E.
FUNDAMENTAL POWERS OF THE STATE MC 15, and all other orders, circulars and issuances that
G.R. No. 152642 November 13, 2012
Sto. Tomas v. Salac, 685 SCRA 245 (2012)
ABAD, J.:
These consolidated cases pertain to the constitutionality
of certain provisions of Republic Act 8042, otherwise
known as the Migrant Workers and Overseas Filipinos
Act of 1995.
The Facts and the Case
On June 7, 1995 Congress enacted Republic Act (R.A.)
8042 or the Migrant Workers and Overseas Filipinos Act
of 1995 that, for among other purposes, sets the
Government’s policies on overseas employment and
establishes a higher standard of protection and promotion
of the welfare of migrant workers, their families, and
overseas Filipinos in distress.
G.R. 152642 and G.R. 152710
(Constitutionality of Sections 29 and 30, R.A. 8042)
Sections 29 and 30 of the Act commanded the
Department of Labor and Employment (DOLE) to begin
deregulating within one year of its passage the business
of handling the recruitment and migration of overseas
Filipino workers and phase out within five years the
regulatory functions of the Philippine Overseas
Employment Administration (POEA).
On January 8, 2002 respondents Rey Salac, Willie D.
Espiritu, Mario Montenegro, Dodgie Belonio, Lolit Salinel,
and Buddy Bonnevie (Salac, et al.) filed a petition for
certiorari, prohibition and mandamus with application for
temporary restraining order (TRO) and preliminary
injunction against petitioners, the DOLE Secretary, the
POEA Administrator, and the Technical Education and
Skills Development Authority (TESDA) Secretary-General
before the Regional Trial Court (RTC) of Quezon City,
Branch 96.
Salac, et al. sought to: 1) nullify DOLE Department Order
10 (DOLE DO 10) and POEA Memorandum Circular 15
(POEA MC 15); 2) prohibit the DOLE, POEA, and TESDA
from implementing the same and from further issuing
rules and regulations that would regulate the recruitment
and placement of overseas Filipino workers (OFWs); and
3) also enjoin them to comply with the policy of
deregulation mandated under Sections 29 and 30 of
Republic Act 8042.
On March 20, 2002 the Quezon City RTC granted Salac,
et al.’s petition and ordered the government agencies
mentioned to deregulate the recruitment and placement
of OFWs. The RTC also annulled DOLE DO 10, POEA
are inconsistent with the policy of deregulation under R.A.
8042.
Prompted by the RTC’s above actions, the government
officials concerned filed the present petition in G.R.
152642 seeking to annul the RTC’s decision and have the
same enjoined pending action on the petition.
On April 17, 2002 the Philippine Association of Service
Exporters, Inc. intervened in the case before the Court,
claiming that the RTC March 20, 2002 Decision gravely
affected them since it paralyzed the deployment abroad
of OFWs and performing artists. The Confederated
Association of Licensed Entertainment Agencies,
Incorporated (CALEA) intervened for the same purpose.
On May 23, 2002 the Court issued a TRO in the case,
enjoining the Quezon City RTC, Branch 96, from
enforcing its decision.
In a parallel case, on February 12, 2002 respondents
Asian Recruitment Council Philippine Chapter, Inc. and
others (Arcophil, et al.) filed a petition for certiorari and
prohibition with application for TRO and preliminary
injunction against the DOLE Secretary, the POEA
Administrator, and the TESDA Director-General, before
the RTC of Quezon City, Branch 220, to enjoin the latter
from implementing the 2002 Rules and Regulations
Governing the Recruitment and Employment of Overseas
Workers and to cease and desist from issuing other
orders, circulars, and policies that tend to regulate the
recruitment and placement of OFWs in violation of the
policy of deregulation provided in Sections 29 and 30 of
R.A. 8042.
On March 12, 2002 the Quezon City RTC rendered an
Order, granting the petition and enjoining the government
agencies involved from exercising regulatory functions
over the recruitment and placement of OFWs. This
prompted the DOLE Secretary, the POEA Administrator,
and the TESDA Director-General to file the present action
in G.R. 152710. As in G.R. 152642, the Court issued on
May 23, 2002 a TRO enjoining the Quezon City RTC,
Branch 220 from enforcing its decision.
On December 4, 2008, however, the Republic
informed7 the Court that on April 10, 2007 former
President Gloria Macapagal-Arroyo signed into law R.A.
94228 which expressly repealed Sections 29 and 30 of
R.A. 8042 and adopted the policy of close government
regulation of the recruitment and deployment of OFWs.
R.A. 9422 pertinently provides:
xxxx
SEC. 1. Section 23, paragraph (b.1) of Republic Act No.
8042, otherwise known as the "Migrant Workers and
Overseas Filipinos Act of 1995" is hereby amended to
read as follows:
(b.1) Philippine Overseas Employment Administration –
The Administration shall regulate private sector
participation in the recruitment and overseas placement
of workers by setting up a licensing and registration
system. It shall also formulate and implement, in
coordination with appropriate entities concerned, when
necessary, a system for promoting and monitoring the
overseas employment of Filipino workers taking into
consideration their welfare and the domestic manpower
requirements.
In addition to its powers and functions, the administration
shall inform migrant workers not only of their rights as
workers but also of their rights as human beings, instruct
and guide the workers how to assert their rights and
provide the available mechanism to redress violation of
their rights.
In the recruitment and placement of workers to service
the requirements for trained and competent Filipino
workers of foreign governments and their
instrumentalities, and such other employers as public
interests may require, the administration shall deploy only
to countries where the Philippines has concluded bilateral
labor agreements or arrangements: Provided, That such
countries shall guarantee to protect the rights of Filipino
migrant workers; and: Provided, further, That such
countries shall observe and/or comply with the
international laws and standards for migrant workers.
SEC. 2. Section 29 of the same law is hereby repealed.
SEC. 3. Section 30 of the same law is also hereby
repealed.
xxxx
On August 20, 2009 respondents Salac, et al. told the
Court in G.R. 152642 that they agree with the Republic’s
view that the repeal of Sections 29 and 30 of R.A. 8042
renders the issues they raised by their action moot and
academic. The Court has no reason to disagree.
Consequently, the two cases, G.R. 152642 and 152710,
should be dismissed for being moot and academic.
G.R. 167590
(Constitutionality of Sections 6, 7, and 9 of R.A. 8042)
On August 21, 1995 respondent Philippine Association of
Service Exporters, Inc. (PASEI) filed a petition for
declaratory relief and prohibition with prayer for issuance
of TRO and writ of preliminary injunction before the RTC
of Manila, seeking to annul Sections 6, 7, and 9 of R.A.
8042 for being unconstitutional. (PASEI also sought to
annul a portion of Section 10 but the Court will take up
this point later together with a related case.)
Section 6 defines the crime of "illegal recruitment" and
enumerates the acts constituting the same. Section 7
provides the penalties for prohibited acts. Thus:
SEC. 6. Definition. – For purposes of this Act, illegal
recruitment shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, procuring
workers and includes referring, contract services,
promising or advertising for employment abroad, whether
for profit or not, when undertaken by a non-license or
non-holder of authority contemplated under Article 13(f) of
Presidential Decree No. 442, as amended, otherwise
known as the Labor Code of the Philippines: Provided,
That such non-license or non-holder, who, in any manner,
offers or promises for a fee employment abroad to two or
more persons shall be deemed so engaged. It shall
likewise include the following acts, whether committed by
any person, whether a non-licensee, non-holder, licensee
or holder of authority:
xxxx
SEC. 7. Penalties. –
(a) Any person found guilty of illegal recruitment shall
suffer the penalty of imprisonment of not less than six
(6) years and one (1) day but not more than twelve
(12) years and a fine not less than two hundred
thousand pesos (₱200,000.00) nor more than five
hundred thousand pesos (₱500,000.00).
(b) The penalty of life imprisonment and a fine of not
less than five hundred thousand pesos (₱500,000.00)
nor more than one million pesos (₱1,000,000.00)
shall be imposed if illegal recruitment constitutes
economic sabotage as defined herein.
Provided, however, That the maximum penalty shall be
imposed if the person illegally recruited is less than
eighteen (18) years of age or committed by a non-
licensee or non-holder of authority.
Finally, Section 9 of R.A. 8042 allowed the filing of
criminal actions arising from "illegal recruitment" before
the RTC of the province or city where the offense was
committed or where the offended party actually resides at
the time of the commission of the offense.
The RTC of Manila declared Section 6 unconstitutional
after hearing on the ground that its definition of "illegal
recruitment" is vague as it fails to distinguish between
licensed and non-licensed recruiters and for that reason
gives undue advantage to the non-licensed recruiters in
violation of the right to equal protection of those that
operate with government licenses or authorities.
But "illegal recruitment" as defined in Section 6 is clear
and unambiguous and, contrary to the RTC’s finding,
actually makes a distinction between licensed and non-
licensed recruiters. By its terms, persons who engage in
"canvassing, enlisting, contracting, transporting, utilizing,
hiring, or procuring workers" without the appropriate
government license or authority are guilty of illegal
recruitment whether or not they commit the wrongful acts
enumerated in that section. On the other hand, recruiters
who engage in the canvassing, enlisting, etc. of OFWs,
although with the appropriate government license or
authority, are guilty of illegal recruitment only if they
commit any of the wrongful acts enumerated in Section 6.
The Manila RTC also declared Section 7 unconstitutional
on the ground that its sweeping application of the
penalties failed to make any distinction as to the
seriousness of the act committed for the application of the
penalty imposed on such violation. As an example, said
the trial court, the mere failure to render a report under
Section 6(h) or obstructing the inspection by the Labor
Department under Section 6(g) are penalized by
imprisonment for six years and one day and a minimum
fine of ₱200,000.00 but which could unreasonably go
even as high as life imprisonment if committed by at least
three persons.
Apparently, the Manila RTC did not agree that the law
can impose such grave penalties upon what it believed
were specific acts that were not as condemnable as the
others in the lists. But, in fixing uniform penalties for each
of the enumerated acts under Section 6, Congress was
within its prerogative to determine what individual acts are
equally reprehensible, consistent with the State policy of
according full protection to labor, and deserving of the
same penalties. It is not within the power of the Court to
question the wisdom of this kind of choice. Notably, this
legislative policy has been further stressed in July 2010
with the enactment of R.A. 10022 which increased even
more the duration of the penalties of imprisonment and
the amounts of fine for the commission of the acts listed
under Section 7.
Obviously, in fixing such tough penalties, the law
considered the unsettling fact that OFWs must work
outside the country’s borders and beyond its immediate
protection. The law must, therefore, make an effort to
somehow protect them from conscienceless individuals
within its jurisdiction who, fueled by greed, are willing to
ship them out without clear assurance that their
contracted principals would treat such OFWs fairly and
humanely.
As the Court held in People v. Ventura, the State under its
police power "may prescribe such regulations as in its
judgment will secure or tend to secure the general welfare
of the people, to protect them against the consequence of
ignorance and incapacity as well as of deception and
fraud." Police power is "that inherent and plenary power
of the State which enables it to prohibit all things hurtful to
the comfort, safety, and welfare of society."
The Manila RTC also invalidated Section 9 of R.A. 8042
on the ground that allowing the offended parties to file the
criminal case in their place of residence would negate the
general rule on venue of criminal cases which is the place
where the crime or any of its essential elements were
committed. Venue, said the RTC, is jurisdictional in penal
laws and, allowing the filing of criminal actions at the
place of residence of the offended parties violates their
right to due process. Section 9 provides:
SEC. 9. Venue. – A criminal action arising from illegal
recruitment as defined herein shall be filed with the
Regional Trial Court of the province or city where the
offense was committed or where the offended party
actually resides at the time of the commission of the
offense: Provided, That the court where the criminal
action is first filed shall acquire jurisdiction to the
exclusion of other courts: Provided, however, That the
aforestated provisions shall also apply to those criminal
actions that have already been filed in court at the time of
the effectivity of this Act.
But there is nothing arbitrary or unconstitutional in
Congress fixing an alternative venue for violations of
Section 6 of R.A. 8042 that differs from the venue
established by the Rules on Criminal Procedure. Indeed,
Section 15(a), Rule 110 of the latter Rules allows
exceptions provided by laws. Thus:
SEC. 15. Place where action is to be instituted.— (a)
Subject to existing laws, the criminal action shall be
instituted and tried in the court of the municipality or
territory where the offense was committed or where any
of its essential ingredients occurred. (Emphasis supplied)
xxxx
Section 9 of R.A. 8042, as an exception to the rule on
venue of criminal actions is, consistent with that law’s
declared policy of providing a criminal justice system that
protects and serves the best interests of the victims of
illegal recruitment.
G.R. 167590, G.R. 182978-79, and G.R. 184298-99
(Constitutionality of Section 10, last sentence of 2nd
paragraph)
G.R. 182978-79 and G.R. 184298-99 are consolidated
cases. Respondent spouses Simplicio and Mila
Cuaresma (the Cuaresmas) filed a claim for death and
insurance benefits and damages against petitioners
Becmen Service Exporter and Promotion, Inc. (Becmen)
and White Falcon Services, Inc. (White Falcon) for the
death of their daughter Jasmin Cuaresma while working
as staff nurse in Riyadh, Saudi Arabia.
The Labor Arbiter (LA) dismissed the claim on the ground
that the Cuaresmas had already received insurance
benefits arising from their daughter’s death from the
Overseas Workers Welfare Administration (OWWA). The
LA also gave due credence to the findings of the Saudi
Arabian authorities that Jasmin committed suicide.
On appeal, however, the National Labor Relations
Commission (NLRC) found Becmen and White Falcon
jointly and severally liable for Jasmin’s death and ordered
them to pay the Cuaresmas the amount of
US$113,000.00 as actual damages. The NLRC relied on
the Cabanatuan City Health Office’s autopsy finding that
Jasmin died of criminal violence and rape.
Becmen and White Falcon appealed the NLRC Decision
to the Court of Appeals (CA). On June 28, 2006 the CA
held Becmen and White Falcon jointly and severally liable
with their Saudi Arabian employer for actual damages,
with Becmen having a right of reimbursement from White
Falcon. Becmen and White Falcon appealed the CA
Decision to this Court.
On April 7, 2009 the Court found Jasmin’s death not
work-related or work-connected since her rape and death
did not occur while she was on duty at the hospital or
doing acts incidental to her employment. The Court
deleted the award of actual damages but ruled that
Becmen’s corporate directors and officers are solidarily
liable with their company for its failure to investigate the
true nature of her death. Becmen and White Falcon
abandoned their legal, moral, and social duty to assist the
Cuaresmas in obtaining justice for their daughter.
Consequently, the Court held the foreign employer Rajab
and Silsilah, White Falcon, Becmen, and the latter’s
corporate directors and officers jointly and severally liable
to the Cuaresmas for: 1) P2,500,000.00 as moral
damages; 2) P2,500,000.00 as exemplary damages; 3)
attorney’s fees of 10% of the total monetary award; and
4) cost of suit.
On July 16, 2009 the corporate directors and officers of
Becmen, namely, Eufrocina Gumabay, Elvira Taguiam,
Lourdes Bonifacio and Eddie De Guzman (Gumabay, et
al.) filed a motion for leave to Intervene. They questioned
the constitutionality of the last sentence of the second
paragraph of Section 10, R.A. 8042 which holds the
corporate directors, officers and partners jointly and
solidarily liable with their company for money claims filed
by OFWs against their employers and the recruitment
firms. On September 9, 2009 the Court allowed the
intervention and admitted Gumabay, et al.’s motion for
reconsideration.
The key issue that Gumabay, et al. present is whether or
not the 2nd paragraph of Section 10, R.A. 8042, which
holds the corporate directors, officers, and partners of
recruitment and placement agencies jointly and solidarily
liable for money claims and damages that may be
adjudged against the latter agencies, is unconstitutional.
In G.R. 167590 (the PASEI case), the Quezon City RTC
held as unconstitutional the last sentence of the 2nd
paragraph of Section 10 of R.A. 8042. It pointed out that,
absent sufficient proof that the corporate officers and
directors of the erring company had knowledge of and
allowed the illegal recruitment, making them automatically
liable would violate their right to due process of law.
The pertinent portion of Section 10 provides:
SEC. 10. Money Claims. – x x x
The liability of the principal/employer and the
recruitment/placement agency for any and all claims
under this section shall be joint and several. This
provision shall be incorporated in the contract for
overseas employment and shall be a condition precedent
for its approval. The performance bond to be filed by the
recruitment/placement agency, as provided by law, shall
be answerable for all money claims or damages that may
be awarded to the workers. If the recruitment/placement
agency is a juridical being, the corporate officers and
directors and partners as the case may be, shall
themselves be jointly and solidarily liable with the
corporation or partnership for the aforesaid claims and
damages. (Emphasis supplied)
But the Court has already held, pending adjudication of
this case, that the liability of corporate directors and
officers is not automatic. To make them jointly and
solidarily liable with their company, there must be a
finding that they were remiss in directing the affairs of that
company, such as sponsoring or tolerating the conduct of
illegal activities. In the case of Becmen and White
Falcon, while there is evidence that these companies
were at fault in not investigating the cause of Jasmin’s
death, there is no mention of any evidence in the case
against them that intervenors Gumabay, et al., Becmen’s
corporate officers and directors, were personally involved
in their company’s particular actions or omissions in
Jasmin’s case.
As a final note, R.A. 8042 is a police power measure
intended to regulate the recruitment and deployment of
OFWs. It aims to curb, if not eliminate, the injustices and
abuses suffered by numerous OFWs seeking to work
abroad. The rule is settled that every statute has in its
favor the presumption of constitutionality. The Court
cannot inquire into the wisdom or expediency of the laws
enacted by the Legislative Department. Hence, in the
absence of a clear and unmistakable case that the statute
is unconstitutional, the Court must uphold its validity.
WHEREFORE, in G.R. 152642 and 152710, the Court
DISMISSES the petitions for having become moot and
academic.
In G.R. 167590, the Court SETS ASIDE the Decision of
the Regional Trial Court of Manila dated December 8,
2004 and DECLARES Sections 6, 7, and 9 of Republic
Act 8042 valid and constitutional.
In G.R. 182978-79 and G.R. 184298-99 as well as in G.R.
167590, the Court HOLDS the last sentence of the
second paragraph of Section 10 of Republic Act 8042
valid and constitutional. The Court, however,
RECONSIDERS and SETS ASIDE the portion of its
Decision in G.R. 182978-79 and G.R. 184298-99 that
held intervenors Eufrocina Gumabay, Elvira Taguiam,
Lourdes Bonifacio, and Eddie De Guzman jointly and
solidarily liable with respondent Becmen Services
Exporter and Promotion, Inc. to spouses Simplicia and
Mila Cuaresma for lack of a finding in those cases that
such intervenors had a part in the act or omission
imputed to their corporation.
SO ORDERED.
===========================================
Argued: June 26, 1971 Decided: June 30, 1971
NEW YORK TIMES CO. v. UNITED STATES, (1971)
No. 1873
Syllabus
The United States, which brought these actions to enjoin
publication in the New York Times and in the Washington
Post of certain classified material, has not met the "heavy
burden of showing justification for the enforcement of
such a [prior] restraint."
No. 1873, 44 F.2d 544, reversed and remanded; No.
1885, ___ U.S.App.D.C. ___, 446 F.2d 1327, affirmed.
PER CURIAM
We granted certiorari in these cases in which the United
States seeks to enjoin the New York Times and the
Washington Post from publishing the contents of a
classified study entitled "History of U.S. Decision-Making
Process on Viet Nam Policy." Post, pp. 942, 943.
"Any system of prior restraints of expression comes to
this Court bearing a heavy presumption against its
constitutional validity." Bantam Books, Inc. v.
Sullivan, 372 U. S. 58, 372 U. S. 70 (1963); see also Near
v. Minnesota, 283 U. S. 697 (1931). The Government
"thus carries a heavy burden of showing justification for
the imposition of such a restraint." Organization for a
Better Austin v. Keefe, 402 U. S. 415, 402 U. S.
419 (1971). The District Court for the Southern District of
New York, in the New York Times case, and the District
Court for the District of Columbia and the Court of
Appeals for the District of Columbia Circuit, in
the Washington Postcase, held that the Government had
not met that burden. We agree.
The judgment of the Court of Appeals for the District of
Columbia Circuit is therefore affirmed. The order of the
Court of Appeals for the Second Circuit is reversed, and
the case is remanded with directions to enter a judgment
affirming the judgment of the District Court for the
Southern District of New York. The stays entered June
25, 1971, by the Court are vacated. The judgments shall
issue forthwith.
So ordered.
* Together with No. 1885, United States v. Washington
Post Co. et al., on certiorari to the United States Court of
Appeals for the District of Columbia Circuit.
MR. JUSTICE BLACK, with whom MR. JUSTICE
DOUGLAS joins, concurring.
I adhere to the view that the Government's case against
the Washington Post should have been dismissed, and
that the injunction against the New York Times should
have been vacated without oral argument when the cases
were first presented to this Court. I believe
Page 403 U. S. 715
that every moment's continuance of the injunctions
against these newspapers amounts to a flagrant,
indefensible, and continuing violation of the First
Amendment. Furthermore, after oral argument, I agree
completely that we must affirm the judgment of the Court
of Appeals for the District of Columbia Circuit and reverse
the judgment of the Court of Appeals for the Second
Circuit for the reasons stated by my Brothers DOUGLAS
and BRENNAN. In my view, it is unfortunate that some of
my Brethren are apparently willing to hold that the
publication of news may sometimes be enjoined. Such a
holding would make a shambles of the First Amendment.
Our Government was launched in 1789 with the adoption
of the Constitution. The Bill of Rights, including the First
Amendment, followed in 1791. Now, for the first time in
the 182 years since the founding of the Republic, the
federal courts are asked to hold that the First Amendment
does not mean what it says, but rather means that the
Government can halt the publication of current news of
vital importance to the people of this country.
In seeking injunctions against these newspapers, and in
its presentation to the Court, the Executive Branch seems
to have forgotten the essential purpose and history of the
First Amendment. When the Constitution was adopted,
many people strongly opposed it because the document
contained no Bill of Rights to safeguard certain basic
freedoms. [Footnote 1] They especially feared that the
Page 403 U. S. 716
new powers granted to a central government might be
interpreted to permit the government to curtail freedom of
religion, press, assembly, and speech. In response to an
overwhelming public clamor, James Madison offered a
series of amendments to satisfy citizens that these great
liberties would remain safe and beyond the power of
government to abridge. Madison proposed what later
became the First Amendment in three parts, two of which
are set out below, and one of which proclaimed:
"The people shall not be deprived or abridged of their
right to speak, to write, or to publish their sentiments, and
the freedom of the press, as one of the great bulwarks of
liberty, shall be inviolable. [Footnote 2]"
(Emphasis added.) The amendments were offered to
curtail and restrict the general powers granted to the
Executive, Legislative, and Judicial Branches two years
before in the original Constitution. The Bill of Rights
changed the original Constitution into a new charter under
which no branch of government could abridge the
people's freedoms of press, speech, religion, and
assembly. Yet the Solicitor General argues and some
members of the Court appear to agree that the general
powers of the Government adopted in the original
Constitution should be interpreted to limit and restrict the
specific and emphatic guarantees of the Bill of Rights
adopted later. I can imagine no greater perversion of
history. Madison and the other Framers of the First
Amendment, able men
Page 403 U. S. 717
that they were, wrote in language they earnestly believed
could never be misunderstood: "Congress shall make no
law . . . abridging the freedom . . . of the press. . . ." Both
the history and language of the First Amendment support
the view that the press must be left free to publish news,
whatever the source, without censorship, injunctions, or
prior restraints.
In the First Amendment, the Founding Fathers gave the
free press the protection it must have to fulfill its essential
role in our democracy. The press was to serve the
governed, not the governors. The Government's power to
censor the press was abolished so that the press would
remain forever free to censure the Government. The
press was protected so that it could bare the secrets of
government and inform the people. Only a free and
unrestrained press can effectively expose deception in
government. And paramount among the responsibilities of
a free press is the duty to prevent any part of the
government from deceiving the people and sending them
off to distant lands to die of foreign fevers and foreign
shot and shell. In my view, far from deserving
condemnation for their courageous reporting, the New
York Times, the Washington Post, and other newspapers
should be commended for serving the purpose that the
Founding Fathers saw so clearly. In revealing the
workings of government that led to the Vietnam war, the
newspapers nobly did precisely that which the Founders
hoped and trusted they would do.
The Government's case here is based on premises
entirely different from those that guided the Framers of
the First Amendment. The Solicitor General has carefully
and emphatically stated:
"Now, Mr. Justice [BLACK], your construction of . . . [the
First Amendment] is well known, and I certainly respect it.
You say that no law means no law, and that should be
obvious. I can only
Page 403 U. S. 718
say, Mr. Justice, that to me it is equally obvious that 'no
law' does not mean 'no law,' and I would seek to
persuade the Court that that is true. . . . [T]here are other
parts of the Constitution that grant powers and
responsibilities to the Executive, and . . . the First
Amendment was not intended to make it impossible for
the Executive to function or to protect the security of the
United States. [Footnote 3]"
And the Government argues in its brief that, in spite of the
First Amendment,
"[t]he authority of the Executive Department to protect the
nation against publication of information whose disclosure
would endanger the national security stems from two
interrelated sources: the constitutional power of the
President over the conduct of foreign affairs and his
authority as Commander-in-Chief. [Footnote 4]"
In other words, we are asked to hold that, despite the
First Amendment's emphatic command, the Executive
Branch, the Congress, and the Judiciary can make laws
enjoining publication of current news and abridging
freedom of the press in the name of "national security."
The Government does not even attempt to rely on any act
of Congress. Instead, it makes the bold and dangerously
far-reaching contention that the courts should take it upon
themselves to "make" a law abridging freedom of the
press in the name of equity, presidential power and
national security, even when the representatives of the
people in Congress have adhered to the command of the
First Amendment and refused to make such a law.
[Footnote 5] Seeconcurring opinion of MR. JUSTICE
DOUGLAS,
Page 403 U. S. 719
post at 403 U. S. 721-722. To find that the President has
"inherent power" to halt the publication of news by resort
to the courts would wipe out the First Amendment and
destroy the fundamental liberty and security of the very
people the Government hopes to make "secure." No one
can read the history of the adoption of the First
Amendment without being convinced beyond any doubt
that it was injunctions like those sought here that Madison
and his collaborators intended to outlaw in this Nation for
all time.
The word "security" is a broad, vague generality whose
contours should not be invoked to abrogate the
fundamental law embodied in the First Amendment. The
guarding of military and diplomatic secrets at the expense
of informed representative government provides no real
security for our Republic. The Framers of the First
Amendment, fully aware of both the need to defend a new
nation and the abuses of the English and Colonial
governments, sought to give this new society strength
and security by providing that freedom of speech, press,
religion, and assembly should not be abridged. This
thought was eloquently expressed in 1937 by Mr. Chief
Justice Hughes -- great man and great Chief Justice that
he was -- when the Court held a man could not be
punished for attending a meeting run by Communists.
"The greater the importance of safeguarding the
community from incitements to the overthrow of our
institutions by force and violence, the more imperative is
the need to preserve inviolate the constitutional rights of
free speech, free press and free
Page 403 U. S. 720
assembly in order to maintain the opportunity for free
political discussion, to the end that government may be
responsive to the will of the people and that changes, if
desired, may be obtained by peaceful means. Therein lies
the security of the Republic, the very foundation of
constitutional government. [Footnote 6]"
[Footnote 1]
In introducing the Bill of Rights in the House of
Representatives, Madison said:
"[B]ut I believe that the great mass of the people who
opposed [the Constitution] disliked it because it did not
contain effectual provisions against the encroachments
on particular rights. . . ."
1 Annals of Cong. 433. Congressman Goodhue added:
"[I]t is the wish of many of our constituents that something
should be added to the Constitution to secure in a
stronger manner their liberties from the inroads of power."
Id. at 426.
[Footnote 2]
The other parts were:
"The civil rights of none shall be abridged on account of
religious belief or worship, nor shall any national religion
be established, nor shall the full and equal rights of
conscience be in any manner, or on any pretext,
infringed."
"The people shall not be restrained from peaceably
assembling and consulting for their common good, nor
from applying to the Legislature by petitions, or
remonstrances, for redress of their grievances."
1 Annals of Cong. 434.
[Footnote 3]
Tr. of Oral Arg. 76.
[Footnote 4]
Brief for the United States 13-14.
[Footnote 5]
Compare the views of the Solicitor General with those of
James Madison, the author of the First Amendment.
When speaking of the Bill of Rights in the House of
Representatives, Madison said:
"If they [the first ten amendments] are incorporated into
the Constitution, independent tribunals of justice will
consider themselves in a peculiar manner the guardians
of those rights; they will be an impenetrable bulwark
against every assumption of power in the Legislative or
Executive; they will be naturally led to resist every
encroachment upon rights expressly stipulated for in the
Constitution by the declaration of rights."
1 Annals of Cong. 439.
[Footnote 6]
De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE
BLACK joins, concurring.
While I join the opinion of the Court, I believe it necessary
to express my views more fully.
It should be noted at the outset that the First Amendment
provides that "Congress shall male no law . . . abridging
the freedom of speech, or of the press." That leaves, in
my view, no room for governmental restraint on the press.
[Footnote 2/1]
There is, moreover, no statute barring the publication by
the press of the material which the Times and the Post
seek to use. Title 18 U.S.C. § 793(e) provides that
"[w]hoever having unauthorized possession of, access to,
or control over any document, writing . . . or information
relating to the national defense which information the
possessor has reason to believe could be used to the
injury of the United States or to the advantage of any
foreign nation, willfully communicates . . . the same to any
person not entitled to receive it . . . [s]hall be fined
Page 403 U. S. 721
not more than $10,000 or imprisoned not more than ten
years, or both."
The Government suggests that the word "communicates"
is broad enough to encompass publication.
There are eight sections in the chapter on espionage and
censorship, §§ 792-799. In three of those eight, "publish"
is specifically mentioned: § 794(b) applies to
"Whoever, in time of war, with intent that the same shall
be communicated to the enemy, collects,
records, publishes, or communicates . . . [the disposition
of armed forces]."
Section 797 applies to whoever
"reproduces, publishes, sells, or gives away" photographs
of defense installations.
Section 798, relating to cryptography, applies to whoever:
"communicates, furnishes, transmits, or otherwise makes
available . . . or publishes" the described material.
[Footnote 2/2] (Emphasis added.)
Thus, it is apparent that Congress was capable of, and
did, distinguish between publishing and communication in
the various sections of the Espionage Act.
The other evidence that § 793 does not apply to the press
is a rejected version of § 793. That version read:
"During any national emergency resulting from a war to
which the United States is a party, or from threat of such
a war, the President may, by proclamation, declare the
existence of such emergency and, by proclamation,
prohibit the publishing or communicating of, or the
attempting to publish or communicate any information
relating to the national defense which, in his judgment, is
of such character that it is or might be useful to the
Page 403 U. S. 722
enemy."
55 Cong.Rec. 1763. During the debates in the Senate,
the First Amendment was specifically cited, and that
provision was defeated. 55 Cong.Rec. 2167.
Judge Gurfein's holding in the Times case that this Act
does not apply to this case was therefore preeminently
sound. Moreover, the Act of September 23, 1950, in
amending 18 U.S.C. § 793 states in § 1(b) that:
"Nothing in this Act shall be construed to authorize,
require, or establish military or civilian censorship or in
any way to limit or infringe upon freedom of the press or
of speech as guaranteed by the Constitution of the United
States and no regulation shall be promulgated hereunder
having that effect."
64 Stat. 987. Thus, Congress has been faithful to the
command of the First Amendment in this area.
So any power that the Government possesses must
come from its "inherent power."
The power to wage war is "the power to wage war
successfully." See Hirabayashi v. United States, 320 U.
S. 81,320 U. S. 93. But the war power stems from a
declaration of war. The Constitution by Art. I, § 8, gives
Congress, not the President, power "[t]o declare War."
Nowhere are presidential wars authorized. We need not
decide, therefore, what leveling effect the war power of
Congress might have.
These disclosures [Footnote 2/3] may have a serious
impact. But that is no basis for sanctioning a previous
restraint on
Page 403 U. S. 723
the press. As stated by Chief Justice Hughes in Near v.
Minnesota, 283 U. S. 697, 283 U. S. 719-720:
"While reckless assaults upon public men, and efforts to
bring obloquy upon those who are endeavoring faithfully
to discharge official duties, exert a baleful influence and
deserve the severest condemnation in public opinion, it
cannot be said that this abuse is greater, and it is
believed to be less, than that which characterized the
period in which our institutions took shape. Meanwhile,
the administration of government has become more
complex, the opportunities for malfeasance and
corruption have multiplied, crime has grown to most
serious proportions, and the danger of its protection by
unfaithful officials and of the impairment of the
fundamental security of life and property by criminal
alliances and official neglect, emphasizes the primary
need of a vigilant and courageous press, especially in
great cities. The fact that the liberty of the press may be
abused by miscreant purveyors of scandal does not make
any the less necessary the immunity of the press from
previous restraint in dealing with official misconduct."
As we stated only the other day in Organization for a
Better Austin v. Keefe, 402 U. S. 415, 402 U. S. 419,
"[a]ny prior restraint on expression comes to this Court
with a "heavy presumption" against its constitutional
validity."
The Government says that it has inherent powers to go
into court and obtain an injunction to protect the national
interest, which, in this case, is alleged to be national
security.
Near v. Minnesota, 283 U. S. 697, repudiated that
expansive doctrine in no uncertain terms.
The dominant purpose of the First Amendment was to
prohibit the widespread practice of governmental
suppression
Page 403 U. S. 724
of embarrassing information. It is common knowledge that
the First Amendment was adopted against the
widespread use of the common law of seditious libel to
punish the dissemination of material that is embarrassing
to the powers-that-be. See T. Emerson, The System of
Freedom of Expression, c. V (1970); Z. Chafee, Free
Speech in the United States, c. XIII (1941). The present
cases will, I think, go down in history as the most
dramatic illustration of that principle. A debate of large
proportions goes on in the Nation over our posture in
Vietnam. That debate antedated the disclosure of the
contents of the present documents. The latter are highly
relevant to the debate in progress.
Secrecy in government is fundamentally anti-democratic,
perpetuating bureaucratic errors. Open debate and
discussion of public issues are vital to our national health.
On public questions, there should be "uninhibited, robust,
and wide-open" debate. New York Times Co. v.
Sullivan, 376 U. S. 254, 376 U. S. 269-270.
I would affirm the judgment of the Court of Appeals in
the Post case, vacate the stay of the Court of Appeals in
the Times case, and direct that it affirm the District Court.
The stays in these cases that have been in effect for
more than a week constitute a flouting of the principles of
the First Amendment as interpreted in Near v. Minnesota.
[Footnote 2/1]
See Beauharnais v. Illinois, 343 U. S. 250, 343 U. S.
267 (dissenting opinion of MR. JUSTICE BLACK), 284
(my dissenting opinion); Roth v. United States, 354 U. S.
476, 354 U. S. 508 (my dissenting opinion which MR.
JUSTICE BLACK joined); Yates v. United States, 354 U.
S. 298, 354 U. S. 339 (separate opinion of MR. JUSTICE
BLACK which I joined); New York Times Co. v.
Sullivan, 376 U. S. 254, 376 U. S. 293 (concurring opinion
of MR. JUSTICE BLACK which I joined); Garrison v.
Louisiana, 379 U. S. 64, 379 U. S. 80 (my concurring
opinion which MR. JUSTICE BLACK joined).
[Footnote 2/2]
These documents contain data concerning the
communications system of the United States, the
publication of which is made a crime. But the criminal
sanction is not urged by the United States as the basis of
equity power.
[Footnote 2/3]
There are numerous sets of this material in existence,
and they apparently are not under any controlled custody.
Moreover, the President has sent a set to the Congress.
We start, then, with a case where there already is rather
wide distribution of the material that is destined for
publicity, not secrecy. I have gone over the material listed
in the in camera brief of the United States. It is all history,
not future events. None of it is more recent than 1968.
MR. JUSTICE BRENNAN, concurring.
I
I write separately in these cases only to emphasize what
should be apparent: that our judgments in the present
cases may not be taken to indicate the propriety, in the
future, of issuing temporary stays and restraining
Page 403 U. S. 725
orders to block the publication of material sought to be
suppressed by the Government. So far as I can
determine, never before has the United States sought to
enjoin a newspaper from publishing information in its
possession. The relative novelty of the questions
presented, the necessary haste with which decisions
were reached, the magnitude of the interests asserted,
and the fact that all the parties have concentrated their
arguments upon the question whether permanent
restraints were proper may have justified at least some of
the restraints heretofore imposed in these cases.
Certainly it is difficult to fault the several courts below for
seeking to assure that the issues here involved were
preserved for ultimate review by this Court. But even if it
be assumed that some of the interim restraints were
proper in the two cases before us, that assumption has
no bearing upon the propriety of similar judicial action in
the future. To begin with, there has now been ample time
for reflection and judgment; whatever values there may
be in the preservation of novel questions for appellate
review may not support any restraints in the future. More
important, the First Amendment stands as an absolute
bar to the imposition of judicial restraints in circumstances
of the kind presented by these cases.
II
The error that has pervaded these cases from the outset
was the granting of any injunctive relief whatsoever,
interim or otherwise. The entire thrust of the
Government's claim throughout these cases has been
that publication of the material sought to be enjoined
"could," or "might," or "may" prejudice the national interest
in various ways. But the First Amendment tolerates
absolutely no prior judicial restraints of the press
predicated upon surmise or conjecture that untoward
consequences
Page 403 U. S. 726
may result.* Our cases, it is true, have indicated that
there is a single, extremely narrow class of cases in
which the First Amendment's ban on prior judicial restraint
may be overridden. Our cases have thus far indicated
that such cases may arise only when the Nation "is at
war," Schenck v. United States, 249 U. S. 47,249 U. S.
52 (1919), during which times
"[n]o one would question but that a government might
prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the
number and location of troops."
Near v. Minnesota, 283 U. S. 697, 283 U. S. 716 (1931).
Even if the present world situation were assumed to be
tantamount to a time of war, or if the power of presently
available armaments would justify even in peacetime the
suppression of information that would set in motion a
nuclear holocaust, in neither of these actions has the
Government presented or even alleged that publication of
items from or based upon the material at issue would
cause the happening of an event of that nature. "[T]he
chief purpose of [the First Amendment's] guaranty [is] to
prevent previous restraints upon publication." Near v.
Minnesota, supra, at 283 U. S. 713. Thus, only
governmental allegation and proof that publication must
inevitably, directly,
Page 403 U. S. 727
and immediately cause the occurrence of an event
kindred to imperiling the safety of a transport already at
sea can support even the issuance of an interim
restraining order. In no event may mere conclusions be
sufficient, for if the Executive Branch seeks judicial aid in
preventing publication, it must inevitably submit the basis
upon which that aid is sought to scrutiny by the judiciary.
And, therefore, every restraint issued in this case,
whatever its form, has violated the First Amendment --
and not less so because that restraint was justified as
necessary to afford the courts an opportunity to examine
the claim more thoroughly. Unless and until the
Government has clearly made out its case, the First
Amendment commands that no injunction may issue.
* Freedman v. Maryland, 380 U. S. 51 (1965), and similar
cases regarding temporary restraints of allegedly
obscene materials are not in point. For those cases rest
upon the proposition that "obscenity is not protected by
the freedoms of speech and press." Roth v. United
States, 354 U. S. 476, 354 U. S. 481 (1957). Here there is
no question but that the material sought to be suppressed
is within the protection of the First Amendment; the only
question is whether, notwithstanding that fact, its
publication may be enjoined for a time because of the
presence of an overwhelming national interest. Similarly,
copyright cases have no pertinence here: the
Government is not asserting an interest in the particular
form of words chosen in the documents, but is seeking to
suppress the ideas expressed therein. And the copyright
laws, of course, protect only the form of expression, and
not the ideas expressed.
MR. JUSTICE STEWART, with whom MR. JUSTICE
WHITE joins, concurring.
In the governmental structure created by our Constitution,
the Executive is endowed with enormous power in the
two related areas of national defense and international
relations. This power, largely unchecked by the
Legislative [Footnote 3/1] and Judicial [Footnote 3/2]
branches, has been pressed to the very hilt since the
advent of the nuclear missile age. For better or for worse,
the simple fact is that a
Page 403 U. S. 728
President of the United States possesses vastly greater
constitutional independence in these two vital areas of
power than does, say, a prime minister of a country with a
parliamentary form of government.
In the absence of the governmental checks and balances
present in other areas of our national life, the only
effective restraint upon executive policy and power in the
areas of national defense and international affairs may lie
in an enlightened citizenry -- in an informed and critical
public opinion which alone can here protect the values of
democratic government. For this reason, it is perhaps
here that a press that is alert, aware, and free most vitally
serves the basic purpose of the First Amendment. For,
without an informed and free press, there cannot be an
enlightened people.
Yet it is elementary that the successful conduct of
international diplomacy and the maintenance of an
effective national defense require both confidentiality and
secrecy. Other nations can hardly deal with this Nation in
an atmosphere of mutual trust unless they can be
assured that their confidences will be kept. And, within
our own executive departments, the development of
considered and intelligent international policies would be
impossible if those charged with their formulation could
not communicate with each other freely, frankly, and in
confidence. In the area of basic national defense, the
frequent need for absolute secrecy is, of course, self-
evident.
I think there can be but one answer to this dilemma, if
dilemma it be. The responsibility must be where the
power is. [Footnote 3/3] If the Constitution gives the
Executive
Page 403 U. S. 729
a large degree of unshared power in the conduct of
foreign affairs and the maintenance of our national
defense, then, under the Constitution, the Executive must
have the largely unshared duty to determine and preserve
the degree of internal security necessary to exercise that
power successfully. It is an awesome responsibility,
requiring judgment and wisdom of a high order. I should
suppose that moral, political, and practical considerations
would dictate that a very first principle of that wisdom
would be an insistence upon avoiding secrecy for its own
sake. For when everything is classified, then nothing is
classified, and the system becomes one to be
disregarded by the cynical or the careless, and to be
manipulated by those intent on self-protection or self-
promotion. I should suppose, in short, that the hallmark of
a truly effective internal security system would be the
maximum possible disclosure, recognizing that secrecy
can best be preserved only when credibility is truly
maintained. But, be that as it may, it is clear to me that it
is the constitutional duty of the Executive -- as a matter of
sovereign prerogative, and not as a matter of law as the
courts know law -- through the promulgation and
enforcement of executive regulations, to protect
Page 403 U. S. 730
the confidentiality necessary to carry out its
responsibilities in the fields of international relations and
national defense.
This is not to say that Congress and the courts have no
role to play. Undoubtedly, Congress has the power to
enact specific and appropriate criminal laws to protect
government property and preserve government secrets.
Congress has passed such laws, and several of them are
of very colorable relevance to the apparent circumstances
of these cases. And if a criminal prosecution is instituted,
it will be the responsibility of the courts to decide the
applicability of the criminal law under which the charge is
brought. Moreover, if Congress should pass a specific law
authorizing civil proceedings in this field, the courts would
likewise have the duty to decide the constitutionality of
such a law, as well as its applicability to the facts proved.
But in the cases before us, we are asked neither to
construe specific regulations nor to apply specific laws.
We are asked, instead, to perform a function that the
Constitution gave to the Executive, not the Judiciary. We
are asked, quite simply, to prevent the publication by two
newspapers of material that the Executive Branch insists
should not, in the national interest, be published. I am
convinced that the Executive is correct with respect to
some of the documents involved. But I cannot say that
disclosure of any of them will surely result in direct,
immediate, and irreparable damage to our Nation or its
people. That being so, there can under the First
Amendment be but one judicial resolution of the issues
before us. I join the judgments of the Court.
[Footnote 3/1]
The President's power to make treaties and to appoint
ambassadors is, of course, limited by the requirement of
Art. II, § 2, of the Constitution that he obtain the advice
and consent of the Senate. Article I, § 8, empowers
Congress to "raise and support Armies," and "provide and
maintain a Navy." And, of course, Congress alone can
declare war. This power was last exercised almost 30
years ago at the inception of World War II. Since the end
of that war in 1945, the Armed Forces of the United
States have suffered approximately half a million
casualties in various parts of the world.
[Footnote 3/2]
See Chicago & Southern Air Lines v. Waterman S.S.
Corp., 333 U. S. 103; Hirabayashi v. United States, 320
U. S. 81; United States v. Curtiss-Wright Corp., 299 U. S.
304; cf. Mora v. McNamara, 128 U.S.App.D.C. 297, 387
F.2d 862, cert. denied, 389 U. S. 934.
[Footnote 3/3]
"It is quite apparent that, if, in the maintenance of our
international relations, embarrassment -- perhaps serious
embarrassment -- is to be avoided and success for our
aims achieved, congressional legislation which is to be
made effective through negotiation and inquiry within the
international field must often accord to the President a
degree of discretion and freedom from statutory
restriction which would not be admissible were domestic
affairs alone involved. Moreover, he, not Congress, has
the better opportunity of knowing the conditions which
prevail in foreign countries, and especially is this true in
time of war. He has his confidential sources of
information. He has his agents in the form of diplomatic,
consular and other officials. Secrecy in respect of
information gathered by them may be highly necessary,
and the premature disclosure of it productive of harmful
results. Indeed, so clearly is this true that the first
President refused to accede to a request to lay before the
House of Representatives the instructions,
correspondence and documents relating to the
negotiation of the Jay Treaty -- a refusal the wisdom of
which was recognized by the House itself, and has never
since been doubted. . . ."
United States v. Curtiss-Wright Corp., 299 U. S. 304, 299
U. S. 320.
MR. JUSTICE WHITE, with whom MR. JUSTICE
STEWART joins, concurring.
I concur in today's judgments, but only because of the
concededly extraordinary protection against prior
restraints
Page 403 U. S. 731
enjoyed by the press under our constitutional system. I do
not say that in no circumstances would the First
Amendment permit an injunction against publishing
information about government plans or operations.
[Footnote 4/1] Nor, after examining the materials the
Government characterizes as the most sensitive and
destructive, can I deny that revelation of these documents
will do substantial damage to public interests. Indeed, I
am confident that their disclosure will have that result. But
I nevertheless agree that the United States has not
satisfied the very heavy burden that it must meet to
warrant an injunction against publication in these cases,
at least in the absence of express and appropriately
limited congressional authorization for prior restraints in
circumstances such as these.
Page 403 U. S. 732
The Government's position is simply stated: the
responsibility of the Executive for the conduct of the
foreign affairs and for the security of the Nation is so
basic that the President is entitled to an injunction against
publication of a newspaper story whenever he can
convince a court that the information to be revealed
threatens "grave and irreparable" injury to the public
interest; [Footnote 4/2] and the injunction should issue
whether or not the material to be published is classified,
whether or not publication would be lawful under relevant
criminal statutes enacted by Congress, and regardless of
the circumstances by which the newspaper came into
possession of the information. At least in the absence of
legislation by Congress, based on its own investigations
and findings, I am quite unable to agree that the inherent
powers of the Executive and the courts reach so far as to
authorize remedies having such sweeping potential for
inhibiting publications by the press. Much of the difficulty
inheres in the "grave and irreparable danger" standard
suggested by the United States. If the United States were
to have judgment under such a standard in these cases,
our decision would be of little guidance to other courts in
other cases, for the material at issue here would not be
available from the Court's opinion or from public records,
nor would it be published by the press. Indeed, even
today, where we hold that the United States has not met
its burden, the material remains sealed in court records
and it is
Page 403 U. S. 733
properly not discussed in today's opinions. Moreover,
because the material poses substantial dangers to
national interests, and because of the hazards of criminal
sanctions, a responsible press may choose never to
publish the more sensitive materials. To sustain the
Government in these cases would start the courts down a
long and hazardous road that I am not willing to travel, at
least without congressional guidance and direction.
It is not easy to reject the proposition urged by the United
States, and to deny relief on its good faith claims in these
cases that publication will work serious damage to the
country. But that discomfiture is considerably dispelled by
the infrequency of prior-restraint cases. Normally,
publication will occur and the damage be done before the
Government has either opportunity or grounds for
suppression. So here, publication has already begun, and
a substantial part of the threatened damage has already
occurred. The fact of a massive breakdown in security is
known, access to the documents by many unauthorized
people is undeniable, and the efficacy of equitable relief
against these or other newspapers to avert anticipated
damage is doubtful, at best.
What is more, terminating the ban on publication of the
relatively few sensitive documents the Government now
seeks to suppress does not mean that the law either
requires or invites newspapers or others to publish them,
or that they will be immune from criminal action if they do.
Prior restraints require an unusually heavy justification
under the First Amendment, but failure by the
Government to justify prior restraints does not measure
its constitutional entitlement to a conviction for criminal
publication. That the Government mistakenly chose to
proceed by injunction does not mean that it could not
successfully proceed in another way.
When the Espionage Act was under consideration in
Page 403 U. S. 734
1917, Congress eliminated from the bill a provision that
would have given the President broad powers in time of
war to proscribe, under threat of criminal penalty, the
publication of various categories of information related to
the national defense. [Footnote 4/3] Congress at that time
was unwilling to clothe the President with such far-
reaching powers to monitor the press, and those opposed
to this part of the legislation assumed that a necessary
concomitant of such power was the power to "filter out the
news to the people through some man." 55 Cong.Rec.
2008 (remarks of Sen. Ashurst). However, these same
members of Congress appeared to have little doubt that
newspapers would be subject to criminal prosecution if
they insisted on publishing information of the type
Congress had itself determined should not be revealed.
Senator Ashurst, for example, was quite sure that the
editor of such a newspaper
"should be punished if he did publish information as to the
movements of the fleet, the troops, the aircraft, the
location of powder factories, the location of defense
works, and all that sort of thing."
Id. at 2009. [Footnote 4/4]
Page 403 U. S. 735
The Criminal Code contains numerous provisions
potentially relevant to these cases. Section 797 [Footnote
4/5] makes it a crime to publish certain photographs or
drawings of military installations. Section 798, [Footnote
4/6] also in precise language, proscribes knowing and
willful publication of any classified information concerning
the cryptographic systems
Page 403 U. S. 736
or communication intelligence activities of the United
States, as well as any information obtained from
communication intelligence operations. [Footnote 4/7] If
any of the material here at issue is of this nature, the
newspapers are presumably now on full notice of the
position of the United States, and must face the
consequences if they
Page 403 U. S. 737
publish. I would have no difficulty in sustaining
convictions under these sections on facts that would not
justify the intervention of equity and the imposition of a
prior restraint.
The same would be true under those sections of the
Criminal Code casting a wider net to protect the national
defense. Section 793(e) [Footnote 4/8] makes it a criminal
act for any unauthorized possessor of a document
"relating to the national defense" either (1) willfully to
communicate or cause to be communicated that
document to any person not entitled to receive it or (2)
willfully to retain the document and fail to deliver it to an
officer of the United States entitled to receive it. The
subsection was added in 1950 because preexisting law
provided no
Page 403 U. S. 738
penalty for the unauthorized possessor unless demand
for the documents was made. [Footnote 4/9]
"The dangers surrounding the unauthorized possession of
such items are self-evident,
Page 403 U. S. 739
and it is deemed advisable to require their surrender in
such a case, regardless of demand, especially since their
unauthorized possession may be unknown to the
authorities who would otherwise make the demand."
S.Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950). Of
course, in the cases before us, the unpublished
documents have been demanded by the United States,
and their import has been made known at least to counsel
for the newspapers involved. In Gorin v. United
States, 312 U. S. 19, 312 U. S. 28 (1941), the words
"national defense" as used in a predecessor of § 793
were held by a unanimous Court to have "a well
understood connotation" -- a "generic concept of broad
connotations, referring to the military and naval
establishments and the related activities of national
preparedness" -- and to be "sufficiently definite to apprise
the public of prohibited activities"
Page 403 U. S. 740
and to be consonant with due process. 312 U.S. at 312 U.
S. 28. Also, as construed by the Court
in Gorin,information "connected with the national
defense" is obviously not limited to that threatening
"grave and irreparable" injury to the United States.
[Footnote 4/10]
It is thus clear that Congress has addressed itself to the
problems of protecting the security of the country and the
national defense from unauthorized disclosure of
potentially damaging information. Cf. Youngstown Sheet
& Tube Co. v. Sawyer, 343 U. S. 579, 343 U. S. 585-586
(1952); see also id. at 343 U. S. 593-628 (Frankfurter, J.,
concurring). It has not, however, authorized the injunctive
remedy against threatened publication. It has apparently
been satisfied to rely on criminal sanctions and their
deterrent effect on the responsible, as well as the
irresponsible, press. I am not, of course, saying that
either of these newspapers has yet committed a crime, or
that either would commit a crime if it published all the
material now in its possession. That matter must await
resolution in the context of a criminal proceeding if one is
instituted by the United States. In that event, the issue of
guilt or innocence would be determined by procedures
and standards quite different from those that have
purported to govern these injunctive proceedings.
[Footnote 4/1]
The Congress has authorized a strain of prior restraints
against private parties in certain instances. The National
Labor Relations Board routinely issues cease and desist
orders against employers who it finds have threatened or
coerced employees in the exercise of protected
rights. See 29 U.S.C. § 160(c). Similarly, the Federal
Trade Commission is empowered to impose cease and
desist orders against unfair methods of competition. 15
U.S.C. § 45(b). Such orders can, and quite often do,
restrict what may be spoken or written under certain
circumstances. See, e.g., NLRB v. Gissel Packing
Co., 395 U. S. 575, 395 U. S. 616-620 (1969). Article I, §
8, of the Constitution authorizes Congress to secure the
"exclusive right" of authors to their writings, and no one
denies that a newspaper can properly be enjoined from
publishing the copyrighted works of another. See
Westermann Co. v. Dispatch Co., 249 U. S. 100 (1919).
Newspapers do themselves rely from time to time on the
copyright as a means of protecting their accounts of
important events. However, those enjoined under the
statutes relating to the National Labor Relations Board
and the Federal Trade Commission are private parties,
not the press, and, when the press is enjoined under the
copyright laws, the complainant is a private copyright
holder enforcing a private right. These situations are quite
distinct from the Government's request for an injunction
against publishing information about the affairs of
government, a request admittedly not based on any
statute.
[Footnote 4/2]
The "grave and irreparable danger" standard is that
asserted by the Government in this Court. In remanding
to Judge Gurfein for further hearings in
the Times litigation, five members of the Court of Appeals
for the Second Circuit directed him to determine whether
disclosure of certain items specified with particularity by
the Government would "pose such grave and immediate
danger to the security of the United States as to warrant
their publication being enjoined."
[Footnote 4/3]
"Whoever, in time of war, in violation of reasonable
regulations to be prescribed by the President, which he is
hereby authorized to make and promulgate, shall publish
any information with respect to the movement, numbers,
description, condition, or disposition of any of the armed
forces, ships, aircraft, or war materials of the United
States, or with respect to the plans or conduct of any
naval or military operations, or with respect to any works
or measures undertaken for or connected with, or
intended for the fortification or defense of any place, or
any other information relating to the public defense
calculated to be useful to the enemy, shall be punished
by a fine . . . or by imprisonment. . . ."
55 Cong.Rec. 2100.
[Footnote 4/4]
Senator Ashurst also urged that
"'freedom of the press' means freedom from the restraints
of a censor, means the absolute liberty and right to
publish whatever you wish; but you take your chances of
punishment in the courts of your country for the violation
of the laws of libel, slander, and treason."
55 Cong.Rec. 2005.
[Footnote 4/5]
Title 18 U.S.C. § 797 provides:
"On and after thirty days from the date upon which the
President defines any vital military or naval installation or
equipment as being within the category contemplated
under section 795 of this title, whoever reproduces,
publishes, sells, or gives away any photograph, sketch,
picture, drawing, map, or graphical representation of the
vital military or naval installations or equipment so
defined, without first obtaining permission of the
commanding officer of the military or naval post, camp, or
station concerned, or higher authority, unless such
photograph, sketch, picture, drawing, map, or graphical
representation has clearly indicated thereon that it has
been censored by the proper military or naval authority,
shall be fined not more than $1,000 or imprisoned not
more than one year, or both."
[Footnote 4/6]
In relevant part 18 U.S.C. § 798 provides:
"(a) Whoever knowingly and willfully communicates,
furnishes, transmits, or otherwise makes available to an
unauthorized person, or publishes, or uses in any manner
prejudicial to the safety or interest of the United States or
for the benefit of any foreign government to the detriment
of the United States any classified information -- "
"(1) concerning the nature, preparation, or use of any
code, cipher, or cryptographic system of the United
States or any foreign government; or"
"(2) concerning the design, construction, use,
maintenance, or repair of any device, apparatus, or
appliance used or prepared or planned for use by the
United States or any foreign government for
cryptographic or communication intelligence purposes; or"
"(3) concerning the communication intelligence activities
of the United States or any foreign government; or"
"(4) obtained by the process of communication
intelligence from the communications of any foreign
government, knowing the same to have been obtained by
such processes -- "
"Shall be fined not more than $10,000 or imprisoned not
more than ten years, or both."
[Footnote 4/7]
The purport of 18 U.S.C. § 798 is clear. Both the House
and Senate Reports on the bill, in identical terms, speak
of furthering the security of the United States by
preventing disclosure of information concerning the
cryptographic systems and the communication
intelligence systems of the United States, and explaining
that
"[t]his bill makes it a crime to reveal the methods,
techniques, and materiel used in the transmission by this
Nation of enciphered or coded messages. . . . Further, it
makes it a crime to reveal methods used by this Nation in
breaking the secret codes of a foreign nation. It also
prohibits under certain penalties the divulging of any
information which may have come into this Government's
hands as a result of such a code-breaking."
H.R.Rep. No. 1895, 81st Cong., 2d Sess., 1 (1950). The
narrow reach of the statute was explained as covering
"only a small category of classified matter, a category
which is both vital and vulnerable to an almost unique
degree." Id. at 2. Existing legislation was deemed
inadequate.
"At present, two other acts protect this information, but
only in a limited way. These are the Espionage Act of
1917 (40 Stat. 217) and the act of June 10, 1933 (48 Stat.
