Porperty Cases

Ladera v. HodgesG.R. No. 8027-R, September 23, 1952, Vol. 48, No.
12, Official Gazette 5374Reyes,

J.B.L., J.FACTS:
Paz G. Ladera entered into a contract with C.N. Hodges. Hodges promised tosell a lot with an area of 278 square meters to Ladera, subject to certain terms
andconditions. The agreement called for a down payment of P 800.00 and monthlyinstallments of P 5.00 each with interest of 1% per month, until P 2,085 is paid
in full. Incase of failure of the purchaser to make any monthly payment within 60 days after it felldue, the contract
maybe considered as rescinded or annulled.Ladera built a house on the lot. Later on, she defaulted in the payment of the agreedmonthly installment. Hodges
filed an action for the ejectment of Ladera.The court issued an alias writ of execution and pursuant thereto, the city sheriff leviedupon all rights, interests, and
participation over the house of Ladera. At the auction sale,
Laderas house was sold to Avelino A. Magno. Manuel P. Villa, later on, purchase
d thehouse from Magno.Ladera filed an action against Hodges and the judgment sale purchasers. Judgmentwas rendered in favor of Ladera, setting aside the
sale for non-compliance with Rule 39,Rules of Court regarding judicial sales of real property. On appeal, Hodges contendsthat the house, being built on a lot
owned by another, should be regarded as movable or personal property.
ISSUE:

Whether or not Laderas house is an immovable property.

HELD:
YES. The old Civil Code numerates among the things declared by it asimmovable property the following: lands, buildings, roads and constructions of all
kindadhered to the soil. The law does not make any distinction whether or not the owner of the lot is the one who built. Also, since the principles of accession regard
buildings andconstructions as mere accessories to the land on which it is built, it is logical that saidaccessories should partake the nature of the principal thing.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 92013 July 25, 1990
SALVADOR H. LAUREL, petitioner,
vs.
RAMON GARCIA, as head of the Asset Privatization Trust, RAUL MANGLAPUS, as Secretary of
Foreign Affairs, and CATALINO MACARAIG, as Executive Secretary, respondents.
G.R. No. 92047 July 25, 1990
DIONISIO S. OJEDA, petitioner,
vs.
EXECUTIVE SECRETARY MACARAIG, JR., ASSETS PRIVATIZATION TRUST CHAIRMAN RAMON
T. GARCIA, AMBASSADOR RAMON DEL ROSARIO, et al., as members of the PRINCIPAL AND
BIDDING COMMITTEES ON THE UTILIZATION/DISPOSITION PETITION OF PHILIPPINE
GOVERNMENT PROPERTIES IN JAPAN,respondents.
Arturo M. Tolentino for petitioner in 92013.

GUTIERREZ, JR., J .:
These are two petitions for prohibition seeking to enjoin respondents, their representatives and
agents from proceeding with the bidding for the sale of the 3,179 square meters of land at 306
Roppongi, 5-Chome Minato-ku Tokyo, Japan scheduled on February 21, 1990. We granted the
prayer for a temporary restraining order effective February 20, 1990. One of the petitioners (in G.R.
No. 92047) likewise prayes for a writ of mandamus to compel the respondents to fully disclose to
the public the basis of their decision to push through with the sale of the Roppongi property
inspire of strong public opposition and to explain the proceedings which effectively prevent the
participation of Filipino citizens and entities in the bidding process.
The oral arguments in G.R. No. 92013, Laurel v. Garcia, et al. were heard by the Court on March 13,
1990. After G.R. No. 92047, Ojeda v. Secretary Macaraig, et al. was filed, the respondents were
required to file a comment by the Court's resolution dated February 22, 1990. The two petitions
were consolidated on March 27, 1990 when the memoranda of the parties in the Laurel case were
deliberated upon.
The Court could not act on these cases immediately because the respondents filed a motion for
an extension of thirty (30) days to file comment in G.R. No. 92047, followed by a second motion for
an extension of another thirty (30) days which we granted on May 8, 1990, a third motion for
extension of time granted on May 24, 1990 and a fourth motion for extension of time which we
granted on June 5, 1990 but calling the attention of the respondents to the length of time the
petitions have been pending. After the comment was filed, the petitioner in G.R. No. 92047 asked
for thirty (30) days to file a reply. We noted his motion and resolved to decide the two (2) cases.
I
The subject property in this case is one of the four (4) properties in Japan acquired by the
Philippine government under the Reparations Agreement entered into with Japan on May 9, 1956,
the other lots being:
(1) The Nampeidai Property at 11-24 Nampeidai-machi, Shibuya-ku, Tokyo which has an area of
approximately 2,489.96 square meters, and is at present the site of the Philippine Embassy
Chancery;
(2) The Kobe Commercial Property at 63 Naniwa-cho, Kobe, with an area of around 764.72 square
meters and categorized as a commercial lot now being used as a warehouse and parking lot for
the consulate staff; and
(3) The Kobe Residential Property at 1-980-2 Obanoyama-cho, Shinohara, Nada-ku, Kobe, a
residential lot which is now vacant.
The properties and the capital goods and services procured from the Japanese government for
national development projects are part of the indemnification to the Filipino people for their
losses in life and property and their suffering during World War II.
The Reparations Agreement provides that reparations valued at $550 million would be payable in
twenty (20) years in accordance with annual schedules of procurements to be fixed by the
Philippine and Japanese governments (Article 2, Reparations Agreement). Rep. Act No. 1789, the
Reparations Law, prescribes the national policy on procurement and utilization of reparations and
development loans. The procurements are divided into those for use by the government
sector and those for private parties in projects as the then National Economic Council shall
determine. Those intended for the private sector shall be made available by sale to Filipino
citizens or to one hundred (100%) percent Filipino-owned entities in national development
projects.
The Roppongi property was acquired from the Japanese government under the Second Year
Schedule and listed under the heading "Government Sector", through Reparations Contract No.
300 dated June 27, 1958. The Roppongi property consists of the land and building "for the
Chancery of the Philippine Embassy" (Annex M-D to Memorandum for Petitioner, p. 503). As
intended, it became the site of the Philippine Embassy until the latter was transferred to
Nampeidai on July 22, 1976 when the Roppongi building needed major repairs. Due to the failure
of our government to provide necessary funds, the Roppongi property has remained undeveloped
since that time.
A proposal was presented to President Corazon C. Aquino by former Philippine Ambassador to
Japan, Carlos J. Valdez, to make the property the subject of a lease agreement with a Japanese
firm - Kajima Corporation which shall construct two (2) buildings in Roppongi and one (1)
building in Nampeidai and renovate the present Philippine Chancery in Nampeidai. The
consideration of the construction would be the lease to the foreign corporation of one (1) of the
buildings to be constructed in Roppongi and the two (2) buildings in Nampeidai. The other
building in Roppongi shall then be used as the Philippine Embassy Chancery. At the end of the
lease period, all the three leased buildings shall be occupied and used by the Philippine
government. No change of ownership or title shall occur. (See Annex "B" to Reply to Comment)
The Philippine government retains the title all throughout the lease period and thereafter.
However, the government has not acted favorably on this proposal which is pending approval and
ratification between the parties. Instead, on August 11, 1986, President Aquino created a
committee to study the disposition/utilization of Philippine government properties in Tokyo and
Kobe, Japan through Administrative Order No. 3, followed by Administrative Orders Numbered 3-
A, B, C and D.
On July 25, 1987, the President issued Executive Order No. 296 entitling non-Filipino citizens or
entities to avail of separations' capital goods and services in the event of sale, lease or
disposition. The four properties in Japan including the Roppongi were specifically mentioned in
the first "Whereas" clause.
Amidst opposition by various sectors, the Executive branch of the government has been pushing,
with great vigor, its decision to sell the reparations properties starting with the Roppongi lot. The
property has twice been set for bidding at a minimum floor price of $225 million. The first bidding
was a failure since only one bidder qualified. The second one, after postponements, has not yet
materialized. The last scheduled bidding on February 21, 1990 was restrained by his Court. Later,
the rules on bidding were changed such that the $225 million floor price became merely a
suggested floor price.
The Court finds that each of the herein petitions raises distinct issues. The petitioner in G.R. No.
92013 objects to the alienation of the Roppongi property to anyone while the petitioner in G.R. No.
92047 adds as a principal objection the alleged unjustified bias of the Philippine government in
favor of selling the property to non-Filipino citizens and entities. These petitions have been
consolidated and are resolved at the same time for the objective is the same - to stop the sale of
the Roppongi property.
The petitioner in G.R. No. 92013 raises the following issues:
(1) Can the Roppongi property and others of its kind be alienated by the Philippine Government?;
and
(2) Does the Chief Executive, her officers and agents, have the authority and jurisdiction, to sell
the Roppongi property?
Petitioner Dionisio Ojeda in G.R. No. 92047, apart from questioning the authority of the
government to alienate the Roppongi property assails the constitutionality of Executive Order No.
296 in making the property available for sale to non-Filipino citizens and entities. He also
questions the bidding procedures of the Committee on the Utilization or Disposition of Philippine
Government Properties in Japan for being discriminatory against Filipino citizens and Filipino-
owned entities by denying them the right to be informed about the bidding requirements.
II
In G.R. No. 92013, petitioner Laurel asserts that the Roppongi property and the related lots were
acquired as part of the reparations from the Japanese government for diplomatic and consular
use by the Philippine government. Vice-President Laurel states that the Roppongi property is
classified as one of public dominion, and not of private ownership under Article 420 of the Civil
Code (See infra).
The petitioner submits that the Roppongi property comes under "property intended for public
service" in paragraph 2 of the above provision. He states that being one of public dominion, no
ownership by any one can attach to it, not even by the State. The Roppongi and related properties
were acquired for "sites for chancery, diplomatic, and consular quarters, buildings and other
improvements" (Second Year Reparations Schedule). The petitioner states that they continue to
be intended for a necessary service. They are held by the State in anticipation of an opportune
use. (Citing 3 Manresa 65-66). Hence, it cannot be appropriated, is outside the commerce of man,
or to put it in more simple terms, it cannot be alienated nor be the subject matter of contracts
(Citing Municipality of Cavite v. Rojas, 30 Phil. 20 [1915]). Noting the non-use of the Roppongi
property at the moment, the petitioner avers that the same remains property of public dominion so
long as the government has not used it for other purposes nor adopted any measure constituting
a removal of its original purpose or use.
The respondents, for their part, refute the petitioner's contention by saying that the subject
property is not governed by our Civil Code but by the laws of Japan where the property is located.
They rely upon the rule of lex situs which is used in determining the applicable law regarding the
acquisition, transfer and devolution of the title to a property. They also invoke Opinion No. 21,
Series of 1988, dated January 27, 1988 of the Secretary of Justice which used the lex situs in
explaining the inapplicability of Philippine law regarding a property situated in Japan.
The respondents add that even assuming for the sake of argument that the Civil Code is
applicable, the Roppongi property has ceased to become property of public dominion. It has
become patrimonial property because it has not been used for public service or for diplomatic
purposes for over thirteen (13) years now (Citing Article 422, Civil Code) and because
the intention by the Executive Department and the Congress to convert it to private use has been
manifested by overt acts, such as, among others: (1) the transfer of the Philippine Embassy to
Nampeidai (2) the issuance of administrative orders for the possibility of alienating the four
government properties in Japan; (3) the issuance of Executive Order No. 296; (4) the enactment by
the Congress of Rep. Act No. 6657 [the Comprehensive Agrarian Reform Law] on June 10, 1988
which contains a provision stating that funds may be taken from the sale of Philippine properties
in foreign countries; (5) the holding of the public bidding of the Roppongi property but which
failed; (6) the deferment by the Senate in Resolution No. 55 of the bidding to a future date; thus an
acknowledgment by the Senate of the government's intention to remove the Roppongi property
from the public service purpose; and (7) the resolution of this Court dismissing the petition
in Ojeda v. Bidding Committee, et al., G.R. No. 87478 which sought to enjoin the second bidding of
the Roppongi property scheduled on March 30, 1989.
III
In G.R. No. 94047, petitioner Ojeda once more asks this Court to rule on the constitutionality of
Executive Order No. 296. He had earlier filed a petition in G.R. No. 87478 which the Court
dismissed on August 1, 1989. He now avers that the executive order contravenes the
constitutional mandate to conserve and develop the national patrimony stated in the Preamble of
the 1987 Constitution. It also allegedly violates:
(1) The reservation of the ownership and acquisition of alienable lands of the public domain to
Filipino citizens. (Sections 2 and 3, Article XII, Constitution; Sections 22 and 23 of Commonwealth
Act 141).itc-asl
(2) The preference for Filipino citizens in the grant of rights, privileges and concessions covering
the national economy and patrimony (Section 10, Article VI, Constitution);
(3) The protection given to Filipino enterprises against unfair competition and trade practices;
(4) The guarantee of the right of the people to information on all matters of public concern
(Section 7, Article III, Constitution);
(5) The prohibition against the sale to non-Filipino citizens or entities not wholly owned by Filipino
citizens of capital goods received by the Philippines under the Reparations Act (Sections 2 and 12
of Rep. Act No. 1789); and
(6) The declaration of the state policy of full public disclosure of all transactions involving public
interest (Section 28, Article III, Constitution).
Petitioner Ojeda warns that the use of public funds in the execution of an unconstitutional
executive order is a misapplication of public funds He states that since the details of the bidding
for the Roppongi property were never publicly disclosed until February 15, 1990 (or a few days
before the scheduled bidding), the bidding guidelines are available only in Tokyo, and the
accomplishment of requirements and the selection of qualified bidders should be done in Tokyo,
interested Filipino citizens or entities owned by them did not have the chance to comply with
Purchase Offer Requirements on the Roppongi. Worse, the Roppongi shall be sold for a minimum
price of $225 million from which price capital gains tax under Japanese law of about 50 to 70% of
the floor price would still be deducted.
IV
The petitioners and respondents in both cases do not dispute the fact that the Roppongi site and
the three related properties were through reparations agreements, that these were assigned to the
government sector and that the Roppongi property itself was specifically designated under the
Reparations Agreement to house the Philippine Embassy.
The nature of the Roppongi lot as property for public service is expressly spelled out. It is dictated
by the terms of the Reparations Agreement and the corresponding contract of procurement which
bind both the Philippine government and the Japanese government.
There can be no doubt that it is of public dominion unless it is convincingly shown that the
property has become patrimonial. This, the respondents have failed to do.
As property of public dominion, the Roppongi lot is outside the commerce of man. It cannot be
alienated. Its ownership is a special collective ownership for general use and enjoyment, an
application to the satisfaction of collective needs, and resides in the social group. The purpose is
not to serve the State as a juridical person, but the citizens; it is intended for the common and
public welfare and cannot be the object of appropration. (Taken from 3 Manresa, 66-69; cited in
Tolentino, Commentaries on the Civil Code of the Philippines, 1963 Edition, Vol. II, p. 26).
The applicable provisions of the Civil Code are:
ART. 419. Property is either of public dominion or of private ownership.
ART. 420. The following things are property of public dominion
(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks shores roadsteads, and others of similar
character;
(2) Those which belong to the State, without being for public use, and are intended
for some public service or for the development of the national wealth.
ART. 421. All other property of the State, which is not of the character stated in the
preceding article, is patrimonial property.
The Roppongi property is correctly classified under paragraph 2 of Article 420 of the Civil Code as
property belonging to the State and intended for some public service.
Has the intention of the government regarding the use of the property been changed because the
lot has been Idle for some years? Has it become patrimonial?
The fact that the Roppongi site has not been used for a long time for actual Embassy service does
not automatically convert it to patrimonial property. Any such conversion happens only if the
property is withdrawn from public use (Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481
[1975]). A property continues to be part of the public domain, not available for private
appropriation or ownership until there is a formal declaration on the part of the government to
withdraw it from being such (Ignacio v. Director of Lands, 108 Phil. 335 [1960]).
The respondents enumerate various pronouncements by concerned public officials insinuating a
change of intention. We emphasize, however, that an abandonment of the intention to use the
Roppongi property for public service and to make it patrimonial property under Article 422 of the
Civil Code must be definite Abandonment cannot be inferred from the non-use alone specially if
the non-use was attributable not to the government's own deliberate and indubitable will but to a
lack of financial support to repair and improve the property (See Heirs of Felino Santiago v.
Lazaro, 166 SCRA 368 [1988]). Abandonment must be a certain and positive act based on correct
legal premises.
A mere transfer of the Philippine Embassy to Nampeidai in 1976 is not relinquishment of the
Roppongi property's original purpose. Even the failure by the government to repair the building in
Roppongi is not abandonment since as earlier stated, there simply was a shortage of government
funds. The recent Administrative Orders authorizing a study of the status and conditions of
government properties in Japan were merely directives for investigation but did not in any way
signify a clear intention to dispose of the properties.
Executive Order No. 296, though its title declares an "authority to sell", does not have a provision
in its text expressly authorizing the sale of the four properties procured from Japan for the
government sector. The executive order does not declare that the properties lost their public
character. It merely intends to make the properties available to foreigners and not to Filipinos
alone in case of a sale, lease or other disposition. It merely eliminates the restriction under Rep.
Act No. 1789 that reparations goods may be sold only to Filipino citizens and one hundred (100%)
percent Filipino-owned entities. The text of Executive Order No. 296 provides:
Section 1. The provisions of Republic Act No. 1789, as amended, and of other laws
to the contrary notwithstanding, the above-mentioned properties can be made
available for sale, lease or any other manner of disposition to non-Filipino citizens
or to entities owned by non-Filipino citizens.
Executive Order No. 296 is based on the wrong premise or assumption that the Roppongi and the
three other properties were earlier converted into alienable real properties. As earlier stated, Rep.
Act No. 1789 differentiates the procurements for the government sector and the private sector
(Sections 2 and 12, Rep. Act No. 1789). Only the private sector properties can be sold to end-users
who must be Filipinos or entities owned by Filipinos. It is this nationality provision which was
amended by Executive Order No. 296.
Section 63 (c) of Rep. Act No. 6657 (the CARP Law) which provides as one of the sources of funds
for its implementation, the proceeds of the disposition of the properties of the Government in
foreign countries, did not withdraw the Roppongi property from being classified as one of public
dominion when it mentions Philippine properties abroad. Section 63 (c) refers to properties which
are alienable and not to those reserved for public use or service. Rep Act No. 6657, therefore,
does not authorize the Executive Department to sell the Roppongi property. It merely enumerates
possible sources of future funding to augment (as and when needed) the Agrarian Reform Fund
created under Executive Order No. 299. Obviously any property outside of the commerce of man
cannot be tapped as a source of funds.
The respondents try to get around the public dominion character of the Roppongi property by
insisting that Japanese law and not our Civil Code should apply.
It is exceedingly strange why our top government officials, of all people, should be the ones to
insist that in the sale of extremely valuable government property, Japanese law and not Philippine
law should prevail. The Japanese law - its coverage and effects, when enacted, and exceptions to
its provision is not presented to the Court It is simply asserted that the lex loci rei sitae or
Japanese law should apply without stating what that law provides. It is a ed on faith that Japanese
law would allow the sale.
We see no reason why a conflict of law rule should apply when no conflict of law situation exists.
A conflict of law situation arises only when: (1) There is a dispute over the title or ownership of an
immovable, such that the capacity to take and transfer immovables, the formalities of conveyance,
the essential validity and effect of the transfer, or the interpretation and effect of a conveyance,
are to be determined (See Salonga, Private International Law, 1981 ed., pp. 377-383); and (2) A
foreign law on land ownership and its conveyance is asserted to conflict with a domestic law on
the same matters. Hence, the need to determine which law should apply.
In the instant case, none of the above elements exists.
The issues are not concerned with validity of ownership or title. There is no question that the
property belongs to the Philippines. The issue is the authority of the respondent officials to validly
dispose of property belonging to the State. And the validity of the procedures adopted to effect its
sale. This is governed by Philippine Law. The rule of lex situs does not apply.
The assertion that the opinion of the Secretary of Justice sheds light on the relevance of the lex
situsrule is misplaced. The opinion does not tackle the alienability of the real properties procured
through reparations nor the existence in what body of the authority to sell them. In discussing
who are capableof acquiring the lots, the Secretary merely explains that it is the foreign law which
should determinewho can acquire the properties so that the constitutional limitation on
acquisition of lands of the public domain to Filipino citizens and entities wholly owned by
Filipinos is inapplicable. We see no point in belaboring whether or not this opinion is correct. Why
should we discuss who can acquire the Roppongi lot when there is no showing that it can be
sold?
The subsequent approval on October 4, 1988 by President Aquino of the recommendation by the
investigating committee to sell the Roppongi property was premature or, at the very least,
conditioned on a valid change in the public character of the Roppongi property. Moreover, the
approval does not have the force and effect of law since the President already lost her legislative
powers. The Congress had already convened for more than a year.
Assuming for the sake of argument, however, that the Roppongi property is no longer of public
dominion, there is another obstacle to its sale by the respondents.
There is no law authorizing its conveyance.
Section 79 (f) of the Revised Administrative Code of 1917 provides
Section 79 (f ) Conveyances and contracts to which the Government is a party.
In cases in which the Government of the Republic of the Philippines is a party to
any deed or other instrument conveying the title to real estate or to any other
property the value of which is in excess of one hundred thousand pesos, the
respective Department Secretary shall prepare the necessary papers which,
together with the proper recommendations, shall be submitted to the Congress of
the Philippines for approval by the same. Such deed, instrument, or contract shall
be executed and signed by the President of the Philippines on behalf of the
Government of the Philippines unless the Government of the Philippines unless
the authority therefor be expressly vested by law in another officer. (Emphasis
supplied)
The requirement has been retained in Section 48, Book I of the Administrative Code of 1987
(Executive Order No. 292).
SEC. 48. Official Authorized to Convey Real Property. Whenever real property of
the Government is authorized by law to be conveyed, the deed of conveyance shall
be executed in behalf of the government by the following:
(1) For property belonging to and titled in the name of the Republic of the
Philippines, by the President, unless the authority therefor is expressly vested by
law in another officer.
(2) For property belonging to the Republic of the Philippines but titled in the name
of any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality. (Emphasis supplied)
It is not for the President to convey valuable real property of the government on his or her own
sole will. Any such conveyance must be authorized and approved by a law enacted by the
Congress. It requires executive and legislative concurrence.
Resolution No. 55 of the Senate dated June 8, 1989, asking for the deferment of the sale of the
Roppongi property does not withdraw the property from public domain much less authorize its
sale. It is a mere resolution; it is not a formal declaration abandoning the public character of the
Roppongi property. In fact, the Senate Committee on Foreign Relations is conducting hearings on
Senate Resolution No. 734 which raises serious policy considerations and calls for a fact-finding
investigation of the circumstances behind the decision to sell the Philippine government
properties in Japan.
The resolution of this Court in Ojeda v. Bidding Committee, et al., supra, did not pass upon the
constitutionality of Executive Order No. 296. Contrary to respondents' assertion, we did not
uphold the authority of the President to sell the Roppongi property. The Court stated that the
constitutionality of the executive order was not the real issue and that resolving the constitutional
question was "neither necessary nor finally determinative of the case." The Court noted that
"[W]hat petitioner ultimately questions is the use of the proceeds of the disposition of the
Roppongi property." In emphasizing that "the decision of the Executive to dispose of the
Roppongi property to finance the CARP ... cannot be questioned" in view of Section 63 (c) of Rep.
Act No. 6657, the Court did not acknowledge the fact that the property became alienable nor did it
indicate that the President was authorized to dispose of the Roppongi property. The resolution
should be read to mean that in case the Roppongi property is re-classified to be patrimonial and
alienable by authority of law, the proceeds of a sale may be used for national economic
development projects including the CARP.
Moreover, the sale in 1989 did not materialize. The petitions before us question the proposed 1990
sale of the Roppongi property. We are resolving the issues raised in these petitions, not the
issues raised in 1989.
Having declared a need for a law or formal declaration to withdraw the Roppongi property from
public domain to make it alienable and a need for legislative authority to allow the sale of the
property, we see no compelling reason to tackle the constitutional issues raised by petitioner
Ojeda.
The Court does not ordinarily pass upon constitutional questions unless these questions are
properly raised in appropriate cases and their resolution is necessary for the determination of the
case (People v. Vera, 65 Phil. 56 [1937]). The Court will not pass upon a constitutional question
although properly presented by the record if the case can be disposed of on some other ground
such as the application of a statute or general law (Siler v. Louisville and Nashville R. Co., 213 U.S.
175, [1909], Railroad Commission v. Pullman Co., 312 U.S. 496 [1941]).
The petitioner in G.R. No. 92013 states why the Roppongi property should not be sold:
The Roppongi property is not just like any piece of property. It was given to the
Filipino people in reparation for the lives and blood of Filipinos who died and
suffered during the Japanese military occupation, for the suffering of widows and
orphans who lost their loved ones and kindred, for the homes and other properties
lost by countless Filipinos during the war. The Tokyo properties are a monument
to the bravery and sacrifice of the Filipino people in the face of an invader; like the
monuments of Rizal, Quezon, and other Filipino heroes, we do not expect
economic or financial benefits from them. But who would think of selling these
monuments? Filipino honor and national dignity dictate that we keep our
properties in Japan as memorials to the countless Filipinos who died and suffered.
Even if we should become paupers we should not think of selling them. For it
would be as if we sold the lives and blood and tears of our countrymen. (Rollo-
G.R. No. 92013, p.147)
The petitioner in G.R. No. 92047 also states:
Roppongi is no ordinary property. It is one ceded by the Japanese government in
atonement for its past belligerence for the valiant sacrifice of life and limb and for
deaths, physical dislocation and economic devastation the whole Filipino people
endured in World War II.
It is for what it stands for, and for what it could never bring back to life, that its
significance today remains undimmed, inspire of the lapse of 45 years since the
war ended, inspire of the passage of 32 years since the property passed on to the
Philippine government.
Roppongi is a reminder that cannot should not be dissipated ... (Rollo-92047,
p. 9)
It is indeed true that the Roppongi property is valuable not so much because of the inflated prices
fetched by real property in Tokyo but more so because of its symbolic value to all Filipinos
veterans and civilians alike. Whether or not the Roppongi and related properties will eventually be
sold is a policy determination where both the President and Congress must concur. Considering
the properties' importance and value, the laws on conversion and disposition of property of public
dominion must be faithfully followed.
WHEREFORE, IN VIEW OF THE FOREGOING, the petitions are GRANTED. A writ of prohibition is
issued enjoining the respondents from proceeding with the sale of the Roppongi property in
Tokyo, Japan. The February 20, 1990 Temporary Restraining Order is made PERMANENT.
SO ORDERED.
Melencio-Herrera, Paras, Bidin, Grio-Aquino and Regalado, J J ., concur.

