Merlin Magallona vs Secretary Eduardo Ermita
May 10, 2014
655 SCRA 476 Political Law National Territory RA 9522 is
Constitutional
In March 2009, Republic Act 9522, an act defining the archipelagic
baselines of the Philippines was enacted the law is also known
as the Baselines Law. This law was meant to comply with the
terms of the third United Nations Convention on the Law of the
Sea (UNCLOS III), ratified by the Philippines in February 1984.
Professor Merlin Magallona et al questioned the validity of RA
9522 as they contend, among others, that the law decreased the
national territory of the Philippines hence the law is
unconstitutional. Some of their particular arguments are as
follows:
a. the law abandoned the demarcation set by the Treaty of Paris
and other ancillary treaties this also resulted to the exclusion of
our claim over Sabah;
b. the law, as well as UNCLOS itself, describes the Philippine
waters as archipelagic waters which, in international law, opens
our waters landward of the baselines to maritime passage by all
vessels (innocent passage) and aircrafts (overflight), undermining
Philippine sovereignty and national security, contravening the
countrys nuclear-free policy, and damaging marine resources, in
violation of relevant constitutional provisions;
c. the classification of the Kalayaan Island Group (KIG), as well as
the Scarborough Shoal (bajo de masinloc), as a regime of islands
pursuant to UNCLOS results in the loss of a large maritime area
but also prejudices the livelihood of subsistence fishermen.
ISSUE: Whether or not the contentions of Magallona et al are
tenable.
HELD: No. The Supreme Court emphasized that RA 9522, or
UNCLOS, itself is not a means to acquire, or lose, territory. The
treaty and the baseline law has nothing to do with the acquisition,
enlargement, or diminution of the Philippine territory. What
controls when it comes to acquisition or loss of territory is the
international law principle on occupation, accretion, cession and
prescription and NOT the execution of multilateral treaties on the
regulations of sea-use rights or enacting statutes to comply with
the treatys terms to delimit maritime zones and continental
shelves.
The law did not decrease the demarcation of our territory. In fact
it increased it. Under the old law amended by RA 9522 (RA 3046),
we adhered with the rectangular lines enclosing the Philippines.
The area that it covered was 440,994 square nautical miles (sq. na.
mi.). But under 9522, and with the inclusion of the exclusive
economic zone, the extent of our maritime was increased to
586,210 sq. na.mi. (See image below for comparison)
If any, the baselines law is a notice to the international
community of the scope of the maritime space and submarine
areas within which States parties exercise treaty-based rights.
Anent their particular contentions:
a. The law did not abandon the Sabah claim. This is evident on the
provision of Section 2 of RA 9522:
Section 2. The definition of the baselines of the territorial sea of
the Philippine Archipelago as provided in this Act is without
prejudice to the delineation of the baselines of the territorial sea
around the territory of Sabah, situated in North Borneo, over
which the Republic of the Philippines has acquired dominion and
sovereignty.
b. UNCLOS may term our waters as archipelagic waters and that
we may term it as our internal waters, but the bottom line is that
our country exercises sovereignty over these waters and UNCLOS
itself recognizes that. However, due to our observance of
international law, we allow the exercise of others of their right of
innocent passage. No modern State can validly invoke its
sovereignty to absolutely forbid innocent passage that is exercised
in accordance with customary international law without risking
retaliatory measures from the international community.
c. The classification of the KIG (or the Spratlys), as well as the
Scarborough Shoal, as a regime of islands did not diminish our
maritime area. Under UNCLOS and under the baselines law, since
they are regimes of islands, they generate their own maritime
zones in short, they are not to be enclosed within the baselines
of the main archipelago (which is the Philippine Island group). This
is because if we do that, then we will be enclosing a larger area
which would already depart from the provisions of UNCLOS that
the demarcation should follow the natural contour of the
archipelago.
Nevertheless, we still continue to lay claim over the KIG and the
Scarborough Shoal through effective occupation.
NOTES:
Under UNCLOS and the baselines law, we have three levels of
maritime zones where we exercise treaty-based rights:
a. territorial waters 12 nautical miles from the baselines; where
we exercise sovereignty
b. contiguous zone 24 nautical miles from the baselines;
jurisdiction where we can enforce customs, fiscal, immigration,
and sanitation laws (CFIS).
c. exclusive economic zone 200 nautical miles from the baselines;
where we have the right to exploit the living and non-living
resources in the exclusive economic zone
Note: a fourth zone may be added which is the continental shelf
this is covered by Article 77 of the UNCLOS.
MOST REV. PEDRO ARIGO, et. al., Petitioners,vs.SCOTT H. SWIFT,
et. al., Respondents.
G.R. No. 206510 September 16, 2014
PONENTE: Villarama
TOPIC: Writ of kalikasan, UNCLOS, Immunity from suit
FACTS:
The USS Guardian is an Avenger-class mine
countermeasures ship of the US Navy. In December 2012, the US
Embassy in the Philippines requested diplomatic clearance for the
said vessel to enter and exit the territorial waters of the
Philippines and to arrive at the port of Subic Bay for the purpose
of routine ship replenishment, maintenance, and crew liberty. On
January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving
on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.
On January 15, 2013, the USS Guardian departed Subic
Bay for its next port of call in Makassar, Indonesia. On January 17,
2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran
aground on the northwest side of South Shoal of the Tubbataha
Reefs, about 80 miles east-southeast of Palawan. No one was
injured in the incident, and there have been no reports of leaking
fuel or oil.
 Petitioners claim that the grounding, salvaging and post-
salvaging operations of the USS Guardian cause and continue to
cause environmental damage of such magnitude as to affect the
provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros
Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu,
and Tawi-Tawi, which events violate their constitutional rights to a
balanced and healthful ecology.
ISSUES:
1. Whether or not petitioners have legal standing.
2. Whether or not US respondents may be held liable for
damages caused by USS Guardian.
3. Whether or not the waiver of immunity from suit
under VFA applies in this case.
HELD:
First issue: YES.
Petitioners have legal standing
Locus standi is a right of appearance in a court of justice
on a given question. Specifically, it is a partys personal and
substantial interest in a case where he has sustained or will sustain
direct injury as a result of the act being challenged, and calls for
more than just a generalized grievance. However, the rule on
standing is a procedural matter which this Court has relaxed for
non-traditional plaintiffs like ordinary citizens, taxpayers and
legislators when the public interest so requires, such as when the
subject matter of the controversy is of transcendental importance,
of overreaching significance to society, or of paramount public
interest.
In the landmark case of Oposa v. Factoran, Jr., we
recognized the public right of citizens to a balanced and
healthful ecology which, for the first time in our constitutional
history, is solemnly incorporated in the fundamental law. We
declared that the right to a balanced and healthful ecology need
not be written in the Constitution for it is assumed, like other civil
and polittcal rights guaranteed in the Bill of Rights, to exist from
the inception of mankind and it is an issue of transcendental
importance with intergenerational implications. Such right carries
with it the correlative duty to refrain from impairing the
environment.
On the novel element in the class suit filed by the
petitioners minors in Oposa, this Court ruled that not only do
ordinary citizens have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their
own and future generations.
Second issue: YES.
The US respondents were sued in their official capacity as
commanding officers of the US Navy who had control and
supervision over the USS Guardian and its crew. The alleged act or
omission resulting in the unfortunate grounding of the USS
Guardian on the TRNP was committed while they were
performing official military duties. Considering that the
satisfaction of a judgment against said officials will require
remedial actions and appropriation of funds by the US
government, the suit is deemed to be one against the US itself.
The principle of State immunity therefore bars the exercise of
jurisdiction by this Court over the persons of respondents Swift,
Rice and Robling.
During the deliberations, Senior Associate Justice Antonio
T. Carpio took the position that the conduct of the US in this case,
when its warship entered a restricted area in violation of R.A. No.
10067 and caused damage to the TRNP reef system, brings the
matter within the ambit of Article 31 of the United Nations
Convention on the Law of the Sea (UNCLOS). He explained that
while historically, warships enjoy sovereign immunity from suit
as extensions of their flag State, Art. 31 of the UNCLOS creates
an exception to this rule in cases where they fail to comply with
the rules and regulations of the coastal State regarding passage
through the latters internal waters and the territorial sea.
In the case of warships, as pointed out by Justice Carpio,
they continue to enjoy sovereign immunity subject to the
following exceptions:
Article 30: Non-compliance by warships with the laws and
regulations of the coastal State
If any warship does not comply with the laws and regulations of
the coastal State concerning passage through the territorial sea
and disregards any request for compliance therewith which is
made to it, the coastal State may require it to leave the territorial
sea immediately.
Article 31: Responsibility of the flag State for damage caused by a
warship or other government ship operated for non-commercial
purposes
The flag State shall bear international responsibility for any loss or
damage to the coastal State resulting from the non-compliance by
a warship or other government ship operated for non-commercial
purposes with the laws and regulations of the coastal State
concerning passage through the territorial sea or with the
provisions of this Convention or other rules of international law.
Article 32: Immunities of warships and other government ships
operated for non-commercial purposes
With such exceptions as are contained in subsection A
and in articles 30 and 31, nothing in this Convention affects the
immunities of warships and other government ships operated for
non-commercial purposes. A foreign warships unauthorized
entry into our internal waters with resulting damage to marine
resources is one situation in which the above provisions may
apply.
But what if the offending warship is a non-party to the UNCLOS, as
in this case, the US?
According to Justice Carpio, although the US to date has not
ratified the UNCLOS, as a matter of long-standing policy the US
considers itself bound by customary international rules on the
traditional uses of the oceans as codified in UNCLOS.
Moreover, Justice Carpio emphasizes that the US refusal to join
the UNCLOS was centered on its disagreement with UNCLOS
regime of deep seabed mining (Part XI) which considers the
oceans and deep seabed commonly owned by mankind, pointing
out that such has nothing to do with its the US acceptance of
customary international rules on navigation.
The Court also fully concurred with Justice Carpios view that non-
membership in the UNCLOS does not mean that the US will
disregard the rights of the Philippines as a Coastal State over its
internal waters and territorial sea. We thus expect the US to bear
international responsibility under Art. 31 in connection with the
USS Guardian grounding which adversely affected the Tubbataha
reefs. Indeed, it is difficult to imagine that our long-time ally and
trading partner, which has been actively supporting the countrys
efforts to preserve our vital marine resources, would shirk from its
obligation to compensate the damage caused by its warship while
transiting our internal waters. Much less can we comprehend a
Government exercising leadership in international affairs,
unwilling to comply with the UNCLOS directive for all nations to
cooperate in the global task to protect and preserve the marine
environment as provided in Article 197 of UNCLOS
Article 197: Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on
a regional basis, directly or through competent international
organizations, in formulating and elaborating international rules,
standards and recommended practices and procedures consistent
with this Convention, for the protection and preservation of the
marine environment, taking into account
characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present
controversy is beyond dispute. Although the said treaty upholds
the immunity of warships from the jurisdiction of Coastal States
while navigating the latters territorial sea, the flag States shall
be required to leave the territorial sea immediately if they flout
the laws and regulations of the Coastal State, and they will be
liable for damages caused by their warships or any other
government vessel operated for non-commercial purposes under
Article 31.
Third issue: NO.
 The waiver of State immunity under the VF A pertains
only to criminal jurisdiction and not to special civil actions such as
the present petition for issuance of a writ of Kalikasan. In fact, it
can be inferred from Section 17, Rule 7 of the Rules that a criminal
case against a person charged with a violation of an environmental
law is to be filed separately.
The Court considered a view that a ruling on the
application or non-application of criminal jurisdiction provisions of
the VFA to US personnel who may be found responsible for the
grounding of the USS Guardian, would be premature and beyond
the province of a petition for a writ of Kalikasan.
The Court also found unnecessary at this point to
determine whether such waiver of State immunity is indeed
absolute. In the same vein, we cannot grant damages which have
resulted from the violation of environmental laws. The Rules
allows the recovery of damages, including the collection of
administrative fines under R.A. No. 10067, in a separate civil suit
or that deemed instituted with the criminal action charging the
same violation of an environmental law.
THE PROVINCE OF NORTH COTABATO, et al .v . THE GOVERNMENT
OF THE REPUBLIC OF THE PHILIPPINES, et al .
President Gloria Macapagal-Arroyo, in line with the governments
policy of pursuing peace negotiations with the Moro Islamic
Liberation Front (MILF), asked Prime Minister Mahathir
Mohammad to convince the MILF to continue negotiating with the
government. MILF, thereafter, convened its Central Committee
and decided to meet with the Government of the Republic of the
Philippines (GRP). Formal peace talks were held in Libya which
resulted to the crafting of the GRP-MILF Tripoli Agreement on
Peace (Tripoli Agreement 2001) which consists of three (3)
aspects: a.) security aspect; b.) rehabilitation aspect; and c.)
ancestral domain aspect. Various negotiations were held which led
to the finalization of the Memorandum of Agreement on the
Ancestral Domain (MOA-AD). The said memorandum was set to be
signed last August 5, 2008. In its body, it grants the authority
and jurisdiction over the Ancestral Domain and Ancestral Lands of
the Bangsamoro to the Bangsamoro Juridical Entity (BJE). The
latter, in addition, has the freedom to enter into any economic
cooperation and trade relation with foreign countries. The
sharing between the Central Government and the BJE of total
production pertaining to natural resources is to be 75:25 in favor
of the BJE. The MOA-AD further provides for the extent of the
territory of the Bangsamoro. It describes it as the land mass as
well as the maritime, terrestrial, fluvial and alluvial domains,
including the aerial domain and the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region. With
regard to governance, on the other hand, a shared responsibility
and authority between the Central Government and BJE was
provided. The relationship was described as associative. With
the formulation of the MOA-AD, petitioners aver that the
negotiation and finalization of the MOA-AD violates constitutional
and statutory provisions on public consultation, as mandated by
Executive Order No. 3, and right to information. They further
contend that it violates the Constitution and laws. Hence, the filing
of the petition.
ISSUES:
1) Whether or not the MOA-AD violates constitutional and
statutory provisions on public consultation and right to
information 2) Whether or not the MOA-AD violates the
Constitution and the laws.
HELD:
The MOA-AD subject of the present cases is of public concern,
involving as it does the sovereignty and territorial integrity of the
State, which directly affects the lives of the public at large.
Intended as a splendid symmetry to the right to information
under the Bill of Rights is the policy of public disclosure under
Section 28, Article II of the Constitution which provides that
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. Moreover, the policy of full
public disclosure enunciated in above-quoted Section 28
complements the right of access to information on matters of
public concern found in the Bill of Rights. The right to information
guarantees the right of the people to demand information, while
Section 28 recognizes the duty of officialdom to give information
even if nobody demands. The policy of public disclosure
establishes a concrete ethical principle for the conduct of public
affairs in a genuinely open democracy, with the peoples right to
know as the centerpiece. It is a mandate of the State to be
accountable by following such policy. These provisions are vital to
the exercise of the freedom of expression and essential to hold
public officials at all times accountable to the people. Indubitably,
the effectivity of the policy of public disclosure need not await the
passing of a statute. As Congress cannot revoke this principle, it is
merely directed to provide for reasonable safeguards. The
complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure
derive the same self-executory nature. Since both provisions go
hand-in-hand, it is absurd to say that the broader right to
information on matters of public concern is already enforceable
while the correlative duty of the State to disclose its transactions
involving public interest is not enforceable until there is an
enabling law. Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a
continuing dialogue or process of communication between the
government and the people. It is in the interest of the State that
the channels for free political discussion be maintained to the end
that the government may perceive and be responsive to the
peoples will. Envisioned to be corollary to the twin rights to
information and disclosure is the design for feedback mechanisms.
The imperative of a public consultation, as a species of the right to
information, is evident in the marching orders to respondents.
The mechanics for the duty to disclose information and to conduct
public consultation regarding the peace agenda and process is
manifestly provided by E.O. No.
3. The preambulatory clause of E.O. No. 3 declares that there is a
need to further enhance the contribution of civil society to the
comprehensive peace process by institutionalizing the peoples
participation. One of the three underlying principles of the
comprehensive peace process is that it should be community-
based, reflecting the sentiments, values and principles important
to all Filipinos and shall be defined not by the government
alone, nor by the different contending groups only, but by all
Filipinos as one community. Included as a component of the
comprehensive peace process is consensus-building and
empowerment for peace, which includes continuing
consultations on both national and local levels to build consensus
for a peace agenda and process, and the mobilization and
facilitation of peoples participation in the peace process.Clearly,
E.O. No. 3 contemplates not just the conduct of a plebiscite to
effectuate continuing consultations, contrary to respondents
position that plebiscite is more than sufficient
consultation.Further, E.O. No. 3 enumerates the functions and
responsibilities of the PAPP, one of which is to conduct regular
dialogues with the National Peace Forum (NPF) and other peace
partners to seek relevant information, comments,
recommendations as well as to render appropriate and timely
reports on the progress of the comprehensive peace process. E.O.
No. 3 mandates the establishment of the NPF to be the principal
forum for the Presidential Adviser on Peace Progress (PAPP) to
consult with and seek advi[c]e from the peace advocates, peace
partners and concerned sectors of society on both national and
local levels, on the implementation of the comprehensive peace
process, as well as for government[-]civil society dialogue and
consensus-building on peace agenda and initiatives. In fine, E.O.
No. 3 establishes petitioners right to be consulted on the peace
agenda, as a corollary to the constitutional right to information
and disclosure. In general, the objections against the MOA-AD
center on the extent of the powers conceded therein to the BJE.
Petitioners assert that the powers granted to the BJE exceed those
granted to any local government under present laws, and even go
beyond those of the present ARMM. Before assessing some of the
specific powers that would have been vested in the BJE, however,
it would be useful to turn first to a general idea that serves as a
unifying link to the different provisions of the MOA-AD, namely,
the international law concept of association. Significantly, the
MOA-AD explicitly alludes to this concept, indicating that the
Parties actually framed its provisions with it in mind. Association is
referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last
mentioned provision, however, that the MOA-AD most clearly
uses it to describe the envisioned relationship between the BJE
and the Central Government.
4. The relationship between the Central Government and the
Bangsamoro juridical entity shall be associative characterized by
shared authority and responsibility with a structure of governance
based on executive, legislative, judicial and administrative
institutions with defined powers and functions in the
comprehensive compact. A period of transition shall be plebiscite unnecessary under the Constitution, precisely because
established in a comprehensive peace compact specifying the what these areas voted for then was their inclusion in the ARMM,
relationship between the Central Government and the BJE. The not the BJE.
nature of the associative relationship may have been intended
to be defined more precisely in the still to be forged Article II, Section 22 of the Constitution must also be amended if
Comprehensive Compact. Nonetheless, given that there is a the scheme envisioned in the MOA-AD is to be effected. That
concept of association in international law, and the MOA-AD constitutional provision states: The State recognizes and
by its inclusion of international law instruments in its TOR placed promotes the rights of indigenous cultural communities within the
itself in an international legal context, that concept of association framework of national unity and development. An associative
may be brought to bear in understanding the use of the term arrangement does not uphold national unity. While there may be
associative in the MOA-AD. The MOA-AD contains many a semblance of unity because of the associative ties between the
provisions which are consistent with the international legal BJE and the national government, the act of placing a portion of
concept of association, specifically the following: the BJEs Philippine territory in a status which, in international practice, has
capacity to enter into economic and trade relations with foreign generally been a preparation for independence, is certainly not
countries, the commitment of the Central Government to ensure conducive to national unity.
the BJEs participation in meetings and events in the ASEAN and
the specialized UN agencies, and the continuing responsibility of The MOA-AD cannot be reconciled with the present Constitution
the Central Government over external defense. Moreover, the and laws. Not only its specific provisions but the very concept
BJEs right to participate in Philippine official missions bearing on underlying them, namely, the associative relationship envisioned
negotiation of border agreements, environmental protection, and between the GRP and the BJE, are unconstitutional, for the
sharing of revenues pertaining to the bodies of water adjacent to concept presupposes that the associated entity is a state and
or between the islands forming part of the ancestral domain, implies that the same is on its way to independence.
resembles the right of the governments of FSM and the Marshall
While there is a clause in the MOA-AD stating that the provisions
Islands to be consulted by the U.S. government on any foreign
thereof inconsistent with the present legal framework will not be
affairs matter affecting them. These provisions of the MOA
effective until that framework is amended, the same does not cure
indicate, among other things, that the Parties aimed to vest in the
its defect. The inclusion of provisions in the MOA-AD establishing
BJE the status of an associated state or, at any rate, a status closely
an associative relationship between the BJE and the Central
approximating it. The concept of association is not recognized
Government is, itself, a violation of the Memorandum of
under the present Constitution. No province, city, or municipality,
Instructions from the President dated March 1, 2001, addressed to
not even the ARMM, is recognized under our laws as having an
the government peace panel. Moreover, as the clause is worded, it
associative relationship with the national government. Indeed,
virtually guarantees that the necessary amendments to the
the concept implies powers that go beyond anything ever granted
Constitution and the laws will eventually be put in place. Neither
by the Constitution to any local or regional government. It also
the GRP Peace Panel nor the President herself is authorized to
implies the recognition of the associated entity as a state. The
make such a guarantee. Upholding such an act would amount to
Constitution, however, does not contemplate any state in this
authorizing a usurpation of the constituent powers vested only in
jurisdiction other than the Philippine State, much less does it
Congress, a Constitutional Convention, or the people themselves
provide for a transitory status that aims to prepare any part of
through the process of initiative, for the only way that the
Philippine territory for independence.
Executive can ensure the outcome of the amendment process is
Even the mere concept animating many of the MOA-ADs through an undue influence or interference with that process.
provisions, therefore, already requires for its validity the
amendment of constitutional provisions, specifically the following
provisions of Article X: Saguisag vs Executive Secretary
SECTION 1. The territorial and political subdivisions of the Case Digest: GR 212426 Jan 12, 2016
Republic of the Philippines are the provinces, cities, municipalities,
and barangays. There shall be autonomous regions in Muslim
Mindanao and the Cordilleras as hereinafter provided. SECTION
15. There shall be created autonomous regions in Muslim Facts:
Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and
distinctive historical and cultural heritage, economic and social
Petitioners, as citizens, taxpayers and former legislators,
structures, and other relevant characteristics within the
questioned before the SC the constitutionality of EDCA (Enhanced
framework of this Constitution and the national sovereignty as
Defense Cooperation Agreement), an agreement entered into by
well as territorial integrity of the Republic of the Philippines.
the executive department with the US and ratified on June 6,
It is not merely an expanded version of the ARMM, the status of 2014. Under the EDCA, the PH shall provide the US forces the
its relationship with the national government being fundamentally access and use of portions of PH territory, which are called Agreed
different from that of the ARMM. Indeed, BJE is a state in all but Locations. Aside from the right to access and to use the Agreed
name as it meets the criteria of a state laid down in the Locations, the US may undertake the following types of activities
Montevideo Convention, namely, a permanent population, a within the Agreed Locations: security cooperation exercises; joint
defined territory, a government, and a capacity to enter into and combined training activities; humanitarian and disaster relief
relations with other states. activities; and such other activities that as may be agreed upon by
the parties.
The defining concept underlying the relationship between the
national government and the BJE being itself contrary to the
present Constitution, it is not surprising that many of the specific
Mainly, petitioners posit that the use of executive agreement as
provisions of the M OA-AD on the formation and powers of the
medium of agreement with US violated the constitutional
BJE are in conflict with the Constitution and the laws. Article X,
requirement of Art XVIII, Sec 25 since the EDCA involves foreign
Section 18 of the Constitution provides that [t]he creation of the
military bases, troops and facilities whose entry into the country
autonomous region shall be effective when approved by a
should be covered by a treaty concurred in by the Senate. The
majority of the votes cast by the constituent units in a plebiscite
Senate, through Senate Resolution 105, also expressed its position
called for the purpose, provided that only provinces, cities, and
that EDCA needs congressional ratification.
geographic areas voting favorably in such plebiscite shall be
included in the autonomous region. Section 25. After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United States of
The BJE is more of a state than an autonomous region. But even
America concerning military bases, foreign military bases, troops,
assuming that it is covered by the term autonomous region in
or facilities shall not be allowed in the Philippines except under a
the constitutional provision just quoted, the MOA-AD would still
treaty duly concurred in by the Senate and, when the Congress so
be in conflict with it. Under paragraph 2(c) on TERRITORY in
requires, ratified by a majority of the votes cast by the people in a
relation to 2(d) and 2(e), the present geographic area of the
national referendum held for that purpose, and recognized as a
ARMM and, in addition, the municipalities of Lanao del Norte
treaty by the other contracting State.
which voted for inclusion in the ARMM during the 2001 plebiscite
Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal are
automatically part of the BJE without need of another plebiscite,
in contrast to the areas under Categories A and B mentioned Issue 1: W/N the petitions as citizens suit satisfy the
earlier in the overview. That the present components of the requirements of legal standing in assailing the constitutionality of
ARMM and the above-mentioned municipalities voted for EDCA
inclusion therein in 2001, however, does not render another
No. In assailing the constitutionality of a governmental act,
petitioners suing as citizens may dodge the requirement of having
to establish a direct and personal interest if they show that the act
affects a public right. But here, aside from general statements
that the petitions involve the protection of a public right, and that
their constitutional rights as citizens would be violated, the
petitioners failed to make any specific assertion of a particular
public right that would be violated by the enforcement of EDCA.
For their failure to do so, the present petitions cannot be
considered by the Court as citizens suits that would justify a
disregard of the aforementioned requirements.
Issue 2: W/N the petitioners have legal standing as taxpayers
No. Petitioners cannot sue as taxpayers because EDCA is neither
meant to be a tax measure, nor is it directed at the disbursement
of public funds.
A taxpayers suit concerns a case in which the official act
complained of directly involves the illegal disbursement of public
funds derived from taxation. Here, those challenging the act must
specifically show that they have sufficient interest in preventing
the illegal expenditure of public money, and that they will sustain
a direct injury as a result of the enforcement of the assailed act.
Applying that principle to this case, they must establish that EDCA
involves the exercise by Congress of its taxing or spending powers.
A reading of the EDCA, however, would show that there has been
neither an appropriation nor an authorization of disbursement.
Issue 3: W/N the petitions qualify as legislators suit
No. The power to concur in a treaty or an international
agreement is an institutional prerogative granted by the
Constitution to the Senate. In a legislators suit, the injured party
would be the Senate as an institution or any of its incumbent
members, as it is the Senates constitutional function that is
allegedly being violated. Here, none of the petitioners, who are
former senators, have the legal standing to maintain the suit.
Issue 4: W/N the SC may exercise its Power of Judicial Review
over the case
Yes. Although petitioners lack legal standing, they raise matters of
transcendental importance which justify setting aside the rule on
procedural technicalities. The challenge raised here is rooted in
the very Constitution itself, particularly Art XVIII, Sec 25 thereof,
which provides for a stricter mechanism required before any
foreign military bases, troops or facilities may be allowed in the
country. Such is of paramount public interest that the Court is
behooved to determine whether there was grave abuse of
discretion on the part of the Executive Department.
Brion Dissent
Yes, but on a different line of reasoning. The petitioners satisfied
the requirement of legal standing in asserting that a public right
has been violated through the commission of an act with grave
abuse of discretion. The court may exercise its power of judicial
review over the act of the Executive Department in not submitting
the EDCA agreement for Senate concurrence not because of the
transcendental importance of the issue, but because the
petitioners satisfy the requirements in invoking the courts
expanded jurisdiction. Read more
Issue 5: W/N the non-submission of the EDCA agreement for
concurrence by the Senate violates the Constitution
No. The EDCA need not be submitted to the Senate for
concurrence because it is in the form of a mere executive
agreement, not a treaty. Under the Constitution, the President is
empowered to enter into executive agreements on foreign military
bases, troops or facilities if (1) such agreement is not the
instrument that allows the entry of such and (2) if it merely aims
to implement an existing law or treaty.
EDCA is in the form of an executive agreement since it merely
involves adjustments in detail in the implementation of the MTD
and the VFA. These are existing treaties between the Philippines
and the U.S. that have already been concurred in by the Philippine
Senate and have thereby met the requirements of the
Constitution under Art XVIII, Sec 25. Because of the status of
these prior agreements, EDCA need not be transmitted to the
Senate.
De Castro Dissent
No. The EDCA is entirely a new treaty, separate and distinct from
the VFA and the MDT. Whether the stay of the foreign troops in
the country is permanent or temporary is immaterial because the
Constitution does not distinguish. The EDCA clearly involves the
entry of foreign military bases, troops or facilities in the country.
Hence, the absence of Senate concurrence to the agreement
makes it an invalid treaty.
EPILOGUE
The fear that EDCA is a reincarnation of the U.S. bases so zealously
protested by noted personalities in Philippine history arises not so
much from xenophobia, but from a genuine desire for self-
determination, nationalism, and above all a commitment to
ensure the independence of the Philippine Republic from any
foreign domination.
Mere fears, however, cannot curtail the exercise by the President
of the Philippines of his Constitutional prerogatives in respect of
foreign affairs. They cannot cripple him when he deems that
additional security measures are made necessary by the times. As
it stands, the Philippines through the Department of Foreign
Affairs has filed several diplomatic protests against the actions of
the People's Republic of China in the West Philippine
Sea;462 initiated arbitration against that country under the United
Nations Convention on the Law of the Sea; 463 is in the process of
negotiations with the Moro Islamic Liberation Front for peace in
Southern Philippines,464 which is the subject of a current case
before this Court; and faces increasing incidents of kidnappings of
Filipinos and foreigners allegedly by the Abu Sayyaf or the New
People's Army.465 The Philippine military is conducting reforms that
seek to ensure the security and safety of the nation in the years to
come.466 In the future, the Philippines must navigate a world in
which armed forces fight with increasing sophistication in both
strategy and technology, while employing asymmetric warfare and
remote weapons.
Additionally, our country is fighting a most terrifying enemy: the
backlash of Mother Nature. The Philippines is one of the countries
most directly affected and damaged by climate change. It is no
coincidence that the record-setting tropical
cyclone Yolanda (internationally named Haiyan), one of the most
devastating forces of nature the world has ever seen hit the
Philippines on 8 November 2013 and killed at least 6,000
people.467 This necessitated a massive rehabilitation project. 468 In
the aftermath, the U.S. military was among the first to extend help
and support to the Philippines.
That calamity brought out the best in the Filipinos as thousands
upon thousands volunteered their help, their wealth, and their
prayers to those affected. It also brought to the fore the value of
having friends in the international community.
In order to keep the peace in its archipelago in this region of the
world, and to sustain itself at the same time against the
destructive forces of nature, the Philippines will need friends. Who
they are, and what form the friendships will take, are for the
President to decide. The only restriction is what the Constitution
itself expressly prohibits. It appears that this overarching concern
for balancing constitutional requirements against the dictates of
necessity was what led to EDCA.
As it is, EDCA is not constitutionally infirm. As an executive
agreement, it remains consistent with existing laws and treaties
that it purports to implement.
ICJ: Judgment in the Malaysia/Singapore case 23 May 2008
The ICJ has rendered its Judgment in
the case concerning the sovereignty
over three maritime features in the
Straits of Singapore, awarding the
largest islet to Singapore.
On Friday 23 May 2008, the
International Court of Justice (ICJ)
rendered its Judgment in the case
concerning the sovereignty over
PedraBranca/PulauBatuPuteh, Middle
Rocks and South Ledge (Malaysia/Singapore).
 The Court found that sovereignty over
PedraBranca/PulauBatuPuteh a small but strategically located
island in the Straits of Singapore belongs to the Republic of
Singapore and that sovereignty over Middle Rocks belongs to
Malaysia. The Court refrained from awarding South Ledge to
either country, ruling that sovereignty over the low-tide elevation
belongs to the State in whose territorial waters it is located.