122). Under the first, unauthorized revelation of
information of this kind can be penalized only if it can be
proved that the person making the revelation did so with
an intent to injure the United States. Under the second,
only diplomatic codes and messages transmitted in
diplomatic codes are protected. The present bill is
designed to protect against knowing and willful
publication or any other revelation of all important
information affecting the United States communication
intelligence operations and all direct information about all
United States codes and ciphers."
Ibid. Section 798 obviously was intended to cover
publications by nonemployees of the Government, and to
ease the Government's burden in obtaining
convictions. See H.R.Rep. No. 1895, supra, at 2-5. The
identical Senate Report, not cited in parallel in the text of
this footnote, is S.Rep. No. 111, 81st Cong., 1st Sess.
(1949).
[Footnote 4/8]
Section 793(e) of 18 U.S.C. provides that:
"(e) Whoever having unauthorized possession of, access
to, or control over any document, writing, code book,
signal book, sketch, photograph, photographic negative,
blueprint, plan, map, model, instrument, appliance, or
note relating to the national defense, or information
relating to the national defense which information the
possessor has reason to believe could be used to the
injury of the United States or to the advantage of any
foreign nation, willfully communicates, delivers, transmits
or causes to be communicated, delivered, or transmitted,
or attempts to communicate, deliver, transmit or cause to
be communicated, delivered, or transmitted the same to
any person not entitled to receive it, or willfully retains the
same and fails to deliver it to the officer or employee of
the United States entitled to receive it;"
is guilty of an offense punishable by 10 years in prison, a
$10,000 fine, or both. It should also be noted that 18
U.S.C. § 793(g), added in 1950 (see 64 Stat. 1004;
S.Rep. No. 239, pt. 1, 81st Cong., 2d Sess., 9 (1950)),
provides that,
"[i]f two or more persons conspire to violate any of the
foregoing provisions of this section, and one or more of
such persons do any act to effect the object of the
conspiracy, each of the parties to such conspiracy shall
be subject to the punishment provided for the offense
which is the object of such conspiracy."
[Footnote 4/9]
The amendment of § 793 that added subsection (e) was
part of the Subversive Activities Control Act of 1950,
which was, in turn, Title I of the Internal Security Act of
1950. See 64 Stat. 987. The report of the Senate
Judiciary Committee best explains the purposes of the
amendment:
"Section 18 of the bill amends section 793 of title 18 of
the United States Code (espionage statute). The several
paragraphs of section 793 of title 18 are designated as
subsections (a) through (g) for purposes of convenient
reference. The significant changes which would be made
in section 793 of title 18 are as follows: "
"(1) Amends the fourth paragraph of section 793, title 18
(subsec. (d)), to cover the unlawful dissemination of
'information relating to the national defense which
information the possessor has reason to believe could be
used to the injury of the United States or to the advantage
of any foreign nation.' The phrase 'which information the
possessor has reason to believe could be used to the
injury of the United States or to the advantage of any
foreign nation' would modify only 'information relating to
the national defense,' and not the other items enumerated
in the subsection. The fourth paragraph of section 793 is
also amended to provide that only those with lawful
possession of the items relating to national defense
enumerated therein may retain them subject to demand
therefor. Those who have unauthorized possession of
such items are treated in a separate subsection."
"(2) Amends section 793, title 18 (subsec. (e)), to provide
that unauthorized possessors of items enumerated in
paragraph 4 of section 793 must surrender possession
thereof to the proper authorities without demand. Existing
law provides no penalty for the unauthorized possession
of such items unless a demand for them is made by the
person entitled to receive them. The dangers surrounding
the unauthorized possession of such items are self-
evident, and it is deemed advisable to require their
surrender in such a case, regardless of demand,
especially since their unauthorized possession may be
unknown to the authorities who would otherwise make the
demand. The only difference between subsection (d) and
subsection (e) of section 793 is that a demand by the
person entitled to receive the items would be a necessary
element of an offense under subsection (d) where the
possession is lawful, whereas such a demand would not
be a necessary element of an offense under subsection
(e) where the possession is unauthorized."
S.Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 8-9 (1950)
(emphasis added).
It seems clear from the foregoing, contrary to the
intimations of the District Court for the Southern District of
New York in this case, that, in prosecuting for
communicating or withholding a "document," as
contrasted with similar action with respect to
"information," the Government need not prove an intent to
injure the United States or to benefit a foreign nation, but
only willful and knowing conduct. The District Court relied
on Gorin v. United States, 312 U. S. 19 (1941). But that
case arose under other parts of the predecessor to §
793, see 312 U.S. at 312 U. S. 21-22 -- parts that
imposed different intent standards not repeated in §
793(d) or § 793(e). Cf. 18 U.S.C. §§ 793(a), (b), and (c).
Also, from the face of subsection (e) and from the context
of the Act of which it was a part, it seems undeniable that
a newspaper, as well as others unconnected with the
Government, are vulnerable to prosecution under §
793(e) if they communicate or withhold the materials
covered by that section. The District Court ruled that
"communication" did not reach publication by a
newspaper of documents relating to the national defense.
I intimate no views on the correctness of that conclusion.
But neither communication nor publication is necessary to
violate the subsection.
[Footnote 4/10]
Also relevant is 18 U.S.C. § 794. Subsection (b) thereof
forbids in time of war the collection or publication, with
intent that it shall be communicated to the enemy, of any
information with respect to the movements of military
forces,
"or with respect to the plans or conduct . . . of any naval
or military operations . . . or any other information relating
to the public defense, which might be useful to the
enemy. . . ."
MR. JUSTICE MARSHALL, concurring.
The Government contends that the only issue in these
cases is whether, in a suit by the United States, "the First
Amendment bars a court from prohibiting a newspaper
Page 403 U. S. 741
from publishing material whose disclosure would pose a
'grave and immediate danger to the security of the United
States.' " Brief for the United States 7. With all due
respect, I believe the ultimate issue in these cases is
even more basic than the one posed by the Solicitor
General. The issue is whether this Court or the Congress
has the power to make law.
In these cases, there is no problem concerning the
President's power to classify information as "secret" or
"top secret." Congress has specifically recognized
Presidential authority, which has been formally exercised
in Exec.Order 10501 (1953), to classify documents and
information. See, e.g., 18 U.S.C. § 798; 50 U.S.C. § 783.
[Footnote 5/1] Nor is there any issue here regarding the
President's power as Chief Executive and Commander in
Chief to protect national security by disciplining
employees who disclose information and by taking
precautions to prevent leaks.
The problem here is whether, in these particular cases,
the Executive Branch has authority to invoke the equity
jurisdiction of the courts to protect what it believes to be
the national interest. See In re Debs, 158 U. S. 564, 158
U. S. 584 (1895). The Government argues that, in
addition to the inherent power of any government to
protect itself, the President's power to conduct foreign
affairs and his position as Commander in Chief give him
authority to impose censorship on the press to protect his
ability to deal effectively with foreign nations and to
conduct the military affairs of the country. Of course, it is
beyond cavil that the President has broad powers by
virtue of his primary responsibility for the conduct of our
foreign affairs and his position as Commander in
Chief. Chicago & Southern Air Lines v. Waterman S.S.
Corp., 333 U. S. 103 (1948); Hirabayashi v. United
States, 320 U. S. 81, 320 U. S. 93 (1943); United States
v. Curtiss
Page 403 U. S. 742
Wright Corp., 299 U. S. 304 (1936). [Footnote 5/2] And, in
some situations, it may be that, under whatever inherent
powers the Government may have, as well as the implicit
authority derived from the President's mandate to conduct
foreign affairs and to act as Commander in Chief, there is
a basis for the invocation of the equity jurisdiction of this
Court as an aid to prevent the publication of material
damaging to "national security," however that term may
be defined.
It would, however, be utterly inconsistent with the concept
of separation of powers for this Court to use its power of
contempt to prevent behavior that Congress has
specifically declined to prohibit. There would be a similar
damage to the basic concept of these co-equal branches
of Government if, when the Executive Branch has
adequate authority granted by Congress to protect
"national security," it can choose, instead, to invoke the
contempt power of a court to enjoin the threatened
conduct. The Constitution provides that Congress shall
make laws, the President execute laws, and courts
interpret laws. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579 (1952). It did not provide for
government by injunction in which the courts and the
Executive Branch can "make law" without regard to the
action of Congress. It may be more convenient for the
Executive Branch if it need only convince a judge to
prohibit conduct, rather than ask the Congress to pass a
law, and it may be more convenient to enforce a
contempt order than to seek a criminal conviction in a jury
trial. Moreover, it may be considered politically wise to get
a court to share the responsibility for arresting those who
the Executive Branch has probable cause to believe are
violating the law. But convenience and political
considerations of the
Page 403 U. S. 743
moment do not justify a basic departure from the
principles of our system of government.
In these cases, we are not faced with a situation where
Congress has failed to provide the Executive with broad
power to protect the Nation from disclosure of damaging
state secrets. Congress has, on several occasions, given
extensive consideration to the problem of protecting the
military and strategic secrets of the United States. This
consideration has resulted in the enactment of statutes
making it a crime to receive, disclose, communicate,
withhold, and publish certain documents, photographs,
instruments, appliances, and information. The bulk of
these statutes is found in chapter 37 of U.S.C. Title 18,
entitled Espionage and Censorship. [Footnote 5/3] In that
chapter,
Page 403 U. S. 744
Congress has provided penalties ranging from a $10,000
fine to death for violating the various statutes.
Thus, it would seem that in order for this Court to issue an
injunction it would require a showing that such an
injunction would enhance the already exiting power of the
Government to act. See Bennett v. Laman, 277 N.Y. 368,
14 N.E.2d 439 (1938). It is a traditional axiom of equity
that a court of equity will not do a useless thing, just as it
is a traditional axiom that equity will not enjoin the
commission of a crime. See Z. Chafee & E. Re, Equity
935-954 (5th ed.1967); 1 H. Joyce, Injunctions §§ 580a
(1909). Here, there has been no attempt to make such a
showing. The Solicitor General does not even mention in
his brief whether the Government considers that there is
probable cause to believe a crime has been committed,
or whether there is a conspiracy to commit future crimes.
If the Government had attempted to show that there was
no effective remedy under traditional criminal law, it would
have had to show that there is no arguably applicable
statute. Of course, at this stage, this Court could not and
cannot determine whether there has been a violation of a
particular statute or decide the constitutionality of any
statute. Whether a good faith prosecution could have
been instituted under any statute could, however, be
determined.
Page 403 U. S. 745
At least one of the many statutes in this area seems
relevant to these cases. Congress has provided in 18
U.S.C. § 793(e) that whoever,
"having unauthorized possession of, access to, or control
over any document, writing, code book, signal book . . . or
note relating to the national defense, or information
relating to the national defense which information the
possessor has reason to believe could be used to the
injury of the United States or to the advantage of any
foreign nation, willfully communicates, delivers, transmits
. . . the same to any person not entitled to receive it, or
willfully retains the same and fails to deliver it to the
officer or employee of the United States entitled to
receive it . . . [s]hall be fined not more than $10,000 or
imprisoned not more than ten years, or both."
Congress has also made it a crime to conspire to commit
any of the offenses listed in 18 U.S.C. § 793(e).
It is true that Judge Gurfein found that Congress had not
made it a crime to publish the items and material
specified in § 793(e). He found that the words
"communicates, delivers, transmits . . ." did not refer to
publication of newspaper stories. And that view has some
support in the legislative history, and conforms with the
past practice of using the statute only to prosecute those
charged with ordinary espionage. But see103 Cong.Rec.
10449 (remarks of Sen. Humphrey). Judge Gurfein's view
of the statute is not, however, the only plausible
construction that could be given. See my Brother
WHITE's concurring opinion.
Even if it is determined that the Government could not in
good faith bring criminal prosecutions against the New
York Times and the Washington Post, it is clear that
Congress has specifically rejected passing legislation that
would have clearly given the President the power he
seeks here and made the current activity of the
newspapers unlawful. When Congress specifically
declines to make conduct unlawful, it is not for this Court
Page 403 U. S. 746
to redecide those issues -- to overrule Congress. See
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
579(1952).
On at least two occasions, Congress has refused to enact
legislation that would have made the conduct engaged in
here unlawful and given the President the power that he
seeks in this case. In 1917, during the debate over the
original Espionage Act, still the basic provisions of § 793,
Congress rejected a proposal to give the President in
time of war or threat of war authority to directly prohibit by
proclamation the publication of information relating to
national defense that might be useful to the enemy. The
proposal provided that:
"During any national emergency resulting from a war to
which the United States is a party, or from threat of such
a war, the President may, by proclamation, declare the
existence of such emergency and, by proclamation,
prohibit the publishing or communicating of, or the
attempting to publish or communicate any information
relating to the national defense which, in his judgment, is
of such character that it is or might be useful to the
enemy. Whoever violates any such prohibition shall be
punished by a fine of not more than $10,000 or by
imprisonment for not more than 10 years, or
both: Provided, That nothing in this section shall be
construed to limit or restrict any discussion, comment, or
criticism of the acts or policies of the Government or its
representatives or the publication of the same."
55 Cong.Rec. 1763. Congress rejected this proposal after
war against Germany had been declared, even though
many believed that there was a grave national emergency
and that the threat of security leaks and espionage was
serious. The Executive Branch has not gone to Congress
and requested that the decision to provide such power be
reconsidered. Instead,
Page 403 U. S. 747
the Executive Branch comes to this Court and asks that it
be granted the power Congress refused to give.
In 1957, the United States Commission on Government
Security found that
"[a]irplane journals, scientific periodicals, and even the
daily newspaper have featured articles containing
information and other data which should have been
deleted in whole or in part for security reasons."
In response to this problem, the Commission proposed
that
"Congress enact legislation making it a crime for any
person willfully to disclose without proper authorization,
for any purpose whatever, information classified 'secret'
or 'top secret,' knowing, or having reasonable grounds to
believe, such information to have been so classified."
Report of Commission on Government Security 619-620
(1957). After substantial floor discussion on the proposal,
it was rejected. See 103 Cong.Rec. 10447-10450. If the
proposal that Sen. Cotton championed on the floor had
been enacted, the publication of the documents involved
here would certainly have been a crime. Congress
refused, however, to make it a crime. The Government is
here asking this Court to remake that decision. This Court
has no such power.
Either the Government has the power under statutory
grant to use traditional criminal law to protect the country
or, if there is no basis for arguing that Congress has
made the activity a crime, it is plain that Congress has
specifically refused to grant the authority the Government
seeks from this Court. In either case, this Court does not
have authority to grant the requested relief. It is not for
this Court to fling itself into every breach perceived by
some Government official, nor is it for this Court to take
on itself the burden of enacting law, especially a law that
Congress has refused to pass.
I believe that the judgment of the United States Court of
Appeals for the District of Columbia Circuit should
Page 403 U. S. 748
be affirmed and the judgment of the United States Court
of Appeals for the Second Circuit should be reversed
insofar as it remands the case for further hearings.
[Footnote 5/1]
See n.3, infra.
[Footnote 5/2]
But see Kent v. Dulles, 357 U. S.
116 (1958); Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579 (1952).
[Footnote 5/3]
There are several other statutory provisions prohibiting
and punishing the dissemination of information, the
disclosure of which Congress thought sufficiently
imperiled national security to warrant that result. These
include 42 U.S.C. §§ 2161 through 2166, relating to the
authority of the Atomic Energy Commission to classify
and declassify "Restricted Data" ["Restricted Data" is a
term of art employed uniquely by the Atomic Energy Act].
Specifically, 42 U.S.C. § 2162 authorizes the Atomic
Energy Commission to classify certain information. Title
42 U.S.C. § 2274, subsection (a), provides penalties for a
person who
"communicates, transmits, or discloses [restricted data] . .
. with intent to injure the United States or with intent to
secure an advantage to any foreign nation. . . ."
Subsection (b) of § 2274 provides lesser penalties for one
who "communicates, transmits, or discloses" such
information "with reason to believe such data will be
utilized to injure the United States or to secure an
advantage to any foreign nation. . . ." Other sections of
Title 42 of the United States Code dealing with atomic
energy prohibit and punish acquisition, removal,
concealment, tampering with, alteration, mutilation, or
destruction of documents incorporating "Restricted Data"
and provide penalties for employees and former
employees of the Atomic Energy Commission, the armed
services, contractors and licensees of the Atomic Energy
Commission. Title 42 U.S.C. §§ 2276, 2277. Title 50
U.S.C.App. § 781, 56 Stat. 390, prohibits the making of
any sketch or other representation of military installations
or any military equipment located on any military
installation, as specified; and, indeed, Congress, in the
National Defense Act of 1940, 54 Stat. 676, as amended,
56 Stat. 179, conferred jurisdiction on federal district
courts over civil actions "to enjoin any violation" thereof.
50 U.S.C.App. § 1152(6). Title 50 U.S.C. § 783(b) makes
it unlawful for any officers or employees of the United
States or any corporation which is owned by the United
States to communicate material which has been
"classified" by the President to any person who that
governmental employee knows or has reason to believe
is an agent or representative of any foreign government
or any Communist organization.
MR. CHIEF JUSTICE BURGER, dissenting.
So clear are the constitutional limitations on prior restraint
against expression that, from the time of Near v.
Minnesota, 283 U. S. 697 (1931), until recently
in Organization for a Better Austin v. Keefe, 402 U. S.
415 (1971), we have had little occasion to be concerned
with cases involving prior restraints against news
reporting on matters of public interest. There is, therefore,
little variation among the members of the Court in terms
of resistance to prior restraints against publication.
Adherence to this basic constitutional principle, however,
does not make these cases simple. In these cases, the
imperative of a free and unfettered press comes into
collision with another imperative, the effective functioning
of a complex modern government, and, specifically, the
effective exercise of certain constitutional powers of the
Executive. Only those who view the First Amendment as
an absolute in all circumstances -- a view I respect, but
reject -- can find such cases as these to be simple or
easy.
These cases are not simple for another and more
immediate reason. We do not know the facts of the
cases. No District Judge knew all the facts. No Court of
Appeals judge knew all the facts. No member of this
Court knows all the facts.
Why are we in this posture, in which only those judges to
whom the First Amendment is absolute and permits of no
restraint in any circumstances or for any reason, are
really in a position to act?
I suggest we are in this posture because these cases
have been conducted in unseemly haste. MR. JUSTICE
HARLAN covers the chronology of events demonstrating
the hectic pressures under which these cases have been
processed, and I need not restate them. The prompt
Page 403 U. S. 749
setting of these cases reflects our universal abhorrence of
prior restraint. But prompt judicial action does not mean
unjudicial haste.
Here, moreover, the frenetic haste is due in large part to
the manner in which the Times proceeded from the date it
obtained the purloined documents. It seems reasonably
clear now that the haste precluded reasonable and
deliberate judicial treatment of these cases, and was not
warranted. The precipitate action of this Court aborting
trials not yet completed is not the kind of judicial conduct
that ought to attend the disposition of a great issue.
The newspapers make a derivative claim under the First
Amendment; they denominate this right as the public
"right to know"; by implication, the Times asserts a sole
trusteeship of that right by virtue of its journalistic "scoop."
The right is asserted as an absolute. Of course, the First
Amendment right itself is not an absolute, as Justice
Holmes so long ago pointed out in his aphorism
concerning the right to shout "fire" in a crowded theater if
there was no fire. There are other exceptions, some of
which Chief Justice Hughes mentioned by way of
example in Near v. Minnesota. There are no doubt other
exceptions no one has had occasion to describe or
discuss. Conceivably, such exceptions may be lurking in
these cases and, would have been flushed had they been
properly considered in the trial courts, free from
unwarranted deadlines and frenetic pressures. An issue
of this importance should be tried and heard in a judicial
atmosphere conducive to thoughtful, reflective
deliberation, especially when haste, in terms of hours, is
unwarranted in light of the long period the Times, by its
own choice, deferred publication. [Footnote 6/1]
Page 403 U. S. 750
It is not disputed that the Times has had unauthorized
possession of the documents for three to four months,
during which it has had its expert analysts studying them,
presumably digesting them and preparing the material for
publication. During all of this time, the Times, presumably
in its capacity as trustee of the public's "right to know,"
has held up publication for purposes it considered proper,
and thus public knowledge was delayed. No doubt this
was for a good reason; the analysis of 7,000 pages of
complex material drawn from a vastly greater volume of
material would inevitably take time, and the writing of
good news stories takes time. But why should the United
States Government, from whom this information was
illegally acquired by someone, along with all the counsel,
trial judges, and appellate judges be placed under
needless pressure? After these months of deferral, the
alleged "right to know" has somehow and suddenly
become a right that must be vindicated instanter.
Would it have been unreasonable, since the newspaper
could anticipate the Government's objections to release
of secret material, to give the Government an opportunity
to review the entire collection and determine whether
agreement could be reached on publication? Stolen or
not, if security was not, in fact, jeopardized, much of the
material could no doubt have been declassified, since it
spans a period ending in 1968. With such an approach --
one that great newspapers have in the past practiced and
stated editorially to be the duty of an honorable press --
the newspapers and Government might well have
narrowed
Page 403 U. S. 751
the area of disagreement as to what was and was not
publishable, leaving the remainder to be resolved in
orderly litigation, if necessary. To me, it is hardly
believable that a newspaper long regarded as a great
institution in American life would fail to perform one of the
basic and simple duties of every citizen with respect to
the discovery or possession of stolen property or secret
government documents. That duty, I had thought --
perhaps naively -- was to report forthwith, to responsible
public officers. This duty rests on taxi drivers, Justices,
and the New York Times. The course followed by the
Times, whether so calculated or not, removed any
possibility of orderly litigation of the issue. If the action of
the judges up to now has been correct, that result is
sheer happenstance. [Footnote 6/2]
Our grant of the writ of certiorari before final judgment in
the Times case aborted the trial in the District Court
before it had made a complete record pursuant to the
mandate of the Court of Appeals for the Second Circuit.
The consequence of all this melancholy series of events
is that we literally do not know what we are acting on. As I
see it, we have been forced to deal with litigation
concerning rights of great magnitude without an adequate
record, and surely without time for adequate treatment
either in the prior proceedings or in this Court. It is
interesting to note that counsel on both sides, in oral
argument before this Court, were frequently unable to
respond to questions on factual points. Not surprisingly,
they pointed out that they had been working literally
"around the clock," and simply were unable to review the
documents that give rise to these cases and
Page 403 U. S. 752
were not familiar with them. This Court is in no better
posture. I agree generally with MR. JUSTICE HARLAN
and MR. JUSTICE BLACKMUN, but I am not prepared to
reach the merits. [Footnote 6/3]
I would affirm the Court of Appeals for the Second Circuit
and allow the District Court to complete the trial aborted
by our grant of certiorari, meanwhile preserving the status
quo in the Post case. I would direct that the District Court,
on remand, give priority to the Times case to the
exclusion of all other business of that court, but I would
not set arbitrary deadlines.
I should add that I am in general agreement with much of
what MR. JUSTICE WHITE has expressed with respect
to penal sanctions concerning communication or retention
of documents or information relating to the national
defense.
We all crave speedier judicial processes, but, when
judges are pressured, as in these cases, the result is a
parody of the judicial function.
[Footnote 6/1]
As noted elsewhere, the Times conducted its analysis of
the 47 volumes of Government documents over a period
of several months, and did so with a degree of security
that a government might envy. Such security was
essential, of course, to protect the enterprise from others.
Meanwhile, the Times has copyrighted its material, and
there were strong intimations in the oral argument that the
Times contemplated enjoining its use by any other
publisher in violation of its copyright. Paradoxically, this
would afford it a protection, analogous to prior restraint,
against all others -- a protection the Times denies the
Government of the United States.
[Footnote 6/2]
Interestingly, the Times explained its refusal to allow the
Government to examine its own purloined documents by
saying in substance this might compromise its sources
and informants! The Times thus asserts a right to guard
the secrecy of its sources while denying that the
Government of the United States has that power.
[Footnote 6/3]
With respect to the question of inherent power of the
Executive to classify papers, records, and documents as
secret, or otherwise unavailable for public exposure, and
to secure aid of the courts for enforcement, there may be
an analogy with respect to this Court. No statute gives
this Court express power to establish and enforce the
utmost security measures for the secrecy of our
deliberations and records. Yet I have little doubt as to the
inherent power of the Court to protect the confidentiality
of its internal operations by whatever judicial measures
may be required.
MR. JUSTICE HARLAN, with whom THE CHIEF
JUSTICE and MR. JUSTICE BLACKMUN join,
dissenting.
These cases forcefully call to mind the wise admonition of
Mr. Justice Holmes, dissenting in Northern Securities Co.
v. United States, 193 U. S. 197, 193 U. S. 400-401
(1904):
"Great cases, like hard cases, make bad law. For great
cases are called great not by reason of their
Page 403 U. S. 753
real importance in shaping the law of the future, but
because of some accident of immediate overwhelming
interest which appeals to the feelings and distorts the
judgment. These immediate interests exercise a kind of
hydraulic pressure which makes what previously was
clear seem doubtful, and before which even well settled
principles of law will bend."
With all respect, I consider that the Court has been
almost irresponsibly feverish in dealing with these cases.
Both the Court of Appeals for the Second Circuit and the
Court of Appeals for the District of Columbia Circuit
rendered judgment on June 23. The New York Times'
petition for certiorari, its motion for accelerated
consideration thereof, and its application for interim relief
were filed in this Court on June 24 at about 11 a.m. The
application of the United States for interim relief in
the Post case was also filed here on June 24 at about
7:15 p.m. This Court's order setting a hearing before us
on June 26 at 11 a.m., a course which I joined only to
avoid the possibility of even more peremptory action by
the Court, was issued less than 24 hours before. The
record in the Post case was filed with the Clerk shortly
before 1 p.m. on June 25; the record in the Times case
did not arrive until 7 or 8 o'clock that same night. The
briefs of the parties were received less than two hours
before argument on June 26.
This frenzied train of events took place in the name of the
presumption against prior restraints created by the First
Amendment. Due regard for the extraordinarily important
and difficult questions involved in these litigations should
have led the Court to shun such a precipitate timetable. In
order to decide the merits of these cases properly, some
or all of the following questions should have been faced:
1. Whether the Attorney General is authorized to bring
these suits in the name of the United States.Compare
Page 403 U. S. 754
In re Debs, 158 U. S. 564 (1895), with Youngstown Sheet
& Tube Co. v. Sawyer, 343 U. S. 579 (1952). This
question involves as well the construction and validity of a
singularly opaque statute -- the Espionage Act, 18 U.S.C.
§ 793(e).
2. Whether the First Amendment permits the federal
courts to enjoin publication of stories which would present
a serious threat to national security. See Near v.
Minnesota, 283 U. S. 697, 283 U. S. 716 (1931) (dictum).
3. Whether the threat to publish highly secret documents
is of itself a sufficient implication of national security to
justify an injunction on the theory that, regardless of the
contents of the documents, harm enough results simply
from the demonstration of such a breach of secrecy.
4. Whether the unauthorized disclosure of any of these
particular documents would seriously impair the national
security.
5. What weight should be given to the opinion of high
officers in the Executive Branch of the Government with
respect to questions 3 and 4.
6. Whether the newspapers are entitled to retain and use
the documents notwithstanding the seemingly
uncontested facts that the documents, or the originals of
which they are duplicates, were purloined from the
Government's possession, and that the newspapers
received them with knowledge that they had been
feloniously acquired. Cf. Liberty Lobby, Inc. v.
Pearson, 129 U.S.App.D.C. 74, 390 F.2d 489 (1967,
amended 1968).
7. Whether the threatened harm to the national security or
the Government's possessory interest in the documents
justifies the issuance of an injunction against publication
in light of --
a. The strong First Amendment policy against prior
restraints on publication;
Page 403 U. S. 755
b. The doctrine against enjoining conduct in violation of
criminal statutes; and
c. The extent to which the materials at issue have
apparently already been otherwise disseminated.
These are difficult questions of fact, of law, and of
judgment; the potential consequences of erroneous
decision are enormous. The time which has been
available to us, to the lower courts,* and to the parties
has been wholly inadequate for giving these cases the
kind of consideration they deserve. It is a reflection on the
stability of the judicial process that these great issues --
as important as any that have arisen during my time on
the Court -- should have been decided under the
pressures engendered by the torrent of publicity that has
attended these litigations from their inception.
Forced as I am to reach the merits of these cases, I
dissent from the opinion and judgments of the Court.
Within the severe limitations imposed by the time
constraints under which I have been required to operate, I
can only state my reasons in telescoped form, even
though, in different circumstances, I would have felt
constrained to deal with the cases in the fuller sweep
indicated above.
It is a sufficient basis for affirming the Court of Appeals for
the Second Circuit in the Times litigation to observe that
its order must rest on the conclusion that, because of the
time elements the Government had not been given an
adequate opportunity to present its case
Page 403 U. S. 756
to the District Court. At the least this conclusion was not
an abuse of discretion.
In the Post litigation, the Government had more time to
prepare; this was apparently the basis for the refusal of
the Court of Appeals for the District of Columbia Circuit
on rehearing to conform its judgment to that of the
Second Circuit. But I think there is another and more
fundamental reason why this judgment cannot stand -- a
reason which also furnishes an additional ground for not
reinstating the judgment of the District Court in
the Times litigation, set aside by the Court of Appeals. It
is plain to me that the scope of the judicial function in
passing upon the activities of the Executive Branch of the
Government in the field of foreign affairs is very narrowly
restricted. This view is, I think, dictated by the concept of
separation of powers upon which our constitutional
system rests.
In a speech on the floor of the House of Representatives,
Chief Justice John Marshall, then a member of that body,
stated:
"The President is the sole organ of the nation in its
external relations, and its sole representative with foreign
nations."
10 Annals of Cong. 613 (1800). From that time, shortly
after the founding of the Nation, to this, there has been no
substantial challenge to this description of the scope of
executive power. See United States v. Curtiss-Wright
Corp., 299 U. S. 304, 299 U. S. 319-321 (1936),
collecting authorities.
From this constitutional primacy in the field of foreign
affairs, it seems to me that certain conclusions
necessarily follow. Some of these were stated concisely
by President Washington, declining the request of the
House of Representatives for the papers leading up to the
negotiation of the Jay Treaty:
"The nature of foreign negotiations requires caution, and
their success must often depend on secrecy;
Page 403 U. S. 757
and even when brought to a conclusion, a full disclosure
of all the measures, demands, or eventual concessions
which may have been proposed or contemplated would
be extremely impolitic; for this might have a pernicious
influence on future negotiations, or produce immediate
inconveniences, perhaps danger and mischief, in relation
to other powers."
1 J. Richardson, Messages and Papers of the Presidents
194-195 (1896).
The power to evaluate the "pernicious influence" of
premature disclosure is not, however, lodged in the
Executive alone. I agree that, in performance of its duty to
protect the values of the First Amendment against
political pressures, the judiciary must review the initial
Executive determination to the point of satisfying itself
that the subject matter of the dispute does lie within the
proper compass of the President's foreign relations
power. Constitutional considerations forbid "a complete
abandonment of judicial control."Cf. United States v.
Reynolds, 345 U. S. 1, 345 U. S. 8 (1953). Moreover, the
judiciary may properly insist that the determination that
disclosure of the subject matter would irreparably impair
the national security be made by the head of the
Executive Department concerned -- here, the Secretary of
State or the Secretary of Defense -- after actual personal
consideration by that officer. This safeguard is required in
the analogous area of executive claims of privilege for
secrets of state. See id. at 345 U. S. 8 and n. 20; Duncan
v. Cammell, Laird Co., [1942] A.C. 624, 638 (House of
Lords).
But, in my judgment, the judiciary may not properly go
beyond these two inquiries and redetermine for itself the
probable impact of disclosure on the national security.
"[T]he very nature of executive decisions as to foreign
policy is political, not judicial. Such decisions
Page 403 U. S. 758
are wholly confided by our Constitution to the political
departments of the government, Executive and
Legislative. They are delicate, complex, and involve large
elements of prophecy. They are and should be
undertaken only by those directly responsible to the
people whose welfare they advance or imperil. They are
decisions of a kind for which the Judiciary has neither
aptitude, facilities nor responsibility, and which has long
been held to belong in the domain of political power not
subject to judicial intrusion or inquiry."
Chicago & Southern Air Lines v. Waterman Steamship
Corp., 333 U. S. 103, 333 U. S. 111 (1948) (Jackson, J.).
Even if there is some room for the judiciary to override the
executive determination, it is plain that the scope of
review must be exceedingly narrow. I can see no
indication in the opinions of either the District Court or the
Court of Appeals in the Post litigation that the conclusions
of the Executive were given even the deference owing to
an administrative agency, much less that owing to a co-
equal branch of the Government operating within the field
of its constitutional prerogative.
Accordingly, I would vacate the judgment of the Court of
Appeals for the District of Columbia Circuit on this
ground, and remand the case for further proceedings in
the District Court. Before the commencement of such
further proceedings, due opportunity should be afforded
the Government for procuring from the Secretary of State
or the Secretary of Defense or both an expression of their
views on the issue of national security. The ensuing
review by the District Court should be in accordance with
the views expressed in this opinion. And, for the reasons
stated above, I would affirm the judgment of the Court of
Appeals for the Second Circuit.
Pending further hearings in each case conducted under
the appropriate ground rules, I would continue the
Page 403 U. S. 759
restraints on publication. I cannot believe that the doctrine
prohibiting prior restraints reaches to the point of
preventing courts from maintaining the status quo long
enough to act responsibly in matters of such national
importance as those involved here.
* The hearing in the Post case before Judge Gesell
began at 8 a.m. on June 21, and his decision was
rendered, under the hammer of a deadline imposed by
the Court of Appeals, shortly before 5 p.m. on the same
day. The hearing in the Times case before Judge Gurfein
was held on June 18, and his decision was rendered on
June 19. The Government's appeals in the two cases
were heard by the Courts of Appeals for the District of
Columbia and Second Circuits, each court sitting en
banc, on June 22. Each court rendered its decision on the
following afternoon.
MR. JUSTICE BLACKMUN, dissenting.
I join MR. JUSTICE HARLAN in his dissent. I also am in
substantial accord with much that MR. JUSTICE WHITE
says, by way of admonition, in the latter part of his
opinion.
At this point, the focus is on only the comparatively few
documents specified by the Government as critical. So far
as the other material -- vast in amount -- is concerned, let
it be published and published forthwith if the newspapers,
once the strain is gone and the sensationalism is eased,
still feel the urge so to do.
But we are concerned here with the few documents
specified from the 47 volumes. Almost 70 years ago, Mr.
Justice Holmes, dissenting in a celebrated case,
observed:
"Great cases, like hard cases, make bad law. For great
cases are called great not by reason of their real
importance in shaping the law of the future, but because
of some accident of immediate overwhelming interest
which appeals to the feelings and distorts the judgment.
These immediate interests exercise a kind of hydraulic
pressure. . . ."
Northen Securities Co. v. United States, 193 U. S.
197, 193 U. S. 400-401 (1904). The present cases, if not
great, are at least unusual in their posture and
implications, and the Holmes observation certainly has
pertinent application.
The New York Times clandestinely devoted a period of
three months to examining the 47 volumes that came into
its unauthorized possession. Once it had begun
publication
Page 403 U. S. 760
of material from those volumes, the New York case now
before us emerged. It immediately assumed, and ever
since has maintained, a frenetic pace and character.
Seemingly, once publication started, the material could
not be made public fast enough. Seemingly, from then on,
every deferral or delay, by restraint or otherwise, was
abhorrent, and was to be deemed violative of the First
Amendment and of the public's "right immediately to
know." Yet that newspaper stood before us at oral
argument and professed criticism of the Government for
not lodging its protest earlier than by a Monday telegram
following the initial Sunday publication.
The District of Columbia case is much the same.
Two federal district courts, two United States courts of
appeals, and this Court -- within a period of less than
three weeks from inception until today -- have been
pressed into hurried decision of profound constitutional
issues on inadequately developed and largely assumed
facts without the careful deliberation that, one would
hope, should characterize the American judicial process.
There has been much writing about the law and little
knowledge and less digestion of the facts. In the New
York case, the judges, both trial and appellate, had not
yet examined the basic material when the case was
brought here. In the District of Columbia case, little more
was done, and what was accomplished in this respect
was only on required remand, with the Washington Post,
on the excuse that it was trying to protect its source of
information, initially refusing to reveal what material it
actually possessed, and with the District Court forced to
make assumptions as to that possession.
With such respect as may be due to the contrary view,
this, in my opinion, is not the way to try a lawsuit of this
magnitude and asserted importance. It is not the way for
federal courts to adjudicate, and to be required to
adjudicate, issues that allegedly concern the Nation's
Page 403 U. S. 761
vital welfare. The country would be none the worse off
were the cases tried quickly, to be sure, but in the
customary and properly deliberative manner. The most
recent of the material, it is said, dates no later than 1968,
already about three years ago, and the Times itself took
three months to formulate its plan of procedure and, thus,
deprived its public for that period.
The First Amendment, after all, is only one part of an
entire Constitution. Article II of the great document vests
in the Executive Branch primary power over the conduct
of foreign affairs, and places in that branch the
responsibility for the Nation's safety. Each provision of the
Constitution is important, and I cannot subscribe to a
doctrine of unlimited absolutism for the First Amendment
at the cost of downgrading other provisions. First
Amendment absolutism has never commanded a majority
of this Court. See, for example, Near v. Minnesota, 283
U. S. 697, 283 U. S. 708 (1931), and Schenck v. United
States, 249 U. S. 47, 249 U. S. 52(1919). What is needed
here is a weighing, upon properly developed standards,
of the broad right of the press to print and of the very
narrow right of the Government to prevent. Such
standards are not yet developed. The parties here are in
disagreement as to what those standards should be. But
even the newspapers concede that there are situations
where restraint is in order and is constitutional. Mr.
Justice Holmes gave us a suggestion when he said
in Schenck,
"It is a question of proximity and degree. When a nation is
at war, many things that might be said in time of peace
are such a hindrance to its effort that their utterance will
not be endured so long as men fight and that no Court
could regard them as protected by any constitutional
right."
249 U.S. at 249 U. S. 52.
I therefore would remand these cases to be developed
expeditiously, of course, but on a schedule permitting the
Page 403 U. S. 762
orderly presentation of evidence from both sides, with the
use of discovery, if necessary, as authorized by the rules,
and with the preparation of briefs, oral argument, and
court opinions of a quality better than has been seen to
this point. In making this last statement, I criticize no
lawyer or judge. I know from past personal experience the
agony of time pressure in the preparation of litigation. But
these cases and the issues involved and the courts,
including this one, deserve better than has been
produced thus far.
It may well be that, if these cases were allowed to
develop as they should be developed, and to be tried as
lawyers should try them and as courts should hear them,
free of pressure and panic and sensationalism, other light
would be shed on the situation, and contrary
considerations, for me, might prevail. But that is not the
present posture of the litigation.
The Court, however, decides the cases today the other
way. I therefore add one final comment.
I strongly urge, and sincerely hope, that these two
newspapers will be fully aware of their ultimate
responsibilities to the United States of America. Judge
Wilkey, dissenting in the District of Columbia case, after a
review of only the affidavits before his court (the basic
papers had not then been made available by either party),
concluded that there were a number of examples of
documents that, if in the possession of the Post and if
published, "could clearly result in great harm to the
nation," and he defined "harm" to mean
"the death of soldiers, the destruction of alliances, the
greatly increased difficulty of negotiation with our
enemies, the inability of our diplomats to negotiate. . . ."
I, for one, have now been able to give at least some
cursory study not only to the affidavits, but to the material
itself. I regret to say that, from this examination, I fear that
Judge Wilkey's statements have possible foundation. I
therefore share
Page 403 U. S. 763
his concern. I hope that damage has not already been
done. If, however, damage has been done, and if, with
the Court's action today, these newspapers proceed to
publish the critical documents and there results therefrom
"the death of soldiers, the destruction of alliances, the
greatly increased difficulty of negotiation with our
enemies, the inability of our diplomats to negotiate,"
to which list I might add the factors of prolongation of the
war and of further delay in the freeing of United States
prisoners, then the Nation's people will know where the
responsibility for these sad consequences rests.
https://supreme.justia.com/cases/federal/us/403/713/
===========================================
G.R. No. L-119694 May 22, 1995
PPI v. COMELEC, 244 SCRA 272
FELICIANO, J.:
The Philippine Press Institute, Inc. ("PPI") is before this
Court assailing the constitutional validity of Resolution
No. 2772 issued by respondent Commission on Elections
("Comelec") and its corresponding Comelec directive
dated 22 March 1995, through a Petition for Certiorari and
Prohibition. Petitioner PPI is a non-stock, non-profit
organization of newspaper and magazine publishers.
On 2 March 1995, Comelec promulgated Resolution No.
2772, which reads in part:
xxx xxx xxx
Sec. 2. Comelec Space. — The Commission shall
procure free print space of not less than one half (1/2)
page in at least one newspaper of general circulation in
every province or city for use as "Comelec Space" from
March 6, 1995 in the case of candidates for senator and
from March 21, 1995 until May 12, 1995. In the absence
of said newspaper, "Comelec Space" shall be obtained
from any magazine or periodical of said province or city.
Sec. 3. Uses of Comelec Space. — "Comelec
Space" shall be allocated by the Commission, free of
charge, among all candidates within the area in which the
newspaper, magazine or periodical is circulated to enable
the candidates to make known their qualifications, their
stand on public issues and their platforms and programs
of government.
"Comelec Space" shall also be used by the Commission
for dissemination of vital election information.
Sec. 4. Allocation of Comelec Space. — (a) "Comelec
Space" shall also be available to all candidates during the
periods stated in Section 2 hereof. Its allocation shall be
equal and impartial among all candidates for the same
office. All candidates concerned shall be furnished a copy
of the allocation of "Comelec Space" for their information,
guidance and compliance.
(b) Any candidate desiring to avail himself of "Comelec
Space" from newspapers or publications based in the
Metropolitan Manila Area shall submit an application
therefor, in writing, to the Committee on Mass Media of
the Commission. Any candidate desiring to avail himself
of "Comelec Space" in newspapers or publications based
in the provinces shall submit his application therefor, in
writing, to the Provincial Election Supervisor concerned.
Applications for availment of "Comelec Space" maybe
filed at any time from the date of effectivity of this
Resolution.
(c) The Committee on Mass Media and the Provincial
Election Supervisors shall allocate available "Comelec
Space" among the candidates concerned by lottery of
which said candidates shall be notified in advance, in
writing, to be present personally or by representative to
witness the lottery at the date, time and place specified in
the notice. Any party objecting to the result of the lottery
may appeal to the Commission.
(d) The candidates concerned shall be notified by the
Committee on Mass Media or the Provincial Election
Supervisor, as the case maybe, sufficiently in advance
and in writing of the date of issue and the newspaper or
publication allocated to him, and the time within which he
must submit the written material for publication in the
"Comelec Space".
xxx xxx xxx
Sec. 8. Undue Reference to Candidates/Political Parties
in Newspapers. — No newspaper or publication shall
allow to be printed or published in the news, opinion,
features, or other sections of the newspaper or
publication accounts or comments which manifestly favor
or oppose any candidate or political party by unduly or
repeatedly referring to or including therein said candidate
or political party. However, unless the facts and
circumstances clearly indicate otherwise, the Commission
will respect the determination by the publisher and/or
editors of the newspapers or publications that the
accounts or views published are significant, newsworthy
and of public interest. (Emphasis supplied)
Apparently in implementation of this Resolution, Comelec
through Commissioner Regalado E. Maambong sent
identical letters, dated 22 March 1995, to various
publishers of newspapers like the Business World,
the Philippine Star, the Malaya and the Philippine Times
Journal, all members of PPI. These letters read as
follows:
This is to advise you that pursuant to Resolution No. 2772
of the Commission on Elections, you are directed to
provide free print space of not less than one half (1/2)
page for use as "Comelec Space" or similar to the print
support which you have extended during the May 11,
1992 synchronized elections which was 2 full pages for
each political party fielding senatorial candidates, from
March 6, 1995 to May 6, 1995, to make known their
qualifications, their stand on public issues and their
platforms and programs of government.
We shall be informing the political parties and candidates
to submit directly to you their pictures, biographical data,
stand on key public issues and platforms of
government either as raw data or in the form of positives
or camera-ready materials.
Please be reminded that the political parties/candidates
may be accommodated in your publication any day upon
receipt of their materials until May 6, 1995 which is the
last day for campaigning.
We trust you to extend your full support and cooperation
in this regard. (Emphasis supplied)
In this Petition for Certiorari and Prohibition with prayer
for the issuance of a Temporary Restraining Order, PPI
asks us to declare Comelec Resolution No. 2772
unconstitutional and void on the ground that it violates the
prohibition imposed by the Constitution upon the
government, and any of its agencies, against the taking of
private property for public use without just compensation.
Petitioner also contends that the 22 March 1995 letter
directives of Comelec requiring publishers to give free
"Comelec Space" and at the same time process raw data
to make it camera-ready, constitute impositions of
involuntary servitude, contrary to the provisions of Section
18 (2), Article III of the 1987 Constitution. Finally, PPI
argues that Section 8 of Comelec Resolution No. 2772 is
violative of the constitutionally guaranteed freedom of
speech, of the press and of expression.
On 20 April 1995, this Court issued a Temporary
Restraining Order enjoining Comelec from enforcing and
implementing Section 2 of Resolution No. 2772, as well
as the Comelec directives addressed to various print
media enterprises all dated 22 March 1995. The Court
also required the respondent to file a Comment on the
Petition.
The Office of the Solicitor General filed its Comment on
behalf of respondent Comelec alleging that Comelec
Resolution No. 2772 does not impose upon the
publishers any obligation to provide free print space in the
newspapers as it does not provide any criminal or
administrative sanction for non-compliance with that
Resolution. According to the Solicitor General, the
questioned Resolution merely established guidelines to
be followed in connection with the procurement of
"Comelec space," the procedure for and mode of
allocation of such space to candidates and the conditions
or requirements for the candidate's utilization of the
"Comelec space" procured. At the same time, however,
the Solicitor General argues that even if the questioned
Resolution and its implementing letter directives are
viewed as mandatory, the same would nevertheless be
valid as an exercise of the police power of the State. The
Solicitor General also maintains that Section 8 of
Resolution No. 2772 is a permissible exercise of the
power of supervision or regulation of the Comelec over
the communication and information operations of print
media enterprises during the election period to safeguard
and ensure a fair, impartial and credible election.
At the oral hearing of this case held on 28 April 1995,
respondent Comelec through its Chairman, Hon.
Bernardo Pardo, in response to inquiries from the Chief
Justice and other Members of the Court, stated that
Resolution No. 2772, particularly Section 2 thereof and
the 22 March 1995 letters dispatched to various members
of petitioner PPI, were not intended to compel those
members to supply Comelec with free print space.
Chairman Pardo represented to the Court that Resolution
and the related letter-directives were merely designed to
solicit from the publishers the same free print space
which many publishers had voluntarily given to Comelec
during the election period relating to the 11 May 1992
elections. Indeed, the Chairman stated that the Comelec
would, that very afternoon, meet and adopt an
appropriate amending or clarifying resolution, a certified
true copy of which would forthwith be filed with the Court.
On 5 May 1995, the Court received from the Office of the
Solicitor General a manifestation which attached a copy
of Comelec Resolution No. 2772-A dated 4 May 1995.
The operative portion of this Resolution follows:
NOW THEREFORE, pursuant to the powers vested in it
by the Constitution, the Omnibus Election Code, Republic
Acts No. 6646 and 7166 and other election laws, the
Commission on Elections RESOLVED to clarify Sections
2 and 8 of Res. No. 2772 as follows:
1. Section 2 of Res. No. 2772 shall not be construed to
mean as requiring publishers of the different mass media
print publications to provide print space under pain of
prosecution, whether administrative, civil or criminal,
there being no sanction or penalty for violation of said
Section provided for either in said Resolution or in
Section 90 of Batas Pambansa Blg. 881, otherwise
known as the Omnibus Election Code, on the grant of
"Comelec space."
2. Section 8 of Res. No. 2772 shall not be construed to
mean as constituting prior restraint on the part of
publishers with respect to the printing or publication of
materials in the news, opinion, features or other sections
of their respective publications or other accounts or
comments, it being clear from the last sentence of said
Section 8 that the Commission shall, "unless the facts
and circumstances clearly indicate otherwise . . . respect
the determination by the publisher and/or editors of the
newspapers or publications that the accounts or views
published are significant, newsworthy and of public
interest."
This Resolution shall take effect upon approval.
(Emphasis in the original)
While, at this point, the Court could perhaps simply
dismiss the Petition for Certiorari and Prohibition as
having become moot and academic, we consider it not
inappropriate to pass upon the first constitutional issue
raised in this case. Our hope is to put this issue to rest
and prevent its resurrection.
Section 2 of Resolution No. 2772 is not a model of clarity
in expression. Section 1 of Resolution No. 2772-A did not
try to redraft Section 2; accordingly, Section 2 of
Resolution No. 2772 persists in its original form. Thus, we
must point out that, as presently worded, and in particular
as interpreted and applied by the Comelec itself in its 22
March 1995 letter-directives to newspaper publishers,
Section 2 of Resolution No. 2772 is clearly susceptible of
the reading that petitioner PPI has given it. That
Resolution No. 2772 does not, in express terms, threaten
publishers who would disregard it or its implementing
letters with some criminal or other sanction, does not by
itself demonstrate that the Comelec's original intention
was simply to solicit or request voluntary donations of
print space from publishers. A written communication
officially directing a print media company to supply free
print space, dispatched by a government (here a
constitutional) agency and signed by a member of the
Commission presumably legally authorized to do so, is
bound to produce a coercive effect upon the company so
addressed. That the agency may not be legally
authorized to impose, or cause the imposition of, criminal
or other sanctions for disregard of such directions, only
aggravates the constitutional difficulties inhearing in the
present situation. The enactment or addition of such
sanctions by the legislative authority itself would be open
to serious constitutional objection.
To compel print media companies to donate "Comelec-
space" of the dimensions specified in Section 2 of
Resolution No. 2772 (not less than one-half page),
amounts to "taking" of private personal property for public
use or purposes. Section 2 failed to specify the
intended frequency of such compulsory "donation:"
only once during the period from 6 March 1995 (or 21
March 1995) until 12 May 1995? or everyday or once a
week? or as often as Comelec may direct during the
same period? The extent of the taking or deprivation is
not insubstantial; this is not a case of a de
minimistemporary limitation or restraint upon the use of
private property. The monetary value of the compulsory
"donation," measured by the advertising rates ordinarily
charged by newspaper publishers whether in cities or in
non-urban areas, may be very substantial indeed.
The taking of print space here sought to be effected may
first be appraised under the rubric of expropriation of
private personal property for public use. The threshold
requisites for a lawful taking of private property for public
use need to be examined here: one is the necessity for
the taking; another is the legal authority to effect the
taking. The element of necessity for the taking has not
been shown by respondent Comelec. It has not been
suggested that the members of PPI are unwilling to
sell print space at their normal rates to Comelec for
election purposes. Indeed, the unwillingness or
reluctance of Comelec to buy print space lies at the heart
of the problem. Similarly, it has not been suggested, let
alone demonstrated, that Comelec has been granted the
power of eminent domain either by the Constitution or by
the legislative authority. A reasonable relationship
between that power and the enforcement and
administration of election laws by Comelec must be
shown; it is not casually to be assumed.
That the taking is designed to subserve "public use" is not
contested by petitioner PPI. We note only that, under
Section 3 of Resolution No. 2772, the free "Comelec
space" sought by the respondent Commission would be
used not only for informing the public about the identities,
qualifications and programs of government of candidates
for elective office but also for "dissemination of vital
election information" (including, presumably, circulars,
regulations, notices, directives, etc. issued by Comelec).
It seems to the Court a matter of judicial notice that
government offices and agencies (including the Supreme
Court) simply purchase print space, in the ordinary course
of events, when their rules and regulations, circulars,
notices and so forth need officially to be brought to the
attention of the general public.
The taking of private property for public use is, of course,
authorized by the Constitution, but not without payment of
"just compensation" (Article III, Section 9). And apparently
the necessity of paying compensation for "Comelec
space" is precisely what is sought to be avoided by
respondent Commission, whether Section 2 of Resolution
No. 2772 is read as petitioner PPI reads it, as an
assertion of authority to require newspaper publishers to
"donate" free print space for Comelec purposes, or as an
exhortation, or perhaps an appeal, to publishers to donate
free print space, as Section 1 of Resolution No. 2772-A
attempts to suggest. There is nothing at all to prevent
newspaper and magazine publishers from voluntarily
giving free print space to Comelec for the purposes
contemplated in Resolution No. 2772. Section 2 of
Resolution No. 2772 does not, however, provide a
constitutional basis for compelling publishers, against
their will, in the kind of factual context here present, to
provide free print space for Comelec purposes. Section 2
does not constitute a valid exercise of the power of
eminent domain.
We would note that the ruling here laid down by the Court
is entirely in line with the theory of democratic
representative government. The economic costs of
informing the general public about the qualifications and
programs of those seeking elective office are most
appropriately distributed as widely as possible throughout
our society by the utilization of public funds, especially
funds raised by taxation, rather than cast solely on one
small sector of society, i.e., print media enterprises. The
benefits which flow from a heightened level of information
on and the awareness of the electoral process are
commonly thought to be community-wide; the burdens
should be allocated on the same basis.
As earlier noted, the Solicitor General also contended that
Section 2 of Resolution No. 2772, even if read as
compelling publishers to "donate" "Comelec space, " may
be sustained as a valid exercise of the police power of the
state. This argument was, however, made too casually to
require prolonged consideration on our part. Firstly, there
was no effort (and apparently no inclination on the part of
Comelec) to show that the police power — essentially a
power of legislation — has been constitutionally
delegated to respondent Commission. Secondly, while
private property may indeed be validly taken in the
legitimate exercise of the police power of the state, there
was no attempt to show compliance in the instant case
with the requisites of a lawful taking under the police
power.
Section 2 of Resolution No. 2772 is a blunt and heavy
instrument that purports, without a showing of existence
of a national emergency or other imperious public
necessity, indiscriminately and without regard to the
individual business condition of particular newspapers or
magazines located in differing parts of the country, to take
private property of newspaper or magazine publishers.
No attempt was made to demonstrate that a real and
palpable or urgent necessity for the taking of print space
confronted the Comelec and that Section 2 of Resolution
No. 2772 was itself the only reasonable and calibrated
response to such necessity available to the Comelec.
Section 2 does not constitute a valid exercise of the
police power of the State.
We turn to Section 8 of Resolution No. 2772, which needs
to be quoted in full again:
Sec. 8. Undue Reference to Candidates/Political Parties
in Newspapers. — No newspaper or publication shall
allow to be printed or published in the news, opinion,
features, or other sections of the newspaper or
publication accounts or comments which manifestly favor
or oppose any candidate or political party by unduly or
repeatedly referring to or including therein said candidate
or political party. However, unless the facts and
circumstances clearly indicate otherwise, the Commission
will respect the determination by the publisher and/or
editors of the newspapers or publications that the
accounts or views published are significant, newsworthy
and of public interest.
It is not easy to understand why Section 8 was included
at all in Resolution No. 2772. In any case, Section 8
should be viewed in the context of our decision
in National Press Club v. Commission on
Elections. There the Court sustained the constitutionality
of Section 11 (b) of R.A. No. 6646, known as the Electoral
Reforms Law of 1987, which prohibits the sale or
donation of print space and airtime for campaign or other
political purposes, except to the Comelec. In doing so, the
Court carefully distinguished (a) paid political
advertisements which are reached by the prohibition of
Section 11 (b), from (b) the reporting of news,
commentaries and expressions of belief or opinion by
reporters, broadcasters, editors, commentators or
columnists which fall outside the scope of Section 11 (b)
and which are protected by the constitutional guarantees
of freedom of speech and of the press:
Secondly, and more importantly, Section 11 (b) is limited
in its scope of application. Analysis of Section 11
(b) shows that it purports to apply only to the purchase
and sale, including purchase and sale disguised as a
donation, of print space and air time for campaign or
other political purposes. Section 11 (b) does not
purport in any way to restrict the reporting by
newspapers or radio or television stations of news or
news-worthy events relating to candidates, their
qualifications, political parties and programs of
government. Moreover, Section 11 (b) does not reach
commentaries and expressions of belief or opinion by
reporters or broadcaster or editors or commentators or
columnists in respect of candidates, their qualifications,
and programs and so forth, so long at least as such
comments, opinions and beliefs are not in fact
advertisements for particular candidates covertly paid for.
In sum, Section 11 (b) is not to be read as reaching any
report or commentary or other coverage that, in
responsible media, is not paid for by candidates for
political office. We read Section 11 (b) as designed to
cover only paid political advertisements of particular
candidates.
The above limitation in scope of application of Section 11
(b) — that it does not restrict either the reporting of or the
expression of belief or opinion or comment upon the
qualifications and programs and activities of any and all
candidates for office — constitutes the critical distinction
which must be made between the instant case and that
of Sanidad v. Commission on Elections. . . . (Citations
omitted; emphasis supplied)
Section 8 of Resolution No. 2772 appears to represent
the effort of the Comelec to establish a guideline for
implementation of the above-quoted distinction and
doctrine in National Press Club an effort not blessed with
evident success. Section 2 of Resolution No. 2772-A
while possibly helpful, does not add substantially to the
utility of Section 8 of Resolution No. 2772. The distinction
between paid political advertisements on the one hand
and news reports, commentaries and expressions of
belief or opinion by reporters, broadcasters, editors, etc.
on the other hand, can realistically be given operative
meaning only in actual cases or controversies, on a case-
to-case basis, in terms of very specific sets of facts.
At all events, the Court is bound to note that PPI has
failed to allege any specific affirmative action on the part
of Comelec designed to enforce or implement Section 8.
PPI has not claimed that it or any of its members has
sustained actual or imminent injury by reason of Comelec
action under Section 8. Put a little differently, the Court
considers that the precise constitutional issue here
sought to be raised — whether or not Section 8 of
Resolution No. 2772 constitutes a permissible exercise of
the Comelec's power under Article IX, Section 4 of the
Constitution to
supervise or regulate the enjoyment or utilization of all
franchise or permits for the operation of — media of
communication or information — [for the purpose of
ensuring] equal opportunity, time and space, and the right
of reply, including reasonable, equal rates therefore, for
public information campaigns and forums among
candidates in connection with the objective of holding
free, orderly honest, peaceful and credible elections —
is not ripe for judicial review for lack of an actual case or
controversy involving, as the very lis mota thereof, the
constitutionality of Section 8.
