G.R. No.

111988 October 14, 1994

ASSOCIATED LABOR UNIONS (ALU)-TUCP in
behalf of its members at AMS FARMING
CORPORATION,
petitioner,
vs.
VOLUNTARY
ARBITRATOR
ROSALINA
LETRONDO-MONTEJO
and
AMS
FARMING
CORPORATION, respondent.
MENDOZA, J.:
This is a petition for certiorari to set aside the
decision dated July 19, 1993 of public respondent
Voluntary Arbitrator Rosalina Letrondo-Montejo
insofar as it dismissed the claim of petitioner's
members for holiday pay for December 4, 1992,
which had been declared a special day for the
holding of Sangguniang Kabataan election.
The facts are as follows:
On December 27, 1990, petitioner Associated Labor
Unions (ALU-TUCP and private respondent AMS
Farming Corporation entered into a five-year
Collective
Bargaining
Agreement
beginning
November
1,
1990
and
ending midnight of October 31, 1995. The CBA
covers the regular daily-paid rank-and-file employees
of private respondent AMS Farming Corp. at Sampao,
Kapalong, Davao del Norte and Magatos, Asuncion,
Davao del Norte.
Art. VII, sec 3. of the CBA provides:
New Year, Maundy Thursday, Good
Friday, Araw ng Kagitingan, 1st of
May, 12th of June, Araw ng Dabaw,
4th of July, Last Sunday of August,
1st November, 30th of November,
25th
of December, 30th of
December and the days designated
by law for holding referendum and
local/national election shall be
considered paid regular holidays.
Consequently, they shall receive
their basic pay even if they do not
work on those days. Any employee

required to work on these holidays

shall be paid at last TWO HUNDRED
PERCENT (200%) of his daily wage.
Covered employees performing
overtime work on these days shall
be entitled to another THIRTY
PERCENT (30%) overtime pay. It is
understood however, that any
covered employee who shall be
absent for more than one day
immediately preceding the paid
holiday shall not be entitled to the
holiday pay.
The President of the Philippines declared December
4, 1992 a "special day" for the holding of election for
Sangguniang Kabataan (SK) throughout the nation.
Employees covered by the CBA subsequently filed
claims for the payment to them of holiday pay for
that day. Private respondent, however, refused their
claims on the ground that December 4, 1992 was not
a regular holiday within the contemplation of the
CBA.
The matter was eventually submitted to voluntary
arbitration. At the conference held on February 19,
1993, the parties agreed, among others things, to
submit the following issue:
Is the Sangguniang Kabataan
Election Day considered a regular
holiday for purpose of said Section
3, Article VII of the CBA?
In connection with this issue, they agreed that the
Sangguniang Kabataan Election Day was a holiday as
decreed by the President of the Philippines.
The parties presented position papers and thereafter
submitted the case for resolution.
On July 19, 1993, public respondent rendered an
"Award" 1 in which, while holding employees who had
become regular employees on November 1, 1990
entitled to salary increases under the CBA,
nonetheless dismissed their claim for holiday pay for
December 4, 1992 on the ground that the
Sangguniang Kabataan election "by any stretch of

the imagination cannot be considered as a local

election within the meaning of CBA because not all
people can vote in the said election but only qualified
youths." According to the Voluntary Arbitrator, "A
'local election' is generally understood to mean the
election by the people of their local leaders like the
governors, mayors, members of the provincial and
municipal councils, and barangay officials. And when
a local election is held, the day is declared a nonworking holiday. This is our experience in local and
national elections. In the case of the Sangguniang
Kabataan (SK) elections, it was a working holiday.
Except for the qualified youthful voters, not
everybody noticed said election as not everyone
voted in the said election."
Hence, this petition, the only issue in which is
whether the election for the Sangguniang Kabataan
on December 4, 1992 was a "local/national election"
within the contemplation of Art. VII, sec. 3 of the CBA
so as to entitle petitioner's members, who are
employed at the AMS Farming Corp. to the payment
of holiday pay for that day.
We hold that it is and that, in denying petitioner's
claim, respondent Voluntary Arbitrator denied
members of petitioner union substantial justice as a
result of her erroneous interpretation of the CBA,
thereby justifying judicial review. 2
First. The Sangguniang Kabataan (SK) is part of the
local government structure. The Local Government
Code (Rep. Act. No. 7160) creates in every barangay
a Sangguniang Kabataan composed of a chairman,
seven (7) members, a secretary and a treasurer. 3
The chairman and the seven members are elected by
the Katipunan ng Kabataan, which is composed of
citizens of the Philippines residing in the barangay for
at least six (6) months, who are between the ages of
15 and 21 and who are registered as members. 4 The
chairman of the SK is an ex officio member of the
Sangguniang Baranggay with the same powers
duties, functions and privileges as the regular
members of the Sangguniang Barangay. 5 The
President of the Pederasyon ng mga Sangguniang
Kabataan, which is imposed of the SK chairmen of
the sangguniang kabataan of the barangays in the
province, city, or municipality, is an ex officio

member
of
the
Sangguniang
Panlalawigan,
Sangguniang Panlungsod, and Sangguniang Bayan. 6
Hence, as the Solicitor General points out, the
election for members of the SK may properly be
considered a "local election" within the meaning of
Art. VII, sec 3 of the CBA and the day on which it is
held to be a holiday, thereby entitling petitioners
members at the AMS Farming Corp. to the payment
of holiday on such day.
Second. The Voluntary Arbitrator held, however, that
the election for members of the SK cannot be
considered a local election as the election for
Governors , Vice Governors, Mayors and Vice Mayors
and the various local legislative assemblies
(sanggunians) because the SK election is participated
in only by the youth who are between the ages of 15
and 21 and for this reason the day is not a
nonworking holiday.
To begin with, it is not true that December 4, 1992
was not a nonworking holiday. It was a nonworking
holiday and this was announced in the media. 7 In
Proclamation No. 118 dated December 2, 1992
President Ramos declared the day as "a special day
through the country on the occasion of the
Sangguniang Kabataan Elections" and enjoined all
"local government units through their respective
Chief Local Executives [to] extend all possible
assistance and support to ensure the smooth conduct
of the general elections."
A "special day" is a "special day", as provided by the
Administrative Code of 1987. 8 On the other hand,
the term "general elections" means, in the context of
SK elections, the regular elections for members of
the SK, as distinguished from the special elections for
such officers. 9
Moreover, the fact that only those between 15 and
21 take part in the election for members of the SK
does not make such election any less a regular local
election. The Constitution provides, for example, for
the sectoral representatives in the House of
Representatives of, among others, women and youth.
10
Only voters belonging to the relevant sectors can
take part in the election of their representatives. Yet

it cannot be denied that such election is a regular

national election and the day set for its holding, a
holiday.
Third. Indeed, the CBA provision in question merely
reiterates the provision on paid holidays. Thus, the
Labor Code provides:
Art. 94. Right to holiday pay. (a)
Every worker shall be paid his
regular daily wage during regular
holidays except in retail and
service establishments regularly
employing less than ten (10)
workers;
(b) The employer may require an
employee to work on any holiday
but such employee shall be paid a
compensation equivalent to twice
his regular rate; and
(c) As used in this Article, "holiday"
includes: New Years Day, Maundy
Thursday, Good Friday, the ninth of
April, the first of May, the twelfth of
June, the fourth of July, the thirtieth
of November, the twenty-fifth and
the thirtieth of December, and the
day designated by law for holding
a general election.
As already explained, the phrase "general election"
means regular local and national elections.
Consequently, whether in the context of the CBA or
the Labor Code, December 4, 1992 was a holiday for
which holiday pay should be paid by respondent
employer.
WHEREFORE, the decision dated July 19, 1993 of
public respondent Rosalina Letrondo-Montejo, insofar
as it dismissed petitioner's claim for holiday pay, is
SET ASIDE and private respondent is ORDERED to
pay petitioner's members their regular holiday pay
for December 4, 1992 in accordance with Art. VII,
sec. 3 of the Collective Bargaining Agreement.

SO ORDERED.

Regional Trial Court, Bangui, Ilocos Norte. 2 The

presiding judge of the Regional Trial Court, however,
inhibited himself from acting on the appeal due to his
close association with petitioner. 3

G.R. No. 124893 April 18, 1997

LYNETTE
G.
GARVIDA,
petitioner,
vs.
FLORENCIO G. SALES, JR., THE HONORABLE
COMMISSION
ON
ELECTIONS,
ELECTION
OFFICER DIONISIO F. RIOS and PROVINCIAL
SUPERVISOR NOLI PIPO, respondents.
PUNO, J.:
Petitioner Lynette G. Garvida seeks to annul and set
aside the order dated May 2, 1996 of respondent
Commission on Elections (COMELEC) en banc
suspending her proclamation as the duly elected
Chairman of the Sangguniang Kabataan of Barangay
San Lorenzo, Municipality of Bangui, Ilocos Norte.
The facts are undisputed. The Sangguniang Kabataan
(SK) elections nationwide was scheduled to be held
on May 6, 1996. On March 16, 1996, petitioner
applied for registration as member and voter of the
Katipunan ng Kabataan of Barangay San Lorenzo,
Bangui, Ilocos Norte. The Board of Election Tellers,
however, denied her application on the ground that
petitioner, who was then twenty-one years and ten
(10) months old, exceeded the age limit for
membership in the Katipunan ng Kabataan as laid
down in Section 3 [b] of COMELEC Resolution No.
2824.
On April 2, 1996, petitioner filed a "Petition for
Inclusion as Registered Kabataang Member and
Voter" with the Municipal Circuit Trial Court, BanguiPagudpud-Adams-Damalneg, Ilocos Norte. In a
decision dated April 18, 1996, the said court found
petitioner qualified and ordered her registration as
member and voter in the Katipunan ng Kabataan. 1
The Board of Election Tellers appealed to the

On April 23, 1996, petitioner filed her certificate of

candidacy for the position of Chairman, Sangguniang
Kabataan, Barangay San Lorenzo, Municipality of
Bangui, Province of Ilocos Norte. In a letter dated
April 23, 1996, respondent Election Officer Dionisio F.
Rios, per advice of Provincial Election Supervisor Noli
Pipo, 4 disapproved petitioner's certificate of
candidacy again due to her age. 5 Petitioner,
however, appealed to COMELEC Regional Director
Filemon A. Asperin who set aside the order of
respondents and allowed petitioner to run. 6
On May 2, 1996, respondent Rios issued a
memorandum to petitioner informing her of her
ineligibility and giving her 24 hours to explain why
her certificate of candidacy should not be
disapproved. 7 Earlier and without the knowledge of
the COMELEC officials, private respondent Florencio
G. Sales, Jr., a rival candidate for Chairman of the
Sangguniang Kabataan, filed with the COMELEC en
banc a "Petition of Denial and/or Cancellation of
Certificate of Candidacy" against petitioner Garvida
for falsely representing her age qualification in her
certificate of candidacy. The petition was sent by
facsimile 8 and registered mail on April 29, 1996 to
the Commission on Elections National Office, Manila.
On May 2, 1996, the same day respondent Rios
issued the memorandum to petitioner, the COMELEC
en banc issued an order directing the Board of
Election Tellers and Board of Canvassers of Barangay
San Lorenzo to suspend the proclamation of
petitioner in the event she won in the election. The
order reads as follows:
Acting on the Fax "Petition for
Denial And/Or Cancellation of
Certificate
of
Candidacy"
by
petitioner Florencio G. Sales, Jr.
against
Lynette
G.
Garvida,
received on April 29, 1996, the
pertinent allegations of which
reads:

xxx xxx xxx

5. That the said respondent is
disqualified to become a voter and
a candidate for the SK for the
reason that she will be more than
twenty-one (21) years of age on
May 6, 1996; that she was born on
June 11, 1974 as can be gleaned
from her birth certificate, copy of
which is hereto attached and
marked as Annex "A";
6. That in filing her certificate of
candidacy as candidate for SK of
Bgy. San Lorenzo, Bangui, Ilocos
Norte,
she
made
material
representation which is false and
as such, she is disqualified; that
her certificate of candidacy should
not be given due course and that
said candidacy must be cancelled;
xxx xxx xxx
the Commission, it appearing that
the petition is meritorious, hereby
DIRECTS the Board of Election
Tellers/Board of Canvassers of
Barangay San Lorenzo, Bangui,
Ilocos Norte, to suspend the
proclamation of Lynette G. Garvida
in the event she garners the
highest number of votes for the
position of Sangguniang Kabataan
[sic].
Meantime, petitioner is hereby
required to submit immediately ten
(10) copies of his petition and to
pay the filing and legal research
fees in the amount of P510.00.
SO ORDERED.

On May 6, 1996, election day, petitioner garnered 78

votes as against private respondent's votes of 76. 10
In accordance with the May 2, 1996 order of the

COMELEC en banc, the Board of Election Tellers did

not proclaim petitioner as the winner. Hence, the
instant petition for certiorari was filed on May 27,
1996.
On June 2, 1996, however, the Board of Election
Tellers proclaimed petitioner the winner for the
position of SK chairman, Barangay San Lorenzo,
Bangui, Ilocos Norte. 11 The proclamation was
"without prejudice to any further action by the
Commission on Elections or any other interested
party." 12 On July 5, 1996, petitioner ran in the
Pambayang Pederasyon ng mga Sangguniang
Kabataan for the municipality of Bangui, Ilocos Norte.
She won as Auditor and was proclaimed one of the
elected officials of the Pederasyon. 13
Petitioner raises two (2) significant issues: the first
concerns the jurisdiction of the COMELEC en banc to
act on the petition to deny or cancel her certificate of
candidacy; the second, the cancellation of her
certificate of candidacy on the ground that she has
exceeded the age requirement to run as an elective
official of the SK.
I
Section 532 (a) of the Local Government Code of
1991 provides that the conduct of the SK elections is
under the supervision of the COMELEC and shall be
governed by the Omnibus Election Code. 14 The
Omnibus Election Code, in Section 78, Article IX,
governs the procedure to deny due course to or
cancel a certificate of candidacy, viz:
Sec. 78. Petition to deny due
course to or cancel a certificate of
candidacy. A verified petition
seeking to deny due course or to
cancel a certificate of candidacy
may be filed by any person
exclusively on the ground that any
material representation contained
therein as required under Section
74 hereof is false. The petition may
be filed at any time not later than
twenty-five days from the time of
filing of the certificate of candidacy

and shall be decided, after due

notice and hearing, not later than
fifteen days before election.
In relation thereto, Rule 23 of the COMELEC
Rules of Procedure provides that a petition
to deny due course to or cancel a certificate
of candidacy for an elective office may be
filed with the Law Department of the
COMELEC on the ground that the candidate
has made a false material representation in
his certificate. The petition may be heard
and evidence received by any official
designated by the COMELEC after which the
case shall be decided by the COMELEC itself.
15

Under the same Rules of Procedure, jurisdiction over

a petition to cancel a certificate of candidacy lies
with the COMELEC sitting in Division, not en banc.
Cases before a Division may only be entertained by
the COMELEC en banc when the required number of
votes to reach a decision, resolution, order or ruling
is not obtained in the Division. Moreover, only
motions to reconsider decisions, resolutions, orders
or rulings of the COMELEC in Division are resolved by
the COMELEC en banc. 16 It is therefore the COMELEC
sitting in Divisions that can hear and decide election
cases. This is clear from Section 3 of the said Rules
thus:
Sec. 3. The Commission Sitting in
Divisions. The Commission shall
sit in two (2) Divisions to hear and
decide protests or petitions in
ordinary actions, special actions,
special cases, provisional remedies,
contempt and special proceedings
except in accreditation of citizens'
arms of the Commission. 17
In the instant case, the COMELEC en banc did not
refer the case to any of its Divisions upon receipt of
the petition. It therefore acted without jurisdiction or
with grave abuse of discretion when it entertained
the petition and issued the order of May 2, 1996. 18
II

The COMELEC en banc also erred when it failed to

note that the petition itself did not comply with the
formal requirements of pleadings under the
COMELEC Rules of Procedure. These requirements
are:

In the instant case, the subject petition was not in

proper form. Only two (2) copies of the petition were
filed with the COMELEC. 19 Also, the COMELEC en
banc issued its Resolution on the basis of the petition
transmitted by facsimile, not by registered mail.

Sec. 1. Filing of Pleadings. Every

pleading, motion and other papers
must be filed in ten (10) legible
copies. However, when there is
more than one respondent or
protestee,
the
petitioner
or
protestant must file additional
number of copies of the petition or
protest as there are additional
respondents or protestees.

A facsimile or fax transmission is a process involving

the transmission and reproduction of printed and
graphic matter by scanning an original copy, one
elemental area at a time, and representing the shade
or tone of each area by a specified amount of electric
current. 20 The current is transmitted as a signal over
regular telephone lines or via microwave relay and is
used by the receiver to reproduce an image of the
elemental area in the proper position and the correct
shade. 21 The receiver is equipped with a stylus or
other device that produces a printed record on paper
referred to as a facsimile. 22

Sec. 2. How Filed. The

documents referred to in the
immediately
preceding
section
must be filed directly with the
proper Clerk of Court of the
Commission personally, or, unless
otherwise provided in these Rules,
by registered mail. In the latter
case, the date of mailing is the
date of filing and the requirement
as to the number of copies must be
complied with.
Sec. 3. Form of Pleadings, etc.
(a) All pleadings allowed by these
Rules
shall
be
printed,
mimeographed or typewritten on
legal size bond paper and shall be
in English or Filipino.
xxx xxx xxx
Every pleading before the COMELEC must
be printed, mimeographed or typewritten in
legal size bond paper and filed in at least
ten (10) legible copies. Pleadings must be
filed directly with the proper Clerk of Court
of the COMELEC personally, or, by
registered mail.

Filing a pleading by facsimile transmission is not

sanctioned by the COMELEC Rules of Procedure,
much less by the Rules of Court. A facsimile is not a
genuine and authentic pleading. It is, at best, an
exact copy preserving all the marks of an original. 23
Without the original, there is no way of determining
on its face whether the facsimile pleading is genuine
and authentic and was originally signed by the party
and his counsel. It may, in fact, be a sham pleading.
The uncertainty of the authenticity of a facsimile
pleading should have restrained the COMELEC en
banc from acting on the petition and issuing the
questioned order. The COMELEC en banc should have
waited until it received the petition filed by
registered mail.
III
To write finis to the case at bar, we shall now resolve
the issue of petitioner's age.
The Katipunan ng Kabataan was originally created by
Presidential Decree No. 684 in 1975 as the
Kabataang Barangay, a barangay youth organization
composed of all residents of the barangay who were
at least 15 years but less than 18 years of age. 24 The
Kabataang Barangay sought to provide its members
a medium to express their views and opinions and
participate in issues of transcendental importance. 25

Its affairs were administered by a barangay youth

chairman together with six barangay youth leaders
who were actual residents of the barangay and were
at least 15 years but less than 18 years of age. 26 In
1983, Batas Pambansa Blg. 337, then the Local
Government Code, raised the maximum age of the
Kabataang Barangay members from "less than 18
years of age" to "not more than 21 years of age."
The Local Government Code of 1991 changed the
Kabataang Barangay into the Katipunan ng
Kabataan. It, however, retained the age limit of the
members laid down in B.P. 337 at 15 but not more
than 21 years old. 27 The affairs of the Katipunan ng
Kabataan are administered by the Sangguniang
Kabataan (SK) composed of a chairman and seven
(7) members who are elected by the Katipunan ng
Kabataan. 28 The chairman automatically becomes
ex-officio member of the Sangguniang Barangay. 29 A
member of the SK holds office for a term of three (3)
years, unless sooner removed for cause, or becomes
permanently incapacitated, dies or resigns from
office. 30
Membership in the Katipunan ng Kabataan is subject
to specific qualifications laid down by the Local
Government Code of 1991, viz:
Sec. 424. Katipunan ng Kabataan.
The katipunan ng kabataan shall
be composed of all citizens of the
Philippines actually residing in the
barangay for at least six (6)
months, who are fifteen (15) but
not more than twenty-one (21)
years of age, and who are duly
registered in the list of the
sangguniang kabataan or in the
official barangay list in the custody
of the barangay secretary.
A member of the Katipunan ng Kabataan
may
become
a
candidate
for
the
Sangguniang Kabataan if he possesses the
following qualifications:
Sec. 428. Qualifications. An
elective official of the sangguniang

kabataan must be a citizen of the

Philippines, a qualified voter of the
katipunan ng kabataan, a resident
of the barangay for at least one (1)
year immediately prior to election,
at least fifteen (15) years but not
more than twenty-one (21) years of
age on the day of his election, able
to read and write Filipino, English,
or the local dialect, and must not
have been convicted of any crime
involving moral turpitude.
Under Section 424 of the Local Government Code, a
member of the Katipunan ng Kabataan must be: (a) a
Filipino citizen; (b) an actual resident of the barangay
for at least six months; (c) 15 but not more than 21
years of age; and (d) duly registered in the list of the
Sangguniang Kabataan or in the official barangay list.
Section 428 of the Code requires that an elective
official of the Sangguniang Kabataan must be: (a) a
Filipino citizen; (b) a qualified voter in the Katipunan
ng Kabataan; (c) a resident of the barangay at least
one (1) year immediately preceding the election; (d)
at least 15 years but not more than 21 years of age
on the day of his election; (e) able to read and write;
and (f) must not have been convicted of any crime
involving moral turpitude.
For the May 6, 1996 SK elections, the COMELEC
interpreted Sections 424 and 428 of the Local
Government Code of 1991 in Resolution No. 2824
and defined how a member of the Katipunan ng
Kabataan becomes a qualified voter and an elective
official. Thus:
Sec. 3. Qualifications of a voter.
To be qualified to register as a
voter in the SK elections, a person
must be:
a) a citizen of the Philippines;
b) fifteen (15) but not more than
twenty-one (21) years of age on
election day that is, he must have
been born between May 6, 1975
and May 6, 1981, inclusive; and

c) a resident of the Philippines for

at least one (1) year and actually
residing in the barangay wherein
he proposes to vote for at least six
(6) months immediately preceding
the elections.
xxx xxx xxx
Sec. 6. Qualifications of elective
members. An elective official of
the SK must be:
a) a qualified voter;
b) a resident in the barangay for at
least one (1) year immediately
prior to the elections; and
c) able to read and write Filipino or
any Philippine language or dialect
or English.
Cases involving the eligibility or
qualification of candidates shall be
decided by the city/municipal
Election
Officer
(EO)
whose
decision shall be final.
A member of the Katipunan ng Kabataan
may be a qualified voter in the May 6, 1996
SK elections if he is: (a) a Filipino citizen; (b)
15 but not more than 21 years of age on
election day, i.e., the voter must be born
between May 6, 1975 and May 6, 1981,
inclusive; and (c) a resident of the
Philippines for at least one (1) year and an
actual resident of the barangay at least six
(6) months immediately preceding the
elections. A candidate for the SK must: (a)
possess the foregoing qualifications of a
voter; (b) be a resident in the barangay at
least one (1) year immediately preceding
the elections; and (c) able to read and write.
Except for the question of age, petitioner has all the
qualifications of a member and voter in the

Katipunan ng Kabataan and a candidate for the

Sangguniang Kabataan. Petitioner 's age is
admittedly beyond the limit set in Section 3 [b] of
COMELEC Resolution No. 2824. Petitioner, however,
argues that Section 3 [b] of Resolution No. 2824 is
unlawful, ultra vires and beyond the scope of
Sections 424 and 428 of the Local Government Code
of 1991. She contends that the Code itself does not
provide that the voter must be exactly 21 years of
age on election day. She urges that so long as she
did not turn twenty-two (22) years old, she was still
twenty-one years of age on election day and
therefore qualified as a member and voter in the
Katipunan ng Kabataan and as candidate for the SK
elections.
A closer look at the Local Government Code will
reveal a distinction between the maximum age of a
member in the Katipunan ng Kabataan and the
maximum age of an elective SK official. Section 424
of the Code sets a member's maximum age at 21
years only. There is no further provision as to when
the member shall have turned 21 years of age. On
the other hand, Section 428 provides that the
maximum age of an elective SK official is 21 years
old "on the day of his election." The addition of the
phrase "or the day of his election" is an additional
qualification. The member may be more than 21
years of age on election day or on the day he
registers as member of the Katipunan ng Kabataan.
The elective official, however, must not be more than
21 years old on the day of election. The distinction is
understandable considering that the Code itself
provides more qualifications for an elective SK official
than for a member of the Katipunan ng Kabataan.
Dissimilum dissimilis est ratio. 31 The courts may
distinguish when there are facts and circumstances
showing that the legislature intended a distinction or
qualification. 32
The qualification that a voter in the SK elections must
not be more than 21 years of age on the day of the
election is not provided in Section 424 of the Local
Government Code of 1991. In fact the term "qualified
voter" appears only in COMELEC Resolution No. 2824.
33
Since a "qualified voter" is not necessarily an
elective official, then it may be assumed that a
"qualified voter" is a "member of the Katipunan ng
Kabataan." Section 424 of the Code does not provide

that the maximum age of a member of the Katipunan

ng Kabataan is determined on the day of the
election. Section 3 [b] of COMELEC Resolution No.
2824 is therefore ultra vires insofar as it sets the age
limit of a voter for the SK elections at exactly 21
years on the day of the election.
The provision that an elective official of the SK should
not be more than 21 years of age on the day of his
election is very clear. The Local Government Code
speaks of years, not months nor days. When the law
speaks of years, it is understood that years are of
365 days each. 34 One born on the first day of the
year is consequently deemed to be one year old on
the 365th day after his birth the last day of the
year. 35 In computing years, the first year is reached
after completing the first 365 days. After the first
365th day, the first day of the second 365-day cycle
begins. On the 365th day of the second cycle, the
person turns two years old. This cycle goes on and on
in a lifetime. A person turns 21 years old on the
365th day of his 21st 365-day cycle. This means on
his 21st birthday, he has completed the entire span
of 21 365-day cycles. After this birthday, the 365-day
cycle for his 22nd year begins. The day after the
365th day is the first day of the next 365-day cycle
and he turns 22 years old on the 365th day.
The phrase "not more than 21 years of age" means
not over 21 years, not beyond 21 years. It means 21
365-day cycles. It does not mean 21 years and one
or some days or a fraction of a year because that
would be more than 21 365-day cycles. "Not more
than 21 years old" is not equivalent to "less than 22
years old," contrary to petitioner's claims. The law
does not state that the candidate be less than 22
years on election day.
In P.D. 684, the law that created the Kabataang
Barangay, the age qualification of a barangay youth
official was expressly stated as ". . . at least fifteen
years of age or over but less than eighteen . . ." 36
This provision clearly states that the youth official
must be at least 15 years old and may be 17 years
and a fraction of a year but should not reach the age
of eighteen years. When the Local Government Code
increased the age limit of members of the youth
organization to 21 years, it did not reenact the
provision in such a way as to make the youth "at

least 15 but less than 22 years old." If the intention

of the Code's framers was to include citizens less
than 22 years old, they should have stated so
expressly instead of leaving the matter open to
confusion and doubt. 37

on election day. Section 3 [b] in relation to

Section 6 [a] of COMELEC Resolution No.
2824 is not ultra vires insofar as it fixes the
maximum age of an elective SK official on
the day of his election.

Former Senator Aquilino Q. Pimentel, the sponsor and

principal author of the Local Government Code of
1991 declared that one of the reasons why the
Katipunan ng Kabataan was created and the
Kabataang Barangay discontinued was because
most, if not all, Kabataang Barangay leaders were
already over 21 years of age by the time President
Aquino assumed power. 38 They were not the "youth"
anymore. The Local Government Code of 1991 fixed
the maximum age limit at not more than 21 years 39
and the only exception is in the second paragraph of
Section 423 which reads:

In the case at bar, petitioner was born on June 11,

1974. On March 16, 1996, the day she registered as
voter for the May 6, 1996 SK elections, petitioner was
twenty-one (21) years and nine (9) months old. On
the day of the elections, she was 21 years, 11
months and 5 days old. When she assumed office on
June 1, 1996, she was 21 years, 11 months and 20
days old and was merely ten (10) days away from
turning 22 years old. Petitioner may have qualified as
a member of the Katipunan ng Kabataan but
definitely, petitioner was over the age limit for
elective SK officials set by Section 428 of the Local
Government Code and Sections 3 [b] and 6 of
Comelec Resolution No. 2824. She was ineligible to
run as candidate for the May 6, 1996 Sangguniang
Kabataan elections.

Sec. 423. Creation and Election.

a) . . . ;
b) A sangguniang kabataan official
who, during his term of office, shall
have passed the age of twenty-one
(21) years shall be allowed to serve
the remaining portion of the term
for which he was elected.
The general rule is that an elective official of
the Sangguniang Kabataan must not be
more than 21 years of age on the day of his
election. The only exception is when the
official reaches the age of 21 years during
his incumbency. Section 423 [b] of the Code
allows him to serve the remaining portion of
the term for which he was elected.
According to Senator Pimentel, the youth
leader must have "been elected prior to his
21st birthday." 40 Conversely, the SK official
must not have turned 21 years old before
his election. Reading Section 423 [b]
together with Section 428 of the Code, the
latest date at which an SK elective official
turns 21 years old is on the day of his
election. The maximum age of a youth
official must therefore be exactly 21 years

The requirement that a candidate possess the age

qualification is founded on public policy and if he
lacks the age on the day of the election, he can be
declared ineligible. 41 In the same vein, if the
candidate is over the maximum age limit on the day
of the election, he is ineligible. The fact that the
candidate was elected will not make the age
requirement directory, nor will it validate his election.
42
The will of the people as expressed through the
ballot cannot cure the vice of ineligibility. 43
The ineligibility of petitioner does not entitle private
respondent, the candidate who obtained the highest
number of votes in the May 6, 1996 elections, to be
declared elected. 44 A defeated candidate cannot be
deemed elected to the office. 45 Moreover, despite his
claims, 46 private respondent has failed to prove that
the electorate themselves actually knew of
petitioner's ineligibility and that they maliciously
voted for her with the intention of misapplying their
franchises and throwing away their votes for the
benefit of her rival candidate. 47
Neither can this Court order that pursuant to Section
435 of the Local Government Code petitioner should
be succeeded by the Sangguniang Kabataan member

who obtained the next highest number of votes in

the May 6, 1996 elections. 48 Section 435 applies
when a Sangguniang Kabataan Chairman "refuses to
assume office, fails to qualify, 49 is convicted of a
felony, voluntarily resigns, dies, is permanently
incapacitated, is removed from office, or has been
absent without leave for more than three (3)
consecutive months."

permanent appointment as Clerk III in the office of

the Municipal Planning and Development Coordinator
of the same municipality. On 10 June 1992, she
received an order from the newly proclaimed mayor,
Rolando P. Ponsica, detailing her to the Office of the
Mayor. In compliance with the order, she reported to
said office the following day.
On 19 June 1992, Zonsayda absented herself from
work allegedly to attend to family matters. She had
asked permission from the personnel officer but not
from the mayor. On 23 June 1992, Mayor Ponsica
issued Office Order No. 31, suspending Zonsayda for
one month and one day commencing on 24 June
1992 for "a simple misconduct . . . which can also be
categorized as an act of insubordination." The order
also stated that the suspension "carries with it
forfeiture of . . . benefits such as . . . salary and PERA
and leave credits during the duration of its
effectivity."

