1

G.R. No. 199172 SECTION 8 - REGULATED AREAS - Bridge approach areas

within 200 meters of the following bridges shall be designated as
30-38 minute "regulated areas" in order to preserve, among others, the natural
FIRST DIVISION view and beauty of the Davao River, Mt. Apo, the Davao City
Skyline and the view of Samal Island, to wit:
February 21, 2018
1. Generoso Bridge I and II;
G.R. No. 199172
2. Bolton Bridge I and II;
HON. LEONCIO EVASCO, JR., in his capacity as OIC CITY
ENGINEER OF DAVAO CITY and HON. WENDEL A 3. Lasang Bridge
VISADO, in his capacity as THE CITY ADMINISTRATOR OF
DAVAO CITY, Petitioners xx xx
vs.
ALEX P. MONTANEZ, doing business under the name and CHAPTER 10
style APM or AD AND PROMO MANAGEMENT, Respondents
FEES
DECISION
SECTION 37 - FEES - Fees for the application of Sign Permits to
LEONARDO-DE CASTRO, J.: be paid at the Office of the City Treasurer shall be as follows:

Before the Court is a petition for review on certiorari under Rule 45 I. DISPLAY SURFACE
of the Rules of Court, as amended, seeking to reverse and set aside
the Decision1 dated June 14, 2011 and Amended Decision2 dated
a) Sign fee shall be collected per square meter of the display surface
October 13, 2011 of the Court of Appeals in CA-G.R. CV No.
of billboards, business signs, electrical signs, ground signs,
02281-MIN, where it declared null and void Sections 7, 8, 37 and projecting signs, roof signs, signboards and wall signs for such
45 of the Davao City Ordinance No. 092, Series of 2000 amount as follows:
(hereinafter referred to as "Ordinance No. 092- 2000" or "the
Ordinance").3
a.1 outdoor video screen................... ₱150.00
The facts are as follows:
a.2 tri-wind billboard........................ ₱100.00
On August 8, 2000, the city government of Davao (City
Government), through its Sangguniang Panlungsod, approved a.3 neon............................................. ₱75.00
Ordinance No. 092-2000 entitled "An Ordinance Regulating the
Construction, Repair, Renovation, Erection, Installation and a.4 illuminated .................................. ₱50.00
Maintenance of Outdoor Advertising Materials and For Related
Purposes." Sections 7, 8, 37, and 45 of the ordinance provided as a.5 painted-on .................................... ₱30.00
follows:
a.6 others ............................................ ₱15.00
CHAPTERS
b) Posters (per piece) ....................................... ₱5.00
SPECIFIC PROVISIONS
c) Temporary signs (per square meter) ........... ₱5.00
Article 1
d) Other advertising and/or propaganda Materials (per square meter)
Advertising Sign ........................ ₱10.00

SECTION 7 - BILLBOARD - Outdoor advertising signs shall not e) Building lines/staking line and Grade (fixed amount)
be allowed in a residential zone as designated in the Official Zoning ............................................. ₱200.00
Map. Adjacent billboards shall be erected in such a way as to
maintain 150.00 meters unobstructed line of sight. II. STRUCTURE

Billboards and other self-supporting outdoor signs along highways Erection of support for any signboard, billboard and the like shall be
shall be located within a minimum of 10.00 meters away from the charged a fee as follows:
property lines abutting the road right-of-way.
1) up to 4 square meter of signboard................ ₱100.00

2) in every square meter or fraction thereof...... ₱50.00
III. RENEWAL FEE
Renewal of sign permit shall include among others the
corresponding payment for the display surface and support structure
of the sign as determined in accordance with this Section and
Section 35 of this Ordinance.
IV. OTHER FEES
Sign fees paid under this Ordinance shall be without prejudice to an
additional payment of electrical permit fee for signs with electrical
devices as required in accordance with the provisions of the
National Building Code.
xx xx
CHAPTER 14
REMOVAL OF ILLEGAL MATERIALS
SECTION 45 - REMOVAL. The City Engineer or his duly
authorized representative shall remove, upon recommendation of
the Building Official, the following at the expense of the displaying
party:
l. Those displayed without permit from the Local Building Official,
provided that the displaying party shall be given a reasonable period
of sixty (60) days from receipt of the notice to comply with the sign
permit requirement provided hereof;
2. Those displayed with a permit but without bearing the necessary
permit marking requirement as provided in Section 39 hereof,
provided that the displaying party shall be given a reasonable period
of sixty (60) days from receipt of the notice to comply with the
marking permit requirement provided hereof;
3. Those displayed beyond the expiry date as provided in Section 34
hereof, however, if the displaying party intends to renew such
permit even beyond the period sought to be extended, the same shall
be given a reasonable period of sixty (60) days from receipt of the
notice to comply with the renewal requirement provided hereof
without prejudice to the payment of surcharge of 25% of the total
fees for such delay.
4. Those displayed in public places and/or structures as stated in
section 41;
5. Those billboards, business signs, electrical signs, ground signs,
projecting signs, roof signs or wall signs which are installed or
constructed in violation of this Ordinance or other applicable statues
and ordinances.
As early as 2003, the City Engineer of Davao City (City Engineer)
started sending notices of illegal construction to various outdoor
advertising businesses, including Ad & Promo Management
(APM), owned by herein respondent Alex P. Montanez, that
constructed the billboards in different areas within the city. The City
2
Engineer reminded the entities to secure a sign permit or apply for a
renewal for each billboard structure as required by Ordinance No.
092-2000.
In February4 and March 2006, the City Engineer issued orders5 of
demolition directing erring outdoor advertising businesses,
including APM, to "voluntarily dismantle" their billboards that
violate Ordinance No. 092- 2000 within three days from receipt of
the order. Otherwise, the city government shall summarily remove
these structures without further notice. In the orders of demolition
dated March 17, 2006, the summary removal was scheduled on
March 30, 2006 at 8:30 in the morning.
With the impending demolition of APM's billboard structures,
respondent Montanez sought recourse before the Regional Trial
Court (RTC), Branch 14, Davao City on March 28, 2006 and filed a
petition for injunction and declaration of nullity of Ordinance No.
092-2000 and order of demolition dated March 17, 2006 with
application for a writ of preliminary injunction and temporary
restraining order docketed as Sp. Civil Case No. 31,346-06.
In his petition,6 respondent Montanez claimed that Ordinance No.
092-2000 is unconstitutional for being overbreadth in its
application, vague, and inconsistent with Presidential Decree No.
1096 or the National Building Code of the Philippines (National
Building Code).
In an Order7 dated April 17, 2006, the RTC granted respondent
Montañez's application for the issuance of a writ of preliminary
injunction, to wit:
WHEREFORE, conformably with the foregoing, the instant prayer
for the issuance of the writ of preliminary injunction is hereby
GRANTED. The respondents, namely, OIC Leoncio Evasco, Jr. of
the Davao City Engineer's Office and Davao City Administrator
Wendel A visado are hereby restrained from implementing the
Order of demolition dated March 17, 2006 and from actually
demolishing the advertising structures of petitioner Alex P.
Montanez along Bolton Bridge and Bankerohan Bridge until the
main case is decided and tried on the merits or until further orders
from this Court.
Meanwhile, in response to the damage caused by typhoon Milenyo
in September 2006 especially to various billboard structures within
Metro Manila, former President Gloria Macapagal-Arroyo
(President Arroyo) issued Administrative Order (AO) No. 1608
directing the Department of Public Works and Highways (DPWH)
to conduct nationwide field inspections, evaluations, and
assessments of billboards and to abate and dismantle those: (a)
posing imminent danger or threat to the life, health, safety and
property of the public; (b) violating applicable laws, rules and
regulations; (c) constructed within the easement of road right-of-
way; and/or, (d) constructed without the necessary permits.
President Arroyo also issued AO No. 160-A9 specifying the legal
grounds and procedures in the abatement of billboards and
signboards constituting public nuisance or other violations of law.
Assuming the role given by AO No. 160, Acting DPWH Secretary
Hennogenes E. Ebdane, Jr. issued National Building Code
Development Office (NBCDO) Memorandum Circular No. 310

directing all local government Building Officials to cease and desist
from processing application for and issuing and renewing billboard
permits.
Pursuant to this directive, the city government suspended all
pending applications for billboard permits.
While petitioner Montañez's case was still pending before the RTC,
the city government issued another order of demolition dated
September 25, 2008, this time directed against Prime
Advertisements & Signs (Prime), on the ground that the latter's
billboards had no sign permits and encroached a portion of the road
right of way. The city government gave Prime until October 8, 2008
to voluntarily trim its structures. Otherwise, the same shall be
removed by the city demolition team.
The directive against Prime prompted herein respondent Davao
Billboards and Signmakers Association, Inc. (DABASA) to
intervene11 in Sp. Civil Case No. 31,346-06 in behalf of its
members consisting of outdoor advertising and signmaker
businesses in Davao City such as APM and Prime.
The RTC Decision
In its Decision12 dated January 19, 2009, the RTC ruled in favor of
herein respondents Montanez and DABASA, to wit:
WHEREFORE, and in view of all the foregoing, judgment is
rendered declaring as void and unconstitutional the following
provisions of City Ordinance No. 092-2000 as follows:
(a) Sections 7, 8 and 41
for being contrary to P.D. 1096 or the National Building Code of
the Philippines.
The injunction previously issued base (sic) on the aforesaid
provisions of the ordinance is hereby made permanent.13
Both parties moved for reconsideration. Thus, in its Joint Order
dated April 1, 2009, the RTC modified its original decision, to wit:
WHEREFORE, and in view of all the foregoing, the .instant motion
for partial reconsideration of petitioner is GRANTED modifying the
court's decision dated JANUARY 19, 2009 as follows:
~ Hence, the present petition.
(a) declaring as void and unconstitutional the following provisions
of City Ordinance No. 092-2000, as follows:
aa) Sections 7, 8 and 37, for being contrary to P.D. 1096 or the
National Building Code of the Philippines;
[bb] declaring herein Section 41 of City Ordinance No. 092- 2000
as deleted; and
3
[cc] declaring the injunction previously issued by the Court based
on the aforesaid provisions of the Ordinance, permanent.
Respondents'. (sic) motion for reconsideration is DENIED.14
Aggrieved, the petitioner City Engineer sought recourse before the
Court of Appeals.
The Ruling of the Court of Appeals
In its assailed Decision, the Court of Appeals denied the City
Engineer's appeal, to wit:
WHEREFORE, premises foregoing, the appeal is hereby DENIED
and the January 19, 2009 Decision and April 1, 2009 Joint Order of
Branch 14 of the Regional Trial Court of Davao City in Civil Case
No. 31,346-06 the Regional Trial Court (sic) AFFIRMED with
modification.
The appealed Decision and Joint Order are affirmed insofar as it
declares Section 7 and 8 of City Ordinance of Davao No. 092 series
of 2002 (sic) null and void. Section 45 of the challenged Order (sic)
is likewise declared null and void. We, however, reinstate Section
41 of the challenged Ordinance.15
Again, both parties moved for reconsideration. Subsequently, the
Court of Appeals promulgated its Amended Decision, to wit:
WHEREFORE, premises foregoing, respondent-appellant City of
Davao's Motion for Reconsideration is hereby DENIED. Petitioner-
appellee's prayer for the categorical declaration of the nullity of
Section 37 of the challenged Ordinance and rectification of the
dispositive portion of our June 14, 2011 Decision are GRANTED.
The fallo of said decision should now read:
"WHEREFORE, premises foregoing, the appeal is hereby DENIED
and the January 19, 2009 Decision and April 1, 2009 Joint Order of
Branch 14 of the Regional Trial Court of Davao City in Civil Case
No. 31,346-06 are AFFIRMED with modification.
The appealed Decision and Joint Order are affirmed insofar as it
declares Section 7, 8 and 37 of City Ordinance of Davao No. 092
series of 2002 (sic) null and void. Section 45 of the challenged
Ordinance is likewise declared null and void. We however,
reinstate Section 41 of the challenged Ordinance."16
On the basis of City of Manila v. Laguio, Jr.,17 the appellate court
held that Ordinance No. 092-2000 is not consistent with the
National Building Code and, thus, invalid. It cited the following
inconsistencies: First, Section 7 of Ordinance No. 092-2000
requires that signs and signboards must be constructed at least 10
meters away from the property line while the National Building
Code allows projection of not more than 300 millimeters over alleys
and roads. The Ordinance unduly interferes with proprietary rights
inasmuch as it requires a larger setback distance. Second, Section 8
of the Ordinance regulates building and constn1ction of signs and
signboards within certain areas to preserve the natural beauty of the

Davao River, Mt. Apo, the Davao City Skyline, and the view of
Samal Island. Upholding People v. Fajardo,18 the local
government cannot rely solely on aesthetics in justifying its exercise
of police power. Third, Section 45 of the Ordinance authorizes the
City Engineer, upon the Building Official's recommendation, to
demolish advertising materials that have been found to be illegally
constructed. In effect, the Ordinance expanded the Building
Official's authority, which, under the National Building Code, was
limited to determining ruinous and dangerous buildings or
structures and to recommending its repair or demolition. Further,
the National Building Code does not allow the demolition of signs
based on a supposed lack of permit. Instead, it allows these
structures to continue to operate so long as a duly accredited
engineer certifies the structures' structural integrity.19
The Issues
The petitioner City Engineer now comes before this Court raising
the following issues:
I areas" in keeping with aesthetic purposes of the surroundings is not
WHETHER OR NOT SECTION 7 OF SIGNAGE ORDINANCE,
WIDCH IS LIFTED/COPIED FROM UNCHALLENGED
PROVISION OF THE IMPLEMENTING RULES AND
REGULATION (SIC) OF NATIONAL BUILDING CODE OF
THE PHILIPPINES, RUNS CONTRA[R]Y TO THE NATIONAL
BUILDING CODE ITSELF?
II
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
DECLARING SECTION 8 OF SIGNAGE ORDINANCE NULL
AND VOID
III
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
DECLARING SECTION 37 OF SIGNAGE ORDINANCE NULL
AND VOID
IV
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
DECLARING SECTION 45 OF SIGNAGE ORDINANCE NULL
AND VOID20
The petitioner City Engineer argues that Ordinance No. 092-2000 is
not inconsistent with the National Building Code as follows: as to
Section 7, it cannot be held to be inconsistent with Section 1002,21
which is under Chapter 10, of the National Building Code because
said provision applies to all building projections, in general. Signs
and billboards are specifically governed by Chapter 20 thereof. As
to Section 8, Section 458(a)(3)(iv)22 of Republic Act No. 7160 or
the Local Government Code of the Philippines (LGC), the city
government has the power to regulate the display of signs for the
purpose of preserving the natural view and beauty of the
surroundings. Aesthetic considerations do not constitute undue
interference on property rights because it merely sets a limitation
4
and, in fact, still allows construction of property provided it is done
beyond the setback. As to Section 37, when it nullified the same, the
Court of Appeals did not state the specific legal findings and bases
supporting its nullity. Thus, the assailed decision violated Section
14, Article VIII23 of the Constitution. As to Section 45, the Court of
Appeals went beyond its authority when it invalidated the said
Section because the parties, both petitioners and respondents, did
not raise any issue as to the validity of said section. Moreover, the
city engineer is mandated to act as the local building official. In
turn, under the LGC, the city engineer is empowered to perform
duties and functions prescribed by ordinances, such as Ordinance
No. 092-2000. Thus, the city engineer has the authority to cause the
removal of structures found to have violated the ordinance.
On the other hand, herein respondents maintain that Ordinance No.
092-2000 is invalid for the following reasons: .first, Section 7
thereof contradicts the National Building Code because while the
latter does not impose a minimum setback from the property lines
abutting the road right-of- way, the said provision requires a 10-
meter setback. Second, Section 8's establishment of "regulated
a valid exercise of police power. Third, the fees required by Section
37 of the ordinance are excessive, confiscatory, and oppressive.
Fourth, Section 45, insofar as it empowers the building official to
cause the removal of erring billboards, is an undue delegation of
derivative power. Under the National Building Code, the building
official's authority is limited to the determination of ruinous and
dangerous buildings and structures.24
The Ruling of the Court
The petition is meritorious.
We disagree with the Court of Appeals when it declared Sections 7,
8, 37, and 45 of Ordinance No. 092-2000 as unconstitutional, thus,
null and void for being inconsistent with the National Building
Code. However, the validity of Ordinance No. 092-2000 is being
upheld for reasons different from those espoused by the petitioners.
It is settled that an ordinance's validity shall be upheld if the
following requisites are present: First, the local government unit
must possess the power to enact an ordinance covering a particular
subject matter and according to the procedure prescribed by law.
Second, the ordinance must not contravene the fundamental law of
the land, or an act of the legislature, or must not be against public
policy or must not be unreasonable, oppressive, partial,
discriminating or in derogation of a common right.25
The power to regulate billboards was
validly delegated to the local city
council via Davao's charter
Ordinance No. 092-2000, which regulates the construction and
installation of building and other structures such as billboards
within Davao City, is an exercise of police power.26 It has been
stressed in Metropolitan Manila Development Authority v. Bel-Air
Village Association27 that while police power is lodged primarily in
the National Legislature, Congress may delegate this power to local
government units. Once delegated, the agents can exercise only

such legislative powers as are conferred on them by the national
lawmaking body.
Republic Act No. 4354 otherwise known as the Revised Charter of
the City of Davao (Davao City Charter),28 enacted on June 19,
1965, vested the local Sangguniang Panlungsod with the
legislative power to regulate, prohibit, and fix license fees for
the display, construction, and maintenance of billboards and
similar structures.
With the aforementioned law, Congress expressly granted the
Davao City government, through the Sangguniang Panlungsod,
police power to regulate billboard structures within its territorial
jurisdiction.29
Petitioners failed to allege the specific
constitutional provision violated
The records reveal that while petitioners claim that Ordinance No.
092-2000 is unconstitutional, they have not pointed to any specific
constitutional provision it allegedly violated. The settled rule is that
an ordinance is presumed constitutional and valid.30 This
presumption may only be overcome by a showing of the ordinance's
clear and unequivocal breach of the Constitution.31
To invalidate an ordinance based on a bare and unilateral
declaration that it is unconstitutional is an affront to the wisdom not
only of the legislature that passed it but also of the executive which
approved it.32
Consistency between Ordinance No.
092-2000 and the National Building
Code is irrelevant
The Court of Appeals ruled that Ordinance No. 092-2000 is invalid
because it contradicts the provisions of the National Building Code,
i.e., the. Ordinance imposes additional requirements not provided in
the National Building Code and even expanded the authority of the
city building official in the removal of erring billboard structures.
We disagree.
As stated earlier, the power to regulate billboards within its
territorial jurisdiction has been delegated by Congress to the city
government via the Davao City Charter. This direct and specific
grant takes precedence over requirements set forth in another law of
general application,33 in this case the National Building Code.
Stated differently, the city government does not need to refer to the
procedures laid down in the National Building Code to exercise this
power.
Thus, the consistency between Ordinance No. 092-2000 with the
National Building Code is irrelevant to the validity of the
former.1âшphi1
To be clear, even if the National Building Code imposes minimum
requirements as to the construction and regulation of billboards, the
city government may impose stricter limitations because its
police power to do so originates from its charter and not from
5
the National Building Code. The ordinance specifically governs
billboards and other similar structures situated within Davao City,
independent of the provisions of the National Building Code.
Ordinance No. 092-2000 is a valid
exercise of police power
An ordinance constitutes a valid exercise of police power if: (a) it
has a lawful subject such that the interests of the public generally,
as distinguished from those of a particular class, require its exercise;
and (b) it uses a lawful method such that its implementing
measures must be reasonably necessary for the accomplishment of
the purpose and not unduly oppressive upon individuals.34
First, Ordinance No. 092-2000 seeks to regulate all signs and sign
structures based on prescribed· standards as to its location, design,
size, quality of materials, construction and maintenance35 to: (a)
safeguard the life and property of Davao City's inhabitants; (b) keep
the surroundings clean and orderly; (c) ensure public decency and
good taste; and (d) preserve a harmonious aesthetic relationship of
these structures as against the general surroundings.36
Second, the ordinance employs the following rules in implementing
its policy, viz.: (a) Minimum distances must be observed in
installing and constructing outdoor billboards (i.e., 150 meters
unobstructed line of sight, 10 meters away from the property lines
abutting the right-of-way);37 (b) Additional requirements shall be
observed (i.e., billboards shall have a maximum total height of 17
meters, the top and bottom lines of billboards shall follow a
common base)38 in locations designated as "regulated areas" to
preserve the natural view and beauty of the Davao River, Mt. Apo,
the Davao City Skyline, and the view of Samal Island;39 ( c) Sign
permits must be secured from and proper fees paid to the city
government;40 and (d) Billboards without permits, without the
required marking signs, or otherwise violative of any provision
thereof shall be removed, allowing the owner 60 days from receipt
of notice to correct and address its violation.41
The Court will not be quick at invalidating an ordinance as
unreasonable unless the rules imposed are so excessive as to be
prohibitive, arbitrary, unreasonable, oppressive, or confiscatory.42
It must be remembered that the local legislative authority has a wide
discretion to determine not only what the interests of the public
require but also what measures are necessary for the protection of
such interests.43 We accord high respect to the Sanggunian's
issuance because the local council is in the best position to
determine the needs of its constituents.44
In the same vein, Ordinance No. 092-2000 reflects the wisdom of
the Sangguniang Panlungsod as elected representatives of the
people of Davao City. In local affairs, acts of local officials must
be upheld when it is clear that these were performed squarely
within the statutory authority granted to them and in the
exercise of their sound discretion.45
For the foregoing reasons, the validity of Ordinance No. 092-2000,
including the provisions at issue in the present petition, viz.:
Sections 7, 8, 3 7, and 45 must be upheld.
 6

By way of an observation, We note that petitioner City Engineer

issued orders of demolition that required erring outdoor advertising
businesses to correct the defects of their structures within three
days from receipt of notice. Otherwise, the billboard will be
summarily removed. In said orders dated March 17, 200646 and
September 25, 2008,47 the summary removal operations were
March 30, 2006 and October 8, 2008, respectively. These orders of
demolition, however, violate Section 45 of the ordinance inasmuch
as the orders do not observe the reglementary periods granted to
erring billboard owners. Section 45 clearly gives the owners at least
60 days to correct any defect suffered by their structures and
altogether comply with the ordinance requirements.

WHEREFORE, in view of all the foregoing, the instant petition is

GRANTED. The Decision and Amended Decision of the Court of
Appeals dated June 14, 2011 and October 13, 2011, respectively, in
CA-G.R. CV No. 02281-MIN are hereby REVERSED and SET
ASIDE.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

On official leave
MARIA LOURDES P.A. SERENO*
Chief Justice
Chairperson

MARIANO C. DEL CASTILLO FRANCIS H. JARDELEZA

Associate Justice Associate Justice

On official leave
NOEL GIMENEZ TIJAM*
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decisionhad been reached

in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

TERESITA J. LEONARDO-DE CASTRO**

Associate Justice
Acting Chairperson, First Division

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution and the
Division Acting Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the
Court’s Division.

ANTONIO T. CARPIO
Acting Chief Justice

G.R. No. 122846
43-55 minutes
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 122846 January 20, 2009
WHITE LIGHT CORPORATION, TITANIUM
CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR
ALFREDO S. LIM, Respondent.
DECISION
Tinga, J.:
With another city ordinance of Manila also principally involving the
tourist district as subject, the Court is confronted anew with the
incessant clash between government power and individual liberty in
tandem with the archetypal tension between law and morality.
In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification
of a city ordinance barring the operation of motels and inns, among
other establishments, within the Ermita-Malate area. The petition at
bar assails a similarly-motivated city ordinance that prohibits those
same establishments from offering short-time admission, as well as
pro-rated or "wash up" rates for such abbreviated stays. Our earlier
decision tested the city ordinance against our sacred constitutional
rights to liberty, due process and equal protection of law. The same
parameters apply to the present petition.
This Petition2 under Rule 45 of the Revised Rules on Civil
Procedure, which seeks the reversal of the Decision3 in C.A.-G.R.
S.P. No. 33316 of the Court of Appeals, challenges the validity of
Manila City Ordinance No. 7774 entitled, "An Ordinance
Prohibiting Short-Time Admission, Short-Time Admission Rates,
and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging
Houses, Pension Houses, and Similar Establishments in the City of
Manila" (the Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim)
signed into law the Ordinance.4 The Ordinance is reproduced in full,
hereunder:
7
SECTION 1. Declaration of Policy. It is hereby the declared policy
of the City Government to protect the best interest, health and
welfare, and the morality of its constituents in general and the youth
in particular.
SEC. 2. Title. This ordinance shall be known as "An Ordinance"
prohibiting short time admission in hotels, motels, lodging houses,
pension houses and similar establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate
[sic], wash-up rate or other similarly concocted terms, are hereby
prohibited in hotels, motels, inns, lodging houses, pension houses
and similar establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean
admittance and charging of room rate for less than twelve (12)
hours at any given time or the renting out of rooms more than twice
a day or any other term that may be concocted by owners or
managers of said establishments but would mean the same or would
bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall
violate any provision of this ordinance shall upon conviction thereof
be punished by a fine of Five Thousand (₱5,000.00) Pesos or
imprisonment for a period of not exceeding one (1) year or both
such fine and imprisonment at the discretion of the court; Provided,
That in case of [a] juridical person, the president, the manager, or
the persons in charge of the operation thereof shall be liable:
Provided, further, That in case of subsequent conviction for the
same offense, the business license of the guilty party shall
automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances
not consistent with or contrary to this measure or any portion hereof
are hereby deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect immediately
upon approval.
Enacted by the city Council of Manila at its regular session today,
November 10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.
On December 15, 1992, the Malate Tourist and Development
Corporation (MTDC) filed a complaint for declaratory relief with
prayer for a writ of preliminary injunction and/or temporary
restraining order ( TRO)5 with the Regional Trial Court (RTC) of
Manila, Branch 9 impleading as defendant, herein respondent City
of Manila (the City) represented by Mayor Lim. 6 MTDC prayed that
the Ordinance, insofar as it includes motels and inns as among its
prohibited establishments, be declared invalid and unconstitutional.
MTDC claimed that as owner and operator of the Victoria Court in
Malate, Manila it was authorized by Presidential Decree (P.D.) No.
259 to admit customers on a short time basis as well as to charge
customers wash up rates for stays of only three hours.
On December 21, 1992, petitioners White Light Corporation
(WLC), Titanium Corporation (TC) and Sta. Mesa Tourist and
Development Corporation (STDC) filed a motion to intervene and

to admit attached complaint-in-intervention7 on the ground that the
Ordinance directly affects their business interests as operators of
drive-in-hotels and motels in Manila.8 The three companies are
components of the Anito Group of Companies which owns and
operates several hotels and motels in Metro Manila.9
On December 23, 1992, the RTC granted the motion to intervene. 10
The RTC also notified the Solicitor General of the proceedings
pursuant to then Rule 64, Section 4 of the Rules of Court. On the
same date, MTDC moved to withdraw as plaintiff.11
On December 28, 1992, the RTC granted MTDC's motion to
withdraw.12 The RTC issued a TRO on January 14, 1993, directing
the City to cease and desist from enforcing the Ordinance. 13 The
City filed an Answer dated January 22, 1993 alleging that the
Ordinance is a legitimate exercise of police power.14
On February 8, 1993, the RTC issued a writ of preliminary
injunction ordering the city to desist from the enforcement of the
Ordinance.15 A month later, on March 8, 1993, the Solicitor General
filed his Comment arguing that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to
submit the case for decision without trial as the case involved a
purely legal question.16 On October 20, 1993, the RTC rendered a
decision declaring the Ordinance null and void. The dispositive
portion of the decision reads:
WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774
of the City of Manila is hereby declared null and void.
Accordingly, the preliminary injunction heretofor issued is hereby
made permanent.
SO ORDERED.17
The RTC noted that the ordinance "strikes at the personal liberty of
the individual guaranteed and jealously guarded by the
Constitution."18 Reference was made to the provisions of the
Constitution encouraging private enterprises and the incentive to
needed investment, as well as the right to operate economic
enterprises. Finally, from the observation that the illicit
relationships the Ordinance sought to dissuade could nonetheless be
consummated by simply paying for a 12-hour stay, the RTC likened
the law to the ordinance annulled in Ynot v. Intermediate Appellate
Court,19 where the legitimate purpose of preventing indiscriminate
slaughter of carabaos was sought to be effected through an inter-
province ban on the transport of carabaos and carabeef.
The City later filed a petition for review on certiorari with the
Supreme Court.20 The petition was docketed as G.R. No. 112471.
However in a resolution dated January 26, 1994, the Court treated
the petition as a petition for certiorari and referred the petition to
the Court of Appeals.21
Before the Court of Appeals, the City asserted that the Ordinance is
a valid exercise of police power pursuant to Section 458 (4)(iv) of
the Local Government Code which confers on cities, among other
local government units, the power:
8
[To] regulate the establishment, operation and maintenance of cafes,
restaurants, beerhouses, hotels, motels, inns, pension houses,
lodging houses and other similar establishments, including tourist
guides and transports.22
The Ordinance, it is argued, is also a valid exercise of the power of
the City under Article III, Section 18(kk) of the Revised Manila
Charter, thus:
"to enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity and the
promotion of the morality, peace, good order, comfort, convenience
and general welfare of the city and its inhabitants, and such others
as be necessary to carry into effect and discharge the powers and
duties conferred by this Chapter; and to fix penalties for the
violation of ordinances which shall not exceed two hundred pesos
fine or six months imprisonment, or both such fine and
imprisonment for a single offense.23
Petitioners argued that the Ordinance is unconstitutional and void
since it violates the right to privacy and the freedom of movement;
it is an invalid exercise of police power; and it is an unreasonable
and oppressive interference in their business.
The Court of Appeals reversed the decision of the RTC and
affirmed the constitutionality of the Ordinance.24 First, it held that
the Ordinance did not violate the right to privacy or the freedom of
movement, as it only penalizes the owners or operators of
establishments that admit individuals for short time stays. Second,
the virtually limitless reach of police power is only constrained by
having a lawful object obtained through a lawful method. The
lawful objective of the Ordinance is satisfied since it aims to curb
immoral activities. There is a lawful method since the
establishments are still allowed to operate. Third, the adverse effect
on the establishments is justified by the well-being of its
constituents in general. Finally, as held in Ermita-Malate Motel
Operators Association v. City Mayor of Manila, liberty is regulated
by law.
TC, WLC and STDC come to this Court via petition for review on
certiorari.25 In their petition and Memorandum, petitioners in
essence repeat the assertions they made before the Court of
Appeals. They contend that the assailed Ordinance is an invalid
exercise of police power.
II.
We must address the threshold issue of petitioners’ standing.
Petitioners allege that as owners of establishments offering "wash-
up" rates, their business is being unlawfully interfered with by the
Ordinance. However, petitioners also allege that the equal
protection rights of their clients are also being interfered with. Thus,
the crux of the matter is whether or not these establishments have
the requisite standing to plead for protection of their patrons' equal
protection rights.
Standing or locus standi is the ability of a party to demonstrate to
the court sufficient connection to and harm from the law or action
challenged to support that party's participation in the case. More
importantly, the doctrine of standing is built on the principle of

separation of powers,26 sparing as it does unnecessary interference
or invalidation by the judicial branch of the actions rendered by its
co-equal branches of government.
The requirement of standing is a core component of the judicial
system derived directly from the Constitution. 27 The constitutional
component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition.28 In this
jurisdiction, the extancy of "a direct and personal interest" presents
the most obvious cause, as well as the standard test for a petitioner's
standing.29 In a similar vein, the United States Supreme Court
reviewed and elaborated on the meaning of the three constitutional
standing requirements of injury, causation, and redressability in
Allen v. Wright.30
Nonetheless, the general rules on standing admit of several
exceptions such as the overbreadth doctrine, taxpayer suits, third
party standing and, especially in the Philippines, the doctrine of
transcendental importance.31
For this particular set of facts, the concept of third party standing as
an exception and the overbreadth doctrine are appropriate. In
Powers v. Ohio,32 the United States Supreme Court wrote that: "We
have recognized the right of litigants to bring actions on behalf of
third parties, provided three important criteria are satisfied: the
litigant must have suffered an ‘injury-in-fact,’ thus giving him or
her a "sufficiently concrete interest" in the outcome of the issue in
dispute; the litigant must have a close relation to the third party; and
there must exist some hindrance to the third party's ability to protect
his or her own interests."33 Herein, it is clear that the business
interests of the petitioners are likewise injured by the Ordinance.
They rely on the patronage of their customers for their continued
viability which appears to be threatened by the enforcement of the
Ordinance. The relative silence in constitutional litigation of such
special interest groups in our nation such as the American Civil
Liberties Union in the United States may also be construed as a
hindrance for customers to bring suit.34
American jurisprudence is replete with examples where parties-in-
interest were allowed standing to advocate or invoke the
fundamental due process or equal protection claims of other persons
or classes of persons injured by state action. In Griswold v.
Connecticut,35 the United States Supreme Court held that physicians
had standing to challenge a reproductive health statute that would
penalize them as accessories as well as to plead the constitutional
protections available to their patients. The Court held that:
"The rights of husband and wife, pressed here, are likely to be
diluted or adversely affected unless those rights are considered in a
suit involving those who have this kind of confidential relation to
them."36
An even more analogous example may be found in Craig v.
Boren,37 wherein the United States Supreme Court held that a
licensed beverage vendor has standing to raise the equal protection
claim of a male customer challenging a statutory scheme prohibiting
the sale of beer to males under the age of 21 and to females under
the age of 18. The United States High Court explained that the
vendors had standing "by acting as advocates of the rights of third
parties who seek access to their market or function." 38
9
Assuming arguendo that petitioners do not have a relationship with
their patrons for the former to assert the rights of the latter, the
overbreadth doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect permitted to raise the
rights of third parties. Generally applied to statutes infringing on the
freedom of speech, the overbreadth doctrine applies when a statute
needlessly restrains even constitutionally guaranteed rights.39 In this
case, the petitioners claim that the Ordinance makes a sweeping
intrusion into the right to liberty of their clients. We can see that
based on the allegations in the petition, the Ordinance suffers from
overbreadth.
We thus recognize that the petitioners have a right to assert the
constitutional rights of their clients to patronize their establishments
for a "wash-rate" time frame.
III.
To students of jurisprudence, the facts of this case will recall to
mind not only the recent City of Manila ruling, but our 1967
decision in Ermita-Malate Hotel and Motel Operations Association,
Inc., v. Hon. City Mayor of Manila.40 Ermita-Malate concerned the
City ordinance requiring patrons to fill up a prescribed form stating
personal information such as name, gender, nationality, age, address
and occupation before they could be admitted to a motel, hotel or
lodging house. This earlier ordinance was precisely enacted to
minimize certain practices deemed harmful to public morals. A
purpose similar to the annulled ordinance in City of Manila which
sought a blanket ban on motels, inns and similar establishments in
the Ermita-Malate area. However, the constitutionality of the
ordinance in Ermita-Malate was sustained by the Court.
The common thread that runs through those decisions and the case
at bar goes beyond the singularity of the localities covered under the
respective ordinances. All three ordinances were enacted with a
view of regulating public morals including particular illicit activity
in transient lodging establishments. This could be described as the
middle case, wherein there is no wholesale ban on motels and hotels
but the services offered by these establishments have been severely
restricted. At its core, this is another case about the extent to which
the State can intrude into and regulate the lives of its citizens.
The test of a valid ordinance is well established. A long line of
decisions including City of Manila has held that for an ordinance to
be valid, it must not only be within the corporate powers of the local
government unit to enact and pass according to the procedure
prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be partial
or discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must not
be unreasonable.41
The Ordinance prohibits two specific and distinct business
practices, namely wash rate admissions and renting out a room more
than twice a day. The ban is evidently sought to be rooted in the
police power as conferred on local government units by the Local
Government Code through such implements as the general welfare
clause.

A.
Police power, while incapable of an exact definition, has been
purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough room
for an efficient and flexible response as the conditions warrant.42
Police power is based upon the concept of necessity of the State and
its corresponding right to protect itself and its people.43 Police
power has been used as justification for numerous and varied
actions by the State. These range from the regulation of dance
halls,44 movie theaters,45 gas stations46 and cockpits.47 The awesome
scope of police power is best demonstrated by the fact that in its
hundred or so years of presence in our nation’s legal system, its use
has rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate
the use of the covered establishments for illicit sex, prostitution,
drug use and alike. These goals, by themselves, are unimpeachable
and certainly fall within the ambit of the police power of the State.
Yet the desirability of these ends do not sanctify any and all means
for their achievement. Those means must align with the
Constitution, and our emerging sophisticated analysis of its
guarantees to the people. The Bill of Rights stands as a rebuke to
the seductive theory of Macchiavelli, and, sometimes even, the
political majorities animated by his cynicism.
Even as we design the precedents that establish the framework for
analysis of due process or equal protection questions, the courts are
naturally inhibited by a due deference to the co-equal branches of
government as they exercise their political functions. But when we
are compelled to nullify executive or legislative actions, yet another
form of caution emerges. If the Court were animated by the same
passing fancies or turbulent emotions that motivate many political
decisions, judicial integrity is compromised by any perception that
the judiciary is merely the third political branch of government. We
derive our respect and good standing in the annals of history by
acting as judicious and neutral arbiters of the rule of law, and there
is no surer way to that end than through the development of
rigorous and sophisticated legal standards through which the courts
analyze the most fundamental and far-reaching constitutional
questions of the day.
B.
The primary constitutional question that confronts us is one of due
process, as guaranteed under Section 1, Article III of the
Constitution. Due process evades a precise definition.48 The purpose
of the guaranty is to prevent arbitrary governmental encroachment
against the life, liberty and property of individuals. The due process
guaranty serves as a protection against arbitrary regulation or
seizure. Even corporations and partnerships are protected by the
guaranty insofar as their property is concerned.
The due process guaranty has traditionally been interpreted as
imposing two related but distinct restrictions on government,
"procedural due process" and "substantive due process." Procedural
due process refers to the procedures that the government must
follow before it deprives a person of life, liberty, or property.49
Procedural due process concerns itself with government action
adhering to the established process when it makes an intrusion into
10
the private sphere. Examples range from the form of notice given to
the level of formality of a hearing.
If due process were confined solely to its procedural aspects, there
would arise absurd situation of arbitrary government action,
provided the proper formalities are followed. Substantive due
process completes the protection envisioned by the due process
clause. It inquires whether the government has sufficient
justification for depriving a person of life, liberty, or property.50
The question of substantive due process, moreso than most other
fields of law, has reflected dynamism in progressive legal thought
tied with the expanded acceptance of fundamental freedoms. Police
power, traditionally awesome as it may be, is now confronted with a
more rigorous level of analysis before it can be upheld. The vitality
though of constitutional due process has not been predicated on the
frequency with which it has been utilized to achieve a liberal result
for, after all, the libertarian ends should sometimes yield to the
prerogatives of the State. Instead, the due process clause has
acquired potency because of the sophisticated methodology that has
emerged to determine the proper metes and bounds for its
application.
C.
The general test of the validity of an ordinance on substantive due
process grounds is best tested when assessed with the evolved
footnote 4 test laid down by the U.S. Supreme Court in U.S. v.
Carolene Products.51 Footnote 4 of the Carolene Products case
acknowledged that the judiciary would defer to the legislature
unless there is a discrimination against a "discrete and insular"
minority or infringement of a "fundamental right." 52 Consequently,
two standards of judicial review were established: strict scrutiny for
laws dealing with freedom of the mind or restricting the political
process, and the rational basis standard of review for economic
legislation.
A third standard, denominated as heightened or immediate scrutiny,
was later adopted by the U.S. Supreme Court for evaluating
classifications based on gender53 and legitimacy.54 Immediate
scrutiny was adopted by the U.S. Supreme Court in Craig, 55 after
the Court declined to do so in Reed v. Reed.56 While the test may
have first been articulated in equal protection analysis, it has in the
United States since been applied in all substantive due process cases
as well.
We ourselves have often applied the rational basis test mainly in
analysis of equal protection challenges.57 Using the rational basis
examination, laws or ordinances are upheld if they rationally further
a legitimate governmental interest.58 Under intermediate review,
governmental interest is extensively examined and the availability
of less restrictive measures is considered.59 Applying strict scrutiny,
the focus is on the presence of compelling, rather than substantial,
governmental interest and on the absence of less restrictive means
for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny
refers to the standard for determining the quality and the amount of
governmental interest brought to justify the regulation of
fundamental freedoms.60 Strict scrutiny is used today to test the

validity of laws dealing with the regulation of speech, gender, or
race as well as other fundamental rights as expansion from its
earlier applications to equal protection.61 The United States
Supreme Court has expanded the scope of strict scrutiny to protect
fundamental rights such as suffrage,62 judicial access63 and
interstate travel.64
If we were to take the myopic view that an Ordinance should be
analyzed strictly as to its effect only on the petitioners at bar, then it
would seem that the only restraint imposed by the law which we are
capacitated to act upon is the injury to property sustained by the
petitioners, an injury that would warrant the application of the most
deferential standard – the rational basis test. Yet as earlier stated, we
recognize the capacity of the petitioners to invoke as well the
constitutional rights of their patrons – those persons who would be
deprived of availing short time access or wash-up rates to the
lodging establishments in question.
Viewed cynically, one might say that the infringed rights of these
customers were are trivial since they seem shorn of political
consequence. Concededly, these are not the sort of cherished rights
that, when proscribed, would impel the people to tear up their
cedulas. Still, the Bill of Rights does not shelter gravitas alone.
Indeed, it is those "trivial" yet fundamental freedoms – which the
people reflexively exercise any day without the impairing
awareness of their constitutional consequence – that accurately
reflect the degree of liberty enjoyed by the people. Liberty, as
integrally incorporated as a fundamental right in the Constitution, is
not a Ten Commandments-style enumeration of what may or what
may not be done; but rather an atmosphere of freedom where the
people do not feel labored under a Big Brother presence as they
interact with each other, their society and nature, in a manner
innately understood by them as inherent, without doing harm or
injury to others.
D.
The rights at stake herein fall within the same fundamental rights to
liberty which we upheld in City of Manila v. Hon. Laguio, Jr. We
expounded on that most primordial of rights, thus:
Liberty as guaranteed by the Constitution was defined by Justice
Malcolm to include "the right to exist and the right to be free from
arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen,
but is deemed to embrace the right of man to enjoy the facilities
with which he has been endowed by his Creator, subject only to
such restraint as are necessary for the common welfare."[ 65] In
accordance with this case, the rights of the citizen to be free to use
his faculties in all lawful ways; to live and work where he will; to
earn his livelihood by any lawful calling; and to pursue any
avocation are all deemed embraced in the concept of liberty.[66]
The U.S. Supreme Court in the case of Roth v. Board of Regents,
sought to clarify the meaning of "liberty." It said:
While the Court has not attempted to define with exactness the
liberty . . . guaranteed [by the Fifth and Fourteenth Amendments],
the term denotes not merely freedom from bodily restraint but also
the right of the individual to contract, to engage in any of the
11
common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according
to the dictates of his own conscience, and generally to enjoy those
privileges long recognized . . . as essential to the orderly pursuit of
happiness by free men. In a Constitution for a free people, there can
be no doubt that the meaning of "liberty" must be broad indeed. 67
[Citations omitted]
It cannot be denied that the primary animus behind the ordinance is
the curtailment of sexual behavior. The City asserts before this
Court that the subject establishments "have gained notoriety as
venue of ‘prostitution, adultery and fornications’ in Manila since
they ‘provide the necessary atmosphere for clandestine entry,
presence and exit and thus became the ‘ideal haven for prostitutes
and thrill-seekers.’"68 Whether or not this depiction of a mise-en-
scene of vice is accurate, it cannot be denied that legitimate sexual
behavior among willing married or consenting single adults which
is constitutionally protected69 will be curtailed as well, as it was in
the City of Manila case. Our holding therein retains significance for
our purposes:
The concept of liberty compels respect for the individual whose
claim to privacy and interference demands respect. As the case of
Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity.
His separateness, his isolation, are indefeasible; indeed, they are so
fundamental that they are the basis on which his civic obligations
are built. He cannot abandon the consequences of his isolation,
which are, broadly speaking, that his experience is private, and the
will built out of that experience personal to himself. If he surrenders
his will to others, he surrenders himself. If his will is set by the will
of others, he ceases to be a master of himself. I cannot believe that a
man no longer a master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized
in Morfe, the invasion of which should be justified by a compelling
state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully
deserving of constitutional protection. Governmental powers should
stop short of certain intrusions into the personal life of the citizen. 70
We cannot discount other legitimate activities which the Ordinance
would proscribe or impair. There are very legitimate uses for a wash
rate or renting the room out for more than twice a day. Entire
families are known to choose pass the time in a motel or hotel
whilst the power is momentarily out in their homes. In transit
passengers who wish to wash up and rest between trips have a
legitimate purpose for abbreviated stays in motels or hotels. Indeed
any person or groups of persons in need of comfortable private
spaces for a span of a few hours with purposes other than having
sex or using illegal drugs can legitimately look to staying in a motel
or hotel as a convenient alternative.
E.
That the Ordinance prevents the lawful uses of a wash rate
depriving patrons of a product and the petitioners of lucrative
business ties in with another constitutional requisite for the
legitimacy of the Ordinance as a police power measure. It must

appear that the interests of the public generally, as distinguished
from those of a particular class, require an interference with private
rights and the means must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive of
private rights.71 It must also be evident that no other alternative for
the accomplishment of the purpose less intrusive of private rights
can work. More importantly, a reasonable relation must exist
between the purposes of the measure and the means employed for
its accomplishment, for even under the guise of protecting the
public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded. 72
Lacking a concurrence of these requisites, the police measure shall
be struck down as an arbitrary intrusion into private rights. As held
in Morfe v. Mutuc, the exercise of police power is subject to
judicial review when life, liberty or property is affected. 73 However,
this is not in any way meant to take it away from the vastness of
State police power whose exercise enjoys the presumption of
validity.74
Similar to the Comelec resolution requiring newspapers to donate
advertising space to candidates, this Ordinance is a blunt and heavy
instrument.75 The Ordinance makes no distinction between places
frequented by patrons engaged in illicit activities and patrons
engaged in legitimate actions. Thus it prevents legitimate use of
places where illicit activities are rare or even unheard of. A plain
reading of section 3 of the Ordinance shows it makes no
classification of places of lodging, thus deems them all susceptible
to illicit patronage and subject them without exception to the
unjustified prohibition.
The Court has professed its deep sentiment and tenderness of the
Ermita-Malate area, its longtime home,76 and it is skeptical of those
who wish to depict our capital city – the Pearl of the Orient – as a
modern-day Sodom or Gomorrah for the Third World set. Those
still steeped in Nick Joaquin-dreams of the grandeur of Old Manila
will have to accept that Manila like all evolving big cities, will have
its problems. Urban decay is a fact of mega cities such as Manila,
and vice is a common problem confronted by the modern
metropolis wherever in the world. The solution to such perceived
decay is not to prevent legitimate businesses from offering a
legitimate product. Rather, cities revive themselves by offering
incentives for new businesses to sprout up thus attracting the
dynamism of individuals that would bring a new grandeur to
Manila.
The behavior which the Ordinance seeks to curtail is in fact already
prohibited and could in fact be diminished simply by applying
existing laws. Less intrusive measures such as curbing the
proliferation of prostitutes and drug dealers through active police
work would be more effective in easing the situation. So would the
strict enforcement of existing laws and regulations penalizing
prostitution and drug use. These measures would have minimal
intrusion on the businesses of the petitioners and other legitimate
merchants. Further, it is apparent that the Ordinance can easily be
circumvented by merely paying the whole day rate without any
hindrance to those engaged in illicit activities. Moreover, drug
dealers and prostitutes can in fact collect "wash rates" from their
clientele by charging their customers a portion of the rent for motel
rooms and even apartments.
12
IV.
We reiterate that individual rights may be adversely affected only to
the extent that may fairly be required by the legitimate demands of
public interest or public welfare. The State is a leviathan that must
be restrained from needlessly intruding into the lives of its citizens.
However well-intentioned the Ordinance may be, it is in effect an
arbitrary and whimsical intrusion into the rights of the
establishments as well as their patrons. The Ordinance needlessly
restrains the operation of the businesses of the petitioners as well as
restricting the rights of their patrons without sufficient justification.
The Ordinance rashly equates wash rates and renting out a room
more than twice a day with immorality without accommodating
innocuous intentions.
The promotion of public welfare and a sense of morality among
citizens deserves the full endorsement of the judiciary provided that
such measures do not trample rights this Court is sworn to protect. 77
The notion that the promotion of public morality is a function of the
State is as old as Aristotle.78 The advancement of moral relativism
as a school of philosophy does not de-legitimize the role of morality
in law, even if it may foster wider debate on which particular
behavior to penalize. It is conceivable that a society with relatively
little shared morality among its citizens could be functional so long
as the pursuit of sharply variant moral perspectives yields an
adequate accommodation of different interests.79
To be candid about it, the oft-quoted American maxim that "you
cannot legislate morality" is ultimately illegitimate as a matter of
law, since as explained by Calabresi, that phrase is more accurately
interpreted as meaning that efforts to legislate morality will fail if
they are widely at variance with public attitudes about right and
wrong.80 Our penal laws, for one, are founded on age-old moral
traditions, and as long as there are widely accepted distinctions
between right and wrong, they will remain so oriented.
Yet the continuing progression of the human story has seen not only
the acceptance of the right-wrong distinction, but also the advent of
fundamental liberties as the key to the enjoyment of life to the
fullest. Our democracy is distinguished from non-free societies not
with any more extensive elaboration on our part of what is moral
and immoral, but from our recognition that the individual liberty to
make the choices in our lives is innate, and protected by the State.
Independent and fair-minded judges themselves are under a moral
duty to uphold the Constitution as the embodiment of the rule of
law, by reason of their expression of consent to do so when they
take the oath of office, and because they are entrusted by the people
to uphold the law.81
Even as the implementation of moral norms remains an
indispensable complement to governance, that prerogative is hardly
absolute, especially in the face of the norms of due process of
liberty. And while the tension may often be left to the courts to
relieve, it is possible for the government to avoid the constitutional
conflict by employing more judicious, less drastic means to promote
morality.
WHEREFORE, the Petition is GRANTED. The Decision of the
Court of Appeals is REVERSED, and the Decision of the Regional
Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No.
 13

7774 is hereby declared UNCONSTITUTIONAL. No Nos. 78742, 79310, 79744, and 79777, July 14,
pronouncement as to costs. 1989, 175 SCRA 343; In Ermita-Malate, supra
note 1 at 324, the Court in fact noted: "if the
SO ORDERED. liberty involved were freedom of the mind or the
person, the standard for the validity of
government acts is much more rigorous and
DANTE O. TINGA
exacting, but where the liberty curtailed affects
Associate Justice
what are at the most rights of property, the
permissible scope of regulatory measures is
WE CONCUR: wider."

REYNATO S. PUNO 58
Central Bank Employee’s Association v.
Chief Justice Bangko Sentral ng Pilipinas, supra note 57.

LEONARDO A. CONSUELO YNARES- 60

Mendoza, J., Concurring Opinion in Estrada v.
QUISUMBING SANTIAGO Sandiganbayan, G.R. No. 148560, 19 November
Associate Justice Associate Justice 2001, 369 SCRA 394.
(On Official Leave) MA. ALICIA AUSTRIA-
ANTONIO T. CARPIO MARTINEZ 64
Shapiro v. Thompson, 394 U.S. 618 (1969). It
Associate Justice Associate Justice has been opined by Chemerinsky that the use of
CONCHITA CARPIO the equal protection clause was to avoid the use of
RENATO C. CORONA substantive due process since the latter fell into
MORALES
Associate Justice disfavor in the United States. See Erwin
Associate Justice
PRESBITERO J. VELASCO, Chemerinsky, Constitutional Law, Principles and
ADOLFO S. AZCUNA Policies (2nd ed. 2002).
JR.
Associate Justice
Associate Justice
69
"Motel patrons who are single and unmarried
MINITA V. CHICO- ANTONIO EDUARDO B.
may invoke this right to autonomy to consummate
NAZARIO NACHUR
their bonds in intimate sexual conduct within the
Associate Justice Associate Justice
motel's premises — be it stressed that their
TERESITA LEONARDO DE (On Sick Leave) consensual sexual behavior does not contravene
CASTRO ARTURO D. BRION any fundamental state policy as contained in the
Associate Justice Associate Justice Constitution. (See Concerned Employee v.
Glenda Espiritu Mayor, A.M. No. P-02-1564, 23
(On Official Leave) November 2004) Adults have a right to choose to
DIOSDADO M. PERALTA forge such relationships with others in the
Associate Justice confines of their own private lives and still retain
their dignity as free persons. The liberty protected
CERTIFICATION by the Constitution allows persons the right to
make this choice. Their right to liberty under the
due process clause gives them the full right to
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby engage in their conduct without intervention of
certified that the conclusions in the above Decision were reached in the government, as long as they do not run afoul
consultation before the case was assigned to the writer of the
of the law. Liberty should be the rule and restraint
opinion of the Court.
the exception.