The dispute between Malaysia and Singapore over the three

maritime features began in 1980 when Malaysia published an
official map depicting the island of PulauBatuPuteh (called
PedraBranca by Singapore) within Malaysias territorial waters. In
1993, the dispute expanded to Middle Rocks and South Ledge
when Singapore referred to the maritime features in the context
of its claim to PedraBranca.

The Court first found that the territorial domain of the Sultanate
of Johor (Malaysia) did cover in principle all the islands and islets
within the Straits of Singapore including
PedraBranca/PulauBatuPuteh. It found that no development
affected this original title until 1953.

After 1953 however, the Court found that the conduct of the
Parties could be seen as conduct titresouverain. This included
the investigation of shipwrecks by Singapore within the islands
territorial waters and the granting or not granting of permission by
Singapore to Malaysian officials to survey the waters surrounding
the island. Additionally, the Court considered that weight could
also be given in support of Singapores claim by way of Malaysias
absence of reaction to the flying of the Singapore ensign on the
island and Singapores installation of military equipment on the
island.

The Court accordingly found that sovereignty over Pedra

Blanca/PulauBatuPuteh belonged to Singapore.

The Court observed that the particular circumstances which led to

the finding of sovereignty over PedraBranca in favour of Singapore
did not apply to Middle Rocks. It thus concluded that sovereignty
over Middle Rocks remained with Malaysia as the successor to the
Sultanate of Johor.

As for South Ledge, the Court noted that this low-tide elevation
fell within the apparently overlapping territorial waters generated
by PedraBranca/PulauBatuPuteh and by Middle Rocks. Recalling
that it had not been mandated by the Parties to draw the line of
delimitation with respect to their territorial waters in the area, the
Court concluded that sovereignty over South Ledge belongs to the
State in the territorial waters of which it is located.

The Judgment of the Court is binding and without appeal.

