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G.R. No. 165448 - Ernesto Aquino v. People of the Philippines

FIRST DIVISION

[G.R. NO. 165448 : July 27, 2009]

ERNESTO AQUINO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CARPIO, J.:

The Case

Before the Court is a Petition for Review 1 assailing the 5 June 1997 Decision2 and 24 September
2004 Resolution3 of the Court of Appeals in CA-G.R. CR No. 17534.

The Antecedent Facts

On behalf of Teachers' Camp, Sergio Guzman filed with the Department of Environment and Natural
Resources (DENR) an application to cut down 14 dead Benguet pine trees within the Teachers' Camp
in Baguio City. The trees, which had a total volume of 13.37 cubic meters, were to be used for the
repairs of Teachers' Camp.

On 19 May 1993, before the issuance of the permit, a team composed of members from the
Community Environment and Natural Resources Office (CENRO) and Michael Cuteng (Cuteng), a
forest ranger of the Forest Section of the Office of the City Architect and Parks Superintendent of
Baguio City, conducted an inspection of the trees to be cut.

Thereafter, Sabado T. Batcagan, Executive Director of the DENR, issued a permit allowing the
cutting of 14 trees under the following terms and conditions:

2. That the cut timber shall be utilized as lumber and fuel-wood by the permittee;

3. As replacement, the permittee shall plant one hundred forty (140) pine seedlings in an
appropriate place within the area. In the absence of plantable area in the property, the same is
required to plant within forest area duly designated by CENRO concerned which shall be properly
maintained and protected to ensure/enhance growth and development of the planted seedlings;

4. Violation of any of the conditions set hereof is punishable under Section 68 of PD 705 as
amended by E.O. No. 277, Series of 1987; and cralawlibrary

5. That non-compliance with any of the above conditions or violations of forestry laws and
regulations shall render this permit null and void without prejudice to the imposition of penalties in
accordance with existing laws and regulations.

This PERMIT is non-transferable and shall expire ten (10) days from issuance hereof or as soon as
the herein authorized volume is exhausted whichever comes first. 4

On 23 July 1993, Forest Rangers Ramil Windo, Moises Sobrepea, Daniel Salamo, Pablo
Guinawan, Antonio Abellera, and Forester Paul Apilis received information that pine trees were being
cut at Teachers' Camp without proper authority. They proceeded to the site where they found
Ernesto Aquino (petitioner), a forest ranger from CENRO, and Cuteng supervising the cutting of the
trees. They also found sawyers Benedicto Santiago (Santiago) and Mike Masing (Masing) on the
site, together with Clemente Salinas (Salinas) and Andrew Nacatab (Nacatab), who were also
supervising the cutting of the trees. The forest rangers found 23 tree stumps, out of which only 12
were covered by the permit. The volume of the trees cut with permit was 13.58 cubic meters while
the volume of the trees cut without permit was 16.55 cubic meters. The market value of the trees
cut without permit was P182,447.20, and the forest charges were P11,833.25.

An Information for violation of Section 68 of Presidential Decree No. 705 5 (PD 705) was filed against
petitioner, Cuteng, Nacatab, Masing, and Santiago, as follows:

That on or about the 23rd day of July, 1993, and subsequent thereto, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually aiding one another, and without any authority, license or
permit, did then and there willfully, unlawfully and feloniously cut nine (9) pine trees with a total
volume and market price as P182,447.20 (Volume 16.55 M3 424 bd. ft./M3 and unit price - P26.00
bd. ft.) and with a total forest charge of P11,833.25 or having a total sum of P194,280.45 at
Teachers Camp, Baguio City, without the legal documents as required under existing forest laws and
regulations, particularly the Department of Environment and Natural Resources Circular No. 05,
Series of 1989, in violation of the aforecited law.6
rbl r l l lbrr

Masing alleged that he was not aware of the limitations on the permit as he was not given a copy of
the permit. Masing stated that he cut 10 pine trees under the supervision of petitioner who claimed
to be in possession of the necessary permit. He stated that three of the trees were stumps about
four or five feet high and were not fit for lumber. He stated that while he was cutting trees,
petitioner and Salinas were present.

Santiago testified that he cut trees under petitioner's supervision. He stated that petitioner was in
possession of the permit. He stated that he cut 10 trees, six of which were cut into lumber while two
were stumps and two were rotten.

Salinas testified that Masing and Santiago were merely hired as sawyers and they merely followed
petitioner's instructions.

Cuteng testified that he was part of the team that inspected the trees to be cut before the permit
was issued. He stated that the trees cut by Santiago were covered by the permit.

Nacatab testified that he only went to Teachers' Camp on 13 July 1993 and he saw Santiago and
Masing cutting down the trees in petitioner's presence.

Petitioner alleged that he was sent to supervise the cutting of trees at Teachers' Camp. He allegedly
informed his superior, Paul Apilis, that he was not aware of the trees covered by the permit.
However, he still supervised the cutting of trees without procuring a copy of the vicinity map used in
the inspection of the trees to be cut. He claimed that he could not prevent the overcutting of trees
because he was just alone while Cuteng and Santiago were accompanied by three other men.

The Decision of the Trial Court


In its 26 May 1994 Decision,7 the Regional Trial Court of Baguio City, Branch 5 (trial court), ruled as
follows:

WHEREFORE, the Court finds and declares the accused ERNESTO AQUINO y ESTIPULAR, MICHAEL
CUTENG y LESCAO and BENEDICTO SANTIAGO y DOCLES guilty beyond reasonable doubt of the
crime charged and hereby sentences EACH of them to suffer an indeterminate penalty of SIX (6)
YEARS of prision correccional, as minimum, to TWENTY (20) YEARS of reclusion temporal, as
maximum; to indemnify, jointly and severally, the Government in the amounts of P182,477.20
and P11,833.25, representing the market value of and forest charges on the Benguet pine trees cut
without permit; and to pay their proportionate shares in the costs.

The chainsaw confiscated from the accused Santiago is hereby declared forfeited in favor of the
Government.

On the other hand, the accused ANDREW NACATAB y DODOY and MIKE MASING y GANAS are
acquitted on reasonable doubt, with costs de oficio, and the cash bonds they deposited for their
provisional liberty in the amount of P7,500.00 each under O.R. Nos. 139605 and 139646, dated
February 4, 1996 and February 23, 1994, respectively, are ordered released to them upon proper
receipt therefor.

SO ORDERED.8

The trial court ruled that the trees cut exceeded the allowed number of the trees authorized to be
cut. The trial court further ruled that the cutting of trees went beyond the period stated in the
permit.

Petitioner, Cuteng and Santiago appealed from the trial court's Decision.

The Decision of the Court of Appeals

In its 5 June 1997 Decision, the Court of Appeals modified the trial court's Decision as follows:

WHEREFORE, the decision of the court a quo is MODIFIED. The accused-appellants Benedicto
Santiago and Michael Cuteng are hereby acquitted on reasonable doubt. The appellant Ernesto
Aquino is found guilty, and is hereby sentenced to suffer the indeterminate penalty of six (6) years
and one (1) day of prision mayor as minimum, to fourteen (14) years, eight (8) months, and one
(1) day of reclusion temporal, as maximum. The award of damages is deleted. No costs.

SO ORDERED.9

The Court of Appeals ruled that as a forest guard or ranger of the CENRO, DENR, petitioner had the
duty to supervise the cutting of trees and to ensure that the sawyers complied with the terms of the
permit which only he possessed. The Court of Appeals ruled that while it was Teachers' Camp which
hired the sawyers, petitioner had control over their acts. The Court of Appeals rejected petitioner's
claim that he was restrained from taking a bolder action by his fear of Santiago because petitioner
could have informed his superiors but he did not do so. The Court of Appeals further rejected
petitioner's contention that the law contemplated cutting of trees without permit, while in this case
there was a permit for cutting down the trees. The Court of Appeals ruled that the trees which were
cut by the sawyers were not covered by the permit.

The Court of Appeals ruled that conspiracy was not sufficiently proven. As such, the Court of
Appeals found that the prosecution failed to prove Cuteng's guilt beyond reasonable doubt. The
Court of Appeals likewise acquitted Santiago because he was only following orders as to which trees
to cut and he did not have a copy of the permit.

Petitioner filed a motion for reconsideration. In its 24 September 2004 Resolution, the Court of
Appeals denied the motion for lack of merit.

Hence, the petition before this Court.

The Issue

The only issue in this case is whether petitioner is guilty beyond reasonable doubt of violation of
Section 68 of PD 705.

The Ruling of this Court

The petition has merit.

The Solicitor General alleges that the petition should be denied because petitioner only raises
questions of facts and not questions of law. We do not agree.

A question of law arises when there is doubt as to what the law is on a certain state of facts, while
there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. 10 For
questions to be one of law, the same must not involve an examination of the probative value of the
evidence presented by the litigants.11 The resolution of the issue must rest solely on what the law
provides on the given set of circumstances.12

In this case, petitioner challenges his conviction under Section 68 of PD 705.

Section 68 of PD 705 provides:

Section 68. Cutting, Gathering and/or Collecting Timber or Other Forest Products Without License.-
Any person who shall cut, gather, collect, remove timber or other forest products from any forest
land, or timber from alienable or disposable public land, or from private land, without any authority,
or possess timber or other forest products without the legal documents as required under existing
forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and
310 of the Revised Penal Code: Provided, that in the case of partnerships, associations, or
corporations, the officers who ordered the cutting, gathering, collection or possession shall be liable,
and if such officers are aliens, they shall, in addition to the penalty, be deported without further
proceedings on the part of the Commission on Immigration and Deportation.

There are two distinct and separate offenses punished under Section 68 of PD 705, to wit:

(1
) Cutting, gathering, collecting and removing timber or other forest
products from any forest land, or timber from alienable or disposable
public land, or from private land without any authority; and

(2
) Possession of timber or other forest products without the legal
documents required under existing forest laws and regulations. 13

The provision clearly punishes anyone who shall cut, gather, collect or remove timber or other
forest products from any forest land, or timber from alienable or disposable public land, or from
private land, without any authority. In this case, petitioner was charged by CENRO to supervise the
implementation of the permit. He was not the one who cut, gathered, collected or removed the pine
trees within the contemplation of Section 68 of PD 705. He was not in possession of the cut trees
because the lumber was used by Teachers' Camp for repairs. Petitioner could not likewise be
convicted of conspiracy to commit the offense because all his co-accused were acquitted of the
charges against them.

Petitioner may have been remiss in his duties when he failed to restrain the sawyers from cutting
trees more than what was covered by the permit. As the Court of Appeals ruled, petitioner could
have informed his superiors if he was really intimidated by Santiago. If at all, this could only make
petitioner administratively liable for his acts. It is not enough to convict him under Section 68 of PD
705.

Neither could petitioner be liable under the last paragraph of Section 68 of PD 705 as he is not an
officer of a partnership, association, or corporation who ordered the cutting, gathering, or collection,
or is in possession of the pine trees.

WHEREFORE, we GRANT the petition. We SET ASIDE the 5 June 1997 Decision and 24
September 2004 Resolution of the Court of Appeals in CA-G.R. CR No. 17534. Petitioner Ernesto
Aquino is ACQUITTED of the charge of violation of Section 68 of Presidential Decree No. 705.
Costs de officio.

SO ORDERED.

G.R. No. 211356, September 29, 2014 - CRISOSTOMO B. AQUINO, Petitioner, v. MUNICIPALITY OF MALAY,
AKLAN, REPRESENTED BY HON. MAYOR JOHN P. YAP, SANGGUNIANG BAYAN OF MALAY, AKLAN,
REPRESENTED BY HON. EZEL FLORES, DANTE PASUGUIRON, ROWEN AGUIRRE, WILBEC GELITO, JUPITER
GALLENERO, OFFICE OF THE MUNICIPAL ENGINEER, OFFICE OF THE MUNICIPAL TREASURER, BORACAY PNP
CHIEF, BORACAY FOUNDATION, INC., REPRESENTED BY NENETTE GRAF, MUNICIPAL AUXILIARY POLICE,
AND JOHN AND JANE DOES, Respondents.

THIRD DIVISION

G.R. No. 211356, September 29, 2014

CRISOSTOMO B. AQUINO, Petitioner, v. MUNICIPALITY OF MALAY, AKLAN, REPRESENTED BY HON.


MAYOR JOHN P. YAP, SANGGUNIANG BAYAN OF MALAY, AKLAN, REPRESENTED BY HON. EZEL
FLORES, DANTE PASUGUIRON, ROWEN AGUIRRE, WILBEC GELITO, JUPITER GALLENERO, OFFICE
OF THE MUNICIPAL ENGINEER, OFFICE OF THE MUNICIPAL TREASURER, BORACAY PNP CHIEF,
BORACAY FOUNDATION, INC., REPRESENTED BY NENETTE GRAF, MUNICIPAL AUXILIARY POLICE,
AND JOHN AND JANE DOES, Respondents.

DECISION

VELASCO JR., J.:

Nature of the Case


Before the Court is a Petition for Review on Certiorari challenging the Decision 1 and the Resolution of the
Court of Appeals (CA) in CA-G.R. SP No. 120042 dated August 13, 2013 and February 3, 2014, respectively.
The assailed rulings denied Crisostomo Aquinos Petition for Certiorari for not being the proper remedy to
question the issuance and implementation of Executive Order No. 10, Series of 2011 (EO 10), ordering the
demolition of his hotel establishment.

The Facts

Petitioner is the president and chief executive officer of Boracay Island West Cove Management Philippines,
Inc. (Boracay West Cove). On January 7, 2010, the company applied for a zoning compliance with the
municipal government of Malay, Aklan.2 While the company was already operating a resort in the area, the
application sought the issuance of a building permit covering the construction of a three-storey hotel over a
parcel of land measuring 998 sqm. located in Sitio Diniwid, Barangay Balagab, Boracay Island, Malay, Aklan,
which is covered by a Forest Land Use Agreement for Tourism Purposes (FLAgT) issued by the Department
of Environment and Natural Resources (DENR) in favor of Boracay West Cove.

Through a Decision on Zoning dated January 20, 2010, the Municipal Zoning Administrator denied
petitioners application on the ground that the proposed construction site was within the no build zone
demarcated in Municipal Ordinance 2000-131 (Ordinance).3 As provided in the Ordinance: chanRoblesvirtualLawlibrary

SECTION 2. Definition of Terms. As used in this Ordinance, the following words, terms and phrases shall
mean as follows: chanRoblesvirt ualLawlibrary

xxxx

(b) No Build Zone the space twenty-five (25) meters from the edge of the mean high water mark
measured inland;

xxxx

SECTION 3. No building or structure of any kind whether temporary or permanent shall be allowed to be
set up, erected or constructed on the beaches around the Island of Boracay and in its offshore waters.
During the conduct of special activities or special events, the Sangguniang Bayan may, through a
Resolution, authorize the Office of the Mayor to issue Special Permits for construction of temporary
structures on the beach for the duration of the special activity as embodied in the Resolution.

In due time, petitioner appealed the denial action to the Office of the Mayor on February 1, 2010.

On May 13, 2010, petitioner followed up his appeal through a letter but no action was ever taken by the
respondent mayor. On April 5, 2011, however, a Notice of Assessment was sent to petitioner asking for the
settlement of Boracay West Coves unpaid taxes and other liabilities under pain of a recommendation for
closure in view of its continuous commercial operation since 2009 sans the necessary zoning clearance,
building permit, and business and mayors permit. In reply, petitioner expressed willingness to settle the
companys obligations, but the municipal treasurer refused to accept the tendered payment. Meanwhile,
petitioner continued with the construction, expansion, and operation of the resort hotel.

Subsequently, on March 28, 2011, a Cease and Desist Order was issued by the municipal government,
enjoining the expansion of the resort, and on June 7, 2011, the Office of the Mayor of Malay, Aklan issued
the assailed EO 10, ordering the closure and demolition of Boracay West Coves hotel.

EO 10 was partially implemented on June 10, 2011. Thereafter, two more instances followed wherein
respondents demolished the improvements introduced by Boracay West Cove, the most recent of which was
made in February 2014.

Alleging that the order was issued and executed with grave abuse of discretion, petitioner filed a Petition for
Certiorari with prayer for injunctive relief with the CA. He argued that judicial proceedings should first be
conducted before the respondent mayor could order the demolition of the companys establishment; that
Boracay West Cove was granted a FLAgT by the DENR, which bestowed the company the right to construct
permanent improvements on the area in question; that since the area is a forestland, it is the DENRand
not the municipality of Malay, or any other local government unit for that matterthat has primary
jurisdiction over the area, and that the Regional Executive Director of DENR-Region 6 had officially issued an
opinion regarding the legal issues involved in the present case; that the Ordinance admits of exceptions;
and lastly, that it is the mayor who should be blamed for not issuing the necessary clearances in the
companys favor.

In rebuttal, respondents contended that the FLAgT does not excuse the company from complying with the
Ordinance and Presidential Decree No. 1096 (PD 1096), otherwise known as the National Building Code of
the Philippines. Respondents also argued that the demolition needed no court order because the municipal
mayor has the express power under the Local Government Code (LGC) to order the removal of illegally
constructed buildings.

Ruling of the Court of Appeals

In its assailed Decision dated August 13, 2013, the CA dismissed the petition solely on procedural ground,
i.e., the special writ of certiorari can only be directed against a tribunal, board, or officer exercising judicial
or quasi-judicial functions and since the issuance of EO 10 was done in the exercise of executive functions,
and not of judicial or quasi-judicial functions, certiorari will not lie. Instead, the proper remedy for the
petitioner, according to the CA, is to file a petition for declaratory relief with the Regional Trial Court.

Petitioner sought reconsideration but this was denied by the CA on February 3, 2014 through the challenged
Resolution. Hence, the instant petition raising arguments on both procedure and substance.

The Issues

Stripped to the essentials, the pivotal issues in the extant case are as follows: chanRoblesvirtualLawlibrary

The propriety under the premises of the filing of a petition for certiorari instead of a petition for
declaratory relief;

a. Whether or not declaratory relief is still available to petitioner;

b. Whether or not the CA correctly ruled that the respondent mayor was performing neither a judicial
nor quasi-judicial function when he ordered the closure and demolition of Boracay West Coves
hotel;

Whether or not respondent mayor committed grave abuse of discretion when he issued EO 10;

a. Whether or not petitioners right to due process was violated when the respondent mayor ordered
the closure and demolition of Boracay West Coves hotel without first conducting judicial
proceedings;

b. Whether or not the LGUs refusal to issue petitioner the necessary building permit and clearances
was justified;

c. Whether or not petitioners rights under the FLAgT prevail over the municipal ordinance providing
for a no-build zone; and ChanRoblesVirtualawlibrary

d. Whether or not the DENR has primary jurisdiction over the controversy, not the LGU.

The Courts Ruling

We deny the petition.

Certiorari, not declaratory relief, is the proper remedy

a. Declaratory relief no longer viable


Resolving first the procedural aspect of the case, We find merit in petitioners contention that the special
writ of certiorari , and not declaratory relief, is the proper remedy for assailing EO 10. As provided under
Sec. 1, Rule 63 of the Rules of Court: chanRoblesvirtualLawlibrary

SECTION 1. Who may file petition. Any person interested under a deed, will, contract or other written
instrument, whose rights are affected by a statute, executive order or regulation, ordinance or any other
governmental regulation may, before breach or violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his
rights or duties, thereunder. x x x (emphasis added)

An action for declaratory relief presupposes that there has been no actual breach of the instruments
involved or of the rights arising thereunder. Since the purpose of an action for declaratory relief is to secure
an authoritative statement of the rights and obligations of the parties under a statute, deed, or contract for
their guidance in the enforcement thereof, or compliance therewith, and not to settle issues arising from an
alleged breach thereof, it may be entertained before the breach or violation of the statute, deed or contract
to which it refers. A petition for declaratory relief gives a practical remedy for ending controversies that
have not reached the state where another relief is immediately available; and supplies the need for a form
of action that will set controversies at rest before they lead to a repudiation of obligations, an invasion of
rights, and a commission of wrongs.4 cralawlawlibrary

In the case at bar, the petition for declaratory relief became unavailable by EO 10s enforcement and
implementation. The closure and demolition of the hotel rendered futile any possible guidelines that may be
issued by the trial court for carrying out the directives in the challenged EO 10. Indubitably, the CA erred
when it ruled that declaratory relief is the proper remedy given such a situation.

b. Petitioner correctly resorted to certiorari

On the propriety of filing a petition for certiorari , Sec. 1, Rule 65 of the Rules of Court provides: chanRoblesvirtualLawlibrary

Section 1. Petition for certiorari . When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may
require. x x x

For certiorari to prosper, the petitioner must establish the concurrence of the following requisites,
namely: chanRoblesvirt ualLawlibrary

1. The writ is directed against a tribunal, board, or officer exercising judicial or quasi-judicial functions;

2. Such tribunal, board, or officer has acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction; and ChanRoblesVirtualawlibrary

3. There is no appeal or any plain speedy, and adequate remedy in the ordinary course of law. 5

Guilty of reiteration, the CA immediately dismissed the Petition for Certiorari upon determining that the first
element is wantingthat respondent mayor was allegedly not exercising judicial or quasi-judicial functions
when he issued EO 10.

We are not persuaded.

The CA fell into a trap when it ruled that a mayor, an officer from the executive department, exercises an
executive function whenever he issues an Executive Order. This is tad too presumptive for it is the nature of
the act to be performed, rather than of the office, board, or body which performs it, that determines
whether or not a particular act is a discharge of judicial or quasi-judicial functions. The first requirement
for certiorari is satisfied if the officers act judicially in making their decision, whatever may be their public
character.6 cralawlawlibrary
It is not essential that the challenged proceedings should be strictly and technically judicial, in the sense in
which that word is used when applied to courts of justice, but it is sufficient if they are quasi-judicial. 7 To
contrast, a party is said to be exercising a judicial function where he has the power to determine what the
law is and what legal rights of the parties are, and then undertakes to determine these questions and
adjudicate upon the rights of the parties, whereas quasi-judicial function is a term which applies to the
actions, discretion, etc., of public administrative officers or bodies x x x required to investigate facts or
ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for their official
action and to exercise discretion of a judicial nature.8
cralawlawlibrary

In the case at bench, the assailed EO 10 was issued upon the respondent mayors finding that Boracay West
Coves construction, expansion, and operation of its hotel in Malay, Aklan is illegal. Such a finding of
illegality required the respondent mayors exercise of quasi-judicial functions, against which the special writ
of certiorari may lie. Apropos hereto is Our ruling in City Engineer of Baguio v. Baniqued:9 cralawlawlibrary

There is no gainsaying that a city mayor is an executive official nor is the matter of issuing demolition
notices or orders not a ministerial one. In determining whether or not a structure is illegal or it should be
demolished, property rights are involved thereby needing notices and opportunity to be heard as provided
for in the constitutionally guaranteed right of due process. In pursuit of these functions, the city mayor has
to exercise quasi-judicial powers.

