an opportunity to rehabilitate
themselves, which in plain language means that the
creditors would have to observe a vigil of at least twelve
(12) years before they could effect a liquidation of their
investment dating as far back as 1941. his period seems to
us unreasonable, if not oppressive. While the purpose of
Congress is plausible, and should be commended, the
relief accorded works injustice to creditors who are
practically left at the mercy of the debtors. Their hope to
effect collection becomes extremely remote, more so if the
credits are unsecured. And the injustice is more patent
when, under the law, the debtor is not even required to pay
interest during the operation of the relief, unlike similar
statutes in the United States.
xxx xxx xxx
In the face of the foregoing observations, and consistent
with what we believe to be as the only course dictated by
justice, fairness and righteousness, we feel that the only
way open to us under the present circumstances is to
declare that the continued operation and enforcement
of Republic Act No. 342 at the present time is
unreasonable and oppressive, and should not be
prolonged a minute longer, and, therefore, the same
should be declared null and void and without
effect. (emphasis supplied, citations omitted)
2. Applicability of the equal protection clause.
In the realm of equal protection, the U.S. case of Atlantic Coast
Line R. Co. v. Ivey32 is illuminating. The Supreme Court of Florida
ruled against the continued application of statutes authorizing the
recovery of double damages plus attorney's fees against railroad
companies, for animals killed on unfenced railroad right of way
without proof of negligence. Competitive motor carriers, though
creating greater hazards, were not subjected to similar liability
because they were not yet in existence when the statutes were
enacted. The Court ruled that the statutes became invalid as
denying "equal protection of the law," in view of changed
conditions since their enactment.
In another U.S. case, Louisville & N.R. Co. v. Faulkner,33 the
Court of Appeals of Kentucky declared unconstitutional a provision
of a statute which imposed a duty upon a railroad company of
proving that it was free from negligence in the killing or injury of
cattle by its engine or cars. This, notwithstanding that the
constitutionality of the statute, enacted in 1893, had been
previously sustained. Ruled the Court:
 The constitutionality of such legislation was sustained
because it applied to all similar corporations and had for its
object the safety of persons on a train and the protection of
property…. Of course, there were no automobiles in those
days. The subsequent inauguration and development of
transportation by motor vehicles on the public highways by
common carriers of freight and passengers created even
greater risks to the safety of occupants of the vehicles and
of danger of injury and death of domestic animals. Yet,
under the law the operators of that mode of competitive
transportation are not subject to the same extraordinary
legal responsibility for killing such animals on the public
roads as are railroad companies for killing them on their
private rights of way.
The Supreme Court, speaking through Justice Brandeis in
Nashville, C. & St. L. Ry. Co. v. Walters, 294 U.S. 405, 55
S.Ct. 486, 488, 79 L.Ed. 949, stated, "A statute valid
when enacted may become invalid by change in the
conditions to which it is applied. The police power is
subject to the constitutional limitation that it may not be
exerted arbitrarily or unreasonably." A number of prior
opinions of that court are cited in support of the statement.
The State of Florida for many years had a statute, F.S.A. §
356.01 et seq. imposing extraordinary and special duties
upon railroad companies, among which was that a railroad
company was liable for double damages and an attorney's
fee for killing livestock by a train without the owner having
to prove any act of negligence on the part of the carrier in
the operation of its train. In Atlantic Coast Line Railroad
Co. v. Ivey, it was held that the changed conditions
brought about by motor vehicle transportation rendered the
statute unconstitutional since if a common carrier by motor
vehicle had killed the same animal, the owner would have
been required to prove negligence in the operation of its
equipment. Said the court, "This certainly is not equal
protection of the law."34 (emphasis supplied)
Echoes of these rulings resonate in our case law, viz:
[C]ourts are not confined to the language of the statute
under challenge in determining whether that statute has
any discriminatory effect. A statute nondiscriminatory on
its face may be grossly discriminatory in its
operation. Though the law itself be fair on its face and
impartial in appearance, yet, if it is applied and
administered by public authority with an evil eye and
unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances,
material to their rights, the denial of equal justice is still
within the prohibition of the Constitution.35 (emphasis
supplied, citations omitted)
[W]e see no difference between a law which denies
equal protection and a law which permits of such
denial. A law may appear to be fair on its face and
impartial in appearance, yet, if it permits of unjust and
illegal discrimination, it is within the constitutional
prohibition….. In other words, statutes may be adjudged
unconstitutional because of their effect in operation…. If a
law has the effect of denying the equal protection of the
law it is unconstitutional. ….36 (emphasis supplied, citations
omitted
3. Enactment of R.A. Nos. 7907 + 8282 + 8289 + 8291 + 8523 +
8763
+ 9302 = consequential unconstitutionality of
challenged proviso.
According to petitioner, the last proviso of Section 15(c), Article II
of R.A. No. 7653 is also violative of the equal protection clause
because after it was enacted, the charters of the GSIS, LBP, DBP
and SSS were also amended, but the personnel of the latter GFIs
were all exempted from the coverage of the SSL.37 Thus, within the
class of rank-and-file personnel of GFIs, the BSP rank-and-file are
also discriminated upon.
Indeed, we take judicial notice that after the new BSP charter was
enacted in 1993, Congress also undertook the amendment of the
charters of the GSIS, LBP, DBP and SSS, and three other GFIs,
from 1995 to 2004, viz:
 1. R.A. No. 7907 (1995) for Land Bank of the Philippines audit of actual duties and responsibilities. The
(LBP); compensation plan shall be comparable with the prevailing
compensation plans in the private sector and shall be
2. R.A. No. 8282 (1997) for Social Security System (SSS); subject to periodic review by the Board no more than once
every two (2) years without prejudice to yearly merit
3. R.A. No. 8289 (1997) for Small Business Guarantee and reviews or increases based on productivity and
Finance Corporation, (SBGFC); profitability. The Bank shall therefore be exempt from
existing laws, rules and regulations on compensation,
position classification and qualification standards. It
4. R.A. No. 8291 (1997) for Government Service Insurance
shall however endeavor to make its system conform as
System (GSIS);
closely as possible with the principles under Republic Act
No. 6758. (emphasis supplied)
5. R.A. No. 8523 (1998) for Development Bank of the
Philippines (DBP);
xxx xxx xxx
6. R.A. No. 8763 (2000) for Home Guaranty Corporation
2. SSS (R.A. No. 8282)
(HGC);38 and
Section 1. [Amending R.A. No. 1161, Section 3(c)]:
7. R.A. No. 9302 (2004) for Philippine Deposit Insurance
Corporation (PDIC).
xxx xxx xxx
It is noteworthy, as petitioner points out, that the subsequent
charters of the seven other GFIs share this (c)The Commission, upon the recommendation of the SSS
common proviso: a blanket exemption of all their President, shall appoint an actuary and such other
employees from the coverage of the SSL, expressly or impliedly, personnel as may [be] deemed necessary; fix their
as illustrated below: reasonable compensation, allowances and other benefits;
prescribe their duties and establish such methods and
procedures as may be necessary to insure the efficient,
1. LBP (R.A. No. 7907)
honest and economical administration of the provisions
and purposes of this Act: Provided, however, That the
Section 10. Section 90 of [R.A. No. 3844] is hereby personnel of the SSS below the rank of Vice President
amended to read as follows: shall be appointed by the SSS President: Provided, further,
That the personnel appointed by the SSS President,
Section 90. Personnel. - except those below the rank of assistant manager, shall be
subject to the confirmation by the Commission; Provided
xxx xxx xxx further, That the personnel of the SSS shall be selected
only from civil service eligibles and be subject to civil
All positions in the Bank shall be governed by a service rules and regulations: Provided, finally, That the
compensation, position classification system and SSS shall be exempt from the provisions of Republic
qualification standards approved by the Bank's Board of Act No. 6758 and Republic Act No. 7430. (emphasis
Directors based on a comprehensive job analysis and supplied)
3. SBGFC (R.A. No. 8289)
Section 8. [Amending R.A. No. 6977, Section 11]:
xxx xxx xxx
The Small Business Guarantee and Finance Corporation
shall:
xxx xxx xxx
(e) notwithstanding the provisions of Republic Act No.
6758, and Compensation Circular No. 10, series of
1989 issued by the Department of Budget and
Management, the Board of Directors of SBGFC shall
have the authority to extend to the employees and
personnel thereof the allowance and fringe benefits
similar to those extended to and currently enjoyed by
the employees and personnel of other government
financial institutions. (emphases supplied)
4. GSIS (R.A. No. 8291)
Section 1. [Amending Section 43(d)].
xxx xxx xxx
Sec. 43. Powers and Functions of the Board of Trustees. -
The Board of Trustees shall have the following powers
and functions:
xxx xxx xxx
(d) upon the recommendation of the President and
General Manager, to approve the GSIS' organizational and
administrative structures and staffing pattern, and to
establish, fix, review, revise and adjust the appropriate
compensation package for the officers and employees of
the GSIS with reasonable allowances, incentives,
bonuses, privileges and other benefits as may be
necessary or proper for the effective management,
operation and administration of the GSIS, which shall be
exempt from Republic Act No. 6758, otherwise known
as the Salary Standardization Law and Republic Act
No. 7430, otherwise known as the Attrition
Law. (emphasis supplied)
xxx xxx xxx
5. DBP (R.A. No. 8523)
Section 6. [Amending E.O. No. 81, Section 13]:
Section 13. Other Officers and Employees. - The Board of
Directors shall provide for an organization and staff of
officers and employees of the Bank and upon
recommendation of the President of the Bank, fix their
remunerations and other emoluments. All positions in the
Bank shall be governed by the compensation, position
classification system and qualification standards approved
by the Board of Directors based on a comprehensive job
analysis of actual duties and responsibilities. The
compensation plan shall be comparable with the prevailing
compensation plans in the private sector and shall be
subject to periodic review by the Board of Directors once
every two (2) years, without prejudice to yearly merit or
increases based on the Bank's productivity and
profitability. The Bank shall, therefore, be exempt from
existing laws, rules, and regulations on compensation,
position classification and qualification standards. The
Bank shall however, endeavor to make its system
conform as closely as possible with the principles
under Compensation and Position Classification Act
of 1989 (Republic Act No. 6758, as
amended). (emphasis supplied)
6. HGC (R.A. No. 8763)
Section 9. Powers, Functions and Duties of the Board of Directors.
- The Board shall have the following powers, functions and duties:
xxx xxx xxx
(e) To create offices or positions necessary for the efficient
management, operation and administration of the
Corporation: Provided, That all positions in the Home
Guaranty Corporation (HGC) shall be governed by a
compensation and position classification system and
qualifications standards approved by the Corporation's
Board of Directors based on a comprehensive job analysis
and audit of actual duties and responsibilities: Provided,
further, That the compensation plan shall be
comparable with the prevailing compensation plans in
the private sector and which shall be exempt from
Republic Act No. 6758, otherwise known as the Salary
Standardization Law, and from other laws, rules and
regulations on salaries and compensations; and to
establish a Provident Fund and determine the
Corporation's and the employee's contributions to the
Fund; (emphasis supplied)
xxx xxx xxx
7. PDIC (R.A. No. 9302)
Section 2. Section 2 of [Republic Act No. 3591, as amended] is
hereby further amended to read:
xxx xxx xxx
3.
xxx xxx xxx
A compensation structure, based on job evaluation studies
and wage surveys and subject to the Board's approval,
shall be instituted as an integral component of the
Corporation's human resource development
program: Provided, That all positions in the Corporation
shall be governed by a compensation, position
classification system and qualification standards approved
by the Board based on a comprehensive job analysis and
audit of actual duties and responsibilities. The
compensation plan shall be comparable with the
prevailing compensation plans of other government
financial institutions and shall be subject to review by the
Board no more than once every two (2) years without
prejudice to yearly merit reviews or increases based on
productivity and profitability. The Corporation shall
therefore be exempt from existing laws, rules and
regulations on compensation, position classification
and qualification standards. It shall however endeavor to
make its system conform as closely as possible with the
principles under Republic Act No. 6758, as amended.
(emphases supplied)
Thus, eleven years after the amendment of the BSP charter,
the rank-and-file of seven other GFIs were granted the
exemption that was specifically denied to the rank-and-file of
the BSP. And as if to add insult to petitioner's injury, even the
Securities and Exchange Commission (SEC) was granted the
same blanket exemption from the SSL in 2000! 39
The prior view on the constitutionality of R.A. No. 7653
was confined to an evaluation of its classification between the
rank-and-file and the officers of the BSP, found reasonable
because there were substantial distinctions that made real
differences between the two classes.
The above-mentioned subsequent enactments,
however, constitute significant changes in circumstance that
considerably alter the reasonability of the continued
operation of the last proviso of Section 15(c), Article II of
Republic Act No. 7653, thereby exposing the proviso to more
serious scrutiny. This time, the scrutiny relates to the
constitutionality of the classification - albeit made indirectly as a
consequence of the passage of eight other laws - between the
rank-and-file of the BSP and the seven other GFIs. The
classification must not only be reasonable, but must also apply
equally to all members of the class. The proviso may be fair on
its face and impartial in appearance but it cannot be grossly
discriminatory in its operation, so as practically to make unjust
distinctions between persons who are without differences.40
Stated differently, the second level of inquiry deals with the
following questions: Given that Congress chose to exempt other
GFIs (aside the BSP) from the coverage of the SSL, can the
exclusion of the rank-and-file employees of the BSP stand
constitutional scrutiny in the light of the fact that Congress did not
exclude the rank-and-file employees of the other GFIs? Is
Congress' power to classify so unbridled as to sanction unequal
and discriminatory treatment, simply because the inequity
manifested itself, not instantly through a single overt act, but
gradually and progressively, through seven separate acts of
Congress? Is the right to equal protection of the law bounded in
time and space that: (a) the right can only be invoked against a
classification made directly and deliberately, as opposed to a
discrimination that arises indirectly, or as a consequence of
several other acts; and (b) is the legal analysis confined to
determining the validity within the parameters of the statute or
ordinance (where the inclusion or exclusion is articulated), thereby
proscribing any evaluation vis-à-vis the grouping, or the lack
thereof, among several similar enactments made over a period of
time?
In this second level of scrutiny, the inequality of treatment cannot
be justified on the mere assertion that each exemption (granted to
the seven other GFIs) rests "on a policy determination by the
legislature." All legislative enactments necessarily rest on a
policy determination - even those that have been declared to
contravene the Constitution. Verily, if this could serve as a magic
wand to sustain the validity of a statute, then no due process and
equal protection challenges would ever prosper. There is nothing
inherently sacrosanct in a policy determination made by Congress
or by the Executive; it cannot run riot and overrun the ramparts of
protection of the Constitution.
In fine, the "policy determination" argument may support the
inequality of treatment between the rank-and-file and the officers
of the BSP, but it cannot justify the inequality of treatment between
BSP rank-and-file and other GFIs' who are similarly situated. It
fails to appreciate that what is at issue in the second level of
scrutiny is not the declared policy of each law per se, but the
oppressive results of Congress' inconsistent and unequal
policy towards the BSP rank-and-file and those of the seven other
GFIs. At bottom, the second challenge to the constitutionality of
Section 15(c), Article II of Republic Act No. 7653 is premised
precisely on the irrational discriminatory policy adopted by
Congress in its treatment of persons similarly situated. In the
field of equal protection, the guarantee that "no person shall be …
denied the equal protection of the laws" includes the prohibition
against enacting laws that allow invidious discrimination, directly
or indirectly. If a law has the effect of denying the equal
protection of the law, or permits such denial, it is unconstitutional.41
It is against this standard that the disparate treatment of the BSP
rank-and-file from the other GFIs cannot stand judicial scrutiny.
For as regards the exemption from the coverage of the SSL, there
exist no substantial distinctions so as to differentiate, the BSP
rank-and-file from the other rank-and-file of the seven GFIs. On
the contrary, our legal history shows that GFIs have long been
recognized as comprising one distinct class, separate from
other governmental entities.
Before the SSL, Presidential Decree (P.D.) No. 985
(1976) declared it as a State policy (1) to provide equal pay for
substantially equal work, and (2) to base differences in pay upon
substantive differences in duties and responsibilities, and
qualification requirements of the positions. P.D. No. 985 was
passed to address disparities in pay among similar or comparable
positions which had given rise to dissension among government
employees. But even then, GFIs and government-owned
and/or controlled corporations (GOCCs) were already
identified as a distinct class among government
employees. Thus, Section 2 also provided, "[t]hat notwithstanding
a standardized salary system established for all employees,
additional financial incentives may be established by government
corporation and financial institutions for their employees to be
supported fully from their corporate funds and for such technical
positions as may be approved by the President in critical
government agencies."42
The same favored treatment is made for the GFIs and the GOCCs
under the SSL. Section 3(b) provides that one of the principles
governing the Compensation and Position Classification System of
the Government is that: "[b]asic compensation for all personnel in
the government and government-owned or controlled corporations
and financial institutions shall generally be comparable with those
in the private sector doing comparable work, and must be in
accordance with prevailing laws on minimum wages."
Thus, the BSP and all other GFIs and GOCCs were under the
unified Compensation and Position Classification System of the
SSL,43 but rates of pay under the SSL were determined on the
basis of, among others, prevailing rates in the private sector for
comparable work. Notably, the Compensation and Position
Classification System was to be governed by the following
principles: (a) just and equitable wages, with the ratio of
compensation between pay distinctions maintained at equitable
levels;44 and (b) basic compensation generally comparable with the
private sector, in accordance with prevailing laws on minimum
wages.45 Also, the Department of Budget and Management was
directed to use, as guide for preparing the Index of Occupational
Services, the Benchmark Position Schedule, and the following
factors:46
(1) the education and experience required to perform the
duties and responsibilities of the positions;
(2) the nature and complexity of the work to be performed;
(3) the kind of supervision received;
(4) mental and/or physical strain required in the completion
of the work;
(5) nature and extent of internal and external relationships;
(6) kind of supervision exercised;
(7) decision-making responsibility;
(8) responsibility for accuracy of records and reports;
(9) accountability for funds, properties and equipment; and
(10) hardship, hazard and personal risk involved in the job.
The Benchmark Position Schedule enumerates the position titles
that fall within Salary Grades 1 to 20.
Clearly, under R.A. No. 6758, the rank-and-file of all GFIs were
similarly situated in all aspects pertaining to compensation and
position classification, in consonance with Section 5, Article IX-B of
the 1997 Constitution.47
Then came the enactment of the amended charter of the
BSP, implicitly exempting the Monetary Board from the SSL by
giving it express authority to determine and institute its own
compensation and wage structure. However, employees whose
positions fall under SG 19 and below were specifically limited to
the rates prescribed under the SSL.
Subsequent amendments to the charters of other GFIs
followed. Significantly, each government financial institution (GFI)
was not only expressly authorized to determine and institute its
own compensation and wage structure, but also explicitly
exempted - without distinction as to salary grade or position -
all employees of the GFI from the SSL.
It has been proffered that legislative deliberations justify the grant
or withdrawal of exemption from the SSL, based on the perceived
need "to fulfill the mandate of the institution concerned
considering, among others, that: (1) the GOCC or GFI is
essentially proprietary in character; (2) the GOCC or GFI is in
direct competition with their [sic] counterparts in the private sector,
not only in terms of the provisions of goods or services, but also in
terms of hiring and retaining competent personnel; and (3) the
GOCC or GFI are or were [sic] experiencing difficulties filling up
plantilla positions with competent personnel and/or retaining these
personnel. The need for the scope of exemption necessarily varies
with the particular circumstances of each institution, and the
corresponding variance in the benefits received by the employees
is merely incidental."
The fragility of this argument is manifest. First, the BSP is
the central monetary authority,48 and the banker of the
government and all its political subdivisions.49 It has the sole
power and authority to issue currency;50 provide policy directions in
the areas of money, banking, and credit; and supervise banks and
regulate finance companies and non-bank financial institutions
performing quasi-banking functions, including the exempted
GFIs.51 Hence, the argument that the rank-and-file employees of
the seven GFIs were exempted because of the importance of their
institution's mandate cannot stand any more than an empty sack
can stand.
Second, it is certainly misleading to say that "the need for the
scope of exemption necessarily varies with the particular
circumstances of each institution." Nowhere in the deliberations is
there a cogent basis for the exclusion of the BSP rank-and-file
from the exemption which was granted to the rank-and-file of the
other GFIs and the SEC. As point in fact, the BSP and the seven
GFIs are similarly situated in so far as Congress deemed it
necessary for these institutions to be exempted from the SSL.
True, the SSL-exemption of the BSP and the seven GFIs was
granted in the amended charters of each GFI, enacted separately
and over a period of time. But it bears emphasis that, while each
GFI has a mandate different and distinct from that of another, the
deliberations show that the raison d'être of the SSL-exemption
was inextricably linked to and for the most part based on factors
common to the eight GFIs, i.e., (1) the pivotal role they play in the
economy; (2) the necessity of hiring and retaining qualified and
effective personnel to carry out the GFI's mandate; and (3) the
recognition that the compensation package of these GFIs is not
competitive, and fall substantially below industry standards.
Considering further that (a) the BSP was the first GFI granted SSL
exemption; and (b) the subsequent exemptions of other GFIs did
not distinguish between the officers and the rank-and-file; it is
patent that the classification made between the BSP rank-and-
file and those of the other seven GFIs was inadvertent, and
NOT intended, i.e., it was not based on any substantial distinction
vis-à-vis the particular circumstances of each GFI. Moreover, the
exemption granted to two GFIs makes express reference
to allowance and fringe benefits similar to those extended to and
currently enjoyed by the employees and personnel of other
GFIs,52 underscoring that GFIs are a particular class within the
realm of government entities.
It is precisely this unpremeditated discrepancy in treatment of the
rank-and-file of the BSP - made manifest and glaring with each
and every consequential grant of blanket exemption from the SSL
to the other GFIs - that cannot be rationalized or justified. Even
more so, when the SEC - which is not a GFI - was given leave to
have a compensation plan that "shall be comparable with the
prevailing compensation plan in the [BSP] and other [GFIs],"53 then
granted a blanket exemption from the SSL, and its rank-and-file
endowed a more preferred treatment than the rank-and-file of the
BSP.
The violation to the equal protection clause becomes even more
pronounced when we are faced with this undeniable truth: that if
Congress had enacted a law for the sole purpose of exempting the
eight GFIs from the coverage of the SSL, the exclusion of the BSP
rank-and-file employees would have been devoid of any
substantial or material basis. It bears no moment, therefore, that
the unlawful discrimination was not a direct result arising from one
law. "Nemo potest facere per alium quod non potest facere per
directum." No one is allowed to do indirectly what he is prohibited
to do directly.
It has also been proffered that "similarities alone are not sufficient
to support the conclusion that rank-and-file employees of the BSP
may be lumped together with similar employees of the other
GOCCs for purposes of compensation, position classification and
qualification standards. The fact that certain persons have some
attributes in common does not automatically make them members
of the same class with respect to a legislative classification." Cited
is the ruling in Johnson v. Robinson:54 "this finding of similarity
ignores that a common characteristic shared by beneficiaries and
nonbeneficiaries alike, is not sufficient to invalidate a statute when
other characteristics peculiar to only one group rationally explain
the statute's different treatment of the two groups."
The reference to Johnson is inapropos. In Johnson, the US Court
sustained the validity of the classification as there
were quantitative and qualitative distinctions, expressly
recognized by Congress, which formed a rational basis for
the classification limiting educational benefits to military service
veterans as a means of helping them readjust to civilian life. The
Court listed the peculiar characteristics as follows:
First, the disruption caused by military service is
quantitatively greater than that caused by alternative
civilian service. A conscientious objector performing
alternative service is obligated to work for two years.
Service in the Armed Forces, on the other hand, involves a
six-year commitment…
xxx xxx xxx
Second, the disruptions suffered by military veterans and
alternative service performers are qualitatively different.
Military veterans suffer a far greater loss of personal
freedom during their service careers. Uprooted from
civilian life, the military veteran becomes part of the military
establishment, subject to its discipline and potentially
hazardous duty. Congress was acutely aware of the
peculiar disabilities caused by military service, in
consequence of which military servicemen have a special
need for readjustment benefits…55 (citations omitted)
In the case at bar, it is precisely the fact that as regards the
exemption from the SSL, there are no characteristics peculiar
only to the seven GFIs or their rank-and-file so as to justify
the exemption which BSP rank-and-file employees were
denied (not to mention the anomaly of the SEC getting one). The
distinction made by the law is not only superficial,56 but also
arbitrary. It is not based on substantial distinctions that make real
differences between the BSP rank-and-file and the seven other
GFIs.
Moreover, the issue in this case is not - as the dissenting opinion
of Mme. Justice Carpio-Morales would put it - whether "being an
employee of a GOCC or GFI is reasonable and sufficient basis for
exemption" from R.A. No. 6758. It is Congress itself that
distinguished the GFIs from other government agencies, not
once but eight times, through the enactment of R.A. Nos. 7653,
7907, 8282, 8289, 8291, 8523, 8763, and 9302. These laws may
have created a "preferred sub-class within government
employees," but the present challenge is not directed at the
wisdom of these laws. Rather, it is a legal conundrum involving the
exercise of legislative power, the validity of which must be
measured not only by looking at the specific exercise in and by
itself (R.A. No. 7653), but also as to the legal effects brought about
by seven separate exercises - albeit indirectly and without intent.
Thus, even if petitioner had not alleged "a comparable change in
the factual milieu as regards the compensation, position
classification and qualification standards of the employees of the
BSP (whether of the executive level or of the rank-and-file) since
the enactment of the new Central Bank Act" is of no moment.
In GSIS v. Montesclaros,57 this Court resolved the issue of
constitutionality notwithstanding that claimant had manifested that
she was no longer interested in pursuing the case, and even when
the constitutionality of the said provision was not squarely raised
as an issue, because the issue involved not only the claimant but
also others similarly situated and whose claims GSIS would also
deny based on the challenged proviso. The Court held that social
justice and public interest demanded the resolution of the
constitutionality of the proviso. And so it is with the
challenged proviso in the case at bar.
It bears stressing that the exemption from the SSL is
a "privilege" fully within the legislative prerogative to give or deny.
However, its subsequent grant to the rank-and-file of the seven
other GFIs and continued denial to the BSP rank-and-file
employees breached the latter's right to equal protection. In other
words, while the granting of a privilege per se is a matter of policy
exclusively within the domain and prerogative of Congress, the
validity or legality of the exercise of this prerogative is subject to
judicial review.58 So when the distinction made is superficial, and
not based on substantial distinctions that make real differences
between those included and excluded, it becomes a matter of
arbitrariness that this Court has the duty and the power to
correct.59 As held in the United Kingdom case of Hooper v.
Secretary of State for Work and Pensions,60 once the State has
chosen to confer benefits, "discrimination" contrary to law may
occur where favorable treatment already afforded to one group is
refused to another, even though the State is under no obligation to
provide that favorable treatment. 61
The disparity of treatment between BSP rank-and-file and the
rank-and-file of the other seven GFIs definitely bears the
unmistakable badge of invidious discrimination - no one can, with
candor and fairness, deny the discriminatory character of the
subsequent blanket and total exemption of the seven other GFIs
from the SSL when such was withheld from the BSP. Alikes are
being treated as unalikes without any rational basis.
Again, it must be emphasized that the equal protection clause
does not demand absolute equality but it requires that all
persons shall be treated alike, under like circumstances and
conditions both as to privileges conferred and liabilities
enforced. Favoritism and undue preference cannot be allowed.
For the principle is that equal protection and security shall be
given to every person under circumstances which, if not identical,
are analogous. If law be looked upon in terms of burden or
charges, those that fall within a class should be treated in the
same fashion; whatever restrictions cast on some in the group is
equally binding on the rest.62
In light of the lack of real and substantial distinctions that would
justify the unequal treatment between the rank-and-file of BSP
from the seven other GFIs, it is clear that the enactment of the
seven subsequent charters has rendered the continued application
of the challenged proviso anathema to the equal protection of the
law, and the same should be declared as an outlaw.
IV.
Equal Protection Under International Lens
In our jurisdiction, the standard and analysis of equal protection
challenges in the main have followed the "rational basis" test,
coupled with a deferential attitude to legislative classifications63 and
a reluctance to invalidate a law unless there is a showing of a
clear and unequivocal breach of the Constitution. 64
A. Equal Protection in the United States
In contrast, jurisprudence in the U.S. has gone beyond the
static "rational basis" test. Professor Gunther highlights the
development in equal protection jurisprudential analysis, to wit: 65
Traditionally, equal protection supported only minimal
judicial intervention in most contexts. Ordinarily, the
command of equal protection was only that government
must not impose differences in treatment "except upon
some reasonable differentiation fairly related to the object
of regulation." The old variety of equal protection
scrutiny focused solely on the means used by the
legislature: it insisted merely that the classification in the
statute reasonably relates to the legislative
purpose. Unlike substantive due process, equal protection
scrutiny was not typically concerned with identifying
"fundamental values" and restraining legislative ends. And
usually the rational classification requirement was
readily satisfied: the courts did not demand a tight fit
between classification and purpose; perfect congruence
between means and ends was not required.
xxx xxx xxx
[From marginal intervention to major cutting edge: The
Warren Court's "new equal protection" and the two-tier
approach.]
From its traditional modest role, equal
protection burgeoned into a major intervention tool
during the Warren era, especially in the 1960s. The
Warren Court did not abandon the deferential ingredients
of the old equal protection: in most areas of economic and
social legislation, the demands imposed by equal
protection remained as minimal as ever…But the Court
launched an equal protection revolution by finding large
new areas for strict rather than deferential scrutiny. A
sharply differentiated two-tier approach evolved by the
late 1960s: in addition to the deferential "old" equal
protection, a "new" equal protection, connoting strict
scrutiny, arose…. The intensive review associated with
the new equal protection imposed two demands - a
demand not only as to means but also one as to ends.
Legislation qualifying for strict scrutiny required a far closer
fit between classification and statutory purpose than the
rough and ready flexibility traditionally tolerated by the old
equal protection: means had to be shown "necessary"
to achieve statutory ends, not merely "reasonably
related" ones. Moreover, equal protection became a
source of ends scrutiny as well: legislation in the areas of
the new equal protection had to be justified by "compelling"
state interests, not merely the wide spectrum of
"legitimate" state ends.
The Warren Court identified the areas appropriate for
strict scrutiny by searching for two characteristics: the
presence of a "suspect" classification; or an impact on
"fundamental" rights or interests. In the category of
"suspect classifications," the Warren Court's major
contribution was to intensify the strict scrutiny in the
traditionally interventionist area of racial classifications. But
other cases also suggested that there might be more other
suspect categories as well: illegitimacy and wealth for
example. But it was the 'fundamental interests" ingredient
of the new equal protection that proved particularly
dynamic, open-ended, and amorphous….. [Other
fundamental interests included voting, criminal appeals,
and the right of interstate travel ….]
xxx xxx xxx
The Burger Court and Equal Protection.
The Burger Court was reluctant to expand the scope of
the new equal protection, although its best established
ingredient retains vitality. There was also mounting
discontent with the rigid two-tier formulations of the Warren
Court's equal protection doctrine. It was prepared to use
the clause as an interventionist tool without resorting to the
strict language of the new equal protection…. [Among the
fundamental interests identified during this time were
voting and access to the ballot, while "suspect"
classifications included sex, alienage and illegitimacy.]
xxx xxx xxx
Even while the two-tier scheme has often been adhered to
in form, there has also been an increasingly noticeable
resistance to the sharp difference between deferential "old"
and interventionist "new" equal protection. A number of
justices sought formulations that would blur the sharp
distinctions of the two-tiered approach or that would
narrow the gap between strict scrutiny and deferential
review. The most elaborate attack came from Justice
Marshall, whose frequently stated position was developed
most elaborately in his dissent in the Rodriguez case: 66
The Court apparently seeks to establish [that] equal
protection cases fall into one of two neat categories which
dictate the appropriate standard of review - strict scrutiny
or mere rationality. But this (sic) Court's [decisions] defy
such easy categorization. A principled reading of what this
Court has done reveals that it has applied a spectrum of
standards in reviewing discrimination allegedly violative of
the equal protection clause. This spectrum clearly
comprehends variations in the degree of care with which
Court will scrutinize particular classification, depending, I
believe, on the constitutional and societal importance of
the interests adversely affected and the recognized
invidiousness of the basis upon which the particular
classification is drawn.
Justice Marshall's "sliding scale" approach describes
many of the modern decisions, although it is a formulation
that the majority refused to embrace. But the Burger
Court's results indicate at least two significant
changes in equal protection law: First, invocation of the
 "old" equal protection formula no longer signals, as it did
with the Warren Court, an extreme deference to legislative
classifications and a virtually automatic validation of
challenged statutes. Instead, several cases, even while
voicing the minimal "rationality" "hands-off" standards of
the old equal protection, proceed to find the statute
unconstitutional. Second, in some areas the modern
Court has put forth standards for equal protection review
that, while clearly more intensive than the deference of the
"old" equal protection, are less demanding than the
strictness of the "new" equal protection. Sex discrimination
is the best established example of an "intermediate" level
of review. Thus, in one case, the Court said that
"classifications by gender must
serve important governmental objectives and must
be substantially related to achievement of those
objectives." That standard is "intermediate" with respect to
both ends and means: where ends must be "compelling" to
survive strict scrutiny and merely "legitimate" under the
"old" mode, "important" objectives are required here; and
where means must be "necessary" under the "new" equal
protection, and merely "rationally related" under the "old"
equal protection, they must be "substantially related" to
survive the "intermediate" level of review. (emphasis
supplied, citations omitted)
B. Equal Protection in Europe
The United Kingdom and other members of the European
Community have also gone forward in discriminatory legislation
and jurisprudence. Within the United Kingdom domestic law, the
most extensive list of protected grounds can be found in Article 14
of the European Convention on Human Rights (ECHR). It
prohibits discrimination on grounds such as "sex, race, colour,
language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other
status." This list is illustrative and not exhaustive. Discrimination
on the basis of race, sex and religion is regarded as grounds
that require strict scrutiny. A further indication that certain forms
of discrimination are regarded as particularly suspect under the
Covenant can be gleaned from Article 4, which, while allowing
states to derogate from certain Covenant articles in times of
national emergency, prohibits derogation by measures that
discriminate solely on the grounds of "race, colour, language,
religion or social origin."67
Moreover, the European Court of Human Rights has developed
a test of justification which varies with the ground of discrimination.
In the Belgian Linguistics case68 the European Court set the
standard of justification at a low level: discrimination would
contravene the Convention only if it had no legitimate aim, or there
was no reasonable relationship of proportionality between the
means employed and the aim sought to be realised.69 But over the
years, the European Court has developed a hierarchy of
grounds covered by Article 14 of the ECHR, a much higher
level of justification being required in respect of those
regarded as "suspect" (sex, race, nationality, illegitimacy, or
sexual orientation) than of others. Thus, in Abdulaziz, 70 the
European Court declared that:
. . . [t]he advancement of the equality of the sexes is today
a major goal in the member States of the Council of
Europe. This means that very weighty reasons would have
to be advanced before a difference of treatment on the
ground of sex could be regarded as compatible with the
Convention.
And in Gaygusuz v. Austria,71 the European Court held
that "very weighty reasons would have to be put forward before
the Court could regard a difference of treatment based exclusively
on the ground of nationality as compatible with the
Convention."72 The European Court will then permit States a very
much narrower margin of appreciation in relation to
discrimination on grounds of sex, race, etc., in the application of
the Convention rights than it will in relation to distinctions drawn by
states between, for example, large and small land-owners. 73
C. Equality under International Law
The principle of equality has long been recognized under
international law. Article 1 of the Universal Declaration of
Human Rights proclaims that all human beings are born free
and equal in dignity and rights. Non-discrimination, together
with equality before the law and equal protection of the law without
any discrimination, constitutes basic principles in the protection of
human rights. 74
Most, if not all, international human rights instruments include
some prohibition on discrimination and/or provisions about
equality.75 The general international provisions pertinent to
discrimination and/or equality are the International Covenant on
Civil and Political Rights (ICCPR);76 the International Covenant on
Economic, Social and Cultural Rights (ICESCR); the International
Convention on the Elimination of all Forms of Racial Discrimination
(CERD);77 the Convention on the Elimination of all Forms of
Discrimination against Women (CEDAW); and the Convention on
the Rights of the Child (CRC).
In the broader international context, equality is also enshrined in
regional instruments such as the American Convention on
Human Rights;78 the African Charter on Human and People's
Rights;79 the European Convention on Human Rights;80 the
European Social Charter of 1961 and revised Social Charter of
1996; and the European Union Charter of Rights (of particular
importance to European states). Even the Council of the League
of Arab States has adopted the Arab Charter on Human Rights in
1994, although it has yet to be ratified by the Member States of the
League.81
The equality provisions in these instruments do not merely
function as traditional "first generation" rights, commonly
viewed as concerned only with constraining rather than
requiring State action. Article 26 of the ICCPR requires
"guarantee[s]" of "equal and effective protection against
discrimination" while Articles 1 and 14 of the American and
European Conventions oblige States Parties "to ensure ... the full
and free exercise of [the rights guaranteed] ... without any
discrimination" and to "secure without discrimination" the
enjoyment of the rights guaranteed.82 These provisions impose a
measure of positive obligation on States Parties to take steps to
eradicate discrimination.
In the employment field, basic detailed minimum standards
ensuring equality and prevention of discrimination, are laid down in
the ICESCR83 and in a very large number of Conventions
administered by the International Labour Organisation, a United
Nations body. 84 Additionally, many of the other international and
regional human rights instruments have specific provisions relating
to employment.85
The United Nations Human Rights Committee has also gone
beyond the earlier tendency to view the prohibition against
discrimination (Article 26) as confined to the ICCPR
rights.86 In Broeks87 and Zwaan-de Vries,88 the issue before the
Committee was whether discriminatory provisions in the Dutch
Unemployment Benefits Act (WWV) fell within the scope of Article
26. The Dutch government submitted that discrimination in social
security benefit provision was not within the scope of Article 26, as
the right was contained in the ICESCR and not the ICCPR. They
accepted that Article 26 could go beyond the rights contained in
the Covenant to other civil and political rights, such as
discrimination in the field of taxation, but contended that Article 26
did not extend to the social, economic, and cultural rights
contained in ICESCR. The Committee rejected this argument. In
its view, Article 26 applied to rights beyond the Covenant including
the rights in other international treaties such as the right to social
security found in ICESCR:
Although Article 26 requires that legislation should prohibit
discrimination, it does not of itself contain any obligation
with respect to the matters that may be provided for by
legislation. Thus it does not, for example, require any state
to enact legislation to provide for social security. However,
when such legislation is adopted in the exercise of a
State's sovereign power, then such legislation must
comply with Article 26 of the Covenant.89
Breaches of the right to equal protection occur directly or indirectly.
A classification may be struck down if it has the purpose or
effect of violating the right to equal protection. International law
recognizes that discrimination may occur indirectly, as the
Human Rights Committee90 took into account the definitions of
discrimination adopted by CERD and CEDAW in declaring that:
 . . . "discrimination" as used in the [ICCPR] should be
understood to imply any distinction, exclusion, restriction or
preference which is based on any ground such as race,
colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status,
and which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise by all
persons, on an equal footing, of all rights and
freedoms. 91 (emphasis supplied)
Thus, the two-tier analysis made in the case at bar of the
challenged provision, and its conclusion of
unconstitutionality by subsequent operation, are in cadence
and in consonance with the progressive trend of other
jurisdictions and in international law. There should be no
hesitation in using the equal protection clause as a major cutting
edge to eliminate every conceivable irrational discrimination in our
society. Indeed, the social justice imperatives in the Constitution,
coupled with the special status and protection afforded to labor,
compel this approach.92
Apropos the special protection afforded to labor under our
Constitution and international law, we held in International
School Alliance of Educators v. Quisumbing: 93
That public policy abhors inequality and discrimination is
beyond contention. Our Constitution and laws reflect the
policy against these evils. The Constitution in the Article on
Social Justice and Human Rights exhorts Congress to
"give highest priority to the enactment of measures that
protect and enhance the right of all people to human
dignity, reduce social, economic, and political inequalities."
The very broad Article 19 of the Civil Code requires every
person, "in the exercise of his rights and in the
performance of his duties, [to] act with justice, give
everyone his due, and observe honesty and good faith."
International law, which springs from general principles of
law, likewise proscribes discrimination. General principles
of law include principles of equity, i.e., the general
principles of fairness and justice, based on the test of what
is reasonable. The Universal Declaration of Human Rights,
the International Covenant on Economic, Social, and
Cultural Rights, the International Convention on the
Elimination of All Forms of Racial Discrimination, the
Convention against Discrimination in Education, the
Convention (No. 111) Concerning Discrimination in
Respect of Employment and Occupation - all embody the
general principle against discrimination, the very antithesis
of fairness and justice. The Philippines, through its
Constitution, has incorporated this principle as part of its
national laws.
In the workplace, where the relations between capital and
labor are often skewed in favor of capital, inequality and
discrimination by the employer are all the more
reprehensible.
The Constitution specifically provides that labor is entitled
to "humane conditions of work." These conditions are not
restricted to the physical workplace - the factory, the office
or the field - but include as well the manner by which
employers treat their employees.
The Constitution also directs the State to promote "equality
of employment opportunities for all." Similarly, the Labor
Code provides that the State shall "ensure equal work
opportunities regardless of sex, race or creed." It would be
an affront to both the spirit and letter of these provisions if
the State, in spite of its primordial obligation to promote
and ensure equal employment opportunities, closes its
eyes to unequal and discriminatory terms and conditions of
employment.
xxx xxx xxx
Notably, the International Covenant on Economic, Social,
and Cultural Rights, in Article 7 thereof, provides:
 The States Parties to the present Covenant recognize the
right of everyone to the enjoyment of just and [favorable]
conditions of work, which ensure, in particular:
a. Remuneration which provides all workers, as a
minimum, with:
i. Fair wages and equal remuneration for
work of equal value without distinction of
any kind, in particular women being
guaranteed conditions of work not inferior
to those enjoyed by men, with equal pay
for equal work;
xxx xxx xxx
The foregoing provisions impregnably institutionalize in this
jurisdiction the long honored legal truism of "equal pay for
equal work." Persons who work with substantially equal
qualifications, skill, effort and responsibility, under similar
conditions, should be paid similar salaries. (citations
omitted)
Congress retains its wide discretion in providing for a valid
classification, and its policies should be accorded recognition and
respect by the courts of justice except when they run afoul of the
Constitution.94 The deference stops where the classification
violates a fundamental right, or prejudices persons accorded
special protection by the Constitution. When these violations
arise, this Court must discharge its primary role as the vanguard of
constitutional guaranties, and require a stricter and more
exacting adherence to constitutional limitations. Rational basis
should not suffice.
Admittedly, the view that prejudice to persons accorded special
protection by the Constitution requires a stricter judicial scrutiny
finds no support in American or English jurisprudence.
Nevertheless, these foreign decisions and authorities are not per
se controlling in this jurisdiction. At best, they are persuasive and
have been used to support many of our decisions.95 We should not
place undue and fawning reliance upon them and regard them as
indispensable mental crutches without which we cannot come to
our own decisions through the employment of our own
endowments. We live in a different ambience and must decide our
own problems in the light of our own interests and needs, and of
our qualities and even idiosyncrasies as a people, and always with
our own concept of law and justice.96 Our laws must be construed
in accordance with the intention of our own lawmakers and such
intent may be deduced from the language of each law and the
context of other local legislation related thereto. More importantly,
they must be construed to serve our own public interest which is
the be-all and the end-all of all our laws. And it need not be
stressed that our public interest is distinct and different from
others.97
In the 2003 case of Francisco v. House of Representatives, this
Court has stated that: "[A]merican jurisprudence and authorities,
much less the American Constitution, are of dubious application
for these are no longer controlling within our jurisdiction and have
only limited persuasive merit insofar as Philippine constitutional
law is concerned....[I]n resolving constitutional disputes, [this
Court] should not be beguiled by foreign jurisprudence some of
which are hardly applicable because they have been dictated by
different constitutional settings and needs."98 Indeed, although the
Philippine Constitution can trace its origins to that of the United
States, their paths of development have long since diverged. 99
Further, the quest for a better and more "equal" world calls for the
use of equal protection as a tool of effective judicial intervention.
Equality is one ideal which cries out for bold attention and
action in the Constitution. The Preamble proclaims
"equality" as an ideal precisely in protest against crushing
inequities in Philippine society. The command to promote
social justice in Article II, Section 10, in "all phases of
national development," further explicitated in Article XIII,
are clear commands to the State to take affirmative action
in the direction of greater equality.… [T]here is thus in the
Philippine Constitution no lack of doctrinal support for a
more vigorous state effort towards achieving a reasonable
measure of equality.100
Our present Constitution has gone further in guaranteeing vital
social and economic rights to marginalized groups of society,
including labor.101 Under the policy of social justice, the law bends
over backward to accommodate the interests of the working class
on the humane justification that those with less privilege in life
should have more in law.102 And the obligation to afford protection
to labor is incumbent not only on the legislative and executive
branches but also on the judiciary to translate this pledge into a
living reality.103 Social justice calls for the humanization of laws and
the equalization of social and economic forces by the State so that
justice in its rational and objectively secular conception may at
least be approximated.104
V.
A Final Word
Finally, concerns have been raised as to the propriety of a ruling
voiding the challenged provision. It has been proffered that the
remedy of petitioner is not with this Court, but with Congress,
which alone has the power to erase any inequity perpetrated by
R.A. No. 7653. Indeed, a bill proposing the exemption of the BSP
rank-and-file from the SSL has supposedly been filed.
Under most circumstances, the Court will exercise judicial restraint
in deciding questions of constitutionality, recognizing the broad
discretion given to Congress in exercising its legislative power.
Judicial scrutiny would be based on the "rational basis" test, and
the legislative discretion would be given deferential treatment. 105
But if the challenge to the statute is premised on the denial of
a fundamental right, or the perpetuation of prejudice against
persons favored by the Constitution with special protection,
judicial scrutiny ought to be more strict. A weak and watered
down view would call for the abdication of this Court's solemn duty
to strike down any law repugnant to the Constitution and the rights
it enshrines. This is true whether the actor committing the
unconstitutional act is a private person or the government itself or
one of its instrumentalities. Oppressive acts will be struck down
regardless of the character or nature of the actor. 106
Accordingly, when the grant of power is qualified,
conditional or subject to limitations, the issue on whether
or not the prescribed qualifications or conditions have been
met, or the limitations respected, is justiciable or non-
political, the crux of the problem being one of legality or
validity of the contested act, not its wisdom. Otherwise,
said qualifications, conditions or limitations - particularly
those prescribed or imposed by the Constitution - would be
set at naught. What is more, the judicial inquiry into such
issue and the settlement thereof are the main functions of
courts of justice under the Presidential form of government
adopted in our 1935 Constitution, and the system of
checks and balances, one of its basic predicates. As a
consequence, We have neither the authority nor the
discretion to decline passing upon said issue, but are
under the ineluctable obligation - made particularly
more exacting and peremptory by our oath, as
members of the highest Court of the land, to support
and defend the Constitution - to settle it. This explains
why, in Miller v. Johnson, it was held that courts have a
"duty, rather than a power", to determine whether another
branch of the government has "kept within constitutional
limits." Not satisfied with this postulate, the court went
farther and stressed that, if the Constitution provides how it
may be amended - as it is in our 1935 Constitution - "then,
unless the manner is followed, the judiciary as the
interpreter of that constitution, will declare the amendment
invalid." In fact, this very Court - speaking through Justice
Laurel, an outstanding authority on Philippine
Constitutional Law, as well as one of the highly respected
and foremost leaders of the Convention that drafted the
1935 Constitution - declared, as early as July 15, 1936,
that "(i)n times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper
allocation of powers between the several departments" of
the government.107 (citations omitted; emphasis supplied)
In the case at bar, the challenged proviso operates on the basis of IN VIEW WHEREOF, we hold that the continued operation and
the salary grade or officer-employee status. It is akin to a implementation of the last proviso of Section 15(c), Article II of
distinction based on economic class and status, with the Republic Act No. 7653 is unconstitutional.
higher grades as recipients of a benefit specifically withheld from
the lower grades. Officers of the BSP now receive higher Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Sandoval-
compensation packages that are competitive with the industry, Gutierrez, Austria-Martinez, Azcuna, Tinga, and Chico-Nazario,
while the poorer, low-salaried employees are limited to the rates JJ., concur.
prescribed by the SSL. The implications are quite disturbing: BSP
rank-and-file employees are paid the strictly regimented rates of Panganiban, Carpio, Carpio-Morales, and Garcia, JJ., see
the SSL while employees higher in rank - possessing higher and dissenting.
better education and opportunities for career advancement - are Corona, and Callejo, Sr., JJ., on leave.
given higher compensation packages to entice them to
stay. Considering that majority, if not all, the rank-and-file
employees consist of people whose status and rank in life are
less and limited, especially in terms of job marketability, it is
they - and not the officers - who have the real economic and
financial need for the adjustment This is in accord with the G.R. No. 190582 April 8, 2010
policy of the Constitution "to free the people from poverty, provide
adequate social services, extend to them a decent standard of ANG LADLAD LGBT PARTY represented herein by its Chair,
living, and improve the quality of life for all."108 Any act of DANTON REMOTO, Petitioner,
Congress that runs counter to this vs.
constitutional desideratum deserves strict scrutiny by this COMMISSION ON ELECTIONS Respondent.
Court before it can pass muster.
DECISION
To be sure, the BSP rank-and-file employees merit greater
concern from this Court. They represent the more impotent rank- DEL CASTILLO, J.:
and-file government employees who, unlike employees in the
private sector, have no specific right to organize as a collective ... [F]reedom to differ is not limited to things that do not matter
bargaining unit and negotiate for better terms and conditions of much. That would be a mere shadow of freedom. The test of its
employment, nor the power to hold a strike to protest unfair labor substance is the right to differ as to things that touch the heart of
practices. Not only are they impotent as a labor unit, but their the existing order.
efficacy to lobby in Congress is almost nil as R.A. No. 7653
effectively isolated them from the other GFI rank-and-file in Justice Robert A. Jackson
compensation. These BSP rank-and-file employees represent
the politically powerless and they should not be compelled to
seek a political solution to their unequal and iniquitous West Virginia State Board of Education v. Barnette1
treatment. Indeed, they have waited for many years for the
legislature to act. They cannot be asked to wait some more for One unavoidable consequence of everyone having the freedom to
discrimination cannot be given any waiting time. Unless the equal choose is that others may make different choices – choices we
protection clause of the Constitution is a mere platitude, it is the would not make for ourselves, choices we may disapprove of,
Court's duty to save them from reasonless discrimination. even choices that may shock or offend or anger us. However,
choices are not to be legally prohibited merely because they are
different, and the right to disagree and debate about important
questions of public policy is a core value protected by our Bill of
Rights. Indeed, our democracy is built on genuine recognition of,
and respect for, diversity and difference in opinion.
Since ancient times, society has grappled with deep
disagreements about the definitions and demands of morality. In
many cases, where moral convictions are concerned, harmony
among those theoretically opposed is an insurmountable goal. Yet
herein lies the paradox – philosophical justifications about what is
moral are indispensable and yet at the same time powerless to
create agreement. This Court recognizes, however, that practical
solutions are preferable to ideological stalemates; accommodation
is better than intransigence; reason more worthy than rhetoric.
This will allow persons of diverse viewpoints to live together, if not
harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court,
with an application for a writ of preliminary mandatory injunction,
filed by Ang Ladlad LGBT Party (Ang Ladlad) against the
Resolutions of the Commission on Elections (COMELEC) dated
November 11, 20092 (the First Assailed Resolution) and December
16, 20093 (the Second Assailed Resolution) in SPP No. 09-228
(PL) (collectively, the Assailed Resolutions). The case has its roots
in the COMELEC’s refusal to accredit Ang Ladlad as a party-list
organization under Republic Act (RA) No. 7941, otherwise known
as the Party-List System Act.4
Ang Ladlad is an organization composed of men and women who
identify themselves as lesbians, gays, bisexuals, or trans-
gendered individuals (LGBTs). Incorporated in 2003, Ang
Ladlad first applied for registration with the COMELEC in 2006.
The application for accreditation was denied on the ground that
the organization had no substantial membership base. On August
17, 2009, Ang Ladlad again filed a Petition5 for registration with the
COMELEC.
Before the COMELEC, petitioner argued that the LGBT community
is a marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender
identity; that LGBTs are victims of exclusion, discrimination, and
violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang
Ladlad complied with the 8-point guidelines enunciated by this
Court in Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections.6 Ang Ladlad laid out its national membership base
consisting of individual members and organizational supporters,
and outlined its platform of governance.7
On November 11, 2009, after admitting the petitioner’s evidence,
the COMELEC (Second Division) dismissed the Petition on moral
grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner
defines the Filipino Lesbian, Gay, Bisexual and Transgender
(LGBT) Community, thus:
x x x a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual orientation and
gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person’s capacity for profound emotional,
affectional and sexual attraction to, and intimate and sexual
relations with, individuals of a different gender, of the same
gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that
petitioner tolerates immorality which offends religious beliefs. In
Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their
women did change the natural use into that which is against
nature: And likewise also the men, leaving the natural use of the
woman, burned in their lust one toward another; men with men
working that which is unseemly, and receiving in themselves that
recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are
indeed a people transgressing beyond bounds." (7.81) "And we
rained down on them a shower (of brimstone): Then see what was
the end of those who indulged in sin and crime!" (7:84) "He said:
"O my Lord! Help Thou me against people who do mischief"
(29:30).
As correctly pointed out by the Law Department in its Comment
dated October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as
indicated in the Petition’s par. 6F: ‘Consensual partnerships or