Relations between Malaysia and Singapore have been highly

complex since the city-state was expelled from the Malaysian
Federation in 1965. Additionally, these three maritime features
are located at the eastern end of the Straits of Singapore, a highly
strategic passage scattered with islets at the crossing of Malaysia,
Singapore and Indonesia. The Straits are some of the busiest
maritime passages in the world, with nearly 40% of all the worlds
oil trade passing through there.
1. Introduction
The 2008 Malaysia/Singapore case before the International Court
of Justice relates to the dispute concerning territorial sovereignty
over three maritime features in the Straits of Singapore, namely
Pedra Branca/Pulau Batu Puteh, Middle Rocks and South
Ledge.1 Pedra Branca/Pulau Batu Puteh (hereafter Pedra Branca) is
a granite island, measuring 137 m long, with an average width
of 60 m.2 It is situated at the eastern entrance of the Straits of
Singapore one of the busiest maritime passages in the world. It
lies approximately 24 nautical miles to the east of Singapore, 7.7
nautical miles to the south of the Malaysian state of Johor and 7.6
nautical miles to the north of the Indonesian island of Bintan.
Middle Rocks consists of two clusters of small rocks that are
permanently above water, and is located 0.6 nautical miles to the
south of Pedra Branca. South Ledge is a low-tide elevation and lies
at 2.2 nautical miles to the south-south-west of Pedra Branca.3
On 21 December 1979, Malaysia published a map entitled
Territorial Waters and Continental Shelf Boundaries of Malaysia.
The map depicted the island of Pedra Branca as lying within
Malaysias territorial waters. By a diplomatic note dated 14
February 1980, Singapore rejected Malaysias claim to Pedra
Branca and requested that the 1979 map be corrected. Malaysia
and Singapore attempted in vain to settle the dispute through a
series of bilateral negotiations from 1993-1994. During the first
round of talks in February 1993, the question of the appurtenance
of Middle Rocks and South Ledge was also raised. In view of the
lack of progress in the negotiations, the Parties signed a Special
Agreement on 6 February 2003 (entered into force on 9 May
2003) and submitted the dispute to the International Court of
Justice (hereafter the ICJ or the Court) on 24 July 2003.4 Thus,
under Article 2 of the Special Agreement, the Court was requested
to determine whether sovereignty over Pedra Branca, Middle
Rocks and South Ledge belongs to Malaysia or Singapore.5
As the Court included upon the Bench no judge of the nationality
of either of the Parties, Malaysia chose Mr. Christopher John
Robert Dugard and Singapore Mr. Sreenivasa Rao Pemmaraju as
judges ad hoc. Since Judge Higgins recused herself from
participating in the present case pursuant to Article 17 (2) of the
Statute of the ICJ, the Vice-President, Judge Al-Khasawneh
exercised the functions of the presidency for the purposes of the
case.6 Against that background, this contribution seeks to
succinctly overview the Malaysia/Singapore case.7
2. Critical Date
In the context of a territorial dispute, the critical date upon which
the dispute crystallized is of particular importance.8 As stated in
the 2002 Indonesia/Malaysia judgment,9 the Court cannot take
into consideration acts having taken place after the critical date.
With regard to the dispute as to sovereignty over Pedra Branca,
the Court considered 14 February 1980, the time of Singapores
protest in response to Malaysias publication of the 1979 map, as
the critical date. Furthermore, the Court concluded that the
dispute as to sovereignty over Middle Rocks and South Ledge
crystallized on 6 February 1993.10
3. Sovereignty over Pedra Branca
Sovereignty
over Pedra
Branca is the
central issue of
the present
case. While
Singapore
argued that the
legal status of
Pedra Baranca
was that
of terra nullius,11 Malaysia maintained that it had an original title
to Pedra Branca of long standing.12 Thus, an arising question was
whether Malaysia has established its claim over the island. In this
respect, a principal issue relates to the question whether the
Sultanate of Johora predecessor of Malaysiahad sovereignty
over Pedra Branca.
On this issue, the ICJ examined three letters, all from 1824, written
by the British Resident in Singapore as well as an article from the
Singapore Free Press dated 25 May 1843. In light of these
documents, the Court considered that:
The Court also noted the fact that throughout the entire history of
the old Sultanate of Johor, there is no evidence that any
competing claim had ever been advanced over the islands in the
area of the Straits of Singapore.14 Hence, the Court concluded that
the Sultanate of Johor had original title to Pedra Branca.15 In
addition, the Court found that the nature and degree of the Sultan
of Johors authority exercised over the Orang Lautthe people of
the sea who were engaged in various activities in the waters in
the Straits of Singaporeconfirms the ancient original title of the
Sultanate of Johor to islands in the Straits of Singapore, including
Pedra Branca.16
By the 1824 Anglo-Dutch Treaty, the old Sultanate of Johor was
divided into the Sultanate of Johor with Sultan Hussein as its
sovereign and the Sultanate of Riau-Lingga with Sultan Abdul
Rahaman as its sovereign.17 In relation to this, a question was
raised as to whether the original title was affected by the
developments in the period 1824 to 1840.18 This question
includes two different issues: (i) whether the sovereign entity of
the Sultanate of Johor continued to exist as the same legal entity
after the division; and (ii) whether the territorial domain of the
new Sultanate of Johor included Pedra Branca.19
Concerning the first issue, the Court concluded from the
documentary evidence submitted by Malaysia that the Sultanate
of Johor continued to exist as the same sovereign entity
throughout the period 1512 to 1824.20 In relation to the second
issue, Singapore argued that the 1824 Treaty left the entire Straits
open for access; and that since Pedra Branca had become terra
nullius as a result of the disappearance of the old Sultanate of
Johor by the division of the Kingdom, there was a legal vacuum
with regard to sovereignty over Pedra Branca, leaving room for the
lawful possession of the island by the British during the period
of 1847-1851.21 Ultimately, the ICJ did not admit the argument of
Singapore. According to the Court, Article 12 of the 1824 Anglo-
Dutch Treaty would suggest that all the islands and islets, including
Pedra Branca, within the Straits fell on the British side of the
dividing line of the spheres of influence. Consequently, the legal
status of Pedra Branca remained as it had been, i.e. part of the
territorial domain of what continued to be called the Sultanate of
Johor after the division of the old Sultanate.22 In conclusion, the
Court held that:
Malaysia has established to the satisfaction of the Court that [] when the British started their preparations for the
construction of the lighthouse on Pedra Branca/Pulau Batu Puteh in 1844, this island was under the sovereignty
over the Sultan of Johor.
23
The next issue is
whether Malaysia
has retained
sovereignty over
Pedra Branca
following 1844 or
whether the sovereignty has since passed to Singapore.24 In fact,
Singapore contended that it acquired sovereignty over Pedra
Branca in 1844 on the basis of the construction and operation of
Horsburgh lighthouse on the island as well as various other
actions.25 In response to this question, the ICJ particularly
examined the conduct of the Parties relating to Padra Branca in
some detail.
In this context, an important element is the construction and
commissioning of Horsburgh lighthouse on Pedra Branca by the
United Kingdom between 1850-1851. Malaysia argued that the
conduct of the United Kingdom and Singapore related only to the
construction and commissioning of the lighthouse and later
operating it with the consent conferred by the Sultan of Johor and
the Temenggong in November 1844; and that they were not
actions intended to acquire sovereignty over Pedra Branca.26 By
contrast, Singapore contended that the United Kingdom acquired
title to the island in the period of 1847-1851 by taking lawful
possession of the island in connection with building the lighthouse
on it.27 In this regard, the ICJ did not draw any conclusions about
sovereignty on the basis of the construction and commissioning of
the lighthouse, while the Court noted that the only time the Johor
authorities were present throughout that process was the two-day
visit of the Temenggong and his followers in early June 1950.28
Thus, the central question is whether the conduct of the Parties
after the construction of the lighthouse on Pedra Branca provides
a basis for the passing of sovereignty over the island from Johor to
the United Kingdom, Singapores predecessor. In this respect, the
1953 correspondence is of central importance. On 12 June 1953,
the Colonial Secretary of Singapore sent a letter to the British
Adviser to the Sultan of Johor, writing that:
It is [now] desired to clarify the status of Pedra Branca. I would therefore be most grateful to know whether there is
any document showing a lease or grant of the rock or whether it has been ceded by the Government of the State of
29
Johore or in any other way disposed of.
In a letter dated 21 September 1953, the Acting State Secretary of
Johor replied as follows:
I have the honour to refer to your letter dated 12th June 1953, addressed to the British Adviser, Johor, on the
question of the status of Pedra Branca Rock some 40 miles from Singapore and to inform you that the Johor
Government does not claim ownership of Pedra Branca.
30
The opinions of the Parties were sharply divided with respect to
the significance and interpretation of this correspondence. In
particular, two issues must be highlighted.
The first issue is whether the Acting State Secretary had the legal
capacity to write the 1953 letter. In this regard, the Court did not
uphold the Malaysian argument that the Acting State Secretary
did not have the authority and capacity to write the 1953 letter.31
The second issue concerns the interpretation of the word
ownership in the reply of Johor. While in law ownership is
distinct from sovereignty, the ICJ took the view that in
international litigation, ownership over territory has sometimes
been used as equivalent to sovereignty. 32 According to the
Court, in light of the context of the request by Singapore, it is
evident that the letter addresses the issue of sovereignty over the
island. Accordingly, the Court held that: Johors reply shows that
as of 1953 Johor understood that it did not have sovereignty over
Pedra Branca/Pulau Batu Puteh.33
Further to this, the Court examined the various conduct of the
Parties after 1953.34 The Court ruled that the following actions of
Singapore can be seen as conduct titre de souverain:
(i) investigation by Singapore of shipwrecks in the waters around
Pedra Branca/Pulau Batu Puteh,
(ii) Singapores exercise of exclusive control over visits to the
island,
(iii) the installation by Singapore of military communications
equipment on the island in 1977, and
(iv) proposed reclamation by Singapore to extend the island.
In addition, the Court considered that the following actions of the
Parties gave some weight to Singapores case or signified the
failure of Malaysias argument. These actions include:
(i) the display of the British and Singapore ensigns on Pedra
Branca/Pulau Batu Puteh,
(ii) the delimitation of Malaysias territorial sea in 1969,
(iii) the inclusion of Horsburgh lighthouse as a Singapore Station
in the 1959 Malaysian report and the 1966 joint report and its
omission from the 1967 Malaysian report, and
(iv) official maps.
On the basis of the above considerations, the Court was obliged to
respond to the question of whether sovereignty over Pedra Branca
passed to the United Kingdom or Singapore. In this respect, the
Court recalled the position of the Acting Secretary of State of
Johor in 1953 that Johor did not claim ownership of Pedra Branca.
According to the Court, [t]hat statement has major
significance.35 The Court also stressed that the conduct of the
United Kingdom and Singapore includes acts titre de souverain;
and that Malaysia and its predecessors did not respond in any way
to that conduct. In addition to this, the Johor authorities and their
successors took no action at all in respect to the island from June
1850 for the whole of the following century or more.36 Overall, the
Court considered that the relevant facts reflect a convergent
evolution of the positions of the Parties concerning title to Pedra
Branca. Hence, the Court concluded, by twelve votes to four that
by 1980 sovereignty over Pedra Branca had passed to Singapore.37
4. Sovereignty over Middle Rocks and South Ledge
Concerning the legal status of Middle Rocks and South Ledge,
basically Singapore argued that sovereignty over these marine
features comes with sovereignty over Pedra Branca. According to
Singapore, whoever owns the island owns Middle Rocks and South
Ledge because they are dependencies of the island of Pedra
Branca.38 On the other hand, Malaysia claimed that Middle Rocks
and South Ledge have always been considered as features falling
within Johor/Malaysian jurisdiction. Malaysia also argued that
Singapore not only failed to protest against Malaysias
manifestations of sovereignty, but did not advance any claims of
its own to Middle Rocks and South Ledge either.39
The ICJ held that as far as the ancient original title held by the
Sultan of Johor was concerned, Middle Rocks should be
understood to have had the same legal status as Pedra Branca. In
relation to this, the Court clearly confirmed that the particular
circumstances concerning Pedra Branca which have come to affect
the passing of title to the island to Singapore do not apply to other
maritime features, namely, Middle Rocks and South Ledge. Hence,
the Court concluded, by fifteen votes to one that original title to
Middle Rocks should remain with Malaysia as the successor to the
Sultan of Johor.40
On the other hand, the legal status of South Ledge must be
distinguished from that of Middle Rocks, because South Ledge is a
low-tide elevation. In this regard, the Court recalled the
2001 Qatar/Bahrain case which stated that:
It is thus not established that in the absence of other rules and legal principles, low-tide elevations can, from the
41
viewpoint of the acquisition of sovereignty, be fully assimilated with islands or other land territory.
The Court also noted that South Ledge falls within the apparently
overlapping territorial waters generated by the mainland of
Malaysia, Pedra Branca and Middle Rocks. Thus, the Court found,
by fifteen votes to one, that sovereignty over South Ledge belongs
to the State in the territorial waters of which it is located.42 In so
ruling, it may be said that like the Qatar/Bahrain judgment, the
Court, in the Malaysia/Singapore case, did not assimilate low-tide
elevations to land territory or islands.43
5. Some Remarks on the Malaysia/Singapore Judgment
As territory is one of the fundamental elements of States, the
determination of the spatial ambit of territorial sovereignty is of
vital importance in international law. Thus, clarification of rules
applicable to the acquisition of territory is of central importance in
the international legal system.44 There appears to be little doubt
that the ICJ has an important role to play in the development of
the international law on acquisition of territory. In fact, it can be
observed that the Court is developing the law in a way that differs
from the traditional modes of acquisition.45
A remarkable feature of the Malaysia/Singapore judgment relates
to the passing of legal title from Malaysia, i.e. the original title
holder, to Singapore by the conduct of the Parties. Relating to this,
it must be recalled that a distinction was made between the
creation of a new right and the existence of the right in the Island
of Palmas case.46 The ICJ, in the present case, appeared to give
more weight to the existence of the right. According to the Courts
approach, much weight would be given to the continuous and
peaceful display of territorial sovereignty.47 It appears that
the Malaysia/Singapore judgment provides an interesting
precedent pertaining to the loss of territory in international law.
In light of the need to preserve the stability and certainty of State
sovereignty, the process of passing of a legal title over territory
from a State possessing the original title to another State will
invite careful consideration. Considering this issue, the
relationship between legal title and effectivits must be noted.48 In
this regard, the ICJ, in the 1986 Frontier Dispute judgment
between Burkina Faso/Republic of Mali, made clear that:
Where the act corresponds exactly to law, where effective administration is additional to the uti possidetis juris, the
only role of effectivit is to confirm the exercise of the right derived from a legal title. Where the act does not

correspond to the law, where the territory which is the subject of the dispute is effectively administered by a State (i) effective exercise of State authority and intention to conduct
other than the one possessing the legal title, preference should be given to the holder of the title. In the event that titre de
the effectivit does not co-exist with any legal title, it must invariably be taken into consideration. Finally, there are souverain,
cases where the legal title is not capable of showing exactly the territorial expanse to which it relates. (ii) peaceful and continuous exercise of State authority,
The effectivit can then play an essential role in showing how the title is interpreted in practice.
49
(iii) public exercise of authority titre de souverain,
(iv) enduring for a long length of time.67
This formula was echoed by the 1994 Libya/Chad,50 the
2002Indonesia/Malaysia,51 and By applying these criteria, Judges Simma and Abraham concluded
the 2002 Cameroon/Nigeria judgments.52 In that a claim on the basis of prescription would have been
the Malaysia/Singapore dispute, Singapores effectivits do not unsuccessful.68 Judge ad hoc Dugard reached the same
correspond to the law, because Malaysia established its original conclusion.69
title over Pedra Branca. Hence, according to the formula of the
Court, preference must be given to Malaysia. As with all types of law, the antithesis between stability and
change is a fundamental issue underlying international law of
As Judges Simma and Abraham pointedly observed, it is arguable acquisition of territory. This will produce a difficult question how it
that an original title of a State cannot be passed to another State, is possible to reconcile the requirement of stability of sovereignty
unless there is consent of the holder of the legal title to the and change of circumstances with the passage of time.
cession of that title to another State.53 In relation to this, the ICJ, The Malaysia/Singapore judgment will provide an important
in the present case, explicitly stated that: example for discussion in this matter.

[A]ny passing of sovereignty over territory on the basis of the conduction of the Parties [] must be manifested
54
clearly and without any doubt by that conduct and the relevant fact.

Thus, an essential question is whether there was a clear

manifestation of the Parties in order to pass sovereignty over
Pedra Branca from Malaysia to Singapore.

In this regard, the Courts interpretation of the 1953

correspondence written by the Acting State Secretary of Johor will
have particular importance for years to come. As explained earlier,
the Court gave major significance to the correspondence.
Nonetheless, it would appear that the Courts interpretation
leaves some room for discussion. For example, given that, as the
Court held, Johor did have title to Pedra Branca, it would appear
difficult to consider from Acting State Secretary of Johors
correspondence that as of 1953 Johor understood that it did not
have sovereignty over the island.55 Does the 1953 correspondence
amount to a renunciation or abandonment of sovereignty by
Johor? The answer would be no. Indeed, Singapore has never
argued that Johor abandoned or relinquished its title to Pedra
Branca in 1953.56 Considering that the Sultan of Johor was not a
fully independent State but a protectorate, it may also be
debatable that the Acting State Secretary of Johor had the
authority to pronounce on matters of sovereignty.57 The ICJ itself
made clear that Johor was merely asked for information, and
Johors denial of ownership cannot be interpreted as a binding
undertaking.58 In light of the uncertainty over the 1953
correspondence, opinions may be divided with respect to the legal
effect of this document.