With the foregoing discussion, the CA erred in ruling that the respondent mayor was merely exercising his
executive functions, for clearly, the first requisite for the special writ has been satisfied.

Aside from the first requisite, We likewise hold that the third element, i.e., the unavailability of a plain,
speedy, or adequate remedy, is also present herein. While it may be argued that, under the LGC, Executive
Orders issued by mayors are subject to review by provincial governors, 10 this cannot be considered as an
adequate remedy given the exigencies of petitioners predicament.

In a litany of cases, We have held that it is inadequacy, not the mere absence of all other legal remedies
and the danger of failure of justice without the writ, that must usually determine the propriety of certiorari .
A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of
the judgment, order, or resolution of the lower court or agency. It is understood, then, that a litigant need
not mark time by resorting to the less speedy remedy of appeal in order to have an order annulled and set
aside for being patently void for failure of the trial court to comply with the Rules of Court. 11 cralawlawlibrary

Before applying this doctrine, it must first be borne in mind that respondents in this case have already taken
measures towards implementing EO 10. In fact, substantial segments of the hotel have already been
demolished pursuant to the mayors directive. It is then understandable why petitioner prayed for the
issuance of an injunctive writa provisional remedy that would otherwise have been unavailable had he
sought a reversal from the office of the provincial governor of Aklan. Evidently, petitioner correctly saw the
urgent need for judicial intervention via certiorari .

In light of the foregoing, the CA should have proceeded to grab the bull by its horns and determine the
existence of the second element of certiorari whether or not there was grave abuse of discretion on the
part of respondents.

Upon Our finding that a petition for certiorari under Rule 65 is the appropriate remedy, We will proceed to
resolve the core issues in view of the urgency of the reliefs prayed for in the petition.

Respondents did not commit grave abuse of discretion

a. The hotels classification as a nuisance

Article 694 of the Civil Code defines nuisance as any act, omission, establishment, business, condition or
property, or anything else that (1) injures or endangers the health or safety of others; (2) annoys or offends
the senses; (3) shocks, defies or disregards decency or morality; (4) obstructs or interferes with the free
passage of any public highway or street, or any body of water; or (5) hinders or impairs the use of
property.12cralawlawlibrary

In establishing a no build zone through local legislation, the LGU effectively made a determination that
constructions therein, without first securing exemptions from the local council, qualify as nuisances for they
pose a threat to public safety. No build zones are intended for the protection of the public because the
stability of the grounds foundation is adversely affected by the nearby body of water. The ever present
threat of high rising storm surges also justifies the ban on permanent constructions near the shoreline.
Indeed, the areas exposure to potential geo-hazards cannot be ignored and ample protection to the
residents of Malay, Aklan should be afforded.

Challenging the validity of the public respondents actuations, petitioner posits that the hotel cannot
summarily be abated because it is not a nuisance per se, given the hundred million peso-worth of capital
infused in the venture. Citing Asilo, Jr. v. People,13 petitioner also argues that respondents should have first
secured a court order before proceeding with the demolition.

Preliminarily, We agree with petitioners posture that the property involved cannot be classified as a
nuisance per se, but not for the reason he so offers. Property valuation, after all, is not the litmus test for
such a determination. More controlling is the propertys nature and conditions, which should be evaluated to
see if it qualifies as a nuisance as defined under the law.

As jurisprudence elucidates, nuisances are of two kinds: nuisance per se and nuisance per accidens. The
first is recognized as a nuisance under any and all circumstances, because it constitutes a direct menace to
public health or safety, and, for that reason, may be abated summarily under the undefined law of
necessity. The second is that which depends upon certain conditions and circumstances, and its existence
being a question of fact, it cannot be abated without due hearing thereon in a tribunal authorized to decide
whether such a thing does in law constitute a nuisance.14 cralawlawlibrary

In the case at bar, the hotel, in itself, cannot be considered as a nuisance per se since this type of nuisance
is generally defined as an act, occupation, or structure, which is a nuisance at all times and under any
circumstances, regardless of location or surrounding.15 Here, it is merely the hotels particular incident
its locationand not its inherent qualities that rendered it a nuisance. Otherwise stated, had it not been
constructed in the no build zone, Boracay West Cove could have secured the necessary permits without
issue. As such, petitioner is correct that the hotel is not a nuisance per se, but to Our mind, it is still a
nuisance per accidens.

b. Respondent mayor has the power to order the demolition of illegal constructions

Generally, LGUs have no power to declare a particular thing as a nuisance unless such a thing is a
nuisance per se.16 So it was held in AC Enterprises v. Frabelle Properties Corp:17 cralawlawlibrary

We agree with petitioners contention that, under Section 447(a)(3)(i) of R.A. No. 7160, otherwise known as
the Local Government Code, the Sangguniang Panglungsod is empowered to enact ordinances declaring,
preventing or abating noise and other forms of nuisance. It bears stressing, however, that the Sangguniang
Bayan cannot declare a particular thing as a nuisance per se and order its condemnation. It does not have
the power to find, as a fact, that a particular thing is a nuisance when such thing is not a
nuisance per se; nor can it authorize the extrajudicial condemnation and destruction of that as a
nuisance which in its nature, situation or use is not such. Those things must be determined and
resolved in the ordinary courts of law. If a thing, be in fact, a nuisance due to the manner of its
operation, that question cannot be determined by a mere resolution of the Sangguniang Bayan. (emphasis
supplied)

Despite the hotels classification as a nuisance per accidens, however, We still find in this case that the LGU
may nevertheless properly order the hotels demolition. This is because, in the exercise of police power and
the general welfare clause,18 property rights of individuals may be subjected to restraints and burdens in
order to fulfill the objectives of the government. Otherwise stated, the government may enact legislation
that may interfere with personal liberty, property, lawful businesses and occupations to promote the general
welfare.19
cralawlawlibrary

One such piece of legislation is the LGC, which authorizes city and municipal governments, acting through
their local chief executives, to issue demolition orders. Under existing laws, the office of the mayor is given
powers not only relative to its function as the executive official of the town; it has also been endowed with
authority to hear issues involving property rights of individuals and to come out with an effective order or
resolution thereon.20 Pertinent herein is Sec. 444 (b)(3)(vi) of the LGC, which empowered the mayor to
order the closure and removal of illegally constructed establishments for failing to secure the necessary
permits, to wit: chanRoblesvirt ualLawlibrary
Section 444. The Chief Executive: Powers, Duties, Functions and Compensation.

xxxx

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the
municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall: chanroblesvirtuallawlibrary

xxxx

(3) Initiate and maximize the generation of resources and revenues, and apply the same to the
implementation of development plans, program objectives and priorities as provided for under Section 18 of
this Code, particularly those resources and revenues programmed for agro-industrial development and
country-wide growth and progress, and relative thereto, shall: chanroblesvirtuallawlibrary

xxxx

(vi) Require owners of illegally constructed houses, buildings or other structures to obtain the
necessary permit, subject to such fines and penalties as may be imposed by law or ordinance, or
to make necessary changes in the construction of the same when said construction violates any
law or ordinance, or to order the demolition or removal of said house, building or structure
within the period prescribed by law or ordinance. (emphasis supplied)

c. Requirements for the exercise of the power are present


i. Illegality of structures

In the case at bar, petitioner admittedly failed to secure the necessary permits, clearances, and exemptions
before the construction, expansion, and operation of Boracay Wet Coves hotel in Malay, Aklan. To recall,
petitioner declared that the application for zoning compliance was still pending with the office of the mayor
even though construction and operation were already ongoing at the same time. As such, it could no longer
be denied that petitioner openly violated Municipal Ordinance 2000-131, which provides: chanRoblesvirtualLawlibrary

SECTION 9. Permits and Clearances.

(a) No building or structure shall be allowed to start construction


unless a Building Permit therefore has been duly issued by the
Office of the Municipal Engineer. Once issued, the building owner or
any person in charge of the construction shall display on the lot or on the
building undergoing construction a placard containing the Building Permit
Number and the date of its issue. The office of the Municipal
Engineer shall not issue any building permit unless:

1. The proposed construction has been duly issued a Zoning


Clearance by the Office of the Municipal Zoning Officer;

2. The proposed construction has been duly endorsed by the


Sangguniang Bayan through a Letter of Endorsement.

(b) Only buildings/structures which has complied with all the requirements
for its construction as verified to by the Building Inspector and the
Sangguniang Bayan shall be issued a Certificate of Occupancy by the
Office of the Municipal Engineer.
(c) No Business or Mayors Permit shall be issued to businesses
being undertaken on buildings or structures which were not
issued a certificate of Occupancy beginning January 2001 and
thereafter.
xxxx

SECTION 10. Penalties.

xxxx

(e) Any building, structure, or contraption erected in any public place within the Municipality of Malay such
as but not limited to streets, thoroughfares, sidewalks, plazas, beaches or in any other public place are
hereby declared as nuisance and illegal structure. Such building structure or contraption shall be
demolished by the owner thereof or any of his authorized representative within ten (10) days
from receipt of the notice to demolish. Failure or refusal on the part of the owner or any of his
authorized representative to demolish the illegal structure within the period herein above
specified shall automatically authorize the government of the Municipality of Malay to demolish
the same, gather and keep the construction materials of the demolished structure. (emphasis
supplied)

Petitioner cannot justify his position by passing the blame onto the respondent mayor and the latters failure
to act on his appeal for this does not, in any way, imply that petitioner can proceed with his infrastructure
projects. On the contrary, this only means that the decision of the zoning administrator denying the
application still stands and that petitioner acquired no right to construct on the no build zone.
The illegality of the construction cannot be cured by merely tendering payment for the necessary fees and
permits since the LGUs refusal rests on valid grounds.

Instead of taking the law into his own hands, petitioner could have filed, as an alternative, a petition for
mandamus to compel the respondent mayor to exercise discretion and resolve the controversy pending
before his office. There is indeed an exception to the rule that matters involving judgment and discretion are
beyond the reach of a writ of mandamus, for such writ may be issued to compel action in those matters,
when refused. Whether or not the decision would be for or against petitioner would be for the respondent
mayor to decide, for while mandamus may be invoked to compel the exercise of discretion, it cannot compel
such discretion to be exercised in a particular way. 21 What would have been important was for the
respondent mayor to immediately resolve the case for petitioner to be able to go through the motions that
the zoning clearance application process entailed.

Alas, petitioner opted to defy the zoning administrators ruling. He consciously chose to violate not only the
Ordinance but also Sec. 301 of PD 1096, laying down the requirement of building permits, which
provides:chanRoblesvirtualLawlibrary

Section 301. Building Permits. No person, firm or corporation, including any agency or instrumentality of the
government shall erect, construct, alter, repair, move, convert or demolish any building or structure or
cause the same to be done without first obtaining a building permit therefor from the Building Official
assigned in the place where the subject building is located or the building work is to be done.

This twin violation of law and ordinance warranted the LGUs invocation of Sec. 444 (b)(3)(vi) of the LGC,
which power is separate and distinct from the power to summarily abate nuisances per se. Under the law,
insofar as illegal constructions are concerned, the mayor can, after satisfying the requirement of due notice
and hearing, order their closure and demolition.
ii. Observance of procedural due process rights
In the case at bench, the due process requirement is deemed to have been sufficiently complied
with. First, basic is the rule that public officers enjoy the presumption of regularity in the performance of
their duties.22 The burden is on the petitioner herein to prove that Boracay West Cove was deprived of the
opportunity to be heard before EO 10 was issued. Regrettably, copies of the Cease and Desist Order issued
by the LGU and of the assailed EO 10 itself were never attached to the petition before this Court, which
documents could have readily shed light on whether or not petitioner has been accorded the 10-day grace
period provided in Section 10 of the Ordinance. In view of this fact, the presumption of regularity must be
sustained. Second, as quoted by petitioner in his petition before the CA, the assailed EO 10 states that
petitioner received notices from the municipality government on March 7 and 28, 2011, requiring Boracay
West Cove to comply with the zoning ordinance and yet it failed to do so. 23 If such was the case, the grace
period can be deemed observed and the establishment was already ripe for closure and demolition by the
time EO 10 was issued in June. Third, the observance of the 10-day allowance for the owner to demolish the
hotel was never questioned by petitioner so there is no need to discuss the same. Verily, the only grounds
invoked by petitioner in crying due process violation are (1) the absence of a court order prior to demolition
and (2) the municipal governments exercise of jurisdiction over the controversy instead of the DENR.
Therefore, it can no longer be belatedly argued that the 10-day grace period was not observed because to
entertain the same would result in the violation of the respondents own due process rights.

Given the presence of the requirements under Sec. 444 (b)(3)(vi) of the LGC, whether the building
constituted a nuisance per se or a nuisance per accidens becomes immaterial. The hotel was demolished not
exactly because it is a nuisance but because it failed to comply with the legal requirements prior to
construction. It just so happened that, in the case at bar, the hotels incident that qualified it as a
nuisance per accidensits being constructed within the no build zonefurther resulted in the non-issuance
of the necessary permits and clearances, which is a ground for demolition under the LGC. Under the
premises, a court order that is required under normal circumstances is hereby dispensed with.

d. The FLAgT cannot prevail over the municipal ordinance and PD 1096

Petitioner next directs our attention to the following FLAgT provision: chanRoblesvirtualLawlibrary

VII. The SECOND PARTY may construct permanent and/or temporary improvements or infrastructure in the
FLAgT Area necessary and appropriate for its development for tourism purposes pursuant to the approved
SMP. Permanent Improvements refer to access roads, and buildings or structures which adhere to the
ground in a fixed and permanent manner. On the other hand, Temporary Improvements include those
which are detachable from the foundation or the ground introduced by the SECOND PARTY in the FLAgT
Area and which the SECOND PARTY may remove or dismantle upon expiration or cancellation of this
AGREEMENT x x x.24 chanrobleslaw

Taken in conjunction with the exceptions laid down in Sections 6 and 8 of the Ordinance, petitioner argues
that Boracay West Cove is exempted from securing permits from the LGU. Said exceptions read: chanRoblesvirt ualLawlibrary

SECTION 6. No building or structure shall be allowed to be constructed on a slope Twenty Five Percent
(25%) or higher unless provided with soil erosion protective structures and authorized by the Department of
Environment and Natural Resources.

xxxx

SECTION 8. No building or structure shall be allowed to be constructed on a swamp or other water-


clogged areas unless authorized by the Department of Environment and Natural Resources.

According to petitioner, the fact that it was issued a FLAgT constitutes sufficient authorization from the
DENR to proceed with the construction of the three-storey hotel.

The argument does not persuade.

The rights granted to petitioner under the FLAgT are not unbridled. Forestlands, although under the
management of the DENR, are not exempt from the territorial application of municipal laws, for local
government units legitimately exercise their powers of government over their defined territorial jurisdiction.

Furthermore, the conditions set forth in the FLAgT and the limitations circumscribed in the ordinance are not
mutually exclusive and are, in fact, cumulative. As sourced from Sec. 447 (a)(5)(i) of the LGC: chanRoblesvirt ualLawlibrary

Section 447. Powers, Duties, Functions and Compensation.

(a) The sangguniang bayan, as the legislative body of the municipality, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the municipality and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate powers of the municipality as provided
for under Section 22 of this Code, and shall: chanroblesvirtuallawlibrary

xxxx

(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:
chanroblesvirtuallawlibrary

(i) Provide for the establishment, maintenance, protection, and conservation of communal
forests and watersheds, tree parks, greenbelts, mangroves, and other similar forest development
projects x x x. (emphasis added)
Thus, aside from complying with the provisions in the FLAgT granted by the DENR, it was incumbent on
petitioner to likewise comply with the no build zone restriction under Municipal Ordinance 2000-131, which
was already in force even before the FLAgT was entered into. On this point, it is well to stress that Sections
6 and 8 of the Ordinance do not exempt petitioner from complying with the restrictions since these
provisions adverted to grant exemptions from the ban on constructions on slopes and swamps, not on the
no build zone.

Additionally, the FLAgT does not excuse petitioner from complying with PD 1096. As correctly pointed out by
respondents, the agreement cannot and will not amend or change the law because a legislative act cannot
be altered by mere contractual agreement. Hence, petitioner has no valid reason for its failure to secure a
building permit pursuant to Sec. 301 of the National Building Code.

e. The DENR does not have primary jurisdiction over the controversy

Lastly, in ascribing grave abuse of discretion on the part of the respondent mayor, petitioner argued that the
hotel site is a forestland under the primary jurisdiction of the DENR. As such, the merits of the case should
have been passed upon by the agency and not by the LGU. In the alternative, petitioner explains that even
if jurisdiction over the matter has been devolved in favor of the LGU, the DENR still has the power of review
and supervision over the formers rulings. As cited by the petitioner, the LGC reads: chanRoblesvirtualLawlibrary

Section 17. Basic Services and Facilities.

xxxx

(b) Such basic services and facilities include, but are not limited to, the following: chanroblesvirtuallawlibrary

xxxx

(2) For a Municipality: chanroblesvirtuallawlibrary

xxxx

(ii) Pursuant to national policies and subject to supervision, control and review of the DENR, implementation
of community-based forestry projects which include integrated social forestry programs and similar projects;
management and control of communal forests with an area not exceeding fifty (50) square kilometers;
establishment of tree parks, greenbelts, and similar forest development projects. (emphasis added)

Petitioner has made much of the fact that in line with this provision, the DENR Region 6 had issued an
opinion favourable to petitioner.25 To petitioner, the adverted opinion effectively reversed the findings of the
respondent mayor that the structure introduced was illegally constructed.

We disagree.

In alleging that the case concerns the development and the proper use of the countrys environment and
natural resources, petitioner is skirting the principal issue, which is Boracay West Coves non-compliance
with the permit, clearance, and zoning requirements for building constructions under national and municipal
laws. He downplays Boracay West Coves omission in a bid to justify ousting the LGU of jurisdiction over the
case and transferring the same to the DENR. He attempts to blow the issue out of proportion when it all
boils down to whether or not the construction of the three-storey hotel was supported by the necessary
documentary requirements.

Based on law and jurisprudence, the office of the mayor has quasi-judicial powers to order the closing and
demolition of establishments. This power granted by the LGC, as earlier explained, We believe, is not the
same power devolved in favor of the LGU under Sec. 17 (b)(2)(ii), as above-quoted, which is subject to
review by the DENR. The fact that the building to be demolished is located within a forestland under the
administration of the DENR is of no moment, for what is involved herein, strictly speaking, is not an issue on
environmental protection, conservation of natural resources, and the maintenance of ecological balance, but
the legality or illegality of the structure. Rather than treating this as an environmental issue then, focus
should not be diverted from the root cause of this debaclecompliance.

Ultimately, the purported power of review by a regional office of the DENR over respondents actions
exercised through an instrumentality of an ex-parte opinion, in this case, finds no sufficient basis. At best,
the legal opinion rendered, though perhaps informative, is not conclusive on the courts and should be taken
with a grain of salt.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED for lack of merit. The Decision and
the Resolution of the Court of Appeals in CA-G.R. SP No. 120042 dated August 13, 2013 and February 3,
2014, respectively, are hereby AFFIRMED.

SO ORDERED. cralawre d

Peralta, Villarama, Jr., Reyes, and Jardeleza, JJ., concur.

Endnotes:

1
Rollo, pp. 49-60. Penned by Associate Justice Carmelita Salandanan-Manahan and concurred in by
Associate Justices Ramon Paul L. Hernando and Ma. Luisa C. Quijano-Padilla.

2
Id. at 65.

3
Id. at 196-198.

4
Phil-Ville Development and Housing Corporation v. Bonifacio, G.R. No. 167391, June 8, 2011, 631 SCRA
327, 350-351.

Yusay v. Court of Appeals, G.R. No. 156684, April 6, 2011, 647 SCRA 269, 276-277.
5

The Municipal Council of Lemery, Batangas v. The Provincial Board of Batangas, 56 Phil. 260 (1931).
6

7
Id.

8
Galicto v. Aquino, G.R. No. 193978, February 28, 2012, 667 SCRA 150, 167.

9
G.R. No. 150270, November 26, 2008, 571 SCRA 617, 633.

10
Section 30. Review of Executive Orders. -

(a) Except as otherwise provided under the Constitution and special statutes, the governor shall review all
executive orders promulgated by the component city or municipal mayor within his jurisdiction. The city or
municipal mayor shall review all executive orders promulgated by the punong barangay within his
jurisdiction. Copies of such orders shall be forwarded to the governor or the city or municipal mayor, as the
case may be, within three (3) days from their issuance. In all instances of review, the local chief executive
concerned shall ensure that such executive orders are within the powers granted by law and in conformity
with provincial, city, or municipal ordinances.

(b) If the governor or the city or municipal mayor fails to act on said executive orders within thirty (30) days
after their submission, the same shall be deemed consistent with law and therefore valid.

Heirs of Spouses Teofilo M. Reterta and Elisa Reterta v. Spouses Lorenzo Mores and Virginia Lopez, G.R.
11

No. 159941, August 17, 2011, 655 SCRA 580, 594-595; citing Jaca v. Davao Lumber Company, G.R. No. L-
25771, March 29, 1982, 113 SCRA 107, 129, Metropolitan Bank and Trust Company, Inc. v. National Wages
and Productivity Commission, G.R. No. 144322, February 6, 2007, 514 SCRA 346, and Lu Ym v. Nabua, G.R.
No. 161309, February 23, 2005, 452 SCRA 298, 311.

12
Gancayo v. City Government of Quezon, G.R. No. 177807, October 11, 2011, 658 SCRA 853, 867.

13
G.R. Nos. 159017-18, 159059, March 9, 2011, 645 SCRA 41.

14
Salao v. Santos, 67 Phil. 550 (1939).

15
2 J.C.S. Sangco, Torts and Damages 893 (1994).