relationships by gays and lesbians who are already of age’. It is
further indicated in par. 24 of the Petition which waves for the
record: ‘In 2007, Men Having Sex with Men or MSMs in the
Philippines were estimated as 670,000 (Genesis 19 is the history
of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license,
relationship, or accreditation. Hence, pertinent provisions of the
Civil Code and the Revised Penal Code are deemed part of the
requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which
defines nuisance as ‘Any act, omission, establishment, business,
condition of property, or anything else which x x x (3) shocks,
defies; or disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: ‘The contracting
parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided they are not
contrary to law, morals, good customs, public order or public
policy. Art 1409 of the Civil Code provides that ‘Contracts whose
cause, object or purpose is contrary to law, morals, good customs,
public order or public policy’ are inexistent and void from the
beginning.
Finally to safeguard the morality of the Filipino community, the
Revised Penal Code, as amended, penalizes ‘Immoral doctrines,
obscene publications and exhibitions and indecent shows’ as
follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions,
and indecent shows. — The penalty of prision mayor or a fine
ranging from six thousand to twelve thousand pesos, or both such
imprisonment and fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines
openly contrary to public morals;
2. (a) The authors of obscene literature, published with
their knowledge in any form; the editors publishing such
literature; and the owners/operators of the establishment
selling the same;
(b) Those who, in theaters, fairs, cinematographs
or any other place, exhibit indecent or immoral
plays, scenes, acts or shows, it being understood
that the obscene literature or indecent or immoral
plays, scenes, acts or shows, whether live or in
film, which are prescribed by virtue hereof, shall
include those which: (1) glorify criminals or
condone crimes; (2) serve no other purpose but to
satisfy the market for violence, lust or pornography;
(3) offend any race or religion; (4) tend to abet
traffic in and use of prohibited drugs; and (5) are
contrary to law, public order, morals, good
customs, established policies, lawful orders,
decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints,
engravings, sculpture or literature which are offensive to
morals.
Petitioner should likewise be denied accreditation not only for
advocating immoral doctrines but likewise for not being truthful
when it said that it "or any of its nominees/party-list
representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will be
exposing our youth to an environment that does not conform to the
teachings of our faith. Lehman Strauss, a famous bible teacher
and writer in the U.S.A. said in one article that "older practicing
homosexuals are a threat to the youth." As an agency of the
government, ours too is the State’s avowed duty under Section 13,
Article II of the Constitution to protect our youth from moral and
spiritual degradation.8
When Ang Ladlad sought reconsideration,9 three commissioners
voted to overturn the First Assailed Resolution (Commissioners
Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando
Velasco), while three commissioners voted to deny Ang
Ladlad’s Motion for Reconsideration (Commissioners Nicodemo T.
Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC
Chairman, breaking the tie and speaking for the majority in his
Separate Opinion, upheld the First Assailed Resolution, stating
that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-
list system. Even assuming that it has properly proven its under-
representation and marginalization, it cannot be said that Ladlad’s
expressed sexual orientations per se would benefit the nation as a
whole.
Section 2 of the party-list law unequivocally states that the
purpose of the party-list system of electing congressional
representatives is to enable Filipino citizens belonging to
marginalized and under-represented sectors, organizations and
parties, and who lack well-defined political constituencies but who
could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become
members of the House of Representatives.
If entry into the party-list system would depend only on the ability
of an organization to represent its constituencies, then all
representative organizations would have found themselves into
the party-list race. But that is not the intention of the framers of the
law. The party-list system is not a tool to advocate tolerance and
acceptance of misunderstood persons or groups of persons.
Rather, the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are also the
nation’s – only that their interests have not been brought to the
attention of the nation because of their under representation. Until
the time comes when Ladlad is able to justify that having mixed
sexual orientations and transgender identities is beneficial to the
nation, its application for accreditation under the party-list system
will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades
Philippine jurisprudence, courts do not recognize lesbians, gays,
homosexuals, and bisexuals (LGBT) as a "special class" of
individuals. x x x Significantly, it has also been held that
homosexuality is not a constitutionally protected fundamental right,
and that "nothing in the U.S. Constitution discloses a comparable
intent to protect or promote the social or legal equality of
homosexual relations," as in the case of race or religion or belief.
xxxx
Thus, even if society’s understanding, tolerance, and acceptance
of LGBT’s is elevated, there can be no denying that Ladlad
constituencies are still males and females, and they will remain
either male or female protected by the same Bill of Rights that
applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian
or Muslim religious practices. Neither is there any attempt to any
particular religious group’s moral rules on Ladlad. Rather, what are
being adopted as moral parameters and precepts are generally
accepted public morals. They are possibly religious-based, but as
a society, the Philippines cannot ignore its more than 500 years of
Muslim and Christian upbringing, such that some moral precepts
espoused by said religions have sipped [sic] into society and these
are not publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of
the law of the land. Article 201 of the Revised Penal Code
imposes the penalty of prision mayor upon "Those who shall
publicly expound or proclaim doctrines openly contrary to public
morals." It penalizes "immoral doctrines, obscene publications and
exhibition and indecent shows." "Ang Ladlad" apparently falls
under these legal provisions. This is clear from its Petition’s
paragraph 6F: "Consensual partnerships or relationships by gays
and lesbians who are already of age’ It is further indicated in par.
24 of the Petition which waves for the record: ‘In 2007, Men
Having Sex with Men or MSMs in the Philippines were estimated
as 670,000. Moreoever, Article 694 of the Civil Code defines
"nuisance" as any act, omission x x x or anything else x x x which
shocks, defies or disregards decency or morality x x x." These are
all unlawful.10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the
Court annul the Assailed Resolutions and direct the COMELEC to
grant Ang Ladlad’s application for accreditation. Ang Ladlad also
sought the issuance ex parte of a preliminary mandatory injunction
against the COMELEC, which had previously announced that it
would begin printing the final ballots for the May 2010 elections by
January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General
(OSG) to file its Comment on behalf of COMELEC not later than
12:00 noon of January 11, 2010.11 Instead of filing a Comment,
however, the OSG filed a Motion for Extension, requesting that it
be given until January 16, 2010 to Comment.12 Somewhat
surprisingly, the OSG later filed a Comment in support of
petitioner’s application.13 Thus, in order to give COMELEC the
opportunity to fully ventilate its position, we required it to file its
own comment.14 The COMELEC, through its Law Department,
filed its Comment on February 2, 2010.15
In the meantime, due to the urgency of the petition, we issued a
temporary restraining order on January 12, 2010, effective
immediately and continuing until further orders from this Court,
directing the COMELEC to cease and desist from implementing
the Assailed Resolutions.16
Also, on January 13, 2010, the Commission on Human Rights
(CHR) filed a Motion to Intervene or to Appear as Amicus Curiae,
attaching thereto its Comment-in-Intervention.17 The CHR opined
that the denial of Ang Ladlad’s petition on moral grounds violated
the standards and principles of the Constitution, the Universal
Declaration of Human Rights (UDHR), and the International
Covenant on Civil and Political Rights (ICCPR). On January 19,
2010, we granted the CHR’s motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to
Intervene18 which motion was granted on February 2, 2010.19
The Parties’ Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it
justified the exclusion by using religious dogma, violated the
constitutional guarantees against the establishment of religion.
Petitioner also claimed that the Assailed Resolutions contravened
its constitutional rights to privacy, freedom of speech and
assembly, and equal protection of laws, as well as constituted
violations of the Philippines’ international obligations against
discrimination based on sexual orientation.
The OSG concurred with Ang Ladlad’s petition and argued that the
COMELEC erred in denying petitioner’s application for registration
since there was no basis for COMELEC’s allegations of
immorality. It also opined that LGBTs have their own special
interests and concerns which should have been recognized by the
COMELEC as a separate classification. However, insofar as the
purported violations of petitioner’s freedom of speech, expression,
and assembly were concerned, the OSG maintained that there
had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not
have a concrete and genuine national political agenda to benefit
the nation and that the petition was validly dismissed on moral
grounds. It also argued for the first time that the LGBT sector is not
among the sectors enumerated by the Constitution and RA 7941,
and that petitioner made untruthful statements in its petition when
it alleged its national existence contrary to actual verification
reports by COMELEC’s field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and
Republic Act No. 7941
The COMELEC denied Ang Ladlad’s application for registration on
the ground that the LGBT sector is neither enumerated in the
Constitution and RA 7941, nor is it associated with or related to
any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong
Bayani stands for the proposition that only those sectors
specifically enumerated in the law or related to said sectors (labor,
peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers,
and professionals) may be registered under the party-list system.
As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections,20 "the enumeration of marginalized and
under-represented sectors is not exclusive". The crucial element is
not whether a sector is specifically enumerated, but whether a
particular organization complies with the requirements of the
Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful
statements in its petition when it alleged that it had nationwide
existence through its members and affiliate organizations. The
COMELEC claims that upon verification by its field personnel, it
was shown that "save for a few isolated places in the country,
petitioner does not exist in almost all provinces in the country."21
This argument that "petitioner made untruthful statements in its
petition when it alleged its national existence" is a new one;
previously, the COMELEC claimed that petitioner was "not being
truthful when it said that it or any of its nominees/party-list
representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections." Nowhere was this
ground for denial of petitioner’s accreditation mentioned or even
alluded to in the Assailed Resolutions. This, in itself, is quite
curious, considering that the reports of petitioner’s alleged non-
existence were already available to the COMELEC prior to the
issuance of the First Assailed Resolution. At best, this is irregular
procedure; at worst, a belated afterthought, a change in
respondent’s theory, and a serious violation of petitioner’s right to
procedural due process.
Nonetheless, we find that there has been no misrepresentation. A
cursory perusal of Ang Ladlad’s initial petition shows that it never
claimed to exist in each province of the Philippines. Rather,
petitioner alleged that the LGBT community in the Philippines was
estimated to constitute at least 670,000 persons; that it had 16,100
affiliates and members around the country, and 4,044 members in
its electronic discussion group.22 Ang Ladlad also represented
itself to be "a national LGBT umbrella organization with affiliates
around the Philippines composed of the following LGBT networks:"
§ Abra Gay Association
§ Aklan Butterfly Brigade (ABB) – Aklan
§ Albay Gay Association
§ Arts Center of Cabanatuan City – Nueva Ecija
§ Boys Legion – Metro Manila
§ Cagayan de Oro People Like Us (CDO PLUS)
§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
§ Cebu Pride – Cebu City
§ Circle of Friends
§ Dipolog Gay Association – Zamboanga del Norte
§ Gay, Bisexual, & Transgender Youth Association
(GABAY)
§ Gay and Lesbian Activists Network for Gender Equality
(GALANG) – Metro Manila
§ Gay Men’s Support Group (GMSG) – Metro Manila
§ Gay United for Peace and Solidarity (GUPS) – Lanao del
Norte
§ Iloilo City Gay Association – Iloilo City
§ Kabulig Writer’s Group – Camarines Sur
§ Lesbian Advocates Philippines, Inc. (LEAP)
§ LUMINA – Baguio City
§ Marikina Gay Association – Metro Manila
§ Metropolitan Community Church (MCC) – Metro Manila
§ Naga City Gay Association – Naga City
§ ONE BACARDI
§ Order of St. Aelred (OSAe) – Metro Manila
§ PUP LAKAN
§ RADAR PRIDEWEAR
§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila
§ San Jose del Monte Gay Association – Bulacan
§ Sining Kayumanggi Royal Family – Rizal
§ Society of Transexual Women of the Philippines
(STRAP) – Metro Manila
§ Soul Jive – Antipolo, Rizal
§ The Link – Davao City
§ Tayabas Gay Association – Quezon
§ Women’s Bisexual Network – Metro Manila
§ Zamboanga Gay Association – Zamboanga City23
Since the COMELEC only searched for the names ANG
LADLAD LGBT or LADLAD LGBT, it is no surprise that they found
that petitioner had no presence in any of these regions. In fact, if
COMELEC’s findings are to be believed, petitioner does not even
exist in Quezon City, which is registered as Ang Ladlad’s principal
place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently
demonstrated its compliance with the legal requirements for
accreditation. Indeed, aside from COMELEC’s moral objection and
the belated allegation of non-existence, nowhere in the records
has the respondent ever found/ruled that Ang Ladlad is not
qualified to register as a party-list organization under any of the
requisites under RA 7941 or the guidelines in Ang Bagong Bayani.
The difference, COMELEC claims, lies in Ang Ladlad’s morality, or
lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition
for Registration
Our Constitution provides in Article III, Section 5 that "[n]o law
shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof." At bottom, what our non-
establishment clause calls for is "government neutrality in religious
matters."24 Clearly, "governmental reliance on religious justification
is inconsistent with this policy of neutrality."25 We thus find that it
was grave violation of the non-establishment clause for the
COMELEC to utilize the Bible and the Koran to justify the
exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the
Assailed Resolutions should depend, instead, on whether the
COMELEC is able to advance some justification for its rulings
beyond mere conformity to religious doctrine. Otherwise stated,
government must act for secular purposes and in ways that have
primarily secular effects. As we held in Estrada v. Escritor:26
x x x The morality referred to in the law is public and necessarily
secular, not religious as the dissent of Mr. Justice Carpio holds.
"Religious teachings as expressed in public debate may influence
the civil public order but public moral disputes may be resolved
only on grounds articulable in secular terms." Otherwise, if
government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would
require conformity to what some might regard as religious
programs or agenda. The non-believers would therefore be
compelled to conform to a standard of conduct buttressed by a
religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon
religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious
views that would not support the policy. As a result, government
will not provide full religious freedom for all its citizens, or even
make it appear that those whose beliefs are disapproved are
second-class citizens. 1avvphi1
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must
have a secular purpose. That is, the government proscribes this
conduct because it is "detrimental (or dangerous) to those
conditions upon which depend the existence and progress of
human society" and not because the conduct is proscribed by the
beliefs of one religion or the other. Although admittedly, moral
judgments based on religion might have a compelling influence on
those engaged in public deliberations over what actions would be
considered a moral disapprobation punishable by law. After all,
they might also be adherents of a religion and thus have religious
opinions and moral codes with a compelling influence on them; the
human mind endeavors to regulate the temporal and spiritual
institutions of society in a uniform manner, harmonizing earth with
heaven. Succinctly put, a law could be religious or Kantian or
Aquinian or utilitarian in its deepest roots, but it must have an
articulable and discernible secular purpose and justification to
pass scrutiny of the religion clauses. x x x Recognizing the
religious nature of the Filipinos and the elevating influence of
religion in society, however, the Philippine constitution's religion
clauses prescribe not a strict but a benevolent neutrality.
Benevolent neutrality recognizes that government must pursue its
secular goals and interests but at the same time strive to uphold
religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by
laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not
offend compelling state interests.27
Public Morals as a Ground to Deny Ang Ladlad’s Petition for
Registration
Respondent suggests that although the moral condemnation of
homosexuality and homosexual conduct may be religion-based, it
has long been transplanted into generally accepted public morals.
The COMELEC argues:
Petitioner’s accreditation was denied not necessarily because their
group consists of LGBTs but because of the danger it poses to the
people especially the youth. Once it is recognized by the
government, a sector which believes that there is nothing wrong in
having sexual relations with individuals of the same gender is a
bad example. It will bring down the standard of morals we cherish
in our civilized society. Any society without a set of moral precepts
is in danger of losing its own existence.28
We are not blind to the fact that, through the years, homosexual
conduct, and perhaps homosexuals themselves, have borne the
brunt of societal disapproval. It is not difficult to imagine the
reasons behind this censure – religious beliefs, convictions about
the preservation of marriage, family, and procreation, even dislike
or distrust of homosexuals themselves and their perceived
lifestyle. Nonetheless, we recall that the Philippines has not seen
fit to criminalize homosexual conduct. Evidently, therefore, these
"generally accepted public morals" have not been convincingly
transplanted into the realm of law.29
The Assailed Resolutions have not identified any specific overt
immoral act performed by Ang Ladlad. Even the OSG agrees that
"there should have been a finding by the COMELEC that the
group’s members have committed or are committing immoral
acts."30 The OSG argues:
x x x A person may be sexually attracted to a person of the same
gender, of a different gender, or more than one gender, but mere
attraction does not translate to immoral acts. There is a great
divide between thought and action. Reduction ad absurdum. If
immoral thoughts could be penalized, COMELEC would have its
hands full of disqualification cases against both the "straights" and
the gays." Certainly this is not the intendment of the law.31
Respondent has failed to explain what societal ills are sought to be
prevented, or why special protection is required for the youth.
Neither has the COMELEC condescended to justify its position
that petitioner’s admission into the party-list system would be so
harmful as to irreparably damage the moral fabric of society. We,
of course, do not suggest that the state is wholly without authority
to regulate matters concerning morality, sexuality, and sexual
relations, and we recognize that the government will and should
continue to restrict behavior considered detrimental to society.
Nonetheless, we cannot countenance advocates who,
undoubtedly with the loftiest of intentions, situate morality on one
end of an argument or another, without bothering to go through the
rigors of legal reasoning and explanation. In this, the notion of
morality is robbed of all value. Clearly then, the bare invocation of
morality will not remove an issue from our scrutiny.
We also find the COMELEC’s reference to purported violations of
our penal and civil laws flimsy, at best; disingenuous, at worst.
Article 694 of the Civil Code defines a nuisance as "any act,
omission, establishment, condition of property, or anything else
which shocks, defies, or disregards decency or morality," the
remedies for which are a prosecution under the Revised Penal
Code or any local ordinance, a civil action, or abatement without
judicial proceedings.32 A violation of Article 201 of the Revised
Penal Code, on the other hand, requires proof beyond reasonable
doubt to support a criminal conviction. It hardly needs to be
emphasized that mere allegation of violation of laws is not proof,
and a mere blanket invocation of public morals cannot replace the
institution of civil or criminal proceedings and a judicial
determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a
sufficient governmental interest to justify exclusion of homosexuals
from participation in the party-list system. The denial of Ang
Ladlad’s registration on purely moral grounds amounts more to a
statement of dislike and disapproval of homosexuals, rather than a
tool to further any substantial public interest. Respondent’s blanket
justifications give rise to the inevitable conclusion that the
COMELEC targets homosexuals themselves as a class, not
because of any particular morally reprehensible act. It is this
selective targeting that implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution,
which provides "nor shall any person be denied equal protection of
the laws," courts have never interpreted the provision as an
absolute prohibition on classification. "Equality," said Aristotle,
"consists in the same treatment of similar persons."33 The equal
protection clause guarantees that no person or class of persons
shall be deprived of the same protection of laws which is enjoyed
by other persons or other classes in the same place and in like
circumstances.34
Recent jurisprudence has affirmed that if a law neither burdens a
fundamental right nor targets a suspect class, we will uphold the
classification as long as it bears a rational relationship to some
legitimate government end.35 In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas,36 we declared that
"[i]n our jurisdiction, the standard of analysis of equal protection
challenges x x x have followed the ‘rational basis’ test, coupled
with a deferential attitude to legislative classifications and a
reluctance to invalidate a law unless there is a showing of a clear
and unequivocal breach of the Constitution."37
The COMELEC posits that the majority of the Philippine population
considers homosexual conduct as immoral and unacceptable, and
this constitutes sufficient reason to disqualify the petitioner.
Unfortunately for the respondent, the Philippine electorate has
expressed no such belief. No law exists to criminalize homosexual
behavior or expressions or parties about homosexual behavior.
Indeed, even if we were to assume that public opinion is as the
COMELEC describes it, the asserted state interest here – that is,
moral disapproval of an unpopular minority – is not a legitimate
state interest that is sufficient to satisfy rational basis review under
the equal protection clause. The COMELEC’s differentiation, and
its unsubstantiated claim that Ang Ladlad cannot contribute to the
formulation of legislation that would benefit the nation, furthers no
legitimate state interest other than disapproval of or dislike for a
disfavored group.
From the standpoint of the political process, the lesbian, gay,
bisexual, and transgender have the same interest in participating
in the party-list system on the same basis as other political parties
similarly situated. State intrusion in this case is equally
burdensome. Hence, laws of general application should apply with
equal force to LGBTs, and they deserve to participate in the party-
list system on the same basis as other marginalized and under-
represented sectors.
It bears stressing that our finding that COMELEC’s act of
differentiating LGBTs from heterosexuals insofar as the party-list
system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under
different circumstances would similarly fail. We disagree with the
OSG’s position that homosexuals are a class in themselves for the
purposes of the equal protection clause.38 We are not prepared to
single out homosexuals as a separate class meriting special or
differentiated treatment. We have not received sufficient evidence
to this effect, and it is simply unnecessary to make such a ruling
today. Petitioner itself has merely demanded that it be recognized
under the same basis as all other groups similarly situated, and
that the COMELEC made "an unwarranted and impermissible
classification not justified by the circumstances of the case."
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its
agenda and attempt to persuade society of the validity of its
position through normal democratic means.39 It is in the public
square that deeply held convictions and differing opinions should
be distilled and deliberated upon. As we held in Estrada v.
Escritor:40
In a democracy, this common agreement on political and moral
ideas is distilled in the public square. Where citizens are free,
every opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people
deliberate the order of their life together. Citizens are the bearers
of opinion, including opinion shaped by, or espousing religious
belief, and these citizens have equal access to the public square.
In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be
proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule
is a necessary principle in this democratic governance. Thus,
when public deliberation on moral judgments is finally crystallized
into law, the laws will largely reflect the beliefs and preferences of
the majority, i.e., the mainstream or median groups. Nevertheless,
in the very act of adopting and accepting a constitution and the
limits it specifies – including protection of religious freedom "not
only for a minority, however small – not only for a majority,
however large – but for each of us" – the majority imposes upon
itself a self-denying ordinance. It promises not to do what it
otherwise could do: to ride roughshod over the dissenting
minorities.
Freedom of expression constitutes one of the essential
foundations of a democratic society, and this freedom applies not
only to those that are favorably received but also to those that
offend, shock, or disturb. Any restriction imposed in this sphere
must be proportionate to the legitimate aim pursued. Absent any
compelling state interest, it is not for the COMELEC or this Court
to impose its views on the populace. Otherwise stated, the
COMELEC is certainly not free to interfere with speech for no
better reason than promoting an approved message or
discouraging a disfavored one.
This position gains even more force if one considers that
homosexual conduct is not illegal in this country. It follows that
both expressions concerning one’s homosexuality and the activity
of forming a political association that supports LGBT individuals
are protected as well.
Other jurisdictions have gone so far as to categorically rule that
even overwhelming public perception that homosexual conduct
violates public morality does not justify criminalizing same-sex
conduct.41 European and United Nations judicial decisions have
ruled in favor of gay rights claimants on both privacy and equality
grounds, citing general privacy and equal protection provisions in
foreign and international texts.42 To the extent that there is much to
learn from other jurisdictions that have reflected on the issues we
face here, such jurisprudence is certainly illuminating. These
foreign authorities, while not formally binding on Philippine courts,
may nevertheless have persuasive influence on the Court’s
analysis.
In the area of freedom of expression, for instance, United States
courts have ruled that existing free speech doctrines protect gay
and lesbian rights to expressive conduct. In order to justify the
prohibition of a particular expression of opinion, public institutions
must show that their actions were caused by "something more
than a mere desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint."43
With respect to freedom of association for the advancement of
ideas and beliefs, in Europe, with its vibrant human rights tradition,
the European Court of Human Rights (ECHR) has repeatedly
stated that a political party may campaign for a change in the law
or the constitutional structures of a state if it uses legal and
democratic means and the changes it proposes are consistent
with democratic principles. The ECHR has emphasized that
political ideas that challenge the existing order and whose
realization is advocated by peaceful means must be afforded a
proper opportunity of expression through the exercise of the right
of association, even if such ideas may seem shocking or
unacceptable to the authorities or the majority of the
population.44 A political group should not be hindered solely
because it seeks to publicly debate controversial political issues in
order to find solutions capable of satisfying everyone
concerned.45 Only if a political party incites violence or puts
forward policies that are incompatible with democracy does it fall
outside the protection of the freedom of association guarantee.46
We do not doubt that a number of our citizens may believe that
homosexual conduct is distasteful, offensive, or even defiant. They
are entitled to hold and express that view. On the other hand,
LGBTs and their supporters, in all likelihood, believe with equal
fervor that relationships between individuals of the same sex are
morally equivalent to heterosexual relationships. They, too, are
entitled to hold and express that view. However, as far as this
Court is concerned, our democracy precludes using the religious
or moral views of one part of the community to exclude from
consideration the values of other members of the community.
Of course, none of this suggests the impending arrival of a golden
age for gay rights litigants. It well may be that this Decision will
only serve to highlight the discrepancy between the rigid
constitutional analysis of this Court and the more complex moral
sentiments of Filipinos. We do not suggest that public opinion,
even at its most liberal, reflect a clear-cut strong consensus
favorable to gay rights claims and we neither attempt nor expect to
affect individual perceptions of homosexuality through this
Decision.
The OSG argues that since there has been neither prior restraint
nor subsequent punishment imposed on Ang Ladlad, and its
members have not been deprived of their right to voluntarily
associate, then there has been no restriction on their freedom of
expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or any
assembly denied. [COMELEC] simply exercised its authority to
review and verify the qualifications of petitioner as a sectoral party
applying to participate in the party-list system. This lawful exercise
of duty cannot be said to be a transgression of Section 4, Article III
of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the
members of the petitioner to freely take part in the conduct of
elections. Their right to vote will not be hampered by said denial.
In fact, the right to vote is a constitutionally-guaranteed right which
cannot be limited.
As to its right to be elected in a genuine periodic election,
petitioner contends that the denial of Ang Ladlad’s petition has the
clear and immediate effect of limiting, if not outrightly nullifying the
capacity of its members to fully and equally participate in public life
through engagement in the party list elections.
This argument is puerile. The holding of a public office is not a
right but a privilege subject to limitations imposed by law. x x x47
The OSG fails to recall that petitioner has, in fact, established its
qualifications to participate in the party-list system, and – as
advanced by the OSG itself – the moral objection offered by the
COMELEC was not a limitation imposed by law. To the extent,
therefore, that the petitioner has been precluded, because of
COMELEC’s action, from publicly expressing its views as a
political party and participating on an equal basis in the political
process with other equally-qualified party-list candidates, we find
that there has, indeed, been a transgression of petitioner’s
fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in
scope and promise, international human rights law, in particular,
has grown dynamically in its attempt to bring about a more just
and humane world order. For individuals and groups struggling
with inadequate structural and governmental support, international
human rights norms are particularly significant, and should be
effectively enforced in domestic legal systems so that such norms
may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international
obligations to protect and promote human rights. In particular, we
explicitly recognize the principle of non-discrimination as it relates
to the right to electoral participation, enunciated in the UDHR and
the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the
ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other
status.
In this context, the principle of non-discrimination requires that
laws of general application relating to elections be applied equally
to all persons, regardless of sexual orientation. Although sexual
orientation is not specifically enumerated as a status or ratio for
discrimination in Article 26 of the ICCPR, the ICCPR Human
Rights Committee has opined that the reference to "sex" in Article
26 should be construed to include "sexual
orientation."48 Additionally, a variety of United Nations bodies have
declared discrimination on the basis of sexual orientation to be
prohibited under various international agreements.49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any
of the distinctions mentioned in article 2 and without unreasonable
restrictions:
(a) To take part in the conduct of public affairs, directly or
through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections
which shall be by universal and equal suffrage and shall be
held by secret ballot, guaranteeing the free expression of
the will of the electors;
(c) To have access, on general terms of equality, to public
service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of
the right to electoral participation is elaborated by the Human
Rights Committee in its General Comment No. 25 (Participation in
Public Affairs and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of
every citizen to take part in the conduct of public affairs, the right
to vote and to be elected and the right to have access to public
service. Whatever form of constitution or government is in force,
the Covenant requires States to adopt such legislative and other
measures as may be necessary to ensure that citizens have an
effective opportunity to enjoy the rights it protects. Article 25 lies at
the core of democratic government based on the consent of the
people and in conformity with the principles of the Covenant.
xxxx
15. The effective implementation of the right and the opportunity to
stand for elective office ensures that persons entitled to vote have
a free choice of candidates. Any restrictions on the right to stand
for election, such as minimum age, must be justifiable on objective
and reasonable criteria. Persons who are otherwise eligible to
stand for election should not be excluded by unreasonable or
discriminatory requirements such as education, residence or
descent, or by reason of political affiliation. No person should
suffer discrimination or disadvantage of any kind because of that
person's candidacy. States parties should indicate and explain the
legislative provisions which exclude any group or category of
persons from elective office.50
We stress, however, that although this Court stands willing to
assume the responsibility of giving effect to the Philippines’
international law obligations, the blanket invocation of international
law is not the panacea for all social ills. We refer now to the
petitioner’s invocation of the Yogyakarta Principles (the Application
of International Human Rights Law In Relation to Sexual
Orientation and Gender Identity),51 which petitioner declares to
reflect binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta
Principles contain norms that are obligatory on the Philippines.
There are declarations and obligations outlined in said Principles
which are not reflective of the current state of international law,
and do not find basis in any of the sources of international law
enumerated under Article 38(1) of the Statute of the International
Court of Justice.52 Petitioner has not undertaken any objective and
rigorous analysis of these alleged principles of international law to
ascertain their true status.
We also hasten to add that not everything that society – or a
certain segment of society – wants or demands is automatically a
human right. This is not an arbitrary human intervention that may
be added to or subtracted from at will. It is unfortunate that much
of what passes for human rights today is a much broader context
of needs that identifies many social desires as rights in order to
further claims that international law obliges states to sanction
these innovations. This has the effect of diluting real human rights,
and is a result of the notion that if "wants" are couched in "rights"
language, then they are no longer controversial. 1avvphi1
Using even the most liberal of lenses, these Yogyakarta Principles,
consisting of a declaration formulated by various international law
professors, are – at best – de lege ferenda – and do not constitute
binding obligations on the Philippines. Indeed, so much of
contemporary international law is characterized by the "soft law"
nomenclature, i.e., international law is full of principles that
promote international cooperation, harmony, and respect for
human rights, most of which amount to no more than well-meaning
desires, without the support of either State practice or opinio
juris.53
As a final note, we cannot help but observe that the social issues
presented by this case are emotionally charged, societal attitudes
are in flux, even the psychiatric and religious communities are
divided in opinion. This Court’s role is not to impose its own view
of acceptable behavior. Rather, it is to apply the Constitution and
laws as best as it can, uninfluenced by public opinion, and
confident in the knowledge that our democracy is resilient enough
to withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions
of the Commission on Elections dated November 11, 2009 and
December 16, 2009 in SPP No. 09-228 (PL) are hereby SET
ASIDE. The Commission on Elections is directed
to GRANT petitioner’s application for party-list accreditation.
SO ORDERED.
G.R. No. 127410 January 20, 1999
CONRADO L. TIU, JUAN T. MONTELIBANO JR. and ISAGANI
M. JUNGCO, petitioners,
vs.
COURT OF APPEALS, HON. TEOFISTO T. GUINGONA JR.,
BASES CONVERSION AND DEVELOPMENT AUTHORITY,
SUBIC BAY METROPOLITAN AUTHORITY, BUREAU OF
INTERNAL REVENUE, CITY TREASURER OF OLONGAPO and
MUNICIPAL TREASURER OF SUBIC, ZAMBALES, respondents.
PANGANIBAN, J.:
The constituttional rights to equal protection of the law is not
violated by an executive order, issued pursuant to law, granting
tax and duty incentives only to the bussiness and residents within
the "secured area" of the Subic Special Econimic Zone and
denying them to those who live within the Zone but outside such
"fenced-in" territory. The Constitution does not require absolute
equality among residents. It is enough that all persons under like
circumstances or conditions are given the same privileges and
required to follow the same obligations. In short, a classification
based on valid and reasonable standards does not violate the
equal protection clause.
The Case
Before us is a petition for review under Rule 45 of the Rules of
Court, seeking the reversal of the Court of Appeals'
Decision1 promulgated on August 29, 1996, and Resolution2 dated
November 13, 1996, in CA-GR SP No. 37788. 3 The challenged
Decision upheld the constitutionality and validity of Executive
Order No. 97-A (EO 97-A), according to which the grant and
enjoyment of the tax and duty incentives authorized under
Republic Act No. 7227 (RA 7227) were limited to the business
enterprises and residents within the fenced-in area of the Subic
Special Economic Zone (SSEZ).
The assailed Resolution denied the petitioners' motion for
reconsideration.
On March 13, 1992, Congress, with the approval of the President,
passed into law RA 7227 entitled "An Act Accelerating the
Conversion of Military Reservations Into Other Productive Uses,
Creating the Bases Conversion and Development Authority for this
Purpose, Providing Funds Therefor and for Other Purposes."
Section 12 thereof created the Subic Special Economic Zone and
granted there to special privileges, as follows:
Sec. 12. Subic Special Economic Zone. — Subject
to the concurrence by resolution of
the sangguniang panlungsod of the City of
Olongapo and the sangguniang bayan of the
Municipalities of Subic, Morong and Hermosa,
there is hereby created a Special Economic and
Free-port Zone consisting of the City of Olongapo
and the Municipality of Subic, Province of
Zambales, the lands occupied by the Subic Naval
Base and its contiguous extensions as embraced,
covered, and defined by the 1947 Military Bases
Agreement between the Philippines and the United
States of America as amended, and within the
territorial jurisdiction of the Municipalities of
Morong and Hermosa, Province of Bataan,
hereinafter referred to as the Subic Special
Economic Zone whose metes and bounds shall be
delineated in a proclamation to be issued by the
President of the Philippines. Within thirty (30) days
after the approval of this Act, each local
government unit shall submit its resolution of
concurrence to join the Subic Special Economic
Zone to the Office of the President. Thereafter, the
President of the Philippines shall issue a
proclamation defining the metes and bounds of the
zone as provided herein.
The abovementioned zone shall be subject to the
following policies:
(a) Within the framework and subject to the
mandate and limitations of the Constitution and the
pertinent provisions of the Local Government
Code, the Subic Special Economic Zone shall be
developed into a self-sustaining, industrial,
commercial, financial and investment center to
generate employment opportunities in and around
the zone and to attract and promote productive
foreign investments;
(b) The Subic Special Economic Zone shall be
operated and managed as a separate customs
territory ensuring free flow or movement of goods
and capital within, into and exported out of the
Subic Special Economic Zone, as well as provide
incentives such as tax and duty-free importations
of raw materials, capital and equipment. However,
exportation or removal of goods from the territory
of the Subic Special Economic Zone to the other
parts of the Philippine territory shall be subject to
customs duties and taxes under the Customs and
Tariff Code and other relevant tax laws of the
Philippines;
(c) The provision of existing laws, rules and
regulations to the contrary notwithstanding, no
taxes, local and national, shall be imposed within
the Subic Special Economic Zone. In lieu of paying
taxes, three percent (3%) of the gross income
earned by all businesses and enterprises within the
Subic Special Economic Zone shall be remitted to
the National Government, one percent (1%) each
to the local government units affected by the
declaration of the zone in proportion to their
population area, and other factors. In addition,
there is hereby established a development fund of
one percent (1%) of the gross income earned by all
businesses and enterprises within the Subic
Special Economic Zone to be utilized for the
development of municipalities outside the City of
Olongapo and the Municipality of Subic, and other
municipalities contiguous to the base areas.
In case of conflict between national and local laws
with respect to tax exemption privileges in the
Subic Special Economic Zone, the same shall be
resolved in favor of the latter;
(d) No exchange control policy shall be applied and
free markets for foreign exchange, gold, securities
and future shall be allowed and maintained in the
Subic Special Economic Zone;
(e) The Central Bank, through the Monetary Board,
shall supervise and regulate the operations of
banks and other financial institutions within the
Subic Special Economic Zone;
(f) Banking and finance shall be liberalized with the
establishment of foreign currency depository units
of local commercial banks and offshore banking
units of foreign banks with minimum Central Bank
regulation;
(g) Any investor within the Subic Special Economic
Zone whose continuing investment shall not be
less than two hundred fifty thousand dollars
($250,000), his/her spouse and dependent children
under twenty-one (21) years of age, shall be
granted permanent resident status within the Subic
Special Economic Zone. They shall have the
freedom of ingress and egress to and from the
Subic Special Economic Zone without any need of
special authorization form the Bureau of
Immigration and Deportation. The Subic Bay
Metropolitan Authority referred to in Section 13 of
this Act may also issue working visas renewable
every two (2) years to foreign executives and other
aliens possessing highly technical skills which no
Filipino within the Subic Special Economic Zone
possesses, as certified by the Department of Labor
and Employment. The names of aliens granted
permanent residence status and working visas by
the Subic Bay Metropolitan Authority shall be
reported to the Bureau of Immigration and
Deportation within thirty (30) days after issuance
thereof;
(h) The defense of the zone and the security of its
perimeters shall be the responsibility of the
National Government in coordination with the
Subic Bay Metropolitan Authority. The Subic Bay
Metropolitan Authority shall provide and establish
its own security and fire-fighting forces; and
(i) Except as herein provided, the local government
units comprising the Subic Special Economic Zone
shall retain their basic autonomy and identity. The
cities shall be governed by their respective
charters and the municipalities shall operate and
function in accordance with Republic Act No. 7160,
otherwise known as the Local Government Code of
1991.
On June 10, 1993, then President Fidel V. Ramos issued
Executive Order No. 97 (EO 97), clarifying the application of the
tax and duty incentives thus:
Sec. 1. On Import Taxes and Duties. — Tax and
duty-free importations shall apply only to raw
materials, capital goods and equipment brought in
by business enterprises into the SSEZ. Except for
these items, importations of other goods into the
SSEZ, whether by business enterprises or resident
individuals, are subject to taxes and duties under
relevant Philippine laws.
The exportation or removal of tax and duty-free
goods from the territory of the SSEZ to other parts
 of the Philippine territory shall be subject to duties
and taxes under relevant Philippine laws.
Sec. 2. On All Other Taxes. — In lieu of all local
and national taxes (except import taxes and
duties), all business enterprises in the SSEZ shall
be required to pay the tax specified in Section
12(c) of R.A. No. 7227.
Nine days after, on June 19, 1993, the President issued Executive
Order No. 97-A (EO 97-A), specifying the area within which the
tax-and-duty-free privilege was operative, viz.:
Sec. 1.1. The Secured Area consisting of the
presently fenced-in former Subic Naval Base shall
be the only completely tax and duty-free area in
the SSEFPZ [Subic Special Economic and Free
Port Zone]. Business enterprises and individuals
(Filipinos and foreigners) residing within the
Secured Area are free to import raw materials,
capital goods, equipment, and consumer items tax
and duty-free. Consumption items, however, must
be consumed within the Secured Area. Removal of
raw materials, capital goods, equipment and
consumer items out of the Secured Area for sale to
non-SSEFPZ registered enterprises shall be
subject to the usual taxes and duties, except as
may be provided herein.
On October 26, 1994, the petitioners challenged before this Court
the constitutionality of EO 97-A for allegedly being violative of their
right to equal protection of the laws. In a Resolution dated June
27, 1995, this Court referred the matter to the Court of Appeals,
pursuant to Revised Administrative Circular No. 1-95.
Incidentally, on February 1, 1995, Proclamation No. 532 was
issued by President Ramos. It delineated the exact metes and
bounds of the Subic Special Economic and Free Port Zone,
pursuant to Section 12 of RA 7227.
Ruling of the Court of Appeals
Respondent Court held that "there is no substantial difference
between the provisions of EO 97-A and Section 12 of RA 7227. In
both, the 'Secured Area' is precise and well-defined as '. . . the
lands occupied by the Subic Naval Base and its contiguous
extensions as embraced, covered and defined by the 1947 Military
Bases Agreement between the Philippines and the United States
of America, as amended . . .'" The appellate court concluded that
such being the case, petitioners could not claim that EO 97-A is
unconstitutional, while at the same time maintaining the validity of
RA 7227.
The court a quo also explained that the intention of Congress was
to confine the coverage of the SSEZ to the "secured area" and not
to include the "entire Olongapo City and other areas mentioned in
Section 12 of the law." It relied on the following deliberarions in the
Senate:
Senator Paterno. Thank you, Mr. President. My
first question is the extent of the economic zone.
Since this will be a free port, in effect, I believe that
it is important to delineate or make sure that the
delineation will be quite precise[. M]y question is: Is
it the intention that the entire of Olongapo City, the
Municipality of Subic and the Municipality of
Dinalupihan will be covered by the special
economic zone or only portions thereof?
Senator Shahani. Only portions, Mr. President. In
other words, where the actual operations of the
free port will take place.
Senator Paterno. I see. So, we should say,
"COVERING THE DESIGNATED PORTIONS OR
CERTAIN PORTIONS OF OLONGAPO CITY,
SUBIC AND DINALUPIHAN" to make it clear that it
is not supposed to cover the entire area of all of
these territories.
 Senator Shahani. So, the Gentleman is proposing
that the words "CERTAIN AREAS". . .
The President. The Chair would want to invite the
attention of the Sponsor and Senator Paterno to
letter "C," which says: "THE PRESIDENT OF THE
PHILIPPINES IS HEREBY AUTHORIZED TO
PROCLAIM, DELINEATE AND SPECIFY THE
METES AND BOUNDS OF OTHER SPECIAL
ECONOMIC ZONES WHICH MAY BE CREATED
IN THE CLARK MILITARY RESERVATIONS AND
ITS EXTENSIONS."
Probably, this provision can be expanded since,
apparently, the intention is that what is referred to
in Olongapo as Metro Olongapo is not by itself ipso
jure already a special economic zone.
Senator Paterno. That is correct.
The President. Someone, some authority must
declare which portions of the same shall be the
economic zone. Is it the intention of the author that
it is the President of the Philippines who will make
such delineation?
Senator Shahani. Yes Mr. President.
The Court of Appeals further justified the limited application of the
tax incentives as being within the prerogative of the legislature,
pursuant to its "avowed purpose [of serving] some public benefit or
interest." It ruled that "EO 97-A merely implements the legislative
purpose of [RA 7227]."
Disagreeing, petitioners now seek before us a review of the
aforecited Court of Appeals Decision and Resolution.
The Issue
Petitioners submit the following issue for the resolution of the
Court:
[W]hether or not Executive Order No. 97-A violates
the equal protection clause of the Constitution.
Specifically the issue is whether the provisions of
Executive Order No. 97-A confining the application
of R.A. 7227 within the secured area and excluding
the residents of the zone outside of the secured
area is discriminatory or not.4
The Court's Ruling
The petition 5 is bereft of merit.
Main Issue:
The Constitionality of EO 37-A
Citing Section 12 of RA 7227, petitioners contend that the SSEZ
encompasses (1) the City of Olongapo, (2) the Municipality of
Subic in Zambales, and (3) the area formerly occupied by the
Subic Naval Base. However, EO 97-A, according to them,
narrowed down the area within which the special privileges
granted to the entire zone would apply to the present "fenced-in
former Subic Naval Base" only. It has thereby excluded the
residents of the first two components of the zone from enjoying the
benefits granted by the law. It has effectively discriminated against
them without reasonable or valid standards, in contravention of the
equal protection guarantee.
On the other hand, the solicitor general defends, on behalf of
respondents, the validity of EO 97-A, arguing that Section 12 of
RA 7227 clearly vests in the President the authority to delineate
the metes and bounds of the SSEZ. He adds that the issuance
fully complies with the requiretnents of a valid classification.
We rule in favor of the constitutionality and validity of the assailed
EO. Said Order is not violative of the equal protection clause;
neither is it discriminatory. Rather, than we find real and
substantive distinctions between the circumstances obtain;ng
inside and those outside the Subic Naval Base, thereby justifying a
valid and reasonable classification.
The fundamental right of equal protection of the laws is not
absolute, but is subject to reasonable classification. If the
groupings are characterized by substantial distinctions that make
real differences, one class may be treated and regulated
differently from another. 6 The classification must also be germane
to the purpose of the law and must apply to all those belonging to
the same class. Explaining the nature of the equal protection
guarantee, the Court in Ichong v. Hernandez 8 said:
The equal protection of the law clause is against
undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of
inequality. It is not intended to prohibit legislation
which is limited either [by] the object to which it is
directed or by [the] territory within which it is to
operate. It does not demand absolute equality
among residents; it merely requires that all persons
shall be treated alike, under like circumstances and
conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is
not infringed by legislation which applies only to
those persons falling within a specified class, if it
applies alike to all persons within such class, and
reasonable. grounds exist for making a distinction
between those who fall within such class and those
who do not.
Classification, to be valid, must (1) rest on substantial distinctions,
(2) be germane to the purpose of the law, (3) not be limited to
existing conditions only, and (4) apply equally to all members of
the same class. 9
We first determine the purpose of the law. From the very title itself,
it is clear that RA 7227 aims primarily to accelerate the conversion
of military reservations into productive uses. Obviously, the "lands
covered under the 1947 Military Bases Agreement" are its object.
Thus, the law avows this policy:
Sec. 2. Declaration of Policies. — It is hereby
declared the policy of the Government to
accelerate the sound and balanced conversion into
alternative productive uses of the Clark and Subic
military reservations and their extensions (John
Hay Station, Wallace Air Station, O'Donnell
Transmitter Station, San Miguel Naval
Communications Station and Capas Relay
Station), to raise funds by the sale of portions of
Metro Manila military camps, and to apply said
funds as provided herein for the development and
conversion to productive civilian use of the lands
covered under the 1947 Military Bases Agreement
between the Philippines and the United States of
America, as amended.
To undertake the above objectives, the same law created the
Bases Conversion and Development Authority, some of whose
relevant defined purposes are:
(b) To adopt, prepare and implement a
comprehensive and detailed development plan
embodying a list of projects including but not
limited to those provided in the Legislative-
Executive Bases Council (LEBC) framework plan
for the sound and balanced conversion of the Clark
and Subic military reservations and their
extensions consistent with ecological and
environmental standards, into other productive
uses to promote the economic and social
development of Central Luzon in particular and the
country in general;
(c). To encourage the active participation of the
private sector in transforming the Clark and Subic
military reservations and their extensions into other
productive uses;
Further, in creating the SSEZ, the law declared it a policy to
develop the zone into a "self-sustaining, industrial, commercial,
financial and investment center."10
From the above provisions of the law, it can easily be deduced
that the real concern of RA 7227 is to convert the lands formerly
occupied by the US military bases into economic or industrial
areas. In furtherance of such objective, Congress deemed it
necessary to extend economic incentives to attract and encourage
investors, both local and foreign. Among such enticements
are:11 (1) a separate customs territory within the zone, (2) tax-and-
duty-free importation's, (3) restructured income tax rates on
business enterprises within the zone, (4) no foreign exchange
control, (5) liberalized regulations on banking and finance, and (6)
the grant of resident status to certain investors and of working
visas to certain foreign executives and workers .
We believe it was reasonable for the President to have delimited
the application of some incentives to the confines of the former
Subic military base. It is this specific area which the government
intends to transform and develop from its status quo ante as an
abandoned naval facility into a self-sustaining industrial and
commercial zone, particularly for big foreign and local investors to
use as operational bases for their businesses and industries. Why
the seeming bias for the big investors? Undeniably, they are the
ones who can pour huge investments to spur economic growth in
the country and to generate employment opportunities for the
Filipinos, the ultimate goals of the government for such
conversion. The classification is, therefore, germane to the
purposes of the law. And as the legal maxim goes, "The intent of a
statute is the law."12
Certainly, there are substantial differences between the big
investors who are being lured to establish and operate their
industries in the so-called "secured area" and the present business
operators outside the area. On the one hand, we are talking of
billion-peso investments and thousands of new, jobs. On the other
hand, definitely none of such magnitude. In the first, the economic
impact will be national; in the second, only local. Even more
important, at this time the business activities outside the "secured
area" are not likely to have any impact in achieving the purpose of
the law, which is to turn the former military base to productive use
for the benefit of the Philippine economy. There is, then, hardly
any reasonable basis to extend to them the benefits and
incentives accorded in RA 7227. Additionally, as the Court of
Appeals pointed out, it will be easier to manage and monitor the
activities within the "secured area," which is already fenced off, to
prevent "fraudulent importation of merchandise" or smuggling.
It is well-settled that the equal-protection guarantee does not
require territorial uniformity of laws.13 As long as there are actual
and material differences between territories, there is no violation of
the constitutional clause. And of course, anyone, including the
petitioners, possessing the requisite investment capital can always
avail of the same benefits by channeling his or her resources or
business operations into the fenced-off free port zone.
We believe that the classification set forth by the executive
issuance does not apply merely to existing conditions. As laid
down in RA 7227, the objective is to establish a "self-sustaining,
industrial, commercial, financial and investment center" in the
area. There will, therefore, be a long-term difference between such
investment center and the areas outside it.
Lastly, the classification applies equally to all the resident
individuals and businesses within the "secured area." The
residents, being in like circumstances or contributing directly to the
achievement of the end purpose of the law, are not categorized
further. Instead, they are all similarly treated, both in privileges
granted and in obligations required.
All told, the Court holds that no undue favor or privilege was
extended. The classification occasioned by EO 97-A was not
unreasonable, capricious or unfounded. To repeat, it was based,
rather, on fair and substantive considerations that were germane
to the legislative purpose.
WHEREFORE, the petition is DENIED for lack of merit. The
assailed Decision and Resolution are hereby AFFIRMED. Costs
against petitioners.
1âwphi 1.nêt
SO ORDERED.
G.R. No. 192935 December 7, 2010
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 193036
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR.,
REP. SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA,
SR., Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and
DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY
FLORENCIO B. ABAD, Respondents.
DECISION
MENDOZA, J.:
When the judiciary mediates to allocate constitutional boundaries,
it does not assert any superiority over the other departments; it
does not in reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and
guarantees to them.
--- Justice Jose P. Laurel1
The role of the Constitution cannot be overlooked. It is through the
Constitution that the fundamental powers of government are
established, limited and defined, and by which these powers are
distributed among the several departments.2 The Constitution is
the basic and paramount law to which all other laws must conform
and to which all persons, including the highest officials of the land,
must defer.3 Constitutional doctrines must remain steadfast no
matter what may be the tides of time. It cannot be simply made to
sway and accommodate the call of situations and much more tailor
itself to the whims and caprices of government and the people
who run it.4
For consideration before the Court are two consolidated
cases5 both of which essentially assail the validity and
constitutionality of Executive Order No. 1, dated July 30, 2010,
entitled "Creating the Philippine Truth Commission of 2010."
The first case is G.R. No. 192935, a special civil action for
prohibition instituted by petitioner Louis Biraogo (Biraogo) in his
capacity as a citizen and taxpayer. Biraogo assails Executive
Order No. 1 for being violative of the legislative power of Congress
under Section 1, Article VI of the Constitution6 as it usurps the
constitutional authority of the legislature to create a public office
and to appropriate funds therefor.7
The second case, G.R. No. 193036, is a special civil action for
certiorari and prohibition filed by petitioners Edcel C. Lagman,
Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B.
Fua, Sr. (petitioners-legislators) as incumbent members of the
House of Representatives.
The genesis of the foregoing cases can be traced to the events
prior to the historic May 2010 elections, when then Senator
Benigno Simeon Aquino III declared his staunch condemnation of
graft and corruption with his slogan, "Kung walang corrupt, walang
mahirap." The Filipino people, convinced of his sincerity and of his
ability to carry out this noble objective, catapulted the good
senator to the presidency.
To transform his campaign slogan into reality, President Aquino
found a need for a special body to investigate reported cases of
graft and corruption allegedly committed during the previous
administration.
Thus, at the dawn of his administration, the President on July 30,
2010, signed Executive Order No. 1 establishing
the Philippine Truth Commission of 2010 (Truth Commission).
Pertinent provisions of said executive order read:
EXECUTIVE ORDER NO. 1 WHEREAS, Book III, Chapter 10, Section 31 of Executive Order
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the
Philippines solemnly enshrines the principle that a public office is a
public trust and mandates that public officers and employees, who
are servants of the people, must at all times be accountable to the
latter, serve them with utmost responsibility, integrity, loyalty and
efficiency, act with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of
defiance of this principle and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously
affects the political, economic, and social life of a nation; in a very
special way it inflicts untold misfortune and misery on the poor, the
marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very
alarming levels, and undermined the people’s trust and confidence
in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the
truth regarding certain reports of large scale graft and corruption in
the government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to
deter others from committing the evil, restore the people’s faith
and confidence in the Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the
Presidency in the last elections "kung walang corrupt, walang
mahirap" expresses a solemn pledge that if elected, he would end
corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely
to investigating and finding out the truth concerning the reported
cases of graft and corruption during the previous administration,
and which will recommend the prosecution of the offenders and
secure justice for all;
No. 292, otherwise known as the Revised Administrative Code of
the Philippines, gives the President the continuing authority to
reorganize the Office of the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III,
