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G.R. No. 135962
II.
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III.
IV.
V.
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units comprising Metro Manila." 26 There are seven (7) basic metro-wide services
and the scope of these services cover the following: (1) development planning; (2)
transport and traffic management; (3) solid waste disposal and management; (4)
flood control and sewerage management; (5) urban renewal, zoning and land use
planning, and shelter services; (6) health and sanitation, urban protection and
pollution control; and (7) public safety. The basic service of transport and traffic
management includes the following:
(b)
Transport
and
traffic
management
which
include
the
formulation, coordination, and monitoring of policies,standards, programs
and
projects
to
rationalize
the
existing
transport
operations, infrastructure requirements,the use of thoroughfares, and
promotion of safe and convenient movement of persons and
goods; provision for the mass transport system and the institution of a
system to regulate road users; administration and implementation of all
traffic enforcement operations, traffic engineering services and traffic
education programs, including the institution of a single ticketing system
in Metropolitan Manila;" 27
In the delivery of the seven (7) basic services, the MMDA has the following powers
and functions:
Sec. 5. Functions and powers of the Metro Manila Development Authority.
The MMDA shall:
(a) Formulate, coordinate and regulate the implementation of medium
and long-term plans and programs for the delivery of metro-wide
services, land use and physical development within Metropolitan
Manila, consistent with national development objectives and
priorities;
(b) Prepare, coordinate and regulate the implementation of mediumterm investment programs for metro-wide services which shall
indicate sources and uses of funds for priority programs and projects,
and which shall include the packaging of projects and presentation to
funding institutions;
(c) Undertake and manage on its own metro-wide programs and projects
for the delivery of specific services under its jurisdiction, subject to
the approval of the Council. For this purpose, MMDA can create
appropriate project management offices;
(d) Coordinate and monitor the implementation of such plans, programs
and projects in Metro Manila; identify bottlenecks and adopt solutions
to problems of implementation;
(e) The MMDA shall set the policies concerning traffic in Metro
Manila, and shall coordinate and regulate the implementation of all
programs and projects concerning traffic management, specifically
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(b) It shall approve metro-wide plans, programs and projects and issue
rules and regulations deemed necessary by the MMDA to carry out
the purposes of this Act;
(c) It may increase the rate of allowances and per diems of the members
of the Council to be effective during the term of the succeeding
Council. It shall fix the compensation of the officers and personnel of
the MMDA, and approve the annual budget thereof for submission to
the Department of Budget and Management (DBM);
(d) It shall promulgate rules and regulations and set policies and
standards for metro-wide application governing the delivery of basic
services, prescribe and collect service and regulatory fees, and
impose and collect fines and penalties.
Clearly, the scope of the MMDA's function is limited to the delivery of the seven (7)
basic services. One of these is transport and traffic management which includes
the formulation and monitoring of policies, standards and projects to rationalize
the existing transport operations, infrastructure requirements, the use of
thoroughfares and promotion of the safe movement of persons and goods. It also
covers the mass transport system and the institution of a system of road
regulation, the administration of all traffic enforcement operations, traffic
engineering services and traffic education programs, including the institution of a
single ticketing system in Metro Manila for traffic violations. Under the service, the
MMDA is expressly authorized "to set the policies concerning traffic" and
"coordinate and regulate the implementation of all traffic management programs."
In addition, the MMDA may "install and administer a single ticketing system," fix,
impose and collect fines and penalties for all traffic violations.
It will be noted that the powers of the MMDA are limited to the following acts:
formulation, coordination, regulation, implementation, preparation, management,
monitoring, setting of policies, installation of a system and administration. There is
no syllable in R.A. No. 7924 that grants the MMDA police power, let alone
legislative power.Even the Metro Manila Council has not been delegated any
legislative power. Unlike the legislative bodies of the local government units, there
is no provision in R.A. No. 7924 that empowers the MMDA or its Council to "enact
ordinances, approve resolutions appropriate funds for the general welfare" of the
inhabitants of Metro Manila. The MMDA is, as termed in the charter itself,
"development authority." 30 It is an agency created for the purpose of laying down
policies and coordinating with the various national government agencies, people's
organizations, non-governmental organizations and the private sector for the
efficient and expeditious delivery of basic services in the vast metropolitan
area. All its functions are administrative in nature and these are actually summed
up in the charter itself, viz:
Sec. 2. Creation of the Metropolitan Manila Development Authority.
....
The MMDA shall perform planning, monitoring and coordinative functions,
and in the process exerciseregulatory and supervisory authority over the
Sangalang v. IAC involved five (5) consolidated petitions filed by respondent BAVA
and three residents of Bel-Air Village against other residents of the Village and the
Ayala Corporation, formerly the Makati Development Corporation, as the developer
of the subdivision. The petitioners sought to enforce certain restrictive easements
in the deeds of sale over their respective lots in the subdivision. These were the
prohibition on the setting up of commercial and advertising signs on the lots, and
the condition that the lots be used only for residential purposes. Petitioners alleged
that respondents, who were residents along Jupiter Street of the subdivision,
converted their residences into commercial establishments in violation of the
"deed restrictions," and that respondent Ayala Corporation ushered in the full
commercialization" of Jupiter Street by tearing down the perimeter wall that
separated the commercial from the residential section of the village. 35
The petitions were dismissed based on Ordinance No. 81 of the Municipal Council
of Makati and Ordinance No. 81-01 of the Metro Manila Commission (MMC).
Municipal Ordinance No. 81 classified Bel-Air Village as a Class A Residential Zone,
with its boundary in the south extending to the center line of Jupiter Street. The
Municipal Ordinance was adopted by the MMC under the Comprehensive Zoning
Ordinance for the National Capital Region and promulgated as MMC Ordinance No.
81-01. Bel-Air Village was indicated therein as bounded by Jupiter Street and the
block adjacent thereto was classified as a High Intensity Commercial Zone. 36
We ruled that since both Ordinances recognized Jupiter Street as the boundary
between Bel-Air Village and the commercial district, Jupiter Street was not for the
exclusive benefit of Bel-Air residents. We also held that the perimeter wall on said
street was constructed not to separate the residential from the commercial blocks
but simply for security reasons, hence, in tearing down said wall, Ayala
Corporation did not violate the "deed restrictions" in the deeds of sale.
We upheld the ordinances, specifically MMC Ordinance No. 81-01, as a legitimate
exercise of police power. 37 The power of the MMC and the Makati Municipal Council
to enact zoning ordinances for the general welfare prevailed over the "deed
restrictions".
In the second Sangalang/Yabut decision, we held that the opening of Jupiter Street
was warranted by the demands of the common good in terms of "traffic
decongestion and public convenience." Jupiter was opened by the Municipal Mayor
to alleviate traffic congestion along the public streets adjacent to the
Village. 38 The same reason was given for the opening to public vehicular traffic of
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Orbit Street, a road inside the same village. The destruction of the gate in Orbit
Street was also made under the police power of the municipal government. The
gate, like the perimeter wall along Jupiter, was a public nuisance because it
hindered and impaired the use of property, hence, its summary abatement by the
mayor was proper and legal. 39
Contrary to petitioner's claim, the two Sangalang cases do not apply to the case at
bar. Firstly, both involved zoning ordinances passed by the municipal council of
Makati and the MMC. In the instant case, the basis for the proposed opening of
Neptune Street is contained in the notice of December 22, 1995 sent by petitioner
to respondent BAVA, through its president. The notice does not cite any ordinance
or law, either by the Sangguniang Panlungsod of Makati City or by the MMDA, as
the legal basis for the proposed opening of Neptune Street. Petitioner MMDA
simply relied on its authority under its charter "to rationalize the use of roads
and/or thoroughfares for the safe and convenient movement of persons."
Rationalizing the use of roads and thoroughfares is one of the acts that fall within
the scope of transport and traffic management. By no stretch of the imagination,
however, can this be interpreted as an express or implied grant of ordinancemaking power, much less police power.
The administration of Metropolitan Manila was placed under the Metro Manila
Commission (MMC) vested with the following powers:
Sec. 4. Powers and Functions of the Commission. The Commission shall have the
following powers and functions:
1.
2.
3.
To charge and collect fees for the use of public service facilities;
4.
5.
6.
7.
8.