REYNATO S. PUNO Liberty in the constitutional sense not

Chief Justice
Footnotes
3
Id. at 42-59. Penned by Associate Justice Jaime
M. Lantin, concurred in by Associate Justices
Ricardo P. Galvez (later, Solicitor-General) and
Antonio P. Solano.
57
Central Bank Employee’s Association v.
Bangko Sentral ng Pilipinas, 487 Phil. 531
(2004); Association of Small Landowners in the
Philippines v. Secretary of Agrarian Reform, G.R.
only means freedom from unlawful
government restraint; it must include
privacy as well, if it is to be a repository
of freedom. The right to be let alone is
the beginning of all freedom — it is the
most comprehensive of rights and the
right most valued by civilized men." City
of Manila v. Hon. Laguio, Jr. supra note
1 at 337-338.
77
City of Manila v. Hon. Laguio, Jr., supra note
1; De La Cruz, et al. v. Hon. Paras, et al., 208
Phil. 490 (1983); Ermita-Malate Hotel and Motel
 14

Operations Association, Inc. v. City Mayor of found on the statute books of many
Manila, supra note 42. states, punishing homosexual relations—
what they mean is that the law neither is
78
"The end of the state is not mere life; it is, supported by public opinion nor serves
rather, a good quality of life." Therefore any state any temporal purpose, even that of
"which is truly so called, and is not merely one in stability, that it is merely a vestige, an
name, must devote itself to the end of empty symbol.
encouraging goodness. Otherwise, a political
association sinks into a mere alliance…" The law
"should be a rule of life such as will make the
members of a [state] good and just." Otherwise it
"becomes a mere covenant – or (in the phrase of
the Sophist Lycophron) ‘a guarantor of men’s
rights against one another.’" Politics II.9.6-8.1280
31-1280bii; cited in Hamburger, M., Morals and
Law: The Growth of Aristotle’s Legal Theory
(1951 ed.), p. 178.

79
Greenwalt, K., Conflicts of Law and Morality
(1989 ed.), at 38.

80
Steven G., Render Unto Caesar that which is
Caesars, and unto God that which is God’s, 31
Harv. J.L. & Pub. Pol'y 495. He cites the example
of the failed Twentieth (?) Amendment to the
U.S. Constitution, which prohibited the sale and
consumption of liquor, where it was clear that the
State cannot justly and successfully regulate
consumption of alcohol, when huge portions of
the population engage in its consumption.

See also Posner, Richard H., The

Problematics of Moral And Legal
Theory, The Belknap Press of Harvard
University Press (2002). He writes:

. . . Holmes warned long ago of the

pitfalls of misunderstanding law by
taking its moral vocabulary too seriously.
A big part of legal education consists of
showing students how to skirt those
pitfalls. The law uses moral terms in part
because of its origin, in part to be
impressive, in part to speak a language
that the laity, to whom the commands of
the law are addressed, is more likely to
understand – and in part, because there is
a considerable overlap between law and
morality. The overlap, however, is too
limited to justify trying to align these
two systems of social control (the sort of
project that Islamic nations such as Iran,
Pakistan, and Afghanistan have been
engaged in of late). It is not a scandal
when the law to pronounce it out of
phase with current moral feeling. If often
is, and for good practical reasons (in
particular, the law is a flywheel, limiting
the effects of wide swings in public G.R. No. 118127
opinion). When people make that
criticism—as many do of the laws, still

79-100 minutes
EN BANC
G.R. No. 118127 April 12, 2005
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of
the City of Manila, HON. JOSELITO L. ATIENZA, in his
capacity as Vice-Mayor of the City of Manila and Presiding
Officer of the City Council of Manila, HON. ERNESTO A.
NIEVA, HON. GONZALO P. GONZALES, HON. AVELINO
S. CAILIAN, HON. ROBERTO C. OCAMPO, HON., in their
capacity as councilors of the City of Manila, Petitioner,
vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge,
RTC, Manila and MALATE TOURIST DEVELOPMENT
CORPORATION, Respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel
good after and what is immoral is what you feel
bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any
dishonorable act, if performed by oneself, is less
immoral than if performed by someone else, who
would be well-intentioned in his dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Court's commitment to the protection of morals is secondary to
its fealty to the fundamental law of the land. It is foremost a
guardian of the Constitution but not the conscience of individuals.
And if it need be, the Court will not hesitate to "make the hammer
fall, and heavily" in the words of Justice Laurel, and uphold the
constitutional guarantees when faced with laws that, though not
lacking in zeal to promote morality, nevertheless fail to pass the test
of constitutionality.
The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of
the Revised Rules on Civil Procedure seeking the reversal of the
Decision2 in Civil Case No. 93-66511 of the Regional Trial Court
(RTC) of Manila, Branch 18 (lower court),3 is the validity of
Ordinance No. 7783 (the Ordinance) of the City of Manila.4
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation
(MTDC) is a corporation engaged in the business of operating
hotels, motels, hostels and lodging houses.5 It built and opened
Victoria Court in Malate which was licensed as a motel although
15
duly accredited with the Department of Tourism as a hotel.6 On 28
June 1993, MTDC filed a Petition for Declaratory Relief with
Prayer for a Writ of Preliminary Injunction and/or Temporary
Restraining Order7 (RTC Petition) with the lower court impleading
as defendants, herein petitioners City of Manila, Hon. Alfredo S.
Lim (Lim), Hon. Joselito L. Atienza, and the members of the City
Council of Manila (City Council). MTDC prayed that the
Ordinance, insofar as it includes motels and inns as among its
prohibited establishments, be declared invalid and
unconstitutional.8
Enacted by the City Council9 on 9 March 1993 and approved by
petitioner City Mayor on 30 March 1993, the said Ordinance is
entitled–
AN ORDINANCE PROHIBITING THE
ESTABLISHMENT OR OPERATION OF
BUSINESSES PROVIDING CERTAIN FORMS
OF AMUSEMENT, ENTERTAINMENT,
SERVICES AND FACILITIES IN THE
ERMITA-MALATE AREA, PRESCRIBING
PENALTIES FOR VIOLATION THEREOF,
AND FOR OTHER PURPOSES.10
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and
ordinances to the contrary notwithstanding, no
person, partnership, corporation or entity
shall, in the Ermita-Malate area bounded by
Teodoro M. Kalaw Sr. Street in the North, Taft
Avenue in the East, Vito Cruz Street in the South
and Roxas Boulevard in the West, pursuant to
P.D. 499 be allowed or authorized to contract
and engage in, any business providing certain
forms of amusement, entertainment, services
and facilities where women are used as tools in
entertainment and which tend to disturb the
community, annoy the inhabitants, and
adversely affect the social and moral welfare of
the community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets

10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or
any person acting in behalf of the said officials
are prohibited from issuing permits,
temporary or otherwise, or from granting
licenses and accepting payments for the
operation of business enumerated in the
preceding section.
SEC. 3. Owners and/or operator of
establishments engaged in, or devoted to, the
businesses enumerated in Section 1 hereof are
hereby given three (3) months from the date of
approval of this ordinance within which to
wind up business operations or to transfer to
any place outside of the Ermita-Malate area or
convert said businesses to other kinds of
business allowable within the area, such as but
not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along
restaurants, with well-defined activities
for wholesome family entertainment that
cater to both local and foreign clientele.
10. Theaters engaged in the exhibition,
not only of motion pictures but also of
cultural shows, stage and theatrical
plays, art exhibitions, concerts and the
like.
11. Businesses allowable within the law
and medium intensity districts as
provided for in the zoning ordinances for
Metropolitan Manila, except new
warehouse or open-storage depot, dock
or yard, motor repair shop, gasoline
16
service station, light industry with any
machinery, or funeral establishments.
SEC. 4. Any person violating any provisions of
this ordinance, shall upon conviction, be
punished by imprisonment of one (1) year or
fine of FIVE THOUSAND (P5,000.00) PESOS,
or both, at the discretion of the Court,
PROVIDED, that in case of juridical person, the
President, the General Manager, or person-in-
charge of operation shall be liable thereof;
PROVIDED FURTHER, that in case of
subsequent violation and conviction, the
premises of the erring establishment shall be
closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon
approval.
Enacted by the City Council of Manila at its
regular session today, March 9, 1993.
Approved by His Honor, the Mayor on March 30,
1993. (Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously
and improperly included in its enumeration of prohibited
establishments, motels and inns such as MTDC's Victoria Court
considering that these were not establishments for "amusement" or
"entertainment" and they were not "services or facilities for
entertainment," nor did they use women as "tools for
entertainment," and neither did they "disturb the community,"
"annoy the inhabitants" or "adversely affect the social and moral
welfare of the community."11
MTDC further advanced that the Ordinance was invalid and
unconstitutional for the following reasons: (1) The City Council has
no power to prohibit the operation of motels as Section 458 (a) 4
(iv)12 of the Local Government Code of 1991 (the Code) grants to
the City Council only the power to regulate the establishment,
operation and maintenance of hotels, motels, inns, pension houses,
lodging houses and other similar establishments; (2) The Ordinance
is void as it is violative of Presidential Decree (P.D.) No. 49913
which specifically declared portions of the Ermita-Malate area as a
commercial zone with certain restrictions; (3) The Ordinance does
not constitute a proper exercise of police power as the compulsory
closure of the motel business has no reasonable relation to the
legitimate municipal interests sought to be protected; (4) The
Ordinance constitutes an ex post facto law by punishing the
operation of Victoria Court which was a legitimate business prior to
its enactment; (5) The Ordinance violates MTDC's constitutional
rights in that: (a) it is confiscatory and constitutes an invasion of
plaintiff's property rights; (b) the City Council has no power to find
as a fact that a particular thing is a nuisance per se nor does it have
the power to extrajudicially destroy it; and (6) The Ordinance
constitutes a denial of equal protection under the law as no
reasonable basis exists for prohibiting the operation of motels and
inns, but not pension houses, hotels, lodging houses or other similar
establishments, and for prohibiting said business in the Ermita-
Malate area but not outside of this area.14

In their Answer15 dated 23 July 1993, petitioners City of Manila
and Lim maintained that the City Council had the power to
"prohibit certain forms of entertainment in order to protect the
social and moral welfare of the community" as provided for in
Section 458 (a) 4 (vii) of the Local Government Code,16
which reads, thus:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod,
as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate
funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this
Code, and shall:
....
(4) Regulate activities relative to the use of land,
buildings and structures within the city in order to
promote the general welfare and for said purpose
shall:
....
(vii) Regulate the establishment,
operation, and maintenance of any
entertainment or amusement facilities,
including theatrical performances,
circuses, billiard pools, public dancing
schools, public dance halls, sauna baths,
massage parlors, and other places for
entertainment or amusement; regulate
such other events or activities for
amusement or entertainment, particularly
those which tend to disturb the
community or annoy the inhabitants, or
require the suspension or suppression of
the same; or, prohibit certain forms of
amusement or entertainment in order to
protect the social and moral welfare of
the community.
Citing Kwong Sing v. City of Manila,17 petitioners insisted that the
power of regulation spoken of in the above-quoted provision
included the power to control, to govern and to restrain places of
exhibition and amusement.18
Petitioners likewise asserted that the Ordinance was enacted by the
City Council of Manila to protect the social and moral welfare of
the community in conjunction with its police power as found in
Article III, Section 18(kk) of Republic Act No. 409,19 otherwise
known as the Revised Charter of the City of Manila (Revised
Charter of Manila)20 which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
17
. . .
Section 18. Legislative powers. – The Municipal
Board shall have the following legislative powers:
. . .
(kk) To enact all ordinances it may deem
necessary and proper for the sanitation and safety,
the furtherance of the prosperity, and the
promotion of the morality, peace, good order,
comfort, convenience, and general welfare of the
city and its inhabitants, and such others as may be
necessary to carry into effect and discharge the
powers and duties conferred by this chapter; and
to fix penalties for the violation of ordinances
which shall not exceed two hundred pesos fine or
six months' imprisonment, or both such fine and
imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption of
validity; hence, private respondent had the burden to prove its
illegality or unconstitutionality.21
Petitioners also maintained that there was no inconsistency between
P.D. 499 and the Ordinance as the latter simply disauthorized
certain forms of businesses and allowed the Ermita-Malate area to
remain a commercial zone.22 The Ordinance, the petitioners
likewise claimed, cannot be assailed as ex post facto as it was
prospective in operation.23 The Ordinance also did not infringe the
equal protection clause and cannot be denounced as class legislation
as there existed substantial and real differences between the Ermita-
Malate area and other places in the City of Manila.24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge
Laguio) issued an ex-parte temporary restraining order against the
enforcement of the Ordinance.25 And on 16 July 1993, again in an
intrepid gesture, he granted the writ of preliminary injunction
prayed for by MTDC.26
After trial, on 25 November 1994, Judge Laguio rendered the
assailed Decision, enjoining the petitioners from implementing the
Ordinance. The dispositive portion of said Decision reads:27
WHEREFORE, judgment is hereby rendered
declaring Ordinance No. 778[3], Series of 1993,
of the City of Manila null and void, and making
permanent the writ of preliminary injunction that
had been issued by this Court against the
defendant. No costs.
SO ORDERED.28
Petitioners filed with the lower court a Notice of Appeal29 on 12
December 1994, manifesting that they are elevating the case to this
Court under then Rule 42 on pure questions of law.30
On 11 January 1995, petitioners filed the present Petition, alleging
that the following errors were committed by the lower court in its

ruling: (1) It erred in concluding that the subject ordinance is ultra
vires, or otherwise, unfair, unreasonable and oppressive exercise of
police power; (2) It erred in holding that the questioned Ordinance
contravenes P.D. 49931 which allows operators of all kinds of
commercial establishments, except those specified therein; and (3)
It erred in declaring the Ordinance void and unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in essence
repeat the assertions they made before the lower court. They
contend that the assailed Ordinance was enacted in the exercise of
the inherent and plenary power of the State and the general welfare
clause exercised by local government units provided for in Art. 3,
Sec. 18 (kk) of the Revised Charter of Manila and conjunctively,
Section 458 (a) 4 (vii) of the Code.34 They allege that the
Ordinance is a valid exercise of police power; it does not
contravene P.D. 499; and that it enjoys the presumption of
validity.35
In its Memorandum36 dated 27 May 1996, private respondent
maintains that the Ordinance is ultra vires and that it is void for
being repugnant to the general law. It reiterates that the questioned
Ordinance is not a valid exercise of police power; that it is violative
of due process, confiscatory and amounts to an arbitrary
interference with its lawful business; that it is violative of the equal
protection clause; and that it confers on petitioner City Mayor or
any officer unregulated discretion in the execution of the Ordinance
absent rules to guide and control his actions.
This is an opportune time to express the Court's deep sentiment and
tenderness for the Ermita-Malate area being its home for several
decades. A long-time resident, the Court witnessed the area's many
turn of events. It relished its glory days and endured its days of
infamy. Much as the Court harks back to the resplendent era of the
Old Manila and yearns to restore its lost grandeur, it believes that
the Ordinance is not the fitting means to that end. The Court is of
the opinion, and so holds, that the lower court did not err in
declaring the Ordinance, as it did, ultra vires and therefore null and
void.
The Ordinance is so replete with constitutional infirmities that
almost every sentence thereof violates a constitutional provision.
The prohibitions and sanctions therein transgress the cardinal rights
of persons enshrined by the Constitution. The Court is called upon
to shelter these rights from attempts at rendering them worthless.
The tests of a valid ordinance are well established. A long line of
decisions has held that for an ordinance to be valid, it must not only
be within the corporate powers of the local government unit to enact
and must be passed according to the procedure prescribed by law,
it must also conform to the following substantive requirements: (1)
must not contravene the Constitution or any statute; (2) must not be
unfair or oppressive; (3) must not be partial or discriminatory; (4)
must not prohibit but may regulate trade; (5) must be general and
consistent with public policy; and (6) must not be unreasonable.37
Anent the first criterion, ordinances shall only be valid when they
are not contrary to the Constitution and to the laws.38 The
Ordinance must satisfy two requirements: it must pass muster under
the test of constitutionality and the test of consistency with the
prevailing laws. That ordinances should be constitutional uphold the
18
principle of the supremacy of the Constitution. The requirement that
the enactment must not violate existing law gives stress to the
precept that local government units are able to legislate only by
virtue of their derivative legislative power, a delegation of
legislative power from the national legislature. The delegate cannot
be superior to the principal or exercise powers higher than those of
the latter.39
This relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in
the Constitution strengthening the policy of local autonomy. The
national legislature is still the principal of the local government
units, which cannot defy its will or modify or violate it.40
The Ordinance was passed by the City Council in the exercise of its
police power, an enactment of the City Council acting as agent of
Congress. Local government units, as agencies of the State, are
endowed with police power in order to effectively accomplish and
carry out the declared objects of their creation.41 This delegated
police power is found in Section 16 of the Code, known as the
general welfare clause, viz:
SECTION 16. General Welfare.Every local
government unit shall exercise the powers
expressly granted, those necessarily implied
therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and
effective governance, and those which are
essential to the promotion of the general welfare.
Within their respective territorial jurisdictions,
local government units shall ensure and support,
among other things, the preservation and
enrichment of culture, promote health and safety,
enhance the right of the people to a balanced
ecology, encourage and support the development
of appropriate and self-reliant scientific and
technological capabilities, improve public morals,
enhance economic prosperity and social justice,
promote full employment among their residents,
maintain peace and order, and preserve the
comfort and convenience of their inhabitants.
Local government units exercise police power through their
respective legislative bodies; in this case, the sangguniang
panlungsod or the city council. The Code empowers the legislative
bodies to "enact ordinances, approve resolutions and appropriate
funds for the general welfare of the province/city/municipality and
its inhabitants pursuant to Section 16 of the Code and in the proper
exercise of the corporate powers of the province/city/ municipality
provided under the Code.42 The inquiry in this Petition is
concerned with the validity of the exercise of such delegated power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-
reaching, is subordinate to the constitutional limitations thereon;
and is subject to the limitation that its exercise must be reasonable
and for the public good.43 In the case at bar, the enactment of the

Ordinance was an invalid exercise of delegated power as it is
unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the
protection of life, liberty, and property, and the
promotion of the general welfare are essential for
the enjoyment by all the people of the blessings of
democracy.44
SEC. 14. The State recognizes the role of women
in nation-building, and shall ensure the
fundamental equality before the law of women
and men.45
SEC. 1. No person shall be deprived of life,
liberty or property without due process of law, nor
shall any person be denied the equal protection of
laws.46
Sec. 9. Private property shall not be taken for
public use without just compensation.47
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat
"(N)o person shall be deprived of life, liberty or property without
due process of law. . . ."48
There is no controlling and precise definition of due process. It
furnishes though a standard to which governmental action should
conform in order that deprivation of life, liberty or property, in each
appropriate case, be valid. This standard is aptly described as a
responsiveness to the supremacy of reason, obedience to the dictates
of justice,49 and as such it is a limitation upon the exercise of the
police power.50
The purpose of the guaranty is to prevent governmental
encroachment against the life, liberty and property of individuals; to
secure the individual from the arbitrary exercise of the powers of
the government, unrestrained by the established principles of private
rights and distributive justice; to protect property from confiscation
by legislative enactments, from seizure, forfeiture, and destruction
without a trial and conviction by the ordinary mode of judicial
procedure; and to secure to all persons equal and impartial justice
and the benefit of the general law.51
The guaranty serves as a protection against arbitrary regulation, and
private corporations and partnerships are "persons" within the scope
of the guaranty insofar as their property is concerned.52
This clause has been interpreted as imposing two separate limits on
government, usually called "procedural due process" and
"substantive due process."
Procedural due process, as the phrase implies, refers to the
procedures that the government must follow before it deprives a
19
person of life, liberty, or property. Classic procedural due process
issues are concerned with what kind of notice and what form of
hearing the government must provide when it takes a particular
action.53
Substantive due process, as that phrase connotes, asks whether the
government has an adequate reason for taking away a person's life,
liberty, or property. In other words, substantive due process looks to
whether there is a sufficient justification for the government's
action.54 Case law in the United States (U.S.) tells us that whether
there is such a justification depends very much on the level of
scrutiny used.55 For example, if a law is in an area where only
rational basis review is applied, substantive due process is met so
long as the law is rationally related to a legitimate government
purpose. But if it is an area where strict scrutiny is used, such as for
protecting fundamental rights, then the government will meet
substantive due process only if it can prove that the law is necessary
to achieve a compelling government purpose.56
The police power granted to local government units must always be
exercised with utmost observance of the rights of the people to due
process and equal protection of the law. Such power cannot be
exercised whimsically, arbitrarily or despotically57 as its exercise is
subject to a qualification, limitation or restriction demanded by the
respect and regard due to the prescription of the fundamental law,
particularly those forming part of the Bill of Rights. Individual
rights, it bears emphasis, may be adversely affected only to the
extent that may fairly be required by the legitimate demands of
public interest or public welfare.58 Due process requires the
intrinsic validity of the law in interfering with the rights of the
person to his life, liberty and property.59
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale
for the enactment of the Ordinance, and to free it from the
imputation of constitutional infirmity, not only must it appear that
the interests of the public generally, as distinguished from those of a
particular class, require an interference with private rights, but the
means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals.60 It must be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can
work. A reasonable relation must exist between the purposes of the
police measure and the means employed for its accomplishment, for
even under the guise of protecting the public interest, personal
rights and those pertaining to private property will not be permitted
to be arbitrarily invaded.61
Lacking a concurrence of these two requisites, the police measure
shall be struck down as an arbitrary intrusion into private rights62
a violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills
purportedly spawned by the establishments in the Ermita-Malate
area which are allegedly operated under the deceptive veneer of
legitimate, licensed and tax-paying nightclubs, bars, karaoke bars,
girlie houses, cocktail lounges, hotels and motels. Petitioners insist
that even the Court in the case of Ermita-Malate Hotel and Motel

Operators Association, Inc. v. City Mayor of Manila63 had already
taken judicial notice of the "alarming increase in the rate of
prostitution, adultery and fornication in Manila traceable in great
part to existence of motels, which provide a necessary atmosphere
for clandestine entry, presence and exit and thus become the ideal
haven for prostitutes and thrill-seekers."64
The object of the Ordinance was, accordingly, the promotion and
protection of the social and moral values of the community.
Granting for the sake of argument that the objectives of the
Ordinance are within the scope of the City Council's police powers,
the means employed for the accomplishment thereof were
unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of
Manila to make all reasonable regulations looking to the promotion
of the moral and social values of the community. However, the
worthy aim of fostering public morals and the eradication of the
community's social ills can be achieved through means less
restrictive of private rights; it can be attained by reasonable
restrictions rather than by an absolute prohibition. The closing down
and transfer of businesses or their conversion into businesses
"allowed" under the Ordinance have no reasonable relation to the
accomplishment of its purposes. Otherwise stated, the prohibition of
the enumerated establishments will not per se protect and promote
the social and moral welfare of the community; it will not in itself
eradicate the alluded social ills of prostitution, adultery, fornication
nor will it arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with
houses of ill-repute and establishments of the like which the City
Council may lawfully prohibit,65 it is baseless and insupportable to
bring within that classification sauna parlors, massage parlors,
karaoke bars, night clubs, day clubs, super clubs, discotheques,
cabarets, dance halls, motels and inns. This is not warranted under
the accepted definitions of these terms. The enumerated
establishments are lawful pursuits which are not per se offensive to
the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs
and as venues to further the illegal prostitution is of no moment. We
lay stress on the acrid truth that sexual immorality, being a human
frailty, may take place in the most innocent of places that it may
even take place in the substitute establishments enumerated under
Section 3 of the Ordinance. If the flawed logic of the Ordinance
were to be followed, in the remote instance that an immoral sexual
act transpires in a church cloister or a court chamber, we would
behold the spectacle of the City of Manila ordering the closure of
the church or court concerned. Every house, building, park, curb,
street or even vehicles for that matter will not be exempt from the
prohibition. Simply because there are no "pure" places where there
are impure men. Indeed, even the Scripture and the Tradition of
Christians churches continually recall the presence and universality
of sin in man's history.66
The problem, it needs to be pointed out, is not the establishment,
which by its nature cannot be said to be injurious to the health or
comfort of the community and which in itself is amoral, but the
deplorable human activity that may occur within its premises. While
a motel may be used as a venue for immoral sexual activity, it
cannot for that reason alone be punished. It cannot be classified as a
20
house of ill-repute or as a nuisance per se on a mere likelihood or a
naked assumption. If that were so and if that were allowed, then the
Ermita-Malate area would not only be purged of its supposed social
ills, it would be extinguished of its soul as well as every human
activity, reprehensible or not, in its every nook and cranny would be
laid bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the
core issues of morality. Try as the Ordinance may to shape
morality, it should not foster the illusion that it can make a moral
man out of it because immorality is not a thing, a building or
establishment; it is in the hearts of men. The City Council instead
should regulate human conduct that occurs inside the
establishments, but not to the detriment of liberty and privacy which
are covenants, premiums and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable social
ills is commendable, they unwittingly punish even the proprietors
and operators of "wholesome," "innocent" establishments. In the
instant case, there is a clear invasion of personal or property rights,
personal in the case of those individuals desirous of owning,
operating and patronizing those motels and property in terms of the
investments made and the salaries to be paid to those therein
employed. If the City of Manila so desires to put an end to
prostitution, fornication and other social ills, it can instead impose
reasonable regulations such as daily inspections of the
establishments for any violation of the conditions of their licenses
or permits; it may exercise its authority to suspend or revoke their
licenses for these violations;67 and it may even impose increased
license fees. In other words, there are other means to reasonably
accomplish the desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage
parlors, karaoke bars, beerhouses, night clubs, day clubs, super
clubs, discotheques, cabarets, dance halls, motels and inns in the
Ermita-Malate area. In Section 3 thereof, owners and/or operators of
the enumerated establishments are given three (3) months from the
date of approval of the Ordinance within which "to wind up
business operations or to transfer to any place outside the Ermita-
Malate area or convert said businesses to other kinds of business
allowable within the area." Further, it states in Section 4 that in
cases of subsequent violations of the provisions of the Ordinance,
the "premises of the erring establishment shall be closed and
padlocked permanently."
It is readily apparent that the means employed by the Ordinance for
the achievement of its purposes, the governmental interference
itself, infringes on the constitutional guarantees of a person's
fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice
Malcolm to include "the right to exist and the right to be free from
arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen,
but is deemed to embrace the right of man to enjoy the facilities
with which he has been endowed by his Creator, subject only to
such restraint as are necessary for the common welfare."68 In

accordance with this case, the rights of the citizen to be free to use
his faculties in all lawful ways; to live and work where he will; to
earn his livelihood by any lawful calling; and to pursue any
avocation are all deemed embraced in the concept of liberty.69
The U.S. Supreme Court in the case of Roth v. Board of Regents,70
sought to clarify the meaning of "liberty." It said:
While the Court has not attempted to define with
exactness the liberty. . . guaranteed [by the Fifth
and Fourteenth Amendments], the term denotes
not merely freedom from bodily restraint but also
the right of the individual to contract, to engage in
any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and
bring up children, to worship God according to
the dictates of his own conscience, and generally
to enjoy those privileges long recognized…as
essential to the orderly pursuit of happiness by
free men. In a Constitution for a free people, there
can be no doubt that the meaning of "liberty"
must be broad indeed.
In another case, it also confirmed that liberty protected by the due
process clause includes personal decisions relating to marriage,
procreation, contraception, family relationships, child rearing, and
education. In explaining the respect the Constitution demands for
the autonomy of the person in making these choices, the U.S.
Supreme Court explained:
These matters, involving the most intimate and
personal choices a person may make in a lifetime,
choices central to personal dignity and autonomy,
are central to the liberty protected by the
Fourteenth Amendment. At the heart of liberty is
the right to define one's own concept of existence,
of meaning, of universe, and of the mystery of
human life. Beliefs about these matters could not
define the attributes of personhood where they
formed under compulsion of the State.71
Persons desirous to own, operate and patronize the enumerated
establishments under Section 1 of the Ordinance may seek
autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right
to autonomy to consummate their bonds in intimate sexual conduct
within the motel's premisesbe it stressed that their consensual
sexual behavior does not contravene any fundamental state policy as
contained in the Constitution.72 Adults have a right to choose to
forge such relationships with others in the confines of their own
private lives and still retain their dignity as free persons. The liberty
protected by the Constitution allows persons the right to make this
choice.73 Their right to liberty under the due process clause gives
them the full right to engage in their conduct without intervention of
the government, as long as they do not run afoul of the law. Liberty
should be the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from
unlawful government restraint; it must include privacy as well, if it
21
is to be a repository of freedom. The right to be let alone is the
beginning of all freedomit is the most comprehensive of rights
and the right most valued by civilized men.74
The concept of liberty compels respect for the individual whose
claim to privacy and interference demands respect. As the case of
Morfe v. Mutuc,75 borrowing the words of Laski, so very aptly
stated:
Man is one among many, obstinately refusing
reduction to unity. His separateness, his isolation,
are indefeasible; indeed, they are so fundamental
that they are the basis on which his civic
obligations are built. He cannot abandon the
consequences of his isolation, which are, broadly
speaking, that his experience is private, and the
will built out of that experience personal to
himself. If he surrenders his will to others, he
surrenders himself. If his will is set by the will of
others, he ceases to be a master of himself. I
cannot believe that a man no longer a master of
himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized
in Morfe, the invasion of which should be justified by a compelling
state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully
deserving of constitutional protection. Governmental powers should
stop short of certain intrusions into the personal life of the citizen.76
There is a great temptation to have an extended discussion on these
civil liberties but the Court chooses to exercise restraint and restrict
itself to the issues presented when it should. The previous
pronouncements of the Court are not to be interpreted as a license
for adults to engage in criminal conduct. The reprehensibility of
such conduct is not diminished. The Court only reaffirms and
guarantees their right to make this choice. Should they be
prosecuted for their illegal conduct, they should suffer the
consequences of the choice they have made. That, ultimately, is
their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it
substantially divests the respondent of the beneficial use of its
property.77 The Ordinance in Section 1 thereof forbids the running
of the enumerated businesses in the Ermita-Malate area and in
Section 3 instructs its owners/operators to wind up business
operations or to transfer outside the area or convert said businesses
into allowed businesses. An ordinance which permanently restricts
the use of property that it can not be used for any reasonable
purpose goes beyond regulation and must be recognized as a taking
of the property without just compensation.78 It is intrusive and
violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that
"private property shall not be taken for public use without just
compensation." The provision is the most important protection of
property rights in the Constitution. This is a restriction on the

general power of the government to take property. The
constitutional provision is about ensuring that the government does
not confiscate the property of some to give it to others. In part too, it
is about loss spreading. If the government takes away a person's
property to benefit society, then society should pay. The principal
purpose of the guarantee is "to bar the Government from forcing
some people alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole.79
There are two different types of taking that can be identified. A
"possessory" taking occurs when the government confiscates or
physically occupies property. A "regulatory" taking occurs when the
government's regulation leaves no reasonable economically viable
use of the property.80
In the landmark case of Pennsylvania Coal v. Mahon,81 it was held
that a taking also could be found if government regulation of the use
of property went "too far." When regulation reaches a certain
magnitude, in most if not in all cases there must be an exercise of
eminent domain and compensation to support the act. While
property may be regulated to a certain extent, if regulation goes too
far it will be recognized as a taking.82
No formula or rule can be devised to answer the questions of what
is too far and when regulation becomes a taking. In Mahon, Justice
Holmes recognized that it was "a question of degree and therefore
cannot be disposed of by general propositions." On many other
occasions as well, the U.S. Supreme Court has said that the issue of
when regulation constitutes a taking is a matter of considering the
facts in each case. The Court asks whether justice and fairness
require that the economic loss caused by public action must be
compensated by the government and thus borne by the public as a
whole, or whether the loss should remain concentrated on those few
persons subject to the public action.83
What is crucial in judicial consideration of regulatory takings is that
government regulation is a taking if it leaves no reasonable
economically viable use of property in a manner that interferes with
reasonable expectations for use.84 A regulation that permanently
denies all economically beneficial or productive use of land is, from
the owner's point of view, equivalent to a "taking" unless principles
of nuisance or property law that existed when the owner acquired
the land make the use prohibitable.85 When the owner of real
property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to leave his
property economically idle, he has suffered a taking.86
A regulation which denies all economically beneficial or productive
use of land will require compensation under the takings clause.
Where a regulation places limitations on land that fall short of
eliminating all economically beneficial use, a taking nonetheless
may have occurred, depending on a complex of factors including
the regulation's economic effect on the landowner, the extent to
which the regulation interferes with reasonable investment-backed
expectations and the character of government action. These
inquiries are informed by the purpose of the takings clause which is
to prevent the government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be borne by
the public as a whole.87
22
A restriction on use of property may also constitute a "taking" if not
reasonably necessary to the effectuation of a substantial public
purpose or if it has an unduly harsh impact on the distinct
investment-backed expectations of the owner.88
The Ordinance gives the owners and operators of the "prohibited"
establishments three (3) months from its approval within which to
"wind up business operations or to transfer to any place outside of
the Ermita-Malate area or convert said businesses to other kinds of
business allowable within the area." The directive to "wind up
business operations" amounts to a closure of the establishment, a
permanent deprivation of property, and is practically
confiscatory. Unless the owner converts his establishment to
accommodate an "allowed" business, the structure which housed the
previous business will be left empty and gathering dust. Suppose he
transfers it to another area, he will likewise leave the entire
establishment idle. Consideration must be given to the substantial
amount of money invested to build the edifices which the owner
reasonably expects to be returned within a period of time. It is
apparent that the Ordinance leaves no reasonable economically
viable use of property in a manner that interferes with reasonable
expectations for use.
The second and third options to transfer to any place outside of
the Ermita-Malate area or to convert into allowed businessesare
confiscatory as well. The penalty of permanent closure in cases of
subsequent violations found in Section 4 of the Ordinance is also
equivalent to a "taking" of private property.
The second option instructs the owners to abandon their property
and build another one outside the Ermita-Malate area. In every
sense, it qualifies as a taking without just compensation with an
additional burden imposed on the owner to build another
establishment solely from his coffers. The proffered solution does
not put an end to the "problem," it merely relocates it. Not only is
this impractical, it is unreasonable, onerous and oppressive. The
conversion into allowed enterprises is just as ridiculous. How may
the respondent convert a motel into a restaurant or a coffee shop, art
gallery or music lounge without essentially destroying its property?
This is a taking of private property without due process of law, nay,
even without compensation.
The penalty of closure likewise constitutes unlawful taking that
should be compensated by the government. The burden on the
owner to convert or transfer his business, otherwise it will be closed
permanently after a subsequent violation should be borne by the
public as this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning
ordinance. A zoning ordinance, although a valid exercise of police
power, which limits a "wholesome" property to a use which can not
reasonably be made of it constitutes the taking of such property
without just compensation. Private property which is not noxious
nor intended for noxious purposes may not, by zoning, be destroyed
without compensation. Such principle finds no support in the
principles of justice as we know them. The police powers of local
government units which have always received broad and liberal
interpretation cannot be stretched to cover this particular taking.

Distinction should be made between destruction from necessity and
eminent domain. It needs restating that the property taken in the
exercise of police power is destroyed because it is noxious or
intended for a noxious purpose while the property taken under the
power of eminent domain is intended for a public use or purpose
and is therefore "wholesome."89 If it be of public benefit that a
"wholesome" property remain unused or relegated to a particular
purpose, then certainly the public should bear the cost of reasonable
compensation for the condemnation of private property for public
use.90
Further, the Ordinance fails to set up any standard to guide or limit
the petitioners' actions. It in no way controls or guides the discretion
vested in them. It provides no definition of the establishments
covered by it and it fails to set forth the conditions when the
establishments come within its ambit of prohibition. The Ordinance
confers upon the mayor arbitrary and unrestricted power to close
down establishments. Ordinances such as this, which make possible
abuses in its execution, depending upon no conditions or
qualifications whatsoever other than the unregulated arbitrary will
of the city authorities as the touchstone by which its validity is to be
tested, are unreasonable and invalid. The Ordinance should have
established a rule by which its impartial enforcement could be
secured.91
Ordinances placing restrictions upon the lawful use of property
must, in order to be valid and constitutional, specify the rules and
conditions to be observed and conduct to avoid; and must not admit
of the exercise, or of an opportunity for the exercise, of unbridled
discretion by the law enforcers in carrying out its provisions.92
Thus, in Coates v. City of Cincinnati,93 as cited in People v.
Nazario,94 the U.S. Supreme Court struck down an ordinance
that had made it illegal for "three or more persons to assemble on
any sidewalk and there conduct themselves in a manner annoying to
persons passing by." The ordinance was nullified as it imposed no
standard at all "because one may never know in advance what
'annoys some people but does not annoy others.' "
Similarly, the Ordinance does not specify the standards to ascertain
which establishments "tend to disturb the community," "annoy the
inhabitants," and "adversely affect the social and moral welfare of
the community." The cited case supports the nullification of the
Ordinance for lack of comprehensible standards to guide the law
enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated
establishments without infringing the due process clause. These
lawful establishments may be regulated, but not prevented from
carrying on their business. This is a sweeping exercise of police
power that is a result of a lack of imagination on the part of the City
Council and which amounts to an interference into personal and
private rights which the Court will not countenance. In this regard,
we take a resolute stand to uphold the constitutional guarantee of
the right to liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable
regulation which is a far cry from the ill-considered Ordinance
enacted by the City Council.
23
In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a
comprehensive ordinance regulating "sexually oriented businesses,"
which are defined to include adult arcades, bookstores, video stores,
cabarets, motels, and theaters as well as escort agencies, nude model
studio and sexual encounter centers. Among other things, the
ordinance required that such businesses be licensed. A group of
motel owners were among the three groups of businesses that filed
separate suits challenging the ordinance. The motel owners asserted
that the city violated the due process clause by failing to produce
adequate support for its supposition that renting room for fewer than
ten (10) hours resulted in increased crime and other secondary
effects. They likewise argued than the ten (10)-hour limitation on
the rental of motel rooms placed an unconstitutional burden on the
right to freedom of association. Anent the first contention, the U.S.
Supreme Court held that the reasonableness of the legislative
judgment combined with a study which the city considered, was
adequate to support the city's determination that motels permitting
room rentals for fewer than ten (10 ) hours should be included
within the licensing scheme. As regards the second point, the Court
held that limiting motel room rentals to ten (10) hours will have no
discernible effect on personal bonds as those bonds that are formed
from the use of a motel room for fewer than ten (10) hours are not
those that have played a critical role in the culture and traditions of
the nation by cultivating and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated
the targeted businesses. It imposed reasonable restrictions; hence,
its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association,
Inc. v. City Mayor of Manila,96 it needs pointing out, is also
different from this case in that what was involved therein was a
measure which regulated the mode in which motels may conduct
business in order to put an end to practices which could encourage
vice and immorality. Necessarily, there was no valid objection on
due process or equal protection grounds as the ordinance did not
prohibit motels. The Ordinance in this case however is not a
regulatory measure but is an exercise of an assumed power to
prohibit.97
The foregoing premises show that the Ordinance is an unwarranted
and unlawful curtailment of property and personal rights of citizens.
For being unreasonable and an undue restraint of trade, it cannot,
even under the guise of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and
responsibilities imposed. Similar subjects, in other words, should
not be treated differently, so as to give undue favor to some and
unjustly discriminate against others.98 The guarantee means that no
person or class of persons shall be denied the same protection of
laws which is enjoyed by other persons or other classes in like
circumstances.99 The "equal protection of the laws is a pledge of
the protection of equal laws."100 It limits governmental
discrimination. The equal protection clause extends to artificial
persons but only insofar as their property is concerned.101

The Court has explained the scope of the equal protection clause in
this wise:
… What does it signify? To quote from J.M.
Tuason & Co. v. Land Tenure Administration:
"The ideal situation is for the law's benefits to be
available to all, that none be placed outside the
sphere of its coverage. Only thus could chance
and favor be excluded and the affairs of men
governed by that serene and impartial uniformity,
which is of the very essence of the idea of law."
There is recognition, however, in the opinion that
what in fact exists "cannot approximate the ideal.
Nor is the law susceptible to the reproach that it
does not take into account the realities of the
situation. The constitutional guarantee then is not
to be given a meaning that disregards what is,
what does in fact exist. To assure that the general
welfare be promoted, which is the end of law, a
regulatory measure may cut into the rights to
liberty and property. Those adversely affected
may under such circumstances invoke the equal
protection clause only if they can show that the
governmental act assailed, far from being inspired
by the attainment of the common weal was
prompted by the spirit of hostility, or at the very
least, discrimination that finds no support in
reason." Classification is thus not ruled out, it
being sufficient to quote from the Tuason decision
anew "that the laws operate equally and uniformly
on all persons under similar circumstances or that
all persons must be treated in the same manner,
the conditions not being different, both in the
privileges conferred and the liabilities imposed.
Favoritism and undue preference cannot be
allowed. For the principle is that equal protection
and security shall be given to every person under
circumstances which, if not identical, are
analogous. If law be looked upon in terms of
burden or charges, those that fall within a class
should be treated in the same fashion, whatever
restrictions cast on some in the group equally
binding on the rest.102
Legislative bodies are allowed to classify the subjects of legislation.
If the classification is reasonable, the law may operate only on some
and not all of the people without violating the equal protection
clause.103 The classification must, as an indispensable requisite,
not be arbitrary. To be valid, it must conform to the following
requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions
only.
4) It must apply equally to all members of the
class.104
24
In the Court's view, there are no substantial distinctions between
motels, inns, pension houses, hotels, lodging houses or other similar
establishments. By definition, all are commercial establishments
providing lodging and usually meals and other services for the
public. No reason exists for prohibiting motels and inns but not
pension houses, hotels, lodging houses or other similar
establishments. The classification in the instant case is invalid as
similar subjects are not similarly treated, both as to rights conferred
and obligations imposed. It is arbitrary as it does not rest on
substantial distinctions bearing a just and fair relation to the purpose
of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business
and operation of motels in the Ermita-Malate area but not outside of
this area. A noxious establishment does not become any less
noxious if located outside the area.
The standard "where women are used as tools for entertainment" is
also discriminatory as prostitutionone of the hinted ills the
Ordinance aims to banishis not a profession exclusive to women.
Both men and women have an equal propensity to engage in
prostitution. It is not any less grave a sin when men engage in it.
And why would the assumption that there is an ongoing immoral
activity apply only when women are employed and be inapposite
when men are in harness? This discrimination based on gender
violates equal protection as it is not substantially related to
important government objectives.105 Thus, the discrimination is
invalid.
Failing the test of constitutionality, the Ordinance likewise failed to
pass the test of consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely
empowers local government units to regulate, and not prohibit, the
establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the
establishment, operation, and maintenance of motels, hotels and
other similar establishments is found in Section 458 (a) 4 (iv),
which provides that:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod,
as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate
funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this
Code, and shall:
. . .
(4) Regulate activities relative to the use of land,
buildings and structures within the city in order to
promote the general welfare and for said purpose
shall:

. . .
(iv) Regulate the establishment, operation and
maintenance of cafes, restaurants, beerhouses,
hotels, motels, inns, pension houses, lodging
houses, and other similar establishments,
including tourist guides and transports . . . .
While its power to regulate the establishment, operation and
maintenance of any entertainment or amusement facilities, and to
prohibit certain forms of amusement or entertainment is provided
under Section 458 (a) 4 (vii) of the Code, which reads as follows:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod,
as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate
funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this
Code, and shall:
. . .
(4) Regulate activities relative to the use of land,
buildings and structures within the city in order to
promote the general welfare and for said purpose
shall:
. . .
(vii) Regulate the establishment,
operation, and maintenance of any
entertainment or amusement facilities,
including theatrical performances,
circuses, billiard pools, public dancing
schools, public dance halls, sauna baths,
massage parlors, and other places for
entertainment or amusement; regulate
such other events or activities for
amusement or entertainment, particularly
those which tend to disturb the
community or annoy the inhabitants, or
require the suspension or suppression of
the same; or, prohibit certain forms of
amusement or entertainment in order to
protect the social and moral welfare of
the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels,
motels, inns, pension houses, lodging houses, and other similar
establishments, the only power of the City Council to legislate
relative thereto is to regulate them to promote the general welfare.
The Code still withholds from cities the power to suppress and
prohibit altogether the establishment, operation and maintenance of
such establishments. It is well to recall the rulings of the Court in
Kwong Sing v. City of Manila106 that:
25
The word "regulate," as used in subsection (l),
section 2444 of the Administrative Code, means
and includes the power to control, to govern, and
to restrain; but "regulate" should not be construed
as synonymous with "suppress" or "prohibit."
Consequently, under the power to regulate
laundries, the municipal authorities could make
proper police regulations as to the mode in which
the employment or business shall be
exercised.107
And in People v. Esguerra,108 wherein the Court nullified an
ordinance of the Municipality of Tacloban which prohibited the
selling, giving and dispensing of liquor ratiocinating that the
municipality is empowered only to regulate the same and not
prohibit. The Court therein declared that:
(A)s a general rule when a municipal corporation
is specifically given authority or power to regulate
or to license and regulate the liquor traffic, power
to prohibit is impliedly withheld.109
These doctrines still hold contrary to petitioners' assertion110 that
they were modified by the Code vesting upon City Councils
prohibitory powers.
Similarly, the City Council exercises regulatory powers over public
dancing schools, public dance halls, sauna baths, massage parlors,
and other places for entertainment or amusement as found in the
first clause of Section 458 (a) 4 (vii). Its powers to regulate,
suppress and suspend "such other events or activities for amusement
or entertainment, particularly those which tend to disturb the
community or annoy the inhabitants" and to "prohibit certain forms
of amusement or entertainment in order to protect the social and
moral welfare of the community" are stated in the second and third
clauses, respectively of the same Section. The several powers of the
City Council as provided in Section 458 (a) 4 (vii) of the Code, it is
pertinent to emphasize, are separated by semi-colons (;), the use of
which indicates that the clauses in which these powers are set forth
are independent of each other albeit closely related to justify being
put together in a single enumeration or paragraph.111 These
powers, therefore, should not be confused, commingled or
consolidated as to create a conglomerated and unified power of
regulation, suppression and prohibition.112
The Congress unequivocably specified the establishments and
forms of amusement or entertainment subject to regulation among
which are beerhouses, hotels, motels, inns, pension houses, lodging
houses, and other similar establishments (Section 458 (a) 4 (iv)),
public dancing schools, public dance halls, sauna baths, massage
parlors, and other places for entertainment or amusement (Section
458 (a) 4 (vii)). This enumeration therefore cannot be included as
among "other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the
inhabitants" or "certain forms of amusement or entertainment"
which the City Council may suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are
expressly granted to it and those which are necessarily implied or
incidental to the exercise thereof. By reason of its limited powers

and the nature thereof, said powers are to be construed strictissimi
juris and any doubt or ambiguity arising out of the terms used in
granting said powers must be construed against the City
Council.113 Moreover, it is a general rule in statutory construction
that the express mention of one person, thing, or consequence is
tantamount to an express exclusion of all others. Expressio unius est
exclusio alterium. This maxim is based upon the rules of logic and
the natural workings of human mind. It is particularly applicable in
the construction of such statutes as create new rights or remedies,
impose penalties or punishments, or otherwise come under the rule
of strict construction.114
The argument that the City Council is empowered to enact the
Ordinance by virtue of the general welfare clause of the Code and
of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is likewise
without merit. On the first point, the ruling of the Court in People v.
Esguerra,115 is instructive. It held that:
The powers conferred upon a municipal council in
the general welfare clause, or section 2238 of the
Revised Administrative Code, refers to matters
not covered by the other provisions of the same
Code, and therefore it can not be applied to
intoxicating liquors, for the power to regulate the
selling, giving away and dispensing thereof is
granted specifically by section 2242 (g) to
municipal councils. To hold that, under the
general power granted by section 2238, a
municipal council may enact the ordinance in
question, notwithstanding the provision of section
2242 (g), would be to make the latter superfluous
and nugatory, because the power to prohibit,
includes the power to regulate, the selling, giving
away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later
expression of the legislative will must necessarily prevail and
override the earlier law, the Revised Charter of Manila. Legis
posteriores priores contrarias abrogant, or later statute repeals
prior ones which are repugnant thereto. As between two laws on the
same subject matter, which are irreconcilably inconsistent, that
which is passed later prevails, since it is the latest expression of
legislative will.116 If there is an inconsistency or repugnance
between two statutes, both relating to the same subject matter,
which cannot be removed by any fair and reasonable method of
interpretation, it is the latest expression of the legislative will which
must prevail and override the earlier.117
Implied repeals are those which take place when a subsequently
enacted law contains provisions contrary to those of an existing law
but no provisions expressly repealing them. Such repeals have been
divided into two general classes: those which occur where an act is
so inconsistent or irreconcilable with an existing prior act that only
one of the two can remain in force and those which occur when an
act covers the whole subject of an earlier act and is intended to be a
substitute therefor. The validity of such a repeal is sustained on the
ground that the latest expression of the legislative will should
prevail.118
In addition, Section 534(f) of the Code states that "All general and
special laws, acts, city charters, decrees, executive orders,
26
proclamations and administrative regulations, or part or parts
thereof which are inconsistent with any of the provisions of this
Code are hereby repealed or modified accordingly." Thus,
submitting to petitioners' interpretation that the Revised Charter of
Manila empowers the City Council to prohibit motels, that portion
of the Charter stating such must be considered repealed by the Code
as it is at variance with the latter's provisions granting the City
Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under
the general welfare clause authorizing the abatement of nuisances
without judicial proceedings. That tenet applies to a nuisance per se,
or one which affects the immediate safety of persons and property
and may be summarily abated under the undefined law of necessity.
It can not be said that motels are injurious to the rights of property,
health or comfort of the community. It is a legitimate business. If it
be a nuisance per accidens it may be so proven in a hearing
conducted for that purpose. A motel is not per se a nuisance
warranting its summary abatement without judicial intervention.119
Notably, the City Council was conferred powers to prevent and
prohibit certain activities and establishments in another section of
the Code which is reproduced as follows:
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod,
as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate
funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this
Code, and shall:
(1) Approve ordinances and pass resolutions
necessary for an efficient and effective city
government, and in this connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress
and impose appropriate penalties for habitual
drunkenness in public places, vagrancy,
mendicancy, prostitution, establishment and
maintenance of houses of ill repute, gambling
and other prohibited games of chance, fraudulent
devices and ways to obtain money or property,
drug addiction, maintenance of drug dens, drug
pushing, juvenile delinquency, the printing,
distribution or exhibition of obscene or
pornographic materials or publications, and such
other activities inimical to the welfare and morals
of the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council
the power to prohibit the establishments enumerated in Section 1 of
the Ordinance, it would have so declared in uncertain terms by
adding them to the list of the matters it may prohibit under the

above-quoted Section. The Ordinance now vainly attempts to lump
these establishments with houses of ill-repute and expand the City
Council's powers in the second and third clauses of Section 458 (a)
4 (vii) of the Code in an effort to overreach its prohibitory powers.
It is evident that these establishments may only be regulated in their
establishment, operation and maintenance.
It is important to distinguish the punishable activities from the
establishments themselves. That these establishments are
recognized legitimate enterprises can be gleaned from another
Section of the Code. Section 131 under the Title on Local
Government Taxation expressly mentioned proprietors or operators
of massage clinics, sauna, Turkish and Swedish baths, hotels,
motels and lodging houses as among the "contractors" defined in
paragraph (h) thereof. The same Section also defined "amusement"
as a "pleasurable diversion and entertainment," "synonymous to
relaxation, avocation, pastime or fun;" and "amusement places" to
include "theaters, cinemas, concert halls, circuses and other places
of amusement where one seeks admission to entertain oneself by
seeing or viewing the show or performances." Thus, it can be
inferred that the Code considers these establishments as legitimate
enterprises and activities. It is well to recall the maxim reddendo
singula singulis which means that words in different parts of a
statute must be referred to their appropriate connection, giving to
each in its place, its proper force and effect, and, if possible,
rendering none of them useless or superfluous, even if strict
grammatical construction demands otherwise. Likewise, where
words under consideration appear in different sections or are widely
dispersed throughout an act the same principle applies.120
Not only does the Ordinance contravene the Code, it likewise runs
counter to the provisions of P.D. 499. As correctly argued by
MTDC, the statute had already converted the residential Ermita-
Malate area into a commercial area. The decree allowed the
establishment and operation of all kinds of commercial
establishments except warehouse or open storage depot, dump or
yard, motor repair shop, gasoline service station, light industry with
any machinery or funeral establishment. The rule is that for an
ordinance to be valid and to have force and effect, it must not only
be within the powers of the council to enact but the same must not
be in conflict with or repugnant to the general law.121 As
succinctly illustrated in Solicitor General v. Metropolitan Manila
Authority:122
The requirement that the enactment must not
violate existing law explains itself. Local political
subdivisions are able to legislate only by virtue of
a valid delegation of legislative power from the
national legislature (except only that the power to
create their own sources of revenue and to levy
taxes is conferred by the Constitution itself). They
are mere agents vested with what is called the
power of subordinate legislation. As delegates of
the Congress, the local government units cannot
contravene but must obey at all times the will of
their principal. In the case before us, the
enactment in question, which are merely local in
origin cannot prevail against the decree, which
has the force and effect of a statute.123
27
Petitioners contend that the Ordinance enjoys the presumption of
validity. While this may be the rule, it has already been held that
although the presumption is always in favor of the validity or
reasonableness of the ordinance, such presumption must
nevertheless be set aside when the invalidity or unreasonableness
appears on the face of the ordinance itself or is established by
proper evidence. The exercise of police power by the local
government is valid unless it contravenes the fundamental law of
the land, or an act of the legislature, or unless it is against public
policy or is unreasonable, oppressive, partial, discriminating or in
derogation of a common right.124
Conclusion
All considered, the Ordinance invades fundamental personal and
property rights and impairs personal privileges. It is constitutionally
infirm. The Ordinance contravenes statutes; it is discriminatory and
unreasonable in its operation; it is not sufficiently detailed and
explicit that abuses may attend the enforcement of its sanctions.
And not to be forgotten, the City Council under the Code had no
power to enact the Ordinance and is therefore ultra vires, null and
void.
Concededly, the challenged Ordinance was enacted with the best of
motives and shares the concern of the public for the cleansing of the
Ermita-Malate area of its social sins. Police power legislation of
such character deserves the full endorsement of the judiciary we
reiterate our support for it. But inspite of its virtuous aims, the
enactment of the Ordinance has no statutory or constitutional
authority to stand on. Local legislative bodies, in this case, the City
Council, cannot prohibit the operation of the enumerated
establishments under Section 1 thereof or order their transfer or
conversion without infringing the constitutional guarantees of due
process and equal protection of laws not even under the guise of
police power.
WHEREFORE, the Petition is hereby DENIED and the decision
of the Regional Trial Court declaring the Ordinance void is
AFFIRMED. Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna,
Chico-Nazario and Garcia, JJ., concur
Panganiban, J., in the result.
Ynares- Santiago, J., concur in the result only.
Footnotes
4 In the case of Cotton Club Corporation, etc. v.
Hon. Alfredo S. Lim, etc, et al. before RTC,
Branch 55 of Manila, docketed as Civil Case No.
93-66551, Judge Hermogenes R. Liwag declared
the Ordinance void and unconstitutional. The
defendants elevated the case to the Court of
Appeals which denied their petition on procedural
grounds in its Decision dated 21 May 2003. It
appears that defendants Hon. Alfredo S. Lim and
the City Council of Manila did not elevate the
 28

case before the Court. Entry of Judgment of the
CA Decision was made on 22 April 2003.
Section 458. Powers, Duties, Functions and
Compensation. (a) The sangguniang panlungsod,
as the legislative body of the city, shall enact
ordinances, approve resolutions and appropriate
funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this
Code, and shall:
. . .
(4) Regulate activities relative to the use of
land, buildings and structures within the city in
order to promote the general welfare and for said
purpose shall:
. . ..
Order No. 1, dated September 22, 1972, as
amended, do hereby order and decree the
classification as a Commercial Zone of that
portion of the Ermita-Malate area bounded by
Teodoro M. Kalaw, Sr. Street in the north; Taft
Avenue in the east; Vito Cruz Street in the south
and Roxas Boulevard in the west. PROVIDED,
HOWEVER, That no permit shall be granted for
the establishment of any new warehouse or open
storage depot, dump or yard, motor repair shop,
gasoline service station, light industry with any
machinery or funeral establishment in these areas,
and PROVIDED, FURTHER, That for purposes
of realty tax assessment on properties situated
therein, lands and buildings used exclusively for
residential purposes by the owners themselves
shall remain assessed as residential properties.
All laws, ordinances, orders, rules and
regulations which are inconsistent with this
Decree are hereby repealed or modified
accordingly.