The question of the age qualification is a question of

eligibility. 50 Being "eligible" means being "legally
qualified; capable of being legally chosen." 51
Ineligibility, on the other hand, refers to the lack of
the qualifications prescribed in the Constitution or
the statutes for holding public office. 52 Ineligibility is
not one of the grounds enumerated in Section 435
for succession of the SK Chairman.
To avoid a hiatus in the office of SK Chairman, the
Court deems it necessary to order that the vacancy
be filled by the SK member chosen by the incumbent
SK members of Barangay San Lorenzo, Bangui, Ilocos
Norte by simple majority from among themselves.
The member chosen shall assume the office of SK
Chairman for the unexpired portion of the term, and
shall discharge the powers and duties, and enjoy the
rights and privileges appurtenant to said office.
IN VIEW WHEREOF, the petition is dismissed and
petitioner Lynette G. Garvida is declared ineligible for
being over the age qualification for candidacy in the
May 6, 1996 elections of the Sangguniang Kabataan,
and is ordered to vacate her position as Chairman of
the Sangguniang Kabataan of Barangay San Lorenzo,
Bangui, Ilocos Norte. The Sangguniang Kabataan
member voted by simple majority by and from
among the incumbent Sangguniang Kabataan
members of Barangay San Lorenzo, Bangui, Ilocos
Norte shall assume the office of Sangguniang
Kabataan Chairman of Barangay San Lorenzo,
Bangui, Ilocos Norte for the unexpired portion of the
term.
SO ORDERED.

G.R. No. 108232 August 23, 1993

ZONSAYDA
L.
ALINSUG,
petitioner,
vs.
REGIONAL TRIAL COURT, Branch 58, San Carlos
City, Negros Occidental, Presided by Hon.
Rolindo D. Beldia, Jr.; ROLANDO P. PONSICA as
Municipal
Mayor
of
Escalante,
Negros
Occidental; MUNICIPALITY OF ESCALANTE,
NEGROS
OCCIDENTAL,
and
PATRICIO
A.
ALVAREZ as Municipal Treasurer of Escalante,
Negros Occidental, respondents.
RESOLUTION
VITUG, J.:
The petitioner, Zonsayda L. Alinsug, had been a
regular employee of the municipal government of
Escalante, Negros Occidental, when she received a

Forthwith, Zonsayda filed with the Regional Trial

Court of Negros Occidental, in San Carlos City, a
petition, dated 07 July 1992, for "injunction with
damages and prayer for temporary restraining order
and preliminary injunction" against Mayor Ponsica
and the municipal treasurer. 1 The petitioner alleged
that since her family supported Mayor Ponsica's rival
in the 11 May 1992 elections, her suspension was an
act of "political vendetta". Further alleging that said
respondents'
acts
were
"malicious,
illegal,
unwarranted, wrongful and condemnable", petitioner
prayed for the following reliefs:
WHEREFORE, premises considered,
it is respectfully prayed to this
Honorable Court
4.1 That upon the filing of this
petition a temporary restraining
order
be
immediately
issued
directing respondents mayor and
municipality to cease and desist
from
continuing
with
the
suspension, and indefinite detail of
petitioner at his office, and,
including the respondent treasurer
to refrain from forfeiting and not
paying her salary for the period

from June 24 to July 23, 1992, and

in
the
meantime
to
return
petitioner to her position as Clerk III
in the office of the Municipal
Planning
and
Development
Coordinator;
to
restrain
respondents
mayor
and
municipality also from persecuting,
oppressing,
harassing
and
humiliating petitioner as civil
service
employee
of
the
municipality under the respondent
mayor, and also restraining them
from doing acts and things or
employing tactics, schemes or
maneuvers that would make it hard
or effect a difficulty in petitioner's
doing of her works and/or in the
performance of the official function
of her position entitled to the
emoluments thereof, until further
orders from the Honorable Court;
and after notice and hearing to
issue the corresponding writ of
preliminary injunction;
4.2 After trial on the merit, to
render
judgment
declaring
petitioner's detail at respondent's
office
per
Annex
"C"
and
suspension per Annex "D", null and
void, and making the injunction
permanent; and
4.3 Adjudging the respondents
mayor and municipality solidarily to
pay petitioner the amount of
P30,000.00 for moral damages;
P10,000.00 plus P500.00 per court
appearance of petitioner's counsel
for attorney's fee, and P3,000.00
for litigation expenses, all in
concept
of
actual
and
compensatory
damages;
P20,000.00 as exemplary damages;
and to pay the costs of this suit.
Further,
petitioner
respectfully
prays for such other proper reliefs

and remedies just and appropriate

in the premises. 2
Mayor Ponsica and the municipal treasurer filed an
answer to the petition, through private practitioner
Samuel SM Lezama, alleging that the petitioner had
not exhausted administrative remedies and that her
suspension was in accordance with law. They filed a
counterclaim for moral damages in the amount of
P200,000.00, exemplary damages for P50,000.00,
and attorney's fees of P30,000.00, plus appearance
fee of P500.00.
The foregoing elicited a motion from the petitioner,
praying that the answer be disregarded and
expunged from the record, and that the respondents
be all declared in default on the ground that since
the respondents were sued in their official capacities,
"not including their private capacities," they should
have been represented by either the municipal legal
officer or the provincial legal officer or prosecutor as
provided for by Sec. 481 (b) [i] and [3] of the Local
Government Code. It also cited Sec. 1 of Rep. Act No.
10 and Art. 177 of the Revised Penal Code which
penalizes usurpation of public authority.
The respondents opposed the motion. Manifesting
that the municipality of Escalante has no legal
officer, they asserted that both the Local
Government Code and the Administrative Code of
1987 do not have any provision "relative to the duty
of any provincial legal officer or prosecutor to
represent a municipality or its officials in suits filed
against them by an employee or a private
individual." They contended that it was "unnecessary
to provide such a provision because there (exist)
administrative and judicial rulings sustaining the
validity of the employment of a private counsel by
municipal officials. Moreover, since the petitioner
prayed for the award of moral damages," on the
strength of this Court's ruling in Albuera v. Torrens, 3
their hiring of a private counsel was justified.
On 28 August 1992, Assistant Provincial Prosecutor
Daniel M. Villaflor entered his appearance as
"counsel for Rolando P. Ponsica and Patricio A.
Alvarez in their official capacities."

With the filing of said notice at appearance, on 08

September 1992, the lower court issued an Order,
denying
petitioners
motion
to
declare
the
respondents in default and motion to expunge from
the record respondents' answer.
Acting on the motion for reconsideration filed by the
petitioner, the lower court issued the Order of 16
November 1992, denying said motion on the thesis
that since the appointment of a legal officer was
optional on the part of the municipal government
(Art. 481, third paragraph, Local Government Code)
and the municipality of Escalante had not, in fact,
designated any such legal officer, petitioner's move
to declare respondents in default "for having retained
a private counsel" was not thereby legally
sustainable.
Hence, the instant petition, which although called a
"petition for review on certiorari" in its first
paragraph, shall be treated as a special civil action of
certiorari for purposes of resolving the issues of: (a)
whether or not a private counsel may represent
municipal officials sued in their official capacities,
and (b) whether or not respondents had been in
default on account of their having filed their answer
through a private counsel.
Sec. 443 (b) of the Local Government Code (Republic
Act No. 7160), which took effect on 01 January 1992,
4
provides that, in addition to the officials
enumerated in the first paragraph thereof, the mayor
may appoint, among other officials enumerated
therein, a municipal legal officer. Section 481, Article
11 of Title V of the Code which provides for the
appointment of local officials common to all
municipalities, cities and provinces, states that "(t)he
appointment of a legal officer shall be mandatory for
the provincial and city governments and optional for
the municipal government." The same section
specifies the functions of the legal officer, and one of
them being that he shall:
(i) Represent the local government
unit in all civil actions and special
proceedings wherein the local
government unit or any official
thereof, in his official capacity, is a
party: Provided, that in actions or

proceedings where a component

city or municipality is a party
adverse
to
the
provincial
government
or
to
another
component city or municipality, a
special legal officer may be
employed to represent the adverse
party;
Indeed, it appears that the law allows a private
counsel to be hired by a municipality only when the
municipality is an adverse party in a case involving
the provincial government or another municipality or
city within the province. This provision has its
apparent origin in the ruling in De Guia v. The Auditor
General 5 where the Court held that the
municipality's authority to employ a private attorney
is expressly limited only to situations where the
provincial fiscal would be disqualified to serve and
represent it. With Sec. 1683 of the old Administrative
Code 6 as legal basis, the Court therein cited
Enriquez, Sr. v. Gimenez 7 which enumerated
instances when the provincial fiscal is disqualified to
represent in court a particular municipality; if and
when original jurisdiction of case involving the
municipality is vested in the Supreme Court, when
the municipality is a party adverse to the provincial
government or to some other municipality in the
same province, and when, in a case involving the
municipality, he, or his wife, or child, is pecuniarily
involved, as heir legatee, creditor or otherwise. 8
Thereafter, in Ramos v. Court of Appeals, 9 the Court
ruled that a municipality may not be represented by
a private law firm which had volunteered its services
gratis, in collaboration with the municipal attorney
and the fiscal, as such representation was violative
Sec. 1683 of the old Administrative Code. This strict
coherence to the letter of the law appears to have
been dictated by the fact that "the municipality
should not be burdened with expenses of hiring a
private lawyer" and that "the interests of the
municipality would be best protected if a government
lawyer handles its litigations."
But would these proscriptions include public officials?
Not necessarily. It can happen that a government
official, ostensibly acting in his official capacity and
sued in that capacity, is later held to have exceeded

his authority. On the one hand, his defense would

have then been underwritten by the people's money
which ordinarily should have been his personal
expense. On the other hand, personal liability can
attach to him without, however, his having had the
benefit of assistance of a counsel of his own choice.
In Correa v. CFI of Bulacan, 10 the Court held that in
the discharge of governmental functions, "municipal
corporations are responsible for the acts of its
officers, except if and when, the only to the extent
that, they have acted by authority of the law, and in
conformity with the requirements thereof."
In such instance, this Court has sanctioned that
representation by private counsel. In one case, We
held that where rigid adherence to the law on
representation of local officials in court actions could
deprive a party of his right to redress for a valid
grievance, the hiring of a private counsel would be
proper. 11 And, in Albuera v. Torres, 12 this Court also
said that a provincial governor sued in his official
capacity may engage the services of private counsel
when "the complaint contains other allegations and a
prayer for moral damages, which, if due from the
defendants, must be satisfied by them in their
private capacity."
We might also quote the pronouncement of the Court
in Urbano v. Chavez: 13
There
is
likewise
another
reason . . . why the Office of the
Solicitor General cannot represent
an accused in a criminal case.
Inasmuch as the State can speak
and act only by law, whatever it
does say and do must be lawful,
and that which is unlawful is not
the word or deed of the State, but
is the mere wrong or trespass of
those individual persons who
falsely speak and act in its name.
Therefore, the accused public
official should not expect the State,
through the Office of the Solicitor
General, to defend him for a
wrongful act which cannot be
attributed to the State itself. In the
same light, a public official who is

sued in a criminal case is actually

sued in his personal capacity
inasmuch as his principal, the
State, can never be the author of a
wrongful act, much less commit a
crime.
Urbano v. Chavez confronted the issue of
whether the Office of the Solicitor General
may represent its own Solicitor General in
the preliminary investigation of a criminal
action, or in a civil action for damages,
against him.
The key then to resolving the issue of
whether a local government official may
secure the services of private counsel, in an
action filed against him in his official
capacity, lies on the nature of the action and
the relief that is sought.
While the petition below was filed against
respondents
as
public
officials,
its
allegations were also aimed at questioning
certain acts that can well bring the case
beyond the mere confines of official
functions; thus
2.12 These actuations of the
respondent mayor in detailing
petitioner
to
his
office
and
eventually suspending her from
work, particularly the latter are no
doubt respondent mayor's political
vendetta
of
petitioner,
a
vengeance unleased on her for her
children's and family's not going
with and voting for him in the May
11, 1992 election and instead
supporting the candidacy of their
relative-candidate (Mr. Barcelona)
in said election, who was his
greated (sic) worry at that time.
2.13
The
aforesaid
acts
of
respondent mayor are clearly,
apparently and obviously a political
harassment
and
persecution,

appreasive
(sic),
acts
of
vindictiveness, a grave abuse of
executive
discretion,
despotic,
unjust, unwarranted, condemnable
and actionable; the indefinite detail
order
and,
especially
the
suspension, were not done in good
faith, not for a valid cause, and
done without giving petitioner
opportunity to be heard, hence,
null and void for being violative of
petitioner's legal and constitutional
right to due process. . . . . 14
The petition then went on to claim moral and
exemplary damages, as well as litigation expenses,
as shown by its prayer.
Moral damages cannot generally be awarded unless
they are the proximate result of a wrongful act or
omission. Exemplary damages, on the other hand,
are not awarded if the defendant had not acted in a
wanton, oppressive or malevolent manner nor in the
absence of gross or reckless negligence. 15 A public
official, who in the performance of his duty acts in
such fashion, does so in excess of authority, and his
actions would be ultra vires 16 that can thereby result
in an incurrence of personal liability.
All the foregoing considered, We hold that the
respondents were not improperly represented by a
private counsel, whose legal fees shall be for their
own account.
ACCORDINGLY, the instant petition is hereby
DISMISSED. The lower court is directed to proceed
with dispatch in the resolution of Special Civil Action
No. RTC-371.
SO ORDERED.

At bar is a petition for review under Rule 45 of the

Rules of Court seeking to nullify the dismissal by the
Court of Appeals of the original petition for certiorari,
prohibition and mandamus filed by the herein
petitioner against the City Mayor and City Legal
Officer of Iligan and the Samahang Optometrist sa
Pilipinas Iligan Chapter (SOPI, for brevity).
The antecedent facts leading to the filing of the
instant petition are as follows:
Petitioner applied with the Office of the City Mayor of
Iligan for a business permit. After consideration of
petitioner's application and the opposition interposed
thereto by local optometrists, respondent City Mayor
issued Business Permit No. 5342 subject to the
following conditions:
1. Since it is a corporation, Acebedo cannot
put up an optical clinic but only a
commercial store;
2. Acebedo cannot examine and/or prescribe
reading and similar optical glasses for
patients, because these are functions of
optical clinics;

G.R. No. 100152

March 31, 2000

ACEBEDO OPTICAL COMPANY, INC., petitioner,

vs.
THE HONORABLE COURT OF APPEALS, Hon.
MAMINDIARA MANGOTARA, in his capacity as
Presiding Judge of the RTC, 12th Judicial
Region,
Br.
1,
Iligan
City;
SAMAHANG
OPTOMETRIST Sa PILIPINAS Iligan City
Chapter, LEO T. CAHANAP, City Legal Officer,
and Hon. CAMILO P. CABILI, City Mayor of
Iligan, respondents.
PURISIMA, J.:

3. Acebedo cannot sell reading and similar

eyeglasses without a prescription having
first been made by an independent
optometrist
(not
its
employee)
or
independent optical clinic. Acebedo can only
sell directly to the public, without need of a
prescription,
Ray-Ban
and
similar
eyeglasses;
4. Acebedo cannot advertise optical lenses
and eyeglasses, but can advertise Ray-Ban
and similar glasses and frames;
5. Acebedo is allowed to grind lenses but
only
upon
the
prescription
of
an
independent optometrist. 1
On December 5, 1988, private respondent Samahan
ng Optometrist Sa Pilipinas (SOPI), Iligan Chapter,
through its Acting President, Dr. Frances B. Apostol,

lodged a complaint against the petitioner before the

Office of the City Mayor, alleging that Acebedo had
violated the conditions set forth in its business
permit and requesting the cancellation and/or
revocation of such permit.
Acting on such complaint, then City Mayor Camilo P.
Cabili designated City Legal Officer Leo T. Cahanap to
conduct an investigation on the matter. On July 12,
1989, respondent City Legal Officer submitted a
report to the City Mayor finding the herein petitioner
guilty of violating all the conditions of its business
permit and recommending the disqualification of
petitioner from operating its business in Iligan City.
The report further advised that no new permit shall
be granted to petitioner for the year 1989 and should
only be given time to wind up its affairs.
On July 19, 1989, the City Mayor sent petitioner a
Notice of Resolution and Cancellation of Business
Permit effective as of said date and giving petitioner
three (3) months to wind up its affairs.
On October 17, 1989, petitioner brought a petition
for certiorari, prohibition and mandamus with prayer
for restraining order/preliminary injunction against
the respondents, City Mayor, City Legal Officer and
Samahan ng Optometrists sa Pilipinas-Iligan City
Chapter (SOPI), docketed as Civil Case No. 1497
before the Regional Trial Court of Iligan City, Branch I.
Petitioner alleged that (1) it was denied due process
because it was not given an opportunity to present
its evidence during the investigation conducted by
the City Legal Officer; (2) it was denied equal
protection of the laws as the limitations imposed on
its business permit were not imposed on similar
businesses in Iligan City; (3) the City Mayor had no
authority to impose the special conditions on its
business permit; and (4) the City Legal Officer had no
authority to conduct the investigation as the matter
falls within the exclusive jurisdiction of the
Professional Regulation Commission and the Board of
Optometry.
Respondent SOPI interposed a Motion to Dismiss the
Petition on the ground of non-exhaustion of
administrative remedies but on November 24, 1989,
Presiding Judge Mamindiara P. Mangotara deferred
resolution of such Motion to Dismiss until after trial of

the case on the merits. However, the prayer for a

writ of preliminary injunction was granted.
Thereafter,
respondent
SOPI
filed
its
answer.1wphi1.nt
On May 30, 1990, the trial court dismissed the
petition for failure to exhaust administrative
remedies, and dissolved the writ of preliminary
injunction it earlier issued. Petitioner's motion for
reconsideration met the same fate. It was denied by
an Order dated June 28, 1990.
On October 3, 1990, instead of taking an appeal,
petitioner filed a petition for certiorari, prohibition
and mandamus with the Court of Appeals seeking to
set aside the questioned Order of Dismissal, branding
the same as tainted with grave abuse of discretion
on the part of the trial court.
On January 24, 1991, the Ninth Division 2 of the Court
of Appeals dismissed the petition for lack of merit.
Petitioner's motion reconsideration was also denied
in the Resolution dated May 15, 1991.
Undaunted, petitioner has come before this court via
the present petition, theorizing that:
A.
THE
RESPONDENT
COURT,
WHILE
CORRECTLY
HOLDING
THAT
THE
RESPONDENT CITY MAYOR ACTED BEYOND
HIS AUTHORITY IN IMPOSING THE SPECIAL
CONDITIONS IN THE PERMIT AS THEY HAD
NO BASIS IN ANY LAW OR ORDINANCE,
ERRED IN HOLDING THAT THE SAID SPECIAL
CONDITIONS
NEVERTHELESS
BECAME
BINDING
ON
PETITIONER
UPON
ITS
ACCEPTANCE THEREOF AS A PRIVATE
AGREEMENT OR CONTRACT.
B.
THE RESPONDENT COURT OF APPEALS
ERRED IN HOLDING THAT THE CONTRACT
BETWEEN PETITIONER AND THE CITY OF
ILIGAN WAS ENTERED INTO BY THE LATTER

IN THE PERFORMANCE OF ITS PROPRIETARY

FUNCTIONS.
The petition is impressed with merit.
Although petitioner agrees with the finding of the
Court of Appeals that respondent City Mayor acted
beyond the scope of his authority in imposing the
assailed conditions in subject business permit, it has
excepted to the ruling of the Court of Appeals that
the said conditions nonetheless became binding on
petitioner, once accepted, as a private agreement or
contract. Petitioner maintains that the said special
conditions are null and void for being ultra vires and
cannot be given effect; and therefore, the principle of
estoppel cannot apply against it.
On the other hand, the public respondents, City
Mayor and City Legal Officer, private respondent
SOPI and the Office of the Solicitor General contend
that as a valid exercise of police power, respondent
City Mayor has the authority to impose, as he did,
special conditions in the grant of business permits.
Police power as an inherent attribute of sovereignty
is the power to prescribe regulations to promote the
health, morals, peace, education, good order or
safety and general welfare of the people. 9 The State,
through the legislature, has delegated the exercise of
police power to local government units, as agencies
of the State, in order to effectively accomplish and
carry out the declared objects of their creation. 4 This
delegation of police power is embodied in the
general welfare clause of the Local Government Code
which provides:
Sec. 6. General Welfare. Every local
government unit shall exercise the powers
expressly granted, those necessarily implied
therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and
effective governance, and those which are
essential to the promotion of the general
welfare. Within their respective territorial
jurisdictions, local government units shall
ensure and support, among other things,
the preservation and enrichment of culture,
promote health and safety, enhance the

right of the people to a balanced ecology,

encourage and support the development of
appropriate and self-reliant scientific and
technological capabilities, improve public
morals, enhance economic prosperity and
social justice, promote full employment
among their residents, maintain peace and
order, and preserve the comfort and
convenience of their inhabitants.
The scope of police power has been held to be so
comprehensive as to encompass almost all matters
affecting the health, safety, peace, order, morals,
comfort and convenience of the community. Police
power is essentially regulatory in nature and the
power to issue licenses or grant business permits, if
exercised for a regulatory and not revenue-raising
purpose, is within the ambit of this power. 5
The authority of city mayors to issue or grant
licenses and business permits is beyond cavil. It is
provided for by law. Section 171, paragraph 2 (n) of
Batas Pambansa Bilang 337 otherwise known as the
Local Government Code of 1983, reads:
Sec. 171. The City Mayor shall:
xxx

xxx

xxx

n) Grant or refuse to grant, pursuant to law,

city licenses or permits, and revoke the
same for violation of law or ordinance or the
conditions upon which they are granted.
However, the power to grant or issue licenses or
business permits must always be exercised in
accordance with law, with utmost observance of the
rights of all concerned to due process and equal
protection of the law.
Succinct and in point is the ruling of this Court, that:
. . . While a business may be regulated, such
regulation must, however, be within the
bounds of reason, i.e., the regulatory
ordinance must be reasonable, and its
provision cannot be oppressive amounting

to an arbitrary interference with the

business or calling subject of regulation. A
lawful business or calling may not, under
the guise of regulation, be unreasonably
interfered with even by the exercise of
police power. . . .
xxx

xxx

xxx

. . . The exercise of police power by the local

government is valid unless it contravenes
the fundamental law of the land or an act of
the legislature, or unless it is against public
policy or is unreasonable, oppressive,
partial, discriminating or in derogation of a
common right. 6
In the case under consideration, the business permit
granted by respondent City Mayor to petitioner was
burdened with several conditions. Petitioner agrees
with the holding by the Court of Appeals that
respondent City Mayor acted beyond his authority in
imposing such special conditions in its permit as the
same have no basis in the law or ordinance. Public
respondents and private respondent SOPI, on the
other hand, are one in saying that the imposition of
said special conditions on petitioner's business
permit is well within the authority of the City Mayor
as a valid exercise of police power.
As aptly discussed by the Solicitor General in his
Comment, the power to issue licenses and permits
necessarily includes the corollary power to revoke,
withdraw or cancel the same. And the power to
revoke or cancel, likewise includes the power to
restrict through the imposition of certain conditions.
In the case of Austin-Hardware, Inc. vs. Court of
Appeals, 7 it was held that the power to license
carries with it the authority to provide reasonable
terms and conditions under which the licensed
business shall be conducted. As the Solicitor General
puts it:
If the City Mayor is empowered to grant or
refuse to grant a license, which is a broader
power, it stands to reason that he can also
exercise a lesser power that is reasonably
incidental to his express power, i.e. to

restrict a license through the imposition of

certain conditions, especially so that there is
no positive prohibition to the exercise of
such prerogative by the City Mayor, nor is
there any particular official or body vested
with such authority. 8
However, the present inquiry does not stop there, as
the Solicitor General believes. The power or authority
of the City Mayor to impose conditions or restrictions
in the business permit is indisputable. What
petitioner assails are the conditions imposed in its
particular case which, it complains, amount to a
confiscation of the business in which petitioner is
engaged.
Distinction must be made between the grant of a
license or permit to do business and the issuance of
a license to engage in the practice of a particular
profession. The first is usually granted by the local
authorities and the second is issued by the Board or
Commission tasked to regulate the particular
profession. A business permit authorizes the person,
natural or otherwise, to engage in business or some
form of commercial activity. A professional license,
on the other hand, is the grant of authority to a
natural person to engage in the practice or exercise
of his or her profession.
In the case at bar, what is sought by petitioner from
respondent City Mayor is a permit to engage in the
business of running an optical shop. It does not
purport to seek a license to engage in the practice of
optometry as a corporate body or entity, although it
does have in its employ, persons who are duly
licensed to practice optometry by the Board of
Examiners in Optometry.
The case of Samahan ng Optometrists sa Pilipinas vs.
Acebedo International Corporation, G.R. No. 117097,
9
promulgated by this Court on March 21, 1997, is in
point. The factual antecedents of that case are
similar to those of the case under consideration and
the issue ultimately resolved therein is exactly the
same issue posed for resolution by this Court en
banc.

In the said case, the Acebedo International

Corporation filed with the Office of the Municipal
Mayor an application for a business permit for the
operation of a branch of Acebedo Optical in Candon,
Ilocos Sur. The application was opposed by the
Samahan ng Optometrists sa Pilipinas-Ilocos Sur
Chapter, theorizing that Acebedo is a juridical entity
not qualified to practice optometry. A committee was
created by the Office of the Mayor to study private
respondent's application. Upon recommendation of
the said committee, Acebedo's application for a
business permit was denied. Acebedo filed a petition
with the Regional Trial Court but the same was
dismissed. On appeal, however, the Court of Appeals
reversed the trial court's disposition, prompting the
Samahan ng Optometrists to elevate the matter to
this Court.
The First Division of this Court, then composed of
Honorable Justice Teodoro Padilla, Josue Bellosillo,
Jose Vitug and Santiago Kapunan, with Honorable
Justice Regino Hermosisima, Jr. as ponente, denied
the petition and ruled in favor of respondent Acebedo
International Corporation, holding that "the fact that
private respondent hires optometrists who practice
their profession in the course of their employment in
private respondent's optical shops, does not translate
into a practice of optometry by private respondent
itself," 10 The Court further elucidated that in both the
old and new Optometry Law, R.A. No. 1998,
superseded by R.A. No. 8050, it is significant to note
that there is no prohibition against the hiring by
corporations of optometrists. The Court concluded
thus:
All told, there is no law that prohibits the
hiring by corporations of optometrists or
considers the hiring by corporations of
optometrists
as
a practice by the
corporation itself of the profession of
optometry.
In the present case, the objective of the imposition of
subject conditions on petitioner's business permit
could be attained by requiring the optometrists in
petitioner's employ to produce a valid certificate of
registration as optometrist, from the Board of
Examiners in Optometry. A business permit is issued
primarily to regulate the conduct of business and the

City Mayor cannot, through the issuance of such

permit, regulate the practice of a profession, like that
of optometry. Such a function is within the exclusive
domain of the administrative agency specifically
empowered by law to supervise the profession, in
this case the Professional Regulations Commission
and the Board of Examiners in Optometry.
It is significant to note that during the deliberations
of the bicameral conference committee of the Senate
and the House of Representatives on R.A. 8050
(Senate Bill No. 1998 and House Bill No. 14100), the
committee failed to reach a consensus as to the
prohibition on indirect practice of optometry by
corporations. The proponent of the bill, former
Senator Freddie Webb, admitted thus:
Senator Webb: xxx xxx xxx
The focus of contention remains to be the
proposal of prohibiting the indirect practice
of optometry by corporations.1wphi1 We
took a second look and even a third look at
the issue in the bicameral conference, but a
compromise remained elusive. 11
Former Senator Leticia Ramos-Shahani likewise voted
her reservation in casting her vote:
Senator Shahani: Mr. President.

corporations, specifically on the hiring and

employment of licensed optometrists by optical
corporations. It is clear that Congress left the
resolution of such issue for judicial determination,
and it is therefore proper for this Court to resolve the
issue.
Even in the United States, jurisprudence varies and
there is a conflict of opinions among the federal
courts as to the right of a corporation or individual
not himself licensed, to hire and employ licensed
optometrists. 13
Courts have distinguished between optometry as a
learned profession in the category of law and
medicine, and optometry as a mechanical art. And,
insofar as the courts regard optometry as merely a
mechanical art, they have tended to find nothing
objectionable in the making and selling of
eyeglasses, spectacles and lenses by corporations so
long as the patient is actually examined and
prescribed for by a qualified practitioner. 14
The primary purpose of the statute regulating the
practice of optometry is to insure that optometrical
services are to be rendered by competent and
licensed persons in order to protect the health and
physical welfare of the people from the dangers
engendered by unlicensed practice. Such purpose
may be fully accomplished although the person
rendering the service is employed by a corporation.
15

The
optometry
bills
have
evoked
controversial views from the members of
the panel. While we realize the need to
uplift the standards of optometry as a
profession, the consesnsus of both Houses
was to avoid touching sensitive issues which
properly belong to judicial determination.
Thus, the bicameral conference committee
decided to leave the issue of indirect
practice of optometry and the use of trade
names open to the wisdom of the Courts
which are vested with the prerogative of
interpreting the laws. 12
From the foregoing, it is thus evident that Congress
has not adopted a unanimous position on the matter
of prohibition of indirect practice of optometry by

Furthermore, it was ruled that the employment of a

qualified optometrist by a corporation is not against
public policy. 16 Unless prohibited by statutes, a
corporation has all the contractual rights that an
individual has 17 and it does not become the practice
of medicine or optometry because of the presence of
a physician or optometrist. 18 The manufacturing,
selling, trading and bartering of eyeglasses and
spectacles as articles of merchandise do not
constitute the practice of optometry. 19
In the case of Dvorine vs. Castelberg Jewelry
Corporation, 20 defendant corporation conducted as
part of its business, a department for the sale of
eyeglasses and the furnishing of optometrical

services to its clients. It employed a registered

optometrist who was compensated at a regular
salary and commission and who was furnished
instruments and appliances needed for the work, as
well as an office. In holding that corporation was not
engaged in the practice of optometry, the court ruled
that there is no public policy forbidding the
commercialization of optometry, as in law and
medicine, and recognized the general practice of
making it a commercial business by advertising and
selling eyeglasses.
To accomplish the objective of the regulation, a state
may provide by statute that corporations cannot sell
eyeglasses, spectacles, and lenses unless a duly
licensed physician or a duly qualified optometrist is
in charge of, and in personal attendance at the place
where such articles are sold. 21 In such a case, the
patient's primary and essential safeguard lies in the
optometrist's control of the "treatment" by means of
prescription and preliminary and final examination. 22
In analogy, it is noteworthy that private hospitals are
maintained by corporations incorporated for the
purpose of furnishing medical and surgical treatment.
In the course of providing such treatments, these
corporations employ physicians, surgeons and
medical practitioners, in the same way that in the
course of manufacturing and selling eyeglasses, eye
frames and optical lenses, optical shops hire licensed
optometrists to examine, prescribe and dispense
ophthalmic lenses. No one has ever charged that
these corporations are engaged in the practice of
medicine. There is indeed no valid basis for treating
corporations engaged in the business of running
optical shops differently.
It also bears stressing, as petitioner has pointed out,
that the public and private respondents did not
appeal from the ruling of the Court of Appeals.
Consequently, the holding by the Court of Appeals
that the act of respondent City Mayor in imposing the
questioned special conditions on petitioner's
business permit is ultra vires cannot be put into issue
here by the respondents. It is well-settled that:
A party who has not appealed from the
decision may not obtain any affirmative
relief from the appellate court other than

what he had obtain from the lower court, if

any, whose decision is brought up on
appeal. 23
. . . an appellee who is not an appellant may
assign errors in his brief where his purpose
is to maintain the judgment on other
grounds, but he cannot seek modification or
reversal of the judgment or affirmative relief
unless he has also appealed. 24
Thus, respondents' submission that the imposition of
subject special conditions on petitioner's business
permit is not ultra vires cannot prevail over the
finding and ruling by the Court of Appeals from which
they (respondents) did not appeal.
Anent the second assigned error, petitioner
maintains that its business permit issued by the City
Mayor is not a contract entered into by Iligan City in
the exercise of its proprietary functions, such that
although petitioner agreed to such conditions, it
cannot be held in estoppel since ultra vires acts
cannot be given effect.
Respondents, on the other hand, agree with the
ruling of the Court of Appeals that the business
permit in question is in the nature of a contract
between Iligan City and the herein petitioner, the
terms and conditions of which are binding upon
agreement, and that petitioner is estopped from
questioning the same. Moreover, in the Resolution
denying petitioner's motion for reconsideration, the
Court of Appeals held that the contract between the
petitioner and the City of Iligan was entered into by
the latter in the performance of its proprietary
functions.
This Court holds otherwise. It had occasion to rule
that a license or permit is not in the nature of a
contract but a special privilege.
. . . a license or a permit is not a contract
between the sovereignty and the licensee or
permitee, and is not a property in the
constitutional sense, as to which the
constitutional
proscription
against
impairment of the obligation of contracts

may extend. A license is rather in the nature

of a special privilege, of a permission or
authority to do what is within its terms. It is
not in any way vested, permanent or
absolute. 25
It is therefore decisively clear that estoppel cannot
apply in this case. The fact that petitioner acquiesced
in the special conditions imposed by the City Mayor
in subject business permit does not preclude it from
challenging the said imposition, which is ultra vires
or beyond the ambit of authority of respondent City
Mayor. Ultra vires acts or acts which are clearly
beyond the scope of one's authority are null and void
and cannot be given any effect. The doctrine of
estoppel cannot operate to give effect to an act
which is otherwise null and void or ultra vires.
The Court of Appeals erred in adjudging subject
business permit as having been issued by responded
City Mayor in the performance of proprietary
functions of Iligan City. As hereinabove elaborated
upon, the issuance of business licenses and permits
by a municipality or city is essentially regulatory in
nature. The authority, which devolved upon local
government units to issue or grant such licenses or
permits, is essentially in the exercise of the police
power of the State within the contemplation of the
general welfare clause of the Local Government
Code.
WHEREFORE, the petition is GRANTED; the Decision
of the Court of Appeals in CA-GR SP No. 22995
REVERSED: and the respondent City Mayor is hereby
ordered to reissue petitioner's business permit in
accordance with law and with this disposition. No
pronouncement as to costs.
SO ORDERED.

