Republic of the Philippines

SUPREME COURT
Manila

SECTION 1. Declaration of Policy. It is hereby the declared

policy of the City Government to protect the best interest,
health and welfare, and the morality of its constituents in
general and the youth in particular.

EN BANC
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.
DECISION
Tinga, J.:
With another city ordinance of Manila also principally
involving the tourist district as subject, the Court is
confronted anew with the incessant clash between
government power and individual liberty in tandem with
the archetypal tension between law and morality.
In City of Manila v. Laguio, Jr.,1 the Court affirmed the
nullification of a city ordinance barring the operation of
motels and inns, among other establishments, within the
Ermita-Malate area. The petition at bar assails a similarlymotivated city ordinance that prohibits those same
establishments from offering short-time admission, as well
as pro-rated or "wash up" rates for such abbreviated stays.
Our earlier decision tested the city ordinance against our
sacred constitutional rights to liberty, due process and
equal protection of law. The same parameters apply to the
present petition.
This Petition2 under Rule 45 of the Revised Rules on Civil
Procedure, which seeks the reversal of the Decision3 in
C.A.-G.R. S.P. No. 33316 of the Court of Appeals,
challenges the validity of 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).

SEC. 2. Title. This ordinance shall be known as "An

Ordinance" prohibiting short time admission in hotels,
motels, lodging houses, pension houses and similar
establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission
and rate [sic], wash-up rate or other similarly concocted
terms, are hereby prohibited in hotels, motels, inns,
lodging houses, pension houses and similar establishments
in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall
mean admittance and charging of room rate for less than
twelve (12) hours at any given time or the renting out of
rooms more than twice a day or any other term that may
be concocted by owners or managers of said
establishments but would mean the same or would bear
the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who
shall violate any provision of this ordinance shall upon
conviction thereof be punished by a fine of Five Thousand
(P5,000.00) Pesos or imprisonment for a period of not
exceeding one (1) year or both such fine and
imprisonment at the discretion of the court; Provided,
That in case of [a] juridical person, the president, the
manager, or the persons in charge of the operation
thereof shall be liable: Provided, further, That in case of
subsequent conviction for the same offense, the business
license of the guilty party shall automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City
ordinances not consistent with or contrary to this measure
or any portion hereof are hereby deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect
immediately upon approval.
Enacted by the city Council of Manila at its regular session
today, November 10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.

I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor
Lim) signed into law the Ordinance.4 The Ordinance is
reproduced in full, hereunder:

On December 15, 1992, the Malate Tourist and

Development Corporation (MTDC) filed a complaint for
declaratory relief with prayer for a writ of preliminary
injunction and/or temporary restraining order ( TRO)5 with
the Regional Trial Court (RTC) of Manila, Branch 9
impleading as defendant, herein respondent City of Manila
(the City) represented by Mayor Lim.6 MTDC prayed that
the Ordinance, insofar as it includes motels and inns as

among its prohibited establishments, be declared invalid

and unconstitutional. MTDC claimed that as owner and
operator of the Victoria Court in Malate, Manila it was
authorized by Presidential Decree (P.D.) No. 259 to admit
customers on a short time basis as well as to charge
customers wash up rates for stays of only three hours.
On December 21, 1992, petitioners White Light
Corporation (WLC), Titanium Corporation (TC) and Sta.
Mesa Tourist and Development Corporation (STDC) filed a
motion to intervene and to admit attached complaint-inintervention7 on the ground that the Ordinance directly
affects their business interests as operators of drive-inhotels and motels in Manila.8 The three companies are
components of the Anito Group of Companies which owns
and operates several hotels and motels in Metro Manila.9
On December 23, 1992, the RTC granted the motion to
intervene.10 The RTC also notified the Solicitor General of
the proceedings pursuant to then Rule 64, Section 4 of the
Rules of Court. On the same date, MTDC moved to
withdraw as plaintiff.11
On December 28, 1992, the RTC granted MTDC's motion to
withdraw.12 The RTC issued a TRO on January 14, 1993,
directing the City to cease and desist from enforcing the
Ordinance.13 The City filed an Answer dated January 22,
1993 alleging that the Ordinance is a legitimate exercise of
police power.14
On February 8, 1993, the RTC issued a writ of preliminary
injunction ordering the city to desist from the
enforcement of the Ordinance.15 A month later, on March
8, 1993, the Solicitor General filed his Comment arguing
that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC
agreed to submit the case for decision without trial as the
case involved a purely legal question.16 On October 20,
1993, the RTC rendered a decision declaring the Ordinance
null and void. The dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, [O]rdinance No.
7774 of the City of Manila is hereby declared null and void.
Accordingly, the preliminary injunction heretofor issued is
hereby made permanent.
SO ORDERED.17
The RTC noted that the ordinance "strikes at the personal
liberty of the individual guaranteed and jealously guarded
by the Constitution."18 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, the RTC
likened the law to the ordinance annulled in Ynot v.
Intermediate Appellate Court,19 where the legitimate
purpose of preventing indiscriminate slaughter of carabaos
was sought to be effected through an inter-province ban
on the transport of carabaos and carabeef.
The City later filed a petition for review on certiorari with
the Supreme Court.20 The petition was docketed as G.R.
No. 112471. However in a resolution dated January 26,
1994, the Court treated the petition as a petition
forcertiorari and referred the petition to the Court of
Appeals.21
Before the Court of Appeals, the City 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, among other local government units, 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.22
The Ordinance, it is argued, is also a valid exercise of the
power of the City under Article III, Section 18(kk) of the
Revised Manila Charter, thus:
"to enact all ordinances it may deem necessary and proper
for the sanitation and safety, the furtherance of the
prosperity and the promotion of the morality, peace, good
order, comfort, convenience and general welfare of the
city and its inhabitants, and such others as be necessary to
carry into effect and discharge the powers and duties
conferred by this Chapter; and to fix penalties for the
violation of ordinances which shall not exceed two
hundred pesos fine or six months imprisonment, or both
such fine and imprisonment for a single offense.23
Petitioners argued that the Ordinance is unconstitutional
and void since it violates the right to privacy and the
freedom of movement; it is an invalid exercise of police
power; and it is an unreasonable and oppressive
interference in their business.
The Court of Appeals reversed the decision of the RTC and
affirmed the constitutionality of the Ordinance.24First, 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. Finally, as
held in Ermita-Malate Motel Operators Association v. City
Mayor of Manila, liberty is regulated by law.
TC, WLC and STDC come to this Court via petition for
review on certiorari.25 In their petition and Memorandum,
petitioners in essence repeat the assertions they made
before the Court of Appeals. They contend that the
assailed Ordinance is an invalid exercise of police power.
II.
We must address the threshold issue of petitioners
standing. Petitioners allege that as owners of
establishments offering "wash-up" rates, their business is
being unlawfully interfered with by the Ordinance.
However, petitioners also allege that the equal protection
rights of their clients are also being interfered with. Thus,
the crux of the matter is whether or not these
establishments have the requisite standing to plead for
protection of their patrons' equal protection rights.
Standing or locus standi is the ability of a party to
demonstrate to the court sufficient connection to and
harm from the law or action challenged to support that
party's participation in the case. More importantly, the
doctrine of standing is built on the principle of separation
of powers,26 sparing as it does unnecessary interference or
invalidation by the judicial branch of the actions rendered
by its co-equal branches of government.
The requirement of standing is a core component of the
judicial system derived directly from the
Constitution.27The constitutional component of standing
doctrine incorporates concepts which concededly are not
susceptible of precise definition.28 In this jurisdiction, the
extancy of "a direct and personal interest" presents the
most obvious cause, as well as the standard test for a
petitioner's standing.29 In a similar vein, the United States
Supreme Court reviewed and elaborated on the meaning
of the three constitutional standing requirements of injury,
causation, and redressability in Allen v. Wright.30
Nonetheless, the general rules on standing admit of
several exceptions such as the overbreadth doctrine,
taxpayer suits, third party standing and, especially in the
Philippines, the doctrine of transcendental importance.31
For this particular set of facts, the concept of third party
standing as an exception and the overbreadth doctrine are
appropriate. In Powers v. Ohio,32 the United States
Supreme Court wrote that: "We have recognized the right
of litigants to bring actions on behalf of third parties,

provided three important criteria are satisfied: the litigant

must have suffered an injury-in-fact, thus giving him or
her a "sufficiently concrete interest" in the outcome of the
issue in dispute; the litigant must have a close relation to
the third party; and there must exist some hindrance to
the third party's ability to protect his or her own
interests."33 Herein, it is clear that the business interests of
the petitioners are likewise injured by the Ordinance. They
rely on the patronage of their customers for their
continued viability which appears to be threatened by the
enforcement of the Ordinance. The relative silence in
constitutional litigation of such special interest groups in
our nation such as the American Civil Liberties Union in the
United States may also be construed as a hindrance for
customers to bring suit.34
American jurisprudence is replete with examples where
parties-in-interest were allowed standing to advocate or
invoke the fundamental due process or equal protection
claims of other persons or classes of persons injured by
state action. In Griswold v. Connecticut,35 the United States
Supreme Court held that physicians had standing to
challenge a reproductive health statute that would
penalize them as accessories as well as to plead the
constitutional protections available to their patients. The
Court held that:
"The rights of husband and wife, pressed here, are likely to
be diluted or adversely affected unless those rights are
considered in a suit involving those who have this kind of
confidential relation to them."36
An even more analogous example may be found in Craig v.
Boren,37 wherein the United States Supreme Court held
that a licensed beverage vendor has standing to raise the
equal protection claim of a male customer challenging a
statutory scheme prohibiting the sale of beer to males
under the age of 21 and to females under the age of 18.
The United States High Court explained that the vendors
had standing "by acting as advocates of the rights of third
parties who seek access to their market or function."38
Assuming arguendo that petitioners do not have a
relationship with their patrons for the former to assert the
rights of the latter, the overbreadth doctrine comes into
play. In overbreadth analysis, challengers to government
actionare in effect permitted to raise the rights of third
parties. Generally applied to statutes infringing on the
freedom of speech, the overbreadth doctrine applies when
a statute needlessly restrains even constitutionally
guaranteed rights.39 In this case, the petitioners claim that
the Ordinance makes a sweeping intrusion into the right to
liberty of their clients. We can see that based on the
allegations in the petition, the Ordinance suffers from
overbreadth.

We thus recognize that the petitioners have a right to

assert the constitutional rights of their clients to patronize
their establishments for a "wash-rate" time frame.
III.
To students of jurisprudence, the facts of this case will
recall to mind not only the recent City of Manila ruling, but
our 1967 decision in Ermita-Malate Hotel and Motel
Operations Association, Inc., v. Hon. City Mayor of
Manila.40Ermita-Malate concerned the City ordinance
requiring patrons to fill up a prescribed form stating
personal information such as name, gender, nationality,
age, address and occupation before they could be
admitted to a motel, hotel or lodging house. This earlier
ordinance was precisely enacted to minimize certain
practices deemed harmful to public morals. A purpose
similar to the annulled ordinance in City of Manila which
sought a blanket ban on motels, inns and similar
establishments in the Ermita-Malate area. However, the
constitutionality of the ordinance in Ermita-Malate was
sustained by the Court.
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.41
The Ordinance 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.
A.

Police power, while incapable of an exact definition, has

been purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide
enough room for an efficient and flexible response as the
conditions warrant.42 Police power is based upon the
concept of necessity of the State and its corresponding
right to protect itself and its people.43 Police power has
been used as justification for numerous and varied actions
by the State. These range from the regulation of dance
halls,44 movie theaters,45 gas stations46 and cockpits.47 The
awesome scope of police power is best demonstrated by
the fact that in its hundred or so years of presence in our
nations legal system, its use has rarely been denied.
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, and our emerging sophisticated analysis of
its guarantees to the people. The Bill of Rights stands as a
rebuke to the seductive theory of Macchiavelli, and,
sometimes even, the political majorities animated by his
cynicism.
Even as we design the precedents that establish the
framework for analysis of due process or equal protection
questions, the courts are naturally inhibited by a due
deference to the co-equal branches of government as they
exercise their political functions. But when we are
compelled to nullify executive or legislative actions, yet
another form of caution emerges. If the Court were
animated by the same passing fancies or turbulent
emotions that motivate many political decisions, judicial
integrity is compromised by any perception that the
judiciary is merely the third political branch of
government. We derive our respect and good standing in
the annals of history by acting as judicious and neutral
arbiters of the rule of law, and there is no surer way to
that end than through the development of rigorous and
sophisticated legal standards through which the courts
analyze the most fundamental and far-reaching
constitutional questions of the day.
B.
The primary constitutional question that confronts us is
one of due process, as guaranteed under Section 1, Article
III of the Constitution. Due process evades a precise
definition.48 The purpose of the guaranty is to prevent
arbitrary governmental encroachment against the life,
liberty and property of individuals. The due process
guaranty serves as a protection against arbitrary
regulation or seizure. Even corporations and partnerships

are protected by the guaranty insofar as their property is

concerned.
The due process guaranty has traditionally been
interpreted as imposing two related but distinct
restrictions on government, "procedural due process" and
"substantive due process." Procedural due process refers
to the procedures that the government must follow before
it deprives a person of life, liberty, or
property.49 Procedural due process concerns itself with
government action adhering to the established process
when it makes an intrusion into the private sphere.
Examples range from the form of notice given to the level
of formality of a hearing.
If due process were confined solely to its procedural
aspects, there would arise absurd situation of arbitrary
government action, provided the proper formalities are
followed. Substantive due process completes the
protection envisioned by the due process clause. It
inquires whether the government has sufficient
justification for depriving a person of life, liberty, or
property.50
The question of substantive due process, moreso than
most other fields of law, has reflected dynamism in
progressive legal thought tied with the expanded
acceptance of fundamental freedoms. Police power,
traditionally awesome as it may be, is now confronted
with a more rigorous level of analysis before it can be
upheld. The vitality though of constitutional due process
has not been predicated on the frequency with which it
has been utilized to achieve a liberal result for, after all,
the libertarian ends should sometimes yield to the
prerogatives of the State. Instead, the due process clause
has acquired potency because of the sophisticated
methodology that has emerged to determine the proper
metes and bounds for its application.
C.
The general test of the validity of an ordinance on
substantive due process grounds is best tested when
assessed with the evolved footnote 4 test laid down by the
U.S. Supreme Court in U.S. v. Carolene
Products.51 Footnote 4 of the Carolene Products case
acknowledged that the judiciary would defer to the
legislature unless there is a discrimination against a
"discrete and insular" minority or infringement of a
"fundamental right."52 Consequently, two standards of
judicial review were established: strict scrutiny for laws
dealing with freedom of the mind or restricting the
political process, and the rational basis standard of review
for economic legislation.
A third standard, denominated as heightened or
immediate scrutiny, was later adopted by the U.S.

Supreme Court for evaluating classifications based on

gender53 and legitimacy.54 Immediate scrutiny was
adopted by the U.S. Supreme Court in Craig,55 after the
Court declined to do so in Reed v. Reed.56 While the test
may have first been articulated in equal protection
analysis, it has in the United States since been applied in
all substantive due process cases as well.
We ourselves have often applied the rational basis test
mainly in analysis of equal protection challenges.57 Using
the rational basis examination, laws or ordinances are
upheld if they rationally further a legitimate governmental
interest.58 Under intermediate review, governmental
interest is extensively examined and the availability of less
restrictive measures is considered.59 Applying strict
scrutiny, the focus is on the presence of compelling, rather
than substantial, governmental interest and on the
absence of less restrictive means for achieving that
interest.
In terms of judicial review of statutes or ordinances, strict
scrutiny refers to the standard for determining the quality
and the amount of governmental interest brought to
justify the regulation of fundamental freedoms.60 Strict
scrutiny is used today to test the validity of laws dealing
with the regulation of speech, gender, or race as well as
other fundamental rights as expansion from its earlier
applications to equal protection.61 The United States
Supreme Court has expanded the scope of strict scrutiny
to protect fundamental rights such as suffrage,62 judicial
access63 and interstate travel.64
If we 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 which we are capacitated to
act upon is the injury to property sustained by the
petitioners, an injury that would warrant the application of
the most deferential standard the rational basis test. Yet
as earlier stated, we recognize 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.
Viewed cynically, one might say that the infringed rights of
these customers were are trivial since they seem shorn of
political consequence. Concededly, these are not the sort
of cherished rights that, when proscribed, would impel the
people to tear up their cedulas. Still, the Bill of Rights does
not shelter gravitas alone. Indeed, it is those "trivial" yet
fundamental freedoms which the people reflexively
exercise any day without the impairing awareness of their
constitutional consequence that accurately reflect the
degree of liberty enjoyed by the people. Liberty, as
integrally incorporated as a fundamental right in the
Constitution, is not a Ten Commandments-style

enumeration of what may or what may not be done; but

rather an atmosphere of freedom where the people do
not feel labored under a Big Brother presence as they
interact with each other, their society and nature, in a
manner innately understood by them as inherent, without
doing harm or injury to others.

Manila case. Our holding therein retains significance for

our purposes:
The concept of liberty compels respect for the individual
whose claim to privacy and interference demands respect.
As the case of Morfe v. Mutuc, borrowing the words of
Laski, so very aptly stated:

D.
The rights at stake herein fall within the same fundamental
rights to liberty which we upheld in City of Manila v. Hon.
Laguio, Jr. We expounded on that most primordial of
rights, thus:
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."[65] In
accordance with this case, the rights of the citizen to be
free to use his faculties in all lawful ways; to live and work
where he will; to earn his livelihood by any lawful calling;
and to pursue any avocation are all deemed embraced in
the concept of liberty.[66]
The U.S. Supreme Court in the case of Roth v. Board of
Regents, sought to clarify the meaning of "liberty." It said:
While the Court has not attempted to define with
exactness the liberty . . . guaranteed [by the Fifth and
Fourteenth Amendments], the term denotes not merely
freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God
according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized . . . as
essential to the orderly pursuit of happiness by free men.
In a Constitution for a free people, there can be no doubt
that the meaning of "liberty" must be broad
indeed.67 [Citations omitted]
It cannot be denied that the primary animus behind the
ordinance is the curtailment of sexual behavior. The City
asserts before this Court that the subject establishments
"have gained notoriety as venue of prostitution, adultery
and fornications in Manila since they provide the
necessary atmosphere for clandestine entry, presence and
exit and thus became the ideal haven for prostitutes and
thrill-seekers."68 Whether or not this depiction of a miseen-scene of vice is accurate, it cannot be denied that
legitimate sexual behavior among willing married or
consenting single adults which is constitutionally
protected69 will be curtailed as well, as it was in the City of

Man is one among many, obstinately refusing reduction to

unity. His separateness, his isolation, are indefeasible;
indeed, they are so fundamental that they are the basis on
which his civic obligations are built. He cannot abandon
the consequences of his isolation, which are, broadly
speaking, that his experience is private, and the will built
out of that experience personal to himself. If he surrenders
his will to others, he surrenders himself. If his will is set by
the will of others, he ceases to be a master of himself. I
cannot believe that a man no longer a master of himself is
in any real sense free.
Indeed, the right to privacy as a constitutional right was
recognized in Morfe, the invasion of which should be
justified by a compelling state interest. Morfe 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.70
We cannot discount other legitimate activities which the
Ordinance would proscribe or impair. There are very
legitimate uses for a wash rate or renting the room out for
more than twice a day. Entire families are known to
choose pass the time in a motel or hotel whilst the power
is momentarily out in their homes. In transit passengers
who wish to wash up and rest between trips have a
legitimate purpose for abbreviated stays in motels or
hotels. Indeed any person or groups of persons in need of
comfortable private spaces for a span of a few hours with
purposes other than having sex or using illegal drugs can
legitimately look to staying in a motel or hotel as a
convenient alternative.
E.
That the Ordinance 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.71 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.72

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.

Lacking a concurrence of these requisites, the police

measure shall be struck down as an arbitrary intrusion into
private rights. As held in Morfe v. Mutuc, the exercise of
police power is subject to judicial review when life, liberty
or property is affected.73 However, this is not in any way
meant to take it away from the vastness of State police
power whose exercise enjoys the presumption of
validity.74

We reiterate 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.

Similar to the Comelec resolution requiring newspapers to

donate advertising space to candidates, this Ordinance is a
blunt and heavy instrument.75 The Ordinance makes no
distinction between places frequented by patrons engaged
in illicit activities and patrons engaged in legitimate
actions. Thus it prevents legitimate use of places where
illicit activities are rare or even unheard of. A plain reading
of section 3 of the Ordinance shows it makes no
classification of places of lodging, thus deems them all
susceptible to illicit patronage and subject them without
exception to the unjustified prohibition.
The Court has professed its deep sentiment and
tenderness of the Ermita-Malate area, its longtime
home,76 and it is skeptical of those who wish to depict our
capital city the Pearl of the Orient as a modern-day
Sodom or Gomorrah for the Third World set. Those still
steeped in Nick Joaquin-dreams of the grandeur of Old
Manila will have to accept that Manila like all evolving big
cities, will have its problems. Urban decay is a fact of mega
cities such as Manila, and vice is a common problem
confronted by the modern metropolis wherever in the
world. The solution to such perceived decay is not to
prevent legitimate businesses from offering a legitimate
product. Rather, cities revive themselves by offering
incentives for new businesses to sprout up thus attracting
the dynamism of individuals that would bring a new
grandeur to Manila.
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

IV.

The promotion of public welfare and a sense of morality

among citizens deserves the full endorsement of the
judiciary provided that such measures do not trample
rights this Court is sworn to protect.77 The notion that the
promotion of public morality is a function of the State is as
old as Aristotle.78 The advancement of moral relativism as
a school of philosophy does not de-legitimize the role of
morality in law, even if it may foster wider debate on
which particular behavior to penalize. It is conceivable that
a society with relatively little shared morality among its
citizens could be functional so long as the pursuit of
sharply variant moral perspectives yields an adequate
accommodation of different interests.79
To be candid about it, the oft-quoted American maxim
that "you cannot legislate morality" is ultimately
illegitimate as a matter of law, since as explained by
Calabresi, that phrase is more accurately interpreted as
meaning that efforts to legislate morality will fail if they
are widely at variance with public attitudes about right
and wrong.80 Our penal laws, for one, are founded on ageold moral traditions, and as long as there are widely
accepted distinctions between right and wrong, they will
remain so oriented.
Yet the continuing progression of the human story has
seen not only the acceptance of the right-wrong
distinction, but also the advent of fundamental liberties as
the key to the enjoyment of life to the fullest. Our
democracy is distinguished from non-free societies not
with any more extensive elaboration on our part of what is
moral and immoral, but from our recognition that the
individual liberty to make the choices in our lives is innate,
and protected by the State. Independent and fair-minded
judges themselves are under a moral duty to uphold the

Constitution as the embodiment of the rule of law, by

reason of their expression of consent to do so when they
take the oath of office, and because they are entrusted by
the people to uphold the law.81
Even as the implementation of moral norms remains an
indispensable complement to governance, that
prerogative is hardly absolute, especially in the face of the
norms of due process of liberty. And while the tension may
often be left to the courts to relieve, it is possible for the
government to avoid the constitutional conflict by
employing more judicious, less drastic means to promote
morality.
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.

CHICO-NAZARIO, J.:

Before this Court is a Petition for Review

on Certiorari,[1] under Rule 45 of the Revised Rules of Court,
filed by petitioner Office of the Solicitor General (OSG),
seeking

the

reversal

and

Decision[2] dated 25 January 2007

setting

aside

of

the

of the Court of Appeals in

CA-G.R. CV No. 76298, which affirmed in toto the Joint

Decision[3] dated 29 May 2002 of the Regional Trial Court
(RTC) of Makati City, Branch 138, in Civil Cases No. 00-1208
and No. 00-1210; and (2) the Resolution[4] dated 14 March
2007 of the appellate court in the same case which denied
the Motion for Reconsideration of the OSG. The RTC
adjudged that respondents Ayala Land Incorporated
(Ayala Land), Robinsons Land Corporation (Robinsons),

SO ORDERED.

Shangri-la Plaza Corporation (Shangri-la), and SM Prime

Holdings, Inc. (SM Prime) could not be obliged to provide

DANTE O. TINGA
Associate Justice

free parking spaces in their malls to their patrons and the

general public.
Respondents Ayala Land, Robinsons, and Shangrila maintain and operate shopping malls in various locations
in Metro Manila. Respondent SM Prime constructs,
THIRD DIVISION

operates, and leases out commercial buildings and other

structures, among which, are SM City, Manila; SM

THE OFFICE OF THE

SOLICITOR GENERAL,
Petitioner,

- versus -

AYALA
LAND
INCORPORATED,
ROBINSONS
LAND
CORPORATION,
SHANGRI-LA
PLAZA
CORPORATION and SM
PRIME HOLDINGS, INC.,
Respondents.

G.R. No. 177056

Present:
YNARESSANTIAGO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

Centerpoint,

Sta.

Mesa,

Manila;

SM

City,

North

Avenue, Quezon City; and SM Southmall, Las Pias.

The shopping malls operated or leased out by
respondents have parking facilities for all kinds of motor
vehicles, either by way of parking spaces inside the mall
buildings or in separate buildings and/or adjacent lots that
are

solely

devoted

for

use

as

parking

spaces. Respondents Ayala Land, Robinsons, and SM Prime

Promulgated:

September 18, 2009

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

spent for the construction of their own parking

facilities. Respondent Shangri-la is renting its parking
facilities, consisting of land and building specifically used as
parking spaces, which were constructed for the lessors
account.
Respondents expend for the maintenance and
administration of their respective parking facilities. They
provide security personnel to protect the vehicles parked in

their parking facilities and maintain order within the area. In

In view of the foregoing, the
Committees find that the collection of
persons making use of their parking facilities, regardless of
parking fees by shopping malls is
contrary to the National Building Code
whether said persons are mall patrons or not:
and is therefor [sic] illegal. While it is
true that the Code merely requires
Respondent
Parking Fees
malls to provide parking spaces,
without specifying whether it is free or
Ayala Land
On weekdays, P25.00 for the first four hours andP10.00 for every
not, both Committees believe that the
succeeding hour; on weekends, flat rate of P25.00 per day
reasonable and logical interpretation of
the Code is that the parking spaces are
Robinsons
P20.00 for the first three hours and P10.00 for every succeeding
for free. This interpretation is not only
hour
reasonable and logical but finds
support in the actual practice in other
Shangri-la
Flat rate of P30.00 per day
countries like the United States of
SM Prime
P10.00 to P20.00 (depending on whether the parking space is
America where parking spaces owned
outdoors or indoors) for the first three hours and 59 minutes,
and operated by mall owners are free of
and P10.00 for every succeeding hour or fraction thereof
charge.
turn, they collect the following parking fees from the

The parking tickets or cards issued by respondents to

vehicle owners contain the stipulation that respondents
shall not be responsible for any loss or damage to the
vehicles parked in respondents parking facilities.
In 1999, the Senate Committees on Trade and
Commerce and on Justice and Human Rights conducted a
joint investigation for the following purposes: (1) to inquire
into the legality of the prevalent practice of shopping malls
of charging parking fees; (2) assuming arguendo that the
collection of parking fees was legally authorized, to find out
the basis and reasonableness of the parking rates charged
by shopping malls; and (3) to determine the legality of the
policy of shopping malls of denying liability in cases of theft,

Figuratively speaking, the

Code has expropriated the land for
parking something similar to the
subdivision
law
which
require
developers to devote so much of the
land area for parks.
Moreover, Article II of R.A.
No. 9734 (Consumer Act of
the Philippines) provides that it is the
policy of the State to protect the
interest of the consumers, promote the
general welfare and establish standards
of conduct for business and
industry. Obviously, a contrary
interpretation (i.e., justifying the
collection of parking fees) would be
going against the declared policy of R.A.
7394.

robbery, or carnapping, by invoking the waiver clause at the

back of the parking tickets. Said Senate Committees invited
the top executives of respondents, who operate the major
malls in the country; the officials from the Department of
Trade and Industry (DTI), Department of Public Works and
Highways (DPWH), Metro Manila Development Authority
(MMDA), and other local government officials; and the
Philippine Motorists Association (PMA) as representative of
the consumers group.
After three public hearings held on 30 September,
3 November, and 1 December 1999, the afore-mentioned
Senate Committees jointly issued Senate Committee Report
No. 225[5] on 2 May 2000, in which they concluded:

Section 201 of the National

Building Code gives the responsibility
for the administration and enforcement
of the provisions of the Code, including
the imposition of penalties for
administrative violations thereof to the
Secretary of Public Works. This set up,
however, is not being carried out in
reality.
In the position paper
submitted by the Metropolitan Manila
Development Authority (MMDA), its
chairman, Jejomar C. Binay, accurately
pointed out that the Secretary of the
DPWH is responsible for the
implementation/enforcement of the
National Building Code. After the

enactment of the Local Government

Code of 1991, the local government
units (LGUs) were tasked to discharge
the regulatory powers of the
DPWH. Hence, in the local level, the
Building Officials enforce all rules/
regulations formulated by the DPWH
relative to all building plans,
specifications and designs including
parking space requirements. There is,
however,
no
single
national
department or agency directly tasked
to supervise the enforcement of the
provisions of the Code on parking,
notwithstanding the national character
of the law.[6]

DPWH,
should
be
empowered to regulate and
supervise the construction
and maintenance of parking
establishments.
3. Finally, Congress should amend and
update the National Building
Code to expressly prohibit
shopping
malls
from
collecting parking fees by at
the same time, prohibit them
from invoking the waiver of
liability.[7]

Respondent SM Prime thereafter received

Senate Committee Report No. 225, thus,
contained the following recommendations:
In light of the foregoing, the
Committees on Trade and Commerce
and Justice and Human Rights hereby
recommend the following:

information that, pursuant to Senate Committee Report

No. 225, the DPWH Secretary and the local building officials
of Manila, Quezon City, and Las Pias intended to institute,
through the OSG, an action to enjoin respondent SM Prime
and similar establishments from collecting parking fees, and
to impose upon said establishments penal sanctions under
Presidential Decree No. 1096, otherwise known as the

1. The Office of the Solicitor General

should institute the necessary
action to enjoin the collection
of parking fees as well as to
enforce the penal sanction
provisions of the National
Building Code. The Office of
the Solicitor General should
likewise study how refund
can be exacted from mall
owners who continue to
collect parking fees.
2. The Department of Trade and
Industry pursuant to the
provisions of R.A. No. 7394,
otherwise known as the
Consumer
Act
of
the
Philippines
should
enforce the provisions of the
Code
relative
to
parking. Towards this end,
the DTI should formulate the
necessary
implementing
rules and regulations on
parking in shopping malls,
with prior consultations with
the local government units
where
these
are
located. Furthermore, the
DTI, in coordination with the

National Building Code of the Philippines (National Building

Code), and its Implementing Rules and Regulations
(IRR). With the threatened action against it, respondent SM
Prime filed, on 3 October 2000, a Petition for Declaratory
Relief[8] under Rule 63 of the Revised Rules of Court, against
the DPWH Secretary and local building officials of Manila,
Quezon City, and Las Pias. Said Petition was docketed as
Civil Case No. 00-1208 and assigned to the RTC of Makati
City, Branch 138, presided over by Judge Sixto Marella, Jr.
(Judge Marella). In its Petition, respondent SM Prime
prayed for judgment:
a) Declaring Rule XIX of the
Implementing Rules and Regulations of
the National Building Code as ultra
vires, hence, unconstitutional and void;
b)
Declaring
[herein
respondent SM Prime]s clear legal right
to lease parking spaces appurtenant to
its department stores, malls, shopping
centers and other commercial
establishments; and
c) Declaring the National
Building Code of the Philippines
Implementing Rules and Regulations as

10

ineffective, not having been published

once a week for three (3) consecutive
weeks in a newspaper of general
circulation, as prescribed by Section
211 of Presidential Decree No. 1096.

institute the present proceedings and

relative
thereto
whether
the
controversy in the collection of parking
fees by mall owners is a matter of public
welfare.

[Respondent SM Prime]
further prays for such other reliefs as
may be deemed just and equitable
under the premises.[9]

2.

Whether
declaratory relief is
proper.

3.
Whether
respondent Ayala Land, Robinsons,
Shangri-La and SM Prime are obligated
to provide parking spaces in their malls
for the use of their patrons or the public
in general, free of charge.

The very next day, 4 October 2000, the OSG filed

a Petition for Declaratory Relief and Injunction (with Prayer
for Temporary Restraining Order and Writ of Preliminary
Injunction)[10] against respondents. This Petition was

4.
Entitlement of the
parties of [sic] award of damages.[13]

docketed as Civil Case No. 00-1210 and raffled to the RTC of

Makati, Branch 135, presided over by Judge Francisco B.
Ibay (Judge Ibay). Petitioner prayed that the RTC:
1. After summary hearing, a
temporary restraining order and a writ
of preliminary injunction be issued
restraining respondents from collecting
parking fees from their customers; and
2. After hearing, judgment be
rendered declaring that the practice of
respondents in charging parking fees is
violative of the National Building Code
and its Implementing Rules and
Regulations and is therefore invalid, and
making permanent any injunctive writ
issued in this case.
Other reliefs just and
equitable under the premises are
likewise prayed for.[11]

On 23 October 2000, Judge Ibay of the RTC of

Makati City, Branch 135, issued an Order consolidating Civil
Case No. 00-1210 with Civil Case No. 00-1208 pending
before Judge Marella of RTC of Makati, Branch 138.
As a result of the pre-trial conference held on the
morning of 8 August 2001, the RTC issued a Pre-Trial
Order[12] of even date which limited the issues to be
resolved in Civil Cases No. 00-1208 and No. 00-1210 to the
following:
1. Capacity of the plaintiff
[OSG] in Civil Case No. 00-1210 to

On 29 May 2002, the RTC rendered its Joint

Decision in Civil Cases No. 00-1208 and No. 00-1210.
The

RTC

resolved

the

first

two

issues

affirmatively. It ruled that the OSG can initiate Civil Case No.
00-1210 under Presidential Decree No. 478 and the
Administrative Code of 1987.[14] It also found that all the
requisites for an action for declaratory relief were present,
to wit:
The requisites for an action for
declaratory relief are: (a) there is a
justiciable controversy; (b) the
controversy is between persons whose
interests are adverse; (c) the party
seeking the relief has a legal interest in
the controversy; and (d) the issue
involved
is
ripe
for
judicial
determination.
SM, the petitioner in Civil
Case No. 001-1208 [sic] is a mall
operator who stands to be affected
directly by the position taken by the
government officials sued namely the
Secretary of Public Highways and the
Building Officials of the local
government units where it operates
shopping malls. The OSG on the other
hand acts on a matter of public interest
and has taken a position adverse to that
of the mall owners whom it sued. The
construction of new and bigger malls
has been announced, a matter which

11

the Court can take judicial notice and

the unsettled issue of whether mall
operators should provide parking
facilities, free of charge needs to be
resolved.[15]

As to the third and most contentious issue, the

RTC pronounced that:
The Building Code, which is
the enabling law and the Implementing
Rules and Regulations do not impose
that parking spaces shall be provided by
the mall owners free of charge.Absent
such directive[,] Ayala Land, Robinsons,
Shangri-la and SM [Prime] are under no
obligation to provide them for free.
Article 1158 of the Civil Code is clear:
Obligatio
ns derived from law
are
not
presumed.
Only
those
expressly
determined in this
Code or in special
laws
are
demandable and
shall be regulated
by the precepts of
the law which
establishes them;
and as to what has
not been foreseen,
by the provisions of
this Book (1090).[]
xxxx
The provision on ratios of
parking slots to several variables, like
shopping floor area or customer area
found in Rule XIX of the Implementing
Rules and Regulations cannot be
construed as a directive to provide free
parking spaces, because the enabling
law, the Building Code does not so
provide. x x x.
To compel Ayala Land,
Robinsons, Shangri-La and SM [Prime]
to provide parking spaces for free can
be considered as an unlawful taking of
property
right
without
just
compensation.

Parking spaces in shopping

malls are privately owned and for their
use, the mall operators collect fees. The
legal relationship could be either lease
or deposit. In either case[,] the mall
owners have the right to collect money
which translates into income. Should
parking spaces be made free, this right
of mall owners shall be gone. This,
without just compensation. Further,
loss of effective control over their
property will ensue which is frowned
upon by law.
The presence of parking
spaces can be viewed in another
light. They can be looked at as
necessary facilities to entice the public
to increase patronage of their malls
because without parking spaces, going
to
their
malls
will
be
inconvenient. These are[,] however[,]
business considerations which mall
operators will have to decide for
themselves. They are not sufficient to
justify a legal conclusion, as the OSG
would like the Court to adopt that it is
the obligation of the mall owners to
provide parking spaces for free.[16]

The RTC then held that there was no sufficient

evidence to justify any award for damages.
The RTC finally decreed in its 29 May 2002 Joint Decision in
Civil Cases No. 00-1208 and No. 00-1210 that:
FOR THE REASONS GIVEN, the
Court declares that Ayala Land[,] Inc.,
Robinsons Land Corporation, Shangri-la
Plaza Corporation and SM Prime
Holdings[,] Inc. are not obligated to
provide parking spaces in their malls for
the use of their patrons or public in
general, free of charge.
All counterclaims in Civil Case
No. 00-1210 are dismissed.
No pronouncement as to
costs.[17]

CA-G.R. CV No. 76298 involved the separate appeals of the

OSG[18] and respondent SM Prime[19] filed with the Court of

12

Appeals. The sole assignment of error of the OSG in its

whether or not the National Building Code and its

Appellants Brief was:

implementing rules require shopping mall operators to

provide parking facilities to the public for free was evidently

THE TRIAL COURT ERRED IN HOLDING

THAT THE NATIONAL BUILDING CODE
DID NOT INTEND MALL PARKING
SPACES TO BE FREE OF CHARGE[;][20]

a question of law. Even so, since CA-G.R. CV No. 76298 also

included the appeal of respondent SM Prime, which raised
issues worthy of consideration, and in order to satisfy the
demands of substantial justice, the Court of Appeals

while the four errors assigned by respondent SM Prime in

proceeded to rule on the merits of the case.

its Appellants Brief were:

In its Decision, the Court of Appeals affirmed the capacity
I
THE TRIAL COURT ERRED IN FAILING TO
DECLARE
RULE
XIX
OF
THE
IMPLEMENTING RULES AS HAVING
BEEN ENACTED ULTRA VIRES, HENCE,
UNCONSTITUTIONAL AND VOID.
II
THE TRIAL COURT ERRED IN FAILING TO
DECLARE THE IMPLEMENTING RULES
INEFFECTIVE FOR NOT HAVING BEEN
PUBLISHED AS REQUIRED BY LAW.
III

of the OSG to initiate Civil Case No. 00-1210 before the RTC
as the legal representative of the government,[22] and as the
one deputized by the Senate of the Republic of
the Philippines through Senate Committee Report No. 225.
The Court of Appeals rejected the contention of
respondent SM Prime that the OSG failed to exhaust
administrative remedies. The appellate court explained that
an administrative review is not a condition precedent to
judicial relief where the question in dispute is purely a legal
one, and nothing of an administrative nature is to be or can
be done.

THE TRIAL COURT ERRED IN FAILING TO

DISMISS THE OSGS PETITION FOR
DECLARATORY
RELIEF
AND
INJUNCTION FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES.

the validity of the IRR of the National Building Code, as such

IV

Cases No. 00-1208 and No. 00-1210. Issues cannot be raised

THE TRIAL COURT ERRED IN FAILING TO

DECLARE THAT THE OSG HAS NO LEGAL
CAPACITY TO SUE AND/OR THAT IT IS
NOT A REAL PARTY-IN-INTEREST IN THE
INSTANT CASE.[21]

The Court of Appeals likewise refused to rule on

issue was not among those the parties had agreed to be
resolved by the RTC during the pre-trial conference for Civil
for the first time on appeal. Furthermore, the appellate
court found that the controversy could be settled on other
grounds, without touching on the issue of the validity of the
IRR. It referred to the settled rule that courts should refrain
from passing upon the constitutionality of a law or
implementing rules, because of the principle that bars

Respondent Robinsons filed a Motion to Dismiss Appeal of

judicial inquiry into a constitutional question, unless the

the OSG on the ground that the lone issue raised therein

resolution thereof is indispensable to the determination of

involved a pure question of law, not reviewable by the

the case.

Court of Appeals.
Lastly, the Court of Appeals declared that Section
The Court of Appeals promulgated its Decision in CA-G.R.

803 of the National Building Code and Rule XIX of the IRR

CV No. 76298 on 25 January 2007. The appellate court

were clear and needed no further construction. Said

agreed with respondent Robinsons that the appeal of the

provisions were only intended to control the occupancy or

OSG should suffer the fate of dismissal, since the issue on

congestion of areas and structures. In the absence of any

13

express and clear provision of law, respondents could not

be obliged and expected to provide parking slots free of

regulations
Secretary.

promulgated

by

the

charge.
In connection therewith, Rule XIX of the old
The fallo of the 25 January 2007 Decision of the

IRR,[25] provides:

Court of Appeals reads:

RULE XIX PARKING AND LOADING
SPACE REQUIREMENTS

WHEREFORE,
premises
considered, the instant appeals
are DENIED. Accordingly, appealed
Decision is hereby AFFIRMED in toto.[23]

In its Resolution issued on 14 March 2007, the Court of

Appeals denied the Motion for Reconsideration of the OSG,
finding that the grounds relied upon by the latter had
already been carefully considered, evaluated, and passed
upon by the appellate court, and there was no strong and
cogent reason to modify much less reverse the assailed
judgment.
The OSG now comes before this Court, via the
instant Petition for Review, with a single assignment of
error:
THE COURT OF APPEALS SERIOUSLY
ERRED IN AFFIRMING THE RULING OF
THE
LOWER
COURT
THAT
RESPONDENTS ARE NOT OBLIGED TO
PROVIDE FREE PARKING SPACES TO
THEIR CUSTOMERS OR THE PUBLIC.[24]

The OSG argues that respondents are mandated

to provide free parking by Section 803 of the National
Building Code and Rule XIX of the IRR.
According

to

Section

803

the National Building Code:

SECTION 803. Percentage of
Site Occupancy
(a) Maximum site occupancy
shall be governed by the use, type of
construction, and height of the building
and the use, area, nature, and location
of the site; and subject to the provisions
of the local zoning requirements and in
accordance with the rules and

of

Pursuant to Section 803 of the

National Building Code (PD 1096)
providing for maximum site occupancy,
the following provisions on parking and
loading space requirements shall be
observed:
1. The parking space ratings
listed below are
minimum off-street
requirements for
specific
uses/occupancies
for
buildings/structure
s:
1.1 The size of an
average
automobil
e parking
slot shall
be
computed
as
2.4
meters by
5.00
meters for
perpendic
ular
or
diagonal
parking,
2.00
meters by
6.00
meters for
parallel
parking. A
truck or
bus
parking/lo
ading slot
shall be
computed
at
a
minimum
of
3.60
meters by

14

12.00
meters. T
he parking
slot shall
be drawn
to scale
and the
total
number of
which
shall be
indicated
on
the
plans and
specified
whether
or
not
parking
accommo
dations,
are
attendant
managed.
(See
Section 2
for
computati
on
of
parking
requireme
nts).

purpose of this Code to provide for all

buildings and structures, a framework
of
minimum
standards
and
requirements to regulate and control
their location, site, design, quality of
materials,
construction,
use,
occupancy, and maintenance.

The requirement of free-of-charge parking, the OSG argues,

greatly contributes to the aim of safeguarding life, health,
property, and public welfare, consistent with the principles
of

sound

environmental

management

and

control. Adequate parking spaces would contribute greatly

to alleviating traffic congestion when complemented by
quick and easy access thereto because of free-charge
parking. Moreover, the power to regulate and control the
use, occupancy, and maintenance of buildings and
structures carries with it the power to impose fees and,
conversely, to control -- partially or, as in this case,
absolutely -- the imposition of such fees.
The Court finds no merit in the present Petition.
The explicit directive of the afore-quoted
statutory and regulatory provisions, garnered from a plain
reading thereof, is that respondents, as operators/lessors

xxxx

of neighborhood shopping centers, should provide parking

1.7 Neighborhood
shopping
center 1
slot/100
sq. m. of
shopping
floor area

and loading spaces, in accordance with the minimum ratio

of one slot per 100 square meters of shopping floor
area.There is nothing therein pertaining to the collection (or
non-collection) of parking fees by respondents. In fact, the
term parking fees cannot even be found at all in the entire
National Building Code and its IRR.

The OSG avers that the aforequoted provisions

should be read together with Section 102 of the National
Building Code, which declares:
SECTION 102. Declaration of
Policy
It is hereby declared to be the
policy of the State to safeguard life,
health, property, and public welfare,
consistent with the principles of sound
environmental
management
and
control; and to this end, make it the

Statutory construction has it that if a statute is

clear and unequivocal, it must be given its literal meaning
and applied without any attempt at interpretation.[26] Since
Section 803 of the National Building Code and Rule XIX of its
IRR do not mention parking fees, then simply, said
provisions do not regulate the collection of the same. The
RTC and the Court of Appeals correctly applied Article 1158
of the New Civil Code, which states:

derived

Art.
1158.
from
law

Obligations
are
not

15

presumed. Only those expressly

determined in this Code or in special
laws are demandable, and shall be
regulated by the precepts of the law
which establishes them; and as to what
has not been foreseen, by the
provisions of this Book. (Emphasis
ours.)

charge. If Rule XIX is not covered by the enabling law, then

it cannot be added to or included in the implementing
rules.The rule-making power of administrative agencies
must be confined to details for regulating the mode or
proceedings to carry into effect the law as it has been
enacted, and it cannot be extended to amend or expand the
statutory requirements or to embrace matters not covered

Hence, in order to bring the matter of parking

fees within the ambit of the National Building Code and its
IRR, the OSG had to resort to specious and feeble

by the statute. Administrative regulations must always be

in harmony with the provisions of the law because any
resulting discrepancy between the two will always be
resolved in favor of the basic law.[27]

argumentation, in which the Court cannot concur.

From the RTC all the way to this Court, the OSG

The OSG cannot rely on Section 102 of the

National Building Code to expand the coverage of Section
803 of the same Code and Rule XIX of the IRR, so as to
include the regulation of parking fees. The OSG limits its
citation to the first part of Section 102 of the National
Building Code declaring the policy of the State to safeguard
life, health, property, and public welfare, consistent with
the principles of sound environmental management and
control; but totally ignores the second part of said
provision, which reads, and to this end, make it the purpose

repeatedly referred to Republic v. Gonzales[28] and City of

Ozamis v. Lumapas[29] to support its position that the State
has the power to regulate parking spaces to promote the
health, safety, and welfare of the public; and it is by virtue
of said power that respondents may be required to provide
free parking facilities. The OSG, though, failed to consider
the substantial differences in the factual and legal
backgrounds of these two cases from those of the Petition
at bar.

of this Code to provide for all buildings and structures, a

framework of minimum standards and requirements to
regulate and control their location, site, design, quality of
materials,

construction,

use,

occupancy,

and

maintenance. While the first part of Section 102 of the

National Building Code lays down the State policy, it is the
second part thereof that explains how said policy shall be
carried out in the Code. Section 102 of the National Building
Code is not an all-encompassing grant of regulatory power
to the DPWH Secretary and local building officials in the
name of life, health, property, and public welfare. On the
contrary, it limits the regulatory power of said officials to
ensuring that the minimum standards and requirements for
all buildings and structures, as set forth in the National
Building Code, are complied with.

In Republic, the Municipality of Malabon sought

to eject the occupants of two parcels of land of the public
domain to give way to a road-widening project. It was in this
context that the Court pronounced:
Indiscriminate parking along F. Sevilla
Boulevard
and
other
main
thoroughfares was prevalent; this, of
course, caused the build up of traffic in
the surrounding area to the great
discomfort and inconvenience of the
public who use the streets. Traffic
congestion constitutes a threat to the
health, welfare, safety and convenience
of the people and it can only be
substantially relieved by widening
streets and providing adequate parking
areas.

Consequently, the OSG cannot claim that in

addition to fixing the minimum requirements for parking
spaces for buildings, Rule XIX of the IRR also mandates that
such parking spaces be provided by building owners free of

The Court, in City of Ozamis, declared that the

City had been clothed with full power to control and
regulate its streets for the purpose of promoting public
health, safety and welfare. The City can regulate the time,

16

have been constrained to put up

carparks in response to public necessity
where private enterprise had failed to
keep up with the growing public
demand. American courts have upheld
the right of municipal governments to
construct off-street parking facilities as
clearly redounding to the public
benefit.[30]

place, and manner of parking in the streets and public

places; and charge minimal fees for the street parking to
cover the expenses for supervision, inspection and control,
to ensure the smooth flow of traffic in the environs of the
public market, and for the safety and convenience of the
public.
Republic and City of Ozamis involved parking in
the local streets; in contrast, the present case deals with

In City of Ozamis, the Court authorized the

privately owned parking facilities available for use by the

collection by the City of minimal fees for the parking of

general public. In Republic and City of Ozamis, the

vehicles along the streets: so why then should the Court

concerned local governments regulated parking pursuant

now preclude respondents from collecting from the public

to their power to control and regulate their streets; in the

a fee for the use of the mall parking facilities? Undoubtedly,

instant case, the DPWH Secretary and local building officials

respondents also incur expenses in the maintenance and

regulate parking pursuant to their authority to ensure

operation of the mall parking facilities, such as electric

compliance with the minimum standards and requirements

consumption, compensation for parking attendants and

under the National Building Code and its IRR. With the

security, and upkeep of the physical structures.

difference in subject matters and the bases for the

regulatory powers being invoked, Republic and City
of Ozamis do not constitute precedents for this case.

