LIBERTY OF ABODE AND TRAVEL

G.R. No. 200903

Kalipunan ng Damayang Mahihirap, Inc. v. Robredo
Brion, J.

Summarized by Sam Andales

This is a petition for prohibition and mandamus to enjoin the public respondents
from evicting the petitioners from their dwellings in San Juan, Navotas and Quezon City
without any court order. It primarily seeks to declare as unconstitutional Sec. 28 (a) and
(b) of RA 7279 (Urban Development Housing Act), which authorises evictions and
demolitions under certain circumstances without any court order. While the court
dismissed this petition for its serious procedural defects, it reiterated its pronouncement in
Magkalas v. NHA, where the Court stated that demolitions/evictions may be validly
carried out even without judicial order in certain instances (see Ruling), including
evictions/demolitions made under Sec. 28 of RA 7279. Furthermore, the Court notes that
under Sec. 28, par. 2 of the same law, a prescribed procedure (see Ruling) is laid out in
executing the eviction/demolition orders to ensure that these are conducted in a
just and humane manner, as required in Art. 3, Sec. 10 of the 1987 Constitution.

IMPORTANT PEOPLE
Petitioners - Members of Kalipunan ng Damaging Mahihirap, Inc. and Corazon de
Jesus Homeowners Association; Fernando Sevilla, Estrelieta Bagasbas, Jocy
Lopez, Elvira Vidol, Delia Frayres
Respondents - DILG Secretary Jessie Robredo, San Juan Mayor Guia Gomez, QC
Mayor Herbert Bautista, Navotas Mayor John Rey Tiangco and General Manager
(GM) of National Housing Authority (NHA)

FACTS
1. Petitioners occupied certain parcels of land in San Juan, Navotas, and QC,
which were owned by their respective city LGUs. The LGUs sent the petitioners
notices of evictions and demolition pursuant to Sec 28 (a) & (b) of RA 7279 to
give way to the implementation and construction of infrastructure projects (city
hall, roads, public school) in the areas.
a. Sec 28 (a) & (b) of RA 7279 authorise evictions and demolitions without
any court order when: (1) persons or entities occupy danger areas such
as esteros, railroad tracks, garbage dumps, riverbanks, shorelines,
waterways, and other public places and (2) persons or entities occupy
areas where govt infrastructure projects with available funding are about
to be implemented.
2. On Mar 23, 2012, petitioners directly filed petition for prohibition and mandamus
to compel the public respondents to first secure an eviction and/or demolition

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 order from the court prior to implementing RA 7279. They justified their direct
recourse to the SC by averring that:
a. they had no plain, speedy, adequate remedy in the ordinary course of
law;
b. the respondents committed GAD in implementing RA 7279;
c. they stand to be directly injured by the threats of eviction/demolition and
in the alternative, the transcendental importance of the issues clothed
them with standing.
3. They also argue that Sec 28 (a) and (b) of RA 7279 are violative of:
a. Art. 3, Sec. 1 (Due Process) because they warrant evictions and
demolitions without any court order;
b. Art. 3, Sec. 6 which prohibits impairment of liberty of abode without court
order;
c. the right to adequate housing as recognised in the Universal Declaration
of Human Rights and Sec 2 (a) of RA 7279;
d. Art. 13, Sec 10 because the previously conducted evictions/demolitions
were conducted in a violent manner.
4. Respondents positions are as follows:
a. Navotas Mayor
Petition should be dismissed for its serious procedural defects: (1)
ignored hierarchy of courts when they directly filed Rule 65 petition
before the SC; (2) incorrectly availed of petition for prohibition and
mandamus; (3) failed to state particular GAD committed; (4) no
justiciable controversy as petitioners in Navotas were already
evicted; and (5) filed out of time
Art. 13, Sec. 10 allows evictions/demolitions without court order
provided that they are done in accordance with the law and in a just
and humane manner. RA 7279 is precisely the law referred to and
was faithfully implemented by the LGU by giving a 30-day notice and
holding consultations.
Petitioners right to choose their abode is misplaced since they had
no vested rights over properties they do not own.
b. San Juan Mayor
Petitioners improperly availed of prohibition and mandamus.
Petition is rendered moot and academic by successful eviction of
some of the petitioners in San Juan.
Sec 28 (a) & (b) already lay down the procedure for evicting informal
settlers in a just and humane manner.
c. QC Mayor
Petition is premature and violates hierarchy of courts.
LGUs faithful implementation of RA 7279 does not amount to GAD.
d. DILG Secretary and NHA GM
Adopt position of Navotas Mayor that petition is procedurally infirm.