President of the Republic of the Philippines, by virtue of the
powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby
created the PHILIPPINE TRUTH COMMISSION, hereinafter
referred to as the "COMMISSION," which shall primarily seek and
find the truth on, and toward this end, investigate reports of graft
and corruption of such scale and magnitude that shock and offend
the moral and ethical sensibilities of the people, committed by
public officers and employees, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration; and thereafter recommend the appropriate action
or measure to be taken thereon to ensure that the full measure of
justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4)
members who will act as an independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which
shall have all the powers of an investigative body under Section
37, Chapter 9, Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding investigation of
reported cases of graft and corruption referred to in Section 1,
involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during
the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the
Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft
and corruption which it will investigate;
b) Collect, receive, review and evaluate evidence related
to or regarding the cases of large scale corruption which it
has chosen to investigate, and to this end require any
agency, official or employee of the Executive Branch,
including government-owned or controlled corporations, to
produce documents, books, records and other papers;
c) Upon proper request or representation, obtain
information and documents from the Senate and the
House of Representatives records of investigations
conducted by committees thereof relating to matters or
subjects being investigated by the Commission;
d) Upon proper request and representation, obtain
information from the courts, including the Sandiganbayan
and the Office of the Court Administrator, information or
documents in respect to corruption cases filed with the
Sandiganbayan or the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies
and for that purpose, administer oaths or affirmations as
the case may be;
f) Recommend, in cases where there is a need to utilize
any person as a state witness to ensure that the ends of
justice be fully served, that such person who qualifies as a
state witness under the Revised Rules of Court of the
Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution,
to the appropriate prosecutorial authorities, by means of a
special or interim report and recommendation, all evidence
on corruption of public officers and employees and their
private sector co-principals, accomplices or accessories, if
any, when in the course of its investigation the
Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption under
pertinent applicable laws;
h) Call upon any government investigative or prosecutorial
agency such as the Department of Justice or any of the
agencies under it, and the Presidential Anti-Graft
Commission, for such assistance and cooperation as it
may require in the discharge of its functions and duties;
i) Engage or contract the services of resource persons,
professionals and other personnel determined by it as
necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of
procedure it deems necessary to effectively and efficiently
carry out the objectives of this Executive Order and to
ensure the orderly conduct of its investigations,
proceedings and hearings, including the presentation of
evidence;
k) Exercise such other acts incident to or are appropriate
and necessary in connection with the objectives and
purposes of this Order.
SECTION 3. Staffing Requirements. – x x x.
SECTION 4. Detail of Employees. – x x x.
SECTION 5. Engagement of Experts. – x x x
SECTION 6. Conduct of Proceedings. – x x x.
SECTION 7. Right to Counsel of Witnesses/Resource
Persons. – x x x.
SECTION 8. Protection of Witnesses/Resource Persons. – x x
x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give
Testimony. – Any government official or personnel who, without
lawful excuse, fails to appear upon subpoena issued by the
Commission or who, appearing before the Commission refuses to
take oath or affirmation, give testimony or produce documents for
inspection, when required, shall be subject to administrative
disciplinary action. Any private person who does the same may be
dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. –
x x x.
SECTION 11. Budget for the Commission. – The Office of the
President shall provide the necessary funds for the Commission to
ensure that it can exercise its powers, execute its functions, and
perform its duties and responsibilities as effectively, efficiently, and
expeditiously as possible.
SECTION 12. Office. – x x x.
SECTION 13. Furniture/Equipment. – x x x.
SECTION 14. Term of the Commission. – The Commission shall
accomplish its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. – x x x.
SECTION 16. Transfer of Records and Facilities of the
Commission. – x x x.
SECTION 17. Special Provision Concerning Mandate. If and
when in the judgment of the President there is a need to expand
the mandate of the Commission as defined in Section 1 hereof to
include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be
so extended accordingly by way of a supplemental Executive
Order.
SECTION 18. Separability Clause. If any provision of this Order
is declared unconstitutional, the same shall not affect the validity
and effectivity of the other provisions hereof.
SECTION 19. Effectivity. – This Executive Order shall take effect
immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the
Philippine Truth Commission (PTC) is a mere ad hoc body formed
under the Office of the President with the primary task to
investigate reports of graft and corruption committed by third-level
public officers and employees, their co-principals, accomplices and
accessories during the previous administration, and thereafter to
submit its finding and recommendations to the President,
Congress and the Ombudsman. Though it has been described as
an "independent collegial body," it is essentially an entity within the
Office of the President Proper and subject to his control.
Doubtless, it constitutes a public office, as an ad hoc body is one.8
To accomplish its task, the PTC shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987. It is not, however, a quasi-judicial
body as it cannot adjudicate, arbitrate, resolve, settle, or render
awards in disputes between contending parties. All it can do is
gather, collect and assess evidence of graft and corruption and
make recommendations. It may have subpoena powers but it has
no power to cite people in contempt, much less order their arrest.
Although it is a fact-finding body, it cannot determine from such
facts if probable cause exists as to warrant the filing of an
information in our courts of law. Needless to state, it cannot
impose criminal, civil or administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries
which have been created as official, transitory and non-judicial
fact-finding bodies "to establish the facts and context of serious
violations of human rights or of international humanitarian law in a
country’s past."9 They are usually established by states emerging
from periods of internal unrest, civil strife or authoritarianism to
serve as mechanisms for transitional justice.
Truth commissions have been described as bodies that share the
following characteristics: (1) they examine only past events; (2)
they investigate patterns of abuse committed over a period of time,
as opposed to a particular event; (3) they are temporary bodies
that finish their work with the submission of a report containing
conclusions and recommendations; and (4) they are officially
sanctioned, authorized or empowered by the
State.10 "Commission’s members are usually empowered to
conduct research, support victims, and propose policy
recommendations to prevent recurrence of crimes. Through their
investigations, the commissions may aim to discover and learn
more about past abuses, or formally acknowledge them. They may
aim to prepare the way for prosecutions and recommend
institutional reforms."11
Thus, their main goals range from retribution to reconciliation. The
Nuremburg and Tokyo war crime tribunals are examples of a
retributory or vindicatory body set up to try and punish those
responsible for crimes against humanity. A form of a reconciliatory
tribunal is the Truth and Reconciliation Commission of South
Africa, the principal function of which was to heal the wounds of
past violence and to prevent future conflict by providing a cathartic
experience for victims.
The PTC is a far cry from South Africa’s model. The latter placed
more emphasis on reconciliation than on judicial retribution, while
the marching order of the PTC is the identification and punishment
of perpetrators. As one writer12 puts it:
The order ruled out reconciliation. It translated the Draconian code
spelled out by Aquino in his inaugural speech: "To those who talk
about reconciliation, if they mean that they would like us to simply
forget about the wrongs that they have committed in the past, we
have this to say: There can be no reconciliation without justice.
When we allow crimes to go unpunished, we give consent to their
occurring over and over again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the
petitioners asked the Court to declare it unconstitutional and to
enjoin the PTC from performing its functions. A perusal of the
arguments of the petitioners in both cases shows that they are
essentially the same. The petitioners-legislators summarized them
in the following manner:
(a) E.O. No. 1 violates the separation of powers as it
arrogates the power of the Congress to create a public
office and appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the
Administrative Code of 1987 cannot legitimize E.O. No. 1
because the delegated authority of the President to
structurally reorganize the Office of the President to
achieve economy, simplicity and efficiency does not
include the power to create an entirely new public office
which was hitherto inexistent like the "Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution and
pertinent statutes when it vested the "Truth Commission"
with quasi-judicial powers duplicating, if not superseding,
those of the Office of the Ombudsman created under the
1987 Constitution and the Department of Justice created
under the Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it
selectively targets for investigation and prosecution
officials and personnel of the previous administration as if
corruption is their peculiar species even as it excludes
 those of the other administrations, past and present, who
may be indictable.
(e) The creation of the "Philippine Truth Commission of
2010" violates the consistent and general international
practice of four decades wherein States constitute truth
commissions to exclusively investigate human rights
violations, which customary practice forms part of the
generally accepted principles of international law which the
Philippines is mandated to adhere to pursuant to the
Declaration of Principles enshrined in the Constitution.
(f) The creation of the "Truth Commission" is an exercise in
futility, an adventure in partisan hostility, a launching pad
for trial/conviction by publicity and a mere populist
propaganda to mistakenly impress the people that
widespread poverty will altogether vanish if corruption is
eliminated without even addressing the other major causes
of poverty.
(g) The mere fact that previous commissions were not
constitutionally challenged is of no moment because
neither laches nor estoppel can bar an eventual question
on the constitutionality and validity of an executive
issuance or even a statute."13
In their Consolidated Comment,14 the respondents, through the
Office of the Solicitor General (OSG), essentially questioned the
legal standing of petitioners and defended the assailed executive
order with the following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to
create a public office because the President’s executive
power and power of control necessarily include the
inherent power to conduct investigations to ensure that
laws are faithfully executed and that, in any event, the
Constitution, Revised Administrative Code of 1987 (E.O.
No. 292), 15 Presidential Decree (P.D.) No. 141616 (as
amended by P.D. No. 1772), R.A. No. 9970,17 and settled
jurisprudence that authorize the President to create or form
such bodies.
2] E.O. No. 1 does not usurp the power of Congress to
appropriate funds because there is no appropriation but a
mere allocation of funds already appropriated by
Congress.
3] The Truth Commission does not duplicate or supersede
the functions of the Office of the Ombudsman
(Ombudsman) and the Department of Justice (DOJ),
because it is a fact-finding body and not a quasi-judicial
body and its functions do not duplicate, supplant or erode
the latter’s jurisdiction.
4] The Truth Commission does not violate the equal
protection clause because it was validly created for
laudable purposes.
The OSG then points to the continued existence and validity of
other executive orders and presidential issuances creating similar
bodies to justify the creation of the PTC such as Presidential
Complaint and Action Commission (PCAC) by President Ramon B.
Magsaysay, Presidential Committee on Administrative
Performance Efficiency (PCAPE) by President Carlos P. Garcia
and Presidential Agency on Reform and Government
Operations (PARGO) by President Ferdinand E. Marcos.18
From the petitions, pleadings, transcripts, and memoranda, the
following are the principal issues to be resolved:
1. Whether or not the petitioners have the legal standing to
file their respective petitions and question Executive Order
No. 1;
2. Whether or not Executive Order No. 1 violates the
principle of separation of powers by usurping the powers of
Congress to create and to appropriate funds for public
offices, agencies and commissions;
 3. Whether or not Executive Order No. 1 supplants the
powers of the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal
protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of
Executive Order No. 1, the Court needs to ascertain whether the
requisites for a valid exercise of its power of judicial review are
present.
Like almost all powers conferred by the Constitution, the power of
judicial review is subject to limitations, to wit: (1) there must be an
actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have the standing
to question the validity of the subject act or issuance; otherwise
stated, he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality must
be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.19
Among all these limitations, only the legal standing of the
petitioners has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators
to file their petition for failure to demonstrate their personal stake in
the outcome of the case. It argues that the petitioners have not
shown that they have sustained or are in danger of sustaining any
personal injury attributable to the creation of the PTC. Not claiming
to be the subject of the commission’s investigations, petitioners will
not sustain injury in its creation or as a result of its proceedings.20
The Court disagrees with the OSG in questioning the legal
standing of the petitioners-legislators to assail Executive Order No.
1. Evidently, their petition primarily invokes usurpation of the
power of the Congress as a body to which they belong as
members. This certainly justifies their resolve to take the cudgels
for Congress as an institution and present the complaints on the
usurpation of their power and rights as members of the legislature
before the Court. As held in Philippine Constitution Association v.
Enriquez,21
To the extent the powers of Congress are impaired, so is the
power of each member thereof, since his office confers a right to
participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress
causes a derivative but nonetheless substantial injury, which can
be questioned by a member of Congress. In such a case, any
member of Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the
prerogative, powers and privileges vested by the Constitution in
their office remain inviolate. Thus, they are allowed to question the
validity of any official action which, to their mind, infringes on their
prerogatives as legislators.22
With regard to Biraogo, the OSG argues that, as a taxpayer, he
has no standing to question the creation of the PTC and the
budget for its operations.23 It emphasizes that the funds to be used
for the creation and operation of the commission are to be taken
from those funds already appropriated by Congress. Thus, the
allocation and disbursement of funds for the commission will not
entail congressional action but will simply be an exercise of the
President’s power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that
he sustained, or is in danger of sustaining, any personal and direct
injury attributable to the implementation of Executive Order No. 1.
Nowhere in his petition is an assertion of a clear right that may
justify his clamor for the Court to exercise judicial power and to
wield the axe over presidential issuances in defense of the
Constitution. The case of David v. Arroyo24 explained the deep-
seated rules on locus standi. Thus:
Locus standi is defined as "a right of appearance in a court of
justice on a given question." In private suits, standing is governed
by the "real-parties-in interest" rule as contained in Section 2, Rule
3 of the 1997 Rules of Civil Procedure, as amended. It provides
that "every action must be prosecuted or defended in the
name of the real party in interest." Accordingly, the "real-party-in
interest" is "the party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of the suit."
Succinctly put, the plaintiff’s standing is based on his own right to
the relief sought.
The difficulty of determining locus standi arises in public suits.
Here, the plaintiff who asserts a "public right" in assailing an
allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently
from any other person. He could be suing as a "stranger," or in the
category of a "citizen," or ‘taxpayer." In either case, he has to
adequately show that he is entitled to seek judicial protection. In
other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a
"citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and
"taxpayer" standing in public actions. The distinction was first laid
down in Beauchamp v. Silk, where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the plaintiff in a
citizen’s suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins: "In matter of mere
public right, however…the people are the real parties…It is at least
the right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public
grievance be remedied." With respect to taxpayer’s suits, Terr v.
Jordan held that "the right of a citizen and a taxpayer to maintain
an action in courts to restrain the unlawful use of public funds to
his injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed
with, and thus hinders the activities of governmental agencies
engaged in public service, the United State Supreme Court laid
down the more stringent "direct injury" test in Ex Parte Levitt,
later reaffirmed in Tileston v. Ullman. The same Court ruled that
for a private individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must show that
he has sustained a direct injury as a result of that action, and
it is not sufficient that he has a general interest common to all
members of the public.
This Court adopted the "direct injury" test in our jurisdiction.
In People v. Vera, it held that the person who impugns the validity
of a statute must have "a personal and substantial interest in
the case such that he has sustained, or will sustain direct
injury as a result." The Vera doctrine was upheld in a litany of
cases, such as, Custodio v. President of the Senate, Manila Race
Horse Trainers’ Association v. De la Fuente, Pascual v. Secretary
of Public Works and Anti-Chinese League of the Philippines v.
Felix. [Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on
standing is a matter of procedure, hence, can be relaxed for
nontraditional plaintiffs like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the
matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest."25
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the
Court held that in cases of paramount importance where serious
constitutional questions are involved, the standing requirements
may be relaxed and a suit may be allowed to prosper even where
there is no direct injury to the party claiming the right of judicial
review. In the first Emergency Powers Cases,27 ordinary citizens
and taxpayers were allowed to question the constitutionality of
several executive orders although they had only an indirect and
general interest shared in common with the public.
The OSG claims that the determinants of transcendental
importance28 laid down in CREBA v. ERC and Meralco29 are non-
existent in this case. The Court, however, finds reason in Biraogo’s
assertion that the petition covers matters of transcendental
importance to justify the exercise of jurisdiction by the Court. There
are constitutional issues in the petition which deserve the attention
of this Court in view of their seriousness, novelty and weight as
precedents. Where the issues are of transcendental and
paramount importance not only to the public but also to the Bench
and the Bar, they should be resolved for the guidance of
all.30 Undoubtedly, the Filipino people are more than interested to
know the status of the President’s first effort to bring about a
promised change to the country. The Court takes cognizance of
the petition not due to overwhelming political undertones that
clothe the issue in the eyes of the public, but because the Court
stands firm in its oath to perform its constitutional duty to settle
legal controversies with overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the
Truth Commission is a public office and not merely an adjunct
body of the Office of the President.31 Thus, in order that the
President may create a public office he must be empowered by the
Constitution, a statute or an authorization vested in him by law.
According to petitioner, such power cannot be presumed32 since
there is no provision in the Constitution or any specific law that
authorizes the President to create a truth commission.33 He adds
that Section 31 of the Administrative Code of 1987, granting the
President the continuing authority to reorganize his office, cannot
serve as basis for the creation of a truth commission considering
the aforesaid provision merely uses verbs such as "reorganize,"
"transfer," "consolidate," "merge," and "abolish."34 Insofar as it
vests in the President the plenary power to reorganize the Office
of the President to the extent of creating a public office, Section 31
is inconsistent with the principle of separation of powers enshrined
in the Constitution and must be deemed repealed upon the
effectivity thereof.35
Similarly, in G.R. No. 193036, petitioners-legislators argue that the
creation of a public office lies within the province of Congress and
not with the executive branch of government. They maintain that
the delegated authority of the President to reorganize under
Section 31 of the Revised Administrative Code: 1) does not permit
the President to create a public office, much less a truth
commission; 2) is limited to the reorganization of the administrative
structure of the Office of the President; 3) is limited to the
restructuring of the internal organs of the Office of the President
Proper, transfer of functions and transfer of agencies; and 4) only
to achieve simplicity, economy and efficiency.36 Such continuing
authority of the President to reorganize his office is limited, and by
issuing Executive Order No. 1, the President overstepped the
limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative
about the creation by the President of a fact-finding body such as
a truth commission. Pointing to numerous offices created by past
presidents, it argues that the authority of the President to create
public offices within the Office of the President Proper has long
been recognized.37 According to the OSG, the Executive, just like
the other two branches of government, possesses the inherent
authority to create fact-finding committees to assist it in the
performance of its constitutionally mandated functions and in the
exercise of its administrative functions.38 This power, as the OSG
explains it, is but an adjunct of the plenary powers wielded by the
President under Section 1 and his power of control under Section
17, both of Article VII of the Constitution.39
It contends that the President is necessarily vested with the power
to conduct fact-finding investigations, pursuant to his duty to
ensure that all laws are enforced by public officials and employees
of his department and in the exercise of his authority to assume
directly the functions of the executive department, bureau and
office, or interfere with the discretion of his officials.40 The power of
the President to investigate is not limited to the exercise of his
power of control over his subordinates in the executive branch, but
extends further in the exercise of his other powers, such as his
power to discipline subordinates,41 his power for rule making,
adjudication and licensing purposes42 and in order to be informed
on matters which he is entitled to know.43
The OSG also cites the recent case of Banda v. Ermita,44 where it
was held that the President has the power to reorganize the
offices and agencies in the executive department in line with his
constitutionally granted power of control and by virtue of a valid
delegation of the legislative power to reorganize executive offices
under existing statutes.
Thus, the OSG concludes that the power of control necessarily
includes the power to create offices. For the OSG, the President
may create the PTC in order to, among others, put a closure to the
reported large scale graft and corruption in the government.45
The question, therefore, before the Court is this: Does the creation
of the PTC fall within the ambit of the power to reorganize as
expressed in Section 31 of the Revised Administrative Code?
Section 31 contemplates "reorganization" as limited by the
following functional and structural lines: (1) restructuring the
internal organization of the Office of the President Proper by
abolishing, consolidating or merging units thereof or transferring
functions from one unit to another; (2) transferring any function
under the Office of the President to any other Department/Agency
or vice versa; or (3) transferring any agency under the Office of the
President to any other Department/Agency or vice versa. Clearly,
the provision refers to reduction of personnel, consolidation of
offices, or abolition thereof by reason of economy or redundancy
of functions. These point to situations where a body or an office is
already existent but a modification or alteration thereof has to be
effected. The creation of an office is nowhere mentioned, much
less envisioned in said provision. Accordingly, the answer to the
question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of
the President under Section 31 is a misplaced supposition, even in
the plainest meaning attributable to the term "restructure"– an
"alteration of an existing structure." Evidently, the PTC was not
part of the structure of the Office of the President prior to the
enactment of Executive Order No. 1. As held in Buklod ng
Kawaning EIIB v. Hon. Executive Secretary,46
But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch
does not have to end here. We must not lose sight of the very
source of the power – that which constitutes an express grant of
power. Under Section 31, Book III of Executive Order No. 292
(otherwise known as the Administrative Code of 1987), "the
President, subject to the policy in the Executive Office and in order
to achieve simplicity, economy and efficiency, shall have the
continuing authority to reorganize the administrative structure of
the Office of the President." For this purpose, he may transfer the
functions of other Departments or Agencies to the Office of the
President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we
ruled that reorganization "involves the reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy
or redundancy of functions." It takes place when there is an
alteration of the existing structure of government offices or units
therein, including the lines of control, authority and responsibility
between them. The EIIB is a bureau attached to the Department of
Finance. It falls under the Office of the President. Hence, it is
subject to the President’s continuing authority to reorganize.
[Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the
President’s power of control. Control is essentially the power to
alter or modify or nullify or set aside what a subordinate officer had
done in the performance of his duties and to substitute the
judgment of the former with that of the latter.47 Clearly, the power
of control is entirely different from the power to create public
offices. The former is inherent in the Executive, while the latter
finds basis from either a valid delegation from Congress, or his
inherent duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from
Congress, empowering the President to create a public office?
According to the OSG, the power to create a truth commission
pursuant to the above provision finds statutory basis under P.D.
1416, as amended by P.D. No. 1772.48 The said law granted the
President the continuing authority to reorganize the national
government, including the power to group, consolidate bureaus
and agencies, to abolish offices, to transfer functions, to create
and classify functions, services and activities, transfer
appropriations, and to standardize salaries and materials. This
decree, in relation to Section 20, Title I, Book III of E.O. 292 has
been invoked in several cases such as Larin v. Executive
Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as a
justification for the President to create a public office. Said decree
is already stale, anachronistic and inoperable. P.D. No. 1416 was
a delegation to then President Marcos of the authority to
reorganize the administrative structure of the national government
including the power to create offices and transfer appropriations
pursuant to one of the purposes of the decree, embodied in its last
"Whereas" clause:
WHEREAS, the transition towards the parliamentary form of
government will necessitate flexibility in the organization of the
national government.
Clearly, as it was only for the purpose of providing manageability
and resiliency during the interim, P.D. No. 1416, as amended by
P.D. No. 1772, became functus oficio upon the convening of the
First Congress, as expressly provided in Section 6, Article XVIII of
the 1987 Constitution. In fact, even the Solicitor General agrees
with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted
was the last whereas clause of P.D. 1416 says "it was enacted to
prepare the transition from presidential to parliamentary. Now, in a
parliamentary form of government, the legislative and executive
powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was
issued. Now would you agree with me that P.D. 1416 should not
be considered effective anymore upon the promulgation, adoption,
ratification of the 1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416,
Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to
reorganize the entire National Government is deemed repealed, at
least, upon the adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass muster
on the basis of P.D. No. 1416 as amended by P.D. No. 1772, the
creation of the PTC finds justification under Section 17, Article VII
of the Constitution, imposing upon the President the duty to
ensure that the laws are faithfully executed. Section 17 reads:
Section 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of
power in the three principal branches of government is a grant of
all powers inherent in them. The President’s power to conduct
investigations to aid him in ensuring the faithful execution of laws –
in this case, fundamental laws on public accountability and
transparency – is inherent in the President’s powers as the Chief
Executive. That the authority of the President to conduct
investigations and to create bodies to execute this power is not
explicitly mentioned in the Constitution or in statutes does not
mean that he is bereft of such authority.51 As explained in the
landmark case of Marcos v. Manglapus:52
x x x. The 1987 Constitution, however, brought back the
presidential system of government and restored the separation of
legislative, executive and judicial powers by their actual distribution
among three distinct branches of government with provision for
checks and balances.
It would not be accurate, however, to state that "executive power"
is the power to enforce the laws, for the President is head of state
as well as head of government and whatever powers inhere in
such positions pertain to the office unless the Constitution itself
withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President. It
also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the
country's foreign relations.
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise
of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive power."
Corollarily, the powers of the President cannot be said to be
limited only to the specific powers enumerated in the Constitution.
In other words, executive power is more than the sum of specific
powers so enumerated.
It has been advanced that whatever power inherent in the
government that is neither legislative nor judicial has to be
executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our
laws are faithfully executed. As stated above, the powers of the
President are not limited to those specific powers under the
Constitution.53 One of the recognized powers of the President
granted pursuant to this constitutionally-mandated duty is the
power to create ad hoc committees. This flows from the obvious
need to ascertain facts and determine if laws have been faithfully
executed. Thus, in Department of Health v. Camposano,54 the
authority of the President to issue Administrative Order No. 298,
creating an investigative committee to look into the administrative
charges filed against the employees of the Department of Health
for the anomalous purchase of medicines was upheld. In said
case, it was ruled:
The Chief Executive’s power to create the Ad hoc
Investigating Committee cannot be doubted. Having been
constitutionally granted full control of the Executive Department, to
which respondents belong, the President has the obligation to
ensure that all executive officials and employees faithfully comply
with the law. With AO 298 as mandate, the legality of the
investigation is sustained. Such validity is not affected by the fact
that the investigating team and the PCAGC had the same
composition, or that the former used the offices and facilities of the
latter in conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc
investigating bodies to exist is to allow an inquiry into matters
which the President is entitled to know so that he can be properly
advised and guided in the performance of his duties relative to the
execution and enforcement of the laws of the land. And if history is
to be revisited, this was also the objective of the investigative
bodies created in the past like the PCAC, PCAPE, PARGO, the
Feliciano Commission, the Melo Commission and the Zenarosa
Commission. There being no changes in the government structure,
the Court is not inclined to declare such executive power as non-
existent just because the direction of the political winds have
changed.
On the charge that Executive Order No. 1 transgresses the power
of Congress to appropriate funds for the operation of a public
office, suffice it to say that there will be no appropriation but only
an allotment or allocations of existing funds already appropriated.
Accordingly, there is no usurpation on the part of the Executive of
the power of Congress to appropriate funds. Further, there is no
need to specify the amount to be earmarked for the operation of
the commission because, in the words of the Solicitor General,
"whatever funds the Congress has provided for the Office of the
President will be the very source of the funds for the
commission."55 Moreover, since the amount that would be
allocated to the PTC shall be subject to existing auditing rules and
regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The President’s power to conduct investigations to ensure that
laws are faithfully executed is well recognized. It flows from the
faithful-execution clause of the Constitution under Article VII,
Section 17 thereof.56 As the Chief Executive, the president
represents the government as a whole and sees to it that all laws
are enforced by the officials and employees of his department. He
has the authority to directly assume the functions of the executive
department.57
Invoking this authority, the President constituted the PTC to
primarily investigate reports of graft and corruption and to
recommend the appropriate action. As previously stated, no quasi-
judicial powers have been vested in the said body as it cannot
adjudicate rights of persons who come before it. It has been said
that "Quasi-judicial powers involve the power to hear and
determine questions of fact to which the legislative policy is to
apply and to decide in accordance with the standards laid down by
law itself in enforcing and administering the same law."58 In simpler
terms, judicial discretion is involved in the exercise of these quasi-
judicial power, such that it is exclusively vested in the judiciary and
must be clearly authorized by the legislature in the case of
administrative agencies.
The distinction between the power to investigate and the power to
adjudicate was delineated by the Court in Cariño v. Commission
on Human Rights.59 Thus:
"Investigate," commonly understood, means to examine, explore,
inquire or delve or probe into, research on, study. The dictionary
definition of "investigate" is "to observe or study closely: inquire
into systematically: "to search or inquire into: x x to subject to an
official probe x x: to conduct an official inquiry." The purpose of
investigation, of course, is to discover, to find out, to learn, obtain
information. Nowhere included or intimated is the notion of settling,
deciding or resolving a controversy involved in the facts inquired
into by application of the law to the facts established by the
inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o
follow up step by step by patient inquiry or observation. To trace or
track; to search into; to examine and inquire into with care and
accuracy; to find out by careful inquisition; examination; the taking
of evidence; a legal inquiry;" "to inquire; to make an investigation,"
"investigation" being in turn described as "(a)n administrative
function, the exercise of which ordinarily does not require a
hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or
otherwise, for the discovery and collection of facts concerning a
certain matter or matters."
"Adjudicate," commonly or popularly understood, means to
adjudge, arbitrate, judge, decide, determine, resolve, rule on,
settle. The dictionary defines the term as "to settle finally (the
rights and duties of the parties to a court case) on the merits of
issues raised: x x to pass judgment on: settle judicially: x x act as
judge." And "adjudge" means "to decide or rule upon as a judge or
with judicial or quasi-judicial powers: x x to award or grant judicially
in a case of controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of
judicial authority. To determine finally. Synonymous
with adjudge in its strictest sense;" and "adjudge" means: "To pass
on judicially, to decide, settle or decree, or to sentence or
condemn. x x. Implies a judicial determination of a fact, and the
entry of a judgment." [Italics included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the
judicial function of a court of justice, or even a quasi-judicial
agency or office. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a judicial
function. To be considered as such, the act of receiving evidence
and arriving at factual conclusions in a controversy must be
accompanied by the authority of applying the law to the factual
conclusions to the end that the controversy may be decided or
resolved authoritatively, finally and definitively, subject to appeals
or modes of review as may be provided by law.60 Even
respondents themselves admit that the commission is bereft of any
quasi-judicial power.61
Contrary to petitioners’ apprehension, the PTC will not supplant
the Ombudsman or the DOJ or erode their respective powers. If at
all, the investigative function of the commission will complement
those of the two offices. As pointed out by the Solicitor General,
the recommendation to prosecute is but a consequence of the
overall task of the commission to conduct a fact-finding
investigation."62 The actual prosecution of suspected offenders,
much less adjudication on the merits of the charges against
them,63 is certainly not a function given to the commission. The
phrase, "when in the course of its investigation," under Section
2(g), highlights this fact and gives credence to a contrary
interpretation from that of the petitioners. The function of
determining probable cause for the filing of the appropriate
complaints before the courts remains to be with the DOJ and the
Ombudsman.64
At any rate, the Ombudsman’s power to investigate under R.A. No.
6770 is not exclusive but is shared with other similarly authorized
government agencies. Thus, in the case of Ombudsman v.
Galicia,65 it was written:
This power of investigation granted to the Ombudsman by the
1987 Constitution and The Ombudsman Act is not exclusive but is
shared with other similarly authorized government agencies such
as the PCGG and judges of municipal trial courts and municipal
circuit trial courts. The power to conduct preliminary investigation
on charges against public employees and officials is likewise
concurrently shared with the Department of Justice. Despite the
passage of the Local Government Code in 1991, the Ombudsman
retains concurrent jurisdiction with the Office of the President and
the local Sanggunians to investigate complaints against local
elective officials. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the
Ombudsman to investigate criminal cases under Section 15 (1) of
R.A. No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any
person, any act or omission of any public officer or employee,
office or agency, when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of its
primary jurisdiction, it may take over, at any stage, from any
investigatory agency of government, the investigation of such
cases. [Emphases supplied]
The act of investigation by the Ombudsman as enunciated above
contemplates the conduct of a preliminary investigation or the
determination of the existence of probable cause. This is
categorically out of the PTC’s sphere of functions. Its power to
investigate is limited to obtaining facts so that it can advise and
guide the President in the performance of his duties relative to the
execution and enforcement of the laws of the land. In this regard,
the PTC commits no act of usurpation of the Ombudsman’s
primordial duties.
The same holds true with respect to the DOJ. Its authority under
Section 3 (2), Chapter 1, Title III, Book IV in the Revised
Administrative Code is by no means exclusive and, thus, can be
shared with a body likewise tasked to investigate the commission
of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that
the findings of the PTC are to be accorded conclusiveness. Much
like its predecessors, the Davide Commission, the Feliciano
Commission and the Zenarosa Commission, its findings would, at
best, be recommendatory in nature. And being so, the
Ombudsman and the DOJ have a wider degree of latitude to
decide whether or not to reject the recommendation. These
offices, therefore, are not deprived of their mandated duties but
will instead be aided by the reports of the PTC for possible
indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the
investigative power of the President, the Court finds difficulty in
upholding the constitutionality of Executive Order No. 1 in view of
its apparent transgression of the equal protection clause enshrined
in Section 1, Article III (Bill of Rights) of the 1987 Constitution.
Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the
equal protection of the laws.
The petitioners assail Executive Order No. 1 because it is violative
of this constitutional safeguard. They contend that it does not
apply equally to all members of the same class such that the intent
of singling out the "previous administration" as its sole object
makes the PTC an "adventure in partisan hostility."66 Thus, in
order to be accorded with validity, the commission must also cover
reports of graft and corruption in virtually all administrations
previous to that of former President Arroyo.67
The petitioners argue that the search for truth behind the reported
cases of graft and corruption must encompass acts committed not
only during the administration of former President Arroyo but also
during prior administrations where the "same magnitude of
controversies and anomalies"68 were reported to have been
committed against the Filipino people. They assail the
classification formulated by the respondents as it does not fall
under the recognized exceptions because first, "there is no
substantial distinction between the group of officials targeted for
investigation by Executive Order No. 1 and other groups or
persons who abused their public office for personal gain; and
second, the selective classification is not germane to the purpose
of Executive Order No. 1 to end corruption."69 In order to attain
constitutional permission, the petitioners advocate that the
commission should deal with "graft and grafters prior and
subsequent to the Arroyo administration with the strong arm of the
law with equal force."70
Position of respondents
According to respondents, while Executive Order No. 1 identifies
the "previous administration" as the initial subject of the
investigation, following Section 17 thereof, the PTC will not confine
itself to cases of large scale graft and corruption solely during the
said administration.71 Assuming arguendo that the commission
would confine its proceedings to officials of the previous
administration, the petitioners argue that no offense is committed
against the equal protection clause for "the segregation of the
transactions of public officers during the previous administration as
possible subjects of investigation is a valid classification based on
substantial distinctions and is germane to the evils which the
Executive Order seeks to correct."72 To distinguish the Arroyo
administration from past administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large
scale graft and corruption in the previous administration which
have eroded public confidence in public institutions. There is,
therefore, an urgent call for the determination of the truth
regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to
deter others from committing the evil, restore the people’s faith
and confidence in the Government and in their public servants.
Second. The segregation of the preceding administration as the
object of fact-finding is warranted by the reality that unlike with
administrations long gone, the current administration will most
likely bear the immediate consequence of the policies of the
previous administration.
Third. The classification of the previous administration as a
separate class for investigation lies in the reality that
the evidence of possible criminal activity, the evidence that could
lead to recovery of public monies illegally dissipated, the policy
lessons to be learned to ensure that anti-corruption laws are
faithfully executed, are more easily established in the regime that
immediately precede the current administration.
Fourth. Many administrations subject the transactions of their
predecessors to investigations to provide closure to issues that are
pivotal to national life or even as a routine measure of due
diligence and good housekeeping by a nascent administration like
the Presidential Commission on Good Government (PCGG),
created by the late President Corazon C. Aquino under Executive
Order No. 1 to pursue the recovery of ill-gotten wealth of her
predecessor former President Ferdinand Marcos and his cronies,
and the Saguisag Commission created by former President
Joseph Estrada under Administrative Order No, 53, to form an ad-
hoc and independent citizens’ committee to investigate all the
facts and circumstances surrounding "Philippine Centennial
projects" of his predecessor, former President Fidel V.
Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded
is that of the equality of right which is embodied in Section 1,
Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It
has been embodied in a separate clause, however, to provide for
a more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal
protection clause.74
"According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed."75 It "requires public bodies and institutions to treat
similarly situated individuals in a similar manner."76 "The purpose
of the equal protection clause is to secure every person within a
state’s jurisdiction against intentional and arbitrary discrimination,
whether occasioned by the express terms of a statue or by its
improper execution through the state’s duly constituted
authorities."77 "In other words, the concept of equal justice under
the law requires the state to govern impartially, and it may not
draw distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."78
The equal protection clause is aimed at all official state actions,
not just those of the legislature.79 Its inhibitions cover all the
departments of the government including the political and
executive departments, and extend to all actions of a state
denying equal protection of the laws, through whatever agency or
whatever guise is taken. 80
It, however, does not require the universal application of the laws
to all persons or things without distinction. What it simply requires
is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must pass
the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to
the purpose of the law; (3) It is not limited to existing conditions
only; and
(4) It applies equally to all members of the same
class.81 "Superficial differences do not make for a valid
classification."82
For a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the
class.83 "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights
conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that
the members of the class should possess the same characteristics
in equal degree. Substantial similarity will suffice; and as long as
this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a
class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the
non-application of the law to him."84
The classification must not be based on existing circumstances
only, or so constituted as to preclude addition to the number
included in the class. It must be of such a nature as to embrace all
those who may thereafter be in similar circumstances and
conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. As elucidated in
Victoriano v. Elizalde Rope Workers' Union85 and reiterated in a
long line of cases,86
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the state.
It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is directed
or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain
particulars. A law is not invalid because of simple inequality. The
very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a
valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which
make for real differences, that it must be germane to the purpose
of the law; that it must not be limited to existing conditions only;
and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1
should be struck down as violative of the equal protection clause.
The clear mandate of the envisioned truth commission is to
investigate and find out the truth "concerning the reported cases of
graft and corruption during the previous administration"87 only. The
intent to single out the previous administration is plain, patent and
manifest. Mention of it has been made in at least three portions of
the questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely
to investigating and finding out the truth concerning the reported
cases of graft and corruption during the previous administration,
and which will recommend the prosecution of the offenders and
secure justice for all;
SECTION 1. Creation of a Commission. – There is hereby
created the PHILIPPINE TRUTH COMMISSION, hereinafter
referred to as the "COMMISSION," which shall primarily seek and
find the truth on, and toward this end, investigate reports of graft
and corruption of such scale and magnitude that shock and offend
the moral and ethical sensibilities of the people, committed by
public officers and employees, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration; and thereafter recommend the appropriate action
or measure to be taken thereon to ensure that the full measure of
justice shall be served without fear or favor.
SECTION 2. Powers and Functions. – The Commission, which
shall have all the powers of an investigative body under Section
37, Chapter 9, Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding investigation of
reported cases of graft and corruption referred to in Section 1,
involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during
the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the
Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo
administration is but just a member of a class, that is, a class of
past administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness which
the equal protection clause cannot sanction. Such discriminating
differentiation clearly reverberates to label the commission as a
vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences between the
Arroyo administration and other past administrations, these
distinctions are not substantial enough to merit the restriction of
the investigation to the "previous administration" only. The reports
of widespread corruption in the Arroyo administration cannot be
taken as basis for distinguishing said administration from earlier
administrations which were also blemished by similar widespread
reports of impropriety. They are not inherent in, and do not inure
solely to, the Arroyo administration. As Justice Isagani Cruz put it,
"Superficial differences do not make for a valid classification."88
The public needs to be enlightened why Executive Order No. 1
chooses to limit the scope of the intended investigation to the
previous administration only. The OSG ventures to opine that "to
include other past administrations, at this point, may unnecessarily
overburden the commission and lead it to lose its
effectiveness."89 The reason given is specious. It is without doubt
irrelevant to the legitimate and noble objective of the PTC to stamp
out or "end corruption and the evil it breeds."90
The probability that there would be difficulty in unearthing
evidence or that the earlier reports involving the earlier
administrations were already inquired into is beside the point.
Obviously, deceased presidents and cases which have already
prescribed can no longer be the subjects of inquiry by the PTC.
Neither is the PTC expected to conduct simultaneous
investigations of previous administrations, given the body’s limited
time and resources. "The law does not require the
impossible" (Lex non cogit ad impossibilia).91
Given the foregoing physical and legal impossibility, the Court
logically recognizes the unfeasibility of investigating almost a
century’s worth of graft cases. However, the fact remains that
Executive Order No. 1 suffers from arbitrary classification. The
PTC, to be true to its mandate of searching for the truth, must not
exclude the other past administrations. The PTC must, at least,
have the authority to investigate all past administrations.
While reasonable prioritization is permitted, it should not be
arbitrary lest it be struck down for being unconstitutional. In the
often quoted language of Yick Wo v. Hopkins,92
Though the law itself be fair on its face and impartial in
appearance, yet, if applied and administered by public authority
with an evil eye and an unequal hand, so as practically to make
unjust and illegal discriminations between persons in similar
circumstances, material to their rights, the denial of equal justice is
still within the prohibition of the constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc
body, its scope is limited. The Court, however, is of the considered
view that although its focus is restricted, the constitutional
guarantee of equal protection under the laws should not in any
way be circumvented. The Constitution is the fundamental and
paramount law of the nation to which all other laws must conform
and in accordance with which all private rights determined and all
public authority administered.93 Laws that do not conform to the
Constitution should be stricken down for being
unconstitutional.94 While the thrust of the PTC is specific, that is,
for investigation of acts of graft and corruption, Executive Order
No. 1, to survive, must be read together with the provisions of the
Constitution. To exclude the earlier administrations in the guise of
"substantial distinctions" would only confirm the petitioners’ lament
that the subject executive order is only an "adventure in partisan
hostility." In the case of US v. Cyprian,95 it was written: "A rather
limited number of such classifications have routinely been held or
assumed to be arbitrary; those include: race, national origin,
gender, political activity or membership in a political party, union
activity or membership in a labor union, or more generally the
exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements
of constitutionality, it must include or embrace all persons who
naturally belong to the class.96 "Such a classification must not be
based on existing circumstances only, or so constituted as to
preclude additions to the number included within a class, but must
be of such a nature as to embrace all those who may thereafter be
in similar circumstances and conditions. Furthermore, all who are
in situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable from
those of the members of the class must be brought under the
influence of the law and treated by it in the same way as are the
members of the class."97
The Court is not unaware that "mere underinclusiveness is not
fatal to the validity of a law under the equal protection
clause."98 "Legislation is not unconstitutional merely because it is
not all-embracing and does not include all the evils within its
reach."99 It has been written that a regulation challenged under the
equal protection clause is not devoid of a rational predicate simply
because it happens to be incomplete.100 In several instances, the
underinclusiveness was not considered a valid reason to strike
down a law or regulation where the purpose can be attained in
future legislations or regulations. These cases refer to the "step by
step" process.101 "With regard to equal protection claims, a
legislature does not run the risk of losing the entire remedial
scheme simply because it fails, through inadvertence or otherwise,
to cover every evil that might conceivably have been attacked."102
In Executive Order No. 1, however, there is no inadvertence. That
the previous administration was picked out was deliberate and
intentional as can be gleaned from the fact that it was underscored
at least three times in the assailed executive order. It must be
noted that Executive Order No. 1 does not even mention any
particular act, event or report to be focused on unlike the
investigative commissions created in the past. "The equal
protection clause is violated by purposeful and intentional
discrimination."103
To disprove petitioners’ contention that there is deliberate
discrimination, the OSG clarifies that the commission does not
only confine itself to cases of large scale graft and corruption
committed during the previous administration.104 The OSG points
to Section 17 of Executive Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. If and when
in the judgment of the President there is a need to expand the
mandate of the Commission as defined in Section 1 hereof to
include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be
so extended accordingly by way of a supplemental Executive
Order.
The Court is not convinced. Although Section 17 allows the
President the discretion to expand the scope of investigations of
the PTC so as to include the acts of graft and corruption
committed in other past administrations, it does not guarantee that
they would be covered in the future. Such expanded mandate of
the commission will still depend on the whim and caprice of the
President. If he would decide not to include them, the section
would then be meaningless. This will only fortify the fears of the
petitioners that the Executive Order No. 1 was "crafted to tailor-fit
the prosecution of officials and personalities of the Arroyo
administration."105
The Court tried to seek guidance from the pronouncement in the
case of Virata v. Sandiganbayan,106 that the "PCGG Charter
(composed of Executive Orders Nos. 1, 2 and 14) does not violate
the equal protection clause." The decision, however, was devoid of
any discussion on how such conclusory statement was arrived at,
the principal issue in said case being only the sufficiency of a
cause of action.
A final word
The issue that seems to take center stage at present is - whether
or not the Supreme Court, in the exercise of its constitutionally
mandated power of Judicial Review with respect to recent
initiatives of the legislature and the executive department, is
exercising undue interference. Is the Highest Tribunal, which is
expected to be the protector of the Constitution, itself guilty of
violating fundamental tenets like the doctrine of separation of
powers? Time and again, this issue has been addressed by the
Court, but it seems that the present political situation calls for it to
once again explain the legal basis of its action lest it continually be
accused of being a hindrance to the nation’s thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1
of the 1987 Constitution, is vested with Judicial Power that
"includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a
grave of abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government."
Furthermore, in Section 4(2) thereof, it is vested with the power of
judicial review which is the power to declare a treaty, international
or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation unconstitutional. This
power also includes the duty to rule on the constitutionality of the
application, or operation of presidential decrees, proclamations,
orders, instructions, ordinances, and other regulations. These
provisions, however, have been fertile grounds of conflict between
the Supreme Court, on one hand, and the two co-equal bodies of
government, on the other. Many times the Court has been
accused of asserting superiority over the other departments.
To answer this accusation, the words of Justice Laurel would be a
good source of enlightenment, to wit: "And when the judiciary
mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and
to establish for the parties in an actual controversy the rights which
that instrument secures and guarantees to them."107
Thus, the Court, in exercising its power of judicial review, is not
imposing its own will upon a co-equal body but rather simply
making sure that any act of government is done in consonance
with the authorities and rights allocated to it by the Constitution.
And, if after said review, the Court finds no constitutional violations
of any sort, then, it has no more authority of proscribing the actions
under review. Otherwise, the Court will not be deterred to
pronounce said act as void and unconstitutional.
It cannot be denied that most government actions are inspired with
noble intentions, all geared towards the betterment of the nation
and its people. But then again, it is important to remember this
ethical principle: "The end does not justify the means." No matter
how noble and worthy of admiration the purpose of an act, but if
the means to be employed in accomplishing it is simply
irreconcilable with constitutional parameters, then it cannot still be
allowed.108 The Court cannot just turn a blind eye and simply let it
pass. It will continue to uphold the Constitution and its enshrined
principles.
"The Constitution must ever remain supreme. All must bow to the
mandate of this law. Expediency must not be allowed to sap its
strength nor greed for power debase its rectitude."109
Lest it be misunderstood, this is not the death knell for a truth
commission as nobly envisioned by the present administration.
Perhaps a revision of the executive issuance so as to include the
earlier past administrations would allow it to pass the test of
reasonableness and not be an affront to the Constitution. Of all the
branches of the government, it is the judiciary which is the most
interested in knowing the truth and so it will not allow itself to be a
hindrance or obstacle to its attainment. It must, however, be
emphasized that the search for the truth must be within
constitutional bounds for "ours is still a government of laws and not
of men."110
WHEREFORE, the petitions are GRANTED. Executive Order No.
1 is hereby declared UNCONSTITUTIONAL insofar as it is
violative of the equal protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease
and desist from carrying out the provisions of Executive Order No.
1.
SO ORDERED
G.R. No. 189185, August 16, 2016
WILFREDO MOSQUEDA, MARCELO VILLAGANES, JULIETA LAWAGON,
CRISPIN ALCOMENDRAS, CORAZON SABINADA, VIRGINIA CATA-AG,
FLORENCIA SABANDON, AND LEDEVINA
ADLAWAN, Petitioners, v. PILIPINO BANANA GROWERS & EXPORTERS
ASSOCIATION, INC., DAVAO FRUITS CORPORATION, AND LAPANDAY
AGRICULTURAL AND DEVELOPMENT CORPORATION, Respondents.
G.R. No. 189305
CITY GOVERNMENT OF DAVAO, Petitioner, v. COURT OF APPEALS,
PILIPINO BANANA GROWERS & EXPORTERS ASSOCIATION (PBGEA),
DAVAO FRUITS CORPORATION, AND LAPANDAY AGRICULTURAL AND
DEVELOPMENT CORPORATION, Respondent.
DECISION
BERSAMIN, J.:
This appeal through the consolidated petitions for review
on certiorari assails the decision promulgated on January 9, 20091 whereby
the Court of Appeals (CA) reversed and set aside the judgment rendered on
September 22, 2007 by the Regional Trial Court (RTC), Branch 17, in Davao
City upholding the validity and constitutionality of Davao City Ordinance No.
0309-07, to wit:ChanRobles Virtualawl ibra ry
WHEREFORE, premises considered, the appeal is GRANTED. The assailed
September 22, 2007 Decision of the Regional Trial Court (RTC), 11th Judicial
Region, Branch 17, Davao City, upholding the validity and constitutionality
of Davao City Ordinance No. 0309-07, is hereby REVERSED and SET
ASIDE.
FURTHER, the Writ of Preliminary Injunction dated 28 January 2008 properties. It must be planted with diversified trees that grow taller than
enjoining the City Government of Davao, and any other person or entity what are usually planted and grown in the plantation to protect those within
acting in its behalf, from enforcing and implementing City Ordinance No. the adjacent fields, neighboring farms, residential area, schools and
0309-07, is hereby made permanent. workplaces.