This is a Pctitiur; for Certiorari under Rule 64, in

relation to Rule 65 of the Rules or Court, secking to
annul Decision No. 2008-022 dated 15 February 2008
of the Commission on Audit (COA). 1
On 30 October 2003, the City Council or the
Sangguniang Panglungsod ng Malabon (SPM),
presided over by Hon. Benjamin Galauran, then
acting Vice-Mayor, adopted and approved City
Ordinance No. 15-2003, entitled "An Ordinance
Granting Authority to the City Vice-Mayor, Hon. Jay
Jay Yambao, to Negotiate and Enter into Contract for
Consultancy Services for Consultants in the
Sanggunian Secretariat Tasked to Function in their
Respective Areas of Concern x x x." 2
On 9 December 2003 and 1 March 2004, the City of
Malabon, represented by Hon. Galauran, entered into
separate Contracts for Consultancy Services with Ms.
Jannette O. Vijiga,3 Mr. Meynardo E. Virtucio4 and Mr.
Hernando D. Dabalus (2003 Consultancy Contracts). 5
Subsequently, during the May 2004 elections,
petitioner was elected City Vice-Mayor of Malabon.
By virtue of this office, he also became the Presiding
Officer of the SPM and, at the same time, the head of
the Sanggunian Secretariat.
To complement the manpower requirements of the
existing Sanggunian Secretariat, petitioner deemed it
necessary to hire the services of consultants with the
end view of augmenting and upgrading its
performance capability for the effective operation of
the legislative machinery of the city.

G.R. No. 182069

July 03, 2012

ARNOLD
D.
VICENCIO,
Petitioner
vs.
HON. REYNALDO A. VILLAR and HON. JUANITO
G. ESPINO, JR., in their capacity as Acting
Chairman and Commissioner, respectively, of
the Hon. Commission on Audit, and ELIZABETH
ZOSA, Respondents.
DECISION
SERENO, J.:

Petitioner thus wrote a letter dated 19 July 2004 to

Atty. Danilo T. Diaz , the City Legal Officer of
Malabon, inquiring as to whether it was still
necessary for the SPM to ratify a newly entered
contract of consultancy services between it and the
candidate for the consultancy position. The letter
states in part:
This is an inquiry regarding the
hiring of consultants by virtue of an
ordinance giving authority to the
City Vice Mayor to enter into
consultancy services (Ordinance
no. 15-2003).
As you very well know, the services
of the consultants hired by the
former administration, particularly
by the Sangguniang Panglungsod,

ended last June 30, 2004. Hence,

we are confronted by this inquiry:
Would there still be a need for the
Sangguniang Panglungsod to ratify
a newly entered contract of
consultancy services between the
SP and the candidate for said
consultancy position? Kindly render
your humble opinion on the
matter.6
Atty. Diaz then responded to the said inquiry through
a letter dated 26 July 2004, which categorically
stated that ratification was no longer necessary,
provided that the services to be contracted were
those stipulated in the ordinance. The letter states
thus:
In
response
to
your
query
contained in your letter dated July
19, 2004, regarding the hiring of
consultants for the Sanggunian
Secretariat by virtue of Ordinance
No. 15-2003, giving authority to the
City Vice Mayor to enter into
consultancy services and whether
there is still a need for ratification
of said consultancy contract by the
Sanggunian, the answer is, such a
ratification is no longer necessary
provided that the contract of
consultancy
services
to
be
executed is precisely the services
stipulated in said ordinance. In
essence, the Ordinance no. 152003
already
stated
what
consultancy services should be
secured and hence, if the contract
for consultancy services to be
executed is precisely those as
provided
in
said
ordinance,
ratification is a mere suplasage.7
On 21 January 2005, the SPM adopted City Ordinance
No. 01-2005 entitled "An Ordinance Appropriating
Funds to Cover the Various Expenditures and
Activities of the Local Government of Malabon City
for the Period from January 01, 2005 to December
31, 2005." The total amount of funds appropriated
was P 511,070,019 for the spending of the entire city
government. Out of this amount, P 792,000 was
earmarked for consultancy services under the
Legislative Secretariat.

On 1 February 2005, petitioner, representing the City

Government of Malabon City, entered into Contracts
for Consultancy Services with Ms. Jennifer S.
Catindig8 and Atty. Rodolfo C. delos Santos (2005
Consultancy Contracts).9 On 11 February 2005,
another Contract for Consultancy Services was
entered into between Mr. Marvin T. Amiana 10 and the
city government.
After the signing of their respective contracts, the
three consultants rendered consultancy services to
the SPM. Thereafter, they were correspondingly paid
for their services pursuant to the contracts therefor.
On
19
December
2005, Audit
Observation
Memorandum (AOM) No. 2005-12-01911 was issued
by Ms. Atenie F. Padilla, Supervising Auditor of the
City Auditors Office, Malabon City, disallowing the
amount of three hundred eighty-four thousand nine
hundred eighty pesos (P384,980) for being an
improper disbursement. The AOM disclosed the
following pertinent findings:

City Ordinance No. 15-2003 dated

October 30, 2003 was used as
basis
of
authority
in
hiring
consultants. Analysis of the said
City Ordinance revealed that it
specifically authorized the former
Vice-Mayor, Hon. Mark Allan Jay G.
Yambao to enter into a contract for
consultancy
services
in
the
Sangguniang Secretariat covering
the period June to December 2003
only. Said ordinance does not give
authority to the incumbent City
Vice-Mayor Arnold D. Vicencio to
hire consultants for CY 2005.
Progress accomplishment report for
the month, to determine the
services
rendered
were
not
attached to the disbursement
vouchers.
No information as to what method
had been made by BAC in the
hiring of individual consultants
whether through the selection from
several registered professionals
who offered consulting services or
through direct hiring without the
intervention of the BAC.

Copies of the approved contracts

together
with
supporting
documents were not submitted to
the City Auditors Office within five
(5) days from execution of the
contract for review and evaluation
contrary to COA Circular No. 76-34
dated July 15, 1976, thus the City
Auditors Office was precluded to
conduct timely review/evaluation to
inform management of whatever
deficiencies
noted
so
that
immediate
remedial
measures
could be properly taken.12

On 12 May 2006, respondent Elizabeth S. Zosa

issued Notice of Disallowance (ND) No. 06-009-101
(05)13 containing the result of the evaluation
conducted on the AOM issued by Ms. Padilla. The
persons held liable for the disallowed amount relative
to the hiring of the three consultants were the
following: (1) petitioner, in his capacity as City ViceMayor, for certifying that the expenses/cash
advances were necessary, lawful and incurred under
his direct supervision and for approving the
transaction; (2) Mr. Eustaquio M. Angeles, in his
capacity as Officer-in-Charge, City Accountant, for
certifying to the completeness and propriety of the
supporting documents of the expenditures; and (3)
Ms. Catindig, Atty. Delos Santos, and Mr. Amiana, as
payees. The above-named persons were further
directed to settle the said disallowance immediately.
Pursuant to Sections 48, 50 and 51 of Presidential
Decree No. (P.D.) 1445, the parties found liable had a
period of six months within which to file an appeal.
The disallowance was anchored on the following
findings:
- There was no authority for the
incumbent City Vice-Mayor Arnold
D. Vicencio to hire consultants for
CY 2005. City Ordinance No. 152003 dated October 30, 2003
which was used as basis of
authority
to
hire
consultants
specifically authorized the former
Vice-Mayor, Hon. Mark Allan Jay G.
Yambao to enter into a contract for
consultancy
services
in
the
Sangguniang Secretariat covering
the period June to December 2003
only.
There
were
no
Progress
Accomplishment Reports for the

month, to determine the services

rendered.
- No information as to what method
had been made by BAC in the
hiring of individual consultants
whether through the selection from
several registered professionals
who offered consulting services or
through direct hiring without the
intervention of the BAC.14
On 22 June 2006, the SPM wrote a letter15 informing
Ms. Padilla that the three consultants hired by
petitioner rendered services covering the period
January to December 2005. In its view, the hiring of
these consultants and the services they rendered
were in good faith.
Aggrieved by the disallowance, petitioner appealed it
to the Adjudication and Settlement Board (ASB) of
the COA. On 12 June 2007, the ASB issued Decision
No. 2007-030,16 the dispositive portion of which reads
as follows:
Premises considered, the instant
appeal of Hon. Arnold Vicencio is
hereby denied. Accordingly, Notice
of Disallowance No. 06-009-101
(05) dated 12 May 2006 involving
the
amount
of
P384,980.00
representing fees to consultants
Mr. Marvin T. Amiana, Atty. Rodolfo
Delos Santos and Ms. Jennifer
Catindig,
is
hereby
affirmed.
However, the instant appeal of Mr.
Estaquio
Angeles
is
hereby
granted. Mr. Angeles is therefore
excluded from the persons liable
listed under Notice of Disallowance
No. 06-009-101 (05).17
Thereafter, herein petitioner filed a letter dated 7 July
2007,18 addressed to Hon. Guillermo N. Carague, COA
Chairperson. The letter prayed for the reversal and
setting aside of the earlier Decision of the ASB. On
15 February 2008, public respondent issued the
assailed Order. It appears that the letter of petitioner
was treated as an appeal to the Commission Proper
of the COA and was subsequently denied. The
dispositive portion states:

WHEREFORE, premises considered, the instant

motion for reconsideration, which was treated as an
appeal, is denied.19
On 28 March 2008, the instant Petition was filed,
raising the following issue:
WHETHER
OR
NOT
PUBLIC
RESPONDENT
COMMISSION ON AUDIT COMMITTED SERIOUS
ERRORS AND GRAVE ABUSE OF DISCRETION
AMOUNTING
TO
LACK
OF
OR
EXCESS
OFJURISDICTION WHEN IT AFFIRMED ASB DECISION
NO. 2007-030, RELATIVE TO THE DISALLOWANCE OF
DISBURSEMENTS
CONCERNING
THE
SERVICES
RENDERED BY HIRED CONSULTANTS FOR THE
SANGGUNIANG PANLUNGSOD NG MALABON.
On 8 April 2008, this Court directed respondents to
comment on the Petition. On 28 July 2008, they filed
their Comment, in which they averred that Ordinance
No. 15-2003 specifically authorized the expenditure
of funds for the compensation of consultants only
from June to December 2003. Thus, the contracts for
consultancy entered into in 2005 were contrary to
the ordinance cited and were therefore void for being
unauthorized and bereft of any legal basis. There is
also no room for interpretation of the ordinance, as
the same is clear, and, additionally, actually contains
no preamble. Further, respondents argue that to
allow the disbursement of public funds to pay for the
services of the consultants, despite the absence of
authority for the same, would allow a circumvention
of the applicable COA rules and circulars.
Petitioner thereafter filed his Reply to the Comment,
in compliance with this Courts 12 August 2008
Resolution. In his Reply, he contended that he had
the authority to enter into the consultancy contracts
pursuant to Ordinance No. 15-2003. As the ordinance
was ambiguous, there was a need to interpret its
provisions by looking into the intent of the law. He
also manifested that the Ombusdman had dismissed
the administrative and criminal Complaints for
violation of Republic Act No. (R.A.) 6713 and for
Usurpation of Authority, previously filed against him
over the same transactions. The Ombudsman held
that, while Ordinance No. 15-2003 specifically
mentions then Vice-Mayor Yambao, the intent in
passing the law may not be ignored. It was the
intention of the city council to authorize the Office of
the Vice-Mayor to enter into consultancy contracts,
and not Vice-Mayor Yambao only. Petitioner also
argued that the ends of substantial justice and equity
would be better served by allowing the disbursement

for consultancy services that have already been

rendered.
We deny the Petition.
At the outset, we note that the Petition has a
procedural flaw that should merit its outright
dismissal. Through the Verification and Certification
attached to the instant Petition, petitioner states that
the contents of the Petition "are true and correct of
[his] own personal knowledge and belief and based
on authentic records and/or documents."20
Section 4, Rule 7 of the Rules of Court provides that a
pleading required to be verified which contains a
verification based on "information and belief" or
"knowledge, information and belief," shall be treated
as an unsigned pleading. A pleading, therefore, in
which the verification is based merely on the partys
knowledge and belief as in the instant Petition
produces no legal effect, subject to the discretion of
the court to allow the deficiency to be remedied.21
In any case, we find no grave abuse of discretion on
the part of the COA in issuing the assailed Decision.
Petitioner contends that the ordinance authorizes the
Office of the Vice-Mayor, and not Vice-Mayor Yambao
in particular, to enter into consultancy contracts.
Notably, it was even Hon. Vice-Mayor Benjamin C.
Galauran, who was acting Vice-Mayor at the time,
who entered into the 2003 Consultancy Contracts.
Petitioner also argues that there is no indication from
the preamble of the ordinance, which can be read
from the minutes of the SPM meeting, that the
ordinance was specifically designed to empower only
Vice-Mayor Yambao, or to limit such power to hire for
the period June to December 2003 only.
We disagree.
Under Section 456 of R.A. 7160, or the Local
Government Code, the following are the powers and
duties of a city vice-mayor:
ARTICLE
The City Vice-Mayor

II

SECTION 456. Powers, Duties and Compensation.

(a) The city vice-mayor shall:

(1) Be the presiding officer

of
the
sangguniang
panlungsod and sign all
warrants drawn on the city
treasury
for
all
expenditures appropriated
for the operation of the
sangguniang panlungsod;
(2) Subject to civil service
law, rules and regulations,
appoint all officials and
employees
of
the
sangguniang panlungsod,
except
those
whose
manner of appointment is
specifically provided in
this Code;
(3) Assume the office of
the city mayor for the
unexpired term of the
latter in the event of
permanent vacancy as
provided for in Section 44,
Book I of this Code;
(4) Exercise the powers
and perform the duties
and functions of the city
mayor
in
cases
of
temporary vacancy as
provided for in Section 46,
Book I of this Code; and
(5) Exercise such other
powers and perform such
other duties and functions
as may be prescribed by
law or ordinance.
(b) The city vice-mayor shall
receive a monthly compensation
corresponding to Salary Grade
twenty-eight (28) for a highly
urbanized city and Salary Grade
twenty-six (26) for a component
city, as prescribed under R.A. No.
6758
and
the
implementing
guidelines issued pursuant thereto.
Under this provision, therefore, there is no inherent
authority on the part of the city vice-mayor to enter
into contracts on behalf of the local government unit,

unlike that provided for the city mayor. 22 Thus, the

authority of the vice-mayor to enter into contracts on
behalf of the city was strictly circumscribed by the
ordinance granting it. Ordinance No. 15-2003
specifically authorized Vice-Mayor Yambao to enter
into contracts for consultancy services. As this is not
a power or duty given under the law to the Office of
the Vice-Mayor, Ordinance No. 15-2003 cannot be
construed as a "continuing authority" for any person
who enters the Office of the Vice-Mayor to enter into
subsequent, albeit similar, contracts.
Ordinance No. 15-2003 provides in full:
City Ordinance No. 15-2003
An Ordinance Granting Authority to the City Vice
Mayor, Hon. Jay Jay G. Yambao, to Negotiate, and
Enter into a Contract for Consultancy Services in the
Sanggunian Secretariat Tasked to Function in their
Respective Areas of Concern, as Aforementioned, To
Wit:
(1) A Legal Consultant
(2) A Consultant
Affairs and

on

Education

(3) A Management Consultant

That said consultants shall be paid/compensated at
the rate of Twenty Two Thousand Pesos (P22,000.00)
each, per month, effective upon approval of this
ordinance subject to the usual accounting and
auditing procedures, rules and/or regulations;
That the source of funds for appropriations thereof
shall be made available for expenditures to be
earmarked for payment/compensation for said
consultants, covering the period from June to
December of 2003, thereby authorizing further the
City Vice Mayor to effect the necessary funding
thereof, pursuant to the pertinent provision,
aforecited, in Chapter 4, Section 336 of R.A. 7160;
That copies of this ordinance be furnished all
concerned for their information and guidance.
Adopted: October 30, 2003.23
Ordinance No. 15-2003 is clear and precise and
leaves no room for interpretation.1wphi1 It only

authorized the then City Vice-Mayor to enter into

consultancy contracts in the specific areas of
concern. Further, the appropriations for this
particular item were limited to the savings for the
period June to December 2003. This was an
additional limitation to the power granted to ViceMayor Yambao to contract on behalf of the city. The
fact that any later consultancy contract would
necessarily require further appropriations from the
city council strengthens the contention that the
power granted under Ordinance No. 15-2003 was
limited in scope. Hence, petitioner was without
authority to enter into the 2005 Consultancy
Contracts.
Where the words of a statute are clear, plain, and
free from ambiguity, it must be given its literal
meaning
and
applied
without
attempted
interpretation.24 Thus, the ordinance should be
applied according to its express terms, and
interpretation would be resorted to only where a
literal interpretation would be either impossible or
absurd or would lead to an injustice.25 In the instant
case, there is no reason to depat1 from this rule,
since the subject ordinance is not at all impossible,
absurd, or unjust.
Section 103 of P.O. 1445 declares that expenditures
of government funds or uses of government property
in violation of law or regulations shall be a personal
liability of the official or employee found to be
directly responsible therefor. The public official's
personal liability arises only if the expenditure of
government funds was made in violation of law. In
this case, petitioner's act of entering into a contract
on behalf of the local government unit without the
requisite authority therefor was in violation of the
Local Government Code. While petitioner may have
relied on the opinion of the City Legal Officer, such
reliance only serves to buttress his good faith. It does
not, however, exculpate him from his personal
liability under P.D. 1445.
In sum, the COA's assailed Decision was made in
faithful compliance with its mandate and in judicious
exercise of its general audit power as conferred on it
by the Constitution26
The COA was merely fulfilling its mandate in
observing the policy that government funds and
property should be fully protected and conserved;
and that irregular, unnecessary, excessive or
extravagant expenditures or uses of such funds and
property should be prevented.27 Thus, no grave
abuse of discretion may be imputed to the COA.

WHEREFORE, the Commission on Audit Decision

dated 4 January 2008 is hereby AFFIRMED.
SO ORDERED.
G.R. No. 196870

June 26, 2012

BORACAY
FOUNDATION,
INC.,
Petitioner,
vs.
THE PROVINCE OF AKLAN, REPRESENTED BY
GOVERNOR
CARLITO
S.
MARQUEZ,
THE
PHILIPPINE RECLAMATION AUTHORITY, AND
THE DENR-EMB (REGION VI), Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
In resolving this controversy, the Court took into
consideration that all the parties involved share
common goals in pursuit of certain primordial State
policies and principles that are enshrined in the
Constitution and pertinent laws, such as the
protection of the environment, the empowerment of
the local government units, the promotion of tourism,
and the encouragement of the participation of the
private sector. The Court seeks to reconcile the
respective roles, duties and responsibilities of the
petitioner and respondents in achieving these shared
goals within the context of our Constitution, laws and
regulations.
Nature of the Case
This is an original petition for the issuance of an
Environmental Protection Order in the nature of a
continuing mandamus under A.M. No. 09-6-8-SC,
otherwise known as the Rules of Procedure for
Environmental Cases, promulgated on April 29, 2010.
The Parties
Petitioner Boracay Foundation, Inc. (petitioner) is a
duly registered, non-stock domestic corporation. Its
primary purpose is "to foster a united, concerted and
environment-conscious development of Boracay
Island, thereby preserving and maintaining its
culture, natural beauty and ecological balance,
marking the island as the crown jewel of Philippine
tourism, a prime tourist destination in Asia and the
whole world."1 It counts among its members at least
sixty (60) owners and representatives of resorts,

hotels, restaurants, and similar institutions; at least

five
community
organizations;
and
several
environmentally-conscious residents and advocates. 2
Respondent Province of Aklan (respondent Province)
is a political subdivision of the government created
pursuant to Republic Act No. 1414, represented by
Honorable Carlito S. Marquez, the Provincial Governor
(Governor Marquez).
Respondent
Philippine
Reclamation
Authority
(respondent PRA), formerly called the Public Estates
Authority (PEA), is a government entity created by
Presidential Decree No. 1084,3 which states that one
of the purposes for which respondent PRA was
created was to reclaim land, including foreshore and
submerged areas. PEA eventually became the lead
agency primarily responsible for all reclamation
projects in the country under Executive Order No.
525, series of 1979. In June 2006, the President of
the Philippines issued Executive Order No. 543,
delegating the power "to approve reclamation
projects to PRA through its governing Board, subject
to compliance with existing laws and rules and
further subject to the condition that reclamation
contracts to be executed with any person or entity
(must) go through public bidding."4
Respondent Department of Environment and Natural
Resources Environmental Management Bureau
(DENR-EMB), Regional Office VI (respondent DENREMB RVI), is the government agency in the Western
Visayas Region authorized to issue environmental
compliance certificates regarding projects that
require
the
environments
protection
and
management in the region.5
Summary of Antecedent Facts
Boracay Island (Boracay), a tropical paradise located
in the Western Visayas region of the Philippines and
one of the countrys most popular tourist
destinations, was declared a tourist zone and marine
reserve in 1973 under Presidential Proclamation No.
1801.6 The island comprises the barangays of Manocmanoc, Balabag, and Yapak, all within the
municipality of Malay, in the province of Aklan.7

an ancient reef platform. Its beaches, the sandy land

strip between the water and the area currently
occupied by numerous establishments, is the primary
draw for domestic and international tourists for its
color, texture and other unique characteristics.
Needless to state, it is the premier domestic and
international tourist destination in the Philippines.8
More than a decade ago, respondent Province built
the Caticlan Jetty Port and Passenger Terminal at
Barangay Caticlan to be the main gateway to
Boracay. It also built the corresponding Cagban Jetty
Port and Passenger Terminal to be the receiving end
for tourists in Boracay. Respondent Province operates
both ports "to provide structural facilities suited for
locals, tourists and guests and to provide safety and
security measures."9
In 2005, Boracay 2010 Summit was held and
participated in by representatives from national
government agencies, local government units
(LGUs), and the private sector. Petitioner was one of
the organizers and participants thereto. The Summit
aimed "to re-establish a common vision of all
stakeholders to ensure the conservation, restoration,
and preservation of Boracay Island" and "to develop
an action plan that [would allow] all sectors to work
in concert among and with each other for the long
term benefit and sustainability of the island and the
community."10 The Summit yielded a Terminal
Report11 stating that the participants had shared their
dream of having world-class land, water and air
infrastructure, as well as given their observations
that government support was lacking, infrastructure
was poor, and, more importantly, the influx of
tourists to Boracay was increasing. The Report
showed that there was a need to expand the port
facilities at Caticlan due to congestion in the holding
area of the existing port, caused by inadequate
facilities, thus tourists suffered long queues while
waiting for the boat ride going to the island. 12
Respondent Province claimed that tourist arrivals to
Boracay reached approximately 649,559 in 2009 and
779,666 in 2010, and this was expected to reach a
record of 1 million tourist arrivals in the years to
come. Thus, respondent Province conceptualized the
expansion of the port facilities at Barangay
Caticlan.13

shorelines of Barangay Caticlan, and manifesting its

strong opposition to said application, as the proposed
foreshore lease practically covered almost all the
coastlines of said barangay, thereby technically
diminishing its territorial jurisdiction, once granted,
and depriving its constituents of their statutory right
of preference in the development and utilization of
the natural resources within its jurisdiction. The
resolution further stated that respondent Province did
not conduct any consultations with the Sangguniang
Barangay of Caticlan regarding the proposed
foreshore lease, which failure the Sanggunian
considered as an act of bad faith on the part of
respondent Province.15
On
November
20,
2008,
the
Sangguniang
Panlalawigan of respondent Province approved
16
Resolution No. 2008-369,
formally authorizing
Governor Marquez to enter into negotiations towards
the possibility of effecting self-liquidating and
income-producing
development
and
livelihood
projects to be financed through bonds, debentures,
securities, collaterals, notes or other obligations as
provided under Section 299 of the Local Government
Code, with the following priority projects: (a)
renovation/rehabilitation of the Caticlan/Cagban
Passenger Terminal Buildings and Jetty Ports; and (b)
reclamation of a portion of Caticlan foreshore for
commercial purposes.17 This step was taken as
respondent Provinces existing jetty port and
passenger terminal was funded through bond
flotation, which was successfully redeemed and paid
ahead of the target date. This was allegedly cited as
one of the LGUs Best Practices wherein respondent
Province was given the appropriate commendation.18
Respondent
Province
included
the
proposed
expansion of the port facilities at Barangay Caticlan
in its 2009 Annual Investment Plan,19 envisioned as
its project site the area adjacent to the existing jetty
port, and identified additional areas along the
coastline of Barangay Caticlan as the site for future
project expansion.20
Governor Marquez sent a letter to respondent PRA on
March 12, 200921 expressing the interest of
respondent Province to reclaim about 2.64 hectares
of land along the foreshores of Barangay Caticlan,
Municipality of Malay, Province of Aklan.

Petitioner describes Boracay as follows:

Boracay is well-known for its distinctive powdery
white-sand beaches which are the product of the
unique ecosystem dynamics of the area. The island
itself is known to come from the uplifted remnants of

The Sangguniang Barangay of Caticlan, Malay

Municipality, issued Resolution No. 13, s. 200814 on
April 25, 2008 stating that it had learned that
respondent Province had filed an application with the
DENR for a foreshore lease of areas along the

Sometime in April 2009, respondent Province entered

into
an
agreement
with
the
Financial
Advisor/Consultant that won in the bidding process
held a month before, to conduct the necessary
feasibility study of the proposed project for the

Renovation/Rehabilitation of the Caticlan Passenger

Terminal Building and Jetty Port, Enhancement and
Recovery of Old Caticlan Coastline, and Reclamation
of a Portion of Foreshore for Commercial Purposes
(the Marina Project), in Malay, Aklan.22
Subsequently, on May 7, 2009, the Sangguniang
Panlalawigan
of
respondent
Province
issued
Resolution No. 2009110,23 which authorized
Governor Marquez to file an application to reclaim
the 2.64 hectares of foreshore area in Caticlan,
Malay, Aklan with respondent PRA.
Sometime
in
July
2009,
the
Financial
Advisor/Consultant came up with a feasibility study
which focused on the land reclamation of 2.64
hectares by way of beach enhancement and recovery
of the old Caticlan coastline for the rehabilitation and
expansion of the existing jetty port, and for its future
plans the construction of commercial building and
wellness center. The financial component of the said
study was Two Hundred Sixty Million Pesos
(P260,000,000.00). Its suggested financing scheme
was bond flotation.24
Meanwhile, the Sangguniang Bayan of the
Municipality of Malay expressed its strong opposition
to the intended foreshore lease application, through
Resolution No. 044,25 approved on July 22, 2009,
manifesting therein that respondent Provinces
foreshore lease application was for business
enterprise purposes for its benefit, at the expense of
the local government of Malay, which by statutory
provisions was the rightful entity "to develop, utilize
and reap benefits from the natural resources found
within its jurisdiction."26
In
August
2009,
a
Preliminary
Geohazard
Assessment27 for the enhancement/expansion of the
existing Caticlan Jetty Port and Passenger Terminal
through beach zone restoration and Protective
Marina Developments in Caticlan, Malay, Aklan was
completed.
Thereafter,
Governor
Marquez
submitted
an
Environmental Performance Report and Monitoring
Program (EPRMP)28 to DENR-EMB RVI, which he had
attached to his letter29 dated September 19, 2009, as
an initial step for securing an Environmental
Compliance Certificate (ECC). The letter reads in
part:
With the project expected to start its construction
implementation next month, the province hereby

assures your good office that it will give preferential

attention to and shall comply with whatever
comments that you may have on this EPRMP. 30
(Emphasis added.)
Respondent Province was then authorized to issue
"Caticlan Super Marina Bonds" for the purpose of
funding the renovation of the Caticlan Jetty Port and
Passenger Terminal Building, and the reclamation of a
portion of the foreshore lease area for commercial
purposes in Malay, Aklan through Provincial
Ordinance No. 2009-013, approved on September 10,
2009. The said ordinance authorized Governor
Marquez to negotiate, sign and execute agreements
in relation to the issuance of the Caticlan Super
Marina Bonds in the amount not exceeding
P260,000,000.00.31
Subsequently, the Sangguniang Panlalawigan of the
Province of Aklan issued Provincial Ordinance No.
2009-01532 on October 1, 2009, amending Provincial
Ordinance No. 2009-013, authorizing the bond
flotation of the Province of Aklan through Governor
Marquez to fund the Marina Project and appropriate
the entire proceeds of said bonds for the project, and
further authorizing Governor Marquez to negotiate,
sign and execute contracts or agreements pertinent
to the transaction.33
Within the same month of October 2009, respondent
Province deliberated on the possible expansion from
its original proposed reclamation area of 2.64
hectares to forty (40) hectares in order to maximize
the utilization of its resources and as a response to
the
findings
of
the
Preliminary
Geohazard
Assessment study which showed that the recession
and retreat of the shoreline caused by coastal
erosion and scouring should be the first major
concern in the project site and nearby coastal area.
The study likewise indicated the vulnerability of the
coastal zone within the proposed project site and the
nearby coastal area due to the effects of sea level
rise and climate change which will greatly affect the
social, economic, and environmental situation of
Caticlan and nearby Malay coastal communities.34
In his letter dated October 22, 2009 addressed to
respondent PRA, Governor Marquez wrote:
With
our
substantial
compliance
with
the
requirements under Administrative Order No. 2007-2
relative to our request to PRA for approval of the
reclamation of the [proposed Beach Zone Restoration
and Protection Marine Development in Barangays
Caticlan and Manoc-Manoc] and as a result of our

discussion during the [meeting with the respondent

PRA on October 12, 2009], may we respectfully
submit a revised Reclamation Project Description
embodying certain revisions/changes in the size and
location of the areas to be reclaimed. x x x.
On another note, we are pleased to inform your
Office that the bond flotation we have secured with
the Local Government Unit Guarantee Corporation
(LGUGC) has been finally approved last October 14,
2009. This will pave the way for the implementation
of said project. Briefly, the Province has been
recognized by the Bureau of Local Government
Finance (BLGF) for its capability to meet its loan
obligations. x x x.
With the continued increase of tourists coming to
Boracay through Caticlan, the Province is venturing
into such development project with the end in view of
protection and/or restoring certain segments of the
shoreline in Barangays Caticlan (Caticlan side) and
Manoc-manoc (Boracay side) which, as reported by
experts, has been experiencing tremendous coastal
erosion.
For the project to be self-liquidating, however, we will
be developing the reclaimed land for commercial and
tourism-related
facilities
and
for
other
complementary uses.35 (Emphasis ours.)
Then, on November 19, 2009, the Sangguniang
Panlalawigan enacted Resolution No. 2009-299 36
authorizing Governor Marquez to enter into a
Memorandum of Agreement (MOA) with respondent
PRA in the implementation of the Beach Zone
Restoration and Protection Marina Development
Project, which shall reclaim a total of 40 hectares in
the areas adjacent to the jetty ports at Barangay
Caticlan
and
Barangay
Manoc-manoc.
The
Sangguniang Panlalawigan approved the terms and
conditions of the necessary agreements for the
implementation of the bond flotation of respondent
Province to fund the renovation/rehabilitation of the
existing jetty port by way of enhancement and
recovery of the Old Caticlan shoreline through
reclamation of an area of 2.64 hectares in the
amount of P260,000,000.00 on December 1, 2009.37
Respondent Province gave an initial presentation of
the project with consultation to the Sangguniang
Bayan of Malay38 on December 9, 2009.
Respondent PRA approved the reclamation project on
April 20, 2010 in its Resolution No. 4094 and

authorized its General Manager/Chief Executive

Officer (CEO) to enter into a MOA with respondent
Province for the implementation of the reclamation
project.39

e. October 12, 2010 at the Office of

the Provincial Governor with the
Provincial Development Council
Executive Committee;48 and

On April 27, 2010, DENR-EMB RVI issued to

respondent Province ECC-R6-1003-096-7100 (the
questioned ECC) for Phase 1 of the Reclamation
Project to the extent of 2.64 hectares to be done
along the Caticlan side beside the existing jetty
port.40

f. October 29, 2010 at the Office of

the
Provincial
Governor
with
Officials
of
LGU-Malay
and
49
Petitioner.

