Second Set GANCAYCO to Delgado

8/13/2019 Second Set GANCAYCO to Delgado

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EMILIO GANCAYCO,Petitioner,vs.

CITY GOVERNMENT OF QUEZON CITY AND M ETRO MANILA DEVELOPMENTAUTHORITY,Respondents.

G.R. No. 177933

METRO MANILA DEVELOPMENT AUTHORITY,Petitioner,vs.JUSTICE EMILIO A. GANCAYCO (Retired),Respondent,

D E C I S I O N

SERENO, J.:

Before us are consolidated Petitions for Review under Rule 45 of the Rules of Court assailing the

Decision1promulgated on 18 July 2006 and the Resolution2dated 10 May 2007 of the Court of Appeals in CA-G.R. SP No. 84648.

The Facts

In the early 1950s, retired Justice Emilio A. Gancayco bought a parcel of land located at 746 Epifanio delosSantos Avenue (EDSA),3Quezon City with an area of 375 square meters and covered by Transfer Certificate ofTitle (TCT) No. RT114558.

On 27 March 1956, the Quezon City Council issued Ordinance No. 2904, entitled "An Ordinance Requiring the

Construction of Arcades, for Commercial Buildings to be Constructed in Zones Designated as Business Zones inthe Zoning Plan of Quezon City, and Providing Penalties in Violation Thereof."4

An arcade is defined as any portion of a building above the first floor projecting over the sidewalk beyond the firststorey wall used as protection for pedestrians against rain or sun.5

Ordinance No. 2904 required the relevant property owner to construct an arcade with a width of 4.50 meters and

height of 5.00 meters along EDSA, from the north side of Santolan Road to one lot after Liberty Avenue, and fromone lot before Central Boulevard to the Botocan transmission line.

At the outset, it bears emphasis that at the time Ordinance No. 2904 was passed by the city council, there was yet

no building code passed by the national legislature. Thus, the regulation of the construction of buildings was left to

the discretion of local government units. Under this particular ordinance, the city council required that the arcadeis to be created by constructing the wall of the ground floor facing the sidewalk a few meters away from theproperty line. Thus, the building owner is not allowed to construct his wall up to the edge of the property line,

thereby creating a space or shelter under the first floor. In effect, property owners relinquish the use of the spacefor use as an arcade for pedestrians, instead of using it for their own purposes.

The ordinance was amended several times. On 8 August 1960, properties located at the Quezon City-San Juan

boundary were exempted by Ordinance No. 60-4477 from the construction of arcades. This ordinance was further

amended by Ordinance No. 60-4513, extending the exemption to commercial buildings from Balete Stree

Seattle Street. Ordinance No. 6603 dated 1 March 1966 meanwhile reduced the width of the arcades to thmeters for buildings along V. Luna Road, Central District, Quezon City.

The ordinance covered the property of Justice Gancayco. Subsequently, sometime in 1965, Justice Ganca

sought the exemption of a two-storey building being constructed on his property from the application of ONo. 2904 that he be exempted from constructing an arcade on his property.

On 2 February 1966, the City Council acted favorably on Justice Gancaycos request and issued Resolutio

7161, S-66, "subject to the condition that upon notice by the City Engineer, the owner shall, within reason

time, demolish the enclosure of said arcade at his own expense when public interest so demands."6

Decades after, in March 2003, the Metropolitan Manila Development Authority (MMDA) conducted ope

clear obstructions along the sidewalk of EDSA in Quezon City pursuant to Metro Manila Councils (MMC

Resolution No. 02-28, Series of 2002.7The resolution authorized the MMDA and l ocal government units

the sidewalks, streets, avenues, alleys, bridges, parks and other public places in Metro Manila of all illegastructures and obstructions."8

On 28 April 2003, the MMDA sent a notice of demolition to Justice Gancayco alleging that a portion of h

building violated the National Building Code of the Philippines (Building Code)9in relation to Ordinance

2904. The MMDA gave Justice Gancayco fifteen (15) days to clear the portion of the building that was suto be an arcade along EDSA.10

Justice Gancayco did not comply with the notice. Soon after the lapse of the fifteen (15) days, the MMDA

proceeded to demolish the party wall, or what was referred to as the "wing walls," of the ground floor stru

The records of the present case are not entirely clear on the extent of the demolition; nevertheless, the facdemolition was not disputed. At the time of the demolition, the affected portion of the building was being

a restaurant.

On 29 May 2003, Justice Gancayco filed a Petition11with prayer for a temporary restraining order and/or w

preliminary injunction before the Regional Trial Court (RTC) of Quezon City, docketed as Civil Case No

49693, seeking to prohibit the MMDA and the City Government of Quezon City from demolishing his proIn his Petition,12he alleged that the ordinance authorized the taking of private property without due proce

and just compensation, because the construction of an arcade will require 67.5 square meters from the 37

meter property. In addition, he claimed that the ordinance was selective and discriminatory in its scope an

application when it allowed the owners of the buildings located in the Quezon City-San Juan boundary to

Rotonda, and Balete to Seattle Streets to construct arcades at their option. He thus sought the declaration

of Ordinance No. 2904 and the payment of damages. Alternately, he prayed for the payment of just compshould the court hold the ordinance valid.

The City Government of Quezon City claimed that the ordinance was a valid exercise of police power, rethe use of property in a business zone. In addition, it pointed out that Justice Gancayco was already barredestoppel, laches and prescription.

Similarly, the MMDA alleged that Justice Gancayco could not seek the nullification of an ordinance that

already violated, and that the ordinance enjoyed the presumption of constitutionality. It further stated that

questioned property was a public nuisance impeding the safe passage of pedestrians. Finally, the MMDAthat it was merely implementing the legal easement established by Ordinance No. 2904.13
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The RTC rendered its Decision on 30 September 2003 in favor of Justice Gancayco.14It held that the questioned

ordinance was unconstitutional, ruling that it allowed the taking of private property for public use without justcompensation. The RTC said that because 67.5 square meters out of Justice Gancaycos 375 square meters of

property were being taken without compensation for the publics benefit, the ordinance was confiscatory andoppressive. It likewise held that the ordinance violated owners right to equal protection of laws. The dispositive

portion thus states:

WHEREFORE, the petition is hereby granted and the Court hereby declares Quezon City Ordinance No.2094,15Series of 1956 to be unconstitutional, invalid and void ab initio. The respondents are hereby permanently

enjoined from enforcing and implementing the said ordinance, and the respondent MMDA is hereby directed to

immediately restore the portion of the party wall or wing wall of the building of the petitioner it destroyed to itsoriginal condition.

IT IS SO ORDERED.

The MMDA thereafter appealed from the Decision of the trial court. On 18 July 2006, the Court of Appeals (CA)

partly granted the appeal.16The CA upheld the validity of Ordinance No. 2904 and lifted the injunction against theenforcement and implementation of the ordinance. In so doing, it held that the ordinance was a valid exercise of

the right of the local government unit to promote the general welfare of its constituents pursuant to its policepowers. The CA also ruled that the ordinance established a valid classification of property owners with regard to

the construction of arcades in their respective properties depending on the location. The CA further stated that

there was no taking of private property, since the owner still enjoyed the beneficial ownership of the property, to

wit:

Even with the requirement of the construction of arcaded sidewalks within his commercial lot, appellee still

retains the beneficial ownership of the said property. Thus, there is no "taking" for public use which must besubject to just compensation. While the arcaded sidewalks contribute to the public good, for providing safety and

comfort to passersby, the ultimate benefit from the same still redounds to appellee, his commercial establishment

being at the forefront of a busy thoroughfare like EDSA. The arcaded sidewalks, by their nature, assure clients of

the commercial establishments thereat some kind of protection from accidents and other hazards. Without doubt,this sense of protection can be a boon to the business activity therein engaged.17

Nevertheless, the CA held that the MMDA went beyond its powers when it demolished the subject property. It

further found that Resolution No. 02-28 only refers to sidewalks, streets, avenues, alleys, bridges, parks and other

public places in Metro Manila, thus excluding Justice Gancaycos private property. Lastly, the CA stated that the

MMDA is not clothed with the authority to declare, prevent or abate nuisances. Thus, the dispositive portionstated:

WHEREFORE, the appeals are PARTLY GRANTED. The Decision dated S eptember 30, 2003 of the RegionalTrial Court, Branch 224, Quezon City, is MODIFIED, as follows:

1) The validity and c onstitutionality of Ordinance No. 2094,18Series of 1956, issued by the City Councilof Quezon City, is UPHELD; and

2) The injunction against the enforcement and implementation of the said Ordinance is LIFTED.

