Bishop Roderick S. Pabillo et al., v. Commission on Elections En Banc, G.R. No. 216098, 21 April 2015 Constitutional Law; Requisites for Judicial Review; Public Interest Exception – Indeed, the conduct of the upcoming 2016 Elections is dependent on the functional state of the existing PCOS machines purchased by the COMELEC. PCOS means “a technology wherein an optical ballot scanner, into which optical scan paper ballots marked by hand by the voter are inserted to be counted, is located in every precinct.” As the AES’s groundwork mechanism, it is imperative that the PCOS machines, come election day, are of optimal utility. Following the CAC’s recommendation to re-use the existing technology for the said elections, the COMELEC proceeded to procure services for the repair and refurbishment of the PCOS machines. The COMELEC, however, through its Resolution No. 9922, decided to pursue a direct contracting arrangement with Smartmatic-TIM, which has now resulted in the execution of the Extended Warranty Contract (Program 1). Petitioners assail the validity of the foregoing courses of action mainly for violating the GPRA. Thus, if only to ensure that the upcoming elections is not mired with illegality at this basic, initial front, this Court, pursuant to its unyielding duty as final arbiter of the laws, deems it proper to thresh out the above-stated substantive issues, reasonably unfettered by the rigors of procedure. Administrative Law; Government Procurement; Alternative Procurement Methods; Requisites – [T]he Manual of Procedures for the Procurement of Goods and Services of the Government Procurement Policy Board (GPPB Manual) explains that the GPRA allows the use of alternative methods of procurement in some exceptional instances, provided: (a) there is prior approval of the Head of the Procuring Entity on the use of alternative methods of procurement, as recommended by the BAC; and (b) the conditions required by law for the use of alternative methods are present. As additional requisites, (c) the Procuring Entity must ensure that the method chosen promotes economy and efficiency, and (d) that the most advantageous price for the government is obtained. Words and Phrases; Proprietary Nature – Goods are considered to be of “proprietary nature” when they are owned by a person who has a protectable interest in them or an interest protected by intellectual property laws. Administrative Law; Government Procurement; Services for Repair and Refurbishment Are Covered By Public Bidding Requirement – However, it is at once apparent that the “goods” subject of these cases neither pertain to the PCOS machines nor the software program aforementioned, but rather to the services for the machines’ repair and refurbishment, which in itself constitutes a distinct contract object that is susceptible to government procurement through competitive public bidding. As defined in Section 5 (h), Article I of the GPRA, “services such as the repair and maintenance of equipment” are included within the ambit of the term “goods” as applied within the context of the procurement law. Intellectual Property Law; Scope of License to Use – At any rate, even if it is assumed that Smartmatic-TIM is the proprietary source of the services or that the intended repair and refurbishment would necessarily entail a modification of the PCOS hardware and software of which its existing intellectual property rights cover, the COMELEC is still not bound to engage Smartmatic-TIM on an exclusive basis. Based on the 2009 AES Contract, Smartmatic-TIM would grant the COMELEC a perpetual, but 1
Transcript
Bishop Roderick S. Pabillo et al., v. Commission on Elections En Banc, G.R. No. 216098, 21 April 2015
Constitutional Law; Requisites for Judicial Review; Public Interest Exception – Indeed, the conduct of the upcoming 2016 Elections is dependent on the functional state of the existing PCOS machines purchased by the COMELEC. PCOS means “a technology wherein an optical ballot scanner, into which optical scan paper ballots marked by hand by the voter are inserted to be counted, is located in every precinct.” As the AES’s groundwork mechanism, it is imperative that the PCOS machines, come election day, are of optimal utility. Following the CAC’s recommendation to re-use the existing technology for the said elections, the COMELEC proceeded to procure services for the repair and refurbishment of the PCOS machines. The COMELEC, however, through its Resolution No. 9922, decided to pursue a direct contracting arrangement with Smartmatic-TIM, which has now resulted in the execution of the Extended Warranty Contract (Program 1). Petitioners assail the validity of the foregoing courses of action mainly for violating the GPRA. Thus, if only to ensure that the upcoming elections is not mired with illegality at this basic, initial front, this Court, pursuant to its unyielding duty as final arbiter of the laws, deems it proper to thresh out the above-stated substantive issues, reasonably unfettered by the rigors of procedure.
Administrative Law; Government Procurement; Alternative Procurement Methods; Requisites – [T]he Manual of Procedures for the Procurement of Goods and Services of the Government Procurement Policy Board (GPPB Manual) explains that the GPRA allows the use of alternative methods of procurement in some exceptional instances, provided: (a) there is prior approval of the Head of the Procuring Entity on the use of alternative methods of procurement, as recommended by the BAC; and (b) the conditions required by law for the use of alternative methods are present. As additional requisites, (c) the Procuring Entity must ensure that the method chosen promotes economy and efficiency, and (d) that the most advantageous price for the government is obtained.
Words and Phrases; Proprietary Nature – Goods are considered to be of “proprietary nature” when they are owned by a person who has a protectable interest in them or an interest protected by intellectual property laws.
Administrative Law; Government Procurement; Services for Repair and Refurbishment Are Covered By Public Bidding Requirement – However, it is at once apparent that the “goods” subject of these cases neither pertain to the PCOS machines nor the software program aforementioned, but rather to the services for the machines’ repair and refurbishment, which in itself constitutes a distinct contract object that is susceptible to government procurement through competitive public bidding. As defined in Section 5 (h), Article I of the GPRA, “services such as the
repair and maintenance of equipment” are included within the ambit of the term “goods” as applied within the context of the procurement law.
Intellectual Property Law; Scope of License to Use – At any rate, even if it is assumed that Smartmatic-TIM is the proprietary source of the services or that the intended repair and refurbishment would necessarily entail a modification of the PCOS hardware and software of which its existing intellectual property rights cover, the COMELEC is still not bound to engage Smartmatic-TIM on an exclusive basis. Based on the 2009 AES Contract, Smartmatic-TIM would grant the COMELEC a perpetual, but non-exclusive license to use, modify, and customize the PCOS systems and software, including the right to alter and modify the source code itself, for all future elections, when the latter exercises its option to purchase (which it eventually did), with certain limitations as hereunder stated:
XXX
Indeed, the license granted is but a natural incident of the COMELEC’s exercise of the OTP, by which it had acquired ownership over the PCOS machines; hence, the COMELEC should already be able to freely exploit them for the purpose that they were purchased. The only limitations, as may be above-gleaned, are on their commercialization as such would be clearly foreign to the contract’s objective. It would be both absurd and unfair if the COMELEC’s ability to effectively operate the machines would remain solely dependent on Smartmatic-TIM notwithstanding its acquired ownership over the same. While the intellectual property rights of Smartmatic-TIM were acknowledged by the COMELEC, by no means was it precluded – as it should not be precluded – from the complete utilization of the machines as long as it advances election-related purposes: XXX
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G.R. No. 195390, December 10, 2014
GOV. LUIS RAYMUND F. VILLAFUERTE, JR., AND THE PROVINCE OF CAMARINES SUR, Petitioners, v. HON. JESSE M. ROBREDO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, Respondent.
D E C I S I O N
REYES, J.:This is a petition for certiorari and prohibition1 under Rule 65 of the 1997 Revised Rules of Court filed by former Governor Luis Raymund F. Villafuerte, Jr. (Villafuerte) and the Province of Camarines Sur (petitioners), seeking to annul and set aside the following issuances of the late Honorable Jesse M. Robredo (respondent), in his capacity as then Secretary of the Department of the Interior and Local Government (DILG), to wit:
(a) Memorandum Circular (MC) No. 2010-83 dated August 31, 2010, pertaining to the full disclosure of local budget and finances, and bids and public offerings;2 (b) MC No. 2010-138 dated December 2, 2010, pertaining to the use of the 20% component of the annual internal revenue allotment shares;3 and (c) MC No. 2011-08 dated January 13, 2011, pertaining to the strict adherence to Section 90 of Republic Act (R.A.) No. 10147 or the General Appropriations Act of 2011.4
The petitioners seek the nullification of the foregoing issuances on the ground of unconstitutionality and for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
The Facts
In 1995, the Commission on Audit (COA) conducted an examination and audit on the manner the local government units (LGUs) utilized their Internal Revenue Allotment (IRA) for the calendar years 1993-1994. The examination yielded an official report, showing that a substantial portion of the 20% development fund of some LGUs was not actually utilized for development projects but was diverted to
expenses properly chargeable against the Maintenance and Other Operating Expenses (MOOE), in stark violation of Section 287 of R.A. No. 7160, otherwise known as the Local Government Code of 1991 (LGC). Thus, on December 14, 1995, the DILG issued MC No. 95-216,5 enumerating the policies and guidelines on the utilization of the development fund component of the IRA. It likewise carried a reminder to LGUs of the strict mandate to ensure that public funds, like the 20% development fund, “shall be spent judiciously and only for the very purpose or purposes for which such funds are intended.”6
On September 20, 2005, then DILG Secretary Angelo T. Reyes and Department of Budget and Management Secretary Romulo L. Neri issued Joint MC No. 1, series of 2005,7 pertaining to the guidelines on the appropriation and utilization of the 20% of the IRA for development projects, which aims to enhance accountability of the LGUs in undertaking development projects. The said memorandum circular underscored that the 20% of the IRA intended for development projects should be utilized for social development, economic development and environmental management.8
On August 31, 2010, the respondent, in his capacity as DILG Secretary, issued the assailed MC No. 2010-83,9 entitled “Full Disclosure of Local Budget and Finances, and Bids and Public Offerings,” which aims to promote good governance through enhanced transparency and accountability of LGUs. The pertinent portion of the issuance reads:
Legal and Administrative Authority
Section 352 of the Local Government Code of 1991 requires the posting within 30 days from the end of each fiscal year in at least three (3) publicly accessible and conspicuous places in the local government unit a summary of all revenues collected and funds received including the appropriations and disbursements of such funds during the preceding fiscal year.
On the other hand, Republic Act No. 9184, known as the Government Procurement Reform Act, calls for the posting of the Invitation to Bid, Notice of Award, Notice to Proceed and Approved Contract in the procuring entity’s premises, in newspapers of general circulation, the Philippine Government Electronic Procurement System (PhilGEPS) and the website of the procuring entity.
The declared policy of the State to promote good local governance also calls for the posting of budgets, expenditures, contracts and loans, and procurement plans of local government units in conspicuous places within public buildings in the locality, in the web, and in print media of community or general circulation.
2
Furthermore, the President, in his first State of the Nation Address, directed all government agencies and entities to bring to an end luxurious spending and misappropriation of public funds and to expunge mendacious and erroneous projects, and adhere to the zero-based approach budgetary principle.
Responsibility of the Local Chief Executive
All Provincial Governors, City Mayors and Municipal Mayors, are directed to faithfully comply with the abovecited [sic] provisions of laws, and existing national policy, by posting in conspicuous places within public buildings in the locality, or in print media of community or general circulation, and in their websites, the following:
CY 2010 Annual Budget, information detail to the level of particulars of personal services, maintenance and other operating expenses and capital outlay per individual offices (Source Document - Local Budget Preparation Form No. 3, titled, Program Appropriation and Obligation by Object of Expenditure, limited to PS, MOOE and CO. For sample form, please visit www.naga.gov.ph);
Quarterly Statement of Cash Flows, information detail to the level of particulars of cash flows from operating activities (e.g. cash inflows, total cash inflows, total cash outflows), cash flows from investing activities (e.g. cash outflows), net increase in cash and cash at the beginning of the period (Source Document - Statement of Cash Flows Form);
CY 2009 Statement of Receipts and Expenditures, information detail to the level of particulars of beginning cash balance, receipts or income on local sources (e.g., tax revenue, non-tax revenue), external sources, and receipts from loans and borrowings, surplus of prior years, expenditures on general services, economic services, social services and debt services, and total expenditures (Source Document - Local Budget Preparation Form No. 2, titled, Statement of Receipts and Expenditures);
CY 2010 Trust Fund (PDAF) Utilization, information detail to the level of particulars of object expenditures (Source Document - Local Budget Preparation Form No. 3, titled, Program Appropriation and Obligation by Object of Expenditure, limited to PDAF Utilization);
CY 2010 Special Education Fund Utilization, information detail to the level of particulars of object expenditures (Source Document - Local Budget Preparation Form No. 3, titled, Program Appropriation and Obligation by Object of Expenditure, limited to Special Education Fund);
CY 2010 20% Component of the IRA Utilization, information detail to the level of particulars of objects of expenditure on social development, economic
development and environmental management (Source Document - Local Budget Preparation Form No. 3, titled, Program Appropriation and Obligation by Object of Expenditure, limited to 20% Component of the Internal Revenue Allotment);
CY 2010 Gender and Development Fund Utilization, information detail to the level of particulars of object expenditures (Source Document - Local Budget Preparation Form No. 3, titled, Program Appropriation and Obligation by Object of Expenditure, limited to Gender and Development Fund);
CY 2010 Statement of Debt Service, information detail to the level of name of creditor, purpose of loan, date contracted, term, principal amount, previous payment made on the principal and interest, amount due for the budget year and balance of the principal (Source Document - Local Budget Preparation Form No. 6, titled, Statement of Debt Service);
CY 2010 Annual Procurement Plan or Procurement List, information detail to the level of name of project, individual item or article and specification or description of goods and services, procurement method, procuring office or fund source, unit price or estimated cost or approved budget for the contract and procurement schedule (Source Document - LGU Form No. 02, Makati City. For sample form, please visit www.makati.gov.ph.)[;]
Items to Bid, information detail to the level of individual Invitation to Bid, containing information as prescribed in Section 21.1 of Republic Act No. 9184, or The Government Procurement Reform Act, to be updated quarterly (Source Document - Invitation to Apply for Eligibility and to Bid, as prescribed in Section 21.1 of R.A. No. 9184. For sample form, please visit www.naga.gov.ph);
Bid Results on Civil Works, and Goods and Services, information detail to the level of project reference number, name and location of project, name (company and proprietor) and address of winning bidder, bid amount, approved budget for the contract, bidding date, and contract duration, to be updated quarterly (Source Document – Infrastructure Projects/Goods and Services Bid-Out (2010), Naga City. For sample form, please visit www.naga.gov.ph); and
Abstract of Bids as Calculated, information detail to the level of project name, location, implementing office, approved budget for the contract, quantity and items subject for bidding, and bids of competing bidders, to be updated quarterly (Source Document - Standard Form No. SF-GOOD-40, Revised May 24, 2004, Naga City. For sample form, please visit www.naga.gov.ph).
The foregoing circular also states that non-compliance will be meted sanctions in accordance with pertinent laws, rules and regulations.10
3
On December 2, 2010, the respondent issued MC No. 2010-138,11 reiterating that 20% component of the IRA shall be utilized for desirable social, economic and environmental outcomes essential to the attainment of the constitutional objective of a quality of life for all. It also listed the following enumeration of expenses for which the fund must not be utilized, viz:
Administrative expenses such as cash gifts, bonuses, food allowance, medical assistance, uniforms, supplies, meetings, communication, water and light, petroleum products, and the like; Salaries, wages or overtime pay; Travelling expenses, whether domestic or foreign; Registration or participation fees in training, seminars, conferences or conventions; Construction, repair or refinishing of administrative offices; Purchase of administrative office furniture, fixtures, equipment or appliances; and Purchase, maintenance or repair of motor vehicles or motorcycles, except ambulances.12
On January 13, 2011, the respondent issued MC No. 2011-08,13 directing for the strict adherence to Section 90 of R.A. No. 10147 or the General Appropriations Act of 2011. The pertinent portion of the issuance reads as follows:
Legal and Administrative Authority
· Section 90 of Republic Act No. 10147 (General Appropriations Act) FY 2011 re “Use and Disbursement of Internal Revenue Allotment of LGUs”, [sic] stipulates: The amount appropriated for the LGU’s share in the Internal Revenue Allotment shall be used in accordance with Sections 17 (g) and 287 of R.A. No 7160. The annual budgets of LGUs shall be prepared in accordance with the forms, procedures, and schedules prescribed by the Department of Budget and Management and those jointly issued with the Commission on Audit. Strict compliance with Sections 288 and 354 of R.A. No. 7160 and DILG Memorandum Circular No. 2010-83, entitled “Full Disclosure of Local Budget and Finances, and Bids and Public offering” is hereby mandated; PROVIDED, That in addition to the publication or posting requirement under Section 352 of R.A. No. 7160 in three (3) publicly accessible and conspicuous places in the local government unit, the LGUs shall also post the detailed information on the use and disbursement, and status of programs and projects in the LGUS websites. Failure to comply with these requirements shall subject the responsible officials to disciplinary actions in accordance with existing laws. x x x14
x x x x
Sanctions
Non-compliance with the foregoing shall be dealt with in accordance with pertinent laws, rules and regulations. In particular, attention is invited to the provision of the Local Government Code of 1991, quoted as follows:chanroblesvirtuallawlibrary
Section 60. Grounds for Disciplinary Actions - An elective local official may be disciplined, suspended, or removed from office on: (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty . x x x15 (Emphasis and underscoring in the original)
On February 21, 2011, Villafuerte, then Governor of Camarines Sur, joined by the Provincial Government of Camarines Sur, filed the instant petition for certiorari, seeking to nullify the assailed issuances of the respondent for being unconstitutional and having been issued with grave abuse of discretion.
On June 2, 2011, the respondent filed his Comment on the petition.16 Then, on June 22, 2011, the petitioners filed their Reply (With Urgent Prayer for the Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order).17 In the Resolution18 dated October 11, 2011, the Court gave due course to the petition and directed the parties to file their respective memorandum. In compliance therewith, the respondent and the petitioners filed their Memorandum on January 19, 201219 and on February 8, 201220 respectively.
The petitioners raised the following issues:
Issues
I
THE HON. SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN HE ISSUED THE ASSAILED MEMORANDUM CIRCULARS IN VIOLATION OF THE PRINCIPLES OF LOCAL AUTONOMY AND FISCAL AUTONOMY ENSHRINED IN THE 1987 CONSTITUTION AND THE LOCAL GOVERNMENT CODE OF 1991[.]
II
4
THE HON. SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN HE INVALIDLY ASSUMED LEGISLATIVE POWERS IN PROMULGATING THE ASSAILED MEMORANDUM CIRCULARS WHICH WENT BEYOND THE CLEAR AND MANIFEST INTENT OF THE 1987 CONSTITUTION AND THE LOCAL GOVERNMENT CODE OF 1991[.]21
Ruling of the Court
The present petition revolves around the main issue: Whether or not the assailed memorandum circulars violate the principles of local and fiscal autonomy enshrined in the Constitution and the LGC.
The present petition is ripe forjudicial review.
At the outset, the respondent is questioning the propriety of the exercise of the Court’s power of judicial review over the instant case. He argues that the petition is premature since there is yet any actual controversy that is ripe for judicial determination. He points out the lack of allegation in the petition that the assailed issuances had been fully implemented and that the petitioners had already exhausted administrative remedies under Section 25 of the Revised Administrative Code before filing the same in court.22
It is well-settled that the Court’s exercise of the power of judicial review requires the concurrence of the following elements: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.23
The respondent claims that there is yet any actual case or controversy that calls for the exercise of judicial review. He contends that the mere expectation of an administrative sanction does not give rise to a justiciable controversy especially, in this case, that the petitioners have yet to exhaust administrative remedies available.24
The Court disagrees.
In La Bugal-B’laan Tribal Association, Inc. v. Ramos,25 the Court characterized an actual case or controversy, viz:
An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion. The power does not extend to hypothetical questions since any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.26 (Citations omitted)
The existence of an actual controversy in the instant case cannot be overemphasized. At the time of filing of the instant petition, the respondent had already implemented the assailed memorandum circulars. In fact, on May 26, 2011, Villafuerte received Audit Observation Memorandum (AOM) No. 2011-009 dated May 10, 201127 from the Office of the Provincial Auditor of Camarines Sur, requiring him to comment on the observation of the audit team, which states:
The Province failed to post the transactions and documents required under Department of Interior and Local Government (DILG) Memorandum Circular No. 2010-83, thereby violating the mandate of full disclosure of Local Budget and Finances, and Bids and Public Offering.
x x x x
The local officials concerned are reminded of the sanctions mentioned in the circular which is quoted hereunder, thus:
“Noncompliance with the foregoing shall be dealt with in accordance with pertinent laws, rules and regulations. In particular, attention is invited to the provision of Local Government Code of 1991, quoted as follows:chanroblesvirtuallawlibrary
Section 60. Grounds for Disciplinary Actions – An elective local official may be disciplined, suspended or removed from office on: (c) Dishonesty, oppression, misconduct in office, gross negligence or dereliction of duty.”28
The issuance of AOM No. 2011-009 to Villafuerte is a clear indication that the assailed issuances of the respondent are already in the full course of implementation. The audit memorandum specifically mentioned of Villafuerte’s alleged non-compliance with MC No. 2010-83 regarding the posting requirements stated in the circular and reiterated the sanctions that may be imposed for the omission. The fact that Villafuerte is being required to comment on the contents of AOM No. 2011-009
5
signifies that the process of investigation for his alleged violation has already begun. Ultimately, the investigation is expected to end in a resolution on whether a violation has indeed been committed, together with the appropriate sanctions that come with it. Clearly, Villafuerte’s apprehension is real and well-founded as he stands to be sanctioned for non-compliance with the issuances.
There is likewise no merit in the respondent’s claim that the petitioners’ failure to exhaust administrative remedies warrants the dismissal of the petition. It bears emphasizing that the assailed issuances were issued pursuant to the rule-making or quasi-legislative power of the DILG. This pertains to “the power to make rules and regulations which results in delegated legislation that is within the confines of the granting statute.”29 Not to be confused with the quasi-legislative or rule-making power of an administrative agency is its quasi-judicial or administrative adjudicatory power. This is the power to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance with the standards laid down by the law itself in enforcing and administering the same law.30 In challenging the validity of an administrative issuance carried out pursuant to the agency’s rule-making power, the doctrine of exhaustion of administrative remedies does not stand as a bar in promptly resorting to the filing of a case in court. This was made clear by the Court in Smart Communications, Inc. (SMART) v. National Telecommunications Commission (NTC),31 where it was ruled, thus:
In questioning the validity or constitutionality of a rule or regulation issued by an administrative agency, a party need not exhaust administrative remedies before going to court. This principle applies only where the act of the administrative agency concerned was performed pursuant to its quasi-judicial function, and not when the assailed act pertained to its rule-making or quasi-legislative power. x x x.32
Considering the foregoing clarification, there is thus no bar for the Court to resolve the substantive issues raised in the petition.
The assailed memorandum circularsdo not transgress the local and fiscalautonomy granted to LGUs.
The petitioners argue that the assailed issuances of the respondent interfere with the local and fiscal autonomy of LGUs embodied in the Constitution and the LGC. In particular, they claim that MC No. 2010-138 transgressed these constitutionally-protected liberties when it restricted the meaning of “development” and enumerated activities which the local government must finance from the 20% development fund component of the IRA and provided sanctions for local authorities who shall use the said component of the fund for the excluded purposes stated therein.33 They argue that the respondent cannot substitute his own discretion with that of the local
legislative council in enacting its annual budget and specifying the development projects that the 20% component of its IRA should fund.34
The argument fails to persuade.
The Constitution has expressly adopted the policy of ensuring the autonomy of LGUs.35 To highlight its significance, the entire Article X of the Constitution was devoted to laying down the bedrock upon which this policy is anchored.
It is also pursuant to the mandate of the Constitution of enhancing local autonomy that the LGC was enacted. Section 2 thereof was a reiteration of the state policy. It reads, thus:
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the national government to the local government units.
Verily, local autonomy means a more responsive and accountable local government structure instituted through a system of decentralization.36 In Limbona v. Mangelin,37 the Court elaborated on the concept of decentralization, thus:
[A]utonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments “more responsive and accountable,” and “ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress.” At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. x x x.
Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments [sic] units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. x x x.38 (Citations omitted)
6
To safeguard the state policy on local autonomy, the Constitution confines the power of the President over LGUs to mere supervision.39 “The President exercises ‘general supervision’ over them, but only to ‘ensure that local affairs are administered according to law.’ He has no control over their acts in the sense that he can substitute their judgments with his own.”40 Thus, Section 4, Article X of the Constitution, states:
Section 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.