On May 17, 2010, respondent Province entered into a

MOA41 with respondent PRA. Under Article III, the
Project was described therein as follows:
The proposed Aklan Beach Zone Restoration and
Protection Marina Development Project involves the
reclamation and development of approximately forty
(40) hectares of foreshore and offshore areas of the
Municipality of Malay x x x.
The land use development of the reclamation project
shall be for commercial, recreational and institutional
and other applicable uses.42 (Emphases supplied.)
It was at this point that respondent Province deemed
it necessary to conduct a series of what it calls
"information-education campaigns," which provided
the venue for interaction and dialogue with the
public, particularly the Barangay and Municipal
officials of the Municipality of Malay, the residents of
Barangay Caticlan and Boracay, the stakeholders,
and the non-governmental organizations (NGOs). The
details of the campaign are summarized as follows 43 :
a. June 17, 2010 at Casa Pilar
Beach Resort, Boracay Island,
Malay, Aklan;44
b. July 28, 2010 at Caticlan Jetty
Port and Passenger Terminal;45
c. July 31, 2010
Caticlan Plaza;46

at

Barangay

d. September 15, 2010 at the

Office of the Provincial Governor
with Municipal Mayor of Malay
Mayor John P. Yap;47

Petitioner claims that during the "public consultation

meeting" belatedly called by respondent Province on
June 17, 2010, respondent Province presented the
Reclamation Project and only then detailed the
actions that it had already undertaken, particularly:
the issuance of the Caticlan Super Marina Bonds; the
execution of the MOA with respondent PRA; the
alleged conduct of an Environmental Impact
Assessment (EIA) study for the reclamation project;
and the expansion of the project to forty (40)
hectares from 2.64 hectares.50
In Resolution No. 046, Series of 2010, adopted on
June 23, 2010, the Malay Municipality reiterated its
strong opposition to respondent Provinces project
and denied its request for a favorable endorsement
of the Marina Project.51
The
Malay
Municipality
subsequently
issued
Resolution No. 016, Series of 2010, adopted on
August 3, 2010, to request respondent PRA "not to
grant reclamation permit and notice to proceed to
the Marina Project of the [respondent] Provincial
Government of Aklan located at Caticlan, Malay,
Aklan."52
In a letter53 dated October 12, 2010, petitioner
informed respondent PRA of its opposition to the
reclamation project, primarily for the reason that,
based on the opinion of Dr. Porfirio M. Alio, an
expert from the University of the Philippines Marine
Science Institute (UPMSI), which he rendered based
on the documents submitted by respondent Province
to obtain the ECC, a full EIA study is required to
assess the reclamation projects likelihood of
rendering critical and lasting effect on Boracay
considering the proximity in distance, geographical
location, current and wind direction, and many other
environmental considerations in the area. Petitioner
noted that said documents had failed to deal with
coastal erosion concerns in Boracay. It also noted
that respondent Province failed to comply with
certain
mandatory
provisions
of
the
Local
Government Code, particularly, those requiring the

project proponent to conduct consultations with

stakeholders.
Petitioner likewise transmitted its Resolution No. 001,
Series of 2010, registering its opposition to the
reclamation
project
to
respondent
Province,
respondent PRA, respondent DENR-EMB, the National
Economic Development Authority Region VI, the
Malay Municipality, and other concerned entities.54
Petitioner
alleges
that
despite
the
Malay
Municipalitys denial of respondent Provinces
request for a favorable endorsement, as well as the
strong opposition manifested both by Barangay
Caticlan and petitioner as an NGO, respondent
Province still continued with the implementation of
the Reclamation Project.55
On July 26, 2010, the Sangguniang Panlalawigan of
respondent Province set aside Resolution No. 046, s.
2010, of the Municipality of Malay and manifested its
support for the implementation of the aforesaid
project through its Resolution No. 2010-022.56
On July 27, 2010, the MOA was confirmed by
respondent PRA Board of Directors under its
Resolution No. 4130. Respondent PRA wrote to
respondent Province on October 19, 2010, informing
the latter to proceed with the reclamation and
development of phase 1 of site 1 of its proposed
project. Respondent PRA attached to said letter its
Evaluation Report dated October 18, 2010.57
Petitioner likewise received a copy of respondent
PRAs letter dated October 19, 2010, which
authorized respondent Province to proceed with
phase 1 of the reclamation project, subject to
compliance with the requirements of its Evaluation
Report. The reclamation project was described as:
"[A] seafront development involving reclamation of
an aggregate area of more or less, forty (40)
hectares in two (2) separate sites both in Malay
Municipality, Aklan Province. Site 1 is in Brgy.
Caticlan with a total area of 36.82 hectares and Site
2 in Brgy. Manoc-Manoc, Boracay Island with a total
area of 3.18 hectares. Sites 1 and 2 are on the
opposite sides of Tabon Strait, about 1,200 meters
apart. x x x." 58 (Emphases added.)
The Sangguniang Panlalawigan of Aklan, through
Resolution
No.
2010-034,59
addressed
the
apprehensions of petitioner embodied in its
Resolution No. 001, s. 2010, and supported the

implementation of the project. Said resolution stated

that the apprehensions of petitioner with regard to
the economic, social and political negative impacts of
the projects were mere perceptions and generalities
and were not anchored on definite scientific, social
and political studies.
In the meantime, a study was commissioned by the
Philippine Chamber of Commerce and IndustryBoracay (PCCI-Boracay), funded by the Department
of Tourism (DOT) with the assistance of, among
others, petitioner. The study was conducted in
November 2010 by several marine biologists/experts
from the Marine Environmental Resources Foundation
(MERF) of the UPMSI. The study was intended to
determine the potential impact of a reclamation
project in the hydrodynamics of the strait and on the
coastal erosion patterns in the southern coast of
Boracay Island and along the coast of Caticlan.60
After noting the objections of the respective LGUs of
Caticlan and Malay, as well as the apprehensions of
petitioner, respondent Province issued a notice to the
contractor on December 1, 2010 to commence with
the construction of the project.61
On April 4, 2011, the Sangguniang Panlalawigan of
Aklan, through its Committee on Cooperatives, Food,
Agriculture, and Environmental Protection and the
Committee on Tourism, Trade, Industry and
Commerce, conducted a joint committee hearing
wherein the study undertaken by the MERF-UPMSI
was discussed.62 In attendance were Mr. Ariel Abriam,
President of PCCI-Boracay, representatives from the
Provincial Government, and Dr. Cesar Villanoy, a
professor from the UPMSI. Dr. Villanoy said that the
subject project, consisting of 2.64 hectares, would
only have insignificant effect on the hydrodynamics
of the strait traversing the coastline of Barangay
Caticlan and Boracay, hence, there was a distant
possibility that it would affect the Boracay coastline,
which includes the famous white-sand beach of the
island.63
Thus, on April 6, 2011, the Sangguniang
Panlalawigan of Aklan enacted Resolution No. 201106564 noting the report on the survey of the channel
between Caticlan and Boracay conducted by the
UPMSI in relation to the effects of the ongoing
reclamation to Boracay beaches, and stating that Dr.
Villanoy had admitted that nowhere in their study
was it pointed out that there would be an adverse
effect on the white-sand beach of Boracay.

During the First Quarter Regular Meeting of the

Regional Development Council, Region VI (RDC-VI) on
April 16, 2011, it approved and supported the subject
project (covering 2.64 hectares) through RDC-VI
Resolution No. VI-26, series of 2011.65
Subsequently, Mr. Abriam sent a letter to Governor
Marquez dated April 25, 2011 stating that the study
conducted by the UPMSI confirms that the water flow
across the Caticlan-Boracay channel is primarily tidedriven, therefore, the marine scientists believe that
the 2.64-hectare project of respondent Province
would not significantly affect the flow in the channel
and would unlikely impact the Boracay beaches.
Based on this, PCCI-Boracay stated that it was not
opposing the 2.64-hectare Caticlan reclamation
project on environmental grounds.66
On June 1, 2011, petitioner filed the instant Petition
for Environmental Protection Order/Issuance of the
Writ of Continuing Mandamus. On June 7, 2011, this
Court issued a Temporary Environmental Protection
Order (TEPO) and ordered the respondents to file
their respective comments to the petition.67
After receiving a copy of the TEPO on June 9, 2011,
respondent Province immediately issued an order to
the Provincial Engineering Office and the concerned
contractor to cease and desist from conducting any
construction activities until further orders from this
Court.
The petition is premised on the following grounds:
I.
The respondent Province, proponent of the
reclamation project, failed to comply with relevant
rules and regulations in the acquisition of an ECC.
A. The reclamation project is colocated
within
environmentally
critical
areas
requiring
the
performance
of
a
full,
or
programmatic,
environmental
impact assessment.
B. Respondent Province failed to
obtain the favorable endorsement
of the LGU concerned.
C. Respondent Province failed to
conduct the required consultation

procedures as required by the Local

Government Code.
D. Respondent Province failed to
perform
a
full
environmental
impact assessment as required by
law and relevant regulations.
II.
The reclamation of land bordering the strait between
Caticlan and Boracay shall adversely affect the frail
ecological balance of the area.68
Petitioner
objects
to
respondent
Provinces
classification of the reclamation project as single
instead of co-located, as "non-environmentally
critical," and as a mere "rehabilitation" of the existing
jetty port. Petitioner points out that the reclamation
project is on two sites (which are situated on the
opposite sides of Tabon Strait, about 1,200 meters
apart):

36.82 hectares Site 1, in Bgy.

Caticlan

3.18 hectares Site 2, in Manocmanoc, Boracay Island69

Phase 1, which was started in December 2010

without the necessary permits,70 is located on the
Caticlan side of a narrow strait separating mainland
Aklan from Boracay. In the implementation of the
project, respondent Province obtained only an ECC to
conduct Phase 1, instead of an ECC on the entire 40
hectares. Thus, petitioner argues that respondent
Province abused and exploited the Revised
Procedural Manual for DENR Administrative Order No.
30, Series of 2003 (DENR DAO 2003-30)71 relating to
the acquisition of an ECC by:
1.
Declaring
the
reclamation
project under "Group II ProjectsNon-ECP (environmentally critical
project) in ECA (environmentally
critical area) based on the type and
size of the area," and
2.
Failing
to
declare
the
reclamation project as a co-located
project application which would
have required the Province to
submit
a
Programmatic

Environmental Impact Statement

(PEIS)72
or
Programmatic
Environmental
[Performance]
Report
Management
Plan
(PE[P]RMP).73 (Emphases ours.)
Petitioner further alleges that the Revised Procedural
Manual (on which the classification above is based,
which merely requires an Environmental Impact
Statement [EIS] for Group II projects) is patently ultra
vires, and respondent DENR-EMB RVI committed
grave abuse of discretion because the laws on EIS,
namely, Presidential Decree Nos. 1151 and 1586, as
well as Presidential Proclamation No. 2146, clearly
indicate that projects in environmentally critical
areas
are
to
be
immediately
considered
environmentally critical. Petitioner complains that
respondent Province applied for an ECC only for
Phase 1; hence, unlawfully
evading the requirement that co-located projects 74
within Environmentally Critical Areas (ECAs) must
submit a PEIS and/or a PEPRMP.
Petitioner
argues
that
respondent
Province
fraudulently classified and misrepresented the
project as a Non-ECP in an ECA, and as a single
project instead of a co-located one. The impact
assessment allegedly performed gives a patently
erroneous and wrongly-premised appraisal of the
possible environmental impact of the reclamation
project.
Petitioner
contends
that
respondent
Provinces choice of classification was designed to
avoid a comprehensive impact assessment of the
reclamation project.
Petitioner further contends that respondent DENREMB RVI willfully and deliberately disregarded its
duty to ensure that the environment is protected
from harmful developmental projects because it
allegedly performed only a cursory and superficial
review of the documents submitted by the
respondent Province for an ECC, failing to note that
all the information and data used by respondent
Province in its application for the ECC were all dated
and not current, as data was gathered in the late
1990s for the ECC issued in 1999 for the first jetty
port. Thus, petitioner alleges that respondent DENREMB RVI ignored the environmental impact to
Boracay, which involves changes in the structure of
the coastline that could contribute to the changes in
the characteristics of the sand in the beaches of both
Caticlan and Boracay.

Petitioner insists that reclamation of land at the

Caticlan side will unavoidably adversely affect the
Boracay side and notes that the declared objective of
the reclamation project is for the exploitation of
Boracays tourist trade, since the project is intended
to enhance support services thereto. But, petitioner
argues, the primary reason for Boracays popularity
is its white-sand beaches which will be negatively
affected by the project.
Petitioner alleges that respondent PRA had required
respondent Province to obtain the favorable
endorsement of the LGUs of Barangay Caticlan and
Malay Municipality pursuant to the consultation
procedures as required by the Local Government
Code.75 Petitioner asserts that the reclamation project
is in violation not only of laws on EIS but also of the
Local Government Code as respondent Province
failed to enter into proper consultations with the
concerned LGUs. In fact, the Liga ng mga BarangayMalay Chapter also expressed strong opposition
against the project.76
Petitioner cites Sections 26 and 27 of the Local
Government Code, which require consultations if the
project or program may cause pollution, climactic
change, depletion of non-renewable resources, etc.
According to petitioner, respondent Province ignored
the LGUs opposition expressed as early as 2008. Not
only that, respondent Province belatedly called for
public "consultation meetings" on June 17 and July
28, 2010, after an ECC had already been issued and
the MOA between respondents PRA and Province had
already been executed. As the petitioner saw it,
these were not consultations but mere "project
presentations."
Petitioner claims that respondent Province, aided and
abetted by respondents PRA and DENR-EMB, ignored
the spirit and letter of the Revised Procedural
Manual, intended to implement the various
regulations governing the Environmental Impact
Assessments (EIAs) to ensure that developmental
projects are in line with sustainable development of
natural resources. The project was conceptualized
without considering alternatives.
Further, as to its allegation that respondent Province
failed to perform a full EIA, petitioner argues that
while it is true that as of now, only the Caticlan side
has been issued an ECC, the entire project involves
the Boracay side, which should have been considered
a co-located project. Petitioner claims that any
project involving Boracay requires a full EIA since it is
an ECA. Phase 1 of the project will affect Boracay and

Caticlan as they are separated only by a narrow

strait; thus, it should be considered an ECP.
Therefore, the ECC and permit issued must be
invalidated and cancelled.
Petitioner contends that a study shows that the flow
of the water through a narrower channel due to the
reclamation project will likely divert sand transport
off the southwest part of Boracay, whereas the
characteristic coast of the Caticlan side of the strait
indicate stronger sediment transport.77 The whitesand beaches of Boracay and its surrounding marine
environment depend upon the natural flow of the
adjacent waters.
Regarding its claim that the reclamation of land
bordering the strait between Caticlan and Boracay
shall adversely affect the frail ecological balance of
the area, petitioner submits that while the study
conducted by the MERF-UPMSI only considers the
impact of the reclamation project on the land, it is
undeniable that it will also adversely affect the
already frail ecological balance of the area. The
effect of the project would have been properly
assessed if the proper EIA had been performed prior
to any implementation of the project.
According to petitioner, respondent Provinces
intended purposes do not prevail over its duty and
obligation to protect the environment. Petitioner
believes that rehabilitation of the Jetty Port may be
done through other means.
In its Comment78 dated June 21, 2011, respondent
Province claimed that application for reclamation of
40 hectares is advantageous to the Provincial
Government considering that its filing fee would only
cost Php20,000.00 plus Value Added Tax (VAT) which
is also the minimum fee as prescribed under Section
4.2 of Administrative Order No. 2007-2.79
Respondent Province considers the instant petition to
be premature; thus, it must necessarily fail for lack of
cause of action due to the failure of petitioner to fully
exhaust the available administrative remedies even
before seeking judicial relief. According to respondent
Province, the petition primarily assailed the decision
of respondent DENR-EMB RVI in granting the ECC for
the subject project consisting of 2.64 hectares and
sought the cancellation of the ECC for alleged failure
of
respondent
Province
to
submit
proper
documentation as required for its issuance. Hence,
the grounds relied upon by petitioner can be
addressed within the confines of administrative
processes provided by law.

Respondent Province believes that under Section

5.4.3 of DENR Administrative Order No. 2003-30
(DAO 2003-30),80 the issuance of an ECC 81 is an
official decision of DENR-EMB RVI on the application
of a project proponent.82 It cites Section 6 of DENR
DAO 2003-30, which provides for a remedy available
to the party aggrieved by the final decision on the
proponents ECC applications.
Respondent Province argues that the instant petition
is anchored on a wrong premise that results to
petitioners
unfounded
fears
and
baseless
apprehensions. It is respondent Provinces contention
that its 2.64-hectare reclamation project is
considered as a "stand alone project," separate and
independent from the approved area of 40 hectares.
Thus, petitioner should have observed the difference
between the "future development plan" of
respondent Province from its "actual project" being
undertaken.83
Respondent Province clearly does not dispute the
fact that it revised its original application to
respondent PRA from 2.64 hectares to 40 hectares.
However, it claims that such revision is part of its
future plan, and implementation thereof is "still
subject to availability of funds, independent scientific
environmental study, separate application of ECC
and notice to proceed to be issued by respondent
PRA."84
Respondent Province goes on to claim that
"[p]etitioners version of the Caticlan jetty port
expansion project is a bigger project which is still at
the conceptualization stage. Although this project
was described in the Notice to Proceed issued by
respondent PRA to have two phases, 36.82 hectares
in Caticlan and 3.18 hectares in Boracay [Island,] it is
totally different from the [ongoing] Caticlan jetty port
expansion project."85
Respondent Province says that the Accomplishment
Report86 of its Engineering Office would attest that
the actual project consists of 2.64 hectares only, as
originally planned and conceptualized, which was
even reduced to 2.2 hectares due to some
construction and design modifications.
Thus, respondent Province alleges that from its
standpoint, its capability to reclaim is limited to 2.64
hectares only, based on respondent PRAs Evaluation
Report87 dated October 18, 2010, which was in turn
the basis of the issuance of the Notice to Proceed
dated October 19, 2010, because the projects
financial component is P260,000,000.00 only. Said

Evaluation Report indicates that the implementation

of the other phases of the project including site 2,
which consists of the other portions of the 40-hectare
area that includes a portion in Boracay, is still within
the 10-year period and will depend largely on the
availability of funds of respondent Province.88
So, even if respondent PRA approved an area that
would total up to 40 hectares, it was divided into
phases in order to determine the period of its
implementation. Each phase was separate and
independent because the source of funds was also
separate. The required documents and requirements
were also specific for each phase. The entire
approved area of 40 hectares could be implemented
within a period of 10 years but this would depend
solely on the availability of funds.89
As far as respondent Province understands it,
additional reclamations not covered by the ECC,
which only approved 2.64 hectares, should undergo
another EIA. If respondent Province intends to
commence the construction on the other component
of the 40 hectares, then it agrees that it is mandated
to secure a new ECC.90
Respondent Province admits that it dreamt of a 40hectare project, even if it had originally planned and
was at present only financially equipped and legally
compliant to undertake 2.64 hectares of the project,
and only as an expansion of its old jetty port.91
Respondent Province claims that it has complied with
all the necessary requirements for securing an ECC.
On the issue that the reclamation project is within an
ECA requiring the performance of a full or
programmatic EIA, respondent Province reiterates
that the idea of expanding the area to 40 hectares is
only a future plan. It only secured an ECC for 2.64
hectares, based on the limits of its funding and
authority. From the beginning, its intention was to
rehabilitate and expand the existing jetty port
terminal to accommodate an increasing projected
traffic. The subject project is specifically classified
under DENR DAO 2003-30 on its Project Grouping
Matrix for Determination of EIA Report Type
considered as Minor Reclamation Projects falling
under Group II Non ECP in an ECA. Whether 2.64 or
40 hectares in area, the subject project falls within
this classification.
Consequently, respondent Province claims that
petitioner erred in considering the ongoing
reclamation project at Caticlan, Malay, Aklan, as colocated within an ECA.

Respondent Province, likewise argues that the 2.64hectare project is not a component of the approved
40-hectare area as it is originally planned for the
expansion site of the existing Caticlan jetty port. At
present, it has no definite conceptual construction
plan of the said portion in Boracay and it has no
financial allocation to initiate any project on the said
Boracay portion.
Furthermore, respondent Province contends that the
present project is located in Caticlan while the
alleged component that falls within an ECA is in
Boracay. Considering its geographical location, the
two sites cannot be considered as a contiguous area
for the reason that it is separated by a body of water
a strait that traverses between the mainland Panay
wherein Caticlan is located and Boracay. Hence, it is
erroneous to consider the two sites as a co-located
project within an ECA. Being a "stand alone project"
and an expansion of the existing jetty port,
respondent DENR-EMB RVI had required respondent
Province to perform an EPRMP to secure an ECC as
sanctioned by Item No. 8(b), page 7 of DENR DAO
2003-30.
Respondent Province contends that even if, granting
for the sake of argument, it had erroneously
categorized its project as Non-ECP in an ECA, this
was not a final determination. Respondent DENR-EMB
RVI, which was the administrator of the EIS system,
had the final decision on this matter. Under DENR
DAO 2003-30, an application for ECC, even for a
Category B2 project where an EPRMP is conducted,
shall be subjected to a review process. Respondent
DENR-EMB RVI had the authority to deny said
application. Its Regional Director could either issue
an ECC for the project or deny the application. He
may also require a more comprehensive EIA study.
The Regional Director issued the ECC based on the
EPRMP submitted by respondent Province and after
the same went through the EIA review process.
Thus, respondent Province concludes that petitioners
allegation of this being a "co-located project" is
premature if not baseless as the bigger reclamation
project is still on the conceptualization stage. Both
respondents PRA and Province are yet to complete
studies and feasibility studies to embark on another
project.
Respondent Province claims that an ocular survey of
the reclamation project revealed that it had worked
within the limits of the ECC.92

With regard to petitioners allegation that respondent

Province failed to get the favorable endorsement of
the concerned LGUs in violation of the Local
Government Code, respondent Province contends
that consultation vis--vis the favorable endorsement
from the concerned LGUs as contemplated under the
Local Government Code are merely tools to seek
advice and not a power clothed upon the LGUs to
unilaterally approve or disapprove any government
projects. Furthermore, such endorsement is not
necessary for projects falling under Category B2
unless required by the DENR-EMB RVI, under Section
5.3 of DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-2007
no longer requires the issuance of permits and
certifications as a pre-requisite for the issuance of an
ECC. Respondent Province claims to have conducted
consultative activities with LGUs in connection with
Sections 26 and 27 of the Local Government Code.
The vehement and staunch objections of both the
Sangguniang Barangay of Caticlan and the
Sangguniang Bayan of Malay, according to
respondent Province, were not rooted on its
perceived impact upon the people and the
community in terms of environmental or ecological
balance, but due to an alleged conflict with their
"principal position to develop, utilize and reap
benefits from the natural resources found within its
jurisdiction."93 Respondent Province argues that
these concerns are not within the purview of the
Local
Government
Code.
Furthermore,
the
Preliminary Geohazard Assessment Report and
EPRMP as well as Sangguniang Panlalawigan
Resolution Nos. 2010-022 and 2010-034 should
address any environmental issue they may raise.
Respondent Province posits that the spirit and intent
of Sections 26 and 27 of the Local Government Code
is to create an avenue for parties, the proponent and
the LGU concerned, to come up with a tool in
harmonizing its views and concerns about the
project. The duty to consult does not automatically
require adherence to the opinions during the
consultation process. It is allegedly not within the
provisions to give the full authority to the LGU
concerned to unilaterally approve or disapprove the
project in the guise of requiring the proponent of
securing its favorable endorsement. In this case,
petitioner is calling a halt to the project without
providing an alternative resolution to harmonize its
position and that of respondent Province.
Respondent Province claims that the EPRMP 94 would
reveal that:

[T]he area fronting the project site is practically

composed of sand. Dead coral communities may be
found along the vicinity. Thus, fish life at the project
site is quite scarce due to the absence of marine
support systems like the sea grass beds and coral
reefs.
x x x [T]here is no coral cover at the existing Caticlan
jetty port. [From] the deepest point of jetty to the
shallowest point, there was no more coral patch and
the substrate is sandy. It is of public knowledge that
the said foreshore area is being utilized by the
residents ever since as berthing or anchorage site of
their motorized banca. There will be no possibility of
any coral development therein because of its
continuous utilization. Likewise, the activity of the
strait that traverses between the main land Caticlan
and Boracay Island would also be a factor of the coral
development. Corals [may] only be formed within the
area if there is scientific human intervention, which is
absent up to the present.
In light of the foregoing premise, it casts serious
doubt on petitioners allegations pertaining to the
environmental effects of Respondent-LGUs 2.64
hectares
reclamation
project.
The
alleged
environmental impact of the subject project to the
beaches of Boracay Island remains unconfirmed.
Petitioner had unsuccessfully proven that the project
would cause imminent, grave and irreparable injury
to the community.95
Respondent Province prayed for the dissolution of the
TEPO, claiming that the rules provide that the TEPO
may be dissolved if it appears after hearing that its
issuance or continuance would cause irreparable
damage to the party or person enjoined, while the
applicant may be fully compensated for such
damages as he may suffer and subject to the posting
of a sufficient bond by the party or person enjoined.
Respondent Province contends that the TEPO would
cause irreparable damage in two aspects:
a.
Financial
dislocation
probable bankruptcy; and

and

b. Grave and imminent danger to

safety and health of inhabitants of
immediate area, including tourists
and passengers serviced by the
jetty port, brought about by the
abrupt cessation of development
works.