SO ORDERED.

This ruling prompted the MMDA and Justice Gancayco to file their respective Motions for PartialReconsideration.19

On 10 May 2007, the CA de nied the motions stating that the parties did not present new issues nor offer gthat would merit the reconsideration of the Court.20

Dissatisfied with the ruling of the CA, Justice Gancayco and the MMDA filed their respective Petitions foReview before this Court. The issues raised by the parties are summarized as follows:

I. WHETHER OR NOT JUSTICE GANCAYCO WAS ESTOPPED FROM ASSAILING THE

VALIDITY OF ORDINANCE NO. 2904.

II. WHETHER OR NOT ORDINANCE NO. 2904 IS CONSTITUTIONAL.

III. WHETHER OR NOT THE WING WALL OF JUSTICE GANCAYCOS BUILDING IS A

PUBLIC NUISANCE.

IV. WHETHER OR NOT THE MMDA LEGALLY DEMOLISHED THE PROPERTY OF JUSGANCAYCO.

The Courts Ruling

Estoppel

The MMDA and the City Government of Quezon City both claim that Justice Gancayco was estopped frochallenging the ordinance, because, in 1965, he asked for an exemption from the application of the ordina

According to them, Justice Gancayco thereby recognized the power of the city government to regulate thconstruction of buildings.

To recall, Justice Gancayco questioned the constitutionality of the ordinance on two grounds: (1) whether

ordinance "takes" private property without due process of la w and just compensation; and (2) whether the

ordinance violates the equal protection of rights because it allowed exemptions from its application.

On the first ground, we find that Justice Gancayco may still question the constitutionality of the ordinancedetermine whether or not the ordinance constitutes a "taking" of private property without due process of l

just compensation. It was only in 2003 when he was allegedly deprived of his property when the MMDA

demolished a portion of the building. Because he was granted an exemption in 1966, there was no "taking

speak of.

Moreover, in Acebedo Optical Company, Inc. v. Court of Appeals,21we held:

It is therefore decisively clear that estoppel cannot apply in this case. The fact that petitioner acquiesced i

special conditions imposed by the City Mayor in subject business permit does not preclude it from challensaid imposition, which is ultra viresor beyond the ambit of authority of respondent City Mayor. Ultra vire

acts which are clearly beyond the scope of one's authority are null and void and cannot be given any effe
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doctrine of estoppel cannot operate to give effect to an act which is otherwise null and void orultra vires.(Emphasis supplied.)

Recently, in British American Tobacco v. Camacho,22

we likewise held:

We find that petitioner was not guilty of estoppel. When it made the undertaking to comply with all issuances of

the BIR, which at that time it considered as valid, petitioner did not commit an y false misrepresentation or

misleading act. Indeed, petitioner cannot be faulted for initially undertaking to comply with, and subjecting itself

to the operation of Section 145(C), and only later on filing the subject case praying for the declaration of its

unconstitutionality when the circumstances change and the law results in what it perceives to be unlawful

discrimination. The mere fact that a law has been relied upon in the past and all that time has not been attacked asunconstitutional is not a ground for considering petitioner estopped from assailing its validity. F or courts will pass

upon a constitutional question only when presented before it inbona fidecases for determination, and the fact that

the question has not been raised before is not a valid reason for refusing to allow it to be raised later. (Emphasissupplied.)

Anent the second ground, we find that Justice Gancayco may not question the ordinance on the ground of equalprotection when he also benefited from the exemption. It bears emphasis that Justice Gancayco himself requested

for an exemption from the application of the ordinance in 1965 and was eventually granted one. Moreover, he wasstill enjoying the exemption at the time of the demolition as there was yet no valid notice from the city engineer.

Thus, while the ordinance may be attacked with regard to its different treatment of properties that appears to besimilarly situated, Justice Gancayco is not the proper person to do so.

Zoning and the regulation of the

construction of buildings are valid

exercises of police power .

In MMDA v. Bel-Air Village Association,23we discussed the nature of police powers exercised by local

government units, to wit:

Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution inthe legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and

ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for thegood and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is

vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and thegeneral welfare.

It bears stressing that police power is lodged primarily in the National Legislature. It cannot be exercised by anygroup or body of individuals not possessing legislative power. The National Legislature, however, may delegate

this power to the President and administrative boards as well as the lawmaking bodies of municipal corporations

or local government units. Once delegated, the agents can exercise only such legislative powers as are conferredon them by the national lawmaking body.

To resolve the issue on the constitutionality of the ordinance, we must first determine whether there was a

delegation of police power. Then we can determine whether the City Government of Quezon City acted wlimits of the delegation.

It is clear that Congress expressly granted the city government, through the city council, police power by

Section 12(oo) of Republic Act No. 537, or the Revised Charter of Quezon City,24which states:

To make such further ordinances and regulations not repugnant to law as may be necessary to carry into e

discharge the powers and duties conferred by this Act and such as it shall deem necessary and proper to p

for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and

convenience of the city and the inhabitants thereof, and for the protection of property therein; and enforceobedience thereto with such lawful fines or penalties as the City Council may prescribe under the provisiosubsection (jj) of this section.

Specifically, on the powers of the city government to regulate the construction of buildings, the Charter a

expressly provided that the city government had the power to regulate the kinds of buildings and structuremay be erected within fire limits and the manner of constructing and repairing them.25

With regard meanwhile to the power of the local government units to issue zoning ordinances, we apply S

Justice Society v. Atienza.26In that case, the Sangguniang Panlungsod of Manila City enacted an ordinanc

November 2001 reclassifying certain areas of the city from industrial to commercial. As a result of the zo

ordinance, the oil terminals located in those areas were no longer allowed. Though the oil companies con

that they stood to lose billions of pesos, this Court upheld the power of the city government to pass the assordinance, stating:

In the exercise of police power, property rights of individuals may be subjected to restraints and burdens ito fulfil the objectives of the government. Otherwise stated, the government may enact legislation that ma

interfere with personal liberty, property, lawful businesses and occ upations to promote the generalwelfare.However, the interference must be reasonable and not arbitrary. And to forestall arbitrariness, the

or means used to protect public health, morals, safety or welfare must have a reasonable relation to the e nview.