Summarizing our conclusions:
1. Section 2 of Resolution No. 2772, in its present form
and as interpreted by Comelec in its 22 March 1995 letter
directives, purports to require print media enterprises to
"donate" free print space to Comelec. As such, Section 2
suffers from a fatal constitutional vice and must be set
aside and nullified.
2. To the extent it pertains to Section 8 of Resolution No.
2772, the Petition for Certiorari and Prohibition must be
dismissed for lack of an actual, justiciable case or
controversy.
WHEREFORE, for all the foregoing, the Petition
for Certiorari and Prohibition is GRANTED in part and
Section 2 of Resolution No. 2772 in its present form and
the related letter-directives dated 22 March 1995 are
hereby SET ASIDE as null and void, and the Temporary
Restraining Order is hereby MADE PERMANENT. The
Petition is DISMISSED in part, to the extent it relates to
Section 8 of Resolution No. 2772. No pronouncement as
to costs.
===========================================
G.R. No. L-75697 June 18, 1987
Tio v. Videogram Regulatory Board, 151 SCRA 208
MELENCIO-HERRERA, J.:
This petition was filed on September 1, 1986 by petitioner
on his own behalf and purportedly on behalf of other
videogram operators adversely affected. It assails the
constitutionality of Presidential Decree No. 1987 entitled
"An Act Creating the Videogram Regulatory Board" with
broad powers to regulate and supervise the videogram
industry (hereinafter briefly referred to as the BOARD).
The Decree was promulgated on October 5, 1985 and
took effect on April 10, 1986, fifteen (15) days after
completion of its publication in the Official Gazette.
On November 5, 1985, a month after the promulgation of
the abovementioned decree, Presidential Decree No.
1994 amended the National Internal Revenue Code
providing, inter alia:
SEC. 134. Video Tapes. — There shall be collected on
each processed video-tape cassette, ready for playback,
regardless of length, an annual tax of five pesos;
Provided, That locally manufactured or imported blank
video tapes shall be subject to sales tax.
On October 23, 1986, the Greater Manila Theaters
Association, Integrated Movie Producers, Importers and
Distributors Association of the Philippines, and Philippine
Motion Pictures Producers Association, hereinafter
collectively referred to as the Intervenors, were permitted
by the Court to intervene in the case, over petitioner's
opposition, upon the allegations that intervention was
necessary for the complete protection of their rights and
that their "survival and very existence is threatened by the
unregulated proliferation of film piracy." The Intervenors
were thereafter allowed to file their Comment in
Intervention.
The rationale behind the enactment of the DECREE, is
set out in its preambular clauses as follows:
1. WHEREAS, the proliferation and unregulated
circulation of videograms including, among others,
videotapes, discs, cassettes or any technical
improvement or variation thereof, have greatly prejudiced
the operations of moviehouses and theaters, and have
caused a sharp decline in theatrical attendance by at
least forty percent (40%) and a tremendous drop in the
collection of sales, contractor's specific, amusement and
other taxes, thereby resulting in substantial losses
estimated at P450 Million annually in government
revenues;
2. WHEREAS, videogram(s) establishments collectively
earn around P600 Million per annum from rentals, sales
and disposition of videograms, and such earnings have
not been subjected to tax, thereby depriving the
Government of approximately P180 Million in taxes each
year;
3. WHEREAS, the unregulated activities of videogram
establishments have also affected the viability of the
movie industry, particularly the more than 1,200 movie
houses and theaters throughout the country, and
occasioned industry-wide displacement and
unemployment due to the shutdown of numerous
moviehouses and theaters;
4. "WHEREAS, in order to ensure national economic
recovery, it is imperative for the Government to create an
environment conducive to growth and development of all
business industries, including the movie industry which
has an accumulated investment of about P3 Billion;
5. WHEREAS, proper taxation of the activities of
videogram establishments will not only alleviate the dire
financial condition of the movie industry upon which more
than 75,000 families and 500,000 workers depend for
their livelihood, but also provide an additional source of
revenue for the Government, and at the same time
rationalize the heretofore uncontrolled distribution of
videograms;
6. WHEREAS, the rampant and unregulated showing of
obscene videogram features constitutes a clear and
present danger to the moral and spiritual well-being of the
youth, and impairs the mandate of the Constitution for the
State to support the rearing of the youth for civic
efficiency and the development of moral character and
promote their physical, intellectual, and social well-being;
7. WHEREAS, civic-minded citizens and groups have
called for remedial measures to curb these blatant
malpractices which have flaunted our censorship and
copyright laws;
8. WHEREAS, in the face of these grave emergencies
corroding the moral values of the people and betraying
the national economic recovery program, bold emergency
measures must be adopted with dispatch; ... (Numbering
of paragraphs supplied).
Petitioner's attack on the constitutionality of the DECREE
rests on the following grounds:
1. Section 10 thereof, which imposes a tax of 30% on the
gross receipts payable to the local government is a
RIDER and the same is not germane to the subject
matter thereof;
2. The tax imposed is harsh, confiscatory, oppressive
and/or in unlawful restraint of trade in violation of the due
process clause of the Constitution;
3. There is no factual nor legal basis for the exercise by
the President of the vast powers conferred upon him by
Amendment No. 6;
4. There is undue delegation of power and authority;
5. The Decree is an ex-post facto law; and
6. There is over regulation of the video industry as if it
were a nuisance, which it is not.
We shall consider the foregoing objections in seriatim.
1. The Constitutional requirement that "every bill shall
embrace only one subject which shall be expressed in the
title thereof" is sufficiently complied with if the title be
comprehensive enough to include the general purpose
which a statute seeks to achieve. It is not necessary that
the title express each and every end that the statute
wishes to accomplish. The requirement is satisfied if all
the parts of the statute are related, and are germane to
the subject matter expressed in the title, or as long as
they are not inconsistent with or foreign to the general
subject and title. An act having a single general subject,
indicated in the title, may contain any number of
provisions, no matter how diverse they may be, so long
as they are not inconsistent with or foreign to the general
subject, and may be considered in furtherance of such
subject by providing for the method and means of
carrying out the general object." The rule also is that the
constitutional requirement as to the title of a bill should
not be so narrowly construed as to cripple or impede the
power of legislation. It should be given practical rather
than technical construction.
Tested by the foregoing criteria, petitioner's contention
that the tax provision of the DECREE is a rider is without
merit. That section reads, inter alia:
Section 10. Tax on Sale, Lease or Disposition of
Videograms. — Notwithstanding any provision of law to
the contrary, the province shall collect a tax of thirty
percent (30%) of the purchase price or rental rate, as the
case may be, for every sale, lease or disposition of a
videogram containing a reproduction of any motion
picture or audiovisual program. Fifty percent (50%) of the
proceeds of the tax collected shall accrue to the province,
and the other fifty percent (50%) shall acrrue to the
municipality where the tax is collected; PROVIDED, That
in Metropolitan Manila, the tax shall be shared equally by
the City/Municipality and the Metropolitan Manila
Commission.
xxx xxx xxx
The foregoing provision is allied and germane to, and is
reasonably necessary for the accomplishment of, the
general object of the DECREE, which is the regulation of
the video industry through the Videogram Regulatory
Board as expressed in its title. The tax provision is not
inconsistent with, nor foreign to that general subject and
title. As a tool for regulation it is simply one of the
regulatory and control mechanisms scattered throughout
the DECREE. The express purpose of the DECREE to
include taxation of the video industry in order to regulate
and rationalize the heretofore uncontrolled distribution of
videograms is evident from Preambles 2 and 5, supra.
Those preambles explain the motives of the lawmaker in
presenting the measure. The title of the DECREE, which
is the creation of the Videogram Regulatory Board, is
comprehensive enough to include the purposes
expressed in its Preamble and reasonably covers all its
provisions. It is unnecessary to express all those
objectives in the title or that the latter be an index to the
body of the DECREE.
2. Petitioner also submits that the thirty percent (30%) tax
imposed is harsh and oppressive, confiscatory, and in
restraint of trade. However, it is beyond serious question
that a tax does not cease to be valid merely because it
regulates, discourages, or even definitely deters the
activities taxed. The power to impose taxes is one so
unlimited in force and so searching in extent, that the
courts scarcely venture to declare that it is subject to any
restrictions whatever, except such as rest in the discretion
of the authority which exercises it. In imposing a tax, the
legislature acts upon its constituents. This is, in general, a
sufficient security against erroneous and oppressive
taxation.
The tax imposed by the DECREE is not only a regulatory
but also a revenue measure prompted by the realization
that earnings of videogram establishments of around
P600 million per annum have not been subjected to tax,
thereby depriving the Government of an additional source
of revenue. It is an end-user tax, imposed on retailers for
every videogram they make available for public viewing. It
is similar to the 30% amusement tax imposed or borne by
the movie industry which the theater-owners pay to the
government, but which is passed on to the entire cost of
the admission ticket, thus shifting the tax burden on the
buying or the viewing public. It is a tax that is imposed
uniformly on all videogram operators.
The levy of the 30% tax is for a public purpose. It was
imposed primarily to answer the need for regulating the
video industry, particularly because of the rampant film
piracy, the flagrant violation of intellectual property rights,
and the proliferation of pornographic video tapes. And
while it was also an objective of the DECREE to protect
the movie industry, the tax remains a valid imposition.
The public purpose of a tax may legally exist even if the
motive which impelled the legislature to impose the tax
was to favor one industry over another.
It is inherent in the power to tax that a state be free to
select the subjects of taxation, and it has been repeatedly
held that "inequities which result from a singling out of
one particular class for taxation or exemption infringe no
constitutional limitation". Taxation has been made the
implement of the state's police power.
At bottom, the rate of tax is a matter better addressed to
the taxing legislature.
3. Petitioner argues that there was no legal nor factual
basis for the promulgation of the DECREE by the former
President under Amendment No. 6 of the 1973
Constitution providing that "whenever in the judgment of
the President ... , there exists a grave emergency or a
threat or imminence thereof, or whenever the interim
Batasang Pambansa or the regular National Assembly
fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action, he
may, in order to meet the exigency, issue the necessary
decrees, orders, or letters of instructions, which shall form
part of the law of the land."
In refutation, the Intervenors and the Solicitor General's
Office aver that the 8th "whereas" clause sufficiently
summarizes the justification in that grave emergencies
corroding the moral values of the people and betraying
the national economic recovery program necessitated
bold emergency measures to be adopted with dispatch.
Whatever the reasons "in the judgment" of the then
President, considering that the issue of the validity of the
exercise of legislative power under the said Amendment
still pends resolution in several other cases, we reserve
resolution of the question raised at the proper time.
4. Neither can it be successfully argued that the DECREE
contains an undue delegation of legislative power. The
grant in Section 11 of the DECREE of authority to the
BOARD to "solicit the direct assistance of other agencies
and units of the government and deputize, for a fixed and
limited period, the heads or personnel of such agencies
and units to perform enforcement functions for the Board"
is not a delegation of the power to legislate but merely a
conferment of authority or discretion as to its execution,
enforcement, and implementation. "The true distinction is
between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be,
and conferring authority or discretion as to its execution to
be exercised under and in pursuance of the law. The first
cannot be done; to the latter, no valid objection can be
made." Besides, in the very language of the decree, the
authority of the BOARD to solicit such assistance is for a
"fixed and limited period" with the deputized agencies
concerned being "subject to the direction and control of
the BOARD." That the grant of such authority might be
the source of graft and corruption would not stigmatize
the DECREE as unconstitutional. Should the eventuality
occur, the aggrieved parties will not be without adequate
remedy in law.
5. The DECREE is not violative of the ex post
facto principle. An ex post facto law is, among other
categories, one which "alters the legal rules of evidence,
and authorizes conviction upon less or different testimony
than the law required at the time of the commission of the
offense." It is petitioner's position that Section 15 of the
DECREE in providing that:
All videogram establishments in the Philippines are
hereby given a period of forty-five (45) days after the
effectivity of this Decree within which to register with and
secure a permit from the BOARD to engage in the
videogram business and to register with the BOARD all
their inventories of videograms, including videotapes,
discs, cassettes or other technical improvements or
variations thereof, before they could be sold, leased, or
otherwise disposed of. Thereafter any videogram found in
the possession of any person engaged in the videogram
business without the required proof of registration by the
BOARD, shall be prima facie evidence of violation of the
Decree, whether the possession of such videogram be for
private showing and/or public exhibition.
raises immediately a prima facie evidence of violation of
the DECREE when the required proof of registration of
any videogram cannot be presented and thus partakes of
the nature of an ex post facto law.
The argument is untenable. As this Court held in the
recent case of Vallarta vs. Court of Appeals, et al.
... it is now well settled that "there is no constitutional
objection to the passage of a law providing that the
presumption of innocence may be overcome by a
contrary presumption founded upon the experience of
human conduct, and enacting what evidence shall be
sufficient to overcome such presumption of innocence"
(People vs. Mingoa 92 Phil. 856 [1953] at 858-59, citing 1
COOLEY, A TREATISE ON THE CONSTITUTIONAL
LIMITATIONS, 639-641). And the "legislature may enact
that when certain facts have been proved that they shall
be prima facie evidence of the existence of the guilt of the
accused and shift the burden of proof provided there be a
rational connection between the facts proved and the
ultimate facts presumed so that the inference of the one
from proof of the others is not unreasonable and arbitrary
because of lack of connection between the two in
common experience".
Applied to the challenged provision, there is no question
that there is a rational connection between the fact
proved, which is non-registration, and the ultimate fact
presumed which is violation of the DECREE, besides the
fact that the prima facie presumption of violation of the
DECREE attaches only after a forty-five-day period
counted from its effectivity and is, therefore, neither
retrospective in character.
6. We do not share petitioner's fears that the video
industry is being over-regulated and being eased out of
existence as if it were a nuisance. Being a relatively new
industry, the need for its regulation was apparent. While
the underlying objective of the DECREE is to protect the
moribund movie industry, there is no question that public
welfare is at bottom of its enactment, considering "the
unfair competition posed by rampant film piracy; the
erosion of the moral fiber of the viewing public brought
about by the availability of unclassified and unreviewed
video tapes containing pornographic films and films with
brutally violent sequences; and losses in government
revenues due to the drop in theatrical attendance, not to
mention the fact that the activities of video establishments
are virtually untaxed since mere payment of Mayor's
permit and municipal license fees are required to engage
in business.
The enactment of the Decree since April 10, 1986 has not
brought about the "demise" of the video industry. On the
contrary, video establishments are seen to have
proliferated in many places notwithstanding the 30% tax
imposed.
In the last analysis, what petitioner basically questions is
the necessity, wisdom and expediency of the DECREE.
These considerations, however, are primarily and
exclusively a matter of legislative concern.
Only congressional power or competence, not the
wisdom of the action taken, may be the basis for
declaring a statute invalid. This is as it ought to be. The
principle of separation of powers has in the main wisely
allocated the respective authority of each department and
confined its jurisdiction to such a sphere. There would
then be intrusion not allowable under the Constitution if
on a matter left to the discretion of a coordinate branch,
the judiciary would substitute its own. If there be
adherence to the rule of law, as there ought to be, the last
offender should be courts of justice, to which rightly
litigants submit their controversy precisely to maintain
unimpaired the supremacy of legal norms and
prescriptions. The attack on the validity of the challenged
provision likewise insofar as there may be objections,
even if valid and cogent on its wisdom cannot be
sustained.
In fine, petitioner has not overcome the presumption of
validity which attaches to a challenged statute. We find no
clear violation of the Constitution which would justify us in
pronouncing Presidential Decree No. 1987 as
unconstitutional and void.
WHEREFORE, the instant Petition is hereby dismissed.
No costs.
SO ORDERED.
===========================================
G.R. No. 126102. December 4, 2000
Ortigas v. Court of Appeals
QUISUMBING, J.:
This petition seeks to reverse the decision of the Court of
Appeals, dated March 25, 1996, in CA-G.R. SP No.
39193, which nullified the writ of preliminary injunction
issued by the Regional Trial Court of Pasig City, Branch
261, in Civil Case No. 64931. It also assails the resolution
of the appellate court, dated August 13, 1996, denying
petitioners motion for reconsideration.
The facts of this case, as culled from the records, are as
follows:
On August 25, 1976, petitioner Ortigas & Company sold
to Emilia Hermoso, a parcel of land known as Lot 1, Block
21, Psd-66759, with an area of 1,508 square meters,
located in Greenhills Subdivision IV, San Juan, Metro
Manila, and covered by Transfer Certificate of Title No.
0737. The contract of sale provided that the lot:
1. (1) be used exclusivelyfor residential purposes only,
and not more than one single-family residential building
will be constructed thereon,
xxx
6. The BUYER shall not erectany sign or billboard on the
rooffor advertising purposes
xxx
11. No single-family residential building shall be
erecteduntil the building plans, specificationhave been
approved by the SELLER
xxx
14....restrictions shall run with the land and shall be
construed as real covenants until December 31, 2025
when they shall cease and terminate[1]
These and the other conditions were duly annotated on
the certificate of title issued to Emilia.
In 1981, the Metropolitan Manila Commission (now
Metropolitan Manila Development Authority) enacted
MMC Ordinance No. 81-01, also known as the
Comprehensive Zoning Area for the National Capital
Region. The ordinance reclassified as a commercial area
a portion of Ortigas Avenue from Madison to Roosevelt
Streets of Greenhills Subdivision where the lot is located.
On June 8, 1984, private respondent Ismael Mathay III
leased the lot from Emilia Hermoso and J.P. Hermoso
Realty Corp.. The lease contract did not specify the
purposes of the lease. Thereupon, private respondent
constructed a single story commercial building for
Greenhills Autohaus, Inc., a car sales company.
On January 18, 1995, petitioner filed a complaint against
Emilia Hermoso with the Regional Trial Court of Pasig,
Branch 261. Docketed as Civil Case No. 64931, the
complaint sought the demolition of the said commercial
structure for having violated the terms and conditions of
the Deed of Sale. Complainant prayed for the issuance of
a temporary restraining order and a writ of preliminary
injunction to prohibit petitioner from constructing the
commercial building and/or engaging in commercial
activity on the lot. The complaint was later amended to
implead Ismael G. Mathay III and J.P. Hermoso Realty
Corp., which has a ten percent (10%) interest in the lot.
In his answer, Mathay III denied any knowledge of the
restrictions on the use of the lot and filed a cross-claim
against the Hermosos.
On June 16, 1995, the trial court issued the writ of
preliminary injunction. On June 29, 1995, Mathay III
moved to set aside the injunctive order, but the trial court
denied the motion.
Mathay III then filed with the Court of Appeals a special
civil action for certiorari, docketed as CA-G.R. SP No.
39193, ascribing to the trial court grave abuse of
discretion in issuing the writ of preliminary injunction. He
claimed that MMC Ordinance No. 81-01 classified the
area where the lot was located as commercial area and
said ordinance must be read into the August 25, 1976
Deed of Sale as a concrete exercise of police power.
Ortigas and Company averred that inasmuch as the
restrictions on the use of the lot were duly annotated on
the title it issued to Emilia Hermoso, said restrictions must
prevail over the ordinance, specially since these
restrictions were agreed upon before the passage of
MMC Ordinance No. 81-01.
On March 25, 1996, the appellate court disposed of the
case as follows:
WHEREFORE, in light of the foregoing, the petition is
hereby GRANTED. The assailed orders are hereby
nullified and set aside.
SO ORDERED.
In finding for Mathay III, the Court of Appeals held that the
MMC Ordinance No. 81-01 effectively nullified the
restrictions allowing only residential use of the property in
question.
Ortigas seasonably moved for reconsideration, but the
appellate court denied it on August 13, 1996.
Hence, the instant petition.
In its Memorandum, petitioner now submits that the
principal issue in this case is whether respondent Court of
Appeals correctly set aside the Order dated June 16,
1995 of the trial court which issued the writ of preliminary
injunction on the sole ground that MMC Ordinance No.
81-01 nullified the building restriction imposing exclusive
residential use on the property in question. It also asserts
that Mathay III lacks legal capacity to question the validity
of conditions of the deed of sale; and he is barred by
estoppel or waiver to raise the same question like his
principals, the owners. Lastly, it avers that the appellate
court unaccountably failed to address several questions
of fact.
Principally, we must resolve the issue of whether the
Court of Appeals erred in holding that the trial court
committed grave abuse of discretion when it refused to
apply MMC Ordinance No.81-01 to Civil Case No. 64931.
But first, we must address petitioners allegation that the
Court of Appeals unaccountably failed to address
questions of fact. For basic is the rule that factual issues
may not be raised before this Court in a petition for review
and this Court is not duty-bound to consider said
questions. CA-G.R. SP No. 39193 was a special civil
action for certiorari, and the appellate court only had to
determine if the trial court committed grave abuse of
discretion amounting to want or excess of jurisdiction in
issuing the writ of preliminary injunction. Thus, unless
vital to our determination of the issue at hand, we shall
refrain from further consideration of factual questions.
Petitioner contends that the appellate court erred in
limiting its decision to the cited zoning ordinance. It avers
that a contractual right is not automatically discarded
once a claim is made that it conflicts with police
power. Petitioner submits that the restrictive clauses in
the questioned contract is not in conflict with the zoning
ordinance. For one, according to petitioner, the MMC
Ordinance No. 81-01 did not prohibit the construction of
residential buildings. Petitioner argues that even with the
zoning ordinance, the seller and buyer of the re-classified
lot can voluntarily agree to an exclusive residential use
thereof. Hence, petitioner concludes that the Court of
Appeals erred in holding that the condition imposing
exclusive residential use was effectively nullified by the
zoning ordinance.
In its turn, private respondent argues that the appellate
court correctly ruled that the trial court had acted with
grave abuse of discretion in refusing to subject the
contract to the MMC Ordinance No. 81-01. He avers that
the appellate court properly held the police power
superior to the non-impairment of contract clause in the
Constitution. He concludes that the appellate court did not
err in dissolving the writ of preliminary injunction issued
by the trial court in excess of its jurisdiction.
We note that in issuing the disputed writ of preliminary
injunction, the trial court observed that the contract of sale
was entered into in August 1976, while the zoning
ordinance was enacted only in March 1981. The trial
court reasoned that since private respondent had failed to
show that MMC Ordinance No. 81-01 had retroactive
effect, said ordinance should be given prospective
application only, citing Co vs. Intermediate Appellate
Court, 162 SCRA 390 (1988).
In general, we agree that laws are to be construed as
having only prospective operation. Lex prospicit, non
respicit. Equally settled, only laws existing at the time of
the execution of a contract are applicable thereto and not
later statutes, unless the latter are specifically intended to
have retroactive effect. A later law which enlarges,
abridges, or in any manner changes the intent of the
parties to the contract necessarily impairs the contract
itself and cannot be given retroactive effect without
violating the constitutional prohibition against impairment
of contracts.
But, the foregoing principles do admit of certain
exceptions. One involves police power. A law enacted in
the exercise of police power to regulate or govern certain
activities or transactions could be given retroactive effect
and may reasonably impair vested rights or
contracts. Police power legislation is applicable not only
to future contracts, but equally to those already in
existence. Nonimpairment of contracts or vested rights
clauses will have to yield to the superior and legitimate
exercise by the State of police power to promote the
health, morals, peace, education, good order, safety, and
general welfare of the people. Moreover, statutes in
exercise of valid police power must be read into every
contract. Noteworthy, in Sangalang vs. Intermediate
Appellate Court, we already upheld MMC Ordinance No.
81-01 as a legitimate police power measure.
The trial courts reliance on the Co vs. IAC, is
misplaced. In Co, the disputed area was agricultural and
Ordinance No. 81-01 did not specifically provide that it
shall have retroactive effect so as to discontinue all rights
previously acquired over lands located within the zone
which are neither residential nor light industrial in
nature, and stated with respect to agricultural areas
covered that the zoning ordinance should be given
prospective operation only. The area in this case involves
not agricultural but urban residential land. Ordinance No.
81-01 retroactively affected the operation of the zoning
ordinance in Greenhills by reclassifying certain locations
therein as commercial.
Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank
& Trust Co., 94 SCRA 533 (1979), the contractual
stipulations annotated on the Torrens Title, on which
Ortigas relies, must yield to the ordinance. When that
stretch of Ortigas Avenue from Roosevelt Street to
Madison Street was reclassified as a commercial zone by
the Metropolitan Manila Commission in March 1981, the
restrictions in the contract of sale between Ortigas and
Hermoso, limiting all construction on the disputed lot to
single-family residential buildings, were deemed
extinguished by the retroactive operation of the zoning
ordinance and could no longer be enforced. While our
legal system upholds the sanctity of contract so that a
contract is deemed law between the contracting
parties, nonetheless, stipulations in a contract cannot
contravene law, morals, good customs, public order, or
public policy. Otherwise such stipulations would be
deemed null and void. Respondent court correctly found
that the trial court committed in this case a grave abuse of
discretion amounting to want of or excess of jurisdiction in
refusing to treat Ordinance No. 81-01 as applicable to
Civil Case No. 64931. In resolving matters in litigation,
judges are not only duty-bound to ascertain the facts and
the applicable laws, they are also bound by their oath of
office to apply the applicable law.
As a secondary issue, petitioner contends that
respondent Mathay III, as a mere lessee of the lot in
question, is a total stranger to the deed of sale and is thus
barred from questioning the conditions of said deed.
Petitioner points out that the owners of the lot voluntarily
agreed to the restrictions on the use of the lot and do not
question the validity of these restrictions.Petitioner argues
that Mathay III as a lessee is merely an agent of the
owners, and could not override and rise above the status
of his principals. Petitioner submits that he could not have
a higher interest than those of the owners, the Hermosos,
and thus had no locus standi to file CA-G.R. SP No.
39193 to dissolve the injunctive writ issued by the RTC of
Pasig City.
For his part, private respondent argues that as the lessee
who built the commercial structure, it is he and he alone
who stands to be either benefited or injured by the results
of the judgment in Civil Case No. 64931. He avers he is
the party with real interest in the subject matter of the
action, as it would be his business, not the Hermosos,
which would suffer had not the respondent court
dissolved the writ of preliminary injunction.
A real party in interest is defined as the party who stands
to be benefited or injured by the judgment or the party
entitled to the avails of the suit. Interest within the
meaning of the rule means material interest, an interest in
issue and to be affected by the decree, as distinguished
from mere interest in the question involved, or a mere
incidental interest. By real interest is meant a present
substantial interest, as distinguished from a mere
expectancy or a future, contingent, subordinate, or
consequential interest.
Tested by the foregoing definition, private respondent in
this case is clearly a real party in interest. It is not
disputed that he is in possession of the lot pursuant to a
valid lease. He is a possessor in the concept of a holder
of the thing under Article 525 of the Civil Code. He was
impleaded as a defendant in the amended complaint in
Civil Case No. 64931. Further, what petitioner seeks to
enjoin is the building by respondent of a commercial
structure on the lot. Clearly, it is private respondents acts
which are in issue, and his interest in said issue cannot
be a mere incidental interest. In its amended complaint,
petitioner prayed for, among others, judgment ordering
the demolition of all improvements illegally built on the lot
in question. These show that it is petitioner Mathay III,
doing business as Greenhills Autohaus, Inc., and not only
the Hermosos, who will be adversely affected by the
courts decree.
Petitioner also cites the rule that a stranger to a contract
has no rights or obligations under it, and thus has no
standing to challenge its validity. But in seeking to enforce
the stipulations in the deed of sale, petitioner impleaded
private respondent as a defendant. Thus petitioner must
recognize that where a plaintiff has impleaded a party as
a defendant, he cannot subsequently question the latters
standing in court.
WHEREFORE, the instant petition is DENIED. The
challenged decision of the Court of Appeals dated March
25, 1996, as well as the assailed resolution of August 13,
1996, in CA-G.R. SP No. 39193 is AFFIRMED. Costs
against petitioner.
SO ORDERED.
===========================================
G.R. No. 157036. June 9, 2004
Chavez v. Romulo, 431 SCRA 534
SANDOVAL-GUTIERREZ, J.:
The right of individuals to bear arms is not absolute, but is
subject to regulation. The maintenance of peace and
order and the protection of the people against violence
are constitutional duties of the State, and the right to bear
arms is to be construed in connection and in harmony
with these constitutional duties.
Before us is a petition for prohibition and injunction
seeking to enjoin the implementation of the Guidelines in
the Implementation of the Ban on the Carrying of
Firearms Outside of Residence (Guidelines) issued on
January 31, 2003, by respondent Hermogenes E.
Ebdane, Jr., Chief of the Philippine National Police (PNP).
The facts are undisputed:
In January 2003, President Gloria Macapagal-Arroyo
delivered a speech before the members of the PNP
stressing the need for a nationwide gun ban in all public
places to avert the rising crime incidents. She directed the
then PNP Chief, respondent Ebdane, to suspend the
issuance of Permits to Carry Firearms Outside of
Residence (PTCFOR), thus:
THERE IS ALSO NEED TO FOCUS ON THE HIGH
PROFILE CRIMES THAT TEND TO DISTURB THE
PSYCHOLOGICAL PERIMETERS OF THE
COMMUNITY THE LATEST BEING THE KILLING OF
FORMER NPA LEADER ROLLY KINTANAR. I
UNDERSTAND WE ALREADY HAVE THE IDENTITY OF
THE CULPRIT. LET US BRING THEM TO THE BAR OF
JUSTICE.
THE NPA WILL FIND IT MORE DIFFICULT TO CARRY
OUT THEIR PLOTS IF OUR LAW ENFORCEMENT
AGENCIES CAN RID THEMSELVES OF RASCALS IN
UNIFORM, AND ALSO IF WE ENFORCE A GUN BAN IN
PUBLIC PLACES.
THUS, I AM DIRECTING THE PNP CHIEF TO
SUSPEND INDEFINITELY THE ISSUANCE OF PERMIT
TO CARRY FIREARMS IN PUBLIC PLACES. THE
ISSUANCE OF PERMITS WILL NOW BE LIMITED
ONLY TO OWNERSHIP AND POSSESSION OF GUNS
AND NOT TO CARRYING THEM IN PUBLIC
PLACES. FROM NOW ON, ONLY THE UNIFORMED
MEN IN THE MILITARY AND AUTHORIZED LAW
ENFORCEMENT OFFICERS CAN CARRY FIREARMS
IN PUBLIC PLACES, AND ONLY PURSUANT TO
EXISTING LAW.CIVILIAN OWNERS MAY NO LONGER
BRING THEIR FIREARMS OUTSIDE THEIR
RESIDENCES. THOSE WHO WANT TO USE THEIR
GUNS FOR TARGET PRACTICE WILL BE GIVEN
SPECIAL AND TEMPORARY PERMITS FROM TIME
TO TIME ONLY FOR THAT PURPOSE. AND THEY
MAY NOT LOAD THEIR GUNS WITH BULLETS UNTIL
THEY ARE IN THE PREMISES OF THE FIRING
RANGE.
WE CANNOT DISREGARD THE PARAMOUNT NEED
FOR LAW AND ORDER. JUST AS WE CANNOT BE
HEEDLESS OF OUR PEOPLES ASPIRATIONS FOR
PEACE.
Acting on President Arroyos directive, respondent
Ebdane issued the assailed Guidelines quoted as follows:
TO : All Concerned
FROM : Chief, PNP
SUBJECT : Guidelines in the Implementation of the
Ban on the Carrying of Firearms Outside of
Residence.
DATE : January 31, 2003
1. Reference: PD 1866 dated June 29, 1983 and its
Implementing Rules and Regulations.
2. General:
The possession and carrying of firearms outside of
residence is a privilege granted by the State to its citizens
for their individual protection against all threats of
lawlessness and security.
As a rule, persons who are lawful holders of firearms
(regular license, special permit, certificate of registration
or MR) are prohibited from carrying their firearms outside
of residence. However, the Chief, Philippine National
Police may, in meritorious cases as determined by him
and under conditions as he may impose, authorize such
person or persons to carry firearms outside of residence.
3. Purposes:
This Memorandum prescribes the guidelines in the
implementation of the ban on the carrying of firearms
outside of residence as provided for in the
Implementing Rules and Regulations, Presidential
Decree No. 1866, dated June 29, 1983 and as directed
by PGMA. It also prescribes the conditions, requirements
and procedures under which exemption from the ban may
be granted.
4. Specific Instructions on the Ban on the Carrying of
Firearms:
a. All PTCFOR are hereby revoked. Authorized
holders of licensed firearms covered with valid
PTCFOR may re-apply for a new PTCFOR in
accordance with the conditions hereinafter
prescribed.
b. All holders of licensed or government firearms are
hereby prohibited from carrying their firearms
outside their residence except those covered with
mission/letter orders and duty detail orders issued by
competent authority pursuant to Section 5, IRR, PD
1866, provided, that the said exception shall pertain
only to organic and regular employees.
5. The following persons may be authorized to carry
firearms outside of residence.
a. All persons whose application for a new PTCFOR has
been approved, provided, that the persons and security of
those so authorized are under actual threat, or by the
nature of their position, occupation and profession are
under imminent danger.
b. All organic and regular employees with Mission/Letter
Orders granted by their respective agencies so
authorized pursuant to Section 5, IRR, PD 1866,
provided, that such Mission/Letter Orders is valid only for
the duration of the official mission which in no case shall
be more than ten (10) days.
c. All guards covered with Duty Detail Orders granted by
their respective security agencies so authorized pursuant
to Section 4, IRR, PD 1866, provided, that such DDO
shall in no case exceed 24-hour duration.
d. Members of duly recognized Gun Clubs issued Permit
to Transport (PTT) by the PNP for purposes of practice
and competition, provided, that such firearms while in
transit must not be loaded with ammunition and secured
in an appropriate box or case detached from the person.
e. Authorized members of the Diplomatic Corps.
6. Requirements for issuance of new PTCFOR:
a. Written request by the applicant addressed to Chief,
PNP stating his qualification to possess firearm and the
reasons why he needs to carry firearm outside of
residence.
b. Xerox copy of current firearm license duly
authenticated by Records Branch, FED;
c. Proof of actual threat, the details of which should be
issued by the Chief of Police/Provincial or City Directors
and duly validated by C, RIID;
d. Copy of Drug Test Clearance, duly authenticated by
the Drug Testing Center, if photocopied;
e. Copy of DI/ RIID clearance, duly authenticated by
ODI/RIID, if photocopied;
f. Copy of Neuro-Psychiatric Clearance duly
authenticated by NP Testing Center, if photocopied;
g. Copy of Certificate of Attendance to a Gun Safety
Seminar, duly validated by Chief, Operations Branch,
FED;
h. NBI Clearance;
i. Two (2) ID pictures (2 x 2) taken not earlier than one (1)
year from date of filing of application; and
j. Proof of Payment
7. Procedures:
a. Applications may be filed directly to the Office of the
PTCFOR Secretariat in Camp Crame. In the provinces,
the applications may also be submitted to the Police
Regional Offices (PROs) and Provincial/City Police
Offices (P/CPOs) for initial processing before they are
forwarded to the office of the PTCFOR Secretariat. The
processors, after ascertaining that the documentary
requirements are in order, shall issue the Order of
Payment (OP) indicating the amount of fees payable by
the applicant, who in turn shall pay the fees to the Land
Bank.
b. Applications, which are duly processed and prepared
in accordance with existing rules and regulations, shall be
forwarded to the OCPNP for approval.
c. Upon approval of the application, OCPNP will issue
PTCFOR valid for one (1) year from date of issue.
d. Applications for renewal of PTCFOR shall be
processed in accordance with the provisions of par. 6
above.
e. Application for possession and carrying of firearms by
diplomats in the Philippines shall be processed in
accordance with NHQ PNP Memo dated September 25,
2000, with Subj: Possession and Carrying of Firearms by
Diplomats in the Philippines.
8. Restrictions in the Carrying of Firearms:
a. The firearm must not be displayed or exposed to public
view, except those authorized in uniform and in the
performance of their official duties.
b. The firearm shall not be brought inside public drinking
and amusement places, and all other commercial or
public establishments.
Petitioner Francisco I. Chavez, a licensed gun owner to
whom a PTCFOR has been issued, requested the
Department of Interior and Local Government (DILG) to
reconsider the implementation of the assailed
Guidelines. However, his request was denied. Thus, he
filed the present petition impleading public respondents
Ebdane, as Chief of PNP; Alberto G. Romulo, as
Executive Secretary; and Gerry L. Barias, as Chief of the
PNP-Firearms and Explosives Division. He anchored his
petition on the following grounds:
I CLAUSE OF THE CONSTITUTION BECAUSE:
THE PRESIDENT HAS NO POWER OR
AUTHORITY MUCH LESS BY A MERE SPEECH TO
ALTER, MODIFY OR AMEND THE LAW ON FIREARMS
BY IMPOSING A GUN BAN AND CANCELING
EXISTING PERMITS FOR GUNS TO BE CARRIED
OUTSIDE RESIDENCES.
II
OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE
ON THE GUN BAN; THE PRESIDENTIAL SPEECH
NEVER INVOKED POLICE POWER TO JUSTIFY THE
GUN BAN; THE PRESIDENTS VERBAL DECLARATION
ON GUN BAN VIOLATED THE PEOPLES RIGHT TO
PROTECT LIFE AND THEIR PROPERTY RIGHT TO
CARRY FIREARMS.
III
THE PNP CHIEF HAS NO POWER OR AUTHORITY TO
ISSUE THE QUESTIONED GUIDELINES BECAUSE:
1) THERE IS NO LAW, STATUTE OR EXECUTIVE
ORDER WHICH GRANTS THE PNP CHIEF THE
AUTHORITY TO PROMULGATE THE PNP
GUIDELINES.
2) THE IMPLEMENTING RULES AND REGULATIONS
OF PD 1866 CANNOT BE THE SUBJECT OF ANOTHER
SET OF IMPLEMENTING GUIDELINES.
3) THE PRESIDENTS SPEECH CANNOT BE A BASIS
FOR THE PROMULGATION OF IMPLEMENTNG
GUIDELINES ON THE GUN BAN.
IV
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES
IMPLEMENT PD 1866, AND THE AMENDMENTS
THERETO, THE PNP CHIEF STILL HAS NO POWER
OR AUTHORITY TO ISSUE THE SAME BECAUSE
1) PER SEC 6, RA 8294, WHICH AMENDS PD 1866,
THE IRR SHALL BE PROMULGATED JOINTLY BY THE
DOJ AND THE DILG.
2) SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE
PROMULGATED BY THE CHIEF OF THE PHILIPPINE
CONSTABULARY.
V
THE PNP GUIDELINES VIOLATE THE DUE PROCESS
1) THE RIGHT TO OWN AND CARRY A FIREARM IS
NECESSARILY INTERTWINED WITH THE PEOPLES
INHERENT RIGHT TO LIFE AND TO PROTECT LIFE.
THUS, THE PNP GUIDELINES DEPRIVE PETITIONER
OF THIS RIGHT WITHOUT DUE PROCESS OF LAW
FOR:
A) THE PNP GUIDELINES DEPRIVE PETITIONER OF
HIS MOST POTENT, IF NOT HIS ONLY, MEANS TO
DEFEND HIMSELF.
B) THE QUESTIONED GUIDELINES STRIPPED
PETITIONER OF HIS MEANS OF PROTECTION
AGAINST CRIME DESPITE THE FACT THAT THE
STATE COULD NOT POSSIBLY PROTECT ITS
CITIZENS DUE TO THE INADEQUACY AND
INEFFICIENCY OF THE POLICE FORCE.
2) THE OWNESHIP AND CARRYING OF FIREARMS
ARE CONSTITUTIONALLY PROTECTED PROPERTY
RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT
DUE PROCESS OF LAW AND WITHOUT JUST CAUSE.
VI
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES
WERE ISSUED IN THE EXERCISE OF POLICE
POWER, THE SAME IS AN INVALID EXERCISE
THEREOF SINCE THE MEANS USED THEREFOR ARE
UNREASONABLE AND UNNCESSARY FOR THE
ACCOMPLISHMENT OF ITS PURPOSE TO DETER
AND PREVENT CRIME THEREBY BECOMING
UNDULY OPPRESSIVE TO LAW-ABIDING GUN-
OWNERS.
VII
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE
AND CONFISCATORY SINCE IT REVOKED ALL
EXISTING PERMITS TO CARRY WITHOUT,
HOWEVER, REFUNDING THE PAYMENT THE PNP
RECEIVED FROM THOSE WHO ALREADY PAID
THEREFOR.
VIII
THE PNP GUIDELINES VIOLATE THE EQUAL
PROTECTION CLAUSE OF THE CONSTITUTION
BECAUSE THEY ARE DIRECTED AT AND
OPPRESSIVE ONLY TO LAW-ABIDING GUN OWNERS
WHILE LEAVING OTHER GUN-OWNERS THE
LAWBREAKERS (KIDNAPPERS, ROBBERS, HOLD-
UPPERS, MNLF, MILF, ABU SAYYAF COLLECTIVELY,
AND NPA) UNTOUCHED.
IX
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE
AND UNFAIR BECAUSE THEY WERE IMPLEMENTED
LONG BEFORE THEY WERE PUBLISHED.
X
THE PNP GUIDELINES ARE EFFECTIVELY AN EX
POST FACTO LAW SINCE THEY APPLY
RETROACTIVELY AND PUNISH ALL THOSE WHO
WERE ALREADY GRANTED PERMITS TO CARRY
OUTSIDE OF RESIDENCE LONG BEFORE THEIR
PROMULGATION.
Petitioners submissions may be synthesized into five (5)
major issues:
First, whether respondent Ebdane is authorized to issue
the assailed Guidelines;
Second, whether the citizens right to bear arms is a
constitutional right?;
Third, whether the revocation of petitioners PTCFOR
pursuant to the assailed Guidelines is a violation of his
right to property?;
Fourth, whether the issuance of the assailed Guidelines is
a valid exercise of police power?; and
Fifth, whether the assailed Guidelines constitute an ex
post facto law?
The Solicitor General seeks the dismissal of the petition
pursuant to the doctrine of hierarchy of
courts. Nonetheless, in refutation of petitioners
arguments, he contends that: (1) the PNP Chief is
authorized to issue the assailed Guidelines; (2) petitioner
does not have a constitutional right to own and carry
firearms; (3) the assailed Guidelines do not violate the
due process clause of the Constitution; and (4) the
assailed Guidelines do not constitute an ex post
facto law.
Initially, we must resolve the procedural barrier.
On the alleged breach of the doctrine of hierarchy of
courts, suffice it to say that the doctrine is not an iron-clad
dictum. In several instances where this Court was
confronted with cases of national interest and of serious
implications, it never hesitated to set aside the rule and
proceed with the judicial determination of the cases. The
case at bar is of similar import as it involves the citizens
right to bear arms.
I
Authority of the PNP Chief
Relying on the principle of separation of powers,
petitioner argues that only Congress can withhold his
right to bear arms. In revoking all existing PTCFOR,
President Arroyo and respondent Ebdane transgressed
the settled principle and arrogated upon themselves a
power they do not possess the legislative power.
We are not persuaded.
It is true that under our constitutional system, the powers
of government are distributed among three coordinate
and substantially independent departments: the
legislative, the executive and the judiciary. Each has
exclusive cognizance of the matters within its jurisdiction
and is supreme within its own sphere.
Pertinently, the power to make laws the legislative power
is vested in Congress. Congress may not escape its
duties and responsibilities by delegating that power to any
other body or authority. Any attempt to abdicate the
power is unconstitutional and void, on the principle
that delegata potestas non potest delegari delegated
power may not be delegated.
The rule which forbids the delegation of legislative
power, however, is not absolute and inflexible. It
admits of exceptions. An exception sanctioned by
immemorial practice permits the legislative body to
delegate its licensing power to certain persons, municipal
corporations, towns, boards, councils, commissions,
commissioners, auditors, bureaus and directors. Such
licensing power includes the power to promulgate
necessary rules and regulations.
The evolution of our laws on firearms shows that since
the early days of our Republic, the legislatures tendency
was always towards the delegation of power. Act No.
1780, delegated upon the Governor-General (now the
President) the authority (1) to approve or disapprove
applications of any person for a license to deal in firearms
or to possess the same for personal protection, hunting
and other lawful purposes; and (2) to revoke such license
any time. Further, it authorized him to issue regulations
which he may deem necessary for the proper
enforcement of the Act. With the enactment of Act No.
2711, the Revised Administrative Code of 1917, the laws
on firearms were integrated. The Act retained the
authority of the Governor General provided in Act No.
1780. Subsequently, the growing complexity in the Office
of the Governor-General resulted in the delegation of his
authority to the Chief of the Constabulary. On January 21,
1919, Acting Governor-General Charles E. Yeater issued
Executive Order No. 8 authorizing and directing the Chief
of Constabulary to act on his behalf in approving and
disapproving applications for personal, special and
hunting licenses. This was followed by Executive Order
No. 61designating the Philippine Constabulary (PC) as
the government custodian of all firearms, ammunitions
and explosives. Executive Order No. 215, issued by
President Diosdado Macapagal on December 3, 1965,
granted the Chief of the Constabulary, not only the
authority to approve or disapprove applications for
personal, special and hunting license, but also the
authority to revoke the same. With the foregoing
developments, it is accurate to say that the Chief of the
Constabulary had exercised the authority for a long
time. In fact, subsequent issuances such as Sections 2
and 3 of the Implementing Rules and Regulations of
Presidential Decree No. 1866 perpetuate such authority
of the Chief of the Constabulary. Section 2 specifically
provides that any person or entity desiring to possess any
firearm shall first secure the necessary
permit/license/authority from the Chief of the
Constabulary. With regard to the issuance of PTCFOR,
Section 3 imparts: The Chief of Constabulary may, in
meritorious cases as determined by him and under
such conditions as he may impose, authorize lawful
holders of firearms to carry them outside of
residence. These provisions are issued pursuant to the
general power granted by P.D. No. 1866 empowering
him to promulgate rules and regulations for the
effective implementation of the decree. At this
juncture, it bears emphasis that P.D. No. 1866 is the chief
law governing possession of firearms in the Philippines
and that it was issued by President Ferdinand E. Marcos
in the exercise of his legislative power.
In an attempt to evade the application of the above-
mentioned laws and regulations, petitioner argues that
the Chief of the PNP is not the same as the Chief of the
Constabulary, the PC being a mere unit or component of
the newly established PNP. He contends further that
Republic Act No. 8294 amended P.D. No. 1866 such that
the authority to issue rules and regulations regarding
firearms is now jointly vested in the Department of Justice
and the DILG, not the Chief of the Constabulary.
Petitioners submission is bereft of merit.
By virtue of Republic Act No. 6975, the Philippine
National Police (PNP) absorbed the Philippine
Constabulary (PC). Consequently, the PNP Chief
succeeded the Chief of the Constabulary and, therefore,
assumed the latters licensing authority. Section 24
thereof specifies, as one of PNPs powers, the
issuance of licenses for the possession of firearms
and explosives in accordance with law. This is in
conjunction with the PNP Chiefs power to issue detailed
implementing policies and instructions on such matters as
may be necessary to effectively carry out the functions,
powers and duties of the PNP.
Contrary to petitioners contention, R.A. No. 8294 does
not divest the Chief of the Constabulary (now the PNP
Chief) of his authority to promulgate rules and regulations
for the effective implementation of P.D. No. 1866. For
one, R.A. No. 8294 did not repeal entirely P.D. No. 1866.
It merely provides for the reduction of penalties for illegal
possession of firearms. Thus, the provision of P.D. No.
1866 granting to the Chief of the Constabulary the
authority to issue rules and regulations regarding firearms
remains effective. Correspondingly, the Implementing
Rules and Regulations dated September 15, 1997 jointly
issued by the Department of Justice and the DILG
pursuant to Section 6 of R.A. No. 8294 deal only with the
automatic review, by the Director of the Bureau of
Corrections or the Warden of a provincial or city jail, of
the records of convicts for violations of P.D. No.
1866. The Rules seek to give effect to the beneficent
provisions of R.A. No. 8294, thereby ensuring the early
release and reintegration of the convicts into the
community.
Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize
the PNP Chief to issue the assailed guidelines.
Corollarily, petitioner disputes President Arroyos
declaration of a nationwide gun ban, arguing that she has
no authority to alter, modify, or amend the law on firearms
through a mere speech.
First, it must be emphasized that President Arroyos
speech was just an expression of her policy and a
directive to her subordinate. It cannot, therefore, be
argued that President Arroyo enacted a law through a
mere speech.
Second, at the apex of the entire executive officialdom is
the President. Section 17, Article VII of the Constitution
specifies his power as Chief Executive, thus: The
President shall have control of all the executive
departments, bureaus and offices. He shall ensure
that the laws be faithfully executed. As Chief
Executive, President Arroyo holds the steering wheel that
controls the course of her government. She lays down
policies in the execution of her plans and
programs. Whatever policy she chooses, she has her
subordinates to implement them. In short, she has the
power of control. Whenever a specific function is
entrusted by law or regulation to her subordinate, she
may act directly or merely direct the performance of a
duty. Thus, when President Arroyo directed respondent
Ebdane to suspend the issuance of PTCFOR, she was
just directing a subordinate to perform an assigned
duty. Such act is well within the prerogative of her office.
II
Right to bear arms: Constitutional or Statutory?
Petitioner earnestly contends that his right to bear arms is
a constitutionally-protected right. This, he mainly anchors
on various American authorities. We therefore find it
imperative to determine the nature of the right in light of
American jurisprudence.
The bearing of arms is a tradition deeply rooted in the
English and American society. It antedates not only the
American Constitution but also the discovery of firearms.
A provision commonly invoked by the American people to
justify their possession of firearms is the Second
Amendment of the Constitution of the United States of
America, which reads:
A well regulated militia, being necessary for the security
of free state, the right of the people to keep and bear
Arms, shall not be infringed.
An examination of the historical background of the
foregoing provision shows that it pertains to the
citizens collective right to take arms in defense of the
State, not to the citizens individual right to own and
possess arms. The setting under which the right was
contemplated has a profound connection with the keeping
and maintenance of a militia or an armed citizenry. That
this is how the right was construed is evident in early
American cases.
The first case involving the interpretation of the Second
Amendment that reached the United States Supreme
Court is United States vs. Miller. Here, the indictment
charged the defendants with transporting an unregistered
Stevens shotgun without the required stamped written
order, contrary to the National Firearms Act. The
defendants filed a demurrer challenging the facial validity
of the indictment on the ground that the National Firearms
Act offends the inhibition of the Second Amendment. The
District Court sustained the demurrer and quashed the
indictment. On appeal, the Supreme Court interpreted
the right to bear arms under the Second Amendment
as referring to the collective right of those
comprising the Militia a body of citizens enrolled for
military discipline. It does not pertain to the individual
right of citizen to bear arm. Miller expresses its holding
as follows:
In the absence of any evidence tending to show that
possession or use of a shotgun having a barrel of less
than eighteen inches in length at this time has some
reasonable relationship to the preservation or
efficiency of a well regulated militia, we cannot say
that the Second Amendment guarantees the right to
keep and bear such an instrument. Certainly it is not
within judicial notice that this weapon is any part of the
ordinary military equipment or that its use could contribute
to the common defense.
The same doctrine was re-echoed in Cases vs. United
States. Here, the Circuit Court of Appeals held that
the Federal Firearms Act, as applied to appellant, does
not conflict with the Second Amendment. It ruled that:
While [appellants] weapon may be capable of military
use, or while at least familiarity with it might be regarded
as of value in training a person to use a comparable
weapon of military type and caliber, still there is no
evidence that the appellant was or ever had been a
member of any military organization or that his use of
the weapon under the circumstances disclosed was
in preparation for a military career. In fact, the only
inference possible is that the appellant at the time
charged in the indictment was in possession of,
transporting, and using the firearm and ammunition
purely and simply on a frolic of his own and without
any thought or intention of contributing to the
efficiency of the well regulated militia which the
Second amendment was designed to foster as
necessary to the security of a free state.
With the foregoing jurisprudence, it is erroneous to
assume that the US Constitution grants upon the
American people the right to bear arms. In a more explicit
language, the United States vs. Cruikshank decreed: The
right of the people to keep and bear arms is not a
right granted by the Constitution. Neither is it in any
way dependent upon that instrument. Likewise,
in People vs. Persce, the Court of Appeals said: Neither
is there any constitutional provision securing the right to
bear arms which prohibits legislation with reference to
such weapons as are specifically before us for
consideration. The provision in the Constitution of the
United States that the right of the people to keep and
bear arms shall not be infringed is not designed to
control legislation by the state.
With more reason, the right to bear arms cannot be
classified as fundamental under the 1987 Philippine
Constitution. Our Constitution contains no provision
similar to the Second Amendment, as we aptly observed
in the early case of United States vs. Villareal:
The only contention of counsel which would appear to
necessitate comment is the claim that the statute
penalizing the carrying of concealed weapons and
prohibiting the keeping and the use of firearms without a
license, is in violation of the provisions of section 5 of the
Philippine Bill of Rights.
Counsel does not expressly rely upon the prohibition
in the United States Constitution against the
infringement of the right of the people of the United
States to keep and bear arms (U. S. Constitution,
amendment 2), which is not included in the Philippine
Bill. But it may be well, in passing, to point out that in
no event could this constitutional guaranty have any
bearing on the case at bar, not only because it has
not been expressly extended to the Philippine
Islands, but also because it has been uniformly held
that both this and similar provisions in State
constitutions apply only to arms used in civilized
warfare (see cases cited in 40 Cyc., 853, note 18);
x x x.
Evidently, possession of firearms by the citizens in
the Philippines is the exception, not the rule. The right
to bear arms is a mere statutory privilege, not a
constitutional right. It is a mere statutory creation. What
then are the laws that grant such right to the
Filipinos? The first real firearm law is Act No. 1780
enacted by the Philippine Commission on October 12,
1907. It was passed to regulate the importation,
acquisition, possession, use and transfer of
firearms. Section 9 thereof provides:
SECTION 9. Any person desiring to possess one or
more firearms for personal protection, or for use in
hunting or other lawful purposes only, and
ammunition therefor, shall make application for a
license to possess such firearm or firearms or
ammunition as hereinafter provided. Upon making
such application, and before receiving the license, the
applicant shall make a cash deposit in the postal savings
bank in the sum of one hundred pesos for each firearm
for which the license is to be issued, or in lieu thereof he
may give a bond in such form as the Governor-General
may prescribe, payable to the Government of the
Philippine Islands, in the sum of two hundred pesos for
each such firearm: PROVIDED, HOWEVER, That
persons who are actually members of gun clubs, duly
formed and organized at the time of the passage of this
Act, who at such time have a license to possess firearms,
shall not be required to make the deposit or give the bond
prescribed by this section, and the bond duly executed by
such person in accordance with existing law shall
continue to be security for the safekeeping of such arms.
The foregoing provision was restated in Section 887 of
Act No. 2711 that integrated the firearm laws. Thereafter,
President Ferdinand E. Marcos issued P.D. No. 1866. It
codified the laws on illegal possession, manufacture,
dealing in, acquisition of firearms, ammunitions or
explosives and imposed stiffer penalties for their violation.
R.A. No. 8294 amended some of the provisions of P.D.
No. 1866 by reducing the imposable penalties. Being a
mere statutory creation, the right to bear arms cannot be
considered an inalienable or absolute right.
III
Vested Property Right
Section 1, Article III of the Constitution provides that no
person shall be deprived of life, liberty or property without
due process of law. Petitioner invokes this provision,
asserting that the revocation of his PTCFOR pursuant to
the assailed Guidelines deprived him of his vested
property right without due process of law and in violation
of the equal protection of law.
Petitioner cannot find solace to the above-quoted
Constitutional provision.
In evaluating a due process claim, the first and foremost
consideration must be whether life, liberty or property
interest exists. The bulk of jurisprudence is that a license
authorizing a person to enjoy a certain privilege is neither
a property nor property right. In Tan vs. The Director of
Forestry, we ruled that a license is merely a permit or
privilege to do what otherwise would be unlawful, and is
not a contract between the authority granting it and the
person to whom it is granted; neither is it property or a
property right, nor does it create a vested right. In a
more emphatic pronouncement, we held in Oposa vs.
Factoran, Jr. that:
Needless to say, all licenses may thus be revoked or
rescinded by executive action. It is not a contract,
property or a property right protected by the due
process clause of the Constitution.
Petitioner, in arguing that his PTCFOR is a
constitutionally protected property right, relied heavily
on Bell vs. Burson wherein the U.S. Supreme Court ruled
that once a license is issued, continued possession may
become essential in the pursuit of livelihood. Suspension
of issued licenses thus involves state action that
adjudicates important interest of the licensees.
Petitioners reliance on Bell is misplaced. This case
involves a drivers license, not a license to bear arms. The
catena of American jurisprudence involving license to
bear arms is perfectly in accord with our ruling that a
PTCFOR is neither a property nor a property
right. In Erdelyi vs. OBrien, the plaintiff who was denied a
license to carry a firearm brought suit against the
defendant who was the Chief of Police of the City of
Manhattan Beach, on the ground that the denial violated
her constitutional rights to due process and equal
protection of the laws. The United States Court of
Appeals Ninth Circuit ruled that Erdelyi did not have a
property interest in obtaining a license to carry a firearm,
ratiocinating as follows:
Property interests protected by the Due Process
Clause of the Fourteenth Amendment do not arise
whenever a person has only an abstract need or
desire for, or unilateral expectation of a benefit.x x x
Rather, they arise from legitimate claims of
entitlement defined by existing rules or
understanding that stem from an independent
source, such as state law. x x x
Concealed weapons are closely regulated by the State of
California. x x x Whether the statute creates a property
interest in concealed weapons licenses depends
largely upon the extent to which the statute contains
mandatory language that restricts the discretion of
the [issuing authority] to deny licenses to applicants
who claim to meet the minimum eligibility
requirements. x x x Where state law gives the issuing
authority broad discretion to grant or deny license
application in a closely regulated field, initial
applicants do not have a property right in such
licenses protected by the Fourteenth
Amendment. See Jacobson, supra, 627 F.2d at 180
(gaming license under Nevada law);
Similar doctrine was announced in Potts vs. City of
Philadelphia, Conway vs. King, Nichols vs. County of Sta.
Clara, and Gross vs. Norton. These cases enunciated
that the test whether the statute creates a property right
or interest depends largely on the extent of discretion
granted to the issuing authority.