(iv) Regulate the establishment, operation and This Decree shall take effect immediately.
maintenance of cafes, restaurants, beerhouses,
hotels, motels, inns, pension houses, lodging
Done in the City of Manila this 28th day of
houses, and other similar establishments,
June in the year of Our Lord, nineteen hundred
including tourist guides and transports; . . .
and seventy-four.
13 Presidential Decree No. 499; Dated 28 June
1974; Declaring Portions of the Ermita-Malate
Area as Commercial Zones with Certain
Restrictions. It reads in full:

WHEREAS, the government is committed to

the promotion and development of tourism in the
country, particularly in the City of Manila which
is the hub of commercial and cultural activities in
Manila Metropolitan Area;

WHEREAS, certain portions of the districts of

Ermita and Malate known as the Tourist Belt are
still classified as Class "A" Residential Zones and
Class "B" Residential Zones where hotels and
other business establishments such as curio stores,
souvenir shops, handicraft display centers and the
like are not allowed under the existing zoning
plan in the City of Manila;

WHEREAS, the presence of such

establishments in the area would not only serve as
an attraction for tourists but are dollar earning
enterprises as well, which tourist areas all over the
world cannot do without;

NOW, THEREFORE, I, FERDINAND E.

MARCOS, President of the Philippines, by virtue
of the powers vested in me under the Constitution
as Commander-in-Chief of all the Armed Forces
of the Philippines and pursuant to Proclamation
No. 1081, dated September 21, 1972, and General

G.R. No. 156052 March 7, 2007
SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE
T. CABIGAO, and BONIFACIO S. TUMBOKON, Petitioners,
vs.
HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the
City of Manila, Respondent.
DECISION
CORONA, J.:
In this original petition for mandamus,1 petitioners Social Justice
Society (SJS), Vladimir Alarique T. Cabigao and Bonifacio S.
Tumbokon seek to compel respondent Hon. Jose L. Atienza, Jr.,
mayor of the City of Manila, to enforce Ordinance No. 8027.
The antecedents are as follows.
On November 20, 2001, the Sangguniang Panlungsod of Manila
enacted Ordinance No. 8027.2 Respondent mayor approved the
ordinance on November 28, 2001.3 It became effective on
December 28, 2001, after its publication.4
Ordinance No. 8027 was enacted pursuant to the police power
delegated to local government units, a principle described as the
power inherent in a government to enact laws, within constitutional
limits, to promote the order, safety, health, morals and general
welfare of the society.5 This is evident from Sections 1 and 3
thereof which state:
SECTION 1. For the purpose of promoting sound urban planning
and ensuring health, public safety, and general welfare of the
residents of Pandacan and Sta. Ana as well as its adjoining areas,
the land use of [those] portions of land bounded by the Pasig River
in the north, PNR Railroad Track in the east, Beata St. in the south,
Palumpong St. in the southwest, and Estero de Pancacan in the
west[,] PNR Railroad in the northwest area, Estero de Pandacan in
the [n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon
in the southwest. The area of Punta, Sta. Ana bounded by the Pasig
River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are
hereby reclassified from Industrial II to Commercial I.xxx xxx xxx
SEC. 3. Owners or operators of industries and other businesses, the
operation of which are no longer permitted under Section 1 hereof,
are hereby given a period of six (6) months from the date of
effectivity of this Ordinance within which to cease and desist from
the operation of businesses which are hereby in consequence,
disallowed.
Ordinance No. 8027 reclassified the area described therein from
industrial to commercial and directed the owners and operators of
businesses disallowed under Section 1 to cease and desist from
operating their businesses within six months from the date of
effectivity of the ordinance. Among the businesses situated in the
area are the so-called "Pandacan Terminals" of the oil companies
Caltex (Philippines), Inc., Petron Corporation and Pilipinas Shell
Petroleum Corporation.
29
However, on June 26, 2002, the City of Manila and the Department
of Energy (DOE) entered into a memorandum of understanding
(MOU)6 with the oil companies in which they agreed that "the
scaling down of the Pandacan Terminals [was] the most viable and
practicable option." Under the MOU, the oil companies agreed to
perform the following:
Section 1. - Consistent with the objectives stated above, the OIL
COMPANIES shall, upon signing of this MOU, undertake a
program to scale down the Pandacan Terminals which shall include,
among others, the immediate removal/decommissioning process of
TWENTY EIGHT (28) tanks starting with the LPG spheres and the
commencing of works for the creation of safety buffer and green
zones surrounding the Pandacan Terminals. xxx
Section 2. – Consistent with the scale-down program mentioned
above, the OIL COMPANIES shall establish joint operations and
management, including the operation of common, integrated and/or
shared facilities, consistent with international and domestic
technical, safety, environmental and economic considerations and
standards. Consequently, the joint operations of the OIL
COMPANIES in the Pandacan Terminals shall be limited to the
common and integrated areas/facilities. A separate agreement
covering the commercial and operational terms and conditions of
the joint operations, shall be entered into by the OIL COMPANIES.
Section 3. - The development and maintenance of the safety and
green buffer zones mentioned therein, which shall be taken from the
properties of the OIL COMPANIES and not from the surrounding
communities, shall be the sole responsibility of the OIL
COMPANIES.
The City of Manila and the DOE, on the other hand, committed to
do the following:
Section 1. - The City Mayor shall endorse to the City Council this
MOU for its appropriate action with the view of implementing the
spirit and intent thereof.
Section 2. - The City Mayor and the DOE shall, consistent with the
spirit and intent of this MOU, enable the OIL COMPANIES to
continuously operate in compliance with legal requirements, within
the limited area resulting from the joint operations and the scale
down program.
Section 3. - The DOE and the City Mayor shall monitor the OIL
COMPANIES’ compliance with the provisions of this MOU.
Section 4. - The CITY OF MANILA and the national government
shall protect the safety buffer and green zones and shall exert all
efforts at preventing future occupation or encroachment into these
areas by illegal settlers and other unauthorized parties.
The Sangguniang Panlungsod ratified the MOU in Resolution No.
97.7 In the same resolution, the Sanggunian declared that the MOU
was effective only for a period of six months starting July 25,
2002.8 Thereafter, on January 30, 2003, the Sanggunian adopted
Resolution No. 139 extending the validity of Resolution No. 97 to
April 30, 2003 and authorizing Mayor Atienza to issue special

business permits to the oil companies. Resolution No. 13, s. 2003
also called for a reassessment of the ordinance.10
Meanwhile, petitioners filed this original action for mandamus on
December 4, 2002 praying that Mayor Atienza be compelled to
enforce Ordinance No. 8027 and order the immediate removal of
the terminals of the oil companies.11
The issues raised by petitioners are as follows:
1. whether respondent has the mandatory legal
duty to enforce Ordinance No. 8027 and order the
removal of the Pandacan Terminals, and
2. whether the June 26, 2002 MOU and the
resolutions ratifying it can amend or repeal
Ordinance No. 8027.12
Petitioners contend that respondent has the mandatory legal duty,
under Section 455 (b) (2) of the Local Government Code (RA
7160),13 to enforce Ordinance No. 8027 and order the removal of
the Pandacan Terminals of the oil companies. Instead, he has
allowed them to stay.
Respondent’s defense is that Ordinance No. 8027 has been
superseded by the MOU and the resolutions.14 However, he also
confusingly argues that the ordinance and MOU are not inconsistent
with each other and that the latter has not amended the former. He
insists that the ordinance remains valid and in full force and effect
and that the MOU did not in any way prevent him from enforcing
and implementing it. He maintains that the MOU should be
considered as a mere guideline for its full implementation. 15
Under Rule 65, Section 316 of the Rules of Court, a petition for
mandamus may be filed when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office,
trust or station. Mandamus is an extraordinary writ that is employed
to compel the performance, when refused, of a ministerial duty that
is already imposed on the respondent and there is no other plain,
speedy and adequate remedy in the ordinary course of law. The
petitioner should have a well-defined, clear and certain legal right to
the performance of the act and it must be the clear and imperative
duty of respondent to do the act required to be done. 17
Mandamus will not issue to enforce a right, or to compel
compliance with a duty, which is questionable or over which a
substantial doubt exists. The principal function of the writ of
mandamus is to command and to expedite, not to inquire and to
adjudicate; thus, it is neither the office nor the aim of the writ to
secure a legal right but to implement that which is already
established. Unless the right to the relief sought is unclouded,
mandamus will not issue.18
To support the assertion that petitioners have a clear legal right to
the enforcement of the ordinance, petitioner SJS states that it is a
political party registered with the Commission on Elections and has
its offices in Manila. It claims to have many members who are
residents of Manila. The other petitioners, Cabigao and Tumbokon,
are allegedly residents of Manila.
30
We need not belabor this point. We have ruled in previous cases
that when a mandamus proceeding concerns a public right and its
object is to compel a public duty, the people who are interested in
the execution of the laws are regarded as the real parties in interest
and they need not show any specific interest.19 Besides, as residents
of Manila, petitioners have a direct interest in the enforcement of
the city’s ordinances. Respondent never questioned the right of
petitioners to institute this proceeding.
On the other hand, the Local Government Code imposes upon
respondent the duty, as city mayor, to "enforce all laws and
ordinances relative to the governance of the city.">20 One of these is
Ordinance No. 8027. As the chief executive of the city, he has the
duty to enforce Ordinance No. 8027 as long as it has not been
repealed by the Sanggunian or annulled by the courts.21 He has no
other choice. It is his ministerial duty to do so. In Dimaporo v.
Mitra, Jr.,22 we stated the reason for this:
These officers cannot refuse to perform their duty on the ground of
an alleged invalidity of the statute imposing the duty. The reason for
this is obvious. It might seriously hinder the transaction of public
business if these officers were to be permitted in all cases to
question the constitutionality of statutes and ordinances imposing
duties upon them and which have not judicially been declared
unconstitutional. Officers of the government from the highest to the
lowest are creatures of the law and are bound to obey it. 23
The question now is whether the MOU entered into by respondent
with the oil companies and the subsequent resolutions passed by the
Sanggunian have made the respondent’s duty to enforce Ordinance
No. 8027 doubtful, unclear or uncertain. This is also connected to
the second issue raised by petitioners, that is, whether the MOU and
Resolution Nos. 97, s. 2002 and 13, s. 2003 of the Sanggunian can
amend or repeal Ordinance No. 8027.
We need not resolve this issue. Assuming that the terms of the
MOU were inconsistent with Ordinance No. 8027, the resolutions
which ratified it and made it binding on the City of Manila
expressly gave it full force and effect only until April 30, 2003.
Thus, at present, there is nothing that legally hinders respondent
from enforcing Ordinance No. 8027.24
Ordinance No. 8027 was enacted right after the Philippines, along
with the rest of the world, witnessed the horror of the September 11,
2001 attack on the Twin Towers of the World Trade Center in New
York City. The objective of the ordinance is to protect the residents
of Manila from the catastrophic devastation that will surely occur in
case of a terrorist attack25 on the Pandacan Terminals. No reason
exists why such a protective measure should be delayed.
WHEREFORE, the petition is hereby GRANTED. Respondent
Hon. Jose L. Atienza, Jr., as mayor of the City of Manila, is directed
to immediately enforce Ordinance No. 8027.
SO ORDERED.
RENATO C. CORONA
Associate Justice
WE CONCUR:
 31

Republic of the Philippines SECTION 1. Executive Order No. 626 is

SUPREME COURT hereby amended such that henceforth, no
Manila carabao regardless of age, sex, physical
condition or purpose and no carabeef
EN BANC shall be transported from one province to
another. The carabao or carabeef
transported in violation of this Executive
G.R. No. 74457 March 20, 1987
Order as amended shall be subject to
confiscation and forfeiture by the
RESTITUTO YNOT, petitioner, government, to be distributed to
vs. charitable institutions and other similar
INTERMEDIATE APPELLATE COURT, THE STATION institutions as the Chairman of the
COMMANDER, INTEGRATED NATIONAL POLICE, National Meat Inspection Commission
BAROTAC NUEVO, ILOILO and THE REGIONAL may ay see fit, in the case of carabeef,
DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION and to deserving farmers through
IV, ILOILO CITY, respondents. dispersal as the Director of Animal
Industry may see fit, in the case of
Ramon A. Gonzales for petitioner. carabaos.

SECTION 2. This Executive Order shall

take effect immediately.
CRUZ, J.:
Done in the City of Manila, this 25th day
The essence of due process is distilled in the immortal cry of of October, in the year of Our Lord,
Themistocles to Alcibiades "Strike — but hear me first!" It is this nineteen hundred and eighty.
cry that the petitioner in effect repeats here as he challenges the
constitutionality of Executive Order No. 626-A.

The said executive order reads in full as follows:

WHEREAS, the President has given

orders prohibiting the interprovincial
movement of carabaos and the
slaughtering of carabaos not complying
with the requirements of Executive
Order No. 626 particularly with respect
to age;

WHEREAS, it has been observed that

despite such orders the violators still
manage to circumvent the prohibition
against inter-provincial movement of
carabaos by transporting carabeef
instead; and

WHEREAS, in order to achieve the

purposes and objectives of Executive
Order No. 626 and the prohibition
against interprovincial movement of
carabaos, it is necessary to strengthen the
said Executive Order and provide for the
disposition of the carabaos and carabeef
subject of the violation;

NOW, THEREFORE, I, FERDINAND

E. MARCOS, President of the
Philippines, by virtue of the powers
vested in me by the Constitution, do
hereby promulgate the following:

The petitioner had transported six carabaos in a pump boat from
Masbate to Iloilo on January 13, 1984, when they were confiscated
by the police station commander of Barotac Nuevo, Iloilo, for
violation of the above measure. 1 The petitioner sued for recovery,
and the Regional Trial Court of Iloilo City issued a writ of replevin
upon his filing of a supersedeas bond of P12,000.00. After
considering the merits of the case, the court sustained the
confiscation of the carabaos and, since they could no longer be
produced, ordered the confiscation of the bond. The court also
declined to rule on the constitutionality of the executive order, as
raise by the petitioner, for lack of authority and also for its
presumed validity. 2
The petitioner appealed the decision to the Intermediate Appellate
Court,* 3 which upheld the trial court, ** and he has now come
before us in this petition for review on certiorari.
The thrust of his petition is that the executive order is
unconstitutional insofar as it authorizes outright confiscation of the
carabao or carabeef being transported across provincial boundaries.
His claim is that the penalty is invalid because it is imposed without
according the owner a right to be heard before a competent and
impartial court as guaranteed by due process. He complains that the
measure should not have been presumed, and so sustained, as
constitutional. There is also a challenge to the improper exercise of
the legislative power by the former President under Amendment
No. 6 of the 1973 Constitution. 4
While also involving the same executive order, the case of Pesigan
v. Angeles 5 is not applicable here. The question raised there was
the necessity of the previous publication of the measure in the
Official Gazette before it could be considered enforceable. We
imposed the requirement then on the basis of due process of law. In
doing so, however, this Court did not, as contended by the Solicitor
General, impliedly affirm the constitutionality of Executive Order
No. 626-A. That is an entirely different matter.
32
This Court has declared R that while lower courts should observe a
becoming modesty in eexamining constitutional questions, they are
nonetheless not prevented
p from resolving the same whenever
warranted, subject only u to review by the highest tribunal. 6 We have
jurisdiction under the bConstitution to "review, revise, reverse,
modify or affirm on appeal
l or certiorari, as the law or rules of court
may provide," final judgments
i and orders of lower courts in, among
others, all cases involving
c the constitutionality of certain measures.
7 This simply means thato the resolution of such cases may be made
in the first instance byhthese lower courts.
e
P laws are presumed to be constitutional, that
And while it is true that
presumption is not byhany means conclusive and in fact may be
i be a clear showing of their invalidity, and
rebutted. Indeed, if there
of the need to declare lthem so, then "will be the time to make the
i
hammer fall, and heavily," 8 to recall Justice Laurel's trenchant
p
warning. Stated otherwise, courts should not follow the path of least
p
resistance by simply presuming the constitutionality of a law when
it is questioned. On thei contrary, they should probe the issue more
n
deeply, to relieve the abscess, paraphrasing another distinguished
e wound or excise the affliction.
jurist, 9 and so heal the
s
Judicial power authorizes this; and when the exercise is demanded,
there should be no shirking of the task for fear of retaliation, or loss
of favor, or popular censure, or any other similar inhibition
unworthy of the bench, especially this Court.
The challenged measure is denominated an executive order but it is
really presidential decree, promulgating a new rule instead of
merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were
faithfully executed but in the exercise of his legislative authority
under Amendment No. 6. It was provided thereunder that whenever
in his judgment there existed a grave emergency or a threat or
imminence thereof or whenever the legislature failed or was unable
to act adequately on any matter that in his judgment required
immediate action, he could, in order to meet the exigency, issue
decrees, orders or letters of instruction that were to have the force
and effect of law. As there is no showing of any exigency to justify
the exercise of that extraordinary power then, the petitioner has
reason, indeed, to question the validity of the executive order.
Nevertheless, since the determination of the grounds was supposed
to have been made by the President "in his judgment, " a phrase that
will lead to protracted discussion not really necessary at this time,
we reserve resolution of this matter until a more appropriate
occasion. For the nonce, we confine ourselves to the more
fundamental question of due process.
It is part of the art of constitution-making that the provisions of the
charter be cast in precise and unmistakable language to avoid
controversies that might arise on their correct interpretation. That is
the Ideal. In the case of the due process clause, however, this rule
was deliberately not followed and the wording was purposely kept
ambiguous. In fact, a proposal to delineate it more clearly was
submitted in the Constitutional Convention of 1934, but it was
rejected by Delegate Jose P. Laurel, Chairman of the Committee on
the Bill of Rights, who forcefully argued against it. He was
sustained by the body. 10
The due process clause was kept intentionally vague so it would
remain also conveniently resilient. This was felt necessary because

due process is not, like some provisions of the fundamental law, an
"iron rule" laying down an implacable and immutable command for
all seasons and all persons. Flexibility must be the best virtue of the
guaranty. The very elasticity of the due process clause was meant to
make it adapt easily to every situation, enlarging or constricting its
protection as the changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own
specific description of due process lest they confine themselves in a
legal straitjacket that will deprive them of the elbow room they may
need to vary the meaning of the clause whenever indicated. Instead,
they have preferred to leave the import of the protection open-
ended, as it were, to be "gradually ascertained by the process of
inclusion and exclusion in the course of the decision of cases as
they arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme
Court, for example, would go no farther than to define due process
— and in so doing sums it all up — as nothing more and nothing
less than "the embodiment of the sporting Idea of fair play." 12
When the barons of England extracted from their sovereign liege
the reluctant promise that that Crown would thenceforth not proceed
against the life liberty or property of any of its subjects except by
the lawful judgment of his peers or the law of the land, they thereby
won for themselves and their progeny that splendid guaranty of
fairness that is now the hallmark of the free society. The solemn
vow that King John made at Runnymede in 1215 has since then
resounded through the ages, as a ringing reminder to all rulers,
benevolent or base, that every person, when confronted by the stern
visage of the law, is entitled to have his say in a fair and open
hearing of his cause.
The closed mind has no place in the open society. It is part of the
sporting Idea of fair play to hear "the other side" before an opinion
is formed or a decision is made by those who sit in judgment.
Obviously, one side is only one-half of the question; the other half
must also be considered if an impartial verdict is to be reached
based on an informed appreciation of the issues in contention. It is
indispensable that the two sides complement each other, as unto the
bow the arrow, in leading to the correct ruling after examination of
the problem not from one or the other perspective only but in its
totality. A judgment based on less that this full appraisal, on the
pretext that a hearing is unnecessary or useless, is tainted with the
vice of bias or intolerance or ignorance, or worst of all, in repressive
regimes, the insolence of power.
The minimum requirements of due process are notice and hearing
13 which, generally speaking, may not be dispensed with because
they are intended as a safeguard against official arbitrariness. It is a
gratifying commentary on our judicial system that the jurisprudence
of this country is rich with applications of this guaranty as proof of
our fealty to the rule of law and the ancient rudiments of fair play.
We have consistently declared that every person, faced by the
awesome power of the State, is entitled to "the law of the land,"
which Daniel Webster described almost two hundred years ago in
the famous Dartmouth College Case, 14 as "the law which hears
before it condemns, which proceeds upon inquiry and renders
judgment only after trial." It has to be so if the rights of every
person are to be secured beyond the reach of officials who, out of
mistaken zeal or plain arrogance, would degrade the due process
clause into a worn and empty catchword.
33
This is not to say that notice and hearing are imperative in every
case for, to be sure, there are a number of admitted exceptions. The
conclusive presumption, for example, bars the admission of
contrary evidence as long as such presumption is based on human
experience or there is a rational connection between the fact proved
and the fact ultimately presumed therefrom. 15 There are instances
when the need for expeditions action will justify omission of these
requisites, as in the summary abatement of a nuisance per se, like a
mad dog on the loose, which may be killed on sight because of the
immediate danger it poses to the safety and lives of the people.
Pornographic materials, contaminated meat and narcotic drugs are
inherently pernicious and may be summarily destroyed. The
passport of a person sought for a criminal offense may be cancelled
without hearing, to compel his return to the country he has fled. 16
Filthy restaurants may be summarily padlocked in the interest of the
public health and bawdy houses to protect the public morals. 17 In
such instances, previous judicial hearing may be omitted without
violation of due process in view of the nature of the property
involved or the urgency of the need to protect the general welfare
from a clear and present danger.
The protection of the general welfare is the particular function of
the police power which both restraints and is restrained by due
process. The police power is simply defined as the power inherent
in the State to regulate liberty and property for the promotion of the
general welfare. 18 By reason of its function, it extends to all the
great public needs and is described as the most pervasive, the least
limitable and the most demanding of the three inherent powers of
the State, far outpacing taxation and eminent domain. The
individual, as a member of society, is hemmed in by the police
power, which affects him even before he is born and follows him
still after he is dead — from the womb to beyond the tomb — in
practically everything he does or owns. Its reach is virtually
limitless. It is a ubiquitous and often unwelcome intrusion. Even so,
as long as the activity or the property has some relevance to the
public welfare, its regulation under the police power is not only
proper but necessary. And the justification is found in the venerable
Latin maxims, Salus populi est suprema lex and Sic utere tuo ut
alienum non laedas, which call for the subordination of individual
interests to the benefit of the greater number.
It is this power that is now invoked by the government to justify
Executive Order No. 626-A, amending the basic rule in Executive
Order No. 626, prohibiting the slaughter of carabaos except under
certain conditions. The original measure was issued for the reason,
as expressed in one of its Whereases, that "present conditions
demand that the carabaos and the buffaloes be conserved for the
benefit of the small farmers who rely on them for energy needs."
We affirm at the outset the need for such a measure. In the face of
the worsening energy crisis and the increased dependence of our
farms on these traditional beasts of burden, the government would
have been remiss, indeed, if it had not taken steps to protect and
preserve them.
A similar prohibition was challenged in United States v. Toribio, 19
where a law regulating the registration, branding and slaughter of
large cattle was claimed to be a deprivation of property without due
process of law. The defendant had been convicted thereunder for
having slaughtered his own carabao without the required permit,
and he appealed to the Supreme Court. The conviction was
affirmed. The law was sustained as a valid police measure to

prevent the indiscriminate killing of carabaos, which were then
badly needed by farmers. An epidemic had stricken many of these
animals and the reduction of their number had resulted in an acute
decline in agricultural output, which in turn had caused an incipient
famine. Furthermore, because of the scarcity of the animals and the
consequent increase in their price, cattle-rustling had spread
alarmingly, necessitating more effective measures for the
registration and branding of these animals. The Court held that the
questioned statute was a valid exercise of the police power and
declared in part as follows:
To justify the State in thus interposing its
authority in behalf of the public, it must
appear, first, that the interests of the
public generally, as distinguished from
those of a particular class, require such
interference; and second, that the means
are reasonably necessary for the
accomplishment of the purpose, and not
unduly oppressive upon individuals. ...
From what has been said, we think it is
clear that the enactment of the provisions
of the statute under consideration was
required by "the interests of the public
generally, as distinguished from those of
a particular class" and that the
prohibition of the slaughter of carabaos
for human consumption, so long as these
animals are fit for agricultural work or
draft purposes was a "reasonably
necessary" limitation on private
ownership, to protect the community
from the loss of the services of such
animals by their slaughter by
improvident owners, tempted either by
greed of momentary gain, or by a desire
to enjoy the luxury of animal food, even
when by so doing the productive power
of the community may be measurably
and dangerously affected.
In the light of the tests mentioned above, we hold with the Toribio
Case that the carabao, as the poor man's tractor, so to speak, has a
direct relevance to the public welfare and so is a lawful subject of
Executive Order No. 626. The method chosen in the basic measure
is also reasonably necessary for the purpose sought to be achieved
and not unduly oppressive upon individuals, again following the
above-cited doctrine. There is no doubt that by banning the
slaughter of these animals except where they are at least seven years
old if male and eleven years old if female upon issuance of the
necessary permit, the executive order will be conserving those still
fit for farm work or breeding and preventing their improvident
depletion.
But while conceding that the amendatory measure has the same
lawful subject as the original executive order, we cannot say with
equal certainty that it complies with the second requirement, viz.,
that there be a lawful method. We note that to strengthen the
original measure, Executive Order No. 626-A imposes an absolute
ban not on the slaughter of the carabaos but on their movement,
34
providing that "no carabao regardless of age, sex, physical condition
or purpose (sic) and no carabeef shall be transported from one
province to another." The object of the prohibition escapes us. The
reasonable connection between the means employed and the
purpose sought to be achieved by the questioned measure is missing
We do not see how the prohibition of the inter-provincial transport
of carabaos can prevent their indiscriminate slaughter, considering
that they can be killed anywhere, with no less difficulty in one
province than in another. Obviously, retaining the carabaos in one
province will not prevent their slaughter there, any more than
moving them to another province will make it easier to kill them
there. As for the carabeef, the prohibition is made to apply to it as
otherwise, so says executive order, it could be easily circumvented
by simply killing the animal. Perhaps so. However, if the movement
of the live animals for the purpose of preventing their slaughter
cannot be prohibited, it should follow that there is no reason either
to prohibit their transfer as, not to be flippant dead meat.
Even if a reasonable relation between the means and the end were to
be assumed, we would still have to reckon with the sanction that the
measure applies for violation of the prohibition. The penalty is
outright confiscation of the carabao or carabeef being transported,
to be meted out by the executive authorities, usually the police only.
In the Toribio Case, the statute was sustained because the penalty
prescribed was fine and imprisonment, to be imposed by the court
after trial and conviction of the accused. Under the challenged
measure, significantly, no such trial is prescribed, and the property
being transported is immediately impounded by the police and
declared, by the measure itself, as forfeited to the government.
In the instant case, the carabaos were arbitrarily confiscated by the
police station commander, were returned to the petitioner only after
he had filed a complaint for recovery and given a supersedeas bond
of P12,000.00, which was ordered confiscated upon his failure to
produce the carabaos when ordered by the trial court. The executive
order defined the prohibition, convicted the petitioner and
immediately imposed punishment, which was carried out forthright.
The measure struck at once and pounced upon the petitioner without
giving him a chance to be heard, thus denying him the centuries-old
guaranty of elementary fair play.
It has already been remarked that there are occasions when notice
and hearing may be validly dispensed with notwithstanding the
usual requirement for these minimum guarantees of due process. It
is also conceded that summary action may be validly taken in
administrative proceedings as procedural due process is not
necessarily judicial only. 20 In the exceptional cases accepted,
however. there is a justification for the omission of the right to a
previous hearing, to wit, the immediacy of the problem sought to be
corrected and the urgency of the need to correct it.
In the case before us, there was no such pressure of time or action
calling for the petitioner's peremptory treatment. The properties
involved were not even inimical per se as to require their instant
destruction. There certainly was no reason why the offense
prohibited by the executive order should not have been proved first
in a court of justice, with the accused being accorded all the rights
safeguarded to him under the Constitution. Considering that, as we
held in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal
in nature, the violation thereof should have been pronounced not by
 35

the police only but by a court of justice, which alone would have
had the authority to impose the prescribed penalty, and only after
trial and conviction of the accused.
We also mark, on top of all this, the questionable manner of the
disposition of the confiscated property as prescribed in the
questioned executive order. It is there authorized that the seized
property shall "be distributed to charitable institutions and other
similar institutions as the Chairman of the National Meat Inspection
Commission may see fit, in the case of carabeef, and to deserving
farmers through dispersal as the Director of Animal Industry may
see fit, in the case of carabaos." (Emphasis supplied.) The phrase
"may see fit" is an extremely generous and dangerous condition, if
condition it is. It is laden with perilous opportunities for partiality
and abuse, and even corruption. One searches in vain for the usual
standard and the reasonable guidelines, or better still, the limitations
that the said officers must observe when they make their
distribution. There is none. Their options are apparently boundless.
Who shall be the fortunate beneficiaries of their generosity and by
what criteria shall they be chosen? Only the officers named can
supply the answer, they and they alone may choose the grantee as
they see fit, and in their own exclusive discretion. Definitely, there
is here a "roving commission," a wide and sweeping authority that
is not "canalized within banks that keep it from overflowing," in
short, a clearly profligate and therefore invalid delegation of
legislative powers.
been perpetrated, allowed without protest, and soon forgotten in the
limbo of relinquished rights.
The strength of democracy lies not in the rights it guarantees but in
the courage of the people to invoke them whenever they are ignored
or violated. Rights are but weapons on the wall if, like expensive
tapestry, all they do is embellish and impress. Rights, as weapons,
must be a promise of protection. They become truly meaningful,
and fulfill the role assigned to them in the free society, if they are
kept bright and sharp with use by those who are not afraid to assert
them.
WHEREFORE, Executive Order No. 626-A is hereby declared
unconstitutional. Except as affirmed above, the decision of the
Court of Appeals is reversed. The supersedeas bond is cancelled
and the amount thereof is ordered restored to the petitioner. No
costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras,
Gancayco, Padilla Bidin Sarmiento and Cortes, JJ., concur.
Melencio-Herrera and Feliciano, JJ., are on leave.

To sum up then, we find that the challenged measure is an invalid

exercise of the police power because the method employed to
conserve the carabaos is not reasonably necessary to the purpose of
the law and, worse, is unduly oppressive. Due process is violated
because the owner of the property confiscated is denied the right to
be heard in his defense and is immediately condemned and
punished. The conferment on the administrative authorities of the
power to adjudge the guilt of the supposed offender is a clear
encroachment on judicial functions and militates against the
doctrine of separation of powers. There is, finally, also an invalid
delegation of legislative powers to the officers mentioned therein
who are granted unlimited discretion in the distribution of the
properties arbitrarily taken. For these reasons, we hereby declare
Executive Order No. 626-A unconstitutional.

We agree with the respondent court, however, that the police station
commander who confiscated the petitioner's carabaos is not liable in
damages for enforcing the executive order in accordance with its
mandate. The law was at that time presumptively valid, and it was
his obligation, as a member of the police, to enforce it. It would
have been impertinent of him, being a mere subordinate of the
President, to declare the executive order unconstitutional and, on his
own responsibility alone, refuse to execute it. Even the trial court, in
fact, and the Court of Appeals itself did not feel they had the
competence, for all their superior authority, to question the order we
now annul.

The Court notes that if the petitioner had not seen fit to assert and
protect his rights as he saw them, this case would never have
reached us and the taking of his property under the challenged
measure would have become a fait accompli despite its invalidity.
We commend him for his spirit. Without the present challenge, the
matter would have ended in that pump boat in Masbate and another
violation of the Constitution, for all its obviousness, would have
 36

EN BANC Bay Freeport (SBF or Freeport), of used motor vehicles, subject to a

G.R. No. 164171 February 20, 2006
HON. EXECUTIVE SECRETARY, HON. SECRETARY OF
THE DEPARTMENT OF TRANSPORTATION AND
COMMUNICATIONS (DOTC), COMMISSIONER OF
CUSTOMS, ASSISTANT SECRETARY, LAND
TRANSPORTATION OFFICE (LTO), COLLECTOR OF
CUSTOMS, SUBIC BAY FREE PORT ZONE, AND CHIEF
OF LTO, SUBIC BAY FREE PORT ZONE, Petitioners,
vs.
SOUTHWING HEAVY INDUSTRIES, INC., represented by its
President JOSE T. DIZON, UNITED AUCTIONEERS, INC.,
represented by its President DOMINIC SYTIN, and
MICROVAN, INC., represented by its President MARIANO C.
SONON, Respondents.
x---------------x
G.R. No. 164172 February 20, 2006
few exceptions.
The undisputed facts show that on December 12, 2002, President
Gloria Macapagal-Arroyo, through Executive Secretary Alberto G.
Romulo, issued EO 156, entitled "Providing for a comprehensive
industrial policy and directions for the motor vehicle development
program and its implementing guidelines." The challenged
provision states:
3.1 The importation into the country, inclusive
of the Freeport, of all types of used motor
vehicles is prohibited, except for the following:
3.1.1 A vehicle that is owned and for the
personal use of a returning resident or
immigrant and covered by an authority to
import issued under the No-dollar
Importation Program. Such vehicles
cannot be resold for at least three (3)
years;

HON. EXECUTIVE SECRETARY, SECRETARY OF THE 3.1.2 A vehicle for the use of an official
DEPARTMENT OF TRANSPORTATION AND of the Diplomatic Corps and authorized
COMMUNICATION (DOTC), COMMISSIONER OF to be imported by the Department of
CUSTOMS, ASSISTANT SECRETARY, LAND Foreign Affairs;
TRANSPORTATION OFFICE (LTO), COLLECTOR OF
CUSTOMS, SUBIC BAY FREE PORT ZONE AND CHIEF OF 3.1.3 Trucks excluding pickup trucks;
LTO, SUBIC BAY FREE PORT ZONE, Petitioners,
vs. 1. with GVW of 2.5-6.0 tons
SUBIC INTEGRATED MACRO VENTURES CORP., covered by an authority to
represented by its President YOLANDA AMBAR, Respondent. import issued by the DTI.

x---------------x 2. With GVW above 6.0 tons.

G.R. No. 168741 February 20, 2006 3.1.4 Buses:

HON. EXECUTIVE SECRETARY, HON. SECRETARY OF 1. with GVW of 6-12 tons

FINANCE, THE CHIEF OF THE LAND TRANSPORTATION covered by an authority to
OFFICE, THE COMMISSIONER OF CUSTOMS, and THE import issued by DTI;
COLLECTOR OF CUSTOMS, SUBIC SPECIAL ECONOMIC
ZONE, Petitioners, 2. with GVW above 12 tons.
vs.
MOTOR VEHICLE IMPORTERS ASSOCIATION OF SUBIC
BAY FREEPORT, INC., represented by its President 3.1.5 Special purpose vehicles:
ALFREDO S. GALANG, Respondent.
1. fire trucks
DECISION
2. ambulances
YNARES-SANTIAGO, J.:
3. funeral hearse/coaches
The instant consolidated petitions seek to annul and set aside the
Decisions of the Regional Trial Court of Olongapo City, Branch 72, 4. crane lorries
in Civil Case No. 20-0-04 and Civil Case No. 22-0-04, both dated
May 24, 2004; and the February 14, 2005 Decision of the Court of 5. tractor heads and truck
Appeals in CA-G.R. SP. No. 83284, which declared Article 2, tractors
Section 3.1 of Executive Order No. 156 (EO 156) unconstitutional.
Said executive issuance prohibits the importation into the country, 6. boom trucks
inclusive of the Special Economic and Freeport Zone or the Subic

7. tanker trucks
8. tank lorries with high
pressure spray gun
9. reefers or refrigerated trucks
10. mobile drilling derricks
11. transit/concrete mixers
12. mobile radiological units
13. wreckers or tow trucks
14. concrete pump trucks
15. aerial/bucket flat-form
trucks
16. street sweepers
17. vacuum trucks
18. garbage compactors
19. self loader trucks
20. man lift trucks
21. lighting trucks
22. trucks mounted with special
purpose equipment
23. all other types of vehicle
designed for a specific use.
The issuance of EO 156 spawned three separate actions for
declaratory relief before Branch 72 of the Regional Trial Court of
Olongapo City, all seeking the declaration of the unconstitutionality
of Article 2, Section 3.1 of said executive order. The cases were
filed by herein respondent entities, who or whose members, are
classified as Subic Bay Freeport Enterprises and engaged in the
business of, among others, importing and/or trading used motor
vehicles.
G.R. No. 164171:
On January 16, 2004, respondents Southwing Heavy Industries,
Inc., (Southwing) United Auctioneers, Inc. (United Auctioneers),
and Microvan, Inc. (Microvan), instituted a declaratory relief case
docketed as Civil Case No. 20-0-04,1 against the Executive
Secretary, Secretary of Transportation and Communication,
Commissioner of Customs, Assistant Secretary and Head of the
Land Transportation Office, Subic Bay Metropolitan Authority
(SBMA), Collector of Customs for the Port at Subic Bay Freeport
37
Zone, and the Chief of the Land Transportation Office at Subic Bay
Freeport Zone.
Southwing, United Auctioneers and Microvan prayed that judgment
be rendered (1) declaring Article 2, Section 3.1 of EO 156
unconstitutional and illegal; (2) directing the Secretary of Finance,
Commissioner of Customs, Collector of Customs and the Chairman
of the SBMA to allow the importation of used motor vehicles; (2)
ordering the Land Transportation Office and its subordinates inside
the Subic Special Economic Zone to process the registration of the
imported used motor vehicles; and (3) in general, to allow the
unimpeded entry and importation of used motor vehicles subject
only to the payment of the required customs duties.
Upon filing of petitioners’ answer/comment, respondents
Southwing and Microvan filed a motion for summary judgment
which was granted by the trial court. On May 24, 2004, a summary
judgment was rendered declaring that Article 2, Section 3.1 of EO
156 constitutes an unlawful usurpation of legislative power vested
by the Constitution with Congress. The trial court further held that
the proviso is contrary to the mandate of Republic Act No. 7227
(RA 7227) or the Bases Conversion and Development Act of 1992
which allows the free flow of goods and capital within the Freeport.
The dispositive portion of the said decision reads:
WHEREFORE, judgment is hereby rendered in favor of petitioner
declaring Executive Order 156 [Article 2, Section] 3.1 for being
unconstitutional and illegal; directing respondents Collector of
Customs based at SBMA to allow the importation and entry of used
motor vehicles pursuant to the mandate of RA 7227; directing
respondent Chief of the Land Transportation Office and its
subordinates inside the Subic Special Economic Zone or SBMA to
process the registration of imported used motor vehicle; and in
general, to allow unimpeded entry and importation of used motor
vehicles to the Philippines subject only to the payment of the
required customs duties.
SO ORDERED.2
From the foregoing decision, petitioners sought relief before this
Court via a petition for review on certiorari, docketed as G.R. No.
164171.
G.R. No. 164172:
On January 20, 2004, respondent Subic Integrated Macro Ventures
Corporation (Macro Ventures) filed with the same trial court, a
similar action for declaratory relief docketed as Civil Case No. 22-
0-04,3 with the same prayer and against the same parties4 as those in
Civil Case No. 20-0-04.
In this case, the trial court likewise rendered a summary judgment
on May 24, 2004, holding that Article 2, Section 3.1 of EO 156, is
repugnant to the constitution.5 Elevated to this Court via a petition
for review on certiorari, Civil Case No. 22-0-04 was docketed as
G.R. No. 164172.

G.R. No. 168741
On January 22, 2003, respondent Motor Vehicle Importers
Association of Subic Bay Freeport, Inc. (Association), filed another
action for declaratory relief with essentially the same prayer as
those in Civil Case No. 22-0-04 and Civil Case No. 20-0-04, against
the Executive Secretary, Secretary of Finance, Chief of the Land
Transportation Office, Commissioner of Customs, Collector of
Customs at SBMA and the Chairman of SBMA. This was docketed
as Civil Case No. 30-0-2003,6 before the same trial court.
In a decision dated March 10, 2004, the court a quo granted the
Association’s prayer and declared the assailed proviso as contrary to
the Constitution, to wit:
WHEREFORE, judgment is hereby rendered in favor of petitioner
declaring Executive Order 156 [Article 2, Section] 3.1 for being
unconstitutional and illegal; directing respondents Collector of
Customs based at SBMA to allow the importation and entry of used
motor vehicles pursuant to the mandate of RA 7227; directing
respondent Chief of the Land Transportation Office and its
subordinates inside the Subic Special Economic Zone or SBMA to
process the registration of imported used motor vehicles; directing
the respondent Chairman of the SBMA to allow the entry into the
Subic Special Economic Zone or SBMA imported used motor
vehicle; and in general, to allow unimpeded entry and importation
of used motor vehicles to the Philippines subject only to the
payment of the required customs duties.
SO ORDERED.7
Aggrieved, the petitioners in Civil Case No. 30-0-2003, filed a
petition for certiorari8 with the Court of Appeals (CA-G.R. SP. No.
83284) which denied the petition on February 14, 2005 and
sustained the finding of the trial court that Article 2, Section 3.1 of
EO 156, is void for being repugnant to the constitution. The
dispositive portion thereof, reads:
WHEREFORE, the instant petition for certiorari is hereby
DENIED. The assailed decision of the Regional Trial Court, Third
Judicial Region, Branch 72, Olongapo City, in Civil Case No. 30-0-
2003, accordingly, STANDS.
SO ORDERED.9
The aforequoted decision of the Court of Appeals was elevated to
this Court and docketed as G.R. No. 168741. In a Resolution dated
October 4, 2005,10 said case was consolidated with G.R. No.
164171 and G.R. No. 164172.
Petitioners are now before this Court contending that Article 2,
Section 3.1 of EO 156 is valid and applicable to the entire country,
including the Freeeport. In support of their arguments, they raise
procedural and substantive issues bearing on the constitutionality of
the assailed proviso. The procedural issues are: the lack of
respondents’ locus standi to question the validity of EO 156, the
propriety of challenging EO 156 in a declaratory relief proceeding
and the applicability of a judgment on the pleadings in this case.
38
Petitioners argue that respondents will not be affected by the
importation ban considering that their certificate of registration and
tax exemption do not authorize them to engage in the importation
and/or trading of used cars. They also aver that the actions filed by
respondents do not qualify as declaratory relief cases. Section 1,
Rule 63 of the Rules of Court provides that a petition for
declaratory relief may be filed before there is a breach or violation
of rights. Petitioners claim that there was already a breach of
respondents’ supposed right because the cases were filed more than
a year after the issuance of EO 156. In fact, in Civil Case No. 30-0-
2003, numerous warrants of seizure and detention were issued
against imported used motor vehicles belonging to respondent
Association’s members.
Petitioners’ arguments lack merit.
The established rule that the constitutionality of a law or
administrative issuance can be challenged by one who will sustain a
direct injury as a result of its enforcement 11 has been satisfied in the
instant case. The broad subject of the prohibited importation is "all
types of used motor vehicles." Respondents would definitely suffer
a direct injury from the implementation of EO 156 because their
certificate of registration and tax exemption authorize them to trade
and/or import new and used motor vehicles and spare parts,
except "used cars."12 Other types of motor vehicles imported and/or
traded by respondents and not falling within the category of used
cars would thus be subjected to the ban to the prejudice of their
business. Undoubtedly, respondents have the legal standing to assail
the validity of EO 156.
As to the propriety of declaratory relief as a vehicle for assailing the
executive issuance, suffice it to state that any breach of the rights of
respondents will not affect the case. In Commission on Audit of the
Province of Cebu v. Province of Cebu,13 the Court entertained a suit
for declaratory relief to finally settle the doubt as to the proper
interpretation of the conflicting laws involved, notwithstanding a
violation of the right of the party affected. We find no reason to
deviate from said ruling mindful of the significance of the present
case to the national economy.
So also, summary judgments were properly rendered by the trial
court because the issues involved in the instant case were pure
questions of law. A motion for summary judgment is premised on
the assumption that the issues presented need not be tried either
because these are patently devoid of substance or that there is no
genuine issue as to any pertinent fact. It is a method sanctioned by
the Rules of Court for the prompt disposition of a civil action in
which the pleadings raise only a legal issue, not a genuine issue as
to any material fact.14
At any rate, even assuming the procedural flaws raised by
petitioners truly exist, the Court is not precluded from brushing
aside these technicalities and taking cognizance of the action filed
by respondents considering its importance to the public and in
keeping with the duty to determine whether the other branches of
the government have kept themselves within the limits of the
Constitution.15
We now come to the substantive issues, which are: (1) whether
there is statutory basis for the issuance of EO 156; and (2) if the

answer is in the affirmative, whether the application of Article 2,
Section 3.1 of EO 156, reasonable and within the scope provided by
law.
The main thrust of the petition is that EO 156 is constitutional
because it was issued pursuant to EO 226, the Omnibus Investment
Code of the Philippines and that its application should be extended
to the Freeport because the guarantee of RA 7227 on the free flow
of goods into the said zone is merely an exemption from customs
duties and taxes on items brought into the Freeport and not an open
floodgate for all kinds of goods and materials without restriction.
In G.R. No. 168741, the Court of Appeals invalidated Article 2,
Section 3.1 of EO 156, on the ground of lack of any statutory basis
for the President to issue the same. It held that the prohibition on the
importation of used motor vehicles is an exercise of police power
vested on the legislature and absent any enabling law, the exercise
thereof by the President through an executive issuance, is void.
Police power is inherent in a government to enact laws, within
constitutional limits, to promote the order, safety, health, morals,
and general welfare of society. It is lodged primarily with the
legislature. By virtue of a valid delegation of legislative power, it
may also be exercised by the President and administrative boards, as
well as the lawmaking bodies on all municipal levels, including the
barangay.16 Such delegation confers upon the President quasi-
legislative power which may be defined as the authority delegated
by the law-making body to the administrative body to adopt rules
and regulations intended to carry out the provisions of the law and
implement legislative policy.17 To be valid, an administrative
issuance, such as an executive order, must comply with the
following requisites:
(1) Its promulgation must be authorized by the
legislature;
(2) It must be promulgated in accordance with the
prescribed procedure;
(3) It must be within the scope of the authority
given by the legislature; and
(4) It must be reasonable.18
Contrary to the conclusion of the Court of Appeals, EO 156 actually
satisfied the first requisite of a valid administrative order. It has
both constitutional and statutory bases.
Delegation of legislative powers to the President is permitted in
Section 28(2) of Article VI of the Constitution. It provides:
(2) The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as it
may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of
the national development program of the Government.19 (Emphasis
supplied)
39
The relevant statutes to execute this provision are:
1) The Tariff and Customs Code which authorizes the President,
in the interest of national economy, general welfare and/or national
security, to, inter alia, prohibit the importation of any commodity.
Section 401 thereof, reads:
Sec. 401. Flexible Clause. —
a. In the interest of national economy, general welfare and/or
national security, and subject to the limitations herein
prescribed, the President, upon recommendation of the
National Economic and Development Authority (hereinafter
referred to as NEDA), is hereby empowered: x x x (2) to
establish import quota or to ban imports of any commodity, as
may be necessary; x x x Provided, That upon periodic
investigations by the Tariff Commission and recommendation of the
NEDA, the President may cause a gradual reduction of protection
levels granted in Section One hundred and four of this Code,
including those subsequently granted pursuant to this section.
(Emphasis supplied)
2) Executive Order No. 226, the Omnibus Investment Code of the
Philippines which was issued on July 16, 1987, by then President
Corazon C. Aquino, in the exercise of legislative power under the
Provisional Freedom Constitution,20 empowers the President to
approve or reject the prohibition on the importation of any
equipment or raw materials or finished products. Pertinent
provisions thereof, read:
ART. 4. Composition of the board. The Board of Investments shall
be composed of seven (7) governors: The Secretary of Trade and
Industry, three (3) Undersecretaries of Trade and Industry to be
chosen by the President; and three (3) representatives from the
government agencies and the private sector x x x.
ART. 7. Powers and duties of the Board.
xxxx
(12) Formulate and implement rationalization programs for certain
industries whose operation may result in dislocation, overcrowding
or inefficient use of resources, thus impeding economic growth. For
this purpose, the Board may formulate guidelines for progressive
manufacturing programs, local content programs, mandatory
sourcing requirements and dispersal of industries. In appropriate
cases and upon approval of the President, the Board may
restrict, either totally or partially, the importation of any
equipment or raw materials or finished products involved in the
rationalization program; (Emphasis supplied)
3) Republic Act No. 8800, otherwise known as the "Safeguard
Measures Act" (SMA), and entitled "An Act Protecting Local
Industries By Providing Safeguard Measures To Be Undertaken In
Response To Increased Imports And Providing Penalties For
Violation Thereof,"21 designated the Secretaries22 of the Department
of Trade and Industry (DTI) and the Department of Agriculture, in
their capacity as alter egos of the President, as the implementing
authorities of the safeguard measures, which include, inter alia,
modification or imposition of any quantitative restriction on the