The means adopted by the Sanggunianwas the enactment of a zoning ordinance which reclassified the ar

the depot is situated from industrial to commercial. A zoning ordinance is defined as a local city or munic

legislation which logically arranges, prescribes, defines and apportions a given political subdivision into

land uses as present and future projection of needs. As a result of the zoning, the continued operation of th

businesses of the oil companies in their present location will no longer be permitted. The power to establi

for industrial, commercial and residential uses is derived from the police power itself and is exercised for

protection and benefit of the residents of a locality. Consequently, the enactment of Ordinance No. 8027

the power of the Sangguniang Panlungsodof the City of Manila and any resulting burden on those affecte

be said to be unjust... (Emphasis supplied)

In Carlos Superdrug v. Department of Social Welfare and Development,27we also held:

For this reason, when the conditions so demand as determined by the legislature, property rights must bowprimacy of police power because property rights, though sheltered by due process, must yield to general w
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Police power as an attribute to promote the common good would be diluted considerably if on the mere plea of

petitioners that they will suffer loss of earnings and capital, the questioned provision is invalidated. Moreover, inthe absence of evidence demonstrating the alleged confiscatory effect of the provision in question, there is no basis

for its nullification in view of the presumption of validity which every law has in its favor. (Emphasis supplied.)

In the case at bar, it is clear that the primary objectives of the city council of Quezon City when it issued the

questioned ordinance ordering the construction of arcades were the health and safety of the city and its inhabitants;

the promotion of their prosperity; and the improvement of their morals, peace, good order, comfort, and theconvenience. These arcades provide safe and convenient passage along the sidewalk for commuters and

pedestrians, not just the residents of Quezon City. More especially so because the contested portion of the building

is located on a busy segment of the city, in a business zone along EDSA.

Corollarily, the policy of the Building Code,28which was passed after the Quezon City Ordinance, supports thepurpose for the enactment of Ordinance No. 2904. The Building Code states:

Section 102. Declaration of Policy.It is hereby declared to be the policy of the Sta te to safeguard life, health,

property, and public welfare, consistent with the principles of sound environmental management and control; andto this end, make it the purpose of this Code to provide for all buildings and structures, a framework of minimum

standards and requirements to regulate and control their location, site, design quality of materials, construction,occupancy, and maintenance.

Section 1004 likewise requires the construction of arcades whenever existing or zoning ordinances require it.

Apparently, the law allows the local government units to determine whether arcades are necessary within theirrespective jurisdictions.

Justice Gancayco argues that there is a three-meter sidewalk in front of his property line, and the arcade should beconstructed above that sidewalk rather than within his property line. We do not need to address this argument

inasmuch as it raises the issue of the wisdom of the city ordinance, a matter we will not and need not delve into.

To reiterate, at the time that the ordinance was passed, there was no national building code enforced to guide the

city council; thus, there was no law of national application that prohibited the city council from regulating theconstruction of buildings, arcades and sidewalks in their jurisdiction.

The "wing walls" of the building are not

nuisances per se.

The MMDA claims that the portion of the building in question is a nuisance per se.

We disagree.

The fact that in 1966 the City Council gave Justice Gancayco an exemption from constructing an arcade is anindication that the wing walls of the building are not nuisances per se. The wing walls do not per se immediately

and adversely affect the safety of persons and property. The fact that an ordinance may declare a structure i llegaldoes not necessarily make that structure a nuisance.

Article 694 of the Civil Code defines nuisance as any act, omission, establishment, business, condition or

property, or anything else that (1) injures or endangers the health or safety of others; (2) annoys or offendsenses; (3) shocks, defies or disregards decency or morality; (4) obstructs or interferes with the free passa

public highway or street, or any body of water; or, (5) hinders or impairs the use of property. A nuisance per se or per accidens. A nuisanceper se is that which affects the immediate safety of persons and propert

may summarily be abated under the undefined law of necessity.29

Clearly, when Justice Gancayco was given a permit to construct the building, the city council or the city edid not consider the building, or its demolished portion, to be a threat to the safety o f persons and property

fact alone should have warned the MMDA against summarily demolishing the structure.

Neither does the MMDA have the power to declare a thing a nuisance. Only courts of law have the powedetermine whether a thing is a nuisance. In AC Enterprises v. Frabelle Properties Corp.,30we held:

We agree with petitioner's contention that, under Section 447(a)(3)(i) of R.A. No. 7160, otherwise known

Local Government Code, the Sangguniang Panglungsodis empowered to enact ordinances declaring, pre

or abating noise and other forms of nuisance. It bears stressing, however, that theSangguniang Bayancandeclare a particular thing as a nuisance per se and order its condemnation. It does not have the power to f

fact, that a particular thing is a nuisance when such thing is not a nuisance per se; nor can it authorize theextrajudicial condemnation and destruction of that as a nuisance which in its nature, situation or use is no

Those things must be determined and resolved in the ordinary courts of law. If a thing be in fact, a nuisan

the manner of its operation, that question cannot be determined by a mere resolution of theSangguniang B

(Emphasis supplied.)

MMDA illegally demolished

the property of Justice Gancayco.

MMDA alleges that by virtue of MMDA Resolution No. 02-28, Series of 2002, it is empowered to demol

Justice Gancaycos property. It insists that the Metro Manila Council authorized the MMDA and the local

government units to clear the sidewalks, streets, avenues, alleys, bridges, parks and other public places in

Manila of all illegal structures and obstructions. It further alleges that it demolished the property pursuantBuilding Code in relation to Ordinance No. 2904 as amended.

However, the Building Code clearly provides the process by which a building may be demolished. The au

to order the demolition of any structure lies with the Building Official. The pertinent provisions of the BuCode provide:

SECTION 205. Building Officials.Except as otherwise provided herein, the Building Official shall be

responsible for carrying out the provisions of this Code in the field as well as the enforcement of orders adecisions made pursuant thereto.

Due to the exigencies of the service, the Secretary may designate incumbent Public Works District EnginEngineers and Municipal Engineers act as Building Officials in their respective areas of jurisdiction.

The designation made by the Secretary under this Section shall continue until regular positions of BuildinOfficial are provided or unless sooner terminated for causes provided by law or decree.
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xxx xxx xxx

SECTION 207. Duties of a Building Official.In his respective territorial jurisdiction, the Building Official

shall be primarily responsible for the enforcement of the provisions of this Code as well as of the implementingrules and regulations issued therefor. He is the official charged with the duties of issuing building permits.

In the performance of his duties, a Building Official may enter any building or its premises at all reasonable times

to inspect and determine compliance with the requirements of this Code, and the terms and conditions provided for

in the building permit as issued.

When any building work is found to be contrary to the provisions of this Code, the Building Official may order thework stopped and prescribe the terms and/or conditions when the work will be allowed to resume. Likewise, the

Building Official is authorized to order the discontinuance of the occupancy or use of any building or structure orportion thereof found to be occupied or used contrary to the provisions of this Code.

xxx xxx xxx

SECTION 215. Abatement of Dangerous Buildings.When any building or structure is found or declared to bedangerous or ruinous, the Building Official shall order its repair, vacation or demolition depending upon the

degree of danger to life, health, or safety. This is without prejudice to further action that may be taken under theprovisions of Articles 482 and 694 to 707 of the Civil Code of the Philippines. (Emphasis supplied.)

MMDA v. Trackworks Rail Transit Advertising, Vending and Promotions, Inc.31is applicable to the case at bar. In

that case, MMDA, invoking its c harter and the Building Code, summarily dismantled the advertising mediainstalled on the Metro Rail Transit (MRT) 3. This Court held:

It is futile for MMDA to simply invoke its legal mandate to justify the dismantling of Trackworks' billboards,signages and other advertising media. MMDA simply had no power on its own to dismantle, remove, or destroy

the billboards, signages and other advertising media installed on the MRT3 structure by Trackworks.InMetropolitan Manila Development Authority v. Bel-Air Village Association,Inc.,Metropolitan Manila

Development Authority v. Viron Transportation Co., Inc., andMetropolitan Manila Development Authority v.

Garin, the Court had the occasion to rule t hat MMDA's powers were limited to the formulation, coordination,

regulation, implementation, preparation, management, monitoring, setting of policies, installing a system, and

administration. Nothing in Republic Act No. 7924 granted MMDA police power, let alone legislative power.