In our jurisdiction, the PNP Chief is granted broad
discretion in the issuance of PTCFOR. This is evident
from the tenor of the Implementing Rules and Regulations
of P.D. No. 1866 which state that the Chief of
Constabulary may, in meritorious cases as determined
by him and under such conditions as he may
impose, authorize lawful holders of firearms to carry
them outside of residence. Following the American
doctrine, it is indeed logical to say that a PTCFOR does
not constitute a property right protected under our
Constitution.
Consequently, a PTCFOR, just like ordinary licenses in
other regulated fields, may be revoked any time. It does
not confer an absolute right, but only a personal privilege
to be exercised under existing restrictions, and such as
may thereafter be reasonably imposed. A licensee takes
his license subject to such conditions as the Legislature
sees fit to impose, and one of the statutory conditions of
this license is that it might be revoked by the
selectmen at their pleasure. Such a license is not a
contract, and a revocation of it does not deprive the
defendant of any property, immunity, or privilege
within the meaning of these words in the Declaration
of Rights. The US Supreme Court, in Doyle vs.
Continental Ins. Co, held: The correlative power to
revoke or recall a permission is a necessary
consequence of the main power. A mere license by
the State is always revocable.
The foregoing jurisprudence has been resonating in the
Philippines as early as 1908. Thus, in The Government of
the Philippine Islands vs. Amechazurra we ruled:
x x x no private person is bound to keep arms. Whether
he does or not is entirely optional with himself, but if, for
his own convenience or pleasure, he desires to possess
arms, he must do so upon such terms as the Government
sees fit to impose, for the right to keep and bear arms is
not secured to him by law. The Government can impose
upon him such terms as it pleases. If he is not satisfied
with the terms imposed, he should decline to accept
them, but, if for the purpose of securing possession of the
arms he does agree to such conditions, he must fulfill
them.
IV
Police Power
At any rate, assuming that petitioners PTCFOR
constitutes a property right protected by the Constitution,
the same cannot be considered as absolute as to be
placed beyond the reach of the States police power. All
property in the state is held subject to its general
regulations, necessary to the common good and general
welfare.
In a number of cases, we laid down the test to determine
the validity of a police measure, thus:
(1) The interests of the public generally, as distinguished
from those of a particular class, require the exercise of
the police power; and
(2) The means employed are reasonably necessary for
the accomplishment of the purpose and not unduly
oppressive upon individuals.
Deeper reflection will reveal that the test merely reiterates
the essence of the constitutional guarantees of
substantive due process, equal protection, and non-
impairment of property rights.
It is apparent from the assailed Guidelines that the basis
for its issuance was the need for peace and order in the
society. Owing to the proliferation of crimes, particularly
those committed by the New Peoples Army (NPA), which
tends to disturb the peace of the community, President
Arroyo deemed it best to impose a nationwide gun
ban. Undeniably, the motivating factor in the issuance of
the assailed Guidelines is the interest of the public in
general.
The only question that can then arise is whether the
means employed are appropriate and reasonably
necessary for the accomplishment of the purpose and are
not unduly oppressive.In the instant case, the assailed
Guidelines do not entirely prohibit possession of
firearms. What they proscribe is merely the carrying of
firearms outside of residence. However, those who wish
to carry their firearms outside of their residences may re-
apply for a new PTCFOR. This we believe is a
reasonable regulation. If the carrying of firearms is
regulated, necessarily, crime incidents will be
curtailed. Criminals carry their weapon to hunt for their
victims; they do not wait in the comfort of their
homes. With the revocation of all PTCFOR, it would be
difficult for criminals to roam around with their guns. On
the other hand, it would be easier for the PNP to
apprehend them.
Notably, laws regulating the acquisition or possession of
guns have frequently been upheld as reasonable exercise
of the police power. In State vs. Reams, it was held that
the legislature may regulate the right to bear arms in a
manner conducive to the public peace. With the
promotion of public peace as its objective and the
revocation of all PTCFOR as the means, we are
convinced that the issuance of the assailed Guidelines
constitutes a reasonable exercise of police power. The
ruling in United States vs. Villareal, is relevant, thus:
We think there can be no question as to the
reasonableness of a statutory regulation prohibiting the
carrying of concealed weapons as a police measure well
calculated to restrict the too frequent resort to such
weapons in moments of anger and excitement. We do not
doubt that the strict enforcement of such a regulation
would tend to increase the security of life and limb, and to
suppress crime and lawlessness, in any community
wherein the practice of carrying concealed weapons
prevails, and this without being unduly oppressive upon
the individual owners of these weapons. It follows that its
enactment by the legislature is a proper and legitimate
exercise of the police power of the state.
V 2, 1996. The notice reads: Court
Ex post facto law
In Mekin vs. Wolfe, an ex post facto law has been defined
as one (a) which makes an action done before the
passing of the law and which was innocent when done
criminal, and punishes such action; or (b) which
aggravates a crime or makes it greater than it was when
committed; or (c) which changes the punishment and
inflicts a greater punishment than the law annexed to the
crime when it was committed; or (d) which alters the legal
rules of evidence and receives less or different testimony
than the law required at the time of the commission of the
offense in order to convict the defendant.
We see no reason to devote much discussion on the
matter. Ex post facto law prohibits retrospectivity of penal
laws.The assailed Guidelines cannot be considered as
an ex post facto law because it is prospective in its
application. Contrary to petitioners argument, it would not
result in the punishment of acts previously committed.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
===========================================
G.R. No. 135962. March 27, 2000
METROPOLITAN MANILA DEVELOPMENT
AUTHORITY v. BEL-AIR VILLAGE ASSOCIATION
INC.
PUNO, J.:
Not infrequently, the government is tempted to take legal
shortcuts to solve urgent problems of the people. But
even when government is armed with the best of
intention, we cannot allow it to run roughshod over the
rule of law. Again, we let the hammer fall and fall hard on
the illegal attempt of the MMDA to open for public use a
private road in a private subdivision. While we hold that
the general welfare should be promoted, we stress that it
should not be achieved at the expense of the rule of
law. h Y
Petitioner MMDA is a government agency tasked with the
delivery of basic services in Metro Manila. Respondent
Bel-Air Village Association, Inc. (BAVA) is a non-stock,
non-profit corporation whose members are homeowners
in Bel-Air Village, a private subdivision in Makati City.
Respondent BAVA is the registered owner of Neptune
Street, a road inside Bel-Air Village.
On December 30, 1995, respondent received from
petitioner, through its Chairman, a notice dated
December 22, 1995 requesting respondent to open
Neptune Street to public vehicular traffic starting January
"SUBJECT: NOTICE of the Opening of Neptune Street to
Traffic
"Dear President Lindo,
"Please be informed that pursuant to the mandate of the
MMDA law or Republic Act No. 7924 which requires the
Authority to rationalize the use of roads and/or
thoroughfares for the safe and convenient movement of
persons, Neptune Street shall be opened to vehicular
traffic effective January 2, 1996.
"In view whereof, the undersigned requests you to
voluntarily open the points of entry and exit on said street.
"Thank you for your cooperation and whatever assistance
that may be extended by your association to the MMDA
personnel who will be directing traffic in the area.
"Finally, we are furnishing you with a copy of the
handwritten instruction of the President on the matter.
"Very truly yours,
PROSPERO I. ORETA
Chairman"
On the same day, respondent was apprised that the
perimeter wall separating the subdivision from the
adjacent Kalayaan Avenue would be
demolished. Sppedsc
On January 2, 1996, respondent instituted against
petitioner before the Regional Trial Court, Branch 136,
Makati City, Civil Case No. 96-001 for injunction.
Respondent prayed for the issuance of a temporary
restraining order and preliminary injunction enjoining the
opening of Neptune Street and prohibiting the demolition
of the perimeter wall. The trial court issued a temporary
restraining order the following day.
On January 23, 1996, after due hearing, the trial court
denied issuance of a preliminary injunction. Respondent
questioned the denial before the Court of Appeals in CA-
G.R. SP No. 39549. The appellate court conducted an
ocular inspection of Neptune Street and on February 13,
1996, it issued a writ of preliminary injunction enjoining
the implementation of the MMDAs proposed action.
On January 28, 1997, the appellate court rendered a
Decision on the merits of the case finding that the MMDA
has no authority to order the opening of Neptune Street, a
private subdivision road and cause the demolition of its
perimeter walls. It held that the authority is lodged in the
City Council of Makati by ordinance. The decision
disposed of as follows: Jurissc
"WHEREFORE, the Petition is GRANTED; the challenged
Order dated January 23, 1995, in Civil Case No. 96-001,
is SET ASIDE and the Writ of Preliminary Injunction
issued on February 13, 1996 is hereby made permanent.
"For want of sustainable substantiation, the Motion to Cite
Roberto L. del Rosario in contempt is denied.
"No pronouncement as to costs.
"SO ORDERED."
The Motion for Reconsideration of the decision was
denied on September 28, 1998. Hence, this
recourse. Jksm
Petitioner MMDA raises the following questions:
"I
HAS THE METROPOLITAN MANILA DEVELOPMENT
AUTHORITY (MMDA) THE MANDATE TO OPEN
NEPTUNE STREET TO PUBLIC TRAFFIC PURSUANT
TO ITS REGULATORY AND POLICE POWERS?
II
IS THE PASSAGE OF AN ORDINANCE A CONDITION
PRECEDENT BEFORE THE MMDA MAY ORDER THE
OPENING OF SUBDIVISION ROADS TO PUBLIC
TRAFFIC?
III
IS RESPONDENT BEL-AIR VILLAGE ASSOCIATION,
INC. ESTOPPED FROM DENYING OR ASSAILING THE
AUTHORITY OF THE MMDA TO OPEN THE SUBJECT
STREET? Jlexj
V A local government is a "political subdivision of a nation
WAS RESPONDENT DEPRIVED OF DUE PROCESS
DESPITE THE SEVERAL MEETINGS HELD BETWEEN
MMDA AND THE AFFECTED BEL-AIR RESIDENTS
AND BAVA OFFICERS?
V
HAS RESPONDENT COME TO COURT WITH
UNCLEAN HANDS?"
Neptune Street is owned by respondent BAVA. It is a
private road inside Bel-Air Village, a private residential
subdivision in the heart of the financial and commercial
district of Makati City. It runs parallel to Kalayaan Avenue,
a national road open to the general public. Dividing the
two (2) streets is a concrete perimeter wall approximately
fifteen (15) feet high. The western end of Neptune Street
intersects Nicanor Garcia, formerly Reposo Street, a
subdivision road open to public vehicular traffic, while its
eastern end intersects Makati Avenue, a national road.
Both ends of Neptune Street are guarded by iron
gates. Edp mis
Petitioner MMDA claims that it has the authority to open
Neptune Street to public traffic because it is an agent of
the state endowed with police power in the delivery of
basic services in Metro Manila. One of these basic
services is traffic management which involves the
regulation of the use of thoroughfares to insure the safety,
convenience and welfare of the general public. It is
alleged that the police power of MMDA was affirmed by
this Court in the consolidated cases of Sangalang v.
Intermediate Appellate Court. From the premise that it
has police power, it is now urged that there is no need for
the City of Makati to enact an ordinance opening Neptune
street to the public.
Police power is an inherent attribute of sovereignty. It has
been defined as the power vested by the Constitution in
the legislature to make, ordain, and establish all manner
of wholesome and reasonable laws, statutes and
ordinances, either with penalties or without, not repugnant
to the Constitution, as they shall judge to be for the good
and welfare of the commonwealth, and for the subjects of
the same. The power is plenary and its scope is vast and
pervasive, reaching and justifying measures for public
health, public safety, public morals, and the general
welfare.
It bears stressing that police power is lodged primarily in
the National Legislature. It cannot be exercised by any
group or body of individuals not possessing legislative
power. The National Legislature, however, may delegate
this power to the President and administrative boards as
well as the lawmaking bodies of municipal corporations or
local government units. Once delegated, the agents can
exercise only such legislative powers as are conferred on
them by the national lawmaking body.
or state which is constituted by law and has substantial
control of local affairs." The Local Government Code of
1991 defines a local government unit as a "body politic
and corporate"-- one endowed with powers as a political
subdivision of the National Government and as a
corporate entity representing the inhabitants of its
territory. Local government units are the provinces, cities,
municipalities and barangays. They are also the territorial
and political subdivisions of the state.
Our Congress delegated police power to the local
government units in the Local Government Code of
1991. This delegation is found in Section 16 of the same
Code, known as the general welfare clause, viz: Chief
"Sec. 16. General Welfare.Every local government unit
shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to
the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units
shall ensure and support, among other things, the
preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment
among their residents, maintain peace and order, and
preserve the comfort and convenience of their
inhabitants."
Local government units exercise police power
through their respective legislative bodies. The
legislative body of the provincial government is
the sangguniang panlalawigan, that of the city
government is the sangguniang panlungsod, that of the
municipal government is the sangguniang bayan, and
that of the barangay is the sangguniang barangay. The
Local Government Code of 1991 empowers
the sangguniang panlalawigan, sangguniang
panlungsod and sangguniang bayan to "enact
ordinances, approve resolutions and appropriate funds for
the general welfare of the [province, city or municipality,
as the case may be], and its inhabitants pursuant to
Section 16 of the Code and in the proper exercise of the
corporate powers of the [province, city municipality]
provided under the Code x x x." The same Code gives
the sangguniang barangay the power to "enact
ordinances as may be necessary to discharge the
responsibilities conferred upon it by law or ordinance and
to promote the general welfare of the inhabitants
thereon."
Metropolitan or Metro Manila is a body composed of
several local government units - i.e., twelve (12) cities
and five (5) municipalities, namely, the cities of Caloocan,
Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon,
Muntinlupa, Las Pinas, Marikina, Paranaque and
Valenzuela, and the municipalities of Malabon, , Navotas,
, Pateros, San Juan and Taguig. With the passage of
Republic Act (R. A.) No. 7924 in 1995, Metropolitan
Manila was declared as a "special development and
administrative region" and the Administration of
"metro-wide" basic services affecting the region
placed under "a development authority" referred to
as the MMDA.
"Metro-wide services" are those "services which have
metro-wide impact and transcend local political
boundaries or entail huge expenditures such that it would
not be viable for said services to be provided by the
individual local government units comprising Metro
Manila." There are seven (7) basic metro-wide services
and the scope of these services cover the following: (1)
development planning; (2) transport and traffic
management; (3) solid waste disposal and management;
(4) flood control and sewerage management; (5) urban
renewal, zoning and land use planning, and shelter
services; (6) health and sanitation, urban protection and
pollution control; and (7) public safety. The basic service
of transport and traffic management includes the
following: Lexjuris
"(b) Transport and traffic management which include
the formulation, coordination, and monitoring of
policies, standards, programs and projects to
rationalize the existing transport operations,
infrastructure requirements, the use of
thoroughfares, and promotion of safe and convenient
movement of persons and goods; provision for the
mass transport system and the institution of a
system to regulate road users; administration and
implementation of all traffic enforcement operations,
traffic engineering services and traffic education
programs, including the institution of a single
ticketing system in Metropolitan Manila;
In the delivery of the seven (7) basic services, the
MMDA has the following powers and functions: Esm
"Sec. 5. Functions and powers of the Metro Manila
Development Authority.The MMDA shall:
(a) Formulate, coordinate and regulate the
implementation of medium and long-term plans and
programs for the delivery of metro-wide services, land
use and physical development within Metropolitan Manila,
consistent with national development objectives and
priorities;
(b) Prepare, coordinate and regulate the implementation
of medium-term investment programs for metro-wide
services which shall indicate sources and uses of funds
for priority programs and projects, and which shall include
the packaging of projects and presentation to funding
institutions; Esmsc
(c) Undertake and manage on its own metro-wide
programs and projects for the delivery of specific services
under its jurisdiction, subject to the approval of the
Council. For this purpose, MMDA can create appropriate
project management offices;
(d) Coordinate and monitor the implementation of such
plans, programs and projects in Metro Manila; identify
bottlenecks and adopt solutions to problems of
implementation;
(e) The MMDA shall set the policies concerning traffic
in Metro Manila, and shall coordinate and regulate the
implementation of all programs and projects
concerning traffic management, specifically
pertaining to enforcement, engineering and
education. Upon request, it shall be extended
assistance and cooperation, including but not limited
to, assignment of personnel, by all other government
agencies and offices concerned;
(f) Install and administer a single ticketing system,
fix, impose and collect fines and penalties for all
kinds of violations of traffic rules and regulations,
whether moving or non-moving in nature, and
confiscate and suspend or revoke drivers licenses in
the enforcement of such traffic laws and regulations,
the provisions of RA 4136 and PD 1605 to the
contrary notwithstanding. For this purpose, the
Authority shall impose all traffic laws and regulations
in Metro Manila, through its traffic operation center,
and may deputize members of the PNP, traffic
enforcers of local government units, duly licensed
security guards, or members of non-governmental
organizations to whom may be delegated certain
authority, subject to such conditions and
requirements as the Authority may impose; and
(g) Perform other related functions required to achieve
the objectives of the MMDA, including the undertaking of
delivery of basic services to the local government units,
when deemed necessary subject to prior coordination
with and consent of the local government unit
concerned." Jurismis
The implementation of the MMDAs plans, programs and
projects is undertaken by the local government units,
national government agencies, accredited peoples
organizations, non-governmental organizations, and the
private sector as well as by the MMDA itself. For this
purpose, the MMDA has the power to enter into contracts,
memoranda of agreement and other cooperative
arrangements with these bodies for the delivery of the
required services within Metro Manila.
The governing board of the MMDA is the Metro Manila
Council. The Council is composed of the mayors of the
component 12 cities and 5 municipalities, the president of
the Metro Manila Vice-Mayors League and the president
of the Metro Manila Councilors League. The Council is
headed by a Chairman who is appointed by the President
and vested with the rank of cabinet member. As the
policy-making body of the MMDA, the Metro Manila
Council approves metro-wide plans, programs and
projects, and issues the necessary rules and regulations
for the implementation of said plans; it approves the
annual budget of the MMDA and promulgates the rules
and regulations for the delivery of basic services,
collection of service and regulatory fees, fines and
penalties. These functions are particularly enumerated as
follows: LEX
"Sec. 6. Functions of the Metro Manila Council. -
(a) The Council shall be the policy-making body of the
MMDA;
(b) It shall approve metro-wide plans, programs and
projects and issue rules and regulations deemed
necessary by the MMDA to carry out the purposes of this
Act;
(c) It may increase the rate of allowances and per diems
of the members of the Council to be effective during the
term of the succeeding Council. It shall fix the
compensation of the officers and personnel of the MMDA,
and approve the annual budget thereof for submission to
the Department of Budget and Management (DBM);
(d) It shall promulgate rules and regulations and set
policies and standards for metro-wide application
governing the delivery of basic services, prescribe and
collect service and regulatory fees, and impose and
collect fines and penalties." Jj sc
Clearly, the scope of the MMDAs function is limited to the
delivery of the seven (7) basic services. One of these is
transport and traffic management which includes the
formulation and monitoring of policies, standards and
projects to rationalize the existing transport operations,
infrastructure requirements, the use of thoroughfares and
promotion of the safe movement of persons and goods. It
also covers the mass transport system and the institution
of a system of road regulation, the administration of all
traffic enforcement operations, traffic engineering
services and traffic education programs, including the
institution of a single ticketing system in Metro Manila for
traffic violations. Under this service, the MMDA is
expressly authorized "to set the policies concerning
traffic" and "coordinate and regulate the implementation
of all traffic management programs." In addition, the
MMDA may "install and administer a single ticketing
system," fix, impose and collect fines and penalties for all
traffic violations. Ca-lrsc
It will be noted that the powers of the MMDA are limited to
the following acts: formulation, coordination, regulation,
implementation, preparation, management, monitoring,
setting of policies, installation of a system and
administration. There is no syllable in R. A. No. 7924
that grants the MMDA police power, let alone
legislative power. Even the Metro Manila Council has
not been delegated any legislative power. Unlike the
legislative bodies of the local government units, there is
no provision in R. A. No. 7924 that empowers the MMDA
or its Council to "enact ordinances, approve resolutions
and appropriate funds for the general welfare" of the
inhabitants of Metro Manila. The MMDA is, as termed in
the charter itself, a "development authority." It is an
agency created for the purpose of laying down policies
and coordinating with the various national government
agencies, peoples organizations, non-governmental
organizations and the private sector for the efficient and
expeditious delivery of basic services in the vast
metropolitan area. All its functions are administrative
in nature and these are actually summed up in the
charter itself, viz:
"Sec. 2. Creation of the Metropolitan Manila Development
Authority. -- x x x.
The MMDA shall perform planning, monitoring and
coordinative functions, and in the process
exercise regulatory and supervisory authority over the
delivery of metro-wide services within Metro Manila,
without diminution of the autonomy of the local
government units concerning purely local matters."
Petitioner cannot seek refuge in the cases of Sangalang
v. Intermediate Appellate Courtwhere we upheld a
zoning ordinance issued by the Metro Manila Commission
(MMC), the predecessor of the MMDA, as an exercise of
police power. The first Sangalang decision was on the
merits of the petition, while the second decision denied
reconsideration of the first case and in addition discussed
the case of Yabut v. Court of Appeals.
Sangalang v. IAC involved five (5) consolidated petitions
filed by respondent BAVA and three residents of Bel-Air
Village against other residents of the Village and the
Ayala Corporation, formerly the Makati Development
Corporation, as the developer of the subdivision. The
petitioners sought to enforce certain restrictive easements
in the deeds of sale over their respective lots in the
subdivision. These were the prohibition on the setting up
of commercial and advertising signs on the lots, and the
condition that the lots be used only for residential
purposes. Petitioners alleged that respondents, who were
residents along Jupiter Street of the subdivision,
converted their residences into commercial
establishments in violation of the "deed restrictions," and
that respondent Ayala Corporation ushered in the full
commercialization" of Jupiter Street by tearing down the
perimeter wall that separated the commercial from the
residential section of the village.
The petitions were dismissed based on Ordinance No. 81
of the Municipal Council of Makati and Ordinance No. 81-
01 of the Metro Manila Commission (MMC). Municipal
Ordinance No. 81 classified Bel-Air Village as a Class A
Residential Zone, with its boundary in the south extending
to the center line of Jupiter Street. The Municipal
Ordinance was adopted by the MMC under the
Comprehensive Zoning Ordinance for the National
Capital Region and promulgated as MMC Ordinance No.
81-01. Bel-Air Village was indicated therein as bounded
by Jupiter Street and the block adjacent thereto was
classified as a High Intensity Commercial Zone.
We ruled that since both Ordinances recognized Jupiter
Street as the boundary between Bel-Air Village and the
commercial district, Jupiter Street was not for the
exclusive benefit of Bel-Air residents. We also held that
the perimeter wall on said street was constructed not to
separate the residential from the commercial blocks but
simply for security reasons, hence, in tearing down said
wall, Ayala Corporation did not violate the "deed
restrictions" in the deeds of sale. Scc-alr
We upheld the ordinances, specifically MMC Ordinance
No. 81-01, as a legitimate exercise of police power. The
power of the MMC and the Makati Municipal Council to
enact zoning ordinances for the general welfare prevailed
over the "deed restrictions".
In the second Sangalang/Yabut decision, we held that
the opening of Jupiter Street was warranted by the
demands of the common good in terms of "traffic
decongestion and public convenience." Jupiter was
opened by the Municipal Mayor to alleviate traffic
congestion along the public streets adjacent to the
Village. The same reason was given for the opening to
public vehicular traffic of Orbit Street, a road inside the
same village. The destruction of the gate in Orbit Street
was also made under the police power of the municipal
government. The gate, like the perimeter wall along
Jupiter, was a public nuisance because it hindered and
impaired the use of property, hence, its summary
abatement by the mayor was proper and legal.
Contrary to petitioners claim, the
two Sangalang cases do not apply to the case at bar.
Firstly, both involved zoning ordinances passed by the
municipal council of Makati and the MMC. In the instant
case, the basis for the proposed opening of Neptune
Street is contained in the notice of December 22, 1995
sent by petitioner to respondent BAVA, through its
president. The notice does not cite any ordinance or law,
either by the Sangguniang Panlungsod of Makati City or
by the MMDA, as the legal basis for the proposed
opening of Neptune Street. Petitioner MMDA simply relied
on its authority under its charter "to rationalize the use of
roads and/or thoroughfares for the safe and convenient
movement of persons." Rationalizing the use of roads and
thoroughfares is one of the acts that fall within the scope
of transport and traffic management. By no stretch of the
imagination, however, can this be interpreted as an
express or implied grant of ordinance-making power,
much less police power. Misjuris
Secondly, the MMDA is not the same entity as the
MMC in Sangalang. Although the MMC is the
forerunner of the present MMDA, an examination of
Presidential Decree (P. D.) No. 824, the charter of the
MMC, shows that the latter possessed greater powers
which were not bestowed on the present MMDA. Jjlex
Metropolitan Manila was first created in 1975 by
Presidential Decree (P.D.) No. 824. It comprised the
Greater Manila Area composed of the contiguous four (4)
cities of Manila, Quezon, Pasay and Caloocan, and the
thirteen (13) municipalities of Makati, Mandaluyong, San
Juan, Las Pinas, Malabon, Navotas, Pasig, Pateros,
Paranaque, Marikina, Muntinlupa and Taguig in the
province of Rizal, and Valenzuela in the province of
Bulacan. Metropolitan Manila was created as a response
to the finding that the rapid growth of population and the
increase of social and economic requirements in these
areas demand a call for simultaneous and unified
development; that the public services rendered by the
respective local governments could be administered more
efficiently and economically if integrated under a system
of central planning; and this coordination, "especially in
the maintenance of peace and order and the eradication
of social and economic ills that fanned the flames of
rebellion and discontent [were] part of reform measures
under Martial Law essential to the safety and security of
the State."
Metropolitan Manila was established as a "public
corporation" with the following powers: Calrs-pped
"Section 1. Creation of the Metropolitan Manila.There is
hereby created a public corporation, to be known as the
Metropolitan Manila, vested with powers and attributes
of a corporation including the power to make
contracts, sue and be sued, acquire, purchase,
expropriate, hold, transfer and dispose of property
and such other powers as are necessary to carry out
its purposes. The Corporation shall be administered by a
Commission created under this Decree."
The administration of Metropolitan Manila was placed
under the Metro Manila Commission (MMC) vested with
the following powers:
"Sec. 4. Powers and Functions of the Commission. - The
Commission shall have the following powers and
functions:
1. To act as a central government to establish and
administer programs and provide services common
to the area;
2. To levy and collect taxes and special assessments,
borrow and expend money and issue bonds, revenue
certificates, and other obligations of indebtedness.
Existing tax measures should, however, continue to be
operative until otherwise modified or repealed by the
Commission;
3. To charge and collect fees for the use of public service
facilities;
4. To appropriate money for the operation of the
metropolitan government and review appropriations for
the city and municipal units within its jurisdiction with
authority to disapprove the same if found to be not in
accordance with the established policies of the
Commission, without prejudice to any contractual
obligation of the local government units involved existing
at the time of approval of this Decree;
5. To review, amend, revise or repeal all ordinances,
resolutions and acts of cities and municipalities
within Metropolitan Manila;
6. To enact or approve ordinances, resolutions and to
fix penalties for any violation thereof which shall not
exceed a fine of P10,000.00 or imprisonment of six
years or both such fine and imprisonment for a single
offense;
7. To perform general administrative, executive and
policy-making functions;
8. To establish a fire control operation center, which shall
direct the fire services of the city and municipal
governments in the metropolitan area;
9. To establish a garbage disposal operation center,
which shall direct garbage collection and disposal in the
metropolitan area;
10. To establish and operate a transport and traffic
center, which shall direct traffic activities; Jjjuris
11. To coordinate and monitor governmental and private
activities pertaining to essential services such as
transportation, flood control and drainage, water supply
and sewerage, social, health and environmental services,
housing, park development, and others;
12. To insure and monitor the undertaking of a
comprehensive social, economic and physical planning
and development of the area;
13. To study the feasibility of increasing barangay
participation in the affairs of their respective local
governments and to propose to the President of the
Philippines definite programs and policies for
implementation;
14. To submit within thirty (30) days after the close of
each fiscal year an annual report to the President of the
Philippines and to submit a periodic report whenever
deemed necessary; and
15. To perform such other tasks as may be assigned or
directed by the President of the Philippines." Sc jj
The MMC was the "central government" of Metro
Manila for the purpose of establishing and administering
programs providing services common to the area. As a
"central government" it had the power to levy and collect
taxes and special assessments, the power to charge and
collect fees; the power to appropriate money for its
operation, and at the same time, review appropriations for
the city and municipal units within its jurisdiction. It was
bestowed the power to enact or approve ordinances,
resolutions and fix penalties for violation of such
ordinances and resolutions. It also had the power to
review, amend, revise or repeal all ordinances,
resolutions and acts of any of the four (4) cities and
thirteen (13) municipalities comprising Metro Manila.
P. D. No. 824 further provided:
"Sec. 9. Until otherwise provided, the governments of the
four cities and thirteen municipalities in the Metropolitan
Manila shall continue to exist in their present form except
as may be inconsistent with this Decree. The members
of the existing city and municipal councils in
Metropolitan Manila shall, upon promulgation of this
Decree, and until December 31, 1975, become
members of the Sangguniang Bayan which is hereby
created for every city and municipality of
Metropolitan Manila.
In addition, the Sangguniang Bayan shall be composed of
as many barangay captains as may be determined and
chosen by the Commission, and such number of
representatives from other sectors of the society as may
be appointed by the President upon recommendation of
the Commission.
x x x.
The Sangguniang Bayan may recommend to the
Commission ordinances, resolutions or such
measures as it may adopt; Provided, that no such
ordinance, resolution or measure shall become
effective, until after its approval by the Commission;
and Provided further, that the power to impose taxes
and other levies, the power to appropriate money and
the power to pass ordinances or resolutions with
penal sanctions shall be vested exclusively in the
Commission."
The creation of the MMC also carried with it the
creation of the Sangguniang Bayan. This was
composed of the members of the component city and
municipal councils, barangay captains chosen by the
MMC and sectoral representatives appointed by the
President. The Sangguniang Bayan had the power to
recommend to the MMC the adoption of ordinances,
resolutions or measures. It was the MMC itself,
however, that possessed legislative powers. All
ordinances, resolutions and measures recommended by
the Sangguniang Bayan were subject to the MMCs
approval. Moreover, the power to impose taxes and other
levies, the power to appropriate money, and the power to
pass ordinances or resolutions with penal sanctions were
vested exclusively in the MMC. Sce-dp
Thus, Metropolitan Manila had a "central
government," i.e., the MMC which fully possessed
legislative and police powers. Whatever legislative
powers the component cities and municipalities had
were all subject to review and approval by the MMC.
After President Corazon Aquino assumed power,
there was a clamor to restore the autonomy of the local
government units in Metro Manila. Hence, Sections 1 and
2 of Article X of the 1987 Constitution provided: Sj cj
"Section 1. The territorial and political subdivisions of the
Republic of the Philippines are the provinces, cities,
municipalities and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as herein
provided.
Section 2. The territorial and political subdivisions shall
enjoy local autonomy."
The Constitution, however, recognized the necessity of
creating metropolitan regions not only in the existing
National Capital Region but also in potential equivalents
in the Visayas and Mindanao. Section 11 of the same
Article X thus provided:
"Section 11. The Congress may, by law, create special
metropolitan political subdivisions, subject to a plebiscite
as set forth in Section 10 hereof. The component cities
and municipalities shall retain their basic autonomy and
shall be entitled to their own local executives and
legislative assemblies. The jurisdiction of the metropolitan
authority that will thereby be created shall be limited to
basic services requiring coordination."
The Constitution itself expressly provides that Congress
may, by law, create "special metropolitan political
subdivisions" which shall be subject to approval by a
majority of the votes cast in a plebiscite in the political
units directly affected; the jurisdiction of this subdivision
shall be limited to basic services requiring coordination;
and the cities and municipalities comprising this
subdivision shall retain their basic autonomy and their
own local executive and legislative assemblies. Pending
enactment of this law, the Transitory Provisions of the
Constitution gave the President of the Philippines the
power to constitute the Metropolitan Authority, viz:
"Section 8. Until otherwise provided by Congress, the
President may constitute the Metropolitan Authority to be
composed of the heads of all local government units
comprising the Metropolitan Manila area."
In 1990, President Aquino issued Executive Order (E.
O.) No. 392 and constituted the Metropolitan Manila
Authority (MMA). The powers and functions of the
MMC were devolved to the MMA. It ought to be
stressed, however, that not all powers and functions
of the MMC were passed to the MMA. The MMAs
power was limited to the "delivery of basic urban
services requiring coordination in Metropolitan
Manila." The MMAs governing body, the Metropolitan
Manila Council, although composed of the mayors of
the component cities and municipalities, was merely
given the power of: (1) formulation of policies on the
delivery of basic services requiring coordination and
consolidation; and (2) promulgation of resolutions
and other issuances, approval of a code of basic
services and the exercise of its rule-making power.
Under the 1987 Constitution, the local government units
became primarily responsible for the governance of their
respective political subdivisions. The MMAs jurisdiction
was limited to addressing common problems involving
basic services that transcended local boundaries. It did
not have legislative power. Its power was merely to
provide the local government units technical assistance in
the preparation of local development plans. Any
semblance of legislative power it had was confined to a
"review [of] legislation proposed by the local legislative
assemblies to ensure consistency among local
governments and with the comprehensive development
plan of Metro Manila," and to "advise the local
governments accordingly."
When R.A. No. 7924 took effect, Metropolitan Manila
became a "special development and administrative
region" and the MMDA a "special development
authority" whose functions were "without prejudice
to the autonomy of the affected local government
units." The character of the MMDA was clearly
defined in the legislative debates enacting its charter.
R. A. No. 7924 originated as House Bill No. 14170/ 11116
and was introduced by several legislators led by Dante
Tinga, Roilo Golez and Feliciano Belmonte. It was
presented to the House of Representatives by the
Committee on Local Governments chaired by
Congressman Ciriaco R. Alfelor. The bill was a product of
Committee consultations with the local government units
in the National Capital Region (NCR), with former
Chairmen of the MMC and MMA, and career officials of
said agencies. When the bill was first taken up by the
Committee on Local Governments, the following debate
took place:
"THE CHAIRMAN [Hon. Ciriaco Alfelor]: Okay, Let me
explain. This has been debated a long time ago, you
know. Its a special we can create a special metropolitan
political subdivision. Supreme
Actually, there are only six (6) political subdivisions
provided for in the Constitution: barangay, municipality,
city, province, and we have the Autonomous Region of
Mindanao and we have the Cordillera. So we have 6.
Now.
HON. [Elias] LOPEZ: May I interrupt, Mr. Chairman. In
the case of the Autonomous Region, that is also
specifically mandated by the Constitution.
THE CHAIRMAN: Thats correct. But it is considered to be
a political subdivision. What is the meaning of a
political subdivision? Meaning to say, that it has its
own government, it has its own political personality,
it has the power to tax, and all governmental powers:
police power and everything. All right. Authority is
different; because it does not have its own
government. It is only a council, it is an organization
of political subdivision, powers, no, which is not
imbued with any political power. Esmmis
If you go over Section 6, where the powers and
functions of the Metro Manila Development Authority,
it is purely coordinative. And it provides here that the
council is policy-making. All right.
Under the Constitution is a Metropolitan Authority with
coordinative power. Meaning to say, it coordinates all of
the different basic services which have to be delivered to
the constituency. All right.
There is now a problem. Each local government unit is
given its respective as a political subdivision. Kalookan
has its powers, as provided for and protected and
guaranteed by the Constitution. All right, the exercise.
However, in the exercise of that power, it might be
deleterious and disadvantageous to other local
government units. So, we are forming an authority where
all of these will be members and then set up a policy in
order that the basic services can be effectively
coordinated. All right. justice
Of course, we cannot deny that the MMDA has to
survive. We have to provide some funds, resources.
But it does not possess any political power. We do
not elect the Governor. We do not have the power to
tax. As a matter of fact, I was trying to intimate to the
author that it must have the power to sue and be sued
because it coordinates. All right. It coordinates practically
all these basic services so that the flow and the
distribution of the basic services will be continuous. Like
traffic, we cannot deny that. Its before our eyes.
Sewerage, flood control, water system, peace and order,
we cannot deny these. Its right on our face. We have to
look for a solution. What would be the right solution? All
right, we envision that there should be a coordinating
agency and it is called an authority. All right, if you do not
want to call it an authority, its alright. We may call it a
council or maybe a management agency.
x x x."
Clearly, the MMDA is not a political unit of
government. The power delegated to the MMDA is that
given to the Metro Manila Council to promulgate
administrative rules and regulations in the implementation
of the MMDAs functions. There is no grant of authority
to enact ordinances and regulations for the general
welfare of the inhabitants of the metropolis. This was
explicitly stated in the last Committee deliberations prior
to the bills presentation to Congress. Thus: Ed-p
"THE CHAIRMAN: Yeah, but we have to go over the
suggested revision. I think this was already approved
before, but it was reconsidered in view of the proposals,
set-up, to make the MMDA stronger. Okay, so if there is
no objection to paragraph "f" And then next is paragraph
"b," under Section 6. "It shall approve metro-wide
plans, programs and projects and issue ordinances
or resolutions deemed necessary by the MMDA to
carry out the purposes of this Act." Do you have the
powers? Does the MMDA because that takes the form
of a local government unit, a political subdivision.
HON. [Feliciano] BELMONTE: Yes, I believe so, your
Honor. When we say that it has the policies, its very clear
that those policies must be followed. Otherwise, whats
the use of empowering it to come out with policies. Now,
the policies may be in the form of a resolution or it may be
in the form of a ordinance. The term "ordinance" in this
case really gives it more teeth, your honor. Otherwise, we
are going to see a situation where you have the power to
adopt the policy but you cannot really make it stick as in
the case now, and I think here is Chairman Bunye. I think
he will agree that that is the case now. Youve got the
power to set a policy, the body wants to follow your
policy, then we say lets call it an ordinance and see if
they will not follow it.
THE CHAIRMAN: Thats very nice. I like that. However,
there is a constitutional impediment. You are making
this MMDA a political subdivision. The creation of the
MMDA would be subject to a plebiscite. That is what
Im trying to avoid. Ive been trying to avoid this kind
of predicament. Under the Constitution it states: if it
is a political subdivision, once it is created it has to
be subject to a plebiscite. Im trying to make this as
administrative. Thats why we place the Chairman as a
cabinet rank.
HON. BELMONTE: All right, Mr. Chairman, okay, what
you are saying there is .
THE CHAIRMAN: In setting up ordinances, it is a
political exercise. Believe me.
HON. [Elias] LOPEZ: Mr. Chairman, it can be changed
into issuances of rules and regulations. That would
be it shall also be enforced. Jksm
HON. BELMONTE: Okay, I will .
HON. LOPEZ: And you can also say that violation of
such rule, you impose a sanction. But you know,
ordinance has a different legal connotation.
HON. BELMONTE: All right. I defer to that opinion,
your Honor. sc
THE CHAIRMAN: So instead of ordinances, say rules
and regulations.
HON. BELMONTE: Or resolutions. Actually, they are
actually considering resolutions now.
THE CHAIRMAN: Rules and resolutions.
HON. BELMONTE: Rules, regulations and
resolutions."
The draft of H. B. No. 14170/ 11116 was presented by the
Committee to the House of Representatives. The
explanatory note to the bill stated that the proposed
MMDA is a "development authority" which is a "national
agency, not a political government unit." The explanatory
note was adopted as the sponsorship speech of the
Committee on Local Governments. No interpellations or
debates were made on the floor and no amendments
introduced. The bill was approved on second reading on
the same day it was presented.
When the bill was forwarded to the Senate, several
amendments were made. These amendments, however,
did not affect the nature of the MMDA as originally
conceived in the House of Representatives.
It is thus beyond doubt that the MMDA is not a local
government unit or a public corporation endowed
with legislative power. It is not even a "special
metropolitan political subdivision" as contemplated in
Section 11, Article X of the Constitution. The creation of a
"special metropolitan political subdivision" requires the
approval by a majority of the votes cast in a plebiscite in
the political units directly affected. R. A. No. 7924 was not
submitted to the inhabitants of Metro Manila in a
plebiscite. The Chairman of the MMDA is not an official
elected by the people, but appointed by the President
with the rank and privileges of a cabinet member. In fact,
part of his function is to perform such other duties as may
be assigned to him by the President, whereas in local
government units, the President merely exercises
supervisory authority. This emphasizes
the administrative character of the MMDA. Newmiso
Clearly then, the MMC under P. D. No. 824 is not the
same entity as the MMDA under R. A. No. 7924. Unlike
the MMC, the MMDA has no power to enact
ordinances for the welfare of the community. It is the
local government units, acting through their respective
legislative councils, that possess legislative power and
police power. In the case at bar, the Sangguniang
Panlungsod of Makati City did not pass any ordinance or
resolution ordering the opening of Neptune Street, hence,
its proposed opening by petitioner MMDA is illegal and
the respondent Court of Appeals did not err in so ruling.
We desist from ruling on the other issues as they are
unnecessary. Esmso
We stress that this decision does not make light of the
MMDAs noble efforts to solve the chaotic traffic condition
in Metro Manila. Everyday, traffic jams and traffic
bottlenecks plague the metropolis. Even our once
sprawling boulevards and avenues are now crammed
with cars while city streets are clogged with motorists and
pedestrians. Traffic has become a social malaise
affecting our peoples productivity and the efficient
delivery of goods and services in the country. The MMDA
was created to put some order in the metropolitan
transportation system but unfortunately the powers
granted by its charter are limited. Its good intentions
cannot justify the opening for public use of a private street
in a private subdivision without any legal warrant. The
promotion of the general welfare is not antithetical to the
preservation of the rule of law. Sdjad
IN VIEW WHEREOF, the petition is denied. The Decision
and Resolution of the Court of Appeals in CA-G.R. SP
No. 39549 are affirmed. Sppedsc
SO ORDERED.
===========================================
G.R. No. 144681. June 21, 2004
Professional Regulations Commission v. De Guzman
TINGA, J.:
This petition for review under Rule 45 of the 1997 Rules
of Civil Procedure seeks to nullify
the Decision, dated May 16, 2000, of the Court of
Appeals in CA-G.R. SP No. 37283. The appellate court
affirmed the judgment dated December 19, 1994, of the
Regional Trial Court (RTC) of Manila, Branch 52, in Civil
Case No. 93-66530. The trial court allowed the
respondents to take their physicians oath and to register
as duly licensed physicians. Equally challenged is
the Resolution promulgated on August 25, 2000 of the
Court of Appeals, denying petitioners Motion for
Reconsideration.
The facts of this case are as follows:
The respondents are all graduates of the Fatima College
of Medicine, Valenzuela City, Metro Manila. They passed
the Physician Licensure Examination conducted in
February 1993 by the Board of Medicine (Board).
Petitioner Professional Regulation Commission (PRC)
then released their names as successful examinees in
the medical licensure examination.
Shortly thereafter, the Board observed that the grades of
the seventy-nine successful examinees
from Fatima College in the two most difficult subjects in
the medical licensure exam, Biochemistry (Bio-Chem)
and Obstetrics and Gynecology (OB-Gyne), were
unusually and exceptionally high.
Eleven Fatima examinees scored 100% in Bio-Chem and
ten got 100% in OB-Gyne, another eleven got 99% in Bio-
Chem, and twenty-one scored 99% in OB-Gyne. The
Board also observed that many of those who passed
from Fatima got marks of 95% or better in both subjects,
and no one got a mark lower than 90%. A comparison of
the performances of the candidates from other schools
was made. The Board observed that strangely, the
unusually high ratings were true only
for Fatima College examinees. It was a record-breaking
phenomenon in the history of the Physician Licensure
Examination.
On June 7, 1993, the Board issued Resolution No. 19,
withholding the registration as physicians of all the
examinees from the Fatima College of Medicine The PRC
asked the National Bureau of Investigation (NBI) to
investigate whether any anomaly or irregularity marred
the February 1993 Physician Licensure Examination.
Prior to the NBI investigation, the Board requested Fr.
Bienvenido F. Nebres, S.J., an expert mathematician and
authority in statistics, and later president of the Ateneo de
Manila University, to conduct a statistical analysis of the
results in Bio-Chem and Ob-Gyne of the said
examination.
On June 10, 1993, Fr. Nebres submitted his report. He
reported that a comparison of the scores in Bio-Chem
and Ob-Gyne, of the Fatima College examinees with
those of examinees from De La Salle University and
Perpetual Help College of Medicine showed that the
scores of Fatima College examinees were not only
incredibly high but unusually clustered close to each
other. He concluded that there must be some unusual
reason creating the clustering of scores in the two
subjects. It must be a cause strong enough to eliminate
the normal variations that one should expect from the
examinees [of Fatima College] in terms of talent, effort,
energy, etc.
For its part, the NBI found that the questionable passing
rate of Fatima examinees in the [1993] Physician
Examination leads to the conclusion that
the Fatima examinees gained early access to the test
questions.
On July 5, 1993, respondents Arlene V. De Guzman,
Violeta V. Meneses, Celerina S. Navarro, Jose
Ramoncito P. Navarro, Arnel V. Herrera, and Geraldine
Elizabeth M. Pagilagan (Arlene V. De Guzman et al., for
brevity) filed a special civil action for mandamus, with
prayer for preliminary mandatory injunction docketed as
Civil Case No. 93-66530 with the Regional Trial Court
(RTC) of Manila, Branch 52. Their petition was adopted
by the other respondents as intervenors.
Meanwhile, the Board issued Resolution No. 26,
dated July 21, 1993, charging respondents with
immorality, dishonest conduct, fraud, and deceit in
connection with the Bio-Chem and Ob-Gyne
examinations. It recommended that the test results of
the Fatima examinees be nullified. The case was
docketed as Adm. Case No. 1687 by the PRC.
On July 28, 1993, the RTC issued an Order in Civil Case
No. 93-66530 granting the preliminary mandatory
injunction sought by the respondents. It ordered the
petitioners to administer the physicians oath to Arlene V.
De Guzman et al., and enter their names in the rolls of
the PRC.
The petitioners then filed a special civil action
for certiorari with the Court of Appeals to set aside the
mandatory injunctive writ, docketed as CA-G.R. SP No.
31701.
On October 21, 1993, the appellate court decided CA-
G.R. SP No. 31701, with the dispositive portion of
the Decision ordaining as follows:
WHEREFORE, this petition is GRANTED. Accordingly,
the writ of preliminary mandatory injunction issued by the
lower court against petitioners is hereby nullified and set
aside.
SO ORDERED.
Arlene V. de Guzman, et al., then elevated the
foregoing Decision to this Court in G.R. No. 112315. In
our Resolution dated May 23, 1994, we denied the
petition for failure to show reversible error on the part of
the appellate court.
Meanwhile, on November 22, 1993, during the pendency
of the instant petition, the pre-trial conference in Civil
Case No. 93-66530 was held. Then, the parties, agreed
to reduce the testimonies of their respective witnesses to
sworn questions-and-answers. This was without prejudice
to cross-examination by the opposing counsel.
On December 13, 1993, petitioners counsel failed to
appear at the trial in the mistaken belief that the trial was
set for December 15. The trial court then ruled that
petitioners waived their right to cross-examine the
witnesses.
On January 27, 1994, counsel for petitioners filed
a Manifestation and Motion stating the reasons for her
non-appearance and praying that the cross-examination
of the witnesses for the opposing parties be reset. The
trial court denied the motion for lack of notice to adverse
counsel. It also denied the Motion for
Reconsideration that followed on the ground that adverse
counsel was notified less than three (3) days prior to the
hearing.
Meanwhile, to prevent the PRC and the Board from
proceeding with Adm. Case No. 1687, the respondents
herein moved for the issuance of a restraining order,
which the lower court granted in its Order dated April 4,
1994.
The petitioners then filed with this Court a petition for
certiorari docketed as G.R. No. 115704, to annul
the Orders of the trial court dated November 13,
1993, February 28, 1994, and April 4, 1994. We referred
the petition to the Court of Appeals where it was docketed
as CA-G.R. SP No. 34506.
On August 31, 1994, the appellate court decided CA-G.R.
SP No. 34506 as follows:
WHEREFORE, the present petition for certiorari with
prayer for temporary restraining order/preliminary
injunction is GRANTED and the Orders of December 13,
1993, February 7, 1994, February 28, 1994, and April 4,
1994 of the RTC-Manila, Branch 52, and all further
proceedings taken by it in Special Civil Action No. 93-
66530 are hereby DECLARED NULL and VOID. The said
RTC-Manila is ordered to allow petitioners counsel to
cross-examine the respondents witnesses, to allow
petitioners to present their evidence in due course of trial,
and thereafter to decide the case on the merits on the
basis of the evidence of the parties. Costs against
respondents.
IT IS SO ORDERED.
The trial was then set and notices were sent to the
parties.
A day before the first hearing, on September 22, 1994,
the petitioners filed an Urgent Ex-Parte Manifestation and
Motion praying for the partial reconsideration of the
appellate courts decision in CA-G.R. SP No. 34506, and
for the outright dismissal of Civil Case No. 93-66530. The
petitioners asked for the suspension of the proceedings.
In its Order dated September 23, 1994, the trial court
granted the aforesaid motion, cancelled the scheduled
hearing dates, and reset the proceedings to October 21
and 28, 1994.
Meanwhile, on October 25, 1994, the Court of Appeals
denied the partial motion for reconsideration in CA-G.R.
SP No. 34506. Thus, petitioners filed with the Supreme
Court a petition for review docketed as G.R. No. 117817,
entitled Professional Regulation Commission, et al. v.
Court of Appeals, et al.
On November 11, 1994, counsel for the petitioners failed
to appear at the trial of Civil Case No. 93-66530. Upon
motion of the respondents herein, the trial court ruled that
herein petitioners waived their right to cross-examine the
herein respondents. Trial was reset to November 28,
1994.
On November 25, 1994, petitioners counsel moved for
the inhibition of the trial court judge for alleged partiality.
On November 28, 1994, the day the Motion to Inhibit was
to be heard, petitioners failed to appear. Thus, the trial
court denied the Motion to Inhibit and declared Civil Case
No. 93-66530 deemed submitted for decision.
On December 19, 1994, the trial court handed down its
judgment in Civil Case No. 93-66530, the fallo of which
reads:
WHEREFORE, judgment is rendered ordering the
respondents to allow the petitioners and intervenors
(except those with asterisks and footnotes in pages 1 & 2
of this decision) [sic], to take the physicians oath and to
register them as physicians.
It should be made clear that this decision is without
prejudice to any administrative disciplinary action which
may be taken against any of the petitioners for such
causes and in the manner provided by law and consistent
with the requirements of the Constitution as any other
professionals.
No costs.
SO ORDERED.
As a result of these developments, petitioners filed with
this Court a petition for review on certiorari docketed as
G.R. No. 118437, entitled Professional Regulation
Commission v. Hon. David G. Nitafan, praying inter alia,
that (1) G.R. No. 118437 be consolidated with G.R. No.
117817; (2) the decision of the Court of Appeals dated
August 31, 1994 in CA-G.R. SP No. 34506 be nullified for
its failure to decree the dismissal of Civil Case No. 93-
66530, and in the alternative, to set aside the decision of
the trial court in Civil Case No. 93-66530, order the trial
court judge to inhibit himself, and Civil Case No. 93-
66530 be re-raffled to another branch.
On December 26, 1994, the petitioners herein filed
their Notice of Appeal in Civil Case No. 93-66530, thereby
elevating the case to the Court of Appeals, where it was
docketed as CA-G.R. SP No. 37283.
In our Resolution of June 7, 1995, G.R. No. 118437 was
consolidated with G.R. No. 117817.
On July 9, 1998, we disposed of G.R. Nos. 117817 and
118437 in this wise:
WHEREFORE, the petition in G.R. No. 117817 is
DISMISSED for being moot. The petition in G.R. No.
118437 is likewise DISMISSED on the ground that there
is a pending appeal before the Court of Appeals.
Assistant Solicitor General Amparo M. Cabotaje-Tang is
advised to be more circumspect in her dealings with the
courts as a repetition of the same or similar acts will be
dealt with accordingly.
SO ORDERED.
While CA-G.R. SP No. 37283 was awaiting disposition by
the appellate court, Arnel V. Herrera, one of the original
petitioners in Civil Case No. 93-66530, joined by twenty-
seven intervenors, to wit: Fernando F. Mandapat, Ophelia
C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan,
Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q.
Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao,
Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes,
Laura M. Santos, Maritel M. Echiverri, Bernadette C.
Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R.
Raqueno-Rabaino, Saibzur N. Edding, Derileen D.
Dorado-Edding, Robert B. Sanchez, Maria Rosario L.
Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-
Palma, Margarita Belinda L. Vicencio-Gamilla,
Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin
C. Arriola-Ocampo, and Jose Ramoncito P. Navarro,
manifested that they were no longer interested in
proceeding with the case and moved for its dismissal. A
similar manifestation and motion was later filed by
intervenors Mary Jean I. Yeban-Merlan, Michael L.
Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda
C. Rabara, Yolanda P. Unica, Dayminda G. Bontuyan,
Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R.
Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan,
Frederick D. Francisco, Violeta V. Meneses, Melita J.
Caedo, Clarisa SJ. Nicolas, Federico L. Castillo,
Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy,
Lydia C. Chan, and Melvin M. Usita. The Court of
Appeals ruled that its decision in CA-G.R. SP No. 37283
would not apply to them.
On May 16, 2000, the Court of Appeals decided CA-G.R.
SP No. 37283, with the following fallo, to wit:
WHEREFORE, finding no reversible error in the decision
appealed from, We hereby AFFIRM the same and
DISMISS the instant appeal.
No pronouncement as to costs.
SO ORDERED.
In sustaining the trial courts decision, the appellate court
ratiocinated that the respondents complied with all the
statutory requirements for admission into the licensure
examination for physicians in February 1993. They all
passed the said examination. Having fulfilled the
requirements of Republic Act No. 2382, they should be
allowed to take their oaths as physicians and be
registered in the rolls of the PRC.
Hence, this petition raising the following issues:
I
WHETHER OR NOT RESPONDENTS HAVE A VALID
CAUSE OF ACTION FOR MANDAMUS AGAINST
PETITIONERS IN THE LIGHT OF THE RESOLUTION
OF THIS HONORABLE COURT IN G.R. NO. 112315
AFFIRMING THE COURT OF APPEALS DECISION
DECLARING THAT IF EVER THERE IS SOME DOUBT
AS TO THE MORAL FITNESS OF EXAMINEES, THE
ISSUANCE OF LICENSE TO PRACTICE MEDICINE IS
NOT AUTOMATICALLY GRANTED TO THE
SUCCESSFUL EXAMINEES.
II
WHETHER OR NOT THE PETITION FOR MANDAMUS
COULD PROCEED DESPITE THE PENDENCY OF
ADMINISTRATIVE CASE NO. 1687, WHICH WAS
PRECISELY LODGED TO DETERMINE THE MORAL
FITNESS OF RESPONDENTS TO BECOME DOCTORS.
To our mind, the only issue is: Did the Court of Appeals
commit a reversible error of law in sustaining the
judgment of the trial court that respondents are entitled to
a writ of mandamus?
The petitioners submit that a writ of mandamus will not lie
in this case. They point out that for a writ of mandamus to
issue, the applicant must have a well-defined, clear and
certain legal right to the thing demanded and it is the duty
of the respondent to perform the act required. Thus,
mandamus may be availed of only when the duty sought
to be performed is a ministerial and not a discretionary
one. The petitioners argue that the appellate courts
decision in CA-G.R. SP No. 37283 upholding the decision
of the trial court in Civil Case No. 93-66530 overlooked its
own pronouncement in CA-G.R. SP No. 31701. The
Court of Appeals held in CA-G.R. SP No. 31701 that the
issuance of a license to engage in the practice of
medicine becomes discretionary on the PRC if there
exists some doubt that the successful examinee has not
fully met the requirements of the law. The petitioners
stress that this Courts Resolution dated May 24, 1994 in
G.R. No. 112315 held that there was no showing that the
Court of Appeals had committed any reversible error in
rendering the questioned judgment in CA-G.R. SP No.
31701. The petitioners point out that our Resolution in
G.R. No. 112315 has long become final and executory.
Respondents counter that having passed the 1993
licensure examinations for physicians, the petitioners
have the obligation to administer to them the oath as
physicians and to issue their certificates of registration as
physicians pursuant to Section 20of Rep. Act No. 2382.
The Court of Appeals in CA-G.R. SP No. 37283, found
that respondents complied with all the requirements of
Rep. Act No. 2382. Furthermore, respondents were
admitted by the Medical Board to the licensure
examinations and had passed the same. Hence, pursuant
to Section 20 of Rep. Act No. 2382, the petitioners had
the obligation to administer their oaths as physicians and
register them.
Mandamus is a command issuing from a court of
competent jurisdiction, in the name of the state or the
sovereign, directed to some inferior court, tribunal, or
board, or to some corporation or person requiring the
performance of a particular duty therein specified, which
duty results from the official station of the party to whom
the writ is directed, or from operation of law. Section 3 of
Rule 65 of the 1997 Rules of Civil Procedure outlines two
situations when a writ of mandamus may issue, when any
tribunal, corporation, board, officer or person unlawfully
(1) neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office,
trust, or station; or (2) excludes another from the use and
enjoyment of a right or office to which the other is entitled.
We shall discuss the issues successively.
1. On The Existence of a Duty of the Board of Medicine
To Issue Certificates of Registration as Physicians under
Rep. Act No. 2382.
For mandamus to prosper, there must be a showing that
the officer, board, or official concerned, has a clear legal
duty, not involving discretion. Moreover, there must be
statutory authority for the performance of the act, and the
performance of the duty has been refused. Thus, it must
be pertinently asked now: Did petitioners have the duty to
administer the Hippocratic Oath and register respondents
as physicians under the Medical Act of 1959?
As found by the Court of Appeals, on which we agree on
the basis of the records:
It bears emphasizing herein that petitioner-appellees and
intervenor-appellees have fully complied with all the
statutory requirements for admission into the licensure
examinations for physicians conducted and administered
by the respondent-appellants on February 12, 14, 20 and
21, 1993. Stress, too, must be made of the fact that all of
them successfully passed the same examinations.