importation of a product into the Philippines. The purpose of the
SMA is stated in the declaration of policy, thus:
SEC. 2. Declaration of Policy. – The State shall promote
competitiveness of domestic industries and producers based on
sound industrial and agricultural development policies, and efficient
use of human, natural and technical resources. In pursuit of this goal
and in the public interest, the State shall provide safeguard measures
to protect domestic industries and producers from increased imports
which cause or threaten to cause serious injury to those domestic
industries and producers.
There are thus explicit constitutional and statutory permission
authorizing the President to ban or regulate importation of articles
and commodities into the country.
Anent the second requisite, that is, that the order must be issued or
promulgated in accordance with the prescribed procedure, it is
necessary that the nature of the administrative issuance is properly
determined. As in the enactment of laws, the general rule is that, the
promulgation of administrative issuances requires previous notice
and hearing, the only exception being where the legislature itself
requires it and mandates that the regulation shall be based on certain
facts as determined at an appropriate investigation.23 This exception
pertains to the issuance of legislative rules as distinguished from
interpretative rules which give no real consequence more than
what the law itself has already prescribed;24 and are designed
merely to provide guidelines to the law which the administrative
agency is in charge of enforcing.25 A legislative rule, on the other
hand, is in the nature of subordinate legislation, crafted to
implement a primary legislation.
In Commissioner of Internal Revenue v. Court of Appeals,26 and
Commissioner of Internal Revenue v. Michel J. Lhuillier Pawnshop,
Inc.,27 the Court enunciated the doctrine that when an administrative
rule goes beyond merely providing for the means that can facilitate
or render less cumbersome the implementation of the law and
substantially increases the burden of those governed, it behooves
the agency to accord at least to those directly affected a chance to be
heard and, thereafter, to be duly informed, before the issuance is
given the force and effect of law.
In the instant case, EO 156 is obviously a legislative rule as it seeks
to implement or execute primary legislative enactments intended to
protect the domestic industry by imposing a ban on the importation
of a specified product not previously subject to such prohibition.
The due process requirements in the issuance thereof are embodied
in Section 40128 of the Tariff and Customs Code and Sections 5 and
9 of the SMA29 which essentially mandate the conduct of
investigation and public hearings before the regulatory measure or
importation ban may be issued.
In the present case, respondents neither questioned before this Court
nor with the courts below the procedure that paved the way for the
issuance of EO 156. What they challenged in their petitions before
the trial court was the absence of "substantive due process" in the
issuance of the EO.30 Their main contention before the court a quo
is that the importation ban is illogical and unfair because it
unreasonably drives them out of business to the prejudice of the
national economy.
40
Considering the settled principle that in the absence of strong
evidence to the contrary, acts of the other branches of the
government are presumed to be valid,31 and there being no objection
from the respondents as to the procedure in the promulgation of EO
156, the presumption is that said executive issuance duly complied
with the procedures and limitations imposed by law.
To determine whether EO 156 has complied with the third and
fourth requisites of a valid administrative issuance, to wit, that it
was issued within the scope of authority given by the legislature and
that it is reasonable, an examination of the nature of a Freeport
under RA 7227 and the primordial purpose of the importation ban
under the questioned EO is necessary.
RA 7227 was enacted providing for, among other things, the sound
and balanced conversion of the Clark and Subic military
reservations and their extensions into alternative productive uses in
the form of Special Economic and Freeport Zone, or the Subic Bay
Freeport, in order to promote the economic and social development
of Central Luzon in particular and the country in general.
The Rules and Regulations Implementing RA 7227 specifically
defines the territory comprising the Subic Bay Freeport, referred to
as the Special Economic and Freeport Zone in Section 12 of RA
7227 as "a separate customs territory 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
Philippine-U.S. Military Base Agreement as amended and within
the territorial jurisdiction of Morong and Hermosa, Province of
Bataan, the metes and bounds of which shall be delineated by the
President of the Philippines; provided further that pending
establishment of secure perimeters around the entire SBF, the SBF
shall refer to the area demarcated by the SBMA pursuant to Section
1332 hereof."
Among the salient provisions of RA 7227 are as follows:
SECTION 12. Subic Special Economic Zone. —
xxxx
The abovementioned zone shall be subject to the following policies:
xxxx
(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;
The Freeport was designed to ensure free flow or movement of
goods and capital within a portion of the Philippine territory in
order to attract investors to invest their capital in a business climate
with the least governmental intervention. The concept of this zone
was explained by Senator Guingona in this wise:
Senator Guingona. Mr. President, the special economic zone is
successful in many places, particularly Hong Kong, which is a free
port. The difference between a special economic zone and an
industrial estate is simply expansive in the sense that the
commercial activities, including the establishment of banks,
services, financial institutions, agro-industrial activities, maybe
agriculture to a certain extent.
This delineates the activities that would have the least of
government intervention, and the running of the affairs of the
special economic zone would be run principally by the investors
themselves, similar to a housing subdivision, where the
subdivision owners elect their representatives to run the affairs
of the subdivision, to set the policies, to set the guidelines.
We would like to see Subic area converted into a little Hong
Kong, Mr. President, where there is a hub of free port and free
entry, free duties and activities to a maximum spur generation
of investment and jobs.
While the investor is reluctant to come in the Philippines, as a rule,
because of red tape and perceived delays, we envision this special
economic zone to be an area where there will be minimum
government interference.
The initial outlay may not only come from the Government or the
Authority as envisioned here, but from them themselves, because
they would be encouraged to invest not only for the land but also
for the buildings and factories. As long as they are convinced that in
such an area they can do business and reap reasonable profits, then
many from other parts, both local and foreign, would invest, Mr.
President.33 (Emphasis, added)
With minimum interference from the government, investors can, in
general, engage in any kind of business as well as import and export
any article into and out of the Freeport. These are among the rights
accorded to Subic Bay Freeport Enterprises under Section 39 of the
Rules and Regulations Implementing RA 7227, thus –
SEC. 39. Rights and Obligations.- SBF Enterprises shall have the
following rights and obligations:
a. To freely engage in any business, trade, manufacturing, financial
or service activity, and to import and export freely all types of
41
goods into and out of the SBF, subject to the provisions of the Act,
these Rules and other regulations that may be promulgated by the
SBMA;
Citing, inter alia, the interpellations of Senator Enrile, petitioners
claim that the "free flow or movement of goods and capital" only
means that goods and material brought within the Freeport shall not
be subject to customs duties and other taxes and should not be
construed as an open floodgate for entry of all kinds of goods. They
thus surmise that the importation ban on motor vehicles is
applicable within the Freeport. Pertinent interpellations of Senator
Enrile on the concept of Freeport is as follows:
Senator Enrile: Mr. President, I think we are talking here of
sovereign concepts, not territorial concepts. The concept that we are
supposed to craft here is to carve out a portion of our terrestrial
domain as well as our adjacent waters and say to the world: "Well,
you can set up your factories in this area that we are circumscribing,
and bringing your equipment and bringing your goods, you are not
subject to any taxes and duties because you are not within the
customs jurisdiction of the Republic of the Philippines, whether you
store the goods or only for purposes of transshipment or whether
you make them into finished products again to be reexported to
other lands."
xxxx
My understanding of a "free port" is, we are in effect carving
out a part of our territory and make it as if it were foreign
territory for purposes of our customs laws, and that people can
come, bring their goods, store them there and bring them out
again, as long as they do not come into the domestic commerce
of the Republic.
We do not really care whether these goods are stored here. The only
thing that we care is for our people to have an employment because
of the entry of these goods that are being discharged, warehoused
and reloaded into the ships so that they can be exported. That will
generate employment for us. For as long as that is done, we are
saying, in effect, that we have the least contact with our tariff and
customs laws and our tax laws. Therefore, we consider these goods
as outside of the customs jurisdiction of the Republic of the
Philippines as yet, until we draw them from this territory and bring
them inside our domestic commerce. In which case, they have to
pass through our customs gate. I thought we are carving out this
entire area and convert it into this kind of concept.34
However, contrary to the claim of petitioners, there is nothing in the
foregoing excerpts which absolutely limits the incentive to Freeport
investors only to exemption from customs duties and taxes. Mindful
of the legislative intent to attract investors, enhance investment and
boost the economy, the legislature could not have limited the
enticement only to exemption from taxes. The minimum
interference policy of the government on the Freeport extends to the
kind of business that investors may embark on and the articles
which they may import or export into and out of the zone. A
contrary interpretation would defeat the very purpose of the
Freeport and drive away investors.

It does not mean, however, that the right of Freeport enterprises to
import all types of goods and article is absolute. Such right is of
course subject to the limitation that articles absolutely prohibited by
law cannot be imported into the Freeport.35 Nevertheless, in
determining whether the prohibition would apply to the Freeport,
resort to the purpose of the prohibition is necessary.
In issuing EO 156, particularly the prohibition on importation under
Article 2, Section 3.1, the President envisioned to rationalize the
importation of used motor vehicles and to enhance the capabilities
of the Philippine motor manufacturing firms to be globally
competitive producers of completely build-up units and their parts
and components for the local and export markets. 36 In justifying the
issuance of EO 156, petitioners alleged that there has been a decline
in the sales of new vehicles and a remarkable growth of the sales of
imported used motor vehicles. To address the same, the President
issued the questioned EO to prevent further erosion of the already
depressed market base of the local motor vehicle industry and to
curtail the harmful effects of the increase in the importation of used
motor vehicles.37
Taking our bearings from the foregoing discussions, we hold that
the importation ban runs afoul the third requisite for a valid
administrative order. To be valid, an administrative issuance must
not be ultra vires or beyond the limits of the authority conferred. It
must not supplant or modify the Constitution, its enabling statute
and other existing laws, for such is the sole function of the
legislature which the other branches of the government cannot
usurp. As held in United BF Homeowner’s Association v. BF
Homes, Inc.:38
The rule-making power of a public administrative body is a
delegated legislative power, which it may not use either to abridge
the authority given it by Congress or the Constitution or to enlarge
its power beyond the scope intended. Constitutional and statutory
provisions control what rules and regulations may be promulgated
by such a body, as well as with respect to what fields are subject to
regulation by it. It may not make rules and regulations which are
inconsistent with the provisions of the Constitution or a statute,
particularly the statute it is administering or which created it, or
which are in derogation of, or defeat, the purpose of a statute.
In the instant case, the subject matter of the laws authorizing the
President to regulate or forbid importation of used motor vehicles,
is the domestic industry. EO 156, however, exceeded the scope of
its application by extending the prohibition on the importation of
used cars to the Freeport, which RA 7227, considers to some extent,
a foreign territory. The domestic industry which the EO seeks to
protect is actually the "customs territory" which is defined under
the Rules and Regulations Implementing RA 7227, as follows:
"the portion of the Philippines outside the Subic Bay Freeport
where the Tariff and Customs Code of the Philippines and other
national tariff and customs laws are in force and effect."39
The proscription in the importation of used motor vehicles should
be operative only outside the Freeport and the inclusion of said zone
within the ambit of the prohibition is an invalid modification of RA
7227. Indeed, when the application of an administrative issuance
modifies existing laws or exceeds the intended scope, as in the
42
instant case, the issuance becomes void, not only for being ultra
vires, but also for being unreasonable.
This brings us to the fourth requisite. It is an axiom in
administrative law that administrative authorities should not act
arbitrarily and capriciously in the issuance of rules and regulations.
To be valid, such rules and regulations must be reasonable and
fairly adapted to secure the end in view. If shown to bear no
reasonable relation to the purposes for which they were authorized
to be issued, then they must be held to be invalid.40
There is no doubt that the issuance of the ban to protect the
domestic industry is a reasonable exercise of police power. The
deterioration of the local motor manufacturing firms due to the
influx of imported used motor vehicles is an urgent national concern
that needs to be swiftly addressed by the President. In the exercise
of delegated police power, the executive can therefore validly
proscribe the importation of these vehicles. Thus, in Taxicab
Operators of Metro Manila, Inc. v. Board of Transportation,41 the
Court held that a regulation phasing out taxi cabs more than six
years old is a valid exercise of police power. The regulation was
sustained as reasonable holding that the purpose thereof was to
promote the convenience and comfort and protect the safety of the
passengers.
The problem, however, lies with respect to the application of the
importation ban to the Freeport. The Court finds no logic in the all
encompassing application of the assailed provision to the Freeport
which is outside the customs territory. As long as the used motor
vehicles do not enter the customs territory, the injury or harm
sought to be prevented or remedied will not arise. The application
of the law should be consistent with the purpose of and reason for
the law. Ratione cessat lex, et cessat lex. When the reason for the
law ceases, the law ceases. It is not the letter alone but the spirit of
the law also that gives it life.42 To apply the proscription to the
Freeport would not serve the purpose of the EO. Instead of
improving the general economy of the country, the application of
the importation ban in the Freeport would subvert the avowed
purpose of RA 7227 which is to create a market that would draw
investors and ultimately boost the national economy.
In similar cases, we also declared void the administrative issuance
or ordinances concerned for being unreasonable. To illustrate, in De
la Cruz v. Paras,43 the Court held as unreasonable and
unconstitutional an ordinance characterized by overbreadth. In that
case, the Municipality of Bocaue, Bulacan, prohibited the operation
of all night clubs, cabarets and dance halls within its jurisdiction for
the protection of public morals. As explained by the Court:
x x x It cannot be said that such a sweeping exercise of a lawmaking
power by Bocaue could qualify under the term reasonable. The
objective of fostering public morals, a worthy and desirable end can
be attained by a measure that does not encompass too wide a field.
Certainly the ordinance on its face is characterized by overbreadth.
The purpose sought to be achieved could have been attained by
reasonable restrictions rather than by an absolute prohibition. The
admonition in Salaveria should be heeded: "The Judiciary should
not lightly set aside legislative action when there is not a clear
invasion of personal or property rights under the guise of police
regulation." It is clear that in the guise of a police regulation, there
was in this instance a clear invasion of personal or property rights,

personal in the case of those individuals desirous of patronizing
those night clubs and property in terms of the investments made and
salaries to be earned by those therein employed.
Lupangco v. Court of Appeals,44 is a case involving a resolution
issued by the Professional Regulation Commission which
prohibited examinees from attending review classes and receiving
handout materials, tips, and the like three days before the date of
examination in order to preserve the integrity and purity of the
licensure examinations in accountancy. Besides being unreasonable
on its face and violative of academic freedom, the measure was
found to be more sweeping than what was necessary, viz:
Needless to say, the enforcement of Resolution No. 105 is not a
guarantee that the alleged leakages in the licensure examinations
will be eradicated or at least minimized. Making the examinees
suffer by depriving them of legitimate means of review or
preparation on those last three precious days — when they should
be refreshing themselves with all that they have learned in the
review classes and preparing their mental and psychological make-
up for the examination day itself — would be like uprooting the tree
to get rid of a rotten branch. What is needed to be done by the
respondent is to find out the source of such leakages and stop it
right there. If corrupt officials or personnel should be terminated
from their loss, then so be it. Fixers or swindlers should be flushed
out. Strict guidelines to be observed by examiners should be set up
and if violations are committed, then licenses should be suspended
or revoked. x x x
In Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc.,45 the
Court likewise struck down as unreasonable and overbreadth a city
ordinance granting an exclusive franchise for 25 years, renewable
for another 25 years, to one entity for the construction and operation
of one common bus and jeepney terminal facility in Lucena City.
While professedly aimed towards alleviating the traffic congestion
alleged to have been caused by the existence of various bus and
jeepney terminals within the city, the ordinance was held to be
beyond what is reasonably necessary to solve the traffic problem in
the city.
By parity of reasoning, the importation ban in this case should also
be declared void for its too sweeping and unnecessary application to
the Freeport which has no bearing on the objective of the
prohibition. If the aim of the EO is to prevent the entry of used
motor vehicles from the Freeport to the customs territory, the
solution is not to forbid entry of these vehicles into the Freeport, but
to intensify governmental campaign and measures to thwart illegal
ingress of used motor vehicles into the customs territory.
At this juncture, it must be mentioned that on June 19, 1993,
President Fidel V. Ramos issued Executive Order No. 97-A,
"Further Clarifying The Tax And Duty-Free Privilege Within The
Subic Special Economic And Free Port Zone," Section 1 of which
provides:
SECTION 1. The following guidelines shall govern the tax and
duty-free privilege within the Secured Area of the Subic Special
Economic and Free Port Zone:
43
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. 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 dutry-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.
In Tiu v. Court of Appeals46 as reiterated in Coconut Oil Refiners
Association, Inc. v. Torres,47 this provision limiting the special
privileges on tax and duty-free importation in the presently fenced-
in former Subic Naval Base has been declared valid and
constitutional and in accordance with RA 7227. Consistent with
these rulings and for easier management and monitoring of
activities and to prevent fraudulent importation of merchandise and
smuggling, the free flow and importation of used motor vehicles
shall be operative only within the "secured area."
In sum, the Court finds that Article 2, Section 3.1 of EO 156 is void
insofar as it is made applicable to the presently secured fenced-in
former Subic Naval Base area as stated in Section 1.1 of EO 97-A.
Pursuant to the separability clause48 of EO 156, Section 3.1 is
declared valid insofar as it applies to the customs territory or the
Philippine territory outside the presently secured fenced-in former
Subic Naval Base area as stated in Section 1.1 of EO 97-A. Hence,
used motor vehicles that come into the Philippine territory via the
secured fenced-in former Subic Naval Base area may be stored,
used or traded therein, or exported out of the Philippine territory,
but they cannot be imported into the Philippine territory outside of
the secured fenced-in former Subic Naval Base area.
WHEREFORE, the petitions are PARTIALLY GRANTED and the
May 24, 2004 Decisions of Branch 72, Regional Trial Court of
Olongapo City, in Civil Case No. 20-0-04 and Civil Case No. 22-0-
04; and the February 14, 2005 Decision of the Court of Appeals in
CA-G.R. SP No. 63284, are MODIFIED insofar as they declared
Article 2, Section 3.1 of Executive Order No. 156, void in its
entirety.
Said provision is declared VALID insofar as it applies to the
Philippine territory outside the presently fenced-in former Subic
Naval Base area and VOID with respect to its application to the
secured fenced-in former Subic Naval Base area.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
 44

LEONARDO A.
REYNATO S. PUNO
QUISUMBING
Associate Justice
Asscociate Justice
ANGELINA SANDOVAL-
ANTONIO T. CARPIO
GUTIERREZ
Asscociate Justice
Associate Justice
MA. ALICIA AUSTRIA-
RENATO C. CORONA
MARTINEZ
Asscociate Justice
Associate Justice
CONCHITA CARPIO-
ROMEO J. CALLEJO, SR.
MORALES
Asscociate Justice
Associate Justice
ADOLFO S. AZCUNA DANTE O. TINGA
Associate Justice Asscociate Justice
MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
Associate Justice Asscociate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby

certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the
opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

Social Justice Society (SJS) Officers, Namely, Samson S.
Alcantara, and Vladimir Alarique T. Cabigao V. Alfredo S.
Lim, in his capacity as mayor of the City of Manila, G.R. No.
187836, November 25, 2014
♦ Decision, Perez [J]
♦ Concurring and Dissenting Opinion, Leonen [J]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 187836 November 25, 2014
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS, NAMELY,
SAMSON S. ALCANTARA, and VLADIMIR ALARIQUE T.
CABIGAO, Petitioners,
vs.
ALFREDO S. LIM, in his capacity as mayor of the City of
Manila, Respondent.
x-----------------------x
G.R. No. 187916
JOSE L. ATIENZA, JR., BIENVINIDO M. ABANTE, MA.
LOURDES M. ISIP-GARCIA, RAFAEL P. BORROMEO
JOCELYN DAWIS-ASUNCION, minors MARIAN REGINA
B. TARAN, MACAILA RICCI B. TARAN, RICHARD
KENNETH B. TARAN, represented and joined by their parents
RICHARD AND MARITES TARAN, minors CZARINA
ALYSANDRA C. RAMOS, CEZARAH ADRIANNA C.
RAMOS, and CRISTEN AIDAN C. RAMOS represented and
joined by their mother DONNA C. RAMOS, minors JAZMIN
SYLLITA T. VILA AND ANTONIO T. CRUZ IV, represented
and joined by their mother MAUREEN C. TOLENTINO,
Petitioners,
vs.
MAYOR ALFREDO S. LIM, VICE MAYOR FRANCISCO
DOMAGOSO, COUNCILORS ARLENE W. KOA, MOISES T.
LIM, JESUS FAJARDO LOUISITO N. CHUA, VICTORIANO
A. MELENDEZ, JOHN MARVIN C. NIETO, ROLANDO M.
VALERIANO, RAYMUNDO R. YUPANGCO, EDWARD VP
MACEDA, RODERICK D. V ALBUENA, JOSEFINA M.
SISCAR, SALVADOR PHILLIP H. LACUNA, LUCIANO M.
VELOSO, CARLO V. LOPEZ, ERNESTO F. RIVERA,1
DANILO VICTOR H. LACUNA, JR., ERNESTO G. ISIP,
HONEY H. LACUNA-PANGAN, ERNESTO M. DIONISO, JR.
and ERICK IAN O. NIEVA, Respondents.
x-----------------------x
CHEVRON PHILIPPINES INC., PETRON CORPORATION
AND PILIPINAS SHELL PETROLEUM CORPORATION,
Intervenors.
45
DECISION
PEREZ, J.:
Challenged in these consolidated petitions2 is the validity of
Ordinance No. 81873 entitled "AN ORDINANCE AMENDING
ORDINANCE NO. 8119, OTHERWISE KNOWN AS ‘THE
MANILA COMPREHENSIVE LAND USE PLAN AND ZONING
ORDINANCE OF 2006,’ BY CREATING A MEDIUM
INDUSTRIAL ZONE (1-2) AND HEAVY INDUSTRIAL ZONE
(1-3), AND PROVIDING FOR ITS ENFORCEMENT" enacted by
the Sangguniang Panlungsod of Manila (Sangguniang Panlungsod)
on 14 May 2009.
The creation of a medium industrial zone (1-2) and heavy industrial
zone (1-3) effectively lifted the prohibition against owners and
operators of businesses, including herein intervenors Chevron
Philippines, Inc. (Chevron), Pilipinas Shell Petroleum Corporation
(Shell), and Petron Corporation (Petron), collectively referred to as
the oil companies, from operating in the designated commercial
zone – an industrial zone prior to the enactment of Ordinance No.
80274 entitled "AN ORDINANCE RECLASSIFYING THE LAND
USE OF THAT PORTION OF LAND BOUNDED BY THE
PASIGRIVER IN THE NORTH, PNR RAILROAD TRACK IN
THE EAST, BEATA ST. IN THE SOUTH, PALUMPONG ST. IN
THE SOUTHWEST AND ESTERO DE PANDACAN IN THE
WEST, PNR RAILROAD IN THE NORTHWEST AREA,
ESTERO DE PANDACAN IN THE NORTHEAST, PASIG
RIVER IN THE SOUTHEAST AND DR. M. L. CARREON IN
THE SOUTHWEST, THE AREA OF PUNTA, STA.ANA
BOUNDED BY THE PASIG RIVER, MARCELINO OBRERO
ST., MAYO 28 ST. AND THE F. MANALO STREET FROM
INDUSTRIAL II TO COMMERCIAL I," and Ordinance No. 81195
entitled "AN ORDINANCE ADOPTING THE MANILA
COMPREHENSIVE LAND USE PLAN AND ZONING
REGULATIONS OF 2006 AND PROVIDING FOR THE
ADMINISTRATION, ENFORCEMENT AND AMENDMENT
THERETO."
The Parties
Petitioners allege the parties’ respective capacity to sue and be sued,
viz:
Residence Suing capacity aside from being residents of
Petitioners
in Manila Manila other personal circumstances
G.R. No. 187836
Manila taxpayer;
One of the petitioners
in SJS v. Atienza
Not mentioned in the (G.R. No. 156052);*
SJS Officer Samson
petition; holding Pesident of
S. Alcantara
office in Ermita, ABAKADA GURO
(Alcantara)
Manila PARTY LIST with
members who
are residents of the
City of Manila
 46

SJS Officer
One of the petitioners
Vladimir Alarique
Pandacan in SJS v. Atienza Respondents Sued in their capacity as
T. Cabigao
(G.R. No. 156052)
(Cabigao)
G.R. No. 187916
* The allegation is inaccurate. SJS Officer Alcantara is actually one
of the counsels for petitioner SJS in G.R. No. 156052. The Vice-Mayor and
petitioners in that case are the SJS itself, Cabigao and Bonifacio S. Vice-Mayor Francisco Domagoso (Vice-Mayor Presiding Officer
Tumbokon (Tumbokon). Domagoso) of the City
Council of Manila
G.R. No. 187916 Principal author
of City
Arlene Woo Koa
Ordinance No.
Former Mayor of
8187
Manila;
Secretary of Moises T. Lim, Jesus Fajardo, Louisito N.
Former Mayor Jose L. Atienza, Jr. San Department of Chua, Victoriano A. Melendez, John Marvin Personal and
(Mayor Atienza) Andres Environment and Nieto, Rolando M. Valeriano, Raymondo R. official capacities
Natural Yupangco, Edward VP Maceda, Roderick D. as councilors who
Resources Valbuena, Josefina M. Siscar, Phillip H. voted and
(DENR) Lacuna, Luciano M. Veloso, Carlo V. Lopez, approved City
Ernesto F. Rivera,6 Danilo Victor H. Lacuna, Ordinance No.
Citizen and
Jr., Ernesto G. Isip, Honey H. Lacuna-Pangan, 8187
taxpayer;
Sta. Ernesto M. Dionisio, Jr., Erick Ian O. Nieva
Bienvinido M. Abante member of the
Ana
House of
Representatives The following intervenors, all of which are corporations organized
Incumbent City under Philippine laws, intervened:7
San
Ma. Lourdes M. Isip-Garcia Councilor of the
Miguel
City of Manila Intervenors Nature of Business
Incumbent City
Rafael P. Borromeo Paco Councilor of the
City of Manila importing, distributing and marketing of
Chevron Philippines,
petroleum products in the Philippines
Incumbent City Inc. (CHEVRON)
Sta. since 1922
Jocelyn Dawis-Asuncion Councilor of the
Mesa Pilipinas Shell manufacturing, refining, importing,
City of Manila
Petroleum Corporation distributing and marketing of petroleum
Minors Marian Regina B. Taran, (SHELL) products in the Philippines
Macalia Ricci B. Taran, Richard Citizens, real
Kenneth B. Taran, represented and Paco estate owners and manufacturing, refining, importing,
Petron Corporation
joined by their parents Richard and taxpayers distributing and marketing of petroleum
(PETRON)
Marites Taran products in the Philippines
Minors Czarina Alysandra C. Ramos,
Cezarah Adrianna C. Ramos, and Citizens, real They claim that their rights with respect to the oil depots in
Cristen Aidan C. Ramos represented Tondo estate owners and Pandacan would be directly affected by the outcome of these cases.
and joined by taxpayers
their mother Donna c. Ramos The Antecedents
Minors Jasmin Syllita T. Vila and
Citizens, real
Antonio T. Cruz IV, represented and Sta. These petitions are a sequel to the case of Social Justice Society v.
estate owners and
joined by their mother Maureen C. Ana Mayor Atienza, Jr.8 (hereinafter referred to asG.R. No. 156052),
taxpayers
Tolentino where the Court found: (1) that the ordinance subject thereof –
Ordinance No. 8027 – was enacted "to safeguard the rights to life,
security and safety of the inhabitants of Manila;"9 (2) that it had
Respondents Sued in their capacity as passed the tests of a valid ordinance; and (3) that it is not
superseded by Ordinance No. 8119.10 Declaring that it is
G.R. Nos. 187836 and 187916 constitutional and valid,11 the Court accordingly ordered its
immediate enforcement with a specific directive on the relocation
and transfer of the Pandacan oil terminals.12
Incumbent Mayor of
Former Mayor Alfredo S. Lim (Mayor Manila at
Lim) the time of the filing of the Highlighting that the Court has soruled that the Pandacan oil depots
present petitions should leave, herein petitioners now seek the nullification of
Ordinance No. 8187, which contains provisions contrary to those

embodied in Ordinance No. 8027. Allegations of violation of the
right to health and the right to a healthful and balanced environment
are also included.
For a better perspective of the facts of these cases, we again trace
the history of the Pandacan oil terminals, aswell as the intervening
events prior to the reclassification of the land use from Industrial II
to Commercial I under Ordinance No. 8027 until the creation of
Medium Industrial Zone and Heavy Industrial Zone pursuant to
Ordinance No. 8187.
History of the Pandacan
Oil Terminals
We quote the following from the Resolution of the Court in G.R.
No. 156052:
Pandacan (one of the districts of the City of Manila) is situated
along the banks of the Pasig [R]iver. Atthe turn of the twentieth
century, Pandacan was unofficially designated as the industrial
center of Manila. The area, then largely uninhabited, was ideal for
various emerging industries as the nearby river facilitated the
transportation of goods and products. In the 1920s, it was
classifiedas an industrial zone. Among its early industrial settlers
werethe oil companies. x x x On December 8, 1941, the Second
World War reached the shores of the Philippine Islands. x x x [I]n
their zealous attempt to fend off the Japanese Imperial Army, the
United States Army took control of the Pandacan Terminals and
hastily made plans to destroy the storage facilities to deprive the
advancing Japanese Army of a valuable logistics weapon. The U.S.
Army burned unused petroleum, causing a frightening
conflagration. Historian Nick Joaquin recounted the events as
follows:
After the USAFFE evacuated the City late in December 1941, all
army fuel storage dumps were set on fire. The flames spread,
enveloping the City in smoke, setting even the rivers ablaze,
endangering bridges and all riverside buildings. … For one week
longer, the "open city" blazed—a cloud of smoke by day, a pillar of
fire by night.
The fire consequently destroyed the Pandacan Terminals and
rendered its network of depots and service stations inoperative.
After the war, the oil depots were reconstructed. Pandacan changed
as Manila rebuilt itself. The three major oil companies resumed the
operation of their depots. But the district was no longer a sparsely
populated industrial zone; it had evolved into a bustling,
hodgepodge community. Today, Pandacan has become a densely
populated area inhabited by about 84,000 people, majority of whom
are urban poor who call it home. Aside from numerous industrial
installations, there are also small businesses, churches, restaurants,
schools, daycare centers and residences situated there. Malacañang
Palace, the official residence of the President of the Philippines and
the seat of governmental power, is just two kilometers away. There
is a private school near the Petron depot. Along the walls of the
Shell facility are shanties of informal settlers. More than 15,000
students are enrolled in elementary and high schools situated near
these facilities. A university with a student population of about
47
25,000 is located directly across the depot on the banks of the Pasig
[R]iver.
The 36-hectare Pandacan Terminals house the oil companies’
distribution terminals and depot facilities.1âwphi1 The refineries of
Chevron and Shell in Tabangao and Bauan, both in Batangas,
respectively, are connected to the Pandacan Terminals through a
114-kilometer underground pipeline system. Petron’s refinery in
Limay, Bataan, on the other hand, also services the depot. The
terminals store fuel and other petroleum products and supply 95%
of the fuel requirements of Metro Manila, 50% of Luzon’s
consumption and 35% nationwide. Fuel can also be transported
through barges along the Pasig [R]iver ortank trucks via the South
Luzon Expressway.13 (Citations omitted)
Memorandum of Agreement (MOA)
dated 12 October 2001 between the oil companies
and the Department of Energy (DOE)
On 12 October 2001, the oil companies and the DOE entered into a
MOA14 "in light of recent international developments involving
acts of terrorism on civilian and government landmarks,"15
"potential new security risks relating to the Pandacan oil terminals
and the impact on the surrounding community which may be
affected,"16 and "to address the perceived risks posed by the
proximity of communities, businesses and offices to the Pandacan
oil terminals, consistent with the principle of sustainable
development."17 The stakeholders acknowledged that "there is a
need for a comprehensive study to address the economic, social,
environmental and security concerns with the end in view of
formulating a Master Plan to address and minimize the potential
risks and hazards posed by the proximity of communities,
businesses and offices to the Pandacan oil terminals without
adversely affecting the security and reliability of supply and
distribution of petroleum products to Metro Manila and the rest of
Luzon, and the interests of consumers and users of such petroleum
products in those areas."18
The enactment of Ordinance No. 8027
against the continued stay of the oil depots
The MOA, however, was short-lived.
On 20 November 2001, during the incumbency of former Mayor
Jose L. Atienza, Jr. (Mayor Atienza) – nowone of the petitioners in
G.R. No. 187916 – the Sangguniang Panlungsod enacted Ordinance
No. 802719 reclassifying the use of the land in Pandacan, Sta. Ana,
and its adjoining areas from Industrial II to Commercial I.
The owners and operators of the businesses thus affected by the
reclassification were given six months from the date of effectivity
of the Ordinance within which to stop the operation of their
businesses.
Nevertheless, the oil companies weregranted an extension of until
30 April 2003 within which to comply with the Ordinance pursuant
to the following:
(1) Memorandum of Understanding (MOU)20
dated 26 June 2002 between the City of Manila

and the Department of Energy (DOE), on the one
hand, and the oil companies, on the other, where
the parties agreed that "the scaling down of the
Pandacan Terminals [was] the most viable and
practicable option"21 and committed to adopt
specific measures22 consistent with the said
objective;
(2) Resolution No. 97 dated 25 July 200223 of the
Sangguniang Panlungsod, which ratified the 26
June 2002 MOU but limited the extension of the
period within which to comply to six months from
25 July 2002; and
(3) Resolution No. 13 dated 30 January 200324 of
the Sanguniang Panlungsod, which extended the
validity of Resolution No. 97 to 30 April 2003,
authorized then Mayor Atienza to issue special
business permits to the oil companies, and called
for a reassessment of the ordinance.
Social Justice Society v. Atienza (G.R. No. 156052):
The filing of an action for mandamus
before the Supreme Court
to enforce Ordinance No. 8027
In the interim, an original action for mandamus entitled Social
Justice Society v. Atienza, Jr. docketed as G.R. No. 15605225 was
filed on 4 December 2002 by Tumbokon and herein petitioners SJS
and Cabigao against then Mayor Atienza. The petitioners sought to
compel former Mayor Atienza to enforce Ordinance No. 8027 and
cause the immediate removal of the terminals of the oil
companies.26
Issuance by the Regional Trial Court (RTC)
of writs of preliminary prohibitory injunction
and preliminary mandatory injunction,
and status quo order in favor of the oil companies
Unknown to the Court, during the pendency of G.R. No. 156052,
and before the expiration of the validity ofResolution No. 13, the oil
companies filed the following actions before the Regional Trial
Court of Manila: (1) an action for the annulment of Ordinance No.
8027 with application for writs of preliminary prohibitory
injunction and preliminary mandatory injunction – by Chevron; (2)
a petition for prohibition and mandamus also for the annulment of
the Ordinance with application for writs of preliminary prohibitory
injunction and preliminary mandatory injunction – by Shell; and (3)
a petition assailing the validity of the Ordinance with prayer for the
issuance of a writ of preliminary injunction and/or temporary
restraining order (TRO) – by Petron.27
Writs of preliminary prohibitory injunction and preliminary
mandatory injunction were issued in favor of Chevron and Shell on
19 May 2003. Petron, on the other hand, obtained a status quo order
on 4 August 2004.28
The Enactment of Ordinance No. 8119 defining the Manila land use
plan and zoning regulations
48
On 16 June 2006, then Mayor Atienza approved Ordinance No.
8119 entitled "An Ordinance Adopting the Manila Comprehensive
Land Use Plan and Zoning Regulations of 2006 and Providing for
the Administration, Enforcement and Amendment thereto."29
Pertinent provisions relative to these cases are the following:
(a) Article IV, Sec. 730 enumerating the existing
zones or districts in the City of Manila;
(b) Article V, Sec. 2331 designating the Pandacan
oil depot area as a "Planned Unit
Development/Overlay Zone" (O-PUD); and
(c) the repealing clause, which reads:
SEC. 84. Repealing Clause. – All ordinances, rules, regulations in
conflict with the provisions of this Ordinance are hereby repealed;
PROVIDED, That the rights that are vested upon the effectivity of
this Ordinance shall not be impaired.32
7 March 2007 Decision in G.R. No. 156052;
The mayor has the mandatory legal duty to enforce
Ordinance No. 8027 and order the removal of the Pandacan
terminals
On 7 March 2007, the Court granted the petition for mandamus, and
directed then respondent Mayor Atienza to immediately enforce
Ordinance No. 8027.33
Confined to the resolution of the following issues raised by the
petitioners, to wit:
1. whether respondent [Mayor Atienza]has the
mandatory legal duty to enforce Ordinance No.
8027 and order the removal of the Pandacan
Terminals, and
2. whether the June 26, 2002 MOU and the
resolutions ratifying it can amend or repeal
Ordinance No. 8027.34
the Court declared:
x x x [T]he Local Government Code imposes upon respondent the
duty, as city mayor, to "enforce all laws and ordinances relative to
the governance of the city." One of these is Ordinance No. 8027. As
the chief executive of the city, he has the duty to enforce Ordinance
No. 8027 as long as it has not been repealed by the Sanggunian or
annulled by the courts. He has no other choice. It is his ministerial
duty to do so. x x x
xxxx
The question now is whether the MOU entered into by respondent
with the oil companies and the subsequent resolutions passed by the
Sanggunianhave made the respondent’s duty to enforce Ordinance
No. 8027 doubtful, unclear or uncertain. x x x

We need not resolve this issue. Assuming that the terms of the
MOU were inconsistent with Ordinance No. 8027, the resolutions
which ratified it and made it binding on the Cityof Manila expressly
gave it full force and effect only until April 30, 2003. Thus, at
present, there is nothing that legally hinders respondent from
enforcing Ordinance No. 8027.
Ordinance No. 8027 was enacted right after the Philippines, along
with the rest of the world, witnessed the horror of the September 11,
2001 attack on the Twin Towers of the World Trade Center in New
York City. The objective of the ordinance is toprotect the residents
of Manila from the catastrophic devastation that will surely occur in
case of a terrorist attack on the Pandacan Terminals. No reason
exists why such a protective measure should be delayed.35
(Emphasis supplied; citations omitted)
13 February 2008 Resolution in G.R. No. 156052;
Ordinance No. 8027 is constitutional
The oil companies and the Republic of the Philippines, represented
by the DOE, filed their motions for leave to intervene and for
reconsideration of the 7 March 2007 Decision. During the oral
arguments, the parties submitted to the power of the Court torule on
the constitutionality and validity of the assailed Ordinance despite
the pendency of the cases in the RTC.36
On 13 February 2008, the Court granted the motions for leave to
intervene of the oil companies and the Republic of the Philippines
but denied their respective motions for reconsideration. The
dispositive portion of the Resolution reads:
WHEREFORE, x x x
We reiterate our order to respondent Mayor of the City of Manila to
enforce Ordinance No. 8027. In coordination with the appropriate
agencies and other parties involved, respondent Mayor is hereby
ordered to oversee the relocation and transfer of the Pandacan
Terminals out of its present site.37
13 February 2008 Resolution in G.R. No. 156052;
Ordinance No. 8027 was not impliedly repealed
by Ordinance No. 8119
The Court also ruled that Ordinance No. 8027 was not impliedly
repealed by Ordinance No. 8119. On this score, the Court
ratiocinated:
For the first kind of implied repeal, there must be an irreconcilable
conflict between the two ordinances. There is no conflict between
the two ordinances. Ordinance No. 8027 reclassified the Pandacan
area from Industrial II to Commercial I. Ordinance No. 8119,
Section 23, designated it as a "Planned Unit Development/Overlay
Zone (O-PUD)." In its Annex "C" which defined the zone
boundaries, the Pandacan area was shown to be within the "High
Density Residential/Mixed Use Zone (R-3/MXD)." x x x [B]oth
ordinances actually have a common objective, i.e., to shift the
zoning classification from industrial to commercial (Ordinance No.
8027) or mixed residential commercial (Ordinance No. 8119)
xxxx
49
Ordinance No. 8027 is a special law since it deals specifically with
a certain area described therein (the Pandacan oil depot area)
whereas Ordinance No. 8119 can be considered a general law as it
covers the entire city of Manila.
xxxx
x x x The repealing clause of Ordinance No. 8119 cannot be taken
to indicate the legislative intent to repeal all prior inconsistent laws
on the subject matter, including Ordinance No. 8027, a special
enactment, since the aforequoted minutes (an official record of the
discussions in the Sanggunian) actually indicated the clear intent to
preserve the provisions of Ordinance No. 8027.38
Filing of a draft Resolution amending Ordinance No. 8027
effectively allowing
the oil depots to stay in the Pandacan area; Manifestation and
Motion to forestall the passing of the new Ordinance filed in G.R.
No. 156052
On 5 March 2009, respondent then Councilor Arlene W. Koa, filed
with the Sangguniang Panlungsod a draft resolution entitled "An
Ordinance Amending Ordinance No. 8119 Otherwise Known as
‘The Manila Comprehensive Land Use Plan and Zoning Ordinance
of 2006’ by Creating a Medium Industrial Zone (1-2) and Heavy
Industrial Zone (1-3) and Providing for its Enforcement."39 Initially
numbered as Draft Ordinance No. 7177, this was later renumbered
as Ordinance No. 8187, the assailed Ordinance in these instant
petitions.
Considering that the provisions thereof run contrary to Ordinance
No. 8027, the petitioners in G.R. No. 156052 filed a "Manifestation
and Motion to: a) Stop the City Council of Manila from further
hearing the amending ordinance to Ordinance No. 8027; [and] b)
Transfer the monitoring of the enforcement of the Resolution of the
Honorable Court on this case dated 13 February 2008 from Branch
39, Manila Regional Trial Court to the Supreme Court."40
28 April 2009 Resolution in G.R. No. 156052;
Second Motion for Reconsideration denied with finality;
succeeding motions likewise denied or otherwise noted without
action
On 28 April 2009, pending the resolution of the Manifestation and
Motion, the Court denied with finalitythe second motion for
reconsideration dated 27 February 2008 of the oil companies.41
It further ruled that no further pleadings shall be entertained in the
case.42
Succeeding motions were thus deniedand/or noted without action.
And, after the "Very Urgent Motion to Stop the Mayor of the City
of Manila from Signing Draft Ordinance No. 7177 and to Cite Him
for Contempt if He Would Do So" filed on 19 May 2009 was
denied on 2 June 2009 for being moot,43 all pleadings pertaining to
the earlier motion against the drafting of an ordinance to amend
Ordinance No. 8027 were noted without action.44
The Enactment of Ordinance No. 8187
allowing the continued stay of the oil depots

On 14 May 2009, during the incumbency of former Mayor Alfredo
S. Lim (Mayor Lim), who succeeded Mayor Atienza, the
Sangguniang Panlungsod enacted Ordinance No. 8187.45
The new Ordinance repealed, amended, rescinded or otherwise
modified Ordinance No. 8027, Section 23 of Ordinance No. 8119,
and all other Ordinances or provisions inconsistent therewith46
thereby allowing, once again, the operation of "Pollutive/Non-
Hazardous and Pollutive/Hazardous manufacturing and processing
establishments" and "Highly Pollutive/Non-Hazardous[,]
Pollutive/Hazardous[,] Highly Pollutive/Extremely Hazardous[,]
Non-Pollutive/Extremely Hazardous; and Pollutive/Extremely
Hazardous; and Pollutive/Extremely Hazardous manufacturing and
processing establishments" within the newly created Medium
Industrial Zone (1-2) and Heavy Industrial Zone (1-3) in the
Pandacan area.
Thus, where the Industrial Zoneunder Ordinance No. 8119 was
limited to Light Industrial Zone (I-1), Ordinance No. 8187
appended to the list a Medium Industrial Zone (I-2) and a Heavy
Industrial Zone (I-3), where petroleum refineries and oil depots are
now among those expressly allowed.
Hence these petitions.
The Petitions
G.R. No. 187836
To support their petition for prohibition against the enforcement of
Ordinance No. 8187, the petitioner Social Justice Society (SJS)
officers allege that:
1. The enactment of the assailed Ordinance is not
a valid exercise of police power because the
measures provided therein do not promote the
general welfare of the people within the
contemplation of the following provisions of law:
a) Article III, Section 18 (kk)47 of
Republic Act No. 409 otherwise known
as the "Revised Charter of the City of
Manila," which provides that the
Municipal Board shall have the
legislative power to enact all ordinances
it may deem necessary and proper;
b) Section 1648 of Republic Act No.
7160 known as the Local Government
Code, which defines the scope of the
general welfare clause;
2. The conditions at the time the Court declared
Ordinance No. 8027 constitutional in G.R. No.
156052 exist to this date;
3. Despite the finality of the Decision in G.R. No.
156052, and notwithstanding that the conditions
and circumstances warranting the validity of the
50
Ordinance remain the same, the Manila City
Council passed a contrary Ordinance, thereby
refusing to recognize that "judicial decisions
applying or interpreting the laws or the
Constitution form part of the legal system of the
Philippines;"49 and
4. Ordinance No. 8187 is violative of Sections 15
and 16, Article II of the Constitution of the
Philippines on the duty of the State "to protect
and promote the right to health of the people"50
and "protect and advance the right of the people to
a balanced and healthful ecology."51 Petitioners
pray that Ordinance No. 8187 of the City of
Manila be declared null and void, and that
respondent, and all persons acting under him, be
prohibited from enforcing the same.
G.R. No. 187916
The petition for Prohibition, Mandamus and Certiorari with Prayer
for Temporary Restraining Order and/or Injunction against the
enforcement of Ordinance No. 8187 of former Secretary of
Department of Environment and Natural Resources and then Mayor
Atienza, together with other residents and taxpayers of the City of
Manila, also alleges violation of the right to health of the people and
the right to a healthful and balanced environment under Sections 15
and 16 of the Constitution.
Petitioners likewise claim that the Ordinance is in violation of the
following health and environment-related municipal laws, and
international conventions and treaties to which the Philippines is a
state party:
1. Municipal Laws –
(a) Sections 4,52 12,53 1954 and 3055 of
Republic Act No. 8749 otherwise known
as the Philippine Clean Air Act;
(b) Environment Code (Presidential
Decree No. 1152);
(c) Toxic and Hazardous Wastes Law
(Republic Act No. 6969); and
(d) Civil Code provisions on nuisance
and human relations;
2. International Conventions and Treaties to
which the Philippines is a state party –
a. Section 1 of the Universal Declaration
of Human Rights, which states that
"[e]veryone has the right to life, liberty
and security of person;"
b. Articles 6,56 2457 and 2758 of the
Convention on the Rights of the Child,

summarized by the petitioners in the
following manner:
1. the human right to safe and healthy
environment[;]
2. human right to the highest attainable standard
of health[;]
3. the human right to ecologically sustainable
development[;]
4. the human right to an adequate standard of
living, including access to safe food and water[;]
5. the human right of the child to live in an
environment appropriate for physical and mental
development[; and]
6. the human right to full and equal participation
for all persons in environmental decision-making
and development planning, and in shaping
decisions and policies affecting one’s community,
at the local, national and international levels.59
Petitioners likewise posit that the title of Ordinance No. 8187
purports to amend or repeal Ordinance No. 8119 when it actually
intends to repeal Ordinance No. 8027. According to them,
Ordinance No. 8027 was never mentioned in the title and the body
of the new ordinance in violation of Section 26, Article VI of the
1987 Constitution, which provides that every bill passed by
Congress shall embrace only one subject which shall be expressed
in the title thereof.
Also pointed out by the petitioners is a specific procedure outlined
in Ordinance No. 8119 that should be observed when amending the
zoning ordinance. This is provided for under Section 81 thereof,
which reads:
SEC. 81. Amendments to the Zoning Ordinance. The proposed
amendments to the Zoning Ordinance asreviewed and evaluated by
the City Planning and Development Office (CPDO)shall be
submitted to the City Council for approval of the majority of the
Sangguniang Panlungsod members. The amendments shall be
acceptable and eventually approved: PROVIDED, That there is
sufficient evidence and justification for such proposal; PROVIDED
FURTHER,That such proposal is consistent with the development
goals, planning objectives, and strategies of the Manila
Comprehensive Land Use Plan. Said amendments shall take effect
immediately upon approval or after thirty (30) days from
application.
Petitioners thus pray that:
1. upon filing of [the] petition, [the] case be
referred to the Court [E]n Banc, and setting (sic)
the case for oral argument;
51
2. upon the filing of [the] petition, a temporary
restraining order be issued enjoining the
respondents from publishing and posting Manila
City Ordinance No. 8187 and/or posting of
Manila City Ordinance No. 8187; and/or taking
any steps to implementing (sic) and/or enforce the
same and after due hearing, the temporary
restraining order be converted to a permanent
injunction;
3. x x x Manila City Ordinance 8187 [be
declared] as null and void for being repugnant to
the Constitution and existing municipal laws and
international covenants;
4. x x x the respondents [be ordered] to refrain
from enforcing and/or implementing Manila City
Ordinance No. 8187;
5. x x x respondent City Mayor Alfredo S. Lim
[be enjoined] from issuing any permits (business
or otherwise) to all industries whose allowable
uses are anchored under the provisions of Manila
Ordinance No. 8187; and
6. x x x respondent Mayor of Manila Alfredo S.
Lim [be ordered] to comply with the Order of the
Honorable Court in G.R. 156052 dated February
13, 2008.60
The Respondents’ Position on the Consolidated Petitions
Respondent former Mayor Lim
In his Memorandum,61 former Mayor Lim, through the City Legal
Officer, attacks the petitioners’ lack of legal standing to sue. He
likewise points out that the petitioners failed to observe the
principle of hierarchy of courts.
Maintaining that Ordinance No. 8187 is valid and constitutional, he
expounds on the following arguments:
On the procedural issues, he contends that: (1) it is the function of
the Sangguniang Panlungsod to enact zoning ordinances, for which
reason, it may proceed to amend or repeal Ordinance No. 8119
without prior referral to the Manila Zoning Board of Adjustment
and Appeals (MZBAA) as prescribed under Section 80 (Procedure
for Re-Zoning) and the City Planning and Development Office
(CPDO) pursuant to Section 81 (Amendments to the Zoning
Ordinance) of Ordinance No. 8119, especially when the action
actually originated from the Sangguniang Panlungsod itself; (2) the
Sangguniang Panlungsod may, in the later ordinance, expressly
repeal all or part of the zoning ordinance sought to be modified; and
(3) the provision repealing Section 23 of Ordinance No. 8119 is not
violative of Section 26, Article VI of the 1987 Constitution, which
requires that every bill must embrace only one subject and that such
shall be expressed in the title.
On the substantive issues, he posits that the petitions are based on
unfounded fears; that the assailed ordinance is a valid exercise of

police power; that it is consistent with the general welfare clause
and public policy, and is not unreasonable; that it does not run
contrary to the Constitution, municipal laws, and international
conventions; and that the petitioners failed to overcome the
presumption of validity of the assailed ordinance.
Respondents Vice-Mayor Domagoso and the City Councilors who
voted in favor of the assailed ordinance
On 14 September 2012, after the Court gave the respondents several
chances to submit their Memorandum,62 they, through the
Secretary of the Sangguniang Panlungsod, prayed that the Court
dispense with the filing thereof.
In their Comment,63 however, respondents offered a position
essentially similar to those proffered by former Mayor Lim.
The Intervenors’ Position on the Consolidated Petitions
On the other hand, the oil companies sought the outright dismissal
of the petitions based on alleged procedural infirmities, among
others, incomplete requisites of judicial review, violation of the
principle of hierarchy of courts, improper remedy, submission of a
defective verification and certification against forum shopping, and
forum shopping.
As to the substantive issues, they maintain, among others, that the
assailed ordinance is constitutional and valid; that the Sangguniang
Panlalawigan is in the best position to determine the needs of its
constituents; that it is a valid exercise of legislative power; that it
does not violate health and environment-related provisions of the
Constitution, laws, and international conventions and treaties to
which the Philippines is a party; that the oil depots are not likely
targets of terrorists; that the scaling down of the operations in
Pandacan pursuant to the MOU has been followed; and that the
people are safe in view of the safety measures installed in the
Pandacan terminals.
Incidentally, in its Manifestation dated 30 November 2010,64
Petron informed the Court that it will "cease [the] operation of its
petroleum product storage facilities"65 in the Pandacan oil terminal
not later than January 2016 on account of the following:
2.01 Environmental issues, many of which are unfounded,
continually crop up and tarnish the Company’s image.
2.02. The location of its Pandacanterminal is continually threatened,
and made uncertain preventing long-term planning, by the changing
local government composition. Indeed, the relevant zoning
ordinances have been amended three (3) times, and their validity
subjected to litigation.66
Intervening Events
On 28 August 2012, while the Court was awaiting the submission of
the Memorandum of respondents Vice-Mayor Domagoso and the
councilors who voted in favor of the assailed Ordinance, the
Sangguniang Panlungsod, which composition had already
substantially changed, enacted Ordinance No. 828367 entitled "AN
52
ORDINANCE AMENDING SECTION 2 OF ORDINANCE NO.
8187 BY RECLASSIFYING THE AREA WHERE PETROLEUM
REFINERIES AND OIL DEPOTS ARE LOCATED FROM
HEAVY INDUSTRIAL (1-3) TO HIGH INTENSITY
COMMERCIAL/MIXED USE ZONE (C3/MXD).
The new ordinance essentially amended the assailed ordinance to
exclude the area where petroleum refineries and oil depots are
located from the Industrial Zone.
Ordinance No. 8283 thus permits the operation of the industries
operating within the Industrial Zone. However, the oil companies,
whose oil depots are located in the High Intensity
Commercial/Mixed Use Zone (C3/MXD), are given until the end of
January 2016 within which to relocate their terminals.
Former Mayor Lim, who was then the incumbent mayor, did not
support the amendment. Maintaining that the removal of the oil
depots was prejudicial to public welfare, and, on account of the
pending cases in the Supreme Court, he vetoed Ordinance No. 8283
on 11 September 2012.68
On 28 November 2012, former Mayor Lim filed a Manifestation
informing this Court that the Sangguniang Panlungsod voted to
override the veto, and that he, in turn, returned it again with his
veto. He likewise directed the Sangguniang Panlungsod to append
his written reasons for his veto of the Ordinance, so that the same
will be forwarded to the President for his consideration in the event
that his veto is overridden again.69
On 11 December 2012, Shell also filed a similar Manifestation.70
Meanwhile, three days after former Mayor Lim vetoed the new
ordinance, Atty. Luch R. Gempis, Jr. (Atty. Gempis), Secretary of
the Sangguniang Panlungsod, writing on behalf of respondents
Vice-Mayor Domagoso and the City Councilors of Manila who
voted in favor of the assailed Ordinance, finally complied with this
Court’s Resolution dated 17 July 2012 reiterating its earlier
directives71 to submit the said respondents’ Memorandum.
In his Compliance/Explanation with Urgent Manifestation72 dated
13 September 2012, Atty. Gempis explained that it was not his
intention to show disrespect to this Court or to delay or prejudice
the disposition of the cases.
According to him, he signed the Comment prepared by respondents
Vice-Mayor and the City Councilors only to attest that the pleading
was personally signed by the respondents. He clarified that he was
not designated as the legal counsel of the respondents as, in fact, he
was of the impression that, pursuant to Section 481(b)(3) of the
Local Government Code,73 it is the City Legal Officer who
isauthorized to represent the local government unit or any official
thereof in a litigation. It was for the same reason that he thought that
the filing of a Memorandum may already be dispensed with when
the City Legal Officer filed its own on 8 February 2010. He further
explained that the Ordinance subject of these cases was passed
during the 7th Council (2007-2010); that the composition of the 8th
Council (2010-2013) had already changed after the 2010 elections;
and that steps were already taken to amend the ordinance again.
Hence, he was in a dilemma as to the position of the Sangguniang