It is not sufficient for the OSG to claim that the

power to regulate and control the use, occupancy, and
maintenance of buildings and structures carries with it the

Indeed, Republic and City of Ozamis both contain

power to impose fees and, conversely, to control, partially

pronouncements that weaken the position of the OSG in

or, as in this case, absolutely, the imposition of such

the case at bar. In Republic, the Court, instead of placing the

fees. Firstly, the fees within the power of regulatory

burden on private persons to provide parking facilities to

agencies to impose areregulatory fees. It has been settled

the general public, mentioned the trend in other

law in this jurisdiction that this broad and all-compassing

jurisdictions

governments

governmental competence to restrict rights of liberty and

themselves took the initiative to make more parking spaces

property carries with it the undeniable power to collect a

available so as to alleviate the traffic problems, thus:

regulatory fee. It looks to the enactment of specific

wherein

the

municipal

measures that govern the relations not only as between

Under
the
Land
Transportation and Traffic Code,
parking in designated areas along public
streets or highways is allowed which
clearly indicates that provision for
parking spaces serves a useful purpose.
In other jurisdictions where traffic is at
least as voluminous as here, the
provision by municipal governments of
parking space is not limited to parking
along public streets or highways. There
has been a marked trend to build offstreet parking facilities with the view to
removing parked cars from the streets.
While the provision of off-street
parking facilities or carparks has been
commonly undertaken by private
enterprise, municipal governments

individuals but also as between private parties and the

political society.[31] True, if the regulatory agencies have the
power to impose regulatory fees, then conversely, they also
have the power to remove the same.Even so, it is worthy to
note that the present case does not involve the imposition
by the DPWH Secretary and local building officials of
regulatory fees upon respondents; but the collection by
respondents of parking fees from persons who use the mall
parking facilities. Secondly, assuming arguendo that the
DPWH Secretary and local building officials do have
regulatory powers over the collection of parking fees for the
use of privately owned parking facilities, they cannot allow
or

prohibit

such

collection

arbitrarily

or

17

whimsically. Whether allowing or prohibiting the collection

The Court is unconvinced. The National Building

of such parking fees, the action of the DPWH Secretary and

Code regulates buildings, by setting the minimum

local building officials must pass the test of classic

specifications and requirements for the same. It does not

reasonableness and propriety of the measures or means in

concern itself with traffic congestion in areas surrounding

the promotion of the ends sought to be

accomplished.[32]

the building. It is already a stretch to say that the National

Building Code and its IRR also intend to solve the problem

Keeping in mind the aforementioned test of

of traffic congestion around the buildings so as to ensure

reasonableness and propriety of measures or means, the

that the said buildings shall have adequate lighting and

Court notes that Section 803 of the National Building Code

ventilation. Moreover, the Court cannot simply assume, as

falls under Chapter 8 on Light and Ventilation. Evidently,

the OSG has apparently done, that the traffic congestion in

the Code deems it necessary to regulate site occupancy to

areas around the malls is due to the fact that respondents

ensure that there is proper lighting and ventilation in every

charge for their parking facilities, thus, forcing vehicle

building.Pursuant thereto, Rule XIX of the IRR requires that

owners to just park in the streets. The Court notes that

a building, depending on its specific use and/or floor area,

despite the fees charged by respondents, vehicle owners

should provide a minimum number of parking spaces. The

still use the mall parking facilities, which are even fully

Court, however, fails to see the connection between

occupied on some days.Vehicle owners may be parking in

regulating site occupancy to ensure proper light and

the streets only because there are not enough parking

ventilation in every building vis--vis regulating the collection

spaces in the malls, and not because they are deterred by

by building owners of fees for the use of their parking

the parking fees charged by respondents. Free parking

spaces. Contrary to the averment of the OSG, the former

spaces at the malls may even have the opposite effect from

does not necessarily include or imply the latter. It totally

what the OSG envisioned: more people may be encouraged

escapes this Court how lighting and ventilation conditions

by the free parking to bring their own vehicles, instead of

at the malls could be affected by the fact that parking

taking public transport, to the malls; as a result, the parking

facilities thereat are free or paid for.

facilities would become full sooner, leaving more vehicles

without parking spaces in the malls and parked in the

The OSG attempts to provide the missing link by

streets instead, causing even more traffic congestion.

arguing that:
Without using the term outright, the OSG is
Under Section 803 of the
National Building Code, complimentary
parking spaces are required to enhance
light and ventilation, that is, to avoid
traffic congestion in areas surrounding
the building, which certainly affects the
ventilation within the building itself,
which otherwise, the annexed parking
spaces would have served. Free-ofcharge parking avoids traffic congestion
by ensuring quick and easy access of
legitimate shoppers to off-street
parking spaces annexed to the malls,
and thereby removing the vehicles of
these legitimate shoppers off the busy
streets
near
the
commercial
establishments.[33]

actually invoking police power to justify the regulation by

the State, through the DPWH Secretary and local building
officials, of privately owned parking facilities, including the
collection by the owners/operators of such facilities of
parking fees from the public for the use thereof. The Court
finds, however, that in totally prohibiting respondents from
collecting parking fees from the public for the use of the
mall parking facilities, the State would be acting beyond the
bounds of police power.
Police power is the power of promoting the
public welfare by restraining and regulating the use of
liberty and property. It is usually exerted in order to merely
regulate the use and enjoyment of the property of the
owner. The power to regulate, however, does not include

18

the power to prohibit. A fortiori, the power to regulate does

spaces, but is also mandating that they give the public

not include the power to confiscate. Police power does not

access to said parking spaces for free. Such is already an

involve the taking or confiscation of property, with the

excessive

exception of a few cases where there is a necessity to

respondents. Not only are they being deprived of the right

confiscate private property in order to destroy it for the

to use a portion of their properties as they wish, they are

purpose of protecting peace and order and of promoting

further prohibited from profiting from its use or even just

the general welfare; for instance, the confiscation of an

recovering therefrom the expenses for the maintenance

illegally possessed article, such as opium and

firearms. [34]

intrusion

into

the

property

rights

of

and operation of the required parking facilities.

When there is a taking or confiscation of private

The ruling of this Court in City Government of

property for public use, the State is no longer exercising

Quezon City v. Judge Ericta[38] is edifying. Therein, the City

police power, but another of its inherent powers, namely,

Government of Quezon City passed an ordinance obliging

eminent domain. Eminent domain enables the State to

private cemeteries within its jurisdiction to set aside at least

forcibly acquire private lands intended for public use upon

six percent of their total area for charity, that is, for burial

payment of just compensation to the owner.[35]

grounds of deceased paupers. According to the Court, the

ordinance in question was null and void, for it authorized

Normally, of course, the power of eminent domain

the taking of private property without just compensation:

results in the taking or appropriation of title to, and

possession of, the expropriated property; but no cogent
reason appears why the said power may not be availed of
only to impose a burden upon the owner of condemned
property, without loss of title and possession. [36] It is a
settled rule that neither acquisition of title nor total
destruction of value is essential to taking. It is usually in
cases where title remains with the private owner that
inquiry should be made to determine whether the
impairment of a property is merely regulated or amounts to
a compensable taking. A regulation that deprives any
person of the profitable use of his property constitutes a
taking and entitles him to compensation, unless the
invasion of rights is so slight as to permit the regulation to
be justified under the police power. Similarly, a police
regulation that unreasonably restricts the right to use
business property for business purposes amounts to a
taking of private property, and the owner may recover
therefor.[37]
Although in the present case, title to and/or
possession of the parking facilities remain/s with
respondents, the prohibition against their collection of
parking fees from the public, for the use of said facilities, is
already tantamount to a taking or confiscation of their
properties. The State is not only requiring that respondents
devote a portion of the latters properties for use as parking

There is no reasonable
relation between the setting aside of at
least six (6) percent of the total area of
all private cemeteries for charity burial
grounds of deceased paupers and the
promotion of' health, morals, good
order, safety, or the general welfare of
the people. The ordinance is actually a
taking without compensation of a
certain area from a private cemetery to
benefit paupers who are charges of the
municipal corporation. Instead of'
building or maintaining a public
cemetery for this purpose, the city
passes the burden to private
cemeteries.
'The expropriation without
compensation of a portion of private
cemeteries is not covered by Section
12(t) of Republic Act 537, the Revised
Charter of Quezon City which
empowers the city council to prohibit
the burial of the dead within the center
of population of the city and to provide
for their burial in a proper place subject
to the provisions of general law
regulating
burial
grounds
and
cemeteries.
When
the
Local
Government Code, Batas Pambansa
Blg. 337 provides in Section 177(q) that
a sangguniang panlungsod may
"provide for the burial of the dead in
such place and in such manner as

19

prescribed by law or ordinance" it

simply authorizes the city to provide its
own city owned land or to buy or
expropriate private properties to
construct public cemeteries. This has
been the law, and practise in the past.
It continues to the present.
Expropriation,
however,
requires
payment of just compensation. The
questioned ordinance is different from
laws and regulations requiring owners
of subdivisions to set aside certain
areas for streets, parks, playgrounds,
and other public facilities from the land
they sell to buyers of subdivision lots.
The necessities of public safety, health,
and convenience are very clear from
said requirements which are intended
to insure the development of
communities with salubrious and
wholesome
environments.
The
beneficiaries of the regulation, in turn,
are made to pay by the subdivision
developer when individual lots are sold
to homeowners.

Trial Court of Makati City, Branch 138, in Civil Cases No. 001208 and No. 00-1210 are hereby AFFIRMED. No costs.
SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

THIRD DIVISION
CHEVRON PHILIPPINES, INC.
(Formerly CALTEX
PHILIPPINES, INC.),
Petitioner,

Present:
CARPIO MORALES, J.,
Chairperson,
PERALTA,*
BERSAMIN,
VILLARAMA, JR., and
SERENO, JJ.

In conclusion, the total prohibition against the collection by

respondents of parking fees from persons who use the mall

G.R. No. 173863

- versus -

parking facilities has no basis in the National Building Code

or its IRR. The State also cannot impose the same
prohibition by generally invoking police power, since said
prohibition amounts to a taking of respondents property
without payment of just compensation.
Given the foregoing, the Court finds no more need to
address the issue persistently raised by respondent SM
Prime concerning the unconstitutionality of Rule XIX of the
IRR. In addition, the said issue was not among those that
the parties, during the pre-trial conference for Civil Cases
No. 12-08 and No. 00-1210, agreed to submit for resolution

BASES CONVERSION
Promulgated:
DEVELOPMENT
AUTHORITY and CLARK
September 15, 2010
DEVELOPMENT
CORPORATION,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

of the RTC. It is likewise axiomatic that the constitutionality

of a law, a regulation, an ordinance or an act will not be
resolved by courts if the controversy can be, as in this case
it has been, settled on other grounds.[39]

DECISION
VILLARAMA, JR., J.:

WHEREFORE, the instant Petition for Review

This petition for review on certiorari assails the

on Certiorari is hereby DENIED. The Decision dated 25

Decision[1] dated November 30, 2005 of the Court of Appeals

January 2007 and Resolution dated 14 March 2007 of the

(CA) in CA-G.R. SP No. 87117, which affirmed the

Court of Appeals in CA-G.R. CV No. 76298, affirming in

toto the Joint Decision dated 29 May 2002 of the Regional

Resolution[2]

dated

August

2,

2004

and

the

20

Order[3] dated September 30, 2004 of the Office of the

President in O.P. Case No. 04-D-170.

The above policy guidelines were implemented

effective July 27, 2002. On October 1, 2002, CDC sent a
letter[6] to herein petitioner Chevron Philippines, Inc.

The facts follow.

(formerly Caltex Philippines, Inc.), a domestic corporation

which has been supplying fuel to Nanox Philippines, a

On June 28, 2002, the Board of Directors of

respondent Clark Development Corporation (CDC) issued
and approved Policy Guidelines on the Movement of
Petroleum Fuel to and from the Clark Special Economic
Zone (CSEZ)[4] which provided, among others, for the
following fees and charges:
1. Accreditation Fee

locator inside the CSEZ since 2001, informing the petitioner

that a royalty fee of P0.50 per liter shall be assessed on its
deliveries to Nanox Philippines effective August 1,
2002. Thereafter, on October 21, 2002 a Statement of
Account[7] was sent by CDC billing the petitioner for royalty
fees in the amount of P115,000.00 for its fuel sales from
Coastal depot to Nanox Philippines from August 1-31

xxxx

to September 3-21, 2002.

2. Annual Inspection Fee

Claiming that nothing in the law authorizes CDC

xxxx

to impose royalty fees or any fees based on a per unit

3. Royalty Fees
Suppliers delivering fuel from outside
sources shall be assessed the following
royalty fees:
-

Php0.50 per
liter
those
delivering
Coastal
petroleum
fuel to CSEZ
locators not
sanctioned by
CDC
Php1.00 per
liter
those
bringing-in
petroleum
fuel (except
Jet A-1) from
outside
sources

xxxx
4. Gate Pass Fee
x x x x[5]

measurement of any commodity sold within the special

economic zone, petitioner sent a letter[8] dated October 30,
2002 to the President and Chief Executive Officer of CDC,
Mr. Emmanuel Y. Angeles, to protest the assessment for
royalty fees. Petitioner nevertheless paid the said fees
under protest on November 4, 2002.

On August 18, 2003, CDC again wrote a letter[9] to

petitioner regarding the latters unsettled royalty fees
covering

the

period

2003.

Petitioner

of

December

responded

2002

to

through

July
a

letter[10] dated September 8, 2003 reiterating its continuing

objection over the assessed royalty fees and requested a
refund of the amount paid under protest on November 4,
2002. The letter also asked CDC to revoke the imposition of
such royalty fees. The request was denied by CDC in a
letter[11] dated September 29, 2003.

Petitioner elevated its protest before respondent

Bases Conversion Development Authority (BCDA) arguing

21

that the royalty fees imposed had no reasonable relation to

the probable expenses of regulation and that the
imposition on a per unit measurement of fuel sales was for
a revenue generating purpose, thus, akin to a tax. The
protest

was

however

denied

by

BCDA

in

letter[12] dated March 3, 2004.

Petitioner appealed to the Office of the President

which dismissed[13] the appeal for lack of merit on

August 2,

2004 and denied[14] petitioners motion for reconsideration

thereof on September 30, 2004.

Aggrieved, petitioner elevated the case to the CA

which likewise dismissed[15] the appeal for lack of merit
on November 30, 2005 and denied[16] the motion for
reconsideration on July 26, 2006.

The CA held that in imposing the challenged

royalty fees, respondent CDC was exercising its right to
regulate the flow of fuel into CSEZ, which is bolstered by the
fact that it possesses exclusive right to distribute fuel within
CSEZ pursuant to its Joint Venture Agreement (JVA)[17] with
Subic Bay Metropolitan Authority (SBMA) and Coastal Subic
Bay Terminal, Inc. (CSBTI) dated April 11, 1996. The
appellate court also found that royalty fees were assessed
on fuel delivered, not on the sale, by petitioner and that the

I. THE ISSUE RAISED BEFORE THE

COURT A QUO IS A QUESTION OF
SUBSTANCE NOT HERETOFORE
DETERMINED
BY
THE
HONORABLE SUPREME COURT.
II. THE RULING OF THE COURT OF
APPEALS THAT THE CDC HAS THE
POWER
TO
IMPOSE
THE
QUESTIONED ROYALTY FEES IS
CONTRARY TO LAW.
III. THE COURT OF APPEALS WAS
MANIFESTLY MISTAKEN AND
COMMITTED GRAVE ABUSE OF
DISCRETION AND A CLEAR
MISUNDERSTANDING OF FACTS
WHEN IT RULED CONTRARY TO
THE EVIDENCE THAT: (i) THE
QUESTIONED ROYALTY FEE IS
PRIMARILY FOR REGULATION;
AND (ii) ANY REVENUE EARNED
THEREFROM
IS
MERELY
INCIDENTAL TO THE PURPOSE OF
REGULATION.
IV. THE COURT OF APPEALS FAILED TO
GIVE
DUE
WEIGHT
AND
CONSIDERATION
TO
THE
EVIDENCE PRESENTED BY CPI
SUCH AS THE LETTERS COMING
FROM RESPONDENT CDC ITSELF
PROVING THAT THE QUESTIONED
ROYALTY FEES ARE IMPOSED ON
THE BASIS OF FUEL SALES (NOT
DELIVERY OF FUEL) AND NOT FOR
REGULATION BUT PURELY FOR
INCOME GENERATION, I.E. AS
PRICE OR CONSIDERATION FOR
THE RIGHT TO MARKET AND
DISTRIBUTE FUEL INSIDE THE
CSEZ.[20]

basis of such imposition was petitioners delivery receipts to

Nanox Philippines. The fact that revenue is incidentally also
obtained does not make the imposition a tax as long as the
primary purpose of such imposition is regulation.[18]

Petitioner filed a motion for reconsideration but

the CA denied the same in its Resolution[19] dated July 26,

Petitioner argues that CDC does not have any

power to impose royalty fees on sale of fuel inside the CSEZ
on the basis of purely income generating functions and its
exclusive right to market and distribute goods inside the
CSEZ. Such imposition of royalty fees for revenue generating
purposes would amount to a tax, which the respondents

2006.

have no power to impose. Petitioner stresses that the royalty

Hence, this petition raising the following grounds:

fee imposed by CDC is not regulatory in nature but a revenue

generating measure to increase its profits and to further

22

enhance its exclusive right to market and distribute fuel in

CSEZ.[21]

Petitioner would also like this Court to note that

the charge is made. If generation of

revenue is the primary purpose and
regulation is merely incidental, the
imposition is a tax; but if regulation is
the primary purpose, the fact that
revenue is incidentally raised does not
make the imposition a tax.

the fees imposed, assuming arguendo they are regulatory

in nature, are unreasonable and are grossly in excess of
regulation costs. It adds that the amount of the fees should

In the case at bar, we hold that the subject royalty

be presumed to be unreasonable and that the burden of

fee was imposed primarily for regulatory purposes, and not

proving that the fees are not unreasonable lies with the

for the generation of income or profits as petitioner

respondents.[22]

claims.The Policy Guidelines on the Movement of

Petroleum Fuel to and from the Clark Special Economic

On the part of the respondents, they argue that

the purpose of the royalty fees is to regulate the flow of fuel
to and from the CSEZ. Such being its main purpose, and
revenue (if any) just an incidental product, the imposition
cannot be considered a tax. It is their position that the
regulation is a valid exercise of police power since it is
aimed at promoting the general welfare of the public. They
claim that being the administrator of the CSEZ, CDC is
responsible for the safe distribution of fuel products inside
the CSEZ.[23]

The petition has no merit.

In distinguishing tax and regulation as a form of

police power, the determining factor is the purpose of the
implemented measure. If the purpose is primarily to raise
revenue, then it will be deemed a tax even though the
measure results in some form of regulation. On the other
hand, if the purpose is primarily to regulate, then it is
deemed a regulation and an exercise of the police power of
the state, even though incidentally, revenue is generated.
Thus, in Gerochi v. Department of Energy,[24] the Court
stated:

Zone[25] provides:
DECLARATION OF POLICY
It is hereby declared the policy of
CDC to develop and maintain the Clark
Special Economic Zone (CSEZ) as a
highly secured zone free from threats
of any kind, which could possibly
endanger the lives and properties of
locators, would-be investors, visitors,
and employees.
It is also declared the policy of CDC to
operate and manage the CSEZ as a
separate customs territory ensuring
free flow or movement of goods and
capital within, into and exported out of
the CSEZ.[26] (Emphasis supplied.)

From the foregoing, it can be gleaned that the Policy

Guidelines was issued, first and foremost, to ensure the
safety, security, and good condition of the petroleum fuel
industry within the CSEZ. The questioned royalty fees form
part of the regulatory framework to ensure free flow or
movement of petroleum fuel to and from the CSEZ. The fact
that respondents have the exclusive right to distribute and
market petroleum products within CSEZ pursuant to its JVA
with SBMA and CSBTI does not diminish the regulatory
purpose of the royalty fee for fuel products supplied by

The conservative and pivotal

distinction between these two (2)
powers rests in the purpose for which

petitioner to its client at the CSEZ.

23

As pointed out by the respondents in their Comment, from

Among those specific powers granted to CDC under Section

the time the JVA took effect up to the time CDC

4 of Presidential Decree No. 66 are:

implemented its Policy Guidelines on the Movement of

Petroleum Fuel to and from the CSEZ, suppliers/distributors
were allowed to bring in petroleum products inside CSEZ
without any charge at all. But this arrangement clearly
negates CDCs mandate under the JVA as exclusive
distributor of CSBTIs fuel products within CSEZ and
respondents ownership of the Subic-Clark Pipeline.[27] On
this score, respondents were justified in charging royalty
fees on fuel delivered by outside suppliers.

However, it was erroneous for petitioner to argue that such

exclusive right of respondent CDC to market and distribute

(a) To operate, administer

and manage the export processing zone
established in the Port of Mariveles,
Bataan, and such other export
processing zones as may be established
under this Decree; to construct,
acquire, own, lease, operate and
maintain
infrastructure
facilities,
factory building, warehouses, dams,
reservoir, water distribution, electric
light
and
power
system,
telecommunications
and
transportation, or such other facilities
and services necessary or useful in the
conduct of commerce or in the
attainment of the purposes and
objectives of this Decree;
xxxx

fuel inside CSEZ is the sole basis of the royalty fees imposed
under the Policy Guidelines. Being the administrator of
CSEZ, the responsibility of ensuring the safe, efficient and
orderly distribution of fuel products within the Zone falls on
CDC. Addressing specific concerns demanded by the nature
of goods or products involved is encompassed in the range
of services which respondent CDC is expected to provide
under the law, in pursuance of its general power

(g) To fix, assess and collect

storage charges and fees, including
rentals for the lease, use or occupancy
of
lands,
buildings,
structure,
warehouses, facilities and other
properties owned and administered by
the Authority; and to fix and collect the
fees and charges for the issuance of
permits, licenses and the rendering of
services not enumerated herein, the
provisions of law to the contrary
notwithstanding;

of supervision and control over the movement of all

supplies and equipment into the CSEZ.
Section 2 of Executive Order No. 80[28] provides:
SEC. 2. Powers and Functions of
the
Clark
Development
Corporation. The BCDA, as the
incorporator and holding company of
its Clark subsidiary, shall determine the
powers and functions of the
CDC. Pursuant to Section 15 of RA 7227,
the CDC shall have the specific powers
of the Export Processing Zone Authority
as provided for in Section 4 of
Presidential Decree No. 66 (1972) as
amended.

(h) For the due and effective

exercise of the powers conferred by law
and to the extend (sic) [extent]
requisite therefor, to exercise exclusive
jurisdiction and sole police authority
over all areas owned or administered
by the Authority. For this purpose, the
Authority shall have supervision and
control over the bringing in or taking
out of the Zone, including the
movement therein, of all cargoes,
wares,
articles,
machineries,
equipment, supplies or merchandise of
every type and description;
x x x x (Emphasis supplied.)

24

In relation to the regulatory purpose of the imposed fees,

this Court in Progressive Development Corporation v.
Quezon City,[29] stated that x x x the imposition questioned
must relate to an occupation or activity that so engages the
public interest in health, morals, safety and development as
to require regulation for the protection and promotion of

must be emphasized also that greater

security measure must be observed in
the CSEZ because of the presence of the
airport which is a vital public
infrastructure.
We are therefore constrained to sustain
the imposition of the royalty fees on
deliveries of CPIs fuel products to
Nanox Philippines.[31]

such public interest; the imposition must also bear a

reasonable relation to the probable expenses of regulation,

As to the issue of reasonableness of the amount of the fees,

taking into account not only the costs of direct regulation

we hold that no evidence was adduced by the petitioner to

but also its incidental consequences as well.

show that the fees imposed are unreasonable.

In the case at bar, there can be no doubt that the oil

Administrative issuances have the force and effect of

industry is greatly imbued with public interest as it vitally

law.[32] They benefit from the same presumption of validity

affects the general welfare.[30] In addition, fuel is a highly

and constitutionality enjoyed by statutes. These two

combustible product which, if left unchecked, poses a

precepts place a heavy burden upon any party assailing

serious threat to life and property. Also, the reasonable

governmental regulations.[33] Petitioners plain allegations

relation between the royalty fees imposed on a per liter

are simply not enough to overcome the presumption of

basis and the regulation sought to be attained is that the

validity and reasonableness of the subject imposition.

higher the volume of fuel entering CSEZ, the greater the

extent and frequency of supervision and inspection

WHEREFORE, the petition is DENIED for lack of merit and

required to ensure safety, security, and order within the

the Decision of the Court of Appeals dated November 30,

Zone.

2005 in CA-G.R. SP No. 87117 is herebyAFFIRMED.

Respondents submit that increased administrative costs

With costs against the petitioner.

were triggered by security risks that have recently emerged,

such as terrorist strikes in airlines and military/government

SO ORDERED.

facilities. Explaining the regulatory feature of the charges

imposed under the Policy Guidelines, then BCDA President
Rufo Colayco in his letter dated March 3, 2004 addressed to
petitioners Chief Corporate Counsel, stressed:
The need for regulation is more evident
in the light of the 9/11 tragedy
considering that what is being moved
from one location to another are highly
combustible fuel products that could
cause loss of lives and damage to
properties, hence, a set of guidelines
was promulgated on 28 June 2002. It

EN BANC
REPRESENTATIVES GERARDO S. G.R. No. 143855

25

ES
PI
N
A,
O
RL
A
N
D
O
F
U
A,
JR
.,
P
R
O
S
P
E
R
O
A
M
A
T
O
N
G,
R
O
B
E
R
T
A
C
E
S.
B
A
R
B
E
R
S,
R
A
U
L
M
.
G
O
N
Z
A

LE
S,
P
R
O
S
P
E
R
O
PI
C
H
A
Y,
JU
A
N
M
IG
U
EL
Z
U
BI
RI
a
n
d
F
R
A
N
KL
IN
B
A
U
TI
ST
A,
Petitioners, Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,*
N
A
C
H
U
R
A
,
*

26

LEONARDO-DE CASTRO,*

P
E
R
E
Z
,

- versus - BRION,*
P
E
R
A
L
T
A
,

M
E
N
D
O
Z
A
,

B
E
R
S
A
M
I
N
,

a
n
d
S
E
R
E
N
O
,

D
E
L
C
A
S
T
I
L
L
O
,

B
A
D
,

*
*

J
J
.
HON
.
RON
A
ALD
O
ZAM
ORA
, JR.
(Exe
V
cuti
I
ve
L
Secr
L
etar
A
y),
R
HON
A
.M
MA
A
R
,
ROX
J
AS
R
(Sec
.
reta
,

27

ry of
Trad
e
and
Indu
stry)
,
HON
.
FELI
PE
MED
ALL
A
(Sec
reta
ry of
Nati
onal
Econ
omi
c
and
Dev
elop
men
t
Aut
hori
ty),
GOV
.
RAF
AEL
BUE
NAV
ENT
URA
(Ban
gko
Sent
ral
ng
Pilip
inas)
and
HON
.
LILIA
BAU
TIST
A
(Cha
irma

n,
Secu
ritie
s
and
Exch
ang
e
Com
miss
ion),
Respondents. Promulgated:

September 21, 2010

x -------------------------------------------------------------------------------------- x
DECISION

ABAD, J.:

This case calls upon the Court to exercise its

power

of

judicial

review

and

determine

the

constitutionality of the Retail Trade Liberalization Act of

2000, which has been assailed as in breach of the
constitutional mandate for the development of a selfreliant and independent national economy effectively
controlled by Filipinos.

The Facts and the Case

On March 7, 2000 President Joseph E. Estrada
signed into law Republic Act (R.A.) 8762, also known as
the Retail Trade Liberalization Act of 2000. It expressly
repealed R.A. 1180, which absolutely prohibited foreign
nationals from engaging in the retail trade business. R.A.
8762 now allows them to do so under four categories:

Categor
yA

Less than

Exclusively for
Filipino
citizens and

28

US$2,500,000.
00

Categor
yB

Categor
yC

Categor
yD

US$2,500,000.
00 up but less
than
US$7,500,000.
00

US$7,500,000.
00 or more

US$250,000.00
per store of
foreign
enterprises
specializing in
high-end
or
luxury products

corporations
wholly owned
by
Filipino
citizens.
For the first
two years of
R.A.
8762s
effectivity,
foreign
ownership is
allowed up to
60%. After the
two-year
period, 100%
foreign equity
shall
be
allowed.
May be wholly
owned
by
foreigners.
Foreign
investments
for
establishing a
store
in
Categories B
and C shall not
be less than
the equivalent
in Philippine
Pesos
of
US$830,000.0
0.
May be wholly
owned
by
foreigners.

On October 11, 2000 petitioners Magtanggol T. Gunigundo

I, Michael T. Defensor, Gerardo S. Espina, Benjamin S.
Lim, Orlando Fua, Jr., Prospero Amatong,

Sergio

Apostol,Robert Ace S. Barbers, Enrique Garcia, Jr., Raul M.

Gonzales, Jaime Jacob, Apolinario Lozada, Jr., Leonardo
Montemayor, Ma. Elena Palma-Gil, Prospero Pichay, Juan
Miguel Zubiri and Franklin Bautista, all members of the
House of Representatives, filed the present petition,
assailing the constitutionality of R.A. 8762 on the following
grounds:

First, the law runs afoul of Sections 9, 19, and 20

of Article II of the Constitution which enjoins the State to
place the national economy under the control of Filipinos to
achieve equal distribution of opportunities, promote
industrialization and full employment, and protect Filipino
enterprise against unfair competition and trade policies.

Second, the implementation of R.A. 8762 would

lead to alien control of the retail trade, which taken
together with alien dominance of other areas of business,
would result in the loss of effective Filipino control of the
economy.

Third, foreign retailers like Walmart and K-Mart

would crush Filipino retailers and sari-sari store vendors,
destroy

self-employment,

and

bring

about

more

unemployment.

Fourth, the World Bank-International Monetary

Fund had improperly imposed the passage of R.A. 8762 on
the government as a condition for the release of certain
R.A. 8762 also allows natural-born Filipino

loans.

citizens, who had lost their citizenship and now reside in

the Philippines, to engage in the retail trade business with
the same rights as Filipino citizens.

Fifth, there is a clear and present danger that the

law would promote monopolies or combinations in
restraint of trade.

29

industries not reserved by the Constitution to Filipino

Respondents Executive Secretary Ronaldo Zamora, Jr.,

citizens.

Trade and Industry Secretary Mar Roxas, National Economic

and Development Authority (NEDA) Secretary Felipe

The Issues Presented

Medalla, Bangko Sentral ng Pilipinas Gov. Rafael

Buenaventura, and Securities and Exchange Commission
Chairman Lilia Bautista countered that:

First, petitioners have no legal standing to file the

petition. They cannot invoke the fact that they are
taxpayers since R.A. 8762 does not involve the

Simplified, the case presents two issues:

1. Whether or not petitioner lawmakers have the

legal standing to challenge the constitutionality of R.A.
8762; and

disbursement of public funds. Nor can they invoke the fact

that they are members of Congress since they made no

2. Whether or not R.A. 8762 is unconstitutional.

claim that the law infringes on their right as legislators.

The Courts Ruling

Second, the petition does not involve any
justiciable controversy. Petitioners of course claim that, as

One. The long settled rule is that he who

members of Congress, they represent the small retail

challenges the validity of a law must have a standing to do

vendors in their respective districts but the petition does

so.[1] Legal standing or locus standi refers to the right of a

not allege that the subject law violates the rights of those

party to come to a court of justice and make such a

vendors.

challenge. More particularly, standing refers to his personal

and substantial interest in that he has suffered or will suffer
direct injury as a result of the passage of that law.[2] To put
Third, petitioners have failed to overcome the

it another way, he must show that he has been or is about

presumption of constitutionality of R.A. 8762. Indeed, they

to be denied some right or privilege to which he is lawfully

could not specify how the new law violates the

entitled or that he is about to be subjected to some burdens

constitutional provisions they cite. Sections 9, 19, and 20 of

or penalties by reason of the law he complains of.[3]

Article II of the Constitution are not self-executing

provisions that are judicially demandable.
Here, there is no clear showing that the implementation of
the Retail Trade Liberalization Act prejudices petitioners or
Fourth, the Constitution mandates the regulation

inflicts damages on them, either as taxpayers[4] or as

but not the prohibition of foreign investments. It directs

legislators.[5] Still the Court will resolve the question they

Congress to reserve to Filipino citizens certain areas of

raise since the rule on standing can be relaxed for

investments upon the recommendation of the NEDA and

nontraditional plaintiffs like ordinary citizens, taxpayers,

when the national interest so dictates. But the Constitution

and legislators when as in this case the public interest so

leaves to the discretion of the Congress whether or not to

requires or the matter is of transcendental importance, of

make such reservation. It does not prohibit Congress from

overarching significance to society, or of paramount public

enacting laws allowing the entry of foreigners into certain

interest.[6]

30

Two. Petitioners mainly argue that R.A. 8762 violates the

mandate of the 1987 Constitution for the State to develop
a self-reliant and independent national economy effectively
controlled by Filipinos. They invoke the provisions of the
Declaration of Principles and State Policies under Article II

sixty per centum of whose capital is

owned by such citizens, or such higher
percentage as Congress may prescribe,
certain areas of investments. The
Congress shall enact measures that
will encourage the formation and
operation of enterprises whose capital
is wholly owned by Filipinos.

of the 1987 Constitution, which read as follows:

Section 9. The State shall

promote a just and dynamic social
order that will ensure the prosperity
and independence of the nation and
free the people from poverty through
policies that provide adequate social
services, promote full employment, a
rising standard of living, and an
improved quality of life for all.

In the grant of rights,

privileges, and concessions covering
the national economy and patrimony,
the State shall give preference to
qualified Filipinos.

The State shall regulate and

exercise authority over foreign
investments within its national
jurisdiction and in accordance with its
national goals and priorities.

xxxx
xxxx
Section 19. The State shall
develop a self-reliant and independent
national
economy
effectively
controlled by Filipinos.

Section 20. The State

recognizes the indispensable role of
the private sector, encourages private
enterprise, and provides incentives to
needed investments.

Section 12. The State shall

promote the preferential use of
Filipino labor, domestic materials and
locally produced goods, and adopt
measures that help make them
competitive.

Section 13. The State shall

pursue a trade policy that serves the
general welfare and utilizes all forms
and arrangements of exchange on the
basis of equality and reciprocity.

Petitioners also invoke the provisions of the

National Economy and Patrimony under Article XII of the
1987 Constitution, which reads:
But, as the Court explained in Taada v. Angara,[7] the
Section 10. The Congress
shall, upon recommendation of the
economic and planning agency, when
the national interest dictates, reserve
to citizens of the Philippines or to
corporations or associations at least

provisions of Article II of the 1987 Constitution, the

declarations of principles and state policies, are not selfexecuting.Legislative failure to pursue such policies cannot
give rise to a cause of action in the courts.

31

The Court further explained in Taada that Article

into the country, it does not prohibit them either. In fact, it

XII of the 1987 Constitution lays down the ideals of

allows an exchange on the basis of equality and reciprocity,

economic nationalism: (1) by expressing preference in favor

frowning only on foreign competition that is unfair.[10] The

of qualified Filipinos in the grant of rights, privileges and

key, as in all economies in the world, is to strike a balance

concessions covering the national economy and patrimony

between protecting local businesses and allowing the entry

and in the use of Filipino labor, domestic materials and

of foreign investments and services.

locally-produced goods; (2) by mandating the State to

adopt measures that help make them competitive; and (3)
by requiring the State to develop a self-reliant and

More importantly, Section 10, Article XII of the

independent national economy effectively controlled by

1987 Constitution gives Congress the discretion to reserve

Filipinos.[8]

to Filipinos certain areas of investments upon the

recommendation of the NEDA and when the national
interest requires. Thus, Congress can determine what policy

In other words, while Section 19, Article II of the

to pass and when to pass it depending on the economic

1987 Constitution requires the development of a self-

exigencies. It can enact laws allowing the entry of foreigners

reliant and independent national economy effectively

into certain industries not reserved by the Constitution to

controlled by Filipino entrepreneurs, it does not impose a

Filipino citizens. In this case, Congress has decided to open

policy

economic

certain areas of the retail trade business to foreign

environment. The objective is simply to prohibit foreign

of

Filipino

monopoly

of

the

investments instead of reserving them exclusively to

powers or interests from maneuvering our economic

Filipino citizens. The NEDA has not opposed such policy.

policies and ensure that Filipinos are given preference in all

areas of development.
The control and regulation of trade in the interest
of the public welfare is of course an exercise of the police
Indeed, the 1987 Constitution takes into account

power of the State. A persons right to property, whether he

the realities of the outside world as it requires the pursuit

is a Filipino citizen or foreign national, cannot be taken from

of a trade policy that serves the general welfare and utilizes

him without due process of law. In 1954, Congress enacted

all forms and arrangements of exchange on the basis of

the Retail Trade Nationalization Act or R.A. 1180 that

equality and reciprocity; and speaks of industries which are

restricts the retail business to Filipino citizens. In denying

competitive in both domestic and foreign markets as well

the petition assailing the validity of such Act for violation of

as of the protection of Filipino enterprises against unfair

the foreigners right to substantive due process of law, the

foreign competition and trade practices. Thus, while the

Supreme Court held that the law constituted a valid

Constitution mandates a bias in favor of Filipino goods,

exercise of police power.[11] The State had an interest in

services, labor and enterprises, it also recognizes the need

preventing alien control of the retail trade and R.A. 1180

for business exchange with the rest of the world on the

was reasonably related to that purpose. That law is not

bases of equality and reciprocity and limits protection of

arbitrary.

Filipino enterprises only against foreign competition and

trade practices that are unfair.[9]
Here, to the extent that R.A. 8762, the Retail
Trade Liberalization Act, lessens the restraint on the
In other words, the 1987 Constitution does not

foreigners right to property or to engage in an ordinarily

rule out the entry of foreign investments, goods, and

lawful business, it cannot be said that the law amounts to a

services. While it does not encourage their unlimited entry

denial of the Filipinos right to property and to due process

32

of law. Filipinos continue to have the right to engage in the

OBERTO
A. ABAD

kinds of retail business to which the law in question has

permitted the entry of foreign investors.
Associate Justice

Certainly, it is not within the province of the Court

to inquire into the wisdom of R.A. 8762 save when it
blatantly violates the Constitution. But as the Court has
said, there is no showing that the law has contravened any
constitutional mandate. The Court is not convinced that the
implementation of R.A. 8762 would eventually lead to alien
Republic of the Philippines
SUPREME COURT
Manila

control of the retail trade business. Petitioners have not

mustered any concrete and strong argument to support its
thesis. The law itself has provided strict safeguards on
foreign participation in that business. Thus

EN BANC
G.R. No. 161107

First, aliens can only engage in retail trade

business

subject

to

the

categories

above-

enumerated; Second, only nationals from, or juridical

entities formed or incorporated in countries which allow
the entry of Filipino retailers shall be allowed to engage in
retail trade business; and Third, qualified foreign retailers
shall not be allowed to engage in certain retailing activities

March 12, 2013

HON. MA. LOURDES C. FERNANDO, in her capacity as City

Mayor of Marikina City, JOSEPHINE C. EVANGELIST A, in
her capacity as Chief, Permit Division, Office of the City
Engineer, and ALFONSO ESPIRITU, in his capacity as City
Engineer of Marikina City, Petitioners,
vs.
ST. SCHOLASTICA'S COLLEGE and ST. SCHOLASTICA'S
ACADEMY-MARIKINA, INC., Respondents.

outside their accredited stores through the use of mobile or

DECISION

rolling stores or carts, the use of sales representatives,

door-to-door selling, restaurants andsari-sari stores and
such other similar retailing activities.

In sum, petitioners have not shown how the retail

trade liberalization has prejudiced and can prejudice the
local

small

and

medium

enterprises

since

Before this Court is a petition for review on certiorari

under Rule 45 of the Rules of Court, which seeks to set
aside the December 1, 2003 Decision1 of the Court of
Appeals (CA) in CA-G.R. SP No. 75691.
The Facts

its

implementation about a decade ago.

WHEREFORE, the Court DISMISSES the petition
for lack of merit. No costs.

MENDOZA, J.:

Respondents St. Scholasticas College (SSC) and St.

Scholasticas Academy-Marikina, Inc. (SSA-Marikina) are
educational institutions organized under the laws of the
Republic of the Philippines, with principal offices and
business addresses at Leon Guinto Street, Malate, Manila,
and at West Drive, Marikina Heights, Marikina City,
respectively.2

SO ORDERED.
Respondent SSC is the owner of four (4) parcels of land
measuring a total of 56,306.80 square meters, located in
Marikina Heights and covered by Transfer Certificate Title
(TCT) No. 91537. Located within the property are SSAMarikina, the residence of the sisters of the Benedictine

33

Order, the formation house of the novices, and the

retirement house for the elderly sisters. The property is
enclosed by a tall concrete perimeter fence built some
thirty (30) years ago. Abutting the fence along the West
Drive are buildings, facilities, and other improvements.3
The petitioners are the officials of the City Government of
Marikina. On September 30, 1994, the Sangguniang
Panlungsod of Marikina City enacted Ordinance No.
192,4 entitled "Regulating the Construction of Fences and
Walls in the Municipality of Marikina." In 1995 and 1998,
Ordinance Nos. 2175 and 2006 were enacted to amend
Sections 7 and 5, respectively. Ordinance No. 192, as
amended, is reproduced hereunder, as follows:
ORDINANCE No. 192
Series of 1994
ORDINANCE REGULATING THE CONSTRUCTION OF FENCES
AND WALLS IN THE MUNICIPALITY OF MARIKINA
WHEREAS, under Section 447.2 of Republic Act No. 7160
otherwise known as the Local Government Code of 1991
empowers the Sangguniang Bayan as the local legislative
body of the municipality to "x x x Prescribe reasonable
limits and restraints on the use of property within the
jurisdiction of the municipality, x x x";
WHEREAS the effort of the municipality to accelerate its
economic and physical development, coupled with
urbanization and modernization, makes imperative the
adoption of an ordinance which shall embody up-to-date
and modern technical design in the construction of fences
of residential, commercial and industrial buildings;
WHEREAS, Presidential Decree No. 1096, otherwise known
as the National Building Code of the Philippines, does not
adequately provide technical guidelines for the
construction of fences, in terms of design, construction,
and criteria;
WHEREAS, the adoption of such technical standards shall
provide more efficient and effective enforcement of laws
on public safety and security;

the municipal government seeks to enact and implement

rules and ordinances to protect and promote the health,
safety and morals of its constituents;
WHEREAS, consistent too, with the "Clean and Green
Program" of the government, lowering of fences and walls
shall encourage people to plant more trees and
ornamental plants in their yards, and when visible, such
trees and ornamental plants are expected to create an
aura of a clean, green and beautiful environment for
Marikeos;
WHEREAS, high fences are unsightly that, in the past,
people planted on sidewalks to "beautify" the faade of
their residences but, however, become hazards and
obstructions to pedestrians;
WHEREAS, high and solid walls as fences are considered
"un-neighborly" preventing community members to easily
communicate and socialize and deemed to create "boxedin" mentality among the populace;
WHEREAS, to gather as wide-range of opinions and
comments on this proposal, and as a requirement of the
Local Government Code of 1991 (R.A. 7160), the
Sangguniang Bayan of Marikina invited presidents or
officers of homeowners associations, and commercial and
industrial establishments in Marikina to two public
hearings held on July 28, 1994 and August 25, 1994;
WHEREAS, the rationale and mechanics of the proposed
ordinance were fully presented to the attendees and no
vehement objection was presented to the municipal
government;
NOW, THEREFORE, BE IT ORDAINED BY THE
SANGGUINANG BAYAN OF MARIKINA IN SESSION DULY
ASSEMBLED:
Section 1. Coverage: This Ordinance regulates the
construction of all fences, walls and gates on lots classified
or used for residential, commercial, industrial, or special
purposes.
Section 2. Definition of Terms:

WHEREAS, it has occurred in not just a few occasions that

high fences or walls did not actually discourage but, in fact,
even protected burglars, robbers, and other lawless
elements from the view of outsiders once they have
gained ingress into these walls, hence, fences not
necessarily providing security, but becomes itself a
"security problem";
WHEREAS, to discourage, suppress or prevent the
concealment of prohibited or unlawful acts earlier
enumerated, and as guardian of the people of Marikina,

a. Front Yard refers to the area of the lot

fronting a street, alley or public thoroughfare.
b. Back Yard the part of the lot at the rear of
the structure constructed therein.
c. Open fence type of fence which allows a
view of "thru-see" of the inner yard and the

34

improvements therein. (Examples: wrought iron,

wooden lattice, cyclone wire)
d. Front gate refers to the gate which serves as
a passage of persons or vehicles fronting a
street, alley, or public thoroughfare.
Section 3. The standard height of fences or walls allowed
under this ordinance are as follows:
(1) Fences on the front yard shall be no more
than one (1) meter in height. Fences in excess of
one (1) meter shall be of an open fence type, at
least eighty percent (80%) see-thru; and
(2) Fences on the side and back yard shall be in
accordance with the provisions of P.D. 1096
otherwise known as the National Building Code.
Section 4. No fence of any kind shall be allowed in areas
specifically reserved or classified as parks.
Section 5. In no case shall walls and fences be built within
the five (5) meter parking area allowance located between
the front monument line and the building line of
commercial and industrial establishments and educational
and religious institutions.7

Section 8. Penalty. Walls found not conforming to the

provisions of this Ordinance shall be demolished by the
municipal government at the expense of the owner of the
lot or structure.
Section 9. The Municipal Engineering Office is tasked to
strictly implement this ordinance, including the issuance of
the necessary implementing guidelines, issuance of
building and fencing permits, and demolition of nonconforming walls at the lapse of the grace period herein
provided.
Section 10. Repealing Clause. All existing Ordinances and
Resolutions, Rules and Regulations inconsistent with the
foregoing provisions are hereby repealed, amended or
modified.
Section 11. Separability Clause. If for any reason or
reasons, local executive orders, rules and regulations or
parts thereof in conflict with this Ordinance are hereby
repealed and/or modified accordingly.
Section 12. Effectivity. This ordinance takes effect after
publication.
APPROVED: September 30, 1994
(Emphases supplied)

Section 6. Exemption.
(1) The Ordinance does not cover perimeter
walls of residential subdivisions.
(2) When public safety or public welfare
requires, the Sangguniang Bayan may allow the
construction and/or maintenance of walls higher
than as prescribed herein and shall issue a
special permit or exemption.
Section 7. Transitory Provision. Real property owners
whose existing fences and walls do not conform to the
specifications herein are allowed adequate period of time
from the passage of this Ordinance within which to
conform, as follows:
(1) Residential houses eight (8) years
(2) Commercial establishments five (5) years
(3) Industrial establishments three (3) years
(4) Educational institutions five (5)
years8 (public and privately owned)

On April 2, 2000, the City Government of Marikina sent a

letter to the respondents ordering them to demolish and
replace the fence of their Marikina property to make it
80% see-thru, and, at the same time, to move it back
about six (6) meters to provide parking space for vehicles
to park.9 On April 26, 2000, the respondents requested for
an extension of time to comply with the directive.10 In
response, the petitioners, through then City Mayor Bayani
F. Fernando, insisted on the enforcement of the subject
ordinance.
Not in conformity, the respondents filed a petition for
prohibition with an application for a writ of preliminary
injunction and temporary restraining order before the
Regional Trial Court, Marikina, Branch 273 (RTC), docketed
as SCA Case No. 2000-381-MK.11
The respondents argued that the petitioners were acting
in excess of jurisdiction in enforcing Ordinance No. 192,
asserting that such contravenes Section 1, Article III of the
1987 Constitution. That demolishing their fence and
constructing it six (6) meters back would result in the loss
of at least 1,808.34 square meters, worth
aboutP9,041,700.00, along West Drive, and at least
1,954.02 square meters, worth roughly P9,770,100.00,
along East Drive. It would also result in the destruction of
the garbage house, covered walk, electric house, storage

35

house, comfort rooms, guards room, guards post, waiting

area for visitors, waiting area for students, Blessed Virgin
Shrine, P.E. area, and the multi-purpose hall, resulting in
the permanent loss of their beneficial use. The
respondents, thus, asserted that the implementation of
the ordinance on their property would be tantamount to
an appropriation of property without due process of law;
and that the petitioners could only appropriate a portion
of their property through eminent domain. They also
pointed out that the goal of the provisions to deter lawless
elements and criminality did not exist as the solid concrete
walls of the school had served as sufficient protection for
many years.12
The petitioners, on the other hand, countered that the
ordinance was a valid exercise of police power, by virtue of
which, they could restrain property rights for the
protection of public safety, health, morals, or the
promotion of public convenience and general prosperity.13
On June 30, 2000, the RTC issued a writ of preliminary
injunction, enjoining the petitioners from implementing
the demolition of the fence at SSCs Marikina property.14
Ruling of the RTC
On the merits, the RTC rendered a Decision,15 dated
October 2, 2002, granting the petition and ordering the
issuance of a writ of prohibition commanding the
petitioners to permanently desist from enforcing or
implementing Ordinance No. 192 on the respondents
property.
The RTC agreed with the respondents that the order of the
petitioners to demolish the fence at the SSC property in
Marikina and to move it back six (6) meters would amount
to an appropriation of property which could only be done
through the exercise of eminent domain. It held that the
petitioners could not take the respondents property
under the guise of police power to evade the payment of
just compensation.
It did not give weight to the petitioners contention that
the parking space was for the benefit of the students and
patrons of SSA-Marikina, considering that the respondents
were already providing for sufficient parking in compliance
with the standards under Rule XIX of the National Building
Code.
It further found that the 80% see-thru fence requirement
could run counter to the respondents right to privacy,
considering that the property also served as a residence of
the Benedictine sisters, who were entitled to some sense
of privacy in their affairs. It also found that the
respondents were able to prove that the danger to
security had no basis in their case. Moreover, it held that

the purpose of beautification could not be used to justify

the exercise of police power.
It also observed that Section 7 of Ordinance No. 192, as
amended, provided for retroactive application. It held,
however, that such retroactive effect should not impair
the respondents vested substantive rights over the
perimeter walls, the six-meter strips of land along the
walls, and the building, structures, facilities, and
improvements, which would be destroyed by the
demolition of the walls and the seizure of the strips of
land.
The RTC also found untenable the petitioners argument
that Ordinance No. 192 was a remedial or curative statute
intended to correct the defects of buildings and structures,
which were brought about by the absence or insufficiency
of laws. It ruled that the assailed ordinance was neither
remedial nor curative in nature, considering that at the
time the respondents perimeter wall was built, the same
was valid and legal, and the ordinance did not refer to any
previous legislation that it sought to correct.
The RTC noted that the petitioners could still take action
to expropriate the subject property through eminent
domain.
The RTC, thus, disposed:
WHEREFORE, the petition is GRANTED. The writ of
prohibition is hereby issued commanding the respondents
to permanently desist from enforcing or implementing
Ordinance No. 192, Series of 1994, as amended, on
petitioners property in question located at Marikina
Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.16
Ruling of the CA
In its December 1, 2003 Decision, the CA dismissed the
petitioners appeal and affirmed the RTC decision.
The CA reasoned out that the objectives stated in
Ordinance No. 192 did not justify the exercise of police
power, as it did not only seek to regulate, but also involved
the taking of the respondents property without due
process of law. The respondents were bound to lose an
unquantifiable sense of security, the beneficial use of their
structures, and a total of 3,762.36 square meters of
property. It, thus, ruled that the assailed ordinance could
not be upheld as valid as it clearly invaded the personal
and property rights of the respondents and "[f]or being
unreasonable, and undue restraint of trade."17

36

It noted that although the petitioners complied with

procedural due process in enacting Ordinance No. 192,
they failed to comply with substantive due process. Hence,
the failure of the respondents to attend the public
hearings in order to raise objections did not amount to a
waiver of their right to question the validity of the
ordinance.
The CA also shot down the argument that the five-meter
setback provision for parking was a legal easement, the
use and ownership of which would remain with, and inure
to, the benefit of the respondents for whom the easement
was primarily intended. It found that the real intent of the
setback provision was to make the parking space free for
use by the public, considering that such would cease to be
for the exclusive use of the school and its students as it
would be situated outside school premises and beyond the
school administrations control.
In affirming the RTC ruling that the ordinance was not a
curative statute, the CA found that the petitioner failed to
point out any irregularity or invalidity in the provisions of
the National Building Code that required correction or
cure. It noted that any correction in the Code should be
properly undertaken by the Congress and not by the City
Council of Marikina through an ordinance.
The CA, thus, disposed:
WHEREFORE, all foregoing premises considered, the
instant appeal is DENIED.1wphi1 The October 2, 2002
Decision and the January 13, 2003 Order of the Regional
Trial Court (RTC) of Marikina City, Branch 273, granting
petitioners-appellees petition for Prohibition in SCA Case
No. 2000-381-MK are hereby AFFIRMED.
SO ORDERED.18
Aggrieved by the decision of the CA, the petitioners are
now before this Court presenting the following
ASSIGNMENT OF ERRORS
1. WHETHER OR NOT THE HONORABLE COURT
OF APPEALS ERRED IN DECLARING THAT CITY
ORDINANCE NO. 192, SERIES OF 1994 IS NOT A
VALID EXERCISE OF POLICE POWER;
2. WHETHER OR NOT THE HONORABLE COURT
OF APPEALS ERRED IN RULING THAT THE
AFOREMENTIONED ORDINANCE IS AN EXERCISE
OF THE CITY OF THE POWER OF EMINENT
DOMAIN;
3. WHETHER OR NOT THE HONORABLE COURT
OF APPEALS ERRED IN DECLARING THAT THE

CITY VIOLATED THE DUE PROCESS CLAUSE IN

IMPLEMENTING ORDINANCE NO. 192, SERIES OF
1994; AND
4. WHETHER OR NOT THE HONORABLE COURT
OF APPEALS ERRED IN RULING THAT THE ABOVEMENTIONED ORDINANCE CANNOT BE GIVEN
RETROACTIVE APPLICATION.19
In this case, the petitioners admit that Section 5 of the
assailed ordinance, pertaining to the five-meter setback
requirement is, as held by the lower courts,
invalid.20 Nonetheless, the petitioners argue that such
invalidity was subsequently cured by Zoning Ordinance No.
303, series of 2000. They also contend that Section 3,
relating to the 80% see-thru fence requirement, must be
complied with, as it remains to be valid.
Ruling of the Court
The ultimate question before the Court is whether
Sections 3.1 and 5 of Ordinance No. 192 are valid exercises
of police power by the City Government of Marikina.
"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."21 The State, through
the legislature, has delegated the exercise of police power
to local government units, as agencies of the State. This
delegation of police power is embodied in Section 1622 of
the Local Government Code of 1991 (R.A. No. 7160),
known as the General Welfare Clause,23 which has two
branches. "The first, known as the general legislative
power, authorizes the municipal council to enact
ordinances and make regulations not repugnant to law, as
may be necessary to carry into effect and discharge the
powers and duties conferred upon the municipal council
by law. The second, known as the police power proper,
authorizes the municipality to enact ordinances as may be
necessary and proper for the health and safety, prosperity,
morals, peace, good order, comfort, and convenience of
the municipality and its inhabitants, and for the protection
of their property."24
White Light Corporation v. City of Manila,25 discusses the
test of a valid ordinance:
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

37

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.26

(1) Fences on the front yard shall be no more than one

(1) meter in height. Fences in excess of one (1) meter shall
be an open fence type, at least eighty percent (80%) seethru;
xxx

Ordinance No. 192 was passed by the City Council of

Marikina in the apparent exercise of its police power. To
successfully invoke the exercise of police power as the
rationale for the enactment of an ordinance and to free it
from the imputation of constitutional infirmity, two tests
have been used by the Court the rational relationship
test and the strict scrutiny test:
We ourselves have often applied the rational basis test
mainly in analysis of equal protection challenges. Using the
rational basis examination, laws or ordinances are upheld
if they rationally further a legitimate governmental
interest. Under intermediate review, governmental
interest is extensively examined and the availability of less
restrictive measures is considered. Applying strict scrutiny,
the focus is on the presence of compelling, rather than
substantial, governmental interest and on the absence of
less restrictive means for achieving that interest.27
Even without going to a discussion of the strict scrutiny
test, Ordinance No. 192, series of 1994 must be struck
down for not being reasonably necessary to accomplish
the Citys purpose. More importantly, it is oppressive of
private rights.
Under the rational relationship test, an ordinance must
pass the following requisites as discussed in Social Justice
Society (SJS) v. Atienza, Jr.:28
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
lawful method.29
Lacking a concurrence of these two requisites, the police
power measure shall be struck down as an arbitrary
intrusion into private rights and a violation of the due
process clause.30
Section 3.1 and 5 of the assailed ordinance are pertinent
to the issue at hand, to wit:
Section 3. The standard height of fences of walls allowed
under this ordinance are as follows:

xxx

xxx

Section 5. In no case shall walls and fences be built within

the five (5) meter parking area allowance located between
the front monument line and the building line of
commercial and industrial establishments and educational
and religious institutions.
The respondents, thus, sought to prohibit the petitioners
from requiring them to (1) demolish their existing concrete
wall, (2) build a fence (in excess of one meter) which must
be 80% see-thru, and (3) build the said fence six meters
back in order to provide a parking area.
Setback Requirement
The Court first turns its attention to Section 5 which
requires the five-meter setback of the fence to provide for
a parking area. The petitioners initially argued that the
ownership of the parking area to be created would remain
with the respondents as it would primarily be for the use
of its students and faculty, and that its use by the public on
non-school days would only be incidental. In their Reply,
however, the petitioners admitted that Section 5 was, in
fact, invalid for being repugnant to the Constitution.31
The Court agrees with the latter position.
The Court joins the CA in finding that the real intent of the
setback requirement was to make the parking space free
for use by the public, considering that it would no longer
be for the exclusive use of the respondents as it would
also be available for use by the general public. Section 9 of
Article III of the 1987 Constitution, a provision on eminent
domain, provides that private property shall not be taken
for public use without just compensation.
The petitioners cannot justify the setback by arguing that
the ownership of the property will continue to remain with
the respondents. It is a settled rule that neither the
acquisition of title nor the total destruction of value is
essential to taking. In fact, it is usually in cases where the
title remains with the private owner that inquiry should be
made to determine whether the impairment of a property
is merely regulated or amounts to a compensable
taking.32 The Court is of the view that the implementation
of the setback requirement would be tantamount to a
taking of a total of 3,762.36 square meters of the
respondents private property for public use without just
compensation, in contravention to the Constitution.