Further to this, the concept of an evolving understanding shared

by the Parties or a convergent evolution of the position of the
Parties will require further consideration. Basically the Court
appeared to examine a series of events as the formation of the
evolving views or evolving understanding shared by the Parties
about sovereignty over Pedra Branca.59 Although the Court did
not define the precise meaning of this concept, it may be argued
that this concept is essentially equivalent to tacit agreement
between the parties arising from their conduct.60 According to
the dictum of the Court, arguably the evolving understanding must
be manifested clearly and without any doubt through the
conduct of the Parties. Yet there appears to be scope to reconsider
the question whether the evolving understanding of the Parties
was clearly formulated with respect to the title over Pedra Branca
in the period from 1953 to 1980.61

Finally, some mention should be made of acquisitive prescription

in the Malaysia/Singapore case. In this case, Singapore carefully
avoided the reference to the notion of prescription,62 and this
point was confirmed by Malaysia.63 Consequently, the ICJ did not
examine the role of prescription in
the Malaysia/Singapore dispute. However, some members of the
Court addressed this issue in their Dissenting Opinions. In this
regard, Judge ad hoc Dugard took the view that Singapores
argument was similar to prescription.64 Judges Simma and
Abraham echoed this view.65 While the validity of acquisitive
prescription as a mode of the acquisition of territory has been the
subject of extensive discussion,66 Judges Simma and Abraham
specified four conditions of the application of acquisitive
Philippines v. China
prescription:
The international Arbitral Tribunal on Tuesday issued its award on
the arbitration case between Philippines and China over the West
Philippine Sea (South China Sea) dispute.
BACKSTORY: Philippines wins arbitration case vs. China over South
China Sea
In a 501-page award, the Tribunal decided in favor of the
Philippines and said that China does not have historic rights to the
South China Sea and that their nine-dash line claim has no legal
basis.
Below are five key points included in the summary statement
released to the media
(1)Historic Rights and the Nine-Dash Line:
The Tribunal concluded that, to the extent China had historic
rights to resources in the waters of the South China Sea, such
rights were extinguished to the extent they were incompatible
with the exclusive economic zones provided for in the Convention.
The Tribunal also noted that, although 2 Chinese navigators and
fishermen, as well as those of other States, had historically made
use of the islands in the South China Sea, there was no evidence
that China had historically exercised exclusive control over the
waters or their resources.
The Tribunal concluded that there was no legal basis for China to
claim historic rights to resources within the sea areas falling within
the nine-dash line.
(2)Status of Features:
The Tribunal noted that the reefs have been heavily modified by
land reclamation and construction, recalled that the Convention
classifies features on their natural condition, and relied on
historical materials in evaluating the features.
The Tribunal found historical evidence to be more relevant and
noted that the Spratly Islands were historically used by small
groups of fishermen and that several Japanese fishing and guano
mining enterprises were attempted.
The Tribunal concluded that such transient use does not constitute
inhabitation by a stable community and that all of the historical
economic activity had been extractive. Accordingly, the Tribunal
concluded that none of the Spratly Islands is capable of generating
extended maritime zones.
The Tribunal also held that the Spratly Islands cannot generate
maritime zones collectively as a unit. Having found that none of
the features claimed by China was capable of generating an
exclusive economic zone, the Tribunal found that it could
without delimiting a boundarydeclare that certain sea areas are
within the exclusive economic zone of the Philippines, because
those areas are not overlapped by any possible entitlement of
China.
(3)Lawfulness of Chinese Actions:
Having found that certain areas are within the exclusive economic
zone of the Philippines, the Tribunal found that China had violated
the Philippines sovereign rights in its exclusive economic zone by
(a) interfering with Philippine fishing and petroleum exploration,
(b) constructing artificial islands and (c) failing to prevent Chinese
fishermen from fishing in the zone.
The Tribunal also held that fishermen from the Philippines (like
those from China) had traditional fishing rights at Scarborough
Shoal and that China had interfered with these rights in restricting
access.
The Tribunal further held that Chinese law enforcement vessels
had unlawfully created a serious risk of collision when they
physically obstructed Philippine vessels.
(4)Harm to Marine Environment:
The Tribunal considered the effect on the marine environment of
Chinas recent large-scale land reclamation and construction of
artificial islands at seven features in the Spratly Islands and found
that China had caused severe harm to the coral reef environment
and violated its obligation to preserve and protect fragile
ecosystems and the habitat of depleted, threatened, or
endangered species.
The Tribunal also found that Chinese authorities were aware that
Chinese fishermen have harvested endangered sea turtles, coral,
and giant clams on a substantial scale in the South China Sea
(using methods that inflict severe damage on the coral reef
environment) and had not fulfilled their obligations to stop such
activities
(5)Aggravation of Dispute:
Finally, the Tribunal considered whether Chinas actions since the
commencement of the arbitration had aggravated the dispute
between the Parties.
The Tribunal found that it lacked jurisdiction to consider the
implications of a stand-off between Philippine marines and
Chinese naval and law enforcement vessels at Second Thomas
Shoal, holding that this dispute involved military activities and was
therefore excluded from compulsory settlement.
The Tribunal found, however, that Chinas recent large-scale land
reclamation and construction of artificial islands was incompatible
with the obligations on a State during dispute resolution
proceedings, insofar as China has inflicted irreparable harm to the
marine environment, built a large artificial island in the
Philippines exclusive economic zone, and destroyed evidence of
the natural condition of features in the South China Sea that
formed part of the Parties dispute.
BACKSTORY: #InquirerSeven FAQ about the Philippines vs. China
arbitration case
The Convention
Under the United Nations Convention on the Law of the Sea
(UNCLOS) a coastal state needs to have land before they can claim
rights to the sea. The international treaty has been signed and
ratified by both the Philippines and China.
You need to have land before you can have rights to the sea. Its
as simple as that.You cannot just have rights to the sea without
owning land, former Solicitor General Francis Jardeleza said in a
forum at the University of the Philippines (UP) Law Center in 2014,
citing the basic principle of UNCLOS.
China asserts it has indisputable sovereignty and historic
rights to over two-thirds of the 3.5 million square kilometers
South China Sea using its nine-dash line claim that overlaps with
the UNCLOS-mandated 200-nautical-mile Exclusive Economic Zone
(EEZ).
The line, encircling an area roughly the size of Mexico, overlaps
territories claimed by the Philippines, Vietnam, Malaysia, Brunei
and Taiwan. China argues that its historic rights justify the line. But
the Philippines insists that these rights cannot be used to define
sea borders.
The Philippines says since the South China Sea is mostly sea, there
is no land mass or clumps of islands and rocks there large enough
to generate sea borders that will span the over 2 million square
kilometers China is claiming with its nine-dash line.
In recent months, China has conducted massive land reclamation
activities turning submerged reefs into artificial islands capable of
hosting military equipment and structures.
Unclos, however, does not recognize artificial islands and states
that these are not entitled to a 12 nautical mile territorial sea nor
a 200 nm eez.
CAPITOL WIRELESS, INC., Petitioner, v. THE PROVINCIAL
TREASURER OF BATANGAS, THE PROVINCIAL ASSESSOR OF
BATANGAS, THE MUNICIPAL TREASURER AND ASSESSOR OF
NASUGBU, BATANGAS, Respondents.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule
45 of the Rules of Court seeking to annul and set aside the Court
of Appeals' Decision1 dated May 30, 2007 and Resolution2 dated
October 8, 2007 in CA-G.R. SP No. 82264, which both denied the
appeal of petitioner against the decision of the Regional Trial
Court.
Below are the facts of the case.
Petitioner Capitol Wireless Inc. (Capwire) is a Philippine
corporation in the business of providing international
telecommunications services.3 As such provider, Capwire has
signed agreements with other local and foreign
telecommunications companies covering an international network
of submarine cable systems such as the Asia Pacific Cable Network
System (APCN) (which connects Australia, Thailand, Malaysia,
Singapore, Hong Kong, Taiwan, Korea, Japan, Indonesia and the
Philippines); the Brunei-Malaysia-Philippines Cable Network
System (BMP-CNS), the Philippines-Italy (SEA-ME-WE-3 CNS), and
the Guam Philippines (GP-CNS) systems.4 The agreements provide
for co-ownership and other rights among the parties over the
network.5
Petitioner Capwire claims that it is co-owner only of the so-called
"Wet Segment" of the APCN, while the landing stations or
terminals and Segment E of APCN located in Nasugbu, Batangas
are allegedly owned by the Philippine Long Distance Telephone
Corporation (PLDT).6 Moreover, it alleges that the Wet Segment is
laid in international, and not Philippine, waters.7
Capwire claims that as co-owner, it does not own any particular
physical part of the cable system but, consistent with its financial
contributions, it owns the right to use a certain capacity of the
said system.8 This property right is allegedly reported in its
financial books as "Indefeasible Rights in Cable Systems."
However, for loan restructuring purposes, Capwire claims that "it
was required to register the value of its right," hence, it engaged
an appraiser to "assess the market value of the international
submarine cable system and the cost to Capwire."10 On May 15,
2000, Capwire submitted a Sworn Statement of True Value of Real
Properties at the Provincial Treasurer's Office, Batangas City,
Batangas Province, for the Wet Segment of the system, stating:
System
Sound Value
APCN P 203,300,000.00
BMP-CNS P 65,662,000.00
SEA-ME-WE-3 CNS P P 7,540,000.00
GP-CNS P1,789,000.00
Capwire claims that it also reported that the system
"interconnects at the PLDT Landing Station in Nasugbu, Batangas,"
which is covered by a transfer certificate of title and tax
declarations in the name of PLDT.11
As a result, the respondent Provincial Assessor of Batangas
(Provincial Assessor) issued the following Assessments of Real
Property (ARP) against Capwire:
ARP Cable System Assessed Value
019-00967 BMP-CNS P 52,529,600.00
019-00968 APCN P 162,640,000.00
019-00969 SEA-ME-WE3-CNS P 6,032,000.00
019-00970 GP-CNS P 1,431,200.00
In essence, the Provincial Assessor had determined that the
submarine cable systems described in Capwire's Sworn Statement
of True Value of Real Properties are taxable real property, a
determination that was contested by Capwire in an exchange of
letters between the company and the public respondent.12 The
reason cited by Capwire is that the cable system lies outside of
Philippine territory, i.e., on international waters.13
On February 7, 2003 and March 4, 2003, Capwire received a
Warrant of Levy and a Notice of Auction Sale, respectively, from
the respondent Provincial Treasurer of Batangas (Provincial
Treasurer).14
On March 10, 2003, Capwire filed a Petition for Prohibition and
Declaration of Nullity of Warrant of Levy, Notice of Auction Sale
and/or Auction Sale with the Regional Trial Court (RTC) of
Batangas City.15
Alter the filing of the public respondents' Comment,16 on May 5,
2003, the RTC issued an Order dismissing the petition for failure of
the petitioner Capwire to follow the requisite of payment under
protest as well as failure to appeal to the Local Board of
Assessment Appeals (LBAA), as provided for in Sections 206 and
226 of Republic Act (R.A.) No. 7160, or the Local Government
Code.17
Capwire filed a Motion for Reconsideration, but the same was
likewise dismissed by the RTC in an Order19 dated August 26,
2003. It then filed an appeal to the Court of Appeals.20
On May 30, 2007, the Court of Appeals promulgated its Decision
dismissing the appeal filed by Capwire and affirming the order of
the trial court. The dispositive portion of the CA's decision states:
WHEREFORE, premises considered, the assailed Orders dated May
5, 2003 and August 26, 2003 of the Regional Trial Court, Branch 11
of Batangas City, are AFFIRMED.
SO ORDERED.21
The appellate court held that the trial court correctly dismissed
Capwire's petition because of the latter's failure to comply with
the requirements set in Sections 226 and 229 of the Local
Government Code, that is, by not availing of remedies before
administrative bodies like the LBAA and the Central Board of
Assessment Appeals (CBAA).22 Although Capwire claims that it
saw no need to undergo administrative proceedings because its
petition raises purely legal questions, the appellate court did not
share this view and noted that the case raises questions of fact,
such as the extent to which parts of the submarine cable system
lie within the territorial jurisdiction of the taxing authorities, the
public respondents.23 Further, the CA noted that Capwire failed to
pay the tax assessed against it under protest, another strict
requirement under Section 252 of the Local Government Code.24
Hence, the instant petition for review of Capwire.
Petitioner Capwire asserts that recourse to the Local Board of
Assessment Appeals, or payment of the tax under protest, is
inapplicable to the case at bar since there is no question of fact
involved, or that the question involved is not the reasonableness
of the amount assessed but, rather, the authority and power of
the assessor to impose the tax and of the treasurer to collect it.25
It contends that there is only a pure question of law since the
issue is whether its submarine cable system, which it claims lies in
international waters, is taxable.26 Capwire holds the position that
the cable system is not subject to tax.27cralawred
Respondents assessors and treasurers of the Province of
Batangasana Municipality of Nasugbu, Batangas disagree with
Capwire and insist that the case presents questions of fact such as
the extent and portion of the submarine cable system that lies
within the jurisdiction of the said local governments, as well as the
nature of the so-called indefeasible rights as property of
Capwire.28 Such questions are allegedly resolvable only before
administrative agencies like the Local Board of Assessment
Appeals.29
The Court confronts the following issues: Is the case cognizable by
the administrative agencies and covered by the requirements in
Sections 226 and 229 of the Local Government Code which makes
the dismissal of Capwire's petition by the RTC proper? May
submarine communications cables be classified as taxable real
property by the local governments?
The petition is denied. No error attended the ruling of the
appellate court that the case involves factual questions that
should have been resolved before the appropriate administrative
bodies.
In disputes involving real property taxation, the general rule is to
require the taxpayer to first avail of administrative remedies and
pay the tax under protest before allowing any resort to a judicial
action, except when the assessment itself is alleged to be illegal or
is made without legal authority.30 For example, prior resort to
administrative action is required when among the issues raised is
an allegedly erroneous assessment, like when the reasonableness
of the amount is challenged, while direct court action is permitted
when only the legality, power, validity or authority of the
assessment itself is in question.31 Stated differently, the general
rule of a prerequisite recourse to administrative remedies applies
when questions of fact are raised, but the exception of direct
court action is allowed when purely questions of law are
involved.32
This Court has previously and rather succinctly discussed the
difference between a question of fact and a question of law. In
Cosmos Bottling Corporation v. Nagrama, Jr.,33 it held:
The Court has made numerous dichotomies between questions of
law and fact. A reading of these dichotomies shows that labels
attached to law and fact are descriptive rather than definitive. We
are not alone in Our difficult task of clearly distinguishing
questions of feet from questions of law. The United States
Supreme Court has ruled that: "we [do not| yet know of any other
rule or principle that will unerringly distinguish a tactual finding
from a legal conclusion."
In Ramos v. Pepsi-Cola Bottling Co. of the P.I., the Court ruled:
There is a question of law in a given case when the doubt or
difference arises as to what the law is on a certain state of facts;
there is a question of fact when the doubt or difference arises as
to the truth or the falsehood of alleged facts.
We shall label this the doubt dichotomy.
In Republic v. Sandiganbayan, the Court ruled:
x xx A question of law exists when the doubt or controversy
concerns the correct application of law or jurisprudence to a
certain set of facts; or when the issue docs not call for an
examination of the probative value of the evidence presented, the
truth or falsehood of facts being admitted. In contrast, a question
of fact exists when the doubt or difference arises as to the truth or
falsehood of facts or when the query invites calibration of the
whole evidence considering mainly the credibility of the
witnesses, the existence and relevancy of specific surrounding
circumstances as well as their relation to each other and to the
whole, and the probability of the situation.
For the sake of brevity, We shall label this the law application and
calibration dichotomy.
In contrast, the dynamic legal scholarship in the United States has
birthed many commentaries on the question of law and question
of fact dichotomy. As early as 1944, the law was described as
growing downward toward "roots of fact" which grew upward to
meet it. In 1950, the late Professor Louis Jaffe saw fact and law as
a spectrum, with one shade blending imperceptibly into the other.
Others have defined questions of law as those that deal with the
general body of legal principles; questions of fact deal with "all
other phenomena x xx." Kenneth Gulp Davis also weighed in and
noted that the difference between fact and law has been
characterized as that between "ought" questions and "is"
questions.34
Guided by the quoted pronouncement, the Court sustains the CA's
finding that petitioner's case is one replete with questions of fact
instead of pure questions of law, which renders its filing in a
judicial forum improper because it is instead cognizable by local
administrative bodies like the Board of Assessment Appeals, which
are the proper venues for trying these factual issues. Verily, what
is alleged by Capwire in its petition as "the crux of the
controversy," that is, "whether or not an indefeasible right over a
submarine cable system that lies in international waters can be
subject to real property tax in the Philippines,"35 is not the
genuine issue that the case presents - as it is already obvious and
fundamental that real property that lies outside of Philippine
territorial jurisdiction cannot be subjected to its domestic and
sovereign power of real property taxation - but, rather, such
factual issues as the extent and status of Capwire's ownership of
the system, the actual length of the cable/s that lie in Philippine
territory, and the corresponding assessment and taxes due on the
same, because the public respondents imposed and collected the
assailed real property tax on the finding that at least a portion or
some portions of the submarine cable system that Capwire owns
or co-owns lies inside Philippine territory. Capwire's disagreement
with such findings of the administrative bodies presents little to no
legal question that only the courts may directly resolve.
Instead, Capwire argues and makes claims on mere assumptions
of certain facts as if they have been already admitted or
established, when they have not, since no evidence of such have
yet been presented in the proper agencies and even in the current
petition. As such, it remains unsettled whether Capwire is a mere
co-owner, not full owner, of the subject submarine cable and, if
the former, as to what extent; whether all or certain portions of
the cable are indeed submerged in water; and whether the waters
wherein the cable/s is/are laid are entirely outside of Philippine
territorial or inland waters, i.e., in international waters. More
simply, Capwire argues based on mere legal conclusions,
culminating on its claim of illegality of respondents' acts, but the
conclusions are yet unsupported by facts that should have been
threshed out quasi-judicially before the administrative agencies. It
has been held that "a bare characterization in a petition of
unlawfulness, is merely a legal conclusion and a wish of the
pleader, and such a legal conclusion unsubstantiated by facts
which could give it life, has no standing in any court where issues
must be presented and determined by facts in ordinary and
concise language."36 Therefore, Capwire's resort to judicial action,
premised on its legal conclusion that its cables (the equipment
being taxed) lie entirely on international waters, without first
administratively substantiating such a factual premise, is improper
and was rightly denied. Its proposition that the cables lie entirely
beyond Philippine territory, and therefore, outside of Philippine
sovereignty, is a fact that is not subject to judicial notice since, on
the contrary, and as will be explained later, it is in fact certain that
portions of the cable would definitely lie within Philippine waters.
Jurisprudence on the Local Government Code is clear that facts
such as these must be threshed out administratively, as the courts
in these types of cases step in at the first instance only when pure
questions of law are involved.
Nonetheless, We proceed to decide on whether submarine wires
or cables used for communications may be taxed like other real
estate.
We hold in the affirmative.
Submarine or undersea communications cables are akin to electric
transmission lines which this Court has recently declared in Manila
Electric Company v. City Assessor and City Treasurer of Lucena
City,37 as "no longer exempted from real property tax" and may
qualify as "machinery" subject to real property tax under the Local
Government Code. To the extent that the equipment's location is
determinable to be within the taxing authority's jurisdiction, the
Court sees no reason to distinguish between submarine cables
used for communications and aerial or underground wires or lines
used for electric transmission, so that both pieces of property do
not merit a different treatment in the aspect of real property
taxation. Both electric lines and communications cables, in the
strictest sense, are not directly adhered to the soil but pass
through posts, relays or landing stations, but both may be
classified under the term "machinery" as real property under
Article 415(5)38 of the Civil Code for the simple reason that such
pieces of equipment serve the owner's business or tend to meet
the needs of his industry or works that are on real estate. Even