Clarifying the real nature of MMDA, the Court held:

...The MMDA is, as termed in the charter itself, a "development authority". It is an agency created for the purpose

of laying down policies and coordinating with the various national government agencies, people's organizations,

non-governmental organizations and the private sector for the efficient and expeditious delivery of basic servicesin the vast metropolitan area.All its functions are administrative in natureand these are actually summed up in the

charter itself, viz:

Sec.2. Creation of the Metropolitan Manila Development Authority.- xxx.

The MMDA shall perform planning, monitoring and coordinative functions, and in the process exercise re

and supervisory authority over the delivery of metro-wide services within Metro Manila, without diminutautonomy of local government units concerning purely local matters.

The Court also agrees with the CA's ruling that MMDA Regulation No. 96-009 and MMC Memorandum

No. 88-09 did not apply to Trackworks' billboards, signages and other advertising media. The prohibition

posting, installation and display of billboards, signages and other advertising media applied only to public

but MRT3, being private property pursuant to the BLT agreement between the Government and MRTC, wone of the areas as to which the prohibition applied. Moreover, MMC Memorandum Circular No. 88-09 d

apply to Trackworks' billboards, signages and other advertising media in MRT3, because it did not specif

cover MRT3, and because it was issued a year prior to the construction of MRT3 on the center island of EClearly, MMC Memorandum Circular No. 88-09 could not have included MRT3 in its prohibition.

MMDA's insistence that it was only implementing Presidential Decree No. 1096 (Building Code) and itsimplementing rules and regulations is not persuasive. The power to enforce the provisions of the Building

was lodged in the Department of Public Works and Highways (DPWH), not in MMDA, considering the la

following provision, thus:

Sec. 201. Responsibilityfor Administration and Enforcement. -The administration and enforcement of the provisions of this Code including the imposition of penalties f

administrative violations thereof is hereby vested in the Secretary of Public Works, Transportation andCommunications, hereinafter referred to as the "Secretary."

There is also no evidence showing that MMDA had been delegated by DPWH to implement the Building

(Emphasis supplied.)

Additionally, the penalty prescribed by Ordinance No. 2904 it self does not include the demolition of illeg

constructed buildings in case of violations. Instead, it merely prescribes a punishment of "a fine of not motwo hundred pesos (P200.00) or by imprisonment of not more than thirty (30) days, or by both such fine a

imprisonment at the discretion of the Court, Provided, that if the violation is committed by a corporation,

partnership, or any juridical entity, the Manager, managing partner, or any person charged with the mana

thereof shall be held responsible therefor." The ordinance itself also clearly states that it is the regular cou

will determine whether there was a violation of the ordinance.

As pointed out in Trackworks, the MMDA does not have the power to enact ordinances. Thus, it cannot

supplement the provisions of Quezon City Ordinance No. 2904 merely through its Resolution No. 02-28.

Lastly, the MMDA claims that the City Government of Quezon City may be considered to have approveddemolition of the structure, simply because then Quezon City Mayor Feliciano R. Belmonte signed MMD

Resolution No. 02-28. In effect, the city government delegated these powers to the MMDA. The powers r

to are those that include the power to declare, prevent and abate a nuisance32and to further impose the penremoval or demolition of the building or structure by the owner or by the city at the expense of the owner.

MMDAs argument does not hold water. There was no valid delegation of powers to the MMDA. Contrarclaim of the MMDA, the City Government of Quezon City washed its hands off the acts of the former. In

Answer,34the city government stated that "the demolition was undertaken by the MMDA only, without th

participation and/or consent of Quezon City." Therefore, the MMDA acted on its own and should be heldliable for the destruction of the portion of Justice Gancaycos building.
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WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in CA-G.R. SP No. 84648 isAFFIRMED.

SO ORDERED.

ASSOCIATION OF SMALL LANDOWNERS IN THE PHILIPPINES, INCpetitioners,vs.HONORABLE SECRETARY OF AGRARIAN REFORM, respondent.

G.R. No. 79310 July 14, 1989

ARSENIO AL. ACUNA, ,petitioners,vs.

JOKER ARROYO, PHILIP E. JUICO and PRESIDENTIAL AGRARIAN REFORMCOUNCIL, respondents.

G.R. No. 79744 July 14, 1989

INOCENTES PABICO,petitioner,vs.

HON. PHILIP E. JUICO, SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM,, respondents.

G.R. No. 79777 July 14, 1989

NICOLAS S. MANAAY and AGUSTIN HERMANO, JR., petitioners,vs.

HON. PHILIP ELLA JUICO, as Secretary of Agrarian Reform, and LAND BANK OF THEPHILIPPINES,respondents.

CRUZ,J.:

In ancient mythology, Antaeus was a terrible giant who blocked and challenged Hercules for his life on his way to

Mycenae after performing his eleventh labor. The two wrestled mightily and Hercules flung his adversary to the

ground thinking him dead, but Antaeus rose even stronger to resume their struggle. This happened several times to

Hercules' increasing amazement. Finally, as they continued grappling, it dawned on Hercules that Antaeus was the

son of Gaea and could never die as long as any part of his body was touching his Mother Earth. Thus forewarned,Hercules then held Antaeus up in the air, beyond the reach of the sustaining soil, and crushed him to death.

Mother Earth. The sustaining soil. The giver of life, without whose invigorating touch even the powerful Antaeusweakened and died.

The cases before us are not as fanciful as the foregoing tale. But they also tell of the elemental forces of life anddeath, of men and women who, like Antaeus need the sustaining strength of the precious earth to stay alive.

"Land for the Landless" is a slogan that underscores the acute imbalance in the distribution of this preciou

resource among our people. But it is more than a slogan. Through the brooding centuries, it has become acry dramatizing the increasingly urgent demand of the dispossessed among us for a plot of earth as their p

the sun.

Recognizing this need, the Constitution in 1935 mandated the policy of social justice to "insure the well-b

economic security of all the people,"1especially the less privileged. In 1973, the new Constitution affirm

goal adding specifically that "the State shall regulate the acquisition, ownership, use, enjoyment and dispoprivate property and equitably diffuse property ownership and profits."2Significantly, there was also the s

injunction to "formulate and implement an agrarian reform program aimed at emancipating the tenant fro

bondage of the soil."

3

The Constitution of 1987 was not to be outdone. Besides echoing these sentiments, it also adopted one wh

separate Article XIII on Social Justice and Human Rights, containing grandiose but undoubtedly sincereprovisions for the uplift of the common people. These include a call in the following words for the adoptiState of an agrarian reform program:

SEC. 4. The State shall, by law, undertake an agrarian reform program founded on the

farmers and regular farmworkers, who are landless, to own directly or collectively thethey till or, in the case of other farmworkers, to receive a just share of the fruits thereo

this end, the State shall encourage and undertake the just distribution of all agricultura

subject to such priorities and reasonable retention limits as the Congress may prescrib

into account ecological, developmental, or equity considerations and subject to the pa

just compensation. In determining retention limits, the State shall respect the right of landowners. The State shall further provide incentives for voluntary land-sharing.

Earlier, in fact, R.A. No. 3844, otherwise known as the Agricultural Land Reform Code, had already been

by the Congress of the Philippines on August 8, 1963, in line with the above-stated principles. This was

substantially superseded almost a decade later by P.D. No. 27, which was promulgated on October 21, 19

with martial law, to provide for the compulsory acquisition of private lands for distribution among tenant-and to specify maximum retention limits for landowners.