38

Anent the objectives of prevention of concealment of

unlawful acts and "un-neighborliness," it is obvious that
providing for a parking area has no logical connection to,
and is not reasonably necessary for, the accomplishment
of these goals.
Regarding the beautification purpose of the setback
requirement, it has long been settled that the State may
not, under the guise of police power, permanently divest
owners of the beneficial use of their property solely to
preserve or enhance the aesthetic appearance of the
community.33 The Court, thus, finds Section 5 to be
unreasonable and oppressive as it will substantially divest
the respondents of the beneficial use of their property
solely for aesthetic purposes. Accordingly, Section 5 of
Ordinance No. 192 is invalid.
The petitioners, however, argue that the invalidity of
Section 5 was properly cured by Zoning Ordinance No.
303,34 Series of 2000, which classified the respondents
property to be within an institutional zone, under which a
five-meter setback has been required.
The petitioners are mistaken. Ordinance No. 303, Series of
2000, has no bearing to the case at hand.
The Court notes with displeasure that this argument was
only raised for the first time on appeal in this Court in the
petitioners Reply. Considering that Ordinance No. 303 was
enacted on December 20, 2000, the petitioners could very
well have raised it in their defense before the RTC in 2002.
The settled rule in this jurisdiction is that a party cannot
change the legal theory of this case under which the
controversy was heard and decided in the trial court. It
should be the same theory under which the review on
appeal is conducted. Points of law, theories, issues, and
arguments not adequately brought to the attention of the
lower court will not be ordinarily considered by a
reviewing court, inasmuch as they cannot be raised for the
first time on appeal. This will be offensive to the basic
rules of fair play, justice, and due process.35
Furthermore, the two ordinances have completely
different purposes and subjects. Ordinance No. 192 aims
to regulate the construction of fences, while Ordinance
No. 303 is a zoning ordinance which classifies the city into
specific land uses. In fact, the five-meter setback required
by Ordinance No. 303 does not even appear to be for the
purpose of providing a parking area.
By no stretch of the imagination, therefore, can Ordinance
No. 303, "cure" Section 5 of Ordinance No. 192.
In any case, the clear subject of the petition for prohibition
filed by the respondents is Ordinance No. 192 and, as
such, the precise issue to be determined is whether the

petitioners can be prohibited from enforcing the said

ordinance, and no other, against the respondents.
80% See-Thru Fence Requirement
The petitioners argue that while Section 5 of Ordinance
No. 192 may be invalid, Section 3.1 limiting the height of
fences to one meter and requiring fences in excess of one
meter to be at least 80% see-thru, should remain valid and
enforceable against the respondents.
The Court cannot accommodate the petitioner.
For Section 3.1 to pass the rational relationship test, the
petitioners must show the reasonable relation between
the purpose of the police power 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.36
The principal purpose of Section 3.1 is "to discourage,
suppress or prevent the concealment of prohibited or
unlawful acts." The ultimate goal of this objective is clearly
the prevention of crime to ensure public safety and
security. The means employed by the petitioners,
however, is not reasonably necessary for the
accomplishment of this purpose and is unduly oppressive
to private rights. The petitioners have not adequately
shown, and it does not appear obvious to this Court, that
an 80% see-thru fence would provide better protection
and a higher level of security, or serve as a more
satisfactory criminal deterrent, than a tall solid concrete
wall. It may even be argued that such exposed premises
could entice and tempt would-be criminals to the
property, and that a see-thru fence would be easier to
bypass and breach. It also appears that the respondents
concrete wall has served as more than sufficient
protection over the last 40 years. `
As to the beautification purpose of the assailed ordinance,
as previously discussed, the State may not, under the guise
of police power, infringe on private rights solely for the
sake of the aesthetic appearance of the community.
Similarly, the Court cannot perceive how a see-thru fence
will foster "neighborliness" between members of a
community.
Compelling the respondents to construct their fence in
accordance with the assailed ordinance is, thus, a clear
encroachment on their right to property, which necessarily
includes their right to decide how best to protect their
property.
It also appears that requiring the exposure of their
property via a see-thru fence is violative of their right to

39

privacy, considering that the residence of the Benedictine

nuns is also located within the property. The right to
privacy has long been considered a fundamental right
guaranteed by the Constitution that must be protected
from intrusion or constraint. The right to privacy is
essentially the right to be let alone,37 as governmental
powers should stop short of certain intrusions into the
personal life of its citizens.38 It is inherent in the concept of
liberty, enshrined in the Bill of Rights (Article III) in
Sections 1, 2, 3(1), 6, 8, and 17, Article III of the 1987
Constitution.39
The enforcement of Section 3.1 would, therefore, result in
an undue interference with the respondents rights to
property and privacy. Section 3.1 of Ordinance No. 192 is,
thus, also invalid and cannot be enforced against the
respondents.
No Retroactivity
Ordinance No. 217 amended Section 7 of Ordinance No.
192 by including the regulation of educational institutions
which was unintentionally omitted, and giving said
educational institutions five (5) years from the passage of
Ordinance No. 192 (and not Ordinance No. 217) to
conform to its provisions.40 The petitioners argued that the
amendment could be retroactively applied because the
assailed ordinance is a curative statute which is retroactive
in nature.
Considering that Sections 3.1 and 5 of Ordinance No. 192
cannot be enforced against the respondents, it is no longer
necessary to rule on the issue of retroactivity. The Court
shall, nevertheless, pass upon the issue for the sake of
clarity.
"Curative statutes are enacted to cure defects in a prior
law or to validate legal proceedings which would
otherwise be void for want of conformity with certain legal
requirements. They are intended to supply defects,
abridge superfluities and curb certain evils. They are
intended to enable persons to carry into effect that which
they have designed or intended, but has failed of expected
legal consequence by reason of some statutory disability
or irregularity in their own action. They make valid that
which, before the enactment of the statute was invalid.
Their purpose is to give validity to acts done that would
have been invalid under existing laws, as if existing laws
have been complied with. Curative statutes, therefore, by
their very essence, are retroactive."41
The petitioners argue that Ordinance No. 192 is a curative
statute as it aims to correct or cure a defect in the
National Building Code, namely, its failure to provide for
adequate guidelines for the construction of fences. They
ultimately seek to remedy an insufficiency in the law. In
aiming to cure this insufficiency, the petitioners attempt to

add lacking provisions to the National Building Code. This

is not what is contemplated by curative statutes, which
intend to correct irregularities or invalidity in the law. The
petitioners fail to point out any irregular or invalid
provision. As such, the assailed ordinance cannot qualify as
curative and retroactive in nature.
At any rate, there appears to be no insufficiency in the
National Building Code with respect to parking provisions
in relation to the issue of the respondents. Paragraph
1.16.1, Rule XIX of the Rules and Regulations of the said
code requires an educational institution to provide one
parking slot for every ten classrooms. As found by the
lower courts, the respondents provide a total of 76 parking
slots for their 80 classrooms and, thus, had more than
sufficiently complied with the law.
Ordinance No. 192, as amended, is, therefore, not a
curative statute which may be applied retroactively.
Separability
Sections 3.1 and 5 of Ordinance No. 192, as amended, are,
thus, invalid and cannot be enforced against the
respondents. Nonetheless, "the general rule is that where
part of a statute is void as repugnant to the Constitution,
while another part is valid, the valid portion, if susceptible
to being separated from the invalid, may stand and be
enforced."42 Thus, the other sections of the assailed
ordinance remain valid and enforceable.
Conclusion
Considering the invalidity of Sections 3.1 and 5, it is clear
that the petitioners were acting in excess of their
jurisdiction in enforcing Ordinance No. 192 against the
respondents. The CA was correct in affirming the decision
of the RTC in issuing the writ of prohibition. The
petitioners must permanently desist from enforcing
Sections 3.1 and 5 of the assailed ordinance on the
respondents' property in Marikina City.
WHEREFORE, the petition is DENIED. The October 2, 2002
Decision of the Regional Trial Court in SCA Case No. 2000381-MK is AFFIRMED but MODIFIED to read as follows:
WHEREFORE, the petition is GRANTED. The writ of
prohibition is hereby issued commanding the respondents
to permanently desist from enforcing or implementing
Sections 3.1 and 5 of Ordinance No. 192, Series of 1994, as
amended, on the petitioners' property in question located
in Marikina Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.

40

JOSE CATRAL MENDOZA

Associate Justice

with the RTC declaring the ordinance unconstitutional, but

it has now reached the Court as a consolidated appeal
taken in due course by the petitioners after the Court of
Appeals (CA) reversed the judgment of the RTC.
Antecedents

EN BANC
G.R. No. 159110, December 10, 2013
VALENTINO L. LEGASPI, Petitioner, v. CITY OF CEBU, T.C.
(TITO) SAYSON AND RICARDO HAPITAN, Respondents.
[G.R. No. 159692]
BIENVENIDO P. JABAN, SR., AND BIENVENIDO DOUGLAS
LUKE BRADBURY JABAN, Petitioners,v. COURT OF
APPEALS, CITY OF CEBU, CITY MAYOR ALVIN GARCIA,
SANGGUNIANG PANLUNSOD OF CITY OF CEBU, HON.
RENATO V. OSMEA, AS PRESIDING OFFICER OF THE
SANGGUNIANG PANLUNSOD, AND CITOM CHAIRMAN
ALAN GAVIOLA, AS CITOM CHIEF, CITOM TRAFFIC
ENFORCER E. A. ROMERO, AND LITO
GILBUENA, Respondents.
DECISION
BERSAMIN, J.:
The goal of the decentralization of powers to the local
government units (LGUs) is to ensure the enjoyment by
each of the territorial and political subdivisions of the
State of a genuine and meaningful local autonomy. To
attain the goal, the National Legislature has devolved the
three great inherent powers of the State to the LGUs. Each
political subdivision is thereby vested with such powers
subject to constitutional and statutory limitations.
In particular, the Local Government Code (LGC) has
expressly empowered the LGUs to enact and adopt
ordinances to regulate vehicular traffic and to prohibit
illegal parking within their jurisdictions. Now challenged
before the Court are the constitutionality and validity of
one such ordinance on the ground that the ordinance
constituted a contravention of the guaranty of due process
under the Constitution by authorizing the immobilization
of offending vehicles through the clamping of tires. The
challenge originated in the Regional Trial Court (RTC) at
the instance of the petitioners vehicle owners who had
borne the brunt of the implementation of the ordinance

On January 27, 1997 the Sangguniang Panlungsod of the

City of Cebu enacted Ordinance No. 1664 to authorize the
traffic enforcers of Cebu City to immobilize any motor
vehicle violating the parking restrictions and prohibitions
defined in Ordinance No. 801 (Traffic Code of Cebu
City).1 The pertinent provisions of Ordinance No. 1664
read:chanRoblesvirtualLawlibrary
Section 1. POLICY It is the policy of the government of
the City of Cebu to immobilize any motor vehicle violating
any provision of any City Ordinance on Parking
Prohibitions or Restrictions, more particularly Ordinance
No. 801, otherwise known as the Traffic Code of Cebu City,
as amended, in order to have a smooth flow of vehicular
traffic in all the streets in the City of Cebu at all times.
Section 2. IMMOBILIZATION OF VEHICLES Any vehicle
found violating any provision of any existing ordinance of
the City of Cebu which prohibits, regulates or restricts the
parking of vehicles shall be immobilized by clamping any
tire of the said violating vehicle with the use of a denver
boot vehicle immobilizer or any other special gadget
designed to immobilize motor vehicles. For this particular
purpose, any traffic enforcer of the City (regular PNP
Personnel or Cebu City Traffic Law Enforcement Personnel)
is hereby authorized to immobilize any violating vehicle as
hereinabove provided.
Section 3. PENALTIES Any motor vehicle, owner or driver
violating any ordinance on parking prohibitions,
regulations and/or restrictions, as may be provided under
Ordinance No. 801, as amended, or any other existing
ordinance, shall be penalized in accordance with the
penalties imposed in the ordinance so violated, provided
that the vehicle immobilizer may not be removed or
released without its owner or driver paying first to the City
Treasurer of Cebu City through the Traffic Violations
Bureau (TVB) all the accumulated penalties for all prior
traffic law violations that remain unpaid or unsettled, plus
the administrative penalty of Five Hundred Pesos
(P500.00) for the immobilization of the said vehicle, and
receipts of such payments presented to the concerned
personnel of the bureau responsible for the release of the
immobilized vehicle, unless otherwise ordered released by
any of the following officers:chanRoblesvirtualLawlibrary
a) Chairman, CITOM
b) Chairman, Committee on Police, Fire and Penology
c) Asst. City Fiscal Felipe Belcia
3.1 Any person who tampers or tries to release an
immobilized or clamped motor vehicle by destroying the
denver boot vehicle immobilizer or other such special
gadgets, shall be liable for its loss or destruction and shall

41

be prosecuted for such loss or destruction under pain or

penalty under the Revised Penal Code and any other
existing ordinance of the City of Cebu for the criminal act,
in addition to his/her civil liabilities under the Civil Code of
the Philippines; Provided that any such act may not be
compromised nor settled amicably extrajudicially.
3.2 Any immobilized vehicle which is unattended and
constitute an obstruction to the free flow of traffic or a
hazard thereof shall be towed to the city government
impounding area for safekeeping and may be released
only after the provision of Section 3 hereof shall have been
fully complied with.
3.3 Any person who violates any provision of this
ordinance shall, upon conviction, be penalized with
imprisonment of not less than one (1) month nor more
than six (6) months or of a fine of not less than Two
Thousand Pesos (P2,000.00) nor more than Five Thousand
Pesos (P5,000.00), or both such imprisonment and fine at
the discretion of the court.2ChanRoblesVirtualawlibrary
On July 29, 1997, Atty. Bienvenido Jaban (Jaban, Sr.) and
his son Atty. Bienvenido Douglas Luke Bradbury Jaban
(Jaban, Jr.) brought suit in the RTC in Cebu City against the
City of Cebu, then represented by Hon. Alvin Garcia, its
City Mayor, the Sangguniang Panlungsod of Cebu City and
its Presiding Officer, Hon. Renato V. Osmea, and the
chairman and operatives or officers of the City Traffic
Operations Management (CITOM), seeking the declaration
of Ordinance No. 1644 as unconstitutional for being in
violation of due process and for being contrary to law, and
damages.3Their complaint alleged that on June 23, 1997,
Jaban Sr. had properly parked his car in a paying parking
area on Manalili Street, Cebu City to get certain records
and documents from his office;4 that upon his return after
less than 10 minutes, he had found his car being
immobilized by a steel clamp, and a notice being posted
on the car to the effect that it would be a criminal offense
to break the clamp;5 that he had been infuriated by the
immobilization of his car because he had been thereby
rendered unable to meet an important client on that day;
that his car was impounded for three days, and was
informed at the office of the CITOM that he had first to
pay P4,200.00 as a fine to the City Treasurer of Cebu City
for the release of his car;6 that the fine was imposed
without any court hearing and without due process of law,
for he was not even told why his car had been
immobilized; that he had undergone a similar incident of
clamping of his car on the early morning of November 20,
1997 while his car was parked properly in a parking lot in
front of the San Nicolas Pasil Market in Cebu City without
violating any traffic regulation or causing any obstruction;
that he was compelled to pay P1,500.00 (itemized as
P500.00 for the clamping and P1,000.00 for the violation)
without any court hearing and final judgment; that on May
19, 1997, Jaban, Jr. parked his car in a very secluded place
where there was no sign prohibiting parking; that his car
was immobilized by CITOM operative Lito Gilbuena; and

that he was compelled to pay the total sum of P1,400.00

for the release of his car without a court hearing and a
final judgment rendered by a court of justice.7cralawred
On August 11, 1997, Valentino Legaspi (Legaspi) likewise
sued in the RTC the City of Cebu, T.C. Sayson, Ricardo
Hapitan and John Does to demand the delivery of personal
property, declaration of nullity of the Traffic Code of Cebu
City, and damages.8 He averred that on the morning of July
29, 1997, he had left his car occupying a portion of the
sidewalk and the street outside the gate of his house to
make way for the vehicle of the anay exterminator who
had asked to be allowed to unload his materials and
equipment from the front of the residence inasmuch as his
daughters car had been parked in the carport, with the
assurance that the unloading would not take too
long;9 that while waiting for the anay exterminator to
finish unloading, the phone in his office inside the house
had rung, impelling him to go into the house to answer the
call; that after a short while, his soninlaw informed him
that unknown persons had clamped the front wheel of his
car;10 that he rushed outside and found a traffic citation
stating that his car had been clamped by CITOM
representatives with a warning that the unauthorized
removal of the clamp would subject the remover to
criminal charges;11 and that in the late afternoon a group
headed by Ricardo Hapitan towed the car even if it was
not obstructing the flow of traffic.12
In separate answers for the City of Cebu and its co
defendants,13 the City Attorney of Cebu presented similar
defenses, essentially stating that the traffic enforcers had
only upheld the law by clamping the vehicles of the
plaintiffs;14 and that Ordinance No. 1664 enjoyed the
presumption of constitutionality and validity.15
The cases were consolidated before Branch 58 of the RTC,
which, after trial, rendered on January 22, 1999 its
decision declaring Ordinance No. 1664 as null and void
upon the following
ratiocination:chanRoblesvirtualLawlibrary
In clear and simple phrase, the essence of due process was
expressed by Daniel Webster as a law which hears before
it condemns. In another case[s], procedural due process
is that which hears before it condemns, which proceeds
upon inquiry and renders judgment only after trial. It
contemplate(s) notice and opportunity to be heard before
judgment is rendered affecting ones (sic) person or
property. In both procedural and substantive due
process, a hearing is always a prerequisite, hence, the
taking or deprivation of ones life, liberty or property must
be done upon and with observance of the due process
clause of the Constitution and the nonobservance or
violation thereof is, perforce, unconstitutional.
Under Ordinance No. 1664, when a vehicle is parked in a
prohibited, restrycted (sic) or regulated area in the street
or along the street, the vehicle is immobilized by clamping

42

any tire of said vehicle with the use of a denver boot

vehicle immobilizer or any other special gadget which
immobilized the motor vehicle. The violating vehicle is
immobilized, thus, depriving its owner of the use thereof
at the sole determination of any traffic enforcer or regular
PNP personnel or Cebu City Traffic Law Enforcement
Personnel. The vehicle immobilizer cannot be removed or
released without the owner or driver paying first to the
City Treasurer of Cebu through the Traffic Violations
Bureau all the accumulated penalties of all unpaid or
unsettled traffic law violations, plus the administrative
penalty of P500.00 and, further, the immobilized vehicle
shall be released only upon presentation of the receipt of
said payments and upon release order by the Chairman,
CITOM, or Chairman, Committee on Police, Fire and
Penology, or Asst. City Fiscal Felipe Belcina. It should be
stressed that the owner of the immobilized vehicle shall
have to undergo all these ordeals at the mercy of the
Traffic Law Enforcer who, as the Ordinance in question
mandates, is the arresting officer, prosecutor, Judge and
collector. Otherwise stated, the owner of the immobilized
motor vehicle is deprived of his right to the use of his/her
vehicle and penalized without a hearing by a person who is
not legally or duly vested with such rights, power or
authority. The Ordinance in question is penal in nature,
and it has been held;
xxx
WHEREFORE, premised (sic) considered, judgment is
hereby rendered declaring Ordinance No. 1664
unconstitutional and directing the defendant City of Cebu
to pay the plaintiff Valentino Legaspi the sum of
P110,000.00 representing the value of his car, and to all
the plaintiffs, Valentino L. Legaspi, Bienvenido P. Jaban
and Bienvenido Douglas Luke Bradbury Jaban, the sum of
P100,000.00 each or P300,000.00 all as nominal damages
and another P100,000.00 each or P300,000.00 all as
temperate or moderate damages. With costs against
defendant City of Cebu.
SO ORDERED.16 (citations
omitted)chanroblesvirtualawlibrary
The City of Cebu and its codefendants appealed to the
CA, assigning the following errors to the RTC, namely: (a)
the RTC erred in declaring that Ordinance No. 1664 was
unconstitutional; (b) granting,arguendo, that Ordinance
No. 1664 was unconstitutional, the RTC gravely erred in
holding that any violation prior to its declaration as being
unconstitutional was irrelevant; (c) granting, arguendo,
that Ordinance No. 1664 was unconstitutional, the RTC
gravely erred in awarding damages to the plaintiffs; (d)
granting, arguendo, that the plaintiffs were entitled to
damages, the damages awarded were excessive and
contrary to law; and (e) the decision of the RTC was void,
because the Office of the Solicitor General (OSG) had not
been notified of the proceedings.

On June 16, 2003, the CA promulgated its assailed

decision,17 overturning the RTC and declaring Ordinance
No. 1664 valid, to wit:chanRoblesvirtualLawlibrary
The principal thrust of this appeal is the constitutionality
of Ordinance 1664. Defendantsappellants contend that
the passage of Ordinance 1664 is in accordance with the
police powers exercised by the City of Cebu through the
Sangguniang Panlungsod and granted by RA 7160,
otherwise known as the Local Government Code. A
thematic analysis of the law on municipal corporations
confirms this view. As in previous legislation, the Local
Government Code delegates police powers to the local
governments in two ways. Firstly, it enumerates the
subjects on which the Sangguniang Panlungsod may
exercise these powers. Thus, with respect to the use of
public streets, Section 458 of the Code
states:chanRoblesvirtualLawlibrary
Section 458 (a) The sangguniang panlungsod, as the
legislative branch of the city, x x x shall x x x
(5) (v) Regulate the use of streets, avenues, alleys,
sidewalks, bridges, park and other public places and
approve the construction, improvement, repair and
maintenance of the same; establish bus and vehicle stops
and terminals or regulate the use of the same by privately
owned vehicles which serve the public; regulate garages
and the operation of conveyances for hire; designate
stands to be occupied by public vehicles when not in use;
regulate the putting up of signs, signposts, awnings and
awning posts on the streets; and provide for the lighting,
cleaning and sprinkling of streets and public places;
(vi) Regulate traffic on all streets and bridges; prohibit
encroachments or obstacles thereon and, when necessary
in the interest of public welfare, authorize the removal of
encroachments and illegal constructions in public places.
It then makes a general grant of the police power. The
scope of the legislative authority of the local government
is set out in Section 16, to wit:chanRoblesvirtualLawlibrary
Section 16. General Welfare. Every local government unit
shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the
promotion of the general welfare.
This provision contains what is traditionally known as the
general welfare clause. As expounded in United States vs.
Salaveria, 39 Phil 102, the general welfare clause has two
branches. One branch attaches itself to the main trunk of
municipal authority, and relates to such ordinances and
regulations as may be necessary to carry into effect and
discharge the powers and duties conferred upon the
municipal council by law. The second branch of the clause
is much more independent of the specific functions of the
council, and authorizes such ordinances as shall seem
necessary and proper to provide for health, safety,
prosperity and convenience of the municipality and its
inhabitants.

43

Ruling
In a vital and critical way, the general welfare clause
complements the more specific powers granted a local
government. It serves as a catchall provision that ensures
that the local government will be equipped to meet any
local contingency that bears upon the welfare of its
constituents but has not been actually anticipated. So
varied and protean are the activities that affect the
legitimate interests of the local inhabitants that it is well
nigh impossible to say beforehand what may or may not
be done specifically through law. To ensure that a local
government can react positively to the peoples needs and
expectations, the general welfare clause has been devised
and interpreted to allow the local legislative council to
enact such measures as the occasion requires.
Founded on clear authority and tradition, Ordinance 1664
may be deemed a legitimate exercise of the police powers
of the Sangguniang Panlungsod of the City of Cebu. This
local law authorizes traffic enforcers to immobilize and
tow for safekeeping vehicles on the streets that are
illegally parked and to release them upon payment of the
announced penalties. As explained in the preamble, it has
become necessary to resort to these measures because of
the traffic congestion caused by illegal parking and the
inability of existing penalties to curb it. The ordinance is
designed to improve traffic conditions in the City of Cebu
and thus shows a real and substantial relation to the
welfare, comfort and convenience of the people of Cebu.
The only restrictions to an ordinance passed under the
general welfare clause, as declared in Salaveria, is that the
regulation must be reasonable, consonant with the
general powers and purposes of the corporation,
consistent with national laws and policies, and not
unreasonable or discriminatory. The measure in question
undoubtedly comes within these parameters.
Upon the denial of their respective motions for
reconsideration on August 4, 2003, the Jabans and Legaspi
came to the Court via separate petitions for review
on certiorari. The appeals were consolidated.
Issues
Based on the submissions of the parties, the following
issues are decisive of the challenge, to
wit:chanRoblesvirtualLawlibrary
1.

Whether Ordinance No. 1664 was

enacted within the ambit of the
legislative powers of the City of Cebu;
and

2.

Whether Ordinance No. 1664 complied

with the requirements for validity and
constitutionality, particularly the
limitations set by the Constitution and
the relevant statutes.

The petitions for review have no merit.

A.
Tests for a valid ordinance
In City of Manila v. Laguio, Jr.,18 the Court restates the
tests of a valid ordinance
thusly:chanRoblesvirtualLawlibrary
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.19ChanRoblesVirtualawlibrary
As jurisprudence indicates, the tests are divided into the
formal (i.e., whether the ordinance was enacted within the
corporate powers of the LGU, and whether it was passed
in accordance with the procedure prescribed by law), and
the substantive (i.e., involving inherent merit, like the
conformity of the ordinance with the limitations under the
Constitution and the statutes, as well as with the
requirements of fairness and reason, and its consistency
with public policy).
B.
Compliance of Ordinance No. 1664 with the formal
requirements
Was the enactment of Ordinance No. 1664 within the
corporate powers of the LGU of the City of Cebu?
The answer is in the affirmative. Indeed, with no issues
being hereby raised against the formalities attendant to
the enactment of Ordinance No. 1664, we presume its full
compliance with the test in that regard. Congress enacted
the LGC as the implementing law for the delegation to the
various LGUs of the States great powers, namely: the
police power, the power of eminent domain, and the
power of taxation. The LGC was fashioned to delineate the
specific parameters and limitations to be complied with by
each LGU in the exercise of these delegated powers with
the view of making each LGU a fully functioning
subdivision of the State subject to the constitutional and
statutory limitations.
In particular, police power is regarded as the most
essential, insistent and the least limitable of powers,
extending as it does to all the great public needs.20 It is

44

unquestionably the power vested in the legislature by the

constitution, to make, ordain and establish all manner of
wholesome and reasonable laws, statutes and ordinances,
either with penalties or without, not repugnant to the
constitution, as they shall judge to be for the good and
welfare of the commonwealth, and of the subject of the
same.21 According to Cooley: [The police power]
embraces the whole system of internal regulation by
which the state seeks not only to preserve the public order
and to prevent offences against itself, but also to establish
for the intercourse of citizens with citizens, those rules of
good manners and good neighborhood which are
calculated to prevent the conflict of rights and to insure to
each the uninterrupted enjoyment of his own, so far as it
is reasonably consistent with the right enjoyment of rights
by others.22
In point is the exercise by the LGU of the City of Cebu of
delegated police power. In Metropolitan Manila
Development Authority v. BelAir Village Association,
Inc.,23 the Court cogently
observed:chanRoblesvirtualLawlibrary
It bears stressing that police power is lodged primarily in
the National Legislature. It cannot be exercised by any
group or body of individuals not possessing legislative
power. The National Legislature, however, may delegate
this power to the President and administrative boards as
well as the lawmaking bodies of municipal corporations
or local government units. Once delegated, the agents
can exercise only such legislative powers as are conferred
on them by the national lawmaking body. (emphasis
supplied)chanroblesvirtualawlibrary
The CA opined, and correctly so, that vesting cities like the
City of Cebu with the legislative power to enact traffic
rules and regulations was expressly done through Section
458 of the LGC, and also generally by virtue of the General
Welfare Clause embodied in Section 16 of the LGC.24
Section 458 of the LGC relevantly
states:chanRoblesvirtualLawlibrary
Section 458. Powers, Duties, Functions and Composition.
(a) The sangguniang panlungsod, as the legislative body of
the city, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the city and
its inhabitants pursuant to Section 16 of this Code and in
the proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:
xxx
(5) Approve ordinances which shall ensure the efficient
and effective delivery of the basic services and facilities
as provided for under Section 17 of this Code, and in
addition to said services and facilities, shall:
xxx
(v) Regulate the use of streets, avenues, alleys, sidewalks,
bridges, parks and other public places and approve the

construction, improvement repair and maintenance of

the same; establish bus and vehicle stops and terminals
or regulate the use of the same by privatelyowned
vehicles which serve the public; regulate garages and
operation of conveyances for hire; designate stands to be
occupied by public vehicles when not in use; regulate the
putting up of signs, signposts, awnings and awning posts
on the streets; and provide for the lighting, cleaning and
sprinkling of streets and public places;
(vi) Regulate traffic on all streets and bridges; prohibit
encroachments or obstacles thereon and, when
necessary in the interest of public welfare, authorize the
removal of encroachments and illegal constructions in
public places; (emphasis
supplied)chanroblesvirtualawlibrary
The foregoing delegation reflected the desire of Congress
to leave to the cities themselves the task of confronting
the problem of traffic congestions associated with
development and progress because they were directly
familiar with the situations in their respective jurisdictions.
Indeed, the LGUs would be in the best position to craft
their traffic codes because of their familiarity with the
conditions peculiar to their communities. With the broad
latitude in this regard allowed to the LGUs of the cities,
their traffic regulations must be held valid and effective
unless they infringed the constitutional limitations and
statutory safeguards.
C.
Compliance of Ordinance No. 1664with the substantive
requirements
The first substantive requirement for a valid ordinance is
the adherence to the constitutional guaranty of due
process of law. The guaranty is embedded in Article III,
Section 1 of the Constitution, which
ordains:chanRoblesvirtualLawlibrary
Section 1. No person shall be deprived of life, liberty or
property without due process of law, nor shall any person
be denied the equal protection of the laws.
The guaranty of due process of law is a constitutional
safeguard against any arbitrariness on the part of the
Government, whether committed by the Legislature, the
Executive, or the Judiciary. It is a protection essential to
every inhabitant of the country, for, as a commentator on
Constitutional Law has vividly written:25
x x x. If the law itself unreasonably deprives a person of his
life, liberty, or property, he is denied the protection of due
process. If the enjoyment of his rights is conditioned on an
unreasonable requirement, due process is likewise
violated. Whatsoever be the source of such rights, be it
the Constitution itself or merely a statute, its unjustified
withholding would also be a violation of due process. Any
government act that militates against the ordinary norms
of justice or fair play is considered an infraction of the

45

great guaranty of due process; and this is true whether the

denial involves violation merely of the procedure
prescribed by the law or affects the very validity of the law
itself.
Jr.,26

In City of Manila v. Laguio,

the Court expounded on
the aspects of the guaranty of due process of law as a
limitation on the acts of
government, viz:chanRoblesvirtualLawlibrary
This clause has been interpreted as imposing two separate
limits on government, usually called procedural due
process and substantive due process.
Procedural due process, as the phrase implies, refers to
the procedures that the government must follow before it
deprives a person of life, liberty, or property. Classic
procedural due process issues are concerned with that
kind of notice and what form of hearing the government
must provide when it takes a particular action.
Substantive due process, as that phrase connotes, asks
whether the government has an adequate reason for
taking away a persons life, liberty, or property. In other
words, substantive due process looks to whether there is
sufficient justification for the governments action. Case
law in the United States (U.S.) tells us that whether there
is such a justification depends very much on the level of
scrutiny used. For example, if a law is in an area where
only rational basis review is applied, substantive due
process is met so long as the law is rationally related to a
legitimate government purpose. But if it is an area where
strict scrutiny is used, such as for protecting fundamental
rights, then the government will meet substantive due
process only if it can prove that the law is necessary to
achieve a compelling government purpose.
The police power granted to local government units must
always be exercised with utmost observance of the rights
of the people to due process and equal protection of the
law. Such power cannot be exercised whimsically,
arbitrarily or despotically as its exercise is subject to a
qualification, limitation or restriction demanded by the
respect and regard due to the prescription of the
fundamental law, particularly those forming part of the Bill
of Rights. Individual rights, it bears emphasis, may be
adversely affected only to the extent that may fairly be
required by the legitimate demands of public interest or
public welfare. Due process requires the intrinsic validity
of the law in interfering with the rights of the person to his
life, liberty and property.27ChanRoblesVirtualawlibrary
The Jabans contend that Ordinance No. 1664, by leaving
the confiscation and immobilization of the motor vehicles
to the traffic enforcers or the regular personnel of the
Philippine National Police (PNP) instead of to officials
exercising judicial authority, was violative of the
constitutional guaranty of due process; that such
confiscation and immobilization should only be after a
hearing on the merits by courts of law; and that the
immobilization and the clamping of the cars and motor

vehicles by the police or traffic enforcers could be subject

to abuse.
On his part, Legaspi likewise contends that Ordinance No.
1664 violated the constitutional guaranty of due process
for being arbitrary and oppressive; and that its provisions
conferring upon the traffic enforcers the absolute
discretion to be the enforcers, prosecutors, judges and
collectors all at the same time were vague and
ambiguous.28 He reminds that the grant of police powers
for the general welfare under the LGC was not unlimited
but subject to constitutional limitations;29 and that these
consolidated cases should not be resolved differently from
the resolution of a third case assailing the validity of
Ordinance No. 1664 (Astillero case), in which the decision
of the same RTC declaring Ordinance No. 1664 as
unconstitutional had attained finality following the denial
of due course to the appeal of the City of Cebu and its co
defendants.
Judged according to the foregoing enunciation of the
guaranty of due process of law, the contentions of the
petitioners cannot be sustained. Even under strict scrutiny
review, Ordinance No. 1664 met the substantive tests of
validity and constitutionality by its conformity with the
limitations under the Constitution and the statutes, as well
as with the requirements of fairness and reason, and its
consistency with public policy.
To us, the terms encroachment and obstacles used in
Section 458 of the LGC, supra, were broad enough to
include illegally parked vehicles or whatever else
obstructed the streets, alleys and sidewalks, which were
precisely the subject of Ordinance No. 1664 in avowedly
aiming to ensure a smooth flow of vehicular traffic in all
the streets in the City of Cebu at all times (Section 1). This
aim was borne out by its Whereas
Clauses, viz:chanRoblesvirtualLawlibrary
WHEREAS, the City of Cebu enacted the Traffic Code
(Ordinance No. 801) as amended, provided for Parking
Restrictions and Parking Prohibitions in the streets of Cebu
City;
WHEREAS, despite the restrictions and prohibitions of
parking on certain streets of Cebu City, violations
continued unabated due, among others, to the very low
penalties imposed under the Traffic Code of Cebu City;
WHEREAS, City Ordinance 1642 was enacted in order to
address the traffic congestions caused by illegal parkings
in the streets of Cebu City;
WHEREAS, there is a need to amend City Ordinance
No.1642 in order to fully address and solve the problem
of illegal parking and other violations of the Traffic Code
of Cebu City;30 (emphasis
supplied)chanroblesvirtualawlibrary

46

Considering that traffic congestions were already retarding

the growth and progress in the population and economic
centers of the country, the plain objective of Ordinance
No. 1664 was to serve the public interest and advance the
general welfare in the City of Cebu. Its adoption was,
therefore, in order to fulfill the compelling government
purpose of immediately addressing the burgeoning traffic
congestions caused by illegally parked vehicles obstructing
the streets of the City of Cebu.
Legaspis attack against the provisions of Ordinance No.
1664 for being vague and ambiguous cannot stand
scrutiny. As can be readily seen, its text was forthright and
unambiguous in all respects. There could be no confusion
on the meaning and coverage of the ordinance. But should
there be any vagueness and ambiguity in the provisions,
which the OSG does not concede,31 there was nothing that
a proper application of the basic rules of statutory
construction could not justly rectify.
The petitioners further assert that drivers or vehicle
owners affected by Ordinance No. 1664 like themselves
were not accorded the opportunity to protest the
clamping, towing, and impounding of the vehicles, or even
to be heard and to explain their side prior to the
immobilization of their vehicles; and that the ordinance
was oppressive and arbitrary for that reason.
The adverse assertions against Ordinance No. 1664 are
unwarranted.
Firstly, Ordinance No. 1664 was far from oppressive and
arbitrary. Any driver or vehicle owner whose vehicle was
immobilized by clamping could protest such action of a
traffic enforcer or PNP personnel enforcing the ordinance.
Section 3 of Ordinance No. 1664, supra, textually afforded
an administrative escape in the form of permitting the
release of the immobilized vehicle upon a protest directly
made to the Chairman of CITOM; or to the Chairman of
the Committee on Police, Fire and Penology of the City of
Cebu; or to Asst. City Prosecutor Felipe Belcia officials
named in the ordinance itself. The release could be
ordered by any of such officials even without the payment
of the stipulated fine. That none of the petitioners, albeit
lawyers all, resorted to such recourse did not diminish the
fairness and reasonableness of the escape clause written
in the ordinance. Secondly, the immobilization of a vehicle
by clamping pursuant to the ordinance was not necessary
if the driver or vehicle owner was around at the time of
the apprehension for illegal parking or obstruction. In that
situation, the enforcer would simply either require the
driver to move the vehicle or issue a traffic citation should
the latter persist in his violation. The clamping would
happen only to prevent the transgressor from using the
vehicle itself to escape the due sanctions. And, lastly, the
towing away of the immobilized vehicle was not
equivalent to a summary impounding, but designed to
prevent the immobilized vehicle from obstructing traffic in

the vicinity of the apprehension and thereby ensure the

smooth flow of traffic. The owner of the towed vehicle
would not be deprived of his property.
In fine, the circumstances set forth herein indicate that
Ordinance No. 1664 complied with the elements of
fairness and reasonableness.
Did Ordinance No. 1664 meet the requirements of
procedural due process?
Notice and hearing are the essential requirements of
procedural due process. Yet, there are many instances
under our laws in which the absence of one or both of
such requirements is not necessarily a denial or
deprivation of due process. Among the instances are the
cancellation of the passport of a person being sought for
the commission of a crime, the preventive suspension of a
civil servant facing administrative charges, the distraint of
properties to answer for tax delinquencies, the padlocking
of restaurants found to be unsanitary or of theaters
showing obscene movies, and the abatement of
nuisance per se.32 Add to them the arrest of a person in
flagrante delicto.33
The clamping of the petitioners vehicles pursuant to
Ordinance No. 1664 (and of the vehicles of others similarly
situated) was of the same character as the aforecited
established exceptions dispensing with notice and hearing.
As already said, the immobilization of illegally parked
vehicles by clamping the tires was necessary because the
transgressors were not around at the time of
apprehension. Under such circumstance, notice and
hearing would be superfluous. Nor should the lack of a
trialtype hearing prior to the clamping constitute a
breach of procedural due process, for giving the
transgressors the chance to reverse the apprehensions
through a timely protest could equally satisfy the need for
a hearing. In other words, the prior intervention of a court
of law was not indispensable to ensure a compliance with
the guaranty of due process.
To reiterate, the clamping of the illegally parked vehicles
was a fair and reasonable way to enforce the ordinance
against its transgressors; otherwise, the transgressors
would evade liability by simply driving away.
Finally, Legaspis position, that the final decision of the RTC
rendered in the Astillero case declaring Ordinance No.
1664 unconstitutional bound the City of Cebu, thereby
precluding these consolidated appeals from being decided
differently, is utterly untenable. For one, Legaspi
undeservedly extends too much importance to an
irrelevant decision of the RTC irrelevant, because the
connection between that case to these cases was not at all
shown. For another, he ignores that it should be the RTC
that had improperly acted for so deciding the Astillero
case despite the appeals in these cases being already

47

pending in the CA. Being the same court in the three cases,
the RTC should have anticipated that in the regular course
of proceedings, the outcome of the appeal in these cases
then pending before the CA would ultimately be elevated
to and determined by no less than the Court itself. Such
anticipation should have made it refrain from declaring
Ordinance No. 1664 unconstitutional, for a lower court like
itself, appreciating its position in the interrelation and
operation of the integrated judicial system of the nation,
should have exercised a becoming modesty on the issue
of the constitutionality of the same ordinance that the
Constitution required the majority vote of the Members of
the Court sitting en banc to determine.34 Such becoming
modesty also forewarned that any declaration of
unconstitutionality by an inferior court was binding only
on the parties, but that a declaration of unconstitutionality
by the Court would be a precedent binding on all.35

Before us is a Petition for Prohibition2 under Rule 65 of the

Rules of Court filed by petitioners Manila Memorial Park,
Inc. and La Funeraria Paz-Sucat, Inc., domestic
corporations engaged in the business of providing funeral
and burial services, against public respondents Secretaries
of the Department of Social Welfare and Development
(DSWD) and the Department of Finance (DOF).

WHEREFORE, the Court DENIES the petitions for review

on certiorari for their lack of merit;AFFIRMS the decision
promulgated on June 16, 2003 by the Court of Appeals;
and ORDERS the petitioners to pay the costs of suit.

On April 23, 1992, RA 7432 was passed into law, granting

senior citizens the following privileges:

Petitioners assail the constitutionality of Section 4 of

Republic Act (RA) No. 7432,3 as amended by RA 9257,4 and
the implementing rules and regulations issued by the
DSWD and DOF insofar as these allow business
establishments to claim the 20% discount given to senior
citizens as a tax deduction.
Factual Antecedents

SECTION 4. Privileges for the Senior Citizens. The senior

citizens shall be entitled to the following:

SO ORDERED.
a) the grant of twenty percent (20%) discount from all
establishments relative to utilization of transportation
services, hotels and similar lodging establishment[s],
restaurants and recreation centers and purchase of
medicine anywhere in the country: Provided, That private
establishments may claim the cost as tax credit;

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 175356

December 3, 2013

MANILA MEMORIAL PARK, INC. AND LA FUNERARIA PAZSUCAT, INC., Petitioners,

vs.
SECRETARY OF THE DEPARTMENT OF SOCIAL WELFARE
AND DEVELOPMENT and THE SECRETARY OF THE
DEPARTMENT OF FINANCE, Respondents.
DECISION
DEL CASTILLO, J.:
When a party challeges the constitutionality of a law, the
burden of proof rests upon him.

b) a minimum of twenty percent (20%) discount on

admission fees charged by theaters, cinema houses and
concert halls, circuses, carnivals and other similar places of
culture, leisure, and amusement;
c) exemption from the payment of individual income
taxes: Provided, That their annual taxable income does not
exceed the property level as determined by the National
Economic and Development Authority (NEDA) for that
year;
d) exemption from training fees for socioeconomic
programs undertaken by the OSCA as part of its work;
e) free medical and dental services in government
establishment[s] anywhere in the country, subject to
guidelines to be issued by the Department of Health, the
Government Service Insurance System and the Social
Security System;
f) to the extent practicable and feasible, the continuance
of the same benefits and privileges given by the
Government Service Insurance System (GSIS), Social
Security System (SSS) and PAG-IBIG, as the case may be, as
are enjoyed by those in actual service.