Separate Opinions

CRUZ, J ., concurring:
I concur completely with the excellent ponencia of Mr. Justice Gutierrez and will add the following
observations only for emphasis.
It is clear that the respondents have failed to show the President's legal authority to sell the
Roppongi property. When asked to do so at the hearing on these petitions, the Solicitor General
was at best ambiguous, although I must add in fairness that this was not his fault. The fact is that
there is -no such authority. Legal expertise alone cannot conjure that statutory permission out of
thin air.
Exec. Order No. 296, which reads like so much legislative, double talk, does not contain such
authority. Neither does Rep. Act No. 6657, which simply allows the proceeds of the sale of our
properties abroad to be used for the comprehensive agrarian reform program. Senate Res. No. 55
was a mere request for the deferment of the scheduled sale of tile Roppongi property, possibly to
stop the transaction altogether; and ill any case it is not a law. The sale of the said property may
be authorized only by Congress through a duly enacted statute, and there is no such law.
Once again, we have affirmed the principle that ours is a government of laws and not of men,
where every public official, from the lowest to the highest, can act only by virtue of a valid
authorization. I am happy to note that in the several cases where this Court has ruled against her,
the President of the Philippines has submitted to this principle with becoming grace.

PADILLA, J ., concurring:
I concur in the decision penned by Mr. Justice Gutierrez, Jr., I only wish to make a few
observations which could help in further clarifying the issues.
Under our tripartite system of government ordained by the Constitution, it is Congress that lays
down or determines policies. The President executes such policies. The policies determined by
Congress are embodied in legislative enactments that have to be approved by the President to
become law. The President, of course, recommends to Congress the approval of policies but, in
the final analysis, it is Congress that is the policy - determining branch of government.
The judiciary interprets the laws and, in appropriate cases, determines whether the laws enacted
by Congress and approved by the President, and presidential acts implementing such laws, are in
accordance with the Constitution.
The Roppongi property was acquired by the Philippine government pursuant to the reparations
agreement between the Philippine and Japanese governments. Under such agreement, this
property was acquired by the Philippine government for a specific purpose, namely, to serve as
the site of the Philippine Embassy in Tokyo, Japan. Consequently, Roppongi is a property of
public dominion and intended for public service, squarely falling within that class of property
under Art. 420 of the Civil Code, which provides:
Art. 420. The following things are property of public dominion :
(1) ...
for some public service or for the development of the national wealth. (339a)
Public dominion property intended for public service cannot be alienated unless the property is
first transformed into private property of the state otherwise known as patrimonial property of the
state.
1
The transformation of public dominion property to state patrimonial property involves, to
my mind, a policy decision. It is a policy decision because the treatment of the property varies
according to its classification. Consequently, it is Congress which can decide and declare the
conversion of Roppongi from a public dominion property to a state patrimonial property.
Congress has made no such decision or declaration.
Moreover, the sale of public property (once converted from public dominion to state patrimonial
property) must be approved by Congress, for this again is a matter of policy (i.e. to keep or
dispose of the property). Sec. 48, Book 1 of the Administrative Code of 1987 provides:
(1) For property belonging to and titled in the name of the Republic
of the Philippines, by the President, unless the authority therefor is
expressly vested by law in another officer.
(2) For property belonging to the Republic of the Philippines but
titled in the name of any political subdivision or of any corporate
agency or instrumentality, by the executive head of the agency or
instrumentality. (Emphasis supplied)
But the record is bare of any congressional decision or approval to sell Roppongi. The record is
likewise bare of any congressional authority extended to the President to sell Roppongi thru
public bidding or otherwise.
It is therefore, clear that the President cannot sell or order the sale of Roppongi thru public
bidding or otherwise without a prior congressional approval, first, converting Roppongi from a
public dominion property to a state patrimonial property, and, second, authorizing the President
to sell the same.
ACCORDINGLY, my vote is to GRANT the petition and to make PERMANENT the temporary
restraining order earlier issued by this Court.