As regards financial dislocation, the arguments of

respondent Province are summarized below:
1. This project is financed by bonds
which the respondent Province had
issued to its creditors as the
financing scheme in funding the
present project is by way of credit
financing through bond flotation.
2. The funds are financed by a
Guarantee Bank getting payment
from
bonds,
being
sold
to
investors, which in turn would be
paid by the income that the project
would realize or incur upon its
completion.
3. While the project is under
construction, respondent Province
is appropriating a portion of its
Internal Revenue Allotment (IRA)
budget from the 20% development
fund to defray the interest and
principal amortization due to the
Guarantee Bank.
4. The respondent Provinces IRA,
regular income, and/or such other
revenues or funds, as may be
permitted by law, are being used
as security for the payment of the
said loan used for the projects
construction.
5. The inability of the subject
project to earn revenues as
projected upon completion will
compel the Province to shoulder
the full amount of the obligation,
starting from year 2012.
6.
Respondent
province
is
mandated to assign its IRA, regular
income and/or such other revenues
or funds as permitted by law; if
project is stopped, detriment of the
public
welfare
and
its
constituents.96
As to the second ground for the dissolution of the
TEPO, respondent Province argues:

1.
Non-compliance
with
the
guidelines of the ECC may result to
environmental
hazards
most
especially that reclaimed land if not
properly secured may be eroded
into the sea.
2.
The
construction
has
accomplished 65.26 percent of the
project. The embankment that was
deposited on the project has no
proper concrete wave protection
that might be washed out in the
event that a strong typhoon or big
waves may occur affecting the
strait and the properties along the
project site. It is already the rainy
season and there is a big possibility
of typhoon occurrence.
3. If said incident occurs, the
aggregates of the embankment
that had been washed out might be
transferred
to
the
adjoining
properties which could affect its
natural environmental state.
4. It might result to the total
alteration of the physical landscape
of
the
area
attributing
to
environmental disturbance.
5. The lack of proper concrete wave
protection or revetment would
cause the total erosion of the
embankment
that
has
been
dumped on the accomplished
area.97
Respondent Province claims that petitioner will not
stand to suffer immediate, grave and irreparable
injury or damage from the ongoing project. The
petitioners
perceived
fear
of
environmental
destruction brought about by its erroneous
appreciation of available data is unfounded and does
not translate into a matter of extreme urgency. Thus,
under the Rules of Procedure on Environmental
Cases, the TEPO may be dissolved.
Respondent PRA filed its Comment98 on June 22,
2011. It alleges that on June 24, 2006, Executive
Order No. 543 delegated the power "to approve
reclamation projects to respondent PRA through its
governing Board, subject to compliance with existing

laws and rules and further subject to the condition

that reclamation contracts to be executed with any
person or entity (must) go through public bidding."
Section 4 of respondent PRAs Administrative Order
No. 2007-2 provides for the approval process and
procedures for various reclamation projects to be
undertaken. Respondent PRA prepared an Evaluation
Report on November 5, 200999 regarding Aklans
proposal to increase its project to 40 hectares.
Respondent PRA contends that it was only after
respondent Province had complied with the
requirements under the law that respondent PRA,
through its Board of Directors, approved the
proposed project under its Board Resolution No.
4094.100 In the same Resolution, respondent PRA
Board authorized the General Manager/CEO to
execute a MOA with the Aklan provincial government
to implement the reclamation project under certain
conditions.
The issue for respondent PRA was whether or not it
approved the respondent Provinces 2.64-hectare
reclamation project proposal in willful disregard of
alleged "numerous irregularities" as claimed by
petitioner.101
Respondent PRA claims that its approval of the Aklan
Reclamation Project was in accordance with law and
its rules. Indeed, it issued the notice to proceed only
after Aklan had complied with all the requirements
imposed by existing laws and regulations. It further
contends that the 40 hectares involved in this project
remains a plan insofar as respondent PRA is
concerned. What has been approved for reclamation
by respondent PRA thus far is only the 2.64-hectare
reclamation project. Respondent PRA reiterates that
it approved this reclamation project after extensively
reviewing
the
legal,
technical,
financial,
environmental, and operational aspects of the
proposed reclamation.102
One of the conditions that respondent PRA Board
imposed before approving the Aklan project was that
no reclamation work could be started until
respondent PRA has approved the detailed
engineering
plans/methodology,
design
and
specifications of the reclamation. Part of the required
submissions to respondent PRA includes the drainage
design as approved by the Public Works Department
and the ECC as issued by the DENR, all of which the
Aklan government must submit to respondent PRA
before starting any reclamation works.103 Under
Article IV(B)(3) of the MOA between respondent PRA

and Aklan, the latter is required to submit, apart from

the ECC, the following requirements for respondent
PRAs review and approval, as basis for the issuance
of a Notice to Proceed (NTP) for Reclamation Works:
(a) Land-form plan with technical
description of the metes and
bounds of the same land-form;
(b) Final master development and
land use plan for the project;
(c) Detailed engineering studies,
detailed engineering design, plans
and specification for reclamation
works, reclamation plans and
methodology, plans for the sources
of fill materials;
(d) Drainage plan vis-a-vis the landform approved by DPWH Regional
Office to include a cost effective
and efficient drainage system as
may be required based on the
results of the studies;
(e) Detailed project cost estimates
and quantity take-off per items of
work of the rawland reclamation
components,
e.g.
reclamation
containment structures and soil
consolidation;
(f) Organizational chart of the
construction arm, manning table,
equipment schedule for the project;
and,
(g) Project timetable (PERT/CPM)
for the entire project construction
period.104
In fact, respondent PRA further required respondent
Province under Article IV (B)(24) of the MOA to
strictly comply with all conditions of the DENR-EMBissued ECC "and/or comply with pertinent local and
international commitments of the Republic of the
Philippines to ensure environmental protection."105
In its August 11, 2010 letter,106 respondent PRA
referred for respondent Provinces appropriate action
petitioners Resolution 001, series of 2010 and
Resolution 46, series of 2010, of the Sangguniang

Bayan of Malay. Governor Marquez wrote respondent

PRA107 on September 16, 2010 informing it that
respondent Province had already met with the
different officials of Malay, furnishing respondent PRA
with the copies of the minutes of such
meetings/presentations. Governor Marquez also
assured respondent PRA that it had complied with
the consultation requirements as far as Malay was
concerned.
Respondent PRA claims that in evaluating respondent
Provinces project and in issuing the necessary NTP
for Phase 1 of Site 1 (2.64 hectares) of the Caticlan
Jetty Port expansion and modernization, respondent
PRA gave considerable weight to all pertinent
issuances, especially the ECC issued by DENR-EMB
RVI.108 Respondent PRA stresses that its earlier
approval of the 40-hectare reclamation project under
its Resolution No. 4094, series of 2010, still requires
a second level of compliance requirements from the
proponent. Respondent Province could not possibly
begin its reclamation works since respondent PRA
had yet to issue an NTP in its favor.
Respondent PRA alleges that prior to the issuance of
the NTP to respondent Province for Phase 1 of Site 1,
it required the submission of the following preconstruction documents:
(a) Land-Form Plan (with technical
description);
(b) Site Development
Use Plan including,
(i) sewer and
systems and

Plan/Land

drainage

(ii) waste water treatment;

(c)
Engineering
Studies
Engineering Design;

and

(d) Reclamation Methodology;

(e) Sources of Fill Materials, and,
(f) The ECC.109
Respondent PRA claims that it was only after the
evaluation of the above submissions that it issued to
respondent Province the NTP, limited to the 2.64-

hectare reclamation project. Respondent PRA even

emphasized in its evaluation report that should
respondent Province pursue the other phases of its
project, it would still require the submission of an
ECC for each succeeding phases before the start of
any reclamation works.110
Respondent PRA, being the national governments
arm in regulating and coordinating all reclamation
projects in the Philippines a mandate conferred by
law manifests that it is incumbent upon it, in the
exercise of its regulatory functions, to diligently
evaluate, based on its technical competencies, all
reclamation projects submitted to it for approval.
Once the reclamation projects requirements set
forth by law and related rules have been complied
with, respondent PRA is mandated to approve the
same. Respondent PRA claims, "[w]ith all the
foregoing rigorous and detailed requirements
submitted and complied with by Aklan, and the
attendant careful and meticulous technical and legal
evaluation by respondent PRA, it cannot be argued
that the reclamation permit it issued to Aklan is
founded upon numerous irregularities; as recklessly
and baselessly imputed by BFI."111
In its Comment112 dated July 1, 2011, respondent
DENR-EMB RVI asserts that its act of issuing the ECC
certifies that the project had undergone the proper
EIA process by assessing, among others, the direct
and indirect impact of the project on the biophysical
and human environment and ensuring that these
impacts are addressed by appropriate environmental
protection and enhancement measures, pursuant to
Presidential Decree No. 1586, the Revised Procedural
Manual for DENR DAO 2003-30, and the existing
rules and regulations.113
Respondent DENR-EMB RVI stresses that the
declaration in 1978 of several islands, which includes
Boracay as tourist zone and marine reserve under
Proclamation No. 1801, has no relevance to the
expansion project of Caticlan Jetty Port and
Passenger Terminal for the very reason that the
project is not located in the Island of Boracay, being
located in Barangay Caticlan, Malay, which is not a
part of mainland Panay. It admits that the site of the
subject jetty port falls within the ECA under
Proclamation No. 2146 (1981), being within the
category of a water body. This was why respondent
Province had faithfully secured an ECC pursuant to
the Revised Procedural Manual for DENR DAO 200330 by submitting the necessary documents as
contained in the EPRMP on March 19, 2010, which
were the bases in granting ECC No. R6-1003-0967100 (amended) on April 27, 2010 for the expansion

of Caticlan Jetty Port and

covering 2.64 hectares.114

Passenger

Terminal,

Respondent DENR-EMB RVI claims that the issues

raised by the LGUs of Caticlan and Malay had been
considered by the DENR-Provincial Environment and
Natural Resources Office (PENRO), Aklan in the
issuance of the Order115 dated January 26, 2010,
disregarding the claim of the Municipality of Malay,
Aklan of a portion of the foreshore land in Caticlan
covered by the application of the Province of Aklan;
and another Order of Rejection dated February 5,
2010 of the two foreshore applications, namely FLA
No. 060412-43A and FLA No. 060412-43B, of the
Province of Aklan.116
Respondent DENR-EMB RVI contends that the
supporting documents attached to the EPRMP for the
issuance of an ECC were merely for the expansion
and modernization of the old jetty port in Barangay
Caticlan covering 2.64 hectares, and not the 40hectare reclamation project in Barangay Caticlan and
Boracay. The previous letter of respondent Province
dated October 14, 2009 addressed to DENR-EMB RVI
Regional Executive Director, would show that the
reclamation project will cover approximately 2.6
hectares.117 This application for ECC was not officially
accepted due to lack of requirements or documents.
Although petitioner insists that the project involves
40 hectares in two sites, respondent DENR-EMB RVI
looked at the documents submitted by respondent
Province and saw that the subject area covered by
the ECC application and subsequently granted with
ECC-R6-1003-096-7100 consists only of 2.64
hectares; hence, respondent DENR-EMB RVI could not
comment on the excess area.118
Respondent DENR-EMB RVI admits that as regards
the classification of the 2.64-hectare reclamation
project under "Non ECP in ECA," this does not fall
within the definition of a co-located project because
the subject project is merely an expansion of the old
Caticlan Jetty Port, which had a previously issued ECC
(ECC No. 0699-1012-171 on October 12, 1999). Thus,
only an EPRMP, not a PEIS or PEPRMP, is required. 119
Respondent Province submitted to respondent DENREMB RVI the following documents contained in the
EPRMP:
a. The Observations on the Floor
Bottom and its Marine Resources at
the Proposed Jetty Ports at Caticlan

and Manok-manok, Boracay, Aklan,

conducted in 1999 by the Bureau
of Fisheries Aquatic Resources
(BFAR) Central Office, particularly
in Caticlan site, and

DENR DAO 2003-30. There is no "extreme urgency

that necessitates the granting of Mandamus or
issuance of TEPO that put to balance between the life
and death of the petitioner or present grave or
irreparable damage to environment."123

b. The Study conducted by Dr.

Ricarte S. Javelosa, Ph. D, Mines
and Geosciences Bureau (MGB),
Central Office and Engr. Roger Esto,
Provincial
Planning
and
Development Office (PPDO), Aklan
in 2009 entitled "Preliminary Geohazard
Assessment
for
the
Enhancement
of the
Existing
Caticlan Jetty Port Terminal through
Beach
Zone
Restoration
and
Protective Marina Development in
Malay, Aklan."

After receiving the above Comments from all the

respondents, the Court set the case for oral
arguments on September 13, 2011.

Respondent DENR-EMB RVI claims that the above two

scientific studies were enough for it to arrive at a
best professional judgment to issue an amended ECC
for the Aklan Marina Project covering 2.64
hectares.120 Furthermore, to confirm that the 2.64hectare reclamation has no significant negative
impact with the surrounding environment particularly
in Boracay, a more recent study was conducted, and
respondent DENR-EMB RVI alleges that "[i]t is very
important to highlight that the input data in the
[MERF- UPMSI] study utilized the [40-hectare]
reclamation and [200-meter] width seaward using
the tidal and wave modelling." 121 The study showed
that the reclamation of 2.64 hectares had no effect to
the hydrodynamics of the strait between Barangay
Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no permits
and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to
the DENR Memorandum Circular No. 2007-08,
entitled "Simplifying the Requirements of ECC or CNC
Applications;" that the EPRMP was evaluated and
processed based on the Revised Procedural Manual
for DENR DAO 2003-30 which resulted to the
issuance of ECC-R6-1003-096-7100; and that the ECC
is not a permit per se but a planning tool for LGUs to
consider in its decision whether or not to issue a local
permit.122
Respondent DENR-EMB RVI concludes that in filing
this case, petitioner had bypassed and deprived the
DENR Secretary of the opportunity to review and/or
reverse the decision of his subordinate office, EMB
RVI pursuant to the Revised Procedural Manual for

Meanwhile, on September 8, 2011, respondent

Province filed a Manifestation and Motion 124 praying
for the dismissal of the petition, as the province was
no longer pursuing the implementation of the
succeeding phases of the project due to its inability
to comply with Article IV B.2(3) of the MOA; hence,
the issues and fears expressed by petitioner had
become moot. Respondent Province alleges that the
petition is "premised on a serious misappreciation of
the real extent of the contested reclamation project"
as certainly the ECC covered only a total of 2,691
square meters located in Barangay Caticlan, Malay,
Aklan; and although the MOA spoke of 40 hectares,
respondent Provinces submission of documents to
respondent PRA pertaining to said area was but the
first of a two-step process of approval. Respondent
Province claims that its failure to comply with the
documentary requirements of respondent PRA within
the period provided, or 120 working days from the
effectivity of the MOA, indicated its waiver to pursue
the remainder of the project.125 Respondent Province
further manifested:
Confirming this in a letter dated 12 August 2011, 126
Governor Marquez informed respondent PRA that the
Province of Aklan is no longer "pursuing the
implementation of the succeeding phases of the
project with a total area of 37.4 hectares for our
inability to comply with Article IV B.2 (3) of the MOA;
hence, the existing MOA will cover only the project
area of 2.64 hectares."
In his reply-letter dated August 22, 2011, 127
[respondent] PRA General Manager informed
Governor Marquez that the [respondent] PRA Board
of Directors has given [respondent] PRA the authority
to confirm the position of the Province of Aklan that
the "Aklan Beach Zone Restoration and Protection
Marine Development Project will now be confined to
the reclamation and development of the 2.64
hectares, more or less.
It is undisputed from the start that the coverage of
the Project is in fact limited to 2.64 hectares, as
evidenced by the NTP issued by respondent PRA. The

recent exchange of correspondence between

respondents Province of Aklan and [respondent] PRA
further confirms the intent of the parties all along.
Hence, the Project subject of the petition, without
doubt, covers only 2.64 and not 40 hectares as
feared. This completely changes the extent of the
Project and, consequently, moots the issues and
fears expressed by the petitioner.128 (Emphasis
supplied.)
Based on the above contentions, respondent
Province prays that the petition be dismissed as no
further justiciable controversy exists since the feared
adverse effect to Boracay Islands ecology had
become academic all together.129
The Court heard the parties oral arguments on
September 13, 2011 and gave the latter twenty (20)
days thereafter to file their respective memoranda.
Respondent Province filed another Manifestation and
Motion,130 which the Court received on April 2, 2012
stating that:
1. it had submitted the required
documents
and
studies
to
respondent DENR-EMB RVI before
an ECC was issued in its favor;
2. it had substantially complied
with the requirements provided
under PRA Administrative Order
2007-2, which compliance caused
respondent PRAs Board to approve
the reclamation project; and
3. it had conducted a series of
"consultative
[presentations]"
relative to the reclamation project
before
the
LGU
of
Malay
Municipality, the Barangay Officials
of Caticlan, and stakeholders of
Boracay Island.
Respondent Province further manifested that the
Barangay Council of Caticlan, Malay, Aklan enacted
on February 13, 2012 Resolution No. 003, series of
2012, entitled "Resolution Favorably Endorsing the
2.6 Hectares Reclamation/MARINA Project of the
Aklan Provincial Government at Caticlan Coastline" 131
and that the Sangguniang Bayan of the Municipality
of Malay, Aklan enacted Resolution No. 020, series of
2012, entitled "Resolution Endorsing the 2.6 Hectares

Reclamation Project of the Provincial Government of

Aklan Located at Barangay Caticlan, Malay, Aklan."132

requirements under the pertinent

laws and regulations

Respondent Province claims that its compliance with

the requirements of respondents DENR-EMB RVI and
PRA that led to the approval of the reclamation
project by the said government agencies, as well as
the recent enactments of the Barangay Council of
Caticlan and the Sangguniang Bayan of the
Municipality of Malay favorably endorsing the said
project, had "categorically addressed all the issues
raised by the Petitioner in its Petition dated June 1,
2011." Respondent Province prays as follows:

V. Whether or not there was proper,

timely,
and
sufficient
public
consultation for the project

WHEREFORE, premises considered, it is most

respectfully prayed of this Honorable Court that after
due proceedings, the following be rendered:
1. The Temporary Environmental
Protection Order (TEPO) it issued
on June 7, 2011 be lifted/dissolved.
2. The instant petition be dismissed
for being moot and academic.
3. Respondent Province of Aklan
prays for such other reliefs that are
just and equitable under the
premises.
(Emphases
in
the
original.)
ISSUES
The Court will now resolve the following issues:
I. Whether or not the petition
should be dismissed for having
been rendered moot and academic
II. Whether or not the petition is
premature
because
petitioner
failed to exhaust administrative
remedies before filing this case
III. Whether or not respondent
Province failed to perform a full EIA
as required by laws and regulations
based
on
the
scope
and
classification of the project
IV. Whether or not respondent
Province complied with all the

DISCUSSION
On the issue of whether or not the Petition should be
dismissed for having been rendered moot and
academic
Respondent Province claims in its Manifestation and
Motion filed on April 2, 2012 that with the alleged
favorable endorsement of the reclamation project by
the Sangguniang Barangay of Caticlan and the
Sangguniang Bayan of the Municipality of Malay, all
the issues raised by petitioner had already been
addressed, and this petition should be dismissed for
being moot and academic.
On the contrary, a close reading of the two LGUs
respective resolutions would reveal that they are not
sufficient to render the petition moot and academic,
as there are explicit conditions imposed that must be
complied with by respondent Province. In Resolution
No. 003, series of 2012, of the Sangguniang
Barangay of Caticlan it is stated that "any vertical
structures to be constructed shall be subject for
barangay endorsement."133 Clearly, what the
barangay endorsed was the reclamation only, and
not the entire project that includes the construction
of a commercial building and wellness center, and
other
tourism-related
facilities.
Petitioners
objections, as may be recalled, pertain not only to
the reclamation per se, but also to the building to be
constructed and the entire projects perceived ill
effects to the surrounding environment.
Resolution No. 020, series of 2012, of the
Sangguniang Bayan of Malay134 is even more specific.
It reads in part:
WHEREAS, noble it seems the reclamation project to
the effect that it will generate scores of benefits for
the Local Government of Malay in terms of income
and employment for its constituents, but the fact
cannot be denied that the project will take its toll on
the environment especially on the nearby fragile
island of Boracay and the fact also remains that the
project
will
eventually
displace
the
local
transportation operators/cooperatives;

WHEREAS, considering the sensitivity of the project,

this Honorable Body through the Committee where
this matter was referred conducted several
consultations/committee hearings with concerned
departments and the private sector specifically
Boracay Foundation, Inc. and they are one in its
belief that this Local Government Unit has never
been against development so long as compliance
with the law and proper procedures have been
observed and that paramount consideration have
been given to the environment lest we disturb the
balance of nature to the end that progress will be
brought to naught;
WHEREAS, time and again, to ensure a healthy
intergovernmental relations, this August Body
requires no less than transparency and faithful
commitment from the Provincial Government of
Aklan in the process of going through these
improvements in the Municipality because it once fell
prey to infidelities in matters of governance;
WHEREAS, as a condition for the grant of this
endorsement and to address all issues and concerns,
this Honorable Council necessitates a sincere
commitment from the Provincial Government of
Aklan to the end that:
1. To allocate an office space to
LGU-Malay within the building in
the reclaimed area;
2. To convene the Cagban and
Caticlan Jetty Port Management
Board before the resumption of the
reclamation project;
3. That the reclamation project
shall be limited only to 2.6 hectares
in Barangay Caticlan and not
beyond;
4. That the local transportation
operators/cooperatives will not be
displaced; and
5. The Provincial Government of
Aklan conduct a simultaneous
comprehensive
study
on
the
environmental
impact
of
the
reclamation
project
especially
during
Habagat
and
Amihan
seasons and put in place as early
as possible mitigating measures on

the effect of the project to the

environment.
WHEREAS, having presented these stipulations,
failure to comply herewith will leave this August Body
no choice but to revoke this endorsement, hence
faithful compliance of the commitment of the
Provincial Government is highly appealed for[.] 135
(Emphases added.)
The Sangguniang Bayan of Malay obviously imposed
explicit conditions for respondent Province to comply
with on pain of revocation of its endorsement of the
project, including the need to conduct a
comprehensive study on the environmental impact of
the reclamation project, which is the heart of the
petition before us. Therefore, the contents of the two
resolutions submitted by respondent Province do not
support its conclusion that the subsequent favorable
endorsement of the LGUs had already addressed all
the issues raised and rendered the instant petition
moot and academic.
On the issue of failure to exhaust administrative
remedies
Respondents, in essence, argue that the present
petition should be dismissed for petitioners failure to
exhaust administrative remedies and even to
observe the hierarchy of courts. Furthermore, as the
petition questions the issuance of the ECC and the
NTP, this involves factual and technical verification,
which are more properly within the expertise of the
concerned government agencies.
Respondents anchor their argument on Section 6,
Article II of DENR DAO 2003-30, which provides:
Section 6. Appeal
Any party aggrieved by the final decision on the
ECC / CNC applications may, within 15 days from
receipt of such decision, file an appeal on the
following grounds:
a. Grave abuse of discretion on the
part of the deciding authority, or
b. Serious errors in the review
findings.

The DENR may adopt alternative conflict/dispute

resolution procedures as a means to settle
grievances between proponents and aggrieved
parties to avert unnecessary legal action. Frivolous
appeals shall not be countenanced.

(Cipriano vs. Marcelino, 43 SCRA 291), when there is

no due process observed (Villanos vs. Subido, 45
SCRA 299), or where the protestant has no other
recourse (Sta. Maria vs. Lopez, 31 SCRA 637). 137
(Emphases supplied.)

The proponent or any stakeholder may file an appeal

to the following:

As petitioner correctly pointed out, the appeal

provided for under Section 6 of DENR DAO 2003-30 is
only applicable, based on the first sentence thereof,
if the person or entity charged with the duty to
exhaust the administrative remedy of appeal to the
appropriate government agency has been a party or
has been made a party in the proceedings wherein
the decision to be appealed was rendered. It has
been established by the facts that petitioner was
never made a party to the proceedings before
respondent DENR-EMB RVI. Petitioner was only
informed that the project had already been approved
after the ECC was already granted. 138 Not being a
party to the said proceedings, it does not appear that
petitioner was officially furnished a copy of the
decision, from which the 15-day period to appeal
should be reckoned, and which would warrant the
application of Section 6, Article II of DENR DAO 200330.

Deciding Authority
EMB
Regional
Director

Where to file the appeal

Office

Office of the EMB Director

EMB Central Office Director

Office of the DENR Secretary

DENR Secretary

Office of the President

(Emphases supplied.)
Respondents argue that since there is an
administrative appeal provided for, then petitioner is
duty bound to observe the same and may not be
granted recourse to the regular courts for its failure
to do so.
We do not agree with respondents appreciation of
the applicability of the rule on exhaustion of
administrative remedies in this case. We are
reminded of our ruling in Pagara v. Court of
Appeals,136 which summarized our earlier decisions
on the procedural requirement of exhaustion of
administrative remedies, to wit:
The rule regarding exhaustion of administrative
remedies is not a hard and fast rule. It is not
applicable (1) where the question in dispute is purely
a legal one, or (2) where the controverted act is
patently illegal or was performed without jurisdiction
or in excess of jurisdiction; or (3) where the
respondent is a department secretary, whose acts as
an alter ego of the President bear the implied or
assumed approval of the latter, unless actually
disapproved by him, or (4) where there are
circumstances indicating the urgency of judicial
intervention, - Gonzales vs. Hechanova, L-21897,
October 22, 1963, 9 SCRA 230; Abaya vs. Villegas, L25641, December 17, 1966, 18 SCRA; Mitra vs.
Subido, L-21691, September 15, 1967, 21 SCRA 127.
Said principle may also be disregarded when it does
not provide a plain, speedy and adequate remedy,

Although petitioner was not a party to the

proceedings where the decision to issue an ECC was
rendered, it stands to be aggrieved by the
decision,139 because it claims that the reclamation of
land on the Caticlan side would unavoidably
adversely affect the Boracay side, where petitioners
members own establishments engaged in the
tourism trade. As noted earlier, petitioner contends
that the declared objective of the reclamation project
is to exploit Boracays tourism trade because the
project is intended to enhance support services
thereto; however, this objective would not be
achieved since the white-sand beaches for which
Boracay is famous might be negatively affected by
the project. Petitioners conclusion is that respondent
Province, aided and abetted by respondents PRA and
DENR-EMB RVI, ignored the spirit and letter of our
environmental laws, and should thus be compelled to
perform their duties under said laws.
The new Rules of Procedure for Environmental Cases,
A.M. No. 09-6-8-SC, provides a relief for petitioner
under the writ of continuing mandamus, which is a
special civil action that may be availed of "to compel
the performance of an act specifically enjoined by
law"140 and which provides for the issuance of a TEPO
"as an auxiliary remedy prior to the issuance of the
writ itself."141 The Rationale of the said Rules explains
the writ in this wise:

Environmental law highlights the shift in the focalpoint from the initiation of regulation by Congress to
the implementation of regulatory programs by the
appropriate government agencies.
Thus, a government agencys inaction, if any, has
serious implications on the future of environmental
law enforcement. Private individuals, to the extent
that they seek to change the scope of the regulatory
process, will have to rely on such agencies to take
the initial incentives, which may require a judicial
component. Accordingly, questions regarding the
propriety of an agencys action or inaction will need
to be analyzed.
This point is emphasized in the availability of the
remedy of the writ of mandamus, which allows for
the enforcement of the conduct of the tasks to which
the writ pertains: the performance of a legal duty. 142
(Emphases added.)
The writ of continuing mandamus "permits the court
to retain jurisdiction after judgment in order to
ensure the successful implementation of the reliefs
mandated under the courts decision" and, in order
to do this, "the court may compel the submission of
compliance reports from the respondent government
agencies as well as avail of other means to monitor
compliance with its decision."143
According to petitioner, respondent Province acted
pursuant to a MOA with respondent PRA that was
conditioned upon, among others, a properly-secured
ECC from respondent DENR-EMB RVI. For this reason,
petitioner seeks to compel respondent Province to
comply with certain environmental laws, rules, and
procedures that it claims were either circumvented or
ignored. Hence, we find that the petition was
appropriately filed with this Court under Rule 8,
Section 1, A.M. No. 09-6-8-SC, which reads:
SECTION 1. Petition for continuing mandamus.
When any agency or instrumentality of the
government or officer thereof unlawfully neglects the
performance of an act which the law specifically
enjoins as a duty resulting from an office, trust or
station in connection with the enforcement or
violation of an environmental law rule or regulation
or a right therein, or unlawfully excludes another
from the use or enjoyment of such right and there is
no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court,
alleging the facts with certainty, attaching thereto
supporting evidence, specifying that the petition

concerns an environmental law, rule or regulation,

and praying that judgment be rendered commanding
the respondent to do an act or series of acts until the
judgment is fully satisfied, and to pay damages
sustained by the petitioner by reason of the
malicious neglect to perform the duties of the
respondent, under the law, rules or regulations. The
petition shall also contain a sworn certification of
non-forum shopping.
SECTION 2. Where to file the petition.The petition
shall be filed with the Regional Trial Court exercising
jurisdiction over the territory where the actionable
neglect or omission occurred or with the Court of
Appeals or the Supreme Court.
Petitioner had three options where to file this case
under the rule: the Regional Trial Court exercising
jurisdiction over the territory where the actionable
neglect or omission occurred, the Court of Appeals,
or this Court.
Petitioner had no other plain, speedy, or adequate
remedy in the ordinary course of law to determine
the questions of unique national and local
importance raised here that pertain to laws and rules
for environmental protection, thus it was justified in
coming to this Court.
Having resolved the procedural issue, we now move
to the substantive issues.
On the issues of whether, based on the scope and
classification of the project, a full EIA is required by
laws and regulations, and whether respondent
Province complied with all the requirements under
the pertinent laws and regulations
Petitioners arguments on this issue hinges upon its
claim that the reclamation project is misclassified as
a single project when in fact it is co-located.
Petitioner also questions the classification made by
respondent Province that the reclamation project is
merely an expansion of the existing jetty port, when
the project descriptions embodied in the different
documents filed by respondent Province describe
commercial establishments to be built, among
others, to raise revenues for the LGU; thus, it should
have been classified as a new project. Petitioner
likewise cries foul to the manner by which
respondent Province allegedly circumvented the
documentary requirements of the DENR-EMB RVI by
the act of connecting the reclamation project with its

previous project in 1999 and claiming that the new

project is a mere expansion of the previous one.
As previously discussed, respondent Province filed a
Manifestation and Motion stating that the ECC issued
by respondent DENR-EMB RVI covered an area of
2,691 square meters in Caticlan, and its application
for reclamation of 40 hectares with respondent PRA
was conditioned on its submission of specific
documents within 120 days. Respondent Province
claims that its failure to comply with said condition
indicated its waiver to pursue the succeeding phases
of the reclamation project and that the subject
matter of this case had thus been limited to 2.64
hectares. Respondent PRA, for its part, declared
through its General Manager that the "Aklan Beach
Zone Restoration and Protection Marine Development
Project will now be confined to the reclamation and
development of the 2.64 hectares, more or less." 144
The Court notes such manifestation of respondent
Province. Assuming, however, that the area involved
in the subject reclamation project has been limited to
2.64 hectares, this case has not become moot and
academic, as alleged by respondents, because the
Court still has to check whether respondents had
complied with all applicable environmental laws,
rules, and regulations pertaining to the actual
reclamation project.
We recognize at this point that the DENR is the
government agency vested with delegated powers to
review and evaluate all EIA reports, and to grant or
deny ECCs to project proponents.145 It is the DENR
that has the duty to implement the EIS system. It
appears, however, that respondent DENR-EMB RVIs
evaluation
of
this
reclamation
project
was
problematic, based on the valid questions raised by
petitioner.
Being the administrator of the EIS System,
respondent DENR-EMB RVIs submissions bear great
weight in this case. However, the following are the
issues that put in question the wisdom of respondent
DENR-EMB RVI in issuing the ECC:
1. Its approval of respondent
Provinces classification of the
project as a mere expansion of the
existing jetty port in Caticlan,
instead of classifying it as a new
project;

2.
Its
classification
of
the
reclamation project as a single
instead of a co-located project;
3. The lack of prior public
consultations and approval of local
government agencies; and
4. The lack of comprehensive
studies regarding the impact of the
reclamation
project
to
the
environment.
The above issues as raised put in question the
sufficiency of the evaluation of the project by
respondent DENR-EMB RVI.
Nature of the project
The first question must be answered by respondent
DENR-EMB RVI as the agency with the expertise and
authority to state whether this is a new project,
subject to the more rigorous environmental impact
study requested by petitioner, or it is a mere
expansion of the existing jetty port facility.
The second issue refers to the classification of the
project by respondent Province, approved by
respondent DENR-EMB RVI, as single instead of colocated. Under the Revised Procedural Manual, the
"Summary List of Additional Non-EnvironmentallyCritical Project (NECP) Types in ECAs Classified under
Group II" (Table I-2) lists "buildings, storage facilities
and other structures" as a separate item from
"transport terminal facilities." This creates the
question of whether this project should be considered
as consisting of more than one type of activity, and
should more properly be classified as "co-located,"
under the following definition from the same Manual,
which reads:
f) Group IV (Co-located Projects in either ECA or
NECA): A co-located project is a group of single
projects, under one or more proponents/locators,
which are located in a contiguous area and managed
by one administrator, who is also the ECC applicant.
The co-located project may be an economic zone or
industrial park, or a mix of projects within a
catchment, watershed or river basin, or any other
geographical, political or economic unit of area. Since
the location or threshold of specific projects within
the contiguous area will yet be derived from the EIA
process based on the carrying capacity of the project

environment, the nature of the project is called

"programmatic." (Emphasis added.)
Respondent DENR-EMB RVI should conduct a
thorough and detailed evaluation of the project to
address the question of whether this could be
deemed as a group of single projects (transport
terminal facility, building, etc.) in a contiguous area
managed by respondent Province, or as a single
project.
The third item in the above enumeration will be
discussed as a separate issue.
The answer to the fourth question depends on the
final classification of the project under items 1 and 3
above because the type of EIA study required under
the Revised Procedural Manual depends on such
classification.
The very definition of an EIA points to what was most
likely neglected by respondent Province as project
proponent, and what was in turn overlooked by
respondent DENR-EMB RVI, for it is defined as
follows:
An [EIA] is a process that involves predicting and
evaluating the likely impacts of a project (including
cumulative impacts) on the environment during
construction,
commissioning,
operation
and
abandonment. It also includes designing appropriate
preventive, mitigating and enhancement measures
addressing these consequences to protect the
environment and the communitys welfare.146
(Emphases supplied.)
Thus, the EIA process must have been able to predict
the likely impact of the reclamation project to the
environment and to prevent any harm that may
otherwise be caused.
The project now before us involves reclamation of
land that is more than five times the size of the
original reclaimed land. Furthermore, the area prior
to construction merely contained a jetty port,
whereas the proposed expansion, as described in the
EPRMP submitted by respondent Province to
respondent DENR-EMB RVI involves so much more,
and we quote:
The expansion project will be constructed at the
north side of the existing jetty port and terminal that
will have a total area of 2.64 hectares, more or less,

after reclamation. The Phase 1 of the project

construction costing around P260 million includes the
following:
1. Reclamation - 3,000
(expansion of jetty port)

sq

2. Reclamation - 13,500 sq m
(buildable area)
3. Terminal annex building - 250 sq
m
4. 2-storey commercial building
2,500 sq m (1,750 sq m of leasable
space)
5. Health and wellness center
6. Access road - 12 m (wide)
7. Parking, perimeter fences,
lighting
and water treatment
sewerage system
8. Rehabilitation of existing jetty
port and terminal
xxxx
The succeeding phases of the project will consist of
[further] reclamation, completion of the commercial
center building, bay walk commercial strip, staff
building, ferry terminal, a cable car system and wharf
marina. This will entail an additional estimated cost
of P785 million bringing the total investment
requirement to about P1.0 billion.147 (Emphases
added.)
As may be gleaned from the breakdown of the 2.64
hectares as described by respondent Province above,
a significant portion of the reclaimed area would be
devoted to the construction of a commercial building,
and the area to be utilized for the expansion of the
jetty port consists of a mere 3,000 square meters
(sq. m). To be true to its definition, the EIA report
submitted by respondent Province should at the very
least predict the impact that the construction of the
new buildings on the reclaimed land would have on
the
surrounding
environment.
These
new
constructions and their environmental effects were
not covered by the old studies that respondent

