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POLICE POWER

1 Amelia Cabrera vs Manuel Lapid GR No 129098 December 6 2006

FACTS Instant petition for review on certiorari which seeks the reversal of the Resolution dated 13 May 1996 which dismissed the complaint-affidavit filed by petitioner against respondents and the Order dated 21 March 1997 and denied her motion for reconsideration

The instant petition originated from a Complaint-Affidavit filed in November 1995 by petitioner Amelia M Cabrera where she accused before the Office of the Ombudsman respondents Gov Manuel Lapid Mayor Fernando Baltazar Vicemayor Reynaldo F Cabrera and Police Superintendent Diony Ventura of violating Section 3(e) of the Anti-Graft and Corrupt Practices Act and Article 324 of the Revised Penal Code

Petitioner entered into a lease agreement with the Municipality of Sasmuan over a tract of land for the purpose of devoting it to fishpond operations and had spent approximately P500000000 for its construction before the fishpond operations commenced in August 1995 A month later a demolition of her fishpond was set for being purportedly illegal and blocked the flow of the Pasak River Petitioner sent the fishpond administrator to dissuade respondents from destroying her property but it was demolished on 10 October 1995 by dynamite blasting

Petitioner alleged that the demolition was purposely carried out in the presence of media representatives and other government officials to gain media mileage Petitioner imputed evident bad faith on respondents Mayor Baltazar and Vice-Mayor Cabrera in allowing the destruction of the fishpond despite their prior knowledge of the existence of the lease agreement She also charged respondents Governor Lapid and Senior Superintendent Ventura with gross inexcusable negligence for ordering the destruction of the fishpond without first verifying its legality

In the counter-affidavit jointly filed by Mayor Baltazar and Vice-Mayor Cabrera they insisted that contrary to petitioners claim the fishpond was an illegal structure because it was erected on the seashore at the mouth of the Pasak River and sat on an inalienable land They claimed that the demolition was done by the Task Force Bilis Daloy upon the directive of then President Fidel V Ramos

Governor Lapid averred that the contract of lease between petitioner and the Municipality of Sasmuan represented by then Mayor Abelardo Panlaqui was executed two weeks before respondent Mayor Baltazar took his oath of office in 1995 He also argued that under the law the Department of Agriculture (DA) is the government agency authorized to enter into licensing agreements for fishpond operations and as per certification by the DA Regional Director petitioners fishpond operation was not covered by a fishpond lease agreement or application Governor Lapid also referred to the certification by the Municipal Health Officer of Sasmuan issued before the actual demolition of the fishpond describing it as a nuisance per se and recommending its abatement

13 May 1996- the Ombudsman issued the assailed Resolution dismissing petitioners complaint The dismissal was based on the declaration that the fishpond was a nuisance per se and thus may be abated by respondents in the exercise of the police power of the State

Petitioner sought reconsideration of the Resolution arguing that under Sec 149 of Republic Act (RA) No 7160 otherwise known as the Local Government Code of 1991 the exclusive authority to grant fishery privileges is vested in the municipalities Petitioner also questioned the certification by the Municipal Health Officer alleging that the same was issued before the ocular inspection of the property which took place only on the day of the demolition Petitioner also contended that a judicial proceeding was necessary to determine whether the property indeed had caused the flooding

Respondents filed separate oppositions to petitioners motion for reconsideration Petitioner filed a reply to the opposition and respondent Governor Lapid filed a rejoinder to the reply

21 March 1997- the Ombudsman affirmed its 13 May 1996 Resolution in an order It ruled that the repealing clause of RA No

7160 expressly repealed only Sec 2 6 and 29 of Presidential Decree (PD) No 704 so that in harmonizing the remaining provisions of PD No 704 and the provisions of RA No 7160 applicable to the grant of fishery privileges the Bureau of Fisheries and Aquatic Resources (BFAR) is the government agency authorized to grant fishpond license or permit in areas not identified as municipal waters or not declared as alienable or disposable by the Department of Environment and Natural Resources (DENR) Since it appears from DENR records that the subject property has not been declared disposable or included in areas devoted for fishpond development the Ombudsman concluded that the lease agreement entered into by petitioner was void ab initio In view of the illegality of the lease agreement the Ombudsman ruled that its demolition was justified The Ombudsman described the demolition as a valid exercise of police power and in accordance with the provision of Sec 28 of PD No 704 directing the removal of any fishpen or fishpond that obstructed the free navigation of a stream or lake It also upheld the authority of the district health officer to determine the abatement of a nuisance without need of judicial proceedings

Petitioner elevated the matter to this Court via a petition for review on certiorari under Rule 45 of the Rules of Court to assail the 13 May 1996 Resolution and 21 March 1997 Order of the Ombudsman Petitioner subsequently filed an amended petition for review on certiorari to implead the Ombudsman as respondent although in a petition for review on certiorari the tribunal whose issuance is assailed need not be impleaded as respondent

ISSUE WON the Ombudsman exceeded its authority and erred in ruling that the demolition is a proper exercise of the police power of the state and that the petitioner was given due hearing before the fishpond was blasted inter alia

HELD NO Such direct resort to this Court from a resolution or order of the Ombudsman is not sanctioned by any rule of procedure

Sec 27 of RA No 6770 otherwise known as The Ombudsman Act of 1989 only allows direct appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court The provision does not cover resolutions of the Ombudsman in criminal cases Insofar as it allowed a direct appeal to this Court this provision was declared unconstitutional in Fabian v Hon

Where grave abuse of discretion amounting to lack or excess of jurisdiction taints the findings of the Ombudsman on the existence of probable cause the aggrieved party may file a petition for certiorari under Rule 65 The remedy from resolutions of the Ombudsman in preliminary investigations of criminal cases is a petition for certiorari under Rule 65 not a petition for review on certiorari under Rule 45

petitioner has taken the position that the Ombudsman has decided questions of substance contrary to law and the applicable decisions of the Supreme Court That is a ground under a Rule 45 petition Indeed from a reading of the assignment of errors it is clear that petitioner does not impute grave abuse of discretion to the Ombudsman in issuing the assailed Resolution and Order Rather she merely questions his findings and conclusions As stated earlier direct appeal to the Supreme Court via a petition for review on certiorari is not sanctioned by any rule of procedure By availing of a wrong remedy the petition should be dismissed outright

Even if the Court treats the instant appeal as a petition for certiorari under Rule 65 its dismissal is nevertheless warranted because petitioner failed to present much more substantiate any grave abuse of discretion on the part of the Ombudsman

the Ombudsman dismissed petitioners criminal complaint because respondents had validly resorted to the police power of the State when they effected the demolition of the illegal fishpond in question following the declaration thereof as a nuisance per se Thus the Ombudsman was of the opinion that no violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act or of Article 324 of the Revised Penal Code was committed by respondents In the words of the Ombudsman those who participated in the blasting of the subject fishpond were only impelled by their desire to serve the best interest of the general public for the good and the highest good

By grave abuse of discretion is meant capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction Mere abuse of discretion is not enough It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law

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An error of judgment is one which the court may commit in the exercise of its jurisdiction and which error is reversible only by an appeal As long as the court acts within its jurisdiction any alleged errors committed in the exercise of its discretion will amount to nothing more than mere errors of judgment correctible by an appeal or a petition for review under Rule 45 of the Rules of Court An error of jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction and which error is correctible only by the extraordinary writ of certiorari

The other errors raised by petitioner pertain to the Ombudsmans opinion on the lack of probable cause to indict respondents These are purported errors in judgment which can be corrected by an appeal although not via a direct appeal to this Court Direct resort to this Court may be had only through the extraordinary writ of certiorari and upon showing that the Ombudsman committed grave abuse of discretion which petitioner failed to demonstrate

It is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well DENIED

2 Carlos Superdrug Corp vs DSWD GR No 166494 June 29 2007

FACTS Petition for Prohibition with Prayer for Preliminary Injunction assailing the constitutionality of Section 4 (a) of Republic Act (RA) No 9257 otherwise known as the Expanded Senior Citizens Act of 2003

Petitioners are domestic corporations and proprietors operating drugstores in the Philippines

Public respondents on the other hand include DSWD DOH DOF DOJ and the DILG which have been specifically tasked to monitor the drugstores compliance with the law promulgate the implementing rules and regulations for the effective implementation of the law and prosecute and revoke the licenses of erring drugstore establishments

February 26 2004-- RA No 9257 amending RA No 7432 was signed into law by President Gloria Macapagal-Arroyo and it became effective on March 21 2004

SEC 4 Privileges for the Senior Citizens mdash The senior citizens shall be entitled to the following

(a) the grant of twenty percent (20) discount from all establishments relative to the utilization of services in hotels and similar lodging establishments restaurants and recreation centers and purchase of medicines in all establishments for the exclusive use or enjoyment of senior citizens including funeral and burial services for the death of senior citizens

xxx xxx xxx

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

May 28 2004--- the DSWD approved and adopted the Implementing Rules and Regulations of RA No 9257 Rule VI Article 8 of which states

Article 8 Tax Deduction of Establishments mdash The establishment may claim the discounts granted under Rule V Section 4 mdash Discounts for Establishments Section 9 Medical and Dental Services in Private Facilities[] and Sections 10 and 11 mdash Air Sea and Land Transportation as tax deduction based on the net cost of the goods sold or services rendered Provided That the cost of the discount shall be allowed as deduction from gross income for the

same taxable year that the discount is granted Provided further That the total amount of the claimed tax deduction net of value added tax if applicable shall be included in their gross sales receipts for tax purposes and shall be subject to proper documentation and to the provisions of the National Internal Revenue Code as amended Provided finally that the implementation of the tax deduction shall be subject to the Revenue Regulations to be issued by the Bureau of Internal Revenue (BIR) and approved by the Department of Finance (DOF)

July 10 2004--- in reference to the query of the Drug Stores Association of the Philippines (DSAP) concerning the meaning of a tax deduction under the Expanded Senior Citizens Act the DOF through Director IV Ma Lourdes B Recente clarified the difference between the Tax Credit (under the Old Senior Citizens Act) and Tax Deduction (under the Expanded Senior Citizens Act) Under a tax deduction scheme the tax deduction on discounts was subtracted from Net Sales together with other deductions which are considered as operating expenses before the Tax Due was computed based on the Net Taxable Income On the other hand under a tax credit scheme the amount of discounts which is the tax credit item was deducted directly from the tax due amount

October 1 2004--- Administrative Order (AO) No 171 or the Policies and Guidelines to Implement the Relevant Provisions of Republic Act 9257 otherwise known as the Expanded Senior Citizens Act of 2003 was issued by the DOH providing the grant of twenty percent (20) discount in the purchase of unbranded generic medicines from all establishments dispensing medicines for the exclusive use of the senior citizens

On November 12 2004--- DOH issued Administrative Order No 177 amending AO No 171 Under AO No 177 the twenty percent discount shall not be limited to the purchase of unbranded generic medicines only but shall extend to both prescription and non-prescription medicines whether branded or generic Thus it stated that [t]he grant of twenty percent (20) discount shall be provided in the purchase of medicines from all establishments dispensing medicines for the exclusive use of the senior citizens

Petitioners assail the constitutionality of Section 4 (a) of the Expanded Senior Citizens Act based on the following grounds

1) The law is confiscatory because it infringes Art III Sec 9 of the Constitution which provides that private property shall not be taken for public use without just compensation

2) It violates the equal protection clause (Art III Sec 1) enshrined in our Constitution which states that no person shall be deprived of life liberty or property without due process of law nor shall any person be denied of the equal protection of the laws and

3) The 20 discount on medicines violates the constitutional guarantee in Article XIII Section 11 that makes essential goods health and other social services available to all people at affordable cost

Petitioners assert that Section 4 (a) of the law is unconstitutional because it constitutes deprivation of private property Compelling drugstore owners and establishments to grant the discount will result in a loss of profit and capital because 1) drugstores impose a mark-up of only 5 to 10 on branded medicines and 2) the law failed to provide a scheme whereby drugstores will be justly compensated for the discount

ISSUE whether the State in promoting the health and welfare of a special group of citizens can impose upon private establishments the burden of partly subsidizing a government program

HELD YES What petitioners are ultimately questioning is the validity of the tax deduction scheme as a reimbursement mechanism for the twenty percent (20) discount that they extend to senior citizens

The permanent reduction in their total revenues is a forced subsidy corresponding to the taking of private property for public use or benefit This constitutes compensable taking for which petitioners would ordinarily become entitled to a just compensation

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Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator The measure is not the takers gain but the owners loss The word just is used to intensify the meaning of the word compensation and to convey the idea that the equivalent to be rendered for the property to be taken shall be real substantial full and ample

A tax deduction does not offer full reimbursement of the senior citizen discount As such it would not meet the definition of just compensation

The Senior Citizens Act was enacted primarily to maximize the contribution of senior citizens to nation-building and to grant benefits and privileges to them for their improvement and well-being as the State considers them an integral part of our society

The priority given to senior citizens finds its basis in the Constitution as set forth in the law itself Thus the Act provides

SEC 2 Republic Act No 7432 is hereby amended to read as follows

SECTION 1 Declaration of Policies and Objectives mdash xxx xxx xxx

(f) To recognize the important role of the private sector in the improvement of the welfare of senior citizens and to actively seek their partnership

To implement the above policy the law grants a twenty percent discount to senior citizens for medical and dental services and diagnostic and laboratory fees etc etc

As a form of reimbursement the law provides that business establishments extending the twenty percent discount to senior citizens may claim the discount as a tax deduction

The law is a legitimate exercise of police power which similar to the power of eminent domain has general welfare for its object Police power is not capable of an exact definition but 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 to conditions and circumstances thus assuring the greatest benefits Accordingly it has been described as the most essential insistent and the least limitable of powers extending as it does to all the great public needs It is [t]he power vested in the legislature by the constitution to make ordain and establish all manner of wholesome and reasonable laws statutes and ordinances either with penalties or without not repugnant to the constitution as they shall judge to be for the good and welfare of the commonwealth and of the subjects of the same

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

Given these it is incorrect for petitioners to insist that the grant of the senior citizen discount is unduly oppressive to their business because petitioners have not taken time to calculate correctly and come up with a financial report so that they have not been able to show properly whether or not the tax deduction scheme really works greatly to their disadvantage

In treating the discount as a tax deduction petitioners insist that they will incur losses because referring to the DOF Opinion for every P100 senior citizen discount that petitioners would give P068 will be shouldered by them as only P032 will be refunded by the government by way of a tax deduction

To illustrate this point petitioner Carlos Super Drug cited the anti-hypertensive maintenance drug Norvasc as an example According to the latter it acquires Norvasc from the distributors at P3757 per tablet and retails it at P3960 (or at a margin of 5) If it grants a 20 discount to senior citizens or an amount equivalent to P792 then it would have to sell Norvasc at P3168 which translates to a loss from capital of P589 per tablet Even if the government will allow a tax deduction only

P253 per tablet will be refunded and not the full amount of the discount which is P792 In short only 32 of the 20 discount will be reimbursed to the drugstores

Petitioners computation is flawed For purposes of reimbursement the law states that the cost of the discount shall be deducted from gross income the amount of income derived from all sources before deducting allowable expenses which will result in net income Here petitioners tried to show a loss on a per transaction basis which should not be the case An income statement showing an accounting of petitioners sales expenses and net profit (or loss) for a given period could have accurately reflected the effect of the discount on their income Absent any financial statement petitioners cannot substantiate their claim that they will be operating at a loss should they give the discount In addition the computation was erroneously based on the assumption that their customers consisted wholly of senior citizens Lastly the 32 tax rate is to be imposed on income not on the amount of the discount

While the Constitution protects property rights petitioners must accept the realities of business and the State in the exercise of police power can intervene in the operations of a business which may result in an impairment of property rights in the process

While Article XIII of the Constitution provides the precept for the protection of property various laws and jurisprudence particularly on agrarian reform and the regulation of contracts and public utilities continuously serve as a reminder that the right to property can be relinquished upon the command of the State for the promotion of public good

Without sufficient proof that Section 4 (a) of RA No 9257 is arbitrary and that the continued implementation of the same would be unconscionably detrimental to petitioners the Court will refrain from quashing a legislative act DISMISSED

3 City of Manila vs Hon Perfecto Laguio GR No 118127 August 12 2005

FACTS Petition under Rule 45 (then Rule 42) of the Revised Rules on Civil Procedure seeking the reversal of the Decision in Civil Case No 93-66511 of the Regional Trial Court (RTC) of Manila Branch 18 (lower court) and questioning the validity of Ordinance No 7783 (the Ordinance) of the City of Manila

28 June 1993--- Private respondent Malate Tourist Development Corporation (MTDC)which is a corporation engaged in the business of operating hotels motels hostels and lodging houses filed a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction andor Temporary Restraining Order (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

Enacted by the City Council on 9 March 1993 and approved by petitioner City Mayor on 30 March 1993 the said Ordinance No 778[3] is entitled mdashAN 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

SECTION 1Any 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 PD 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

1Sauna Parlors 2Massage Parlors 3Karaoke Bars 4Beerhouses 5Night Clubs 6Day Clubs

7Super Clubs 8Discotheques 9Cabarets 10Dance Halls 11Motels 12Inns

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SEC 2The 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 XXXXX

In the RTC Petition MTDC argued that the Ordinance erroneously and improperly included in its enumeration of prohibited establishments motels and inns such as MTDCs Victoria Court considering that these were not establishments for amusement or entertainment and they were not services or facilities for entertainment nor did they use women as tools for entertainment and neither did they disturb the community annoy the inhabitants or adversely affect the social and moral welfare of the community

MTDC further advanced that the Ordinance was invalid and unconstitutional for the following reasons (1) The City Council has no power to prohibit the operation of motels as Section 458 (a) 4 (iv) of the Local Government Code of 1991 (the Code) grants to the City Council only the power to regulate the establishment operation and maintenance of hotels motels inns pension houses lodging houses and other similar establishments (2) TheOrdinance is void as it is violative of Presidential Decree (PD) No 499 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 MTDCs constitutional rights in that (a) it is confiscatory and constitutes an invasion of plaintiffs property rights (b) the City Council has no power to find as a fact that a particular thing is a nuisance per se nor does it have the power to extrajudicially destroy it and (6) The Ordinance constitutes a denial of equal protection under the law as no reasonable basis exists for prohibiting the operation of motels and inns but not pension houses hotels lodging houses or other similar establishments and for prohibiting said business in the Ermita-Malate area but not outside of this area

In their Answer 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 which reads thus

Section 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

(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

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) ofRepublic Act No 409 1 otherwise known as the Revised Charter of the City of Manila (Revised Charter of Manila) which reads thus

ARTICLE III THE MUNICIPAL BOARD xxx xxx xxx

Section 18Legislative powers mdash The Municipal Board shall have the following legislative powersxxx xxx xxx

(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

Petitioners also maintained that there was no inconsistency between PD 499 and the Ordinance as the latter simply disauthorized certain forms of businesses and allowed the Ermita-Malate area to remain a commercial zone The Ordinance the petitioners likewise claimed cannot be assailed as ex post facto as it was prospective in operation 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

28 June 1993--- respondent Judge Perfecto AS Laguio Jr (Judge Laguio) issued an ex-parte temporary restraining order against the enforcement of the Ordinance

16 July 1993--- again in an intrepid gesture he granted the writ of preliminary injunction prayed for by MTDC

25 November 1994-- Judge Laguio rendered writ of preliminary injunction permanent and the said ordinance null and void

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 PD 499 which allows operators of all kinds of commercial establishments except those specified therein and (3) It erred in declaring the Ordinance void and unconstitutional

In the Petition and in its Memorandum 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 They allege that the Ordinance is a valid exercise of police power it does not contravene PD 499 and that it enjoys the presumption of validity

27 May 1996---In its Memorandum 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

ISSUE WON the lower court erred in declaring the Ordinance void and unconstitutional WON the requisites of exercise of police powers is met

HELD NO 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

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

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The Ordinance must satisfy two requirements it must pass muster under the test of constitutionality and the test of consistency with the prevailing laws That ordinances should be constitutional uphold the principle of the supremacy of the Constitution The requirement that the enactment must not violate existing law gives stress to the precept that local government units are able to legislate only by virtue of their derivative legislative power a delegation of legislative power from the national legislature The delegate cannot be superior to the principal or exercise powers higher than those of the latter

The national legislature is still the principal of the local government units which cannot defy its will or modify or violate it

The Ordinance was passed by the City Council in the exercise of its police power an enactment of the City Council acting as agent of Congress Local government units as agencies of the State are endowed with police power in order to effectively accomplish and carry out the declared objects of their creation This delegated police power is found in Section 16 of the Code known as the general welfare clause viz

SECTION 16General Welfare mdash 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 provincecitymunicipality and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the provincecitymunicipality provided under the Code

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

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 (Sec 1) There is no controlling and precise definition of due process It furnishes though a standard to which governmental action should conform in order that deprivation of life liberty or property in each appropriate case be valid This standard is aptly described as a responsiveness to the supremacy of reason obedience to the dictates of justice and as such it is a limitation upon the exercise of the police power

The purpose of the guaranty is to prevent governmental encroachment against the life liberty and property of individuals to secure the individual from the arbitrary exercise of the powers of the government unrestrained by the established principles of private rights and distributive justice to protect property from confiscation by legislative enactments from seizure forfeiture and destruction without a trial and conviction by the ordinary mode of judicial procedure and to secure to all persons equal and impartial justice and the benefit of the general law

This clause has been interpreted as imposing two separate limits on government usually called procedural due process and substantive due process

i Procedural due process as the phrase implies refers to the procedures that the government must follow before it deprives a person of life liberty or property Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action

ii Substantive due process asks whether the government has an adequate reason for taking away a persons life liberty or property In other words substantive due process looks to whether there is a sufficient justification for the governments action Case law in the United States (US) tells us that whether there is such a justification depends very much on the

level of scrutiny used For example if a law is in an area where only rational basis review is applied substantive due process is met so long as the law is rationally related to a legitimate government purpose But if it is an area where strict scrutiny is used such as for protecting fundamental rights then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose

The police power granted to local government units must always be exercised with utmost observance of the rights of the people to due process and equal protection of the law Such power cannot be exercised whimsically arbitrarily or despotically as its exercise is subject to a qualification limitation or restriction demanded by the respect and regard due to the prescription of the fundamental law particularly those forming part of the Bill of Rights Individual rights it bears emphasis may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare Due process requires the intrinsic validity of the law in interfering with the rights of the person to his life liberty and property

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

1 it must appear that the interests of the public generally as distinguished from those of a particular class require an interference with private rights

2 the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment for even under the guise of protecting the public interest personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded

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

The closing down and transfer of businesses or their conversion into businesses allowed under the Ordinance have no reasonable relation to the accomplishment of its purposes Otherwise stated the prohibition of the enumerated establishments will not per se protect and promote the social and moral welfare of the community it will not in itself eradicate the alluded social ills of prostitution adultery fornication nor will it arrest the spread of sexual disease in Manila

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

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 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

In Section 3 thereof owners andor operators of the enumerated establishments are given three (3) months from the date of approval of the Ordinance within which to wind up business operations or to transfer to any place outside the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area Further it states in Section 4 that in cases of subsequent violations of the provisions of the Ordinance the premises of the erring establishment shall be closed and padlocked permanently It is readily apparent that the means employed by the Ordinance for the achievement of its purposes the governmental interference itself infringes on the constitutional guarantees of a persons fundamental right to liberty and property

6

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 faculties with which he has been endowed by his Creator subject only to such restraint as are necessary for the common welfare In accordance with this case the rights of the 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

Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in intimate sexual conduct within the motels premises mdash be it stressed that their consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons The liberty protected by the Constitution allows persons the right to make this choice Their right to liberty under the due process 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

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

Liberty in the constitutional sense not only means freedom from unlawful government restraint it must include privacy as well if it is to be a repository of freedom The right to be let alone is the beginning of all freedom mdash it is the most comprehensive of rights and the right most valued by civilized men

The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect

In addition the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial use of its property

The Constitution expressly provides in Article III Section 9 that private property shall not be taken for public use without just compensation The provision is the most important protection of property rights in the Constitution This is a restriction on the general power of the government to take property The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others In part too it is about loss spreading If the government takes away a persons property to benefit society then society should pay The principal purpose of the guarantee is to bar the Government from forcing some people alone to bear public burdens which in all fairness and justice should be borne by the public as a whole

There are two different types of taking that can be identified A possessory taking occurs when the government confiscates or physically occupies property A regulatory taking occurs when the governments regulation leaves no reasonable economically viable use of the property

In the landmark case of Pennsylvania Coal v Mahon it was held that a taking also could be found if government regulation of the use of property went too far When regulation reaches a certain magnitude in most if not in all cases there must be an exercise of eminent domain and compensation to support the act While property may be regulated to a certain extent if regulation goes too far it will be recognized as a taking

What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use A regulation that permanently denies all economically beneficial or productive use of land is from the owners point of view equivalent to a taking unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable

A regulation which denies all economically beneficial or productive use of land will require compensation under the takings clause Where a regulation places limitations on land that fall short of eliminating all economically beneficial use a taking

nonetheless may have occurred depending on a complex of factors including the regulations economic effect on the landowner the extent to which the regulation interferes with reasonable investment-backed expectations and the character of government action

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

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 mdash to transfer to any place outside of the Ermita-Malate area or to convert into allowed businesses mdash 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 penalty of closure likewise constitutes unlawful taking that should be compensated by the government The burden on the owner to convert or transfer his business otherwise it will be closed permanently after a subsequent violation should be borne by the public as this end benefits them as a whole

Petitioners cannot take refuge in classifying the measure as a zoning ordinance A zoning ordinance although a valid exercise of police power which limits a wholesome property to a use which can not reasonably be made of it constitutes the taking of such property without just compensation Private property which is not noxious nor intended for noxious purposes may not by zoning be destroyed without compensation Such principle finds no support in the principles of justice as we know them The police powers of local government units which have always received broad and liberal interpretation cannot be stretched to cover this particular taking

Distinction should be made between destruction from necessity and eminent domain It needs restating that the property taken in the exercise of police power is destroyed because it is noxious or intended for a noxious purpose while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore wholesome If it be of public benefit that a 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

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

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

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

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

7

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

[In contrast to two relevant cases In FWPBS INC v Dallas 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 US Supreme Court held that the reasonableness of the legislative judgment combined with a study which the city considered was adequate to support the citys determination that motels permitting room rentals for fewer than ten (10) hours should be included within the licensing scheme As regards the second point the Court held that limiting motel room rentals to ten (10) hours will have no discernible effect on personal bonds as those bonds that are formed from the use of a motel room for fewer than ten (10) hours are not those that have played a critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals and beliefs

The ordinance challenged in the above-cited case merely regulated the targeted businesses It imposed reasonable restrictions hence its validity was upheld

The case of Ermita Malate Hotel and Motel Operators Association Inc v City Mayor of Manila 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 ]

The Ordinance violates Equal Protection Clause

Equal protection requires that all persons or things similarly situated should be treated alike both as to rights conferred and responsibilities imposed Similar subjects in other words should not be treated differently so as to give undue favor to some and unjustly discriminate against others The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances The equal protection of the laws is a pledge of the protection of equal laws It limits governmental discrimination The equal protection clause extends to artificial persons but only insofar as their property is concerned

Legislative bodies are allowed to classify the subjects of legislation If the classification is reasonable the law may operate only on some and not all of the people without violating the equal protection clause The classification must as an indispensable requisite not be arbitrary To be 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

In the Courts view there are no substantial distinctions between motels inns pension houses hotels lodging houses or other similar establishments By definition all are commercial establishments providing lodging and usually meals and other services for the public No reason exists for prohibiting motels and inns but not pension houses hotels lodging houses or other similar establishments The classification in the instant case is invalid as similar subjects are not similarly treated both as to rights conferred and obligations imposed It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance

The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area A noxious establishment does not become any less noxious if located outside the area

The standard where women are used as tools for entertainment is also discriminatory as prostitution mdash one of the hinted ills the Ordinance aims to banish mdash is not a profession exclusive to women Both men and women have an equal propensity to engage in prostitution

CThe 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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

(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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 shallxxx xxx xxx

(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

8

It is well to recall the rulings of the Court in Kwong Sing v City of Manila 105 that

The word regulate as used in subsection (l) section 2444 of the Administrative Code means and includes the power to control to govern and to restrain but regulate should not be construed as synonymous with suppress or prohibit Consequently under the power to regulate laundries the municipal authorities could make proper police regulations as to the mode in which the employment or business shall be exercised

The several powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code it is pertinent to emphasize are separated by semi-colons () the use of which indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to justify being put together in a single enumeration or paragraph These powers therefore should not be confused commingled or consolidated as to create a conglomerated and unified power of regulation suppression and prohibition

The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to regulation among which are beerhouses hotels motels inns pension houses lodging houses and other similar establishments (Section 458 (a) 4 (iv)) public dancing schools public dance halls sauna baths massage parlors and other places for entertainment or amusement (Section 458 (a) 4 (vii)) This enumeration therefore cannot be included as among other events or activities for amusement or entertainment particularly those which tend to disturb the community or annoy the inhabitants or certain forms of amusement or entertainment which the City Council may suspend suppress or prohibit

The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof By reason of its limited powers and the nature thereof said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council Moreover it is a general rule in statutory construction that the express mention of one person thing or consequence is tantamount to an express exclusion of all others Expressio unius est exclusio alterium

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 People v Esguerra 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

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

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

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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

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 Councils powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers It is evident that these establishments may only be regulated in their establishment operation and maintenance

Ordinance also runs counter to the provisions of PD 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

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

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 thereforeultra vires null and void 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 mdash not even under the guise of police power DENIED

4 Pollution Adjudication Board vs Court of Appeals GR No 93981 March 11 1991

FACTS Petitioner Pollution Adjudication Board seeks the court to review the Decision and Resolution promulgated on 7 February 1990 and 10 May 1990 respectively by the Court of Appeals in CA-GR No SP 18821 entitled Solar Textile Finishing Corporation v Pollution Adjudication Board In that Decision and Resolution the Court of Appeals reversed an order of the Regional Trial Court Quezon City Branch 77 in Civil Case No Q-89-2287 dismissing private respondent Solar Textile Finishing Corporations (Solar) petition for certiorari and remanded the case to the trial court for further proceedings

2

An error of judgment is one which the court may commit in the exercise of its jurisdiction and which error is reversible only by an appeal As long as the court acts within its jurisdiction any alleged errors committed in the exercise of its discretion will amount to nothing more than mere errors of judgment correctible by an appeal or a petition for review under Rule 45 of the Rules of Court An error of jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction and which error is correctible only by the extraordinary writ of certiorari

The other errors raised by petitioner pertain to the Ombudsmans opinion on the lack of probable cause to indict respondents These are purported errors in judgment which can be corrected by an appeal although not via a direct appeal to this Court Direct resort to this Court may be had only through the extraordinary writ of certiorari and upon showing that the Ombudsman committed grave abuse of discretion which petitioner failed to demonstrate

It is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well DENIED

2 Carlos Superdrug Corp vs DSWD GR No 166494 June 29 2007

FACTS Petition for Prohibition with Prayer for Preliminary Injunction assailing the constitutionality of Section 4 (a) of Republic Act (RA) No 9257 otherwise known as the Expanded Senior Citizens Act of 2003

Petitioners are domestic corporations and proprietors operating drugstores in the Philippines

Public respondents on the other hand include DSWD DOH DOF DOJ and the DILG which have been specifically tasked to monitor the drugstores compliance with the law promulgate the implementing rules and regulations for the effective implementation of the law and prosecute and revoke the licenses of erring drugstore establishments

February 26 2004-- RA No 9257 amending RA No 7432 was signed into law by President Gloria Macapagal-Arroyo and it became effective on March 21 2004

SEC 4 Privileges for the Senior Citizens mdash The senior citizens shall be entitled to the following

(a) the grant of twenty percent (20) discount from all establishments relative to the utilization of services in hotels and similar lodging establishments restaurants and recreation centers and purchase of medicines in all establishments for the exclusive use or enjoyment of senior citizens including funeral and burial services for the death of senior citizens

xxx xxx xxx

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

May 28 2004--- the DSWD approved and adopted the Implementing Rules and Regulations of RA No 9257 Rule VI Article 8 of which states

Article 8 Tax Deduction of Establishments mdash The establishment may claim the discounts granted under Rule V Section 4 mdash Discounts for Establishments Section 9 Medical and Dental Services in Private Facilities[] and Sections 10 and 11 mdash Air Sea and Land Transportation as tax deduction based on the net cost of the goods sold or services rendered Provided That the cost of the discount shall be allowed as deduction from gross income for the

same taxable year that the discount is granted Provided further That the total amount of the claimed tax deduction net of value added tax if applicable shall be included in their gross sales receipts for tax purposes and shall be subject to proper documentation and to the provisions of the National Internal Revenue Code as amended Provided finally that the implementation of the tax deduction shall be subject to the Revenue Regulations to be issued by the Bureau of Internal Revenue (BIR) and approved by the Department of Finance (DOF)

July 10 2004--- in reference to the query of the Drug Stores Association of the Philippines (DSAP) concerning the meaning of a tax deduction under the Expanded Senior Citizens Act the DOF through Director IV Ma Lourdes B Recente clarified the difference between the Tax Credit (under the Old Senior Citizens Act) and Tax Deduction (under the Expanded Senior Citizens Act) Under a tax deduction scheme the tax deduction on discounts was subtracted from Net Sales together with other deductions which are considered as operating expenses before the Tax Due was computed based on the Net Taxable Income On the other hand under a tax credit scheme the amount of discounts which is the tax credit item was deducted directly from the tax due amount

October 1 2004--- Administrative Order (AO) No 171 or the Policies and Guidelines to Implement the Relevant Provisions of Republic Act 9257 otherwise known as the Expanded Senior Citizens Act of 2003 was issued by the DOH providing the grant of twenty percent (20) discount in the purchase of unbranded generic medicines from all establishments dispensing medicines for the exclusive use of the senior citizens

On November 12 2004--- DOH issued Administrative Order No 177 amending AO No 171 Under AO No 177 the twenty percent discount shall not be limited to the purchase of unbranded generic medicines only but shall extend to both prescription and non-prescription medicines whether branded or generic Thus it stated that [t]he grant of twenty percent (20) discount shall be provided in the purchase of medicines from all establishments dispensing medicines for the exclusive use of the senior citizens

Petitioners assail the constitutionality of Section 4 (a) of the Expanded Senior Citizens Act based on the following grounds

1) The law is confiscatory because it infringes Art III Sec 9 of the Constitution which provides that private property shall not be taken for public use without just compensation

2) It violates the equal protection clause (Art III Sec 1) enshrined in our Constitution which states that no person shall be deprived of life liberty or property without due process of law nor shall any person be denied of the equal protection of the laws and

3) The 20 discount on medicines violates the constitutional guarantee in Article XIII Section 11 that makes essential goods health and other social services available to all people at affordable cost

Petitioners assert that Section 4 (a) of the law is unconstitutional because it constitutes deprivation of private property Compelling drugstore owners and establishments to grant the discount will result in a loss of profit and capital because 1) drugstores impose a mark-up of only 5 to 10 on branded medicines and 2) the law failed to provide a scheme whereby drugstores will be justly compensated for the discount

ISSUE whether the State in promoting the health and welfare of a special group of citizens can impose upon private establishments the burden of partly subsidizing a government program

HELD YES What petitioners are ultimately questioning is the validity of the tax deduction scheme as a reimbursement mechanism for the twenty percent (20) discount that they extend to senior citizens

The permanent reduction in their total revenues is a forced subsidy corresponding to the taking of private property for public use or benefit This constitutes compensable taking for which petitioners would ordinarily become entitled to a just compensation

3

Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator The measure is not the takers gain but the owners loss The word just is used to intensify the meaning of the word compensation and to convey the idea that the equivalent to be rendered for the property to be taken shall be real substantial full and ample

A tax deduction does not offer full reimbursement of the senior citizen discount As such it would not meet the definition of just compensation

The Senior Citizens Act was enacted primarily to maximize the contribution of senior citizens to nation-building and to grant benefits and privileges to them for their improvement and well-being as the State considers them an integral part of our society

The priority given to senior citizens finds its basis in the Constitution as set forth in the law itself Thus the Act provides

SEC 2 Republic Act No 7432 is hereby amended to read as follows

SECTION 1 Declaration of Policies and Objectives mdash xxx xxx xxx

(f) To recognize the important role of the private sector in the improvement of the welfare of senior citizens and to actively seek their partnership

To implement the above policy the law grants a twenty percent discount to senior citizens for medical and dental services and diagnostic and laboratory fees etc etc

As a form of reimbursement the law provides that business establishments extending the twenty percent discount to senior citizens may claim the discount as a tax deduction

The law is a legitimate exercise of police power which similar to the power of eminent domain has general welfare for its object Police power is not capable of an exact definition but 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 to conditions and circumstances thus assuring the greatest benefits Accordingly it has been described as the most essential insistent and the least limitable of powers extending as it does to all the great public needs It is [t]he power vested in the legislature by the constitution to make ordain and establish all manner of wholesome and reasonable laws statutes and ordinances either with penalties or without not repugnant to the constitution as they shall judge to be for the good and welfare of the commonwealth and of the subjects of the same

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

Given these it is incorrect for petitioners to insist that the grant of the senior citizen discount is unduly oppressive to their business because petitioners have not taken time to calculate correctly and come up with a financial report so that they have not been able to show properly whether or not the tax deduction scheme really works greatly to their disadvantage

In treating the discount as a tax deduction petitioners insist that they will incur losses because referring to the DOF Opinion for every P100 senior citizen discount that petitioners would give P068 will be shouldered by them as only P032 will be refunded by the government by way of a tax deduction

To illustrate this point petitioner Carlos Super Drug cited the anti-hypertensive maintenance drug Norvasc as an example According to the latter it acquires Norvasc from the distributors at P3757 per tablet and retails it at P3960 (or at a margin of 5) If it grants a 20 discount to senior citizens or an amount equivalent to P792 then it would have to sell Norvasc at P3168 which translates to a loss from capital of P589 per tablet Even if the government will allow a tax deduction only

P253 per tablet will be refunded and not the full amount of the discount which is P792 In short only 32 of the 20 discount will be reimbursed to the drugstores

Petitioners computation is flawed For purposes of reimbursement the law states that the cost of the discount shall be deducted from gross income the amount of income derived from all sources before deducting allowable expenses which will result in net income Here petitioners tried to show a loss on a per transaction basis which should not be the case An income statement showing an accounting of petitioners sales expenses and net profit (or loss) for a given period could have accurately reflected the effect of the discount on their income Absent any financial statement petitioners cannot substantiate their claim that they will be operating at a loss should they give the discount In addition the computation was erroneously based on the assumption that their customers consisted wholly of senior citizens Lastly the 32 tax rate is to be imposed on income not on the amount of the discount

While the Constitution protects property rights petitioners must accept the realities of business and the State in the exercise of police power can intervene in the operations of a business which may result in an impairment of property rights in the process

While Article XIII of the Constitution provides the precept for the protection of property various laws and jurisprudence particularly on agrarian reform and the regulation of contracts and public utilities continuously serve as a reminder that the right to property can be relinquished upon the command of the State for the promotion of public good

Without sufficient proof that Section 4 (a) of RA No 9257 is arbitrary and that the continued implementation of the same would be unconscionably detrimental to petitioners the Court will refrain from quashing a legislative act DISMISSED

3 City of Manila vs Hon Perfecto Laguio GR No 118127 August 12 2005

FACTS Petition under Rule 45 (then Rule 42) of the Revised Rules on Civil Procedure seeking the reversal of the Decision in Civil Case No 93-66511 of the Regional Trial Court (RTC) of Manila Branch 18 (lower court) and questioning the validity of Ordinance No 7783 (the Ordinance) of the City of Manila

28 June 1993--- Private respondent Malate Tourist Development Corporation (MTDC)which is a corporation engaged in the business of operating hotels motels hostels and lodging houses filed a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction andor Temporary Restraining Order (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

Enacted by the City Council on 9 March 1993 and approved by petitioner City Mayor on 30 March 1993 the said Ordinance No 778[3] is entitled mdashAN 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

SECTION 1Any 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 PD 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

1Sauna Parlors 2Massage Parlors 3Karaoke Bars 4Beerhouses 5Night Clubs 6Day Clubs

7Super Clubs 8Discotheques 9Cabarets 10Dance Halls 11Motels 12Inns

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SEC 2The 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 XXXXX

In the RTC Petition MTDC argued that the Ordinance erroneously and improperly included in its enumeration of prohibited establishments motels and inns such as MTDCs Victoria Court considering that these were not establishments for amusement or entertainment and they were not services or facilities for entertainment nor did they use women as tools for entertainment and neither did they disturb the community annoy the inhabitants or adversely affect the social and moral welfare of the community