SARMIENTO, J ., concurring:
The central question, as I see it, is whether or not the so-called "Roppongi property' has lost its
nature as property of public dominion, and hence, has become patrimonial property of the State. I
understand that the parties are agreed that it was property intended for "public service" within the
contemplation of paragraph (2), of Article 430, of the Civil Code, and accordingly, land of State
dominion, and beyond human commerce. The lone issue is, in the light of supervening
developments, that is non-user thereof by the National Government (for diplomatic purposes) for
the last thirteen years; the issuance of Executive Order No. 296 making it available for sale to any
interested buyer; the promulgation of Republic Act No. 6657, the Comprehensive Agrarian Reform
Law, making available for the program's financing, State assets sold; the approval by the
President of the recommendation of the investigating committee formed to study the property's
utilization; and the issuance of Resolution No. 55 of the Philippine Senate requesting for the
deferment of its disposition it, "Roppongi", is still property of the public dominion, and if it is not,
how it lost that character.
When land of the public dominion ceases to be one, or when the change takes place, is a question
our courts have debated early. In a 1906 decision,
1
it was held that property of the public
dominion, a public plaza in this instance, becomes patrimonial upon use thereof for purposes
other than a plaza. In a later case,
2
this ruling was reiterated. Likewise, it has been held that land,
originally private property, has become of public dominion upon its donation to the town and its
conversion and use as a public plaza.
3
It is notable that under these three cases, the character of
the property, and any change occurring therein, depends on the actual use to which it is
dedicated.
4

Much later, however, the Court held that "until a formal declaration on the part of the Government,
through the executive department or the Legislative, to the effect that the land . . . is no longer
needed for [public] service- for public use or for special industries, [it] continue[s] to be part of
the public [dominion], not available for private expropriation or ownership."
5
So also, it was ruled
that a political subdivision (the City of Cebu in this case) alone may declare (under its charter) a
city road abandoned and thereafter, to dispose of it.
6

In holding that there is "a need for a law or formal declaration to withdraw the Roppongi property
from public domain to make it alienable and a land for legislative authority to allow the sale of the
property"
7
the majority lays stress to the fact that: (1) An affirmative act executive or legislative
is necessary to reclassify property of the public dominion, and (2) a legislative decree is
required to make it alienable. It also clears the uncertainties brought about by earlier
interpretations that the nature of property-whether public or patrimonial is predicated on the
manner it is actually used, or not used, and in the same breath, repudiates the Government's
position that the continuous non-use of "Roppongi", among other arguments, for "diplomatic
purposes", has turned it into State patrimonial property.
I feel that this view corresponds to existing pronouncements of this Court, among other things,
that: (1) Property is presumed to be State property in the absence of any showing to the
contrary;
8
(2) With respect to forest lands, the same continue to be lands of the public dominion
unless and until reclassified by the Executive Branch of the Government;
9
and (3) All natural
resources, under the Constitution, and subject to exceptional cases, belong to the State.
10

I am elated that the Court has banished previous uncertainties.

FELICIANO, J ., dissenting
With regret, I find myself unable to share the conclusions reached by Mr. Justice Hugo E.
Gutierrez, Jr.
For purposes of this separate opinion, I assume that the piece of land located in 306 Roppongi, 5-
Chome, Minato-ku Tokyo, Japan (hereinafter referred to as the "Roppongi property") may be
characterized as property of public dominion, within the meaning of Article 420 (2) of the Civil
Code:
[Property] which belong[s] to the State, without being for public use, and are
intended for some public service -.
It might not be amiss however, to note that the appropriateness of trying to bring within the
confines of the simple threefold classification found in Article 420 of the Civil Code ("property for
public use property "intended for some public service" and property intended "for the
development of the national wealth") all property owned by the Republic of the Philippines
whether found within the territorial boundaries of the Republic or located within the territory of
another sovereign State, is notself-evident. The first item of the classification property intended
for public use can scarcely be properly applied to property belonging to the Republic but found
within the territory of another State. The third item of the classification property intended for the
development of the national wealth is illustrated, in Article 339 of the Spanish Civil Code of 1889,
by mines or mineral properties. Again, mineral lands owned by a sovereign State are rarely, if
ever, found within the territorial base of another sovereign State. The task of examining in detail
the applicability of the classification set out in Article 420 of our Civil Code to property that the
Philippines happens to own outside its own boundaries must, however, be left to academicians.
For present purposes, too, I agree that there is no question of conflict of laws that is, at the
present time, before this Court. The issues before us relate essentially to authority to sell the
Roppongi property so far as Philippine law is concerned.
The majority opinion raises two (2) issues: (a) whether or not the Roppongi property has been
converted into patrimonial property or property of the private domain of the State; and (b)
assuming an affirmative answer to (a), whether or not there is legal authority to dispose of the
Roppongi property.
I
Addressing the first issue of conversion of property of public dominion intended for some public
service, into property of the private domain of the Republic, it should be noted that the Civil Code
does not address the question of who has authority to effect such conversion. Neither does the
Civil Code set out or refer to any procedure for such conversion.
Our case law, however, contains some fairly explicit pronouncements on this point, as Justice
Sarmiento has pointed out in his concurring opinion. In Ignacio v. Director of Lands (108 Phils.
335 [1960]), petitioner Ignacio argued that if the land in question formed part of the public domain,
the trial court should have declared the same no longer necessary for public use or public
purposes and which would, therefore, have become disposable and available for private
ownership. Mr. Justice Montemayor, speaking for the Court, said:
Article 4 of the Law of Waters of 1866 provides that when a portion of the shore is
no longer washed by the waters of the sea and is not necessary for purposes of
public utility, or for the establishment of special industries, or for coast-guard
service, the government shall declare it to be the property of the owners of the
estates adjacent thereto and as an increment thereof. We believe that only the
executive and possibly the legislative departments have the authority and the
power to make the declaration that any land so gained by the sea, is not necessary
for purposes of public utility, or for the establishment of special industries, or for
coast-guard service. If no such declaration has been made by said departments,
the lot in question forms part of the public domain. (Natividad v. Director of
Lands, supra.)
The reason for this pronouncement, according to this Tribunal in the case of
Vicente Joven y Monteverde v. Director of Lands, 93 Phil., 134 (cited in Velayo's
Digest, Vol. 1, p. 52).
... is undoubtedly that the courts are neither primarily called upon, nor indeed in a
position to determine whether any public land are to be used for the purposes
specified in Article 4 of the Law of Waters. Consequently, until a formal declaration
on the part of the Government, through the executive department or the
Legislature, to the effect that the land in question is no longer needed for coast-
guard service, for public use or for special industries, they continue to be part of
the public domain not available for private appropriation or ownership.(108 Phil. at
338-339; emphasis supplied)
Thus, under Ignacio, either the Executive Department or the Legislative Department may convert
property of the State of public dominion into patrimonial property of the State. No particular
formula or procedure of conversion is specified either in statute law or in case law. Article 422 of
the Civil Code simply states that: "Property of public dominion, when no longer intended
for public use or for public service, shall form part of the patrimonial property of the State". I
respectfully submit, therefore, that the only requirement which is legitimately imposable is that
the intent to convert must be reasonably clear from a consideration of the acts or acts of the
Executive Department or of the Legislative Department which are said to have effected such
conversion.
The same legal situation exists in respect of conversion of property of public dominion belonging
to municipal corporations, i.e., local governmental units, into patrimonial property of such
entities. InCebu Oxygen Acetylene v. Bercilles (66 SCRA 481 [1975]), the City Council of Cebu by
resolution declared a certain portion of an existing street as an abandoned road, "the same not
being included in the city development plan". Subsequently, by another resolution, the City
Council of Cebu authorized the acting City Mayor to sell the land through public bidding. Although
there was no formal and explicit declaration of conversion of property for public use into
patrimonial property, the Supreme Court said:
xxx xxx xxx
(2) Since that portion of the city street subject of petitioner's application for
registration of title was withdrawn from public use, it follows that such withdrawn
portion becomes patrimonial property which can be the object of an ordinary
contract.
Article 422 of the Civil Code expressly provides that "Property of public dominion,
when no longer intended for public use of for public service, shall form part of the
patrimonial property of the State."
Besides, the Revised Charter of the City of Cebu heretofore quoted, in very clear
and unequivocal terms, states that "Property thus withdrawn from public servitude
may be used or conveyed for any purpose for which other real property belonging
to the City may be lawfully used or conveyed."
Accordingly, the withdrawal of the property in question from public use and its
subsequent sale to the petitioner is valid. Hence, the petitioner has a registrable
title over the lot in question. (66 SCRA at 484-; emphasis supplied)
Thus, again as pointed out by Sarmiento J ., in his separate opinion, in the case of property owned
by municipal corporations simple non-use or the actual dedication of public property to some use
other than "public use" or some "public service", was sufficient legally to convert such property
into patrimonial property (Municipality of Oas v. Roa, 7 Phil. 20 [1906]- Municipality of Hinunganan
v. Director of Lands 24 Phil. 124 [1913]; Province of Zamboanga del Norte v. City of Zamboanga,
22 SCRA 1334 (1968).
I would also add that such was the case not only in respect of' property of municipal corporations
but also in respect of property of the State itself. Manresa in commenting on Article 341 of the
1889 Spanish Civil Code which has been carried over verbatim into our Civil Code by Article 422
thereof, wrote:
La dificultad mayor en todo esto estriba, naturalmente, en fijar el momento en que
los bienes de dominio publico dejan de serlo. Si la Administracion o la autoridad
competente legislative realizan qun acto en virtud del cual cesa el destino o uso
publico de los bienes de que se trata naturalmente la dificultad queda desde el
primer momento resuelta. Hay un punto de partida cierto para iniciar las relaciones
juridicas a que pudiera haber lugar Pero puede ocurrir que no haya taldeclaracion
expresa, legislativa or administrativa, y, sin embargo, cesar de hecho el destino
publico de los bienes; ahora bien, en este caso, y para los efectos juridicos que
resultan de entrar la cosa en el comercio de los hombres,' se entedera que se ha
verificado la conversion de los bienes patrimoniales?
El citado tratadista Ricci opina, respecto del antiguo Codigo italiano, por la
afirmativa, y por nuestra parte creemos que tal debe ser la soluciion. El destino de
las cosas no depende tanto de una declaracion expresa como del uso publico de
las mismas, y cuanda el uso publico cese con respecto de determinados bienes,
cesa tambien su situacion en el dominio publico. Si una fortaleza en ruina se
abandona y no se repara, si un trozo de la via publica se abandona tambien por
constituir otro nuevo an mejores condiciones....ambos bienes cesan de estar
Codigo, y leyes especiales mas o memos administrativas. (3 Manresa,
Comentarios al Codigo Civil Espanol, p. 128 [7a ed.; 1952) (Emphasis supplied)
The majority opinion says that none of the executive acts pointed to by the Government
purported, expressly or definitely, to convert the Roppongi property into patrimonial property
of the Republic. Assuming that to be the case, it is respectfully submitted that cumulative effect of
the executive acts here involved was to convert property originally intended for and devoted to
public service into patrimonial property of the State, that is, property susceptible of disposition to
and appropration by private persons. These executive acts, in their totality if not each individual
act, make crystal clear the intent of the Executive Department to effect such conversion. These
executive acts include:
(a) Administrative Order No. 3 dated 11 August 1985, which created a Committee to study the
disposition/utilization of the Government's property in Japan, The Committee was composed of
officials of the Executive Department: the Executive Secretary; the Philippine Ambassador to
Japan; and representatives of the Department of Foreign Affairs and the Asset Privatization Trust.
On 19 September 1988, the Committee recommended to the President the sale of one of the lots
(the lot specifically in Roppongi) through public bidding. On 4 October 1988, the President
approved the recommendation of the Committee.
On 14 December 1988, the Philippine Government by diplomatic note informed the Japanese
Ministry of Foreign Affairs of the Republic's intention to dispose of the property in Roppongi. The
Japanese Government through its Ministry of Foreign Affairs replied that it interposed no
objection to such disposition by the Republic. Subsequently, the President and the Committee
informed the leaders of the House of Representatives and of the Senate of the Philippines of the
proposed disposition of the Roppongi property.
(b) Executive Order No. 296, which was issued by the President on 25 July 1987. Assuming that
the majority opinion is right in saying that Executive Order No. 296 is insufficient to authorize the
sale of the Roppongi property, it is here submitted with respect that Executive Order No. 296 is
more than sufficient to indicate an intention to convert the property previously devoted to public
service into patrimonial property that is capable of being sold or otherwise disposed of
(c) Non-use of the Roppongi lot for fourteen (14) years for diplomatic or for any other public
purposes. Assuming (but only arguendo) that non-use does not, by itself, automatically convert
the property into patrimonial property. I respectfully urge that prolonged non-use, conjoined with
the other factors here listed, was legally effective to convert the lot in Roppongi into patrimonial
property of the State. Actually, as already pointed out, case law involving property of municipal
corporations is to the effect that simple non-use or the actual dedication of public property to
some use other than public use or public service, was sufficient to convert such property into
patrimonial property of the local governmental entity concerned. Also as pointed out above,
Manresa reached the same conclusion in respect of conversion of property of the public domain
of the State into property of the private domain of the State.
The majority opinion states that "abandonment cannot be inferred from the non-use alone
especially if the non-use was attributable not to the Government's own deliberate and indubitable
will but to lack of financial support to repair and improve the property" (Majority Opinion, p. 13).
With respect, it may be stressed that there is no abandonment involved here, certainly no
abandonment of property or of property rights. What is involved is the charge of the classification
of the property from property of the public domain into property of the private domain of the State.
Moreover, if for fourteen (14) years, the Government did not see fit to appropriate whatever funds
were necessary to maintain the property in Roppongi in a condition suitable for diplomatic
representation purposes, such circumstance may, with equal logic, be construed as a
manifestation of the crystalizing intent to change the character of the property.
(d) On 30 March 1989, a public bidding was in fact held by the Executive Department for the sale
of the lot in Roppongi. The circumstance that this bidding was not successful certainly does not
argue against an intent to convert the property involved into property that is disposable by
bidding.
The above set of events and circumstances makes no sense at all if it does not, as a whole, show
at least the intent on the part of the Executive Department (with the knowledge of the Legislative
Department) to convert the property involved into patrimonial property that is susceptible of being
sold.
II
Having reached an affirmative answer in respect of the first issue, it is necessary to address the
second issue of whether or not there exists legal authority for the sale or disposition of the
Roppongi property.
The majority opinion refers to Section 79(f) of the Revised Administrative Code of 1917 which
reads as follows:
SEC. 79 (f). Conveyances and contracts to which the Government is a party. In
cases in which the Government of the Republic of the Philippines is a party to any
deed or other instrument conveying the title to real estate or to any other
together with the proper recommendations, shall besubmitted to the Congress of
Government of the Philippines unless the authority therefor be expressly vested by
law in another officer. (Emphasis supplied)
The majority opinion then goes on to state that: "[T]he requirement has been retained in Section
4, Book I of the Administrative Code of 1987 (Executive Order No. 292)" which reads:
Two points need to be made in this connection. Firstly, the requirement of obtaining specific
approval of Congress when the price of the real property being disposed of is in excess of One
Hundred Thousand Pesos (P100,000.00) under the Revised Administrative Code of 1917, has
been deleted from Section 48 of the 1987 Administrative Code. What Section 48 of the present
Administrative Code refers to isauthorization by law for the conveyance. Section 48 does not
purport to be itself a source of legal authority for conveyance of real property of the Government.
For Section 48 merely specifies the official authorized to execute and sign on behalf of the
Government the deed of conveyance in case of such a conveyance.
Secondly, examination of our statute books shows that authorization by law for disposition of real
property of the private domain of the Government, has been granted by Congress both in the form
of (a) a general, standing authorization for disposition of patrimonial property of the Government;
and (b) specific legislation authorizing the disposition of particular pieces of the Government's
patrimonial property.
Standing legislative authority for the disposition of land of the private domain of the Philippines is
provided by Act No. 3038, entitled "An Act Authorizing the Secretary of Agriculture and Natural
Resources to Sell or Lease Land of the Private Domain of the Government of the Philippine
Islands (now Republic of the Philippines)", enacted on 9 March 1922. The full text of this statute is
as follows:
Be it enacted by the Senate and House of Representatives of the Philippines in
Legislature assembled and by the authority of the same:
SECTION 1. The Secretary of Agriculture and Natural Resources (now Secretary of
the Environment and Natural Resources) is hereby authorized to sell or lease land
of the private domain of the Government of the Philippine Islands, or any part
thereof, to such persons, corporations or associations as are, under the provisions
of Act Numbered Twenty-eight hundred and seventy-four, (now Commonwealth
Act No. 141, as amended) known as the Public Land Act, entitled to apply for the
purchase or lease or agricultural public land.
SECTION 2. The sale of the land referred to in the preceding section shall, if such
land is agricultural, be made in the manner and subject to the limitations
prescribed in chapters five and six, respectively, of said Public Land Act, and if it
be classified differently, in conformity with the provisions of chapter nine of said
Act: Provided, however, That the land necessary for the public service shall be
exempt from the provisions of this Act.
SECTION 3. This Act shall take effect on its approval.
Approved, March 9, 1922. (Emphasis supplied)
Lest it be assumed that Act No. 3038 refers only to agricultural lands of the private domain of the
State, it must be noted that Chapter 9 of the old Public Land Act (Act No. 2874) is now Chapter 9 of
the present Public Land Act (Commonwealth Act No. 141, as amended) and that both statutes
refer to: "any tract of land of the public domain which being neither timber nor mineral land, is
intended to be used for residential purposes or for commercial or industrial purposes other than
agricultural" (Emphasis supplied).itc-asl In other words, the statute covers the sale or lease or
residential, commercial or industrial land of the private domain of the State.
Implementing regulations have been issued for the carrying out of the provisions of Act No. 3038.
On 21 December 1954, the then Secretary of Agriculture and Natural Resources promulgated
Lands Administrative Orders Nos. 7-6 and 7-7 which were entitled, respectively: "Supplementary
Regulations Governing the Sale of the Lands of the Private Domain of the Republic of the
Philippines"; and "Supplementary Regulations Governing the Lease of Lands of Private Domain of
the Republic of the Philippines" (text in 51 O.G. 28-29 [1955]).
It is perhaps well to add that Act No. 3038, although now sixty-eight (68) years old, is still in effect
and has not been repealed.
1