In Province of Negros Occidental v. Commissioners, Commission on Audit,41 the Court distinguished general supervision from executive control in the following manner:
The President’s power of general supervision means the power of a superior officer to see to it that subordinates perform their functions according to law. This is distinguished from the President’s power of control which is the power to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the President over that of the subordinate officer. The power of control gives the President the power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of discretion.42 (Citations omitted)
It is the petitioners’ contention that the respondent went beyond the confines of his supervisory powers, as alter ego of the President, when he issued MC No. 2010-138. They argue that the mandatory nature of the circular, with the threat of imposition of sanctions for non-compliance, evinces a clear desire to exercise control over LGUs.43
The Court, however, perceives otherwise.
A reading of MC No. 2010-138 shows that it is a mere reiteration of an existing provision in the LGC. It was plainly intended to remind LGUs to faithfully observe the directive stated in Section 287 of the LGC to utilize the 20% portion of the IRA for development projects. It was, at best, an advisory to LGUs to examine themselves if they have been complying with the law. It must be recalled that the assailed circular was issued in response to the report of the COA that a substantial portion of the 20% development fund of some LGUs was not actually utilized for
development projects but was diverted to expenses more properly categorized as MOOE, in violation of Section 287 of the LGC. This intention was highlighted in the very first paragraph of MC No. 2010-138, which reads:
Section 287 of the Local Government Code mandates every local government to appropriate in its annual budget no less than 20% of its annual revenue allotment for development projects. In common understanding, development means the realization of desirable social, economic and environmental outcomes essential in the attainment of the constitutional objective of a desired quality of life for all.44 (Underscoring in the original)
That the term development was characterized as the “realization of desirable social, economic and environmental outcome” does not operate as a restriction of the term so as to exclude some other activities that may bring about the same result. The definition was a plain characterization of the concept of development as it is commonly understood. The statement of a general definition was only necessary to illustrate among LGUs the nature of expenses that are properly chargeable against the development fund component of the IRA. It is expected to guide them and aid them in rethinking their ways so that they may be able to rectify lapses in judgment, should there be any, or it may simply stand as a reaffirmation of an already proper administration of expenses.
The same clarification may be said of the enumeration of expenses in MC No. 2010-138. To begin with, it is erroneous to call them exclusions because such a term signifies compulsory disallowance of a particular item or activity. This is not the contemplation of the enumeration. Again, it is helpful to retrace the very reason for the issuance of the assailed circular for a better understanding. The petitioners should be reminded that the issuance of MC No. 2010-138 was brought about by the report of the COA that the development fund was not being utilized accordingly. To curb the alleged misuse of the development fund, the respondent deemed it proper to remind LGUs of the nature and purpose of the provision for the IRA through MC No. 2010-138. To illustrate his point, he included the contested enumeration of the items for which the development fund must generally not be used. The enumerated items comprised the expenses which the COA perceived to have been improperly earmarked or charged against the development fund based on the audit it conducted.
Contrary to the petitioners’ posturing, however, the enumeration was not meant to restrict the discretion of the LGUs in the utilization of their funds. It was meant to enlighten LGUs as to the nature of the development fund by delineating it from other types of expenses. It was incorporated in the assailed circular in order to guide them in the proper disposition of the IRA and avert further misuse of the fund by citing current practices which seemed to be incompatible with the purpose of the fund.
7
Even then, LGUs remain at liberty to map out their respective development plans solely on the basis of their own judgment and utilize their IRAs accordingly, with the only restriction that 20% thereof be expended for development projects. They may even spend their IRAs for some of the enumerated items should they partake of indirect costs of undertaking development projects. In such case, however, the concerned LGU must ascertain that applicable rules and regulations on budgetary allocation have been observed lest it be inviting an administrative probe.
The petitioners likewise misread the issuance by claiming that the provision of sanctions therein is a clear indication of the President’s interference in the fiscal autonomy of LGUs. The relevant portion of the assailed issuance reads, thus:
All local authorities are further reminded that utilizing the 20% component of the Internal Revenue Allotment, whether willfully or through negligence, for any purpose beyond those expressly prescribed by law or public policy shall be subject to the sanctions provided under the Local Government Code and under such other applicable laws.45
Significantly, the issuance itself did not provide for sanctions. It did not particularly establish a new set of acts or omissions which are deemed violations and provide the corresponding penalties therefor. It simply stated a reminder to LGUs that there are existing rules to consider in the disbursement of the 20% development fund and that non-compliance therewith may render them liable to sanctions which are provided in the LGC and other applicable laws. Nonetheless, this warning for possible imposition of sanctions did not alter the advisory nature of the issuance.
At any rate, LGUs must be reminded that the local autonomy granted to them does not completely severe them from the national government or turn them into impenetrable states. Autonomy does not make local governments sovereign within the state.46 In Ganzon v. Court of Appeals,47 the Court reiterated:
Autonomy, however, is not meant to end the relation of partnership and interdependence between the central administration and local government units, or otherwise, to usher in a regime of federalism. The Charter has not taken such a radical step. Local governments, under the Constitution, are subject to regulation, however limited, and for no other purpose than precisely, albeit paradoxically, to enhance self-government.48
Thus, notwithstanding the local fiscal autonomy being enjoyed by LGUs, they are still under the supervision of the President and maybe held accountable for malfeasance or violations of existing laws. “Supervision is not incompatible with discipline. And the power to discipline and ensure that the laws be faithfully
executed must be construed to authorize the President to order an investigation of the act or conduct of local officials when in his opinion the good of the public service so requires.”49
Clearly then, the President’s power of supervision is not antithetical to investigation and imposition of sanctions. In Hon. Joson v. Exec. Sec. Torres,50 the Court pointed out, thus:
“Independently of any statutory provision authorizing the President to conduct an investigation of the nature involved in this proceeding, and in view of the nature and character of the executive authority with which the President of the Philippines is invested, the constitutional grant to him of power to exercise general supervision over all local governments and to take care that the laws be faithfully executed must be construed to authorize him to order an investigation of the act or conduct of the petitioner herein. Supervision is not a meaningless thing. It is an active power. It is certainly not without limitation, but it at least implies authority to inquire into facts and conditions in order to render the power real and effective. x x x.”51 (Emphasis ours and italics in the original)
As in MC No. 2010-138, the Court finds nothing in two other questioned issuances of the respondent, i.e., MC Nos. 2010-83 and 2011-08, that can be construed as infringing on the fiscal autonomy of LGUs. The petitioners claim that the requirement to post other documents in the mentioned issuances went beyond the letter and spirit of Section 352 of the LGC and R.A. No. 9184, otherwise known as the Government Procurement Reform Act, by requiring that budgets, expenditures, contracts and loans, and procurement plans of LGUs be publicly posted as well.52
Pertinently, Section 352 of the LGC reads:
Section 352. Posting of the Summary of Income and Expenditures. – Local treasurers, accountants, budget officers, and other accountable officers shall, within thirty (30) days from the end of the fiscal year, post in at least three (3) publicly accessible and conspicuous places in the local government unit a summary of all revenues collected and funds received including the appropriations and disbursements of such funds during the preceding fiscal year.
R.A. No. 9184, on the other hand, requires the posting of the invitation to bid, notice of award, notice to proceed, and approved contract in the procuring entity’s premises, in newspapers of general circulation, and the website of the procuring entity.53
8
It is well to remember that fiscal autonomy does not leave LGUs with unbridled discretion in the disbursement of public funds. They remain accountable to their constituency. For, public office was created for the benefit of the people and not the person who holds office.
The Court strongly enunciated in ABAKADA GURO Party List (formerly AASJS), et al. v. Hon. Purisima, et al.,54 thus:
Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the benefit of the public for whom he holds it in trust. By demanding accountability and service with responsibility, integrity, loyalty, efficiency, patriotism and justice, all government officials and employees have the duty to be responsive to the needs of the people they are called upon to serve.55
Thus, the Constitution strongly summoned the State to adopt and implement a policy of full disclosure of all transactions involving public interest and provide the people with the right to access public information.56 Section 352 of the LGC is a response to this call for transparency. It is a mechanism of transparency and accountability of local government officials and is in fact incorporated under Chapter IV of the LGC which deals with “Expenditures, Disbursements, Accounting and Accountability.”
In the same manner, R.A. No. 9184 established a system of transparency in the procurement process and in the implementation of procurement contracts in government agencies.57 It is the public monitoring of the procurement process and the implementation of awarded contracts with the end in view of guaranteeing that these contracts are awarded pursuant to the provisions of the law and its implementing rules and regulations, and that all these contracts are performed strictly according to specifications.58
The assailed issuances of the respondent, MC Nos. 2010-83 and 2011-08, are but implementation of this avowed policy of the State to make public officials accountable to the people. They are amalgamations of existing laws, rules and regulation designed to give teeth to the constitutional mandate of transparency and accountability.
A scrutiny of the contents of the mentioned issuances shows that they do not, in any manner, violate the fiscal autonomy of LGUs. To be clear, “[f]iscal autonomy means that local governments have the power to create their own sources of revenue in addition to their equitable share in the national taxes released by the national government, as well as the power to allocate their resources in accordance with their own priorities. It extends to the preparation of their budgets, and local officials in turn have to work within the constraints thereof.”59
It is inconceivable, however, how the publication of budgets, expenditures, contracts and loans and procurement plans of LGUs required in the assailed issuances could have infringed on the local fiscal autonomy of LGUs. Firstly, the issuances do not interfere with the discretion of the LGUs in the specification of their priority projects and the allocation of their budgets. The posting requirements are mere transparency measures which do not at all hurt the manner by which LGUs decide the utilization and allocation of their funds.
Secondly, it appears that even Section 352 of the LGC that is being invoked by the petitioners does not exclude the requirement for the posting of the additional documents stated in MC Nos. 2010-83 and 2011-08. Apparently, the mentioned provision requires the publication of “a summary of revenues collected and funds received, including the appropriations and disbursements of such funds.” The additional requirement for the posting of budgets, expenditures, contracts and loans, and procurement plans are well-within the contemplation of Section 352 of the LGC considering they are documents necessary for an accurate presentation of a summary of appropriations and disbursements that an LGU is required to publish.
Finally, the Court believes that the supervisory powers of the President are broad enough to embrace the power to require the publication of certain documents as a mechanism of transparency. In Pimentel, Jr. v. Hon. Aguirre,60 the Court reminded that local fiscal autonomy does not rule out any manner of national government intervention by way of supervision, in order to ensure that local programs, fiscal and otherwise, are consistent with national goals. The President, by constitutional fiat, is the head of the economic and planning agency of the government, primarily responsible for formulating and implementing continuing, coordinated and integrated social and economic policies, plans and programs for the entire country.61
Moreover, the Constitution, which was drafted after long years of dictatorship and abuse of power, is now replete with numerous provisions directing the adoption of measures to uphold transparency and accountability in government, with a view of protecting the nation from repeating its atrocious past. In particular, the Constitution commands the strict adherence to full disclosure of information on all matters relating to official transactions and those involving public interest. Pertinently, Section 28, Article II and Section 7, Article III of the Constitution, provide:
Article II Declaration of Principles and State Policies Principles
Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
Article III
9
Bill of Rights
Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
In the instant case, the assailed issuances were issued pursuant to the policy of promoting good governance through transparency, accountability and participation. The action of the respondent is certainly within the constitutional bounds of his power as alter ego of the President.
It is needless to say that the power to govern is a delegated authority from the people who hailed the public official to office through the democratic process of election. His stay in office remains a privilege which may be withdrawn by the people should he betray his oath of office. Thus, he must not frown upon accountability checks which aim to show how well he is performing his delegated power. For, it is through these mechanisms of transparency and accountability that he is able to prove to his constituency that he is worthy of the continued privilege.
WHEREFORE, in view of the foregoing considerations, the petition is DISMISSED for lack of merit.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Del Castillo, Villarama, Jr., Perez, Mendoza, Perlas-Bernabe, and Leonen, JJ., concur.Brion, J., on leave.Bersamin, and Jardeleza, JJ. on official leave.
After we promulgated our decision in this case on March 7, 2007, Chevron Philippines Inc. (Chevron), Petron Corporation (Petron) and Pilipinas Shell Petroleum Corporation (Shell) (collectively, the oil companies) and the Republic of
11
the Philippines, represented by the Department of Energy (DOE), filed their respective motions for leave to intervene and for reconsideration of the decision.
Chevron[1] is engaged in the business of importing, distributing and marketing of petroleum products in the Philippines while Shell and Petron are engaged in the business of manufacturing, refining and likewise importing, distributing and marketing of petroleum products in the Philippines.[2] The DOE is a governmental agency created under Republic Act (RA) No. 7638[3] and tasked to prepare, integrate, coordinate, supervise and control all plans, programs, projects and activities of the government relative to energy exploration, development, utilization, distribution and conservation.[4]
The facts are restated briefly as follows:
Petitioners Social Justice Society, Vladimir Alarique T. Cabigao and Bonifacio S. Tumbokon, in an original petition for mandamus under Rule 65 of the Rules of Court, sought to compel respondent Hon. Jose L. Atienza, Jr., then mayor of the City of Manila, to enforce Ordinance No. 8027. This ordinance was enacted by the Sangguniang Panlungsod of Manila on November 20, 2001,[5] approved by respondent Mayor on November 28, 2001,[6] and became effective on December 28, 2001 after publication.[7] Sections 1 and 3 thereof state:
SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety, and general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the land use of [those] portions of land bounded by the Pasig River in the north, PNR Railroad Track in the east, Beata St. in the south, Palumpong St. in the southwest, and Estero de Pandacan in the west[,] PNR Railroad in the northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon in the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from Industrial II to Commercial I.
xxx xxx xxx
SEC. 3. Owners or operators of industries and other businesses, the operation of which are no longer permitted under Section 1 hereof, are hereby given a period of
six (6) months from the date of effectivity of this Ordinance within which to cease and desist from the operation of businesses which are hereby in consequence, disallowed.
Ordinance No. 8027 reclassified the area described therein from industrial to commercial and directed the owners and operators of businesses disallowed under the reclassification to cease and desist from operating their businesses within six months from the date of effectivity of the ordinance. Among the businesses situated in the area are the so-called Pandacan Terminals of the oil companies.
On June 26, 2002, the City of Manila and the Department of Energy (DOE) entered into a memorandum of understanding (MOU)[8] with the oil companies. They agreed that the scaling down of the Pandacan Terminals [was] the most viable and practicable option. The Sangguniang Panlungsod ratified the MOU in Resolution No. 97.[9] In the same resolution, the Sanggunian declared that the MOU was effective only for a period of six months starting July 25, 2002.[10] Thereafter, on January 30, 2003, the Sanggunian adopted Resolution No. 13[11] extending the validity of Resolution No. 97 to April 30, 2003 and authorizing the mayor of Manila to issue special business permits to the oil companies.[12]
This was the factual backdrop presented to the Court which became the basis of our March 7, 2007 decision. We ruled that respondent had the ministerial duty under the Local Government Code (LGC) to enforce all laws and ordinances relative to the governance of the city,[13] including Ordinance No. 8027. We also held that we need not resolve the issue of whether the MOU entered into by respondent with the oil companies and the subsequent resolutions passed by the Sanggunian could amend or repeal Ordinance No. 8027 since the resolutions which ratified the MOU and made it binding on the City of Manila expressly gave it full force and effect only until April 30, 2003. We concluded that there was nothing that legally hindered respondent from enforcing Ordinance No. 8027.
After we rendered our decision on March 7, 2007, the oil companies and DOE sought to intervene and filed motions for reconsideration in intervention on March 12, 2007 and March 21, 2007 respectively. On April 11, 2007, we conducted the oral arguments in Baguio City to hear petitioners, respondent and movants-intervenors oil companies and DOE.
12
The oil companies called our attention to the fact that on April 25, 2003, Chevron had filed a complaint against respondent and the City of Manila in the Regional Trial Court (RTC) of Manila, Branch 39, for the annulment of Ordinance No. 8027 with application for writs of preliminary prohibitory injunction and preliminary mandatory injunction.[14] The case was docketed as civil case no. 03-106377. On the same day, Shell filed a petition for prohibition and mandamus likewise assailing the validity of Ordinance No. 8027 and with application for writs of preliminary prohibitory injunction and preliminary mandatory injunction.[15] This was docketed as civil case no. 03-106380. Later on, these two cases were consolidated and the RTC of Manila, Branch 39 issued an order dated May 19, 2003 granting the applications for writs of preliminary prohibitory injunction and preliminary mandatory injunction:
WHEREFORE, upon the filing of a total bond of TWO MILLION (Php 2,000,000.00) PESOS, let a Writ of Preliminary Prohibitory Injunction be issued ordering [respondent] and the City of Manila, their officers, agents, representatives, successors, and any other persons assisting or acting in their behalf, during the pendency of the case, to REFRAIN from taking steps to enforce Ordinance No. 8027, and let a Writ of Preliminary Mandatory Injunction be issued ordering [respondent] to issue [Chevron and Shell] the necessary Business Permits to operate at the Pandacan Terminal.[16]
Petron likewise filed its own petition in the RTC of Manila, Branch 42, also attacking the validity of Ordinance No. 8027 with prayer for the issuance of a writ of preliminary injunction and/or temporary restraining order (TRO). This was docketed as civil case no. 03-106379. In an order dated August 4, 2004, the RTC enjoined the parties to maintain the status quo.[17]
Thereafter, in 2006, the city council of Manila enacted Ordinance No. 8119, also known as the Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006.[18] This was approved by respondent on June 16, 2006.[19]
Aggrieved anew, Chevron and Shell filed a complaint in the RTC of Manila, Branch 20, asking for the nullification of Ordinance No. 8119.[20] This was docketed as civil case no. 06-115334. Petron filed its own complaint on the same causes of action
in the RTC of Manila, Branch 41.[21] This was docketed as civil case no. 07-116700.[22] The court issued a TRO in favor of Petron, enjoining the City of Manila and respondent from enforcing Ordinance No. 8119.[23]
Meanwhile, in civil case no. 03-106379, the parties filed a joint motion to withdraw complaint and counterclaim on February 20, 2007.[24] In an order dated April 23, 2007, the joint motion was granted and all the claims and counterclaims of the parties were withdrawn.[25]
Given these additional pieces of information, the following were submitted as issues for our resolution:
1. whether movants-intervenors should be allowed to intervene in this case;[26]
2. whether the following are impediments to the execution of our March 7, 2007 decision:
(a) Ordinance No. 8119, the enactment and existence of which were not previously brought by the parties to the attention of the Court and
(b) writs of preliminary prohibitory injunction and preliminary mandatory injunction and status quo order issued by the RTC of Manila, Branches 39 and 42 and
3. whether the implementation of Ordinance No. 8027 will unduly encroach upon the DOEs powers and functions involving energy resources.
During the oral arguments, the parties submitted to this Courts power to rule on the constitutionality and validity of Ordinance No. 8027 despite the pendency of consolidated cases involving this issue in the RTC.[27] The importance of settling this controversy as fully and as expeditiously as possible was emphasized, considering its impact on public interest. Thus, we will also dispose of this issue here. The parties were after all given ample opportunity to present and argue their respective positions. By so doing, we will do away with the delays concomitant with litigation and completely adjudicate an issue which will most likely reach us anyway as the final arbiter of all legal disputes.
13
Before we resolve these issues, a brief review of the history of the Pandacan Terminals is called for to put our discussion in the proper context.
History Of The Pandacan
Oil Terminals
Pandacan (one of the districts of the City of Manila) is situated along the banks of the Pasig river. At the turn of the twentieth century, Pandacan was unofficially designated as the industrial center of Manila. The area, then largely uninhabited, was ideal for various emerging industries as the nearby river facilitated the transportation of goods and products. In the 1920s, it was classified as an industrial zone.[28] Among its early industrial settlers were the oil companies. Shell established its installation there on January 30, 1914.[29] Caltex (now Chevron) followed suit in 1917 when the company began marketing its products in the country.[30] In 1922, it built a warehouse depot which was later converted into a key distribution terminal.[31] The corporate presence in the Philippines of Esso (Petrons predecessor) became more keenly felt when it won a concession to build and operate a refinery in Bataan in 1957.[32] It then went on to operate a state-of-the-art lube oil blending plant in the Pandacan Terminals where it manufactures lubes and greases.[33]
On December 8, 1941, the Second World War reached the shores of the Philippine Islands. Although Manila was declared an open city, the Americans had no interest in welcoming the Japanese. In fact, in their zealous attempt to fend off the Japanese Imperial Army, the United States Army took control of the Pandacan Terminals and hastily made plans to destroy the storage facilities to deprive the advancing Japanese Army of a valuable logistics weapon.[34] The U.S. Army burned unused petroleum, causing a frightening conflagration. Historian Nick Joaquin recounted the events as follows:
After the USAFFE evacuated the City late in December 1941, all army fuel storage dumps were set on fire. The flames spread, enveloping the City in smoke, setting even the rivers ablaze, endangering bridges and all riverside buildings. For one week longer, the open city blazeda cloud of smoke by day, a pillar of fire by night.[35]
The fire consequently destroyed the Pandacan Terminals and rendered its network of depots and service stations inoperative.[36]
After the war, the oil depots were reconstructed. Pandacan changed as Manila rebuilt itself. The three major oil companies resumed the operation of their depots.[37] But the district was no longer a sparsely populated industrial zone; it had evolved into a bustling, hodgepodge community. Today, Pandacan has become a densely populated area inhabited by about 84,000 people, majority of whom are urban poor who call it home.[38] Aside from numerous industrial installations, there are also small businesses, churches, restaurants, schools, daycare centers and residences situated there.[39] Malacaang Palace, the official residence of the President of the Philippines and the seat of governmental power, is just two kilometers away.[40] There is a private school near the Petron depot. Along the walls of the Shell facility are shanties of informal settlers.[41] More than 15,000 students are enrolled in elementary and high schools situated near these facilities.[42] A university with a student population of about 25,000 is located directly across the depot on the banks of the Pasig river.[43]
The 36-hectare Pandacan Terminals house the oil companies distribution terminals and depot facilities.[44] The refineries of Chevron and Shell in Tabangao and Bauan, both in Batangas, respectively, are connected to the Pandacan Terminals through a 114-kilometer[45] underground pipeline system.[46] Petrons refinery in Limay, Bataan, on the other hand, also services the depot.[47] The terminals store fuel and other petroleum products and supply 95% of the fuel requirements of Metro Manila,[48] 50% of Luzons consumption and 35% nationwide.[49] Fuel can also be transported through barges along the Pasig river or tank trucks via the South Luzon Expressway.
We now discuss the first issue: whether movants-intervenors should be allowed to intervene in this case.
14
Intervention Of The Oil Companies And The DOE Should Be Allowed In The Interest of Justice
Intervention is a remedy by which a third party, not originally impleaded in the proceedings, becomes a litigant therein to enable him, her or it to protect or preserve a right or interest which may be affected by such proceedings.[50] The pertinent rules are Sections 1 and 2, Rule 19 of the Rules of Court:
SEC. 1. Who may intervene. A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors rights may be fully protected in a separate proceeding.
SEC. 2. Time to intervene. The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties.
Thus, the following are the requisites for intervention of a non-party:
(1) Legal interest
(a) in the matter in controversy; or
(b) in the success of either of the parties; or
I against both parties; or
(d) person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof;
(2) Intervention will not unduly delay or prejudice the adjudication of rights of original parties;
(3) Intervenors rights may not be fully protected in a separate proceeding[51] and
(g)The motion to intervene may be filed at any time before rendition of judgment by the trial court.
For both the oil companies and DOE, the last requirement is definitely absent. As a rule, intervention is allowed before rendition of judgment as Section 2, Rule 19 expressly provides. Both filed their separate motions after our decision was promulgated. In Republic of the Philippines v. Gingoyon,[52] a recently decided case which was also an original action filed in this Court, we declared that the appropriate time to file the motions-in-intervention was before and not after resolution of the case.[53]
The Court, however, has recognized exceptions to Section 2, Rule 19 in the interest of substantial justice:
The rule on intervention, like all other rules of procedure, is intended to make the powers of the Court fully and completely available for justice. It is aimed to facilitate a comprehensive adjudication of rival claims overriding technicalities on the timeliness of the filing thereof.[54]
15
The oil companies assert that they have a legal interest in this case because the implementation of Ordinance No. 8027 will directly affect their business and property rights.[55]
[T]he interest which entitles a person to intervene in a suit between other parties must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by direct legal operation and effect of the judgment. Otherwise, if persons not parties to the action were allowed to intervene, proceedings would become unnecessarily complicated, expensive and interminable. And this would be against the policy of the law. The words an interest in the subject means a direct interest in the cause of action as pleaded, one that would put the intervenor in a legal position to litigate a fact alleged in the complaint without the establishment of which plaintiff could not recover.[56]
We agree that the oil companies have a direct and immediate interest in the implementation of Ordinance No. 8027. Their claim is that they will need to spend billions of pesos if they are compelled to relocate their oil depots out of Manila. Considering that they admitted knowing about this case from the time of its filing on December 4, 2002, they should have intervened long before our March 7, 2007 decision to protect their interests. But they did not.[57] Neither did they offer any worthy explanation to justify their late intervention.