MTDC further advanced that the Ordinance was invalid and unconstitutional for the following reasons (1) The City Council has no power to prohibit the operation of motels as Section 458 (a) 4 (iv) of the Local Government Code of 1991 (the Code) grants to the City Council only the power to regulate the establishment operation and maintenance of hotels motels inns pension houses lodging houses and other similar establishments (2) TheOrdinance is void as it is violative of Presidential Decree (PD) No 499 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 MTDCs constitutional rights in that (a) it is confiscatory and constitutes an invasion of plaintiffs property rights (b) the City Council has no power to find as a fact that a particular thing is a nuisance per se nor does it have the power to extrajudicially destroy it and (6) The Ordinance constitutes a denial of equal protection under the law as no reasonable basis exists for prohibiting the operation of motels and inns but not pension houses hotels lodging houses or other similar establishments and for prohibiting said business in the Ermita-Malate area but not outside of this area

In their Answer 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 which reads thus

Section 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

(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

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) ofRepublic Act No 409 1 otherwise known as the Revised Charter of the City of Manila (Revised Charter of Manila) which reads thus

ARTICLE III THE MUNICIPAL BOARD xxx xxx xxx

Section 18Legislative powers mdash The Municipal Board shall have the following legislative powersxxx xxx xxx

(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

Petitioners also maintained that there was no inconsistency between PD 499 and the Ordinance as the latter simply disauthorized certain forms of businesses and allowed the Ermita-Malate area to remain a commercial zone The Ordinance the petitioners likewise claimed cannot be assailed as ex post facto as it was prospective in operation 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

28 June 1993--- respondent Judge Perfecto AS Laguio Jr (Judge Laguio) issued an ex-parte temporary restraining order against the enforcement of the Ordinance

16 July 1993--- again in an intrepid gesture he granted the writ of preliminary injunction prayed for by MTDC

25 November 1994-- Judge Laguio rendered writ of preliminary injunction permanent and the said ordinance null and void

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 PD 499 which allows operators of all kinds of commercial establishments except those specified therein and (3) It erred in declaring the Ordinance void and unconstitutional

In the Petition and in its Memorandum 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 They allege that the Ordinance is a valid exercise of police power it does not contravene PD 499 and that it enjoys the presumption of validity

27 May 1996---In its Memorandum 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

ISSUE WON the lower court erred in declaring the Ordinance void and unconstitutional WON the requisites of exercise of police powers is met

HELD NO 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

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

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The Ordinance must satisfy two requirements it must pass muster under the test of constitutionality and the test of consistency with the prevailing laws That ordinances should be constitutional uphold the principle of the supremacy of the Constitution The requirement that the enactment must not violate existing law gives stress to the precept that local government units are able to legislate only by virtue of their derivative legislative power a delegation of legislative power from the national legislature The delegate cannot be superior to the principal or exercise powers higher than those of the latter

The national legislature is still the principal of the local government units which cannot defy its will or modify or violate it

The Ordinance was passed by the City Council in the exercise of its police power an enactment of the City Council acting as agent of Congress Local government units as agencies of the State are endowed with police power in order to effectively accomplish and carry out the declared objects of their creation This delegated police power is found in Section 16 of the Code known as the general welfare clause viz

SECTION 16General Welfare mdash 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 provincecitymunicipality and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the provincecitymunicipality provided under the Code

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

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 (Sec 1) There is no controlling and precise definition of due process It furnishes though a standard to which governmental action should conform in order that deprivation of life liberty or property in each appropriate case be valid This standard is aptly described as a responsiveness to the supremacy of reason obedience to the dictates of justice and as such it is a limitation upon the exercise of the police power

The purpose of the guaranty is to prevent governmental encroachment against the life liberty and property of individuals to secure the individual from the arbitrary exercise of the powers of the government unrestrained by the established principles of private rights and distributive justice to protect property from confiscation by legislative enactments from seizure forfeiture and destruction without a trial and conviction by the ordinary mode of judicial procedure and to secure to all persons equal and impartial justice and the benefit of the general law

This clause has been interpreted as imposing two separate limits on government usually called procedural due process and substantive due process

i Procedural due process as the phrase implies refers to the procedures that the government must follow before it deprives a person of life liberty or property Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action

ii Substantive due process asks whether the government has an adequate reason for taking away a persons life liberty or property In other words substantive due process looks to whether there is a sufficient justification for the governments action Case law in the United States (US) tells us that whether there is such a justification depends very much on the

level of scrutiny used For example if a law is in an area where only rational basis review is applied substantive due process is met so long as the law is rationally related to a legitimate government purpose But if it is an area where strict scrutiny is used such as for protecting fundamental rights then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose

The police power granted to local government units must always be exercised with utmost observance of the rights of the people to due process and equal protection of the law Such power cannot be exercised whimsically arbitrarily or despotically as its exercise is subject to a qualification limitation or restriction demanded by the respect and regard due to the prescription of the fundamental law particularly those forming part of the Bill of Rights Individual rights it bears emphasis may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare Due process requires the intrinsic validity of the law in interfering with the rights of the person to his life liberty and property

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

1 it must appear that the interests of the public generally as distinguished from those of a particular class require an interference with private rights

2 the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment for even under the guise of protecting the public interest personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded

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

The closing down and transfer of businesses or their conversion into businesses allowed under the Ordinance have no reasonable relation to the accomplishment of its purposes Otherwise stated the prohibition of the enumerated establishments will not per se protect and promote the social and moral welfare of the community it will not in itself eradicate the alluded social ills of prostitution adultery fornication nor will it arrest the spread of sexual disease in Manila

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

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 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

In Section 3 thereof owners andor operators of the enumerated establishments are given three (3) months from the date of approval of the Ordinance within which to wind up business operations or to transfer to any place outside the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area Further it states in Section 4 that in cases of subsequent violations of the provisions of the Ordinance the premises of the erring establishment shall be closed and padlocked permanently It is readily apparent that the means employed by the Ordinance for the achievement of its purposes the governmental interference itself infringes on the constitutional guarantees of a persons fundamental right to liberty and property

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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 faculties with which he has been endowed by his Creator subject only to such restraint as are necessary for the common welfare In accordance with this case the rights of the 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

Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in intimate sexual conduct within the motels premises mdash be it stressed that their consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons The liberty protected by the Constitution allows persons the right to make this choice Their right to liberty under the due process 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

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

Liberty in the constitutional sense not only means freedom from unlawful government restraint it must include privacy as well if it is to be a repository of freedom The right to be let alone is the beginning of all freedom mdash it is the most comprehensive of rights and the right most valued by civilized men

The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect

In addition the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial use of its property

The Constitution expressly provides in Article III Section 9 that private property shall not be taken for public use without just compensation The provision is the most important protection of property rights in the Constitution This is a restriction on the general power of the government to take property The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others In part too it is about loss spreading If the government takes away a persons property to benefit society then society should pay The principal purpose of the guarantee is to bar the Government from forcing some people alone to bear public burdens which in all fairness and justice should be borne by the public as a whole

There are two different types of taking that can be identified A possessory taking occurs when the government confiscates or physically occupies property A regulatory taking occurs when the governments regulation leaves no reasonable economically viable use of the property

In the landmark case of Pennsylvania Coal v Mahon it was held that a taking also could be found if government regulation of the use of property went too far When regulation reaches a certain magnitude in most if not in all cases there must be an exercise of eminent domain and compensation to support the act While property may be regulated to a certain extent if regulation goes too far it will be recognized as a taking

What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use A regulation that permanently denies all economically beneficial or productive use of land is from the owners point of view equivalent to a taking unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable

A regulation which denies all economically beneficial or productive use of land will require compensation under the takings clause Where a regulation places limitations on land that fall short of eliminating all economically beneficial use a taking

nonetheless may have occurred depending on a complex of factors including the regulations economic effect on the landowner the extent to which the regulation interferes with reasonable investment-backed expectations and the character of government action

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

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 mdash to transfer to any place outside of the Ermita-Malate area or to convert into allowed businesses mdash 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 penalty of closure likewise constitutes unlawful taking that should be compensated by the government The burden on the owner to convert or transfer his business otherwise it will be closed permanently after a subsequent violation should be borne by the public as this end benefits them as a whole

Petitioners cannot take refuge in classifying the measure as a zoning ordinance A zoning ordinance although a valid exercise of police power which limits a wholesome property to a use which can not reasonably be made of it constitutes the taking of such property without just compensation Private property which is not noxious nor intended for noxious purposes may not by zoning be destroyed without compensation Such principle finds no support in the principles of justice as we know them The police powers of local government units which have always received broad and liberal interpretation cannot be stretched to cover this particular taking

Distinction should be made between destruction from necessity and eminent domain It needs restating that the property taken in the exercise of police power is destroyed because it is noxious or intended for a noxious purpose while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore wholesome If it be of public benefit that a 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

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

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

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

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

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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

[In contrast to two relevant cases In FWPBS INC v Dallas 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 US Supreme Court held that the reasonableness of the legislative judgment combined with a study which the city considered was adequate to support the citys determination that motels permitting room rentals for fewer than ten (10) hours should be included within the licensing scheme As regards the second point the Court held that limiting motel room rentals to ten (10) hours will have no discernible effect on personal bonds as those bonds that are formed from the use of a motel room for fewer than ten (10) hours are not those that have played a critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals and beliefs

The ordinance challenged in the above-cited case merely regulated the targeted businesses It imposed reasonable restrictions hence its validity was upheld

The case of Ermita Malate Hotel and Motel Operators Association Inc v City Mayor of Manila 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 ]

The Ordinance violates Equal Protection Clause

Equal protection requires that all persons or things similarly situated should be treated alike both as to rights conferred and responsibilities imposed Similar subjects in other words should not be treated differently so as to give undue favor to some and unjustly discriminate against others The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances The equal protection of the laws is a pledge of the protection of equal laws It limits governmental discrimination The equal protection clause extends to artificial persons but only insofar as their property is concerned

Legislative bodies are allowed to classify the subjects of legislation If the classification is reasonable the law may operate only on some and not all of the people without violating the equal protection clause The classification must as an indispensable requisite not be arbitrary To be 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

In the Courts view there are no substantial distinctions between motels inns pension houses hotels lodging houses or other similar establishments By definition all are commercial establishments providing lodging and usually meals and other services for the public No reason exists for prohibiting motels and inns but not pension houses hotels lodging houses or other similar establishments The classification in the instant case is invalid as similar subjects are not similarly treated both as to rights conferred and obligations imposed It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance

The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area A noxious establishment does not become any less noxious if located outside the area

The standard where women are used as tools for entertainment is also discriminatory as prostitution mdash one of the hinted ills the Ordinance aims to banish mdash is not a profession exclusive to women Both men and women have an equal propensity to engage in prostitution

CThe 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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

(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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 shallxxx xxx xxx

(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

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It is well to recall the rulings of the Court in Kwong Sing v City of Manila 105 that

The word regulate as used in subsection (l) section 2444 of the Administrative Code means and includes the power to control to govern and to restrain but regulate should not be construed as synonymous with suppress or prohibit Consequently under the power to regulate laundries the municipal authorities could make proper police regulations as to the mode in which the employment or business shall be exercised

The several powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code it is pertinent to emphasize are separated by semi-colons () the use of which indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to justify being put together in a single enumeration or paragraph These powers therefore should not be confused commingled or consolidated as to create a conglomerated and unified power of regulation suppression and prohibition

The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to regulation among which are beerhouses hotels motels inns pension houses lodging houses and other similar establishments (Section 458 (a) 4 (iv)) public dancing schools public dance halls sauna baths massage parlors and other places for entertainment or amusement (Section 458 (a) 4 (vii)) This enumeration therefore cannot be included as among other events or activities for amusement or entertainment particularly those which tend to disturb the community or annoy the inhabitants or certain forms of amusement or entertainment which the City Council may suspend suppress or prohibit

The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof By reason of its limited powers and the nature thereof said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council Moreover it is a general rule in statutory construction that the express mention of one person thing or consequence is tantamount to an express exclusion of all others Expressio unius est exclusio alterium

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 People v Esguerra 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

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

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

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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

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 Councils powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers It is evident that these establishments may only be regulated in their establishment operation and maintenance

Ordinance also runs counter to the provisions of PD 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

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

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 thereforeultra vires null and void 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 mdash not even under the guise of police power DENIED

4 Pollution Adjudication Board vs Court of Appeals GR No 93981 March 11 1991

FACTS Petitioner Pollution Adjudication Board seeks the court to review the Decision and Resolution promulgated on 7 February 1990 and 10 May 1990 respectively by the Court of Appeals in CA-GR No SP 18821 entitled Solar Textile Finishing Corporation v Pollution Adjudication Board In that Decision and Resolution the Court of Appeals reversed an order of the Regional Trial Court Quezon City Branch 77 in Civil Case No Q-89-2287 dismissing private respondent Solar Textile Finishing Corporations (Solar) petition for certiorari and remanded the case to the trial court for further proceedings

3

Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator The measure is not the takers gain but the owners loss The word just is used to intensify the meaning of the word compensation and to convey the idea that the equivalent to be rendered for the property to be taken shall be real substantial full and ample

A tax deduction does not offer full reimbursement of the senior citizen discount As such it would not meet the definition of just compensation

The Senior Citizens Act was enacted primarily to maximize the contribution of senior citizens to nation-building and to grant benefits and privileges to them for their improvement and well-being as the State considers them an integral part of our society

The priority given to senior citizens finds its basis in the Constitution as set forth in the law itself Thus the Act provides

SEC 2 Republic Act No 7432 is hereby amended to read as follows

SECTION 1 Declaration of Policies and Objectives mdash xxx xxx xxx

(f) To recognize the important role of the private sector in the improvement of the welfare of senior citizens and to actively seek their partnership

To implement the above policy the law grants a twenty percent discount to senior citizens for medical and dental services and diagnostic and laboratory fees etc etc

As a form of reimbursement the law provides that business establishments extending the twenty percent discount to senior citizens may claim the discount as a tax deduction

The law is a legitimate exercise of police power which similar to the power of eminent domain has general welfare for its object Police power is not capable of an exact definition but 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 to conditions and circumstances thus assuring the greatest benefits Accordingly it has been described as the most essential insistent and the least limitable of powers extending as it does to all the great public needs It is [t]he power vested in the legislature by the constitution to make ordain and establish all manner of wholesome and reasonable laws statutes and ordinances either with penalties or without not repugnant to the constitution as they shall judge to be for the good and welfare of the commonwealth and of the subjects of the same

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

Given these it is incorrect for petitioners to insist that the grant of the senior citizen discount is unduly oppressive to their business because petitioners have not taken time to calculate correctly and come up with a financial report so that they have not been able to show properly whether or not the tax deduction scheme really works greatly to their disadvantage

In treating the discount as a tax deduction petitioners insist that they will incur losses because referring to the DOF Opinion for every P100 senior citizen discount that petitioners would give P068 will be shouldered by them as only P032 will be refunded by the government by way of a tax deduction

To illustrate this point petitioner Carlos Super Drug cited the anti-hypertensive maintenance drug Norvasc as an example According to the latter it acquires Norvasc from the distributors at P3757 per tablet and retails it at P3960 (or at a margin of 5) If it grants a 20 discount to senior citizens or an amount equivalent to P792 then it would have to sell Norvasc at P3168 which translates to a loss from capital of P589 per tablet Even if the government will allow a tax deduction only

P253 per tablet will be refunded and not the full amount of the discount which is P792 In short only 32 of the 20 discount will be reimbursed to the drugstores

Petitioners computation is flawed For purposes of reimbursement the law states that the cost of the discount shall be deducted from gross income the amount of income derived from all sources before deducting allowable expenses which will result in net income Here petitioners tried to show a loss on a per transaction basis which should not be the case An income statement showing an accounting of petitioners sales expenses and net profit (or loss) for a given period could have accurately reflected the effect of the discount on their income Absent any financial statement petitioners cannot substantiate their claim that they will be operating at a loss should they give the discount In addition the computation was erroneously based on the assumption that their customers consisted wholly of senior citizens Lastly the 32 tax rate is to be imposed on income not on the amount of the discount

While the Constitution protects property rights petitioners must accept the realities of business and the State in the exercise of police power can intervene in the operations of a business which may result in an impairment of property rights in the process

While Article XIII of the Constitution provides the precept for the protection of property various laws and jurisprudence particularly on agrarian reform and the regulation of contracts and public utilities continuously serve as a reminder that the right to property can be relinquished upon the command of the State for the promotion of public good

Without sufficient proof that Section 4 (a) of RA No 9257 is arbitrary and that the continued implementation of the same would be unconscionably detrimental to petitioners the Court will refrain from quashing a legislative act DISMISSED

3 City of Manila vs Hon Perfecto Laguio GR No 118127 August 12 2005

FACTS Petition under Rule 45 (then Rule 42) of the Revised Rules on Civil Procedure seeking the reversal of the Decision in Civil Case No 93-66511 of the Regional Trial Court (RTC) of Manila Branch 18 (lower court) and questioning the validity of Ordinance No 7783 (the Ordinance) of the City of Manila

28 June 1993--- Private respondent Malate Tourist Development Corporation (MTDC)which is a corporation engaged in the business of operating hotels motels hostels and lodging houses filed a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction andor Temporary Restraining Order (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

Enacted by the City Council on 9 March 1993 and approved by petitioner City Mayor on 30 March 1993 the said Ordinance No 778[3] is entitled mdashAN 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

SECTION 1Any 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 PD 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

1Sauna Parlors 2Massage Parlors 3Karaoke Bars 4Beerhouses 5Night Clubs 6Day Clubs

7Super Clubs 8Discotheques 9Cabarets 10Dance Halls 11Motels 12Inns

4

SEC 2The 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 XXXXX

In the RTC Petition MTDC argued that the Ordinance erroneously and improperly included in its enumeration of prohibited establishments motels and inns such as MTDCs Victoria Court considering that these were not establishments for amusement or entertainment and they were not services or facilities for entertainment nor did they use women as tools for entertainment and neither did they disturb the community annoy the inhabitants or adversely affect the social and moral welfare of the community

MTDC further advanced that the Ordinance was invalid and unconstitutional for the following reasons (1) The City Council has no power to prohibit the operation of motels as Section 458 (a) 4 (iv) of the Local Government Code of 1991 (the Code) grants to the City Council only the power to regulate the establishment operation and maintenance of hotels motels inns pension houses lodging houses and other similar establishments (2) TheOrdinance is void as it is violative of Presidential Decree (PD) No 499 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 MTDCs constitutional rights in that (a) it is confiscatory and constitutes an invasion of plaintiffs property rights (b) the City Council has no power to find as a fact that a particular thing is a nuisance per se nor does it have the power to extrajudicially destroy it and (6) The Ordinance constitutes a denial of equal protection under the law as no reasonable basis exists for prohibiting the operation of motels and inns but not pension houses hotels lodging houses or other similar establishments and for prohibiting said business in the Ermita-Malate area but not outside of this area

In their Answer 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 which reads thus

Section 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

(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

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) ofRepublic Act No 409 1 otherwise known as the Revised Charter of the City of Manila (Revised Charter of Manila) which reads thus

ARTICLE III THE MUNICIPAL BOARD xxx xxx xxx

Section 18Legislative powers mdash The Municipal Board shall have the following legislative powersxxx xxx xxx

(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

Petitioners also maintained that there was no inconsistency between PD 499 and the Ordinance as the latter simply disauthorized certain forms of businesses and allowed the Ermita-Malate area to remain a commercial zone The Ordinance the petitioners likewise claimed cannot be assailed as ex post facto as it was prospective in operation 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

28 June 1993--- respondent Judge Perfecto AS Laguio Jr (Judge Laguio) issued an ex-parte temporary restraining order against the enforcement of the Ordinance

16 July 1993--- again in an intrepid gesture he granted the writ of preliminary injunction prayed for by MTDC

25 November 1994-- Judge Laguio rendered writ of preliminary injunction permanent and the said ordinance null and void

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 PD 499 which allows operators of all kinds of commercial establishments except those specified therein and (3) It erred in declaring the Ordinance void and unconstitutional

In the Petition and in its Memorandum 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 They allege that the Ordinance is a valid exercise of police power it does not contravene PD 499 and that it enjoys the presumption of validity

27 May 1996---In its Memorandum 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

ISSUE WON the lower court erred in declaring the Ordinance void and unconstitutional WON the requisites of exercise of police powers is met

HELD NO 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

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

5

The Ordinance must satisfy two requirements it must pass muster under the test of constitutionality and the test of consistency with the prevailing laws That ordinances should be constitutional uphold the principle of the supremacy of the Constitution The requirement that the enactment must not violate existing law gives stress to the precept that local government units are able to legislate only by virtue of their derivative legislative power a delegation of legislative power from the national legislature The delegate cannot be superior to the principal or exercise powers higher than those of the latter

The national legislature is still the principal of the local government units which cannot defy its will or modify or violate it

The Ordinance was passed by the City Council in the exercise of its police power an enactment of the City Council acting as agent of Congress Local government units as agencies of the State are endowed with police power in order to effectively accomplish and carry out the declared objects of their creation This delegated police power is found in Section 16 of the Code known as the general welfare clause viz

SECTION 16General Welfare mdash 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 provincecitymunicipality and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the provincecitymunicipality provided under the Code

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

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 (Sec 1) There is no controlling and precise definition of due process It furnishes though a standard to which governmental action should conform in order that deprivation of life liberty or property in each appropriate case be valid This standard is aptly described as a responsiveness to the supremacy of reason obedience to the dictates of justice and as such it is a limitation upon the exercise of the police power

The purpose of the guaranty is to prevent governmental encroachment against the life liberty and property of individuals to secure the individual from the arbitrary exercise of the powers of the government unrestrained by the established principles of private rights and distributive justice to protect property from confiscation by legislative enactments from seizure forfeiture and destruction without a trial and conviction by the ordinary mode of judicial procedure and to secure to all persons equal and impartial justice and the benefit of the general law

This clause has been interpreted as imposing two separate limits on government usually called procedural due process and substantive due process

i Procedural due process as the phrase implies refers to the procedures that the government must follow before it deprives a person of life liberty or property Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action

ii Substantive due process asks whether the government has an adequate reason for taking away a persons life liberty or property In other words substantive due process looks to whether there is a sufficient justification for the governments action Case law in the United States (US) tells us that whether there is such a justification depends very much on the

level of scrutiny used For example if a law is in an area where only rational basis review is applied substantive due process is met so long as the law is rationally related to a legitimate government purpose But if it is an area where strict scrutiny is used such as for protecting fundamental rights then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose

The police power granted to local government units must always be exercised with utmost observance of the rights of the people to due process and equal protection of the law Such power cannot be exercised whimsically arbitrarily or despotically as its exercise is subject to a qualification limitation or restriction demanded by the respect and regard due to the prescription of the fundamental law particularly those forming part of the Bill of Rights Individual rights it bears emphasis may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare Due process requires the intrinsic validity of the law in interfering with the rights of the person to his life liberty and property

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

1 it must appear that the interests of the public generally as distinguished from those of a particular class require an interference with private rights

2 the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment for even under the guise of protecting the public interest personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded

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

The closing down and transfer of businesses or their conversion into businesses allowed under the Ordinance have no reasonable relation to the accomplishment of its purposes Otherwise stated the prohibition of the enumerated establishments will not per se protect and promote the social and moral welfare of the community it will not in itself eradicate the alluded social ills of prostitution adultery fornication nor will it arrest the spread of sexual disease in Manila

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

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 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

In Section 3 thereof owners andor operators of the enumerated establishments are given three (3) months from the date of approval of the Ordinance within which to wind up business operations or to transfer to any place outside the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area Further it states in Section 4 that in cases of subsequent violations of the provisions of the Ordinance the premises of the erring establishment shall be closed and padlocked permanently It is readily apparent that the means employed by the Ordinance for the achievement of its purposes the governmental interference itself infringes on the constitutional guarantees of a persons fundamental right to liberty and property

6

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 faculties with which he has been endowed by his Creator subject only to such restraint as are necessary for the common welfare In accordance with this case the rights of the 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

Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in intimate sexual conduct within the motels premises mdash be it stressed that their consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons The liberty protected by the Constitution allows persons the right to make this choice Their right to liberty under the due process 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

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

Liberty in the constitutional sense not only means freedom from unlawful government restraint it must include privacy as well if it is to be a repository of freedom The right to be let alone is the beginning of all freedom mdash it is the most comprehensive of rights and the right most valued by civilized men

The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect

In addition the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial use of its property

The Constitution expressly provides in Article III Section 9 that private property shall not be taken for public use without just compensation The provision is the most important protection of property rights in the Constitution This is a restriction on the general power of the government to take property The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others In part too it is about loss spreading If the government takes away a persons property to benefit society then society should pay The principal purpose of the guarantee is to bar the Government from forcing some people alone to bear public burdens which in all fairness and justice should be borne by the public as a whole

There are two different types of taking that can be identified A possessory taking occurs when the government confiscates or physically occupies property A regulatory taking occurs when the governments regulation leaves no reasonable economically viable use of the property

In the landmark case of Pennsylvania Coal v Mahon it was held that a taking also could be found if government regulation of the use of property went too far When regulation reaches a certain magnitude in most if not in all cases there must be an exercise of eminent domain and compensation to support the act While property may be regulated to a certain extent if regulation goes too far it will be recognized as a taking

What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use A regulation that permanently denies all economically beneficial or productive use of land is from the owners point of view equivalent to a taking unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable

A regulation which denies all economically beneficial or productive use of land will require compensation under the takings clause Where a regulation places limitations on land that fall short of eliminating all economically beneficial use a taking

nonetheless may have occurred depending on a complex of factors including the regulations economic effect on the landowner the extent to which the regulation interferes with reasonable investment-backed expectations and the character of government action

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

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 mdash to transfer to any place outside of the Ermita-Malate area or to convert into allowed businesses mdash 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 penalty of closure likewise constitutes unlawful taking that should be compensated by the government The burden on the owner to convert or transfer his business otherwise it will be closed permanently after a subsequent violation should be borne by the public as this end benefits them as a whole

Petitioners cannot take refuge in classifying the measure as a zoning ordinance A zoning ordinance although a valid exercise of police power which limits a wholesome property to a use which can not reasonably be made of it constitutes the taking of such property without just compensation Private property which is not noxious nor intended for noxious purposes may not by zoning be destroyed without compensation Such principle finds no support in the principles of justice as we know them The police powers of local government units which have always received broad and liberal interpretation cannot be stretched to cover this particular taking

Distinction should be made between destruction from necessity and eminent domain It needs restating that the property taken in the exercise of police power is destroyed because it is noxious or intended for a noxious purpose while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore wholesome If it be of public benefit that a 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

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

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

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

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

7

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

[In contrast to two relevant cases In FWPBS INC v Dallas 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 US Supreme Court held that the reasonableness of the legislative judgment combined with a study which the city considered was adequate to support the citys determination that motels permitting room rentals for fewer than ten (10) hours should be included within the licensing scheme As regards the second point the Court held that limiting motel room rentals to ten (10) hours will have no discernible effect on personal bonds as those bonds that are formed from the use of a motel room for fewer than ten (10) hours are not those that have played a critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals and beliefs

The ordinance challenged in the above-cited case merely regulated the targeted businesses It imposed reasonable restrictions hence its validity was upheld

The case of Ermita Malate Hotel and Motel Operators Association Inc v City Mayor of Manila 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 ]

The Ordinance violates Equal Protection Clause

Equal protection requires that all persons or things similarly situated should be treated alike both as to rights conferred and responsibilities imposed Similar subjects in other words should not be treated differently so as to give undue favor to some and unjustly discriminate against others The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances The equal protection of the laws is a pledge of the protection of equal laws It limits governmental discrimination The equal protection clause extends to artificial persons but only insofar as their property is concerned

Legislative bodies are allowed to classify the subjects of legislation If the classification is reasonable the law may operate only on some and not all of the people without violating the equal protection clause The classification must as an indispensable requisite not be arbitrary To be 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

In the Courts view there are no substantial distinctions between motels inns pension houses hotels lodging houses or other similar establishments By definition all are commercial establishments providing lodging and usually meals and other services for the public No reason exists for prohibiting motels and inns but not pension houses hotels lodging houses or other similar establishments The classification in the instant case is invalid as similar subjects are not similarly treated both as to rights conferred and obligations imposed It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance

The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area A noxious establishment does not become any less noxious if located outside the area

The standard where women are used as tools for entertainment is also discriminatory as prostitution mdash one of the hinted ills the Ordinance aims to banish mdash is not a profession exclusive to women Both men and women have an equal propensity to engage in prostitution

CThe 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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

(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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 shallxxx xxx xxx

(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

8

It is well to recall the rulings of the Court in Kwong Sing v City of Manila 105 that

The word regulate as used in subsection (l) section 2444 of the Administrative Code means and includes the power to control to govern and to restrain but regulate should not be construed as synonymous with suppress or prohibit Consequently under the power to regulate laundries the municipal authorities could make proper police regulations as to the mode in which the employment or business shall be exercised

The several powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code it is pertinent to emphasize are separated by semi-colons () the use of which indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to justify being put together in a single enumeration or paragraph These powers therefore should not be confused commingled or consolidated as to create a conglomerated and unified power of regulation suppression and prohibition

The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to regulation among which are beerhouses hotels motels inns pension houses lodging houses and other similar establishments (Section 458 (a) 4 (iv)) public dancing schools public dance halls sauna baths massage parlors and other places for entertainment or amusement (Section 458 (a) 4 (vii)) This enumeration therefore cannot be included as among other events or activities for amusement or entertainment particularly those which tend to disturb the community or annoy the inhabitants or certain forms of amusement or entertainment which the City Council may suspend suppress or prohibit

The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof By reason of its limited powers and the nature thereof said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council Moreover it is a general rule in statutory construction that the express mention of one person thing or consequence is tantamount to an express exclusion of all others Expressio unius est exclusio alterium

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 People v Esguerra 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

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

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

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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

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 Councils powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers It is evident that these establishments may only be regulated in their establishment operation and maintenance

Ordinance also runs counter to the provisions of PD 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

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

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 thereforeultra vires null and void 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 mdash not even under the guise of police power DENIED

4 Pollution Adjudication Board vs Court of Appeals GR No 93981 March 11 1991

FACTS Petitioner Pollution Adjudication Board seeks the court to review the Decision and Resolution promulgated on 7 February 1990 and 10 May 1990 respectively by the Court of Appeals in CA-GR No SP 18821 entitled Solar Textile Finishing Corporation v Pollution Adjudication Board In that Decision and Resolution the Court of Appeals reversed an order of the Regional Trial Court Quezon City Branch 77 in Civil Case No Q-89-2287 dismissing private respondent Solar Textile Finishing Corporations (Solar) petition for certiorari and remanded the case to the trial court for further proceedings

4

SEC 2The 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 XXXXX

In the RTC Petition MTDC argued that the Ordinance erroneously and improperly included in its enumeration of prohibited establishments motels and inns such as MTDCs Victoria Court considering that these were not establishments for amusement or entertainment and they were not services or facilities for entertainment nor did they use women as tools for entertainment and neither did they disturb the community annoy the inhabitants or adversely affect the social and moral welfare of the community

MTDC further advanced that the Ordinance was invalid and unconstitutional for the following reasons (1) The City Council has no power to prohibit the operation of motels as Section 458 (a) 4 (iv) of the Local Government Code of 1991 (the Code) grants to the City Council only the power to regulate the establishment operation and maintenance of hotels motels inns pension houses lodging houses and other similar establishments (2) TheOrdinance is void as it is violative of Presidential Decree (PD) No 499 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 MTDCs constitutional rights in that (a) it is confiscatory and constitutes an invasion of plaintiffs property rights (b) the City Council has no power to find as a fact that a particular thing is a nuisance per se nor does it have the power to extrajudicially destroy it and (6) The Ordinance constitutes a denial of equal protection under the law as no reasonable basis exists for prohibiting the operation of motels and inns but not pension houses hotels lodging houses or other similar establishments and for prohibiting said business in the Ermita-Malate area but not outside of this area

In their Answer 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 which reads thus

Section 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

(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

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) ofRepublic Act No 409 1 otherwise known as the Revised Charter of the City of Manila (Revised Charter of Manila) which reads thus

ARTICLE III THE MUNICIPAL BOARD xxx xxx xxx

Section 18Legislative powers mdash The Municipal Board shall have the following legislative powersxxx xxx xxx

(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

Petitioners also maintained that there was no inconsistency between PD 499 and the Ordinance as the latter simply disauthorized certain forms of businesses and allowed the Ermita-Malate area to remain a commercial zone The Ordinance the petitioners likewise claimed cannot be assailed as ex post facto as it was prospective in operation 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

28 June 1993--- respondent Judge Perfecto AS Laguio Jr (Judge Laguio) issued an ex-parte temporary restraining order against the enforcement of the Ordinance

16 July 1993--- again in an intrepid gesture he granted the writ of preliminary injunction prayed for by MTDC

25 November 1994-- Judge Laguio rendered writ of preliminary injunction permanent and the said ordinance null and void

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 PD 499 which allows operators of all kinds of commercial establishments except those specified therein and (3) It erred in declaring the Ordinance void and unconstitutional

In the Petition and in its Memorandum 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 They allege that the Ordinance is a valid exercise of police power it does not contravene PD 499 and that it enjoys the presumption of validity

27 May 1996---In its Memorandum 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

ISSUE WON the lower court erred in declaring the Ordinance void and unconstitutional WON the requisites of exercise of police powers is met

HELD NO 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

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

5

The Ordinance must satisfy two requirements it must pass muster under the test of constitutionality and the test of consistency with the prevailing laws That ordinances should be constitutional uphold the principle of the supremacy of the Constitution The requirement that the enactment must not violate existing law gives stress to the precept that local government units are able to legislate only by virtue of their derivative legislative power a delegation of legislative power from the national legislature The delegate cannot be superior to the principal or exercise powers higher than those of the latter

The national legislature is still the principal of the local government units which cannot defy its will or modify or violate it

The Ordinance was passed by the City Council in the exercise of its police power an enactment of the City Council acting as agent of Congress Local government units as agencies of the State are endowed with police power in order to effectively accomplish and carry out the declared objects of their creation This delegated police power is found in Section 16 of the Code known as the general welfare clause viz

SECTION 16General Welfare mdash 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 provincecitymunicipality and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the provincecitymunicipality provided under the Code

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

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 (Sec 1) There is no controlling and precise definition of due process It furnishes though a standard to which governmental action should conform in order that deprivation of life liberty or property in each appropriate case be valid This standard is aptly described as a responsiveness to the supremacy of reason obedience to the dictates of justice and as such it is a limitation upon the exercise of the police power

The purpose of the guaranty is to prevent governmental encroachment against the life liberty and property of individuals to secure the individual from the arbitrary exercise of the powers of the government unrestrained by the established principles of private rights and distributive justice to protect property from confiscation by legislative enactments from seizure forfeiture and destruction without a trial and conviction by the ordinary mode of judicial procedure and to secure to all persons equal and impartial justice and the benefit of the general law

This clause has been interpreted as imposing two separate limits on government usually called procedural due process and substantive due process

i Procedural due process as the phrase implies refers to the procedures that the government must follow before it deprives a person of life liberty or property Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action

ii Substantive due process asks whether the government has an adequate reason for taking away a persons life liberty or property In other words substantive due process looks to whether there is a sufficient justification for the governments action Case law in the United States (US) tells us that whether there is such a justification depends very much on the

level of scrutiny used For example if a law is in an area where only rational basis review is applied substantive due process is met so long as the law is rationally related to a legitimate government purpose But if it is an area where strict scrutiny is used such as for protecting fundamental rights then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose

The police power granted to local government units must always be exercised with utmost observance of the rights of the people to due process and equal protection of the law Such power cannot be exercised whimsically arbitrarily or despotically as its exercise is subject to a qualification limitation or restriction demanded by the respect and regard due to the prescription of the fundamental law particularly those forming part of the Bill of Rights Individual rights it bears emphasis may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare Due process requires the intrinsic validity of the law in interfering with the rights of the person to his life liberty and property

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

1 it must appear that the interests of the public generally as distinguished from those of a particular class require an interference with private rights

2 the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment for even under the guise of protecting the public interest personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded

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

The closing down and transfer of businesses or their conversion into businesses allowed under the Ordinance have no reasonable relation to the accomplishment of its purposes Otherwise stated the prohibition of the enumerated establishments will not per se protect and promote the social and moral welfare of the community it will not in itself eradicate the alluded social ills of prostitution adultery fornication nor will it arrest the spread of sexual disease in Manila

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

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 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

In Section 3 thereof owners andor operators of the enumerated establishments are given three (3) months from the date of approval of the Ordinance within which to wind up business operations or to transfer to any place outside the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area Further it states in Section 4 that in cases of subsequent violations of the provisions of the Ordinance the premises of the erring establishment shall be closed and padlocked permanently It is readily apparent that the means employed by the Ordinance for the achievement of its purposes the governmental interference itself infringes on the constitutional guarantees of a persons fundamental right to liberty and property

6

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 faculties with which he has been endowed by his Creator subject only to such restraint as are necessary for the common welfare In accordance with this case the rights of the 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

Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in intimate sexual conduct within the motels premises mdash be it stressed that their consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons The liberty protected by the Constitution allows persons the right to make this choice Their right to liberty under the due process 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

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

Liberty in the constitutional sense not only means freedom from unlawful government restraint it must include privacy as well if it is to be a repository of freedom The right to be let alone is the beginning of all freedom mdash it is the most comprehensive of rights and the right most valued by civilized men

The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect

In addition the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial use of its property

The Constitution expressly provides in Article III Section 9 that private property shall not be taken for public use without just compensation The provision is the most important protection of property rights in the Constitution This is a restriction on the general power of the government to take property The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others In part too it is about loss spreading If the government takes away a persons property to benefit society then society should pay The principal purpose of the guarantee is to bar the Government from forcing some people alone to bear public burdens which in all fairness and justice should be borne by the public as a whole

There are two different types of taking that can be identified A possessory taking occurs when the government confiscates or physically occupies property A regulatory taking occurs when the governments regulation leaves no reasonable economically viable use of the property

In the landmark case of Pennsylvania Coal v Mahon it was held that a taking also could be found if government regulation of the use of property went too far When regulation reaches a certain magnitude in most if not in all cases there must be an exercise of eminent domain and compensation to support the act While property may be regulated to a certain extent if regulation goes too far it will be recognized as a taking

What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use A regulation that permanently denies all economically beneficial or productive use of land is from the owners point of view equivalent to a taking unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable

A regulation which denies all economically beneficial or productive use of land will require compensation under the takings clause Where a regulation places limitations on land that fall short of eliminating all economically beneficial use a taking

nonetheless may have occurred depending on a complex of factors including the regulations economic effect on the landowner the extent to which the regulation interferes with reasonable investment-backed expectations and the character of government action

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

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 mdash to transfer to any place outside of the Ermita-Malate area or to convert into allowed businesses mdash 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 penalty of closure likewise constitutes unlawful taking that should be compensated by the government The burden on the owner to convert or transfer his business otherwise it will be closed permanently after a subsequent violation should be borne by the public as this end benefits them as a whole

Petitioners cannot take refuge in classifying the measure as a zoning ordinance A zoning ordinance although a valid exercise of police power which limits a wholesome property to a use which can not reasonably be made of it constitutes the taking of such property without just compensation Private property which is not noxious nor intended for noxious purposes may not by zoning be destroyed without compensation Such principle finds no support in the principles of justice as we know them The police powers of local government units which have always received broad and liberal interpretation cannot be stretched to cover this particular taking

Distinction should be made between destruction from necessity and eminent domain It needs restating that the property taken in the exercise of police power is destroyed because it is noxious or intended for a noxious purpose while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore wholesome If it be of public benefit that a 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

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

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

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

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

7

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

[In contrast to two relevant cases In FWPBS INC v Dallas 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 US Supreme Court held that the reasonableness of the legislative judgment combined with a study which the city considered was adequate to support the citys determination that motels permitting room rentals for fewer than ten (10) hours should be included within the licensing scheme As regards the second point the Court held that limiting motel room rentals to ten (10) hours will have no discernible effect on personal bonds as those bonds that are formed from the use of a motel room for fewer than ten (10) hours are not those that have played a critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals and beliefs

The ordinance challenged in the above-cited case merely regulated the targeted businesses It imposed reasonable restrictions hence its validity was upheld

The case of Ermita Malate Hotel and Motel Operators Association Inc v City Mayor of Manila 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 ]

The Ordinance violates Equal Protection Clause

Equal protection requires that all persons or things similarly situated should be treated alike both as to rights conferred and responsibilities imposed Similar subjects in other words should not be treated differently so as to give undue favor to some and unjustly discriminate against others The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances The equal protection of the laws is a pledge of the protection of equal laws It limits governmental discrimination The equal protection clause extends to artificial persons but only insofar as their property is concerned

Legislative bodies are allowed to classify the subjects of legislation If the classification is reasonable the law may operate only on some and not all of the people without violating the equal protection clause The classification must as an indispensable requisite not be arbitrary To be 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

In the Courts view there are no substantial distinctions between motels inns pension houses hotels lodging houses or other similar establishments By definition all are commercial establishments providing lodging and usually meals and other services for the public No reason exists for prohibiting motels and inns but not pension houses hotels lodging houses or other similar establishments The classification in the instant case is invalid as similar subjects are not similarly treated both as to rights conferred and obligations imposed It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance

The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area A noxious establishment does not become any less noxious if located outside the area