SO ORDERED. SECTION 4. SCOPE AND APPLICABILITY - The provisions of this Ordinance

shall apply to all agricultural entities within the territorial jurisdiction of
Antecedents
Davao City;
After several committee hearings and consultations with various
SECTION 5. BAN OF AERIAL SPRAYING - A ban on aerial spraying shall be
stakeholders, the Sangguniang Panlungsod of Davao City enacted
strictly enforced in the territorial jurisdiction of Davao City three (3) months
Ordinance No. 0309, Series of 2007, to impose a ban against aerial spraying
after the effectivity of this Ordinance.
as an agricultural practice by all agricultural entities within Davao
City, viz.:
SECTION 6. BUFFER ZONE - Consistent with national legislation and
ChanRoblesVirt ualawli bra ry

ORDINANCE NO. 0309-07

government regulations, all agricultural entities must provide for a thirty
Series of 2007
(30) meter buffer zone within the boundaries of their agricultural
farms/plantations. This buffer zone must be properly identified through
AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL
Global Positioning System (GPS) survey. A survey plan showing the metes
PRACTICE IN ALL AGRICULTURAL ACTIVITIES BY ALL AGRICULTURAL
and bounds of each agricultural farm/plantation must be submitted to the
ENTITIES IN DAVAO CITY
City Mayor's Office, with the buffer zone clearly identified therein;
Be it enacted by the Sangguniang Panlungsod of Davao City in session
SECTION 7. PENAL PROVISION - Violation of any provision of this Ordinance
assembled that:
shall be punished as follows:
SECTION 1. TITLE. This Ordinance shall be known as "An Ordinance
a. First Offense: Fine of P5,000.00 and imprisonment of not less than
chanRoble svirtual Lawlib ra ry

Banning Aerial Spraying as an Agricultural Practice in all Agricultural

chanRoble svirtual Lawlib ra ry

one (1) month but not more than three (3) months;
Activities by all Agricultural Entities in Davao City";
b. Second Offense: Fine of P5,000.00 and imprisonment of not less than
SECTION 2. POLICY OF THE CITY. It shall be the policy of the City of Davao
three (3) months but not more than six (6) months and suspension of City-
to eliminate the method of aerial spraying as an agricultural practice in all
issued permits and licenses for one (1) year;
agricultural activities by all entities within Davao City;
c. Third Offense: Fine of P5,000.00 and imprisonment of not less than six
SECTION 3. DEFINITION OF TERMS:
(6) months but not more than one (1) year and perpetual cancellation of
City issued permits and licenses;
a. Aerial Spraying - refers to application of substances through the use
chanRoble svirtual Lawlib ra ry

of aircraft of any form which dispenses the substances in the air.

Provided, that in case the violation has been committed by a juridical
person, the person in charge of the management thereof shall be held
b. Agricultural Practices - refer to the practices conducted by agricultural
liable;
entities in relation to their agricultural activities;
SECTION 8. REPEALING CLAUSE - Any Ordinance that is contrary to or
c. Agricultural Activities - refer to activities that include, but not limited to,
inconsistent with any of the provisions of this Ordinance shall be deemed
land preparation, seeding, planting, cultivation, harvesting and bagging;
amended or repealed accordingly.
d. Agricultural Entities - refer to persons, natural or juridical, involved in
SECTION 9. EFFECTIVITY - This Ordinance shall take effect thirty (30) days
agricultural activities
from its publication in a newspaper of general circulation in Davao City;
e. Buffer Zone - is an identified 30-meter zone within and around the
ENACTED, January 23, 2007 by a majority vote of all the Members of the
boundaries of agricultural farms/plantations that need special monitoring to
Sangguniang Panlungsod.2
avoid or minimize harm to the environment and inhabitants pursuant to
chanroblesvi rt uallawl ibra ry

City Mayor Rodrigo Duterte approved the ordinance on February 9,

policies and guidelines set forth in this Ordinance and other government
2007.3 The ordinance took effect on March 23, 2007 after its publication in
regulations. It is an area of land that must lie within the property which
the newspaper Mindanao Pioneer.4 Pursuant to Section 5 of the ordinance,
does not include public lands, public thoroughfares or adjacent private
the ban against aerial spraying would be strictly enforced three months
thereafter.
The Pilipino Banana Growers and Exporters Association, Inc. (PBGEA) and
two of its members, namely: Davao Fruits Corporation and Lapanday
Agricultural and Development Corporation (PBGEA, et al.), filed their
petition in the RTC to challenge the constitutionality of the ordinance, and to
seek the issuance of provisional reliefs through a temporary restraining
order (TRO) and/or writ of preliminary injunction.5 They alleged that the
ordinance exemplified the unreasonable exercise of police power; violated
the equal protection clause; amounted to the confiscation of property
without due process of law; and lacked publication pursuant] to Section
5116 of Republic Act No. 7160 (Local Government Code).
On May 8, 2007, the residents living within and adjacent to banana
plantations in Davao City led by Wilfredo Mosqueda,7 joined by other
residents of Davao City,8 (Mosqueda, et al.) submitted their Motion for
Leave to Intervene and Opposition to the Issuance of a Preliminary
Injunction.9 The RTC granted their motion on June 4, 2007.10
On June 20, 2007, the RTC granted the prayer for issuance of the writ of
preliminary injunction, and subsequently issued the writ.11 chanrobles law
Judgment of the RTC
On September 22, 2007, after trial, the RTC rendered judgment declaring
Ordinance No. 0309-07 valid and constitutional, decreeing thusly:
WHEREFORE, finding the subject [O]rdinance No. 0309-07 valid and
constitutional in all aspect of the grounds assailed by the petitioner, said
[C]ity [O]rdinance No. 0309-07, is sustained of its validity and
constitutionality.
Accordingly, the order of this court dated June 20, 2007, granting the writ of
preliminary injunction as prayed for by petitioner is ordered cancelled and
set aside as a result of this decision.
SO ORDERED.12 chanroblesvi rt uallawl ibra ry
The RTC opined that the City of Davao had validly exercised police
power13 under the General Welfare Clause of the Local Government
Code;14 that the ordinance, being based on a valid classification, was
consistent with the Equal Protection Clause; that aerial spraying was distinct
from other methods of pesticides application because it exposed the
residents to a higher degree of health risk caused by aerial drift;15 and that
the ordinance enjoyed the presumption of constitutionality, and could be
invalidated only upon a clear showing that it had violated the
Constitution.16
chanroble slaw
However, the RTC, recognizing the impracticability of the 3-month transition
period under Section 5 of Ordinance No. 0309-07, recommended the parties
to agree on an extended transition period.17 chanrobles law
Decision of the CA
PBGEA, et al. appealed,18 and applied for injunctive relief from the
CA,19 which granted the application20 and consequently issued a TRO to
meanwhile enjoin the effectivity of the ordinance.21 chanrobles law
On January 9, 2009, the CA promulgated its assailed decision reversing the
judgment of the RTC.22 It declared Section 5 of Ordinance No. 0309-07 as
void and unconstitutional for being unreasonable and oppressive; found the
three-month transition period impractical and oppressive in view of the
engineering and technical requirements of switching from aerial spraying to
truck-mounted boom spraying; and opined that the ban ran afoul with the
Equal Protection Clause inasmuch as Section 3(a) of the ordinance - which
defined the term aerial spraying - did not make reasonable distinction
between the hazards, safety and beneficial effects of liquid substances that
were being applied aerially; the different classes of pesticides or fungicides;
and the levels of concentration of these substances that could be beneficial
and could enhance agricultural production.
chanrobles law
The CA did not see any established relation between the purpose of
protecting the public and the environment against the harmful effects of
aerial spraying, on one hand, and the imposition of the ban against aerial
spraying of all forms of substances, on the other. It ruled that the
maintenance of the 30-meter buffer zone within and around the agricultural
plantations under Section 6 of Ordinance No. 0309-07 constituted taking of
property without due process because the landowners were thereby
ChanRobles Vi rtua lawlib rary
compelled to cede portions of their property without just compensation; that
the exercise of police power to require the buffer zone was invalid because
there was no finding that the 30-meter surrounding belt was obnoxious to
the public welfare; and that, accordingly, Ordinance No. 0309-07 was
unconstitutional because of the absence of a separability clause.
The City of Davao and the intervenors filed their respective motions for
reconsideration, but the CA denied the motions on August 7, 2009.23 chanroble slaw
Hence, the separate, but now consolidated, appeals by petition for review
on certiorari.
Issues
In G.R. No. 189185, petitioners Mosqueda, et al. rely on the following
grounds, namely: ChanRoblesVirt ualawli bra ry
I
THE COURT OF APPEALS IGNORED FUNDAMENTAL PRECEPTS AND
CONCEPTS OF LAW WHICH, PROPERLY CONSIDERED, NECESSARILY LEAD
TO THE CONCLUSION THAT THE DAVAO ORDINANCE IS CONSTITUTIONAL
AND VALID
II

THE DAVAO ORDINANCE IS CONSISTENT WITH THE EQUAL PROTECTION
CLAUSE
III
THE MEANS EMPLOYED BY THE DAVAO ORDINANCE IS MORE THAN
REASONABLY RELATED TO THE PURPOSE IT SEEKS TO ACHIEVE
IV
THE DAVAO ORDINANCE IS VALID, BEING DEMONSTRABLY REASONABLE
AND FAIR
V
THE REQUIREMENT RELATING TO THE 30-METER BUFFER ZONE ARE [SIC]
CONSISTENT WITH DUE PROCESS OF LAW, BEING A VALID EXERCISE OF
POLICE POWER
Mosqueda, et al. state that the CA ignored well-established precepts like the
primacy of human rights over property rights and the presumption of
validity in favor of the ordinance; that the CA preferred the preservation of
the profits of respondents PBGEA, et al. to the residents' right to life, health
and ecology,24 thereby disregarding the benevolent purpose of the
ordinance; that the CA assumed the functions of the lawmaker when it set
aside the wisdom behind the enactment of the ordinance; that the CA failed
to apply the precautionary principle, by which the State was allowed to take
positive actions to prevent harm to the environment and to human health
despite the lack of scientific certainty; that the CA erred in applying the
"strict scrutiny method" in holding that the ordinance violated the Equal
Protection Clause because it only thereby applied in reviewing classifications
that affected fundamental rights; that there was nothing wrong with
prohibiting aerial spraying per se considering that even the aerial spraying
of water produced drift that could affect unwilling neighbors whose,
constitutional right to a clean and healthy environment might be
impinged;25 that as far as the three-month period was concerned, the CA
cralawred
should have considered that manual spraying could be conducted while the
PBGEA, et al. laid down the preparations for the conduct of boom
spraying;26 that "reasonableness" could be more appropriately weighed by
balancing the interests of the parties against the protection of basic rights,
like the right to life, to health, and to a balanced and healthful
ecology;27 that PBGEA, et al. did not substantiate their claim of potential
profit losses that would result from the shift; that business profits should
remain inferior and subordinate to their fundamental rights as residents of
Davao City, which were the rights that the assailed ordinance has sought to
protect;28 that PBGEA, et al. did not explore other modes of pesticide
treatment either as a stop-gap or as a temporary measure while shifting to
truck mounted boom spraying;29 that the imposition of the 30-meter buffer
zone was a valid exercise of police power that necessarily flowed from the
protection afforded by the ordinance from the unwanted effects of ground
spraying; that the imposition of the buffer zone did not constitute
compensable taking under police power, pursuant to the pronouncements
in Seng Kee & Co. v. Earnshaw and Piatt30Patalinghug v. Court of
Appeals,31 and Social Justice Society (SJS) v. Atienza, Jr.;32 and that the 30-
meter buffer zone conformed with the ISO 1400033 and the DENR
Environmental Compliance Certificate (ECC) requirement.34 chanroble slaw
In G.R. No. 189305, petitioner City of Davao submits the following as the
issues to be considered and resolved, to wit:ChanRoblesVi rt ualawlib ra ry
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT SECTION 5 OF ORDINANCE NO. 0309-07, SERIES OF 2007
IS OPPRESSIVE AND AN UNREASONABLE EXERCISE OF DELEGATED POLICE
POWER
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT ORDINANCE NO. 0309-07 IS VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE OF THE CONSTITUTION;
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT ORDINANCE NO. 0309-07 CONSTITUTES TAKING OF
PROPERTY WITHOUT COMPENSATION, THUS, VIOLATIVE OF THE DUE
PROCESS CLAUSE OF THE CONSTITUTION
IV
WHETHER OR NOT AERIAL SPRAYING OF FUNGICIDES IS SAFE TO THE
PEOPLE AND THE ENVIRONMENT
The City of Davao explains that it had the authority to enact the assailed
ordinance because it would thereby protect the environment and regulate
property and business in the interest of the general welfare pursuant to
Section 458 of the Local Government Code;35 that the ordinance was
enacted to carry out its mandate of promoting the public welfare under the
General Welfare Clause (Section 16 of the Local Government Code); that the
ordinance did not violate the Equal Protection Clause because the distinction
lies in aerial spray as a method of application being more deleterious than
other modes; that aerial spraying produces more drift that causes
discomfort, and an extremely offensive and obnoxious experience the part
of the residents; that spray drift cannot be controlled even with use by the
respondents of highly advanced apparatus, such as the Differential Global
Positioning System, Micronair Rotary Drift Control Atomizers, Intellimap,
Intelliflow Spray Valve System, Control and Display Unit and the Target Flow
Spray Valve Switch System;36 that because of the inherent toxicity of
Mancozeb (the fungicide aerially applied by the respondents), there is no
need to provide for a substantial distinction based on the level of
concentration;37 that as soon as fungicides are released in the air, they
become air pollutants pursuant to Section 5 of Republic Act No. 8749
(Philippine Clean Air Act of 1999),38 and the activity thus falls under the
authority of the local government units to ban; and that the ordinance does
not only seek to protect and promote human health but also serves as a
measure against air pollution.
The City of Davao insists that it validly exercised police power because it
does not thereby oblige the shift from aerial to truck-mounted boom
spraying; that the respondents only choose boom spraying to justify the
alleged impracticability of the transition period by erroneously adding the
months required for each of the stages without considering other steps that
may be simultaneously undertaken;39 that the Court should apply its ruling
in Social Justice Society v. Atienza, Jr.,40 by which the six-month period for
the folding-up of business operations was declared a legitimate exercise of
police power; that the respondents did not present any documentary
evidence on the feasibility of adopting other methods;41 that only 1,800
hectares out of 5,200 hectares of plantations owned and operated by
PBGEA's members use aerial spraying, hence, the perceived ominous
consequence of imposing a ban on aerial spray to the banana industry is
entirely misleading;42 that the urgency of prohibiting aerial spray justifies
the three-month transition period; that the complaints of the community
residents - ranging from skin itchiness, contraction and/or tightening in the
chest, nausea, appetite loss and difficulty in breathing after exposure to
spray mist - only prove that aerial spraying brings discomfort and harm to
the residents; that considering that the testimony of Dr. Lynn Crisanta R.
Panganiban, a pharmacologist and toxicologist, established that fungicides
could cause debilitating effects on the human body once inhaled or digested,
the CA erred in holding that there was no correlation between aerial
application and the complaints of the residents; that given that aerial spray
produces more drift and is uncontrollable compared to the other methods of
applying fungicides, the ordinance becomes reasonable;43 and that the
medical-related complaints of the residents need not be proven by medical
records considering that these were based on personal knowledge.44 chanroble slaw
The City of Davao contends that the imposition of the 30-meter buffer zone
is a valid exercise of police power, rendering the claim for just compensation
untenable; that the maintenance of the buffer zone does not require the
respondents to cede a portion of their landholdings; that the planting of
diversified trees within the buffer zone will serve to insulate the residents
from spray drift; that such buffer zone does not deprive the landowners of
the lawful and beneficial use of their property;45 and that the buffer zone is
consistent with the Constitution, which reminds property owners that the
use of property bears a social function.46
chanrob leslaw
In their comment, the respondents posit that the petition of the City; of
Davao should be dismissed for failure to attach material portions of the
records, and for raising factual errors that are not within the realm of this
appeal by petition for review on certiorari;47 that the CA correctly declared
the ordinance as unreasonable due to the impossibility of complying with the
three-month transition period; that shifting from aerial to truck-mounted
boom spraying will take at least three years and entails careful planning,
equipment and machineries, civil works, and capital funding of at least
P400,000,000.00;48 that the Court could rely on its ruling in City of Manila v.
Laguio, Jr.,49 where an ordinance directing an existing establishment to wind
up or to transfer its business was declared as confiscatory in nature, and,
therefore, unconstitutional;50 that the total ban against aerial sprayig,
coupled with the inadequate time to shift to truck-mounted boom spraying,
effectively deprives the respondents with an efficient means to control the
spread of the Black Sigatoka disease that threatens the banana plantations;
that the ordinance will only expose the plantations to the virulent disease
that is capable of infecting 60% of the plantations on a single
cycle51 missed;52 that compared with other modes of application, aerial
spraying is more cost-efficient, safe and accurate; that truck-mounted boom
spraying, for instance, requires 80-200 liters of solution per hectare,53 while
manual spraying uses 200-300 liters of solution per hectare; that aerial
spraying oily requires 30 liters per hectare; that in terms of safety and
accuracy, manual spraying is the least safe and accurate,54 and produces
more drift than aerial spraying;55 that due to the 300-liter solution required,
the workers will be more exposed to the solution during manual application
and such application will thus be more in conflict with the purpose of the
ordinance to prevent human exposure;56 that the respondents also find the
irrigation sprinklers suggested by the City of Davao as wasteful, unsafe and
impractical because it cannot provide the needed coverage for application of
the solution to effectively control. the Black Sigatoka disease; that in
contrast, aerial application, coupled with the latest state of the art
technology and equipment, ensures accuracy, effectiveness, efficiency and
safety compared to the other methods of application; that the respondents
vouch for the safety of the fungicides they use by virtue of such fungicides
having been registered with the Fertilizer and Pesticide Authority (FPA) and
classified as Category IV,57 and found to be mild; and that oral ingestion in
large doses is required before any adverse effects to humans may result.58 chanroble slaw
The respondents lament that the ban was imposed without any scientific
basis; that the report59 prepared by a fact-finding team (composed of the
Vice Mayor, the City Health Officer, The City Planning and Development
Coordinator and the Assistance City Planning and Development Coordinator)
organized by the City of Davao revealed that there was no scientific
evidence to support the clamor for the ban against aerial spraying; that
furthermore, national government agencies like the Department of
Agriculture (DA), Department of Health (DOR) and the Department of Trade
and Industry (DTI) similarly concluded that there was no scientific evidence
to support the ban;60 that for four decades since the adoption of aerial
spraying, there has been no reported outbreak or any predisposition to
ailment connected with the pesticides applied; that the testimonies of the
residents during the trial were mere "emotional anecdotal evidence" that did
not establish any scientific or medical bases of any causal connection
between the alleged health conditions complained of and the fungicides
applied during aerial spraying;61 that the allegations of health and
environmental harm brought by the pesticides used to treat the banana
plantations were unfounded; that the 2001 study of the International
Agency for Research on Cancer showed that, contrary to the claim of Dra.
Panganiban, the by-product of Mancozeb (Ethylenethiourea or ETU) was
"non-genotoxic" and not expected to produce thyroid cancer;62 that Carlos
Mendoza, a geo-hydrologist and geophysicist, testified that underground
water contamination through aerial spraying would be impossible because of
the presence of latex, thick layers of clay and underlying rock
formations;63 that even the study conducted by the Philippine Coconut
Authority (PCA) showed that the rhinoceros beetle infestation in coconut
plantations adjacent to the banana plantations was due to the farmer's
failure to observe phyto-sanitary measures, not to aerial spraying;64 that
furthermore, aerial spraying is internationally accepted as a "Good
Agricultural Practice" (GAP)65 under the International Code of Conduct on
the Distribution and Use of Pesticides by the United Nations-Food and
Agricultural Organization (UN-FAO); that as such, they observe the
standards laid down by the UN-FAO, and utilize aerial spraying equipment
that will ensure accuracy, safety and efficiency in applying the substances,
and which more than complies with the requirement under the Guidelines on
Good Practice for Aerial Application of Pesticides (Rome 2001);66 that in
addition, they strictly observe standard operating procedures prior to take-
off,67 in-flight68 and post-flight;69 that they substantially invested in state-of-
the-art technology and equipment designed to ensure safety, accuracy, and
effectiveness of aerial spraying operations, to avoid aerial drift;70 that their
equipment include: wind meters (to measure the wind velocity in a specific
area), wind cones (to determine the wind direction, and whether the wind is
a headwind, tailwind or a crosswind); central weather station (to measure
wind speed, the temperature and relative humidity), Differential Global
Positioning System (DGPS),71 Intellimap,72 Control and Display
Unit,73 Micronair Rotary Drift Control Atomizers (AU 5000 Low-Drift
model),74 Intelliflow Spray Valve System,75 and Target Flow Spray Valve
Switch System;76 and that they want to minimize, if not, eliminate the
occurrence of spray drift in order to minimize wastage of resources and
reduced efficiency of spraying programs implemented to control the Black
Sigatoka disease.77chanrobles law
The respondents maintain that Ordinance No. 0309-07 will regulate aerial
spraying as a method of application, instead of the substances being used
therein; that the prohibition is overbroad in light of other available
reasonable measures that may be resorted to by the local government; that
the ordinance is unreasonable, unfair, oppressive, and tantamount to a
restriction or prohibition of trade;78 that the ordinance will effectively impose
a prohibition against all pesticides, including fungicides that fall under the
mildest type of substance; that as such, the petitioner has disregarded
existing valid and substantive classifications established and recognized by
the World Health Organization (WHO) that are adopted by the FPA; that the
FPA is the national agency armed with the professional competence,
technical expertise, and legal mandate to deal with the issue of use and
application of pesticides in our country; that the fungicides they administer
are duly registered with the FPA, and with other more developed countries
that have observed a stricter environmental and public health regulation
such as the United States Environmental Protection Agency (EPA) and the
European Union (EU); that as such, the City of Davao has disregarded valid,
substantial and significant distinctions between levels of concentration of the
fungicides in the water solution aerially sprayed; that it is the FPA that
regulates the level of concentration of agricultural chemicals prior to
commercial distribution and use in the country; that the members of PBGEA
only spray a water solution (water cocktail) containing 0.1 liter to 1.5 liters
of the active ingredient of fungicide in a 30-liter water solution per hectare
that has undergone rigorous testing and .evaluation prior to registration by
the FPA; that the active ingredients of the fungicide are so diluted that no
harm may be posed to public health or to the environment through aerial
application;79 that the ordinance was so broad that it prohibits aerial
application of any substance, including water;80 and that aside from
fungicides, the respondents also aerially apply vitamins, minerals and
organic fertilizers.81
chanrobles law
The respondents submit that the maintenance of the 30-meter buffer zone
under Section 5 of the ordinance constitutes an improper exercise of police
power; that the ordinance will require all landholdings to maintain the buffer
zone, thereby diminishing to a mere 1,600 square meters of usable and
productive land for every hectare of the plantation bounding residential
areas, with the zone being reserved for planting "diversified trees;" that this
requirement amounts to taking without just compensation or due process;
and that the imposition of the buffer zone unduly deprives all landowners
within the City of Davao the beneficial use of their property;82 that the
precautionary principle cannot be applied blindly, because its application still
requires some scientific basis; that the principle is also based on a mere
declaration that has not even reached the level of customary international
law, not on a treaty binding on the Government.83 chanroble slaw
The respondents argue that the illegality of the transition period results in
the invalidity of the ordinance as it does not carry a separability clause; and
that the absence of such clause signifies the intention of the Sangguniang
Panlungsod of City of Davao to make the ordinance effective as a whole. 84 chanrobles law
The main issue is whether or not Ordinance No. 0309-07 is unconstitutional
on due process and equal protection grounds for being unreasonable and
oppressive, and an invalid exercise of police power: (a) in imposing a ban
on aerial spraying as an agricultural practice in Davao City under Section 5;
(b) in decreeing a 3-month transition-period to shift to other modes of
pesticide application under Section 5; and (c) in requiring the maintenance
of the 30-meter buffer zone under Section 6 thereof in all agricultural lands
in Davao City.
Ruling of the Court
We deny the petitions for review for their lack of merit.
I
Preliminary considerations:
The significant role of the banana industry
in ensuring economic stability and food security
There is no question that the implementation of Ordinance No. 0309-07,
although the ordinance concerns the imposition of the ban against aerial
spraying in all agricultural lands within Davao City, will inevitably have a
considerable impact on the country's banana industry, particularly on export barangays hosting the affected plantations, and has a disastrous impact on
trading. export trading. The DTI has forecasted that the ban would discourage the
entry of new players in the locality, which would have a potential drawback
Banana exportation plays a significant role in the maintenance of the in employment generation.99 chanrobleslaw

country's economic, stability and food security. Banana is a consistent dollar

earner and the fourth largest produced commodity in the Philippines.85 In II
2010, the Philippines figured among the top three banana producing The Sangguniang Bayan of Davao City
countries in the world.86 In 2014, fresh bananas accounted for 17% of the enacted Ordinance No. 0309-07
country's top agricultural export commodities, gaining a close second to under its corporate powers
coconut oil with 18%.87 The Davao Region (Region XI)88 was the top banana
producing region in 2013, with a production growth rate of 16.4%, and The petitioners assert that Ordinance No. 0309-07 is a valid act of the
33.76% share in the total agricultural output of the Region.89 chanrobleslaw

Sangguniang Bayan of Davao City- pursuant to its delegated authority to

exercise police power in the furtherance of public welfare and in ensuring a
Despite these optimistic statistics, the banana industry players struggle to sound and balanced environment for its constituents. The respondents
keep up with the demands of the trade by combatting the main threat to negate this assertion, describing the ordinance as unreasonable,
production posed by two major fungal diseases: the Panama Disease discriminatory and oppressive.
Tropical Race 4 (Fusarium oxysprum f.sp. cubense) and the Black Sigatoka
leaf spot disease (Mycosphaerella ffiensis morelet). Pesticides have proven The petitioners' assertion of its authority to enact Ordinance No. 0309-07 is
to be effective only against the Black Sigatoka disease. There is yet no upheld.
known cure for the Panama disease.90 chanrobles law

To be considered as a valid police power measure, an ordinance must pass a

The menace of the Black Sigatoka disease cannot be taken lightly. The two-pronged test: the formal (i.e., whether the ordinance is enacted within
disease causes destruction of the plant by significantly reducing the leaf the corporate powers of the local government unit, and whether it is passed
area, leading to premature ripening of the produce and resulting in yield in accordance with the procedure prescribed by law); and
losses of at least 50%.91 Due to its effects on banana export trading, the the substantive (i.e., involving inherent merit, like the conformity of the
disease has emerged as a global concern that has correspondingly forced ordinance with the limitations under the Constitution and the statutes, as
banana producers to increase the use of chemical pesticides.92 Protectant well as with the requirements of fairness and reason, and its consistency
fungicides such as Mancozeb, chlorothalonil and Propiconazole are applied to with public policy).100
combat the disease.93 These agricultural chemicals are aerially applied by
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the respondents in the banana plantations within the jurisdiction of Davao The formalities in enacting an ordinance are laid down in Section 53101 and
City to arrest the proliferation of the disease. Section 54102 of The Local Government Code. These provisions require the
ordinance to be passed by the majority of the members of the sanggunian
Considering that banana export plantations exist in vast monocultures, concerned, and to be presented to the mayor for approval. With no issues
effective treatment of the Black Sigatoka disease is done by frequent aerial regarding quorum during its deliberation having been raised, and with its
application of fungicides. This is an expensive practice because it requires approval of by City Mayor Duterte not being disputed, we see no reason to
permanent landing strips, facilities for the mixing and loading of fungicides, strike down Ordinance No. 0309-07 for non-compliance with the formal
and high recurring expense of spray materials.94 The cost of aerial spraying requisites under the Local Government Code.
accounts to 15-20% of the final retail price of the crop, making the
technology essentially unavailable to small landholdings that are more We next ascertain whether the City of Davao acted within the limits of its
vulnerable to the disease.95 chanrobles law

corporate powers in enacting Ordinance No. 0309-07.