To establish a fire control operation center, which shall direct the fire
services of the city and municipal governments in the metropolitan
area;
9.
Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the
MMC is the forerunner of the present MMDA, an examination of Presidential Decree
(P. D.) No. 824, the charter of the MMC, shows that the latter possessed greater
powers which were not bestowed on the present MMDA.
Metropolitan Manila was first created in 1975 by Presidential Decree (P.D.) No. 824.
It comprised the Greater Manila Area composed of the contiguous four (4) cities of
Manila, Quezon, Pasay and Caloocan, and the thirteen (13) municipalities of
Makati, Mandaluyong, San Juan, Las Pinas, Malabon, Navotas, Pasig, Pateros,
Paranaque, Marikina, Muntinlupa and Taguig in the province of Rizal, and
Valenzuela in the province of Bulacan. 40 Metropolitan Manila was created as a
response to the finding that the rapid growth of population and the increase of
social and economic requirements in these areas demand a call for simultaneous
and unified development; that the public services rendered by the respective local
governments could be administered more efficiently and economically if integrated
under a system of central planning; and this coordination, "especially in the
maintenance of peace and order and the eradication of social and economic ills
that fanned the flames of rebellion and discontent [were] part of reform measures
under Martial Law essential to the safety and security of the State." 41
Metropolitan Manila was established as a "public corporation" with the following
powers:
Sec. 1. Creation of the Metropolitan Manila. There is hereby created
a public corporation, to be known as the Metropolitan Manila, vested with
powers and attributes of a corporation including the power to make
contracts, sue and be sued, acquire, purchase, expropriate, hold, transfer
and dispose of property and such other powers as are necessary to carry
out its purposes. The Corporation shall be administered by a Commission
created under this Decree. 42
10. To establish and operate a transport and traffic center, which shall
direct traffic activities;
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11. To coordinate and monitor governmental and private activities
pertaining to essential services such as transportation, flood control
and drainage, water supply and sewerage, social, health and
environmental services, housing, park development, and others;
12. To insure and monitor the undertaking of a comprehensive social,
economic and physical planning and development of the area;
13. To study the feasibility of increasing barangay participation in the
affairs of their respective local governments and to propose to the
President of the Philippines definite programs and policies for
implementation;
14. To submit within thirty (30) days after the close of each fiscal year an
annual report to the President of the Philippines and to submit a
periodic report whenever deemed necessary; and
15. To perform such other tasks as may be assigned or directed by the
President of the Philippines.
The MMC was the "central government" of Metro Manila for the purpose of
establishing and administering programs providing services common to the area.
As a "central government" it had the power to levy and collect taxes and special
assessments, the power to charge and collect fees; the power to appropriate
money for its operation, and at the same time, review appropriations for the city
and municipal units within its jurisdiction. It was bestowed the power to enact or
approve ordinances, resolutions and fix penalties for violation of such ordinances
and resolutions. It also had the power to review, amend, revise or repeal all
ordinances, resolutions and acts of any of the four (4) cities and thirteen (13)
municipalities comprising Metro Manila.
P.D. No. 824 further provided:
The creation of the MMC also carried with it the creation of the Sangguniang
Bayan. This was composed of the members of the component city and municipal
councils, barangay captains chosen by the MMC and sectoral representatives
appointed by the President. The Sangguniang Bayan had the power to recommend
to the MMC the adoption of ordinances, resolutions or measures. It was the MMC
itself, however, that possessed legislative powers. All ordinances, resolutions and
measures recommended by the Sangguniang Bayan were subject to the MMC's
approval. Moreover, the power to impose taxes and other levies, the power to
appropriate money, and the power to pass ordinances or resolutions with penal
sanctions were vested exclusively in the MMC.
Thus, Metropolitan Manila had a "central government," i.e., the MMC which fully
possessed legislative police powers. Whatever legislative powers the component
cities and municipalities had were all subject to review and approval by the MMC.
After President Corazon Aquino assumed power, there was a clamor to restore the
autonomy of the local government units in Metro Manila. Hence, Sections 1 and 2
of Article X of the 1987 Constitution provided:
Sec. 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities and barangays. There
shall be autonomous regions in Muslim Mindanao and the Cordilleras as
herein provided.
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Sec. 9. Until otherwise provided, the governments of the four cities and
thirteen municipalities in the Metropolitan Manila shall continue to exist in
their present form except as may be inconsistent with this Decree. The
members of the existing city and municipal councils in Metropolitan
Manila shall, upon promulgation of this Decree, and until December 31,
1975, become members of the Sangguniang Bayan which is hereby
created for every city and municipality of Metropolitan Manila.
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xxx
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jurisdiction of this subdivision shall be limited to basic services requiring
coordination; and the cities and municipalities comprising this subdivision shall
retain their basic services requiring coordination; and the cities and municipalities
comprising this subdivision shall retain their basic autonomy and their own local
executive and legislative assemblies. 44 Pending enactment of this law, the
Transitory Provisions of the Constitution gave the President of the Philippines the
power to constitute the Metropolitan Authority, viz:
Sec. 8. Until otherwise provided by Congress, the President may
constitute the Metropolitan Authority to be composed of the heads of all
local government units comprising the Metropolitan Manila area. 45
In 1990, President Aquino issued Executive Order (E. O.) No. 392 and constituted
the Metropolitan Manila Authority (MMA). The powers and functions of the MMC
were devolved to the MMA. 46 It ought to be stressed, however, that not all powers
and functions of the MMC were passed to the MMA. The MMA's power was limited
to the "delivery of basic urban services requiring coordination in Metropolitan
Manila." 47 The MMA's governing body, the Metropolitan Manila Council, although
composed of the mayors of the component cities and municipalities, was merely
given power of: (1) formulation of policies on the delivery of basic services
requiring coordination and consolidation; and (2) promulgation resolutions and
other issuances, approval of a code of basic services and the exercise of its rulemaking power. 48
Under the 1987 Constitution, the local government units became primarily
responsible for the governance of their respective political subdivisions. The MMA's
jurisdiction was limited to addressing common problems involving basic services
that transcended local boundaries. It did not have legislative power. Its power was
merely to provide the local government units technical assistance in the
preparation of local development plans. Any semblance of legislative power it had
was confined to a "review [of] legislation proposed by the local legislative
assemblies to ensure consistency among local governments and with the
comprehensive development plan of Metro Manila," and to "advise the local
governments accordingly." 49
When R.A. No. 7924 took effect, Metropolitan Manila became a "special
development and administrative region" and the MMDA a "special development
authority" whose functions were "without prejudice to the autonomy of the
affected local government units." The character of the MMDA was clearly defined
in the legislative debates enacting its charter.
R.A. No. 7924 originated as House Bill No. 14170/11116 and was introduced by
several legislators led by Dante Tinga, Roilo Golez and Feliciano Belmonte. It was
presented to the House of Representatives by the Committee on Local
Governments chaired by Congressman Ciriaco R. Alfelor. The bill was a product of
Committee consultations with the local government units in the National Capital
Region (NCR), with former Chairmen of the MMC and MMA, 50 and career officials of
said agencies. When the bill was first taken up by the Committee on Local
Governments, the following debate took place:
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xxx
xxx
xxx
51
Clearly, the MMDA is not a political unit of government. The power delegated to
the MMDA is that given to the Metro Manila Council to promulgate administrative
rules and regulations in the implementation of the MMDA's functions. There is no
grant of authority to enact ordinances and regulations for the general welfare of
the inhabitants of the metropolis. This was explicitly stated in the last Committee
deliberations prior to the bill's presentation to Congress. Thus:
THE CHAIRMAN: Yeah, but we have to go over the suggested revision. I
think this was already approved before, but it was reconsidered in view of
the proposals, set-up, to make the MMDA stronger. Okay, so if there is no
objection to paragraph "f". . . And then next is paragraph "b," under
Section 6. "It shall approve metro-wide plans, programs and projects and
issue ordinances or resolutions deemed necessary by the MMDA to carry
out the purposes of this Act." Do you have the powers? Does the
MMDA... because that takes the form of a local government unit, a
political subdivision.
HON. [Feliciano] BELMONTE: Yes, I believe so, your Honor. When we say
that it has the policies, it's very clear that those policies must be followed.
Otherwise, what's the use of empowering it to come out with policies.