48

On August 23, 1993, Revenue Regulations (RR) No. 02-94

was issued to implement RA 7432. Sections 2(i) and 4 of
RR No. 02-94 provide:
Sec. 2. DEFINITIONS. For purposes of these regulations: i.
Tax Credit refers to the amount representing the 20%
discount granted to a qualified senior citizen by all
establishments relative to their utilization of
transportation services, hotels and similar lodging
establishments, restaurants, drugstores, recreation
centers, theaters, cinema houses, concert halls, circuses,
carnivals and other similar places of culture, leisure and
amusement, which discount shall be deducted by the said
establishments from their gross income for income tax
purposes and from their gross sales for value-added tax or
other percentage tax purposes. x x x x Sec. 4.
RECORDING/BOOKKEEPING REQUIREMENTS FOR PRIVATE
ESTABLISHMENTS. Private establishments, i.e., transport
services, hotels and similar lodging establishments,
restaurants, recreation centers, drugstores, theaters,
cinema houses, concert halls, circuses, carnivals and other
similar places of culture[,] leisure and amusement, giving
20% discounts to qualified senior citizens are required to
keep separate and accurate record[s] of sales made to
senior citizens, which shall include the name, identification
number, gross sales/receipts, discounts, dates of
transactions and invoice number for every transaction. The
amount of 20% discount shall be deducted from the gross
income for income tax purposes and from gross sales of
the business enterprise concerned for purposes of the VAT
and other percentage taxes.
In Commissioner of Internal Revenue v. Central Luzon Drug
Corporation,5 the Court declared Sections 2(i) and 4 of RR
No. 02-94 as erroneous because these contravene RA
7432,6 thus:
RA 7432 specifically allows private establishments to claim
as tax credit the amount of discounts they grant. In turn,
the Implementing Rules and Regulations, issued pursuant
thereto, provide the procedures for its availment. To deny
such credit, despite the plain mandate of the law and the
regulations carrying out that mandate, is indefensible.
First, the definition given by petitioner is erroneous. It
refers to tax credit as the amount representing the 20
percent discount that "shall be deducted by the said
establishments from their gross income for income tax
purposes and from their gross sales for value-added tax or
other percentage tax purposes." In ordinary business
language, the tax credit represents the amount of such
discount. However, the manner by which the discount
shall be credited against taxes has not been clarified by the
revenue regulations. By ordinary acceptation, a discount is
an "abatement or reduction made from the gross amount
or value of anything." To be more precise, it is in business
parlance "a deduction or lowering of an amount of
money;" or "a reduction from the full amount or value of
something, especially a price." In business there are many

kinds of discount, the most common of which is that

affecting the income statement or financial report upon
which the income tax is based.
xxxx
Sections 2.i and 4 of Revenue Regulations No. (RR) 2-94
define tax credit as the 20 percent discount deductible
from gross income for income tax purposes, or from gross
sales for VAT or other percentage tax purposes. In effect,
the tax credit benefit under RA 7432 is related to a sales
discount. This contrived definition is improper, considering
that the latter has to be deducted from gross sales in order
to compute the gross income in the income statement and
cannot be deducted again, even for purposes of
computing the income tax. When the law says that the
cost of the discount may be claimed as a tax credit, it
means that the amount when claimed shall be
treated as a reduction from any tax liability, plain and
simple. The option to avail of the tax credit benefit
depends upon the existence of a tax liability, but to limit
the benefit to a sales discount which is not even
identical to the discount privilege that is granted by law
does not define it at all and serves no useful purpose. The
definition must, therefore, be stricken down.
Laws Not Amended by Regulations
Second, the law cannot be amended by a mere regulation.
In fact, a regulation that "operates to create a rule out of
harmony with the statute is a mere nullity;" it cannot
prevail. It is a cardinal rule that courts "will and should
respect the contemporaneous construction placed upon a
statute by the executive officers whose duty it is to
enforce it x x x." In the scheme of judicial tax
administration, the need for certainty and predictability in
the implementation of tax laws is crucial. Our tax
authorities fill in the details that "Congress may not have
the opportunity or competence to provide." The
regulations these authorities issue are relied upon by
taxpayers, who are certain that these will be followed by
the courts. Courts, however, will not uphold these
authorities interpretations when clearly absurd,
erroneous or improper. In the present case, the tax
authorities have given the term tax credit in Sections 2.i
and 4 of RR 2-94 a meaning utterly in contrast to what RA
7432 provides. Their interpretation has muddled x x x the
intent of Congress in granting a mere discount privilege,
not a sales discount. The administrative agency issuing
these regulations may not enlarge, alter or restrict the
provisions of the law it administers; it cannot engraft
additional requirements not contemplated by the
legislature.
In case of conflict, the law must prevail. A "regulation
adopted pursuant to law is law." Conversely, a regulation

49

or any portion thereof not adopted pursuant to law is no

law and has neither the force nor the effect of law.7

gross sales or gross receipts of the business enterprise

concerned, for VAT or other percentage tax purposes.

On February 26, 2004, RA 92578 amended certain

provisions of RA 7432, to wit:

(4) The discount can only be allowed as deduction from

gross income for the same taxable year that the discount is
granted.

SECTION 4. Privileges for the Senior Citizens. The senior

citizens shall be entitled to the following:
(a) the grant of twenty percent (20%) discount from all
establishments relative to the utilization of services in
hotels and similar lodging establishments, restaurants and
recreation centers, and purchase of medicines in all
establishments for the exclusive use or enjoyment of
senior citizens, including funeral and burial services for the
death of senior citizens;
xxxx
The establishment may claim the discounts granted under
(a), (f), (g) and (h) as tax deduction based on the net cost
of the goods sold or services rendered: Provided, That the
cost of the discount shall be allowed as deduction from
gross income for the same taxable year that the discount is
granted. Provided, further, That the total amount of the
claimed tax deduction net of value added tax if applicable,
shall be included in their gross sales receipts for tax
purposes and shall be subject to proper documentation
and to the provisions of the National Internal Revenue
Code, as amended.

(5) The business establishment giving sales discounts to

qualified senior citizens is required to keep separate and
accurate record[s] of sales, which shall include the name
of the senior citizen, TIN, OSCA ID, gross sales/receipts,
sales discount granted, [date] of [transaction] and invoice
number for every sale transaction to senior citizen.
(6) Only the following business establishments which
granted sales discount to senior citizens on their sale of
goods and/or services may claim the said discount granted
as deduction from gross income, namely:
xxxx
(i) Funeral parlors and similar establishments The
beneficiary or any person who shall shoulder the funeral
and burial expenses of the deceased senior citizen shall
claim the discount, such as casket, embalmment,
cremation cost and other related services for the senior
citizen upon payment and presentation of [his] death
certificate.
The DSWD likewise issued its own Rules and Regulations
Implementing RA 9257, to wit:

To implement the tax provisions of RA 9257, the Secretary

of Finance issued RR No. 4-2006, the pertinent provision of
which provides:

RULE VI DISCOUNTS AS TAX DEDUCTION OF

ESTABLISHMENTS

SEC. 8. AVAILMENT BY ESTABLISHMENTS OF SALES

DISCOUNTS AS DEDUCTION FROM GROSS INCOME.
Establishments enumerated in subparagraph (6)
hereunder granting sales discounts to senior citizens on
the sale of goods and/or services specified thereunder are
entitled to deduct the said discount from gross income
subject to the following conditions:

Article 8. Tax Deduction of Establishments. The

establishment may claim the discounts granted under Rule
V, Section 4 Discounts for Establishments, Section 9,
Medical and Dental Services in Private Facilities and
Sections 10 and 11 Air, Sea and Land Transportation as
tax deduction based on the net cost of the goods sold or
services rendered.

(1) Only that portion of the gross sales EXCLUSIVELY USED,

CONSUMED OR ENJOYED BY THE SENIOR CITIZEN shall be
eligible for the deductible sales discount.

Provided, That the cost of the discount shall be allowed as

deduction from gross income for the same taxable year
that the discount is granted; Provided, further, That the
total amount of the claimed tax deduction net of value
added tax if applicable, shall be included in their gross
sales receipts for tax purposes and shall be subject to
proper documentation and to the provisions of the
National Internal Revenue Code, as amended; Provided,
finally, that the implementation of the tax deduction shall
be subject to the Revenue Regulations to be issued by the
Bureau of Internal Revenue (BIR) and approved by the
Department of Finance (DOF).

(2) The gross selling price and the sales discount MUST BE
SEPARATELY INDICATED IN THE OFFICIAL RECEIPT OR
SALES INVOICE issued by the establishment for the sale of
goods or services to the senior citizen.
(3) Only the actual amount of the discount granted or a
sales discount not exceeding 20% of the gross selling price
can be deducted from the gross income, net of value
added tax, if applicable, for income tax purposes, and from

50

Feeling aggrieved by the tax deduction scheme, petitioners

filed the present recourse, praying that Section 4 of RA
7432, as amended by RA 9257, and the implementing rules
and regulations issued by the DSWD and the DOF be
declared unconstitutional insofar as these allow business
establishments to claim the 20% discount given to senior
citizens as a tax deduction; that the DSWD and the DOF be
prohibited from enforcing the same; and that the tax
credit treatment of the 20% discount under the former
Section 4 (a) of RA 7432 be reinstated.

They assert that "[a]lthough both police power and the

power of eminent domain have the general welfare for
their object, there are still traditional distinctions between
the two"18 and that "eminent domain cannot be made less
supreme than police power."19

Issues

Petitioners also contend that the tax deduction scheme

violates Article XV, Section 421 and Article XIII, Section
1122 of the Constitution because it shifts the States
constitutional mandate or duty of improving the welfare of
the elderly to the private sector.23

Petitioners raise the following issues:

A.
WHETHER THE PETITION PRESENTS AN ACTUAL CASE OR
CONTROVERSY.
B.
WHETHER SECTION 4 OF REPUBLIC ACT NO. 9257 AND X X
X ITS IMPLEMENTING RULES AND REGULATIONS, INSOFAR
AS THEY PROVIDE THAT THE TWENTY PERCENT (20%)
DISCOUNT TO SENIOR CITIZENS MAY BE CLAIMED AS A
TAX DEDUCTION BY THE PRIVATE ESTABLISHMENTS, ARE
INVALID AND UNCONSTITUTIONAL.9
Petitioners Arguments
Petitioners emphasize that they are not questioning the
20% discount granted to senior citizens but are only
assailing the constitutionality of the tax deduction scheme
prescribed under RA 9257 and the implementing rules and
regulations issued by the DSWD and the DOF.10
Petitioners posit that the tax deduction scheme
contravenes Article III, Section 9 of the Constitution, which
provides that: "[p]rivate property shall not be taken for
public use without just compensation."11
In support of their position, petitioners cite Central Luzon
Drug Corporation,12 where it was ruled that the 20%
discount privilege constitutes taking of private property for
public use which requires the payment of just
compensation,13 and Carlos Superdrug Corporation v.
Department of Social Welfare and Development,14 where
it was acknowledged that the tax deduction scheme does
not meet the definition of just compensation.15

Petitioners further claim that the legislature, in amending

RA 7432, relied on an erroneous contemporaneous
construction that prior payment of taxes is required for tax
credit.20

Under the tax deduction scheme, the private sector

shoulders 65% of the discount because only 35%24 of it is
actually returned by the government.25
Consequently, the implementation of the tax deduction
scheme prescribed under Section 4 of RA 9257 affects the
businesses of petitioners.26
Thus, there exists an actual case or controversy of
transcendental importance which deserves judicious
disposition on the merits by the highest court of the
land.27
Respondents Arguments
Respondents, on the other hand, question the filing of the
instant Petition directly with the Supreme Court as this
disregards the hierarchy of courts.28
They likewise assert that there is no justiciable controversy
as petitioners failed to prove that the tax deduction
treatment is not a "fair and full equivalent of the loss
sustained" by them.29
As to the constitutionality of RA 9257 and its implementing
rules and regulations, respondents contend that
petitioners failed to overturn its presumption of
constitutionality.30
More important, respondents maintain that the tax
deduction scheme is a legitimate exercise of the States
police power.31
Our Ruling

Petitioners likewise seek a reversal of the ruling in Carlos

Superdrug Corporation16 that the tax deduction scheme
adopted by the government is justified by police power.17

The Petition lacks merit.

There exists an actual case or controversy.

51

We shall first resolve the procedural issue. When the

constitutionality of a law is put in issue, judicial review
may be availed of only if the following requisites concur:
"(1) the existence of an actual and appropriate case; (2)
the existence of personal and substantial interest on the
part of the party raising the [question of constitutionality];
(3) recourse to judicial review is made at the earliest
opportunity; and (4) the [question of constitutionality] is
the lis mota of the case."32
In this case, petitioners are challenging the
constitutionality of the tax deduction scheme provided in
RA 9257 and the implementing rules and regulations
issued by the DSWD and the DOF. Respondents, however,
oppose the Petition on the ground that there is no actual
case or controversy. We do not agree with respondents.
An actual case or controversy exists when there is "a
conflict of legal rights" or "an assertion of opposite legal
claims susceptible of judicial resolution."33
The Petition must therefore show that "the governmental
act being challenged has a direct adverse effect on the
individual challenging it."34
In this case, the tax deduction scheme challenged by
petitioners has a direct adverse effect on them. Thus, it
cannot be denied that there exists an actual case or
controversy.
The validity of the 20% senior citizen discount and tax
deduction scheme under RA 9257, as an exercise of police
power of the State, has already been settled in Carlos
Superdrug Corporation.
Petitioners posit that the resolution of this case lies in the
determination of whether the legally mandated 20%
senior citizen discount is an exercise of police power or
eminent domain. If it is police power, no just
compensation is warranted. But if it is eminent domain,
the tax deduction scheme is unconstitutional because it is
not a peso for peso reimbursement of the 20% discount
given to senior citizens. Thus, it constitutes taking of
private property without payment of just compensation.
At the outset, we note that this question has been settled
in Carlos Superdrug Corporation.35
In that case, we ruled:
Petitioners assert that Section 4(a) of the law is
unconstitutional because it constitutes deprivation of
private property. Compelling drugstore owners and
establishments to grant the discount will result in a loss of
profit and capital because 1) drugstores impose a mark-up
of only 5% to 10% on branded medicines; and 2) the law
failed to provide a scheme whereby drugstores will be
justly compensated for the discount. Examining
petitioners arguments, it is apparent that what petitioners

are ultimately questioning is the validity of the tax

deduction scheme as a reimbursement mechanism for the
twenty percent (20%) discount that they extend to senior
citizens. Based on the afore-stated DOF Opinion, the tax
deduction scheme does not fully reimburse petitioners for
the discount privilege accorded to senior citizens. This is
because the discount is treated as a deduction, a taxdeductible expense that is subtracted from the gross
income and results in a lower taxable income. Stated
otherwise, it is an amount that is allowed by law to reduce
the income prior to the application of the tax rate to
compute the amount of tax which is due. Being a tax
deduction, the discount does not reduce taxes owed on a
peso for peso basis but merely offers a fractional reduction
in taxes owed. Theoretically, the treatment of the discount
as a deduction reduces the net income of the private
establishments concerned. The discounts given would
have entered the coffers and formed part of the gross
sales of the private establishments, were it not for R.A. No.
9257. The permanent reduction in their total revenues is a
forced subsidy corresponding to the taking of private
property for public use or benefit. This constitutes
compensable taking for which petitioners would ordinarily
become entitled to a just compensation. Just
compensation is defined as the full and fair equivalent of
the property taken from its owner by the expropriator.
The measure is not the takers gain but the owners loss.
The word just is used to intensify the meaning of the word
compensation, and to convey the idea that the equivalent
to be rendered for the property to be taken shall be real,
substantial, full and ample. A tax deduction does not offer
full reimbursement of the senior citizen discount. As such,
it would not meet the definition of just compensation.
Having said that, this raises the question of whether the
State, in promoting the health and welfare of a special
group of citizens, can impose upon private establishments
the burden of partly subsidizing a government program.
The Court believes so. The Senior Citizens Act was enacted
primarily to maximize the contribution of senior citizens to
nation-building, and to grant benefits and privileges to
them for their improvement and well-being as the State
considers them an integral part of our society. The priority
given to senior citizens finds its basis in the Constitution as
set forth in the law itself. Thus, the Act provides: SEC. 2.
Republic Act No. 7432 is hereby amended to read as
follows:
SECTION 1. Declaration of Policies and Objectives.
Pursuant to Article XV, Section 4 of the Constitution, it is
the duty of the family to take care of its elderly members
while the State may design programs of social security for
them. In addition to this, Section 10 in the Declaration of
Principles and State Policies provides: "The State shall
provide social justice in all phases of national
development." Further, Article XIII, Section 11, provides:
"The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to
make essential goods, health and other social services

52

available to all the people at affordable cost. There shall

be priority for the needs of the underprivileged sick,
elderly, disabled, women and children." Consonant with
these constitutional principles the following are the
declared policies of this Act:

(f) To recognize the important role of the private sector in

the improvement of the welfare of senior citizens and to
actively seek their partnership.
To implement the above policy, the law grants a twenty
percent discount to senior citizens for medical and dental
services, and diagnostic and laboratory fees; admission
fees charged by theaters, concert halls, circuses, carnivals,
and other similar places of culture, leisure and
amusement; fares for domestic land, air and sea travel;
utilization of services in hotels and similar lodging
establishments, restaurants and recreation centers; and
purchases of medicines for the exclusive use or enjoyment
of senior citizens. As a form of reimbursement, the law
provides that business establishments extending the
twenty percent discount to senior citizens may claim the
discount as a tax deduction. The law is a legitimate
exercise of police power which, similar to the power of
eminent domain, has general welfare for its object. Police
power is not capable of an exact definition, but has been
purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide
enough room for an efficient and flexible response to
conditions and circumstances, thus assuring the greatest
benefits. Accordingly, it has been described as "the most
essential, insistent and the least limitable of powers,
extending as it does to all the great public needs." It is
"[t]he power vested in the legislature by the constitution
to make, ordain, and establish all manner of wholesome
and reasonable laws, statutes, and ordinances, either with
penalties or without, not repugnant to the constitution, as
they shall judge to be for the good and welfare of the
commonwealth, and of the subjects of the same." For this
reason, when the conditions so demand as determined by
the legislature, property rights must bow to the primacy of
police power because property rights, though sheltered by
due process, must yield to general welfare. Police power
as an attribute to promote the common good would be
diluted considerably if on the mere plea of petitioners that
they will suffer loss of earnings and capital, the questioned
provision is invalidated. Moreover, in the absence of
evidence demonstrating the alleged confiscatory effect of
the provision in question, there is no basis for its
nullification in view of the presumption of validity which
every law has in its favor. Given these, it is incorrect for
petitioners to insist that the grant of the senior citizen
discount is unduly oppressive to their business, because
petitioners have not taken time to calculate correctly and
come up with a financial report, so that they have not
been able to show properly whether or not the tax

deduction scheme really works greatly to their

disadvantage. In treating the discount as a tax deduction,
petitioners insist that they will incur losses because,
referring to the DOF Opinion, for every P1.00 senior citizen
discount that petitioners would give, P0.68 will be
shouldered by them as only P0.32 will be refunded by the
government by way of a tax deduction. To illustrate this
point, petitioner Carlos Super Drug cited the antihypertensive maintenance drug Norvasc as an example.
According to the latter, it acquires Norvasc from the
distributors at P37.57 per tablet, and retails it at P39.60 (or
at a margin of 5%). If it grants a 20% discount to senior
citizens or an amount equivalent to P7.92, then it would
have to sell Norvasc at P31.68 which translates to a loss
from capital of P5.89 per tablet. Even if the government
will allow a tax deduction, only P2.53 per tablet will be
refunded and not the full amount of the discount which
is P7.92. In short, only 32% of the 20% discount will be
reimbursed to the drugstores. Petitioners computation is
flawed. For purposes of reimbursement, the law states
that the cost of the discount shall be deducted from gross
income, the amount of income derived from all sources
before deducting allowable expenses, which will result in
net income. Here, petitioners tried to show a loss on a per
transaction basis, which should not be the case. An income
statement, showing an accounting of petitioners' sales,
expenses, and net profit (or loss) for a given period could
have accurately reflected the effect of the discount on
their income. Absent any financial statement, petitioners
cannot substantiate their claim that they will be operating
at a loss should they give the discount. In addition, the
computation was erroneously based on the assumption
that their customers consisted wholly of senior citizens.
Lastly, the 32% tax rate is to be imposed on income, not
on the amount of the discount.
Furthermore, it is unfair for petitioners to criticize the law
because they cannot raise the prices of their medicines
given the cutthroat nature of the players in the industry. It
is a business decision on the part of petitioners to peg the
mark-up at 5%. Selling the medicines below acquisition
cost, as alleged by petitioners, is merely a result of this
decision. Inasmuch as pricing is a property right,
petitioners cannot reproach the law for being oppressive,
simply because they cannot afford to raise their prices for
fear of losing their customers to competition. The Court is
not oblivious of the retail side of the pharmaceutical
industry and the competitive pricing component of the
business. While the Constitution protects property rights,
petitioners must accept the realities of business and the
State, in the exercise of police power, can intervene in the
operations of a business which may result in an
impairment of property rights in the process.
Moreover, the right to property has a social dimension.
While Article XIII of the Constitution provides the precept
for the protection of property, various laws and
jurisprudence, particularly on agrarian reform and the

53

regulation of contracts and public utilities, continuously

serve as x x x reminder[s] that the right to property can be
relinquished upon the command of the State for the
promotion of public good. Undeniably, the success of the
senior citizens program rests largely on the support
imparted by petitioners and the other private
establishments concerned. This being the case, the means
employed in invoking the active participation of the
private sector, in order to achieve the purpose or objective
of the law, is reasonably and directly related. Without
sufficient proof that Section 4 (a) of R.A. No. 9257 is
arbitrary, and that the continued implementation of the
same would be unconscionably detrimental to petitioners,
the Court will refrain from quashing a legislative
act.36 (Bold in the original; underline supplied)
We, thus, found that the 20% discount as well as the tax
deduction scheme is a valid exercise of the police power of
the State.
No compelling reason has been proffered to overturn,
modify or abandon the ruling in Carlos Superdrug
Corporation.
Petitioners argue that we have previously ruled in Central
Luzon Drug Corporation37 that the 20% discount is an
exercise of the power of eminent domain, thus, requiring
the payment of just compensation. They urge us to reexamine our ruling in Carlos Superdrug
Corporation38 which allegedly reversed the ruling in
Central Luzon Drug Corporation.39
They also point out that Carlos Superdrug
Corporation40 recognized that the tax deduction scheme
under the assailed law does not provide for sufficient just
compensation. We agree with petitioners observation
that there are statements in Central Luzon Drug
Corporation41 describing the 20% discount as an exercise
of the power of eminent domain, viz.:
[T]he privilege enjoyed by senior citizens does not come
directly from the State, but rather from the private
establishments concerned. Accordingly, the tax credit
benefit granted to these establishments can be deemed as
their just compensation for private property taken by the
State for public use. The concept of public use is no longer
confined to the traditional notion of use by the public, but
held synonymous with public interest, public benefit,
public welfare, and public convenience. The discount
privilege to which our senior citizens are entitled is
actually a benefit enjoyed by the general public to which
these citizens belong. The discounts given would have
entered the coffers and formed part of the gross sales of
the private establishments concerned, were it not for RA
7432. The permanent reduction in their total revenues is a
forced subsidy corresponding to the taking of private
property for public use or benefit. As a result of the 20

percent discount imposed by RA 7432, respondent

becomes entitled to a just compensation. This term refers
not only to the issuance of a tax credit certificate
indicating the correct amount of the discounts given, but
also to the promptness in its release. Equivalent to the
payment of property taken by the State, such issuance
when not done within a reasonable time from the grant of
the discounts cannot be considered as just
compensation. In effect, respondent is made to suffer the
consequences of being immediately deprived of its
revenues while awaiting actual receipt, through the
certificate, of the equivalent amount it needs to cope with
the reduction in its revenues. Besides, the taxation power
can also be used as an implement for the exercise of the
power of eminent domain. Tax measures are but
"enforced contributions exacted on pain of penal
sanctions" and "clearly imposed for a public purpose." In
recent years, the power to tax has indeed become a most
effective tool to realize social justice, public welfare, and
the equitable distribution of wealth. While it is a declared
commitment under Section 1 of RA 7432, social justice
"cannot be invoked to trample on the rights of property
owners who under our Constitution and laws are also
entitled to protection. The social justice consecrated in our
[C]onstitution [is] not intended to take away rights from a
person and give them to another who is not entitled
thereto." For this reason, a just compensation for income
that is taken away from respondent becomes necessary. It
is in the tax credit that our legislators find support to
realize social justice, and no administrative body can alter
that fact. To put it differently, a private establishment that
merely breaks even without the discounts yet will
surely start to incur losses because of such discounts. The
same effect is expected if its mark-up is less than 20
percent, and if all its sales come from retail purchases by
senior citizens. Aside from the observation we have
already raised earlier, it will also be grossly unfair to an
establishment if the discounts will be treated merely as
deductions from either its gross income or its gross sales.
Operating at a loss through no fault of its own, it will
realize that the tax credit limitation under RR 2-94 is
inutile, if not improper. Worse, profit-generating
businesses will be put in a better position if they avail
themselves of tax credits denied those that are losing,
because no taxes are due from the latter.42 (Italics in the
original; emphasis supplied)
The above was partly incorporated in our ruling in Carlos
Superdrug Corporation43 when we stated preliminarily
that
Petitioners assert that Section 4(a) of the law is
unconstitutional because it constitutes deprivation of
private property. Compelling drugstore owners and
establishments to grant the discount will result in a loss of
profit and capital because 1) drugstores impose a mark-up
of only 5% to 10% on branded medicines; and 2) the law
failed to provide a scheme whereby drugstores will be

54

justly compensated for the discount. Examining

petitioners arguments, it is apparent that what petitioners
are ultimately questioning is the validity of the tax
deduction scheme as a reimbursement mechanism for the
twenty percent (20%) discount that they extend to senior
citizens. Based on the afore-stated DOF Opinion, the tax
deduction scheme does not fully reimburse petitioners for
the discount privilege accorded to senior citizens. This is
because the discount is treated as a deduction, a taxdeductible expense that is subtracted from the gross
income and results in a lower taxable income. Stated
otherwise, it is an amount that is allowed by law to reduce
the income prior to the application of the tax rate to
compute the amount of tax which is due. Being a tax
deduction, the discount does not reduce taxes owed on a
peso for peso basis but merely offers a fractional reduction
in taxes owed. Theoretically, the treatment of the discount
as a deduction reduces the net income of the private
establishments concerned. The discounts given would
have entered the coffers and formed part of the gross
sales of the private establishments, were it not for R.A. No.
9257. The permanent reduction in their total revenues is a
forced subsidy corresponding to the taking of private
property for public use or benefit. This constitutes
compensable taking for which petitioners would ordinarily
become entitled to a just compensation. Just
compensation is defined as the full and fair equivalent of
the property taken from its owner by the expropriator.
The measure is not the takers gain but the owners loss.
The word just is used to intensify the meaning of the word
compensation, and to convey the idea that the equivalent
to be rendered for the property to be taken shall be real,
substantial, full and ample. A tax deduction does not offer
full reimbursement of the senior citizen discount. As such,
it would not meet the definition of just compensation.
Having said that, this raises the question of whether the
State, in promoting the health and welfare of a special
group of citizens, can impose upon private establishments
the burden of partly subsidizing a government program.
The Court believes so.44
This, notwithstanding, we went on to rule in Carlos
Superdrug Corporation45 that the 20% discount and tax
deduction scheme is a valid exercise of the police power of
the State. The present case, thus, affords an opportunity
for us to clarify the above-quoted statements in Central
Luzon Drug Corporation46 and Carlos Superdrug
Corporation.47
First, we note that the above-quoted disquisition on
eminent domain in Central Luzon Drug
Corporation48 is obiter dicta and, thus, not binding
precedent. As stated earlier, in Central Luzon Drug
Corporation,49 we ruled that the BIR acted ultra vires when
it effectively treated the 20% discount as a tax deduction,
under Sections 2.i and 4 of RR No. 2-94, despite the clear
wording of the previous law that the same should be
treated as a tax credit. We were, therefore, not

confronted in that case with the issue as to whether the

20% discount is an exercise of police power or eminent
domain. Second, although we adverted to Central Luzon
Drug Corporation50 in our ruling in Carlos Superdrug
Corporation,51 this referred only to preliminary matters. A
fair reading of Carlos Superdrug Corporation52 would show
that we categorically ruled therein that the 20% discount is
a valid exercise of police power. Thus, even if the current
law, through its tax deduction scheme (which abandoned
the tax credit scheme under the previous law), does not
provide for a peso for peso reimbursement of the 20%
discount given by private establishments, no constitutional
infirmity obtains because, being a valid exercise of police
power, payment of just compensation is not warranted.
We have carefully reviewed the basis of our ruling in
Carlos Superdrug Corporation53 and we find no cogent
reason to overturn, modify or abandon it. We also note
that petitioners arguments are a mere reiteration of those
raised and resolved in Carlos Superdrug
Corporation.54 Thus, we sustain Carlos Superdrug
Corporation.55
Nonetheless, we deem it proper, in what follows, to
amplify our explanation in Carlos Superdrug
Corporation56 as to why the 20% discount is a valid
exercise of police power and why it may not, under the
specific circumstances of this case, be considered as an
exercise of the power of eminent domain contrary to the
obiter in Central Luzon Drug Corporation.57
Police power versus eminent domain.
Police power is the inherent power of the State to regulate
or to restrain the use of liberty and property for public
welfare.58
The only limitation is that the restriction imposed should
be reasonable, not oppressive.59
In other words, to be a valid exercise of police power, it
must have a lawful subject or objective and a lawful
method of accomplishing the goal.60
Under the police power of the State, "property rights of
individuals may be subjected to restraints and burdens in
order to fulfill the objectives of the government."61
The State "may interfere with personal liberty, property,
lawful businesses and occupations to promote the general
welfare [as long as] the interference [is] reasonable and
not arbitrary."62
Eminent domain, on the other hand, is the inherent power
of the State to take or appropriate private property for
public use.63

55

The Constitution, however, requires that private property

shall not be taken without due process of law and the
payment of just compensation.64
Traditional distinctions exist between police power and
eminent domain. In the exercise of police power, a
property right is impaired by regulation,65 or the use of
property is merely prohibited, regulated or restricted66 to
promote public welfare. In such cases, there is no
compensable taking, hence, payment of just compensation
is not required. Examples of these regulations are property
condemned for being noxious or intended for noxious
purposes (e.g., a building on the verge of collapse to be
demolished for public safety, or obscene materials to be
destroyed in the interest of public morals)67 as well as
zoning ordinances prohibiting the use of property for
purposes injurious to the health, morals or safety of the
community (e.g., dividing a citys territory into residential
and industrial areas).68
It has, thus, been observed that, in the exercise of police
power (as distinguished from eminent domain), although
the regulation affects the right of ownership, none of the
bundle of rights which constitute ownership is
appropriated for use by or for the benefit of the public.69
On the other hand, in the exercise of the power of
eminent domain, property interests are appropriated and
applied to some public purpose which necessitates the
payment of just compensation therefor. Normally, the title
to and possession of the property are transferred to the
expropriating authority. Examples include the acquisition
of lands for the construction of public highways as well as
agricultural lands acquired by the government under the
agrarian reform law for redistribution to qualified farmer
beneficiaries. However, it is a settled rule that the
acquisition of title or total destruction of the property is
not essential for "taking" under the power of eminent
domain to be present.70
Examples of these include establishment of easements
such as where the land owner is perpetually deprived of
his proprietary rights because of the hazards posed by
electric transmission lines constructed above his
property71 or the compelled interconnection of the
telephone system between the government and a private
company.72
In these cases, although the private property owner is not
divested of ownership or possession, payment of just
compensation is warranted because of the burden placed
on the property for the use or benefit of the public.
The 20% senior citizen discount is an exercise of police
power.

It may not always be easy to determine whether a

challenged governmental act is an exercise of police power
or eminent domain. The very nature of police power as
elastic and responsive to various social conditions73 as well
as the evolving meaning and scope of public use74 and just
compensation75 in eminent domain evinces that these are
not static concepts. Because of the exigencies of rapidly
changing times, Congress may be compelled to adopt or
experiment with different measures to promote the
general welfare which may not fall squarely within the
traditionally recognized categories of police power and
eminent domain. The judicious approach, therefore, is to
look at the nature and effects of the challenged
governmental act and decide, on the basis thereof,
whether the act is the exercise of police power or eminent
domain. Thus, we now look at the nature and effects of
the 20% discount to determine if it constitutes an exercise
of police power or eminent domain. The 20% discount is
intended to improve the welfare of senior citizens who, at
their age, are less likely to be gainfully employed, more
prone to illnesses and other disabilities, and, thus, in need
of subsidy in purchasing basic commodities. It may not be
amiss to mention also that the discount serves to honor
senior citizens who presumably spent the productive years
of their lives on contributing to the development and
progress of the nation. This distinct cultural Filipino
practice of honoring the elderly is an integral part of this
law. As to its nature and effects, the 20% discount is a
regulation affecting the ability of private establishments to
price their products and services relative to a special class
of individuals, senior citizens, for which the Constitution
affords preferential concern.76
In turn, this affects the amount of profits or income/gross
sales that a private establishment can derive from senior
citizens. In other words, the subject regulation affects the
pricing, and, hence, the profitability of a private
establishment. However, it does not purport to
appropriate or burden specific properties, used in the
operation or conduct of the business of private
establishments, for the use or benefit of the public, or
senior citizens for that matter, but merely regulates the
pricing of goods and services relative to, and the amount
of profits or income/gross sales that such private
establishments may derive from, senior citizens. The
subject regulation may be said to be similar to, but with
substantial distinctions from, price control or rate of
return on investment control laws which are traditionally
regarded as police power measures.77
These laws generally regulate public utilities or
industries/enterprises imbued with public interest in order
to protect consumers from exorbitant or unreasonable
pricing as well as temper corporate greed by controlling
the rate of return on investment of these corporations
considering that they have a monopoly over the goods or
services that they provide to the general public. The
subject regulation differs therefrom in that (1) the

56

discount does not prevent the establishments from

adjusting the level of prices of their goods and services,
and (2) the discount does not apply to all customers of a
given establishment but only to the class of senior citizens.
Nonetheless, to the degree material to the resolution of
this case, the 20% discount may be properly viewed as
belonging to the category of price regulatory measures
which affect the profitability of establishments subjected
thereto. On its face, therefore, the subject regulation is a
police power measure. The obiter in Central Luzon Drug
Corporation,78 however, describes the 20% discount as an
exercise of the power of eminent domain and the tax
credit, under the previous law, equivalent to the amount
of discount given as the just compensation therefor. The
reason is that (1) the discount would have formed part of
the gross sales of the establishment were it not for the law
prescribing the 20% discount, and (2) the permanent
reduction in total revenues is a forced subsidy
corresponding to the taking of private property for public
use or benefit. The flaw in this reasoning is in its premise.
It presupposes that the subject regulation, which impacts
the pricing and, hence, the profitability of a private
establishment, automatically amounts to a deprivation of
property without due process of law. If this were so, then
all price and rate of return on investment control laws
would have to be invalidated because they impact, at
some level, the regulated establishments profits or
income/gross sales, yet there is no provision for payment
of just compensation. It would also mean that overnment
cannot set price or rate of return on investment limits,
which reduce the profits or income/gross sales of private
establishments, if no just compensation is paid even if the
measure is not confiscatory. The obiter is, thus, at odds
with the settled octrine that the State can employ police
power measures to regulate the pricing of goods and
services, and, hence, the profitability of business
establishments in order to pursue legitimate State
objectives for the common good, provided that the
regulation does not go too far as to amount to "taking."79
In City of Manila v. Laguio, Jr.,80 we recognized that x x x
a taking also could be found if government regulation of
the use of property went "too far." When regulation
reaches a certain magnitude, in most if not in all cases
there must be an exercise of eminent domain and
compensation to support the act. While property may be
regulated to a certain extent, if regulation goes too far it
will be recognized as a taking. No formula or rule can be
devised to answer the questions of what is too far and
when regulation becomes a taking. In Mahon, Justice
Holmes recognized that it was "a question of degree and
therefore cannot be disposed of by general propositions."
On many other occasions as well, the U.S. Supreme Court
has said that the issue of when regulation constitutes a
taking is a matter of considering the facts in each case. The
Court asks whether justice and fairness require that the
economic loss caused by public action must be
compensated by the government and thus borne by the

public as a whole, or whether the loss should remain

concentrated on those few persons subject to the public
action.81
The impact or effect of a regulation, such as the one under
consideration, must, thus, be determined on a case-tocase basis. Whether that line between permissible
regulation under police power and "taking" under eminent
domain has been crossed must, under the specific
circumstances of this case, be subject to proof and the one
assailing the constitutionality of the regulation carries the
heavy burden of proving that the measure is
unreasonable, oppressive or confiscatory. The timehonored rule is that the burden of proving the
unconstitutionality of a law rests upon the one assailing it
and "the burden becomes heavier when police power is at
issue."82
The 20% senior citizen discount has not been shown to be
unreasonable, oppressive or confiscatory.
In Alalayan v. National Power Corporation,83 petitioners,
who were franchise holders of electric plants, challenged
the validity of a law limiting their allowable net profits to
no more than 12% per annum of their investments plus
two-month operating expenses. In rejecting their plea, we
ruled that, in an earlier case, it was found that 12% is a
reasonable rate of return and that petitioners failed to
prove that the aforesaid rate is confiscatory in view of the
presumption of constitutionality.84
We adopted a similar line of reasoning in Carlos Superdrug
Corporation85 when we ruled that petitioners therein
failed to prove that the 20% discount is arbitrary,
oppressive or confiscatory. We noted that no evidence,
such as a financial report, to establish the impact of the
20% discount on the overall profitability of petitioners was
presented in order to show that they would be operating
at a loss due to the subject regulation or that the
continued implementation of the law would be
unconscionably detrimental to the business operations of
petitioners. In the case at bar, petitioners proceeded with
a hypothetical computation of the alleged loss that they
will suffer similar to what the petitioners in Carlos
Superdrug Corporation86 did. Petitioners went directly to
this Court without first establishing the factual bases of
their claims. Hence, the present recourse must, likewise,
fail. Because all laws enjoy the presumption of
constitutionality, courts will uphold a laws validity if any
set of facts may be conceived to sustain it.87
On its face, we find that there are at least two conceivable
bases to sustain the subject regulations validity absent
clear and convincing proof that it is unreasonable,
oppressive or confiscatory. Congress may have legitimately
concluded that business establishments have the capacity
to absorb a decrease in profits or income/gross sales due

57

to the 20% discount without substantially affecting the

reasonable rate of return on their investments considering
(1) not all customers of a business establishment are
senior citizens and (2) the level of its profit margins on
goods and services offered to the general public.
Concurrently, Congress may have, likewise, legitimately
concluded that the establishments, which will be required
to extend the 20% discount, have the capacity to revise
their pricing strategy so that whatever reduction in profits
or income/gross sales that they may sustain because of
sales to senior citizens, can be recouped through higher
mark-ups or from other products not subject of discounts.
As a result, the discounts resulting from sales to senior
citizens will not be confiscatory or unduly oppressive. In
sum, we sustain our ruling in Carlos Superdrug
Corporation88 that the 20% senior citizen discount and tax
deduction scheme are valid exercises of police power of
the State absent a clear showing that it is arbitrary,
oppressive or confiscatory.
Conclusion
In closing, we note that petitioners hypothesize, consistent
with our previous ratiocinations, that the discount will
force establishments to raise their prices in order to
compensate for its impact on overall profits or
income/gross sales. The general public, or those not
belonging to the senior citizen class, are, thus, made to
effectively shoulder the subsidy for senior citizens. This, in
petitioners view, is unfair.
As already mentioned, Congress may be reasonably
assumed to have foreseen this eventuality. But, more
importantly, this goes into the wisdom, efficacy and
expediency of the subject law which is not proper for
judicial review. In a way, this law pursues its social equity
objective in a non-traditional manner unlike past and
existing direct subsidy programs of the government for the
poor and marginalized sectors of our society. Verily,
Congress must be given sufficient leeway in formulating
welfare legislations given the enormous challenges that
the government faces relative to, among others, resource
adequacy and administrative capability in implementing
social reform measures which aim to protect and uphold
the interests of those most vulnerable in our society. In
the process, the individual, who enjoys the rights, benefits
and privileges of living in a democratic polity, must bear
his share in supporting measures intended for the
common good. This is only fair. In fine, without the
requisite showing of a clear and unequivocal breach of the
Constitution, the validity of the assailed law must be
sustained.
Refutation of the Dissent
The main points of Justice Carpios Dissent may be
summarized as follows: (1) the discussion on eminent

domain in Central Luzon Drug Corporation89 is not obiter

dicta ; (2) allowable taking, in police power, is limited to
property that is destroyed or placed outside the
commerce of man for public welfare; (3) the amount of
mandatory discount is private property within the ambit of
Article III, Section 990 of the Constitution; and (4) the
permanent reduction in a private establishments total
revenue, arising from the mandatory discount, is a taking
of private property for public use or benefit, hence, an
exercise of the power of eminent domain requiring the
payment of just compensation. I We maintain that the
discussion on eminent domain in Central Luzon Drug
Corporation91 is obiter dicta. As previously discussed, in
Central Luzon Drug Corporation,92 the BIR, pursuant to
Sections 2.i and 4 of RR No. 2-94, treated the senior citizen
discount in the previous law, RA 7432, as a tax deduction
instead of a tax credit despite the clear provision in that
law which stated
SECTION 4. Privileges for the Senior Citizens. The senior
citizens shall be entitled to the following:
a) The grant of twenty percent (20%) discount from all
establishments relative to utilization of transportation
services, hotels and similar lodging establishment,
restaurants and recreation centers and purchase of
medicines anywhere in the country: Provided, That private
establishments may claim the cost as tax credit; (Emphasis
supplied)
Thus, the Court ruled that the subject revenue regulation
violated the law, viz:
The 20 percent discount required by the law to be given to
senior citizens is a tax credit, not merely a tax deduction
from the gross income or gross sale of the establishment
concerned. A tax credit is used by a private establishment
only after the tax has been computed; a tax deduction,
before the tax is computed. RA 7432 unconditionally
grants a tax credit to all covered entities. Thus, the
provisions of the revenue regulation that withdraw or
modify such grant are void. Basic is the rule that
administrative regulations cannot amend or revoke the
law.93
As can be readily seen, the discussion on eminent domain
was not necessary in order to arrive at this conclusion. All
that was needed was to point out that the revenue
regulation contravened the law which it sought to
implement. And, precisely, this was done in Central Luzon
Drug Corporation94 by comparing the wording of the
previous law vis--vis the revenue regulation; employing
the rules of statutory construction; and applying the
settled principle that a regulation cannot amend the law it
seeks to implement. A close reading of Central Luzon Drug
Corporation95 would show that the Court went on to state
that the tax credit "can be deemed" as just compensation

58

only to explain why the previous law provides for a tax

credit instead of a tax deduction. The Court surmised that
the tax credit was a form of just compensation given to the
establishments covered by the 20% discount. However,
the reason why the previous law provided for a tax credit
and not a tax deduction was not necessary to resolve the
issue as to whether the revenue regulation contravenes
the law. Hence, the discussion on eminent domain is obiter
dicta.

and provided a hypothetical computation of the loss they

would allegedly suffer due to the operation of the assailed
law. The central premise of the Dissents argument that
the 20% discount results in a permanent reduction in
profits or income/gross sales, or forces a business
establishment to operate at a loss is, thus, wholly
unsupported by competent evidence. To be sure, the
Court can invalidate a law which, on its face, is arbitrary,
oppressive or confiscatory.97

A court, in resolving cases before it, may look into the

possible purposes or reasons that impelled the enactment
of a particular statute or legal provision. However,
statements made relative thereto are not always
necessary in resolving the actual controversies presented
before it. This was the case in Central Luzon Drug
Corporation96resulting in that unfortunate statement that
the tax credit "can be deemed" as just compensation. This,
in turn, led to the erroneous conclusion, by deductive
reasoning, that the 20% discount is an exercise of the
power of eminent domain. The Dissent essentially adopts
this theory and reasoning which, as will be shown below, is
contrary to settled principles in police power and eminent
domain analysis. II The Dissent discusses at length the
doctrine on "taking" in police power which occurs when
private property is destroyed or placed outside the
commerce of man. Indeed, there is a whole class of police
power measures which justify the destruction of private
property in order to preserve public health, morals, safety
or welfare. As earlier mentioned, these would include a
building on the verge of collapse or confiscated obscene
materials as well as those mentioned by the Dissent with
regard to property used in violating a criminal statute or
one which constitutes a nuisance. In such cases, no
compensation is required. However, it is equally true that
there is another class of police power measures which do
not involve the destruction of private property but merely
regulate its use. The minimum wage law, zoning
ordinances, price control laws, laws regulating the
operation of motels and hotels, laws limiting the working
hours to eight, and the like would fall under this category.
The examples cited by the Dissent, likewise, fall under this
category: Article 157 of the Labor Code, Sections 19 and 18
of the Social Security Law, and Section 7 of the Pag-IBIG
Fund Law. These laws merely regulate or, to use the term
of the Dissent, burden the conduct of the affairs of
business establishments. In such cases, payment of just
compensation is not required because they fall within the
sphere of permissible police power measures. The senior
citizen discount law falls under this latter category. III The
Dissent proceeds from the theory that the permanent
reduction of profits or income/gross sales, due to the 20%
discount, is a "taking" of private property for public
purpose without payment of just compensation. At the
outset, it must be emphasized that petitioners never
presented any evidence to establish that they were forced
to suffer enormous losses or operate at a loss due to the
effects of the assailed law. They came directly to this Court

But this is not the case here.

In the case at bar, evidence is indispensable before a
determination of a constitutional violation can be made
because of the following reasons. First, the assailed law, by
imposing the senior citizen discount, does not take any of
the properties used by a business establishment like, say,
the land on which a manufacturing plant is constructed or
the equipment being used to produce goods or services.
Second, rather than taking specific properties of a business
establishment, the senior citizen discount law merely
regulates the prices of the goods or services being sold to
senior citizens by mandating a 20% discount. Thus, if a
product is sold at P10.00 to the general public, then it shall
be sold at P8.00 ( i.e., P10.00 less 20%) to senior citizens.
Note that the law does not impose at what specific price
the product shall be sold, only that a 20% discount shall be
given to senior citizens based on the price set by the
business establishment. A business establishment is, thus,
free to adjust the prices of the goods or services it
provides to the general public. Accordingly, it can increase
the price of the above product to P20.00 but is required to
sell it at P16.00 (i.e. , P20.00 less 20%) to senior citizens.
Third, because the law impacts the prices of the goods or
services of a particular establishment relative to its sales to
senior citizens, its profits or income/gross sales are
affected. The extent of the impact would, however,
depend on the profit margin of the business establishment
on a particular good or service. If a product costs P5.00 to
produce and is sold at P10.00, then the
profit98 is P5.0099 or a profit margin100 of 50%.101
Under the assailed law, the aforesaid product would have
to be sold at P8.00 to senior citizens yet the business
would still earn P3.00102 or a 30%103 profit margin. On the
other hand, if the product costs P9.00 to produce and is
required to be sold at P8.00 to senior citizens, then the
business would experience a loss of P1.00.104
But note that since not all customers of a business
establishment are senior citizens, the business
establishment may continue to earn P1.00 from nonsenior citizens which, in turn, can offset any loss arising
from sales to senior citizens.

59

Fourth, when the law imposes the 20% discount in favor of

senior citizens, it does not prevent the business
establishment from revising its pricing strategy.
By revising its pricing strategy, a business establishment
can recoup any reduction of profits or income/gross sales
which would otherwise arise from the giving of the 20%
discount. To illustrate, suppose A has two customers: X, a
senior citizen, and Y, a non-senior citizen. Prior to the law,
A sells his products at P10.00 a piece to X and Y resulting in
income/gross sales of P20.00 (P10.00 + P10.00). With the
passage of the law, A must now sell his product to X
at P8.00 (i.e., P10.00 less 20%) so that his income/gross
sales would be P18.00 (P8.00 +P10.00) or lower by P2.00.
To prevent this from happening, A decides to increase the
price of his products toP11.11 per piece. Thus, he sells his
product to X at P8.89 (i.e. , P11.11 less 20%) and to Y
at P11.11. As a result, his income/gross sales would still
be P20.00105 (P8.89 + P11.11). The capacity, then, of
business establishments to revise their pricing strategy
makes it possible for them not to suffer any reduction in
profits or income/gross sales, or, in the alternative,
mitigate the reduction of their profits or income/gross
sales even after the passage of the law. In other words,
business establishments have the capacity to adjust their
prices so that they may remain profitable even under the
operation of the assailed law.
The Dissent, however, states that The explanation by the
majority that private establishments can always increase
their prices to recover the mandatory discount will only
encourage private establishments to adjust their prices
upwards to the prejudice of customers who do not enjoy
the 20% discount. It was likewise suggested that if a
company increases its prices, despite the application of
the 20% discount, the establishment becomes more
profitable than it was before the implementation of R.A.
7432. Such an economic justification is self-defeating, for
more consumers will suffer from the price increase than
will benefit from the 20% discount. Even then, such ability
to increase prices cannot legally validate a violation of the
eminent domain clause.106
But, if it is possible that the business establishment, by
adjusting its prices, will suffer no reduction in its profits or
income/gross sales (or suffer some reduction but continue
to operate profitably) despite giving the discount, what
would be the basis to strike down the law? If it is possible
that the business establishment, by adjusting its prices,
will not be unduly burdened, how can there be a finding
that the assailed law is an unconstitutional exercise of
police power or eminent domain? That there may be a
burden placed on business establishments or the
consuming public as a result of the operation of the
assailed law is not, by itself, a ground to declare it
unconstitutional for this goes into the wisdom and
expediency of the law.