The people power revolution of 1986 did not change and indeed even energized the thrust for agrarian ref

Thus, on July 17, 1987, President Corazon C. Aquino issued E.O. No. 228, declaring full land ownership

of the beneficiaries of P.D. No. 27 and providing for the valuation of still unvalued lands covered by the d

well as the manner of their payment. This was followed on July 22, 1987 by Presidential Proclamation No

instituting a comprehensive agrarian reform program (CARP), and E.O. No. 229, providing the mechanicimplementation.

Subsequently, with its formal organization, the revived Congress of the Philippines took over legislative p

from the President and started its own deliberations, including extensive public hearings, on the improvemthe interests of farmers. The result, after almost a year of spirited debate, was the enactment of R.A. No. 6

otherwise known as the Comprehensive Agrarian Reform Law of 1988, which President Aquino signed o10, 1988. This law, while considerably changing the earlier mentioned enactments, nevertheless gives thesuppletory effect insofar as they are not inconsistent with its provisions.4

The above-captioned cases have been consolidated because they involve common legal questions, includ

serious challenges to the constitutionality of the several measures mentioned above. They will be the subj


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one common discussion and resolution, The different antecedents of each case will require separate treatment,however, and will first be explained hereunder.

G.R. No. 79777

Squarely raised in this petition is the constitutionality of P.D. No. 27, E.O. Nos. 228 and 229, and R.A. No. 6657.

The subjects of this petition are a 9-hectare riceland worked by four tenants and owned by petitioner Nicolas

Manaay and his wife and a 5-hectare riceland worked by four tenants and owned by petitioner Augustin Hermano,Jr. The tenants were declared full owners of these lands by E.O. No. 228 as qualified farmers under P.D. No. 27.

The petitioners are questioning P.D. No. 27 and E.O. Nos. 228 and 229 on grounds inter alia of separation of

powers, due process, equal protection and the constitutional limitation that no private property shall be taken forpublic use without just compensation.

They contend that President Aquino usurped legislative power when she promulgated E.O. No. 228. The said

measure is invalid also for violation of Article XIII, Section 4, of the Constitution, for failure to provide for

retention limits for small landowners. Moreover, it does not conform to Article VI, Section 25(4) and the otherrequisites of a valid appropriation.

In connection with the determination of just compensation, the petitioners argue that the same may be made only

by a court of justice and not by the President of the Philippines. They invoke the recent cases ofEPZA v.

Dulay5andManotok v. National Food Authority.6Moreover, the just compensation contemplated by the Bill of

Rights is payable in money or in cash and not in the form of bonds or other things of value.

In considering the rentals as advance payment on the land, the executive order also deprives the petitioners of their

property rights as protected by due process. The equal protection clause is also violated because the order placesthe burden of solving the agrarian problems on the owners only of agricultural la nds. No similar obligation is

imposed on the owners of other properties.

The petitioners also maintain that in declaring the beneficiaries under P.D. No. 27 to be the owners of the lands

occupied by them, E.O. No. 228 ignored judicial prerogatives and so violated due process. Worse, the measure

would not solve the agrarian problem because even the small farmers are deprived of their lands and the retentionrights guaranteed by the Constitution.

In his Comment, the Solicitor General stresses that P.D. No. 27 has already been upheld in the earlier cases

ofChavez v. Zobel,7Gonzales v. Estrella,

8and Association of Rice and Corn Producers of the Philippines, Inc. v.

The National Land Reform Council. 9The determination of just compensation by the executive authorities

conformably to the formula prescribed under the questioned order is at best initial or preliminary only. It does not

foreclose judicial intervention whenever sought or warranted. At any rate, the challenge to the order is prematurebecause no valuation of their property has as yet been made by the Department of Agrarian Reform. The

petitioners are also not proper parties because the lands owned by them do not exceed the maximum retention

limit of 7 hectares.

Replying, the petitioners insist they are proper parties because P.D. No. 27 does not provide for retention limits ontenanted lands and that in any event their petition is a class suit brought in behalf of landowners with landholdings

below 24 hectares. They maintain that the determination of just compensation by the administrative authorities is a

final ascertainment. As for the cases invoked by the public respondent, the constitutionality of P.D. No. 2merely assumed in Chavez, while what was decided in Gonzaleswas the validity of the imposition of mart

In the amended petition dated November 22, 1588, it is contended that P.D. No. 27, E.O. Nos. 228 and 22

(except Sections 20 and 21) have been impliedly repealed by R.A. No. 6657. Nevertheless, this statute sh

itself also be declared unconstitutional because it suffers from substantially the same infirmities as the earmeasures.

A petition for intervention was filed with leave of court on June 1, 1988 by Vicente Cruz, owner of a 1. 8

hectare land, who complained that the DAR was insisting on the implementation of P.D. No. 27 and E.O.

despite a compromise agreement he had reached with his tenant on the payment of rentals. In a subsequendated April 10, 1989, he adopted the allegations in the basic amended petition that the above- mentionedenactments have been impliedly repealed by R.A. No. 6657.

G.R. No. 79310

The petitioners herein are landowners and sugar planters in the Victorias Mill District, Victorias, Negros

Occidental. Co-petitioner Planters' Committee, Inc. is an organization composed of 1,400 planter-membepetition seeks to prohibit the implementation of Proc. No. 131 and E.O. No. 229.

The petitioners claim that the power to provide for a Comprehensive Agrarian Reform Program as decreeConstitution belongs to Congress and not the President. Although they agree that the President could exer

legislative power until the Congress was convened, she could do so only to enact emergency measures du

transition period. At that, even assuming that the interim legislative power of the President was properly e

Proc. No. 131 and E.O. No. 229 would still have to be annulled for violating the constitutional provisions

compensation, due process, and equal protection.

They also argue that under Section 2 of Proc. No. 131 which provides:

Agrarian Reform Fund.-There is hereby created a special fund, to be known as the Agrarian Reform Fund

initial amount of FIFTY BILLION PESOS (P50,000,000,000.00) to cover the estimated cost of the

Comprehensive Agrarian Reform Program from 1987 to 1992 which shall be sourced from the receipts of

of the assets of the Asset Privatization Trust and Receipts of sale of ill-gotten wealth received through the

Presidential Commission on Good Government and such other sources as government may deem appropr

amounts collected and accruing to this special fund shall be considered automatically appropriated for the

authorized in this Proclamation the amount appropriated is in futuro, not in esse. The money needed to cocost of the contemplated expropriation has yet to be raised and cannot be appropriated at this t ime.

Furthermore, they contend that taking must be simultaneous with payment of just compensation as it is

traditionally understood, i.e., with money and in full, but no such payment is contemplated in Section 5 of

No. 229. On the contrary, Section 6, thereof provides that the Land Bank of the Philippines "shall compenlandowner in an amount to be established by the government, which shall be based on the owner's declaracurrent fair market value as provided in Section 4 hereof, but subject to certain controls to be defined and

promulgated by the Presidential Agrarian Reform Council." This compensation may not be paid fully in mbut in any of several modes that may consist of part cash and part bond, with interest, maturing periodica

direct payment in cash or bond as may be mutually agreed upon by the beneficiary and the landowner or be prescribed or approved by the PARC.


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The petitioners also argue that in the issuance of the two measures, no effort was made to make a careful study of

the sugar planters' situation. There is no tenancy problem in the sugar areas that can justify the application of theCARP to them. To the extent that the sugar planters have been lumped in the same legislation with other farmers,

although they are a separate group with problems exclusively their own, their right to equal protection has beenviolated.

A motion for intervention was filed on August 27,1987 by the National Federation of Sugarcane Planters (NASP)

which claims a membership of at least 20,000 individual sugar planters all over the country. On September 10,1987, another motion for intervention was filed, this time by Manuel Barcelona, et al., representing coconut and

riceland owners. Both motions were granted by the Court.