Now, the policies may be in the form of a resolution or it may be in the
form of a ordinance. The term "ordinance" in this case really gives it more
teeth, your honor. Otherwise, we are going to see a situation where you
have the power to adopt the policy but you cannot really make it stick as
in the case now, and I think here is Chairman Bunye. I think he will agree
that that is the case now. You've got the power to set a policy, the body
wants to follow your policy, then we say let's call it an ordinance and see
if they will not follow it.
THE CHAIRMAN: That's very nice. I like that. However, there is a
constitutional impediment.1wphi1 You are making this MMDA a political
subdivision. The creation of the MMDA would be subject to a plebiscite.
That is what I'm trying to avoid. I've been trying to avoid this kind of
predicament. Under the Constitution it states: if it is a political
subdivision, once it is created it has to be subject to a plebiscite. I'm
trying to make this as administrative. That's why we place the Chairman
as a cabinet rank.
HON. BELMONTE: All right, Mr. Chairman, okay, what you are saying there
is . . . . .
THE CHAIRMAN: In setting up ordinances, it is a political exercise, Believe
me.
HON. [Elias] LOPEZ: Mr. Chairman, it can be changed into issuances of
rules and regulations. That would be . . . it shall also be enforced.
52
The draft of H. B. No. 14170/11116 was presented by the Committee to the House
of Representatives. The explanatory note to the bill stated that the proposed
MMDA is a "development authority" which is a "national agency, not a political
government unit." 53 The explanatory note was adopted as the sponsorship speech
of the Committee on Local Governments. No interpellations or debates were made
on the floor and no amendments introduced. The bill was approved on second
reading on the same day it was presented. 54
When the bill was forwarded to the Senate, several amendments were
made.1wphi1 These amendments, however, did not affect the nature of the
MMDA as originally conceived in the House of Representatives. 55
It is thus beyond doubt that the MMDA is not a local government unit or a public
corporation endowed with legislative power. It is not even a "special metropolitan
political subdivision" as contemplated in Section 11, Article X of the Constitution.
The creation of a "special metropolitan political subdivision" requires the approval
by a majority of the votes cast in a plebiscite in the political units directly
affected." 56 R. A. No. 7924 was not submitted to the inhabitants of Metro Manila in
a plebiscite. The Chairman of the MMDA is not an official elected by the people,
but appointed by the President with the rank and privileges of a cabinet member.
In fact, part of his function is to perform such other duties as may be assigned to
him by the President, 57 whereas in local government units, the President merely
exercises supervisory authority. This emphasizes the administrative character of
the MMDA.
Clearly then, the MMC under P.D. No. 824 is not the same entity as the MMDA
under R.A. No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances
for the welfare of the community. It is the local government units, acting through
their respective legislative councils, that possess legislative power and police
power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass
any ordinance or resolution ordering the opening of Neptune Street, hence, its
proposed opening by petitioner MMDA is illegal and the respondent Court of
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Appeals did not err in so ruling. We desist from ruling on the other issues as they
are unnecessary.
We stress that this decision does not make light of the MMDA's noble efforts to
solve the chaotic traffic condition in Metro Manila. Everyday, traffic jams and traffic
bottlenecks plague the metropolis. Even our once sprawling boulevards and
avenues are now crammed with cars while city streets are clogged with motorists
and pedestrians. Traffic has become a social malaise affecting our people's
productivity and the efficient delivery of goods and services in the country. The
MMDA was created to put some order in the metropolitan transportation system
but unfortunately the powers granted by its charter are limited. Its good intentions
cannot justify the opening for public use of a private street in a private subdivision
without any legal warrant. The promotion of the general welfare is not antithetical
to the preservation of the rule of law.1wphi1.nt
IN VIEW WHEREOF, the petition is denied. The Decision and Resolution of the Court
of Appeals in CA-G.R. SP No. 39549 are affirmed. SO ORDERED.
RODOLFO T. GANZON, petitioner, vs. THE HONORABLE COURT OF APPEALS and LUIS
T. SANTOS, in his capacity as the Secretary of the Department of Local Government,
respondents.
SARMIENTO, J.:p
The petitioners take common issue on the power of the President (acting through the
Secretary of Local Government), to suspend and/or remove local officials.
The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a member of the
Sangguniang Panglunsod thereof (G.R. No. 93746), respectively.
The petitions of Mayor Ganzon originated from a series of administrative complaints, ten in
number, filed against him by various city officials sometime in 1988, on various charges,
among them, abuse of authority, oppression, grave misconduct, disgraceful and immoral
conduct, intimidation, culpable violation of the Constitution, and arbitrary detention. 1 The
personalities involved are Joceleehn Cabaluna, a clerk at the city health office; Salvador
Cabaluna, her husband; Dr. Felicidad Ortigoza, Assistant City Health Officer; Mansueto
Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong, and
Eduardo Pefia Redondo members of the Sangguniang Panglunsod; and Pancho Erbite, a
barangay tanod. The complaints against the Mayor are set forth in the opinion of the
respondent Court of Appeals. 2 We quote:
xxx xxx xxx
In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the City
Health, Office of Iloilo City charged that due to political reasons, having supported
the rival candidate, Mrs. Rosa 0. Caram, the petitioner City Mayor, using as an
excuse the exigency of the service and the interest of the public, pulled her out from
rightful office where her qualifications are best suited and assigned her to a work
that should be the function of a non-career service employee. To make matters
worse, a utility worker in the office of the Public Services, whose duties are alien to
the complainant's duties and functions, has been detailed to take her place. The
petitioner's act are pure harassments aimed at luring her away from her permanent
position or force her to resign.
In the case of Dra. Felicidad Ortigoza, she claims that the petitioner handpicked her
to perform task not befitting her position as Assistant City Health Officer of Iloilo City;
that her office was padlocked without any explanation or justification; that her salary
was withheld without cause since April 1, 1988; that when she filed her vacation
leave, she was given the run-around treatment in the approval of her leave in
connivance with Dr. Rodolfo Villegas and that she was the object of a wellengineered trumped-up charge in an administrative complaint filed by Dr. Rodolfo
Villegas (Annex B).
On the other hand, Mansuelo Malabor is the duly elected Vice-Mayor of Iloilo City
and complainants Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong and
Eduardo Pefia Pedondo are members of the Sangguniang Panglunsod of the City of
Iloilo. Their complaint arose out from the case where Councilor Larry Ong, whose
key to his office was unceremoniously and without previous notice, taken by
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petitioner. Without an office, Councilor Ong had to hold office at Plaza Libertad, The
Vice-Mayor and the other complainants sympathized with him and decided to do the
same. However, the petitioner, together with its fully-armed security men, forcefully
drove them away from Plaza Libertad. Councilor Ong denounced the petitioner's
actuations the following day in the radio station and decided to hold office at the
Freedom Grandstand at Iloilo City and there were so many people who gathered to
witness the incident. However, before the group could reach the area, the petitioner,
together with his security men, led the firemen using a firetruck in dozing water to
the people and the bystanders.
Another administrative case was filed by Pancho Erbite, a barangay tanod,
appointed by former mayor Rosa O. Caram. On March 13, 1988, without the benefit
of charges filed against him and no warrant of arrest was issued, Erbite was
arrested and detained at the City Jail of Iloilo City upon orders of petitioner. In jail,
he was allegedly mauled by other detainees thereby causing injuries He was
released only the following day. 3
The Mayor thereafter answered 4 and the cases were shortly set for hearing. The opinion of
the Court of Appeals also set forth the succeeding events:
xxx xxx xxx
The initial hearing in the Cabaluna and Ortigoza cases were set for hearing on June
20-21, 1988 at the Regional Office of the Department of Local Government in Iloilo
City. Notices, through telegrams, were sent to the parties (Annex L) and the parties
received them, including the petitioner. The petitioner asked for a postponement
before the scheduled date of hearing and was represented by counsel, Atty. Samuel
Castro. The hearing officers, Atty. Salvador Quebral and Atty. Marino Bermudez had
to come all the way from Manila for the two-day hearings but was actually held only
on June 20,1988 in view of the inability and unpreparedness of petitioner's counsel.
The next hearings were re-set to July 25, 26, 27,1988 in the same venue-Iloilo City.