The cost of most, if not all, regulatory measures of the

government on business establishments is ultimately
passed on to the consumers but that, by itself, does not
justify the wholesale nullification of these measures. It is a
basic postulate of our democratic system of government
that the Constitution is a social contract whereby the
people have surrendered their sovereign powers to the
State for the common good.107
All persons may be burdened by regulatory measures
intended for the common good or to serve some
important governmental interest, such as protecting or
improving the welfare of a special class of people for
which the Constitution affords preferential concern.
Indubitably, the one assailing the law has the heavy
burden of proving that the regulation is unreasonable,
oppressive or confiscatory, or has gone "too far" as to
amount to a "taking." Yet, here, the Dissent would have
this Court nullify the law without any proof of such nature.
Further, this Court is not the proper forum to debate the
economic theories or realities that impelled Congress to
shift from the tax credit to the tax deduction scheme. It is
not within our power or competence to judge which
scheme is more or less burdensome to business
establishments or the consuming public and, thereafter, to
choose which scheme the State should use or pursue. The
shift from the tax credit to tax deduction scheme is a
policy determination by Congress and the Court will
respect it for as long as there is no showing, as here, that
the subject regulation has transgressed constitutional
limitations. Unavoidably, the lack of evidence constrains
the Dissent to rely on speculative and hypothetical
argumentation when it states that the 20% discount is a
significant amount and not a minimal loss (which
erroneously assumes that the discount automatically
results in a loss when it is possible that the profit margin is
greater than 20% and/or the pricing strategy can be
revised to prevent or mitigate any reduction in profits or
income/gross sales as illustrated above),108 and not all
private establishments make a 20% profit margin (which
conversely implies that there are those who make more
and, thus, would not be greatly affected by this
regulation).109
In fine, because of the possible scenarios discussed above,
we cannot assume that the 20% discount results in a
permanent reduction in profits or income/gross sales,
much less that business establishments are forced to
operate at a loss under the assailed law. And, even if we
gratuitously assume that the 20% discount results in some
degree of reduction in profits or income/gross sales, we
cannot assume that such reduction is arbitrary, oppressive
or confiscatory. To repeat, there is no actual proof to back
up this claim, and it could be that the loss suffered by a
business establishment was occasioned through its fault or
negligence in not adapting to the effects of the assailed
law. The law uniformly applies to all business

60

establishments covered thereunder. There is, therefore,

no unjust discrimination as the aforesaid business
establishments are faced with the same constraints. The
necessity of proof is all the more pertinent in this case
because, as similarly observed by Justice Velasco in his
Concurring Opinion, the law has been in operation for over
nine years now. However, the grim picture painted by
petitioners on the unconscionable losses to be
indiscriminately suffered by business establishments,
which should have led to the closure of numerous business
establishments, has not come to pass. Verily, we cannot
invalidate the assailed law based on assumptions and
conjectures. Without adequate proof, the presumption of
constitutionality must prevail. IV At this juncture, we note
that the Dissent modified its original arguments by
including a new paragraph, to wit:
Section 9, Article III of the 1987 Constitution speaks of
private property without any distinction. It does not state
that there should be profit before the taking of property is
subject to just compensation. The private property
referred to for purposes of taking could be inherited,
donated, purchased, mortgaged, or as in this case, part of
the gross sales of private establishments. They are all
private property and any taking should be attended by
corresponding payment of just compensation. The 20%
discount granted to senior citizens belong to private
establishments, whether these establishments make a
profit or suffer a loss. In fact, the 20% discount applies to
non-profit establishments like country, social, or golf clubs
which are open to the public and not only for exclusive
membership. The issue of profit or loss to the
establishments is immaterial.110
Two things may be said of this argument. First, it
contradicts the rest of the arguments of the Dissent. After
it states that the issue of profit or loss is immaterial, the
Dissent proceeds to argue that the 20% discount is not a
minimal loss111 and that the 20% discount forces business
establishments to operate at a loss.112
Even the obiter in Central Luzon Drug
Corporation,113 which the Dissent essentially adopts and
relies on, is premised on the permanent reduction of total
revenues and the loss that business establishments will be
forced to suffer in arguing that the 20% discount
constitutes a "taking" under the power of eminent
domain. Thus, when the Dissent now argues that the issue
of profit or loss is immaterial, it contradicts itself because
it later argues, in order to justify that there is a "taking"
under the power of eminent domain in this case, that the
20% discount forces business establishments to suffer a
significant loss or to operate at a loss. Second, this
argument suffers from the same flaw as the Dissent's
original arguments. It is an erroneous characterization of
the 20% discount. According to the Dissent, the 20%
discount is part of the gross sales and, hence, private
property belonging to business establishments. However,

as previously discussed, the 20% discount is not private

property actually owned and/or used by the business
establishment. It should be distinguished from properties
like lands or buildings actually used in the operation of a
business establishment which, if appropriated for public
use, would amount to a "taking" under the power of
eminent domain. Instead, the 20% discount is a regulatory
measure which impacts the pricing and, hence, the
profitability of business establishments. At the time the
discount is imposed, no particular property of the business
establishment can be said to be "taken." That is, the State
does not acquire or take anything from the business
establishment in the way that it takes a piece of private
land to build a public road. While the 20% discount may
form part of the potential profits or income/gross
sales114 of the business establishment, as similarly
characterized by Justice Bersamin in his Concurring
Opinion, potential profits or income/gross sales are not
private property, specifically cash or money, already
belonging to the business establishment. They are a mere
expectancy because they are potential fruits of the
successful conduct of the business. Prior to the sale of
goods or services, a business establishment may be
subject to State regulations, such as the 20% senior citizen
discount, which may impact the level or amount of profits
or income/gross sales that can be generated by such
establishment. For this reason, the validity of the discount
is to be determined based on its overall effects on the
operations of the business establishment.
Again, as previously discussed, the 20% discount does not
automatically result in a 20% reduction in profits, or, to
align it with the term used by the Dissent, the 20%
discount does not mean that a 20% reduction in gross
sales necessarily results. Because (1) the profit margin of a
product is not necessarily less than 20%, (2) not all
customers of a business establishment are senior citizens,
and (3) the establishment may revise its pricing strategy,
such reduction in profits or income/gross sales may be
prevented or, in the alternative, mitigated so that the
business establishment continues to operate profitably.
Thus, even if we gratuitously assume that some degree of
reduction in profits or income/gross sales occurs because
of the 20% discount, it does not follow that the regulation
is unreasonable, oppressive or confiscatory because the
business establishment may make the necessary
adjustments to continue to operate profitably. No
evidence was presented by petitioners to show otherwise.
In fact, no evidence was presented by petitioners at all.
Justice Leonen, in his Concurring and Dissenting Opinion,
characterizes "profits" (or income/gross sales) as an
inchoate right. Another way to view it, as stated by Justice
Velasco in his Concurring Opinion, is that the business
establishment merely has a right to profits. The
Constitution adverts to it as the right of an enterprise to a
reasonable return on investment.115

61

Undeniably, this right, like any other right, may be

regulated under the police power of the State to achieve
important governmental objectives like protecting the
interests and improving the welfare of senior citizens. It
should be noted though that potential profits or
income/gross sales are relevant in police power and
eminent domain analyses because they may, in
appropriate cases, serve as an indicia when a regulation
has gone "too far" as to amount to a "taking" under the
power of eminent domain. When the deprivation or
reduction of profits or income/gross sales is shown to be
unreasonable, oppressive or confiscatory, then the
challenged governmental regulation may be nullified for
being a "taking" under the power of eminent domain. In
such a case, it is not profits or income/gross sales which
are actually taken and appropriated for public use. Rather,
when the regulation causes an establishment to incur
losses in an unreasonable, oppressive or confiscatory
manner, what is actually taken is capital and the right of
the business establishment to a reasonable return on
investment. If the business losses are not halted because
of the continued operation of the regulation, this
eventually leads to the destruction of the business and the
total loss of the capital invested therein. But, again,
petitioners in this case failed to prove that the subject
regulation is unreasonable, oppressive or confiscatory.
V.
The Dissent further argues that we erroneously used price
and rate of return on investment control laws to justify the
senior citizen discount law. According to the Dissent, only
profits from industries imbued with public interest may be
regulated because this is a condition of their franchises.
Profits of establishments without franchises cannot be
regulated permanently because there is no law regulating
their profits. The Dissent concludes that the permanent
reduction of total revenues or gross sales of business
establishments without franchises is a taking of private
property under the power of eminent domain. In making
this argument, it is unfortunate that the Dissent quotes
only a portion of the ponencia The subject regulation
may be said to be similar to, but with substantial
distinctions from, price control or rate of return on
investment control laws which are traditionally regarded
as police power measures. These laws generally regulate
public utilities or industries/enterprises imbued with
public interest in order to protect consumers from
exorbitant or unreasonable pricing as well as temper
corporate greed by controlling the rate of return on
investment of these corporations considering that they
have a monopoly over the goods or services that they
provide to the general public. The subject regulation
differs therefrom in that (1) the discount does not prevent
the establishments from adjusting the level of prices of
their goods and services, and (2) the discount does not
apply to all customers of a given establishment but only to
the class of senior citizens. x x x116

The above paragraph, in full, states

The subject regulation may be said to be similar to, but
with substantial distinctions from, price control or rate of
return on investment control laws which are traditionally
regarded as police power measures. These laws generally
regulate public utilities or industries/enterprises imbued
with public interest in order to protect consumers from
exorbitant or unreasonable pricing as well as temper
corporate greed by controlling the rate of return on
investment of these corporations considering that they
have a monopoly over the goods or services that they
provide to the general public. The subject regulation
differs therefrom in that (1) the discount does not prevent
the establishments from adjusting the level of prices of
their goods and services, and (2) the discount does not
apply to all customers of a given establishment but only to
the class of senior citizens.
Nonetheless, to the degree material to the resolution of
this case, the 20% discount may be properly viewed as
belonging to the category of price regulatory measures
which affects the profitability of establishments subjected
thereto. (Emphasis supplied)
The point of this paragraph is to simply show that the
State has, in the past, regulated prices and profits of
business establishments. In other words, this type of
regulatory measures is traditionally recognized as police
power measures so that the senior citizen discount may be
considered as a police power measure as well. What is
more, the substantial distinctions between price and rate
of return on investment control laws vis--vis the senior
citizen discount law provide greater reason to uphold the
validity of the senior citizen discount law. As previously
discussed, the ability to adjust prices allows the
establishment subject to the senior citizen discount to
prevent or mitigate any reduction of profits or
income/gross sales arising from the giving of the discount.
In contrast, establishments subject to price and rate of
return on investment control laws cannot adjust prices
accordingly. Certainly, there is no intention to say that
price and rate of return on investment control laws are the
justification for the senior citizen discount law. Not at all.
The justification for the senior citizen discount law is the
plenary powers of Congress. The legislative power to
regulate business establishments is broad and covers a
wide array of areas and subjects. It is well within Congress
legislative powers to regulate the profits or income/gross
sales of industries and enterprises, even those without
franchises. For what are franchises but mere legislative
enactments? There is nothing in the Constitution that
prohibits Congress from regulating the profits or
income/gross sales of industries and enterprises without
franchises. On the contrary, the social justice provisions of
the Constitution enjoin the State to regulate the
"acquisition, ownership, use, and disposition" of property
and its increments.117

62

This may cover the regulation of profits or income/gross

sales of all businesses, without qualification, to attain the
objective of diffusing wealth in order to protect and
enhance the right of all the people to human dignity.118
Thus, under the social justice policy of the Constitution,
business establishments may be compelled to contribute
to uplifting the plight of vulnerable or marginalized groups
in our society provided that the regulation is not arbitrary,
oppressive or confiscatory, or is not in breach of some
specific constitutional limitation. When the Dissent,
therefore, states that the "profits of private
establishments which are non-franchisees cannot be
regulated permanently, and there is no such law regulating
their profits permanently,"119 it is assuming what it ought
to prove. First, there are laws which, in effect,
permanently regulate profits or income/gross sales of
establishments without franchises, and RA 9257 is one
such law. And, second, Congress can regulate such profits
or income/gross sales because, as previously noted, there
is nothing in the Constitution to prevent it from doing so.
Here, again, it must be emphasized that petitioners failed
to present any proof to show that the effects of the
assailed law on their operations has been unreasonable,
oppressive or confiscatory. The permanent regulation of
profits or income/gross sales of business establishments,
even those without franchises, is not as uncommon as the
Dissent depicts it to be. For instance, the minimum wage
law allows the State to set the minimum wage of
employees in a given region or geographical area. Because
of the added labor costs arising from the minimum wage, a
permanent reduction of profits or income/gross sales
would result, assuming that the employer does not
increase the prices of his goods or services. To illustrate,
suppose it costs a company P5.00 to produce a product
and it sells the same at P10.00 with a 50% profit margin.
Later, the State increases the minimum wage. As a result,
the company incurs greater labor costs so that it now
costs P7.00 to produce the same product. The profit per
product of the company would be reduced to P3.00 with a
profit margin of 30%. The net effect would be the same as
in the earlier example of granting a 20% senior citizen
discount. As can be seen, the minimum wage law could,
likewise, lead to a permanent reduction of profits. Does
this mean that the minimum wage law should, likewise, be
declared unconstitutional on the mere plea that it results
in a permanent reduction of profits? Taking it a step
further, suppose the company decides to increase the
price of its product in order to offset the effects of the
increase in labor cost; does this mean that the minimum
wage law, following the reasoning of the Dissent, is
unconstitutional because the consuming public is
effectively made to subsidize the wage of a group of
laborers, i.e., minimum wage earners? The same reasoning
can be adopted relative to the examples cited by the
Dissent which, according to it, are valid police power
regulations. Article 157 of the Labor Code, Sections 19 and
18 of the Social Security Law, and Section 7 of the Pag-IBIG

Fund Law would effectively increase the labor cost of a

business establishment. This would, in turn, be integrated
as part of the cost of its goods or services. Again, if the
establishment does not increase its prices, the net effect
would be a permanent reduction in its profits or
income/gross sales. Following the reasoning of the Dissent
that "any form of permanent taking of private property
(including profits or income/gross sales)120 is an exercise of
eminent domain that requires the State to pay just
compensation,"121 then these statutory provisions would,
likewise, have to be declared unconstitutional. It does not
matter that these benefits are deemed part of the
employees legislated wages because the net effect is the
same, that is, it leads to higher labor costs and a
permanent reduction in the profits or income/gross sales
of the business establishments.122
The point then is this most, if not all, regulatory
measures imposed by the State on business
establishments impact, at some level, the latters prices
and/or profits or income/gross sales.123
If the Court were to sustain the Dissents theory, then a
wholesale nullification of such measures would inevitably
result. The police power of the State and the social justice
provisions of the Constitution would, thus, be rendered
nugatory. There is nothing sacrosanct about profits or
income/gross sales. This, we made clear in Carlos
Superdrug Corporation:124
Police power as an attribute to promote the common good
would be diluted considerably if on the mere plea of
petitioners that they will suffer loss of earnings and
capital, the questioned provision is invalidated. Moreover,
in the absence of evidence demonstrating the alleged
confiscatory effect of the provision in question, there is no
basis for its nullification in view of the presumption of
validity which every law has in its favor.
xxxx
The Court is not oblivious of the retail side of the
pharmaceutical industry and the competitive pricing
component of the business. While the Constitution
protects property rights petitioners must the realities of
business and the State, in the exercise of police power, can
intervene in the operations of a business which may result
in an impairment of property rights in the process.
Moreover, the right to property has a social dimension.
While Article XIII of the Constitution provides the percept
for the protection of property, various laws and
jurisprudence, particularly on agrarian reform and the
regulation of contracts and public utilities, continously
serve as a reminder for the promotion of public good.

63

Undeniably, the success of the senior citizens program

rests largely on the support imparted by petitioners and
the other private establishments concerned. This being the
case, the means employed in invoking the active
participation of the private sector, in order to achieve the
purpose or objective of the law, is reasonably and directly
related. Without sufficient proof that Section 4(a) of R.A.
No. 9257 is arbitrary, and that the continued
implementation of the same would be unconscionably
detrimental to petitioners, the Court will refrain form
quashing a legislative act.125
In conclusion, we maintain that the correct rule in
determining whether the subject regulatory measure has
amounted to a "taking" under the power of eminent
domain is the one laid down in Alalayan v. National Power
Corporation126 and followed in Carlos Superdurg
Corporation127 consistent with long standing principles in
police power and eminent domain analysis. Thus, the
deprivation or reduction of profits or income. Gross sales
must be clearly shown to be unreasonable, oppressive or
confiscatory. Under the specific circumstances of this case,
such determination can only be made upon the
presentation of competent proof which petitioners failed
to do. A law, which has been in operation for many years
and promotes the welfare of a group accorded special
concern by the Constitution, cannot and should not be
summarily invalidated on a mere allegation that it reduces
the profits or income/gross sales of business
establishments.
WHEREFORE, the Petition is hereby DISMISSED for lack of
merit.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice

REMMAN ENTERPRISES, INC. and CHAMBER OF REAL

ESTATE AND BUILDERS'ASSOCIATION, Petitioners,
vs.
PROFESSIONAL REGULATORY BOARD OF REAL ESTATE
SERVICE and PROFESSIONAL REGULATION
COMMISSION, Respondents.
DECISION
VILLARAMA, JR., J.:
Assailed in this petition for review under Rule 45 is the
Decision1 dated July 12, 2011 of the Regional Trial Court
(RTC) of Manila, Branch 42 denying the petition to declare
as unconstitutional Sections 28(a), 29 and 32 of Republic
Act (R.A.) No. 9646.
R.A. No. 9646, otherwise known as the "Real Estate Service
Act of the Philippines" was signed into law on June 29,
2009 by President Gloria Macapagal-Arroyo. It aims to
professionalize the real estate service sector under a
regulatory scheme of licensing, registration and
supervision of real estate service practitioners (real estate
brokers, appraisers, assessors, consultants and
salespersons) in the country. Prior to its enactment, real
estate service practitioners were under the supervision of
the Department of Trade and Industry (DTI) through the
Bureau of Trade Regulation and Consumer Protection
(BTRCP), in the exercise of its consumer regulation
functions. Such authority is now transferred to the
Professional Regulation Commission (PRC) through the
Professional Regulatory Board of Real Estate Service
(PRBRES) created under the new law.
The implementing rules and regulations (IRR) of R.A. No.
9646 were promulgated on July 21, 2010 by the PRC and
PRBRES under Resolution No. 02, Series of 2010.
On December 7, 2010, herein petitioners Remman
Enterprises, Inc. (REI) and the Chamber of Real Estate and
Builders Association (CREBA) instituted Civil Case No. 10124776 in the Regional Trial Court of Manila, Branch 42.
Petitioners sought to declare as void and unconstitutional
the following provisions of R.A. No. 9646:

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 197676

SEC. 28. Exemptions from the Acts Constituting the

Practice of Real Estate Service. The provisions of this Act
and its rules and regulations shall not apply to the
following:
(a) Any person, natural or juridical, who shall directly
perform by himself/herself the acts mentioned in Section
3 hereof with reference to his/her or its own property,
except real estate developers;

February 4, 2014
xxxx

64

SEC. 29. Prohibition Against the Unauthorized Practice of

Real Estate Service. No person shall practice or offer to
practice real estate service in the Philippines or offer
himself/herself as real estate service practitioner, or use
the title, word, letter, figure or any sign tending to convey
the impression that one is a real estate service
practitioner, or advertise or indicate in any manner
whatsoever that one is qualified to practice the profession,
or be appointed as real property appraiser or assessor in
any national government entity or local government unit,
unless he/she has satisfactorily passed the licensure
examination given by the Board, except as otherwise
provided in this Act, a holder of a valid certificate of
registration, and professional identification card or a valid
special/temporary permit duly issued to him/her by the
Board and the Commission, and in the case of real estate
brokers and private appraisers, they have paid the
required bond as hereto provided.
xxxx
SEC. 32. Corporate Practice of the Real Estate Service. (a)
No partnership or corporation shall engage in the business
of real estate service unless it is duly registered with the
Securities and Exchange Commission (SEC), and the
persons authorized to act for the partnership or
corporation are all duly registered and licensed real estate
brokers, appraisers or consultants, as the case may be. The
partnership or corporation shall regularly submit a list of
its real estate service practitioners to the Commission and
to the SEC as part of its annual reportorial requirements.
There shall at least be one (1) licensed real estate broker
for every twenty (20) accredited salespersons.
(b) Divisions or departments of partnerships and
corporations engaged in marketing or selling any real
estate development project in the regular course of
business must be headed by full-time registered and
licensed real estate brokers.
(c) Branch offices of real estate brokers, appraisers or
consultants must be manned by a duly licensed real estate
broker, appraiser or consultant as the case may be.
In case of resignation or termination from employment of
a real estate service practitioner, the same shall be
reported by the employer to the Board within a period not
to exceed fifteen (15) days from the date of effectivity of
the resignation or termination.
Subject to the provisions of the Labor Code, a corporation
or partnership may hire the services of registered and
licensed real estate brokers, appraisers or consultants on
commission basis to perform real estate services and the
latter shall be deemed independent contractors and not
employees of such corporations. (Emphasis and
underscoring supplied.)

According to petitioners, the new law is constitutionally

infirm because (1) it violates Article VI, Section 26 (1) of
the 1987 Philippine Constitution which mandates that
"[e]very bill passed by Congress shall embrace only one
subject which shall be expressed in the title thereof"; (2) it
is in direct conflict with Executive Order (E.O.) No. 648
which transferred the exclusive jurisdiction of the National
Housing Authority (NHA) to regulate the real estate trade
and business to the Human Settlements Commission, now
the Housing and Land Use Regulatory Board (HLURB),
which authority includes the issuance of license to sell of
subdivision owners and developers pursuant to
Presidential Decree (P.D.) No. 957; (3) it violates the due
process clause as it impinges on the real estate
developers most basic ownership rights, the right to use
and dispose property, which is enshrined in Article 428 of
the Civil Code; and (4) Section 28(a) of R.A. No. 9646
violates the equal protection clause as no substantial
distinctions exist between real estate developers and the
exempted group mentioned since both are property
owners dealing with their own property.
Additionally, petitioners contended that the lofty goal of
nurturing and developing a "corps of technically
competent, reasonable and respected professional real
estate service practitioners" is not served by curtailing the
right of real estate developers to conduct their business of
selling properties. On the contrary, these restrictions
would have disastrous effects on the real estate industry
as the additional cost of commissions would affect the
pricing and affordability of real estate packages. When
that happens, petitioners claimed that the millions of jobs
and billions in revenues that the real estate industry
generates for the government will be a thing of the past.
After a summary hearing, the trial court denied the prayer
for issuance of a writ of preliminary injunction.
On July 12, 2011, the trial court rendered its
Decision2 denying the petition. The trial court held that the
assailed provisions are relevant to the title of the law as
they are intended to regulate the practice of real estate
service in the country by ensuring that those who engage
in it shall either be a licensed real estate broker, or under
the latters supervision. It likewise found no real discord
between E.O. No. 648 and R.A. No. 9646 as the latter does
not render nugatory the license to sell granted by the
HLURB to real estate developers, which license would still
subsist. The only difference is that by virtue of the new
law, real estate developers will now be compelled to hire
the services of one licensed real estate broker for every
twenty salespersons to guide and supervise the coterie of
salespersons under the employ of the real estate
developers.
On the issue of due process, the trial court said that the
questioned provisions do not preclude property owners

65

from using, enjoying, or disposing of their own property

because they can still develop and sell their properties
except that they have to secure the services of a licensed
real estate broker who shall oversee the actions of the
unlicensed real estate practitioners under their employ.
Since the subject provisions merely prescribe the
requirements for the regulation of the practice of real
estate services, these are consistent with a valid exercise
of the States police power. The trial court further ruled
that Section 28(a) does not violate the equal protection
clause because the exemption of real estate developers
was anchored on reasonable classification aimed at
protecting the buying public from the rampant
misrepresentations often committed by unlicensed real
estate practitioners, and to prevent unscrupulous and
unethical real estate practices from flourishing considering
the large number of consumers in the regular course of
business compared to isolated sale transactions made by
private individuals selling their own property.
Hence, this appeal on the following questions of law:
1. Whether there is a justiciable controversy for
this Honorable Court to adjudicate;
2. Whether [R.A. No. 9646] is unconstitutional
for violating the "one title-one subject" rule
under Article VI, Section 26 (1) of the Philippine
Constitution;
3. Whether [R.A. No. 9646] is in conflict with PD
957, as amended by EO 648, with respect to the
exclusive jurisdiction of the HLURB to regulate
real estate developers;
4. Whether Sections 28(a), 29, and 32 of [R.A.
No. 9646], insofar as they affect the rights of real
estate developers, are unconstitutional for
violating substantive due process; and
5. Whether Section 28(a), which treats real
estate developers differently from other natural
or juridical persons who directly perform acts of
real estate service with reference to their own
property, is unconstitutional for violating the
equal protection clause.3
The Courts Ruling
The petition has no merit.
Justiciable Controversy
The Constitution4 requires as a condition precedent for the
exercise of judicial power the existence of an actual
controversy between litigants. An actual case or

controversy involves a conflict of legal rights, an assertion

of opposite legal claims susceptible to judicial
resolution.5 The controversy must be justiciable definite
and concrete touching on the legal relations of parties
having adverse legal interests, which may be resolved by a
court of law through the application of a law.6 In other
words, the pleadings must show an active antagonistic
assertion of a legal right, on the one hand, and a denial
thereof on the other; that is, it must concern a real and
not a merely theoretical question or issue. There ought to
be an actual and substantial controversy admitting of
specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would
be upon a hypothetical state of facts.7 An actual case is
ripe for adjudication when the act being challenged has a
direct adverse effect on the individual challenging it.8
There is no question here that petitioners who are real
estate developers are entities directly affected by the
prohibition on performing acts constituting practice of real
estate service without first complying with the registration
and licensing requirements for brokers and agents under
R.A. No. 9646. The possibility of criminal sanctions for
disobeying the mandate of the new law is likewise real.
Asserting that the prohibition violates their rights as
property owners to dispose of their properties, petitioners
challenged on constitutional grounds the implementation
of R.A. No. 9646 which the respondents defended as a
valid legislation pursuant to the States police power. The
Court thus finds a justiciable controversy that calls for
immediate resolution.
No Violation of One-Title One-Subject Rule
Section 26(1), Article VI of the Constitution states:
SEC. 26 (1). Every bill passed by the Congress shall
embrace only one subject which shall be expressed in the
title thereof.
In Farias v. The Executive Secretary,9 the Court explained
the provision as follows:
The proscription is aimed against the evils of the so-called
omnibus bills and log-rolling legislation as well as
surreptitious and/or unconsidered encroaches. The
provision merely calls for all parts of an act relating to its
subject finding expression in its title.
To determine whether there has been compliance with the
constitutional requirement that the subject of an act shall
be expressed in its title, the Court laid down the rule that
Constitutional provisions relating to the subject matter
and titles of statutes should not be so narrowly construed
as to cripple or impede the power of legislation. The

66

requirement that the subject of an act shall be expressed

in its title should receive a reasonable and not a technical
construction. It is sufficient if the title be comprehensive
enough reasonably to include the general object which a
statute seeks to effect, without expressing each and every
end and means necessary or convenient for the
accomplishing of that object. Mere details need not be set
forth. The title need not be an abstract or index of the
Act.10 (Emphasis supplied.)
The Court has previously ruled that the one-subject
requirement under the Constitution is satisfied if all the
parts of the statute are related, and are germane to the
subject matter expressed in the title, or as long as they are
not inconsistent with or foreign to the general subject and
title.11 An act having a single general subject, indicated in
the title, may contain any number of provisions, no matter
how diverse they may be, so long as they are not
inconsistent with or foreign to the general subject, and
may be considered in furtherance of such subject by
providing for the method and means of carrying out the
general object.12
It is also well-settled that the "one title-one subject" rule
does not require the Congress to employ in the title of the
enactment language of such precision as to mirror, fully
index or catalogue all the contents and the minute details
therein. The rule is sufficiently complied with if the title is
comprehensive enough as to include the general object
which the statute seeks to effect.13 Indeed, this Court has
invariably adopted a liberal rather than technical
construction of the rule "so as not to cripple or impede
legislation."14
R.A. No. 9646 is entitled "An Act Regulating the Practice of
Real Estate Service in the Philippines, Creating for the
Purpose a Professional Regulatory Board of Real Estate
Service, Appropriating Funds Therefor and For Other
Purposes." Aside from provisions establishing a regulatory
system for the professionalization of the real estate
service sector, the new law extended its coverage to real
estate developers with respect to their own properties.
Henceforth, real estate developers are prohibited from
performing acts or transactions constituting real estate
service practice without first complying with registration
and licensing requirements for their business, brokers or
agents, appraisers, consultants and salespersons.
Petitioners point out that since partnerships or
corporations engaged in marketing or selling any real
estate development project in the regular course of
business are now required to be headed by full-time,
registered and licensed real estate brokers, this
requirement constitutes limitations on the property rights
and business prerogatives of real estate developers which
are not all reflected in the title of R.A. No. 9646. Neither
are real estate developers, who are already regulated

under a different law, P.D. No. 957, included in the

definition of real estate service practitioners.
We hold that R.A. No. 9646 does not violate the one-title,
one-subject rule.
The primary objective of R.A. No. 9646 is expressed as
follows:
SEC. 2. Declaration of Policy. The State recognizes the
vital role of real estate service practitioners in the social,
political, economic development and progress of the
country by promoting the real estate market, stimulating
economic activity and enhancing government income from
real property-based transactions. Hence, it shall develop
and nurture through proper and effective regulation and
supervision a corps of technically competent, responsible
and respected professional real estate service
practitioners whose standards of practice and service shall
be globally competitive and will promote the growth of
the real estate industry.
We find that the inclusion of real estate developers is
germane to the laws primary goal of developing "a corps
of technically competent, responsible and respected
professional real estate service practitioners whose
standards of practice and service shall be globally
competitive and will promote the growth of the real estate
industry." Since the marketing aspect of real estate
development projects entails the performance of those
acts and transactions defined as real estate service
practices under Section 3(g) of R.A. No. 9646, it is logically
covered by the regulatory scheme to professionalize the
entire real estate service sector.
No Conflict Between R.A. No. 9646
and P.D. No. 957, as amended by E.O. No. 648
Petitioners argue that the assailed provisions still cannot
be sustained because they conflict with P.D. No. 957 which
decreed that the NHA shall have "exclusive jurisdiction to
regulate the real estate trade and business." Such
jurisdiction includes the authority to issue a license to sell
to real estate developers and to register real estate
dealers, brokers or salesmen upon their fulfillment of
certain requirements under the law. By imposing
limitations on real estate developers property rights,
petitioners contend that R.A. No. 9646 undermines the
licenses to sell issued by the NHA (now the HLURB) to real
estate developers allowing them to sell subdivision lots or
condominium units directly to the public. Because the
HLURB has been divested of its exclusive jurisdiction over
real estate developers, the result is an implied repeal of
P.D. No. 957 as amended by E.O. No. 648, which is not
favored in law.

67

It is a well-settled rule of statutory construction that

repeals by implication are not favored. In order to effect a
repeal by implication, the later statute must be so
irreconcilably inconsistent and repugnant with the existing
law that they cannot be made to reconcile and stand
together. The clearest case possible must be made before
the inference of implied repeal may be drawn, for
inconsistency is never presumed. There must be a showing
of repugnance clear and convincing in character. The
language used in the later statute must be such as to
render it irreconcilable with what had been formerly
enacted. An inconsistency that falls short of that standard
does not suffice.15 Moreover, the failure to add a specific
repealing clause indicates that the intent was not to repeal
any existing law, unless an irreconcilable inconsistency and
repugnancy exist in the terms of the new and old laws.16
There is nothing in R.A. No. 9646 that repeals any
provision of P.D. No. 957, as amended by E.O. No. 648.
P.D. No. 957, otherwise known as "The Subdivision and
Condominium Buyers Protective Decree,"17 vested the
NHA with exclusive jurisdiction to regulate the real estate
trade and business in accordance with its provisions. It
empowered the NHA to register, approve and monitor real
estate development projects and issue licenses to sell to
real estate owners and developers. It further granted the
NHA the authority to register and issue/revoke licenses of
brokers, dealers and salesmen engaged in the selling of
subdivision lots and condominium units.
E.O. No. 648, issued on February 7, 1981, reorganized the
Human Settlements Regulatory Commission (HSRC) and
transferred the regulatory functions of the NHA under P.D.
957 to the HSRC. Among these regulatory functions were
the (1) regulation of the real estate trade and business; (2)
registration of subdivision lots and condominium projects;
(3) issuance of license to sell subdivision lots and
condominium units in the registered units; (4) approval of
performance bond and the suspension of license to sell;
(5) registration of dealers, brokers and salesman engaged
in the business of selling subdivision lots or condominium
units; and (6) revocation of registration of dealers, brokers
and salesmen.18
E.O. No. 90, issued on December 17, 1986, renamed the
HSRC as the Housing and Land Use Regulatory Board
(HLURB) and was designated as the regulatory body for
housing and land development under the Housing and
Urban Development Coordinating Council (HUDCC). To
date, HLURB continues to carry out its mandate to register
real estate brokers and salesmen dealing in condominium,
memorial parks and subdivision projects pursuant to
Section 11 of P.D. No. 957, which reads:
SECTION 11. Registration of Dealers, Brokers and
Salesmen. No real estate dealer, broker or salesman shall
engage in the business of selling subdivision lots or

condominium units unless he has registered himself with

the Authority in accordance with the provisions of this
section.
If the Authority shall find that the applicant is of good
repute and has complied with the applicable rules of the
Authority, including the payment of the prescribed fee, he
shall register such applicant as a dealer, broker or
salesman upon filing a bond, or other security in lieu
thereof, in such sum as may be fixed by the Authority
conditioned upon his faithful compliance with the
provisions of this Decree: Provided, that the registration of
a salesman shall cease upon the termination of his
employment with a dealer or broker.
Every registration under this section shall expire on the
thirty-first day of December of each year. Renewal of
registration for the succeeding year shall be granted upon
written application therefore made not less than thirty nor
more than sixty days before the first day of the ensuing
year and upon payment of the prescribed fee, without the
necessity of filing further statements or information,
unless specifically required by the Authority. All
applications filed beyond said period shall be treated as
original applications.
The names and addresses of all persons registered as
dealers, brokers, or salesmen shall be recorded in a
Register of Brokers, Dealers and Salesmen kept in the
Authority which shall be open to public inspection.
On the other hand, Section 29 of R.A. No. 9646 requires as
a condition precedent for all persons who will engage in
acts constituting real estate service, including advertising
in any manner ones qualifications as a real estate service
practitioner, compliance with licensure examination and
other registration requirements including the filing of a
bond for real estate brokers and private appraisers. While
Section 11 of P.D. No. 957 imposes registration
requirements for dealers, brokers and salespersons
engaged in the selling of subdivision lots and condominium
units, Section 29 of R.A. No. 9646 regulates all real estate
service practitioners whether private or government.
While P.D. No. 957 seeks to supervise brokers and dealers
who are engaged in the sale of subdivision lots and
condominium units, R.A. No. 9646 aims to regulate the
real estate service sector in general by professionalizing
their ranks and raising the level of ethical standards for
licensed real estate professionals.
There is no conflict of jurisdiction because the HLURB
supervises only those real estate service practitioners
engaged in the sale of subdivision lots and condominium
projects, specifically for violations of the provisions of P.D.
No. 957, and not the entire real estate service sector
which is now under the regulatory powers of the PRBRES.
HLURBs supervision of brokers and dealers to effectively

68

implement the provisions of P.D. No. 957 does not

foreclose regulation of the real estate service as a
profession. Real estate developers already regulated by
the HLURB are now further required to comply with the
professional licensure requirements under R.A. No. 9646,
as provided in Sections 28, 29 and 32. Plainly, there is no
inconsistency or contradiction in the assailed provisions of
R.A. No. 9646 and P.D. No. 957, as amended.
The rule is that every statute must be interpreted and
brought into accord with other laws in a way that will form
a uniform system of jurisprudence. The legislature is
presumed to have known existing laws on the subject and
not to have enacted conflicting laws.19 Congress,
therefore, could not be presumed to have intended
Sections 28, 29 and 32 of R.A. No. 9646 to run counter to
P.D. No. 957.
No Violation of Due Process
Petitioners contend that the assailed provisions of R.A. No.
9646 are unduly oppressive and infringe the constitutional
rule against deprivation of property without due process
of law. They stress that real estate developers are now
burdened by law to employ licensed real estate brokers to
sell, market and dispose of their properties. Despite having
invested a lot of money, time and resources in their
projects, petitioners aver that real estate developers will
still have less control in managing their business and will
be burdened with additional expenses.
The contention has no basis. There is no deprivation of
property as no restriction on their use and enjoyment of
property is caused by the implementation of R.A. No.
9646. If petitioners as property owners feel burdened by
the new requirement of engaging the services of only
licensed real estate professionals in the sale and marketing
of their properties, such is an unavoidable consequence of
a reasonable regulatory measure.
Indeed, no right is absolute, and the proper regulation of a
profession, calling, business or trade has always been
upheld as a legitimate subject of a valid exercise of the
police power of the State particularly when their conduct
affects the execution of legitimate governmental
functions, the preservation of the State, public health and
welfare and public morals.20 In any case, where the liberty
curtailed affects at most the rights of property, the
permissible scope of regulatory measures is certainly much
wider. To pretend that licensing or accreditation
requirements violate the due process clause is to ignore
the settled practice, under the mantle of police power, of
regulating entry to the practice of various trades or
professions.21
Here, the legislature recognized the importance of
professionalizing the ranks of real estate practitioners by

increasing their competence and raising ethical standards

as real property transactions are "susceptible to
manipulation and corruption, especially if they are in the
hands of unqualified persons working under an ineffective
regulatory system." The new regulatory regime aimed to
fully tap the vast potential of the real estate sector for
greater contribution to our gross domestic income, and
real estate practitioners "serve a vital role in spearheading
the continuous flow of capital, in boosting investor
confidence, and in promoting overall national progress."22
We thus find R.A. No. 9646 a valid exercise of the States
police power. As we said in another case challenging the
constitutionality of a law granting discounts to senior
citizens:
The law is a legitimate exercise of police power which,
similar to the power of eminent domain, has general
welfare for its object. Police power is not capable of an
exact definition, but has been purposely veiled in general
terms to underscore its comprehensiveness to meet all
exigencies and provide enough room for an efficient and
flexible response to conditions and circumstances, thus
assuring the greatest benefits. Accordingly, it has been
described as "the most essential, insistent and the least
limitable of powers, extending as it does to all the great
public needs." It is "[t]he power vested in the legislature
by the constitution to make, ordain, and establish all
manner of wholesome and reasonable laws, statutes, and
ordinances, either with penalties or without, not
repugnant to the constitution, as they shall judge to be for
the good and welfare of the commonwealth, and of the
subjects of the same."
For this reason, when the conditions so demand as
determined by the legislature, property rights must bow to
the primacy of police power because property rights,
though sheltered by due process, must yield to general
welfare.
Police power as an attribute to promote the common good
would be diluted considerably if on the mere plea of
petitioners that they will suffer loss of earnings and
capital, the questioned provision is invalidated. Moreover,
in the absence of evidence demonstrating the alleged
confiscatory effect of the provision in question, there is no
basis for its nullification in view of the presumption of
validity which every law has in its favor.23 (Emphasis
supplied.)
No Violation of Equal Protection Clause
Section 28 of R.A. No. 9646 exempts from its coverage
natural and juridical persons dealing with their own
property, and other persons such as receivers, trustees or
assignees in insolvency or bankruptcy proceedings.
However, real estate developers are specifically

69

mentioned as an exception from those enumerated

therein. Petitioners argue that this provision violates the
equal protection clause because it unjustifiably treats real
estate developers differently from those exempted
persons who also own properties and desire to sell them.
They insist that no substantial distinctions exist between
ordinary property owners and real estate developers as
the latter, in fact, are more capable of entering into real
estate transactions and do not need the services of
licensed real estate brokers.1wphi1 They assail the RTC
decision in citing the reported fraudulent practices as basis
for the exclusion of real estate developers from the
exempted group of persons under Section 28(a).
We sustain the trial courts ruling that R.A. No. 9646 does
not violate the equal protection clause.
In Ichong v. Hernandez,24 the concept of equal protection
was explained as follows:
The equal protection of the law clause is against undue
favor and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not
intended to prohibit legislation, which is limited either in
the object to which it is directed or by territory within
which it is to operate. It does not demand absolute
equality among residents; it merely requires that all
persons shall be treated alike, under like circumstances
and conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is not
infringed by legislation which applies only to those persons
falling within such class, and reasonable grounds exists for
making a distinction between those who fall within such
class and those who do not. (2 Cooley, Constitutional
Limitations, 824-825).25
Although the equal protection clause of the Constitution
does not forbid classification, it is imperative that the
classification should be based on real and substantial
differences having a reasonable relation to the subject of
the particular legislation.26 If classification is germane to
the purpose of the law, concerns all members of the class,
and applies equally to present and future conditions, the
classification does not violate the equal protection
guarantee.27
R.A. No. 9646 was intended to provide institutionalized
government support for the development of "a corps of
highly respected, technically competent, and disciplined
real estate service practitioners, knowledgeable of
internationally accepted standards and practice of the
profession."28 Real estate developers at present constitute
a sector that hires or employs the largest number of
brokers, salespersons, appraisers and consultants due to
the sheer number of products (lots, houses and
condominium units) they advertise and sell nationwide. As
early as in the 70s, there has been a proliferation of errant

developers, operators or sellers who have reneged on

their representation and obligations to comply with
government regulations such as the provision and
maintenance of subdivision roads, drainage, sewerage,
water system and other basic requirements. To protect the
interest of home and lot buyers from fraudulent acts and
manipulations perpetrated by these unscrupulous
subdivision and condominium sellers and operators, P.D.
No. 957 was issued to strictly regulate housing and real
estate development projects. Hence, in approving R.A. No.
9646, the legislature rightfully recognized the necessity of
imposing the new licensure requirements to all real estate
service practitioners, including and more importantly,
those real estate service practitioners working for real
estate developers. Unlike individuals or entities having
isolated transactions over their own property, real estate
developers sell lots, houses and condominium units in the
ordinary course of business, a business which is highly
regulated by the State to ensure the health and safety of
home and lot buyers.
The foregoing shows that substantial distinctions do exist
between ordinary property owners exempted under
Section 28(a) and real estate developers like petitioners,
and the classification enshrined in R.A. No. 9646 is
reasonable and relevant to its legitimate purpose. The
Court thus rules that R.A. No. 9646 is valid and
constitutional.
Since every law is presumed valid, the presumption of
constitutionality can be overcome only by the clearest
showing that there was indeed an infraction of the
Constitution, and only when such a conclusion is reached
by the required majority may the Court pronounce, in the
discharge of the duty it cannot escape, that the challenged
act must be struck down.29
Indeed, "all presumptions are indulged in favor of
constitutionality; one who attacks a statute, alleging
unconstitutionality must prove its invalidity beyond a
reasonable doubt; that a law may work hardship does not
render it unconstitutional; that if any reasonable basis may
be conceived which supports the statute, it will be upheld,
and the challenger must negate all possible bases; that the
courts are not concerned with the wisdom, justice, policy,
or expediency of a statute; and that a liberal interpretation
of the constitution in favor of the constitutionality of
legislation should be adopted."30
WHEREFORE, the petition is DENIED. The Decision dated
July 12, 2011 of the Regional Trial Court of Manila, Branch
42 in Civil Case No. 10-124776 is hereby AFFIRMED and
UPHELD.
No pronouncement as to costs.
SO ORDERED.

70

MARTIN S. VILLARAMA, JR.

Associate Justice

Republic of the Philippines

SUPREME COURT
Baguio City
EN BANC
G.R. No. 204819

April 8, 2014

JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for

themselves and in behalf of their minor children, LUCIA
CARLOS IMBONG and BERNADETTE CARLOS IMBONG and
MAGNIFICAT CHILD DEVELOPMENT CENTER,
INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget
and Management, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports
and HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES,
INC. [ALFI], represented by its President, Maria
Concepcion S. Noche, Spouses Reynaldo S. Luistro &
Rosie B . Luistro, Jose S. Sandejas & Elenita S.A. Sandejas,
Arturo M. Gorrez & Marietta C. Gorrez, Salvador S.
Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista &
Maria Felisa S. Bautista, Desiderio Racho & Traquilina
Racho, F emand Antonio A. Tansingco & Carol Anne C.
Tansingco for themselves and on behalf of their minor
children, Therese Antonette C. Tansingco, Lorenzo Jose C.
Tansingco, Miguel F emando C. Tangsingco, Carlo
Josemaria C. Tansingco & Juan Paolo C. Tansingco,
Spouses Mariano V. Araneta & Eileen Z. Araneta for
themselves and on behalf of their minor children, Ramon
Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses
Renato C. Castor & Mildred C. Castor for themselves and

on behalf of their minor children, Renz Jeffrey C. Castor,

Joseph Ramil C. Castor, John Paul C. Castor & Raphael C.
Castor, Spouses Alexander R. Racho & Zara Z. Racho for
themselves and on behalf of their minor children
Margarita Racho, Mikaela Racho, Martin Racho, Mari
Racho & Manolo Racho, Spouses Alfred R. Racho &
Francine V. Racho for themselves and on behalf of their
minor children Michael Racho, Mariana Racho, Rafael
Racho, Maxi Racho, Chessie Racho & Laura Racho,
Spouses David R. Racho & Armilyn A. Racho for
themselves and on behalf of their minor child Gabriel
Racho, Mindy M. Juatas and on behalf of her minor
children Elijah Gerald Juatas and Elian Gabriel Juatas,
Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws &
Katrina R. Laws,Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department of Education,
Culture and Sports, HON. CORAZON SOLIMAN, Secretary,
Department of Social Welfare and Development, HON.
MANUELA. ROXAS II, Secretary, Department of Interior
and Local Government, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and Management,
HON. ARSENIO M. BALISACAN, Socio-Economic Planning
Secretary and NEDA Director-General, THE PHILIPPINE
COMMISSION ON WOMEN, represented by its
Chairperson, Remedios lgnacio-Rikken, THE PHILIPPINE
HEALTH INSURANCE CORPORATION, represented by its
President Eduardo Banzon, THE LEAGUE OF PROVINCES
OF THE PHILIPPINES, represented by its President Alfonso
Umali, THE LEAGUE OF CITIES OF THE PHILIPPINES,
represented by its President Oscar Rodriguez, and THE
LEAGUE OF MUNICIPALITIES OF THE PHILIPPINES,
represented by its President Donato
Marcos, Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and
VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON.
FLORENCIO B. ABAD, Secretary, Department of Budget
and Management; HON. ENRIQUE T. ONA, Secretary,
Department of Education; and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by
Dr. Nestor B. Lumicao, M.D., as President and in his

71

personal capacity, ROSEVALE FOUNDATION INC.,

represented by Dr. Rodrigo M. Alenton, M.D., as member
of the school board and in his personal capacity,
ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA,
LOVENIAP. NACES, Phd., ANTHONY G. NAGAC, EARL
ANTHONY C. GAMBE and MARLON I. YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES,
HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA,
JR., Executive Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and Management;
HON. ENRIQUE T. ONA, Secretary, Department of Health;
HON. ARMIN A. LUISTRO, Secretary, Department of
Education and HON. MANUELA. ROXAS II, Secretary,
Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, HON. SENATE PRESIDENT, HON. SPEAKER
OF THE HOUSE OF REPRESENTATIVES and HON.
SOLICITOR GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE
APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR
SUZETTE H. LAZO, DBM SECRETARY FLORENCIO B. ABAD,
DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY
ARMIN A. LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX),
herein represented by its National President, Atty.
Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A.
Dumas, Romeo B. Almonte, Osmundo C. Orlanes, Arsenio
Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan,
Dante E. Magdangal, Michael Eugenio O. Plana,
Bienvenido C. Miguel, Jr., Landrito M. Diokno and
Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget
and Management, HON. ENRIQUE T. ONA, Secretary,

Department of Health, HON. ARMIN A. LUISTRO,

Secretary, Department of Education, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local
Government, HON. CORAZON J. SOLIMAN, Secretary,
Department of Social Welfare and Development, HON.
ARSENIO BALISACAN, Director-General, National
Economic and Development Authority, HON. SUZETTE H.
LAZO, Director-General, Food and Drugs Administration,
THE BOARD OF DIRECTORS, Philippine Health Insurance
Corporation, and THE BOARD OF COMMISSIONERS,
Philippine Commission on Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D.,
CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE MILLADOLUMITAO, M.D., collectively known as Doctors For Life,
and ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA,
CARLOS ANTONIO PALAD, WILFREDO JOSE, CLAIRE
NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO
collectively known as Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON.
FLORENCIO B. ABAD, Secretary of the Department of
Budget and Management; HON. ENRIQUE T. ONA,
Secretary of the Department of Health; HON. ARMIN A.
LUISTRO, Secretary of the Department of Education; and
HON. MANUELA. ROXAS II, Secretary of the Department
of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C.
TATAD & ALA F. PAGUIA, for themselves, their Posterity,
and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the
Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by
Loma Melegrito, as Executive Director, and in her
personal capacity, JOSELYN B. BASILIO, ROBERT Z.
CORTES, ARIEL A. CRISOSTOMO, JEREMY I. GATDULA,
CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY,
WINSTON CONRAD B. PADOJINOG, RUFINO L.
POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES,

72

HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA,

JR., Executive Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and Management,
HON. ENRIQUE T. ONA, Secretary, Department of Health,
HON. ARMIN A. LUISTRO, Secretary, Department of
Education and HON. MANUEL A. ROXAS II, Secretary,
Department of Interior and Local
Government, Respondents.
x---------------------------------x

x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M.
KASHIM, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
ENRIQUE T. ONA, Secretary of the Department of Health,
and HON. ARMIN A. LUISTRO,Secretary of the
Department of Budget and Management,Respondents.

G.R. No. 206355

DECISION
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON
PEDROSA, ATTY. CITA BORROMEO-GARCIA,
STELLAACEDERA, ATTY. BERTENI CATALUNA
CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE
SECRETARY, DEPARTMENT OF HEALTH, DEPARTMENT OF
EDUCATION, Respondents.
x---------------------------------x

MENDOZA, J.:
Freedom of religion was accorded preferred status by the
framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that
it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience
directs, to profess his beliefs , and to live as he believes he
ought to live, consistent with the liberty of others and with
the common good."1

G.R. No. 207111

JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY
VICTORIO B. LUMICAO, JOSEPH MARTIN Q. VERDEJO,
ANTONIA EMMA R. ROXAS and LOTA LATGUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports
and HON. MANUEL A. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN
CARLOS ARTADI SARMIENTO AND FRANCESCA ISABELLE
BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A.
RODRIGO, JR. and DEBORAH MARIE VERONICA N.
RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget
and Management, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports
and HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.