objects in or on a body of water may be classified as such, as
"waters" is classified as an immovable under Article 415(8)39 of
the Code. A classic example is a boathouse which, by its nature, is
a vessel and, therefore, a personal property but, if it is tied to the
shore and used as a residence, and since it floats on waters which
is immovable, is considered real property.40 Besides, the Court
has already held that "it is a familiar phenomenon to see things
classed as real property for purposes of taxation which on general
principle might be considered personal property."41
Thus, absent any showing from Capwire of any express grant of an
exemption for its lines and cables from real property taxation,
then this interpretation applies and Capwire's submarine cable
may be held subject to real property tax.
Having determined that Capwire is liable, and public respondents
have the right to impose a real property tax on its submarine
cable, the issue that is unresolved is how much of such cable is
taxable based on the extent of Capwire's ownership or co-
ownership of it and the length that is laid within respondents'
taxing jurisdiction. The matter, however, requires a factual
determination that is best performed by the Local and Central
Boards of Assessment Appeals, a remedy which the petitioner did
not avail of.
At any rate, given the importance of the issue, it is proper to lay
down the other legal bases for the local taxing authorities' power
to tax portions of the submarine cables of petitioner. It is not in
dispute that the submarine cable system's Landing Station in
Nasugbu, Batangas is owned by PLDT and not by Capwire.
Obviously, Capwire is not liable for the real property tax on this
Landing Station. Nonetheless, Capwire admits that it co-owns the
submarine cable system that is subject of the tax assessed and
being collected by public respondents. As the Court takes judicial
notice that Nasugbu is a coastal town and the surrounding sea
falls within what the United Nations Convention on the Law of the
Sea (UNCLOS) would define as the country's territorial sea (to the
extent of 12 nautical miles outward from the nearest baseline,
under Part II, Sections 1 and 2) over which the country has
sovereignty, including the seabed and subsoil, it follows that
indeed a portion of the submarine cable system lies within
Philippine territory and thus falls within the jurisdiction of the said
local taxing authorities.42 It easily belies Capwire's contention
that the cable system is entirely in international waters. And even
if such portion does not lie in the 12-nautical-mile vicinity of the
territorial sea but further inward, in Prof. Magallona v. Hon.
Ermita, et al.43 this Court held that "whether referred to as
Philippine 'internal waters' under Article I of the Constitution44 or
as 'archipelagic waters' under UNCLOS Part III, Article 49(1, 2,
4),45 the Philippines exercises sovereignty over the body of water
lying landward of (its) baselines, including the air space over it and
the submarine areas underneath." Further, under Part VI, Article
7946 of the UNCLOS, the Philippines clearly has jurisdiction with
respect to cables laid in its territory that are utilized in support of
other installations and structures under its jurisdiction.
And as far as local government units are concerned, the areas
described above are to be considered subsumed under the term
"municipal waters" which, under the Local Government Code,
includes "not only streams, lakes, and tidal waters within the
municipality, not being the subject of private ownership and not
comprised within the national parks, public forest, timber lands,
forest reserves or fishery reserves, but also marine waters
included between two lines drawn perpendicularly to the general
coastline from points where the boundary lines of the municipality
or city touch the sea at low tide and a third line parallel with the
general coastline and fifteen (15) kilometers from it."47 Although
the term "municipal waters" appears in the Code in the context of
the grant of quarrying and fisheries privileges for a fee by local
governments,48 its inclusion in the Code's Book II which covers
local taxation means that it may also apply as guide in determining
the territorial extent of the local authorities' power to levy real
property taxation.
Thus, the jurisdiction or authority over such part of the subject
submarine cable system lying within Philippine jurisdiction
includes the authority to tax the same, for taxation is one of the
three basic and necessary attributes of sovereignty,49 and such
authority has been delegated by the national legislature to the
local governments with respect to real property taxation.50
As earlier stated, a way for Capwire to claim that its cable system
is not covered by such authority is by showing a domestic
enactment or even contract, or an international agreement or
treaty exempting the same from real property taxation. It failed to
do so, however, despite the fact that the burden of proving
exemption from local taxation is upon whom the subject real
property is declared.51 Under the Local Government Code, every
person by or for whom real property is declared, who shall claim
tax exemption for such property from real property taxation "shall
file with the provincial, city or municipal assessor within thirty (30)
days from the date of the declaration of real property sufficient
documentary evidence in support of such claim."52 Capwire
omitted to do so. And even under Capwire's legislative franchise,
RA 4387, which amended RA 2037, where it may be derived that
there was a grant of real property tax exemption for properties
that are part of its franchise, or directly meet the needs of its
business,53 such had been expressly withdrawn by the Local
Government Code, which took effect on January 1, 1992, Sections
193 and 234 of which provide:54
Section 193. Withdrawal of Tax Exemption Privileges. - Unless
otherwise provided in this Code, tax exemptions or incentives
granted to, or presently enjoyed by all persons, whether natural or
juridical, including government-owned or controlled corporations,
except local water districts, cooperatives duly registered under
R.A. No. 6938, nonstock and nonprofit hospitals and educational
institutions, are hereby
Section 234. Exemptions from Real Property Tax. - The following
arc exempted from payment of the real property tax:
(a) Real property owned by the Republic of the Philippines or any
of its political subdivisions except when the beneficial use thereof
has been granted, for consideration of otherwise, to a taxable
person;
(b) Charitable institutions, churches, parsonages or convents
appurtenant thereto, mosques, nonprofit or religious cemeteries
and all lands, buildings, and improvements actually, directly, and
exclusively used for religious, charitable or educational purposes;
(c) All machineries and equipment that are actually, directly and
exclusively used by local water districts and government-owned or
controlled corporations engaged in the supply and distribution of
water and/or generation and transmission of electric power;
(d) All real property owned by duly registered cooperatives as
provided for under R.A. No. 6938; and
(c) Machinery and equipment used for pollution control and
environmental protection.
Except as provided herein, any exemption from payment of real
property tax previously granted to, or presently enjoyed by, all
persons, whether natural or juridical, including all government-
owned or controlled corporations arc hereby withdrawn upon the
effectivity of this Code.55
Such express withdrawal had been previously held effective upon
exemptions bestowed by legislative franchises granted prior to the
effectivity of the Local Government Code.56 Capwire fails to allege
or provide any other privilege or exemption that were granted to
it by the legislature after the enactment of the Local Government
Code. Therefore, the presumption stays that it enjoys no such
privilege or exemption. Tax exemptions are strictly construed
against the taxpayer because taxes are considered the lifeblood of
the nation.57
WHEREFORE, the petition is DENIED. The Court of Appeals'
Decision dated May 30, 2007 and Resolution dated October 8,
2007 are AFFIRMED.
SO ORDERED.
Stone v. Mississippi
May 10, 1880
Facts of the case
In 1867, the provisional state legislature of Mississippi chartered
the Mississippi Agricultural, Educational, and Manufacturing Aid
Society. The Society was chartered to run a lottery for the next 25
years; however, in 1868, a new constitution ratified by the people
outlawed lotteries in the state. John Stone and others associated
with the Society were arrested in 1874 for running a lottery. The
Society claimed they were protected by the provisions of their
charter while the state declared that the subsequent enforcement
legislation had repealed the grant.
Question
Did Mississippi violate the Contract Clause by repealing the
Society's grant?
Conclusion
A unanimous Court found that the Mississippi classification of
lotteries as outlawed acts was valid. The State legislature do not
have the power to bind the decisions of the people and future
legislatures. The Court stated that no legislation had the authority
to bargain away the public health and morals. The Court viewed
the lottery as a vice that threatened the public health and morals.
The contracts protected in the Constitution are property rights,
not governmental rights. Therefore, one can only obtain
temporary suspension of the governmental rights (in this case, the
right to outlaw actions) in a charter which can be revoked by the
will of the people.
Stone v. Mississippi, 101 U.S. 814 (1879)
Syllabus
1. In 1867, the Legislature of Mississippi granted a charter to a
lottery company for twenty-five years in consideration of a
stipulated sum in cash, an annual payment of a further sum, and a
percentage of receipts from the sale of tickets. A provision of the
constitution adopted in 1868 declares that
"The legislature shall never authorize any lottery, nor shall the sale
of lottery tickets be allowed, nor shall any lottery heretofore
authorized be permitted to be drawn, or tickets therein to be
sold."
Held:
1. That this provision is not in conflict with sec. 10, art. 1, of the
Constitution of the United States, which prohibits a State from
"passing a law impairing the obligation of contracts."
2. That such a charter is in legal effect nothing more than a license
to enjoy the privilege conferred for the time, and on the terms
specified, subject to future legislative or constitutional control or
withdrawal.
2. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518,
commented upon and explained.
3. The legislature cannot, by chartering a lottery company, defeat
the will of the people of the state authoritatively expressed, in
relation to the continuance of such business in their midst.
The Legislature of Mississippi passed an Act, approved Feb. 16,
1867, entitled "An Act incorporating the Mississippi Agricultural
and Manufacturing Aid Society." Its provisions, so far as they bear
upon the questions involved, are as follows:
"The corporation shall have power to receive subscriptions, and
sell and dispose of certificates of subscriptions which shall entitle
the holders thereof to any articles that may be awarded to them,
and the distribution of the awards shall be fairly made in public,
after advertising, by the casting of lots, or by lot, chance, or
otherwise, in such manner as shall be directed by the bylaws of
said corporation; . . . and the said corporation shall have power to
offer premiums or prizes in money, for the best essays on
agriculture, manufactures, and education, written by a citizen of
Mississippi, or to the most deserving works of art executed by
citizens of Mississippi, or the most useful inventions in mechanics,
science, or art, mane by citizens of Mississippi."
Sec. 7 provides that the articles to be distributed or awarded may
consist of lands, books, paintings, statues, antiques, scientific
instruments or apparatus, or any other property or thing that may
be ornamental, valuable, or useful.
Sect. 8 requires the corporation to pay, before the
commencement of business, to the treasurer of the state for the
use of the university the sum of $5,000, and to give bond and
security for the annual payment of $1,000, together with one-half
percent on the amount of receipts derived from the sale of
certificates.
Sect. 9 declares that any neglect or refusal to comply with the
provisions of the act shall work a forfeiture of all the privileges
granted, and subject any officer or agent failing to carry out its
provisions or committing any fraud in selling tickets at drawing of
lottery to indictment, the penalty being a "fine not less than
$1,000, and imprisonment not less than six months."
Sect. 11 enacts that as soon as the sum of $100,000 is subscribed
and the sum of $25,000 paid into the capital stock, the company
shall go into operation under their charter and not before, and the
act of incorporation shall continue and be in force for the space of
twenty-five years from its passage, and that all laws and parts of
laws in conflict with its provisions be repealed, and that the act
shall take effect from and after its passage.
The constitution of the state, adopted in convention May 15,
1868, and ratified by the people Dec. 1, 1869, declares that
"The legislature shall never authorize any lottery, nor shall the sale
of lottery tickets be allowed, nor shall any lottery heretofore
authorized be permitted to be drawn, or tickets therein to be
sold."
The legislature passed an act, approved July 16, 1870, entitled
"An Act enforcing the provisions of the Constitution of the State of
Mississippi, prohibiting all kinds of lotteries within said State, and
making it unlawful to conduct one in this state."
The Attorney-General of Mississippi filed, March 17, 1874, in the
Circuit Court of Warren County in that state, an information in the
nature of a quo warranto, against John B. Stone and others,
alleging that, without authority or warrant of law, they were then,
and for the preceding twelve months had been, carrying on a
lottery or gift enterprise within said county and state under the
name of "The Mississippi Agricultural, Educational, and
Manufacturing Aid Society." The information alleges that said
society obtained from the legislature a charter, but sets up the
aforesaid constitutional provision and the act of July 16, 1870, and
avers that the charter was thereby virtually and in effect repealed.
By their answer the respondents admit that they were carrying on
a lottery enterprise under the name mentioned. They aver that in
so doing they were exercising the rights, privileges, and franchises
conferred by their charter, and that they have in all things
complied with its provisions. They further aver that their rights
and franchises were not impaired by the constitutional provision
and legislative enactment aforesaid.
The state replied to the answer by admitting that the respondents
had in every particular conformed to the provisions of their
charter.
The court, holding that the act of incorporation had been
abrogated and annulled by the constitution of 1868 and the
legislation of July 16, 1870, adjudged that the respondents be
ousted of and from all the liberties and privileges, franchises and
emoluments, exercised by them under and by virtue of the said
act.
The judgment was, on error, affirmed by the supreme court, and
Stone and others sued out this writ.
PANDACAN OIL DEPOT MUST GO: SOCIAL JUSTICE SOCIETY VS.
ATIENZA CASE DIGEST
By: Atty.Fred | February 15, 2008 in Elections and Constitutional
Law, Obiter/News
(Just the other day, the Supreme Court affirmed the authority of
Manila City to issue and enforce an Ordinance reclassifying
certain areas within the city. The reclassification adversely affected
the oil companies, which are now forced to relocate their oil
terminals in Pandacan. This is a digest of Social Justice Society vs.
Atienza, G.R. No. 156052, 13 February 2008. Other procedural
issues are not discussed.)
Facts:
The Social Justice Society sought to compel respondent Hon. Jose
L. Atienza, Jr., then mayor of the City of Manila, to enforce
Ordinance No. 8027 that was enacted by the
SangguniangPanlungsod of Manila in 2001. 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 PandacanTerminals of the oil
companies (the brief history of the Pandacan Oil Terminals is
here).
In 2002, the City of Manila and the Department of Energy (DOE)
entered into a memorandum of understanding (MOU) with the oil
companies. They agreed that the scaling down of the
Pandacan Terminals [was] the most viable and practicable
option. The SangguniangPanlungsod ratified the MOU in
Resolution No. 97. In the same resolution, the Sanggunian
declared that the MOU was effective only for a period of six
months starting 25 July 2002, which period was extended up to 30
April 2003.
This is the factual backdrop of the Supreme Courts 7 March 2007
Decision. The SC 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,
including Ordinance No. 8027. After the SC promulgated its
Decision, Chevron Philippines Inc. (Chevron), Petron Corporation
(Petron) and Pilipinas Shell Petroleum Corporation (Shell) (the
oilcompanies) and the Republic of the Philippines,
represented by the DOE, sought to intervene and ask for a
reconsideration of the decision.
Intervention of the oil companies and the DOE 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. The allowance or
disallowance of a motion to intervene is addressed to the sound
discretion of the court. While the motions to intervene
respectively filed by the oil companies and the DOE were filed out
of time, these motions were granted because they presented
novel issues and arguments. DOEs intervention was also
allowed considering the transcendental importance of this case.
Ordinance No. 8119 did not impliedly repeal Ordinance No. 8027
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. Implied repeals are not favored and will not be so
declared unless the intent of the legislators is manifest.
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. 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. The oil companies argue that the situation here
falls under the first category.
For the first kind of implied repeal, there must be an irreconcilable
conflict between the two ordinances. However, there was no
legislative purpose to repeal Ordinance No. 8027. 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). 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.
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. The special law must be taken as intended to
constitute an exception to, or a qualification of, the general act or
provision. Ordinance No. 8027 is a special law 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 as it covers the entire city of Manila.
Mandamus lies to compel respondent Mayor to enforce Ordinance
No. 8027
The oil companies insist that mandamus does not lie against
respondent in consideration of the separation of powers of the
executive and judiciary. However, while it is true that Courts will
not interfere by mandamus proceedings with the legislative or
executive departments of the government in the legitimate
exercise of its powers, there is an exception to enforce mere
ministerial acts required by law to be performed by some officer
thereof. A writ of mandamus is the power to compel the
performance of an act which the law specifically enjoins as a duty
resulting from office, trust or station.
The oil companies 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. This suggested
process, however, 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. A party need not go first to the DILG in order to compel
the enforcement of an ordinance. Besides, the resort to an original
action for mandamus before the SC is undeniably allowed by the
Constitution.
Ordinance No. 8027 is constitutional and valid
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. There is no showing that
the Ordinance is unconstitutional.
The City of Manila has the power to enact Ordinance No. 8027
Ordinance No. 8027 was passed by the SangguniangPanlungsod 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. This power
flows from the recognition that saluspopuliest suprema lex (the
welfare of the people is the supreme law).
While police power rests primarily with the national legislature,
such power may be delegated. Section 16 of the LGC, known as
the general welfare clause, encapsulates the delegated police
power to local governments. LGUs like the City of Manila exercise
police power through their respective legislative bodies, in this
case, the SangguniangPanlungsod or the city council. Specifically,
the Sanggunian can enact ordinances for the general welfare of
the city.
This police power was also provided for in RA 409 or the Revised
Charter of the City of Manila. Specifically, the Sanggunian has the
power to reclassify land within the jurisdiction of the city.
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.
Ordinance No. 8027 is a valid police power measure because there
is a concurrence of lawful subject and lawful method. It was
enacted for the purpose of promoting sound urban planning,
ensuring health, public safety and general welfare 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 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. 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. 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.
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. Otherwise stated, the government
may enact legislation that may interfere with personal liberty,
property, lawful businesses and occupations to promote the
general welfare. 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.
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. 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. Consequently, the enactment of Ordinance
No. 8027 is within the power of the SangguniangPanlungsod of
the City of Manila and any resulting burden on those affected
cannot be said to be unjust.
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.
However, 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.
The oil companies also argue that the ordinance is unfair and
oppressive because they have invested billions of pesos in the
depot, and the forced closure will result in huge losses in income
and tremendous costs in constructing new facilities. This argument
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. regarding the Pandacan Terminals are not categorical, the doubt
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. 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. In the regulation of the use of the property, nobody else
acquires the use or interest therein, hence there is no
compensable taking.
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.
An ordinance based on reasonable classification does not violate
the constitutional guaranty of the equal protection of the law. 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. 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.
Here, there is a reasonable classification. 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) and RA 8479 (Downstream Oil Industry Deregulation Law of
1998).
It is true that ordinances should not contravene existing statutes
enacted by Congress. However, a brief survey of decisions where
the police power measure of the LGU clashed with national laws
shows that the common dominator 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. Considering that the powers of the DOE
must be resolved in favor of the City of Manila.
The principle of local autonomy is enshrined in and zealously
protected under the Constitution. 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. There is no showing 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.
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.
Consequently, the Chief Executive or his or her alter egos, cannot
exercise the power of control over them. 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.