Be that as it may, although their motion for intervention was not filed on time, we will allow it because they raised and presented novel issues and arguments that were not considered by the Court in its March 7, 2007 decision. After all, the allowance or disallowance of a motion to intervene is addressed to the sound discretion of the court before which the case is pending.[58] Considering the compelling reasons favoring intervention, we do not think that this will unduly delay or prejudice the adjudication of rights of the original parties. In fact, it will be expedited since their intervention will enable us to rule on the constitutionality of Ordinance No. 8027 instead of waiting for the RTCs decision.
The DOE, on the other hand, alleges that its interest in this case is also direct and immediate as Ordinance No. 8027 encroaches upon its exclusive and national authority over matters affecting the oil industry. It seeks to intervene in order to represent the interests of the members of the public who stand to suffer if the
Pandacan Terminals operations are discontinued. We will tackle the issue of the alleged encroachment into DOEs domain later on. Suffice it to say at this point that, for the purpose of hearing all sides and considering the transcendental importance of this case, we will also allow DOEs intervention.
The Injunctive Writs Are Not Impediments To The Enforcement Of Ordinance No. 8027
Under Rule 65, Section 3[59] of the Rules of Court, a petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station. According to the oil companies, respondent did not unlawfully fail or neglect to enforce Ordinance No. 8027 because he was lawfully prevented from doing so by virtue of the injunctive writs and status quo order issued by the RTC of Manila, Branches 39 and 42.
First, we note that while Chevron and Shell still have in their favor the writs of preliminary injunction and preliminary mandatory injunction, the status quo order in favor of Petron is no longer in effect since the court granted the joint motion of the parties to withdraw the complaint and counterclaim.[60]
Second, the original parties failed to inform the Court about these injunctive writs. Respondent (who was also impleaded as a party in the RTC cases) defends himself by saying that he informed the court of the pendency of the civil cases and that a TRO was issued by the RTC in the consolidated cases filed by Chevron and Shell. It is true that had the oil companies only intervened much earlier, the Court would not have been left in the dark about these facts. Nevertheless, respondent should have updated the Court, by way of manifestation, on such a relevant matter.
16
In his memorandum, respondent mentioned the issuance of a TRO. Under Section 5 of Rule 58 of the Rules of Court, a TRO issued by the RTC is effective only for a period of 20 days. This is why, in our March 7, 2007 decision, we presumed with certainty that this had already lapsed.[61] Respondent also mentioned the grant of injunctive writs in his rejoinder which the Court, however, expunged for being a prohibited pleading. The parties and their counsels were clearly remiss in their duties to this Court.
In resolving controversies, courts can only consider facts and issues pleaded by the parties.[62] Courts, as well as magistrates presiding over them are not omniscient. They can only act on the facts and issues presented before them in appropriate pleadings. They may not even substitute their own personal knowledge for evidence. Nor may they take notice of matters except those expressly provided as subjects of mandatory judicial notice.
We now proceed to the issue of whether the injunctive writs are legal impediments to the enforcement of Ordinance No. 8027.
Section 3, Rule 58 of the Rules of Court enumerates the grounds for the issuance of a writ of preliminary injunction:
SEC. 3. Grounds for issuance of preliminary injunction. ― A preliminary injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;
(b) That the commission, continuance or nonperformance of the act or acts complained of during the litigation would probably work injustice to the applicant; or
(g) IThat a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.
There are two requisites for the issuance of a preliminary injunction: (1) the right to be protected exists prima facie and (2) the acts sought to be enjoined are violative of that right. It must be proven that the violation sought to be prevented will cause an irreparable injustice.
The act sought to be restrained here was the enforcement of Ordinance No. 8027. It is a settled rule that an ordinance enjoys the presumption of validity and, as such, cannot be restrained by injunction.[63] Nevertheless, when the validity of the ordinance is assailed, the courts are not precluded from issuing an injunctive writ against its enforcement. However, we have declared that the issuance of said writ is proper only when:
... the petitioner assailing the ordinance has made out a case of unconstitutionality strong enough to overcome, in the mind of the judge, the presumption of validity, in addition to a showing of a clear legal right to the remedy sought....[64] (Emphasis supplied)
Judge Reynaldo G. Ros, in his order dated May 19, 2003, stated his basis for issuing the injunctive writs:
17
The Court, in resolving whether or not a Writ of Preliminary Injunction or Preliminary Mandatory Injunction should be issued, is guided by the following requirements: (1) a clear legal right of the complainant; (2) a violation of that right; and (3) a permanent and urgent necessity for the Writ to prevent serious damage. The Court believes that these requisites are present in these cases.
There is no doubt that the plaintiff/petitioners have been legitimately operating their business in the Pandacan Terminal for many years and they have made substantial capital investment therein. Every year they were issued Business Permits by the City of Manila. Its operations have not been declared illegal or contrary to law or morals. In fact, because of its vital importance to the national economy, it was included in the Investment Priorities Plan as mandated under the Downstream Oil Industry Deregulation Act of 1988 (R.A. 8479). As a lawful business, the plaintiff/petitioners have a right, therefore, to continue their operation in the Pandacan Terminal and the right to protect their investments. This is a clear and unmistakable right of the plaintiff/petitioners.
The enactment, therefore, of City Ordinance No. 8027 passed by the City Council of Manila reclassifying the area where the Pandacan Terminal is located from Industrial II to Commercial I and requiring the plaintiff/petitioners to cease and desist from the operation of their business has certainly violated the rights of the plaintiff/petitioners to continue their legitimate business in the Pandacan Terminal and deprived them of their huge investments they put up therein. Thus, before the Court, therefore, determines whether the Ordinance in question is valid or not, a Writ of Preliminary Injunction and a Writ of Mandatory Injunction be issued to prevent serious and irreparable damage to plaintiff/petitioners.[65]
Nowhere in the judges discussion can we see that, in addition to a showing of a clear legal right of Chevron and Shell to the remedy sought, he was convinced that they had made out a case of unconstitutionality or invalidity strong enough to overcome the presumption of validity of the ordinance. Statutes and ordinances are presumed valid unless and until the courts declare the contrary in clear and unequivocal terms.[66] The mere fact that the ordinance is alleged to be unconstitutional or invalid will not entitle a party to have its enforcement enjoined.[67] The presumption is all in favor of validity. The reason for this is obvious:
The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well being of the people . . . 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.[68]
X x x
...[Courts] accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary[,] in the determination of actual cases and controversies[,] must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.[69]
The oil companies argue that this presumption must be set aside when the invalidity or unreasonableness appears on the face of the ordinance itself.[70] We see no reason to set aside the presumption. The ordinance, on its face, does not at all appear to be unconstitutional. It reclassified the subject area from industrial to commercial. Prima facie, this power is within the power of municipal corporations:
The power of municipal corporations to divide their territory into industrial, commercial and residential zones is recognized in almost all jurisdictions inasmuch as it is derived from the police power itself and is exercised for the protection and benefit of their inhabitants.[71]
X x x
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There can be no doubt that the City of Manila has the power to divide its territory into residential and industrial zones, and to prescribe that offensive and unwholesome trades and occupations are to be established exclusively in the latter zone.
Xxx xxx xxx
Likewise, it cannot be denied that the City of Manila has the authority, derived from the police power, of forbidding the appellant to continue the manufacture of toyo in the zone where it is now situated, which has been declared residential....[72]
Courts will not invalidate an ordinance unless it clearly appears that it is unconstitutional. There is no such showing here. Therefore, the injunctive writs issued in the Manila RTCs May 19, 2003 order had no leg to stand on.
We are aware that the issuance of these injunctive writs is not being assailed as tainted with grave abuse of discretion. However, we are confronted with the question of whether these writs issued by a lower court are impediments to the enforcement of Ordinance No. 8027 (which is the subject of the mandamus petition). As already discussed, we rule in the negative.
Ordinance No. 8027 Was Not Superseded By Ordinance No. 8119
The March 7, 2007 decision did not take into consideration the passage of Ordinance No. 8119 entitled An Ordinance Adopting the Manila Comprehensive Land Use Plan and Zoning Regulations of 2006 and Providing for the Administration, Enforcement and Amendment thereto which was approved by respondent on June 16, 2006. The simple reason was that the Court was never informed about this ordinance.
While courts are required to take judicial notice of the laws enacted by Congress, the rule with respect to local ordinances is different. Ordinances are not included in the enumeration of matters covered by mandatory judicial notice under Section 1, Rule 129 of the Rules of Court.[73]
Although, Section 50 of RA 409[74] provides that:
SEC. 50 Judicial notice of ordinances. - All courts sitting in the city shall take judicial notice of the ordinances passed by the [Sangguniang Panglungsod].
This cannot be taken to mean that this Court, since it has its seat in the City of Manila, should have taken steps to procure a copy of the ordinance on its own, relieving the party of any duty to inform the Court about it.
Even where there is a statute that requires a court to take judicial notice of municipal ordinances, a court is not required to take judicial notice of ordinances that are not before it and to which it does not have access. The party asking the court to take judicial notice is obligated to supply the court with the full text of the rules the party desires it to have notice of.[75] Counsel should take the initiative in requesting that a trial court take judicial notice of an ordinance even where a statute requires courts to take judicial notice of local ordinances.[76]
The intent of a statute requiring a court to take judicial notice of a local ordinance is to remove any discretion a court might have in determining whether or not to take notice of an ordinance. Such a statute does not direct the court to act on its own in obtaining evidence for the record and a party must make the ordinance available to the court for it to take notice.[77]
In its defense, respondent claimed that he did not inform the Court about the enactment of Ordinance No. 8119 because he believed that it was different from Ordinance No. 8027 and that the two were not inconsistent with each other.[78]
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In the same way that we deem the intervenors late intervention in this case unjustified, we find the failure of respondent, who was an original party here, inexcusable.
The Rule On Judicial Admissions Is Not Applicable Against Respondent
The oil companies assert that respondent judicially admitted that Ordinance No. 8027 was repealed by Ordinance No. 8119 in civil case no. 03-106379 (where Petron assailed the constitutionality of Ordinance No. 8027) when the parties in their joint motion to withdraw complaint and counterclaim stated that the issue ...has been rendered moot and academic by virtue of the passage of [Ordinance No. 8119].[79] They contend that such admission worked as an estoppel against the respondent.
Respondent countered that this stipulation simply meant that Petron was recognizing the validity and legality of Ordinance No. 8027 and that it had conceded the issue of said ordinances constitutionality, opting instead to question the validity of Ordinance No. 8119.[80] The oil companies deny this and further argue that respondent, in his answer in civil case no. 06-115334 (where Chevron and Shell are asking for the nullification of Ordinance No. 8119), expressly stated that Ordinance No. 8119 replaced Ordinance No. 8027:[81]
... Under Ordinance No. 8027, businesses whose uses are not in accord with the reclassification were given six months to cease [their] operation. Ordinance No. 8119, which in effect, replaced Ordinance [No.] 8027, merely took note of the time frame provided for in Ordinance No. 8119.... Ordinance No. 8119 thus provided for an even longer term, that is[,] seven years;[82] (Emphasis supplied)
Rule 129, Section 4 of the Rules of Court provides:
Section 4. Judicial admissions. ― An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. (Emphasis supplied)
While it is true that a party making a judicial admission cannot subsequently take a position contrary to or inconsistent with what was pleaded,[83] the aforestated rule is not applicable here. Respondent made the statements regarding the ordinances in civil case nos. 03-106379 and 06-115334 which are not the same as this case before us.[84] To constitute a judicial admission, the admission must be made in the same case in which it is offered.
Hence, respondent is not estopped from claiming that Ordinance No. 8119 did not supersede Ordinance No. 8027. On the contrary, it is the oil companies which should be considered estopped. They rely on the argument that Ordinance No. 8119 superseded Ordinance No. 8027 but, at the same time, also impugn its (8119s) validity. We frown on the adoption of inconsistent positions and distrust any attempt at clever positioning under one or the other on the basis of what appears advantageous at the moment. Parties cannot take vacillating or contrary positions regarding the validity of a statute[85] or ordinance. Nonetheless, we will look into the merits of the argument of implied repeal.
Ordinance No. 8119 Did Not Impliedly Repeal Ordinance No. 8027
Both the oil companies and DOE argue that Ordinance No. 8119 repealed Ordinance No. 8027. They assert that although there was no express repeal[86] of Ordinance No. 8027, Ordinance No. 8119 impliedly repealed it.
According to the oil companies, Ordinance No. 8119 reclassified the area covering the Pandacan Terminals to High Density Residential/Mixed Use Zone (R-3/MXD)[87] whereas Ordinance No. 8027 reclassified the same area from Industrial II to Commercial I:
SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety, and general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the land use of [those] portions of land bounded by the Pasig River in the north, PNR Railroad Track in the east, Beata St. in the south, Palumpong St. in the southwest, and Estero de Pancacan in the west[,] PNR Railroad in the northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in the
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southeast and Dr. M.L. Carreon in the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from Industrial II to Commercial I. (Emphasis supplied)
Moreover, Ordinance No. 8119 provides for a phase-out of seven years:
SEC. 72. Existing Non-Conforming Uses and Buildings. - The lawful use of any building, structure or land at the time of the adoption of this Ordinance may be continued, although such use does not conform with the provision of the Ordinance, provided:
xxx xxx xxx
(g) In case the non-conforming use is an industrial use:
xxx xxx xxx
d. The land use classified as non-conforming shall program the phase-out and relocation of the non-conforming use within seven (7) years from the date of effectivity of this Ordinance. (Emphasis supplied)
This is opposed to Ordinance No. 8027 which compels affected entities to vacate the area within six months from the effectivity of the ordinance:
SEC. 3. Owners or operators of industries and other businesses, the operation of which are no longer permitted under Section 1 hereof, are hereby given a period of six (6) months from the date of effectivity of this Ordinance within which to cease and desist from the operation of businesses which are hereby in consequence, disallowed.
Ordinance No. 8119 also designated the Pandacan oil depot area as a Planned Unit Development/Overlay Zone (O-PUD):
SEC. 23. Use Regulations in Planned Unit Development/Overlay Zone (O-PUD). O-PUD Zones are identified specific sites in the City of Manila wherein the project site is comprehensively planned as an entity via unitary site plan which permits flexibility in planning/ design, building siting, complementarily of building types and land uses, usable open spaces and the preservation of significant natural land features, pursuant to regulations specified for each particular PUD. Enumerated below are identified PUD:
xxx xxx xxx
6. Pandacan Oil Depot Area
xxx xxx xxx
Enumerated below are the allowable uses:
1. all uses allowed in all zones where it is located
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2. the [Land Use Intensity Control (LUIC)] under which zones are located shall, in all instances be complied with
3. the validity of the prescribed LUIC shall only be [superseded] by the development controls and regulations specified for each PUD as provided for each PUD as provided for by the masterplan of respective PUDs.[88] (Emphasis supplied)
Respondent claims that in passing Ordinance No. 8119, the Sanggunian did not intend to repeal Ordinance No. 8027 but meant instead to carry over 8027s provisions to 8119 for the purpose of making Ordinance No. 8027 applicable to the oil companies even after the passage of Ordinance No. 8119.[89] He quotes an excerpt from the minutes of the July 27, 2004 session of the Sanggunian during the first reading of Ordinance No. 8119:
Member GARCIA: Your Honor, iyong patungkol po roon sa oil depot doon sa amin sa Sixth District sa Pandacan, wala pong nakalagay eith sa ordinansa rito na taliwas o kakaiba roon sa ordinansang ipinasa noong nakaraang Konseho, iyong Ordinance No. 8027. So kung ano po ang nandirito sa ordinansa na ipinasa ninyo last time, iyon lang po ang ni-lift eithe at inilagay eith. At eith eith ordinansang iyong naipasa ng huling Konseho, niri-classify [ninyo] from Industrial II to Commercial C-1 ang area ng Pandacan kung nasaan ang oil depot. So ini-lift lang po [eithe] iyong definition, density, at saka po yon pong ng noong ordinansa ninyo na siya eith naming inilagay eith, iniba lang po naming iyong title. So wala po kaming binago na taliwas o nailagay na taliwas doon sa ordinansang ipinasa ninyo, ni-lift lang po [eithe] from Ordinance No. 8027.[90] (Emphasis supplied)
We agree with respondent.
Repeal by implication proceeds on the premise that where a statute of later date clearly reveals the intention of the legislature to abrogate a prior act on the subject, that intention must be given effect.[91]
There are two kinds of implied repeal. The first is: where the provisions in the two acts on the same subject matter are irreconcilably contradictory, the latter act, to the extent of the conflict, constitutes an implied repeal of the earlier one.[92] The second is: if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate to repeal the earlier law.[93] The oil companies argue that the situation here falls under the first category.
Implied repeals are not favored and will not be so declared unless the intent of the legislators is manifest.[94] As statutes and ordinances are presumed to be passed only after careful deliberation and with knowledge of all existing ones on the subject, it follows that, in passing a law, the legislature did not intend to interfere with or abrogate a former law relating to the same subject matter.[95] If the intent to repeal is not clear, the later act should be construed as a continuation of, and not a substitute for, the earlier act.[96]
These standards are deeply enshrined in our jurisprudence. We disagree that, in enacting Ordinance No. 8119, there was any indication of the legislative purpose to repeal Ordinance No. 8027.[97] The excerpt quoted above is proof that there was never such an intent. While it is true that both ordinances relate to the same subject matter, i.e. classification of the land use of the area where Pandacan oil depot is located, if there is no intent to repeal the earlier enactment, every effort at reasonable construction must be made to reconcile the ordinances so that both can be given effect:
The fact that a later enactment may relate to the same subject matter as that of an earlier statute is not of itself sufficient to cause an implied repeal of the prior act, since the new statute may merely be cumulative or a continuation of the old one. What is necessary is a manifest indication of legislative purpose to repeal.[98]
For the first kind of implied repeal, there must be an irreconcilable conflict between the two ordinances. There is no conflict between the two ordinances. Ordinance No. 8027 reclassified the Pandacan area from Industrial II to Commercial I. Ordinance No. 8119, in Section 23, designated it as a Planned Unit Development/Overlay Zone (O-PUD). In its Annex C which defined the zone boundaries,[99] the Pandacan area was shown to be within the High Density Residential/Mixed Use Zone (R-3/MXD). These zone classifications in Ordinance No. 8119 are not inconsistent with the reclassification of the Pandacan area from Industrial to Commercial in Ordinance No. 8027. The O-PUD classification merely made Pandacan a project site ... comprehensively planned as an entity via unitary site plan which permits flexibility in planning/design, building siting, complementarity of building types and land uses,
22
usable open spaces and the preservation of significant natural land features....[100] Its classification as R-3/MXD means that it should be used primarily for high-rise housing/dwelling purposes and limited complementary/supplementary trade, services and business activities.[101] There is no conflict since both ordinances actually have a common objective, i.e., to shift the zoning classification from industrial to commercial (Ordinance No. 8027) or mixed residential/commercial (Ordinance No. 8119).
Moreover, it is a well-settled rule in statutory construction that a subsequent general law does not repeal a prior special law on the same subject unless it clearly appears that the legislature has intended by the latter general act to modify or repeal the earlier special law. Generalia specialibus non derogant (a general law does not nullify a specific or special law).[102] This is so even if the provisions of the general law are sufficiently comprehensive to include what was set forth in the special act.[103] The special act and the general law must stand together, one as the law of the particular subject and the other as the law of general application.[104] The special law must be taken as intended to constitute an exception to, or a qualification of, the general act or provision.[105]
The reason for this is that the legislature, in passing a law of special character, considers and makes special provisions for the particular circumstances dealt with by the special law. This being so, the legislature, by adopting a general law containing provisions repugnant to those of the special law and without making any mention of its intention to amend or modify such special law, cannot be deemed to have intended an amendment, repeal or modification of the latter.[106]
Ordinance No. 8027 is a special law[107] since it deals specifically with a certain area described therein (the Pandacan oil depot area) whereas Ordinance No. 8119 can be considered a general law[108] as it covers the entire city of Manila.
The oil companies assert that even if Ordinance No. 8027 is a special law, the existence of an all-encompassing repealing clause in Ordinance No. 8119 evinces an intent on the part of the Sanggunian to repeal the earlier ordinance:
Sec. 84. Repealing Clause. All ordinances, rules, regulations in conflict with the provisions of this Ordinance are hereby repealed; PROVIDED, That the rights that are vested upon the effectivity of this Ordinance shall not be impaired.
They cited Hospicio de San Jose de Barili, Cebu City v. Department of Agrarian Reform:[109]
The presence of such general repealing clause in a later statute clearly indicates the legislative intent to repeal all prior inconsistent laws on the subject matter, whether the prior law is a general law or a special law... Without such a clause, a later general law will ordinarily not repeal a prior special law on the same subject. But with such clause contained in the subsequent general law, the prior special law will be deemed repealed, as the clause is a clear legislative intent to bring about that result.[110]
This ruling in not applicable here. The repealing clause of Ordinance No. 8119 cannot be taken to indicate the legislative intent to repeal all prior inconsistent laws on the subject matter, including Ordinance No. 8027, a special enactment, since the aforequoted minutes (an official record of the discussions in the Sanggunian) actually indicated the clear intent to preserve the provisions of Ordinance No. 8027.
To summarize, the conflict between the two ordinances is more apparent than real. The two ordinances can be reconciled. Ordinance No. 8027 is applicable to the area particularly described therein whereas Ordinance No. 8119 is applicable to the entire City of Manila.
Mandamus Lies To Compel Respondent Mayor To Enforce Ordinance No. 8027
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The oil companies insist that mandamus does not lie against respondent in consideration of the separation of powers of the executive and judiciary.[111] This argument is misplaced. Indeed,
[the] Courts will not interfere by mandamus proceedings with the legislative [or executive departments] of the government in the legitimate exercise of its powers, except to enforce mere ministerial acts required by law to be performed by some officer thereof.[112] (Emphasis Supplied)
since this is the function of a writ of mandamus, which is the power to compel the performance of an act which the law specifically enjoins as a duty resulting from office, trust or station.[113]
They also argue that petitioners had a plain, speedy and adequate remedy to compel respondent to enforce Ordinance No. 8027 which was to seek relief from the President of the Philippines through the Secretary of the Department of Interior and Local Government (DILG) by virtue of the Presidents power of supervision over local government units. Again, we disagree. A party need not go first to the DILG in order to compel the enforcement of an ordinance. This suggested process would be unreasonably long, tedious and consequently injurious to the interests of the local government unit (LGU) and its constituents whose welfare is sought to be protected. Besides, petitioners resort to an original action for mandamus before this Court is undeniably allowed by the Constitution.[114]
Ordinance No. 8027 Is Constitutional And Valid
Having ruled that there is no impediment to the enforcement of Ordinance No. 8027, we now proceed to make a definitive ruling on its constitutionality and validity.
The tests of a valid ordinance are well established. For an ordinance to be valid, it must not only be within the corporate powers of the LGU to enact and be passed according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy and (6) must not be unreasonable.[115]
The City of Manila Has The Power To Enact Ordinance No. 8027
Ordinance No. 8027 was passed by the Sangguniang Panlungsod of Manila in the exercise of its police power. Police power is the plenary power vested in the legislature to make statutes and ordinances to promote the health, morals, peace, education, good order or safety and general welfare of the people.[116] This power flows from the recognition that salus populi est suprema lex (the welfare of the people is the supreme law).[117] While police power rests primarily with the national legislature, such power may be delegated.[118] Section 16 of the LGC, known as the general welfare clause, encapsulates the delegated police power to local governments:[119]
Section 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.