To this day, poverty is still a major stumbling block to the

nation's emergence as a developed country, leaving our
people beleaguered in a state of hunger, illiteracy and
unemployment. While governmental policies have been
geared towards the revitalization of the economy, the
bludgeoning dearth in social services remains to be a
problem that concerns not only the poor, but every
member of society. The government continues to tread on
a trying path to the realization of its very purpose, that is,
the general welfare of the Filipino people and the
development of the country as a whole. The legislative
branch, as the main facet of a representative government,
endeavors to enact laws and policies that aim to remedy
looming societal woes, while the executive is closed set to
fully implement these measures and bring concrete and
substantial solutions within the reach of Juan dela Cruz.
Seemingly distant is the judicial branch, oftentimes
regarded as an inert governmental body that merely casts
its watchful eyes on clashing stakeholders until it is called
upon to adjudicate. Passive, yet reflexive when called into
action, the Judiciary then willingly embarks on its solemn
duty to interpret legislation vis-a-vis the most vital and
enduring principle that holds Philippine society together the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years
than the issues of population growth control, abortion and
contraception. As in every democratic society,
diametrically opposed views on the subjects and their
perceived consequences freely circulate in various media.
From television debates2 to sticker campaigns,3 from
rallies by socio-political activists to mass gatherings

73

organized by members of the clergy4 - the clash between

the seemingly antithetical ideologies of the religious
conservatives and progressive liberals has caused a deep
division in every level of the society. Despite calls to
withhold support thereto, however, Republic Act (R.A.) No.
10354, otherwise known as the Responsible Parenthood
and Reproductive Health Act of 2012 (RH Law), was
enacted by Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the
said law, challengers from various sectors of society came
knocking on the doors of the Court, beckoning it to wield
the sword that strikes down constitutional disobedience.
Aware of the profound and lasting impact that its decision
may produce, the Court now faces the iuris controversy, as
presented in fourteen (14) petitions and two (2) petitionsin-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed
by spouses Attys. James M. Imbong and Lovely
Ann C. Imbong, in their personal capacities as
citizens, lawyers and taxpayers and on behalf of
their minor children; and the Magnificat Child
Leaming Center, Inc., a domestic, privatelyowned educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance
for the Family Foundation Philippines, Inc.,
through its president, Atty. Maria Concepcion S.
Noche7 and several others8 in their personal
capacities as citizens and on behalf of the
generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force
for Family and Life Visayas, Inc., and Valeriano S.
Avila, in their capacities as citizens and taxpayers
(Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed
by Serve Life Cagayan De Oro City,
Inc.,11 Rosevale Foundation, Inc.,12 a domestic,
privately-owned educational institution, and
several others,13 in their capacities as citizens
(Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in
his capacity as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed
by Eduardo Olaguer and the Catholic Xybrspace
Apostolate of the Philippines,16 in their
capacities as a citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed
by the Philippine Alliance of Xseminarians

Inc.,18 and several others19 in their capacities as

citizens and taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D.
and several others,21 in their capacities as
citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed
by spouses Francisco and Maria Fenny C. Tatad
and Atty. Alan F. Paguia, in their capacities as
citizens, taxpayers and on behalf of those yet
unborn. Atty. Alan F. Paguia is also proceeding in
his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed
by Pro-Life Philippines Foundation Inc.24 and
several others,25 in their capacities as citizens
and taxpayers and on behalf of its associates
who are members of the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by
Millennium Saint Foundation, Inc.,27 Attys.
Ramon Pedrosa, Cita Borromeo-Garcia, Stella
Acedera, and Berteni Catalufia Causing, in their
capacities as citizens, taxpayers and members of
the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed
by John Walter B. Juat and several others,29 in
their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed
by Couples for Christ Foundation, Inc. and
several others,31 in their capacities as citizens
(CFC);
(14) Petition for Prohibition32 filed by Almarim
Centi Tillah and Abdulhussein M. Kashim in their
capacities as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty.
Samson S. Alcantara in his capacity as a citizen
and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay
Hayaang Yumabong (B UHAY) , an accredited
political party.
A perusal of the foregoing petitions shows that the
petitioners are assailing the constitutionality of RH Law on
the following GROUNDS:
The RH Law violates the right to life of the
unborn. According to the petitioners,
notwithstanding its declared policy against

74

abortion, the implementation of the RH Law

would authorize the purchase of hormonal
contraceptives, intra-uterine devices and
injectables which are abortives, in violation of
Section 12, Article II of the Constitution which
guarantees protection of both the life of the
mother and the life of the unborn from
conception.35
The RH Law violates the right to health and the
right to protection against hazardous products.
The petitioners posit that the RH Law provides
universal access to contraceptives which are
hazardous to one's health, as it causes cancer
and other health problems.36
The RH Law violates the right to religious
freedom. The petitioners contend that the RH
Law violates the constitutional guarantee
respecting religion as it authorizes the use of
public funds for the procurement of
contraceptives. For the petitioners, the use of
public funds for purposes that are believed to be
contrary to their beliefs is included in the
constitutional mandate ensuring religious
freedom.37
It is also contended that the RH Law threatens
conscientious objectors of criminal prosecution,
imprisonment and other forms of punishment, as it
compels medical practitioners 1] to refer patients who
seek advice on reproductive health programs to other
doctors; and 2] to provide full and correct information on
reproductive health programs and service, although it is
against their religious beliefs and convictions.38
In this connection, Section 5 .23 of the Implementing Rules
and Regulations of the RH Law (RH-IRR),39 provides that
skilled health professionals who are public officers such as,
but not limited to, Provincial, City, or Municipal Health
Officers, medical officers, medical specialists, rural health
physicians, hospital staff nurses, public health nurses, or
rural health midwives, who are specifically charged with
the duty to implement these Rules, cannot be considered
as conscientious objectors.40
It is also argued that the RH Law providing for the
formulation of mandatory sex education in schools should
not be allowed as it is an affront to their religious beliefs.41
While the petit10ners recognize that the guarantee of
religious freedom is not absolute, they argue that the RH
Law fails to satisfy the "clear and present danger test" and
the "compelling state interest test" to justify the
regulation of the right to free exercise of religion and the
right to free speech.42

The RH Law violates the constitutional

provision on involuntary servitude. According to
the petitioners, the RH Law subjects medical
practitioners to involuntary servitude because,
to be accredited under the PhilHealth program,
they are compelled to provide forty-eight (48)
hours of pro bona services for indigent women,
under threat of criminal prosecution,
imprisonment and other forms of punishment.43
The petitioners explain that since a majority of patients
are covered by PhilHealth, a medical practitioner would
effectively be forced to render reproductive health
services since the lack of PhilHealth accreditation would
mean that the majority of the public would no longer be
able to avail of the practitioners services.44
The RH Law violates the right to equal
protection of the law. It is claimed that the RH
Law discriminates against the poor as it makes
them the primary target of the government
program that promotes contraceptive use. The
petitioners argue that, rather than promoting
reproductive health among the poor, the RH Law
seeks to introduce contraceptives that would
effectively reduce the number of the poor.45
The RH Law is "void-for-vagueness" in violation
of the due process clause of the Constitution. In
imposing the penalty of imprisonment and/or
fine for "any violation," it is vague because it
does not define the type of conduct to be
treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH
Law violates the right to due process by removing from
them (the people) the right to manage their own affairs
and to decide what kind of health facility they shall be and
what kind of services they shall offer."47 It ignores the
management prerogative inherent in corporations for
employers to conduct their affairs in accordance with their
own discretion and judgment.
The RH Law violates the right to free speech.
To compel a person to explain a full range of
family planning methods is plainly to curtail his
right to expound only his own preferred way of
family planning. The petitioners note that
although exemption is granted to institutions
owned and operated by religious groups, they
are still forced to refer their patients to another
healthcare facility willing to perform the service
or procedure.48
The RH Law intrudes into the zone of privacy of
one's family protected by the Constitution. It is
contended that the RH Law providing for

75

mandatory reproductive health education

intrudes upon their constitutional right to raise
their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the
person who will undergo reproductive health procedure,
the RH Law forsakes any real dialogue between the
spouses and impedes the right of spouses to mutually
decide on matters pertaining to the overall well-being of
their family. In the same breath, it is also claimed that the
parents of a child who has suffered a miscarriage are
deprived of parental authority to determine whether their
child should use contraceptives.50
The RH Law violates the constitutional
principle of non-delegation of legislative
authority. The petitioners question the
delegation by Congress to the FDA of the power
to determine whether a product is nonabortifacient and to be included in the
Emergency Drugs List (EDL).51
The RH Law violates the one subject/one bill
rule provision under Section 26( 1 ), Article VI of
the Constitution.52

standing to question the RH Law; and 3] the petitions are

essentially petitions for declaratory relief over which the
Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the
enforcement of the assailed legislation took effect.
On March 19, 2013, after considering the issues and
arguments raised, the Court issued the Status Quo Ante
Order (SQAO), enjoining the effects and implementation of
the assailed legislation for a period of one hundred and
twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference
with the counsels of the parties to determine and/or
identify the pertinent issues raised by the parties and the
sequence by which these issues were to be discussed in
the oral arguments. On July 9 and 23, 2013, and on August
6, 13, and 27, 2013, the cases were heard on oral
argument. On July 16, 2013, the SQAO was ordered
extended until further orders of the Court.63
Thereafter, the Court directed the parties to submit their
respective memoranda within sixty (60) days and, at the
same time posed several questions for their clarification
on some contentions of the parties.64

The RH Law violates Natural Law.53

The Status Quo Ante
The RH Law violates the principle of Autonomy
of Local Government Units (LGUs) and the
Autonomous Region of Muslim Mindanao
{ARMM). It is contended that the RH Law,
providing for reproductive health measures at
the local government level and the ARMM,
infringes upon the powers devolved to LGUs and
the ARMM under the Local Government Code
and R.A . No. 9054.54
Various parties also sought and were granted leave to file
their respective comments-in-intervention in defense of
the constitutionality of the RH Law. Aside from the Office
of the Solicitor General (OSG) which commented on the
petitions in behalf of the respondents,55 Congressman
Edcel C. Lagman,56 former officials of the Department of
Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr.
Alberto G. Romualdez,57 the Filipino Catholic Voices for
Reproductive Health (C4RH),58 Ana Theresa "Risa"
Hontiveros,59 and Atty. Joan De Venecia60 also filed their
respective Comments-in-Intervention in conjunction with
several others. On June 4, 2013, Senator Pia Juliana S.
Cayetano was also granted leave to intervene.61
The respondents, aside from traversing the substantive
arguments of the petitioners, pray for the dismissal of the
petitions for the principal reasons that 1] there is no actual
case or controversy and, therefore, the issues are not yet
ripe for judicial determination.; 2] some petitioners lack

(Population, Contraceptive and Reproductive Health Laws

Prior to the RH Law
Long before the incipience of the RH Law, the country has
allowed the sale, dispensation and distribution of
contraceptive drugs and devices. As far back as June 18,
1966, the country enacted R.A. No. 4729 entitled "An Act
to Regu,late the Sale, Dispensation, and/or Distribution of
Contraceptive Drugs and Devices." Although contraceptive
drugs and devices were allowed, they could not be sold,
dispensed or distributed "unless such sale, dispensation
and distribution is by a duly licensed drug store or
pharmaceutical company and with the prescription of a
qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969,
contained provisions relative to "dispensing of
abortifacients or anti-conceptional substances and
devices." Under Section 37 thereof, it was provided that
"no drug or chemical product or device capable of
provoking abortion or preventing conception as classified
by the Food and Drug Administration shall be delivered or
sold to any person without a proper prescription by a duly
licensed physician."

76

On December 11, 1967, the Philippines, adhering to the

UN Declaration on Population, which recognized that the
population problem should be considered as the principal
element for long-term economic development, enacted
measures that promoted male vasectomy and tubal
ligation to mitigate population growth.67 Among these
measures included R.A. No. 6365, approved on August 16,
1971, entitled "An Act Establishing a National Policy on
Population, Creating the Commission on Population and
for Other Purposes. " The law envisioned that "family
planning will be made part of a broad educational
program; safe and effective means will be provided to
couples desiring to space or limit family size; mortality and
morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President
Ferdinand E . Marcos issued Presidential Decree. (P.D.) No.
79,68 dated December 8, 1972, which, among others, made
"family planning a part of a broad educational program,"
provided "family planning services as a part of over-all
health care," and made "available all acceptable methods
of contraception, except abortion, to all Filipino citizens
desirous of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and
family planning methods evolved from being a component
of demographic management, to one centered on the
promotion of public health, particularly, reproductive
health.69 Under that policy, the country gave priority to
one's right to freely choose the method of family planning
to be adopted, in conformity with its adherence to the
commitments made in the International Conference on
Population and Development.70 Thus, on August 14, 2009,
the country enacted R.A. No. 9710 or "The Magna Carta
for Women, " which, among others, mandated the State to
provide for comprehensive health services and programs
for women, including family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population
of the country kept on galloping at an uncontrollable pace.
From a paltry number of just over 27 million Filipinos in
1960, the population of the country reached over 76
million in the year 2000 and over 92 million in 2010.72 The
executive and the legislative, thus, felt that the measures
were still not adequate. To rein in the problem, the RH
Law was enacted to provide Filipinos, especially the poor
and the marginalized, access and information to the full
range of modem family planning methods, and to ensure
that its objective to provide for the peoples' right to
reproductive health be achieved. To make it more
effective, the RH Law made it mandatory for health
providers to provide information on the full range of
modem family planning methods, supplies and services,
and for schools to provide reproductive health education.

To put teeth to it, the RH Law criminalizes certain acts of

refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure
to fortify and make effective the current laws on
contraception, women's health and population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law
be declared unconstitutional. Petitioner ALFI, in particular,
argues that the government sponsored contraception
program, the very essence of the RH Law, violates the right
to health of women and the sanctity of life, which the
State is mandated to protect and promote. Thus, ALFI
prays that "the status quo ante - the situation prior to the
passage of the RH Law - must be maintained."73 It explains:
x x x. The instant Petition does not question contraception
and contraceptives per se. As provided under Republic Act
No. 5921 and Republic Act No. 4729, the sale and
distribution of contraceptives are prohibited unless
dispensed by a prescription duly licensed by a physician.
What the Petitioners find deplorable and repugnant under
the RH Law is the role that the State and its agencies - the
entire bureaucracy, from the cabinet secretaries down to
the barangay officials in the remotest areas of the country
- is made to play in the implementation of the
contraception program to the fullest extent possible using
taxpayers' money. The State then will be the funder and
provider of all forms of family planning methods and the
implementer of the program by ensuring the widespread
dissemination of, and universal access to, a full range of
family planning methods, devices and supplies.74
ISSUES
After a scrutiny of the various arguments and contentions
of the parties, the Court has synthesized and refined them
to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power
of judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule

77

II. SUBSTANTIVE: Whether the RH law is unconstitutional:

1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free
Speech
4] The Family
5] Freedom of Expression and Academic
Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and
its implementing rules, it behooves the Court to resolve
some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its
power of judicial review over the controversy.

law has yet to be enforced and applied to the petitioners,

and that the government has yet to distribute
reproductive health devices that are abortive. It claims
that the RH Law cannot be challenged "on its face" as it is
not a speech-regulating measure.80
In many cases involving the determination of the
constitutionality of the actions of the Executive and the
Legislature, it is often sought that the Court temper its
exercise of judicial power and accord due respect to the
wisdom of its co-equal branch on the basis of the principle
of separation of powers. To be clear, the separation of
powers is a fundamental principle in our system of
government, which obtains not through express provision
but by actual division in our Constitution. Each department
of the government has exclusive cognizance of matters
within its jurisdiction and is supreme within its own
sphere.81
Thus, the 1987 Constitution provides that: (a) the
legislative power shall be vested in the Congress of the
Philippines;82 (b) the executive power shall be vested in
the President of the Philippines;83 and (c) the judicial
power shall be vested in one Supreme Court and in such
lower courts as may be established by law.84 The
Constitution has truly blocked out with deft strokes and in
bold lines, the allotment of powers among the three
branches of government.85
In its relationship with its co-equals, the Judiciary
recognizes the doctrine of separation of powers which
imposes upon the courts proper restraint, born of the
nature of their functions and of their respect for the other
branches of government, in striking down the acts of the
Executive or the Legislature as unconstitutional. Verily, the
policy is a harmonious blend of courtesy and caution.86

The Power of Judicial Review

In its attempt to persuade the Court to stay its judicial
hand, the OSG asserts that it should submit to the
legislative and political wisdom of Congress and respect
the compromises made in the crafting of the RH Law, it
being "a product of a majoritarian democratic
process"75 and "characterized by an inordinate amount of
transparency."76 The OSG posits that the authority of the
Court to review social legislation like the RH Law by
certiorari is "weak," since the Constitution vests the
discretion to implement the constitutional policies and
positive norms with the political departments, in
particular, with Congress.77 It further asserts that in view
of the Court's ruling in Southern Hemisphere v. AntiTerrorism Council,78 the remedies of certiorari and
prohibition utilized by the petitioners are improper to
assail the validity of the acts of the legislature.79

It has also long been observed, however, that in times of

social disquietude or political instability, the great
landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated.87 In order to address
this, the Constitution impresses upon the Court to respect
the acts performed by a co-equal branch done within its
sphere of competence and authority, but at the same
time, allows it to cross the line of separation - but only at a
very limited and specific point - to determine whether the
acts of the executive and the legislative branches are null
because they were undertaken with grave abuse of
discretion.88 Thus, while the Court may not pass upon
questions of wisdom, justice or expediency of the RH Law,
it may do so where an attendant unconstitutionality or
grave abuse of discretion results.89 The Court must
demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the
Constitution.

Moreover, the OSG submits that as an "as applied

challenge," it cannot prosper considering that the assailed

78

In this connection, it bears adding that while the scope of

judicial power of review may be limited, the Constitution
makes no distinction as to the kind of legislation that may
be subject to judicial scrutiny, be it in the form of social
legislation or otherwise. The reason is simple and goes
back to the earlier point. The Court may pass upon the
constitutionality of acts of the legislative and the executive
branches, since its duty is not to review their collective
wisdom but, rather, to make sure that they have acted in
consonance with their respective authorities and rights as
mandated of them by the Constitution. If after said review,
the Court finds no constitutional violations of any sort,
then, it has no more authority of proscribing the actions
under review.90 This is in line with Article VIII, Section 1 of
the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.

powers and the balancing of powers among the three

great departments of government through the definition
and maintenance of the boundaries of authority and
control between them. To him, judicial review is the chief,
indeed the only, medium of participation - or instrument
of intervention - of the judiciary in that balancing
operation.95
Lest it be misunderstood, it bears emphasizing that the
Court does not have the unbridled authority to rule on just
any and every claim of constitutional violation.
Jurisprudence is replete with the rule that the power of
judicial review is limited by four exacting requisites, viz :
(a) there must be an actual case or controversy; (b) the
petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be
the lis mota of the case.96
Actual Case or Controversy

Judicial power includes the duty of the courts of justice to

settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
[Emphases supplied]
As far back as Tanada v. Angara,91 the Court has
unequivocally declared that certiorari, prohibition and
mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials, as
there is no other plain, speedy or adequate remedy in the
ordinary course of law. This ruling was later on applied in
Macalintal v. COMELEC,92 Aldaba v. COMELEC,93Magallona
v. Ermita,94 and countless others. In Tanada, the Court
wrote:
In seeking to nullify an act of the Philippine Senate on the
ground that it contravenes the Constitution, the petition
no doubt raises a justiciable controversy. Where an action
of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the dispute.
"The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld. " Once a
"controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in
the instant case), it becomes a legal issue which the Court
is bound by constitutional mandate to decide. [Emphasis
supplied]
In the scholarly estimation of former Supreme Court
Justice Florentino Feliciano, "judicial review is essential for
the maintenance and enforcement of the separation of

Proponents of the RH Law submit that the subj ect

petitions do not present any actual case or controversy
because the RH Law has yet to be implemented.97 They
claim that the questions raised by the petitions are not yet
concrete and ripe for adjudication since no one has been
charged with violating any of its provisions and that there
is no showing that any of the petitioners' rights has been
adversely affected by its operation.98 In short, it is
contended that judicial review of the RH Law is premature.
An actual case or controversy means an existing case or
controversy that is appropriate or ripe for determination,
not conjectural or anticipatory, lest the decision of the
court would amount to an advisory opinion.99 The rule is
that courts do not sit to adjudicate mere academic
questions to satisfy scholarly interest, however
intellectually challenging. The controversy must be
justiciable-definite and concrete, touching on the legal
relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic
assertion of a legal right, on the one hand, and a denial
thereof, on the other; that is, it must concern a real,
tangible and not merely a theoretical question or issue.
There ought to be an actual and substantial controversy
admitting of specific relief through a decree conclusive in
nature, as distinguished from an opinion advising what the
law would be upon a hypothetical state of facts.100
Corollary to the requirement of an actual case or
controversy is the requirement of ripeness.101 A question
is ripe for adjudication when the act being challenged has
had a direct adverse effect on the individual challenging it.
For a case to be considered ripe for adjudication, it is a
prerequisite that something has then been accomplished
or performed by either branch before a court may come
into the picture, and the petitioner must allege the

79

existence of an immediate or threatened injury to himself

as a result of the challenged action. He must show that he
has sustained or is immediately in danger of sustaining
some direct injury as a result of the act complained of102
In The Province of North Cotabato v. The Government of
the Republic of the Philippines,103 where the
constitutionality of an unimplemented Memorandum of
Agreement on the Ancestral Domain (MOA-AD) was put in
question, it was argued that the Court has no authority to
pass upon the issues raised as there was yet no concrete
act performed that could possibly violate the petitioners'
and the intervenors' rights. Citing precedents, the Court
ruled that the fact of the law or act in question being not
yet effective does not negate ripeness. Concrete acts
under a law are not necessary to render the controversy
ripe. Even a singular violation of the Constitution and/or
the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or
controversy exists and that the same is ripe for judicial
determination. Considering that the RH Law and its
implementing rules have already taken effect and that
budgetary measures to carry out the law have already
been passed, it is evident that the subject petitions
present a justiciable controversy. As stated earlier, when
an action of the legislative branch is seriously alleged to
have infringed the Constitution, it not only becomes a
right, but also a duty of the Judiciary to settle the
dispute.104
Moreover, the petitioners have shown that the case is so
because medical practitioners or medical providers are in
danger of being criminally prosecuted under the RH Law
for vague violations thereof, particularly public health
officers who are threatened to be dismissed from the
service with forfeiture of retirement and other benefits.
They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge
lodged by the subject petitions, contending that the RH
Law cannot be challenged "on its face" as it is not a speech
regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge,
also known as a First Amendment Challenge, is one that is
launched to assail the validity of statutes concerning not
only protected speech, but also all other rights in the First
Amendment.106 These include religious freedom, freedom
of the press, and the right of the people to peaceably
assemble, and to petition the Government for a redress of
grievances.107 After all, the fundamental right to religious
freedom, freedom of the press and peaceful assembly are

but component rights of the right to one's freedom of

expression, as they are modes which one's thoughts are
externalized.
In this jurisdiction, the application of doctrines originating
from the U.S. has been generally maintained, albeit with
some modifications. While this Court has withheld the
application of facial challenges to strictly penal
statues,108 it has expanded its scope to cover statutes not
only regulating free speech, but also those involving
religious freedom, and other fundamental rights.109 The
underlying reason for this modification is simple. For
unlike its counterpart in the U.S., this Court, under its
expanded jurisdiction, is mandated by the Fundamental
Law not only to settle actual controversies involving rights
which are legally demandable and enforceable, but also to
determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government.110 Verily, the framers of Our Constitution
envisioned a proactive Judiciary, ever vigilant with its duty
to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions
have seriously alleged that the constitutional human rights
to life, speech and religion and other fundamental rights
mentioned above have been violated by the assailed
legislation, the Court has authority to take cognizance of
these kindred petitions and to determine if the RH Law can
indeed pass constitutional scrutiny. To dismiss these
petitions on the simple expedient that there exist no
actual case or controversy, would diminish this Court as a
reactive branch of government, acting only when the
Fundamental Law has been transgressed, to the detriment
of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the
petitioners to file their respective petitions. It contends
that the "as applied challenge" lodged by the petitioners
cannot prosper as the assailed law has yet to be enforced
and applied against them,111 and the government has yet
to distribute reproductive health devices that are
abortive.112
The petitioners, for their part, invariably invoke the
"transcendental importance" doctrine and their status as
citizens and taxpayers in establishing the requisite locus
standi.
Locus standi or legal standing is defined as a personal and
substantial interest in a case such that the party has
sustained or will sustain direct injury as a result of the
challenged governmental act.113 It requires a personal
stake in the outcome of the controversy as to assure the
concrete adverseness which sharpens the presentation of

80

issues upon which the court so largely depends for

illumination of difficult constitutional questions.114
In relation to locus standi, the "as applied challenge"
embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation
of his own rights. The rule prohibits one from challenging
the constitutionality of the statute grounded on a violation
of the rights of third persons not before the court. This
rule is also known as the prohibition against third-party
standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the
rule on standing is a matter of procedure, hence, can be
relaxed for non-traditional plaintiffs like ordinary citizens,
taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of
paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the
Court held that in cases of paramount importance where
serious constitutional questions are involved, the standing
requirement may be relaxed and a suit may be allowed to
prosper even where there is no direct injury to the party
claiming the right of judicial review. In the first Emergency
Powers Cases,118 ordinary citizens and taxpayers were
allowed to question the constitutionality of several
executive orders although they had only an indirect and
general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law
may not be assailed through an "as-applied challenge, still,
the Court has time and again acted liberally on the locus s
tandi requirement. It has accorded certain individuals
standing to sue, not otherwise directly injured or with
material interest affected by a Government act, provided a
constitutional issue of transcendental importance is
invoked. The rule on locus standi is, after all, a procedural
technicality which the Court has, on more than one
occasion, waived or relaxed, thus allowing non-traditional
plaintiffs, such as concerned citizens, taxpayers, voters or
legislators, to sue in the public interest, albeit they may
not have been directly injured by the operation of a law or
any other government act. As held in Jaworski v.
PAGCOR:119
Granting arguendo that the present action cannot be
properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this
case warrants that we set aside the technical defects and
take primary jurisdiction over the petition at bar. One
cannot deny that the issues raised herein have potentially
pervasive influence on the social and moral well being of
this nation, specially the youth; hence, their proper and

just determination is an imperative need. This is in

accordance with the well-entrenched principle that rules
of procedure are not inflexible tools designed to hinder or
delay, but to facilitate and promote the administration of
justice. Their strict and rigid application, which would
result in technicalities that tend to frustrate, rather than
promote substantial justice, must always be eschewed.
(Emphasis supplied)
In view of the seriousness, novelty and weight as
precedents, not only to the public, but also to the bench
and bar, the issues raised must be resolved for the
guidance of all. After all, the RH Law drastically affects the
constitutional provisions on the right to life and health, the
freedom of religion and expression and other
constitutional rights. Mindful of all these and the fact that
the issues of contraception and reproductive health have
already caused deep division among a broad spectrum of
society, the Court entertains no doubt that the petitions
raise issues of transcendental importance warranting
immediate court adjudication. More importantly,
considering that it is the right to life of the mother and the
unborn which is primarily at issue, the Court need not wait
for a life to be taken away before taking action.
The Court cannot, and should not, exercise judicial
restraint at this time when rights enshrined in the
Constitution are being imperilled to be violated. To do so,
when the life of either the mother or her child is at stake,
would lead to irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are
essentially petitions for declaratory relief over which the
Court has no original jurisdiction.120 Suffice it to state that
most of the petitions are praying for injunctive reliefs and
so the Court would just consider them as petitions for
prohibition under Rule 65, over which it has original
jurisdiction. Where the case has far-reaching implications
and prays for injunctive reliefs, the Court may consider
them as petitions for prohibition under Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the
RH Law, claiming that it violates Section 26(1 ), Article VI of
the Constitution,122 prescribing the one subject-one title
rule. According to them, being one for reproductive health
with responsible parenthood, the assailed legislation
violates the constitutional standards of due process by
concealing its true intent - to act as a population control
measure.123
To belittle the challenge, the respondents insist that the
RH Law is not a birth or population control measure,124and
that the concepts of "responsible parenthood" and

81

"reproductive health" are both interrelated as they are

inseparable.125
Despite efforts to push the RH Law as a reproductive
health law, the Court sees it as principally a population
control measure. The corpus of the RH Law is geared
towards the reduction of the country's population. While it
claims to save lives and keep our women and children
healthy, it also promotes pregnancy-preventing products.
As stated earlier, the RH Law emphasizes the need to
provide Filipinos, especially the poor and the marginalized,
with access to information on the full range of modem
family planning products and methods. These family
planning methods, natural or modem, however, are clearly
geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the
RH Law is to reduce the number of births in the country.
It cannot be denied that the measure also seeks to provide
pre-natal and post-natal care as well. A large portion of
the law, however, covers the dissemination of information
and provisions on access to medically-safe, nonabortifacient, effective, legal, affordable, and quality
reproductive health care services, methods, devices, and
supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention
that the whole idea of contraception pervades the entire
RH Law. It is, in fact, the central idea of the RH
Law.126 Indeed, remove the provisions that refer to
contraception or are related to it and the RH Law loses its
very foundation.127 As earlier explained, "the other
positive provisions such as skilled birth attendance,
maternal care including pre-and post-natal services,
prevention and management of reproductive tract
infections including HIV/AIDS are already provided for in
the Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one
subject/one bill rule. In Benjamin E. Cawaling, Jr. v. The
Commission on Elections and Rep. Francis Joseph G
Escudero, it was written:
It is well-settled that the "one title-one subject" rule does
not require the Congress to employ in the title of the
enactment language of such precision as to mirror, fully
index or catalogue all the contents and the minute details
therein. The rule is sufficiently complied with if the title is
comprehensive enough as to include the general object
which the statute seeks to effect, and where, as here, the
persons interested are informed of the nature, scope and
consequences of the proposed law and its operation.
Moreover, this Court has invariably adopted a liberal
rather than technical construction of the rule "so as not to
cripple or impede legislation." [Emphases supplied]

In this case, a textual analysis of the various provisions of

the law shows that both "reproductive health" and
"responsible parenthood" are interrelated and germane to
the overriding objective to control the population growth.
As expressed in the first paragraph of Section 2 of the RH
Law:
SEC. 2. Declaration of Policy. - The State recognizes and
guarantees the human rights of all persons including their
right to equality and nondiscrimination of these rights, the
right to sustainable human development, the right to
health which includes reproductive health, the right to
education and information, and the right to choose and
make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the
demands of responsible parenthood.
The one subject/one title rule expresses the principle that
the title of a law must not be "so uncertain that the
average person reading it would not be informed of the
purpose of the enactment or put on inquiry as to its
contents, or which is misleading, either in referring to or
indicating one subject where another or different one is
really embraced in the act, or in omitting any expression or
indication of the real subject or scope of the act."129
Considering the close intimacy between "reproductive
health" and "responsible parenthood" which bears to the
attainment of the goal of achieving "sustainable human
development" as stated under its terms, the Court finds no
reason to believe that Congress intentionally sought to
deceive the public as to the contents of the assailed
legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the
right to life and health of the unborn child under Section
12, Article II of the Constitution. The assailed legislation
allowing access to abortifacients/abortives effectively
sanctions abortion.130
According to the petitioners, despite its express terms
prohibiting abortion, Section 4(a) of the RH Law considers
contraceptives that prevent the fertilized ovum to reach
and be implanted in the mother's womb as an
abortifacient; thus, sanctioning contraceptives that take
effect after fertilization and prior to implantation, contrary
to the intent of the Framers of the Constitution to afford
protection to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only
"non-abortifacient" hormonal contraceptives, intrauterine

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devices, injectables and other safe, legal, non-abortifacient

and effective family planning products and supplies,
medical research shows that contraceptives use results in
abortion as they operate to kill the fertilized ovum which
already has life.131

Even if not formally established, the right to life, being

grounded on natural law, is inherent and, therefore, not a
creation of, or dependent upon a particular law, custom,
or belief. It precedes and transcends any authority or the
laws of men.

As it opposes the initiation of life, which is a fundamental

human good, the petitioners assert that the State sanction
of contraceptive use contravenes natural law and is an
affront to the dignity of man.132

In this jurisdiction, the right to life is given more than

ample protection. Section 1, Article III of the Constitution
provides:

Finally, it is contended that since Section 9 of the RH Law

requires the Food and Drug Administration (FDA) to certify
that the product or supply is not to be used as an
abortifacient, the assailed legislation effectively confirms
that abortifacients are not prohibited. Also considering
that the FDA is not the agency that will actually supervise
or administer the use of these products and supplies to
prospective patients, there is no way it can truthfully make
a certification that it shall not be used for abortifacient
purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that
the intent of the Framers of the Constitution was simply
the prohibition of abortion. They contend that the RH Law
does not violate the Constitution since the said law
emphasizes that only "non-abortifacient" reproductive
health care services, methods, devices products and
supplies shall be made accessible to the public.134
According to the OSG, Congress has made a legislative
determination that contraceptives are not abortifacients
by enacting the RH Law. As the RH Law was enacted with
due consideration to various studies and consultations
with the World Health Organization (WHO) and other
experts in the medical field, it is asserted that the Court
afford deference and respect to such a determination and
pass judgment only when a particular drug or device is
later on determined as an abortive.135
For his part, respondent Lagman argues that the
constitutional protection of one's right to life is not
violated considering that various studies of the WHO show
that life begins from the implantation of the fertilized
ovum. Consequently, he argues that the RH Law is
constitutional since the law specifically provides that only
contraceptives that do not prevent the implantation of the
fertilized ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human
being enjoys the right to life.137

Section 1. No person shall be deprived of life, liberty, or

property without due process of law, nor shall any person
be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family
planning methods in the Philippines is not of recent
vintage. From the enactment of R.A. No. 4729, entitled
"An Act To Regulate The Sale, Dispensation, and/or
Distribution of Contraceptive Drugs and Devices "on June
18, 1966, prescribing rules on contraceptive drugs and
devices which prevent fertilization,138 to the promotion of
male vasectomy and tubal ligation,139 and the ratification
of numerous international agreements, the country has
long recognized the need to promote population control
through the use of contraceptives in order to achieve longterm economic development. Through the years, however,
the use of contraceptives and other family planning
methods evolved from being a component of demographic
management, to one centered on the promotion of public
health, particularly, reproductive health.140
This has resulted in the enactment of various measures
promoting women's rights and health and the overall
promotion of the family's well-being. Thus, aside from R.A.
No. 4729, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as the
"The Magna Carta of Women" were legislated.
Notwithstanding this paradigm shift, the Philippine
national population program has always been grounded
two cornerstone principles: "principle of no-abortion" and
the "principle of non-coercion."141 As will be discussed
later, these principles are not merely grounded on
administrative policy, but rather, originates from the
constitutional protection expressly provided to afford
protection to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position
that the question of when life begins is a scientific and
medical issue that should not be decided, at this stage,
without proper hearing and evidence. During the
deliberation, however, it was agreed upon that the
individual members of the Court could express their own
views on this matter.

83

In this regard, the ponente, is of the strong view that life

begins at fertilization.
In answering the question of when life begins, focus
should be made on the particular phrase of Section 12
which reads:
Section 12. The State recognizes the sanctity of family life
and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the
life of the mother and the life of the unborn from
conception. The natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and
the development of moral character shall receive the
support of the Government.
Textually, the Constitution affords protection to the
unborn from conception. This is undisputable because
before conception, there is no unborn to speak of. For said
reason, it is no surprise that the Constitution is mute as to
any proscription prior to conception or when life begins.
The problem has arisen because, amazingly, there are
quarters who have conveniently disregarded the scientific
fact that conception is reckoned from fertilization. They
are waving the view that life begins at implantation.
Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that
conception is synonymous with "fertilization" of the
female ovum by the male sperm.142 On the other side of
the spectrum are those who assert that conception refers
to the "implantation" of the fertilized ovum in the
uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the
Constitution should be interpreted in their plain and
ordinary meaning. As held in the recent case of Chavez v.
Judicial Bar Council:144
One of the primary and basic rules in statutory
construction is that where the words of a statute are clear,
plain, and free from ambiguity, it must be given its literal
meaning and applied without attempted interpretation. It
is a well-settled principle of constitutional construction
that the language employed in the Constitution must be
given their ordinary meaning except where technical terms
are employed. As much as possible, the words of the
Constitution should be understood in the sense they have
in common use. What it says according to the text of the
provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they
say. Verba legis non est recedendum - from the words of a
statute there should be no departure.

The raison d' etre for the rule is essentially two-fold: First,
because it is assumed that the words in which
constitutional provisions are couched express the
objective sought to be attained; and second, because the
Constitution is not primarily a lawyer's document but
essentially that of the people, in whose consciousness it
should ever be present as an important condition for the
rule of law to prevail.
In conformity with the above principle, the traditional
meaning of the word "conception" which, as described
and defined by all reliable and reputable sources, means
that life begins at fertilization.
Webster's Third New International Dictionary describes it
as the act of becoming pregnant, formation of a viable
zygote; the fertilization that results in a new entity capable
of developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term
"conception" as the fecundation of the female ovum by
the male spermatozoon resulting in human life capable of
survival and maturation under normal conditions.146
Even in jurisprudence, an unborn child has already a legal
personality. In Continental Steel Manufacturing
Corporation v. Hon. Accredited Voluntary Arbitrator Allan
S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not
acquire civil personality first before he/she could die. Even
a child inside the womb already has life. No less than the
Constitution recognizes the life of the unborn from
conception, that the State must protect equally with the
life of the mother. If the unborn already has life, then the
cessation thereof even prior to the child being delivered,
qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing
for the US Supreme Court, said that the State "has respect
for human life at all stages in the pregnancy" and "a
legitimate and substantial interest in preserving and
promoting fetal life." Invariably, in the decision, the fetus
was referred to, or cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light
on the intention of the Framers regarding the term
"conception" used in Section 12, Article II of the
Constitution. From their deliberations, it clearly refers to
the moment of "fertilization." The records reflect the
following:
Rev. Rigos: In Section 9, page 3, there is a sentence which
reads:

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"The State shall equally protect the life of the mother and
the life of the unborn from the moment of conception."

Rev. Rigos: Yes, we think that the word "unborn" is

sufficient for the purpose of writing a Constitution,
without specifying "from the moment of conception."

When is the moment of conception?

xxx
Mr. Villegas: As I explained in the sponsorship speech, it is
when the ovum is fertilized by the sperm that there is
human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as
such, the beginning of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological
manner. The first question that needs to be answered is: Is
the fertilized ovum alive? Biologically categorically says
yes, the fertilized ovum is alive. First of all, like all living
organisms, it takes in nutrients which it processes by itself.
It begins doing this upon fertilization. Secondly, as it takes
in these nutrients, it grows from within. Thirdly, it
multiplies itself at a geometric rate in the continuous
process of cell division. All these processes are vital signs
of life. Therefore, there is no question that biologically the
fertilized ovum has life.
The second question: Is it human? Genetics gives an
equally categorical "yes." At the moment of conception,
the nuclei of the ovum and the sperm rupture. As this
happens 23 chromosomes from the ovum combine with
23 chromosomes of the sperm to form a total of 46
chromosomes. A chromosome count of 46 is found only and I repeat, only in human cells. Therefore, the fertilized
ovum is human.

Mr. Davide: I would not subscribe to that particular view

because according to the Commissioner's own admission,
he would leave it to Congress to define when life begins.
So, Congress can define life to begin from six months after
fertilization; and that would really be very, very,
dangerous. It is now determined by science that life begins
from the moment of conception. There can be no doubt
about it. So we should not give any doubt to Congress,
too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a
question on that point. Actually, that is one of the
questions I was going to raise during the period of
interpellations but it has been expressed already. The
provision, as proposed right now states:
The State shall equally protect the life of the mother and
the life of the unborn from the moment of conception.
When it speaks of "from the moment of conception," does
this mean when the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.

Since these questions have been answered affirmatively,

we must conclude that if the fertilized ovum is both alive
and human, then, as night follows day, it must be human
life. Its nature is human.151

Mr. Gascon: Therefore that does not leave to Congress the

right to determine whether certain contraceptives that we
know today are abortifacient or not because it is a fact
that some of the so-called contraceptives deter the
rooting of the ovum in the uterus. If fertilization has
already occurred, the next process is for the fertilized
ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the
opportunity for the fertilized ovum to reach the uterus.
Therefore, if we take the provision as it is proposed, these
so called contraceptives should be banned.

Why the Constitution used the phrase "from the moment

of conception" and not "from the moment of fertilization"
was not because of doubt when human life begins, but
rather, because:

Mr. Villegas: Yes, if that physical fact is established, then

that is what is called abortifacient and, therefore, would
be unconstitutional and should be banned under this
provision.

Mr. Tingson: x x x x the phrase from the moment of

conception" was described by us here before with the
scientific phrase "fertilized ovum" may be beyond the
comprehension of some people; we want to use the
simpler phrase "from the moment of conception."152

Mr. Gascon: Yes. So my point is that I do not think it is up

to Congress to state whether or not these certain
contraceptives are abortifacient. Scientifically and based
on the provision as it is now proposed, they are already
considered abortifacient.154

Thus, in order to ensure that the fertilized ovum is given

ample protection under the Constitution, it was discussed:

From the deliberations above-quoted, it is apparent that

the Framers of the Constitution emphasized that the State
shall provide equal protection to both the mother and the

85

unborn child from the earliest opportunity of life, that is,

upon fertilization or upon the union of the male sperm and
the female ovum. It is also apparent is that the Framers of
the Constitution intended that to prohibit Congress from
enacting measures that would allow it determine when life
begins.
Equally apparent, however, is that the Framers of the
Constitution did not intend to ban all contraceptives for
being unconstitutional. In fact, Commissioner Bernardo
Villegas, spearheading the need to have a constitutional
provision on the right to life, recognized that the
determination of whether a contraceptive device is an
abortifacient is a question of fact which should be left to
the courts to decide on based on established evidence.155
From the discussions above, contraceptives that kill or
destroy the fertilized ovum should be deemed an abortive
and thus prohibited. Conversely, contraceptives that
actually prevent the union of the male sperm and the
female ovum, and those that similarly take action prior to
fertilization should be deemed non-abortive, and thus,
constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx

xxx

xxx

Mr. Gascon: xx xx. As I mentioned in my speech on the US

bases, I am pro-life, to the point that I would like not only
to protect the life of the unborn, but also the lives of the
millions of people in the world by fighting for a nuclearfree world. I would just like to be assured of the legal and
pragmatic implications of the term "protection of the life
of the unborn from the moment of conception." I raised
some of these implications this afternoon when I
interjected in the interpellation of Commissioner
Regalado. I would like to ask that question again for a
categorical answer.
I mentioned that if we institutionalize the term "the life of
the unborn from the moment of conception" we are also
actually saying "no," not "maybe," to certain
contraceptives which are already being encouraged at this
point in time. Is that the sense of the committee or does it
disagree with me?

that some of these contraceptives will have to be

unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the
fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the
1987 Constitution is even admitted by petitioners during
the oral arguments. There it was conceded that tubal
ligation, vasectomy, even condoms are not classified as
abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is
no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:

Mr. Azcuna: No, Mr. Presiding Officer, because

contraceptives would be preventive. There is no unborn
yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking
more about some contraceptives, such as the intra-uterine
device which actually stops the egg which has already
been fertilized from taking route to the uterus. So if we say
"from the moment of conception," what really occurs is

Even if there is already information that condoms

sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that
effect, Your Honor, but I am discussing here Section 12,
Article II, Your Honor, yes.

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Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your
Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of
medical foundation. Mosby s Medical, Nursing, and Allied
Health Dictionary defines conception as "the beginning of
pregnancy usually taken to be the instant a spermatozoon
enters an ovum and forms a viable zygote."159
It describes fertilization as "the union of male and female
gametes to form a zygote from which the embryo
develops."160
The Textbook of Obstetrics (Physiological & Pathological
Obstetrics),161 used by medical schools in the Philippines,
also concludes that human life (human person) begins at
the moment of fertilization with the union of the egg and
the sperm resulting in the formation of a new individual,
with a unique genetic composition that dictates all
developmental stages that ensue.
Similarly, recent medical research on the matter also
reveals that: "Human development begins after the union
of male and female gametes or germ cells during a process
known as fertilization (conception). Fertilization is a
sequence of events that begins with the contact of a
sperm (spermatozoon) with a secondary oocyte (ovum)
and ends with the fusion of their pronuclei (the haploid
nuclei of the sperm and ovum) and the mingling of their
chromosomes to form a new cell. This fertilized ovum,
known as a zygote, is a large diploid cell that is the
beginning, or primordium, of a human being."162
The authors of Human Embryology & Teratology163 mirror
the same position. They wrote: "Although life is a
continuous process, fertilization is a critical landmark
because, under ordinary circumstances, a new, genetically
distinct human organism is thereby formed.... The
combination of 23 chromosomes present in each
pronucleus results in 46 chromosomes in the zygote. Thus
the diploid number is restored and the embryonic genome
is formed. The embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical
Association came out with a "Paper on the Reproductive
Health Bill (Responsible Parenthood Bill)" and therein
concluded that:

CONCLUSION
The PMA throws its full weight in supporting the RH Bill at
the same time that PMA maintains its strong position that
fertilization is sacred because it is at this stage that
conception, and thus human life, begins. Human lives are
sacred from the moment of conception, and that
destroying those new lives is never licit, no matter what
the purported good outcome would be. In terms of biology
and human embryology, a human being begins
immediately at fertilization and after that, there is no
point along the continuous line of human embryogenesis
where only a "potential" human being can be posited. Any
philosophical, legal, or political conclusion cannot escape
this objective scientific fact.
The scientific evidence supports the conclusion that a
zygote is a human organism and that the life of a new
human being commences at a scientifically well defined
"moment of conception." This conclusion is objective,
consistent with the factual evidence, and independent of
any specific ethical, moral, political, or religious view of
human life or of human embryos.164
Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or
understood under medical parlance, and more
importantly, following the intention of the Framers of the
Constitution, the undeniable conclusion is that a zygote is
a human organism and that the life of a new human being
commences at a scientifically well-defined moment of
conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the
theory advocated by Hon. Lagman that life begins at
implantation.165 According to him, "fertilization and
conception are two distinct and successive stages in the
reproductive process. They are not identical and
synonymous."166 Citing a letter of the WHO, he wrote that
"medical authorities confirm that the implantation of the
fertilized ovum is the commencement of conception and it
is only after implantation that pregnancy can be medically
detected."167
This theory of implantation as the beginning of life is
devoid of any legal or scientific mooring. It does not
pertain to the beginning of life but to the viability of the
fetus. The fertilized ovum/zygote is not an inanimate
object - it is a living human being complete with DNA and
46 chromosomes.168 Implantation has been conceptualized
only for convenience by those who had population control
in mind. To adopt it would constitute textual infidelity not
only to the RH Law but also to the Constitution.

87

Not surprisingly, even the OSG does not support this

position.
If such theory would be accepted, it would unnervingly
legitimize the utilization of any drug or device that would
prevent the implantation of the fetus at the uterine wall. It
would be provocative and further aggravate religiousbased divisiveness.

includes sexual health, the purpose of which is the

enhancement of life and personal relations. The elements
of reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of abortion
complications;

It would legally permit what the Constitution proscribes abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the
1987 Constitution in protecting the life of the unborn from
conception was to prevent the Legislature from enacting a
measure legalizing abortion. It was so clear that even the
Court cannot interpret it otherwise. This intent of the
Framers was captured in the record of the proceedings of
the 1986 Constitutional Commission. Commissioner
Bernardo Villegas, the principal proponent of the
protection of the unborn from conception, explained:
The intention .. .is to make sure that there would be no
pro-abortion laws ever passed by Congress or any proabortion decision passed by the Supreme Court.169
A reading of the RH Law would show that it is in line with
this intent and actually proscribes abortion. While the
Court has opted not to make any determination, at this
stage, when life begins, it finds that the RH Law itself
clearly mandates that protection be afforded from the
moment of fertilization. As pointed out by Justice Carpio,
the RH Law is replete with provisions that embody the
policy of the law to protect to the fertilized ovum and that
it should be afforded safe travel to the uterus for
implantation.170
Moreover, the RH Law recognizes that abortion is a crime
under Article 256 of the Revised Penal Code, which
penalizes the destruction or expulsion of the fertilized
ovum. Thus:

xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of
individuals and couples, to decide freely and responsibly
whether or not to have children; the number, spacing and
timing of their children; to make other decisions
concerning reproduction, free of discrimination, coercion
and violence; to have the information and means to do so;
and to attain the highest standard of sexual health and
reproductive health: Provided, however, That reproductive
health rights do not include abortion, and access to
abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws
against abortion, any law, presidential decree or issuance,
executive order, letter of instruction, administrative order,
rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392,
otherwise known as the Midwifery Act, is hereby repealed,
modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent
in prohibiting abortifacients. To be clear, Section 4(a) of
the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x

1] xx x.
Section 4. Definition of Terms. - For the purpose of this
Act, the following terms shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full
range of methods, facilities, services and supplies that
contribute to reproductive health and well-being by
addressing reproductive health-related problems. It also

(a) Abortifacient refers to any drug or device that induces

abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach
and be implanted in the mother's womb upon
determination of the FDA.
As stated above, the RH Law mandates that protection
must be afforded from the moment of fertilization. By
using the word " or," the RH Law prohibits not only drugs
or devices that prevent implantation, but also those that
induce abortion and those that induce the destruction of a

88

fetus inside the mother's womb. Thus, an abortifacient is

any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the
mother's womb; or
(c) Prevents the fertilized ovum to reach and be
implanted in the mother's womb, upon
determination of the FDA.
Contrary to the assertions made by the petitioners, the
Court finds that the RH Law, consistent with the
Constitution, recognizes that the fertilized ovum already
has life and that the State has a bounden duty to protect
it. The conclusion becomes clear because the RH Law, first,
prohibits any drug or device that induces abortion (first
kind), which, as discussed exhaustively above, refers to
that which induces the killing or the destruction of the
fertilized ovum, and, second, prohibits any drug or device
the fertilized ovum to reach and be implanted in the
mother's womb (third kind).
By expressly declaring that any drug or device that
prevents the fertilized ovum to reach and be implanted in
the mother's womb is an abortifacient (third kind), the RH
Law does not intend to mean at all that life only begins
only at implantation, as Hon. Lagman suggests. It also does
not declare either that protection will only be given upon
implantation, as the petitioners likewise suggest. Rather, it
recognizes that: one, there is a need to protect the
fertilized ovum which already has life, and two, the
fertilized ovum must be protected the moment it becomes
existent - all the way until it reaches and implants in the
mother's womb. After all, if life is only recognized and
afforded protection from the moment the fertilized ovum
implants - there is nothing to prevent any drug or device
from killing or destroying the fertilized ovum prior to
implantation.
From the foregoing, the Court finds that inasmuch as it
affords protection to the fertilized ovum, the RH Law does
not sanction abortion. To repeat, it is the Court's position
that life begins at fertilization, not at implantation. When a
fertilized ovum is implanted in the uterine wall , its
viability is sustained but that instance of implantation is
not the point of beginning of life. It started earlier. And as
defined by the RH Law, any drug or device that induces
abortion, that is, which kills or destroys the fertilized ovum
or prevents the fertilized ovum to reach and be implanted
in the mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law

This notwithstanding, the Court finds that the proviso

under Section 9 of the law that "any product or supply
included or to be included in the EDL must have a
certification from the FDA that said product and supply is
made available on the condition that it is not to be used as
an abortifacient" as empty as it is absurd. The FDA, with all
its expertise, cannot fully attest that a drug or device will
not all be used as an abortifacient, since the agency cannot
be present in every instance when the contraceptive
product or supply will be used.171
Pursuant to its declared policy of providing access only to
safe, legal and non-abortifacient contraceptives, however,
the Court finds that the proviso of Section 9, as worded,
should bend to the legislative intent and mean that "any
product or supply included or to be included in the EDL
must have a certification from the FDA that said product
and supply is made available on the condition that it
cannot be used as abortifacient." Such a construction is
consistent with the proviso under the second paragraph of
the same section that provides:
Provided, further, That the foregoing offices shall not
purchase or acquire by any means emergency
contraceptive pills, postcoital pills, abortifacients that will
be used for such purpose and their other forms or
equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the
authors of the RH-IRR gravely abused their office when
they redefined the meaning of abortifacient. The RH Law
defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act,
the following terms shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces
abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach
and be implanted in the mother's womb upon
determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines
"abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall
be defined as follows:
a) Abortifacient refers to any drug or device that primarily
induces abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to
reach and be implanted in the mother's womb upon
determination of the Food and Drug Administration (FDA).
[Emphasis supplied]

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Again in Section 3.0lG) of the RH-IRR, "contraceptive," is

redefined, viz:
j) Contraceptive refers to any safe, legal, effective and
scientifically proven modern family planning method,
device, or health product, whether natural or artificial,
that prevents pregnancy but does not primarily destroy a
fertilized ovum or prevent a fertilized ovum from being
implanted in the mother's womb in doses of its approved
indication as determined by the Food and Drug
Administration (FDA).
The above-mentioned section of the RH-IRR allows
"contraceptives" and recognizes as "abortifacient" only
those that primarily induce abortion or the destruction of
a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's
womb.172

Indeed, consistent with the constitutional policy

prohibiting abortion, and in line with the principle that
laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its
implementing rules must be consistent with each other in
prohibiting abortion. Thus, the word " primarily" in Section
3.0l(a) and G) of the RH-IRR should be declared void. To
uphold the validity of Section 3.0l(a) and G) of the RH-IRR
and prohibit only those contraceptives that have the
primary effect of being an abortive would effectively
"open the floodgates to the approval of contraceptives
which may harm or destroy the life of the unborn from
conception/fertilization in violation of Article II, Section 12
of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no
abortion" embodied in the constitutional protection of life
must be upheld.