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
and Section 1 of E.O. 72. 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.
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. 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.
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.
Just the same, the Court noted that it 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,
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.
Social Justice Society v. Atienza, Jr
., February 13,2008, Corona, J.
The Supreme Court denied the motions for reconsideration filed
by the Department of Energy and oil giants Chevron, Petron, and
Shell; and reiterated its March 7, 2007 decisionordering the
Manila City mayor to enforce Ordinance No. 8027 directing the
removal of theterminals from Pandacan by the said oil companies.
The said Ordinance reclassified portionsof the Manila districts of
Pandacan and Sta. Ana from industrial to commercial and
directedcertain business owners and operators, including the
three oil giants to cease and desistfrom operating their businesses
there.
Ordinance No. 8027, approved by Manila City Council on
November 28, 2001 and effective December 28, 2001, reclassifies
portions of Pandacan and Sta. Ana from industrial to commercial
and directs the owners and operators of businesses to cease and
desist from operating their businesses within 6 months from the
ordinances effectivity. Among the businesses in the area are the
so-called Pandacan Terminals of Chevron, Petron, and Shell.
Chevron, Petron and Shell, questioned the validity of the said
ordinance. They argued that they are fighting for their right to
property alleging that they stand to lose billions of pesos if forced
[to] relocate. Are the contentions of the oil companies tenable?
SUGGESTED ANSWER:
No. The Court described Ordinance No. 8027 as a measure
enacted pursuant to the delegated police power of local
government units to promote the order, safety, and health,
morals, and general welfare of the society. It explained that
based on the hierarchy of constitutionally protected rights, the
right to life enjoys precedence over the right to property. The
reason is obvious: life is irreplaceable, property is not.
When the state or [local government unit] LGUs exercise of police
power clashes with a few individuals right to property, the former
should prevail. (GR No. 156052, Social Justice Society, et al. v.
Atienza, Jr., February 13, 2008)
Ordinance No. 8027 visit fellester.blogspot.com was enacted right
after the Philippines, along with the rest of the world, witnessed
the horror of the September 11, 2001 attack on the Twin Towers
of the World Trade Center in New York City.
The objective of the ordinance is to protect the residents of
Manila from the catastrophic devastation that will surely occur in
case of a terrorist attack on the Pandacan Terminals. No reason
exists why such a protective measure should be delayed.
NOTES:
In 2007, the SC ruled that the Local Government Code imposes
upon Mayor Atienza, to enforce all laws and ordinances relative
to the governance of the city. One of these is Ordinance No.
8027. As the chief executive of the city, he has the duty to enforce
Ordinance No. 8027 as long as it has not been repealed by the
Sanggunian or annulled by the courts. He has no other choice. (GR
No. 156052, Social Justice Society, et al. v. Atienza, Jr., March 7,
2007)
In 2008, The Supreme Court denied the motions for
reconsideration filed by Chevron, Petron, and Shell, and instead
reiterated its March 7, 2007 decision. (GR No. 156052, Social
Justice Society, et al. v. Atienza, Jr., February 13, 2008)
In 2009, the SC recently denied with finality the second motion for
reconsideration of the three big oil players. The Court stressed
that the second motion for reconsideration is a prohibited
pleading pursuant to sec. 2, Rule 52 of the Rules of Court. It said
that it already passed upon the basic issues in its February 13,
2008 resolution and noted that the arguments of the oil firms
were a mere rehash of their arguments raised in the first motion
for reconsideration. (Min. Res., GR No. 156052, Social Justice
Society, et al. v. Atienza, Jr., April 28, 2009)
Ermita Malate v City of Manila 20 SCRA 849 (1967)
J. Fernando
Facts:
Ermita-Malate Hotel and Motel Operators Association, and one of
its members Hotel del Mar Inc. petitioned for the prohibition of
Ordinance 4670 on June 14, 1963 to be applicable in the city of
Manila.
They claimed that the ordinance was beyond the powers of the
Manila City Board to regulate due to the fact that hotels were not
part of its regulatory powers. They also asserted that Section 1 of
the challenged ordinance was unconstitutional and void for being
unreasonable and violative of due process insofar because it
would impose P6,000.00 license fee per annum for first class
motels and P4,500.00 for second class motels; there was also the
requirement that the guests would fill up a form specifying their
personal information.
There was also a provision that the premises and facilities of such
hotels, motels and lodging houses would be open for inspection
from city authorites. They claimed this to be violative of due
process for being vague.
The law also classified motels into two classes and required the
maintenance of certain minimum facilities in first class motels
such as a telephone in each room, a dining room or, restaurant
and laundry. The petitioners also invoked the lack of due process
on this for being arbitrary.
It was also unlawful for the owner to lease any room or portion
thereof more than twice every 24 hours.
There was also a prohibition for persons below 18 in the hotel.
The challenged ordinance also caused the automatic cancellation
of the license of the hotels that violated the ordinance.
The lower court declared the ordinance unconstitutional.
Hence, this appeal by the city of Manila.
Issue:
Whether Ordinance No. 4760 of the City of Manila is violative of
the due process clause?
Held: No. Judgment reversed.
Ratio:
"The presumption is towards the validity of a law. However, 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.
O'Gorman & Young v. Hartford Fire Insurance Co- Case was in the
scope of police power. As underlying questions of fact may
condition the constitutionality of legislation of this character, the
resumption of constitutionality must prevail in the absence of
some factual foundation of record for overthrowing the statute."
No such factual foundation being laid in the present case, the
lower court deciding the matter on the pleadings and the
stipulation of facts, the presumption of validity must prevail and
the judgment against the ordinance set aside.
There is no question but that the challenged ordinance was
precisely enacted to minimize certain practices hurtful to public
morals, particularly fornication and prostitution. Moreover, the
increase in the licensed fees was intended to discourage
"establishments of the kind from operating for purpose other than
legal" and at the same time, to increase "the income of the city
government."
Police power is the power to prescribe regulations to promote the
health, morals, peace, good order, safety and general welfare of
the people. In view of the requirements of due process, equal
protection and other applicable constitutional guaranties,
however, the power must not be unreasonable or violative of due
process.
There is no controlling and precise definition of due process. It has
a standard to which the governmental action should conform in
order that deprivation of life, liberty or property, in each
appropriate case, be valid. What then is the standard of due
process which must exist both as a procedural and a substantive
requisite to free the challenged ordinance from legal infirmity? It
is responsiveness to the supremacy of reason, obedience to the
dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided.
Due process is not a narrow or "technical conception with fixed
content unrelated to time, place and circumstances," decisions
based on such a clause requiring a "close and perceptive inquiry
into fundamental principles of our society." Questions of due
process are not to be treated narrowly or pedantically in slavery to
form or phrase.
Nothing in the petition is sufficient to prove the ordinances nullity
for an alleged failure to meet the due process requirement.
Cu Unjieng case: Licenses for non-useful occupations are also
incidental to the police power and the right to exact a fee may be
implied from the power to license and regulate, but in fixing
amount of the license fees the municipal corporations are allowed
a much wider discretion in this class of cases than in the former,
and aside from applying the well-known legal principle that
municipal ordinances must not be unreasonable, oppressive, or
tyrannical, courts have, as a general rule, declined to interfere
with such discretion. Eg. Sale of liquors.
Lutz v. Araneta- Taxation may be made to supplement the states
police power.
In one case- much discretion is given to municipal corporations in
determining the amount," here the license fee of the operator of a
massage clinic, even if it were viewed purely as a police power
measure.
On the impairment of freedom to contract by limiting duration of
use to twice every 24 hours- It was not violative of due process.
'Liberty' as understood in democracies, is not license; it is 'liberty
regulated by law.' Implied in the term is restraint by law for the
good of the individual and for the greater good of the peace and
order of society and the general well-being.
Laurel- The citizen should achieve the required balance of liberty
and authority in his mind through education and personal
discipline, so that there may be established the resultant
equilibrium, which means peace and order and happiness for all.
The freedom to contract no longer "retains its virtuality as a living
principle, unlike in the sole case of People v Pomar. The policy of
laissez faire has to some extent given way to the assumption by
the government of the right of intervention even in contractual
relations affected with public interest.
What may be stressed sufficiently is that if the liberty involved
were freedom of the mind or the person, the standard for the
validity of governmental acts is much more rigorous and exacting,
but where the liberty curtailed affects at the most rights of
property, the permissible scope of regulatory measure is wider.
On the law being vague on the issue of personal information, the
maintenance of establishments, and the full rate of payment-
Holmes- We agree to all the generalities about not supplying
criminal laws with what they omit but there is no canon against
using common sense in construing laws as saying what they
obviously mean."
ERMITA-MALATE HOTEL & MOTEL OPERATORS v. CITY MAYOR OF
MANILA
Facts:
The petitioners filed a petition for prohibition against Ordinance
No. 4760 for being violative of the due process clause, contending
that said ordinance is not only arbitrary, unreasonable or
oppressive but also vague, indefinite and uncertain, and likewise
allege the invasion of the right to privacy and the guaranty against
self-incrimination.
Ordinance No. 4760 proposes to check the clandestine harboring
of transients and guests of these establishments by requiring
these transients and guests to fill up a registration form, prepared
for the purpose, in a lobby open to public view at all times, and by
introducing several other amendatory provisions calculated to
shatter the privacy that characterizes the registration of transients
and guests." Moreover, the increase in the licensed fees was
intended to discourage "establishments of the kind from operating
for purpose other than legal" and at the same time, to increase
"the income of the city government."
The lower court ruled in favor of the petitioners.
Hence, the appeal.
Issue: Whether or not Ordinance No. 4760 is unconstitutional
Held: No.
Rationale:
The mantle of protection associated with the due
process guaranty does not cover petitioners. This particular
manifestation of a police power measure being specifically aimed
to safeguard public morals is immune from such imputation of
nullity resting purely on conjecture and unsupported by anything
of substance. To hold otherwise would be to unduly restrict and
narrow the scope of police power which has been properly
characterized as the most essential, insistent and the least
limitable of powers,4 extending as it does "to all the great public
needs."
It would be, to paraphrase another leading decision, to destroy
the very purpose of the state if it could be deprived or allowed
itself to be deprived of its competence to promote public health,
public morals, public safety and the general welfare. Negatively
put, police power is that inherent and plenary power in the State
which enables it to prohibit all that is hurt full to the comfort,
safety, and welfare of society.
On the legislative organs of the government, whether national or
local, primarily rest the exercise of the police power, which, it
cannot be too often emphasized, is the power to prescribe
regulations to promote the health, morals, peace, good order,
safety and general welfare of the people.
In view of the requirements of due process, equal protection and
other applicable constitutional guaranties however, the exercise of
such police power insofar as it may affect the life, liberty or
property of any person is subject to judicial inquiry. Where such
exercise of police power may be considered as either capricious,
whimsical, unjust or unreasonable, a denial of due process or a
violation of any other applicable constitutional guaranty may call
for correction by the courts.
The Court reversed the judgment of the lower court and lifted the
injuction on the Ordinance in question.
*** Liberty is a blessing without which life is a misery, but liberty
should not be made to prevail over authority because then society
will fall into anarchy. Neither should authority be made to prevail
over liberty because then the individual will fall into slavery.
CITY OF MANILA VS. LAGUIO
MARCH 30, 2013 ~ VBDIAZ
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of
Manila, HON. JOSELITO L. ATIENZA, in his capacity as Vice-Mayor
of the City of Manila and Presiding Officer of the City Council of
Manila, et.al vs. HON. PERFECTO A.S. LAGUIO, JR., as Presiding
Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT
CORPORATION
G.R. No. 118127, April 12, 2005
Police Power
On 30 Mar 1993, Mayor Lim signed into law Ord 7783 entitled AN
ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION
OF BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT,
ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-
MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF,
AND FOR OTHER PURPOSES. It basically prohibited establishments
such as bars, karaoke bars, motels and hotels from operating in
the Malate District which was notoriously viewed as a red light
district harboring thrill seekers. Malate Tourist Development
Corporation avers that the ordinance is invalid as it includes hotels
and motels in the enumeration of places offering amusement or
entertainment. MTDC reiterates that they do not market such nor
do they use women as tools for entertainment. MTDC also avers
that under the LGC, LGUs can only regulate motels but cannot
prohibit their operation. The City reiterates that the Ordinance is a
valid exercise of Police Power as provided as well in the LGC. The
City likewise emphasized that the purpose of the law is to
promote morality in the City.
ISSUE: Whether or not Ordinance 7783 is valid.
HELD: The SC ruled that the said Ordinance is null and void. The SC
noted that for an ordinance to be valid, it must not only be within
the corporate powers of the local government unit to enact and
must 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.
The police power of the City Council, however broad and far-
reaching, is subordinate to the constitutional limitations thereon;
and is subject to the limitation that its exercise must be
reasonable and for the public good. In the case at bar, the
enactment of the Ordinance was an invalid exercise of delegated
power as it is unconstitutional and repugnant to general laws.
FACTS: Private respondent Malate Tourist Development
Corporation (MTDC) is a corporation engaged in the business of
operating hotels, motels, hostels and lodging houses. It built and
opened Victoria Court in Malate which was licensed as a motel
although duly accredited with the DOT as a hotel. On 28 June
1993, MTDC filed a Petition for Declaratory Relief with Prayer for a
Writ of Preliminary Injunction and/or Temporary Restraining
Order7 with the lower court impleading as defendants, herein
petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito
L. Atienza, and the members of the City Council of Manila (City
Council). MTDC prayed that the Ordinance, insofar as it includes
motels and inns as among its prohibited establishments, be
declared invalid and unconstitutional.
Enacted by the City Council and approved by petitioner City
Mayor, the said Ordinance is entitled
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR
OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF
AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE
ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION
THEREOF, AND FOR OTHER PURPOSES.
Judge Laguio rendered the assailed Decision (in favour of
respondent).
On 11 January 1995, petitioners filed the present Petition, alleging
that the following errors were committed by the lower court in its
ruling:
(1) It erred in concluding that the subject ordinance is ultra vires,
or otherwise, unfair, unreasonable and oppressive exercise of
police power;
(2) It erred in holding that the questioned Ordinance contravenes
P.D. 499 which allows operators of all kinds of commercial
establishments, except those specified therein; and
(3) It erred in declaring the Ordinance void and unconstitutional.
ISSUE: WON the ordinance is unconstitutional.