Province previously submitted for the construction of

the original jetty port in 1999, and which it resubmitted in its application for ECC in this alleged
expansion, instead of conducting updated and more
comprehensive studies.
Any impact on the Boracay side cannot be totally
ignored, as Caticlan and Boracay are separated only
by a narrow strait. This becomes more imperative
because of the significant contributions of Boracays
white-sand beach to the countrys tourism trade,
which requires respondent Province to proceed with
utmost caution in implementing projects within its
vicinity.
We had occasion to emphasize the duty of local
government units to ensure the quality of the
environment under Presidential Decree No. 1586 in
Republic of the Philippines v. The City of Davao, 148
wherein we held:
Section 15 of Republic Act 7160, otherwise known as
the Local Government Code, defines a local
government unit as a body politic and corporate
endowed with powers to be exercised by it in
conformity with law. As such, it performs dual
functions,
governmental
and
proprietary.
Governmental functions are those that concern the
health, safety and the advancement of the public
good or welfare as affecting the public generally.
Proprietary functions are those that seek to obtain
special corporate benefits or earn pecuniary profit
and intended for private advantage and benefit.
When
exercising
governmental
powers
and
performing governmental duties, an LGU is an
agency of the national government. When engaged
in corporate activities, it acts as an agent of the
community in the administration of local affairs.
Found in Section 16 of the Local Government Code is
the duty of the LGUs to promote the peoples right to
a balanced ecology. Pursuant to this, an LGU, like the
City of Davao, can not claim exemption from the
coverage of PD 1586. As a body politic endowed with
governmental functions, an LGU has the duty to
ensure the quality of the environment, which is the
very same objective of PD 1586.
xxxx
Section 4 of PD 1586 clearly states that "no person,
partnership or corporation shall undertake or operate
any such declared environmentally critical project or
area without first securing an Environmental

Compliance Certificate issued by the President or his

duly authorized representative." The Civil Code
defines a person as either natural or juridical. The
state and its political subdivisions, i.e., the local
government units are juridical persons. Undoubtedly
therefore, local government units are not excluded
from the coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said
law intends to implement the policy of the state to
achieve
a
balance
between
socio-economic
development and environmental protection, which
are the twin goals of sustainable development. The
above-quoted first paragraph of the Whereas clause
stresses that this can only be possible if we adopt a
comprehensive
and
integrated
environmental
protection program where all the sectors of the
community are involved, i.e., the government and
the private sectors. The local government units, as
part of the machinery of the government, cannot
therefore be deemed as outside the scope of the EIS
system.149 (Emphases supplied.)
The Court chooses to remand these matters to
respondent DENR-EMB RVI for it to make a proper
study, and if it should find necessary, to require
respondent Province to address these environmental
issues raised by petitioner and submit the correct EIA
report as required by the projects specifications. The
Court requires respondent DENR-EMB RVI to
complete its study and submit a report within a nonextendible period of three months. Respondent
DENR-EMB RVI should establish to the Court in said
report why the ECC it issued for the subject project
should not be canceled.
Lack of prior public consultation
The Local Government Code establishes the duties of
national government agencies in the maintenance of
ecological balance, and requires them to secure prior
public consultation and approval of local government
units for the projects described therein.
In the case before us, the national agency involved is
respondent PRA. Even if the project proponent is the
local government of Aklan, it is respondent PRA
which authorized the reclamation, being the
exclusive agency of the government to undertake
reclamation nationwide. Hence, it was necessary for
respondent Province to go through respondent PRA
and to execute a MOA, wherein respondent PRAs
authority to reclaim was delegated to respondent
Province. Respondent DENR-EMB RVI, regional office
of the DENR, is also a national government institution

which is tasked with the issuance of the ECC that is a

prerequisite to projects covered by environmental
laws such as the one at bar.
This project can be classified as a national project
that affects the environmental and ecological
balance of local communities, and is covered by the
requirements found in the Local Government Code
provisions that are quoted below:
Section 26. Duty of National Government Agencies in
the Maintenance of Ecological Balance. - It shall be
the duty of every national agency or governmentowned or controlled corporation authorizing or
involved in the planning and implementation of any
project or program that may cause pollution, climatic
change, depletion of non-renewable resources, loss
of crop land, rangeland, or forest cover, and
extinction of animal or plant species, to consult with
the local government units, nongovernmental
organizations, and other sectors concerned and
explain the goals and objectives of the project or
program, its impact upon the people and the
community in terms of environmental or ecological
balance, and the measures that will be undertaken to
prevent or minimize the adverse effects thereof.
Section 27. Prior Consultations Required. - No project
or program shall be implemented by government
authorities unless the consultations mentioned in
Sections 2 (c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where
such projects are to be implemented shall not be
evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the
Constitution.
In Lina, Jr. v. Pao,150 we held that Section 27 of the
Local Government Code applies only to "national
programs and/or projects which are to be
implemented in a particular local community" 151 and
that it should be read in conjunction with Section 26.
We held further in this manner:
Thus, the projects and programs mentioned in
Section 27 should be interpreted to mean projects
and programs whose effects are among those
enumerated in Section 26 and 27, to wit, those that:
(1) may cause pollution; (2) may bring about
climatic change; (3) may cause the depletion of nonrenewable resources; (4) may result in loss of crop
land, range-land, or forest cover; (5) may eradicate
certain animal or plant species from the face of the
planet; and (6) other projects or programs that may

call for the eviction of a particular group of people

residing in the locality where these will be
implemented. Obviously, none of these effects will be
produced by the introduction of lotto in the province
of Laguna.152 (Emphasis added.)
During the oral arguments held on September 13,
2011, it was established that this project as
described above falls under Section 26 because the
commercial establishments to be built on phase 1, as
described in the EPRMP quoted above, could cause
pollution as it could generate garbage, sewage, and
possible toxic fuel discharge.153
Our ruling in Province
Secretary154 is instructive:

of

Rizal

v.

Executive

We reiterated this doctrine in the recent case of

Bangus Fry Fisherfolk v. Lanzanas, where we held
that there was no statutory requirement for the
sangguniang bayan of Puerto Galera to approve the
construction of a mooring facility, as Sections 26 and
27 are inapplicable to projects which are not
environmentally critical.
Moreover, Section 447, which enumerates the
powers, duties and functions of the municipality,
grants the sangguniang bayan the power to, among
other things, "enact ordinances, approve resolutions
and appropriate funds for the general welfare of the
municipality and its inhabitants pursuant to Section
16 of th(e) Code." These include:
(1) Approving ordinances and
passing resolutions to protect the
environment
and
impose
appropriate penalties for acts
which endanger the environment,
such as dynamite fishing and other
forms of destructive fishing, illegal
logging and smuggling of logs,
smuggling of natural resources
products
and
of
endangered
species of flora and fauna, slash
and burn farming, and such other
activities which result in pollution,
acceleration of eutrophication of
rivers and lakes, or of ecological
imbalance; [Section 447 (1)(vi)]
(2) Prescribing reasonable limits
and restraints on the use of
property within the jurisdiction of
the
municipality,
adopting
a

comprehensive land use plan for

the municipality, reclassifying land
within the jurisdiction of the city,
subject to the pertinent provisions
of this Code, enacting integrated
zoning ordinances in consonance
with the approved comprehensive
land use plan, subject to existing
laws,
rules
and
regulations;
establishing fire limits or zones,
particularly in populous centers;
and regulating the construction,
repair or modification of buildings
within said fire limits or zones in
accordance with the provisions of
this Code; [Section 447 (2)(vi-ix)]
(3) Approving ordinances which
shall ensure the efficient and
effective delivery of the basic
services and facilities as provided
for under Section 17 of this Code,
and in addition to said services and
facilities,
providing
for
the
establishment,
maintenance,
protection, and conservation of
communal forests and watersheds,
tree parks, greenbelts, mangroves,
and
other
similar
forest
development
projects
and,
subject
to
existing
laws,
establishing and providing for the
maintenance, repair and operation
of an efficient waterworks system
to supply water for the inhabitants
and purifying the source of the
water
supply;
regulating
the
construction, maintenance, repair
and use of hydrants, pumps,
cisterns and reservoirs; protecting
the purity and quantity of the water
supply of the municipality and, for
this
purpose,
extending
the
coverage of appropriate ordinances
over all territory within the
drainage area of said water supply
and within one hundred (100)
meters of the reservoir, conduit,
canal, aqueduct, pumping station,
or watershed used in connection
with the water service; and
regulating the consumption, use or
wastage of water." [Section 447 (5)
(i) & (vii)]

Under the Local Government Code, therefore, two

requisites must be met before a national project that
affects the environmental and ecological balance of
local communities can be implemented: prior
consultation with the affected local communities, and
prior approval of the project by the appropriate
sanggunian. Absent either of these mandatory
requirements, the projects implementation is
illegal.155 (Emphasis added.)
Based on the above, therefore, prior consultations
and prior approval are required by law to have been
conducted and secured by the respondent Province.
Accordingly,
the
information
dissemination
conducted months after the ECC had already been
issued was insufficient to comply with this
requirement under the Local Government Code. Had
they been conducted properly, the prior public
consultation should have considered the ecological or
environmental concerns of the stakeholders and
studied measures alternative to the project, to avoid
or minimize adverse environmental impact or
damage. In fact, respondent Province once tried to
obtain
the
favorable
endorsement
of
the
Sangguniang Bayan of Malay, but this was denied by
the latter.
Moreover, DENR DAO 2003-30 provides:
5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of
public hearing as part of the EIS review is mandatory
unless otherwise determined by EMB. For all other
undertakings, a public hearing is not mandatory
unless specifically required by EMB.
Proponents should initiate public consultations early
in order to ensure that environmentally relevant
concerns of stakeholders are taken into consideration
in the EIA study and the formulation of the
management plan. All public consultations and public
hearings conducted during the EIA process are to be
documented. The public hearing/consultation Process
report shall be validated by the EMB/EMB RD and
shall constitute part of the records of the EIA process.
(Emphasis supplied.)
In essence, the above-quoted rule shows that in
cases requiring public consultations, the same should
be initiated early so that concerns of stakeholders
could be taken into consideration in the EIA study. In
this case, respondent Province had already filed its

ECC application before it met with

government units of Malay and Caticlan.

the

local

The claim of respondent DENR-EMB RVI is that no

permits and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to
the DENR Memorandum Circular No. 2007-08.
However, we still find that the LGC requirements of
consultation and approval apply in this case. This is
because a Memorandum Circular cannot prevail over
the Local Government Code, which is a statute and
which enjoys greater weight under our hierarchy of
laws.
Subsequent to the information campaign of
respondent Province, the Municipality of Malay and
the Liga ng mga Barangay-Malay Chapter still
opposed the project. Thus, when respondent Province
commenced the implementation project, it violated
Section 27 of the LGC, which clearly enunciates that
"[no] project or program shall be implemented by
government authorities unless the consultations
mentioned in Sections 2(c) and 26 hereof are
complied with, and prior approval of the sanggunian
concerned is obtained."
The lack of prior public consultation and approval is
not corrected by the subsequent endorsement of the
reclamation project by the Sangguniang Barangay of
Caticlan on February 13, 2012, and the Sangguniang
Bayan of the Municipality of Malay on February 28,
2012, which were both undoubtedly achieved at the
urging and insistence of respondent Province. As we
have established above, the respective resolutions
issued by the LGUs concerned did not render this
petition moot and academic.
It is clear that both petitioner and respondent
Province are interested in the promotion of tourism in
Boracay and the protection of the environment, lest
they kill the proverbial hen that lays the golden egg.
At the beginning of this decision, we mentioned that
there are common goals of national significance that
are very apparent from both the petitioners and the
respondents respective pleadings and memoranda.
The parties are evidently in accord in seeking to
uphold the mandate found in Article II, Declaration of
Principles and State Policies, of the 1987
Constitution, which we quote below:
SECTION 16. The State shall protect and advance the
right of the people to a balanced and healthful

ecology in accord with the rhythm and harmony of

nature.
xxxx
SECTION 20. The State recognizes the indispensable
role of the private sector, encourages private
enterprise, and provides incentives to needed
investments.
The protection of the environment in accordance with
the aforesaid constitutional mandate is the aim,
among others, of Presidential Decree No. 1586,
"Establishing an Environmental Impact Statement
System, Including Other Environmental Management
Related Measures and For Other Purposes," which
declared in its first Section that it is "the policy of the
State to attain and maintain a rational and orderly
balance between socio-economic growth and
environmental protection."
The parties undoubtedly too agree as to the
importance of promoting tourism, pursuant to
Section 2 of Republic Act No. 9593, or "The Tourism
Act of 2009," which reads:
SECTION 2. Declaration of Policy. The State declares
tourism as an indispensable element of the national
economy and an industry of national interest and
importance, which must be harnessed as an engine
of socioeconomic growth and cultural affirmation to
generate
investment,
foreign
exchange
and
employment, and to continue to mold an enhanced
sense of national pride for all Filipinos. (Emphasis
ours.)
The primordial role of local government units under
the Constitution and the Local Government Code of
1991 in the subject matter of this case is also
unquestionable. The Local Government Code of 1991
(Republic Act No. 7160) pertinently provides:
Section 2. Declaration of Policy. - (a) It is hereby
declared the policy of the State that the territorial
and political subdivisions of the State shall enjoy
genuine and meaningful local autonomy to enable
them to attain their fullest development as selfreliant communities and make them more effective
partners in the attainment of national goals. Toward
this end, the State shall provide for a more
responsive and accountable local government
structure
instituted
through
a
system
of
decentralization whereby local government units
shall
be
given
more
powers,
authority,

responsibilities, and resources. The process of

decentralization shall proceed from the national
government to the local government units. 156
(Emphases ours.)
As shown by the above provisions of our laws and
rules, the speedy and smooth resolution of these
issues would benefit all the parties. Thus, respondent
Provinces cooperation with respondent DENR-EMB
RVI in the Court-mandated review of the proper
classification and environmental impact of the
reclamation project is of utmost importance.
WHEREFORE, premises considered, the petition is
hereby PARTIALLY GRANTED.1wphi1 The TEPO
issued by this Court is hereby converted into a writ of
continuing mandamus specifically as follows:
1. Respondent Department of
Environment
and
Natural
Resources-Environmental
Management
Bureau
Regional
Office VI shall revisit and review
the following matters:
a. its classification of the
reclamation project as a
single instead of a colocated project;
b.
its
approval
of
respondent
Provinces
classification of the project
as a mere expansion of
the existing jetty port in
Caticlan,
instead
of
classifying it as a new
project; and
c. the impact of the
reclamation project to the
environment based on
new,
updated,
and
comprehensive
studies,
which should forthwith be
ordered by respondent
DENR-EMB RVI.
2. Respondent Province of Aklan
shall perform the following:
a. fully cooperate with
respondent DENR-EMB RVI

in its review of the

reclamation
project
proposal and submit to
the latter the appropriate
report and study; and
b. secure approvals from
local government units
and
hold
proper
consultations with nongovernmental
organizations and other
stakeholders and sectors
concerned as required by
Section 27 in relation to
Section 26 of the Local
Government Code.
3.
Respondent
Philippine
Reclamation Authority shall closely
monitor
the
submission
by
respondent
Province
of
the
requirements to be issued by
respondent DENR-EMB RVI in
connection to the environmental
concerns raised by petitioner, and
shall coordinate with respondent
Province in modifying the MOA, if
necessary, based on the findings of
respondent DENR-EMB RVI.
4.
The
petitioner
Boracay
Foundation,
Inc.
and
the
respondents The Province of Aklan,
represented by Governor Carlito S.
Marquez,
The
Philippine
Reclamation Authority, and The
DENR-EMB
(Region
VI)
are
mandated
to
submit
their
respective reports to this Court
regarding their compliance with the
requirements set forth in this
Decision no later than three (3)
months
from
the
date
of
promulgation of this Decision.
5.
In
the
meantime,
the
respondents,
their
concerned
contractor/s, and/or their agents,
representatives or persons acting
in their place or stead, shall
immediately cease and desist from
continuing the implementation of
the project covered by ECC-R61003-096-7100 until further orders

from this Court. For this purpose,

the respondents shall report within
five (5) days to this Court the
status of the project as of their
receipt of this Decision, copy
furnished the petitioner.
This Decision is immediately executory.
SO ORDERED.

G.R. No. 130775

September 27, 2004

THE NATIONAL LIGA NG MGA BARANGAY,

represented by ALEX L. DAVID in his capacity
as National President and for his own Person,
President
ALEX
L.
DAVID,
petitioners,
vs.
HON. VICTORIA ISABEL A. PAREDES, Presiding
Judge, Regional Trial Court, Branch 124,
Caloocan City, and THE DEPARTMENT OF
INTERIOR
and
LOCAL
GOVERNMENT,
represented the HON. SECRETARY ROBERT Z.
BARBERS and MANUEL A. RAYOS, respondents.
DECISION
TINGA, J.:
At bottom, the present petition inquires into the
essential nature of the Liga ng mga Barangay and
questions the extent of the power of Secretary of the
Department of Interior and Local Government (DILG),
as alter ego of the President. More immediately, the
petition disputes the validity of the appointment of
the DILG as the interim caretaker of the Liga ng mga
Barangay.
On 11 June 1997, private respondent Manuel A.
Rayos [as petitioner therein], Punong Barangay of
Barangay 52, District II, Zone 5, District II, Caloocan
City, filed a petition for prohibition and mandamus,
with prayer for a writ of preliminary injunction and/or
temporary restraining order and damages before the
Regional Trial Court (RTC) of Caloocan, 1 alleging that
respondent therein Alex L. David [now petitioner],
Punong Barangay of Barangay 77, Zone 7, Caloocan
City and then president of the Liga Chapter of
Caloocan City and of the Liga ng mga Barangay
National Chapter, committed certain irregularities in
the notice, venue and conduct of the proposed
synchronized Liga ng mga Barangay elections in
1997. According to the petition, the irregularities
consisted of the following: (1) the publication of the
notice in the Manila Bulletin but without notifying in
writing the individual punong barangays of Caloocan
City;2 (2) the Notice of Meeting dated 08 June 1997
for the Liga Chapter of Caloocan City did not specify
whether the meeting scheduled on 14 June 1997 was
to be held at 8:00 a.m. or 8:00 p.m., and worse, the
meeting was to be held in Lingayen, Pangasinan;3
and (3) the deadline for the filing of the Certificates
of Candidacy having been set at 5:00 p.m. of the
third "day prior to the above election day", or on 11
June 1997,4 Rayos failed to meet said deadline since
he was not able to obtain a certified true copy of the

COMELEC Certificate of Canvas and Proclamation of

Winning Candidate, which were needed to be a
delegate, to vote and be voted for in the Liga
election. On 13 June 1997, the Executive Judge
issued a temporary restraining order (TRO), effective
for seventy-two (72) hours, enjoining the holding of
the general membership and election meeting of
Liga Chapter of Caloocan City on 14 June 1975.5
However, the TRO was allegedly not properly served
on herein petitioner David, and so the election for the
officers of the Liga-Caloocan was held as scheduled.6
Petitioner David was proclaimed President of the
Liga-Caloocan, and thereafter took his oath and
assumed the position of ex-officio member of the
Sangguniang Panlungsod of Caloocan.
On 17 July 1997, respondent Rayos filed a second
petition, this time for quo warranto, mandamus and
prohibition, with prayer for a writ of preliminary
injunction and/or temporary restraining order and
damages, against David, Nancy Quimpo, Presiding
Officer of the Sangguniang Panlungsod of Caloocan
City, and Secretary Barbers.7 Rayos alleged that he
was elected President of the Liga Caloocan Chapter
in the elections held on 14 June 1997 by the
members of the Caloocan Chapter pursuant to their
Resolution/Petition No. 001-97.8 On 18 July 1997, the
presiding judge granted the TRO, enjoining therein
respondents David, Quimpo and Secretary Barbers
from proceeding with the synchronized elections for
the Provincial and Metropolitan Chapters of the Liga
scheduled on 19 July 1997, but only for the purpose
of maintaining the status quo and effective for a
period not exceeding seventy-two (72) hours.9
Eventually, on 18 July 1997, at petitioner Davids
instance, Special Civil Action (SCA) No. C-512
pending before Branch 126 was consolidated with
SCA No. C-508 pending before Branch 124.10
Before the consolidation of the cases, on 25 July
1997, the DILG through respondent Secretary
Barbers, filed in SCA No. C-512 an Urgent Motion,11
invoking the Presidents power of general supervision
over all local government units and seeking the
following reliefs:
WHEREFORE, in the interest of the
much-needed delivery of basic
services to the people, the
maintenance of public order and to
further protect the interests of the
forty-one thousand barangays all

over
the
country,
herein
respondent respectfully prays:
a) That the Department of
the Interior and Local
Government
(DILG),
pursuant to its delegated
power
of
general
supervision, be appointed
as the Interim Caretaker
to manage and administer
the affairs of the Liga,
until such time that the
new set of National Liga
Officers shall have been
duly elected and assumed
office; ...12
The prayer for injunctive reliefs was anchored on the
following grounds: (1) the DILG Secretary exercises
the power of general supervision over all government
units by virtue of Administrative Order No. 267 dated
18 February 1992; (2) the Liga ng mga Barangay is a
government organization; (3) undue interference by
some local elective officials during the Municipal and
City Chapter elections of the Liga ng mga Barangay;
(4) improper issuance of confirmations of the elected
Liga Chapter officers by petitioner David and the
National Liga Board; (5) the need for the DILG to
provide remedies measured in view of the confusion
and chaos sweeping the Liga ng mga Barangay and
the incapacity of the National Liga Board to address
the problems properly.
On 31 July 1997, petitioner David opposed the DILGs
Urgent Motion, claiming that the DILG, being a
respondent in the case, is not allowed to seek any
sanction against a co-respondent like David, such as
by filing a cross-claim, without first seeking leave of
court.13 He also alleged that the DILGs request to be
appointed interim caretaker constitutes undue
interference in the internal affairs of the Liga, since
the Liga is not subject to DILG control and
supervision.14
Three (3) days after filing its Urgent Motion, on 28
July 1997, and before it was acted upon by the lower
court, the DILG through then Undersecretary Manuel
Sanchez, issued Memorandum Circular No. 97-176.15
It cited the reported violations of the Liga ng mga
Barangay Constitution and By-Laws by David and
"widespread chaos and confusion" among local
government officials as to who were the qualified exofficio Liga members in their respective sangunians.16
Pending the appointment of the DILG "as the Interim

Caretaker of the Liga ng mga Barangay by the court

and until the officers and board members of the
national Liga Chapter have been elected and have
assumed office," the Memorandum Circular directed
all provincial governors, vice governors, city mayors,
city vice mayors, members of the sangguniang
panlalawigan and panlungsod, DILG regional
directors and other concerned officers, as follows:

law and cannot be claimed or lost

through agreements or inaction by
individuals. What respondent David
may term as "interference" should
caretakership be allowed, this
Court would rather view as a
necessary and desirable corollary
to the exercise of supervision.19

1. All concerned are directed not to

recognize and/or honor any Liga
Presidents of the Provincial and
Metropolitan Chapters as ex-officio
members
of
the
sanggunian
concerned until further notice from
the Courts or this Department;

Political motivations must not preclude, hamper, or

obstruct the delivery of basic services and the
perquisites of public service. In this case, the fact of
confusion arising from conflicting appointments, nonaction, and uninformed or wavering decisions of the
incumbent National Liga Board/Directorate, having
been satisfactorily established, cannot simply be
brushed aside as being politically motivated or
arising therefrom. It is incumbent, therefore, that the
DILG exercise a more active role in the supervision of
the affairs and operations of the National Liga Board/
Directorate at least until such time that the regular
National Liga Board/Directorate may have been
elected, qualified and assumed office.20

2. All concerned are directed to

disregard
any
pronouncement
and/or directive issued by Mr. Alex
David on any issue or matter
relating to the affairs of the Liga ng
mga Barangay until further notice
from
the
Courts
or
this
Department.17
On 04 August 1997, public respondent Judge Victoria
Isabel A. Paredes issued the assailed order, 18 the
pertinent portions of which read, thus:
The authority of the DILG to
exercise
general
supervisory
jurisdiction over local government
units,
including
the
different
leagues created under the Local
Government Code of 1991 (RA
7160) finds basis in Administrative
Order No. 267 dated February 18,
1992. Specifically, Section 1 (a) of
the said Administrative Order
provides a broad premise for the
supervisory power of the DILG.
Administratively,
the
DILGs
supervision
has
been
tacitly
recognized by the local barangays,
municipalities, cities and provinces
as shown by the evidences
presented by respondent David
himself (See Annexes "A" to "C").
The fact that the DILG has sought
to refer the matters therein to the
National Liga Board/Directorate
does not ipso facto mean that it
has lost jurisdiction to act directly
therein. Jurisdiction is conferred by

xxx
WHEREFORE, premises considered,
the Urgent Motion of the DILG for
appointment as interim caretaker,
until such time that the regularly
elected National Liga Board of
Directors shall have qualified and
assumed office, to manage and
administer the affairs of the
National Liga Board, is hereby
GRANTED.21
On 11 August 1997, petitioner David filed an urgent
motion for the reconsideration of the assailed order
and to declare respondent Secretary Barbers in
contempt of Court.22 David claimed that the 04
August 1997 order divested the duly elected
members of the Board of Directors of the Liga
National Directorate of their positions without due
process of law. He also wanted Secretary Barbers
declared in contempt for having issued, through his
Undersecretary, Memorandum Circular No. 97-176,
even before respondent judge issued the questioned
order, in mockery of the justice system. He implied
that Secretary Barbers knew about respondent
judges questioned order even before it was
promulgated.23
On 11 August 1997, the DILG issued Memorandum
Circular No. 97-193,24 providing supplemental

guidelines for the 1997 synchronized elections of the

provincial and metropolitan chapters and for the
election of the national chapter of the Liga ng mga
Barangay. The Memorandum Circular set the
synchronized elections for the provincial and
metropolitan chapters on 23 August 1997 and for the
national chapter on 06 September 1997.
On 12 August 1997, the DILG issued a Certificate of
Appointment25 in favor of respondent Rayos as
president of the Liga ng mga Barangay of Caloocan
City. The appointment purportedly served as Rayoss
"legal basis for ex-officio membership in the
Sangguniang Panlungsod of Caloocan City" and "to
qualify and participate in the forthcoming National
Chapter Election of the Liga ng mga Barangay."26
On 23 August 1997, the DILG conducted the
synchronized elections of Provincial and Metropolitan
Liga Chapters. Thereafter, on 06 September 1997,
the National Liga Chapter held its election of officers
and board of directors, wherein James Marty L. Lim
was elected as President of the National Liga.27
On 01 October 1997, public respondent judge denied
Davids motion for reconsideration,28 ruling that there
was no factual or legal basis to reconsider the
appointment of the DILG as interim caretaker of the
National Liga Board and to cite Secretary Barbers in
contempt of court.29
On 10 October 1997, petitioners filed the instant
Petition for Certiorari30 under Rule 65 of the Rules of
Court, seeking to annul public respondent judges
orders of 04 August 1997 and 01 October 1997. They
dispute the latters opinion on the power of
supervision of the President under the Constitution,
through the DILG over local governments, which is
the same as that of the DILGs as shown by its
application of the power on the Liga ng mga
Barangay. Specifically, they claim that the public
respondent judges designation of the DILG as
interim caretaker and the acts which the DILG sought
to implement pursuant to its designation as such are
beyond the scope of the Chief Executives power of
supervision.
To support the petition, petitioners argue that under
Administrative Order No. 267, Series of 1992, the
power of general supervision of the President over
local government units does not apply to the Liga
and its various chapters precisely because the Liga is
not a local government unit, contrary to the stance of
the respondents.31