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LGUs like the City of Manila exercise police power through their respective legislative bodies, in this case, the Sangguniang Panlungsod or the city council. Specifically, the Sanggunian can enact ordinances for the general welfare of the city:
Section. 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panglungsod, as the legislative branch of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code xxxx
This police power was also provided for in RA 409 or the Revised Charter of the City of Manila:
Section 18. Legislative powers. The [City Council] shall have the following legislative powers:
xxx xxx xxx
(g) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers and duties conferred by this chapter xxxx[120]
Specifically, the Sanggunian has the power to reclassify land within the jurisdiction of the city.[121]
The Enactment Of Ordinance No. 8027 Is A Legitimate Exercise Of Police Power
As with the State, local governments may be considered as having properly exercised their police power only if the following requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require its exercise and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. In short, there must be a concurrence of a lawful subject and a lawful method.[122]
Ordinance No. 8027 was enacted for the purpose of promoting sound urban planning, ensuring health, public safety and general welfare[123] of the residents of Manila. The Sanggunian was impelled to take measures to protect the residents of Manila from catastrophic devastation in case of a terrorist attack on the Pandacan Terminals. Towards this objective, the Sanggunian reclassified the area defined in the ordinance from industrial to commercial.
The following facts were found by the Committee on Housing, Resettlement and Urban Development of the City of Manila which recommended the approval of the ordinance:
(1) the depot facilities contained 313.5 million liters of highly flammable and highly volatile products which include petroleum gas, liquefied petroleum gas, aviation fuel, diesel, gasoline, kerosene and fuel oil among others;
(2) the depot is open to attack through land, water or air;
(3) it is situated in a densely populated place and near Malacaang Palace and
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(4) in case of an explosion or conflagration in the depot, the fire could spread to the neighboring communities.[124]
The ordinance was intended to safeguard the rights to life, security and safety of all the inhabitants of Manila and not just of a particular class.[125] The depot is perceived, rightly or wrongly, as a representation of western interests which means that it is a terrorist target. As long as it there is such a target in their midst, the residents of Manila are not safe. It therefore became necessary to remove these terminals to dissipate the threat. According to respondent:
Such a public need became apparent after the 9/11 incident which showed that what was perceived to be impossible to happen, to the most powerful country in the world at that, is actually possible. The destruction of property and the loss of thousands of lives on that fateful day became the impetus for a public need. In the aftermath of the 9/11 tragedy, the threats of terrorism continued [such] that it became imperative for governments to take measures to combat their effects.[126]
Wide discretion is vested on the legislative authority to determine not only what the interests of the public require but also what measures are necessary for the protection of such interests.[127] Clearly, the Sanggunian was in the best position to determine the needs of its constituents.
In the exercise of police power, property rights of individuals may be subjected to restraints and burdens in order to fulfill the objectives of the government.[128] Otherwise stated, the government may enact legislation that may interfere with personal liberty, property, lawful businesses and occupations to promote the general welfare.[129] However, the interference must be reasonable and not arbitrary. And to forestall arbitrariness, the methods or means used to protect public health, morals, safety or welfare must have a reasonable relation to the end in view.[130]
The means adopted by the Sanggunian was the enactment of a zoning ordinance which reclassified the area where the depot is situated from industrial to commercial. A zoning ordinance is defined as a local city or municipal legislation which logically arranges, prescribes, defines and apportions a given political subdivision into specific land uses as present and future projection of needs.[131] As a result of the zoning, the continued operation of the businesses of the oil companies in their present location will no longer be permitted. The power to establish zones for industrial, commercial and residential uses is derived from the police power itself and is exercised for the protection and benefit of the residents of a locality.[132] Consequently, the enactment of Ordinance No. 8027 is within the power of the Sangguniang Panlungsod of the City of Manila and any resulting burden on those affected cannot be said to be unjust:
There can be no doubt that the City of Manila has the power to divide its territory into residential and industrial zones, and to prescribe that offensive and unwholesome trades and occupations are to be established exclusively in the latter zone.
The benefits to be derived by cities adopting such regulations (zoning) may be summarized as follows: They attract a desirable and assure a permanent citizenship; they foster pride in and attachment to the city; they promote happiness and contentment; they stabilize the use and value of property and promote the peace, [tranquility], and good order of the city. We do not hesitate to say that the attainment of these objects affords a legitimate field for the exercise of the police power. He who owns property in such a district is not deprived of its use by such regulations. He may use it for the purposes to which the section in which it is located is dedicated. That he shall not be permitted to use it to the desecration of the community constitutes no unreasonable or permanent hardship and results in no unjust burden.
Xxx xxx xxx
The 14th Amendment protects the citizen in his right to engage in any lawful business, but it does not prevent legislation intended to regulate useful occupations which, because of their nature or location, may prove injurious or offensive to the public.[133]
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We entertain no doubt that Ordinance No. 8027 is a valid police power measure because there is a concurrence of lawful subject and lawful method.
Ordinance No. 8027 Is Not Unfair, Oppressive Or Confiscatory Which Amounts To Taking Without Compensation
According to the oil companies, Ordinance No. 8027 is unfair and oppressive as it does not only regulate but also absolutely prohibits them from conducting operations in the City of Manila. Respondent counters that this is not accurate since the ordinance merely prohibits the oil companies from operating their businesses in the Pandacan area.
Indeed, the ordinance expressly delineated in its title and in Section 1 what it pertained to. Therefore, the oil companies contention is not supported by the text of the ordinance. Respondent succinctly stated that:
The oil companies are not forbidden to do business in the City of Manila. They may still very well do so, except that their oil storage facilities are no longer allowed in the Pandacan area. Certainly, there are other places in the City of Manila where they can conduct this specific kind of business. Ordinance No. 8027 did not render the oil companies illegal. The assailed ordinance affects the oil companies business only in so far as the Pandacan area is concerned.[134]
The oil companies are not prohibited from doing business in other appropriate zones in Manila. The City of Manila merely exercised its power to regulate the businesses and industries in the zones it established:
As to the contention that the power to regulate does not include the power to prohibit, it will be seen that the ordinance copied above does not prohibit the installation of motor engines within the municipality of Cabanatuan but only within the zone therein fixed. If the municipal council of Cabanatuan is authorized to establish said zone, it is also authorized to provide what kind of engines may be installed therein. In banning the installation in said zone of all engines not excepted in the ordinance, the municipal council of Cabanatuan did no more than regulate their installation by means of zonification.[135]
The oil companies aver that the ordinance is unfair and oppressive because they have invested billions of pesos in the depot.[136] Its forced closure will result in huge losses in income and tremendous costs in constructing new facilities.
Their contention has no merit. In the exercise of police power, there is a limitation on or restriction of property interests to promote public welfare which involves no compensable taking. Compensation is necessary only when the states power of eminent domain is exercised. In eminent domain, property is appropriated and applied to some public purpose. Property condemned under the exercise of police power, on the other hand, is noxious or intended for a noxious or forbidden purpose and, consequently, is not compensable.[137] The restriction imposed to protect lives, public health and safety from danger is not a taking. It is merely the prohibition or abatement of a noxious use which interferes with paramount rights of the public.
Property has not only an individual function, insofar as it has to provide for the needs of the owner, but also a social function insofar as it has to provide for the needs of the other members of society.[138] The principle is this:
Police power proceeds from the principle that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the right of the community. Rights of property, like all other social and conventional rights, are subject to reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the
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legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient.[139]
In the regulation of the use of the property, nobody else acquires the use or interest therein, hence there is no compensable taking.[140] In this case, the properties of the oil companies and other businesses situated in the affected area remain theirs. Only their use is restricted although they can be applied to other profitable uses permitted in the commercial zone.
Ordinance No. 8027 Is Not
Partial And Discriminatory
The oil companies take the position that the ordinance has discriminated against and singled out the Pandacan Terminals despite the fact that the Pandacan area is congested with buildings and residences that do not comply with the National Building Code, Fire Code and Health and Sanitation Code.[141]
This issue should not detain us for long. An ordinance based on reasonable classification does not violate the constitutional guaranty of the equal protection of the law.[142] The requirements for a valid and reasonable classification are: (1) it must rest on substantial distinctions; (2) it must be germane to the purpose of the law; (3) it must not be limited to existing conditions only and (4) it must apply equally to all members of the same class.[143]
The law may treat and regulate one class differently from another class provided there are real and substantial differences to distinguish one class from another.[144] Here, there is a reasonable classification. We reiterate that what the ordinance seeks to prevent is a catastrophic devastation that will result from a terrorist attack. Unlike the depot, the surrounding community is not a high-value terrorist target. Any
damage caused by fire or explosion occurring in those areas would be nothing compared to the damage caused by a fire or explosion in the depot itself. Accordingly, there is a substantial distinction. The enactment of the ordinance which provides for the cessation of the operations of these terminals removes the threat they pose. Therefore it is germane to the purpose of the ordinance. The classification is not limited to the conditions existing when the ordinance was enacted but to future conditions as well. Finally, the ordinance is applicable to all businesses and industries in the area it delineated.
Ordinance No. 8027 is Not Inconsistent With RA 7638 And RA 8479
The oil companies and the DOE assert that Ordinance No. 8027 is unconstitutional because it contravenes RA 7638 (DOE Act of 1992)[145] and RA 8479 (Downstream Oil Industry Deregulation Law of 1998).[146] They argue that through RA 7638, the national legislature declared it a policy of the state to ensure a continuous, adequate, and economic supply of energy[147] and created the DOE to implement this policy. Thus, under Section 5 I, DOE is empowered to establish and administer programs for the exploration, transportation, marketing, distribution, utilization, conservation, stockpiling, and storage of energy resources. Considering that the petroleum products contained in the Pandacan Terminals are major and critical energy resources, they conclude that their administration, storage, distribution and transport are of national interest and fall under DOEs primary and exclusive jurisdiction.[148]
They further assert that the terminals are necessary for the delivery of immediate and adequate supply of oil to its recipients in the most economical way.[149] Local legislation such as Ordinance No. 8027 (which effectively calls for the removal of these terminals) allegedly frustrates the state policy of ensuring a continuous, adequate, and economic supply of energy expressed in RA 7638, a national law.[150] Likewise, the ordinance thwarts the determination of the DOE that the terminals operations should be merely scaled down and not discontinued.[151] They insist that this should not be allowed considering that it has a nationwide economic impact and affects public interest transcending the territorial jurisdiction of the City of Manila.[152]
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According to them, the DOEs supervision over the oil industry under RA 7638 was subsequently underscored by RA 8479, particularly in Section 7 thereof:
SECTION 7. Promotion of Fair Trade Practices. ― The Department of Trade and Industry (DTI) and DOE shall take all measures to promote fair trade and prevent cartelization, monopolies, combinations in restraint of trade, and any unfair competition in the Industry as defined in Article 186 of the Revised Penal Code, and Articles 168 and 169 of Republic Act No. 8293, otherwise known as the Intellectual Property Rights Law. The DOE shall continue to encourage certain practices in the Industry which serve the public interest and are intended to achieve efficiency and cost reduction, ensure continuous supply of petroleum products, and enhance environmental protection. These practices may include borrow-and-loan agreements, rationalized depot and manufacturing operations, hospitality agreements, joint tanker and pipeline utilization, and joint actions on oil spill control and fire prevention. (Emphasis supplied)
Respondent counters that DOEs regulatory power does not preclude LGUs from exercising their police power.[153]
Indeed, ordinances should not contravene existing statutes enacted by Congress. The rationale for this was clearly explained in Magtajas vs. Pryce Properties Corp., Inc.:[154]
The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State,
and the corporation could not prevent it. We know of no limitation on the right so far as to the corporation themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature.
This basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we here confirm that Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax, which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it.[155]
The question now is whether Ordinance No. 8027 contravenes RA 7638 and RA 8479. It does not.
Under Section 5 I of RA 7638, DOE was given the power to establish and administer programs for the exploration, transportation, marketing, distribution, utilization, conservation, stockpiling, and storage of energy resources. On the other hand, under Section 7 of RA 8749, the DOE shall continue to encourage certain practices in the Industry which serve the public interest and are intended to achieve efficiency and cost reduction, ensure continuous supply of petroleum products. Nothing in these statutes prohibits the City of Manila from enacting ordinances in the exercise of its police power.
The principle of local autonomy is enshrined in and zealously protected under the Constitution. In Article II, Section 25 thereof, the people expressly adopted the following policy:
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Section 25. The State shall ensure the autonomy of local governments.
An entire article (Article X) of the Constitution has been devoted to guaranteeing and promoting the autonomy of LGUs. The LGC was specially promulgated by Congress to ensure the autonomy of local governments as mandated by the Constitution:
Sec. 2. Declaration of Policy. ― (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the National Government to the local government units. (Emphasis supplied)
We do not see how the laws relied upon by the oil companies and DOE stripped the City of Manila of its power to enact ordinances in the exercise of its police power and to reclassify the land uses within its jurisdiction. To guide us, we shall make a brief survey of our decisions where the police power measure of the LGU clashed with national laws.
In Tan v. Perea,[156] the Court ruled that Ordinance No. 7 enacted by the municipality of Daanbantayan, Cebu allowing the operation of three cockpits was invalid for violating PD 449 (or the Cockfighting Law of 1974) which permitted only one cockpit per municipality.
In Batangas CATV, Inc. v. Court of Appeals,[157] the Sangguniang Panlungsod of Batangas City enacted Resolution No. 210 granting Batangas CATV, Inc. a permit to operate a cable television (CATV) system in Batangas City. The Court held that the LGU did not have the authority to grant franchises to operate a CATV system because it was the National Telecommunications Commission (NTC) that had the power under EO Nos. 205 and 436 to regulate CATV operations. EO 205 mandated the NTC to grant certificates of authority to CATV operators while EO 436 vested on the NTC the power to regulate and supervise the CATV industry.
In Lina, Jr. v. Pao,[158] we held that Kapasiyahan Bilang 508, Taon 1995 of the Sangguniang Panlalawigan of Laguna could not be used as justification to prohibit lotto in the municipality of San Pedro, Laguna because lotto was duly authorized by RA 1169, as amended by BP 42. This law granted a franchise to the Philippine Charity Sweepstakes Office and allowed it to operate lotteries.
In Magtajas v. Pryce Properties Corp., Inc.,[159] the Sangguniang Panlungsod of Cagayan de Oro City passed Ordinance Nos. 3353 and 3375-93 prohibiting the operation of casinos in the city. We ruled that these ordinances were void for contravening PD 1869 or the charter of the Philippine Amusements and Gaming Corporation which had the power to operate casinos.
The common dominator of all of these cases is that the national laws were clearly and expressly in conflict with the ordinances/resolutions of the LGUs. The inconsistencies were so patent that there was no room for doubt. This is not the case here.
The laws cited merely gave DOE general powers to establish and administer programs for the exploration, transportation, marketing, distribution, utilization, conservation, stockpiling, and storage of energy resources and to encourage certain practices in the [oil] industry which serve the public interest and are intended to achieve efficiency and cost reduction, ensure continuous supply of petroleum products. These powers can be exercised without emasculating the LGUs of the powers granted them. When these ambiguous powers are pitted against the unequivocal power of the LGU to enact police power and zoning ordinances for the general welfare of its constituents, it is not difficult to rule in favor of the latter.
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Considering that the powers of the DOE regarding the Pandacan Terminals are not categorical, the doubt must be resolved in favor of the City of Manila:
SECTION 5. Rules of Interpretation. ― In the interpretation of the provisions of this Code, the following rules shall apply:
(a) Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned;
xxx xxx xxx
(g) IThe general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community xxxx
The least we can do to ensure genuine and meaningful local autonomy is not to force an interpretation that negates powers explicitly granted to local governments. To rule against the power of LGUs to reclassify areas within their jurisdiction will subvert the principle of local autonomy guaranteed by the Constitution.[160] As we have noted in earlier decisions, our national officials should not only comply with the constitutional provisions on local autonomy but should also appreciate the spirit and liberty upon which these provisions are based.[161]
The DOE Cannot Exercise The Power Of Control Over LGUs
Another reason that militates against the DOEs assertions is that Section 4 of Article X of the Constitution confines the Presidents power over LGUs to one of general supervision:
SECTION 4. The President of the Philippines shall exercise general supervision over local governments. Xxxx
Consequently, the Chief Executive or his or her alter egos, cannot exercise the power of control over them.[162] Control and supervision are distinguished as follows:
[Supervision] means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer ha[s] done in the performance of his duties and to substitute the judgment of the former for that of the latter.[163]
Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body.[164] It does not allow the supervisor to annul the acts of the subordinate.[165] Here, what the DOE seeks to do is to set aside an ordinance enacted by local officials, a power that not even its principal, the President, has. This is because:
Under our present system of government, executive power is vested in the President. The members of the Cabinet and other executive officials are merely alter egos. As such, they are subject to the power of control of the President, at whose will and behest they can be removed from office; or their actions and decisions changed, suspended or reversed. In contrast, the heads of political subdivisions are elected by the people. Their sovereign powers emanate from the electorate, to whom they are directly accountable. By constitutional fiat, they are subject to the Presidents supervision only, not control, so long as their acts are exercised within the sphere of their legitimate powers. By the same token, the President may not withhold or alter any authority or power given them by the Constitution and the law.[166]
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Thus, the President and his or her alter egos, the department heads, cannot interfere with the activities of local governments, so long as they act within the scope of their authority. Accordingly, the DOE cannot substitute its own discretion for the discretion exercised by the sanggunian of the City of Manila. In local affairs, the wisdom of local officials must prevail as long as they are acting within the parameters of the Constitution and the law.[167]
Ordinance No. 8027 Is Not Invalid For Failure To Comply With RA 7924 And EO 72
The oil companies argue that zoning ordinances of LGUs are required to be submitted to the Metropolitan Manila Development Authority (MMDA) for review and if found to be in compliance with its metropolitan physical framework plan and regulations, it shall endorse the same to the Housing and Land Use Regulatory Board (HLURB). Their basis is Section 3 (e) of RA 7924:[168]
SECTION 3. Scope of MMDA Services. ― Metro-wide services under the jurisdiction of the MMDA 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 [LGUs] comprising Metropolitan Manila. These services shall include:
xxx xxx xxx
(g) Urban renewal, zoning, and land use planning, and shelter services which include the formulation, adoption and implementation of policies, standards, rules and regulations, programs and projects to rationalize and optimize urban land use and provide direction to urban growth and expansion, the rehabilitation and development of slum and blighted areas, the development of shelter and housing facilities and the provision of necessary social services thereof. (Emphasis supplied)
Reference was also made to Section 15 of its implementing rules:
Section 15. Linkages with HUDCC, HLURB, NHA, LGUs and Other National Government Agencies Concerned on Urban Renewal, Zoning and Land Use Planning and Shelter Services. Within the context of the National Housing and Urban Development Framework, and pursuant to the national standards, guidelines and regulations formulated by the Housing and Land Use Regulatory Board [HLURB] on land use planning and zoning, the [MMDA] shall prepare a metropolitan physical framework plan and regulations which shall complement and translate the socio-economic development plan for Metro Manila into physical or spatial terms, and provide the basis for the preparation, review, integration and implementation of local land use plans and zoning, ordinance of cities and municipalities in the area.
Said framework plan and regulations shall contain, among others, planning and zoning policies and procedures that shall be observed by local government units in the preparation of their own plans and ordinances pursuant to Section 447 and 458 of RA 7160, as well as the identification of sites and projects that are considered to be of national or metropolitan significance.
Cities and municipalities shall prepare their respective land use plans and zoning ordinances and submit the same for review and integration by the [MMDA] and indorsement to HLURB in accordance with Executive Order No. 72 and other pertinent laws.
In the preparation of a Metropolitan Manila physical framework plan and regulations, the [MMDA] shall coordinate with the Housing and Urban Development Coordinating Council, HLURB, the National Housing Authority, Intramuros Administration, and all other agencies of the national government which are concerned with land use and zoning, urban renewal and shelter services. (Emphasis supplied)
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They also claim that EO 72[169] provides that zoning ordinances of cities and municipalities of Metro Manila are subject to review by the HLURB to ensure compliance with national standards and guidelines. They cite Section 1, paragraphs I, (e), (f) and (g):
SECTION 1. Plan formulation or updating. ―
xxx xxx xxx
(g) Cities and municipalities of Metropolitan Manila shall continue to formulate or update their respective comprehensive land use plans, in accordance with the land use planning and zoning standards and guidelines prescribed by the HLURB pursuant to EO 392, S. of 1990, and other pertinent national policies.
Xxx xxx xxx
(e) Pursuant to LOI 729, S. of 1978, EO 648, S. of 1981, and RA 7279, the comprehensive land use plans of provinces, highly urbanized cities and independent component cities shall be reviewed and ratified by the HLURB to ensure compliance with national standards and guidelines.
(f) Pursuant to EO 392, S. of 1999, the comprehensive land use plans of cities and municipalities of Metropolitan Manila shall be reviewed by the HLURB to ensure compliance with national standards and guidelines.
(g) Said review shall be completed within three (3) months upon receipt thereof otherwise, the same shall be deemed consistent with law, and, therefore, valid. (Emphasis supplied)
They argue that because Ordinance No. 8027 did not go through this review process, it is invalid.
The argument is flawed.
RA 7942 does not give MMDA the authority to review land use plans and zoning ordinances of cities and municipalities. This was only found in its implementing rules which made a reference to EO 72. EO 72 expressly refers to comprehensive land use plans (CLUPs) only. Ordinance No. 8027 is admittedly not a CLUP nor intended to be one. Instead, it is a very specific ordinance which reclassified the land use of a defined area in order to prevent the massive effects of a possible terrorist attack. It is Ordinance No. 8119 which was explicitly formulated as the Manila [CLUP] and Zoning Ordinance of 2006. CLUPs are the ordinances which should be submitted to the MMDA for integration in its metropolitan physical framework plan and approved by the HLURB to ensure that they conform with national guidelines and policies.
Moreover, even assuming that the MMDA review and HLURB ratification are necessary, the oil companies did not present any evidence to show that these were not complied with. In accordance with the presumption of validity in favor of an ordinance, its constitutionality or legality should be upheld in the absence of proof showing that the procedure prescribed by law was not observed. The burden of proof is on the oil companies which already had notice that this Court was inclined to dispose of all the issues in this case. Yet aside from their bare assertion, they did not present any certification from the MMDA or the HLURB nor did they append these to their pleadings. Clearly, they failed to rebut the presumption of validity of Ordinance No. 8027.[170]
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Conclusion
Essentially, the oil companies are fighting for their right to property. They allege that they stand to lose billions of pesos if forced to relocate. However, based on the hierarchy of constitutionally protected rights, the right to life enjoys precedence over the right to property.[171] The reason is obvious: life is irreplaceable, property is not. When the state or LGUs exercise of police power clashes with a few individuals right to property, the former should prevail.[172]
Both law and jurisprudence support the constitutionality and validity of Ordinance No. 8027. Without a doubt, there are no impediments to its enforcement and implementation. Any delay is unfair to the inhabitants of the City of Manila and its leaders who have categorically expressed their desire for the relocation of the terminals. Their power to chart and control their own destiny and preserve their lives and safety should not be curtailed by the intervenors warnings of doomsday scenarios and threats of economic disorder if the ordinance is enforced.
Secondary to the legal reasons supporting the immediate implementation of Ordinance No. 8027 are the policy considerations which drove Manilas government to come up with such a measure:
... [The] oil companies still were not able to allay the apprehensions of the city regarding the security threat in the area in general. No specific action plan or security measures were presented that would prevent a possible large-scale terrorist or malicious attack especially an attack aimed at Malacaang. The measures that were installed were more directed towards their internal security and did not include the prevention of an external attack even on a bilateral level of cooperation between these companies and the police and military.
Xxx xxx xxx
It is not enough for the city government to be told by these oil companies that they have the most sophisticated fire-fighting equipments and have invested millions of
pesos for these equipments. The city government wants to be assured that its residents are safe at any time from these installations, and in the three public hearings and in their position papers, not one statement has been said that indeed the absolute safety of the residents from the hazards posed by these installations is assured.[173]
We are also putting an end to the oil companies determination to prolong their stay in Pandacan despite the objections of Manilas residents. As early as October 2001, the oil companies signed a MOA with the DOE obliging themselves to:
... undertake a comprehensive and comparative study ... [which] shall include the preparation of a Master Plan, whose aim is to determine the scope and timing of the feasible location of the Pandacan oil terminals and all associated facilities and infrastructure including government support essential for the relocation such as the necessary transportation infrastructure, land and right of way acquisition, resettlement of displaced residents and environmental and social acceptability which shall be based on mutual benefit of the Parties and the public.[174]
Now that they are being compelled to discontinue their operations in the Pandacan Terminals, they cannot feign unreadiness considering that they had years to prepare for this eventuality.