HELD: The Court is of the opinion, and so holds, that the lower
court did not err in declaring the Ordinance, as it did, ultra vires
and therefore null and void.
The tests of a valid ordinance are well established. A long line of
decisions has held that for an ordinance to be valid, it must not
only be within the corporate powers of the local government unit
to enact and must 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.
The Ordinance was passed by the City Council in the exercise of its
police power, an enactment of the City Council acting as agent of
Congress. This delegated police power is found in Section 16 of
the LGC, known as the general welfare clause.
The inquiry in this Petition is concerned with the validity of the
exercise of such delegated power.
A. The Ordinance contravenes the Constitution
The enactment of the Ordinance was an invalid exercise of
delegated power as it is unconstitutional and repugnant to general
laws.
The police power granted to LGUs must always be exercised with
utmost observance of the rights of the people to due process and
equal protection of the law. Due process requires the intrinsic
validity of the law in interfering with the rights of the person to his
life, liberty and property.
Requisites for the valid exercise of Police Power are not met
To successfully invoke the exercise of police power as the rationale
for the enactment of the Ordinance, and to free it from the
imputation of constitutional infirmity, not only must it appear that
the interests of the public generally, as distinguished from those of
a particular class, require an interference with private rights, but
the means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals.60 It must be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can
work. A reasonable relation must exist between the purposes of
the police measure and the means employed for its
accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property
will not be permitted to be arbitrarily invaded.
Lacking a concurrence of these two requisites, the police measure
shall be struck down as an arbitrary intrusion into private rights a
violation of the due process clause.
The object of the Ordinance was, accordingly, the promotion and
protection of the social and moral values of the community.
Granting for the sake of argument that the objectives of the
Ordinance are within the scope of the City Councils police powers,
the means employed for the accomplishment thereof were
unreasonable and unduly oppressive.
The worthy aim of fostering public morals and the eradication of
the communitys social ills can be achieved through means less
restrictive of private rights; it can be attained by reasonable
restrictions rather than by an absolute prohibition. The closing
down and transfer of businesses or their conversion into
businesses allowed under the Ordinance have no reasonable
relation to the accomplishment of its purposes. Otherwise stated,
the prohibition of the enumerated establishments will not per se
protect and promote the social and moral welfare of the
community; it will not in itself eradicate the alluded social ills of
prostitution, adultery, fornication nor will it arrest the spread of
sexual disease in Manila.
The enumerated establishments are lawful pursuits which are not
per se offensive to the moral welfare of the community. While a
motel may be used as a venue for immoral sexual activity, it
cannot for that reason alone be punished. It cannot be classified
as a house of ill-repute or as a nuisance per se on a mere
likelihood or a naked assumption.
If the City of Manila so desires to put an end to prostitution,
fornication and other social ills, it can instead impose reasonable
regulations such as daily inspections of the establishments for any
violation of the conditions of their licenses or permits; it may
exercise its authority to suspend or revoke their licenses for these
violations; and it may even impose increased license fees. In other
words, there are other means to reasonably accomplish the
desired end.
It is readily apparent that the means employed by the Ordinance
for the achievement of its purposes, the governmental
interference itself, infringes on the constitutional guarantees of a
persons fundamental right to liberty and property.
Modality employed is unlawful taking
It is an ordinance which permanently restricts the use of property
that it can not be used for any reasonable purpose goes beyond
regulation and must be recognized as a taking of the property
without just compensation.78 It is intrusive and violative of the
private property rights of individuals.
There are two different types of taking that can be identified. A
possessory taking occurs when the government confiscates or
physically occupies property. A regulatory taking occurs when
the governments regulation leaves no reasonable economically
viable use of the property.
What is crucial in judicial consideration of regulatory takings is
that government regulation is a taking if it leaves no reasonable
economically viable use of property in a manner that interferes
with reasonable expectations for use. When the owner of real
property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to leave
his property economically idle, he has suffered a taking.
The Ordinance gives the owners and operators of the prohibited
establishments three (3) months from its approval within which to
wind up business operations or to transfer to any place outside of
the Ermita-Malate area or convert said businesses to other kinds
of business allowable within the area. The directive to wind up
business operations amounts to a closure of the establishment, a
permanent deprivation of property, and is practically confiscatory.
Unless the owner converts his establishment to accommodate an
allowed business, the structure which housed the previous
business will be left empty and gathering dust. It is apparent that
the Ordinance leaves no reasonable economically viable use of
property in a manner that interferes with reasonable expectations
for use.
The second and third options to transfer to any place outside of
the Ermita-Malate area or to convert into allowed businessesare
confiscatory as well. The penalty of permanent closure in cases of
subsequent violations found in Section 4 of the Ordinance is also
equivalent to a taking of private property.
Petitioners cannot take refuge in classifying the measure as a
zoning ordinance. A zoning ordinance, although a valid exercise of
police power, which limits a wholesome property to a use which
can not reasonably be made of it constitutes the taking of such
property without just compensation. Private property which is not
noxious nor intended for noxious purposes may not, by zoning, be
destroyed without compensation. Such principle finds no support
in the principles of justice as we know them. The police powers of
local government units which have always received broad and
liberal interpretation cannot be stretched to cover this particular
taking.
Further, The Ordinance confers upon the mayor arbitrary and
unrestricted power to close down establishments. Ordinances
such as this, which make possible abuses in its execution,
depending upon no conditions or qualifications whatsoever other
than the unregulated arbitrary will of the city authorities as the
touchstone by which its validity is to be tested, are unreasonable
and invalid. The Ordinance should have established a rule by
which its impartial enforcement could be secured. Similarly, the
Ordinance does not specify the standards to ascertain which
establishments tend to disturb the community, annoy the
inhabitants, and adversely affect the social and moral welfare of
the community.
The cited case supports the nullification of the Ordinance for lack
of comprehensible standards to guide the law enforcers in
carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated
establishments without infringing the due process clause. These
lawful establishments may be regulated, but not prevented from
carrying on their business.
B. The Ordinance violates Equal Protection Clause
In the Courts view, there are no substantial distinctions between
motels, inns, pension houses, hotels, lodging houses or other
similar establishments. By definition, all are commercial
establishments providing lodging and usually meals and other
services for the public. No reason exists for prohibiting motels and
inns but not pension houses, hotels, lodging houses or other
similar establishments. The classification in the instant case is
invalid as similar subjects are not similarly treated, both as to
rights conferred and obligations imposed. It is arbitrary as it does
not rest on substantial distinctions bearing a just and fair relation
to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the
business and operation of motels in the Ermita-Malate area but
not outside of this area. A noxious establishment does not
become any less noxious if located outside the area.
The standard where women are used as tools for entertainment
is also discriminatory as prostitutionone of the hinted ills the
Ordinance aims to banishis not a profession exclusive to women.
Both men and women have an equal propensity to engage in
prostitution. Thus, the discrimination is invalid.
C. The Ordinance is repugnant to general laws; it is ultra vires
The Ordinance is in contravention of the Code (Sec 458) as the
latter merely empowers local government units to regulate, and
not prohibit, the establishments enumerated in Section 1 thereof.
With respect to cafes, restaurants, beerhouses, hotels, motels,
inns, pension houses, lodging houses, and other similar
establishments, the only power of the City Council to legislate
relative thereto is to regulate them to promote the general
welfare. The Code still withholds from cities the power to suppress
and prohibit altogether the establishment, operation and
maintenance of such establishments.
It is well to point out that petitioners also cannot seek cover under
the general welfare clause authorizing the abatement of nuisances
without judicial proceedings. That tenet applies to a nuisance per
se, or one which affects the immediate safety of persons and
property and may be summarily abated under the undefined law
of necessity. It can not be said that motels are injurious to the
rights of property, health or comfort of the community. It is a
legitimate business. If it be a nuisance per accidens it may be so
proven in a hearing conducted for that purpose. A motel is not per
se a nuisance warranting its summary abatement without judicial
intervention.
Not only does the Ordinance contravene the Code, it likewise runs
counter to the provisions of P.D. 499. As correctly argued by
MTDC, the statute had already converted the residential Ermita-
Malate area into a commercial area. The decree allowed the
establishment and operation of all kinds of commercial
establishments except warehouse or open storage depot, dump or
yard, motor repair shop, gasoline service station, light industry
with any machinery or funeral establishment. The rule is that for
an ordinance to be valid and to have force and effect, it must not
only be within the powers of the council to enact but the same
must not be in conflict with or repugnant to the general law.
Conclusion
All considered, the Ordinance invades fundamental personal and
property rights and impairs personal privileges. It is
constitutionally infirm. The Ordinance contravenes statutes; it is
discriminatory and unreasonable in its operation; it is not
sufficiently detailed and explicit that abuses may attend the
enforcement of its sanctions. And not to be forgotten, the City
Council under the Code had no power to enact the Ordinance and
is therefore ultra vires, null and void.
CASE DIGEST :White Light Corp., vs City of Manila
G.R. No. 122846 January 20, 2009 WHITE LIGHT CORPORATION,
TITANIUM CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION, Petitioners, vs. CITY OF MANILA,
represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent.
Police Power Not Validly Exercised Infringement of Private
Rights
On 3 Dec 1992, then Mayor Lim signed into law Ord 7774 entitled
An Ordinance prohibiting short time admission in hotels, motels,
lodging houses, pension houses and similar establishments in the
City of Manila. White Light Corp is an operator of mini hotels and
motels who sought to have the Ordinance be nullified as the said
Ordinance infringes on the private rights of their patrons. The RTC
ruled in favor of WLC. It ruled that the Ordinance strikes at the
personal liberty of the individual guaranteed by the Constitution.
The City maintains that the ordinance is valid as it is a valid
exercise of police power. Under the LGC, the City is empowered to
regulate the establishment, operation and maintenance of cafes,
restaurants, beerhouses, hotels, motels, inns, pension houses,
lodging houses and other similar establishments, including tourist
guides and transports. The CA ruled in favor of the City.
ISSUE: Whether or not Ord 7774 is valid.
HELD: The SC ruled that the said ordinance is null and void as it
indeed infringes upon individual liberty. It also violates the due
process clause which serves as a guaranty for protection against
arbitrary regulation or seizure. The said ordinance invades private
rights. Note that not all who goes into motels and hotels for wash
up rate are really there for obscene purposes only. Some are
tourists who needed rest or to wash up or to freshen up. Hence,
the infidelity sought to be avoided by the said ordinance is more
or less subjected only to a limited group of people. The SC
reiterates that individual rights may be adversely affected only to
the extent that may fairly be required by the legitimate demands
of public interest or public welfare.
Case Brief: White Light Corporation v City of Manila
NOVEMBER 26, 2013JEFF REY
G.R. No. 122846 January 20, 2009
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA.
MESA TOURIST & DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S.
LIM, Respondent.
Facts:
On December 3, 1992, City Mayor Alfredo S. Lim signed into law
Manila City Ordinance No. 7774 entitled An Ordinance
Prohibiting Short-Time Admission, Short-Time Admission Rates,
and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging
Houses, Pension Houses, and Similar Establishments in the City of
Manila (the Ordinance). The ordinance sanctions any person or
corporation who will allow the admission and charging of room
rates for less than 12 hours or the renting of rooms more than
twice a day.
The petitioners White Light Corporation (WLC), Titanium
Corporation (TC), and Sta. Mesa Tourist and Development
Corporation (STDC), who own and operate several hotels and
motels in Metro Manila, filed a motion to intervene and to admit
attached complaint-in-intervention on the ground that the
ordinance will affect their business interests as operators. The
respondents, in turn, alleged that the ordinance is a legitimate
exercise of police power.
RTC declared Ordinance No. 7774 null and void as it strikes at the
personal liberty of the individual guaranteed and jealously
guarded by the Constitution. Reference was made to the
provisions of the Constitution encouraging private enterprises and
the incentive to needed investment, as well as the right to operate
economic enterprises. Finally, from the observation that the illicit
relationships the Ordinance sought to dissuade could nonetheless
be consummated by simply paying for a 12-hour stay,
When elevated to CA, the respondents asserted that the
ordinance is a valid exercise of police power pursuant to Section
458 (4)(iv) of the Local Government Code which confers on cities
the power to regulate the establishment, operation and
maintenance of cafes, restaurants, beerhouses, hotels, motels,
inns, pension houses, lodging houses and other similar
establishments, including tourist guides and transports. Also, they
contended that under Art III Sec 18 of Revised Manila Charter,
they have the power 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 to fix penalties for the violation of
ordinances.
Petitioners argued that the ordinance is unconstitutional and void
since it violates the right to privacy and freedom of movement; it
is an invalid exercise of police power; and it is unreasonable and
oppressive interference in their business.
CA, in turn, reversed the decision of RTC and affirmed the
constitutionality of the ordinance. First, it held that the ordinance
did not violate the right to privacy or the freedom of movement,
as it only penalizes the owners or operators of establishments that
admit individuals for short time stays. Second, the virtually
limitless reach of police power is only constrained by having a
lawful object obtained through a lawful method. The lawful
objective of the ordinance is satisfied since it aims to curb immoral
activities. There is a lawful method since the establishments are
still allowed to operate. Third, the adverse effect on the
establishments is justified by the well-being of its constituents in
general.
Hence, the petitioners appeared before the SC.
Issue:
Whether Ordinance No. 7774 is a valid exercise of police power of
the State.
Held:
No. Ordinance No. 7774 cannot be considered as a valid exercise
of police power, and as such, it is unconstitutional.
The facts of this case will recall to mind not only the recent City of
Manila v Laguio Jr ruling, but the 1967 decision in Ermita-Malate
Hotel and Motel Operations Association, Inc., v. Hon. City Mayor
of Manila. The common thread that runs through those decisions
and the case at bar goes beyond the singularity of the localities
covered under the respective ordinances. All three ordinances
were enacted with a view of regulating public morals including
particular illicit activity in transient lodging establishments. This
could be described as the middle case, wherein there is no
wholesale ban on motels and hotels but the services offered by
these establishments have been severely restricted. At its core,
this is another case about the extent to which the State can
intrude into and regulate the lives of its citizens
The test of a valid ordinance is well established. A long line of
decisions including City of Manila has held that for an ordinance to
be valid, it must not only be within the corporate powers of the
local government unit to enact and pass 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.
The ordinance in this case prohibits two specific and distinct
business practices, namely wash rate admissions and renting out a
room more than twice a day. The ban is evidently sought to be
rooted in the police power as conferred on local government units
by the Local Government Code through such implements as the
general welfare clause.
Police power is based upon the concept of necessity of the State
and its corresponding right to protect itself and its people. Police
power has been used as justification for numerous and varied
actions by the State.
The apparent goal of the ordinance is to minimize if not eliminate
the use of the covered establishments for illicit sex, prostitution,
drug use and alike. These goals, by themselves, are
unimpeachable and certainly fall within the ambit of the police
power of the State. Yet the desirability of these ends do not
sanctify any and all means for their achievement. Those means
must align with the Constitution.
SC contended that if they were to take the myopic view that an
ordinance should be analyzed strictly as to its effect only on the
petitioners at bar, then it would seem that the only restraint
imposed by the law that they were capacitated to act upon is the
injury to property sustained by the petitioners. Yet, they also
recognized the capacity of the petitioners to invoke as well the
constitutional rights of their patrons those persons who would
be deprived of availing short time access or wash-up rates to the
lodging establishments in question. The rights at stake herein fell
within the same fundamental rights to liberty. Liberty as
guaranteed by the Constitution was defined by Justice Malcolm to
include the right to exist and the right to be free from arbitrary
restraint or servitude. The term cannot be dwarfed into mere
freedom from physical restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy the facilities with
which he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare,
Indeed, the right to privacy as a constitutional right must be
recognized and the invasion of it should be justified by a
compelling state interest. Jurisprudence accorded recognition to
the right to privacy independently of its identification with liberty;
in itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain intrusions into
the personal life of the citizen.
An ordinance which prevents the lawful uses of a wash rate
depriving patrons of a product and the petitioners of lucrative
business ties in with another constitutional requisite for the
legitimacy of the ordinance as a police power measure. It must
appear that the interests of the public generally, as distinguished
from those of a particular class, require an interference with
private rights and the means must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive of
private rights. It must also be evident that no other alternative for
the accomplishment of the purpose less intrusive of private rights
can work. More importantly, a reasonable relation must exist
between the purposes of the measure and the means employed
for its accomplishment, for even under the guise of protecting the
public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded.
Lacking a concurrence of these requisites, the police measure shall
be struck down as an arbitrary intrusion into private rights.
The behavior which the ordinance seeks to curtail is in fact already
prohibited and could in fact be diminished simply by applying
existing laws. Less intrusive measures such as curbing the
proliferation of prostitutes and drug dealers through active police
work would be more effective in easing the situation. So would
the strict enforcement of existing laws and regulations penalizing
prostitution and drug use. These measures would have minimal
intrusion on the businesses of the petitioners and other legitimate
merchants. Further, it is apparent that the ordinance can easily be
circumvented by merely paying the whole day rate without any
hindrance to those engaged in illicit activities. Moreover, drug
dealers and prostitutes can in fact collect wash rates from their
clientele by charging their customers a portion of the rent for
motel rooms and even apartments.
SC reiterated that individual rights may be adversely affected only
to the extent that may fairly be required by the legitimate
demands of public interest or public welfare. The State is a
leviathan that must be restrained from needlessly intruding into
the lives of its citizens. However well-intentioned the ordinance
may be, it is in effect an arbitrary and whimsical intrusion into the
rights of the establishments as well as their patrons. The
ordinance needlessly restrains the operation of the businesses of
the petitioners as well as restricting the rights of their patrons
without sufficient justification. The ordinance rashly equates wash
rates and renting out a room more than twice a day with
immorality without accommodating innocuous intentions.
WHEREFORE, the Petition is GRANTED. The Decision of the Court
of Appeals is REVERSED, and the Decision of the Regional Trial
Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is
hereby declared UNCONSTITUTIONAL. No pronouncement as to
costs.
ICHONG VS HERNANDEZ
G.R. No. L-7995 May 31, 1957
LAO H. ICHONG, in his own behalf and in behalf of other alien
residents, corporations and partnerships adversely affected. by
Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO
SARMIENTO, City Treasurer of Manila, respondents.
Facts:
Driven by aspirations for economic independence and national
security, the Congress enacted Act No. 1180 entitled An Act to
Regulate the Retail Business. The main provisions of the Act,
among others, are:
(1) Prohibition against persons, not citizens of the Philippines, and
against associations, among others, from engaging directly or
indirectly in the retail trade; and
(2) Prohibition against the establishment or opening by aliens
actually engaged in the retail business of additional stores or
branches of retail business.
Lao H. Ichong, in his own behalf and on behalf of other alien
residents, corporations and partnerships adversely affected by the
said Act, brought an action to obtain a judicial declaration, and to
enjoin the Secretary of Finance, Jaime Hernandez, and all other
persons acting under him, particularly city and municipal
treasurers, from enforcing its provisions. Petitioner attacked the
constitutionality of the Act, contending that:
It denies to alien residents the equal protection of the laws and
deprives of their liberty and property without due process of law.
The subject of the Act is not expressed or comprehended in the
title thereof.
The Act violates international and treaty obligations of the
Republic of the Philippines.
Issue/s:
Whether or not a law may invalidate or supersede treaties or
generally accepted principles.
Discussions:
A generally accepted principle of international law, should be
observed by us in good faith. If a treaty would be in conflict with a
statute then the statute must be upheld because it represented an
exercise of the police power which, being inherent could not be
Ruling/s:
Yes, a law may supersede a treaty or a generally accepted
principle. In this case, the Supreme Court saw no conflict between
the raised generally accepted principle and with RA 1180. The
equal protection of the law clause does not demand absolute
equality amongst residents; it merely requires that all persons
shall be treated alike, under like circumstances and conditions
both as to privileges conferred and liabilities enforced; and, that
the equal protection clause is not infringed by legislation which
applies only to those persons falling within a specified class, if it
applies alike to all persons within such class, and reasonable
grounds exist for making a distinction between those who fall
within such class and those who do not.
Constitutional Law Treaties May Be Superseded by Municipal
Laws in the Exercise of Police Power
Lao Ichong is a Chinese businessman who entered the country to
take advantage of business opportunities herein abound (then)
particularly in the retail business. For some time he and his fellow
Chinese businessmen enjoyed a monopoly in the local market in
Pasay. Until in June 1954 when Congress passed the RA 1180 or
the Retail Trade Nationalization Act the purpose of which is to
reserve to Filipinos the right to engage in the retail business.
Ichong then petitioned for the nullification of the said Act on the
ground that it contravened several treaties concluded by the RP
which, according to him, violates the equal protection clause
(pactasundservanda). He said that as a Chinese businessman
engaged in the business here in the country who helps in the
income generation of the country he should be given equal
opportunity.
ISSUE: Whether or not a law may invalidate or supersede treaties
or generally accepted principles.
HELD: Yes, a law may supersede a treaty or a generally accepted
principle. In this case, there is no conflict at all between the raised
generally accepted principle and with RA 1180. The equal
protection of the law clause does not demand absolute equality
amongst residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced; and, that the equal
protection clause is not infringed by legislation which applies only
to those persons falling within a specified class, if it applies alike to
all persons within such class, and reasonable grounds exist for
making a distinction between those who fall within such class and
those who do not.
For the sake of argument, even if it would be assumed that a
treaty would be in conflict with a statute then the statute must be
upheld because it represented an exercise of the police power
which, being inherent could not be bargained away or
surrendered through the medium of a treaty. Hence, Ichong can
no longer assert his right to operate his market stalls in the Pasay
city market.
Osmea v Orbos (1993)
GR No 99886, March 31, 1993
FACTS:
President Marcos created a special account in the General Fund
designated as the Oil Price Stabilization Fund (OPSF). The OPSF
was designated to reimburse oil companies for cost increases in
crude oil. Subsequently, EO 137 expanded the grounds for
reimbursement to oil companies for cost underrecovery. Now, the
petition avers that the creation of the trust fund violates the
Constitution that if a special tax is collected for a specific purpose,
the revenue generated as a special fund to be used only for the
purpose indicated.
ISSUE:
Is the OPSF constitutional?
RULING:
Yes. The tax collected is not in pure exercise of the taxing power. It
is levied with a regulatory purpose, to provide a means for the
stabilization of the petroleum products industry. The levy is
primarily in the exercise of the police power of the State.
OSMEA vs. ORBOS
220 SCRA 703
GR No. 99886, March 31, 1993
" To avoid the taint of unlawful delegation of the power to tax,
there must be a standard which implies that the legislature
determines matter of principle and lays down fundamental
policy."
FACTS: Senator John Osmea assails the constitutionality of
paragraph 1c of PD 1956, as amended by EO 137, empowering the
Energy Regulatory Board (ERB) to approve the increase of fuel
prices or impose additional amounts on petroleum products which
proceeds shall accrue to the Oil Price Stabilization Fund (OPSF)
established for the reimbursement to ailing oil companies in the
event of sudden price increases. The petitioner avers that the
collection on oil products establishments is an undue and invalid
delegation of legislative power to tax. Further, the petitioner
points out that since a 'special fund' consists of monies collected
through the taxing power of a State, such amounts belong to the
State, although the use thereof is limited to the special
purpose/objective for which it was created. It thus appears that
the challenge posed by the petitioner is premised primarily on the
view that the powers granted to the ERB under P.D. 1956, as
amended, partake of the nature of the taxation power of the
State.
ISSUE: Is there an undue delegation of the legislative power of
taxation?
HELD: None. It seems clear that while the funds collected may be
referred to as taxes, they are exacted in the exercise of the police
power of the State. Moreover, that the OPSF as a special fund is
plain from the special treatment given it by E.O. 137. It is
segregated from the general fund; and while it is placed in what
the law refers to as a "trust liability account," the fund
nonetheless remains subject to the scrutiny and review of the
COA. The Court is satisfied that these measures comply with the
constitutional description of a "special fund." With regard to the
alleged undue delegation of legislative power, the Court finds that
the provision conferring the authority upon the ERB to impose
additional amounts on petroleum products provides a sufficient
standard by which the authority must be exercised. In addition to
the general policy of the law to protect the local consumer by
stabilizing and subsidizing domestic pump rates, P.D. 1956
expressly authorizes the ERB to impose additional amounts to
augment the resources of the Fund.
Association of Small Landowners in the Philippines, Inc. vs
Secretary of Agrarian Reform
November 6, 2010
175 SCRA 343 Political Law Constitutional Law Bill of Rights
Equal Protection Valid Classification
Eminent Domain Just Compensation
These are four consolidated cases questioning the
constitutionality of the Comprehensive Agrarian Reform Act (R.A.
No. 6657 and related laws i.e., Agrarian Land Reform Code or R.A.
No. 3844).
Brief background: Article XIII of the Constitution on Social Justice
and Human Rights includes a call for the adoption by the State of
an agrarian reform program. The State shall, by law, undertake an
agrarian reform program founded on the right of farmers and
regular farmworkers, who are landless, to own directly or
collectively the lands they till or, in the case of other farmworkers,
to receive a just share of the fruits thereof. RA 3844 was enacted
in 1963. P.D. No. 27 was promulgated in 1972 to provide for the
compulsory acquisition of private lands for distribution among
tenant-farmers and to specify maximum retention limits for
landowners. In 1987, President Corazon Aquino issued E.O. No.
228, declaring full land ownership in favor of the beneficiaries of
PD 27 and providing for the valuation of still unvalued lands
covered by the decree as well as the manner of their payment. In
1987, P.P. No. 131, instituting a comprehensive agrarian reform
program (CARP) was enacted; later, E.O. No. 229, providing the
mechanics for its (PP131s) implementation, was also enacted.
Afterwhich is the enactment of R.A. No. 6657, Comprehensive
Agrarian Reform Law in 1988. This law, while considerably
changing the earlier mentioned enactments, nevertheless gives
them suppletory effect insofar as they are not inconsistent with its
provisions.
[Two of the consolidated cases are discussed below]
G.R. No. 78742: (Association of Small Landowners vs Secretary)
The Association of Small Landowners in the Philippines, Inc.
sought exception from the land distribution scheme provided for
in R.A. 6657. The Association is comprised of landowners of
ricelands and cornlands whose landholdings do not exceed 7
hectares. They invoke that since their landholdings are less than 7
hectares, they should not be forced to distribute their land to their
tenants under R.A. 6657 for they themselves have shown
willingness to till their own land. In short, they want to be
exempted from agrarian reform program because they claim to
belong to a different class.
G.R. No. 79777: (Manaay vs Juico)
Nicolas Manaay questioned the validity of the agrarian reform
laws (PD 27, EO 228, and 229) on the ground that these laws
already valuated their lands for the agrarian reform program and
that the specific amount must be determined by the Department
of Agrarian Reform (DAR). Manaay averred that this violated the
principle in eminent domain which provides that only courts can
determine just compensation. This, for Manaay, also violated due
process for under the constitution, no property shall be taken for
public use without just compensation.
Manaay also questioned the provision which states that
landowners may be paid for their land in bonds and not
necessarily in cash. Manaay averred that just compensation has
always been in the form of money and not in bonds.
ISSUE:
1. Whether or not there was a violation of the equal protection
clause.
2. Whether or not there is a violation of due process.
3. Whether or not just compensation, under the agrarian reform
program, must be in terms of cash.
HELD:
1. No. The Association had not shown any proof that they belong
to a different class exempt from the agrarian reform program.
Under the law, classification has been defined as the grouping of
persons or things similar to each other in certain particulars and
different from each other in these same particulars. To be valid, it
must conform to the following requirements:
(1) it must be based on substantial distinctions;
(2) it must be germane to the purposes of the law;
(3) it must not be limited to existing conditions only; and
(4) it must apply equally to all the members of the class.
Equal protection simply means that all persons or things similarly
situated must be treated alike both as to the rights conferred and
the liabilities imposed. The Association have not shown that they
belong to a different class and entitled to a different treatment.
The argument that not only landowners but also owners of other
properties must be made to share the burden of implementing
land reform must be rejected. There is a substantial distinction
between these two classes of owners that is clearly visible except
to those who will not see. There is no need to elaborate on this
matter. In any event, the Congress is allowed a wide leeway in
providing for a valid classification. Its decision is accorded
recognition and respect by the courts of justice except only where
its discretion is abused to the detriment of the Bill of Rights. In the
contrary, it appears that Congress is right in classifying small
landowners as part of the agrarian reform program.
2. No. It is true that the determination of just compensation is a
power lodged in the courts. However, there is no law which
prohibits administrative bodies like the DAR from determining just
compensation. In fact, just compensation can be that amount
agreed upon by the landowner and the government even
without judicial intervention so long as both parties agree. The
DAR can determine just compensation through appraisers and if
the landowner agrees, then judicial intervention is not needed.
What is contemplated by law however is that, the just
compensation determined by an administrative body is merely
preliminary. If the landowner does not agree with the finding of
just compensation by an administrative body, then it can go to
court and the determination of the latter shall be the final
determination. This is even so provided by RA 6657:
Section 16 (f): Any party who disagrees with the decision may
bring the matter to the court of proper jurisdiction for final
determination of just compensation.
3. No. Money as [sole] payment for just compensation is merely a
concept in traditional exercise of eminent domain. The agrarian
reform program is a revolutionary exercise of eminent domain.
The program will require billions of pesos in funds if all
compensation have to be made in cash if everything is in cash,
then the government will not have sufficient money hence, bonds,
and other securities, i.e., shares of stocks, may be used for just
compensation.
Association of Small Landowners in the Philippines v. Honorable
Secretary of Agrarian Reform
G.R. No. 78742
July 14, 1989
Ponente: CRUZ, J.
FACTS
Cases have been consolidated because they involve
common legal questions. They will be subject to one
common discussion and resolution.
G.R. No. 79777:
The petitioners are Nicolas Manaay and his wife who
own a 9-hectare riceland worked by four tenants and
Augustin Hermano, Jr. who owns a 5-hectare riceland
worked by four tenants. They question the
constitutionality of P.D. No. 27, E.O. Nos. 228 & 229,
and R.A. No. 6657 since their tenants were declared
full owners of the mentioned lands.
G.R. No. 79310
Landowners and sugar planters in the Victorias Mill
District, Victorias, Negros Occidental and Planters
Committee Inc., with 1400 planter-members,
submitted a petition seeking to prohibit the
implementation of Proc. No. 131 and E.O. No. 229.
Aug. 27, 1987 A motion for intervention was filed by
the National Federation of Sugarcane Planters, which
claim 20 000 members). It was granted by the court.
Sept. 10, 1987 A motion for intervention was filed by
Manuel Barcelona, et al., representing coconut and
riceland owners. It was granted by the court.
G.R. No. 79744
Sept. 3 1986 The petitioner protested the erroneous
inclusion of his small landholding under Operation
Land Transfer accusing the then Secretary of DAR of
violation of due process and the requirement for just
compensation. Certificates of Land Transfer were
issued to the private respondents who then refused to
pay lease rentals. The petitioner is asking for the recall
and cancellation of these certificates.
Dec. 24, 1986 Petitioner claims his petition was
denied without hearing.
Feb. 17, 1987 A motion for reconsideration was filed
which had not been acted upon when E.O. Nos. 228 &
229 were issued which rendered his motion moot.
ISSUES
1. Whether or not the President had the power to
promulgate Proc. No. 131 and E.O. Nos. 228 & 229
2. Whether or not the President had the legislative power
for issuing the measures
3. Whether or not Proc. No. 131 conforms to the
requirements of a valid appropriation as specified in
the Constitution
4. Whether or not Proc. No. 131 and E.O. No. 229 should
be invalidated because they do not provide for
retention limits required by Article 13, Section 4 of the
Constitution
5. Whether or not E.O. No. 229 violates constitutional
requirement that a bill should only have one subject, to
be expressed in its title
 6. Whether or not the writ of mandamus can issue to
compel the performance of a discretionary act,
especially by a specific department of the government.
7. Whether this statute is an exercise of police power or
the power of eminent domain
8. Whether or not the statutes are valid exercises of
police power
9. Whether or not the equal protection clause was
violated
10. Whether or not the content and manner of the just
compensation provided for in the CARP Law is not
violative of the Constitution
11. Whether or not there is contravention of a well-
accepted principle of eminent domain by divesting the
landowner of his property even before actual payment
to him in full of just compensation
credits, and other things of value equivalent to the
amount of just compensation.
(Court: We do not mind admitting that a certain degree of
pragmatism has influenced our decision on this issue. The Court is
as acutely anxious as the rest of our people to see the goal of
agrarian reform achieved at last after the frustrations and
deprivations of our peasant masses during all these disappointing
decades. We are aware that invalidation of the said section will
result in the nullification of the entire program, killing the farmer's
hopes even as they approach realization and resurrecting the
spectre of discontent and dissent in the restless countryside. That
is not in our view the intention of the Constitution, and that is not
what we shall decree today.)
11. NO. The CARP Law conditions the transfer of
possession and ownership of the land to the
government on receipt by the landowner of the
corresponding payment or the deposit by the DAR of
the compensation in cash or LBP bonds with an
accessible bank. Until then, title also remains with the
landowner.