The crucial query now is whether the Court of Appeals
erred in concluding that petitioners should allow the
respondents to take their oaths as physicians and register
them, steps which would enable respondents to practice
the medical profession pursuant to Section 20 of the
Medical Act of 1959?
The appellate court relied on a single provision, Section
20 of Rep. Act No. 2382, in concluding that the petitioners
had the ministerial obligation to administer the Hippocratic
Oath to respondents and register them as physicians. But
it is a basic rule in statutory construction that each part of
a statute should be construed in connection with every
other part to produce a harmonious whole, not confining
construction to only one section. The intent or meaning of
the statute should be ascertained from the statute taken
as a whole, not from an isolated part of the provision.
Accordingly, Section 20 of Rep. Act No. 2382, as
amended should be read in conjunction with the other
provisions of the Act. Thus, to determine whether the
petitioners had the ministerial obligation to administer the
Hippocratic Oath to respondents and register them as
physicians, recourse must be had to the entirety of the
Medical Act of 1959.
A careful reading of Section 20 of the Medical Act of 1959
discloses that the law uses the word shall with respect to
the issuance of certificates of registration. Thus, the
petitioners shallsign and issue certificates of registration
to those who have satisfactorily complied with the
requirements of the Board. In statutory construction the
term shall is a word of command. It is given imperative
meaning. Thus, when an examinee satisfies the
requirements for the grant of his physicians license, the
Board is obliged to administer to him his oath and register
him as a physician, pursuant to Section 20 and par. (1) of
Section 22 of the Medical Act of 1959.
However, the surrounding circumstances in this case call
for serious inquiry concerning the satisfactory compliance
with the Board requirements by the respondents. The
unusually high scores in the two most difficult subjects
was phenomenal, according to Fr. Nebres, the consultant
of PRC on the matter, and raised grave doubts about the
integrity, if not validity, of the tests. These doubts have to
be appropriately resolved.
Under the second paragraph of Section 22, the Board is
vested with the power to conduct administrative
investigations and disapprove applications for
examination or registration, pursuant to the objectives of
Rep. Act No. 2382 as outlined in Section 1 thereof. In this
case, after the investigation, the Board filed before the
PRC, Adm. Case No. 1687 against the respondents to
ascertain their moral and mental fitness to practice
medicine, as required by Section 9 of Rep. Act No. 2382.
In its Decision dated July 1, 1997, the Board ruled:
WHEREFORE, the BOARD hereby CANCELS the
respondents[] examination papers in the Physician
Licensure Examinations given in February 1993 and
further DEBARS them from taking any licensure
examination for a period of ONE (1) YEAR from the date
of the promulgation of this DECISION. They may, if they
so desire, apply for the scheduled examinations for
physicians after the lapse of the period imposed by the
BOARD.
SO ORDERED.
Until the moral and mental fitness of the respondents
could be ascertained, according to petitioners, the Board
has discretion to hold in abeyance the administration of
the Hippocratic Oath and the issuance of the certificates
to them. The writ of mandamus does not lie to compel
performance of an act which is not duly authorized.
The respondents nevertheless argue that under Section
20, the Board shall not issue a certificate of registration
only in the following instances: (1) to any candidate who
has been convicted by a court of competent jurisdiction of
any criminal offense involving moral turpitude; (2) or has
been found guilty of immoral or dishonorable conduct
after the investigation by the Board; or (3) has been
declared to be of unsound mind. They aver that none of
these circumstances are present in their case.
Petitioners reject respondents argument. We are
informed that in Board Resolution No. 26, dated July 21,
1993, the Board resolved to file charges against the
examinees from Fatima College of Medicine for
immorality, dishonesty, fraud, and deceit in the
Obstetrics-Gynecology and Biochemistry examinations. It
likewise sought to cancel the examination results
obtained by the examinees from the Fatima College.
Section 8of Rep. Act No. 2382 prescribes, among others,
that a person who aspires to practice medicine in
the Philippines, must have satisfactorily passed the
corresponding Board Examination. Section 22, in turn,
provides that the oath may only be administered to
physicians who qualified in the examinations. The
operative word here is satisfactorily, defined as sufficient
to meet a condition or obligation or capable of dispelling
doubt or ignorance. Gleaned from Board Resolution No.
26, the licensing authority apparently did not find that the
respondents satisfactorily passed the licensure
examinations. The Board instead sought to nullify the
examination results obtained by the respondents.
2. On the Right Of The Respondents To Be Registered
As Physicians
The function of mandamus is not to establish a right but
to enforce one that has been established by law. If no
legal right has been violated, there can be no application
of a legal remedy, and the writ of mandamus is a legal
remedy for a legal right. There must be a well-defined,
clear and certain legal right to the thing demanded. It is
long established rule that a license to practice medicine is
a privilege or franchise granted by the government.
It is true that this Court has upheld the constitutional
right of every citizen to select a profession or course of
study subject to a fair, reasonable, and equitable
admission and academic requirements. But like all rights
and freedoms guaranteed by the Charter, their exercise
may be so regulated pursuant to the police power of the
State to safeguard health, morals, peace, education,
order, safety, and general welfare of the people. Thus,
persons who desire to engage in the learned professions
requiring scientific or technical knowledge may be
required to take an examination as a prerequisite to
engaging in their chosen careers. This regulation takes
particular pertinence in the field of medicine, to protect
the public from the potentially deadly effects of
incompetence and ignorance among those who would
practice medicine. In a previous case, it may be recalled,
this Court has ordered the Board of Medical Examiners to
annul both its resolution and certificate authorizing a
Spanish subject, with the degree of Licentiate in Medicine
and Surgery from the University of Barcelona, Spain, to
practice medicine in the Philippines, without first passing
the examination required by the Philippine Medical Act. In
another case worth noting, we upheld the power of the
State to upgrade the selection of applicants into medical
schools through admission tests.
It must be stressed, nevertheless, that the power to
regulate the exercise of a profession or pursuit of an
occupation cannot be exercised by the State or its agents
in an arbitrary, despotic, or oppressive manner. A political
body that regulates the exercise of a particular privilege
has the authority to both forbid and grant such privilege in
accordance with certain conditions. Such conditions may
not, however, require giving up ones constitutional rights
as a condition to acquiring the license. Under the view
that the legislature cannot validly bestow an arbitrary
power to grant or refuse a license on a public agency or
officer, courts will generally strike down license legislation
that vests in public officials discretion to grant or refuse a
license to carry on some ordinarily lawful business,
profession, or activity without prescribing definite rules
and conditions for the guidance of said officials in the
exercise of their power.
In the present case, the aforementioned guidelines are
provided for in Rep. Act No. 2382, as amended, which
prescribes the requirements for admission to the practice
of medicine, the qualifications of candidates for the board
examinations, the scope and conduct of the
examinations, the grounds for denying the issuance of a
physicians license, or revoking a license that has been
issued. Verily, to be granted the privilege to practice
medicine, the applicant must show that he possesses all
the qualifications and none of the
disqualifications. Furthermore, it must appear that he has
fully complied with all the conditions and requirements
imposed by the law and the licensing authority. Should
doubt taint or mar the compliance as being less than
satisfactory, then the privilege will not issue. For said
privilege is distinguishable from a matter of right, which
may be demanded if denied. Thus, without a definite
showing that the aforesaid requirements and conditions
have been satisfactorily met, the courts may not grant the
writ of mandamus to secure said privilege without
thwarting the legislative will.
3. On the Ripeness of the Petition for Mandamus
Lastly, the petitioners herein contend that the Court of
Appeals should have dismissed the petition for
mandamus below for being premature. They argue that
the administrative remedies had not been exhausted. The
records show that this is not the first time that petitioners
have sought the dismissal of Civil Case No. 93-66530.
This issue was raised in G.R. No. 115704, which petition
we referred to the Court of Appeals, where it was
docketed as CA-G.R. SP No. 34506. On motion for
reconsideration in CA-G.R. SP No. 34506, the appellate
court denied the motion to dismiss on the ground that the
prayers for the nullification of the order of the trial court
and the dismissal of Civil Case No. 93-66530 were
inconsistent reliefs. In G.R. No. 118437, the petitioners
sought to nullify the decision of the Court of Appeals in
CA-G.R. SP No. 34506 insofar as it did not order the
dismissal of Civil Case No. 93-66530. In our consolidated
decision, dated July 9, 1998, in G.R. Nos. 117817 &
118437, this Court speaking through Justice Bellosillo
opined that:
Indeed, the issue as to whether the Court of Appeals
erred in not ordering the dismissal of Civil Case No. 93-
66530 sought to be resolved in the instant petition has
been rendered meaningless by an event taking place
prior to the filing of this petition and denial thereof should
follow as a logical consequence. There is no longer any
justiciable controversy so that any declaration thereon
would be of no practical use or value. It should be
recalled that in its decision of 19 December 1994 the trial
court granted the writ of mandamus prayed for by private
respondents, which decision was received by petitioners
on 20 December 1994. Three (3) days after, or on 23
December 1994, petitioners filed the instant petition. By
then, the remedy available to them was to appeal the
decision to the Court of Appeals, which they in fact did, by
filing a notice of appeal on 26 December 1994.
The petitioners have shown no cogent reason for us to
reverse the aforecited ruling. Nor will their reliance upon
the doctrine of the exhaustion of administrative remedies
in the instant case advance their cause any.
Section 26 of the Medical Act of 1959 provides for the
administrative and judicial remedies that respondents
herein can avail to question Resolution No. 26 of the
Board of Medicine, namely: (a) appeal the unfavorable
judgment to the PRC; (b) should the PRC ruling still be
unfavorable, to elevate the matter on appeal to the Office
of the President; and (c) should they still be unsatisfied, to
ask for a review of the case or to bring the case to
court via a special civil action of certiorari. Thus, as a rule,
mandamus will not lie when administrative remedies are
still available. However, the doctrine of exhaustion of
administrative remedies does not apply where, as in this
case, a pure question of law is raised. On this issue, no
reversible error may, thus, be laid at the door of the
appellate court in CA-G.R. SP No. 37283, when it refused
to dismiss Civil Case No. 93-66530.
As we earlier pointed out, herein respondents Arnel V.
Herrera, Fernando F. Mandapat, Ophelia C. Hidalgo,
Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T.
Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-
Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette
H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M.
Santos, Maritel M. Echiverri, Bernadette C. Escusa,
Carlosito C. Domingo, Alicia S. Lizano, Elnora R.
Raqueno-Rabaino, Saibzur N. Edding, Derileen D.
Dorado-Edding, Robert B. Sanchez, Maria Rosario
Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-
Palma, Margarita Belinda L. Vicencio-Gamilla,
Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin
C. Arriola-Ocampo, and Jose Ramoncito P. Navarro
manifested to the Court of Appeals during the pendency
of CA-G.R. SP No. 37283, that they were no longer
interested in proceeding with the case and moved for its
dismissal insofar as they were concerned. A similar
manifestation and motion were later filed by intervenors
Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma
G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabarra,
Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B.
Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda,
Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D.
Francisco, Violeta V. Meneses, Melita J. Caedo, Clarisa
SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano,
Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and
Melvin M. Usita. Following these manifestations and
motions, the appellate court in CA-G.R. SP No. 37283
decreed that its ruling would not apply to them. Thus,
inasmuch as the instant case is a petition for review of the
appellate courts ruling in CA-G.R. SP No. 37283, a
decision which is inapplicable to the aforementioned
respondents will similarly not apply to them.
As to Achilles J. Peralta, Evelyn O. Ramos, Sally B.
Bunagan, Rogelio B. Ancheta, Oscar H. Padua, Jr.,
Evelyn D. Grajo, Valentino P. Arboleda, Carlos M.
Bernardo, Jr., Mario D. Cuaresma, Violeta C. Felipe,
Percival H. Pangilinan, Corazon M. Cruz and Samuel B.
Bangoy, herein decision shall not apply pursuant to the
Orders of the trial court in Civil Case No. 93-66530,
dropping their names from the suit.
Consequently, this Decision is binding only on the
remaining respondents, namely: Arlene V. de Guzman,
Celerina S. Navarro, Rafael I. Tolentino, Bernardita B. Sy,
Gloria T. Jularbal, Hubert S. Nazareno, Nancy J. Chavez,
Ernesto L. Cue, Herminio V. Fernandez, Jr., Maria
Victoria M. Lacsamana and Merly D. Sta. Ana, as well as
the petitioners.
WHEREFORE, the instant petition
is GRANTED. Accordingly, (1) the assailed decision
dated May 16, 2000, of the Court of Appeals, in CA-G.R.
SP No. 37283, which affirmed the judgment dated
December 19, 1994, of the Regional Trial Court of Manila,
Branch 52, in Civil Case No. 93-66530, ordering
petitioners to administer the physicians oath to herein
respondents as well as the resolution dated August 25,
2000, of the appellate court, denying the petitioners
motion for reconsideration, are REVERSED and SET
ASIDE; and (2) the writ of mandamus, issued in Civil
Case No. 93-66530, and affirmed by the appellate court
in CA-G.R. SP No. 37283 is NULLIFIED AND SET
ASIDE.
SO ORDERED.
===========================================
G.R. No. 120095. August 5, 1996
JMM PROMOTION AND MANAGEMENT, INC. v.
COURT OF APPEALS
KAPUNAN, J.:
The limits of government regulation under the State's
Police Power are once again at the vortex of the instant
controversy. Assailed is the government's power to
control deployment of female entertainers to Japan by
requiring an Artist Record Book (ARB) as a precondition
to the processing by the POEA of any contract for
overseas employment. By contending that the right to
overseas employment, is a property right within the
meaning of the Constitution, petitioners vigorously aver
that deprivation thereof allegedly through the onerous
requirement of an ARB violates the due process clause
and constitutes an invalid exercise of the police power.
The factual antecedents are undisputed.
Following the much-publicized death of Maricris Sioson in
1991, former President Corazon C. Aquino ordered a total
ban against the deployment of performing artists to Japan
and other foreign destinations. The ban was, however,
rescinded after leaders of the overseas employment
industry promised to extend full support for a program
aimed at removing kinks in the system of deployment. In
its place, the government, through the Secretary of Labor
and Employment, subsequently issued Department Order
No. 28, creating the Entertainment Industry Advisory
Council (EIAC), which was tasked with issuing guidelines
on the training, testing certification and deployment of
performing artists abroad.
Pursuant to the EIAC's recommendations, the Secretary
of Labor, on January 6, 1994, issued Department Order
No. 3 establishing various procedures and requirements
for screening performing artists under a new system of
training, testing, certification and deployment of the
former. Performing artists successfully hurdling the test,
training and certification requirement were to be issued
an Artist's Record Book (ARB), a necessary prerequisite
to processing of any contract of employment by the
POEA. Upon request of the industry, implementation of
the process, originally scheduled for April 1, 1994, was
moved to October 1, 1994.
Thereafter, the Department of Labor, following the EIAC's
recommendation, issued a series of orders fine-tuning
and implementing the new system. Prominent among
these orders were the following issuances:
1. Department Order No. 3-A, providing for additional
guidelines on the training, testing, certification and
deployment of performing artists.
2. Department Order No. 3-B, pertaining to the Artist
Record Book (ARB) requirement, which could be
processed only after the artist could show proof of
academic and skills training and has passed the required
tests.
3. Department Order No. 3-E, providing the minimum
salary a performing artist ought to receive (not less than
US$600.00 for those bound for Japan) and the authorized
deductions therefrom.
4. Department Order No. 3-F, providing for the guidelines
on the issuance and use of the ARB by returning
performing artists who, unlike new artists, shall only
undergo a Special Orientation Program (shorter than the
basic program) although they must pass the academic
test.
In Civil Case No. 95-72750, the Federation of
Entertainment Talent Managers of the Philippines
(FETMOP), on January 27, 1995 filed a class suit
assailing these department orders, principally contending
that said orders 1) violated the constitutional right to
travel; 2) abridged existing contracts for employment; and
3) deprived individual artists of their licenses without due
process of law. FETMOP, likewise, averred that the
issuance of the Artist Record Book (ARB) was
discriminatory and illegal and "in gross violation of the
constitutional right... to life liberty and property." Said
Federation consequently prayed for the issuance of a writ
of preliminary injunction against the aforestated orders.
On February 2, 1992, JMM Promotion and Management,
Inc. and Kary International, Inc., herein petitioners, filed a
Motion for Intervention in said civil case, which was
granted by the trial court in an Order dated 15 February,
1995.
However, on February 21, 1995, the trial court issued an
Order denying petitioners' prayer for a writ of preliminary
injunction and dismissed the complaint.
On appeal from the trial court's Order, respondent court,
in CA G.R. SP No. 36713 dismissed the same. Tracing
the circumstances which led to the issuance of the ARB
requirement and the assailed Department Order,
respondent court concluded that the issuances
constituted a valid exercise by the state of the police
power.
We agree.
The latin maxim salus populi est suprema lex embodies
the character of the entire spectrum of public laws aimed
at promoting the general welfare of the people under the
State's police power. As an inherent attribute of
sovereignty which virtually "extends to all public
needs," this "least limitable" of governmental powers
grants a wide panoply of instruments through which the
state, as parens patriae gives effect to a host of its
regulatory powers.
Describing the nature and scope of the police power,
Justice Malcolm, in the early case of Rubi v. Provincial
Board of Mindoro wrote:
"The police power of the State," one court has said...'is a
power coextensive with self-protection, and is not inaptly
termed 'the law of overruling necessity.' It may be said to
be that inherent and plenary power in the state which
enables it to prohibit all things hurtful to the comfort,
safety and welfare of society.' Carried onward by the
current of legislature, the judiciary rarely attempts to dam
the onrushing power of legislative discretion, provided the
purposes of the law do not go beyond the great principles
that mean security for the public welfare or do not
arbitrarily interfere with the right of the individual."
Thus, police power concerns government enactments
which precisely interfere with personal liberty or property
in order to promote the general welfare or the common
good. As the assailed Department Order enjoys a
presumed validity, it follows that the burden rests upon
petitioners to demonstrate that the said order, particularly,
its ARB requirement, does not enhance the public welfare
or was exercised arbitrarily or unreasonably.
A thorough review of the facts and circumstances leading
to the issuance of the assailed orders compels us to rule
that the Artist Record Book requirement and the
questioned Department Order related to its issuance were
issued by the Secretary of Labor pursuant to a valid
exercise of the police power.
In 1984, the Philippines emerged as the largest labor
sending country in Asia dwarfing the labor export of
countries with mammoth populations such as India and
China. According to the National Statistics Office,
this diaspora was augmented annually by over 450,000
documented and clandestine or illegal (undocumented)
workers who left the country for various destinations
abroad, lured by higher salaries, better work opportunities
and sometimes better living conditions.
Of the hundreds of thousands of workers who left the
country for greener pastures in the last few years, women
composed slightly close to half of those deployed,
constituting 47% between 1987-1991, exceeding this
proportion (58%) by the end of 1991, the year former
President Aquino instituted the ban on deployment of
performing artists to Japan and other countries as a result
of the gruesome death of Filipino entertainer Maricris
Sioson.
It was during the same period that this Court took judicial
notice not only of the trend, but also of the fact that most
of our women, a large number employed as domestic
helpers and entertainers, worked under exploitative
conditions "marked by physical and personal abuse."
Even then, we noted that "[t]he sordid tales of
maltreatment suffered by migrant Filipina workers, even
rape and various forms of torture, confirmed by
testimonies of returning workers" compelled "urgent
government action."
Pursuant to the alarming number of reports that a
significant number of Filipina performing artists ended up
as prostitutes abroad (many of whom were beaten,
drugged and forced into prostitution), and following the
deaths of a number of these women, the government
began instituting measures aimed at deploying only those
individuals who met set standards which would qualify
them as legitimate performing artists. In spite of these
measures, however, a number of our countrymen have
nonetheless fallen victim to unscrupulous recruiters,
ending up as virtual slaves controlled by foreign crime
syndicates and forced into jobs other than those indicated
in their employment contracts. Worse, some of our
women have been forced into prostitution.
Thus, after a number of inadequate and failed
accreditation schemes, the Secretary of Labor issued on
August 16, 1993, D.O. No. 28, establishing the
Entertainment Industry Advisory Council (EIAC), the
policy advisory body of DOLE on entertainment industry
matters. Acting on the recommendations of the said body,
the Secretary of Labor, on January 6, 1994, issued the
assailed orders. These orders embodied EIAC's
Resolution No. 1, which called for guidelines on
screening, testing and accrediting performing overseas
Filipino artists. Significantly, as the respondent court
noted, petitioners were duly represented in the EIAC,
which gave the recommendations on which the ARB and
other requirements were based.
Clearly, the welfare of Filipino performing artists,
particularly the women was paramount in the issuance of
Department Order No. 3. Short of a total and absolute
ban against the deployment of performing artists to "high
risk" destinations, a measure which would only drive
recruitment further underground, the new scheme at the
very least rationalizes the method of screening
performing artists by requiring reasonable educational
and artistic skills from them and limits deployment to only
those individuals adequately prepared for the
unpredictable demands of employment as artists
abroad. It cannot be gainsaid that this scheme at least
lessens the room for exploitation by unscrupulous
individuals and agencies.
Moreover, here or abroad, selection of performing artists
is usually accomplished by auditions, where those
deemed unfit are usually weeded out through a process
which is inherently subjective and vulnerable to bias and
differences in taste. The ARB requirement goes one step
further, however, attempting to minimize the subjectivity
of the process by defining the minimum skills required
from entertainers and performing artists. As the Solicitor
General observed, this should be easily met by
experienced artists possessing merely basic skills. The
tests are aimed at segregating real artists or performers
from those passing themselves off as such, eager to
accept any available job and therefore exposing
themselves to possible exploitation.
As to the other provisions of Department Order No. 3
questioned by petitioners, we see nothing wrong with the
requirement for document and booking confirmation (D.O.
3-C), a minimum salary scale (D.O. 3-E), or the
requirement for registration of returning performers. The
requirement for a venue certificate or other documents
evidencing the place and nature of work allows the
government closer monitoring of foreign employers and
helps keep our entertainers away from prostitution fronts
and other worksites associated with unsavory, immoral,
illegal or exploitative practices. Parenthetically, none of
these issuances appear to us, by any stretch of the
imagination, even remotely unreasonable or
arbitrary. They address a felt need of according greater
protection for an oft-exploited segment of our
OCW's. They respond to the industry's demand for
clearer and more practicable rules and guidelines. Many
of these provisions were fleshed out following
recommendations by, and after consultations with, the
affected sectors and non-government organizations. On
the whole, they are aimed at enhancing the safety and
security of entertainers and artists bound for Japan and
other destinations, without stifling the industry's concerns
for expansion and growth.
In any event, apart from the State's police power, the
Constitution itself mandates government to extend the
fullest protection to our overseas workers. The basic
constitutional statement on labor, embodied in Section 18
of Article II of the Constitution provides:
Sec. 18. The State affirms labor as a primary social
economic force. It shall protect the rights of workers and
promote their welfare.
More emphatically, the social justice provision on labor of
the 1987 Constitution in its first paragraph states:
The State shall afford full protection to labor, local and
overseas, organized and unorganized and promote full
employment and equality of employment opportunities for
all.
Obviously, protection to labor does not indicate promotion
of employment alone. Under the welfare and social justice
provisions of the Constitution, the promotion of full
employment, while desirable, cannot take a backseat to
the government's constitutional duty to provide
mechanisms for the protection of our workforce, local or
overseas. As this Court explained in Philippine
Association of Service Exporters (PASEI) v. Drilon, in
reference to the recurring problems faced by our
overseas workers:
What concerns the Constitution more paramountly is that
such an employment be above all, decent, just, and
humane. It is bad enough that the country has to send its
sons and daughters to strange lands because it cannot
satisfy their employment needs at home. Under these
circumstances, the Government is duty-bound to insure
that our toiling expatriates have adequate protection,
personally and economically, while away from home.
We now go to petitioners' assertion that the police power
cannot, nevertheless, abridge the right of our performing
workers to return to work abroad after having earlier
qualified under the old process, because, having
previously been accredited, their accreditation became a
property right," protected by the due process clause. We
find this contention untenable.
A profession, trade or calling is a property right within the
meaning of our constitutional guarantees. One cannot be
deprived of the right to work and the right to make a living
because these rights are property rights, the arbitrary and
unwarranted deprivation of which normally constitutes an
actionable wrong.
Nevertheless, no right is absolute, and the proper
regulation of a profession, calling, business or trade has
always been upheld as a legitimate subject of a valid
exercise of the police power by the state particularly when
their conduct affects either the execution of legitimate
governmental functions, the preservation of the State, the
public health and welfare and public morals. According to
the maxim, sic utere tuo ut alienum non laedas, it must of
course be within the legitimate range of legislative action
to define the mode and manner in which every one may
so use his own property so as not to pose injury to
himself or others.
In any case, where the liberty curtailed affects at most the
rights of property, the permissible scope of regulatory
measures is certainly much wider. To pretend that
licensing or accreditation requirements violates the due
process clause is to ignore the settled practice, under the
mantle of the police power, of regulating entry to the
practice of various trades or professions. Professionals
leaving for abroad are required to pass rigid written and
practical exams before they are deemed fit to practice
their trade. Seamen are required to take tests determining
their seamanship. Locally, the Professional Regulation
Commission has began to require previously licensed
doctors and other professionals to furnish documentary
proof that they had either re-trained or had undertaken
continuing education courses as a requirement for
renewal of their licenses. It is not claimed that these
requirements pose an unwarranted deprivation of a
property right under the due process clause. So long as
Professionals and other workers meet reasonable
regulatory standards no such deprivation exists.
Finally, it is a futile gesture on the part of petitioners to
invoke the non-impairment clause of the Constitution to
support their argument that the government cannot enact
the assailed regulatory measures because they abridge
the freedom to contract. In Philippine Association of
Service Exporters, Inc. vs. Drilon, we held that "[t]he non-
impairment clause of the Constitution... must yield to the
loftier purposes targeted by the government." Equally
important, into every contract is read provisions of
existing law, and always, a reservation of the police
power for so long as the agreement deals with a subject
impressed with the public welfare.
A last point. Petitioners suggest that the singling out of
entertainers and performing artists under the assailed
department orders constitutes class legislation which
violates the equal protection clause of the
Constitution. We do not agree.
The equal protection clause is directed principally against
undue favor and individual or class privilege. It is not
intended to prohibit legislation which is limited to the
object to which it is directed or by the territory in which it
is to operate. It does not require absolute equality, but
merely that all persons be treated alike under like
conditions both as to privileges conferred and liabilities
imposed. We have held, time and again, that the equal
protection clause of the Constitution does not forbid
classification for so long as such classification is based
on real and substantial differences having a reasonable
relation to the subject of the particular legislation. If
classification is germane to the purpose of the law,
concerns all members of the class, and applies equally to
present and future conditions, the classification does not
violate the equal protection guarantee.
In the case at bar, the challenged Department Order
clearly applies to all performing artists and entertainers
destined for jobs abroad. These orders, we stressed
hereinbefore, further the Constitutional mandate requiring
Government to protect our workforce, particularly those
who may be prone to abuse and exploitation as they are
beyond the physical reach of government regulatory
agencies. The tragic incidents must somehow stop, but
short of absolutely curtailing the right of these performers
and entertainers to work abroad, the assailed measures
enable our government to assume a measure of control.
WHEREFORE, finding no reversible error in the decision
sought to be reviewed, petition is hereby DENIED.
SO ORDERED.
==========================================
G.R. No. L-42571-72 July 25, 1983
DE LA CRUZ v. PARAS, 123 SCRA 569
FERNANDO, C.J.:
The crucial question posed by this certiorari proceeding is
whether or not a municipal corporation, Bocaue, Bulacan,
represented by respondents, can, prohibit the exercise of
a lawful trade, the operation of night clubs, and the
pursuit of a lawful occupation, such clubs employing
hostesses. It is contended that the ordinance assailed as
invalid is tainted with nullity, the municipality being devoid
of power to prohibit a lawful business, occupation or
calling, petitioners at the same time alleging that their
rights to due process and equal protection of the laws
were violated as the licenses previously given to them
was in effect withdrawn without judicial hearing
The assailed ordinance is worded as follows: "Section
1.— Title of Ordinance.— This Ordinance shall be known
and may be cited as the [Prohibition and Closure
Ordinance] of Bocaue, Bulacan. Section 2. — Definitions
of Terms — (a) 'Night Club' shall include any place or
establishment selling to the public food or drinks where
customers are allowed to dance. (b) 'Cabaret' or 'Dance
Hall' shall include any place or establishment where
dancing is permitted to the public and where professional
hostesses or hospitality girls and professional dancers
are employed. (c) 'Professional hostesses' or 'hospitality
girls' shall include any woman employed by any of the
establishments herein defined to entertain guests and
customers at their table or to dance with them. (d)
'Professional dancer' shall include any woman who
dances at any of the establishments herein defined for a
fee or remuneration paid directly or indirectly by the
operator or by the persons she dances with. (e) 'Operator'
shall include the owner, manager, administrator or any
person who operates and is responsible for the operation
of any night club, cabaret or dance hall. Section 3. —
Prohibition in the Issuance and Renewal of Licenses,
Permits. — Being the principal cause in the decadence of
morality and because of their other adverse effects on
this community as explained above, no operator of night
clubs, cabarets or dance halls shall henceforth be issued
permits/licenses to operate within the jurisdiction of the
municipality and no license/permit shall be issued to any
professional hostess, hospitality girls and professional
dancer for employment in any of the aforementioned
establishments. The prohibition in the issuance of
licenses/permits to said persons and operators of said
establishments shall include prohibition in the renewal
thereof. Section 4.— Revocation of Permits and
Licenses.— The licenses and permits issued to operators
of night clubs, cabarets or dance halls which are now in
operation including permits issued to professional
hostesses, hospitality girls and professional dancers are
hereby revoked upon the expiration of the thirty-day
period given them as provided in Section 8 hereof and
thenceforth, the operation of these establishments within
the jurisdiction of the municipality shall be illegal. Section
5.— Penalty in case of violation. — Violation of any of the
provisions of this Ordinance shall be punishable by
imprisonment not exceeding three (3) months or a fine
not exceeding P200.00 or both at the discretion of the
Court. If the offense is committed by a juridical entity, the
person charged with the management and/or operation
thereof shall be liable for the penalty provided herein.
Section 6. — Separability Clause.— If, for any reason,
any section or provision of this Ordinance is held
unconstitutional or invalid, no other section or provision
hereof shall be affected thereby. Section 7.— Repealing
Clause.— All ordinance, resolutions, circulars,
memoranda or parts thereof that are inconsistent with the
provisions of this Ordinance are hereby repealed. Section
8.— Effectivity.— This Ordinance shall take effect
immediately upon its approval; provided, however, that
operators of night clubs, cabarets and dance halls now in
operation including professional hostesses, hospitality
girls and professional dancers are given a period of thirty
days from the approval hereof within which to wind up
their businesses and comply with the provisions of this
Ordinance."
On November 5, 1975, two cases for prohibition with
preliminary injunction were filed with the Court of First
Instance of Bulacan. The grounds alleged follow:
1. Ordinance No. 84 is null and void as a municipality has
no authority to prohibit a lawful business, occupation or
calling.
2. Ordinance No. 84 is violative of the petitioners' right to
due process and the equal protection of the law, as the
license previously given to petitioners was in effect
withdrawn without judicial hearing. 3. That under
Presidential Decree No. 189, as amended, by
Presidential Decree No. 259, the power to license and
regulate tourist-oriented businesses including night clubs,
has been transferred to the Department of Tourism." The
cases were assigned to respondent Judge, now
Associate Justice Paras of the Intermediate Appellate
Court, who issued a restraining order on November 7,
1975. The answers were thereafter filed. It was therein
alleged: " 1. That the Municipal Council is authorized by
law not only to regulate but to prohibit the establishment,
maintenance and operation of night clubs invoking
Section 2243 of the RAC, CA 601, Republic Acts Nos.
938, 978 and 1224. 2. The Ordinance No. 84 is not
violative of petitioners' right to due process and the equal
protection of the law, since property rights are
subordinate to public interests. 3. That Presidential
Decree No. 189, as amended, did not deprive Municipal
Councils of their jurisdiction to regulate or prohibit night
clubs." There was the admission of the following facts as
having been established: "l. That petitioners Vicente de la
Cruz, et al. in Civil Case No. 4755-M had been previously
issued licenses by the Municipal Mayor of Bocaue-
petitioner Jose Torres III, since 1958; petitioner Vicente
de la Cruz, since 1960; petitioner Renato Alipio, since
1961 and petitioner Leoncio Corpuz, since 1972; 2. That
petitioners had invested large sums of money in their
businesses; 3. That the night clubs are well-lighted and
have no partitions, the tables being near each other; 4.
That the petitioners owners/operators of these clubs do
not allow the hospitality girls therein to engage in immoral
acts and to go out with customers; 5. That these
hospitality girls are made to go through periodic medical
check-ups and not one of them is suffering from any
venereal disease and that those who fail to submit to a
medical check-up or those who are found to be infected
with venereal disease are not allowed to work; 6. That the
crime rate there is better than in other parts of Bocaue or
in other towns of Bulacan." Then came on January 15,
1976 the decision upholding the constitutionality and
validity of Ordinance No. 84 and dismissing the cases.
Hence this petition for certiorari by way of appeal.
In an exhaustive as well as scholarly opinion, the lower
court dismissed the petitions. Its rationale is set forth in
the opening paragraph thus: "Those who lust cannot last.
This in essence is why the Municipality of Bocaue,
Province of Bulacan, stigmatized as it has been by
innuendos of sexual titillation and fearful of what the
awesome future holds for it, had no alternative except to
order thru its legislative machinery, and even at the risk of
partial economic dislocation, the closure of its night clubs
and/or cabarets. This in essence is also why this Court,
obedient to the mandates of good government, and
cognizant of the categorical imperatives of the current
legal and social revolution, hereby [upholds] in the name
of police power the validity and constitutionality of
Ordinance No. 84, Series of 1975, of the Municipal
Council of Bocaue, Bulacan. The restraining orders
heretofore issued in these two cases are therefore hereby
rifted, effective the first day of February, 1976, the
purpose of the grace period being to enable the
petitioners herein to apply to the proper appellate
tribunals for any contemplated redress." This Court is,
however, unable to agree with such a conclusion and for
reasons herein set forth, holds that reliance on the police
power is insufficient to justify the enactment of the
assailed ordinance. It must be declared null and void.
1. Police power is granted to municipal corporations in
general terms as follows: "General power of council to
enact ordinances and make regulations. - The municipal
council shall enact such ordinances and make such
regulations, not repugnant to law, as may be necessary to
carry into effect and discharge the powers and duties
conferred upon it by law and such as shall seem
necessary and proper to provide for the health and safety,
promote the prosperity, improve the morals, peace, good
order, comfort, and convenience of the municipality and
the inhabitants thereof, and for the protection of property
therein." It is practically a reproduction of the former
Section 39 of Municipal Code. An ordinance enacted by
virtue thereof, according to Justice Moreland, speaking
for the Court in the leading case of United States v.
Abendan "is valid, unless it contravenes the fundamental
law of the Philippine Islands, or an Act of the Philippine
Legislature, or unless it is against public policy, or is
unreasonable, oppressive, partial, discriminating, or in
derogation of common right. Where the power to legislate
upon a given subject, and the mode of its exercise and
the details of such legislation are not prescribed, the
ordinance passed pursuant thereto must be a reasonable
exercise of the power, or it will be pronounced invalid." In
another leading case, United States v.
Salaveria, the ponente this time being Justice Malcolm,
where the present Administrative Code provision was
applied, it was stated by this Court: "The general welfare
clause has two branches: One branch attaches itself to
the main trunk of municipal authority, and relates to such
ordinances and regulations as may be necessary to carry
into effect and discharge the powers and duties conferred
upon the municipal council by law. With this class we are
not here directly concerned. The second branch of the
clause is much more independent of the specific functions
of the council which are enumerated by law. It authorizes
such ordinances as shall seem necessary and proper to
provide for the health and safety, promote the prosperity,
improve the morals, peace, good order, comfort, and
convenience of the municipality and the inhabitants
thereof, and for the protection of property therein.' It is a
general rule that ordinances passed by virtue of the
implied power found in the general welfare clause must
be reasonable, consonant with the general powersand
purposes of the corporation, and not inconsistent with the
laws or policy of the State." If night clubs were merely
then regulated and not prohibited, certainly the assailed
ordinance would pass the test of validity. In the two
leading cases above set forth, this Court had stressed
reasonableness, consonant with the general powers and
purposes of municipal corporations, as well as
consistency with the laws or policy of the State. It cannot
be said that such a sweeping exercise of a lawmaking
power by Bocaue could qualify under the term
reasonable. The objective of fostering public morals, a
worthy and desirable end can be attained by a measure
that does not encompass too wide a field. Certainly the
ordinance on its face is characterized by overbreadth.
The purpose sought to be achieved could have been
attained by reasonable restrictions rather than by an
absolute prohibition. The admonition in Salaveria should
be heeded: "The Judiciary should not lightly set aside
legislative action when there is not a clear invasion of
personal or property rights under the guise of police
regulation." It is clear that in the guise of a police
regulation, there was in this instance a clear invasion of
personal or property rights, personal in the case of those
individuals desirous of patronizing those night clubs and
property in terms of the investments made and salaries to
be earned by those therein employed.
2. The decision now under review refers to Republic Act
No. 938 as amended. It was originally enacted on June
20, 1953. It is entitled: "AN ACT GRANTING MUNICIPAL
OR CITY BOARDS AND COUNCILS THE POWER TO
REGULATE THE ESTABLISHMENT, MAINTENANCE
AND OPERATION OF CERTAIN PLACES OF
AMUSEMENT WITHIN THEIR RESPECTIVE
TERRITORIAL JURISDICTIONS.' Its first section insofar
as pertinent reads: "The municipal or city board or council
of each chartered city shall have the power to regulate by
ordinance the establishment, maintenance and operation
of night clubs, cabarets, dancing schools, pavilions,
cockpits, bars, saloons, bowling alleys, billiard pools, and
other similar places of amusement within its territorial
jurisdiction: ... " Then on May 21, 1954, the first section
was amended to include not merely "the power to
regulate, but likewise "Prohibit ... " The title, however,
remained the same. It is worded exactly as Republic Act
No. 938. It is to be admitted that as thus amended, if only
the above portion of the Act were considered, a municipal
council may go as far as to prohibit the operation of night
clubs. If that were all, then the appealed decision is not
devoid of support in law. That is not all, however. The title
was not in any way altered. It was not changed one whit.
The exact wording was followed. The power granted
remains that of regulation, not prohibition. There is thus
support for the view advanced by petitioners that to
construe Republic Act No. 938 as allowing the prohibition
of the operation of night clubs would give rise to a
constitutional question. The Constitution mandates:
"Every bill shall embrace only one subject which shall be
expressed in the title thereof. " Since there is no dispute
as the title limits the power to regulating, not prohibiting, it
would result in the statute being invalid if, as was done by
the Municipality of Bocaue, the operation of a night club
was prohibited. There is a wide gap between the exercise
of a regulatory power "to provide for the health and
safety, promote the prosperity, improve the morals, in the
language of the Administrative Code, such competence
extending to all "the great public needs, to quote from
Holmes, and to interdict any calling, occupation, or
enterprise. In accordance with the well-settled principle of
constitutional construction that between two possible
interpretations by one of which it will be free from
constitutional infirmity and by the other tainted by such
grave defect, the former is to be preferred. A construction
that would save rather than one that would affix the seal
of doom certainly commends itself. We have done so
before We do so again.
3. There is reinforcement to the conclusion reached by
virtue of a specific provision of the recently-enacted Local
Government Code. The general welfare clause, a
reiteration of the Administrative Code provision, is set
forth in the first paragraph of Section 149 defining the
powers and duties of the sangguniang bayan. It read as
follows: "(a) Enact such ordinances and issue such
regulations as may be necessary to carry out and
discharge the responsibilities conferred upon it by law,
and such as shall be necessary and proper to provide for
the health, safety, comfort and convenience, maintain
peace and order, improve public morals, promote the
prosperity and general welfare of the municipality and the
inhabitants thereof, and insure the protection of property
therein; ..." There are in addition provisions that may
have a bearing on the question now before this Court.
Thus the sangguniang bayanshall "(rr) Regulate cafes,
restaurants, beer-houses, hotels, motels, inns, pension
houses and lodging houses, except travel agencies,
tourist guides, tourist transports, hotels, resorts, de luxe
restaurants, and tourist inns of international standards
which shall remain under the licensing and regulatory
power of the Ministry of Tourism which shall exercise
such authority without infringing on the taxing or
regulatory powers of the municipality; (ss) Regulate public
dancing schools, public dance halls, and sauna baths or
massage parlors; (tt) Regulate the establishment and
operation of billiard pools, theatrical performances,
circuses and other forms of entertainment; ..." It is clear
that municipal corporations cannot prohibit the operation
of night clubs. They may be regulated, but not prevented
from carrying on their business. It would be, therefore, an
exercise in futility if the decision under review were
sustained. All that petitioners would have to do is to apply
once more for licenses to operate night clubs. A refusal to
grant licenses, because no such businesses could legally
open, would be subject to judicial correction. That is to
comply with the legislative will to allow the operation and
continued existence of night clubs subject to appropriate
regulations. In the meanwhile, to compel petitioners to
close their establishments, the necessary result of an
affirmance, would amount to no more than a temporary
termination of their business. During such time, their
employees would undergo a period of deprivation.
Certainly, if such an undesirable outcome can be
avoided, it should be. The law should not be susceptible
to the reproach that it displays less than sympathetic
concern for the plight of those who, under a mistaken
appreciation of a municipal power, were thus left without
employment. Such a deplorable consequence is to be
avoided. If it were not thus, then the element of
arbitrariness enters the picture. That is to pay less, very
much less, than full deference to the due process clause
with its mandate of fairness and reasonableness.
4. The conclusion reached by this Court is not to be
interpreted as a retreat from its resolute stand sustaining
police power legislation to promote public morals. The
commitment to such an Ideal forbids such a backward
step. Legislation of that character is deserving of the
fullest sympathy from the judiciary. Accordingly, the
judiciary has not been hesitant to lend the weight of its
support to measures that can be characterized as falling
within that aspect of the police power. Reference is made
by respondents to Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of
Manila. There is a misapprehension as to what was
decided by this Court. That was a regulatory measure.
Necessarily, there was no valid objection on due process
or equal protection grounds. It did not prohibit motels. It
merely regulated the mode in which it may conduct
business in order precisely to put an end to practices
which could encourage vice and immorality. This is an
entirely different case. What was involved is a measure
not embraced within the regulatory power but an exercise
of an assumed power to prohibit. Moreover, while it was
pointed out in the aforesaid Ermita-Malate Hotel and
Motel Operators Association, Inc. decision that there must
be a factual foundation of invalidity, it was likewise made
clear that there is no need to satisfy such a requirement if
a statute were void on its face. That it certainly is if the
power to enact such ordinance is at the most dubious and
under the present Local Government Code non-existent.
WHEREFORE, the writ of certiorari is granted and the
decision of the lower court dated January 15, 1976
reversed, set aside, and nullied. Ordinance No. 84, Series
of 1975 of the Municipality of Bocaue is declared void and
unconstitutional. The temporary restraining order issued
by this Court is hereby made permanent. No costs.
===========================================
G.R. No. L-18841 January 27, 1969
REPUBLIC v. PLDT, 26 SCRA 620
REYES, J.B.L., J.:
Direct appeals, upon a joint record on appeal, by both
the plaintiff and the defendant from the dismissal, after
hearing, by the Court of First Instance of Manila, in its
Civil Case No. 35805, of their respective complaint and
counterclaims, but making permanent a preliminary
mandatory injunction theretofore issued against the
defendant on the interconnection of telephone facilities
owned and operated by said parties.
The plaintiff, Republic of the Philippines, is a political
entity exercising governmental powers through its
branches and instrumentalities, one of which is the
Bureau of Telecommunications. That office was created
on 1 July 1947, under Executive Order No. 94, with the
following powers and duties, in addition to certain powers
and duties formerly vested in the Director of Posts:
SEC. 79. The Bureau of Telecommunications shall
exercise the following powers and duties:
(a) To operate and maintain existing wire-telegraph and
radio-telegraph offices, stations, and facilities, and those
to be established to restore the pre-war
telecommunication service under the Bureau of Posts, as
well as such additional offices or stations as may
hereafter be established to provide telecommunication
service in places requiring such service;
(b) To investigate, consolidate, negotiate for, operate and
maintain wire-telephone or radio telephone
communication service throughout the Philippines by
utilizing such existing facilities in cities, towns, and
provinces as may be found feasible and under such terms
and conditions or arrangements with the present owners
or operators thereof as may be agreed upon to the
satisfaction of all concerned;
(c) To prescribe, subject to approval by the Department
Head, equitable rates of charges for messages handled
by the system and/or for time calls and other services that
may be rendered by said system;
(d) To establish and maintain coastal stations to serve
ships at sea or aircrafts and, when public interest so
requires, to engage in the international
telecommunication service in agreement with other
countries desiring to establish such service with the
Republic of the Philippines; and
(e) To abide by all existing rules and regulations
prescribed by the International Telecommunication
Convention relative to the accounting, disposition and
exchange of messages handled in the international
service, and those that may hereafter be promulgated by
said convention and adhered to by the Government of the
Republic of the Philippines.
The defendant, Philippine Long Distance Telephone
Company (PLDT for short), is a public service corporation
holding a legislative franchise, Act 3426, as amended by
Commonwealth Act 407, to install, operate and maintain a
telephone system throughout the Philippines and to carry
on the business of electrical transmission of messages
within the Philippines and between the Philippines and
the telephone systems of other countries. The RCA
Communications, Inc., (which is not a party to the present
case but has contractual relations with the parties) is an
American corporation authorized to transact business in
the Philippines and is the grantee, by assignment, of a
legislative franchise to operate a domestic station for the
reception and transmission of long distance wireless
messages (Act 2178) and to operate broadcasting and
radio-telephone and radio-telegraphic communications
services (Act 3180).
Sometime in 1933, the defendant, PLDT, and the RCA
Communications, Inc., entered into an agreement
whereby telephone messages, coming from the United
States and received by RCA's domestic station, could
automatically be transferred to the lines of PLDT; and
vice-versa, for calls collected by the PLDT for
transmission from the Philippines to the United States.
The contracting parties agreed to divide the tolls, as
follows: 25% to PLDT and 75% to RCA. The sharing was
amended in 1941 to 30% for PLDT and 70% for RCA,
and again amended in 1947 to a 50-50 basis. The
arrangement was later extended to radio-telephone
messages to and from European and Asiatic countries.
Their contract contained a stipulation that either party
could terminate it on a 24-month notice to the other. On 2
February 1956, PLDT gave notice to RCA to terminate
their contract on 2 February 1958.
Soon after its creation in 1947, the Bureau of
Telecommunications set up its own Government
Telephone System by utilizing its own appropriation and
equipment and by renting trunk lines of the PLDT to
enable government offices to call private parties. 6 Its
application for the use of these trunk lines was in the
usual form of applications for telephone service,
containing a statement, above the signature of the
applicant, that the latter will abide by the rules and
regulations of the PLDT which are on file with the Public
Service Commission. One of the many rules prohibits the
public use of the service furnished the telephone
subscriber for his private use. The Bureau has extended
its services to the general public since 1948, using the
same trunk lines owned by, and rented from, the PLDT,
and prescribing its (the Bureau's) own schedule of
rates. Through these trunk lines, a Government
Telephone System (GTS) subscriber could make a call to
a PLDT subscriber in the same way that the latter could
make a call to the former.
On 5 March 1958, the plaintiff, through the Director of
Telecommunications, entered into an agreement with
RCA Communications, Inc., for a joint overseas
telephone service whereby the Bureau would convey
radio-telephone overseas calls received by RCA's station
to and from local residents. Actually, they inaugurated
this joint operation on 2 February 1958, under a
"provisional" agreement.
On 7 April 1958, the defendant Philippine Long Distance
Telephone Company, complained to the Bureau of
Telecommunications that said bureau was violating the
conditions under which their Private Branch Exchange
(PBX) is inter-connected with the PLDT's facilities,
referring to the rented trunk lines, for the Bureau had
used the trunk lines not only for the use of government
offices but even to serve private persons or the general
public, in competition with the business of the PLDT; and
gave notice that if said violations were not stopped by
midnight of 12 April 1958, the PLDT would sever the
telephone connections. When the PLDT received no
reply, it disconnected the trunk lines being rented by the
Bureau at midnight on 12 April 1958. The result was the
isolation of the Philippines, on telephone services, from
the rest of the world, except the United States.
At that time, the Bureau was maintaining 5,000
telephones and had 5,000 pending applications for
telephone connection. The PLDT was also maintaining
60,000 telephones and had also 20,000 pending
applications. Through the years, neither of them has
been able to fill up the demand for telephone service.
The Bureau of Telecommunications had proposed to the
PLDT on 8 January 1958 that both enter into an
interconnecting agreement, with the government paying
(on a call basis) for all calls passing through the
interconnecting facilities from the Government Telephone
System to the PLDT. The PLDT replied that it was willing
to enter into an agreement on overseas telephone service
to Europe and Asian countries provided that the Bureau
would submit to the jurisdiction and regulations of the
Public Service Commission and in consideration of 37
1/2% of the gross revenues. In its memorandum in lieu of
oral argument in this Court dated 9 February 1964, on
page 8, the defendant reduced its offer to 33 1/3 % (1/3)
as its share in the overseas telephone service. The
proposals were not accepted by either party.
On 12 April 1958, plaintiff Republic commenced suit
against the defendant, Philippine Long Distance
Telephone Company, in the Court of First Instance of
Manila (Civil Case No. 35805), praying in its complaint for
judgment commanding the PLDT to execute a contract
with plaintiff, through the Bureau, for the use of the
facilities of defendant's telephone system throughout the
Philippines under such terms and conditions as the court
might consider reasonable, and for a writ of preliminary
injunction against the defendant company to restrain the
severance of the existing telephone connections and/or
restore those severed.
Acting on the application of the plaintiff, and on the
ground that the severance of telephone connections by
the defendant company would isolate the Philippines from
other countries, the court a quo, on 14 April 1958, issued
an order for the defendant:
(1) to forthwith reconnect and restore the seventy-eight
(78) trunk lines that it has disconnected between the
facilities of the Government Telephone System, including
its overseas telephone services, and the facilities of
defendant; (2) to refrain from carrying into effect its threat
to sever the existing telephone communication between
the Bureau of Telecommunications and defendant, and
not to make connection over its telephone system of
telephone calls coming to the Philippines from foreign
countries through the said Bureau's telephone facilities
and the radio facilities of RCA Communications, Inc.; and
(3) to accept and connect through its telephone system all
such telephone calls coming to the Philippines from
foreign countries — until further order of this Court.
On 28 April 1958, the defendant company filed its
answer, with counterclaims.
It denied any obligation on its part to execute a contrary
of services with the Bureau of Telecommunications;
contested the jurisdiction of the Court of First Instance to
compel it to enter into interconnecting agreements, and
averred that it was justified to disconnect the trunk lines
heretofore leased to the Bureau of Telecommunications
under the existing agreement because its facilities were
being used in fraud of its rights. PLDT further claimed that
the Bureau was engaging in commercial telephone
operations in excess of authority, in competition with, and
to the prejudice of, the PLDT, using defendants own
telephone poles, without proper accounting of revenues.
After trial, the lower court rendered judgment that it
could not compel the PLDT to enter into an agreement
with the Bureau because the parties were not in
agreement; that under Executive Order 94, establishing
the Bureau of Telecommunications, said Bureau was not
limited to servicing government offices alone, nor was
there any in the contract of lease of the trunk lines, since
the PLDT knew, or ought to have known, at the time that
their use by the Bureau was to be public throughout the
Islands, hence the Bureau was neither guilty of fraud,
abuse, or misuse of the poles of the PLDT; and, in view of
serious public prejudice that would result from the
disconnection of the trunk lines, declared the preliminary
injunction permanent, although it dismissed both the
complaint and the counterclaims.
Both parties appealed.
Taking up first the appeal of the Republic, the latter
complains of the action of the trial court in dismissing the
part of its complaint seeking to compel the defendant to
enter into an interconnecting contract with it, because the
parties could not agree on the terms and conditions of the
interconnection, and of its refusal to fix the terms and
conditions therefor.
We agree with the court below that parties can not be
coerced to enter into a contract where no agreement is
had between them as to the principal terms and
conditions of the contract. Freedom to stipulate such
terms and conditions is of the essence of our contractual
system, and by express provision of the statute, a
contract may be annulled if tainted by violence,
intimidation, or undue influence (Articles 1306, 1336,
1337, Civil Code of the Philippines). But the court a
quo has apparently overlooked that while the Republic
may not compel the PLDT to celebrate a contract with it,
the Republic may, in the exercise of the sovereign power
of eminent domain, require the telephone company to
permit interconnection of the government telephone
system and that of the PLDT, as the needs of the
government service may require, subject to the payment
of just compensation to be determined by the court.
Nominally, of course, the power of eminent domain
results in the taking or appropriation of title to, and
possession of, the expropriated property; but no cogent
reason appears why the said power may not be availed of
to impose only a burden upon the owner of condemned
property, without loss of title and possession. It is
unquestionable that real property may, through
expropriation, be subjected to an easement of right of
way. The use of the PLDT's lines and services to allow
inter-service connection between both telephone systems
is not much different. In either case private property is
subjected to a burden for public use and benefit. If, under
section 6, Article XIII, of the Constitution, the State may,
in the interest of national welfare, transfer utilities to
public ownership upon payment of just compensation,
there is no reason why the State may not require a public
utility to render services in the general interest, provided
just compensation is paid therefor. Ultimately, the
beneficiary of the interconnecting service would be the
users of both telephone systems, so that the
condemnation would be for public use.
The Bureau of Telecommunications, under section 78
(b) of Executive Order No. 94, may operate and maintain
wire telephone or radio telephone communications
throughout the Philippines by utilizing existing facilities in
cities, towns, and provinces under such terms and
conditions or arrangement with present owners or
operators as may be agreed upon to the satisfaction of all
concerned; but there is nothing in this section that would
exclude resort to condemnation proceedings where
unreasonable or unjust terms and conditions are exacted,
to the extent of crippling or seriously hampering the
operations of said Bureau.
A perusal of the complaint shows that the Republic's
cause of action is predicated upon the radio telephonic
isolation of the Bureau's facilities from the outside world if
the severance of interconnection were to be carried out
by the PLDT, thereby preventing the Bureau of
Telecommunications from properly discharging its
functions, to the prejudice of the general public. Save for
the prayer to compel the PLDT to enter into a contract
(and the prayer is no essential part of the pleading), the
averments make out a case for compulsory rendering of
inter-connecting services by the telephone company upon
such terms and conditions as the court may determine to
be just. And since the lower court found that both parties
"are practically at one that defendant (PLDT) is entitled to
reasonable compensation from plaintiff for the reasonable
use of the former's telephone facilities" (Decision, Record
on Appeal, page 224), the lower court should have
proceeded to treat the case as one of condemnation of
such services independently of contract and proceeded to
determine the just and reasonable compensation for the
same, instead of dismissing the petition.
This view we have taken of the true nature of the
Republic's petition necessarily results in overruling the
plea of defendant-appellant PLDT that the court of first
instance had no jurisdiction to entertain the petition and
that the proper forum for the action was the Public
Service Commission. That body, under the law, has no
authority to pass upon actions for the taking of private
property under the sovereign right of eminent domain.
Furthermore, while the defendant telephone company is a
public utility corporation whose franchise, equipment and
other properties are under the jurisdiction, supervision
and control of the Public Service Commission (Sec. 13,
Public Service Act), yet the plaintiff's telecommunications
network is a public service owned by the Republic and
operated by an instrumentality of the National
Government, hence exempt, under Section 14 of the
Public Service Act, from such jurisdiction, supervision and
control. The Bureau of Telecommunications was created
in pursuance of a state policy reorganizing the
government offices —
to meet the exigencies attendant upon the establishment
of the free and independent Government of the Republic
of the Philippines, and for the purpose of promoting
simplicity, economy and efficiency in its operation
(Section 1, Republic Act No. 51) —
and the determination of state policy is not vested in the
Commission (Utilities Com. vs. Bartonville Bus Line, 290
Ill. 574; 124 N.E. 373).
Defendant PLDT, as appellant, contends that the court
below was in error in not holding that the Bureau of
Telecommunications was not empowered to engage in
commercial telephone business, and in ruling that said
defendant was not justified in disconnecting the telephone
trunk lines it had previously leased to the Bureau. We find
that the court a quo ruled correctly in rejecting both
assertions.
Executive Order No. 94, Series of 1947, reorganizing
the Bureau of Telecommunications, expressly
empowered the latter in its Section 79, subsection (b), to
"negotiate for, operate and maintain wire telephone or
radio telephone communication service throughout the
Philippines", and, in subsection (c), "to prescribe, subject
to approval by the Department Head, equitable rates of
charges for messages handled by the system and/or for
time calls and other services that may be rendered by the
system". Nothing in these provisions limits the Bureau to
non-commercial activities or prevents it from serving the
general public. It may be that in its original prospectuses
the Bureau officials had stated that the service would be
limited to government offices: but such limitations could
not block future expansion of the system, as authorized
by the terms of the Executive Order, nor could the
officials of the Bureau bind the Government not to engage
in services that are authorized by law. It is a well-known
rule that erroneous application and enforcement of the
law by public officers do not block subsequent correct
application of the statute (PLDT vs. Collector of Internal
Revenue, 90 Phil. 676), and that the Government is never
estopped by mistake or error on the part of its agents
(Pineda vs. Court of First Instance of Tayabas, 52 Phil.
803, 807; Benguet Consolidated Mining Co. vs. Pineda,
98 Phil. 711, 724).
The theses that the Bureau's commercial services
constituted unfair competition, and that the Bureau was
guilty of fraud and abuse under its contract, are, likewise,
untenable.
 First, the competition is merely hypothetical, the demand
for telephone service being very much more than the
supposed competitors can supply. As previously noted,
the PLDT had 20,000 pending applications at the time,
and the Bureau had another 5,000. The telephone
company's inability to meet the demands for service are
notorious even now. Second, the charter of the defendant
expressly provides:
SEC. 14. The rights herein granted shall not be
exclusive, and the rights and power to grant to any
corporation, association or person other than the grantee
franchise for the telephone or electrical transmission of
message or signals shall not be impaired or affected by
the granting of this franchise: — (Act 3436)
And third, as the trial court correctly stated, "when the
Bureau of Telecommunications subscribed to the trunk
lines, defendant knew or should have known that their
use by the subscriber was more or less public and all
embracing in nature, that is, throughout the Philippines, if
not abroad" (Decision, Record on Appeal, page 216).
The acceptance by the defendant of the payment of
rentals, despite its knowledge that the plaintiff had
extended the use of the trunk lines to commercial
purposes, continuously since 1948, implies assent by the
defendant to such extended use. Since this relationship
has been maintained for a long time and the public has
patronized both telephone systems, and their
interconnection is to the public convenience, it is too late
for the defendant to claim misuse of its facilities, and it is
not now at liberty to unilaterally sever the physical
connection of the trunk lines.
..., but there is high authority for the position that, when
such physical connection has been voluntarily made,
under a fair and workable arrangement and guaranteed
by contract and the continuous line has come to be
patronized and established as a great public
convenience, such connection shall not in breach of the
agreement be severed by one of the parties. In that case,
the public is held to have such an interest in the
arrangement that its rights must receive due
consideration. This position finds approval in State ex rel.
vs. Cadwaller, 172 Ind. 619, 636, 87 N.E. 650, and is
stated in the elaborate and learned opinion of Chief
Justice Myers as follows: "Such physical connection
cannot be required as of right, but if such connection is
voluntarily made by contract, as is here alleged to be the
case, so that the public acquires an interest in its
continuance, the act of the parties in making such
connection is equivalent to a declaration of a purpose to
waive the primary right of independence, and it imposes
upon the property such a public status that it may not be
disregarded" — citing Mahan v. Mich. Tel. Co., 132 Mich.
242, 93 N.W. 629, and the reasons upon which it is in
part made to rest are referred to in the same opinion, as
follows: "Where private property is by the consent of the
owner invested with a public interest or privilege for the
benefit of the public, the owner can no longer deal with it
as private property only, but must hold it subject to the
right of the public in the exercise of that public interest or
privilege conferred for their benefit." Allnut v. Inglis (1810)
12 East, 527. The doctrine of this early case is the
acknowledged law. (Clinton-Dunn Tel. Co. v. Carolina
Tel. & Tel. Co., 74 S.E. 636, 638).
It is clear that the main reason for the objection of the
PLDT lies in the fact that said appellant did not expect
that the Bureau's telephone system would expand with
such rapidity as it has done; but this expansion is no
ground for the discontinuance of the service agreed upon.
The last issue urged by the PLDT as appellant is its right
to compensation for the use of its poles for bearing
telephone wires of the Bureau of Telecommunications.
Admitting that section 19 of the PLDT charter reserves to
the Government —
the privilege without compensation of using the poles of
the grantee to attach one ten-pin cross-arm, and to install,
maintain and operate wires of its telegraph system
thereon; Provided, however, That the Bureau of Posts
shall have the right to place additional cross-arms and
wires on the poles of the grantee by paying a
compensation, the rate of which is to be agreed upon by
the Director of Posts and the grantee; —
the defendant counterclaimed for P8,772.00 for the use
of its poles by the plaintiff, contending that what was
allowed free use, under the aforequoted provision, was
one ten-pin cross-arm attachment and only for plaintiff's
telegraph system, not for its telephone system; that said
section could not refer to the plaintiff's telephone system,
because it did not have such telephone system when
defendant acquired its franchise. The implication of the
argument is that plaintiff has to pay for the use of
defendant's poles if such use is for plaintiff's telephone
system and has to pay also if it attaches more than one
(1) ten-pin cross-arm for telegraphic purposes.
As there is no proof that the telephone wires strain the
poles of the PLDT more than the telegraph wires, nor that
they cause more damage than the wires of the telegraph
system, or that the Government has attached to the poles
more than one ten-pin cross-arm as permitted by the
PLDT charter, we see no point in this assignment of error.
So long as the burden to be borne by the PLDT poles is
not increased, we see no reason why the reservation in
favor of the telegraph wires of the government should not
be extended to its telephone lines, any time that the
government decided to engage also in this kind of
communication.
In the ultimate analysis, the true objection of the PLDT
to continue the link between its network and that of the
Government is that the latter competes "parasitically" (sic)
with its own telephone services. Considering, however,
that the PLDT franchise is non-exclusive; that it is well-
known that defendant PLDT is unable to adequately cope
with the current demands for telephone service, as shown
by the number of pending applications therefor; and that
the PLDT's right to just compensation for the services
rendered to the Government telephone system and its
users is herein recognized and preserved, the objections
of defendant-appellant are without merit. To uphold the
PLDT's contention is to subordinate the needs of the
general public to the right of the PLDT to derive profit
from the future expansion of its services under its non-
exclusive franchise.
WHEREFORE, the decision of the Court of First
Instance, now under appeal, is affirmed, except in so far
as it dismisses the petition of the Republic of the
Philippines to compel the Philippine Long Distance
Telephone Company to continue servicing the
Government telephone system upon such terms, and for
a compensation, that the trial court may determine to be
just, including the period elapsed from the filing of the
original complaint or petition. And for this purpose, the
records are ordered returned to the court of origin for
further hearings and other proceedings not inconsistent
with this opinion. No costs.
===========================================
G.R. No. 152230. August 9, 2005
JESUS IS LORD CHRISTIAN SCHOOL FOUNDATION,
INC. vs. MUNICIPALITY (now CITY) OF PASIG,
METRO MANILA
CALLEJO, SR., J.:
Before us is a petition for review of the Decision of the
Court of Appeals (CA) in CA-G.R. CV No. 59050, and its
Resolution dated February 18, 2002, denying the motion
for reconsideration thereof. The assailed decision
affirmed the order of the Regional Trial Court (RTC) of
Pasig, Branch 160, declaring the respondent Municipality
(now City) of Pasig as having the right to expropriate and
take possession of the subject property.
The Antecedents
The Municipality of Pasig needed an access road from E.
R. Santos Street, a municipal road near the Pasig Public
Market, to Barangay Sto. Tomas Bukid, Pasig, where 60
to 70 houses, mostly made of light materials, were
located. The road had to be at least three meters in width,
as required by the Fire Code, so that fire trucks could
pass through in case of conflagration. Likewise, the
residents in the area needed the road for water and
electrical outlets. The municipality then decided to acquire
51 square meters out of the 1,791-square meter property
of Lorenzo Ching Cuanco, Victor Ching Cuanco and
Ernesto Ching Cuanco Kho covered by Transfer
Certificate of Title (TCT) No. PT-66585, which is abutting
E. R. Santos Street.
On April 19, 1993, the Sangguniang Bayan of Pasig
approved an Ordinance authorizing the municipal mayor
to initiate expropriation proceedings to acquire the said
property and appropriate the fund therefor. The ordinance
stated that the property owners were notified of the
municipalitys intent to purchase the property for public
use as an access road but they rejected the offer.
On July 21, 1993, the municipality filed a complaint,
amended on August 6, 1993, against the Ching Cuancos
for the expropriation of the property under Section 19 of
Republic Act (R.A.) No. 7160, otherwise known as the
Local Government Code. The plaintiff alleged therein that
it notified the defendants, by letter, of its intention to
construct an access road on a portion of the property but
they refused to sell the same portion. The plaintiff
appended to the complaint a photocopy of the letter
addressed to defendant Lorenzo Ching Cuanco.
The plaintiff deposited with the RTC 15% of the market
value of the property based on the latest tax declaration
covering the property. On plaintiffs motion, the RTC
issued a writ of possession over the property sought to be
expropriated. On November 26, 1993, the plaintiff caused
the annotation of a notice of lis pendens at the dorsal
portion of TCT No. PT-92579 under the name of the
Jesus Is Lord Christian School Foundation, Incorporated
(JILCSFI) which had purchased the property. Thereafter,
the plaintiff constructed therein a cemented road with a
width of three meters; the road was called Damayan
Street.
In their answer, the defendants claimed that, as early as
February 1993, they had sold the said property to
JILCSFI as evidenced by a deed of sale bearing the
signature of defendant Ernesto Ching Cuanco Kho and
his wife.
When apprised about the complaint, JILCSFI filed a
motion for leave to intervene as defendant-in-intervention,
which motion the RTC granted on August 26, 1994.
In its answer-in-intervention, JILCSFI averred, by way of
special and affirmative defenses, that the plaintiffs
exercise of eminent domain was only for a particular class
and not for the benefit of the poor and the landless. It
alleged that the property sought to be expropriated is not
the best portion for the road and the least burdensome to
it. The intervenor filed a crossclaim against its co-
defendants for reimbursement in case the subject
property is expropriated. In its amended answer, JILCSFI
also averred that it has been denied the use and
enjoyment of its property because the road was
constructed in the middle portion and that the plaintiff was
not the real party-in-interest. The intervenor, likewise,
interposed counterclaims against the plaintiff for moral
damages and attorneys fees.
During trial, Rolando Togonon, the plaintiffs messenger,
testified on direct examination that on February 23, 1993,
he served a letter of Engr. Jose Reyes, the Technical
Assistant to the Mayor on Infrastructure, to Lorenzo Ching
Cuanco at his store at No. 18 Alkalde Jose Street,
Kapasigan, Pasig. A lady received the same and brought
it inside the store. When she returned the letter to him, it
already bore the signature of Luz Bernarte. He identified
a photocopy of the letter as similar to the one he served
at the store. On cross-examination, he admitted that he
never met Luz Bernarte.
Edgardo del Rosario, a resident of Sto. Tomas Bukid
since 1982 declared that he would pass through a
wooden bridge to go to E. R. Santos Street. At times, the
bridge would be slippery and many had met accidents
while walking along the bridge. Because of this, they
requested Mayor Vicente Eusebio to construct a road
therein. He attested that after the construction of the
cemented access road, the residents had water and
electricity.
Augusto Paz of the City Engineers Office testified that,
sometime in 1992, the plaintiff constructed a road
perpendicular from E. R. Santos Street to Sto. Tomas
Bukid; he was the Project Engineer for the said
undertaking. Before the construction of the road, the lot
was raw and they had to put filling materials so that
vehicles could use it. According to him, the length of the
road which they constructed was 70 meters long and 3
meters wide so that a fire truck could pass through. He
averred that there is no other road through which a fire
truck could pass to go to Sto. Tomas Bukid.
Manuel Tembrevilla, the Fire Marshall, averred that he
had seen the new road, that is, Damayan Street, and
found that a fire truck could pass through it. He estimated
the houses in the area to be around 300 to 400.
Tembrevilla also stated that Damayan Street is the only
road in the area.
Finally, Bonifacio Maceda, Jr., Tax Mapper IV, testified
that, according to their records, JILCSFI became the
owner of the property only on January 13, 1994.
The plaintiff offered in evidence a photocopy of the letter
of Engr. Jose Reyes addressed to Lorenzo Ching Cuanco
to prove that the plaintiff made a definite and valid offer to
acquire the property to the co-owners. However, the RTC
rejected the same letter for being a mere photocopy.
For the defendant-intervenor, Normita del Rosario, owner
of the property located across the subject property,
testified that there are other roads leading to E. R. Santos
Street. She asserted that only about ten houses of the
urban poor are using the new road because the other
residents are using an alternative right-of-way. She
averred that she did not actually occupy her property; but
there were times that she visited it.
Danilo Caballero averred that he had been a resident of
Sto. Tomas Bukid for seven years. From his house, he
could use three streets to go to E. R. Santos Street,
namely, Catalina Street, Damayan Street and Bagong
Taon Street. On cross-examination, he admitted that no
vehicle could enter Sto. Tomas Bukid except through the
newly constructed Damayan Street.
Eduardo Villanueva, Chairman of the Board of Trustees
and President of JILCSFI, testified that the parcel of land
was purchased for purposes of constructing a school
building and a church as worship center. He averred that
the realization of these projects was delayed due to the
passing of the ordinance for expropriation.
The intervenor adduced documentary evidence that on
February 27, 1993, Lorenzo Ching Cuanco and the co-
owners agreed to sell their property covered by TCT No.
PT-66585 for P1,719,000.00. It paid a down payment
of P1,000,000.00 for the property. After payment of the
total purchase price, the Ching Cuancos executed a Deed
of Absolute Sale over the property on December 13,
1993. On December 21, 1993, TCT No. PT-92579 was
issued in the name of JILCSFI. It declared the property
for taxation purposes under its name.
On September 3, 1997, the RTC issued an Order in favor
of the plaintiff, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing and in
accordance with Section 4, Rule 67 of the Revised Rules
of Court, the Court Resolves to DECLARE the plaintiff as
having a lawful right to take the property in question for
purposes for which the same is expropriated.
The plaintiff and intervenor are hereby directed to submit
at least two (2) names of their recommended
commissioners for the determination of just compensation
within ten (10) days from receipt hereof.
SO ORDERED.
The RTC held that, as gleaned from the declaration in
Ordinance No. 21, there was substantial compliance with
the definite and valid offer requirement of Section 19 of
R.A. No. 7160, and that the expropriated portion is the
most convenient access to the interior of Sto. Tomas
Bukid.
Dissatisfied, JILCSFI elevated the case to the CA on the
following assignment of errors:
First Assignment of Error
THE LOWER COURT SERIOUS[LY] ERRED WHEN IT
RULED THAT PLAINTIFF-APPELLEE SUBSTANTIALLY
COMPLIED WITH THE LAW WHEN IT EXPROPRIATED
JILS PROPERTY TO BE USED AS A RIGHT OF WAY.
Second Assignment of Error
THE LOWER COURT ERRED IN DISREGARDING JILS
EVIDENCE PROVING THAT THERE WAS NO PUBLIC
NECESSITY TO WARRANT THE EXPROPRIATION OF
THE SUBJECT PROPERTY.
The Court of Appeals Decision
In a Decision dated March 13, 2001, the CA affirmed the
order of the RTC. The CA agreed with the trial court that
the plaintiff substantially complied with Section 19 of R.A.
No. 7160, particularly the requirement that a valid and
definite offer must be made to the owner. The CA
declared that the letter of Engr. Reyes, inviting Lorenzo
Ching Cuanco to a conference to discuss with him the
road project and the price of the lot, was a substantial
compliance with the valid and definite offer requirement
under said Section 19. In addition, the CA noted that
there was also constructive notice to the defendants of
the expropriation proceedings since a notice of lis
pendens was annotated at the dorsal portion of TCT No.
PT-92579 on November 26, 1993.
Finally, the CA upheld the public necessity for the subject
property based on the findings of the trial court that the
portion of the property sought to be expropriated appears
to be, not only the most convenient access to the interior
of Sto. Tomas Bukid, but also an easy path for vehicles
entering the area, particularly fire trucks. Moreover, the
CA took into consideration the provision of Article 33 of
the Rules and Regulations Implementing the Local
Government Code, which regards the construction or
extension of roads, streets, sidewalks as public use,
purpose or welfare.
On April 6, 2001, JILCSFI filed a motion for
reconsideration of the said decision alleging that the CA
erred in relying on the photocopy of Engr. Reyes letter to
Lorenzo Ching Cuanco because the same was not
admitted in evidence by the trial court for being a mere
photocopy. It also contended that the CA erred in
concluding that constructive notice of the expropriation
proceeding, in the form of annotation of the notice of lis
pendens, could be considered as a substantial
compliance with the requirement under Section 19 of the
Local Government Code for a valid and definite offer.
JILCSFI also averred that no inspection was ever ordered
by the trial court to be conducted on the property, and, if
there was one, it had the right to be present thereat since
an inspection is considered to be part of the trial of the
case.
The CA denied the motion for reconsideration for lack of
merit. It held that it was not precluded from considering
the photocopy of the letter, notwithstanding that the same
was excluded by the trial court, since the fact of its
existence was duly established by corroborative
evidence. This corroborative evidence consisted of the
testimony of the plaintiffs messenger that he personally
served the letter to Lorenzo Ching Cuanco, and Municipal
Ordinance No. 21 which expressly stated that the
property owners were already notified of the expropriation
proceeding. The CA noted that JILCSFI failed to adduce
controverting evidence, thus the presumption of regularity
was not overcome.
The Present Petition
In this petition, petitioner JILCSFI raises the following
issues: (1) whether the respondent complied with the
requirement, under Section 19 of the Local Government
Code, of a valid and definite offer to acquire the property
prior to the filing of the complaint; (2) whether its property
which is already intended to be used for public purposes
may still be expropriated by the respondent; and (3)
whether the requisites for an easement for right-of-way
under Articles 649 to 657 of the New Civil Code may be
dispensed with.
The petitioner stresses that the law explicitly requires that
a valid and definite offer be made to the owner of the
property and that such offer was not accepted. It argues
that, in this case, there was no evidence to show that
such offer has been made either to the previous owner or
the petitioner, the present owner. The petitioner contends
that the photocopy of the letter of Engr. Reyes, notifying
Lorenzo Ching Cuanco of the respondents intention to
construct a road on its property, cannot be considered
because the trial court did not admit it in evidence. And
assuming that such letter is admissible in evidence, it
would not prove that the offer has been made to the
previous owner because mere notice of intent to
purchase is not equivalent to an offer to purchase. The
petitioner further argues that the offer should be made to
the proper party, that is, to the owner of the property. It
noted that the records in this case show that as of
February 1993, it was already the owner of the property.
Assuming, therefore, that there was an offer to purchase
the property, the same should have been addressed to
the petitioner, as present owner.
The petitioner maintains that the power of eminent
domain must be strictly construed since its exercise is
necessarily in derogation of the right to property
ownership. All the requirements of the enabling law must,
therefore, be strictly complied with. Compliance with such
requirements cannot be presumed but must be proved by
the local government exercising the power. The petitioner
adds that the local government should, likewise, comply
with the requirements for an easement of right-of-way;
hence, the road must be established at a point least
prejudicial to the owner of the property. Finally, the
petitioner argues that, if the property is already devoted to
or intended to be devoted to another public use, its
expropriation should not be allowed.
For its part, the respondent avers that the CA already
squarely resolved the issues raised in this petition, and
the petitioner failed to show valid and compelling reason
to reverse the CAs findings. Moreover, it is not the
function of the Supreme Court to weigh the evidence on
factual issues all over again. The respondent contends
that the Ching Cuancos were deemed to have admitted
that an offer to purchase has been made and that they
refused to accept such offer considering their failure to
specifically deny such allegation in the complaint. In light
of such admission, the exclusion of the photocopy of the
letter of Engr. Reyes, therefore, is no longer significant.
The Ruling of the Court
The petition is meritorious.
At the outset, it must be stressed that only questions of
law may be raised by the parties and passed upon by the
Supreme Court in petitions for review
on certiorari. Findings of fact of the CA, affirming those of
the trial court, are final and conclusive and may not be
reviewed on appeal.
Nonetheless, where it is shown that the conclusion is a
finding grounded on speculations, surmises or
conjectures or where the judgment is based on
misapprehension of facts, the Supreme Court may
reexamine the evidence on record.
Eminent Domain: Nature and Scope
The right of eminent domain is usually understood to be
an ultimate right of the sovereign power to appropriate
any property within its territorial sovereignty for a public
purpose. The nature and scope of such power has been
comprehensively described as follows:
It is an indispensable attribute of sovereignty; a power
grounded in the primary duty of government to serve the
common need and advance the general welfare. Thus,
the right of eminent domain appertains to every
independent government without the necessity for
constitutional recognition. The provisions found in modern
constitutions of civilized countries relating to the taking of
property for the public use do not by implication grant the
power to the government, but limit the power which
would, otherwise, be without limit. Thus, our own
Constitution provides that [p]rivate property shall not be
taken for public use without just compensation.
Furthermore, the due process and equal protection
clauses act as additional safeguards against the arbitrary
exercise of this governmental power.
Strict Construction and Burden of Proof
The exercise of the right of eminent domain, whether
directly by the State or by its authorized agents, is
necessarily in derogation of private rights. It is one of the
harshest proceedings known to the law. Consequently,
when the sovereign delegates the power to a political unit
or agency, a strict construction will be given against the
agency asserting the power. The authority to condemn is
to be strictly construed in favor of the owner and against
the condemnor. When the power is granted, the extent to
which it may be exercised is limited to the express terms
or clear implication of the statute in which the grant is
contained.
Corollarily, the respondent, which is the condemnor, has
the burden of proving all the essentials necessary to
show the right of condemnation. It has the burden of proof
to establish that it has complied with all the requirements
provided by law for the valid exercise of the power of
eminent domain.
The grant of the power of eminent domain to local
government units is grounded on Section 19 of R.A. No.
7160 which reads:
SEC. 19. Eminent Domain. A local government unit may,
through its chief executive and acting pursuant to an
ordinance, exercise the power of eminent domain for
public use, or purpose, or welfare for the benefit of the
poor and the landless, upon payment of just
compensation, pursuant to the provisions of the
Constitution and pertinent laws; Provided, however, That
the power of eminent domain may not be exercised
unless a valid and definite offer has been previously
made to the owner, and such offer was not
accepted: Provided, further, That the local government
unit may immediately take possession of the property
upon the filing of the expropriation proceedings and upon
making a deposit with the proper court of at least fifteen
percent (15%) of the fair market value of the property
based on the current tax declaration of the property to be
expropriated: Provided, finally, That the amount to be
paid for the expropriated property shall be determined by
the proper court based on the fair market value at the
time of the taking of the property.
The Court declared that the following requisites for the
valid exercise of the power of eminent domain by a local
government unit must be complied with:
1. An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the local
government unit, to exercise the power of eminent
domain or pursue expropriation proceedings over a
particular private property.
2. The power of eminent domain is exercised for public
use, purpose or welfare, or for the benefit of the poor and
the landless.
3. There is payment of just compensation, as required
under Section 9, Article III of the Constitution, and other
pertinent laws.
4. A valid and definite offer has been previously made to
the owner of the property sought to be expropriated, but
said offer was not accepted.
Valid and Definite Offer
Article 35 of the Rules and Regulations Implementing the
Local Government Code provides:
ARTICLE 35. Offer to Buy and Contract of Sale. (a) The
offer to buy private property for public use or purpose
shall be in writing. It shall specify the property sought to
be acquired, the reasons for its acquisition, and the price
offered.
(b) If the owner or owners accept the offer in its entirety, a
contract of sale shall be executed and payment forthwith
made.
(c) If the owner or owners are willing to sell their property
but at a price higher than that offered to them, the local
chief executive shall call them to a conference for the
purpose of reaching an agreement on the selling price.
The chairman of the appropriation or finance committee
of the sanggunian, or in his absence, any member of
the sanggunian duly chosen as its representative, shall
participate in the conference. When an agreement is
reached by the parties, a contract of sale shall be drawn
and executed.
(d) The contract of sale shall be supported by the
following documents:
(1) Resolution of the sanggunian authorizing the local
chief executive to enter into a contract of sale. The
resolution shall specify the terms and conditions to be
embodied in the contract;
(2) Ordinance appropriating the amount specified in the
contract; and
(3) Certification of the local treasurer as to availability of
funds together with a statement that such fund shall not
be disbursed or spent for any purpose other than to pay
for the purchase of the property involved.
The respondent was burdened to prove the mandatory
requirement of a valid and definite offer to the owner of
the property before filing its complaint and the rejection
thereof by the latter. It is incumbent upon the condemnor
to exhaust all reasonable efforts to obtain the land it
desires by agreement. Failure to prove compliance with
the mandatory requirement will result in the dismissal of
the complaint.
An offer is a unilateral proposition which one party makes
to the other for the celebration of a contract. It creates a
power of acceptance permitting the offeree, by accepting
the offer, to transform the offerors promise into a
contractual obligation. Corollarily, the offer must be
complete, indicating with sufficient clearness the kind of
contract intended and definitely stating the essential
conditions of the proposed contract. An offer would
require, among other things, a clear certainty on both the
object and the cause or consideration of the envisioned
contract.
The purpose of the requirement of a valid and definite
offer to be first made to the owner is to encourage
settlements and voluntary acquisition of property needed
for public purposes in order to avoid the expense and
delay of a court action. The law is designed to give to the
owner the opportunity to sell his land without the expense
and inconvenience of a protracted and expensive
litigation. This is a substantial right which should be
protected in every instance. It encourages acquisition
without litigation and spares not only the landowner but
also the condemnor, the expenses and delays of
litigation. It permits the landowner to receive full
compensation, and the entity acquiring the property,
immediate use and enjoyment of the property. A
reasonable offer in good faith, not merely perfunctory
or pro forma offer, to acquire the property for a
reasonable price must be made to the owner or his
privy. A single bona fide offer that is rejected by the
owner will suffice.
The expropriating authority is burdened to make known
its definite and valid offer to all the owners of the property.
However, it has a right to rely on what appears in the
certificate of title covering the land to be expropriated.
Hence, it is required to make its offer only to the
registered owners of the property. After all, it is well-
settled that persons dealing with property covered by a
Torrens certificate of title are not required to go beyond
what appears on its face.
In the present case, the respondent failed to prove that
before it filed its complaint, it made a written definite and
valid offer to acquire the property for public use as an
access road. The only evidence adduced by the
respondent to prove its compliance with Section 19 of the
Local Government Code is the photocopy of the letter
purportedly bearing the signature of Engr. Jose Reyes, to
only one of the co-owners, Lorenzo Ching Cuanco. The
letter reads:
MR. LORENZO CHING CUANCO
18 Alcalde Jose Street
Capasigan, Pasig
Metro Manila
Dear Mr. Cuanco:
This refers to your parcel of land located along E. Santos
Street, Barangay Palatiw, Pasig, Metro Manila embraced
in and covered by TCT No. 66585, a portion of which with
an area of fifty-one (51) square meters is needed by the
Municipal Government of Pasig for conversion into a
road-right of way for the benefit of several residents living
in the vicinity of your property. Attached herewith is the
sketch plan for your information.
In this connection, may we respectfully request your
presence in our office to discuss this project and the price
that may be mutually agreed upon by you and the
Municipality of Pasig.
Thank you.
Very truly yours,
(Sgd.)
ENGR. JOSE L. REYES
Technical Asst. to the Mayor
on Infrastructure
It bears stressing, however, that the respondent offered
the letter only to prove its desire or intent to acquire the
property for a right-of-way. The document was not offered
to prove that the respondent made a definite and valid
offer to acquire the property. Moreover, the RTC rejected
the document because the respondent failed to adduce in
evidence the original copy thereof. The respondent,
likewise, failed to adduce evidence that copies of the
letter were sent to and received by all the co-owners of
the property, namely, Lorenzo Ching Cuanco, Victor
Ching Cuanco and Ernesto Kho.
The respondent sought to prove, through the testimony of
its messenger, Rolando Togonon, that Lorenzo Ching
Cuanco received the original of the said letter. But
Togonon testified that he merely gave the letter to a lady,
whom he failed to identify. He stated that the lady went
inside the store of Lorenzo Ching Cuanco, and later gave
the letter back to him bearing the signature purportedly of
one Luz Bernarte. However, Togonon admitted, on cross-
examination, that he did not see Bernarte affixing her
signature on the letter. Togonon also declared that he did
not know and had never met Lorenzo Ching Cuanco and
Bernarte:
Q And after you received this letter from that lady, what
did you do afterwards?
A I brought it with me, that letter, and then I went to
Caruncho.
Q So, [M]r. Witness, you are telling this Honorable Court
that this letter intended to Mr. Lorenzo was served at
Pasig Trading which was situated at No. 18 Alkalde Jose
Street on February 23, 1993?
A Yes, Maam.
ATTY. TAN:
That is all for the witness, Your Honor.
COURT:
Do you have any cross-examination?
ATTY. JOLO:
Just a few cross, Your Honor, please. With the kind
permission of the Honorable Court.
COURT:
Proceed.
CROSS-EXAMINATION
BY ATTY. JOLO:
Q Mr. Witness, do you know Mr. Lorenzo Ching [Cuanco]
A I do not know him.
Q As a matter of fact, you have not seen him even once,
isnt not (sic)?
A Yes, Sir.
Q This Luz Bernarte, do you know her?
A I do not know her.
Q As a matter of fact, you did not see Mrs. Bernarte even
once?
A That is correct.
Q And as a matter of fact, [M]r. Witness, you did not see
Mrs. Luz Bernarte affixing her signature on the bottom
portion of this demand letter, marked as Exh. C-2?
A Yes, Sir.
Even if the letter was, indeed, received by the co-owners,
the letter is not a valid and definite offer to purchase a
specific portion of the property for a price certain. It is
merely an invitation for only one of the co-owners,
Lorenzo Ching Cuanco, to a conference to discuss the
project and the price that may be mutually acceptable to
both parties.
There is no legal and factual basis to the CAs ruling that
the annotation of a notice of lis pendens at the dorsal
portion of petitioners TCT No. PT-92579 is a substantial
compliance with the requisite offer. A notice of lis
pendens is a notice to the whole world of the pendency of
an action involving the title to or possession of real
property and a warning that those who acquire an interest
in the property do so at their own risk and that they
gamble on the result of the litigation over it. Moreover,
the lis pendens was annotated at the dorsal portion of the
title only on November 26, 1993, long after the complaint
had been filed in the RTC against the Ching Cuancos.
Neither is the declaration in one of the whereas clauses
of the ordinance that the property owners were already
notified by the municipality of the intent to purchase the
same for public use as a municipal road, a substantial
compliance with the requirement of a valid and definite
offer under Section 19 of R.A. No. 7160. Presumably,
the Sangguniang Bayan relied on the erroneous premise
that the letter of Engr. Reyes reached the co-owners of
the property. In the absence of competent evidence that,
indeed, the respondent made a definite and valid offer to
all the co-owners of the property, aside from the letter of
Engr. Reyes, the declaration in the ordinance is not a
compliance with Section 19 of R.A. No. 7160.
The respondent contends, however, that the Ching
Cuancos, impliedly admitted the allegation in its complaint
that an offer to purchase the property was made to them
and that they refused to accept the offer by their failure to
specifically deny such allegation in their answer. This
contention is wrong. As gleaned from their answer to the
complaint, the Ching Cuancos specifically denied such
allegation for want of sufficient knowledge to form a belief
as to its correctness. Under Section 10, Rule 8 of the
Rules of Court, such form of denial, although not specific,
is sufficient.
Public Necessity
We reject the contention of the petitioner that its property
can no longer be expropriated by the respondent because
it is intended for the construction of a place for religious
worship and a school for its members. As aptly explained
by this Court in Manosca v. Court of Appeals, thus:
It has been explained as early as Sea v. Manila Railroad
Co., that:
A historical research discloses the meaning of the
term public use to be one of constant growth. As society
advances, its demands upon the individual increases and
each demand is a new use to which the resources of the
individual may be devoted. for whatever is beneficially
employed for the community is a public use.
Chief Justice Enrique M. Fernando states:
The taking to be valid must be for public use. There was a
time when it was felt that a literal meaning should be
attached to such a requirement. Whatever project is
undertaken must be for the public to enjoy, as in the case
of streets or parks. Otherwise, expropriation is not
allowable. It is not so any more. As long as the purpose of
the taking is public, then the power of eminent domain
comes into play. As just noted, the constitution in at least
two cases, to remove any doubt, determines what is
public use. One is the expropriation of lands to be
subdivided into small lots for resale at cost to individuals.
The other is the transfer, through the exercise of this
power, of utilities and other private enterprise to the
government. It is accurate to state then that at present
whatever may be beneficially employed for the general
welfare satisfies the requirements of public use.
Chief Justice Fernando, writing the ponencia in J.M.
Tuason & Co. vs. Land Tenure Administration, has
viewed the Constitution a dynamic instrument and one
that is not to be construed narrowly or pedantically so as
to enable it to meet adequately whatever problems the
future has in store. Fr. Joaquin Bernas, a noted
constitutionalist himself, has aptly observed that what, in
fact, has ultimately emerged is a concept of public use
which is just as broad as public welfare.
Petitioners ask: But (w)hat is the so-called unusual
interest that the expropriation of (Felix Manalos)
birthplace become so vital as to be a public use
appropriate for the exercise of the power of eminent
domain when only members of the Iglesia ni Cristo would
benefit? This attempt to give some religious perspective
to the case deserves little consideration, for what should
be significant is the principal objective of, not the casual
consequences that might follow from, the exercise of the
power. The purpose in setting up the marker is essentially
to recognize the distinctive contribution of the late Felix
Manalo to the culture of the Philippines, rather than to
commemorate his founding and leadership of the Iglesia
ni Cristo. The practical reality that greater benefit may be
derived by members of the Iglesia ni Cristo than by most
others could well be true but such a peculiar advantage
still remains to be merely incidental and secondary in
nature. Indeed, that only a few would actually benefit from
the expropriation of property, does not necessarily
diminish the essence and character of public use.
The petitioner asserts that the respondent must comply
with the requirements for the establishment of an
easement of right-of-way, more specifically, the road must
be constructed at the point least prejudicial to the servient
state, and that there must be no adequate outlet to a
public highway. The petitioner asserts that the portion of
the lot sought to be expropriated is located at the middle
portion of the petitioners entire parcel of land, thereby
splitting the lot into two halves, and making it impossible
for the petitioner to put up its school building and worship
center.
The subject property is expropriated for the purpose of
constructing a road. The respondent is not mandated to
comply with the essential requisites for an easement of
right-of-way under the New Civil Code. Case law has it
that in the absence of legislative restriction, the grantee of
the power of eminent domain may determine the location
and route of the land to be taken unless such
determination is capricious and wantonly
injurious. Expropriation is justified so long as it is for the
public good and there is genuine necessity of public
character. Government may not capriciously choose what
private property should be taken.
The respondent has demonstrated the necessity for
constructing a road from E. R. Santos Street to Sto.
Tomas Bukid. The witnesses, who were residents of Sto.
Tomas Bukid, testified that although there were other
ways through which one can enter the vicinity, no vehicle,
however, especially fire trucks, could enter the area
except through the newly constructed Damayan Street.
This is more than sufficient to establish that there is a
genuine necessity for the construction of a road in the
area. After all, absolute necessity is not required, only
reasonable and practical necessity will suffice.
Nonetheless, the respondent failed to show the necessity
for constructing the road particularly in the petitioners
property and not elsewhere. We note that the whereas
clause of the ordinance states that the 51-square meter
lot is the shortest and most suitable access road to
connect Sto. Tomas Bukid to E. R. Santos Street. The
respondents complaint also alleged that the said portion
of the petitioners lot has been surveyed as the best
possible ingress and egress. However, the respondent
failed to adduce a preponderance of evidence to prove its
claims.
On this point, the trial court made the following findings:
The contention of the defendants that there is an existing
alley that can serve the purpose of the expropriator is not
accurate. An inspection of the vicinity reveals that the
alley being referred to by the defendants actually passes
thru Bagong Taon St. but only about one-half (1/2) of its
entire length is passable by vehicle and the other half is
merely a foot-path. It would be more inconvenient to
widen the alley considering that its sides are occupied by
permanent structures and its length from the municipal
road to the area sought to be served by the expropriation
is considerably longer than the proposed access road.
The area to be served by the access road is composed of
compact wooden houses and literally a slum area. As a
result of the expropriation of the 51-square meter portion
of the property of the intervenor, a 3-meter wide road
open to the public is created. This portion of the property
of the intervenor is the most convenient access to the
interior of Sto. Tomas Bukid since it is not only a short cut
to the interior of the Sto. Tomas Bukid but also an easy
path for vehicles entering the area, not to mention the 3-
meter wide road requirement of the Fire Code.
However, as correctly pointed out by the petitioner, there
is no showing in the record that an ocular inspection was
conducted during the trial. If, at all, the trial court
conducted an ocular inspection of the subject property
during the trial, the petitioner was not notified thereof. The
petitioner was, therefore, deprived of its right to due
process. It bears stressing that an ocular inspection is
part of the trial as evidence is thereby received and the
parties are entitled to be present at any stage of the
trial. Consequently, where, as in this case, the petitioner
was not notified of any ocular inspection of the property,
any factual finding of the court based on the said
inspection has no probative weight. The findings of the
trial court based on the conduct of the ocular inspection
must, therefore, be rejected.
IN LIGHT OF ALL THE FOREGOING, the petition is
GRANTED. The Decision and Resolution of the Court of
Appeals are REVERSED AND SET ASIDE. The RTC is
ordered to dismiss the complaint of the respondent
without prejudice to the refiling thereof.
SO ORDERED.
===========================================
G.R. No. 177611 April 18, 2012
REPUBLIC v. LEGASPI, 620 SCRA 110 (2012)
PEREZ, J.:
Assailed in this petition for review on certiorari filed
pursuant to Rule 45 of the 1997 Rules of Civil
Procedure is the Decision dated 26 April 2007rendered
by the Eighteenth Division of the Court of Appeals (CA) in
CA-G.R. SP No. 85735, denying for lack of merit the Rule
65 petition for certiorari filed by petitioner Republic of the
Philippines, thru the University of the Philippines in the
Visayas (UPV), for the nullification of the orders dated 17
November 2003 and 31 May 2004 issued by the Hon.
Roger B. Patricio, Presiding Judge of Branch 38 of the
Regional Trial Court (RTC) of Iloilo City, in the
expropriation case docketed thereat as Civil Case No.
19921.
The Facts
In December 1978, respondent Rosalina Libo-on
(Rosalina) accomplished a letter of intent signifying her
willingness to sell to UPV Lot No. 1 of Psu-193912 Amd.,
the 40,133-square meter property situated at Miag-ao,
Iloilo registered in her name under Original Certificate of
Title (OCT) No. F-20020 of the Iloilo provincial
registry. Forthwith, a Deed of Definite Sale was executed
by the parties whereby Rosalina, with the conformity of
her then tenant, Vicente Libo-on, sold the subject parcel
in favor of UPV for the stated consideration
of P56,479.50. As a consequence, UPV immediately took
possession of the property and, in line with its educational
development plan, started building thereon road
networks, infrastructure and school facilities. The record
shows that further use and development of the property
was subsequently taken up at the 1093rd meeting of the
UP Board of Regents held in Quezon City on 15
December 1995.
On 4 January 1980, however, Rosalina wrote a letter,
informing UPV that she was rescinding the sale of the
subject parcel on the ground that she was no longer the
owner of the property in view of her 5 September 1978
conveyance thereof by way of barter or exchange in favor
of respondents Rodolfo Legaspi, Sr., Querobin
Legaspi, Ofelia Legaspi-Muela, Purisima Legaspi Vda. De denominated as Lot Nos. 21609-B, 21609-C and 21609-
Mondejar, Vicente Legaspi, Rodolfo Legaspi II and the E, to wit:
Spouses Rosalina and Dominador Libo-on, among
others. UPV subsequently learned that Lot 1 was WHEREFORE, an ORDER OF CONDEMNATION is
subdivided into ten lots denominated and later registered hereby entered covering the above-mentioned parcels of
in the names of respondents in the following wise: land, [petitioner] having a lawful right to take the
properties sought to be condemned, for the public use or
Lot No. Area TCT Registered Owner purpose described in the complaint, upon payment of just
(Sqm.) No. compensation to be determined by three (3)
21609-A 9,078 8192 Querobin Legaspi, Commissioners who shall ascertain and report to the
et al. court the just compensation for the properties sought to
21609-B 2,648 8193 Rodolfo Legaspi, be taken.
Sr.
21609-C 4,374 8194 Rodolfo Legaspi, Appointment of the three (3) Commissioners is hereby
Sr. held in abeyance to give the court sufficient time to select
21609-D 16,286 8195 Querobin Legaspi, the three (3) competent and disinterested persons as
et al. Commissioners provided for under Section 5 of Rule 67
21609-E 1,494 8196 Rodolfo Legaspi, of the Revised Rules of Court.
Sr.
21609-F 1,250 8197 Ofelia Legaspi Notify Counsels.
Muela
21609- 1,251 8198 Rodolfo Legaspi
G Considering that the foregoing condemnation order
21609-H 1,250 8199 Querobin Legaspi covered only three (3) of the ten (10) lots comprising the
21609-I 1,251 8200 Purisima Legaspi subject property, petitioner moved for the continuation of
Vda. De Mondejar the condemnation proceedings insofar as the remaining
21609-J 1,251 8201 Vicente Legaspi seven lots were concerned. On 10 November 1994,
petitioner also filed an amended complaint, impleading as
additional defendants the Rural Bank of Miag-ao (Iloilo),
On 8 August 1991, petitioner, thru UPV, filed against Inc. (RBMI), the Philippine National Bank (PNB) and the
respondents the complaint for eminent domain docketed Iloilo Finance Corporation (IFC), in view of the mortgages
before the RTC as Civil Case No. 19921. Petitioner
constituted in their favor by respondents over some of the
alleged, among other matters, that the subject parcel is
lots into which the Lot 1 had been subdivided. Claiming to
within the approved and delineated campus of the UPV
have relied on the certificates of title presented to them by
which had well-established its presence in the area by
the mortgagors, however, RBMI, PNB and IFC filed their
building its laboratories, classrooms, faculty and student individual answers maintaining that the said mortgages
centers, among other facilities; and, that it had been were entered into for value and in good faith. The issues
constrained to resort to expropriation in view of the failure
thus joined and the pre-trial conference subsequently
of its efforts to negotiate with respondents for the
terminated, the RTC went on to issue the 7 July 1997 pre-
retention of the property on which it constructed
trial order summarizing the parties admissions, their
considerable improvements already being used for
respective positions as well as the issues to be tried in
academic purposes. Maintaining that the fair market value the case.
of the property at the time of its entry was P49,298.00,
UPV sought confirmation of its right of condemnation as
well as the fixing of the just compensation for the On 13 April 1998, the Office of the UPV Chancellor sent
property. respondent Rodolfo Legaspi a letter, protesting against
the latters occupation of a portion of the property in
litigation. Calling the RTCs attention to its 2 September
On 2 September 1991, the RTC issued an order granting
1991 Order which allowed UPVs continued possession of
petitioners motion to allow UPV to continue its possession
the property, petitioner also filed its 7 July
of the subject parcel upon deposit with the Iloilo Provincial
1998manifestation and motion praying for the grant of a
Treasurer of the sum of P50,070.00, representing the
writ of possession over the entirety of Lot 1. Without
provisional valuation of the property. In their answer resolving the motion, however, the RTC went on to issue
dated 16 December 1991, however, respondents averred the 16 June 2000 order, fixing the just compensation for
that petitioners right of expropriation should only be
Lot Nos. 21609-B, 21609-C and 21609-E, based on the
limited to the three lots covered by Transfer Certificate of
evidence adduced by the parties and the report submitted
Title (TCT) Nos. T-8193, 8194 and 8196, containing an
by the commissioners, to wit:
aggregate area of 8,516 square meters. Finding no
opposition to petitioners motion for a declaration on its
right to expropriate the same, the RTC issued an order of WHEREFORE, in view of all the foregoing, order is
condemnation dated 1 April 1992, upholding UPVs right hereby issued fixing the just compensation of subject Lots
to expropriate said three parcels which had been Nos. 21609-B, 21609-C and 21609-E covering a total
area of 8,516 sq. meters, as fifty one thousand ninety six
pesos (P51,096.00) at the rate of six pesos (P6.00) per
sq. meter. Accordingly, the [petitioner] is hereby ordered
to pay [respondents] Judge Rodolfo L. Legaspi, et al fifty
one thousand ninety six pesos (P51,096.00) for the total
just compensation of the three (3) aforementioned subject
lots. This amount includes the amount of fifty thousand
seventy pesos (P50,070.00) deposited by the [petitioner]
in the Office of the Provincial Treasurer of Iloilo.
There being no evidence presented by the parties to
support their respective claims for damages, none is
herein awarded.
On 17 November 2003, the RTC further issued the herein
assailed condemnation order of the same date, upholding
petitioners authority to expropriate the remaining seven
lots comprising the property, namely, Lot Nos. 21609-A,
21609-D, 21609-F, 21609-G, 21609-H, 21609-I and
21609-J. Excluding therefrom the area occupied by the
Villa Marina Beach Resort which respondent Rodolfo
Legaspi, Sr. operated in the premises, the RTC ruled as
follows:
WHEREFORE, an Order of Condemnation is hereby
entered allowing the [petitioner] to expropriate for public
use the remaining seven (7) subject Lot Nos. 21609-A,
21609-D, 21609-F, 21609-G, 21609-H, 21609-I and
21609-J all situated in Barangay Sapa, Miag-ao, Iloilo,
except such area therein as is occupied by the Villa
Marina Beach resort and which [respondent] Rodolfo L.
Legaspi, Sr. has been operating a business.
In properly fixing the just compensation to be paid to the
[respondents] Legaspis over the aforesaid 7 lots, the
Provincial Treasurer, the Provincial Assessor and the
Provincial Engineer, all of the Province of Iloilo, are
hereby appointed as commissioners to assist the Court in
the fixing the just compensation of the subject lots. Before
these commissioners so appointed discharge their
respective duties, they may take their oath to faithfully
perform their duties as such commissioners and their
oaths shall be filed before this Court as part of the
records of the proceedings in this case.
The commissioners who are hereby appointed are
requested to make known their acceptance within ten (10)
days from receipt of this order.
On 19 December 2003, petitioner and UPV filed motions
for reconsideration of the foregoing order on the ground
that the exclusion of the Villa Marina Beach Resort area
from the condemned lots is bereft of legal basis and
contrary to the evidence presented in the case which
showed that the same is an integral part of the UPVs
developmental plan for research and educational use. On
22 December 2003, respondents also filed their
manifestation and partial motion for reconsideration of the
same order alleging, among other matters, that Lot Nos.
21609-F, 21609-G, 21609-H, 21609-I and 21609-J
comprise the area occupied by Villa Marina Beach
Resort; that Lot No. 21609-A is the area where
respondent Rodolfo Legaspi, Sr. operates a business
called Omps Corner; that UPV has no intended use for
Lot No. 21609-D which is being used for residential
purposes by respondent Vicente Legaspi; and, that the
foregoing lots, together with the portion of Lot No. 1 of
Psu-193912 Amd. utilized by the Municipality of Miag-ao
as a public cemetery should be excluded from petitioners
exercise of its right of expropriation. Finding that the
exclusion of the aforesaid lots would not defeat UPVs
plan for its campus, the RTC issued the order dated 31
May 2004, the decretal portion of which states as follows:
WHEREFORE, finding the [petitioners] Motion for
Reconsideration dated December 19, 2003 without merit,
the same is denied. The Manifestation and Partial Motion
for Reconsideration dated December 19, 2003 of
[respondents] Legaspis being meritorious is, thus,
granted and the Order dated November 17, 2003 of this
Court is partially reconsidered and judgment is hereby
entered denying the expropriation of subject Lots Nos.
21609-A, 21609-D, 21609-F, 21609-G, 21609-H, 21609-I
and 21609-J.
As a consequence hereof, the order of this Court
appointing as Commissioners the Provincial Treasurer,
the Provincial Assessor and the Provincial Engineer, all of
the Province of Iloilois likewise reconsidered and set
aside.
Let copies of this Order be furnished the Office of the
Solicitor General, Atty. Cornelio Salinas, Atty. Rodolfo
Legaspi, Sr., Atty. Legaspi II, Atty. Alejandro Somo, the
Provincial Treasurer, the Provincial Assessor and the
Provincial Engineer, all of the Province of Iloilo.
No pronouncement as to costs.
Aggrieved, petitioner filed on 16 August 2004 the Rule 65
petition for certiorari and mandamus docketed before the
CA as CA-G.R. SP No. 85735, assailing the RTCs order
dated 31 May 2004 on the ground that grave abuse of
discretion attended the denial of the expropriation of the
subject lots after the right to expropriate the same was
earlier upheld in the likewise assailed order dated 17
November 2003. On 26 April 2007, the CAs then
Eighteenth Division rendered the herein assailed decision
denying the petition on the ground that, under Rule 67 of
the 1997 Rules of Civil Procedure, the proper remedy
from said assailed orders was an ordinary appeal which,
once lost, cannot be substituted by a Rule 65 petition
for certiorari and mandamus. Even if petitioners choice of
remedy were, moreover, to be considered proper under
the circumstances, the CA ruled that the RTCs issuance
of said assailed orders was well within its power and duty
to review, amend or reverse its findings and conclusions if
it deems it necessary for the administration of justice
within the scope of its jurisdiction. Without moving for a
reconsideration of the foregoing decision, petitioner filed
the petition at bench on 25 June 2007.
The Issue
Petitioner urges the nullification of the CAs assailed 26
April 2007 Decision on the following ground:
THE COURT OF APPEALS ERRED ON A QUESTION
OF LAW IN DENYING THE PETITION FOR
CERTIORARI AND AFFIRMING THE ORDER
DATED MAY 31, 2004 OF BRANCH 38 OF
THE REGIONAL TRIAL COURT OF ILOILO CITY WHIC
H DID NOT STATE THE FACTS AND THE LAW ON
WHICH IT IS BASED.
The Courts Ruling
We find the petition impressed with merit.
Expropriation or the exercise of the power of eminent
domain is the inherent right of the state and of those
entities to which the power has been lawfully delegated to
condemn private property to public use upon payment of
just compensation. Governed by Rule 67 of the Rules of
Court, the proceedings therefor consist of two (2) stages:
(a) the condemnation of the property after it is determined
that its acquisition will be for a public purpose or public
use; and, (b) the determination of just compensation to be
paid for the taking of private property to be made by the
court with the assistance of not more than three
commissioners. The nature of these two stages was
discussed in the following wise in the case of Municipality
of Bian vs. Judge Garcia, to wit:
1. There are two (2) stages in every action for
expropriation. The first is concerned with the
determination of the authority of the plaintiff to exercise
the power of eminent domain and the propriety of its
exercise in the context of the facts involved in the suit. It
ends with an order, if not of dismissal of the action, "of
condemnation declaring that the plaintiff has a lawful right
to take the property sought to be condemned, for the
public use or purpose described in the complaint, upon
the payment of just compensation to be determined as of
the date of the filing of the complaint." An order of
dismissal, if this be ordained, would be a final one, of
course, since it finally disposes of the action and leaves
nothing more to be done by the Court on the merits. So,
too, would an order of condemnation be a final one, for
thereafter, as the Rules expressly state, in the
proceedings before the Trial Court, "no objection to the
exercise of the right of condemnation (or the propriety
thereof) shall be filed or heard.
The second phase of the eminent domain action is
concerned with the determination by the Court of "the just
compensation for the property sought to be taken." This is
done by the Court with the assistance of not more than
three (3) commissioners. The order fixing the just
compensation on the basis of the evidence before, and
findings of, the commissioners would be final, too. It
would finally dispose of the second stage of the suit, and
leave nothing more to be done by the Court regarding the
issue. Obviously, one or another of the parties may
believe the order to be erroneous in its appreciation of the
evidence or findings of fact or otherwise. Obviously, too,
such a dissatisfied party may seek a reversal of the order
by taking an appeal therefrom.
It cannot, therefore, be gainsaid that the outcome of the
first phase of expropriation proceedings be it an order of
expropriation or an order of dismissal finally disposes of
the case and is, for said reason, final. The same is true of
the second phase that ends with an order determining the
amount of just compensation which, while essential for
the transfer of ownership in favor of the plaintiff, is but the
last stage of the expropriation proceedings and the
outcome of the initial finding by the court that the plaintiff
has a lawful right to take the property sought to be
expropriated, for the public use or purpose described in
the complaint. In the same manner that the order of
expropriation may be appealed by any party by filing a
record on appeal, a second and separate appeal may
likewise be taken from the order fixing the just
compensation. Indeed, jurisprudence recognizes the
existence of multiple appeals in a complaint for
expropriation because of said two stages in every action
for expropriation.
In the case at bench, the RTC split the determination of
UPVs right of expropriation over the ten lots into which
Lot No. 1 of Psu-193912 Amd. had been
subdivided.Considering the lack of opposition on the part
of respondents, the RTC issued the order dated 1 April
1996, upholding UPVs right to expropriate the three (3)
lots denominated as Lot Nos. 21609-B, 21609-C and
21609-E, with an aggregate area of 8,516 square
meters. Without any appeal having been perfected
therefrom, the RTCs 1 April 1996 order attained finality
and left no more question as to the propriety of the
acquisition of said lots for the public purpose alleged in
the complaint from which the instant suit
originated.Accordingly, the RTC correctly went on to
issue the order dated 16 June 2000, fixing the just
compensation for Lot Nos. 21609-B, 21609-D and 21609-
E at P51,096.00, less the P50,070.00 UPV appears to
have already deposited with the Provincial Treasurer
of Iloilo.
On the other hand, with respect to Lot Nos. 21609-A,
21609-D, 21609-F, 21609-G, 21609-H, 21609-I and
21609-J, the record shows that the RTC issued the herein
assailed 17 November 2003 order which, while likewise
upholding UPVs right of expropriation over said lots,
ordered the exclusion of the portion occupied by Villa
Marina Beach Resort from the 31,617 square meters
comprising said lots. Acting on the motions for
reconsideration of said order filed by petitioner, UPV and
respondents, however, the RTC issued the second
assailed 31 May 2004 order, altogether denying said right
of expropriation, upon the following succinct findings and
conclusions:
It bears stressing that even before the filing of the original
complaint, [respondent] Rodolfo Legaspi, Sr. was already
operating as his business establishment the Villa Marina
Resort and this must be the reason why [petitioner] had
expressly excluded this area from the area it intended to
expropriate, the amended complaint notwithstanding, and
must also be the reason why former UP President Angara
wrote a letter (Exh. 10) to defendant Legaspi, Sr.
conveying a happy compromise acceptable to all.
It likewise bears stressing the fact that insofar as Lot No.
21609-A, a portion thereof has been utilized by defendant
Rodolfo Legaspi, Sr.s Omps Corner and the rest of the
said lot has been utilized by the Municipality of Miag-
ao, Iloilo as a public cemetery.
The total area covered by Lots Nos. 21609-A, 21609-D,
21609-F, 21609-G, 21609-H, 21609-I and 21609-J is only
31,617 sq. meters. Based on the locations of these lots,
acquisition by [UPV] would not impair or defeat the
purpose of its campus site. In other words, without
including in the expropriation the Villa Marina Resort, the
Omps Corner and the public cemetery and the residential
land where [respondent] Vicente Legaspis family is
residing, [UPVs] operation as a university would not be
adversely affected.
As to the Villa Marina Resort and the Omps Corner these
places have been utilized by defendant Rodolfo Legaspi,
Sr. for his business even before the filing of the instant
complaint. As to [respondent] Vicente Legaspis lot,
including this in the expropriation would force his family to
go astray as they have no place where to live.
As to the portion being utilized as public cemetery, this
Court believes and so holds that allowing the plaintiff to
expropriate the same would be bordering to the long
cherished and revered customs and tradition of
respecting the dead. x x x
The order of denial of UPVs right to expropriate Lot Nos.
21609-A, 21609-D, 21609-F, 21609-G, 21609-H, 21609-I
and 21609-J, is final in nature and not merely
interlocutory. However, instead of perfecting an appeal
from said order which it received on 16 June
2004, petitioner filed on 16 August 2004 the Rule 65
petition for certiorari docketed before the CA as CA-G.R.
SP No. 85735, on the ground that the RTC acted with
grave abuse of discretion in denying the expropriation of
the subject lots after its right to expropriate the same had
been earlier determined. Narrow in scope and unflexible
in character, a petition for certiorari is, concededly,
intended to correct errors of jurisdiction or grave abuse of
discretion amounting to lack or excess of jurisdictionand
lies only when there is no appeal nor any plain, speedy
and adequate remedy in the ordinary course of law.
Hence, the CA denied the petition filed by petitioner on
the principle that certiorari cannot be used as substitute
for an appeal that has been lost.
Although certiorari cannot be generally used as a
substitute for a lapsed appeal, the CA lost sight of the
fact, however, that the rule had been relaxed on a
number of occasions, where its rigid application will result
in a manifest failure or miscarriage of justice. This Court
has allowed the issuance of a writ of certiorari despite the
availability of appeal where the latter remedy is not
adequate or equally beneficial, speedy and sufficient or
there is need to promptly relieve the aggrieved party from
the injurious effects of the acts of an inferior court or
tribunal. In SMI Development Corporation v. Republic of
the Philippines, this Court significantly upheld the CAs
grant of the Rule 65 petition for certiorari filed in lieu of an
ordinary appeal which was not considered a speedy and
adequate remedy that can sufficiently address the urgent
need of the National Childrens Hospital to expand and
extend quality medical and other health services to
indigent patients. Indeed, certiorari and appeal are not
mutually exclusive remedies in certain exceptional cases,
such as when there is grave abuse of discretion or when
public welfare so requires.
Petitioner has more than amply demonstrated that the
RTCs issuance of the assailed orders dated 17
November 2003 and 31 May 2004 was attended with
grave abuse of discretion. In the context of a Rule 65
petition for certiorari, grave abuse of discretion is meant
such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. It has been ruled that the
abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law or to act at all in
contemplation of law, as where the power is exercised in
an arbitrary and despotic manner by reason of passion or
hostility. To our mind, the grave abuse of discretion
imputable against the RTC was manifest as early in the
assailed 17 November 2003 order where, without giving
any rationale therefor, and while it upheld petitioners right
of expropriation over Lot Nos. 21609-A, 21609-D, 21609-
F, 21609-G, 21609-H, 21609-I and 21609-J, it excluded
the area occupied by the Villa Marina Beach Resort
owned and operated by respondent Rodolfo Legaspi,
Sr. No less than the Constitution mandates that (n)o
decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the
law on which it is based.
Since it is a requirement of due process that the parties to
a litigation be informed of how it was decided, with an
explanation of the factual and legal reasons that led to the
conclusions of the court, the rule is settled that a decision
that does not conform to the form and substance required
by the Constitution and the law is void and deemed
legally inexistent. In Yao v. Court of Appeals, this Court
ruled as follows:
Faithful adherence to the requirements of Section 14,
Article VIII of the Constitution is indisputably a paramount
component of due process and fair play. It is likewise
demanded by the due process clause of the Constitution.
The parties to a litigation should be informed of how it
was decided, with an explanation of the factual and legal
reasons that led to the conclusions of the court. The court
cannot simply say that judgment is rendered in favor of X
and against Y and just leave it at that without any
justification whatsoever for its action. The losing party is
entitled to know why he lost, so he may appeal to the
higher court, if permitted, should he believe that the
decision should be reversed. A decision that does not
clearly and distinctly state the facts and the law on which
it is based leaves the parties in the dark as to how it was
reached and is precisely prejudicial to the losing party,
who is unable to pinpoint the possible errors of the court
for review by a higher tribunal. More than that, the
requirement is an assurance to the parties that, in
reaching judgment, the judge did so through the
processes of legal reasoning. It is, thus, a safeguard
against the impetuosity of the judge, preventing him from
deciding ipse dixit. Vouchsafed neither the sword nor the
purse by the Constitution but nonetheless vested with the
sovereign prerogative of passing judgment on the life,
liberty or property of his fellowmen, the judge must
ultimately depend on the power of reason for sustained
public confidence in the justness of his decision.
Thus the Court has struck down as void, decisions of
lower courts and even of the Court of Appeals whose
careless disregard of the constitutional behest exposed
their sometimes cavalier attitude not only to their
magisterial responsibilities but likewise to their avowed
fealty to the Constitution.
The RTC compounded its error when, acting on the
motions for reconsideration filed by the parties, it issued
the assailed 31 May 2004 Order, denying petitioners right
of expropriation over Lot Nos. 21609-A, 21609-D, 21609-
F, 21609-G, 21609-H, 21609-I and 21609-J, on the
ground that the same were already used by respondents
for their businesses and/or residences. Subject to the
direct constitutional qualification that private property shall
not be taken for public use without just compensation, the
power of eminent domain is, after all, the ultimate right of
the sovereign power to appropriate any property within its
territorial sovereignty for a public purpose thru a method
that partakes the nature of a compulsory sale. The fact
that said lots are being utilized by respondents Legaspis
for their own private purposes is, consequently, not a
valid reason to deny exercise of the right of expropriation,
for as long as the taking is for a public purpose and just
compensation is paid.
Our review of the documents attached to the pleadings
filed in connection with the petition before the CA and this
Court also failed to yield any basis for the RTCs
pronouncement that UPV excluded the area occupied by
the Villa Marina Resort from its exercise of the right of
expropriation. This is belied by petitioners motion for
continuation of the condemnation proceedings for the
seven remaining lots into which Lot No. 1 of Psu-193912
Amd. had been subdivided, UPVs 13 April 1998 letter-
protest against respondent Rodolfo Legaspi, Sr.s
occupation of the property, its motion for the grant of a
writ of possession of the entire lot and the motions for
reconsideration of petitioner and UPV filed from the
condemnation order dated 17 November 2003.
Considering that the site of the Villa Marina Resort
appears to have already been earmarked for UPVs
proposed National Institute of Marine Biotechnology, the
RTC clearly abused its discretion when it ruled that the
exclusion of 31,617 square meters from the original
40,133 sought to be expropriated would not adversely
affect UPVs operations. Granted that no part of the
ground of a public cemetery can be taken for other public
uses under a general authority, there is, likewise, no
showing in the record of the location and area of the
public cemetery of Miag-ao in relation to the subject
property.
In sum, we find the RTC gravely abused its discretion
when, without stating the factual and legal bases therefor,
it issued the assailed 17 November 2003 condemnation
order, excluding the area occupied by the Villa Marina
Resort from petitioners exercise of its right of
expropriation. The RTC likewise gravely abused its
discretion when, in total disregard of the evidence on
record, it issued the second assailed 31 May 2004 order
which reconsidered its first assailed order and altogether
denied petitioners right of expropriation over Lot Nos.
21609-A, 21609-D, 21609-F, 21609-G, 21609-H, 21609-I
and 21609-J.
WHEREFORE, premises considered, the CAs Decision
dated 26 April 2007 is REVERSED and SET ASIDE. In
lieu thereof, another is entered NULLYING the assailed
orders dated 17 November 2003 and 31 May 2004 and
directing the Regional Trial Court of Iloilo City, Branch 38
to resolve the case in compliance with Section 14, Article
VIII of the Constitution and in accordance with the
evidence on record.
SO ORDERED.
===========================================
G.R. No. 169957 July 11, 2012
NATIONAL POWER CORPORATION, Petitioner,
vs.
SPS. FLORIMON V. ILETO and ROWENA NOLASCO,
SPS. SERAFIN VALERO and TERESITA GONZALES,
SPS. CORNELIO VALDERAMA and REMEDIOS CRUZ,
SPS. ALEJANDRINO VALDERAMA and TEODORO
STA. MARIA, RENATO VALDERAMA, all represented
by SPS. CORNELIO VALDERAMA and REMEDIOS
CRUZ; HEIRS OF APOLONIO DEL ROSARIO,
represented by RICARDO DEL ROSARIO; DANILO
BRILLO, WILFREDO BRILLO, REYNALDO BRILLO,
THELMA BRILLO BORDADOR, and MA. VICTORIA
BRILLO VILLARICO, represented by DANILO BRILLO;
SPS. RUDY and MODESTA VELASCO; ROSEMARIE
FUKUSUMI (vendee) / DANILO HERRERA (vendor);
HEIRS OF SOFIA MANGAHAS VDA. DE SILVA,
ROGELIO DE SILVA, APOLONIA DE SILVA GENER,
and LUCIO DE SILVA, all represented by ROGELIO
DE SILVA; and FRANCISCA MATEO-
EUGENIO, Respondents.
x-----------------------x
Gonzales

G.R. No. 171558 July 11, 2012 5. Sps. Maronquillo, CLOA 9,784 sqm.
Cornelio San Rafael, T-
NPC v. ILETO,678 SCRA 107 (2012) Valderama Bulacan 2700
and
BRION, J.: Remedios
Cruz
We resolve the consolidated petitions for review 6. Heirs of Salakot, San 16,930
on certiorari assailing the decision of the Court of Appeals Apoloni[o] Miguel, sqm.
(CA) in CA-G.R. CV No. 72723 dated September 30, del Rosario Bulacan
2005, as well as the appellate court's resolution dated
February 14, 2006 denying the motions for 7. Danilo Brillo Gulod, CLOA 15,706
reconsideration of Danilo Brillo, Wilfredo Brillo, Lauro et al. Meycauayan, T- sqm.
Bril!o, Reynaldo Brillo, Thelma Brillo Bulacan 7844

8. Sps. 499 San Juan T- 16,608

Bordador, Spouses Rudy Velasco and Modesta Velasco,
Modesta St., Rio 90121 sqm.
and Spouses Serafin Valero and Teresita Valero. The
and Vista, Sabang,
assailed CA decision affirmed with modification the
Rudy Baliuag,
decision of the Regional Trial Court (RTC), Branch 17,
Velasco Bulacan
Malolos, Bulacan, in Civil Case No. 796-M-97.
9. Rosemarie Sapang Palay, 1,841.76
BACKGROUND FACTS Fukosumi/ San Jose del sqm.
Danilo Monte,
On October 7, 1997, the National Power Corporation Herrera Bulacan
(NPC) filed a complaint, which was subsequently
amended, seeking to expropriate certain parcels of land 10. Heirs of Tigbe, 9,186 sqm.
in Bulacan, in connection with its Northwestern Luzon Sofia Norzagaray
Transmission Line project. Specifically, the NPC sought Mangahas
to expropriate the following: 11. Francisca Tigbe, 984 sqm.
Mateo- Norzagaray
TITLE AFFECTED Eugenio
OWNER LOCATION
NO. AREA

1. Sps. Sapang Putol, T- 42 sqm. On October 22, 1997, the NPC deposited with the Land
Florimon San Ildefonso, 36242 Bank of the Philippines the amount of P204,566.60,
Ileto Bulacan representing the initial provisional value of the properties
and sought to be expropriated. Consequently, the NPC
Rowena received actual possession of these properties on
Nolasco December 16, 1997.

2. Sps. - do - CLOA 2,780 sqm. To determine the issue of just compensation, the RTC
Florimon T- constituted a team of commissioners, composed of the
Ileto 6277 following: Atty. Luis Manuel Bugayong, representing the
and NPC; Barangay Captain Manuel Villacorta, representing
Rowena the defendants; and Branch Clerk of Court Ariston Tayag,
Nolasco acting as the Chairperson.
3. Sps. BMA, CLOA 8,157.5
On September 23, 1998, the Heirs of Sofia Mangahas
Serafin Balagtas, San T- sqm.
and the NPC filed with the RTC a jointly executed
Valero Rafael, 1612
compromise agreement where they agreed that NPC
and Bulacan
would acquire 13,855 square meters of the 95,445 square
Teresita
meter property owned by the Heirs of Sofia Mangahas. In
Gonzales
turn, the NPC would pay the Heirs of Sofia Mangahas the
4. Sps. - do - CLOA 7,078 sqm. total amount of P3,463,750.00 as just compensation for
Serafin T- the property, with an assessed value of P250.00 per
Valero 1953 square meter. The RTC found the compromise
and agreement to be proper, and rendered a partial decision
Teresita approving it on September 28, 1998.
Since Commissioner Bugayong, representing the NPC,
could not agree with the other commissioners on the
manner of valuation, he chose to submit a separate report
on February 25, 1999. He recommended in this separate
report that the NPC pay an easement fee of 10% of
P85.00 per square meter for the agricultural land that
would merely be traversed by the transmission lines, full
market value for the land on which the steel towers would
actually be constructed, plus the cost of crops and other
improvements actually damaged during construction.
In turn, Commissioner Tayag and Commissioner
Villacorta submitted their report on March 4, 1999,
recommending that the just compensation for all the
affected lands be pegged at P250.00 per square meter.
The report took into account another commissioners’
report in a different expropriation case filed by the NPC
that was pending before Branch 10 of the same court,
which fixed the just compensation per square meter of
agricultural lands at P265.00, residential land at
P1,540.00, and commercial land at P2,300.00. In the end,
however, the commissioners were greatly persuaded by
the value fixed in the compromise agreement between
NPC and the Heirs of Sofia Mangahas.
The commissioners’ report was set for hearing on June 7,
1999, where the Sps. Florimon V. Ileto and Rowena
Nolasco, the Sps. Valero and the Brillos manifested their
consent to the recommended price of P250.00 per square
meter. Consequently, on August 20, 1999, the RTC
approved the report submitted by Commissioner Tayag
and Commissioner Villacorta, and rendered a decision.
The RTC subsequently issued an amended decision
dated September 16, 1999 to reflect the corrected
spelling of the landowners’ surnames and locations of
properties found in the original decision. The dispositive
portion of the amended decision reads:
WHEREFORE, in the light of all the foregoing, the
following properties are hereby expropriated in favor of
the Government:
1. 42 square meters of the land of Sps. Florimon Ileto &
Rowena Nolasco situated at Sapang Putol, San
Ildefonso, Bulacan covered by TCT No. T-36242 whose
technical description is mentioned in Annex A of the
Second Amended Complaint (p. 149, Record);
2. 2,780 square meters of the land of Sps. Florimon Ileto
& Rowena Nolasco situated at Sapang Putol, San
Ildefonso, Bulacan covered by CLOA-T-6277 whose
technical description is mentioned in Annex B of the
Second Amended Complaint (p. 150, Record);
3. 999 square meters of the land of Sps. Serafin Valero &
Teresita Gonzales situated at BMA, Balagtas, San
Rafael, Bulacan covered by CLOA T-1612 whose
technical description is mentioned in Annex C of the
Second Amended Complaint (p. 151, Record);
4. 8,954 square meters of the land of Sps. Serafin Valero
& Teresita Gonzales situated at BMA, Balagtas, San
Rafael, Bulacan covered by CLOA T-1953 whose
technical description is mentioned in Annex D of the
Second Amended Complaint (p. 152, Record);
5. 9,784 square meters of the land of Sps. Cornelio
Valderama & Remedios Cruz situated at Moronquillo, San
Rafael, Bulacan covered by CLOA T-2700, whose
technical description is mentioned in Annex E of the
Second Amended Complaint (p. 153, Record);
6. 16,930 square meters of the land of the Heirs of
Apolonio del Rosario situated at Salakot, San Miguel,
Bulacan whose technical description is mentioned in
Annex F of the Second Amended Complaint (p. 154,
Record);
7. 15,706 square meters of the land of Danilo Brillo, Lauro
Brillo, Wilfredo Brillo, Reynaldo Brillo, Thelma Brillo-
Bordador and Ma. Victoria Brillo-Villarico situated at
Garlang (Anyatam), San Ildefonso, Bulacan covered by
CLOA T-7844 whose technical description is mentioned
in Annex G of the Second Amended Complaint (p. 155,
Record);
8. 16,608 square meters of the land of Spouses Modesta
and Rudy Velasco situated at 499 San Juan St., Rio
Vista, Sabang, Baliuag, Bulacan covered y T-90121
whose technical description is mentioned in Annex H of
the Second Amended Complaint (p. 156, Record);
9. 1,841.76 square meters of the land of Rosemarie
Fuk[o]sumi/Danilo Herrera situated at Sapang Palay, San
Jose del Monte, Bulacan whose technical description is
mentioned in Annex I of the Second Amended Complaint
(p. 157, Record);
10. 984.72 square meters of the land of Francisca Mateo-
Eugenio situated at Tigbe, Norzagaray, Bulacan whose
technical description is mentioned in Annex K of the
Second Amended Complaint (p. 159, Record).
As a consequence, the Court hereby allows the National
Power Corporation to remain in possession of the
aforementioned areas which it had entered on December
16, 1997 and further orders it to pay the respective
owners thereof the following just compensation, with legal
interest from the taking of possession (Sec. 10, Rule 67
of [the] 1997 Rules of Civil Procedure), and after
deducting the sums due the Government for unpaid real
estate taxes and other charges:
OWNER JUST COMPENSATION
1. Sps. Florimon P10,500.00 for the land covered
Ileto by TCT No. 36242
& Rowena P695,000.00 for the land
Nolasco covered by CLOA T-6277
2. Sps. Serafin P249,750.00 for the land covered President for Projects Management and Engineering
Valero by CLOA-T-1612 Services, via NPC Board Resolution No. 97-246. The CA
& Teresita P2,238,500.00 for the land also upheld the P250.00 valuation fixed in the
Gonzales covered by CLOA T-1953 compromise agreement, on the ground that this is the
amount of just compensation for residential lands listed
3. Sps. Cornelio P2,446,000.00 for the land by the NPC in its Board Resolution No. 97-246, and the
Valderama & covered by CLOA T-2700 portion of land expropriated by the NPC is classified as
Remedios Cruz residential land.

4. Heirs of P4,232,500.00 for their land at However, the CA held that the RTC erred when it fixed
Apolonio del Salakot, San Miguel, Bulacan the valuation of the other expropriated lands at P250.00,
Rosario distinguishing the lands owned by the Heirs of Sofia
Mangahas from the other expropriated lands, based on
5. Danilo Brillo, P3,926,500.00 for the land
their classification. The CA thus computed the value of
et al. covered by CLOA T-7844
the other expropriated lands owned by the Sps. Ileto,
6. Sps. Modestra P4,152,000.00 for their land at Rosemarie Fukosumi or Danilo Herrera, and Francisca
& Rudy Velasco Sabang, Baliuag Mateo Eugenio, based on the schedule of fair market
values attached to NPC Board Resolution No. 97-246.
7. Rosemarie P460,440.00 for their land at
Fukosumi Sapang Palay, On the other expropriated lands, the CA found that it
Danilo Herrera San Jose del Monte could not fix the value of just compensation of these
properties because the schedule of fair market values for
8. Francisca P246,180.00 for her land at Tigbe, lands in their areas in Bulacan had not been submitted as
Mateo Eugenio Norzagaray evidence. The CA thus instructed the RTC to fix the just
compensation of these properties, based on the
The plaintiff is further directed to pay the defendants the appropriate schedule of fair market values.
respective sums due them within sixty(60) days from the
registration of this decision with the Registry of Deeds of Lastly, the CA held that the amounts that the NPC had
Bulacan or other government agencies concerned and already paid the landowners corresponding to the
the issuance of the corresponding titles in the name of the easement fee or tower occupancy fee should be
plaintiff. deducted from the just compensation to be awarded to
each landowner. The dispositive portion of the CA
Let a copy of this Decision be furnished the Office of the decision reads:
Register of Deeds of Bulacan which is directed to register
it as a memorandum on the titles concerned and to issue WHEREFORE, the decision appealed from is AFFIRMED
forthwith in favor of the plaintiff such titles over the with MODIFICATION.
expropriated areas described in the foregoing paragraphs
Let just compensation be paid to the following
After theRTC denied NPC’s motion for reconsideration, defendants, as follows:
the Office of the Solicitor General (OSG), representing
the NPC, filed an appeal with the CA, assailing the
Sps. Florimon Ileto & Rowena
approval of the compromise agreement between the ₱ 27,300.00
Heirs of Sofia Mangahas and the NPC, as well as the Nolasco
propriety of paying just compensation instead of merely Sps. Florimon Ileto & Rowena ₱
the 10% easement fee prescribed in Section 3A of Nolasco 166,800.00
Republic Act No. 6395, as amended.
Rosemarie Fuk[o]sumi/Danilo ₱
THE CA RULING Herrera 919,008.30

Francisca Mateo Eugenio ₱56,129.04

In its September 30, 2005 decision, the CA held that
since the OSG had not been served with a copy of the
partial decision that approved the compromise agreement
between the NPC and the Heirs of Sofia Mangahas, this
decision did not become final and executory, and could
thus be properly questioned by the OSG.
The CA affirmed the validity of the compromise
agreement between the Heirs of Sofia Mangahas and the
NPC, noting that the NPC was represented by its duly
authorized representative, Thomas Agtarap, the Vice
The trial court is directed to compute the just
compensation of the other defendants’ properties based
on the classification of each, in accordance with the
schedule of fair market values of the National Power
Corporation for the Northwestern Luzon Transmission
Line, less the initial fees paid to the defendants as
easement fees or tower occupancy fees. (emphases and
italics supplied)
Danilo Brillo, et al., Sps. Velasco, and Sps. Valero filed
separate motions for reconsideration to assail the CA
decision, which were all subsequently denied in the CA’s
February 14, 2006 resolution.
THE PRESENT PETITIONS
On April 6, 2006, Danilo Brillo, et al., filed a petition for
review on certiorari with the Court, docketed as G.R. No.
171558, assailing the CA’s instruction to the RTC to apply
the schedule of fair market values attached to NPC Board
Resolution No. 97-246, to determine just compensation
for their lands.
In turn, the OSG, representing the NPC, filed a petition for
review on certiorari with the Court on April 7, 2006,
docketed as G.R. No. 169957, to question the validity of
the compromise agreement between the NPC and the
Heirs of Sofia Mangahas. The OSG also claimed that the
RTC erred when it decided to pay the landowners just
compensation for the acquisition of the subject properties
instead of paying the rate fixed for an aerial easement of
right of way.
Lastly, the Sps. Ileto filed a petition for review on
certiorari, docketed as G.R. No. 171583. However, the
Court denied this petition for lack of merit in its April 17,
2006 Resolution.
On October 3, 2007, the Court issued a Resolution,
ordering the consolidation of G.R. Nos. 169957 and
171558.
THE ISSUES
The OSG cites the following grounds in support of its
petition in G.R. No. 169957:
I TO NPC BOARD RESOLUTION NO. 97-246 TO
The Compromise Agreement entered into between
petitioner NPC and the heirs of Sofia Mangahas vda. De
Silva is null and void.
II
The trial court erred in fixing the amount of just
compensation purportedly for the acquisition of the
property despite the fact that the NPC acquired only an
aerial easement of right of way over the agricultural lands
of respondents.
III
The easement fees paid to respondents heirs of Apolonio
Del Rosario, Spouses Cornelio and Remedios
Valderama, and Spouses Rudy and Modesta Velasco
should be deducted from the correct amount of easement
fee or just compensation to which they are entitled.
On the other hand, the Brillos raise the following
questions of law in their petition in G.R. No. 171558:
[a] Is the National Power Corporation Board Resolution
No. 97-246 (Napocor Schedule of Fair Market Value)
valid or constitutional and does it bind the lot owners
whose land is now the subject of xxx expropriation
proceeding filed by the said National Power Corporation.
xxxx
[b] Can the Court of Appeals impose upon the trial court
to follow the Napocor Board Resolution No. 97-246 in the
determination of the just compensation of the petitioners’
land, despite the fact that this resolution was never xxx
presented during the trial nor mentioned, nor included in
the decision rendered by the lower court nor raised as an
error by the Napocor in their appeal and totally disregard
the result and findings of the trial court as to the just
compensation of the petitioners’ land which was reached
after due hearing and recommendation of the court
appointed commissioners.
In sum, the issues for resolution are:
(1) WHETHER THE CA ERRED IN AFFIRMING THE
VALIDITY OF THE COMPROMISE AGREEMENT
BETWEEN THE NPC AND THE HEIRS OF SOFIA
MANGAHAS;
(2) WHETHER THE CA ERRED WHEN IT HELD THAT
THE NPC HAD TO PAY JUST COMPENSATION TO
THE LANDOWNERS INSTEAD OF A MERE AERIAL
EASEMENT FEE FOR THE SUBJECT PROPERTIES;
and
(3) WHETHER THE CA ERRED IN USING THE
SCHEDULE OF FAIR MARKET VALUES ATTACHED
DETERMINE THE JUST COMPENSATION OF THE
OTHER SUBJECT PROPERTIES.
THE COURT’S RULING
We find the petition filed by the Brillos partially
meritorious.
Procedural issue
We state at the outset that this Court already denied the
petition for review on certiorari filed by the Sps. Ileto
(docketed as G.R. No. 171583) in our Resolution dated
April 17, 2006. This denial had the effect of making the
assailed CA judgment final as to the Sps. Ileto, but only to
prevent them from seeking any other affirmative relief
from this Court. We note, that the NPC included the Sps.
Ileto as respondents in the appeal they filed before this
Court. They are thus parties to the case with respect to
the issues raised in the NPC’s appeal. Accordingly, the
Court’s determination on the issue raised by the NPC with
respect to the propriety of the manner of computing just
compensation will also be binding on the Sps. Ileto.
Validity of the compromise agreement
In assailing the compromise agreement between the NPC
and the Heirs of Sofia Mangahas on the ground that the
valuation is based on the erroneous classification of the
land as residential, the OSG essentially asks this Court to
determine whether the land subject of the assailed
compromise agreement is residential or agricultural in
nature. This is clearly a factual question, requiring as it
does a review of the evidence introduced in, and
considered by, the tribunals below. Thus, this question is
not reviewable by this Court in a petition for review on
certiorari under Rule 45 of the Rules of Court. While
jurisprudence has established several exceptions to this
rule, we find that none of them apply under the present
circumstances.
Moreover, it is a settled doctrine that a compromise
agreement, once approved by final order of the court, has
the force of res judicata between the parties and cannot
be disturbed except for vices of consent or forgery. We
said in Republic v. Florendo:
When a compromise agreement is given judicial approval,
it becomes more than a contract binding upon the parties.
Having been sanctioned by the court, it is a determination
of the controversy and has the force and effect of a
judgment. It is immediately executory and not appealable,
except for vices of consent, forgery, fraud,
misrepresentation and coercion. Thus, although a
compromise agreement has the effect and authority of res
judicata upon the parties even without judicial approval,
no execution may issue until it has received the approval
of the court where the litigation is pending and
compliance with the terms of the agreement is thereupon
decreed. [emphasis ours]
The pleadings submitted in the present case reveal that
there has never been any allegation that the assailed
compromise agreement suffers from any of the vices of
consent or forgery. Neither has the OSG ever claimed
that the NPC was defrauded or coerced into agreeing to
the compromise agreement. There is, evidently, no legal
basis to question the validity of the compromise
agreement.
Lastly, we reiterate that compromises are favored and
encouraged by the courts, and parties are bound to abide
by them in good faith. Since compromise agreements
have the force of law between the parties, no party may
discard them unilaterally. This is especially true under the
present circumstances, where the NPC has already
enjoyed the benefits of the assailed compromise
agreement, having been in possession of the subject land
since 1998.
NPC’s power of eminent domain
Republic Act No. 6395, entitled "An Act Revising the
Charter of the National Power Corporation," grants the
NPC the power to acquire "property incident to, or
necessary, convenient or proper to carry out the purposes
for which it was created," namely: the construction of
generation and transmission facilities to provide electricity
for the entire country.
In an effort to streamline the NPC’s exercise of this
power, Section 3A of Republic Act No. 6395 provides:
Section 3A. In acquiring private property or private
property rights through expropriation proceedings where
the land or portion thereof will be traversed by the
transmission lines, only a right-of-way easement thereon
shall be acquired when the principal purpose for which
such land is actually devoted will not be impaired, and
where the land itself or portion thereof will be needed for
the projects or works, such land or portion thereof as
necessary shall be acquired.
xxx
(b) With respect to the acquired right-of-way easement
over the land or portion thereof, not to exceed ten percent
(10%) of the market value declared by the owner or
administrator or anyone having legal interest in the
property, or such market value as determined by the
assessor whichever is lower.
In addition to the just compensation for easement of right-
of-way, the owner of the land or owner of the
improvement, as the case may be, shall be compensated
for the improvements actually damaged by the
construction and maintenance of the transmission lines,
in an amount not exceeding the market value thereof as
declared by the owner or administrator, or anyone having
legal interest in the property, or such market value as
determined by the assessor whichever is lower; Provided,
that in cases any buildings, houses and similar structures
are actually affected by the right-of-way for the
transmission lines, their transfer, if feasible, shall be
effected at the expense of the Corporation; Provided,
further, that such market value prevailing at the time the
Corporation gives notice to the landowner or
administrator or anyone having legal interest in the
property, to the effect that his land or portion thereof is
needed for its projects or works shall be used as basis to
determine the just compensation therefor."
The NPC, relying on the above-quoted provision, argues
that the CA erred when it ordered the payment of just
compensation for the properties in question, given that
most of the properties were subject only to an aerial
easement of right of way, with the NPC requiring the use
of the area above the subject lands for its transmission
lines.
We have already established in a number of casesthe
flaw behind the NPC’s argument. At the heart of this
argument is the mistaken assumption that what are
involved are mere liens on the property in the form of
aerial easements. While it may be true that the
transmission lines merely pass over the affected
properties, the easement imposes the additional limitation
that the landowners are prohibited from constructing any
improvements or planting any trees that exceed three (3)
meters within the aerial right of way area. This prohibition
clearly interferes with the landowners’ right to possess
and enjoy their properties.
As we explained in National Power Corporation v.
Manubay Agro-Industrial Development Corporation:
Granting arguendo that what petitioner acquired over
respondent's property was purely an easement of a right
of way, still, we cannot sustain its view that it should pay
only an easement fee, and not the full value of the
property. The acquisition of such an easement falls within
the purview of the power of eminent domain. This
conclusion finds support in similar cases in which the
Supreme Court sustained the award of just compensation
for private property condemned for public use. Republic v.
PLDT held thus:
"x x x. Normally, of course, the power of eminent domain
results in the taking or appropriation of title to, and
possession of, the expropriated property; but no cogent
reason appears why the said power may not be availed of
to impose only a burden upon the owner of condemned
property, without loss of title and possession. It is
unquestionable that real property may, through
expropriation, be subjected to an easement of right of
way."
True, an easement of a right of way transmits no rights
except the easement itself, and respondent retains full
ownership of the property. The acquisition of such
easement is, nevertheless, not gratis. As correctly
observed by the CA, considering the nature and the effect
of the installation power lines, the limitations on the use of
the land for an indefinite period would deprive respondent
of normal use of the property. For this reason, the latter is
entitled to payment of a just compensation, which must
be neither more nor less than the monetary equivalent of
the land. [citations omitted]
Apart from interfering with the attributes of ownership, we
have articulated in our observation in National Power
Corp. v. Sps. Gutierrez that these transmission lines,
because of the high-tension current that passes through
them, pose a danger to the lives and limbs of those in the
surrounding areas, and, thus, serve to limit the activities
that can be done on these lands.
We also declared in National Power Corporation v.
Purefoods Corporation that Section 3A of Republic Act
No. 6395, as amended (which provides a fixed formula in
the computation of just compensation in cases of
acquisition of easements of right of way) is not binding
upon this Court. This is in keeping with the established
rule that the determination of "just compensation" in
eminent domain cases is a judicial function.
Determination of just compensation
Having established the necessity of paying the
landowners just compensation for the affected properties
instead of mere easement fees, we move on to the issue
of the amount of just compensation.
(a) CA valuation is not supported by evidence
In the present case, the CA set aside the RTC ruling that
fixed the just compensation of all the subject properties at
P250.00 per square meter, and held that since the RTC
had accepted the values in the Schedule of Fair Market
Values contained in NPC Board Resolution No. 97-246 as
correct, it should have applied these values in
determining the just compensation of the subject lands.
The Brillos disagree with this point, arguing that the
determination of just compensation is a judicial function
that cannot be left to the discretion of the expropriating
agency. To counter the CA’s statement that the RTC
accepted the appraised values contained in the Schedule
of Fair Market Values of NPC Board Resolution No. 97-
246, the Brillos point out that there is nothing in the RTC
decision that would indicate that it accepted these values.
The Brillos add that NPC Board Resolution No. 97-246
was never even presented during the trial or offered in
evidence as regards the validity of the values contained
therein. Finally, the fact that the RTC constituted a team
of commissioners to determine the just compensation of
the subject properties directly contradicts the CA’s ruling
that the RTC had accepted the values in the Schedule of
Fair Market Values appended to NPC Board Resolution
No. 97-246. We find the Brillos’ arguments meritorious.
The determination of just compensation in expropriation
cases is a function addressed to the discretion of the
courts, and may not be usurped by any other branch or
official of the government. We already established in
Export Processing Zone Authority v. Dulay that any
valuation for just compensation laid down in the statutes
may serve only as guiding principle or one of the factors
in determining just compensation, but it may not
substitute the courts' own judgment as to what amount
should be awarded and how to arrive at such amount. We
said:
The determination of "just compensation" in eminent
domain cases is a judicial function. The executive
department or the legislature may make the initial
determinations[,] but when a party claims a violation of
the guarantee in the Bill of Rights that private property
may not be taken for public use without just
compensation, no statute, decree, or executive order can
mandate that its own determination shall prevail over the
court’s findings. Much less can the courts be precluded
from looking into the "just-ness" of the decreed
compensation.
The CA accepted as correct all the values set forth in the
Schedule of Fair Market Values appended to NPC Board
Resolution No. 97-246 on the sole ground that they had
already been accepted by the trial court. However, after
carefully reviewing the RTC’s decision dated August 20,
1999, we find nothing there to indicate that the court a
quo accepted these values as accurate. As a matter of
fact, the subject board resolution was not even mentioned
in the RTC’s decision. The only time NPC Board
Resolution No. 97-246 was mentioned was in the partial
decision of the RTC, which dealt exclusively with the land
owned by the Heirs of Sofia Mangahas, and thus, it
cannot be applied to the other expropriated properties.
The "just"-ness of just compensation can only be attained
by using reliable and actual data as bases in fixing the
value of the condemned property. The CA attempts to
provide the legal basis for the Schedule of Fair Market
Values, noting that it is based on the joint appraisal report
on fair market value of lands by Cuervo Appraisal, Inc.,
Development Bank of the Philippines, and the Land Bank
of the Philippines, and the fair market values established
by the respective Provincial Appraisal Committee of
Zambales, Pangasinan, Nueva Ecija, Pampanga, and
Bulacan, as well as the City Appraisal Committee of San
Carlos and Cabanatuan.
However, as correctly observed by the Brillos, the
determination of just compensation cannot be left to the
self-serving discretion of the expropriating agency. The
unjustness of the CA’s ruling is all the more apparent
when we consider the undeniable fact that since the fair
market values appended to NPC Board Resolution No.
97-246 were not presented before the lower court, the
affected landowners were never given the opportunity to
present their evidence to counter these valuations. In
these lights, the CA gravely erred in relying solely on
NPC Board Resolution No. 97-246 to determine the just
compensation due the landowners.
(b) RTC valuation not supported by evidence
Similarly, we cannot affirm the RTC’s decision in fixing
just compensation of all the subject properties at P250.00
per square meter, for lack of legal or factual basis.
In National Power Corporation v. Manubay Agro-Industrial
Development Corporation, we defined just compensation
as:
The full and fair equivalent of the property taken from its
owner by the expropriator.1âwphi1 The measure is not
the taker’s gain, but the owner’s loss. The word "just" is
used to intensify the meaning of the word "compensation"
and to convey thereby the idea that the equivalent to be
rendered for the property to be taken shall be real,
substantial, full and ample.
In eminent domain or expropriation proceedings, the just
compensation to which the owner of a condemned
property is entitled is generally the market value. Market
value is "that sum of money which a person desirous but
not compelled to buy, and an owner willing but not
compelled to sell, would agree on as a price to be given
and received therefor." [The market value] is not limited to
the assessed value of the property or to the schedule of
market values determined by the provincial or city
appraisal committee. However, these values may serve
as factors to be considered in the judicial valuation of the
property. [citations omitted, emphasis ours]
To determine the just compensation to be paid to the
landowner, the nature and character of the land at the
time of its taking is the principal criterion.
In the present case, the RTC made a determination that
all the properties subject of the NPC’s expropriation
complaint, regardless of their location or classification,
should be valued at P250.00 per square meter. In arriving
at this valuation, the RTC explained, thus:
In order to determine the issue of just compensation, the
Court constituted a team of three commissioners chaired
by Atty. Aristan Tayag with Atty. Luis Manuel Bugayong
as representative of the plaintiff and Barangay Captain
Manuel Villacorta as representative of the landowners.
Eventually, the team of commissioners submitted its
report on March 4, 1999 adopting the recommendation of
just compensation in a similar case for eminent domain
docketed as Civil Case No. 690-M-97 of the Regional
Trial Court of Bulacan wherein it set the just
compensation for agricultural land at P265.00 per square
meter, residential land at P1,540.00 per square meter,
and commercial land at P2,300.00 per square meter.
However, considering that a partial decision was already
rendered wherein the lands affected were valued at
P250.00 per square meter, the team recommended the
latter amount for the remaining properties subject of
expropriation.
It is apparent from this RTC explanation that
Commissioner Tayag and Commissioner Villacorta based
their recommendation for just compensation of all the
properties in question solely on the value fixed in the
compromise agreement between the NPC and the Heirs
of Sofia Mangahas. But in accepting this
recommendation, the RTC failed to take into
consideration the fact that the property subject of the
compromise agreement is located in Tigbe,
Norzagaray, Bulacan, while the other properties
subject of the RTC’s decision are located in other
municipalities in Bulacan.
Even worse, the commissioners’ recommended valuation
is not supported by any corroborative evidence, such as
sworn declarations of realtors in the area concerned and
tax declarations or zonal valuation from the Bureau of
Internal Revenue. It does not even appear from the
records that the commissioners conducted any ocular
inspections to determine the location, nature, character,
condition, and other specific features of the expropriated
lands that should have been taken into account before
making their recommendation.
Although the determination of just compensation lies
within the trial court’s discretion, it should not be done
arbitrarily or capriciously. The decision of the trial court
must be based on all established rules, correct legal
principles, and competent evidence. The courts are
proscribed from basing their judgments on speculations
and surmises.
In light of the foregoing, we find that the trial court
arbitrarily fixed the amount of just compensation due the
landowners at P250.00 per square meter. Thus, the Court
has no alternative but to remand the case to the court of
origin for the proper determination of just compensation.
As a final point, we remind the court of origin that in
computing the just compensation due the landowners for
their expropriated properties, the amounts already
received from the NPC should be deducted from the
valuation. These amounts are subject, however, to legal
interest, to be computed from the time the NPC took
possession of the properties on
December 16, 1997.
WHEREFORE, premises considered, the Court renders
the following judgment in the petitions at bar:
1) In G.R.No. 169957, the Court DENIES the petition for
review on certiorari filed by the National Power
Corporation, and AFFIRMS the decision of the Court of
Appeals in CA-G.R. CV No. 72723 dated September 30,
2005, insofar as it held that the compromise agreement
between the National Power Corporation and the Heirs of
Sofia Mangahas is valid.
2) In G.R. No. 171558, the Court PARTIALLY GRANTS
the petition for review on certiorari filed by Danilo Brillo, et
al., and REMANDS the case to the Regional Trial Court,
Branch 17 of Malolos, Bulacan for the proper
determination of just compensation of the expropriated
properties, subject to legal interest from the time the
National Power Corporation took possession of the
properties. No costs.
SO ORDERED.
===========================================
G.R. No. 125218. January 23, 1998
FILSTREAM INTERNATIONAL, INC. v. CA, 284 SCRA
716
FRANCISCO, J.:
In resolving the instant petitions, the Court is tasked to
strike a balance between the contending interests when
the state exercised its power of eminent domain. On one
side we have the owners of the property to be
expropriated who must be duly compensated for the loss
of their property, while on the other is the State which
must take the property for public use.
Petitioner, Filstream International Inc., is the registered
owner of the properties subject of this dispute consisting
of adjacent parcels of land situated in Antonio Rivera
Street, Tondo II, Manila, with a total area of 3,571.10
square meters and covered by T.C.T. Nos. 203937,
203936, 169198, 169199, 169200 and 169202 of the
Register of Deeds of Manila.
On January 7, 1993, petitioner filed an ejectment suit
before the Metropolitan Trial Court of Manila (Branch 15)
docketed as Civil Case No. 140817-CV against the
occupants of the abovementioned parcels of land (herein
private respondents in G.R. No. 128077) on the grounds
of termination of the lease contract and non-payment of
rentals. Judgment was rendered by the MTC on
September 14, 1993 ordering private respondents to
vacate the premises and pay back rentals to petitioner.
Not satisfied, private respondents appealed the decision
to the Regional Trial Court of Manila, Branch 4 (Civil
Case No. 93-68130) which in turn affirmed the decision of
the MTC in its decision dated February 22, 1994. Still not
content, private respondents proceeded to the Court of
Appeals via a petition for review (CA-G.R. SP No.
33714). The result however remained the same as the
CA affirmed the decision of the RTC in its decision dated
August 25, 1994.
Thereafter, no further action was taken by the private
respondents, as a result of which the decision in the
ejectment suit became final and executory.
However, it appeared that during the pendency of the
ejectment proceedings private respondents filed on May
25, 1993, a complaint for Annulment of Deed of
Exchange against petitioner Filstream which was
docketed in Civil Case No. 93-66059 before the RTC of
Manila, Branch 43. It was at this stage that respondent
City of Manila came into the picture when the city
government approved Ordinance No. 7813 on November
5, 1993, authorizing Mayor Alfredo S. Lim to initiate the
acquisition by negotiation, expropriation, purchase, or
other legal means certain parcels of land registered under
T.C.T. Nos. 169193, 169198, 169190, 169200, 169202,
and 169192 of the Registry of Deeds of Manila which
formed part of the properties of petitioner then occupied
by private respondents. Subsequently, the City of Manila
approved Ordinance No. 7855 declaring the expropriation
of certain parcels of land situated along Antonio Rivera
and Fernando Ma. Guerero streets in Tondo, Manila
which were owned by Mr. Enrique Quijano Gutierez,
petitioners predecessor-in-interest. The said properties
were to be sold and distributed to qualified tenants of the
area pursuant to the Land Use Development Program of
the City of Manila.
On May 23, 1994, respondent City of Manila filed a
complaint for eminent domain (Civil Case No. 94-70560)
before the RTC of Manila, Branch 42, seeking to
expropriate the aforecited parcels of land owned by
petitioner Filstream which are situated at Antonio Rivera
Street, Tondo II, Manila.
Pursuant to the complaint filed by respondent City of
Manila,the trial court issued a Writ of Possession in favor
of the former which ordered the transfer of possession
over the disputed premises to the City of Manila.
At this juncture, petitioner Filstream filed a motion to
dismiss the complaint for eminent domain as well as a
motion to quash the writ of possession. The motion to
dismiss was premised on the following grounds: no valid
cause of action; the petition does not satisfy the
requirements of public use and a mere clandestine
maneuver to circumvent the writ execution issued by the
RTC of Manila, Branch 4 in the ejectment suit; violation of
the constitutional guarantee against non-impairment of
obligation and contract; price offered was too low hence
violative of the just compensation provision of the
constitution and the said amount is without the
certification of the City Treasurer for availability of
funds. With respect to the motion to quash the writ of
possession, petitioner raised the following
objections: failure to comply with Section 2 of Rule 67 of
the Rules of Court, Ordinance No. 7813 is a void
enactment for it was approved without a public hearing
and violative of the constitutional guarantee against
impairment of obligation and contracts; the price is too
low and unconscionable violating the just compensation
provision of the constitution, and the said writ is tainted
with infirmity considering the absence of a certification
from the City of Manila that there is an immediately
available fund for the subject expropriation.
Respondent City of Manila filed its opposition to petitioner
Filstreams two motion and to which petitioner accordingly
filed a reply. On September 30, 1994, the RTC of Manila,
Branch 42, issued an order denying petitioner Filstreams
motion to dismiss and the motion to quash the Writ of
Possession and declared as follows:
IN FINE, the defendants motion to dismiss and motion to
quash writ of possession are both without merit and are
hereby DENIED and the subject parcels of lands covered
by TCT Nos. 203937, 203936, 169198, 169199, 169200,
and 169202 (of the Register of Deeds of Manila) located
at Antonio Rivera Street, Tondo II, Manila with a total
area of 3,571.10 square meters are hereby declared
CONDEMNED in favor of the City of Manila for
distribution and resale to all poor and landless qualified
residents/tenants in the said area under the citys land-for-
the-landless program upon payment of just compensation
which is yet to be determined by this Court.
Petitioner filed a motion for reconsideration as well as a
supplemental motion for reconsiderationseeking the
reversal of the above-quoted order but the same were
denied. Still, petitioner filed a subsequent motion to be
allowed to file a second motion for reconsideration but it
was also denied.
Aggrieved, petitioner filed on March 31, 1996, a Petition
for Certiorari with the Court of Appeals (CA-G.R. SP No.
36904) seeking to set aside the September 30, 1994
order of the RTC of Manila, Branch 42. However, on
March 18, 1996, respondent CA issued a resolution
dismissing the petition in this wise:
It appearing that the above-entitled petition is insufficient
in form and substance -- it does not comply with Section
2(a), Rule 6 of the Revised Internal Rules of the Court of
Appeals which requires that the petition shall be x x x
accompanied by x x x other pertinent documents and
papers, aside from the fact that copies of the pleadings
attached to the petition are blurred and unreadable -- this
Court resolved to summarily DISMISS the same
(petition).
Petitioner filed a motion for reconsideration and attached
clearer copies of the pertinent documents and papers
pursuant to Section 2(a) Rule 6 of the Revised Internal
Rules of the Court of Appeals. But on May 20, 1996,
respondent CA issued a resolution denying the motion as
petitioner failed to submit clearer and readable copies of
the pleadings. This prompted petitioner to proceed to this
Court giving rise to the instant petition for review
on certiorari under Rule 45 and docketed herein as G.R.
No. 125218, assailing the dismissal of its petition by the
CA in its resolution dated March 18, 1996 as well as that
of its motion for reconsideration in the resolution dated
May 20, 1996.
Meanwhile, owing to the finality of the decision in the
ejectment suit (Civil Case No 140817 CV), the MTC of
Manila, Branch 15, upon motion of petitioner Filstream,
issued a Writ of Execution as well as a Notice to Vacate
the disputed premises. Private respondents filed a Motion
to Recall/Quash the Writ of Execution and Notice to
Vacate alleging the existence of a supervening event in
that the properties subject of the dispute have already
been ordered condemned in an expropriation proceeding
in favor of the City of Manila for the benefit of the qualified
occupants thereof, thus execution shall be
stayed. Petitioner opposed the motion, reiterating that the
decision in the ejectment case is already final and
executory and disputed private respondents right to
interpose the expropriation proceedings as a defense
because the latter were not parties to the same.
For its part, the City of Manila filed on March 13, 1996, a
motion for intervention with prayer to stay/quash the writ
of execution on the ground that it is the present
possessor of the property subject of execution.
In its order dated March 14, 1996, the MTC of Manila,
Branch 14, denied private respondents motion as it found
the allegations therein bereft of merit and upheld the
issuance of the Writ of Execution and Notice to Vacate in
petitioners favor. Subsequently, the trial court also denied
the motion filed by the City of Manila.
On April 22, 1996, the trial court issued an order
commanding the demolition of the structure erected on
the disputed premises. To avert the demolition, private
respondents filed before the RTC of Manila, Branch 14, a
Petition for Certiorari and Prohibition with prayer for the
issuance of a temporary restraining order and preliminary
injunction (docketed as Civil Case No. 96-78098). On
April 29, 1996, the RTC of Manila, Branch 33, issued a
TRO enjoining the execution if the writ issued in Civil
Case No. 140817-CV by the MTC of Manila, Branch 14.
Subsequently, the RTC issued a writ of preliminary
injunction on May 14, 1996.
On May 15, 1996, the City of Manila filed its Petition
for Certiorari and Prohibition with prayer for the issuance
of a temporary restraining order and preliminary injunction
which was raffled to Branch 23 of the RTC of Manila
(docketed as Civil Case No. 96-78382), seeking the
reversal of the orders issued by the MTC of Manila,
Branch 14, which denied its motion to intervene and
quash the writ of execution in Civil Case No. 140817-CV.
Thereafter, upon motion filed by the City of Manila, an
order was issued by the RTC of Manila, Branch 10,
ordering the consolidation of Civil Case No. 96-78382
with Civil Case No. 96-78098 pending before Branch 14
of the RTC of Manila. On May 21, 1996, the RTC of
Manila, Branch 14, issued an injunction in Civil Case No.
96-78098 enjoining the implementation of the writ of
execution until further orders from the court. Petitioner
Filstream filed a Motion to Dissolve the Writ of Preliminary
Injunction and to be allowed to post a counter-bond but
the trial court denied the same. Filstream then filed a
motion for reconsideration from the order of denial but
pending resolution of this motion for voluntary inhibition of
the presiding judge of the RTC of Manila, Branch 14. The
motion for inhibition was granted and as a result, the
consolidated cases (Civil Case No. 96-78382 and 96-
78098) were re-raffled to the RTC of Manila, Branch 33.
During the proceedings before the RTC of Manila, Branch
33, petitioner Filstream moved for the dismissal of the
consolidated cases (Civil Case No. 96-78382 and 96-
78098) for violation of Supreme Court Circular No. 04-94
(forum shopping) because the same parties, causes of
action and subject matter involved therein have already
been disposed of in the decision in the ejectment case
(Civil Case No. 140817) which has already become final
and executory prior to the filing of these consolidated
cases.
On December 9, 1996, an order was issued by the RTC
of Manila, Branch 33, ordering the dismissal of Civil
Cases Nos. 96-78382 and 96-78098 for violation of
Supreme Court Circular No. 04-94. Immediately
thereafter, petitioner Filstream filed an Ex-parte Motion for
Issuance of an Alias Writ of Demolition and Ejectment
and a supplemental motion to the same dated January 10
and 13, 1997, respectively, before the MTC of Manila,
Branch 15, which promulgated the decision in the
ejectment suit (Civil Case No. 140817-CV). On January
23, 1997, the court granted the motion and issued the
corresponding writ of demolition.
As a consequence of the dismissal of the consolidated
cases, herein private respondents filed a Petition
for Certiorari and Prohibition with prayer for the issuance
of a temporary restraining order and preliminary injunction
before the Court of Appeals (docketed as CA-G.R. SP
No. 43101) assailing the above-mentioned order of
dismissal by the RTC of Manila, Branch 33, as having
been issued with grave abuse of discretion tantamount to
lack or in excess of jurisdiction.
In a resolution dated January 28, 1997, the Court of
Appeals granted herein private respondents prayer for the
issuance of a temporary restraining order and directed
the MTC of Manila, Branch 15, to desist from
implementing the order of demolition dated January 23,
1997, unless otherwise directed.
At the conclusion of the hearing for the issuance of a writ
of preliminary injunction, the Court of Appeals, in its
resolution dated February 18, 1997, found merit in private
respondents allegations in support of their application of
the issuance of the writ and granted the same, to wit:
Finding that the enforcement or implementation of the writ
of execution and notice to vacate issued in Civil Case No.
140817-CV, the ejectment case before respondent Judge
Jiro, during the pendency of the instant petition, would
probably be in violation of petitioners right, and would
tend to render the judgment in the instant case
ineffectual, and probably work injustice to the petitioners,
the application for the issuance of a writ of preliminary
injunction is hereby GRANTED.
WHEREFORE, upon the filing of a bond in the amount
of P150,000.00, let a writ of preliminary injunction be
issued enjoining respondents, their employees, agents,
representatives and anyone acting in their behalf from
enforcing or executing the writ of execution and notice to
vacate issued in Civil Case No. 140817-CV of the court of
respondent Judge Jiro, or otherwise disturbing the status
quo, until further orders of this Court.
In turn, petitioner Filstream is now before this Court via a
Petition for Certiorari under Rule 65 (G.R. No. 128077),
seeking to nullify the Resolutions of the Court of Appeals
dated January 28, 1997 and February 18, 1997 which
granted herein private respondents prayer for a TRO and
Writ of Preliminary Injunction, the same being null and
void for having been issued in grave abuse of discretion.
Upon motion filed by petitioner Filstream, in order to avoid
any conflicting decision on the legal issues raised in the
petitions, the Court ordered that the later petition, G.R.
No. 128077 be consolidated with G.R. No. 128077 in the
resolution of March 5, 1997.
The issue raised in G.R. No. 125218 is purely procedural
and technical matter. Petitioner takes exception to the
resolutions of respondent CA dated March 18, 1996 and
May 20, 1996 which ordered the dismissal of its Petition
for Certiorari for non-compliance with Sec. 2(a) of Rule 6
of the Revised Internal Rules of the Court of Appeals by
failing to attach to its petition other pertinent documents
and papers and for attaching copies of pleadings which
are blurred and unreadable. Petitioner argues that
respondent appellate court seriously erred in giving more
premium to form rather than the substance.
We agree with the petitioner. A strict adherence to the
technical and procedural rules in this case would defeat
rather than meet the ends of justice as it would result in
the violation of the substantial rights of petitioner. At stake
in the appeal filed by petitioner before the CA is the
exercise of their property rights over the disputed
premises which have been expropriated and have in fact
been ordered condemned in favor of the City of Manila. In
effect, the dismissal of their appeal in the expropriation
proceedings based on the aforementioned grounds is
tantamount to a deprivation of property without due
process of law as it would automatically validate the
expropriation proceedings based on the aforementioned
grounds is tantamount to a deprivation of property without
due process of law as it would automatically validate the
expropriation proceedings which the petitioner is still
disputing. It must be emphasized that where substantial
rights are affected, as in this case, the stringent
application of procedural rules may be relaxed if only to
meet the ends of substantial justice.
In these instances, respondent CA can exercise its
discretion to suspend its internal rules and allow the
parties to present and litigate their causes of action so
that the Court can make an actual and complete
disposition of the issues presented in the case. Rather
than simply dismissing the petition summarily for non-
compliance with respondent courts internal rules,
respondent CA should have instead entertained petitioner
Filstreams petition for review on Certiorari, and ordered
petitioner to submit the corresponding pleadings which it
deems relevant and replace those which are
unreadable. This leniency could not have caused any
prejudiced to the rights of the other parties.
With regard to the other petition, G.R. No. 128077,
petitioner Filstream objects to the issuance by respondent
CA of the restraining order and the preliminary injunction
enjoining the execution of the writ of demolition issued in
the ejectment suit (Civil Case No. 140817-CV) as an
incident to private respondents pending petition assailing
the dismissal by the RTC of Manila, Branch 33, of the
consolidated petitions for certiorari filed by private
respondents and the City of Manila on the ground of
forum shopping.
The propriety of the issuance of the restraining order and
the writ of preliminary injunction is but a mere incient to
the actual controversy which is rooted in the assertion of
the conflicting rights of the parties in this case over the
disputed premises. In order to determine whether private
respondents are entitled to the injunctive reliefs granted
by respondent CA, we deemed it proper to extract the
source of discord.
Petitioner Filstream anchors its claim by virtue of its
ownership over the properties and the existence of a final
and executory judgment against private respondents
ordering the latters ejectment from the premises (Civil
Case No. 140817-CV).
Private respondents claim on the other hand hinges on an
alleged supervening event which has rendered the
enforcement of petitioners rights moot, that is, the
expropriation proceedings (Civil Case No. 94-70560)
undertaken by the City of Manila over the disputed
premises for the benefit of herein private
respondents. For its part, the City of Manila is merely
exercising its power of eminent domain within its
jurisdiction by expropriating petitioners properties for
public use.
There is no dispute as to the existence of a final and
executory judgment in favor of petitioner Filstream
ordering the ejectment of private respondents from the
properties subject of this dispute. The judgment in the
ejectment suit became final and executory after private
respondents failed to interpose any appeal from the
adverse decision of the Court of Appeals dated August
25, 1994 in CA-G.R. SP No. 33714. Thus, petitioner has
every right to assert the execution of this decision as it
had already became final and executory.
However, it must also be conceded that the City of Manila
has an undeniable right to exercise its power of eminent
domain within its jurisdiction. The right to expropriate
private property for public use is expressly granted to it
under Section 19 of the 1991 Local Government Code, to
wit:
SECTION 19. Eminent Domain A local government unit
may, through its chief executive and acting pursuant to an
ordinance, exercise the power of eminent domain for
public use, or purpose, or welfare for the benefit of the
poor and the landless, upon payment of just
compensation, pursuant to the provisions of the
Constitution and pertinent laws: Provided, however, that
the power of eminent domain may not be exercised
unless a valid and definite offer has been previously
made to the owner, and such offer was not accepted;
Provided, further, That the local government unit may
immediately take possession of the property upon the
filing of the expropriation proceedings and upon making a
deposit with the proper court of at least fifteen (15%) of
the fair market value of the property based on the current
tax declaration of the property to be
expropriated: Provided, finally, That the amount to be
paid for the expropriated property shall be determined by
the proper court, based on the fair market value at the
time of the taking of the property. (Italics supplied)
More specifically, the City of Manila has the power to
expropriate private property in the pursuit of its urban land
reform and housing program as explicitly laid out in the
Revised Charter of the City of Manila (R.A. No. 409) as
follows:
General powers The city may have a common seal and
alter the same at pleasure, and may take, purchase,
receive, hold, lease, convey, and dispose of real and
personal property for the general interest of the city,
condemn private property for public use, contract and be
contracted with, sue and be sued, and prosecute and
defend to final judgment and execution, and exercise all
the powers hereinafter conferred. (R.A. 409, Sec. 3;
Italics supplied).
xxxxxxxxx
Sec. 100. The City of Manila is authorized to acquire
private lands in the city and to subdivide the same into
home lots for sale on easy terms to city residents, giving
first priority to the bona fide tenants or occupants of said
lands, and second priority to laborers and low-salaried
employees. For the purpose of this section, the city may
raise necessary funds by appropriations of general funds,
by securing loans or by issuing bonds, and, if necessary,
may acquire the lands through expropriation proceedings
in accordance with law, with the approval of the
Presidentx x x. (Italics supplied).
In fact, the City of Manilas right to exercise these
prerogatives notwithstanding the existence of a final and
executory judgment over the property to be expropriated
has been upheld by this Court in the case of Philippine
Columbian Association vs. Panis, G.R. No. 106528,
December 21, 1993. Relying on the aforementioned
provisions of the Revised Charter of the City of Manila,
the Court declared that:
The City of Manila, acting through its legislative branch,
has the express power to acquire private lands in the city
and subdivide these lands into home lots for sale to bona-
fide tenants or occupants thereof, and to laborers and
low-salaried employees of the city.
That only a few could actually benefit from the
expropriation of the property does not diminish its public
use character. It is simply not possible to provide all at
once land and shelter for all who need them (Sumulong v.
Guerrero, 154 SCRA 461 [1987]).
Corollary to the expanded notion of public use,
expropriation is not anymore confined to vast tracts of
land and landed estates (Province of Camarines Sur v.
Court of Appeals, G.R. Nol 103125, May 17, 1993; J. M.
Tuason and Co., Inc. v. Land Tenure Administration, 31
SCRA 413 [1970]). It is therefore of no moment that the
land sought to be expropriated in this case is less than
the half a hectare only (Pulido v. Court of Appeals, 122
SCRA 63 [1983]).
Through the years, the public use requirement in eminent
domain has evolved into a flexible concept, influenced by
changing conditions (Sumulong v. Guerrero, supra;
Manotok v. National Housing Authority, 150 SCRA 89
[1987]; Heirs of Juancho Ardona v. Reyes, 125 SCRA
220 [1983]). Public use now includes the broader notion
of indirect public benefit or advantage, including a
particular, urban land reform and housing.
We take judicial notice of the fact that urban land reform
has become a paramount task in view of the acute
shortage of decent housing in urban areas particularly in
Metro Manila.Nevertheless, despite the existence of a
serious dilemma, local government units are not given an
unbridled authority when exercising their power of
eminent domain in pursuit of solutions to these
problems. The basic rules still have to be followed, which
are as follows: no person shall be deprived of life, liberty,
or property without due process of law, nor shall any
person be denied the equal protection of the laws (Art. 3,
Sec. 1, 1987 Constitution); private property shall not be
taken for public use without just compensation (Art. 3,
Section 9, 1987 Constitution).Thus the exercise by local
government units of the power of eminent domain is not
without limitations. Even Section 19 of the 1991 Local
Government Code is very explicit that it must comply with
the provisions of the Constitution and pertinent laws, to
wit:
SECTION 19. Eminent Domain. A local government unit
may, through its chief executive and acting pursuant to an
ordinance, exercise the power of eminent domain for
public use, or purpose, or welfare for the benefit of the
poor and the landless, upon payment of just
compensation, pursuant to the provisions of the
Constitution and pertinent laws: x x x. (Italics supplied).
The governing law that deals with the subject of
expropriation for purposed of urban land reform and
housing in Republic Act No. 7279 (Urban Development
and Housing Act of 1992) and Sections 9 and 10 of which
specifically provide as follows:
Sec. 9. Priorities in the acquisition of Land Lands for
socialized housing shall be acquired in the following
order:
(a) Those owned by the Government or any of its sub-
divisions, instrumentalities, or agencies, including
government-owned or controlled corporations and their
subsidiaries;
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas of Priority
Development, Zonal Improvement sites, and Slum
Improvement and Resettlement Program sites which
have not yet been acquired;
(e) Bagong Lipunan Improvement sites and Services or
BLISS sites which have not yet been acquired; and
(f) Privately-owned lands.
Where on-site development is found more practicable and
advantageous to the beneficiaries, the priorities
mentioned in this section shall not apply. The local
government units shall give budgetary priority to on-site
development of government lands.
Sec. 10. Modes of Land Acquisition. The modes of
acquiring lands for purposes of this Act shall include,
among others, community mortgage, land swapping, land
assembly or consolidation, land banking, donation to the
Government, joint venture agreement, negotiated
purchase, and expropriation: Provided, however, That
expropriation shall be resorted to only when other modes
of acquisition have been exhausted: Provided further,
That where expropriation is resorted to, parcels of land
owned by small property owners shall be exempted for
purposes of this Act: Provided, finally, That abandoned
property, as herein defined, shall be reverted and
escheated to the State in a proceeding analogous to the
procedure laid down in Rule 91 of the Rules of Court.
For the purpose of socialized housing, government-
owned and foreclosed properties shall be acquired by the
local government units, or by the National Housing
Authority primarily through negotiated
purchase: Provided, That qualified beneficiaries who are
actual occupants of the land shall be given the right of
first refusal. (Italics supplied).
Very clear from the abovequoted provisions are the
limitations with respect to the order of priority in acquiring
private lands and in resorting to expropriation
proceedings as means to acquire the same. Private lands
rank last in the order of priority for purposes of socialized
housing. In the same vein, expropriation proceedings are
to be resorted to only when the other modes of
acquisition have been exhausted. Compliance with these
conditions must be deemed mandatory because these
are the only safeguards in securing the right of owners of
private property to due process when their property is
expropriated for public use.
Proceeding from the parameters laid out in the above
disquisitions, we now pose the crucial question: Did the
city of Manila comply with the abovementioned conditions
when it expropriated petitioner Filstreams properties? We
have carefully scrutinized the records of this case and
found nothing that would indicate the respondent City of
Manila complied with Sec. 9 and Sec. 10 of R.A.
7279. Petitioners Filstreams properties were expropriated
and ordered condemned in favor of the City of Manila
sans any showing that resort to the acquisition of other
lands listed under Sec. 9 of RA 7279 have proved
futile. Evidently, there was a violation of petitioner
Filstreams right to due process which must accordingly
be rectified.
Indeed, it must be emphasized that the State has a
paramount interest in exercising its power of eminent
domain for the general good considering that the right of
the State to expropriate private property as long as it is
for public use always takes precedence over the interest
of private property owners. However we must not lose
sight of the fact that the individual rights affected by the
exercise of such right are also entitled to protection,
bearing in mind that the exercise of this superior right
cannot override the guarantee of due process extended
by the law to owners of the property to be expropriated. In
this regard, vigilance over compliance with the due
process requirements is in order.
WHEREFORE, the petitions are hereby GRANTED. In
G.R. 125218, the resolutions of the Court of Appeals in
CA-G.R. SP No. 36904 dated March 18, 1996 and May
20, 1996 are hereby REVERSED and SET ASIDE. In
G.R. No. 128077, the resolution of the Court of Appeals in
CA-G.R. SP No. 43101 dated January 28, 1997 and
February 18, 1997 are REVERSED and SET ASIDE.
SO ORDERED.
===========================================
G.R. No. 155746 October 13, 2004
LAGCAO v. JUDGE LABRA
CORONA, J.:
Before us is a petition for review of the decision dated
July 1, 2002 of the Regional Trial Court, Branch 23, Cebu
City upholding the validity of the City of Cebus Ordinance
No. 1843, as well as the lower courts order dated August
26, 2002 denying petitioners motion for reconsideration.
In 1964, the Province of Cebu donated 210 lots to the
City of Cebu. One of these lots was Lot 1029, situated in
Capitol Hills, Cebu City, with an area of 4,048 square
meters. In 1965, petitioners purchased Lot 1029 on
installment basis. But then, in late 1965, the 210 lots,
including Lot 1029, reverted to the Province of
Cebu. Consequently, the province tried to annul the sale
of Lot 1029 by the City of Cebu to the petitioners. This
prompted the latter to sue the province for specific
performance and damages in the then Court of First
Instance.
On July 9, 1986, the court a quo ruled in favor of
petitioners and ordered the Province of Cebu to execute
the final deed of sale in favor of petitioners. On June 11,
1992, the Court of Appeals affirmed the decision of the
trial court. Pursuant to the ruling of the appellate court,
the Province of Cebu executed on June 17, 1994 a deed
of absolute sale over Lot 1029 in favor of petitioners.
Thereafter, Transfer Certificate of Title (TCT) No. 129306
was issued in the name of petitioners and Crispina
Lagcao.
After acquiring title, petitioners tried to take possession of
the lot only to discover that it was already occupied by
squatters. Thus, on June 15, 1997, petitioners instituted
ejectment proceedings against the squatters. The
Municipal Trial Court in Cities (MTCC), Branch 1, Cebu
City, rendered a decision on April 1, 1998, ordering the
squatters to vacate the lot. On appeal, the RTC affirmed
the MTCCs decision and issued a writ of execution and
order of demolition.
However, when the demolition order was about to be
implemented, Cebu City Mayor Alvin Garcia wrote two
letters to the MTCC, requesting the deferment of the
demolition on the ground that the City was still looking for
a relocation site for the squatters. Acting on the mayors
request, the MTCC issued two orders suspending the
demolition for a period of 120 days from February 22,
1999. Unfortunately for petitioners, during the suspension
period, the Sangguniang Panlungsod (SP) of Cebu City
passed a resolution which identified Lot 1029 as a
socialized housing site pursuant to RA 7279. Then, on
June 30, 1999, the SP of Cebu City passed Ordinance
No. 1772 which included Lot 1029 among the identified
sites for socialized housing. On July, 19, 2000, Ordinance
No. 1843 was enacted by the SP of Cebu City authorizing
the mayor of Cebu City to initiate expropriation
proceedings for the acquisition of Lot 1029 which was
registered in the name of petitioners. The intended
acquisition was to be used for the benefit of the homeless
after its subdivision and sale to the actual occupants
thereof. For this purpose, the ordinance appropriated the
amount of P6,881,600 for the payment of the subject lot.
This ordinance was approved by Mayor Garcia on August
2, 2000.
On August 29, 2000, petitioners filed with the RTC an
action for declaration of nullity of Ordinance No. 1843 for
being unconstitutional. The trial court rendered its
decision on July 1, 2002 dismissing the complaint filed by
petitioners whose subsequent motion for reconsideration
was likewise denied on August 26, 2002.
In this appeal, petitioners argue that Ordinance No. 1843
is unconstitutional as it sanctions the expropriation of their
property for the purpose of selling it to the squatters, an
endeavor contrary to the concept of public use
contemplated in the Constitution. They allege that it will
benefit only a handful of people. The ordinance,
according to petitioners, was obviously passed for
politicking, the squatters undeniably being a big source of
votes.
In sum, this Court is being asked to resolve whether or
not the intended expropriation by the City of Cebu of a
4,048-square-meter parcel of land owned by petitioners
contravenes the Constitution and applicable laws.
Under Section 48 of RA 7160, otherwise known as the
Local Government Code of 1991, local legislative power
shall
be exercised by the Sangguniang Panlungsod of the city.
The legislative acts of the Sangguniang Panlungsod in
the exercise of its lawmaking authority are denominated
ordinances.
Local government units have no inherent power of
eminent domain and can exercise it only when expressly
authorized by the legislature. By virtue of RA 7160,
Congress conferred upon local government units the
power to expropriate. Ordinance No. 1843 was enacted
pursuant to Section 19 of RA 7160:
SEC. 19. Eminent Domain. − A local government unit
may, through its chief executive and acting pursuant to an
ordinance, exercise the power of eminent domain for
public use, or purpose, or welfare for the benefit of the
poor and the landless, upon payment of just
compensation, pursuant to the provisions of the
Constitution and pertinent lawsxxx. (italics supplied).
Ordinance No. 1843 which authorized the expropriation of
petitioners lot was enacted by the SP of Cebu City to
provide socialized housing for the homeless and low-
income residents of the City.
However, while we recognize that housing is one of the
most serious social problems of the country, local
government units do not possess unbridled authority to
exercise their power of eminent domain in seeking
solutions to this problem.
There are two legal provisions which limit the exercise of
this power: (1) no person shall be deprived of life, liberty,
or property without due process of law, nor shall any
person be denied the equal protection of the laws; and (2)
private property shall not be taken for public use without
just compensation. Thus, the exercise by local
government units of the power of eminent domain is not
absolute. In fact, Section 19 of RA 7160 itself explicitly
states that such exercise must comply with the provisions
of the Constitution and pertinent laws.
The exercise of the power of eminent domain drastically
affects a landowners right to private property, which is as
much a constitutionally-protected right necessary for the
preservation and enhancement of personal dignity and
intimately connected with the rights to life and
liberty. Whether directly exercised by the State or by its
authorized agents, the exercise of eminent domain is
necessarily in derogation of private rights. For this
reason, the need for a painstaking scrutiny cannot be
overemphasized.
The due process clause cannot be trampled upon each
time an ordinance orders the expropriation of a private
individuals property. The courtscannot even adopt a
hands-off policy simply because public use or public
purpose is invoked by an ordinance, or just compensation
has been fixed and determined. In De Knecht vs.
Bautista, we said:
It is obvious then that a land-owner is covered by the
mantle of protection due process affords. It is a mandate
of reason. It frowns on arbitrariness, it is the antithesis of
any governmental act that smacks of whim or caprice. It
negates state power to act in an oppressive manner. It is,
as had been stressed so often, the embodiment of the
sporting idea of fair play. In that sense, it stands as a
guaranty of justice. That is the standard that must be met
by any governmental agency in the exercise of whatever
competence is entrusted to it. As was so emphatically
stressed by the present Chief Justice, Acts of Congress,
as well as those of the Executive, can deny due process
only under pain of nullity. xxx.
The foundation of the right to exercise eminent domain is
genuine necessity and that necessity must be of public
character. Government may not capriciously or arbitrarily
choose which private property should be expropriated. In
this case, there was no showing at all why petitioners
property was singled out for expropriation by the city
ordinance or what necessity impelled the particular choice
or selection. Ordinance No. 1843 stated no reason for the
choice of petitioners property as the site of a socialized
housing project.
Condemnation of private lands in an irrational or
piecemeal fashion or the random expropriation of small
lots to accommodate no more than a few tenants or
squatters is certainly not the condemnation for public use
contemplated by the Constitution. This is depriving a
citizen of his property for the convenience of a few
without perceptible benefit to the public.
RA 7279 is the law that governs the local expropriation of
property for purposes of urban land reform and housing.
Sections 9 and 10 thereof provide:
SEC 9. Priorities in the Acquisition of Land. − Lands for
socialized housing shall be acquired in the following
order:
(a) Those owned by the Government or any of its
subdivisions, instrumentalities, or agencies, including
government-owned or controlled corporations and their
subsidiaries;
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas or Priority
Development, Zonal Improvement Program sites, and
Slum Improvement and Resettlement Program sites
which have not yet been acquired;
(e) Bagong Lipunan Improvement of Sites and Services
or BLISS which have not yet been acquired; and
(f) Privately-owned lands.
Where on-site development is found more practicable and
advantageous to the beneficiaries, the priorities
mentioned in this section shall not apply. The local
government units shall give budgetary priority to on-site
development of government lands. (Emphasis supplied).
SEC. 10. Modes of Land Acquisition. − The modes of
acquiring lands for purposes of this Act shall include,
among others, community mortgage, land swapping, land
assembly or consolidation, land banking, donation to the
Government, joint venture agreement, negotiated
purchase, and expropriation: Provided, however, That
expropriation shall be resorted to only when other
modes of acquisition have been exhausted: Provided
further, That where expropriation is resorted to, parcels of
land owned by small property owners shall be exempted
for purposes of this Act: xxx. (Emphasis supplied).
In the recent case of Estate or Heirs of the Late Ex-
Justice Jose B.L. Reyes et al. vs. City of Manila, we ruled
that the above-quoted provisions are strict limitations on
the exercise of the power of eminent domain by local
government units, especially with respect to (1) the order
of priority in acquiring land for socialized housing and (2)
the resort to expropriation proceedings as a means to
acquiring it. Private lands rank last in the order of priority
for purposes of socialized housing. In the same vein,
expropriation proceedings may be resorted to only after
the other modes of acquisition are exhausted.
Compliance with these conditions is mandatory because
these are the only safeguards of oftentimes helpless
owners of private property against what may be a
tyrannical violation of due process when their property is
forcibly taken from them allegedly for public use.
We have found nothing in the records indicating that the
City of Cebu complied strictly with Sections 9 and 10 of
RA 7279. Ordinance No. 1843 sought to expropriate
petitioners property without any attempt to first acquire
the lands listed in (a) to (e) of Section 9 of RA 7279.
Likewise, Cebu City failed to establish that the other
modes of acquisition in Section 10 of RA 7279 were first
exhausted. Moreover, prior to the passage of Ordinance
No. 1843, there was no evidence of a valid and definite
offer to buy petitioners property as required by Section 19
of RA 7160. We therefore find Ordinance No. 1843 to be
constitutionally infirm for being violative of the petitioners
right to due process.
It should also be noted that, as early as 1998, petitioners
had already obtained a favorable judgment of eviction
against the illegal occupants of their property. The
judgment in this ejectment case had, in fact, already
attained finality, with a writ of execution and an order of
demolition. But Mayor Garcia requested the trial court to
suspend the demolition on the pretext that the City was
still searching for a relocation site for the
squatters. However, instead of looking for a relocation
site during the suspension period, the city council
suddenly enacted Ordinance No. 1843 for the
expropriation of petitioners lot. It was trickery and bad
faith, pure and simple. The unconscionable manner in
which the questioned ordinance was passed clearly
indicated that respondent City transgressed the
Constitution, RA 7160 and RA 7279.
For an ordinance to be valid, it must not only be within the
corporate powers of the city or municipality to enact but
must also be passed according to the procedure
prescribed by law. It must be in accordance with certain
well-established basic principles of a substantive nature.
These principles require that an ordinance (1) must not
contravene the Constitution or any statute (2) must not be
unfair or oppressive (3) must not be partial or
discriminatory (4) must not prohibit but may regulate trade
(5) must be general and consistent with public policy, and
(6) must not be unreasonable.
Ordinance No. 1843 failed to comply with the foregoing
substantive requirements. A clear case of constitutional
infirmity having been thus established, this Court is
constrained to nullify the subject ordinance. We
recapitulate:
first, as earlier discussed, the questioned ordinance is
repugnant to the pertinent provisions of the Constitution,
RA 7279 and RA 7160;
second, the precipitate manner in which it was enacted
was plain oppression masquerading as a pro-poor
ordinance;
third, the fact that petitioners small property was singled
out for expropriation for the purpose of awarding it to no
more than a few squatters indicated manifest partiality
against petitioners, and
fourth, the ordinance failed to show that there was a
reasonable relation between the end sought and the
means adopted. While the objective of the City of Cebu
was to provide adequate housing to slum dwellers, the
means it employed in pursuit of such objective fell short of
what was legal, sensible and called for by the
circumstances.
Indeed, experience has shown that the disregard of basic
liberties and the use of short-sighted methods in
expropriation proceedings have not achieved the desired
results. Over the years, the government has tried to
remedy the worsening squatter problem. Far from solving
it, however, governments kid-glove approach has only
resulted in the multiplication and proliferation of squatter
colonies and blighted areas. A pro-poor program that is
well-studied, adequately funded, genuinely sincere and
truly respectful of everyones basic rights is what this
problem calls for, not the improvident enactment of
politics-based ordinances targeting small private lots in no
rational fashion.
WHEREFORE, the petition is hereby GRANTED. The
July 1, 2002 decision of Branch 23 of the Regional Trial
Court of Cebu City is REVERSED and SET ASIDE.
SO ORDERED.
===========================================
G.R. No. 146062. June 28, 2001
ESLABAN v. DE ONORIO
MENDOZA, J.:
This is a petition for review of the decision of the Court of
Appeals which affirmed the decision of the Regional Trial
Court, Branch 26, Surallah, South Cotabato, ordering the
National Irrigation Administration (NIA for brevity) to pay
respondent the amount of P107,517.60 as just
compensation for the taking of the latters property.
The facts are as follows:
Respondent Clarita Vda. de Enorio is the owner of a lot in
Barangay M. Roxas, Sto. Nio, South Cotabato with an
area of 39,512 square meters. The lot, known as Lot
1210-A-Pad-11-000586, is covered by TCT No. T-22121
of the Registry of Deeds, South Cotabato. On October 6,
1981, Santiago Eslaban, Jr., Project Manager of the NIA,
approved the construction of the main irrigation canal of
the NIA on the said lot, affecting a 24,660 square meter
portion thereof. Respondents husband agreed to the
construction of the NIA canal provided that they be paid
by the government for the area taken after the processing
of documents by the Commission on Audit.
Sometime in 1983, a Right-of-Way agreement was
executed between respondent and the NIA (Exh. 1). The
NIA then paid respondent the amount of P4,180.00 as
Right-of-Way damages. Respondent subsequently
executed an Affidavit of Waiver of Rights and Fees
whereby she waived any compensation for damages to
crops and improvements which she suffered as a result of
the construction of a right-of-way on her property (Exh.
2). The same year, petitioner offered respondent the sum
of P35,000.00 by way of amicable settlement pursuant to
Executive Order No. 1035, 18, which provides in part that
Financial assistance may also be given to owners of
lands acquired under C.A. 141, as amended, for the area
or portion subject to the reservation under Section 12
thereof in such amounts as may be determined by the
implementing agency/instrumentality concerned in
consultation with the Commission on Audit and the
assessors office concerned.
Respondent demanded payment for the taking of her
property, but petitioner refused to pay. Accordingly,
respondent filed on December 10, 1990 a complaint
against petitioner before the Regional Trial Court, praying
that petitioner be ordered to pay the sum of P111,299.55
as compensation for the portion of her property used in
the construction of the canal constructed by the NIA,
litigation expenses, and the costs.
Petitioner, through the Office of the Solicitor-General, filed
an Answer, in which he admitted that NIA constructed an
irrigation canal over the property of the plaintiff and that
NIA paid a certain landowner whose property had been
taken for irrigation purposes, but petitioner interposed the
defense that: (1) the government had not consented to be
sued; (2) the total area used by the NIA for its irrigation
canal was only 2.27 hectares, not 24,600 square meters;
and (3) respondent was not entitled to compensation for
the taking of her property considering that she secured
title over the property by virtue of a homestead patent
under C.A. No. 141.
At the pre-trial conference, the following facts were
stipulated upon: (1) that the area taken was 24,660
square meters; (2) that it was a portion of the land
covered by TCT No. T-22121 in the name of respondent
and her late husband (Exh. A); and (3) that this area had
been taken by the NIA for the construction of an irrigation
canal.
On October 18, 1993, the trial court rendered a decision,
the dispositive portion of which reads:
In view of the foregoing, decision is hereby rendered in
favor of plaintiff and against the defendant ordering the
defendant, National Irrigation Administration, to pay to
plaintiff the sum of One Hundred Seven Thousand Five
Hundred Seventeen Pesos and Sixty Centavos
(P107,517.60) as just compensation for the questioned
area of 24,660 square meters of land owned by plaintiff
and taken by said defendant NIA which used it for its
main canal plus costs.
On November 15, 1993, petitioner appealed to the Court
of Appeals which, on October 31, 2000, affirmed the
decision of the Regional Trial Court. Hence this petition.
The issues in this case are:
1. WHETHER OR NOT THE PETITION IS DISMISSIBLE
FOR FAILURE TO COMPLY WITH THE PROVISIONS
OF SECTION 5, RULE 7 OF THE REVISED RULES OF
CIVIL PROCEDURE.
2. WHETHER OR NOT LAND GRANTED BY VIRTUE
OF A HOMESTEAD PATENT AND SUBSEQUENTLY
REGISTERED UNDER PRESIDENTIAL DECREE 1529
CEASES TO BE PART OF THE PUBLIC DOMAIN.
3. WHETHER OR NOT THE VALUE OF JUST
COMPENSATION SHALL BE DETERMINED FROM THE
TIME OF THE TAKING OR FROM THE TIME OF THE
FINALITY OF THE DECISION.
4. WHETHER THE AFFIDAVIT OF WAIVER OF RIGHTS
AND FEES EXECUTED BY RESPONDENT EXEMPTS
PETITIONER FROM MAKING PAYMENT TO THE
FORMER.
We shall deal with these issues in the order they are
stated.
First. Rule 7, 5 of the 1997 Revised Rules on Civil
Procedure provides
Certification against forum shopping. The plaintiff or
principal party shall certify under oath in the complaint or
other initiatory pleading asserting a claim for relief, or in a
sworn certification annexed thereto and simultaneously
filed therewith: (a) that he has not theretofore
commenced any action or filed any claim involving the
same issues in any court, tribunal or quasi-judicial agency
and, to the best of his knowledge, no such other action or
claim is pending therein; (b) if there is such other pending
action or claim, a complete statement of the present
status thereof; and (c) if he should thereafter learn that
the same or similar action or claim has been filed or is
pending, he shall report the fact within five (5) days
therefrom to the court wherein his aforesaid complaint or
initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall
not be curable by mere amendment of the complaint or
other initiatory pleading but shall be cause for the
dismissal of the case without prejudice, unless otherwise
provided, upon motion and after hearing . . . .
By reason of Rule 45, 4 of the 1997 Revised Rules on
Civil Procedure, in relation to Rule 42, 2 thereof, the
requirement of a certificate of non-forum shopping applies
to the filing of petitions for review on certiorari of the
decisions of the Court of Appeals, such as the one filed
by petitioner.
As provided in Rule 45, 5, The failure of the petitioner to
comply with any of the foregoing requirements regarding .
. . the contents of the document which should accompany
the petition shall be sufficient ground for the dismissal
thereof.
The requirement in Rule 7, 5 that the certification should
be executed by the plaintiff or the principal means that
counsel cannot sign the certificate against forum-
shopping. The reason for this is that the plaintiff or
principal knows better than anyone else whether a
petition has previously been filed involving the same case
or substantially the same issues. Hence, a certification
signed by counsel alone is defective and constitutes a
valid cause for dismissal of the petition.
In this case, the petition for review was filed by Santiago
Eslaban, Jr., in his capacity as Project Manager of the
NIA. However, the verification and certification against
forum-shopping were signed by Cesar E. Gonzales, the
administrator of the agency. The real party-in-interest is
the NIA, which is a body corporate. Without being duly
authorized by resolution of the board of the corporation,
neither Santiago Eslaban, Jr. nor Cesar E. Gonzales
could sign the certificate against forum-shopping
accompanying the petition for review. Hence, on this
ground alone, the petition should be dismissed.
Second. Coming to the merits of the case, the land under
litigation, as already stated, is covered by a transfer
certificate of title registered in the Registry Office of
Koronadal, South Cotabato on May 13, 1976. This land
was originally covered by Original Certificate of Title No.
(P-25592) P-9800 which was issued pursuant to a
homestead patent granted on February 18, 1960. We
have held:
Whenever public lands are alienated, granted or
conveyed to applicants thereof, and the deed grant or
instrument of conveyance [sales patent] registered with
the Register of Deeds and the corresponding certificate
and owners duplicate of title issued, such lands are
deemed registered lands under the Torrens System and
the certificate of title thus issued is as conclusive and
indefeasible as any other certificate of title issued to
private lands in ordinary or cadastral registration
proceedings.
The Solicitor-General contends, however, that an
encumbrance is imposed on the land in question in view
of 39 of the Land Registration Act (now P.D. No. 1529,
44) which provides:
Every person receiving a certificate of title in pursuance of
a decree of registration, and every subsequent purchaser
of registered land who takes a certificate of title for value
in good faith shall hold the same free from all
encumbrances except those noted on said certificate, and
any of the following encumbrances which may be
subsisting, namely:
....
Third. Any public highway, way, private way established
by law, or any government irrigation canal or lateral
thereof, where the certificate of title does not state that
the boundaries of such highway, way, irrigation canal or
lateral thereof, have been determined.
As this provision says, however, the only servitude which
a private property owner is required to recognize in favor
of the government is the easement of a public highway,
way, private way established by law, or any government
canal or lateral thereof where the certificate of title does
not state that the boundaries thereof have been pre-
determined. This implies that the same should have
been pre-existing at the time of the registration of the land
in order that the registered owner may be compelled to
respect it. Conversely, where the easement is not pre-
existing and is sought to be imposed only after the land
has been registered under the Land Registration Act,
proper expropriation proceedings should be had, and just
compensation paid to the registered owner thereof.
In this case, the irrigation canal constructed by the NIA on
the contested property was built only on October 6, 1981,
several years after the property had been registered on
May 13, 1976. Accordingly, prior expropriation
proceedings should have been filed and just
compensation paid to the owner thereof before it could be
taken for public use.
Indeed, the rule is that where private property is needed
for conversion to some public use, the first thing obviously
that the government should do is to offer to buy it. If the
owner is willing to sell and the parties can agree on the
price and the other conditions of the sale, a voluntary
transaction can then be concluded and the transfer
effected without the necessity of a judicial
action. Otherwise, the government will use its power of
eminent domain, subject to the payment of just
compensation, to acquire private property in order to
devote it to public use.
Third. With respect to the compensation which the owner
of the condemned property is entitled to receive, it is
likewise settled that it is the market value which should be
paid or that sum of money which a person, desirous but
not compelled to buy, and an owner, willing but not
compelled to sell, would agree on as a price to be given
and received therefor. Further, just compensation means
not only the correct amount to be paid to the owner of the
land but also the payment of the land within a reasonable
time from its taking. Without prompt payment,
compensation cannot be considered just for then the
property owner is made to suffer the consequence of
being immediately deprived of his land while being made
to wait for a decade or more before actually receiving the
amount necessary to cope with his loss. Nevertheless, as
noted in Ansaldo v. Tantuico, Jr., there are instances
where the expropriating agency takes over the property
prior to the expropriation suit, in which case just
compensation shall be determined as of the time of
taking, not as of the time of filing of the action of eminent
domain.
Before its amendment in 1997, Rule 67, 4 provided:
Order of condemnation. When such a motion is overruled
or when any party fails to defend as required by this rule,
the court may enter an order of condemnation declaring
that the plaintiff has a lawful right to take the property
sought to be condemned, for the public use or purpose
described in the complaint upon the payment of just
compensation to be determined as of the date of the filing
of the complaint. . . .
It is now provided that-
SEC. 4. Order of expropriation. If the objections to and
the defense against the right of the plaintiff to expropriate
the property are overruled, or when no party appears to
defend as required by this Rule, the court may issue an
order of expropriation declaring that the plaintiff has a
lawful right to take the property sought to be expropriated,
for the public use or purpose described in the complaint,
upon the payment of just compensation to be determined
as of the date of the taking of the property or the filing of
the complaint, whichever came first.
A final order sustaining the right to expropriate the
property may be appealed by any party aggrieved
thereby. Such appeal, however, shall not prevent the
court from determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not
be permitted to dismiss or discontinue the proceeding
except on such terms as the court deems just and
equitable. (Emphasis added)
Thus, the value of the property must be determined either
as of the date of the taking of the property or the filing of
the complaint, whichever came first. Even before the new
rule, however, it was already held in Commissioner of
Public Highways v. Burgos that the price of the land at the
time of taking, not its value after the passage of time,
represents the true value to be paid as just
compensation. It was, therefore, error for the Court of
Appeals to rule that the just compensation to be paid to
respondent should be determined as of the filing of the
complaint in 1990, and not the time of its taking by the
NIA in 1981, because petitioner was allegedly remiss in
its obligation to pay respondent, and it was respondent
who filed the complaint. In the case of Burgos, it was also
the property owner who brought the action for
compensation against the government after 25 years
since the taking of his property for the construction of a
road.
Indeed, the value of the land may be affected by many
factors. It may be enhanced on account of its taking for
public use, just as it may depreciate. As observed
in Republic v. Lara:
[W]here property is taken ahead of the filing of the
condemnation proceedings, the value thereof may be
enhanced by the public purpose for which it is taken; the
entry by the plaintiff upon the property may have
depreciated its value thereby; or there may have been a
natural increase in the value of the property from the time
it is taken to the time the complaint is filed, due to general
economic conditions. The owner of private property
should be compensated only for what he actually loses; it
is not intended that his compensation shall extend
beyond his loss or injury. And what he loses is only the
actual value of his property at the time it is taken. This is
the only way that compensation to be paid can be truly
just, i.e., just not only to the individual whose property is
taken, but to the public, which is to pay for it . . . .
In this case, the proper valuation for the property in
question is P16,047.61 per hectare, the price level for
1982, based on the appraisal report submitted by the
commission (composed of the provincial treasurer,
assessor, and auditor of South Cotabato) constituted by
the trial court to make an assessment of the expropriated
land and fix the price thereof on a per hectare basis.
Fourth. Petitioner finally contends that it is exempt from
paying any amount to respondent because the latter
executed an Affidavit of Waiver of Rights and Fees of any
compensation due in favor of the Municipal Treasurer of
Barangay Sto. Nio, South Cotabato. However, as the
Court of Appeals correctly held:
[I]f NIA intended to bind the appellee to said affidavit, it
would not even have bothered to give her any amount for
damages caused on the improvements/crops within the
appellees property. This, apparently was not the case, as
can be gleaned from the disbursement voucher in the
amount of P4,180.00 (page 10 of the Folder of Exhibits in
Civil Case 396) issued on September 17, 1983 in favor of
the appellee, and the letter from the Office of the Solicitor
General recommending the giving of financial assistance
in the amount of P35,000.00 to the appellee.
Thus, We are inclined to give more credence to the
appellees explanation that the waiver of rights and fees
pertains only to improvements and crops and not to the
value of the land utilized by NIA for its main canal.
WHEREFORE, premises considered, the assailed
decision of the Court of Appeals is hereby AFFIRMED
with MODIFICATION to the extent that the just
compensation for the contested property be paid to
respondent in the amount of P16,047.61 per hectare, with
interest at the legal rate of six percent (6%) per annum
from the time of taking until full payment is made. Costs
against petitioner.
SO ORDERED.
===========================================
G.R. No. 122256. October 30, 1996
REPUBLIC (DAR) v. COURT OF APPEALS, 263 SCRA
758
MENDOZA, J.:
Private respondent Acil Corporation owned several
hectares of Land Linoan, Montevista, Davao del Norte,
which the government took pursuant to the
Comprehensive Agrarian Reform Law (R.A. No.
6657). Private respondents certificates of title were
cancelled and new ones were issued and distributed to
farmer-beneficiaries.
The lands were valued by the Land Bank of
the Philippines at P19,312.24 per hectare for the riceland
and P4,267.68 per hectare for brushland, or for a total
of P439,105.39. It appears, however, that in the
Statement of Agricultural Landholdings (LISTASAKA)
which private respondent had earlier filed with the
Department of Agrarian Reform (DAR), a lower Fair Value
Acceptable to Landowner was stated and that based on
this statement, the Land Bank of the Philippines valued
private respondents lands uniformly at P15,311.79 per
hectare and fixed the amount of P390,557.84 as the total
compensation to be paid for the lands.
Private respondent rejected the governments offer,
pointing out that nearby lands planted to the same crops
were valued at the higher price of P24,717.40 per
hectare. The matter was brought before the Provincial
Agrarian Reform Adjudicator (PARAD) who, on October
8, 1992, sustained the initial valuation made by the LBP.
On December 12, 1992, private respondent filed a
Petition for Just Compensation in the Regional Trial Court
of Tagum, Davao del Norte, sitting as a Special Agrarian
Court. Private respondent prayed that DAR be ordered to
pay P24,717.40 per hectare. However, the RTC
dismissed its petition on the ground that private
respondent should have appealed to the Department of
Agrarian Reform Adjudication Board (DARAB), pursuant
to the latters Revised Rules of Procedure, before
recourse to it (the RTC) could be had. In addition the RTC
found that, in violation of the DARABs rules of procedure
the petition had been filed more than fifteen (15) days
after notice of the decision of the PARAD.
Private respondent moved for reconsideration but its
motion was denied on October 13, 1994. Private
respondent therefore filed a petition for certiorari with the
Court of Appeals, contending that a petition for just
compensation under R.A. No. 6657 56-57 falls under the
exclusive and original jurisdiction of the RTC. His
contention was sustained by the Court of Appeals which,
in its decision of October 4, 1995, set aside the order of
dismissal of the RTC. Accordingly, the case was
remanded to the RTC for further proceedings.
In turn the government, represented by the Department of
Agrarian Reform, filed this petition for review on certiorari,
raising as the issue whether in cases involving claims for
just compensation under R.A. No. 6657 an appeal from
the decision of the provincial adjudicator to the DARAB
must first be made before a landowner can resort to the
RTC under 57.Petitioners sustain the affirmative
proposition. They cite 50 of R.A. No. 6657 which in
pertinent part provides:
50. Quasi-judicial Powers of the Dar. The DAR is hereby
vested with primary jurisdiction to determine and
adjudicate agrarian reform matters and shall have
exclusive original jurisdiction over all matters involving the
implementation of agrarian reform, except those falling
under the exclusive jurisdiction of the Department of
Agriculture (DA) and the Department of Environment and
Natural Resources (DENR).
and argue that the fixing of just compensation for the
taking of lands under R.A. No. 6657 is a [matter] involving
the implementation of agrarian reform within the
contemplation of this provision. They invoke 16(f) of R.A.
No. 6657, which provides that any party who disagrees to
the decision [of the DAR] may bring the matter to the
court of proper jurisdiction for final determination of just
compensation, as confirming their construction of 50.
The contention has no merit.
It is true that 50 grants the DAR primary jurisdiction to
determine and adjudicate agrarian reform matters and
exclusive original jurisdiction over all matters involving the
implementation of agrarian reform, except those falling
under the exclusive jurisdiction of the Department of
Agriculture and the Department of Environment and
Natural Resources. It is also true, however, that 57
provides:
57. Special jurisdiction. The Special Agrarian Court shall
have original and exclusive jurisdiction over all petitions
for the determination of just compensation to landowners,
and the prosecution of all criminal offenses under this
Act. the Rules of Court shall apply to all proceedings
before the Special Agrarian Courts, unless modified by
this Act.
The Special Agrarian Courts shall decide all appropriate
cases under their special jurisdiction within thirty (30)
days from submission of the case for decision.
Thus Special Agrarian Courts, which are Regional Trial
Courts, are given original and exclusive jurisdiction over
two categories of cases, to wit: (1) all petitions for the
determination of just compensation to landowners and (2)
the prosecution of all criminal offenses under [R.A. No.
6657]. The provisions of 50 must be construed in
harmony with this provision by considering cases
involving the determination of just compensation and
criminal cases for violations of R.A. No. 6657 as excepted
from the plenitude of power conferred on the
DAR. Indeed, there is a reason for this distinction. The
DAR is an administrative agency which cannot be granted
jurisdiction over cases of eminent domain (for such are
takings under R.A. No. 6657) and over criminal
cases. Thus, in EPZA v. Dulay and Sumulong v.
Guerrero we held that the valuation of property in eminent
domain is essentially a judicial function which cannot be
vested in administrative agencies, while in Scotys
Department Store v. Micaller we struck down a law
granting the then Court of Industrial Relations jurisdiction
to try criminal cases for violations of the Industrial Peace
Act.
Petitioners also cite Rule II, 5 and Rule XIII, 1 of the
DARAB Rules of Procedure in support of their contention
that decisions of agrarian reform adjudicators may only
be appealed to the DARAB. These rules provide:
Rule II 5. Appellate Jurisdiction. The Board shall have
exclusive appellate jurisdiction to review, reverse, modify,
alter or affirm resolutions, orders, decisions, and other
dispositions of its [regional and provincial agrarian reform
adjudicators].
Rule XIII, 1. Appeal to the Board. a) An appeal may be
taken from an order or decision of the Regional or
Provincial Adjudicator to the Board by either of the parties
or both, by giving or stating a written or oral appeal within
a period of fifteen (15) days from the receipt of the
resolution, order or decision appealed from, and serving a
copy thereof on the opposite or adverse party, if the
appeal is in writing.
b) An oral appeal shall be reduced into writing by the
Adjudicator to be signed by the appellant, and a copy
thereof shall be served upon the opposite or adverse
party within ten (10) days from the taking of oral appeal.
Apart from the fact that only a statute can confer
jurisdiction on courts and administrative agencies rules of
procedure cannot it is noteworthy that the New Rules of
Procedure of the DARAB, which was adopted on May 30,
1994, now provide that in the event a landowner is not
satisfied with a decision of an agrarian adjudicator, the
landowner can bring the matter directly to the Regional
Trial Court sitting as Special Agrarian Court. Thus Rule
XIII, 11 of the new rules provides:
11. Land Valuation and Preliminary Determination and
Payment of Just Compensation. The decision of the
Adjudicator on land valuation and preliminary
determination and payment of just compensation shall not
be appealable to the Board but shall be brought directly to
the Regional Trial Courts designated as Special Agrarian
Courts within fifteen (15) days from receipt of the notice
thereof. Any party shall be entitled to only one motion for
reconsideration. (Emphasis supplied)
This is an acknowledgment by the DARAB that the
decision of just compensation cases for the taking of
lands under R.A. No. 6657 is a power vested in the
courts.
Thus, under the law, the Land Bank of the Philippines is
charged with the initial responsibility of determining the
value of lands placed under land reform and the
compensation to be paid for their taking. Through notice
sent to the landowner pursuant to 16(a) of R.A. No. 6657,
the DAR makes an offer. In case the landowner rejects
the offer, a summary administrative proceeding is
heldand afterward the provincial (PARAD), the regional
(RARAD) or the central (DARAB) adjudicator as the case
may be, depending on the value of the land, fixes the
price to be paid for the land. If the landowner does not
agree to the price fixed, he may bring the matter to the
RTC acting as Special Agrarian Court. This in essence is
the procedure for the determination of compensation
cases under R.A. No. 6657. In accordance with it, the
private respondents case was properly brought by it in the
RTC, and it was error for the latter court to have
dismissed the case. In the terminology of 57, the RTC,
sitting as a Special Agrarian Court, has original and
exclusive jurisdiction over all petitions for the
determination of just compensation to landowners. It
would subvert this original and exclusive jurisdiction of the
RTC for the DAR to vest original jurisdiction in
compensation cases in administrative officials and make
the RTC an appellate court for the review of
administrative decisions.
Consequently, although the new rules speak of directly
appealing the decision of adjudicators to the RTCs sitting
as Special Agrarian Courts, it is clear from 57 that
the original and exclusive jurisdiction to determine such
cases is in the RTCs. Any effort to transfer such
jurisdiction to the adjudicators and to convert the original
jurisdiction of the RTCs into appellate jurisdiction would
be contrary to 57 and therefore would be void. What
adjudicators are empowered to do is only to determine in
a preliminary manner the reasonable compensation to be
paid to landowners, leaving to the courts the ultimate
power to decide this question.
WHEREFORE the petition for review on certiorari is
DENIED and the decision of the Court of Appeals is
AFFIRMED.
SO ORDERED.
===========================================
G.R. No. 211351, February 04, 2015
LAND BANK v. HEIRS OF JESUS ALSUA
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari are the
Decision dated October 31, 2013 and the Resolution
dated February 18, 2014 of the Court of Appeals (CA) in
CA-G.R. SP No. 127483, fixing the just compensation for
respondents' 47.4535-hectare (ha.) land at
₱2,465,423.02, less the initial valuation already paid in
the amount of Pl,369,708.02, with legal interest at the rate
of 12% per annum (p.a.) from November 13, 2001 to
June 30, 2013, and 6% p.a. from July 1, 2013 until full
satisfaction, using the formula stated in Department of
Agrarian Reform (DAR) Administrative Order (AO) No. 5,
series of 1998.
The Facts
Jesus Alsua (Jesus) owned a 62.1108 has. parcel of
unregistered agricultural land known as Lot No. 8882,
Cad-201, situated in Malidong, Pioduran, Albay, covered
by Tax Declaration No. 99-13-001-0067 in his name.
On March 6, 1994, respondents Heirs of Jesus Alsua and
their representative Bibiano C. Sabino (respondents)
voluntarily offered to sell the entire parcel of land to the
government under Republic Act No. (RA) 6657, as
amended, otherwise known as the "Comprehensive
Agrarian
Reform Law of 1988," but only 47.4535 has. thereof,
consisting of 43.7158 has. of cocoland and 3.7377 has. of
unirrigated riceland (subject lands), were acquired.
Upon receipt from the DAR of the Claim Folder (CF) on
April 20, 2001, albeit containing incomplete documents,
petitioner Land Bank of the Philippines (LBP) valued the
subject lands at 1,369,708.02 (LBP’s valuation) using the
formula stated in DAR AO No. 5, series of 1998, as
follows:
Cocoland 43.7158 ha. x ₱1,268,565.1
₱29,018.46 9 based on the industry data (PCA data) was unattainable
Unirrigated Riceland 3.7377
101,142.83
ha. x 27,060.18
₱1,369,708.02
The necessary documents were completed only in
September 2001, hence, the CF was considered to have
been received only on the latter date, and the LBP’s
valuation approved on September 25, 2001.
The DAR then offered to respondents the LBP’s valuation
as just compensation for the lands, but the latter rejected
the valuation. Thus, the LBP was prompted to deposit the
said amount in cash and in Agrarian Reform Bonds in
respondents’ name.
After summary administrative proceedings for the
determination of just compensation, docketed as DARAB
Case No. 05-01-0059-A’-2001, the Provincial Agrarian
Reform Adjudicator (PARAD), in a Decision dated
January 29, 2004, fixed the value of the subject lands at
₱5,479,744.15. The LBP moved for reconsideration but
was denied in a Resolution dated March 11, 2004.
Dissatisfied with the PARAD’s valuation, the LBP filed a
petition for determination of just compensation before the
Regional Trial Court of Legazpi City, Branch 3 (RTC),
docketed as Agrarian Case No. 04-02, averring that the
PARAD’s valuation was excessively high and is contrary
to the legally prescribed factors in determining just
compensation.
On the other hand, respondents maintained the
correctness of the PARAD’s valuation, insisting that it
considered all the factors that may be used as basis in
order to arrive at a just and equitable valuation of the
subject lands, including their potential use and
corresponding increase in value.
In the interim, or on November 29, 2001, the Register of
Deeds of Albay issued Original Certificates of Title (OCT)
Nos. C-27721 and 27722 in the names of the agrarian
reform beneficiaries.
During the pendency of the proceedings, the RTC
appointed the Agrarian Operations Center of the LBP to
conduct a reinvestigation of the gross production and
selling price data within the 12-month period preceding
June 30, 2009. On July 4, 2011, the Commissioner
submitted his Report dated July 1, 2011, finding that the
subject cocoland has a density of 80 trees per hectare
with more than 35 years of age.27 Considering the lack of
data from the landowners who were absent during the
ocular inspection, and after ascertaining that the coconut
production for the 12-month period prior to June 30, 2009
in the area since the coconut trees were still recovering
from the impact of typhoons Milenyoand Reming which hit
the country in September and November 2006,
respectively, he merely attached the production and
selling price data from the Philippine Coconut Authority
(PCA) for the concerned period.
The RTC Ruling
In a Decision dated August 17, 2012, the RTC rejected
the valuation of both the LBP and the PARAD and fixed
the just compensation for the subject lands at
₱4,245,820.53 as follows:
LV for Cocoland = ₱3,654,285.91
LV for Riceland = 350,072.98
LV for Trees = 241, 461.64
₱4,245,820.53
================
The RTC used the formula under DARAO No. 5, series of
1998, as amended, i.e., LV = (CNI x 0.9) + (MV x 0.1),
utilizing production data or values within the 12-month
period preceding the presumptive date of taking on June
30, 2009 pursuant to DAR AO No. 1, series of
2010, which "currentizes" the bases for the production
data and values and does away with the payment of
interest that will compensate for the loss of purchasing
power due to inflation. It explained that to reckon the
taking from November 29, 2001, or the date the OCTs
were issued in favor of the beneficiaries, pursuant to the
ruling in LBP v. Dumlao, will be unjust to the landowners,
considering the diminution in the purchasing power of the
peso. On the other hand, while interests may be imposed
for the delay in the payment of the compensation, such
imposition will be unjust to the State which would be
unduly penalized for the "steadfastness of the
implementors of the agrarian reform program in their
administrative determination of compensation that the
landowners had repudiated."
The LBP moved for reconsideration which was, however,
denied by the RTC in an Order dated October 25, 2012,
prompting it to elevate its case to the CA.
The CA Ruling
In a Decision dated October 31, 2013, the CA fixed the
just compensation of the subject lands at 2,465,423.02,
less the initial valuation already paid in the amount of
1,369,708.02,plus legal interest at the rate of 12% p.a.
from November 13, 2001 to June 30, 2013, and at 6%
p.a. from July 1, 2013 until full satisfaction.
The CA affirmed the applicability of the provisions of DAR
AO No. 5, series of 1998 in the computation of the just
compensation for the subject lands but declared that the
RTC erred infixing the date of taking on June 30, 2009
(i.e., the presumptive date of taking pursuant to DAR AO
No. 1, series of 2010). It pointed out that the taking of
lands under the agrarian reform program partakes of the
nature of an expropriation proceeding; thus, just
compensation should be pegged at the price or value of
the property at the time it was taken from the owner and
not its value at the time of rendition of judgment or the
filing of the complaint if the government takes possession
of the land before the institution of expropriation
proceedings.
Separately, however, the CA used different values from
that employed by the LBP in computing the capitalized
net income (CNI) for purposes of arriving at the land
value (LV) of the 43.7158 has. cocoland as the same
purportedly "did not reflect the true income generating
capacity of the property." Instead, the CA based the
selling price on the average farm gate prices of copra for
the four-year period from 2000 to 2003. On the other
hand, while it found that the RTC correctly used the one-
factor formula in computing the LV of the unirrigated
riceland, i.e., MV x 2, considering the lack of available
information on Comparable Sales, it used the market
value (MV) per tax declarationand grossed it up with the
location adjustment factor and the applicable Regional
Consumer Price Index in accordance with Item II (A.9) of
DAR AO No. 5, series of 1998. Accordingly, it valued the
subject lands as follows:
₱1,936,892.3
LV for Cocoland =
4
LV for Unirrigated Riceland = 287,069.04
LV for Trees = 241,461.64
₱2,465,423.02
Aggrieved, the LBP filed a motion for
reconsideration which was, however, denied in a
Resolution dated February 18,2014, hence, the instant
petition.
The Issue Before the Court
The essential issue for the Court’s resolution is whether
or not the CA committed any reversible error in fixing the
just compensation for the subject lands.
The Court’s Ruling
Settled is the rule that when the agrarian reform process
is still incomplete, such as in this case where the just
compensation due the landowner has yet to be settled,
just compensation should be determined and the process
be concluded under RA 6657.
For purposes of determining just compensation, the fair
market value of an expropriated property is determined by
its character and its price at the time of taking, or the
"time when the landowner was deprived of the use and
benefit of his property," such as when title is transferred in
the name of the beneficiaries, as in this case. In addition,
the factors enumerated under Section 17 of RA 6657, i.e.,
(a) the acquisition cost of the land, (b) the current value of
like properties, (c) the nature and actual use of the
property and the income therefrom, (d) the owner’s sworn
valuation, (e) the tax declarations, (f) the assessment
made by government assessors, (g) the social and
economic benefits contributed by the farmers and the
farmworkers, and by the government to the property, and
(h) the non-payment of taxes or loans secured from any
government financing institution on the said land, if any,
must be equally considered.
In this case, both the RTC and the CA applied the
provisions of DAR AO No. 5, series of 1998 in computing
the just compensation for the subject lands. Under the
said AO, there shall be one basic formula for the
valuation of lands, i.e., LV = (CNI x 0.6) + (CS x 0.3) +
(MV x 0.1), where:
LV = Land Value
CNI = Capitalized Net Income
CS = Comparable Sales
MV = Market Value per Tax Declaration
The above-stated formula shall be used only if all the
three factors i.e., CNI, CS, and MV, are present, relevant,
and applicable. In case one or two factors are not
present, the said AO provides for alternate formulas.
Records show that the comparable sales (CS) were found
to be Unavailable so the alternative formula, i.e., LV =
(CNI x 0.9) + (MV x 0.1), was used by the LBP, the RTC,
and the CA in fixing the just compensation for the subject
cocoland. On the other hand, they used the one-factor
formula under the said AO, i.e., LV = MV x 2, in valuing
the subject riceland considering the lack of comparable
sales (CS) and production data to arrive at the capitalized
net income (CNI). It appears, however, that both the RTC
and the CA made variations from the formula under the
said AO.
A. RTCAND CA VALUATION OF THE SUBJECT
COCOLAND.
For its part, the RTC used production data or values
within the 12-month period preceding the presumptive
date of taking of the subject cocoland on June 30, 2009,
in accordance with DAR AO No. 1, series of 2010. It is
significant to point out, however, that the said AO only
applies to tenanted rice and corn lands acquired under
Presidential Decree No. 27 and Executive Order No. (EO)
228, which scenario does not obtain in this case. Besides,
the long-standing rule is that an expropriated property
must be valued at the time of taking, in this case, upon
the issuance of the OCTs in the name of the beneficiaries
on November 29, 2001. Hence, the said AO cannot be
made to obtain and the RTC’s valuation cannot be
sustained.
On the other hand, while the CA correctly held that just
compensation shall be the price or value of the property
at the time it was taken from the owner and appropriated
by the government, or on November29, 2001, it, departed
from the parameters prescribed under DAR AO No. 5,
series of 1998 in computing the capitalized net income
(CNI)in order to arrive at the land value (LV) for the
subject lands. Particularly, under the foregoing AO, the
selling price (SP) for purposes of computing the
capitalized net income (CNI)shall be "the average of the
latest available 12-months' selling prices prior to the date
of receipt of the CF by LBP for processing, such prices to
be secured from the Department of Agriculture (DA) and
other appropriate regulatory bodies or, in their absence,
from the Bureau of Agricultural Statistics. x x x."
In rejecting the LBP’s proposed valuation which used the
prices of copra from July 2000 to June 2001 per
certification from the PCA, the CA opined that the data
and values used therein did not reflect the true income
generating capacity of the property. Instead, it used the
data for the four-year period from 2000 to 2003, thus,
including data or values beyond the time of taking.
Consequently, the Court similarly cannot adopt the CA’s
computation.
B. RTCAND CA VALUATION OF THE SUBJECT
RICELAND.
The RTC used the one-factor formula under DAR AO No.
5, series of 1998, utilizing unit market value (UMV) taken
from the Schedule of Base Unit Market Value as of 2002,
pursuant to the pertinent ordinance of the Sangguniang
Panlalawigan of Albay. Having been based on data or
values beyond the time of taking on November 29, 2001,
the Court cannot accept the RTC’s valuation. To reiterate,
just compensation is the fair market value of an
expropriated property at the time of taking, in this case,
the value of the subject lands upon the issuance of the
OCTs in the name of the beneficiaries on November 29,
2001.
For its part, the CA used the same formula but utilized the
unit market value (UMV) from the Schedule of Unit
Market Value for Albay effective 2000 in the amount of
₱34,690.00, and then grossed it up with the location
adjustment factor and the applicable Regional Consumer
Price Index in accordance with Item II (A.9) of DAR AO
No. 5, series of 1998. Considering that the taking took
place on November 29, 2001, the UMV should be that
corresponding for the year 2001. However, records are
bereft of showing that the UMV for the year 2000 is the
same UMV obtaining for the year 2001. Thus, on this
score, the CA’s computation must equally be rejected.
C. RTCAND CA VALUATION OF THE TREES
INCLUDED IN THE JUST COMPENSATION.
It is relevant to point out that the RTC’s valuation of the
standing trees in the amount of ₱241,461.64, as affirmed
by the CA, appears to have been pegged according to the
prevailing values within the 12-month period preceding
June 30, 2009. As mentioned, such date was long after
the subject lands’ taking on November 29,2001 and,
hence, can neither be countenanced.
D. THE PROPER VALUATION AND REMAND
GUIDELINES.
In view of the foregoing disquisitions, the just
compensation for the subject lands should be computed
based on the factors stated in Section 17 of RA 6657, as
amended. However, the Court has pored over the records
and observed that the only factors considered by both
courts in determining the just compensation were (a) the
nature and actual use of the property, and the income
therefrom, as well as (b) the market value of the subject
lands, without a showing that the other factors under the
said section were even taken into account or, otherwise,
found to be inapplicable, contrary to what the law
requires.
Similarly, the Court has gone over the LBP’s findings and
computation, as contained in the Claims and Valuation
and Processing Form, and is likewise unable to adopt the
same since it was partly based on the field investigation
report which admittedly did not consider (a) the economic
and social benefits of the subject lands, and (b) the
current value of like properties within the vicinity. To
reiterate, the factors enumerated under Section 17 of RA
6657 must be considered in computing just
compensation. Accordingly, the Court finds a need to
remand Agrarian Case No. 04-02 to the RTC for the
determination of just compensation in accordance with
these factors. Relative thereto, the RTC is further directed
to observe the following guidelines in the remand of the
case:
1. Just compensation must be valued at the time of
taking, or the "time when the landowner was deprived of
the use and benefit of his property, in this case, upon the
issuance of OCT Nos. C-27721 and 27722 in the names
of the agrarian reform beneficiaries on November 29,
2001. Hence, the evidence to be presented by the parties
before the trial court for the valuation of the subject lands
must be based on the values prevalent on such time of
taking for like agricultural lands.
2. The evidence must conform to Section 17 of RA 6657,
as amended, prior to its amendment by RA 9700. It bears
pointing out that while Congress passed RA 9700 on July
1, 2009, amending certain provisions of RA 6657, as
amended, among them, Section 17, and declaring "[t]hat
all previously acquired lands wherein valuation is subject
to challenge by landowners shall be completed and finally
resolved pursuant to Section 17 of [RA 6657], as
amended," the law should not be retroactively applied to
pending claims/cases. In fact, DAR AO No. 2, series of
2009 implementing RA 9700 expressly excepted from the
application of the amended Section 17 all claim folders
received by LBP prior to July1, 2009, which shall be
valued in accordance with Section 17 of RA 6657,as
amended, prior to its further amendment by RA No. 9700
Records show that the CF from the DAR was actually
received by the LBP on April 20, 2001, but the latter
considered the same as received only later in September
2001 with the completion of the necessary
documents. Hence, Section 17 of RA 6657, as amended,
prior to its further amendment by RA 9700, should be the
basis for the valuation of the subject lands. In the event
that the respondents had already withdrawn the amount
deposited by the LBP, the withdrawn amount should be
deducted from the final land valuation to be paid by LBP.
3. The RTC may impose interest on the just
compensation as may be warranted by the circumstances
of the case. In previous cases, the Court has allowed the
grant of legal interest in expropriation cases where there
is delay in the payment since the just compensation due
to the landowners was deemed to be an effective
forbearance on the part of the State. Legal interest shall
be pegged at the rate of 12% interest p.a. from the time of
taking until June 30, 2013 only. Thereafter, or beginning
July 1, 2013, until fully paid, interest shall be at 6% p.a. in
line with the amendment introduced by BSP-MB Circular
No. 799, series of 2013.
4. Finally, the RTC is advised that while it should be
mindful of the different formulae created by the DAR in
arriving at just compensation, it is not strictly bound to
adhere thereto if the situations before it do not warrant
their application. As held in LBP v. Heirs of Maximo
Puyat:
[T]he determination of just compensation is a judicial
function; hence, courts cannot be unduly restricted in their
determination thereof. To do so would deprive the courts
of their judicial prerogatives and reduce them to the
bureaucratic function of inputting data and arriving at the
valuation. While the courts should be mindful of the
different formulae created by the DAR in arriving at just
compensation, they are not strictly bound to adhere
thereto if the situations before them do not warrant it. Apo
Fruits Corporation v. Court of Appeals[(565 Phil. 418
(2007)] thoroughly discusses this issue, to wit:
[T]he basic formula and its alternatives–administratively
determined (as it is not found in Republic Act No. 6657,
but merely set forth in DARAO No. 5, Series of 1998)–
although referred to and even applied by the courts in
certain instances, does not and cannot strictly bind the
courts. To insist that the formula must be applied with
utmost rigidity whereby the valuation is drawn following a
strict mathematical computation goes beyond the intent
and spirit of the law. The suggested interpretation is
strained and would render the law inutile. Statutory
construction should not kill but give life to the law. As we
have established in earlier jurisprudence, the valuation of
property in eminent domain is essentially a judicial
function which is vested in the regional trial court acting
as a SAC, and not in administrative agencies. The SAC,
therefore, must still be able to reasonably exercise its
judicial discretion in the evaluation of the factors for just
compensation, which cannot be arbitrarily restricted by a
formula dictated by the DAR, an administrative agency.
Surely, DAR AO No. 5 did not intend to straightjacket the
hands of the court in the computation of the land
valuation. While it provides a formula, it could not have
been its intention to shackle the courts into applying the
formula in every instance. The court shall apply the
formula after an evaluation of the three factors, or it may
proceed to make its own computation based on the
extended list in Section 17 of Republic Act No. 6657,
which includes other factors[.] x x x.
WHEREFORE, the petition is DENIED insofar as it seeks
to sustain the valuation of the subject lands made by
petitioner Land Bank of the Philippines.1âwphi1 The
Decision dated October 31, 2013 and the Resolution
dated February 18, 2014 rendered by the Court of
Appeals in CA-G.R. SP No. 127483, fixing the just
compensation for respondents' 47.4535 hectares of land
at ₱2,465,423.02, less the initial valuation already paid in
the amount of Pl ,369, 708.02, plus legal interest as
afore-discussed, which did not fully consider the factors
enumerated under Section 17 of Republic Act No. 6657,
as amended, are hereby SET ASIDE. Accordingly,
Agrarian Case No. 04-02 is REMANDED to the Regional
Trial Court of Legazpi City, Branch 3 for the proper
determination of just compensation in accordance with
the guidelines set in this Decision. The trial court is
directed to conduct the proceedings in said case with
reasonable dispatch and to submit to the Court a report
on its findings and recommended conclusions within sixty
(60) days from notice of this Decision.

SO ORDERED.