Aerial spraying has become an agricultural practice in Davao City since the
establishment of the banana plantations in 1960.96 Out of the 5,205
hectares of commercial plantations devoted to Cavendish banana being
operated by the respondents in Davao City,97 around 1,800 hectares receive
treatment through aerial application. These plantations are situated in
Barangays Sirib, Manuel Guianga, Tamayong, Subasta Dacudao, Lasang,
Mandug, Waan, Tigatto and Callawa,98 and are affected by the ban imposed
by Ordinance No. 0309-07. The DTI has issued a statement to the effect
that the ban against aerial spraying in banana plantations "is expected to kill
The corporate powers of the local government unit confer the basic
authority to enact legislation that may interfere with personal liberty,
property, lawful businesses and occupations in order to promote the general
welfare.103 Such legislative powers spring from the delegation thereof by
Congress through either the Local Government Code or a special law. The
General Welfare Clause in Section 16 of the Local Government
Code embodies the legislative grant that enables the local government unit
to effectively accomplish and carry out the declared objects of its creation,
and to promote and maintain local autonomy.104 Section 16 reads: ChanRoblesVirtualawl ibra ry

the banana industry," affects the socio-economic development of the

Sec. 16. General Welfare. — Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government
units shall ensure and support among other things, the preservation and
enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve
public morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.
Section 16 comprehends two branches of delegated powers, namely:
the general legislative power and the police power proper. General
legislative power refers to the power delegated by Congress to the local
legislative body, or the Sangguniang Panlungsod in the case of Dayao
City,105 to enable the local legislative body to enact ordinances and make
regulations. This power is limited in that the enacted ordinances must not be
repugnant to law, and the power must be exercised to effectuate and
discharge the powers and duties legally conferred to the local legislative
body. The police power proper, on the other hand, authorizes the local
government unit to enact ordinances necessary and proper for the health
and safety, prosperity, morals, peace, good order, comfort, and convenience
of the local government unit and its constituents, and for the protection of
their property.106
chanrobleslaw
Section 458 of the Local Government Code explicitly vests the local
government unit with the authority to enact legislation .aimed at promoting
the general welfare, viz.:
ChanRobles Vi rtua lawlib rary
Section 458. Powers, Duties, Functions and Compensation. — (a) The
sangguniang panlungsod, as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate funds for the general
welfare of the city and its inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers of the city as provided
for under Section 22 of this Code. x x x
In terms of the right of the citizens to health and to a balanced and healthful
ecology, the local government unit takes its cue from Section 15 and
Section 16, Article II of the 1987 Constitution. Following the provisions of
the Local Government Code and the Constitution, the acts of the local
government unit designed to ensure the health and lives of its constituents
and to promote a balanced and healthful ecology are well within the
corporate powers vested in the local government unit. Accordingly, the
Sangguniang Bayan of Davao City is vested with the requisite authority to
enact an ordinance that seeks to protect the health and well-being of its
constituents.
The respondents pose a challenge against Ordinance No. 0309-07 on the
ground that the Sangguniang Bayan of Davao City has disregarded the
health of the plantation workers, contending that by imposing the ban
against aerial spraying the ordinance would place the plantation workers at
a higher health risk because the alternatives of either manual or truck-boom
spraying method would be adopted; and that exposing the workers to the
same risk sought to be prevented by the ordinance would defeat its
purported purpose.
We disagree with the respondents.
With or without the ban against aerial spraying, the health and safety of
plantation workers are secured by existing state policies, rules and
regulations implemented by the FPA, among others, which the respondents
are lawfully bound to comply with. The respondents even manifested their
strict compliance with these rules, including those in the UN-FAO Guidelines
on Good Practice for Aerial Application of Pesticides (Rome 2001). We
should note that the Rome 2001 guidelines require the pesticide applicators
to observe the standards provided therein to ensure the health and safety of
plantation workers. As such, there cannot be any imbalance between the
right to health of the residents vis-a-vis the workers even if a ban will be
imposed against aerial spraying and the consequent adoption of other
modes of pesticide treatment.
Furthermore, the constitutional right to health and maintaining
environmental integrity are privileges that do not only advance the interests
of a group of individuals. The benefits of protecting human health and the
environment transcend geographical locations and even generations. This is
the essence of Sections 15 and 16, Article II of the Constitution. In Oposa v.
Factoran, Jr.107 we declared that the right to a balanced and healthful
ecology under Section 16 is an issue of transcendental importance with
intergenerational implications. It is under this milieu that the questioned
ordinance should be appreciated.
Advancing the interests of the residents who are vulnerable to the alleged
health risks due to their exposure to pesticide drift justifies the motivation
behind the enactment of the ordinance. The City of Davao has the authority
to enact pieces of legislation that will promote the general welfare,
specifically the health of its constituents. Such authority should not be
construed, however, as a valid license for the City of Davao to enact any
ordinance it deems fit to discharge its mandate. A thin but well-defined line
separates authority to enact legislations from the method of accomplishing
the same.
By distinguishing authority from method we face this question: Is a
prohibition against aerial spraying a lawfully permissible method that the
local government unit of Davao City may adopt to prevent the purported
effects of aerial drift? To resolve this question, the Court must dig deeper
into the intricate issues arising from these petitions.
II
Ordinance No. 0309-07 violates the Due Process Clause
A valid ordinance must not only be enacted within the corporate powers of
the local government and passed according to the procedure prescribed by
law.108 In order to declare it as a valid piece of local legislation, it must also
comply with the following substantive requirements, namely: (1) it must not
contravene the Constitution or any statute; (2) it must be fair, not
oppressive; (3) it must not be partial or discriminatory; (4) it must not
prohibit but may regulate trade; (5) it must be general and consistent with
public policy; and (6) it must not be unreasonable.109
In the State's exercise of police power, the property rights of individuals
may be subjected to restraints and burdens in order to fulfill the objectives
of the Government.110 A local government unit is considered to have
properly exercised its police powers only if it satisfies the following
requisites, to wit: (1) the interests of the public generally, as distinguished
from those of a particular class, require the interference of the State; and
Fabregar, Ph.D, PBGEA Chairperson, to the effect that since banana
plantations in Davao City were configured for aerial spraying, the same lack
the road network to make "truck-mounted boom spraying" possible.
According to Dr. Fabregar, it was impossible to construct such road
chanroble slaw networks in a span of three (3) months. Engr. Magno P. Porticos, Jr.,
confirmed that the shift demands the construction of three hundred sixty
(360) linear kilometers of road which cannot be completed in three (3)
months.
In their separate testimonies, Dr. Fabregar and Engr. Porticos explained that
a shift to "truck-mounted boom spraying" requires the following steps which
may be completed in three (3) years: ChanRoblesVi rt ualawlib ra ry

(2) the means employed are reasonably necessary for the attainment of the 1. six (6) months for planning the reconfiguration of banana plantations to
object sought to be accomplished and not unduly oppressive.111 The first ensure effective truck-mounted boom spraying for the adequate protections
requirement refers to the Equal Protection Clause of the Constitution; the of the plantations from the Black Sigatoka fungus and other diseases, while
second, to the Due Process Clause of the Constitution.112 chanrobles law maximizing land use;

Substantive due process requires that a valid ordinance must have a 2. two (2) months to secure government permits for infrastructure works to
sufficient justification for the Government's action.113 This means that in be undertaken thereon;
exercising police power the local government unit must not arbitrarily,
whimsically or despotically enact the ordinance regardless of its salutary 3. clearing banana plants and dismantling or reconstructing fixed
purpose. So long as the ordinance realistically serves a legitimate public infrastructures, such as roads, drains, cable ways, and irrigation facilities,
purpose, and it employs means that are reasonably necessary to achieve which phase may be completed in eighteen (18) months;
that purpose without unduly oppressing the individuals regulated, the
ordinance must survive a due process challenge.114 chanrobles law 4. importation and purchase of trucks mounted with boom spraying, nurse
trucks and protective gears. The placing of orders and delivery of these
The respondents challenge Section 5 of Ordinance No. 0309-07 for being equipments, including the training [of] the personnel who would man the
unreasonable and oppressive in that it sets the effectivity of the ban at same, would take six (6) months; and cralawlawli bra ry

three months after publication of the ordinance. They allege that three
months will be inadequate time to shift from aerial to truck-mounted boom 5. securing the needed capitalization to finance these undertakings would
spraying, and effectively deprives them of efficient means to combat the take six (6) months to a year.
Black Sigatoka disease. Ms. Maria Victoria E. Sembrano, CPA, Chairperson of the PBGEA Finance
Committee, testified that her committee and the Technical Committee and
The petitioners counter that the period is justified considering the urgency of Engineering Group of PBGEA conducted a feasibility study to determine the
protecting the health of the residents. cost in undertaking the shift to ground spraying. Their findings fixed the
estimated cost for the purpose at Php 400 Million.
We find for the respondents.
x x x x
The impossibility of carrying out a shift to another mode of pesticide
application within three months can readily be appreciated given the vast Both appellees failed to rebut the foregoing testimonies with empirical
area of the affected plantations and the corresponding resources required findings to the contrary.
therefor. To recall, even the RTC recognized the impracticality of attaining a
full-shift to other modes of spraying within three months in view of the x x x x
costly financial and civil works required for the conversion.115 In the assailed
decision, the CA appropriately observed: ChanRoblesVi rtua lawlib rary Thus, in view of the infrastructural requirements as methodically explained,
There appears to be three (3) forms of ground spraying, as distinguished We are convinced that it was physically impossible for petitioners-appellants
from aerial spraying, which are: 1. "Truck-mounted boom spraying;" 2. to carry out a carefully planned configuration of vast hectares of banana
"manual or backpack spraying." and 3. "sprinkler spraying." Petitioners- plantations and be able to actually adopt "truck-mounted boom spraying"
appellants claim that it was physically impossible for them to shift to "truck- within three (3) months. To compel petitioners-appellants to abandon aerial
mounted boom spraying" within three (3) months before the aerial spraying spraying in favor of "manual or backpack spraying" or "sprinkler spraying"
ban is actually enforced. They cited the testimony of Dr. Maria Emilia Rita G. within 3 months puts petitioners-appellants in a vicious dilemma between
protecting its investments and the health of its workers, on the one hand,
and the threat of prosecution if they refuse to comply with the imposition.
We even find the 3-months transition period insufficient, not only in
acquiring and gearing-up the plantation workers of safety appurtenances,
but more importantly in reviewing safety procedures for "manual or
backpack spraying" and in training such workers for the purpose.
Additionally, the engineering works for a sprinkler system in vast hectares of
banana plantations could not possibly be completed within such period,
considering that safety and efficiency factors need to be considered in its
structural re-designing.
x x
Respondent-appellee argues that the Ordinance merely banned an
agricultural practice and did not actually prohibit the operation of banana
plantations; hence, it is not oppressive. While We agree that the measure
did not impose a closure of a lawful enterprise, the proviso in Section 5,
however, compels petitioners-appellants to abandon aerial spraying without
affording them enough time to convert and adopt other spraying practices.
This would preclude petitioners-appellants from being able to fertilize their
plantations with essential vitamins and minerals substances, aside from
applying thereon the needed fungicides or pesticides to control, if not
eliminate the threat of, plant diseases. Such an apparent eventuality would
prejudice the operation of the plantations, and the economic repercussions
thereof would just be akin to shutting down the venture.
This Court, therefore, finds Section 5 of Ordinance No. 0309-07 an invalid
provision because the compulsion thereunder to abandon aerial spraying
within an impracticable period of "three (3) months after the effectivity of
this Ordinance" is "unreasonable, oppressive and impossible to comply
with."116
chanroblesvi rtua llawlib ra ry
The required civil works for the conversion to truck-mounted boom spraying
alone will consume considerable time and financial resources given the
topography and geographical features of the plantations.117 As such, the
conversion could not be completed within the short timeframe of three
months. Requiring the respondents and other affected individuals to comply
with the consequences of the ban within the three-month period under pain
of penalty like fine, imprisonment and even cancellation of business permits
would definitely be oppressive as to constitute abuse of police power.
The respondents posit that the requirement of maintaining a buffer zone
under Section 6 of the ordinance violates due process for being confiscatory;
and that the imposition unduly deprives all agricultural landowners within
Davao City of the beneficial use of their property that amounts to taking
without just compensation.
The position of the
In City of Manila v. Laguio, Jr.,118 we have thoroughly explained that taking
only becomes confiscatory if it substantially divests the owner of the
beneficial use of its property, viz.: ChanRobles Vi rtua lawlib rary
An ordinance which permanently restricts the use of property that it cannot
be used for any reasonable purpose goes beyond regulation and must be
recognized as a taking of the property without just compensation. It is
intrusive and violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that "private
property shall not be taken for public use without just compensation." The
provision is the most important protection of property rights in the
Constitution. This is a restriction on the general power of the government to
take property. The constitutional provision is about ensuring that the
government does not confiscate the property of some to give it to others. In
x x part too, it is about loss spreading. If the government takes away a person's
property to benefit society, then society should pay. The principal purpose of
the guarantee is "to bar the Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be borne by the
public as a whole.
There are two different types of taking that can be identified. A "possessory"
taking occurs when the government confiscates or physically occupies
property. A "regulatory" taking occurs when the government's regulation
leaves no reasonable economically viable use of the property.
In the landmark case of Pennsylvania Coal v. Mahon, it was held that a
taking also could be found if government regulation of the use of property
went "too far." When regulation reaches a certain magnitude, in most if not
in all cases there must be an exercise of eminent domain and compensation
to support the act. While property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking.
No formula or rule can be devised to answer the questions of what is too far
and when regulation becomes a taking. In Mahon, Justice Holmes
recognized that it was "a question of degree and therefore cannot be
disposed of by general propositions." On many other occasions as well, the
U.S. Supreme Court has said that the issue of when regulation constitutes a
taking is a matter of considering the facts in each case. The Court asks
whether justice and fairness require that the economic loss caused by public
action must be compensated by the government and thus borne by the
public as a whole, or whether the loss should remain concentrated on those
few persons subject to the public action.
What is crucial in judicial consideration of regulatory takings is that
government regulation is a taking if it leaves no reasonable economically
viable use of property in a manner that interferes with reasonable
expectations for use. A regulation that permanently denies all economically
beneficial or productive use of land is, from the owner's point of view,
equivalent to a "taking" unless principles of nuisance or property law that
respondents is untenable. existed when the owner acquired the land make the use prohibitable. When
the owner of real property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to leave his
property economically idle, he has suffered a taking.
A regulation which denies all economically beneficial or productive use of
land will require compensation under the takings clause. Where a regulation
places limitations on land that fall short of eliminating all economically
beneficial use, a taking nonetheless may have occurred, depending on a
complex of factors including the regulation's economic effect on the
landowner, the extent to which the regulation interferes with reasonable
investment-backed expectations and the character of government action.
These inquiries are informed by the purpose of the takings clause which is to
prevent the government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a
whole.
A restriction on use of property may also constitute a "taking" if not
reasonably necessary to the effectuation of a substantial public purpose or if
it has an unduly harsh impact on the distinct investment-backed
expectations of the owner. (bold Emphasis supplied)
The establishment of the buffer zone is required for the purpose of
minimizing the effects of aerial spraying within and near the plantations.
Although Section 3(e) of the ordinance requires the planting of diversified
trees within the identified buffer zone, the requirement cannot be construed
and deemed as confiscatory requiring payment of just compensation. A
landowner may only be entitled to compensation if the taking amounts to a
permanent denial of all economically beneficial or productive uses of the
land. The respondents cannot be said to be permanently and completely
deprived of their landholdings because they can still cultivate or make other
productive uses of the areas to be identified as the buffer zones.
III
Ordinance No. 0309-07 violates the Equal Protection Clause
A serious challenge being posed against Ordinance No. 0309-07 rests on its
supposed collision with the Equal Protection Clause. The respondents submit
that the ordinance transgresses this constitutional guaranty on two counts,
to wit: (1) by prohibiting aerial spraying per se, regardless of the substance
or the level of concentration of the chemicals to be applied; and (2) by
imposing the 30-meter buffer zone in all agricultural lands in Davao City
regardless of the sizes of the landholding.
The constitutional right to equal protection requires that all persons or
things similarly situated should be treated alike, both as to rights conferred
and responsibilities imposed. It requires public bodies and institutions to
treat similarly situated individuals in a similar manner. The guaranty equal
protection secures every person within the State's jurisdiction against
intentional and arbitrary discrimination, whether occasioned by the express
terms of a statue or by its improper execution through the State's duly
constituted authorities. The concept of equal justice under the law demands
that the State governs impartially, and not to draw distinctions between
individuals solely on differences that are irrelevant to the legitimate
governmental objective.119
chanrobleslaw
Equal treatment neither requires universal application of laws to all persons
or things without distinction,120 nor intends to prohibit legislation by limiting
the object to which it is directed or by the territory in which it is to
operate.121 The guaranty of equal protection envisions equality among
equals determined according to a valid classification.122 If the groupings are
characterized by substantial distinctions that make real differences, one
class may be treated and regulated differently from another.123 In other
word, a valid classification must be: (1) based on substantial distinctions;
(2) germane to the purposes of the law; (3) not limited to existing
conditions only; and (4) equally applicable to all members of the class.124 chanrobles law
Based on these parameters, we find for the respondents.
The reasonability of a distinction and sufficiency of the justification given by
the Government for its conduct is gauged by using the means-end
test.125 This test requires analysis of: (1) the interests of the public that
generally require its exercise, as distinguished from those of a particular
class; and (2) the means employed that are reasonably necessary for the
accomplishment of the purpose and are not unduly oppressive upon
individuals.126 To determine the propriety of the classification, courts resort
to three levels of scrutiny, viz: the rational scrutiny, intermediate
scrutiny and strict scrutiny.
The rational basis scrutiny (also known as the rational relation test or
rational basis test) demands that the classification reasonably relate to the
legislative purpose.127 The rational basis test often applies in cases involving
economics or social welfare,128 or to any other case not involving a suspect
class.129
chanroble slaw
When the classification puts a quasi-suspect class at a disadvantage, it will
be treated under intermediate or heightened review. Classifications based
on gender or illegitimacy receives intermediate scrutiny.130 To survive
intermediate scrutiny, the law must not only further an important
governmental interest and be substantially related to that interest, but the
justification for the classification must be genuine and must not depend on
broad generalizations.131 chanrobles law
The strict scrutiny review applies when a legislative classification
impermissibly interferes with the exercise of a fundamental right or operates
to the peculiar class disadvantage of a suspect class. The Government
carries the burden to prove that the classification is necessary to achieve a
compelling state interest, and that it is the least restrictive means to protect
such interest.132 chanroble slaw
The petitioners advocate the rational basis test. In particular, the petitioning
residents of Davao City argue that the CA erroneously applied the strict
scrutiny approach when it declared that the ordinance violated the Equal
Protection Clause because the ban included all substances including water
and vitamins. The respondents agree with the CA, however, and add that
the ordinance does not rest on a valid distinction because it has lacked
scientific basis and has ignored the classifications of pesticides observed by
the FPA.
 application of these chemical substances pose health hazards to people,
We partly agree with both parties. animals, other crops and ground water sources;

In our view, the petitioners correctly argue that the rational basis approach WHEREAS, in order to achieve sustainable development, politics must be
appropriately applies herein. Under the rational basis test, we shall: (1) based on the Precautionary Principle. Environment measures must
discern the reasonable relationship between the means and the purpose of anticipate, prevent, and attack the causes of environmental degradation.
the ordinance; and (2) examine whether the means or the prohibition Where there are threats of serious, irreversible damage, lack of scientific
against aerial spraying is based on a substantial or reasonable distinction. A certainty should not be used as a reason for postponing measures to
reasonable classification includes all persons or things similarly situated with prevent environmental degradation;
respect to the purpose of the law.133 chanroble slaw

WHEREAS, it is the policy of the City of Davao to ensure the safety of its
Applying the test, the established classification under Ordinance No. 0309- inhabitants from all forms of hazards, especially if such hazards come from
07 is to be viewed in relation to the group of individuals similarly situated development activities that are supposed to be beneficial to everybody;
with respect to the avowed purpose. This gives rise to two classes, namely:
(1) the classification under Ordinance No. 0309-07 (legislative WHEREAS, pesticides are by its nature poisonous, it is all the more
classification); and (2) the classification based on purpose (elimination of dangerous when dispensed aerially through aircraft because of unstable
the mischief). The legislative classification found in Section 4 of the wind conditions which in turn makes aerial spray drifting to unintended
ordinance refers to "all agricultural entities" within Davao City. Meanwhile, targets a commonplace.
the classification based on the purpose of the ordinance cannot be easily
discerned because the ordinance does not make any express or implied WHEREAS, aerial spraying of pesticides is undeniably a nuisance.
reference to it. We have to search the voluminous records of this case to
divine the animus behind the action of the Sangguniang Panglungsod in WHEREAS, looking at the plight of the complainants and other stakeholders
prohibiting aerial spraying as an agricultural activity. The effort has led uS opposed to aerial spraying, the issue of aerial spraying of pesticides is in all
to the following proposed resolution of the Sangguniang fours a nuisance. Given the vastness of the reach of aerial spraying, the said
Panglungsod,134viz.: ChanRobles Virtualawl ibra ry form of dispensation falls into the category of a public nuisance. Public
RESOLUTION NO. ____ nuisance is defined by the New Civil Code as one which affects a community
Series of 2007 or neighborhood or any considerable number of persons, although the
extent of the annoyance, danger or damage upon individuals may be
A RESOLUTION TO ENACT AN ORDINANCE BANNING AERIAL SPRAYING AS unequal.
AN AGRICULTURAL PRACTICE IN ALL AGRICULTURAL ENTITIES IN DAVAO
CITY WHEREAS, the General Welfare Clause of the Local Government Code
empowers Local Government Units to enact ordinances that provide for the
WHEREAS, the City of Davao, with fertile lands and ideal climactic condition, health and safety, promote the comfort and convenience of the City and the
hosts various large farms planted with different crops; inhabitants thereof.

WHEREAS, these farms, lay adjacent to other agricultural businesses and NOW THEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, that
that residential areas abuts these farm boundaries; for the health, safety and peace of mind of all the inhabitants of Davao City,
let an ordinance be enacted banning aerial spraying as an agricultural
WHEREAS, aerial spraying as a mode of applying chemical substances such practice in all agricultural entities in Davao City.
as fungicides and pesticides is being used by investors/companies over large
agricultural plantations in Davao City; xxxx
The proposed resolution identified aerial spraying of pesticides as a nuisance
WHEREAS, the Davao City watersheds and ground water sources, located because of the unstable wind direction during the aerial application, which
within and adjacent to Mount Apo may be affected by the aerial spraying of (1) could potentially contaminate the Davao City watersheds and ground
chemical substances on the agricultural farms and plantations therein; water sources; (2) was detrimental to the health of Davao City residents,
most especially those living in the. nearby plantations; and (3) posed a
WHEREAS, the effects of aerial spraying are found to be detrimental to the hazard to animals and other crops. Plainly, the mischief that the prohibition
health of the residents of Davao City most especially the inhabitants nearby sought to address was the fungicide drift resulting from the aerial
agricultural plantations practicing aerials spraying; application; hence, the classification based on the intent of the proposed
ordinance covered all agricultural entities conducting aerial spraying of
WHEREAS, the unstable wind direction during the conduct of aerial spray fungicides that caused drift.
The assailed ordinance thus becomes riddled with several distinction issues. adjustmen
A brief discussion on the occurrence of the drift that the ordinance seeks to
t
address is necessary.
Canopy
Pesticide treatment is based on the use of different methods of application
and equipment,135 the choice of which methods depend largely on the
objective of distributing the correct dose to a defined target with the Boom
minimum of wastage due to "drift."136 The term "drift" refers to the length
movement of airborne spray droplets, vapors, or dust particles away from
the target area during pesticide application.137 Inevitably, any method of
application causes drift, which may either be primary or secondary. As Tank mix
fittingly described by scholars:138
Primary drift is the off-site movement of spray droplets at, or very close to,
physical
the time of application. For example, a field application using a boom in a properties
gusty wind situation could easily lead to a primary drift. Primary spray drift
is not product specific, and the active ingredients do not differ in their Source: F.M. Fishel and J.A. Ferrell, "Managing Pesticide Drift," available
potential to drift. However, the type of formulation, surfactant, or other at http://edis.ifas.edu/pi232. citing Pesticide Notes, MSU Extension.
adjuvant may affect spray drift potential.
The four most common pesticide treatment methods adopted in Davao City
Secondary drift is associated with pesticide vapor. Pesticide vapor drift is the are aerial, truck-mounted boom, truck-mounted mechanical, and manual
movement of the gas that forms when an active ingredient evaporates from spraying.140 However, Ordinance No. 0309-07 imposes the prohibition only
plants, soil, or other surfaces. And while vapor drift is an important issue, it against aerial spraying.
only pertains to certain volatile products. Vapor drift and other forms
of secondary drift are product specific. Water-based sprays will volatize Davao City justifies the prohibition against aerial spraying by insisting that
more quickly than oil-based sprays. However, oil-based sprays can drift the occurrence of drift causes inconvenience and harm to the residents and
farther, especially above 95°F, because they are lighter. degrades the environment. Given this justification, does the ordinance
Understandably, aerial drift occurs using any method of application, be it satisfy the requirement that the classification must rest on substantial
through airplanes, ground sprayers, airblast sprayers or irrigation distinction?
systems.139 Several factors contribute to the occurrence of drift depending
on the method of application, viz.:ChanRobles Vi rtua lawlib rary
We answer in the negative.

AIRBLAS GROUN CHEMIGATIO The occurrence of pesticide drift is not limited to aerial spraying but results
AERIAL from the conduct of any mode of pesticide application. Even manual
T D N spraying or truck-mounted boom spraying produces drift that may bring
about the same inconvenience, discomfort and alleged health risks to the
community and to the environment.141 A ban against aerial spraying does
Droplet Crop Droplet Application not weed out the harm that the ordinance seeks to achieve.142 In the
size canopy size height process, the ordinance suffers from being "underinclusive" because the
classification does not include all individuals tainted with the same mischief
that the law seeks to eliminate.143 A classification that is drastically
Applicatio Droplet Boom
Wind speed underinclusive with respect to the purpose or end appears as an irrational
n height size height means to the legislative end because it poorly serves the intended purpose
of the law.144chanrobleslaw

Wind Wind Wind The claim that aerial spraying produces more aerial drift cannot likewise be
speed speed speed sustained in view of the petitioners' failure to substantiate the same. The
respondents have refuted this claim, and have maintained that on the
contrary, manual spraying produces more drift than aerial treatment145 As
Swath such, the decision of prohibiting only aerial spraying is tainted with
arbitrariness.

Aside from its being underinclusive, the assailed ordinance also tends to be
"overinclusive" because its .impending implementation will affect groups
that have no relation to the accomplishment of the legislative purpose. Its
implementation will unnecessarily impose a burden on a wider range of
individuals than those included in the intended class based on the purpose
of the law.146
It can be noted that the imposition of the ban is too broad because the
ordinance applies irrespective of the substance to be aerially applied and
irrespective of the agricultural activity to be conducted. The respondents
admit that they aerially treat their plantations not only with pesticides but
also vitamins and other substances. The imposition of the ban against aerial
spraying of substances other than fungicides and regardless of the
agricultural activity being performed becomes unreasonable inasmuch as it
patently bears no relation to the purported inconvenience, discomfort,
health risk and environmental danger which the ordinance, seeks to
address. The burden now will become more onerous to various entities
including the respondents and even others with no connection whatsoever to
the intended purpose of the ordinance.
In this respect, the CA correctly observed: ChanRoblesVi rtualaw lib rary
Ordinance No. 0309-07 defines "aerial spraying" as the "application of
substances through the use of aircraft of any form which dispenses the
substances in the air." Inevitably, the ban imposed therein encompasses
aerial application of practically all substances, not only pesticides or
fungicides but including water and all forms of chemicals, regardless of its
elements, composition, or degree of safety.
Going along with respondent-appellee's ratiocination that the prohibition in
the Ordinance refers to aerial spraying as a method of spraying pesticides or
fungicides, there appears to be a need to single out pesticides or fungicides
in imposing such a ban because there is a striking distinction between such
chemicals and other substances (including water), particularly with respect
to its safety implications to the public welfare and ecology.
x x
We are, therefore, convinced that the total ban on aerial spraying runs afoul
with the equal protection clause because it does not classify which
substances are prohibited from being applied aerially even as reasonable
distinctions should be made in terms of the hazards, safety or beneficial
effects of liquid substances to the public health, livelihood and the
environment.147chanroblesvi rtual lawlib rary
We clarify that the CA did not thereby apply the strict scrutiny approach but
only evaluated the classification established by the ordinance in relation to
the purpose. This is the essence of the rational basis approach.
The petitioners should be made aware that the rational basis scrutiny is not
based on a simple means-purpose correlation; nor does the rational basis
scrutiny automatically result in a presumption of validity of the ordinance or
deference to the wisdom of the local legislature.148 To reiterate, aside from
ascertaining that the means and purpose of the ordinance are reasonably
related, the classification should be based on a substantial distinction.
However, we do not subscribe to the respondents' position that there must
be a distinction based on the level of concentration or the classification
chanrobleslaw imposed by the FPA on pesticides. This strenuous requirement cannot be
expected from a local government unit that should only be concerned with
general policies in local administration and should not be restricted by
technical concerns that are best left to agencies vested with the appropriate
special competencies. The disregard of the pesticide classification is not an
equal protection issue but is more relevant in another aspect of delegated
police power that we consider to be more appropriate in a later discussion.
The overinclusiveness of Ordinance No. 0309-07 may also be traced to its
Section 6 by virtue of its requirement for the maintenance of the 30- meter
buffer zone. This requirement applies regardless of the area of the
agricultural landholding, geographical location, topography, crops grown and
other distinguishing characteristics that ideally should bear a reasonable
relation to the evil sought to be avoided. As earlier discussed, only large
banana plantations could rely on aerial technology because of the financial
capital required therefor.
The establishment and maintenance of the buffer zone will become more
burdensome to the small agricultural landholders because: (1) they have to
reserve the 30-meter belt surrounding their property; (2) that will have to
be identified through GPS; (3) the metes and bounds of the buffer zone will
have to be plotted in a survey plan for submission to the local government
unit; and (4) will be limited as to the crops that may be cultivated therein
based on the mandate that the zone shall be devoted to "diversified trees"
taller than what are being grown therein.149 The arbitrariness of Section 6 all
the more becomes evident when the land is presently devoted to the
cultivation of root crops and vegetables, and trees or plants slightly taller
than the root crops and vegetables are then to be planted. It is seriously to
be doubted whether such circumstance will prevent the occurrence of the
drift to the nearby residential areas.
x x
Section 6 also subjects to the 30-meter buffer zone requirement agricultural
entities engaging in organic farming, and' do not contribute to the
occurrence of pesticide drift. The classification indisputably becomes
arbitrary and whimsical.
A substantially overinclusive or underinclusive classification tends to
undercut the governmental claim that the classification serves legitimate
political ends.150 Where overinclusiveness is the problem, the vice is that the
law has a greater discriminatory or burdensome effect than necessary.151 In
this light, we strike down Section 5 and Section 6 of Ordinance No. 0309-07
for carrying an invidious classification, and for thereby violating the Equal
Protection Clause.
The discriminatory nature of the ordinance can be seen from its policy as
stated in its Section 2, to wit:
ChanRoblesVirt ualawli bra ry
Section 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to
eliminate the method of aerial spraying as an agricultural practice in all
agricultural activities by all entities within Davao City.
Evidently, the ordinance discriminates against large farmholdings that are
the only ideal venues for the investment of machineries and equipment
capable of aerial spraying. It effectively denies the affected individuals the
technology aimed at efficient and cost-effective operations and cultivation
not only of banana but of other crops as well. The prohibition against aerial
spraying will seriously hamper the operations of the banana plantations that
depend on aerial technology to arrest the spread of the Black Sigatoka
disease and other menaces that threaten their production and harvest. As
earlier shown, the effect of the ban will not be limited to Davao City in view
of the significant contribution of banana export trading to the country's
economy.
The discriminatory character of the ordinance makes it oppressive and
unreasonable in light of the existence and availability of more permissible
and practical alternatives that will not overburden the respondents and
those dependent on their operations as well as those who stand to be
affected by the ordinance. In the view of Regional Director Roger C. Chio of
DA Regional Field Unit XI, the alleged harm caused by aerial spraying may
be addressed by following the GAP that the DA has been promoting among
plantation operators. He explained his view thusly: ChanRoblesVirtualawl ibra ry
The allegation that aerial spraying is hazardous to animal and human being
remains an allegation and assumptions until otherwise scientifically proven
by concerned authorities and agencies. This issue can be addressed by
following Good Agricultural Practices, which DA is promoting among fruit
and vegetable growers/plantations. Any method of agri-chemical application
whether aerial or non-aerial if not properly done in accordance with
established procedures and code of good agricultural practices and if the
chemical applicators and or handlers lack of necessary competency,
certainly it could be hazardous. For the assurance that commercial
applicators/aerial applicators possessed the competency and responsibility
of handling agri-chemical, such applicators are required under Article III,
Paragraph 2 of FPA Rules and Regulation No. 1 to secure license from FPA.
Furthermore users and applicators of agri-chemicals are also guided by
Section 6 Paragraph 2 and 3 under column of Pesticides and Other
agricultural Chemicals of PD 11445 which stated: "FPA shall establish and
enforce tolerance levels and good agricultural practices in raw agricultural
commodities; to restrict or ban the use of any chemical or the formulation of
certain pesticides in specific areas or during certain period upon evidence
that the pesticide is eminent [sic] hazards has caused, or is causing
widespread serious damage to crops, fish, livestock or to public health and
environment."
Besides the aforecited policy, rules and regulation enforced by DA, there are
other laws and regulations protecting and preserving the environment. If
the implementation and monitoring of all these laws and regulation are
closely coordinated with concerned LGUs, Gas and NGAs and other private
sectors, perhaps we can maintain a sound and health environment x x
x.152 chanroblesv irtuallaw lib rary
Indeed, based on the Summary Report on the Assessment and Factfinding
Activities on the Issue of Aerial Spraying in Banana Plantations,153 submitted
by the fact-finding team organized by Davao City, only three out of the 13
barangays consulted by the fact-finding team opposed the conduct of aerial
spraying; and of the three barangays, aerial spraying was conducted only in
Barangay Subasta. In fact, the fact-finding team found that the residents in
those barangays were generally in favor of the operations of the banana
plantations, and did not oppose the conduct of aerial spraying.
IV
The Precautionary Principle still requires scientific basis
The petitioners finally plead that the Court should look at the merits of the
ordinance based on the precautionary principle. They argue that under the
precautionary principle, the City of Davao is justified in enacting Ordinance
No. 0309-07 in order to prevent harm to the environment and human health
despite the lack of scientific certainty.
The petitioners' plea and argument cannot be sustained.
The principle of precaution originated as a social planning principle in
Germany. In the 1980s, the Federal Republic of Germany used
the Vorsogeprinzip ("foresight principle") to justify the implementation of
vigorous policies to tackle acid rain, global warming and pollution of the
North Sea.154 It has since emerged from a need to protect humans and the
environment from increasingly unpredictable, uncertain, and unquantifiable
but possibly catastrophic risks such as those associated with Genetically
Modified Organisms and climate change,155 among others. The oft-cited
Principle 15 of the 1992 Rio Declaration on Environment and Development
(1992 Rio Agenda), first embodied this principle, as follows: ChanRoblesVirt ualawli bra ry
Principle 15
In order to protect the environment, the precautionary approach shall be
widely applied by States according to their capabilities. Where there are
threats of serious or irreversible damage, lack of full scientific certainty shall
not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.
In this jurisdiction, the principle of precaution appearing in the Rules of
Procedure for Environmental Cases (A.M. No. 09-6-8-SC) involves matters
of evidence in cases where there is lack of full scientific certainty in
establishing a causal link between human activity and environmental
effect.156 In such an event, the courts may construe a set of facts as
warranting either judicial action or inaction with the goal of preserving and
protecting the environment.157 chanrobles law
It is notable, therefore, that the precautionary principle shall only be
relevant if there is concurrence of three elements, namely: uncertainty,
threat of environmental damage and serious or irreversible harm. In
situations where the threat is relatively certain, or that the causal link
between an action and environmental damage can be established, or the
probability of occurrence can be calculated, only preventive, not
precautionary measures, may be taken. Neither will the precautionary
principle apply if there is no indication of a threat of environmental harm; or
if the threatened harm is trivial or easily reversible.158
chanrobles law
We cannot see the presence of all the elements. To begin with, there has
been no scientific study. Although the precautionary principle allows lack of
full scientific certainty in establishing a connection between the serious or
irreversible harm and the human activity, its application is still premised on
empirical studies. Scientific analysis is still a necessary basis for effective
policy choices under the precautionary principle.159
chanrobleslaw
Precaution is a risk management principle invoked after scientific inquiry
takes place. This scientific stage is often considered synonympus with risk
assessment.160 As such, resort to the principle shall not be based on anxiety
or emotion, but from a rational decision rule, based in ethics.161 As much as
possible, a complete and objective scientific evaluation of the risk to the
environment or health should be conducted and made available to decision-
makers for them to choose the most appropriate course of
action.162 Furthermore, the positive and negative effects of an activity is also
important in the application of the principle. The potential harm resulting
from certain activities should always be judged in view of the potential
benefits they offer, while the positive and negative effects of potential
precautionary measures should be considered.163 chanrobles law
The only study conducted to validate the effects of aerial spraying appears
to be the Summary Report on the Assessment and Fact-Finding Activities on
the Issue of Aerial Spraying in Banana Plantations.164 Yet, the fact-finding
team that generated the report was not a scientific study that could justify
the resort to the .precautionary principle. In fact, the Sangguniang Bayan
ignored the findings and conclusions of the fact-finding team that
recommended only a regulation, not a ban, against aerial spraying. The
recommendation was in line with the advocacy of judicious handling and
application of chemical pesticides by the DOH-Center for Health
Development in the Davao Region in view of the scarcity of scientific studies
to support the ban against aerial spraying.165 chanrobleslaw
We should not apply the precautionary approach in sustaining the ban
against aerial spraying if little or nothing is known of the exact or potential
dangers that aerial spraying may bring to the health of the residents within
and near the plantations and to the integrity and balance of the
environment. It is dangerous to quickly presume that the effects of aerial
spraying would be adverse even in the absence of evidence. Accordingly, for
lack of scientific data supporting a ban on aerial spraying, Ordinance No.
0309-07 should be struck down for being unreasonable.
V of its constituents; and in United States v. Abendan,170 whereby the right of
Ordinance No. 0309-07 is an ultra vires act
The Court further holds that in addition to its unconstitutionality for carrying
an unwarranted classification that contravenes the Equal Protection Clause,
Ordinance No. 0309-07 suffers from another legal infirmity.
The petitioners represent that Ordinance No. 0309-07 is a valid exercise of
legislative and police powers by the Sangguniang Bayan of Davao City
pursuant to Section 458 in relation to Section 16 both of the Local
Government Code. The respondents counter that Davao City thereby
disregarded the regulations implemented by the Fertilizer and Pesticide
Authority (FPA), including its identification and classification of safe
pesticides and other agricultural chemicals.
We uphold the respondents.
An ordinance enjoys the presumption of validity on the basis that: ChanRoble sVi rt ualawlib ra ry
The action of the elected representatives of the people cannot be lightly set
aside. The councilors must, in the very nature of things, be familiar with the
necessities of their particular municipality and with all the facts and
circumstances which surround the subject, and necessities of their particular
municipality and with all the facts and circumstances which surround the
subject, and necessitate action. The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are essential to the
well-being of the people.166 chanroblesvi rtua llawli bra ry
Section 5(c) of the Local Government Code accords a liberal interpretation
to its general welfare provisions. The policy of liberal construction is
consistent with the spirit of local autonomy that endows local government
units with sufficient power and discretion to accelerate their economic
development and uplift the quality of life for their constituents.
Verily, the Court has championed the cause of public welfare on several
occasions. In so doing, it has accorded liberality to the general welfare
provisions of the Local Government Code by upholding the validity of local
ordinances enacted for the common good. For instance, in Social Justice
Society (SJS) v. Atienza, Jr.,167 the Court validated a zoning ordinance that
reclassified areas covered by a large oil depot from industrial to commercial
in order to ensure the life, health and property of the inhabitants residing
within the periphery of the oil depot. Another instance is Gancayco v. City
Government of Quezon City,168 where the Court declared as valid a city
ordinance ordering the construction of arcades that would ensure the health
and safety of the city and its inhabitants, improvement of their morals,
peace, good order, comfort and convenience, as well as the promotion of
their prosperity. Even in its early years, the Court already extended
liberality towards the exercise by the local government units; of their
legislative powers in order to promote the general welfare of their
communities. This was exemplified in United States v. Salaveria,169 wherein
gambling was characterized as "an act beyond the pale of good morals" that
the local legislative council could validly suppress to protect the well-being
the then Municipality of Cebu to enact an ordinance relating to sanitation
and public health was upheld.

The power to legislate under the General Welfare Clause is not meant to be
an invincible authority. In fact, Salaveria and Abendan emphasized the
reasonableness and consistency of the exercise by the local government
units with the laws or policies of the State.171 More importantly, because the
police power of the local government units flows from the express
delegation of the power by Congress, its exercise is to be construed in
strictissimi juris. Any doubt or ambiguity arising out of the terms used in
granting the power should be construed against the local legislative
units.172 Judicial scrutiny comes into play whenever the exercise of police
power affects life, liberty or property.173 The presumption of validity and the
policy of liberality are not restraints on the power of judicial review in the
face of questions about whether an ordinance conforms with the
Constitution, the laws or public policy, or if it is unreasonable, oppressive,
partial, discriminating or in derogation of a common right. The ordinance
must pass the test of constitutionality and the test of consistency with the
prevailing laws.174 chanroble slaw
Although the Local Government Code vests the municipal corporations with
sufficient power to govern themselves and manage their affairs and
activities, they definitely have no right to enact ordinances dissonant with
the State's laws and policy. The Local Government Code has been fashioned
to delineate the specific parameters and limitations to guide each local
government unit in exercising its delegated powers with the view of making
the local government unit a fully functioning subdivision of the State within
the constitutional and statutory restraints.175 The Local Government Code is
not intended to vest in the local government unit the blanket authority to
legislate upon any subject that it finds proper to legislate upon in the guise
of serving the common good.
The function of pesticides control, regulation and development is within the
jurisdiction of the FPA under Presidential Decree No. 1144.176 The FPA was
established in recognition of the need for a technically oriented government
entity177 that will protect the public from the risks inherent in the use of
pesticides.178 To perform its mandate, it was given under Section 6 of
Presidential Decree No. 1144 the following powers and functions with
respect to pesticides and other agricultural chemicals, viz.: ChanRoblesVi rtua lawlib rary
Section 6. Powers and functions. The FPA shall have jurisdiction, on over all
existing handlers of pesticides, fertilizers and other agricultural chemical
inputs. The FPA shall have the following powers and functions:
chanRoble svirtual Lawlib ra ry x x x x
III. Pesticides and Other Agricultural Chemicals
1. To determine specific uses or manners of use for each pesticide or
pesticide formulation;
2. To establish and enforce levels and good agricultural practices for use of
pesticides in raw agricultural commodities;
3. To restrict or ban the use of any pesticide or the formulation of certain
pesticides in specific areas or during certain periods upon evidence that the
pesticide is an imminent hazard, has caused, or is causing widespread
serious damage to crops, fish or livestock, or to public health and
environment;
x x x x
5. To inspect the establishment and premises of pesticide handlers to insure
that industrial health and safety rules and anti-pollution regulations are
followed;
6. To enter and inspect farmers' fields to ensure that only the recommended
pesticides are used in specific crops in accordance with good agricultural
practice;
x x x x (Emphasis supplied).
Evidently, the FPA was responsible for ensuring the compatibility between
the usage and the application of pesticides in agricultural activities and the
demands for human health and environmental safety. This responsibility
includes not only the identification of safe and unsafe pesticides, but also
the prescription of the safe modes of application in keeping with the
standard of good agricultural practices.
On the other hand, the enumerated devolved functions to the local
government units do not include the regulation and control of pesticides and
other agricultural chemicals.179 The non-inclusion should preclude the
Sangguniang Bayan of Davao City from enacting Ordinance No. 0309-07, for
otherwise it would be arrogating unto itself the authority to prohibit the
aerial application of pesticides in derogation of the authority expressly
vested in the FPA by Presidential Decree No. 1144.
In enacting Ordinance No. 0309-07 without the inherent and explicit
authority to do so, the City of Davao performed an ultra vires act. As a local
government unit, the City of Davao could act only as an agent of Congress,
and its every act should always conform to and reflect the will of its
principal.180 As clarified in Batangas CATV, Inc. v. Court of Appeals:181
[W]here the state legislature has made provision for the regulation of
conduct, it has manifested its intention that the subject matter shall be fully
covered by the statute, and that a municipality, under its general powers,
cannot regulate the same conduct. In Keller vs. State, it was held that:
"Where there is no express power in the charter of a municipality
authorizing it to adopt ordinances regulating certain matters which are
specifically covered by a general statute, a municipal ordinance, insofar as it
attempts to regulate the subject which is completely covered by a general
statute of the legislature, may be rendered invalid. x x x Where the subject
is of statewide concern, and the legislature has appropriated the field and
declared the rule, its declaration is binding throughout the State." A reason
advanced for this view is that such ordinances are in excess of the powers
granted to the municipal corporation.
Since E.O. No. 205, a general law, mandates that the regulation of CATV meter buffer zone to be planted with diversified trees.195 chanroble slaw

operations shall be exercised by the NTC, an LGU cannot enact an ordinance

or approve a resolution in violation of the said law. Devoid of the specific delegation to its local legislative body, the City of
Davao exceeded its delegated authority to enact Ordinance No. 0309-07.
It is a fundamental principle that municipal ordinances are inferior in status Hence, Ordinance No. 0309-07 must be struck down also for being an ultra
and subordinate to the laws of the state. An ordinance in conflict with a vires act on the part of the Sangguniang Bayan of Davao City.
state law of general character and statewide application is universally held
to be invalid. The principle is frequently expressed in the declaration that We must emphasize that our ruling herein does not seek to deprive the
municipal authorities, under a general grant of power, cannot adopt LGUs their right to regulate activities within their jurisdiction. They are
ordinances which infringe the spirit of a state law or repugnant to the empowered under Section 16 of the Local Government Code to promote the
general policy of the state. In every power to pass ordinances given to a general welfare of the people through regulatory, not prohibitive, ordinances
municipality, there is an implied restriction that the ordinances shall be that conform with the policy directions of the National Government.
consistent with the general law.182 (Emphasis ours) Ordinance No. 0309-07 failed to pass this test as it contravenes the specific
For sure, every local government unit only derives its legislative authority regulatory policy on aerial spraying in banana plantations on a nationwide
from Congress. In no instance can the local government unit rise above its scale of the National Government, through the FPA.
source of authority. As such, its ordinance cannot run against or contravene
existing laws, precisely because its authority is only by virtue of the valid Finally, the unconstitutionality of the ban renders nugatory Ordinance No.
delegation from Congress. As emphasized in City of Manila v. Laguio, Jr.:183 0309-07 in its entirety. Consequently, any discussion on the lack of the
The requirement that the enactment must not violate existing law gives separability clause becomes entirely irrelevant.
stress to the precept that local government units are able to legislate only
by virtue of their derivative legislative power, a delegation of legislative WHEREFORE, the Court DENIES the consolidated petitions for review
power from the national legislature. The delegate cannot be superior to the on certiorari for their lack of merit; AFFIRMS the decision promulgated on
principal or exercise powers higher than those of the latter. January 9, 2009 in C.A.-G.R. CV No. 01389-MIN. declaring Ordinance No.
0309-07 UNCONSTITUTIONAL; PERMANENTLY ENJOINS respondent
This relationship between the national legislature and the local government City of Davao, and all persons or entities acting in its behalf or under its
units has not been enfeebled by the new provisions in the Constitution authority, from enforcing and implementing Ordinance No. 0309-07;
strengthening the policy of local autonomy. The national legislature is still and ORDERS the petitioners to pay the costs of suit.
the principal of the local government units, which cannot defy its will or
modify or violate it.184
chanroblesv irt uallawl ibra ry SO ORDERED. chanRoblesvirt ualLaw lib rary

Moreover, Ordinance No. 0309-07 proposes to prohibit an activity already

covered by the jurisdiction of the FPA, which has issued its own regulations
under its Memorandum Circular No. 02, Series of 2009, entitled Good
.
Agricultural Practices for Aerial Spraying of Fungicide in Banana
Plantations.185 While Ordinance No. 0309-07 prohibits aerial spraying in G.R. No. 210551 June 30, 2015
banana plantations within the City of Davao, Memorandum Circular No. 02
seeks to regulate the conduct of aerial spraying in banana
plantations186 pursuant to Section 6, Presidential Decree No. 1144, and in JOSE J. FERRER, JR., Petitioner,
conformity with the standard of Good Agricultural Practices (GAP). vs.
Memorandum Circular No. 02 covers safety procedures,187 handling188 and CITY MAYOR HERBERT BAUTISTA, CITY COUNCIL OF
post-application,189 including the qualifications of applicators,190 storing of
fungicides,191 safety and equipment of plantation personnel,192 all of which QUEZON CITY, CITY TREASURER OF QUEZON CITY, and
are incompatible with the prohibition against aerial spraying under CITY ASSESSOR OF QUEZON CITY, Respondents.
Ordinance No. 0309-07.