Section 507 of the Local Government Code (Republic

Act No. 7160)32 provides that the Liga shall be
governed by its own Constitution and By-laws.
Petitioners posit that the duly elected officers and
directors of the National Liga elected in 1994 had a
vested right to their positions and could only be
removed therefrom for cause by affirmative vote of
two-thirds (2/3) of the entire membership pursuant to
the Liga Constitution and By-Laws, and not by mere
issuances of the DILG, even if bolstered by the
dubious authorization of respondent judge.33 Thus,
petitioners claim that the questioned order divested
the then incumbent officers and directors of the Liga
of their right to their respective offices without due
process of law.
Assuming the Liga could be subsumed under the
term "local governments," over which the President,
through the DILG Secretary, has the power of
supervision,34 petitioners point out that still there is
no legal or constitutional basis for the appointment of
the DILG as interim caretaker. 35 They stress that the
actions contemplated by the DILG as interim
caretaker go beyond supervision, as what it had
sought and obtained was authority to alter, modify,
nullify or set aside the actions of the Liga Board of
Directors and even to substitute its judgment over
that of the latter which are all clearly one of
control.36 Petitioners question the appointment of
Rayos as Liga-Caloocan President since at that time
petitioner David was occupying that position which
was still the subject of the quo warranto proceedings
Rayos himself had instituted.37 Petitioners likewise
claim that DILG Memorandum Circular No. 97-193,
providing
supplemental
guidelines
for
the
synchronized elections of the Liga, replaced the
implementing rules adopted by the Liga pursuant to
its Constitution and By-laws.38 In fact, even before its
appointment as interim caretaker, DILG specifically
enjoined all heads of government units from
recognizing petitioner David and/or honoring any of
his pronouncements relating to the Liga.39
Petitioners rely on decision in Taule v. Santos,40
which, they claim, already passed upon the "extent
of authority of the then Secretary of Local
Government over the katipunan ng mga barangay or
the barangay councils," as it specifically ruled that
the "Secretary [of Local Government] has no
authority to pass upon the validity or regularity of the
election of officers of the katipunan."41
For his part, respondent Rayos avers that since the
Secretary of the DILG supervises the acts of local
officials by ensuring that they act within the scope of
their prescribed powers and functions and since

members of the various leagues, such as the Liga in

this case, are themselves officials of local
government units, it follows that the Liga members
are subject to the power of supervision of the DILG. 42
He adds that as the DILGs management and
administration of the Liga affairs was limited only to
the conduct of the elections, its actions were
consistent with its rule-making power and power of
supervision under existing laws.43 He asserts that in
assailing the appointment of the DILG as interim
caretaker, petitioners failed to cite any provision of
positive law in support of their stance. Thus, he adds,
"if a law is silent, obscure or insufficient, a judge may
apply a rule he sees fit to resolve the issue, as long
as the rule chosen is in harmony with general
interest, order, morals and public policy," 44 in
consonance with Article 9 of the Civil Code. 45
On the other hand, it is quite significant that the
Solicitor General has shared petitioners position. He
states that the DILGs act of managing and
administering the affairs of the National Liga Board
are not merely acts of supervision but plain
manifestations of control and direct takeover of the
functions of the National Liga Board,46 going beyond
the limits of the power of general supervision of the
President over local governments.47 Moreover, while
the Liga may be deemed a government organization,
it is not strictly a local government unit over which
the DILG has supervisory power.48
Meanwhile, on 24 September 1998, James Marty L.
Lim, the newly elected President of the National Liga,
filed a Motion for Leave to File Comment in
Intervention,49 with his Comment in Intervention
attached,50 invoking the validity of the DILGs actions
relative to the conduct of the Liga elections.51 In
addition, he sought the dismissal of the instant
petition on the following grounds: (1) the issue of
validity or invalidity of the questioned order has been
rendered moot and academic by the election of Liga
officers; (2) the turn-over of the administration and
management of Liga affairs to the Liga officers; and
(3) the recognition and acceptance by the members
of the Liga nationwide.52
In the interim, another petition, this time for
Prohibition with Prayer for a Temporary Restraining
Order,53 was filed by several presidents of Liga
Chapters, praying that this Court declare the DILG
Secretary and Undersecretary are not vested with
any constitutional or legal power to exercise control
or even supervision over the National Liga ng mga
Barangay, nor to take over the functions of its
officers or suspend its constitution; and declare void
any and all acts committed by respondents therein in

connection with their caretakership of the Liga.54 The

petition was consolidated with G.R. No. 130775, but
it was eventually dismissed because the petitioners
failed to submit an affidavit of service and proof of
service of the petition.55
Meanwhile, on 01 December 1998, petitioner David
died
and
was
substituted
by
his
legal
representatives.56
Petitioners have raised a number of issues. 57
Integrated and simplified, these issues boil down to
the question of whether or not respondent Judge
acted with grave abuse of discretion in appointing
the DILG as interim caretaker to administer and
manage the affairs of the National Liga Board, per its
order dated 04 August 1997. 58 In turn, the resolution
of the question of grave abuse of discretion entails a
couple of definitive issues, namely: (1) whether the
Liga ng mga Barangay is a government organization
that is subject to the DILG Secretarys power of
supervision over local governments as the alter ego
of the President, and (2) whether the respondent
Judges designation of the DILG as interim caretaker
of the Liga has invested the DILG with control over
the Liga and whether DILG Memorandum Circular No.
97-176, issued before it was designated as such
interim caretaker, and DILG Memorandum Circular
No. 97-193 and other acts which the DILG made in its
capacity as interim caretaker of the Liga, involve
supervision or control of the Liga.
However, the Court should first address the question
of mootness which intervenor Lim raised because,
according to him, during the pendency of the present
petition a general election was held; the new set of
officers and directors had assumed their positions;
and that supervening events the DILG had turnedover the management and administration of the Liga
to new Liga officers and directors.59 Respondent
Rayos has joined him in this regard. 60 Forthwith, the
Court declares that these supervening events have
not rendered the instant petition moot, nor removed
it from the jurisdiction of this Court.
This case transcends the elections ordered and
conducted by the DILG as interim caretaker of the
Liga and the Liga officers and directors who were
elected to replace petitioner David and the former
officers. At the core of the petition is the validity of
the DILGs "caretakership" of the Liga and the official
acts of the DILG as such caretaker which exceeded
the bounds of supervision and were exercise of
control. At stake in this case is the realization of the
constitutionally
ensconced
principle
of
local

government autonomy;61 the statutory objective to

enhance the capabilities of barangays and
municipalities "by providing them opportunities to
participate actively in the implementation of national
programs and projects;"62 and the promotion of the
avowed aim to ensure the independence and nonpartisanship of the Liga ng mga Barangay. The
mantle of local autonomy would be eviscerated and
remain an empty buzzword if unconstitutional, illegal
and unwarranted intrusions in the affairs of the local
governments are tolerated and left unchecked.
Indeed, it is the declared policy of the State that its
territorial and political subdivisions should enjoy
genuine meaningful local autonomy to enable them
to attain their fullest development as self-reliant
communities and make them more effective partners
in the attainment of national goals. 63 In the case of
De Leon v. Esguerra,64 the Court ruled that even
barangays are meant to possess genuine and
meaningful local autonomy so that they may develop
fully as self-reliant communities.65
Furthermore, well-entrenched is the rule that courts
will decide a question otherwise moot and academic
if it is "capable of repetition, yet evading review." 66
For the question of whether the DILG may validly be
appointed as interim caretaker, or assume a similar
position and perform acts pursuant thereto, is likely
to resurrect again, and yet the question may not be
decided before the actual assumption, or the
termination of said assumption even.
So too, dismissing the petition on the ground of
mootness could lead to the wrong impression that
the challenged order and issuances are valid. Verily,
that does not appear to be the correct conclusion to
make since by applying opposite precedents to the
issues the outcome points to invalidating the assailed
order and memorandum circulars.
The resolution of the issues of whether the Liga ng
mga Barangay is subject to DILG supervision, and
whether the questioned "caretakership" order of the
respondent judge and the challenged issuances and
acts of the DILG constitute control in derogation of
the Constitution, necessitates a brief overview of the
barangay, as the lowest LGU, and the Liga, as a
vehicle of governance and coordination.
As the basic political unit, the barangay serves as the
primary planning and implementing unit of
government policies, plans, programs, projects and
activities in the community, and as a forum wherein
the collective views of the people may be expressed,

crystallized and considered, and where disputes may

be amicably settled.67
On the other hand, the Liga ng mga Barangay68 is the
organization of all barangays, the primary purpose of
which is the determination of the representation of
the Liga in the sanggunians, and the ventilation,
articulation, and crystallization of issues affecting
barangay government administration and securing
solutions thereto, through proper and legal means. 69
The Liga ng mga Barangay shall have chapters at the
municipal, city and provincial and metropolitan
political subdivision levels.70 The municipal and city
chapters of the Liga are composed of the barangay
representatives from the municipality or city
concerned. The presidents of the municipal and city
chapters of the Liga form the provincial or
metropolitan political subdivision chapters of the
Liga. The presidents of the chapters of the Liga in
highly urbanized cities, provinces and the Metro
Manila area and other metropolitan political
subdivisions constitute the National Liga ng mga
Barangay.71
As conceptualized in the Local Government Code, the
barangay is positioned to influence and direct the
development of the entire country. This was heralded
by the adoption of the bottom-to-top approach
process of development which requires the
development plans of the barangay to be considered
in the development plans of the municipality, city or
province,72 whose plans in turn are to be taken into
account by the central government73 in its plans for
the development of the entire country. 74 The Liga is
the vehicle assigned to make this new development
approach materialize and produce results.
The presidents of the Liga at the municipal, city and
provincial levels, automatically become ex-officio
members of the Sangguniang Bayan, Sangguniang
Panlungsod
and
Sangguniang
Panlalawigan,
respectively. They shall serve as such only during
their term of office as presidents of the Liga
chapters, which in no case shall be beyond the term
of office of the sanggunian concerned.75
The Liga ng mga Barangay has one principal aim,
namely: to promote the development of barangays
and secure the general welfare of their inhabitants. 76
In line with this, the Liga is granted the following
functions and duties:
a) Give priority to programs
designed for the total development
of
the
barangays
and
in

consonance with the policies,

programs and projects of the
national government;
b) Assist in the education of
barangay residents for peoples
participation in local government
administration in order to promote
untied and concerted action to
achieve country-wide development
goals;
c) Supplement the efforts of
government in creating gainful
employment within the barangay;
d) Adopt measures to promote the
welfare of barangay officials;
e) Serve as forum of the barangays
in order to forge linkages with
government and non-governmental
organizations and thereby promote
the social, economic and political
well-being of the barangays; and
f) Exercise such other powers and
perform such other duties and
functions which will bring about
stronger ties between barangays
and promote the welfare of the
barangay inhabitants.77
The Ligas are primarily governed by the provisions of
the Local Government Code. However, they are
empowered to make their own constitution and bylaws to govern their operations. Sec. 507 of the Code
provides:
Sec. 507. Constitution and By-Laws
of the Liga and the Leagues. - All
other matters not herein otherwise
provided for affecting the internal
organization of the leagues of local
government
units
shall
be
governed
by
their respective
constitution and by-laws which are
hereby made suppletory to the
provision of this Chapter: Provided,
That said Constitution and By-laws
shall always conform to the
provision of the Constitution and
existing laws.

Pursuant to the Local Government

Code, the Liga ng mga Barangay
adopted its own Constitution and
By-Laws. It provides that the
corporate powers of the Liga,
expressed or implied, shall be
vested in the board of directors of
each level of the Liga which shall:

The 1935, 1973 and 1987 Constitutions uniformly

differentiate the Presidents power of supervision
over local governments and his power of control of
the executive departments bureaus and offices. 81
Similar to the counterpart provisions in the earlier
Constitutions, the provision in the 1987 Constitution
provision has been interpreted to exclude the power
of control.82

a) Have jurisdiction over

all officers, directors and
committees of the said
Liga; including the power
of
appointment,
assignment
and
delegation;

In the early case of Mondano v. Silvosa, et al.,83 this

Court defined supervision as "overseeing, or the
power or authority of an officer to see that
subordinate officers perform their duties, and to take
such action as prescribed by law to compel his
subordinates to perform their duties. Control, on the
other hand, means the power of an officer to alter or
modify or nullify or set aside what a subordinate
officer had done in the performance of his duties and
to substitute the judgment of the former for that of
the latter.84 In Taule v. Santos,85 the Court held that
the Constitution permits the President to wield no
more authority than that of checking whether a local
government or its officers perform their duties as
provided by statutory enactments.86 Supervisory
power, when contrasted with control, is the power of
mere oversight over an inferior body; it does not
include any restraining authority over such body.87

b)
Have
general
management
of
the
business, property, and
funds of said Liga;
c) Prepare and approve a
budget
showing
anticipated receipts and
expenditures for the year,
including the plans or
schemes
for
funding
purposes; and
d) Have the power to
suspend or remove from
office
any
officer
or
member of the said board
on grounds cited and in
the manner provided in
hereinunder provisions.78

The case of Drilon v. Lim88 clearly defined the extent

of supervisory power, thus:

The National Liga Board of Directors promulgated the

rules for the conduct of its Ligas general elections.79
And, as early as 28 April 1997, the Liga National
Chapter had already scheduled its general elections
on 14 June 1997.80

The supervisor or superintendent

merely sees to it that the rules are
followed, but he himself does not
lay down such rules, nor does he
have the discretion to modify or
replace them. If the rules are not
observed, he may order the work
done or re-done but only to
conform to the prescribed rules. He
may not prescribe his own manner
for the doing of the act. He has no
judgment on this matter except to
see that the rules are followed89

The controlling provision on the issues at hand is

Section 4, Article X of the Constitution, which reads
in part:

In Section 4, Article X of the Constitution applicable

to the Liga ng mga Barangay? Otherwise put, is the
Liga legally susceptible to DILG suspension?

Sec.
The
President
of
the
Philippines shall exercise general
supervision
over
local
governments.

This question was resolved in Bito-Onon v.

Fernandez,90 where the Court ruled that the
Presidents power of the general supervision, as
exercised therein by the DILG Secretary as his alter
ego, extends to the Liga ng mga Barangay.

Does the Presidents power of general supervision

extend to the liga ng mga barangay, which is not a
local government unit?
We rule in the affirmative. In Opinion No. 41, Series
of 1995, the Department of Justice ruled that the liga
ng mga barangay is a government organization,
being an association, federation, league or union
created by law or by authority of law, whose
members
are
either
appointed
or
elected
government officials. The Local Government Code
defines the liga ng mga barangay as an organization
of all barangays for the primary purpose of
determining the representation of the liga in the
sanggunians, and for ventilating, articulating and
crystallizing issues affecting barangay government
administration and securing, through proper and
legal means, solutions thereto.91
The rationale for making the Liga subject to DILG
supervision is quite evident, whether from the
perspectives of logic or of practicality. The Liga is an
aggroupment of barangays which are in turn
represented therein by their respective punong
barangays. The representatives of the Liga sit in an
ex officio capacity at the municipal, city and
provincial sanggunians. As such, they enjoy all the
powers and discharge all the functions of regular
municipal councilors, city councilors or provincial
board members, as the case may be. Thus, the Liga
is the vehicle through which the barangay
participates in the enactment of ordinances and
formulation of policies at all the legislative local
levels higher than the sangguniang barangay, at the
same time serving as the mechanism for the bottomto-top approach of development.
In the case at bar, even before the respondent Judge
designated the DILG as interim caretaker of the Liga,
on 28 July 1997, it issued Memorandum Circular No.
97-176, directing local government officials not to
recognize David as the National Liga President and
his pronouncements relating to the affairs of the
Liga. Not only was the action premature, it even
smacked of superciliousness and injudiciousness. The
DILG is the topmost government agency which
maintains
coordination
with,
and
exercises
supervision over local government units and its
multi-level leagues. As such, it should be forthright,
circumspect and supportive in its dealings with the
Ligas especially the Liga ng mga Barangay. The
indispensable role played by the latter in the
development of the barangays and the promotion of
the welfare of the inhabitants thereof deserve no less
than the full support and respect of the other
agencies of government. As the Court held in the

case of San Juan v. Civil Service Commission, 92 our

national officials should not only comply with the
constitutional provisions on local autonomy but
should also appreciate the spirit of liberty upon which
these provisions are based.93
When the respondent judge eventually appointed the
DILG as interim caretaker to manage and administer
the affairs of the Liga, she effectively removed the
management from the National Liga Board and
vested control of the Liga on the DILG. Even a
cursory glance at the DILGs prayer for appointment
as interim caretaker of the Liga "to manage and
administer the affairs of the Liga, until such time
that the new set of National Liga officers shall have
been duly elected and assumed office" reveals that
what the DILG wanted was to take control over the
Liga. Even if said "caretakership" was contemplated
to last for a limited time, or only until a new set of
officers assume office, the fact remains that it was a
conferment of control in derogation of the
Constitution.
With his Department already appointed as interim
caretaker of the Liga, Secretary Barbers nullified the
results of the Liga elections and promulgated DILG
Memorandum Circular No. 97-193 dated 11 August
1997, where he laid down the supplemental
guidelines for the 1997 synchronized elections of the
provincial and metropolitan chapters and for the
election of the national chapter of the Liga ng mga
Barangay; scheduled dates for the new provincial,
metropolitan and national chapter elections; and
appointed respondent Rayos as president of LigaCaloocan Chapter.
These acts of the DILG went beyond the sphere of
general
supervision
and
constituted
direct
interference with the political affairs, not only of the
Liga, but more importantly, of the barangay as an
institution. The election of Liga officers is part of the
Ligas internal organization, for which the latter has
already provided guidelines. In succession, the DILG
assumed stewardship and jurisdiction over the Liga
affairs, issued supplemental guidelines for the
election, and nullified the effects of the Ligaconducted elections. Clearly, what the DILG wielded
was the power of control which even the President
does not have.
Furthermore, the DILG assumed control when it
appointed respondent Rayos as president of the LigaCaloocan Chapter prior to the newly scheduled
general Liga elections, although petitioner Davids
term had not yet expired. The DILG substituted its

choice, who was Rayos, over the choice of majority of

the punong barangay of Caloocan, who was the
incumbent President, petitioner David. The latter was
elected and had in fact been sitting as an ex-officio
member of the sangguniang panlungsod in
accordance with the Liga Constitution and By-Laws.
Yet, the DILG extended the appointment to
respondent Rayos although it was aware that the
position was the subject of a quo warranto
proceeding instituted by Rayos himself, thereby
preempting the outcome of that case. It was bad
enough that the DILG assumed the power of control,
it was worse when it made use of the power with
evident bias and partiality.
As the entity exercising supervision over the Liga ng
mga Barangay, the DILGs authority over the Liga is
limited to seeing to it that the rules are followed, but
it cannot lay down such rules itself, nor does it have
the discretion to modify or replace them. In this
particular case, the most that the DILG could do was
review the acts of the incumbent officers of the Liga
in the conduct of the elections to determine if they
committed any violation of the Ligas Constitution
and By-laws and its implementing rules. If the
National Liga Board and its officers had violated Liga
rules, the DILG should have ordered the Liga to
conduct another election in accordance with the
Ligas own rules, but not in obeisance to DILGdictated guidelines. Neither had the DILG the
authority to remove the incumbent officers of the
Liga and replace them, even temporarily, with
unelected Liga officers.
Like the local government units, the Liga ng mga
Barangay is not subject to control by the Chief
Executive or his alter ego.
In the Bito-Onon94 case, this Court held that DILG
Memorandum Circular No. 97-193, insofar as it
authorized the filing of a petition for review of the
decision of the Board of Election Supervisors (BES)
with the regular courts in a post-proclamation
electoral protest, involved the exercise of control as
it in effect amended the guidelines already
promulgated by the Liga. The decision reads in part:
xxx. Officers in control, lay down
the rules in the doing of an act. If
they are not followed, it is
discretionary on his part to order
the act undone or redone by his
subordinate or he may even decide
to do it himself. Supervision does
not
cover
such
authority.

Supervising officers merely see to

it that the rules are followed, but
he himself does not lay down such
rules, nor does he have the
discretion to modify or replace
them. If the rules are not observed,
he may order the work done or redone to conform for to the
prescribed
rules.
He
cannot
prescribe his own manner the
doing of the act.
xxx
xxx. The amendment of the
GUIDELINES is more than an
exercise
of
the
power
of
supervision but is an exercise of
the power of control, which the
President does not have over the
LIGA. Although the DILG is given
the power to prescribe rules,
regulations and other issuances,
the Administrative Code limits its
authority to merely "monitoring
compliance by local government
units of such issuances. To monitor
means to "watch, observe or
check" and is compatible with the
power of supervision of the DILG
Secretary over local governments,
which is limited to checking
whether the local government unit
concerned or the officers thereof
perform their duties as per
statutory enactments. Besides, any
doubt as to the power of the DILG
Secretary to interfere with local
affairs should be resolved in favor
of the greater autonomy of the
local government.95
In Taule,96 the Court ruled that the Secretary of Local
Government had no authority to pass upon the
validity or regularity of the election of officers of
katipunan ng mga barangay or barangay councils. In
that case, a protest was lodged before the Secretary
of Local Government regarding several irregularities
in, and seeking the nullification of, the election of
officers of the Federation of Associations of Barangay
Councils (FABC) of Catanduanes. Then Local
Government Secretary Luis Santos issued a
resolution nullifying the election of officers and
ordered a new one to be conducted. The Court ruled:

Construing
the
constitutional
limitation on the power of general
supervision of the President over
local governments, We hold that
respondent
Secretary has
no
authority to pass upon the validity
or regularity of the officers of the
katipunan. To allow respondent
Secretary to do so will give him
more power than the law or the
Constitution grants. It will in effect
give him
control over
local
government officials for it will
permit him to interfere in a purely
democratic
and
non-partisan
activity aimed at strengthening the
barangay as the basic component
of local governments so that the
ultimate goal of fullest autonomy
may be achieved. In fact, his order
that the new elections to be
conducted be presided by the
Regional Director is a clear and
direct
interference
by
the
Department with the political
affairs of the barangays which is
not permitted by the limitation of
presidential power to general
supervision
over
local
governments.97
All given, the Court is convinced that the assailed
order was issued with grave abuse of discretion while
the acts of the respondent Secretary, including DILG
Memorandum Circulars No. 97-176 and No. 97-193,
are unconstitutional and ultra vires, as they all
entailed the conferment or exercise of control a
power which is denied by the Constitution even to
the President.
G.R. No. 175368
WHEREFORE, the Petition is GRANTED. The Order
of the Regional Trial Court dated 04 August 1997 is
SET ASIDE for having been issued with grave abuse
of discretion amounting to lack or excess of
jurisdiction.
DILG Memorandum Circulars No. 97-176 and No. 97193, are declared VOID for being unconstitutional
and ultra vires.

April 11, 2013

LEAGUE OF PROVINCES OF THE PHILIPPINES,

Petitioner,
vs.
DEPARTMENT OF ENVIRONMENT and NATURAL
RESOURCES and HON. ANGELO T. REYES, in his
capacity as Secretary of DENR, Respondents.
DECISION

No pronouncements as to costs.

PERALTA, J.:

SO ORDERED.

This is a petition for certiorari, prohibition and

mandamus,1 praying that this Court order the
following: ( 1) declare as unconstitutional Section

17(b)(3)(iii) of Republic Act (R.A.) No. 7160, otherwise

known as The Local Government Code of 1991 and
Section 24 of Republic Act (R.A.) No. 7076, otherwise
known as the People's Small-Scale Mining Act of
1991; (2) prohibit and bar respondents from
exercising control over provinces; and (3) declare as
illegal the respondent Secretary of the Department of
Energy and Natural Resources' (DENR) nullification,
voiding and cancellation of the Small-Scale Mining
permits issued by the Provincial Governor of Bulacan.
The Facts are as follows:
On March 28, 1996, Golden Falcon Mineral
Exploration Corporation (Golden Falcon) filed with the
DENR Mines and Geosciences Bureau Regional Office
No. III (MGB R-III) an Application for Financial and
Technical Assistance Agreement (FTAA) covering an
area of 61,136 hectares situated in the Municipalities
of San Miguel, San Ildefonso, Norzagaray and San
Jose del Monte, Bulacan.2
On April 29, 1998, the MGB R-III issued an Order
denying Golden Falcon's Application for Financial and
Technical Assistance Agreement for failure to secure
area clearances from the Forest Management Sector
and Lands Management Sector of the DENR Regional
Office No. III.3
On November 11, 1998, Golden Falcon filed an
appeal with the DENR Mines and Geosciences Bureau
Central Office (MGB-Central Office), and sought
reconsideration of the Order dated April 29, 1998.4
On February 10, 2004, while Golden Falcon's appeal
was pending, Eduardo D. Mercado, Benedicto S. Cruz,
Gerardo R. Cruz and Liberato Sembrano filed with the
Provincial Environment and Natural Resources Office
(PENRO) of Bulacan their respective Applications for
Quarry Permit (AQP), which covered the same area
subject of Golden Falcon's Application for Financial
and Technical Assistance Agreement.5
On July 16, 2004, the MGB-Central Office issued an
Order denying Golden Falcon's appeal and affirming
the MGB R-III's Order dated April 29, 1998.
On September 13, 2004, Atlantic Mines and Trading
Corporation (AMTC) filed with the PENRO of Bulacan
an Application for Exploration Permit (AEP) covering
5,281 hectares of the area covered by Golden
Falcon's Application for Financial and Technical
Assistance Agreement.6

On October 19, 2004, DENR-MGB Director Horacio C.

Ramos, in response to MGB R-III Director Arnulfo V.
Cabantog's memorandum query dated September 8,
2004, categorically stated that the MGB-Central
Office's Order dated July 16, 2004 became final on
August 11, 2004, fifteen (15) days after Golden
Falcon received the said Order, per the Certification
dated October 8, 2004 issued by the Postmaster II of
the Philippine Postal Corporation of Cainta, Rizal.7
Through letters dated May 5 and May 10, 2005,
AMTC notified the PENRO of Bulacan and the MGB RIII Director, respectively, that the subject Applications
for Quarry Permit fell within its (AMTC's) existing
valid and prior Application for Exploration Permit, and
the the former area of Golden Falcon was open to
mining location only on August 11, 2004 per the
Memorandum dated October 19, 2004 of the MGB
Director, Central Office.8
On June 24, 2005, Ricardo Medina, Jr., PENRO of
Bulacan, indorsed AMTC's letter to the Provincial
Legal Officer, Atty. Eugenio F. Resurreccion, for his
legal opinion on which date of denial of Golden
Falcon's application/appeal April 29, 1998 or July
16, 2004 is to be considered in the deliberation of
the Provincial Mining Regulatory Board (PMRB) for
the purpose of determining when the land subject of
the Applications for Quarry Permit could be
considered open for application.
On June 28, 2005, Provincial Legal Officer Eugenio
Resurreccion issued a legal opinion stating that the
Order dated July 16, 2004 of the MGB-Central Office
was a mere reaffirmation of the Order dated April 29,
1998 of the MGB R-III; hence, the Order dated April
29, 1998 should be the reckoning period of the denial
of the application of Golden Falcon.
On July 22, 2005, AMTC filed with the PMRB of
Bulacan a formal protest against the aforesaid
Applications for Quarry Permit on the ground that the
subject area was already covered by its Application
for Exploration Permit.9
On August 8, 2005, MGB R-III Director Cabantog, who
was the concurrent Chairman of the PMRB, endorsed
to the Provincial Governor of Bulacan, Governor
Josefina M. dela Cruz, the aforesaid Applications for
Quarry Permit that had apparently been converted to
Applications for Small-Scale Mining Permit of Eduardo
D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and
Lucila S. Valdez (formerly Liberato Sembrano). 10

On August 9, 2005, the PENRO of Bulacan issued four

memoranda recommending to Governor Dela Cruz
the approval of the aforesaid Applications for SmallScale Mining Permit.11
On August 10, 2005, Governor Dela Cruz issued the
corresponding Small-Scale Mining Permits in favor of
Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R.
Cruz and Lucila S. Valdez.12
Subsequently, AMTC appealed to respondent DENR
Secretary the grant of the aforesaid Small-Scale
Mining Permits, arguing that: (1) The PMRB of
Bulacan erred in giving due course to the
Applications for Small-Scale Mining Permit without
first resolving its formal protest; (2) The areas
covered by the Small-Scale Mining Permits fall within
the area covered by AMTC's valid prior Application for
Exploration Permit; (3) The Applications for Quarry
Permit were illegally converted to Applications for
Small-Scale Mining Permit; (4) DENR-MGB Director
Horacio C. Ramos' ruling that the subject areas
became open for mining location only on August 11,
2004 was controlling; (5) The Small-Scale Mining
Permits were null and void because they covered
areas that were never declared People's Small-Scale
Mining Program sites as mandated by Section 4 of
the People's Small-Scale Mining Act of 1991; and (6)
Iron ore is not considered as one of the quarry
resources, as defined by Section 43 of the Philippine
Mining Act of 1995, which could be subjects of an
Application for Quarry Permit.13
On August 8, 2006, respondent DENR Secretary
rendered a Decision14 in favor of AMTC. The DENR
Secretary agreed with MGB Director Horacio C.
Ramos that the area was open to mining location
only on August 11, 2004, fifteen (15) days after the
receipt by Golden Falcon on July 27, 2004 of a copy
of the MGB-Central Office's Order dated July 16,
2004, which Order denied Golden Falcon's appeal.
According to the DENR Secretary, the filing by Golden
Falcon of the letter-appeal suspended the finality of
the Order of denial issued on April 29, 1998 by the
Regional Director until the resolution of the appeal on
July 16, 2004 by the MGB-Central Office. He stated
that the Applications for Quarry Permit were filed on
February 10, 2004 when the area was still closed to
mining location; hence, the Small-Scale Mining
Permits granted by the PMRB and the Governor were
null and void. On the other hand, the DENR Secretary
declared that AMTC filed its Application for
Exploration Permit when the area was already open
to other mining applicants; thus, AMTCs Application
for Exploration Permit was valid. Moreover, the DENR
Secretary held that the questioned Small-Scale

Mining Permits were issued in violation of Section 4

of R.A. No. 7076 and beyond the authority of the
Provincial Governor pursuant to Section 43 of R.A.
No. 7942, because the area was never proclaimed to
be under the People's Small-Scale Mining Program.
Further, the DENR Secretary stated that iron ore
mineral is not considered among the quarry
resources.
The dispositive portion of the DENR Secretarys
Decision reads:
WHEREFORE, the Application for Exploration Permit,
AEP-III-02-04 of Atlantic Mines and Trading Corp. is
declared valid and may now be given due course.
The Small-Scale Mining Permits, SSMP-B-002-05 of
Gerardo Cruz, SSMP-B-003-05 of Eduardo D. Mercado,
SSMP-B-004-05 of Benedicto S. Cruz and SSMP-B-00505 of Lucila S. Valdez are declared NULL AND VOID.
Consequently, the said permits are hereby
CANCELLED.15
Hence, petitioner League of Provinces filed this
petition.
Petitioner is a duly organized league of local
governments incorporated under R.A. No. 7160.
Petitioner declares that it is composed of 81
provincial governments, including the Province of
Bulacan. It states that this is not an action of one
province alone, but the collective action of all
provinces through the League, as a favorable ruling
will not only benefit one province, but all provinces
and all local governments.
Petitioner raises these issues:
I
WHETHER OR NOT SECTION 17(B)(3)(III) OF THE,
1991 LOCAL GOVERNMENT CODE AND SECTION 24
OF THE PEOPLE'S SMALL-SCALE MINING ACT OF 1991
ARE UNCONSTITUTIONAL FOR PROVIDING FOR
EXECUTIVE CONTROL AND INFRINGING UPON THE
LOCAL AUTONOMY OF PROVINCES.
II
WHETHER OR NOT THE ACT OF RESPONDENT [DENR]
IN NULLIFYING, VOIDING AND CANCELLING THE
SMALL-SCALE MINING PERMITS AMOUNTS TO
EXECUTIVE CONTROL, NOT MERELY SUPERVISION

AND USURPS THE DEVOLVED POWERS OF ALL

PROVINCES.16
To start, the Court finds that petitioner has legal
standing to file this petition because it is tasked
under Section 504 of the Local Government Code of
1991 to promote local autonomy at the provincial
level;17 adopt measures for the promotion of the
welfare of all provinces and its officials and
employees;18 and exercise such other powers and
perform such other duties and functions as the
league may prescribe for the welfare of the
provinces.19

government units shall likewise exercise such other

powers and discharge such other functions and
responsibilities as are necessary, appropriate, or
incidental to efficient and effective provision of the
basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are
not limited to, the following:
xxxx
(3) For a Province:c

Before this Court determines the validity of an act of

a co-equal and coordinate branch of the Government,
it bears emphasis that ingrained in our jurisprudence
is the time-honored principle that a statute is
presumed to be valid.20 This presumption is rooted in
the doctrine of separation of powers which enjoins
upon the three coordinate departments of the
Government a becoming courtesy for each other's
acts.21 This Court, however, may declare a law, or
portions thereof, unconstitutional where a petitioner
has shown a clear and unequivocal breach of the
Constitution,22 leaving no doubt or hesitation in the
mind of the Court.23

xxxx

In this case, petitioner admits that respondent DENR

Secretary had the authority to nullify the Small-Scale
Mining Permits issued by the Provincial Governor of
Bulacan, as the DENR Secretary has control over the
PMRB, and the implementation of the Small-Scale
Mining Program is subject to control by respondent
DENR.

Sec. 24. Provincial/City Mining Regulatory Board. There is hereby created under the direct supervision
and control of the Secretary a provincial/city mining
regulatory board, herein called the Board, which shall
be the implementing agency of the Department, and
shall exercise the following powers and functions,
subject to review by the Secretary:

Control of the DENR/DENR Secretary over small-scale

mining in the provinces is granted by three statutes:
(1) R.A. No. 7061 or The Local Government Code of
1991; (2) R.A. No. 7076 or the People's Small Scale
Mining Act of 1991; and (3) R.A. No. 7942, otherwise
known as the Philippine Mining Act of 1995.24 The
pertinent provisions of law sought to be declared as
unconstitutional by petitioner are as follows:

(a) Declare and segregate existing

gold-rush areas for small-scale
mining;

R.A. No. 7061 (The Local Government Code of 1991)

SEC. 17. Basic Services and Facilities. - (a) Local
government units shall endeavor to be self-reliant
and shall continue exercising the powers and
discharging the duties and functions currently vested
upon them. They shall also discharge the functions
and responsibilities of national agencies and offices
devolved to them pursuant to this Code. Local

(iii) Pursuant to national policies and subject to

supervision, control and review of the DENR,
enforcement of forestry laws limited to communitybased forestry projects, pollution control law, smallscale mining law, and other laws on the protection of
the environment; and mini-hydro electric projects for
local purposes; x x x25
R.A. No. 7076 (People's Small-Scale Mining Act of
1991)

(b) Reserve future gold and other

mining
areas
for
small-scale
mining;
(c) Award contracts to small-scale
miners;
(d) Formulate and implement rules
and regulations related to smallscale mining;
(e) Settle disputes, conflicts or
litigations over conflicting claims

within
a
peoples
small-scale
mining area, an area that is
declared a small-mining; and
(f) Perform such other functions as
may be necessary to achieve the
goals and objectives of this Act.26
Petitioner contends that the aforecited laws and
DENR
Administrative
Order
No.
9640
(the
Implementing Rules and Regulations of the Philippine
Mining Act of 1995) did not explicitly confer upon
respondents DENR and the DENR Secretary the
power to reverse, abrogate, nullify, void, or cancel
the permits issued by the Provincial Governor or
small-scale mining contracts entered into by the
PMRB. The statutes are also silent as to the power of
respondent DENR Secretary to substitute his own
judgment over that of the Provincial Governor and
the PMRB.
Moreover, petitioner contends that Section 17 (b)(3)
(iii) of the Local Government Code of 1991 and
Section 24 of R.A. No. 7076, which confer upon
respondents DENR and the DENR Secretary the
power of control are unconstitutional, as the
Constitution states that the President (and Executive
Departments and her alter-egos) has the power of
supervision only, not control, over acts of the local
government units, and grants the local government
units autonomy, thus:
The 1987 Constitution:
Article X, Section 4. The President of the Philippines
shall exercise general supervision over local
governments. Provinces with respect to component
cities
and
municipalities,
and
cities
and
municipalities with respect to component barangays,
shall ensure that the acts of their component units
are within the scope of their prescribed powers and
functions.27
Petitioner contends that the policy in the above-cited
constitutional provision is mirrored in the Local
Government Code, which states:
SEC. 25. National Supervision over Local Government
Units. - (a) Consistent with the basic policy on local
autonomy, the President shall exercise general
supervision over local government units to ensure
that their acts are within the scope of their
prescribed powers and functions.