Panlungsod at the time he received the Court’s Resolution of 31
May 2011.
Atty. Gempis, thus, prayed that the Court dispense with the filing of
the required memorandum in view of the passing of Ordinance No.
8283.
Issue
The petitioners’ arguments are primarily anchored on the ruling of
the Court in G. R. No. 156052 declaring Ordinance No. 8027
constitutional and valid after finding that the presence of the oil
terminals in Pandacan is a threat to the life and security of the
people of Manila. From thence, the petitioners enumerated
constitutional provisions, municipal laws and international treaties
and conventions on health and environment protection allegedly
violated by the enactment of the assailed Ordinance to support their
position.
The resolution of the present controversy is, thus, confined to the
determination of whether or not the enactment of the assailed
Ordinance allowing the continued stay of the oil companies in the
depots is, indeed, invalid and unconstitutional.
Our Ruling
We see no reason why Ordinance No. 8187 should not be stricken
down insofar as the presence of the oil depots in Pandacan is
concerned.
I controversies in their entirety owing to the intricacies of the
We first rule on the procedural issues raised by the respondents and
the oil companies.
At the outset, let it be emphasized that the Court, in G.R. No.
156052, has already pronounced that the matter of whether or not
the oil depots should remain in the Pandacan area is of
transcendental importance to the residents of Manila.74
We may, thus, brush aside procedural infirmities, if any, as we had
in the past, and take cognizance of the cases75 if only to determine
if the acts complained of are no longer within the bounds of the
Constitution and the laws in place.76
Put otherwise, there can be no valid objection to this Court’s
discretion to waive one or some procedural requirements if only to
remove any impediment to address and resolve the serious
constitutional question77 raised in these petitions of transcendental
importance, the same having farreaching implications insofar as the
safety and general welfare of the residents of Manila, and even its
neighboring communities, are concerned.
Proper Remedy
Respondents and intervenors argue that the petitions should be
outrightly dismissed for failure on the part of the petitioners to
properly apply related provisions of the Constitution, the Rules of
53
Court, and/or the Rules of Procedure for Environmental Cases
relative to the appropriate remedy available to them.
To begin with, questioned is the applicability of Rule 6578 of the
Rules of Court to assail the validity and constitutionality of the
Ordinance.
… there is no appeal, or any plain,
speedy, and adequate remedy
in the ordinary course of law…
Rule 65 specifically requires that the remedy may be availed of only
when "there is no appeal, or any plain, speedy, and adequate remedy
in the ordinary course of law."79
Shell argues that the petitioners should have sought recourse before
the first and second level courts under the Rules of Procedure for
Environmental Cases,80 which govern "the enforcement or
violations of environmental and other related laws, rules and
regulations."81 Petron additionally submits that the most adequate
remedy available to petitioners is to have the assailed ordinance
repealed by the Sangguniang Panlungsod. In the alternative, a local
referendum may be had. And, assuming that there were laws
violated, the petitioners may file an action for each alleged violation
of law against the particular individuals that transgressed the law.
It would appear, however, that the remedies identified by the
intervenors prove to be inadequate toresolve the present
circumstances herein prevailing.
The scope of the Rules of Procedure for Environmental Cases is
embodied in Sec. 2, Part I, Rule I thereof. It states that the Rules
shall govern the procedure in civil, criminal and special civil actions
before the Metropolitan Trial Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts and Municipal Circuit Trial Courts,
and the Regional Trial Courts involving enforcement or violations
of environmental and other related laws, rules and regulations such
as but not limited to the following:
(k) R.A. No. 6969, Toxic Substances and
Hazardous Waste Act;
xxxx
(r) R.A. No. 8749, Clean Air Act;
xxxx
(y) Provisions in C.A. No. 141, x x x; and other
existing laws that relate to the conservation,
development, preservation, protection and
utilization of the environment and natural
resources.82 (Emphasis supplied)
Notably, the aforesaid Rules are limited in scope. While, indeed,
there are allegations of violations of environmental laws in the

petitions, these only serve as collateral attacks that would support
the other position of the petitioners – the protection of the rightto
life, security and safety. Moreover, it bears emphasis that the
promulgation of the said Rules was specifically intended to meet the
following objectives:
SEC. 3. Objectives.—The objectives of these Rules are:
(a) To protect and advance the constitutional right
of the people to a balanced and healthful ecology;
(b) To provide a simplified, speedy and
inexpensive procedure for the enforcement of
environmental rights and duties recognized under
the Constitution, existing laws, rules and
regulations, and international agreements;
(c) To introduce and adopt innovations and best
practices ensuring the effective enforcement of
remedies and redress for violation of
environmental laws; and
(d) To enable the courts to monitor and exact
compliance with orders and judgments in
environmental cases.83
Surely, the instant petitions are not within the contemplation of
these Rules.
Relative to the position of Petron, it failed to consider that these
petitions are already a sequel to G.R. No. 156052, and that there are
some issues herein raised that the remedies available at the level of
the Sangguniang Panlungsod could not address. Neither could the
filing of an individual action for each law violated be harmonized
with the essence of a "plain, speedy, and adequate" remedy.
From another perspective, Shell finds fault with the petitioners’
direct recourse to this Court when, pursuant to Section 5, Article
VIII of the Constitution, the Supreme Court exercises only appellate
jurisdiction over cases involving the constitutionality or validity of
an ordinance.84 Thus:
Section 5.The Supreme Court shall have the following powers:
xxxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari,
as the law or the Rules of Court may provide, final judgments and
orders of lower courtsin:
a. All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in
question. (Emphasis supplied)
To further support its position, it cites the case of Liga ng mga
Barangay National v. City Mayor of Manila,85 where the
petitioners sought the nullification of the mayor’s executive order
54
and the council’s ordinance concerning certain functions of the
petitioners that are vested in them by law. There, the Court held:
Second, although the instant petition is styled as a petition for
certiorari, in essence, it seeks the declaration by this Court of the
unconstitutionality or illegality of the questioned ordinance and
executive order. It, thus, partakes of the nature of a petition for
declaratory relief over which this Court has only appellate, not
original, jurisdiction.86 Section 5, Article VIII of the Constitution
provides: x x x
As such, this petition must necessary fail, as this Court does not
have original jurisdiction over a petition for declaratory relief even
if only questions of law are involved.87
Assuming that a petition for declaratory relief is the proper remedy,
and that the petitions should have been filed with the Regional Trial
Court, we have, time and again, resolved to treat such a petition as
one for prohibition, provided that the case has far-reaching
implications and transcendental issues that need to be resolved,88 as
in these present petitions.
On a related issue, we initially found convincing the argument that
the petitions should have been filed with the Regional Trial Court, it
having concurrent jurisdiction with this Court over a special civil
action for prohibition, and original jurisdiction over petitions for
declaratory relief. However, as we have repeatedly said, the
petitions at bar are of transcendental importance warranting a
relaxation of the doctrine of hierarchy of courts.89 In the case of
Jaworski v. PAGCOR,90 the Court ratiocinated:
Granting arguendothat the present action cannot be properly treated
as a petition for prohibition, the transcendental importance of the
issues involved in this case warrants that weset 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. (Emphasis supplied)
…persons aggrieved thereby…
As to who may file a petition for certiorari, prohibition or
mandamus, Petron posits that petitioners are not among the "persons
aggrieved" contemplated under Sections 1 to 3 of Rule 65 of the
Rules of Court.
Chevron argues that petitioners, whether as "citizens," taxpayers,"
or legislators," lack the legal standing toassail the validity and
constitutionality of Ordinance No. 8187. It further claims that
petitioners failed to show that they have suffered any injury and/or
threatened injury as a result of the act complained of.91
Shell also points out that the petitions cannot be considered
taxpayers’ suit, for then, there should be a claim that public funds
were illegally disbursed and that petitioners have sufficient interest
concerning the prevention of illegal expenditure of public money.92
In G.R. No. 187916, Shell maintains that the petitioners failed to

show their personal interest in the case and/or to establish that they
may represent the general sentiments of the constituents of the City
of Manila so as to be treated as a class suit. Even the minors, it
argues, are not numerous and representative enough for the petition
to be treated as a class suit. Asto the city councilors who joined the
petitioners in assailing the validity of Ordinance No. 8187, Shell
posits that they cannot invoke the ruling in Prof. David v. Pres.
Macapagal-Arroyo,93 where the Court held that legislators may
question the constitutionality of a statute, if and when it infringes
upon their prerogatives as legislators, because of the absence of the
allegation that the assailed ordinance indeed infringes upon their
prerogatives.
Former Mayor Lim submitted a similar position supported by a
number of cases on the concept of locus standi,94 the direct injury
test,95 an outline of the stringent requirements of legal standing
when suing as a citizen,96 as a taxpayer,97 as a legislator and in
cases where class suits are filed in behalf of all citizens.98
Their arguments are misplaced.
In G.R. No. 156052, we ruled that the petitioners in that case have a
legal right to seek the enforcement of Ordinance No. 8027 because
the subject of the petition concerns a public right, and they, as
residents of Manila, have a direct interest in the implementation of
the ordinances of the city. Thus:
To support the assertion that petitioners have a clear legal right to
the enforcement of the ordinance, petitioner SJS states that it is a
political party registered with the Commission on Elections and has
its offices in Manila. It claims to have many members who are
residents of Manila. The other petitioners, Cabigao and Tumbokon,
are allegedly residents of Manila.
We need not belabor this point. We have ruled in previous cases
that when a mandamus proceeding concerns a public right and its
object is to compel a public duty, the people who are interested in
the execution of the laws are regarded as the real parties in interest
and they need not show any specific interest. Besides, as residents
of Manila, petitioners have a direct interest in the enforcement of
the city’s ordinances.99 x x x (Citations omitted)
No different are herein petitioners who seek to prohibit the
enforcement of the assailed ordinance, and who deal with the same
subject matter that concerns a public right. Necessarily, the people
who are interested in the nullification of such an ordinance are
themselves the real parties in interest, for which reason, they are no
longer required to show any specific interest therein. Moreover, it is
worth mentioning that SJS, now represented by SJS Officer
Alcantara, has been recognized by the Court in G.R. No. 156052 to
have legal standing to sue in connection with the same subject
matter herein considered. The rest of the petitioners are residents of
Manila. Hence, all of them have a direct interest in the prohibition
proceedings against the enforcement of the assailed ordinance.
In the case of Initiatives for Dialogue and Empowerment through
Alternative Legal Services, Inc. (IDEALS, INC.) v. Power Sector
Assets and Liabilities Management Corporation (PSALM),100
involving a petition for certiorari and prohibition to permanently
enjoin PSALM from selling the Angat Hydro-Electric Power Plant
55
(AHEPP) to Korea Water Resources Corporation (K-Water), the
Court ruled:
"Legal standing" or locus standihas been defined 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 governmental act that is
being challenged, alleging more than a generalized grievance. x x x
This Court, however, has adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to craft anissue of
transcendental significance to the people, as when the issues raised
are of paramount importance to the public. Thus, when the
proceeding involves the assertion of a public right, the mere fact
that the petitioner is a citizen satisfies the requirement of personal
interest.
There can be no doubt that the matter of ensuring adequate water
supply for domestic use is one of paramount importance to the
public. That the continued availability of potable water in Metro
Manila might be compromised if PSALM proceeds with the
privatization of the hydroelectric power plant in the Angat Dam
Complex confers upon petitioners such personal stake in the
resolution of legal issues in a petition to stop its implementation.101
(Emphasis supplied; citations omitted)
In like manner, the preservation of the life, security and safety of
the people is indisputably a right of utmost importance to the public.
Certainly, the petitioners, as residents of Manila, have the required
personal interest to seek relief from this Court to protect such right.
… in excess of its or his jurisdiction,
or with grave abuse of discretion
amounting to lack or excess of jurisdiction…
Petron takes issue with the alleged failure of the petitioners to
establish the facts with certainty that would show that the acts of the
respondents fall within the parameters of the grave abuse of
discretion clause settled by jurisprudence, to wit:
x x x "[G]rave abuse of discretion" means such capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be grave as where the
power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility and must be so patent and gross asto
amount to an evasion of positive duty or to a virtual refusal to
perform the duty enjoined by or to act all in contemplation of
law.102
It is pointless to discuss the matter at length in these instant cases of
transcendental importance in view of the Court’s pronouncement, in
Magallona v. Ermita.103 There it held that the writs of certiorariand
prohibition are proper remedies to test the constitutionality of
statutes, notwithstanding the following defects:
In praying for the dismissal of the petition on preliminary grounds,
respondents seek a strict observance of the offices of the writs of
certiorari and prohibition, noting that the writs cannot issue
absent any showing of grave abuse of discretion in the exercise
of judicial, quasi-judicial or ministerial powers on the part of
respondents and resulting prejudice on the part of petitioners.

Respondents’ submission holds true in ordinary civil proceedings.
When this Court exercises its constitutional power of judicial
review, however, we have, by tradition, viewed the writs of
certiorariand prohibition as proper remedial vehicles to test the
constitutionality of statutes, and indeed, of acts of other
branches of government. Issues of constitutional importx x x
carry such relevance in the life of this nation that the Court
inevitably finds itself constrained to take cognizance of the case
and pass upon the issues raised, noncompliance with the letter
of procedural rules notwithstanding. The statute sought to be
reviewed here is one such law.104 (Emphasis supplied; citations
omitted)
Requisites of judicial review
For a valid exercise of the power of judicial review, the following
requisites shall concur: (1) the existence of a legal controversy; (2)
legal standing to sue of the party raising the constitutional question;
(3) a plea that judicial review be exercised at the earliest
opportunity; and (4) the constitutional question is the lis mota of the
case.105
Only the first two requisites are put in issue in these cases.
On the matter of the existence of a legal controversy, we reject the
contention that the petitions consist of bare allegations based on
speculations, surmises, conjectures and hypothetical grounds.
The Court declared Ordinance No. 8027 valid and constitutional
and ordered its implementation. Withthe passing of the new
ordinance containing the contrary provisions, it cannot be any
clearer that here lies an actual case or controversy for judicial
review. The allegation on this, alone, is sufficient for the purpose.
The second requisite has already been exhaustively discussed.
Proof of identification required in the notarization
of the verification and certification against forum
shopping in G.R. No. 187916
At the bottom of the Verification and Certification against Forum
Shopping of the petition in G.R. No. 187916 is the statement of the
notary public to the effect that the affiant, in his presence and after
presenting "an integrally competent proof of identification with
signature and photograph,"106 signed the document under oath.
Citing Sec. 163 of the Local Government Code,107 which provides
that an individual acknowledging any document before a notary
public shall present his Community Tax Certificate (CTC), Chevron
posits that the petitioner’s failure to present his CTC rendered the
petition fatally defective warranting the outright dismissal of the
petition.
We disagree.
The verification and certification against forum shopping are
governed specifically by Sections 4 and 5,Rule 7 of the Rules of
Court.
56
Section 4 provides that a pleading, when required to be verified,
shall be treated as an unsigned pleading if it lacks a proper
verification while Section 5 requires that the certification to be
executed by the plaintiff or principal party be under oath.
These sections, in turn, should be read together with Sections 6 and
12, Rule 2 of the 2004 Rules on Notarial Practice.
Section 6108 of the latter Rules, specifically, likewise provides that
any competent evidence of identity specified under Section 12
thereof may now be presented before the notary public, to wit:
SEC. 12. Competent Evidence of Identity. - The phrase "competent
evidence of identity" refers to the identification of an individual
based on:
(a) at least one current identification
document issued by an official agency
bearing the photograph and signature of
the individual, such as but not limited to
passport, driver’s license, Professional
Regulations Commission ID, National
Bureau of Investigation clearance, police
clearance, postal ID, voter’s ID,
Barangay certification, Government
Service and Insurance System (GSIS) e-
card, Social Security System (SSS) card,
Philhealth card, senior citizen card,
Overseas Workers Welfare
Administration (OWWA) ID, OFW ID,
seaman’s book, alien certificate of
registration/immigrant certificate of
registration, government office ID,
certification from the National Council
for the Welfare of Disable Persons
(NCWDP), Department of Social
Welfare and Development (DSWD)
certification; or
(b) x x x.109
Forum shopping
Shell contends that the petitioners in G.R. No. 187836 violated the
rule against forum shopping allegedly because all the elements
thereof are present in relation to G.R. No. 156052, to wit:
1. "identity of parties, or at least such parties who
represent the same interests in both actions" –
According to Shell, the interest of petitioner SJS
in G.R. No. 156052 and the officers of SJS in
G.R. No. 187836 are clearly the same. Moreover,
both actions implead the incumbent mayor of the
City of Manila as respondent. Both then
respondent Mayor Atienza in G.R. No. 156052
and respondent former Mayor Lim in G.R. No.
187836 are sued in their capacity as Manila
mayor.

2. "identity of rights asserted and relief prayed
for, the relief being founded on the same fact(s)"
– Shell contends that, in both actions, petitioners
assert the same rights to health and to a balanced
and healthful ecology relative to the fate of the
Pandacan terminal, and seek essentially the same
reliefs, that is, the removal of the oil depots from
the present site.
3. "the identity of the two preceding particulars is
such that any judgment rendered in the pending
case, regardless of which party is successful,
would amount to res judicata in the other" –
Relative to the filing of the Manifestation and
Motion to: a) Stop the City Council of Manila
from further hearing the amending ordinance to
Ordinance No. 8027 x x x (Manifestation and
Motion) and Very Urgent Motion to Stop the
Mayor of the City of Manila from Signing Draft
Ordinance No. 7177 [now Ordinance No. 8187]
and to Cite Him for Contempt if He Would Do So
(Urgent Motion) both in G.R. No. 156052, Shell
points out the possibility that the Court would
have rendered conflicting rulings "on cases
involving the same facts, parties, issues and
reliefs prayed for."110
We are not persuaded.
In Spouses Cruz v. Spouses Caraos,111 the Court expounded on the
nature of forum shopping. Thus:
Forum shopping is an act of a party, against whom an adverse
judgment or order has been rendered in one forum, of seeking and
possibly getting a favorable opinion in another forum, other than by
appeal or special civil action for certiorari. It may also be the
institution of two or more actions or proceedings grounded on the
same cause on the supposition that one or the other court would
make a favorable disposition. The established rule is that for forum
shopping to exist, both actions must involve the same transactions,
same essential facts and circumstances and must raise identical
causes of actions, subject matter, and issues. x x x112 (Citations
omitted) It bears to stress that the present petitions were initially
filed, not to secure a judgment adverse to the first decision, but,
precisely, to enforce the earlier ruling to relocate the oil depots from
the Pandacan area.
As to the matter of the denial of the petitioners’ Manifestation and
Urgent Motion in G.R. No. 156052, which wereboth incidental to
the enforcement of the decision favorable to them brought about by
the intervening events after the judgment had become final and
executory, and which involve the same Ordinance assailed in these
petitions, we so hold that the filing of the instant petitions is not
barred by res judicata.
In the same case of Spouses Cruz v. Spouses Caraos involving the
refiling of a complaint, which had been earlier dismissed without
qualification that the dismissal was with prejudice, and which had
not been decided on the merits, the Court declared that such re-
filing did not amount to forum shopping. It ratiocinated:
57
It is not controverted that the allegations of the respective
complaints in both Civil Case No. 95-1387 and Civil Case No. 96-
0225 are similarly worded, and are identical in all relevant details,
including typographical errors, except for the additional allegations
in support of respondents’ prayer for the issuance of preliminary
injunction in Civil Case No. 95-1387. It is similarly not disputed
that both actions involve the same transactions; same essential facts
and circumstances; and raise identical causes of actions, subject
matter, and issues.
xxxx
x x x The dismissal of Civil Case No. 95-1387 was without
prejudice. Indeed, the Order dated 20 November 1995, dismissing
Civil Case No. 95-1387 was an unqualified dismissal. More
significantly, its dismissal was not based on grounds under
paragraphs (f), (h), and (i) of Section 1 of Rule 16 of the Rules of
Court, which dismissal shall bar the refiling of the same action or
claim as crystallized in Section 5 of Rule 16 thereof, thus:
SEC. 5. Effect of dismissal. – Subject to the right of appeal, an
order granting a motion to dismiss based on paragraphs (f), (h), and
(i) of section 1 hereof shall bar the refiling of the same action or
claim.
From the foregoing, it is clear that dismissals under paragraphs (f),
(h), and (i) of Section 1 of Rule 16 of the Rules of Court constitute
res judicata, to wit:
(f) That the cause of action isbarred by a prior judgment or by the
statute of limitations;
xxxx
(h) That the claim or demand set forth in the plaintiff’s pleading has
been paid, waived, abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable
under the provisions of the statute of frauds.
Res judicata or bar by prior judgmentis a doctrine which holds that
a matter that has been adjudicated by a court of competent
jurisdiction must be deemed to have been finally and conclusively
settled if it arises in any subsequent litigation between the same
parties and for the same cause. Res judicata exists when the
following elements are present: (a) the former judgment must be
final; (b) the court which rendered judgment had jurisdiction over
the parties and the subject matter; (3)it must be a judgment on the
merits; and (d) and there must be, between the first and second
actions, identity ofparties, subject matter, and cause of action.113
(Emphasis supplied; citations omitted)
Here, it should be noted that this Court denied the said
Manifestation and Urgent Motion, and refused to act on the
succeeding pleadings, for being moot.114 Clearly, the merits of the
motion were not considered by the Court. The following
disquisition of the Court in Spouses Cruz v. Spouses Caraosis
further enlightening:

The judgment of dismissal in Civil Case No. 95-1387 does not
constitute res judicata to sufficiently bar the refiling thereof in Civil
Case No. 96-0225. As earlier underscored, the dismissal was one
without prejudice. Verily, it was not a judgment on the merits. It
bears reiterating that a judgment on the merits is one rendered after
a determination of which party is right, as distinguished from a
judgment rendered upon some preliminary or formal or merely
technical point. The dismissal of the case without prejudice
indicates the absence of a decision on the merits and leaves the
parties free to litigate the matter in a subsequent action asthough the
dismissed action had not been commenced.115 (Emphasis supplied;
citations omitted)
Considering that there is definitely no forum shopping in the instant
cases, we need not discuss in detail the elements of forum shopping.
II
The Local Government Code of 1991 expressly provides that the
Sangguniang Panlungsod is vested with the power to "reclassify
land within the jurisdiction of the city"116 subject to the pertinent
provisions of the Code. It is also settled that an ordinance may be
modified or repealed by another ordinance.117 These have been
properly applied in G.R. No. 156052, where the Court upheld the
position of the Sangguniang Panlungsod to reclassify the land
subject of the Ordinance,118 and declared that the mayor has the
duty to enforce Ordinance No. 8027, provided that it has not been
repealed by the Sangguniang Panlungsod or otherwise annulled by
the courts.119 In the same case, the Court also used the principle
that the Sanguniang Panlungsod is in the best position to determine
the needs of its Constituents120 – that the removal of the oil depots
from the Pandacan area is necessary "to protect the residents of
Manila from catastrophic devastation in case of a terrorist attack on
the Pandacan Terminals."121
Do all these principles equally apply to the cases at bar involving
the same subject matter to justify the contrary provisions of the
assailed Ordinance?
We answer in the negative.
We summarize the position of the Sangguniang Panlungsodon the
matter subject of these petitions. In 2001, the Sanggunian found the
relocation of the Pandacan oil depots necessary. Hence, the
enactment of Ordinance No. 8027.
In 2009, when the composition of the Sanggunian had already
changed, Ordinance No. 8187 was passed in favor of the retention
of the oil depots. In 2012, again when some of the previous
members were no longer re-elected, but with the Vice-Mayor still
holding the same seat, and pending the resolution of these petitions,
Ordinance No. 8283 was enacted to give the oil depots until the end
of January 2016 within which to transfer to another site. Former
Mayor Lim stood his groundand vetoed the last ordinance.
In its Comment, the 7th Council (2007-2010) alleged that the
assailed Ordinance was enacted to alleviate the economic condition
of its constituents.122
58
Expressing the same position, former Mayor Lim even went to the
extent of detailing the steps123 he took prior to the signing of the
Ordinance, if only to show his honest intention to make the right
decision.
The fact remains, however, that notwithstanding that the conditions
with respect to the operations of the oil depots existing prior to the
enactment of Ordinance No. 8027 do not substantially differ to this
day, as would later be discussed, the position of the Sangguniang
Panlungsod on the matter has thrice changed, largely depending on
the new composition of the council and/or political affiliations. The
foregoing, thus, shows that its determination of the "general
welfare" of the city does not after all gear towards the protection of
the people in its true sense and meaning, but is, one way or another,
dependent on the personal preference of the members who sit in the
council as to which particular sector among its constituents it
wishes to favor.
Now that the City of Manila, through the mayor and the city
councilors, has changed its view on the matter, favoring the city’s
economic related benefits, through the continued stay of the oil
terminals, over the protection of the very lives and safety of its
constituents, it is imperative for this Court to make a final
determination on the basis of the facts on the table as to which
specific right of the inhabitants of Manila should prevail. For, in
this present controversy, history reveals that there is truly no such
thing as "the will of Manila" insofar as the general welfare of the
people is concerned.
If in sacrilege, in free translation of Angara124 by Justice Laurel,
we say when the judiciary mediates we do notin reality nullify or
invalidate an act of the Manila Sangguniang Panlungsod, but only
asserts the solemn and sacred obligation assigned to the Court 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.
III
The measures taken by the intervenors to lend support to their
position that Manila is now safe despite the presence of the oil
terminals remain ineffective. These have not completely removed
the threat to the lives of the in habitants of Manila.
In G.R. No. 156052, the validity and constitutionality of Ordinance
No. 8027 was declared as a guarantee for the protection of the
constitutional right to life of the residents of Manila. There, the
Court said that the enactment of the said ordinance was a valid
exercise of police power with the concurrence of the two requisites:
a lawful subject – "to safeguard the rights to life, security and safety
of all the inhabitants of Manila;"125 and a lawful method – the
enactment of Ordinance No. 8027 reclassifying the land use from
industrial to commercial, which effectively ends the continued stay
of the oil depots in Pandacan.126
In the present petitions, the respondents and the oil companies plead
that the Pandacan Terminal has never been one of the targets of
terrorist attacks;127 that the petitions were based on unfounded
fears and mere conjectures;128 and that the possibility that it would

be picked by the terrorists is nil given the security measures
installed thereat.129
The intervenors went on to identify the measures taken to ensure the
safety of the people even with the presence of the Pandacan
Terminals. Thus:
1. Chevron claims that it, together with Shell and
Petron, continues to enhance the safety and
security features of the terminals. They likewise
adopt fire and product spill prevention measures
in accordance with the local standards set by the
Bureau of Fire Protection, among others, and with
the international standards of the American
Petroleum Industry ("API") and the National Fire
Prevention and Safety Association ("NFPSA");
that since 1914, the oil depots had not
experienced "any incident beyond the ordinary
risks and expectations"130 of the residents of
Manila; and that it received a passing grade on the
safety measures they installed in the facilities
from the representatives of the City of Manila
who conducted an ocular inspection on 22 May
2009; and
2. Referring to the old MOU entered into between
the City of Manila and the DOE, on the one hand,
and the oil companies, on the other, where the
parties thereto conceded and acknowledged that
the scale-down option for the Pandacan Terminal
operations is the best alternative to the relocation
of the terminals, Shell enumeratesthe steps taken
to scale down its operations.
As to the number of main fuel tanks, the entire Pandacan Terminal
has already decommissioned twenty-eight out of sixty-four tanks.
Speaking for Shell alone, its LPG Spheres, which it claims is the
only product that may cause explosion, was part of those
decommissioned, thereby allegedly removing the danger of
explosion. Safety buffer zones and linear/green parks were likewise
created to separate the terminal from the nearest residential area.
Shell’s portion of the oil depot is likewise allegedly equipped with
the latest technology to ensure air-quality control and waterquality
control, and to prevent and cope with possible oil spills with a crisis
management plan in place in the event that an oil spill occurs.
Finally, Shell claims that the recommendations of EQE
International in its Quantitative Risk Assessment (QRA) study,
which it says is one of the leading independent risk assessment
providers in the world and largest risk management consultancy,
were sufficiently complied with; and that, on its own initiative, it
adopted additional measures for the purpose, for which reason, "the
individual risk level resulting from any incident occurring from the
Pandacan Terminal, per the QRA study, is twenty (20) times lower
compared to the individual risk level of an average working or
domestic environment."131
We are not persuaded.
The issue of whether or not the Pandacan Terminal is not a likely
target of terrorist attacks has already been passed upon in G. R. No.
59
156052. Based on the assessment of the Committee on Housing,
Resettlement and Urban Development of the City of Manila and the
then position of the Sangguniang Panlungsod,132 the Court was
convinced that the threat of terrorism is imminent. It remains so
convinced.
Even assuming that the respondents and intervenors were correct,
the very nature of the depots where millions of liters of highly
flammable and highly volatile products, regardless of whether ornot
the composition may cause explosions, has no place in a densely
populated area. Surely, any untoward incident in the oil depots, beit
related to terrorism of whatever origin or otherwise, would
definitely cause not only destruction to properties within and among
the neighboring communities but certainly mass deaths and injuries.
With regard to the scaling down of the operations in the Pandacan
Terminals, which the oil companies continue to insist to have been
validated and recognized by the MOU, the Court,in G.R. No.
156052, has already put this issue to rest. It specifically declared
that even assuming that the terms of the MOU and Ordinance No.
8027 were inconsistent, the resolutions ratifying the MOU gave it
full force and effect only until 30 April 2003.133
The steps taken by the oil companies, therefore, remain insufficient
to convince the Court that the dangers posed by the presence of the
terminals in a thickly populated area have already been completely
removed.
For, given that the threat sought to be prevented may strike at one
point or another, no matter how remote it is as perceived by one or
some, we cannot allow the right to life to bedependent on the
unlikelihood of an event. Statistics and theories of probability have
no place in situations where the very life of not just an individual
but of residents of big neighborhoods is at stake.
IV
It is the removal of the danger to life not the mere subdual of risk of
catastrophe, that we saw in and made us favor Ordinance No. 8027.
That reason, unaffected by Ordinance No. 8187, compels the
affirmance of our Decision in G.R. No. 156052.
In striking down the contrary provisions of the assailed Ordinance
relative to the continued stay of the oil depots, we follow the same
line of reasoning used in G.R. No. 156052, to wit: Ordinance No.
8027 was enacted "for the purpose of promoting sound urban
planning, ensuring health, public safety and general welfare" of the
residents of Manila. The Sanggunian was impelled to take measures
to protect the residents of Manila from catastrophic devastation in
case of a terrorist attack on the Pandacan Terminals. Towards this
objective, the Sanggunian reclassified the area defined in the
ordinance from industrial to commercial.
The following facts were found by the Committee on Housing,
Resettlement and Urban Development of the City of Manila which
recommended the approval of the ordinance:
(1) the depot facilities contained 313.5 million
liters of highly flammable and highly volatile
products which include petroleum gas, liquefied

petroleum gas, aviation fuel, diesel, gasoline,
kerosene and fuel oil among others;
(2) the depot is open to attack through land, water
or air;
(3) it is situated in a densely populated place and
near Malacañang Palace; and
(4) in case of an explosion or conflagration in the
depot, the fire could spread to the neighboring
communities.
The ordinance was intended to safeguard the rights to life, security
and safety of all the inhabitants of Manila and not just of a
particular class. The depot is perceived, rightly or wrongly, as a
representation of western interests which means that it is a terrorist
target. As long as it (sic) there is such a target in their midst, the
residents of Manila are not safe. It therefore became necessary to
remove these terminals to dissipate the threat. According to
respondent:
Such a public need became apparent after the 9/11 incident which
showed that what was perceived to be impossible to happen, to the
most powerful country in the world at that, is actually possible. The
destruction of property and the loss of thousands of lives on that
fateful day became the impetus for a public need. Inthe aftermath of
the 9/11 tragedy, the threats of terrorism continued [such] that it
became imperative for governments to take measures to combat
their effects.
xxxx
Both law and jurisprudence support the constitutionality and
validity of Ordinance No. 8027. Without a doubt, there are no
impediments to its enforcement and implementation. Any delay is
unfair to the inhabitants of the City of Manila and its leaders who
have categorically expressed their desire for the relocation of the
terminals. Their power to chart and control their own destiny and
preserve their lives and safety should not be curtailed by the
intervenors’ warnings of doomsday scenarios and threats of
economic disorder if the ordinance is enforced.134
The same best interest of the public guides the present decision. The
Pandacan oil depot remains a terrorist target even if the contents
have been lessened. In the absence of any convincing reason to
persuade this Court that the life, security and safety of the
inhabitants of Manila are no longer put at risk by the presence of the
oil depots, we hold that Ordinance No. 8187 in relation to the
Pandacan Terminals is invalid and unconstitutional.
There is, therefore, no need to resolve the rest of the issues.
Neither is it necessary to discuss at length the test of police power
against the assailed ordinance. Suffice it to state that the objective
adopted by the Sangguniang Panlungsod to promote the
constituents’ general welfare in terms of economic benefits cannot
override the very basic rights to life, security and safety of the
people.
60
In. G.R. No. 156052, the Court explained:
Essentially, the oil companies are fighting for their right to property.
They allege that they stand tolose billions of pesos if forced to
relocate. However, based on the hierarchy of constitutionally
protected rights, the right to life enjoys precedence over the right to
property. The reason is obvious: life is irreplaceable, property is not.
When the state or LGU’s exercise of police power clashes with a
few individuals’ right to property, the former should prevail.135
We thus conclude with the very final words in G.R. No. 156052:
On Wednesday, January 23, 2008, a defective tanker containing
2,000 liters of gasoline and 14,000 liters of diesel exploded in the
middle of the street a short distance from the exit gate of the
Pandacan Terminals, causing death, extensive damage and a
frightening conflagration in the vicinity of the incident. Need we
say anthing about what will happen if it is the estimated 162 to 211
million liters [or whatever is left of the 26 tanks] of petroleum
products in the terminal complex will blow up?136
V
As in the prequel case, we note that as early as October 2001, the oil
companies signed a MOA with the DOE obliging themselves to:
... undertake a comprehensive and comparative study ... [which]
shall include the preparation ofa Master Plan, whose aim is to
determine the scope and timing of the feasible location of the
Pandacan oil terminals and all associated facilities and
infrastructure including government support essential for the
relocation such as the necessary transportation infrastructure, land
and right of way acquisition, resettlement of displaced residents and
environmental and social acceptability which shall be based on
mutual benefit of the Parties and the public.
such that:
Now that they are being compelled to discontinue their operations
in the Pandacan Terminals, they cannot feign unreadiness
considering that they had years to prepare for this eventuality.137
On the matter of the details of the relocation, the Court gave the oil
companies the following time frames for compliance:
To ensure the orderly transfer, movement and relocation of assets
and personnel, the intervenors Chevron Philippines Inc., Petron
Corporation and Pilipinas Shell Petroleum Corporation shall, within
a nonextendible period of ninety (90) days, submit to the Regional
Trial Court of Manila, Branch 39, the comprehensive plan and
relocation schedule which have allegedly been prepared. The
presiding judge of Manila RTC, Branch 39 will monitor the strict
enforcement of this resolution.138
The periods were given in the Decision in G.R. No. 156052 which
became final on 23 April 2009. Five years have passed, since then.
The years of non-compliance may be excused by the swing of local
legislative leads. We now stay the sway and begin a final count.

A comprehensive and well-coordinated plan within a specific
timeframe shall, therefore, be observed in the relocation of the
Pandacan Terminals. The oil companies shall begiven a fresh non-
extendible period of forty-five (45) days from notice within which
to submit to the Regional Trial Court, Branch 39, Manila an
updated comprehensive plan and relocation schedule. The
relocation, inturn, shall be completed not later than six months from
the date of their submission. Finally, let it be underscored that after
the last Manifestation filed by Shell informing this Court that
respondent former Mayor Lim vetoed Ordinance No. 8283 for the
second time, and was anticipating its referral to the President for the
latter’s consideration, nothing was heard from any of the parties
until the present petitions as to the status of the approval or
disapproval of the said ordinance. As it is, the fate of the Pandacan
Terminals remains dependent on this final disposition of these
cases.
VI
On the matter of the failure of Atty. Gempis to immediately comply
with the directives of this Court to file the Memorandum for the
Vice-Mayor and the city councilors who voted in favor of the
assailed Ordinance, the records do not bear proof that he received a
copy of any of the resolutions pertaining to the filing of the
Memorandum.
A narration of the events from his end would show, however, that
he was aware of the directive issued in 2009 when he stated that
"when the City Legal Officer filed its Memorandum dated 8
February 2010, [he] thought the filing of a Memorandum for the
other respondent city officials could be dispensed with."139 There
was also a categorical admission that he received the later
Resolution of 31 May 2011 but that he could not prepare a
Memorandum defending the position of respondents vice-mayor
and the city councilors who voted in favor of Ordinance No. 8187 in
view of the ongoing drafting of Ordinance No. 8283, which would
change the position of the Sanggunian, if subsequently approved.
The reasons he submitted are not impressed with merit.
That he was not officially designated as the counsel for the
vicemayor and the city councilors is beside the point. As an officer
of the court, he cannot feign ignorance of the fact that"a resolution
of this Court is not a mere request but an order which should be
complied with promptly and completely."140 As early as 2009, he
should have immediately responded and filed a Manifestation and
therein set forth his reasons why he cannot represent the vice-mayor
and the city councilors. And, even assuming that the 31 May 2011
Resolution was the first directive he personally received, he had no
valid excuse for disregarding the same. Worse, the Court had to
issue a show cause order before he finally heeded.
Atty. Gempis should "strive harder to live up to his duties of
observing and maintaining the respect due to the courts, respect for
law and for legal processes and of upholding the integrity and
dignity of the legal profession in order to perform his
responsibilities asa lawyer effectively."141
In Sibulo v. Ilagan,142 which involves a lawyer’s repeated failure
to comply with the directives of the Court, the penalty
61
recommended by the Integrated Bar of the Philippines was reduced
from suspension to reprimand and a warning. The Court
ratiocinated:
Considering, however, that respondent was absolved of the
administrative charge against him and is being taken to task for his
intransigence and lack of respect, the Court finds that the penalty of
suspension would not be warranted under the circumstances.
xxxx
To the Court’s mind, a reprimand and a warning are sufficient
sanctions for respondent’s disrespectful actuations directed against
the Court and the IBP. The imposition of these sanctions in the
present case would be more consistent with the avowed purpose of
disciplinary case, which is "not so much to punish the individual
attorney as to protect the dispensation of justice by sheltering the
judiciary and the public from the misconduct or inefficiency of
officers of the court."143
We consider the participation of Atty. Gempis in this case and opt
to be lenient even as we reiterate the objective of protecting the
dispensation of justice. We deem it sufficient to remind Atty.
Gempis to be more mindful of his duty as a lawyer towards the
Court.
WHEREFORE, in light of all the foregoing, Ordinance No. 8187 is
hereby declared UNCONSTITUTIONAL and INVALID with
respect to the continued stay of the Pandacan Oil Terminals.
The incumbent mayor of the City of Manila is hereby ordered to
CEASE and DESIST from enforcing Ordinance No. 8187. In
coordination with the appropriate government agencies and the
parties herein involved, he is further ordered to oversee the
relocation and transfer of the oil terminals out of the Pandacan area.
As likewise required in G.R. No. 156052, the intervenors Chevron
Philippines, Inc., Pilipinas Shell Petroleum Corporation, and Petron
Corporation shall, within a non-extendible period of forty-five (45)
days, submit to the Regional Trial Court, Branch 39, Manila an
updated comprehensive plan and relocation schedule, which
relocation shall be completed not later than six (6) months from the
date the required documents are submitted. The presiding judge of
Branch 39 shall monitor the strict enforcement of this Decision.
For failure to observe the respect due to the Court, Atty. Luch R.
Gempis, Jr., Secretary of the Sangguniang Panlungsod, is
REMINDED of his duties towards the Court and WARNED that a
repetition of an act similar to that here committed shall be dealt with
more severely.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
 62

MARIA LOURDES P.A. SERENO

Chief Justice

PRESBITERO J.
ANTONIO T. CARPIO
VELASCO, JR.
Associate Justice
Associate Justice
TERESITA J. LEONARDO-DE (On leave)
CASTRO ARTURO D. BRION*
Associate Justice Associate Justice
DIOSDADO M. PERALTA LUCAS P. BERSAMIN
Associate Justice Associate Justice
MARTIN S. VILLARAMA,
MARIANO C. DEL CASTILLO
JR.
Associate Justice
Associate Justice
JOSE CATRAL MENDOZA BIENVENIDO L. REYES
Associate Justice Associate Justice
ESTELA M. PERLAS-
MARVIC M.V.F. LEONEN
BERNABE
Associate Justice
Associate Justice

Associate Justice Associate Justice

FRANCIS H. JARDELEZA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify

that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the
opinion of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 177807 October 11, 2011
EMILIO GANCAYCO, Petitioner,
vs.
CITY GOVERNMENT OF QUEZON CITY AND METRO
MANILA DEVELOPMENT AUTHORITY, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 177933
METRO MANILA DEVELOPMENT AUTHORITY, Petitioner,
vs.
JUSTICE EMILIO A. GANCAYCO (Retired), Respondent,
DECISION
SERENO, J.:
Before us are consolidated Petitions for Review under Rule 45 of
the Rules of Court assailing the Decision1 promulgated on 18 July
2006 and the Resolution2 dated 10 May 2007 of the Court of
Appeals in CA-G.R. SP No. 84648.
The Facts
In the early 1950s, retired Justice Emilio A. Gancayco bought a
parcel of land located at 746 Epifanio delos Santos Avenue
(EDSA),3 Quezon City with an area of 375 square meters and
covered by Transfer Certificate of Title (TCT) No. RT114558.
On 27 March 1956, the Quezon City Council issued Ordinance No.
2904, entitled "An Ordinance Requiring the Construction of
Arcades, for Commercial Buildings to be Constructed in Zones
Designated as Business Zones in the Zoning Plan of Quezon City,
and Providing Penalties in Violation Thereof." 4
An arcade is defined as any portion of a building above the first
floor projecting over the sidewalk beyond the first storey wall used
as protection for pedestrians against rain or sun.5
Ordinance No. 2904 required the relevant property owner to
construct an arcade with a width of 4.50 meters and height of 5.00
meters along EDSA, from the north side of Santolan Road to one lot
after Liberty Avenue, and from one lot before Central Boulevard to
the Botocan transmission line.
At the outset, it bears emphasis that at the time Ordinance No. 2904
was passed by the city council, there was yet no building code
passed by the national legislature. Thus, the regulation of the
construction of buildings was left to the discretion of local
government units. Under this particular ordinance, the city council
63
required that the arcade is to be created by constructing the wall of
the ground floor facing the sidewalk a few meters away from the
property line. Thus, the building owner is not allowed to construct
his wall up to the edge of the property line, thereby creating a space
or shelter under the first floor. In effect, property owners relinquish
the use of the space for use as an arcade for pedestrians, instead of
using it for their own purposes.
The ordinance was amended several times. On 8 August 1960,
properties located at the Quezon City-San Juan boundary were
exempted by Ordinance No. 60-4477 from the construction of
arcades. This ordinance was further amended by Ordinance No. 60-
4513, extending the exemption to commercial buildings from Balete
Street to Seattle Street. Ordinance No. 6603 dated 1 March 1966
meanwhile reduced the width of the arcades to three meters for
buildings along V. Luna Road, Central District, Quezon City.
The ordinance covered the property of Justice Gancayco.
Subsequently, sometime in 1965, Justice Gancayco sought the
exemption of a two-storey building being constructed on his
property from the application of Ordinance No. 2904 that he be
exempted from constructing an arcade on his property.
On 2 February 1966, the City Council acted favorably on Justice
Gancayco’s request and issued Resolution No. 7161, S-66, "subject
to the condition that upon notice by the City Engineer, the owner
shall, within reasonable time, demolish the enclosure of said arcade
at his own expense when public interest so demands." 6
Decades after, in March 2003, the Metropolitan Manila
Development Authority (MMDA) conducted operations to clear
obstructions along the sidewalk of EDSA in Quezon City pursuant
to Metro Manila Council’s (MMC) Resolution No. 02-28, Series of
2002.7 The resolution authorized the MMDA and local government
units to "clear the sidewalks, streets, avenues, alleys, bridges, parks
and other public places in Metro Manila of all illegal structures and
obstructions."8
On 28 April 2003, the MMDA sent a notice of demolition to Justice
Gancayco alleging that a portion of his building violated the
National Building Code of the Philippines (Building Code) 9 in
relation to Ordinance No. 2904. The MMDA gave Justice Gancayco
fifteen (15) days to clear the portion of the building that was
supposed to be an arcade along EDSA.10
Justice Gancayco did not comply with the notice. Soon after the
lapse of the fifteen (15) days, the MMDA proceeded to demolish
the party wall, or what was referred to as the "wing walls," of the
ground floor structure. The records of the present case are not
entirely clear on the extent of the demolition; nevertheless, the fact
of demolition was not disputed. At the time of the demolition, the
affected portion of the building was being used as a restaurant.
On 29 May 2003, Justice Gancayco filed a Petition11 with prayer for
a temporary restraining order and/or writ of preliminary injunction
before the Regional Trial Court (RTC) of Quezon City, docketed as
Civil Case No. Q03-49693, seeking to prohibit the MMDA and the
City Government of Quezon City from demolishing his property. In
his Petition,12 he alleged that the ordinance authorized the taking of
private property without due process of law and just compensation,

because the construction of an arcade will require 67.5 square
meters from the 375 square meter property. In addition, he claimed
that the ordinance was selective and discriminatory in its scope and
application when it allowed the owners of the buildings located in
the Quezon City-San Juan boundary to Cubao Rotonda, and Balete
to Seattle Streets to construct arcades at their option. He thus sought
the declaration of nullity of Ordinance No. 2904 and the payment of
damages. Alternately, he prayed for the payment of just
compensation should the court hold the ordinance valid.
The City Government of Quezon City claimed that the ordinance
was a valid exercise of police power, regulating the use of property
in a business zone. In addition, it pointed out that Justice Gancayco
was already barred by estoppel, laches and prescription.
Similarly, the MMDA alleged that Justice Gancayco could not seek
the nullification of an ordinance that he had already violated, and
that the ordinance enjoyed the presumption of constitutionality. It
further stated that the questioned property was a public nuisance
impeding the safe passage of pedestrians. Finally, the MMDA
claimed that it was merely implementing the legal easement
established by Ordinance No. 2904.13
The RTC rendered its Decision on 30 September 2003 in favor of
Justice Gancayco.14 It held that the questioned ordinance was
unconstitutional, ruling that it allowed the taking of private property
for public use without just compensation. The RTC said that
because 67.5 square meters out of Justice Gancayco’s 375 square
meters of property were being taken without compensation for the
public’s benefit, the ordinance was confiscatory and oppressive. It
likewise held that the ordinance violated owners’ right to equal
protection of laws. The dispositive portion thus states:
WHEREFORE, the petition is hereby granted and the Court hereby
declares Quezon City Ordinance No. 2094,15 Series of 1956 to be
unconstitutional, invalid and void ab initio. The respondents are
hereby permanently enjoined from enforcing and implementing the
said ordinance, and the respondent MMDA is hereby directed to
immediately restore the portion of the party wall or wing wall of the
building of the petitioner it destroyed to its original condition.
IT IS SO ORDERED.
The MMDA thereafter appealed from the Decision of the trial court.
On 18 July 2006, the Court of Appeals (CA) partly granted the
appeal.16 The CA upheld the validity of Ordinance No. 2904 and
lifted the injunction against the enforcement and implementation of
the ordinance. In so doing, it held that the ordinance was a valid
exercise of the right of the local government unit to promote the
general welfare of its constituents pursuant to its police powers. The
CA also ruled that the ordinance established a valid classification of
property owners with regard to the construction of arcades in their
respective properties depending on the location. The CA further
stated that there was no taking of private property, since the owner
still enjoyed the beneficial ownership of the property, to wit:
Even with the requirement of the construction of arcaded sidewalks
within his commercial lot, appellee still retains the beneficial
ownership of the said property. Thus, there is no "taking" for public
use which must be subject to just compensation. While the arcaded
64
sidewalks contribute to the public good, for providing safety and
comfort to passersby, the ultimate benefit from the same still
redounds to appellee, his commercial establishment being at the
forefront of a busy thoroughfare like EDSA. The arcaded sidewalks,
by their nature, assure clients of the commercial establishments
thereat some kind of protection from accidents and other hazards.
Without doubt, this sense of protection can be a boon to the
business activity therein engaged. 17
Nevertheless, the CA held that the MMDA went beyond its powers
when it demolished the subject property. It further found that
Resolution No. 02-28 only refers to sidewalks, streets, avenues,
alleys, bridges, parks and other public places in Metro Manila, thus
excluding Justice Gancayco’s private property. Lastly, the CA
stated that the MMDA is not clothed with the authority to declare,
prevent or abate nuisances. Thus, the dispositive portion stated:
WHEREFORE, the appeals are PARTLY GRANTED. The
Decision dated September 30, 2003 of the Regional Trial Court,
Branch 224, Quezon City, is MODIFIED, as follows:
1) The validity and constitutionality of Ordinance No.
2094,18 Series of 1956, issued by the City Council of
Quezon City, is UPHELD; and
2) The injunction against the enforcement and
implementation of the said Ordinance is LIFTED.
SO ORDERED.
This ruling prompted the MMDA and Justice Gancayco to file their
respective Motions for Partial Reconsideration.19
On 10 May 2007, the CA denied the motions stating that the parties
did not present new issues nor offer grounds that would merit the
reconsideration of the Court.20
Dissatisfied with the ruling of the CA, Justice Gancayco and the
MMDA filed their respective Petitions for Review before this
Court. The issues raised by the parties are summarized as follows:
I. WHETHER OR NOT JUSTICE GANCAYCO WAS
ESTOPPED FROM ASSAILING THE VALIDITY OF
ORDINANCE NO. 2904.
II. WHETHER OR NOT ORDINANCE NO. 2904 IS
CONSTITUTIONAL.
III. WHETHER OR NOT THE WING WALL OF
JUSTICE GANCAYCO’S BUILDING IS A PUBLIC
NUISANCE.
IV. WHETHER OR NOT THE MMDA LEGALLY
DEMOLISHED THE PROPERTY OF JUSTICE
GANCAYCO.
The Court’s Ruling
Estoppel

The MMDA and the City Government of Quezon City both claim
that Justice Gancayco was estopped from challenging the ordinance,
because, in 1965, he asked for an exemption from the application of
the ordinance. According to them, Justice Gancayco thereby
recognized the power of the city government to regulate the
construction of buildings.
To recall, Justice Gancayco questioned the constitutionality of the
ordinance on two grounds: (1) whether the ordinance "takes" private
property without due process of law and just compensation; and (2)
whether the ordinance violates the equal protection of rights
because it allowed exemptions from its application.
On the first ground, we find that Justice Gancayco may still
question the constitutionality of the ordinance to determine whether
or not the ordinance constitutes a "taking" of private property
without due process of law and just compensation. It was only in
2003 when he was allegedly deprived of his property when the
MMDA demolished a portion of the building. Because he was
granted an exemption in 1966, there was no "taking" yet to speak
of.
Moreover, in Acebedo Optical Company, Inc. v. Court of
Appeals,21 we held:
It is therefore decisively clear that estoppel cannot apply in this
case. The fact that petitioner acquiesced in the special conditions
imposed by the City Mayor in subject business permit does not
preclude it from challenging the said imposition, which is ultra
vires or beyond the ambit of authority of respondent City Mayor.
Ultra vires acts or acts which are clearly beyond the scope of one's
authority are null and void and cannot be given any effect. The
doctrine of estoppel cannot operate to give effect to an act which is
otherwise null and void or ultra vires. (Emphasis supplied.)
Recently, in British American Tobacco v. Camacho,22 we likewise
held:
We find that petitioner was not guilty of estoppel. When it made the
undertaking to comply with all issuances of the BIR, which at that
time it considered as valid, petitioner did not commit any false
misrepresentation or misleading act. Indeed, petitioner cannot be
faulted for initially undertaking to comply with, and subjecting
itself to the operation of Section 145(C), and only later on filing the
subject case praying for the declaration of its unconstitutionality
when the circumstances change and the law results in what it
perceives to be unlawful discrimination. The mere fact that a law
has been relied upon in the past and all that time has not been
attacked as unconstitutional is not a ground for considering
petitioner estopped from assailing its validity. For courts will pass
upon a constitutional question only when presented before it in
bona fide cases for determination, and the fact that the question has
not been raised before is not a valid reason for refusing to allow it to
be raised later. (Emphasis supplied.)
Anent the second ground, we find that Justice Gancayco may not
question the ordinance on the ground of equal protection when he
also benefited from the exemption. It bears emphasis that Justice
Gancayco himself requested for an exemption from the application
of the ordinance in 1965 and was eventually granted one. Moreover,
65
he was still enjoying the exemption at the time of the demolition as
there was yet no valid notice from the city engineer. Thus, while the
ordinance may be attacked with regard to its different treatment of
properties that appears to be similarly situated, Justice Gancayco is
not the proper person to do so.
Zoning and the regulation of the
construction of buildings are valid
exercises of police power .
In MMDA v. Bel-Air Village Association,23 we discussed the nature
of police powers exercised by local government units, to wit:
Police power is an inherent attribute of sovereignty. It has been
defined as the power vested by the Constitution in the legislature to
make, ordain, and establish all manner of wholesome and
reasonable laws, statutes and ordinances, either with penalties or
without, not repugnant to the Constitution, as they shall judge to be
for the good and welfare of the commonwealth, and for the subjects
of the same. The power is plenary and its scope is vast and
pervasive, reaching and justifying measures for public health, public
safety, public morals, and the general welfare.
It bears stressing that police power is lodged primarily in the
National Legislature. It cannot be exercised by any group or body of
individuals not possessing legislative power. The National
Legislature, however, may delegate this power to the President and
administrative boards as well as the lawmaking bodies of municipal
corporations or local government units. Once delegated, the agents
can exercise only such legislative powers as are conferred on them
by the national lawmaking body.
To resolve the issue on the constitutionality of the ordinance, we
must first determine whether there was a valid delegation of police
power. Then we can determine whether the City Government of
Quezon City acted within the limits of the delegation.
It is clear that Congress expressly granted the city government,
through the city council, police power by virtue of Section 12(oo) of
Republic Act No. 537, or the Revised Charter of Quezon City, 24
which states:
To make such further ordinances and regulations not repugnant to
law as may be necessary to carry into effect and discharge the
powers and duties conferred by this Act and such as it shall deem
necessary and proper to provide for the health and safety, promote
the prosperity, improve the morals, peace, good order, comfort, and
convenience of the city and the inhabitants thereof, and for the
protection of property therein; and enforce obedience thereto with
such lawful fines or penalties as the City Council may prescribe
under the provisions of subsection (jj) of this section.
Specifically, on the powers of the city government to regulate the
construction of buildings, the Charter also expressly provided that
the city government had the power to regulate the kinds of buildings
and structures that may be erected within fire limits and the manner
of constructing and repairing them.25

With regard meanwhile to the power of the local government units
to issue zoning ordinances, we apply Social Justice Society v.
Atienza.26 In that case, the Sangguniang Panlungsod of Manila City
enacted an ordinance on 28 November 2001 reclassifying certain
areas of the city from industrial to commercial. As a result of the
zoning ordinance, the oil terminals located in those areas were no
longer allowed. Though the oil companies contended that they stood
to lose billions of pesos, this Court upheld the power of the city
government to pass the assailed ordinance, stating:
In the exercise of police power, property rights of individuals may
be subjected to restraints and burdens in order to fulfil the
objectives of the government. Otherwise stated, the government
may enact legislation that may interfere with personal liberty,
property, lawful businesses and occupations to promote the general
welfare. However, the interference must be reasonable and not
arbitrary. And to forestall arbitrariness, the methods or means used
to protect public health, morals, safety or welfare must have a
reasonable relation to the end in view.
The means adopted by the Sanggunian was the enactment of a
zoning ordinance which reclassified the area where the depot is
situated from industrial to commercial. A zoning ordinance is
defined as a local city or municipal legislation which logically
arranges, prescribes, defines and apportions a given political
subdivision into specific land uses as present and future projection
of needs. As a result of the zoning, the continued operation of the
businesses of the oil companies in their present location will no
longer be permitted. The power to establish zones for industrial,
commercial and residential uses is derived from the police power
itself and is exercised for the protection and benefit of the residents
of a locality. Consequently, the enactment of Ordinance No. 8027 is
within the power of the Sangguniang Panlungsod of the City of
Manila and any resulting burden on those affected cannot be said to
be unjust... (Emphasis supplied)
In Carlos Superdrug v. Department of Social Welfare and
Development,27 we also held:
For this reason, when the conditions so demand as determined by
the legislature, property rights must bow to the primacy of police
power because property rights, though sheltered by due process,
must yield to general welfare.
Police power as an attribute to promote the common good would be
diluted considerably if on the mere plea of petitioners that they will
suffer loss of earnings and capital, the questioned provision is
invalidated. Moreover, in the absence of evidence demonstrating the
alleged confiscatory effect of the provision in question, there is no
basis for its nullification in view of the presumption of validity
which every law has in its favor. (Emphasis supplied.)
In the case at bar, it is clear that the primary objectives of the city
council of Quezon City when it issued the questioned ordinance
ordering the construction of arcades were the health and safety of
the city and its inhabitants; the promotion of their prosperity; and
the improvement of their morals, peace, good order, comfort, and
the convenience. These arcades provide safe and convenient
passage along the sidewalk for commuters and pedestrians, not just
the residents of Quezon City. More especially so because the
66
contested portion of the building is located on a busy segment of the
city, in a business zone along EDSA.
Corollarily, the policy of the Building Code,28 which was passed
after the Quezon City Ordinance, supports the purpose for the
enactment of Ordinance No. 2904. The Building Code states:
Section 102. Declaration of Policy. – It is hereby declared to be the
policy of the State to safeguard life, health, property, and public
welfare, consistent with the principles of sound environmental
management and control; and to this end, make it the purpose of
this Code to provide for all buildings and structures, a framework of
minimum standards and requirements to regulate and control their
location, site, design quality of materials, construction, occupancy,
and maintenance.
Section 1004 likewise requires the construction of arcades
whenever existing or zoning ordinances require it. Apparently, the
law allows the local government units to determine whether arcades
are necessary within their respective jurisdictions.
Justice Gancayco argues that there is a three-meter sidewalk in front
of his property line, and the arcade should be constructed above that
sidewalk rather than within his property line. We do not need to
address this argument inasmuch as it raises the issue of the wisdom
of the city ordinance, a matter we will not and need not delve into.
To reiterate, at the time that the ordinance was passed, there was no
national building code enforced to guide the city council; thus, there
was no law of national application that prohibited the city council
from regulating the construction of buildings, arcades and sidewalks
in their jurisdiction.
The "wing walls" of the building are not
nuisances per se.
The MMDA claims that the portion of the building in question is a
nuisance per se.
We disagree.
The fact that in 1966 the City Council gave Justice Gancayco an
exemption from constructing an arcade is an indication that the
wing walls of the building are not nuisances per se. The wing walls
do not per se immediately and adversely affect the safety of persons
and property. The fact that an ordinance may declare a structure
illegal does not necessarily make that structure a nuisance.
Article 694 of the Civil Code defines nuisance as any act, omission,
establishment, business, condition or property, or anything else that
(1) injures or endangers the health or safety of others; (2) annoys or
offends the senses; (3) shocks, defies or disregards decency or
morality; (4) obstructs or interferes with the free passage of any
public highway or street, or any body of water; or, (5) hinders or
impairs the use of property. A nuisance may be per se or per
accidens. A nuisance per se is that which affects the immediate
safety of persons and property and may summarily be abated under
the undefined law of necessity.29

Clearly, when Justice Gancayco was given a permit to construct the
building, the city council or the city engineer did not consider the
building, or its demolished portion, to be a threat to the safety of
persons and property. This fact alone should have warned the
MMDA against summarily demolishing the structure.
Neither does the MMDA have the power to declare a thing a
nuisance. Only courts of law have the power to determine whether a
thing is a nuisance. In AC Enterprises v. Frabelle Properties Corp., 30
we held:
We agree with petitioner's contention that, under Section
447(a)(3)(i) of R.A. No. 7160, otherwise known as the Local
Government Code, the Sangguniang Panglungsod is empowered to
enact ordinances declaring, preventing or abating noise and other
forms of nuisance. It bears stressing, however, that the Sangguniang
Bayan cannot declare a particular thing as a nuisance per se and
order its condemnation. It does not have the power to find, as a fact,
that a particular thing is a nuisance when such thing is not a
nuisance per se; nor can it authorize the extrajudicial condemnation
and destruction of that as a nuisance which in its nature, situation or
use is not such. Those things must be determined and resolved in
the ordinary courts of law. If a thing be in fact, a nuisance due to the
manner of its operation, that question cannot be determined by a
mere resolution of the Sangguniang Bayan. (Emphasis supplied.)
MMDA illegally demolished
the property of Justice Gancayco.
MMDA alleges that by virtue of MMDA Resolution No. 02-28,
Series of 2002, it is empowered to demolish Justice Gancayco’s
property. It insists that the Metro Manila Council authorized the
MMDA and the local government units to clear the sidewalks,
streets, avenues, alleys, bridges, parks and other public places in
Metro Manila of all illegal structures and obstructions. It further
alleges that it demolished the property pursuant to the Building
Code in relation to Ordinance No. 2904 as amended.
However, the Building Code clearly provides the process by which
a building may be demolished. The authority to order the
demolition of any structure lies with the Building Official. The
pertinent provisions of the Building Code provide:
SECTION 205. Building Officials. — Except as otherwise provided
herein, the Building Official shall be responsible for carrying out
the provisions of this Code in the field as well as the enforcement of
orders and decisions made pursuant thereto.
Due to the exigencies of the service, the Secretary may designate
incumbent Public Works District Engineers, City Engineers and
Municipal Engineers act as Building Officials in their respective
areas of jurisdiction.
The designation made by the Secretary under this Section shall
continue until regular positions of Building Official are provided or
unless sooner terminated for causes provided by law or decree.
xxx xxx xxx
67
SECTION 207. Duties of a Building Official. — In his respective
territorial jurisdiction, the Building Official shall be primarily
responsible for the enforcement of the provisions of this Code as
well as of the implementing rules and regulations issued therefor.
He is the official charged with the duties of issuing building
permits.
In the performance of his duties, a Building Official may enter any
building or its premises at all reasonable times to inspect and
determine compliance with the requirements of this Code, and the
terms and conditions provided for in the building permit as issued.
When any building work is found to be contrary to the provisions of
this Code, the Building Official may order the work stopped and
prescribe the terms and/or conditions when the work will be
allowed to resume. Likewise, the Building Official is authorized to
order the discontinuance of the occupancy or use of any building or
structure or portion thereof found to be occupied or used contrary to
the provisions of this Code.
xxx xxx xxx
SECTION 215. Abatement of Dangerous Buildings. — When any
building or structure is found or declared to be dangerous or
ruinous, the Building Official shall order its repair, vacation or
demolition depending upon the degree of danger to life, health, or
safety. This is without prejudice to further action that may be taken
under the provisions of Articles 482 and 694 to 707 of the Civil
Code of the Philippines. (Emphasis supplied.)
MMDA v. Trackworks Rail Transit Advertising, Vending and
Promotions, Inc.31 is applicable to the case at bar. In that case,
MMDA, invoking its charter and the Building Code, summarily
dismantled the advertising media installed on the Metro Rail Transit
(MRT) 3. This Court held:
It is futile for MMDA to simply invoke its legal mandate to justify
the dismantling of Trackworks' billboards, signages and other
advertising media. MMDA simply had no power on its own to
dismantle, remove, or destroy the billboards, signages and other
advertising media installed on the MRT3 structure by Trackworks.
In Metropolitan Manila Development Authority v. Bel-Air Village
Association, Inc., Metropolitan Manila Development Authority v.
Viron Transportation Co., Inc., and Metropolitan Manila
Development Authority v. Garin, the Court had the occasion to rule
that MMDA's powers were limited to the formulation, coordination,
regulation, implementation, preparation, management, monitoring,
setting of policies, installing a system, and administration. Nothing
in Republic Act No. 7924 granted MMDA police power, let alone
legislative power.
Clarifying the real nature of MMDA, the Court held:
...The MMDA is, as termed in the charter itself, a "development
authority". It is an agency created for the purpose of laying down
policies and coordinating with the various national government
agencies, people's organizations, non-governmental organizations
and the private sector for the efficient and expeditious delivery of
basic services in the vast metropolitan area. All its functions are
 68

administrative in nature and these are actually summed up in the Quezon City Ordinance No. 2904 merely through its Resolution No.
charter itself, viz: 02-28.

Lastly, the MMDA claims that the City Government of Quezon

Sec.2. Creation of the Metropolitan Manila Development
Authority.- xxx.
The MMDA shall perform planning, monitoring and coordinative
functions, and in the process exercise regulatory and supervisory
authority over the delivery of metro-wide services within Metro
Manila, without diminution of the autonomy of local government
units concerning purely local matters.
City may be considered to have approved the demolition of the
structure, simply because then Quezon City Mayor Feliciano R.
Belmonte signed MMDA Resolution No. 02-28. In effect, the city
government delegated these powers to the MMDA. The powers
referred to are those that include the power to declare, prevent and
abate a nuisance32 and to further impose the penalty of removal or
demolition of the building or structure by the owner or by the city at
the expense of the owner.33

The Court also agrees with the CA's ruling that MMDA Regulation MMDA’s argument does not hold water. There was no valid
No. 96-009 and MMC Memorandum Circular No. 88-09 did not delegation of powers to the MMDA. Contrary to the claim of the
apply to Trackworks' billboards, signages and other advertising MMDA, the City Government of Quezon City washed its hands off
media. The prohibition against posting, installation and display of the acts of the former. In its Answer,34 the city government stated
billboards, signages and other advertising media applied only to that "the demolition was undertaken by the MMDA only, without
public areas, but MRT3, being private property pursuant to the BLT the participation and/or consent of Quezon City." Therefore, the
agreement between the Government and MRTC, was not one of the MMDA acted on its own and should be held solely liable for the
areas as to which the prohibition applied. Moreover, MMC destruction of the portion of Justice Gancayco’s building.
Memorandum Circular No. 88-09 did not apply to Trackworks'
billboards, signages and other advertising media in MRT3, because WHEREFORE, in view of the foregoing, the Decision of the Court
it did not specifically cover MRT3, and because it was issued a year of Appeals in CA-G.R. SP No. 84648 is AFFIRMED.
prior to the construction of MRT3 on the center island of EDSA.
Clearly, MMC Memorandum Circular No. 88-09 could not have SO ORDERED.
included MRT3 in its prohibition.
MARIA LOURDES P. A. SERENO
MMDA's insistence that it was only implementing Presidential Associate Justice
Decree No. 1096 (Building Code) and its implementing rules and
regulations is not persuasive. The power to enforce the provisions of
WE CONCUR:
the Building Code was lodged in the Department of Public Works
and Highways (DPWH), not in MMDA, considering the law's
following provision, thus: RENATO C. CORONA
Chief Justice
Sec. 201. Responsibility for Administration and Enforcement. -
The administration and enforcement of the provisions of this Code PRESBITERO J.
ANTONIO T. CARPIO
including the imposition of penalties for administrative violations VELASCO, JR.
Associate Justice
thereof is hereby vested in the Secretary of Public Works, Associate Justice
Transportation and Communications, hereinafter referred to as the TERESITA J. LEONARDO-DE
"Secretary." ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice
There is also no evidence showing that MMDA had been delegated (On official leave)
by DPWH to implement the Building Code. (Emphasis supplied.) DIOSDADO M. PERALTA
LUCAS P. BERSAMIN*
Associate Justice
Associate Justice
Additionally, the penalty prescribed by Ordinance No. 2904 itself MARIANO C. DEL CASTILLO ROBERTO A. ABAD
does not include the demolition of illegally constructed buildings in Associate Justice Associate Justice
case of violations. Instead, it merely prescribes a punishment of "a
(On official leave)
fine of not more than two hundred pesos (₱200.00) or by
MARTIN S. VILLARAMA, JR. JOSE PORTUGAL
imprisonment of not more than thirty (30) days, or by both such fine
Associate Justice PEREZ*
and imprisonment at the discretion of the Court, Provided, that if
Associate Justice
the violation is committed by a corporation, partnership, or any
juridical entity, the Manager, managing partner, or any person No Part
BIENVENIDO L. REYES
charged with the management thereof shall be held responsible JOSE C. MENDOZA**
Associate Justice
therefor." The ordinance itself also clearly states that it is the regular Associate Justice
courts that will determine whether there was a violation of the
ordinance. ESTELA M. PERLAS-BERNABE
Associate Justice
As pointed out in Trackworks, the MMDA does not have the power
to enact ordinances. Thus, it cannot supplement the provisions of

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 177056 September 18, 2009
THE OFFICE OF THE SOLICITOR GENERAL, Petitioner,
vs.
AYALA LAND INCORPORATED, ROBINSON'S LAND
CORPORATION, SHANGRI-LA PLAZA CORPORATION
and SM PRIME HOLDINGS, INC., Respondents.
DECISION
CHICO-NAZARIO, J.:
Before this Court is a Petition for Review on Certiorari,1 under Rule
45 of the Revised Rules of Court, filed by petitioner Office of the
Solicitor General (OSG), seeking the reversal and setting aside of
the Decision2 dated 25 January 2007 of the Court of Appeals in CA-
G.R. CV No. 76298, which affirmed in toto the Joint Decision 3
dated 29 May 2002 of the Regional Trial Court (RTC) of Makati
City, Branch 138, in Civil Cases No. 00-1208 and No. 00-1210; and
(2) the Resolution4 dated 14 March 2007 of the appellate court in
the same case which denied the Motion for Reconsideration of the
OSG. The RTC adjudged that respondents Ayala Land Incorporated
(Ayala Land), Robinsons Land Corporation (Robinsons), Shangri-la
Plaza Corporation (Shangri-la), and SM Prime Holdings, Inc. (SM
Prime) could not be obliged to provide free parking spaces in their
malls to their patrons and the general public.
Respondents Ayala Land, Robinsons, and Shangri-la maintain and
operate shopping malls in various locations in Metro Manila.
Respondent SM Prime constructs, operates, and leases out
commercial buildings and other structures, among which, are SM
City, Manila; SM Centerpoint, Sta. Mesa, Manila; SM City, North
Avenue, Quezon City; and SM Southmall, Las Piñas.
The shopping malls operated or leased out by respondents have
parking facilities for all kinds of motor vehicles, either by way of
parking spaces inside the mall buildings or in separate buildings
and/or adjacent lots that are solely devoted for use as parking
spaces. Respondents Ayala Land, Robinsons, and SM Prime spent
for the construction of their own parking facilities. Respondent
Shangri-la is renting its parking facilities, consisting of land and
building specifically used as parking spaces, which were
constructed for the lessor’s account.
Respondents expend for the maintenance and administration of their
respective parking facilities. They provide security personnel to
protect the vehicles parked in their parking facilities and maintain
order within the area. In turn, they collect the following parking fees
from the persons making use of their parking facilities, regardless of
whether said persons are mall patrons or not:
Respondent Parking Fees
69
On weekdays, ₱25.00 for the first four hours
Ayala Land and ₱10.00 for every succeeding hour; on
weekends, flat rate of ₱25.00 per day
₱20.00 for the first three hours and ₱10.00
Robinsons
for every succeeding hour
Shangri-la Flat rate of ₱30.00 per day
₱10.00 to ₱20.00 (depending on whether the
parking space is outdoors or indoors) for the
SM Prime
first three hours and 59 minutes, and ₱10.00
for every succeeding hour or fraction thereof
The parking tickets or cards issued by respondents to vehicle
owners contain the stipulation that respondents shall not be
responsible for any loss or damage to the vehicles parked in
respondents’ parking facilities.
In 1999, the Senate Committees on Trade and Commerce and on
Justice and Human Rights conducted a joint investigation for the
following purposes: (1) to inquire into the legality of the prevalent
practice of shopping malls of charging parking fees; (2) assuming
arguendo that the collection of parking fees was legally authorized,
to find out the basis and reasonableness of the parking rates charged
by shopping malls; and (3) to determine the legality of the policy of
shopping malls of denying liability in cases of theft, robbery, or
carnapping, by invoking the waiver clause at the back of the parking
tickets. Said Senate Committees invited the top executives of
respondents, who operate the major malls in the country; the
officials from the Department of Trade and Industry (DTI),
Department of Public Works and Highways (DPWH), Metro
Manila Development Authority (MMDA), and other local
government officials; and the Philippine Motorists Association
(PMA) as representative of the consumers’ group.
After three public hearings held on 30 September, 3 November, and
1 December 1999, the afore-mentioned Senate Committees jointly
issued Senate Committee Report No. 2255 on 2 May 2000, in which
they concluded:
In view of the foregoing, the Committees find that the collection of
parking fees by shopping malls is contrary to the National Building
Code and is therefor [sic] illegal. While it is true that the Code
merely requires malls to provide parking spaces, without specifying
whether it is free or not, both Committees believe that the
reasonable and logical interpretation of the Code is that the parking
spaces are for free. This interpretation is not only reasonable and
logical but finds support in the actual practice in other countries like
the United States of America where parking spaces owned and
operated by mall owners are free of charge.
Figuratively speaking, the Code has "expropriated" the land for
parking – something similar to the subdivision law which require
developers to devote so much of the land area for parks.
Moreover, Article II of R.A. No. 9734 (Consumer Act of the
Philippines) provides that "it is the policy of the State to protect the
interest of the consumers, promote the general welfare and establish
standards of conduct for business and industry." Obviously, a
contrary interpretation (i.e., justifying the collection of parking fees)
would be going against the declared policy of R.A. 7394.

Section 201 of the National Building Code gives the responsibility
for the administration and enforcement of the provisions of the
Code, including the imposition of penalties for administrative
violations thereof to the Secretary of Public Works. This set up,
however, is not being carried out in reality.
In the position paper submitted by the Metropolitan Manila
Development Authority (MMDA), its chairman, Jejomar C. Binay,
accurately pointed out that the Secretary of the DPWH is
responsible for the implementation/enforcement of the National
Building Code. After the enactment of the Local Government Code
of 1991, the local government units (LGU’s) were tasked to
discharge the regulatory powers of the DPWH. Hence, in the local
level, the Building Officials enforce all rules/ regulations
formulated by the DPWH relative to all building plans,
specifications and designs including parking space requirements.
There is, however, no single national department or agency directly
tasked to supervise the enforcement of the provisions of the Code
on parking, notwithstanding the national character of the law. 6
Senate Committee Report No. 225, thus, contained the following
recommendations:
In light of the foregoing, the Committees on Trade and Commerce
and Justice and Human Rights hereby recommend the following:
1. The Office of the Solicitor General should institute the
necessary action to enjoin the collection of parking fees as
well as to enforce the penal sanction provisions of the
National Building Code. The Office of the Solicitor
General should likewise study how refund can be exacted
from mall owners who continue to collect parking fees.
2. The Department of Trade and Industry pursuant to the
provisions of R.A. No. 7394, otherwise known as the
Consumer Act of the Philippines should enforce the
provisions of the Code relative to parking. Towards this
end, the DTI should formulate the necessary implementing
rules and regulations on parking in shopping malls, with
prior consultations with the local government units where
these are located. Furthermore, the DTI, in coordination
with the DPWH, should be empowered to regulate and
supervise the construction and maintenance of parking
establishments.
3. Finally, Congress should amend and update the National
Building Code to expressly prohibit shopping malls from
collecting parking fees by at the same time, prohibit them
from invoking the waiver of liability.7
Respondent SM Prime thereafter received information that,
pursuant to Senate Committee Report No. 225, the DPWH
Secretary and the local building officials of Manila, Quezon City,
and Las Piñas intended to institute, through the OSG, an action to
enjoin respondent SM Prime and similar establishments from
collecting parking fees, and to impose upon said establishments
penal sanctions under Presidential Decree No. 1096, otherwise
known as the National Building Code of the Philippines (National
Building Code), and its Implementing Rules and Regulations (IRR).
With the threatened action against it, respondent SM Prime filed, on
70
3 October 2000, a Petition for Declaratory Relief8 under Rule 63 of
the Revised Rules of Court, against the DPWH Secretary and local
building officials of Manila, Quezon City, and Las Piñas. Said
Petition was docketed as Civil Case No. 00-1208 and assigned to
the RTC of Makati City, Branch 138, presided over by Judge Sixto
Marella, Jr. (Judge Marella). In its Petition, respondent SM Prime
prayed for judgment:
a) Declaring Rule XIX of the Implementing Rules and
Regulations of the National Building Code as ultra vires,
hence, unconstitutional and void;
b) Declaring [herein respondent SM Prime]’s clear legal
right to lease parking spaces appurtenant to its department
stores, malls, shopping centers and other commercial
establishments; and
c) Declaring the National Building Code of the Philippines
Implementing Rules and Regulations as ineffective, not
having been published once a week for three (3)
consecutive weeks in a newspaper of general circulation,
as prescribed by Section 211 of Presidential Decree No.
1096.
[Respondent SM Prime] further prays for such other reliefs as may
be deemed just and equitable under the premises.9
The very next day, 4 October 2000, the OSG filed a Petition for
Declaratory Relief and Injunction (with Prayer for Temporary
Restraining Order and Writ of Preliminary Injunction) 10 against
respondents. This Petition was docketed as Civil Case No. 00-1210
and raffled to the RTC of Makati, Branch 135, presided over by
Judge Francisco B. Ibay (Judge Ibay). Petitioner prayed that the
RTC:
1. After summary hearing, a temporary restraining order
and a writ of preliminary injunction be issued restraining
respondents from collecting parking fees from their
customers; and
2. After hearing, judgment be rendered declaring that the
practice of respondents in charging parking fees is
violative of the National Building Code and its
Implementing Rules and Regulations and is therefore
invalid, and making permanent any injunctive writ issued
in this case.
Other reliefs just and equitable under the premises are likewise
prayed for.11
On 23 October 2000, Judge Ibay of the RTC of Makati City, Branch
135, issued an Order consolidating Civil Case No. 00-1210 with
Civil Case No. 00-1208 pending before Judge Marella of RTC of
Makati, Branch 138.
As a result of the pre-trial conference held on the morning of 8
August 2001, the RTC issued a Pre-Trial Order12 of even date
which limited the issues to be resolved in Civil Cases No. 00-1208
and No. 00-1210 to the following:

1. Capacity of the plaintiff [OSG] in Civil Case No. 00-
1210 to institute the present proceedings and relative
thereto whether the controversy in the collection of parking
fees by mall owners is a matter of public welfare.
2. Whether declaratory relief is proper.
3. Whether respondent Ayala Land, Robinsons, Shangri-La
and SM Prime are obligated to provide parking spaces in
their malls for the use of their patrons or the public in
general, free of charge.
4. Entitlement of the parties of [sic] award of damages. 13
On 29 May 2002, the RTC rendered its Joint Decision in Civil
Cases No. 00-1208 and No. 00-1210.
The RTC resolved the first two issues affirmatively. It ruled that the
OSG can initiate Civil Case No. 00-1210 under Presidential Decree
No. 478 and the Administrative Code of 1987.14 It also found that
all the requisites for an action for declaratory relief were present, to
wit:
The requisites for an action for declaratory relief are: (a) there is a
justiciable controversy; (b) the controversy is between persons
whose interests are adverse; (c) the party seeking the relief has a
legal interest in the controversy; and (d) the issue involved is ripe
for judicial determination.
SM, the petitioner in Civil Case No. 001-1208 [sic] is a mall
operator who stands to be affected directly by the position taken by
the government officials sued namely the Secretary of Public
Highways and the Building Officials of the local government units
where it operates shopping malls. The OSG on the other hand acts
on a matter of public interest and has taken a position adverse to
that of the mall owners whom it sued. The construction of new and
bigger malls has been announced, a matter which the Court can take
judicial notice and the unsettled issue of whether mall operators
should provide parking facilities, free of charge needs to be
resolved.15
As to the third and most contentious issue, the RTC pronounced
that:
The Building Code, which is the enabling law and the
Implementing Rules and Regulations do not impose that parking
spaces shall be provided by the mall owners free of charge. Absent
such directive[,] Ayala Land, Robinsons, Shangri-la and SM
[Prime] are under no obligation to provide them for free. Article
1158 of the Civil Code is clear:
"Obligations derived from law are not presumed. Only those
expressly determined in this Code or in special laws are demandable
and shall be regulated by the precepts of the law which establishes
them; and as to what has not been foreseen, by the provisions of this
Book (1090).["]
xxxx
71
The provision on ratios of parking slots to several variables, like
shopping floor area or customer area found in Rule XIX of the
Implementing Rules and Regulations cannot be construed as a
directive to provide free parking spaces, because the enabling law,
the Building Code does not so provide. x x x.
To compel Ayala Land, Robinsons, Shangri-La and SM [Prime] to
provide parking spaces for free can be considered as an unlawful
taking of property right without just compensation.
Parking spaces in shopping malls are privately owned and for their
use, the mall operators collect fees. The legal relationship could be
either lease or deposit. In either case[,] the mall owners have the
right to collect money which translates into income. Should parking
spaces be made free, this right of mall owners shall be gone. This,
without just compensation. Further, loss of effective control over
their property will ensue which is frowned upon by law.
The presence of parking spaces can be viewed in another light.
They can be looked at as necessary facilities to entice the public to
increase patronage of their malls because without parking spaces,
going to their malls will be inconvenient. These are[,] however[,]
business considerations which mall operators will have to decide for
themselves. They are not sufficient to justify a legal conclusion, as
the OSG would like the Court to adopt that it is the obligation of the
mall owners to provide parking spaces for free.16
The RTC then held that there was no sufficient evidence to justify
any award for damages.
The RTC finally decreed in its 29 May 2002 Joint Decision in Civil
Cases No. 00-1208 and No. 00-1210 that:
FOR THE REASONS GIVEN, the Court declares that Ayala
Land[,] Inc., Robinsons Land Corporation, Shangri-la Plaza
Corporation and SM Prime Holdings[,] Inc. are not obligated to
provide parking spaces in their malls for the use of their patrons or
public in general, free of charge.
All counterclaims in Civil Case No. 00-1210 are dismissed.
No pronouncement as to costs.17
CA-G.R. CV No. 76298 involved the separate appeals of the OSG18
and respondent SM Prime19 filed with the Court of Appeals. The
sole assignment of error of the OSG in its Appellant’s Brief was:
THE TRIAL COURT ERRED IN HOLDING THAT THE
NATIONAL BUILDING CODE DID NOT INTEND MALL
PARKING SPACES TO BE FREE OF CHARGE[;]20
while the four errors assigned by respondent SM Prime in its
Appellant’s Brief were:
I
THE TRIAL COURT ERRED IN FAILING TO DECLARE RULE
XIX OF THE IMPLEMENTING RULES AS HAVING BEEN

ENACTED ULTRA VIRES, HENCE, UNCONSTITUTIONAL
AND VOID.
II
THE TRIAL COURT ERRED IN FAILING TO DECLARE THE
IMPLEMENTING RULES INEFFECTIVE FOR NOT HAVING
BEEN PUBLISHED AS REQUIRED BY LAW.
III
THE TRIAL COURT ERRED IN FAILING TO DISMISS THE
OSG’S PETITION FOR DECLARATORY RELIEF AND
INJUNCTION FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES.
IV
THE TRIAL COURT ERRED IN FAILING TO DECLARE THAT
THE OSG HAS NO LEGAL CAPACITY TO SUE AND/OR
THAT IT IS NOT A REAL PARTY-IN-INTEREST IN THE
INSTANT CASE.21
Respondent Robinsons filed a Motion to Dismiss Appeal of the
OSG on the ground that the lone issue raised therein involved a pure
question of law, not reviewable by the Court of Appeals.
The Court of Appeals promulgated its Decision in CA-G.R. CV No.
76298 on 25 January 2007. The appellate court agreed with
respondent Robinsons that the appeal of the OSG should suffer the
fate of dismissal, since "the issue on whether or not the National
Building Code and its implementing rules require shopping mall
operators to provide parking facilities to the public for free" was
evidently a question of law. Even so, since CA-G.R. CV No. 76298
also included the appeal of respondent SM Prime, which raised
issues worthy of consideration, and in order to satisfy the demands
of substantial justice, the Court of Appeals proceeded to rule on the
merits of the case.
In its Decision, the Court of Appeals affirmed the capacity of the
OSG to initiate Civil Case No. 00-1210 before the RTC as the legal
representative of the government,22 and as the one deputized by the
Senate of the Republic of the Philippines through Senate Committee
Report No. 225.
The Court of Appeals rejected the contention of respondent SM
Prime that the OSG failed to exhaust administrative remedies. The
appellate court explained that an administrative review is not a
condition precedent to judicial relief where the question in dispute
is purely a legal one, and nothing of an administrative nature is to
be or can be done.
The Court of Appeals likewise refused to rule on the validity of the
IRR of the National Building Code, as such issue was not among
those the parties had agreed to be resolved by the RTC during the
pre-trial conference for Civil Cases No. 00-1208 and No. 00-1210.
Issues cannot be raised for the first time on appeal. Furthermore, the
appellate court found that the controversy could be settled on other
grounds, without touching on the issue of the validity of the IRR. It
72
referred to the settled rule that courts should refrain from passing
upon the constitutionality of a law or implementing rules, because
of the principle that bars judicial inquiry into a constitutional
question, unless the resolution thereof is indispensable to the
determination of the case.
Lastly, the Court of Appeals declared that Section 803 of the
National Building Code and Rule XIX of the IRR were clear and
needed no further construction. Said provisions were only intended
to control the occupancy or congestion of areas and structures. In
the absence of any express and clear provision of law, respondents
could not be obliged and expected to provide parking slots free of
charge.
The fallo of the 25 January 2007 Decision of the Court of Appeals
reads:
WHEREFORE, premises considered, the instant appeals are
DENIED. Accordingly, appealed Decision is hereby AFFIRMED in
toto.23
In its Resolution issued on 14 March 2007, the Court of Appeals
denied the Motion for Reconsideration of the OSG, finding that the
grounds relied upon by the latter had already been carefully
considered, evaluated, and passed upon by the appellate court, and
there was no strong and cogent reason to modify much less reverse
the assailed judgment.
The OSG now comes before this Court, via the instant Petition for
Review, with a single assignment of error:
THE COURT OF APPEALS SERIOUSLY ERRED IN
AFFIRMING THE RULING OF THE LOWER COURT THAT
RESPONDENTS ARE NOT OBLIGED TO PROVIDE FREE
PARKING SPACES TO THEIR CUSTOMERS OR THE
PUBLIC.24
The OSG argues that respondents are mandated to provide free
parking by Section 803 of the National Building Code and Rule
XIX of the IRR.
According to Section 803 of the National Building Code:
SECTION 803. Percentage of Site Occupancy
(a) Maximum site occupancy shall be governed by the use,
type of construction, and height of the building and the
use, area, nature, and location of the site; and subject to the
provisions of the local zoning requirements and in
accordance with the rules and regulations promulgated by
the Secretary.
In connection therewith, Rule XIX of the old IRR,25 provides:
RULE XIX – PARKING AND LOADING SPACE
REQUIREMENTS

Pursuant to Section 803 of the National Building Code (PD 1096)
providing for maximum site occupancy, the following provisions on
parking and loading space requirements shall be observed:
1. The parking space ratings listed below are minimum off-street
requirements for specific uses/occupancies for buildings/structures:
1.1 The size of an average automobile parking slot shall be
computed as 2.4 meters by 5.00 meters for perpendicular or
diagonal parking, 2.00 meters by 6.00 meters for parallel parking. A
truck or bus parking/loading slot shall be computed at a minimum
of 3.60 meters by 12.00 meters. The parking slot shall be drawn to
scale and the total number of which shall be indicated on the plans
and specified whether or not parking accommodations, are
attendant-managed. (See Section 2 for computation of parking
requirements).
xxxx
1.7 Neighborhood shopping center – 1 slot/100 sq. m. of shopping
floor area
The OSG avers that the aforequoted provisions should be read
together with Section 102 of the National Building Code, which
declares:
SECTION 102. Declaration of Policy
It is hereby declared to be the policy of the State to safeguard life,
health, property, and public welfare, consistent with the principles
of sound environmental management and control; and to this end,
make it the purpose of this Code to provide for all buildings and
structures, a framework of minimum standards and requirements to
regulate and control their location, site, design, quality of materials,
construction, use, occupancy, and maintenance.
The requirement of free-of-charge parking, the OSG argues, greatly
contributes to the aim of safeguarding "life, health, property, and
public welfare, consistent with the principles of sound
environmental management and control." Adequate parking spaces
would contribute greatly to alleviating traffic congestion when
complemented by quick and easy access thereto because of free-
charge parking. Moreover, the power to regulate and control the
use, occupancy, and maintenance of buildings and structures carries
with it the power to impose fees and, conversely, to control --
partially or, as in this case, absolutely -- the imposition of such fees.
The Court finds no merit in the present Petition.
The explicit directive of the afore-quoted statutory and regulatory
provisions, garnered from a plain reading thereof, is that
respondents, as operators/lessors of neighborhood shopping centers,
should provide parking and loading spaces, in accordance with the
minimum ratio of one slot per 100 square meters of shopping floor
area. There is nothing therein pertaining to the collection (or non-
collection) of parking fees by respondents. In fact, the term "parking
fees" cannot even be found at all in the entire National Building
Code and its IRR.
73
Statutory construction has it that if a statute is clear and
unequivocal, it must be given its literal meaning and applied
without any attempt at interpretation.26 Since Section 803 of the
National Building Code and Rule XIX of its IRR do not mention
parking fees, then simply, said provisions do not regulate the
collection of the same. The RTC and the Court of Appeals correctly
applied Article 1158 of the New Civil Code, which states:
Art. 1158. Obligations derived from law are not presumed. Only
those expressly determined in this Code or in special laws are
demandable, and shall be regulated by the precepts of the law which
establishes them; and as to what has not been foreseen, by the
provisions of this Book. (Emphasis ours.)
Hence, in order to bring the matter of parking fees within the ambit
of the National Building Code and its IRR, the OSG had to resort to
specious and feeble argumentation, in which the Court cannot
concur.
The OSG cannot rely on Section 102 of the National Building Code
to expand the coverage of Section 803 of the same Code and Rule
XIX of the IRR, so as to include the regulation of parking fees. The
OSG limits its citation to the first part of Section 102 of the
National Building Code declaring the policy of the State "to
safeguard life, health, property, and public welfare, consistent with
the principles of sound environmental management and control";
but totally ignores the second part of said provision, which reads,
"and to this end, make it the purpose of this Code to provide for all
buildings and structures, a framework of minimum standards and
requirements to regulate and control their location, site, design,
quality of materials, construction, use, occupancy, and
maintenance." While the first part of Section 102 of the National
Building Code lays down the State policy, it is the second part
thereof that explains how said policy shall be carried out in the
Code. Section 102 of the National Building Code is not an all-
encompassing grant of regulatory power to the DPWH Secretary
and local building officials in the name of life, health, property, and
public welfare. On the contrary, it limits the regulatory power of
said officials to ensuring that the minimum standards and
requirements for all buildings and structures, as set forth in the
National Building Code, are complied with.
Consequently, the OSG cannot claim that in addition to fixing the
minimum requirements for parking spaces for buildings, Rule XIX
of the IRR also mandates that such parking spaces be provided by
building owners free of charge. If Rule XIX is not covered by the
enabling law, then it cannot be added to or included in the
implementing rules. The rule-making power of administrative
agencies must be confined to details for regulating the mode or
proceedings to carry into effect the law as it has been enacted, and it
cannot be extended to amend or expand the statutory requirements
or to embrace matters not covered by the statute. Administrative
regulations must always be in harmony with the provisions of the
law because any resulting discrepancy between the two will always
be resolved in favor of the basic law.27
From the RTC all the way to this Court, the OSG repeatedly
referred to Republic v. Gonzales28 and City of Ozamis v. Lumapas29
to support its position that the State has the power to regulate
parking spaces to promote the health, safety, and welfare of the
public; and it is by virtue of said power that respondents may be

required to provide free parking facilities. The OSG, though, failed
to consider the substantial differences in the factual and legal
backgrounds of these two cases from those of the Petition at bar.
In Republic, the Municipality of Malabon sought to eject the
occupants of two parcels of land of the public domain to give way
to a road-widening project. It was in this context that the Court
pronounced:
Indiscriminate parking along F. Sevilla Boulevard and other main
thoroughfares was prevalent; this, of course, caused the build up of
traffic in the surrounding area to the great discomfort and
inconvenience of the public who use the streets. Traffic congestion
constitutes a threat to the health, welfare, safety and convenience of
the people and it can only be substantially relieved by widening
streets and providing adequate parking areas.
The Court, in City of Ozamis, declared that the City had been
clothed with full power to control and regulate its streets for the
purpose of promoting public health, safety and welfare. The City
can regulate the time, place, and manner of parking in the streets
and public places; and charge minimal fees for the street parking to
cover the expenses for supervision, inspection and control, to ensure
the smooth flow of traffic in the environs of the public market, and
for the safety and convenience of the public.
Republic and City of Ozamis involved parking in the local streets;
in contrast, the present case deals with privately owned parking
facilities available for use by the general public. In Republic and
City of Ozamis, the concerned local governments regulated parking
pursuant to their power to control and regulate their streets; in the
instant case, the DPWH Secretary and local building officials
regulate parking pursuant to their authority to ensure compliance
with the minimum standards and requirements under the National
Building Code and its IRR. With the difference in subject matters
and the bases for the regulatory powers being invoked, Republic
and City of Ozamis do not constitute precedents for this case.
Indeed, Republic and City of Ozamis both contain pronouncements
that weaken the position of the OSG in the case at bar. In Republic,
the Court, instead of placing the burden on private persons to
provide parking facilities to the general public, mentioned the trend
in other jurisdictions wherein the municipal governments
themselves took the initiative to make more parking spaces
available so as to alleviate the traffic problems, thus:
Under the Land Transportation and Traffic Code, parking in
designated areas along public streets or highways is allowed which
clearly indicates that provision for parking spaces serves a useful
purpose. In other jurisdictions where traffic is at least as
voluminous as here, the provision by municipal governments of
parking space is not limited to parking along public streets or
highways. There has been a marked trend to build off-street parking
facilities with the view to removing parked cars from the streets.
While the provision of off-street parking facilities or carparks has
been commonly undertaken by private enterprise, municipal
governments have been constrained to put up carparks in response
to public necessity where private enterprise had failed to keep up
with the growing public demand. American courts have upheld the
74
right of municipal governments to construct off-street parking
facilities as clearly redounding to the public benefit.30
In City of Ozamis, the Court authorized the collection by the City of
minimal fees for the parking of vehicles along the streets: so why
then should the Court now preclude respondents from collecting
from the public a fee for the use of the mall parking facilities?
Undoubtedly, respondents also incur expenses in the maintenance
and operation of the mall parking facilities, such as electric
consumption, compensation for parking attendants and security, and
upkeep of the physical structures.
It is not sufficient for the OSG to claim that "the power to regulate
and control the use, occupancy, and maintenance of buildings and
structures carries with it the power to impose fees and, conversely,
to control, partially or, as in this case, absolutely, the imposition of
such fees." Firstly, the fees within the power of regulatory agencies
to impose are regulatory fees. It has been settled law in this
jurisdiction that this broad and all-compassing governmental
competence to restrict rights of liberty and property carries with it
the undeniable power to collect a regulatory fee. It looks to the
enactment of specific measures that govern the relations not only as
between individuals but also as between private parties and the
political society.31 True, if the regulatory agencies have the power
to impose regulatory fees, then conversely, they also have the power
to remove the same. Even so, it is worthy to note that the present
case does not involve the imposition by the DPWH Secretary and
local building officials of regulatory fees upon respondents; but the
collection by respondents of parking fees from persons who use the
mall parking facilities. Secondly, assuming arguendo that the
DPWH Secretary and local building officials do have regulatory
powers over the collection of parking fees for the use of privately
owned parking facilities, they cannot allow or prohibit such
collection arbitrarily or whimsically. Whether allowing or
prohibiting the collection of such parking fees, the action of the
DPWH Secretary and local building officials must pass the test of
classic reasonableness and propriety of the measures or means in
the promotion of the ends sought to be accomplished.32
Keeping in mind the aforementioned test of reasonableness and
propriety of measures or means, the Court notes that Section 803 of
the National Building Code falls under Chapter 8 on Light and
Ventilation. Evidently, the Code deems it necessary to regulate site
occupancy to ensure that there is proper lighting and ventilation in
every building. Pursuant thereto, Rule XIX of the IRR requires that
a building, depending on its specific use and/or floor area, should
provide a minimum number of parking spaces. The Court, however,
fails to see the connection between regulating site occupancy to
ensure proper light and ventilation in every building vis-à-vis
regulating the collection by building owners of fees for the use of
their parking spaces. Contrary to the averment of the OSG, the
former does not necessarily include or imply the latter. It totally
escapes this Court how lighting and ventilation conditions at the
malls could be affected by the fact that parking facilities thereat are
free or paid for.
The OSG attempts to provide the missing link by arguing that:
Under Section 803 of the National Building Code, complimentary
parking spaces are required to enhance light and ventilation, that is,
to avoid traffic congestion in areas surrounding the building, which

certainly affects the ventilation within the building itself, which
otherwise, the annexed parking spaces would have served. Free-of-
charge parking avoids traffic congestion by ensuring quick and easy
access of legitimate shoppers to off-street parking spaces annexed to
the malls, and thereby removing the vehicles of these legitimate
shoppers off the busy streets near the commercial establishments.33
The Court is unconvinced. The National Building Code regulates
buildings, by setting the minimum specifications and requirements
for the same. It does not concern itself with traffic congestion in
areas surrounding the building. It is already a stretch to say that the
National Building Code and its IRR also intend to solve the
problem of traffic congestion around the buildings so as to ensure
that the said buildings shall have adequate lighting and ventilation.
Moreover, the Court cannot simply assume, as the OSG has
apparently done, that the traffic congestion in areas around the malls
is due to the fact that respondents charge for their parking facilities,
thus, forcing vehicle owners to just park in the streets. The Court
notes that despite the fees charged by respondents, vehicle owners
still use the mall parking facilities, which are even fully occupied on
some days. Vehicle owners may be parking in the streets only
because there are not enough parking spaces in the malls, and not
because they are deterred by the parking fees charged by
respondents. Free parking spaces at the malls may even have the
opposite effect from what the OSG envisioned: more people may be
encouraged by the free parking to bring their own vehicles, instead
of taking public transport, to the malls; as a result, the parking
facilities would become full sooner, leaving more vehicles without
parking spaces in the malls and parked in the streets instead,
causing even more traffic congestion.
Without using the term outright, the OSG is actually invoking
police power to justify the regulation by the State, through the
DPWH Secretary and local building officials, of privately owned
parking facilities, including the collection by the owners/operators
of such facilities of parking fees from the public for the use thereof.
The Court finds, however, that in totally prohibiting respondents
from collecting parking fees from the public for the use of the mall
parking facilities, the State would be acting beyond the bounds of
police power.
Police power is the power of promoting the public welfare by
restraining and regulating the use of liberty and property. It is
usually exerted in order to merely regulate the use and enjoyment of
the property of the owner. The power to regulate, however, does not
include the power to prohibit. A fortiori, the power to regulate does
not include the power to confiscate. Police power does not involve
the taking or confiscation of property, with the exception of a few
cases where there is a necessity to confiscate private property in
order to destroy it for the purpose of protecting peace and order and
of promoting the general welfare; for instance, the confiscation of
an illegally possessed article, such as opium and firearms. 34
When there is a taking or confiscation of private property for public
use, the State is no longer exercising police power, but another of its
inherent powers, namely, eminent domain. Eminent domain enables
the State to forcibly acquire private lands intended for public use
upon payment of just compensation to the owner.35
Normally, of course, the power of eminent domain results in the
taking or appropriation of title to, and possession of, the
75
expropriated property; but no cogent reason appears why the said
power may not be availed of only to impose a burden upon the
owner of condemned property, without loss of title and
possession.36 It is a settled rule that neither acquisition of title nor
total destruction of value is essential to taking. It is usually in cases
where title remains with the private owner that inquiry should be
made to determine whether the impairment of a property is merely
regulated or amounts to a compensable taking. A regulation that
deprives any person of the profitable use of his property constitutes
a taking and entitles him to compensation, unless the invasion of
rights is so slight as to permit the regulation to be justified under the
police power. Similarly, a police regulation that unreasonably
restricts the right to use business property for business purposes
amounts to a taking of private property, and the owner may recover
therefor.371avvphi1
Although in the present case, title to and/or possession of the
parking facilities remain/s with respondents, the prohibition against
their collection of parking fees from the public, for the use of said
facilities, is already tantamount to a taking or confiscation of their
properties. The State is not only requiring that respondents devote a
portion of the latter’s properties for use as parking spaces, but is
also mandating that they give the public access to said parking
spaces for free. Such is already an excessive intrusion into the
property rights of respondents. Not only are they being deprived of
the right to use a portion of their properties as they wish, they are
further prohibited from profiting from its use or even just
recovering therefrom the expenses for the maintenance and
operation of the required parking facilities.
The ruling of this Court in City Government of Quezon City v.
Judge Ericta38 is edifying. Therein, the City Government of Quezon
City passed an ordinance obliging private cemeteries within its
jurisdiction to set aside at least six percent of their total area for
charity, that is, for burial grounds of deceased paupers. According
to the Court, the ordinance in question was null and void, for it
authorized the taking of private property without just compensation:
There is no reasonable relation between the setting aside of at least
six (6) percent of the total area of all private cemeteries for charity
burial grounds of deceased paupers and the promotion of' health,
morals, good order, safety, or the general welfare of the people. The
ordinance is actually a taking without compensation of a certain
area from a private cemetery to benefit paupers who are charges of
the municipal corporation. Instead of' building or maintaining a
public cemetery for this purpose, the city passes the burden to
private cemeteries.
'The expropriation without compensation of a portion of private
cemeteries is not covered by Section 12(t) of Republic Act 537, the
Revised Charter of Quezon City which empowers the city council to
prohibit the burial of the dead within the center of population of the
city and to provide for their burial in a proper place subject to the
provisions of general law regulating burial grounds and cemeteries.
When the Local Government Code, Batas Pambansa Blg. 337
provides in Section 177(q) that a sangguniang panlungsod may
"provide for the burial of the dead in such place and in such manner
as prescribed by law or ordinance" it simply authorizes the city to
provide its own city owned land or to buy or expropriate private
properties to construct public cemeteries. This has been the law, and
practise in the past. It continues to the present. Expropriation,
 76

however, requires payment of just compensation. The questioned CONSUELO YNARES-SANTIAGO

ordinance is different from laws and regulations requiring owners of Associate Justice
subdivisions to set aside certain areas for streets, parks, Chairperson, Third Division
playgrounds, and other public facilities from the land they sell to
buyers of subdivision lots. The necessities of public safety, health, CERTIFICATION
and convenience are very clear from said requirements which are
intended to insure the development of communities with salubrious
Pursuant to Section 13, Article VIII of the Constitution, and the
and wholesome environments. The beneficiaries of the regulation,
Division Chairperson’s Attestation, it is hereby certified that the
in turn, are made to pay by the subdivision developer when conclusions in the above Decision were reached in consultation
individual lots are sold to homeowners. before the case was assigned to the writer of the opinion of the
Court’s Division.
In conclusion, the total prohibition against the collection by
respondents of parking fees from persons who use the mall parking
REYNATO S. PUNO
facilities has no basis in the National Building Code or its IRR. The Chief Justice
State also cannot impose the same prohibition by generally
invoking police power, since said prohibition amounts to a taking of
respondents’ property without payment of just compensation.

Given the foregoing, the Court finds no more need to address the
issue persistently raised by respondent SM Prime concerning the
unconstitutionality of Rule XIX of the IRR. In addition, the said
issue was not among those that the parties, during the pre-trial
conference for Civil Cases No. 12-08 and No. 00-1210, agreed to
submit for resolution of the RTC. It is likewise axiomatic that the
constitutionality of a law, a regulation, an ordinance or an act will
not be resolved by courts if the controversy can be, as in this case it
has been, settled on other grounds.39

WHEREFORE, the instant Petition for Review on Certiorari is

hereby DENIED. The Decision dated 25 January 2007 and
Resolution dated 14 March 2007 of the Court of Appeals in CA-
G.R. CV No. 76298, affirming in toto the Joint Decision dated 29
May 2002 of the Regional Trial Court of Makati City, Branch 138,
in Civil Cases No. 00-1208 and No. 00-1210 are hereby
AFFIRMED. No costs.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

PRESBITERIO J. ANTONIO EDUARDO B.

VELASCO, JR. NACHURA
Associate Justice Associate Justice

DIOSDADO M. PERALTA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in

consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 161107 March 12, 2013
HON. MA. LOURDES C. FERNANDO, in her capacity as City
Mayor of Marikina City, JOSEPHINE C. EVANGELIST A, in
her capacity as Chief, Permit Division, Office of the City
Engineer, and ALFONSO ESPIRITU, in his capacity as City
Engineer of Marikina City, Petitioners,
vs.
ST. SCHOLASTICA'S COLLEGE and ST. SCHOLASTICA'S
ACADEMY-MARIKINA, INC., Respondents.
DECISION
MENDOZA, J.:
Before this Court is a petition for review on certiorari under Rule 45
of the Rules of Court, which seeks to set aside the December 1,
2003 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No.
75691.
The Facts
Respondents St. Scholastica’s College (SSC) and St. Scholastica’s
Academy-Marikina, Inc. (SSA-Marikina) are educational
institutions organized under the laws of the Republic of the
Philippines, with principal offices and business addresses at Leon
Guinto Street, Malate, Manila, and at West Drive, Marikina
Heights, Marikina City, respectively.2
Respondent SSC is the owner of four (4) parcels of land measuring
a total of 56,306.80 square meters, located in Marikina Heights and
covered by Transfer Certificate Title (TCT) No. 91537. Located
within the property are SSA-Marikina, the residence of the sisters of
the Benedictine Order, the formation house of the novices, and the
retirement house for the elderly sisters. The property is enclosed by
a tall concrete perimeter fence built some thirty (30) years ago.
Abutting the fence along the West Drive are buildings, facilities,
and other improvements.3
The petitioners are the officials of the City Government of
Marikina. On September 30, 1994, the Sangguniang Panlungsod of
Marikina City enacted Ordinance No. 192,4 entitled "Regulating the
Construction of Fences and Walls in the Municipality of Marikina."
In 1995 and 1998, Ordinance Nos. 2175 and 2006 were enacted to
amend Sections 7 and 5, respectively. Ordinance No. 192, as
amended, is reproduced hereunder, as follows:
ORDINANCE No. 192
Series of 1994
ORDINANCE REGULATING THE CONSTRUCTION OF
FENCES AND WALLS IN THE MUNICIPALITY OF
MARIKINA
77
WHEREAS, under Section 447.2 of Republic Act No. 7160
otherwise known as the Local Government Code of 1991 empowers
the Sangguniang Bayan as the local legislative body of the
municipality to "x x x Prescribe reasonable limits and restraints on
the use of property within the jurisdiction of the municipality, x x
x";
WHEREAS the effort of the municipality to accelerate its economic
and physical development, coupled with urbanization and
modernization, makes imperative the adoption of an ordinance
which shall embody up-to-date and modern technical design in the
construction of fences of residential, commercial and industrial
buildings;
WHEREAS, Presidential Decree No. 1096, otherwise known as the
National Building Code of the Philippines, does not adequately
provide technical guidelines for the construction of fences, in terms
of design, construction, and criteria;
WHEREAS, the adoption of such technical standards shall provide
more efficient and effective enforcement of laws on public safety
and security;
WHEREAS, it has occurred in not just a few occasions that high
fences or walls did not actually discourage but, in fact, even
protected burglars, robbers, and other lawless elements from the
view of outsiders once they have gained ingress into these walls,
hence, fences not necessarily providing security, but becomes itself
a "security problem";
WHEREAS, to discourage, suppress or prevent the concealment of
prohibited or unlawful acts earlier enumerated, and as guardian of
the people of Marikina, the municipal government seeks to enact
and implement rules and ordinances to protect and promote the
health, safety and morals of its constituents;
WHEREAS, consistent too, with the "Clean and Green Program" of
the government, lowering of fences and walls shall encourage
people to plant more trees and ornamental plants in their yards, and
when visible, such trees and ornamental plants are expected to
create an aura of a clean, green and beautiful environment for
Marikeños;
WHEREAS, high fences are unsightly that, in the past, people
planted on sidewalks to "beautify" the façade of their residences
but, however, become hazards and obstructions to pedestrians;
WHEREAS, high and solid walls as fences are considered "un-
neighborly" preventing community members to easily communicate
and socialize and deemed to create "boxed-in" mentality among the
populace;
WHEREAS, to gather as wide-range of opinions and comments on
this proposal, and as a requirement of the Local Government Code
of 1991 (R.A. 7160), the Sangguniang Bayan of Marikina invited
presidents or officers of homeowners associations, and commercial
and industrial establishments in Marikina to two public hearings
held on July 28, 1994 and August 25, 1994;

WHEREAS, the rationale and mechanics of the proposed ordinance
were fully presented to the attendees and no vehement objection
was presented to the municipal government;
NOW, THEREFORE, BE IT ORDAINED BY THE
SANGGUINANG BAYAN OF MARIKINA IN SESSION DULY
ASSEMBLED:
Section 1. Coverage: This Ordinance regulates the construction of
all fences, walls and gates on lots classified or used for residential,
commercial, industrial, or special purposes.
Section 2. Definition of Terms:
a. Front Yard – refers to the area of the lot
fronting a street, alley or public thoroughfare.
b. Back Yard – the part of the lot at the rear of the
structure constructed therein.
c. Open fence – type of fence which allows a view
of "thru-see" of the inner yard and the
improvements therein. (Examples: wrought iron,
wooden lattice, cyclone wire)
d. Front gate – refers to the gate which serves as a
passage of persons or vehicles fronting a street,
alley, or public thoroughfare.
Section 3. The standard height of fences or walls allowed under this
ordinance are as follows:
(1) Fences on the front yard – shall be no more
than one (1) meter in height. Fences in excess of
one (1) meter shall be of an open fence type, at
least eighty percent (80%) see-thru; and
(2) Fences on the side and back yard – shall be in
accordance with the provisions of P.D. 1096
otherwise known as the National Building Code.
Section 4. No fence of any kind shall be allowed in areas
specifically reserved or classified as parks.
Section 5. In no case shall walls and fences be built within the five
(5) meter parking area allowance located between the front
monument line and the building line of commercial and industrial
establishments and educational and religious institutions.7
Section 6. Exemption.
(1) The Ordinance does not cover perimeter walls
of residential subdivisions.
(2) When public safety or public welfare requires,
the Sangguniang Bayan may allow the
construction and/or maintenance of walls higher
78
than as prescribed herein and shall issue a special
permit or exemption.
Section 7. Transitory Provision. Real property owners whose
existing fences and walls do not conform to the specifications
herein are allowed adequate period of time from the passage of this
Ordinance within which to conform, as follows:
(1) Residential houses – eight (8) years
(2) Commercial establishments – five (5) years
(3) Industrial establishments – three (3) years
(4) Educational institutions – five (5) years8
(public and privately owned)
Section 8. Penalty. Walls found not conforming to the provisions of
this Ordinance shall be demolished by the municipal government at
the expense of the owner of the lot or structure.
Section 9. The Municipal Engineering Office is tasked to strictly
implement this ordinance, including the issuance of the necessary
implementing guidelines, issuance of building and fencing permits,
and demolition of non-conforming walls at the lapse of the grace
period herein provided.
Section 10. Repealing Clause. All existing Ordinances and
Resolutions, Rules and Regulations inconsistent with the foregoing
provisions are hereby repealed, amended or modified.
Section 11. Separability Clause. If for any reason or reasons, local
executive orders, rules and regulations or parts thereof in conflict
with this Ordinance are hereby repealed and/or modified
accordingly.
Section 12. Effectivity. This ordinance takes effect after publication.
APPROVED: September 30, 1994
(Emphases supplied)
On April 2, 2000, the City Government of Marikina sent a letter to
the respondents ordering them to demolish and replace the fence of
their Marikina property to make it 80% see-thru, and, at the same
time, to move it back about six (6) meters to provide parking space
for vehicles to park.9 On April 26, 2000, the respondents requested
for an extension of time to comply with the directive. 10 In response,
the petitioners, through then City Mayor Bayani F. Fernando,
insisted on the enforcement of the subject ordinance.
Not in conformity, the respondents filed a petition for prohibition
with an application for a writ of preliminary injunction and
temporary restraining order before the Regional Trial Court,
Marikina, Branch 273 (RTC), docketed as SCA Case No. 2000-381-
MK.11

The respondents argued that the petitioners were acting in excess of
jurisdiction in enforcing Ordinance No. 192, asserting that such
contravenes Section 1, Article III of the 1987 Constitution. That
demolishing their fence and constructing it six (6) meters back
would result in the loss of at least 1,808.34 square meters, worth
about ₱9,041,700.00, along West Drive, and at least 1,954.02
square meters, worth roughly ₱9,770,100.00, along East Drive. It
would also result in the destruction of the garbage house, covered
walk, electric house, storage house, comfort rooms, guards’ room,
guards’ post, waiting area for visitors, waiting area for students,
Blessed Virgin Shrine, P.E. area, and the multi-purpose hall,
resulting in the permanent loss of their beneficial use. The
respondents, thus, asserted that the implementation of the ordinance
on their property would be tantamount to an appropriation of
property without due process of law; and that the petitioners could
only appropriate a portion of their property through eminent
domain. They also pointed out that the goal of the provisions to
deter lawless elements and criminality did not exist as the solid
concrete walls of the school had served as sufficient protection for
many years.12
The petitioners, on the other hand, countered that the ordinance was
a valid exercise of police power, by virtue of which, they could
restrain property rights for the protection of public safety, health,
morals, or the promotion of public convenience and general
prosperity.13
On June 30, 2000, the RTC issued a writ of preliminary injunction,
enjoining the petitioners from implementing the demolition of the
fence at SSC’s Marikina property.14
Ruling of the RTC
On the merits, the RTC rendered a Decision,15 dated October 2,
2002, granting the petition and ordering the issuance of a writ of
prohibition commanding the petitioners to permanently desist from
enforcing or implementing Ordinance No. 192 on the respondents’
property.
The RTC agreed with the respondents that the order of the
petitioners to demolish the fence at the SSC property in Marikina
and to move it back six (6) meters would amount to an
appropriation of property which could only be done through the
exercise of eminent domain. It held that the petitioners could not
take the respondents’ property under the guise of police power to
evade the payment of just compensation.
It did not give weight to the petitioners’ contention that the parking
space was for the benefit of the students and patrons of SSA-
Marikina, considering that the respondents were already providing
for sufficient parking in compliance with the standards under Rule
XIX of the National Building Code.
It further found that the 80% see-thru fence requirement could run
counter to the respondents’ right to privacy, considering that the
property also served as a residence of the Benedictine sisters, who
were entitled to some sense of privacy in their affairs. It also found
that the respondents were able to prove that the danger to security
had no basis in their case. Moreover, it held that the purpose of
79
beautification could not be used to justify the exercise of police
power.
It also observed that Section 7 of Ordinance No. 192, as amended,
provided for retroactive application. It held, however, that such
retroactive effect should not impair the respondents’ vested
substantive rights over the perimeter walls, the six-meter strips of
land along the walls, and the building, structures, facilities, and
improvements, which would be destroyed by the demolition of the
walls and the seizure of the strips of land.
The RTC also found untenable the petitioners’ argument that
Ordinance No. 192 was a remedial or curative statute intended to
correct the defects of buildings and structures, which were brought
about by the absence or insufficiency of laws. It ruled that the
assailed ordinance was neither remedial nor curative in nature,
considering that at the time the respondents’ perimeter wall was
built, the same was valid and legal, and the ordinance did not refer
to any previous legislation that it sought to correct.
The RTC noted that the petitioners could still take action to
expropriate the subject property through eminent domain.
The RTC, thus, disposed:
WHEREFORE, the petition is GRANTED. The writ of prohibition
is hereby issued commanding the respondents to permanently desist
from enforcing or implementing Ordinance No. 192, Series of 1994,
as amended, on petitioners’ property in question located at Marikina
Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.16
Ruling of the CA
In its December 1, 2003 Decision, the CA dismissed the petitioners’
appeal and affirmed the RTC decision.
The CA reasoned out that the objectives stated in Ordinance No.
192 did not justify the exercise of police power, as it did not only
seek to regulate, but also involved the taking of the respondents’
property without due process of law. The respondents were bound
to lose an unquantifiable sense of security, the beneficial use of
their structures, and a total of 3,762.36 square meters of property. It,
thus, ruled that the assailed ordinance could not be upheld as valid
as it clearly invaded the personal and property rights of the
respondents and "[f]or being unreasonable, and undue restraint of
trade."17
It noted that although the petitioners complied with procedural due
process in enacting Ordinance No. 192, they failed to comply with
substantive due process. Hence, the failure of the respondents to
attend the public hearings in order to raise objections did not
amount to a waiver of their right to question the validity of the
ordinance.

The CA also shot down the argument that the five-meter setback
provision for parking was a legal easement, the use and ownership
of which would remain with, and inure to, the benefit of the
respondents for whom the easement was primarily intended. It
found that the real intent of the setback provision was to make the
parking space free for use by the public, considering that such
would cease to be for the exclusive use of the school and its
students as it would be situated outside school premises and beyond
the school administration’s control.
In affirming the RTC ruling that the ordinance was not a curative
statute, the CA found that the petitioner failed to point out any
irregularity or invalidity in the provisions of the National Building
Code that required correction or cure. It noted that any correction in
the Code should be properly undertaken by the Congress and not by
the City Council of Marikina through an ordinance.
The CA, thus, disposed:
WHEREFORE, all foregoing premises considered, the instant
appeal is DENIED.1âwphi1 The October 2, 2002 Decision and the
January 13, 2003 Order of the Regional Trial Court (RTC) of
Marikina City, Branch 273, granting petitioners-appellees’ petition
for Prohibition in SCA Case No. 2000-381-MK are hereby
AFFIRMED.
SO ORDERED.18
Aggrieved by the decision of the CA, the petitioners are now before
this Court presenting the following
ASSIGNMENT OF ERRORS
1. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN DECLARING THAT CITY
ORDINANCE NO. 192, SERIES OF 1994 IS NOT A
VALID EXERCISE OF POLICE POWER;
2. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN RULING THAT THE
AFOREMENTIONED ORDINANCE IS AN EXERCISE
OF THE CITY OF THE POWER OF EMINENT
DOMAIN;
3. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN DECLARING THAT THE CITY
VIOLATED THE DUE PROCESS CLAUSE IN
IMPLEMENTING ORDINANCE NO. 192, SERIES OF
1994; AND
4. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN RULING THAT THE ABOVE-
MENTIONED ORDINANCE CANNOT BE GIVEN
RETROACTIVE APPLICATION.19
In this case, the petitioners admit that Section 5 of the assailed
ordinance, pertaining to the five-meter setback requirement is, as
held by the lower courts, invalid.20 Nonetheless, the petitioners
argue that such invalidity was subsequently cured by Zoning
80
Ordinance No. 303, series of 2000. They also contend that Section
3, relating to the 80% see-thru fence requirement, must be complied
with, as it remains to be valid.
Ruling of the Court
The ultimate question before the Court is whether Sections 3.1 and
5 of Ordinance No. 192 are valid exercises of police power by the
City Government of Marikina.
"Police power is the plenary power vested in the legislature to make
statutes and ordinances to promote the health, morals, peace,
education, good order or safety and general welfare of the people." 21
The State, through the legislature, has delegated the exercise of
police power to local government units, as agencies of the State.
This delegation of police power is embodied in Section 16 22 of the
Local Government Code of 1991 (R.A. No. 7160), known as the
General Welfare Clause,23 which has two branches. "The first,
known as the general legislative power, authorizes the municipal
council to enact ordinances and make regulations not repugnant to
law, as may be necessary to carry into effect and discharge the
powers and duties conferred upon the municipal council by law.
The second, known as the police power proper, authorizes the
municipality to enact ordinances as may be necessary and proper for
the health and safety, prosperity, morals, peace, good order,
comfort, and convenience of the municipality and its inhabitants,
and for the protection of their property." 24
White Light Corporation v. City of Manila,25 discusses the test of a
valid ordinance:
The test of a valid ordinance is well established. A long line of
decisions including City of Manila has held that for an ordinance to
be valid, it must not only be within the corporate powers of the local
government unit to enact and pass according to the procedure
prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive; (3)
must not be partial or discriminatory; (4) must not prohibit but may
regulate trade; (5) must be general and consistent with public
policy; and (6) must not be unreasonable.26
Ordinance No. 192 was passed by the City Council of Marikina in
the apparent exercise of its police power. To successfully invoke the
exercise of police power as the rationale for the enactment of an
ordinance and to free it from the imputation of constitutional
infirmity, two tests have been used by the Court – the rational
relationship test and the strict scrutiny test:
We ourselves have often applied the rational basis test mainly in
analysis of equal protection challenges. Using the rational basis
examination, laws or ordinances are upheld if they rationally further
a legitimate governmental interest. Under intermediate review,
governmental interest is extensively examined and the availability
of less restrictive measures is considered. Applying strict scrutiny,
the focus is on the presence of compelling, rather than substantial,
governmental interest and on the absence of less restrictive means
for achieving that interest.27

Even without going to a discussion of the strict scrutiny test,
Ordinance No. 192, series of 1994 must be struck down for not
being reasonably necessary to accomplish the City’s purpose. More
importantly, it is oppressive of private rights.
Under the rational relationship test, an ordinance must pass the
following requisites as discussed in Social Justice Society (SJS) v.
Atienza, Jr.:28
As with the State, local governments may be considered as having
properly exercised their police power only if the following
requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require its exercise
and (2) the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals. In short, there must be a concurrence of a lawful subject
and lawful method.29
Lacking a concurrence of these two requisites, the police power
measure shall be struck down as an arbitrary intrusion into private
rights and a violation of the due process clause. 30
Section 3.1 and 5 of the assailed ordinance are pertinent to the issue
at hand, to wit:
Section 3. The standard height of fences of walls allowed under this
ordinance are as follows:
(1) Fences on the front yard – shall be no more than one (1) meter in
height. Fences in excess of one (1) meter shall be an open fence
type, at least eighty percent (80%) see-thru;
xxx xxx xxx
Section 5. In no case shall walls and fences be built within the five
(5) meter parking area allowance located between the front
monument line and the building line of commercial and industrial
establishments and educational and religious institutions.
The respondents, thus, sought to prohibit the petitioners from
requiring them to (1) demolish their existing concrete wall, (2) build
a fence (in excess of one meter) which must be 80% see-thru, and
(3) build the said fence six meters back in order to provide a parking
area.
Setback Requirement
The Court first turns its attention to Section 5 which requires the
five-meter setback of the fence to provide for a parking area. The
petitioners initially argued that the ownership of the parking area to
be created would remain with the respondents as it would primarily
be for the use of its students and faculty, and that its use by the
public on non-school days would only be incidental. In their Reply,
however, the petitioners admitted that Section 5 was, in fact, invalid
for being repugnant to the Constitution.31
The Court agrees with the latter position.
81
The Court joins the CA in finding that the real intent of the setback
requirement was to make the parking space free for use by the
public, considering that it would no longer be for the exclusive use
of the respondents as it would also be available for use by the
general public. Section 9 of Article III of the 1987 Constitution, a
provision on eminent domain, provides that private property shall
not be taken for public use without just compensation.
The petitioners cannot justify the setback by arguing that the
ownership of the property will continue to remain with the
respondents. It is a settled rule that neither the acquisition of title
nor the total destruction of value is essential to taking. In fact, it is
usually in cases where the title remains with the private owner that
inquiry should be made to determine whether the impairment of a
property is merely regulated or amounts to a compensable taking.32
The Court is of the view that the implementation of the setback
requirement would be tantamount to a taking of a total of 3,762.36
square meters of the respondents’ private property for public use
without just compensation, in contravention to the Constitution.
Anent the objectives of prevention of concealment of unlawful acts
and "un-neighborliness," it is obvious that providing for a parking
area has no logical connection to, and is not reasonably necessary
for, the accomplishment of these goals.
Regarding the beautification purpose of the setback requirement, it
has long been settled that the State may not, under the guise of
police power, permanently divest owners of the beneficial use of
their property solely to preserve or enhance the aesthetic appearance
of the community.33 The Court, thus, finds Section 5 to be
unreasonable and oppressive as it will substantially divest the
respondents of the beneficial use of their property solely for
aesthetic purposes. Accordingly, Section 5 of Ordinance No. 192 is
invalid.
The petitioners, however, argue that the invalidity of Section 5 was
properly cured by Zoning Ordinance No. 303, 34 Series of 2000,
which classified the respondents’ property to be within an
institutional zone, under which a five-meter setback has been
required.
The petitioners are mistaken. Ordinance No. 303, Series of 2000,
has no bearing to the case at hand.
The Court notes with displeasure that this argument was only raised
for the first time on appeal in this Court in the petitioners’ Reply.
Considering that Ordinance No. 303 was enacted on December 20,
2000, the petitioners could very well have raised it in their defense
before the RTC in 2002. The settled rule in this jurisdiction is that a
party cannot change the legal theory of this case under which the
controversy was heard and decided in the trial court. It should be the
same theory under which the review on appeal is conducted. Points
of law, theories, issues, and arguments not adequately brought to
the attention of the lower court will not be ordinarily considered by
a reviewing court, inasmuch as they cannot be raised for the first
time on appeal. This will be offensive to the basic rules of fair play,
justice, and due process.35
Furthermore, the two ordinances have completely different purposes
and subjects. Ordinance No. 192 aims to regulate the construction

of fences, while Ordinance No. 303 is a zoning ordinance which
classifies the city into specific land uses. In fact, the five-meter
setback required by Ordinance No. 303 does not even appear to be
for the purpose of providing a parking area.
By no stretch of the imagination, therefore, can Ordinance No. 303,
"cure" Section 5 of Ordinance No. 192.
In any case, the clear subject of the petition for prohibition filed by
the respondents is Ordinance No. 192 and, as such, the precise issue
to be determined is whether the petitioners can be prohibited from
enforcing the said ordinance, and no other, against the respondents.
80% See-Thru Fence Requirement
The petitioners argue that while Section 5 of Ordinance No. 192
may be invalid, Section 3.1 limiting the height of fences to one
meter and requiring fences in excess of one meter to be at least 80%
see-thru, should remain valid and enforceable against the
respondents.
The Court cannot accommodate the petitioner.
For Section 3.1 to pass the rational relationship test, the petitioners
must show the reasonable relation between the purpose of the police
power measure and the means employed for its accomplishment, for
even under the guise of protecting the public interest, personal
rights and those pertaining to private property will not be permitted
to be arbitrarily invaded.36
The principal purpose of Section 3.1 is "to discourage, suppress or
prevent the concealment of prohibited or unlawful acts." The
ultimate goal of this objective is clearly the prevention of crime to
ensure public safety and security. The means employed by the
petitioners, however, is not reasonably necessary for the
accomplishment of this purpose and is unduly oppressive to private
rights. The petitioners have not adequately shown, and it does not
appear obvious to this Court, that an 80% see-thru fence would
provide better protection and a higher level of security, or serve as a
more satisfactory criminal deterrent, than a tall solid concrete wall.
It may even be argued that such exposed premises could entice and
tempt would-be criminals to the property, and that a see-thru fence
would be easier to bypass and breach. It also appears that the
respondents’ concrete wall has served as more than sufficient
protection over the last 40 years. `
As to the beautification purpose of the assailed ordinance, as
previously discussed, the State may not, under the guise of police
power, infringe on private rights solely for the sake of the aesthetic
appearance of the community. Similarly, the Court cannot perceive
how a see-thru fence will foster "neighborliness" between members
of a community.
Compelling the respondents to construct their fence in accordance
with the assailed ordinance is, thus, a clear encroachment on their
right to property, which necessarily includes their right to decide
how best to protect their property.
It also appears that requiring the exposure of their property via a
see-thru fence is violative of their right to privacy, considering that
82
the residence of the Benedictine nuns is also located within the
property. The right to privacy has long been considered a
fundamental right guaranteed by the Constitution that must be
protected from intrusion or constraint. The right to privacy is
essentially the right to be let alone,37 as governmental powers
should stop short of certain intrusions into the personal life of its
citizens.38 It is inherent in the concept of liberty, enshrined in the
Bill of Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17,
Article III of the 1987 Constitution.39
The enforcement of Section 3.1 would, therefore, result in an undue
interference with the respondents’ rights to property and privacy.
Section 3.1 of Ordinance No. 192 is, thus, also invalid and cannot
be enforced against the respondents.
No Retroactivity
Ordinance No. 217 amended Section 7 of Ordinance No. 192 by
including the regulation of educational institutions which was
unintentionally omitted, and giving said educational institutions five
(5) years from the passage of Ordinance No. 192 (and not
Ordinance No. 217) to conform to its provisions. 40 The petitioners
argued that the amendment could be retroactively applied because
the assailed ordinance is a curative statute which is retroactive in
nature.
Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot be
enforced against the respondents, it is no longer necessary to rule on
the issue of retroactivity. The Court shall, nevertheless, pass upon
the issue for the sake of clarity.
"Curative statutes are enacted to cure defects in a prior law or to
validate legal proceedings which would otherwise be void for want
of conformity with certain legal requirements. They are intended to
supply defects, abridge superfluities and curb certain evils. They are
intended to enable persons to carry into effect that which they have
designed or intended, but has failed of expected legal consequence
by reason of some statutory disability or irregularity in their own
action. They make valid that which, before the enactment of the
statute was invalid. Their purpose is to give validity to acts done
that would have been invalid under existing laws, as if existing laws
have been complied with. Curative statutes, therefore, by their very
essence, are retroactive."41
The petitioners argue that Ordinance No. 192 is a curative statute as
it aims to correct or cure a defect in the National Building Code,
namely, its failure to provide for adequate guidelines for the
construction of fences. They ultimately seek to remedy an
insufficiency in the law. In aiming to cure this insufficiency, the
petitioners attempt to add lacking provisions to the National
Building Code. This is not what is contemplated by curative
statutes, which intend to correct irregularities or invalidity in the
law. The petitioners fail to point out any irregular or invalid
provision. As such, the assailed ordinance cannot qualify as curative
and retroactive in nature.
At any rate, there appears to be no insufficiency in the National
Building Code with respect to parking provisions in relation to the
issue of the respondents. Paragraph 1.16.1, Rule XIX of the Rules
and Regulations of the said code requires an educational institution
 83

to provide one parking slot for every ten classrooms. As found by ROBERTO A. ABAD
the lower courts, the respondents provide a total of 76 parking slots Associate Justice
for their 80 classrooms and, thus, had more than sufficiently (On official leave)
complied with the law. JOSE PORTUGAL
PEREZ*
Ordinance No. 192, as amended, is, therefore, not a curative statute Associate Justice
which may be applied retroactively.
ESTELA M. PERLAS-
BERNABE
Separability Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
BIENVENIDO L. REYES
Associate Justice
MARVIC MARIO VICTOR F.
LEONEN
Associate Justice

Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus,
invalid and cannot be enforced against the respondents.
Nonetheless, "the general rule is that where part of a statute is void
as repugnant to the Constitution, while another part is valid, the
valid portion, if susceptible to being separated from the invalid, may
stand and be enforced."42 Thus, the other sections of the assailed
ordinance remain valid and enforceable.
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I hereby
certify that the conclusions in the above Decision had been reached
in consultation before the case was assigned to the writer of the
opinion of the Court.

Conclusion MARIA LOURDES P. A. SERENO

Chief Justice
Considering the invalidity of Sections 3.1 and 5, it is clear that the
petitioners were acting in excess of their jurisdiction in enforcing
Ordinance No. 192 against the respondents. The CA was correct in
affirming the decision of the RTC in issuing the writ of prohibition.
The petitioners must permanently desist from enforcing Sections
3.1 and 5 of the assailed ordinance on the respondents' property in
Marikina City.

WHEREFORE, the petition is DENIED. The October 2, 2002

Decision of the Regional Trial Court in SCA Case No. 2000-381-
MK is AFFIRMED but MODIFIED to read as follows:

WHEREFORE, the petition is GRANTED. The writ of prohibition

is hereby issued commanding the respondents to permanently desist
from enforcing or implementing Sections 3.1 and 5 of Ordinance
No. 192, Series of 1994, as amended, on the petitioners' property in
question located in Marikina Heights, Marikina, Metro Manila.

No pronouncement as to costs.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

MARIA LOURDES P. A.
ANTONIO T. CARPIO
SERENO
Associate Justice
Chief Justice
PRESBITERO J. TERESITA J. LEONARDO-DE
VELASCO, JR. CASTRO
Associate Justice Associate Justice
ARTURO D. BRION DISODADO M. PERALTA
Associate Justice Associate Justice
LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO
Associate Justice Associate Justice

EN BANC
August 8, 2017
G.R. No. 225442
SAMAHAN NG MGA PROGRESIBONG KABATAAN
(SPARK),* JOANNE ROSE SACE LIM, JOHN ARVIN
NAVARRO BUENAAGUA, RONEL BACCUTAN, MARK
LEO DELOS REYES, and CLARISSA JOYCE VILLEGAS,
minor, for herself and as represented by her father, JULIAN
VILLEGAS, JR., Petitioners,
vs.
QUEZON CITY, as represented by MAYOR HERBERT
BAUTISTA, CITY OF MANILA, as represented by MAYOR
JOSEPH ESTRADA, and NAVOTAS CITY, as represented by
MAYOR JOHN REY TIANGCO,, Respondents,
DECISION
PERLAS-BERNABE, J.:
This petition for certiorari and prohibition1 assails the
constitutionality of the curfew ordinances issued by the local
governments of Quezon City, Manila, and Navotas. The petition
prays that a temporary restraining order (TRO) be issued ordering
respondents Herbert Bautista, Joseph Estrada, and John Rey
Tiangco, as Mayors of their respective local governments, to
prohibit, refrain, and desist from implementing and enforcing these
issuances, pending resolution of this case, and eventually, declare
the City of Manila's ordinance as ultra vires for being contrary to
Republic Act No. (RA) 9344,2 or the "Juvenile Justice and Welfare
Act," as amended, and all curfew ordinances as unconstitutional for
violating the constitutional right of minors to travel, as well as the
right of parents to rear their children.
The Facts
Following the campaign of President Rodrigo Roa Duterte to
implement a nationwide curfew for minors, several local
governments in Metro Manila started to strictly implement their
curfew ordinances on minors through police operations which were
publicly known as part of "Oplan Rody."3
Among those local governments that implemented curfew
ordinances were respondents: (a) Navotas City, through Pambayang
Ordinansa Blg. 99- 02,4 dated August 26, 1999, entitled
"Nagtatakdang 'Curfew' ng mga Kabataan na Wala Pang Labing
Walong (18) Taong Gulang sa Bayan ng Navotas, Kalakhang
Maynila," as amended by Pambayang Ordinansa Blg. 2002-13,5
dated June 6, 2002 (Navotas Ordinance); (b) City of Manila,
through Ordinance No. 80466 entitled "An Ordinance Declaring the
Hours from 10:00 P.M. to 4:00 A.M. of the Following Day as
'Barangay Curfew Hours' for Children and Youths Below Eighteen
(18) Years of Age; Prescribing Penalties Therefor; and for Other
Purposes" dated October 14, 2002 (Manila Ordinance); and (c)
Quezon City, through Ordinance No. SP- 2301,7 Series of 2014,
entitled "An Ordinance Setting for a [sic] Disciplinary Hours in
Quezon City for Minors from 10:00 P.M. to 5:00 A.M., Providing
Penalties for Parent/Guardian, for Violation Thereof and for Other
84
Purposes" dated July 31, 2014 (Quezon City Ordinance;
collectively, Curfew Ordinances).8
Petitioners,9 spearheaded by the Samahan ng mga Progresibong
Kabataan (SPARK) - an association of young adults and minors
that aims to forward a free and just society, in particular the
protection of the rights and welfare of the youth and minors10 -
filed this present petition, arguing that the Curfew Ordinances are
unconstitutional because they: (a) result in arbitrary and
discriminatory enforcement, and thus, fall under the void for
vagueness doctrine; (b) suffer from overbreadth by proscribing or
impairing legitimate activities of minors during curfew hours; (c)
deprive minors of the right to liberty and the right to travel without
substantive due process; and (d) deprive parents of their natural and
primary right in rearing the youth without substantive due
process.11 In addition, petitioners assert that the Manila Ordinance
contravenes RA 9344, as amended by RA 10630.12
More specifically, petitioners posit that the Curfew Ordinances
encourage arbitrary and discriminatory enforcement as there are no
clear provisions or detailed standards on how law enforcers should
apprehend and properly determine the age of the alleged curfew
violators.13 They further argue that the law enforcer's apprehension
depends only on his physical assessment, and, thus, subjective and
based only on the law enforcer's visual assessment of the alleged
curfew violator.14
While petitioners recognize that the Curfew Ordinances contain
provisions indicating the activities exempted from the operation of
the imposed curfews, i.e., exemption of working students or
students with evening class, they contend that the lists of
exemptions do not cover the range and breadth of legitimate
activities or reasons as to why minors would be out at night, and,
hence, proscribe or impair the legitimate activities of minors during
curfew hours.15
Petitioners likewise proffer that the Curfew Ordinances: (a) are
unconstitutional as they deprive minors of the right to liberty and
the right to travel without substantive due process;16 and (b) fail to
pass the strict scrutiny test, for not being narrowly tailored and for
employing means that bear no reasonable relation to their
purpose.17 They argue that the prohibition of minors on streets
during curfew hours will not per se protect and promote the social
and moral welfare of children of the community.18
Furthermore, petitioners claim that the Manila Ordinance,
particularly Section 419 thereof, contravenes Section 57-A20 of RA
9344, as amended, given that the cited curfew provision imposes on
minors the penalties of imprisonment, reprimand, and admonition.
They contend that the imposition of penalties contravenes RA
9344's express command that no penalty shall be imposed on
minors for curfew violations.21
Lastly, petitioners submit that there is no compelling State interest
to impose curfews contrary to the parents' prerogative to impose
them in the exercise of their natural and primary right in the rearing
of the youth, and that even if a compelling interest exists, less
restrictive means are available to achieve the same. In this regard,
they suggest massive street lighting programs, installation of CCTV
s (closed-circuit televisions) in public streets, and regular visible

patrols by law enforcers as other viable means of protecting
children and preventing crimes at night. They further opine that the
government can impose more reasonable sanctions, i.e., mandatory
parental counseling and education seminars informing the parents of
the reasons behind the curfew, and that imprisonment is too harsh a
penalty for parents who allowed their children to be out during
curfew hours.22
The Issue Before the Court
The primordial issue for the Court's resolution in this case is
whether or not the Curfew Ordinances are unconstitutional.
The Court's Ruling
The petition is partly granted.
I.
At the onset, the Court addresses the procedural issues raised in this
case. Respondents seek the dismissal of the petition, questioning:
(a) the propriety of certiorari and prohibition under Rule 65 of the
Rules of Court to assail the constitutionality of the Curfew
Ordinances; (b) petitioners' direct resort to the Court, contrary to the
hierarchy of courts doctrine; and (c) the lack of actual controversy
and standing to warrant judicial review.23
A. Propriety of the Petition for
Certiorari and Prohibition.
Under the 1987 Constitution, judicial power includes the duty of the
courts of justice not only "to settle actual controversies involving
rights which are legally demandable and enforceable," but also "to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government."24 Section 1, Article VIII of
the 1987 Constitution reads:
ARTICLE VIII
JUDICIAL DEPARTMENT
Section 1. The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
Judicial power 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 abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government. (Emphasis and underscoring supplied)
Case law explains that the present Constitution has "expanded the
concept of judicial power, which up to then was confined to its
traditional ambit of settling actual controversies involving rights
that were legally demandable and enforceable."25
In Araullo v. Aquino III,26 it was held that petitions for certiorari
and prohibition filed before the Court "are the remedies by which
the grave abuse of discretion amounting to lack or excess of
85
jurisdiction on the part of any branch or instrumentality of the
Government may be determined under the Constitution."27 It was
explained that "[w]ith respect to the Court, x x x 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, [Article
VIII of the 1987 Constitution cited above]."28
In Association of Medical Clinics for Overseas Workers, Inc. v.
GCC Approved Medical Centers Association, Inc.,29 it was
expounded that "[ m ]eanwhile that no specific procedural rule has
been promulgated to enforce [the] 'expanded' constitutional
definition of judicial power and because of the commonality of
'grave abuse of discretion' as a ground for review under Rule 65 and
the courts' expanded jurisdiction, the Supreme Court - based on its
power to relax its rules - allowed Rule 65 to be used as the medium
for petitions invoking the courts' expanded jurisdiction[. ]"30
In this case, petitioners question the issuance of the Curfew
Ordinances by the legislative councils of Quezon City, Manila, and
Navotas in the exercise of their delegated legislative powers on the
ground that these ordinances violate the Constitution, specifically,
the provisions pertaining to the right to travel of minors, and the
right of parents to rear their children. They also claim that the
Manila Ordinance, by imposing penalties against minors, conflicts
with RA 9344, as amended, which prohibits the imposition of
penalties on minors for status offenses. It has been held that "[t]here
is grave abuse of discretion when an act is (1) done contrary to the
Constitution, the law or jurisprudence or (2) executed whimsically,
capriciously or arbitrarily, out of malice, ill will or personal bias.
"31 In light of the foregoing, petitioners correctly availed of the
remedies of certiorari and prohibition, although these governmental
actions were not made pursuant to any judicial or quasi-judicial
function.
B. Direct Resort to the Court.
Since petitions for certiorari and prohibition are allowed as
remedies to assail the constitutionality of legislative and executive
enactments, the next question to be resolved is whether or not
petitioners' direct resort to this Court is justified.
The doctrine of hierarchy of courts "[r]equires that recourse must
first be made to the lower-ranked court exercising concurrent
jurisdiction with a higher court. The Supreme Court has original
jurisdiction over petitions for certiorari, prohibition, mandamus,
quo warranto, and habeas corpus. While this jurisdiction is shared
with the Court of Appeals [(CA)] and the [Regional Trial Courts], a
direct invocation of this Court's jurisdiction is allowed when
there are special and important reasons therefor, clearly and
especially set out in the petition[.]"32 This Court is tasked to
resolve "the issue of constitutionality of a law or regulation at
the first instance [if it] is of paramount importance and
immediately affects the social, economic, and moral well-being

of the people,"33 as in this case. Hence, petitioners' direct resort to
the Court is justified.
C. Requisites of Judicial Review.
"The prevailing rule in constitutional litigation is that no question
involving the constitutionality or validity of a law or governmental
act may be heard and decided by the Court unless there is
compliance with the legal requisites for judicial inquiry, namely: (a)
there must be an actual case or controversy calling for the exercise
of judicial power; (b) the person challenging the act must have the
standing to question the validity of the subject act or issuance; (c)
the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the very
lis mota of the case."34 In this case, respondents assail the existence
of the first two (2) requisites.
1. Actual Case or Controversy.
"Basic in the exercise of judicial power - whether under the
traditional or in the expanded setting - is the presence of an actual
case or controversy."35 "[A]n actual case or controversy is one
which 'involves a conflict of legal rights, an assertion of opposite
legal claims, susceptible of judicial resolution as distinguished from
a hypothetical or abstract difference or dispute.' In other words,
'there must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and
jurisprudence."36 According to recent jurisprudence, in the Court's
exercise of its expanded jurisdiction under the 1987 Constitution,
this requirement is simplified "by merely requiring a prima facie
showing of grave abuse of discretion in the assailed
governmental act."37
"Corollary to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when
the act being challenged has had a direct adverse effect on the
individual challenging it. For a case to be considered ripe for
adjudication, it is a prerequisite that something has then been
accomplished or performed by either branch before a court
may come into the picture, and the petitioner must allege the
existence of an immediate or threatened injury to himself as a
result of the challenged action. He must show that he has
sustained or is immediately in danger of sustaining some direct
injury as a result of the act complained of."38
Applying these precepts, this Court finds that there exists an actual
justiciable controversy in this case given the evident clash of the
parties' legal claims, particularly on whether the Curfew Ordinances
impair the minors' and parents' constitutional rights, and whether the
Manila Ordinance goes against the provisions of RA 9344. Based
on their asseverations, petitioners have - as will be gleaned from the
substantive discussions below - conveyed a prima facie case of
grave abuse of discretion, which perforce impels this Court to
exercise its expanded jurisdiction. The case is likewise ripe for
adjudication, considering that the Curfew Ordinances were being
implemented until the Court issued the TRO39 enjoining their
enforcement. The purported threat or incidence of injury is,
therefore, not merely speculative or hypothetical but rather, real and
apparent.
86
2. Legal Standing.
"The question of locus standi or legal standing focuses on the
determination of whether those assailing the governmental act have
the right of appearance to bring the matter to the court for
adjudication. [Petitioners] must show that they have a personal and
substantial interest in the case, such that they have sustained or
are in immediate danger of sustaining, some direct injury as a
consequence of the enforcement of the challenged governmental
act."40 "' [I]nterest' in the question involved must be material - an
interest that is in issue and will be affected by the official act- as
distinguished from being merely incidental or general."41
"The gist of the question of [legal] 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. Unless a person
is injuriously affected in any of his constitutional rights by the
operation of statute or ordinance, he has no standing."42
As abovementioned, the petition is anchored on the alleged breach
of two (2) constitutional rights, namely: (1) the right of minors to
freely travel within their respective localities; and (2) the primary
right of parents to rear their children. Related to the first is the
purported conflict between RA 9344, as amended, and the penal
provisions of the Manila Ordinance.
Among the five (5) individual petitioners, only Clarissa Joyce
Villegas (Clarissa) has legal standing to raise the issue affecting the
minor's right to travel,43 because: (a) she was still a minor at the
time the petition was filed before this Court,44 and, hence, a proper
subject of the Curfew Ordinances; and (b) as alleged, she travels
from Manila to Quezon City at night after school and is, thus, in
imminent danger of apprehension by virtue of the Curfew
Ordinances. On the other hand, petitioners Joanne Rose Sace Lim,
John Arvin Navarro Buenaagua, Ronel Baccutan (Ronel), and Mark
Leo Delos Reyes (Mark Leo) admitted in the petition that they are
all of legal age, and therefore, beyond the ordinances' coverage.
Thus, they are not proper subjects of the Curfew Ordinances, for
which they could base any direct injury as a consequence thereof.
None of them, however, has standing to raise the issue of whether
the Curfew Ordinances violate the parents' right to rear their
children as they have not shown that they stand before this Court as
parent/s and/or guardian/s whose constitutional parental right has
been infringed. It should be noted that Clarissa is represented by her
father, Julian Villegas, Jr. (Mr. Villegas), who could have properly
filed the petition for himself for the alleged violation of his parental
right. But Mr. Villegas did not question the Curfew Ordinances
based on his primary right as a parent as he only stands as the
representative of his minor child, Clarissa, whose right to travel was
supposedly infringed.
As for SPARK, it is an unincorporated association and,
consequently, has no legal personality to bring an action in court.45
Even assuming that it has the capacity to sue, SPARK still has no
standing as it failed to allege that it was authorized by its members
who were affected by the Curfew Ordinances, i.e., the minors, to
file this case on their behalf.

Hence, save for Clarissa, petitioners do not have the required
personal interest in the controversy. More particularly, Clarissa has
standing only on the issue of the alleged violation of the minors'
right to travel, but not on the alleged violation of the parents' right.
These notwithstanding, this Court finds it proper to relax the
standing requirement insofar as all the petitioners are concerned, in
view of the transcendental importance of the issues involved in this
case. "In a number of cases, this Court has taken a liberal stance
towards the requirement of legal standing, especially when
paramount interest is involved. Indeed, when those who challenge
the official act are able to craft an issue of transcendental
significance to the people, the Court may exercise its sound
discretion and take cognizance of the suit. It may do so in spite of
the inability of the petitioners to show that they have been
personally injured by the operation of a law or any other
government act."46
This is a case of first impression in which the constitutionality of
juvenile curfew ordinances is placed under judicial review. Not only
is this Court asked to determine the impact of these issuances on the
right of parents to rear their children and the right of minors to
travel, it is also requested to determine the extent of the State's
authority to regulate these rights in the interest of general welfare.
Accordingly, this case is of overarching significance to the public,
which, therefore, impels a relaxation of procedural rules, including,
among others, the standing requirement.
That being said, this Court now proceeds to the substantive aspect
of this case.
II.
A. Void for Vagueness.
Before resolving the issues pertaining to the rights of minors to
travel and of parents to rear their children, this Court must first
tackle petitioners' contention that the Curfew Ordinances are void
for vagueness.
In particular, petitioners submit that the Curfew Ordinances are void
for not containing sufficient enforcement parameters, which leaves
the enforcing authorities with unbridled discretion to carry out their
provisions. They claim that the lack of procedural guidelines in
these issuances led to the questioning of petitioners Ronel and Mark
Leo, even though they were already of legal age. They maintain that
the enforcing authorities apprehended the suspected curfew
offenders based only on their physical appearances and, thus, acted
arbitrarily. Meanwhile, although they conceded that the Quezon
City Ordinance requires enforcers to determine the age of the child,
they submit that nowhere does the said ordinance require the law
enforcers to ask for proof or identification of the child to show his
age.47
The arguments are untenable.
"A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two (2) respects: (1) it violates due
87
process for failure to accord persons, especially the parties
targeted by it, fair notice of the conduct to avoid; and (2) it
leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government
muscle."48
In this case, petitioners' invocation of the void for vagueness
doctrine is improper, considering that they do not properly identify
any provision in any of the Curfew Ordinances, which, because of
its vague terminology, fails to provide fair warning and notice to the
public of what is prohibited or required so that one may act
accordingly.49 The void for vagueness doctrine is premised on
due process considerations, which are absent from this particular
claim. In one case, it was opined that:
[T]he vagueness doctrine is a specie of "unconstitutional
uncertainty," which may involve "procedural due process
uncertainty cases" and "substantive due process uncertainty cases."
"Procedural due process uncertainty" involves cases where the
statutory language was so obscure that it failed to give adequate
warning to those subject to its prohibitions as well as to provide
proper standards for adjudication. Such a definition encompasses
the vagueness doctrine. This perspective rightly integrates the
vagueness doctrine with the due process clause, a necessary
interrelation since there is no constitutional provision that explicitly
bars statutes that are "void-for-vagueness."50
Essentially, petitioners only bewail the lack of enforcement
parameters to guide the local authorities in the proper apprehension
of suspected curfew offenders. They do not assert any confusion
as to what conduct the subject ordinances prohibit or not
prohibit but only point to the ordinances' lack of enforcement
guidelines. The mechanisms related to the implementation of the
Curfew Ordinances are, however, matters of policy that are best left
for the political branches of government to resolve. Verily, the
objective of curbing unbridled enforcement is not the sole
consideration in a void for vagueness analysis; rather, petitioners
must show that this perceived danger of unbridled enforcement
stems from an ambiguous provision in the law that allows
enforcement authorities to second-guess if a particular conduct is
prohibited or not prohibited. In this regard, that ambiguous
provision of law contravenes due process because agents of the
government cannot reasonably decipher what conduct the law
permits and/or forbids. In Bykofsky v. Borough of Middletown, 51 it
was ratiocinated that:
A vague law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on ad hoc and
subjective basis, and vague standards result in erratic and arbitrary
application based on individual impressions and personal
predilections.52
As above-mentioned, petitioners fail to point out any ambiguous
standard in any of the provisions of the Curfew Ordinances, but
rather, lament the lack of detail on how the age of a suspected minor
would be determined. Thus, without any correlation to any vague
legal provision, the Curfew Ordinances cannot be stricken down
under the void for vagueness doctrine.

Besides, petitioners are mistaken in claiming that there are no
sufficient standards to identify suspected curfew violators. While it
is true that the Curfew Ordinances do not explicitly state these
parameters, law enforcement agents are still bound to follow the
prescribed measures found in statutory law when implementing
ordinances. Specifically, RA 9344, as amended, provides:
Section 7. Determination of Age. - x x x The age of a child may be
determined from the child's birth certificate, baptismal
certificate or any other pertinent documents. In the absence of
these documents, age may be based on information from the child
himself/herself, testimonies of other persons, the physical
appearance of the child and other relevant evidence. (Emphases
supplied)
This provision should be read in conjunction with · the Curfew
Ordinances because RA 10630 (the law that amended RA 9344)
repeals all ordinances inconsistent with statutory law.53 Pursuant to
Section 57-A of RA 9344, as amended by RA 10630,54 minors
caught in violation of curfew ordinances are children at risk
and, therefore, covered by its provisions.55 It is a long-standing
principle that "[c]onformity with law is one of the essential
requisites for the validity of a municipal ordinance."56 Hence,
by necessary implication, ordinances should be read and
implemented in conjunction with related statutory law.
Applying the foregoing, any person, such as petitioners Ronel and
Mark Leo, who was perceived to be a minor violating the curfew,
may therefore prove that he is beyond the application of the Curfew
Ordinances by simply presenting any competent proof of
identification establishing their majority age. In the absence of such
proof, the law authorizes enforcement authorities to conduct a
visual assessment of the suspect, which - needless to state - should
be done ethically and judiciously under the circumstances. Should
law enforcers disregard these rules, the remedy is to pursue the
appropriate action against the erring enforcing authority, and not to
have the ordinances invalidated.
All told, petitioners' prayer to declare the Curfew Ordinances as
void for vagueness is denied.
B. Right of Parents to Rear their
Children.
Petitioners submit that the Curfew Ordinances are unconstitutional
because they deprive parents of their natural and primary right in
the rearing of the youth without substantive due process. In this
regard, they assert that this right includes the right to determine
whether minors will be required to go home at a certain time or will
be allowed to stay late outdoors. Given that the right to impose
curfews is primarily with parents and not with the State, the latter's
interest in imposing curfews cannot logically be compelling.57
Petitioners' stance cannot be sustained.
Section 12, Article II of the 1987 Constitution articulates the State's
policy relative to the rights of parents in the rearing of their
children:
88
Section 12. The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life
of the unborn from conception. The natural and primary right
and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive
the support of the Government. (Emphasis and underscoring
supplied.)
As may be gleaned from this provision, the rearing of children (i.e.,
referred to as the "youth") for civic efficiency and the development
of their moral character are characterized not only as parental rights,
but also as parental duties. This means that parents are not only
given the privilege of exercising their authority over their children;
they are equally obliged to exercise this authority conscientiously.
The duty aspect of this provision is a reflection of the State's
independent interest to ensure that the youth would eventually grow
into free, independent, and well-developed citizens of this nation.
For indeed, it is during childhood that minors are prepared for
additional obligations to society. "[T]he duty to prepare the child
for these [obligations] must be read to include the inculcation of
moral standards, religious beliefs, and elements of good
citizenship."58 "This affirmative process of teaching, guiding, and
inspiring by precept and example is essential to the growth of young
people into mature, socially responsible citizens."59
By history and tradition, "the parental role implies a substantial
measure of authority over one's children."60 In Ginsberg v. New
York,61 the Supreme Court of the United States (US) remarked that
"constitutional interpretation has consistently recognized that the
parents' claim to authority in their own household to direct the
rearing of their children is basic in the structure of our society."62
As in our Constitution, the right and duty of parents to rear their
children is not only described as "natural," but also as "primary."
The qualifier "primary" connotes the parents' superior right
over the State in the upbringing of their children.63 The
rationale for the State's deference to parental control over their
children was explained by the US Supreme Court in Bellotti v.
Baird (Bellotti),64 as follows:
[T]he guiding role of parents in their upbringing of their children
justifies limitations on the freedoms of minors. The State commonly
protects its youth from adverse governmental action and from their
own immaturity by requiring parental consent to or involvement in
important decisions by minors. But an additional and more
important justification for state deference to parental control
over children is that "the child is not [a) mere creature of the
State; those who nurture him and direct his destiny have the
right, coupled with the high duty, to recognize and prepare him
for additional obligations."65 (Emphasis and underscoring
supplied)
While parents have the primary role in child-rearing, it should be
stressed that "when actions concerning the child have a relation
to the public welfare or the well-being of the child, the [Sltate
may act to promote these legitimate interests."66 Thus, "[i]n
cases in which harm to the physical or mental health of the child
or to public safety, peace, order, or welfare is demonstrated,
these legitimate state interests may override the parents'
qualified right to control the upbringing of their children."67

As our Constitution itself provides, the State is mandated to
support parents in the exercise of these rights and duties. State
authority is therefore, not exclusive of, but rather,
complementary to parental supervision. In Nery v. Lorenzo,68
this Court acknowledged the State's role as parens patriae in
protecting minors, viz. :
[Where minors are involved, the State acts as parens patriae. To
it is cast the duty of protecting the rights of persons or
individual who because of age or incapacity are in an
unfavorable position, vis-a-vis other parties. Unable as they are to
take due care of what concerns them, they have the political
community to look after their welfare. This obligation the state must
live up to. It cannot be recreant to such a trust. As was set forth in
an opinion of the United States Supreme Court: "This prerogative
of parens patriae is inherent in the supreme power of every
State, x x x."69 (Emphases and underscoring supplied)
As parens patriae, the State has the inherent right and duty to
aid parents in the moral development of their children,70 and,
thus, assumes a supporting role for parents to fulfill their parental
obligations. In Bellotti, it was held that "[I]egal restriction on
minors, especially those supportive of the parental role, may be
important to the child's chances for the full growth and maturity that
make eventual participation in a free society meaningful and
rewarding. Under the Constitution, the State can properly
conclude that parents and others, teachers for example, who
have the primary responsibility for children's well-being are
entitled to the support of the laws designed to aid discharge of
that responsibility."71
The Curfew Ordinances are but examples of legal restrictions
designed to aid parents in their role of promoting their children's
well-being. As will be later discussed at greater length, these
ordinances further compelling State interests (particularly, the
promotion of juvenile safety and the prevention of juvenile crime),
which necessarily entail limitations on the primary right of parents
to rear their children. Minors, because of their peculiar vulnerability
and lack of experience, are not only more exposed to potential
physical harm by criminal elements that operate during the night;
their moral well-being is likewise imperiled as minor children are
prone to making detrimental decisions during this time.72
At this juncture, it should be emphasized that the Curfew
Ordinances apply only when the minors are not - whether actually
or constructively (as will be later discussed) - accompanied by their
parents. This serves as an explicit recognition of the State's
deference to the primary nature of parental authority and the
importance of parents' role in child-rearing. Parents are effectively
given unfettered authority over their children's conduct during
curfew hours when they are able to supervise them. Thus, in all
actuality, the only aspect of parenting that the Curfew
Ordinances affects is the parents' prerogative to allow minors to
remain in public places without parental accompaniment
during the curfew hours. 73 In this respect, the ordinances
neither dictate an over-all plan of discipline for the parents to
apply to their minors nor force parents to abdicate their
authority to influence or control their minors' activities.74 As
such, the Curfew Ordinances only amount to a minimal - albeit
reasonable - infringement upon a parent's right to bring up his or her
child.
89
Finally, it may be well to point out that the Curfew Ordinances
positively influence children to spend more time at home.
Consequently, this situation provides parents with better
opportunities to take a more active role in their children's
upbringing. In Schleifer v. City of Charlottesvillle (Schleifer),75 the
US court observed that the city government "was entitled to believe
x x x that a nocturnal curfew would promote parental involvement
in a child's upbringing. A curfew aids the efforts of parents who
desire to protect their children from the perils of the street but are
unable to control the nocturnal behavior of those children."76
Curfews may also aid the "efforts of parents who prefer their
children to spend time on their studies than on the streets."77
Reason dictates that these realities observed in Schleifer are no less
applicable to our local context. Hence, these are additional reasons
which justify the impact of the nocturnal curfews on parental rights.
In fine, the Curfew Ordinances should not be declared
unconstitutional for violating the parents' right to rear their children.
C. Right to Travel.
Petitioners further assail the constitutionality of the Curfew
Ordinances based on the minors' right to travel. They claim that the
liberty to travel is a fundamental right, which, therefore,
necessitates the application of the strict scrutiny test. Further, they
submit that even if there exists a compelling State interest, such as
the prevention of juvenile crime and the protection of minors from
crime, there are other less restrictive means for achieving the
government's interest.78 In addition, they posit that the Curfew
Ordinances suffer from overbreadth by proscribing or impairing
legitimate activities of minors during curfew hours.79
Petitioner's submissions are partly meritorious.
At the outset, the Court rejects petitioners' invocation of the
overbreadth doctrine, considering that petitioners have not claimed
any transgression of their rights to free speech or any inhibition of
speech-related conduct. In Southern Hemisphere Engagement
Network, Inc. v. AntiTerrorism Council(Southern Hemisphere),80
this Court explained that "the application of the overbreadth
doctrine is limited to a facial kind of challenge and, owing to the
given rationale of a facial challenge, applicable only to free speech
cases,"81 viz.:
By its nature, the overbreadth doctrine has to necessarily apply
a facial type of invalidation in order to plot areas of protected
speech, inevitably almost always under situations not before the
court, that are impermissibly swept by the substantially overbroad
regulation. Otherwise stated, a statute cannot be properly analyzed
for being substantially overbroad if the court confines itself only to
facts as applied to the litigants.
The most distinctive feature of the overbreadth technique is that it
marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights
of third parties and can only assert their own interests. In

overbreadth analysis, those rules give way; challenges are permitted
to raise the rights of third parties; and the court invalidates the entire
statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized
court construes it more narrowly. The factor that motivates courts
to depart from the normal adjudicatory rules is the concern
with the "chilling;" deterrent effect of the overbroad statute on
third parties not courageous enough to bring suit. The Court
assumes that an overbroad law's "very existence may cause others
not before the court to refrain from constitutionally protected speech
or expression." An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.82
(Emphases and underscoring supplied)
In the same case, it was further pointed out that "[i]n restricting the
overbreadth doctrine to free speech claims, the Court, in at least two
[(2)] cases, observed that the US Supreme Court has not recognized
an overbreadth doctrine outside the limited context of the First
Amendment,83 and that claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words. In Virginia v. Hicks,84 it was held that
rarely, if ever, will an overbreadth challenge succeed against a law
or regulation that is not specifically addressed to speech or speech-
related conduct. Attacks on overly broad statutes are justified by the
'transcendent value to all society of constitutionally protected
expression. "'85
In the more recent case of SpousesImbong v. Ochoa, Jr.,86 it was
opined that "[f]acial challenges can only be raised on the basis of
overbreadth and not on vagueness. Southern Hemisphere
demonstrated how vagueness relates to violations of due process
rights, whereas facial challenges are raised on the basis of
overbreadth and limited to the realm of freedom of
expression."87
That being said, this Court finds it improper to undertake an
overbreadth analysis in this case, there being no claimed curtailment
of free speech. On the contrary, however, this Court finds proper to
examine the assailed regulations under the strict scrutiny test.
The right to travel is recognized and guaranteed as a fundamental
right88 under Section 6, Article III of the 1987 Constitution, to wit:
Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public
health, as may be provided by law. (Emphases and underscoring
supplied)
Jurisprudence provides that this right refers to the right to move
freely from the Philippines to other countries or within the
Philippines.89 It is a right embraced within the general concept of
liberty.90 Liberty - a birthright of every person - includes the power
of locomotion91 and the right of citizens to be free to use their
faculties in lawful ways and to live and work where they desire or
where they can best pursue the ends of life.92
The right to travel is essential as it enables individuals to access and
exercise their other rights, such as the rights to education, free
90
expression, assembly, association, and religion.93 The inter-relation
of the right to travel with other fundamental rights was briefly
rationalized in City of Maquoketa v. Russell,94 as follows:
Whenever the First Amendment rights of freedom of religion,
speech, assembly, and association require one to move about, such
movement must necessarily be protected under the First
Amendment.
Restricting movement in those circumstances to the extent that
First Amendment Rights cannot be exercised without violating
the law is equivalent to a denial of those rights. One court has
eloquently pointed this out:
We would not deny the relatedness of the rights guaranteed by
the First Amendment to freedom of travel and movement. If, for
any reason, people cannot walk or drive to their church, their
freedom to worship is impaired. If, for any reason, people cannot
walk or drive to the meeting hall, freedom of assembly is effectively
blocked. If, for any reason, people cannot safely walk the sidewalks
or drive the streets of a community, opportunities for freedom of
speech are sharply limited. Freedom of movement is inextricably
involved with freedoms set forth in the First Amendment.
(Emphases supplied)
Nevertheless, grave and overriding considerations of public interest
justify restrictions even if made against fundamental rights.
Specifically on the freedom to move from one place to another,
jurisprudence provides that this right is not absolute.95 As the 1987
Constitution itself reads, the State96 may impose limitations on the
exercise of this right, provided that they: (1) serve the interest of
national security, public safety, or public health; and (2) are
provided by law.97
The stated purposes of the Curfew Ordinances, specifically the
promotion of juvenile safety and prevention of juvenile crime,
inarguably serve the interest of public safety. The restriction on the
minor's movement and activities within the confines of their
residences and their immediate vicinity during the curfew period is
perceived to reduce the probability of the minor becoming victims
of or getting involved in crimes and criminal activities. As to the
second requirement, i.e., that the limitation "be provided by law,"
our legal system is replete with laws emphasizing the State's duty to
afford special protection to children, i.e., RA 7610,98 as amended,
RA 977599 RA 9262100 RA 9851101RA 9344102 RA 10364103
RA 9211104 RA8980,105 RA9288,106 and Presidential Decree
(PD) 603,107 as amended.
Particularly relevant to this case is Article 139 of PD 603, which
explicitly authorizes local government units, through their city or
municipal councils, to set curfew hours for children. It reads:
Article 139. Curfew Hours for Children. - City or municipal
councils may prescribe such curfew hours for children as may
be warranted by local conditions. The duty to enforce curfew
ordinances shall devolve upon the parents or guardians and the local
authorities.
x x x x (Emphasis and underscoring supplied)

As explicitly worded, city councils are authorized to enact curfew
ordinances (as what respondents have done in this case) and enforce
the same through their local officials. In other words, PD 603
provides sufficient statutory basis - as required by the Constitution -
to restrict the minors' exercise of the right to travel.
The restrictions set by the Curfew Ordinances that apply solely to
minors are likewise constitutionally permissible. In this relation,
this Court recognizes that minors do possess and enjoy
constitutional rights,108 but the exercise of these rights is not co-
extensive as those of adults.109 They are always subject to the
authority or custody of another, such as their parent/s and/or
guardian/s, and the State.110 As parens patriae, the State regulates
and, to a certain extent, restricts the minors' exercise of their rights,
such as in their affairs concerning the right to vote,111 the right to
execute contracts,112 and the right to engage in gainful
employment.113 With respect to the right to travel, minors are
required by law to obtain a clearance from the Department of Social
Welfare and Development before they can travel to a foreign
country by themselves or with a person other than their parents.114
These limitations demonstrate that the State has broader authority
over the minors' activities than over similar actions of adults,115
and overall, reflect the State's general interest in the well-being of
minors.116 Thus, the State may impose limitations on the minors'
exercise of rights even though these limitations do not generally
apply to adults.
In Bellotti,117the US Supreme Court identified three (3)
justifications for the differential treatment of the minors'
constitutional rights. These are: first, the peculiar vulnerability of
children; second, their inability to make critical decisions in an
informed and mature manner; and third, the importance of the
parental role in child rearing:118
[On the first reason,] our cases show that although children
generally are protected by the same constitutional guarantees
against governmental deprivations as are adults, the State is
entitled to adjust its legal system to account for children's
vulnerability and their needs for 'concern, ... sympathy, and ...
paternal attention.x x x.
[On the second reason, this Court's rulings are] grounded [on] the
recognition that, during the formative years of childhood and
adolescence, minors often lack the experience, perspective, and
judgment to recognize and avoid choices that could be
detrimental to them. x x x.
xxxx
[On the third reason,] the guiding role of parents in the upbringing
of their children justifies limitations on the freedoms of minors. The
State commonly protects its youth from adverse governmental
action and from their own immaturity by requiring parental consent
to or involvement in important decisions by minors. x x x.
xxxx
x x x Legal restrictions on minors, especially those supportive of
the parental role, may be important to the child's chances for
the full growth and maturity that make eventual participation in a
91
free society meaningful and rewarding.119 (Emphases and
underscoring supplied)
Moreover, in Prince v. Massachusetts,120 the US Supreme Court
acknowledged the heightened dangers on the streets to minors, as
compared to adults:
A democratic society rests, for its continuance, upon the healthy,
well-rounded growth of young people into full maturity as citizens,
with all that implies. It may secure this against impeding restraints
and dangers within a broad range of selection. Among evils most
appropriate for such action are the crippling effects of child
employment, more especially in public places, and the possible
harms arising from other activities subject to all the diverse
influences of the [streets]. It is too late now to doubt that
legislation appropriately designed to reach such evils is within the
state's police power, whether against the parent's claim to control of
the child or one that religious scruples dictate contrary action.
It is true children have rights, in common with older people, in the
primary use of highways. But even in such use streets afford
dangers for them not affecting adults. And in other uses,
whether in work or in other things, this difference may be
magnified.121 (Emphases and underscoring supplied)
For these reasons, the State is justified in setting restrictions on the
minors' exercise of their travel rights, provided, they are singled out
on reasonable grounds.
Philippine jurisprudence has developed three (3) tests of judicial
scrutiny to determine the reasonableness of classifications.122 The
strict scrutiny test applies when a classification either (i) interferes
with the exercise of fundamental rights, including the basic liberties
guaranteed under the Constitution, or (ii) burdens suspect
classes.123 The intermediate scrutiny test applies when a
classification does not involve suspect classes or fundamental
rights, but requires heightened scrutiny, such as in classifications
based on gender and legitimacy.124 Lastly, the rational basis test
applies to all other subjects not covered by the first two tests.125
Considering that the right to travel is a fundamental right in our
legal system guaranteed no less by our Constitution, the strict
scrutiny test126 is the applicable test.127 At this juncture, it should
be emphasized that minors enjoy the same constitutional rights as
adults; the fact that the State has broader authority over minors than
over adults does not trigger the application of a lower level of
scrutiny.128 In Nunez v. City of San Diego (Nunez),129 the US
court illumined that:
Although many federal courts have recognized that juvenile curfews
implicate the fundamental rights of minors, the parties dispute
whether strict scrutiny review is necessary. The Supreme Court
teaches that rights are no less "fundamental" for minors than
adults, but that the analysis of those rights may differ:
Constitutional rights do not mature and come into being
magically only when one attains the state-defined age of
majority.1âwphi1 Minors, as well as adults, are protected by the
Constitution and possess constitutional rights. The Court[,]
indeed, however, [has long] recognized that the State has somewhat

broader authority to regulate the activities of children than of adults.
xxx. Thus, minors' rights are not coextensive with the rights of
adults because the state has a greater range of interests that
justify the infringement of minors' rights.
The Supreme Court has articulated three specific factors that, when
applicable, warrant differential analysis of the constitutional rights
of minors and adults: x x x. The Bellotti test [however] does not
establish a lower level of scrutiny for the constitutional rights of
minors in the context of a juvenile curfew. Rather, the Bellotti
framework enables courts to determine whether the state has a
compelling state interest justifying greater restrictions on minors
than on adults. x x x.
x x x Although the state may have a compelling interest in
regulating minors differently than adults, we do not believe that
[a] lesser degree of scrutiny is appropriate to review burdens on
minors' fundamental rights. x x x.
According, we apply strict scrutiny to our review of the ordinance. x
x x.130 (Emphases supplied)
The strict scrutiny test as applied to minors entails a
consideration of the peculiar circumstances of minors as
enumerated in Bellotti vis-a-vis the State's duty as parenspatriae to
protect and preserve their well-being with the compelling State
interests justifying the assailed government act. Under the strict
scrutiny test, a legislative classification that interferes with the
exercise of a fundamental right or operates to the disadvantage of a
suspect class is presumed unconstitutional.131 Thus, the
government has the burden of proving that the classification (1)
is necessary to achieve a compelling State interest, and (i1) is the
least restrictive means to protect such interest or the means
chosen is narrowly tailored to accomplish the interest.132
a. Compelling State Interest.
Jurisprudence holds that compelling State interests include
constitutionally declared policies.133 This Court has ruled that
children's welfare and the State's mandate to protect and care
for them as parenspatriae constitute compelling interests to
justify regulations by the State.134 It is akin to the paramount
interest of the state for which some individual liberties must give
way.135 As explained in Nunez, the Bellotti framework shows that
the State has a compelling interest in imposing greater restrictions
on minors than on adults. The limitations on minors under
Philippine laws also highlight this compelling interest of the State to
protect and care for their welfare.
In this case, respondents have sufficiently established that the
ultimate objective of the Curfew Ordinances is to keep unsupervised
minors during the late hours of night time off of public areas, so as
to reduce - if not totally eliminate - their exposure to potential harm,
and to insulate them against criminal pressure and influences which
may even include themselves. As denoted in the "whereas clauses"
of the Quezon City Ordinance, the State, in imposing nocturnal
curfews on minors, recognizes that:
[b] x x x children, particularly the minors, appear to be neglected of
their proper care and guidance, education, and moral development,
92
which [lead] them into exploitation, drug addiction, and become
vulnerable to and at the risk of committing criminal offenses;
xxxx
[d] as a consequence, most of minor children become out-of-school
youth, unproductive by-standers, street children, and member of
notorious gangs who stay, roam around or meander in public or
private roads, streets or other public places, whether singly or in
groups without lawful purpose or justification;
xxxx
[f] reports of barangay officials and law enforcement agencies
reveal that minor children roaming around, loitering or wandering
in the evening are the frequent personalities involved in various
infractions of city ordinances and national laws;
[g] it is necessary in the interest of public order and safety to
regulate the movement of minor children during night time by
setting disciplinary hours, protect them from neglect, abuse or
cruelty and exploitation, and other conditions prejudicial or
detrimental to their development;
[h] to strengthen and support parental control on these minor
children, there is a need to put a restraint on the tendency of
growing number of youth spending their nocturnal activities
wastefully, especially in the face of the unabated rise of criminality
and to ensure that the dissident elements of society are not provided
with potent avenues for furthering their nefarious activities[.]136
The US court's judicial demeanor in Schleifer,137 as regards the
information gathered by the City Council to support its passage of
the curfew ordinance subject of that case, may serve as a guidepost
to our own eatment of the present case. Significantly, in Schleifer,
the US court recognized the entitlement of elected bodies to
implement policies for a safer community, in relation to the
proclivity of children to make dangerous and potentially life-
shaping decisions when left unsupervised during the late hours of
night:
Charlottesville was constitutionally justified in believing that its
curfew would materially assist its first stated interest-that of
reducing juvenile violence and crime. The City Council acted on the
basis of information from many sources, including records from
Charlottesville's police department, a survey of public opinion,
news reports, data from the United States Department of Justice,
national crime reports, and police reports from other localities. On
the basis of such evidence, elected bodies are entitled to
conclude that keeping unsupervised juveniles off the streets late
at night will make for a safer community. The same streets may
have a more volatile and less wholesome character at night than
during the day. Alone on the streets at night children face a
series of dangerous and potentially life-shaping decisions. Drug
dealers may lure them to use narcotics or aid in their sale. Gangs
may pressure them into membership or participation in violence.
"[D]uring the formative years of childhood and adolescence, minors
often lack the experience, perspective, and judgment to recognize
and avoid choices that could be detrimental to them." Those who
succumb to these criminal influences at an early age may persist

in their criminal conduct as adults. Whether we as judges
subscribe to these theories is beside the point. Those elected
officials with their finger on the pulse of their home community
clearly did. In attempting to reduce through its curfew the
opportunities for children to come into contact with criminal
influences, the City was directly advancing its first objective of
reducing juvenile violence and crime.138 (Emphases and
underscoring supplied; citations omitted)
Similar to the City of Charlottesville in Schleifer, the local
governments of Quezon City and Manila presented statistical data in
their respective pleadings showing the alarming prevalence of
crimes involving juveniles, either as victims or perpetrators, in their
respective localities.139
Based on these findings, their city councils found it necessary to
enact curfew ordinances pursuant to their police power under the
general welfare clause.140 In this light, the Court thus finds that the
local governments have not only conveyed but, in fact,
attempted to substantiate legitimate concerns on public welfare,
especially with respect to minors. As such, a compelling State
interest exists for the enactment and enforcement of the Curfew
Ordinances.
With the first requirement of the strict scrutiny test satisfied, the
Court now proceeds to determine if the restrictions set forth in· the
Curfew Ordinances are narrowly tailored or provide the least
restrictive means to address the cited compelling State interest - the
second requirement of the strict scrutiny test.
b. Least Restrictive Means/ Narrowly Drawn.
The second requirement of the strict scrutiny test stems from the
fundamental premise that citizens should not be hampered from
pursuing legitimate activities in the exercise of their constitutional
rights. While rights may be restricted, the restrictions must be
minimal or only to the extent necessary to achieve the purpose or to
address the State's compelling interest. When it is possible for
governmental regulations to be more narrowly drawn to avoid
conflicts with constitutional rights, then they must be so
narrowly drawn. 141
Although treated differently from adults, the foregoing standard
applies to regulations on minors as they are still accorded the
freedom to participate in any legitimate activity, whether it be
social, religious, or civic.142 Thus, in the present case, each of the
ordinances must be narrowly tailored as to ensure minimal
constraint not only on the minors' right to travel but also on their
other constitutional rights.143
In In Re Mosier,144 a US court declared a curfew ordinance
unconstitutional impliedly for not being narrowly drawn, resulting
in unnecessary curtailment of minors' rights to freely exercise their
religion and to free speech.145 It observed that:
The ordinance prohibits the older minor from attending alone
Christmas Eve Midnight Mass at the local Roman Catholic
Church or Christmas Eve services at the various local
Protestant Churches. It would likewise prohibit them from
attending the New [Year's] Eve watch services at the various
93
churches. Likewise it would prohibit grandparents, uncles, aunts or
adult brothers and sisters from taking their minor relatives of any
age to the above mentioned services. x x x.
xxxx
Under the ordinance, during nine months of the year a minor could
not even attend the city council meetings if they ran past 10:30
(which they frequently do) to express his views on the necessity to
repeal the curfew ordinance, clearly a deprivation of his First
Amendment right to freedom of speech.
xxxx
[In contrast, the ordinance in Bykofsky v. Borough of Middletown
(supra note 52)] was [a] very narrowly drawn ordinance of many
pages with eleven exceptions and was very carefully drafted in an
attempt to pass constitutional muster. It specifically excepted [the]
exercise of First Amendment rights, travel in a motor vehicle
and returning home by a direct route from religious, school, or
voluntary association activities. (Emphases supplied)
After a thorough evaluation of the ordinances' respective provisions,
this Court finds that only the Quezon City Ordinance meets the
above-discussed requirement, while the Manila and Navotas
Ordinances do not.
The Manila Ordinance cites only four (4) exemptions from the
coverage of the curfew, namely: (a) minors accompanied by their
parents, family members of legal age, or guardian; (b) those running
lawful errands such as buying of medicines, using of
telecommunication facilities for emergency purposes and the like;
(c) night school students and those who, by virtue of their
employment, are required in the streets or outside their residence
after 10:00 p.m.; and (d) those working at night.146
For its part, the Navotas Ordinance provides more exceptions, to
wit: (a) minors with night classes; (b) those working at night; (c)
those who attended a school or church activity, in coordination with
a specific barangay office; (d) those traveling towards home during
the curfew hours; (e) those running errands under the supervision of
their parents, guardians, or persons of legal age having authority
over them; (j) those involved in accidents, calamities, and the like.
It also exempts minors from the curfew during these specific
occasions: Christmas eve, Christmas day, New Year's eve, New
Year's day, the night before the barangay fiesta, the day of the
fiesta, All Saints' and All Souls' Day, Holy Thursday, Good Friday,
Black Saturday, and Easter Sunday.147
This Court observes that these two ordinances are not narrowly
drawn in that their exceptions are inadequate and therefore, run the
risk of overly restricting the minors' fundamental freedoms. To be
fair, both ordinances protect the rights to education, to gainful
employment, and to travel at night from school or work.148
However, even with those safeguards, the Navotas Ordinance and,
to a greater extent, the Manila Ordinance still do not account for the
reasonable exercise of the minors' rights of association, free
exercise of religion, rights to peaceably assemble, and of free
expression, among others.

The exceptions under the Manila Ordinance are too limited, and
thus, unduly trample upon protected liberties. The Navotas
Ordinance is apparently more protective of constitutional rights than
the Manila Ordinance; nonetheless, it still provides insufficient
safeguards as discussed in detail below:
First, although it allows minors to engage in school or church
activities, it hinders them from engaging in legitimate non-school or
nonchurch activities in the streets or going to and from such
activities; thus, their freedom of association is effectively curtailed.
It bears stressing that participation in legitimate activities of
organizations, other than school or church, also contributes to the
minors' social, emotional, and intellectual development, yet, such
participation is not exempted under the Navotas Ordinance.
Second, although the Navotas Ordinance does not impose the
curfew during Christmas Eve and Christmas day, it effectively
prohibits minors from attending traditional religious activities (such
as simbang gabi) at night without accompanying adults, similar to
the scenario depicted in Mosier.149 This legitimate activity done
pursuant to the minors' right to freely exercise their religion is
therefore effectively curtailed.
Third, the Navotas Ordinance does not accommodate avenues for
minors to engage in political rallies or attend city council meetings
to voice out their concerns in line with their right to peaceably
assemble and to free expression.
Certainly, minors are allowed under the Navotas Ordinance to
engage in these activities outside curfew hours, but the Court finds
no reason to prohibit them from participating in these legitimate
activities during curfew hours. Such proscription does not advance
the State's compelling interest to protect minors from the dangers of
the streets at night, such as becoming prey or instruments of
criminal activity. These legitimate activities are merely hindered
without any reasonable relation to the State's interest; hence, the
Navotas Ordinance is not narrowly drawn. More so, the Manila
Ordinance, with its limited exceptions, is also not narrowly drawn.
In sum, the Manila and Navotas Ordinances should be completely
stricken down since their exceptions, which are essentially
determinative of the scope and breadth of the curfew regulations,
are inadequate to ensure protection of the above-mentioned
fundamental rights. While some provisions may be valid, the same
are merely ancillary thereto; as such, they cannot subsist
independently despite the presence150 of any separability
clause.151
The Quezon City Ordinance stands in stark contrast to the first two
(2) ordinances as it sufficiently safeguards the minors' constitutional
rights. It provides the following exceptions:
Section 4. EXEMPTIONS - Minor children under the following
circumstances shall not be covered by the provisions of this
ordinance;
(a) Those accompanied by their parents or
guardian;
94
(b) Those on their way to or from a party,
graduation ceremony, religious mass, and/or
other extra-curricular activities of their school
or organization wherein their attendance are
required or otherwise indispensable, or when
such minors are out and unable to go home
early due to circumstances beyond their
control as verified by the proper authorities
concerned; and
(c) Those attending to, or in experience of, an
emergency situation such as conflagration,
earthquake, hospitalization, road accident, law
enforcers encounter, and similar incidents[;]
(d) When the minor is engaged in an authorized
employment activity, or going to or returning
home from the same place of employment activity
without any detour or stop;
(e) When the minor is in [a] motor vehicle or
other travel accompanied by an adult in no
violation of this Ordinance;
(f) When the minor is involved in an emergency;
(g) When the minor is out of his/her residence
attending an official school, religious,
recreational, educational, social, community or
other similar private activity sponsored by the
city, barangay, school, or other similar private
civic/religious organization/group (recognized
by the community) that supervises the activity
or when the minor is going to or returning
home from such activity, without any detour or
stop; and
(h) When the minor can present papers certifying
that he/she is a student and was dismissed from
his/her class/es in the evening or that he/she is a
working student.152 (Emphases and underscoring
supplied)
As compared to the first two (2) ordinances, the list of exceptions
under the Quezon City Ordinance is more narrowly drawn to
sufficiently protect the minors' rights of association, free exercise of
religion, travel, to peaceably assemble, and of free expression.
Specifically, the inclusion of items (b) and (g) in the list of
exceptions guarantees the protection of these aforementioned rights.
These items uphold the right of association by enabling minors
to attend both official and extra-curricular activities not only of
their school or church but also of other legitimate organizations.
The rights to peaceably assemble and of free expression are also
covered by these items given that the minors' attendance in the
official activities of civic or religious organizations are allowed
during the curfew hours. Unlike in the Navotas Ordinance, the
right to the free exercise of religion is sufficiently safeguarded in
the Quezon City Ordinance by exempting attendance at religious
masses even during curfew hours. In relation to their right to ravel,

the ordinance allows the minor-participants to move to and from
the places where these activities are held. Thus, with these
numerous exceptions, the Quezon City Ordinance, in truth, only
prohibits unsupervised activities that hardly contribute to the
well-being of minors who publicly loaf and loiter within the
locality at a time where danger is perceivably more prominent.
To note, there is no lack of supervision when a parent duly
authorizes his/her minor child to run lawful errands or engage in
legitimate activities during the night, notwithstanding curfew hours.
As astutely observed by Senior Associate Justice Antonio T. Carpio
and Associate Justice Marvic M.V.F. Leonen during the
deliberations on this case, parental permission is implicitly
considered as an exception found in Section 4, item (a) of the
Quezon City Ordinance, i.e., "[t]hose accompanied by their parents
or guardian", as accompaniment should be understood not only in
its actual but also in its constructive sense. As the Court sees it, this
should be the reasonable construction of this exception so as to
reconcile the juvenile curfew measure with the basic premise that
State interference is not superior but only complementary to
parental supervision. After all, as the Constitution itself prescribes,
the parents' right to rear their children is not only natural but
primary.
Ultimately, it is important to highlight that this Court, in passing
judgment on these ordinances, is dealing with the welfare of minors
who are presumed by law to be incapable of giving proper consent
due to their incapability to fully understand the import and
consequences of their actions. In one case it was observed that:
A child cannot give consent to a contract under our civil laws. This
is on the rationale that she can easily be the victim of fraud as she is
not capable of fully understanding or knowing the nature or import
of her actions. The State, as parenspatriae, is under the obligation
to minimize the risk of harm to those who, because of their
minority, are as yet unable to take care of themselves fully. Those
of tender years deserve its protection.153
Under our legal system's own recognition of a minor's inherent lack
of full rational capacity, and balancing the same against the State's
compelling interest to promote juvenile safety and prevent juvenile
crime, this Court finds that the curfew imposed under the Quezon
City Ordinance is reasonably justified with its narrowly drawn
exceptions and hence, constitutional. Needless to say, these
exceptions are in no way limited or restricted, as the State, in
accordance with the lawful exercise of its police power, is not
precluded from crafting, adding, or modifying exceptions in similar
laws/ordinances for as long as the regulation, overall, passes the
parameters of scrutiny as applied in this case.
D. Penal Provisions of the Manila Ordinance.
Going back to the Manila Ordinance, this Court deems it proper - as
it was raised - to further discuss the validity of its penal provisions
in relation to RA 9344, as amended.
To recount, the Quezon City Ordinance, while penalizing the
parent/s or guardian under Section 8 thereof,154 does not impose
any penalty on the minors. For its part, the Navotas Ordinance
requires the minor, along with his or her parent/s or guardian/s, to
95
render social civic duty and community service either in lieu of -
should the parent/s or guardian/s of the minor be unable to pay the
fine imposed - or in addition to the fine imposed therein.155
Meanwhile, the Manila Ordinance imposed various sanctions to
the minor based on the age and frequency of violations, to wit:
SEC. 4. Sanctions and Penalties for Violation. Any child or youth
violating this ordinance shall be sanctioned/punished as follows:
(a) If the offender is Fifteen (15) years of age and
below, the sanction shall consist of a
REPRIMAND for the youth offender and
ADMONITION to the offender's parent, guardian
or person exercising parental authority.
(b) If the offender is Fifteen (15) years of age and
under Eighteen (18) years of age, the
sanction/penalty shall be:
1. For the FIRST OFFENSE,
Reprimand and Admonition;
2. For the SECOND OFFENSE,
Reprimand and Admonition, and a
warning about the legal impostitions in
case of a third and subsequent violation;
and
3. For the THIRD AND SUBSEQUENT
OFFENSES, Imprisonment of one (1)
day to ten (10) days, or a Fine of TWO
THOUSAND PESOS (Php2,000.00),
or both at the discretion of the Court,
PROVIDED, That the complaint shall be
filed by the PunongBarangay with the
office of the City Prosecutor.156
(Emphases and underscoring supplied).
Thus springs the question of whether local governments could
validly impose on minors these sanctions - i.e., (a) community .
service; (b) reprimand and admonition; (c) fine; and (d)
imprisonment. Pertinently, Sections 57 and 57-A of RA 9344, as
amended, prohibit the imposition of penalties on minors for
status offenses such as curfew violations, viz.:
SEC. 57. Status Offenses. - Any conduct not considered an
offense or not penalized if committed by an adult shall not be
considered an offense and shall not be punished if committed by
a child.
SEC. 57-A. Violations of Local Ordinances. - Ordinances enacted
by local governments concerning juvenile status offenses such as
but not limited to, curfew violations, truancy, parental
disobedience, anti-smoking and anti-drinking laws, as well as light
offenses and misdemeanors against public order or safety such as,
but not limited to, disorderly conduct, public scandal, harassment,
drunkenness, public intoxication, criminal nuisance, vandalism,
gambling, mendicancy, littering, public urination, and trespassing,
shall be for the protection of children. No penalty shall be
imposed on children for said violations, and they shall instead be

brought to their residence or to any barangay official at the
barangay hall to be released to the custody of their parents.
Appropriate intervention programs shall be provided for in
such ordinances. The child shall also be recorded as a "child at
risk" and not as a "child in conflict with the law." The ordinance
shall also provide for intervention programs, such as counseling,
attendance in group activities for children, and for the parents,
attendance in parenting education seminars. (Emphases and
underscoring supplied.)
To clarify, these provisions do not prohibit the enactment of
regulations that curtail the conduct of minors, when the similar
conduct of adults are not considered as an offense or penalized (i.e.,
status offenses). Instead, what they prohibit is the imposition of
penalties on minors for violations of these regulations.
Consequently, the enactment of curfew ordinances on minors,
without penalizing them for violations thereof, is not violative of
Section 57-A.
"Penalty"157 is defined as "[p]unishment imposed on a wrongdoer
usually in the form of imprisonment or fine";158 "[p ]unishment
imposed by lawful authority upon a person who commits a
deliberate or negligent act."159 Punishment, in tum, is defined as
"[a] sanction - such as fine, penalty, confinement, or loss of
property, right, or privilege - assessed against a person who has
violated the law."160
The provisions of RA 9344, as amended, should not be read to
mean that all the actions of the minor in violation of the regulations
are without legal consequences. Section 57-A thereof empowers
local governments to adopt appropriate intervention programs, such
as community-based programs161 recognized under Section
54162 of the same law.
In this regard, requiring the minor to perform community service is
a valid form of intervention program that a local government (such
as Navotas City in this case) could appropriately adopt in an
ordinance to promote the welfare of minors. For one, the
community service programs provide minors an alternative mode of
rehabilitation as they promote accountability for their delinquent
acts without the moral and social stigma caused by jail detention.
In the same light, these programs help inculcate discipline and
compliance with the law and legal orders. More importantly, they
give them the opportunity to become productive members of society
and thereby promote their integration to and solidarity with their
community.
The sanction of admonition imposed by the City of Manila is
likewise consistent with Sections 57 and 57-A of RA 9344 as it is
merely a formal way of giving warnings and expressing disapproval
to the minor's misdemeanor. Admonition is generally defined as a
"gentle or friendly reproof' or "counsel or warning against fault or
oversight."163 The Black's Law Dictionary defines admonition as
"[a]n authoritatively issued warning or censure";164 while the
Philippine Law Dictionary defines it as a "gentle or friendly
reproof, a mild rebuke, warning or reminder, [counseling], on a
fault, error or oversight, an expression of authoritative advice or
warning."165 Notably, the Revised Rules on Administrative Cases
in the Civil Service (RRACCS) and our jurisprudence in
96
administrative cases explicitly declare that "a warning or
admonition shall not be considered a penalty."166
In other words, the disciplinary measures of community-based
programs and admonition are clearly not penalties - as they are not
punitive in nature - and are generally less intrusive on the rights and
conduct of the minor. To be clear, their objectives are to formally
inform and educate the minor, and for the latter to understand, what
actions must be avoided so as to aid him in his future conduct.
A different conclusion, however, is reached with regard to
reprimand and fines and/or imprisonment imposed by the City of
Manila on the minor. Reprimand is generally defined as "a severe or
formal reproof."167 The Black's Law Dictionary defines it as "a
mild form of lawyer discipline that does not restrict the lawyer's
ability to practice law";168 while the Philippine Law Dictionary
defines it as a "public and formal censure or severe reproof,
administered to a person in fault by his superior officer or body to
which he belongs. It is more than just a warning or admonition."169
In other words, reprimand is a formal and public pronouncement
made to denounce the error or violation committed, to sharply
criticize and rebuke the erring individual, and to sternly warn the
erring individual including the public against repeating or
committing the same, and thus, may unwittingly subject the erring
individual or violator to unwarranted censure or sharp disapproval
from others. In fact, the RRACCS and our jurisprudence explicitly
indicate that reprimand is a penalty,170 hence, prohibited by
Section 57-A of RA 9344, as amended.
Fines and/or imprisonment, on the other hand, undeniably
constitute penalties - as provided in our various criminal and
administrative laws and jurisprudence - that Section 57-A of RA
9344, as amended, evidently prohibits.
As worded, the prohibition in Section 57-A is clear, categorical, and
unambiguous. It states that "[n]o penalty shall be imposed on
children for x x x violations [of] juvenile status offenses]." Thus,
for imposing the sanctions of reprimand, fine, and/or imprisonment
on minors for curfew violations, portions of Section 4 of the Manila
Ordinance directly and irreconcilably conflict with the clear
language of Section 57-A of RA 9344, as amended, and hence,
invalid. On the other hand, the impositions of community service
programs and admonition on the minors are allowed as they do not
constitute penalties.
CONCLUSION
In sum, while the Court finds that all three Curfew Ordinances have
passed the first prong of the strict scrutiny test - that is, that the
State has sufficiently shown a compelling interest to promote
juvenile safety and prevent juvenile crime in the concerned
localities, only the Quezon City Ordinance has passed the second
prong of the strict scrutiny test, as it is the only issuance out of the
three which provides for the least restrictive means to achieve this
interest. In particular, the Quezon City Ordinance provides for
adequate exceptions that enable minors to freely exercise their
fundamental rights during the prescribed curfew hours, and
therefore, narrowly drawn to achieve the State's purpose. Section 4
(a) of the said ordinance, i.e., "[t]hose accompanied by their parents
or guardian", has also been construed to include parental permission
 97

as a constructive form of accompaniment and hence, an allowable
exception to the curfew measure; the manner of enforcement,
however, is left to the discretion of the local government unit.
In fine, the Manila and Navotas Ordinances are declared
unconstitutional and thus, null and void, while the Quezon City
Ordinance is declared as constitutional and thus, valid in accordance
with this Decision.
Pursuant to the Section 13, Article VIII of the Constitution and the
Division Chairperson’s Attestation, I certify that the conclusions in
the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.
MARIA LOURDES P.A. SERENO
Chief Justice

For another, the Court has determined that the Manila Ordinance's
penal provisions imposing reprimand and fines/imprisonment on
minors conflict with Section 57-A of RA 9344, as amended. Hence,
following the rule that ordinances should always conform with the
law, these provisions must be struck down as invalid.

WHEREFORE, the petition is PARTLYGRANTED. The Court

hereby declares Ordinance No. 8046, issued by the local
government of the City of Manila, and Pambayang Ordinansa Blg.
No. 99-02, as amended by Pambayang Ordinansa Blg. 2002-13
issued by the local government of Navotas City,
UNCONSTITUTIONAL and, thus, NULL and VOID; while
Ordinance No. SP-2301, Series of 2014, issued by the local
government of the Quezon City is declared CONSTITUTIONAL
and, thus, VALID in accordance with this Decision.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice
Chairperson

PRESBITERO J. VELASCO,
ANTONIO T. CARPIO
JR.
Associate Justice
Associate Justice
TERESITA J. LEONARDO-
DIOSDADO M. PERALTA
DE CASTRO
Associate Justice
Associate Justice
MARIANO C DEL
LUCAS P. BERSAMIN
CASTILLO
Associate Justice
Associate Justice
See separate opinion
JOSE CATRAL MENDOZA
MARVIC M.V.F. LEONEN
Associate Justice
Associate Justice
ALFREDO BENJAMIN S.
FRANCIS H. JARDELEZA
CAGUIOA
Associate Justice
Associate Justice
SAMUEL R. MARTIRES NOEL G. TIJAM
Associate Justice Associate Justice

ANDRES B. REYES, JR.

Associate Justice

CERTIFICATION

G.R. No. 89572
9-11 minutes
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS
(DECS) and DIRECTOR OF CENTER FOR EDUCATIONAL
MEASUREMENT, petitioners,
vs.
ROBERTO REY C. SAN DIEGO and JUDGE TERESITA
DIZON-CAPULONG, in her capacity as Presiding Judge of the
Regional Trial Court of Valenzuela, Metro Manila, Branch 172,
respondents.
Ramon M. Guevara for private respondent.
The issue before us is mediocrity. The question is whether a person
who has thrice failed the National Medical Admission Test
(NMAT) is entitled to take it again.
The private respondent insists he can, on constitutional grounds.
But first the facts.
The private respondent is a graduate of the University of the East
with a degree of Bachelor of Science in Zoology. The petitioner
claims that he took the NMAT three times and flunked it as many
times.1 When he applied to take it again, the petitioner rejected his
application on the basis of the aforesaid rule. He then went to the
Regional Trial Court of Valenzuela, Metro Manila, to compel his
admission to the test.
In his original petition for mandamus, he first invoked his
constitutional rights to academic freedom and quality education. By
agreement of the parties, the private respondent was allowed to take
the NMAT scheduled on April 16, 1989, subject to the outcome of
his petition. 2 In an amended petition filed with leave of court, he
squarely challenged the constitutionality of MECS Order No. 12,
Series of 1972, containing the above-cited rule. The additional
grounds raised were due process and equal protection.
After hearing, the respondent judge rendered a decision on July 4,
1989, declaring the challenged order invalid and granting the
petition. Judge Teresita Dizon-Capulong held that the petitioner had
been deprived of his right to pursue a medical education through an
arbitrary exercise of the police power. 3
We cannot sustain the respondent judge. Her decision must be
reversed.
In Tablarin v. Gutierrez, 4 this Court upheld the constitutionality of
the NMAT as a measure intended to limit the admission to medical
schools only to those who have initially proved their competence
and preparation for a medical education. Justice Florentino P.
Feliciano declared for a unanimous Court:
However, the respondent judge agreed with the petitioner that the
said case was not applicable. Her reason was that it upheld only the
98
requirement for the admission test and said nothing about the so-
called "three-flunk rule."
We see no reason why the rationale in the Tablarin case cannot
apply to the case at bar. The issue raised in both cases is the
academic preparation of the applicant. This may be gauged at least
initially by the admission test and, indeed with more reliability, by
the three-flunk rule. The latter cannot be regarded any less valid
than the former in the regulation of the medical profession.
There is no need to redefine here the police power of the State.
Suffice it to repeat that the power is validly exercised if (a) the
interests of the public generally, as distinguished from those of a
particular class, require the interference of the State, and (b) the
means employed are reasonably necessary to the attainment of the
object sought to be accomplished and not unduly oppressive upon
individuals.5
In other words, the proper exercise of the police power requires the
concurrence of a lawful subject and a lawful method.
The subject of the challenged regulation is certainly within the
ambit of the police power. It is the right and indeed the
responsibility of the State to insure that the medical profession is
not infiltrated by incompetents to whom patients may unwarily
entrust their lives and health.
The method employed by the challenged regulation is not irrelevant
to the purpose of the law nor is it arbitrary or oppressive. The three-
flunk rule is intended to insulate the medical schools and ultimately
the medical profession from the intrusion of those not qualified to
be doctors.
While every person is entitled to aspire to be a doctor, he does not
have a constitutional right to be a doctor. This is true of any other
calling in which the public interest is involved; and the closer the
link, the longer the bridge to one's ambition. The State has the
responsibility to harness its human resources and to see to it that
they are not dissipated or, no less worse, not used at all. These
resources must be applied in a manner that will best promote the
common good while also giving the individual a sense of
satisfaction.
A person cannot insist on being a physician if he will be a menace
to his patients. If one who wants to be a lawyer may prove better as
a plumber, he should be so advised and adviced. Of course, he may
not be forced to be a plumber, but on the other hand he may not
force his entry into the bar. By the same token, a student who has
demonstrated promise as a pianist cannot be shunted aside to take a
course in nursing, however appropriate this career may be for
others.
The right to quality education invoked by the private respondent is
not absolute. The Constitution also provides that "every citizen has
the right to choose a profession or course of study, subject to fair,
reasonable and equitable admission and academic requirements.6
The private respondent must yield to the challenged rule and give
way to those better prepared. Where even those who have qualified
may still not be accommodated in our already crowded medical
 99

schools, there is all the more reason to bar those who, like him, have
been tested and found wanting.
The contention that the challenged rule violates the equal protection
clause is not well-taken. A law does not have to operate with equal
force on all persons or things to be conformable to Article III,
Section 1 of the Constitution.
Footnotes
1 A check with the Department of Education
showed that the private respondent had actually
taken and flunked four tests already and was
applying to take a fifth examination. 2 He also
failed this fifth test.

There can be no question that a substantial distinction exists 2 Rollo, pp. 26-34.
between medical students and other students who are not subjected
to the NMAT and the three-flunk rule. The medical profession 3 152 SCRA 730.
directly affects the very lives of the people, unlike other careers
which, for this reason, do not require more vigilant regulation. The 4 US vs. Toribio, 15 Phil. 85; Fabie v. City of
accountant, for example, while belonging to an equally respectable Manila, 21 Phil. 486; Ynot v. Intermediate
profession, does not hold the same delicate responsibility as that of
Appellate Court, 148 SCRA 659.
the physician and so need not be similarly treated.
5 Article XIV, Section 5(3).
There would be unequal protection if some applicants who have
passed the tests are admitted and others who have also qualified are
denied entrance. In other words, what the equal protection requires 6 Footnote Nos. 1 & 2.
is equality among equals.

The Court feels that it is not enough to simply invoke the right to
quality education as a guarantee of the Constitution: one must show
that he is entitled to it because of his preparation and promise. The
private respondent has failed the NMAT five times. 7 While his
persistence is noteworthy, to say the least, it is certainly misplaced,
like a hopeless love.

No depreciation is intended or made against the private respondent.

It is stressed that a person who does not qualify in the NMAT is not
an absolute incompetent unfit for any work or occupation. The only
inference is that he is a probably better, not for the medical
profession, but for another calling that has not excited his interest.

In the former, he may be a bungler or at least lackluster; in the

latter, he is more likely to succeed and may even be outstanding. It
is for the appropriate calling that he is entitled to quality education
for the full harnessing of his potentials and the sharpening of his
latent talents toward what may even be a brilliant future.

We cannot have a society of square pegs in round holes, of dentists

who should never have left the farm and engineers who should have
studied banking and teachers who could be better as merchants.

It is time indeed that the State took decisive steps to regulate and
enrich our system of education by directing the student to the course
for which he is best suited as determined by initial tests and
evaluations. Otherwise, we may be "swamped with mediocrity," in
the words of Justice Holmes, not because we are lacking in
intelligence but because we are a nation of misfits.

WHEREFORE, the petition is GRANTED. The decision of the

respondent court dated January 13, 1989, is REVERSED, with costs
against the private respondent. It is so ordered.

Fernan, C.J., Narvasa Melencio-Herrera, Gutierrez, Jr., Paras,

Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-
Aquino, Medialdea and Regalado, JJ., concur.