16
AC Enterprises v. Frabelle Properties Corp., G.R. No. 166744, November 2, 2006, 506 SCRA 625, 660-661.
17
Id.

18
Section 16. General Welfare. - Every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient
and effective governance, and those which are essential to the promotion of the general welfare. Within
their respective territorial jurisdictions, local government units shall ensure and support, among other
things, the preservation and enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of appropriate and self-reliant
scientific and technological capabilities, improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants.
19
Gancayo v. City Government of Quezon, supra note 12, at 864-865.
20
City Engineer of Baguio v. Baniqued, supra note 9, at 633.
21
Amante v. Hidalgo, 67 Phil. 338 (1939).
22
Rules of Court, Rule 131, Sec. 3(m).
23
Rollo, p. 88.
24
Id. at 191.
25
Id. at 144.

EN BANC

[G.R. No. 104988. June 18, 1996]

MUSTANG LUMBER, INC., petitioner, vs. HON. COURT OF APPEALS,


HON. FULGENCIO S. FACTORAN, JR., Secretary, Department of
Environment and Natural Resources (DENR), and ATTY.
VINCENT A. ROBLES, Chief, Special Actions and Investigation
Division, DENR, respondents.

[G.R. No. 106424. June 18, 1996]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. TERESITA DIZON-


CAPULONG, in her capacity as the Presiding Judge, Regional
Trial Court National Capital Judicial Region, Branch 172,
Valenzuela, Metro Manila, and RI CHUY PO, respondents.

[G.R. No. 123784. June 18, 1996]


MUSTANG LUMBER, INC., petitioner, vs. HON. COURT OF APPEALS,
ATTY. VINCENT A. ROBLES, Chief, Special Actions and
Investigation Division, Department of Environment and Natural
Resources (DENR), ATTY. NESTOR V. GAPUSAN, TIRSO P.
PARIAN, JR., and FELIPE H. CALLORINA, JR., respondents.

DECISION
DAVIDE, JR., J.:

The first and third cases, G.R. No. 104988 and G.R. No. 123784, were
originally assigned to the Second and Third Divisions of the Court,
respectively. They were subsequently consolidated with the second, a case of
the Court en banc.
Petitioner, a domestic corporation with principal office at Nos. 1350-1352
Juan Luna Street, Tondo, Manila, and with a lumberyard at Fortune Street,
Fortune Village, Paseo de Blas, Valenzuela, Metro Manila, was duly registered
as a lumber dealer with the Bureau of Forest Development (BFD) under
Certificate of Registration No. NRD-4-092590-0469. Its permit as such was to
expire on 25 September 1990.
Respondent Secretary Fulgencio S. Factoran, Jr., and respondent Atty.
Vincent A. Robles were, during all the time material to these cases, the
Secretary of the Department of Environment and Natural Resources (DENR)
and the Chief of the Special Actions and Investigation Division (SAID) of the
DENR, respectively.
The material operative facts are as follows:
On 1 April 1990, acting on an information that a huge stockpile of narra
flitches, shorts, and slabs were seen inside the lumberyard of the petitioner in
Valenzuela, Metro Manila, the SAID organized a team of foresters and
policemen and sent it to conduct surveillance at the said lumberyard. In the
course thereof, the team members saw coming out from the lumberyard the
petitioner's truck, with Plate No. CCK-322, loaded with lauan and almaciga
lumber of assorted sizes and dimensions. Since the driver could not produce
the required invoices and transport documents, the team seized the truck
together with its cargo and impounded them at the DENR compound at
Visayas Avenue, Quezon City. The team was not able to gain entry into the
[1]

premises because of the refusal of the owner. [2]

On 3 April 1990, the team was able to secure a search warrant from
Executive Judge Adriano R. Osorio of the Regional Trial Court (RTC) of
Valenzuela, Metro Manila. By virtue thereof, the team seized on that date from
the petitioners lumberyard four truckloads of narra shorts, trimmings, and
slabs; a negligible number of narra lumber; and approximately 200,000 board
feet of lumber and shorts of various species including almaciga and supa. [3]

On 4 April 1990, the team returned to the premises of the petitioner 's
lumberyard in Valenzuela and placed under administrative seizure the
remaining stockpile of almaciga, supa, and lauan lumber with a total volume of
311,000 board feet because the petitioner failed to produce upon demand the
corresponding certificate of lumber origin, auxiliary invoices, tally sheets, and
delivery receipts from the source of the invoices covering the lumber to prove
the legitimacy of their source and origin. [4]

Parenthetically, it may be stated that under an administrative seizure the


owner retains the physical possession of the seized articles. Only an inventory
of the articles is taken and signed by the owner or his representative. The
owner is prohibited from disposing them until further orders. [5]

On 10 April 1990, counsel for the petitioner sent a letter to Robles


requesting an extension of fifteen days from 14 April 1990 to produce the
required documents covering the seized articles because some of them,
particularly the certificate of lumber origin, were allegedly in the Province of
Quirino. Robles denied the motion on the ground that the documents being
required from the petitioner must accompany the lumber or forest products
placed under seizure. [6]

On 11 April 1990, Robles submitted his memorandum-report


recommending to Secretary Factoran the following:
1. Suspension and subsequent cancellation of the lumber Dealer's Permit of Mustang
Lumber, Inc. for operating an unregistered lumberyard and resaw mill and
possession of Almaciga Lumber (a banned specie) without the required documents;
2. Confiscation of the lumber seized at the Mustang Lumberyard including the truck
with Plate No. CCK-322 and the lumber loaded herein [sic] now at the DENR
compound in the event its owner fails to submit documents showing legitimacy of
the source of said lumber within ten days from date of seizure;
3. Filing of criminal charges against Mr. Ri Chuy Po, owner of Mustang Lumber Inc.
and Mr. Ruiz, or if the circumstances warrant for illegal possession of narra and
almaciga lumber and shorts if and when recommendation no. 2 pushes through;
4. Confiscation of Trucks with Plate No. CCS-639 and CDV-458 as well as the lumber
loaded therein for transport lumber using recycled documents.[7]

On 23 April 1990, Secretary Factoran issued an order suspending


immediately the petitioner's lumber-dealer's permit No. NRD-4-092590-0469
and directing the petitioner to explain in writing within fifteen days why its
lumber-dealer's permit should not be cancelled.
On the same date, counsel for the petitioner sent another letter to Robles
informing the latter that the petitioner had already secured the required
documents and was ready to submit them. None, however, was submitted. [8]

On 3 May 1990, Secretary Factoran issued another order wherein, after


reciting the events which took place on 1 April and 3 April 1990, he ordered
CONFISCATED in favor of the government to be disposed of in accordance
with law the approximately 311,000 board feet of lauan, supa, and almaciga
lumber, shorts, and sticks found inside the petitioner's lumberyard. [9]

On 11 July 1990, the petitioner filed with the RTC of Manila a petition
for certiorari and prohibition with a prayer for a restraining order or preliminary
injunction against Secretary Fulgencio S. Factoran, Jr., and Atty. Vincent A.
Robles. The case (hereinafter, the FIRST CIVIL CASE) was docketed as Civil
Case No. 90-53648 and assigned to Branch 35 o the said court. The petitioner
questioned therein (a) the seizure on 1 April 1990, without any search and
seizure order issued by a judge, of its truck with Plate No. CCK-322 and its
cargo of assorted lumber consisting of apitong, tanguile, and lauan of different
sizes and dimensions with a total value of P38,000.00; and (b) the orders of
Secretary Factoran of 23 April 1990 for lack of prior notice and hearing and of
3 May 1990 for violation of Section 2, Article III of the Constitution.
On 17 September 1990, in response to reports that violations of P.D. No.
705 (The Revised Forestry Code of the Philippines), as amended, were
committed and acting upon instruction of Robles and under Special Order No.
897, series of 1990, a team of DENR agents went to the business premises of
the petitioner located at No. 1352 Juan Luna Street, Tondo, Manila.The team
caught the petitioner operating as a lumber dealer although its lumber-dealer's
permit had already been suspended on 23 April 1990. Since the gate of the
petitioner's lumberyard was open, the team went inside and saw an owner-
type jeep with a trailer loaded with lumber. Upon investigation, the team was
informed that the lumber loaded on the trailer was to be delivered to the
petitioner's customer. It also came upon the sales invoice covering the
transaction. The members of the team then introduced themselves to the
caretaker, one Ms. Chua, who turned out to be the wife of the petitioner's
president and general manager, Mr. Ri Chuy Po, who was then out of
town. The team's photographer was able to take photographs of the stockpiles
of lumber including newly cut ones, fresh dust around sawing or cutting
machineries and equipment, and the transport vehicles loaded with
lumber. The team thereupon effected a constructive seizure of approximately
20,000 board feet of lauan lumber in assorted sizes stockpiled in the premises
by issuing a receipt therefor.
[10]
As a consequence of this 17 September 1990 incident, the petitioner filed
with the RTC of Manila a petition for certiorari and prohibition. The case
(hereinafter, the SECOND CIVIL CASE) was docketed as Civil Case No. 90-
54610 and assigned to Branch 24 of the said court.
In the meantime, Robles filed with the Department of Justice (DOJ) a
complaint against the petitioner's president and general manager, Ri Chuy Po,
for violation of Section 68 of P.D. No. 705, as amended by E.O. No. 277. After
appropriate preliminary investigation, the investigating prosecutor, Claro
Arellano, handed down a resolution whose dispositive portion reads:
[11]

WHEREFORE, premises considered, it is hereby recommended that an information


be filed against respondent Ri Chuy Po for illegal possession of approximately
200,000 bd. ft. of lumber consisting of almaciga and supa and for illegal shipment of
almaciga and lauan in violation of Sec. 68 of PD 705 as amended by E.O. 277, series
of 1987.

It is further recommended that the 30,000 bd. ft. of narra shorts, trimmings and slabs
covered by legal documents be released to the rightful owner, Malupa. [12]

This resolution was approved by Undersecretary of Justice Silvestre H.


Bello, III, who served as Chairman of the Task Force on Illegal Logging. [13]

On the basis of that resolution, an information was filed on 5 June 1991 by


the DOJ with Branch 172 of the RTC of Valenzuela, charging Ri Chuy Po with
the violation of Section 68 of P.D. No. 705, as amended, which was docketed
as Criminal Case No. 324-V-91 (hereinafter, the CRIMINAL CASE). The
accusatory portion of the information reads as follows:
That on or about the 3rd day of April 1990, or prior to or subsequent thereto, within the
premises and vicinity of Mustang Lumber, Inc. in Fortune Village, Valenzuela, Metro Manila, and
within the jurisdiction of this Honorable Court, the above-named accused, did then and there
wilfully, feloniously and unlawfully, have in his possession truckloads of almaciga and lauan and
approximately 200,000 bd. ft. of lumber and shorts of various species including almaciga and
supa, without the legal documents as required under existing forest laws and regulations.[14]

On 7 June 1991, Branch 35 of the RTC of Manila rendered its decision in [15]

the FIRST CIVIL CASE, the dispositive portion of which reads:

WHEREFORE, judgment in this case is rendered as follows:

1. The Order of Respondent Secretary of the DENR, the Honorable Fulgencio S.


Factoran, Jr., dated 3 May 1990 ordering the confiscation in favor of the
Government the approximately 311,000 board feet of lauan, supa, and almaciga
lumber, shorts and sticks, found inside and seized from the lumberyard of the
petitioner at Fortune Drive, Fortune Village, Paseo de Blas, Valenzuela, Metro
Manila, on April 4, 1990 (Exhibit 10), is hereby set aside and vacated, and instead
the respondents are required to report and bring to the Hon. Adriano Osorio,
Executive Judge, Regional Trial Court, NCJR, Valenzuela, Metro Manila, the said
311,000 board feet of Lauan, supa and almaciga Lumber, shorts and sticks, to be
dealt with as directed by law;
2. The respondents are required to initiate and prosecute the appropriate action before
the proper court regarding the lauan and almaciga lumber of assorted sizes and
dimensions loaded in petitioner's truck bearing Plate No. CCK-322 which were
seized on April 1, 1990;
3. The Writ of Preliminary Injunction issued by the Court on August 2, 1990 shall be
rendered functus oficio upon compliance by the respondents with paragraphs 1 and
2 of this judgment;
4. Action on the prayer of the petitioner that the lauan, supa and almaciga lumber,
shorts and sticks mentioned above in paragraphs 1 and 2 of this judgment be
returned to said petitioner, is withheld in this case until after the proper court has
taken cognizance and determined how those lumber, shorts and sticks should be
disposed of; and
5. The petitioner is ordered to pay the costs.

SO ORDERED.

In resolving the said case, the trial court held that the warrantless search
and seizure on 1 April 1990 of the petitioner's truck, which was moving out
from the petitioner's lumberyard in Valenzuela, Metro Manila, loaded with
large volumes of lumber without covering document showing the legitimacy of
its source or origin did not offend the constitutional mandate that search and
seizure must be supported by a valid warrant. The situation fell under one of
the settled and accepted exceptions where warrantless search and seizure is
justified, viz., a search of a moving vehicle. As to the seizure of a large
[16]

volume of almaciga, supa, and lauan lumber and shorts effected on 4 April
1990, the trial court ruled that the said seizure was a continuation of that
made the previous day and was still pursuant to or by virtue of the search
warrant issued by Executive Judge Osorio whose validity the petitioner did not
even question. And, although the search warrant did not specifically mention
[17]

almaciga, supa, and lauan lumber and shorts, their seizure was valid because
it is settled that the executing officer is not required to ignore contrabands
observed during the conduct of the search. [18]

The trial court, however, set aside Secretary Factoran's order of 3 May
1990 ordering the confiscation of the seized articles in favor of the
Government for the reason that since the articles were seized pursuant to the
search warrant issued by Executive Judge Osorio they should have been
returned to him in compliance with the directive in the warrant.
As to the propriety of the 23 April 1990 order of Secretary Factoran, the
trial court ruled that the same had been rendered moot and academic by the
expiration of the petitioner's lumber-dealer's permit on 25 September 1990, a
fact the petitioner admitted in its memorandum.
The petitioner forthwith appealed from the decision in the FIRST CIVIL
CASE to the Court of Appeals, which docketed the appeal as CA-G.R. SP No.
25510.
On 7 July 1991, accused Ri Chuy Po filed in the CRIMINAL CASE a
Motion to Quash and/or to Suspend Proceedings based on the following
grounds: (a) the information does not charge an offense, for possession
of lumber, as opposed to timber, is not penalized in Section 68 of P.D. No.
705, as amended, and even granting arguendo that lumber falls within the
purview of the said section, the same may not be used in evidence against
him for they were taken by virtue of an illegal seizure; and (b) Civil Case No.
90-53648 of Branch 35 of the RTC of Manila, the FIRST CIVIL CASE, then
pending before the Court of Appeals, which involves the legality of the seizure,
raises a prejudicial question.[19]

The prosecution opposed the motion alleging that lumber is included in


Section 68 of P.D. No. 705, as amended, and possession thereof without the
required legal documents is penalized therein. It referred to Section 3.2 of
DENR Administrative Order No. 19, series of 1989, for the definitions
of timber and lumber, and then argued that exclusion of lumber from Section
68 would defeat the very purpose of the law, i.e., to minimize, if not halt, illegal
logging that has resulted in the rapid denudation of our forest resources. [20]

In her order of 16 August 1991 in the CRIMINAL CASE, respondent [21]

Judge Teresita Dizon-Capulong granted the motion to quash and dismissed


the case on the ground that "possession of lumber without the legal
documents required by forest laws and regulations is not a crime." [22]

Its motion for reconsideration having been denied in the order of 18


October 1991, the People filed a petition for certiorari with this Court in G.R.
[23]

No. 106424, wherein it contends that the respondent Judge acted with grave
abuse of discretion in granting the motion to quash and in dismissing the
case.
On 29 November 1991, the Court of Appeals rendered a decision in CA- [24]

G.R. SP No. 25510 dismissing for lack of merit the petitioner's appeal from the
decision in the FIRST CIVIL CASE and affirming the trial court's rulings on the
issues raised. As to the claim that the truck was not carrying contraband
articles since there is no law punishing the possession of lumber, and
that lumber is not timber whose possession without the required legal
documents is unlawful under P.D. No. 705, as amended, the Court of Appeals
held:
This undue emphasis on lumber or the commercial nature of the forest
product involved has always been foisted by those who claim to be engaged
in the legitimate business of lumber dealership. But what is important to
consider is that when appellant was required to present the valid documents
showing its acquisition and lawful possession of the lumber in question, it
failed to present any despite the period of extension granted to it.
[25]

The petitioner's motion to reconsider the said decision was denied by the
Court of Appeals in its resolution of 3 March 1992. Hence, the petitioner
[26]

came to this Court by way of a petition for review on certiorari in G.R. No.
104988, which was filed on 2 May 1992. [27]

On 24 September 1992, Branch 24 of the RTC of Manila handed down a


decision in the SECOND CIVIL CASE dismissing the petition for certiorari and
prohibition because (a) the petitioner did not exhaust administrative remedies;
(b) when the seizure was made on 17 September 1990 the petitioner could
not lawfully sell lumber, as its license was still under suspension; (c) the
seizure was valid under Section 68-A of P.D. No. 705, as amended; and (d)
the seizure was justified as a warrantless search and seizure under Section
80 of P.D. No. 705, as amended.
The petitioner appealed from the decision to the Court of Appeals, which
docketed the appeal as CA-G.R. SP No. 33778.
In its decision of 31 July 1995, the Court of Appeals dismissed the
[28]

petitioner's appeal in CA-G.R. SP No. 33778 for lack of merit and sustained
the grounds relied upon by the trial court in dismissing the SECOND CIVIL
CASE. Relying on the definition of "lumber" by Webster, viz., "timber or logs,
especially after being prepared for the market," and by the Random House
Dictionary of the English Language, viz., "wood, esp. when suitable or
adapted for various building purposes," the respondent Court held that
since wood is included in the definition of forest product in Section 3(q) of P.D.
No. 705, as amended, lumber is necessarily included in Section 68 under the
term forest product.
The Court of Appeals further emphasized that a forest officer or employee
can seize the forest product involved in a violation of Section 68 of P.D. No.
705 pursuant to Section 80 thereof, as amended by P.D. No. 1775, which
provides in part as follows:
SEC. 80. Arrest, Institution of Criminal Actions. A forest officer or employee of the
Bureau or any personnel of the Philippine Constabulary/Integrated National Police
shall arrest even without warrant any person who has committed or is committing in
his presence any of the offenses defined in this chapter. He shall also seize and
confiscate, in favor of the Government, the tools and equipment used in committing
the offense, or the forest products cut, gathered or taken by the offender in the process
of committing the offense.

Among the offenses punished in the chapter referred to in said Section 80


are the cutting, gathering, collection, or removal of timber or other forest
products or possession of timber or other forest products without the required
legal documents.
Its motion to reconsider the decision having been denied by the Court of
Appeals in the resolution of 6 February 1996, the petitioner filed with this
Court on 27 February 1996 a petition for review on certiorari in G.R. No.
123784.
We shall now resolve these three cases starting with G.R. 106424 with
which the other two were consolidated.

G.R. No. 106424

The petitioner had moved to quash the information in Criminal Case No.
324-V-91 on the ground that it does not charge an offense. Respondent Judge
Dizon-Capulong granted the motion reasoning that the subject matter of the
information in the CRIMINAL CASE is LUMBER, which is neither "timber" nor
"other forest product" under Section 68 of P.D. No. 705, as amended, and
hence, possession thereof without the required legal documents is not
prohibited and penalized under the said section.
Under paragraph (a), Section 3, Rule 117 of the Rules of Court, an
information may be quashed on the ground that the facts alleged therein do
not constitute an offense. It has been said that "the test for the correctness of
this ground is the sufficiency of the averments in the information, that is,
whether the facts alleged, if hypothetically admitted, constitute the elements of
the offense, and matters aliunde will not be considered." Anent the
[29]

sufficiency of the information, Section 6, Rule 110 of the Rules of Court


requires, inter alia, that the information state the acts or omissions complained
of as constituting the offense.
Respondent Ri Chuy Po is charged with the violation of Section 68 of P.D.
No. 705, as amended by E.O. No. 277, which provides:

SEC. 68. Cutting, Gathering and/or collecting Timber, or Other Forest Products
Without License. Any person who shall cut, gather, collect, remove timber or other
forest products from any forest land, or timber from alienable or disposable public
land, or from private land, without any authority, or possess timber or other forest
products without the legal documents as required under existing forest laws and
regulations, shall be punished with the penalties imposed under Articles 309 and 310
of the Revised Penal Code: Provided, That in the case of partnerships, associations, or
corporations, the officers who ordered the cutting, gathering, collection or possession
shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be
deported without further proceedings on the part of the Commission on Immigration
and Deportation.

The Court shall further order the confiscation in favor of the government of
the timber or any forest products cut, gathered, collected, removed, or
possessed, as well as the machinery, equipment, implements and tools
illegally used in the area where the timber or forest products are found.
Punished then in this section are (1) the cutting, gathering, collection, or
removal of timber or other forest products from the places therein mentioned
without any authority; and (b) possession of timber or other forest products
without the legal documents as required under existing forest laws and
regulations.
Indeed, the word lumber does not appear in Section 68. But conceding ex
gratia that this omission amounts to an exclusion of lumber from the section's
coverage, do the facts averred in the information in the CRIMINAL CASE
validly charge a violation of the said section?
A cursory reading of the information readily leads us to an infallible
conclusion that lumber is not solely its subject matter. It is evident therefrom
that what are alleged to be in the possession of the private respondent,
without the required legal documents, are truckloads of
(1) almaciga and lauan; and
(2) approximately 200,000 bd. ft. of lumber and shorts of various species including
almaciga and supa.

The almaciga and lauan specifically mentioned in no. (1) are not described as
lumber. They cannot refer to the lumber in no. (2) because they are separated
by the words approximately 200,000 bd. ft. with the conjunction and, and not
with the preposition of. They must then be raw forest products or, more
specifically, timbers under Section 3(q) of P.D. No. 705, as amended, which
reads:

SEC. 3. Definitions.

xxx xxx xxx

(q) Forest product means timber, pulpwood, firewood, bark, tree top, resin, gum,
wood, oil, honey, beeswax, nipa, rattan, or other forest growth such as grass, shrub,
and flowering plant, the associated water, fish, game, scenic, historical, recreational
and geological resources in forest lands.