Specific legislative authorization for disposition of particular patrimonial properties of the State is
illustrated by certain earlier statutes. The first of these was Act No. 1120, enacted on 26 April 1904,
which provided for the disposition of the friar lands, purchased by the Government from the
Roman Catholic Church, to bona fide settlers and occupants thereof or to other persons.
In J acinto v. Director of Lands (49 Phil. 853 [1926]), these friar lands were held to be private and
patrimonial properties of the State. Act No. 2360, enacted on -28 February 1914, authorized the
sale of the San Lazaro Estatelocated in the City of Manila, which had also been purchased by the
Government from the Roman Catholic Church. In January 1916, Act No. 2555 amended Act No.
2360 by including therein all lands and buildings owned by the Hospital and the Foundation of
San Lazaro theretofor leased by private persons, and which were also acquired by the Philippine
Government.
After the enactment in 1922 of Act No. 3038, there appears, to my knowledge, to be only one
statute authorizing the President to dispose of a specific piece of property. This statute is
Republic Act No. 905, enacted on 20 June 1953, which authorized the
President to sell an Identified parcel of land of the private domain of the National Government to
the National Press Club of the Philippines, and to other recognized national associations of
professionals with academic standing, for the nominal price of P1.00. It appears relevant to note
that Republic Act No. 905 was not an outright disposition in perpetuity of the property involved- it
provided for reversion of the property to the National Government in case the National Press Club
stopped using it for its headquarters. What Republic Act No. 905 authorized was really
a donation, and not a sale.
The basic submission here made is that Act No. 3038 provides standing legislative authorization
for disposition of the Roppongi property which, in my view, has been converted into patrimonial
property of the Republic.
2

To some, the submission that Act No. 3038 applies not only to lands of the private domain of the
State located in the Philippines but also to patrimonial property found outside the Philippines,
may appear strange or unusual. I respectfully submit that such position is not any more unusual
or strange than the assumption that Article 420 of the Civil Code applies not only to property of
the Republic located within Philippine territory but also to property found outside the boundaries
of the Republic.
It remains to note that under the well-settled doctrine that heads of Executive Departments
are alter egos of the President (Villena v. Secretary of the Interior, 67 Phil. 451 [1939]), and in view
of the constitutional power of control exercised by the President over department heads (Article
VII, Section 17,1987 Constitution), the President herself may carry out the function or duty that is
specifically lodged in the Secretary of the Department of Environment and Natural Resources
(Araneta v. Gatmaitan 101 Phil. 328 [1957]). At the very least, the President retains the power to
approve or disapprove the exercise of that function or duty when done by the Secretary of
Environment and Natural Resources.
It is hardly necessary to add that the foregoing analyses and submissions relate only to the
austere question of existence of legal power or authority. They have nothing to do with much
debated questions of wisdom or propriety or relative desirability either of the proposed
disposition itself or of the proposed utilization of the anticipated proceeds of the property
involved. These latter types of considerations He within the sphere of responsibility of the
political departments of government the Executive and the Legislative authorities.
For all the foregoing, I vote to dismiss the Petitions for Prohibition in both G.R. Nos. 92013 and
92047.
Fernan, C.J ., Narvasa, Gancayco, Cortes and Medialdea, J J ., concurring.

Separate Opinions
thin air.

(1) ...
state.
1
to sell the same.

1
2
3
dedicated.
4

5
6

property"
7
contrary;
8
9
and (3) All natural
10


Gutierrez, Jr.
Code:
Roppongi property.
I
Lands, supra.)
conversion.
xxx xxx xxx
contract.
22 SCRA 1334 (1968).
thereof, wrote:
bidding.
sold.
II
Roppongi property.
reads as follows:
as follows:
agricultural" (Emphasis supplied). In other words, the statute covers the sale or lease or
1

Government.
2

of the Republic.
92047.
Footnotes
Padilla, J.
1 Art. 422 of the Civil Code provides:
"Property of public dominion, when no longer intended for public use or public
service, shall form part of the patrimonial property of the State. (341a)
Sarmiento, J.
1 Municipality of Oas v. Roa, 7 Phil. 20 (1906).
2 Municipality of Hinunangan v. Director of Lands, 24 Phil. 124 (11913). The
property involved here was a fortress.
3 Harty v. Municipality of Victoria, 13 Phil. 152 (1909).
4 See also II TOLENTINO, CIVIL CODE OF THE PHILIPPINES 39 (1972 ed.), citing 3
Manresa III. See also Province of Zamboanga del Norte v. City of Zamboanga, No.
L-24440, March 28, 1968, 22 SCRA 1334.
5 Ignacio v. Director of Lands, 108 Phil. 335, 339 (1960).
6 Cebu Oxygen & Acetylene Co., Inc. vs. Bercilles, No. L-40474, August 29, 1975, 66
SCRA 481.
7 G.R. Nos. 92013 & 92047, 21.
8 Salas v. Jarencio, No. L-29788, August 30, 1972, 46 SCRA 734; Rabuco v.
Villegas, No.
L-24916, February 28, 1974, 55 SCRA 658.
9 See Lianga Bay Logging Co., Inc. v. Lopez Enage, No. L-30637, July 16, 1987, 152
SCRA 80.
10 CONST., art. XII, sec. 2.
Feliciano, J.
1 We are orally advised by the Office of the Director of Lands that Act No. 3038 is
very much in effect and that the Bureau of Lands continues to date to act under it.
See also, in this connection, Sections 2 and 4 of Republic Act No. 477, enacted 9
June 1950 and as last amended by B.P. Blg 233. This statute government the
disposition of lands of the public domain and of the private domain of the State,
including lands previously vested in the United States Alien Property Custodian
and transferred to the Republic of the Philippines.
2 Since Act No. 3038 established certain qualifications for applicants for purchase
or lease of land of private domain of the government, it is relevant to note that
Executive Order No. 296, promulgated at a time when the President was still
exercising legislative authority, provides as follows:
"Sec. 1. The provisions of Republic Act No. 1789, as amended, and of other laws,
to the contrary notwithstanding, the above mentioned properties can be made
available for sale, lease or any other manner of disposition to non-Filipino
citizens." (Emphasis supplied)

SUPREME COURT
Manila
EN BANC

G.R. No. L-24661 February 28, 1974
BENJAMIN RABUCO, VENANCIO G. GUIRNALDA, LEODEGARIO ALOBA, ELEUTERIO IBAES,
ROGELIO ARAGONES, ASENCIO ABANCO, BENEDICTO BAUTISTA, MAXIMO AQUINO, PAULINA
DALUMIAS, NENITA RAMOS, GUILLERMO VARIAS, EMELDA ARELLANO, PEDRO BILBAO,
ERNESTO BONBALES, ROSITA OCA BAUTISTA, TERESITA ESTEBAN, JOSE BENJAMIN,
LORENZO BELDEVER, LEODEGARIO TUMLOS, PATRICIO MALATE, ANSELMO CORTEJOS,
ANACLETA ADUCA, SALOME BARCELONA, ENRICO CELSO, IRENE CAMBA, MARIA COLLADO,
RUFINO CANTIL, ANANIAS CANILLO, MAXIMO DE CASTRO, CEFERINO SALAZAR, PATRIA
ANAYA, FELISA VELASCO, IGNACIO SARASPI, FLAVIO DINAGUIT, REMEDIOS BAROMETRO,
PEDRO GEBANIA, RUBEN GEGABALEN, EMETRIO EDAO, LUCIANO ARAGONES, ADRIANO
ESTRELLADO, BONIFACIO EVARISTO, ISIDORO EDORIA, TIMOTEA ECARUAN, BIENVENIDO
COLLADO, CENON DAJUYA, RAFAELA FERNANDEZ, ALFONSO FAUSTINO, AVELINO GARCIA,
RICARDO GUIRNALDA, FRANCISCO HENERAL, CARMEN KIONESALA, FELICIANO LUMACTOD,
DOLORES VILLACAMPA, NARCISO LIM, EUFEMIO LEGASPI, MATILDE MABAQUIAO, EULOGIO
VIA, MACARIO ANTONIO, JEREMIAS DE LA CRUZ, MARTIN MANGABAN, SIMEON MANGABA T.,
CARIDAD MER MILLA, FELIX MAHINAY, NAPOLEON MARZAN, ISAIAS MANALASTAS, JOSEFA
CORVERA, JOSE APRUEDO, ARSENIO REYES, EUGENIA A. ONO, CORNELIO OPOLENCIA,
SEDECIAS PASCUA, ABUNDIO PAGUNTALAN, ESPERANZA DE QUIROS, CRESENCIO SALEM,
MOISES FERNANDEZ, FORTUNATO GONZALES, SOCORRO R. VALEN, RODOLFO COLLADO,
VENERIO CELSO, GREGORIO DE LA CRUZ, CELSO ALCERA, NICOLAS ARAGONES, JOSEFINA
MANANSALA, ADELAIDA CALASIN , JOSE AGUSTIN, TOMAS JOSEPH, MANUEL DADOR,
SERGIO LIPATON, ERNESTO SUMAYDING, MARCELINO DIOSO, MIGUEL ALCERA, CRISANTA
ENAMER, JUAN VIADO HILARION CHIOCO, EUROPIA CABAHUG, VICTORIA DUERO,
CONSORCIO ENOC, MAMERTO GAMONIDO, BONIFACIO SABADO, MARIA INTROLIZO, HENRY
ENOLBA, REYNALDO LIM, FORTUNATO LIPON, ERNESTO MALLOS, FLORENTINA PATRICIO,
MAMERTO PALAPALA, RAMON DE PERALTA, JOSE PARRAS, APOLINARIO YAP, JUAN ROQUE,
FELIX ROQUE, GLICERIA SALAZAR, MIGUELA SABIO, AGAPITO SAYAS, PAULINO SARROZA,
PACIFICO JUANICO, LIBERADO TULAWAN, LIGAYA LAUS, ERNESTO VERZOSA, LEOPOLDO
BERNALES, JAIME VISTA, ISAIAS AMURAO, BENITA M. BARENG, and BRIGIDA
SANCHEZ,petitioners,
vs.
HON. ANTONIO J. VILLEGAS substituted by HON. RAMON BAGATSING as CITY MAYOR OF
MANILA, HON. LADISLAO J. TOLENTINO, City Engineer of Manila, their agents, employees,
assistants and all persons acting under them; HON. BENJAMIN GOZON, Administrator, Land
Reform Authority substituted by HON CONRADO ESTRELLA as Secretary of the Department of
Agrarian Reforms and his agents, employees, assistants and all persons acting under his
orders, respondent.
1

G.R. No. L-24915 February 28, 1974
BENJAMIN RABUCO, et al., (the same co-petitioners in L-24661), petitioners,
vs.
MANILA, et al., (the same co-respondents in L-24661), respondents.
G.R. No. L-24916 February 28, 1974
BENJAMIN RABUCO, et al. (the same co-petitioners in L-24661), petitioners-appellants,
vs.
MANILA, et al., (the same co-respondents in L-24661), respondents-appellees.
Manuel D. Melotindos and Ricardo M. Guirnalda for petitioners.
Second Assistant City Fiscal Manuel T. Reyes for respondents.