Although Memorandum Circular No. 02 and Ordinance No. 0309-07 both

DECISION
require the maintenance of the buffer zone, they differ as to their treatment
and maintenance of the buffer zone. Under Memorandum Circular No. 02, a PERALTA, J.:
50-meter "no-spray boundary" buffer zone should be observed by the spray
pilots,193 and the observance of the zone should be recorded in the Aerial
Spray Final Report (ASFR) as a post-application safety measure.194 On the Before this Court is a petition for certiorari under Rule 65 of the
other hand, Ordinance No. 0309-07 requires the maintenance of the 30- Rules of Court with prayer for the issuance of a temporary
restraining order (TRO) seeking to declare unconstitutional and The tax credit to be granted shall be equivalent to the total amount
illegal Ordinance Nos. SP-2095, S-2011 and SP-2235, S-2013 on of the special assessment paid by the property owner, which shall
the Socialized Housing Tax and Garbage Fee, respectively, which be given as follows:
are being imposed by the respondents.
1. 6th year - 20%
The Case
2. 7th year - 20%
On October 17, 2011,1 respondent Quezon City Council enacted
Ordinance No. SP-2095, S-2011,2 or the Socialized Housing Tax 3. 8th year - 20%
of Quezon City, Section 3 of which provides:
4. 9th year - 20%
SECTION 3. IMPOSITION. A special assessment equivalent to
one-half percent (0.5%) on the assessed value of land in excess of 5. 10th year - 20%
One Hundred Thousand Pesos (Php100,000.00) shall be collected
by the City Treasurer which shall accrue to the Socialized Housing
Furthermore, only the registered owners may avail of the tax credit
Programs of the Quezon City Government. The special
and may not be continued by the subsequent property owners
assessment shall accrue to the General Fund under a special
even if they are buyers in good faith, heirs or possessor of a right
account to be established for the purpose.
in whatever legal capacity over the subject property.4
Effective for five (5) years, the Socialized Housing Tax ( SHT )
On the other hand, Ordinance No. SP-2235, S-20135 was enacted
shall be utilized by the Quezon City Government for the following
on December 16, 2013 and took effect ten days after when it was
projects: (a) land purchase/land banking; (b) improvement of
approved by respondent City Mayor.6 The proceeds collected from
current/existing socialized housing facilities; (c) land development;
the garbage fees on residential properties shall be deposited
(d) construction of core houses, sanitary cores, medium-rise
solely and exclusively in an earmarked special account under the
buildings and other similar structures; and (e) financing of public-
general fund to be utilized for garbage collections.7 Section 1 of the
private partners hip agreement of the Quezon City Government
Ordinance se t forth the schedule and manner for the collection of
and National Housing Authority ( NHA ) with the private sector.3
garbage fees:
Under certain conditions, a tax credit shall be enjoyed by
SECTION 1. The City Government of Quezon City in conformity
taxpayers regularly paying the special assessment:
with and in relation to Republic Act No. 7160, otherwise known as
the Local Government Code of 1991 HEREBY IMPOSES THE
SECTION 7. TAX CREDIT. Taxpayers dutifully paying the special FOLLOWING SCHEDULE AND MANNER FOR THE ANNUAL
assessment tax as imposed by this ordinance shall enjoy a tax COLLECTION OF GARBAGE FEES, AS FOLLOWS: On all
credit. The tax credit may be availed of only after five (5) years of domestic households in Quezon City;
continue[d] payment. Further, the taxpayer availing this tax credit
must be a taxpayer in good standing as certified by the City
Treasurer and City Assessor. LAND AREA IMPOSABLE FEE
Less than 200 sq. m. PHP 100.00
201 sq. m. – 500 sq. m. PHP 200.00
 501 sq. m. – 1,000 sq. m. PHP 300.00 case a household owner refuses to pay, a penalty of 25% of the
garbage fee due, plus an interest of 2% per month or a fraction
1,001 sq. m. – 1,500 sq. m. PHP 400.00 thereof, shall be charged.9
1,501 sq. m. – 2,000 sq. m. or PHP 500.00
more Petitioner alleges that he is a registered co-owner of a 371-
square-meter residential property in Quezon City which is covered
by Transfer Certificate of Title (TCT ) No. 216288, and that, on
January 7, 2014, he paid his realty tax which already included the
garbage fee in the sum of
On all condominium unit and socialized housing projects/units in
Quezon City; Php100.00.10

FLOOR AREA IMPOSABLE FEE
Less than 40 sq. m. PHP 25.00
41 sq. m. – 60 sq. m. PHP 50.00
61 sq. m. – 100 sq. m. PHP 75.00
101 sq. m. – 150 sq. m. PHP 100.00
151 sq. m. – 200 sq. [m.] or more PHP 200.00
On high-rise Condominium Units
a) High-rise Condominium – The Homeowners Association
of high- rise condominiums shall pay the annual garbage
fee on the total size of the entire condominium and
socialized Housing Unit and an additional garbage fee
shall be collected based on area occupied for every unit
already so ld or being amortized.
b) High-rise apartment units – Owners of high-rise
apartment units shall pay the annual garbage fee on the
total lot size of the entire apartment and an additional
garbage fee based on the schedule prescribed herein for
every unit occupied.
The collection of the garbage fee shall accrue on the first day of
January and shall be paid simultaneously with the payment of the
real property tax, but not later than the first quarter installment.8 In
The instant petition was filed on January 17, 2014. We issued a
TRO on February 5, 2014, which enjoined the enforcement of
Ordinance Nos. SP-2095 and SP-2235 and required respondents
to comment on the petition without necessarily giving due course
thereto.11
Respondents filed their Comment12 with urgent motion to dissolve
the TRO on February 17, 2014. Thereafter, petitioner filed a Reply
and a Memorandum on March 3, 2014 and September 8, 2014,
respectively.
Procedural Matters
A. Propriety of a Petition for Certiorari
Respondents are of the view that this petition for certiorari is
improper since they are not tribunals, boards or officers exercising
judicial or quasi-judicial functions. Petitioner, however, counters
that in enacting Ordinance Nos. SP-2095 and SP-2235, the
Quezon City Council exercised quasi-judicial function because the
ordinances ruled against the property owners who must pay the
SHT and the garbage fee, exacting from them funds for basic
essential public services that they should not be held liable. Even
if a Rule 65 petition is improper, petitioner still asserts that this
Court, in a number of cases like in Rosario v. Court of
Appeals,13 has taken cognizance of an improper remedy in the
interest of justice.
We agree that respondents neither acted in any judicial or quasi-
judicial capacity nor arrogated unto themselves any judicial or
quasi-judicial prerogatives.
A respondent is said to be exercising judicial function where he
has the power to determine what the law is and what the legal
rights of the parties are, and then undertakes to determine these
questions and adjudicate upon the rights of the parties.
Quasi-judicial function, on the other hand, is "a term which applies
to the actions, discretion, etc., of public administrative officers or
bodies … required to investigate facts or ascertain the existence of
facts, hold hearings, and draw conclusions from them as a basis
for their official action and to exercise discretion of a judicial
nature."
Before a tribunal, board, or officer may exercise judicial or quasi-
judicial acts, it is necessary that there be a law that gives rise to
some specific rights of person s or property under which adverse
claims to such rights are made, and the controversy en suing
therefrom is brought before a tribunal, board, or officer clothed with
power and authority to determine the law and adjudicate the
respective rights of the contending parties.14
For a writ of certiorari to issue, the following requisites must
concur: (1) it must be directed against a tribunal, board, or officer
exercising judicial or quasi-judicial functions; (2) the tribunal,
board, or officer must have acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction; and (3) there is no appeal or any plain,
speedy, and adequate remedy in the ordinary course of law. The
enactment by the Quezon City Council of the assailed ordinances
was done in the exercise of its legislative, not judicial or quasi-
judicial, function. Under Republic Act (R.A.) No.7160, or the Local
Government Code of 1991 (LGC), local legislative power shall be
exercised by the Sangguniang Panlungsod for the city.15Said law
likewise is specific in providing that the power to impose a tax, fee,
or charge , or to generate revenue shall be exercised by the
sanggunian of the local government unit concerned through an
appropriate ordinance.16
Also, although the instant petition is styled as a petition for
certiorari, it essentially seeks to declare the unconstitutionality and
illegality of the questioned ordinances. It, thus, partakes of the
nature of a petition for declaratory relief, over which this Court has
only appellate, not original, jurisdiction.17
Despite these, a petition for declaratory relief may be treated as
one for prohibition or mandamus, over which we exercise original
jurisdiction, in cases with far-reaching implications or one which
raises transcendental issues or questions that need to be resolved
for the public good.18The judicial policy is that this Court will
entertain direct resort to it when the redress sought cannot be
obtained in the proper courts or when exceptional and compelling
circumstances warrant availment of a remedy within and calling for
the exercise of Our primary jurisdiction.19
Section 2, Rule 65 of the Rules of Court lay down under what
circumstances a petition for prohibition may be filed:
SEC. 2. Petition for prohibition. - When the proceedings of any
tribunal, corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, are without or in
excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal
or any other plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the respondent to
desist from further proceeding in the action or matter specified
therein, or otherwise granting such incidental reliefs as law and
justice may require.
In a petition for prohibition against any tribunal, corporation, board,
or person – whether exercising judicial, quasi-judicial, or ministerial
functions – who has acted without or in excess of jurisdiction or
with grave abuse of discretion, the petitioner prays that judgment
be rendered, commanding the respondents to desist from further
proceeding in the action or matter specified in the petition. In this
case, petitioner's primary intention is to prevent respondents from
implementing Ordinance Nos. SP-2095 and SP-2235. Obviously,
the writ being sought is in the nature of a prohibition, commanding
desistance.
We consider that respondents City Mayor, City Treasurer, and City
Assessor are performing ministerial functions. A ministerial
function is one that an officer or tribunal performs in the context of
a given set of facts, in a prescribed manner and without regard for
the exercise of his or its own judgment, upon the propriety or
impropriety of the act done.20 Respondent Mayor, as chief
executive of the city government, exercises such powers and
performs such duties and functions as provided for by the LGC
and other laws.21 Particularly, he has the duty to ensure that all
taxes and other revenues of the city are collected, and that city
funds are applied to the payment of expenses and settlement of
obligations of the city, in accordance with law or ordinance.22 On
the other hand, under the LGC, all local taxes, fees, and charges
shall be collected by the provincial, city, municipal, or barangay
treasurer, or their duly-authorized deputies, while the assessor
shall take charge, among others, of ensuring that all laws and
policies governing the appraisal and assessment of real properties
for taxation purposes are properly executed.23 Anent the SHT, the
Department of Finance (DOF) Local Finance Circular No. 1-97,
dated April 16, 1997, is more specific:
6.3 The Assessor’s office of the Identified LGU
shall:
a. immediately undertake an inventory of
lands within its jurisdiction which shall be
subject to the levy of the Social Housing
Tax (SHT) by the local sanggunian
concerned;
b. inform the affected registered owners of
the effectivity of the SHT; a list of the lands
and registered owners shall also be posted
in 3 conspicuous places in the
city/municipality;
c. furnish the Treasurer’s office and the
local sanggunian concerned of the list of
lands affected;
6.4 The Treasurer’s office shall:
a. collect the Social Housing Tax on top of
the Real Property Tax, SEF Tax and other
special assessments;
b. report to the DOF, thru the Bureau of
Local Government Finance, and the
Mayor’s office the monthly collections on
Social Housing Tax (SHT). An annual
report should likewise be submitted to the
HUDCC on the total revenues raised
during the year pursuant to Sec. 43, R.A.
7279 and the manner in which the same
was disbursed.
Petitioner has adduced special and important reasons as to why
direct recourse to us should be allowed. Aside from presenting a
novel question of law, this case calls for immediate resolution
since the challenged ordinances adversely affect the property
interests of all paying constituents of Quezon City. As well, this
petition serves as a test case for the guidance of other local
government units (LGUs).Indeed, the petition at bar is of
transcendental importance warranting a relaxation of the doctrine
of hierarchy of courts. In Social Justice Society (SJS) Officers, et
al. v. Lim ,24the Court cited the case of Senator Jaworski v. Phil.
Amusement & Gaming Corp.,25 where We ratiocinated:
Granting arguendo that the present action cannot be properly
treated as a petition for prohibition, the transcendental importance
of the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at
bar . x x x This is in accordance with the well entrenched principle
that rules of procedure are not inflexible tools designed to hinder
or delay, but to facilitate and promote the administration of justice.
Their strict and rigid application, which would result in
technicalities that tend to frustrate, rather than promote substantial
justice, must always be eschewed.26
B. Locus Standi of Petitioner
Respondents challenge petitioner’s legal standing to file this case
on the ground that, in relation to Section 3 of Ordinance No. SP-
2095, petitioner failed to allege his ownership of a property that
has an assessed value of more than Php100,000.00 and, with
respect to Ordinance No. SP-2335, by what standing or
personality he filed the case to nullify the same. According to
respondents, the petition is not a class suit, and that, for not
having specifically alleged that petitioner filed the case as a
taxpayer, it could only be surmised whether he is a party-in-
interest who stands to be directly benefited or injured by the
judgment in this case.
It is a general rule that every action must be prosecuted or
defended in the name of the real party-in-interest, who stands to
be benefited or injured by the judgment in the suit, or the party
entitled to the avails of the suit.
Jurisprudence defines interest as "material interest, an interest in
issue and to be affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest. By
real interest is meant a present substantial interest, as
distinguished from a mere expectancy or a future, contingent,
subordinate, or consequential interest." "To qualify a person to be
a real party-in-interest in whose name an action must be
prosecuted, he must appear to be the present real owner of the
right sought to be enforced."27
"Legal standing" or locus standi calls for more than just a
generalized grievance.28 The concept has been define d as a
personal and substantial interest in the case such that the party
has sustained or will sustain direct injury as a result of the
government al act that is being challenged.29 The gist of the
question of standing 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.30
A party challenging the constitutionality of a law, act, or statute
must show "not only that the law is invalid, but also that he has
sustained or is in immediate, or imminent danger of sustaining
some direct injury as a result of its enforcement, and not merely
that he suffers thereby in some indefinite way." It must be shown
that he has been, or is about to be, denied some right or privilege
to which he is lawfully entitled, or that he is about to be subjected
to some burdens or penalties by reason of the statute complained
of.31
Tested by the foregoing, petitioner in this case clearly has legal
standing to file the petition. He is a real party-in-interest to assail
the constitutionality and legality of Ordinance Nos. SP-2095 and
SP-2235 because respondents did not dispute that he is a
registered co-owner of a residential property in Quezon City an d
that he paid property tax which already included the SHT and the
garbage fee. He has substantial right to seek a refund of the
payments he made and to stop future imposition. While he is a
lone petitioner, his cause of action to declare the validity of the
subject ordinances is substantial and of paramount interest to
similarly situated property owners in Quezon City.
C. Litis Pendentia
Respondents move for the dismissal of this petition on the ground
of litis pendentia. They claim that, as early as February 22, 2012, a
case entitled Alliance of Quezon City Homeowners, Inc., et al., v.
Hon. Herbert Bautista, et al. , docketed as Civil Case No. Q-12- 7-
820, has been pending in the Quezon City Regional Trial Court,
Branch 104, which assails the legality of Ordinance No. SP-2095.
Relying on City of Makati, et al. v. Municipality (now City) of
Taguig, et al.,32 respondents assert that there is substantial identity
of parties between the two cases because petitioner herein and
plaintiffs in the civil case filed their respective cases as taxpayers
of Quezon City.
For petitioner, however, respondents’ contention is untenable
since he is not a party in Alliance and does not even have the
remotest identity or association with the plaintiffs in said civil case.
Moreover, respondents’ arguments would deprive this Court of its
jurisdiction to determine the constitutionality of laws under Section
5, Article VIII of the 1987 Constitution.33
Litis pendentia is a Latin term which literally means "a pending
suit" and is variously referred to in some decisions as lis pendens
and auter action pendant.34 While it is normally connected with the
control which the court has on a property involved in a suit during
the continuance proceedings, it is more interposed as a ground for
the dismissal of a civil action pending in court.35 In Film
Development Council of the Philippines v. SM Prime Holdings,
Inc.,36 We elucidated:
Litis pendentia, as a ground for the dismissal of a civil action,
refers to a situation where two actions are pending between the
same parties for the same cause of action, so that one of them
becomes unnecessary and vexatious. It is based on the policy
against multiplicity of suit and authorizes a court to dismiss a case
motu proprio.
xxxx
The requisites in order that an action may be dismissed on the
ground of litis pendentia are: (a) the identity of parties, or at least
such as representing the same interest in both actions; (b) the
identity of rights asserted and relief prayed for, the relief being
founded on the same facts, and (c) the identity of the two cases
such that judgment in one, regardless of which party is successful,
would amount to res judicata in the other.
The underlying principle of litis pendentia is the theory that a party
is not allowed to vex another more than once regarding the same
subject matter and for the same cause of action. This theory is
founded on the public policy that the same subject matter should
not be the subject of controversy in courts more than once, in
order that possible conflicting judgments may be avoided for the
sake of the stability of the rights and status of persons, and also to
avoid the costs and expenses incident to numerous suits.
Among the several tests resorted to in ascertaining whether two
suits relate to a single or common cause of action are: (1) whether
the same evidence would support and sustain both the first and
second causes of action; and (2) whether the defenses in one
case may be used to substantiate the complaint in the other.
The determination of whether there is an identity of causes of
action for purposes of litis pendentia is inextricably linked with that
of res judicata , each constituting an element of the other. In either
case, both relate to the sound practice of including, in a single
litigation, the disposition of all issues relating to a cause of action
that is before a court.37
There is substantial identity of the parties when there is a
community of interest between a party in the first case and a party
in the second case albeit the latter was not impleaded in the first
case.38 Moreover, the fact that the positions of the parties are
reversed, i.e., the plaintiffs in the first case are the defendants in
the second case or vice-versa, does not negate the identity of
parties for purposes of determining whether the case is dismissible
on the ground of litis pendentia .39
In this case, it is notable that respondents failed to attach any
pleading connected with the alleged civil case pending before the
Quezon City trial court. Granting that there is substantial identity
1âwphi1
of parties between said case and this petition, dismissal on the
ground of litis pendentia still cannot be had in view of the absence
of the second and third requisites. There is no way for us to
determine whether both cases are based on the same set of facts
that require the presentation of the same evidence. Even if
founded on the same set of facts, the rights asserted and reliefs
prayed for could be different. Moreover, there is no basis to rule
that the two cases are intimately related and/or intertwined with
one another such that the judgment that may be rendered in one,
regardless of which party would be successful, would amount to
res judicata in the other.
D. Failure to Exhaust Administrative Remedies
Respondents contend that petitioner failed to exhaust
administrative remedies for his non-compliance with Section 187
of the LGC, which mandates:
Section 187. Procedure for Approval and Effectivity of Tax
Ordinances and Revenue Measures; Mandatory Public Hearings.
– The procedure for approval of local tax ordinances and revenue
measures shall be in accordance with the provisions of this Code:
Provided, That public hearings shall be conducted for the purpose
prior to the enactment thereof: Provided, further, That any
question on the constitutionality or legality of tax ordinances or
revenue measures may be raised on appeal within thirty (30) days
from the effectivity thereof to the Secretary of Justice who shall
render a decision within sixty (60) days from the date of receipt of
the appeal: Provided, however, That such appeal shall not have
the effect of suspending the effectivity of the ordinance and the
accrual and payment of the tax, fee, or charge levied therein:
Provided, finally, That within thirty (30) days after receipt of the
decision or the lapse of the sixty-day period without the Secretary
of Justice acting upon the appeal, the aggrieved party may file
appropriate proceedings with a court of competent jurisdiction.
The provision, the constitutionality of which was sustained in Drilon
v. Lim ,40 has been construed as mandatory41 considering that –
A municipal tax ordinance empowers a local government unit to
impose taxes. The power to tax is the most effective instrument to
raise needed revenues to finance and support the myriad activities
of local government units for the delivery of basic services
essential to the promotion of the general welfare and
enhancement of peace, progress, and prosperity of the people.
Consequently, any delay in implementing tax measures would be
to the detriment of the public. It is for this reason that protests over
tax ordinances are required to be done within certain time frames.
x x x.42
The obligatory nature of Section 187 was underscored in Hagonoy
Market Vendor Asso. v. Municipality of Hagonoy:43
x x x [T]he timeframe fixed by law fo r parties to avail of their legal
remedies before competent courts is not a "mere technicality" that
can be easily brushed aside. The periods stated in Section 187 of
the Local Government Code are mandatory. x x x Being its
lifeblood, collection of revenues by the government is of
paramount importance. The funds for the operation of its agencies
and provision of basic services to its inhabitants are largely
derived from its revenues and collections. Thus, it is essential that
the validity of revenue measures is not left uncertain for a
considerable length of time. Hence, the law provided a time limit
for an aggrieved party to assail the legality of revenue measures
and tax ordinances."44
Despite these cases, the Court, in Ongsuco, et al. v. Hon.
Malones,45held that there was no need for petitioners therein to
exhaust administrative remedies before resorting to the courts,
considering that there was only a pure question of law, the parties
did not dispute any factual matter on which they had to present
evidence. Likewise, in Cagayan Electric Power and Light Co., Inc.
v. City of Cagayan de Oro,46 We relaxed the application of the rules
in view of the more substantive matters. For the same reasons,
this petition is an exception to the general rule.
Substantive Issues
Petitioner asserts that the protection of real properties from
informal settlers and the collection of garbage are basic and
essential duties and functions of the Quezon City Government. By
imposing the SHT and the garbage fee, the latter has shown a
penchant and pattern to collect taxes to pay for public services
that could be covered by its revenues from taxes imposed on
property, idle land, business, transfer, amusement, etc., as well as
the Internal Revenue Allotment (IRA ) from the National
Government. For petitioner, it is noteworthy that respondents did
not raise the issue that the Quezon City Government is in dire
financial state and desperately needs money to fund housing for
informal settlers and to pay for garbage collection. In fact, it has
not denied that its revenue collection in 2012 is in the sum of
₱13.69 billion.
Moreover, the imposition of the SHT and the garbage fee cannot
be justified by the Quezon City Government as an exercise of its
power to create sources of income under Section 5, Article X of
the 1987 Constitution.47 According to petitioner, the constitutional
provision is not a carte blanche for the LGU to tax everything
under its territorial and political jurisdiction as the provision itself
admits of guidelines and limitations.
Petitioner further claims that the annual property tax is an ad
valorem tax, a percentage of the assessed value of the property,
which is subject to revision every three (3) years in order to reflect
an increase in the market value of the property. The SHT and the
garbage fee are actually increases in the property tax which are
not based on the assessed value of the property or its
reassessment every three years; hence, in violation of Sections
232 and 233 of the LGC.48
For their part, respondents relied on the presumption in favor of
the constitutionality of Ordinance Nos. SP-2095 and SP-2235,
invoking Victorias Milling Co., Inc. v. Municipality of Victorias,
etc.,49 People v. Siton, et al.,50 and Hon. Ermita v. Hon. Aldecoa-
Delorino .51 They argue that the burden of establishing the invalidity
of an ordinance rests heavily upon the party challenging its
constitutionality. They insist that the questioned ordinances are
proper exercises of police power similar to Telecom. & Broadcast
Attys. of the Phils., Inc. v. COMELEC52 and Social Justice Society
(SJS), et al. v. Hon. Atienza, Jr.53 and that their enactment finds
basis in the social justice principle enshrined in Section 9,54 Article
II of the 1987 Constitution.
As to the issue of publication, respondents argue that where the
law provides for its own effectivity, publication in the Official
Gazette is not necessary so long as it is not punitive in character,
citing Balbuna, et al. v. Hon. Secretary of Education, et al.55 and
Askay v. Cosalan .[56]] Thus, Ordinance No. SP-2095 took effect
after its publication, while Ordinance No. SP-2235 became
effective after its approval on December 26, 2013.
Additionally, the parties articulate the following positions:
On the Socialized Housing Tax
Respondents emphasize that the SHT is pursuant to the social
justice principle found in Sections 1 and 2, Article XIII57 of the 1987
Constitution and Sections 2 (a)58 and 4359 of R.A. No. 7279, or the
"Urban Development and Housing Act of 1992 ( UDHA ).
Relying on Manila Race Horse Trainers Assn., Inc. v. De La
Fuente,60and Victorias Milling Co., Inc. v. Municipality of Victorias,
etc.,61respondents assert that Ordinance No. SP-2095 applies
equally to all real property owners without discrimination. There is
no way that the ordinance could violate the equal protection clause
because real property owners and informal settlers do not belong
to the same class.
Ordinance No. SP-2095 is also not oppressive since the tax rate
being imposed is consistent with the UDHA. While the law
authorizes LGUs to collect SHT on properties with an assessed
value of more than ₱50,000.00, the questioned ordinance only
covers properties with an assessed value exceeding ₱100,000.00.
As well, the ordinance provides for a tax credit equivalent to the
total amount of the special assessment paid by the property owner
beginning in the sixth (6th) year of the effectivity of the ordinance.
On the contrary, petitioner claims that the collection of the SHT is
tantamount to a penalty imposed on real property owners due to
the failure of respondent Quezon City Mayor and Council to
perform their duty to secure and protect real property owners from
informal settlers, thereby burdening them with the expenses to
provide funds for housing. For petitioner, the SHT cannot be
viewed as a "charity" from real property owners since it is forced,
not voluntary.
Also, petitioner argues that the collection of the SHT is a kind of
class legislation that violates the right of property owners to equal
protection of the laws since it favors informal settlers who occupy
property not their own and pay no taxes over law-abiding real
property owners w ho pay income and realty taxes.
Petitioner further contends that respondents’ characterization of
the SHT as "nothing more than an advance payment on the real
property tax" has no statutory basis. Allegedly, property tax cannot
be collected before it is due because, under the LGC, chartered
cities are authorized to impose property tax based on the
assessed value and the general revision of assessment that is
made every three (3) years.
As to the rationale of SHT stated in Ordinance No. SP-2095,
which, in turn, was based on Section 43 of the UDHA, petitioner
asserts that there is no specific provision in the 1987 Constitution
stating that the ownership and enjoyment of property bear a social
function. And even if there is, it is seriously doubtful and far-
fetched that the principle means that property owners should
provide funds for the housing of informal settlers and for home site
development. Social justice and police power, petitioner believes,
does not mean imposing a tax on one, or that one has to give up
something, for the benefit of another. At best, the principle that
property ownership and enjoyment bear a social function is but a
reiteration of the Civil Law principle that property should not be
enjoyed and abused to the injury of other properties and the
community, and that the use of the property may be restricted by
police power, the exercise of which is not involved in this case.
Finally, petitioner alleges that 6 Bistekvilles will be constructed out
of the SHT collected. Bistek is the monicker of respondent City
Mayor. The Bistekvilles makes it clear, therefore, that politicians
will take the credit for the tax imposed on real property owners.
On the Garbage Fee
Respondents claim that Ordinance No. S-2235, which is an
exercise of police power, collects on the average from every
household a garbage fee in the meager amount of thirty-three (33)
centavos per day compared with the sum of ₱1,659.83 that the
Quezon City Government annually spends for every household for
garbage collection and waste management.62
In addition, there is no double taxation because the ordinance
involves a fee. Even assuming that the garbage fee is a tax, the
same cannot be a direct duplicate tax as it is imposed on a
different subject matter and is of a different kind or character.
Based on Villanueva, et al. v. City of Iloilo63 and Victorias Milling
Co., Inc. v. Municipality of Victorias, etc.,64 there is no "taxing
twice" because the real property tax is imposed on ownership
based on its assessed value, while the garbage fee is required on
the domestic household. The only reference to the property is the
determination of the applicable rate and the facility of collection.
Petitioner argues, however, that Ordinance No. S-2235 cannot be
justified as an exercise of police power. The cases of Calalang v.
Williams,65 Patalinghug v. Court of Appeals,66 and Social Justice
Society (SJS), et al. v. Hon. Atienza, Jr.,67 which were cited by
respondents, are inapplicable since the assailed ordinance is a
revenue measure and does not regulate the disposal or other
aspect of garbage.
The subject ordinance, for petitioner, is discriminatory as it collects
garbage fee only from domestic households and not from
restaurants, food courts, fast food chains, and other commercial
dining places that spew garbage much more than residential
property owners.
Petitioner likewise contends that the imposition of garbage fee is
tantamount to double taxation because garbage collection is a
basic and essential public service that should be paid out from
property tax, business tax, transfer tax, amusement tax,
community tax certificate, other taxes, and the IRA of the Quezon
City Government. To bolster the claim, he states that the revenue
collection of the Quezon City Government reached Php13.69
billion in 2012. A small portion of said amount could be spent for
garbage collection and other essential services.
It is further noted that the Quezon City Government already
collects garbage fee under Section 4768 of R.A. No. 9003, or the
Ecological Solid Waste Management Act of 2000, which
authorizes LGUs to impose fees in amounts sufficient to pay the
costs of preparing, adopting, and implementing a solid waste
management plan, and that LGUs have access to the Solid Waste
Management (SWM) Fund created under Section 4669 of the same
law. Also, according to petitioner, it is evident that Ordinance No.
S2235 is inconsistent with R.A. No. 9003 for whil e the law
encourages segregation, composting, and recycling of waste, the
ordinance only emphasizes the collection and payment of garbage
fee; while the law calls for an active involvement of the barangay
in the collection, segregation, and recycling of garbage, the
ordinance skips such mandate. Lastly, in challenging the
ordinance, petitioner avers that the garbage fee was collected
even if the required publication of its approval had not yet elapsed.
He notes that on January 7, 2014, he paid his realty tax which
already included the garbage fee.
The Court's Ruling
Respondents correctly argued that an ordinance, as in every law,
is presumed valid.
An ordinance carries with it the presumption of validity. The
question of reasonableness though is open to judicial inquiry.
Much should be left thus to the discretion of municipal authorities.
Courts will go slow in writing off an ordinance as unreasonable
unless the amount is so excessive as to be prohibitive, arbitrary,
unreasonable, oppressive, or confiscatory. A rule which has
gained acceptance is that factors relevant to such an inquiry are
the municipal conditions as a whole and the nature of the business
made subject to imposition.70
For an ordinance to be valid though, it must not only be within the
corporate powers of the LGU to enact and must be passed
according to the procedure prescribed by law, it should also
conform to the following requirements: (1) not contrary to the
Constitution or any statute; (2) not unfair or oppressive; (3) not
partial or discriminatory; (4) not prohibit but may regulate trade; (5)
general and consistent with public policy; and (6) not
unreasonable.71 As jurisprudence indicates, the tests are divided
into the formal (i.e., whether the ordinance was enacted within the
corporate powers of the LGU and whether it was passed in
accordance with the procedure prescribed by law), and the
substantive ( i.e., involving inherent merit, like the conformity of the
ordinance with the limitations under the Constitution and the
statutes, as well as with the requirements of fairness and reason,
and its consistency with public policy).72
An ordinance must pass muster under the test of constitutionality
and the test of consistency with the prevailing laws.73 If not, it is
void.74
Ordinance should uphold the principle of the supremacy of the
Constitution.75 As to conformity with existing statutes,
Batangas CATV, Inc. v. Court of Appeals76 has this to say:
It is a fundamental principle that municipal ordinances are inferior
in status and subordinate to the laws of the state. An ordinance in
conflict with a state law of general character and statewide
application is universally held to be invalid. The principle is
frequently expressed in the declaration that municipal authorities,
under a general grant of power, cannot adopt ordinances which
infringe the spirit of a state law or repugnant to the general policy
of the state. In every power to pass ordinances given to a
municipality, there is an implied restriction that the ordinances
shall be consistent with the general law. In the language of Justice
Isagani Cruz (ret.), this Court, in Magtajas vs. Pryce Properties
Corp., Inc., ruled that:
The rationale of the requirement that the ordinances should not
contravene a statute is obvious. Municipal governments are only
agents of the national government. Local councils exercise only
delegated legislative powers conferred on them by Congress as
the national lawmaking body. The delegate cannot be superior to
the principal or exercise powers higher than those of the latter. It is
a heresy to suggest that the local government units can undo the
acts of Congress, from which they have derived their power in the
first place, and negate by mere ordinance the mandate of the
statute.
Municipal corporations owe their origin to, and derive their powers
and rights wholly from the legislature. It breathes into them the
breath of life, without which they cannot exist. As it creates, so it
may destroy. As it may destroy, it may abridge and control. Unless
there is some constitutional limitation on the right, the legislature
might, by a single act, and if we can suppose it capable of so great
a folly and so great a wrong, sweep from existence all of the
municipal corporations in the State, and the corporation could not
prevent it. We know of no limitation on the right so far as to the
corporation themselves are concerned. They are so to phrase it,
the mere tenants at will of the legislature.
This basic relationship between the national legislature and the
local government units has not been enfeebled by the new
provisions in the Constitution strengthening the policy of local
autonomy. Without meaning to detract from that policy, we here
confirm that Congress retains control of the local government units
although in significantly reduced degree now than under our
previous Constitutions. The power to create still includes the
power to destroy. The power to grant still includes the power to
withhold or recall. True, there are certain notable innovations in
the Constitution, like the direct conferment on the local
government units of the power to tax, which cannot now be
withdrawn by mere statute. By and large, however, the national
legislature is still the principal of the local government units, which
cannot defy its will or modify or violate it.77
LGUs must be reminded that they merely form part of the whole;
that the policy of ensuring the autonomy of local governments was
never intended by the drafters of the 1987 Constitution to create
an imperium in imperio and install an intra-sovereign political
subdivision independent of a single sovereign state.78
"[M]unicipal corporations are bodies politic and corporate, created
not only as local units of local self-government, but as
governmental agencies of the state. The legislature, by
establishing a municipal corporation, does not divest the State of
any of its sovereignty; absolve itself from its right and duty to
administer the public affairs of the entire state; or divest itself of
any power over the inhabitants of the district which it possesses
before the charter was granted."79
LGUs are able to legislate only by virtue of a valid delegation of
legislative power from the national legislature; they are mere
agents vested with what is called the power of subordinate
legislation.80 "Congress enacted the LGC as the implementing law
for the delegation to the various LGUs of the State’s great powers,
namely: the police power, the power of eminent domain, and the
power of taxation. The LGC was fashioned to delineate the
specific parameters and limitations to be complied with by each
LGU in the exercise of these delegated powers with the view of
making each LGU a fully functioning subdivision of the State
subject to the constitutional and statutory limitations."81
Specifically, with regard to the power of taxation, it is indubitably
the most effective instrument to raise needed revenues in
financing and supporting myriad activities of the LGUs for the
delivery of basic services essential to the promotion of the general
welfare and the enhancement of peace, progress, and prosperity
of the people.82 As this Court opined in National Power Corp. v.
City of Cabanatuan:83
In recent years, the increasing social challenges of the times
expanded the scope of state activity, and taxation has become a
tool to realize social justice and the equitable distribution of wealth,
economic progress and the protection of local industries as well as
public welfare and similar objectives. Taxation assume s even
greater significance with the ratification of the 1987 Constitution.
Thenceforth, the power to tax is no longer vested exclusively on
Congress; local legislative bodies are now given direct authority to
levy taxes, fees and other charges pursuant to Article X, Section 5
of the 1987 Constitution, viz: "Section 5. Each Local Government
unit shall have the power to create its own sources of revenue, to
levy taxes, fees and charges subject to such guidelines and
limitations as the Congress may provide, consistent with the basic
policy of local autonomy. Such taxes, fees and charges shall
accrue exclusively to the local governments."
This paradigm shift results from the realization that genuine
development can be achieved only by strengthening local
autonomy and promoting decentralization of governance. For a
long time, the country’s highly centralized government structure
has bred a culture of dependence among local government
leaders upon the national leadership. It has also "dampened the
spirit of initiative, innovation and imaginative resilience in matters
of local development on the part of local government leaders." The
only way to shatter this culture of dependence is to give the LGUs
a wider role in the delivery of basic services, and confer them
sufficient powers to generate their own sources for the purpose.
To achieve this goal, Section 3 of Article X of the 1987
Constitution mandates Congress to enact a local government code
that will, consistent with the basic policy of local autonomy , set the
guidelines and limitations to this grant of taxing powers x x x84
Fairly recently, We also stated in Pelizloy Realty Corporation v.
Province of Benguet85 that:
The rule governing the taxing power of provinces, cities,
municipalities and barangays is summarized in Icard v. City
Council of Baguio :
It is settled that a municipal corporation unlike a sovereign state is
clothed with no inherent power of taxation. The charter or statute
must plainly show an intent to confer that power or the
municipality, cannot assume it. And the power when granted is to
be construed in strictissimi juris . Any doubt or ambiguity arising
out of the term used in granting that power must be resolved
against the municipality. Inferences, implications, deductions – all
these – have no place in the interpretation of the taxing power of a
municipal corporation. [Underscoring supplied]
xxxx
Per Section 5, Article X of the 1987 Constitution, "the power to tax
is no longer vested exclusively on Congress; local legislative
bodies are now given direct authority to levy taxes, fees and other
charges." Nevertheless, such authority is "subject to such
guidelines and limitations as the Congress may provide."
In conformity with Section 3, Article X of the 1987 Constitution,
Congress enacted Republic Act No. 7160, otherwise known as the
Local Government Code of 1991. Book II of the LGC governs local
taxation and fiscal matters.86
Indeed, LGUs have no inherent power to tax except to the extent
that such power might be delegated to them either by the basic
law or by the statute.87 "Under the now prevailing Constitution ,
where there is neither a grant nor a prohibition by statute , the tax
power must be deemed to exist although Congress may provide
statutory limitations and guidelines. The basic rationale for the
current rule is to safeguard the viability and self-sufficiency of local
government units by directly granting them general and broad tax
powers. Nevertheless, the fundamental law did not intend the
delegation to be absolute and unconditional; the constitutional
objective obviously is to ensure that, while the local government
units are being strengthened and made more autonomous , the
legislature must still see to it that (a) the taxpayer will not be over-
burdened or saddled with multiple and unreasonable impositions;
(b) each local government unit will have its fair share of available
resources; (c) the resources of the national government will not be
unduly disturbed; and (d) local taxation will be fair, uniform, and
just."88
Subject to the provisions of the LGC and consistent with the basic
policy of local autonomy, every LGU is now empowered and
authorized to create its own sources of revenue and to levy taxes,
fees, and charges which shall accrue exclusively to the local
government unit as well as to apply its resources and assets for
productive, developmental, or welfare purposes, in the exercise or
furtherance of their governmental or proprietary powers and
functions.89 The relevant provisions of the LGC which establish the
parameters of the taxing power of the LGUs are as follows:
SECTION 130. Fundamental Principles. – The following
fundamental principles shall govern th e exercise of the taxing and
other revenue-raising powers of local government units:
(a) Taxation shall be uniform in each local government
unit;
(b) Taxes, fees, charges and other impositions shall:
(1) be equitable and based as far as practicable on
the taxpayer’s ability to pay;
(2) be levied and collected only for public
purposes;
 (3) not be unjust, excessive, oppressive, or
confiscatory;
(4) not be contrary to law, public policy, national
economic policy, or in restraint of trade;
(c) The collection of local taxes, fees, charges and other
impositions shall in no case be left to any private person;
(d) The revenue collected pursuant to the provisions of this
Code shall inure solely to the benefit of, and be subject to
the disposition by, the local government unit levying the
tax, fee, charge or other imposition unless otherwise
specifically provided herein; and,
(e) Each local government unit shall, as far as practicable,
evolve a progressive system of taxation.
SECTION 133. Common Limitations on the Taxing Powers of
Local Government Units. – Unless otherwise provided herein, the
exercise of the taxing powers of provinces, cities, municipalities,
and barangays shall not extend to the levy of the following:
(a) Income tax, except when levied on banks and other
financial institutions;
(b) Documentary stamp tax;
(c) Taxes on estates, inheritance, gifts, legacies and other
acquisitions mortis causa, except as otherwise provided
herein;
(d) Customs duties, registration fees of vessel and
wharage on wharves, tonnage dues, and all other kinds of
customs fees, charges and dues except wharfage on
wharves constructed and maintained by the local
government unit concerned;
(e) Taxes, fees, and charges and other impositions upon
goods carried into or out of, or passing through, the
territorial jurisdictions of local government units in the
guise of charges for wharfage, tolls for bridges or
otherwise, or other taxes, fees, or charges in any form
whatsoever upon such goods or merchandise;
(f) Taxes, fees or charges on agricultural and aquatic
products when sold by marginal farmers or fishermen;
(g) Taxes on business enterprises certified to by the Board
of Investments as pioneer or non-pioneer for a period of
six (6) and four (4) years, respectively from the date of
registration;
(h) Excise taxes on articles enumerated under the National
Internal Revenue Code, as amended, and taxes, fees or
charges on petroleum products;
(i) Percentage or value-added tax (VAT) on sales, barters
or exchanges or similar transactions on goods or services
except as otherwise provided herein;
(j) Taxes on the gross receipts of transportation
contractors and persons engaged in the transportation of
passengers or freight by hire and common carriers by air,
land or water, except as provided in this Code;
(k) Taxes on premiums paid by way of reinsurance or
retrocession;
(l) Taxes, fees or charges for the registration of motor
vehicles and for the issuance of all kinds of licenses or
permits for the driving thereof, except tricycles;
(m) Taxes, fees, or other charges on Philippine products
actually exported, except as otherwise provided herein;
(n) Taxes, fees, or charges, on Countryside and Barangay
Business Enterprises and cooperatives duly registered
under R.A. No. 6810 and Republic Act Numbered Sixty-
nine hundred thirty-eight (R.A. No. 6938) otherwise known
 as the "Cooperative Code of the Philippines" respectively;
and
(o) Taxes, fees or charges of any kind on the National
Government, its agencies and instrumentalities, and local
government units.
SECTION 151. Scope of Taxing Powers. – Except as otherwise
provided in this Code, the city, may levy the taxes, fees, and
charges which the province or municipality may impose: Provided,
however, That the taxes, fees and charges levied and collected by
highly urbanized and independent component cities shall accrue to
them and distributed in accordance with the provisions of this
Code.
The rates of taxes that the city may levy may exceed the maximum
rates allowed for the province or municipality by not more than fifty
percent (50%) except the rates of professional and amusement
taxes.
SECTION 186. Power to Levy Other Taxes, Fees or Charges. –
Local government units may exercise the power to levy taxes, fees
or charges on any base or subject not otherwise specifically
enumerated herein or taxed under the provisions of the National
Internal Revenue Code, as amended, or other applicable laws:
Provided, That the taxes, fees, or charges shall not be unjust,
excessive, oppressive, confiscatory or contrary to declared
national policy: Provided, further, That the ordinance levying such
taxes, fees or charges shall not be enacted without any prior
public hearing conducted for the purpose.
On the Socialized Housing Tax
Contrary to petitioner’s submission, the 1987 Constitution explicitly
espouses the view that the use of property bears a social function
and that all economic agents shall contribute to the common
good.90 The Court already recognized this in Social Justice Society
(SJS), et al. v. Hon. Atienza, Jr.:91
Property has not only an individual function, insofar as it has to
provide for the needs of the owner, but also a social function
insofar as it has to provide for the needs of the other members of
society. The principle is this:
Police power proceeds from the principle that every holder of
property, however absolute and unqualified may be his title, holds
it under the implied liability that his use of it shall not be injurious to
the equal enjoyment of others having an equal right to the
enjoyment of their property, no r injurious to the right of the
community. Rights of property, like all other social and
conventional rights, are subject to reasonable limitations in their
enjoyment as shall prevent them from being injurious, and to such
reasonable restraints and regulations established by law as the
legislature, under the governing an d controlling power vested in
them by the constitution, may think necessary and expedient.92
Police power, which flows from the recognition that salus populi
est suprema lex (the welfare of the people is the supreme law), is
the plenary power vested in the legislature to make statutes and
ordinances to promote the health, morals, peace, education, good
order or safety and general welfare of the people.93 Property rights
of individuals may be subjected to restraints and burdens in order
to fulfill the objectives of the government in the exercise of police
power. 94 In this jurisdiction, it is well-entrenched that taxation may
be made the implement of the state’s police power.95
Ordinance No. SP-2095 imposes a Socialized Housing Tax
equivalent to 0.5% on the assessed value of land in excess of
Php100,000.00. This special assessment is the same tax referred
to in R.A. No. 7279 or the UDHA.96 The SHT is one of the sources
of funds for urban development and housing program.97 Section 43
of the law provides:
Sec. 43. Socialized Housing Tax . – Consistent with the
constitutional principle that the ownership and enjoyment of
property bear a social function and to raise funds for the Program,
all local government units are hereby authorized to impose an
additional one-half percent (0.5%) tax on the assessed value of all
lands in urban areas in excess of Fifty thousand pesos
(₱50,000.00).
The rationale of the SHT is found in the preambular clauses of the
subject ordinance, to wit:
WHEREAS, the imposition of additional tax is intended to provide
the City Government with sufficient funds to initiate, implement and
undertake Socialized Housing Projects and other related
preliminary activities;
WHEREAS, the imposition of 0.5% tax will benefit the Socialized
Housing Programs and Projects of the City Government,
specifically the marginalized sector through the acquisition of
properties for human settlements;
WHEREAS, the removal of the urban blight will definitely increase
fair market value of properties in the city[.]
The above-quoted are consistent with the UDHA, which the LGUs
are charged to implement in their respective localities in
coordination with the Housing and Urban Development
Coordinating Council, the national housing agencies, the
Presidential Commission for the Urban Poor, the private sector,
and other non-government organizations.98 It is the declared policy
of the State to undertake a comprehensive and continuing urban
development and housing program that shall, among others, uplift
the conditions of the underprivileged and homeless citizens in
urban areas and in resettlement areas, and provide for the rational
use and development of urban land in order to bring a bout,
among others, reduction in urban dysfunctions, particularly those
that adversely affect public health, safety and ecology, and access
to land and housing by the underprivileged and homeless
citizens.99 Urban renewal and resettlement shall include the
rehabilitation and development of blighted and slum areas100 and
the resettlement of program beneficiaries in accordance with the
provisions of the UDHA.101 Under the UDHA, socialized
housing102 shall be the primary strategy in providing shelter for the
underprivileged and homeless.103 The LGU or the NHA, in
cooperation with the private developers and concerned agencies,
shall provide socialized housing or re settlement areas with basic
services and facilities such as potable water, power and electricity,
and an adequate power distribution system, sewerage facilities,
and an efficient and adequate solid waste disposal system; and
access to primary roads and transportation facilities.104 The
provisions for health, education, communications, security,
recreation, relief and welfare shall also be planned and be given
priority for implementation by the LGU and concerned agencies in
cooperation with the private sector and the beneficiaries
themselves.105
Moreover, within two years from the effectivity of the UDHA, the
LGUs, in coordination with the NHA, are directed to implement the
relocation and resettlement of persons living in danger areas such
as esteros , railroad tracks, garbage dumps, riverbanks,
shorelines, waterways, and other public places like sidewalks,
roads, parks, and playgrounds.106 In coordination with the NHA, the
LG Us shall provide relocation or resettlement sites with basic
services and facilities and access to employment and livelihood
opportunities sufficient to meet the basic needs of the affected
families.107
Clearly, the SHT charged by the Quezon City Government is a tax
which is within its power to impose. Aside from the specific
authority vested by Section 43 of the UDHA, cities are allowed to
exercise such other powers and discharge such other functions
and responsibilities as are necessary, appropriate, or incidental to
efficient and effective provision of the basic services and facilities
which include, among others, programs and projects for low-cost
housing and other mass dwellings.108 The collections made accrue
to its socialized housing programs and projects.
The tax is not a pure exercise of taxing power or merely to raise
revenue; it is levied with a regulatory purpose. The levy is primarily
in the exercise of the police power for the general welfare of the
entire city. It is greatly imbued with public interest. Removing slum
areas in Quezon City is not only beneficial to the underprivileged
and homeless constituents but advantageous to the real property
owners as well. The situation will improve the value of the their
property investments, fully enjoying the same in view of an orderly,
secure, and safe community, and will enhance the quality of life of
the poor, making them law-abiding constituents and better
consumers of business products.
Though broad and far-reaching, police power is subordinate to
constitutional limitations and is subject to the requirement that its
exercise must be reasonable and for the public good.109 In the
words of City of Manila v. Hon. Laguio, Jr.:110
The police power granted to local government units must always
be exercised with utmost observance of the rights of the people to
due process and equal protection of the law. Such power cannot
be exercised whimsically, arbitrarily or despotically as its exercise
is subject to a qualification, limitation or restriction demanded by
the respect and regard due to the prescription of the fundamental
law, particularly those forming part of the Bill of Rights. Individual
rights, it bears emphasis, may be adversely affected only to the
extent that may fairly be required by the legitimate demands of
public interest or public welfare. Due process requires the intrinsic
validity of the law in interfering with the rights of the person to his
life, liberty and property.
xxxx
To successfully invoke the exercise of police power as the
rationale for the enactment of the Ordinance, and to free it from
the imputation of constitutional infirmity, not only must it appear
that the interests of the public generally, as distinguished from
those of a particular class, require an interference with private
rights, but the means adopted must be reasonably necessary for
the accomplishment of the purpose and not unduly oppressive
upon individuals. It must be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can
work. A reasonable relation must exist between the purposes of
the police measure and the means employed for its
accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property
will not be permitted to be arbitrarily invaded.
Lacking a concurrence of these two requisites, the police measure
shall be struck down as an arbitrary intrusion into private rights – a
violation of the due process clause.111
As with the State, LGUs may be considered as having properly
exercised their police power only if there is a lawful subject and a
lawful method or, to be precise, if the following requisites are met:
(1) the interests of the public generally, as distinguished from
those of a particular class, require its exercise and (2) the mean s
employed are reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals.112
In this case, petitioner argues that the SHT is a penalty imposed
on real property owners because it burdens them with expenses to
provide funds for the housing of informal settlers, and that it is a
class legislation since it favors the latter who occupy properties
which is not their own and pay no taxes.
We disagree.
Equal protection requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and
responsibilities imposed.113 The guarantee means that no person or
class of persons shall be denied the same protection of laws which
is enjoyed by other persons or other classes in like
circumstances.114 Similar subjects should not be treated differently
so as to give undue favor to some and unjustly discriminate
against others.115 The law may, therefore, treat and regulate one
class differently from another class provided there are real and
substantial differences to distinguish one class from another.116
An ordinance based on reasonable classification does not violate
the constitutional guaranty of the equal protection of the law. The
requirements for a valid and reasonable classification are: (1) it
must rest on substantial distinctions; (2) it must be germane to the
purpose of the law; (3) it must not be limited to existing conditions
only; and (4) it must apply equally to all members of the same
class.117For the purpose of undertaking a comprehensive and
continuing urban development and housing program, the
disparities between a real property owner and an informal settler
as two distinct classes are too obvious and need not be discussed
at length. The differentiation conforms to the practical dictates of
justice and equity and is not discriminatory within the meaning of
the Constitution. Notably, the public purpose of a tax may legally
exist even if the motive which impelled the legislature to impose
the tax was to favor one over another.118 It is inherent in the power
to tax that a State is free to select the subjects of
taxation.119 Inequities which result from a singling out of one
particular class for taxation or exemption infringe no constitutional
limitation.120
Further, the reasonableness of Ordinance No. SP-2095 cannot be
disputed. It is not confiscatory or oppressive since the tax being
imposed therein is below what the UDHA actually allows. As
pointed out by respondents, while the law authorizes LGUs to
collect SHT on lands with an assessed value of more than
₱50,000.00, the questioned ordinance only covers lands with an
assessed value exceeding ₱100,000.00. Even better, on certain
conditions, the ordinance grants a tax credit equivalent to the total
amount of the special assessment paid beginning in the sixth (6th)
year of its effectivity. Far from being obnoxious, the provisions of
the subject ordinance are fair and just.
On the Garbage Fee
In the United States of America, it has been held that the authority
of a municipality to regulate garbage falls within its police power to
protect public health, safety, and welfare.121 As opined, the
purposes and policy underpinnings of the police power to regulate
the collection and disposal of solid waste are: (1) to preserve and
protect the public health and welfare as well as the environment by
minimizing or eliminating a source of disease and preventing and
abating nuisances; and (2) to defray costs and ensure financial
stability of the system for the benefit of the entire community, with
the sum of all charges marshalled and designed to pay for the
expense of a systemic refuse disposal scheme.122
Ordinances regulating waste removal carry a strong presumption
of
validity.123 Not surprisingly, the overwhelming majority of U.S.
cases addressing a city's authority to impose mandatory garbage
service and fees have upheld the ordinances against constitutional
and statutory challenges.124
A municipality has an affirmative duty to supervise and control the
collection of garbage within its corporate limits.125 The LGC
specifically assigns the responsibility of regulation and oversight of
solid waste to local governing bodies because the Legislature
determined that such bodies were in the best position to develop
efficient waste management programs.126 To impose on local
governments the responsibility to regulate solid waste but not
grant them the authority necessary to fulfill the same would lead to
an absurd result."127 As held in one U.S. case:
x x x When a municipality has general authority to regulate a
particular subject matter, the manner and means of exercising
those powers, where not specifically prescribed by the legislature,
are left to the discretion of the municipal authorities. x x x Leaving
the manner of exercising municipal powers to the discretion of
municipal authorities "implies a range of reasonableness within
which a municipality's exercise of discretion will not be interfered
with or upset by the judiciary."128
In this jurisdiction, pursuant to Section 16 of the LGC and in the
proper exercise of its corporate powers under Section 22 of the
same, the Sangguniang Panlungsod of Quezon City, like other
local legislative bodies, is empowered to enact ordinances,
approve resolutions, and appropriate funds for the genera l welfare
of the city and its inhabitants.129Section 16 of the LGC provides:
SECTION 16. General Welfare . – Every local government unit
shall exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate, or
incidental for its efficient and effective governance, and those
which are essential to the promotion of the general welfare. Within
their respective territorial jurisdictions, local government units shall
ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the
right of the people to a balanced ecology, encourage and support
the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.
The general welfare clause is the delegation in statutory form of
the police power of the State to LGUs.130 The provisions related
thereto are liberally interpreted to give more powers to LGUs in
accelerating economic development and upgrading the quality of
life for the people in the community.131 Wide discretion is vested on
the legislative authority to determine not only what the interests of
the public require but also what measures are necessary for the
protection of such interests since the Sanggunian is in the best
position to determine the needs of its constituents.132
One of the operative principles of decentralization is that, subject
to the provisions of the LGC and national policies, the LGUs shall
share with the national government the responsibility in the
management and maintenance of ecological balance within their
territorial jurisdiction.133 In this regard, cities are allowed to exercise
such other powers and discharge such other functions and
responsibilities as are necessary, appropriate, or incidental to
efficient and effective provision of the basic services and facilities
which include, among others, solid waste disposal system or
environmental management system and services or facilities
related to general hygiene and sanitation.134 R.A. No. 9003, or the
Ecological Solid Waste Management Act of 2000,135 affirms this
authority as it expresses that the LGUs shall be primarily
responsible for the implementation and enforcement of its
provisions within their respective jurisdictions while establishing a
cooperative effort among the national government, other local
government units, non-government organizations, and the private
sector.136
Necessarily, LGUs are statutorily sanctioned to impose and collect
such reasonable fees and charges for services
rendered.137 "Charges" refer to pecuniary liability, as rents or fees
against persons or property, while "Fee" means a charge fixed by
law or ordinance for the regulation or inspection of a business or
activity.138
The fee imposed for garbage collections under Ordinance No. SP-
2235 is a charge fixed for the regulation of an activity. The basis
for this could be discerned from the foreword of said Ordinance, to
wit:
WHEREAS, Quezon City being the largest and premiere city in the
Philippines in terms of population and urban geographical areas,
apart from being competent and efficient in the delivery of public
service, apparently requires a big budgetary allocation in order to
address the problems relative and connected to the prompt and
efficient delivery of basic services such as the effective system of
waste management, public information programs on proper garb
age and proper waste disposal, including the imposition of waste
regulatory measures;
WHEREAS, to help augment the funds to be spent for the city’s
waste management system, the City Government through the
Sangguniang Panlungsod deems it necessary to impose a
schedule of reasonable fees or charges for the garbage collection
services for residential (domestic household) that it renders to the
public.
Certainly, as opposed to petitioner’s opinion, the garbage fee is
not a tax. In Smart Communications, Inc. v. Municipality of Malvar,
Batangas ,139the Court had the occasion to distinguish these two
concepts:
In Progressive Development Corporation v. Quezon City, the Court
declared that "if the generating of revenue is the primary purpose
and regulation is merely incidental, the imposition is a tax; but if
regulation is the primary purpose, the fact that incidentally revenue
is also obtained does not make the imposition a tax."
In Victorias Milling Co., Inc. v. Municipality of Victorias, the Court
reiterated that the purpose and effect of the imposition determine
whether it is a tax or a fee, and that the lack of any standards for
such imposition gives the presumption that the same is a tax.
We accordingly say that the designation given by the municipal
authorities does not decide whether the imposition is properly a
license tax or a license fee. The determining factors are the
1aw p++i1
purpose and effect of the imposition as may be apparent from the
provisions of the ordinance. Thus, "[w]hen no police inspection,
supervision, or regulation is provided, nor any standard set for the
applicant to establish, or that he agrees to attain or maintain, but
any and all persons engaged in the business designated, without
qualification or hindrance, may come, and a license on payment of
the stipulated sum will issue, to do business, subject to no
prescribed rule of conduct and under no guardian eye, but
according to the unrestrained judgment or fancy of the applicant
and licensee, the presumption is strong that the power of taxation,
and not the police power, is being exercised."
In Georgia, U.S.A., assessments for garbage collection services
have been consistently treated as a fee and not a tax.140
In another U.S. case,141 the garbage fee was considered as a
"service charge" rather than a tax as it was actually a fee for a
service given by the city which had previously been provided at no
cost to its citizens.
Hence, not being a tax, the contention that the garbage fee under
Ordinance No. SP-2235 violates the rule on double taxation142 must
necessarily fail.
Nonetheless, although a special charge, tax, or assessment may
be imposed by a municipal corporation, it must be reasonably
commensurate to the cost of providing the garbage service.143 To
pass judicial scrutiny, a regulatory fee must not produce revenue
in excess of the cost of the regulation because such fee will be
construed as an illegal tax when the revenue generated by the
regulation exceeds the cost of the regulation.144
Petitioner argues that the Quezon City Government already
collects garbage fee under Section 47 of R.A. No. 9003, which
authorizes LGUs to impose fees in amounts sufficient to pay the
costs of preparing, adopting, and implementing a solid waste
management plan, and that it has access to the SWM Fund under
Section 46 of the same law. Moreover, Ordinance No. S-2235 is
inconsistent with R.A. No. 9003, because the ordinance
emphasizes the collection and payment of garbage fee with no
concern for segregation, composting and recycling of wastes. It
also skips the mandate of the law calling for the active involvement
of the barangay in the collection, segregation, and recycling of
garbage.
We now turn to the pertinent provisions of R.A. No. 9003.
Under R.A. No. 9003, it is the declared policy of the State to adopt
a systematic, comprehensive and ecological solid waste
management program which shall, among others, ensure the
proper segregation, collection, transport, storage, treatment and
disposal of solid waste through the formulation and adoption of the
best environmental practices in ecological waste
management.145 The law provides that segregation and collection
of solid waste shall be conducted at the barangay level,
specifically for biodegradable, compostable and reusable wastes,
while the collection of non-recyclable materials and special wastes
shall be the responsibility of the municipality or city.146 Mandatory
segregation of solid wastes shall primarily be conducted at the
source, to include household, institutional, industrial, commercial
and agricultural sources.147 Segregation at source refers to a solid
waste management practice of separating, at the point of origin,
different materials found in soli d waste in order to promote
recycling and re-use of resources and to reduce the volume of
waste for collection and disposal.148 Based on Rule XVII of the
Department of Environment and Natural Resources (DENR)
Administrative Order No. 2001-34, Series of 2001,149 which is the
Implementing Rules and Regulations ( IRR ) of R.A. No. 9003,
barangays shall be responsible for the collection, segregation, and
recycling of biodegradable, recyclable , compostable and reusable
wastes.150
For the purpose, a Materials Recovery Facility (MRF), which shall
receive biodegradable wastes for composting and mixed non-
biodegradable wastes for final segregation, re-use and recycling,
is to be established in every barangay or cluster of barangays.151
According to R.A. 9003, an LGU, through its local solid waste
management board, is mandated by law to prepare a 10-year solid
waste management plan consistent with the National Solid Waste
Management Framework.152 The plan shall be for the re-use,
recycling and composting of wastes generated in its jurisdiction;
ensure the efficient management of solid waste generated within
its jurisdiction; and place primary emphasis on implementation of
all feasible re-use, recycling, and composting programs while
identifying the amount of landfill and transformation capacity that
will be needed for solid waste which cannot be re-used, recycled,
or composted.153 One of the components of the so lid waste
management plan is source reduction:
(e) Source reduction – The source reduction component shall
include a program and implementation schedule which shows the
methods by which the LGU will, in combination with the recycling
and composting components, reduce a sufficient amount of solid
waste disposed of in accordance with the diversion requirements
of Section 20.
The source reduction component shall describe the following:
(1) strategies in reducing the volume of solid waste
generated at source;
(2) measures for implementing such strategies and the
resources necessary to carry out such activities;
(3) other appropriate waste reduction technologies that
may also be considered, provide d that such technologies
conform with the standards set pursuant to this Act;
(4) the types of wastes to be reduced pursuant to Section
15 of this Act;
(5) the methods that the LGU will use to determine the
categories of solid wastes to be diverted from disposal at a
disposal facility through re-use , recycling and composting;
and
(6) new facilities and of expansion of existing facilities
which will be needed to implement re-use, recycling and
composting.
The LGU source reduction component shall include the evaluation
and identification of rate structures and fees for the purpose of
reducing the amount of waste generated, and other source
reduction strategies, including but not limited to, program s and
economic incentives provided under Sec. 45 of this Act to reduce
the use of non-recyclable materials, replace disposable materials
and products with reusable materials and products, reduce
packaging, and increase the efficiency of the use of paper,
cardboard, glass, metal, and other materials. The waste reduction
activities of the community shall al so take into account, among
others, local capability, economic viability, technical requirements,
social concerns, disposition of residual waste and environmental
impact: Provided , That, projection of future facilities needed and
estimated cost shall be incorporated in the plan. x x x154
The solid waste management pl an shall also include an
implementation schedule for solid waste diversion:
SEC. 20. Establishing Mandatory Solid Waste Diversion. – Each
LGU plan shall include an implementation schedule which shows
that within five (5) years after the effectivity of this Act, the LGU
shall divert at least 25% of all solid waste from waste disposal
facilities through re-use, recycling, and composting activities and
other resource recovery activities: Provided , That the waste
diversion goals shall be increased every three (3) years thereafter:
Provided , further, That nothing in this Section prohibits a local
government unit from implementing re-use, recycling, and
composting activities designed to exceed the goal.
The baseline for the twenty-five percent (25%) shall be derived
from the waste characterization result155 that each LGU is
mandated to undertake.156In accordance with Section 46 of R.A.
No. 9003, the LGUs are entitled to avail of the SWM Fund on the
basis of their approved solid waste management plan. Aside from
this, they may also impose SWM Fees under Section 47 of the
law, which states:
SEC. 47. Authority to Collect Solid Waste Management Fees –
The local government unit shall impose fees in amounts sufficient
to pay the costs of preparing, adopting, and implementing a solid
waste management plan prepared pursuant to this Act. The fees
shall be based on the following minimum factors:
(a) types of solid waste;
 (b) amount/volume of waste; and
(c) distance of the transfer station to the waste
management facility.
The fees shall be used to pay the actual costs incurred by the LGU
in collecting the local fees. In determining the amounts of the fees,
an LGU shall include only those costs directly related to the
adoption and implementation of the plan and the setting and
collection of the local fees.
Rule XVII of the IRR of R.A. No. 9003 sets forth the details:
Section 1. Power to Collect Solid Waste Management Fees . –
The Local SWM Board/Local SWM Cluster Board shall impose
fees on the SWM services provided for by the LGU and/or any
authorized organization or unit. In determining the amounts of the
fees, a Local SWM Board/Local SWM Cluster Board shall include
only those costs directly related to the adoption and
implementation of the SWM Plan and the setting and collection of
the local fees. This power to impose fees may be ceded to the
private sector and civil society groups which have been duly
accredited by the Local SWM Boar d/Local SWM Cluster Board;
provided, the SWM fees shall be covered by a Contract or
Memorandum of Agreement between the respective boa rd and
the private sector or civil society group.
The fees shall pay for the costs of preparing, adopting and
implementing a SWM Plan prepared pursuant to the Act. Further,
the fees shall also be used to pay the actual costs incurred in
collecting the local fees and for project sustainability.
Section 2. Basis of SWM Service Fees
Reasonable SWM service fees shall be computed based on but
not limited to the following minimum factors:
a) Types of solid waste to include special waste
b) amount/volume of waste
c) distance of the transfer station to the waste
management facility
d) capacity or type of LGU constituency
e) cost of construction
f) cost of management
g) type of technology
Section 3. Collection of Fees. – Fees may be collected
corresponding to the following levels:
a) Barangay – The Barangay may impose fees for
collection and segregation of biodegradable, compostable
and reusable wastes from households, commerce, other
sources of domestic wastes, and for the use of Barangay
MRFs. The computation of the fees shall be established by
the respective SWM boards. The manner of collection of
the fees shall be dependent on the style of administration
of respective Barangay Councils. However, all transactions
shall follow the Commission on Audit rules on collection of
fees.
b) Municipality – The municipal and city councils may
impose fees on the barangay MRFs for the collection and
transport of non-recyclable and special wastes and for the
disposal of these into the sanitary landfill. The level and
procedure for exacting fees shall be defined by the Local
SWM Board/Local SWM Cluster Board and supported by
LGU ordinances; however, payments shall be consistent
with the accounting system of government.
c) Private Sector/Civil Society Group – On the basis of the
stipulations of contract or Memorandum of Agreement, the
private sector or civil society group shall impose fees for
collection, transport and tipping in their SLFs. Receipts and
invoices shall be issued to the paying public or to the
government.
From the afore-quoted provisions, it is clear that the authority of a In the subject ordinance, the rates of the imposable fee depend on
municipality or city to impose fees is limited to the collection and land or floor area and whether the payee is an occupant of a lot,
transport of non-recyclable and special wastes and for the condominium, social housing project or apartment. For easy
disposal of these into the sanitary landfill. Barangays, on the other reference, the relevant provision is again quoted below:
hand, have the authority to impose fees for the collection and
segregation of biodegradable, compostable and reusable wastes On all domestic households in Quezon City;
from households, commerce, other sources of domestic wastes,
and for the use of barangay MRFs. This is but consistent with
LAND AREA IMPOSABLE FEE
Section 10 of R.A. No. 9003 directing that segregation and Less than 200 sq. m. PHP 100.00
collection of biodegradable, compostable and reusable wastes
shall be conducted at the barangay level, while the collection of 201 sq. m. – 500 sq. m. PHP 200.00
non-recyclable materials and special wastes shall be the 501 sq. m. – 1,000 sq. m. PHP 300.00
responsibility of the municipality or city.
1,001 sq. m. – 1,500 sq. m. PHP 400.00
In this case, the alleged bases of Ordinance No. S-2235 in 1,501 sq. m. – 2,000 sq. m. or more PHP 500.00
imposing the garbage fee is the volume of waste currently
generated by each person in Quezon City, which purportedly
stands at 0.66 kilogram per day, and the increasing trend of waste On all condominium unit and socialized housing projects/units in
generation for the past three years.157 Respondents Quezon City;