RULING

1. YES. P.D. No. 27 by President Marcos during Martial DISPOSITIVE

Law has been sustained in Gonzales v. Estrella.
President Aquino is authorized under Section 6 of the
Transitory Provisions of the 1987 Constitution to
promulgate Proc. No. 131 and E.O. Nos. 228 & 229.
2. YES. The said measures were issued before July 27,
1987, when the Congress was formally convened and
took over legislative power.
3. NO. Proc. No. 131 is not an appropriation measure for
that is not its principal purpose and therefore is not
required to conform to the requirements.
4. NO. R.A. No. 6657 does provide for such limits now in
Section 6 of the law.
5. NO. It is settled that the title of the bill does not have
to be a catalogue of its contents and will suffice if the
matters embodied in the text are relevant to each
other and may be inferred from the title.
WHEREFORE, the Court holds as follows:
1. R.A. No. 6657, P.D. No. 27, Proc. No. 131, and E.O. Nos. 228 and
229 are SUSTAINED against all the constitutional objections raised
in the herein petitions.
2. Title to all expropriated properties shall be transferred to the
State only upon full payment of compensation to their respective
owners.
3. All rights previously acquired by the tenant- farmers under P.D.
No. 27 are retained and recognized.
4. Landowners who were unable to exercise their rights of
retention under P.D. No. 27 shall enjoy the retention rights granted
by R.A. No. 6657 under the conditions therein prescribed.
5. Subject to the above-mentioned rulings all the petitions are
DISMISSED, without pronouncement as to costs.

6. NO. The rule is that mandamus will lie to compel the

discharge of the discretionary duty itself but not to
control the discretion to be exercised. In other words,
mandamus can issue to require action only but not
specific action.

7. It is an exercise of the power of eminent domain

because there is payment of just compensation unlike
in the exercise of police power wherein confiscation of
property is not compensable.

8. YES. A statute may be sustained under the police

power only if there is a concurrence of the lawful
subject and the lawful method. As the subject and
purpose of agrarian reform have been laid down by the
Constitution itself, we may say that the first
requirement has been satisfied. What remains to be
examined is the validity of the method employed to
achieve the constitutional goal.

9. NO. The petitioners have not shown that they belong

to a different class and entitled to a different
treatment. The argument that not only landowners but
also owners of other properties must be made to share
the burden of implementing land reform must be
rejected. There is a substantial distinction between
these two classes of owners that is clearly visible
except to those who will not see.

10. NO. It is declared that although money is the

traditional mode of payment, other modes of payment
shall be permitted as compensation. The court accepts
the theory that payment of the just compensation is
not always required to be made fully in money, they
find further that the proportion of cash payment to the
other things of value constituting the total payment, as
determined on the basis of the areas of the lands
expropriated, is not unduly oppressive upon the
landowner. The other modes, which are likewise
available to the landowner at his option, are also not
unreasonable because payment is made in shares of
stock, LBP bonds, other properties or assets, tax