It follows then that lumber is only one of the items covered by the
information. The public and the private respondents obviously
miscomprehended the averments in the information.Accordingly, even
if lumber is not included in Section 68, the other items therein as noted above
fall within the ambit of the said section, and as to them, the information validly
charges an offense.
Our respected brother, Mr. Justice Jose C. Vitug, suggests in his
dissenting opinion that this Court go beyond the four corners of the
information for enlightenment as to whether the information exclusively refers
to lumber. With the aid of the pleadings and the annexes thereto, he arrives at
the conclusion that only lumber has been envisioned in the indictment.
The majority is unable to subscribe to his view. First, his proposition
violates the rule that only the facts alleged in the information vis-a-vis the law
violated must be considered in determining whether an information charges
an offense.
Second, the pleadings and annexes he resorted to are insufficient to justify
his conclusion. On the contrary, the Joint Affidavit of Melencio Jalova, Jr., and
Araman Belleng, which is one of the annexes he referred to, cannot lead one
[30]

to infer that what the team seized was all lumber. Paragraph 8 thereof
expressly states:
8. That when inside the compound, the team found approximately four (4)
truckloads of narra shorts, trimmings and slabs and a negligible amount of
narra lumber, and approximately 200,000 bd. ft. of lumber and shorts of
various species including almaciga and supa which are classified as
prohibited wood species. (Italics supplied)
In the same vein, the dispositive portion of the resolution of the [31]

investigating prosecutor, which served as the basis for the filing of the
information, does not limit itself to lumber; thus:

WHEREFORE, premises considered, it is hereby recommended that an information


be filed against respondent Ri Chuy Po for illegal possession of 200,000 bd. ft. of
lumber consisting of almaciga and supa and for illegal shipment of almaciga and
lauan in violation of Sec. 63 of PD 705 as amended by E.O. 277, series of
1987. (Italics supplied)

The foregoing disquisitions should not, in any manner, be construed as an


affirmance of the respondent Judge's conclusion that lumber is excluded from
the coverage of Section 68 of P.D. No. 705, as amended, and thus possession
thereof without the required legal documents is not a crime. On the contrary,
this Court rules that such possession is penalized in the said section
because lumber is included in the term timber.
The Revised Forestry Code contains no definition of
either timber or lumber. While the former is included in forest products as
defined in paragraph (q) of Section 3, the latter is found in paragraph (aa) of
the same section in the definition of Processing plant; which reads:

(aa) Processing plant is any mechanical set-up, machine or combination of machine


used for the processing of logs and other forest raw materials into lumber, veneer,
plywood, wallboard, block-board, paper board, pulp, paper or other finished wood
products.

This simply means that lumber is a processed log or processed forest raw
material. Clearly, the Code uses the term lumber in its ordinary or common
usage. In the 1993 copyright edition of Webster's Third New International
Dictionary, lumber is defined, inter alia, as timber or logs after being prepared
for the market. Simply put, lumber is a processed log or timber.
[32]

It is settled that in the absence of legislative intent to the contrary, words


and phrases used in a statute should be given their plain, ordinary, and
common usage meaning. And insofar as possession of timber without the
[33]

required legal documents is concerned, Section 68 of P.D. No. 705, as


amended, makes no distinction between raw or processed timber. Neither
should we. Ubi lex non distanguit nec nos distinguere debemus.
Indisputably, respondent Judge Teresita Dizon-Capulong of Branch 172 of
the RTC of Valenzuela, Metro Manila, committed grave abuse of discretion in
granting the motion to quash the information in the CRIMINAL CASE and in
dismissing the said case.

G.R. No. 104988

We find this petition to be without merit. The petitioner has miserably failed
to show that the Court of Appeals committed any reversible error in its
assailed decision of 29 November 1991.
It was duly established that on 1 April 1990, the petitioner's truck with Plate
No. CCK-322 was coming out from the petitioner's lumberyard loaded with
lauan and almaciga lumber of different sizes and dimensions which were not
accompanied with the required invoices and transport documents. The seizure
of such truck and its cargo was a valid exercise of the power vested upon a
forest officer or employee by Section 80 of P.D. No. 705, as amended by P.D.
No. 1775. Then, too, as correctly held by the trial court and the Court of
Appeals in the FIRST CIVIL CASE, the search was conducted on a moving
vehicle. Such a search could be lawfully conducted without a search warrant.
Search of a moving vehicle is one of the five doctrinally accepted
exceptions to the constitutional mandate that no search or seizure shall be
[34]

made except by virtue of a warrant issued by a judge after personally


determining the existence of probable cause. The other exceptions are (1)
search as an incident to a lawful arrest, (2) seizure of evidence in plain view,
(3) customs searches, and (4) consented warrantless search. [35]

We also affirm the rulings of both the trial court and the Court of Appeals
that the search on 4 April 1990 was a continuation of the search on 3 April
1990 done under and by virtue of the search warrant issued on 3 April 1990
by Executive Judge Osorio. Under Section 9, Rule 126 of the Rules of Court,
a search warrant has a lifetime of ten days. Hence, it could be served at any
time within the said period, and if its object or purpose cannot be
accomplished in one day, the same may be continued the following day or
days until completed. Thus, when the search under a warrant on one day was
interrupted, it may be continued under the same warrant the following day,
provided it is still within the ten-day period.
[36]

As to the final plea of the petitioner that the search was illegal because
possession of lumber without the required legal documents is not illegal under
Section 68 of P.D. No. 705, as amended, since lumber is neither specified
therein nor included in the term forest product, the same hardly merits further
discussion in view of our ruling in G.R. No. 106424.
G.R. No. 123784

The allegations and arguments set forth in the petition in this case
palpably fail to show prima facie that a reversible error has been committed by
the Court of Appeals in its challenged decision of 31 July 1995 and resolution
of 6 February 1996 in CA-G.R. SP No. 33778. We must, forthwith, deny it for
utter want of merit. There is no need to require the respondents to comment
on the petition.
The Court of Appeals correctly dismissed the petitioner's appeal from the
judgment of the trial court in the SECOND CIVIL CASE. The petitioner never
disputed the fact that its lumber-dealer's license or permit had been
suspended by Secretary Factoran on 23 April 1990. The suspension was
never lifted, and since the license had only a lifetime of up to 25 September
1990, the petitioner has absolutely no right to possess, sell, or otherwise
dispose of lumber. Accordingly, Secretary Factoran or his authorized
representative had the authority to seize the lumber pursuant to Section 68-A
of P.D. No. 705, as amended, which provides as follows:

Section 68-A. Administrative Authority of the Department Head or his Duly


Authorized Representative to Order Confiscation. In all cases of violations of this
Code or other forest laws, rules and regulations, the Department Head or his duly
authorized representative may order the confiscation of any forest products illegally
cut, gathered, removed, or possessed or abandoned. . . .

The petitioner's insistence that possession or sale of lumber is not


penalized must also fail in view of our disquisition and ruling on the same
issue in G.R. No. 106424. Besides, the issue is totally irrelevant in the
SECOND CIVIL CASE which involves administrative seizure as a
consequence of the violation of the suspension of the petitioner's license as
lumber dealer.
All told then, G.R. No. 104988 and G.R. No. 123784 are nothing more
than rituals to cover up blatant violations of the Revised Forestry Code of the
Philippines (P.D. No. 705), as amended. They are presumably trifling attempts
to block the serious efforts of the DENR to enforce the decree, efforts which
deserve the commendation of the public in light of the urgent need to take firm
and decisive action against despoilers of our forests whose continuous
destruction only ensures to the generations to come, if not the present, an
inheritance of parched earth incapable of sustaining life. The Government
must not tire in its vigilance to protect the environment by prosecuting without
fear or favor any person who dares to violate our laws for the utilization and
protection of our forests.
WHEREFORE, judgment is hereby rendered
1. (a) GRANTING the petition in G.R. No. 106424; (b) SETTING ASIDE and
ANNULLING, for having been rendered with grave abuse of discretion, the
challenged orders of 16 August 1991 and 18 October 1991 of respondent Judge
Teresita Dizon-Capulong, Branch 172, Regional Trial Court of Valenzuela, Metro
Manila, in Criminal Case No. 324-V-91, entitled People of the Philippines vs. Ri
Chuy Po; (c) REINSTATING the information in the said criminal case; and (d)
DIRECTING the respondent Judge on her successor to hear and decide the case
with purposeful dispatch; and
2. DENYING the petitions in G.R. No. 104988 and in G. R. No. 123784 for utter failure
of the petitioner to show that the respondent Court of Appeals committed any
reversible error in the challenged decisions of 29 November 1991 in CA-G.R. SP
No. 25510 in the FIRST CIVIL CASE and of 31 July 1995 in CA-G.R. SP No. 33778
in the SECOND CIVIL CASE.

Costs against the petitioner in each of these three cases.


SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Romero, Bellosillo, Melo, Puno,
Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban, and Torres,
Jr., JJ., concur.

THIRD DIVISION

JOHN ERIC LONEY, G.R. No. 152644


STEVEN PAUL REID and
PEDRO B. HERNANDEZ,
Petitioners, Present:

QUISUMBING, J., Chairperson,


CARPIO,
- versus - CARPIO MORALES, and
TINGA, JJ.
PEOPLE OF THE PHILIPPINES, Promulgated:
Respondent. February 10, 2006

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

CARPIO, J.:

The Case

This is a petition for review[1] of the Decision[2] dated 5 November 2001 and the
Resolution dated 14 March 2002 of the Court of Appeals. The 5 November
2001 Decision affirmed the ruling of the Regional Trial Court, Boac, Marinduque,
Branch 94, in a suit to quash Informations filed against petitioners John Eric
Loney, Steven Paul Reid, and Pedro B. Hernandez (petitioners). The 14 March
2002 Resolution denied petitioners motion for reconsideration.

The Facts

Petitioners John Eric Loney, Steven Paul Reid, and Pedro B. Hernandez are the
President and Chief Executive Officer, Senior Manager, and Resident Manager for
Mining Operations, respectively, of Marcopper Mining Corporation (Marcopper), a
corporation engaged in mining in the province of Marinduque.

Marcopper had been storing tailings[3] from its operations in a pit in Mt. Tapian,
Marinduque. At the base of the pit ran a drainage tunnel leading to the Boac and
Makalupnit rivers. It appears that Marcopper had placed a concrete plug at the
tunnels end. On 24 March 1994, tailings gushed out of or near the tunnels end. In a
few days, the Mt. Tapian pit had discharged millions of tons of tailings into the
Boac and Makalupnit rivers.

In August 1996, the Department of Justice separately charged petitioners in the


Municipal Trial Court of Boac, Marinduque (MTC) with violation of Article 91(B),
[4]
sub-paragraphs 5 and 6 of Presidential Decree No. 1067 or the Water Code of the
Philippines (PD 1067),[5] Section 8[6] of Presidential Decree No. 984 or the National
Pollution Control Decree of 1976 (PD 984),[7] Section 108[8] of Republic Act No.
7942 or the Philippine Mining Act of 1995 (RA 7942),[9] and Article 365[10] of the
Revised Penal Code (RPC) for Reckless Imprudence Resulting in Damage to
Property.[11]
Petitioners moved to quash the Informations on the following grounds: (1) the
Informations were duplicitous as the Department of Justice charged more than one
offense for a single act; (2) petitioners John Eric Loney and Steven Paul Reid were
not yet officers of Marcopper when the incident subject of the Informations took
place; and (3) the Informations contain allegations which constitute legal excuse or
justification.

The Ruling of the MTC

In its Joint Order of 16 January 1997 (Joint Order), the MTC[12] initially deferred
ruling on petitioners motion for lack of indubitable ground for the quashing of the
[I]nformations x x x. The MTC scheduled petitioners arraignment in February
1997. However, on petitioners motion, the MTC issued a Consolidated Order on 28
April 1997(Consolidated Order), granting partial reconsideration to its Joint Order
and quashing the Informations for violation of PD 1067 and PD 984. The MTC
maintained the Informations for violation of RA 7942 and Article 365 of the RPC.
The MTC held:
[T]he 12 Informations have common allegations of pollutants pointing to mine
tailings which were precipitately discharged into the Makulapnit and Boac Rivers
due to breach caused on the Tapian drainage/tunnel due to negligence or failure to
institute adequate measures to prevent pollution and siltation of the Makulapnit
and Boac River systems, the very term and condition required to be undertaken
under the Environmental Compliance Certificate issued on April 1, 1990.

The allegations in the informations point to same set [sic] of evidence required to
prove the single fact of pollution constituting violation of the Water Code and the
Pollution Law which are the same set of evidence necessary to prove the same
single fact of pollution, in proving the elements constituting violation of the
conditions of ECC, issued pursuant to the Philippine Mining Act.In both
instances, the terms and conditions of the Environmental Compliance Certificate
were allegedly violated. In other words, the same set of evidence is required in
proving violations of the three (3) special laws.

After carefully analyzing and weighing the contending arguments of the parties
and after taking into consideration the applicable laws and jurisprudence, the
Court is convinced that as far as the three (3) aforesaid laws are concerned, only
the Information for [v]iolation of Philippine Mining Act should be maintained. In
other words, the Informations for [v]iolation of Anti-Pollution Law (PD 984) and
the Water Code (PD 1067) should be dismissed/quashed because the elements
constituting the aforesaid violations are absorbed by the same elements which
constitute violation of the Philippine Mining Act (RA 7942).

Therefore, x x x Criminal Case[] Nos. 96-44, 96-45 and 96-46 for [v]iolation of
the Water Code; and Criminal Case[] Nos. 96-47, 96-48 and 96-49 for [v]iolation
of the Anti-Pollution Law x x x are hereby DISMISSED or QUASHED and
Criminal Case[] Nos. 96-50, 96-51 and 96-52 for [v]iolation of the Philippine
Mining Act are hereby retained to be tried on the merits.

The Information for [v]iolation of Article 365 of the Revised Penal Code should
also be maintained and heard in a full blown trial because the common accusation
therein is reckless imprudence resulting to [sic] damage to property. It is the
damage to property which the law punishes not the negligent act of polluting the
water system. The prosecution for the [v]iolation of Philippine Mining Act is not
a bar to the prosecution for reckless imprudence resulting to [sic] damage to
property.[13]

The MTC re-scheduled petitioners arraignment on the remaining charges on 28


and 29 May 1997. In the hearing of 28 May 1997, petitioners manifested that they
were willing to be arraigned on the charge for violation of Article 365 of the RPC
but not on the charge for violation of RA 7942 as they intended to appeal the
Consolidated Order in so far as it maintained the Informations for that offense.
After making of record petitioners manifestation, the MTC proceeded with the
arraignment and ordered the entry of not guilty pleas on the charges for violation of
RA 7942 and Article 365 of the RPC.

Petitioners subsequently filed a petition for certiorari with the Regional Trial
Court, Boac, Marinduque, assailing that portion of the Consolidated Order
maintaining the Informations for violation of RA 7942. Petitioners petition was
raffled to Branch 94. For its part, public respondent filed an ordinary appeal with
the same court assailing that portion of the Consolidated Order quashing the
Informations for violation of PD 1067 and PD 984. Public respondents appeal was
raffled to Branch 38. On public respondents motion, Branch 38 ordered public
respondents appeal consolidated with petitioners petition in Branch 94.

The Ruling of Branch 94

In its Resolution[14] of 20 March 1998, Branch 94 granted public respondents


appeal but denied petitioners petition. Branch 94 set aside the Consolidated Order
in so far as it quashed the Informations for violation of PD 1067 and PD 984 and
ordered those charges reinstated. Branch 94 affirmed the Consolidated Order in all
other respects. Branch 94 held:

After a careful perusal of the laws concerned, this court is of the opinion that
there can be no absorption by one offense of the three other offenses, as [the] acts
penalized by these laws are separate and distinct from each other. The elements of
proving each violation are not the same with each other. Concededly, the single
act of dumping mine tailings which resulted in the pollution of the Makulapnit
and Boac rivers was the basis for the information[s] filed against the accused each
charging a distinct offense. But it is also a well-established rule in this jurisdiction
that

A single act may offend against two or more entirely distinct and
unrelated provisions of law, and if one provision requires proof of
an additional fact or element which the other does not, an acquittal
or conviction or a dismissal of the information under one does not
bar prosecution under the other. x x x.

xxxx

[T]he different laws involve cannot absorb one another as the elements of each
crime are different from one another. Each of these laws require [sic] proof of an
additional fact or element which the other does not although they stemmed from
a single act.[15]
Petitioners filed a petition for certiorari with the Court of Appeals alleging that
Branch 94 acted with grave abuse of discretion because (1) the Informations for
violation of PD 1067, PD 984, RA 7942 and the Article 365 of the RPC proceed
from and are based on a single act or incident of polluting the Boac and
Makalupnit rivers thru dumping of mine tailings and (2) the duplicitous nature of
the Informations contravenes the ruling in People v. Relova.[16] Petitioners further
contended that since the acts complained of in the charges for violation of PD
1067, PD 984, and RA 7942 are the very same acts complained of in the charge for
violation of Article 365 of the RPC, the latter absorbs the former. Hence,
petitioners should only be prosecuted for violation of Article 365 of the RPC.[17]

The Ruling of the Court of Appeals

In its Decision of 5 November 2001, the Court of Appeals affirmed Branch 94s
ruling. The appellate court held:

The records of the case disclose that petitioners filed a motion to quash the
aforementioned Informations for being duplicitous in nature. Section 3 of Rule
117 of the Revised Rules of Court specifically provides the grounds upon which
an information may be quashed. x x x

xxxx

[D]uplicity of Informations is not among those included in x x x [Section 3, Rule


117].

xxxx
We now go to petitioners claim that the resolution of the public respondent
contravened the doctrine laid down in People vs. Relova for being violative of
their right against multiple prosecutions.

In the said case, the Supreme Court found the Peoples argument with respect to
the variances in the mens rea of the two offenses being charged to be correct. The
Court, however, decided the case in the context of the second sentence of Article
IV (22) of the 1973 Constitution (now under Section 21 of Article III of the 1987
Constitution), rather than the first sentence of the same section. x x x

xxxx
[T]he doctrine laid down in the Relova case does not squarely apply to the case at
Bench since the Informations filed against the petitioners are for violation of four
separate and distinct laws which are national in character.

xxxx

This Court firmly agrees in the public respondents understanding that the
laws by which the petitioners have been [charged] could not possibly absorb one
another as the elements of each crime are different. Each of these laws require
[sic] proof of an additional fact or element which the other does not, although
they stemmed from a single act. x x x

xxxx

[T]his Court finds that there is not even the slightest indicia of evidence that
would give rise to any suspicion that public respondent acted with grave abuse of
discretion amounting to excess or lack of jurisdiction in reversing the Municipal
Trial Courts quashal of the Informations against the petitioners for violation of
P.D. 1067 and P.D. 984. This Court equally finds no error in the trial courts denial
of the petitioners motion to quash R.A. 7942 and Article 365 of the Revised Penal
Code.[18]

Petitioners sought reconsideration but the Court of Appeals denied their motion in
its Resolution of 14 March 2002.

Petitioners raise the following alleged errors of the Court of Appeals:


I. THE COURT OF APPEALS COMMITTED A R[E]VERSIBLE ERROR IN
MAINTAINING THE CHARGES FOR VIOLATION OF THE PHILIPPINE
MINING ACT (R.A. 7942) AND REINSTATING THE CHARGES FOR
VIOLATION OF THE WATER CODE (P.D. 1067) AND POLLUTION
CONTROL LAW (P.D. 984), CONSIDERING THAT:

A. THE INFORMATIONS FOR VIOLATION OF THE WATER


CODE (P.D. 1067), THE POLLUTION CONTROL LAW (P.D.
984), THE PHILIPPINE MINING ACT (R.A. 7942) AND
ARTICLE 365 OF THE REVISED PENAL CODE PROCEED
FROM AND ARE BASED ON A SINGLE ACT OR INCIDENT
OF POLLUTING THE BOAC
AND MAKULAPNIT RIVERS THRU DUMPING OF MINE
TAILINGS.
B. THE PROSECUTION OF PETITIONERS FOR
DUPLICITOUS AND MULTIPLE CHARGES CONTRAVENES
THE DOCTRINE LAID DOWN IN PEOPLE VS. RELOVA, 148
SCRA 292 [1986] THAT AN ACCUSED SHOULD NOT BE
HARASSED BY MULTIPLE PROSECUTIONS FOR
OFFENSES WHICH THOUGH DIFFERENT FROM ONE
ANOTHER ARE NONETHELESS EACH CONSTITUTED BY
A COMMON SET OR OVERLAPPING SETS OF TECHNICAL
ELEMENTS.
II. THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN
RULING THAT THE ELEMENT OF LACK OF NECESSARY OR ADEQUATE
PRECAUTION, NEGLIGENCE, RECKLESSNESS AND IMPRUDENCE
UNDER ARTICLE 356 [sic] OF THE REVISED PENAL CODE DOES NOT
FALL WITHIN THE AMBIT OF ANY OF THE ELEMENTS OF THE
PERTINENT PROVISIONS OF THE WATER CODE, POLLUTION CONTROL
LAW AND PHILIPPINE MINING ACT CHARGED AGAINST
PETITIONERS[.][19]

The Issues

The petition raises these issues:

(1) Whether all the charges filed against petitioners except one should be
quashed for duplicity of charges and only the charge for Reckless
Imprudence Resulting in Damage to Property should stand; and
(2) Whether Branch 94s ruling, as affirmed by the Court of Appeals,
contravenes People v. Relova.

The Ruling of the Court

The petition has no merit.

No Duplicity of Charges in the Present Case


Duplicity of charges simply means a single complaint or information charges more
than one offense, as Section 13 of Rule 110[20] of the 1985 Rules of Criminal
Procedure clearly states:
Duplicity of offense. A complaint or information must charge but one offense,
except only in those cases in which existing laws prescribe a single punishment for
various offenses.

In short, there is duplicity (or multiplicity) of charges when a single Information


charges more than one offense.[21]

Under Section 3(e), Rule 117[22] of the 1985 Rules of Criminal Procedure,
duplicity of offenses in a single information is a ground to quash the
Information. The Rules prohibit the filing of such Information to avoid confusing
the accused in preparing his defense.[23] Here, however, the prosecution charged
each petitioner with four offenses, with each Information charging only one
offense. Thus, petitioners erroneously invoke duplicity of charges as a ground to
quash the Informations. On this score alone, the petition deserves outright denial.

The Filing of Several Charges is Proper

Petitioners contend that they should be charged with one offense only Reckless
Imprudence Resulting in Damage to Property because (1) all the charges filed
against them proceed from and are based on a single act or incident of polluting the
Boac and Makalupnit rivers thru dumping of mine tailings and (2) the charge for
violation of Article 365 of the RPC absorbs the other charges since the element of
lack of necessary or adequate protection, negligence, recklessness and imprudence
is common among them.