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 Liberty of abode is not illimitable and does not include right to encroach
upon other persons properties.
Sec. 28 of RA 7279 provides sufficient safeguards in ensuring that
evictions and demolitions are carried out in a just and humane manner.

ISSUE with HOLDING

1. W/N petitioners violated the principle of hierarchy of courts - YES
a. SC is the court of last resort and not of first instance. The hierarchy of
courts should serve as a general determinant of appropriate forum for
Rule 65 petitions. The concurrence of jurisdiction among SC, CA, and
RTC does not give petitioners unrestricted freedom of choice of forum.
The trial court is better equipped in resolving cases of this nature since
this Court is not a trier of facts and does not normally undertake an
examination of contending parties evidence.
2. W/N petitioners correctly availed themselves of a petition for prohibition
and mandamus - NO
a. Writ of prohibition only lies against a tribunal, corporation, board, officer,
or persons exercise of judicial, quasi-judicial, or ministerial functions.
Meanwhile, writ of mandamus will only issue to compel an officer to
perform a ministerial duty. In this case, the implementation of Sec 28 (a)
and (b) of RA 7279, which the petitioners seek to prohibit, is merely
discretionary - as evidenced by the use of the permissive word may in
the provision, and is not ministerial, judicial, or quasi-judicial.
3. W/N Sec. 28 (a) & (b) of RA 7279 are violative of Art. 3, Sec. 1 and 6 of the
1987 Const. - NO
a. Petition must fail for failure to show essential requisites of judicial review.
Except for QCs threat of eviction, this case no longer presents a
justiciable controversy with respect to Navotas and San Juan whose
mayors alleged that they have successfully evicted concerned
petitioners. Furthermore, the constitutionality is not the lis mota of the
case. They also failed to substantiate allegations of GAD.

b. There is no need to examine constitutionality of Sec 28 (a) and (b) of RA

7279 in light of Art. 3, Sec. 1 & 6 of the 1987 Constitution.
In an earlier case Magkalas v. NHA, the Court has already ruled on
the validity of evictions/demolitions without any court order. In that
case, the court affirmed the validity of Sec. 2 of PD 1472 and held that
Caridad Magkalas illegal possession of the property should not hinder
NHAs development of Bagong Barrio Urban Bliss Project.
i. Furthermore, the Court stated that demolitions/evictions may
be validly carried out even without judicial order in the
following instances:

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 1. when the property involved is an expropriated
property xxx pursuant to Sec. 1 of PD 1315;
2. when there are squatters on government resettlement
projects and illegal occupants in any homelot,
apartment or dwelling unit owned or administered by
the NHA pursuant to Sec. 2 of PD 1472;
3. when persons or entities occupy danger areas such as
esteros, railroad tracks, garbage dumps, riverbanks,
shorelines, waterways, and other public places such
as sidewalks, roads, parks, and playgrounds, pursuant
to Sec. 28 (a) of RA 7279;
4. when government infrastructure projects with
available funding are about to be implemented
pursuant to Sec. 28 (b) of RA 7279.
c. The court notes that Art. 3, Sec 10 of the 1987 Constitution provides that
urban or rural poor dwellers shall not be evicted nor their dwelling
demolished, except in accordance with the law and in a just and humane
manner. Sec. 28, par. 2 of RA 7279 commands compliance with the
following prescribed procedure in executing eviction and/or
demolition orders, as summarised below:
i. notice of at least 30 days prior to date of eviction/demolition;
ii. adequate consultations on the matter of settlement;
iii. presence of local govt officials or representatives during
eviction/demolition;
iv. proper identification of all persons taking part in the
demolition;
v. execution of eviction/demolition only during regular office
hours from Mon-Fri and during good weather, unless affected
families consented otherwise;
vi. no use of heavy equipment for demolition except for
structures that are permanent and of concrete materials;
vii.proper uniforms for members of PNP who shall occupy first
line of law enforcement & observe proper disturbance
control procedures; and
viii. adequate relocation, whether temporary or permanent.

DISPOSITIVE PORTION
WHEREFORE, premises considered, we hereby DISMISS the petition for its
serious procedural defects. No costs. SO ORDERED.

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