Just the same, this Court is not about to provoke a crisis by ordering the immediate relocation of the Pandacan Terminals out of its present site. The enforcement of a decision of this Court, specially one with far-reaching consequences, should always be within the bounds of reason, in accordance with a comprehensive and well-coordinated plan, and within a time-frame that complies with the letter and spirit of our resolution. To this end, the oil companies have no choice but to obey the law.
A Warning To Petitioners Counsel
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We draw the attention of the parties to a matter of grave concern to the legal profession.
Petitioners and their counsel, Atty. Samson Alcantara, submitted a four-page memorandum that clearly contained either substance nor research. It is absolutely insulting to this Court.
We have always tended towards judicial leniency, temperance and compassion to those who suffer from a wrong perception of what the majesty of the law means. But for a member of the bar, an officer of the court, to file in this Court a memorandum of such unacceptable quality is an entirely different matter.
It is indicative less of a personal shortcoming or contempt of this Court and more of a lawyers sorry descent from a high sense of duty and responsibility. As a member of the bar and as an officer of the court, a lawyer ought to be keenly aware that the chief safeguard of the body politic is respect for the law and its magistrates.
There is nothing more effective than the written word by which counsel can persuade this Court of the righteousness of his cause. For if truth were self-evident, a memorandum would be completely unnecessary and superfluous.
The inability of counsel to prepare a memorandum worthy of this Courts consideration is an ejemplo malo to the legal profession as it betrays no genuine interest in the cause he claims to espouse. Or did counsel think he can earn his moment of glory without the hard work and dedication called for by his petition?
A Final Word
On Wednesday, January 23, 2008, a defective tanker containing 2,000 liters of gasoline and 14,000 liters of diesel exploded in the middle of the street a short distance from the exit gate of the Pandacan Terminals, causing death, extensive damage and a frightening conflagration in the vicinity of the incident. Need we say
anthing about what will happen if it is the estimated 162 to 211 million liters[175] of petroleum products in the terminal complex which blow up?
WHEREFORE, the motions for leave to intervene of Chevron Philippines Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation, and the Republic of the Philippines, represented by the Department of Energy, are hereby GRANTED. Their respective motions for reconsideration are hereby DENIED. The Regional Trial Court, Manila, Branch 39 is ORDERED to DISMISS the consolidated cases of Civil Case No. 03-106377 and Civil Case No. 03-106380.
We reiterate our order to respondent Mayor of the City of Manila to enforce Ordinance No. 8027. In coordination with the appropriate agencies and other parties involved, respondent Mayor is hereby ordered to oversee the relocation and transfer of the Pandacan Terminals out of its present site.
To ensure the orderly transfer, movement and relocation of assets and personnel, the intervenors Chevron Philippines Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation shall, within a non-extendible period of ninety (90) days, submit to the Regional Trial Court of Manila, Branch 39, the comprehensive plan and relocation schedule which have allegedly been prepared. The presiding judge of Manila RTC, Branch 39 will monitor the strict enforcement of this resolution.
Atty. Samson Alcantara is hereby ordered to explain within five (5) days from notice why he should not be disciplined for his refusal, or inability, to file a memorandum worthy of the consideration of this Court.
Treble costs against petitioners counsel, Atty. Samson Alcantara.
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Constitutional Law II - Book 2005 - Magtajas v. PryceProperties Corp. [GR 111097, 20 July 1994]Magtajas v. Pryce Properties Corp. [GR 111097, 20 July 1994] En Banc, Cruz (J): 12 concur Facts:The Philippine Amusement and Gaming Corporation (PAGCOR) is a corporation createddirectly by Presidential Decree 1869 to help centralize and regulate all games of chance,including casinos on land and sea within the territorial jurisdiction of the Philippines (theconstitutionality of the decree was sustained in Basco v. Philippine Amusements and GamblingCorporation). Cagayan de Oro City, like other local political subdivisions, is empowered to enactordinances for the purposes indicated in the Local Government Code. It is expressly vested withthe police power under what is known as the General Welfare Clause embodied in Section 16. ItsSangguniangPanglungsod derives its powers, duties and functions under Section 458 of saidCode. In 1992, following its success in several cities, PAGCOR decided to expand its operationsto Cagayan de Oro City. To this end, it leased a portion of a building belonging to PryceProperties Corporation Inc., renovated and equipped the same, and prepared to inaugurate itscasino there during the Christmas season. The reaction of the SangguniangPanlungsod of Cagayan de Oro City was swift and hostile. On 7 December 1992, it enacted Ordinance 3353(An Ordinance Prohibiting the issuance of business permit and canceling existing business permit to any establishment for the using and allowing to be used its premises or portion thereof for the operation of Casino). On 4 January 1993, it adopted a sterner Ordinance 3375-93 (AnOrdinance prohibiting the operation of Casino and providing penalty for violation therefore).Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR asintervenor and supplemental petitioner. The Court found the ordinances invalid and issued thewrit prayed for to prohibit their enforcement. Reconsideration of the decision was denied on 13July 1993. Cagayan de Oro City and its mayor filed a petition for review under Rules of Courtwith the Supreme Court.Issue:Whether the SangguniangPanlungsod of Cagayan de Oro can prohibit the establishment of a casino, or gambling, operated by PAGCOR through an ordinance or resolution.Held:The morality of gambling is not justiciable issue. Gambling is not illegal per se. While it isgenerally considered inimical to the interests of the people, there is nothing in the Constitutioncategorically proscribing or penalizing gambling or, for that matter, even mentioning it at all. Itis left to Congress to deal with the activity as
it sees fit. In the exercise of its own discretion, thelegislature may prohibit gambling altogether or allow it without limitation or it may prohibitsome forms of gambling and allow others for whatever reasons it may consider sufficient.Further, there are two kinds of gambling, to wit, the illegal and those authorized by law.Legalized gambling is not a modern concept; it is probably as old as illegal gambling, if notindeed more so. The suggestion that the Local Government Code (LGC) authorize LocalGovernment Units (LGUs) to prohibit all kinds of gambling would erase the distinction betweenthese two forms of gambling without a clear indication that this is the will of legislature.Ordinances should not contravene a statute as municipal governments are only agents of thenational government. Local councils exercise only delegated legislative powers conferred on
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LAGUNA LAKE DEVELOPMENT AUTHORITY vs COURT OF APPEALS (Romero[1], 1994)LAGUNA LAKE DEVELOPMENT AUTHORITY vs COURT OF APPEALS (Romero[1], 1994)FACTS· The residents of Tala Estate, Barangay Camarin, Caloocan City raised a complaint with the Laguna Lake Development Authority (LLDA), seeking to stop the operation of the City Government of Caloocan of an 8.6 hectare open garbage dumpsite in Tala Estate, due to its harmful effects on the health of the residents and the pollution of the surrounding water.· LLDA discovered that the City Government of Caloocan has been maintaining the open dumpsite at the Camarin Area without a requisite Environmental Compliance Certificate from the Environmental Management Bureau of the DENR. They also found the water to have been directly contaminated by the operation of the dumpsite.· LLDA issued a Cease and Desist Order against the City Government and other entities to completely halt, stop and desist from dumping any form or kind of garbage and other waste matter on the Camarin dumpsite.· The City Government went to the Regional Trial Court of Caloocan City to file an action for the declaration of nullity of the cease and desist order and sought to be declared as the sole authority empowered to promote the health and safety and enhance the right of the people in Caloocan City to a balanced ecology within its territorial jurisdiction.· LLDA sought to dismiss the complaint, invoking the Pollution Control Law that the review of cease and desist orders of that nature falls under the Court of Appeals and not the RTC.· RTC denied LLDA’s motion to dismiss, and issued a writ of preliminary injunction enjoining LLDA from enforcing the cease and desist order during the pendency of the case.· The Court of Appeals promulgated a decision that ruled that the LLDA has no power and authority to issue a cease and desist order enjoining the dumping of garbage.· The residents seek a review of the decision.ISSUEWoN the LLDA has authority and power to issue an order which, in its nature and effect was injunctive.THEORY OF THE PARTIESCity Government of Caloocan: As a local government unit, pursuant to the general welfare provision of the Local Government Code, they have the mandate to operate a dumpsite and determine the effects to the ecological balance over its territorial jurisdiction.LLDA: As an administrative agency which was granted regulatory and adjudicatory powers and functions by RA No. 4850, it is invested with the power and authority to issue a cease and desist order pursuant to various provisions in EO No. 927.
RULINGYES.1. LLDA is mandated by law to manage the environment, preserve the quality of human life and ecological systems and prevent undue ecological disturbances, deterioration and pollution in the Laguna Lake area and surrounding provinces and cities, including Caloocan.· While pollution cases are generally under the Pollution Adjudication Board under the Department of Environment and Natural Resources, it does not preclude mandate from special laws that provide another forum.· In this case, RA No. 4850 provides that mandate to the LLDA. It is mandated to pass upon or approve or disapprove plans and programs of local government offices and agencies within the region and their underlying environmental/ecological repercussions.· The DENR even recognized the primary jurisdiction of the LLDA over the case when the DENR acted as intermediary at a meeting among the representatives of the city government, LLDA and the residents.
2. LLDA has the authority to issue the cease and desist order.a. Explicit in the law.· §4, par. (3) explicitly authorizes the LLDA to make whatever order may be necessary in the exercise of its jurisdiction.· While LLDA was not expressly conferred the power “to issue an ex-parte cease and desist order” in that language, the provision granting authority to “make (…) orders requiring the discontinuance of pollution”, has the same effect.
b. Necessarily implied powers.· Assuming arguendo that the cease and desist order” was not expressly conferred by law, there is jurisprudence enough to the effect.· While it is a fundamental rule that an administrative agency has only such power as expressly granted to it by law, it is likewise a settled rule that an administrative agency has also such powers as are necessarily implied in the exercise of its express powers. Otherwise, it will be reduced to a “toothless” paper agency.· In Pollution Adjudication Board vs Court of Appeals, the Court ruled that the PAB has the power to issue an ex-parte cease and desist order on prima facie evidence of an establishment exceeding the allowable standards set by the anti-pollution laws of the country.· LLDA has been vested with sufficiently broad powers in the regulation of the projects within the Laguna Lake region, and this includes the implementation of relevant anti-pollution laws in the area.
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Garcia et al. vs COMELECPosted by kaye lee on 10:58 AMG.R. No. 111511 October 5, 1993 [Initiative and Referendum; Recall proceeding]
FACTS:Enrique T. Garcia was elected governor of Bataan in the 1992 elections. Some mayors, vice-mayors and members of the Sangguniang Bayan of the twelve (12) municipalities of the province constituted themselves into a Preparatory Recall Assembly to initiate the recall election of petitioner Garcia. They issued Resolution No. 1 as formal initiation of the recall proceedings. COMELEC scheduled the recall election for the gubernatorial position of Bataan.
Petitioners then filed a petition for certiorari and prohibition with writ of preliminary injunction to annul the Resolution of the COMELEC because the PRAC failed to comply with the "substantive and procedural requirement" laid down in Section 70 of R.A. 7160 (Local Government Code 1991). They pointed out the most fatal defect of the proceeding followed by the PRAC in passing the Resolution: the deliberate failure to send notices of the meeting to 65 members of the assembly.
ISSUES:1) Whether or not the people have the sole and exclusive right to initiate recall proceedings.2) Whether or not the procedure for recall violated the right of elected local public officials belonging to the political minority to equal protection of the law.
RULING:1) No. There is nothing in the Constitution that will remotely suggest that the people have the "sole and exclusive right to decide on whether to initiate a recall proceeding." The Constitution did not provide for any mode, let alone a single mode, of initiating recall elections.The mandate given by section 3 of Article X of the Constitution is for Congress to "enact a local government code which shall provide for a more responsive and accountable local government structure through a system of decentralization with effective mechanisms of recall, initiative, and referendum . . ." By this constitutional mandate, Congress was clearly given the power to choose the effective mechanisms of recall as its discernment dictates.What the Constitution simply required is that the mechanisms of recall, whether one or many, to be chosen by Congress should be effective. Using its constitutionally granted discretion, Congress deemed it wise to enact an alternative mode of initiating recall elections to supplement the former mode of initiation by direct action of the people. The legislative records reveal there were two (2) principal reasons why this alternative mode of initiating the recall process thru an assembly was adopted, viz:
(a) to diminish the difficulty of initiating recall thru the direct action of the people; and (b) to cut down on its expenses.
2) No. Under the Sec. 70 of the LGC, all mayors, vice-mayors and sangguniang members of the municipalities and component cities are made members of the preparatory recall assembly at the provincial level. Its membership is not apportioned to political parties. No significance is given to the political affiliation of its members. Secondly, the preparatory recall assembly, at the provincial level includes all the elected officials in the province concerned. Considering their number, the greater probability is that no one political party can control its majority. Thirdly, sec. 69 of the Code provides that the only ground to recall a locally elected public official is loss of confidence of the people. The members of the PRAC are in the PRAC not in representation of their political parties but as representatives of the people. By necessary implication, loss of confidence cannot be premised on mere differences in political party affiliation. Indeed, our Constitution encourages multi-party system for the existence of opposition parties is indispensable to the growth and nurture of democratic system. Clearly then, the law as crafted cannot be faulted for discriminating against local officials belonging to the minority.Moreover, the law instituted safeguards to assure that the initiation of the recall process by a preparatory recall assembly will not be corrupted by extraneous influences. We held that notice to all the members of the recall assembly is a condition sine qua non to the validity of its proceedings. The law also requires a qualified majority of all the preparatory recall assembly members to convene in session and in a public place. Needless to state, compliance with these requirements is necessary, otherwise, there will be no valid resolution of recall which can be given due course by the COMELEC.
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LUZ YAMANE (petitioner) v BA LEPANTO CONDOMINIUM CORPORATION (respondent)October 25 2005 | Tinga, J. |Leigh Local TaxationSUPERFACTS! The city treasurer imposed taxes on Lepanto, a corporation that owned a condominium, saying that because Lepanto collected assessments for operating expenses for the common areas of the condominium, Lepanto was actually engaged in business. The SC ruled that Lepanto was not organized for profit. The fees it was collecting from the condominium unit owners redound to the owners themselves because the fees collected are being used for the maintenance of the condo. Further, it appears that the assessment issued by the city treasurer did not state the legal basis for the tax being imposed on Lepanto– it merely states that Makati is authorized to collect business taxes under the LGC, but no other reference specific reference to specific laws were cited.FACTS: BA Lepanto Condominium Corporation (Lepanto) owns title over BA-Lepanto Condominium, and is authorized by its by-laws to collect regular assessments from its members for operating expenses, capital expenditures on common areas, and other special assessements. In 1998, it received a tax assessment in the amount of P1,601,013.77 from Luz Yamane, the City Treasurer of Makati, for business taxes for the years 1995-1997. The notice of assessment was silent as to the statutory basis of the business taxes assessed. Lepanto protested the assessment, saying that:… The Assessment has no basis as the Corporation is not liable for business taxes and surcharges and interest thereon,under the Makati [Revenue] Code or even under the [Local Government] Code (LGC). The Makati [Revenue] Code and the LGC do not contain any provisions on which the Assessment could be based. One might argue that Sec. 3A.02(m) of the Makati [Revenue] Code imposes business tax on owners or operators of any business not specified in the said code. We submit, however, that this is not applicable to the Corporation as it is not an owner or operator of any business in the contemplation of the Makati [Revenue] Code and even the LGC.Proceeding from the premise that its tax liability arose from Section 3A.02(m) of the Makati Revenue Code, Lepanto argued that under both the Makati Code and the LGC, “business” is defined as “trade or commercial activity regularly engaged in as a means of livelihood or with a view to profit.” It was submitted that Lepanto, as a condominium corporation, was organized not for profit, but to hold title over the common areas of the Condominium, to manage the Condominium for the unit owners, and to hold title to the parcels of land on which the Condominium was located. Neither was Lepanto authorized, under its AOI or by-laws to engage in profit-making activities. The assessments it did collect from the
unit owners were for capital expenditures and operating expenses. Yamane denied the protest, insisting that the assessments were made in view of profit-making, as the assessments which were collected improved the value of the condominiums, which in turn would increase the chances of getting higher prices. Lepanto then appealed the denial to the RTC of Makati. RTC Makati affirmed the decision of Yamane, saying that Lepanto’s activities fell under the definition of “business” under Sec. 13(b)of the LGC, and thus subject to local business taxation. Lepanto then filed a petition for review under Rule 42 with the Court of Appeals. The Court of Appeals reversed the RTC, ruling that Lepanto was not engaged in profit. CA also said that the very statutory concept of a condominium corporation showed that it was not a juridical entity intended to make profit, as its sole purpose was to hold title to the common areas in the condominium and to maintain the condominium.Yamane: Lepanto is engaged in business. The dues collected are used for the beautification and maintenanceof the Condominium, resulting in “full appreciative living values” forthe condominium units which would command better market prices should they be sold in the future. Moreover, the rationale for business taxes is not on the profit earned by the business, but the privilege to engage in business.- Also, on a procedural note: Lepanto filed the wrong mode of appeal before the CA when it filed itspetition for review under rule 42. The RTC decision was rendered in the court’s exercise of originaljurisdiction. Thus, with Lepanto pursuing an erroneous mode of appeal, the RTC decision became final and executory. RULING: petition DENIED.
Facts: Petitioner City Treasurer of Makati holds respondent, in a Notice of Assessment, liable to pay the correct business taxes, fees and charges totaling to P1.6M in which the respondents protested contending that condominium does not fall under the definition of a business, thus, they are not liable for such taxes.
Issue: Whether or not the City Treasurer of Makati may collect business taxes on condominium corporations
Held: Petition denied. Accordingly, and with significant degree of comfort, we hold that condominium corporations are generally exempt from local business taxation under the LGC, irrespective of any local ordinance that seeks to declare otherwise.
The power of the local government units to impose taxes within its territorial jurisdiction derives from the Constitution itself, which recognizes the power of these units “to create its own sources of revenue and to levy taxes, fees, and charges
39
subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy.”
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Borja vs COMELEC [295 SCRA 157; GR 133495, September 3, 1998]Posted by Pius Morados on November 6, 2011
(Municipal Corporation, Disqualification, Succession – Exception to the 3 term limit)
Facts: Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988 for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. For the next two succeeding elections in 1992 and 1995, he was again re-elected as Mayor.
On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor, sought Capco’s disqualification on the theory that the latter would have already served as mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term after that.
The Second Division of the Commission on Elections ruled in favor of petitioner and declared private respondent Capco disqualified from running for reelection as mayor of Pateros but in the motion for reconsideration, majority overturned the original decision.
Issue: WON Capco has served for three consecutive terms as Mayor?
Held: No. Article X, Sec. 8 of the Constitution provides that “…the term of office of elective local officials… …shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.”
This provision is restated in par. 43(b) of the Local Government Code (R.A. No. 71) which states that “…no local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected….”
The term served must therefore be one “for which [the official concerned] was elected.” The purpose of this provision is to prevent a circumvention of the limitation on the number of terms an elective official may serve. Conversely, if he is not serving a term for which he was elected because he is simply continuing the service of the official he succeeds, such official cannot be considered to have fully
served the term not withstanding his voluntary renunciation of office prior to its expiration.
The term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply.
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PANDI V. CA380 SCRA 436CARPIO, April 11, 2002NATUREPetition for Review on Certiorari under Rule 45FACTS- August 9, 1993: Dr. Macacua, Regional Director &Sec. of Health of the DOH-ARMMissued aMemorandum designatingDr. Pandi (then DOH-ARMM Assistant Regional Secretary), as OIC of the IPHO-APGH in Lanao del Sur. Dr. Macacua also designatedDr. Sani(then the Provincial health officer of theIPHO-APGH) to the DOH-ARMM Regional Office.- September 15, 1993: Lanao del Sur Provincial Governor issued Office Order NO. 07 designatingDr.Saberas the OIC of the IPHO-APGH, Lanao del Sur.-Dr. Sanichallenged the Memorandum transferring him in a complaint filed with the RTC claiming thereinthat he was appointed as provincial health officer of the IPHO-APGH in a permanent capacity.-Dr. Saberfiled a petitioner for quo warranto with a prayer for preliminary injunction, claiming that he islawfully designated OIC of IPHO-APGH, Lanao del Sur. The CA issued a TRO enjoining Pandi from furtherdischarging his functions as OIC of the IPHO-APGH.-Dr. Sanifiled a Motion for Intervention.- November 6, 1993: After President Ramos issued E.O. 133 transferring the powers & functions of he DOHin the region to the Regional Government of ARMM, Dr. Macacua (as DOH-ARMM Sec.-Designate) issued a2nd Memorandumreiterating the designation of Dr. Pandi as OIC of the IPHO-APGH and thedetail of Dr. Sani to the Regional office in Cotabato City.-Drs. Pandi & Macacua sought the dismissal of Dr. Saber’s petitioner on the ground that the issues thereinhad become moot & academic because of the enactment of the ARMM Local Government Code, as well asthe execution of the Memo of agreement between the DOH-National Government and the ARMM RegionalGovernment.-CA:designation of Dr. Saber as OIC of IPHO-APGH upheld; the Provincial Governor has the power toappoint the provincial health officer under the LGC of 1991; Dr. Sani cannot claim to have permanentdesignation as provincial health officer because he was not appointed by the Provincial Governor.ISSUE
WON the Provincial Governor can designate the OIC of the IPHO-APGH (WON the appointment of Saber isvalid)at that timeHELD(NOTE: MAY MAHABANG HISTORY PART SA ORIGINAL CASE. Just see the case)NO.Reasoning.When Saber was appointed by the provincial governor on September 15, 1993, the provincialhealth officer of Lanao del Sur was still a national government official paid entirely from national funds. The provincial health officer was still appointed by the national Secretary of Health to a region and not to aprovince. The Secretary of Health exercised supervision and control over the provincial health officer. TheSecretary of Health was also the official authorized by law to assign the provincial health officer to anyprovince within the region. Indisputably, on September 15, 1993, Provincial Governor Mutilan had nopower to designate Saber as Officer-in-Charge of IPHO-APGH, Lanao del Sur. Consequently, the designationof Saber as such Officer-in-Charge is void.- The provincial health officer of Lanao del Sur became a provincial government official only after theeffectivity of the ARMM Local Code, which was enacted by the Regional Assembly on January 25, 1994 andapproved by the Regional Governor on March 3, 1994. Prior to the ARMM Local Code but after the issuanceof Executive Order No. 133, the Regional Governor appointed the provincial health officer while theRegional Secretary of Health could assign the provincial health officer to any province within the ARMM. The Provincial Governor had no power to appoint or even designate the Officer-in-Charge of the provincialhealth office.-on reliance on Section 478, LGC:misplaced; not a grant of powers to governors and mayors to appointlocal health officers but simply a directive that those empowered to appoint local health officers aremandated to do so; LGC did not amend the Organic Act of 1989-as regards SANI:his first appointment was void. When he was detailed in Cotabato City, the powers andfunctions of the DOH were not yet transferred to the Regional Government, and the Secretary of Health of the National Government still exercised the power to assign the provincial health officers in the ARMM. Thus, the regional Director/ARMM Secretary of Health’s directive assigning Sani to Regional Office inCotabato City is void. As regards the November 6, 1993 Memorandum reiterating Sani’s detail, since it wasissued after the issuance of EO 133 which expressly transferred “supervision and control over all functionsand activities of the Regional Department of Health to the Head of the Regional Department of Health, andsince it is within the authority of the ARMM Secretary of Health, it is valid.-as regards Pandi: August 9, 1993 designation by the ARMM Secretary of Health is VOID since at that time,the latter did not exercise yet supervision and control over the provincial health offices of the ARMM.However, November 6, 1993 designation is valid. The
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designation of Pandi as OIC, however, while valid isonly temporary in nature, good until a new designation or a permanent appointment is made
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Sema v. COMELEC(July 16, 2008)Doctrine:Ang daming relevant parts regarding creation. Please see Ratio.NATURE: Consolidated petitions (certiorari prohibition and mandamus; declaratory relief; and prohibition and mandamus) seek to annul Resolution No. 7902 dated May 10, 2007 of the COMELEC, treating Cotabato City as part of the legislative district of the Province of Shariff Kabunsuan.PONENTE:Carpio, En Banc FACTS:The Ordinance appended to the 1987 Constitution of the Philippines apportioned 2 legislative districts for Maguindanao. The first consists of Cotabato City and 8 municipalities. Maguindanao forms part of the ARMM, created under its Organic Act,RA 6734, as amended by RA 9054. Cotabato City, as part of Maguindanao’s firstlegislative district, is not part of the ARMM but of Region XII (having voted against its inclusion in November 1989 plebiscite). On28 August 2006, the ARMM’s legislature, the ARMM Regional Assembly, exercisingits power to create provinces under Section 19, Article VI of RA 9054, enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the Province of Shariff Kabunsuan composed of the 8 municipalities in the first district of Maguindanao. Later, 3 new municipalities were carved out of the original 9, constituting Shariff Kabunsuan, resulting to total of 11. Cotabato City is not part of Maguindanao. Maguindanao voters ratified Shariff Kabunsuan’s creation in 29 October 2006plebiscite. On 6 February 2007, Cotabato City passed Board Resolution No. 3999, requesting theCOMELEC to “clarify the status of Cotabato City in view of the conversion of the FirstDistrict of Maguindanaointo a regular province” under MMA Act 201. The COMELECissued Resolution No. 07-0407 on 6 March 2007 "maintaining the status quo with Cotabato City as part of Shariff Kabunsuan in the First Legislative District ofMaguindanao.” Resolution No. 07-0407, adopted the COMELEC’s Law Departmentrecommendation under a Memorandum dated 27 February 2007. The COMELECissued on 29 March 2007 Resolution No. 7845 stating that Maguindanao’s first
legislative district is composed only of Cotabato City because of the enactment of MMA Act 201. On 10 May 2007, the COMELEC issued Resolution No. 7902 (subject of these cases), amending Resolution No. 07-0407 by renaming the legislative district in question as“Shariff Kabunsuan Province with Cotabato City (formerly First District ofMaguindanao with Cotabato City).” Meanwhile, the Shariff Kabunsuan creation plebiscite was supervised and officiated by the COMELEC pursuant to Resolution No. 7727. (Option Votes: In favor for creation 285,372; Against the creation 8,802) The following municipalities seceded from Maguindanao and formed the new province. All of them were from the first legislative district of Maguindanao. (Barira, Buldon, Datu Blah T. Sinsuat, Datu Odin Sinsuat, Kabuntalan, Matanog, Parang, Sultan Kudarat, Sultan Mastura, Upi) Kabuntalan was chosen as the capital of the new province. The province was the first to be created under Republic Act No. 9054 or the Expanded ARMM law. Sandra Sema questioned COMELEC Resolution 7902 which combined Shariff Kabunsuan and Cotabato City into a single legislative district during the Philippine general election, 2007. Sema lost to incumbent Congress representative of the Shariff Kabunsuan and Cotabato district, Didagen Dilangalen.ISSUES: Whether the ARMM Regional Assembly Can Create the Province of Shariff Kabunsuan If in the affirmative, whether a province created by the ARMM Regional Assembly under MMA Act 201 pursuant to Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such province.HELD:The petitions have no merit. We rule that (1) Section 19, Article VI of RA 9054 is unconstitutional insofar as it grants to the ARMM Regional Assembly the power to create provinces and cities; (2) MMA Act 201 creating the Province of Shariff Kabunsuan is void; and (3) COMELEC Resolution No. 7902 is valid
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Republic of the PhilippinesSUPREME COURTManila
EN BANC
G.R. No. 175368 April 11, 2013
LEAGUE OF PROVINCES OF THE PHILIPPINES, Petitioner,vs.DEPARTMENT OF ENVIRONMENT and NATURAL RESOURCES and HON. ANGELO T. REYES, in his capacity as Secretary of DENR, Respondents.
D E C I S I O N
PERALTA, J.:
This is a petition for certiorari, prohibition and mandamus,1 praying that this Court order the following: ( 1) declare as unconstitutional Section 17(b)(3)(iii) of Republic Act (R.A.) No. 7160, otherwise known as The Local Government Code of 1991 and Section 24 of Republic Act (R.A.) No. 7076, otherwise known as the People's Small-Scale Mining Act of 1991; (2) prohibit and bar respondents from exercising control over provinces; and (3) declare as illegal the respondent Secretary of the Department of Energy and Natural Resources' (DENR) nullification, voiding and cancellation of the Small-Scale Mining permits issued by the Provincial Governor of Bulacan.
The Facts are as follows:
On March 28, 1996, Golden Falcon Mineral Exploration Corporation (Golden Falcon) filed with the DENR Mines and Geosciences Bureau Regional Office No. III (MGB R-III) an Application for Financial and Technical Assistance Agreement (FTAA) covering an area of 61,136 hectares situated in the Municipalities of San Miguel, San Ildefonso, Norzagaray and San Jose del Monte, Bulacan.2
On April 29, 1998, the MGB R-III issued an Order denying Golden Falcon's Application for Financial and Technical Assistance Agreement for failure to secure area clearances from the Forest Management Sector and Lands Management Sector of the DENR Regional Office No. III.3
On November 11, 1998, Golden Falcon filed an appeal with the DENR Mines and Geosciences Bureau Central Office (MGB-Central Office), and sought reconsideration of the Order dated April 29, 1998.4
On February 10, 2004, while Golden Falcon's appeal was pending, Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Liberato Sembrano filed with the Provincial Environment and Natural Resources Office (PENRO) of Bulacan their respective Applications for Quarry Permit (AQP), which covered the same area subject of Golden Falcon's Application for Financial and Technical Assistance Agreement.5
On July 16, 2004, the MGB-Central Office issued an Order denying Golden Falcon's appeal and affirming the MGB R-III's Order dated April 29, 1998.
On September 13, 2004, Atlantic Mines and Trading Corporation (AMTC) filed with the PENRO of Bulacan an Application for Exploration Permit (AEP) covering 5,281 hectares of the area covered by Golden Falcon's Application for Financial and Technical Assistance Agreement.6
On October 19, 2004, DENR-MGB Director Horacio C. Ramos, in response to MGB R-III Director Arnulfo V. Cabantog's memorandum query dated September 8, 2004, categorically stated that the MGB-Central Office's Order dated July 16, 2004 became final on August 11, 2004, fifteen (15) days after Golden Falcon received the said Order, per the Certification dated October 8, 2004 issued by the Postmaster II of the Philippine Postal Corporation of Cainta, Rizal.7
Through letters dated May 5 and May 10, 2005, AMTC notified the PENRO of Bulacan and the MGB R-III Director, respectively, that the subject Applications for Quarry Permit fell within its (AMTC's) existing valid and prior Application for Exploration Permit, and the the former area of Golden Falcon was open to mining location only on August 11, 2004 per the Memorandum dated October 19, 2004 of the MGB Director, Central Office.8
On June 24, 2005, Ricardo Medina, Jr., PENRO of Bulacan, indorsed AMTC's letter to the Provincial Legal Officer, Atty. Eugenio F. Resurreccion, for his legal opinion on which date of denial of Golden Falcon's application/appeal – April 29, 1998 or July 16, 2004 − is to be considered in the deliberation of the Provincial Mining Regulatory Board (PMRB) for the purpose of determining when the land subject of the Applications for Quarry Permit could be considered open for application.
On June 28, 2005, Provincial Legal Officer Eugenio Resurreccion issued a legal opinion stating that the Order dated July 16, 2004 of the MGB-Central Office was a mere reaffirmation of the Order dated April 29, 1998 of the MGB R-III; hence, the Order dated April 29, 1998 should be the reckoning period of the denial of the application of Golden Falcon.
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On July 22, 2005, AMTC filed with the PMRB of Bulacan a formal protest against the aforesaid Applications for Quarry Permit on the ground that the subject area was already covered by its Application for Exploration Permit.9
On August 8, 2005, MGB R-III Director Cabantog, who was the concurrent Chairman of the PMRB, endorsed to the Provincial Governor of Bulacan, Governor Josefina M. dela Cruz, the aforesaid Applications for Quarry Permit that had apparently been converted to Applications for Small-Scale Mining Permit of Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Lucila S. Valdez (formerly Liberato Sembrano).10
On August 9, 2005, the PENRO of Bulacan issued four memoranda recommending to Governor Dela Cruz the approval of the aforesaid Applications for Small-Scale Mining Permit.11
On August 10, 2005, Governor Dela Cruz issued the corresponding Small-Scale Mining Permits in favor of Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Lucila S. Valdez.12
Subsequently, AMTC appealed to respondent DENR Secretary the grant of the aforesaid Small-Scale Mining Permits, arguing that: (1) The PMRB of Bulacan erred in giving due course to the Applications for Small-Scale Mining Permit without first resolving its formal protest; (2) The areas covered by the Small-Scale Mining Permits fall within the area covered by AMTC's valid prior Application for Exploration Permit; (3) The Applications for Quarry Permit were illegally converted to Applications for Small-Scale Mining Permit; (4) DENR-MGB Director Horacio C. Ramos' ruling that the subject areas became open for mining location only on August 11, 2004 was controlling; (5) The Small-Scale Mining Permits were null and void because they covered areas that were never declared People's Small-Scale Mining Program sites as mandated by Section 4 of the People's Small-Scale Mining Act of 1991; and (6) Iron ore is not considered as one of the quarry resources, as defined by Section 43 of the Philippine Mining Act of 1995, which could be subjects of an Application for Quarry Permit.13
On August 8, 2006, respondent DENR Secretary rendered a Decision14 in favor of AMTC. The DENR Secretary agreed with MGB Director Horacio C. Ramos that the area was open to mining location only on August 11, 2004, fifteen (15) days after the receipt by Golden Falcon on July 27, 2004 of a copy of the MGB-Central Office's Order dated July 16, 2004, which Order denied Golden Falcon's appeal. According to the DENR Secretary, the filing by Golden Falcon of the letter-appeal suspended the finality of the Order of denial issued on April 29, 1998 by the Regional Director until the resolution of the appeal on July 16, 2004 by the MGB-Central Office. He stated that the Applications for Quarry Permit were filed on February 10, 2004 when the area was still closed to mining location; hence, the Small-Scale Mining Permits
granted by the PMRB and the Governor were null and void. On the other hand, the DENR Secretary declared that AMTC filed its Application for Exploration Permit when the area was already open to other mining applicants; thus, AMTC’s Application for Exploration Permit was valid. Moreover, the DENR Secretary held that the questioned Small-Scale Mining Permits were issued in violation of Section 4 of R.A. No. 7076 and beyond the authority of the Provincial Governor pursuant to Section 43 of R.A. No. 7942, because the area was never proclaimed to be under the People's Small-Scale Mining Program. Further, the DENR Secretary stated that iron ore mineral is not considered among the quarry resources.
The dispositive portion of the DENR Secretary’s Decision reads:
WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of Atlantic Mines and Trading Corp. is declared valid and may now be given due course. The Small-Scale Mining Permits, SSMP-B-002-05 of Gerardo Cruz, SSMP-B-003-05 of Eduardo D. Mercado, SSMP-B-004-05 of Benedicto S. Cruz and SSMP-B-005-05 of Lucila S. Valdez are declared NULL AND VOID. Consequently, the said permits are hereby CANCELLED.15
Hence, petitioner League of Provinces filed this petition.
Petitioner is a duly organized league of local governments incorporated under R.A. No. 7160. Petitioner declares that it is composed of 81 provincial governments, including the Province of Bulacan. It states that this is not an action of one province alone, but the collective action of all provinces through the League, as a favorable ruling will not only benefit one province, but all provinces and all local governments.
Petitioner raises these issues:
I
WHETHER OR NOT SECTION 17(B)(3)(III) OF THE, 1991 LOCAL GOVERNMENT CODE AND SECTION 24 OF THE PEOPLE'S SMALL-SCALE MINING ACT OF 1991 ARE UNCONSTITUTIONAL FOR PROVIDING FOR EXECUTIVE CONTROL AND INFRINGING UPON THE LOCAL AUTONOMY OF PROVINCES.
II
WHETHER OR NOT THE ACT OF RESPONDENT [DENR] IN NULLIFYING, VOIDING AND CANCELLING THE SMALL-SCALE MINING PERMITS AMOUNTS TO EXECUTIVE CONTROL, NOT MERELY SUPERVISION AND USURPS THE DEVOLVED POWERS OF ALL PROVINCES.16
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To start, the Court finds that petitioner has legal standing to file this petition because it is tasked under Section 504 of the Local Government Code of 1991 to promote local autonomy at the provincial level;17 adopt measures for the promotion of the welfare of all provinces and its officials and employees;18 and exercise such other powers and perform such other duties and functions as the league may prescribe for the welfare of the provinces.19
Before this Court determines the validity of an act of a co-equal and coordinate branch of the Government, it bears emphasis that ingrained in our jurisprudence is the time-honored principle that a statute is presumed to be valid.20 This presumption is rooted in the doctrine of separation of powers which enjoins upon the three coordinate departments of the Government a becoming courtesy for each other's acts.21 This Court, however, may declare a law, or portions thereof, unconstitutional where a petitioner has shown a clear and unequivocal breach of the Constitution,22 leaving no doubt or hesitation in the mind of the Court.23
In this case, petitioner admits that respondent DENR Secretary had the authority to nullify the Small-Scale Mining Permits issued by the Provincial Governor of Bulacan, as the DENR Secretary has control over the PMRB, and the implementation of the Small-Scale Mining Program is subject to control by respondent DENR.
Control of the DENR/DENR Secretary over small-scale mining in the provinces is granted by three statutes: (1) R.A. No. 7061 or The Local Government Code of 1991; (2) R.A. No. 7076 or the People's Small Scale Mining Act of 1991; and (3) R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995.24 The pertinent provisions of law sought to be declared as unconstitutional by petitioner are as follows:
R.A. No. 7061 (The Local Government Code of 1991)
SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government units shall likewise exercise such other powers and discharge such other functions and responsibilities as are necessary, appropriate, or incidental to efficient and effective provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, the following:
x x x x
(3) For a Province:c
x x x x
(iii) Pursuant to national policies and subject to supervision, control and review of the DENR, enforcement of forestry laws limited to community-based forestry projects, pollution control law, small-scale mining law, and other laws on the protection of the environment; and mini-hydro electric projects for local purposes; x x x25
R.A. No. 7076 (People's Small-Scale Mining Act of 1991)
Sec. 24. Provincial/City Mining Regulatory Board. - There is hereby created under the direct supervision and control of the Secretary a provincial/city mining regulatory board, herein called the Board, which shall be the implementing agency of the Department, and shall exercise the following powers and functions, subject to review by the Secretary:
(a) Declare and segregate existing gold-rush areas for small-scale mining;
(b) Reserve future gold and other mining areas for small-scale mining;
(c) Award contracts to small-scale miners;
(d) Formulate and implement rules and regulations related to small-scale mining;
(e) Settle disputes, conflicts or litigations over conflicting claims within a people’s small-scale mining area, an area that is declared a small-mining; and
(f) Perform such other functions as may be necessary to achieve the goals and objectives of this Act.26
Petitioner contends that the aforecited laws and DENR Administrative Order No. 9640 (the Implementing Rules and Regulations of the Philippine Mining Act of 1995) did not explicitly confer upon respondents DENR and the DENR Secretary the power to reverse, abrogate, nullify, void, or cancel the permits issued by the Provincial Governor or small-scale mining contracts entered into by the PMRB. The statutes are also silent as to the power of respondent DENR Secretary to substitute his own judgment over that of the Provincial Governor and the PMRB.
Moreover, petitioner contends that Section 17 (b)(3)(iii) of the Local Government Code of 1991 and Section 24 of R.A. No. 7076, which confer upon respondents DENR and the DENR Secretary the power of control are unconstitutional, as the Constitution states that the President (and Executive Departments and her alter-egos)
47
has the power of supervision only, not control, over acts of the local government units, and grants the local government units autonomy, thus:
The 1987 Constitution:
Article X, Section 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.27
Petitioner contends that the policy in the above-cited constitutional provision is mirrored in the Local Government Code, which states:
SEC. 25. National Supervision over Local Government Units. - (a) Consistent with the basic policy on local autonomy, the President shall exercise general supervision over local government units to ensure that their acts are within the scope of their prescribed powers and functions.
The President shall exercise supervisory authority directly over provinces, highly urbanized cities, and independent component cities; through the province with respect to component cities and municipalities; and through the city and municipality with respect to barangays.28
Petitioner contends that the foregoing provisions of the Constitution and the Local Government Code of 1991 show that the relationship between the President and the Provinces or respondent DENR, as the alter ego of the President, and the Province of Bulacan is one of executive supervision, not one of executive control. The term "control" has been defined as the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his/her duties and to substitute the judgment of the former for the latter, while the term "supervision" is the power of a superior officer to see to it that lower officers perform their function in accordance with law.29
Petitioner argues that respondent DENR Secretary went beyond mere executive supervision and exercised control when he nullified the small-scale mining permits granted by the Provincial Governor of Bulacan, as the former substituted the judgment of the latter.
Petitioner asserts that what is involved here is a devolved power.
Under the Local Government Code of 1991, the power to regulate small-scale mining has been devolved to all provinces. In the exercise of devolved powers, departmental approval is not necessary.30
Petitioner contends that if the provisions in Section 24 of R.A. No. 7076 and Section 17 (b)(3)(iii) of the Local Government Code of 1991 granting the power of control to the DENR/DENR Secretary are not nullified, nothing would stop the DENR Secretary from nullifying, voiding and canceling the small-scale mining permits that have been issued by a Provincial Governor.
Petitioner submits that the statutory grant of power of control to respondents is unconstitutional, as the Constitution only allows supervision over local governments and proscribes control by the executive departments.
In its Comment, respondents, represented by the Office of the Solicitor General, stated that contrary to the assertion of petitioner, the power to implement the small-scale mining law is expressly limited in Section 17 (b)(3)(iii) of the Local Government Code, which provides that it must be carried out "pursuant to national policies and subject to supervision, control and review of the DENR." Moreover, the fact that the power to implement the small-scale mining law has not been fully devolved to provinces is further amplified by Section 4 of the People's Small-Scale Mining Act of 1991, which provides, among others, that the People's Small-Scale Mining Program shall be implemented by the DENR Secretary.
The petition lacks merit.
Paragraph 1 of Section 2, Article XII (National Economy and Patrimony) of the Constitution31 provides that "the exploration, development and utilization of natural resources shall be under the full control and supervision of the State."
Moreover, paragraph 3 of Section 2, Article XII of the Constitution provides that "the Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens x x x."
Pursuant to Section 2, Article XII of the Constitution, R.A. No. 7076 or the People's Small-Scale Mining Act of 1991, was enacted, establishing under Section 4 thereof a People's Small-Scale Mining Program to be implemented by the DENR Secretary in coordination with other concerned government agencies.
The People's Small-Scale Mining Act of 1991 defines "small-scale mining" as "refer[ring] to mining activities, which rely heavily on manual labor using simple implement and methods and do not use explosives or heavy mining equipment."32
It should be pointed out that the Administrative Code of 198733 provides that the DENR is, subject to law and higher authority, in charge of carrying out the State's constitutional mandate, under Section 2, Article XII of the Constitution, to control and supervise the exploration, development, utilization and conservation of the
48
country's natural resources. Hence, the enforcement of small-scale mining law in the provinces is made subject to the supervision, control and review of the DENR under the Local Government Code of 1991, while the People’s Small-Scale Mining Act of 1991 provides that the People’s Small-Scale Mining Program is to be implemented by the DENR Secretary in coordination with other concerned local government agencies.
Indeed, Section 4, Article X (Local Government) of the Constitution states that "[t]he President of the Philippines shall exercise general supervision over local governments," and Section 25 of the Local Government Code reiterates the same. General supervision by the President means no more than seeing to it that laws are faithfully executed or that subordinate officers act within the law.34
The Court has clarified that the constitutional guarantee of local autonomy in the Constitution Art. X, Sec. 2 refers to the administrative autonomy of local government units or, cast in more technical language, the decentralization of government authority.35 It does not make local governments sovereign within the State.36 Administrative autonomy may involve devolution of powers, but subject to limitations like following national policies or standards,37 and those provided by the Local Government Code, as the structuring of local governments and the allocation of powers, responsibilities, and resources among the different local government units and local officials have been placed by the Constitution in the hands of Congress38 under Section 3, Article X of the Constitution.
Section 3, Article X of the Constitution mandated Congress to "enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units."
In connection with the enforcement of the small-scale mining law in the province, Section 17 of the Local Government Code provides:
SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government units shall likewise exercise such other powers and discharge such other functions and responsibilities as are necessary, appropriate, or incidental to efficient and effective provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, the following:
x x x x
(3) For a Province:c
x x x x
(iii) Pursuant to national policies and subject to supervision, control and review of the DENR, enforcement of forestry laws limited to community-based forestry projects, pollution control law, small-scale mining law, and other laws on the protection of the environment; and mini-hydro electric projects for local purposes;39
Clearly, the Local Government Code did not fully devolve the enforcement of the small-scale mining law to the provincial government, as its enforcement is subject to the supervision, control and review of the DENR, which is in charge, subject to law and higher authority, of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization of the country's natural resources.40
Section 17 (b)(3)(iii) of the Local Government Code of 1991 is in harmony with R.A. No. 7076 or the People's Small-Scale Mining Act of 1991,41 which established a People's Small-Scale Mining Program to be implemented by the Secretary of the DENR, thus:
Sec. 2. Declaration of Policy. – It is hereby declared of the State to promote, develop, protect and rationalize viable small-scale mining activities in order to generate more employment opportunities and provide an equitable sharing of the nation's wealth and natural resources, giving due regard to existing rights as herein provided.
x x x x
Sec. 4. People's Small-Scale Mining Program. - For the purpose of carrying out the declared policy provided in Section 2 hereof, there is hereby established a People's Small-Scale Mining Program to be implemented by the Secretary of the Department of Environment and Natural Resources, hereinafter called the Department, in coordination with other concerned government agencies, designed to achieve an orderly, systematic and rational scheme for the small-scale development and utilization of mineral resources in certain mineral areas in order to address the social, economic, technical, and environmental problems connected with small-scale mining activities.
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x x x x
Sec. 24. Provincial/City Mining Regulatory Board. – There is hereby created under the direct supervision and control of the Secretary a provincial/city mining regulatory board, herein called the Board, which shall be the implementing agency of the Department, and shall exercise the following powers and functions, subject to review by the Secretary:
(a) Declare and segregate existing gold-rush areas for small-scale mining;
(b) Reserve future gold and other mining areas for small-scale mining;
(c) Award contracts to small-scale miners;
(d) Formulate and implement rules and regulations related to small-scale mining;
(e) Settle disputes, conflicts or litigations over conflicting claims within a people’s small-scale mining area, an area that is declared a small-mining; and
(f) Perform such other functions as may be necessary to achieve the goals and objectives of this Act.42
DENR Administrative Order No. 34, series of 1992, containing the Rules and Regulations to implement R.A. No. 7076, provides:
SEC. 21. Administrative Supervision over the People's Small-Scale Mining Program. − The following DENR officials shall exercise the following supervisory functions in the implementation of the Program:
21.1 DENR Secretrary – direct supervision and control over the program and activities of the small-scale miners within the people's small-scale mining area;
21.2 Director − the Director shall:
a. Recommend the depth or length of the tunnel or adit taking into account the: (1) size of membership and capitalization of the cooperative; (2) size of mineralized areas; (3) quantity of mineral deposits; (4) safety of miners; and (5) environmental impact and other considerations;
b. Determine the right of small-scale miners to existing facilities in consultation with the operator, claimowner, landowner or lessor of an affected area upon declaration of a small-scale mining area;
c. Recommend to the Secretary the withdrawal of the status of the people's small-scale mining area when it can no longer be feasibly operated on a small-scale basis; and
d. See to it that the small-scale mining contractors abide by small-scale mines safety rules and regulations.
x x x x
SEC. 22. Provincial/City Mining Regulatory Board. − The Provincial/City Mining Regulatory Board created under R.A. 7076 shall exercise the following powers and functions, subject to review by the Secretary:
22.1 Declares and segregates existing gold rush area for small-scale mining;
22.2 Reserves for the future, mineralized areas/mineral lands for people's small-scale mining;
22.3 Awards contracts to small-scale miners’ cooperative;
22.4 Formulates and implements rules and regulations related to R.A. 7076;
22.5 Settles disputes, conflicts or litigations over conflicting claims within ninety (90) days upon filing of protests or complaints; Provided, That any aggrieved party may appeal within five (5) days from the Board's decision to the Secretary for final resolution otherwise the same is considered final and executory; and
22.6 Performs such other functions as may be necessary to achieve the goals and objectives of R.A. 7076.
SEC. 6. Declaration of People's Small-Scale Mining Areas. – The Board created under R.A. 7076 shall have the authority to declare and set aside People's Small-Scale Mining Areas in sites onshore suitable for small-scale mining operations subject to review by the DENR Secretary thru the Director.43
DENR Administrative Order No. 23, otherwise known as the Implementing Rules and Regulations of R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995, adopted on August 15, 1995, provides under Section 12344 thereof that small-scale mining applications should be filed with the PMRB45 and the corresponding permits shall be issued by the Provincial Governor, except small-scale mining applications within the mineral reservations.