The contention has no merit.


As early as the start of the last century, this Court had ruled that a single act
or incident might offend against two or more entirely distinct and unrelated
provisions of law thus justifying the prosecution of the accused for more than one
offense.[24] The only limit to this rule is the Constitutional prohibition that no
person shall be twice put in jeopardy of punishment for the same offense.
[25]
In People v. Doriquez,[26] we held that two (or more) offenses arising from the
same act are not the same

x x x if one provision [of law] requires proof of an additional fact or element


which the other does not, x x x. Phrased elsewise, where two different laws (or
articles of the same code) define two crimes, prior jeopardy as to one of them is
no obstacle to a prosecution of the other, although both offenses arise from the
same facts, if each crime involves some important act which is not an essential
element of the other.[27] (Emphasis supplied)

Here, double jeopardy is not at issue because not all of its elements are present.
[28]
However, for the limited purpose of controverting petitioners claim that they
should be charged with one offense only, we quote with approval Branch 94s
comparative analysis of PD 1067, PD 984, RA 7942, and Article 365 of the RPC
showing that in each of these laws on which petitioners were charged, there is one
essential element not required of the others, thus:
In P.D. 1067 (Philippines Water Code), the additional element to be established is
the dumping of mine tailings into the Makulapnit River and the entire Boac River
System without prior permit from the authorities concerned. The gravamen of the
offense here is the absence of the proper permit to dump said mine tailings. This
element is not indispensable in the prosecution for violation of PD 984 (Anti-
Pollution Law), [RA] 7942 (Philippine Mining Act) and Art. 365 of the Revised
Penal Code. One can be validly prosecuted for violating the Water Code even in
the absence of actual pollution, or even [if] it has complied with the terms of its
Environmental Compliance Certificate, or further, even [if] it did take the
necessary precautions to prevent damage to property.

In P.D. 984 (Anti-Pollution Law), the additional fact that must be proved is the
existence of actual pollution. The gravamen is the pollution itself. In the absence
of any pollution, the accused must be exonerated under this law although there
was unauthorized dumping of mine tailings or lack of precaution on its part to
prevent damage to property.

In R.A. 7942 (Philippine Mining Act), the additional fact that must be established
is the willful violation and gross neglect on the part of the accused to abide by the
terms and conditions of the Environmental Compliance Certificate, particularly
that the Marcopper should ensure the containment of run-off and silt materials
from reaching the Mogpog and Boac Rivers. If there was no violation or neglect,
and that the accused satisfactorily proved [sic] that Marcopper had done
everything to ensure containment of the run-off and silt materials, they will not be
liable. It does not follow, however, that they cannot be prosecuted under the Water
Code, Anti-Pollution Law and the Revised Penal Code because violation of the
Environmental Compliance Certificate is not an essential element of these laws.

On the other hand, the additional element that must be established in Art. 365 of
the Revised Penal Code is the lack of necessary or adequate precaution,
negligence, recklessness and imprudence on the part of the accused to prevent
damage to property. This element is not required under the previous
laws. Unquestionably, it is different from dumping of mine tailings without permit,
or causing pollution to the Boac river system, much more from violation or neglect
to abide by the terms of the Environmental Compliance Certificate. Moreover, the
offenses punished by special law are mal[a] prohibita in contrast with those
punished by the Revised Penal Code which are mala in se.[29]

Consequently, the filing of the multiple charges against petitioners, although based
on the same incident, is consistent with settled doctrine.

On petitioners claim that the charge for violation of Article 365 of the RPC absorbs
the charges for violation of PD 1067, PD 984, and RA 7942, suffice it to say that
a mala in se felony (such as Reckless Imprudence Resulting in Damage to
Property) cannot absorb mala prohibita crimes (such as those violating PD 1067,
PD 984, and RA 7942). What makes the former a felony is criminal intent (dolo) or
negligence (culpa); what makes the latter crimes are the special laws enacting
them.

People v. Relova not in Point

Petitioners reiterate their contention in the Court of Appeals that their prosecution
contravenes this Courts ruling in People v. Relova. In particular, petitioners cite the
Courts statement in Relova that the law seeks to prevent harassment of the accused
by multiple prosecutions for offenses which though different from one another are
nonetheless each constituted by a common set or overlapping sets of technical
elements.

This contention is also without merit.


The issue in Relova is whether the act of the Batangas Acting City Fiscal in
charging one Manuel Opulencia (Opulencia) with theft of electric power under the
RPC, after the latter had been acquitted of violating a City Ordinance penalizing
the unauthorized installation of electrical wiring, violated Opulencias right against
double jeopardy. We held that it did, not because the offenses punished by those
two laws were the same but because the act giving rise to the charges was punished
by an ordinance and a national statute, thus falling within the proscription against
multiple prosecutions for the same act under the second sentence in Section 22,
Article IV of the 1973 Constitution, now Section 21, Article III of the 1987
Constitution. We held:

The petitioner concludes that:

The unauthorized installation punished by the ordinance


[of Batangas City] is not the same as theft of electricity [under the Revised
Penal Code]; that the second offense is not an attempt to commit the first or
a frustration thereof and that the second offense is not necessarily included in the
offense charged in the first information.

The above argument[ ] made by the petitioner [is] of course correct.


This is clear both from the express terms of the constitutional provision involved
which reads as follows:

No person shall be twice put in jeopardy of punishment for the same


offense. If an act is punished by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another prosecution for the same act. x x x

and from our case law on this point. The basic difficulty with the petitioners
position is that it must be examined, not under the terms of the first sentence
of Article IV (22) of the 1973 Constitution, but rather under the second
sentence of the same section. The first sentence of Article IV (22) sets forth the
general rule: the constitutional protection against double jeopardy is not available
where the second prosecution is for an offense that is different from the offense
charged in the first or prior prosecution, although both the first and second
offenses may be based upon the same act or set of acts. The second sentence of
Article IV (22) embodies an exception to the general proposition: the
constitutional protection, against double jeopardy isavailable although the
prior offense charged under an ordinance be different from the offense
charged subsequently under a national statute such as the Revised Penal
Code, providedthat both offenses spring from the same act or set of acts. x x
x[30] (Italicization in the original; boldfacing supplied)
Thus, Relova is no authority for petitioners claim against multiple prosecutions
based on a single act not only because the question of double jeopardy is not at
issue here, but also because, as the Court of Appeals held, petitioners are being
prosecuted for an act or incident punished by four national statutes and not by an
ordinance and a national statute. In short, petitioners, if ever, fall under the first
sentence of Section 21, Article III which prohibits multiple prosecution for
the same offense, and not, as in Relova, for offenses arising from the same
incident.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 5

November 2001 and the Resolution dated 14 March 2002 of the Court of Appeals.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson
CONCHITA CARPIO MORALES DANTE O. TINGA
Associate Justice Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in


consultation before the case was assigned to the writer of the opinion of the Courts
Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion of
the Courts Division.

ARTEMIO V. PANGANIBAN

Chief Justice

[1]
Under Rule 45 of the 1997 Rules of Civil Procedure.
[2]
Penned by Associate Justice Bernardo P. Abesamis with Associate Justices Ramon A. Barcelona and Perlita J. Tria
Tirona, concurring.
[3]
Mine tailings or mine waste refer to soil and/or rock materials from surface or underground mining operations
with no present economic value to the generator of the same (Department of Environment and Natural Resources
Administrative Order No. 96-40 (1996) (DENR DAO No. 96-40), Section 5[be]). Waste from milling operations
or mill tailings is defined as materials whether solid, liquid or both[,] segregated from the ores during
concentration/milling operations which have no present economic value to the generator of the same (DENR
DAO No. 96-40, Section 5 [au]).
[4]
This provision states: A fine exceeding Three Thousand Pesos (P3,000.00) but not more than Six Thousand Pesos
(P6,000.00) or imprisonment exceeding three (3) years but not more than six (6) years, or both such fine and
imprisonment in the discretion of the Court, shall be imposed on any person who commits any of the following
acts:
xxxx
5. Constructing, without prior permission of the government agency concerned, works that produce
dangerous or noxious substances, or performing acts that result in the introduction of sewage, industrial
waste, or any substance that pollutes a source of water supply.
6. Dumping mine tailings and sediments into rivers or waterways without permission.
[5]
The Informations charging this offense were docketed as Criminal Case Nos. 96-44, 96-45, and 96-46. Except for
the names of the accused and their respective designations at Marcopper, the Informations uniformly alleged
(rollo, pp. 54-62):
That on or about March 24, 1996, and for sometime prior and subsequent thereto, in
the municipality of Boac, province of Marinduque, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, x x x, did then and there willfully,
unlawfully and feloniously dispose, discharge or introduce industrial waste, particularly mine
tailings, without permission into the Makulapnit River and the entire Boac River system which is
a source of water supply and/or dump or cause, permit, suffer to be dumped, without permission,
mine tailings or other waste matters discharged due to breach caused on its Tapian drainage
pit/tunnel, thus causing pollution and siltation in the Makulapnit River and the entire Boac River
system which became a dead river, resulting to damage and/or destruction of living organisms,
like fish or other aquatic life in the vicinity, and to health and property in the same vicinity.
[6]
This provision states: Prohibitions. No person shall throw, run, drain, or otherwise dispose into any of the water,
air and/or land resources of the Philippines, or cause, permit, suffer to be thrown, run, drain, allow to seep or
otherwise dispose thereto any organic or inorganic matter or any substance in gaseous or liquid form that shall
cause pollution thereof.
No person shall perform any of the following activities without first securing a permit from the [National
Pollution Control] Commission for the discharge of all industrial wastes and other wastes which could cause
pollution:
(1) the construction, installation, modification or operation of any sewage works or any extension or
addition thereto;
(2) the increase in volume or strength of any wastes in excess of the permissive discharge specified under
any existing permit;
(3) the construction, installation or operation of any industrial or commercial establishments or any
extension or modification thereof or addition thereto, the operation of which would cause an increase in the
discharge of waste directly into the water, air and/or land resources of the Philippines or would otherwise alter
their physical, chemical or biological properties in any manner not already lawfully authorized.
[7]
The Informations charging this offense were docketed as Criminal Case Nos. 96-47, 96-48, and 96-49. Except for
the names of the accused and their respective designations at Marcopper, the Informations uniformly alleged
(rollo, pp. 63-71):
That on or about March 24, 1996, and for sometime prior and subsequent thereto, in the
municipality of Boac, province of Marinduque, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, x x x, did then and there willfully, unlawfully and
feloniously drain or otherwise dispose/discharge into the Makulapnit River and the entire Boac
River system and/or cause, permit, suffer to be drained or allow to seep into such river/waterway,
mine tailings or other waste matters discharged due to breach caused on its Tapian drainage
pit/tunnel for his failure to institute adequate measures as a managing head thereof, thus causing
pollution of such rivers/waterways due to exceedances [sic] in the criterion level for cadmium,
copper, and lead, as found by the Pollution Adjudication Board, which rendered such water
resources harmful, detrimental or injurious to public health, safety or welfare or which adversely
affected their utilization for domestic, agricultural, and/or recreational purposes.
[8]
This provision states: Violation of the Terms and Conditions of the [E]nvironmental Compliance Certificate. Any
person who willfully violates or grossly neglects to abide by the terms and conditions of the environmental
compliance certificate issued to said person and which causes environmental damage through pollution shall
suffer the penalty of imprisonment of six (6) months to six (6) years or a fine of Fifty thousand pesos
(P50,000.00) to Two hundred thousand pesos (P200,000.00), or both at the discretion of the court.
[9]
The Informations charging this offense were docketed as Criminal Case Nos. 96-50, 96-51, and 96-52. Except for
the names of the accused and their respective designations at Marcopper, the Informations uniformly alleged
(rollo, pp. 72-80):
That on or about March 24, 1996, and for sometime prior and subsequent thereto, in the
municipality of Boac, province of Marinduque, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, x x x, did then and there willfully, unlawfully and
feloniously drain or otherwise dispose/discharge into the Makulapnit River and the entire Boac
River system and/or cause, permit, suffer to be drained or allow to seep into such river system,
mine tailings or other waste matters discharged due to breach caused on its Tapian drainage tunnel
for his failure to institute adequate measures, thus causing pollution and siltation in the entire
Boac River System thus, willfully violating or grossly neglecting to abide by the terms and
conditions of the Environmental Compliance Certificate (ECC) issued to [Marcopper Mining
C]orporation x x x, particularly that the Marcopper Mining Corporation should ensure the
containment of run-off and silt materials from reaching the Magpog and Boac Rivers, resulting to
damage and/or destruction of living organisms, like fish and other aquatic life in the vicinity, and
to health and property in the same vicinity.
[10]
This provision states, in part: Imprudence and negligence. Any person who, by reckless imprudence,
shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty
of arresto mayor in its maximum period to prision correccional in its medium period; if it would have
constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be
imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum period shall
be imposed.
xxxx
When the execution of the act covered by this article shall have only resulted in damage to the property of
another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to
three times such value, but which shall in no case be less than twenty-five pesos.
xxxx
Reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which
material damage results by reason of inexcusable lack of precaution on the part of the person performing or
failing to perform such act, taking into consideration his employment or occupation, degree of intelligence,
physical condition and other circumstances regarding persons, time and place.
[11]
The Informations under this charge were docketed as Criminal Case Nos. 96-53, 96-54, and 96-55. Except for the
names of the accused and their respective designations at Marcopper, the Informations uniformly alleged (rollo,
pp. 81-91):
That on or about March 24, 1996, and for sometime prior and subsequent thereto, in the
municipality of Boac, province of Marinduque, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, x x x, did then and there negligently, imprudently,
unlawfully and feloniously drain or otherwise dispose/discharge into the Makulapnit River or
Boac River system and/or cause, permit, suffer to be drained or allow to seep into such river
system/waterway, its mine tailings due to breach caused on the Tapian drainage pit/tunnel of the
[Marcopper Mining C]orporation so managed and operated by said accused, in a negligent,
reckless and imprudent manner, without due regard and in gross violation of the conditions set
forth in the Environmental Compliance Certificate issued by the Environmental Management
Bureau to the said corporation on April 6, 1996, and the accused, x x x, did not take the necessary
or adequate precaution to prevent damage to property thus causing by such carelessness and
imprudence said corporation operated by him to discharge mine tailings into the Makulapnit River
at the rate of 5 to 10 cubic meters per second then resulting to damage and/or destruction of living
organisms, like fish or other aquatic life in the said river system and which also affected
agricultural products, the rehabilitation and restoration of which will cost the government the
approximate sum of not less than P50,000,000.00.

[12]
Presided by Judge Celso De Jesus Zoleta.
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 158182 June 12, 2008

SESINANDO MERIDA, petitioner,


vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CARPIO, J.:

The Case

This is a petition for review1 of the Decision2 dated 28 June 2002 and the Resolution dated 14 May
2003 of the Court of Appeals. The 28 June 2002 Decision affirmed the conviction of petitioner
Sesinando Merida (petitioner) for violation of Section 68, 3 Presidential Decree No. 705 (PD 705),4 as
amended by Executive Order No. 277. The Resolution dated 14 May 2003 denied admission of
petitioner's motion for reconsideration.5

The Facts

Petitioner was charged in the Regional Trial Court of Romblon, Romblon, Branch 81 (trial court) with
violation of Section 68 of PD 705, as amended, for "cut[ting], gather[ing], collect[ing] and remov[ing]"
a lone narra tree inside a private land in Mayod, Ipil, Magdiwang, Romblon (Mayod Property) over
which private complainant Oscar M. Tansiongco (Tansiongco) claims ownership. 6

The prosecution evidence showed that on 23 December 1998, Tansiongco learned that petitioner cut
a narra tree in the Mayod Property. Tansiongco reported the matter to Florencio Royo (Royo),
the punong barangay of Ipil. On 24 December 1998,7 Royo summoned petitioner to a meeting with
Tansiongco. When confronted during the meeting about the felled narra tree, petitioner admitted
cutting the tree but claimed that he did so with the permission of one Vicar Calix (Calix) who,
according to petitioner, bought the Mayod Property from Tansiongco in October 1987 under a pacto
de retro sale. Petitioner showed to Royo Calix's written authorization signed by Calix's wife. 8

On 11 January 1999, Tansiongco reported the tree-cutting to the Department of Environment and
Natural Resources (DENR) forester Thelmo S. Hernandez (Hernandez) in Sibuyan, Romblon. When
Hernandez confronted petitioner about the felled tree, petitioner reiterated his earlier claim to Royo
that he cut the tree with Calix's permission. Hernandez ordered petitioner not to convert the felled
tree trunk into lumber.

On 26 January 1999, Tansiongco informed Hernandez that petitioner had converted the narra trunk
into lumber. Hernandez, with other DENR employees and enforcement officers, went to the Mayod
Property and saw that the narra tree had been cut into six smaller pieces of lumber. Hernandez took
custody of the lumber,9 deposited them for safekeeping with Royo, and issued an apprehension
receipt to petitioner. A larger portion of the felled tree remained at the Mayod Property. The DENR
subsequently conducted an investigation on the matter.10
Tansiongco filed a complaint with the Office of the Provincial Prosecutor of Romblon (Provincial
Prosecutor) charging petitioner with violation of Section 68 of PD 705, as amended. During the
preliminary investigation, petitioner submitted a counter-affidavit reiterating his claim that he cut the
narra tree with Calix's permission. The Provincial Prosecutor 11 found probable cause to indict
petitioner and filed the Information with the trial court (docketed as Criminal Case No. 2207).

During the trial, the prosecution presented six witnesses including Tansiongco, Royo, and
Hernandez who testified on the events leading to the discovery of and investigation on the tree-
cutting. Petitioner testified as the lone defense witness and claimed, for the first time, that he had no
part in the tree-cutting.

The Ruling of the Trial Court

In its Decision dated 24 November 2000, the trial court found petitioner guilty as charged, sentenced
him to fourteen (14) years, eight (8) months and one (1) day to twenty (20) years of reclusion
temporal and ordered the seizedlumber forfeited in Tansiongco's favor.12 The trial court dismissed
petitioner's defense of denial in view of his repeated extrajudicial admissions that he cut the narra
tree in the Mayod Property with Calix's permission. With this finding and petitioner's lack of DENR
permit to cut the tree, the trial court held petitioner liable for violation of Section 68 of PD 705, as
amended.

Petitioner appealed to the Court of Appeals reiterating his defense of denial. Petitioner also
contended that (1) the trial court did not acquire jurisdiction over the case because it was based on a
complaint filed by Tansiongco and not by a forest officer as provided under Section 80 of PD 705 and
(2) the penalty imposed by the trial court is excessive.

The Ruling of the Court of Appeals

In its Decision dated 28 June 2002, the Court of Appeals affirmed the trial court's ruling but ordered
the seized lumber confiscated in the government's favor.13 The Court of Appeals sustained the trial
court's finding that petitioner is bound by his extrajudicial admissions of cutting the narra tree in the
Mayod Property without any DENR permit. The Court of Appeals also found nothing irregular in the
filing of the complaint by Tansiongco instead of a DENR forest officer considering that the case
underwent preliminary investigation by the proper officer who filed the Information with the trial court.

On the imposable penalty, the Court of Appeals, in the dispositive portion of its ruling, sentenced
petitioner to 14 years, 8 months and 1 day to 17 years of reclusion temporal. However, in the body of
its ruling, the Court of Appeals held that "the penalty to be imposed on [petitioner] should be (14)
years, eight (8) months and one (1) day to twenty (20) years of reclusion temporal,"14 the same
penalty the trial court imposed.

Petitioner sought reconsideration but the Court of Appeals, in its Resolution dated 14 May 2003, did
not admit his motion for having been filed late.15

Hence, this petition. Petitioner raises the following issues:

I. WHETHER x x x SECTION 68 OF P.D. 705 AS AMENDED PROHIBITING THE CUTTING,


GATHERING, COLLECTING AND REMOVING TIMBER OR OTHER FOREST PRODUCTS
FROM ANY FOREST LAND APPLIES TO PETITIONER.
II. WHETHER x x x POSSESSION OF THE NARRA TREE CUT IN PRIVATE LAND
CONTESTED BY VICAR CALIX AND PRIVATE-COMPLAINANT OSCAR TANSIONGCO IS
COVERED BY SECTION 80 OF P.D. 705 AS AMENDED.

III. WHETHER PRIVATE-COMPLAINANT CAN INITIATE THE CHARGE EVEN WITHOUT


THE STANDING AUTHORITY COMING FROM THE INVESTIGATING FOREST OFFICER
OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AS
MANDATED BY SECTION 80 OF P.D. 705 AS AMENDED.

[IV.] WHETHER x x x THE TRIAL COURT ERRED IN TAKING COGNIZANCE OF THE


CASE FILED BY PRIVATE-COMPLAINANT BECAUSE IT WAS NOT THE INVESTIGATING
OFFICER AS REQUIRED BY SECTION 80 OF P.D. 705 AS AMENDED WHO MUST BE
THE ONE TO INSTITUTE THE FILING OF THE SAME.16

In its Comment to the petition, the Office of the Solicitor General (OSG) countered that (1) the trial
court acquired jurisdiction over the case even though Tansiongco, and not a DENR forest officer,
filed the complaint against petitioner and (2) petitioner is liable for violation of Section 68 of PD 705,
as amended.

The Issues

The petition raises the following issues:17

1) Whether the trial court acquired jurisdiction over Criminal Case No. 2207 even though it
was based on a complaint filed by Tansiongco and not by a DENR forest officer; and

2) Whether petitioner is liable for violation of Section 68 of PD 705, as amended.

The Ruling of the Court

The petition has no merit.