NASP alleges that President Aquino had no authority to fund the Agrarian Reform Program and that, in any event,

the appropriation is invalid because of uncertainty in the amount appropriated. Section 2 of Proc. No. 131 and

Sections 20 and 21 of E.O. No. 229 provide for an initial appropriation of fifty billion pesos and thus specifies theminimum rather than the maximum authorized amount. This is not allowed. Furthermore, the stated initial amounthas not been certified to by the National Treasurer as actually available.

Two additional arguments are made by Barcelona, to wit, the failure to establish by clear and convincing evidence

the necessity for the exercise of the powers of eminent domain, and the violation of the fundamental right to ownproperty.

The petitioners also decry the penalty for non-registration of the lands, which is the expropriation of the said land

for an amount equal to the government assessor's valuation of the land for tax purposes. On the other hand, if thelandowner declares his own valuation he is unjustly required to immediately pay the corresponding taxes on the

land, in violation of the uniformity rule.

In his consolidated Comment, the S olicitor General first invokes the presumption of constitutional ity in favor of

Proc. No. 131 and E.O. No. 229. He also justifies the nece ssity for the expropriation as explained in the "whereas"clauses of the Proclamation and submits that, contrary to the petitioner's contention, a pilot project to determine

the feasibility of CARP and a general survey on the people's opinion thereon are not indispensable prerequisites toits promulgation.

On the alleged violation of the equal protection clause, the sugar planters have failed to show that they belong to a

different class and should be differently treated. The Comment also suggests the possibility of Congress first

distributing public agricultural lands and scheduling the expropriation of private agricultural lands later. From this

viewpoint, the petition for prohibition would be premature.

The public respondent also points out that the constitutional prohibition is against the payment of public moneywithout the corresponding appropriation. There is no rule that only money already in existence can be the subject

of an appropriation law. Finally, the earmarking of fifty billion pesos as Agrarian Reform Fund, although

denominated as an initial amount, is actually the maximum sum appropriated. The word "initial" simply meansthat additional amounts may be appropriated later when necessary.

On April 11, 1988, Prudencio Serrano, a coconut planter, filed a petition on his own behalf, assailing theconstitutionality of E.O. No. 229. In addition to the arguments already raised, Serrano contends that the measure isunconstitutional because:

(1) Only public lands should be included in the CARP;

(2) E.O. No. 229 embraces more than one subject which is not expressed in the title;

(3) The power of the President to legislate was terminated on July 2, 1987; and

(4) The appropriation of a P50 billion special fund from the National Treasury did notoriginate from the House of Representatives.

G.R. No. 79744

The petitioner alleges that the then Secretary of Department of Agrarian Reform, in violation of due procthe requirement for just compensation, placed his landholding under the coverage of Operation Land Tran

Certificates of Land Transfer were subsequently issued to the private respondents, who then refused paymlease rentals to him.

On September 3, 1986, the petitioner protested the erroneous inclusion of his small landholding under Op

Land transfer and asked for the recall and cancellation of the Certificates of Land Transfer in the name ofprivate respondents. He claims that on December 24, 1986, his petition was denied without hearing. On F

17, 1987, he filed a motion for reconsideration, which had not been acted upon when E.O. Nos. 228 and 2

issued. These orders rendered his motion moot and academic because they directly effected the transfer o

to the private respondents.

The petitioner now argues that:

(1) E.O. Nos. 228 and 229 were invalidly issued by the President of the Philippines.

(2) The said executive orders are violative of the constitutional provision that no privaproperty shall be taken without due process or just compensation.

(3) The petitioner is denied the right of maximum retention provided for under th e 19

Constitution.

The petitioner contends that the issuance of E.0. Nos. 228 and 229 shortly before Congress convened is aand arbitrary, besides violating the doctrine of separation of powers. The legislative power granted to the

under the Transitory Provisions refers only to emergency measures that may be promulgated in the propeof the police power.

The petitioner also invokes his rights not to be deprived of his property without due process of law and toretention of his small parcels of riceholding as guaranteed under Article XIII, Section 4 of the Constitutio

likewise argues that, besides denying him just compensation for his land, the provisions of E.O. No. 228 dthat:

Lease rentals paid to the landowner by the farmer-beneficiary after October 21, 1972

considered as advance payment for the land.


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is an unconstitutional taking of a vested property right. It is also his contention that the inclusion of even small

landowners in the program along with other landowners with lands consisting of seven hectares or more isundemocratic.

In his Comment, the Solicitor General submits that the petition is premature because the motion for

reconsideration filed with the Minister of Agrarian Reform is still unresolved. As for the validity of the issuance of

E.O. Nos. 228 and 229, he argues that they were enacted pursuant to Section 6, Article XVIII of the TransitoryProvisions of the 1987 Constitution which reads:

The incumbent president shall continue to exercise legislative powers until the first Congress is convened.

On the issue of just compensation, his position is that when P.D. No. 27 was promulgated on October 21. 1972,

the tenant-farmer of agricultural land was deemed the owner of the land he was tilling. The leasehold rentals paidafter that date should therefore be considered amortization payments.

In his Reply to the public respondents, the petitioner maintains that the motion he filed was resolved on December

14, 1987. An appeal to the Office of the President would be useless with the promulgation of E.O. Nos. 228 and

229, which in effect sanctioned the validity of the public respondent's acts.

G.R. No. 78742

The petitioners in this case invoke the right of retention granted by P.D. No. 27 to owners of rice and corn lands

not exceeding seven hectares as long as they are cultivating or intend to cultivate the same. Their respective landsdo not exceed the statutory limit but are occupied by tenants who are actually cultivating such lands.

According to P.D. No. 316, which was promulgated in implementation of P.D. No. 27:

No tenant-farmer in agricultural lands primarily devoted to rice and corn shall be ejected or

removed from his farmholding until such time as the respective rights of the tenant- farmers

and the landowner shall have been determined in accordance with the rules and regulations

implementing P.D. No. 27.

The petitioners claim they cannot eject their tenants and so are unable to enjoy their right of retention because the

Department of Agrarian Reform has so far not issued the implementing rules required under the above-quoted

decree. They therefore ask the Court for a writ of mandamus to compel the respondent to issue the said rules.

In his Comment, the public respondent argues that P.D. No. 27 ha s been amended by LOI 474 removing any right

of retention from persons who own other agricultural lands of more than 7 hectares in aggregate area or lands used

for residential, commercial, industrial or other purposes from which they derive adequate income for their family.

And even assuming that the petitioners do not fall under its terms, the regulations implementing P.D. No. 27 havealready been issued, to wit, the Memorandum dated July 10, 1975 (Interim Guidelines on Retention by Small

Landowners, with an accompanying Retention Guide Table), Memorandum Circular No. 11 dated April 21, 1978,

(Implementation Guidelines of LOI No. 474), Memorandum Circular No. 18-81 dated December 29,1981

(Clarificatory Guidelines on Coverage of P.D. No. 27 and Retention by Small Landowners), and DAR

Administrative Order No. 1, series of 1985 (Providing for a Cut-off Date for Landowners to Apply for Retentionand/or to Protest the Coverage of their Landholdings under Operation Land Transfer pursuant to P.D. No. 27). For

failure to file the corresponding applications for retention under these measures, the petitioners are now bfrom invoking this right.

The public respondent also stresses that the petitioners have prematurely initiated this case notwithstandin

pendency of their appeal to the President of the Philippines. Moreover, the issuance of the implementing

assuming this has not yet been done, involves the exercise of discretion which cannot be controlled throu

writ of mandamus. This is especially true if this function is entrusted, as in this case, to a separate departmthe government.

