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Manila Mayor RAMON BAGATSING vs.

JUDGE PEDRO RAMIREZ (CFI-Manila) [December 17, 1976]

The chief question to be decided in this case is what law shall govern the publication of a tax ordinance enacted by
the Municipal Board of Manila, the Revised City Charter (R.A. 409, as amended), which requires publication of the
ordinance before its enactment and after its approval, or the Local Tax Code (P.D. No. 231), which only demands
publication after approval.

On June 12, 1974, the Municipal Board of Manila enacted Ordinance No. 7522, "AN ORDINANCE REGULATING THE
OPERATION OF PUBLIC MARKETS AND PRESCRIBING FEES FOR THE RENTALS OF STALLS AND PROVIDING PENALTIES
FOR VIOLATION THEREOF AND FOR OTHER PURPOSES." The petitioner City Mayor, Ramon D. Bagatsing, approved the
ordinance on June 15, 1974.

On February 17, 1975, respondent Federation of Manila Market Vendors, Inc. commenced Civil Case 96787 before
the Court of First Instance of Manila presided over by respondent Judge, seeking the declaration of nullity of
Ordinance No. 7522 for the reason that (a) the publication requirement under the Revised Charter of the City of
Manila has not been complied with; (b) the Market Committee was not given any participation in the enactment of
the ordinance, as envisioned by Republic Act 6039; (c) Section 3 (e) of the Anti-Graft and Corrupt Practices Act has
been violated; and (d) the ordinance would violate Presidential Decree No. 7 of September 30, 1972 prescribing the
collection of fees and charges on livestock and animal products.

Resolving the accompanying prayer for the issuance of a writ of preliminary injunction, respondent Judge issued an
order on March 11, 1975, denying the plea for failure of the respondent Federation of Manila Market Vendors, Inc. to
exhaust the administrative remedies outlined in the Local Tax Code.

After due hearing on the merits, respondent Judge rendered its decision on August 29, 1975, declaring the nullity of
Ordinance No. 7522 of the City of Manila on the primary ground of non-compliance with the requirement of
publication under the Revised City Charter. Respondent Judge ruled:

There is, therefore, no question that the ordinance in question was not published at all in two daily
newspapers of general circulation in the City of Manila before its enactment. Neither was it
published in the same manner after approval, although it was posted in the legislative hall and in all
city public markets and city public libraries. There being no compliance with the mandatory
requirement of publication before and after approval, the ordinance in question is invalid and,
therefore, null and void.

Petitioners moved for reconsideration of the adverse decision, stressing that (a) only a post-publication is required by
the Local Tax Code; and (b) private respondent failed to exhaust all administrative remedies before instituting an
action in court.

On September 26, 1975, respondent Judge denied the motion.

Forthwith, petitioners brought the matter to Us through the present petition for review on certiorari.

We find the petition impressed with merits.

1. The nexus of the present controversy is the apparent conflict between the Revised Charter of the City of Manila
and the Local Tax Code on the manner of publishing a tax ordinance enacted by the Municipal Board of Manila. For,
while Section 17 of the Revised Charter provides:

Each proposed ordinance shall be published in two daily newspapers of general circulation in the city,
and shall not be discussed or enacted by the Board until after the third day following such
publication. * * * Each approved ordinance * * * shall be published in two daily newspapers of
general circulation in the city, within ten days after its approval; and shall take effect and be in force
on and after the twentieth day following its publication, if no date is fixed in the ordinance.

Section 43 of the Local Tax Code directs:


Within ten days after their approval, certified true copies of all provincial, city, municipal and
barrio ordinances levying or imposing taxes, fees or other charges shall be published for three
consecutive days in a newspaper or publication widely circulated within the jurisdiction of the local
government, or posted in the local legislative hall or premises and in two other conspicuous places
within the territorial jurisdiction of the local government. In either case, copies of all provincial, city,
municipal and barrio ordinances shall be furnished the treasurers of the respective component and
mother units of a local government for dissemination.

In other words, while the Revised Charter of the City of Manila requires publication before the enactment of the
ordinance and after the approval thereof in two daily newspapers of general circulation in the city, the Local Tax Code
only prescribes for publication after the approval of "ordinances levying or imposing taxes, fees or other charges"
either in a newspaper or publication widely circulated within the jurisdiction of the local government or by posting
the ordinance in the local legislative hall or premises and in two other conspicuous places within the territorial
jurisdiction of the local government. Petitioners' compliance with the Local Tax Code rather than with the Revised
Charter of the City spawned this litigation.

There is no question that the Revised Charter of the City of Manila is a special act since it relates only to the City of
Manila, whereas the Local Tax Code is a general law because it applies universally to all local governments.
Blackstone defines general law as a universal rule affecting the entire community and special law as one relating to
particular persons or things of a class. 1 And the rule commonly said is that a prior special law is not ordinarily
repealed by a subsequent general law. The fact that one is special and the other general creates a presumption that
the special is to be considered as remaining an exception of the general, one as a general law of the land, the other
as the law of a particular case. 2 However, the rule readily yields to a situation where the special statute refers to a
subject in general, which the general statute treats in particular. The exactly is the circumstance obtaining in the case
at bar. Section 17 of the Revised Charter of the City of Manila speaks of "ordinance" in general, i.e., irrespective of
the nature and scope thereof, whereas, Section 43 of the Local Tax Code relates to "ordinances levying or imposing
taxes, fees or other charges" in particular. In regard, therefore, to ordinances in general, the Revised Charter of the
City of Manila is doubtless dominant, but, that dominant force loses its continuity when it approaches the realm of
"ordinances levying or imposing taxes, fees or other charges" in particular. There, the Local Tax Code controls. Here,
as always, a general provision must give way to a particular provision. 3 Special provision governs. 4 This is especially
true where the law containing the particular provision was enacted later than the one containing the general
provision. The City Charter of Manila was promulgated on June 18, 1949 as against the Local Tax Code which was
decreed on June 1, 1973. The law-making power cannot be said to have intended the establishment of conflicting
and hostile systems upon the same subject, or to leave in force provisions of a prior law by which the new will of the
legislating power may be thwarted and overthrown. Such a result would render legislation a useless and Idle
ceremony, and subject the law to the reproach of uncertainty and unintelligibility. 5

The case of City of Manila v. Teotico 6 is opposite. In that case, Teotico sued the City of Manila for damages arising
from the injuries he suffered when he fell inside an uncovered and unlighted catchbasin or manhole on P. Burgos
Avenue. The City of Manila denied liability on the basis of the City Charter (R.A. 409) exempting the City of Manila
from any liability for damages or injury to persons or property arising from the failure of the city officers to enforce
the provisions of the charter or any other law or ordinance, or from negligence of the City Mayor, Municipal Board,
or other officers while enforcing or attempting to enforce the provisions of the charter or of any other law or
ordinance. Upon the other hand, Article 2189 of the Civil Code makes cities liable for damages for the death of, or
injury suffered by any persons by reason of the defective condition of roads, streets, bridges, public buildings, and
other public works under their control or supervision. On review, the Court held the Civil Code controlling. It is true
that, insofar as its territorial application is concerned, the Revised City Charter is a special law and the subject matter
of the two laws, the Revised City Charter establishes a general rule of liability arising from negligence in general,
regardless of the object thereof, whereas the Civil Code constitutes a particular prescription for liability due to
defective streets in particular. In the same manner, the Revised Charter of the City prescribes a rule for the
publication of "ordinance" in general, while the Local Tax Code establishes a rule for the publication of "ordinance
levying or imposing taxes fees or other charges in particular.

In fact, there is no rule which prohibits the repeal even by implication of a special or specific act by a general or broad
one. 7 A charter provision may be impliedly modified or superseded by a later statute, and where a statute is
controlling, it must be read into the charter notwithstanding any particular charter provision. 8 A subsequent general
law similarly applicable to all cities prevails over any conflicting charter provision, for the reason that a charter must
not be inconsistent with the general laws and public policy of the state. 9 A chartered city is not an independent
sovereignty. The state remains supreme in all matters not purely local. Otherwise stated, a charter must yield to the
constitution and general laws of the state, it is to have read into it that general law which governs the municipal
corporation and which the corporation cannot set aside but to which it must yield. When a city adopts a charter, it in
effect adopts as part of its charter general law of such character. 10

2. The principle of exhaustion of administrative remedies is strongly asserted by petitioners as having been violated
by private respondent in bringing a direct suit in court. This is because Section 47 of the Local Tax Code provides that
any question or issue raised against the legality of any tax ordinance, or portion thereof, shall be referred for opinion
to the city fiscal in the case of tax ordinance of a city. The opinion of the city fiscal is appealable to the Secretary of
Justice, whose decision shall be final and executory unless contested before a competent court within thirty (30)
days. But, the petition below plainly shows that the controversy between the parties is deeply rooted in a pure
question of law: whether it is the Revised Charter of the City of Manila or the Local Tax Code that should govern the
publication of the tax ordinance. In other words, the dispute is sharply focused on the applicability of the Revised City
Charter or the Local Tax Code on the point at issue, and not on the legality of the imposition of the tax. Exhaustion of
administrative remedies before resort to judicial bodies is not an absolute rule. It admits of exceptions. Where the
question litigated upon is purely a legal one, the rule does not apply. 11 The principle may also be disregarded when it
does not provide a plain, speedy and adequate remedy. It may and should be relaxed when its application may cause
great and irreparable damage. 12

3. It is maintained by private respondent that the subject ordinance is not a "tax ordinance," because the imposition
of rentals, permit fees, tolls and other fees is not strictly a taxing power but a revenue-raising function, so that the
procedure for publication under the Local Tax Code finds no application. The pretense bears its own marks of fallacy.
Precisely, the raising of revenues is the principal object of taxation. Under Section 5, Article XI of the New
Constitution, "Each local government unit shall have the power to create its own sources of revenue and to levy
taxes, subject to such provisions as may be provided by law." 13 And one of those sources of revenue is what the Local
Tax Code points to in particular: "Local governments may collect fees or rentals for the occupancy or use of public
markets and premises * * *." 14 They can provide for and regulate market stands, stalls and privileges, and, also, the
sale, lease or occupancy thereof. They can license, or permit the use of, lease, sell or otherwise dispose of stands,
stalls or marketing privileges. 15

It is a feeble attempt to argue that the ordinance violates Presidential Decree No. 7, dated September 30, 1972,
insofar as it affects livestock and animal products, because the said decree prescribes the collection of other fees and
charges thereon "with the exception of ante-mortem and post-mortem inspection fees, as well as the delivery,
stockyard and slaughter fees as may be authorized by the Secretary of Agriculture and Natural Resources." 16Clearly,
even the exception clause of the decree itself permits the collection of the proper fees for livestock. And the Local
Tax Code (P.D. 231, July 1, 1973) authorizes in its Section 31: "Local governments may collect fees for the slaughter of
animals and the use of corrals * * * "

4. The non-participation of the Market Committee in the enactment of Ordinance No. 7522 supposedly in accordance
with Republic Act No. 6039, an amendment to the City Charter of Manila, providing that "the market committee shall
formulate, recommend and adopt, subject to the ratification of the municipal board, and approval of the mayor,
policies and rules or regulation repealing or maneding existing provisions of the market code" does not infect the
ordinance with any germ of invalidity. 17 The function of the committee is purely recommendatory as the underscored
phrase suggests, its recommendation is without binding effect on the Municipal Board and the City Mayor. Its prior
acquiescence of an intended or proposed city ordinance is not a condition sine qua non before the Municipal Board
could enact such ordinance. The native power of the Municipal Board to legislate remains undisturbed even in the
slightest degree. It can move in its own initiative and the Market Committee cannot demur. At most, the Market
Committee may serve as a legislative aide of the Municipal Board in the enactment of city ordinances affecting the
city markets or, in plain words, in the gathering of the necessary data, studies and the collection of consensus for the
proposal of ordinances regarding city markets. Much less could it be said that Republic Act 6039 intended to delegate
to the Market Committee the adoption of regulatory measures for the operation and administration of the city
markets. Potestas delegata non delegare potest.

5. Private respondent bewails that the market stall fees imposed in the disputed ordinance are diverted to the
exclusive private use of the Asiatic Integrated Corporation since the collection of said fees had been let by the City of
Manila to the said corporation in a "Management and Operating Contract." The assumption is of course saddled on
erroneous premise. The fees collected do not go direct to the private coffers of the corporation. Ordinance No. 7522
was not made for the corporation but for the purpose of raising revenues for the city. That is the object it serves. The
entrusting of the collection of the fees does not destroy the public purpose of the ordinance. So long as the purpose
is public, it does not matter whether the agency through which the money is dispensed is public or private. The right
to tax depends upon the ultimate use, purpose and object for which the fund is raised. It is not dependent on the
nature or character of the person or corporation whose intermediate agency is to be used in applying it. The people
may be taxed for a public purpose, although it be under the direction of an individual or private corporation. 18

Nor can the ordinance be stricken down as violative of Section 3(e) of the Anti-Graft and Corrupt Practices Act
because the increased rates of market stall fees as levied by the ordinance will necessarily inure to the unwarranted
benefit and advantage of the corporation. 19 We are concerned only with the issue whether the ordinance in question
is intra vires. Once determined in the affirmative, the measure may not be invalidated because of consequences that
may arise from its enforcement. 20

ACCORDINGLY, the decision of the court below is hereby reversed and set aside. Ordinance No. 7522 of the City of
Manila, dated June 15, 1975, is hereby held to have been validly enacted. No. costs.

SO ORDERED.

CARLOS BALACUIT vs. CFI-AGUSAN DEL NORTE AND BUTUAN CITY [June 30, 1988]
At issue in the petition for review before Us is the validity and constitutionality of Ordinance No. 640 passed by the
Municipal Board of the City of Butuan on April 21, 1969, the title and text of which are reproduced below:

ORDINANCE--640

ORDINANCE PENALIZING ANY PERSON, GROUP OF PERSONS, ENTITY OR CORPORATION ENGAGED IN


THE BUSINESS OF SELLING ADMISSION TICKETS TO ANY MOVIE OR OTHER PUBLIC EXHIBITIONS,
GAMES, CONTESTS OR OTHER PERFORMANCES TO REQUIRE CHILDREN BETWEEN SEVEN (7) AND
TWELVE (12) YEARS OF AGE TO PAY FULL PAYMENT FOR TICKETS INTENDED FOR ADULTS BUT SHOULD
CHARGE ONLY ONE-HALF OF THE SAID TICKET

xxx xxx xxx

Be it ordained by the Municipal Board of the City of Butuan in session assembled, that:

SECTION 1—It shall be unlawful for any person, group of persons, entity, or corporation engaged in
the business of selling admission tickets to any movie or other public exhibitions, games, contests, or
other performances to require children between seven (7) and twelve (12) years of age to pay full
payment for admission tickets intended for adults but should charge only one-half of the value of the
said tickets.

SECTION 2—Any person violating the provisions of this Ordinance shall upon conviction be punished
by a fine of not less than TWO HUNDRED PESOS (P200.00) but not more than SIX HUNDRED PESOS
(P600.00) or an imprisonment of not less than TWO (2) MONTHS or not more than SIX (6) MONTHS
or both such firm and imprisonment in the discretion of the Court.

If the violator be a firm or corporation the penalty shall be imposed upon the Manager, Agent or
Representative of such firm or corporation.

SECTION 3—This ordinance shall take effect upon its approval.

Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel managers of the Maya and Dalisay Theaters, the
Crown Theater, and the Diamond Theater, respectively. Aggrieved by the effect of Ordinance No. 640, they filed a
complaint before the Court of First Instance of Agusan del Norte and Butuan City docketed as Special Civil Case No.
237 on June 30, 1969 praying, inter alia, that the subject ordinance be declared unconstitutional and, therefore, void
and unenforceable. 1

Upon motion of the petitioners, 2 a temporary restraining order was issued on July 14, 1969 by the court a quo
enjoining the respondent City of Butuan and its officials from enforcing Ordinance No. 640. 3 On July 29, 1969,
respondents filed their answer sustaining the validity of the ordinance. 4

On January 30, 1973, the litigants filed their stipulation of facts. 5 On June 4, 1973, the respondent court rendered its
decision, 6 the dispositive part of which reads:

IN THE LIGHT OF ALL THE FOREGOING, the Court hereby adjudges in favor of the respondents and
against the petitioners, as follows:

1. Declaring Ordinance No. 640 of the City of Butuan constitutional and valid: Provided, however,
that the fine for a single offense shall not exceed TWO HUNDRED PESOS, as prescribed in the
aforequoted Section 15 (nn) of Rep. Act No. 523;

2. Dissolving the restraining order issued by this Court; and;

3. Dismissing the complaint, with costs against the petitioners.

4. SO ORDERED. 7
Petitioners filed their motion for reconsideration 8 of the decision of the court a quo which was denied in a resolution
of the said court dated November 10, 1973. 9

Hence, this petition.

Petitioners attack the validity and constitutionality of Ordinance No. 640 on the grounds that it is ultra vires and an
invalid exercise of police power.

Petitioners contend that Ordinance No. 640 is not within the power of' the Municipal Board to enact as provided for
in Section 15(n) of Republic Act No. 523, the Charter of the City of Butuan, which states:

Sec. 15. General powers and duties of the Board — Except as otherwise provided by law, and subject
to the conditions and limitations thereof, the Municipal Board shall have the following legislative
powers:

xxx xxx xxx

(n) To regulate and fix the amount of the license fees for the following; . . . theaters, theatrical
performances, cinematographs, public exhibitions and all other performances and places of
amusements ...

xxx xxx xxx

Respondent City of Butuan, on the other hand, attempts to justify the enactment of the ordinance by invoking the
general welfare clause embodied in Section 15 (nn) of the cited law, which provides:

(nn) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the
furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort,
convenience, and general welfare of the city and its inhabitants, and such others as may be
necessary to carry into effect and discharge the powers and duties conferred by this Act, and to fix
the penalties for the violation of the ordinances, which shall not exceed a two hundred peso fine or
six months imprisonment, or both such fine and imprisonment, for a single offense.

We can see from the aforecited Section 15(n) that the power to regulate and fix the amount of license fees for
theaters, theatrical performances, cinematographs, public exhibitions and other places of amusement has been
expressly granted to the City of Butuan under its charter. But the question which needs to be resolved is this: does
this power to regulate include the authority to interfere in the fixing of prices of admission to these places of
exhibition and amusement whether under its general grant of power or under the general welfare clause as invoked
by the City?

This is the first time this Court is confronted with the question of direct interference by the local government with
the operation of theaters, cinematographs and the like to the extent of fixing the prices of admission to these places.
Previous decisions of this Court involved the power to impose license fees upon businesses of this nature as a
corollary to the power of the local government to regulate them. Ordinances which required moviehouses or
theaters to increase the price of their admission tickets supposedly to cover the license fees have been held to be
invalid for these impositions were considered as not merely license fees but taxes for purposes of revenue and not
regulation which the cities have no power to exact, 10 unless expressly granted by its charter. 11

Applying the ruling in Kwong Sing v. City of Manila, 12 where the word "regulate" was interpreted to include the
power to control, to govern and to restrain, it would seem that under its power to regulate places of exhibitions and
amusement, the Municipal Board of the City of Butuan could make proper police regulations as to the mode in which
the business shall be exercised.

While in a New York case, 13 an ordinance which regulates the business of selling admission tickets to public
exhibitions or performances by virtue of the power of cities under the General City Law "to maintain order, enforce
the laws, protect property and preserve and care for the safety, health, comfort and general welfare of the
inhabitants of the city and visitors thereto; and for any of said purposes, to regulate and license occupations" was
considered not to be within the scope of any duty or power implied in the charter. It was held therein that the power
of regulation of public exhibitions and places of amusement within the city granted by the charter does not carry
with it any authority to interfere with the price of admission to such places or the resale of tickets or tokens of
admission.

In this jurisdiction, it is already settled that the operation of theaters, cinematographs and other places of public
exhibition are subject to regulation by the municipal council in the exercise of delegated police power by the local
government. 14 Thus, in People v. Chan, 15 an ordinance of the City of Manila prohibiting first run cinematographs
from selling tickets beyond their seating capacity was upheld as constitutional for being a valid exercise of police
power. Still in another case, 16 the validity of an ordinance of the City of Bacolod prohibiting admission of two or more
persons in moviehouses and other amusement places with the use of only one ticket was sustained as a valid
regulatory police measure not only in the interest of preventing fraud in so far as municipal taxes are concerned but
also in accordance with public health, public safety, and the general welfare.

The City of Butuan, apparently realizing that it has no authority to enact the ordinance in question under its power to
regulate embodied in Section 15(n), now invokes the police power as delegated to it under the general welfare clause
to justify the enactment of said ordinance.

To invoke the exercise of police power, not only must it appear that the interest of the public generally requires an
interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals. 17 The legislature may not, under the guise of protecting the
public interest, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon
lawful occupations. In other words, the determination as to what is a proper exercise of its police power is not final
or conclusive, but is subject to the supervision of the courts. 18

Petitioners maintain that Ordinance No. 640 violates the due process clause of the Constitution for being oppressive,
unfair, unjust, confiscatory, and an undue restraint of trade, and violative of the right of persons to enter into
contracts, considering that the theater owners are bound under a contract with the film owners for just admission
prices for general admission, balcony and lodge.

In Homeowners' Association of the Philippines, Inc. v. Municipal Board of the City of Manila, 19 this Court held:

The authority of municipal corporations to regulate is essentially police power, Inasmuch as the same
generally entails a curtailment of the liberty, the rights and/or the property of persons, which are
protected and even guaranteed by the Constitution, the exercise of police power is necessarily
subject to a qualification, limitation or restriction demanded by the regard, the respect and the
obedience due to the prescriptions of the fundamental law, particularly those forming part of the
Constitution of Liberty, otherwise known as the Bill of Rights — the police power measure must be
reasonable. In other words, individual rights may be adversely affected by the exercise of police
power to the extent only — and only to the extent--that may be fairly required by the legitimate
demands of public interest or public welfare.

What is the reason behind the enactment of Ordinance No. 640?

A reading of the minutes of the regular session of the Municipal Board when the ordinance in question was passed
shows that a certain Councilor Calo, the proponent of the measure, had taken into account the complaints of parents
that for them to pay the full price of admission for their children is too financially burdensome.

The trial court advances the view that "even if the subject ordinance does not spell out its raison d'etre in all
probability the respondents were impelled by the awareness that children are entitled to share in the joys of their
elders, but that considering that, apart from size, children between the ages of seven and twelve cannot fully grasp
the nuance of movies or other public exhibitions, games, contests or other performances, the admission prices with
respect to them ought to be reduced. 19a
We must bear in mind that there must be public necessity which demands the adoption of proper measures to
secure the ends sought to be attained by the enactment of the ordinance, and the large discretion is necessarily
vested in the legislative authority to determine not only what the interests of the public require, but what measures
are necessary for the protection of such interests. 20 The methods or means used to protect the public health, morals,
safety or welfare, must have some relation to the end in view, for under the guise of the police power, personal rights
and those pertaining to private property will not be permitted to be arbitralily invaded by the legislative
department. 21

We agree with petitioners that the ordinance is not justified by any necessity for the public interest. The police power
legislation must be firmly grounded on public interest and welfare, and a reasonable relation must exist between
purposes and means.22 The evident purpose of the ordinance is to help ease the burden of cost on the part of
parents who have to shell out the same amount of money for the admission of their children, as they would for
themselves, A reduction in the price of admission would mean corresponding savings for the parents; however, the
petitioners are the ones made to bear the cost of these savings. The ordinance does not only make the petitioners
suffer the loss of earnings but it likewise penalizes them for failure to comply with it. Furthermore, as petitioners
point out, there will be difficulty in its implementation because as already experienced by petitioners since the
effectivity of the ordinance, children over 12 years of age tried to pass off their age as below 12 years in order to avail
of the benefit of the ordinance. The ordinance does not provide a safeguard against this undesirable practice and as
such, the respondent City of Butuan now suggests that birth certificates be exhibited by movie house patrons to
prove the age of children. This is, however, not at all practicable. We can see that the ordinance is clearly
unreasonable if not unduly oppressive upon the business of petitioners. Moreover, there is no discernible relation
between the ordinance and the promotion of public health, safety, morals and the general welfare.

Respondent City of Butuan claims that it was impelled to protect the youth from the pernicious practice of movie
operators and other public exhibitions promoters or the like of demanding equal price for their admission tickets
along with the adults. This practice is allegedly repugnant and unconscionable to the interest of the City in the
furtherance of the prosperity, peace, good order, comfort, convenience and the general well-being of its inhabitants.

There is nothing pernicious in demanding equal price for both children and adults. The petitioners are merely
conducting their legitimate businesses. The object of every business entrepreneur is to make a profit out of his
venture. There is nothing immoral or injurious in charging the same price for both children and adults. In fact, no
person is under compulsion to purchase a ticket. It is a totally voluntary act on the part of the purchaser if he buys a
ticket to such performances.

Respondent City of Butuan claims that Ordinance No. 640 is reasonable and necessary to lessen the economic
burden of parents whose minor children are lured by the attractive nuisance being maintained by the petitioners.
Respondent further alleges that by charging the full price, the children are being exploited by movie house operators.
We fail to see how the children are exploited if they pay the full price of admission. They are treated with the same
quality of entertainment as the adults. The supposition of the trial court that because of their age children cannot
fully grasp the nuances of such entertainment as adults do fails to convince Us that the reduction in admission ticket
price is justifiable. In fact, by the very claim of respondent that movies and the like are attractive nuisances, it is
difficult to comprehend why the municipal board passed the subject ordinance. How can the municipal authorities
consider the movies an attractive nuisance and yet encourage parents and children to patronize them by lowering
the price of admission for children? Perhaps, there is some ,truth to the argument of petitioners that Ordinance No.
640 is detrimental to the public good and the general welfare of society for it encourages children of tender age to
frequent the movies, rather than attend to their studies in school or be in their homes.

Moreover, as a logical consequence of the ordinance, movie house and theater operators will be discouraged from
exhibiting wholesome movies for general patronage, much less children's pictures if only to avoid compliance with
the ordinance and still earn profits for themselves. For after all, these movie house and theater operators cannot be
compelled to exhibit any particular kind of film except those films which may be dictated by public demand and
those which are restricted by censorship laws. So instead of children being able to share in the joys of their elders as
envisioned by the trial court, there will be a dearth of wholesome and educational movies for them to enjoy.
There are a number of cases decided by the Supreme Court and the various state courts of the United States which
upheld the right of the proprietor of a theater to fix the price of an admission ticket as against the right of the state
to interfere in this regard and which We consider applicable to the case at bar.

A theater ticket has been described to be either a mere license, revocable at the will of the proprietor of the theater
or it may be evidence of a contract whereby, for a valuable consideration, the purchaser has acquired the right to
enter the theater and observe the performance on condition that he behaves properly. 23 Such ticket, therefore,
represents a right, Positive or conditional, as the case may be, according to the terms of the original contract of sale.
This right is clearly a right of property. The ticket which represents that right is also, necessarily, a species of property.
As such, the owner thereof, in the absence of any condition to the contrary in the contract by which he obtained it,
has the clear right to dispose of it, to sell it to whom he pleases and at such price as he can obtain. 24 So that an act
prohibiting the sale of tickets to theaters or other places of amusement at more than the regular price was held
invalid as conflicting with the state constitution securing the right of property. 25

In Collister vs. Hayman, 26 it was held:

The defendants were conducting a private business, which, even if clothed with a public interest, was
without a franchise to accommodate the public, and they had the right to control it, the same as the
proprietors of any other business, subject to such obligations as were placed upon them by statute.
Unlike a carrier of passengers, for instance, with a franchise from the state, and hence under
obligation to transport anyone who applies and to continue the business year in and year out, the
proprietors of a theater can open and close their place at will, and no one can make a lawful
complaint. They can charge what they choose for admission to their theater. They can limit the
number admitted. They can refuse to sell tickets and collect the price of admission at the door. They
can preserve order and enforce quiet while the performance is going on. They can make it a part of
the contract and condition of admission, by giving due notice and printing the condition in the ticket
that no one shall be admitted under 21 years of age, or that men only or women only shall be
admitted, or that a woman cannot enter unless she is accompanied by a male escort, and the like.
The proprietors, in the control of their business, may regulate the terms of admission in any
reasonable way. If those terms are not satisfactory, no one is obliged to buy a ticket or make the
contract. If the terms are satisfactory, and the contract is made, the minds of the parties meet upon
the condition, and the purchaser impliedly promises to perform it.

In Tyson and Bro. — United Theater Ticket Officers, Inc. vs. Banton, 27 the United States Supreme Court held:

... And certainly a place of entertainment is in no legal sense a public utility; and quite as certainly, its
activities are not such that their enjoyment can be regarded under any conditions from the point of
view of an emergency.

The interest of the public in theaters and other places of entertainment may be more nearly, and
with better reason, assimilated to the like interest in provision stores and markets and in the rental of
houses and apartments for residence purposes; although in importance it fails below such an
interest in the proportion that food and shelter are of more moment than amusement or instruction.
As we have shown there is no legislative power to fix the prices of provisions or clothing, or the
rental charges for houses and apartments, in the absence of some controlling emergency; and we are
unable to perceive any dissimilarities of such quality or degree as to justify a different rule in respect
of amusements and entertainment ...

We are in consonance with the foregoing observations and conclusions of American courts. In this jurisdiction,
legislation had been passed controlling the prices of goods commodities and drugs during periods of
emergency, 28limiting the net profits of public utility 29 as well as regulating rentals of residential apartments for a
limited period, 30as a matter of national policy in the interest of public health and safety, economic security and the
general welfare of the people. And these laws cannot be impugned as unconstitutional for being violative of the due
process clause.
However, the same could not be said of theaters, cinematographs and other exhibitions. In no sense could these
businesses be considered public utilities. The State has not found it appropriate as a national policy to interfere with
the admission prices to these performances. This does not mean however, that theaters and exhibitions are not
affected with public interest even to a certain degree. Motion pictures have been considered important both as a
medium for the communication of Ideas and expression of the artistic impulse. Their effects on the perceptions by
our people of issues and public officials or public figures as well as the prevailing cultural traits are
considerable. 31People of all ages flock to movie houses, games and other public exhibitions for recreation and
relaxation. The government realizing their importance has seen it fit to enact censorship laws to regulate the movie
industry. 32 Their aesthetic entertainment and even educational values cannot be underestimated. Even police
measures regulating the operation of these businesses have been upheld in order to safeguard public health and
safety.

Nonetheless, as to the question of the subject ordinance being a valid exercise of police power, the same must be
resolved in the negative. While it is true that a business may be regulated, it is equally true that such regulation must
be within the bounds of reason, that is, the regulatory ordinance must be reasonable, and its provisions cannot be
oppressive amounting to an arbitrary interference with the business or calling subject of regulation. A lawful business
or calling may not, under the guise of regulation, be unreasonably interfered with even by the exercise of police
power.33 A police measure for the regulation of the conduct, control and operation of a business should not encroach
upon the legitimate and lawful exercise by the citizens of their property rights. 34 The right of the owner to fix a price
at which his property shall be sold or used is an inherent attribute of the property itself and, as such, within the
protection of the due process clause."" Hence, the proprietors of a theater have a right to manage their property in
their own way, to fix what prices of admission they think most for their own advantage, and that any person who did
not approve could stay away. 36

Respondent City of Butuan argues that the presumption is always in favor of the validity of the ordinance. This maybe
the rule but it has already been held that although the presumption is always in favor of the validity or
reasonableness of the ordinance, such presumption must nevertheless be set aside when the invalidity or
unreasonableness appears on the face of the ordinance itself or is established by proper evidence. 37 The exercise of
police power by the local government is valid unless it contravenes the fundamental law of the land, or an act of the
legislature, or unless it is against public policy or is unreasonable, oppressive, partial, discriminating or in derogation
of a common right.38

Ordinance No. 640 clearly invades the personal and property rights of petitioners for even if We could assume that,
on its face, the interference was reasonable, from the foregoing considerations, it has been fully shown that it is an
unwarranted and unlawful curtailment of the property and personal rights of citizens. For being unreasonable and an
undue restraint of trade, it cannot, under the guise of exercising police power, be upheld as valid.

WHEREFORE, the decision of the trial court in Special Civil Case No. 237 is hereby REVERSED and SET ASIDE and a
new judgment is hereby rendered declaring Ordinance No. 640 unconstitutional and, therefore, null and void. This
decision is immediately executory.

SO ORDERED.
JOSE LINA, JR., SANGGUNIANG PANLALAWIGAN OF LAGUNA vs. FRANCISCO PAÑO [August 30, 2001]

For our resolution is a petition for review on certiorari seeking the reversal of the decision 1 dated February 10, 1997
of the Regional Trial Court of San Pedro, Laguna, Branch 93, enjoining petitioners from implementing or
enforcing Kapasiyahan Bilang 508, Taon 1995, of the Sangguniang Panlalawigan of Laguna and its subsequent Order
2 dated April 21, 1997 denying petitioners' motion for reconsideration.

On December 29, 1995, respondent Tony Calvento was appointed agent by the Philippine Charity Sweepstakes Office
(PCSO) to install Terminal OM 20 for the operation of lotto. He asked Mayor Calixto Cataquiz, Mayor of San Pedro,
Laguna, for a mayor's permit to open the lotto outlet. This was denied by Mayor Cataquiz in a letter dated February
19, 1996. The ground for said denial was an ordinance passed by the Sangguniang Panlalawigan of Laguna
entitled Kapasiyahan Blg. 508, T. 1995 which was issued on September 18, 1995. The ordinance reads:

ISANG KAPASIYAHAN TINUTUTULAN ANG MGA "ILLEGAL GAMBLING" LALO NA ANG LOTTO SA LALAWIGAN
NG LAGUNA

SAPAGKA'T, ang sugal dito sa lalawigan ng Laguna ay talamak na;

SAPAGKA'T, ang sugal ay nagdudulot ng masasamang impluwensiya lalo't higit sa mga kabataan;

KUNG KAYA'T DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M. Unico at Kgg. Kgd. Gat-Ala A. Alatiit,
pinangalawahan ni Kgg. Kgd. Meliton C. Larano at buong pagkakaisang sinangayunan ng lahat ng dumalo sa
pulong;

IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN ang ano mang uri ng sugal dito sa lalawigan
ng Laguna lalo't higit ang Lotto;

IPINASIYA PA RIN na hilingin tulad ng dito ay hinihiling sa Panlalawigang pinuno ng Philippine National Police
(PNP) Col. [illegible] na mahigpit na pag-ibayuhin ang pagsugpo sa lahat ng uri ng illegal na sugal sa buong
lalawigan ng Laguna lalo na ang "Jueteng". 3

As a result of this resolution of denial, respondent Calvento filed a complaint for declaratory relief with prayer for
preliminary injunction and temporary restraining order. In the said complaint, respondent Calvento asked the
Regional Trial Court of San Pedro Laguna, Branch 93, for the following reliefs: (1) a preliminary injunction or
temporary restraining order, ordering the defendants to refrain from implementing or enforcing Kapasiyahan Blg.
508, T. 1995; (2) an order requiring Hon. Municipal Mayor Calixto R Cataquiz to issue a business permit for the
operation of a lotto outlet; and (3) an order annulling or declaring as invalid Kapasiyahan Blg. 508, T. 1995.

On February 10, 1997, the respondent judge, Francisco Dizon Paño, promulgated his decision enjoining the
petitioners from implementing or enforcing resolution or Kapasiyahan Blg. 508, T. 1995. The dispositive portion of
said decision reads:

WHEREFORE, premises considered, defendants, their agents and representatives are hereby enjoined from
implementing or enforcing resolution or kapasiyahan blg. 508, T. 1995 of the Sangguniang Panlalawigan ng
Laguna prohibiting the operation of the lotto in the province of Laguna.

SO ORDERED.4

Petitioners filed a motion for reconsideration which was subsequently denied in an Order dated April 21, 1997, which
reads:

Acting on the Motion for Reconsideration filed by defendants Jose D. Lina, Jr. and the Sangguniang
Panlalawigan of Laguna, thru counsel, with the opposition filed by plaintiff's counsel and the comment
thereto filed by counsel for the defendants which were duly noted, the Court hereby denies the motion for
lack of merit.
SO ORDERED.5

On May 23, 1997, petitioners filed this petition alleging that the following errors were committed by the respondent
trial court:

THE TRIAL COURT ERRED IN ENJOINING THE PETITIONERS FROM IMPLEMENTING KAPASIYAHAN BLG. 508, T.
1995 OF THE SANGGUNIANG PANLALAWIGAN OF LAGUNA PROHIBITING THE OPERATION OF THE LOTTO IN
THE PROVINCE OF LAGUNA.

II

THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT POSITED BY THE PETITIONERS THAT BEFORE ANY
GOVERNMENT PROJECT OR PROGRAM MAY BE IMPLEMENTED BY THE NATIONAL AGENCIES OR OFFICES,
PRIOR CONSULTATION AND APPROVAL BY THE LOCAL GOVERNMENT UNITS CONCERNED AND OTHER
CONCERNED SECTORS IS REQUIRED.

Petitioners contend that the assailed resolution is a valid policy declaration of the Provincial Government of Laguna
of its vehement objection to the operation of lotto and all forms of gambling. It is likewise a valid exercise of the
provincial government's police power under the General Welfare Clause of Republic Act 7160, otherwise known as
the Local Government Code of 1991.6 They also maintain that respondent's lotto operation is illegal because no prior
consultations and approval by the local government were sought before it was implemented contrary to the express
provisions of Sections 2 (c) and 27 of R.A. 7160. 7

For his part, respondent Calvento argues that the questioned resolution is, in effect, a curtailment of the power of
the state since in this case the national legislature itself had already declared lotto as legal and permitted its
operations around the country. 8 As for the allegation that no prior consultations and approval were sought from
the sangguniang panlalawigan of Laguna, respondent Calvento contends this is not mandatory since such a
requirement is merely stated as a declaration of policy and not a self-executing provision of the Local Government
Code of 1991.9 He also states that his operation of the lotto system is legal because of the authority given to him by
the PCSO, which in turn had been granted a franchise to operate the lotto by Congress. 10

The Office of the Solicitor General (OSG), for the State, contends that the Provincial Government of Laguna has no
power to prohibit a form of gambling which has been authorized by the national government. 11 He argues that this is
based on the principle that ordinances should not contravene statutes as municipal governments are merely agents
of the national government. The local councils exercise only delegated legislative powers which have been conferred
on them by Congress. This being the case, these councils, as delegates, cannot be superior to the principal or exercise
powers higher than those of the latter. The OSG also adds that the question of whether gambling should be
permitted is for Congress to determine, taking into account national and local interests. Since Congress has allowed
the PCSO to operate lotteries which PCSO seeks to conduct in Laguna, pursuant to its legislative grant of authority,
the province's Sangguniang Panlalawigan cannot nullify the exercise of said authority by preventing something
already allowed by Congress.

The issues to be resolved now are the following: (1) whether Kapasiyahan Blg. 508, T. 1995 of the Sangguniang
Panlalawigan of Laguna and the denial of a mayor's permit based thereon are valid; and (2) whether prior
consultations and approval by the concerned Sanggunian are needed before a lotto system can be operated in a
given local government unit.

The entire controversy stemmed from the refusal of Mayor Cataquiz to issue a mayor's permit for the operation of a
lotto outlet in favor of private respondent. According to the mayor, he based his decision on an existing ordinance
prohibiting the operation of lotto in the province of Laguna. The ordinance, however, merely states the "objection" of
the council to the said game. It is but a mere policy statement on the part of the local council, which is not self-
executing. Nor could it serve as a valid ground to prohibit the operation of the lotto system in the province of Laguna.
Even petitioners admit as much when they stated in their petition that:
5.7. The terms of the Resolution and the validity thereof are express and clear. The Resolution is a policy
declaration of the Provincial Government of Laguna of its vehement opposition and/or objection to the
operation of and/or all forms of gambling including the Lotto operation in the Province of Laguna. 12

As a policy statement expressing the local government's objection to the lotto, such resolution is valid. This is part of
the local government's autonomy to air its views which may be contrary to that of the national government's.
However, this freedom to exercise contrary views does not mean that local governments may actually enact
ordinances that go against laws duly enacted by Congress. Given this premise, the assailed resolution in this case
could not and should not be interpreted as a measure or ordinance prohibiting the operation of lotto.

The game of lotto is a game of chance duly authorized by the national government through an Act of Congress.
Republic Act 1169, as amended by Batas Pambansa Blg. 42, is the law which grants a franchise to the PCSO and
allows it to operate the lotteries. The pertinent provision reads:

SECTION 1. The Philippine Charity Sweepstakes Office. — The Philippine Charity Sweepstakes Office,
hereinafter designated the Office, shall be the principal government agency for raising and providing for
funds for health programs, medical assistance and services and charities of national character, and as such
shall have the general powers conferred in section thirteen of Act Numbered One thousand four hundred
fifty-nine, as amended, and shall have the authority:

A. To hold and conduct charity sweepstakes races, lotteries, and other similar activities, in such frequency
and manner, as shall be determined, and subject to such rules and regulations as shall be promulgated by the
Board of Directors.

This statute remains valid today. While lotto is clearly a game of chance, the national government deems it wise and
proper to permit it. Hence, the Sangguniang Panlalawigan of Laguna, a local government unit, cannot issue a
resolution or an ordinance that would seek to prohibit permits. Stated otherwise, what the national legislature
expressly allows by law, such as lotto, a provincial board may not disallow by ordinance or resolution.

In our system of government, the power of local government units to legislate and enact ordinances and resolutions
is merely a delegated power coming from Congress. As held in Tatel vs. Virac,13 ordinances should not contravene an
existing statute enacted by Congress. The reasons for this is obvious, as elucidated in Magtajas v. Pryce Properties
Corp.14

Municipal governments are only agents of the national government. Local councils exercise only delegated
legislative powers conferred upon them by Congress as the national lawmaking body. The delegate cannot be
superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the
local government units can undo the acts of Congress, from which they have derived their power in the first
place, and negate by mere ordinance the mandate of the statute.

Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It
breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it
may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the
legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong,
sweep from existence all of the municipal corporations in the state, and the corporation could not prevent it.
We know of no limitation on the right so far as the corporation themselves are concerned. They are, so to
phrase it, the mere tenants at will of the legislature (citing Clinton vs. Ceder Rapids, etc. Railroad Co., 24 Iowa
455).

Nothing in the present constitutional provision enhancing local autonomy dictates a different conclusion.

The basic relationship between the national legislature and the local government units has not been
enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without
meaning to detract from that policy, we here confirm that Congress retains control of the local government
units although in significantly reduced degree now than under our previous Constitutions. The power to
create still includes the power to destroy. The power to grant still includes the power to withhold or recall.
True, there are certain notable innovations in the Constitution, like the direct conferment on the local
government units of the power to tax (citing Art. X, Sec. 5, Constitution), which cannot now be withdrawn by
mere statute. By and large, however, the national legislature is still the principal of the local government
units, which cannot defy its will or modify or violate it. 15

Ours is still a unitary form of government, not a federal state. Being so, any form of autonomy granted to local
governments will necessarily be limited and confined within the extent allowed by the central authority. Besides, the
principle of local autonomy under the 1987 Constitution simply means "decentralization". It does not make local
governments sovereign within the state or an "imperium in imperio".16

To conclude our resolution of the first issue, respondent mayor of San Pedro, cannot avail of Kapasiyahan Bilang 508,
Taon 1995, of the Provincial Board of Laguna as justification to prohibit lotto in his municipality. For said resolution is
nothing but an expression of the local legislative unit concerned. The Board's enactment, like spring water, could not
rise above its source of power, the national legislature.

As for the second issue, we hold that petitioners erred in declaring that Sections 2 (c) and 27 of Republic Act 7160,
otherwise known as the Local Government Code of 1991, apply mandatorily in the setting up of lotto outlets around
the country. These provisions state:

SECTION 2. Declaration of Policy. — . . .

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, non-governmental and people's organizations, and
other concerned sectors of the community before any project or program is implemented in their respective
jurisdictions.

SECTION 27. Prior Consultations Required. — No project or program shall be implemented by government
authorities unless the consultations mentioned in Section 2 (c) and 26 hereof are complied with, and prior
approval of the sanggunian concerned is obtained; Provided, that occupants in areas where such projects are
to be implemented shall not be evicted unless, appropriate relocation sites have been provided, in
accordance with the provisions of the Constitution.

From a careful reading of said provisions, we find that these apply only to national programs and/or projects which
are to be implemented in a particular local community. Lotto is neither a program nor a project of the national
government, but of a charitable institution, the PCSO. Though sanctioned by the national government, it is far
fetched to say that lotto falls within the contemplation of Sections 2 (c) and 27 of the Local Government Code.

Section 27 of the Code should be read in conjunction with Section 26 thereof. 17 Section 26 reads:

SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be
the duty of every national agency or government-owned or controlled corporation authorizing or involved in
the planning and implementation of any project or program that may cause pollution, climatic change,
depletion of non-renewable resources, loss of crop land, range-land, or forest cover, and extinction of animal
or plant species, to consult with the local government units, nongovernmental organizations, and other
sectors concerned and explain the goals and objectives of the project or program, its impact upon the people
and the community in terms of environmental or ecological balance, and the measures that will be
undertaken to prevent or minimize the adverse effects thereof.

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and programs
whose effects are among those enumerated in Section 26 and 27, to wit, those that: (1) may cause pollution; (2) may
bring about climatic change; (3) may cause the depletion of non-renewable resources; (4) may result in loss of crop
land, range-land, or forest cover; (5) may eradicate certain animal or plant species from the face of the planet; and
(6) other projects or programs that may call for the eviction of a particular group of people residing in the locality
where these will be implemented. Obviously, none of these effects will be produced by the introduction of lotto in
the province of Laguna.
Moreover, the argument regarding lack of consultation raised by petitioners is clearly an afterthought on their part.
There is no indication in the letter of Mayor Cataquiz that this was one of the reasons for his refusal to issue a permit.
That refusal was predicated solely but erroneously on the provisions of Kapasiyahan Blg. 508, Taon 1995, of
the Sangguniang Panlalawigan of Laguna.

In sum, we find no reversible error in the RTC decision enjoining Mayor Cataquiz from enforcing or implementing
the Kapasiyahan Blg. 508, T. 1995, of the Sangguniang Panlalawigan of Laguna. That resolution expresses merely a
policy statement of the Laguna provincial board. It possesses no binding legal force nor requires any act of
implementation. It provides no sufficient legal basis for respondent mayor's refusal to issue the permit sought by
private respondent in connection with a legitimate business activity authorized by a law passed by Congress.

WHEREFORE, the petition is DENIED for lack of merit. The Order of the Regional Trial Court of San Pedro, Laguna
enjoining the petitioners from implementing or enforcing Resolution or Kapasiyahan Blg. 508, T. 1995, of the
Provincial Board of Laguna is hereby AFFIRMED. No costs.

SO ORDERED.
CITY OF MANILA vs. JUDGE PERFECTO LAGUIO, JR. (RTC-Manila) [April 12, 2005]

I know only that what is moral is what you feel good after and what is immoral is what you feel bad after.

Ernest Hermingway
Death in the Afternoon, Ch. 1

It is a moral and political axiom that any dishonorable act, if performed by oneself, is less immoral than if
performed by someone else, who would be well-intentioned in his dishonesty.

J. Christopher Gerald
Bonaparte in Egypt, Ch. I

The Court's commitment to the protection of morals is secondary to its fealty to the fundamental law of the land. It is
foremost a guardian of the Constitution but not the conscience of individuals. And if it need be, the Court will not
hesitate to "make the hammer fall, and heavily" in the words of Justice Laurel, and uphold the constitutional
guarantees when faced with laws that, though not lacking in zeal to promote morality, nevertheless fail to pass the
test of constitutionality.

The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of the Revised Rules on Civil Procedure seeking the
reversal of the Decision2 in Civil Case No. 93-66511 of the Regional Trial Court (RTC) of Manila, Branch 18 (lower
court),3 is the validity of Ordinance No. 7783 (the Ordinance) of the City of Manila.4

The antecedents are as follows:

Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in the business of
operating hotels, motels, hostels and lodging houses. 5 It built and opened Victoria Court in Malate which was licensed
as a motel although duly accredited with the Department of Tourism as a hotel. 6 On 28 June 1993, MTDC filed
a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining
Order7 (RTC Petition) with the lower court impleading as defendants, herein petitioners City of Manila, Hon. Alfredo S.
Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council of Manila (City Council). MTDC prayed that
the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and
unconstitutional.8

Enacted by the City Council9 on 9 March 1993 and approved by petitioner City Mayor on 30 March 1993, the
said Ordinance is entitled–

AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING CERTAIN


FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA,
PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES. 10

The Ordinance is reproduced in full, hereunder:

SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding, no person,
partnership, corporation or entity shall, in the Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street
in the North, Taft Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the West, pursuant
to P.D. 499 be allowed or authorized to contract and engage in, any business providing certain forms of
amusement, entertainment, services and facilities where women are used as tools in entertainment and
which tend to disturb the community, annoy the inhabitants, and adversely affect the social and moral
welfare of the community, such as but not limited to:

1. Sauna Parlors

2. Massage Parlors

3. Karaoke Bars
4. Beerhouses

5. Night Clubs

6. Day Clubs

7. Super Clubs

8. Discotheques

9. Cabarets

10. Dance Halls

11. Motels

12. Inns

SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said officials are prohibited
from issuing permits, temporary or otherwise, or from granting licenses and accepting payments for the
operation of business enumerated in the preceding section.

SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the businesses enumerated in
Section 1 hereof are hereby given three (3) months from the date of approval of this ordinance within
which to wind up business operations or to transfer to any place outside of the Ermita-Malate area or
convert said businesses to other kinds of business allowable within the area, such as but not limited to:

1. Curio or antique shop

2. Souvenir Shops

3. Handicrafts display centers

4. Art galleries

5. Records and music shops

6. Restaurants

7. Coffee shops

8. Flower shops

9. Music lounge and sing-along restaurants, with well-defined activities for wholesome family
entertainment that cater to both local and foreign clientele.

10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural shows, stage
and theatrical plays, art exhibitions, concerts and the like.

11. Businesses allowable within the law and medium intensity districts as provided for in the zoning
ordinances for Metropolitan Manila, except new warehouse or open-storage depot, dock or yard,
motor repair shop, gasoline service station, light industry with any machinery, or funeral
establishments.

SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction, be punished by
imprisonment of one (1) year or fine of FIVE THOUSAND (P5,000.00) PESOS, or both, at the discretion of
the Court, PROVIDED, that in case of juridical person, the President, the General Manager, or person-in-
charge of operation shall be liable thereof; PROVIDED FURTHER, that in case of subsequent violation and
conviction, the premises of the erring establishment shall be closed and padlocked permanently.

SEC. 5. This ordinance shall take effect upon approval.

Enacted by the City Council of Manila at its regular session today, March 9, 1993.

Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)

In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included in its enumeration of
prohibited establishments, motels and inns such as MTDC's Victoria Court considering that these were not
establishments for "amusement" or "entertainment" and they were not "services or facilities for entertainment," nor
did they use women as "tools for entertainment," and neither did they "disturb the community," "annoy the
inhabitants" or "adversely affect the social and moral welfare of the community." 11

MTDC further advanced that the Ordinance was invalid and unconstitutional for the following reasons: (1) The City
Council has no power to prohibit the operation of motels as Section 458 (a) 4 (iv) 12 of the Local Government Code of
1991 (the Code) grants to the City Council only the power to regulate the establishment, operation and maintenance
of hotels, motels, inns, pension houses, lodging houses and other similar establishments; (2) The Ordinance is void as
it is violative of Presidential Decree (P.D.) No. 499 13 which specifically declared portions of the Ermita-Malate area as a
commercial zone with certain restrictions; (3) The Ordinance does not constitute a proper exercise of police power as
the compulsory closure of the motel business has no reasonable relation to the legitimate municipal interests sought
to be protected; (4) The Ordinance constitutes an ex post facto law by punishing the operation of Victoria Court
which was a legitimate business prior to its enactment; (5) The Ordinance violates MTDC's constitutional rights in
that: (a) it is confiscatory and constitutes an invasion of plaintiff's property rights; (b) the City Council has no power
to find as a fact that a particular thing is a nuisance per se nor does it have the power to extrajudicially destroy it; and
(6) The Ordinance constitutes a denial of equal protection under the law as no reasonable basis exists for prohibiting
the operation of motels and inns, but not pension houses, hotels, lodging houses or other similar establishments,
and for prohibiting said business in the Ermita-Malate area but not outside of this area. 14

In their Answer15 dated 23 July 1993, petitioners City of Manila and Lim maintained that the City Council had the
power to "prohibit certain forms of entertainment in order to protect the social and moral welfare of the
community" as provided for in Section 458 (a) 4 (vii) of the Local Government Code, 16 which reads, thus:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative
body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of
the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate
powers of the city as provided for under Section 22 of this Code, and shall:

....

(4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote
the general welfare and for said purpose shall:

....

(vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement
facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for entertainment or amusement;
regulate such other events or activities for amusement or entertainment, particularly those which
tend to disturb the community or annoy the inhabitants, or require the suspension or suppression of
the same; or, prohibit certain forms of amusement or entertainment in order to protect the social
and moral welfare of the community.
Citing Kwong Sing v. City of Manila,17 petitioners insisted that the power of regulation spoken of in the above-quoted
provision included the power to control, to govern and to restrain places of exhibition and amusement. 18

Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila to protect the social and
moral welfare of the community in conjunction with its police power as found in Article III, Section 18(kk) of Republic
Act No. 409,19 otherwise known as the Revised Charter of the City of Manila (Revised Charter of Manila) 20 which
reads, thus:

ARTICLE III

THE MUNICIPAL BOARD

. . .

Section 18. Legislative powers. – The Municipal Board shall have the following legislative powers:

. . .

(kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance
of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general
welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge
the powers and duties conferred by this chapter; and to fix penalties for the violation of ordinances which
shall not exceed two hundred pesos fine or six months' imprisonment, or both such fine and imprisonment,
for a single offense.

Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private respondent had the
burden to prove its illegality or unconstitutionality. 21

Petitioners also maintained that there was no inconsistency between P.D. 499 and the Ordinance as the latter simply
disauthorized certain forms of businesses and allowed the Ermita-Malate area to remain a commercial
zone.22 The Ordinance, the petitioners likewise claimed, cannot be assailed as ex post facto as it was prospective in
operation.23 The Ordinance also did not infringe the equal protection clause and cannot be denounced as class
legislation as there existed substantial and real differences between the Ermita-Malate area and other places in the
City of Manila.24

On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-parte temporary restraining
order against the enforcement of the Ordinance.25 And on 16 July 1993, again in an intrepid gesture, he granted the
writ of preliminary injunction prayed for by MTDC. 26

After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining the petitioners from
implementing the Ordinance. The dispositive portion of said Decision reads:27

WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of 1993, of the City of
Manila null and void, and making permanent the writ of preliminary injunction that had been issued by this
Court against the defendant. No costs.

SO ORDERED.28

Petitioners filed with the lower court a Notice of Appeal29 on 12 December 1994, manifesting that they are elevating
the case to this Court under then Rule 42 on pure questions of law. 30

On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were committed by the
lower court in its ruling: (1) It erred in concluding that the subject ordinance is ultra vires, or otherwise, unfair,
unreasonable and oppressive exercise of police power; (2) It erred in holding that the
questioned Ordinancecontravenes P.D. 49931 which allows operators of all kinds of commercial establishments, except
those specified therein; and (3) It erred in declaring the Ordinance void and unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in essence repeat the assertions they made before the lower
court. They contend that the assailed Ordinance was enacted in the exercise of the inherent and plenary power of
the State and the general welfare clause exercised by local government units provided for in Art. 3, Sec. 18 (kk) of the
Revised Charter of Manila and conjunctively, Section 458 (a) 4 (vii) of the Code. 34 They allege that the Ordinance is a
valid exercise of police power; it does not contravene P.D. 499; and that it enjoys the presumption of validity. 35

In its Memorandum36 dated 27 May 1996, private respondent maintains that the Ordinance is ultra vires and that it is
void for being repugnant to the general law. It reiterates that the questioned Ordinance is not a valid exercise of
police power; that it is violative of due process, confiscatory and amounts to an arbitrary interference with its lawful
business; that it is violative of the equal protection clause; and that it confers on petitioner City Mayor or any officer
unregulated discretion in the execution of the Ordinance absent rules to guide and control his actions.

This is an opportune time to express the Court's deep sentiment and tenderness for the Ermita-Malate area being its
home for several decades. A long-time resident, the Court witnessed the area's many turn of events. It relished its
glory days and endured its days of infamy. Much as the Court harks back to the resplendent era of the Old Manila and
yearns to restore its lost grandeur, it believes that the Ordinance is not the fitting means to that end. The Court is of
the opinion, and so holds, that the lower court did not err in declaring the Ordinance, as it did, ultra vires and
therefore null and void.

The Ordinance is so replete with constitutional infirmities that almost every sentence thereof violates a constitutional
provision. The prohibitions and sanctions therein transgress the cardinal rights of persons enshrined by the
Constitution. The Court is called upon to shelter these rights from attempts at rendering them worthless.

The tests of a valid ordinance are well established. A long line of decisions has held that for an ordinance to be valid,
it must not only be within the corporate powers of the local government unit to enact and must be passed according
to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy;
and (6) must not be unreasonable.37

Anent the first criterion, ordinances shall only be valid when they are not contrary to the Constitution and to the
laws.38 The Ordinance must satisfy two requirements: it must pass muster under the test of constitutionality and the
test of consistency with the prevailing laws. That ordinances should be constitutional uphold the principle of the
supremacy of the Constitution. The requirement that the enactment must not violate existing law gives stress to the
precept that local government units are able to legislate only by virtue of their derivative legislative power, a
delegation of legislative power from the national legislature. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter. 39

This relationship between the national legislature and the local government units has not been enfeebled by the new
provisions in the Constitution strengthening the policy of local autonomy. The national legislature is still the principal
of the local government units, which cannot defy its will or modify or violate it. 40

The Ordinance was passed by the City Council in the exercise of its police power, an enactment of the City Council
acting as agent of Congress. Local government units, as agencies of the State, are endowed with police power in
order to effectively accomplish and carry out the declared objects of their creation. 41 This delegated police power is
found in Section 16 of the Code, known as the general welfare clause, viz:

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.
Local government units exercise police power through their respective legislative bodies; in this case,
the sangguniang panlungsod or the city council. The Code empowers the legislative bodies to "enact ordinances,
approve resolutions and appropriate funds for the general welfare of the province/city/municipality and its
inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the
province/city/ municipality provided under the Code. 42 The inquiry in this Petition is concerned with the validity of
the exercise of such delegated power.

The Ordinance contravenes


the Constitution

The police power of the City Council, however broad and far-reaching, is subordinate to the constitutional limitations
thereon; and is subject to the limitation that its exercise must be reasonable and for the public good. 43 In the case at
bar, the enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and
repugnant to general laws.

The relevant constitutional provisions are the following:

SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion
of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. 44

SEC. 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental
equality before the law of women and men. 45

SEC. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any
person be denied the equal protection of laws. 46

Sec. 9. Private property shall not be taken for public use without just compensation. 47

A. The Ordinance infringes


the Due Process Clause

The constitutional safeguard of due process is embodied in the fiat "(N)o person shall be deprived of life, liberty or
property without due process of law. . . ." 48

There is no controlling and precise definition of due process. It furnishes though a standard to which governmental
action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. This
standard is aptly described as a responsiveness to the supremacy of reason, obedience to the dictates of justice, 49and
as such it is a limitation upon the exercise of the police power. 50

The purpose of the guaranty is to prevent governmental encroachment against the life, liberty and property of
individuals; to secure the individual from the arbitrary exercise of the powers of the government, unrestrained by the
established principles of private rights and distributive justice; to protect property from confiscation by legislative
enactments, from seizure, forfeiture, and destruction without a trial and conviction by the ordinary mode of judicial
procedure; and to secure to all persons equal and impartial justice and the benefit of the general law. 51

The guaranty serves as a protection against arbitrary regulation, and private corporations and partnerships are
"persons" within the scope of the guaranty insofar as their property is concerned. 52

This clause has been interpreted as imposing two separate limits on government, usually called "procedural due
process" and "substantive due process."

Procedural due process, as the phrase implies, refers to the procedures that the government must follow before it
deprives a person of life, liberty, or property. Classic procedural due process issues are concerned with what kind of
notice and what form of hearing the government must provide when it takes a particular action. 53
Substantive due process, as that phrase connotes, asks whether the government has an adequate reason for taking
away a person's life, liberty, or property. In other words, substantive due process looks to whether there is a
sufficient justification for the government's action.54 Case law in the United States (U.S.) tells us that whether there is
such a justification depends very much on the level of scrutiny used. 55 For example, if a law is in an area where only
rational basis review is applied, substantive due process is met so long as the law is rationally related to a legitimate
government purpose. But if it is an area where strict scrutiny is used, such as for protecting fundamental rights, then
the government will meet substantive due process only if it can prove that the law is necessary to achieve a
compelling government purpose.56

The police power granted to local government units must always be exercised with utmost observance of the rights
of the people to due process and equal protection of the law. Such power cannot be exercised whimsically, arbitrarily
or despotically57 as its exercise is subject to a qualification, limitation or restriction demanded by the respect and
regard due to the prescription of the fundamental law, particularly those forming part of the Bill of Rights. Individual
rights, it bears emphasis, may be adversely affected only to the extent that may fairly be required by the legitimate
demands of public interest or public welfare. 58 Due process requires the intrinsic validity of the law in interfering with
the rights of the person to his life, liberty and property. 59

Requisites for the valid exercise


of Police Power are not met

To successfully invoke the exercise of police power as the rationale for the enactment of the Ordinance, and to free it
from the imputation of constitutional infirmity, not only must it appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private rights, but the means adopted
must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon
individuals.60It must be evident that no other alternative for the accomplishment of the purpose less intrusive of
private rights can work. A reasonable relation must exist between the purposes of the police measure and the
means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights
and those pertaining to private property will not be permitted to be arbitrarily invaded. 61

Lacking a concurrence of these two requisites, the police measure shall be struck down as an arbitrary intrusion into
private rights62 a violation of the due process clause.

The Ordinance was enacted to address and arrest the social ills purportedly spawned by the establishments in the
Ermita-Malate area which are allegedly operated under the deceptive veneer of legitimate, licensed and tax-paying
nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and motels. Petitioners insist that even the
Court in the case of Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila 63 had already
taken judicial notice of the "alarming increase in the rate of prostitution, adultery and fornication in Manila traceable
in great part to existence of motels, which provide a necessary atmosphere for clandestine entry, presence and exit
and thus become the ideal haven for prostitutes and thrill-seekers." 64

The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values of the
community. Granting for the sake of argument that the objectives of the Ordinance are within the scope of the City
Council's police powers, the means employed for the accomplishment thereof were unreasonable and unduly
oppressive.

It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable regulations looking to
the promotion of the moral and social values of the community. However, the worthy aim of fostering public morals
and the eradication of the community's social ills can be achieved through means less restrictive of private rights; it
can be attained by reasonable restrictions rather than by an absolute prohibition. The closing down and transfer of
businesses or their conversion into businesses "allowed" under the Ordinance have no reasonable relation to the
accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated establishments will not per
seprotect and promote the social and moral welfare of the community; it will not in itself eradicate the alluded social
ills of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila.

Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and establishments of the like
which the City Council may lawfully prohibit, 65 it is baseless and insupportable to bring within that classification sauna
parlors, massage parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls,
motels and inns. This is not warranted under the accepted definitions of these terms. The enumerated
establishments are lawful pursuits which are not per se offensive to the moral welfare of the community.

That these are used as arenas to consummate illicit sexual affairs and as venues to further the illegal prostitution is of
no moment. We lay stress on the acrid truth that sexual immorality, being a human frailty, may take place in the most
innocent of places that it may even take place in the substitute establishments enumerated under Section 3 of
the Ordinance. If the flawed logic of the Ordinance were to be followed, in the remote instance that an immoral
sexual act transpires in a church cloister or a court chamber, we would behold the spectacle of the City of Manila
ordering the closure of the church or court concerned. Every house, building, park, curb, street or even vehicles for
that matter will not be exempt from the prohibition. Simply because there are no "pure" places where there are
impure men. Indeed, even the Scripture and the Tradition of Christians churches continually recall the presence
and universality of sin in man's history. 66

The problem, it needs to be pointed out, is not the establishment, which by its nature cannot be said to be injurious
to the health or comfort of the community and which in itself is amoral, but the deplorable human activity that may
occur within its premises. While a motel may be used as a venue for immoral sexual activity, it cannot for that reason
alone be punished. It cannot be classified as a house of ill-repute or as a nuisance per se on a mere likelihood or a
naked assumption. If that were so and if that were allowed, then the Ermita-Malate area would not only be purged of
its supposed social ills, it would be extinguished of its soul as well as every human activity, reprehensible or not, in its
every nook and cranny would be laid bare to the estimation of the authorities.

The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as the Ordinance may to
shape morality, it should not foster the illusion that it can make a moral man out of it because immorality is not a
thing, a building or establishment; it is in the hearts of men. The City Council instead should regulate human conduct
that occurs inside the establishments, but not to the detriment of liberty and privacy which are covenants, premiums
and blessings of democracy.

While petitioners' earnestness at curbing clearly objectionable social ills is commendable, they unwittingly punish
even the proprietors and operators of "wholesome," "innocent" establishments. In the instant case, there is a clear
invasion of personal or property rights, personal in the case of those individuals desirous of owning, operating and
patronizing those motels and property in terms of the investments made and the salaries to be paid to those therein
employed. If the City of Manila so desires to put an end to prostitution, fornication and other social ills, it can instead
impose reasonable regulations such as daily inspections of the establishments for any violation of the conditions of
their licenses or permits; it may exercise its authority to suspend or revoke their licenses for these violations; 67 and it
may even impose increased license fees. In other words, there are other means to reasonably accomplish the desired
end.

Means employed are


constitutionally infirm

The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars, beerhouses, night clubs, day
clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3
thereof, owners and/or operators of the enumerated establishments are given three (3) months from the date of
approval of the Ordinance within which "to wind up business operations or to transfer to any place outside the
Ermita-Malate area or convert said businesses to other kinds of business allowable within the area." Further, it states
in Section 4 that in cases of subsequent violations of the provisions of the Ordinance, the "premises of the erring
establishment shall be closed and padlocked permanently."

It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the
governmental interference itself, infringes on the constitutional guarantees of a person's fundamental right to liberty
and property.

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right
to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he
has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare." 68 In
accordance with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work
where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in
the concept of liberty.69

The U.S. Supreme Court in the case of Roth v. Board of Regents,70 sought to clarify the meaning of "liberty." It said:

While the Court has not attempted to define with exactness the liberty. . . guaranteed [by the Fifth and
Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right of
the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge,
to marry, establish a home and bring up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized…as essential to the orderly pursuit of
happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of
"liberty" must be broad indeed.

In another case, it also confirmed that liberty protected by the due process clause includes personal decisions
relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the
respect the Constitution demands for the autonomy of the person in making these choices, the U.S. Supreme Court
explained:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.
At the heart of liberty is the right to define one's own concept of existence, of meaning, of universe, and of
the mystery of human life. Beliefs about these matters could not define the attributes of personhood where
they formed under compulsion of the State. 71

Persons desirous to own, operate and patronize the enumerated establishments under Section 1 of
the Ordinancemay seek autonomy for these purposes.

Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their bonds in
intimate sexual conduct within the motel's premisesbe it stressed that their consensual sexual behavior does not
contravene any fundamental state policy as contained in the Constitution. 72 Adults have a right to choose to forge
such relationships with others in the confines of their own private lives and still retain their dignity as free persons.
The liberty protected by the Constitution allows persons the right to make this choice. 73 Their right to liberty under
the due process clause gives them the full right to engage in their conduct without intervention of the government,
as long as they do not run afoul of the law. Liberty should be the rule and restraint the exception.

Liberty in the constitutional sense not only means freedom from unlawful government restraint; it must include
privacy as well, if it is to be a repository of freedom. The right to be let alone is the beginning of all freedomit is the
most comprehensive of rights and the right most valued by civilized men. 74

The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect.
As the case of Morfe v. Mutuc,75 borrowing the words of Laski, so very aptly stated:

Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are
indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are built.
He cannot abandon the consequences of his isolation, which are, broadly speaking, that his experience is
private, and the will built out of that experience personal to himself. If he surrenders his will to others, he
surrenders himself. If his will is set by the will of others, he ceases to be a master of himself. I cannot believe
that a man no longer a master of himself is in any real sense free.

Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be
justified by a compelling state interest. Morfe accorded recognition to the right to privacy independently of its
identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop
short of certain intrusions into the personal life of the citizen. 76
There is a great temptation to have an extended discussion on these civil liberties but the Court chooses to exercise
restraint and restrict itself to the issues presented when it should. The previous pronouncements of the Court are not
to be interpreted as a license for adults to engage in criminal conduct. The reprehensibility of such conduct is not
diminished. The Court only reaffirms and guarantees their right to make this choice. Should they be prosecuted for
their illegal conduct, they should suffer the consequences of the choice they have made. That, ultimately, is their
choice.

Modality employed is
unlawful taking

In addition, the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial
use of its property.77 The Ordinance in Section 1 thereof forbids the running of the enumerated businesses in the
Ermita-Malate area and in Section 3 instructs its owners/operators to wind up business operations or to transfer
outside the area or convert said businesses into allowed businesses. An ordinance which permanently restricts the
use of property that it can not be used for any reasonable purpose goes beyond regulation and must be recognized
as a taking of the property without just compensation. 78 It is intrusive and violative of the private property rights of
individuals.

The Constitution expressly provides in Article III, Section 9, that "private property shall not be taken for public use
without just compensation." The provision is the most important protection of property rights in the Constitution.
This is a restriction on the general power of the government to take property. The constitutional provision is about
ensuring that the government does not confiscate the property of some to give it to others. In part too, it is about
loss spreading. If the government takes away a person's property to benefit society, then society should pay. The
principal purpose of the guarantee is "to bar the Government from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a whole. 79

There are two different types of taking that can be identified. A "possessory" taking occurs when the government
confiscates or physically occupies property. A "regulatory" taking occurs when the government's regulation leaves no
reasonable economically viable use of the property. 80

In the landmark case of Pennsylvania Coal v. Mahon,81 it was held that a taking also could be found if government
regulation of the use of property went "too far." When regulation reaches a certain magnitude, in most if not in all
cases there must be an exercise of eminent domain and compensation to support the act. While property may be
regulated to a certain extent, if regulation goes too far it will be recognized as a taking. 82

No formula or rule can be devised to answer the questions of what is too far and when regulation becomes a taking.
In Mahon, Justice Holmes recognized that it was "a question of degree and therefore cannot be disposed of by
general propositions." On many other occasions as well, the U.S. Supreme Court has said that the issue of when
regulation constitutes a taking is a matter of considering the facts in each case. The Court asks whether justice and
fairness require that the economic loss caused by public action must be compensated by the government and thus
borne by the public as a whole, or whether the loss should remain concentrated on those few persons subject to the
public action.83

What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no
reasonable economically viable use of property in a manner that interferes with reasonable expectations for use. 84 A
regulation that permanently denies all economically beneficial or productive use of land is, from the owner's point of
view, equivalent to a "taking" unless principles of nuisance or property law that existed when the owner acquired the
land make the use prohibitable.85 When the owner of real property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a
taking.86

A regulation which denies all economically beneficial or productive use of land will require compensation under the
takings clause. Where a regulation places limitations on land that fall short of eliminating all economically beneficial
use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic
effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed
expectations and the character of government action. These inquiries are informed by the purpose of the takings
clause which is to prevent the government from forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole. 87

A restriction on use of property may also constitute a "taking" if not reasonably necessary to the effectuation of a
substantial public purpose or if it has an unduly harsh impact on the distinct investment-backed expectations of the
owner.88

The Ordinance gives the owners and operators of the "prohibited" establishments three (3) months from its approval
within which to "wind up business operations or to transfer to any place outside of the Ermita-Malate area or convert
said businesses to other kinds of business allowable within the area." The directive to "wind up business operations"
amounts to a closure of the establishment, a permanent deprivation of property, and is practically confiscatory.
Unless the owner converts his establishment to accommodate an "allowed" business, the structure which housed the
previous business will be left empty and gathering dust. Suppose he transfers it to another area, he will likewise leave
the entire establishment idle. Consideration must be given to the substantial amount of money invested to build the
edifices which the owner reasonably expects to be returned within a period of time. It is apparent that
the Ordinance leaves no reasonable economically viable use of property in a manner that interferes with reasonable
expectations for use.

The second and third options to transfer to any place outside of the Ermita-Malate area or to convert into allowed
businessesare confiscatory as well. The penalty of permanent closure in cases of subsequent violations found in
Section 4 of the Ordinance is also equivalent to a "taking" of private property.

The second option instructs the owners to abandon their property and build another one outside the Ermita-Malate
area. In every sense, it qualifies as a taking without just compensation with an additional burden imposed on the
owner to build another establishment solely from his coffers. The proffered solution does not put an end to the
"problem," it merely relocates it. Not only is this impractical, it is unreasonable, onerous and oppressive. The
conversion into allowed enterprises is just as ridiculous. How may the respondent convert a motel into a restaurant
or a coffee shop, art gallery or music lounge without essentially destroying its property? This is a taking of private
property without due process of law, nay, even without compensation.

The penalty of closure likewise constitutes unlawful taking that should be compensated by the government. The
burden on the owner to convert or transfer his business, otherwise it will be closed permanently after a subsequent
violation should be borne by the public as this end benefits them as a whole.

Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance, although a valid
exercise of police power, which limits a "wholesome" property to a use which can not reasonably be made of it
constitutes the taking of such property without just compensation. Private property which is not noxious nor
intended for noxious purposes may not, by zoning, be destroyed without compensation. Such principle finds no
support in the principles of justice as we know them. The police powers of local government units which have always
received broad and liberal interpretation cannot be stretched to cover this particular taking.

Distinction should be made between destruction from necessity and eminent domain. It needs restating that the
property taken in the exercise of police power is destroyed because it is noxious or intended for a noxious purpose
while the property taken under the power of eminent domain is intended for a public use or purpose and is therefore
"wholesome."89 If it be of public benefit that a "wholesome" property remain unused or relegated to a particular
purpose, then certainly the public should bear the cost of reasonable compensation for the condemnation of private
property for public use.90

Further, the Ordinance fails to set up any standard to guide or limit the petitioners' actions. It in no way controls or
guides the discretion vested in them. It provides no definition of the establishments covered by it and it fails to set
forth the conditions when the establishments come within its ambit of prohibition. The Ordinance confers upon the
mayor arbitrary and unrestricted power to close down establishments. Ordinances such as this, which make possible
abuses in its execution, depending upon no conditions or qualifications whatsoever other than the unregulated
arbitrary will of the city authorities as the touchstone by which its validity is to be tested, are unreasonable and
invalid. The Ordinance should have established a rule by which its impartial enforcement could be secured. 91
Ordinances placing restrictions upon the lawful use of property must, in order to be valid and constitutional, specify
the rules and conditions to be observed and conduct to avoid; and must not admit of the exercise, or of an
opportunity for the exercise, of unbridled discretion by the law enforcers in carrying out its provisions. 92

Thus, in Coates v. City of Cincinnati,93 as cited in People v. Nazario,94 the U.S. Supreme Court struck down an
ordinance that had made it illegal for "three or more persons to assemble on any sidewalk and there conduct
themselves in a manner annoying to persons passing by." The ordinance was nullified as it imposed no standard at all
"because one may never know in advance what 'annoys some people but does not annoy others.' "

Similarly, the Ordinance does not specify the standards to ascertain which establishments "tend to disturb the
community," "annoy the inhabitants," and "adversely affect the social and moral welfare of the community." The
cited case supports the nullification of the Ordinance for lack of comprehensible standards to guide the law enforcers
in carrying out its provisions.

Petitioners cannot therefore order the closure of the enumerated establishments without infringing the due process
clause. These lawful establishments may be regulated, but not prevented from carrying on their business. This is a
sweeping exercise of police power that is a result of a lack of imagination on the part of the City Council and which
amounts to an interference into personal and private rights which the Court will not countenance. In this regard, we
take a resolute stand to uphold the constitutional guarantee of the right to liberty and property.

Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far cry from the ill-
considered Ordinance enacted by the City Council.

In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a comprehensive ordinance regulating "sexually oriented
businesses," which are defined to include adult arcades, bookstores, video stores, cabarets, motels, and theaters as
well as escort agencies, nude model studio and sexual encounter centers. Among other things, the ordinance
required that such businesses be licensed. A group of motel owners were among the three groups of businesses that
filed separate suits challenging the ordinance. The motel owners asserted that the city violated the due process
clause by failing to produce adequate support for its supposition that renting room for fewer than ten (10) hours
resulted in increased crime and other secondary effects. They likewise argued than the ten (10)-hour limitation on
the rental of motel rooms placed an unconstitutional burden on the right to freedom of association. Anent the first
contention, the U.S. Supreme Court held that the reasonableness of the legislative judgment combined with a study
which the city considered, was adequate to support the city's determination that motels permitting room rentals for
fewer than ten (10 ) hours should be included within the licensing scheme. As regards the second point, the Court
held that limiting motel room rentals to ten (10) hours will have no discernible effect on personal bonds as those
bonds that are formed from the use of a motel room for fewer than ten (10) hours are not those that have played a
critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals and beliefs.

The ordinance challenged in the above-cited case merely regulated the targeted businesses. It imposed reasonable
restrictions; hence, its validity was upheld.

The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,96 it needs pointing
out, is also different from this case in that what was involved therein was a measure which regulated the mode in
which motels may conduct business in order to put an end to practices which could encourage vice and immorality.
Necessarily, there was no valid objection on due process or equal protection grounds as the ordinance did not
prohibit motels. The Ordinance in this case however is not a regulatory measure but is an exercise of an assumed
power to prohibit.97

The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of property and
personal rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, even under the guise of
exercising police power, be upheld as valid.

B. The Ordinance violates Equal


Protection Clause
Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to
give undue favor to some and unjustly discriminate against others. 98 The guarantee means that no person or class of
persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like
circumstances.99 The "equal protection of the laws is a pledge of the protection of equal laws." 100 It limits
governmental discrimination. The equal protection clause extends to artificial persons but only insofar as their
property is concerned.101

The Court has explained the scope of the equal protection clause in this wise:

… What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration: "The ideal situation is
for the law's benefits to be available to all, that none be placed outside the sphere of its coverage. Only thus
could chance and favor be excluded and the affairs of men governed by that serene and impartial uniformity,
which is of the very essence of the idea of law." There is recognition, however, in the opinion that what in
fact exists "cannot approximate the ideal. Nor is the law susceptible to the reproach that it does not take into
account the realities of the situation. The constitutional guarantee then is not to be given a meaning that
disregards what is, what does in fact exist. To assure that the general welfare be promoted, which is the end
of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may
under such circumstances invoke the equal protection clause only if they can show that the governmental act
assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of
hostility, or at the very least, discrimination that finds no support in reason." Classification is thus not ruled
out, it being sufficient to quote from the Tuason decision anew "that the laws operate equally and uniformly
on all persons under similar circumstances or that all persons must be treated in the same manner, the
conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and
undue preference cannot be allowed. For the principle is that equal protection and security shall be given to
every person under circumstances which, if not identical, are analogous. If law be looked upon in terms of
burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions
cast on some in the group equally binding on the rest. 102

Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may
operate only on some and not all of the people without violating the equal protection clause. 103 The classification
must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements:

1) It must be based on substantial distinctions.

2) It must be germane to the purposes of the law.

3) It must not be limited to existing conditions only.

4) It must apply equally to all members of the class. 104

In the Court's view, there are no substantial distinctions between motels, inns, pension houses, hotels, lodging
houses or other similar establishments. By definition, all are commercial establishments providing lodging and
usually meals and other services for the public. No reason exists for prohibiting motels and inns but not pension
houses, hotels, lodging houses or other similar establishments. The classification in the instant case is invalid as
similar subjects are not similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as it does
not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance.

The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate
area but not outside of this area. A noxious establishment does not become any less noxious if located outside the
area.

The standard "where women are used as tools for entertainment" is also discriminatory as prostitutionone of the
hinted ills the Ordinance aims to banishis not a profession exclusive to women. Both men and women have an
equal propensity to engage in prostitution. It is not any less grave a sin when men engage in it. And why would the
assumption that there is an ongoing immoral activity apply only when women are employed and be inapposite when
men are in harness? This discrimination based on gender violates equal protection as it is not substantially related to
important government objectives. 105 Thus, the discrimination is invalid.

Failing the test of constitutionality, the Ordinance likewise failed to pass the test of consistency with prevailing laws.

C. The Ordinance is repugnant


to general laws; it is ultra vires

The Ordinance is in contravention of the Code as the latter merely empowers local government units to regulate, and
not prohibit, the establishments enumerated in Section 1 thereof.

The power of the City Council to regulate by ordinances the establishment, operation, and maintenance of motels,
hotels and other similar establishments is found in Section 458 (a) 4 (iv), which provides that:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative
body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of
the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate
powers of the city as provided for under Section 22 of this Code, and shall:

. . .

(4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote
the general welfare and for said purpose shall:

. . .

(iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels,
motels, inns, pension houses, lodging houses, and other similar establishments, including tourist guides and
transports . . . .

While its power to regulate the establishment, operation and maintenance of any entertainment or amusement
facilities, and to prohibit certain forms of amusement or entertainment is provided under Section 458 (a) 4 (vii) of the
Code, which reads as follows:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative
body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of
the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate
powers of the city as provided for under Section 22 of this Code, and shall:

. . .

(4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote
the general welfare and for said purpose shall:

. . .

(vii) Regulate the establishment, operation, and maintenance of any entertainment or amusement
facilities, including theatrical performances, circuses, billiard pools, public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for entertainment or amusement;
regulate such other events or activities for amusement or entertainment, particularly those which
tend to disturb the community or annoy the inhabitants, or require the suspension or suppression of
the same; or, prohibit certain forms of amusement or entertainment in order to protect the social
and moral welfare of the community.

Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and
other similar establishments, the only power of the City Council to legislate relative thereto is to regulate them to
promote the general welfare. The Code still withholds from cities the power to suppress and prohibit altogether the
establishment, operation and maintenance of such establishments. It is well to recall the rulings of the Court
in Kwong Sing v. City of Manila106 that:

The word "regulate," as used in subsection (l), section 2444 of the Administrative Code, means and includes
the power to control, to govern, and to restrain; but "regulate" should not be construed as synonymous with
"suppress" or "prohibit." Consequently, under the power to regulate laundries, the municipal authorities
could make proper police regulations as to the mode in which the employment or business shall be
exercised.107

And in People v. Esguerra,108 wherein the Court nullified an ordinance of the Municipality of Tacloban which
prohibited the selling, giving and dispensing of liquor ratiocinating that the municipality is empowered only to
regulate the same and not prohibit. The Court therein declared that:

(A)s a general rule when a municipal corporation is specifically given authority or power to regulate or to
license and regulate the liquor traffic, power to prohibit is impliedly withheld. 109

These doctrines still hold contrary to petitioners' assertion 110 that they were modified by the Code vesting upon City
Councils prohibitory powers.

Similarly, the City Council exercises regulatory powers over public dancing schools, public dance halls, sauna baths,
massage parlors, and other places for entertainment or amusement as found in the first clause of Section 458 (a) 4
(vii). Its powers to regulate, suppress and suspend "such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the inhabitants" and to "prohibit certain forms of
amusement or entertainment in order to protect the social and moral welfare of the community" are stated in the
second and third clauses, respectively of the same Section. The several powers of the City Council as provided in
Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are separated by semi-colons (;), the use of which
indicates that the clauses in which these powers are set forth are independent of each other albeit closely related to
justify being put together in a single enumeration or paragraph. 111 These powers, therefore, should not be confused,
commingled or consolidated as to create a conglomerated and unified power of regulation, suppression and
prohibition.112

The Congress unequivocably specified the establishments and forms of amusement or entertainment subject to
regulation among which are beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar
establishments (Section 458 (a) 4 (iv)), public dancing schools, public dance halls, sauna baths, massage parlors, and
other places for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be
included as among "other events or activities for amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants" or "certain forms of amusement or entertainment" which the City
Council may suspend, suppress or prohibit.

The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily
implied or incidental to the exercise thereof. By reason of its limited powers and the nature thereof, said powers are
to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers
must be construed against the City Council. 113 Moreover, it is a general rule in statutory construction that the express
mention of one person, thing, or consequence is tantamount to an express exclusion of all others. Expressio unius est
exclusio alterium. This maxim is based upon the rules of logic and the natural workings of human mind. It is
particularly applicable in the construction of such statutes as create new rights or remedies, impose penalties or
punishments, or otherwise come under the rule of strict construction. 114

The argument that the City Council is empowered to enact the Ordinance by virtue of the general welfare clause of
the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is likewise without merit. On the first point, the
ruling of the Court in People v. Esguerra,115 is instructive. It held that:

The powers conferred upon a municipal council in the general welfare clause, or section 2238 of the Revised
Administrative Code, refers to matters not covered by the other provisions of the same Code, and therefore it
can not be applied to intoxicating liquors, for the power to regulate the selling, giving away and dispensing
thereof is granted specifically by section 2242 (g) to municipal councils. To hold that, under the general
power granted by section 2238, a municipal council may enact the ordinance in question, notwithstanding
the provision of section 2242 (g), would be to make the latter superfluous and nugatory, because the power
to prohibit, includes the power to regulate, the selling, giving away and dispensing of intoxicating liquors.

On the second point, it suffices to say that the Code being a later expression of the legislative will must necessarily
prevail and override the earlier law, the Revised Charter of Manila. Legis posteriores priores contrarias abrogant, or
later statute repeals prior ones which are repugnant thereto. As between two laws on the same subject matter,
which are irreconcilably inconsistent, that which is passed later prevails, since it is the latest expression of legislative
will.116 If there is an inconsistency or repugnance between two statutes, both relating to the same subject matter,
which cannot be removed by any fair and reasonable method of interpretation, it is the latest expression of the
legislative will which must prevail and override the earlier. 117

Implied repeals are those which take place when a subsequently enacted law contains provisions contrary to those of
an existing law but no provisions expressly repealing them. Such repeals have been divided into two general classes:
those which occur where an act is so inconsistent or irreconcilable with an existing prior act that only one of the two
can remain in force and those which occur when an act covers the whole subject of an earlier act and is intended to
be a substitute therefor. The validity of such a repeal is sustained on the ground that the latest expression of the
legislative will should prevail.118

In addition, Section 534(f) of the Code states that "All general and special laws, acts, city charters, decrees, executive
orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the
provisions of this Code are hereby repealed or modified accordingly." Thus, submitting to petitioners' interpretation
that the Revised Charter of Manila empowers the City Council to prohibit motels, that portion of the Charter stating
such must be considered repealed by the Code as it is at variance with the latter's provisions granting the City Council
mere regulatory powers.

It is well to point out that petitioners also cannot seek cover under the general welfare clause authorizing the
abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects
the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. It
can not be said that motels are injurious to the rights of property, health or comfort of the community. It is a
legitimate business. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. A
motel is not per se a nuisance warranting its summary abatement without judicial intervention. 119

Notably, the City Council was conferred powers to prevent and prohibit certain activities and establishments in
another section of the Code which is reproduced as follows:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative
body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of
the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate
powers of the city as provided for under Section 22 of this Code, and shall:

(1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in
this connection, shall:

. . .

(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual
drunkenness in public places, vagrancy, mendicancy, prostitution, establishment and maintenance of
houses of ill repute, gambling and other prohibited games of chance, fraudulent devices and ways to obtain
money or property, drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the
printing, distribution or exhibition of obscene or pornographic materials or publications, and such other
activities inimical to the welfare and morals of the inhabitants of the city;

. . .
If it were the intention of Congress to confer upon the City Council the power to prohibit the establishments
enumerated in Section 1 of the Ordinance, it would have so declared in uncertain terms by adding them to the list of
the matters it may prohibit under the above-quoted Section. The Ordinance now vainly attempts to lump these
establishments with houses of ill-repute and expand the City Council's powers in the second and third clauses of
Section 458 (a) 4 (vii) of the Code in an effort to overreach its prohibitory powers. It is evident that these
establishments may only be regulated in their establishment, operation and maintenance.

It is important to distinguish the punishable activities from the establishments themselves. That these establishments
are recognized legitimate enterprises can be gleaned from another Section of the Code. Section 131 under the Title
on Local Government Taxation expressly mentioned proprietors or operators of massage clinics, sauna, Turkish and
Swedish baths, hotels, motels and lodging houses as among the "contractors" defined in paragraph (h) thereof. The
same Section also defined "amusement" as a "pleasurable diversion and entertainment," "synonymous to relaxation,
avocation, pastime or fun;" and "amusement places" to include "theaters, cinemas, concert halls, circuses and other
places of amusement where one seeks admission to entertain oneself by seeing or viewing the show or
performances." Thus, it can be inferred that the Code considers these establishments as legitimate enterprises and
activities. It is well to recall the maxim reddendo singula singulis which means that words in different parts of a
statute must be referred to their appropriate connection, giving to each in its place, its proper force and effect, and, if
possible, rendering none of them useless or superfluous, even if strict grammatical construction demands otherwise.
Likewise, where words under consideration appear in different sections or are widely dispersed throughout an act
the same principle applies.120

Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D. 499. As correctly
argued by MTDC, the statute had already converted the residential Ermita-Malate area into a commercial area. The
decree allowed the establishment and operation of all kinds of commercial establishments except warehouse or
open storage depot, dump or yard, motor repair shop, gasoline service station, light industry with any machinery or
funeral establishment. The rule is that for an ordinance to be valid and to have force and effect, it must not only be
within the powers of the council to enact but the same must not be in conflict with or repugnant to the general
law.121As succinctly illustrated in Solicitor General v. Metropolitan Manila Authority:122

The requirement that the enactment must not violate existing law explains itself. Local political subdivisions
are able to legislate only by virtue of a valid delegation of legislative power from the national legislature
(except only that the power to create their own sources of revenue and to levy taxes is conferred by the
Constitution itself). They are mere agents vested with what is called the power of subordinate legislation. As
delegates of the Congress, the local government units cannot contravene but must obey at all times the will
of their principal. In the case before us, the enactment in question, which are merely local in origin cannot
prevail against the decree, which has the force and effect of a statute. 123

Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be the rule, it has already
been held that although the presumption is always in favor of the validity or reasonableness of the ordinance, such
presumption must nevertheless be set aside when the invalidity or unreasonableness appears on the face of the
ordinance itself or is established by proper evidence. The exercise of police power by the local government is valid
unless it contravenes the fundamental law of the land, or an act of the legislature, or unless it is against public policy
or is unreasonable, oppressive, partial, discriminating or in derogation of a common right. 124

Conclusion

All considered, the Ordinance invades fundamental personal and property rights and impairs personal privileges. It is
constitutionally infirm. The Ordinance contravenes statutes; it is discriminatory and unreasonable in its operation; it
is not sufficiently detailed and explicit that abuses may attend the enforcement of its sanctions. And not to be
forgotten, the City Council under the Code had no power to enact the Ordinance and is therefore ultra vires, null and
void.

Concededly, the challenged Ordinance was enacted with the best of motives and shares the concern of the public for
the cleansing of the Ermita-Malate area of its social sins. Police power legislation of such character deserves the full
endorsement of the judiciary we reiterate our support for it. But inspite of its virtuous aims, the enactment of
the Ordinance has no statutory or constitutional authority to stand on. Local legislative bodies, in this case, the City
Council, cannot prohibit the operation of the enumerated establishments under Section 1 thereof or order their
transfer or conversion without infringing the constitutional guarantees of due process and equal protection of laws
not even under the guise of police power.

WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court declaring the Ordinancevoid
is AFFIRMED. Costs against petitioners.

SO ORDERED.

TEODULO PALMA, SR. vs. CARLOS FORTICH (Governor-Bukidnon) [January 29, 1987]

This is a petition for certiorari and Prohibition with prayer for Preliminary Injunction seeking: (a) to prohibit the
respondents from continuing with the hearing and investigation of Administrative Case No. 2 filed by respondent
Governor of Bukidnon against petitioner Mayor Teodulo M. Palma Sr. of the Municipality of Don Carlos, Province of
Bukidnon and (b) to nullify Resolution No. 82-87 passed by respondent Sangguniang Panlalawigan of Bukidnon,
suspending him from office.
The undisputed facts of this case are:

On March 30, 1981, the Assistant Provincial Fiscal Vivencio P. Estrada of Bukidnon, at the instance of the offended
parties Nelia Arandel Clerk-typist and Susan Palamine, Clerical Aide, both of the Office of the Mayor of the
Municipality of Don Carlos, Province of Bukidnon, filed with the Court of First Instance of the same province, Criminal
Cases Nos. 2795, 2796 and 2797 against petitioner Teodulo M. Palma, Sr., the duly elected and qualified Mayor of
said Municipality.

By virtue of the aforesaid three (3) separate cases, said offended parties in a sworn joint letter complaint requested
respondent Provincial Governor for an immediate administrative investigation for the purpose of suspending Mayor
Palma from office pending final determination of these cases. (Rollo, p. 6). Attached to said letter are: three (3) copies
of the Information for Acts of Lasciviousness against the Mayor (Annexes "B", "C" and "D"; Petition, Rollo, pp. 7-9);
the statements of the offended parties (Annexes "1-a" and "2"; Comment, Rollo, pp. 30-34; Respondent's Brief, p. 3,
Rollo, p. 60). Treating the same as a formal letter complaint, respondent Governor formally informed the Mayor of
the administrative charge against him for Misconduct in Office (Annexes "E ", Petitioner; Rollo, p.
10).lwphl@itçForthwith the record of the administrative case against the Mayor was forwarded to the Sangguniang
Panlalawigan of the province of Bukidnon. Said body, after receipt thereof, set the case for hearing on April 13, 1981
(Annex "F", Petition, Rollo, p. 11). After the hearing where complainants were required to testify and then cross-
examined by petitioner's counsel the former petitioned for the preventive suspension of the Mayor which was
granted by respondent Sangguniang Panlalawigan in its Resolution No. 82-87 (Annex "G", Petition, Rollo, p. 42).

The Mayor accepted his preventive suspension from office as shown in his Office Order dated February 15, 1982
(Annex "3", Comment of Respondent; Rollo, p. 35). Nonetheless, he filed this petition.

In the resolution of April 24, 1982 of the First Division of this Court (Rollo, p. 14), respondents were required to
comment on the petition. The same was filed on May 3, 1982 (Rollo, pp. 25-35) while on June 14, 1982 petitioner
filed an urgent motion for immediate issuance of Temporary Restraining Order (Rollo, pp. 37-39). In the resolution of
June 16, 1982 (Rollo, p. 40) the motion of petitioner to file therein a reply (Rollo, pp. 19-23) to respondents'
comment was granted:, the petition was given due course and a temporary restraining order was issued enjoining
the respondents from continuing with the hearing and/or investigation of the administrative case and from enforcing
the order of suspension against petitioner. Petitioner's brief was filed on September 9, 1982 (Rollo, p. 57) while
respondents' brief was filed on September 27, 1982 (Rollo, p. 60). On October 1, 1982, the offended parties moved
(Rollo, pp. 62-64) for intervention and for admission of their attached brief (Rollo, p. 66) which was granted and the
aforesaid brief noted in the resolution of October 20, 1982 (Rollo, p. 68). Thereafter, the case was calendared for
decision. (Rollo, p. 67).

The only issue raised in Petitioner's Brief is as follows:

WHETHER OR NOT THE FILING AND PENDENCY OF THE AFORESAID THREE (3) SEPARATE INFORMATION FOR "ACTS OF
LASCIVIOUSNESS" AGAINST AN ELECTIVE LOCAL OFFICIAL WOULD CONSTITUTE "MISCONDUCT IN OFFICE" WITHIN
THE MEANING OF SECTION 5 OF REPUBLIC ACT NO. 5185 WHICH MAY WARRANT THE FILING OF AN ADMINISTRATIVE
COMPLAINT AGAINST HIM AND/OR HIS SUSPENSION FROM OFFICE.

There appears to be no controversy as to the filing of the criminal cases against the petitioner. The principal issue
centers on the filing of the administrative case and consequent preventive suspension of petitioner based solely on
the filing of the above-mentioned criminal cases.

Petitioner contends that "Acts of Lasciviousness" although how numerous, do not fall within the category of
"malfeasance and misfeasance" or "conduct in the office" contemplated in Section 5 of R.A. No. 5185, and therefore
cannot be the basis of the filing of a separate administrative case against an elective official and the preventive
suspension of the latter.

Respondents, alleging otherwise, maintain that the lascivious acts of the petitioner constitute misconduct under
Article XIII, Section 1 of the 1973 Constitution, re: "Accountability of Public Officers."
However, on September 1, 1983, petitioner filed a Manifestation and Prayer (Rollo, pp. 69-71) informing this Court
that the three criminal cases filed against him were all dismissed by the Regional Trial Court of Bukidnon Branch X in
an Order dated February 24, 1983. (Annex "A", Rollo, pp. 72-79). Thus, on the premise that the administrative case in
question as well as the resulting preventive suspension is now bereft of any legal basis, petitioner now prays that
judgment be rendered in accordance with his prayer in the petition.

But, before the instant petition could be decided by the Supreme Court, the Provisional Constitution also known as
the Freedom Constitution was promulgated in Proclamation No. 3, dated March 25, 1986, by President Corazon C.
Aquino.

Article III, Section 2 thereof, reads:

All elective and appointive officials and employees under the 1973 Constitution shall continue in
office until otherwise provided by proclamation or executive order or upon the designation or
appointment and qualification of their successors, if such is made within a period of one year from
February 25, 1986.

Under the above quoted provision of the Freedom Constitution, an incumbent Mayor, elected under the 1973
Constitution may be replaced by an "Officer-in-Charge a specie of successor considered as within the ambit of the
provision." (G.R. No. 73770, Topacio, Jr. v. Pimentel G.R. No. 73811, Velasco v. Pimentel; G.R. No. 73823, Governors of
the Phil. v. Pimentel; G.R. No. 73940, The Municipal Mayors League of the Phil. et al. v. Pimentel; and G.R. No. 73970,
Solis v. Pimentel et al. RESOLUTION; Court En Banc dated April 10, 1986).

Coming back to the case at bar, it appears from the records of the Ministry of Local Government that petitioner who
was obviously elected under the 1973 Constitution has been replaced by OIC Fabian Gardones as Mayor of Don
Carlos, Cagayan.

Thus, the question now confronting the Court, is whether or not, under the succeeding developments, the issue in
the case at bar has become moot and academic.

As a general rule, dismissal of an administrative case does not necessarily follow the dismissal of a criminal case, the
former requiring as it does, only preponderance of evidence while the latter requires proof beyond reasonable
doubt.

However, in administrative actions against municipal officers, the Supreme Court in Festijo v. Crisologo, et al. (17
SCRA 868, 869 [1966]), classified the grounds for suspension under two categories, namely: (1) those related to the
discharge of the functions of the officer concerned (neglect of duty, oppression, corruption or other forms of
maladministration of office) and (2) those not so connected with said functions. Under the second category, when
the crime involving moral turpitude is not linked with the performance of official duties, conviction by final judgment
is required as a condition precedent to administrative action.

The ground for filing of the administrative action in the case at bar and the suspension of petitioner Mayor is
misconduct allegedly committed in the form of lascivious acts of the latter.

Misconduct has been defined as "such as affects his performance of his duties as an officer and not only as affects his
character as a private individual. In such cases, it has been said at all times, it is necessary to separate the character
of the man from the character of the officer. " (Lacson v. Roque, et al., 92 Phil. 456).lwphl@itç

Now, as to whether or not, such misconduct of petitioner affects his performance of his duties as an officer and not
only his character as a private individual, has been laid to rest by the ruling of the Supreme Court in an analogous
case where it was held that while "it is true that the charges of rape and concubinage may involve moral turpitude of
which a municipal official may be proceeded against . . . but before the provincial governor and board may act and
proceed against the municipal official, a conviction by final judgment must precede the filing by the provincial
governor of the charges and trial by the provincial board." (Mindano v. Silvosa, et al., 97 Phil. 144-145 [1955]).
Indeed, there is merit in petitioner's contention that the same ruling applies to acts of lasciviousness which falls
under the same classification as crimes against chastity. In the instant case, not only is a final judgment lacking, but
the criminal cases filed against the petitioner were all dismissed by the trial court, for insufficiency of evidence, on
the basis of its findings that the attendant circumstances logically point to the existence of consent on the part of the
offended parties. (Order, Crim. Cases Nos. 2795, 2796 and 2797, RTC, Br. X, Malaybalay, Bukidnon, Rollo, pp. 77-79).
Under the circumstances, there being no showing that the acts of petitioner Mayor are linked with the performance
of official duties such as "neglect of duty, oppression, corruption, or other form of maladministration of office"
(Festijo v. Crisologo, et al., supra, pp. 872-873), there appears to be no question that the pending administrative case
against him should be dismissed for lack of basis and the restraining order issued by the court should be made
permanent.

Nonetheless, the replacement of petitioner Mayor by the Officer-in-Charge Fabian Gardones has rendered the issues
of removal and suspension from office, moot and academic.

PREMISES CONSIDERED, judgment is hereby rendered DISMISSING: (a) the administrative case filed against the
petitioner for lack of basis and (b) subject petition for having become moot and academic.

SO ORDERED.

EDGAR and TERESITA TEVES vs. SANDIGANBAYAN [December 17, 2004]

The pivotal issue in this petition is whether a public official charged with violation of Section 3(h) of Republic Act No.
3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, for unlawful intervention, in his
official capacity, in the issuance of a license in favor of a business enterprise in which he has a pecuniary interestmay
be convicted, together with his spouse, of violation of that same provision premised on his mere possession of such
interest.
Edgar Y. Teves, former Mayor of Valencia, Negros Oriental, and his wife Teresita Z. Teves seeks to annul and set aside
the 16 July 2002 Decision1 of the Sandiganbayan in Criminal Case No. 2337 convicting them of violation of Section
3(h) of the Anti-Graft Law for possessing direct pecuniary interest in the Valencia Cockpit and Recreation Center in
Valencia.

The indictment reads:2

The undersigned Special Prosecution Officer II, Office of the Special Prosecutor, hereby accuses EDGAR Y.
TEVES and TERESITA TEVES of violation of Section 3(h) of Republic Act No. 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act, committed as follows:

That on or about February 4, 1992, and sometime subsequent thereto, in Valencia, Negros Oriental,
Philippines, and within the jurisdiction of this Honorable Court, accused Edgar Y. Teves, a public
officer, being then the Municipal Mayor of Valencia, Negros Oriental, committing the crime-herein
charged in relation to, while in the performance and taking advantage of his official functions, and
conspiring and confederating with his wife, herein accused Teresita Teves, did then and there
willfully, unlawfully and criminally cause the issuance of the appropriate business permit/license to
operate the Valencia Cockpit and Recreation Center in favor of one Daniel Teves, said accused Edgar
Y. Teveshaving a direct financial or pecuniary interest therein considering the fact that said cockpit
arena is actually owned and operated by him and accused Teresita Teves.

CONTRARY TO LAW.

Upon their arraignment on 12 May 1997, the petitioners pleaded "not guilty." Pre-trial and trial were thereafter set.

The petitioners and the prosecution agreed on the authenticity of the prosecution’s documentary evidence. Thus, the
prosecution dispensed with the testimonies of witnesses and formally offered its documentary evidence marked as
Exhibits "A" to "V."3

On 23 February 1998, the petitioners filed their Comment/Objections to the evidence offered by the prosecution and
moved for leave of court to file a demurrer to evidence. 4 On 29 July 1998, the Sandiganbayan admitted Exhibits "A" to
"S" of the prosecution’s evidence but rejected Exhibits "T," "U," and "V." 5 It also denied petitioners’ demurrer to
evidence,6 as well as their motion for reconsideration. 7 This notwithstanding, the petitioners filed a Manifestation
that they were, nonetheless, dispensing with the presentation of witnesses because the evidence on record are
inadequate to support their conviction.

On 16 July 2002, the Sandiganbayan promulgated a decision 8 (1) convicting petitioners Edgar and Teresita Teves of
violation of Section 3(h) of the Anti-Graft Law; (2) imposing upon them an indeterminate penalty of imprisonment of
nine years and twenty-one days as minimum to twelve years as maximum; and (3) ordering the confiscation of all
their rights, interests, and participation in the assets and properties of the Valencia Cockpit and Recreation Center in
favor of the Government, as well as perpetual disqualification from public office. 9 The conviction was anchored on
the finding that the petitioners possessed pecuniary interest in the said business enterprise on the grounds that (a)
nothing on record appears that Mayor Teves divested himself of his pecuniary interest in said cockpit; (b) as of April
1992, Teresita Teves was of record the "owner/licensee" of the cockpit; and (c) since Mayor Teves and Teresita
remained married to each other from 1983 until 1992, their property relations as husband and wife, in the absence
of evidence to the contrary, was that of the conjugal partnership of gains. Hence, the cockpit is a conjugal property
over which the petitioners have pecuniary interest. This pecuniary interest is prohibited under Section 89(2) of R.A.
No. 7160, otherwise known as the Local Government Code (LGC) of 1991, and thus falls under the prohibited acts
penalized in Section 3(h) of the Anti-Graft Law.

The Sandiganbayan, however, absolved the petitioners of the charge of causing the issuance of a business permit or
license to operate the Valencia Cockpit and Recreation Center on or about 4 February 1992 for not being well-
founded.

On 26 August 2002, the petitioners filed the instant petition for review on certiorari10 seeking to annul and set aside
the 16 July 2002 Decision of the Sandiganbayan.
At first, we denied the petition for failure of the petitioners to sufficiently show that the Sandiganbayan committed
any reversible error in the challenged decision as to warrant the exercise by this Court of its discretionary appellate
jurisdiction.11 But upon petitioners’ motion for reconsideration, 12 we reinstated the petition.13

The petitioners assert that the Sandiganbayan committed serious and palpable errors in convicting them. In the first
place, the charge was for alleged unlawful intervention of Mayor Teves in his official capacity in the issuance of a
cockpit license in violation of Section 3(h) of the Anti-Graft Law. But they were convicted of having a direct financial
or pecuniary interest in the Valencia Cockpit and Recreation Center prohibited under Section 89(2) of the LGC of
1991, which is essentially different from the offense with which they were charged. Thus, the petitioners insist that
their constitutional right to be informed of the nature and cause of the accusation against them was transgressed
because they were never apprised at any stage of the proceedings in the Sandiganbayan that they were being
charged with, and arraigned and tried for, violation of the LGC of 1991. The variance doctrine invoked by the
respondent is but a rule of procedural law that should not prevail over their constitutionally-guaranteed right to be
informed of the nature and cause of accusation against them.

Second, according to the petitioners, their alleged prohibited pecuniary interest in the Valencia Cockpit in 1992 was
not proved. The Sandiganbayan presumed that since Mayor Teves was the cockpit operator and licensee in 1989, said
interest continued to exist until 1992. It also presumed that the cockpit was the conjugal property of Mayor Teves
and his wife, and that their pecuniary interest thereof was direct. But under the regime of conjugal partnership of
gains, any interest thereon is at most inchoate and indirect.

Also assigned as glaring error is the conviction of Teresita Teves, who is not a public officer. In the information, only
Mayor Teves was accused of "having a direct financial or pecuniary interest in the operation of the Valencia Cockpit
and Recreation Center in Negros Oriental." His wife was merely charged as a co-conspirator of her husband’s alleged
act of "while in the performance and taking advantage of his official functions, … willfully, unlawfully and criminally
caus[ing] the issuance of the appropriate business permit/license to operate" the said cockpit arena. Teresita Teves
could not be convicted because conspiracy was not established. Besides, the Sandiganbayan had already absolved
the petitioners of this offense.

On the other hand, the Sandiganbayan, through the Office of the Special Prosecutor (OSP), insists that the
uncontroverted documentary evidence proved that petitioner Edgar Teves had direct pecuniary interest over the
cockpit in question as early as 26 September 1983. That interest continued even though he transferred the
management thereof to his wife Teresita Teves in 1992, since their property relations were governed by the conjugal
partnership of gains. The existence of that prohibited interest is by itself a criminal offense under Section 89(2) of the
LGC of 1991. It is necessarily included in the offense charged against the petitioners, i.e., for violation of Section 3(h)
of the Anti-Graft Law, which proscribes the possession of a direct or indirect financial or pecuniary interest in any
business, contract, or transaction in connection with which the person possessing the financial interest intervenes in
his official capacity, or in which he is prohibited by the Constitution or any law from having any interest. The use of
the conjunctive word "or" demonstrates the alternative mode or nature of the manner of execution of the final
element of the violation of the provision. Although the information may have alleged only one of the modalities of
committing the offense, the other mode is deemed included in the accusation to allow proof thereof. There was,
therefore, no violation of the constitutional right of the accused to be informed of the nature or cause of the
accusation against them in view of the variance doctrine, which finds statutory support in Sections 4 and 5 of Rule
120 of the Rules of Court.

The petition is not totally devoid of merit.

Section 3(h) of the Anti-Graft Law provides:

Section 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful:


(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction
in connection with which he intervenes or takes part in his official capacity, or in which he is
prohibited by the Constitution or by any law from having any interest.

The essential elements set out in the afore-quoted legislative definition of the crime of violation of Section 3(h) of
the Anti-Graft Law are as follows:

1. The accused is a public officer;

2. He has a direct or indirect financial or pecuniary interest in any business, contract, or transaction;

3. He either

a. intervenes or takes part in his official capacity in connection with such interest; or

b. is prohibited from having such interest by the Constitution or by any law.

There are, therefore, two modes by which a public officer who has a direct or indirect financial or pecuniary interest
in any business, contract, or transaction may violate Section 3(h) of the Anti-Graft Law. The first mode is if in
connection with his pecuniary interest in any business, contract or transaction, the public officer intervenes or takes
part in his official capacity. The second mode is when he is prohibited from having such interest by the Constitution
or any law.

We quote herein the Sandiganbayan’s declaration regarding petitioners’ culpability anent the first mode:

…[T]hat portion of the Information which seeks to indict the spouses Teves for his causing the issuance of a
business permit/license to operate the Valencia cockpit on or about February 4, 1992 is not well-founded.

… Mayor Edgar Teves could not have issued a permit to operate the cockpit in the year 1992 because as of
January 1, 1992 the license could be issued only by the Sangguniang Bayan. He may have issued the permit
or license in 1991 or even before that when he legally could, but that is not the charge. The charge is for acts
committed in 1992.14 [Emphasis supplied].

The Sandiganbayan found that the charge against Mayor Teves for causing the issuance of the business permit or
license to operate the Valencia Cockpit and Recreation Center is "not well-founded." This it based, and rightly so, on
the additional finding that only the Sangguniang Bayan could have issued a permit to operate the Valencia Cockpit in
the year 1992. Indeed, under Section 447(3) 15 of the LGC of 1991, which took effect on 1 January 1992, it is the
Sangguniang Bayan that has the authority to issue a license for the establishment, operation, and maintenance of
cockpits. Unlike in the old LGC, Batas Pambansa Blg. 337, wherein the municipal mayor was the presiding officer of
the Sangguniang Bayan,16 under the LGC of 1991, the mayor is not so anymore and is not even a member of the
Sangguniang Bayan. Hence, Mayor Teves could not have intervened or taken part in his official capacity in the
issuance of a cockpit license during the material time, as alleged in the information, because he was not a member of
the Sangguniang Bayan.17

A fortiori, there is no legal basis to convict Teresita Teves as a co-conspirator in the absence of a finding that Mayor
Teves himself is guilty of the offense charged. In short, the Sandiganbayan correctly absolved the petitioners of the
charge based on the first mode. And there is no need to belabor this point.

The Sandiganbayan, however, convicted the petitioners of violation of Section 3(h) of the Anti-Graft Law based on the
second mode. It reasoned that the evidence overwhelmingly evinces that Mayor Teves had a pecuniary interest in
the Valencia Cockpit, which is prohibited under Section 89(2) of the LGC of 1991.

The information accuses petitioner Edgar Teves, then Municipal Mayor of Valencia, Negros Oriental, of causing,
"while in the performance and taking advantage of his official functions, and conspiring and confederating with his
wife … the issuance of the appropriate business permit/license to operate the Valencia Cockpit and Recreation
Center in favor of one Daniel Teves." The last part of the dispositive portion of the information states that "said
accused Edgar Y. Teves having a direct financial or pecuniary interest therein considering the fact that said cockpit
arena is actually owned and operated by him and accused Teresita Teves."

A careful reading of the information reveals that the afore-quoted last part thereof is merely an allegation of the
second element of the crime, which is, that he has a direct or indirect "financial or pecuniary interest in any business,
contract or transaction." Not by any stretch of imagination can it be discerned or construed that the afore-quoted
last part of the information charges the petitioners with the second mode by which Section 3(h) of the Anti-Graft Law
may be violated. Hence, we agree with the petitioners that the charge was for unlawful intervention in the issuance
of the license to operate the Valencia Cockpit. There was no charge for possession of pecuniary interest prohibited by
law.

However, the evidence for the prosecution has established that petitioner Edgar Teves, then mayor of Valencia,
Negros Oriental,18 owned the cockpit in question. In his sworn application for registration of cockpit filed on 26
September 198319 with the Philippine Gamefowl Commission, Cubao, Quezon City, as well as in his renewal
application dated 6 January 198920 he stated that he is the owner and manager of the said cockpit. Absent any
evidence that he divested himself of his ownership over the cockpit, his ownership thereof is rightly to be presumed
because a thing once proved to exist continues as long as is usual with things of that nature. 21 His affidavit22 dated 27
September 1990 declaring that effective January 1990 he "turned over the management of the cockpit to Mrs.
Teresita Z. Teves for the reason that [he] could no longer devote a full time as manager of the said entity due to other
work pressure" is not sufficient proof that he divested himself of his ownership over the cockpit. Only the
management of the cockpit was transferred to Teresita Teves effective January 1990. Being the owner of the cockpit,
his interest over it was direct.

Even if the ownership of petitioner Edgar Teves over the cockpit were transferred to his wife, still he would have a
direct interest thereon because, as correctly held by respondent Sandiganbayan, they remained married to each
other from 1983 up to 1992, and as such their property relation can be presumed to be that of conjugal partnership
of gains in the absence of evidence to the contrary. Article 160 of the Civil Code provides that all property of the
marriage is presumed to belong to the conjugal partnership unless it be proved that it pertains exclusively to the
husband or to the wife. And Section 143 of the Civil Code declares all the property of the conjugal partnership of
gains to be owned in common by the husband and wife. Hence, his interest in the Valencia Cockpit is direct and is,
therefore, prohibited under Section 89(2) of the LGC of 1991, which reads:

Section 89. Prohibited Business and Pecuniary Interest. – (a) It shall be unlawful for any local government
official or employee, directly or indirectly, to:

(2) Hold such interests in any cockpit or other games licensed by a local government
unit…. [Emphasis supplied].

The offense proved, therefore, is the second mode of violation of Section 3(h) of the Anti-Graft Law, which is
possession of a prohibited interest. But can the petitioners be convicted thereof, considering that it was not charged
in the information?

The answer is in the affirmative in view of the variance doctrine embodied in Section 4, in relation to Section 5, Rule
120, Rules of Criminal Procedure, which both read:

Sec. 4. Judgment in case of variance between allegation and proof. – When there is a variance between the
offense charged in the complaint or information and that proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall be convicted of the offense proved which is
included in the offense charged, or of the offense charged which is included in the offense proved.

Sec. 5. When an offense includes or is included in another. – An offense charged necessarily includes the
offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint
or information, constitutes the latter. And an offense charged is necessarily included in the offense proved
when the essential ingredients of the former constitute or form part of those constituting the latter.
The elements of the offense charged in this case, which is unlawful intervention in the issuance of a cockpit license in
violation of Section 3(h) of the Anti-Graft Law, are

1. The accused is a public officer;

2. He has a direct or indirect financial or pecuniary interest in any business, contract, or transaction, whether
or not prohibited by law; and

3. He intervenes or takes part in his official capacity in connection with such interest.

On the other hand, the essential ingredients of the offense proved, which is possession of prohibited interest in
violation of Section 3(h) of the Anti-Graft Law, are as follows:

1. The accused is a public officer;

2. He has a direct or indirect financial or pecuniary interest in any business, contract or transaction; and

3. He is prohibited from having such interest by the Constitution or any law.

It is clear that the essential ingredients of the offense proved constitute or form part of those constituting the offense
charged. Put differently, the first and second elements of the offense charged, as alleged in the information,
constitute the offense proved. Hence, the offense proved is necessarily included in the offense charged, or the
offense charged necessarily includes the offense proved. The variance doctrine thus finds application to this case,
thereby warranting the conviction of petitioner Edgar Teves for the offense proved.

The next question we have to grapple with is under what law should petitioner Edgar Teves be punished. It must be
observed that Section 3(h) of the Anti-Graft Law is a general provision, it being applicable to all prohibited interests;
while Section 89(2) of the LGC of 1991 is a special provision, as it specifically treats of interest in a cockpit. Notably,
the two statutes provide for different penalties. The Anti-Graft Law, particularly Section 9, provides as follows:

SEC. 9. Penalties for violations. – (a) Any public official or private person committing any of the unlawful acts
or omissions enumerated in Sections 3, 4, 5, and 6 of this Act shall be punished by imprisonment of not less
than six years and one month nor more than fifteen years, perpetual disqualification from public office, and
confiscation or forfeiture in favor of the Government of any prohibited interest….

On the other hand, Section 514 of the LGC of 1991 prescribes a lighter penalty; thus:

SECTION 514. Engaging in Prohibited Business Transactions or Possessing Illegal Pecuniary Interest. – Any
local official and any person or persons dealing with him who violate the prohibitions provided in Section 89
of Book I hereof shall be punished with imprisonment for six months and one day to six years, or a fine of not
less than Three thousand pesos (P3,000.00) nor more than Ten Thousand Pesos (P10,000.00), or both such
imprisonment and fine at the discretion of the court.

It is a rule of statutory construction that where one statute deals with a subject in general terms, and another deals
with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any
conflict, the latter shall prevail regardless of whether it was passed prior to the general statute. 23 Or where two
statutes are of contrary tenor or of different dates but are of equal theoretical application to a particular case, the
one designed therefor specially should prevail over the other. 24

Conformably with these rules, the LGC of 1991, which specifically prohibits local officials from possessing pecuniary
interest in a cockpit licensed by the local government unit and which, in itself, prescribes the punishment for
violation thereof, is paramount to the Anti-Graft Law, which penalizes possession of prohibited interest in a general
manner. Moreover, the latter took effect on 17 August 1960, while the former became effective on 1 January 1991.
Being the earlier statute, the Anti-Graft Law has to yield to the LGC of 1991, which is the later expression of
legislative will.25
In the imposition on petitioner Edgar Teves of the penalty provided in the LGC of 1991, we take judicial notice of the
fact that under the old LGC, mere possession of pecuniary interest in a cockpit was not among the prohibitions
enumerated in Section 4126 thereof. Such possession became unlawful or prohibited only upon the advent of the LGC
of 1991, which took effect on 1 January 1992. Petitioner Edgar Teves stands charged with an offense in connection
with his prohibited interest committed on or about 4 February 1992, shortly after the maiden appearance of the
prohibition. Presumably, he was not yet very much aware of the prohibition. Although ignorance thereof would not
excuse him from criminal liability, such would justify the imposition of the lighter penalty of a fine of P10,000 under
Section 514 of the LGC of 1991.

Petitioner Teresita Teves must, however, be acquitted. The charge against her is conspiracy in causing "the issuance of
the appropriate business permit/license to operate the Valencia Cockpit and Recreation Center." For this charge, she
was acquitted. But as discussed earlier, that charge also includes conspiracy in the possession of prohibited interest.

Conspiracy must be established separately from the crime itself and must meet the same degree of proof, i.e., proof
beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from
the conduct of the accused before, during, and after the commission of the crime, all taken together, the evidence
must reasonably be strong enough to show community of criminal design. 27

Certainly, there is no conspiracy in just being married to an erring spouse. 28 For a spouse or any person to be a party
to a conspiracy as to be liable for the acts of the others, it is essential that there be intentional participation in the
transaction with a view to the furtherance of the common design. Except when he is the mastermind in a conspiracy,
it is necessary that a conspirator should have performed some overt act as a direct or indirect contribution in the
execution of the crime planned to be committed. The overt act must consist of active participation in the actual
commission of the crime itself or of moral assistance to his co-conspirators. 29

Section 4(b) of the Anti-Graft Law, the provision which applies to private individuals, states:

SEC. 4. Prohibitions on private individuals. – …

(b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any
of the offenses defined in Section 3 hereof.

We find no sufficient evidence that petitioner Teresita Teves conspired with, or knowingly induced or caused, her
husband to commit the second mode of violation of Section 3(h) of the Anti-Graft Law.

As early as 1983, Edgar Teves was already the owner of the Valencia Cockpit. Since then until 31 December 1991,
possession by a local official of pecuniary interest in a cockpit was not yet prohibited. It was before the effectivity of
the LGC of 1991, or on January 1990, that he transferred the management of the cockpit to his wife Teresita. In
accordance therewith it was Teresita who thereafter applied for the renewal of the cockpit registration. Thus, in her
sworn applications for renewal of the registration of the cockpit in question dated 28 January 1990 30 and 18 February
1991,31 she stated that she is the Owner/Licensee and Operator/Manager of the said cockpit. In her renewal
application dated 6 January 1992,32 she referred to herself as the Owner/Licensee of the cockpit. Likewise in the
separate Lists of Duly Licensed Personnel for Calendar Years 1991 33 and 1992,34 which she submitted on 22 February
1991 and 17 February 1992, respectively, in compliance with the requirement of the Philippine Gamefowl
Commission for the renewal of the cockpit registration, she signed her name as Operator/Licensee.

The acts of petitioner Teresita Teves can hardly pass as acts in furtherance of a conspiracy to commit the violation of
the Anti-Graft Law that would render her equally liable as her husband. If ever she did those acts, it was because she
herself was an owner of the cockpit. Not being a public official, she was not prohibited from holding an interest in
cockpit. Prudence, however, dictates that she too should have divested herself of her ownership over the cockpit
upon the effectivity of the LGC of 1991; otherwise, as stated earlier, considering her property relation with her
husband, her ownership would result in vesting direct prohibited interest upon her husband.

In criminal cases, conviction must rest on a moral certainty of guilt. 35 The burden of proof is upon the prosecution to
establish each and every element of the crime and that the accused is either responsible for its commission or has
conspired with the malefactor. Since no conspiracy was proved, the acquittal of petitioner Teresita Teves is, therefore,
in order.

WHEREFORE, premises considered, the 16 July 2002 Decision of the Sandiganbayan, First Division, in Criminal Case
No. 2337 is hereby MODIFIED in that (1) EDGAR Y. TEVES is convicted of violation of Section 3(h) of Republic Act No.
3019, or the Anti-Graft and Corrupt Practices Act, for possession of pecuniary or financial interest in a cockpit, which
is prohibited under Section 89(2) of the Local Government Code of 1991, and is sentenced to pay a fine of P10,000;
and (2) TERESITA Z. TEVES is hereby ACQUITTED of such offense.

Costs de oficio. SO ORDERED.

DISSENTING OPINION

TINGA, J.:

It is imperative for this Court as guardian of the people’s fundamental liberties, to redeem persons inflicted with the classic
Kafkaesque nightmare – conviction for a crime the indictment for which the accused has no knowledge of. I sense that the
majority recognizes, albeit tacitly, the absurdity of the convictions challenged in this petition. Thus the proposed quantum
downgrading of the penalty of accused Edgardo Teves (Teves) from imprisonment of at least nine years, imposed by the
Sandiganbayan, to a mere fine. However, I submit that Teves should be extenuated not as a matter of grace, but as a matter of
right in consonance with the Constitution.

My submission is ultimately premised on constitutional considerations – that Teves cannot be convicted of the present charges
against him without violating his constitutional right to be informed of the nature and cause of the accusation against
him.1 Furthermore, the punishment of Teves for a crime of which he was neither legally nor actually informed constitutes a
violation of the constitutional right to due process of law. 2 While the variance doctrine is a rule of long-standing, its mechanical
application cannot supplant the Bill of Rights which occupies a position of primacy within our fundamental law. 3 I believe that the
variance between the offense charged to Teves, on one hand, and the offense of which the majority intends to convict him, on
the other, is material and prejudicial enough so as to affect his substantial rights as an accused. 4

In particular, the Information filed against Teves is deficient for the purpose of convicting him, as charged, of violating Section
3(h) of the Anti-Graft and Corrupt Practices Act, or for violating Section 89(b) of the Local Government Code, as is the wont of
the majority.

The offense of which Teves is charged is defined under Section 3(h) of the Anti-Graft and Corrupt Practices Act, 5which states:

Section 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

xxx

(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with
which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law
from having any interest.

As the majority correctly points out, there are two modes by which a public officer who has a direct or indirect financial or
pecuniary interest in any business, contract or transaction may violate Section 3(h). The first is where the public officer, in
connection with his financial or pecuniary interest in a business, contract or transaction, intervenes or takes part in his official
capacity (First Mode). The second is where the public officer possesses such financial or pecuniary interest and said possession is
prohibited by the Constitution or of any other law (Second Mode).

The Information clearly charges the Teves spouses with violating Section 3(h) through the First Mode:

The undersigned Special Prosecution Officer II, Office of the Special Prosecutor, hereby accuses EDGAR Y. TEVES and
TERESITA TEVES of violation of Section 3(h) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, committed as follows:

That on or about February 4, 1992, and sometime subsequent thereto, in Valencia, Negros Oriental,
Philippines, and within the jurisdiction of this Honorable Court, accused Edgar Y. Teves, a public officer, being
then the Municipal Mayor of Valencia, Negros Oriental, commiting the crime herein charged in relation to,
while in the performance and taking advantage of his official functions, and conspiring and confederating with
his wife, herein accuse[d] Teresita Teves, did then and there willfully, unlawfully and criminally cause the
issuance of the appropriate business permit/license to operate the Valencia Cockpit and Recreation Center in
favor of one Daniel Teves, said accused Edgar Y. Teves having a direct or pecuniary interest therein considering
the fact that said cockpit arena is actually owned and operated by him and accused Teresita Teves.

CONTRARY TO LAW.6

The Sandiganbayan found that Teves could not have caused the issuance of the permit to operate the cockpit in 1992, as alleged
in the Information. Hence, the offense through the First Mode for which Teves was charged was not proved. Still, the
Sandiganbayan found the Teves spouses guilty of violating Section 3(h), through the Second Mode, although it was not at all
alleged in the Information. In justifying the conviction, the Sandiganbayan merely noted that the fact of Teves’ pecuniary interest
in the cockpit was unrebutted,7 and that Section 89(b) of the Local Government Code barred Teves from holding an interest in a
cockpit. The Sandiganbayan was silent as to why the Teves spouses were convicted of an offense different from that charged in
the Information.

The ponencia fills in the blank, contending that conviction can be had by applying the "variance doctrine" encapsulated in
Sections 4 and 5, Rule 120 of the Rules of Criminal Procedure. According to the majority, the offense proved the violation of
Section 3(h) through holding the prohibited pecuniary interest, is necessarily included in the offense charged¾the violation of
Section 3(h) through intervening/taking part in an official capacity in connection with a financial or pecuniary interest in any
business, contract or transaction. However, the majority would prefer to convict Teves instead and fine him Ten Thousand Pesos
(P10,000.00) for violating Section 89(b) of the Local Government Code, the law which specifically prohibits Teves from
maintaining an interest in a cockpit. The deviation is sought to be justified by noting that Section 89(b) of the Local Government
Code is more specific in application than the general proscription under Section 3(h) of the Anti-Graft and Corrupt Practices Act,
a law which happens to antecede the Local Government Code. The ponencia would also do away with a sentence of
imprisonment, imposing instead a fine as earlier adverted to.

That an accused cannot be convicted of an offense not charged or included in the information is based upon the right to be
informed of the true nature and cause of the accusation against him. 8 This right was long ago established in English law, and is
expressly guaranteed under Section 14(2), Article III of the Constitution. This right requires that the offense be charged with
clearness and all necessary certainty to inform the accused of the crime of which he stands charged, in sufficient detail to enable
him to prepare a defense.9 The peculiarities attaching to the Information herein preclude his conviction of any offense other than
violation of Section 3(h) through the First Mode.

Second Mode Not Necessarily Included in First Mode

With due respect, I find unacceptable the general proposition that the Second Mode of violating Section 3(h) is necessarily
included in the First Mode.

Under Section 5, Rule 120 of the Rules of Criminal Procedure, the offense charged necessarily includes the offense proved when
some of the essential elements or ingredients of the former constitute the latter. Thus, it should be established that the Second
Mode is constituted of the essential elements of the First Mode.

In analyzing the question, the majority makes the following pronouncement:

The elements of the offense charged in this case, which is unlawful intervention in the issuance of a cockpit license in
violation of Section 3(h) of the Anti-Graft Law, are

1. The accused is a public officer;

2. He has a direct or indirect financial or pecuniary interest in any business, contract or transaction, whether or
not prohibited by law; and

3. He intervenes or takes part in his official capacity in connection with such interest.

On the other hand, the essential ingredients of the offense proved, which is possession of prohibited interest in
violation of Section 3(h) of the Anti-Graft Law, are as follows:

1. The accused is a public officer;


2. He has a direct or indirect financial or pecuniary interest in any business, contract or transaction; and

3. He is prohibited from having such interest by the Constitution or any law.

It is clear that the essential ingredients of the offense proved constitute or form part of those constituting the offense
charged. Put differently, the first and second elements of the offense charged, as alleged in the information, constitute
the offense proved. Hence, the offense proved is necessarily included in the offense charged, or the offense charged
necessarily includes the offense proved. The variance doctrine thus finds application to this case, thereby warranting the
conviction of petitioner Edgar Teves for the offense proved.10

The essential common ingredient appreciated by the majority is clearly the existence of "direct or indirect financial or pecuniary
interest." Yet the element of "financial or pecuniary interest" contemplated under the Second Mode is one prohibited by law, a
qualification not present in the First Mode.

Under the First Mode, the element considered is simply that the public official maintains a financial or pecuniary interest,
whether or not prohibited by law. This contrasts to the Second Mode, wherein such interest is particularly qualified as one
prohibited by the Constitution or by any other statute. Thus, while the pecuniary interest of a town mayor who possesses an
ownership share in a real estate firm may be cause for liability under the First Mode if the other requisites thereof concur, it is
not cause for liability under the Second Mode as such ownership is not prohibited either by the Constitution or by any other law.

It should be taken into the account that the proper application of the variance doctrine ordinarily does not run afoul of the
Constitution because it is expected that the accused has been given the opportunity to defend himself/herself not only of the
offense charged, but also of the offense eventually proven. This is because the essential elements of the offense proved are
already necessarily included in the offense charged.11 For the variance doctrine to apply, there must be a commonality of
elements within the offense charged and offense proved, to the extent that an Information detailing the offense charged can be
deemed as well as an Information detailing the offense proven.

Hence, the threshold question should be whether violation of Section 3(h) through the Second Mode is necessarily included in a
violation of Section 3(h) through the First Mode. An affirmative answer is precluded by the difference in the nature of the
pecuniary interest that respectively lie at the core of the two modes.

Information Deficient To Sustain Conviction for Any Crime Other than the First Mode of Violation of Section 3(h)

An even more crucial reason why Teves should be acquitted pertains to the particular Information charged against him.

In relation to Teves’s pecuniary interest in the cockpit, all the Information alleges is that Teves had a direct financial or pecuniary
interest in the cockpit. It does not allege that such pecuniary interest violates either the Constitution or any other law. It does
not even state that maintaining the pecuniary interest in the cockpit is in itself unlawful. Moreover, it does not make any
reference to Section 89(b) of the Local Government Code, more so of the fact that such pecuniary interest is prohibited under
the said statute.

Even the majority concedes that the Information does not charge the Teves spouses with violating the Second Mode.
The ponencia notes that:

"[n]ot by any stretch of imagination can it be discerned or construed that the afore-quoted last part of the information
charges the petitioners with the second mode by which Section 3(h) of the Anti-Graft Law may be violated. Hence, we
agree with the petitioners that the charge was for unlawful intervention in the issuance of the license to operate the
Valencia Cockpit. There was no charge for possession of pecuniary interest prohibited by law." 12

In short, the Information does not give any indication that the Office of the Special Prosecutor, which had lodged the charge
sheet, was genuinely aware that the fact of Teves’s ownership of the cockpit actually constitutes a violation of a law, or any law
for that matter. But before the Court chalks it up as a lucky break for the government, it should first examine whether Teves’s
constitutional rights as an accused would be impaired if he were found guilty of a charge on the basis of an Information clearly
predicated on a different ground.

Clearly, the Information is sufficient to convict Teves for the First Mode of violating Section 3(h), had the evidence warranted
conviction. It amply informs Teves of that particular charge to the extent that he could adequately prepare a defense in his
behalf. However, would the same Information similarly suffice to have allowed Teves to defend himself against a charge that
maintaining the financial/pecuniary interest in the cockpit is itself illegal? Clearly, it would not and I so maintain.
Our holding in Esguerra v. People13 is in point. The accused was charged with estafa under Article 315, paragraph 1-b of the
Revised Penal Code, which pertains to misappropriating personal property received by the offender reposed with trust to
preserve or deliver it to another. However, while the Court of Appeals found that Esguerra could not be held liable for Estafa
under Article 315, paragraph 1-b, he still could be held responsible for violation of the same Article, but under paragraph 3(2-a),
which pertains to false pretenses or fraudulent acts committed by making misrepresentations as to his identity or status. 14 The
Court reversed the conviction, noting that:

It is undisputed that the information contains no allegation of misrepresentation, bad faith or false pretenses, essential
element in the crime of which appellant was found guilty by the Court of Appeals. This is so, evidently, because, as
already stated, the fiscal and the private prosecutor avowedly were prosecuting the accused for the crime of
misappropriation and conversion committed with unfaithfulness and abuse of confidence for which the appellant went
to trial and was convicted by the lower court. It is true the information states that "the accused, upon representations
(not misrepresentations) that the accused had copras ready for delivery to it, took and received" the sum of P4,400.00.
Nowhere does it appear in the information that these "representations" were false or fraudulent, or that the accused
had no such copra at the time he allegedly made such "representations." The falsity or fraudulentness of the pretense
or representation or act being the very constitutive element of the offense, allegation to that effect, either in the
words of the law or in any other language of similar import, must be made in the information if the right of the
accused to be informed of the nature and cause of the accusation against him is to be preserved.xxx15

In the case at bar, the constitutive element of the Second Mode for violating Section 3(h) is the possession of a pecuniary interest
that the public officer is prohibited from having by law. Necessarily then, the Information should spell out which law prohibits
such financial or pecuniary interest if conviction could be had based on the possession of such interest. Such fact would be
critical in order to afford the accused the opportunity to prepare an intelligent defense. Had the Information notified Teves of his
possible culpability hinging on Section 89(b) of the Local Government Code, Teves would have had the chance to study the
provision and prepare accordingly. There are several avenues the defense could have pursued, such as an examination of
relevant jurisprudential precedents regarding Section 89(b) or of its legislative history. Teves could have even conducted a
contextual analysis of Section 89(b) in relation to the rest of the Local Government Code or of other statutes. Indeed, the validity
itself of Section 89(b) could be fair game for judicial review, and it would be understood if Teves had pursued that line of
argument, considering that the invalidity of the provision would equate to his absolution from criminal charges that may arise
from Section 89(b).

But the simple fact remains that Teves could not have pursued these plausible defenses because Section 89(b) was not put in
issue by the Information. Had he raised any matter relating to Section 89(b) during trial, these would have been deemed
irrelevant as it bears no relation to the charge at hand. Indeed, the prosecution made no effort to demonstrate that Teves’s
interest in the cockpit was illegal under Section 89(b), as can be gleaned from the documentary evidence submitted 16 on the
basis of which judgment was rendered.17 Instead, intensive efforts were exerted by the prosecution to establish that Teves, in his
official capacity, had caused the issuance of a license on or about 4 February 1992 to operate the cockpit in question. Confronted
with the culpable acts alleged in the Information, Teves accordingly devoted his own defense to disprove the allegation that he
had indeed issued the licenses for the operation of the cockpit. There is no indication that during the trial, the parties or the
Sandiganbayan dwelt on the aspect that a municipal mayor may not hold an interest in a cockpit under Section 89(b), which is
understandable considering that the Information itself does not proffer aspect as an issue.

Yet the Sandiganbayan anyway based its finding of guilt on Section 89(b), in relation to the Second Mode, despite the fact that
the aspect had not been raised, much more the accused afforded the opportunity to offer a defense against such claim. It would
be simplistic to justify the finding by pointing out that the accused had anyway admitted the facts that constitute a violation of
Section 89(b). Even if the questions of fact are settled, the accused remains entitled to raise a question of law on the scope and
reach, if not validity, of Section 89(b).

I am not arguing that Section 89(b) is invalid, but I am defending Teves’s putative right to argue in such manner, or to be allowed
the opportunity to raise any similarly-oriented arguments pertaining to the provision. It may run counterintuitive to sustain a
legal doctrine that extenuates the penalty of the seemingly or obviously guilty, but precisely our Constitution is a document that
is not necessarily attuned to common sense if legal sense dictates otherwise. Thus, the Constitution regards every criminally
accused as innocent at the onset of trial, even an accused who murders another person in front of live television cameras to the
horror of millions who witnessed the crime on their television sets. In such an instance, everybody "knows" that the accused is
guilty, yet a judicial trial still becomes necessary to warrant for a conviction conformably to the dictates of due process. 18 It
should be kept in mind that the question of guilt is not merely a factual question of did he/she do it, such being the usual
treatment in the court of public opinion. In legal contemplation, it also requires a determination of several possible legal
questions such as "is he/she justified in committing the culpable act;" 19 "is he/she exempt from criminal liability despite
committing the culpable act;"20 or even whether the acts committed actually constitute an offense. It is thus very possible that
even if it has been factually established that the accused had committed the acts constituting a crime, acquittal may still be
legally ordained.
Therefore, it was not satisfactory on the part of the Sandiganbayan to have relied merely on the uncontroverted fact that Teves
had a financial or pecuniary interest in the cockpit despite the prohibition under Section 89(b). That was not the charge lodged in
the Information, nor is it even necessarily included in the offense actually alleged in the Information. The Anti-Graft Court’s
conclusion of guilt is based on a de novo finding which the accused had neither an opportunity to defend against, nor even would
have expected as a proper matter of inquiry considering the silence of the Information or the trial proceedings on the question of
Section 89(b).

Even more galling is that nowhere in the Information is it even alleged that maintaining an interest in a cockpit is actually
illegal. Not only is the charge sheet silent as to which law was violated, but such fact of owning an interest in a cockpit actually
constitutes an offense. For that reason, I am confident that my view does not run counter to the well settled ruling of the Court
in U.S. v. Tolentino21 that "where an offense may be committed in any several different modes, and the offense is alleged to have
been committed in two or modes specified, it is sufficient to prove the offense committed in any one of them, provided that it be
such as to constitute the substantive offense."22 The Information was crafted in such a way that only one particular offense was
charged, and the alleged manner through which such offense was committed did not constitute ground for conviction for
another offense.

There may have been stronger basis to uphold the conviction had the Information alleged that the mere act of possession of
the pecuniary interest in the cockpit was in itself a violation of law, even if which law transgressed was not denominated in
the Information. At least in such a case, Teves would have been put on guard that the legality of his ownership of the cockpit
was a controversial issue and thus prepared accordingly, even if it would have to entail his having to research as to which law
was actually violated by his ownership. But the Information herein is not so formulated. It was evidently crafted by persons
who had no intention of putting into issue the illegality of Teves’ ownership of the cockpit, but arguing instead that Teves illegally
abused his office by issuing a license in connection with such cockpit.

My submission to acquit Edgar Teves necessarily results in the acquittal of his wife, Teresita. She is charged as a conspirator to the
commission of her husband’s felonious acts, and thus the exoneration of her husband should lead to a similar result in her favor.
This observation is made without disputing the finding of the majority that there is no sufficient evidence that Teresita Teves
conspired with her husband to commit a violation of Section 3(h) of the Anti-Graft Law.

Perhaps there is some reluctance in acquitting a public official accused of malfeasance in connection with the public office held.
Such a result bolsters the general government crusade against graft and corruption, and is usually popular with the public at
large. Still, the most vital essence of the democratic way of life is the protection of the bedrock guarantees extended by the
Constitution to all persons regardless of rank. These rights cannot be bargained away, especially when they stand as the sole
barrier to the deprivation of one’s cherished right to liberty. A due process violation cannot be obviated by the technical
application of a procedural rule.

I cannot join the Court in giving imprimatur to a conviction for a crime against which the accused was deprived the opportunity
to defend himself. I respectfully DISSENT, and vote to ACQUIT Edgar and Teresita Teves.

RODOLFO GANZON vs. COURT OF APPEALS [August 5, 1991]

The petitioners take common issue on the power of the President (acting through the Secretary of Local
Government), to suspend and/or remove local officials.

The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a member of the Sangguniang
Panglunsod thereof (G.R. No. 93746), respectively.

The petitions of Mayor Ganzon originated from a series of administrative complaints, ten in number, filed against him
by various city officials sometime in 1988, on various charges, among them, abuse of authority, oppression, grave
misconduct, disgraceful and immoral conduct, intimidation, culpable violation of the Constitution, and arbitrary
detention.1 The personalities involved are Joceleehn Cabaluna, a clerk at the city health office; Salvador Cabaluna,
her husband; Dr. Felicidad Ortigoza, Assistant City Health Officer; Mansueto Malabor, Vice-Mayor; Rolando Dabao,
Dan Dalido, German Gonzales, Larry Ong, and Eduardo Pefia Redondo members of the Sangguniang Panglunsod; and
Pancho Erbite, a barangay tanod. The complaints against the Mayor are set forth in the opinion of the respondent
Court of Appeals.2 We quote:

xxx xxx xxx

In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the City Health, Office of Iloilo City
charged that due to political reasons, having supported the rival candidate, Mrs. Rosa 0. Caram, the
petitioner City Mayor, using as an excuse the exigency of the service and the interest of the public, pulled her
out from rightful office where her qualifications are best suited and assigned her to a work that should be the
function of a non-career service employee. To make matters worse, a utility worker in the office of the Public
Services, whose duties are alien to the complainant's duties and functions, has been detailed to take her
place. The petitioner's act are pure harassments aimed at luring her away from her permanent position or
force her to resign.

In the case of Dra. Felicidad Ortigoza, she claims that the petitioner handpicked her to perform task not
befitting her position as Assistant City Health Officer of Iloilo City; that her office was padlocked without any
explanation or justification; that her salary was withheld without cause since April 1, 1988; that when she
filed her vacation leave, she was given the run-around treatment in the approval of her leave in connivance
with Dr. Rodolfo Villegas and that she was the object of a well-engineered trumped-up charge in an
administrative complaint filed by Dr. Rodolfo Villegas (Annex B).

On the other hand, Mansuelo Malabor is the duly elected Vice-Mayor of Iloilo City and complainants Rolando
Dabao, Dan Dalido, German Gonzales, Larry Ong and Eduardo Pefia Pedondo are members of the
Sangguniang Panglunsod of the City of Iloilo. Their complaint arose out from the case where Councilor Larry
Ong, whose key to his office was unceremoniously and without previous notice, taken by petitioner. Without
an office, Councilor Ong had to hold office at Plaza Libertad, The Vice-Mayor and the other complainants
sympathized with him and decided to do the same. However, the petitioner, together with its fully-armed
security men, forcefully drove them away from Plaza Libertad. Councilor Ong denounced the petitioner's
actuations the following day in the radio station and decided to hold office at the Freedom Grandstand at
Iloilo City and there were so many people who gathered to witness the incident. However, before the group
could reach the area, the petitioner, together with his security men, led the firemen using a firetruck in
dozing water to the people and the bystanders.

Another administrative case was filed by Pancho Erbite, a barangay tanod, appointed by former mayor Rosa
O. Caram. On March 13, 1988, without the benefit of charges filed against him and no warrant of arrest was
issued, Erbite was arrested and detained at the City Jail of Iloilo City upon orders of petitioner. In jail, he was
allegedly mauled by other detainees thereby causing injuries He was released only the following day. 3

The Mayor thereafter answered4 and the cases were shortly set for hearing. The opinion of the Court of Appeals also
set forth the succeeding events:

xxx xxx xxx

The initial hearing in the Cabaluna and Ortigoza cases were set for hearing on June 20-21, 1988 at the
Regional Office of the Department of Local Government in Iloilo City. Notices, through telegrams, were sent
to the parties (Annex L) and the parties received them, including the petitioner. The petitioner asked for a
postponement before the scheduled date of hearing and was represented by counsel, Atty. Samuel Castro.
The hearing officers, Atty. Salvador Quebral and Atty. Marino Bermudez had to come all the way from Manila
for the two-day hearings but was actually held only on June 20,1988 in view of the inability and
unpreparedness of petitioner's counsel.

The next hearings were re-set to July 25, 26, 27,1988 in the same venue-Iloilo City. Again, the petitioner
attempted to delay the proceedings and moved for a postponement under the excuse that he had just hired
his counsel. Nonetheless, the hearing officers denied the motion to postpone, in view of the fact that the
parties were notified by telegrams of the scheduled hearings (Annex M).
In the said hearings, petitioner's counsel cross-examined the complainants and their witnesses.

Finding probable grounds and reasons, the respondent issued a preventive suspension order on August 11,
1988 to last until October 11,1988 for a period of sixty (60) days.

Then the next investigation was set on September 21, 1988 and the petitioner again asked for a
postponement to September 26,1988. On September 26, 1988, the complainants and petitioner were
present, together with their respective counsel. The petitioner sought for a postponement which was denied.
In these hearings which were held in Mala the petitioner testified in Adm. Case No. C-10298 and 10299.

The investigation was continued regarding the Malabor case and the complainants testified including their
witnesses.

On October 10, 1988, petitioner's counsel, Atty. Original moved for a postponement of the October 24, 1988
hearing to November 7 to 11, 1988 which was granted. However, the motion for change of venue as denied
due to lack of funds. At the hearing on November 7, 1988, the parties and counsel were present. Petitioner
reiterated his motion to change venue and moved for postponement anew. The counsel discussed a proposal
to take the deposition of witnesses in Iloilo City so the hearing was indefinitely postponed. However, the
parties failed to come to terms and after the parties were notified of the hearing, the investigation was set to
December 13 to 15, 1988.

The petitioner sought for another postponement on the ground that his witnesses were sick or cannot attend
the investigation due to lack of transportation. The motion was denied and the petitioner was given up to
December 14, 1988 to present his evidence.

On December 14,1988, petitioner's counsel insisted on his motion for postponement and the hearing officers
gave petitioner up to December 15, 1988 to present his evidence. On December 15, 1988, the petitioner
failed to present evidence and the cases were considered submitted for resolution.

In the meantime, a prima facie evidence was found to exist in the arbitrary detention case filed by Pancho
Erbite so the respondent ordered the petitioner's second preventive suspension dated October 11, 1988 for
another sixty (60) days. The petitioner was able to obtain a restraining order and a writ of preliminary
injunction in the Regional Trial Court, Branch 33 of Iloilo City. The second preventive suspension was not
enforced.5

Amidst the two successive suspensions, Mayor Ganzon instituted an action for prohibition against the respondent
Secretary of Local Government (now, Interior) in the Regional Trial Court, Iloilo City, where he succeeded in obtaining
a writ of preliminary injunction. Presently, he instituted CA-G.R. SP No. 16417, an action for prohibition, in the
respondent Court of Appeals.

Meanwhile, on May 3, 1990, the respondent Secretary issued another order, preventively suspending Mayor Ganzon
for another sixty days, the third time in twenty months, and designating meantime Vice-Mayor Mansueto Malabor as
acting mayor. Undaunted, Mayor Ganzon commenced CA-G.R. SP No. 20736 of the Court of Appeals, a petition for
prohibition,6 (Malabor it is to be noted, is one of the complainants, and hence, he is interested in seeing Mayor
Ganzon ousted.)

On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R. SP No. 16417. On July 5, 1990, it
likewise promulgated a decision, dismissing CA-G.R. SP No. 20736. In a Resolution dated January 24, 1990, it issued a
Resolution certifying the petition of Mary Ann Artieda, who had been similary charged by the respondent Secretary,
to this Court.

On June 26,1990, we issued a Temporary Restraining Order, barring the respondent Secretary from implementing the
suspension orders, and restraining the enforcement of the Court of Appeals' two decisions.

In our Resolution of November 29, 1990, we consolidated all three cases. In our Resolutions of January 15, 1991, we
gave due course thereto.
Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of Local Government in hearing the ten
cases against him, had denied him due process of law and that the respondent Secretary had been "biased,
prejudicial and hostile" towards him7 arising from his (Mayor Ganzon's) alleged refusal to join the Laban ng
Demokratikong Pilipino party8 and the running political rivalry they maintained in the last congressional and local
elections;9 and his alleged refusal to operate a lottery in Iloilo City. 10 He also alleges that he requested the Secretary
to lift his suspension since it had come ninety days prior to an election (the barangay elections of November 14,
1988),11 notwithstanding which, the latter proceeded with the hearing and meted out two more suspension orders of
the aforementioned cases.12 He likewise contends that he sought to bring the cases to Iloilo City (they were held in
Manila) in order to reduce the costs of proceeding, but the Secretary rejected his request. 13 He states that he asked
for postponement on "valid and justifiable" 14 grounds, among them, that he was suffering from a heart ailment which
required confinement; that his "vital"15 witness was also hospitalized16 but that the latter unduly denied his request. 17

Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary of Local Government is devoid,
in any event, of any authority to suspend and remove local officials, an argument reiterated by the petitioner Mary
Ann Rivera Artieda (G.R. No. 93746).

As to Mayor Ganzon's charges of denial of due process, the records do not show very clearly in what manner the
Mayor might have been deprived of his rights by the respondent Secretary. His claims that he and Secretary Luis-
Santos were (are) political rivals and that his "persecution" was politically motivated are pure speculation and
although the latter does not appear to have denied these contentions (as he, Mayor Ganzon, claims), we can not take
his word for it the way we would have under less political circumstances, considering furthermore that "political
feud" has often been a good excuse in contesting complaints.

The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos had attempted to seduce him to
join the administration party and to operate a lottery in Iloilo City. Again, although the Secretary failed to rebut his
allegations, we can not accept them, at face value, much more, as judicial admissions as he would have us accept
them18 for the same reasons above-stated and furthermore, because his say so's were never corroborated by
independent testimonies. As a responsible public official, Secretary Santos, in pursuing an official function, is
presumed to be performing his duties regularly and in the absence of contrary evidence, no ill motive can be ascribed
to him.

As to Mayor Ganzon's contention that he had requested the respondent Secretary to defer the hearing on account of
the ninety-day ban prescribed by Section 62 of Batas Blg. 337, the Court finds the question to be moot and academic
since we have in fact restrained the Secretary from further hearing the complaints against the petitioners. 19

As to his request, finally, for postponements, the Court is afraid that he has not given any compelling reason why we
should overturn the Court of Appeals, which found no convincing reason to overrule Secretary Santos in denying his
requests. Besides, postponements are a matter of discretion on the part of the hearing officer, and based on Mayor
Ganzon's above story, we are not convinced that the Secretary has been guilty of a grave abuse of discretion.

The Court can not say, under these circumstances, that Secretary Santos' actuations deprived Mayor Ganzon of due
process of law.

We come to the core question: Whether or not the Secretary of Local Government, as the President's alter ego, can
suspend and/or remove local officials.

It is the petitioners' argument that the 1987 Constitution 20 no longer allows the President, as the 1935 and 1973
Constitutions did, to exercise the power of suspension and/or removal over local officials. According to both
petitioners, the Constitution is meant, first, to strengthen self-rule by local government units and second, by deleting
the phrase21 as may be provided by law to strip the President of the power of control over local governments. It is a
view, so they contend, that finds support in the debates of the Constitutional Commission. The provision in question
reads as follows:

Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces
with respect to component cities and municipalities, and cities and municipalities with respect to component
barangays shall ensure that the acts of their component units are within the scope of their prescribed powers
and functions.22

It modifies a counterpart provision appearing in the 1935 Constitution, which we quote:

Sec. 10. The President shall have control of all the executive departments, bureaus, or offices, exercise
general supervision over all Local governments as may be provided by law, and take care that the laws be
faithfully executed.23

The petitioners submit that the deletion (of "as may be provided by law") is significant, as their argument goes, since:
(1) the power of the President is "provided by law" and (2) hence, no law may provide for it any longer.

It is to be noted that in meting out the suspensions under question, the Secretary of Local Government acted in
consonance with the specific legal provisions of Batas Blg. 337, the Local Government Code, we quote:

Sec. 62. Notice of Hearing. — Within seven days after the complaint is filed, the Minister of local
Government, or the sanggunian concerned, as the case may be, shall require the respondent to submit his
verified answer within seven days from receipt of said complaint, and commence the hearing and
investigation of the case within ten days after receipt of such answer of the respondent. No investigation
shall be held within ninety days immediately prior to an election, and no preventive suspension shall be
imposed with the said period. If preventive suspension has been imposed prior to the aforesaid period, the
preventive suspension shall be lifted.24

Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the Minister of Local
Government if the respondent is a provincial or city official, by the provincial governor if the respondent is an
elective municipal official, or by the city or municipal mayor if the respondent is an elective barangay official.

(2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable
ground to believe that the respondent has committed the act or acts complained of, when the evidence of
culpability is strong, when the gravity of the offense so warrants, or when the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety and integrity of the records and
other evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said
suspension.

(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without
prejudice to the continuation of the proceedings against him until its termination. However ' if the delay in
the proceedings of the case is due to his fault, neglect or request, the time of the delay shall not be counted
in computing the time of suspension.25

The issue, as the Court understands it, consists of three questions: (1) Did the 1987 Constitution, in deleting the
phrase "as may be provided by law" intend to divest the President of the power to investigate, suspend, discipline,
and/or remove local officials? (2) Has the Constitution repealed Sections 62 and 63 of the Local Government Code?
(3) What is the significance of the change in the constitutional language?

It is the considered opinion of the Court that notwithstanding the change in the constitutional language, the charter
did not intend to divest the legislature of its right or the President of her prerogative as conferred by existing
legislation to provide administrative sanctions against local officials. It is our opinion that the omission (of "as may be
provided by law") signifies nothing more than to underscore local governments' autonomy from congress and to
break Congress' "control" over local government affairs. The Constitution did not, however, intend, for the sake of
local autonomy, to deprive the legislature of all authority over municipal corporations, in particular, concerning
discipline.

Autonomy does not, after all, contemplate making mini-states out of local government units, as in the federal
governments of the United States of America (or Brazil or Germany), although Jefferson is said to have compared
municipal corporations euphemistically to "small republics." 26 Autonomy, in the constitutional sense, is subject to the
guiding star, though not control, of the legislature, albeit the legislative responsibility under the Constitution and as
the "supervision clause" itself suggest-is to wean local government units from over-dependence on the central
government.

It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing, but subject to, among other
things, the passage of a local government code, 27 a local tax law,28 income distribution legislation, 29 and a national
representation law,30 and measures31 designed to realize autonomy at the local level. It is also noteworthy that in
spite of autonomy, the Constitution places the local government under the general supervision of the Executive. It is
noteworthy finally, that the Charter allows Congress to include in the local government code provisions for removal
of local officials, which suggest that Congress may exercise removal powers, and as the existing Local Government
Code has done, delegate its exercise to the President. Thus:

Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local government units their
powers, responsibilities and resources, and provide for the qualifications, election, appointment and
removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to
the organization and operation of the local units. 32

As hereinabove indicated, the deletion of "as may be provided by law" was meant to stress, sub silencio, the
objective of the framers to strengthen local autonomy by severing congressional control of its affairs, as observed by
the Court of Appeals, like the power of local legislation. 33 The Constitution did nothing more, however, and insofar as
existing legislation authorizes the President (through the Secretary of Local Government) to proceed against local
officials administratively, the Constitution contains no prohibition.

The petitioners are under the impression that the Constitution has left the President mere supervisory powers, which
supposedly excludes the power of investigation, and denied her control, which allegedly embraces disciplinary
authority. It is a mistaken impression because legally, "supervision" is not incompatible with disciplinary authority as
this Court has held,34 thus:

xxx xxx xxx

It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this Court had occasion to
discuss the scope and extent of the power of supervision by the President over local government officials in
contrast to the power of control given to him over executive officials of our government wherein it was
emphasized that the two terms, control and supervision, are two different things which differ one from the
other in meaning and extent. Thus in that case the Court has made the following digression: "In
administration law supervision means overseeing or the power or authority of an officer to see that
subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such
action or step as prescribed by law to make them perform their duties. Control, on the other hand, means
the power of an officer to alter or modify or nullify of set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that of the latter." But from this
pronouncement it cannot be reasonably inferred that the power of supervision of the President over local
government officials does not include the power of investigation when in his opinion the good of the public
service so requires, as postulated in Section 64(c) of the Revised Administrative Code. ... 35

xxx xxx xxx

"Control" has been defined as "the power of an officer to alter or modify or nullify or set aside what a subordinate
officer had done in the performance of his duties and to substitute the judgment of the former for test of the
latter."36"Supervision" on the other hand means "overseeing or the power or authority of an officer to see that
subordinate officers perform their duties.37 As we held,38 however, "investigating" is not inconsistent with
"overseeing", although it is a lesser power than "altering". The impression is apparently exacerbated by the Court's
pronouncements in at least three cases, Lacson v. Roque,39 Hebron v. Reyes,40 and Mondano v. Silvosa,41 and possibly,
a fourth one, Pelaez v. Auditor General. 42 In Lacson, this Court said that the President enjoyed no control powers but
only supervision "as may be provided by law," 43 a rule we reiterated in Hebron, and Mondano. In Pelaez, we stated
that the President "may not . . . suspend an elective official of a regular municipality or take any disciplinary action
against him, except on appeal from a decision of the corresponding provincial board." 44 However,
neither Lacsonnor Hebron nor Mondano categorically banned the Chief Executive from exercising acts of disciplinary
authority because she did not exercise control powers, but because no law allowed her to exercise disciplinary
authority. Thus, according to Lacson:

The contention that the President has inherent power to remove or suspend municipal officers is without
doubt not well taken. Removal and suspension of public officers are always controlled by the particular law
applicable and its proper construction subject to constitutional limitations. 45

In Hebron we stated:

Accordingly, when the procedure for the suspension of an officer is specified by law, the same must be
deemed mandatory and adhered to strictly, in the absence of express or clear provision to the contrary-
which does not et with respect to municipal officers ... 46

In Mondano, the Court held:

... The Congress has expressly and specifically lodged the provincial supervision over municipal officials in the
provincial governor who is authorized to "receive and investigate complaints made under oath against
municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office,
and conviction by final judgment of any crime involving moral turpitude." And if the charges are serious, "he
shall submit written charges touching the matter to the provincial board, furnishing a copy of such charges to
the accused either personally or by registered mail, and he may in such case suspend the officer (not being
the municipal treasurer) pending action by the board, if in his opinion the charge by one affecting the official
integrity of the officer in question." Section 86 of the Revised Administration Code adds nothing to the power
of supervision to be exercised by the Department Head over the administration of ... municipalities ... . If it
be construed that it does and such additional power is the same authority as that vested in the Department
Head by section 79(c) of the Revised Administrative Code, then such additional power must be deemed to
have been abrogated by Section 110(l), Article VII of the Constitution. 47

xxx xxx xxx

In Pelaez, we stated that the President can not impose disciplinary measures on local officials except on appeal from
the provincial board pursuant to the Administrative Code. 48

Thus, in those case that this Court denied the President the power (to suspend/remove) it was not because we did
not think that the President can not exercise it on account of his limited power, but because the law lodged the
power elsewhere. But in those cases ii which the law gave him the power, the Court, as in Ganzon v. Kayanan, found
little difficulty in sustaining him.49

The Court does not believe that the petitioners can rightfully point to the debates of the Constitutional Commission
to defeat the President's powers. The Court believes that the deliberations are by themselves inconclusive, because
although Commissioner Jose Nolledo would exclude the power of removal from the President, 50 Commissioner Blas
Ople would not.51

The Court is consequently reluctant to say that the new Constitution has repealed the Local Government Code, Batas
Blg. 37. As we said, "supervision" and "removal" are not incompatible terms and one may stand with the other
notwithstanding the stronger expression of local autonomy under the new Charter. We have indeed held that in spite
of the approval of the Charter, Batas Blg. 337 is still in force and effect. 52

As the Constitution itself declares, local autonomy means "a more responsive and accountable local government
structure instituted through a system of decentralization." 53 The Constitution as we observed, does nothing more
than to break up the monopoly of the national government over the affairs of local governments and as put by
political adherents, to "liberate the local governments from the imperialism of Manila." Autonomy, however, is not
meant to end the relation of partnership and inter-dependence between the central administration and local
government units, or otherwise, to user in a regime of federalism. The Charter has not taken such a radical step.
Local governments, under the Constitution, are subject to regulation, however limited, and for no other purpose
than precisely, albeit paradoxically, to enhance self- government.

As we observed in one case,54 decentralization means devolution of national administration but not power to the
local levels. Thus:

Now, autonomy is either decentralization of administration or decentralization of power. There is


decentralization of administration when the central government delegates administrative powers to political
subdivisions in order to broaden the base of government power and in the process to make local
governments "more responsive and accountable," and "ensure their fullest development as self-reliant
communities and make them more effective partners in the pursuit of national development and social
progress." At the same time, it relieves the central government of the burden of managing local affairs and
enables it to concentrate on national concerns. The President exercises "general supervision" over them, but
only to "ensure that local affairs are administered according to law." He has no control over their acts in the
sense that he can substitute their judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political power in the favor of local
governments units declared to be autonomous, In that case, the autonomous government is free to chart its
own destiny and shape its future with minimum intervention from central authorities. According to a
constitutional author, decentralization of power amounts to "self-immolation," since in that event, the
autonomous government becomes accountable not to the central authorities but to its constituency. 55

The successive sixty-day suspensions imposed on Mayor Rodolfo Ganzon is albeit another matter. What bothers the
Court, and what indeed looms very large, is the fact that since the Mayor is facing ten administrative charges, the
Mayor is in fact facing the possibility of 600 days of suspension, in the event that all ten cases yield prima
faciefindings. The Court is not of course tolerating misfeasance in public office (assuming that Mayor Ganzon is guilty
of misfeasance) but it is certainly another question to make him serve 600 days of suspension, which is effectively, to
suspend him out of office. As we held:56

2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of office does not expire
until 1986. Were it not for this information and the suspension decreed by the Sandiganbayan according to
the Anti-Graft and Corrupt Practices Act, he would have been all this while in the full discharge of his
functions as such municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has been
unable to. it is a basic assumption of the electoral process implicit in the right of suffrage that the people are
entitled to the services of elective officials of their choice. For misfeasance or malfeasance, any of them
could, of course, be proceeded against administratively or, as in this instance, criminally. In either case, Ms
culpability must be established. Moreover, if there be a criminal action, he is entitled to the constitutional
presumption of innocence. A preventive suspension may be justified. Its continuance, however, for an
unreasonable length of time raises a due process question. For even if thereafter he were acquitted, in the
meanwhile his right to hold office had been nullified. Clearly, there would be in such a case an injustice
suffered by him. Nor is he the only victim. There is injustice inflicted likewise on the people of Lianga They
were deprived of the services of the man they had elected to serve as mayor. In that sense, to paraphrase
Justice Cardozo, the protracted continuance of this preventive suspension had outrun the bounds of reason
and resulted in sheer oppression. A denial of due process is thus quite manifest. It is to avoid such an
unconstitutional application that the order of suspension should be lifted. 57

The plain truth is that this Court has been ill at ease with suspensions, for the above reasons, 58 and so also, because it
is out of the ordinary to have a vacancy in local government. The sole objective of a suspension, as we have held, 59 is
simply "to prevent the accused from hampering the normal cause of the investigation with his influence and
authority over possible witnesses"60 or to keep him off "the records and other evidence. 61

It is a means, and no more, to assist prosecutors in firming up a case, if any, against an erring local official. Under the
Local Government Code, it can not exceed sixty days, 62 which is to say that it need not be exactly sixty days long if a
shorter period is otherwise sufficient, and which is also to say that it ought to be lifted if prosecutors have achieved
their purpose in a shorter span.
Suspension is not a penalty and is not unlike preventive imprisonment in which the accused is held to insure his
presence at the trial. In both cases, the accused (the respondent) enjoys a presumption of innocence unless and until
found guilty.

Suspension finally is temporary and as the Local Government Code provides, it may be imposed for no more than
sixty days. As we held,63 a longer suspension is unjust and unreasonable, and we might add, nothing less than
tyranny.

As we observed earlier, imposing 600 days of suspension which is not a remote possibility Mayor Ganzon is to all
intents and purposes, to make him spend the rest of his term in inactivity. It is also to make, to all intents and
purposes, his suspension permanent.

It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has not been proven. Worse, any
absolution will be for naught because needless to say, the length of his suspension would have, by the time he is
reinstated, wiped out his tenure considerably.

The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to see that justice is done in
Iloilo City, yet it is hardly any argument to inflict on Mayor Ganzon successive suspensions when apparently, the
respondent Secretary has had sufficient time to gather the necessary evidence to build a case against the Mayor
without suspending him a day longer. What is intriguing is that the respondent Secretary has been cracking down, so
to speak, on the Mayor piecemeal apparently, to pin him down ten times the pain, when he, the respondent
Secretary, could have pursued a consolidated effort.

We reiterate that we are not precluding the President, through the Secretary of Interior from exercising a legal
power, yet we are of the opinion that the Secretary of Interior is exercising that power oppressively, and needless to
say, with a grave abuse of discretion.

The Court is aware that only the third suspension is under questions, and that any talk of future suspensions is in fact
premature. The fact remains, however, that Mayor Ganzon has been made to serve a total of 120 days of suspension
and the possibility of sixty days more is arguably around the corner (which amounts to a violation of the Local
Government Code which brings to light a pattern of suspensions intended to suspend the Mayor the rest of his
natural tenure. The Court is simply foreclosing what appears to us as a concerted effort of the State to perpetuate an
arbitrary act.

As we said, we can not tolerate such a state of affairs.

We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third suspension and lifting, for the
purpose, the Temporary Restraining Order earlier issued. Insofar as the seven remaining charges are concerned, we
are urging the Department of Local Government, upon the finality of this Decision, to undertake steps to expedite
the same, subject to Mayor Ganzon's usual remedies of appeal, judicial or administrative, or certiorari, if warranted,
and meanwhile, we are precluding the Secretary from meting out further suspensions based on those remaining
complaints, notwithstanding findings of prima facie evidence.

In resume the Court is laying down the following rules:

1. Local autonomy, under the Constitution, involves a mere decentralization of administration, not of power, in which
local officials remain accountable to the central government in the manner the law may provide;

2. The new Constitution does not prescribe federalism;

3. The change in constitutional language (with respect to the supervision clause) was meant but to deny legislative
control over local governments; it did not exempt the latter from legislative regulations provided regulation is
consistent with the fundamental premise of autonomy;

4. Since local governments remain accountable to the national authority, the latter may, by law, and in the manner
set forth therein, impose disciplinary action against local officials;
5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not signify "control" (which the
President does not have);

6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered, but may no longer be suspended
for the offenses he was charged originally; provided:

a) that delays in the investigation of those charges "due to his fault, neglect or request, (the time of the
delay) shall not be counted in computing the time of suspension. [Supra, sec. 63(3)]

b) that if during, or after the expiration of, his preventive suspension, the petitioner commits another or
other crimes and abuses for which proper charges are filed against him by the aggrieved party or parties, his
previous suspension shall not be a bar to his being preventively suspended again, if warranted under subpar.
(2), Section 63 of the Local Government Code.

WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary Restraining Order issued is
LIFTED.1âwphi1 The suspensions of the petitioners are AFFIRMED, provided that the petitioner, Mayor Rodolfo
Ganzon, may not be made to serve future suspensions on account of any of the remaining administrative charges
pending against him for acts committed prior to August 11, 1988. The Secretary of Interior is ORDERED to consolidate
all such administrative cases pending against Mayor Ganzon.

The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is AFFIRMED. No costs.

SO ORDERED.