Thereafter, DENR Administrative Order No. 96-40, otherwise known as the Revised Implementing Rules and Regulations of R.A. No. 7942, otherwise known as the
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Philippine Mining Act of 1995, adopted on December 19, 1996, provides that applications for Small-Scale Mining Permits shall be filed with the Provincial Governor/City Mayor through the concerned Provincial/City Mining Regulatory Board for areas outside the Mineral Reservations and with the Director though the Bureau for areas within the Mineral Reservations.46 Moreover, it provides that Local Government Units shall, in coordination with the Bureau/ Regional Offices and subject to valid and existing mining rights, "approve applications for small-scale mining, sand and gravel, quarry x x x and gravel permits not exceeding five (5) hectares."47
Petitioner contends that the Local Government Code of 1991, R.A. No. 7076, DENR Administrative Orders Nos. 95-23 and 96-40 granted the DENR Secretary the broad statutory power of control, but did not confer upon the respondents DENR and DENR Secretary the power to reverse, abrogate, nullify, void, cancel the permits issued by the Provincial Governor or small-scale mining contracts entered into by the Board.
The contention does not persuade.
The settlement of disputes over conflicting claims in small-scale mining is provided for in Section 24 of R.A. No. 7076, thus:
Sec. 24. Provincial/City Mining Regulatory Board. − There is hereby created under the direct supervision and control of the Secretary a provincial/city mining regulatory board, herein called the Board, which shall be the implementing agency of the Department, and shall exercise the following powers and functions, subject to review by the Secretary:
x x x x
(e) Settle disputes, conflicts or litigations over conflicting claims within a people's small-scale mining area, an area that is declared a small mining area; x x x
Section 24, paragraph (e) of R.A. No. 7076 cited above is reflected in Section 22, paragraph 22.5 of the Implementing Rules and Regulations of R.A. No. 7076, to wit:
SEC. 22. Provincial/City Mining Regulatory Board. – The Provincial/City Mining Regulatory Board created under R.A. No. 7076 shall exercise the following powers and functions, subject to review by the Secretary:
x x x x
22.5 Settles disputes, conflicts or litigations over conflicting claims within ninety (90) days upon filing of protests or complaints; Provided, That any aggrieved party
may appeal within five (5) days from the Board's decision to the Secretary for final resolution otherwise the same is considered final and executory; x x x
In this case, in accordance with Section 22, paragraph 22.5 of the Implementing Rules and Regulations of R.A. No. 7076, the AMTC filed on July 22, 2005 with the PMRB of Bulacan a formal protest against the Applications for Quarry Permits of Eduardo Mercado, Benedicto Cruz, Liberato Sembrano (replaced by Lucila Valdez) and Gerardo Cruz on the ground that the subject area was already covered by its Application for Exploration Permit.48 However, on August 8, 2005, the PMRB issued Resolution Nos. 05-8, 05-9, 05-10 and 05-11, resolving to submit to the Provincial Governor of Bulacan the Applications for Small-Scale Mining Permits of Eduardo Mercado, Benedicto Cruz, Lucila Valdez and Gerardo Cruz for the granting/issuance of the said permits.49 On August 10, 2005, the Provincial Governor of Bulacan issued the Small-Scale Mining Permits to Eduardo Mercado, Benedicto Cruz, Lucila Valdez and Gerardo Cruz based on the legal opinion of the Provincial Legal Officer and the Resolutions of the PMRB of Bulacan.
Hence, AMTC filed an appeal with respondent DENR Secretary, appealing from Letter-Resolution No. 05-1317 and Resolution Nos. 05-08, 05-09, 05-10 and 05-11, all dated August 8, 2005, of the PMRB of Bulacan, which resolutions gave due course and granted, on August 10, 2005, Small-Scale Mining Permits to Eduardo D. Mercado, Benedicto S. Cruz, Lucila Valdez and Gerardo Cruz involving parcels of mineral land situated at Camachin, Doña Remedios Trinidad, Bulacan.
The PMRB of Bulacan filed its Answer, stating that it is an administrative body, created under R.A. No. 7076, which cannot be equated with the court wherein a full-blown hearing could be conducted, but it is enough that the parties were given the opportunity to present evidence. It asserted that the questioned resolutions it issued were in accordance with the mining laws and that the Small-Scale Mining Permits granted were registered ahead of AMTC's Application for Exploration Permit. Further, the Board stated that the Governor of Bulacan had the power to approve the Small-Scale Mining Permits under R.A. No. 7160.
The DENR Secretary found the appeal meritorious, and resolved these pivotal issues: (1) when is the subject mining area open for mining location by other applicants; and (2) who among the applicants have valid applications.1âwphi1 The pertinent portion of the decision of the DENR Secretary reads:
We agree with the ruling of the MGB Director that the area is open only to mining location on August 11, 2004, fifteen (15) days after the receipt by Golden Falcon on July 27, 2004 of a copy of the subject Order of July 16, 2004.1âwphi1 The filing by Golden Falcon of the letter-appeal suspended the finality of the Order of Denial issued on April 29, 1998 by the Regional Director until the Resolution thereof on July 16, 2004.
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Although the subject AQPs/SSMPs were processed in accordance with the procedures of the PMRB, however, the AQPs were filed on February 10, 2004 when the area is still closed to mining location. Consequently, the SSMPs granted by the PMRB and the Governor are null and void making thereby AEP No. III-02-04 of the AMTC valid, it having been filed when the area is already open to other mining applicants.
Records also show that the AQPs were converted into SSMPs. These are two (2) different applications. The questioned SSMPs were issued in violation of Section 4 of RA 7076 and beyond the authority of the Provincial Governor pursuant to Section 43 of RA 7942 because the area was never proclaimed as "People's Small-Scale Mining Program." Moreover, iron ore mineral is not considered among the quarry resources.
x x x x
WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of Atlantic Mines and Trading Corp. is declared valid and may now be given due course. The Small-Scale Mining Permits, SSMP-B-002-05 of Gerardo Cruz, SSMP-B-003-05 of Eduardo D. Mercado, SSMP-B-004-05 of Benedicto S. Cruz and SSMP-B-005-05 of Lucila S. Valdez are declared NULL AND VOID. Consequently, the said permits are hereby CANCELLED.50
The Court finds that the decision of the DENR Secretary was rendered in accordance with the power of review granted to the DENR Secretary in the resolution of disputes, which is provided for in Section 24 of R.A. No. 707651 and Section 22 of its Implementing Rules and Regulations.52 It is noted that although AMTC filed a protest with the PMRB regarding its superior and prior Application for Exploration Permit over the Applications for Quarry Permit, which were converted to Small-Scale Mining Permits, the PMRB did not resolve the same, but issued Resolution Nos. 05-08 to 05-11 on August 8, 2005, resolving to submit to the Provincial Governor of Bulacan the Applications for Small-Scale Mining Permits of Eduardo Mercado, Benedicto Cruz, Lucila Valdez and Gerardo Cruz for the granting of the said permits. After the Provincial Governor of Bulacan issued the Small-Scale Mining Permits on August 10, 2005, AMTC appealed the Resolutions of the PMRB giving due course to the granting of the Small-Scale Mining Permits by the Provincial Governor.
Hence, the decision of the DENR Secretary, declaring that the Application for Exploration Permit of AMTC was valid and may be given due course, and canceling the Small-Scale Mining Permits issued by the Provincial Governor, emanated from the power of review granted to the DENR Secretary under R.A. No. 7076 and its Implementing Rules and Regulations. The DENR Secretary's power to review and,
therefore, decide, in this case, the issue on the validity of the issuance of the Small-Scale Mining Permits by the Provincial Governor as recommended by the PMRB, is a quasi-judicial function, which involves the determination of what the law is, and what the legal rights of the contending parties are, with respect to the matter in controversy and, on the basis thereof and the facts obtaining, the adjudication of their respective rights.53 The DENR Secretary exercises quasi-judicial function under R.A. No. 7076 and its Implementing Rules and Regulations to the extent necessary in settling disputes, conflicts or litigations over conflicting claims. This quasi-judicial function of the DENR Secretary can neither be equated with "substitution of judgment" of the Provincial Governor in issuing Small-Scale Mining Permits nor "control" over the said act of the Provincial Governor as it is a determination of the rights of AMTC over conflicting claims based on the law.
In determining whether Section 17 (b)(3)(iii) of the Local Government Code of 1991 and Section 24 of R.A. No. 7076 are unconstitutional, the Court has been guided by Beltran v. The Secretary of Health, 54 which held:
The fundamental criterion is that all reasonable doubts should be resolved in favor of the constitutionality of a statute. Every law has in its favor the presumption of constitutionality. For a law to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution. The ground for nullity must be clear and beyond reasonable doubt. Those who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis therefor. Otherwise, the petition must fail. 55
In this case, the Court finds that the grounds raised by petitioner to challenge the constitutionality of Section 17 (b )(3)(iii) of the Local Government Code of 1991 and Section 24 'of R.A. No.7076 failed to overcome the constitutionality of the said provisions of law.
WHEREFORE, the petition is DISMISSED for lack of merit.
52
SUPREME COURTManila
EN BANC
G.R. No. 193237 October 9, 2012
DOMINADOR G. JALOSJOS, JR., Petitioner,vs.COMMISSION ON ELECTIONS and AGAPITO J. CARDINO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 193536
AGAPITO J. CARDINO, Petitioner,vs.DOMINADOR G. JALOSJOS, JR., and COMMISSION ON ELECTIONS, Respondents.
D E C I S I O N
CARPIO, J.:
These are two special civil actions for certiorari1 questioning the resolutions of the Commission on Elections (COMELEC) in SPA No. 09-076 (DC). In G.R. No. 193237, Dominador G. Jalosjos, Jr. (Jalosjos) seeks to annul the 10 May 2010 Resolution2 of the COMELEC First Division and the 11 August 2010 Resolution3 of the COMELEC En Banc, which both ordered the cancellation of his certificate of candidacy on the ground of false material representation. In G.R. No. 193536, Agapito J. Cardino (Cardino) challenges the 11 August 2010 Resolution of the COMELEC En Banc, which applied the rule on succession under the Local Government Code in filling the vacancy in the Office of the Mayor of Dapitan City, Zamboanga del Norte created by the cancellation of Jalosjos’ certificate of candidacy.
The Facts
Both Jalosjos and Cardino were candidates for Mayor of Dapitan City, Zamboanga del Norte in the May 2010 elections. Jalosjos was running for his third term. Cardino filed on 6 December 2009 a petition under Section 78 of the Omnibus Election Code to deny due course and to cancel the certificate of candidacy of Jalosjos. Cardino asserted that Jalosjos made a false material representation in his certificate of candidacy when he declared under oath that he was eligible for the Office of Mayor.
Cardino claimed that long before Jalosjos filed his certificate of candidacy, Jalosjos had already been convicted by final judgment for robbery and sentenced to prisión mayor by the Regional Trial Court, Branch 18 (RTC) of Cebu City, in Criminal Case No. CCC-XIV-140-CEBU. Cardino asserted that Jalosjos has not yet served his sentence. Jalosjos admitted his conviction but stated that he had already been granted probation. Cardino countered that the RTC revoked Jalosjos’ probation in an Order dated 19 March 1987. Jalosjos refuted Cardino and stated that the RTC issued an Order dated 5 February 2004 declaring that Jalosjos had duly complied with the order of probation. Jalosjos further stated that during the 2004 elections the COMELEC denied a petition for disqualification filed against him on the same grounds.4
The COMELEC En Banc narrated the circumstances of Jalosjos’ criminal record as follows:
As backgrounder, Jalosjos and three (3) others were accused of the crime of robbery on January 22, 1969 in Cebu City. On April 30, 1970, Judge Francisco Ro. Cupin of the then Circuit Criminal Court of Cebu City found him and his co-accused guilty of robbery and sentenced them to suffer the penalty of prision correccional minimum to prision mayor maximum. Jalosjos appealed this decision to the Court of Appeals but his appeal was dismissed on August 9, 1973. It was only after a lapse of several years or more specifically on June 17, 1985 that Jalosjos filed a Petition for Probation before the RTC Branch 18 of Cebu City which was granted by the court. But then, on motion filed by his Probation Officer, Jalosjos’ probation was revoked by the RTC Cebu City on March 19, 1987 and the corresponding warrant for his arrest was issued. Surprisingly, on December 19, 2003, Parole and Probation Administrator Gregorio F. Bacolod issued a Certification attesting that respondent Jalosjos, Jr., had already fulfilled the terms and conditions of his probation. This Certification was the one used by respondent Jalosjos to secure the dismissal of the disqualification case filed against him by Adasa in 2004, docketed as SPA No. 04-235.
This prompted Cardino to call the attention of the Commission on the decision of the Sandiganbayan dated September 29, 2008 finding Gregorio F. Bacolod, former Administrator of the Parole and Probation Administration, guilty of violating Section 3(e) of R.A. 3019 for issuing a falsified Certification on December 19, 2003 attesting to the fact that respondent Jalosjos had fully complied with the terms and conditions of his probation. A portion of the decision of the Sandiganbayan is quoted hereunder:
The Court finds that the above acts of the accused gave probationer Dominador Jalosjos, Jr., unwarranted benefits and advantage because the subject certification, which was issued by the accused without adequate or official support, was subsequently utilized by the said probationer as basis of the Urgent Motion for
53
Reconsideration and to Lift Warrant of Arrest that he filed with the Regional Trial Court of Cebu City, which prompted the said court to issue the Order dated February 5, 2004 in Crim. Case No. CCC-XIV-140-CEBU, declaring that said probationer has complied with the order of probation and setting aside its Order of January 16, 2004 recalling the warrant or [sic] arrest; and that said Certification was also used by the said probationer and became the basis for the Commission on Elections to deny in its Resolution of August 2, 2004 the petition or [sic] private complainant James Adasa for the disqualification of the probationer from running for re-election as Mayor of Dapitan City in the National and Local Elections of 2004.5
The COMELEC’s Rulings
On 10 May 2010, the COMELEC First Division granted Cardino’s petition and cancelled Jalosjos’ certificate of candidacy. The COMELEC First Division concluded that "Jalosjos has indeed committed material misrepresentation in his certificate of candidacy when he declared, under oath, that he is eligible for the office he seeks to be elected to when in fact he is not by reason of a final judgment in a criminal case, the sentence of which he has not yet served."6 The COMELEC First Division found that Jalosjos’ certificate of compliance of probation was fraudulently issued; thus, Jalosjos has not yet served his sentence. The penalty imposed on Jalosjos was the indeterminate sentence of one year, eight months and twenty days of prisión correccional as minimum, to four years, two months and one day of prisión mayor as maximum. The COMELEC First Division ruled that Jalosjos "is not eligible by reason of his disqualification as provided for in Section 40(a) of Republic Act No. 7160."7
On 11 August 2010, the COMELEC En Banc denied Jalosjos’ motion for reconsideration. The pertinent portions of the 11 August 2010 Resolution read:
With the proper revocation of Jalosjos’ earlier probation and a clear showing that he has not yet served the terms of his sentence, there is simply no basis for Jalosjos to claim that his civil as well as political rights have been violated. Having been convicted by final judgment,
Jalosjos is disqualified to run for an elective position or to hold public office. His proclamation as the elected mayor in the May 10, 2010 election does not deprive the Commission of its authority to resolve the present petition to its finality, and to oust him from the office he now wrongfully holds.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is denied for utter lack of merit. Jalosjos is hereby OUSTED from office and ordered to CEASE and DESIST from occupying and discharging the functions of the Office of the Mayor of Dapitan City, Zamboanga. Let the provisions of the Local Government Code on succession apply.
SO ORDERED.8
Jalosjos filed his petition on 25 August 2010, docketed as G.R. No. 193237, while Cardino filed his petition on 17 September 2010, docketed as G.R. No. 193536.
On 22 February 2011, this Court issued a Resolution dismissing G.R. No. 193237.
WHEREFORE, the foregoing premises considered, the Petition for Certiorari is DISMISSED. The assailed Resolution dated May 10, 2010 and Resolution dated August 11, 2010 of the Commission on Elections in SPA Case No. 09-076 (DC) are hereby AFFIRMED.9
Cardino filed a Manifestation on 17 March 2011 praying that this Court take judicial notice of its resolution in G.R. No. 193237. Jalosjos filed a Motion for Reconsideration10 on 22 March 2011. On 29 March 2011, this Court resolved11 to consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos then filed a Manifestation on 1 June 2012 which stated that "he has resigned from the position of Mayor of the City of Dapitan effective 30 April 2012, which resignation was accepted by the Provincial Governor of Zamboanga del Norte, Atty. Rolando E. Yebes."12 Jalosjos’ resignation was made "in deference with the provision of the Omnibus Election Code in relation to his candidacy as Provincial Governor of Zamboanga del Sur in May 2013."13
These cases are not rendered moot by Jalosjos’ resignation. In resolving Jalosjos’ Motion for Reconsideration in G.R. No. 193237 and Cardino’s Petition in G.R. No. 193536, we address not only Jalosjos’ eligibility to run for public office and the consequences of the cancellation of his certificate of candidacy, but also COMELEC’s constitutional duty to enforce and administer all laws relating to the conduct of elections.
The Issues
In G.R. No. 193237, Jalosjos argues that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it (1) ruled that Jalosjos’ probation was revoked; (2) ruled that Jalosjos was disqualified to run as candidate for Mayor of Dapitan City, Zamboanga del Norte; and (3) cancelled Jalosjos’ certificate of candidacy without making a finding that Jalosjos committed a deliberate misrepresentation as to his qualifications, as Jalosjos relied in good faith upon a previous COMELEC decision declaring him eligible for the same position from which he is now being ousted. Finally, the Resolutions dated 10 May 2010 and 11 August 2010 were issued in violation of the COMELEC Rules of Procedure.
54
In G.R. No. 193536, Cardino argues that the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it added to the dispositive portion of its 11 August 2010 Resolution that the provisions of the Local Government Code on succession should apply.
This Court’s Ruling
The perpetual special disqualification against Jalosjos arising from his criminal conviction by final judgment is a material fact involving eligibility which is a proper ground for a petition under Section 78 of the Omnibus Election Code. Jalosjos’ certificate of candidacy was void from the start since he was not eligible to run for any public office at the time he filed his certificate of candidacy. Jalosjos was never a candidate at any time, and all votes for Jalosjos were stray votes. As a result of Jalosjos’ certificate of candidacy being void ab initio, Cardino, as the only qualified candidate, actually garnered the highest number of votes for the position of Mayor.
The dissenting opinions affirm with modification the 10 May 2010 Resolution of the COMELEC First Division and the 11 August 2010 Resolution of the COMELEC En Banc. The dissenting opinions erroneously limit the remedy against Jalosjos to disqualification under Section 68 of the Omnibus Election Code and apply the rule on succession under the Local Government Code.
A false statement in a certificate of candidacy that a candidate is eligible to run for public office is a false material representation which is a ground for a petition under Section 78 of the same Code. Sections 74 and 78 read:
Sec. 74. Contents of certificate of candidacy. – The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge.
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be
filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (Emphasis supplied)
Section 74 requires the candidate to state under oath in his certificate of candidacy "that he is eligible for said office." A candidate is eligible if he has a right to run for the public office.14 If a candidate is not actually eligible because he is barred by final judgment in a criminal case from running for public office, and he still states under oath in his certificate of candidacy that he is eligible to run for public office, then the candidate clearly makes a false material representation that is a ground for a petition under Section 78.
A sentence of prisión mayor by final judgment is a ground for disqualification under Section 40 of the Local Government Code and under Section 12 of the Omnibus Election Code. It is also a material fact involving the eligibility of a candidate under Sections 74 and 78 of the Omnibus Election Code. Thus, a person can file a petition under Section 40 of the Local Government Code or under either Section 12 or Section 78 of the Omnibus Election Code. The pertinent provisions read:
Section 40, Local Government Code:
Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
Section 12, Omnibus Election Code:
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Sec. 12. Disqualifications. — Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he was sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified.
Section 68, Omnibus Election Code:
Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision by a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.
Revised Penal Code:
Art. 27. Reclusion perpetua. — x x x
Prisión mayor and temporary disqualification. — The duration of the penalties of prisión mayor and temporary disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification is imposed as an accessory penalty, in which case, it shall be that of the principal penalty.
x x x x
Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects:
1. The deprivation of the public offices and employments which the offender may have held, even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular elective office or to be elected to such office.
3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
Art. 31. Effects of the penalties of perpetual or temporary special disqualification. — The penalties of perpetual or temporary special disqualification for public office, profession or calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling affected.
2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence, according to the extent of such disqualification.
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification.
Art. 42. Prisión mayor — its accessory penalties. — The penalty of prisión mayor shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphasis supplied)
The penalty of prisión mayor automatically carries with it, by operation of law,15 the accessory penalties of temporary absolute disqualification and perpetual special disqualification. Under Article 30 of the Revised Penal Code, temporary absolute disqualification produces the effect of "deprivation of the right to vote in any election for any popular elective office or to be elected to such office." The duration
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of the temporary absolute disqualification is the same as that of the principal penalty. On the other hand, under Article 32 of the Revised Penal Code perpetual special disqualification means that "the offender shall not be permitted to hold any public office during the period of his disqualification," which is perpetually. Both temporary absolute disqualification and perpetual special disqualification constitute ineligibilities to hold elective public office. A person suffering from these ineligibilities is ineligible to run for elective public office, and commits a false material representation if he states in his certificate of candidacy that he is eligible to so run.
In Lacuna v. Abes,16 the Court, speaking through Justice J.B.L. Reyes, explained the import of the accessory penalty of perpetual special disqualification:
On the first defense of respondent-appellee Abes, it must be remembered that appellee’s conviction of a crime penalized with prisión mayor which carried the accessory penalties of temporary absolute disqualification and perpetual special disqualification from the right of suffrage (Article 42, Revised Penal Code); and Section 99 of the Revised Election Code disqualifies a person from voting if he had been sentenced by final judgment to suffer one year or more of imprisonment.
The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the right to vote, such disqualification to last only during the term of the sentence (Article 27, paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13 October 1961.
But this does not hold true with respect to the other accessory penalty of perpetual special disqualification for the exercise of the right of suffrage. This accessory penalty deprives the convict of the right to vote or to be elected to or hold public office perpetually, as distinguished from temporary special disqualification, which lasts during the term of the sentence. Article 32, Revised Penal Code, provides:
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of disqualification.
The word "perpetually" and the phrase "during the term of the sentence" should be applied distributively to their respective antecedents; thus, the word "perpetually" refers to the perpetual kind of special disqualification, while the phrase "during the term of the sentence" refers to the temporary special disqualification. The duration between the perpetual and the temporary (both special) are necessarily different
because the provision, instead of merging their durations into one period, states that such duration is "according to the nature of said penalty" — which means according to whether the penalty is the perpetual or the temporary special disqualification. (Emphasis supplied)
Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the convict of the right to vote or to be elected to or hold public office perpetually."
The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of conviction becomes final. The effectivity of this accessory penalty does not depend on the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The last sentence of Article 32 states that "the offender shall not be permitted to hold any public office during the period of his perpetual special disqualification." Once the judgment of conviction becomes final, it is immediately executory. Any public office that the convict may be holding at the time of his conviction becomes vacant upon finality of the judgment, and the convict becomes ineligible to run for any elective public office perpetually. In the case of Jalosjos, he became ineligible perpetually to hold, or to run for, any elective public office from the time his judgment of conviction became final.
Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election Code because this accessory penalty is an ineligibility, which means that the convict is not eligible to run for public office, contrary to the statement that Section 74 requires him to state under oath. As used in Section 74, the word "eligible" means having the right to run for elective public office, that is, having all the qualifications and none of the ineligibilities to run for public office. As this Court held in Fermin v. Commission on Elections,17 the false material representation may refer to "qualifications or eligibility." One who suffers from perpetual special disqualification is ineligible to run for public office. If a person suffering from perpetual special disqualification files a certificate of candidacy stating under oath that "he is eligible to run for (public) office," as expressly required under Section 74, then he clearly makes a false material representation that is a ground for a petition under Section 78. As this Court explained in Fermin:
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has
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already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate.18 (Emphasis supplied)
Conviction for robbery by final judgment with the penalty of prisión mayor, to which perpetual special disqualification attaches by operation of law, is not a ground for a petition under Section 68 because robbery is not one of the offenses enumerated in Section 68. Insofar as crimes are concerned, Section 68 refers only to election offenses under the Omnibus Election Code and not to crimes under the Revised Penal Code. For ready reference, we quote again Section 68 of the Omnibus Election Code:
Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision by a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Emphasis supplied)
There is absolutely nothing in the language of Section 68 that will justify including the crime of robbery as one of the offenses enumerated in this Section. All the offenses enumerated in Section 68 refer to offenses under the Omnibus Election Code. The dissenting opinion of Justice Reyes gravely errs when it holds that Jalosjos’ conviction for the crime of robbery under the Revised Penal Code is a ground for "a petition for disqualification under Section 68 of the OEC and not for cancellation of COC under Section 78 thereof." This Court has already ruled that offenses punished in laws other than in the Omnibus Election Code cannot be a ground for a petition under Section 68. In Codilla, Sr. v. de Venecia,19 the Court declared:
The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the Omnibus Election Code. All other election offenses
are beyond the ambit of COMELEC jurisdiction.They are criminal and not administrative in nature. (Emphasis supplied)
A candidate for mayor during the 2010 local elections certifies under oath four statements: (1) a statement that the candidate is a natural born or naturalized Filipino citizen; (2) a statement that the candidate is not a permanent resident of, or immigrant to, a foreign country; (3) a statement that the candidate is eligible for the office he seeks election; and (4) a statement of the candidate’s allegiance to the Constitution of the Republic of the Philippines.20
We now ask: Did Jalosjos make a false statement of a material fact in his certificate of candidacy when he stated under oath that he was eligible to run for mayor? The COMELEC and the dissenting opinions all found that Jalosjos was not eligible to run for public office. The COMELEC concluded that Jalosjos made a false material representation that is a ground for a petition under Section 78. The dissenting opinion of Justice Reyes, however, concluded that the ineligibility of Jalosjos is a disqualification which is a ground for a petition under Section 68 and not under Section 78. The dissenting opinion of Justice Brion concluded that the ineligibility of Jalosjos is a disqualification that is not a ground under Section 78 without, however, saying under what specific provision of law a petition against Jalosjos can be filed to cancel his certificate of candidacy.
What is indisputably clear is that the false material representation of Jalosjos is a ground for a petition under Section 78. However, since the false material representation arises from a crime penalized by prisión mayor, a petition under Section 12 of the Omnibus Election Code or Section 40 of the Local Government Code can also be properly filed. The petitioner has a choice whether to anchor his petition on Section 12 or Section 78 of the Omnibus Election Code, or on Section 40 of the Local Government Code. The law expressly provides multiple remedies and the choice of which remedy to adopt belongs to the petitioner.
The COMELEC properly cancelled Jalosjos’ certificate of candidacy. A void certificate of candidacy on the ground of ineligibility that existed at the time of the filing of the certificate of candidacy can never give rise to a valid candidacy, and much less to valid votes.21 Jalosjos’ certificate of candidacy was cancelled because he was ineligible from the start to run for Mayor. Whether his certificate of candidacy is cancelled before or after the elections is immaterial because the cancellation on such ground means he was never a valid candidate from the very beginning, his certificate of candidacy being void ab initio. Jalosjos’ ineligibility existed on the day he filed his certificate of candidacy, and the cancellation of his certificate of candidacy retroacted to the day he filed it. Thus, Cardino ran unopposed. There was only one qualified candidate for Mayor in the May 2010 elections – Cardino – who received the highest number of votes.
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Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer is disqualified or declared ineligible22 should be limited to situations where the certificate of candidacy of the first-placer was valid at the time of filing but subsequently had to be cancelled because of a violation of law that took place, or a legal impediment that took effect, after the filing of the certificate of candidacy. If the certificate of candidacy is void ab initio, then legally the person who filed such void certificate of candidacy was never a candidate in the elections at any time. All votes for such non-candidate are stray votes and should not be counted. Thus, such non-candidate can never be a first-placer in the elections. If a certificate of candidacy void ab initio is cancelled on the day, or before the day, of the election, prevailing jurisprudence holds that all votes for that candidate are stray votes.23 If a certificate of candidacy void ab initio is cancelled one day or more after the elections, all votes for such candidate should also be stray votes because the certificate of candidacy is void from the very beginning. This is the more equitable and logical approach on the effect of the cancellation of a certificate of candidacy that is void ab initio. Otherwise, a certificate of candidacy void ab initio can operate to defeat one or more valid certificates of candidacy for the same position.
Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or under Section 40 of the Local Government Code, the COMELEC is under a legal duty to cancel the certificate of candidacy of anyone suffering from the accessory penalty of perpetual special disqualification to run for public office by virtue of a final judgment of conviction. The final judgment of conviction is notice to the COMELEC of the disqualification of the convict from running for public office. The law itself bars the convict from running for public office, and the disqualification is part of the final judgment of conviction. The final judgment of the court is addressed not only to the Executive branch, but also to other government agencies tasked to implement the final judgment under the law.
Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification, it is assumed that the portion of the final judgment on disqualification to run for elective public office is addressed to the COMELEC because under the Constitution the COMELEC is duty bound to "enforce and administer all laws and regulations relative to the conduct of an election."24 The disqualification of a convict to run for public office under the Revised Penal Code, as affirmed by final judgment of a competent court, is part of the enforcement and administration of "all laws" relating to the conduct of elections.
To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of one suffering from perpetual special disqualification will result in the anomaly that these cases so grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos was elected and served twice as mayor. The COMELEC will be grossly remiss in its constitutional duty to "enforce and administer all laws" relating to the conduct of elections if it does not motu proprio
bar from running for public office those suffering from perpetual special disqualification by virtue of a final judgment.
WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and the Petition in G.R. No. 193536 is GRANTED. The Resolutions dated 10 May 2010 and 11 August 2010 of the COMELEC First Division and the COMELEC En Bane, respectively, in SPA No. 09-076 (DC), are AFFIRMED with the MODIFICATION that Agapito J. Cardino ran unopposed in the May 2010 elections and thus received the highest number of votes for Mayor. The COMELEC En Bane is DIRECTED to constitute a Special City Board of Canvassers to proclaim Agapito J. Cardino as the duly elected Mayor of Dapitan City, Zamboanga del Norte.
Let copies of this Decision be furnished the Secretaries of the Department of Justice and the Department of Interior and Local Government so they can cause the arrest of, and enforce the jail sentence on, Dominador G. Jalosjos, Jr. due to his conviction for the crime of robbery in a final judgment issued by the Regional Trial Court (Branch 18) of Cebu City in Criminal Case No. CCC-XIV-140-CEBU.
SO ORDERED.
ANTONIO T. CARPIO
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SUPREME COURTManila
EN BANC
G.R. No. 193314 February 26, 2013
SVETLANA P. JALOSJOS, Petitioner,vs.COMMISSION ON ELECTIONS, EDWIN ELIM TUMPAG and RODOLFO Y. ESTRELLADA, Respondents.
D E C I S I O N
SERENO, J.:
Svetlana P. Jalosjos (petitioner) comes before this Court on a Petition for Review under Rule 64 with an extremely urgent application for the issuance of a status quo order and for the conduct of a special raffle, 1 assailing the 04 June 20102 and 19 August 20103 Resolutions in SPA No. 09-161 (DC) of the Commission on Elections (respondent COMELEC). These Resolutions granted the Petition to Deny Due Course to or Cancel the Certificate of Candidacy filed by Edwin Elim Tumpag and Rodolfo Y. Estrellada (private respondents) against petitioner. At the heart of this controversy is whether petitioner complied with the one-year residency requirement for local elective officials.
On 20 November 2009, petitioner filed her Certificate of Candidacy (CoC) for mayor of Baliangao, Misamis Occidental for the 10 May 2010 elections. She indicated therein her place of birth and residence as Barangay Tugas, Municipality of Baliangao, Misamis Occidental (Brgy. Tugas).
Asserting otherwise, private respondents filed against petitioner a Petition to Deny Due Course to or Cancel the Certificate of Candidacy, in which they argued that she had falsely represented her place of birth and residence, because she was in fact born in San Juan, Metro Manila, and had not totally abandoned her previous domicile, Dapitan City.4 To support this claim, they presented the following as evidence:
1. Certification from the Assessor’s Office of Baliangao that there was no tax declaration covering any real property in the name of petitioner located at any place in the municipality;5
2. Certification from the Civil Registrar of Baliangao that petitioner had no record of birth in the civil registry of the municipality;6
3. Joint Affidavit of three residents of Baliangao – incumbent Barangay Chairperson Gregorio P. Gayola (Gayola) and incumbent 3rd Kagawad Felicisimo T. Pastrano (Pastrano), both officials of Barangay Tugas, Baliangao, Misamis Occidental, and former police officer Adolfo L. Alcoran (Alcoran);7
4. Affidavit of Patricio D. Andilab (Andilab), official of Purok 5, Brgy. Tugas, Baliangao.8
On the other hand, petitioner averred that she had established her residence in the said barangay since December 2008 when she purchased two parcels of land there, and that she had been staying in the house of a certain Mrs. Lourdes Yap (Yap) while the former was overseeing the construction of her house. Furthermore, petitioner asserted that the error in her place of birth was committed by her secretary. Nevertheless, in a CoC, an error in the declaration of the place of birth is not a material misrepresentation that would lead to disqualification, because it is not one of the qualifications provided by law.9 Petitioner presented the following evidence to sustain her claims:
1. Certificate of Live Birth;10
2. Extrajudicial Partition with Simultaneous Sale executed by the heirs of Agapito Yap, Jr. (Yap, Jr.) pertaining to two parcels of land covered by Transfer Certificate of Title (TCT) Nos. 12410 and P-33289 in favor of petitioner;11
3. TCT Nos. 12410 and P-33289 in the name of Yap, Jr.;12
4. Two Declarations of Real Property in the name of Yap, Jr.;13
5. Two sketch plans of lots covered by TCT Nos. 12410 and P-33289 prepared by the Office of the Provincial Assessor for Yap, Jr.;14
6. Photographs of the alleged residence of petitioner in Baliangao, Misamis Occidental;
7. Sketches of structures petitioner constructed in the resort she developed in Baliangao, Misamis Occidental;15
8. Petitioner’s Application for Voter’s Registration and Voter’s Certification issued by the Office of the Election Officer of Baliangao, Misamis Occidental;16
9. Petitioner’s CoC;17
10. Joint Affidavit of Rodolio R. Yap III (Yap III), Roger V. Villanueva (Villanueva), Romeo A. Duhaylungsod, Jr. (Duhaylungsod) and Dennis M.
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Estrellada (Estrellada), who undertook the construction and development of petitioner’s residential house and resort;18
11. Affidavit of incumbent Barangay Chairperson Marichu Michel Acas-Yap (Acas-Yap) of Barangay Punta Miray, Baliangao, Misamis Occidental (Brgy. Punta Miray);19
12. Affidavit of Nellie E. Jumawan (Jumawan), the president of the Center for Agriculture and Rural Development, Inc.;20
13. Affidavit of Dolores B. Medija (Medija), the president of Women for Children Association;21
14. Joint Affidavit of Emily J. Bagundol (Bagundol) and Nelia D. Colaljo (Colaljo), presidents of the Paglaum Multi-purpose Cooperative;22
15. Joint Affidavit of Charles C. Tenorio (Tenorio) and Reynold C. Analasan (Analasan), presidents of Tamban Multi-Purpose Cooperative and Balas Diut Brotherhood Association, respectively;23
16. Affidavit of Pedro Rio G. Bation (Bation), president of the Del Pilar Lawn Tennis Club of Baliangao;24
17. Affidavit of Jessie P. Maghilum (Maghilum), a member of the Phi Omega Sigma Fraternity/Sorority of Baliangao, Misamis Occidental Chapter;25 and
18. Affidavit of Ophelia P. Javier (Javier), petitioner’s personal secretary.26
The Petition to Deny Due Course to or Cancel the Certificate of Candidacy remained pending as of the day of the elections, in which petitioner garnered the highest number of votes. On 10 May 2010, the Municipal Board of Canvassers of Baliangao, Misamis Occidental, proclaimed her as the duly elected municipal mayor.27
On 04 June 2010, the COMELEC Second Division rendered a Resolution, the dispositive portion of which reads:
WHEREFORE, premises considered, respondent is DISQUALIFIED from running for the position of mayor in the Municipality of Baliangao, Misamis Occidental for this coming May 10, 2010 elections.28
The COMELEC En Banc promulgated a Resolution on 19 August 2010 denying the Motion for Reconsideration of petitioner for lack of merit and affirming the Resolution of the Second Division denying due course to or cancelling her CoC.
COMELEC Ruling
Respondent COMELEC ruled in its 04 June 2010 Resolution that misrepresentation as to one’s place of birth is not a ground for the cancellation of a CoC. Petitioner merely committed an oversight when she declared that she was born in Baliangao when she was actually born in San Juan. However, the COMELEC ruled that based on the evidence presented, petitioner never acquired a new domicile in Baliangao, because she failed to prove her bodily presence at that place, her intention to remain there, and her intention never to return to her domicile of origin. Hence, respondent COMELEC disqualified her from running for the position of mayor of Baliangao29 pursuant to Section 78 in relation to Section 74 of the Omnibus Election Code.30
In response to this adverse ruling, petitioner elevated her case through a Motion for Reconsideration before the COMELEC En Banc, arguing that the evidence she presented proved that she had established her domicile in the said municipality.31
Nonetheless, in its 19 August 2010 Resolution, respondent COMELEC affirmed the earlier ruling of the Second Division. In upholding the latter’s ruling, COMELEC En Banc said that (1) the Extrajudicial Partition with Simultaneous Sale was not sufficient proof that petitioner had purchased two parcels of land, because she was never a party to the agreement, and it was quite unusual that she never acquired a deed of sale or title to protect her interests; (2) the sketch plans were not signed by the corporate engineer who purportedly prepared them, nor was there an affidavit from the engineer to authenticate the plans; (3) the application of petitioner for voter registration only proved that she had met the minimum six-month residency requirement and nothing more; and (4) the affiants of the Sworn Statements were all partial, because they either worked for her or were members of organizations that received financial assistance from her.32
Hence, the instant Petition arguing that respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in holding that petitioner was not a resident of Baliangao, Misamis Occidental and in thus justifying the cancellation of her CoC. She also asserts that the 04 June 2010 and 19 August 2010 COMELEC Resolutions are null and void, being violative of her right to due process, because there was no promulgation or prior notice as required by Sec. 6 of COMELEC Resolution No. 8696 or by the Rules on Disqualification of Cases Filed in Connection with the 10 May 2010 Automated National and Local Elections.
In a Resolution dated 07 September 2010, we issued a Status Quo Ante Order, which required the parties to observe the status quo prevailing before the issuance of the assailed COMELEC Resolutions.33 Thereafter, the parties filed their respective pleadings.
Issues
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The issues before us can be summarized as follows:
I. Whether COMELEC committed grave abuse of discretion when it failed to promulgate its 04 June 2010 and 19 August 2010 Resolutions in accordance with its own Rules of Procedure; and
II. Whether COMELEC committed grave abuse of discretion in holding that petitioner had failed to prove compliance with the one-year residency requirement for local elective officials.
Our Ruling
COMELEC’s failure to serveadvance notice of the promulgationof the 04 June 2010 and 19 August2010 Resolutions does not invalidatethem.
Petitioner assails the validity of the 04 June 2010 and 19 August 2010 Resolutions, because she was not served an advance notice that these Resolutions were going to be promulgated. This failure was allegedly a violation of COMELEC Resolution No. 8696. Hence, she argues that her right to due process was violated. In response, respondent COMELEC asserts that it suspended COMELEC Resolution No. 8696 through an En Banc Order dated 04 May 2010.34 Furthermore, the suspension was in accordance with its power to promulgate its own rules as provided by the Constitution. Nevertheless, petitioner was afforded the opportunity to be heard and to submit evidence in support of her defense.
We agree with respondent COMELEC.
As stated by respondent COMELEC, Resolution No. 8696 was suspended through an Order dated 04 May 2010. However, assuming that this Resolution was still in effect, the failure to serve notice of the promulgation under Section 6 thereof did not make the 04 June 2010 and 19 August 2010 COMELEC Resolutions invalid. The Court held thus in Sabili v. COMELEC:35
In Lindo v. Commission on Elections,[49] petitioner claimed that there was no valid promulgation of a Decision in an election protest case when a copy thereof was merely furnished the parties, instead of first notifying the parties of a set date for the promulgation thereof, in accordance with Section 20 of Rule 35 of the COMELEC’s own Rules of Procedure, as follows:
Sec. 20. Promulgation and Finality of Decision. — The decision of the court shall be promulgated on a date set by it of which due notice must be given the parties. It shall become final five (5) days after promulgation. No motion for reconsideration shall be entertained.
Rejecting petitioner’s argument, we held therein that the additional rule requiring notice to the parties prior to promulgation of a decision is not part of the process of promulgation. Since lack of such notice does not prejudice the rights of the parties, noncompliance with this rule is a procedural lapse that does not vitiate the validity of the decision. Thus:
This contention is untenable. Promulgation is the process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel (Neria v. Commissioner of Immigration, L-24800, May 27, 1968, 23 SCRA 812). It is the delivery of a court decision to the clerk of court for filing and publication (Araneta v. Dinglasan, 84 Phil. 433). It is the filing of the signed decision with the clerk of court (Sumbing v. Davide, G.R. Nos. 86850-51, July 20, 1989, En Banc Minute Resolution). The additional requirement imposed by the COMELEC rules of notice in advance of promulgation is not part of the process of promulgation. Hence, We do not agree with petitioner’s contention that there was no promulgation of the trial court's decision. The trial court did not deny that it had officially made the decision public. From the recital of facts of both parties, copies of the decision were sent to petitioner's counsel of record and petitioner’s [sic] himself. Another copy was sent to private respondent.
What was wanting and what the petitioner apparently objected to was not the promulgation of the decision but the failure of the trial court to serve notice in advance of the promulgation of its decision as required by the COMELEC rules. The failure to serve such notice in advance of the promulgation may be considered a procedural lapse on the part of the trial court which did not prejudice the rights of the parties and did not vitiate the validity of the decision of the trial court nor [sic] of the promulgation of said decision.
Moreover, quoting Pimping v. COMELEC,[50] citing Macabingkil v. Yatco,[51] we further held in the same case that failure to receive advance notice of the promulgation of a decision is not sufficient to set aside the COMELEC’s judgment, as long as the parties have been afforded an opportunity to be heard before judgment is rendered, viz:
The fact that petitioners were not served notice in advance of the promulgation of the decision in the election protest cases, in Our view, does not constitute reversible error or a reason sufficient enough to compel and warrant the setting aside of the judgment rendered by the Comelec. Petitioners anchor their argument on an alleged
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denial to them [sic] due process to the deviation by the Comelec from its own made rules. However, the essence of due process is that, the parties in the case were afforded an opportunity to be heard.
In the present case, we read from the COMELEC Order that the exigencies attendant to the holding of the country’s first automated national elections had necessitated that the COMELEC suspend the rule on notice prior to promulgation, and that it instead direct the delivery of all resolutions to the Clerk of the Commission for immediate promulgation. Notably, we see no prejudice to the parties caused thereby. The COMELEC’s Order did not affect the right of the parties to due process. They were still furnished a copy of the COMELEC Decision and were able to reckon the period for perfecting an appeal. In fact, petitioner was able to timely lodge a Petition with this Court.
Clearly, the COMELEC validly exercised its constitutionally granted power to make its own rules of procedure when it issued the 4 May 2010 Order suspending Section 6 of COMELEC Resolution No. 8696. Consequently, the second assailed Resolution of the COMELEC cannot be set aside on the ground of COMELEC’s failure to issue to petitioner a notice setting the date of the promulgation thereto. (Emphases supplied)
Thus, even if COMELEC failed to give advance notice of the promulgation of the 04 June 2010 and 19 August 2010 Resolutions, its failure to do so did not invalidate them.
Petitioner failed to comply with theone-year residency requirement forlocal elective officials.
Petitioner’s uncontroverted domicile of origin is Dapitan City. The question is whether she was able to establish, through clear and positive proof, that she had acquired a domicile of choice in Baliangao, Misamis Occidental, prior to the May 2010 elections.
When it comes to the qualifications for running for public office, residence is synonymous with domicile. Accordingly, Nuval v. Guray36 held as follows:
The term ‘residence’ as so used, is synonymous with ‘domicile’ which imports not only intention to reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such intention.37
There are three requisites for a person to acquire a new domicile by choice. First, residence or bodily presence in the new locality. Second, an intention to remain there. Third, an intention to abandon the old domicile.38
These circumstances must be established by clear and positive proof, as held in Romualdez-Marcos v. COMELEC39 and subsequently in Dumpit- Michelena v. Boado:40
In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to continue. Only with evidence showing concurrence of all three requirements can the presumption of continuity or residence be rebutted, for a change of residence requires an actual and deliberate abandonment, and one cannot have two legal residences at the same time.41
Moreover, even if these requisites are established by clear and positive proof, the date of acquisition of the domicile of choice, or the critical date, must also be established to be within at least one year prior to the elections using the same standard of evidence.
In the instant case, we find that petitioner failed to establish by clear and positive proof that she had resided in Baliangao, Misamis Occidental, one year prior to the 10 May 2010 elections.
There were inconsistencies in the Affidavits of Acas-Yap, Yap III, Villanueva, Duhaylungsod, Estrellada, Jumawan, Medija, Bagundol, Colaljo, Tenorio, Analasan, Bation, Maghilum and Javier.
First, they stated that they personally knew petitioner to be an actual and physical resident of Brgy. Tugas since 2008. However, they declared in the same Affidavits that she stayed in Brgy. Punta Miray while her house was being constructed in Brgy. Tugas.
Second, construction workers Yap III, Villanueva, Duhaylungsod and Estrellada asserted that in December 2009, construction was still ongoing. By their assertion, they were implying that six months before the 10 May 2010 elections, petitioner had not yet moved into her house at Brgy. Tugas.
Third, the same construction workers admitted that petitioner only visited Baliangao occasionally when they stated that "at times when she (petitioner) was in Baliangao, she used to stay at the house of Lourdes Yap while her residential house was being constructed."42
These discrepancies bolster the statement of the Brgy. Tugas officials that petitioner was not and never had been a resident of their barangay. At most, the Affidavits of all the witnesses only show that petitioner was building and developing a beach resort and a house in Brgy. Tugas, and that she only stayed in Brgy. Punta Miray whenever she wanted to oversee the construction of the resort and the house.1âwphi1
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Assuming that the claim of property ownership of petitioner is true, Fernandez v. COMELEC43 has established that the ownership of a house or some other property does not establish domicile. This principle is especially true in this case as petitioner has failed to establish her bodily presence in the locality and her intent to stay there at least a year before the elections, to wit:
To use ownership of property in the district as the determinative indicium of permanence of domicile or residence implies that the landed can establish compliance with the residency requirement. This Court would be, in effect, imposing a property requirement to the right to hold public office, which property requirement would be unconstitutional.
Finally, the approval of the application for registration of petitioner as a voter only shows, at most, that she had met the minimum residency requirement as a voter.44 This minimum requirement is different from that for acquiring a new domicile of choice for the purpose of running for public office.
Accordingly, in the CoC of petitioner, her statement of her eligibility to run for office constitutes a material misrepresentation that warrants its cancellation.45 She contends that respondent COMELEC never made a finding that she had committed material misrepresentation. Her contention, however, is belied by its factual determination in its 04 June 2010 and 19 August 2010 Resolutions that she had failed to meet the one-year residency requirement.
During the pendency of the case, we deemed it proper to issue an Order dated 07 September 2010 directing the parties to observe the status quo before the issuance of these COMELEC Resolutions disqualifying petitioner from the mayoralty race in Baliangao. We issued the Order, considering that petitioner, having garnered the highest number of votes in the 10 May 2010 elections, had assumed office as municipal mayor. However, with this final determination of her ineligibility to run for office, there is now a permanent vacancy in the office of the mayor of Baliangao. Hence, the vice-mayor of Baliangao shall become its mayor in accordance with Section 44 of the Local Government Code.
WHEREFORE, premises considered, the Petition is DENIED. The Status Quo Ante Order issued by this Court on 07 September 2010 is hereby LIFTED.
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