The standard where women are used as tools for entertainment is also discriminatory as prostitution mdash one of the hinted ills the Ordinance aims to banish mdash is not a profession exclusive to women Both men and women have an equal propensity to engage in prostitution

CThe 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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

(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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 shallxxx xxx xxx

(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

8

It is well to recall the rulings of the Court in Kwong Sing v City of Manila 105 that

The word regulate as used in subsection (l) section 2444 of the Administrative Code means and includes the power to control to govern and to restrain but regulate should not be construed as synonymous with suppress or prohibit Consequently under the power to regulate laundries the municipal authorities could make proper police regulations as to the mode in which the employment or business shall be exercised

The several powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code it is pertinent to emphasize are separated by semi-colons () the use of which indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to justify being put together in a single enumeration or paragraph These powers therefore should not be confused commingled or consolidated as to create a conglomerated and unified power of regulation suppression and prohibition

The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to regulation among which are beerhouses hotels motels inns pension houses lodging houses and other similar establishments (Section 458 (a) 4 (iv)) public dancing schools public dance halls sauna baths massage parlors and other places for entertainment or amusement (Section 458 (a) 4 (vii)) This enumeration therefore cannot be included as among other events or activities for amusement or entertainment particularly those which tend to disturb the community or annoy the inhabitants or certain forms of amusement or entertainment which the City Council may suspend suppress or prohibit

The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof By reason of its limited powers and the nature thereof said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council Moreover it is a general rule in statutory construction that the express mention of one person thing or consequence is tantamount to an express exclusion of all others Expressio unius est exclusio alterium

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 People v Esguerra 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

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

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

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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

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 Councils powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers It is evident that these establishments may only be regulated in their establishment operation and maintenance

Ordinance also runs counter to the provisions of PD 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

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

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 thereforeultra vires null and void 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 mdash not even under the guise of police power DENIED

4 Pollution Adjudication Board vs Court of Appeals GR No 93981 March 11 1991

FACTS Petitioner Pollution Adjudication Board seeks the court to review the Decision and Resolution promulgated on 7 February 1990 and 10 May 1990 respectively by the Court of Appeals in CA-GR No SP 18821 entitled Solar Textile Finishing Corporation v Pollution Adjudication Board In that Decision and Resolution the Court of Appeals reversed an order of the Regional Trial Court Quezon City Branch 77 in Civil Case No Q-89-2287 dismissing private respondent Solar Textile Finishing Corporations (Solar) petition for certiorari and remanded the case to the trial court for further proceedings

5

The Ordinance must satisfy two requirements it must pass muster under the test of constitutionality and the test of consistency with the prevailing laws That ordinances should be constitutional uphold the principle of the supremacy of the Constitution The requirement that the enactment must not violate existing law gives stress to the precept that local government units are able to legislate only by virtue of their derivative legislative power a delegation of legislative power from the national legislature The delegate cannot be superior to the principal or exercise powers higher than those of the latter

The national legislature is still the principal of the local government units which cannot defy its will or modify or violate it

The Ordinance was passed by the City Council in the exercise of its police power an enactment of the City Council acting as agent of Congress Local government units as agencies of the State are endowed with police power in order to effectively accomplish and carry out the declared objects of their creation This delegated police power is found in Section 16 of the Code known as the general welfare clause viz

SECTION 16General Welfare mdash 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 provincecitymunicipality and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the provincecitymunicipality provided under the Code

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

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 (Sec 1) There is no controlling and precise definition of due process It furnishes though a standard to which governmental action should conform in order that deprivation of life liberty or property in each appropriate case be valid This standard is aptly described as a responsiveness to the supremacy of reason obedience to the dictates of justice and as such it is a limitation upon the exercise of the police power

The purpose of the guaranty is to prevent governmental encroachment against the life liberty and property of individuals to secure the individual from the arbitrary exercise of the powers of the government unrestrained by the established principles of private rights and distributive justice to protect property from confiscation by legislative enactments from seizure forfeiture and destruction without a trial and conviction by the ordinary mode of judicial procedure and to secure to all persons equal and impartial justice and the benefit of the general law

This clause has been interpreted as imposing two separate limits on government usually called procedural due process and substantive due process

i Procedural due process as the phrase implies refers to the procedures that the government must follow before it deprives a person of life liberty or property Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action

ii Substantive due process asks whether the government has an adequate reason for taking away a persons life liberty or property In other words substantive due process looks to whether there is a sufficient justification for the governments action Case law in the United States (US) tells us that whether there is such a justification depends very much on the

level of scrutiny used For example if a law is in an area where only rational basis review is applied substantive due process is met so long as the law is rationally related to a legitimate government purpose But if it is an area where strict scrutiny is used such as for protecting fundamental rights then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose

The police power granted to local government units must always be exercised with utmost observance of the rights of the people to due process and equal protection of the law Such power cannot be exercised whimsically arbitrarily or despotically as its exercise is subject to a qualification limitation or restriction demanded by the respect and regard due to the prescription of the fundamental law particularly those forming part of the Bill of Rights Individual rights it bears emphasis may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare Due process requires the intrinsic validity of the law in interfering with the rights of the person to his life liberty and property

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

1 it must appear that the interests of the public generally as distinguished from those of a particular class require an interference with private rights

2 the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment for even under the guise of protecting the public interest personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded

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

The closing down and transfer of businesses or their conversion into businesses allowed under the Ordinance have no reasonable relation to the accomplishment of its purposes Otherwise stated the prohibition of the enumerated establishments will not per se protect and promote the social and moral welfare of the community it will not in itself eradicate the alluded social ills of prostitution adultery fornication nor will it arrest the spread of sexual disease in Manila

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

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 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

In Section 3 thereof owners andor operators of the enumerated establishments are given three (3) months from the date of approval of the Ordinance within which to wind up business operations or to transfer to any place outside the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area Further it states in Section 4 that in cases of subsequent violations of the provisions of the Ordinance the premises of the erring establishment shall be closed and padlocked permanently It is readily apparent that the means employed by the Ordinance for the achievement of its purposes the governmental interference itself infringes on the constitutional guarantees of a persons fundamental right to liberty and property

6

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 faculties with which he has been endowed by his Creator subject only to such restraint as are necessary for the common welfare In accordance with this case the rights of the 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

Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in intimate sexual conduct within the motels premises mdash be it stressed that their consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons The liberty protected by the Constitution allows persons the right to make this choice Their right to liberty under the due process 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

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

Liberty in the constitutional sense not only means freedom from unlawful government restraint it must include privacy as well if it is to be a repository of freedom The right to be let alone is the beginning of all freedom mdash it is the most comprehensive of rights and the right most valued by civilized men

The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect

In addition the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial use of its property

The Constitution expressly provides in Article III Section 9 that private property shall not be taken for public use without just compensation The provision is the most important protection of property rights in the Constitution This is a restriction on the general power of the government to take property The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others In part too it is about loss spreading If the government takes away a persons property to benefit society then society should pay The principal purpose of the guarantee is to bar the Government from forcing some people alone to bear public burdens which in all fairness and justice should be borne by the public as a whole

There are two different types of taking that can be identified A possessory taking occurs when the government confiscates or physically occupies property A regulatory taking occurs when the governments regulation leaves no reasonable economically viable use of the property

In the landmark case of Pennsylvania Coal v Mahon it was held that a taking also could be found if government regulation of the use of property went too far When regulation reaches a certain magnitude in most if not in all cases there must be an exercise of eminent domain and compensation to support the act While property may be regulated to a certain extent if regulation goes too far it will be recognized as a taking

What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use A regulation that permanently denies all economically beneficial or productive use of land is from the owners point of view equivalent to a taking unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable

A regulation which denies all economically beneficial or productive use of land will require compensation under the takings clause Where a regulation places limitations on land that fall short of eliminating all economically beneficial use a taking

nonetheless may have occurred depending on a complex of factors including the regulations economic effect on the landowner the extent to which the regulation interferes with reasonable investment-backed expectations and the character of government action

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

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 mdash to transfer to any place outside of the Ermita-Malate area or to convert into allowed businesses mdash 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 penalty of closure likewise constitutes unlawful taking that should be compensated by the government The burden on the owner to convert or transfer his business otherwise it will be closed permanently after a subsequent violation should be borne by the public as this end benefits them as a whole

Petitioners cannot take refuge in classifying the measure as a zoning ordinance A zoning ordinance although a valid exercise of police power which limits a wholesome property to a use which can not reasonably be made of it constitutes the taking of such property without just compensation Private property which is not noxious nor intended for noxious purposes may not by zoning be destroyed without compensation Such principle finds no support in the principles of justice as we know them The police powers of local government units which have always received broad and liberal interpretation cannot be stretched to cover this particular taking

Distinction should be made between destruction from necessity and eminent domain It needs restating that the property taken in the exercise of police power is destroyed because it is noxious or intended for a noxious purpose while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore wholesome If it be of public benefit that a 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

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

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

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

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

7

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

[In contrast to two relevant cases In FWPBS INC v Dallas 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 US Supreme Court held that the reasonableness of the legislative judgment combined with a study which the city considered was adequate to support the citys determination that motels permitting room rentals for fewer than ten (10) hours should be included within the licensing scheme As regards the second point the Court held that limiting motel room rentals to ten (10) hours will have no discernible effect on personal bonds as those bonds that are formed from the use of a motel room for fewer than ten (10) hours are not those that have played a critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals and beliefs

The ordinance challenged in the above-cited case merely regulated the targeted businesses It imposed reasonable restrictions hence its validity was upheld

The case of Ermita Malate Hotel and Motel Operators Association Inc v City Mayor of Manila 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 ]

The Ordinance violates Equal Protection Clause

Equal protection requires that all persons or things similarly situated should be treated alike both as to rights conferred and responsibilities imposed Similar subjects in other words should not be treated differently so as to give undue favor to some and unjustly discriminate against others The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances The equal protection of the laws is a pledge of the protection of equal laws It limits governmental discrimination The equal protection clause extends to artificial persons but only insofar as their property is concerned

Legislative bodies are allowed to classify the subjects of legislation If the classification is reasonable the law may operate only on some and not all of the people without violating the equal protection clause The classification must as an indispensable requisite not be arbitrary To be 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

In the Courts view there are no substantial distinctions between motels inns pension houses hotels lodging houses or other similar establishments By definition all are commercial establishments providing lodging and usually meals and other services for the public No reason exists for prohibiting motels and inns but not pension houses hotels lodging houses or other similar establishments The classification in the instant case is invalid as similar subjects are not similarly treated both as to rights conferred and obligations imposed It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance

The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area A noxious establishment does not become any less noxious if located outside the area

The standard where women are used as tools for entertainment is also discriminatory as prostitution mdash one of the hinted ills the Ordinance aims to banish mdash is not a profession exclusive to women Both men and women have an equal propensity to engage in prostitution

CThe 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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

(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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 shallxxx xxx xxx

(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

8

It is well to recall the rulings of the Court in Kwong Sing v City of Manila 105 that

The word regulate as used in subsection (l) section 2444 of the Administrative Code means and includes the power to control to govern and to restrain but regulate should not be construed as synonymous with suppress or prohibit Consequently under the power to regulate laundries the municipal authorities could make proper police regulations as to the mode in which the employment or business shall be exercised

The several powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code it is pertinent to emphasize are separated by semi-colons () the use of which indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to justify being put together in a single enumeration or paragraph These powers therefore should not be confused commingled or consolidated as to create a conglomerated and unified power of regulation suppression and prohibition

The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to regulation among which are beerhouses hotels motels inns pension houses lodging houses and other similar establishments (Section 458 (a) 4 (iv)) public dancing schools public dance halls sauna baths massage parlors and other places for entertainment or amusement (Section 458 (a) 4 (vii)) This enumeration therefore cannot be included as among other events or activities for amusement or entertainment particularly those which tend to disturb the community or annoy the inhabitants or certain forms of amusement or entertainment which the City Council may suspend suppress or prohibit

The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof By reason of its limited powers and the nature thereof said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council Moreover it is a general rule in statutory construction that the express mention of one person thing or consequence is tantamount to an express exclusion of all others Expressio unius est exclusio alterium

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 People v Esguerra 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

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

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

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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

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 Councils powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers It is evident that these establishments may only be regulated in their establishment operation and maintenance

Ordinance also runs counter to the provisions of PD 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

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

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 thereforeultra vires null and void 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 mdash not even under the guise of police power DENIED

4 Pollution Adjudication Board vs Court of Appeals GR No 93981 March 11 1991

FACTS Petitioner Pollution Adjudication Board seeks the court to review the Decision and Resolution promulgated on 7 February 1990 and 10 May 1990 respectively by the Court of Appeals in CA-GR No SP 18821 entitled Solar Textile Finishing Corporation v Pollution Adjudication Board In that Decision and Resolution the Court of Appeals reversed an order of the Regional Trial Court Quezon City Branch 77 in Civil Case No Q-89-2287 dismissing private respondent Solar Textile Finishing Corporations (Solar) petition for certiorari and remanded the case to the trial court for further proceedings

6

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 faculties with which he has been endowed by his Creator subject only to such restraint as are necessary for the common welfare In accordance with this case the rights of the 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

Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in intimate sexual conduct within the motels premises mdash be it stressed that their consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons The liberty protected by the Constitution allows persons the right to make this choice Their right to liberty under the due process 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

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

Liberty in the constitutional sense not only means freedom from unlawful government restraint it must include privacy as well if it is to be a repository of freedom The right to be let alone is the beginning of all freedom mdash it is the most comprehensive of rights and the right most valued by civilized men

The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect

In addition the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial use of its property

The Constitution expressly provides in Article III Section 9 that private property shall not be taken for public use without just compensation The provision is the most important protection of property rights in the Constitution This is a restriction on the general power of the government to take property The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others In part too it is about loss spreading If the government takes away a persons property to benefit society then society should pay The principal purpose of the guarantee is to bar the Government from forcing some people alone to bear public burdens which in all fairness and justice should be borne by the public as a whole

There are two different types of taking that can be identified A possessory taking occurs when the government confiscates or physically occupies property A regulatory taking occurs when the governments regulation leaves no reasonable economically viable use of the property

In the landmark case of Pennsylvania Coal v Mahon it was held that a taking also could be found if government regulation of the use of property went too far When regulation reaches a certain magnitude in most if not in all cases there must be an exercise of eminent domain and compensation to support the act While property may be regulated to a certain extent if regulation goes too far it will be recognized as a taking

What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use A regulation that permanently denies all economically beneficial or productive use of land is from the owners point of view equivalent to a taking unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable

A regulation which denies all economically beneficial or productive use of land will require compensation under the takings clause Where a regulation places limitations on land that fall short of eliminating all economically beneficial use a taking

nonetheless may have occurred depending on a complex of factors including the regulations economic effect on the landowner the extent to which the regulation interferes with reasonable investment-backed expectations and the character of government action

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

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 mdash to transfer to any place outside of the Ermita-Malate area or to convert into allowed businesses mdash 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 penalty of closure likewise constitutes unlawful taking that should be compensated by the government The burden on the owner to convert or transfer his business otherwise it will be closed permanently after a subsequent violation should be borne by the public as this end benefits them as a whole

Petitioners cannot take refuge in classifying the measure as a zoning ordinance A zoning ordinance although a valid exercise of police power which limits a wholesome property to a use which can not reasonably be made of it constitutes the taking of such property without just compensation Private property which is not noxious nor intended for noxious purposes may not by zoning be destroyed without compensation Such principle finds no support in the principles of justice as we know them The police powers of local government units which have always received broad and liberal interpretation cannot be stretched to cover this particular taking

Distinction should be made between destruction from necessity and eminent domain It needs restating that the property taken in the exercise of police power is destroyed because it is noxious or intended for a noxious purpose while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore wholesome If it be of public benefit that a 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

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

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

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

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

7

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

[In contrast to two relevant cases In FWPBS INC v Dallas 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 US Supreme Court held that the reasonableness of the legislative judgment combined with a study which the city considered was adequate to support the citys determination that motels permitting room rentals for fewer than ten (10) hours should be included within the licensing scheme As regards the second point the Court held that limiting motel room rentals to ten (10) hours will have no discernible effect on personal bonds as those bonds that are formed from the use of a motel room for fewer than ten (10) hours are not those that have played a critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals and beliefs

The ordinance challenged in the above-cited case merely regulated the targeted businesses It imposed reasonable restrictions hence its validity was upheld

The case of Ermita Malate Hotel and Motel Operators Association Inc v City Mayor of Manila 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 ]

The Ordinance violates Equal Protection Clause

Equal protection requires that all persons or things similarly situated should be treated alike both as to rights conferred and responsibilities imposed Similar subjects in other words should not be treated differently so as to give undue favor to some and unjustly discriminate against others The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances The equal protection of the laws is a pledge of the protection of equal laws It limits governmental discrimination The equal protection clause extends to artificial persons but only insofar as their property is concerned

Legislative bodies are allowed to classify the subjects of legislation If the classification is reasonable the law may operate only on some and not all of the people without violating the equal protection clause The classification must as an indispensable requisite not be arbitrary To be 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

In the Courts view there are no substantial distinctions between motels inns pension houses hotels lodging houses or other similar establishments By definition all are commercial establishments providing lodging and usually meals and other services for the public No reason exists for prohibiting motels and inns but not pension houses hotels lodging houses or other similar establishments The classification in the instant case is invalid as similar subjects are not similarly treated both as to rights conferred and obligations imposed It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance

The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area A noxious establishment does not become any less noxious if located outside the area

The standard where women are used as tools for entertainment is also discriminatory as prostitution mdash one of the hinted ills the Ordinance aims to banish mdash is not a profession exclusive to women Both men and women have an equal propensity to engage in prostitution

CThe 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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

(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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 shallxxx xxx xxx

(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

8

It is well to recall the rulings of the Court in Kwong Sing v City of Manila 105 that

The word regulate as used in subsection (l) section 2444 of the Administrative Code means and includes the power to control to govern and to restrain but regulate should not be construed as synonymous with suppress or prohibit Consequently under the power to regulate laundries the municipal authorities could make proper police regulations as to the mode in which the employment or business shall be exercised

The several powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code it is pertinent to emphasize are separated by semi-colons () the use of which indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to justify being put together in a single enumeration or paragraph These powers therefore should not be confused commingled or consolidated as to create a conglomerated and unified power of regulation suppression and prohibition

The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to regulation among which are beerhouses hotels motels inns pension houses lodging houses and other similar establishments (Section 458 (a) 4 (iv)) public dancing schools public dance halls sauna baths massage parlors and other places for entertainment or amusement (Section 458 (a) 4 (vii)) This enumeration therefore cannot be included as among other events or activities for amusement or entertainment particularly those which tend to disturb the community or annoy the inhabitants or certain forms of amusement or entertainment which the City Council may suspend suppress or prohibit

The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof By reason of its limited powers and the nature thereof said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council Moreover it is a general rule in statutory construction that the express mention of one person thing or consequence is tantamount to an express exclusion of all others Expressio unius est exclusio alterium

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 People v Esguerra 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

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

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

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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

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 Councils powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers It is evident that these establishments may only be regulated in their establishment operation and maintenance

Ordinance also runs counter to the provisions of PD 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

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

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 thereforeultra vires null and void 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 mdash not even under the guise of police power DENIED

4 Pollution Adjudication Board vs Court of Appeals GR No 93981 March 11 1991

FACTS Petitioner Pollution Adjudication Board seeks the court to review the Decision and Resolution promulgated on 7 February 1990 and 10 May 1990 respectively by the Court of Appeals in CA-GR No SP 18821 entitled Solar Textile Finishing Corporation v Pollution Adjudication Board In that Decision and Resolution the Court of Appeals reversed an order of the Regional Trial Court Quezon City Branch 77 in Civil Case No Q-89-2287 dismissing private respondent Solar Textile Finishing Corporations (Solar) petition for certiorari and remanded the case to the trial court for further proceedings

7

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

[In contrast to two relevant cases In FWPBS INC v Dallas 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 US Supreme Court held that the reasonableness of the legislative judgment combined with a study which the city considered was adequate to support the citys determination that motels permitting room rentals for fewer than ten (10) hours should be included within the licensing scheme As regards the second point the Court held that limiting motel room rentals to ten (10) hours will have no discernible effect on personal bonds as those bonds that are formed from the use of a motel room for fewer than ten (10) hours are not those that have played a critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals and beliefs

The ordinance challenged in the above-cited case merely regulated the targeted businesses It imposed reasonable restrictions hence its validity was upheld

The case of Ermita Malate Hotel and Motel Operators Association Inc v City Mayor of Manila 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 ]

The Ordinance violates Equal Protection Clause

Equal protection requires that all persons or things similarly situated should be treated alike both as to rights conferred and responsibilities imposed Similar subjects in other words should not be treated differently so as to give undue favor to some and unjustly discriminate against others The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances The equal protection of the laws is a pledge of the protection of equal laws It limits governmental discrimination The equal protection clause extends to artificial persons but only insofar as their property is concerned

Legislative bodies are allowed to classify the subjects of legislation If the classification is reasonable the law may operate only on some and not all of the people without violating the equal protection clause The classification must as an indispensable requisite not be arbitrary To be 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

In the Courts view there are no substantial distinctions between motels inns pension houses hotels lodging houses or other similar establishments By definition all are commercial establishments providing lodging and usually meals and other services for the public No reason exists for prohibiting motels and inns but not pension houses hotels lodging houses or other similar establishments The classification in the instant case is invalid as similar subjects are not similarly treated both as to rights conferred and obligations imposed It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance

The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area A noxious establishment does not become any less noxious if located outside the area

The standard where women are used as tools for entertainment is also discriminatory as prostitution mdash one of the hinted ills the Ordinance aims to banish mdash is not a profession exclusive to women Both men and women have an equal propensity to engage in prostitution

CThe 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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

(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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 shallxxx xxx xxx

(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

8

It is well to recall the rulings of the Court in Kwong Sing v City of Manila 105 that

The word regulate as used in subsection (l) section 2444 of the Administrative Code means and includes the power to control to govern and to restrain but regulate should not be construed as synonymous with suppress or prohibit Consequently under the power to regulate laundries the municipal authorities could make proper police regulations as to the mode in which the employment or business shall be exercised

The several powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code it is pertinent to emphasize are separated by semi-colons () the use of which indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to justify being put together in a single enumeration or paragraph These powers therefore should not be confused commingled or consolidated as to create a conglomerated and unified power of regulation suppression and prohibition

The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to regulation among which are beerhouses hotels motels inns pension houses lodging houses and other similar establishments (Section 458 (a) 4 (iv)) public dancing schools public dance halls sauna baths massage parlors and other places for entertainment or amusement (Section 458 (a) 4 (vii)) This enumeration therefore cannot be included as among other events or activities for amusement or entertainment particularly those which tend to disturb the community or annoy the inhabitants or certain forms of amusement or entertainment which the City Council may suspend suppress or prohibit

The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof By reason of its limited powers and the nature thereof said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council Moreover it is a general rule in statutory construction that the express mention of one person thing or consequence is tantamount to an express exclusion of all others Expressio unius est exclusio alterium

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 People v Esguerra 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

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

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

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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

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 Councils powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers It is evident that these establishments may only be regulated in their establishment operation and maintenance

Ordinance also runs counter to the provisions of PD 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

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

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 thereforeultra vires null and void 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 mdash not even under the guise of police power DENIED

4 Pollution Adjudication Board vs Court of Appeals GR No 93981 March 11 1991

FACTS Petitioner Pollution Adjudication Board seeks the court to review the Decision and Resolution promulgated on 7 February 1990 and 10 May 1990 respectively by the Court of Appeals in CA-GR No SP 18821 entitled Solar Textile Finishing Corporation v Pollution Adjudication Board In that Decision and Resolution the Court of Appeals reversed an order of the Regional Trial Court Quezon City Branch 77 in Civil Case No Q-89-2287 dismissing private respondent Solar Textile Finishing Corporations (Solar) petition for certiorari and remanded the case to the trial court for further proceedings

8

It is well to recall the rulings of the Court in Kwong Sing v City of Manila 105 that

The word regulate as used in subsection (l) section 2444 of the Administrative Code means and includes the power to control to govern and to restrain but regulate should not be construed as synonymous with suppress or prohibit Consequently under the power to regulate laundries the municipal authorities could make proper police regulations as to the mode in which the employment or business shall be exercised

The several powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code it is pertinent to emphasize are separated by semi-colons () the use of which indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to justify being put together in a single enumeration or paragraph These powers therefore should not be confused commingled or consolidated as to create a conglomerated and unified power of regulation suppression and prohibition

The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to regulation among which are beerhouses hotels motels inns pension houses lodging houses and other similar establishments (Section 458 (a) 4 (iv)) public dancing schools public dance halls sauna baths massage parlors and other places for entertainment or amusement (Section 458 (a) 4 (vii)) This enumeration therefore cannot be included as among other events or activities for amusement or entertainment particularly those which tend to disturb the community or annoy the inhabitants or certain forms of amusement or entertainment which the City Council may suspend suppress or prohibit

The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof By reason of its limited powers and the nature thereof said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council Moreover it is a general rule in statutory construction that the express mention of one person thing or consequence is tantamount to an express exclusion of all others Expressio unius est exclusio alterium

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 People v Esguerra 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

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

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

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 458Powers Duties Functions and Compensation mdash (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 xxx xxx xxx

(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 xxx xxx xxx

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 Councils powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers It is evident that these establishments may only be regulated in their establishment operation and maintenance

Ordinance also runs counter to the provisions of PD 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

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

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 thereforeultra vires null and void 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 mdash not even under the guise of police power DENIED

4 Pollution Adjudication Board vs Court of Appeals GR No 93981 March 11 1991

FACTS Petitioner Pollution Adjudication Board seeks the court to review the Decision and Resolution promulgated on 7 February 1990 and 10 May 1990 respectively by the Court of Appeals in CA-GR No SP 18821 entitled Solar Textile Finishing Corporation v Pollution Adjudication Board In that Decision and Resolution the Court of Appeals reversed an order of the Regional Trial Court Quezon City Branch 77 in Civil Case No Q-89-2287 dismissing private respondent Solar Textile Finishing Corporations (Solar) petition for certiorari and remanded the case to the trial court for further proceedings

9

22 September 1988--- petitioner Board issued an ex parte Order directing Solar immediately to cease and desist from utilizing its wastewater pollution source installations which were discharging untreated wastewater directly into a canal leading to the adjacent Tullahan-Tinejeros River

the above Order was based on findings of several inspections of Solars plant

a inspections conducted on 5 November 1986 and 12 November 1986 by the National Pollution Control Commission (NPCC) the predecessor of the Board and

b the inspection conducted on 6 September 1988 by the Department of Environment and Natural Resources (DENR)

The findings of these two (2) inspections were that Solars wastewater treatment plant was non-operational and that its plant generated about 30 gallons per minute of wastewater 80 of which was being directly discharged into a drainage canal leading to the Tullahan-Tinejeros River The remaining 20 of the wastewater was being channeled through Solars non-operational wastewater treatment plant Chemical analysis of samples of Solars effluents showed the presence of pollutants on a level in excess of what was permissible under PD No 984 and its Implementing Regulations

A copy of the above Order was received by Solar on 26 September 1988 A Writ of Execution issued by the Board was received by Solar on 31 March 1989

21 April 1989n--- Solar went to the Regional Trial Court of Quezon City Branch 77 on petition for certiorari with preliminary injunction against the Board the petition being docketed as Civil Case No Q-89-2287

24 April 1989mdashpetitioner board in answer to Solarrsquos motion for reconsideration appeal with prayer for stay of execution allows Solar to operate temporarily to enable the Board to conduct another inspection and evaluation of Solars wastewater treatment facilities In the same Order the Board directed the Regional Executive Director of the DENR NCR to conduct the inspection and evaluation within thirty (30) days

21 July 1989--- the Regional Trial Court dismissed Solars petition upon two (2) grounds ie that appeal and not certiorari from the questioned Order of the Board as well as the Writ of Execution was the proper remedy and that the Boards subsequent Order allowing Solar to operate temporarily had rendered Solars petition moot and academic

Solar went on appeal to the Court of Appeals which in the Decision here assailed reversed the Order of dismissal of the trial court and remanded the case to that court for further proceedings This decision is without prejudice to whatever action the [Board] may take relative to the projected inspection and evaluation of appellants [Solars] water treatment facilities In addition the Court of Appeals declared the Writ of Execution null and void The Court of Appeals held that certiorari was a proper remedy since the Orders of petitioner Board may result in great and irreparable injury to Solar and that while the case might be moot and academic larger issues demanded that the question of due process be settled

Petitioner board in this petition for review argues that

1 its ex parte Order dated 22 September 1988 and the Writ of Execution were issued in accordance with law and were not violative of the requirements of due process and

2 the ex parte Order and the Writ of Execution are not the proper subjects of a petition for certiorari

Petitioner Board claims that under PD No 984 Section 7(a) it has legal authority to issue ex parte orders to suspend the operations of an establishment when there is prima facie evidence that such establishment is discharging effluents or wastewater the pollution level of which exceeds the maximum permissible standards set by the NPCC (now the Board)

Petitioner Board contends that the reports before it concerning the effluent discharges of Solar into the Tullahan-Tinejeros River provided prima facie evidence of violation by Solar of Section 5 of the 1982 Effluent Code

Solar on the other hand contends that under the Boards own rules and regulations an ex parte order may issue only if the effluents discharged pose an immediate threat to life public health safety or welfare or to animal and plant life In the instant case according to Solar the inspection reports before the Board made no finding that Solars wastewater discharged posed such a threat

ISSUE WON the Court of Appeals erred in reversing the trial court on the ground that Solar had been denied due process by the Board

HELD YES Section 7(a) of PD No 984 authorized petitioner Board to issue ex parte cease and desist orders under the following circumstances

PD 984 Section 7 paragraph (a) provides

(a) Public Hearing Provided That whenever the Commission finds prima facie evidence that the discharged sewage or wastes are of immediate threat to life public health safety or welfare or to animal or plant life or exceeds the allowable standards set by the Commission the Commissioner may issue an ex-parte order directing the discontinuance of the same or the temporary suspension or cessation of operation of the establishment or person generating such sewage or wastes without the necessity of a prior public hearing The said ex-parte order shall be immediately executory and shall remain in force until said establishment or person prevents or abates the said pollution within the allowable standards or modified or nullified by a competent court (Emphasis supplied)

We note that under the above-quoted portion of Section 7(a) of PD No 984 an ex parte cease and desist order may be issued by the Board (a) whenever the wastes discharged by an establishment pose an immediate threat to life public health safety or welfare or to animal or plant life or (b) whenever such discharges or wastes exceed the allowable standards set by the [NPCC] On the one hand it is not essential that the Board prove that an immediate threat to life public health safety or welfare or to animal or plant life exists before an ex parte cease and desist order may be issued It is enough if the Board finds that the wastes discharged do exceed the allowable standards set by the [NPCC] In respect of discharges of wastes as to which allowable standards have been set by the Commission the Board may issue an ex parte cease and desist order when there is prima facieevidence of an establishment exceeding such allowable standards Where however the effluents or discharges have not yet been the subject matter of allowable standards set by the Commission then the Board may act on an ex parte basis when it finds at least prima facie proof that the wastewater or material involved presents an immediate threat to life public health safety or welfare or to animal or plant life Since the applicable standards set by the Commission existing at any given time may well not cover every possible or imaginable kind of effluent or waste discharge the general standard of an immediate threat to life public health safety or welfare or to animal and plant life remains necessary

Section 5 of the Effluent Regulations of 1982 4 sets out the maximum permissible levels of physical and chemical substances which effluents from domestic wastewater treatment plants and industrial plants must not exceed when discharged into bodies of water classified as Class A B C D SB and SC in accordance with the 1978 NPCC Rules and Regulations The waters of Tullahan-Tinejeros River are classified as inland waters Class D underSection 68 of the 1978 NPCC Rules and Regulations which in part provides that

Section 68 Water Usage and Classification mdash The quality of Philippine waters shall be maintained in a safe and satisfactory condition according to their best usages For this purpose all water shall be classified according to the following beneficial usages (a) Fresh Surface Water

Classification Best usage xxx xxx xxx

Class D For agriculture irrigation live stock watering and industrial cooling and processing xxx xxx xxx

10

The reports on the inspections carried on Solars wastewater treatment facilities on 5 and 12 November 1986 and 6 September 1988 set forth the following identical finding

a For legal action in [view of] violation of Section 103 of the implementing rules and regulations of PD No 984 and Section 5 of the Effluent Regulations of 1982

The November 1986 inspections report concluded that ldquohellip Based on the above findings it is clear that the new owner continuously violates the directive of the Commission by undertaking dyeing operation without completing first and operating its existing WTP The analysis of results on water samples taken showed that the untreated wastewater from the firm pollutes our water resources In this connection it is recommended that appropriate legal action be instituted immediately against the firm

The September 1988 inspection reports conclusions were xxx 3) A sample from the bypass wastewater was collected for laboratory analyses Result of the analyses show that the bypass wastewater is polluted in terms of color units BOD and suspended solids among others (Please see attached laboratory result)

it is clear to this Court that there was at least prima facie evidence before the Board that the effluents emanating from Solars plant exceeded the maximum allowable levels of physical and chemical substances set by the NPCC and that accordingly there was adequate basis supporting the ex parte cease and desist order issued by the Board In fact the previous owner of the plant facility mdash Fine Touch Finishing Corporation mdash had been issued a Notice of Violation on 20 December 1985 directing it to cease and refrain from carrying out dyeing operations until the water treatment plant was completed and operational Solar the new owner informed the NPCC of the acquisition of the plant on March 1986 Solar was summoned by the NPCC to a hearing on 13 October 1986 based on the results of the sampling test conducted by the NPCC on 8 August 1986 Petitioner Board refrained from issuing an ex parte cease and desist order until after the November 1986 and September 1988 re-inspections were conducted and the violation of applicable standards was confirmed

In other words petitioner Board appears to have been remarkably forbearing in its efforts to enforce the applicable standards vis-a-vis Solar Solar on the other hand seemed very casual about its continued discharge of untreated pollutive effluents into the Tullahan-Tinejeros River presumably loath to spend the money necessary to put its Wastewater Treatment Plant (WTP) in an operating condition

Ex parte cease and desist orders are permitted by law and regulations in situations like that here presented precisely because stopping the continuous discharge of pollutive and untreated effluents into the rivers and other inland waters of the Philippines cannot be made to wait until protracted litigation over the ultimate correctness or propriety of such orders has run its full course including multiple and sequential appeals such as those which Solar has taken which of course may take several years The relevant pollution control statute and implementing regulations were enacted and promulgated in the exercise of that persuasive sovereign power to protect the safety health and general welfare and comfort of the public as well as the protection of plant and animal life commonly designated as the police power It is a constitutional common place that the ordinary requirements of procedural due process yield to the necessities of protecting vital public interests like those here involved through the exercise of police power The Boards ex parte Order and Writ of Execution would of course have compelled Solar temporarily to stop its plant operations a state of affairs Solar could in any case have avoided by simply absorbing the bother and burden of putting its WTP on an operational basis Industrial establishments are not constitutionally entitled to reduce their capitals costs and operating expenses and to increase their profits by imposing upon the public threats and risks to its safety health general welfare and comfort by disregarding the requirements of anti-pollution statutes and their implementing regulations C

It should perhaps be made clear the Court is not here saying that the correctness of the ex parte Order and Writ of Execution may not be contested by Solar in a hearing before the Board itself Where the establishment affected by an ex parte cease and desist order contests the correctness of the prima facie findings of the Board the Board must hold a public hearing where such establishment would have an opportunity to controvert the basis of such ex parte order A subsequent public hearing is precisely what Solar should have sought instead of going to court to seek nullification of the Boards Order and Writ of Execution and instead of appealing to the Court of Appeals It will be recalled that the Board in fact gave Solar authority temporarily to continue operations until still another inspection of its wastewater treatment facilities and then another analysis of effluent samples could be taken and evaluated

Order and Writ of Execution were entirely within the lawful authority of petitioner Board the trial court did not err when it dismissed Solars petition for certiorari It follows that the proper remedy was an appeal from the trial court to the Court of Appeals as Solar did in fact appeal

the Petition for Review is given DUE COURSE and the Decision of the Court of Appeals dated 7 February 1990 and its Resolution dated 10 May 1990 in AC-GR No SP 18821 are hereby SET ASIDE The Order of petitioner Board dated 22 September 1988 and the Writ of Execution as well as the decision of the trial court dated 21 July 1989 are hereby REINSTATED without prejudice to the right of Solar to contest the correctness of the basis of the Boards Order and Writ of Execution at a public hearing before the Board

5 Metropolitan Manila Development Authority vs Dante O Garin GR No 130230 April 15 2009

FACTS At issue in this case is the validity of Section 5(f) of Republic Act No 7924 creating the Metropolitan Manila Development Authority (MMDA) which authorizes it to confiscate and suspend or revoke drivers licenses in the enforcement of traffic laws and regulations

05 August 1995-- Dante O Garin a lawyer who was issued a traffic violation receipt (TVR) and his drivers license confiscated for parking illegally along Gandara Street Binondo ManilaThe following statements were printed on the TVR

YOU ARE HEREBY DIRECTED TO REPORT TO THE MMDA TRAFFIC OPERATIONS CENTER PORT AREA MANILA AFTER 48 HOURS FROM DATE OF APPREHENSION FOR DISPOSITIONAPPROPRIATE ACTION THEREON CRIMINAL CASE SHALL BE FILED FOR FAILURE TO REDEEM LICENSE AFTER 30 DAYS

VALID AS TEMPORARY DRIVERS LICENSE FOR SEVEN DAYS FROM DATE OF APPREHENSION

Shortly before the expiration of the TVRs validity Garin addressed a letter to then MMDA Chairman Prospero Oreta requesting the return of his drivers license and expressing his preference for his case to be filed in court

12 September 1995--- Receiving no immediate reply Garin filed the original complaint with application for preliminary injunction in Branch 260 of the Regional Trial Court (RTC) of Parantildeaque on

Here he contended that in the absence of any implementing rules and regulations Sec 5(f) of Rep Act No 7924 grants the MMDA unbridled discretion to deprive erring motorists of their licenses pre-empting a judicial determination of the validity of the deprivation thereby violating the due process clause of the Constitution Absent any implementing rules from the Metro Manila Council the TVR and the confiscation of his license have no legal basis Further the provision violates the constitutional prohibition against undue delegation of legislative authority allowing as it does the MMDA to fix and impose unspecified mdash and therefore unlimited mdash fines and other penalties on erring motorists

MMDA represented by the SolGen pointed out that the powers granted to it by Sec 5(f) of Rep Act No 7924 are limited to the fixing collection and imposition of fines and penalties for traffic violations which are legislative and executive in nature the judiciary retains the right to determine the validity of the penalty imposed It further argued that the doctrine of separation of powers does not preclude admixture of the three powers of government in administrative agencies

MMDA directed the courts attention to MMDA Memorandum Circular No TT-95-001 dated 15 April 1995 as implementing rules for Sec 5(f) of Rep Act No 7924 Respondent Garin however questioned the validity of MMDA Memorandum Circular No TT-95-001 as he claims that it was passed by the Metro Manila Council in the absence of a quorum

26 September 1995-- Judge Helen Bautista-Ricafort issued a temporary restraining order on extending the validity of the TVR as a temporary drivers license for twenty more days

11

23 October 1995-- MMDA was directed to return the respondents drivers license

14 August 1997--- the trial court rendered the assailed decision in favor of the herein respondent and held that

a There was indeed no quorum in that First Regular Meeting of the MMDA Council held on March 23 1995 hence MMDA Memorandum Circular No TT-95-001 authorizing confiscation of drivers licenses upon issuance of a TVR is void ab initio

b The summary confiscation of a drivers license without first giving the driver an opportunity to be heard depriving him of a property right (drivers license) without DUE PROCESS not filling (sic) in Court the complaint of supposed traffic infraction cannot be justified by any legislation (and is) hence unconstitutional

MMDA is directed to return to plaintiff his drivers license and likewise ordered to desist from confiscating drivers license without first giving the driver the opportunity to be heard in an appropriate proceeding

MMDA files this present petition contending that a license to operate a motor vehicle is neither a contract nor a property right but is a privilege subject to reasonable regulation under the police power in the interest of the public safety and welfare That revocation or suspension of this privilege does not constitute a taking without due process as long as the licensee is given the right to appeal the revocation

That a licensee may indeed appeal the taking and the judiciary retains the power to determine the validity of the confiscation suspension or revocation of the license the petitioner points out that under the terms of the confiscation the licensee has three options (1) To voluntarily pay the imposable fine (2) To protest the apprehension by filing a protest with the MMDA Adjudication Committee or(3) To request the referral of the TVR to the Public Prosecutors Office

The MMDA argues that Memorandum Circular No TT-95-001 was validly passed in the presence of a quorum that the lower courts finding that it had not was based on a misapprehension of factsrdquo Moreover it asserts that though the circular is the basis for the issuance of TVRs the basis for the summary confiscation of licenses is Sec 5(f) of Rep Act No 7924 itself and that such power is self-executory and does not require the issuance of any implementing regulation or circular