TEEHANKEE, J .:p
The Court herein upholds the constitutionality of Republic Act 3120 on the strength of the established
doctrine that the subdivision of communal land of the State (although titled in the name of the municipal
corporation) and conveyance of the resulting subdivision lots by sale on installment basis to bona
fide occupants by Congressional authorization and disposition does not constitute infringements of the
due process clause or the eminent domain provisions of the Constitution but operates simply as a
manifestation of the legislature's right of control and power to deal with State property.
The origin and background of the cases at bar which deal with the decisive issue of constitutionality of
Republic Act 3120 enacted on June 17, 1961, as raised by respondent mayor of Manila in resisting
petitioners' pleas that respondent mayor not only lacks the authority to demolish their houses or eject
them as tenants and bona fide occupants of a parcel of land in San Andres, Malate
2
but is also expressly
prohibited from doing so by section 2 of the Act, may be summarized from the Court of
Appeals'
3
certification of resolution of May 31, 1965 as follows:
Case L-24916 involves petitioners' appeal to the Court of Appeals
4
from the decision of the Manila court
of first instance dismissing their petition for injunction and mandamus to enjoin the demolition of their
houses and the ejectment from the public lots in question and to direct respondent administrator of the
Land Authority (now Secretary of Agrarian Reform) to implement the provisions of Republic Act 3120 for
the subdivision and sale on installment basis of the subdivided lots to them as the tenants and bona fide
occupants thereof, and instead ordering their ejectment.
Case L-24915 involves petitioners' independent petition for injunction filed directly with the Court of
Appeals January 29, 1965
5
to forestall the demolition overnight of their houses pursuant to the order of
demolition set for January 30, 1965 at 8 a.m. issued by respondents city officials pending the elevation of
their appeal. The appellate court gave due course thereto and issued the writ of preliminary injunction as
prayed for.
The two cases were ordered "consolidated into one" since they were "unavoidably interlaced." The
appellate court, finding that the constitutionality of Republic Act 3120 was "the dominant and inextricable
issue in the appeal" over which it had no jurisdiction and that the trial court incorrectly "sidetracked" the
issue, thereafter certified the said cases to this Court, as follows:
The validity of Republic Act 3120 which was seasonably posed in issue in the court below
was sidetracked by the trial court, thus:
The constitutionality of Republic Act No. 3120 need not be passed upon
as the principal question in issue is whether the houses of the petitioners
are public nuisances, which the court resolved in the affirmative. As a
matter of fact even if the petitioners were already the owners of the land
on which their respected houses are erected, the respondent city officials
could cause the removal thereof as they were constructed in violation of
city ordinances and constitute public nuisance.
It is significant to note, however, that what is sought by the respondent City Mayor and
City Engineer of Manila is not only the demolition of the petitioners' houses in the
premises in controversy, but their ejectment as well. Moreover, Republic Act 3120 does
intend not only the dismissal of the ejectment proceedings against the petitioners from
the land in controversy upon their motion, but as well that any demolition order issued
against them shall also have to be dismissed. The law says:
Upon approval of this Act no ejectment proceedings against any tenants
or bona fide occupant shall be instituted and any proceedings against
any such tenant or bona fideoccupant shall be dismissed upon motion of
the defendant. Provided, That any demolition order directed against any
tenant or bona fide occupant thereof, shall be dismissed. (Sec. 2, R. A.
3120).
Indeed, the petitioners-appellants, who contended in the court below that it was not
necessary to decide on the validity or constitutionality of the law, now asseverate that
'Republic Act No. 3120 expressly prohibits ejectment and demolition of petitioners' home.'
The petitioners' argument in their appeal to this Court runs as follows:
1. Petitioners-appellants are entitled to the remedies of injunction
and mandamus, being vested with lawful possession over Lot 21-B,
Block 610, granted by law, Republic Act No. 3120.
2. Civil Case No. 56092 has not been barred by any prior judgment, as
wrongly claimed by respondents-appellees.
3. Ejectment and demolition against petitioners-appellants are unlawful
and clearly prohibited by Republic Act No. 3120.
The defense of the respondents Mayor and City Engineer of Manila to arguments 2 and 3
is the invalidity of the said Republic Act 3120 for being in violation of the Constitutional
prohibition against the deprivation of property without due process of law and without just
compensation. So that even if argument 2 interposed by the petitioners-appellants should
be rejected, still they may claim a right, by virtue of the aforesaid provisions of Republic
Act 3120, to continue possession and occupation of the premises and the lifting of the
order of demolition issued against them. The constitutionality of the said Republic Act
3120, therefore, becomes the dominant and inextricable issue of the appeal.
Case L-24661 for the continuation and maintenance of the writ of preliminary injunction previously issued
by the Court of Appeals for preservation of the status quo was filed by petitioners directly with this Court
on June 21, 1965, pending transmittal of the records of Cases L-24915 and L-24916 to this Court as
certified by the Court of Appeals which declared itself without jurisdiction over the principal and decisive
issue of constitutionality of Republic Act 3120.
The Court gave due course thereto and on August 17, 1965 issued upon a P1,000 bond the writ of
preliminary injunction as prayed for enjoining respondents "from demolishing and/or continuing to
demolish the houses of herein petitioners situated in Lot No. 21-B, Block No. 610 of the Cadastral Survey
of the City of Manila, or from performing any act constituting an interference in or disturbance of their
present possession."
The records of two cases certified by the appellate court, L-24915 and L-24916, were eventually
forwarded to this Court which per its resolution of August 24, 1965 ordered that they be docketed and be
considered together with case L-24661.
In the early morning of April 19, 1970, a large fire of undetermined origin gutted the Malate area including
the lot on which petitioners had built their homes and dwellings. Respondents city officials then took over
the lot and kept petitioners from reconstructing or repairing their burned dwellings. At petitioners' instance,
the Court issued on June 17, 1970 a temporary restraining order enjoining respondents city officials "from
performing any act constituting an interference in or disturbance of herein petitioners' possession of Lot
No. 21-B, Block No. 610, of the Cadastral Survey of the City of Manila" as safeguarded them under the
Court's subsisting preliminary injunction of August 17, 1965.
The "dominant and inextricable issue" at bar, as correctly perceived by the appellate court is the
constitutionality of Republic Act 3120 whereby Congress converted the lot in question together with
another lot in San Andres, Malate "which are reserved as communal property" into "disposable or
alienable lands of the State to be placed under the administration and disposal of the Land Tenure
Administration" for subdivision into small lots not exceeding 120 square meters per lot for sale on
installment basis to the tenants or bona fide occupants thereof
6
and expressly prohibited ejectment and
demolition of petitioners' homes under section 2 of the Act as quoted in the appellate court's certification
resolution, supra.
The incidental issue seized upon by the trial court as a main issue for "sidetracking" the decisive issue of
constitutionality, to wit, that petitioners' houses as they stood at the time of its judgment in 1965 "were
constructed in violation of city ordinances and constituted public nuisances" whose removal could be
ordered "even if petitioners were already the owners of the land on which their respective houses are
erected" has become moot with the burning down of the petitioners' houses in the fire of April 19, 1970.
If the Act is invalid and unconstitutional for constituting deprivation of property without due process of law
and without just compensation as contended by respondents city officials, then the trial court's refusal to
enjoin ejectment and demolition of petitioners' houses may be upheld. Otherwise, petitioners' right under
the Act to continue possession and occupation of the premises and to the lifting and dismissal of the
order of demolition issued against them must be enforced and the trial court's judgment must be set
aside.
Respondents city officials' contention that the Act must be stricken down as unconstitutional for depriving
the city of Manila of the lots in question and providing for their sale in subdivided small lots to bona fide
occupants or tenants without payment of just compensation is untenable and without basis, since the lots
in question are manifestly owned by the city in its public and governmental capacity and are therefore
public property over which Congress had absolute control as distinguished from patrimonial property
owned by it in its private or proprietarycapacity of which it could not be deprived without due process and
without just compensation.
7

Here, Republic Act 3120 expressly declared that the properties were "reserved as communal property"
and ordered their conversion into "disposable and alienable lands of the State" for sale in small lots to the
bona fide occupants thereof. It is established doctrine that the act of classifying State property calls for
the exercise of wide discretionary legislative power which will not be interfered with by the courts.
The case of Salas vs. Jarencio
8
wherein the Court upheld the constitutionality of Republic Act 4118
whereby Congress in identical terms as in Republic Act 3120 likewise converted another city lot (Lot 1-B-
2-B of Block 557 of the cadastral survey of Manila also in Malate) which was reserved as communal
property into disposable land of the State for resale in small lots by the Land Tenure, Administration to the
bona fide occupants is controlling in the case at bar.
The Court therein reaffirmed the established general rule that "regardless of the source or classification of
land in the possession of a municipality, excepting those acquired with its own funds in its private or
corporate capacity, such property is held in trust for the State for the benefit of its inhabitants, whether it
be for governmental or proprietary purposes. It holds such lands subject to the paramount power of the
legislature to dispose of the same, for after all it owes its creation to it as an agent for the performance of
a part of its public work, the municipality being but a subdivision or instrumentality thereof for purposes of
local administration. Accordingly, the legal situation is the same as if the State itself holds the property
and puts it to a different use"
9
and stressed that "the property, as has been previously shown, was not
acquired by the City of Manila with its own funds in its private or proprietary capacity. That it has in its
name a registered title is not questioned, but this title should be deemed to be held in trust for the
State as the land covered thereby was part of the territory of the City of Manila granted by the sovereign
upon its creation."
10

There as here, the Court holds that the Acts in question (Republic Acts 4118 in Salas and Republic Act
3120 in the case at bar) were intended to implement the social justice policy of the Constitution and the
government program of land for the landless and that they were not "intended to expropriate the property
involved but merely to confirm its character as communal land of the State and to make it available for
disposition by the National Government: ... The subdivision of the land and conveyane of the resulting
subdivision lots to the occupants by Congressional authorization does not operate as an exercise of the
power of eminent domain without just compensation in violation of Section 1, subsection (2), Article III of
the Constitution,
11
but simply as a manifestationof its right and power to deal with state property."
12

Since the challenge of respondents city officials against the constitutionality of Republic Act 3120 must
fail as the City was not deprived thereby of anything it owns by acquisition with its private or corporate
funds either under the due process clause or under the eminent domain provisions of the Constitution, the
provisions of said Act must be enforced and petitioners are entitled to the injunction as prayed for
implementing the Act's prohibition against their ejectment and demolition of their houses.
WHEREFORE, the appealed decision of the lower court (in Case No. L-24916) is hereby set aside, and
the preliminary injunction heretofore issued on August 17, 1965 is hereby made permanent. The
respondent Secretary of Agrarian Reform as successor agency of the Land Tenure Administration may
now proceed with the due implementation of Republic Act 3120 in accordance with its terms and
provisions. No costs.
Makalintal, C.J., Zaldivar, Castro, Barredo, Makasiar, Antonio, Esguerra, Muoz Palma and Aquino, JJ.,
concur.
Fernandez, J., took no part.

Separate Opinions

FERNANDO, J ., concurring:
It is undoubted that the opinion of the Court penned by Justice Teehankee, with his customary lucidity
and thoroughness, is in accordance with our past decisions on the matter. Reflection on the innovation
introduced by the present Constitution on local government, did, however, give rise to doubts on my part
as to the continuing authoritativeness of Province of Zamboanga del Norte v. City of
Zamboanga
1
and Salas v. Jarencio,
2
the two principal opinions relied upon, both of which decisions were
promulgated before the effectivity of the new fundamental law. Hence this separate opinion setting forth
the reasons why I join the rest of my brethren.
1. In the declaration of principles and state policies
3
it is specifically provided: "The State shall guarantee
and promote the autonomy of local government units, especially the barrio, to ensure their fullest
development as self-reliant communities."
4
What was succinctly expressed therein was made more
definite in the article on local government.
5
Its first section reads: "The territorial and political subdivisions
of the Philippines are the provinces, cities, municipalities, and barrios."
6
Then comes this provision: "The
National Assembly shall enact a local government code which may not thereafter be amended except by
a majority vote of all its Members, defining a more responsive and accountable local government
structure with an effective system of recall, allocating among the different local government units their
powers, responsibilities, and resources, and providing for the qualifications, election and removal, term,
salaries, powers, functions, and duties of local officials, and all other matters relating to the organization
and operation of the local units. However, any change in the existing form of local government shall not
take effect until ratified by a majority of the votes cast in a plebiscite called for the purpose."
7
After which
there is this limitation on the power of local government: "No province, city, municipality, or barrio may be
created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the
criteria established in the local government code, and subject to the approval by a majority of the votes
cast in a plebiscite in the unit or units affected."
8
The autonomy of cities and municipalities is guaranteed
in these words: "(1) Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barrios, shall ensure that the acts of their component units are
with the scope of their assigned powers and functions. Highly urbanized cities, as determined by
standards established in the local government code, shall be independent of province."
9
Then comes the
last section: "Each local government unit shall have the power to create its own sources of revenue and
to levy taxes, subject to such limitations as may be provided by law."
10

The objective is thus crystal-clear and well-defined. The goal is the fullest autonomy to local government
units consistent with the basic theory of a unitary, not a federal, polity. It is the hope that thereby they will
attain "their fullest development as self-reliant communities."
11
It is more than just the expression of an
aspiration as attest by one of the articles of the Constitution devoted to such a subject.
12
It was not so
under the 1935 charter. On this point, all that appeared therein was: "The President shall ... exercise
general supervision over all local governments as may be provided by law ... .
13
According to Justice
Laurel in Planas v. Gil,
14
"the deliberation of the Constitutional Convention show that the grant of the
supervisory authority to the Chief Executive in this regard was in the nature of a compromise resulting
from the conflict of views in that body, mainly between the historical view which recognizes the right of
local self-government ... and the legal theory which sanctions the possession by the state of absolute
control over local governments .. . The result was the recognition of the power of supervision and all its
implications and the rejection of what otherwise would be an imperium in imperio to the detriment of a
strong national government."
15
For the above provision starts with the vesting of control in the President
"of all the executive departments, bureaus, or offices," as distinguished from "general supervision over all
local governments as may be provided by law."
16
The difference in wording is highly significant. So it was
stressed by the then Justice, later Chief Justice, Concepcion in Pelaez v. Auditor General:
17
"The power
of control under this provision implies the right of the President to interfere in the exercise of such
discretion as may be vested by law in the officers of the executive departments, bureaus, or offices of the
national government, as well as to act in lieu of such officers. This power isdenied by the Constitution to
the Executive, insofar as local governments are concerned. With respect to the latter, the fundamental
law permits him to wield no more authority than that of checking whether said local governments or the
officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot
interfere with local governments, so long as the same or its officers act within the scope of their authority.
He may not enact an ordinance which the municipal council has failed or refused to pass, even if it had
thereby violated a duty imposed thereto by law, although he may see to it that the corresponding
provincial officials take appropriate disciplinary action therefor. Neither may he vote, set aside or annul an
ordinance passed by said council within the scope of its jurisdiction, no matter how patently unwise it may
be. He may not even suspend an elective official of a regular municipality or take any disciplinary action
against him, except on appeal from a decision of the corresponding provincial board."
18

2. So it was that under the 1935 Constitution, the national government when acting through the executive
had only such general supervisory authority as was provided by statute. There was no restriction,
however, on the legislative body to create or to abolish local government units. What was more, the
powers vested in them could be expanded or diminished depending on the will of Congress. It could
hardly be assumed therefore that under the previous charter, they could justifiably lay claim to real
autonomy. For so long as the legislation itself took care of delineating the matters that were appropriately
within the scope of their competence, there could be no objection to its validity. No constitutional problem
arose. Things have changed radically. We start with the declared principle of the State guaranteeing and
promoting the autonomy of local government units.
19
We have likewise noted the earnestness of the
framers as to the attainment of such declared objective as set forth in the specific article
20
on the matter.
It is made obligatory on the National Assembly to enact a local government code. What is more, unlike
the general run of statutes, it cannot be amended except by a majority vote of all its members. It is made
to include "a more responsive and accountable local government structure with an effective system of
recall," with an expressed reference to "qualifications, election and removal, term, salaries, powers,
functions, and duties of local officials, [as well as] all other matters relating to the organization and
operation of local units."
21
Mention is likewise made of the "powers, responsibilities, and
resources,"
22
items that are identified with local autonomy. As if that were not enough, the last sentence
of this particular provision reads: "However, any change in the existing form of local government shall not
23
To the
extent that the last section requires that the creation, division, merger, abolition or alteration of a
boundary of a province, city, municipality, or barrio, must be in accordance with the criteria established in
the local government code and subject to the approval by a majority of the votes cast in a plebiscite in
such unit or units, the adherence to the basic principle of local self-government is quite clear.
24
Equally
significant is the stress on the competence of a province, city, municipality or barrio "to create its own
sources of revenue and to levy taxes subject to such limitations as may be provided by law."
25
The care
and circumspection with which the framers saw to the enjoyment of real local self-government not only in
terms of administration but also in terms of resources is thus manifest. Their intent is unmistakable. Unlike
the case under the 1935 Constitution, there is thus a clear manifestation of the presumption now in favor
of a local government unit. It is a well-nigh complete departure from what was. Nor should it be ignored
that a highly urbanized city "shall be independent" not only of the national government but also of a
province.
26
Would it not follow then that under the present dispensation, the moment property is
transferred to it by the national government, its control over the same should be as extensive and as
broad as possible. Considerations of the above nature gave rise to doubts on my part as to the decisions
in the Zamboanga del Norte and Salas cases still retaining unimpaired their doctrinal force. Would this be
a case of Republic Act No. 3120 being rendered inoperative by virtue of its repugnancy to the present
Constitution?
27

3. Nonetheless, such doubts were set at rest by two considerations. The opinion of Justice Teehankee
makes reference to the ratio decidendi of Salas v. Jarencio as to the trust character impressed on
communal property of a municipal corporation, even if already titled. As set forth in the opinion: "The
Court [in Salas v. Jarencio] reaffirmed the established general rule that 'regardless of the source of
classification of land in the possession of a municipality, excepting those acquired with its own funds in its
private or corporate capacity, such property is held in trust for the State for the benefit of its inhabitants,
whether it be governmental or proprietary purposes. It holds such lands subject to the paramount power
of the legislature to dispose of the same, for after all it owes its creation to it as agent for the performance
of a part of its public work, municipality being but a subdivision or instrumentality thereof for purposes of
and puts it to a different use' and stressed that 'the property, as has been previously shown, was not
name registered title is not questioned, but this title should be deemed to be held in trust for the State as
the land covered thereby was part of the territory of the City of Manila granted by the sovereign upon its
creation."
28

This is a doctrine which to my mind is unaffected by grant of extensive local autonomy under the present
Constitution. Its basis is the regalian doctrine. It is my view that under the Constitution, as was the case
under the 1935 charter, the holding of a municipal corporation as a unit of state does not impair the
plenary power of the national government exercising dominical rights to dispose of it in a manner it sees
fit, subject to applicable constitutional limitations as to the citizenship of the grantee. An excerpt from Lee
Hong Hok v. David
29
is relevant: "As there are overtones indicative of skepticism, if not of outright
rejection, of the well-known distinction in public law between the government authority possessed by the
state which is appropriately embraced in the concept of sovereignty, and its capacity to own or acquire
property, it is not inappropriate to pursue the matter further. The former comes under the heading
of imperium and the latter of dominium. The use of this term is appropriate with reference to lands held by
the state in its proprietary character. In such capacity, it may provide for the exploitation and use of lands
and other natural resources, including their disposition, except as limited by the Constitution. Dean Pound
did speak of the confusion that existed during the medieval era between such two concepts, but did note
the existence of res publicae as a corollary to dominium. As far as the Philippines was concerned, there
was a recognition by Justice Holmes in Cario v. Insular Government, a case of Philippine origin, that
'Spain in its earlier decrees embodied the universal feudal theory that all lands were held from the Crown
... .' That was a manifestation of the concept of jura regalia, which was adopted by the present
Constitution, ownership however being vested in the state as such rather than the head thereof."
30

4. Much more compelling is the reliance on the opinion of Justice Teehankee on the even more
fundamental principle of social justice, which was given further stress and a wider scope in the present
Constitution. According to the opinion of the Court: "There as here, the Court holds that the Acts in
question (Republic Act 4118 in Salasand Republic Act 3120 in the case at bar) were intended to
implement the social justice policy of the Constitution and the government program of land for the
landless and that they were not 'intended to expropriate the property involved but merely to confirm its
character as communal land of the State and to make it available for disposition by the National
Government: ... The subdivision of the land and conveyance of the resulting subdivision lots to the
occupants by Congressional authorization does not operate as an exercise of the power of eminent
domain without just compensation in violation of Section 1, subsection (2), Article III of the Constitution,
but simply as a manifestation of its right and power to deal with state property."
31
It is true of course, that
a local government unit, if expressly authorized by statute, could make use of its property in the same
manner. It does appear, however, that there was no such grant of authority. Moreover, the national
government is not only in a better position to make a reality of the social justice principle but also is
subject to less pressure on the part of the affluent, at least where the distribution of state property is
concerned. It is thus a more efficient instrument than a province, city or municipality to attain this highly
desirable goal. In an economy essentially based on capitalism, where the power of concentrated wealth
cannot be underestimated, the countervailing force exerted by a strong national government sensitive to
the needs of our countrymen, deeply mired in the morass of poverty, the disinherited of fortune, can make
itself much more effectively felt. If only for that cogent reason then, I am prepared to ignore whatever
doubts or misgivings I did entertain at the outset.
Hence this concurrence.

Separate Opinions
FERNANDO, J ., concurring:
It is undoubted that the opinion of the Court penned by Justice Teehankee, with his customary lucidity
and thoroughness, is in accordance with our past decisions on the matter. Reflection on the innovation
introduced by the present Constitution on local government, did, however, give rise to doubts on my part
as to the continuing authoritativeness of Province of Zamboanga del Norte v. City of
Zamboanga
1
and Salas v. Jarencio,
2
the two principal opinions relied upon, both of which decisions were
promulgated before the effectivity of the new fundamental law. Hence this separate opinion setting forth
the reasons why I join the rest of my brethren.
1. In the declaration of principles and state policies
3
it is specifically provided: "The State shall guarantee
and promote the autonomy of local government units, especially the barrio, to ensure their fullest
development as self-reliant communities."
4
What was succinctly expressed therein was made more
definite in the article on local government.
5
Its first section reads: "The territorial and political subdivisions
of the Philippines are the provinces, cities, municipalities, and barrios."
6
Then comes this provision: "The
National Assembly shall enact a local government code which may not thereafter be amended except by
a majority vote of all its Members, defining a more responsive and accountable local government
structure with an effective system of recall, allocating among the different local government units their
powers, responsibilities, and resources, and providing for the qualifications, election and removal, term,
salaries, powers, functions, and duties of local officials, and all other matters relating to the organization
and operation of the local units. However, any change in the existing form of local government shall not
7
After which
there is this limitation on the power of local government: "No province, city, municipality, or barrio may be
created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the
criteria established in the local government code, and subject to the approval by a majority of the votes
cast in a plebiscite in the unit or units affected."
8
The autonomy of cities and municipalities is guaranteed
in these words: "(1) Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barrios, shall ensure that the acts of their component units are
with the scope of their assigned powers and functions. Highly urbanized cities, as determined by
standards established in the local government code, shall be independent of province."
9
Then comes the
last section: "Each local government unit shall have the power to create its own sources of revenue and
to levy taxes, subject to such limitations as may be provided by law."
10

The objective is thus crystal-clear and well-defined. The goal is the fullest autonomy to local government
units consistent with the basic theory of a unitary, not a federal, polity. It is the hope that thereby they will
attain "their fullest development as self-reliant communities."
11
It is more than just the expression of an
aspiration as attest by one of the articles of the Constitution devoted to such a subject.
12
It was not so
under the 1935 charter. On this point, all that appeared therein was: "The President shall ... exercise
general supervision over all local governments as may be provided by law ... .
13
According to Justice
Laurel in Planas v. Gil,
14
"the deliberation of the Constitutional Convention show that the grant of the
supervisory authority to the Chief Executive in this regard was in the nature of a compromise resulting
from the conflict of views in that body, mainly between the historical view which recognizes the right of
local self-government ... and the legal theory which sanctions the possession by the state of absolute
control over local governments .. . The result was the recognition of the power of supervision and all its
implications and the rejection of what otherwise would be an imperium in imperio to the detriment of a
strong national government."
15
For the above provision starts with the vesting of control in the President
"of all the executive departments, bureaus, or offices," as distinguished from "general supervision over all
local governments as may be provided by law."
16
The difference in wording is highly significant. So it was
stressed by the then Justice, later Chief Justice, Concepcion in Pelaez v. Auditor General:
17
"The power
of control under this provision implies the right of the President to interfere in the exercise of such
discretion as may be vested by law in the officers of the executive departments, bureaus, or offices of the
national government, as well as to act in lieu of such officers. This power isdenied by the Constitution to
the Executive, insofar as local governments are concerned. With respect to the latter, the fundamental
law permits him to wield no more authority than that of checking whether said local governments or the
officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot
interfere with local governments, so long as the same or its officers act within the scope of their authority.
He may not enact an ordinance which the municipal council has failed or refused to pass, even if it had
thereby violated a duty imposed thereto by law, although he may see to it that the corresponding
provincial officials take appropriate disciplinary action therefor. Neither may he vote, set aside or annul an
ordinance passed by said council within the scope of its jurisdiction, no matter how patently unwise it may
be. He may not even suspend an elective official of a regular municipality or take any disciplinary action
against him, except on appeal from a decision of the corresponding provincial board."
18

2. So it was that under the 1935 Constitution, the national government when acting through the executive
had only such general supervisory authority as was provided by statute. There was no restriction,
however, on the legislative body to create or to abolish local government units. What was more, the
powers vested in them could be expanded or diminished depending on the will of Congress. It could
hardly be assumed therefore that under the previous charter, they could justifiably lay claim to real
autonomy. For so long as the legislation itself took care of delineating the matters that were appropriately
within the scope of their competence, there could be no objection to its validity. No constitutional problem
arose. Things have changed radically. We start with the declared principle of the State guaranteeing and
promoting the autonomy of local government units.
19
We have likewise noted the earnestness of the
framers as to the attainment of such declared objective as set forth in the specific article
20
on the matter.
It is made obligatory on the National Assembly to enact a local government code. What is more, unlike
the general run of statutes, it cannot be amended except by a majority vote of all its members. It is made
to include "a more responsive and accountable local government structure with an effective system of
recall," with an expressed reference to "qualifications, election and removal, term, salaries, powers,
functions, and duties of local officials, [as well as] all other matters relating to the organization and
operation of local units."
21
Mention is likewise made of the "powers, responsibilities, and
resources,"
22
items that are identified with local autonomy. As if that were not enough, the last sentence
of this particular provision reads: "However, any change in the existing form of local government shall not
23
To the
extent that the last section requires that the creation, division, merger, abolition or alteration of a
boundary of a province, city, municipality, or barrio, must be in accordance with the criteria established in
the local government code and subject to the approval by a majority of the votes cast in a plebiscite in
such unit or units, the adherence to the basic principle of local self-government is quite clear.
24
Equally
significant is the stress on the competence of a province, city, municipality or barrio "to create its own
sources of revenue and to levy taxes subject to such limitations as may be provided by law."
25
The care
and circumspection with which the framers saw to the enjoyment of real local self-government not only in
terms of administration but also in terms of resources is thus manifest. Their intent is unmistakable. Unlike
the case under the 1935 Constitution, there is thus a clear manifestation of the presumption now in favor
of a local government unit. It is a well-nigh complete departure from what was. Nor should it be ignored
that a highly urbanized city "shall be independent" not only of the national government but also of a
province.
26
Would it not follow then that under the present dispensation, the moment property is
transferred to it by the national government, its control over the same should be as extensive and as
broad as possible. Considerations of the above nature gave rise to doubts on my part as to the decisions
in the Zamboanga del Norte and Salas cases still retaining unimpaired their doctrinal force. Would this be
a case of Republic Act No. 3120 being rendered inoperative by virtue of its repugnancy to the present
Constitution?
27

3. Nonetheless, such doubts were set at rest by two considerations. The opinion of Justice Teehankee
makes reference to the ratio decidendi of Salas v. Jarencio as to the trust character impressed on
communal property of a municipal corporation, even if already titled. As set forth in the opinion: "The
Court [in Salas v. Jarencio] reaffirmed the established general rule that 'regardless of the source of
classification of land in the possession of a municipality, excepting those acquired with its own funds in its
private or corporate capacity, such property is held in trust for the State for the benefit of its inhabitants,
whether it be governmental or proprietary purposes. It holds such lands subject to the paramount power
of the legislature to dispose of the same, for after all it owes its creation to it as agent for the performance
of a part of its public work, municipality being but a subdivision or instrumentality thereof for purposes of
and puts it to a different use' and stressed that 'the property, as has been previously shown, was not
name registered title is not questioned, but this title should be deemed to be held in trust for the State as
the land covered thereby was part of the territory of the City of Manila granted by the sovereign upon its
creation."
28

This is a doctrine which to my mind is unaffected by grant of extensive local autonomy under the present
Constitution. Its basis is the regalian doctrine. It is my view that under the Constitution, as was the case
under the 1935 charter, the holding of a municipal corporation as a unit of state does not impair the
plenary power of the national government exercising dominical rights to dispose of it in a manner it sees
fit, subject to applicable constitutional limitations as to the citizenship of the grantee. An excerpt from Lee
Hong Hok v. David
29
is relevant: "As there are overtones indicative of skepticism, if not of outright
rejection, of the well-known distinction in public law between the government authority possessed by the
state which is appropriately embraced in the concept of sovereignty, and its capacity to own or acquire
property, it is not inappropriate to pursue the matter further. The former comes under the heading
of imperium and the latter of dominium. The use of this term is appropriate with reference to lands held by
the state in its proprietary character. In such capacity, it may provide for the exploitation and use of lands
and other natural resources, including their disposition, except as limited by the Constitution. Dean Pound
did speak of the confusion that existed during the medieval era between such two concepts, but did note
the existence of res publicae as a corollary to dominium. As far as the Philippines was concerned, there
was a recognition by Justice Holmes in Cario v. Insular Government, a case of Philippine origin, that
'Spain in its earlier decrees embodied the universal feudal theory that all lands were held from the Crown
... .' That was a manifestation of the concept of jura regalia, which was adopted by the present
Constitution, ownership however being vested in the state as such rather than the head thereof."
30

4. Much more compelling is the reliance on the opinion of Justice Teehankee on the even more
fundamental principle of social justice, which was given further stress and a wider scope in the present
Constitution. According to the opinion of the Court: "There as here, the Court holds that the Acts in
question (Republic Act 4118 in Salasand Republic Act 3120 in the case at bar) were intended to
implement the social justice policy of the Constitution and the government program of land for the
landless and that they were not 'intended to expropriate the property involved but merely to confirm its
character as communal land of the State and to make it available for disposition by the National
Government: ... The subdivision of the land and conveyance of the resulting subdivision lots to the
occupants by Congressional authorization does not operate as an exercise of the power of eminent
domain without just compensation in violation of Section 1, subsection (2), Article III of the Constitution,
but simply as a manifestation of its right and power to deal with state property."
31
It is true of course, that
a local government unit, if expressly authorized by statute, could make use of its property in the same
manner. It does appear, however, that there was no such grant of authority. Moreover, the national
government is not only in a better position to make a reality of the social justice principle but also is
subject to less pressure on the part of the affluent, at least where the distribution of state property is
concerned. It is thus a more efficient instrument than a province, city or municipality to attain this highly
desirable goal. In an economy essentially based on capitalism, where the power of concentrated wealth
cannot be underestimated, the countervailing force exerted by a strong national government sensitive to
the needs of our countrymen, deeply mired in the morass of poverty, the disinherited of fortune, can make
itself much more effectively felt. If only for that cogent reason then, I am prepared to ignore whatever
doubts or misgivings I did entertain at the outset.
Hence this concurrence.

SUPREME COURT
Manila
EN BANC
G.R. No. 92013 July 25, 1990
SALVADOR H. LAUREL, petitioner,
vs.
RAMON GARCIA, as head of the Asset Privatization Trust, RAUL MANGLAPUS, as Secretary of
Foreign Affairs, and CATALINO MACARAIG, as Executive Secretary, respondents.
G.R. No. 92047 July 25, 1990
DIONISIO S. OJEDA, petitioner,
vs.
EXECUTIVE SECRETARY MACARAIG, JR., ASSETS PRIVATIZATION TRUST CHAIRMAN RAMON
T. GARCIA, AMBASSADOR RAMON DEL ROSARIO, et al., as members of the PRINCIPAL AND
BIDDING COMMITTEES ON THE UTILIZATION/DISPOSITION PETITION OF PHILIPPINE
GOVERNMENT PROPERTIES IN JAPAN,respondents.
Arturo M. Tolentino for petitioner in 92013.

GUTIERREZ, JR., J .:
These are two petitions for prohibition seeking to enjoin respondents, their representatives and
agents from proceeding with the bidding for the sale of the 3,179 square meters of land at 306
Roppongi, 5-Chome Minato-ku Tokyo, Japan scheduled on February 21, 1990. We granted the
prayer for a temporary restraining order effective February 20, 1990. One of the petitioners (in G.R.
No. 92047) likewise prayes for a writ of mandamus to compel the respondents to fully disclose to
the public the basis of their decision to push through with the sale of the Roppongi property
inspire of strong public opposition and to explain the proceedings which effectively prevent the
participation of Filipino citizens and entities in the bidding process.
The oral arguments in G.R. No. 92013, Laurel v. Garcia, et al. were heard by the Court on March 13,
1990. After G.R. No. 92047, Ojeda v. Secretary Macaraig, et al. was filed, the respondents were
required to file a comment by the Court's resolution dated February 22, 1990. The two petitions
were consolidated on March 27, 1990 when the memoranda of the parties in the Laurel case were
deliberated upon.
The Court could not act on these cases immediately because the respondents filed a motion for
an extension of thirty (30) days to file comment in G.R. No. 92047, followed by a second motion for
an extension of another thirty (30) days which we granted on May 8, 1990, a third motion for
extension of time granted on May 24, 1990 and a fourth motion for extension of time which we
granted on June 5, 1990 but calling the attention of the respondents to the length of time the
petitions have been pending. After the comment was filed, the petitioner in G.R. No. 92047 asked
for thirty (30) days to file a reply. We noted his motion and resolved to decide the two (2) cases.
I
The subject property in this case is one of the four (4) properties in Japan acquired by the
Philippine government under the Reparations Agreement entered into with Japan on May 9, 1956,
the other lots being:
(1) The Nampeidai Property at 11-24 Nampeidai-machi, Shibuya-ku, Tokyo which has an area of
approximately 2,489.96 square meters, and is at present the site of the Philippine Embassy
Chancery;
(2) The Kobe Commercial Property at 63 Naniwa-cho, Kobe, with an area of around 764.72 square
meters and categorized as a commercial lot now being used as a warehouse and parking lot for
the consulate staff; and
(3) The Kobe Residential Property at 1-980-2 Obanoyama-cho, Shinohara, Nada-ku, Kobe, a
residential lot which is now vacant.
The properties and the capital goods and services procured from the Japanese government for
national development projects are part of the indemnification to the Filipino people for their
losses in life and property and their suffering during World War II.
The Reparations Agreement provides that reparations valued at $550 million would be payable in
twenty (20) years in accordance with annual schedules of procurements to be fixed by the
Philippine and Japanese governments (Article 2, Reparations Agreement). Rep. Act No. 1789, the
Reparations Law, prescribes the national policy on procurement and utilization of reparations and
development loans. The procurements are divided into those for use by the government
sector and those for private parties in projects as the then National Economic Council shall
determine. Those intended for the private sector shall be made available by sale to Filipino
citizens or to one hundred (100%) percent Filipino-owned entities in national development
projects.
The Roppongi property was acquired from the Japanese government under the Second Year
Schedule and listed under the heading "Government Sector", through Reparations Contract No.
300 dated June 27, 1958. The Roppongi property consists of the land and building "for the
Chancery of the Philippine Embassy" (Annex M-D to Memorandum for Petitioner, p. 503). As
intended, it became the site of the Philippine Embassy until the latter was transferred to
Nampeidai on July 22, 1976 when the Roppongi building needed major repairs. Due to the failure
of our government to provide necessary funds, the Roppongi property has remained undeveloped
since that time.
A proposal was presented to President Corazon C. Aquino by former Philippine Ambassador to
Japan, Carlos J. Valdez, to make the property the subject of a lease agreement with a Japanese
firm - Kajima Corporation which shall construct two (2) buildings in Roppongi and one (1)
building in Nampeidai and renovate the present Philippine Chancery in Nampeidai. The
consideration of the construction would be the lease to the foreign corporation of one (1) of the
buildings to be constructed in Roppongi and the two (2) buildings in Nampeidai. The other
building in Roppongi shall then be used as the Philippine Embassy Chancery. At the end of the
lease period, all the three leased buildings shall be occupied and used by the Philippine
government. No change of ownership or title shall occur. (See Annex "B" to Reply to Comment)
The Philippine government retains the title all throughout the lease period and thereafter.
However, the government has not acted favorably on this proposal which is pending approval and
ratification between the parties. Instead, on August 11, 1986, President Aquino created a
committee to study the disposition/utilization of Philippine government properties in Tokyo and
Kobe, Japan through Administrative Order No. 3, followed by Administrative Orders Numbered 3-
A, B, C and D.
On July 25, 1987, the President issued Executive Order No. 296 entitling non-Filipino citizens or
entities to avail of separations' capital goods and services in the event of sale, lease or
disposition. The four properties in Japan including the Roppongi were specifically mentioned in
the first "Whereas" clause.
Amidst opposition by various sectors, the Executive branch of the government has been pushing,
with great vigor, its decision to sell the reparations properties starting with the Roppongi lot. The
property has twice been set for bidding at a minimum floor price of $225 million. The first bidding
was a failure since only one bidder qualified. The second one, after postponements, has not yet
materialized. The last scheduled bidding on February 21, 1990 was restrained by his Court. Later,
the rules on bidding were changed such that the $225 million floor price became merely a
suggested floor price.
The Court finds that each of the herein petitions raises distinct issues. The petitioner in G.R. No.
92013 objects to the alienation of the Roppongi property to anyone while the petitioner in G.R. No.
92047 adds as a principal objection the alleged unjustified bias of the Philippine government in
favor of selling the property to non-Filipino citizens and entities. These petitions have been
consolidated and are resolved at the same time for the objective is the same - to stop the sale of
the Roppongi property.
The petitioner in G.R. No. 92013 raises the following issues:
(1) Can the Roppongi property and others of its kind be alienated by the Philippine Government?;
and
(2) Does the Chief Executive, her officers and agents, have the authority and jurisdiction, to sell
the Roppongi property?
Petitioner Dionisio Ojeda in G.R. No. 92047, apart from questioning the authority of the
government to alienate the Roppongi property assails the constitutionality of Executive Order No.
296 in making the property available for sale to non-Filipino citizens and entities. He also
questions the bidding procedures of the Committee on the Utilization or Disposition of Philippine
Government Properties in Japan for being discriminatory against Filipino citizens and Filipino-
owned entities by denying them the right to be informed about the bidding requirements.
II
In G.R. No. 92013, petitioner Laurel asserts that the Roppongi property and the related lots were
acquired as part of the reparations from the Japanese government for diplomatic and consular
use by the Philippine government. Vice-President Laurel states that the Roppongi property is
classified as one of public dominion, and not of private ownership under Article 420 of the Civil
Code (See infra).
The petitioner submits that the Roppongi property comes under "property intended for public
service" in paragraph 2 of the above provision. He states that being one of public dominion, no
ownership by any one can attach to it, not even by the State. The Roppongi and related properties
were acquired for "sites for chancery, diplomatic, and consular quarters, buildings and other
improvements" (Second Year Reparations Schedule). The petitioner states that they continue to
be intended for a necessary service. They are held by the State in anticipation of an opportune
use. (Citing 3 Manresa 65-66). Hence, it cannot be appropriated, is outside the commerce of man,
or to put it in more simple terms, it cannot be alienated nor be the subject matter of contracts
(Citing Municipality of Cavite v. Rojas, 30 Phil. 20 [1915]). Noting the non-use of the Roppongi
property at the moment, the petitioner avers that the same remains property of public dominion so
long as the government has not used it for other purposes nor adopted any measure constituting
a removal of its original purpose or use.
The respondents, for their part, refute the petitioner's contention by saying that the subject
property is not governed by our Civil Code but by the laws of Japan where the property is located.
They rely upon the rule of lex situs which is used in determining the applicable law regarding the
acquisition, transfer and devolution of the title to a property. They also invoke Opinion No. 21,
Series of 1988, dated January 27, 1988 of the Secretary of Justice which used the lex situs in
explaining the inapplicability of Philippine law regarding a property situated in Japan.
The respondents add that even assuming for the sake of argument that the Civil Code is
applicable, the Roppongi property has ceased to become property of public dominion. It has
become patrimonial property because it has not been used for public service or for diplomatic
purposes for over thirteen (13) years now (Citing Article 422, Civil Code) and because
the intention by the Executive Department and the Congress to convert it to private use has been
manifested by overt acts, such as, among others: (1) the transfer of the Philippine Embassy to
Nampeidai (2) the issuance of administrative orders for the possibility of alienating the four
government properties in Japan; (3) the issuance of Executive Order No. 296; (4) the enactment by
the Congress of Rep. Act No. 6657 [the Comprehensive Agrarian Reform Law] on June 10, 1988
which contains a provision stating that funds may be taken from the sale of Philippine properties
in foreign countries; (5) the holding of the public bidding of the Roppongi property but which
failed; (6) the deferment by the Senate in Resolution No. 55 of the bidding to a future date; thus an
acknowledgment by the Senate of the government's intention to remove the Roppongi property
from the public service purpose; and (7) the resolution of this Court dismissing the petition
in Ojeda v. Bidding Committee, et al., G.R. No. 87478 which sought to enjoin the second bidding of
the Roppongi property scheduled on March 30, 1989.
III
In G.R. No. 94047, petitioner Ojeda once more asks this Court to rule on the constitutionality of
Executive Order No. 296. He had earlier filed a petition in G.R. No. 87478 which the Court
dismissed on August 1, 1989. He now avers that the executive order contravenes the
constitutional mandate to conserve and develop the national patrimony stated in the Preamble of
the 1987 Constitution. It also allegedly violates:
(1) The reservation of the ownership and acquisition of alienable lands of the public domain to
Filipino citizens. (Sections 2 and 3, Article XII, Constitution; Sections 22 and 23 of Commonwealth
Act 141).itc-asl
(2) The preference for Filipino citizens in the grant of rights, privileges and concessions covering
the national economy and patrimony (Section 10, Article VI, Constitution);
(3) The protection given to Filipino enterprises against unfair competition and trade practices;
(4) The guarantee of the right of the people to information on all matters of public concern
(Section 7, Article III, Constitution);
(5) The prohibition against the sale to non-Filipino citizens or entities not wholly owned by Filipino
citizens of capital goods received by the Philippines under the Reparations Act (Sections 2 and 12
of Rep. Act No. 1789); and
(6) The declaration of the state policy of full public disclosure of all transactions involving public
interest (Section 28, Article III, Constitution).
Petitioner Ojeda warns that the use of public funds in the execution of an unconstitutional
executive order is a misapplication of public funds He states that since the details of the bidding
for the Roppongi property were never publicly disclosed until February 15, 1990 (or a few days
before the scheduled bidding), the bidding guidelines are available only in Tokyo, and the
accomplishment of requirements and the selection of qualified bidders should be done in Tokyo,
interested Filipino citizens or entities owned by them did not have the chance to comply with
Purchase Offer Requirements on the Roppongi. Worse, the Roppongi shall be sold for a minimum
price of $225 million from which price capital gains tax under Japanese law of about 50 to 70% of
the floor price would still be deducted.
IV
The petitioners and respondents in both cases do not dispute the fact that the Roppongi site and
the three related properties were through reparations agreements, that these were assigned to the
government sector and that the Roppongi property itself was specifically designated under the
Reparations Agreement to house the Philippine Embassy.
The nature of the Roppongi lot as property for public service is expressly spelled out. It is dictated
by the terms of the Reparations Agreement and the corresponding contract of procurement which
bind both the Philippine government and the Japanese government.
There can be no doubt that it is of public dominion unless it is convincingly shown that the
property has become patrimonial. This, the respondents have failed to do.
As property of public dominion, the Roppongi lot is outside the commerce of man. It cannot be
alienated. Its ownership is a special collective ownership for general use and enjoyment, an
application to the satisfaction of collective needs, and resides in the social group. The purpose is
not to serve the State as a juridical person, but the citizens; it is intended for the common and
public welfare and cannot be the object of appropration. (Taken from 3 Manresa, 66-69; cited in
Tolentino, Commentaries on the Civil Code of the Philippines, 1963 Edition, Vol. II, p. 26).
The applicable provisions of the Civil Code are:
ART. 419. Property is either of public dominion or of private ownership.
ART. 420. The following things are property of public dominion
(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks shores roadsteads, and others of similar
character;
for some public service or for the development of the national wealth.
ART. 421. All other property of the State, which is not of the character stated in the
preceding article, is patrimonial property.
The Roppongi property is correctly classified under paragraph 2 of Article 420 of the Civil Code as
property belonging to the State and intended for some public service.
Has the intention of the government regarding the use of the property been changed because the
lot has been Idle for some years? Has it become patrimonial?
The fact that the Roppongi site has not been used for a long time for actual Embassy service does
not automatically convert it to patrimonial property. Any such conversion happens only if the
property is withdrawn from public use (Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481
[1975]). A property continues to be part of the public domain, not available for private
appropriation or ownership until there is a formal declaration on the part of the government to
withdraw it from being such (Ignacio v. Director of Lands, 108 Phil. 335 [1960]).
The respondents enumerate various pronouncements by concerned public officials insinuating a
change of intention. We emphasize, however, that an abandonment of the intention to use the
Roppongi property for public service and to make it patrimonial property under Article 422 of the
Civil Code must be definite Abandonment cannot be inferred from the non-use alone specially if
the non-use was attributable not to the government's own deliberate and indubitable will but to a
lack of financial support to repair and improve the property (See Heirs of Felino Santiago v.
Lazaro, 166 SCRA 368 [1988]). Abandonment must be a certain and positive act based on correct
legal premises.
A mere transfer of the Philippine Embassy to Nampeidai in 1976 is not relinquishment of the
Roppongi property's original purpose. Even the failure by the government to repair the building in
Roppongi is not abandonment since as earlier stated, there simply was a shortage of government
funds. The recent Administrative Orders authorizing a study of the status and conditions of
government properties in Japan were merely directives for investigation but did not in any way
signify a clear intention to dispose of the properties.
Executive Order No. 296, though its title declares an "authority to sell", does not have a provision
in its text expressly authorizing the sale of the four properties procured from Japan for the
government sector. The executive order does not declare that the properties lost their public
character. It merely intends to make the properties available to foreigners and not to Filipinos
alone in case of a sale, lease or other disposition. It merely eliminates the restriction under Rep.
Act No. 1789 that reparations goods may be sold only to Filipino citizens and one hundred (100%)
percent Filipino-owned entities. The text of Executive Order No. 296 provides:
Section 1. The provisions of Republic Act No. 1789, as amended, and of other laws
to the contrary notwithstanding, the above-mentioned properties can be made
available for sale, lease or any other manner of disposition to non-Filipino citizens
or to entities owned by non-Filipino citizens.
Executive Order No. 296 is based on the wrong premise or assumption that the Roppongi and the
three other properties were earlier converted into alienable real properties. As earlier stated, Rep.
Act No. 1789 differentiates the procurements for the government sector and the private sector
(Sections 2 and 12, Rep. Act No. 1789). Only the private sector properties can be sold to end-users
who must be Filipinos or entities owned by Filipinos. It is this nationality provision which was
amended by Executive Order No. 296.
Section 63 (c) of Rep. Act No. 6657 (the CARP Law) which provides as one of the sources of funds
for its implementation, the proceeds of the disposition of the properties of the Government in
foreign countries, did not withdraw the Roppongi property from being classified as one of public
dominion when it mentions Philippine properties abroad. Section 63 (c) refers to properties which
are alienable and not to those reserved for public use or service. Rep Act No. 6657, therefore,
does not authorize the Executive Department to sell the Roppongi property. It merely enumerates
possible sources of future funding to augment (as and when needed) the Agrarian Reform Fund
created under Executive Order No. 299. Obviously any property outside of the commerce of man
cannot be tapped as a source of funds.
The respondents try to get around the public dominion character of the Roppongi property by
insisting that Japanese law and not our Civil Code should apply.
It is exceedingly strange why our top government officials, of all people, should be the ones to
insist that in the sale of extremely valuable government property, Japanese law and not Philippine
law should prevail. The Japanese law - its coverage and effects, when enacted, and exceptions to
its provision is not presented to the Court It is simply asserted that the lex loci rei sitae or
Japanese law should apply without stating what that law provides. It is a ed on faith that Japanese
law would allow the sale.
We see no reason why a conflict of law rule should apply when no conflict of law situation exists.
A conflict of law situation arises only when: (1) There is a dispute over the title or ownership of an
immovable, such that the capacity to take and transfer immovables, the formalities of conveyance,
the essential validity and effect of the transfer, or the interpretation and effect of a conveyance,
are to be determined (See Salonga, Private International Law, 1981 ed., pp. 377-383); and (2) A
foreign law on land ownership and its conveyance is asserted to conflict with a domestic law on
the same matters. Hence, the need to determine which law should apply.
In the instant case, none of the above elements exists.
The issues are not concerned with validity of ownership or title. There is no question that the
property belongs to the Philippines. The issue is the authority of the respondent officials to validly
dispose of property belonging to the State. And the validity of the procedures adopted to effect its
sale. This is governed by Philippine Law. The rule of lex situs does not apply.
The assertion that the opinion of the Secretary of Justice sheds light on the relevance of the lex
situsrule is misplaced. The opinion does not tackle the alienability of the real properties procured
through reparations nor the existence in what body of the authority to sell them. In discussing
who are capableof acquiring the lots, the Secretary merely explains that it is the foreign law which
should determinewho can acquire the properties so that the constitutional limitation on
acquisition of lands of the public domain to Filipino citizens and entities wholly owned by
Filipinos is inapplicable. We see no point in belaboring whether or not this opinion is correct. Why
should we discuss who can acquire the Roppongi lot when there is no showing that it can be
sold?
The subsequent approval on October 4, 1988 by President Aquino of the recommendation by the
investigating committee to sell the Roppongi property was premature or, at the very least,
conditioned on a valid change in the public character of the Roppongi property. Moreover, the
approval does not have the force and effect of law since the President already lost her legislative
powers. The Congress had already convened for more than a year.
Assuming for the sake of argument, however, that the Roppongi property is no longer of public
dominion, there is another obstacle to its sale by the respondents.
There is no law authorizing its conveyance.
Section 79 (f) of the Revised Administrative Code of 1917 provides
Section 79 (f ) Conveyances and contracts to which the Government is a party.
In cases in which the Government of the Republic of the Philippines is a party to
any deed or other instrument conveying the title to real estate or to any other
together with the proper recommendations, shall be submitted to the Congress of
Government of the Philippines unless the Government of the Philippines unless
the authority therefor be expressly vested by law in another officer. (Emphasis
supplied)
The requirement has been retained in Section 48, Book I of the Administrative Code of 1987
(Executive Order No. 292).
It is not for the President to convey valuable real property of the government on his or her own
sole will. Any such conveyance must be authorized and approved by a law enacted by the
Congress. It requires executive and legislative concurrence.
Resolution No. 55 of the Senate dated June 8, 1989, asking for the deferment of the sale of the
Roppongi property does not withdraw the property from public domain much less authorize its
sale. It is a mere resolution; it is not a formal declaration abandoning the public character of the
Roppongi property. In fact, the Senate Committee on Foreign Relations is conducting hearings on
Senate Resolution No. 734 which raises serious policy considerations and calls for a fact-finding
investigation of the circumstances behind the decision to sell the Philippine government
properties in Japan.
The resolution of this Court in Ojeda v. Bidding Committee, et al., supra, did not pass upon the
constitutionality of Executive Order No. 296. Contrary to respondents' assertion, we did not
uphold the authority of the President to sell the Roppongi property. The Court stated that the
constitutionality of the executive order was not the real issue and that resolving the constitutional
question was "neither necessary nor finally determinative of the case." The Court noted that
"[W]hat petitioner ultimately questions is the use of the proceeds of the disposition of the
Roppongi property." In emphasizing that "the decision of the Executive to dispose of the
Roppongi property to finance the CARP ... cannot be questioned" in view of Section 63 (c) of Rep.
Act No. 6657, the Court did not acknowledge the fact that the property became alienable nor did it
indicate that the President was authorized to dispose of the Roppongi property. The resolution
should be read to mean that in case the Roppongi property is re-classified to be patrimonial and
alienable by authority of law, the proceeds of a sale may be used for national economic
development projects including the CARP.
Moreover, the sale in 1989 did not materialize. The petitions before us question the proposed 1990
sale of the Roppongi property. We are resolving the issues raised in these petitions, not the
issues raised in 1989.
Having declared a need for a law or formal declaration to withdraw the Roppongi property from
public domain to make it alienable and a need for legislative authority to allow the sale of the
property, we see no compelling reason to tackle the constitutional issues raised by petitioner
Ojeda.
The Court does not ordinarily pass upon constitutional questions unless these questions are
properly raised in appropriate cases and their resolution is necessary for the determination of the
case (People v. Vera, 65 Phil. 56 [1937]). The Court will not pass upon a constitutional question
although properly presented by the record if the case can be disposed of on some other ground
such as the application of a statute or general law (Siler v. Louisville and Nashville R. Co., 213 U.S.
175, [1909], Railroad Commission v. Pullman Co., 312 U.S. 496 [1941]).
The petitioner in G.R. No. 92013 states why the Roppongi property should not be sold:
The Roppongi property is not just like any piece of property. It was given to the
Filipino people in reparation for the lives and blood of Filipinos who died and
suffered during the Japanese military occupation, for the suffering of widows and
orphans who lost their loved ones and kindred, for the homes and other properties
lost by countless Filipinos during the war. The Tokyo properties are a monument
to the bravery and sacrifice of the Filipino people in the face of an invader; like the
monuments of Rizal, Quezon, and other Filipino heroes, we do not expect
economic or financial benefits from them. But who would think of selling these
monuments? Filipino honor and national dignity dictate that we keep our
properties in Japan as memorials to the countless Filipinos who died and suffered.
Even if we should become paupers we should not think of selling them. For it
would be as if we sold the lives and blood and tears of our countrymen. (Rollo-
G.R. No. 92013, p.147)
The petitioner in G.R. No. 92047 also states:
Roppongi is no ordinary property. It is one ceded by the Japanese government in
atonement for its past belligerence for the valiant sacrifice of life and limb and for
deaths, physical dislocation and economic devastation the whole Filipino people
endured in World War II.
It is for what it stands for, and for what it could never bring back to life, that its
significance today remains undimmed, inspire of the lapse of 45 years since the
war ended, inspire of the passage of 32 years since the property passed on to the
Philippine government.
Roppongi is a reminder that cannot should not be dissipated ... (Rollo-92047,
p. 9)
It is indeed true that the Roppongi property is valuable not so much because of the inflated prices
fetched by real property in Tokyo but more so because of its symbolic value to all Filipinos
veterans and civilians alike. Whether or not the Roppongi and related properties will eventually be
sold is a policy determination where both the President and Congress must concur. Considering
the properties' importance and value, the laws on conversion and disposition of property of public
dominion must be faithfully followed.
WHEREFORE, IN VIEW OF THE FOREGOING, the petitions are GRANTED. A writ of prohibition is
issued enjoining the respondents from proceeding with the sale of the Roppongi property in
Tokyo, Japan. The February 20, 1990 Temporary Restraining Order is made PERMANENT.
SO ORDERED.
Melencio-Herrera, Paras, Bidin, Grio-Aquino and Regalado, J J ., concur.

Separate Opinions

thin air.

(1) ...
state.
1
to sell the same.

1
2
3
dedicated.
4

5
6

property"
7
contrary;
8
9
and (3) All natural
10


Gutierrez, Jr.
Code:
Roppongi property.
I
Lands, supra.)
conversion.
xxx xxx xxx
contract.
22 SCRA 1334 (1968).
thereof, wrote:
bidding.
sold.
II
Roppongi property.
reads as follows:
as follows:
agricultural" (Emphasis supplied).itc-asl In other words, the statute covers the sale or lease or
1

Government.
2

of the Republic.
92047.

Separate Opinions
thin air.

(1) ...
state.
1
to sell the same.

1
2
3
dedicated.
4

5
6

property"
7
contrary;
8
9
and (3) All natural
10


Gutierrez, Jr.
Code:
Roppongi property.
I
Lands, supra.)
conversion.
xxx xxx xxx
contract.
22 SCRA 1334 (1968).
thereof, wrote:
bidding.
sold.
II
Roppongi property.
reads as follows:
as follows:
agricultural" (Emphasis supplied). In other words, the statute covers the sale or lease or
1

Government.
2

of the Republic.
92047.
Footnotes
Padilla, J.
1 Art. 422 of the Civil Code provides:
"Property of public dominion, when no longer intended for public use or public
service, shall form part of the patrimonial property of the State. (341a)
Sarmiento, J.
1 Municipality of Oas v. Roa, 7 Phil. 20 (1906).
2 Municipality of Hinunangan v. Director of Lands, 24 Phil. 124 (11913). The
property involved here was a fortress.
3 Harty v. Municipality of Victoria, 13 Phil. 152 (1909).
4 See also II TOLENTINO, CIVIL CODE OF THE PHILIPPINES 39 (1972 ed.), citing 3
Manresa III. See also Province of Zamboanga del Norte v. City of Zamboanga, No.
L-24440, March 28, 1968, 22 SCRA 1334.
5 Ignacio v. Director of Lands, 108 Phil. 335, 339 (1960).
6 Cebu Oxygen & Acetylene Co., Inc. vs. Bercilles, No. L-40474, August 29, 1975, 66
SCRA 481.
7 G.R. Nos. 92013 & 92047, 21.
8 Salas v. Jarencio, No. L-29788, August 30, 1972, 46 SCRA 734; Rabuco v.
Villegas, No.
L-24916, February 28, 1974, 55 SCRA 658.
9 See Lianga Bay Logging Co., Inc. v. Lopez Enage, No. L-30637, July 16, 1987, 152
SCRA 80.
10 CONST., art. XII, sec. 2.
Feliciano, J.
1 We are orally advised by the Office of the Director of Lands that Act No. 3038 is
very much in effect and that the Bureau of Lands continues to date to act under it.
See also, in this connection, Sections 2 and 4 of Republic Act No. 477, enacted 9
June 1950 and as last amended by B.P. Blg 233. This statute government the
disposition of lands of the public domain and of the private domain of the State,
including lands previously vested in the United States Alien Property Custodian
and transferred to the Republic of the Philippines.
2 Since Act No. 3038 established certain qualifications for applicants for purchase
or lease of land of private domain of the government, it is relevant to note that
Executive Order No. 296, promulgated at a time when the President was still
exercising legislative authority, provides as follows:
"Sec. 1. The provisions of Republic Act No. 1789, as amended, and of other laws,
to the contrary notwithstanding, the above mentioned properties can be made
available for sale, lease or any other manner of disposition to non-Filipino
citizens." (Emphasis supplied)

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Ladera v. HodgesG.R. No. 8027-R, September 23, 1952, Vol. 48, No.

12, Official Gazette 5374Reyes,

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