did not elaborate any further. The figure presented does not reflect FLOOR AREA IMPOSABLE FEE
the specific types of wastes generated – whether residential,
market, commercial, industrial, construction/demolition, street Less than 40 sq. m. PHP 25.00
waste, agricultural, agro-industrial, institutional, etc. It is 41 sq. m. – 60 sq. m. PHP 50.00
reasonable, therefore, for the Court to presume that such amount
pertains to the totality of wastes, without any distinction, generated 61 sq. m. – 100 sq. m. PHP 75.00
by Quezon City constituents. To reiterate, however, the authority
of a municipality or city to impose fees extends only to those 101 sq. m. – 150 sq. m. PH₱100.00
related to the collection and transport of non-recyclable and 151 sq. m. – 200 sq. [m.] or more PHP 200.00
special wastes.

Granting, for the sake of argument, that the 0.66 kilogram of solid
waste per day refers only to non-recyclable and special wastes,
still, We cannot sustain the validity of Ordinance No. S-2235. It
violates the equal protection clause of the Constitution and the
provisions of the LGC that an ordinance must be equitable and
based as far as practicable on the taxpayer’s ability to pay, and
not unjust, excessive, oppressive, confiscatory.158
On high-rise Condominium Units
a) High-rise Condominium – The Homeowners Association
of high rise condominiums shall pay the annual garbage
fee on the total size of the entire condominium and
socialized Housing Unit and an additional garbage fee
shall be collected based on area occupied for every unit
already so ld or being amortized.
 b) High-rise apartment units – Owners of high-rise
apartment units shall pay the annual garbage fee on the
total lot size of the entire apartment and an additional
garbage fee based on the schedule prescribed herein for
every unit occupied.
For the purpose of garbage collection, there is, in fact, no
substantial distinction between an occupant of a lot, on one hand,
and an occupant of a unit in a condominium, socialized housing
project or apartment, on the other hand. Most likely, garbage
output produced by these types of occupants is uniform and does
not vary to a large degree; thus, a similar schedule of fee is both
just and equitable.159
The rates being charged by the ordinance are unjust and
inequitable: a resident of a 200 sq. m. unit in a condominium or
socialized housing project has to pay twice the amount than a
resident of a lot similar in size; unlike unit occupants, all occupants
of a lot with an area of 200 sq. m. and less have to pay a fixed rate
of Php100.00; and the same amount of garbage fee is imposed
regardless of whether the resident is from a condominium or from
a socialized housing project.
Indeed, the classifications under Ordinance No. S-2235 are not
germane to its declared purpose of "promoting shared
responsibility with the residents to attack their common mindless
attitude in over-consuming the present resources and in
generating waste."160 Instead of simplistically categorizing the
payee into land or floor occupant of a lot or unit of a condominium,
socialized housing project or apartment, respondent City Council
should have considered factors that could truly measure the
amount of wastes generated and the appropriate fee for its
collection. Factors include, among others, household age and
size, accessibility to waste collection, population density of the
barangay or district, capacity to pay, and actual occupancy of the
property. R.A. No. 9003 may also be looked into for guidance.
Under said law, WM service fees may be computed based on
minimum factors such as type s of solid waste to include special
waste, amount/volume of waste, distance of the transfer station to
the waste management facility, capacity or type of LGU
constituency, cost of construction, cost of management, and type
of technology. With respect to utility rates set by municipalities, a
municipality has the right to classify consumers under reasonable
classifications based upon factors such as the cost of service, the
purpose for which the service or the product is received, the
quantity or the amount received, the different character of the
service furnished, the time of its use or any other matter which
presents a substantial difference as a ground of distinction.161[A]
lack of uniformity in the rate charged is not necessarily unlawful
discrimination. The establishment of classifications and the
charging of different rates for the several classes is not
unreasonable and does not violate the requirements of equality
and uniformity. Discrimination to be unlawful must draw an unfair
line or strike an unfair balance between those in like
circumstances having equal rights and privileges. Discrimination
with respect to rates charged does not vitiate unless it is arbitrary
and without a reasonable fact basis or justification.162
On top of an unreasonable classification, the penalty clause of
Ordinance No. SP-2235, which states:
SECTION 3. Penalty Clause – A penalty of 25% of the garbage
fee due plus an interest of 2% per month or a fraction thereof
(interest) shall be charged against a household owner who refuses
to pay the garbage fee herein imposed. lacks the limitation
required by Section 168 of the LGC, which provides:
SECTION 168. Surcharges and Penalties on Unpaid Taxes, Fees,
or Charges. – The sanggunian may impose a surcharge not
exceeding twenty-five (25%) of the amount of taxes, fees or
charges not paid on time and an interest at the rate not exceeding
two percent (2%) per month of the unpaid taxes, fees or charges
including surcharges, until such amount is fully paid but in no case
shall the total interest on the unpaid amount or portion thereof
exceed thirty-six (36) months. (Emphasis supplied)
Finally, on the issue of publication of the two challenged
ordinances.
Petitioner argues that the garbage fee was collected even if the
required publication of its approval had not yet elapsed. He notes
that he paid his realty tax on January 7, 2014 which already
included the garbage fee. Respondents counter that if the law
provides for its own effectivity, publication in the Official Gazette is
not necessary so long as it is not penal in nature. Allegedly,
Ordinance No. SP-2095 took effect after its publication while
Ordinance No. SP-2235 became effective after its approval on
December 26, 2013.
The pertinent provisions of the LGC state:
SECTION 59. Effectivity of Ordinances or Resolutions. – (a)
Unless otherwise stated in the ordinance or the resolution
approving the local development plan and public investment
program, the same shall take effect after ten (10) days from the
date a copy thereof is posted in a bulletin board at the entrance of
the provincial capital or city, municipal, or barangay hall, as the
case may be, and in at least two (2) other conspicuous places in
the local government unit concerned.
(b) The secretary to the sanggunian concerned shall cause
the posting of an ordinance or resolution in the bulletin
board at the entrance of the provincial capital and the city,
municipal, or barangay hall in at least two
(2) conspicuous places in the local government unit
concerned not later than five (5) days after approval
thereof.
The text of the ordinance or resolution shall be
disseminated and posted in Filipino or English and in the
language or dialect understood by the majority of the
people in the local government unit concerned, and the
secretary to the sanggunian shall record such fact in a
book kept for the purpose, stating the dates of approval
and posting.
(c) The gist of all ordinances with penal sanctions shall be
published in a newspaper of general circulation within the
province where the local legislative body concerned
belongs. In the absence of any newspaper of general
circulation within the province, posting of such ordinances
shall be made in all municipalities and cities of the
province where the sanggunian of origin is situated.
(d) In the case of highly urbanized and independent
component cities, the main features of the ordinance or
resolution duly enacted or adopted shall, in addition to
being posted, be published once in a local newspaper of
general circulation within the city: Provided, That in the
absence thereof the ordinance or resolution shall be
published in any newspaper of general circulation.
SECTION 188. Publication of Tax Ordinances and Revenue
Measures. – Within ten (10) days after their approval, certified true
copies of all provincial, city, and municipal tax ordinances or
revenue measures shall be published in full for three (3)
consecutive days in a newspaper of local circulation: Provided,
however, That in provinces, cities and municipalities where there
are no newspapers of local circulation, the same may be posted in
at least two (2) conspicuous and publicly accessible places.
(Emphasis supplied)
On October 17, 2011, respondent Quezon City Council enacted
Ordinance No. SP-2095, which provides that it would take effect
after its publication in a newspaper of general circulation.163 On the
other hand, Ordinance No. SP-2235, which was passed by the
City Council on December 16, 2013, provides that it would be
effective upon its approval.164
Ten (10) days after its enactment, or on December 26, 2013,
respondent City Mayor approved the same.165
The case records are bereft of any evidence to prove petitioner’s
negative allegation that respondents did not comply with the
posting and publication requirements of the law. Thus, We are
constrained not to give credit to his unsupported claim.
WHEREFORE, the petition is PARTIALLY GRANTED. The
constitutionality and legality of Ordinance No. SP-2095, S-2011, or
the "Socialized Housing Tax of Quezon City," is· SUSTAINED for
being consistent ·with Section·43 of Republic Act No. ·7279. On
the other hand, Ordinance No. SP-2235, S-2013, which collects an
annual garbage fee on all domestic households in Quezon City, is
hereby declared as UNCONSTITUTIONAL AND ILLEGAL.
Respondents are DIRECTED to REFUND with reasonable
dispatch the sums of money collected relative to its enforcement.
The temporary restraining order issued by the Court on February
5, 2014 is LIFTED with respect to Ordinance No. SP-2095. In
contrast, respondents are PERMANENTLY ENJOINED from
taking any further action to enforce Ordinance No. SP. 2235.
SO ORDERED.
G.R. No. 211833, April 07, 2015
FERDINAND R. VILLANUEVA, PRESIDING JUDGE, MCTC,
COMPOSTELA-NEW BATAAN, COMPOSTELA VALLEY
PROVINCE, Petitioner, v. JUDICIAL AND BAR
COUNCIL, Respondent.
DECISION
REYES, J.:
Presiding Judge Ferdinand R. Villanueva (petitioner) directly came to
this Court via a Petition for Prohibition, Mandamus, and Certiorari, and
Declaratory Relief1 under Rules 65 and 63 of the Rules of Court,
respectively, with prayer for the issuance of a temporary restraining
order and/or writ of preliminary injunction, to assail the policy of the
Judicial and Bar Council (JBC), requiring five years of service as judges
of first-level courts before they can qualify as applicant to second-level
courts, on the ground that it is unconstitutional, and was issued with
grave abuse of discretion.chanRoble svirtual Lawli brary
The Facts
The petitioner was appointed on September 18, 2012 as the Presiding
Judge of the Municipal Circuit Trial Court, Compostela-New Bataan,
Poblacion, Compostela Valley Province, Region XI, which is a first-level
court. On September 27, 2013, he applied for the vacant position of
Presiding Judge in the following Regional Trial Courts (RTCs): Branch
31, Tagum City; Branch 13, Davao City; and Branch 6, Prosperidad,
Agusan Del Sur.
In a letter2 dated December 18, 2013, JBC's Office of Recruitment,
Selection and Nomination, informed the petitioner that he was not
included in the list of candidates for the said stations. On the same
date, the petitioner sent a letter, through electronic mail, seeking
reconsideration of his non-inclusion in the list of considered applicants
and protesting the inclusion of applicants who did not pass the
prejudicature examination.
The petitioner was informed by the JBC Executive Officer, through a
letter3 dated February 3, 2014, that his protest and reconsideration was
duly noted by the JBC en banc. However, its decision not to include his
name in the list of applicants was upheld due to the JBC's long-standing
policy of opening the chance for promotion to second-level courts to,
among others, incumbent judges who have served in their current
position for at least five years, and since the petitioner has been a
judge only for more than a year, he was excluded from the list. This
caused the petitioner to take recourse to this Court.
In his petition, he argued that: (1) the Constitution already prescribed
the qualifications of an RTC judge, and the JBC could add no more; (2)
the JBC's five-year requirement violates the equal protection and due
process clauses of the Constitution; and (3) the JBC's five-year
requirement violates the constitutional provision on Social Justice and
Human Rights for Equal Opportunity of Employment. The petitioner also
asserted that the requirement of the Prejudicature Program mandated
by Section 104 of Republic Act (R.A.) No. 85575 should not be merely
directory and should be fully implemented. He further alleged that he
has all the qualifications for the position prescribed by the Constitution
and by Congress, since he has already complied with the requirement
of 10 years of practice of law.
In compliance with the Court's Resolution6 dated April 22, 2014, the
JBC7 and the Office of the Solicitor General (OSG)8separately submitted
their Comments. Summing up the arguments of the JBC and the OSG,
they essentially stated that the petition is procedurally infirm and that
the assailed policy does not violate the equal protection and due
process clauses. They posited that: (1) the writ of certiorari and
prohibition cannot issue to prevent the JBC from performing its principal
function under the Constitution to recommend appointees to the
Judiciary because the JBC is not a tribunal exercising judicial or quasi-
judicial function; (2) the remedy of mandamus and declaratory relief
will not lie because the petitioner has no clear legal right that needs to
be protected; (3) the equal protection clause is not violated because
the classification of lower court judges who have served at least five
years and those who have served less than five years is valid as it is
performance and experience based; and (4) there is no violation of due
process as the policy is merely internal in nature. chanRob lesvi rtual Lawli bra ry
The Issue
The crux of this petition is whether or not the policy of JBC requiring
five years of service as judges of first-level courts before they can
qualify as applicant to second-level courts is constitutional.
Ruling of the
Procedural Issues:
Before resolving the substantive issues, the Court considers it
necessary to first determine whether or not the action for certiorari,
prohibition and mandamus, and declaratory relief commenced by the
petitioner was proper.
One. The remedies of certiorari and prohibition are tenable. "The
present Rules of Court uses two special civil actions for determining and
correcting grave abuse of discretion amounting to lack or excess of
jurisdiction. These are the special civil actions for certiorari and
prohibition, and both are governed by Rule 65."9 As discussed in the
case of Maria Carolina P. Araullo, etc., et al. v. Benigno Simeon C.
Aquino III, etc., et al.,10 this Court explained that:
chanroble svirtual lawlib rary
With respect to the Court, however, the remedies of certiorari and
prohibition are necessarily broader in scope and reach, and the writ
of certiorari or prohibition may be issued to correct errors of jurisdiction
committed not only by a tribunal, corporation, board or officer
exercising judicial, quasi-judicial or ministerial functions but also to set
right, undo and restrain any act of grave abuse of discretion amounting
to lack or excess of jurisdiction by any branch or instrumentality of the
Government, even if the latter does not exercise judicial, quasi-judicial
or ministerial functions. This application is expressly authorized by the
text of the second paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to
raise constitutional issues and to review and/or prohibit or nullify the
acts of legislative and executive officials.11 (Citation omitted)
In this case, it is clear that the JBC does not fall within the scope of a
tribunal, board, or officer exercising judicial or quasi-judicial functions.
In the process of selecting and screening applicants, the JBC neither
acted in any judicial or quasi-judicial capacity nor assumed unto itself
any performance of judicial or quasi-judicial prerogative. However,
since the formulation of guidelines and criteria, including the policy that
the petitioner now assails, is necessary and incidental to the exercise of
the JBC's constitutional mandate, a determination must be made on
whether the JBC has acted with grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing and enforcing the said policy.
Besides, the Court can appropriately take cognizance of this case by
virtue of the Court's power of supervision over the JBC. Jurisprudence
provides that the power of supervision is the power of oversight, or the
authority to see that subordinate officers perform their duties. It
ensures that the laws and the rules governing the conduct of a
government entity are observed and complied with. Supervising officials
see to it that rules are followed, but they themselves do not lay down
such rules, nor do they have the discretion to modify or replace them.
Court If the rules are not observed, they may order the work done or redone,
but only to conform to such rules. They may not prescribe their own
manner of execution of the act. They have no discretion on this matter
except to see to it that the rules are followed.12
Following this definition, the supervisory authority of the Court over the
JBC is to see to it that the JBC complies with its own rules and
procedures. Thus, when the policies of the JBC are being attacked, then
the Court, through its supervisory authority over the JBC, has the duty
to inquire about the matter and ensure that the JBC complies with its
own rules.
Two. The remedy of mandamus cannot be availed of by the petitioner
in assailing JBC's policy. The petitioner insisted that mandamus is
proper because his right was violated when he was not included in the
list of candidates for the RTC courts he applied for. He said that his
non-inclusion in the list of candidates for these stations has caused him
direct injury.
It is essential to the issuance of a writ of mandamus that the applicant
should have a clear legal right to the thing demanded and it must be
the imperative duty of the respondent to perform the act
required.13 The petitioner bears the burden to show that there is such a
clear legal right to the performance of the act, and a corresponding
compelling duty on the part of the respondent to perform the act. The
remedy of mandamus, as an extraordinary writ, lies only to compel an
officer to perform a ministerial duty, not a discretionary one.14 Clearly,
the use of discretion and the performance of a ministerial act are
mutually exclusive.
The writ of mandamus does not issue to control or review the exercise
of discretion or to compel a course of conduct, which, it quickly seems
to us, was what the petitioner would have the JBC do in his favor. The
function of the JBC to select and recommend nominees for vacant
judicial positions is discretionary, not ministerial. Moreso, the petitioner
cannot claim any legal right to be included in the list of nominees for
judicial vacancies. Possession of the constitutional and statutory
qualifications for appointment to the judiciary may not be used to
legally demand that one's name be included in the list of candidates for
a judicial vacancy. One's inclusion in the list of the candidates depends
on the discretion of the JBC, thus:chanrob lesvi rtual lawlib rary
The fact that an individual possesses the constitutional and statutory
qualifications for appointment to the Judiciary does not create an
entitlement or expectation that his or her name be included in the list of
candidates for a judicial vacancy. By submitting an application or
accepting a recommendation, one submits to the authority of the JBC to
subject the former to the search, screening, and selection process, and
to use its discretion in deciding whether or not one should be included
in the list. Indeed, assuming that if one has the legal right to be
included in the list of candidates simply because he or she possesses
the constitutional and statutory qualifications, then the application
process would then be reduced to a mere mechanical function of the
JBC; and the search, screening, and selection process would not only be
unnecessary, but also improper. However, this is clearly not the
constitutional intent. One's inclusion in the list of candidates is
subject to the discretion of the JBC over the selection of
nominees for a particular judicial post. Such candidate's inclusion is
not, therefore, a legally demandable right, but simply a privilege the
conferment of which is subject to the JBC's sound discretion.
Moreover, petitioner is essentially seeking a promotional appointment,
that is, a promotion from a first-level court to a second level
court. There is no law, however, that grants him the right to a
promotion to second-level courts.15 (Emphasis in the original)
Clearly, to be included as an applicant to second-level judge is not
properly compellable by mandamus inasmuch as it involves the exercise
of sound discretion by the JBC.
Three. The petition for declaratory relief is improper. "An action for
declaratory relief should be filed by a person interested under a deed, a
will, a contract or other written instrument, and whose rights are
affected by a statute, an executive order, a regulation or an ordinance.
The relief sought under this remedy includes the interpretation and
determination of the validity of the written instrument and the judicial
declaration of the parties' rights or duties thereunder."16 "[T]he purpose
of the action is to secure an authoritative statement of the rights and
obligations of the parties under a statute, deed, contract, etc., for their
guidance in its enforcement or compliance and not to settle issues
arising from its alleged breach."17
In this case, the petition for declaratory relief did not involve an
unsound policy. Rather, the petition specifically sought a judicial
declaration that the petitioner has the right to be included in the list of
applicants although he failed to meet JBC's five-year requirement
policy. Again, the Court reiterates that no person possesses a legal right
under the Constitution to be included in the list of nominees for vacant
judicial positions. The opportunity of appointment to judicial office is a
mere privilege, and not a judicially enforceable right that may be
properly claimed by any person. The inclusion in the list of candidates,
which is one of the incidents of such appointment, is not a right either.
Thus, the petitioner cannot claim any right that could have been
affected by the assailed policy.
Furthermore, the instant petition must necessarily fail because this
Court does not have original jurisdiction over a petition for declaratory
relief even if only questions of law are involved.18 The special civil
action of declaratory relief falls under the exclusive jurisdiction of the
appropriate RTC pursuant to Section 1919 of Batas Pambansa Blg. 129,
as amended by R.A.No. 7691.20
Therefore, by virtue of the Court's supervisory duty over the JBC and in
the exercise of its expanded judicial power, the Court assumes
jurisdiction over the present petition. But in any event, even if the
Court will set aside procedural infirmities, the instant petition should
still be dismissed.
c hanRoble svirtual Lawlib ra ry
Substantive Issues
As an offspring of the 1987 Constitution, the JBC is mandated to
recommend appointees to the judiciary and only those nominated by
the JBC in a list officially transmitted to the President may be appointed
by the latter as justice or judge in the judiciary. Thus, the JBC is
burdened with a great responsibility that is imbued with public interest
as it determines the men and women who will sit on the judicial bench.
While the 1987 Constitution has provided the qualifications of members
of the judiciary, this does not preclude the JBC from having its own set
of rules and procedures and providing policies to effectively ensure its
mandate.
The functions of searching, screening, and selecting are necessary and
incidental to the JBC's principal function of choosing and recommending
nominees for vacancies in the judiciary for appointment by the
President. However, the Constitution did not lay down in precise terms
the process that the JBC shall follow in determining applicants'
qualifications. In carrying out its main function, the JBC has the
authority to set the standards/criteria in choosing its nominees for
every vacancy in the judiciary, subject only to the minimum
qualifications required by the Constitution and law for every position.
The search for these long held qualities necessarily requires a degree of
flexibility in order to determine who is most fit among the applicants.
Thus, the JBC has sufficient but not unbridled license to act in
performing its duties.
JBC's ultimate goal is to recommend nominees and not simply to fill up
judicial vacancies in order to promote an effective and efficient
administration of justice. Given this pragmatic situation, the JBC had to
establish a set of uniform criteria in order to ascertain whether an
applicant meets the minimum constitutional qualifications and
possesses the qualities expected of him and his office. Thus, the
adoption of the five-year requirement policy applied by JBC to the
petitioner's case is necessary and incidental to the function conferred by
the Constitution to the JBC.
Equal Protection
There is no question that JBC employs standards to have a rational
basis to screen applicants who cannot be all accommodated and
appointed to a vacancy in the judiciary, to determine who is best
qualified among the applicants, and not to discriminate against any
particular individual or class.
The equal protection clause of the Constitution does not require the
universal application of the laws to all persons or things without
distinction; what it requires is simply equality among equals as
determined according to a valid classification. Hence, the Court has
affirmed that if a law neither burdens a fundamental right nor targets a
suspect class, the classification stands as long as it bears a rational
relationship to some legitimate government end.21 ChanRobles Vi rt ualawlib ra ry
"The equal protection clause, therefore, does not preclude classification
of individuals who may be accorded different treatment under the law
as long as the classification is reasonable and not arbitrary."22 "The
mere fact that the legislative classification may result in actual
inequality is not violative of the right to equal protection, for every
classification of persons or things for regulation by law produces
inequality in some degree, but the law is not thereby rendered
invalid."23
That is the situation here. In issuing the assailed policy, the JBC merely
exercised its discretion in accordance with the constitutional
requirement and its rules that a member of the Judiciary must be of
proven competence, integrity, probity and independence.24"To ensure
the fulfillment of these standards in every member of the Judiciary, the
JBC has been tasked to screen aspiring judges and justices, among
others, making certain that the nominees submitted to the President
are all qualified and suitably best for appointment. In this way, the
appointing process itself is shielded from the possibility of extending
judicial appointment to the undeserving and mediocre and, more
importantly, to the ineligible or disqualified."25
Consideration of experience by JBC as one factor in choosing
recommended appointees does not constitute a violation of the equal
protection clause. The JBC does not discriminate when it employs
number of years of service to screen and differentiate applicants from
the competition. The number of years of service provides a relevant
basis to determine proven competence which may be measured by
experience, among other factors. The difference in treatment between
lower court judges who have served at least five years and those who
have served less than five years, on the other hand, was rationalized by
JBC as follows:chan roble svirtual lawlib rary
Formulating policies which streamline the selection process falls
squarely under the purview of the JBC. No other constitutional body is
bestowed with the mandate and competency to set criteria for
applicants that refer to the more general categories of probity, integrity
and independence.
The assailed criterion or consideration for promotion to a second-level
court, which is five years experience as judge of a first-level court, is a
direct adherence to the qualities prescribed by the Constitution. Placing
a premium on many years of judicial experience, the JBC is merely
applying one of the stringent constitutional standards requiring that a
member of the judiciary be of "proven competence." In determining
competence, the JBC considers, among other
qualifications, experience and performance.
Based on the JBC's collective judgment, those who have been judges of
first-level courts for five (5) years are better qualified for promotion to
second-level courts. It deems length of experience as a judge as
indicative of conversance with the law and court procedure. Five years
is considered as a sufficient span of time for one to acquire professional
skills for the next level court, declog the dockets, put in place improved
procedures and an efficient case management system, adjust to the
work environment, and gain extensive experience in the judicial
process.
A five-year stint in the Judiciary can also provide evidence of
the integrity, probity, and independence of judges seeking
promotion. To merit JBC's nomination for their promotion, they must
have had a "record of, and reputation for, honesty, integrity,
incorruptibility, irreproachable conduct, and fidelity to sound moral and
ethical standards." Likewise, their decisions must be reflective of the
soundness of their judgment, courage, rectitude, cold neutrality and
strength of character.
Hence, for the purpose of determining whether judges are worthy of
promotion to the next level court, it would be premature or difficult to
assess their merit if they have had less than one year of service on the
bench.26 (Citations omitted and emphasis in the original)
At any rate, five years of service as a lower court judge is not the only
factor that determines the selection of candidates for RTC judge to be
appointed by the President. Persons with this qualification are neither
automatically selected nor do they automatically become nominees. The
applicants are chosen based on an array of factors and are evaluated
based on their individual merits. Thus, it cannot be said that the
questioned policy was arbitrary, capricious, or made without any basis.
Clearly, the classification created by the challenged policy satisfies the
rational basis test. The foregoing shows that substantial distinctions do
exist between lower court judges with five year experience and those
with less than five years of experience, like the petitioner, and the
classification enshrined in the assailed policy is reasonable and relevant
to its legitimate purpose. The Court, thus, rules that the questioned
policy does not infringe on the equal protection clause as it is based on
reasonable classification intended to gauge the proven competence of
the applicants. Therefore, the said policy is valid and constitutional.
Due Process
The petitioner averred that the assailed policy violates procedural due
process for lack of publication and non-submission to the University of
the Philippines Law Center Office of the National Administrative Register
(ONAR). The petitioner said that the assailed policy will affect all
applying judges, thus, the said policy should have been published.
Contrary to the petitioner's contention, the assailed JBC policy need not
be filed in the ONAR because the publication requirement in the ONAR
is confined to issuances of administrative agencies under the Executive
branch of the government.27 Since the JBC is a body under the
supervision of the Supreme Court,28 it is not covered by the publication
requirements of the Administrative Code.
Nevertheless, the assailed JBC policy requiring five years of service as
judges of first-level courts before they can qualify as applicants to
second-level courts should have been published. As a general rule,
publication is indispensable in order that all statutes, including
administrative rules that are intended to enforce or implement existing
laws, attain binding force and effect. There are, however, several
exceptions to the requirement of publication, such as interpretative
regulations and those merely internal in nature, which regulate only the
personnel of the administrative agency and not the public. Neither is
publication required of the so-called letters of instructions issued by
administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties.29
Here, the assailed JBC policy does not fall within the administrative
rules and regulations exempted from the publication requirement. The
assailed policy involves a qualification standard by which the JBC shall
determine proven competence of an applicant. It is not an internal
regulation, because if it were, it would regulate and affect only the
members of the JBC and their staff. Notably, the selection process
involves a call to lawyers who meet the qualifications in the Constitution
and are willing to serve in the Judiciary to apply to these vacant
positions. Thus, it is but a natural consequence thereof that potential
applicants be informed of the requirements to the judicial positions, so
that they would be able to prepare for and comply with them.
The Court also noted the fact that in JBC-009, otherwise known as the
Rules of the Judicial and Bar Council, the JBC had put its criteria in
writing and listed the guidelines in determining competence,
independence, integrity and probity. Section 1, Paragraph 1 of Rule 9
expressly provides that applicants for the Court of Appeals and
the Sandiganbayan, should, as a general rule, have at least five years
of experience as an RTC judge, thus: chanrob lesvi rtua llawlib ra ry
RULE 9 - SPECIAL GUIDELINES FOR NOMINATION TO A VACANCY IN
THE COURT OF APPEALS AND SANDIGANBAYAN
Section 1. Additional criteria for nomination to the Court of Appeals
and the Sandiganbayan. - In addition to the foregoing guidelines the
Council should consider the following in evaluating the merits of
applicants for a vacancy in the Court of Appeals and Sandiganbayan:
1. As a general rule, he must have at least five years of experience
as a judge of Regional Trial Court, except when he has in his favor
outstanding credentials, as evidenced by, inter alia, impressive
scholastic or educational record and performance in the Bar
examinations, excellent reputation for honesty, integrity, probity and
independence of mind; at least very satisfactory performance rating for
three (3) years preceding the filing of his application for nomination;
and excellent potentials for appellate judgeship.
x x x x (Emphasis ours)
The express declaration of these guidelines in JBC-009, which have
been duly published on the website of the JBC and in a newspaper of
general circulation suggests that the JBC is aware that these are not
mere internal rules, but are rules implementing the Constitution that
should be published. Thus, if the JBC were so-minded to add special
guidelines for determining competence of applicants for RTC judges,
then it could and should have amended its rules and published the
same. This, the JBC did not do as JBC-009 and its amendatory rule do
not have special guidelines for applicants to the RTC.
Moreover, jurisprudence has held that rules implementing a statute
should be published. Thus, by analogy, publication is also required for
the five-year requirement because it seeks to implement a
constitutional provision requiring proven competence from members of
the judiciary.
Nonetheless, the JBC's failure to publish the assailed policy has not
prejudiced the petitioner's private interest. At the risk of being
repetitive, the petitioner has no legal right to be included in the list of
nominees for judicial vacancies since the possession of the
constitutional and statutory qualifications for appointment to the
Judiciary may not be used to legally demand that one's name be
included in the list of candidates for a judicial vacancy. One's inclusion
in the shortlist is strictly within the discretion of the JBC.30
As to the issue that the JBC failed or refused to implement the
completion of the prejudicature program as a requirement for
appointment or promotion in the judiciary under R.A. No. 8557, this
ground of the petition, being unsubstantiated, was unfounded. Clearly,
it cannot be said that JBC unlawfully neglects the performance of a duty
enjoined by law.
Finally, the petitioner argued but failed to establish that the assailed
policy violates the constitutional provision under social justice and
human rights for equal opportunity of employment. The OSG
explained: c hanroblesv irt uallawl ibra ry
[T]he questioned policy does not violate equality of employment
opportunities. The constitutional provision does not call for appointment
to the Judiciary of all who might, for any number of reasons, wish to
apply. As with all professions, it is regulated by the State. The office of
a judge is no ordinary office. It is imbued with public interest and is
central in the administration of justice x x x. Applicants who meet the
constitutional and legal qualifications must vie and withstand the
competition and rigorous screening and selection process. They must
submit themselves to the selection criteria, processes and discretion of
respondent JBC, which has the constitutional mandate of screening and
selecting candidates whose names will be in the list to be submitted to
the President. So long as a fair opportunity is available for all applicants
who are evaluated on the basis of their individual merits and abilities,
the questioned policy cannot be struck down as
unconstitutional.31 (Citations omitted)
From the foregoing, it is apparent that the petitioner has not
established a clear legal right to justify the issuance of a preliminary
injunction. The petitioner has merely filed an application with the JBC
for the position of RTC judge, and he has no clear legal right to be
nominated for that office nor to be selected and included in the list to
be submitted to the President which is subject to the discretion of the
JBC. The JBC has the power to determine who shall be recommended to
the judicial post. To be included in the list of applicants is a privilege as
one can only be chosen under existing criteria imposed by the JBC
itself. As such, prospective applicants, including the petitioner, cannot
claim any demandable right to take part in it if they fail to meet these
criteria. Hence, in the absence of a clear legal right, the issuance of an
injunctive writ is not justified.
As the constitutional body granted with the power of searching for,
screening, and selecting applicants relative to recommending
appointees to the Judiciary, the JBC has the authority to determine how
best to perform such constitutional mandate. Pursuant to this authority,
the JBC issues various policies setting forth the guidelines to be
observed in the evaluation of applicants, and formulates rules and
guidelines in order to ensure that the rules are updated to respond to
existing circumstances. Its discretion is freed from legislative, executive
or judicial intervention to ensure that the JBC is shielded from any
outside pressure and improper influence. Limiting qualified applicants in
this case to those judges with five years of experience was an exercise
of discretion by the JBC. The potential applicants, however, should have
been informed of the requirements to the judicial positions, so that they
could properly prepare for and comply with them. Hence, unless there
are good and compelling reasons to do so, the Court will refrain from
interfering with the exercise of JBC's powers, and will respect the
initiative and independence inherent in the latter.
c ralawre d
WHEREFORE, premises considered, the petition is DISMISSED. The
Court, however, DIRECTS that the Judicial and Bar Council comply with
the publication requirement of (1) the assailed policy requiring five
years of experience as judges of first-level courts before they can
qualify as applicant to the Regional Trial Court, and (2) other special
guidelines that the Judicial and Bar Council is or will be implementing.
SO ORDERED. chanroblesvi rtua llawli bra ry
G.R. No. 206020, April 14, 2015
1-UNITED TRANSPORT KOALISYON (1-
UTAK), Petitioner, v. COMMISSION ON ELECTIONS, Respondent.
DECISION
REYES, J.:
The right to participate in electoral processes is a basic and
fundamental right in any democracy. It includes not only the right to
vote, but also the right to urge others to vote for a particular candidate.
The right to express one's preference for a candidate is likewise part of
the fundamental right to free speech. Thus, any governmental
restriction on the right to convince others to vote for a candidate carries
with it a heavy presumption of invalidity.
This is a petition for certiorari1 under Rule 64 and Rule 65 of the Rules
of Court filed by 1-United Transport Koalisyon (petitioner), a party-list
organization, assailing Section 7(g) items (5) and (6), in relation to
Section 7(f), of Resolution No. 96152 of the Commission on Elections
(COMELEC).
The Facts
On February 12, 2001, Republic Act (R.A.) No. 9006, otherwise known
as the "Fair Elections Act", was passed. Section 9 thereof provides:
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize
political parties and party-list groups to erect common poster areas for
their candidates in not more than ten (10) public places such as plazas,
markets, barangay centers and the like, wherein candidates can post,
display or exhibit election propaganda: Provided that the size of the
poster areas shall not exceed twelve (12) by sixteen (16) feet or its
equivalent.
Independent candidates with no political parties may likewise be
authorized to erect common poster areas in not more than ten (10)
public places, the size of which shall not exceed four (4) by six (6) feet
or its equivalent.
Candidates may post any lawful propaganda material in private places
with the consent of the owner thereof, and in public places or property
which shall be allocated equitably and impartially among the
candidates.
On January 15, 2013, the COMELEC promulgated Resolution No. 9615,
which provided for the rules implementing R.A. No. 9006 in connection
with the May 13, 2013 national and local elections and subsequent
elections. Section 7 thereof, which enumerates the prohibited forms of
election propaganda, pertinently provides:
SEC. 7. Prohibited Forms of Election Propaganda. - During the
campaign period, it is unlawful:
x x x x
(f) To post, display or exhibit any election campaign or propaganda
material outside of authorized common poster areas, in public places,
or in private properties without the consent of the owner thereof.
(g) Public places referred to in the previous subsection (f) include any
of the following:
x x x x
5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs,
ferries, pedicabs and tricycles, whether motorized or not;
6. Within the premises of public transport terminals, such as bus
terminals, airports, seaports, docks, piers, train stations, and the like.
The violation of items [5 and 6] under subsection (g) shall be a cause
for the revocation of the public utility franchise and will make the owner
and/or operator of the transportation service and/or terminal liable for
an election offense under Section 9 of Republic Act No. 9006 as
implemented by Section 18 (n) of these Rules.3
In its letter4 dated January 30, 2013, the petitioner, through its
president, Melencio F. Vargas, sought clarification from the COMELEC as
regards the application of Resolution No. 9615, particularly Section 7(g)
items (5) and (6), in relation to Section 7(f), vis-a-vis privately owned
public utility vehicles (PUVs) and transport terminals. The petitioner
explained that the prohibition stated in the aforementioned provisions
impedes the right to free speech of the private owners of PUVs and
transport terminals. The petitioner then requested the COMELEC to
reconsider the implementation of the assailed provisions and allow
private owners of PUVs and transport terminals to post election
campaign materials on their vehicles and transport terminals.
On February 5, 2013, the COMELEC en banc issued Minute Resolution
No. 13-0214,5 which denied the petitioner's request to reconsider the
implementation of Section 7(g) items (5) and (6), in relation to Section
7(f), of Resolution No. 9615. The COMELEC en banc, adopting the
recommendation of Commissioner Christian Robert S. Lim, opined that:
From the foregoing, x x x the primary fact in consideration here is
actually whether 1 -UTAK or any other [PUV] owners in the same
position do in fact possess a franchise and/or certificate of public
convenience and operate as a public utility. If it does not, then the
ruling in Adiong applies squarely. If it does, then its operations,
pursuant to Section 4, Article IX-C of the Constitution, will be placed
directly under the supervision and regulation of the Commission for the
duration of the election period so as to ensure equality of opportunity,
time, and space for all candidates in the placement of political
advertisements. Having placed their property for use by the general
public and having secured a license or permit to do so, 1-UTAK and
other PUV owners, as well as transport terminal owners, cannot now
complain that their property is subject to regulation by the State.
Securing a franchise or a certificate of public convenience in their favor
does not exempt them from the burdens imposed by the Constitution,
Republic Act No. 9006 x x x, and other related statutes. It must be
stressed that the Constitution itself, under Section 6, Article XII,
commands that the use of property bears a social function and all
economic agents shall contribute to the common good; and there
is no higher Common good than that as espoused in R.A. No. 9006 -
the equalization of opportunities for all candidates for political office
during elections - a policy which Res. No. 9615 merely implements.
As required in Adiong, and in compliance with the O'Brien standards,
the prohibition furthers two important and substantial governmental
interests - equalizing opportunity, time, and space for all candidates,
and putting to a stop excessive campaign spending. The regulation
bears a clear and reasonable nexus with these Constitutionally- and
statutorily-sanctioned objectives, and the infringement of freedom is
merely incidental and limited as to time. The Commission has not taken
away all avenues of expression available to PUV and transport terminal
owners. They may express their political preferences elsewhere.
The exact purpose for placing political advertisements on a PUV or in
transport terminals is exactly because it is public and can be seen by
all; and although it is true that private vehicles ply the same route as
public vehicles, the exposure of a [PUV] servicing the general, riding
public is much more compared to private vehicles. Categorizing PUVs
and transport terminals as 'public places' under Section 7 (f) of
Reso. No. 9615 is therefore logical. The same reasoning for limiting
political advertisements in print media, in radio, and in television
therefore holds true for political advertisements in PUVs and transport
terminals.6
Hence, the instant petition.
Arguments of the Petitioner
The petitioner maintains that Section 7(g) items (5) and (6), in relation
to Section 7(f), of Resolution No. 9615 violate the right to free speech
of the owners of PUVs and transport terminals; that the prohibition
curtails their ideas of who should be voted by the public. The petitioner
also claims that there is no substantial public interest threatened by the
posting of political advertisements on PUVs and transport terminals to
warrant the prohibition imposed by the COMELEC. Further, the
petitioner posits that the ownership of the PUVs per se, as well as the
transport terminals, remains private and, hence, the owners thereof
could not be prohibited by the COMELEC from expressing their political
opinion lest their property rights be unduly intruded upon.
Further, assuming that substantial public interest exists in the said
prohibition imposed under Resolution No. 9615, the petitioner claims
that the curtailment of the right to free speech of the owners of PUVs
and transport terminals is much greater than is necessary to achieve
the desired governmental purpose, i.e., ensuring equality of opportunity
to all candidates in elective office.
Arguments of COMELEC
On the other hand, the COMELEC posits that privately-owned PUVs and
transport terminals are public spaces that are subject to its regulation.
It explains that under the Constitution, the COMELEC has the power to
enforce and administer all laws and regulations relative to the conduct
of an election, including the power to regulate the enjoyment or
utilization of all franchises and permits for the operation of
transportation utilities.
The COMELEC points out that PUVs and private transport terminals hold
a captive audience - the commuters, who have no choice but be
subjected to the blare of political propaganda. Thus, the COMELEC
avers, it is within its constitutional authority to prevent privately-owned
PUVs and transport terminals from concurrently serving campaign
materials to the captive audience that they transport.
The COMELEC further claims that Resolution No. 9615 is a valid
content-neutral regulation and, thus, does not impinge on the
constitutional right to freedom of speech. It avers that the assailed
regulation is within the constitutional power of the COMELEC pursuant
to Section 4, Article IX-C of the Constitution. The COMELEC alleges that
the regulation simply aims to ensure equal campaign opportunity, time,
and space for all candidates - an important and substantial
governmental interest, which is totally unrelated to the suppression of
free expression; that any restriction on free speech is merely incidental
and is no greater than is essential to the furtherance of the said
governmental interest.
The Issue
The petitioner presents the following issues for the Court's resolution:
I. [WHETHER] RESOLUTION NO. 9615 VIOLATES THE RIGHT TO FREE
SPEECH OF THE OWNERS OF [PUVs] AND TRANSPORT TERMINALS.
II. [WHETHER] RESOLUTION NO. 9615 IS VOID AS A RESTRAINT TO
FREE SPEECH AND EXPRESSION FOR FAILURE TO SATISFY THE
O'BRIEN TEST.
III. [WHETHER] THE CONSTITUTIONAL OBJECTIVE TO GIVE AN EQUAL whatever the form of censorship, and regardless of whether it is
OPPORTUNITY TO INFORM THE ELECTORATE IS NOT IMPAIRED BY wielded by the executive, legislative or judicial branch of the
POSTING POLITICAL ADVERTISEMENTS ON PUVs AND TRANSPORT government.10 Any system of prior restraints of expression comes to
TERMINALS. this Court bearing a heavy presumption against its validity.11