ISSUE WON the MMDArsquos power to confiscate and suspend or revoke drivers licenses is an unauthorized exercise of police power

HELD YES 12 August 2004-- MMDA Chairman Bayani Fernando implemented Memorandum Circular No 04 Series of 2004 outlining the procedures for the use of the Metropolitan Traffic Ticket (MTT) scheme Under the circular erring motorists are issued an MTT which can be paid at any Metrobank branch Traffic enforcers may no longer confiscate drivers licenses as a matter of course in cases of traffic violations All motorists with unredeemed TVRs were given seven days from the date of implementation of the new system to pay their fines and redeem their license or vehicle plates

The case has been rendered moot and academic by the implementation of Memorandum Circular No 04 Series of 2004 MMDA however is not precluded from re-implementing Memorandum Circular No TT-95-001 or any other scheme for that matter that would entail confiscating drivers licenses For the proper implementation therefore of the petitioners future programs this Court deems it appropriate to make the following observations

1 A license to operate a motor vehicle is a privilege that the state may withhold in the exercise of its police power

It is the legislature in the exercise of police power which has the power and responsibility to regulate how and by whom motor vehicles may be operated on the state highways in the interest of the public safety and welfare subject to the procedural due process requirements

in Commonwealth v Funk Automobiles are vehicles of great speed and power The use of them constitutes an element of danger to persons and property upon the highways Carefully operated an automobile is still a dangerous instrumentality but when operated by careless or incompetent persons it becomes an engine of destruction The Legislature in the exercise of the police power of the commonwealth not only may but must prescribe how and by whom motor vehicles shall be operated on the highways One of the primary purposes of a system of general regulation of the subject matter as here by the Vehicle Code is to insure the competency of the operator of motor vehicles Such a general law is manifestly directed to the promotion of public safety and is well within the police power

2 The MMDA is not vested with police power

Rep Act No 7924 does not grant the MMDA with police power let alone legislative power and that all its functions are administrative in nature (Metro Manila Development Authority v Bel-Air Village Association Inc)

Tracing the legislative history of Rep Act No 7924 creating the MMDA we concluded that the MMDA is not a local government unit or a public corporation endowed with legislative power

Police power as an inherent attribute of sovereignty is 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 Having been 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 (LGUs) Once delegated the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body

Metropolitan or Metro Manila is a body composed of several local government units (def political subdivision of a nation or state which is constituted by law and has substantial control of local affairs Eg provinces cities municipalities barangays) With the passage of Rep Act No 7924 in 1995 Metropolitan Manila was declared as a special development and administrative region and the administration of metro-wide basic services affecting the region placed under a development authority referred to as the MMDA

There is no syllable in R A No 7924 that grants the MMDA police power let alone legislative power Even the Metro Manila Council has not been delegated any legislative power Unlike the legislative bodies of the local government units there is no provision in R A No 7924 that empowers the MMDA or its Council to enact ordinances approve resolutions and appropriate funds for the general welfare of the inhabitants of Metro Manila The MMDA is as termed in the charter itself a development authority It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies peoples organizations non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area All its functions are administrative in nature

3 Sec 5(f) grants the MMDA with the duty to enforce existing traffic rules and regulations

Sec 5(f) states that the petitioner shall install and administer a single ticketing system fix impose and collect fines and penalties for all kinds of violations of traffic rules and regulations whether moving or nonmoving in nature and confiscate and suspend or revoke drivers licenses in the enforcement of such traffic laws and regulations the provisions of Rep Act No 4136 and PD No 1605 to the contrary notwithstanding and that (f)or this purpose the Authority shall enforce all traffic laws and regulations in Metro Manila through its traffic operation center and may deputize members of the PNP traffic enforcers of local government units duly licensed security guards or members of non-governmental organizations to whom may be delegated certain authority subject to such conditions and requirements as the Authority may impose

Thus where there is a traffic law or regulation validly enacted by the legislature or those agencies to whom legislative powers have been delegated (the City of Manila in this case) the MMDA is duty-bound mdash to confiscate and suspend or revoke drivers licenses in the exercise of its mandate of transport and traffic management as well as the administration and implementation of all traffic enforcement operations traffic engineering services and traffic education programs

12

The MMDA was intended to coordinate services with metro-wide impact that transcend local political boundaries or would entail huge expenditures if provided by the individual LGUs especially with regard to transport and traffic management but these laudable intentions are limited by the MMDAs enabling law which we can but interpret and petitioner must be reminded that its efforts in this respect must be authorized by a valid law or ordinance or regulation arising from a legitimate source DISMISSED

6 Ortigas amp Co Ltd vs Court of Appeals GR No 126102 December 4 2000

FACTS petition seeks to reverse the decision of the Court of Appeals dated March 25 1996 in CA-GR SP No 39193 which nullified the writ of preliminary injunction issued by the Regional Trial Court of Pasig City Branch 261 in Civil Case No 64931 It also assails the resolution of the appellate court dated August 13 1996 denying petitioners motion for reconsideration

August 25 1976-- Ortigas sold to the Hermosos a parcel of land (Lot 1 Block 21 Psd-66759 with an area of 1508 square meters and covered by Transfer Certificate of Title No 0737) in Greenhills Subdivision The contract of sale provided that the lot will be used for single-family residential building only and this was annotated at the back of the title of the lot

1981-- the Metropolitan Commission enacted MMC (now MMDA) Ordinance No 81-01 reclassifying as a commercial zone the stretch of Ortigas Avenue from Roosevelt Street to Madison Street

June 8 1984-- private respondent Mathay III leased the lot from Hermoso and constructed a commercial building for Greenhills Autohaus Inc a car sales company

January 18 1995mdashpetitioner Ortigas filed a complaint against Hermoso with the RTC Pasig Branch 261 Docketed as Civil Case No 64931 seeking thethe demolition of the said commercial structure for having violated the terms and conditions of the Deed of Sale Complainant prayed for the issuance of a temporary restraining order and a writ of preliminary injunction to prohibit petitioner from constructing the commercial building andor engaging in commercial activity on the lot The complaint was later amended to implead Ismael G Mathay III and JP Hermoso Realty Corp which has a ten percent (10) interest in the lot

June 16 1995--- court issued the writ of preliminary injunction

June 29 1995-- Mathay III moved to set aside the injunctive order but the trial court denied the motion He filed with the CA a special civil action for certiorari docketed as CA-GR SP No 39193 ascribing to the trial court grave abuse of discretion in issuing the writ of preliminary injunction He claimed that MMC Ordinance No 81-01 classified the area where the lot was located as commercial area and said ordinance must be read into the August 25 1976 Deed of Sale as a concrete exercise of police power

March 25 1996mdashCA granted the petition and the assailed orders are nullified

Petitioner Otigas in this present petition asserts that Mathay III lacks legal capacity to question the validity of conditions of the deed of sale and he is barred by estoppel or waiver to raise the same question like his principals the owners

Petitioner contends that the appellate court erred in limiting its decision to the cited zoning ordinance It avers that a contractual right is not automatically discarded once a claim is made that it conflicts with police power Petitioner submits that the restrictive clauses in the questioned contract is not in conflict with the zoning ordinance For one according to petitioner the MMC Ordinance No 81-01 did not prohibit the construction of residential buildings Petitioner argues that even with the zoning ordinance the seller and buyer of the re-classified lot can voluntarily agree to an exclusive residential use thereof Hence petitioner concludes that the Court of Appeals erred in holding that the condition imposing exclusive residential use was effectively nullified by the zoning ordinance

In its turn private respondent argues that the appellate court correctly ruled that the trial court had acted with grave abuse of discretion in refusing to subject the contract to the MMC Ordinance No 81-01 He avers that the appellate court properly held the police power superior to the non-impairment of contract clause in the Constitution He concludes that the appellate court did not err in dissolving the writ of preliminary injunction issued by the trial court in excess of its jurisdiction

ISSUE whether the Court of Appeals erred in holding that the trial court committed grave abuse of discretion when it refused to apply MMC Ordinance No 81-01 to Civil Case No 64931

HELD NO The trial court observed that the contract of sale was entered into in August 1976 while the zoning ordinance was enacted only in March 1981 The trial court reasoned that since private respondent had failed to show that MMC Ordinance No 81-01 had retroactive effect said ordinance should be given prospective application Only laws existing at the time of the execution of a contract are applicable thereto and not later statutes unless the latter are specifically intended to have retroactive effect A later law which enlarges abridges or in any manner changes the intent of the parties to the contract necessarily impairs the contract itself and cannot be given retroactive effect without violating the constitutional prohibition against impairment of contracts

But a law enacted in the exercise of police power to regulate or govern certain activities or transactions could be given retroactive effect and may reasonably impair vested rights or contracts Police power legislation is applicable not only to future contracts but equally to those already in existence Non-impairment of contracts or vested rights clauses will have to yield to the superior and legitimate exercise by the State of police power to promote the health morals peace education good order safety and general welfare of the people Moreover statutes in exercise of valid police power must be read into every contract

The trial courts reliance on the Co vs IAC is misplaced In Co the disputed area was agricultural and Ordinance No 81-01 did not specifically provide that it shall have retroactive effect so as to discontinue all rights previously acquired over lands located within the zone which are neither residential nor light industrial in nature and stated with respect to agricultural areas covered that the zoning ordinance should be given prospective operation only The area in this case involves not agricultural but urban residential land Ordinance No 81-01 retroactively affected the operation of the zoning ordinance in Greenhills by reclassifying certain locations therein as commercial

The contractual stipulations annotated on the Torrens Title on which Ortigas relies must yield to the ordinance When that stretch of Ortigas Avenue from Roosevelt Street to Madison Street was reclassified as a commercial zone by the Metropolitan Manila Commission in March 1981 the restrictions in the contract of sale between Ortigas and Hermoso limiting all construction on the disputed lot to single-family residential buildings were deemed extinguished by the retroactive operation of the zoning ordinance and could no longer be enforced While our legal system upholds the sanctity of contract so that a contract is deemed law between the contracting parties nonetheless stipulations in a contract cannot contravene law morals good customs public order or public policy Otherwise such stipulations would be deemed null and void Respondent court correctly found that the trial court committed in this case a grave abuse of discretion amounting to want of or excess of jurisdiction in refusing to treat Ordinance No 81-01 as applicable to Civil Case No 64931 In resolving matters in litigation judges are not only duty-bound to ascertain the facts and the applicable laws they are also bound by their oath of office to apply the applicable law

A real party in interest is defined as the party who stands to be benefited or injured by the judgment or the party entitled to the avails of the suit Interest within the meaning of the rule means material interest an interest in issue and to be affected by the decree as distinguished from mere interest in the question involved or a mere incidental interest By real interest is meant a present substantial interest as distinguished from a mere expectancy or a future contingent subordinate or consequential interest

13

private respondent in this case is clearly a real party in interest It is not disputed that he is in possession of the lot pursuant to a valid lease He is a possessor in the concept of a holder of the thing under Article 525 of the Civil Code He was impleaded as a defendant in the amended complaint in Civil Case No 64931 Further what petitioner seeks to enjoin is the building by respondent of a commercial structure on the lot Clearly it is private respondents acts which are in issue and his interest in said issue cannot be a mere incidental interest In its amended complaint petitioner prayed for among others judgment ordering the demolition of all improvements illegally built on the lot in question These show that it is petitioner Mathay III doing business as Greenhills Autohaus Inc and not only the Hermosos who will be adversely affected by the courts decree DENIED

7 Philippine Press Institute vs COMELEC GR No 119694 May 22 1995

FACTS Petition for Certiorari and Prohibition with prayer for the issuance of a Temporary restraining order Philippine Press Institute Inc (PPI) is before this Court assailing the constitutional validity of Resolution No 2772 issued by respondent Commission on Elections (Comelec) and its corresponding Comelec directive dated 22 March 1995 through a Petition for Certiorari and Prohibition Petitioner PPI is a non-stock non-profit organization of newspaper and magazine publishers

On 2 March 1995 Comelec promulgated Resolution No 2772 which reads in part xxx xxx xxx

Sec 2 Comelec Space mdash The Commission shall procure free print space of not less than one half (12) page in at least one newspaper of general circulation in every province or city for use as Comelec Space from March 6 1995 in the case of candidates for senators and from March 21 1995 until May 12 1995 In the absence of said newspaper Comelec Space shall be obtained from any magazine or periodical of said province or city

Sec 3 Uses of Comelec Space mdash Comelec Space shall be allocated by the Commission free of charge among all candidates within the area in which the newspaper magazine or periodical is circulated to enable the candidates to make known their qualifications their stand on public issues and their platforms and programs of government

Comelec Space shall also be used by the Commission for dissemination of vital election information

Sec 4 Allocation of Comelec Space mdash (a) Comelec Space shall be available to all candidates during the periods stated in Section 2 hereof Its allocation shall be equal and impartial among all candidates for the same office All candidates concerned shall be furnished a copy of the allocation of Comelec Space for their information guidance and compliance

(b) Any candidate desiring to avail himself of Comelec Space from newspapers or publications based in the Metropolitan Manila Area shall submit an application therefor in writing to the Committee on Mass Media of the Commission Any candidate desiring to avail himself of Comelec Space in newspapers or publications based in the provinces shall submit his application therefor in writing to the Provincial Election Supervisor concerned Applications for availment of Comelec Space may be filed at any time from the date of effectivity of this Resolution

(c) The Committee on Mass Media and the Provincial Election Supervisors shall allocate available Comelec Space among the candidates concerned by lottery of which said candidates shall be notified in advance in writing to be present personally or by representative to witness the lottery at the date time and place specified in the notice Any party objecting to the result of the lottery may appeal to the Commission

(d) The candidates concerned shall be notified by the Committee on Mass Media or the Provincial Election Supervisor as the case may be sufficiently in advance and in writing of the date of issue and the newspaper or publication allocated to him and the time within which he must submit the written material for publication in the Comelec Spacexxx xxx xxx

Sec 8 Undue Reference to CandidatesPolitical Parties in Newspapers mdash No newspaper or publication shall allow to be printed or published in the news opinion features or other sections of the newspaper or publication accounts or comments which manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or including therein said candidate or political party However unless the facts and circumstances clearly indicate otherwise the Commission will respect the determination by the publisher andor editors of the newspapers or publication that the accounts or views published are significant newsworthy and of public interest (Emphasis supplied)

22 March 1995-- Comelec sent directives to thePhilippine Star the Malaya and the Philippine Times Journal all members of PPI These letters read as follows

This is to advise you that pursuant to Resolution No 2772 of the Commission on Elections you are directed to provide free print space of not less than one half (frac12) page for use as Comelec Space or similar to the print support which you have extended during the May 11 1992 synchronized elections which was 2 full pages for each political party fielding senatorial candidates from March 6 1995 to May 6 1995 to make known to their qualifications their stand on public issues and their platforms and programs of government

We shall be informing the political parties and candidates to submit directly to you their pictures biographical data stand on key public issues and platforms of government either as raw data or in the form of positives or camera-ready materials

Please be reminded that the political partiescandidates may be accommodated in your publications any day upon receipt of their materials until May 6 1995 which is the day for campaigning We trust you to extend your full support and cooperation in this regard

PPI asks to declare Comelec Resolution No 2772 unconstitutional and void on the ground that it violates the prohibition imposed by the Constitution upon the government and any of its agencies against the taking of private property for public use without just compensation Petitioner also contends that the 22 March 1995 letter directives of Comelec requiring publishers to give free Comelec Space and at the same time process raw data to make it camera-ready constitute impositions of involuntary servitude contrary to the provisions of Section 18 (2) Article III of the 1987 Constitution Finally PPI argues that Section 8 of Comelec Resolution No 2772 is violative of the constitutionally guaranteed freedom of speech of the press and of expression

20 April 1995-- this Court issued a Temporary Restraining Order enjoining Comelec from enforcing and implementing Section 2 of Resolution No 2772 as well as the Comelec directives addressed to various print media enterprises all dated 22 March 1995 The Court also required the respondent to file a Comment on the Petition

The Office of the SolGen filed its Comment on behalf of respondent Comelec alleging that Comelec Resolution No 2772 does not impose upon the publishers any obligation to provide free print space in the newspapers as it does not provide any criminal or administrative sanction for non-compliance with that Resolution The questioned Resolution merely established guidelines to be followed in connection with the procurement of Comelec space the procedure for and mode of allocation of such space to candidates and the conditions or requirements for the candidates utilization of the Comelec space procured Even if the questioned Resolution and its implementing letter directives are viewed as mandatory the same would nevertheless be valid as an exercise of the police power of the State Section 8 of Resolution No 2772 is a permissible exercise of the power of supervisor or regulation of the Comelec over the communication and information operations of print media enterprises during the election period to safeguard and ensure a fair impartial and credible election

28 April 1995-- Oral arguments Comelec thr ChairmanBernardo Pardo stated that Resolution No 2772 particularly Section 2 thereof and the 22 March 1995 letters dispatched to various members of petitioner PPI were not intended to compel those members to supply Comelec with free print space They were merely designed to solicit from the publishers the same free print space which many publishers had voluntarily given to Comelec during the election period relating to the 11 May 1992 elections the Comelec would that very afternoon meet and adopt an appropriate amending or clarifying resolution a certified true copy of which would forthwith be filed with the Court

14

On 5 May 1995-- the Court received from the SolGen a manifestation which attached a copy of Comelec resolution No 2772-A dated 4 May 1995 The operative portion of this Resolution follows with clarifications on Sections 2 and 8 of Res No 2772 as follows

1 Section 2 of Res No 2772 shall not be construed to mean as requiring publishers of the different mass media print publications to provide print space under pain of prosecution whether administrative civil or criminal there being no sanction or penalty for violation of said Section provided for either in said Resolution or in Section 90 of Batas Pambansa Blg 881 otherwise known as the Omnibus Election Code on the grant of Comelec Space

2 Section 8 of Res No 2772 shall not be construed to mean as constituting prior restraint on the part of the publishers with respect to the printing or publication of materials in the news opinion features or other sections of their respective publications or other accounts or comments it being clear from the last sentence of said Section 8 that the Commission shall unless the facts and circumstances clearly indicate otherwise respect the determination by the publishers andor editors of the newspapers or publications that the accounts or views published are significant newsworthy and of public interest

ISSUE

HELD Section 2 of Resolution No 2772 is not a model of clarity in expression Section 1 of Resolution No 2772-A did not try to redraft Section 2 accordingly Section 2 of resolution No 2772 persists in its original form Thus we must point out that as presently worded and in particular as interpreted and applied by the Comelec itself in its 22 March 1995 letter-directives to newspaper publishers Section 2 of Resolution No 2772 is clearly susceptible of the reading that petitioner PPI has given it A written communication officially directing a print media company tosupply free print space dispatched by government (here a constitutional) agency and signed by member of the Commission presumably legally authorized to do so is bound to produce a coercive effect upon the company so addressed That the agency may not be legally authorized to impose or cause the imposition of criminal or other sanctions for disregard of such direction only aggravates the constitutional difficulties inhering in the present situation

To compel print media companies to donate Comelec space of the dimensions specified in Section 2 of Resolution No 2772 (not less than one-half Page) amounts to taking of private personal property for public use or purposes Section 2 failed to specify the intended frequency of such compulsory donation only once during the period from 6 March 1995 (or 21 March 1995) until 12 May 1995 or everyday or once a week or has often as Comelec may direct during the same period the extent of the taking or deprivation is not insubstantial this is not a case of a de minimis temporary limitation or restraint upon the use of private property The monetary value of the compulsory donation measured by the advertising rates ordinarily charged by newspaper publishers whether in cities or in non-urban areas may be very substantial indeed

The taking of print space here sought to be effected may first be appraised under the rubric of expropriation of private personal property for public use The threshold requisites for a lawful taking of private property for public use need to be examined here one is the necessity for the taking another is the legal authority to effect the taking The element of necessity for the taking has not been shown by respondent Comelec It has not been suggested that the members of PPI are unwilling to sell print space at their normal rates to Comelec for election purposes Indeed the unwillingness or reluctance of Comelec to buy print space lies at the heart of the problem Similarly it has not been suggested let alone demonstrated that Comelec has been granted the power of imminent domain either by the Constitution or by the legislative authority A reasonable relationship between that power and the enforcement and administration of election laws by Comelec must be shown it is not casually to be assumed

Under Section 3 of Resolution No 2772 the free Comelec space sought by the respondent Commission would be used not only for informing the public about the identities qualifications and programs of government of candidates for elective office but also for dissemination of vital election information (including presumably circulars regulations notices directives etc issued by Comelec)

The taking of private property for public use is of course authorized by the Constitution but not without payment of just compensation (Article III Section 9) Section 2 of Resolution No 2772 does not however provide a constitutional basis

for compelling publishers against their will in the kind of factual context here present to provide free print space for Comelec purposes Section 2 does not constitute a valid exercise of the power of eminent domain

There was no effort (and apparently no inclination on the part of Comelec) to show that the police power mdash essentially a power of legislation mdash has been constitutionally delegated to respondent Commission And while private property may indeed be validly taken in the legitimate exercise of the police power of the state there was no attempt to show compliance in the instant case with the requisites of a lawful taking under the police power

Section 2 of Resolution No 2772 is a blunt and heavy instrument that purports without a showing of existence of a national emergency or other imperious public necessity indiscriminately and without regard to the individual business condition of particular newspapers or magazines located in different parts of the country to take private property of newspaper or magazine publishers No attempt was made to demonstrate that a real and palpable or urgent necessity for the taking of print space confronted the Comelec and that Section 2 of Resolution No 2772 was itself the only reasonable and calibrated response to such necessity available to Comelec Section 2 does not constitute a valid exercise of the police power of the State

In National Press Club v Commission on Elections-- Court sustained the constitutionality of Section 11 (b) of RA No 6646 known as the Electoral Reforms Law of 1987 which prohibits the sale or donation of print space and airtime for campaign or other political purposes except to the Comelec In doing so the Court carefully distinguished (a) paid political advertisements which are reached by the prohibition of Section 11 (b) from (b) the reporting of news commentaries and expressions of belief or opinion by reporters broadcasters editors commentators or columnists which fall outside the scope of Section 11 (b) and which are protected by the constitutional guarantees of freedom of speech and of the press Section 11 (b) as designed to cover only paid political advertisements of particular candidates It does not restrict either the reporting of or the expression of belief or opinion or comment upon the qualifications and programs and activities of any and all candidates for office

Section 2 of Resolution No 2772-A does not add substantially to the utility of Section 8 of Resolution No 2772 The distinction between paid political advertisements on the one hand and news reports commentaries and expressions of belief or opinion by reporters broadcasters editors etc on the other hand can realistically be given operative meaning only in actual cases or controversies on a case-to-case basis in terms of very specific sets of facts PPI has not claimed that it or any of its members has sustained actual or imminent injury by reason of Comelec action under Section 8 The Court considers that the precise constitutional issue here sought to be raised mdash whether or not Section 8 of Resolution No 2772 constitutes a permissible exercise of the Comelecs power under Article IX Section 4 of the Constitution to supervise or regulate the enjoyment or utilization of all franchise or permits for the operation of mdash media of communication or information mdash [for the purpose of ensuring] equal opportunity time and space and the right of reply including reasonable equal rates therefor for public-information campaigns and forums among candidates in connection with the objective of holding free orderly honest peaceful and credible elections mdash is not ripe for judicial review for lack of an actual case or controversy involving as the very lis mota thereof the constitutionality of Section 8 In fine

1 Section 2 of Resolution No 2772 in its present form and as interpreted by Comelec in its 22 March 1995 letter directives purports to require print media enterprises to donate free print space to Comelec As such Section 2 suffers from fatal constitutional vice and must be set aside and nullified

2 To the extent it pertains to Section 8 of Resolution No 2772 the Petition for Certiorari and Prohibition must be dismissed for lack of an actual justiciable case or controversy PETITION GRANTED RES AND DIRECTIVES SET ASIDE TRO MADE PERMANENT

8 PRC vs Arlene de Guzman GR No 144681 June 21 2004

FACTS Petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the Decision dated May 16 2000 of the Court of Appeals in CA-GR SP No 37283 which affirmed the judgment dated December 19 1994 of RTC Manila Branch 52 in Civil Case No 93-66530 allowing respondents to take their physicians oath and to register as duly licensed physicians Equally challenged is the Resolution promulgated on August 25 2000 of the Court of Appeals denying petitioners Motion for Reconsideration

15

February 1993-- respondents who are graduates of Fatima College of Medicine Valenzuela City Metro Manila passed the Physician Licensure Examination Petitioner Professional Regulation Commission (PRC) then released their names as successful examinees But the Board then observed that the grades of the 79 successful examinees from Fatima in the 2 most difficult subjects in the medical licensure exam Bio-Chem (11 scored 100 11 got 99) and OB-Gyne (10 got 100 21 scored 99) were unusually and exceptionally high Many of those who passed from Fatima got marks of 95 or better in both subjects and no one got a mark lower than 90 The unusually high ratings were true only for Fatima College examinees

June 7 1993-- the Board issued Resolution No 19 withholding the registration as physicians of all the examinees from Fatima PRC asked the NBI to investigate whether any anomaly or irregularity marred the February 1993 Physician Licensure Examination

June 10 1993-- requested Fr Bienvenido F Nebres SJ an expert mathematician and authority in statistics who conducted a statistical analysis of the results in Bio-Chem and Ob-Gyne of the said examination submitted his report He reported that a comparison of the scores in Bio-Chem and Ob-Gyne of the Fatima College examinees with those of examinees from De La Salle University and Perpetual Help College of Medicine showed that the scores of Fatima College examinees were not only incredibly high but unusually clustered close to each other He concluded that there must be some unusual reason creating the clustering of scores in the two subjects It must be a cause strong enough to eliminate the normal variations that one should expect from the examinees [of Fatima College] in terms of talent effort energy etc NBI also found that the questionable passing rate of Fatima examinees in the [1993] Physician Examination leads to the conclusion that the Fatima examinees gained early access to the test questions

July 5 1993-- respondents Arlene V De Guzman et al filed a special civil action for mandamus with prayer for preliminary mandatory injunction docketed as Civil Case No 93-66530 with the Regional Trial Court (RTC) of Manila Branch 52 Their petition was adopted by the other respondents as intervenors

July 21 1993-- the Board issued Resolution No 26 charging respondents with immorality dishonest conduct fraud and deceit in connection with the Bio-Chem and Ob-Gyne examinations It recommended that the test results of the Fatima examinees be nullified The case was docketed as Adm Case No 1687 by the PRC

July 28 1993-- the RTC issued an Order in Civil Case No 93-66530 granting the preliminary mandatory injunction sought by the respondents It ordered the petitioners to administer the physicians oath to Arlene V De Guzman et al and enter their names in the rolls of the PRC The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the mandatory injunctive writ docketed as CA-GR SP No 31701

October 21 1993-- CA decided CA-GR SP No 3170 granting the petition and nullifying the mandatory injuction issued by the lower courts against the petitioner board

November 22 1993-- during the pendency of the instant petition (GR No 112315 By respondent de Guzman et al which was denied later on May 23 1994) the pre-trial conference in Civil Case No 93-66530 was held Then the parties agreed to reduce the testimonies of their respective witnesses to sworn questions-and-answers This was without prejudice to cross-examination by the opposing counsel

December 13 1993-- petitioners counsel failed to appear at the trial in the mistaken belief that the trial was set for December 15 The trial court then ruled that petitioners waived their right to cross-examine the witnesses

January 27 1994-- counsel for petitioners filed a Manifestation and Motion stating the reasons for her non-appearance and praying that the cross-examination of the witnesses for the opposing parties be reset The trial court denied the motion for lack of notice to adverse counsel It also denied the Motion for Reconsideration that followed on the ground that adverse counsel was notified less than three (3) days prior to the hearing

April 4 1994-- lower court granted the respondents prayer for issuance of a restraining order

August 31 1994mdashCA decided the petitionerrsquos prayer (pinjunctionTRO)to annul the Orders of the trial court dated November 13 1993 February 28 1994 and April 4 1994 (restraining order) RTC-Manila is ordered to allow petitioners counsel to cross-examine the respondents witnesses to allow petitioners to present their evidence in due course of trial and thereafter to decide the case on the merits on the basis of the evidence of the parties

September 22 1994-- petitioners filed an Urgent Ex-Parte Manifestation and Motion praying for the partial reconsideration of the appellate courts decision in CA-GR SP No 34506 and for the outright dismissal of Civil Case No 93-66530 The petitioners asked for the suspension of the proceedings

September 23 1994-- the trial court granted the aforesaid motion cancelled the scheduled hearing dates and reset the proceedings to October 21 and 28 1994

October 25 1994-- CA denied the partial motion for reconsideration in CA-GR SP No 34506 Thus petitioners filed with the Supreme Court a petition for review docketed as GR No 117817 entitled Professional Regulation Commission et al v Court of Appeals et al

November 11 1994-- counsel for the petitioners failed to appear at the trial of Civil Case No 93-66530 Upon motion of the respondents herein the trial court ruled that herein petitioners waived their right to cross-examine the herein respondents Trial was reset to November 28 1994

November 25 1994-- petitioners counsel moved for the inhibition of the trial court judge for alleged partiality

November 28 1994-- the day the Motion to Inhibit was to be heard petitioners failed to appear Thus the trial court denied the Motion to Inhibit and declared Civil Case No 93-66530 deemed submitted for decision

December 19 1994-- the trial court handed down its judgment in Civil Case No 93-66530 ordering the respondents to allow the petitioners and intervenors to take the physicians oath and to register them as physicians without prejudice to any administrative disciplinary action which may be taken against any of the petitioners

petitioners filed with this Court a petition for review on certiorari docketed as GR No 118437 entitled Professional Regulation Commission v Hon David G Nitafan praying inter alia that (1) GR No 118437 be consolidated with GR No 117817 (2) the decision of the Court of Appeals dated August 31 1994 in CA-GR SP No 34506 be nullified for its failure to decree the dismissal of Civil Case No 93-66530 and in the alternative to set aside the decision of the trial court in Civil Case No 93-66530 order the trial court judge to inhibit himself and Civil Case No 93-66530 be re-raffled to another branch

December 26 1994-- the petitioners herein filed their Notice of Appeal 11 in Civil Case No 93-66530 thereby elevating the case to the Court of Appeals where it was docketed as CA-GR SP No 37283

June 7 1995-- R No 118437 was consolidated with GR No 117817

July 1 1997-- the Board cancelled the respondentsrsquo examination papers in the Physician Licensure Examinations given in February 1993 and further debars them from taking any licensure examination for a period of 1 year from the date of the promulgation of this decision They may if they so desire apply for the scheduled examinations for physicians after the lapse of the period imposed by the BOARD

July 9 1998-- GR No 117817 is DISMISSED for being moot The petition in GR No 118437 is likewise DISMISSED on the ground that there is a pending appeal before the Court of Appeals

May 16 2000-- finding no reversible error in the decision appealed from CA hereby affirmed CA-GR SP No 37283 and DISMISS the instant appeal the appellate court ratiocinated that the respondents complied with all the statutory

10

The reports on the inspections carried on Solars wastewater treatment facilities on 5 and 12 November 1986 and 6 September 1988 set forth the following identical finding

a For legal action in [view of] violation of Section 103 of the implementing rules and regulations of PD No 984 and Section 5 of the Effluent Regulations of 1982

The November 1986 inspections report concluded that ldquohellip Based on the above findings it is clear that the new owner continuously violates the directive of the Commission by undertaking dyeing operation without completing first and operating its existing WTP The analysis of results on water samples taken showed that the untreated wastewater from the firm pollutes our water resources In this connection it is recommended that appropriate legal action be instituted immediately against the firm

The September 1988 inspection reports conclusions were xxx 3) A sample from the bypass wastewater was collected for laboratory analyses Result of the analyses show that the bypass wastewater is polluted in terms of color units BOD and suspended solids among others (Please see attached laboratory result)

it is clear to this Court that there was at least prima facie evidence before the Board that the effluents emanating from Solars plant exceeded the maximum allowable levels of physical and chemical substances set by the NPCC and that accordingly there was adequate basis supporting the ex parte cease and desist order issued by the Board In fact the previous owner of the plant facility mdash Fine Touch Finishing Corporation mdash had been issued a Notice of Violation on 20 December 1985 directing it to cease and refrain from carrying out dyeing operations until the water treatment plant was completed and operational Solar the new owner informed the NPCC of the acquisition of the plant on March 1986 Solar was summoned by the NPCC to a hearing on 13 October 1986 based on the results of the sampling test conducted by the NPCC on 8 August 1986 Petitioner Board refrained from issuing an ex parte cease and desist order until after the November 1986 and September 1988 re-inspections were conducted and the violation of applicable standards was confirmed

In other words petitioner Board appears to have been remarkably forbearing in its efforts to enforce the applicable standards vis-a-vis Solar Solar on the other hand seemed very casual about its continued discharge of untreated pollutive effluents into the Tullahan-Tinejeros River presumably loath to spend the money necessary to put its Wastewater Treatment Plant (WTP) in an operating condition

Ex parte cease and desist orders are permitted by law and regulations in situations like that here presented precisely because stopping the continuous discharge of pollutive and untreated effluents into the rivers and other inland waters of the Philippines cannot be made to wait until protracted litigation over the ultimate correctness or propriety of such orders has run its full course including multiple and sequential appeals such as those which Solar has taken which of course may take several years The relevant pollution control statute and implementing regulations were enacted and promulgated in the exercise of that persuasive sovereign power to protect the safety health and general welfare and comfort of the public as well as the protection of plant and animal life commonly designated as the police power It is a constitutional common place that the ordinary requirements of procedural due process yield to the necessities of protecting vital public interests like those here involved through the exercise of police power The Boards ex parte Order and Writ of Execution would of course have compelled Solar temporarily to stop its plant operations a state of affairs Solar could in any case have avoided by simply absorbing the bother and burden of putting its WTP on an operational basis Industrial establishments are not constitutionally entitled to reduce their capitals costs and operating expenses and to increase their profits by imposing upon the public threats and risks to its safety health general welfare and comfort by disregarding the requirements of anti-pollution statutes and their implementing regulations C

It should perhaps be made clear the Court is not here saying that the correctness of the ex parte Order and Writ of Execution may not be contested by Solar in a hearing before the Board itself Where the establishment affected by an ex parte cease and desist order contests the correctness of the prima facie findings of the Board the Board must hold a public hearing where such establishment would have an opportunity to controvert the basis of such ex parte order A subsequent public hearing is precisely what Solar should have sought instead of going to court to seek nullification of the Boards Order and Writ of Execution and instead of appealing to the Court of Appeals It will be recalled that the Board in fact gave Solar authority temporarily to continue operations until still another inspection of its wastewater treatment facilities and then another analysis of effluent samples could be taken and evaluated

Order and Writ of Execution were entirely within the lawful authority of petitioner Board the trial court did not err when it dismissed Solars petition for certiorari It follows that the proper remedy was an appeal from the trial court to the Court of Appeals as Solar did in fact appeal

the Petition for Review is given DUE COURSE and the Decision of the Court of Appeals dated 7 February 1990 and its Resolution dated 10 May 1990 in AC-GR No SP 18821 are hereby SET ASIDE The Order of petitioner Board dated 22 September 1988 and the Writ of Execution as well as the decision of the trial court dated 21 July 1989 are hereby REINSTATED without prejudice to the right of Solar to contest the correctness of the basis of the Boards Order and Writ of Execution at a public hearing before the Board

5 Metropolitan Manila Development Authority vs Dante O Garin GR No 130230 April 15 2009

FACTS At issue in this case is the validity of Section 5(f) of Republic Act No 7924 creating the Metropolitan Manila Development Authority (MMDA) which authorizes it to confiscate and suspend or revoke drivers licenses in the enforcement of traffic laws and regulations

05 August 1995-- Dante O Garin a lawyer who was issued a traffic violation receipt (TVR) and his drivers license confiscated for parking illegally along Gandara Street Binondo ManilaThe following statements were printed on the TVR

YOU ARE HEREBY DIRECTED TO REPORT TO THE MMDA TRAFFIC OPERATIONS CENTER PORT AREA MANILA AFTER 48 HOURS FROM DATE OF APPREHENSION FOR DISPOSITIONAPPROPRIATE ACTION THEREON CRIMINAL CASE SHALL BE FILED FOR FAILURE TO REDEEM LICENSE AFTER 30 DAYS

VALID AS TEMPORARY DRIVERS LICENSE FOR SEVEN DAYS FROM DATE OF APPREHENSION

Shortly before the expiration of the TVRs validity Garin addressed a letter to then MMDA Chairman Prospero Oreta requesting the return of his drivers license and expressing his preference for his case to be filed in court

12 September 1995--- Receiving no immediate reply Garin filed the original complaint with application for preliminary injunction in Branch 260 of the Regional Trial Court (RTC) of Parantildeaque on

Here he contended that in the absence of any implementing rules and regulations Sec 5(f) of Rep Act No 7924 grants the MMDA unbridled discretion to deprive erring motorists of their licenses pre-empting a judicial determination of the validity of the deprivation thereby violating the due process clause of the Constitution Absent any implementing rules from the Metro Manila Council the TVR and the confiscation of his license have no legal basis Further the provision violates the constitutional prohibition against undue delegation of legislative authority allowing as it does the MMDA to fix and impose unspecified mdash and therefore unlimited mdash fines and other penalties on erring motorists

MMDA represented by the SolGen pointed out that the powers granted to it by Sec 5(f) of Rep Act No 7924 are limited to the fixing collection and imposition of fines and penalties for traffic violations which are legislative and executive in nature the judiciary retains the right to determine the validity of the penalty imposed It further argued that the doctrine of separation of powers does not preclude admixture of the three powers of government in administrative agencies

MMDA directed the courts attention to MMDA Memorandum Circular No TT-95-001 dated 15 April 1995 as implementing rules for Sec 5(f) of Rep Act No 7924 Respondent Garin however questioned the validity of MMDA Memorandum Circular No TT-95-001 as he claims that it was passed by the Metro Manila Council in the absence of a quorum

26 September 1995-- Judge Helen Bautista-Ricafort issued a temporary restraining order on extending the validity of the TVR as a temporary drivers license for twenty more days

11

23 October 1995-- MMDA was directed to return the respondents drivers license

14 August 1997--- the trial court rendered the assailed decision in favor of the herein respondent and held that

a There was indeed no quorum in that First Regular Meeting of the MMDA Council held on March 23 1995 hence MMDA Memorandum Circular No TT-95-001 authorizing confiscation of drivers licenses upon issuance of a TVR is void ab initio

b The summary confiscation of a drivers license without first giving the driver an opportunity to be heard depriving him of a property right (drivers license) without DUE PROCESS not filling (sic) in Court the complaint of supposed traffic infraction cannot be justified by any legislation (and is) hence unconstitutional

MMDA is directed to return to plaintiff his drivers license and likewise ordered to desist from confiscating drivers license without first giving the driver the opportunity to be heard in an appropriate proceeding

MMDA files this present petition contending that a license to operate a motor vehicle is neither a contract nor a property right but is a privilege subject to reasonable regulation under the police power in the interest of the public safety and welfare That revocation or suspension of this privilege does not constitute a taking without due process as long as the licensee is given the right to appeal the revocation

That a licensee may indeed appeal the taking and the judiciary retains the power to determine the validity of the confiscation suspension or revocation of the license the petitioner points out that under the terms of the confiscation the licensee has three options (1) To voluntarily pay the imposable fine (2) To protest the apprehension by filing a protest with the MMDA Adjudication Committee or(3) To request the referral of the TVR to the Public Prosecutors Office

The MMDA argues that Memorandum Circular No TT-95-001 was validly passed in the presence of a quorum that the lower courts finding that it had not was based on a misapprehension of factsrdquo Moreover it asserts that though the circular is the basis for the issuance of TVRs the basis for the summary confiscation of licenses is Sec 5(f) of Rep Act No 7924 itself and that such power is self-executory and does not require the issuance of any implementing regulation or circular

ISSUE WON the MMDArsquos power to confiscate and suspend or revoke drivers licenses is an unauthorized exercise of police power

HELD YES 12 August 2004-- MMDA Chairman Bayani Fernando implemented Memorandum Circular No 04 Series of 2004 outlining the procedures for the use of the Metropolitan Traffic Ticket (MTT) scheme Under the circular erring motorists are issued an MTT which can be paid at any Metrobank branch Traffic enforcers may no longer confiscate drivers licenses as a matter of course in cases of traffic violations All motorists with unredeemed TVRs were given seven days from the date of implementation of the new system to pay their fines and redeem their license or vehicle plates

The case has been rendered moot and academic by the implementation of Memorandum Circular No 04 Series of 2004 MMDA however is not precluded from re-implementing Memorandum Circular No TT-95-001 or any other scheme for that matter that would entail confiscating drivers licenses For the proper implementation therefore of the petitioners future programs this Court deems it appropriate to make the following observations

1 A license to operate a motor vehicle is a privilege that the state may withhold in the exercise of its police power

It is the legislature in the exercise of police power which has the power and responsibility to regulate how and by whom motor vehicles may be operated on the state highways in the interest of the public safety and welfare subject to the procedural due process requirements

in Commonwealth v Funk Automobiles are vehicles of great speed and power The use of them constitutes an element of danger to persons and property upon the highways Carefully operated an automobile is still a dangerous instrumentality but when operated by careless or incompetent persons it becomes an engine of destruction The Legislature in the exercise of the police power of the commonwealth not only may but must prescribe how and by whom motor vehicles shall be operated on the highways One of the primary purposes of a system of general regulation of the subject matter as here by the Vehicle Code is to insure the competency of the operator of motor vehicles Such a general law is manifestly directed to the promotion of public safety and is well within the police power