Again, the petitioner attempted to delay the proceedings and moved for a
postponement under the excuse that he had just hired his counsel. Nonetheless, the
hearing officers denied the motion to postpone, in view of the fact that the parties
were notified by telegrams of the scheduled hearings (Annex M).
In the said hearings, petitioner's counsel cross-examined the complainants and their
witnesses.
Finding probable grounds and reasons, the respondent issued a preventive
suspension order on August 11, 1988 to last until October 11,1988 for a period of
sixty (60) days.
Then the next investigation was set on September 21, 1988 and the petitioner again
asked for a postponement to September 26,1988. On September 26, 1988, the
complainants and petitioner were present, together with their respective counsel.
The petitioner sought for a postponement which was denied. In these hearings
which were held in Mala the petitioner testified in Adm. Case No. C-10298 and
10299.
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On June 26,1990, we issued a Temporary Restraining Order, barring the respondent Secretary
from implementing the suspension orders, and restraining the enforcement of the Court of
Appeals' two decisions.
reason to overrule Secretary Santos in denying his requests. Besides, postponements are a
matter of discretion on the part of the hearing officer, and based on Mayor Ganzon's above
story, we are not convinced that the Secretary has been guilty of a grave abuse of discretion.
In our Resolution of November 29, 1990, we consolidated all three cases. In our Resolutions
of January 15, 1991, we gave due course thereto.
The Court can not say, under these circumstances, that Secretary Santos' actuations deprived
Mayor Ganzon of due process of law.
Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of Local
Government in hearing the ten cases against him, had denied him due process of law and that
the respondent Secretary had been "biased, prejudicial and hostile" towards him 7 arising from
his (Mayor Ganzon's) alleged refusal to join the Laban ng Demokratikong Pilipino party 8 and
the running political rivalry they maintained in the last congressional and local elections; 9and
his alleged refusal to operate a lottery in Iloilo City. 10 He also alleges that he requested the
Secretary to lift his suspension since it had come ninety days prior to an election (the
barangay elections of November 14, 1988), 11notwithstanding which, the latter proceeded with
the hearing and meted out two more suspension orders of the aforementioned cases. 12 He
likewise contends that he sought to bring the cases to Iloilo City (they were held in Manila) in
order to reduce the costs of proceeding, but the Secretary rejected his request. 13 He states
that he asked for postponement on "valid and justifiable" 14 grounds, among them, that he was
suffering from a heart ailment which required confinement; that his "vital" 15 witness was also
hospitalized 16 but that the latter unduly denied his request. 17
We come to the core question: Whether or not the Secretary of Local Government, as the
President's alter ego, can suspend and/or remove local officials.
Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary of Local
Government is devoid, in any event, of any authority to suspend and remove local officials, an
argument reiterated by the petitioner Mary Ann Rivera Artieda (G.R. No. 93746).
It is the petitioners' argument that the 1987 Constitution 20 no longer allows the President, as
the 1935 and 1973 Constitutions did, to exercise the power of suspension and/or removal over
local officials. According to both petitioners, the Constitution is meant, first, to strengthen selfrule by local government units and second, by deleting the phrase 21 as may be provided by
law to strip the President of the power of control over local governments. It is a view, so they
contend, that finds support in the debates of the Constitutional Commission. The provision in
question reads as follows:
Sec. 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. 22
It modifies a counterpart provision appearing in the 1935 Constitution, which we quote:
As to Mayor Ganzon's charges of denial of due process, the records do not show very clearly
in what manner the Mayor might have been deprived of his rights by the respondent Secretary.
His claims that he and Secretary Luis-Santos were (are) political rivals and that his
"persecution" was politically motivated are pure speculation and although the latter does not
appear to have denied these contentions (as he, Mayor Ganzon, claims), we can not take his
word for it the way we would have under less political circumstances, considering furthermore
that "political feud" has often been a good excuse in contesting complaints.
The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos had
attempted to seduce him to join the administration party and to operate a lottery in Iloilo City.
Again, although the Secretary failed to rebut his allegations, we can not accept them, at face
value, much more, as judicial admissions as he would have us accept them 18 for the same
reasons above-stated and furthermore, because his say so's were never corroborated by
independent testimonies. As a responsible public official, Secretary Santos, in pursuing an
official function, is presumed to be performing his duties regularly and in the absence of
contrary evidence, no ill motive can be ascribed to him.
As to Mayor Ganzon's contention that he had requested the respondent Secretary to defer the
hearing on account of the ninety-day ban prescribed by Section 62 of Batas Blg. 337, the
Court finds the question to be moot and academic since we have in fact restrained the
Secretary from further hearing the complaints against the petitioners. 19
As to his request, finally, for postponements, the Court is afraid that he has not given any
compelling reason why we should overturn the Court of Appeals, which found no convincing
Sec. 10. The President shall have control of all the executive departments, bureaus,
or offices, exercise general supervision over all Local governments as may be
provided by law, and take care that the laws be faithfully executed. 23
The petitioners submit that the deletion (of "as may be provided by law") is significant, as their
argument goes, since: (1) the power of the President is "provided by law" and (2) hence, no
law may provide for it any longer.
It is to be noted that in meting out the suspensions under question, the Secretary of Local
Government acted in consonance with the specific legal provisions of Batas Blg. 337, the
Local Government Code, we quote:
Sec. 62. Notice of Hearing. Within seven days after the complaint is filed, the
Minister of local Government, or the sanggunian concerned, as the case may be,
shall require the respondent to submit his verified answer within seven days from
receipt of said complaint, and commence the hearing and investigation of the case
within ten days after receipt of such answer of the respondent. No investigation shall
be held within ninety days immediately prior to an election, and no preventive
suspension shall be imposed with the said period. If preventive suspension has
been imposed prior to the aforesaid period, the preventive suspension shall be
lifted. 24
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Sec. 63. Preventive Suspension. (1) Preventive suspension may be imposed by
the Minister of Local Government if the respondent is a provincial or city official, by
the provincial governor if the respondent is an elective municipal official, or by the
city or municipal mayor if the respondent is an elective barangay official.
(2) Preventive suspension may be imposed at any time after the issues are joined,
when there is reasonable ground to believe that the respondent has committed the
act or acts complained of, when the evidence of culpability is strong, when the
gravity of the offense so warrants, or when the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety and integrity
of the records and other evidence. In all cases, preventive suspension shall not
extend beyond sixty days after the start of said suspension.
(3) At the expiration of sixty days, the suspended official shall be deemed reinstated
in office without prejudice to the continuation of the proceedings against him until its
termination. However ' if the delay in the proceedings of the case is due to his fault,
neglect or request, the time of the delay shall not be counted in computing the time
of suspension. 25
The issue, as the Court understands it, consists of three questions: (1) Did the 1987
Constitution, in deleting the phrase "as may be provided by law" intend to divest the President
of the power to investigate, suspend, discipline, and/or remove local officials? (2) Has the
Constitution repealed Sections 62 and 63 of the Local Government Code? (3) What is the
significance of the change in the constitutional language?
It is the considered opinion of the Court that notwithstanding the change in the constitutional
language, the charter did not intend to divest the legislature of its right or the President of her
prerogative as conferred by existing legislation to provide administrative sanctions against
local officials. It is our opinion that the omission (of "as may be provided by law") signifies
nothing more than to underscore local governments' autonomy from congress and to break
Congress' "control" over local government affairs. The Constitution did not, however, intend,
for the sake of local autonomy, to deprive the legislature of all authority over municipal
corporations, in particular, concerning discipline.
Autonomy does not, after all, contemplate making mini-states out of local government units, as
in the federal governments of the United States of America (or Brazil or Germany), although
Jefferson is said to have compared municipal corporations euphemistically to "small
republics." 26 Autonomy, in the constitutional sense, is subject to the guiding star, though not
control, of the legislature, albeit the legislative responsibility under the Constitution and as the
"supervision clause" itself suggest-is to wean local government units from over-dependence
on the central government.