This cannot be done.

2-The Right to Health

In this regard, the observations of Justice Brion and Justice

Del Castillo are well taken. As they pointed out, with the
insertion of the word "primarily," Section 3.0l(a) and G) of
the RH-IRR173 must be struck down for being ultra vires.

The petitioners claim that the RH Law violates the right to

health because it requires the inclusion of hormonal
contraceptives, intrauterine devices, injectables and family
products and supplies in the National Drug Formulary and
the inclusion of the same in the regular purchase of
essential medicines and supplies of all national
hospitals.176 Citing various studies on the matter, the
petitioners posit that the risk of developing breast and
cervical cancer is greatly increased in women who use oral
contraceptives as compared to women who never use
them. They point out that the risk is decreased when the
use of contraceptives is discontinued. Further, it is
contended that the use of combined oral contraceptive
pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic
stroke, and an indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive health"
and "sexual health" under Sections 4(p)178 and (w)179 of
the RH Law, the petitioners assert that the assailed
legislation only seeks to ensure that women have
pleasurable and satisfying sex lives.180

Evidently, with the addition of the word "primarily," in

Section 3.0l(a) and G) of the RH-IRR is indeed ultra vires. It
contravenes Section 4(a) of the RH Law and should,
therefore, be declared invalid. There is danger that the
insertion of the qualifier "primarily" will pave the way for
the approval of contraceptives which may harm or destroy
the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution. With
such qualification in the RH-IRR, it appears to insinuate
that a contraceptive will only be considered as an
"abortifacient" if its sole known effect is abortion or, as
pertinent here, the prevention of the implantation of the
fertilized ovum.
For the same reason, this definition of "contraceptive"
would permit the approval of contraceptives which are
actually abortifacients because of their fail-safe
mechanism.174
Also, as discussed earlier, Section 9 calls for the
certification by the FDA that these contraceptives cannot
act as abortive. With this, together with the definition of
an abortifacient under Section 4 (a) of the RH Law and its
declared policy against abortion, the undeniable
conclusion is that contraceptives to be included in the
PNDFS and the EDL will not only be those contraceptives
that do not have the primary action of causing abortion or
the destruction of a fetus inside the mother's womb or the
prevention of the fertilized ovum to reach and be
implanted in the mother's womb, but also those that do
not have the secondary action of acting the same way.

The OSG, however, points out that Section 15, Article II of

the Constitution is not self-executory, it being a mere
statement of the administration's principle and policy.
Even if it were self-executory, the OSG posits that medical
authorities refute the claim that contraceptive pose a
danger to the health of women.181
The Court's Position
A component to the right to life is the constitutional right
to health. In this regard, the Constitution is replete with
provisions protecting and promoting the right to health.
Section 15, Article II of the Constitution provides:

90

Section 15. The State shall protect and promote the right
to health of the people and instill health consciousness
among them.
A portion of Article XIII also specifically provides for the
States' duty to provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and
comprehensive approach to health development which
shall endeavor to make essential goods, health and other
social services available to all the people at affordable
cost. There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women, and
children. The State shall endeavor to provide free medical
care to paupers.
Section 12. The State shall establish and maintain an
effective food and drug regulatory system and undertake
appropriate health, manpower development, and
research, responsive to the country's health needs and
problems.
Section 13. The State shall establish a special agency for
disabled person for their rehabilitation, self-development,
and self-reliance, and their integration into the
mainstream of society.

Constitution should be considered self-executing, as a

contrary rule would give the legislature discretion to
determine when, or whether, they shall be effective.
These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely
meaningless by simply refusing to pass the needed
implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the
petitioners, particularly ALFI, do not question
contraception and contraceptives per se.184 In fact, ALFI
prays that the status quo - under R.A. No. 5921 and R.A.
No. 4729, the sale and distribution of contraceptives are
not prohibited when they are dispensed by a prescription
of a duly licensed by a physician - be maintained.185
The legislative intent in the enactment of the RH Law in
this regard is to leave intact the provisions of R.A. No.
4729. There is no intention at all to do away with it. It is
still a good law and its requirements are still in to be
complied with. Thus, the Court agrees with the
observation of respondent Lagman that the effectivity of
the RH Law will not lead to the unmitigated proliferation
of contraceptives since the sale, distribution and
dispensation of contraceptive drugs and devices will still
require the prescription of a licensed physician. With R.A.
No. 4729 in place, there exists adequate safeguards to
ensure the public that only contraceptives that are safe
are made available to the public. As aptly explained by
respondent Lagman:

Finally, Section 9, Article XVI provides:

Section 9. The State shall protect consumers from trade
malpractices and from substandard or hazardous
products.
Contrary to the respondent's notion, however, these
provisions are self-executing. Unless the provisions clearly
express the contrary, the provisions of the Constitution
should be considered self-executory. There is no need for
legislation to implement these self-executing
provisions.182 In Manila Prince Hotel v. GSIS,183 it was
stated:
x x x Hence, unless it is expressly provided that a legislative
act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution
are self-executing. If the constitutional provisions are
treated as requiring legislation instead of self-executing,
the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law.
This can be cataclysmic. That is why the prevailing view is,
as it has always been, that
... in case of doubt, the Constitution should be considered
self-executing rather than non-self-executing. . . . Unless
the contrary is clearly intended, the provisions of the

D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of
contraceptives, the same cannot be dispensed and used
without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale,
Dispensation, and/ or Distribution of Contraceptive Drugs
and Devices" and Republic Act No. 5921 or "An Act
Regulating the Practice of Pharmacy and Setting Standards
of Pharmaceutical Education in the Philippines and for
Other Purposes" are not repealed by the RH Law and the
provisions of said Acts are not inconsistent with the RH
Law.
110. Consequently, the sale, distribution and dispensation
of contraceptive drugs and devices are particularly
governed by RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership,
or corporation, to sell, dispense or otherwise distribute
whether for or without consideration, any contraceptive
drug or device, unless such sale, dispensation or
distribution is by a duly licensed drug store or

91

pharmaceutical company and with the prescription of a

qualified medical practitioner.

The supply and budget allotments shall be based on,

among others, the current levels and projections of the
following:

"Sec. 2 . For the purpose of this Act:

"(a) "Contraceptive drug" is any medicine, drug,
chemical, or portion which is used exclusively for
the purpose of preventing fertilization of the
female ovum: and
"(b) "Contraceptive device" is any instrument,
device, material, or agent introduced into the
female reproductive system for the primary
purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating
the provisions of this Act shall be punished with a fine of
not more than five hundred pesos or an imprisonment of
not less than six months or more than one year or both in
the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section
25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and
devices. No medicine, pharmaceutical, or drug of whatever
nature and kind or device shall be compounded,
dispensed, sold or resold, or otherwise be made available
to the consuming public except through a prescription
drugstore or hospital pharmacy, duly established in
accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for
in the RH Law and other relevant statutes, the pretension
of the petitioners that the RH Law will lead to the
unmitigated proliferation of contraceptives, whether
harmful or not, is completely unwarranted and
baseless.186 [Emphases in the Original. Underlining
supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection
with Section 10 of the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning
Supplies. - The DOH shall procure, distribute to LGUs and
monitor the usage of family planning supplies for the
whole country. The DOH shall coordinate with all
appropriate local government bodies to plan and
implement this procurement and distribution program.

(a) Number of women of reproductive age and

couples who want to space or limit their
children;
(b) Contraceptive prevalence rate, by type of
method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement,
distribution and monitoring program consistent with the
overall provisions of this Act and the guidelines of the
DOH.
Thus, in the distribution by the DOH of contraceptive drugs
and devices, it must consider the provisions of R.A. No.
4729, which is still in effect, and ensure that the
contraceptives that it will procure shall be from a duly
licensed drug store or pharmaceutical company and that
the actual dispensation of these contraceptive drugs and
devices will done following a prescription of a qualified
medical practitioner. The distribution of contraceptive
drugs and devices must not be indiscriminately done. The
public health must be protected by all possible means. As
pointed out by Justice De Castro, a heavy responsibility
and burden are assumed by the government in supplying
contraceptive drugs and devices, for it may be held
accountable for any injury, illness or loss of life resulting
from or incidental to their use.187
At any rate, it bears pointing out that not a single
contraceptive has yet been submitted to the FDA pursuant
to the RH Law. It behooves the Court to await its
determination which drugs or devices are declared by the
FDA as safe, it being the agency tasked to ensure that food
and medicines available to the public are safe for public
consumption. Consequently, the Court finds that, at this
point, the attack on the RH Law on this ground is
premature. Indeed, the various kinds of contraceptives
must first be measured up to the constitutional yardstick
as expounded herein, to be determined as the case
presents itself.
At this point, the Court is of the strong view that Congress
cannot legislate that hormonal contraceptives and intrauterine devices are safe and non-abortifacient. The first
sentence of Section 9 that ordains their inclusion by the
National Drug Formulary in the EDL by using the
mandatory "shall" is to be construed as operative only
after they have been tested, evaluated, and approved by
the FDA. The FDA, not Congress, has the expertise to
determine whether a particular hormonal contraceptive or
intrauterine device is safe and non-abortifacient. The

92

provision of the third sentence concerning the

requirements for the inclusion or removal of a particular
family planning supply from the EDL supports this
construction.
Stated differently, the provision in Section 9 covering the
inclusion of hormonal contraceptives, intra-uterine
devices, injectables, and other safe, legal, nonabortifacient and effective family planning products and
supplies by the National Drug Formulary in the EDL is not
mandatory. There must first be a determination by the
FDA that they are in fact safe, legal, non-abortifacient and
effective family planning products and supplies. There can
be no predetermination by Congress that the gamut of
contraceptives are "safe, legal, non-abortifacient and
effective" without the proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and
tubal ligation are not covered by the constitutional
proscription, there are those who, because of their
religious education and background, sincerely believe that
contraceptives, whether abortifacient or not, are evil.
Some of these are medical practitioners who essentially
claim that their beliefs prohibit not only the use of
contraceptives but also the willing participation and
cooperation in all things dealing with contraceptive use.
Petitioner PAX explained that "contraception is gravely
opposed to marital chastity, it is contrary to the good of
the transmission of life, and to the reciprocal self-giving of
the spouses; it harms true love and denies the sovereign
rule of God in the transmission of Human life."188
The petitioners question the State-sponsored
procurement of contraceptives, arguing that the
expenditure of their taxes on contraceptives violates the
guarantee of religious freedom since contraceptives
contravene their religious beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law
attempts to address religious sentiments by making
provisions for a conscientious objector, the constitutional
guarantee is nonetheless violated because the law also
imposes upon the conscientious objector the duty to refer
the patient seeking reproductive health services to
another medical practitioner who would be able to
provide for the patient's needs. For the petitioners, this

amounts to requiring the conscientious objector to

cooperate with the very thing he refuses to do without
violating his/her religious beliefs.190
They further argue that even if the conscientious
objector's duty to refer is recognized, the recognition is
unduly limited, because although it allows a conscientious
objector in Section 23 (a)(3) the option to refer a patient
seeking reproductive health services and information - no
escape is afforded the conscientious objector in Section 23
(a)(l) and (2), i.e. against a patient seeking reproductive
health procedures. They claim that the right of other
individuals to conscientiously object, such as: a) those
working in public health facilities referred to in Section 7;
b) public officers involved in the implementation of the
law referred to in Section 23(b ); and c) teachers in public
schools referred to in Section 14 of the RH Law, are also
not recognize.191
Petitioner Echavez and the other medical practitioners
meanwhile, contend that the requirement to refer the
matter to another health care service provider is still
considered a compulsion on those objecting healthcare
service providers. They add that compelling them to do
the act against their will violates the Doctrine of
Benevolent Neutrality. Sections 9, 14 and 1 7 of the law
are too secular that they tend to disregard the religion of
Filipinos. Authorizing the use of contraceptives with
abortive effects, mandatory sex education, mandatory
pro-bono reproductive health services to indigents
encroach upon the religious freedom of those upon whom
they are required.192
Petitioner CFC also argues that the requirement for a
conscientious objector to refer the person seeking
reproductive health care services to another provider
infringes on one's freedom of religion as it forces the
objector to become an unwilling participant in the
commission of a serious sin under Catholic teachings.
While the right to act on one's belief may be regulated by
the State, the acts prohibited by the RH Law are passive
acts which produce neither harm nor injury to the
public.193
Petitioner CFC adds that the RH Law does not show
compelling state interest to justify regulation of religious
freedom because it mentions no emergency, risk or threat
that endangers state interests. It does not explain how the
rights of the people (to equality, non-discrimination of
rights, sustainable human development, health, education,
information, choice and to make decisions according to
religious convictions, ethics, cultural beliefs and the
demands of responsible parenthood) are being threatened
or are not being met as to justify the impairment of
religious freedom.194

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Finally, the petitioners also question Section 15 of the RH

Law requiring would-be couples to attend family planning
and responsible parenthood seminars and to obtain a
certificate of compliance. They claim that the provision
forces individuals to participate in the implementation of
the RH Law even if it contravenes their religious
beliefs.195 As the assailed law dangles the threat of penalty
of fine and/or imprisonment in case of non-compliance
with its provisions, the petitioners claim that the RH Law
forcing them to provide, support and facilitate access and
information to contraception against their beliefs must be
struck down as it runs afoul to the constitutional
guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH
Law does not provide that a specific mode or type of
contraceptives be used, be it natural or artificial. It neither
imposes nor sanctions any religion or belief.196 They point
out that the RH Law only seeks to serve the public interest
by providing accessible, effective and quality reproductive
health services to ensure maternal and child health, in line
with the State's duty to bring to reality the social justice
health guarantees of the Constitution,197 and that what
the law only prohibits are those acts or practices, which
deprive others of their right to reproductive
health.198 They assert that the assailed law only seeks to
guarantee informed choice, which is an assurance that no
one will be compelled to violate his religion against his
free will.199
The respondents add that by asserting that only natural
family planning should be allowed, the petitioners are
effectively going against the constitutional right to
religious freedom, the same right they invoked to assail
the constitutionality of the RH Law.200 In other words, by
seeking the declaration that the RH Law is
unconstitutional, the petitioners are asking that the Court
recognize only the Catholic Church's sanctioned natural
family planning methods and impose this on the entire
citizenry.201
With respect to the duty to refer, the respondents insist
that the same does not violate the constitutional
guarantee of religious freedom, it being a carefully
balanced compromise between the interests of the
religious objector, on one hand, who is allowed to keep
silent but is required to refer -and that of the citizen who
needs access to information and who has the right to
expect that the health care professional in front of her will
act professionally. For the respondents, the concession
given by the State under Section 7 and 23(a)(3) is sufficient
accommodation to the right to freely exercise one's
religion without unnecessarily infringing on the rights of
others.202

Whatever burden is placed on the petitioner's religious

freedom is minimal as the duty to refer is limited in
duration, location and impact.203
Regarding mandatory family planning seminars under
Section 15 , the respondents claim that it is a reasonable
regulation providing an opportunity for would-be couples
to have access to information regarding parenthood,
family planning, breastfeeding and infant nutrition. It is
argued that those who object to any information received
on account of their attendance in the required seminars
are not compelled to accept information given to them.
They are completely free to reject any information they do
not agree with and retain the freedom to decide on
matters of family life without intervention of the State.204
For their part, respondents De Venecia et al., dispute the
notion that natural family planning is the only method
acceptable to Catholics and the Catholic hierarchy. Citing
various studies and surveys on the matter, they highlight
the changing stand of the Catholic Church on
contraception throughout the years and note the general
acceptance of the benefits of contraceptives by its
followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a
heterogeneous society. It is made up of people of diverse
ethnic, cultural and religious beliefs and backgrounds.
History has shown us that our government, in law and in
practice, has allowed these various religious, cultural,
social and racial groups to thrive in a single society
together. It has embraced minority groups and is tolerant
towards all - the religious people of different sects and the
non-believers. The undisputed fact is that our people
generally believe in a deity, whatever they conceived Him
to be, and to whom they call for guidance and
enlightenment in crafting our fundamental law. Thus, the
preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of
Almighty God, in order to build a just and humane society,
and establish a Government that shall embody our ideals
and aspirations, promote the common good, conserve and
develop our patrimony, and secure to ourselves and our
posterity, the blessings of independence and democracy
under the rule of law and a regime of truth, justice,
freedom, love, equality, and peace, do ordain and
promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God "
manifested their spirituality innate in our nature and
consciousness as a people, shaped by tradition and
historical experience. As this is embodied in the preamble,
it means that the State recognizes with respect the
influence of religion in so far as it instills into the mind the

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purest principles of morality.205 Moreover, in recognition

of the contributions of religion to society, the 1935, 1973
and 1987 constitutions contain benevolent and
accommodating provisions towards religions such as tax
exemption of church property, salary of religious officers
in government institutions, and optional religious
instructions in public schools.
The Framers, however, felt the need to put up a strong
barrier so that the State would not encroach into the
affairs of the church, and vice-versa. The principle of
separation of Church and State was, thus, enshrined in
Article II, Section 6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be
inviolable.
Verily, the principle of separation of Church and State is
based on mutual respect.1wphi1 Generally, the State
cannot meddle in the internal affairs of the church, much
less question its faith and dogmas or dictate upon it. It
cannot favor one religion and discriminate against
another. On the other hand, the church cannot impose its
beliefs and convictions on the State and the rest of the
citizenry. It cannot demand that the nation follow its
beliefs, even if it sincerely believes that they are good for
the country.
Consistent with the principle that not any one religion
should ever be preferred over another, the Constitution in
the above-cited provision utilizes the term "church" in its
generic sense, which refers to a temple, a mosque, an
iglesia, or any other house of God which metaphorically
symbolizes a religious organization. Thus, the "Church"
means the religious congregations collectively.
Balancing the benefits that religion affords and the need
to provide an ample barrier to protect the State from the
pursuit of its secular objectives, the Constitution lays down
the following mandate in Article III, Section 5 and Article
VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall
be required for the exercise of civil or political rights.
Section 29.

sectarian institution, or system of religion, or of any priest,

preacher, minister, other religious teacher, or dignitary as
such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom
provides two guarantees: the Establishment Clause and
the Free Exercise Clause.
The establishment clause "principally prohibits the State
from sponsoring any religion or favoring any religion as
against other religions. It mandates a strict neutrality in
affairs among religious groups."206 Essentially, it prohibits
the establishment of a state religion and the use of public
resources for the support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is
the respect for the inviolability of the human
conscience.207 Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering
with the outside manifestations of one's belief and
faith.208 Explaining the concept of religious freedom, the
Court, in Victoriano v. Elizalde Rope Workers
Union209 wrote:
The constitutional provisions not only prohibits legislation
for the support of any religious tenets or the modes of
worship of any sect, thus forestalling compulsion by law of
the acceptance of any creed or the practice of any form of
worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153),
but also assures the free exercise of one's chosen form of
religion within limits of utmost amplitude. It has been said
that the religion clauses of the Constitution are all
designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he
ought to live, consistent with the liberty of others and with
the common good. Any legislation whose effect or
purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the
religions, is invalid, even though the burden may be
characterized as being only indirect. (Sherbert v. Verner,
374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the
state regulates conduct by enacting, within its power, a
general law which has for its purpose and effect to
advance the state's secular goals, the statute is valid
despite its indirect burden on religious observance, unless
the state can accomplish its purpose without imposing
such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d.
563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420,
444-5 and 449).

xxx.
As expounded in Escritor,
No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination,

The establishment and free exercise clauses were not

designed to serve contradictory purposes. They have a

95

single goal-to promote freedom of individual religious

beliefs and practices. In simplest terms, the free exercise
clause prohibits government from inhibiting religious
beliefs with penalties for religious beliefs and practice,
while the establishment clause prohibits government from
inhibiting religious belief with rewards for religious beliefs
and practices. In other words, the two religion clauses
were intended to deny government the power to use
either the carrot or the stick to influence individual
religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion
is the principle that the guarantee of religious freedom is
comprised of two parts: the freedom to believe, and the
freedom to act on one's belief. The first part is absolute. As
explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless
bounded only by one's imagination and thought. So is the
freedom of belief, including religious belief, limitless and
without bounds. One may believe in most anything,
however strange, bizarre and unreasonable the same may
appear to others, even heretical when weighed in the
scales of orthodoxy or doctrinal standards. But between
the freedom of belief and the exercise of said belief, there
is quite a stretch of road to travel.212
The second part however, is limited and subject to the
awesome power of the State and can be enjoyed only with
proper regard to the rights of others. It is "subject to
regulation where the belief is translated into external acts
that affect the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause
and the State, the Court adheres to the doctrine of
benevolent neutrality. This has been clearly decided by the
Court in Estrada v. Escritor, (Escritor)214 where it was
stated "that benevolent neutrality-accommodation,
whether mandatory or permissive, is the spirit, intent and
framework underlying the Philippine Constitution."215 In
the same case, it was further explained that"
The benevolent neutrality theory believes that with
respect to these governmental actions, accommodation of
religion may be allowed, not to promote the government's
favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. "The
purpose of accommodation is to remove a burden on, or
facilitate the exercise of, a person's or institution's
religion."216 "What is sought under the theory of
accommodation is not a declaration of unconstitutionality
of a facially neutral law, but an exemption from its

application or its 'burdensome effect,' whether by the

legislature or the courts."217
In ascertaining the limits of the exercise of religious
freedom, the compelling state interest test is
proper.218Underlying the compelling state interest test is
the notion that free exercise is a fundamental right and
that laws burdening it should be subject to strict
scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to
determine these limits. Beginning with the first case on the
Free Exercise Clause, American Bible Society, the Court
mentioned the "clear and present danger" test but did not
employ it. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona case
then pronounced that the test of permissibility of religious
freedom is whether it violates the established institutions
of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine
that a law of general applicability may burden religious
exercise provided the law is the least restrictive means to
accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After
Victoriano , German went back to the Gerona rule.
Ebralinag then employed the "grave and immediate
danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the " clear and
present danger" test in the maiden case of A merican Bible
Society. Not surprisingly, all the cases which employed the
"clear and present danger" or "grave and immediate
danger" test involved, in one form or another, religious
speech as this test is often used in cases on freedom of
expression. On the other hand, the Gerona and German
cases set the rule that religious freedom will not prevail
over established institutions of society and law. Gerona,
however, which was the authority cited by German has
been overruled by Ebralinag which employed the "grave
and immediate danger" test . Victoriano was the only case
that employed the "compelling state interest" test, but as
explained previously, the use of the test was inappropriate
to the facts of the case.
The case at bar does not involve speech as in A merican
Bible Society, Ebralinag and Iglesia ni Cristo where the
"clear and present danger" and "grave and immediate
danger" tests were appropriate as speech has easily
discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not
congruent with the benevolent neutrality approach, thus
not appropriate in this jurisdiction. Similar to Victoriano,
the present case involves purely conduct arising from
religious belief. The "compelling state interest" test is
proper where conduct is involved for the whole gamut of
human conduct has different effects on the state's
interests: some effects may be immediate and short-term
while others delayed and far-reaching. A test that would
protect the interests of the state in preventing a

96

substantive evil, whether immediate or delayed, is

therefore necessary. However, not any interest of the
state would suffice to prevail over the right to religious
freedom as this is a fundamental right that enjoys a
preferred position in the hierarchy of rights - "the most
inalienable and sacred of all human rights", in the words of
Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The
entire constitutional order of limited government is
premised upon an acknowledgment of such higher
sovereignty, thus the Filipinos implore the "aid of Almighty
God in order to build a just and humane society and
establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit
this fundamental right. A mere balancing of interests
which balances a right with just a colorable state interest is
therefore not appropriate. Instead, only a compelling
interest of the state can prevail over the fundamental right
to religious liberty. The test requires the state to carry a
heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less
powerful ones until they are destroyed. In determining
which shall prevail between the state's interest and
religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering
religious liberty while at the same time affording
protection to the paramount interests of the state. This
was the test used in Sherbert which involved conduct, i.e.
refusal to work on Saturdays. In the end, the "compelling
state interest" test, by upholding the paramount interests
of the state, seeks to protect the very state, without
which, religious liberty will not be preserved. [Emphases in
the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the
Court to determine whether the use of contraceptives or
one's participation in the support of modem reproductive
health measures is moral from a religious standpoint or
whether the same is right or wrong according to one's
dogma or belief. For the Court has declared that matters
dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are
unquestionably ecclesiastical matters which are outside
the province of the civil courts."220 The jurisdiction of the
Court extends only to public and secular morality.
Whatever pronouncement the Court makes in the case at
bench should be understood only in this realm where it
has authority. Stated otherwise, while the Court stands
without authority to rule on ecclesiastical matters, as
vanguard of the Constitution, it does have authority to
determine whether the RH Law contravenes the guarantee
of religious freedom.
At first blush, it appears that the RH Law recognizes and
respects religion and religious beliefs and convictions. It is
replete with assurances the no one can be compelled to

violate the tenets of his religion or defy his religious

convictions against his free will. Provisions in the RH Law
respecting religious freedom are the following:
1. The State recognizes and guarantees the human rights
of all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable
human development, the right to health which includes
reproductive health, the right to education and
information, and the right to choose and make decisions
for themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the demands of
responsible parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social
institution and the foundation of the family which in turn
is the foundation of the nation. Pursuant thereto, the
State shall defend:
(a) The right of spouses to found a family in accordance
with their religious convictions and the demands of
responsible parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and
access, without bias, to all methods of family planning,
including effective natural and modern methods which
have been proven medically safe, legal, non-abortifacient,
and effective in accordance with scientific and evidencebased medical research standards such as those registered
and approved by the FDA for the poor and marginalized as
identified through the NHTS-PR and other government
measures of identifying marginalization: Provided, That
the State shall also provide funding support to promote
modern natural methods of family planning, especially the
Billings Ovulation Method, consistent with the needs of
acceptors and their religious convictions. [Section 3(e),
Declaration of Policy]
4. The State shall promote programs that: (1) enable
individuals and couples to have the number of children
they desire with due consideration to the health,
particularly of women, and the resources available and
affordable to them and in accordance with existing laws,
public morals and their religious convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and
choice of family planning methods that are in accordance
with their religious convictions and cultural beliefs, taking
into consideration the State's obligations under various
human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations
(NGOs) , women's and people's organizations, civil society,
faith-based organizations, the religious sector and
communities is crucial to ensure that reproductive health
and population and development policies, plans, and

97

programs will address the priority needs of women, the

poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of
a parent to respond to the needs and aspirations of the
family and children. It is likewise a shared responsibility
between parents to determine and achieve the desired
number of children, spacing and timing of their children
according to their own family life aspirations, taking into
account psychological preparedness, health status,
sociocultural and economic concerns consistent with their
religious convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were
enacted allowing the use of contraceptives. To some
medical practitioners, however, the whole idea of using
contraceptives is an anathema. Consistent with the
principle of benevolent neutrality, their beliefs should be
respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts
what the government can do with religion, it also limits
what religious sects can or cannot do with the
government. They can neither cause the government to
adopt their particular doctrines as policy for everyone, nor
can they not cause the government to restrict other
groups. To do so, in simple terms, would cause the State to
adhere to a particular religion and, thus, establishing a
state religion.
Consequently, the petitioners are misguided in their
supposition that the State cannot enhance its population
control program through the RH Law simply because the
promotion of contraceptive use is contrary to their
religious beliefs. Indeed, the State is not precluded to
pursue its legitimate secular objectives without being
dictated upon by the policies of any one religion. One
cannot refuse to pay his taxes simply because it will cloud
his conscience. The demarcation line between Church and
State demands that one render unto Caesar the things
that are Caesar's and unto God the things that are
God's.221

care and services under the law to another accessible

healthcare provider despite their conscientious objections
based on religious or ethical beliefs.
In a situation where the free exercise of religion is
allegedly burdened by government legislation or practice,
the compelling state interest test in line with the Court's
espousal of the Doctrine of Benevolent Neutrality in
Escritor, finds application. In this case, the conscientious
objector's claim to religious freedom would warrant an
exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling
state interest in the accomplishment of an important
secular objective. Necessarily so, the plea of conscientious
objectors for exemption from the RH Law deserves no less
than strict scrutiny.
In applying the test, the first inquiry is whether a
conscientious objector's right to religious freedom has
been burdened. As in Escritor, there is no doubt that an
intense tug-of-war plagues a conscientious objector. One
side coaxes him into obedience to the law and the
abandonment of his religious beliefs, while the other
entices him to a clean conscience yet under the pain of
penalty. The scenario is an illustration of the predicament
of medical practitioners whose religious beliefs are
incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer
imposed by the RH Law violates the religious belief and
conviction of a conscientious objector. Once the medical
practitioner, against his will, refers a patient seeking
information on modem reproductive health products,
services, procedures and methods, his conscience is
immediately burdened as he has been compelled to
perform an act against his beliefs. As Commissioner
Joaquin A. Bernas (Commissioner Bernas) has written, "at
the basis of the free exercise clause is the respect for the
inviolability of the human conscience.222
Though it has been said that the act of referral is an optout clause, it is, however, a false compromise because it
makes pro-life health providers complicit in the
performance of an act that they find morally repugnant or
offensive. They cannot, in conscience, do indirectly what
they cannot do directly. One may not be the principal, but
he is equally guilty if he abets the offensive act by indirect
participation.

The Free Exercise Clause and the Duty to Refer

While the RH Law, in espousing state policy to promote
reproductive health manifestly respects diverse religious
beliefs in line with the Non-Establishment Clause, the
same conclusion cannot be reached with respect to
Sections 7, 23 and 24 thereof. The said provisions
commonly mandate that a hospital or a medical
practitioner to immediately refer a person seeking health

Moreover, the guarantee of religious freedom is

necessarily intertwined with the right to free speech, it
being an externalization of one's thought and conscience.
This in turn includes the right to be silent. With the
constitutional guarantee of religious freedom follows the
protection that should be afforded to individuals in
communicating their beliefs to others as well as the
protection for simply being silent. The Bill of Rights

98

guarantees the liberty of the individual to utter what is in

his mind and the liberty not to utter what is not in his
mind.223 While the RH Law seeks to provide freedom of
choice through informed consent, freedom of choice
guarantees the liberty of the religious conscience and
prohibits any degree of compulsion or burden, whether
direct or indirect, in the practice of one's religion.224
In case of conflict between the religious beliefs and moral
convictions of individuals, on one hand, and the interest of
the State, on the other, to provide access and information
on reproductive health products, services, procedures and
methods to enable the people to determine the timing,
number and spacing of the birth of their children, the
Court is of the strong view that the religious freedom of
health providers, whether public or private, should be
accorded primacy. Accordingly, a conscientious objector
should be exempt from compliance with the mandates of
the RH Law. If he would be compelled to act contrary to
his religious belief and conviction, it would be violative of
"the principle of non-coercion" enshrined in the
constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of
the Court of Session, found in the case of Doogan and
Wood v. NHS Greater Glasgow and Clyde Health
Board,225 that the midwives claiming to be conscientious
objectors under the provisions of Scotland's Abortion Act
of 1967, could not be required to delegate, supervise or
support staff on their labor ward who were involved in
abortions.226 The Inner House stated "that if 'participation'
were defined according to whether the person was taking
part 'directly' or ' indirectly' this would actually mean more
complexity and uncertainty."227
While the said case did not cover the act of referral, the
applicable principle was the same - they could not be
forced to assist abortions if it would be against their
conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity
specialty hospitals and hospitals owned and operated by a
religious group and health care service providers.
Considering that Section 24 of the RH Law penalizes such
institutions should they fail or refuse to comply with their
duty to refer under Section 7 and Section 23(a)(3), the
Court deems that it must be struck down for being
violative of the freedom of religion. The same applies to
Section 23(a)(l) and (a)(2) in relation to Section 24,
considering that in the dissemination of information
regarding programs and services and in the performance
of reproductive health procedures, the religious freedom
of health care service providers should be respected.

In the case of Islamic Da'wah Council of the Philippines,

Inc. v. Office of the Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the
framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that
it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he
ought to live, consistent with the liberty of others and with
the common good."10
The Court is not oblivious to the view that penalties
provided by law endeavour to ensure compliance. Without
set consequences for either an active violation or mere
inaction, a law tends to be toothless and ineffectual.
Nonetheless, when what is bartered for an effective
implementation of a law is a constitutionally-protected
right the Court firmly chooses to stamp its disapproval.
The punishment of a healthcare service provider, who fails
and/or refuses to refer a patient to another, or who
declines to perform reproductive health procedure on a
patient because incompatible religious beliefs, is a clear
inhibition of a constitutional guarantee which the Court
cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as
provincial, city or municipal health officers, chiefs of
hospital, head nurses, supervising midwives, among
others, who by virtue of their office are specifically
charged with the duty to implement the provisions of the
RPRH Act and these Rules, cannot be considered as
conscientious objectors.
This is discriminatory and violative of the equal protection
clause. The conscientious objection clause should be
equally protective of the religious belief of public health
officers. There is no perceptible distinction why they
should not be considered exempt from the mandates of
the law. The protection accorded to other conscientious
objectors should equally apply to all medical practitioners
without distinction whether they belong to the public or
private sector. After all, the freedom to believe is intrinsic
in every individual and the protective robe that guarantees
its free exercise is not taken off even if one acquires
employment in the government.
It should be stressed that intellectual liberty occupies a
place inferior to none in the hierarchy of human values.
The mind must be free to think what it wills, whether in
the secular or religious sphere, to give expression to its
beliefs by oral discourse or through the media and, thus,
seek other candid views in occasions or gatherings or in

99

more permanent aggrupation. Embraced in such concept

then are freedom of religion, freedom of speech, of the
press, assembly and petition, and freedom of
association.229

Your Honor, if there is any conflict between the IRR and

the law, the law must prevail.230

The discriminatory provision is void not only because no

such exception is stated in the RH Law itself but also
because it is violative of the equal protection clause in the
Constitution. Quoting respondent Lagman, if there is any
conflict between the RH-IRR and the RH Law, the law must
prevail.

The foregoing discussion then begets the question on

whether the respondents, in defense of the subject
provisions, were able to: 1] demonstrate a more
compelling state interest to restrain conscientious
objectors in their choice of services to render; and 2]
discharge the burden of proof that the obligatory
character of the law is the least intrusive means to achieve
the objectives of the law.

Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- inIntervention on page 52, you mentioned RH Law is replete
with provisions in upholding the freedom of religion and
respecting religious convictions. Earlier, you affirmed this
with qualifications. Now, you have read, I presumed you
have read the IRR-Implementing Rules and Regulations of
the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long
IRR and I have not thoroughly dissected the nuances of the
provisions.

Compelling State Interest

Unfortunately, a deep scrutiny of the respondents'

submissions proved to be in vain. The OSG was curiously
silent in the establishment of a more compelling state
interest that would rationalize the curbing of a
conscientious objector's right not to adhere to an action
contrary to his religious convictions. During the oral
arguments, the OSG maintained the same silence and
evasion. The Transcripts of the Stenographic Notes
disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to
refer. ..

Justice Mendoza:
Senior State Solicitor Hilbay:
I will read to you one provision. It's Section 5.24. This I
cannot find in the RH Law. But in the IRR it says: " ....
skilled health professionals such as provincial, city or
municipal health officers, chief of hospitals, head nurses,
supervising midwives, among others, who by virtue of
their office are specifically charged with the duty to
implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors." Do you
agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the
private practitioners who can be conscientious objectors,
skilled health professionals cannot be considered
conscientious objectors. Do you agree with this? Is this not
against the constitutional right to the religious belief?
Congressman Lagman:

Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad.
What is the compelling State interest in imposing this duty
to refer to a conscientious objector which refuses to do so
because of his religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this
burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the
standard is a compelling State interest, this is an ordinary
health legislation involving professionals. This is not a free

100

speech matter or a pure free exercise matter. This is a

regulation by the State of the relationship between
medical doctors and their patients.231
Resultantly, the Court finds no compelling state interest
which would limit the free exercise clause of the
conscientious objectors, however few in number. Only the
prevention of an immediate and grave danger to the
security and welfare of the community can justify the
infringement of religious freedom. If the government fails
to show the seriousness and immediacy of the threat,
State intrusion is constitutionally unacceptable.232
Freedom of religion means more than just the freedom to
believe. It also means the freedom to act or not to act
according to what one believes. And this freedom is
violated when one is compelled to act against one's belief
or is prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger
to the life or health of an individual in the perceived
scenario of the subject provisions. After all, a couple who
plans the timing, number and spacing of the birth of their
children refers to a future event that is contingent on
whether or not the mother decides to adopt or use the
information, product, method or supply given to her or
whether she even decides to become pregnant at all. On
the other hand, the burden placed upon those who object
to contraceptive use is immediate and occurs the moment
a patient seeks consultation on reproductive health
matters.

At any rate, there are other secular steps already taken by

the Legislature to ensure that the right to health is
protected. Considering other legislations as they stand
now, R.A . No. 4 729 or the Contraceptive Act, R.A. No.
6365 or "The Population Act of the Philippines" and R.A.
No. 9710, otherwise known as "The Magna Carta of
Women," amply cater to the needs of women in relation
to health services and programs. The pertinent provision
of Magna Carta on comprehensive health services and
programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive
Health Services. - The State shall, at all times, provide for a
comprehensive, culture-sensitive, and gender-responsive
health services and programs covering all stages of a
woman's life cycle and which addresses the major causes
of women's mortality and morbidity: Provided, That in the
provision for comprehensive health services, due respect
shall be accorded to women's religious convictions, the
rights of the spouses to found a family in accordance with
their religious convictions, and the demands of responsible
parenthood, and the right of women to protection from
hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and
post-natal services to address
pregnancy and infant health and
nutrition;
(2) Promotion of breastfeeding;

Moreover, granting that a compelling interest exists to

justify the infringement of the conscientious objector's
religious freedom, the respondents have failed to
demonstrate "the gravest abuses, endangering paramount
interests" which could limit or override a person's
fundamental right to religious freedom. Also, the
respondents have not presented any government effort
exerted to show that the means it takes to achieve its
legitimate state objective is the least intrusive
means.234 Other than the assertion that the act of referring
would only be momentary, considering that the act of
referral by a conscientious objector is the very action
being contested as violative of religious freedom, it
behooves the respondents to demonstrate that no other
means can be undertaken by the State to achieve its
objective without violating the rights of the conscientious
objector. The health concerns of women may still be
addressed by other practitioners who may perform
reproductive health-related procedures with open
willingness and motivation. Suffice it to say, a person who
is forced to perform an act in utter reluctance deserves
the protection of the Court as the last vanguard of
constitutional freedoms.

(3) Responsible, ethical, legal, safe, and

effective methods of family planning;
(4) Family and State collaboration in
youth sexuality education and health
services without prejudice to the
primary right and duty of parents to
educate their children;
(5) Prevention and management of
reproductive tract infections, including
sexually transmitted diseases, HIV, and
AIDS;
(6) Prevention and management of
reproductive tract cancers like breast
and cervical cancers, and other
gynecological conditions and disorders;
(7) Prevention of abortion and
management of pregnancy-related
complications;

101

(8) In cases of violence against women

and children, women and children
victims and survivors shall be provided
with comprehensive health services
that include psychosocial, therapeutic,
medical, and legal interventions and
assistance towards healing, recovery,
and empowerment;
(9) Prevention and management of
infertility and sexual dysfunction
pursuant to ethical norms and medical
standards;
(10) Care of the elderly women beyond
their child-bearing years; and
(11) Management, treatment, and
intervention of mental health
problems of women and girls. In
addition, healthy lifestyle activities are
encouraged and promoted through
programs and projects as strategies in
the prevention of diseases.
(b) Comprehensive Health Information and Education. The State shall provide women in all sectors with
appropriate, timely, complete, and accurate information
and education on all the above-stated aspects of women's
health in government education and training programs,
with due regard to the following:
(1) The natural and primary right and
duty of parents in the rearing of the
youth and the development of moral
character and the right of children to
be brought up in an atmosphere of
morality and rectitude for the
enrichment and strengthening of
character;
(2) The formation of a person's
sexuality that affirms human dignity;
and
(3) Ethical, legal, safe, and effective
family planning methods including
fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay
eventually replied that the compelling state interest was
"Fifteen maternal deaths per day, hundreds of thousands
of unintended pregnancies, lives changed, x x x."235 He,
however, failed to substantiate this point by concrete facts
and figures from reputable sources.

The undisputed fact, however, is that the World Health

Organization reported that the Filipino maternal mortality
rate dropped to 48 percent from 1990 to
2008, 236 although there was still no RH Law at that time.
Despite such revelation, the proponents still insist that
such number of maternal deaths constitute a compelling
state interest.
Granting that there are still deficiencies and flaws in the
delivery of social healthcare programs for Filipino women,
they could not be solved by a measure that puts an
unwarrantable stranglehold on religious beliefs in
exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a
valid exception set forth in the law. While generally
healthcare service providers cannot be forced to render
reproductive health care procedures if doing it would
contravene their religious beliefs, an exception must be
made in life-threatening cases that require the
performance of emergency procedures. In these
situations, the right to life of the mother should be given
preference, considering that a referral by a medical
practitioner would amount to a denial of service, resulting
to unnecessarily placing the life of a mother in grave
danger. Thus, during the oral arguments, Atty. Liban,
representing CFC, manifested: "the forced referral clause
that we are objecting on grounds of violation of freedom
of religion does not contemplate an emergency."237
In a conflict situation between the life of the mother and
the life of a child, the doctor is morally obliged always to
try to save both lives. If, however, it is impossible, the
resulting death to one should not be deliberate. Atty.
Noche explained:
Principle of Double-Effect. - May we please remind the
principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein
intentional harm on the life of either the mother of the
child is never justified to bring about a "good" effect. In a
conflict situation between the life of the child and the life
of the mother, the doctor is morally obliged always to try
to save both lives. However, he can act in favor of one (not
necessarily the mother) when it is medically impossible to
save both, provided that no direct harm is intended to the
other. If the above principles are observed, the loss of the
child's life or the mother's life is not intentional and,
therefore, unavoidable. Hence, the doctor would not be
guilty of abortion or murder. The mother is never pitted
against the child because both their lives are equally
valuable.238
Accordingly, if it is necessary to save the life of a mother,
procedures endangering the life of the child may be

102

resorted to even if is against the religious sentiments of

the medical practitioner. As quoted above, whatever
burden imposed upon a medical practitioner in this case
would have been more than justified considering the life
he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a
condition for the issuance of a marriage license, the Court
finds the same to be a reasonable exercise of police power
by the government. A cursory reading of the assailed
provision bares that the religious freedom of the
petitioners is not at all violated. All the law requires is for
would-be spouses to attend a seminar on parenthood,
family planning breastfeeding and infant nutrition. It does
not even mandate the type of family planning methods to
be included in the seminar, whether they be natural or
artificial. As correctly noted by the OSG, those who receive
any information during their attendance in the required
seminars are not compelled to accept the information
given to them, are completely free to reject the
information they find unacceptable, and retain the
freedom to decide on matters of family life without the
intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2)
(i) thereof violates the provisions of the Constitution by
intruding into marital privacy and autonomy. It argues that
it cultivates disunity and fosters animosity in the family
rather than promote its solidarity and total
development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions
strengthening the family as it is the basic social institution.
In fact, one article, Article XV, is devoted entirely to the
family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall strengthen
its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is
the foundation of the family and shall be protected by the
State.
Section 3. The State shall defend:

The right of spouses to found a family in accordance with

their religious convictions and the demands of responsible
parenthood;
The right of children to assistance, including proper care
and nutrition, and special protection from all forms of
neglect, abuse, cruelty, exploitation and other conditions
prejudicial to their development;
The right of the family to a family living wage and income;
and
The right of families or family assoc1at1ons to participate
in the planning and implementation of policies and
programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to
control population growth, contains provisions which tend
to wreck the family as a solid social institution. It bars the
husband and/or the father from participating in the
decision making process regarding their common future
progeny. It likewise deprives the parents of their authority
over their minor daughter simply because she is already a
parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or
private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive
health procedures on any person of legal age on the
ground of lack of consent or authorization of the following
persons in the following instances:
(i) Spousal consent in case of married persons: provided,
That in case of disagreement, the decision of the one
undergoing the procedures shall prevail. [Emphasis
supplied]
The above provision refers to reproductive health
procedures like tubal litigation and vasectomy which, by
their very nature, should require mutual consent and
decision between the husband and the wife as they affect
issues intimately related to the founding of a family.
Section 3, Art. XV of the Constitution espouses that the
State shall defend the "right of the spouses to found a
family." One person cannot found a family. The right,
therefore, is shared by both spouses. In the same Section
3, their right "to participate in the planning and

103

implementation of policies and programs that affect them

" is equally recognized.
The RH Law cannot be allowed to infringe upon this
mutual decision-making. By giving absolute authority to
the spouse who would undergo a procedure, and barring
the other spouse from participating in the decision would
drive a wedge between the husband and wife, possibly
result in bitter animosity, and endanger the marriage and
the family, all for the sake of reducing the population. This
would be a marked departure from the policy of the State
to protect marriage as an inviolable social institution.241
Decision-making involving a reproductive health procedure
is a private matter which belongs to the couple, not just
one of them. Any decision they would reach would affect
their future as a family because the size of the family or
the number of their children significantly matters. The
decision whether or not to undergo the procedure belongs
exclusively to, and shared by, both spouses as one
cohesive unit as they chart their own destiny. It is a
constitutionally guaranteed private right. Unless it
prejudices the State, which has not shown any compelling
interest, the State should see to it that they chart their
destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19(
c) of R.A. No. 9710, otherwise known as the "Magna Carta
for Women," provides that women shall have equal rights
in all matters relating to marriage and family relations,
including the joint decision on the number and spacing of
their children. Indeed, responsible parenthood, as Section
3(v) of the RH Law states, is a shared responsibility
between parents. Section 23(a)(2)(i) of the RH Law should
not be allowed to betray the constitutional mandate to
protect and strengthen the family by giving to only one
spouse the absolute authority to decide whether to
undergo reproductive health procedure.242
The right to chart their own destiny together falls within
the protected zone of marital privacy and such state
intervention would encroach into the zones of spousal
privacy guaranteed by the Constitution. In our jurisdiction,
the right to privacy was first recognized in Marje v.
Mutuc,243 where the Court, speaking through Chief Justice
Fernando, held that "the right to privacy as such is
accorded recognition independently of its identification
with liberty; in itself, it is fully deserving of constitutional
protection."244 Marje adopted the ruling of the US
Supreme Court in Griswold v. Connecticut,245 where
Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights
-older than our political parties, older than our school
system. Marriage is a coming together for better or for
worse, hopefully enduring, and intimate to the degree of
being sacred. It is an association that promotes a way of

life, not causes; a harmony in living, not political faiths; a

bilateral loyalty, not commercial or social projects. Yet it is
an association for as noble a purpose as any involved in
our prior decisions.
Ironically, Griswold invalidated a Connecticut statute
which made the use of contraceptives a criminal offense
on the ground of its amounting to an unconstitutional
invasion of the right to privacy of married persons.
Nevertheless, it recognized the zone of privacy rightfully
enjoyed by couples. Justice Douglas in Grisworld wrote
that "specific guarantees in the Bill of Rights have
penumbras, formed by emanations from those guarantees
that help give them life and substance. Various guarantees
create zones of privacy."246
At any rate, in case of conflict between the couple, the
courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in
cases where the minor, who will be undergoing a
procedure, is already a parent or has had a miscarriage.
Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. x x x.
No person shall be denied information and access to
family planning services, whether natural or artificial:
Provided, That minors will not be allowed access to
modern methods of family planning without written
consent from their parents or guardian/s except when the
minor is already a parent or has had a miscarriage.
There can be no other interpretation of this provision
except that when a minor is already a parent or has had a
miscarriage, the parents are excluded from the decision
making process of the minor with regard to family
planning. Even if she is not yet emancipated, the parental
authority is already cut off just because there is a need to
tame population growth.
It is precisely in such situations when a minor parent needs
the comfort, care, advice, and guidance of her own
parents. The State cannot replace her natural mother and
father when it comes to providing her needs and comfort.
To say that their consent is no longer relevant is clearly
anti-family. It does not promote unity in the family. It is an
affront to the constitutional mandate to protect and
strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the
constitutional mandate that "the natural and primary right
and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall

104

receive the support of the Government."247 In this regard,

Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to
modify the right of parents. It imports the assertion that
the right of parents is superior to that of the
State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents
to exercise parental control over their minor-child or the
right of the spouses to mutually decide on matters which
very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in
the violation of one's privacy with respect to his family. It
would be dismissive of the unique and strongly-held
Filipino tradition of maintaining close family ties and
violative of the recognition that the State affords couples
entering into the special contract of marriage to as one
unit in forming the foundation of the family and society.
The State cannot, without a compelling state interest, take
over the role of parents in the care and custody of a minor
child, whether or not the latter is already a parent or has
had a miscarriage. Only a compelling state interest can
justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the
exception provided in the second paragraph of Section 7
or with respect to the consenting spouse under Section
23(a)(2)(i), a distinction must be made. There must be a
differentiation between access to information about
family planning services, on one hand, and access to the
reproductive health procedures and modern family
planning methods themselves, on the other. Insofar as
access to information is concerned, the Court finds no
constitutional objection to the acquisition of information
by the minor referred to under the exception in the
second paragraph of Section 7 that would enable her to
take proper care of her own body and that of her unborn
child. After all, Section 12, Article II of the Constitution
mandates the State to protect both the life of the mother
as that of the unborn child. Considering that information
to enable a person to make informed decisions is essential
in the protection and maintenance of ones' health, access
to such information with respect to reproductive health
must be allowed. In this situation, the fear that parents
might be deprived of their parental control is unfounded
because they are not prohibited to exercise parental
guidance and control over their minor child and assist her
in deciding whether to accept or reject the information
received.
Second Exception: Life Threatening Cases

As in the case of the conscientious objector, an exception

must be made in life-threatening cases that require the
performance of emergency procedures. In such cases, the
life of the minor who has already suffered a miscarriage
and that of the spouse should not be put at grave risk
simply for lack of consent. It should be emphasized that no
person should be denied the appropriate medical care
urgently needed to preserve the primordial right, that is,
the right to life.
In this connection, the second sentence of Section
23(a)(2)(ii)249 should be struck down. By effectively limiting
the requirement of parental consent to "only in elective
surgical procedures," it denies the parents their right of
parental authority in cases where what is involved are
"non-surgical procedures." Save for the two exceptions
discussed above, and in the case of an abused child as
provided in the first sentence of Section 23(a)(2)(ii), the
parents should not be deprived of their constitutional right
of parental authority. To deny them of this right would be
an affront to the constitutional mandate to protect and
strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to
Section 24 thereof, mandating the teaching of Age-and
Development-Appropriate Reproductive Health Education
under threat of fine and/or imprisonment violates the
principle of academic freedom . According to the
petitioners, these provisions effectively force educational
institutions to teach reproductive health education even if
they believe that the same is not suitable to be taught to
their students.250 Citing various studies conducted in the
United States and statistical data gathered in the country,
the petitioners aver that the prevalence of contraceptives
has led to an increase of out-of-wedlock births; divorce
and breakdown of families; the acceptance of abortion
and euthanasia; the "feminization of poverty"; the aging of
society; and promotion of promiscuity among the youth.251
At this point, suffice it to state that any attack on the
validity of Section 14 of the RH Law is premature because
the Department of Education, Culture and Sports has yet
to formulate a curriculum on age-appropriate reproductive
health education. One can only speculate on the content,
manner and medium of instruction that will be used to
educate the adolescents and whether they will contradict
the religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature nature of
this particular issue, the Court declines to rule on its
constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution
provides that the natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and
development of moral character shall receive the support

105

of the Government. Like the 1973 Constitution and the

1935 Constitution, the 1987 Constitution affirms the State
recognition of the invaluable role of parents in preparing
the youth to become productive members of society.
Notably, it places more importance on the role of parents
in the development of their children by recognizing that
said role shall be "primary," that is, that the right of
parents in upbringing the youth is superior to that of the
State.252
It is also the inherent right of the State to act as parens
patriae to aid parents in the moral development of the
youth. Indeed, the Constitution makes mention of the
importance of developing the youth and their important
role in nation building.253 Considering that Section 14
provides not only for the age-appropriate-reproductive
health education, but also for values formation; the
development of knowledge and skills in self-protection
against discrimination; sexual abuse and violence against
women and children and other forms of gender based
violence and teen pregnancy; physical, social and
emotional changes in adolescents; women's rights and
children's rights; responsible teenage behavior; gender
and development; and responsible parenthood, and that
Rule 10, Section 11.01 of the RH-IRR and Section 4(t) of the
RH Law itself provides for the teaching of responsible
teenage behavior, gender sensitivity and physical and
emotional changes among adolescents - the Court finds
that the legal mandate provided under the assailed
provision supplements, rather than supplants, the rights
and duties of the parents in the moral development of
their children.
Furthermore, as Section 14 also mandates that the
mandatory reproductive health education program shall
be developed in conjunction with parent-teachercommunity associations, school officials and other interest
groups, it could very well be said that it will be in line with
the religious beliefs of the petitioners. By imposing such a
condition, it becomes apparent that the petitioners'
contention that Section 14 violates Article XV, Section 3(1)
of the Constitution is without merit.254
While the Court notes the possibility that educators might
raise their objection to their participation in the
reproductive health education program provided under
Section 14 of the RH Law on the ground that the same
violates their religious beliefs, the Court reserves its
judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from
vagueness and, thus violates the due process clause of the
Constitution. According to them, Section 23 (a)(l) mentions
a "private health service provider" among those who may
be held punishable but does not define who is a "private

health care service provider." They argue that confusion

further results since Section 7 only makes reference to a
"private health care institution."
The petitioners also point out that Section 7 of the assailed
legislation exempts hospitals operated by religious groups
from rendering reproductive health service and modern
family planning methods. It is unclear, however, if these
institutions are also exempt from giving reproductive
health information under Section 23(a)(l), or from
rendering reproductive health procedures under Section
23(a)(2).
Finally, it is averred that the RH Law punishes the
withholding, restricting and providing of incorrect
information, but at the same time fails to define "incorrect
information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when
it lacks comprehensible standards that men of common
intelligence must necessarily guess its meaning and differ
as to its application. It is repugnant to the Constitution in
two respects: (1) it violates due process for failure to
accord persons, especially the parties targeted by it, fair
notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government
muscle.255 Moreover, in determining whether the words
used in a statute are vague, words must not only be taken
in accordance with their plain meaning alone, but also in
relation to other parts of the statute. It is a rule that every
part of the statute must be interpreted with reference to
the context, that is, every part of it must be construed
together with the other parts and kept subservient to the
general intent of the whole enactment.256
As correctly noted by the OSG, in determining the
definition of "private health care service provider,"
reference must be made to Section 4(n) of the RH Law
which defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public
health care institution, which is duly licensed and
accredited and devoted primarily to the maintenance and
operation of facilities for health promotion, disease
prevention, diagnosis, treatment and care of individuals
suffering from illness, disease, injury, disability or
deformity, or in need of obstetrical or other medical and
nursing care; (2) public health care professional, who is a
doctor of medicine, a nurse or a midvvife; (3) public health
worker engaged in the delivery of health care services; or
(4) barangay health worker who has undergone training
programs under any accredited government and NGO and
who voluntarily renders primarily health care services in
the community after having been accredited to function as

106

such by the local health board in accordance with the

guidelines promulgated by the Department of Health
(DOH) .
Further, the use of the term "private health care
institution" in Section 7 of the law, instead of "private
health care service provider," should not be a cause of
confusion for the obvious reason that they are used
synonymously.
The Court need not belabor the issue of whether the right
to be exempt from being obligated to render reproductive
health service and modem family planning methods,
includes exemption from being obligated to give
reproductive health information and to render
reproductive health procedures. Clearly, subject to the
qualifications and exemptions earlier discussed, the right
to be exempt from being obligated to render reproductive
health service and modem family planning methods,
necessarily includes exemption from being obligated to
give reproductive health information and to render
reproductive health procedures. The terms "service" and
"methods" are broad enough to include the providing of
information and the rendering of medical procedures.
The same can be said with respect to the contention that
the RH Law punishes health care service providers who
intentionally withhold, restrict and provide incorrect
information regarding reproductive health programs and
services. For ready reference, the assailed provision is
hereby quoted as follows:

information in accordance with what is acceptable in

medical practice. While health care service providers are
not barred from expressing their own personal opinions
regarding the programs and services on reproductive
health, their right must be tempered with the need to
provide public health and safety. The public deserves no
less.
7-Egual Protection
The petitioners also claim that the RH Law violates the
equal protection clause under the Constitution as it
discriminates against the poor because it makes them the
primary target of the government program that promotes
contraceptive use . They argue that, rather than promoting
reproductive health among the poor, the RH Law
introduces contraceptives that would effectively reduce
the number of the poor. Their bases are the various
provisions in the RH Law dealing with the poor, especially
those mentioned in the guiding principles259 and definition
of terms260 of the law.
They add that the exclusion of private educational
institutions from the mandatory reproductive health
education program imposed by the RH Law renders it
unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court
had the occasion to expound on the concept of equal
protection. Thus:

(1) Knowingly withhold information or restrict the

dissemination thereof, and/ or intentionally provide
incorrect information regarding programs and services on
reproductive health including the right to informed choice
and access to a full range of legal, medically-safe, nonabortifacient and effective family planning methods;

One of the basic principles on which this government was

founded is that of the equality of right which is embodied
in Section 1, Article III of the 1987 Constitution. The equal
protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the
requirements of justice and fair play. It has been
embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue
favoritism or hostility from the government. Arbitrariness
in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes of
an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.