In their Reply, the petitioners insist that the above-cited measures are not applicable to them because they

own more than seven hectares of agricultural land. Moreover, assuming arguendo that the rules were intecover them also, the said measures are nevertheless not in force because they have not been published as

by law and the ruling of this Court in Tanada v. Tuvera.10As for LOI 474, the same is ineffective for theadditional reason that a mere letter of instruction could not have repealed the presidential decree.

I

Although holding neither purse nor sword and so regarded as the weakest of the three departments of the

government, the judiciary is nonetheless vested with the power to annul the acts of either the legislative o

executive or of both when not conformable to the fundamental law. This is the reason for what some quar

the doctrine of judicial supremacy. Even so, this power is not lightly assumed or readily exercised. The do

separation of powers imposes upon the courts a proper restraint, born of the nat ure of their functions and o

respect for the other departments, in striking down the acts of the legislative and the executive as unconstThe policy, indeed, is a blend of courtesy and caution. To doubt is to sustain. The theory is that before the

done or the law was enacted, earnest studies were made by Congress or the President, or both, to insure th

Constitution would not be breached.

In addition, the Constitution itself lays down stringent conditions for a declaration of unconstitutionality, therefor the concurrence of a majority of the members of the Supreme Court who took part in the delibera

voted on the issue during their session en banc.11And as established by judge made doctrine, the Court w

assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judic

inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving

conflict of legal rights susceptible of judicial determination, the constitutional question must have been

opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the of the case itself. 12

With particular regard to the requirement of proper party as applied in the cases before us, we hold that th

satisfied by the petitioners and intervenors because each of them has sustained or is in danger of sustainin

immediate injury as a result of the acts or measures complained of.13And even if, strictly speaking, they acovered by the definition, it is still within the wide discretion of the Court to waive the requirement and sothe impediment to its addressing and resolving the serious constitutional questions raised.

In the first Emergency Powers Cases, 14ordinary citizens and taxpayers were allowed to question the

constitutionality of several executive orders issued by President Quirino although they were invoking on l

indirect and general interest shared in common with the public. The Court dismissed the objection that the

not proper parties and ruled that "the transcendental importance to the public of these cases demands thatsettled promptly and definitely, brushing aside, if we must, technicalities of procedure." We have since th

applied this exception in many other cases.15


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The other above-mentioned requisites have also been met in the present petitions.

In must be stressed that despite the inhibitions pressing upon the Court when confronted with constitutional issues

like the ones now before it, it will not hesitate to declare a law or act invalid when it is convinced that this must be

done. In arriving at this conclusion, its only criterion will be the Constitution as God and its conscience give it the

light to probe its meaning and discover its purpose. Personal motives and political considerations are irrelevanciesthat cannot influence its decision. Blandishment is as ineffectual as intimidation.

For all the awesome power of the Congress and the Executive, the Court will not hesitate to "make the hammer

fall, and heavily," to use Justice Laurel's pithy language, where the acts of these departments, or of any public

official, betray the people's will as expressed in the Constitution.

It need only be added, to borrow again the words of Justice Laurel, that

... when the judiciary mediates to allocate constitutional boundaries, it does not assert anysuperiority over the other departments; it does not in reality nullify or invalidate an act of the

Legislature, but only asserts the solemn and sacred obligation assigned to it by the

Constitution to determine conflicting claims of authority under the Constitution and to

establish for the parties in an actual controversy the rights which that instrument secures and

guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy"which properly is the power of judicial review under the Constitution.16

The cases before us categorically raise constitutional questions that this Court must categorically resolve. And so

we shall.

II

We proceed first to the examination of the preliminary issues before resolving the more serious challenges to the

constitutionality of the several measures involved in these petitions.

The promulgation of P.D. No. 27 by P resident Marcos in the exercise of his powers under martial law has already

been sustained inGonzales v. Estrellaand we find no reason to modify or reverse it on that issue. As for the power

of President Aquino to promulgate Proc. No. 131 and E.O. Nos. 228 and 229, the same was authorized underSection 6 of the Transitory Provisions of the 1987 Constitution, quoted above.

The said measures were issued by President Aquino before July 27, 1987, when the Congress of the Philippines

was formally convened and took over le gislative power from her. They are not "midnight" enactments intended to

pre-empt the legislature because E.O. No. 228 was issued on July 17, 1987, and the other measures, i.e., Proc. No.

131 and E.O. No. 229, were both issued on July 22, 1987. Neither is it correct to say that these measures ceased tobe valid when she lost her legislative power for, like any statute, they continue to be in force unless modified or

repealed by subsequent law or declared invalid by the courts. A statute does notipso factobecome inoperative

simply because of the dissolution of the legislature that enacted it. By the same token, President Aquino's loss of

legislative power did not have the effect of invalidating all the measures enacted by her when and as long as shepossessed it.

Significantly, the Congress she is alleged to have undercut has not rejected but in fact substantially affirmed the

challenged measures and has specifically provided that they shall be suppletory to R.A. No. 6657 whenever not

inconsistent with its provisions. 17Indeed, some portions of the said measures, like the creation of the P50

fund in Section 2 of Proc. No. 131, and Sections 20 and 21 of E.O. No. 229, have been incorporated by rein the CARP Law. 18

That fund, as earlier noted, is itself being questioned on the ground that it does not conform to the require

a valid appropriation as specified in the Constitution. Clearly, however, Proc. No. 131 is not an appropria

measure even if it does provide for the creation of said fund, for that is not its principal purpose. An appro

law is one the primary and specific purpose of which is to authorize the release of public funds from thetreasury.19The creation of the fund is only incidental to the main objective of the proclamation, which is a

reform.

It should follow that the specific constitutional provisions invoked, to wit, Section 24 and Section 25(4) o

VI, are not applicable. With particular reference to Section 24, this obviously could not have been compli

for the simple reason that the House of Representatives, which now has the exclusive power to initiateappropriation measures, had not yet been convened when the proclamation was issued. The legislative pothen solely vested in the President of the Philippines, who embodied, as it were, both houses of Congress.

The argument of some of the petitioners that Proc. No. 131 and E.O. No. 229 should be invalidated becau

do not provide for retention limits as required by Article XIII, Section 4 of the Constitution is no longer teR.A. No. 6657 does provide for such limits now in Section 6 of the law, which in fact is one of its most

controversial provisions. This section declares:

Retention Limits.Except as otherwise provided in this Act, no person may own or directly or indirectly, any public or private agricultural land, the size of which shall va

according to factors governing a viable family-sized farm, such as commodity produc

terrain, infrastructure, and soil fertility as dete rmined by the Presidential Agrarian RefCouncil (PARC) created hereunder, but in no case shall retention by the landowner ex

five (5) hectares. Three (3) hectares may be awarded to each child of the landowner,

the following qualifications: (1) that he is at least fifteen (15) years of age; and (2) tha

actually tilling the land or directly managing the farm; Provided, That landowners wh

have been covered by Presidential Decree No. 27 shall be allowed to keep the area orretained by them thereunder, further, That original homestead grantees or direct comp

heirs who still own the original homestead at the time of the approval of this Act shall

the same areas as long as they continue to cultivate said homestead.

The argument that E.O. No. 229 violates the constitutional requirement that a bill shall have only one subj

be expressed in its title, deserves only short attention. It is settled that the title of the bill does not have to catalogue of its contents and will suffice if the matters embodied in the text are relevant to each other andinferred from the title. 20

The Court wryly observes that during the past dictatorship, every presidential issuance, by whatever nam

called, had the force and effect of law because it came from President Marcos. Such are the ways of desp

Hence, it is futile to argue, as the petitioners do in G.R. No. 79744, that LOI 474 could not have repealed 27 because the former was only a letter of instruction. The important thing is that it was issued by PresideMarcos, whose word was law during that time.