It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing, but
subject to, among other things, the passage of a local government code, 27 a local tax
law, 28 income distribution legislation, 29 and a national representation law, 30 and
measures 31 designed to realize autonomy at the local level. It is also noteworthy that in spite
of autonomy, the Constitution places the local government under the general supervision of
the Executive. It is noteworthy finally, that the Charter allows Congress to include in the local
government code provisions for removal of local officials, which suggest that Congress may
exercise removal powers, and as the existing Local Government Code has done, delegate its
exercise to the President. Thus:
Sec. 3. The Congress shall 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. 32
As hereinabove indicated, the deletion of "as may be provided by law" was meant to
stress, sub silencio, the objective of the framers to strengthen local autonomy by severing
congressional control of its affairs, as observed by the Court of Appeals, like the power of local
legislation. 33 The Constitution did nothing more, however, and insofar as existing legislation
authorizes the President (through the Secretary of Local Government) to proceed against local
officials administratively, the Constitution contains no prohibition.
The petitioners are under the impression that the Constitution has left the President mere
supervisory powers, which supposedly excludes the power of investigation, and denied her
control, which allegedly embraces disciplinary authority. It is a mistaken impression because
legally, "supervision" is not incompatible with disciplinary authority as this Court has
held, 34 thus:
xxx xxx xxx
It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this
Court had occasion to discuss the scope and extent of the power of supervision by
the President over local government officials in contrast to the power of control given
to him over executive officials of our government wherein it was emphasized that the
two terms, control and supervision, are two different things which differ one from the
other in meaning and extent. Thus in that case the Court has made the following
digression: "In administration law 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 of set aside what a
subordinate officer had done in the performance of his duties and to substitute the
judgment of the former for that of the latter." But from this pronouncement it cannot
be reasonably inferred that the power of supervision of the President over local
government officials does not include the power of investigation when in his opinion
the good of the public service so requires, as postulated in Section 64(c) of the
Revised Administrative Code. ... 35
xxx xxx xxx
"Control" has been defined as "the power of an officer to alter or modify or nullify or set aside
what a subordinate officer had done in the performance of his duties and to substitute the
judgment of the former for test of the latter." 36 "Supervision" on the other hand means
"overseeing or the power or authority of an officer to see that subordinate officers perform their
duties. 37 As we held, 38 however, "investigating" is not inconsistent with "overseeing", although
it is a lesser power than "altering". The impression is apparently exacerbated by the Court's
pronouncements in at least three cases,Lacson v. Roque, 39 Hebron v. Reyes, 40 and Mondano
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v. Silvosa, 41 and possibly, a fourth one, Pelaez v. Auditor General. 42 In Lacson, this Court said
that the President enjoyed no control powers but only supervision "as may be provided by
law,"43 a rule we reiterated in Hebron, and Mondano. In Pelaez, we stated that the President
"may not . . . suspend an elective official of a regular municipality or take any disciplinary
action against him, except on appeal from a decision of the corresponding provincial
board." 44 However, neither Lacson nor Hebron nor Mondano categorically banned the Chief
Executive from exercising acts of disciplinary authority because she did not exercise control
powers, but because no law allowed her to exercise disciplinary authority. Thus, according
to Lacson:
The contention that the President has inherent power to remove or suspend
municipal officers is without doubt not well taken. Removal and suspension of public
officers are always controlled by the particular law applicable and its proper
construction subject to constitutional limitations. 45
In Hebron we stated:
Accordingly, when the procedure for the suspension of an officer is specified by law,
the same must be deemed mandatory and adhered to strictly, in the absence of
express or clear provision to the contrary-which does not et with respect to
municipal officers ... 46
In Mondano, the Court held:
... The Congress has expressly and specifically lodged the provincial supervision
over municipal officials in the provincial governor who is authorized to "receive and
investigate complaints made under oath against municipal officers for neglect of
duty, oppression, corruption or other form of maladministration of office, and
conviction by final judgment of any crime involving moral turpitude." And if the
charges are serious, "he shall submit written charges touching the matter to the
provincial board, furnishing a copy of such charges to the accused either personally
or by registered mail, and he may in such case suspend the officer (not being the
municipal treasurer) pending action by the board, if in his opinion the charge by one
affecting the official integrity of the officer in question." Section 86 of the Revised
Administration Code adds nothing to the power of supervision to be exercised by the
Department Head over the administration of ... municipalities ... . If it be construed
that it does and such additional power is the same authority as that vested in the
Department Head by section 79(c) of the Revised Administrative Code, then such
additional power must be deemed to have been abrogated by Section 110(l), Article
VII of the Constitution. 47
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The successive sixty-day suspensions imposed on Mayor Rodolfo Ganzon is albeit another
matter. What bothers the Court, and what indeed looms very large, is the fact that since the
Mayor is facing ten administrative charges, the Mayor is in fact facing the possibility of 600
days of suspension, in the event that all ten cases yield prima faciefindings. The Court is not of
course tolerating misfeasance in public office (assuming that Mayor Ganzon is guilty of
misfeasance) but it is certainly another question to make him serve 600 days of suspension,
which is effectively, to suspend him out of office. As we held: 56
2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term
of office does not expire until 1986. Were it not for this information and the
suspension decreed by the Sandiganbayan according to the Anti-Graft and Corrupt
Practices Act, he would have been all this while in the full discharge of his functions
as such municipal mayor. He was elected precisely to do so. As of October 26,
1983, he has been unable to. it is a basic assumption of the electoral process
implicit in the right of suffrage that the people are entitled to the services of elective
officials of their choice. For misfeasance or malfeasance, any of them could, of
course, be proceeded against administratively or, as in this instance, criminally. In
either case, Ms culpability must be established. Moreover, if there be a criminal
action, he is entitled to the constitutional presumption of innocence. A preventive
suspension may be justified. Its continuance, however, for an unreasonable length
of time raises a due process question. For even if thereafter he were acquitted, in
the meanwhile his right to hold office had been nullified. Clearly, there would be in
such a case an injustice suffered by him. Nor is he the only victim. There is injustice
inflicted likewise on the people of Lianga They were deprived of the services of the
man they had elected to serve as mayor. In that sense, to paraphrase Justice
Cardozo, the protracted continuance of this preventive suspension had outrun the
bounds of reason and resulted in sheer oppression. A denial of due process is thus
quite manifest. It is to avoid such an unconstitutional application that the order of
suspension should be lifted. 57
The plain truth is that this Court has been ill at ease with suspensions, for the above
reasons, 58 and so also, because it is out of the ordinary to have a vacancy in local
government. The sole objective of a suspension, as we have held, 59 is simply "to prevent the
accused from hampering the normal cause of the investigation with his influence and authority
over possible witnesses" 60 or to keep him off "the records and other evidence. 61
It is a means, and no more, to assist prosecutors in firming up a case, if any, against an erring
local official. Under the Local Government Code, it can not exceed sixty days, 62 which is to
say that it need not be exactly sixty days long if a shorter period is otherwise sufficient, and
which is also to say that it ought to be lifted if prosecutors have achieved their purpose in a
shorter span.
As we observed earlier, imposing 600 days of suspension which is not a remote possibility
Mayor Ganzon is to all intents and purposes, to make him spend the rest of his term in
inactivity. It is also to make, to all intents and purposes, his suspension permanent.
It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has not been
proven. Worse, any absolution will be for naught because needless to say, the length of his
suspension would have, by the time he is reinstated, wiped out his tenure considerably.
The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to see
that justice is done in Iloilo City, yet it is hardly any argument to inflict on Mayor Ganzon
successive suspensions when apparently, the respondent Secretary has had sufficient time to
gather the necessary evidence to build a case against the Mayor without suspending him a
day longer. What is intriguing is that the respondent Secretary has been cracking down, so to
speak, on the Mayor piecemeal apparently, to pin him down ten times the pain, when he, the
respondent Secretary, could have pursued a consolidated effort.
We reiterate that we are not precluding the President, through the Secretary of Interior from
exercising a legal power, yet we are of the opinion that the Secretary of Interior is exercising
that power oppressively, and needless to say, with a grave abuse of discretion.
The Court is aware that only the third suspension is under questions, and that any talk of
future suspensions is in fact premature. The fact remains, however, that Mayor Ganzon has
been made to serve a total of 120 days of suspension and the possibility of sixty days more is
arguably around the corner (which amounts to a violation of the Local Government Code
which brings to light a pattern of suspensions intended to suspend the Mayor the rest of his
natural tenure. The Court is simply foreclosing what appears to us as a concerted effort of the
State to perpetuate an arbitrary act.
As we said, we can not tolerate such a state of affairs.
We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third suspension
and lifting, for the purpose, the Temporary Restraining Order earlier issued. Insofar as the
seven remaining charges are concerned, we are urging the Department of Local Government,
upon the finality of this Decision, to undertake steps to expedite the same, subject to Mayor
Ganzon's usual remedies of appeal, judicial or administrative, or certiorari, if warranted, and
meanwhile, we are precluding the Secretary from meting out further suspensions based on
those remaining complaints, notwithstanding findings of prima facie evidence.
In resume the Court is laying down the following rules:
Suspension is not a penalty and is not unlike preventive imprisonment in which the accused is
held to insure his presence at the trial. In both cases, the accused (the respondent) enjoys a
presumption of innocence unless and until found guilty.
1.
Suspension finally is temporary and as the Local Government Code provides, it may be
imposed for no more than sixty days. As we held, 63 a longer suspension is unjust and
unreasonable, and we might add, nothing less than tyranny.
2.
3.
The change in constitutional language (with respect to the supervision clause) was
meant but to deny legislative control over local governments; it did not exempt the
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latter from legislative regulations provided regulation is consistent with the
fundamental premise of autonomy;
A TV ad proudly announces:
"The new PAGCOR responding through responsible gaming."
4.
5.
6.
Since local governments remain accountable to the national authority, the latter may,
by law, and in the manner set forth therein, impose disciplinary action against local
officials;
"Supervision" and "investigation" are not inconsistent terms; "investigation" does not
signify "control" (which the President does not have);
The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered,
but may no longer be suspended for the offenses he was charged originally;
provided:
a)
that delays in the investigation of those charges "due to his fault, neglect
or request, (the time of the delay) shall not be counted in computing the
time of suspension. [Supra, sec. 63(3)]
b)
that if during, or after the expiration of, his preventive suspension, the
petitioner commits another or other crimes and abuses for which proper
charges are filed against him by the aggrieved party or parties, his
previous suspension shall not be a bar to his being preventively
suspended again, if warranted under subpar. (2), Section 63 of the Local
Government Code.
But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul
the Philippine Amusement and Gaming Corporation (PAGCOR) Charter PD 1869, because
it is allegedly contrary to morals, public policy and order, and because
A.
B.
C.
D.
In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the
declared national policy of the "new restored democracy" and the people's will as expressed in
the 1987 Constitution. The decree is said to have a "gambling objective" and therefore is
contrary to Sections 11, 12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2) of Article
XIV, of the present Constitution (p. 3, Second Amended Petition; p. 21, Rollo).
The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner
Basco being also the Chairman of the Committee on Laws of the City Council of Manila), can
question and seek the annulment of PD 1869 on the alleged grounds mentioned above.
The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D.
1067-A dated January 1, 1977 and was granted a franchise under P.D. 1067-B also dated
January 1, 1977 "to establish, operate and maintain gambling casinos on land or water within
the territorial jurisdiction of the Philippines." Its operation was originally conducted in the well
known floating casino "Philippine Tourist." The operation was considered a success for it
proved to be a potential source of revenue to fund infrastructure and socio-economic projects,
thus, P.D. 1399 was passed on June 2, 1978 for PAGCOR to fully attain this objective.
Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the
Government to regulate and centralize all games of chance authorized by existing franchise or
permitted by law, under the following declared policy
Sec. 1. Declaration of Policy. It is hereby declared to be the policy of the State to
centralize and integrate all games of chance not heretofore authorized by existing
franchises or permitted by law in order to attain the following objectives:
PARAS, J.:
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(a) To centralize and integrate the right and authority to operate and conduct games
of chance into one corporate entity to be controlled, administered and supervised by
the Government.
(b) To establish and operate clubs and casinos, for amusement and recreation,
including sports gaming pools, (basketball, football, lotteries, etc.) and such other
forms of amusement and recreation including games of chance, which may be
allowed by law within the territorial jurisdiction of the Philippines and which will: (1)
generate sources of additional revenue to fund infrastructure and socio-civic
projects, such as flood control programs, beautification, sewerage and sewage
projects, Tulungan ng Bayan Centers, Nutritional Programs, Population Control and
such other essential public services; (2) create recreation and integrated facilities
which will expand and improve the country's existing tourist attractions; and (3)
minimize, if not totally eradicate, all the evils, malpractices and corruptions that are
normally prevalent on the conduct and operation of gambling clubs and casinos
without direct government involvement. (Section 1, P.D. 1869)
To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines.
Under its Charter's repealing clause, all laws, decrees, executive orders, rules and regulations,
inconsistent therewith, are accordingly repealed, amended or modified.
It is reported that PAGCOR is the third largest source of government revenue, next to the
Bureau of Internal Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned
P3.43 Billion, and directly remitted to the National Government a total of P2.5 Billion in form of
franchise tax, government's income share, the President's Social Fund and Host Cities' share.
In addition, PAGCOR sponsored other socio-cultural and charitable projects on its own or in
cooperation with various governmental agencies, and other private associations and
organizations. In its 3 1/2 years of operation under the present administration, PAGCOR
remitted to the government a total of P6.2 Billion. As of December 31, 1989, PAGCOR was
employing 4,494 employees in its nine (9) casinos nationwide, directly supporting the
livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is
"null and void" for being "contrary to morals, public policy and public order," monopolistic and
tends toward "crony economy", and is violative of the equal protection clause and local
autonomy as well as for running counter to the state policies enunciated in Sections 11
(Personal Dignity and Human Rights), 12 (Family) and 13 (Role of Youth) of Article II, Section
1 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987
Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most
deliberate consideration by the Court, involving as it does the exercise of what has been
described as "the highest and most delicate function which belongs to the judicial department
of the government." (State v. Manuel, 20 N.C. 144; Lozano v. Martinez, 146 SCRA 323).
As We enter upon the task of passing on the validity of an act of a co-equal and coordinate
branch of the government We need not be reminded of the time-honored principle, deeply
ingrained in our jurisprudence, that a statute is presumed to be valid. Every presumption must
be indulged in favor of its constitutionality. This is not to say that We approach Our task with
diffidence or timidity. Where it is clear that the legislature or the executive for that matter, has
over-stepped the limits of its authority under the constitution, We should not hesitate to wield
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Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of
gambling does not mean that the Government cannot regulate it in the exercise of its police
power.
The concept of police power is well-established in this jurisdiction. It has been defined as the
"state authority to enact legislation that may interfere with personal liberty or property in order
to promote the general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As defined, it consists of
(1) an imposition or restraint upon liberty or property, (2) in order to foster the common good. It
is not capable of an exact definition but has been, purposely, veiled in general terms to
underscore its all-comprehensive embrace. (Philippine Association of Service Exporters, Inc. v.
Drilon, 163 SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future
where it could be done, provides enough room for an efficient and flexible response to
conditions and circumstances thus assuming the greatest benefits. (Edu v. Ericta, supra)
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the
charter. Along with the taxing power and eminent domain, it is inborn in the very fact of
statehood and sovereignty. It is a fundamental attribute of government that has enabled it to
perform the most vital functions of governance. Marshall, to whom the expression has been
credited, refers to it succinctly as the plenary power of the state "to govern its citizens". (Tribe,
American Constitutional Law, 323, 1978). The police power of the State is a power coextensive with self-protection and is most aptly termed the "law of overwhelming necessity."
(Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most essential, insistent, and
illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a dynamic force that
enables the state to meet the agencies of the winds of change.
What was the reason behind the enactment of P.D. 1869?
P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize
thru an appropriate institution all games of chance authorized by existing franchise or
permitted by law" (1st whereas clause, PD 1869). As was subsequently proved, regulating and
centralizing gambling operations in one corporate entity the PAGCOR, was beneficial not
just to the Government but to society in general. It is a reliable source of much needed
revenue for the cash strapped Government. It provided funds for social impact projects and
subjected gambling to "close scrutiny, regulation, supervision and control of the Government"
(4th Whereas Clause, PD 1869). With the creation of PAGCOR and the direct intervention of
the Government, the evil practices and corruptions that go with gambling will be minimized if
not totally eradicated. Public welfare, then, lies at the bottom of the enactment of PD 1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to
impose taxes and legal fees; that the exemption clause in P.D. 1869 is violative of the principle
of local autonomy. They must be referring to Section 13 par. (2) of P.D. 1869 which exempts
PAGCOR, as the franchise holder from paying any "tax of any kind or form, income or
otherwise, as well as fees, charges or levies of whatever nature, whether National or Local."
(2) Income and other taxes. a) Franchise Holder: No tax of any kind or form,
income or otherwise as well as fees, charges or levies of whatever nature, whether
National or Local, shall be assessed and collected under this franchise from the
Corporation; nor shall any form or tax or charge attach in any way to the earnings of
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Sec. 9. Regulatory Power. The Corporation shall maintain a Registry of the
affiliated entities, and shall exercise all the powers, authority and the responsibilities
vested in the Securities and Exchange Commission over such affiliating entities
mentioned under the preceding section, including, but not limited to amendments of
Articles of Incorporation and By-Laws, changes in corporate term, structure,
capitalization and other matters concerning the operation of the affiliated entities,
the provisions of the Corporation Code of the Philippines to the contrary
notwithstanding, except only with respect to original incorporation.
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is
governmental, which places it in the category of an agency or instrumentality of the
Government. Being an instrumentality of the Government, PAGCOR should be and actually is
exempt from local taxes. Otherwise, its operation might be burdened, impeded or subjected to
control by a mere Local government.
The states have no power by taxation or otherwise, to retard, impede, burden or in
any manner control the operation of constitutional laws enacted by Congress to
carry into execution the powers vested in the federal government. (MC Culloch v.
Marland, 4 Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over local
governments.
Justice Holmes, speaking for the Supreme Court, made reference to the entire
absence of power on the part of the States to touch, in that way (taxation) at least,
the instrumentalities of the United States (Johnson v. Maryland, 254 US 51) and it
can be agreed that no state or political subdivision can regulate a federal
instrumentality in such a way as to prevent it from consummating its federal
responsibilities, or even to seriously burden it in the accomplishment of them.
(Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru extermination of what
local authorities may perceive to be undesirable activities or enterprise using the power to tax
as "a tool for regulation" (U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch
v. Maryland, supra) cannot be allowed to defeat an instrumentality or creation of the very entity
which has the inherent power to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated
by P.D. 1869. This is a pointless argument. Article X of the 1987 Constitution (on Local
Autonomy) provides:
Sec. 5. Each local government unit shall have the power to create its own source of
revenue and to levy taxes, fees, and other charges subject to such guidelines and
limitation as the congress may provide, consistent with the basic policy on local
autonomy. Such taxes, fees and charges shall accrue exclusively to the local
government. (emphasis supplied)
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The "equal protection clause" does not prohibit the Legislature from establishing classes of
individuals or objects upon which different rules shall operate (Laurel v. Misa, 43 O.G. 2847).
The Constitution does not require situations which are different in fact or opinion to be treated
in law as though they were the same (Gomez v. Palomar, 25 SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal
protection is not clearly explained in the petition. The mere fact that some gambling activities
like cockfighting (P.D 449) horse racing (R.A. 306 as amended by RA 983), sweepstakes,
lotteries and races (RA 1169 as amended by B.P. 42) are legalized under certain conditions,
while others are prohibited, does not render the applicable laws, P.D. 1869 for one,
unconstitutional.
If the law presumably hits the evil where it is most felt, it is not to be overthrown
because there are other instances to which it might have been applied. (Gomez v.
Palomar, 25 SCRA 827)
The equal protection clause of the 14th Amendment does not mean that all
occupations called by the same name must be treated the same way; the state may
do what it can to prevent which is deemed as evil and stop short of those cases in
which harm to the few concerned is not less than the harm to the public that would
insure if the rule laid down were made mathematically exact. (Dominican Hotel v.
Arizona, 249 US 2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government
away from monopolies and crony economy and toward free enterprise and privatization"
suffice it to state that this is not a ground for this Court to nullify P.D. 1869. If, indeed, PD 1869
runs counter to the government's policies then it is for the Executive Department to
recommend to Congress its repeal or amendment.
The judiciary does not settle policy issues. The Court can only declare what the law
is and not what the law should be.1wphi1 Under our system of government, policy
issues are within the domain of the political branches of government and of the
people themselves as the repository of all state power. (Valmonte v. Belmonte, Jr.,
170 SCRA 256).
On the issue of "monopoly," however, the Constitution provides that:
Sec. 19. The State shall regulate or prohibit monopolies when public interest so
requires. No combinations in restraint of trade or unfair competition shall be allowed.
(Art. XII, National Economy and Patrimony)
It should be noted that, as the provision is worded, monopolies are not necessarily prohibited
by the Constitution. The state must still decide whether public interest demands that
monopolies be regulated or prohibited. Again, this is a matter of policy for the Legislature to
decide.
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family)
and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2
(Educational Values) of Article XIV of the 1987 Constitution, suffice it to state also that these
are merely statements of principles and, policies. As such, they are basically not selfexecuting, meaning a law should be passed by Congress to clearly define and effectuate such
principles.
In general, therefore, the 1935 provisions were not intended to be self-executing
principles ready for enforcement through the courts. They were rather directives
addressed to the executive and the legislature. If the executive and the legislature
failed to heed the directives of the articles the available remedy was not judicial or
political. The electorate could express their displeasure with the failure of the
executive and the legislature through the language of the ballot. (Bernas, Vol. II, p.
2)
Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47
Phil. 387; Salas v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v.
Comelec, 179 SCRA 287). Therefore, for PD 1869 to be nullified, it must be shown that there
is a clear and unequivocal breach of the Constitution, not merely a doubtful and equivocal one.
In other words, the grounds for nullity must be clear and beyond reasonable doubt. (Peralta v.
Comelec, supra) Those who petition this Court to declare a law, or parts thereof,
unconstitutional must clearly establish the basis for such a declaration. Otherwise, their
petition must fail. Based on the grounds raised by petitioners to challenge the constitutionality
of P.D. 1869, the Court finds that petitioners have failed to overcome the presumption. The
dismissal of this petition is therefore, inevitable. But as to whether P.D. 1869 remains a wise
legislation considering the issues of "morality, monopoly, trend to free enterprise, privatization
as well as the state principles on social justice, role of youth and educational values" being
raised, is up for Congress to determine.
As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board,
162 SCRA 521
Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any
case, in its favor the presumption of validity and constitutionality which petitioners
Valmonte and the KMU have not overturned. Petitioners have not undertaken to
identify the provisions in the Constitution which they claim to have been violated by
that statute. This Court, however, is not compelled to speculate and to imagine how
the assailed legislation may possibly offend some provision of the Constitution. The
Court notes, further, in this respect that petitioners have in the main put in question
the wisdom, justice and expediency of the establishment of the OPSF, issues which
are not properly addressed to this Court and which this Court may not
constitutionally pass upon. Those issues should be addressed rather to the political
departments of government: the President and the Congress.
Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so
when the gambling resorted to is excessive. This excessiveness necessarily depends not only
on the financial resources of the gambler and his family but also on his mental, social, and
spiritual outlook on life. However, the mere fact that some persons may have lost their material
fortunes, mental control, physical health, or even their lives does not necessarily mean that the
same are directly attributable to gambling. Gambling may have been the antecedent, but
certainly not necessarily the cause. For the same consequences could have been preceded
by an overdose of food, drink, exercise, work, and even sex.
WHEREFORE, the petition is DISMISSED for lack of merit.
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SO ORDERED.
CIVIL SERVICE COMMISSION, petitioner, vs. THE HON. COURT OF APPEALS and
ISMAEL A. MATHAY, JR., respondents.
G.R. No. 126366 December 15, 1999
ISMAEL A. MATHAY, JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs.
COURT OF APPEALS, CIVIL SERVICE COMMISSION and SANDY C. MARQUEZ,
respondents.
YNARES-SANTIAGO, J.:
Before this Court are three, consolidated petitions 1 filed under Rule 45 of the Revised Rules
of Court.
The facts behind the consolidated petitions are undisputed.
During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private
respondents 2 to positions in the Civil Service Unit ("CSU") of the local government of Quezon
City. Civil Service Units were created pursuant to Presidential Decree No. 51 which was
allegedly signed into law on November 15 or 16, 1972.