IV. [WHETHER] THE OWNERSHIP OF FACILITIES IS DIFFERENT AND
INDEPENDENT FROM THE FRANCHISE OR OPERATION OF THE PUBLIC
UTILITY, THE FORMER BEING BEYOND THE POWER OF REGULATION BY
THE COMELEC.7
In sum, the issue presented for the Court's resolution is whether
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution
No. 9615, which prohibits the posting of any election campaign or
propaganda material, inter alia, in PUVs and public transport terminals
are valid regulations.
Ruling of the Court
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution
No. 9615 unduly infringe on the fundamental right of the people to
freedom of speech. Central to the prohibition is the freedom of
individuals, i.e., the owners of PUVs and private transport terminals, to
express their preference, through the posting of election campaign
material in their property, and convince others to agree with them.
Pursuant to the assailed provisions of Resolution No. 9615, posting an
election campaign material during an election period in PUVs and
transport terminals carries with it the penalty of revocation of the public
utility franchise and shall make the owner thereof liable for an election
offense.

The petition is meritorious. The prohibition constitutes a clear prior restraint on the right to free
expression of the owners of PUVs and transport terminals. As a result of
Resolution No. 9615, which was promulgated pursuant to Section 4, the prohibition, owners of PUVs and transport terminals are forcefully
Article IX-C of the Constitution and the provisions of R.A. No. 9006, lays and effectively inhibited from expressing their preferences under the
down the administrative rules relative to the COMELEC's exercise of its pain of indictment for an election offense and the revocation of their
supervisory and regulatory powers over all franchises and permits for franchise or permit to operate.
the operation of transportation and other public utilities, media of
communication or information, and all grants, special privileges, or It is now deeply embedded in our jurisprudence that freedom of speech
concessions granted by the Government. and of the press enjoys a preferred status in our hierarchy of rights.
The rationale is that the preservation of other rights depends on how
Like any other administrative regulations, Resolution No. 9615, or any well we protect our freedom of speech and of the press.12 It has been
part thereof, must not run counter to the Constitution. It is basic that if our constant holding that this preferred freedom calls all the more for
a law or an administrative rule violates any norm of the Constitution, utmost respect when what may be curtailed is the dissemination of
that issuance is null and void and has no effect. The Constitution is the information to make more meaningful the equally vital right of
basic law to which all laws must conform; no act shall be valid if it suffrage.13
conflicts with the Constitution.8 In this regard, an administrative
regulation, even if it purports to advance a legitimate governmental Thus, in Adiong v. COMELEC,14 the Court struck down the COMELEC's
interest, may not be permitted to run roughshod over the cherished prohibition against the posting of decals and stickers on "mobile
rights of the people enshrined in the Constitution. places." The Court ratiocinated that:

Section 7(g) items (5) and (6), in Significantly, the freedom of expression curtailed by the questioned
relation to Section 7(f), of Resolution No. prohibition is not so much that of the candidate or the political
9615 are prior restraints on speech. party. The regulation strikes at the freedom of an individual to
express his preference and, by displaying it on his car, to
Free speech may be identified with the liberty to discuss publicly and convince others to agree with him. A sticker may be furnished by a
truthfully any matter of public concern without prior restraint or candidate but once the car owner agrees to have it placed on his
censorship and subsequent punishment.9 Prior restraint refers to official private vehicle, the expression becomes a statement by the owner,
governmental restrictions on the press or other forms of expression in primarily his own and not of anybody else. If, in the National Press
advance of actual publication or dissemination. Freedom from prior Club case, the Court was careful to rule out restrictions on reporting by
restraint is largely freedom from government censorship of publications, newspaper or radio and television stations and commentators or
columnists as long as these are not correctly paid-for advertisements or the franchise or permit to operate and
purchased opinions with less reason can we sanction the not the ownership per se of PUVs
prohibition against a sincere manifestation of support and a and transport terminals.
proclamation of belief by an individual person who pastes a
sticker or decal on his private property.15 (Emphases ours) The prohibition under Section 7(g) items (5) and (6), in relation to
Section 7(f), of Resolution No. 9615 is not within the COMELEC's
The assailed prohibition on posting constitutionally delegated power of supervision or regulation. It is not
election campaign materials is an disputed that the COMELEC has the power to supervise or regulate the
invalid content-neutral regulation enjoyment or utilization of all franchises or permits for the operation of
repugnant to the free speech clause. transportation utilities during an election period. Section 4, Article IX-C
of the Constitution, thus provides:
The COMELEC claims that while Section 7(g) items (5) and (6) of
Resolution No. 9615 may incidentally restrict the right to free speech of Section 4. The Commission may, during the election period, supervise
owners of PUVs and transport terminals, the same is nevertheless or regulate the enjoyment or utilization of all franchises or permits for
constitutionally permissible since it is a valid content-neutral regulation. the operation of transportation and other public utilities, media of
The Court does not agree. communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, or
A content-neutral regulation, i.e., which is merely concerned with the instrumentality thereof, including any government-owned or controlled
incidents of the speech, or one that merely controls the time, place or corporation or its subsidiary. Such supervision or regulation shall aim to
manner, and under well-defined standards,16 is constitutionally ensure equal opportunity, time, and space, and the right to reply,
permissible, even if it restricts the right to free speech, provided that including reasonable, equal rates therefor, for public information
the following requisites concur: first, the government regulation is campaigns and forums among candidates in connection with the
within the constitutional power of the Government; second, it furthers objective of holding free, orderly, honest, peaceful, and credible
an important or substantial governmental interest; third, the elections.
governmental interest is unrelated to the suppression of free
expression; and fourth, the incidental restriction on freedom of Nevertheless, the constitutional grant of supervisory and regulatory
expression is no greater than is essential to the furtherance of that powers to the COMELEC over franchises and permits to operate, though
interest.17 seemingly unrestrained, has its limits. Notwithstanding the ostensibly
broad supervisory and regulatory powers granted to the COMELEC
Section 7(g) items (5) and (6) of Resolution No. 9615 are content- during an election period under Section 4, Article IX-C of the
neutral regulations since they merely control the place where election Constitution, the Court had previously set out the limitations thereon.
campaign materials may be posted. However, the prohibition is still In Adiong, the Court, while recognizing that the COMELEC has
repugnant to the free speech clause as it fails to satisfy all of the supervisory power vis-a-vis the conduct and manner of elections under
requisites for a valid content-neutral regulation. Section 4, Article IX-C of the Constitution, nevertheless held that such
supervisory power does not extend to the very freedom of an individual
It is conceded that Resolution No. 9615, including the herein assailed to express his preference of candidates in an election by placing
provisions, furthers an important and substantial governmental election campaign stickers on his vehicle.
interest, i.e., ensuring equal opportunity, time and space among
candidates aimed at the holding of free, orderly, honest, peaceful, and In National Press Club v. COMELEC,18 while the Court upheld the
credible elections. It is further conceded that the governmental interest constitutionality of a prohibition on the selling or giving free of charge,
in imposing the said prohibition is unrelated to the suppression of free except to the COMELEC, of advertising space and commercial time
expression. However, Section 7(g) items (5) and (6), in relation to during an election period, it was emphasized that the grant of
Section 7(f), of Resolution No. 9615, are not within the constitutionally supervisory and regulatory powers to the COMELEC under Section 4,
delegated power of the COMELEC under Section 4, Article IX-C of the Article IX-C of the Constitution, is limited to ensuring equal opportunity,
Constitution. Also, there is absolutely no necessity to restrict the right time, space, and the right to reply among candidates.
to free speech of the owners of PUVs and transport terminals.
Further, in Social Weather Stations, Inc. v. COMELEC,19 the Court,
The COMELEC may only regulate notwithstanding the grant of supervisory and regulatory powers to the
COMELEC under Section 4, Article IX-C of the Constitution, declared
unconstitutional a regulation prohibiting the release of election surveys
prior to the election since it "actually suppresses a whole class of
expression, while allowing the expression of opinion concerning the
same subject matter by newspaper columnists, radio and [television
(TV)] commentators, armchair theorists, and other opinion makers."20
In the instant case, the Court further delineates the constitutional grant
of supervisory and regulatory powers to the COMELEC during an
election period. As worded, Section 4, Article IX-C of the Constitution
only grants COMELEC supervisory and regulatory powers over the
enjoyment or utilization "of all franchises or permits for the
operation," inter alia, of transportation and other public utilities. The
COMELEC's constitutionally delegated powers of supervision and
regulation do not extend to the ownership per se of PUVs and transport
terminals, but only to the franchise or permit to operate the same.
There is a marked difference between the franchise or permit to operate
transportation for the use of the public and the ownership per se of the
vehicles used for public transport. Thus, in Tatad v. Garcia, Jr.,21 the
Court explained that:
What private respondent owns are the rail tracks, rolling stocks like the
coaches, rail stations, terminals and the power plant, not a public
utility. While a franchise is needed to operate these facilities to serve
the public, they do not by themselves constitute a public utility. What
constitutes a public utility is not their ownership but their use to serve
the public x x x.
The Constitution, in no uncertain terms, requires a franchise for the
operation of a public utility. However, it does not require a franchise
before one can own the facilities needed to operate a public utility so
long as it does not operate them to serve the public.
x x x x
In law, there is a clear distinction between the "operation" of a
public utility and the ownership of the facilities and equipment
used to serve the public.
x x x x
The right to operate a public utility may exist independently and
separately from the ownership of the facilities thereof. One can
own said facilities without operating them as a public utility, or
conversely, one may operate a public utility without owning the
facilities used to serve the public. The devotion of property to serve
the public may be done by the owner or by the person in control thereof
who may not necessarily be the owner thereof.
This dichotomy between the operation of a public utility and the
ownership of the facilities used to serve the public can be very well
appreciated when we consider the transportation industry. Enfranchised
airline and shipping companies may lease their aircraft and vessels
instead of owning them themselves.22 (Emphases ours)
The franchise or permit to operate transportation utilities is a privilege
granted to certain persons to engage in the business of transporting
people or goods; it does not refer to the ownership of the vehicle per
se. Ownership is a relation in private law by virtue of which a thing
pertaining to one person is completely subjected to his will in
everything not prohibited by public law or the concurrence with the
rights of another.23 Thus, the owner of a thing has the right to enjoy
and dispose of a thing, without other limitations than those established
by law.24
One such limitation established by law, as regards PUVs, is the
franchise or permit to operate. However, a franchise or permit to
operate a PUV is a limitation only on certain aspects of the ownership of
the vehicle pertinent to the franchise or permit granted, but not on the
totality of the rights of the owner over the vehicle. Otherwise stated, a
restriction on the franchise or permit to operate transportation utilities
is necessarily a limitation on ownership, but a limitation on the rights of
ownership over the PUV is not necessarily a regulation on the franchise
or permit to operate the same.
A franchise or permit to operate transportation utilities pertains to
considerations affecting the operation of the PUV as such, e.g., safety
of the passengers, routes or zones of operation, maintenance of the
vehicle, of reasonable fares, rates, and other charges, or, in certain
cases, nationality.25 Thus, a government issuance, which purports to
regulate a franchise or permit to operate PUVs, must pertain to the
considerations affecting its operation as such. Otherwise, it becomes a
regulation or supervision not on the franchise or permit to operate, but
on the very ownership of the vehicle used for public transport.
The expression of ideas or opinion of an owner of a PUV, through the
posting of election campaign materials on the vehicle, does not affect
considerations pertinent to the operation of the PUV. Surely, posting a
decal expressing support for a certain candidate in an election will not
in any manner affect the operation of the PUV as such. Regulating the
expression of ideas or opinion in a PUV, through the posting of an
election campaign material thereon, is not a regulation of the franchise
or permit to operate, but a regulation on the very ownership of the
vehicle.
The dichotomy between the regulation of the franchise or permit to political purposes, except to the COMELEC, during the election
operate of a PUV and that of the very ownership thereof is better campaign. The COMELEC averred that if the legislature can empower it
exemplified in the case of commercial advertisements posted on the to impose an advertising ban on mass media, it could likewise empower
vehicle. A prohibition on the posting of commercial advertisements on a it to impose a similar ban on PUVs and transport terminals.
PUV is considered a regulation on the ownership of the vehicle per se;
the restriction on the enjoyment of the ownership of the vehicle does The Court does not agree.
not have any relation to its operation as a PUV.
The restriction imposed under Section ll(b) of R.A. No. 6646 has a
On the other hand, prohibitions on the posting of commercial direct relation to the enjoyment and utilization of the franchise or
advertisements on windows of buses, because it hinders police permit to operate of newspapers, radio broadcasting and TV stations,
authorities from seeing whether the passengers inside are safe, is a and other mass media, which the COMELEC has the power to regulate
regulation on the franchise or permit to operate. It has a direct relation pursuant to Section 4, Article IX-C of the Constitution. The print space
to the operation of the vehicle as a PUV, i.e., the safety of the or airtime is an integral part of the franchise or permit to operate of
passengers. mass media utilities. Thus, the restriction under Section ll(b) of R.A. No.
6646 is within the confines of the constitutionally delegated power of
In the same manner, the COMELEC does not have the constitutional the COMELEC under Section 4, Article IX-C of the Constitution.
power to regulate public transport terminals owned by private persons.
The ownership of transport terminals, even if made available for use by On the other hand, the prohibition on the posting of election campaign
the public commuters, likewise remains private. Although owners of materials under Section 7(g) items (5) and (6) of Resolution No. 9615,
public transport terminals may be required by local governments to as already explained, does not have any relation to the franchise or
obtain permits in order to operate, the permit only pertains to permit of PUVs and transport terminals to operate as such and, hence,
circumstances affecting the operation of the transport terminal as such. is beyond the power of the COMELEC under Section 4, Article IX-C of
The regulation of such permit to operate should similarly be limited to the Constitution.
circumstances affecting the operation of the transport terminal. A
regulation of public transport terminals based on extraneous The restriction on free speech of
circumstances, such as prohibiting the posting of election campaign owners of PUVs and transport
materials thereon, amounts to regulating the ownership of the transport terminals is not necessary to
terminal and not merely the permit to operate the same. further the stated governmental
interest.
Accordingly, Section 7(g) items (5) and (6) of Resolution No. 9615 are
not within the constitutionally delegated power of the COMELEC to Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed to
supervise or regulate the franchise or permit to operate of satisfy the fourth requisite of a valid content-neutral regulation, i.e., the
transportation utilities. The posting of election campaign material on incidental restriction on freedom of expression is no greater than is
vehicles used for public transport or on transport terminals is not only a essential to the furtherance of that interest. There is absolutely no
form of political expression, but also an act of ownership - it has necessity to restrict the right of the owners of PUVs and transport
nothing to do with the franchise or permit to operate the PUV or terminals to free speech to further the governmental interest. While
transport terminal. ensuring equality of time, space, and opportunity to candidates is an
important and substantial governmental interest and is essential to the
The rulings in National Press Club conduct of an orderly election, this lofty aim may be achieved sans any
and Osmena v. COMELEC26 intrusion on the fundamental right of expression.
find no application to this case.
First, while Resolution No. 9615 was promulgated by the COMELEC to
The COMELEC pointed out that the issue presented in the instant case is implement the provisions of R.A. No. 9006, the prohibition on posting of
akin to the Court's rulings in National Press Club and Osmeña. It election campaign materials on PUVs and transport terminals was not
explained that in both cases, the Court sustained Section II(b) of R.A. provided for therein.
No. 6646 or the Electoral Reforms Law of 1997, which prohibits
newspapers, radio broadcasting or TV stations, and other mass media Second, there are more than sufficient provisions in our present
from selling or giving print space or airtime for campaign or other election laws that would ensure equal time, space, and opportunity to
candidates in elections. Section 6 of R.A. No. 9006 mandates that "all
registered parties and bona fide candidates shall have equal access to
media time and space" and outlines the guidelines to be observed in the
implementation thereof, viz:
Section 6. Equal Access to Media Time and Space. - All registered
parties and bona fide candidates shall have equal access to media time
and space. The following guidelines may be amplified on by the
COMELEC:
6.1 Print advertisements shall not exceed one-fourth (1/4) page in
broadsheet and one-half (1/2) page in tabloids thrice a week per
newspaper, magazine or other publications, during the campaign
period.
6.2 a. Each bona fide candidate or registered political party for a
nationally elective office shall be entitled to not more than one hundred
twenty (120) minutes of television advertisement and one hundred
eighty (180) minutes of radio advertisement whether by purchase or
donation.
b. Each bona fide candidate or registered political party for a locally
elective office shall be entitled to not more than sixty (60) minutes of
television advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or
entity to submit to the COMELEC a copy of its broadcast logs and
certificates of performance for the review and verification of the
frequency, date, time and duration of advertisements broadcast for any
candidate or political party.
6.3 All mass media entities shall furnish the COMELEC with a copy of
all contracts for advertising, promoting or opposing any political party
or the candidacy of any person for public office within five (5) days after
its signing. In every case, it shall be signed by the donor, the candidate
concerned or by the duly authorized representative of the political
party.
6.4 No franchise or permit to operate a radio or television station shall
be granted or issued, suspended or cancelled during the election period.
In all instances, the COMELEC shall supervise the use and employment
of press, radio and television facilities insofar as the placement of
political advertisements is concerned to ensure that candidates are
given equal opportunities under equal circumstances to make known
their qualifications and their stand on public issues within the limits set
forth in the Omnibus Election Code and Republic Act No. 7166 on
election spending.
The COMELEC shall ensure that radio or television or cable television
broadcasting entities shall not allow the scheduling of any program or
permit any sponsor to manifestly favor or oppose any candidate or
political party by unduly or repeatedly referring to or including said
candidate and/or political party in such program respecting, however, in
all instances the right of said broadcast entities to air accounts of
significant news or news worthy events and views on matters of public
interest.
6.5 All members of media, television, radio or print, shall scrupulously
report and interpret the news, taking care not to suppress essential
facts nor to distort the truth by omission or improper emphasis. They
shall recognize the duty to air the other side and the duty to correct
substantive errors promptly.
6.6 Any mass media columnist, commentator, announcer, reporter,
on-air correspondent or personality who is a candidate for any elective
public office or is a campaign volunteer for or employed or retained in
any capacity by any candidate or political party shall be deemed
resigned, if so required by their employer, or shall take a leave of
absence from his/her work as such during the campaign period:
Provided, That any media practitioner who is an official of a political
party or a member of the campaign staff of a candidate or political
party shall not use his/her time or space to favor any candidate or
political party.
6.7 No movie, cinematograph or documentary portraying the life or
biography of a candidate shall be publicly exhibited in a theater,
television station or any public forum during the campaign period.
6.8 No movie, cinematograph or documentary portrayed by an actor or
media personality who is himself a candidate shall likewise be publicly
exhibited in a theater or any public forum during the campaign period.
Section 9 of R.A. No. 9006 authorizes political parties and party-list
groups and independent candidates to erect common poster areas and
candidates to post lawful election campaign materials in private places,
with the consent of the owner thereof, and in public places or property,
which are allocated equitably and impartially.
Further, Section 1327 of R.A. No. 716628 provides for the authorized
expenses of registered political parties and candidates for every voter;
it affords candidates equal opportunity in their election campaign by
regulating the amount that should be spent for each voter. Likewise,
Section 1429 of R.A. No. 7166 requires all candidates and treasurers of
registered political parties to submit a statement of all contributions and
expenditures in connection with the election. Section 14 is a post-audit
measure that aims to ensure that the candidates did not overspend in
their election campaign, thereby enforcing the grant of equal Similarly, in Erznoznik v. City of Jacksonville,35 the U.S. Supreme Court
opportunity to candidates under Section 13. nullified a city ordinance, which made it a public nuisance and a
punishable offense for a drive-in movie theater to exhibit films
A strict implementation of the foregoing provisions of law would suffice containing nudity, when the screen is visible from a public street or
to achieve the governmental interest of ensuring equal time, space, and place. The U.S. Supreme Court opined that the degree of captivity is
opportunity for candidates in elections. There is thus no necessity of not so great as to make it impracticable for an unwilling viewer to avoid
still curtailing the right to free speech of the owners of PUVs and exposure, thus:
transport terminals by prohibiting them from posting election campaign
materials on their properties. The Jacksonville ordinance discriminates among movies solely on the
basis of content. Its effect is to deter drive-in theaters from showing
Section 7(g) items (5) and (6) of movies containing any nudity, however innocent or even educational.
Resolution No. 9615 are not justified under This discrimination cannot be justified as a means of preventing
the captive-audience doctrine. significant intrusions on privacy. The ordinance seeks only to keep
these films from being seen from public streets and places where the
The COMELEC further points out that PUVs and transport terminals hold offended viewer readily can avert his eyes. In short, the screen of a
a "captive audience" - commuters who have no choice but be subjected drive-in theater is not "so obtrusive as to make it impossible for
to the blare of political propaganda. The COMELEC further claims that an unwilling individual to avoid exposure to it." x x x Thus, we
while owners of privately owned PUVs and transport terminals have a conclude that the limited privacy interest of persons on the public
right to express their views to those who wish to listen, they have no streets cannot justify this censorship of otherwise protected speech on
right to force their message upon an audience incapable of declining to the basis of its content.36 (Emphasis ours)
receive it.
Thus, a government regulation based on the captive-audience doctrine
The COMELEC's claim is untenable. may not be justified if the supposed "captive audience" may avoid
exposure to the otherwise intrusive speech. The prohibition under
The captive-audience doctrine states that when a listener cannot, as a Section 7(g) items (5) and (6) of Resolution No. 9615 is not justified
practical matter, escape from intrusive speech, the speech can be under the captive-audience doctrine; the commuters are not forced or
restricted.30 The "captive-audience" doctrine recognizes that a listener compelled to read the election campaign materials posted on PUVs and
has a right not to be exposed to an unwanted message in transport terminals. Nor are they incapable of declining to receive the
circumstances in which the communication cannot be avoided.31 messages contained in the posted election campaign materials since
they may simply avert their eyes if they find the same unbearably
A regulation based on the captive-audience doctrine is in the guise of intrusive.
censorship, which undertakes selectively to shield the public from some
kinds of speech on the ground that they are more offensive than others. The COMELEC, in insisting that it has the right to restrict the posting of
Such selective restrictions have been upheld only when the speaker election campaign materials on PUVs and transport terminals,
intrudes on the privacy of the home or the degree of captivity makes it cites Lehman v. City of Shaker Heights,37 a case decided by the U.S.
either impossible or impractical for the unwilling viewer or auditor to Supreme Court. In Lehman, a policy of the city government, which
avoid exposure.32 prohibits political advertisements on government-run buses, was upheld
by the U.S. Supreme Court. The U.S. Supreme Court held that the
In Consolidated Edison Co. v. Public Service Commission,33 the advertising space on the buses was not a public forum, pointing out
Supreme Court of the United States of America (U.S. Supreme Court) that advertisement space on government-run buses, "although
struck down the order of New York Public Service Commission, which incidental to the provision of public transportation, is a part of
prohibits public utility companies from including inserts in monthly bills commercial venture."38 In the same way that other commercial
discussing controversial issues of public policy. The U.S. Supreme Court ventures need not accept every proffer of advertising from the general
held that "[t]he prohibition cannot be justified as being necessary to public, the city's transit system has the discretion on the type of
avoid forcing appellant's views on a captive audience, since customers advertising that may be displayed on its vehicles.
may escape exposure to objectionable material simply by throwing the
bill insert into a wastebasket."34 Concurring in the judgment, Justice Douglas opined that while Lehman,
a candidate for state office who sought to avail himself of advertising Prohibiting owners of PUVs and transport
space on government-run buses, "clearly has a right to express his terminals from posting election campaign
views to those who wish to listen, he has no right to force his message materials violates the equal protection
upon an audience incapable of declining to receive it."39 Justice Douglas clause.
concluded: "the right of the commuters to be free from forced
intrusions on their privacy precludes the city from transforming its Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run
vehicles of public transportation into forums for the dissemination of afoul of the free speech clause, but also of the equal protection clause.
ideas upon this captive audience."40 One of the basic principles on which this government was founded is
that of the equality of right, which is embodied in Section 1, Article III
The COMELEC's reliance on Lehman is utterly misplaced. of the 1987 Constitution.42 "Equal protection requires that all persons or
things similarly situated should be treated alike, both as to rights
In Lehman, the political advertisement was intended for PUVs owned by conferred and responsibilities imposed. Similar subjects, in other words,
the city government; the city government, as owner of the buses, had should not be treated differently, so as to give undue favor to some and
the right to decide which type of advertisements would be placed on its unjustly discriminate against others."43
buses. The U.S. Supreme Court gave primacy to the city government's
exercise of its managerial decision, viz: "The equal protection clause is aimed at all official state actions, not
just those of the legislature. Its inhibitions cover all the departments of
Revenue earned from long-term commercial advertising could be the government including the political and executive departments, and
jeopardized by a requirement that short-term candidacy or issue- extend to all actions of a state denying equal protection of the laws,
oriented advertisements be displayed on car cards. Users would be through whatever agency or whatever guise is taken."44
subjected to the blare of political propaganda. There could be lurking
doubts about favoritism, and sticky administrative problems might arise Nevertheless, the guaranty of equal protection of the laws is not a
in parceling out limited space to eager politicians. In these guaranty of equality in the application of the laws to all citizens of the
circumstances, the managerial decision to limit car card space to state. Equality of operation of statutes does not mean their
innocuous and less controversial commercial and service- indiscriminate operation on persons merely as such, but on persons
oriented advertising does not rise to the dignity of First according to the circumstances surrounding them. It guarantees
Amendment violation. Were we to hold to the contrary, display cases equality, not identity of rights. The Constitution does not require that
in public hospitals, libraries, office buildings, military compounds, and things, which are different in fact, be treated in law as though they
other public facilities immediately would become Hyde Parks open to were the same. The equal protection clause does not forbid
every would be pamphleteer and politician. This the Constitution does discrimination as to things that are different.45
not require.41 (Emphasis ours)
In order that there can be valid classification so that a discriminatory
Lehman actually upholds the freedom of the owner of the utility governmental act may pass the constitutional norm of equal protection,
vehicles, i.e., the city government, in choosing the types of it is necessary that the four requisites of valid classification be complied
advertisements that would be placed on its properties. In stark with, namely: (1) it must be based upon substantial distinctions; (2) it
contrast, Section 7(g) items (5) and (6) of Resolution No. 9615 curtail must be germane to the purposes of the law; (3) it must not be limited
the choice of the owners of PUVs and transport terminals on the to existing conditions only; and (4) it must apply equally to all members
advertisements that may be posted on their properties. of the class.46

Also, the city government in Lehman had the right, nay the duty, to
refuse political advertisements on their buses. Considering that what
were involved were facilities owned by the city government,
impartiality, or the appearance thereof, was a necessity. In the instant
case, the ownership of PUVs and transport terminals remains private;
there exists no valid reason to suppress their political views by
proscribing the posting of election campaign materials on their
properties.
It is conceded that the classification under Section 7(g) items (5) and
(6) of Resolution No. 9615 is not limited to existing conditions and
applies equally to the members of the purported class. However, the
classification remains constitutionally impermissible since it is not based
on substantial distinction and is not germane to the purpose of the law.
A distinction exists between PUVs and transport terminals and private
vehicles and other properties in that the former, to be considered as
such, needs to secure from the government either a franchise or a
permit to operate. Nevertheless, as pointed out earlier, the prohibition
imposed under Section 7(g) items (5) and (6) of Resolution No. 9615
regulates the ownership per se of the PUV and transport terminals; the
prohibition does not in any manner affect the franchise or permit to
operate of the PUV and transport terminals.
As regards ownership, there is no substantial distinction between
owners of PUVs and transport terminals and owners of private vehicles
and other properties. As already explained, the ownership of PUVs and
transport terminals, though made available for use by the public,
remains private. If owners of private vehicles and other properties are
allowed to express their political ideas and opinion by posting election
campaign materials on their properties, there is no cogent reason to
deny the same preferred right to owners of PUVs and transport
terminals. In terms of ownership, the distinction between owners of
PUVs and transport terminals and owners of private vehicles and
properties is merely superficial. Superficial differences do not make for
a valid classification.47
terminals and owners of private vehicles and other properties.
On a final note, it bears stressing that the freedom to advertise one's
political candidacy is clearly a significant part of our freedom of
expression. A restriction on this freedom without rhyme or reason is a
violation of the most valuable feature of the democratic way of life.48
WHEREFORE, in light of the foregoing disquisitions, the instant petition
is hereby GRANTED. Section 7(g) items (5) and (6), in relation to
Section 7(f), of Resolution No. 9615 issued by the Commission on
Elections are hereby declared NULL and VOID for being repugnant to
Sections 1 and 4, Article III of the 1987 Constitution.
SO ORDERED.

The fact that PUVs and transport terminals are made available for use
by the public is likewise not substantial justification to set them apart
from private vehicles and other properties. Admittedly, any election
campaign material that would be posted on PUVs and transport
terminals would be seen by many people. However, election campaign
materials posted on private vehicles and other places frequented by the
public, e.g., commercial establishments, would also be seen by many
people. Thus, there is no reason to single out owners of PUVs and
transport terminals in the prohibition against posting of election
campaign materials.

Further, classifying owners of PUVs and transport terminals apart from

owners of private vehicles and other properties bears no relation to the
stated purpose of Section 7(g) items (5) and (6) of Resolution No.
9615, i.e., to provide equal time, space and opportunity to candidates
in elections. To stress, PUVs and transport terminals are private
properties. Indeed, the nexus between the restriction on the freedom of
expression of owners of PUVs and transport terminals and the
government's interest in ensuring equal time, space, and opportunity
for candidates in elections was not established by the COMELEC.

In sum, Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615 violate the free speech clause; they are content-
neutral regulations, which are not within the constitutional power of the
COMELEC issue and are not necessary to further the objective of
ensuring equal time, space and opportunity to the candidates. They are
not only repugnant to the free speech clause, but are also violative of
the equal protection clause, as there is
no substantial distinction between owners of PUVs and transport