2 The MMDA is not vested with police power

Rep Act No 7924 does not grant the MMDA with police power let alone legislative power and that all its functions are administrative in nature (Metro Manila Development Authority v Bel-Air Village Association Inc)

Tracing the legislative history of Rep Act No 7924 creating the MMDA we concluded that the MMDA is not a local government unit or a public corporation endowed with legislative power

Police power as an inherent attribute of sovereignty is 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 Having been 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 (LGUs) Once delegated the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body

Metropolitan or Metro Manila is a body composed of several local government units (def political subdivision of a nation or state which is constituted by law and has substantial control of local affairs Eg provinces cities municipalities barangays) With the passage of Rep Act No 7924 in 1995 Metropolitan Manila was declared as a special development and administrative region and the administration of metro-wide basic services affecting the region placed under a development authority referred to as the MMDA

There is no syllable in R A No 7924 that grants the MMDA police power let alone legislative power Even the Metro Manila Council has not been delegated any legislative power Unlike the legislative bodies of the local government units there is no provision in R A No 7924 that empowers the MMDA or its Council to enact ordinances approve resolutions and appropriate funds for the general welfare of the inhabitants of Metro Manila The MMDA is as termed in the charter itself a development authority It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies peoples organizations non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area All its functions are administrative in nature

3 Sec 5(f) grants the MMDA with the duty to enforce existing traffic rules and regulations

Sec 5(f) states that the petitioner shall install and administer a single ticketing system fix impose and collect fines and penalties for all kinds of violations of traffic rules and regulations whether moving or nonmoving in nature and confiscate and suspend or revoke drivers licenses in the enforcement of such traffic laws and regulations the provisions of Rep Act No 4136 and PD No 1605 to the contrary notwithstanding and that (f)or this purpose the Authority shall enforce all traffic laws and regulations in Metro Manila through its traffic operation center and may deputize members of the PNP traffic enforcers of local government units duly licensed security guards or members of non-governmental organizations to whom may be delegated certain authority subject to such conditions and requirements as the Authority may impose

Thus where there is a traffic law or regulation validly enacted by the legislature or those agencies to whom legislative powers have been delegated (the City of Manila in this case) the MMDA is duty-bound mdash to confiscate and suspend or revoke drivers licenses in the exercise of its mandate of transport and traffic management as well as the administration and implementation of all traffic enforcement operations traffic engineering services and traffic education programs

12

The MMDA was intended to coordinate services with metro-wide impact that transcend local political boundaries or would entail huge expenditures if provided by the individual LGUs especially with regard to transport and traffic management but these laudable intentions are limited by the MMDAs enabling law which we can but interpret and petitioner must be reminded that its efforts in this respect must be authorized by a valid law or ordinance or regulation arising from a legitimate source DISMISSED

6 Ortigas amp Co Ltd vs Court of Appeals GR No 126102 December 4 2000

FACTS petition seeks to reverse the decision of the Court of Appeals dated March 25 1996 in CA-GR SP No 39193 which nullified the writ of preliminary injunction issued by the Regional Trial Court of Pasig City Branch 261 in Civil Case No 64931 It also assails the resolution of the appellate court dated August 13 1996 denying petitioners motion for reconsideration

August 25 1976-- Ortigas sold to the Hermosos a parcel of land (Lot 1 Block 21 Psd-66759 with an area of 1508 square meters and covered by Transfer Certificate of Title No 0737) in Greenhills Subdivision The contract of sale provided that the lot will be used for single-family residential building only and this was annotated at the back of the title of the lot

1981-- the Metropolitan Commission enacted MMC (now MMDA) Ordinance No 81-01 reclassifying as a commercial zone the stretch of Ortigas Avenue from Roosevelt Street to Madison Street

June 8 1984-- private respondent Mathay III leased the lot from Hermoso and constructed a commercial building for Greenhills Autohaus Inc a car sales company

January 18 1995mdashpetitioner Ortigas filed a complaint against Hermoso with the RTC Pasig Branch 261 Docketed as Civil Case No 64931 seeking thethe demolition of the said commercial structure for having violated the terms and conditions of the Deed of Sale Complainant prayed for the issuance of a temporary restraining order and a writ of preliminary injunction to prohibit petitioner from constructing the commercial building andor engaging in commercial activity on the lot The complaint was later amended to implead Ismael G Mathay III and JP Hermoso Realty Corp which has a ten percent (10) interest in the lot

June 16 1995--- court issued the writ of preliminary injunction

June 29 1995-- Mathay III moved to set aside the injunctive order but the trial court denied the motion He filed with the CA a special civil action for certiorari docketed as CA-GR SP No 39193 ascribing to the trial court grave abuse of discretion in issuing the writ of preliminary injunction He claimed that MMC Ordinance No 81-01 classified the area where the lot was located as commercial area and said ordinance must be read into the August 25 1976 Deed of Sale as a concrete exercise of police power

March 25 1996mdashCA granted the petition and the assailed orders are nullified

Petitioner Otigas in this present petition asserts that Mathay III lacks legal capacity to question the validity of conditions of the deed of sale and he is barred by estoppel or waiver to raise the same question like his principals the owners

Petitioner contends that the appellate court erred in limiting its decision to the cited zoning ordinance It avers that a contractual right is not automatically discarded once a claim is made that it conflicts with police power Petitioner submits that the restrictive clauses in the questioned contract is not in conflict with the zoning ordinance For one according to petitioner the MMC Ordinance No 81-01 did not prohibit the construction of residential buildings Petitioner argues that even with the zoning ordinance the seller and buyer of the re-classified lot can voluntarily agree to an exclusive residential use thereof Hence petitioner concludes that the Court of Appeals erred in holding that the condition imposing exclusive residential use was effectively nullified by the zoning ordinance

In its turn private respondent argues that the appellate court correctly ruled that the trial court had acted with grave abuse of discretion in refusing to subject the contract to the MMC Ordinance No 81-01 He avers that the appellate court properly held the police power superior to the non-impairment of contract clause in the Constitution He concludes that the appellate court did not err in dissolving the writ of preliminary injunction issued by the trial court in excess of its jurisdiction

ISSUE whether the Court of Appeals erred in holding that the trial court committed grave abuse of discretion when it refused to apply MMC Ordinance No 81-01 to Civil Case No 64931

HELD NO The trial court observed that the contract of sale was entered into in August 1976 while the zoning ordinance was enacted only in March 1981 The trial court reasoned that since private respondent had failed to show that MMC Ordinance No 81-01 had retroactive effect said ordinance should be given prospective application Only laws existing at the time of the execution of a contract are applicable thereto and not later statutes unless the latter are specifically intended to have retroactive effect A later law which enlarges abridges or in any manner changes the intent of the parties to the contract necessarily impairs the contract itself and cannot be given retroactive effect without violating the constitutional prohibition against impairment of contracts

But a law enacted in the exercise of police power to regulate or govern certain activities or transactions could be given retroactive effect and may reasonably impair vested rights or contracts Police power legislation is applicable not only to future contracts but equally to those already in existence Non-impairment of contracts or vested rights clauses will have to yield to the superior and legitimate exercise by the State of police power to promote the health morals peace education good order safety and general welfare of the people Moreover statutes in exercise of valid police power must be read into every contract

The trial courts reliance on the Co vs IAC is misplaced In Co the disputed area was agricultural and Ordinance No 81-01 did not specifically provide that it shall have retroactive effect so as to discontinue all rights previously acquired over lands located within the zone which are neither residential nor light industrial in nature and stated with respect to agricultural areas covered that the zoning ordinance should be given prospective operation only The area in this case involves not agricultural but urban residential land Ordinance No 81-01 retroactively affected the operation of the zoning ordinance in Greenhills by reclassifying certain locations therein as commercial

The contractual stipulations annotated on the Torrens Title on which Ortigas relies must yield to the ordinance When that stretch of Ortigas Avenue from Roosevelt Street to Madison Street was reclassified as a commercial zone by the Metropolitan Manila Commission in March 1981 the restrictions in the contract of sale between Ortigas and Hermoso limiting all construction on the disputed lot to single-family residential buildings were deemed extinguished by the retroactive operation of the zoning ordinance and could no longer be enforced While our legal system upholds the sanctity of contract so that a contract is deemed law between the contracting parties nonetheless stipulations in a contract cannot contravene law morals good customs public order or public policy Otherwise such stipulations would be deemed null and void Respondent court correctly found that the trial court committed in this case a grave abuse of discretion amounting to want of or excess of jurisdiction in refusing to treat Ordinance No 81-01 as applicable to Civil Case No 64931 In resolving matters in litigation judges are not only duty-bound to ascertain the facts and the applicable laws they are also bound by their oath of office to apply the applicable law

A real party in interest is defined as the party who stands to be benefited or injured by the judgment or the party entitled to the avails of the suit Interest within the meaning of the rule means material interest an interest in issue and to be affected by the decree as distinguished from mere interest in the question involved or a mere incidental interest By real interest is meant a present substantial interest as distinguished from a mere expectancy or a future contingent subordinate or consequential interest

13

private respondent in this case is clearly a real party in interest It is not disputed that he is in possession of the lot pursuant to a valid lease He is a possessor in the concept of a holder of the thing under Article 525 of the Civil Code He was impleaded as a defendant in the amended complaint in Civil Case No 64931 Further what petitioner seeks to enjoin is the building by respondent of a commercial structure on the lot Clearly it is private respondents acts which are in issue and his interest in said issue cannot be a mere incidental interest In its amended complaint petitioner prayed for among others judgment ordering the demolition of all improvements illegally built on the lot in question These show that it is petitioner Mathay III doing business as Greenhills Autohaus Inc and not only the Hermosos who will be adversely affected by the courts decree DENIED

7 Philippine Press Institute vs COMELEC GR No 119694 May 22 1995

FACTS Petition for Certiorari and Prohibition with prayer for the issuance of a Temporary restraining order Philippine Press Institute Inc (PPI) is before this Court assailing the constitutional validity of Resolution No 2772 issued by respondent Commission on Elections (Comelec) and its corresponding Comelec directive dated 22 March 1995 through a Petition for Certiorari and Prohibition Petitioner PPI is a non-stock non-profit organization of newspaper and magazine publishers

On 2 March 1995 Comelec promulgated Resolution No 2772 which reads in part xxx xxx xxx

Sec 2 Comelec Space mdash The Commission shall procure free print space of not less than one half (12) page in at least one newspaper of general circulation in every province or city for use as Comelec Space from March 6 1995 in the case of candidates for senators and from March 21 1995 until May 12 1995 In the absence of said newspaper Comelec Space shall be obtained from any magazine or periodical of said province or city

Sec 3 Uses of Comelec Space mdash Comelec Space shall be allocated by the Commission free of charge among all candidates within the area in which the newspaper magazine or periodical is circulated to enable the candidates to make known their qualifications their stand on public issues and their platforms and programs of government

Comelec Space shall also be used by the Commission for dissemination of vital election information

Sec 4 Allocation of Comelec Space mdash (a) Comelec Space shall be available to all candidates during the periods stated in Section 2 hereof Its allocation shall be equal and impartial among all candidates for the same office All candidates concerned shall be furnished a copy of the allocation of Comelec Space for their information guidance and compliance

(b) Any candidate desiring to avail himself of Comelec Space from newspapers or publications based in the Metropolitan Manila Area shall submit an application therefor in writing to the Committee on Mass Media of the Commission Any candidate desiring to avail himself of Comelec Space in newspapers or publications based in the provinces shall submit his application therefor in writing to the Provincial Election Supervisor concerned Applications for availment of Comelec Space may be filed at any time from the date of effectivity of this Resolution

(c) The Committee on Mass Media and the Provincial Election Supervisors shall allocate available Comelec Space among the candidates concerned by lottery of which said candidates shall be notified in advance in writing to be present personally or by representative to witness the lottery at the date time and place specified in the notice Any party objecting to the result of the lottery may appeal to the Commission

(d) The candidates concerned shall be notified by the Committee on Mass Media or the Provincial Election Supervisor as the case may be sufficiently in advance and in writing of the date of issue and the newspaper or publication allocated to him and the time within which he must submit the written material for publication in the Comelec Spacexxx xxx xxx

Sec 8 Undue Reference to CandidatesPolitical Parties in Newspapers mdash No newspaper or publication shall allow to be printed or published in the news opinion features or other sections of the newspaper or publication accounts or comments which manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or including therein said candidate or political party However unless the facts and circumstances clearly indicate otherwise the Commission will respect the determination by the publisher andor editors of the newspapers or publication that the accounts or views published are significant newsworthy and of public interest (Emphasis supplied)

22 March 1995-- Comelec sent directives to thePhilippine Star the Malaya and the Philippine Times Journal all members of PPI These letters read as follows

This is to advise you that pursuant to Resolution No 2772 of the Commission on Elections you are directed to provide free print space of not less than one half (frac12) page for use as Comelec Space or similar to the print support which you have extended during the May 11 1992 synchronized elections which was 2 full pages for each political party fielding senatorial candidates from March 6 1995 to May 6 1995 to make known to their qualifications their stand on public issues and their platforms and programs of government

We shall be informing the political parties and candidates to submit directly to you their pictures biographical data stand on key public issues and platforms of government either as raw data or in the form of positives or camera-ready materials

Please be reminded that the political partiescandidates may be accommodated in your publications any day upon receipt of their materials until May 6 1995 which is the day for campaigning We trust you to extend your full support and cooperation in this regard

PPI asks to declare Comelec Resolution No 2772 unconstitutional and void on the ground that it violates the prohibition imposed by the Constitution upon the government and any of its agencies against the taking of private property for public use without just compensation Petitioner also contends that the 22 March 1995 letter directives of Comelec requiring publishers to give free Comelec Space and at the same time process raw data to make it camera-ready constitute impositions of involuntary servitude contrary to the provisions of Section 18 (2) Article III of the 1987 Constitution Finally PPI argues that Section 8 of Comelec Resolution No 2772 is violative of the constitutionally guaranteed freedom of speech of the press and of expression

20 April 1995-- this Court issued a Temporary Restraining Order enjoining Comelec from enforcing and implementing Section 2 of Resolution No 2772 as well as the Comelec directives addressed to various print media enterprises all dated 22 March 1995 The Court also required the respondent to file a Comment on the Petition

The Office of the SolGen filed its Comment on behalf of respondent Comelec alleging that Comelec Resolution No 2772 does not impose upon the publishers any obligation to provide free print space in the newspapers as it does not provide any criminal or administrative sanction for non-compliance with that Resolution The questioned Resolution merely established guidelines to be followed in connection with the procurement of Comelec space the procedure for and mode of allocation of such space to candidates and the conditions or requirements for the candidates utilization of the Comelec space procured Even if the questioned Resolution and its implementing letter directives are viewed as mandatory the same would nevertheless be valid as an exercise of the police power of the State Section 8 of Resolution No 2772 is a permissible exercise of the power of supervisor or regulation of the Comelec over the communication and information operations of print media enterprises during the election period to safeguard and ensure a fair impartial and credible election

28 April 1995-- Oral arguments Comelec thr ChairmanBernardo Pardo stated that Resolution No 2772 particularly Section 2 thereof and the 22 March 1995 letters dispatched to various members of petitioner PPI were not intended to compel those members to supply Comelec with free print space They were merely designed to solicit from the publishers the same free print space which many publishers had voluntarily given to Comelec during the election period relating to the 11 May 1992 elections the Comelec would that very afternoon meet and adopt an appropriate amending or clarifying resolution a certified true copy of which would forthwith be filed with the Court

14

On 5 May 1995-- the Court received from the SolGen a manifestation which attached a copy of Comelec resolution No 2772-A dated 4 May 1995 The operative portion of this Resolution follows with clarifications on Sections 2 and 8 of Res No 2772 as follows

1 Section 2 of Res No 2772 shall not be construed to mean as requiring publishers of the different mass media print publications to provide print space under pain of prosecution whether administrative civil or criminal there being no sanction or penalty for violation of said Section provided for either in said Resolution or in Section 90 of Batas Pambansa Blg 881 otherwise known as the Omnibus Election Code on the grant of Comelec Space

2 Section 8 of Res No 2772 shall not be construed to mean as constituting prior restraint on the part of the publishers with respect to the printing or publication of materials in the news opinion features or other sections of their respective publications or other accounts or comments it being clear from the last sentence of said Section 8 that the Commission shall unless the facts and circumstances clearly indicate otherwise respect the determination by the publishers andor editors of the newspapers or publications that the accounts or views published are significant newsworthy and of public interest

ISSUE

HELD Section 2 of Resolution No 2772 is not a model of clarity in expression Section 1 of Resolution No 2772-A did not try to redraft Section 2 accordingly Section 2 of resolution No 2772 persists in its original form Thus we must point out that as presently worded and in particular as interpreted and applied by the Comelec itself in its 22 March 1995 letter-directives to newspaper publishers Section 2 of Resolution No 2772 is clearly susceptible of the reading that petitioner PPI has given it A written communication officially directing a print media company tosupply free print space dispatched by government (here a constitutional) agency and signed by member of the Commission presumably legally authorized to do so is bound to produce a coercive effect upon the company so addressed That the agency may not be legally authorized to impose or cause the imposition of criminal or other sanctions for disregard of such direction only aggravates the constitutional difficulties inhering in the present situation

To compel print media companies to donate Comelec space of the dimensions specified in Section 2 of Resolution No 2772 (not less than one-half Page) amounts to taking of private personal property for public use or purposes Section 2 failed to specify the intended frequency of such compulsory donation only once during the period from 6 March 1995 (or 21 March 1995) until 12 May 1995 or everyday or once a week or has often as Comelec may direct during the same period the extent of the taking or deprivation is not insubstantial this is not a case of a de minimis temporary limitation or restraint upon the use of private property The monetary value of the compulsory donation measured by the advertising rates ordinarily charged by newspaper publishers whether in cities or in non-urban areas may be very substantial indeed

The taking of print space here sought to be effected may first be appraised under the rubric of expropriation of private personal property for public use The threshold requisites for a lawful taking of private property for public use need to be examined here one is the necessity for the taking another is the legal authority to effect the taking The element of necessity for the taking has not been shown by respondent Comelec It has not been suggested that the members of PPI are unwilling to sell print space at their normal rates to Comelec for election purposes Indeed the unwillingness or reluctance of Comelec to buy print space lies at the heart of the problem Similarly it has not been suggested let alone demonstrated that Comelec has been granted the power of imminent domain either by the Constitution or by the legislative authority A reasonable relationship between that power and the enforcement and administration of election laws by Comelec must be shown it is not casually to be assumed

Under Section 3 of Resolution No 2772 the free Comelec space sought by the respondent Commission would be used not only for informing the public about the identities qualifications and programs of government of candidates for elective office but also for dissemination of vital election information (including presumably circulars regulations notices directives etc issued by Comelec)

The taking of private property for public use is of course authorized by the Constitution but not without payment of just compensation (Article III Section 9) Section 2 of Resolution No 2772 does not however provide a constitutional basis

for compelling publishers against their will in the kind of factual context here present to provide free print space for Comelec purposes Section 2 does not constitute a valid exercise of the power of eminent domain

There was no effort (and apparently no inclination on the part of Comelec) to show that the police power mdash essentially a power of legislation mdash has been constitutionally delegated to respondent Commission And while private property may indeed be validly taken in the legitimate exercise of the police power of the state there was no attempt to show compliance in the instant case with the requisites of a lawful taking under the police power

Section 2 of Resolution No 2772 is a blunt and heavy instrument that purports without a showing of existence of a national emergency or other imperious public necessity indiscriminately and without regard to the individual business condition of particular newspapers or magazines located in different parts of the country to take private property of newspaper or magazine publishers No attempt was made to demonstrate that a real and palpable or urgent necessity for the taking of print space confronted the Comelec and that Section 2 of Resolution No 2772 was itself the only reasonable and calibrated response to such necessity available to Comelec Section 2 does not constitute a valid exercise of the police power of the State

In National Press Club v Commission on Elections-- Court sustained the constitutionality of Section 11 (b) of RA No 6646 known as the Electoral Reforms Law of 1987 which prohibits the sale or donation of print space and airtime for campaign or other political purposes except to the Comelec In doing so the Court carefully distinguished (a) paid political advertisements which are reached by the prohibition of Section 11 (b) from (b) the reporting of news commentaries and expressions of belief or opinion by reporters broadcasters editors commentators or columnists which fall outside the scope of Section 11 (b) and which are protected by the constitutional guarantees of freedom of speech and of the press Section 11 (b) as designed to cover only paid political advertisements of particular candidates It does not restrict either the reporting of or the expression of belief or opinion or comment upon the qualifications and programs and activities of any and all candidates for office

Section 2 of Resolution No 2772-A does not add substantially to the utility of Section 8 of Resolution No 2772 The distinction between paid political advertisements on the one hand and news reports commentaries and expressions of belief or opinion by reporters broadcasters editors etc on the other hand can realistically be given operative meaning only in actual cases or controversies on a case-to-case basis in terms of very specific sets of facts PPI has not claimed that it or any of its members has sustained actual or imminent injury by reason of Comelec action under Section 8 The Court considers that the precise constitutional issue here sought to be raised mdash whether or not Section 8 of Resolution No 2772 constitutes a permissible exercise of the Comelecs power under Article IX Section 4 of the Constitution to supervise or regulate the enjoyment or utilization of all franchise or permits for the operation of mdash media of communication or information mdash [for the purpose of ensuring] equal opportunity time and space and the right of reply including reasonable equal rates therefor for public-information campaigns and forums among candidates in connection with the objective of holding free orderly honest peaceful and credible elections mdash is not ripe for judicial review for lack of an actual case or controversy involving as the very lis mota thereof the constitutionality of Section 8 In fine

1 Section 2 of Resolution No 2772 in its present form and as interpreted by Comelec in its 22 March 1995 letter directives purports to require print media enterprises to donate free print space to Comelec As such Section 2 suffers from fatal constitutional vice and must be set aside and nullified

2 To the extent it pertains to Section 8 of Resolution No 2772 the Petition for Certiorari and Prohibition must be dismissed for lack of an actual justiciable case or controversy PETITION GRANTED RES AND DIRECTIVES SET ASIDE TRO MADE PERMANENT

8 PRC vs Arlene de Guzman GR No 144681 June 21 2004

FACTS Petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the Decision dated May 16 2000 of the Court of Appeals in CA-GR SP No 37283 which affirmed the judgment dated December 19 1994 of RTC Manila Branch 52 in Civil Case No 93-66530 allowing respondents to take their physicians oath and to register as duly licensed physicians Equally challenged is the Resolution promulgated on August 25 2000 of the Court of Appeals denying petitioners Motion for Reconsideration

15

February 1993-- respondents who are graduates of Fatima College of Medicine Valenzuela City Metro Manila passed the Physician Licensure Examination Petitioner Professional Regulation Commission (PRC) then released their names as successful examinees But the Board then observed that the grades of the 79 successful examinees from Fatima in the 2 most difficult subjects in the medical licensure exam Bio-Chem (11 scored 100 11 got 99) and OB-Gyne (10 got 100 21 scored 99) were unusually and exceptionally high Many of those who passed from Fatima got marks of 95 or better in both subjects and no one got a mark lower than 90 The unusually high ratings were true only for Fatima College examinees

June 7 1993-- the Board issued Resolution No 19 withholding the registration as physicians of all the examinees from Fatima PRC asked the NBI to investigate whether any anomaly or irregularity marred the February 1993 Physician Licensure Examination

June 10 1993-- requested Fr Bienvenido F Nebres SJ an expert mathematician and authority in statistics who conducted a statistical analysis of the results in Bio-Chem and Ob-Gyne of the said examination submitted his report He reported that a comparison of the scores in Bio-Chem and Ob-Gyne of the Fatima College examinees with those of examinees from De La Salle University and Perpetual Help College of Medicine showed that the scores of Fatima College examinees were not only incredibly high but unusually clustered close to each other He concluded that there must be some unusual reason creating the clustering of scores in the two subjects It must be a cause strong enough to eliminate the normal variations that one should expect from the examinees [of Fatima College] in terms of talent effort energy etc NBI also found that the questionable passing rate of Fatima examinees in the [1993] Physician Examination leads to the conclusion that the Fatima examinees gained early access to the test questions

July 5 1993-- respondents Arlene V De Guzman et al filed a special civil action for mandamus with prayer for preliminary mandatory injunction docketed as Civil Case No 93-66530 with the Regional Trial Court (RTC) of Manila Branch 52 Their petition was adopted by the other respondents as intervenors

July 21 1993-- the Board issued Resolution No 26 charging respondents with immorality dishonest conduct fraud and deceit in connection with the Bio-Chem and Ob-Gyne examinations It recommended that the test results of the Fatima examinees be nullified The case was docketed as Adm Case No 1687 by the PRC

July 28 1993-- the RTC issued an Order in Civil Case No 93-66530 granting the preliminary mandatory injunction sought by the respondents It ordered the petitioners to administer the physicians oath to Arlene V De Guzman et al and enter their names in the rolls of the PRC The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the mandatory injunctive writ docketed as CA-GR SP No 31701

October 21 1993-- CA decided CA-GR SP No 3170 granting the petition and nullifying the mandatory injuction issued by the lower courts against the petitioner board

November 22 1993-- during the pendency of the instant petition (GR No 112315 By respondent de Guzman et al which was denied later on May 23 1994) the pre-trial conference in Civil Case No 93-66530 was held Then the parties agreed to reduce the testimonies of their respective witnesses to sworn questions-and-answers This was without prejudice to cross-examination by the opposing counsel

December 13 1993-- petitioners counsel failed to appear at the trial in the mistaken belief that the trial was set for December 15 The trial court then ruled that petitioners waived their right to cross-examine the witnesses

January 27 1994-- counsel for petitioners filed a Manifestation and Motion stating the reasons for her non-appearance and praying that the cross-examination of the witnesses for the opposing parties be reset The trial court denied the motion for lack of notice to adverse counsel It also denied the Motion for Reconsideration that followed on the ground that adverse counsel was notified less than three (3) days prior to the hearing

April 4 1994-- lower court granted the respondents prayer for issuance of a restraining order

August 31 1994mdashCA decided the petitionerrsquos prayer (pinjunctionTRO)to annul the Orders of the trial court dated November 13 1993 February 28 1994 and April 4 1994 (restraining order) RTC-Manila is ordered to allow petitioners counsel to cross-examine the respondents witnesses to allow petitioners to present their evidence in due course of trial and thereafter to decide the case on the merits on the basis of the evidence of the parties

September 22 1994-- petitioners filed an Urgent Ex-Parte Manifestation and Motion praying for the partial reconsideration of the appellate courts decision in CA-GR SP No 34506 and for the outright dismissal of Civil Case No 93-66530 The petitioners asked for the suspension of the proceedings

September 23 1994-- the trial court granted the aforesaid motion cancelled the scheduled hearing dates and reset the proceedings to October 21 and 28 1994

October 25 1994-- CA denied the partial motion for reconsideration in CA-GR SP No 34506 Thus petitioners filed with the Supreme Court a petition for review docketed as GR No 117817 entitled Professional Regulation Commission et al v Court of Appeals et al

November 11 1994-- counsel for the petitioners failed to appear at the trial of Civil Case No 93-66530 Upon motion of the respondents herein the trial court ruled that herein petitioners waived their right to cross-examine the herein respondents Trial was reset to November 28 1994

November 25 1994-- petitioners counsel moved for the inhibition of the trial court judge for alleged partiality

November 28 1994-- the day the Motion to Inhibit was to be heard petitioners failed to appear Thus the trial court denied the Motion to Inhibit and declared Civil Case No 93-66530 deemed submitted for decision

December 19 1994-- the trial court handed down its judgment in Civil Case No 93-66530 ordering the respondents to allow the petitioners and intervenors to take the physicians oath and to register them as physicians without prejudice to any administrative disciplinary action which may be taken against any of the petitioners

petitioners filed with this Court a petition for review on certiorari docketed as GR No 118437 entitled Professional Regulation Commission v Hon David G Nitafan praying inter alia that (1) GR No 118437 be consolidated with GR No 117817 (2) the decision of the Court of Appeals dated August 31 1994 in CA-GR SP No 34506 be nullified for its failure to decree the dismissal of Civil Case No 93-66530 and in the alternative to set aside the decision of the trial court in Civil Case No 93-66530 order the trial court judge to inhibit himself and Civil Case No 93-66530 be re-raffled to another branch

December 26 1994-- the petitioners herein filed their Notice of Appeal 11 in Civil Case No 93-66530 thereby elevating the case to the Court of Appeals where it was docketed as CA-GR SP No 37283

June 7 1995-- R No 118437 was consolidated with GR No 117817

July 1 1997-- the Board cancelled the respondentsrsquo examination papers in the Physician Licensure Examinations given in February 1993 and further debars them from taking any licensure examination for a period of 1 year from the date of the promulgation of this decision They may if they so desire apply for the scheduled examinations for physicians after the lapse of the period imposed by the BOARD

July 9 1998-- GR No 117817 is DISMISSED for being moot The petition in GR No 118437 is likewise DISMISSED on the ground that there is a pending appeal before the Court of Appeals

May 16 2000-- finding no reversible error in the decision appealed from CA hereby affirmed CA-GR SP No 37283 and DISMISS the instant appeal the appellate court ratiocinated that the respondents complied with all the statutory

11

23 October 1995-- MMDA was directed to return the respondents drivers license

14 August 1997--- the trial court rendered the assailed decision in favor of the herein respondent and held that

a There was indeed no quorum in that First Regular Meeting of the MMDA Council held on March 23 1995 hence MMDA Memorandum Circular No TT-95-001 authorizing confiscation of drivers licenses upon issuance of a TVR is void ab initio

b The summary confiscation of a drivers license without first giving the driver an opportunity to be heard depriving him of a property right (drivers license) without DUE PROCESS not filling (sic) in Court the complaint of supposed traffic infraction cannot be justified by any legislation (and is) hence unconstitutional

MMDA is directed to return to plaintiff his drivers license and likewise ordered to desist from confiscating drivers license without first giving the driver the opportunity to be heard in an appropriate proceeding

MMDA files this present petition contending that a license to operate a motor vehicle is neither a contract nor a property right but is a privilege subject to reasonable regulation under the police power in the interest of the public safety and welfare That revocation or suspension of this privilege does not constitute a taking without due process as long as the licensee is given the right to appeal the revocation

That a licensee may indeed appeal the taking and the judiciary retains the power to determine the validity of the confiscation suspension or revocation of the license the petitioner points out that under the terms of the confiscation the licensee has three options (1) To voluntarily pay the imposable fine (2) To protest the apprehension by filing a protest with the MMDA Adjudication Committee or(3) To request the referral of the TVR to the Public Prosecutors Office

The MMDA argues that Memorandum Circular No TT-95-001 was validly passed in the presence of a quorum that the lower courts finding that it had not was based on a misapprehension of factsrdquo Moreover it asserts that though the circular is the basis for the issuance of TVRs the basis for the summary confiscation of licenses is Sec 5(f) of Rep Act No 7924 itself and that such power is self-executory and does not require the issuance of any implementing regulation or circular

ISSUE WON the MMDArsquos power to confiscate and suspend or revoke drivers licenses is an unauthorized exercise of police power

HELD YES 12 August 2004-- MMDA Chairman Bayani Fernando implemented Memorandum Circular No 04 Series of 2004 outlining the procedures for the use of the Metropolitan Traffic Ticket (MTT) scheme Under the circular erring motorists are issued an MTT which can be paid at any Metrobank branch Traffic enforcers may no longer confiscate drivers licenses as a matter of course in cases of traffic violations All motorists with unredeemed TVRs were given seven days from the date of implementation of the new system to pay their fines and redeem their license or vehicle plates

The case has been rendered moot and academic by the implementation of Memorandum Circular No 04 Series of 2004 MMDA however is not precluded from re-implementing Memorandum Circular No TT-95-001 or any other scheme for that matter that would entail confiscating drivers licenses For the proper implementation therefore of the petitioners future programs this Court deems it appropriate to make the following observations

1 A license to operate a motor vehicle is a privilege that the state may withhold in the exercise of its police power

It is the legislature in the exercise of police power which has the power and responsibility to regulate how and by whom motor vehicles may be operated on the state highways in the interest of the public safety and welfare subject to the procedural due process requirements

in Commonwealth v Funk Automobiles are vehicles of great speed and power The use of them constitutes an element of danger to persons and property upon the highways Carefully operated an automobile is still a dangerous instrumentality but when operated by careless or incompetent persons it becomes an engine of destruction The Legislature in the exercise of the police power of the commonwealth not only may but must prescribe how and by whom motor vehicles shall be operated on the highways One of the primary purposes of a system of general regulation of the subject matter as here by the Vehicle Code is to insure the competency of the operator of motor vehicles Such a general law is manifestly directed to the promotion of public safety and is well within the police power

2 The MMDA is not vested with police power

Rep Act No 7924 does not grant the MMDA with police power let alone legislative power and that all its functions are administrative in nature (Metro Manila Development Authority v Bel-Air Village Association Inc)

Tracing the legislative history of Rep Act No 7924 creating the MMDA we concluded that the MMDA is not a local government unit or a public corporation endowed with legislative power

Police power as an inherent attribute of sovereignty is 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 Having been 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 (LGUs) Once delegated the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body

Metropolitan or Metro Manila is a body composed of several local government units (def political subdivision of a nation or state which is constituted by law and has substantial control of local affairs Eg provinces cities municipalities barangays) With the passage of Rep Act No 7924 in 1995 Metropolitan Manila was declared as a special development and administrative region and the administration of metro-wide basic services affecting the region placed under a development authority referred to as the MMDA

There is no syllable in R A No 7924 that grants the MMDA police power let alone legislative power Even the Metro Manila Council has not been delegated any legislative power Unlike the legislative bodies of the local government units there is no provision in R A No 7924 that empowers the MMDA or its Council to enact ordinances approve resolutions and appropriate funds for the general welfare of the inhabitants of Metro Manila The MMDA is as termed in the charter itself a development authority It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies peoples organizations non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area All its functions are administrative in nature

3 Sec 5(f) grants the MMDA with the duty to enforce existing traffic rules and regulations

Sec 5(f) states that the petitioner shall install and administer a single ticketing system fix impose and collect fines and penalties for all kinds of violations of traffic rules and regulations whether moving or nonmoving in nature and confiscate and suspend or revoke drivers licenses in the enforcement of such traffic laws and regulations the provisions of Rep Act No 4136 and PD No 1605 to the contrary notwithstanding and that (f)or this purpose the Authority shall enforce all traffic laws and regulations in Metro Manila through its traffic operation center and may deputize members of the PNP traffic enforcers of local government units duly licensed security guards or members of non-governmental organizations to whom may be delegated certain authority subject to such conditions and requirements as the Authority may impose

Thus where there is a traffic law or regulation validly enacted by the legislature or those agencies to whom legislative powers have been delegated (the City of Manila in this case) the MMDA is duty-bound mdash to confiscate and suspend or revoke drivers licenses in the exercise of its mandate of transport and traffic management as well as the administration and implementation of all traffic enforcement operations traffic engineering services and traffic education programs

12

The MMDA was intended to coordinate services with metro-wide impact that transcend local political boundaries or would entail huge expenditures if provided by the individual LGUs especially with regard to transport and traffic management but these laudable intentions are limited by the MMDAs enabling law which we can but interpret and petitioner must be reminded that its efforts in this respect must be authorized by a valid law or ordinance or regulation arising from a legitimate source DISMISSED

6 Ortigas amp Co Ltd vs Court of Appeals GR No 126102 December 4 2000

FACTS petition seeks to reverse the decision of the Court of Appeals dated March 25 1996 in CA-GR SP No 39193 which nullified the writ of preliminary injunction issued by the Regional Trial Court of Pasig City Branch 261 in Civil Case No 64931 It also assails the resolution of the appellate court dated August 13 1996 denying petitioners motion for reconsideration

August 25 1976-- Ortigas sold to the Hermosos a parcel of land (Lot 1 Block 21 Psd-66759 with an area of 1508 square meters and covered by Transfer Certificate of Title No 0737) in Greenhills Subdivision The contract of sale provided that the lot will be used for single-family residential building only and this was annotated at the back of the title of the lot

1981-- the Metropolitan Commission enacted MMC (now MMDA) Ordinance No 81-01 reclassifying as a commercial zone the stretch of Ortigas Avenue from Roosevelt Street to Madison Street

June 8 1984-- private respondent Mathay III leased the lot from Hermoso and constructed a commercial building for Greenhills Autohaus Inc a car sales company

January 18 1995mdashpetitioner Ortigas filed a complaint against Hermoso with the RTC Pasig Branch 261 Docketed as Civil Case No 64931 seeking thethe demolition of the said commercial structure for having violated the terms and conditions of the Deed of Sale Complainant prayed for the issuance of a temporary restraining order and a writ of preliminary injunction to prohibit petitioner from constructing the commercial building andor engaging in commercial activity on the lot The complaint was later amended to implead Ismael G Mathay III and JP Hermoso Realty Corp which has a ten percent (10) interest in the lot

June 16 1995--- court issued the writ of preliminary injunction

June 29 1995-- Mathay III moved to set aside the injunctive order but the trial court denied the motion He filed with the CA a special civil action for certiorari docketed as CA-GR SP No 39193 ascribing to the trial court grave abuse of discretion in issuing the writ of preliminary injunction He claimed that MMC Ordinance No 81-01 classified the area where the lot was located as commercial area and said ordinance must be read into the August 25 1976 Deed of Sale as a concrete exercise of police power

March 25 1996mdashCA granted the petition and the assailed orders are nullified

Petitioner Otigas in this present petition asserts that Mathay III lacks legal capacity to question the validity of conditions of the deed of sale and he is barred by estoppel or waiver to raise the same question like his principals the owners

Petitioner contends that the appellate court erred in limiting its decision to the cited zoning ordinance It avers that a contractual right is not automatically discarded once a claim is made that it conflicts with police power Petitioner submits that the restrictive clauses in the questioned contract is not in conflict with the zoning ordinance For one according to petitioner the MMC Ordinance No 81-01 did not prohibit the construction of residential buildings Petitioner argues that even with the zoning ordinance the seller and buyer of the re-classified lot can voluntarily agree to an exclusive residential use thereof Hence petitioner concludes that the Court of Appeals erred in holding that the condition imposing exclusive residential use was effectively nullified by the zoning ordinance

In its turn private respondent argues that the appellate court correctly ruled that the trial court had acted with grave abuse of discretion in refusing to subject the contract to the MMC Ordinance No 81-01 He avers that the appellate court properly held the police power superior to the non-impairment of contract clause in the Constitution He concludes that the appellate court did not err in dissolving the writ of preliminary injunction issued by the trial court in excess of its jurisdiction

ISSUE whether the Court of Appeals erred in holding that the trial court committed grave abuse of discretion when it refused to apply MMC Ordinance No 81-01 to Civil Case No 64931

HELD NO The trial court observed that the contract of sale was entered into in August 1976 while the zoning ordinance was enacted only in March 1981 The trial court reasoned that since private respondent had failed to show that MMC Ordinance No 81-01 had retroactive effect said ordinance should be given prospective application Only laws existing at the time of the execution of a contract are applicable thereto and not later statutes unless the latter are specifically intended to have retroactive effect A later law which enlarges abridges or in any manner changes the intent of the parties to the contract necessarily impairs the contract itself and cannot be given retroactive effect without violating the constitutional prohibition against impairment of contracts

But a law enacted in the exercise of police power to regulate or govern certain activities or transactions could be given retroactive effect and may reasonably impair vested rights or contracts Police power legislation is applicable not only to future contracts but equally to those already in existence Non-impairment of contracts or vested rights clauses will have to yield to the superior and legitimate exercise by the State of police power to promote the health morals peace education good order safety and general welfare of the people Moreover statutes in exercise of valid police power must be read into every contract

The trial courts reliance on the Co vs IAC is misplaced In Co the disputed area was agricultural and Ordinance No 81-01 did not specifically provide that it shall have retroactive effect so as to discontinue all rights previously acquired over lands located within the zone which are neither residential nor light industrial in nature and stated with respect to agricultural areas covered that the zoning ordinance should be given prospective operation only The area in this case involves not agricultural but urban residential land Ordinance No 81-01 retroactively affected the operation of the zoning ordinance in Greenhills by reclassifying certain locations therein as commercial

The contractual stipulations annotated on the Torrens Title on which Ortigas relies must yield to the ordinance When that stretch of Ortigas Avenue from Roosevelt Street to Madison Street was reclassified as a commercial zone by the Metropolitan Manila Commission in March 1981 the restrictions in the contract of sale between Ortigas and Hermoso limiting all construction on the disputed lot to single-family residential buildings were deemed extinguished by the retroactive operation of the zoning ordinance and could no longer be enforced While our legal system upholds the sanctity of contract so that a contract is deemed law between the contracting parties nonetheless stipulations in a contract cannot contravene law morals good customs public order or public policy Otherwise such stipulations would be deemed null and void Respondent court correctly found that the trial court committed in this case a grave abuse of discretion amounting to want of or excess of jurisdiction in refusing to treat Ordinance No 81-01 as applicable to Civil Case No 64931 In resolving matters in litigation judges are not only duty-bound to ascertain the facts and the applicable laws they are also bound by their oath of office to apply the applicable law