On February 23, 1990, the Secretary of Justice rendered Opinion No. 33, stating that
Presidential Decree No. 51 was never published in the Official Gazette. Therefore,
conformably with our ruling in Tanada vs. Tuvera3 the presidential decree is deemed never "in
force or effect and therefore cannot at present, be a basis for establishment of the
CSUs . . . ." 4
On June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing
all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from
issuance of the said Memorandum, all appointments in CSUs created pursuant to Presidential
Decree No. 51 on the ground that the same never became law. Among those affected by the
revocation of appointments are private respondents in these three petitions.
For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the
enactment of City Ordinance No. NC-140, Series of 1990, which established the Department
of Public Order and Safety ("DPOS").
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Despite the provision on absorption, the regular and permanent positions in the DPOS were
not filled due to lack of funds for the new DPOS and the insufficiency of regular and
permanent positions created.
Mayor Brigido R. Simon remedied the situation by offering private respondents contractual
appointments for the period of June 5, 1991 to December 31, 1991. The appointments were
renewed by Mayor Simon for the period of January 1, 1992 to June 30, 1992.
On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July
1, 1992, Mayor Mathay again renewed the contractual appointments of all private respondents
effective July 1 to July 31, 1992. Upon their expiry, these appointments, however, were no
longer renewed.
The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents'
appointments became the seed of discontent from which these three consolidated petitions
grew.
The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the
local chief executive. 9 The power of the city council or sanggunian, on the other hand, is
limited to creating, consolidatingand reorganizing city officers and positions supported by local
funds. The city council has no power to appoint. This is clear from Section 177 of B.P. 337
which lists the powers of the sanggunian. The power to appoint is not one of them. Expressio
inius est exclusio alterius. 10 Had Congress intended to grant the power to appoint to both the
city council and the local chief executive, it would have said so in no uncertain terms.
After the non-renewal of their appointments, private respondents in these two petitions
appealed to the Civil Service Commission. The CSC issued separate resolutions holding that
the reappointment of private respondents to the DPOS was automatic, pursuant to the
provision on absorption in Quezon City Ordinance No. NC-140, Series of 1990, 5 and ordering
their reinstatement to their former positions in the DPOS. 6 Petitioner brought petitions
for certiorari to this Court, 7 to annul the resolutions but, in accordance with Revised
Administrative Circular No. 1-95, the petition were referred to the Court of Appeals. As stated,
the Court of Appeals dismissed the petitions for certiorari.
By
ordering
petitioner
to
"reinstate"
private
respondents
pursuant
to
Section 3 of the Ordinance, the Civil Service Commission substituted its own judgment for that
of the appointing power. This cannot be done. In a long line of cases, 11 we have consistently
ruled that the Civil Service Commission's power is limited to approving or disapproving an
appointment. It does not have the authority to direct that an appointment of a specific
individual be made. Once the Civil Service Commission attests whether the person chosen to
fill a vacant position is eligible, its role in the appointment process necessarily ends. The Civil
Service Commission cannot encroach upon the discretion vested in the appointing authority.
We discuss the merits of the petitions of Mayor Ismael A. Mathay, Jr. jointly.
The Civil Service Commission argues that it is not substituting its judgment for that of the
appointing power and that it is merely implementing Section 3 of Ordinance NC-140.
In the instant petition for review, petitioner asserts that the Court of Appeals erred when it ruled
that respondent Civil Service Commission has the authority to direct him to "reinstate" private
respondents in the DPOS.
The Ordinance refers to the "personnel of the CSU", the identities of which could not be
mistaken. The resolutions of the Civil Service Commission likewise call for the reinstatement of
named individuals. There being no issue as to who are to sit in the newly created DPOS, there
is therefore no room left for the exercise of discretion. In Farinas vs. Barba, 12 we held that the
appointing
authority
is
not
bound
to
appoint
anyone
recommended
by
the sanggunian concerned, since the power of appointment is a discretionary power.
When the Civil Service Commission ordered the reinstatement of private respondents, it
technically issued a new appointment. 13 This task, i.e. of appointment, is essentially
discretionary and cannot be controlled even by the courts as long as it is properly and not
arbitrarily exercised by the appointing authority.
In Apurillo vs. Civil Service Commission, we held that "appointment is essentially a
discretionary power and must be performed by the officer in which it is vested." 14
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The above premises considered, we rule that the Civil Service Commission has no power to
order petitioner Ismael A. Mathay, Jr., to reinstate private respondents.
Petitioner similarly assails as error the Court of Appeals' ruling that private respondents should
be automatically absorbed in the DPOS pursuant to Section 3 of the Ordinance.
In its decision of March 21, 1996 the Court of Appeals held:
It is clear however, that Ordinance No. NC-140, absorbing the "present personnel of
the Civil Security Agent Unit" in the DPOS was earlier enacted, particularly on March
27, 1990, thus,private respondents were still holders of de jure appointments as
permanent regular employees at the time, and therefore, by operation of said
Ordinance private respondents were automatically absorbed in the DPOS effectively
as of March 27, 1990. 15 (Emphasis ours.)
The decision is based on the wrong premise.
Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated therein
is not possible. Since the CSU never legally came into existence, the private respondents
never held permanent positions. Accordingly, as petitioner correctly points out, 16 the private
respondents' appointments in the defunct CSU
were invalid ab initio. Their seniority and permanent status did not arise since they
have no valid appointment. For then to enter the Civil Service after the revocation
and cancellation of their invalid appointment, they have to be extended an original
appointment, subject again to the attesting power of the Civil Service Commission.
Being then not members of the Civil Service as of June 4, 1991, they cannot be
automatically absorbed/reappointed/appointed/reinstated into the newly created
DPOS. (Emphasis ours).
It is axiomatic that the right to hold public office is not a natural right. The right exists only by
virtue of a law expressly or impliedly creating and conferring it. 17 Since Presidential Decree 51
creating the CSU never became law, it could not be a source of rights. Neither could it impose
duties. It could not afford any protection. It did not create an office. It is as inoperative as
though it was never passed.
In Debulgado vs. Civil Service Commission 18 we held that "a void appointment cannot give
rise to security of tenure on the part of the holder of the appointment."
While the Court of Appeals was correct when it stated that "the abolition of an office does not
mean the invalidity of appointments thereto," 19 this cannot apply to the case at bar. In this
case, the CSU was not abolished. It simply did not come into existence as the Presidential
Decree creating it never became law.
At the most, private respondents held temporary and contractual appointments. The nonrenewal of these appointments cannot therefore be taken against petitioner. In Romualdez III
vs. Civil Service Commission 20we treated temporary appointments as follows:
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incidental interest." 23 As a general rule, one having no right or interest to protect cannot
invoke the jurisdiction of the court as a party-plaintiff in an action.
In the case at bar, it is evident that Jovito C. Labajo, not the Civil Service Commission, is the
real party in interest. It is Jovito C. Labajo who will be benefited or injured by his reinstatement
or non-reinstatement.
We are aware of our pronouncements in the recent case of Civil Service Commission v. Pedro
Dacoycoy 24which overturned our rulings in Paredes vs. Civil Service Commission 25 Mendez
vs. Civil Service Commission 26and Magpale vs. Civil Service Commission. 27 In Dacoycoy, we
affirmed the right of the Civil Service Commission to bring an appeal as the aggrieved party
affected by a ruling which may seriously prejudice the civil service system.
The aforementioned case, however, is different from the case at bar. Dacoycoy was an
administrative case involving nepotism whose deleterious effect on government cannot be
over emphasized. The subject of the present case, on the other hand, is "reinstatement."
WHEREFORE, the petitions of Ismael A. Mathay in G.R. No. 124374 and G.R. No. 126366 are
GRANTED and the decisions of the Court of Appeals dated March 21, 1996 and January 15,
1996 are REVERSED and SET ASIDE.
We fail to see how the present petition, involving as it does the reinstatement or nonreinstatement of one obviously reluctant to litigate, can impair the effectiveness of
government. Accordingly, the ruling inDacoycoy does not apply.
The petition of the Civil Service Commission in G.R. No. 126354 is DISMISSED for lack of
legal standing to sue. The assailed decision of the respondent Court of Appeals dated July 5,
1996 is AFFIRMED. No costs. SO ORDERED.
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