But for all their peremptoriness, these issuances from the President Marcos still had to comply with the

requirement for publication as this Court held inTanada v. Tuvera. 21Hence, unless published in the Offic


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Gazette in accordance with Article 2 of the Civil Code, they could not have a ny force and effect if they were

among those enactments successfully challenged in that case. LOI 474 was published, though, in the OfficialGazette dated November 29,1976.)

Finally, there is the contention of the public respondent in G.R. No. 78742 that the writ of mandamus cannot issue

to compel the performance of a discretionary act, especially by a specific department of the government. That is

true as a general proposition but is subject to one important qualification. Correctly and categorically stated, the

rule is that mandamus will lie to compel the discharge of the discretionary duty itself but not to control thediscretion to be exercised. In other words, mandamus can issue to require action only but not specific action.

Whenever a duty is imposed upon a public official and an unnecessary and unreasonable delayin the exercise of such duty occurs, if it is a clear duty imposed by law, the courts will

intervene by the extraordinary legal remedy of mandamus to compel action. If the duty is

purely ministerial, the courts will require specific action. If the duty is purely discretionary,the courts by mandamuswill require action only. For example, if an inferior court, public

official, or board should, for an unreasonable length of time, fail to decide a particular

question to the great detriment of all parties concerned, or a court should refuse to take

jurisdiction of a cause when the law clearly gave it jurisdiction mandamus will issue, in the

first case to require a decision, and in the second to require that jurisdiction be taken of thecause. 22

And while it is true that as a rule the writ will not be proper as long as there is still a plain, speedy and adequate

remedy available from the administrative authorities, resort to the courts may still be permitted if the issue raisedis a question of law. 23

III

There are traditional distinctions between the police power and the power of eminent domain that logicallypreclude the application of both powers at the same time on the same subject. In the case ofCity of Baguio v.NAWASA, 24for example, where a law required the transfer of all municipal waterworks systems to the NAWASA

in exchange for its assets of equivalent value, the Court held that the power being exercised was eminent domain

because the property involved was wholesome and intended for a public use. Property condemned under the police

power is noxious or intended for a noxious purpose, such as a building on the verge of collapse, which should be

demolished for the public safety, or obscene materials, which should be destroyed in the interest of public morals.

The confiscation of such property is not compensable, unlike the taking of property under the power ofexpropriation, which requires the payment of just c ompensation to the owner.

In the case ofPennsylvania Coal Co. v. Mahon, 25Justice Holmes laid down the limits of the police power in a

famous aphorism: "The general rule at least is that while property may be regulated to a certain extent, if

regulation goes too far it will be recognized as a taking." The regulation that went "too far" was a law prohibitingmining which might cause the subsidence of structures for human habitation constructed on the land surface. This

was resisted by a coal company which had earlier granted a deed to the land over its mine but reserved all mining

rights thereunder, with the grantee assuming all risks and waiving any damage claim. The Court held the lawcould not be sustained without compensating the grantor. Justice Brandeis filed a lone dissent in which he arguedthat there was a valid exercise of the police power. He said:

Every restriction upon the use of property imposed in the exercise of the police power

deprives the owner of some right the retofore enjoyed, and is, in that sense, an abridgment by

the State of rights in property without making compensation. But restriction imposed

protect the public health, safety or morals from dangers threatened is not a taking. Threstriction here in question is merely the prohibition of a noxious use. The property so

restricted remains in the possession of its owner. The state does not appropriate it or muse of it. The state merely prevents the owner from making a use which interferes wit

paramount rights of the public. Whenever the use prohibited ceases to be noxiousa

because of further changes in local or social conditionsthe restriction will have to b

removed and the owner will again be free to enjoy his property as heretofore.

Recent trends, however, would indicate not a polarization but a mingling of the police power and the poweminent domain, with the latter being used as an implement of the former like the power of taxation. The

employment of the taxing power to achieve a police purpose has long been accepted.26As for the power oexpropriation, Prof. John J. Costonis of the University of Illinois College of Law (referring to the earlier c

Euclid v. Ambler Realty Co., 272 US 365, which sustained a zoning law under the police power) makes tfollowing significant remarks:

Euclid, moreover, was decided in an era when judges located the Police and eminent

powers on different planets. Generally speaking, they viewed eminent domain as

encompassing public acquisition of private property for improvements that would be

for public use," literally construed. To the police power, on the other hand, they assign

less intrusive task of preventing harmful externalities a point reflected in the Euclid o

reliance on an analogy to nuisance law to bolster its support of zoning. So long as supof a privately authored harm bore a plausible relation to some legitimate "public purp

pertinent measure need have afforded no compensation whatever. With the progressiv

of government's involvement in land use, the distance between the two powers has co

considerably. Today government often employs eminent domain interchangeably with

useful complement to the police power-- a trend expressly approved in the Supreme C1954 decision in Berman v. Parker, which broadened the reach of eminent domain's "use" test to match that of the police power's standard of "public purpose."27

The Berman case sustained a redevelopment project and the improvement of blighted areas in the Distric

Columbia as a proper exercise of the police power. On the role of eminent domain in the attainment of thipurpose, Justice Douglas declared:

If those who govern the District of Columbia decide that the Nation's Capital should bbeautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in th

Once the object is within the authority of Congress, the right to realize it through the eof eminent domain is clear.

For the power of eminent domain is merely the means to the end.28

InPenn Central Transportation Co. v. New York City, 29decided by a 6-3 vote in 1978, the U.S Supreme sustained the respondent's Landmarks Preservation Law under which the owners of the Grand Central Ter

had not been allowed to construct a multi-story office building over the Terminal, which had been design

historic landmark. Preservation of the landmark was held to be a valid objective of the police power. Thehowever, was that the owners of the Terminal would be deprived of the right to use the airspace above it a

other landowners in the area could do so over their respective properties. While insisting that there was he


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taking, the Court nonetheless recognized certain compensatory rights accruing to Grand Central Terminal which it

said would "undoubtedly mitigate" the loss caused by the regulation. This "fair compensation," as he called it, wasexplained by Prof. Costonis in this wise:

In return for retaining the Terminal site in its pristine landmark status, Penn Central was authorized to transfer to

neighboring properties the authorized but unused rights accruing to the site prior to the Terminal's designation as a

landmarkthe rights which would have been exhausted by the 59-story building that the city refused to

countenance atop the Terminal. Prevailing bulk restrictions on neighboring sites were proportionately relaxed,theoretically enabling Penn Central to recoup its losses at the Terminal site by constructing or selling to others the

right to construct larger, hence more profitable buildings on the transferee sites.30

The cases before us present no knotty complication insofar as the question of compensable taking is concerned. To

the extent that the measures under challenge merely prescribe retention limits for landowners, there is an exercise

of the police power for the regulation of private property in accordance with t he Constitution. But where, to carryout such regulation, it becomes necessary to deprive such owners of whatever lands they may own in excess of the

maximum area allowed, there is definitely a taking under the power of eminent domain for which payment of just

compensation is imperative. The taking contemplated is not a mere limitation of the use of the land. What is

required is the surrender of the title to and the physical possession of the said excess and all beneficial rights

accruing to the owner in favor of the farmer-beneficiary. This is definitely an exercise not of the police power butof the power of eminent domain.

Whether as an exercise of the police power or of the power of eminent domain, the several measures before us are

challenged as violative of the due process and equal protection clauses.

The challenge to Proc. No. 131 and E.O. Nos. 228 and 299 on the ground that no retention limits are prescribed

has already been discussed and dismissed. It is noted that although they excited many bitter exchanges during the

deliberation of the CARP Law in Congress, the retention limits finally agreed upon ar

Documents

Second Set GANCAYCO to Delgado