From its plain meaning, the word "incorrect" here denotes

failing to agree with a copy or model or with established
rules; inaccurate, faulty; failing to agree with the
requirements of duty, morality or propriety; and failing to
coincide with the truth. 257 On the other hand, the word
"knowingly" means with awareness or deliberateness that
is intentional.258 Used together in relation to Section
23(a)(l), they connote a sense of malice and ill motive to
mislead or misrepresent the public as to the nature and
effect of programs and services on reproductive health.
Public health and safety demand that health care service
providers give their honest and correct medical

"According to a long line of decisions, equal protection

simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and
responsibilities imposed." It "requires public bodies and
inst itutions to treat similarly situated individuals in a
similar manner." "The purpose of the equal protection
clause is to secure every person within a state's
jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms
of a statue or by its improper execution through the
state's duly constituted authorities." "In other words, the
concept of equal justice under the law requires the state

SEC. 23. Prohibited Acts. - The following acts are

prohibited:
(a) Any health care service provider, whether public or
private, who shall:

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to govern impartially, and it may not draw distinctions

between individuals solely on differences that are
irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state
actions, not just those of the legislature. Its inhibitions
cover all the departments of the government including the
political and executive departments, and extend to all
actions of a state denying equal protection of the laws,
through whatever agency or whatever guise is taken.
It, however, does not require the universal application of
the laws to all persons or things without distinction. What
it simply requires is equality among equals as determined
according to a valid classification. Indeed, the equal
protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness.
The test has four requisites: (1) The classification rests on
substantial distinctions; (2) It is germane to the purpose of
the law; (3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid
classification."
For a classification to meet the requirements of
constitutionality, it must include or embrace all persons
who naturally belong to the class. "The classification will
be regarded as invalid if all the members of the class are
not similarly treated, both as to rights conferred and
obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the
sense that the members of the class should possess the
same characteristics in equal degree. Substantial similarity
will suffice; and as long as this is achieved, all those
covered by the classification are to be treated equally. The
mere fact that an individual belonging to a class differs
from the other members, as long as that class is
substantially distinguishable from all others, does not
justify the non-application of the law to him."
The classification must not be based on existing
circumstances only, or so constituted as to preclude
addition to the number included in the class. It must be of
such a nature as to embrace all those who may thereafter
be in similar circumstances and conditions. It must not
leave out or "underinclude" those that should otherwise
fall into a certain classification. [Emphases supplied;
citations excluded]
To provide that the poor are to be given priority in the
government's reproductive health care program is not a
violation of the equal protection clause. In fact, it is
pursuant to Section 11, Article XIII of the Constitution
which recognizes the distinct necessity to address the
needs of the underprivileged by providing that they be
given priority in addressing the health development of the
people. Thus:

Section 11. The State shall adopt an integrated and

comprehensive approach to health development which
shall endeavor to make essential goods, health and other
social services available to all the people at affordable
cost. There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women, and
children. The State shall endeavor to provide free medical
care to paupers.
It should be noted that Section 7 of the RH Law prioritizes
poor and marginalized couples who are suffering from
fertility issues and desire to have children. There is,
therefore, no merit to the contention that the RH Law only
seeks to target the poor to reduce their number. While the
RH Law admits the use of contraceptives, it does not, as
elucidated above, sanction abortion. As Section 3(1)
explains, the "promotion and/or stabilization of the
population growth rate is incidental to the advancement
of reproductive health."
Moreover, the RH Law does not prescribe the number of
children a couple may have and does not impose
conditions upon couples who intend to have children.
While the petitioners surmise that the assailed law seeks
to charge couples with the duty to have children only if
they would raise them in a truly humane way, a deeper
look into its provisions shows that what the law seeks to
do is to simply provide priority to the poor in the
implementation of government programs to promote
basic reproductive health care.
With respect to the exclusion of private educational
institutions from the mandatory reproductive health
education program under Section 14, suffice it to state
that the mere fact that the children of those who are less
fortunate attend public educational institutions does not
amount to substantial distinction sufficient to annul the
assailed provision. On the other hand, substantial
distinction rests between public educational institutions
and private educational institutions, particularly because
there is a need to recognize the academic freedom of
private educational institutions especially with respect to
religious instruction and to consider their sensitivity
towards the teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is
constitutionally infirm as it violates the constitutional
prohibition against involuntary servitude. They posit that
Section 17 of the assailed legislation requiring private and
non-government health care service providers to render
forty-eight (48) hours of pro bono reproductive health
services, actually amounts to involuntary servitude
because it requires medical practitioners to perform acts
against their will.262

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The OSG counters that the rendition of pro bono services

envisioned in Section 17 can hardly be considered as
forced labor analogous to slavery, as reproductive health
care service providers have the discretion as to the
manner and time of giving pro bono services. Moreover,
the OSG points out that the imposition is within the
powers of the government, the accreditation of medical
practitioners with PhilHealth being a privilege and not a
right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine
is undeniably imbued with public interest that it is both a
power and a duty of the State to control and regulate it in
order to protect and promote the public welfare. Like the
legal profession, the practice of medicine is not a right but
a privileged burdened with conditions as it directly
involves the very lives of the people. A fortiori, this power
includes the power of Congress263 to prescribe the
qualifications for the practice of professions or trades
which affect the public welfare, the public health, the
public morals, and the public safety; and to regulate or
control such professions or trades, even to the point of
revoking such right altogether.264
Moreover, as some petitioners put it, the notion of
involuntary servitude connotes the presence of force,
threats, intimidation or other similar means of coercion
and compulsion.265 A reading of the assailed provision,
however, reveals that it only encourages private and nongovernment reproductive healthcare service providers to
render pro bono service. Other than non-accreditation
with PhilHealth, no penalty is imposed should they choose
to do otherwise. Private and non-government
reproductive healthcare service providers also enjoy the
liberty to choose which kind of health service they wish to
provide, when, where and how to provide it or whether to
provide it all. Clearly, therefore, no compulsion, force or
threat is made upon them to render pro bono service
against their will. While the rendering of such service was
made a prerequisite to accreditation with PhilHealth, the
Court does not consider the same to be an unreasonable
burden, but rather, a necessary incentive imposed by
Congress in the furtherance of a perceived legitimate state
interest.
Consistent with what the Court had earlier discussed,
however, it should be emphasized that conscientious
objectors are exempt from this provision as long as their
religious beliefs and convictions do not allow them to
render reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by
Congress to the FDA of the power to determine whether

or not a supply or product is to be included in the Essential

Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The
FDA does not only have the power but also the
competency to evaluate, register and cover health services
and methods. It is the only government entity empowered
to render such services and highly proficient to do so. It
should be understood that health services and methods
fall under the gamut of terms that are associated with
what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended
by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is
hereby created an office to be called the Food and Drug
Administration (FDA) in the Department of Health (DOH).
Said Administration shall be under the Office of the
Secretary and shall have the following functions, powers
and duties:
"(a) To administer the effective implementation
of this Act and of the rules and regulations
issued pursuant to the same;
"(b) To assume primary jurisdiction in the
collection of samples of health products;
"(c) To analyze and inspect health products in
connection with the implementation of this Act;
"(d) To establish analytical data to serve as basis
for the preparation of health products standards,
and to recommend standards of identity, purity,
safety, efficacy, quality and fill of container;
"(e) To issue certificates of compliance with
technical requirements to serve as basis for the
issuance of appropriate authorization and spotcheck for compliance with regulations regarding
operation of manufacturers, importers,
exporters, distributors, wholesalers, drug
outlets, and other establishments and facilities
of health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all
applicable health products prior to the issuance
of appropriate authorizations to ensure safety,
efficacy, purity, and quality;
"(i) To require all manufacturers, traders,
distributors, importers, exporters, wholesalers,

109

retailers, consumers, and non-consumer users of

health products to report to the FDA any
incident that reasonably indicates that said
product has caused or contributed to the death,
serious illness or serious injury to a consumer, a
patient, or any person;
"(j) To issue cease and desist orders motu propio
or upon verified complaint for health products,
whether or not registered with the FDA
Provided, That for registered health products,
the cease and desist order is valid for thirty (30)
days and may be extended for sixty ( 60) days
only after due process has been observed;
"(k) After due process, to order the ban, recall,
and/or withdrawal of any health product found
to have caused death, serious illness or serious
injury to a consumer or patient, or is found to be
imminently injurious, unsafe, dangerous, or
grossly deceptive, and to require all concerned
to implement the risk management plan which is
a requirement for the issuance of the
appropriate authorization;
x x x.
As can be gleaned from the above, the functions, powers
and duties of the FDA are specific to enable the agency to
carry out the mandates of the law. Being the country's
premiere and sole agency that ensures the safety of food
and medicines available to the public, the FDA was
equipped with the necessary powers and functions to
make it effective. Pursuant to the principle of necessary
implication, the mandate by Congress to the FDA to ensure
public health and safety by permitting only food and
medicines that are safe includes "service" and "methods."
From the declared policy of the RH Law, it is clear that
Congress intended that the public be given only those
medicines that are proven medically safe, legal, nonabortifacient, and effective in accordance with scientific
and evidence-based medical research standards. The
philosophy behind the permitted delegation was explained
in Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the
government and the growing inability of the legislature to
cope directly with the many problems demanding its
attention. The growth of society has ramified its activities
and created peculiar and sophisticated problems that the
legislature cannot be expected reasonably to comprehend.
Specialization even in legislation has become necessary. To
many of the problems attendant upon present day
undertakings, the legislature may not have the
competence, let alone the interest and the time, to
provide the required direct and efficacious, not to say
specific solutions.

10- Autonomy of Local Governments and the Autonomous

Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners
claim that the RH Law infringes upon the powers devolved
to local government units (LGUs) under Section 17 of the
Local Government Code. Said Section 17 vested upon the
LGUs the duties and functions pertaining to the delivery of
basic services and facilities, as follows:
SECTION 17. Basic Services and Facilities.
(a) Local government units shall endeavor to be
self-reliant and shall continue exercising the
powers and discharging the duties and functions
currently vested upon them. They shall also
discharge the functions and responsibilities of
national agencies and offices devolved to them
pursuant to this Code. Local government units
shall likewise exercise such other powers and
discharge such other functions and
responsibilities as are necessary, appropriate, or
incidental to efficient and effective provision of
the basic services and facilities enumerated
herein.
(b) Such basic services and facilities include, but
are not limited to, x x x.
While the aforementioned provision charges the
LGUs to take on the functions and
responsibilities that have already been devolved
upon them from the national agencies on the
aspect of providing for basic services and
facilities in their respective jurisdictions,
paragraph (c) of the same provision provides a
categorical exception of cases involving
nationally-funded projects, facilities, programs
and services.268Thus:
(c) Notwithstanding the provisions of subsection
(b) hereof, public works and infrastructure
projects and other facilities, programs and
services funded by the National Government
under the annual General Appropriations Act,
other special laws, pertinent executive orders,
and those wholly or partially funded from
foreign sources, are not covered under this
Section, except in those cases where the local
government unit concerned is duly designated as
the implementing agency for such projects,
facilities, programs and services. [Emphases
supplied]

110

The essence of this express reservation of power by the

national government is that, unless an LGU is particularly
designated as the implementing agency, it has no power
over a program for which funding has been provided by
the national government under the annual general
appropriations act, even if the program involves the
delivery of basic services within the jurisdiction of the
LGU.269 A complete relinquishment of central government
powers on the matter of providing basic facilities and
services cannot be implied as the Local Government Code
itself weighs against it.270
In this case, a reading of the RH Law clearly shows that
whether it pertains to the establishment of health care
facilities,271 the hiring of skilled health professionals,272 or
the training of barangay health workers,273 it will be the
national government that will provide for the funding of its
implementation. Local autonomy is not absolute. The
national government still has the say when it comes to
national priority programs which the local government is
called upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us
are merely encouraged to provide these services. There is
nothing in the wording of the law which can be construed
as making the availability of these services mandatory for
the LGUs. For said reason, it cannot be said that the RH
Law amounts to an undue encroachment by the national
government upon the autonomy enjoyed by the local
governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy
of local governments can be equally applied to the ARMM.
The RH Law does not infringe upon its autonomy.
Moreover, Article III, Sections 6, 10 and 11 of R.A. No.
9054, or the organic act of the ARMM, alluded to by
petitioner Tillah to justify the exemption of the operation
of the RH Law in the autonomous region, refer to the
policy statements for the guidance of the regional
government. These provisions relied upon by the
petitioners simply delineate the powers that may be
exercised by the regional government, which can, in no
manner, be characterized as an abdication by the State of
its power to enact legislation that would benefit the
general welfare. After all, despite the veritable autonomy
granted the ARMM, the Constitution and the supporting
jurisprudence, as they now stand, reject the notion of
imperium et imperio in the relationship between the
national and the regional governments.274 Except for the
express and implied limitations imposed on it by the
Constitution, Congress cannot be restricted to exercise its
inherent and plenary power to legislate on all subjects
which extends to all matters of general concern or
common interest.275

11 - Natural Law
With respect to the argument that the RH Law violates
natural law,276 suffice it to say that the Court does not duly
recognize it as a legal basis for upholding or invalidating a
law. Our only guidepost is the Constitution. While every
law enacted by man emanated from what is perceived as
natural law, the Court is not obliged to see if a statute,
executive issuance or ordinance is in conformity to it. To
begin with, it is not enacted by an acceptable legitimate
body. Moreover, natural laws are mere thoughts and
notions on inherent rights espoused by theorists,
philosophers and theologists. The jurists of the
philosophical school are interested in the law as an
abstraction, rather than in the actual law of the past or
present.277 Unless, a natural right has been transformed
into a written law, it cannot serve as a basis to strike down
a law. In Republic v. Sandiganbayan,278 the very case cited
by the petitioners, it was explained that the Court is not
duty-bound to examine every law or action and whether it
conforms with both the Constitution and natural law.
Rather, natural law is to be used sparingly only in the most
peculiar of circumstances involving rights inherent to man
where no law is applicable.279
At any rate, as earlier expounded, the RH Law does not
sanction the taking away of life. It does not allow abortion
in any shape or form. It only seeks to enhance the
population control program of the government by
providing information and making non-abortifacient
contraceptives more readily available to the public,
especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as
unconstitutional insofar as it seeks to provide access to
medically-safe, non-abortifacient, effective, legal,
affordable, and quality reproductive healthcare services,
methods, devices, and supplies. As earlier pointed out,
however, the religious freedom of some sectors of society
cannot be trampled upon in pursuit of what the law hopes
to achieve. After all, the Constitutional safeguard to
religious freedom is a recognition that man stands
accountable to an authority higher than the State.
In conformity with the principle of separation of Church
and State, one religious group cannot be allowed to
impose its beliefs on the rest of the society. Philippine
modem society leaves enough room for diversity and
pluralism. As such, everyone should be tolerant and openminded so that peace and harmony may continue to reign
as we exist alongside each other.

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As healthful as the intention of the RH Law may be, the

idea does not escape the Court that what it seeks to
address is the problem of rising poverty and
unemployment in the country. Let it be said that the cause
of these perennial issues is not the large population but
the unequal distribution of wealth. Even if population
growth is controlled, poverty will remain as long as the
country's wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for
the country in the long run. The European and Asian
countries, which embarked on such a program generations
ago , are now burdened with ageing populations. The
number of their young workers is dwindling with adverse
effects on their economy. These young workers represent
a significant human capital which could have helped them
invigorate, innovate and fuel their economy. These
countries are now trying to reverse their programs, but
they are still struggling. For one, Singapore, even with
incentives, is failing.
And in this country, the economy is being propped up by
remittances from our Overseas Filipino Workers. This is
because we have an ample supply of young able-bodied
workers. What would happen if the country would be
weighed down by an ageing population and the fewer
younger generation would not be able to support them?
This would be the situation when our total fertility rate
would go down below the replacement level of two (2)
children per woman.280
Indeed, at the present, the country has a population
problem, but the State should not use coercive measures
(like the penal provisions of the RH Law against
conscientious objectors) to solve it. Nonetheless, the
policy of the Court is non-interference in the wisdom of a
law.
x x x. But this Court cannot go beyond what the legislature
has laid down. Its duty is to say what the law is as enacted
by the lawmaking body. That is not the same as saying
what the law should be or what is the correct rule in a
given set of circumstances. It is not the province of the
judiciary to look into the wisdom of the law nor to
question the policies adopted by the legislative branch.
Nor is it the business of this Tribunal to remedy every
unjust situation that may arise from the application of a
particular law. It is for the legislature to enact remedial
legislation if that would be necessary in the premises. But
as always, with apt judicial caution and cold neutrality, the
Court must carry out the delicate function of interpreting
the law, guided by the Constitution and existing legislation
and mindful of settled jurisprudence. The Court's function
is therefore limited, and accordingly, must confine itself to
the judicial task of saying what the law is, as enacted by
the lawmaking body.281

Be that as it may, it bears reiterating that the RH Law is a

mere compilation and enhancement of the prior existing
contraceptive and reproductive health laws, but with
coercive measures. Even if the Court decrees the RH Law
as entirely unconstitutional, there will still be the
Population Act (R.A. No. 6365), the Contraceptive Act (R.A.
No. 4729) and the reproductive health for women or The
Magna Carta of Women (R.A. No. 9710), sans the coercive
provisions of the assailed legislation. All the same, the
principle of "no-abortion" and "non-coercion" in the
adoption of any family planning method should be
maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED.
Accordingly, the Court declares R.A. No. 10354 as NOT
UNCONSTITUTIONAL except with respect to the following
provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in
the RH-IRR insofar as they: a) require private
health facilities and non-maternity specialty
hospitals and hospitals owned and operated by a
religious group to refer patients, not in an
emergency or life-threatening case, as defined
under Republic Act No. 8344, to another health
facility which is conveniently accessible; and b)
allow minor-parents or minors who have
suffered a miscarriage access to modem
methods of family planning without written
consent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding
provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any healthcare
service provider who fails and or refuses to
disseminate information regarding programs and
services on reproductive health regardless of his
or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding
provision in the RH-IRR insofar as they allow a
married individual, not in an emergency or lifethreatening case, as defined under Republic Act
No. 8344, to undergo reproductive health
procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding
provision in the RH-IRR insofar as they limit the
requirement of parental consent only to elective
surgical procedures.
5) Section 23(a)(3) and the corresponding
provision in the RH-IRR, particularly Section 5.24
thereof, insofar as they punish any healthcare
service provider who fails and/or refuses to refer
a patient not in an emergency or life-threatening
case, as defined under Republic Act No. 8344, to

112

another health care service provider within the

same facility or one which is conveniently
accessible regardless of his or her religious
beliefs;
6) Section 23(b) and the corresponding provision
in the RH-IRR, particularly Section 5 .24 thereof,
insofar as they punish any public officer who
refuses to support reproductive health programs
or shall do any act that hinders the full
implementation of a reproductive health
program, regardless of his or her religious
beliefs;
7) Section 17 and the corresponding prov1s10n
in the RH-IRR regarding the rendering of pro
bona reproductive health service in so far as
they affect the conscientious objector in
securing PhilHealth accreditation; and

DECISION
BERSAMIN, J.:
The issue to be determined concerns the demand of the
petitioner to have access to the North Luzon Expressway
(NLEX) by way of an easement of right of way. The demand
was rebuffed by the respondents, and upheld by both the
trial and appellate courts.
The Case
On appeal by review on certiorari is the decision
promulgated on October 27, 2004,1 whereby the Court of
Appeals (CA) affirmed the dismissal of the petitioners
complaint for specific performance by the Regional Trial
Court (RTC) in Malolos, Bulacan, Branch 7, through the
order issued on March 6, 2002.2
Antecedents

8) Section 3.0l(a) and Section 3.01 G) of the RHIRR, which added the qualifier "primarily" in
defining abortifacients and contraceptives, as
they are ultra vires and, therefore, null and void
for contravening Section 4(a) of the RH Law and
violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March
19, 2013 as extended by its Order, dated July 16, 2013 , is
hereby LIFTED, insofar as the provisions of R.A. No. 10354
which have been herein declared as constitutional.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice

FIRST DIVISION
G.R. No. 167290, November 26, 2014
HERMANO OIL MANUFACTURING & SUGAR
CORPORATION, Petitioner, v. TOLL REGULATORY BOARD,
ENGR. JAIME S. DUMLAO, JR., PHILIPPINE NATIONAL
CONSTRUCTION CORPORATION (PNCC) AND
DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS
(DPWH),Respondents.

The petitioner owned a parcel of land located at the right

side of the Sta. Rita Exit of the NLEX situated at Barangay
Sta. Rita, Guiguinto, Bulacan and covered by Transfer
Certificate of Title (TCT) No. T-134222 in its name issued
by the Registry of Deeds of Bulacan.3 The parcel of land
was bounded by an access fence along the NLEX. In its
letter dated September 7, 2001,4 the petitioner requested
that respondent Toll Regulatory Board (TRB) grant an
easement of right of way, contending that it had been
totally deprived of the enjoyment and possession of its
property by the access fence that had barred its entry into
and exit from the NLEX. On September 26, 2001, however,
the TRB denied the petitioners request, explaining
thusly:chanroblesvirtuallawlibrary
It is with regret that we cannot favorably consider your
clients request at this point in time. Said request is
inconsistent with the provision of Section 7.0 of Republic
Act No. 2000, also known as the Limited Access Highway
Act. Moreover, allowing easement of right-of-way may
have detrimental/adverse effect on the scheduled
rehabilitation and improvement of the North Luzon
Expressway Interchanges, as well as on the operational
problems, i.e. traffic conflicts that may arise, if approved.5
Thereafter, the petitioner sued the TRB and Engr. Jaime S.
Dumlao, the TRBs Executive Director, in the
RTC,6 demanding specific performance, the grant of the
easement of right of way and damages (Civil Case No. 37M-2002). The petitioner amended its complaint to implead
the Philippine National Construction Corporation (PNCC)
and the Department of Public Works and Highways
(DPWH) as indispensable parties.7
The petitioner alleged in its amended complaint that the
access fence had totally deprived it of the use and
enjoyment of its property by preventing ingress and egress
to its property; that the only access leading to its property

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was the road network situated in front of its property; that

it was thereby deprived of its property without due
process of law and just compensation; and that it was also
denied equal protection of the law because adjacent
property owners had been given ingress and egress access
to their properties. It prayed that the
RTC:chanroblesvirtuallawlibrary
1. Immediately issue a writ of preliminary
injunction/temporary restraining order enjoining the
defendants, its agents and/or representatives from
depriving plaintiff to ingress and egress of its property;
2. After due hearing:chanroblesvirtuallawlibrary
a) Render the foregoing writ of preliminary injunction
perpetual;
b) Granting plaintiff a right of way;
c) Declare the condemnation of plaintiffs property as null
and void. Alternatively, plaintiff prays that defendants be
ordered to pay plaintiff a just and fair compensation of the
latters property in the amount of not less than Four
Thousand Pesos (Ps. 4,000.00) per square meter;
d) To pay plaintiff the amount of THREE HUNDRED
THOUSAND PESOS (Ps. 300,000.00) and Ps. 5,000.00 per
court appearance by way of Attorneys fees;
e) To pay plaintiff Moral and Exemplary Damages in the
amount of Ps. 200,000.00; and
f) To pay plaintiff the costs of suit.
Plaintiff further prays for such other reliefs and remedies
as may be deemed just and equitable under the premises.8
Appearing for the TRB, the Office of the Solicitor General
(OSG) filed a Motion to Dismiss with Opposition to the
Application for the Issuance of Temporary Restraining
Order and/or Writ of Preliminary Injunction based on the
following grounds:9
I.
THE HONORABLE COURT HAS NO JURISDICTION OVER THE
CASE
II.
THE PETITION STATES NO CAUSE OF ACTION CONSIDERING
THAT:
A.

PLAINTIFF IS NOT THE REAL PARTY IN

INTEREST

B.

EASEMENT WILL NOT LIE BECAUSE THE

LIMITED ACCESS TO THE NORTH
LUZON EXPRESSWAY IS ALLOWED
UNDER REPUBLIC ACT 2000

C.

THE STATE CANNOT BE SUED

WITHOUT ITS CONSENT
III.

THE REQUISITES FOR THE ISSUANCE OF TEMPORARY

RESTRAINING ORDER AND/OR WRIT OF INJUNCTION ARE
NOT PRESENT
IV.
THE COMPLAINT HAS NO LEGAL BASIS, THE PROPER
REMEDY AVAILABLE IN THIS CASE IS NOT COMPLAINT BUT
A PETITION FOR CERTIORARI UNDER RULE 65 OF THE
RULES OF COURT.
In its order dated March 6, 2002,10 the RTC granted the
motion to dismiss, observing as
follows:chanroblesvirtuallawlibrary
The present action against the defendants Toll Regulatory
Board and its Executive Director, Engr. Jaime S. Dumlao,
Jr., could be considered as a suit against the state without
its consent as among the reliefs prayed for in the
complaint is to require the said defendants to pay, jointly
and severally, a just and reasonable compensation of the
plaintiffs property which, if awarded in the judgment
against said defendants, would ultimately involve an
appropriation by the state of the amount needed to pay
the compensation and damages so awarded. Moreover, as
pointed out by the defendants-movants, defendant Jaime
S. Dumlao, Jr. is sued in his official capacity so that the
instant complaint against him is tantamount to a claim
against the state which cannot be sued without its
consent.
This principle applies with equal force as regards new
defendant Department of Public Works and Highways
(DPWH).
Defendant Philippine National Construction Corporation
(PNCC), on the other hand, was impleaded as additional
defendant being the entity that operates the North Luzon
Expressway and was primarily responsible in depriving the
plaintiff of the use and enjoyment of its property by
reason of the construction of the access or right of way
fence that prevents ingress to and egress from the subject
property, considering further that the other defendants
had refused to grant plaintiffs request for an easement of
right of way.
The main objective and prayer of the plaintiff is for this
court to issue a writ of injunction that will restrain the
defendants from depriving it of ingress and egress to its
property in question or to grant to it a right of way to its
property.
Suffice it to say that the main relief sought by the plaintiff
is beyond the jurisdiction of this court to grant as provided
for under Presidential Decree No. 1818 and Republic Act

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No. 8975 which essentially prohibit the courts from issuing

temporary restraining orders and/or writs of injunction
against government infrastructure projects, and which
expressly declares any such TRO or writ of injunction void
under Section 3 of R.A. No. 8975.
In view of all the foregoing, the motion to dismiss is
hereby GRANTED.
WHEREFORE, the instant complaint is hereby DISMISSED.
SO ORDERED.11
The petitioner sought reconsideration, but the RTC denied
its motion on July 25, 2002.12
The petitioner appealed.13
Judgment of the CA
On October 27, 2004, the CA promulgated its assailed
judgment, affirming the RTCs dismissal of the complaint,
to wit:chanroblesvirtuallawlibrary
The law is clear. Plaintiff-appellant does not deny that the
NLEX is a limited access facility. Neither did it put forward
any reason why it should not be covered by the said law.
Plaintiff-appellant, therefore, cannot expect any court to
issue a decision in its favor in violation of an existing law.
The Court further notes that plaintiff-appellant skirted this
issue in its pleadings perhaps because it recognizes the
fact that its prayers in the complaint before the trial court
is in violation of the said law.
Moreover, as pointed out by defendants-appellees (Rollo,
p. 19 and 127-128), when plaintiff-appellant acquired the
property on December 14, 1999 (See: Records, p. 33), the
NLEX was already in existence and as a matter of fact Entry
No. 189568 in the title indicated that a portion of the
property was already sold to the Republic of the
Philippines (See: Dorsal portion, Records, p. 33). It is basic
that a person cannot demand an easement of right of way
if the isolation of the property was due to owners own act
(Art. 649, NCC; Villanueva v Velasco, 346 SCRA 99 [2000]).
In the present case, when the plaintiff-appellant bought
the property in 1999, the NLEX was already in existence
and so was the access fence. In short, its predecessors-ininterest allowed the property to be isolated. Plaintiffappellant is now bound by the acts of its predecessors-ininterest.
Moreover, as admitted by plaintiff-appellant in its
amended complaint, there is a road network in front of
the property which serves as its access (Records, p. 28). It
is settled that to be able to demand a compulsory right of
way, the dominant estate must not have adequate access
to a public highway (Villanueva v Velasco, supra). Plaintiffappellant did not complaint about the adequacy of the
existing road works.

Also, as pointed out by defendants-appellees, the action

below was one for specific performance which is proper
only in case of contractual breach. In the present case,
plaintiff-appellant cannot claim that defendants-appellees
committed a breach of contract because there is precisely
no contract between them.
As to the matter of non-suability, the Court notes that
while defendant-appellee PNCC is a government owned
and controlled corporation, the other defendantsappellees are either agencies of the State (DPWH and TRB)
or an employee of a government agency. Plaintiffappellant argued that the principle of non-suability of the
state does not apply when the government acted in a nongovernmental capacity. The Court, however, notes that
plaintiff-appellant merely cites cases to this effect but did
not put forward any argument why the maintenance of
NLEX should be considered as a non-governmental
function. It cannot be denied that the maintenance of the
highways is part of the necessary functions of the
government of maintaining public infrastructures.
Coming now to PNCC although it is not strictly a
government agency, its function is a necessary incident to
a government function and, hence, it should likewise enjoy
immunity from suit (See: Union Insurance Society of
Canton, Ltd. v Republic of the Philippines, 46 SCRA 120
[1972]).
As to the assertion that no expropriation proceeding was
taken against the subject property, the Court agrees with
the PNCC that these arguments were not raised in the
Court below and, hence, is no longer proper at this stage.
Moreover, the Court notes that the proper party to
complain against the alleged lack of proper expropriation
proceeding is the previous owner, when portion of the
property was sold to the Republic of the Philippines in
1979.
WHEREFORE, the appealed Order dated March 6, 2002 of
the Regional Trial Court of Malolos, Bulacan, Branch 7, in
Civil Case No. 37-M-2002 is hereby AFFIRMED.
SO ORDERED.14
Issues
The present appeal is anchored on the following grounds,
namely:chanroblesvirtuallawlibrary
FIRST
THE DECISION OF THE COURT OF APPEALS IS REPUGNANT
TO THE DUE PROCESS AND EQUAL PROTECTION CLAUSE
ENSHRINED IN OUR CONSTITUTION AND PREVAILING
JURISPRUDENCE.
SECOND
THE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF

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DISCRETION IN DECLARING THAT ENTRY NO. 189568 IN

THE TITLE OF HEREIN PETITIONER WAS ALREADY IN
EXISTENCE WHICH SHOWED THAT EVEN BEFORE THE
ACQUISITION OF THE PROPERTY IN 1999, THE NLEX WAS
ALREADY IN EXISTENCE AND SO WAS THE ACCESS FENCE.
THUS, ITS PREDECESSORS-IN-INTEREST ALLOWED THE
PROPERTY TO BE ISOLATED.
THIRD
THE COURT OF APPEALS SERIOUSLY ERRED IN DECLARING
THAT RESPONDENT PNCC, ALTHOUGH NOT STRICTLY A
GOVERNMENT AGENCY, SHOULD LIKEWISE ENJOY
IMMUNITY FROM SUIT.15
The foregoing grounds boil down to the issue of whether
Civil Case No. 37-M-2002 was properly dismissed.
Ruling
We concur with both lower courts.
In our view, the TRB, Dumlao and the DPWH correctly
invoked the doctrine of sovereign immunity in their favor.
The TRB and the DPWH performed purely or essentially
government or public functions. As such, they were
invested with the inherent power of sovereignty. Being
unincorporated agencies or entities of the National
Government, they could not be sued as such. On his part,
Dumlao was acting as the agent of the TRB in respect of
the matter concerned.
In Air Transportation Office v. Ramos,16 we expounded on
the doctrine of sovereign immunity in the following
manner:chanroblesvirtuallawlibrary
An unincorporated government agency without any
separate juridical personality of its own enjoys immunity
from suit because it is invested with an inherent power of
sovereignty. Accordingly, a claim for damages against the
agency cannot prosper; otherwise, the doctrine of
sovereign immunity is violated. However, the need to
distinguish between an unincorporated government
agency performing governmental function and one
performing proprietary functions has arisen. The immunity
has been upheld in favor of the former because its
function is governmental or incidental to such function; it
has not been upheld in favor of the latter whose function
was not in pursuit of a necessary function of government
but was essentially a business.
Nonetheless, the petitioner properly argued that the
PNCC, being a private business entity, was not immune
from suit. The PNCC was incorporated in 1966 under its
original name of Construction Development Corporation of
the Philippines (CDCP) for a term of fifty years pursuant to
the Corporation Code.17 In 1983, the CDCP changed its
corporate name to the PNCC to reflect the extent of the
Governments equity investment in the company, a
situation that came about after the government financial

institutions converted their loans into equity following the

CDCPs inability to pay the loans.18 Hence, the Government
owned 90.3% of the equity of the PNCC, and only 9.70% of
the PNCCs voting equity remained under private
ownership.19 Although the majority or controlling shares of
the PNCC belonged to the Government, the PNCC was
essentially a private corporation due to its having been
created in accordance with the Corporation Code, the
general corporation statute.20 More specifically, the PNCC
was an acquired asset corporation under Administrative
Order No. 59, and was subject to the regulation and
jurisdiction of the Securities and Exchange
Commission.21 Consequently, the doctrine of sovereign
immunity had no application to the PNCC.
The foregoing conclusion as to the PNCC notwithstanding,
the Court affirms the dismissal of the complaint due to
lack of jurisdiction and due to lack of cause of action.
It appears that the petitioners complaint principally
sought to restrain the respondents from implementing an
access fence on its property, and to direct them to grant it
a right of way to the NLEX. Clearly, the reliefs being sought
by the petitioner were beyond the jurisdiction of the RTC
because no court except the Supreme Court could issue an
injunction against an infrastructure project of the
Government. This is because Presidential Decree No. 1818,
issued on January 16, 1981, prohibited judges from issuing
restraining orders against government infrastructure
projects, stating in its sole provision: No court in the
Philippines shall have jurisdiction to issue any restraining
order, preliminary injunction or preliminary order,
preliminary mandatory injunction in any case, dispute or
controversy involving an infrastructure project.
Presidential Decree No. 1818 was amended by Republic
Act No. 8975,22 approved on November 7, 2000, whose
pertinent parts provide:chanroblesvirtuallawlibrary
Section 3. Prohibition on the Issuance of Temporary
Restraining Orders, Preliminary Injunctions and Preliminary
Mandatory Injunctions.- No court, except the Supreme
Court, shall issue any temporary restraining order,
preliminary injunction or preliminary mandatory injunction
against the government, or any of its subdivisions, officials
or any person or entity, whether public or private, acting
under the government's direction, to restrain, prohibit or
compel the following acts:
(a) Acquisition, clearance and development of the right-ofway and/or site or location of any national government
project;
(b) Bidding or awarding of contract/project of the national
government as defined under Section 2 hereof;
(c) Commencement, prosecution, execution,
implementation, operation of any such contract or project;
(d) Termination or rescission of any such contract/project;

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and
(e) The undertaking or authorization of any other lawful
activity necessary for such contract/project.
This prohibition shall apply in all cases, disputes or
controversies instituted by a private party, including but
not limited to cases filed by bidders or those claiming to
have rights through such bidders involving such
contract/project. This prohibition shall not apply when the
matter is of extreme urgency involving a constitutional
issue, such that unless a temporary restraining order is
issued, grave injustice and irreparable injury will arise. The
applicant shall file a bond, in an amount to be fixed by the
court, which bond shall accrue in favor of the government
if the court should finally decide that the applicant was not
entitled to the relief sought.
If after due hearing the court finds that the award of the
contract is null and void, the court may, if appropriate
under the circumstances, award the contract to the
qualified and winning bidder or order a rebidding of the
same, without prejudice to any liability that the guilty
party may incur under existing laws.
Section 4. Nullity of Writs and Orders.- Any temporary
restraining order, preliminary injunction or preliminary
mandatory injunction issued in violation of Section 3
hereof is void and of no force and effect.
Section 5. Designation of Regional Trial Courts.- The
Supreme Court may designate regional trial courts to act
as commissioners with the sole function of receiving facts
of the case involving acquisition, clearance and
development of right-of-way for government
infrastructure projects. The designated regional trial court
shall within thirty (30) days from the date of receipt of the
referral, forward its findings of facts to the Supreme Court
for appropriate action. x x x
As to what was embraced by the term infrastructure
project as used in Presidential Decree No. 1818, the Court
has ruled in Francisco, Jr. v. UEM-MARA Philippines
Corporation:23
PD 1818 proscribes the issuance of a writ of preliminary
injunction in any case involving an infrastructure project of
the government. The aim of the prohibition, as expressed
in its second whereas clause, is to prevent delay in the
implementation or execution of government infrastructure
projects (particularly through the use of provisional
remedies) to the detriment of the greater good since it
disrupts the pursuit of essential government projects and
frustrates the economic development effort of the nation.
Petitioner argues that the collection of toll fees is not an
infrastructure project of the government. He cites the
definition of infrastructure projects we used in Republic
v. Silerio:chanroblesvirtuallawlibrary

The term infrastructure projects means construction,

improvement and rehabilitation of roads, and bridges,
railways, airports, seaports, communication facilities,
irrigation, flood control and drainage, water supply and
sewage systems, shore protection, power facilities,
national buildings, school buildings, hospital buildings, and
other related construction projects that form part of the
government capital investment.
xxxx
The definition of infrastructure projects specifically
includes the improvement and rehabilitation of roads
and not just its construction. Accordingly, even if the
Coastal Road was merely upgraded and not constructed
from scratch, it is still covered by the definition. Moreover,
PD 1818 itself states that any person, entity or
governmental official cannot be prohibited from
continuing the execution or implementation of such
project or pursuing any lawful activity necessary for such
execution or implementation. Undeniably, the collection
of toll fees is part of the execution or implementation of
the MCTEP as agreed upon in the TOA. The TOA is valid
since it has not been nullified. Thus it is a legitimate source
of rights and obligations. It has the force and effect of law
between the contracting parties and is entitled to
recognition by this Court. The MCTEP is an infrastructure
project of the government forming part of the government
capital investment considering that under the TOA, the
government owns the expressways comprising the project.
(Emphasis supplied.)
There can be no question that the respondents
maintenance of safety measures, including the
establishment of the access fence along the NLEX, was a
component of the continuous improvement and
development of the NLEX. Consequently, the lower courts
could not validly restrain the implementation of the access
fence by granting the petitioner its right of way without
exceeding its jurisdiction.
Nor did the establishment of the access fence violate the
petitioners constitutional and legal rights.
It is relevant to mention that the access fence was put up
pursuant to Republic Act No. 2000 (Limited Access
Highway Act), the enforcement of which was under the
authority of the DOTC. Clarifying the DOTCs jurisdiction
under this law in Mirasol v. Department of Public Works
and Highways,24 the Court has said
RA 2000, otherwise known as the Limited Access Highway
Act, was approved on 22 June 1957. Section 4 of RA 2000
provides that [t]he Department of Public Works and
Communications is authorized to do so design any limited
access facility and to so regulate, restrict, or prohibit
access as to best serve the traffic for which such facility is
intended. The RTC construed this authorization to
regulate, restrict, or prohibit access to limited access
facilities to apply to the Department of Public Works and
Highways (DPWH).

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The RTCs ruling is based on a wrong premise. The RTC

assumed that the DPWH derived its authority from its
predecessor, the Department of Public Works and
Communications, which is expressly authorized to
regulate, restrict, or prohibit access to limited access
facilities under Section 4 of RA 2000. However, such
assumption fails to consider the evolution of the
Department of Public Works and Communications.
xxxx
Upon the ratification of the 1987 Constitution in February
1987, the former Ministry of Public Works and Highways
became the Department of Public Works and Highways
(DPWH) and the former Ministry of Transportation and
Communications became theDepartment of
Transportation and Communications (DOTC).
DPWH issued DO 74 and DO 215 declaring certain
expressways as limited access facilities on 5 April 1993 and
25 June 1998, respectively. Later, the TRB, under the
DPWH, issued the Revised Rules and Regulations on
Limited Access Facilities. However, on 23 July 1979, long
before these department orders and regulations were
issued, theMinistry of Public Works, Transportation and
Communications was divided into two agencies
the Ministry of Public Works and the Ministry of
Transportation and Communications by virtue of EO 546.
The question is, which of these two agencies is now
authorized to regulate, restrict, or prohibit access to
limited access facilities?
Under Section 1 of EO 546, the Ministry of Public Works
(now DPWH) assumed the public works functions of the
Ministry of Public Works, Transportation and
Communications. On the other hand, among the
functions of the Ministry of Transportation and
Communications (now Department of Transportation and
Communications [DOTC]) were to (1) formulate and
recommend national policies and guidelines for the
preparation and implementation of an integrated and
comprehensive transportation and communications
systems at the national, regional, and local levels; and (2)
regulate, whenever necessary, activities relative to
transportation and communications and prescribe and
collect fees in the exercise of such power. Clearly, under
EO 546, it is the DOTC, not the DPWH, which has
authority to regulate, restrict, or prohibit access to
limited access facilities.
Even under Executive Order No. 125 (EO 125) and
Executive Order No. 125-A (EO 125-A), which further
reorganized the DOTC, the authority to administer and
enforce all laws, rules and regulations relative to
transportation is clearly with the DOTC.

no authority to declare certain expressways as limited

access facilities. Under the law, it is the DOTC which is
authorized to administer and enforce all laws, rules and
regulations in the field of transportation and to regulate
related activities. (Emphasis supplied.)
Moreover, the putting up of the access fence on the
petitioners property was in the valid exercise of police
power, assailable only upon proof that such putting up
unduly violated constitutional limitations like due process
and equal protection of the law.25 In Mirasol v.
Department of Public Works and Highways, the Court has
further noted that:chanroblesvirtuallawlibrary
A toll way is not an ordinary road. As a facility designed to
promote the fastest access to certain destinations, its use,
operation, and maintenance require close regulation.
Public interest and safety require the imposition of certain
restrictions on toll ways that do not apply to ordinary
roads. As a special kind of road, it is but reasonable that
not all forms of transport could use it.26
Clearly, therefore, the access fence was a reasonable
restriction on the petitioners property given the location
thereof at the right side of Sta. Rita Exit of the NLEX.
Although some adjacent properties were accorded
unrestricted access to the expressway, there was a valid
and reasonable classification for doing so because their
owners provided ancillary services to motorists using the
NLEX, like gasoline service stations and food stores.27 A
classification based on practical convenience and common
knowledge is not unconstitutional simply because it may
lack purely theoretical or scientific uniformity.28
Lastly, the limited access imposed on the petitioners
property did not partake of a compensable taking due to
the exercise of the power of eminent domain. There is no
question that the property was not taken and devoted for
public use. Instead, the property was subjected to a
certain restraint, i.e. the access fence, in order to secure
the general safety and welfare of the motorists using the
NLEX. There being a clear and valid exercise of police
power, the petitioner was certainly not entitled to any just
compensation.29
WHEREFORE, the Court DENIES the petition for review
on certiorari; AFFIRMS the decision promulgated on
October 27, 2004; and ORDERS the petitioner to pay the
costs of suit.
SO ORDERED.
Sereno, (Chief Justice), Leonardo-De Castro, Villarama,
Jr.,* and Perez, JJ., concur.

Thus, DO 74 and DO 215 are void because the DPWH has

118