The Trial Court Acquired Jurisdiction Over


Criminal Case No. 2207

We sustain the OSG's claim that the trial court acquired jurisdiction over Criminal Case No. 2207.
The Revised Rules of Criminal Procedure (Revised Rules) list the cases which must be initiated by a
complaint filed by specified individuals,18 non-compliance of which ousts the trial court of jurisdiction
from trying such cases.19 However, these cases concern only defamation and other crimes against
chastity20 and not to cases concerning Section 68 of PD 705, as amended. Further, Section 80 of PD
705 does not prohibit an interested person from filing a complaint before any qualified officer for
violation of Section 68 of PD 705, as amended. Section 80 of PD 705 provides in relevant parts:

SECTION 80. Arrest; Institution of criminal actions. - x x x x

Reports and complaints regarding the commission of any of the offenses defined in
this Chapter, not committed in the presence of any forest officer or employee, or any of the
deputized officers or officials, shall immediately be investigated by the forest
officer assigned in the area where the offense was allegedly committed, who shall
thereupon receive the evidence supporting the report or complaint.
If there is prima facie evidence to support the complaint or report, the investigating
forest officer shall file the necessary complaint with the appropriate official authorized
by law to conduct a preliminary investigation of criminal cases and file an information
in Court. (Emphasis supplied)

We held in People v. CFI of Quezon21 that the phrase "reports and complaints" in Section 80 refers to
"reports and complaints as might be brought to the forest officer assigned to the area by other
forest officers or employees of the Bureau of Forest Development or any of the deputized
officers or officials, for violations of forest laws not committed in their presence."22

Here, it was not "forest officers or employees of the Bureau of Forest Development or any of the
deputized officers or officials" who reported to Hernandez the tree-cutting in the Mayod Property but
Tansiongco, a private citizen who claims ownership over the Mayod Property. Thus, Hernandez
cannot be faulted for not conducting an investigation to determine "if there is prima facie evidence to
support the complaint or report."23 At any rate, Tansiongco was not precluded, either under Section
80 of PD 705 or the Revised Rules, from filing a complaint before the Provincial Prosecutor for
petitioner's alleged violation of Section 68 of PD 705, as amended. For its part, the trial court
correctly took cognizance of Criminal Case No. 2207 as the case falls within its exclusive original
jurisdiction.24

Petitioner is Liable for Cutting Timber in Private


Property Without Permit

Section 68, as amended, one of the 12 acts25 penalized under PD 705, provides:

SECTION 68. Cutting, Gathering and/or Collecting Timber, or Other Forest Products Without
License. - Any person who shall cut, gather, collect, remove timber or other forest products
from any forest land, or timber from alienable or disposable public land, or from private
land, without any authority, or possess timber or other forest products without the legal
documents as required under existing forest laws and regulations, shall be punished with the
penalties imposed under Articles 309 and 310 of the Revised Penal Code: Provided, That in
the case of partnerships, associations, or corporations, the officers who ordered the cutting,
gathering, collection or possession shall be liable, and if such officers are aliens, they shall,
in addition to the penalty, be deported without further proceedings on the part of the
Commission on Immigration and Deportation.

The court shall further order the confiscation in favor of the government of the timber or any
forest products cut, gathered, collected, removed, or possessed as well as the machinery,
equipment, implements and tools illegally used in the area where the timber or forest
products are found. (Emphasis supplied)

Section 68 penalizes three categories of acts: (1) the cutting, gathering, collecting, or removing of
timber or other forest products from any forest land without any authority; (2) the cutting, gathering,
collecting, or removing of timber from alienable or disposable public land, or from private land
without any authority;26 and (3) the possession of timber or other forest products without the legal
documents as required under existing forest laws and regulations.27 Petitioner stands charged of
having "cut, gathered, collected and removed timber or other forest products from a private
land28 without x x x the necessary permit x x x " thus his liablity, if ever, should be limited only for
"cut[ting], gather[ing], collect[ing] and remov[ing] timber," under the second category. Further, the
prosecution evidence showed that petitioner did not perform any acts of "gathering, collecting, or
removing" but only the act of "cutting" a lone narra tree. Hence, this case hinges on the question of
whether petitioner "cut x x xtimber" in the Mayod Property without a DENR permit.29
We answer in the affirmative and thus affirm the lower courts' rulings.

On the question of whether petitioner cut a narra tree in the Mayod Property without a DENR permit,
petitioner adopted conflicting positions. Before his trial, petitioner consistently represented to the
authorities that he cut a narra tree in the Mayod Property and that he did so only with Calix's
permission. However, when he testified, petitioner denied cutting the tree in question. We sustain the
lower courts' rulings that petitioner's extrajudicial admissions bind him. 30 Petitioner does not explain
why Royo and Hernandez, public officials who testified under oath in their official capacities, would
lie on the stand to implicate petitioner in a serious criminal offense, not to mention that the acts of
these public officers enjoy the presumption of regularity. Further, petitioner does not deny presenting
Calix's authorization to Royo and Hernandez as his basis for cutting the narra tree in the Mayod
Property. Petitioner has no use of Calix's authorization if, as he claimed during the trial, he did not
cut any tree in the Mayod Property.

We further hold that the lone narre tree petitioner cut from the Mayod Property constitutes "timber"
under Section 68 of PD 705, as amended. PD 705 does not define "timber," only "forest product"
(which circuitously includes "timber.")31 Does the narra tree in question constitute "timber" under
Section 68? The closest this Court came to defining the term "timber" in Section 68 was to provide
that "timber," includes "lumber" or "processed log."32 In other jurisdictions, timber is determined by
compliance with specified dimensions33 or certain "stand age" or "rotation age."34 In Mustang Lumber,
Inc. v. Court of Appeals,35 this Court was faced with a similar task of having to define a term in
Section 68 of PD 705 - "lumber" - to determine whether possession of lumber is punishable under
that provision. In ruling in the affirmative, we held that "lumber" should be taken in its ordinary or
common usage meaning to refer to "processed log or timber," thus:

The Revised Forestry Code contains no definition of either timber or lumber. While the
former is included in forest products as defined in paragraph (q) of Section 3, the latter is
found in paragraph (aa) of the same section in the definition of "Processing plant," which
reads:

(aa) Processing plant is any mechanical set-up, machine or combination of machine


used for the processing of logs and other forest raw materials into lumber, veneer,
plywood, wallboard, blackboard, paper board, pulp, paper or other finished wood
products.

This simply means that lumber is a processed log or processed forest raw material. Clearly,
the Code uses the term lumber in its ordinary or common usage. In the 1993 copyright
edition of Webster's Third New International Dictionary, lumber is defined, inter alia, as
"timber or logs after being prepared for the market." Simply put, lumber is a processed log or
timber.

It is settled that in the absence of legislative intent to the contrary, words and phrases
used in a statute should be given their plain, ordinary, and common usage meaning.
And in so far as possession of timber without the required legal documents is concerned,
Section 68 of PD No. 705, as amended, makes no distinction between raw and procesed
timber. Neither should we.36 x x x x (Italicization in the original; boldfacing supplied)

We see no reason why, as in Mustang, the term "timber" under Section 68 cannot be taken in its
common acceptation as referring to "wood used for or suitable for building or for carpentry or
joinery."37 Indeed, tree saplings or tiny tree stems that are too small for use as posts, panelling,
beams, tables, or chairs cannot be considered timber.38
Here, petitioner was charged with having felled a narra tree and converted the same into "several
pieces of sawn lumber, about three (3) pcs. 2x16x6 and three (3) pcs. 2x18x7 x x x consisting of 111
board feet x x x." These measurements were indicated in the apprehension receipt Hernandez
issued to petitioner on 26 January 1999 which the prosecution introduced in evidence. 39 Further,
Hernandez testified that the larger portion of the felled log left in the Mayod Property "measured 76
something centimeters [at the big end] while the smaller end measured 65 centimeters and the
length was 2.8 meters."40 Undoubtedly, the narra tree petitioner felled and converted to lumber was
"timber" fit "for building or for carpentry or joinery" and thus falls under the ambit of Section 68 of PD
705, as amended.

The Penalty Imposable on Petitioner

Violation of Section 68 of PD 705, as amended, is punishable as Qualified Theft under Article 310 in
relation to Article 309 of the Revised Penal Code (RPC), thus:

Art. 310. Qualified theft. - The crime of qualified theft shall be punished by the penalties next
higher by two degrees than those respectively specified in the next preceding article x x x.

Art. 309. Penalties. - Any person guilty of theft shall be punished by:

1. The penalty of prisin mayor in its minimum and medium periods, if the value of
the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if
the value of the thing stolen exceeds the latter amount, the penalty shall be the
maximum period of the one prescribed in this paragraph, and one year for each
additional ten thousand pesos, but the total of the penalty which may be imposed
shall not exceed twenty years. In such cases, and in connection with the accessory
penalties which may be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prisin mayor or reclusin temporal, as the case
may be.

2. The penalty of prisin correccional in its medium and maximum periods, if the
value of the thing stolen is more than 6,000 pesos but does not exceed 12,000
pesos.

3. The penalty of prisin correccional in its minimum and medium periods, if the
value of the property stolen is more than 200 pesos but does not exceed 6,000
pesos.

4. Arresto mayor in its medium period to prisin correccional in its minimum period, if
the value of the property stolen is over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed
50 pesos.

6. Arresto mayor in its minimum and medium periods, if such value does not exceed
5 pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under
the circumstances enumerated in paragraph 3 of the next preceding article and the
value of the thing stolen does not exceed 5 pesos. If such value exceeds said
amount, the provisions of any of the five preceding subdivisions shall be made
applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the
value of the thing stolen is not over 5 pesos, and the offender shall have acted under
the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support
of himself or his family.

The Information filed against petitioner alleged that the six pieces of lumber measuring 111 board
feet were valued at P3,330. However, if the value of the log left at the Mayod Property is included,
the amount increases to P20,930.40. To prove this allegation, the prosecution relied on Hernandez's
testimony that these amounts, as stated in the apprehension receipt he issued, are his "estimates"
based on "prevailing local price."41

This evidence does not suffice. To prove the amount of the property taken for fixing the penalty
imposable against the accused under Article 309 of the RPC, the prosecution must present more
than a mere uncorroborated "estimate" of such fact.42 In the absence of independent and reliable
corroboration of such estimate, courts may either apply the minimum penalty under Article 309 or fix
the value of the property taken based on the attendant circumstances of the case. 43 In People v.
Dator44 where, as here, the accused was charged with violation of Section 68 of PD 705, as
amended, for possession of lumber without permit, the prosecution's evidence for the lumber's value
consisted of an estimate made by the apprehending authorities whose apparent lack of
corroboration was compounded by the fact that the transmittal letter for the estimate was not
presented in evidence. Accordingly, we imposed on the accused the minimum penalty under Article
309(6)45 of the RPC.46

Applying Dator in relation to Article 310 of the RPC and taking into account the Indeterminate
Sentence Law, we find it proper to impose on petitioner, under the circumstances obtaining here, the
penalty of four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years, four (4)
months and twenty-one (21) days of prision correcional, as maximum.

WHEREFORE, we AFFIRM the Decision dated 28 June 2002 and the Resolution dated 14 May
2003 of the Court of Appeals with the modification that petitioner Sesinando Merida is sentenced to
four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years, four (4) months
and twenty-one (21) days of prision correcional, as maximum.

SO ORDERED.

Puno, C.J., Chairperson, Corona, Azcuna, Leonardo-de Castro, JJ., concur.

Footnotes

1
Under Rule 45 of the 1997 Rules of Civil Procedure.

2
Penned by Associate Justice Eliezer R. De Los Santos with Associate Justices Cancio C.
Garcia (a retired member of this Court) and Marina L. Buzon, concurring.
3
Re-numbered as Section 77 under Section 7, Republic Act No. 7161.

4
The Revised Forestry Code.

5
Filed by petitioner's new counsel, Atty. Marcelino P. Arias.

6
The Information alleged (CA rollo, p. 10):

That on or about the 23rd day of December 1998, in barangay Ipil, municipality of
Magdiwang, province of Romblon, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, with intent to gain, did then and there willfully,
unlawfully, feloniously cut, gather, collect, remove and/or caused to be cut, gathered
and removed one (1) narra tree [from] the private land owned by OSCAR M.
TANSIONGCO and converted the same into several pieces of sawn lumber, about
three (3) pcs. 2x16x6 and three (3) pcs. 2x18x7 narra sawn lumber were confiscated
by the elements of the DENR personnel consisting of 111 board feet, valued in the
sum of P3,330.00, Philippine currency, including the remaining felled narra tree
showing the total amount of P20,930.40 due to the government, without having first
secured and obtained the necessary permit or license and/or legal supporting
documents from the proper authorities.

7
Other parts of the records place this date on 26 December 1998.

8
Imelda Muros.

9
Valued at P3,330.00. If a larger part of the narra tree, left at the Mayod Property, is included
in the valuation, the total amount is P20,930.40. The Information filed against petitioner
alleged the higher amount.

10
The records do not contain the results of the investigation.

11
Senior State Prosecutor-OIC PPO Francisco F. Benedicto, Jr.

12
The dispositive portion of the ruling provides (rollo, p. 31):

WHEREFORE, this Court finds the accused SESINANDO MERIDA GUILTY beyond
reasonable doubt of the crime charged in the aforementioned Information, dated
January 28, 2000, and hereby sentences him to an indeterminate sentence of from
fourteen (14) years, eight (8) months and one (1) day to twenty (20) years of
reclusion temporal, and to pay the costs.

13
The dispositive portion of the ruling provides (id. at 51):

WHEREFORE, premises considered, the 24 November 2000 trial court decision is


AFFIRMED with MODIFICATION. Defendant-appellant is sentenced to an
indeterminate penalty of 14 years, 8 months and 1 day of reclusion temporal as
minimum to 17 years of reclusion temporal as maximum. The forest products derived
from the narra tree, including the 6 pieces of lumber, are confiscated in favor of the
government.

14
Id. at 51.
15
The Court of Appeals entered judgment on 27 August 2002.

16
Rollo, p. 14.

17
The OSG does not claim that this Court is precluded from reviewing the Court of Appeals'
rulings for having attained finality. At any rate, the Court resolved to give due course to the
petition in the interest of justice taking into account the nature of the case and the issues
raised for resolution.

18
Section 5, Rule 110.

19
See People v. Mandia, 60 Phil. 372 (1934); People v. Trinidad, 58 Phil. 163 (1933).

20
Adultery, Concubinage, Seduction, Abduction, and Acts of Lasciviousness.

21
G.R. No. 46772, 13 February 1992, 206 SCRA 187.

22
Id. at 194.

It cannot be said, however, that Hernandez failed to act on Tansiongco's report as


23

Hernandez conducted field investigation, oversaw the confiscation of the lumber, and took
part in the subsequent DENR investigation.

24
Under Section 20 in relation to Section 32(2) of Batas Pambansa Blg. 129 as amended by
Republic Act No. 7691, Regional Trial Courts are vested with exclusive original jurisdiction
over offenses punishable with imprisonment exceeding six years. Here, the offense for which
petitioner was charged is punishable by reclusion temporal in its medium and maximum
periods (that is, 14 years, 8 months and 1 day to 20 years) and thus falls under the RTC
Romblon's exclusive original jurisdiction.

25
The other acts penalized under PD 705, as amended by Presidential Decree No. 1559 and
re-numbered by RA 7161, are: cutting, gathering and/or collecting timber or other products
without license (Section 77); unlawful occupation or destruction of forest lands (Section 78);
pasturing livestock (Section 79); illegal occupation of national parks system and recreation
areas and vandalism therein (Section 80); destruction of wildlife resources (Section 81);
survey by unauthorized person (Section 82); misclassification and survey by government
official or employee (Section 83); tax declaration on real property (Section 84); coercion and
influence (Section 85); unlawful possession of implements and devices used by forest
officers (Section 86); payment, collection and remittance of forest charges (Section 87); and
sale of wood products (Section 88).

26
Thus, there is no merit in petitioner's claim that Section 68 of PD 705 does not penalize the
cutting of timber in private land.

27
In Mustang Lumber, Inc. v. Court of Appeals, (G.R. No. 104988, 18 June 1996, 257 SCRA
430), the acts falling under the first and second groups were lumped together. The elements
for the criminal acts under the first and second groups are: (1) that the accused cut,
gathered, collected, or removed timber of other forest products; (2) that the timber or other
forest products cut, gathered, collected, or removed belong to the government or to any
private individual; and (3) that the cutting, gathering, collecting, or removing was without
authority under a license agreement, lease, license, or permit granted by the state (People v.
CFI of Quezon, G.R. No. 46772, 13 February 1992, 206 SCRA 187).

28
It cannot be determined from the records if the Mayod Property is registered.

29
Under DENR Administrative Order No. 2000-21, dated 28 February 2000, private land
owners are required to obtain a Special Private Land Timber Permit (SPLTP) from the DENR
to cut, gather and utilize premium hardwood species, whether planted or naturally-grown.

Section 26, Rule 130 of the Rules of Court provides: "The act, declaration or omission of a
30

party as to a relevant fact may be given in evidence against him."

31
Section 3(q), PD 705 provides: "Forest product means timber, pulpwood, firewood, bark,
tree top, resin, gum, wood, oil, honey, beeswax, nipa, rattan, or other forest growth such as
grass, shrub, and flowering plant, the associated water, fish, game, scenic, historical,
recreational and geologic resources in forest lands." (Emphasis supplied)

Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June 1996, 257 SCRA
32

430.

33
In the Pacific and Northwestern Region (Region 6) of the United States Forest Service,
timber utilization limits are set as follows: length - 8 feet; diameter (breast-height) - 9 inches;
and top diameter - 4 inches (see A Review of the Forest Practices Code of British Columbia
and Fourteen other Jurisdictions Background Report - 1995 at
http://www.for.gov.bc.ca/tasb/legsregs/westland/report/2-3.htm [British Columbia Report]).

In the Baden-Wurttemberg State of the Federal Republic of Germany, the "stand ages" are:
34

50 years for coniferous stands and 70 years for deciduous stands (Section 16 of the Forest
Law). In Sweden, the following are the minimum rotation age: conifer stands - 45 years to
100 years (depending on the quality of the site); hardwood stands - 35 years; and oak and
beech trees - 100 years (see British Columbia Report).

35
Supra.

36
Supra at 448.

37
Webster's Third New International Dictionary (1996 ed.).

38
Wood pulps from timber can also be used for paper production.

39
Exh. "E."

40
RTC Decision, p. 4; Rollo, p. 25.

41
CA Decision, p. 8; Rollo, p. 42.

42
Lucas v. Court of Appeals, 438 Phil. 530 (2002). See also People v. Elizaga, 86 Phil. 364
(1950).

43
People v. Dator, 398 Phil. 109 (2000). The Court deems it improper to take judicial notice
of the selling price of narra at the time of the commission of the offense in this case. Such
evidence would both be unreliable and inconclusive considering the lack of independent and
competent source of such information.

44
Supra.

45
Arresto mayor in its minimum and medium periods.

46
The Court also took into account the following circumstances: (1) the accused, a janitor, cut
the pieces of soft lumber from his mother's landholding for use in renovating his house and
(2) the accused had no prior record for violation of PD 705. Here, petitioner also appears to
have no record for violation of PD 705.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

METROPOLITAN MANILA G.R. Nos. 171947-48


DEVELOPMENT AUTHORITY,
DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, Present:
DEPARTMENT OF EDUCATION,
CULTURE AND SPORTS,[1] PUNO, C.J.,
DEPARTMENT OF HEALTH, QUISUMBING,
DEPARTMENT OF AGRICULTURE, YNARES-SANTIAGO,
DEPARTMENT OF PUBLIC CARPIO,
WORKS AND HIGHWAYS, AUSTRIA-MARTINEZ,
DEPARTMENT OF BUDGET AND CORONA,
MANAGEMENT, PHILIPPINE CARPIO MORALES,
COAST GUARD, PHILIPPINE AZCUNA,
NATIONAL POLICE MARITIME TINGA,
GROUP, and DEPARTMENT OF CHICO-NAZARIO,
THE INTERIOR AND LOCAL VELASCO, JR.,
GOVERNMENT, NACHURA,
Petitioners, REYES,
LEONARDO-DE CASTRO, and
- versus - BRION, JJ.
CONCERNED RESIDENTS OF
MANILA BAY, represented and
joined by DIVINA V. ILAS,
SABINIANO ALBARRACIN,
MANUEL SANTOS, JR., DINAH
DELA PEA, PAUL DENNIS
QUINTERO, MA. VICTORIA
LLENOS, DONNA CALOZA,
FATIMA QUITAIN, VENICE
SEGARRA, FRITZIE TANGKIA,
SARAH JOELLE LINTAG,
HANNIBAL AUGUSTUS BOBIS,
FELIMON SANTIAGUEL, and Promulgated:
JAIME AGUSTIN R. OPOSA,
Respondents. December 18, 2008
x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

The need to address environmental pollution, as a cause of climate change,


has of late gained the attention of the international community. Media have finally
trained their sights on the ill effects of pollution, the destruction of forests and
other critical habitats, oil spills, and the unabated improper disposal of garbage.
And rightly so, for the magnitude of environmental destruction is now on a scale
few ever foresaw and the wound no longer simply heals by itself.[2] But amidst hard
evidence and clear signs of a climate crisis that need bold action, the voice of
cynicism, naysayers, and procrastinators can still be heard.

This case turns on government agencies and their officers who, by the nature
of their respective offices or by direct statutory command, are tasked to protect and
preserve, at the first instance, our internal waters, rivers, shores, and seas polluted
by human activities. To most of these agencies and their official complement, the
pollution menace does not seem to carry the high national priority it deserves, if
their track records are to be the norm. Their cavalier attitude towards solving, if not
mitigating, the environmental pollution problem, is a sad commentary on
bureaucratic efficiency and commitment.
At the core of the case is the Manila Bay, a place with a proud historic past,
once brimming with marine life and, for so many decades in the past, a spot for
different contact recreation activities, but now a dirty and slowly dying expanse
mainly because of the abject official indifference of people and institutions that
could have otherwise made a difference.

This case started when, on January 29, 1999, respondents Concerned


Residents of Manila Bay filed a complaint before the Regional Trial Court (RTC)
in Imus, Cavite against several government agencies, among them the petitioners,
for the cleanup, rehabilitation, and protection of the Manila Bay. Raffled to Branch
20 and docketed as Civil Case No. 1851-99 of the RTC, the complaint alleged that
the water quality of the Manila Bay had fallen way below the allowable standards
set by law, specifically Presidential Decree No. (PD) 1152 or the Philippine
Environment Code. This environmental aberration, the complaint stated, stemmed
from:

x x x [The] reckless, wholesale, accumulated and ongoing acts of


omission or commission [of the defendants] resulting in the clear and
present danger to public health and in the depletion and contamination of
the marine life of Manila Bay, [for which reason] ALL defendants must
be held jointly and/or solidarily liable and be collectively ordered to
clean up Manila Bay and to restore its water quality to class B waters fit
for swimming, skin-diving, and other forms of contact recreation. [3]

In their individual causes of action, respondents alleged that the continued


neglect of petitioners in abating the pollution of the Manila Bay constitutes a
violation of, among others:

(1) Respondents constitutional right to life, health, and a balanced ecology;


(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);
(10) Civil Code provisions on nuisance and human relations;
(11) The Trust Doctrine and the Principle of Guardianship; and
(12) International Law

Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered


to clean the Manila Bay and submit to the RTC a concerted concrete plan of action
for the purpose.