The President shall exercise supervisory authority

directly over provinces, highly urbanized cities, and
independent component cities; through the province
with respect to component cities and municipalities;
and through the city and municipality with respect to
barangays.28
Petitioner contends that the foregoing provisions of
the Constitution and the Local Government Code of
1991 show that the relationship between the
President and the Provinces or respondent DENR, as
the alter ego of the President, and the Province of
Bulacan is one of executive supervision, not one of
executive control. The term "control" has been
defined as the power of an officer to alter or modify
or set aside what a subordinate officer had done in
the performance of his/her duties and to substitute
the judgment of the former for the latter, while the
term "supervision" is the power of a superior officer
to see to it that lower officers perform their function
in accordance with law.29
Petitioner argues that respondent DENR Secretary
went beyond mere executive supervision and
exercised control when he nullified the small-scale
mining permits granted by the Provincial Governor of
Bulacan, as the former substituted the judgment of
the latter.
Petitioner asserts that what is involved here is a
devolved power.
Under the Local Government Code of 1991, the
power to regulate small-scale mining has been
devolved to all provinces. In the exercise of devolved
powers, departmental approval is not necessary. 30
Petitioner contends that if the provisions in Section
24 of R.A. No. 7076 and Section 17 (b)(3)(iii) of the
Local Government Code of 1991 granting the power
of control to the DENR/DENR Secretary are not
nullified, nothing would stop the DENR Secretary
from nullifying, voiding and canceling the small-scale
mining permits that have been issued by a Provincial
Governor.
Petitioner submits that the statutory grant of power
of control to respondents is unconstitutional, as the
Constitution only allows supervision over local
governments and proscribes control by the executive
departments.
In its Comment, respondents, represented by the
Office of the Solicitor General, stated that contrary to

the assertion of petitioner, the power to implement

the small-scale mining law is expressly limited in
Section 17 (b)(3)(iii) of the Local Government Code,
which provides that it must be carried out "pursuant
to national policies and subject to supervision,
control and review of the DENR." Moreover, the fact
that the power to implement the small-scale mining
law has not been fully devolved to provinces is
further amplified by Section 4 of the People's SmallScale Mining Act of 1991, which provides, among
others, that the People's Small-Scale Mining Program
shall be implemented by the DENR Secretary.
The petition lacks merit.
Paragraph 1 of Section 2, Article XII (National
Economy and Patrimony) of the Constitution 31
provides that "the exploration, development and
utilization of natural resources shall be under the full
control and supervision of the State."
Moreover, paragraph 3 of Section 2, Article XII of the
Constitution provides that "the Congress may, by
law, allow small-scale utilization of natural resources
by Filipino citizens x x x."
Pursuant to Section 2, Article XII of the Constitution,
R.A. No. 7076 or the People's Small-Scale Mining Act
of 1991, was enacted, establishing under Section 4
thereof a People's Small-Scale Mining Program to be
implemented by the DENR Secretary in coordination
with other concerned government agencies.
The People's Small-Scale Mining Act of 1991 defines
"small-scale mining" as "refer[ring] to mining
activities, which rely heavily on manual labor using
simple implement and methods and do not use
explosives or heavy mining equipment."32
It should be pointed out that the Administrative Code
of 198733 provides that the DENR is, subject to law
and higher authority, in charge of carrying out the
State's constitutional mandate, under Section 2,
Article XII of the Constitution, to control and
supervise the exploration, development, utilization
and conservation of the country's natural resources.
Hence, the enforcement of small-scale mining law in
the provinces is made subject to the supervision,
control and review of the DENR under the Local
Government Code of 1991, while the Peoples SmallScale Mining Act of 1991 provides that the Peoples
Small-Scale Mining Program is to be implemented by
the DENR Secretary in coordination with other
concerned local government agencies.

Indeed, Section 4, Article X (Local Government) of

the Constitution states that "[t]he President of the
Philippines shall exercise general supervision over
local governments," and Section 25 of the Local
Government Code reiterates the same. General
supervision by the President means no more than
seeing to it that laws are faithfully executed or that
subordinate officers act within the law.34

incidental to efficient and effective provision of the

basic services and facilities enumerated herein.

xxxx

called the Department, in coordination with other

concerned government agencies, designed to
achieve an orderly, systematic and rational scheme
for the small-scale development and utilization of
mineral resources in certain mineral areas in order to
address the social, economic, technical, and
environmental problems connected with small-scale
mining activities.

The Court has clarified that the constitutional

guarantee of local autonomy in the Constitution Art.
X, Sec. 2 refers to the administrative autonomy of
local government units or, cast in more technical
language, the decentralization of government
authority.35 It does not make local governments
sovereign
within
the
State.36
Administrative
autonomy may involve devolution of powers, but
subject to limitations like following national policies
or standards,37 and those provided by the Local
Government Code, as the structuring of local
governments and the allocation of powers,
responsibilities, and resources among the different
local government units and local officials have been
placed by the Constitution in the hands of Congress 38
under Section 3, Article X of the Constitution.

(3) For a Province:c

xxxx

xxxx

Sec. 24. Provincial/City Mining Regulatory Board.

There is hereby created under the direct supervision
and control of the Secretary a provincial/city mining
regulatory board, herein called the Board, which shall
be the implementing agency of the Department, and
shall exercise the following powers and functions,
subject to review by the Secretary:

Section 3, Article X of the Constitution mandated

Congress to "enact a local government code which
shall provide for a more responsive and accountable
local government structure instituted through a
system
of
decentralization
with
effective
mechanisms of recall, initiative, and referendum,
allocate among the different local government units
their powers, responsibilities, and resources, and
provide for the qualifications, election, appointment
and removal, term, salaries, powers and functions
and duties of local officials, and all other matters
relating to the organization and operation of the local
units."
In connection with the enforcement of the smallscale mining law in the province, Section 17 of the
Local Government Code provides:
SEC. 17. Basic Services and Facilities. - (a) Local
government units shall endeavor to be self-reliant
and shall continue exercising the powers and
discharging the duties and functions currently vested
upon them. They shall also discharge the functions
and responsibilities of national agencies and offices
devolved to them pursuant to this Code. Local
government units shall likewise exercise such other
powers and discharge such other functions and
responsibilities as are necessary, appropriate, or

(b) Such basic services and facilities include, but are

not limited to, the following:

(iii) Pursuant to national policies and subject to

supervision, control and review of the DENR,
enforcement of forestry laws limited to communitybased forestry projects, pollution control law, smallscale mining law, and other laws on the protection of
the environment; and mini-hydro electric projects for
local purposes;39
Clearly, the Local Government Code did not fully
devolve the enforcement of the small-scale mining
law to the provincial government, as its enforcement
is subject to the supervision, control and review of
the DENR, which is in charge, subject to law and
higher authority, of carrying out the State's
constitutional mandate to control and supervise the
exploration, development, utilization of the country's
natural resources.40
Section 17 (b)(3)(iii) of the Local Government Code of
1991 is in harmony with R.A. No. 7076 or the People's
Small-Scale Mining Act of 1991, 41 which established a
People's Small-Scale Mining Program to be
implemented by the Secretary of the DENR, thus:
Sec. 2. Declaration of Policy. It is hereby declared of
the State to promote, develop, protect and
rationalize viable small-scale mining activities in
order to generate more employment opportunities
and provide an equitable sharing of the nation's
wealth and natural resources, giving due regard to
existing rights as herein provided.
xxxx
Sec. 4. People's Small-Scale Mining Program. - For the
purpose of carrying out the declared policy provided
in Section 2 hereof, there is hereby established a
People's Small-Scale Mining Program to be
implemented by the Secretary of the Department of
Environment and Natural Resources, hereinafter

(a) Declare and segregate

existing gold-rush areas
for small-scale mining;
(b) Reserve future gold
and other mining areas for
small-scale mining;
(c) Award contracts
small-scale miners;

to

(d)
Formulate
and
implement
rules
and
regulations
related
to
small-scale mining;
(e)
Settle
disputes,
conflicts or litigations over
conflicting claims within a
peoples
small-scale
mining area, an area that
is declared a small-mining;
and
(f) Perform such other
functions as may be
necessary to achieve the
goals and objectives of
this Act.42
DENR Administrative Order No. 34, series of 1992,
containing the Rules and Regulations to implement
R.A. No. 7076, provides:

SEC. 21. Administrative Supervision over the People's

Small-Scale Mining Program. The following DENR
officials shall exercise the following supervisory
functions in the implementation of the Program:
21.1 DENR Secretrary
direct
supervision
and
control over the program
and activities of the smallscale miners within the
people's
small-scale
mining area;
21.2
Director
Director shall:

the

a.
Recommend
the
depth
or
length
of
the
tunnel or adit
taking
into
account the: (1)
size
of
membership and
capitalization of
the cooperative;
(2)
size
of
mineralized
areas;
(3)
quantity
of
mineral deposits;
(4)
safety
of
miners; and (5)
environmental
impact and other
considerations;
b. Determine the
right of smallscale miners to
existing facilities
in
consultation
with
the
operator,
claimowner,
landowner
or
lessor
of
an
affected
area
upon declaration
of a small-scale
mining area;
c. Recommend to
the Secretary the
withdrawal of the

status
of
the
people's
smallscale mining area
when it can no
longer be feasibly
operated on a
small-scale basis;
and
d. See to it that
the
small-scale
mining
contractors abide
by
small-scale
mines
safety
rules
and
regulations.

from the Board's decision

to the Secretary for final
resolution otherwise the
same is considered final
and executory; and
22.6 Performs such other
functions as may be
necessary to achieve the
goals and objectives of
R.A. 7076.
SEC. 6. Declaration of People's Small-Scale Mining
Areas. The Board created under R.A. 7076 shall
have the authority to declare and set aside People's
Small-Scale Mining Areas in sites onshore suitable for
small-scale mining operations subject to review by
the DENR Secretary thru the Director.43

xxxx
SEC. 22. Provincial/City Mining Regulatory Board.
The Provincial/City Mining Regulatory Board created
under R.A. 7076 shall exercise the following powers
and functions, subject to review by the Secretary:
22.1
Declares
and
segregates existing gold
rush area for small-scale
mining;
22.2 Reserves for the
future,
mineralized
areas/mineral lands for
people's
small-scale
mining;
22.3 Awards contracts to
small-scale
miners
cooperative;
22.4
Formulates
and
implements
rules
and
regulations related to R.A.
7076;
22.5
Settles
disputes,
conflicts or litigations over
conflicting claims within
ninety (90) days upon
filing
of
protests
or
complaints; Provided, That
any aggrieved party may
appeal within five (5) days

DENR Administrative Order No. 23, otherwise known

as the Implementing Rules and Regulations of R.A.
No. 7942, otherwise known as the Philippine Mining
Act of 1995, adopted on August 15, 1995, provides
under Section 12344 thereof that small-scale mining
applications should be filed with the PMRB45 and the
corresponding permits shall be issued by the
Provincial Governor, except small-scale mining
applications within the mineral reservations.
Thereafter, DENR Administrative Order No. 96-40,
otherwise known as the Revised Implementing Rules
and Regulations of R.A. No. 7942, otherwise known
as the Philippine Mining Act of 1995, adopted on
December 19, 1996, provides that applications for
Small-Scale Mining Permits shall be filed with the
Provincial
Governor/City
Mayor
through
the
concerned Provincial/City Mining Regulatory Board for
areas outside the Mineral Reservations and with the
Director though the Bureau for areas within the
Mineral Reservations.46 Moreover, it provides that
Local Government Units shall, in coordination with
the Bureau/ Regional Offices and subject to valid and
existing mining rights, "approve applications for
small-scale mining, sand and gravel, quarry x x x and
gravel permits not exceeding five (5) hectares."47
Petitioner contends that the Local Government Code
of 1991, R.A. No. 7076, DENR Administrative Orders
Nos. 95-23 and 96-40 granted the DENR Secretary
the broad statutory power of control, but did not
confer upon the respondents DENR and DENR
Secretary the power to reverse, abrogate, nullify,
void, cancel the permits issued by the Provincial
Governor or small-scale mining contracts entered
into by the Board.

The contention does not persuade.

The settlement of disputes over conflicting claims in
small-scale mining is provided for in Section 24 of
R.A. No. 7076, thus:
Sec. 24. Provincial/City Mining Regulatory Board.
There is hereby created under the direct supervision
and control of the Secretary a provincial/city mining
regulatory board, herein called the Board, which shall
be the implementing agency of the Department, and
shall exercise the following powers and functions,
subject to review by the Secretary:
xxxx
(e) Settle disputes, conflicts or litigations over
conflicting claims within a people's small-scale
mining area, an area that is declared a small mining
area; x x x
Section 24, paragraph (e) of R.A. No. 7076 cited
above is reflected in Section 22, paragraph 22.5 of
the Implementing Rules and Regulations of R.A. No.
7076, to wit:
SEC. 22. Provincial/City Mining Regulatory Board.
The Provincial/City Mining Regulatory Board created
under R.A. No. 7076 shall exercise the following
powers and functions, subject to review by the
Secretary:
xxxx
22.5 Settles disputes, conflicts or litigations over
conflicting claims within ninety (90) days upon filing
of protests or complaints; Provided, That any
aggrieved party may appeal within five (5) days from
the Board's decision to the Secretary for final
resolution otherwise the same is considered final and
executory; x x x
In this case, in accordance with Section 22,
paragraph 22.5 of the Implementing Rules and
Regulations of R.A. No. 7076, the AMTC filed on July
22, 2005 with the PMRB of Bulacan a formal protest
against the Applications for Quarry Permits of
Eduardo
Mercado,
Benedicto
Cruz,
Liberato
Sembrano (replaced by Lucila Valdez) and Gerardo
Cruz on the ground that the subject area was already
covered by its Application for Exploration Permit. 48
However, on August 8, 2005, the PMRB issued
Resolution Nos. 05-8, 05-9, 05-10 and 05-11,

resolving to submit to the Provincial Governor of

Bulacan the Applications for Small-Scale Mining
Permits of Eduardo Mercado, Benedicto Cruz, Lucila
Valdez and Gerardo Cruz for the granting/issuance of
the said permits.49 On August 10, 2005, the Provincial
Governor of Bulacan issued the Small-Scale Mining
Permits to Eduardo Mercado, Benedicto Cruz, Lucila
Valdez and Gerardo Cruz based on the legal opinion
of the Provincial Legal Officer and the Resolutions of
the PMRB of Bulacan.
Hence, AMTC filed an appeal with respondent DENR
Secretary, appealing from Letter-Resolution No. 051317 and Resolution Nos. 05-08, 05-09, 05-10 and
05-11, all dated August 8, 2005, of the PMRB of
Bulacan, which resolutions gave due course and
granted, on August 10, 2005, Small-Scale Mining
Permits to Eduardo D. Mercado, Benedicto S. Cruz,
Lucila Valdez and Gerardo Cruz involving parcels of
mineral land situated at Camachin, Doa Remedios
Trinidad, Bulacan.
The PMRB of Bulacan filed its Answer, stating that it
is an administrative body, created under R.A. No.
7076, which cannot be equated with the court
wherein a full-blown hearing could be conducted, but
it is enough that the parties were given the
opportunity to present evidence. It asserted that the
questioned resolutions it issued were in accordance
with the mining laws and that the Small-Scale Mining
Permits granted were registered ahead of AMTC's
Application for Exploration Permit. Further, the Board
stated that the Governor of Bulacan had the power to
approve the Small-Scale Mining Permits under R.A.
No. 7160.
The DENR Secretary found the appeal meritorious,
and resolved these pivotal issues: (1) when is the
subject mining area open for mining location by other
applicants; and (2) who among the applicants have
valid applications.1wphi1 The pertinent portion of
the decision of the DENR Secretary reads:
We agree with the ruling of the MGB Director that the
area is open only to mining location on August 11,
2004, fifteen (15) days after the receipt by Golden
Falcon on July 27, 2004 of a copy of the subject Order
of July 16, 2004.1wphi1 The filing by Golden Falcon
of the letter-appeal suspended the finality of the
Order of Denial issued on April 29, 1998 by the
Regional Director until the Resolution thereof on July
16, 2004.
Although the subject AQPs/SSMPs were processed in
accordance with the procedures of the PMRB,

however, the AQPs were filed on February 10, 2004

when the area is still closed to mining location.
Consequently, the SSMPs granted by the PMRB and
the Governor are null and void making thereby AEP
No. III-02-04 of the AMTC valid, it having been filed
when the area is already open to other mining
applicants.
Records also show that the AQPs were converted into
SSMPs. These are two (2) different applications. The
questioned SSMPs were issued in violation of Section
4 of RA 7076 and beyond the authority of the
Provincial Governor pursuant to Section 43 of RA
7942 because the area was never proclaimed as
"People's Small-Scale Mining Program." Moreover,
iron ore mineral is not considered among the quarry
resources.
xxxx
WHEREFORE, the Application for Exploration Permit,
AEP-III-02-04 of Atlantic Mines and Trading Corp. is
declared valid and may now be given due course.
The Small-Scale Mining Permits, SSMP-B-002-05 of
Gerardo Cruz, SSMP-B-003-05 of Eduardo D. Mercado,
SSMP-B-004-05 of Benedicto S. Cruz and SSMP-B-00505 of Lucila S. Valdez are declared NULL AND VOID.
Consequently, the said permits are hereby
CANCELLED.50
The Court finds that the decision of the DENR
Secretary was rendered in accordance with the
power of review granted to the DENR Secretary in
the resolution of disputes, which is provided for in
Section 24 of R.A. No. 707651 and Section 22 of its
Implementing Rules and Regulations.52 It is noted
that although AMTC filed a protest with the PMRB
regarding its superior and prior Application for
Exploration Permit over the Applications for Quarry
Permit, which were converted to Small-Scale Mining
Permits, the PMRB did not resolve the same, but
issued Resolution Nos. 05-08 to 05-11 on August 8,
2005, resolving to submit to the Provincial Governor
of Bulacan the Applications for Small-Scale Mining
Permits of Eduardo Mercado, Benedicto Cruz, Lucila
Valdez and Gerardo Cruz for the granting of the said
permits. After the Provincial Governor of Bulacan
issued the Small-Scale Mining Permits on August 10,
2005, AMTC appealed the Resolutions of the PMRB
giving due course to the granting of the Small-Scale
Mining Permits by the Provincial Governor.
Hence, the decision of the DENR Secretary, declaring
that the Application for Exploration Permit of AMTC
was valid and may be given due course, and

canceling the Small-Scale Mining Permits issued by

the Provincial Governor, emanated from the power of
review granted to the DENR Secretary under R.A. No.
7076 and its Implementing Rules and Regulations.
The DENR Secretary's power to review and,
therefore, decide, in this case, the issue on the
validity of the issuance of the Small-Scale Mining
Permits by the Provincial Governor as recommended
by the PMRB, is a quasi-judicial function, which
involves the determination of what the law is, and
what the legal rights of the contending parties are,
with respect to the matter in controversy and, on the
basis thereof and the facts obtaining, the
adjudication of their respective rights.53 The DENR
Secretary exercises quasi-judicial function under R.A.
No. 7076 and its Implementing Rules and Regulations
to the extent necessary in settling disputes, conflicts
or litigations over conflicting claims. This quasijudicial function of the DENR Secretary can neither
be equated with "substitution of judgment" of the
Provincial Governor in issuing Small-Scale Mining
Permits nor "control" over the said act of the
Provincial Governor as it is a determination of the
rights of AMTC over conflicting claims based on the
law.
In determining whether Section 17 (b)(3)(iii) of the
Local Government Code of 1991 and Section 24 of
R.A. No. 7076 are unconstitutional, the Court has
been guided by Beltran v. The Secretary of Health, 54
which held:
The fundamental criterion is that all reasonable
doubts should be resolved in favor of the
constitutionality of a statute. Every law has in its
favor the presumption of constitutionality. For a law
to be nullified, it must be shown that there is a clear
and unequivocal breach of the Constitution. The
ground for nullity must be clear and beyond
reasonable doubt. Those who petition this Court to
declare a law, or parts thereof, unconstitutional must
clearly establish the basis therefor. Otherwise, the
petition must fail. 55
In this case, the Court finds that the grounds raised
by petitioner to challenge the constitutionality of
Section 17 (b )(3)(iii) of the Local Government Code
of 1991 and Section 24 'of R.A. No.7076 failed to
overcome the constitutionality of the said provisions
of law.
WHEREFORE, the petition is DISMISSED for lack of
merit.

CONCURRING OPINION
LEONEN, J.:
I concur in the result.
This is a case of overlapping claims, which involve
the application of the Mining Act, and the Small-Scale
Mining Act. It is specific to the facts of this case,
which are:
The Mines and Geosciences Bureau, Regional Office
No. III (MGB R-Ill) denied Golden Falcon Mineral
Exploration Corporation's (Golden Falcon) application
for Financial and Technical Assistance Agreement
(FTAA) on April29, 1998 for failure to secure the
required clearances.1
Golden Falcon appealed the denial-with the Mines
and Geosciences Bureau-Central Office (Central
Office).2 The appeal was denied only on July 16, 2004
or six years after Golden Falconappealed.3
On February 10, 2004, pending Golden Falcon's
appeal to the Central Office, certain persons filed
with the Provincial Environment and Natural
Resources Office "(PENRO) of Bulacan their
applications for quarry permit covering the same
area subject of Golden Falcon's FTAA application.4
On September 13, 2004, after the Central Office
denied Golden Falcons appeal, Atlantic Mines and
Trading Corporation (AMTC) filed an application for
exploration permit covering the same subject area
with the PENRO of Bulacan.5
Confusion of rights resulted from the overlapping
applications of AMTC and the persons applying for
quarry permits. The main question was when did the
subject area become open for small scale mining
applications. At that time, the provincial government
did not question whether it had concurrent or more
superior
jurisdiction
vis-a-vis
the
national
government.

It was upon query by MGB R-III Director Arnulfo

Cabantog that DENR-MGB Director Horacio Ramos
stated that the denial of Golden Falcons application
became final fifteen days after the denial of its
appeal to the Central Office or on August 11, 2004. 6
Hence, the area of Golden Falcons application
became open to permit applications only on that
date.
After the MGB Director issued the statement,
however, the Provincial Legal Officer of Bulacan, Atty.
Eugenio F. Ressureccion issued a legal opinion on the
issue, stating that the subject area became open for
new applications on the date of the first denial on
April 29, 1998.7
On the basis of the Provincial Legal Officers opinion,
Director Cabantog of MGB R-III endorsed the
applications for quarry permit, now converted to
applications for small-scale mining permit, to the
Governor of Bulacan.8 Later on, the Governor issued
the small-scale mining permits.9
Upon appeal by the AMTC, the DENR Secretary
declared as null the small-scale mining permits
issued by the Governor on the ground that they have
been issued in violation of Section 4 of R.A. No. 7076
and beyond the authority of the Governor.10
According to the DENR Secretary, the area was never
proclaimed to be under the small-scale mining
program.11 Iron ores also cannot be considered as a
quarry resource.12
The question in this case is whether or not the
provincial governor had the power to issue the
subject permits.
The fact that the application for small-scale mining
permit was initially filed as applications for quarry
permits is not contested.
Quarry permits, however, may only be issued "on
privately-owned lands and/or public lands for building
and construction materials such as marble, basalt,
andesite, conglomerate, tuff, adobe, granite, gabbro,
serpentine, inset filling materials, clay for ceramic
tiles and building bricks, pumice, perlite and other
similar materials..."13 It may not be issued on
"...resources that contain metals or metallic
constituents and/or other valuable materials in
economic quantities."14
Not only do iron ores fall outside the classification of
any of the enumerated materials in Section 43 of the

Mining Act, but iron is also a metal. It may not be

classified as a quarry resource, hence, the provincial
governor had no authority to issue the quarry
permits in the first place. Probably realizing this
error, the applications for quarry permit were
converted to applications for small-scale mining
permit.
Even so, the issuance of the small-scale mining
permit was still beyond the authority of the provincial
governor. Small-scale mining areas must first be
declared and set aside as such before they can be
made subject of small-scale mining rights. 15 The
applications for small-scale mining permit, in this
case, involved covered areas, which were never
declared as peoples small-scale mining areas. This is
enough reason to deny an application for small-scale
mining permit. Permits issued in disregard of this fact
are void for having been issued beyond the authority
of the issuing officer.
Therefore, there was no issue of local autonomy. The
provincial governor did not have the competence to
issue the questioned permits.
Neither does the League of Provinces have any
standing to raise the present constitutional issue.
Locus standi is defined as "a right of appearance in a
court of justice on a given question." 16 The
fundamental question is "whether a party alleges
such personal stake in the outcome of the
controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon
which the court depends for illumination of difficult
constitutional questions."17
In case of a citizens suit, the "interest of the person
assailing the constitutionality of a statute must be
direct and personal. He must be able to show, not
only that the law is invalid, but also that he has
sustained or is in immediate danger of sustaining
some direct injury as a result of its enforcement, and
not merely that he suffers thereby in some indefinite
way."18 In the case of Telecommunications and
Broadcast Attorneys of the Philippines, Inc. and GMA
Network, Inc. v. COMELEC, we said that a citizen who
raises a constitutional question may only do so if s/he
could show: (1) that s/he had personally suffered
some actual or threatened injury; (2) that the actual
or threatened injury was a result of an allegedly
illegal conduct of the government; (3) that the injury
is traceable to the challenged action; and (4) that the
injury is likely to be redressed by a favorable action.19

The Petitioner League of Provinces status as an

organization of all provinces duty-bound to promote
local autonomy20 and adopt measures for the
promotion of the welfare of provinces 21 does not
clothe
it
with
standing
to
question
the
constitutionality of the Section 17(b)(iii) of the Local
Government Code and Section 24 of Rep. Act No.
7076 or the Small-Scale Mining Act.
As an organization that represents all provinces, it
did not suffer an actual injury or an injury in fact,
resulting from the implementation of the subject
provisions. It cannot be said either that the provinces
that Petitioner represents suffered the same injury
when the Central Office nullified the permits issued
by the Governor of Bulacan.
Provinces do not have a common or general interest
on matters related to mining that the League of
Provinces can represent. Each province has a
particular interest to protect and claims to pursue
that are separate and distinct from the others.
Therefore, each is unique as to its reasons for raising
issues to the Court. The League of Provinces cannot
represent all provinces on mining-related issues. The
perceived wrong suffered by the Province of Bulacan
when the Central Office allegedly exercised control
does not necessarily constitute a wrong suffered by
the other provinces.
Furthermore, the Constitution provides for two types
of local governance other than the national
government: 1) The territorial and political
subdivisions
composed
of
provinces,
cities,
municipalities and barangays; and 2) autonomous
regions.22 The division of Article X of the Constitution
distinguishes between their creation and relationship
with the national government.
The creation of autonomous regions takes into
consideration the "historical and cultural heritage,
economic and social structures, and other relevant
characteristics"23 which its constituent geographical
areas share in common. These factors are not
considered in the creation of territorial and political
subdivisions.
Autonomous regions are not only created by an act
of the Congress. The Constitution also provides for a
plebiscite requirement before the organic act that
creates an autonomous region becomes effective. 24
This constitutes the creation of autonomous regions
a direct act of the people. It means that the basic
structure of an autonomous region, consisting of the
executive department and legislative assembly, its

special courts, and the provisions on its powers may

not be easily amended or superseded by a simple act
of the Congress.
Moreover, autonomous regions have powers, e.g.
over their administrative organization, sources of
revenues, ancestral domain, natural resources,
personal, family and property relations, regional
planning development, economic, social and tourism
development, educational policies, cultural heritage
and other matters.25
On the other hand, the creation of territorial and
political subdivisions is subject to the local
government code enacted by the Congress without a
plebiscite requirement.26 While this does not disallow
the inclusion of provisions requiring plebiscites in the
creation of provinces, cities, and municipalities, the
local government code may be amended or
superseded by another legislative act that removes
such requirement. Their government structure,
powers, and responsibilities, therefore, are always
subject to amendment by legislative acts.
The territorial and political subdivisions and
autonomous regions are granted autonomy under the
Constitution.27
The
constitutional
distinctions
between them imply a clear distinction between the
kinds of autonomy that they exercise.
The oft-cited case of Limbona v. Mangelin28 penned
by Justice Sarmiento distinguishes between two
types of autonomy:
autonomy
is
either
decentralization
of
administration or decentralization of power. There is
decentralization of administration when the central
government delegates administrative powers to
political subdivisions in order to broaden the base of
government power and in the process to make local
governments more responsive and accountable,
and ensure their fullest development as self-reliant
communities and make them more effective partners
in the pursuit of national development and social
progress
Decentralization of power, on the other hand,
involves an abdication of political power in the favor

of local governments units declared to be

autonomous. In that case, the autonomous
government is free to chart its own destiny and
shape its future with minimum intervention from
central authorities. According to a constitutional
author, decentralization of power amounts to "selfimmolation," since in that event, the autonomous
government becomes accountable not to the central
authorities but to its constituency.
xxx
An autonomous government that enjoys autonomy of
the latter category [CONST. (1987), art. X sec. 15.] is
subject alone to the decree of the organic act
creating it and accepted principles on the effects and
limits of "autonomy." On the other hand, an
autonomous government of the former class is, as we
noted, under the supervision of the national
government acting through the President (and the
Department of Local Government)
I agree that autonomy, as phrased in Section 2 of
Article X of the Constitution, which pertains to
provinces, cities, municipalities and barangays,
refers only to administrative autonomy.
In granting autonomy, the national government does
not totally relinquish its powers.29 The grant of
autonomy does not make territorial and political
subdivisions sovereign within the state or an
"imperium in imperio".30 The aggrupation of local
government units and the creation of regional
development councils in Sections 13 and 14 of Article
X of the Constitution do not contemplate grant of
discretion to create larger units with a recognized
distinct political power that is parallel to the state. It
merely facilitates coordination and exchange among
them, still, for the purpose of administration.
Territorial and political subdivisions are only allowed
to take care of their local affairs so that governance
will be more responsive and effective to their unique
needs.31 The Congress still retains control over the
extent of powers or autonomy granted to them.
Therefore, when the national government invalidates
an act of a territorial or political subdivision in the

exercise of a power that is constitutionally and

statutorily lodged to it, the territorial or political
subdivision cannot complain that its autonomy is
being violated. This is especially so when the extent
of its autonomy under the Constitution or law does
not include power or control over the matter, to the
exclusion of the national government.
However, I do not agree that Limbona v. Mangelin
correctly categorized the kind of autonomy that
autonomous regions enjoy.
In that case, the court tried to determine the extent
of self-government of autonomous governments
organized under Presidential Decree No. 1618 on July
25, 1979. This is prior to the autonomous regions
contemplated in the 1987 Constitution.
Autonomous regions are granted more powers and
less intervention from the national government than
territorial and political subdivisions. They are, thus, in
a more asymmetrical relationship with the national
government as compared to other local governments
or any regional formation.32 The Constitution grants
them legislative powers over some matters, e.g.
natural resources, personal, family and property
relations, economic and tourism development,
educational policies, that are usually under the
control of the national government. However, they
are still s"ubject to the supervision of the President.
Their establishment is still subject to the framework
of the Constitution, particularly, sections 15 to 21 of
Article X, national sovereignty and territorial integrity
of the Republic of the Philippines.
The exact contours of the relationship of the
autonomous
government
and
the
national
government are defined by legislation such as
Republic Act No. 9054 or the Organic Act for the
Autonomous Region in Muslim Mindanao. This is not
at issue here and our pronouncements should not
cover the provinces that may be within that
autonomous region.
Considering the foregoing, I vote to DISMISS the
petition.