A real party in interest is defined as the party who stands to be benefited or injured by the judgment or the party entitled to the avails of the suit Interest within the meaning of the rule means material interest an interest in issue and to be affected by the decree as distinguished from mere interest in the question involved or a mere incidental interest By real interest is meant a present substantial interest as distinguished from a mere expectancy or a future contingent subordinate or consequential interest

13

private respondent in this case is clearly a real party in interest It is not disputed that he is in possession of the lot pursuant to a valid lease He is a possessor in the concept of a holder of the thing under Article 525 of the Civil Code He was impleaded as a defendant in the amended complaint in Civil Case No 64931 Further what petitioner seeks to enjoin is the building by respondent of a commercial structure on the lot Clearly it is private respondents acts which are in issue and his interest in said issue cannot be a mere incidental interest In its amended complaint petitioner prayed for among others judgment ordering the demolition of all improvements illegally built on the lot in question These show that it is petitioner Mathay III doing business as Greenhills Autohaus Inc and not only the Hermosos who will be adversely affected by the courts decree DENIED

7 Philippine Press Institute vs COMELEC GR No 119694 May 22 1995

FACTS Petition for Certiorari and Prohibition with prayer for the issuance of a Temporary restraining order Philippine Press Institute Inc (PPI) is before this Court assailing the constitutional validity of Resolution No 2772 issued by respondent Commission on Elections (Comelec) and its corresponding Comelec directive dated 22 March 1995 through a Petition for Certiorari and Prohibition Petitioner PPI is a non-stock non-profit organization of newspaper and magazine publishers

On 2 March 1995 Comelec promulgated Resolution No 2772 which reads in part xxx xxx xxx

Sec 2 Comelec Space mdash The Commission shall procure free print space of not less than one half (12) page in at least one newspaper of general circulation in every province or city for use as Comelec Space from March 6 1995 in the case of candidates for senators and from March 21 1995 until May 12 1995 In the absence of said newspaper Comelec Space shall be obtained from any magazine or periodical of said province or city

Sec 3 Uses of Comelec Space mdash Comelec Space shall be allocated by the Commission free of charge among all candidates within the area in which the newspaper magazine or periodical is circulated to enable the candidates to make known their qualifications their stand on public issues and their platforms and programs of government

Comelec Space shall also be used by the Commission for dissemination of vital election information

Sec 4 Allocation of Comelec Space mdash (a) Comelec Space shall be available to all candidates during the periods stated in Section 2 hereof Its allocation shall be equal and impartial among all candidates for the same office All candidates concerned shall be furnished a copy of the allocation of Comelec Space for their information guidance and compliance

(b) Any candidate desiring to avail himself of Comelec Space from newspapers or publications based in the Metropolitan Manila Area shall submit an application therefor in writing to the Committee on Mass Media of the Commission Any candidate desiring to avail himself of Comelec Space in newspapers or publications based in the provinces shall submit his application therefor in writing to the Provincial Election Supervisor concerned Applications for availment of Comelec Space may be filed at any time from the date of effectivity of this Resolution

(c) The Committee on Mass Media and the Provincial Election Supervisors shall allocate available Comelec Space among the candidates concerned by lottery of which said candidates shall be notified in advance in writing to be present personally or by representative to witness the lottery at the date time and place specified in the notice Any party objecting to the result of the lottery may appeal to the Commission

(d) The candidates concerned shall be notified by the Committee on Mass Media or the Provincial Election Supervisor as the case may be sufficiently in advance and in writing of the date of issue and the newspaper or publication allocated to him and the time within which he must submit the written material for publication in the Comelec Spacexxx xxx xxx

Sec 8 Undue Reference to CandidatesPolitical Parties in Newspapers mdash No newspaper or publication shall allow to be printed or published in the news opinion features or other sections of the newspaper or publication accounts or comments which manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or including therein said candidate or political party However unless the facts and circumstances clearly indicate otherwise the Commission will respect the determination by the publisher andor editors of the newspapers or publication that the accounts or views published are significant newsworthy and of public interest (Emphasis supplied)

22 March 1995-- Comelec sent directives to thePhilippine Star the Malaya and the Philippine Times Journal all members of PPI These letters read as follows

This is to advise you that pursuant to Resolution No 2772 of the Commission on Elections you are directed to provide free print space of not less than one half (frac12) page for use as Comelec Space or similar to the print support which you have extended during the May 11 1992 synchronized elections which was 2 full pages for each political party fielding senatorial candidates from March 6 1995 to May 6 1995 to make known to their qualifications their stand on public issues and their platforms and programs of government

We shall be informing the political parties and candidates to submit directly to you their pictures biographical data stand on key public issues and platforms of government either as raw data or in the form of positives or camera-ready materials

Please be reminded that the political partiescandidates may be accommodated in your publications any day upon receipt of their materials until May 6 1995 which is the day for campaigning We trust you to extend your full support and cooperation in this regard

PPI asks to declare Comelec Resolution No 2772 unconstitutional and void on the ground that it violates the prohibition imposed by the Constitution upon the government and any of its agencies against the taking of private property for public use without just compensation Petitioner also contends that the 22 March 1995 letter directives of Comelec requiring publishers to give free Comelec Space and at the same time process raw data to make it camera-ready constitute impositions of involuntary servitude contrary to the provisions of Section 18 (2) Article III of the 1987 Constitution Finally PPI argues that Section 8 of Comelec Resolution No 2772 is violative of the constitutionally guaranteed freedom of speech of the press and of expression

20 April 1995-- this Court issued a Temporary Restraining Order enjoining Comelec from enforcing and implementing Section 2 of Resolution No 2772 as well as the Comelec directives addressed to various print media enterprises all dated 22 March 1995 The Court also required the respondent to file a Comment on the Petition

The Office of the SolGen filed its Comment on behalf of respondent Comelec alleging that Comelec Resolution No 2772 does not impose upon the publishers any obligation to provide free print space in the newspapers as it does not provide any criminal or administrative sanction for non-compliance with that Resolution The questioned Resolution merely established guidelines to be followed in connection with the procurement of Comelec space the procedure for and mode of allocation of such space to candidates and the conditions or requirements for the candidates utilization of the Comelec space procured Even if the questioned Resolution and its implementing letter directives are viewed as mandatory the same would nevertheless be valid as an exercise of the police power of the State Section 8 of Resolution No 2772 is a permissible exercise of the power of supervisor or regulation of the Comelec over the communication and information operations of print media enterprises during the election period to safeguard and ensure a fair impartial and credible election

28 April 1995-- Oral arguments Comelec thr ChairmanBernardo Pardo stated that Resolution No 2772 particularly Section 2 thereof and the 22 March 1995 letters dispatched to various members of petitioner PPI were not intended to compel those members to supply Comelec with free print space They were merely designed to solicit from the publishers the same free print space which many publishers had voluntarily given to Comelec during the election period relating to the 11 May 1992 elections the Comelec would that very afternoon meet and adopt an appropriate amending or clarifying resolution a certified true copy of which would forthwith be filed with the Court

14

On 5 May 1995-- the Court received from the SolGen a manifestation which attached a copy of Comelec resolution No 2772-A dated 4 May 1995 The operative portion of this Resolution follows with clarifications on Sections 2 and 8 of Res No 2772 as follows

1 Section 2 of Res No 2772 shall not be construed to mean as requiring publishers of the different mass media print publications to provide print space under pain of prosecution whether administrative civil or criminal there being no sanction or penalty for violation of said Section provided for either in said Resolution or in Section 90 of Batas Pambansa Blg 881 otherwise known as the Omnibus Election Code on the grant of Comelec Space

2 Section 8 of Res No 2772 shall not be construed to mean as constituting prior restraint on the part of the publishers with respect to the printing or publication of materials in the news opinion features or other sections of their respective publications or other accounts or comments it being clear from the last sentence of said Section 8 that the Commission shall unless the facts and circumstances clearly indicate otherwise respect the determination by the publishers andor editors of the newspapers or publications that the accounts or views published are significant newsworthy and of public interest

ISSUE

HELD Section 2 of Resolution No 2772 is not a model of clarity in expression Section 1 of Resolution No 2772-A did not try to redraft Section 2 accordingly Section 2 of resolution No 2772 persists in its original form Thus we must point out that as presently worded and in particular as interpreted and applied by the Comelec itself in its 22 March 1995 letter-directives to newspaper publishers Section 2 of Resolution No 2772 is clearly susceptible of the reading that petitioner PPI has given it A written communication officially directing a print media company tosupply free print space dispatched by government (here a constitutional) agency and signed by member of the Commission presumably legally authorized to do so is bound to produce a coercive effect upon the company so addressed That the agency may not be legally authorized to impose or cause the imposition of criminal or other sanctions for disregard of such direction only aggravates the constitutional difficulties inhering in the present situation

To compel print media companies to donate Comelec space of the dimensions specified in Section 2 of Resolution No 2772 (not less than one-half Page) amounts to taking of private personal property for public use or purposes Section 2 failed to specify the intended frequency of such compulsory donation only once during the period from 6 March 1995 (or 21 March 1995) until 12 May 1995 or everyday or once a week or has often as Comelec may direct during the same period the extent of the taking or deprivation is not insubstantial this is not a case of a de minimis temporary limitation or restraint upon the use of private property The monetary value of the compulsory donation measured by the advertising rates ordinarily charged by newspaper publishers whether in cities or in non-urban areas may be very substantial indeed

The taking of print space here sought to be effected may first be appraised under the rubric of expropriation of private personal property for public use The threshold requisites for a lawful taking of private property for public use need to be examined here one is the necessity for the taking another is the legal authority to effect the taking The element of necessity for the taking has not been shown by respondent Comelec It has not been suggested that the members of PPI are unwilling to sell print space at their normal rates to Comelec for election purposes Indeed the unwillingness or reluctance of Comelec to buy print space lies at the heart of the problem Similarly it has not been suggested let alone demonstrated that Comelec has been granted the power of imminent domain either by the Constitution or by the legislative authority A reasonable relationship between that power and the enforcement and administration of election laws by Comelec must be shown it is not casually to be assumed

Under Section 3 of Resolution No 2772 the free Comelec space sought by the respondent Commission would be used not only for informing the public about the identities qualifications and programs of government of candidates for elective office but also for dissemination of vital election information (including presumably circulars regulations notices directives etc issued by Comelec)

The taking of private property for public use is of course authorized by the Constitution but not without payment of just compensation (Article III Section 9) Section 2 of Resolution No 2772 does not however provide a constitutional basis

for compelling publishers against their will in the kind of factual context here present to provide free print space for Comelec purposes Section 2 does not constitute a valid exercise of the power of eminent domain

There was no effort (and apparently no inclination on the part of Comelec) to show that the police power mdash essentially a power of legislation mdash has been constitutionally delegated to respondent Commission And while private property may indeed be validly taken in the legitimate exercise of the police power of the state there was no attempt to show compliance in the instant case with the requisites of a lawful taking under the police power

Section 2 of Resolution No 2772 is a blunt and heavy instrument that purports without a showing of existence of a national emergency or other imperious public necessity indiscriminately and without regard to the individual business condition of particular newspapers or magazines located in different parts of the country to take private property of newspaper or magazine publishers No attempt was made to demonstrate that a real and palpable or urgent necessity for the taking of print space confronted the Comelec and that Section 2 of Resolution No 2772 was itself the only reasonable and calibrated response to such necessity available to Comelec Section 2 does not constitute a valid exercise of the police power of the State

In National Press Club v Commission on Elections-- Court sustained the constitutionality of Section 11 (b) of RA No 6646 known as the Electoral Reforms Law of 1987 which prohibits the sale or donation of print space and airtime for campaign or other political purposes except to the Comelec In doing so the Court carefully distinguished (a) paid political advertisements which are reached by the prohibition of Section 11 (b) from (b) the reporting of news commentaries and expressions of belief or opinion by reporters broadcasters editors commentators or columnists which fall outside the scope of Section 11 (b) and which are protected by the constitutional guarantees of freedom of speech and of the press Section 11 (b) as designed to cover only paid political advertisements of particular candidates It does not restrict either the reporting of or the expression of belief or opinion or comment upon the qualifications and programs and activities of any and all candidates for office

Section 2 of Resolution No 2772-A does not add substantially to the utility of Section 8 of Resolution No 2772 The distinction between paid political advertisements on the one hand and news reports commentaries and expressions of belief or opinion by reporters broadcasters editors etc on the other hand can realistically be given operative meaning only in actual cases or controversies on a case-to-case basis in terms of very specific sets of facts PPI has not claimed that it or any of its members has sustained actual or imminent injury by reason of Comelec action under Section 8 The Court considers that the precise constitutional issue here sought to be raised mdash whether or not Section 8 of Resolution No 2772 constitutes a permissible exercise of the Comelecs power under Article IX Section 4 of the Constitution to supervise or regulate the enjoyment or utilization of all franchise or permits for the operation of mdash media of communication or information mdash [for the purpose of ensuring] equal opportunity time and space and the right of reply including reasonable equal rates therefor for public-information campaigns and forums among candidates in connection with the objective of holding free orderly honest peaceful and credible elections mdash is not ripe for judicial review for lack of an actual case or controversy involving as the very lis mota thereof the constitutionality of Section 8 In fine

1 Section 2 of Resolution No 2772 in its present form and as interpreted by Comelec in its 22 March 1995 letter directives purports to require print media enterprises to donate free print space to Comelec As such Section 2 suffers from fatal constitutional vice and must be set aside and nullified

2 To the extent it pertains to Section 8 of Resolution No 2772 the Petition for Certiorari and Prohibition must be dismissed for lack of an actual justiciable case or controversy PETITION GRANTED RES AND DIRECTIVES SET ASIDE TRO MADE PERMANENT

8 PRC vs Arlene de Guzman GR No 144681 June 21 2004

FACTS Petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the Decision dated May 16 2000 of the Court of Appeals in CA-GR SP No 37283 which affirmed the judgment dated December 19 1994 of RTC Manila Branch 52 in Civil Case No 93-66530 allowing respondents to take their physicians oath and to register as duly licensed physicians Equally challenged is the Resolution promulgated on August 25 2000 of the Court of Appeals denying petitioners Motion for Reconsideration

15

February 1993-- respondents who are graduates of Fatima College of Medicine Valenzuela City Metro Manila passed the Physician Licensure Examination Petitioner Professional Regulation Commission (PRC) then released their names as successful examinees But the Board then observed that the grades of the 79 successful examinees from Fatima in the 2 most difficult subjects in the medical licensure exam Bio-Chem (11 scored 100 11 got 99) and OB-Gyne (10 got 100 21 scored 99) were unusually and exceptionally high Many of those who passed from Fatima got marks of 95 or better in both subjects and no one got a mark lower than 90 The unusually high ratings were true only for Fatima College examinees

June 7 1993-- the Board issued Resolution No 19 withholding the registration as physicians of all the examinees from Fatima PRC asked the NBI to investigate whether any anomaly or irregularity marred the February 1993 Physician Licensure Examination

June 10 1993-- requested Fr Bienvenido F Nebres SJ an expert mathematician and authority in statistics who conducted a statistical analysis of the results in Bio-Chem and Ob-Gyne of the said examination submitted his report He reported that a comparison of the scores in Bio-Chem and Ob-Gyne of the Fatima College examinees with those of examinees from De La Salle University and Perpetual Help College of Medicine showed that the scores of Fatima College examinees were not only incredibly high but unusually clustered close to each other He concluded that there must be some unusual reason creating the clustering of scores in the two subjects It must be a cause strong enough to eliminate the normal variations that one should expect from the examinees [of Fatima College] in terms of talent effort energy etc NBI also found that the questionable passing rate of Fatima examinees in the [1993] Physician Examination leads to the conclusion that the Fatima examinees gained early access to the test questions

July 5 1993-- respondents Arlene V De Guzman et al filed a special civil action for mandamus with prayer for preliminary mandatory injunction docketed as Civil Case No 93-66530 with the Regional Trial Court (RTC) of Manila Branch 52 Their petition was adopted by the other respondents as intervenors

July 21 1993-- the Board issued Resolution No 26 charging respondents with immorality dishonest conduct fraud and deceit in connection with the Bio-Chem and Ob-Gyne examinations It recommended that the test results of the Fatima examinees be nullified The case was docketed as Adm Case No 1687 by the PRC

July 28 1993-- the RTC issued an Order in Civil Case No 93-66530 granting the preliminary mandatory injunction sought by the respondents It ordered the petitioners to administer the physicians oath to Arlene V De Guzman et al and enter their names in the rolls of the PRC The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the mandatory injunctive writ docketed as CA-GR SP No 31701

October 21 1993-- CA decided CA-GR SP No 3170 granting the petition and nullifying the mandatory injuction issued by the lower courts against the petitioner board

November 22 1993-- during the pendency of the instant petition (GR No 112315 By respondent de Guzman et al which was denied later on May 23 1994) the pre-trial conference in Civil Case No 93-66530 was held Then the parties agreed to reduce the testimonies of their respective witnesses to sworn questions-and-answers This was without prejudice to cross-examination by the opposing counsel

December 13 1993-- petitioners counsel failed to appear at the trial in the mistaken belief that the trial was set for December 15 The trial court then ruled that petitioners waived their right to cross-examine the witnesses

January 27 1994-- counsel for petitioners filed a Manifestation and Motion stating the reasons for her non-appearance and praying that the cross-examination of the witnesses for the opposing parties be reset The trial court denied the motion for lack of notice to adverse counsel It also denied the Motion for Reconsideration that followed on the ground that adverse counsel was notified less than three (3) days prior to the hearing

April 4 1994-- lower court granted the respondents prayer for issuance of a restraining order

August 31 1994mdashCA decided the petitionerrsquos prayer (pinjunctionTRO)to annul the Orders of the trial court dated November 13 1993 February 28 1994 and April 4 1994 (restraining order) RTC-Manila is ordered to allow petitioners counsel to cross-examine the respondents witnesses to allow petitioners to present their evidence in due course of trial and thereafter to decide the case on the merits on the basis of the evidence of the parties

September 22 1994-- petitioners filed an Urgent Ex-Parte Manifestation and Motion praying for the partial reconsideration of the appellate courts decision in CA-GR SP No 34506 and for the outright dismissal of Civil Case No 93-66530 The petitioners asked for the suspension of the proceedings

September 23 1994-- the trial court granted the aforesaid motion cancelled the scheduled hearing dates and reset the proceedings to October 21 and 28 1994

October 25 1994-- CA denied the partial motion for reconsideration in CA-GR SP No 34506 Thus petitioners filed with the Supreme Court a petition for review docketed as GR No 117817 entitled Professional Regulation Commission et al v Court of Appeals et al

November 11 1994-- counsel for the petitioners failed to appear at the trial of Civil Case No 93-66530 Upon motion of the respondents herein the trial court ruled that herein petitioners waived their right to cross-examine the herein respondents Trial was reset to November 28 1994

November 25 1994-- petitioners counsel moved for the inhibition of the trial court judge for alleged partiality

November 28 1994-- the day the Motion to Inhibit was to be heard petitioners failed to appear Thus the trial court denied the Motion to Inhibit and declared Civil Case No 93-66530 deemed submitted for decision

December 19 1994-- the trial court handed down its judgment in Civil Case No 93-66530 ordering the respondents to allow the petitioners and intervenors to take the physicians oath and to register them as physicians without prejudice to any administrative disciplinary action which may be taken against any of the petitioners

petitioners filed with this Court a petition for review on certiorari docketed as GR No 118437 entitled Professional Regulation Commission v Hon David G Nitafan praying inter alia that (1) GR No 118437 be consolidated with GR No 117817 (2) the decision of the Court of Appeals dated August 31 1994 in CA-GR SP No 34506 be nullified for its failure to decree the dismissal of Civil Case No 93-66530 and in the alternative to set aside the decision of the trial court in Civil Case No 93-66530 order the trial court judge to inhibit himself and Civil Case No 93-66530 be re-raffled to another branch

December 26 1994-- the petitioners herein filed their Notice of Appeal 11 in Civil Case No 93-66530 thereby elevating the case to the Court of Appeals where it was docketed as CA-GR SP No 37283

June 7 1995-- R No 118437 was consolidated with GR No 117817

July 1 1997-- the Board cancelled the respondentsrsquo examination papers in the Physician Licensure Examinations given in February 1993 and further debars them from taking any licensure examination for a period of 1 year from the date of the promulgation of this decision They may if they so desire apply for the scheduled examinations for physicians after the lapse of the period imposed by the BOARD

July 9 1998-- GR No 117817 is DISMISSED for being moot The petition in GR No 118437 is likewise DISMISSED on the ground that there is a pending appeal before the Court of Appeals

May 16 2000-- finding no reversible error in the decision appealed from CA hereby affirmed CA-GR SP No 37283 and DISMISS the instant appeal the appellate court ratiocinated that the respondents complied with all the statutory

12

The MMDA was intended to coordinate services with metro-wide impact that transcend local political boundaries or would entail huge expenditures if provided by the individual LGUs especially with regard to transport and traffic management but these laudable intentions are limited by the MMDAs enabling law which we can but interpret and petitioner must be reminded that its efforts in this respect must be authorized by a valid law or ordinance or regulation arising from a legitimate source DISMISSED

6 Ortigas amp Co Ltd vs Court of Appeals GR No 126102 December 4 2000

FACTS petition seeks to reverse the decision of the Court of Appeals dated March 25 1996 in CA-GR SP No 39193 which nullified the writ of preliminary injunction issued by the Regional Trial Court of Pasig City Branch 261 in Civil Case No 64931 It also assails the resolution of the appellate court dated August 13 1996 denying petitioners motion for reconsideration

August 25 1976-- Ortigas sold to the Hermosos a parcel of land (Lot 1 Block 21 Psd-66759 with an area of 1508 square meters and covered by Transfer Certificate of Title No 0737) in Greenhills Subdivision The contract of sale provided that the lot will be used for single-family residential building only and this was annotated at the back of the title of the lot

1981-- the Metropolitan Commission enacted MMC (now MMDA) Ordinance No 81-01 reclassifying as a commercial zone the stretch of Ortigas Avenue from Roosevelt Street to Madison Street

June 8 1984-- private respondent Mathay III leased the lot from Hermoso and constructed a commercial building for Greenhills Autohaus Inc a car sales company

January 18 1995mdashpetitioner Ortigas filed a complaint against Hermoso with the RTC Pasig Branch 261 Docketed as Civil Case No 64931 seeking thethe demolition of the said commercial structure for having violated the terms and conditions of the Deed of Sale Complainant prayed for the issuance of a temporary restraining order and a writ of preliminary injunction to prohibit petitioner from constructing the commercial building andor engaging in commercial activity on the lot The complaint was later amended to implead Ismael G Mathay III and JP Hermoso Realty Corp which has a ten percent (10) interest in the lot

June 16 1995--- court issued the writ of preliminary injunction

June 29 1995-- Mathay III moved to set aside the injunctive order but the trial court denied the motion He filed with the CA a special civil action for certiorari docketed as CA-GR SP No 39193 ascribing to the trial court grave abuse of discretion in issuing the writ of preliminary injunction He claimed that MMC Ordinance No 81-01 classified the area where the lot was located as commercial area and said ordinance must be read into the August 25 1976 Deed of Sale as a concrete exercise of police power

March 25 1996mdashCA granted the petition and the assailed orders are nullified

Petitioner Otigas in this present petition asserts that Mathay III lacks legal capacity to question the validity of conditions of the deed of sale and he is barred by estoppel or waiver to raise the same question like his principals the owners

Petitioner contends that the appellate court erred in limiting its decision to the cited zoning ordinance It avers that a contractual right is not automatically discarded once a claim is made that it conflicts with police power Petitioner submits that the restrictive clauses in the questioned contract is not in conflict with the zoning ordinance For one according to petitioner the MMC Ordinance No 81-01 did not prohibit the construction of residential buildings Petitioner argues that even with the zoning ordinance the seller and buyer of the re-classified lot can voluntarily agree to an exclusive residential use thereof Hence petitioner concludes that the Court of Appeals erred in holding that the condition imposing exclusive residential use was effectively nullified by the zoning ordinance

In its turn private respondent argues that the appellate court correctly ruled that the trial court had acted with grave abuse of discretion in refusing to subject the contract to the MMC Ordinance No 81-01 He avers that the appellate court properly held the police power superior to the non-impairment of contract clause in the Constitution He concludes that the appellate court did not err in dissolving the writ of preliminary injunction issued by the trial court in excess of its jurisdiction

ISSUE whether the Court of Appeals erred in holding that the trial court committed grave abuse of discretion when it refused to apply MMC Ordinance No 81-01 to Civil Case No 64931

HELD NO The trial court observed that the contract of sale was entered into in August 1976 while the zoning ordinance was enacted only in March 1981 The trial court reasoned that since private respondent had failed to show that MMC Ordinance No 81-01 had retroactive effect said ordinance should be given prospective application Only laws existing at the time of the execution of a contract are applicable thereto and not later statutes unless the latter are specifically intended to have retroactive effect A later law which enlarges abridges or in any manner changes the intent of the parties to the contract necessarily impairs the contract itself and cannot be given retroactive effect without violating the constitutional prohibition against impairment of contracts

But a law enacted in the exercise of police power to regulate or govern certain activities or transactions could be given retroactive effect and may reasonably impair vested rights or contracts Police power legislation is applicable not only to future contracts but equally to those already in existence Non-impairment of contracts or vested rights clauses will have to yield to the superior and legitimate exercise by the State of police power to promote the health morals peace education good order safety and general welfare of the people Moreover statutes in exercise of valid police power must be read into every contract

The trial courts reliance on the Co vs IAC is misplaced In Co the disputed area was agricultural and Ordinance No 81-01 did not specifically provide that it shall have retroactive effect so as to discontinue all rights previously acquired over lands located within the zone which are neither residential nor light industrial in nature and stated with respect to agricultural areas covered that the zoning ordinance should be given prospective operation only The area in this case involves not agricultural but urban residential land Ordinance No 81-01 retroactively affected the operation of the zoning ordinance in Greenhills by reclassifying certain locations therein as commercial

The contractual stipulations annotated on the Torrens Title on which Ortigas relies must yield to the ordinance When that stretch of Ortigas Avenue from Roosevelt Street to Madison Street was reclassified as a commercial zone by the Metropolitan Manila Commission in March 1981 the restrictions in the contract of sale between Ortigas and Hermoso limiting all construction on the disputed lot to single-family residential buildings were deemed extinguished by the retroactive operation of the zoning ordinance and could no longer be enforced While our legal system upholds the sanctity of contract so that a contract is deemed law between the contracting parties nonetheless stipulations in a contract cannot contravene law morals good customs public order or public policy Otherwise such stipulations would be deemed null and void Respondent court correctly found that the trial court committed in this case a grave abuse of discretion amounting to want of or excess of jurisdiction in refusing to treat Ordinance No 81-01 as applicable to Civil Case No 64931 In resolving matters in litigation judges are not only duty-bound to ascertain the facts and the applicable laws they are also bound by their oath of office to apply the applicable law

A real party in interest is defined as the party who stands to be benefited or injured by the judgment or the party entitled to the avails of the suit Interest within the meaning of the rule means material interest an interest in issue and to be affected by the decree as distinguished from mere interest in the question involved or a mere incidental interest By real interest is meant a present substantial interest as distinguished from a mere expectancy or a future contingent subordinate or consequential interest

13

private respondent in this case is clearly a real party in interest It is not disputed that he is in possession of the lot pursuant to a valid lease He is a possessor in the concept of a holder of the thing under Article 525 of the Civil Code He was impleaded as a defendant in the amended complaint in Civil Case No 64931 Further what petitioner seeks to enjoin is the building by respondent of a commercial structure on the lot Clearly it is private respondents acts which are in issue and his interest in said issue cannot be a mere incidental interest In its amended complaint petitioner prayed for among others judgment ordering the demolition of all improvements illegally built on the lot in question These show that it is petitioner Mathay III doing business as Greenhills Autohaus Inc and not only the Hermosos who will be adversely affected by the courts decree DENIED

7 Philippine Press Institute vs COMELEC GR No 119694 May 22 1995

FACTS Petition for Certiorari and Prohibition with prayer for the issuance of a Temporary restraining order Philippine Press Institute Inc (PPI) is before this Court assailing the constitutional validity of Resolution No 2772 issued by respondent Commission on Elections (Comelec) and its corresponding Comelec directive dated 22 March 1995 through a Petition for Certiorari and Prohibition Petitioner PPI is a non-stock non-profit organization of newspaper and magazine publishers

On 2 March 1995 Comelec promulgated Resolution No 2772 which reads in part xxx xxx xxx

Sec 2 Comelec Space mdash The Commission shall procure free print space of not less than one half (12) page in at least one newspaper of general circulation in every province or city for use as Comelec Space from March 6 1995 in the case of candidates for senators and from March 21 1995 until May 12 1995 In the absence of said newspaper Comelec Space shall be obtained from any magazine or periodical of said province or city

Sec 3 Uses of Comelec Space mdash Comelec Space shall be allocated by the Commission free of charge among all candidates within the area in which the newspaper magazine or periodical is circulated to enable the candidates to make known their qualifications their stand on public issues and their platforms and programs of government

Comelec Space shall also be used by the Commission for dissemination of vital election information

Sec 4 Allocation of Comelec Space mdash (a) Comelec Space shall be available to all candidates during the periods stated in Section 2 hereof Its allocation shall be equal and impartial among all candidates for the same office All candidates concerned shall be furnished a copy of the allocation of Comelec Space for their information guidance and compliance

(b) Any candidate desiring to avail himself of Comelec Space from newspapers or publications based in the Metropolitan Manila Area shall submit an application therefor in writing to the Committee on Mass Media of the Commission Any candidate desiring to avail himself of Comelec Space in newspapers or publications based in the provinces shall submit his application therefor in writing to the Provincial Election Supervisor concerned Applications for availment of Comelec Space may be filed at any time from the date of effectivity of this Resolution

(c) The Committee on Mass Media and the Provincial Election Supervisors shall allocate available Comelec Space among the candidates concerned by lottery of which said candidates shall be notified in advance in writing to be present personally or by representative to witness the lottery at the date time and place specified in the notice Any party objecting to the result of the lottery may appeal to the Commission

(d) The candidates concerned shall be notified by the Committee on Mass Media or the Provincial Election Supervisor as the case may be sufficiently in advance and in writing of the date of issue and the newspaper or publication allocated to him and the time within which he must submit the written material for publication in the Comelec Spacexxx xxx xxx

Sec 8 Undue Reference to CandidatesPolitical Parties in Newspapers mdash No newspaper or publication shall allow to be printed or published in the news opinion features or other sections of the newspaper or publication accounts or comments which manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or including therein said candidate or political party However unless the facts and circumstances clearly indicate otherwise the Commission will respect the determination by the publisher andor editors of the newspapers or publication that the accounts or views published are significant newsworthy and of public interest (Emphasis supplied)

22 March 1995-- Comelec sent directives to thePhilippine Star the Malaya and the Philippine Times Journal all members of PPI These letters read as follows

This is to advise you that pursuant to Resolution No 2772 of the Commission on Elections you are directed to provide free print space of not less than one half (frac12) page for use as Comelec Space or similar to the print support which you have extended during the May 11 1992 synchronized elections which was 2 full pages for each political party fielding senatorial candidates from March 6 1995 to May 6 1995 to make known to their qualifications their stand on public issues and their platforms and programs of government

We shall be informing the political parties and candidates to submit directly to you their pictures biographical data stand on key public issues and platforms of government either as raw data or in the form of positives or camera-ready materials

Please be reminded that the political partiescandidates may be accommodated in your publications any day upon receipt of their materials until May 6 1995 which is the day for campaigning We trust you to extend your full support and cooperation in this regard

PPI asks to declare Comelec Resolution No 2772 unconstitutional and void on the ground that it violates the prohibition imposed by the Constitution upon the government and any of its agencies against the taking of private property for public use without just compensation Petitioner also contends that the 22 March 1995 letter directives of Comelec requiring publishers to give free Comelec Space and at the same time process raw data to make it camera-ready constitute impositions of involuntary servitude contrary to the provisions of Section 18 (2) Article III of the 1987 Constitution Finally PPI argues that Section 8 of Comelec Resolution No 2772 is violative of the constitutionally guaranteed freedom of speech of the press and of expression

20 April 1995-- this Court issued a Temporary Restraining Order enjoining Comelec from enforcing and implementing Section 2 of Resolution No 2772 as well as the Comelec directives addressed to various print media enterprises all dated 22 March 1995 The Court also required the respondent to file a Comment on the Petition

The Office of the SolGen filed its Comment on behalf of respondent Comelec alleging that Comelec Resolution No 2772 does not impose upon the publishers any obligation to provide free print space in the newspapers as it does not provide any criminal or administrative sanction for non-compliance with that Resolution The questioned Resolution merely established guidelines to be followed in connection with the procurement of Comelec space the procedure for and mode of allocation of such space to candidates and the conditions or requirements for the candidates utilization of the Comelec space procured Even if the questioned Resolution and its implementing letter directives are viewed as mandatory the same would nevertheless be valid as an exercise of the police power of the State Section 8 of Resolution No 2772 is a permissible exercise of the power of supervisor or regulation of the Comelec over the communication and information operations of print media enterprises during the election period to safeguard and ensure a fair impartial and credible election

28 April 1995-- Oral arguments Comelec thr ChairmanBernardo Pardo stated that Resolution No 2772 particularly Section 2 thereof and the 22 March 1995 letters dispatched to various members of petitioner PPI were not intended to compel those members to supply Comelec with free print space They were merely designed to solicit from the publishers the same free print space which many publishers had voluntarily given to Comelec during the election period relating to the 11 May 1992 elections the Comelec would that very afternoon meet and adopt an appropriate amending or clarifying resolution a certified true copy of which would forthwith be filed with the Court

14

On 5 May 1995-- the Court received from the SolGen a manifestation which attached a copy of Comelec resolution No 2772-A dated 4 May 1995 The operative portion of this Resolution follows with clarifications on Sections 2 and 8 of Res No 2772 as follows

1 Section 2 of Res No 2772 shall not be construed to mean as requiring publishers of the different mass media print publications to provide print space under pain of prosecution whether administrative civil or criminal there being no sanction or penalty for violation of said Section provided for either in said Resolution or in Section 90 of Batas Pambansa Blg 881 otherwise known as the Omnibus Election Code on the grant of Comelec Space

2 Section 8 of Res No 2772 shall not be construed to mean as constituting prior restraint on the part of the publishers with respect to the printing or publication of materials in the news opinion features or other sections of their respective publications or other accounts or comments it being clear from the last sentence of said Section 8 that the Commission shall unless the facts and circumstances clearly indicate otherwise respect the determination by the publishers andor editors of the newspapers or publications that the accounts or views published are significant newsworthy and of public interest

ISSUE

HELD Section 2 of Resolution No 2772 is not a model of clarity in expression Section 1 of Resolution No 2772-A did not try to redraft Section 2 accordingly Section 2 of resolution No 2772 persists in its original form Thus we must point out that as presently worded and in particular as interpreted and applied by the Comelec itself in its 22 March 1995 letter-directives to newspaper publishers Section 2 of Resolution No 2772 is clearly susceptible of the reading that petitioner PPI has given it A written communication officially directing a print media company tosupply free print space dispatched by government (here a constitutional) agency and signed by member of the Commission presumably legally authorized to do so is bound to produce a coercive effect upon the company so addressed That the agency may not be legally authorized to impose or cause the imposition of criminal or other sanctions for disregard of such direction only aggravates the constitutional difficulties inhering in the present situation

To compel print media companies to donate Comelec space of the dimensions specified in Section 2 of Resolution No 2772 (not less than one-half Page) amounts to taking of private personal property for public use or purposes Section 2 failed to specify the intended frequency of such compulsory donation only once during the period from 6 March 1995 (or 21 March 1995) until 12 May 1995 or everyday or once a week or has often as Comelec may direct during the same period the extent of the taking or deprivation is not insubstantial this is not a case of a de minimis temporary limitation or restraint upon the use of private property The monetary value of the compulsory donation measured by the advertising rates ordinarily charged by newspaper publishers whether in cities or in non-urban areas may be very substantial indeed

The taking of print space here sought to be effected may first be appraised under the rubric of expropriation of private personal property for public use The threshold requisites for a lawful taking of private property for public use need to be examined here one is the necessity for the taking another is the legal authority to effect the taking The element of necessity for the taking has not been shown by respondent Comelec It has not been suggested that the members of PPI are unwilling to sell print space at their normal rates to Comelec for election purposes Indeed the unwillingness or reluctance of Comelec to buy print space lies at the heart of the problem Similarly it has not been suggested let alone demonstrated that Comelec has been granted the power of imminent domain either by the Constitution or by the legislative authority A reasonable relationship between that power and the enforcement and administration of election laws by Comelec must be shown it is not casually to be assumed

Under Section 3 of Resolution No 2772 the free Comelec space sought by the respondent Commission would be used not only for informing the public about the identities qualifications and programs of government of candidates for elective office but also for dissemination of vital election information (including presumably circulars regulations notices directives etc issued by Comelec)

The taking of private property for public use is of course authorized by the Constitution but not without payment of just compensation (Article III Section 9) Section 2 of Resolution No 2772 does not however provide a constitutional basis

for compelling publishers against their will in the kind of factual context here present to provide free print space for Comelec purposes Section 2 does not constitute a valid exercise of the power of eminent domain

There was no effort (and apparently no inclination on the part of Comelec) to show that the police power mdash essentially a power of legislation mdash has been constitutionally delegated to respondent Commission And while private property may indeed be validly taken in the legitimate exercise of the police power of the state there was no attempt to show compliance in the instant case with the requisites of a lawful taking under the police power

Section 2 of Resolution No 2772 is a blunt and heavy instrument that purports without a showing of existence of a national emergency or other imperious public necessity indiscriminately and without regard to the individual business condition of particular newspapers or magazines located in different parts of the country to take private property of newspaper or magazine publishers No attempt was made to demonstrate that a real and palpable or urgent necessity for the taking of print space confronted the Comelec and that Section 2 of Resolution No 2772 was itself the only reasonable and calibrated response to such necessity available to Comelec Section 2 does not constitute a valid exercise of the police power of the State

In National Press Club v Commission on Elections-- Court sustained the constitutionality of Section 11 (b) of RA No 6646 known as the Electoral Reforms Law of 1987 which prohibits the sale or donation of print space and airtime for campaign or other political purposes except to the Comelec In doing so the Court carefully distinguished (a) paid political advertisements which are reached by the prohibition of Section 11 (b) from (b) the reporting of news commentaries and expressions of belief or opinion by reporters broadcasters editors commentators or columnists which fall outside the scope of Section 11 (b) and which are protected by the constitutional guarantees of freedom of speech and of the press Section 11 (b) as designed to cover only paid political advertisements of particular candidates It does not restrict either the reporting of or the expression of belief or opinion or comment upon the qualifications and programs and activities of any and all candidates for office

Section 2 of Resolution No 2772-A does not add substantially to the utility of Section 8 of Resolution No 2772 The distinction between paid political advertisements on the one hand and news reports commentaries and expressions of belief or opinion by reporters broadcasters editors etc on the other hand can realistically be given operative meaning only in actual cases or controversies on a case-to-case basis in terms of very specific sets of facts PPI has not claimed that it or any of its members has sustained actual or imminent injury by reason of Comelec action under Section 8 The Court considers that the precise constitutional issue here sought to be raised mdash whether or not Section 8 of Resolution No 2772 constitutes a permissible exercise of the Comelecs power under Article IX Section 4 of the Constitution to supervise or regulate the enjoyment or utilization of all franchise or permits for the operation of mdash media of communication or information mdash [for the purpose of ensuring] equal opportunity time and space and the right of reply including reasonable equal rates therefor for public-information campaigns and forums among candidates in connection with the objective of holding free orderly honest peaceful and credible elections mdash is not ripe for judicial review for lack of an actual case or controversy involving as the very lis mota thereof the constitutionality of Section 8 In fine

1 Section 2 of Resolution No 2772 in its present form and as interpreted by Comelec in its 22 March 1995 letter directives purports to require print media enterprises to donate free print space to Comelec As such Section 2 suffers from fatal constitutional vice and must be set aside and nullified

2 To the extent it pertains to Section 8 of Resolution No 2772 the Petition for Certiorari and Prohibition must be dismissed for lack of an actual justiciable case or controversy PETITION GRANTED RES AND DIRECTIVES SET ASIDE TRO MADE PERMANENT

8 PRC vs Arlene de Guzman GR No 144681 June 21 2004

FACTS Petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the Decision dated May 16 2000 of the Court of Appeals in CA-GR SP No 37283 which affirmed the judgment dated December 19 1994 of RTC Manila Branch 52 in Civil Case No 93-66530 allowing respondents to take their physicians oath and to register as duly licensed physicians Equally challenged is the Resolution promulgated on August 25 2000 of the Court of Appeals denying petitioners Motion for Reconsideration

15

February 1993-- respondents who are graduates of Fatima College of Medicine Valenzuela City Metro Manila passed the Physician Licensure Examination Petitioner Professional Regulation Commission (PRC) then released their names as successful examinees But the Board then observed that the grades of the 79 successful examinees from Fatima in the 2 most difficult subjects in the medical licensure exam Bio-Chem (11 scored 100 11 got 99) and OB-Gyne (10 got 100 21 scored 99) were unusually and exceptionally high Many of those who passed from Fatima got marks of 95 or better in both subjects and no one got a mark lower than 90 The unusually high ratings were true only for Fatima College examinees

June 7 1993-- the Board issued Resolution No 19 withholding the registration as physicians of all the examinees from Fatima PRC asked the NBI to investigate whether any anomaly or irregularity marred the February 1993 Physician Licensure Examination

June 10 1993-- requested Fr Bienvenido F Nebres SJ an expert mathematician and authority in statistics who conducted a statistical analysis of the results in Bio-Chem and Ob-Gyne of the said examination submitted his report He reported that a comparison of the scores in Bio-Chem and Ob-Gyne of the Fatima College examinees with those of examinees from De La Salle University and Perpetual Help College of Medicine showed that the scores of Fatima College examinees were not only incredibly high but unusually clustered close to each other He concluded that there must be some unusual reason creating the clustering of scores in the two subjects It must be a cause strong enough to eliminate the normal variations that one should expect from the examinees [of Fatima College] in terms of talent effort energy etc NBI also found that the questionable passing rate of Fatima examinees in the [1993] Physician Examination leads to the conclusion that the Fatima examinees gained early access to the test questions

July 5 1993-- respondents Arlene V De Guzman et al filed a special civil action for mandamus with prayer for preliminary mandatory injunction docketed as Civil Case No 93-66530 with the Regional Trial Court (RTC) of Manila Branch 52 Their petition was adopted by the other respondents as intervenors

July 21 1993-- the Board issued Resolution No 26 charging respondents with immorality dishonest conduct fraud and deceit in connection with the Bio-Chem and Ob-Gyne examinations It recommended that the test results of the Fatima examinees be nullified The case was docketed as Adm Case No 1687 by the PRC

July 28 1993-- the RTC issued an Order in Civil Case No 93-66530 granting the preliminary mandatory injunction sought by the respondents It ordered the petitioners to administer the physicians oath to Arlene V De Guzman et al and enter their names in the rolls of the PRC The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the mandatory injunctive writ docketed as CA-GR SP No 31701

October 21 1993-- CA decided CA-GR SP No 3170 granting the petition and nullifying the mandatory injuction issued by the lower courts against the petitioner board

November 22 1993-- during the pendency of the instant petition (GR No 112315 By respondent de Guzman et al which was denied later on May 23 1994) the pre-trial conference in Civil Case No 93-66530 was held Then the parties agreed to reduce the testimonies of their respective witnesses to sworn questions-and-answers This was without prejudice to cross-examination by the opposing counsel

December 13 1993-- petitioners counsel failed to appear at the trial in the mistaken belief that the trial was set for December 15 The trial court then ruled that petitioners waived their right to cross-examine the witnesses

January 27 1994-- counsel for petitioners filed a Manifestation and Motion stating the reasons for her non-appearance and praying that the cross-examination of the witnesses for the opposing parties be reset The trial court denied the motion for lack of notice to adverse counsel It also denied the Motion for Reconsideration that followed on the ground that adverse counsel was notified less than three (3) days prior to the hearing

April 4 1994-- lower court granted the respondents prayer for issuance of a restraining order

August 31 1994mdashCA decided the petitionerrsquos prayer (pinjunctionTRO)to annul the Orders of the trial court dated November 13 1993 February 28 1994 and April 4 1994 (restraining order) RTC-Manila is ordered to allow petitioners counsel to cross-examine the respondents witnesses to allow petitioners to present their evidence in due course of trial and thereafter to decide the case on the merits on the basis of the evidence of the parties

September 22 1994-- petitioners filed an Urgent Ex-Parte Manifestation and Motion praying for the partial reconsideration of the appellate courts decision in CA-GR SP No 34506 and for the outright dismissal of Civil Case No 93-66530 The petitioners asked for the suspension of the proceedings

September 23 1994-- the trial court granted the aforesaid motion cancelled the scheduled hearing dates and reset the proceedings to October 21 and 28 1994

October 25 1994-- CA denied the partial motion for reconsideration in CA-GR SP No 34506 Thus petitioners filed with the Supreme Court a petition for review docketed as GR No 117817 entitled Professional Regulation Commission et al v Court of Appeals et al

November 11 1994-- counsel for the petitioners failed to appear at the trial of Civil Case No 93-66530 Upon motion of the respondents herein the trial court ruled that herein petitioners waived their right to cross-examine the herein respondents Trial was reset to November 28 1994

November 25 1994-- petitioners counsel moved for the inhibition of the trial court judge for alleged partiality

November 28 1994-- the day the Motion to Inhibit was to be heard petitioners failed to appear Thus the trial court denied the Motion to Inhibit and declared Civil Case No 93-66530 deemed submitted for decision

December 19 1994-- the trial court handed down its judgment in Civil Case No 93-66530 ordering the respondents to allow the petitioners and intervenors to take the physicians oath and to register them as physicians without prejudice to any administrative disciplinary action which may be taken against any of the petitioners

petitioners filed with this Court a petition for review on certiorari docketed as GR No 118437 entitled Professional Regulation Commission v Hon David G Nitafan praying inter alia that (1) GR No 118437 be consolidated with GR No 117817 (2) the decision of the Court of Appeals dated August 31 1994 in CA-GR SP No 34506 be nullified for its failure to decree the dismissal of Civil Case No 93-66530 and in the alternative to set aside the decision of the trial court in Civil Case No 93-66530 order the trial court judge to inhibit himself and Civil Case No 93-66530 be re-raffled to another branch

December 26 1994-- the petitioners herein filed their Notice of Appeal 11 in Civil Case No 93-66530 thereby elevating the case to the Court of Appeals where it was docketed as CA-GR SP No 37283

June 7 1995-- R No 118437 was consolidated with GR No 117817

July 1 1997-- the Board cancelled the respondentsrsquo examination papers in the Physician Licensure Examinations given in February 1993 and further debars them from taking any licensure examination for a period of 1 year from the date of the promulgation of this decision They may if they so desire apply for the scheduled examinations for physicians after the lapse of the period imposed by the BOARD

July 9 1998-- GR No 117817 is DISMISSED for being moot The petition in GR No 118437 is likewise DISMISSED on the ground that there is a pending appeal before the Court of Appeals

May 16 2000-- finding no reversible error in the decision appealed from CA hereby affirmed CA-GR SP No 37283 and DISMISS the instant appeal the appellate court ratiocinated that the respondents complied with all the statutory

13

private respondent in this case is clearly a real party in interest It is not disputed that he is in possession of the lot pursuant to a valid lease He is a possessor in the concept of a holder of the thing under Article 525 of the Civil Code He was impleaded as a defendant in the amended complaint in Civil Case No 64931 Further what petitioner seeks to enjoin is the building by respondent of a commercial structure on the lot Clearly it is private respondents acts which are in issue and his interest in said issue cannot be a mere incidental interest In its amended complaint petitioner prayed for among others judgment ordering the demolition of all improvements illegally built on the lot in question These show that it is petitioner Mathay III doing business as Greenhills Autohaus Inc and not only the Hermosos who will be adversely affected by the courts decree DENIED

7 Philippine Press Institute vs COMELEC GR No 119694 May 22 1995

FACTS Petition for Certiorari and Prohibition with prayer for the issuance of a Temporary restraining order Philippine Press Institute Inc (PPI) is before this Court assailing the constitutional validity of Resolution No 2772 issued by respondent Commission on Elections (Comelec) and its corresponding Comelec directive dated 22 March 1995 through a Petition for Certiorari and Prohibition Petitioner PPI is a non-stock non-profit organization of newspaper and magazine publishers

On 2 March 1995 Comelec promulgated Resolution No 2772 which reads in part xxx xxx xxx

Sec 2 Comelec Space mdash The Commission shall procure free print space of not less than one half (12) page in at least one newspaper of general circulation in every province or city for use as Comelec Space from March 6 1995 in the case of candidates for senators and from March 21 1995 until May 12 1995 In the absence of said newspaper Comelec Space shall be obtained from any magazine or periodical of said province or city

Sec 3 Uses of Comelec Space mdash Comelec Space shall be allocated by the Commission free of charge among all candidates within the area in which the newspaper magazine or periodical is circulated to enable the candidates to make known their qualifications their stand on public issues and their platforms and programs of government

Comelec Space shall also be used by the Commission for dissemination of vital election information

Sec 4 Allocation of Comelec Space mdash (a) Comelec Space shall be available to all candidates during the periods stated in Section 2 hereof Its allocation shall be equal and impartial among all candidates for the same office All candidates concerned shall be furnished a copy of the allocation of Comelec Space for their information guidance and compliance

(b) Any candidate desiring to avail himself of Comelec Space from newspapers or publications based in the Metropolitan Manila Area shall submit an application therefor in writing to the Committee on Mass Media of the Commission Any candidate desiring to avail himself of Comelec Space in newspapers or publications based in the provinces shall submit his application therefor in writing to the Provincial Election Supervisor concerned Applications for availment of Comelec Space may be filed at any time from the date of effectivity of this Resolution

(c) The Committee on Mass Media and the Provincial Election Supervisors shall allocate available Comelec Space among the candidates concerned by lottery of which said candidates shall be notified in advance in writing to be present personally or by representative to witness the lottery at the date time and place specified in the notice Any party objecting to the result of the lottery may appeal to the Commission

(d) The candidates concerned shall be notified by the Committee on Mass Media or the Provincial Election Supervisor as the case may be sufficiently in advance and in writing of the date of issue and the newspaper or publication allocated to him and the time within which he must submit the written material for publication in the Comelec Spacexxx xxx xxx

Sec 8 Undue Reference to CandidatesPolitical Parties in Newspapers mdash No newspaper or publication shall allow to be printed or published in the news opinion features or other sections of the newspaper or publication accounts or comments which manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or including therein said candidate or political party However unless the facts and circumstances clearly indicate otherwise the Commission will respect the determination by the publisher andor editors of the newspapers or publication that the accounts or views published are significant newsworthy and of public interest (Emphasis supplied)

22 March 1995-- Comelec sent directives to thePhilippine Star the Malaya and the Philippine Times Journal all members of PPI These letters read as follows

This is to advise you that pursuant to Resolution No 2772 of the Commission on Elections you are directed to provide free print space of not less than one half (frac12) page for use as Comelec Space or similar to the print support which you have extended during the May 11 1992 synchronized elections which was 2 full pages for each political party fielding senatorial candidates from March 6 1995 to May 6 1995 to make known to their qualifications their stand on public issues and their platforms and programs of government

We shall be informing the political parties and candidates to submit directly to you their pictures biographical data stand on key public issues and platforms of government either as raw data or in the form of positives or camera-ready materials

Please be reminded that the political partiescandidates may be accommodated in your publications any day upon receipt of their materials until May 6 1995 which is the day for campaigning We trust you to extend your full support and cooperation in this regard

PPI asks to declare Comelec Resolution No 2772 unconstitutional and void on the ground that it violates the prohibition imposed by the Constitution upon the government and any of its agencies against the taking of private property for public use without just compensation Petitioner also contends that the 22 March 1995 letter directives of Comelec requiring publishers to give free Comelec Space and at the same time process raw data to make it camera-ready constitute impositions of involuntary servitude contrary to the provisions of Section 18 (2) Article III of the 1987 Constitution Finally PPI argues that Section 8 of Comelec Resolution No 2772 is violative of the constitutionally guaranteed freedom of speech of the press and of expression

20 April 1995-- this Court issued a Temporary Restraining Order enjoining Comelec from enforcing and implementing Section 2 of Resolution No 2772 as well as the Comelec directives addressed to various print media enterprises all dated 22 March 1995 The Court also required the respondent to file a Comment on the Petition

The Office of the SolGen filed its Comment on behalf of respondent Comelec alleging that Comelec Resolution No 2772 does not impose upon the publishers any obligation to provide free print space in the newspapers as it does not provide any criminal or administrative sanction for non-compliance with that Resolution The questioned Resolution merely established guidelines to be followed in connection with the procurement of Comelec space the procedure for and mode of allocation of such space to candidates and the conditions or requirements for the candidates utilization of the Comelec space procured Even if the questioned Resolution and its implementing letter directives are viewed as mandatory the same would nevertheless be valid as an exercise of the police power of the State Section 8 of Resolution No 2772 is a permissible exercise of the power of supervisor or regulation of the Comelec over the communication and information operations of print media enterprises during the election period to safeguard and ensure a fair impartial and credible election

28 April 1995-- Oral arguments Comelec thr ChairmanBernardo Pardo stated that Resolution No 2772 particularly Section 2 thereof and the 22 March 1995 letters dispatched to various members of petitioner PPI were not intended to compel those members to supply Comelec with free print space They were merely designed to solicit from the publishers the same free print space which many publishers had voluntarily given to Comelec during the election period relating to the 11 May 1992 elections the Comelec would that very afternoon meet and adopt an appropriate amending or clarifying resolution a certified true copy of which would forthwith be filed with the Court

14

On 5 May 1995-- the Court received from the SolGen a manifestation which attached a copy of Comelec resolution No 2772-A dated 4 May 1995 The operative portion of this Resolution follows with clarifications on Sections 2 and 8 of Res No 2772 as follows

1 Section 2 of Res No 2772 shall not be construed to mean as requiring publishers of the different mass media print publications to provide print space under pain of prosecution whether administrative civil or criminal there being no sanction or penalty for violation of said Section provided for either in said Resolution or in Section 90 of Batas Pambansa Blg 881 otherwise known as the Omnibus Election Code on the grant of Comelec Space

2 Section 8 of Res No 2772 shall not be construed to mean as constituting prior restraint on the part of the publishers with respect to the printing or publication of materials in the news opinion features or other sections of their respective publications or other accounts or comments it being clear from the last sentence of said Section 8 that the Commission shall unless the facts and circumstances clearly indicate otherwise respect the determination by the publishers andor editors of the newspapers or publications that the accounts or views published are significant newsworthy and of public interest

ISSUE

HELD Section 2 of Resolution No 2772 is not a model of clarity in expression Section 1 of Resolution No 2772-A did not try to redraft Section 2 accordingly Section 2 of resolution No 2772 persists in its original form Thus we must point out that as presently worded and in particular as interpreted and applied by the Comelec itself in its 22 March 1995 letter-directives to newspaper publishers Section 2 of Resolution No 2772 is clearly susceptible of the reading that petitioner PPI has given it A written communication officially directing a print media company tosupply free print space dispatched by government (here a constitutional) agency and signed by member of the Commission presumably legally authorized to do so is bound to produce a coercive effect upon the company so addressed That the agency may not be legally authorized to impose or cause the imposition of criminal or other sanctions for disregard of such direction only aggravates the constitutional difficulties inhering in the present situation

To compel print media companies to donate Comelec space of the dimensions specified in Section 2 of Resolution No 2772 (not less than one-half Page) amounts to taking of private personal property for public use or purposes Section 2 failed to specify the intended frequency of such compulsory donation only once during the period from 6 March 1995 (or 21 March 1995) until 12 May 1995 or everyday or once a week or has often as Comelec may direct during the same period the extent of the taking or deprivation is not insubstantial this is not a case of a de minimis temporary limitation or restraint upon the use of private property The monetary value of the compulsory donation measured by the advertising rates ordinarily charged by newspaper publishers whether in cities or in non-urban areas may be very substantial indeed

The taking of print space here sought to be effected may first be appraised under the rubric of expropriation of private personal property for public use The threshold requisites for a lawful taking of private property for public use need to be examined here one is the necessity for the taking another is the legal authority to effect the taking The element of necessity for the taking has not been shown by respondent Comelec It has not been suggested that the members of PPI are unwilling to sell print space at their normal rates to Comelec for election purposes Indeed the unwillingness or reluctance of Comelec to buy print space lies at the heart of the problem Similarly it has not been suggested let alone demonstrated that Comelec has been granted the power of imminent domain either by the Constitution or by the legislative authority A reasonable relationship between that power and the enforcement and administration of election laws by Comelec must be shown it is not casually to be assumed

Under Section 3 of Resolution No 2772 the free Comelec space sought by the respondent Commission would be used not only for informing the public about the identities qualifications and programs of government of candidates for elective office but also for dissemination of vital election information (including presumably circulars regulations notices directives etc issued by Comelec)

The taking of private property for public use is of course authorized by the Constitution but not without payment of just compensation (Article III Section 9) Section 2 of Resolution No 2772 does not however provide a constitutional basis

for compelling publishers against their will in the kind of factual context here present to provide free print space for Comelec purposes Section 2 does not constitute a valid exercise of the power of eminent domain

There was no effort (and apparently no inclination on the part of Comelec) to show that the police power mdash essentially a power of legislation mdash has been constitutionally delegated to respondent Commission And while private property may indeed be validly taken in the legitimate exercise of the police power of the state there was no attempt to show compliance in the instant case with the requisites of a lawful taking under the police power

Section 2 of Resolution No 2772 is a blunt and heavy instrument that purports without a showing of existence of a national emergency or other imperious public necessity indiscriminately and without regard to the individual business condition of particular newspapers or magazines located in different parts of the country to take private property of newspaper or magazine publishers No attempt was made to demonstrate that a real and palpable or urgent necessity for the taking of print space confronted the Comelec and that Section 2 of Resolution No 2772 was itself the only reasonable and calibrated response to such necessity available to Comelec Section 2 does not constitute a valid exercise of the police power of the State

In National Press Club v Commission on Elections-- Court sustained the constitutionality of Section 11 (b) of RA No 6646 known as the Electoral Reforms Law of 1987 which prohibits the sale or donation of print space and airtime for campaign or other political purposes except to the Comelec In doing so the Court carefully distinguished (a) paid political advertisements which are reached by the prohibition of Section 11 (b) from (b) the reporting of news commentaries and expressions of belief or opinion by reporters broadcasters editors commentators or columnists which fall outside the scope of Section 11 (b) and which are protected by the constitutional guarantees of freedom of speech and of the press Section 11 (b) as designed to cover only paid political advertisements of particular candidates It does not restrict either the reporting of or the expression of belief or opinion or comment upon the qualifications and programs and activities of any and all candidates for office

Section 2 of Resolution No 2772-A does not add substantially to the utility of Section 8 of Resolution No 2772 The distinction between paid political advertisements on the one hand and news reports commentaries and expressions of belief or opinion by reporters broadcasters editors etc on the other hand can realistically be given operative meaning only in actual cases or controversies on a case-to-case basis in terms of very specific sets of facts PPI has not claimed that it or any of its members has sustained actual or imminent injury by reason of Comelec action under Section 8 The Court considers that the precise constitutional issue here sought to be raised mdash whether or not Section 8 of Resolution No 2772 constitutes a permissible exercise of the Comelecs power under Article IX Section 4 of the Constitution to supervise or regulate the enjoyment or utilization of all franchise or permits for the operation of mdash media of communication or information mdash [for the purpose of ensuring] equal opportunity time and space and the right of reply including reasonable equal rates therefor for public-information campaigns and forums among candidates in connection with the objective of holding free orderly honest peaceful and credible elections mdash is not ripe for judicial review for lack of an actual case or controversy involving as the very lis mota thereof the constitutionality of Section 8 In fine

1 Section 2 of Resolution No 2772 in its present form and as interpreted by Comelec in its 22 March 1995 letter directives purports to require print media enterprises to donate free print space to Comelec As such Section 2 suffers from fatal constitutional vice and must be set aside and nullified

2 To the extent it pertains to Section 8 of Resolution No 2772 the Petition for Certiorari and Prohibition must be dismissed for lack of an actual justiciable case or controversy PETITION GRANTED RES AND DIRECTIVES SET ASIDE TRO MADE PERMANENT

8 PRC vs Arlene de Guzman GR No 144681 June 21 2004

FACTS Petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the Decision dated May 16 2000 of the Court of Appeals in CA-GR SP No 37283 which affirmed the judgment dated December 19 1994 of RTC Manila Branch 52 in Civil Case No 93-66530 allowing respondents to take their physicians oath and to register as duly licensed physicians Equally challenged is the Resolution promulgated on August 25 2000 of the Court of Appeals denying petitioners Motion for Reconsideration

15

February 1993-- respondents who are graduates of Fatima College of Medicine Valenzuela City Metro Manila passed the Physician Licensure Examination Petitioner Professional Regulation Commission (PRC) then released their names as successful examinees But the Board then observed that the grades of the 79 successful examinees from Fatima in the 2 most difficult subjects in the medical licensure exam Bio-Chem (11 scored 100 11 got 99) and OB-Gyne (10 got 100 21 scored 99) were unusually and exceptionally high Many of those who passed from Fatima got marks of 95 or better in both subjects and no one got a mark lower than 90 The unusually high ratings were true only for Fatima College examinees

June 7 1993-- the Board issued Resolution No 19 withholding the registration as physicians of all the examinees from Fatima PRC asked the NBI to investigate whether any anomaly or irregularity marred the February 1993 Physician Licensure Examination

June 10 1993-- requested Fr Bienvenido F Nebres SJ an expert mathematician and authority in statistics who conducted a statistical analysis of the results in Bio-Chem and Ob-Gyne of the said examination submitted his report He reported that a comparison of the scores in Bio-Chem and Ob-Gyne of the Fatima College examinees with those of examinees from De La Salle University and Perpetual Help College of Medicine showed that the scores of Fatima College examinees were not only incredibly high but unusually clustered close to each other He concluded that there must be some unusual reason creating the clustering of scores in the two subjects It must be a cause strong enough to eliminate the normal variations that one should expect from the examinees [of Fatima College] in terms of talent effort energy etc NBI also found that the questionable passing rate of Fatima examinees in the [1993] Physician Examination leads to the conclusion that the Fatima examinees gained early access to the test questions

July 5 1993-- respondents Arlene V De Guzman et al filed a special civil action for mandamus with prayer for preliminary mandatory injunction docketed as Civil Case No 93-66530 with the Regional Trial Court (RTC) of Manila Branch 52 Their petition was adopted by the other respondents as intervenors

July 21 1993-- the Board issued Resolution No 26 charging respondents with immorality dishonest conduct fraud and deceit in connection with the Bio-Chem and Ob-Gyne examinations It recommended that the test results of the Fatima examinees be nullified The case was docketed as Adm Case No 1687 by the PRC

July 28 1993-- the RTC issued an Order in Civil Case No 93-66530 granting the preliminary mandatory injunction sought by the respondents It ordered the petitioners to administer the physicians oath to Arlene V De Guzman et al and enter their names in the rolls of the PRC The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the mandatory injunctive writ docketed as CA-GR SP No 31701

October 21 1993-- CA decided CA-GR SP No 3170 granting the petition and nullifying the mandatory injuction issued by the lower courts against the petitioner board

November 22 1993-- during the pendency of the instant petition (GR No 112315 By respondent de Guzman et al which was denied later on May 23 1994) the pre-trial conference in Civil Case No 93-66530 was held Then the parties agreed to reduce the testimonies of their respective witnesses to sworn questions-and-answers This was without prejudice to cross-examination by the opposing counsel

December 13 1993-- petitioners counsel failed to appear at the trial in the mistaken belief that the trial was set for December 15 The trial court then ruled that petitioners waived their right to cross-examine the witnesses

January 27 1994-- counsel for petitioners filed a Manifestation and Motion stating the reasons for her non-appearance and praying that the cross-examination of the witnesses for the opposing parties be reset The trial court denied the motion for lack of notice to adverse counsel It also denied the Motion for Reconsideration that followed on the ground that adverse counsel was notified less than three (3) days prior to the hearing

April 4 1994-- lower court granted the respondents prayer for issuance of a restraining order

August 31 1994mdashCA decided the petitionerrsquos prayer (pinjunctionTRO)to annul the Orders of the trial court dated November 13 1993 February 28 1994 and April 4 1994 (restraining order) RTC-Manila is ordered to allow petitioners counsel to cross-examine the respondents witnesses to allow petitioners to present their evidence in due course of trial and thereafter to decide the case on the merits on the basis of the evidence of the parties

September 22 1994-- petitioners filed an Urgent Ex-Parte Manifestation and Motion praying for the partial reconsideration of the appellate courts decision in CA-GR SP No 34506 and for the outright dismissal of Civil Case No 93-66530 The petitioners asked for the suspension of the proceedings

September 23 1994-- the trial court granted the aforesaid motion cancelled the scheduled hearing dates and reset the proceedings to October 21 and 28 1994

October 25 1994-- CA denied the partial motion for reconsideration in CA-GR SP No 34506 Thus petitioners filed with the Supreme Court a petition for review docketed as GR No 117817 entitled Professional Regulation Commission et al v Court of Appeals et al

November 11 1994-- counsel for the petitioners failed to appear at the trial of Civil Case No 93-66530 Upon motion of the respondents herein the trial court ruled that herein petitioners waived their right to cross-examine the herein respondents Trial was reset to November 28 1994

November 25 1994-- petitioners counsel moved for the inhibition of the trial court judge for alleged partiality

November 28 1994-- the day the Motion to Inhibit was to be heard petitioners failed to appear Thus the trial court denied the Motion to Inhibit and declared Civil Case No 93-66530 deemed submitted for decision

December 19 1994-- the trial court handed down its judgment in Civil Case No 93-66530 ordering the respondents to allow the petitioners and intervenors to take the physicians oath and to register them as physicians without prejudice to any administrative disciplinary action which may be taken against any of the petitioners

petitioners filed with this Court a petition for review on certiorari docketed as GR No 118437 entitled Professional Regulation Commission v Hon David G Nitafan praying inter alia that (1) GR No 118437 be consolidated with GR No 117817 (2) the decision of the Court of Appeals dated August 31 1994 in CA-GR SP No 34506 be nullified for its failure to decree the dismissal of Civil Case No 93-66530 and in the alternative to set aside the decision of the trial court in Civil Case No 93-66530 order the trial court judge to inhibit himself and Civil Case No 93-66530 be re-raffled to another branch

December 26 1994-- the petitioners herein filed their Notice of Appeal 11 in Civil Case No 93-66530 thereby elevating the case to the Court of Appeals where it was docketed as CA-GR SP No 37283

June 7 1995-- R No 118437 was consolidated with GR No 117817

July 1 1997-- the Board cancelled the respondentsrsquo examination papers in the Physician Licensure Examinations given in February 1993 and further debars them from taking any licensure examination for a period of 1 year from the date of the promulgation of this decision They may if they so desire apply for the scheduled examinations for physicians after the lapse of the period imposed by the BOARD

July 9 1998-- GR No 117817 is DISMISSED for being moot The petition in GR No 118437 is likewise DISMISSED on the ground that there is a pending appeal before the Court of Appeals

May 16 2000-- finding no reversible error in the decision appealed from CA hereby affirmed CA-GR SP No 37283 and DISMISS the instant appeal the appellate court ratiocinated that the respondents complied with all the statutory

14

On 5 May 1995-- the Court received from the SolGen a manifestation which attached a copy of Comelec resolution No 2772-A dated 4 May 1995 The operative portion of this Resolution follows with clarifications on Sections 2 and 8 of Res No 2772 as follows

1 Section 2 of Res No 2772 shall not be construed to mean as requiring publishers of the different mass media print publications to provide print space under pain of prosecution whether administrative civil or criminal there being no sanction or penalty for violation of said Section provided for either in said Resolution or in Section 90 of Batas Pambansa Blg 881 otherwise known as the Omnibus Election Code on the grant of Comelec Space

2 Section 8 of Res No 2772 shall not be construed to mean as constituting prior restraint on the part of the publishers with respect to the printing or publication of materials in the news opinion features or other sections of their respective publications or other accounts or comments it being clear from the last sentence of said Section 8 that the Commission shall unless the facts and circumstances clearly indicate otherwise respect the determination by the publishers andor editors of the newspapers or publications that the accounts or views published are significant newsworthy and of public interest

ISSUE

HELD Section 2 of Resolution No 2772 is not a model of clarity in expression Section 1 of Resolution No 2772-A did not try to redraft Section 2 accordingly Section 2 of resolution No 2772 persists in its original form Thus we must point out that as presently worded and in particular as interpreted and applied by the Comelec itself in its 22 March 1995 letter-directives to newspaper publishers Section 2 of Resolution No 2772 is clearly susceptible of the reading that petitioner PPI has given it A written communication officially directing a print media company tosupply free print space dispatched by government (here a constitutional) agency and signed by member of the Commission presumably legally authorized to do so is bound to produce a coercive effect upon the company so addressed That the agency may not be legally authorized to impose or cause the imposition of criminal or other sanctions for disregard of such direction only aggravates the constitutional difficulties inhering in the present situation

To compel print media companies to donate Comelec space of the dimensions specified in Section 2 of Resolution No 2772 (not less than one-half Page) amounts to taking of private personal property for public use or purposes Section 2 failed to specify the intended frequency of such compulsory donation only once during the period from 6 March 1995 (or 21 March 1995) until 12 May 1995 or everyday or once a week or has often as Comelec may direct during the same period the extent of the taking or deprivation is not insubstantial this is not a case of a de minimis temporary limitation or restraint upon the use of private property The monetary value of the compulsory donation measured by the advertising rates ordinarily charged by newspaper publishers whether in cities or in non-urban areas may be very substantial indeed

The taking of print space here sought to be effected may first be appraised under the rubric of expropriation of private personal property for public use The threshold requisites for a lawful taking of private property for public use need to be examined here one is the necessity for the taking another is the legal authority to effect the taking The element of necessity for the taking has not been shown by respondent Comelec It has not been suggested that the members of PPI are unwilling to sell print space at their normal rates to Comelec for election purposes Indeed the unwillingness or reluctance of Comelec to buy print space lies at the heart of the problem Similarly it has not been suggested let alone demonstrated that Comelec has been granted the power of imminent domain either by the Constitution or by the legislative authority A reasonable relationship between that power and the enforcement and administration of election laws by Comelec must be shown it is not casually to be assumed

Under Section 3 of Resolution No 2772 the free Comelec space sought by the respondent Commission would be used not only for informing the public about the identities qualifications and programs of government of candidates for elective office but also for dissemination of vital election information (including presumably circulars regulations notices directives etc issued by Comelec)

The taking of private property for public use is of course authorized by the Constitution but not without payment of just compensation (Article III Section 9) Section 2 of Resolution No 2772 does not however provide a constitutional basis

for compelling publishers against their will in the kind of factual context here present to provide free print space for Comelec purposes Section 2 does not constitute a valid exercise of the power of eminent domain

There was no effort (and apparently no inclination on the part of Comelec) to show that the police power mdash essentially a power of legislation mdash has been constitutionally delegated to respondent Commission And while private property may indeed be validly taken in the legitimate exercise of the police power of the state there was no attempt to show compliance in the instant case with the requisites of a lawful taking under the police power

Section 2 of Resolution No 2772 is a blunt and heavy instrument that purports without a showing of existence of a national emergency or other imperious public necessity indiscriminately and without regard to the individual business condition of particular newspapers or magazines located in different parts of the country to take private property of newspaper or magazine publishers No attempt was made to demonstrate that a real and palpable or urgent necessity for the taking of print space confronted the Comelec and that Section 2 of Resolution No 2772 was itself the only reasonable and calibrated response to such necessity available to Comelec Section 2 does not constitute a valid exercise of the police power of the State

In National Press Club v Commission on Elections-- Court sustained the constitutionality of Section 11 (b) of RA No 6646 known as the Electoral Reforms Law of 1987 which prohibits the sale or donation of print space and airtime for campaign or other political purposes except to the Comelec In doing so the Court carefully distinguished (a) paid political advertisements which are reached by the prohibition of Section 11 (b) from (b) the reporting of news commentaries and expressions of belief or opinion by reporters broadcasters editors commentators or columnists which fall outside the scope of Section 11 (b) and which are protected by the constitutional guarantees of freedom of speech and of the press Section 11 (b) as designed to cover only paid political advertisements of particular candidates It does not restrict either the reporting of or the expression of belief or opinion or comment upon the qualifications and programs and activities of any and all candidates for office

Section 2 of Resolution No 2772-A does not add substantially to the utility of Section 8 of Resolution No 2772 The distinction between paid political advertisements on the one hand and news reports commentaries and expressions of belief or opinion by reporters broadcasters editors etc on the other hand can realistically be given operative meaning only in actual cases or controversies on a case-to-case basis in terms of very specific sets of facts PPI has not claimed that it or any of its members has sustained actual or imminent injury by reason of Comelec action under Section 8 The Court considers that the precise constitutional issue here sought to be raised mdash whether or not Section 8 of Resolution No 2772 constitutes a permissible exercise of the Comelecs power under Article IX Section 4 of the Constitution to supervise or regulate the enjoyment or utilization of all franchise or permits for the operation of mdash media of communication or information mdash [for the purpose of ensuring] equal opportunity time and space and the right of reply including reasonable equal rates therefor for public-information campaigns and forums among candidates in connection with the objective of holding free orderly honest peaceful and credible elections mdash is not ripe for judicial review for lack of an actual case or controversy involving as the very lis mota thereof the constitutionality of Section 8 In fine

1 Section 2 of Resolution No 2772 in its present form and as interpreted by Comelec in its 22 March 1995 letter directives purports to require print media enterprises to donate free print space to Comelec As such Section 2 suffers from fatal constitutional vice and must be set aside and nullified

2 To the extent it pertains to Section 8 of Resolution No 2772 the Petition for Certiorari and Prohibition must be dismissed for lack of an actual justiciable case or controversy PETITION GRANTED RES AND DIRECTIVES SET ASIDE TRO MADE PERMANENT

8 PRC vs Arlene de Guzman GR No 144681 June 21 2004

FACTS Petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the Decision dated May 16 2000 of the Court of Appeals in CA-GR SP No 37283 which affirmed the judgment dated December 19 1994 of RTC Manila Branch 52 in Civil Case No 93-66530 allowing respondents to take their physicians oath and to register as duly licensed physicians Equally challenged is the Resolution promulgated on August 25 2000 of the Court of Appeals denying petitioners Motion for Reconsideration

15

February 1993-- respondents who are graduates of Fatima College of Medicine Valenzuela City Metro Manila passed the Physician Licensure Examination Petitioner Professional Regulation Commission (PRC) then released their names as successful examinees But the Board then observed that the grades of the 79 successful examinees from Fatima in the 2 most difficult subjects in the medical licensure exam Bio-Chem (11 scored 100 11 got 99) and OB-Gyne (10 got 100 21 scored 99) were unusually and exceptionally high Many of those who passed from Fatima got marks of 95 or better in both subjects and no one got a mark lower than 90 The unusually high ratings were true only for Fatima College examinees

June 7 1993-- the Board issued Resolution No 19 withholding the registration as physicians of all the examinees from Fatima PRC asked the NBI to investigate whether any anomaly or irregularity marred the February 1993 Physician Licensure Examination

June 10 1993-- requested Fr Bienvenido F Nebres SJ an expert mathematician and authority in statistics who conducted a statistical analysis of the results in Bio-Chem and Ob-Gyne of the said examination submitted his report He reported that a comparison of the scores in Bio-Chem and Ob-Gyne of the Fatima College examinees with those of examinees from De La Salle University and Perpetual Help College of Medicine showed that the scores of Fatima College examinees were not only incredibly high but unusually clustered close to each other He concluded that there must be some unusual reason creating the clustering of scores in the two subjects It must be a cause strong enough to eliminate the normal variations that one should expect from the examinees [of Fatima College] in terms of talent effort energy etc NBI also found that the questionable passing rate of Fatima examinees in the [1993] Physician Examination leads to the conclusion that the Fatima examinees gained early access to the test questions

July 5 1993-- respondents Arlene V De Guzman et al filed a special civil action for mandamus with prayer for preliminary mandatory injunction docketed as Civil Case No 93-66530 with the Regional Trial Court (RTC) of Manila Branch 52 Their petition was adopted by the other respondents as intervenors

July 21 1993-- the Board issued Resolution No 26 charging respondents with immorality dishonest conduct fraud and deceit in connection with the Bio-Chem and Ob-Gyne examinations It recommended that the test results of the Fatima examinees be nullified The case was docketed as Adm Case No 1687 by the PRC

July 28 1993-- the RTC issued an Order in Civil Case No 93-66530 granting the preliminary mandatory injunction sought by the respondents It ordered the petitioners to administer the physicians oath to Arlene V De Guzman et al and enter their names in the rolls of the PRC The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the mandatory injunctive writ docketed as CA-GR SP No 31701

October 21 1993-- CA decided CA-GR SP No 3170 granting the petition and nullifying the mandatory injuction issued by the lower courts against the petitioner board

November 22 1993-- during the pendency of the instant petition (GR No 112315 By respondent de Guzman et al which was denied later on May 23 1994) the pre-trial conference in Civil Case No 93-66530 was held Then the parties agreed to reduce the testimonies of their respective witnesses to sworn questions-and-answers This was without prejudice to cross-examination by the opposing counsel

December 13 1993-- petitioners counsel failed to appear at the trial in the mistaken belief that the trial was set for December 15 The trial court then ruled that petitioners waived their right to cross-examine the witnesses

January 27 1994-- counsel for petitioners filed a Manifestation and Motion stating the reasons for her non-appearance and praying that the cross-examination of the witnesses for the opposing parties be reset The trial court denied the motion for lack of notice to adverse counsel It also denied the Motion for Reconsideration that followed on the ground that adverse counsel was notified less than three (3) days prior to the hearing

April 4 1994-- lower court granted the respondents prayer for issuance of a restraining order

August 31 1994mdashCA decided the petitionerrsquos prayer (pinjunctionTRO)to annul the Orders of the trial court dated November 13 1993 February 28 1994 and April 4 1994 (restraining order) RTC-Manila is ordered to allow petitioners counsel to cross-examine the respondents witnesses to allow petitioners to present their evidence in due course of trial and thereafter to decide the case on the merits on the basis of the evidence of the parties

September 22 1994-- petitioners filed an Urgent Ex-Parte Manifestation and Motion praying for the partial reconsideration of the appellate courts decision in CA-GR SP No 34506 and for the outright dismissal of Civil Case No 93-66530 The petitioners asked for the suspension of the proceedings

September 23 1994-- the trial court granted the aforesaid motion cancelled the scheduled hearing dates and reset the proceedings to October 21 and 28 1994

October 25 1994-- CA denied the partial motion for reconsideration in CA-GR SP No 34506 Thus petitioners filed with the Supreme Court a petition for review docketed as GR No 117817 entitled Professional Regulation Commission et al v Court of Appeals et al

November 11 1994-- counsel for the petitioners failed to appear at the trial of Civil Case No 93-66530 Upon motion of the respondents herein the trial court ruled that herein petitioners waived their right to cross-examine the herein respondents Trial was reset to November 28 1994

November 25 1994-- petitioners counsel moved for the inhibition of the trial court judge for alleged partiality

November 28 1994-- the day the Motion to Inhibit was to be heard petitioners failed to appear Thus the trial court denied the Motion to Inhibit and declared Civil Case No 93-66530 deemed submitted for decision

December 19 1994-- the trial court handed down its judgment in Civil Case No 93-66530 ordering the respondents to allow the petitioners and intervenors to take the physicians oath and to register them as physicians without prejudice to any administrative disciplinary action which may be taken against any of the petitioners

petitioners filed with this Court a petition for review on certiorari docketed as GR No 118437 entitled Professional Regulation Commission v Hon David G Nitafan praying inter alia that (1) GR No 118437 be consolidated with GR No 117817 (2) the decision of the Court of Appeals dated August 31 1994 in CA-GR SP No 34506 be nullified for its failure to decree the dismissal of Civil Case No 93-66530 and in the alternative to set aside the decision of the trial court in Civil Case No 93-66530 order the trial court judge to inhibit himself and Civil Case No 93-66530 be re-raffled to another branch

December 26 1994-- the petitioners herein filed their Notice of Appeal 11 in Civil Case No 93-66530 thereby elevating the case to the Court of Appeals where it was docketed as CA-GR SP No 37283

June 7 1995-- R No 118437 was consolidated with GR No 117817

July 1 1997-- the Board cancelled the respondentsrsquo examination papers in the Physician Licensure Examinations given in February 1993 and further debars them from taking any licensure examination for a period of 1 year from the date of the promulgation of this decision They may if they so desire apply for the scheduled examinations for physicians after the lapse of the period imposed by the BOARD

July 9 1998-- GR No 117817 is DISMISSED for being moot The petition in GR No 118437 is likewise DISMISSED on the ground that there is a pending appeal before the Court of Appeals

May 16 2000-- finding no reversible error in the decision appealed from CA hereby affirmed CA-GR SP No 37283 and DISMISS the instant appeal the appellate court ratiocinated that the respondents complied with all the statutory

15

February 1993-- respondents who are graduates of Fatima College of Medicine Valenzuela City Metro Manila passed the Physician Licensure Examination Petitioner Professional Regulation Commission (PRC) then released their names as successful examinees But the Board then observed that the grades of the 79 successful examinees from Fatima in the 2 most difficult subjects in the medical licensure exam Bio-Chem (11 scored 100 11 got 99) and OB-Gyne (10 got 100 21 scored 99) were unusually and exceptionally high Many of those who passed from Fatima got marks of 95 or better in both subjects and no one got a mark lower than 90 The unusually high ratings were true only for Fatima College examinees

June 7 1993-- the Board issued Resolution No 19 withholding the registration as physicians of all the examinees from Fatima PRC asked the NBI to investigate whether any anomaly or irregularity marred the February 1993 Physician Licensure Examination

June 10 1993-- requested Fr Bienvenido F Nebres SJ an expert mathematician and authority in statistics who conducted a statistical analysis of the results in Bio-Chem and Ob-Gyne of the said examination submitted his report He reported that a comparison of the scores in Bio-Chem and Ob-Gyne of the Fatima College examinees with those of examinees from De La Salle University and Perpetual Help College of Medicine showed that the scores of Fatima College examinees were not only incredibly high but unusually clustered close to each other He concluded that there must be some unusual reason creating the clustering of scores in the two subjects It must be a cause strong enough to eliminate the normal variations that one should expect from the examinees [of Fatima College] in terms of talent effort energy etc NBI also found that the questionable passing rate of Fatima examinees in the [1993] Physician Examination leads to the conclusion that the Fatima examinees gained early access to the test questions

July 5 1993-- respondents Arlene V De Guzman et al filed a special civil action for mandamus with prayer for preliminary mandatory injunction docketed as Civil Case No 93-66530 with the Regional Trial Court (RTC) of Manila Branch 52 Their petition was adopted by the other respondents as intervenors

July 21 1993-- the Board issued Resolution No 26 charging respondents with immorality dishonest conduct fraud and deceit in connection with the Bio-Chem and Ob-Gyne examinations It recommended that the test results of the Fatima examinees be nullified The case was docketed as Adm Case No 1687 by the PRC

July 28 1993-- the RTC issued an Order in Civil Case No 93-66530 granting the preliminary mandatory injunction sought by the respondents It ordered the petitioners to administer the physicians oath to Arlene V De Guzman et al and enter their names in the rolls of the PRC The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the mandatory injunctive writ docketed as CA-GR SP No 31701

October 21 1993-- CA decided CA-GR SP No 3170 granting the petition and nullifying the mandatory injuction issued by the lower courts against the petitioner board

November 22 1993-- during the pendency of the instant petition (GR No 112315 By respondent de Guzman et al which was denied later on May 23 1994) the pre-trial conference in Civil Case No 93-66530 was held Then the parties agreed to reduce the testimonies of their respective witnesses to sworn questions-and-answers This was without prejudice to cross-examination by the opposing counsel

December 13 1993-- petitioners counsel failed to appear at the trial in the mistaken belief that the trial was set for December 15 The trial court then ruled that petitioners waived their right to cross-examine the witnesses

January 27 1994-- counsel for petitioners filed a Manifestation and Motion stating the reasons for her non-appearance and praying that the cross-examination of the witnesses for the opposing parties be reset The trial court denied the motion for lack of notice to adverse counsel It also denied the Motion for Reconsideration that followed on the ground that adverse counsel was notified less than three (3) days prior to the hearing

April 4 1994-- lower court granted the respondents prayer for issuance of a restraining order

August 31 1994mdashCA decided the petitionerrsquos prayer (pinjunctionTRO)to annul the Orders of the trial court dated November 13 1993 February 28 1994 and April 4 1994 (restraining order) RTC-Manila is ordered to allow petitioners counsel to cross-examine the respondents witnesses to allow petitioners to present their evidence in due course of trial and thereafter to decide the case on the merits on the basis of the evidence of the parties

September 22 1994-- petitioners filed an Urgent Ex-Parte Manifestation and Motion praying for the partial reconsideration of the appellate courts decision in CA-GR SP No 34506 and for the outright dismissal of Civil Case No 93-66530 The petitioners asked for the suspension of the proceedings

September 23 1994-- the trial court granted the aforesaid motion cancelled the scheduled hearing dates and reset the proceedings to October 21 and 28 1994

October 25 1994-- CA denied the partial motion for reconsideration in CA-GR SP No 34506 Thus petitioners filed with the Supreme Court a petition for review docketed as GR No 117817 entitled Professional Regulation Commission et al v Court of Appeals et al

November 11 1994-- counsel for the petitioners failed to appear at the trial of Civil Case No 93-66530 Upon motion of the respondents herein the trial court ruled that herein petitioners waived their right to cross-examine the herein respondents Trial was reset to November 28 1994

November 25 1994-- petitioners counsel moved for the inhibition of the trial court judge for alleged partiality

November 28 1994-- the day the Motion to Inhibit was to be heard petitioners failed to appear Thus the trial court denied the Motion to Inhibit and declared Civil Case No 93-66530 deemed submitted for decision

December 19 1994-- the trial court handed down its judgment in Civil Case No 93-66530 ordering the respondents to allow the petitioners and intervenors to take the physicians oath and to register them as physicians without prejudice to any administrative disciplinary action which may be taken against any of the petitioners

petitioners filed with this Court a petition for review on certiorari docketed as GR No 118437 entitled Professional Regulation Commission v Hon David G Nitafan praying inter alia that (1) GR No 118437 be consolidated with GR No 117817 (2) the decision of the Court of Appeals dated August 31 1994 in CA-GR SP No 34506 be nullified for its failure to decree the dismissal of Civil Case No 93-66530 and in the alternative to set aside the decision of the trial court in Civil Case No 93-66530 order the trial court judge to inhibit himself and Civil Case No 93-66530 be re-raffled to another branch

December 26 1994-- the petitioners herein filed their Notice of Appeal 11 in Civil Case No 93-66530 thereby elevating the case to the Court of Appeals where it was docketed as CA-GR SP No 37283

June 7 1995-- R No 118437 was consolidated with GR No 117817

July 1 1997-- the Board cancelled the respondentsrsquo examination papers in the Physician Licensure Examinations given in February 1993 and further debars them from taking any licensure examination for a period of 1 year from the date of the promulgation of this decision They may if they so desire apply for the scheduled examinations for physicians after the lapse of the period imposed by the BOARD

July 9 1998-- GR No 117817 is DISMISSED for being moot The petition in GR No 118437 is likewise DISMISSED on the ground that there is a pending appeal before the Court of Appeals

May 16 2000-- finding no reversible error in the decision appealed from CA hereby affirmed CA-GR SP No 37283 and DISMISS the instant appeal the appellate court ratiocinated that the respondents complied with all the statutory

16

requirements for admission into the licensure examination for physicians in February 1993 They all passed the said examination Having fulfilled the requirements of Republic Act No 2382 they should be allowed to take their oaths as physicians and be registered in the rolls of the PRC

The petitioners submit that a writ of mandamus will not lie in this case They point out that for a writ of mandamus to issue the applicant must have a well-defined clear and certain legal right to the thing demanded and it is the duty of the respondent to perform the act required Thus mandamus may be availed of only when the duty sought to be performed is a ministerial and not a discretionary one The petitioners argue that the appellate courts decision in CA-GR SP No 37283 upholding the decision of the trial court in Civil Case No 93-66530 overlooked its own pronouncement in CA-GR SP No 31701 The Court of Appeals held in CA-GR SP No 31701 that the issuance of a license to engage in the practice of medicine becomes discretionary on the PRC if there exists some doubt that the successful examinee has not fully met the requirements of the law The petitioners stress that this Courts Resolution dated May 24 1994 in GR No 112315 held that there was no showing that the Court of Appeals had committed any reversible error in rendering the questioned judgment in CA-GR SP No 31701 The petitioners point out that our Resolution in GR No 112315 has long become final and executory

Respondents counter that having passed the 1993 licensure examinations for physicians the petitioners have the obligation to administer to them the oath as physicians and to issue their certificates of registration as physicians pursuant to Section 20 of Rep Act No 2382 The Court of Appeals in CA-GR SP No 37283 found that respondents complied with all the requirements of Rep Act No 2382 Furthermore respondents were admitted by the Medical Board to the licensure examinations and had passed the same Hence pursuant to Section 20 of Rep Act No 2382 the petitioners had the obligation to administer their oaths as physicians and register them

ISSUE Did the Court of Appeals commit a reversible error of law in sustaining the judgment of the trial court that respondents are entitled to a writ of mandamus

Whether the Court of Appeals erred in concluding that petitioners should allow the respondents to take their oaths as physicians and register them steps which would enable respondents to practice the medical profession pursuant to Section 20 of the Medical Act of 1959

HELD Mandamus is a command issuing from a court of competent jurisdiction in the name of the state or the sovereign directed to some inferior court tribunal or board or to some corporation or person requiring the performance of a particular duty therein specified which duty results from the official station of the party to whom the writ is directed or from operation of law Section 3 of Rule 65 of the 1997 Rules of Civil Procedure outlines two situations when a writ of mandamus may issue when any tribunal corporation board officer or person unlawfully (1) neglects the performance of an act which the law specifically enjoins as a duty resulting from an office trust or station or (2) excludes another from the use and enjoyment of a right or office to which the other is entitled

1 On The Existence of a Duty of the Board of Medicine To Issue Certificates of Registration as Physicians under Rep Act No 2382

For mandamus to prosper there must be a showing that the officer board or official concerned has a clear legal duty not involving discretion There must be statutory authority for the performance of the act and the performance of the duty has been refused Section 20 of Rep Act No 2382 states that the petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents and register them as physicians Thus the petitioners shall sign and issue certificates of registration to those who have satisfactorily complied with the requirements of the Board But under the second paragraph of Section 22 the Board is vested with the power to conduct administrative investigations and disapprove applications for examination or registration pursuant to the objectives of Rep Act No 2382 as outlined in Section 1 hereof In this case after the investigation the Board filed before the PRC Adm Case No 1687 against the respondents to ascertain their moral and mental fitness to practice medicine as required by Section 9 of Rep Act No 2382 Until the moral and mental fitness of the respondents could be ascertained according to petitioners the Board has discretion to hold in abeyance the administration of the Hippocratic Oath and the issuance of the certificates to them The writ of mandamus does not lie to compel performance of an act which is not duly authorized

The respondents nevertheless argue that under Section 20 the Board shall not issue a certificate of registration only in the following instances (1) to any candidate who has been convicted by a court of competent jurisdiction of any criminal offense involving moral turpitude (2) or has been found guilty of immoral or dishonorable conduct after the investigation by the Board or (3) has been declared to be of unsound mind They aver that none of these circumstances are present in their case

Section 8 of RA No 2382 prescribes among others that a person who aspires to practice medicine in the Philippines must have satisfactorily passed the corresponding Board Examination Section 22 in turn provides that the oath may only be administered to physicians who qualified in the examinations The operative word here is satisfactorily defined as sufficient to meet a condition or obligation or capable of dispelling doubt or ignorance Gleaned from Board Resolution No 26 the licensing authority apparently did not find that the respondents satisfactorily passed the licensure examinations The Board instead sought to nullify the examination results obtained by the respondents

2 On the Right Of The Respondents To Be Registered As Physicians

The function of mandamus is not to establish a right but to enforce one that has been established by law If no legal right has been violated there can be no application of a legal remedy and the writ of mandamus is a legal remedy for a legal right There must be a well-defined clear and certain legal right to the thing demanded It is long established rule that a license to practice medicine is a privilege or franchise granted by the government

It is true that this Court has upheld the constitutional right of every citizen to select a profession or course of study subject to a fair reasonable and equitable admission and academic requirements But like all rights and freedoms guaranteed by the Charter their exercise may be so regulated pursuant to the police power of the State to safeguard health morals peace education order safety and general welfare of the people Thus persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers This regulation takes particular pertinence in the field of medicine to protect the public from the potentially deadly effects of incompetence and ignorance among those who would practice medicine

the power to regulate the exercise of a profession or pursuit of an occupation cannot be exercised by the State or its agents in an arbitrary despotic or oppressive manner A political body that regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in accordance with certain conditions Such conditions may not however require giving up ones constitutional rights as a condition to acquiring the license Under the view that the legislature cannot validly bestow an arbitrary power to grant or refuse a license on a public agency or officer courts will generally strike down license legislation that vests in public officials discretion to grant or refuse a license to carry on some ordinarily lawful business profession or activity without prescribing definite rules and conditions for the guidance of said officials in the exercise of their power

To be granted the privilege to practice medicine the applicant must show that he possesses all the qualifications and none of the disqualifications Furthermore it must appear that he has fully complied with all the conditions and requirements imposed by the law and the licensing authority Should doubt taint or mar the compliance as being less than satisfactory then the privilege will not issue For said privilege is distinguishable from a matter of right which may be demanded if denied Thus without a definite showing that the aforesaid requirements and conditions have been satisfactorily met the courts may not grant the writ of mandamus to secure said privilege without thwarting the legislative will

3 On the Ripeness of the Petition for Mandamus

There is no longer any justiciable controversy so that any declaration thereon would be of no practical use or value It should be recalled that in its decision of 19 December 1994 the trial court granted the writ of mandamus prayed for by private respondents which decision was received by petitioners on 20 December 1994 Three (3) days after or on 23 December 1994 petitioners filed the instant petition By then the remedy available to them was to appeal the decision to the Court of Appeals which they in fact did by filing a notice of appeal on 26 December 1994 The petitioners have shown no cogent reason for us to reverse the aforecited ruling Nor will their reliance upon the doctrine of the exhaustion of administrative remedies in the instant case advance their cause any

17

Section 26 of the Medical Act of 1959 provides for the administrative and judicial remedies that respondents herein can avail to question Resolution No 26 of the Board of Medicine namely (a) appeal the unfavorable judgment to the PRC (b) should the PRC ruling still be unfavorable to elevate the matter on appeal to the Office of the President and (c) should they still be unsatisfied to ask for a review of the case or to bring the case to court via a special civil action of certiorari Thus as a rule mandamus will not lie when administrative remedies are still available However the doctrine of exhaustion of administrative remedies does not apply where as in this case a pure question of law is raised On this issue no reversible error may thus be laid at the door of the appellate court in CA-GR SP No 37283 when it refused to dismiss Civil Case No 93-66530 inasmuch as the instant case is a petition for review of the appellate courts ruling in CA-GR SP No 37283 a decision which is inapplicable to the aforementioned respondents will similarly not apply to them

(1) the assailed decision dated May 16 2000 of the Court of Appeals in CA-GR SP No 37283 which affirmed the judgment dated December 19 1994 of the Regional Trial Court of Manila Branch 52 in Civil Case No 93-66530 ordering petitioners to administer the physicians oath to herein respondents as well as the resolution dated August 25 2000 of the appellate court denying the petitioners motion for reconsideration are REVERSED and SET ASIDE and (2) the writ of mandamus issued in Civil Case No 93-66530 and affirmed by the appellate court in CA-GR SP No 37283 is NULLIFIED AND SET ASIDE

9 JMM Promotion amp Management Inc vs Court of Appeals GR No 120095 August 5 1996

FACTS Assailed is the governments power to control deployment of female entertainers to Japan by requiring an Artist Record Book (ARB) as a precondition to the processing by the POEA of any contract for overseas employment

1991--former President Corazon C Aquino ordered a total ban (subsequently rescinded) against the deployment of performing artists to Japan and other foreign destinations The government through the Secretary of Labor and Employment subsequently issued Department Order No 28 creating the Entertainment Industry Advisory Council (EIAC) which was tasked with issuing guidelines on the training testing certification and deployment of performing artists abroad

January 6 1994-- Pursuant to the EIACs recommendations the Secretary of Labor issued Department Order No 3 establishing various procedures and requirements for screening performing artists under a new system of training testing certification and deployment of the former Successful examinees were to be issued an Artists Record Book (ARB) a necessary prerequisite to processing of any contract of employment by the POEA Upon request of the industry implementation of the process originally scheduled for April 1 1994 was moved to October 1 1994

The Department of Labor following the EIACs recommendation issued a series of orders fine-tuning and implementing the new system Prominent among these orders were the following issuances

1 Department Order No 3-A providing for additional guidelines on the training testing certification and deployment of performing artists

2 Department Order No 3-B pertaining to the Artist Record Book (ARB) requirement which could be processed only after the artist could show proof of academic and skills training and has passed the required tests

3 Department Order No 3-E providing the minimum salary a performing artist ought to receive (not less than US$60000 for those bound for Japan) and the authorized deductions therefrom

4 Department Order No 3-F providing for the guidelines on the issuance and use of the ARB by returning performing artists who unlike new artists shall only undergo a Special Orientation Program (shorter than the basic program) although they must pass the academic test

January 27 1995-- In Civil No 95-72750 the Federation of Entertainment Talent Managers of the Philippines (FETMOP) filed a class suit assailing these department orders principally contending that said orders 1) violated the constitutional right to travel 2) abridged existing contracts for employment and 3) deprived individual artists of their licenses without due

process of law FETMOP likewise averred that the issuance of the Artist Record Book (ARB) was discriminatory and illegal and in gross violation of the constitutional right to life liberty and property Said Federation consequently prayed for the issuance of a writ of preliminary injunction against the aforestated orders

February 2 1992-- JMM Promotion and Management Inc and Kary International Inc herein petitioners filed a Motion for Intervention in said civil case which was granted by the trial court in an Order dated 15 February 1995

February 21 1995-- the trial court issued an Order denying petitioners prayer for a writ of preliminary injunction and dismissed the complaint

On appeal from the trial courts Order respondent court in CA GR SP No 36713 dismissed the same Tracing the circumstances which led to the issuance of the ARB requirement and the assailed Department Order respondent court concluded that the issuances constituted a valid exercise by the state of the police power

ISSUE WON the trial court is corrct in dismissing the complaint

HELD YES The latin maxim salus populi est suprema lex embodies the character of the entire spectrum of public laws aimed at promoting the general welfare of the people under the States police power As an inherent attribute of sovereignty which virtually extends to all public needs this least limitable of governmental powers grants a wide panoply of instruments through which the state as parens patriae gives effect to a host of its regulatory powers

Justice Malcolm in the early case of Rubi v Provincial Board of Mindoro wrote The police power of the State one court has said is a power coextensive with self-protection and is not inaptly termed the law of overruling necessity It may be said to be that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort safety and welfare of society Carried onward by the current of legislature the judiciary rarely attempts to dam the onrushing power of legislative discretion provided the purposes of the law do not go beyond the great principles that mean security for the public welfare or do not arbitrarily interfere with the right of the individual

Police power concerns government enactments which precisely interfere with personal liberty or property in order to promote the general welfare or the common good As the assailed Department Order enjoys a presumed validity it follows that the burden rests upon petitioners to demonstrate that the said order particularly its ARB requirement does not enhance the public welfare or was exercised arbitrarily or unreasonably

A thorough review of the facts and circumstances leading to the issuance of the assailed orders compels us to rule that the Artist Record Book requirement and the questioned Department Order related to its issuance were issued by the Secretary of Labor pursuant to a valid exercise of the police power

In 1984 the Philippines emerged as the largest labor sending country in Asia dwarfing the labor export of countries with mammoth populations such as India and China According to the National Statistics Office this diasporawas augmented annually by over 450000 documented and clandestine or illegal (undocumented) workers who left the country for various destinations abroad lured by higher salaries better work opportunities and sometimes better living conditions Of the hundreds of thousands of workers who left the country for greener pastures in the last few years women composed slightly close to half of those deployed constituting 47 between 1987-1991 exceeding this proportion (58) by the end of 1991 the year former President Aquino instituted the ban on deployment of performing artists to Japan and other countries as a result of the gruesome death of Filipino entertainer Maricris Sioson A large number employed as domestic helpers and entertainers worked under exploitative conditions marked by physical and personal abuse Pursuant to the alarming number of reports that a significant number of Filipina performing artists ended up as prostitutes abroad (many of whom were beaten drugged and forced into prostitution) and following the deaths of a number of these women the government began instituting measures aimed at deploying only those individuals who met set standards which would qualify them as legitimate performing artists

Thus after a number of inadequate and failed accreditation schemes the Secretary of Labor issued on August 16 1993 DO No 28 establishing the Entertainment Industry Advisory Council (EIAC) the policy advisory body of DOLE on

18

entertainment industry matters Acting on the recommendations of the said body the Secretary of Labor on January 6 1994 issued the assailed orders These orders embodied EIACs Resolution No 1 which called for guidelines on screening testing and accrediting performing overseas Filipino artists Significantly as the respondent court noted petitioners were duly represented in the EIAC which gave the recommendations on which the ARB and other requirements were based

Clearly the welfare of Filipino performing artists particularly the women was paramount in the issuance of Department Order No 3 Short of a total and absolute ban against the deployment of performing artists to high-risk destinations a measure which would only drive recruitment further underground the new scheme at the very least rationalizes the method of screening performing artists by requiring reasonable educational and artistic skills from them and limits deployment to only those individuals adequately prepared for the unpredictable demands of employment as artists abroad It cannot be gainsaid that this scheme at least lessens the room for exploitation by unscrupulous individuals and agencies

Here or abroad selection of performing artists is usually accomplished by auditions where those deemed unfit are usually weeded out through a process which is inherently subjective and vulnerable to bias and differences in taste The ARB requirement goes one step further however attempting to minimize the subjectivity of the process by defining minimum skills required from entertainers and performing artists As the Solicitor General observed this should be easily met by experienced artists possessing merely basic skills The tests are aimed at segregating real artists or performers from those passing themselves off as such eager to accept any available job and therefore exposing themselves to possible exploitation

Therersquos nothing wrong with the requirement for document and booking confirmation (DO 3-C) a minimum salary scale (DO 3-E) or the requirement for registration of returning performers The requirement for a venue certificate or other documents evidencing the place and nature of work allows the government closer monitoring of foreign employers and helps keep our entertainers away from prostitution fronts and other worksites associated with unsavory immoral illegal or exploitative practices None of these issuances appears unreasonable or arbitrary They address a felt need of according greater protection for an oft-exploited segment of our OCWs They respond to the industrys demand for clearer and more practicable rules and guidelines Many of these provisions were fleshed out following recommendations by and after consultations with the affected sectors and non-government organizations

The basic constitutional statement on labor embodied in Section 18 of Article II of the Constitution provides Sec 18 The State affirms labor as a primary social economic force It shall protect the rights of workers and promote their welfare

More emphatically the social justice provision on labor of the 1987 Constitution in its first paragraph statesnThe State shall afford full protection to labor local and overseas organized and unorganized and promote full employment and equality of employment opportunities for all

Obviously protection to labor does not indicate promotion of employment alone Under the welfare and social justice provisions of the Constitution the promotion of full employment while desirable cannot take a backseat to the governments constitutional duty to provide mechanisms for the protection of our workforce local or overseas

A profession trade or calling is a property right within the meaning of our constitutional guarantees One cannot be deprived of the right to work and the right to make a living because these rights are property rights the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong

Nevertheless no right is absolute and the proper regulation of a profession calling business or trade has always been upheld as a legitimate subject of a valid exercise of the police power by the state particularly when their conduct affects either the execution of legitimate governmental functions the preservation of the State the public health and welfare and public morals According to the maxim sic utere tuo ut alienum non laedas it must of course be within the legitimate range of legislative action to define the mode and manner in which every one may so use his own property so as not to pose injury to himself or others

In any case where the liberty curtailed affects at most the rights of property the permissible scope of regulatory measures is certainly much wider To pretend that licensing or accreditation requirements violates the due process clause is to ignore the settled practice under the mantle of the police power of regulating entry to the practice of various trades or professions

Professionals leaving for abroad are required to pass rigid written and practical exams before they are deemed fit to practice their trade Seamen are required to take tests determining their seamanship Locally the Professional Regulation Commission has began to require previously licensed doctors and other professionals to furnish documentary proof that they had either re-trained or had undertaken continuing education courses as a requirement for renewal of their licenses It is not claimed that these requirements pose an unwarranted deprivation of a property right under the due process clause So long as professionals and other workers meet reasonable regulatory standards no such deprivation exists

It is a futile gesture on the part of petitioners to invoke the non-impairment clause of the Constitution to support their argument that the government cannot enact the assailed regulatory measures because they abridge the freedom to contract In Philippine Association of Service Exporters Inc vs Drilon we held that [t]he non-impairment clause of the Constitution must yield to the loftier purposes targeted by the government Equally important into every contract is read provisions of existing law and always a reservation of the police power for so long as the agreement deals with a subject impressed with the public welfare

The equal protection clause is directed principally against undue favor and individual or class privilege It is not intended to prohibit legislation which is limited to the object to which it is directed or by the territory in which it is to operate It does not require absolute equality but merely that all persons be treated alike under like conditions both as to privileges conferred and liabilities imposed We have held time and again that the equal protection clause of the Constitution does not forbid classification for so long as such classification is based on real and substantial differences having a reasonable relation to the subject of the particular legislation If classification is germane to the purpose of the law concerns all members of the class and applies equally to present and future conditions the classification does not violate the equal protection guarantee DENIED

17

Section 26 of the Medical Act of 1959 provides for the administrative and judicial remedies that respondents herein can avail to question Resolution No 26 of the Board of Medicine namely (a) appeal the unfavorable judgment to the PRC (b) should the PRC ruling still be unfavorable to elevate the matter on appeal to the Office of the President and (c) should they still be unsatisfied to ask for a review of the case or to bring the case to court via a special civil action of certiorari Thus as a rule mandamus will not lie when administrative remedies are still available However the doctrine of exhaustion of administrative remedies does not apply where as in this case a pure question of law is raised On this issue no reversible error may thus be laid at the door of the appellate court in CA-GR SP No 37283 when it refused to dismiss Civil Case No 93-66530 inasmuch as the instant case is a petition for review of the appellate courts ruling in CA-GR SP No 37283 a decision which is inapplicable to the aforementioned respondents will similarly not apply to them

(1) the assailed decision dated May 16 2000 of the Court of Appeals in CA-GR SP No 37283 which affirmed the judgment dated December 19 1994 of the Regional Trial Court of Manila Branch 52 in Civil Case No 93-66530 ordering petitioners to administer the physicians oath to herein respondents as well as the resolution dated August 25 2000 of the appellate court denying the petitioners motion for reconsideration are REVERSED and SET ASIDE and (2) the writ of mandamus issued in Civil Case No 93-66530 and affirmed by the appellate court in CA-GR SP No 37283 is NULLIFIED AND SET ASIDE

9 JMM Promotion amp Management Inc vs Court of Appeals GR No 120095 August 5 1996

FACTS Assailed is the governments power to control deployment of female entertainers to Japan by requiring an Artist Record Book (ARB) as a precondition to the processing by the POEA of any contract for overseas employment

1991--former President Corazon C Aquino ordered a total ban (subsequently rescinded) against the deployment of performing artists to Japan and other foreign destinations The government through the Secretary of Labor and Employment subsequently issued Department Order No 28 creating the Entertainment Industry Advisory Council (EIAC) which was tasked with issuing guidelines on the training testing certification and deployment of performing artists abroad

January 6 1994-- Pursuant to the EIACs recommendations the Secretary of Labor issued Department Order No 3 establishing various procedures and requirements for screening performing artists under a new system of training testing certification and deployment of the former Successful examinees were to be issued an Artists Record Book (ARB) a necessary prerequisite to processing of any contract of employment by the POEA Upon request of the industry implementation of the process originally scheduled for April 1 1994 was moved to October 1 1994

The Department of Labor following the EIACs recommendation issued a series of orders fine-tuning and implementing the new system Prominent among these orders were the following issuances

1 Department Order No 3-A providing for additional guidelines on the training testing certification and deployment of performing artists

2 Department Order No 3-B pertaining to the Artist Record Book (ARB) requirement which could be processed only after the artist could show proof of academic and skills training and has passed the required tests

3 Department Order No 3-E providing the minimum salary a performing artist ought to receive (not less than US$60000 for those bound for Japan) and the authorized deductions therefrom

4 Department Order No 3-F providing for the guidelines on the issuance and use of the ARB by returning performing artists who unlike new artists shall only undergo a Special Orientation Program (shorter than the basic program) although they must pass the academic test

January 27 1995-- In Civil No 95-72750 the Federation of Entertainment Talent Managers of the Philippines (FETMOP) filed a class suit assailing these department orders principally contending that said orders 1) violated the constitutional right to travel 2) abridged existing contracts for employment and 3) deprived individual artists of their licenses without due

process of law FETMOP likewise averred that the issuance of the Artist Record Book (ARB) was discriminatory and illegal and in gross violation of the constitutional right to life liberty and property Said Federation consequently prayed for the issuance of a writ of preliminary injunction against the aforestated orders

February 2 1992-- JMM Promotion and Management Inc and Kary International Inc herein petitioners filed a Motion for Intervention in said civil case which was granted by the trial court in an Order dated 15 February 1995

February 21 1995-- the trial court issued an Order denying petitioners prayer for a writ of preliminary injunction and dismissed the complaint

On appeal from the trial courts Order respondent court in CA GR SP No 36713 dismissed the same Tracing the circumstances which led to the issuance of the ARB requirement and the assailed Department Order respondent court concluded that the issuances constituted a valid exercise by the state of the police power

ISSUE WON the trial court is corrct in dismissing the complaint

HELD YES The latin maxim salus populi est suprema lex embodies the character of the entire spectrum of public laws aimed at promoting the general welfare of the people under the States police power As an inherent attribute of sovereignty which virtually extends to all public needs this least limitable of governmental powers grants a wide panoply of instruments through which the state as parens patriae gives effect to a host of its regulatory powers

Justice Malcolm in the early case of Rubi v Provincial Board of Mindoro wrote The police power of the State one court has said is a power coextensive with self-protection and is not inaptly termed the law of overruling necessity It may be said to be that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort safety and welfare of society Carried onward by the current of legislature the judiciary rarely attempts to dam the onrushing power of legislative discretion provided the purposes of the law do not go beyond the great principles that mean security for the public welfare or do not arbitrarily interfere with the right of the individual

Police power concerns government enactments which precisely interfere with personal liberty or property in order to promote the general welfare or the common good As the assailed Department Order enjoys a presumed validity it follows that the burden rests upon petitioners to demonstrate that the said order particularly its ARB requirement does not enhance the public welfare or was exercised arbitrarily or unreasonably

A thorough review of the facts and circumstances leading to the issuance of the assailed orders compels us to rule that the Artist Record Book requirement and the questioned Department Order related to its issuance were issued by the Secretary of Labor pursuant to a valid exercise of the police power

In 1984 the Philippines emerged as the largest labor sending country in Asia dwarfing the labor export of countries with mammoth populations such as India and China According to the National Statistics Office this diasporawas augmented annually by over 450000 documented and clandestine or illegal (undocumented) workers who left the country for various destinations abroad lured by higher salaries better work opportunities and sometimes better living conditions Of the hundreds of thousands of workers who left the country for greener pastures in the last few years women composed slightly close to half of those deployed constituting 47 between 1987-1991 exceeding this proportion (58) by the end of 1991 the year former President Aquino instituted the ban on deployment of performing artists to Japan and other countries as a result of the gruesome death of Filipino entertainer Maricris Sioson A large number employed as domestic helpers and entertainers worked under exploitative conditions marked by physical and personal abuse Pursuant to the alarming number of reports that a significant number of Filipina performing artists ended up as prostitutes abroad (many of whom were beaten drugged and forced into prostitution) and following the deaths of a number of these women the government began instituting measures aimed at deploying only those individuals who met set standards which would qualify them as legitimate performing artists

Thus after a number of inadequate and failed accreditation schemes the Secretary of Labor issued on August 16 1993 DO No 28 establishing the Entertainment Industry Advisory Council (EIAC) the policy advisory body of DOLE on

18

entertainment industry matters Acting on the recommendations of the said body the Secretary of Labor on January 6 1994 issued the assailed orders These orders embodied EIACs Resolution No 1 which called for guidelines on screening testing and accrediting performing overseas Filipino artists Significantly as the respondent court noted petitioners were duly represented in the EIAC which gave the recommendations on which the ARB and other requirements were based

Clearly the welfare of Filipino performing artists particularly the women was paramount in the issuance of Department Order No 3 Short of a total and absolute ban against the deployment of performing artists to high-risk destinations a measure which would only drive recruitment further underground the new scheme at the very least rationalizes the method of screening performing artists by requiring reasonable educational and artistic skills from them and limits deployment to only those individuals adequately prepared for the unpredictable demands of employment as artists abroad It cannot be gainsaid that this scheme at least lessens the room for exploitation by unscrupulous individuals and agencies

Here or abroad selection of performing artists is usually accomplished by auditions where those deemed unfit are usually weeded out through a process which is inherently subjective and vulnerable to bias and differences in taste The ARB requirement goes one step further however attempting to minimize the subjectivity of the process by defining minimum skills required from entertainers and performing artists As the Solicitor General observed this should be easily met by experienced artists possessing merely basic skills The tests are aimed at segregating real artists or performers from those passing themselves off as such eager to accept any available job and therefore exposing themselves to possible exploitation

Therersquos nothing wrong with the requirement for document and booking confirmation (DO 3-C) a minimum salary scale (DO 3-E) or the requirement for registration of returning performers The requirement for a venue certificate or other documents evidencing the place and nature of work allows the government closer monitoring of foreign employers and helps keep our entertainers away from prostitution fronts and other worksites associated with unsavory immoral illegal or exploitative practices None of these issuances appears unreasonable or arbitrary They address a felt need of according greater protection for an oft-exploited segment of our OCWs They respond to the industrys demand for clearer and more practicable rules and guidelines Many of these provisions were fleshed out following recommendations by and after consultations with the affected sectors and non-government organizations

The basic constitutional statement on labor embodied in Section 18 of Article II of the Constitution provides Sec 18 The State affirms labor as a primary social economic force It shall protect the rights of workers and promote their welfare

More emphatically the social justice provision on labor of the 1987 Constitution in its first paragraph statesnThe State shall afford full protection to labor local and overseas organized and unorganized and promote full employment and equality of employment opportunities for all

Obviously protection to labor does not indicate promotion of employment alone Under the welfare and social justice provisions of the Constitution the promotion of full employment while desirable cannot take a backseat to the governments constitutional duty to provide mechanisms for the protection of our workforce local or overseas

A profession trade or calling is a property right within the meaning of our constitutional guarantees One cannot be deprived of the right to work and the right to make a living because these rights are property rights the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong

Nevertheless no right is absolute and the proper regulation of a profession calling business or trade has always been upheld as a legitimate subject of a valid exercise of the police power by the state particularly when their conduct affects either the execution of legitimate governmental functions the preservation of the State the public health and welfare and public morals According to the maxim sic utere tuo ut alienum non laedas it must of course be within the legitimate range of legislative action to define the mode and manner in which every one may so use his own property so as not to pose injury to himself or others

In any case where the liberty curtailed affects at most the rights of property the permissible scope of regulatory measures is certainly much wider To pretend that licensing or accreditation requirements violates the due process clause is to ignore the settled practice under the mantle of the police power of regulating entry to the practice of various trades or professions

Professionals leaving for abroad are required to pass rigid written and practical exams before they are deemed fit to practice their trade Seamen are required to take tests determining their seamanship Locally the Professional Regulation Commission has began to require previously licensed doctors and other professionals to furnish documentary proof that they had either re-trained or had undertaken continuing education courses as a requirement for renewal of their licenses It is not claimed that these requirements pose an unwarranted deprivation of a property right under the due process clause So long as professionals and other workers meet reasonable regulatory standards no such deprivation exists

It is a futile gesture on the part of petitioners to invoke the non-impairment clause of the Constitution to support their argument that the government cannot enact the assailed regulatory measures because they abridge the freedom to contract In Philippine Association of Service Exporters Inc vs Drilon we held that [t]he non-impairment clause of the Constitution must yield to the loftier purposes targeted by the government Equally important into every contract is read provisions of existing law and always a reservation of the police power for so long as the agreement deals with a subject impressed with the public welfare

The equal protection clause is directed principally against undue favor and individual or class privilege It is not intended to prohibit legislation which is limited to the object to which it is directed or by the territory in which it is to operate It does not require absolute equality but merely that all persons be treated alike under like conditions both as to privileges conferred and liabilities imposed We have held time and again that the equal protection clause of the Constitution does not forbid classification for so long as such classification is based on real and substantial differences having a reasonable relation to the subject of the particular legislation If classification is germane to the purpose of the law concerns all members of the class and applies equally to present and future conditions the classification does not violate the equal protection guarantee DENIED

18

entertainment industry matters Acting on the recommendations of the said body the Secretary of Labor on January 6 1994 issued the assailed orders These orders embodied EIACs Resolution No 1 which called for guidelines on screening testing and accrediting performing overseas Filipino artists Significantly as the respondent court noted petitioners were duly represented in the EIAC which gave the recommendations on which the ARB and other requirements were based

Clearly the welfare of Filipino performing artists particularly the women was paramount in the issuance of Department Order No 3 Short of a total and absolute ban against the deployment of performing artists to high-risk destinations a measure which would only drive recruitment further underground the new scheme at the very least rationalizes the method of screening performing artists by requiring reasonable educational and artistic skills from them and limits deployment to only those individuals adequately prepared for the unpredictable demands of employment as artists abroad It cannot be gainsaid that this scheme at least lessens the room for exploitation by unscrupulous individuals and agencies

Here or abroad selection of performing artists is usually accomplished by auditions where those deemed unfit are usually weeded out through a process which is inherently subjective and vulnerable to bias and differences in taste The ARB requirement goes one step further however attempting to minimize the subjectivity of the process by defining minimum skills required from entertainers and performing artists As the Solicitor General observed this should be easily met by experienced artists possessing merely basic skills The tests are aimed at segregating real artists or performers from those passing themselves off as such eager to accept any available job and therefore exposing themselves to possible exploitation

Therersquos nothing wrong with the requirement for document and booking confirmation (DO 3-C) a minimum salary scale (DO 3-E) or the requirement for registration of returning performers The requirement for a venue certificate or other documents evidencing the place and nature of work allows the government closer monitoring of foreign employers and helps keep our entertainers away from prostitution fronts and other worksites associated with unsavory immoral illegal or exploitative practices None of these issuances appears unreasonable or arbitrary They address a felt need of according greater protection for an oft-exploited segment of our OCWs They respond to the industrys demand for clearer and more practicable rules and guidelines Many of these provisions were fleshed out following recommendations by and after consultations with the affected sectors and non-government organizations

The basic constitutional statement on labor embodied in Section 18 of Article II of the Constitution provides Sec 18 The State affirms labor as a primary social economic force It shall protect the rights of workers and promote their welfare

More emphatically the social justice provision on labor of the 1987 Constitution in its first paragraph statesnThe State shall afford full protection to labor local and overseas organized and unorganized and promote full employment and equality of employment opportunities for all

Obviously protection to labor does not indicate promotion of employment alone Under the welfare and social justice provisions of the Constitution the promotion of full employment while desirable cannot take a backseat to the governments constitutional duty to provide mechanisms for the protection of our workforce local or overseas

A profession trade or calling is a property right within the meaning of our constitutional guarantees One cannot be deprived of the right to work and the right to make a living because these rights are property rights the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong

Nevertheless no right is absolute and the proper regulation of a profession calling business or trade has always been upheld as a legitimate subject of a valid exercise of the police power by the state particularly when their conduct affects either the execution of legitimate governmental functions the preservation of the State the public health and welfare and public morals According to the maxim sic utere tuo ut alienum non laedas it must of course be within the legitimate range of legislative action to define the mode and manner in which every one may so use his own property so as not to pose injury to himself or others

In any case where the liberty curtailed affects at most the rights of property the permissible scope of regulatory measures is certainly much wider To pretend that licensing or accreditation requirements violates the due process clause is to ignore the settled practice under the mantle of the police power of regulating entry to the practice of various trades or professions

Professionals leaving for abroad are required to pass rigid written and practical exams before they are deemed fit to practice their trade Seamen are required to take tests determining their seamanship Locally the Professional Regulation Commission has began to require previously licensed doctors and other professionals to furnish documentary proof that they had either re-trained or had undertaken continuing education courses as a requirement for renewal of their licenses It is not claimed that these requirements pose an unwarranted deprivation of a property right under the due process clause So long as professionals and other workers meet reasonable regulatory standards no such deprivation exists

It is a futile gesture on the part of petitioners to invoke the non-impairment clause of the Constitution to support their argument that the government cannot enact the assailed regulatory measures because they abridge the freedom to contract In Philippine Association of Service Exporters Inc vs Drilon we held that [t]he non-impairment clause of the Constitution must yield to the loftier purposes targeted by the government Equally important into every contract is read provisions of existing law and always a reservation of the police power for so long as the agreement deals with a subject impressed with the public welfare

The equal protection clause is directed principally against undue favor and individual or class privilege It is not intended to prohibit legislation which is limited to the object to which it is directed or by the territory in which it is to operate It does not require absolute equality but merely that all persons be treated alike under like conditions both as to privileges conferred and liabilities imposed We have held time and again that the equal protection clause of the Constitution does not forbid classification for so long as such classification is based on real and substantial differences having a reasonable relation to the subject of the particular legislation If classification is germane to the purpose of the law concerns all members of the class and applies equally to present and future conditions the classification does not violate the equal protection guarantee DENIED