The trial of the case started off with a hearing at the Manila Yacht Club
followed by an ocular inspection of the Manila Bay. Renato T. Cruz, the Chief of
the Water Quality Management Section, Environmental Management Bureau,
Department of Environment and Natural Resources (DENR), testifying for
petitioners, stated that water samples collected from different beaches around the
Manila Bay showed that the amount of fecal coliform content ranged from 50,000
to 80,000 most probable number (MPN)/ml when what DENR Administrative
Order No. 34-90 prescribed as a safe level for bathing and other forms of contact
recreational activities, or the SB level, is one not exceeding 200 MPN/100 ml.[4]

Rebecca de Vera, for Metropolitan Waterworks and Sewerage System


(MWSS) and in behalf of other petitioners, testified about the MWSS efforts to
reduce pollution along the Manila Bay through the Manila Second Sewerage
Project. For its part, the Philippine Ports Authority (PPA) presented, as part of its
evidence, its memorandum circulars on the study being conducted on ship-
generated waste treatment and disposal, and its Linis Dagat (Clean the Ocean)
project for the cleaning of wastes accumulated or washed to shore.

The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay

On September 13, 2002, the RTC rendered a Decision [5] in favor of


respondents. The dispositive portion reads:

WHEREFORE, finding merit in the complaint, judgment is hereby


rendered ordering the abovenamed defendant-government agencies,
jointly and solidarily, to clean up and rehabilitate Manila Bay and restore
its waters to SB classification to make it fit for swimming, skin-diving
and other forms of contact recreation. To attain this, defendant-agencies,
with defendant DENR as the lead agency, are directed, within six (6)
months from receipt hereof, to act and perform their respective duties by
devising a consolidated, coordinated and concerted scheme of action for
the rehabilitation and restoration of the bay.
In particular:

Defendant MWSS is directed to install, operate and maintain adequate


[sewerage] treatment facilities in strategic places under its jurisdiction
and increase their capacities.

Defendant LWUA, to see to it that the water districts under its wings,
provide, construct and operate sewage facilities for the proper disposal
of waste.

Defendant DENR, which is the lead agency in cleaning up Manila Bay,


to install, operate and maintain waste facilities to rid the bay of toxic and
hazardous substances.

Defendant PPA, to prevent and also to treat the discharge not only of
ship-generated wastes but also of other solid and liquid wastes from
docking vessels that contribute to the pollution of the bay.

Defendant MMDA, to establish, operate and maintain an adequate and


appropriate sanitary landfill and/or adequate solid waste and liquid
disposal as well as other alternative garbage disposal system such as re-
use or recycling of wastes.

Defendant DA, through the Bureau of Fisheries and Aquatic Resources,


to revitalize the marine life in Manila Bay and restock its waters with
indigenous fish and other aquatic animals.

Defendant DBM, to provide and set aside an adequate budget solely for
the purpose of cleaning up and rehabilitation of Manila Bay.

Defendant DPWH, to remove and demolish structures and other


nuisances that obstruct the free flow of waters to the bay. These
nuisances discharge solid and liquid wastes which eventually end up
in Manila Bay. As the construction and engineering arm of the
government, DPWH is ordered to actively participate in removing
debris, such as carcass of sunken vessels, and other non-biodegradable
garbage in the bay.
Defendant DOH, to closely supervise and monitor the operations of
septic and sludge companies and require them to have proper facilities
for the treatment and disposal of fecal sludge and sewage coming from
septic tanks.

Defendant DECS, to inculcate in the minds and hearts of the people


through education the importance of preserving and protecting the
environment.

Defendant Philippine Coast Guard and the PNP Maritime Group, to


protect at all costs the Manila Bay from all forms of illegal fishing.

No pronouncement as to damages and costs.

SO ORDERED.
The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before
the Court of Appeals (CA) individual Notices of Appeal which were eventually
consolidated and docketed as CA-G.R. CV No. 76528.

On the other hand, the DENR, Department of Public Works and Highways
(DPWH), Metropolitan Manila Development Authority (MMDA), Philippine Coast
Guard (PCG), Philippine National Police (PNP) Maritime Group, and five other
executive departments and agencies filed directly with this Court a petition for
review under Rule 45. The Court, in a Resolution of December 9, 2002, sent the
said petition to the CA for consolidation with the consolidated appeals of MWSS,
LWUA, and PPA, docketed as CA-G.R. SP No. 74944.

Petitioners, before the CA, were one in arguing in the main that the pertinent
provisions of the Environment Code (PD 1152) relate only to the cleaning of
specific pollution incidents and do not cover cleaning in general. And apart from
raising concerns about the lack of funds appropriated for cleaning purposes,
petitioners also asserted that the cleaning of the Manila Bay is not a ministerial act
which can be compelled by mandamus.

The CA Sustained the RTC


By a Decision[6] of September 28, 2005, the CA denied petitioners appeal
and affirmed the Decision of the RTC in toto, stressing that the trial courts decision
did not require petitioners to do tasks outside of their usual basic functions under
existing laws.[7]

Petitioners are now before this Court praying for the allowance of their Rule
45 petition on the following ground and supporting arguments:
THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT
HERETOFORE PASSED UPON BY THE HONORABLE COURT, I.E.,
IT AFFIRMED THE TRIAL COURTS DECISION DECLARING
THAT SECTION 20 OF [PD] 1152 REQUIRES CONCERNED
GOVERNMENT AGENCIES TO REMOVE ALL POLLUTANTS
SPILLED AND DISCHARGED IN THE WATER SUCH AS FECAL
COLIFORMS.

ARGUMENTS

I
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO
THE CLEANING OF SPECIFIC POLLUTION INCIDENTS AND
[DO] NOT COVER CLEANING IN GENERAL

II
THE CLEANING OR REHABILITATION OF
THE MANILA BAY IS NOT A MINISTERIAL ACT OF
PETITIONERS THAT CAN BE COMPELLED BY MANDAMUS.

The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152


under the headings, Upgrading of Water Quality and Clean-up Operations,
envisage a cleanup in general or are they limited only to the cleanup of specific
pollution incidents? And second, can petitioners be compelled by mandamus to
clean up and rehabilitate the ManilaBay?

On August 12, 2008, the Court conducted and heard the parties on oral
arguments.

Our Ruling
We shall first dwell on the propriety of the issuance of mandamus under the
premises.

The Cleaning or Rehabilitation of Manila Bay


Can be Compelled by Mandamus

Generally, the writ of mandamus lies to require the execution of a ministerial duty.
[8]
A ministerial duty is one that requires neither the exercise of official discretion
nor judgment.[9] It connotes an act in which nothing is left to the discretion of the
person executing it. It is a simple, definite duty arising under conditions admitted
or proved to exist and imposed by law. [10] Mandamus is available to compel action,
when refused, on matters involving discretion, but not to direct the exercise of
judgment or discretion one way or the other.

Petitioners maintain that the MMDAs duty to take measures and maintain
adequate solid waste and liquid disposal systems necessarily involves policy
evaluation and the exercise of judgment on the part of the agency concerned. They
argue that the MMDA, in carrying out its mandate, has to make decisions,
including choosing where a landfill should be located by undertaking feasibility
studies and cost estimates, all of which entail the exercise of discretion.

Respondents, on the other hand, counter that the statutory command is clear
and that petitioners duty to comply with and act according to the clear mandate of
the law does not require the exercise of discretion. According to respondents,
petitioners, the MMDA in particular, are without discretion, for example, to choose
which bodies of water they are to clean up, or which discharge or spill they are to
contain. By the same token, respondents maintain that petitioners are bereft of
discretion on whether or not to alleviate the problem of solid and liquid waste
disposal; in other words, it is the MMDAs ministerial duty to attend to such
services.

We agree with respondents.


First off, we wish to state that petitioners obligation to perform their duties
as defined by law, on one hand, and how they are to carry out such duties, on the
other, are two different concepts. While the implementation of the MMDAs
mandated tasks may entail a decision-making process, the enforcement of the law
or the very act of doing what the law exacts to be done is ministerial in nature and
may be compelled by mandamus. We said so in Social Justice Society v.
Atienza[11] in which the Court directed the City of Manila to enforce, as a matter of
ministerial duty, its Ordinance No. 8027 directing the three big local oil players to
cease and desist from operating their business in the so-called Pandacan Terminals
within six months from the effectivity of the ordinance. But to illustrate with
respect to the instant case, the MMDAs duty to put up an adequate and appropriate
sanitary landfill and solid waste and liquid disposal as well as other alternative
garbage disposal systems is ministerial, its duty being a statutory imposition. The
MMDAs duty in this regard is spelled out in Sec. 3(c) of Republic Act No. (RA)
7924 creating the MMDA. This section defines and delineates the scope of the
MMDAs waste disposal services to include:

Solid waste disposal and management which include formulation


and implementation of policies, standards, programs and projects for
proper and sanitary waste disposal. It shall likewise include
the establishment and operation of sanitary land fill and related
facilities and the implementation of other alternative programs intended
to reduce, reuse and recycle solid waste. (Emphasis added.)

The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid


Waste Management Act (RA 9003) which prescribes the minimum criteria for the
establishment of sanitary landfills and Sec. 42 which provides the minimum
operating requirements that each site operator shall maintain in the operation of a
sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,
[12]
enjoining the MMDA and local government units, among others, after the
effectivity of the law on February 15, 2001, from using and operating open dumps
for solid waste and disallowing, five years after such effectivity, the use of
controlled dumps.

The MMDAs duty in the area of solid waste disposal, as may be noted, is set
forth not only in the Environment Code (PD 1152) and RA 9003, but in its charter
as well. This duty of putting up a proper waste disposal system cannot be
characterized as discretionary, for, as earlier stated, discretion presupposes the
power or right given by law to public functionaries to act officially according to
their judgment or conscience.[13] A discretionary duty is one that allows a person to
exercise judgment and choose to perform or not to perform. [14] Any suggestion that
the MMDA has the option whether or not to perform its solid waste disposal-
related duties ought to be dismissed for want of legal basis.

A perusal of other petitioners respective charters or like enabling statutes and


pertinent laws would yield this conclusion: these government agencies are
enjoined, as a matter of statutory obligation, to perform certain functions relating
directly or indirectly to the cleanup, rehabilitation, protection, and preservation of
the Manila Bay. They are precluded from choosing not to perform these duties.
Consider:

(1) The DENR, under Executive Order No. (EO) 192,[15] is the primary agency
responsible for the conservation, management, development, and proper use of the
countrys environment and natural resources. Sec. 19 of the Philippine Clean Water
Act of 2004 (RA 9275), on the other hand, designates the DENR as the primary
government agency responsible for its enforcement and implementation, more
particularly over all aspects of water quality management. On water pollution, the
DENR, under the Acts Sec. 19(k), exercises jurisdiction over all aspects of water
pollution, determine[s] its location, magnitude, extent, severity, causes and effects
and other pertinent information on pollution, and [takes] measures, using available
methods and technologies, to prevent and abate such pollution.
The DENR, under RA 9275, is also tasked to prepare a National Water Quality
Status Report, an Integrated Water Quality Management Framework, and a 10-year
Water Quality Management Area Action Plan which is nationwide in scope
covering the Manila Bay and adjoining areas. Sec. 19 of RA 9275 provides:

Sec. 19 Lead Agency.The [DENR] shall be the primary government


agency responsible for the implementation and enforcement of this Act x
x x unless otherwise provided herein. As such, it shall have the following
functions, powers and responsibilities:
a) Prepare a National Water Quality Status report within twenty-four
(24) months from the effectivity of this Act: Provided, That the
Department shall thereafter review or revise and publish annually, or
as the need arises, said report;

b) Prepare an Integrated Water Quality Management Framework within


twelve (12) months following the completion of the status report;

c) Prepare a ten (10) year Water Quality Management Area Action Plan
within 12 months following the completion of the framework for
each designated water management area. Such action plan shall be
reviewed by the water quality management area governing board
every five (5) years or as need arises.

The DENR has prepared the status report for the period 2001 to 2005 and is in the
process of completing the preparation of the Integrated Water Quality Management
Framework.[16] Within twelve (12) months thereafter, it has to submit a final Water
Quality Management Area Action Plan.[17] Again, like the MMDA, the DENR
should be made to accomplish the tasks assigned to it under RA 9275.
Parenthetically, during the oral arguments, the DENR Secretary manifested that the
DENR, with the assistance of and in partnership with various government agencies
and non-government organizations, has completed, as of December 2005, the final
draft of a comprehensive action plan with estimated budget and time frame,
denominated as Operation Plan for the Manila Bay Coastal Strategy, for the
rehabilitation, restoration, and rehabilitation of the Manila Bay.

The completion of the said action plan and even the implementation of some of its
phases should more than ever prod the concerned agencies to fast track what are
assigned them under existing laws.

(2) The MWSS, under Sec. 3 of RA 6234, [18] is vested with jurisdiction,
supervision, and control over all waterworks and sewerage systems in the territory
comprising what is now the cities of Metro Manila and several towns of the
provinces of Rizal and Cavite, and charged with the duty:
(g) To construct, maintain, and operate such sanitary sewerages as may
be necessary for the proper sanitation and other uses of the cities and
towns comprising the System; x x x
(3) The LWUA under PD 198 has the power of supervision and control over
local water districts. It can prescribe the minimum standards and regulations for the
operations of these districts and shall monitor and evaluate local water standards.
The LWUA can direct these districts to construct, operate, and furnish facilities and
services for the collection, treatment, and disposal of sewerage, waste, and storm
water. Additionally, under RA 9275, the LWUA, as attached agency of the DPWH,
is tasked with providing sewerage and sanitation facilities, inclusive of the setting
up of efficient and safe collection, treatment, and sewage disposal system in the
different parts of the country.[19] In relation to the instant petition, the LWUA is
mandated to provide sewerage and sanitation facilities in Laguna, Cavite, Bulacan,
Pampanga, and Bataan to prevent pollution in the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the Administrative Code of
1987 (EO 292),[20] is designated as the agency tasked to promulgate and enforce all
laws and issuances respecting the conservation and proper utilization of
agricultural and fishery resources. Furthermore, the DA, under the Philippine
Fisheries Code of 1998 (RA 8550), is, in coordination with local government units
(LGUs) and other concerned sectors, in charge of establishing a monitoring,
control, and surveillance system to ensure that fisheries and aquatic resources in
Philippine waters are judiciously utilized and managed on a sustainable basis.
[21]
Likewise under RA 9275, the DA is charged with coordinating with the PCG
and DENR for the enforcement of water quality standards in marine waters.
[22]
More specifically, its Bureau of Fisheries and Aquatic Resources (BFAR) under
Sec. 22(c) of RA 9275 shall primarily be responsible for the prevention and control
of water pollution for the development, management, and conservation of the
fisheries and aquatic resources.

(5) The DPWH, as the engineering and construction arm of the national
government, is tasked under EO 292[23] to provide integrated planning, design, and
construction services for, among others, flood control and water resource
development systems in accordance with national development objectives and
approved government plans and specifications.

In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to


perform metro-wide services relating to flood control and sewerage management
which include the formulation and implementation of policies, standards, programs
and projects for an integrated flood control, drainage and sewerage system.
On July 9, 2002, a Memorandum of Agreement was entered into between the
DPWH and MMDA, whereby MMDA was made the agency primarily responsible
for flood control in Metro Manila. For the rest of the country, DPWH shall remain
as the implementing agency for flood control services. The mandate of the MMDA
and DPWH on flood control and drainage services shall include the removal of
structures, constructions, and encroachments built along rivers, waterways,
and esteros (drainages) in violation of RA 7279, PD 1067, and other pertinent laws.

(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast
Guard Law of 1974, and Sec. 6 of PD 979, [24] or the Marine Pollution Decree of
1976, shall have the primary responsibility of enforcing laws, rules, and
regulations governing marine pollution within the territorial waters of
the Philippines. It shall promulgate its own rules and regulations in accordance
with the national rules and policies set by the National Pollution Control
Commission upon consultation with the latter for the effective implementation and
enforcement of PD 979. It shall, under Sec. 4 of the law, apprehend violators who:

a. discharge, dump x x x harmful substances from or out of any ship,


vessel, barge, or any other floating craft, or other man-made structures at
sea, by any method, means or manner, into or upon the territorial and
inland navigable waters of the Philippines;

b. throw, discharge or deposit, dump, or cause, suffer or procure to be


thrown, discharged, or deposited either from or out of any ship, barge, or
other floating craft or vessel of any kind, or from the shore, wharf,
manufacturing establishment, or mill of any kind, any refuse matter of
any kind or description whatever other than that flowing from streets and
sewers and passing therefrom in a liquid state into tributary of any
navigable water from which the same shall float or be washed into such
navigable water; and

c. deposit x x x material of any kind in any place on the bank of any


navigable water or on the bank of any tributary of any navigable water,
where the same shall be liable to be washed into such navigable water,
either by ordinary or high tides, or by storms or floods, or otherwise,
whereby navigation shall or may be impeded or obstructed or increase
the level of pollution of such water.
(7) When RA 6975 or the Department of the Interior and Local Government
(DILG) Act of 1990 was signed into law on December 13, 1990, the PNP Maritime
Group was tasked to perform all police functions over the Philippine territorial
waters and rivers. Under Sec. 86, RA 6975, the police functions of the PCG shall
be taken over by the PNP when the latter acquires the capability to perform such
functions. Since the PNP Maritime Group has not yet attained the capability to
assume and perform the police functions of PCG over marine pollution, the PCG
and PNP Maritime Group shall coordinate with regard to the enforcement of laws,
rules, and regulations governing marine pollution within the territorial waters of
the Philippines. This was made clear in Sec. 124, RA 8550 or the Philippine
Fisheries Code of 1998, in which both the PCG and PNP Maritime Group were
authorized to enforce said law and other fishery laws, rules, and regulations.[25]

(8) In accordance with Sec. 2 of EO 513, the PPA is mandated to establish,


develop, regulate, manage and operate a rationalized national port system in
support of trade and national development. [26] Moreover, Sec. 6-c of EO 513 states
that the PPA has police authority within the

ports administered by it as may be necessary to carry out its powers and


functions and attain its purposes and objectives, without prejudice to the
exercise of the functions of the Bureau of Customs and other law
enforcement bodies within the area. Such police authority shall include
the following:
xxxx

b) To regulate the entry to, exit from, and movement within the port, of
persons and vehicles, as well as movement within the port of watercraft.
[27]

Lastly, as a member of the International Marine Organization and a signatory


to the International Convention for the Prevention of Pollution from Ships, as
amended by MARPOL 73/78,[28] the Philippines, through the PPA, must ensure the
provision of adequate reception facilities at ports and terminals for the reception of
sewage from the ships docking in Philippine ports. Thus, the PPA is tasked to adopt
such measures as are necessary to prevent the discharge and dumping of solid and
liquid wastes and other ship-generated wastes into the Manila Bay waters from
vessels docked at ports and apprehend the violators. When the vessels are not
docked at ports but within Philippine territorial waters, it is the PCG and PNP
Maritime Group that have jurisdiction over said vessels.

(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain


adequate sanitary landfill and solid waste and liquid disposal system as well as
other alternative garbage disposal systems. It is primarily responsible for the
implementation and enforcement of the provisions of RA 9003, which would
necessary include its penal provisions, within its area of jurisdiction.[29]

Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are
frequently violated are dumping of waste matters in public places, such as roads,
canals or esteros, open burning of solid waste, squatting in open dumps and
landfills, open dumping, burying of biodegradable or non- biodegradable materials
in flood-prone areas, establishment or operation of open dumps as enjoined in RA
9003, and operation of waste management facilities without an environmental
compliance certificate.

Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279),
eviction or demolition may be allowed when persons or entities occupy danger
areas such asesteros, railroad tracks, garbage dumps, riverbanks, shorelines,
waterways, and other public places such as sidewalks, roads, parks and
playgrounds. The MMDA, as lead agency, in coordination with the DPWH, LGUs,
and concerned agencies, can dismantle and remove all structures, constructions,
and other encroachments built in breach of RA 7279 and other pertinent laws along
the rivers, waterways, and esteros in Metro Manila. With respect to rivers,
waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite, and Laguna that
discharge wastewater directly or eventually into the Manila Bay, the DILG shall
direct the concerned LGUs to implement the demolition and removal of such
structures, constructions, and other encroachments built in violation of RA 7279
and other applicable laws in coordination with the DPWH and concerned agencies.

(10) The Department of Health (DOH), under Article 76 of PD 1067 (the


Water Code), is tasked to promulgate rules and regulations for the establishment of
waste disposal areas that affect the source of a water supply or a reservoir for
domestic or municipal use. And under Sec. 8 of RA 9275, the DOH, in
coordination with the DENR, DPWH, and other concerned agencies, shall
formulate guidelines and standards for the collection, treatment, and disposal of
sewage and the establishment and operation of a centralized sewage treatment
system. In areas not considered as highly urbanized cities, septage or a mix
sewerage-septage management system shall be employed.

In accordance with Sec. 72[30] of PD 856, the Code of Sanitation of


the Philippines, and Sec. 5.1.1[31] of Chapter XVII of its implementing rules, the
DOH is also ordered to ensure the regulation and monitoring of the proper disposal
of wastes by private sludge companies through the strict enforcement of the
requirement to obtain an environmental sanitation clearance of sludge collection
treatment and disposal before these companies are issued their environmental
sanitation permit.

(11) The Department of Education (DepEd), under the Philippine


Environment Code (PD 1152), is mandated to integrate subjects on environmental
education in its school curricula at all levels. [32] Under Sec. 118 of RA 8550, the
DepEd, in collaboration with the DA, Commission on Higher Education, and
Philippine Information Agency, shall launch and pursue a nationwide educational
campaign to promote the development, management, conservation, and proper use
of the environment. Under the Ecological Solid Waste Management Act (RA
9003), on the other hand, it is directed to strengthen the integration of
environmental concerns in school curricula at all levels, with an emphasis on waste
management principles.[33]
(12) The Department of Budget and Management (DBM) is tasked under Sec. 2,
Title XVII of the Administrative Code of 1987 to ensure the efficient and sound
utilization of government funds and revenues so as to effectively achieve the
countrys development objectives.[34]

One of the countrys development objectives is enshrined in RA 9275 or the


Philippine Clean Water Act of 2004. This law stresses that the State shall pursue a
policy of economic growth in a manner consistent with the protection,
preservation, and revival of the quality of our fresh, brackish, and marine waters. It
also provides that it is the policy of the government, among others, to streamline
processes and procedures in the prevention, control, and abatement of pollution
mechanisms for the protection of water resources; to promote environmental
strategies and use of appropriate economic instruments and of control mechanisms
for the protection of water resources; to formulate a holistic national program of
water quality management that recognizes that issues related to this management
cannot be separated from concerns about water sources and ecological protection,
water supply, public health, and quality of life; and to provide a comprehensive
management program for water pollution focusing on pollution prevention.

Thus, the DBM shall then endeavor to provide an adequate budget to attain the
noble objectives of RA 9275 in line with the countrys development objectives.

All told, the aforementioned enabling laws and issuances are in themselves
clear, categorical, and complete as to what are the obligations and mandate of each
agency/petitioner under the law. We need not belabor the issue that their tasks
include the cleanup of the Manila Bay.

Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment


Code encompass the cleanup of water pollution in general, not just specific
pollution incidents?

Secs. 17 and 20 of the Environment Code


Include Cleaning in General

The disputed sections are quoted as follows:


Section 17. Upgrading of Water Quality.Where the quality of water has deteriorated to a degree
where its state will adversely affect its best usage, the government agencies concerned shall take
such measures as may be necessary to upgrade the quality of such water to meet the prescribed
water quality standards.

Section 20. Clean-up Operations.It shall be the responsibility of the polluter to contain, remove
and clean-up water pollution incidents at his own expense. In case of his failure to do so, the
government agencies concerned shall undertake containment, removal and clean-up operations
and expenses incurred in said operations shall be charged against the persons and/or entities
responsible for such pollution.

When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the
subject, Cleanup Operations, amended the counterpart provision (Sec. 20) of the
Environment Code (PD 1152). Sec. 17 of PD 1152 continues, however, to be
operational.

The amendatory Sec. 16 of RA 9275 reads:

SEC. 16. Cleanup Operations.Notwithstanding the provisions of


Sections 15 and 26 hereof, any person who causes pollution in or
pollutes water bodies in excess of the applicable and prevailing standards
shall be responsible to contain, remove and clean up any pollution
incident at his own expense to the extent that the same water bodies have
been rendered unfit for utilization and beneficial use: Provided, That in
the event emergency cleanup operations are necessary and the polluter
fails to immediately undertake the same, the [DENR] in coordination
with other government agencies concerned, shall undertake containment,
removal and cleanup operations. Expenses incurred in said operations
shall be reimbursed by the persons found to have caused such pollution
under proper administrative determination x x x. Reimbursements of the
cost incurred shall be made to the Water Quality Management Fund or to
such other funds where said disbursements were sourced.

As may be noted, the amendment to Sec. 20 of the Environment Code is more


apparent than real since the amendment, insofar as it is relevant to this case, merely
consists in the designation of the DENR as lead agency in the cleanup operations.

Petitioners contend at every turn that Secs. 17 and 20 of the Environment


Code concern themselves only with the matter of cleaning up in specific pollution
incidents, as opposed to cleanup in general. They aver that the twin provisions
would have to be read alongside the succeeding Sec. 62(g) and (h), which defines
the terms cleanup operations and accidental spills, as follows:
g. Clean-up Operations [refer] to activities conducted in removing the pollutants discharged or
spilled in water to restore it to pre-spill condition.

h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that result
from accidents such as collisions and groundings.
Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely
direct the government agencies concerned to undertake containment, removal, and
cleaning operations of a specific polluted portion or portions of the body of water
concerned. They maintain that the application of said Sec. 20 is limited only to
water pollution incidents, which are situations that presuppose the occurrence of
specific, isolated pollution events requiring the corresponding containment,
removal, and cleaning operations. Pushing the point further, they argue that the
aforequoted Sec. 62(g) requires cleanup operations to restore the body of water to
pre-spill condition, which means that there must have been a specific incident of
either intentional or accidental spillage of oil or other hazardous substances, as
mentioned in Sec. 62(h).

As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g)


as delimiting the application of Sec. 20 to the containment, removal, and cleanup
operations for accidental spills only. Contrary to petitioners posture, respondents
assert that Sec. 62(g), in fact, even expanded the coverage of Sec. 20. Respondents
explain that without its Sec. 62(g), PD 1152 may have indeed covered only
pollution accumulating from the day-to-day operations of businesses around
the Manila Bay and other sources of pollution that slowly accumulated in the bay.
Respondents, however, emphasize that Sec. 62(g), far from being a delimiting
provision, in fact even enlarged the operational scope of Sec. 20, by including
accidental spills as among the water pollution incidents contemplated in Sec. 17 in
relation to Sec. 20 of PD 1152.

To respondents, petitioners parochial view on environmental issues, coupled


with their narrow reading of their respective mandated roles, has contributed to the
worsening water quality of the Manila Bay. Assuming, respondents assert, that
petitioners are correct in saying that the cleanup coverage of Sec. 20 of PD 1152 is
constricted by the definition of the phrase cleanup operations embodied in Sec.
62(g), Sec. 17 is not hobbled by such limiting definition. As pointed out, the
phrases cleanup operations and accidental spills do not appear in said Sec. 17, not
even in the chapter where said section is found.

Respondents are correct. For one thing, said Sec. 17 does not in any way
state that the government agencies concerned ought to confine themselves to the
containment, removal, and cleaning operations when a specific pollution incident
occurs. On the contrary, Sec. 17 requires them to act even in the absence of a
specific pollution incident, as long as water quality has deteriorated to a degree
where its state will adversely affect its best usage. This section, to stress,
commands concerned government agencies, when appropriate, to take such
measures as may be necessary to meet the prescribed water quality standards. In
fine, the underlying duty to upgrade the quality of water is not conditional on the
occurrence of any pollution incident.

For another, a perusal of Sec. 20 of the Environment Code, as couched,


indicates that it is properly applicable to a specific situation in which the pollution
is caused by polluters who fail to clean up the mess they left behind. In such
instance, the concerned government agencies shall undertake the cleanup work for
the polluters account. Petitioners assertion, that they have to perform cleanup
operations in the Manila Bay only when there is a water pollution incident and the
erring polluters do not undertake the containment, removal, and cleanup
operations, is quite off mark. As earlier discussed, the complementary Sec. 17 of
the Environment Code comes into play and the specific duties of the agencies to
clean up come in even if there are no pollution incidents staring at
them. Petitioners, thus, cannot plausibly invoke and hide behind Sec. 20 of PD
1152 or Sec. 16 of RA 9275 on the pretext that their cleanup mandate depends on
the happening of a specific pollution incident. In this regard, what the CA said with
respect to the impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is
practical. The appellate court wrote: PD 1152 aims to introduce a comprehensive
program of environmental protection and management. This is better served by
making Secs. 17 & 20 of general application rather than limiting them to specific
pollution incidents.[35]

Granting arguendo that petitioners position thus described vis--vis the


implementation of Sec. 20 is correct, they seem to have overlooked the fact that the
pollution of the Manila Bay is of such magnitude and scope that it is well-nigh
impossible to draw the line between a specific and a general pollution incident.
And such impossibility extends to pinpointing with reasonable certainty who the
polluters are. We note that Sec. 20 of PD 1152 mentions water pollution incidents
which may be caused by polluters in the waters of the Manila Bay itself or by
polluters in adjoining lands and in water bodies or waterways that empty into the
bay. Sec. 16 of RA 9275, on the other hand, specifically adverts to any person who
causes pollution in or pollutes water bodies, which may refer to an individual or an
establishment that pollutes the land mass near the Manila Bay or the waterways,
such that the contaminants eventually end up in the bay. In this situation, the water
pollution incidents are so numerous and involve nameless and faceless polluters
that they can validly be categorized as beyond the specific pollution incident level.
Not to be ignored of course is the reality that the government agencies
concerned are so undermanned that it would be almost impossible to apprehend the
numerous polluters of the Manila Bay. It may perhaps not be amiss to say that the
apprehension, if any, of the Manila Bay polluters has been few and far between.
Hence, practically nobody has been required to contain, remove, or clean up a
given water pollution incident. In this kind of setting, it behooves the Government
to step in and undertake cleanup operations. Thus, Sec. 16 of RA 9275, previously
Sec. 20 of PD 1152, covers for all intents and purposes a general cleanup situation.

The cleanup and/or restoration of the Manila Bay is only an aspect and the initial
stage of the long-term solution. The preservation of the water quality of the bay
after the rehabilitation process is as important as the cleaning phase. It is
imperative then that the wastes and contaminants found in the rivers, inland bays,
and other bodies of water be stopped from reaching the Manila Bay. Otherwise,
any cleanup effort would just be a futile, cosmetic exercise, for, in no time at all,
the Manila Bay water quality would again deteriorate below the ideal minimum
standards set by PD 1152, RA 9275, and other relevant laws. It thus behooves the
Court to put the heads of the petitioner-department-agencies and the bureaus and
offices under them on continuing notice about, and to enjoin them to perform, their
mandates and duties towards cleaning up the Manila Bay and preserving the
quality of its water to the ideal level. Under what other judicial discipline describes
as continuing mandamus,[36] the Court may, under extraordinary circumstances,
issue directives with the end in view of ensuring that its decision would not be set
to naught by administrative inaction or indifference. In India, the doctrine of
continuing mandamus was used to enforce directives of the court to clean up the
length of the Ganges River from industrial and municipal pollution.[37]
The Court can take judicial notice of the presence of shanties and other
unauthorized structures which do not have septic tanks along the Pasig-Marikina-
San Juan Rivers, the National Capital Region (NCR) (Paraaque-Zapote, Las Pias)
Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycuayan-Marilao-
Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other minor rivers and connecting waterways, river banks,
and esteros which discharge their waters, with all the accompanying filth, dirt, and
garbage, into the major rivers and eventually the Manila Bay. If there is one factor
responsible for the pollution of the major river systems and the Manila Bay, these
unauthorized structures would be on top of the list. And if the issue of illegal or
unauthorized structures is not seriously addressed with sustained resolve, then
practically all efforts to cleanse these important bodies of water would be for
naught. The DENR Secretary said as much.[38]

Giving urgent dimension to the necessity of removing these illegal structures is


Art. 51 of PD 1067 or the Water Code,[39] which prohibits the building of structures
within a given length along banks of rivers and other waterways. Art. 51 reads:

The banks of rivers and streams and the shores of the seas and
lakes throughout their entire length and within a zone of three (3)
meters in urban areas, twenty (20) meters in agricultural areas and
forty (40) meters in forest areas, along their margins, are subject to the
easement of public use in the interest of recreation, navigation,
floatage, fishing and salvage.No person shall be allowed to stay in
this zone longer than what is necessary for recreation, navigation,
floatage, fishing or salvage or to build structures of any
kind. (Emphasis added.)

Judicial notice may likewise be taken of factories and other industrial


establishments standing along or near the banks of the Pasig River, other major
rivers, and connecting waterways. But while they may not be treated as
unauthorized constructions, some of these establishments undoubtedly contribute
to the pollution of the Pasig River and waterways. The DILG and the concerned
LGUs, have, accordingly, the duty to see to it that non-complying industrial
establishments set up, within a reasonable period, the necessary waste water
treatment facilities and infrastructure to prevent their industrial discharge,
including their sewage waters, from flowing into the Pasig River, other major
rivers, and connecting waterways. After such period, non-complying
establishments shall be shut down or asked to transfer their operations.
At this juncture, and if only to dramatize the urgency of the need for petitioners-
agencies to comply with their statutory tasks, we cite the Asian Development
Bank-commissioned study on the garbage problem in Metro Manila, the results of
which are embodied in the The Garbage Book. As there reported, the garbage crisis
in the metropolitan area is as alarming as it is shocking. Some highlights of the
report:

1. As early as 2003, three land-filled dumpsites in Metro Manila -


the Payatas, Catmon and Rodriquez dumpsites - generate an alarming
quantity of lead and leachate or liquid run-off. Leachate are toxic liquids
that flow along the surface and seep into the earth and poison the surface
and groundwater that are used for drinking, aquatic life, and the
environment.

2. The high level of fecal coliform confirms the presence of a


large amount of human waste in the dump sites and surrounding areas,
which is presumably generated by households that lack alternatives to
sanitation. To say that Manila Bay needs rehabilitation is an
understatement.

3. Most of the deadly leachate, lead and other dangerous


contaminants and possibly strains of pathogens seeps untreated into
ground water and runs into the Marikina and Pasig Riversystems
and Manila Bay.[40]

Given the above perspective, sufficient sanitary landfills should now more
than ever be established as prescribed by the Ecological Solid Waste Management
Act (RA 9003). Particular note should be taken of the blatant violations by some
LGUs and possibly the MMDA of Sec. 37, reproduced below:
Sec. 37. Prohibition against the Use of Open Dumps for Solid
Waste.No open dumps shall be established and operated, nor any practice
or disposal of solid waste by any person, including LGUs which
[constitute] the use of open dumps for solid waste, be allowed after the
effectivity of this Act: Provided, further that no controlled dumps shall
be allowed (5) years following the effectivity of this Act. (Emphasis
added.)
RA 9003 took effect on February 15, 2001 and the adverted grace period of
five (5) years which ended on February 21, 2006 has come and gone, but no single
sanitary landfill which strictly complies with the prescribed standards under RA
9003 has yet been set up.

In addition, there are rampant and repeated violations of Sec. 48 of RA 9003,


like littering, dumping of waste matters in roads, canals, esteros, and other public
places, operation of open dumps, open burning of solid waste, and the like. Some
sludge companies which do not have proper disposal facilities simply discharge
sludge into the Metro Manila sewerage system that ends up in
the Manila Bay. Equally unabated are violations of Sec. 27 of RA 9275, which
enjoins the pollution of water bodies, groundwater pollution, disposal of infectious
wastes from vessels, and unauthorized transport or dumping into sea waters of
sewage or solid waste and of Secs. 4 and 102 of RA 8550 which proscribes the
introduction by human or machine of substances to the aquatic environment
including dumping/disposal of waste and other marine litters, discharge of
petroleum or residual products of petroleum of carbonaceous materials/substances
[and other] radioactive, noxious or harmful liquid, gaseous or solid substances,
from any water, land or air transport or other human-made structure.

In the light of the ongoing environmental degradation, the Court wishes to


emphasize the extreme necessity for all concerned executive departments and
agencies to immediately act and discharge their respective official duties and
obligations. Indeed, time is of the essence; hence, there is a need to set timetables
for the performance and completion of the tasks, some of them as defined for them
by law and the nature of their respective offices and mandates.

The importance of the Manila Bay as a sea resource, playground, and as a


historical landmark cannot be over-emphasized. It is not yet too late in the day to
restore the Manila Bay to its former splendor and bring back the plants and sea life
that once thrived in its blue waters. But the tasks ahead, daunting as they may be,
could only be accomplished if those mandated, with the help and cooperation of all
civic-minded individuals, would put their minds to these tasks and take
responsibility. This means that the State, through petitioners, has to take the lead in
the preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over. Petitioners
must transcend their limitations, real or imaginary, and buckle down to work before
the problem at hand becomes unmanageable. Thus, we must reiterate that different
government agencies and instrumentalities cannot shirk from their mandates; they
must perform their basic functions in cleaning up and rehabilitating
the Manila Bay. We are disturbed by petitioners hiding behind two untenable
claims: (1) that there ought to be a specific pollution incident before they are
required to act; and (2) that the cleanup of the bay is a discretionary duty.

RA 9003 is a sweeping piece of legislation enacted to radically transform


and improve waste management. It implements Sec. 16, Art. II of the 1987
Constitution, which explicitly provides that the State shall protect and advance the
right of the people to a balanced and healthful ecology in accord with the rhythm
and harmony of nature.

So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a
balanced and healthful ecology need not even be written in the Constitution for it is
assumed, like other civil and political rights guaranteed in the Bill of Rights, to
exist from the inception of mankind and it is an issue of transcendental importance
with intergenerational implications.[41] Even assuming the absence of a categorical
legal provision specifically prodding petitioners to clean up the bay, they and the
men and women representing them cannot escape their obligation to future
generations of Filipinos to keep the waters of the Manila Bay clean and clear as
humanly as possible. Anything less would be a betrayal of the trust reposed in
them.

WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the
CA in CA-G.R. CV No. 76528 and SP No. 74944 and the September 13, 2002
Decision of the RTC in Civil Case No. 1851-99 are AFFIRMED but
with MODIFICATIONS in view of subsequent developments or supervening
events in the case. The fallo of the RTC Decision shall now read:
WHEREFORE, judgment is hereby rendered ordering the abovenamed
defendant-government agencies to clean up, rehabilitate, and
preserve Manila Bay, and restore and maintain its waters to SB level
(Class B sea waters per Water Classification Tables under DENR
Administrative Order No. 34 [1990]) to make them fit for swimming,
skin-diving, and other forms of contact recreation.

In particular:

(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency
responsible for the conservation, management, development, and proper use of the
countrys environment and natural resources, and Sec. 19 of RA 9275, designating
the DENR as the primary government agency responsible for its enforcement and
implementation, the DENR is directed to fully implement its Operational Plan for
the Manila Bay Coastal Strategy for the rehabilitation, restoration, and
conservation of the Manila Bay at the earliest possible time. It is ordered to call
regular coordination meetings with concerned government departments and
agencies to ensure the successful implementation of the aforesaid plan of action in
accordance with its indicated completion schedules.

(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987
and Sec. 25 of the Local Government Code of 1991,[42] the DILG, in exercising the
Presidents power of general supervision and its duty to promulgate guidelines in
establishing waste management programs under Sec. 43 of the Philippine
Environment Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal,
Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all factories,
commercial establishments, and private homes along the banks of the major river
systems in their respective areas of jurisdiction, such as but not limited to the
Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the
Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando
(Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna
De Bay, and other minor rivers and waterways that eventually discharge water into
the Manila Bay; and the lands abutting the bay, to determine whether they have
wastewater treatment facilities or hygienic septic tanks as prescribed by existing
laws, ordinances, and rules and regulations. If none be found, these LGUs shall be
ordered to require non-complying establishments and homes to set up said facilities
or septic tanks within a reasonable time to prevent industrial wastes, sewage water,
and human wastes from flowing into these rivers, waterways, esteros, and the
Manila Bay, under pain of closure or imposition of fines and other sanctions.
(3) As mandated by Sec. 8 of RA 9275,[43] the MWSS is directed to provide, install,
operate, and maintain the necessary adequate waste water treatment facilities in
Metro Manila, Rizal, and Cavite where needed at the earliest possible time.

(4) Pursuant to RA 9275,[44] the LWUA, through the local water districts and
in coordination with the DENR, is ordered to provide, install, operate, and
maintain sewerage and sanitation facilities and the efficient and safe collection,
treatment, and disposal of sewage in the provinces of Laguna, Cavite, Bulacan,
Pampanga, and Bataan where needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550,[45] the DA, through the BFAR, is ordered to
improve and restore the marine life of the Manila Bay. It is also directed to assist
the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan
in developing, using recognized methods, the fisheries and aquatic resources in
the Manila Bay.

(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group,
in accordance with Sec. 124 of RA 8550, in coordination with each other, shall
apprehend violators of PD 979, RA 8550, and other existing laws and regulations
designed to prevent marine pollution in the Manila Bay.

(7) Pursuant to Secs. 2 and 6-c of EO 513 [46] and the International
Convention for the Prevention of Pollution from Ships, the PPA is ordered to
immediately adopt such measures to prevent the discharge and dumping of solid
and liquid wastes and other ship-generated wastes into the Manila Bay waters from
vessels docked at ports and apprehend the violators.

(8) The MMDA, as the lead agency and implementor of programs and
projects for flood control projects and drainage services in Metro Manila, in
coordination with the DPWH, DILG, affected LGUs, PNP Maritime Group,
Housing and Urban Development Coordinating Council (HUDCC), and other
agencies, shall dismantle and remove allstructures, constructions, and other
encroachments established or built in violation of RA 7279, and other applicable
laws along the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las
Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting
waterways and esteros in Metro Manila. The DPWH, as the principal implementor
of programs and projects for flood control services in the rest of the country more
particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in coordination
with the DILG, affected LGUs, PNP Maritime Group, HUDCC, and other
concerned government agencies, shall remove and demolish all structures,
constructions, and other encroachments built in breach of RA 7279 and other
applicable laws along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the
Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other
rivers, connecting waterways, and esteros that discharge wastewater into the
Manila Bay.

In addition, the MMDA is ordered to establish, operate, and maintain a sanitary


landfill, as prescribed by RA 9003, within a period of one (1) year from finality of
this Decision.On matters within its territorial jurisdiction and in connection with
the discharge of its duties on the maintenance of sanitary landfills and like
undertakings, it is also ordered to cause the apprehension and filing of the
appropriate criminal cases against violators of the respective penal provisions of
RA 9003,[47] Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws on
pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275,
within one (1) year from finality of this Decision, determine if all licensed septic
and sludge companies have the proper facilities for the treatment and disposal of
fecal sludge and sewage coming from septic tanks. The DOH shall give the
companies, if found to be non-complying, a reasonable time within which to set up
the necessary facilities under pain of cancellation of its environmental sanitation
clearance.

(10) Pursuant to Sec. 53 of PD 1152,[48] Sec. 118 of RA 8550, and Sec. 56 of RA


9003,[49] the DepEd shall integrate lessons on pollution prevention, waste
management, environmental protection, and like subjects in the school curricula of
all levels to inculcate in the minds and hearts of students and, through them, their
parents and friends, the importance of their duty toward achieving and maintaining
a balanced and healthful ecosystem in the Manila Bay and the entire Philippine
archipelago.

(11) The DBM shall consider incorporating an adequate budget in the General
Appropriations Act of 2010 and succeeding years to cover the expenses relating to
the cleanup, restoration, and preservation of the water quality of the Manila Bay, in
line with the countrys development objective to attain economic growth in a
manner consistent with the protection, preservation, and revival of our marine
waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA,
DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA,
and PPA, in line with the principle of continuing mandamus, shall, from finality of
this Decision, each submit to the Court a quarterly progressive report of the
activities undertaken in accordance with this Decision.

No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.


Associate Justice
WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO


Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES Associate


Justice Associate Justice
ADOLFO S. AZCUNA DANTE O. TINGA
Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA


Associate Justice Associate Justice

RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO


Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

C E R T I FI CAT I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice