G.R. No. 111988 October 14, 1994

ASSOCIATED LABOR UNIONS (ALU)-TUCP in behalf of its members at AMS FARMING CORPORATION, petitioner, vs. VOLUNTARY ARBITRATOR ROSALINA LETRONDO-MONTEJO and AMS FARMING CORPORATION, respondent.

MENDOZA, J.:

This is a petition for certiorari to set aside the decision dated July 19, 1993 of public respondent Voluntary Arbitrator Rosalina Letrondo-Montejo insofar as it dismissed the claim of petitioner's members for holiday pay for December 4, 1992, which had been declared a special day for the holding of Sangguniang Kabataan election.

The facts are as follows:

On December 27, 1990, petitioner Associated Labor Unions (ALU-TUCP and private respondent AMS Farming Corporation entered into a five-year Collective Bargaining Agreement beginning November 1, 1990 and ending midnight of October 31, 1995. The CBA covers the regular daily-paid rank-and-file employees of private respondent AMS Farming Corp. at Sampao, Kapalong, Davao del Norte and Magatos, Asuncion, Davao del Norte.

Art. VII, sec 3. of the CBA provides:

New Year, Maundy Thursday, Good Friday, Araw ng Kagitingan, 1st of May, 12th of June, Araw ng Dabaw, 4th of July, Last Sunday of August, 1st November, 30th of November, 25th of December, 30th of December and the days designated by law for holding referendum and local/national election shall be considered paid regular holidays. Consequently, they shall receive their basic pay even if they do not work on those days. Any employee required to work on these holidays shall be paid at last TWO HUNDRED PERCENT (200%) of his daily wage. Covered employees performing overtime work on these days shall be entitled to another THIRTY PERCENT (30%) overtime pay. It is understood however, that any covered employee who shall be absent for more than one day immediately preceding the paid holiday shall not be entitled to the holiday pay.

The President of the Philippines declared December 4, 1992 a "special day" for the holding of election for Sangguniang Kabataan (SK) throughout the nation. Employees covered by the CBA subsequently filed claims for the payment to them of holiday pay for that day. Private respondent, however, refused their claims on the ground that December 4, 1992 was not a regular holiday within the contemplation of the CBA.

The matter was eventually submitted to voluntary arbitration. At the conference held on February 19, 1993, the parties agreed, among others things, to submit the following issue:

Is the Sangguniang Kabataan Election Day considered a regular holiday for purpose of said Section 3, Article VII of the CBA?

In connection with this issue, they agreed that the Sangguniang Kabataan Election Day was a holiday as decreed by the President of the Philippines.

The parties presented position papers and thereafter submitted the case for resolution.

On July 19, 1993, public respondent rendered an "Award" 1 in which, while holding employees who had become regular employees on November 1, 1990 entitled to salary increases under the CBA, nonetheless dismissed their claim for holiday pay for December 4, 1992 on the ground that the Sangguniang Kabataan election "by any stretch of the imagination cannot be considered as a local election within the meaning of CBA because not all people can vote in the said election but only qualified youths." According to the Voluntary Arbitrator, "A 'local election' is generally understood to mean the election by the people of their local leaders like the governors, mayors, members of the provincial and municipal councils, and barangay officials. And when a local election is held, the day is declared a non-working holiday. This is our experience in local and national elections. In the case of the Sangguniang Kabataan (SK) elections, it was a working holiday. Except for the qualified youthful voters, not everybody noticed said election as not everyone voted in the said election."

Hence, this petition, the only issue in which is whether the election for the Sangguniang Kabataan on December 4, 1992 was a "local/national election" within the contemplation of Art. VII, sec. 3 of the CBA so as to entitle petitioner's members, who are employed at the AMS Farming Corp. to the payment of holiday pay for that day.

We hold that it is and that, in denying petitioner's claim, respondent Voluntary Arbitrator denied members of petitioner union substantial justice as a result of her erroneous interpretation of the CBA, thereby justifying judicial review. 2

First. The Sangguniang Kabataan (SK) is part of the local government structure. The Local Government Code (Rep. Act. No. 7160) creates in every barangay a Sangguniang Kabataan composed of a chairman,

seven (7) members, a secretary and a treasurer. 3 The chairman and the seven members are elected by the Katipunan ng Kabataan, which is composed of citizens of the Philippines residing in the barangay for at least six (6) months, who are between the ages of 15 and 21 and who are registered as members. 4 The chairman of the SK is an ex officio member of the Sangguniang Baranggay with the same powers duties, functions and privileges as the regular members of the Sangguniang Barangay. 5 The President of the Pederasyon ng mga Sangguniang Kabataan, which is imposed of the SK chairmen of the sangguniang kabataan of the barangays in the province, city, or municipality, is an ex officio member of the Sangguniang Panlalawigan, Sangguniang Panlungsod, and Sangguniang Bayan. 6

Hence, as the Solicitor General points out, the election for members of the SK may properly be considered a "local election" within the meaning of Art. VII, sec 3 of the CBA and the day on which it is held to be a holiday, thereby entitling petitioners members at the AMS Farming Corp. to the payment of holiday on such day.

Second. The Voluntary Arbitrator held, however, that the election for members of the SK cannot be considered a local election as the election for Governors , Vice Governors, Mayors and Vice Mayors and the various local legislative assemblies (sanggunians) because the SK election is participated in only by the youth who are between the ages of 15 and 21 and for this reason the day is not a nonworking holiday.

To begin with, it is not true that December 4, 1992 was not a nonworking holiday. It was a nonworking holiday and this was announced in the media. 7 In Proclamation No. 118 dated December 2, 1992 President Ramos declared the day as "a special day through the country on the occasion of the Sangguniang Kabataan Elections" and enjoined all "local government units through their respective

Chief Local Executives [to] extend all possible assistance and support to ensure the smooth conduct of the general elections."

A "special day" is a "special day", as provided by the Administrative Code of 1987. 8 On the other hand, the term "general elections" means, in the context of SK elections, the regular elections for members of the SK, as distinguished from the special elections for such officers. 9

Moreover, the fact that only those between 15 and 21 take part in the election for members of the SK does not make such election any less a regular local election. The Constitution provides, for example, for the sectoral representatives in the House of Representatives of, among others, women and youth. 10 Only voters belonging to the relevant sectors can take part in the election of their representatives. Yet it cannot be denied that such election is a regular national election and the day set for its holding, a holiday.

Third. Indeed, the CBA provision in question merely reiterates the provision on paid holidays. Thus, the Labor Code provides:

Art. 94. Right to holiday pay. — (a) Every worker shall be paid his regular daily wage during regular holidays except in retail and service establishments regularly employing less than ten (10) workers;

(b) The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate; and

(c) As used in this Article, "holiday" includes: New Years Day, Maundy Thursday, Good Friday, the ninth of April, the first of May, the twelfth of June, the fourth of July, the thirtieth

of November, the twenty-fifth and the thirtieth of December, and the day designated by law for holding a general election.

As already explained, the phrase "general election" means regular local and national elections.

Consequently, whether in the context of the CBA or the Labor Code, December 4, 1992 was a holiday for which holiday pay should be paid by respondent employer.

WHEREFORE, the decision dated July 19, 1993 of public respondent Rosalina Letrondo-Montejo, insofar as it dismissed petitioner's claim for holiday pay, is SET ASIDE and private respondent is ORDERED to pay petitioner's members their regular holiday pay for December 4, 1992 in accordance with Art. VII, sec. 3 of the Collective Bargaining Agreement.

SO ORDERED.

G.R. No. 124893 April 18, 1997

LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents.

PUNO, J.:

Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of respondent Commission on Elections (COMELEC) en banc suspending her proclamation as the duly elected Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Municipality of Bangui, Ilocos Norte.

The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was scheduled to be held on May 6, 1996. On March 16, 1996, petitioner applied for registration as member and voter of the Katipunan ng Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Board of Election Tellers, however, denied her application on the ground that petitioner, who was then twenty-one years and ten (10) months old, exceeded the age limit for membership in the Katipunan ng Kabataan as laid down in Section 3 [b] of COMELEC Resolution No. 2824.

On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang Member and Voter" with the Municipal Circuit Trial Court, Bangui-Pagudpud-Adams-Damalneg, Ilocos Norte. In a decision dated April 18, 1996, the said court found petitioner qualified and ordered her registration as member and voter in the Katipunan ng Kabataan. 1 The Board of Election Tellers appealed to the Regional Trial Court, Bangui, Ilocos Norte. 2 The presiding judge of the Regional Trial Court, however, inhibited himself from acting on the appeal due to his close association with petitioner. 3

On April 23, 1996, petitioner filed her certificate of candidacy for the position of Chairman, Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui, Province of Ilocos Norte. In a letter dated April 23, 1996, respondent Election Officer Dionisio F. Rios, per advice of Provincial Election Supervisor Noli Pipo, 4 disapproved petitioner's certificate of candidacy again due to her age. 5 Petitioner, however, appealed to COMELEC Regional Director Filemon A. Asperin who set aside the order of respondents and allowed petitioner to run. 6

On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of her ineligibility and giving her 24 hours to explain why her certificate of candidacy should not be disapproved. 7 Earlier and without the knowledge of the COMELEC officials, private respondent Florencio G. Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan, filed with the COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of Candidacy" against petitioner Garvida for falsely representing her age qualification in her certificate of candidacy. The petition was sent by facsimile 8 and registered mail on April 29, 1996 to the Commission on Elections National Office, Manila.

On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the COMELEC en banc issued an order directing the Board of Election Tellers and Board of Canvassers of Barangay San Lorenzo to suspend the proclamation of petitioner in the event she won in the election. The order reads as follows:

Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of Candidacy" by petitioner Florencio G. Sales, Jr. against Lynette G. Garvida, received on April 29, 1996, the pertinent allegations of which reads:

xxx xxx xxx

5. That the said respondent is disqualified to become a voter and a candidate for the SK for the reason that she will be more than twenty-one (21) years of age on May 6, 1996; that she was born on June 11, 1974 as can be gleaned from her birth certificate, copy of which is hereto attached and marked as Annex "A";

6. That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo, Bangui, Ilocos Norte, she made material representation which is false and as such, she is disqualified; that her certificate of candidacy should not be given due course and that said candidacy must be cancelled;

xxx xxx xxx

the Commission, it appearing that the petition is meritorious, hereby DIRECTS the Board of Election Tellers/Board of Canvassers of Barangay San Lorenzo, Bangui, Ilocos Norte, to suspend the proclamation of Lynette G. Garvida in the event she garners the highest number of votes for the position of Sangguniang Kabataan [sic].

Meantime, petitioner is hereby required to submit immediately ten (10) copies of his petition and to pay the filing and legal research fees in the amount of P510.00.

SO ORDERED. 9

On May 6, 1996, election day, petitioner garnered 78 votes as against private respondent's votes of 76. 10 In accordance with the May 2, 1996 order of the COMELEC en banc, the Board of Election Tellers did not proclaim petitioner as the winner. Hence, the instant petition for certiorari was filed on May 27, 1996.

On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte. 11 The proclamation was "without prejudice to any further action by the Commission on Elections or any other interested party." 12 On July 5, 1996, petitioner ran in the Pambayang Pederasyon ng mga Sangguniang Kabataan for the municipality of Bangui, Ilocos Norte. She won as Auditor and was proclaimed one of the elected officials of the Pederasyon. 13

Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the COMELEC en banc to act on the petition to deny or cancel her certificate of candidacy; the second, the cancellation of her certificate of candidacy on the ground that she has exceeded the age requirement to run as an elective official of the SK.

I

Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK elections is under the supervision of the COMELEC and shall be governed by the Omnibus Election Code. 14 The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel a certificate of candidacy, viz:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before election.

In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due course to or cancel a certificate of candidacy for an elective office may be filed with the Law Department of the COMELEC on the ground that the candidate has made a false material representation in his certificate. The petition may be heard and evidence received by any official designated by the COMELEC after which the case shall be decided by the COMELEC itself. 15

Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a Division may only be entertained by the COMELEC en banc when the required number of votes to reach a decision, resolution, order or ruling is not obtained in the Division. Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by the COMELEC en banc. 16 It is therefore the COMELEC sitting in Divisions that can hear and decide election cases. This is clear from Section 3 of the said Rules thus:

Sec. 3. The Commission Sitting in Divisions. — The Commission shall sit in two (2) Divisions to hear and decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special proceedings except in accreditation of citizens' arms of the Commission. 17

In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt of the petition. It therefore acted without jurisdiction or with grave abuse of discretion when it entertained the petition and issued the order of May 2, 1996. 18

II

The COMELEC en banc also erred when it failed to note that the petition itself did not comply with the formal requirements of pleadings under the COMELEC Rules of Procedure. These requirements are:

Sec. 1. Filing of Pleadings. — Every pleading, motion and other papers must be filed in ten (10) legible copies. However, when there is more than one respondent or protestee, the petitioner or protestant must file additional number of copies of the petition or protest as there are additional respondents or protestees.

Sec. 2. How Filed. — The documents referred to in the immediately preceding section must be filed directly with the proper Clerk of Court of the Commission personally, or, unless otherwise provided in these Rules, by registered mail. In the latter case, the date of mailing is the date of filing and the requirement as to the number of copies must be complied with.

Sec. 3. Form of Pleadings, etc. — (a) All pleadings allowed by these Rules shall be printed, mimeographed or typewritten on legal size bond paper and shall be in English or Filipino.

xxx xxx xxx

Every pleading before the COMELEC must be printed, mimeographed or typewritten in legal size bond paper and filed in at least ten (10) legible copies. Pleadings must be filed directly with the proper Clerk of Court of the COMELEC personally, or, by registered mail.

In the instant case, the subject petition was not in proper form. Only two (2) copies of the petition were filed with the COMELEC. 19 Also, the COMELEC en banc issued its Resolution on the basis of the petition transmitted by facsimile, not by registered mail.

A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current. 20 The current is transmitted as a signal over regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of the elemental area in the proper position and the correct shade. 21 The receiver is equipped with a stylus or other device that produces a printed record on paper referred to as a facsimile. 22

Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of Procedure, much less by the Rules of Court. A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. 23 Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham pleading. The uncertainty of the authenticity of a facsimile pleading should have restrained the COMELEC en banc from acting on the petition and issuing the questioned order. The COMELEC en banc should have waited until it received the petition filed by registered mail.

III

To write finis to the case at bar, we shall now resolve the issue of petitioner's age.

The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in 1975 as the Kabataang Barangay, a barangay youth organization composed of all residents of the barangay who were at least 15 years but less than 18 years of age. 24 The Kabataang Barangay sought to provide its members a medium to express their views and opinions and participate in issues of transcendental importance. 25 Its affairs were administered by a barangay youth chairman together with six barangay

youth leaders who were actual residents of the barangay and were at least 15 years but less than 18 years of age. 26 In 1983, Batas Pambansa Blg. 337, then the Local Government Code, raised the maximum age of the Kabataang Barangay members from "less than 18 years of age" to "not more than 21 years of age."

The Local Government Code of 1991 changed the Kabataang Barangay into the Katipunan ng Kabataan. It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not more than 21 years old. 27 The affairs of the Katipunan ng Kabataan are administered by the Sangguniang Kabataan (SK) composed of a chairman and seven (7) members who are elected by the Katipunan ng Kabataan. 28 The chairman automatically becomes ex-officio member of the Sangguniang Barangay. 29 A member of the SK holds office for a term of three (3) years, unless sooner removed for cause, or becomes permanently incapacitated, dies or resigns from office. 30

Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the Local Government Code of 1991, viz:

Sec. 424. Katipunan ng Kabataan. — The katipunan ng kabataan shall be composed of all citizens of the Philippines actually residing in the barangay for at least six (6) months, who are fifteen (15) but not more than twenty-one (21) years of age, and who are duly registered in the list of the sangguniang kabataan or in the official barangay list in the custody of the barangay secretary.

A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang Kabataan if he possesses the following qualifications:

Sec. 428. Qualifications. — An elective official of the sangguniang kabataan must be a citizen of the Philippines, a qualified voter of the katipunan ng kabataan, a resident of the barangay for at least one (1) year immediately prior to election, at least fifteen (15) years but not more than twenty-one (21) years of age on the day of his election, able to read and write Filipino, English, or the local dialect, and must not have been convicted of any crime involving moral turpitude.

Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan must be: (a) a Filipino citizen; (b) an actual resident of the barangay for at least six months; (c) 15 but not more than 21 years of age; and (d) duly registered in the list of the Sangguniang Kabataan or in the official barangay list. Section 428 of the Code requires that an elective official of the Sangguniang Kabataan must be: (a) a Filipino citizen; (b) a qualified voter in the Katipunan ng Kabataan; (c) a resident of the barangay at least one (1) year immediately preceding the election; (d) at least 15 years but not more than 21 years of age on the day of his election; (e) able to read and write; and (f) must not have been convicted of any crime involving moral turpitude.

For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local Government Code of 1991 in Resolution No. 2824 and defined how a member of the Katipunan ng Kabataan becomes a qualified voter and an elective official. Thus:

Sec. 3. Qualifications of a voter. — To be qualified to register as a voter in the SK elections, a person must be:

a) a citizen of the Philippines;

b) fifteen (15) but not more than twenty-one (21) years of age on election day that is, he must have been born between May 6, 1975 and May 6, 1981, inclusive; and

c) a resident of the Philippines for at least one (1) year and actually residing in the barangay wherein he proposes to vote for at least six (6) months immediately preceding the elections.

xxx xxx xxx

Sec. 6. Qualifications of elective members. — An elective official of the SK must be:

a) a qualified voter;

b) a resident in the barangay for at least one (1) year immediately prior to the elections; and

c) able to read and write Filipino or any Philippine language or dialect or English.

Cases involving the eligibility or qualification of candidates shall be decided by the city/municipal Election Officer (EO) whose decision shall be final.

liA member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on election day, i.e., the voter must be born between May 6, 1975 and May 6, 1981, inclusive; and (c) a resident of the Philippines for at least one (1) year and an actual resident of the barangay at least six (6) months immediately preceding the elections. A candidate for the SK must: (a) possess the foregoing qualifications of a voter; (b) be a resident in the barangay at least one (1) year immediately preceding the elections; and (c) able to read and write.

Except for the question of age, petitioner has all the qualifications of a member and voter in the Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioner 's age is admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner, however, argues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond the scope of Sections 424 and 428 of the Local Government Code of 1991. She contends that the Code itself does not provide that the voter must be exactly 21 years of age on election day. She urges that so long as she did not turn twenty-two (22) years old, she was still twenty-one years of age on election day and therefore qualified as a member and voter in the Katipunan ng Kabataan and as candidate for the SK elections.

A closer look at the Local Government Code will reveal a distinction between the maximum age of a member in the Katipunan ng Kabataan and the maximum age of an elective SK official. Section 424 of the Code sets a member's maximum age at 21 years only. There is no further provision as to when the member shall have turned 21 years of age. On the other hand, Section 428 provides that the maximum age of an elective SK official is 21 years old "on the day of his election." The addition of the phrase "or the day of his election" is an additional qualification. The member may be more than 21 years of age on election day or on the day he registers as member of the Katipunan ng Kabataan. The elective official, however, must not be more than 21 years old on the day of election. The distinction is understandable considering that the Code itself provides more qualifications for an elective SK official than for a member of the Katipunan ng Kabataan. Dissimilum dissimilis est ratio. 31 The courts may distinguish when there are facts and circumstances showing that the legislature intended a distinction or qualification. 32

The qualification that a voter in the SK elections must not be more than 21 years of age on the day of the election is not provided in Section 424 of the Local Government Code of 1991. In fact the term "qualified voter" appears only in COMELEC Resolution No. 2824. 33 Since a "qualified voter" is not

necessarily an elective official, then it may be assumed that a "qualified voter" is a "member of the Katipunan ng Kabataan." Section 424 of the Code does not provide that the maximum age of a member of the Katipunan ng Kabataan is determined on the day of the election. Section 3 [b] of COMELEC Resolution No. 2824 is therefore ultra vires insofar as it sets the age limit of a voter for the SK elections at exactly 21 years on the day of the election.

The provision that an elective official of the SK should not be more than 21 years of age on the day of his election is very clear. The Local Government Code speaks of years, not months nor days. When the law speaks of years, it is understood that years are of 365 days each. 34 One born on the first day of the year is consequently deemed to be one year old on the 365th day after his birth — the last day of the year. 35 In computing years, the first year is reached after completing the first 365 days. After the first 365th day, the first day of the second 365-day cycle begins. On the 365th day of the second cycle, the person turns two years old. This cycle goes on and on in a lifetime. A person turns 21 years old on the 365th day of his 21st 365-day cycle. This means on his 21st birthday, he has completed the entire span of 21 365-day cycles. After this birthday, the 365-day cycle for his 22nd year begins. The day after the 365th day is the first day of the next 365-day cycle and he turns 22 years old on the 365th day.

The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It means 21 365-day cycles. It does not mean 21 years and one or some days or a fraction of a year because that would be more than 21 365-day cycles. "Not more than 21 years old" is not equivalent to "less than 22 years old," contrary to petitioner's claims. The law does not state that the candidate be less than 22 years on election day.

In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay youth official was expressly stated as ". . . at least fifteen years of age or over but less than eighteen . . ." 36

This provision clearly states that the youth official must be at least 15 years old and may be 17 years and a fraction of a year but should not reach the age of eighteen years. When the Local Government Code increased the age limit of members of the youth organization to 21 years, it did not reenact the provision in such a way as to make the youth "at least 15 but less than 22 years old." If the intention of the Code's framers was to include citizens less than 22 years old, they should have stated so expressly instead of leaving the matter open to confusion and doubt. 37

Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local Government Code of 1991 declared that one of the reasons why the Katipunan ng Kabataan was created and the Kabataang Barangay discontinued was because most, if not all, Kabataang Barangay leaders were already over 21 years of age by the time President Aquino assumed power. 38 They were not the "youth" anymore. The Local Government Code of 1991 fixed the maximum age limit at not more than 21 years 39 and the only exception is in the second paragraph of Section 423 which reads:

Sec. 423. Creation and Election. —

a) . . . ;

b) A sangguniang kabataan official who, during his term of office, shall have passed the age of twenty-one (21) years shall be allowed to serve the remaining portion of the term for which he was elected.

The general rule is that an elective official of the Sangguniang Kabataan must not be more than 21 years of age on the day of his election. The only exception is when the official reaches the age of 21 years during his incumbency. Section 423 [b] of the Code allows him to serve the remaining

portion of the term for which he was elected. According to Senator Pimentel, the youth leader must have "been elected prior to his 21st birthday." 40 Conversely, the SK official must not have turned 21 years old before his election. Reading Section 423 [b] together with Section 428 of the Code, the latest date at which an SK elective official turns 21 years old is on the day of his election. The maximum age of a youth official must therefore be exactly 21 years on election day. Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is not ultra vires insofar as it fixes the maximum age of an elective SK official on the day of his election.

In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she registered as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21) years and nine (9) months old. On the day of the elections, she was 21 years, 11 months and 5 days old. When she assumed office on June 1, 1996, she was 21 years, 11 months and 20 days old and was merely ten (10) days away from turning 22 years old. Petitioner may have qualified as a member of the Katipunan ng Kabataan but definitely, petitioner was over the age limit for elective SK officials set by Section 428 of the Local Government Code and Sections 3 [b] and 6 of Comelec Resolution No. 2824. She was ineligible to run as candidate for the May 6, 1996 Sangguniang Kabataan elections.

The requirement that a candidate possess the age qualification is founded on public policy and if he lacks the age on the day of the election, he can be declared ineligible. 41 In the same vein, if the candidate is over the maximum age limit on the day of the election, he is ineligible. The fact that the candidate was elected will not make the age requirement directory, nor will it validate his election. 42 The will of the people as expressed through the ballot cannot cure the vice of ineligibility. 43

The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the highest number of votes in the May 6, 1996 elections, to be declared elected. 44 A defeated candidate

cannot be deemed elected to the office. 45 Moreover, despite his claims, 46 private respondent has failed to prove that the electorate themselves actually knew of petitioner's ineligibility and that they maliciously voted for her with the intention of misapplying their franchises and throwing away their votes for the benefit of her rival candidate. 47

Neither can this Court order that pursuant to Section 435 of the Local Government Code petitioner should be succeeded by the Sangguniang Kabataan member who obtained the next highest number of votes in the May 6, 1996 elections. 48 Section 435 applies when a Sangguniang Kabataan Chairman "refuses to assume office, fails to qualify, 49 is convicted of a felony, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has been absent without leave for more than three (3) consecutive months."

The question of the age qualification is a question of eligibility. 50 Being "eligible" means being "legally qualified; capable of being legally chosen." 51 Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for holding public office. 52 Ineligibility is not one of the grounds enumerated in Section 435 for succession of the SK Chairman.

To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the vacancy be filled by the SK member chosen by the incumbent SK members of Barangay San Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves. The member chosen shall assume the office of SK Chairman for the unexpired portion of the term, and shall discharge the powers and duties, and enjoy the rights and privileges appurtenant to said office.

IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared ineligible for being over the age qualification for candidacy in the May 6, 1996 elections of the Sangguniang

Kabataan, and is ordered to vacate her position as Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Sangguniang Kabataan member voted by simple majority by and from among the incumbent Sangguniang Kabataan members of Barangay San Lorenzo, Bangui, Ilocos Norte shall assume the office of Sangguniang Kabataan Chairman of Barangay San Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term.

SO ORDERED.

G.R. No. 108232 August 23, 1993

ZONSAYDA L. ALINSUG, petitioner, vs. REGIONAL TRIAL COURT, Branch 58, San Carlos City, Negros Occidental, Presided by Hon. Rolindo D. Beldia, Jr.; ROLANDO P. PONSICA as Municipal Mayor of Escalante, Negros Occidental; MUNICIPALITY OF ESCALANTE, NEGROS OCCIDENTAL, and PATRICIO A. ALVAREZ as Municipal Treasurer of Escalante, Negros Occidental, respondents.

R E S O L U T I O N

VITUG, J.:

The petitioner, Zonsayda L. Alinsug, had been a regular employee of the municipal government of Escalante, Negros Occidental, when she received a permanent appointment as Clerk III in the office of the Municipal Planning and Development Coordinator of the same municipality. On 10 June 1992, she received an order from the newly proclaimed mayor, Rolando P. Ponsica, detailing her to the Office of the Mayor. In compliance with the order, she reported to said office the following day.

On 19 June 1992, Zonsayda absented herself from work allegedly to attend to family matters. She had asked permission from the personnel officer but not from the mayor. On 23 June 1992, Mayor Ponsica issued Office Order No. 31, suspending Zonsayda for one month and one day commencing on 24 June 1992 for "a simple misconduct . . . which can also be categorized as an act of insubordination." The order also stated that the suspension "carries with it forfeiture of . . . benefits such as . . . salary and PERA and leave credits during the duration of its effectivity."

Forthwith, Zonsayda filed with the Regional Trial Court of Negros Occidental, in San Carlos City, a petition, dated 07 July 1992, for "injunction with damages and prayer for temporary restraining order and preliminary injunction" against Mayor Ponsica and the municipal treasurer. 1 The petitioner alleged that since her family supported Mayor Ponsica's rival in the 11 May 1992 elections, her suspension was an act of "political vendetta". Further alleging that said respondents' acts were "malicious, illegal, unwarranted, wrongful and condemnable", petitioner prayed for the following reliefs:

WHEREFORE, premises considered, it is respectfully prayed to this Honorable Court —

4.1 That upon the filing of this petition a temporary restraining order be immediately issued directing respondents mayor and municipality to cease and desist from continuing with the suspension, and indefinite detail of petitioner at his office, and, including the respondent

treasurer to refrain from forfeiting and not paying her salary for the period from June 24 to July 23, 1992, and in the meantime to return petitioner to her position as Clerk III in the office of the Municipal Planning and Development Coordinator; to restrain respondents mayor and municipality also from persecuting, oppressing, harassing and humiliating petitioner as civil service employee of the municipality under the respondent mayor, and also restraining them from doing acts and things or employing tactics, schemes or maneuvers that would make it hard or effect a difficulty in petitioner's doing of her works and/or in the performance of the official function of her position entitled to the emoluments thereof, until further orders from the Honorable Court; and after notice and hearing to issue the corresponding writ of preliminary injunction;

4.2 After trial on the merit, to render judgment declaring petitioner's detail at respondent's office per Annex "C" and suspension per Annex "D", null and void, and making the injunction permanent; and

4.3 Adjudging the respondents mayor and municipality solidarily to pay petitioner the amount of P30,000.00 for moral damages; P10,000.00 plus P500.00 per court appearance of petitioner's counsel for attorney's fee, and P3,000.00 for litigation expenses, all in concept of actual and compensatory damages; P20,000.00 as exemplary damages; and to pay the costs of this suit.

Further, petitioner respectfully prays for such other proper reliefs and remedies just and appropriate in the premises. 2

Mayor Ponsica and the municipal treasurer filed an answer to the petition, through private practitioner Samuel SM Lezama, alleging that the petitioner had not exhausted administrative remedies and that her suspension was in accordance with law. They filed a counterclaim for moral damages in the amount of P200,000.00, exemplary damages for P50,000.00, and attorney's fees of P30,000.00, plus appearance fee of P500.00.

The foregoing elicited a motion from the petitioner, praying that the answer be disregarded and expunged from the record, and that the respondents be all declared in default on the ground that since the respondents were sued in their official capacities, "not including their private capacities," they should have been represented by either the municipal legal officer or the provincial legal officer or prosecutor as provided for by Sec. 481 (b) [i] and [3] of the Local Government Code. It also cited Sec. 1 of Rep. Act No. 10 and Art. 177 of the Revised Penal Code which penalizes usurpation of public authority.

The respondents opposed the motion. Manifesting that the municipality of Escalante has no legal officer, they asserted that both the Local Government Code and the Administrative Code of 1987 do not have any provision "relative to the duty of any provincial legal officer or prosecutor to represent a municipality or its officials in suits filed against them by an employee or a private individual." They contended that it was "unnecessary to provide such a provision because there (exist) administrative and judicial rulings sustaining the validity of the employment of a private counsel by municipal officials. Moreover, since the petitioner prayed for the award of moral damages," on the strength of this Court's ruling in Albuera v. Torrens, 3 their hiring of a private counsel was justified.

On 28 August 1992, Assistant Provincial Prosecutor Daniel M. Villaflor entered his appearance as "counsel for Rolando P. Ponsica and Patricio A. Alvarez in their official capacities."

With the filing of said notice at appearance, on 08 September 1992, the lower court issued an Order, denying petitioners motion to declare the respondents in default and motion to expunge from the record respondents' answer.

Acting on the motion for reconsideration filed by the petitioner, the lower court issued the Order of 16 November 1992, denying said motion on the thesis that since the appointment of a legal officer was optional on the part of the municipal government (Art. 481, third paragraph, Local Government Code) and the municipality of Escalante had not, in fact, designated any such legal officer, petitioner's move to declare respondents in default "for having retained a private counsel" was not thereby legally sustainable.

Hence, the instant petition, which although called a "petition for review on certiorari" in its first paragraph, shall be treated as a special civil action of certiorari for purposes of resolving the issues of: (a) whether or not a private counsel may represent municipal officials sued in their official capacities, and (b) whether or not respondents had been in default on account of their having filed their answer through a private counsel.

Sec. 443 (b) of the Local Government Code (Republic Act No. 7160), which took effect on 01 January 1992, 4 provides that, in addition to the officials enumerated in the first paragraph thereof, the mayor may appoint, among other officials enumerated therein, a municipal legal officer. Section 481, Article 11 of Title V of the Code which provides for the appointment of local officials common to all municipalities, cities and provinces, states that "(t)he appointment of a legal officer shall be mandatory for the provincial and city governments and optional for the municipal government." The same section specifies the functions of the legal officer, and one of them being that he shall:

(i) Represent the local government unit in all civil actions and special proceedings wherein the local government unit or any official thereof, in his official capacity, is a party: Provided, that in actions or proceedings where a component city or municipality is a party adverse to the provincial government or to another component city or municipality, a special legal officer may be employed to represent the adverse party;

Indeed, it appears that the law allows a private counsel to be hired by a municipality only when the municipality is an adverse party in a case involving the provincial government or another municipality or city within the province. This provision has its apparent origin in the ruling in De Guia v. The Auditor General 5 where the Court held that the municipality's authority to employ a private attorney is expressly limited only to situations where the provincial fiscal would be disqualified to serve and represent it. With Sec. 1683 of the old Administrative Code 6 as legal basis, the Court therein cited Enriquez, Sr. v. Gimenez 7 which enumerated instances when the provincial fiscal is disqualified to represent in court a particular municipality; if and when original jurisdiction of case involving the municipality is vested in the Supreme Court, when the municipality is a party adverse to the provincial government or to some other municipality in the same province, and when, in a case involving the municipality, he, or his wife, or child, is pecuniarily involved, as heir legatee, creditor or otherwise. 8

Thereafter, in Ramos v. Court of Appeals, 9 the Court ruled that a municipality may not be represented by a private law firm which had volunteered its services gratis, in collaboration with the municipal attorney and the fiscal, as such representation was violative Sec. 1683 of the old Administrative Code. This strict coherence to the letter of the law appears to have been dictated by the fact that "the municipality should not be burdened with expenses of hiring a private lawyer" and that "the interests of the municipality would be best protected if a government lawyer handles its litigations."

But would these proscriptions include public officials? Not necessarily. It can happen that a government official, ostensibly acting in his official capacity and sued in that capacity, is later held to have exceeded his authority. On the one hand, his defense would have then been underwritten by the people's money which ordinarily should have been his personal expense. On the other hand, personal liability can attach to him without, however, his having had the benefit of assistance of a counsel of his own choice. In Correa v. CFI of Bulacan, 10 the Court held that in the discharge of governmental functions, "municipal corporations are responsible for the acts of its officers, except if and when, the only to the extent that, they have acted by authority of the law, and in conformity with the requirements thereof."

In such instance, this Court has sanctioned that representation by private counsel. In one case, We held that where rigid adherence to the law on representation of local officials in court actions could deprive a party of his right to redress for a valid grievance, the hiring of a private counsel would be proper. 11 And, in Albuera v. Torres, 12 this Court also said that a provincial governor sued in his official capacity may engage the services of private counsel when "the complaint contains other allegations and a prayer for moral damages, which, if due from the defendants, must be satisfied by them in their private capacity."

We might also quote the pronouncement of the Court in Urbano v. Chavez: 13

There is likewise another reason . . . why the Office of the Solicitor General cannot represent an accused in a criminal case. Inasmuch as the State can speak and act only by law, whatever it does say and do must be lawful, and that which is unlawful is not the word or deed of the State, but is the mere wrong or trespass of those individual persons who falsely speak and act in its name. Therefore, the accused public official should not expect the State, through the Office of the Solicitor General, to defend him for a wrongful act which cannot be attributed to the State itself. In the same light, a public official who is sued in a criminal case

is actually sued in his personal capacity inasmuch as his principal, the State, can never be the author of a wrongful act, much less commit a crime.

Urbano v. Chavez confronted the issue of whether the Office of the Solicitor General may represent its own Solicitor General in the preliminary investigation of a criminal action, or in a civil action for damages, against him.

The key then to resolving the issue of whether a local government official may secure the services of private counsel, in an action filed against him in his official capacity, lies on the nature of the action and the relief that is sought.

While the petition below was filed against respondents as public officials, its allegations were also aimed at questioning certain acts that can well bring the case beyond the mere confines of official functions; thus —

2.12 These actuations of the respondent mayor in detailing petitioner to his office and eventually suspending her from work, particularly the latter are no doubt respondent mayor's political vendetta of petitioner, a vengeance unleased on her for her children's and family's not going with and voting for him in the May 11, 1992 election and instead supporting the candidacy of their relative-candidate (Mr. Barcelona) in said election, who was his greated (sic) worry at that time.

2.13 The aforesaid acts of respondent mayor are clearly, apparently and obviously a political harassment and persecution, appreasive (sic), acts of vindictiveness, a grave abuse of executive discretion, despotic, unjust, unwarranted, condemnable and actionable; the

indefinite detail order and, especially the suspension, were not done in good faith, not for a valid cause, and done without giving petitioner opportunity to be heard, hence, null and void for being violative of petitioner's legal and constitutional right to due process. . . . . 14

The petition then went on to claim moral and exemplary damages, as well as litigation expenses, as shown by its prayer.

Moral damages cannot generally be awarded unless they are the proximate result of a wrongful act or omission. Exemplary damages, on the other hand, are not awarded if the defendant had not acted in a wanton, oppressive or malevolent manner nor in the absence of gross or reckless negligence. 15 A public official, who in the performance of his duty acts in such fashion, does so in excess of authority, and his actions would be ultra vires 16 that can thereby result in an incurrence of personal liability.

All the foregoing considered, We hold that the respondents were not improperly represented by a private counsel, whose legal fees shall be for their own account.

ACCORDINGLY, the instant petition is hereby DISMISSED. The lower court is directed to proceed with dispatch in the resolution of Special Civil Action No. RTC-371.

SO ORDERED.

G.R. No. 100152 March 31, 2000

ACEBEDO OPTICAL COMPANY, INC., petitioner, vs. THE HONORABLE COURT OF APPEALS, Hon. MAMINDIARA MANGOTARA, in his capacity as Presiding Judge of the RTC, 12th Judicial Region, Br. 1, I l igan City; SAMAHANG OPTOMETRIST Sa PILIPINAS — Il igan City Chapter, LEO T. CAHANAP, City Legal Officer, and Hon. CAMILO P. CABILI, City Mayor of I l igan, respondents.

PURISIMA, J.:

At bar is a petition for review under Rule 45 of the Rules of Court seeking to nullify the dismissal by the Court of Appeals of the original petition for certiorari, prohibition and mandamus filed by the herein petitioner against the City Mayor and City Legal Officer of Iligan and the Samahang Optometrist sa Pilipinas — Iligan Chapter (SOPI, for brevity).

The antecedent facts leading to the filing of the instant petition are as follows:

Petitioner applied with the Office of the City Mayor of Iligan for a business permit. After consideration of petitioner's application and the opposition interposed thereto by local optometrists, respondent City Mayor issued Business Permit No. 5342 subject to the following conditions:

1. Since it is a corporation, Acebedo cannot put up an optical clinic but only a commercial store;

2. Acebedo cannot examine and/or prescribe reading and similar optical glasses for patients, because these are functions of optical clinics;

3. Acebedo cannot sell reading and similar eyeglasses without a prescription having first been made by an independent optometrist (not its employee) or independent optical clinic. Acebedo can only sell directly to the public, without need of a prescription, Ray-Ban and similar eyeglasses;

4. Acebedo cannot advertise optical lenses and eyeglasses, but can advertise Ray-Ban and similar glasses and frames;

5. Acebedo is allowed to grind lenses but only upon the prescription of an independent optometrist. 1

On December 5, 1988, private respondent Samahan ng Optometrist Sa Pilipinas (SOPI), Iligan Chapter, through its Acting President, Dr. Frances B. Apostol, lodged a complaint against the petitioner before the Office of the City Mayor, alleging that Acebedo had violated the conditions set forth in its business permit and requesting the cancellation and/or revocation of such permit.

Acting on such complaint, then City Mayor Camilo P. Cabili designated City Legal Officer Leo T. Cahanap to conduct an investigation on the matter. On July 12, 1989, respondent City Legal Officer

submitted a report to the City Mayor finding the herein petitioner guilty of violating all the conditions of its business permit and recommending the disqualification of petitioner from operating its business in Iligan City. The report further advised that no new permit shall be granted to petitioner for the year 1989 and should only be given time to wind up its affairs.

On July 19, 1989, the City Mayor sent petitioner a Notice of Resolution and Cancellation of Business Permit effective as of said date and giving petitioner three (3) months to wind up its affairs.

On October 17, 1989, petitioner brought a petition for certiorari, prohibition and mandamus with prayer for restraining order/preliminary injunction against the respondents, City Mayor, City Legal Officer and Samahan ng Optometrists sa Pilipinas-Iligan City Chapter (SOPI), docketed as Civil Case No. 1497 before the Regional Trial Court of Iligan City, Branch I. Petitioner alleged that (1) it was denied due process because it was not given an opportunity to present its evidence during the investigation conducted by the City Legal Officer; (2) it was denied equal protection of the laws as the limitations imposed on its business permit were not imposed on similar businesses in Iligan City; (3) the City Mayor had no authority to impose the special conditions on its business permit; and (4) the City Legal Officer had no authority to conduct the investigation as the matter falls within the exclusive jurisdiction of the Professional Regulation Commission and the Board of Optometry.

Respondent SOPI interposed a Motion to Dismiss the Petition on the ground of non-exhaustion of administrative remedies but on November 24, 1989, Presiding Judge Mamindiara P. Mangotara deferred resolution of such Motion to Dismiss until after trial of the case on the merits. However, the prayer for a writ of preliminary injunction was granted. Thereafter, respondent SOPI filed its answer.1âwphi1.nêt

On May 30, 1990, the trial court dismissed the petition for failure to exhaust administrative remedies, and dissolved the writ of preliminary injunction it earlier issued. Petitioner's motion for reconsideration met the same fate. It was denied by an Order dated June 28, 1990.

On October 3, 1990, instead of taking an appeal, petitioner filed a petition for certiorari, prohibition and mandamus with the Court of Appeals seeking to set aside the questioned Order of Dismissal, branding the same as tainted with grave abuse of discretion on the part of the trial court.

On January 24, 1991, the Ninth Division 2 of the Court of Appeals dismissed the petition for lack of merit. Petitioner's motion reconsideration was also denied in the Resolution dated May 15, 1991.

Undaunted, petitioner has come before this court via the present petition, theorizing that:

A.

THE RESPONDENT COURT, WHILE CORRECTLY HOLDING THAT THE RESPONDENT CITY MAYOR ACTED BEYOND HIS AUTHORITY IN IMPOSING THE SPECIAL CONDITIONS IN THE PERMIT AS THEY HAD NO BASIS IN ANY LAW OR ORDINANCE, ERRED IN HOLDING THAT THE SAID SPECIAL CONDITIONS NEVERTHELESS BECAME BINDING ON PETITIONER UPON ITS ACCEPTANCE THEREOF AS A PRIVATE AGREEMENT OR CONTRACT.

B.

THE RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT THE CONTRACT BETWEEN PETITIONER AND THE CITY OF ILIGAN WAS ENTERED INTO BY THE LATTER IN THE PERFORMANCE OF ITS PROPRIETARY FUNCTIONS.

The petition is impressed with merit.

Although petitioner agrees with the finding of the Court of Appeals that respondent City Mayor acted beyond the scope of his authority in imposing the assailed conditions in subject business permit, it has excepted to the ruling of the Court of Appeals that the said conditions nonetheless became binding on petitioner, once accepted, as a private agreement or contract. Petitioner maintains that the said special conditions are null and void for being ultra vires and cannot be given effect; and therefore, the principle of estoppel cannot apply against it.

On the other hand, the public respondents, City Mayor and City Legal Officer, private respondent SOPI and the Office of the Solicitor General contend that as a valid exercise of police power, respondent City Mayor has the authority to impose, as he did, special conditions in the grant of business permits.

Police power as an inherent attribute of sovereignty is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people. 9 The State, through the legislature, has delegated the exercise of police power to local government units, as agencies of the State, in order to effectively accomplish and carry out the declared objects of their creation. 4 This delegation of police power is embodied in the general welfare clause of the Local Government Code which provides:

Sec. 6. 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.

The scope of police power has been held to be so comprehensive as to encompass almost all matters affecting the health, safety, peace, order, morals, comfort and convenience of the community. Police power is essentially regulatory in nature and the power to issue licenses or grant business permits, if exercised for a regulatory and not revenue-raising purpose, is within the ambit of this power. 5

The authority of city mayors to issue or grant licenses and business permits is beyond cavil. It is provided for by law. Section 171, paragraph 2 (n) of Batas Pambansa Bilang 337 otherwise known as the Local Government Code of 1983, reads:

Sec. 171. The City Mayor shall:

x x x x x x x x x

n) Grant or refuse to grant, pursuant to law, city licenses or permits, and revoke the same for violation of law or ordinance or the conditions upon which they are granted.

However, the power to grant or issue licenses or business permits must always be exercised in accordance with law, with utmost observance of the rights of all concerned to due process and equal protection of the law.

Succinct and in point is the ruling of this Court, that:

. . . While a business may be regulated, such regulation must, however, be within the bounds of reason, i.e., the regulatory ordinance must be reasonable, and its provision 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. . . .

x x x x x x x x x

. . . 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. 6

In the case under consideration, the business permit granted by respondent City Mayor to petitioner was burdened with several conditions. Petitioner agrees with the holding by the Court of Appeals that respondent City Mayor acted beyond his authority in imposing such special conditions in its permit as the same have no basis in the law or ordinance. Public respondents and private respondent SOPI, on the other hand, are one in saying that the imposition of said special conditions on petitioner's business permit is well within the authority of the City Mayor as a valid exercise of police power.

As aptly discussed by the Solicitor General in his Comment, the power to issue licenses and permits necessarily includes the corollary power to revoke, withdraw or cancel the same. And the power to revoke or cancel, likewise includes the power to restrict through the imposition of certain conditions. In the case of Austin-Hardware, Inc. vs. Court of Appeals, 7 it was held that the power to license carries with

it the authority to provide reasonable terms and conditions under which the licensed business shall be conducted. As the Solicitor General puts it:

If the City Mayor is empowered to grant or refuse to grant a license, which is a broader power, it stands to reason that he can also exercise a lesser power that is reasonably incidental to his express power, i.e. to restrict a license through the imposition of certain conditions, especially so that there is no positive prohibition to the exercise of such prerogative by the City Mayor, nor is there any particular official or body vested with such authority. 8

However, the present inquiry does not stop there, as the Solicitor General believes. The power or authority of the City Mayor to impose conditions or restrictions in the business permit is indisputable. What petitioner assails are the conditions imposed in its particular case which, it complains, amount to a confiscation of the business in which petitioner is engaged.

Distinction must be made between the grant of a license or permit to do business and the issuance of a license to engage in the practice of a particular profession. The first is usually granted by the local authorities and the second is issued by the Board or Commission tasked to regulate the particular profession. A business permit authorizes the person, natural or otherwise, to engage in business or some form of commercial activity. A professional license, on the other hand, is the grant of authority to a natural person to engage in the practice or exercise of his or her profession.

In the case at bar, what is sought by petitioner from respondent City Mayor is a permit to engage in the business of running an optical shop. It does not purport to seek a license to engage in the practice of optometry as a corporate body or entity, although it does have in its employ, persons who are duly licensed to practice optometry by the Board of Examiners in Optometry.

The case of Samahan ng Optometrists sa Pilipinas vs. Acebedo International Corporation, G.R. No. 117097, 9 promulgated by this Court on March 21, 1997, is in point. The factual antecedents of that case are similar to those of the case under consideration and the issue ultimately resolved therein is exactly the same issue posed for resolution by this Court en banc.

In the said case, the Acebedo International Corporation filed with the Office of the Municipal Mayor an application for a business permit for the operation of a branch of Acebedo Optical in Candon, Ilocos Sur. The application was opposed by the Samahan ng Optometrists sa Pilipinas-Ilocos Sur Chapter, theorizing that Acebedo is a juridical entity not qualified to practice optometry. A committee was created by the Office of the Mayor to study private respondent's application. Upon recommendation of the said committee, Acebedo's application for a business permit was denied. Acebedo filed a petition with the Regional Trial Court but the same was dismissed. On appeal, however, the Court of Appeals reversed the trial court's disposition, prompting the Samahan ng Optometrists to elevate the matter to this Court.

The First Division of this Court, then composed of Honorable Justice Teodoro Padilla, Josue Bellosillo, Jose Vitug and Santiago Kapunan, with Honorable Justice Regino Hermosisima, Jr. as ponente, denied the petition and ruled in favor of respondent Acebedo International Corporation, holding that "the fact that private respondent hires optometrists who practice their profession in the course of their employment in private respondent's optical shops, does not translate into a practice of optometry by private respondent itself," 10 The Court further elucidated that in both the old and new Optometry Law, R.A. No. 1998, superseded by R.A. No. 8050, it is significant to note that there is no prohibition against the hiring by corporations of optometrists. The Court concluded thus:

All told, there is no law that prohibits the hiring by corporations of optometrists or considers the hiring by corporations of optometrists as a practice by the corporation itself of the profession of optometry.

In the present case, the objective of the imposition of subject conditions on petitioner's business permit could be attained by requiring the optometrists in petitioner's employ to produce a valid certificate of registration as optometrist, from the Board of Examiners in Optometry. A business permit is issued primarily to regulate the conduct of business and the City Mayor cannot, through the issuance of such permit, regulate the practice of a profession, like that of optometry. Such a function is within the exclusive domain of the administrative agency specifically empowered by law to supervise the profession, in this case the Professional Regulations Commission and the Board of Examiners in Optometry.

It is significant to note that during the deliberations of the bicameral conference committee of the Senate and the House of Representatives on R.A. 8050 (Senate Bill No. 1998 and House Bill No. 14100), the committee failed to reach a consensus as to the prohibition on indirect practice of optometry by corporations. The proponent of the bill, former Senator Freddie Webb, admitted thus:

Senator Webb: xxx xxx xxx

The focus of contention remains to be the proposal of prohibiting the indirect practice of optometry by corporations.1âwphi1 We took a second look and even a third look at the issue in the bicameral conference, but a compromise remained elusive. 11

Former Senator Leticia Ramos-Shahani likewise voted her reservation in casting her vote:

Senator Shahani: Mr. President.

The optometry bills have evoked controversial views from the members of the panel. While we realize the need to uplift the standards of optometry as a profession, the consesnsus of both Houses was to avoid touching sensitive issues which properly belong to judicial determination. Thus, the bicameral conference committee decided to leave the issue of indirect practice of optometry and the use of trade names open to the wisdom of the Courts which are vested with the prerogative of interpreting the laws. 12

From the foregoing, it is thus evident that Congress has not adopted a unanimous position on the matter of prohibition of indirect practice of optometry by corporations, specifically on the hiring and employment of licensed optometrists by optical corporations. It is clear that Congress left the resolution of such issue for judicial determination, and it is therefore proper for this Court to resolve the issue.

Even in the United States, jurisprudence varies and there is a conflict of opinions among the federal courts as to the right of a corporation or individual not himself licensed, to hire and employ licensed optometrists. 13

Courts have distinguished between optometry as a learned profession in the category of law and medicine, and optometry as a mechanical art. And, insofar as the courts regard optometry as merely a mechanical art, they have tended to find nothing objectionable in the making and selling of eyeglasses, spectacles and lenses by corporations so long as the patient is actually examined and prescribed for by a qualified practitioner. 14

The primary purpose of the statute regulating the practice of optometry is to insure that optometrical services are to be rendered by competent and licensed persons in order to protect the health and physical welfare of the people from the dangers engendered by unlicensed practice. Such purpose may be fully accomplished although the person rendering the service is employed by a corporation. 15

Furthermore, it was ruled that the employment of a qualified optometrist by a corporation is not against public policy. 16 Unless prohibited by statutes, a corporation has all the contractual rights that an individual has 17 and it does not become the practice of medicine or optometry because of the presence of a physician or optometrist. 18 The manufacturing, selling, trading and bartering of eyeglasses and spectacles as articles of merchandise do not constitute the practice of optometry. 19

In the case of Dvorine vs. Castelberg Jewelry Corporation, 20 defendant corporation conducted as part of its business, a department for the sale of eyeglasses and the furnishing of optometrical services to its clients. It employed a registered optometrist who was compensated at a regular salary and commission and who was furnished instruments and appliances needed for the work, as well as an office. In holding that corporation was not engaged in the practice of optometry, the court ruled that there is no public policy forbidding the commercialization of optometry, as in law and medicine, and recognized the general practice of making it a commercial business by advertising and selling eyeglasses.

To accomplish the objective of the regulation, a state may provide by statute that corporations cannot sell eyeglasses, spectacles, and lenses unless a duly licensed physician or a duly qualified optometrist is in charge of, and in personal attendance at the place where such articles are sold. 21 In such a case, the patient's primary and essential safeguard lies in the optometrist's control of the "treatment" by means of prescription and preliminary and final examination. 22

In analogy, it is noteworthy that private hospitals are maintained by corporations incorporated for the purpose of furnishing medical and surgical treatment. In the course of providing such treatments, these corporations employ physicians, surgeons and medical practitioners, in the same way that in the course of manufacturing and selling eyeglasses, eye frames and optical lenses, optical shops hire licensed optometrists to examine, prescribe and dispense ophthalmic lenses. No one has ever charged that these corporations are engaged in the practice of medicine. There is indeed no valid basis for treating corporations engaged in the business of running optical shops differently.

It also bears stressing, as petitioner has pointed out, that the public and private respondents did not appeal from the ruling of the Court of Appeals. Consequently, the holding by the Court of Appeals that the act of respondent City Mayor in imposing the questioned special conditions on petitioner's business permit is ultra vires cannot be put into issue here by the respondents. It is well-settled that:

A party who has not appealed from the decision may not obtain any affirmative relief from the appellate court other than what he had obtain from the lower court, if any, whose decision is brought up on appeal. 23

. . . an appellee who is not an appellant may assign errors in his brief where his purpose is to maintain the judgment on other grounds, but he cannot seek modification or reversal of the judgment or affirmative relief unless he has also appealed. 24

Thus, respondents' submission that the imposition of subject special conditions on petitioner's business permit is not ultra vires cannot prevail over the finding and ruling by the Court of Appeals from which they (respondents) did not appeal.

Anent the second assigned error, petitioner maintains that its business permit issued by the City Mayor is not a contract entered into by Iligan City in the exercise of its proprietary functions, such that although petitioner agreed to such conditions, it cannot be held in estoppel since ultra vires acts cannot be given effect.

Respondents, on the other hand, agree with the ruling of the Court of Appeals that the business permit in question is in the nature of a contract between Iligan City and the herein petitioner, the terms and conditions of which are binding upon agreement, and that petitioner is estopped from questioning the same. Moreover, in the Resolution denying petitioner's motion for reconsideration, the Court of Appeals held that the contract between the petitioner and the City of Iligan was entered into by the latter in the performance of its proprietary functions.

This Court holds otherwise. It had occasion to rule that a license or permit is not in the nature of a contract but a special privilege.

. . . a license or a permit is not a contract between the sovereignty and the licensee or permitee, and is not a property in the constitutional sense, as to which the constitutional proscription against impairment of the obligation of contracts may extend. A license is rather in the nature of a special privilege, of a permission or authority to do what is within its terms. It is not in any way vested, permanent or absolute. 25

It is therefore decisively clear that estoppel cannot apply in this case. The fact that petitioner acquiesced in the special conditions imposed by the City Mayor in subject business permit does not preclude it from challenging the said imposition, which is ultra vires or beyond the ambit of authority of respondent City Mayor. Ultra vires acts or acts which are clearly beyond the scope of one's authority are null and

void and cannot be given any effect. The doctrine of estoppel cannot operate to give effect to an act which is otherwise null and void or ultra vires.

The Court of Appeals erred in adjudging subject business permit as having been issued by responded City Mayor in the performance of proprietary functions of Iligan City. As hereinabove elaborated upon, the issuance of business licenses and permits by a municipality or city is essentially regulatory in nature. The authority, which devolved upon local government units to issue or grant such licenses or permits, is essentially in the exercise of the police power of the State within the contemplation of the general welfare clause of the Local Government Code.

WHEREFORE, the petition is GRANTED; the Decision of the Court of Appeals in CA-GR SP No. 22995 REVERSED: and the respondent City Mayor is hereby ordered to reissue petitioner's business permit in accordance with law and with this disposition. No pronouncement as to costs.

SO ORDERED.

G.R. No. 182069 July 03, 2012

ARNOLD D. VICENCIO, Petitioner vs. HON. REYNALDO A. VILLAR and HON. JUANITO G. ESPINO, JR., in their capacity as Acting Chairman and Commissioner, respectively, of the Hon. Commission on Audit, and ELIZABETH ZOSA, Respondents.

D E C I S I O N

SERENO, J.:

This is a Pctitiur; for Certiorari under Rule 64, in relation to Rule 65 of the Rules or Court, secking to annul Decision No. 2008-022 dated 15 February 2008 of the Commission on Audit (COA). 1

On 30 October 2003, the City Council or the Sangguniang Panglungsod ng Malabon (SPM), presided over by Hon. Benjamin Galauran, then acting Vice-Mayor, adopted and approved City Ordinance No. 15-2003, entitled "An Ordinance Granting Authority to the City Vice-Mayor, Hon. Jay Jay Yambao, to Negotiate and Enter into Contract for Consultancy Services for Consultants in the Sanggunian Secretariat Tasked to Function in their Respective Areas of Concern x x x."2

On 9 December 2003 and 1 March 2004, the City of Malabon, represented by Hon. Galauran, entered into separate Contracts for Consultancy Services with Ms. Jannette O. Vijiga,3 Mr. Meynardo E. Virtucio4 and Mr. Hernando D. Dabalus (2003 Consultancy Contracts).5

Subsequently, during the May 2004 elections, petitioner was elected City Vice-Mayor of Malabon. By virtue of this office, he also became the Presiding Officer of the SPM and, at the same time, the head of the Sanggunian Secretariat.

To complement the manpower requirements of the existing Sanggunian Secretariat, petitioner deemed it necessary to hire the services of consultants with the end view of augmenting and upgrading its performance capability for the effective operation of the legislative machinery of the city.

Petitioner thus wrote a letter dated 19 July 2004 to Atty. Danilo T. Diaz , the City Legal Officer of Malabon, inquiring as to whether it was still necessary for the SPM to ratify a newly entered contract of consultancy services between it and the candidate for the consultancy position. The letter states in part:

This is an inquiry regarding the hiring of consultants by virtue of an ordinance giving authority to the City Vice Mayor to enter into consultancy services (Ordinance no. 15-2003).

As you very well know, the services of the consultants hired by the former administration, particularly by the Sangguniang Panglungsod, ended last June 30, 2004. Hence, we are confronted by this inquiry: Would there still be a need for the Sangguniang Panglungsod to ratify a newly entered contract of consultancy services between the SP and the candidate for said consultancy position? Kindly render your humble opinion on the matter.6

Atty. Diaz then responded to the said inquiry through a letter dated 26 July 2004, which categorically stated that ratification was no longer necessary, provided that the services to be contracted were those stipulated in the ordinance. The letter states thus:

In response to your query contained in your letter dated July 19, 2004, regarding the hiring of consultants for the Sanggunian Secretariat by virtue of Ordinance No. 15-2003, giving authority to the City Vice Mayor to enter into consultancy services and whether there is still a need for ratification of said consultancy contract by the Sanggunian, the answer is, such a ratification is no longer necessary provided that the contract of consultancy services to be executed is precisely the services stipulated in said ordinance. In essence, the Ordinance no. 15-2003 already stated what consultancy services should be secured and hence, if the contract for consultancy services to be executed is precisely those as provided in said ordinance, ratification is a mere suplasage.7

On 21 January 2005, the SPM adopted City Ordinance No. 01-2005 entitled "An Ordinance Appropriating Funds to Cover the Various Expenditures and Activities of the Local Government of

Malabon City for the Period from January 01, 2005 to December 31, 2005." The total amount of funds appropriated was P 511,070,019 for the spending of the entire city government. Out of this amount, P 792,000 was earmarked for consultancy services under the Legislative Secretariat.

On 1 February 2005, petitioner, representing the City Government of Malabon City, entered into Contracts for Consultancy Services with Ms. Jennifer S. Catindig8 and Atty. Rodolfo C. delos Santos (2005 Consultancy Contracts).9 On 11 February 2005, another Contract for Consultancy Services was entered into between Mr. Marvin T. Amiana10 and the city government.

After the signing of their respective contracts, the three consultants rendered consultancy services to the SPM. Thereafter, they were correspondingly paid for their services pursuant to the contracts therefor.

On 19 December 2005, Audit Observation Memorandum (AOM) No. 2005-12-01911 was issued by Ms. Atenie F. Padilla, Supervising Auditor of the City Auditor’s Office, Malabon City, disallowing the amount of three hundred eighty-four thousand nine hundred eighty pesos (P384,980) for being an improper disbursement. The AOM disclosed the following pertinent findings:

• City Ordinance No. 15-2003 dated October 30, 2003 was used as basis of authority in hiring consultants. Analysis of the said City Ordinance revealed that it specifically authorized the former Vice-Mayor, Hon. Mark Allan Jay G. Yambao to enter into a contract for consultancy services in the Sangguniang Secretariat covering the period June to December 2003 only. Said ordinance does not give authority to the incumbent City Vice-Mayor Arnold D. Vicencio to hire consultants for CY 2005.

• Progress accomplishment report for the month, to determine the services rendered were not attached to the disbursement vouchers.

• No information as to what method had been made by BAC in the hiring of individual consultants whether through the selection from several registered professionals who offered consulting services or through direct hiring without the intervention of the BAC.

• Copies of the approved contracts together with supporting documents were not submitted to the City Auditor’s Office within five (5) days from execution of the contract for review and evaluation contrary to COA Circular No. 76-34 dated July 15, 1976, thus the City Auditor’s Office was precluded to conduct timely review/evaluation to inform management of whatever deficiencies noted so that immediate remedial measures could be properly taken.12

On 12 May 2006, respondent Elizabeth S. Zosa issued Notice of Disallowance (ND) No. 06-009-101 (05)13 containing the result of the evaluation conducted on the AOM issued by Ms. Padilla. The persons held liable for the disallowed amount relative to the hiring of the three consultants were the following: (1) petitioner, in his capacity as City Vice-Mayor, for certifying that the expenses/cash advances were necessary, lawful and incurred under his direct supervision and for approving the transaction; (2) Mr. Eustaquio M. Angeles, in his capacity as Officer-in-Charge, City Accountant, for certifying to the completeness and propriety of the supporting documents of the expenditures; and (3) Ms. Catindig, Atty. Delos Santos, and Mr. Amiana, as payees. The above-named persons were further directed to settle the said disallowance immediately. Pursuant to Sections 48, 50 and 51 of Presidential Decree No. (P.D.) 1445, the parties found liable had a period of six months within which to file an appeal. The disallowance was anchored on the following findings:

- There was no authority for the incumbent City Vice-Mayor Arnold D. Vicencio to hire consultants for CY 2005. City Ordinance No. 15-2003 dated October 30, 2003 which was used as basis of authority to hire consultants specifically authorized the former Vice-Mayor, Hon. Mark Allan Jay G. Yambao to enter into a contract for consultancy services in the Sangguniang Secretariat covering the period June to December 2003 only.

- There were no Progress Accomplishment Reports for the month, to determine the services rendered.

- No information as to what method had been made by BAC in the hiring of individual consultants whether through the selection from several registered professionals who offered consulting services or through direct hiring without the intervention of the BAC.14

On 22 June 2006, the SPM wrote a letter15 informing Ms. Padilla that the three consultants hired by petitioner rendered services covering the period January to December 2005. In its view, the hiring of these consultants and the services they rendered were in good faith.

Aggrieved by the disallowance, petitioner appealed it to the Adjudication and Settlement Board (ASB) of the COA. On 12 June 2007, the ASB issued Decision No. 2007-030,16 the dispositive portion of which reads as follows:

Premises considered, the instant appeal of Hon. Arnold Vicencio is hereby denied. Accordingly, Notice of Disallowance No. 06-009-101 (05) dated 12 May 2006 involving the amount of P384,980.00 representing fees to consultants Mr. Marvin T. Amiana, Atty. Rodolfo Delos Santos and Ms. Jennifer Catindig, is hereby affirmed. However, the instant appeal of

Mr. Estaquio Angeles is hereby granted. Mr. Angeles is therefore excluded from the persons liable listed under Notice of Disallowance No. 06-009-101 (05).17

Thereafter, herein petitioner filed a letter dated 7 July 2007,18 addressed to Hon. Guillermo N. Carague, COA Chairperson. The letter prayed for the reversal and setting aside of the earlier Decision of the ASB. On 15 February 2008, public respondent issued the assailed Order. It appears that the letter of petitioner was treated as an appeal to the Commission Proper of the COA and was subsequently denied. The dispositive portion states:

WHEREFORE, premises considered, the instant motion for reconsideration, which was treated as an appeal, is denied.19

On 28 March 2008, the instant Petition was filed, raising the following issue:

WHETHER OR NOT PUBLIC RESPONDENT COMMISSION ON AUDIT COMMITTED SERIOUS ERRORS AND GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS OFJURISDICTION WHEN IT AFFIRMED ASB DECISION NO. 2007-030, RELATIVE TO THE DISALLOWANCE OF DISBURSEMENTS CONCERNING THE SERVICES RENDERED BY HIRED CONSULTANTS FOR THE SANGGUNIANG PANLUNGSOD NG MALABON.

On 8 April 2008, this Court directed respondents to comment on the Petition. On 28 July 2008, they filed their Comment, in which they averred that Ordinance No. 15-2003 specifically authorized the expenditure of funds for the compensation of consultants only from June to December 2003. Thus, the contracts for consultancy entered into in 2005 were contrary to the ordinance cited and were therefore void for being unauthorized and bereft of any legal basis. There is also no room for interpretation of the

ordinance, as the same is clear, and, additionally, actually contains no preamble. Further, respondents argue that to allow the disbursement of public funds to pay for the services of the consultants, despite the absence of authority for the same, would allow a circumvention of the applicable COA rules and circulars.

Petitioner thereafter filed his Reply to the Comment, in compliance with this Court’s 12 August 2008 Resolution. In his Reply, he contended that he had the authority to enter into the consultancy contracts pursuant to Ordinance No. 15-2003. As the ordinance was ambiguous, there was a need to interpret its provisions by looking into the intent of the law. He also manifested that the Ombusdman had dismissed the administrative and criminal Complaints for violation of Republic Act No. (R.A.) 6713 and for Usurpation of Authority, previously filed against him over the same transactions. The Ombudsman held that, while Ordinance No. 15-2003 specifically mentions then Vice-Mayor Yambao, the intent in passing the law may not be ignored. It was the intention of the city council to authorize the Office of the Vice-Mayor to enter into consultancy contracts, and not Vice-Mayor Yambao only. Petitioner also argued that the ends of substantial justice and equity would be better served by allowing the disbursement for consultancy services that have already been rendered.

We deny the Petition.

At the outset, we note that the Petition has a procedural flaw that should merit its outright dismissal. Through the Verification and Certification attached to the instant Petition, petitioner states that the contents of the Petition "are true and correct of [his] own personal knowledge and belief and based on authentic records and/or documents."20

Section 4, Rule 7 of the Rules of Court provides that a pleading required to be verified which contains a verification based on "information and belief" or "knowledge, information and belief," shall be treated as an unsigned pleading. A pleading, therefore, in which the verification is based merely on the party’s knowledge and belief – as in the instant Petition – produces no legal effect, subject to the discretion of the court to allow the deficiency to be remedied.21

In any case, we find no grave abuse of discretion on the part of the COA in issuing the assailed Decision.

Petitioner contends that the ordinance authorizes the Office of the Vice-Mayor, and not Vice-Mayor Yambao in particular, to enter into consultancy contracts. Notably, it was even Hon. Vice-Mayor Benjamin C. Galauran, who was acting Vice-Mayor at the time, who entered into the 2003 Consultancy Contracts. Petitioner also argues that there is no indication from the preamble of the ordinance, which can be read from the minutes of the SPM meeting, that the ordinance was specifically designed to empower only Vice-Mayor Yambao, or to limit such power to hire for the period June to December 2003 only.

We disagree.

Under Section 456 of R.A. 7160, or the Local Government Code, the following are the powers and duties of a city vice-mayor:

ARTICLE II The City Vice-Mayor

SECTION 456. Powers, Duties and Compensation. – (a) The city vice-mayor shall:

(1) Be the presiding officer of the sangguniang panlungsod and sign all warrants drawn on the city treasury for all expenditures appropriated for the operation of the sangguniang panlungsod;

(2) Subject to civil service law, rules and regulations, appoint all officials and employees of the sangguniang panlungsod, except those whose manner of appointment is specifically provided in this Code;

(3) Assume the office of the city mayor for the unexpired term of the latter in the event of permanent vacancy as provided for in Section 44, Book I of this Code;

(4) Exercise the powers and perform the duties and functions of the city mayor in cases of temporary vacancy as provided for in Section 46, Book I of this Code; and

(5) Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance.

(b) The city vice-mayor shall receive a monthly compensation corresponding to Salary Grade twenty-eight (28) for a highly urbanized city and Salary Grade twenty-six (26) for a component city, as prescribed under R.A. No. 6758 and the implementing guidelines issued pursuant thereto.

Under this provision, therefore, there is no inherent authority on the part of the city vice-mayor to enter into contracts on behalf of the local government unit, unlike that provided for the city mayor.22 Thus, the authority of the vice-mayor to enter into contracts on behalf of the city was strictly circumscribed by the ordinance granting it. Ordinance No. 15-2003 specifically authorized Vice-Mayor Yambao to enter into

contracts for consultancy services. As this is not a power or duty given under the law to the Office of the Vice-Mayor, Ordinance No. 15-2003 cannot be construed as a "continuing authority" for any person who enters the Office of the Vice-Mayor to enter into subsequent, albeit similar, contracts.

Ordinance No. 15-2003 provides in full:

City Ordinance No. 15-2003

An Ordinance Granting Authority to the City Vice Mayor, Hon. Jay Jay G. Yambao, to Negotiate, and Enter into a Contract for Consultancy Services in the Sanggunian Secretariat Tasked to Function in their Respective Areas of Concern, as Aforementioned, To Wit:

(1) A Legal Consultant

(2) A Consultant on Education Affairs and

(3) A Management Consultant

That said consultants shall be paid/compensated at the rate of Twenty Two Thousand Pesos (P22,000.00) each, per month, effective upon approval of this ordinance subject to the usual accounting and auditing procedures, rules and/or regulations;

That the source of funds for appropriations thereof shall be made available for expenditures to be earmarked for payment/compensation for said consultants, covering the period from June to December of 2003, thereby authorizing further the City Vice Mayor to effect the necessary funding thereof, pursuant to the pertinent provision, aforecited, in Chapter 4, Section 336 of R.A. 7160;

That copies of this ordinance be furnished all concerned for their information and guidance.

Adopted: October 30, 2003.23

Ordinance No. 15-2003 is clear and precise and leaves no room for interpretation.1âwphi1 It only authorized the then City Vice-Mayor to enter into consultancy contracts in the specific areas of concern. Further, the appropriations for this particular item were limited to the savings for the period June to December 2003. This was an additional limitation to the power granted to Vice-Mayor Yambao to contract on behalf of the city. The fact that any later consultancy contract would necessarily require further appropriations from the city council strengthens the contention that the power granted under Ordinance No. 15-2003 was limited in scope. Hence, petitioner was without authority to enter into the 2005 Consultancy Contracts.

Where the words of a statute are clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation.24 Thus, the ordinance should be applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would lead to an injustice.25 In the instant case, there is no reason to depat1 from this rule, since the subject ordinance is not at all impossible, absurd, or unjust.

Section 103 of P.O. 1445 declares that expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor. The public official's personal liability arises only if the expenditure of government funds was made in violation of law. In this case, petitioner's act of entering into a contract on behalf of the local government unit without the requisite authority therefor was in violation of the

Local Government Code. While petitioner may have relied on the opinion of the City Legal Officer, such reliance only serves to buttress his good faith. It does not, however, exculpate him from his personal liability under P.D. 1445.

In sum, the COA's assailed Decision was made in faithful compliance with its mandate and in judicious exercise of its general audit power as conferred on it by the Constitution26

The COA was merely fulfilling its mandate in observing the policy that government funds and property should be fully protected and conserved; and that irregular, unnecessary, excessive or extravagant expenditures or uses of such funds and property should be prevented.27 Thus, no grave abuse of discretion may be imputed to the COA.

WHEREFORE, the Commission on Audit Decision dated 4 January 2008 is hereby AFFIRMED.

SO ORDERED.

G.R. No. 196870 June 26, 2012

BORACAY FOUNDATION, INC., Petitioner, vs. THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE PHILIPPINE RECLAMATION AUTHORITY, AND THE DENR-EMB (REGION VI), Respondents.

D E C I S I O N

LEONARDO-DE CASTRO, J.:

In resolving this controversy, the Court took into consideration that all the parties involved share common goals in pursuit of certain primordial State policies and principles that are enshrined in the Constitution and pertinent laws, such as the protection of the environment, the empowerment of the local government units, the promotion of tourism, and the encouragement of the participation of the private sector. The Court seeks to reconcile the respective roles, duties and responsibilities of the petitioner and respondents in achieving these shared goals within the context of our Constitution, laws and regulations.

Nature of the Case

This is an original petition for the issuance of an Environmental Protection Order in the nature of a continuing mandamus under A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental Cases, promulgated on April 29, 2010.

The Parties

Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic corporation. Its primary purpose is "to foster a united, concerted and environment-conscious development of Boracay Island, thereby preserving and maintaining its culture, natural beauty and ecological balance, marking the island as the crown jewel of Philippine tourism, a prime tourist destination in Asia and the whole world."1 It counts among its members at least sixty (60) owners and representatives of resorts, hotels, restaurants, and similar institutions; at least five community organizations; and several environmentally-conscious residents and advocates.2

Respondent Province of Aklan (respondent Province) is a political subdivision of the government created pursuant to Republic Act No. 1414, represented by Honorable Carlito S. Marquez, the Provincial Governor (Governor Marquez).

Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public Estates Authority (PEA), is a government entity created by Presidential Decree No. 1084,3 which states that one of the purposes for which respondent PRA was created was to reclaim land, including foreshore and submerged areas. PEA eventually became the lead agency primarily responsible for all reclamation projects in the country under Executive Order No. 525, series of 1979. In June 2006, the President of the Philippines issued Executive Order No. 543, delegating the power "to approve reclamation projects to PRA through its governing Board, subject to compliance with existing laws and rules and further subject to the condition that reclamation contracts to be executed with any person or entity (must) go through public bidding."4

Respondent Department of Environment and Natural Resources – Environmental Management Bureau (DENR-EMB), Regional Office VI (respondent DENR-EMB RVI), is the government agency in the Western Visayas Region authorized to issue environmental compliance certificates regarding projects that require the environment’s protection and management in the region.5

Summary of Antecedent Facts

Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the Philippines and one of the country’s most popular tourist destinations, was declared a tourist zone and marine reserve in 1973 under Presidential Proclamation No. 1801.6 The island comprises the barangays of Manoc-manoc, Balabag, and Yapak, all within the municipality of Malay, in the province of Aklan.7

Petitioner describes Boracay as follows:

Boracay is well-known for its distinctive powdery white-sand beaches which are the product of the unique ecosystem dynamics of the area. The island itself is known to come from the uplifted remnants of an ancient reef platform. Its beaches, the sandy land strip between the water and the area currently occupied by numerous establishments, is the primary draw for domestic and international tourists for its color, texture and other unique characteristics. Needless to state, it is the premier domestic and international tourist destination in the Philippines.8

More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger Terminal at Barangay Caticlan to be the main gateway to Boracay. It also built the corresponding Cagban Jetty Port and Passenger Terminal to be the receiving end for tourists in Boracay. Respondent Province operates both ports "to provide structural facilities suited for locals, tourists and guests and to provide safety and security measures."9

In 2005, Boracay 2010 Summit was held and participated in by representatives from national government agencies, local government units (LGUs), and the private sector. Petitioner was one of the organizers and participants thereto. The Summit aimed "to re-establish a common vision of all stakeholders to ensure the conservation, restoration, and preservation of Boracay Island" and "to develop an action plan that [would allow] all sectors to work in concert among and with each other for the long term benefit and sustainability of the island and the community."10 The Summit yielded a Terminal Report11 stating that the participants had shared their dream of having world-class land, water and air infrastructure, as well as given their observations that government support was lacking, infrastructure was poor, and, more importantly, the influx of tourists to Boracay was increasing. The Report showed that there was a need to expand the port facilities at Caticlan due to congestion in the holding area of

the existing port, caused by inadequate facilities, thus tourists suffered long queues while waiting for the boat ride going to the island.12

Respondent Province claimed that tourist arrivals to Boracay reached approximately 649,559 in 2009 and 779,666 in 2010, and this was expected to reach a record of 1 million tourist arrivals in the years to come. Thus, respondent Province conceptualized the expansion of the port facilities at Barangay Caticlan.13

The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13, s. 200814 on April 25, 2008 stating that it had learned that respondent Province had filed an application with the DENR for a foreshore lease of areas along the shorelines of Barangay Caticlan, and manifesting its strong opposition to said application, as the proposed foreshore lease practically covered almost all the coastlines of said barangay, thereby technically diminishing its territorial jurisdiction, once granted, and depriving its constituents of their statutory right of preference in the development and utilization of the natural resources within its jurisdiction. The resolution further stated that respondent Province did not conduct any consultations with the Sangguniang Barangay of Caticlan regarding the proposed foreshore lease, which failure the Sanggunian considered as an act of bad faith on the part of respondent Province.15

On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved Resolution No. 2008-369,16 formally authorizing Governor Marquez to enter into negotiations towards the possibility of effecting self-liquidating and income-producing development and livelihood projects to be financed through bonds, debentures, securities, collaterals, notes or other obligations as provided under Section 299 of the Local Government Code, with the following priority projects: (a) renovation/rehabilitation of the Caticlan/Cagban Passenger Terminal Buildings and Jetty Ports; and (b) reclamation of a portion of Caticlan foreshore for commercial purposes.17 This step was taken as respondent Province’s existing

jetty port and passenger terminal was funded through bond flotation, which was successfully redeemed and paid ahead of the target date. This was allegedly cited as one of the LGU’s Best Practices wherein respondent Province was given the appropriate commendation.18

Respondent Province included the proposed expansion of the port facilities at Barangay Caticlan in its 2009 Annual Investment Plan,19 envisioned as its project site the area adjacent to the existing jetty port, and identified additional areas along the coastline of Barangay Caticlan as the site for future project expansion.20

Governor Marquez sent a letter to respondent PRA on March 12, 200921 expressing the interest of respondent Province to reclaim about 2.64 hectares of land along the foreshores of Barangay Caticlan, Municipality of Malay, Province of Aklan.

Sometime in April 2009, respondent Province entered into an agreement with the Financial Advisor/Consultant that won in the bidding process held a month before, to conduct the necessary feasibility study of the proposed project for the Renovation/Rehabilitation of the Caticlan Passenger Terminal Building and Jetty Port, Enhancement and Recovery of Old Caticlan Coastline, and Reclamation of a Portion of Foreshore for Commercial Purposes (the Marina Project), in Malay, Aklan.22

Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province issued Resolution No. 2009–110,23 which authorized Governor Marquez to file an application to reclaim the 2.64 hectares of foreshore area in Caticlan, Malay, Aklan with respondent PRA.

Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which focused on the land reclamation of 2.64 hectares by way of beach enhancement and recovery of the old Caticlan

coastline for the rehabilitation and expansion of the existing jetty port, and for its future plans – the construction of commercial building and wellness center. The financial component of the said study was Two Hundred Sixty Million Pesos (P260,000,000.00). Its suggested financing scheme was bond flotation.24

Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition to the intended foreshore lease application, through Resolution No. 044,25 approved on July 22, 2009, manifesting therein that respondent Province’s foreshore lease application was for business enterprise purposes for its benefit, at the expense of the local government of Malay, which by statutory provisions was the rightful entity "to develop, utilize and reap benefits from the natural resources found within its jurisdiction."26

In August 2009, a Preliminary Geohazard Assessment27 for the enhancement/expansion of the existing Caticlan Jetty Port and Passenger Terminal through beach zone restoration and Protective Marina Developments in Caticlan, Malay, Aklan was completed.

Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring Program (EPRMP)28 to DENR-EMB RVI, which he had attached to his letter29 dated September 19, 2009, as an initial step for securing an Environmental Compliance Certificate (ECC). The letter reads in part:

With the project expected to start its construction implementation next month, the province hereby assures your good office that it will give preferential attention to and shall comply with whatever comments that you may have on this EPRMP.30 (Emphasis added.)

Respondent Province was then authorized to issue "Caticlan Super Marina Bonds" for the purpose of funding the renovation of the Caticlan Jetty Port and Passenger Terminal Building, and the reclamation

of a portion of the foreshore lease area for commercial purposes in Malay, Aklan through Provincial Ordinance No. 2009-013, approved on September 10, 2009. The said ordinance authorized Governor Marquez to negotiate, sign and execute agreements in relation to the issuance of the Caticlan Super Marina Bonds in the amount not exceeding P260,000,000.00.31

Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial Ordinance No. 2009-01532 on October 1, 2009, amending Provincial Ordinance No. 2009-013, authorizing the bond flotation of the Province of Aklan through Governor Marquez to fund the Marina Project and appropriate the entire proceeds of said bonds for the project, and further authorizing Governor Marquez to negotiate, sign and execute contracts or agreements pertinent to the transaction.33

Within the same month of October 2009, respondent Province deliberated on the possible expansion from its original proposed reclamation area of 2.64 hectares to forty (40) hectares in order to maximize the utilization of its resources and as a response to the findings of the Preliminary Geohazard Assessment study which showed that the recession and retreat of the shoreline caused by coastal erosion and scouring should be the first major concern in the project site and nearby coastal area. The study likewise indicated the vulnerability of the coastal zone within the proposed project site and the nearby coastal area due to the effects of sea level rise and climate change which will greatly affect the social, economic, and environmental situation of Caticlan and nearby Malay coastal communities.34

In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez wrote:

With our substantial compliance with the requirements under Administrative Order No. 2007-2 relative to our request to PRA for approval of the reclamation of the [proposed Beach Zone Restoration and Protection Marine Development in Barangays Caticlan and Manoc-Manoc] and as a result of our

discussion during the [meeting with the respondent PRA on October 12, 2009], may we respectfully submit a revised Reclamation Project Description embodying certain revisions/changes in the size and location of the areas to be reclaimed. x x x.

On another note, we are pleased to inform your Office that the bond flotation we have secured with the Local Government Unit Guarantee Corporation (LGUGC) has been finally approved last October 14, 2009. This will pave the way for the implementation of said project. Briefly, the Province has been recognized by the Bureau of Local Government Finance (BLGF) for its capability to meet its loan obligations. x x x.

With the continued increase of tourists coming to Boracay through Caticlan, the Province is venturing into such development project with the end in view of protection and/or restoring certain segments of the shoreline in Barangays Caticlan (Caticlan side) and Manoc-manoc (Boracay side) which, as reported by experts, has been experiencing tremendous coastal erosion.

For the project to be self-liquidating, however, we will be developing the reclaimed land for commercial and tourism-related facilities and for other complementary uses.35 (Emphasis ours.)

Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No. 2009-29936 authorizing Governor Marquez to enter into a Memorandum of Agreement (MOA) with respondent PRA in the implementation of the Beach Zone Restoration and Protection Marina Development Project, which shall reclaim a total of 40 hectares in the areas adjacent to the jetty ports at Barangay Caticlan and Barangay Manoc-manoc. The Sangguniang Panlalawigan approved the terms and conditions of the necessary agreements for the implementation of the bond flotation of respondent Province to fund the renovation/rehabilitation of the existing jetty port by way of enhancement and recovery of the Old

Caticlan shoreline through reclamation of an area of 2.64 hectares in the amount of P260,000,000.00 on December 1, 2009.37

Respondent Province gave an initial presentation of the project with consultation to the Sangguniang Bayan of Malay38 on December 9, 2009.

Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094 and authorized its General Manager/Chief Executive Officer (CEO) to enter into a MOA with respondent Province for the implementation of the reclamation project.39

On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-096-7100 (the questioned ECC) for Phase 1 of the Reclamation Project to the extent of 2.64 hectares to be done along the Caticlan side beside the existing jetty port.40

On May 17, 2010, respondent Province entered into a MOA41 with respondent PRA. Under Article III, the Project was described therein as follows:

The proposed Aklan Beach Zone Restoration and Protection Marina Development Project involves the reclamation and development of approximately forty (40) hectares of foreshore and offshore areas of the Municipality of Malay x x x.

The land use development of the reclamation project shall be for commercial, recreational and institutional and other applicable uses.42 (Emphases supplied.)

It was at this point that respondent Province deemed it necessary to conduct a series of what it calls "information-education campaigns," which provided the venue for interaction and dialogue with the

public, particularly the Barangay and Municipal officials of the Municipality of Malay, the residents of Barangay Caticlan and Boracay, the stakeholders, and the non-governmental organizations (NGOs). The details of the campaign are summarized as follows43 :

a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan;44

b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal;45

c. July 31, 2010 at Barangay Caticlan Plaza;46

d. September 15, 2010 at the Office of the Provincial Governor with Municipal Mayor of Malay – Mayor John P. Yap;47

e. October 12, 2010 at the Office of the Provincial Governor with the Provincial Development Council Executive Committee;48 and

f. October 29, 2010 at the Office of the Provincial Governor with Officials of LGU-Malay and Petitioner.49

Petitioner claims that during the "public consultation meeting" belatedly called by respondent Province on June 17, 2010, respondent Province presented the Reclamation Project and only then detailed the actions that it had already undertaken, particularly: the issuance of the Caticlan Super Marina Bonds; the execution of the MOA with respondent PRA; the alleged conduct of an Environmental Impact Assessment (EIA) study for the reclamation project; and the expansion of the project to forty (40) hectares from 2.64 hectares.50

In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality reiterated its strong opposition to respondent Province’s project and denied its request for a favorable endorsement of the Marina Project.51

The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted on August 3, 2010, to request respondent PRA "not to grant reclamation permit and notice to proceed to the Marina Project of the [respondent] Provincial Government of Aklan located at Caticlan, Malay, Aklan."52

In a letter53 dated October 12, 2010, petitioner informed respondent PRA of its opposition to the reclamation project, primarily for the reason that, based on the opinion of Dr. Porfirio M. Aliño, an expert from the University of the Philippines Marine Science Institute (UPMSI), which he rendered based on the documents submitted by respondent Province to obtain the ECC, a full EIA study is required to assess the reclamation project’s likelihood of rendering critical and lasting effect on Boracay considering the proximity in distance, geographical location, current and wind direction, and many other environmental considerations in the area. Petitioner noted that said documents had failed to deal with coastal erosion concerns in Boracay. It also noted that respondent Province failed to comply with certain mandatory provisions of the Local Government Code, particularly, those requiring the project proponent to conduct consultations with stakeholders.

Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its opposition to the reclamation project to respondent Province, respondent PRA, respondent DENR-EMB, the National Economic Development Authority Region VI, the Malay Municipality, and other concerned entities.54

Petitioner alleges that despite the Malay Municipality’s denial of respondent Province’s request for a favorable endorsement, as well as the strong opposition manifested both by Barangay Caticlan and

petitioner as an NGO, respondent Province still continued with the implementation of the Reclamation Project.55

On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside Resolution No. 046, s. 2010, of the Municipality of Malay and manifested its support for the implementation of the aforesaid project through its Resolution No. 2010-022.56

On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under its Resolution No. 4130. Respondent PRA wrote to respondent Province on October 19, 2010, informing the latter to proceed with the reclamation and development of phase 1 of site 1 of its proposed project. Respondent PRA attached to said letter its Evaluation Report dated October 18, 2010.57

Petitioner likewise received a copy of respondent PRA’s letter dated October 19, 2010, which authorized respondent Province to proceed with phase 1 of the reclamation project, subject to compliance with the requirements of its Evaluation Report. The reclamation project was described as:

"[A] seafront development involving reclamation of an aggregate area of more or less, forty (40) hectares in two (2) separate sites both in Malay Municipality, Aklan Province. Site 1 is in Brgy. Caticlan with a total area of 36.82 hectares and Site 2 in Brgy. Manoc-Manoc, Boracay Island with a total area of 3.18 hectares. Sites 1 and 2 are on the opposite sides of Tabon Strait, about 1,200 meters apart. x x x." 58 (Emphases added.)

The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034,59 addressed the apprehensions of petitioner embodied in its Resolution No. 001, s. 2010, and supported the implementation of the project. Said resolution stated that the apprehensions of petitioner with regard to

the economic, social and political negative impacts of the projects were mere perceptions and generalities and were not anchored on definite scientific, social and political studies.

In the meantime, a study was commissioned by the Philippine Chamber of Commerce and Industry-Boracay (PCCI-Boracay), funded by the Department of Tourism (DOT) with the assistance of, among others, petitioner. The study was conducted in November 2010 by several marine biologists/experts from the Marine Environmental Resources Foundation (MERF) of the UPMSI. The study was intended to determine the potential impact of a reclamation project in the hydrodynamics of the strait and on the coastal erosion patterns in the southern coast of Boracay Island and along the coast of Caticlan.60

After noting the objections of the respective LGUs of Caticlan and Malay, as well as the apprehensions of petitioner, respondent Province issued a notice to the contractor on December 1, 2010 to commence with the construction of the project.61

On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on Cooperatives, Food, Agriculture, and Environmental Protection and the Committee on Tourism, Trade, Industry and Commerce, conducted a joint committee hearing wherein the study undertaken by the MERF-UPMSI was discussed.62 In attendance were Mr. Ariel Abriam, President of PCCI-Boracay, representatives from the Provincial Government, and Dr. Cesar Villanoy, a professor from the UPMSI. Dr. Villanoy said that the subject project, consisting of 2.64 hectares, would only have insignificant effect on the hydrodynamics of the strait traversing the coastline of Barangay Caticlan and Boracay, hence, there was a distant possibility that it would affect the Boracay coastline, which includes the famous white-sand beach of the island.63

Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution No. 2011-06564 noting the report on the survey of the channel between Caticlan and Boracay conducted by the UPMSI in relation to the effects of the ongoing reclamation to Boracay beaches, and stating that Dr. Villanoy had admitted that nowhere in their study was it pointed out that there would be an adverse effect on the white-sand beach of Boracay.

During the First Quarter Regular Meeting of the Regional Development Council, Region VI (RDC-VI) on April 16, 2011, it approved and supported the subject project (covering 2.64 hectares) through RDC-VI Resolution No. VI-26, series of 2011.65

Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 stating that the study conducted by the UPMSI confirms that the water flow across the Caticlan-Boracay channel is primarily tide-driven, therefore, the marine scientists believe that the 2.64-hectare project of respondent Province would not significantly affect the flow in the channel and would unlikely impact the Boracay beaches. Based on this, PCCI-Boracay stated that it was not opposing the 2.64-hectare Caticlan reclamation project on environmental grounds.66

On June 1, 2011, petitioner filed the instant Petition for Environmental Protection Order/Issuance of the Writ of Continuing Mandamus. On June 7, 2011, this Court issued a Temporary Environmental Protection Order (TEPO) and ordered the respondents to file their respective comments to the petition.67

After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately issued an order to the Provincial Engineering Office and the concerned contractor to cease and desist from conducting any construction activities until further orders from this Court.

The petition is premised on the following grounds:

I.

The respondent Province, proponent of the reclamation project, failed to comply with relevant rules and regulations in the acquisition of an ECC.

A. The reclamation project is co-located within environmentally critical areas requiring the performance of a full, or programmatic, environmental impact assessment.

B. Respondent Province failed to obtain the favorable endorsement of the LGU concerned.

C. Respondent Province failed to conduct the required consultation procedures as required by the Local Government Code.

D. Respondent Province failed to perform a full environmental impact assessment as required by law and relevant regulations.

II.

The reclamation of land bordering the strait between Caticlan and Boracay shall adversely affect the frail ecological balance of the area.68

Petitioner objects to respondent Province’s classification of the reclamation project as single instead of co-located, as "non-environmentally critical," and as a mere "rehabilitation" of the existing jetty port.

Petitioner points out that the reclamation project is on two sites (which are situated on the opposite sides of Tabon Strait, about 1,200 meters apart):

• 36.82 hectares – Site 1, in Bgy. Caticlan • 3.18 hectares – Site 2, in Manoc-manoc, Boracay Island69

Phase 1, which was started in December 2010 without the necessary permits,70 is located on the Caticlan side of a narrow strait separating mainland Aklan from Boracay. In the implementation of the project, respondent Province obtained only an ECC to conduct Phase 1, instead of an ECC on the entire 40 hectares. Thus, petitioner argues that respondent Province abused and exploited the Revised Procedural Manual for DENR Administrative Order No. 30, Series of 2003 (DENR DAO 2003-30)71 relating to the acquisition of an ECC by:

1. Declaring the reclamation project under "Group II Projects-Non-ECP (environmentally critical project) in ECA (environmentally critical area) based on the type and size of the area," and

2. Failing to declare the reclamation project as a co-located project application which would have required the Province to submit a Programmatic Environmental Impact Statement (PEIS)72 or Programmatic Environmental [Performance] Report Management Plan (PE[P]RMP).73 (Emphases ours.)

Petitioner further alleges that the Revised Procedural Manual (on which the classification above is based, which merely requires an Environmental Impact Statement [EIS] for Group II projects) is patently ultra vires, and respondent DENR-EMB RVI committed grave abuse of discretion because the laws on EIS,

namely, Presidential Decree Nos. 1151 and 1586, as well as Presidential Proclamation No. 2146, clearly indicate that projects in environmentally critical areas are to be immediately considered environmentally critical. Petitioner complains that respondent Province applied for an ECC only for Phase 1; hence, unlawfully

evading the requirement that co-located projects74 within Environmentally Critical Areas (ECAs) must submit a PEIS and/or a PEPRMP.

Petitioner argues that respondent Province fraudulently classified and misrepresented the project as a Non-ECP in an ECA, and as a single project instead of a co-located one. The impact assessment allegedly performed gives a patently erroneous and wrongly-premised appraisal of the possible environmental impact of the reclamation project. Petitioner contends that respondent Province’s choice of classification was designed to avoid a comprehensive impact assessment of the reclamation project.

Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately disregarded its duty to ensure that the environment is protected from harmful developmental projects because it allegedly performed only a cursory and superficial review of the documents submitted by the respondent Province for an ECC, failing to note that all the information and data used by respondent Province in its application for the ECC were all dated and not current, as data was gathered in the late 1990s for the ECC issued in 1999 for the first jetty port. Thus, petitioner alleges that respondent DENR-EMB RVI ignored the environmental impact to Boracay, which involves changes in the structure of the coastline that could contribute to the changes in the characteristics of the sand in the beaches of both Caticlan and Boracay.

Petitioner insists that reclamation of land at the Caticlan side will unavoidably adversely affect the Boracay side and notes that the declared objective of the reclamation project is for the exploitation of Boracay’s tourist trade, since the project is intended to enhance support services thereto. But, petitioner argues, the primary reason for Boracay’s popularity is its white-sand beaches which will be negatively affected by the project.

Petitioner alleges that respondent PRA had required respondent Province to obtain the favorable endorsement of the LGUs of Barangay Caticlan and Malay Municipality pursuant to the consultation procedures as required by the Local Government Code.75 Petitioner asserts that the reclamation project is in violation not only of laws on EIS but also of the Local Government Code as respondent Province failed to enter into proper consultations with the concerned LGUs. In fact, the Liga ng mga Barangay-Malay Chapter also expressed strong opposition against the project.76

Petitioner cites Sections 26 and 27 of the Local Government Code, which require consultations if the project or program may cause pollution, climactic change, depletion of non-renewable resources, etc. According to petitioner, respondent Province ignored the LGUs’ opposition expressed as early as 2008. Not only that, respondent Province belatedly called for public "consultation meetings" on June 17 and July 28, 2010, after an ECC had already been issued and the MOA between respondents PRA and Province had already been executed. As the petitioner saw it, these were not consultations but mere "project presentations."

Petitioner claims that respondent Province, aided and abetted by respondents PRA and DENR-EMB, ignored the spirit and letter of the Revised Procedural Manual, intended to implement the various regulations governing the Environmental Impact Assessments (EIAs) to ensure that developmental

projects are in line with sustainable development of natural resources. The project was conceptualized without considering alternatives.

Further, as to its allegation that respondent Province failed to perform a full EIA, petitioner argues that while it is true that as of now, only the Caticlan side has been issued an ECC, the entire project involves the Boracay side, which should have been considered a co-located project. Petitioner claims that any project involving Boracay requires a full EIA since it is an ECA. Phase 1 of the project will affect Boracay and Caticlan as they are separated only by a narrow strait; thus, it should be considered an ECP. Therefore, the ECC and permit issued must be invalidated and cancelled.

Petitioner contends that a study shows that the flow of the water through a narrower channel due to the reclamation project will likely divert sand transport off the southwest part of Boracay, whereas the characteristic coast of the Caticlan side of the strait indicate stronger sediment transport.77 The white-sand beaches of Boracay and its surrounding marine environment depend upon the natural flow of the adjacent waters.

Regarding its claim that the reclamation of land bordering the strait between Caticlan and Boracay shall adversely affect the frail ecological balance of the area, petitioner submits that while the study conducted by the MERF-UPMSI only considers the impact of the reclamation project on the land, it is undeniable that it will also adversely affect the already frail ecological balance of the area. The effect of the project would have been properly assessed if the proper EIA had been performed prior to any implementation of the project.

According to petitioner, respondent Province’s intended purposes do not prevail over its duty and obligation to protect the environment. Petitioner believes that rehabilitation of the Jetty Port may be done through other means.

In its Comment78 dated June 21, 2011, respondent Province claimed that application for reclamation of 40 hectares is advantageous to the Provincial Government considering that its filing fee would only cost Php20,000.00 plus Value Added Tax (VAT) which is also the minimum fee as prescribed under Section 4.2 of Administrative Order No. 2007-2.79

Respondent Province considers the instant petition to be premature; thus, it must necessarily fail for lack of cause of action due to the failure of petitioner to fully exhaust the available administrative remedies even before seeking judicial relief. According to respondent Province, the petition primarily assailed the decision of respondent DENR-EMB RVI in granting the ECC for the subject project consisting of 2.64 hectares and sought the cancellation of the ECC for alleged failure of respondent Province to submit proper documentation as required for its issuance. Hence, the grounds relied upon by petitioner can be addressed within the confines of administrative processes provided by law.

Respondent Province believes that under Section 5.4.3 of DENR Administrative Order No. 2003-30 (DAO 2003-30),80 the issuance of an ECC81 is an official decision of DENR-EMB RVI on the application of a project proponent.82 It cites Section 6 of DENR DAO 2003-30, which provides for a remedy available to the party aggrieved by the final decision on the proponent’s ECC applications.

Respondent Province argues that the instant petition is anchored on a wrong premise that results to petitioner’s unfounded fears and baseless apprehensions. It is respondent Province’s contention that its 2.64-hectare reclamation project is considered as a "stand alone project," separate and independent

from the approved area of 40 hectares. Thus, petitioner should have observed the difference between the "future development plan" of respondent Province from its "actual project" being undertaken.83

Respondent Province clearly does not dispute the fact that it revised its original application to respondent PRA from 2.64 hectares to 40 hectares. However, it claims that such revision is part of its future plan, and implementation thereof is "still subject to availability of funds, independent scientific environmental study, separate application of ECC and notice to proceed to be issued by respondent PRA."84

Respondent Province goes on to claim that "[p]etitioner’s version of the Caticlan jetty port expansion project is a bigger project which is still at the conceptualization stage. Although this project was described in the Notice to Proceed issued by respondent PRA to have two phases, 36.82 hectares in Caticlan and 3.18 hectares in Boracay [Island,] it is totally different from the [ongoing] Caticlan jetty port expansion project."85

Respondent Province says that the Accomplishment Report86 of its Engineering Office would attest that the actual project consists of 2.64 hectares only, as originally planned and conceptualized, which was even reduced to 2.2 hectares due to some construction and design modifications.

Thus, respondent Province alleges that from its standpoint, its capability to reclaim is limited to 2.64 hectares only, based on respondent PRA’s Evaluation Report87 dated October 18, 2010, which was in turn the basis of the issuance of the Notice to Proceed dated October 19, 2010, because the project’s financial component is P260,000,000.00 only. Said Evaluation Report indicates that the implementation of the other phases of the project including site 2, which consists of the other portions of the 40-hectare

area that includes a portion in Boracay, is still within the 10-year period and will depend largely on the availability of funds of respondent Province.88

So, even if respondent PRA approved an area that would total up to 40 hectares, it was divided into phases in order to determine the period of its implementation. Each phase was separate and independent because the source of funds was also separate. The required documents and requirements were also specific for each phase. The entire approved area of 40 hectares could be implemented within a period of 10 years but this would depend solely on the availability of funds.89

As far as respondent Province understands it, additional reclamations not covered by the ECC, which only approved 2.64 hectares, should undergo another EIA. If respondent Province intends to commence the construction on the other component of the 40 hectares, then it agrees that it is mandated to secure a new ECC.90

Respondent Province admits that it dreamt of a 40-hectare project, even if it had originally planned and was at present only financially equipped and legally compliant to undertake 2.64 hectares of the project, and only as an expansion of its old jetty port.91

Respondent Province claims that it has complied with all the necessary requirements for securing an ECC. On the issue that the reclamation project is within an ECA requiring the performance of a full or programmatic EIA, respondent Province reiterates that the idea of expanding the area to 40 hectares is only a future plan. It only secured an ECC for 2.64 hectares, based on the limits of its funding and authority. From the beginning, its intention was to rehabilitate and expand the existing jetty port terminal to accommodate an increasing projected traffic. The subject project is specifically classified under DENR DAO 2003-30 on its Project Grouping Matrix for Determination of EIA Report Type

considered as Minor Reclamation Projects falling under Group II – Non ECP in an ECA. Whether 2.64 or 40 hectares in area, the subject project falls within this classification.

Consequently, respondent Province claims that petitioner erred in considering the ongoing reclamation project at Caticlan, Malay, Aklan, as co-located within an ECA.

Respondent Province, likewise argues that the 2.64-hectare project is not a component of the approved 40-hectare area as it is originally planned for the expansion site of the existing Caticlan jetty port. At present, it has no definite conceptual construction plan of the said portion in Boracay and it has no financial allocation to initiate any project on the said Boracay portion.

Furthermore, respondent Province contends that the present project is located in Caticlan while the alleged component that falls within an ECA is in Boracay. Considering its geographical location, the two sites cannot be considered as a contiguous area for the reason that it is separated by a body of water – a strait that traverses between the mainland Panay wherein Caticlan is located and Boracay. Hence, it is erroneous to consider the two sites as a co-located project within an ECA. Being a "stand alone project" and an expansion of the existing jetty port, respondent DENR-EMB RVI had required respondent Province to perform an EPRMP to secure an ECC as sanctioned by Item No. 8(b), page 7 of DENR DAO 2003-30.

Respondent Province contends that even if, granting for the sake of argument, it had erroneously categorized its project as Non-ECP in an ECA, this was not a final determination. Respondent DENR-EMB RVI, which was the administrator of the EIS system, had the final decision on this matter. Under DENR DAO 2003-30, an application for ECC, even for a Category B2 project where an EPRMP is conducted, shall be subjected to a review process. Respondent DENR-EMB RVI had the authority to

deny said application. Its Regional Director could either issue an ECC for the project or deny the application. He may also require a more comprehensive EIA study. The Regional Director issued the ECC based on the EPRMP submitted by respondent Province and after the same went through the EIA review process.

Thus, respondent Province concludes that petitioner’s allegation of this being a "co-located project" is premature if not baseless as the bigger reclamation project is still on the conceptualization stage. Both respondents PRA and Province are yet to complete studies and feasibility studies to embark on another project.

Respondent Province claims that an ocular survey of the reclamation project revealed that it had worked within the limits of the ECC.92

With regard to petitioner’s allegation that respondent Province failed to get the favorable endorsement of the concerned LGUs in violation of the Local Government Code, respondent Province contends that consultation vis-à-vis the favorable endorsement from the concerned LGUs as contemplated under the Local Government Code are merely tools to seek advice and not a power clothed upon the LGUs to unilaterally approve or disapprove any government projects. Furthermore, such endorsement is not necessary for projects falling under Category B2 unless required by the DENR-EMB RVI, under Section 5.3 of DENR DAO 2003-30.

Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance of permits and certifications as a pre-requisite for the issuance of an ECC. Respondent Province claims to have conducted consultative activities with LGUs in connection with Sections 26 and 27 of the Local Government Code. The vehement and staunch objections of both the Sangguniang Barangay of

Caticlan and the Sangguniang Bayan of Malay, according to respondent Province, were not rooted on its perceived impact upon the people and the community in terms of environmental or ecological balance, but due to an alleged conflict with their "principal position to develop, utilize and reap benefits from the natural resources found within its jurisdiction."93 Respondent Province argues that these concerns are not within the purview of the Local Government Code. Furthermore, the Preliminary Geohazard Assessment Report and EPRMP as well as Sangguniang Panlalawigan Resolution Nos. 2010-022 and 2010-034 should address any environmental issue they may raise.

Respondent Province posits that the spirit and intent of Sections 26 and 27 of the Local Government Code is to create an avenue for parties, the proponent and the LGU concerned, to come up with a tool in harmonizing its views and concerns about the project. The duty to consult does not automatically require adherence to the opinions during the consultation process. It is allegedly not within the provisions to give the full authority to the LGU concerned to unilaterally approve or disapprove the project in the guise of requiring the proponent of securing its favorable endorsement. In this case, petitioner is calling a halt to the project without providing an alternative resolution to harmonize its position and that of respondent Province.

Respondent Province claims that the EPRMP94 would reveal that:

[T]he area fronting the project site is practically composed of sand. Dead coral communities may be found along the vicinity. Thus, fish life at the project site is quite scarce due to the absence of marine support systems like the sea grass beds and coral reefs.

x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point of jetty to the shallowest point, there was no more coral patch and the substrate is sandy. It is of public knowledge that

the said foreshore area is being utilized by the residents ever since as berthing or anchorage site of their motorized banca. There will be no possibility of any coral development therein because of its continuous utilization. Likewise, the activity of the strait that traverses between the main land Caticlan and Boracay Island would also be a factor of the coral development. Corals [may] only be formed within the area if there is scientific human intervention, which is absent up to the present.

In light of the foregoing premise, it casts serious doubt on petitioner’s allegations pertaining to the environmental effects of Respondent-LGU’s 2.64 hectares reclamation project. The alleged environmental impact of the subject project to the beaches of Boracay Island remains unconfirmed. Petitioner had unsuccessfully proven that the project would cause imminent, grave and irreparable injury to the community.95

Respondent Province prayed for the dissolution of the TEPO, claiming that the rules provide that the TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause irreparable damage to the party or person enjoined, while the applicant may be fully compensated for such damages as he may suffer and subject to the posting of a sufficient bond by the party or person enjoined. Respondent Province contends that the TEPO would cause irreparable damage in two aspects:

a. Financial dislocation and probable bankruptcy; and

b. Grave and imminent danger to safety and health of inhabitants of immediate area, including tourists and passengers serviced by the jetty port, brought about by the abrupt cessation of development works.

As regards financial dislocation, the arguments of respondent Province are summarized below:

1. This project is financed by bonds which the respondent Province had issued to its creditors as the financing scheme in funding the present project is by way of credit financing through bond flotation.

2. The funds are financed by a Guarantee Bank – getting payment from bonds, being sold to investors, which in turn would be paid by the income that the project would realize or incur upon its completion.

3. While the project is under construction, respondent Province is appropriating a portion of its Internal Revenue Allotment (IRA) budget from the 20% development fund to defray the interest and principal amortization due to the Guarantee Bank.

4. The respondent Province’s IRA, regular income, and/or such other revenues or funds, as may be permitted by law, are being used as security for the payment of the said loan used for the project’s construction.

5. The inability of the subject project to earn revenues as projected upon completion will compel the Province to shoulder the full amount of the obligation, starting from year 2012.

6. Respondent province is mandated to assign its IRA, regular income and/or such other revenues or funds as permitted by law; if project is stopped, detriment of the public welfare and its constituents.96

As to the second ground for the dissolution of the TEPO, respondent Province argues:

1. Non-compliance with the guidelines of the ECC may result to environmental hazards most especially that reclaimed land if not properly secured may be eroded into the sea.

2. The construction has accomplished 65.26 percent of the project. The embankment that was deposited on the project has no proper concrete wave protection that might be washed out in the event that a strong typhoon or big waves may occur affecting the strait and the properties along the project site. It is already the rainy season and there is a big possibility of typhoon occurrence.

3. If said incident occurs, the aggregates of the embankment that had been washed out might be transferred to the adjoining properties which could affect its natural environmental state.

4. It might result to the total alteration of the physical landscape of the area attributing to environmental disturbance.

5. The lack of proper concrete wave protection or revetment would cause the total erosion of the embankment that has been dumped on the accomplished area.97

Respondent Province claims that petitioner will not stand to suffer immediate, grave and irreparable injury or damage from the ongoing project. The petitioner’s perceived fear of environmental destruction brought about by its erroneous appreciation of available data is unfounded and does not translate into a matter of extreme urgency. Thus, under the Rules of Procedure on Environmental Cases, the TEPO may be dissolved.

Respondent PRA filed its Comment98 on June 22, 2011. It alleges that on June 24, 2006, Executive Order No. 543 delegated the power "to approve reclamation projects to respondent PRA through its governing Board, subject to compliance with existing laws and rules and further subject to the condition that reclamation contracts to be executed with any person or entity (must) go through public bidding."

Section 4 of respondent PRA’s Administrative Order No. 2007-2 provides for the approval process and procedures for various reclamation projects to be undertaken. Respondent PRA prepared an Evaluation Report on November 5, 200999 regarding Aklan’s proposal to increase its project to 40 hectares.

Respondent PRA contends that it was only after respondent Province had complied with the requirements under the law that respondent PRA, through its Board of Directors, approved the proposed project under its Board Resolution No. 4094.100 In the same Resolution, respondent PRA Board authorized the General Manager/CEO to execute a MOA with the Aklan provincial government to implement the reclamation project under certain conditions.

The issue for respondent PRA was whether or not it approved the respondent Province’s 2.64-hectare reclamation project proposal in willful disregard of alleged "numerous irregularities" as claimed by petitioner.101

Respondent PRA claims that its approval of the Aklan Reclamation Project was in accordance with law and its rules. Indeed, it issued the notice to proceed only after Aklan had complied with all the requirements imposed by existing laws and regulations. It further contends that the 40 hectares involved in this project remains a plan insofar as respondent PRA is concerned. What has been approved for reclamation by respondent PRA thus far is only the 2.64-hectare reclamation project. Respondent PRA

reiterates that it approved this reclamation project after extensively reviewing the legal, technical, financial, environmental, and operational aspects of the proposed reclamation.102

One of the conditions that respondent PRA Board imposed before approving the Aklan project was that no reclamation work could be started until respondent PRA has approved the detailed engineering plans/methodology, design and specifications of the reclamation. Part of the required submissions to respondent PRA includes the drainage design as approved by the Public Works Department and the ECC as issued by the DENR, all of which the Aklan government must submit to respondent PRA before starting any reclamation works.103 Under Article IV(B)(3) of the MOA between respondent PRA and Aklan, the latter is required to submit, apart from the ECC, the following requirements for respondent PRA’s review and approval, as basis for the issuance of a Notice to Proceed (NTP) for Reclamation Works:

(a) Land-form plan with technical description of the metes and bounds of the same land-form;

(b) Final master development and land use plan for the project;

(c) Detailed engineering studies, detailed engineering design, plans and specification for reclamation works, reclamation plans and methodology, plans for the sources of fill materials;

(d) Drainage plan vis-a-vis the land-form approved by DPWH Regional Office to include a cost effective and efficient drainage system as may be required based on the results of the studies;

(e) Detailed project cost estimates and quantity take-off per items of work of the rawland reclamation components, e.g. reclamation containment structures and soil consolidation;

(f) Organizational chart of the construction arm, manning table, equipment schedule for the project; and,

(g) Project timetable (PERT/CPM) for the entire project construction period.104

In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the MOA to strictly comply with all conditions of the DENR-EMB-issued ECC "and/or comply with pertinent local and international commitments of the Republic of the Philippines to ensure environmental protection."105

In its August 11, 2010 letter,106 respondent PRA referred for respondent Province’s appropriate action petitioner’s Resolution 001, series of 2010 and Resolution 46, series of 2010, of the Sangguniang Bayan of Malay. Governor Marquez wrote respondent PRA107 on September 16, 2010 informing it that respondent Province had already met with the different officials of Malay, furnishing respondent PRA with the copies of the minutes of such meetings/presentations. Governor Marquez also assured respondent PRA that it had complied with the consultation requirements as far as Malay was concerned.

Respondent PRA claims that in evaluating respondent Province’s project and in issuing the necessary NTP for Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port expansion and modernization, respondent PRA gave considerable weight to all pertinent issuances, especially the ECC issued by DENR-EMB RVI.108 Respondent PRA stresses that its earlier approval of the 40-hectare reclamation project under its Resolution No. 4094, series of 2010, still requires a second level of compliance

requirements from the proponent. Respondent Province could not possibly begin its reclamation works since respondent PRA had yet to issue an NTP in its favor.

Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for Phase 1 of Site 1, it required the submission of the following pre-construction documents:

(a) Land-Form Plan (with technical description);

(b) Site Development Plan/Land Use Plan including,

(i) sewer and drainage systems and

(ii) waste water treatment;

(c) Engineering Studies and Engineering Design;

(d) Reclamation Methodology;

(e) Sources of Fill Materials, and,

(f) The ECC.109

Respondent PRA claims that it was only after the evaluation of the above submissions that it issued to respondent Province the NTP, limited to the 2.64-hectare reclamation project. Respondent PRA even emphasized in its evaluation report that should respondent Province pursue the other phases of its project, it would still require the submission of an ECC for each succeeding phases before the start of any reclamation works.110

Respondent PRA, being the national government’s arm in regulating and coordinating all reclamation projects in the Philippines – a mandate conferred by law – manifests that it is incumbent upon it, in the exercise of its regulatory functions, to diligently evaluate, based on its technical competencies, all reclamation projects submitted to it for approval. Once the reclamation project’s requirements set forth by law and related rules have been complied with, respondent PRA is mandated to approve the same. Respondent PRA claims, "[w]ith all the foregoing rigorous and detailed requirements submitted and complied with by Aklan, and the attendant careful and meticulous technical and legal evaluation by respondent PRA, it cannot be argued that the reclamation permit it issued to Aklan is ‘founded upon numerous irregularities;’ as recklessly and baselessly imputed by BFI."111

In its Comment112 dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of issuing the ECC certifies that the project had undergone the proper EIA process by assessing, among others, the direct and indirect impact of the project on the biophysical and human environment and ensuring that these impacts are addressed by appropriate environmental protection and enhancement measures, pursuant to Presidential Decree No. 1586, the Revised Procedural Manual for DENR DAO 2003-30, and the existing rules and regulations.113

Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which includes Boracay as tourist zone and marine reserve under Proclamation No. 1801, has no relevance to the expansion project of Caticlan Jetty Port and Passenger Terminal for the very reason that the project is not located in the Island of Boracay, being located in Barangay Caticlan, Malay, which is not a part of mainland Panay. It admits that the site of the subject jetty port falls within the ECA under Proclamation No. 2146 (1981), being within the category of a water body. This was why respondent Province had faithfully secured an ECC pursuant to the Revised Procedural Manual for DENR DAO 2003-30 by submitting the necessary documents as contained in the EPRMP on March 19, 2010, which were the

bases in granting ECC No. R6-1003-096-7100 (amended) on April 27, 2010 for the expansion of Caticlan Jetty Port and Passenger Terminal, covering 2.64 hectares.114

Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and Malay had been considered by the DENR-Provincial Environment and Natural Resources Office (PENRO), Aklan in the issuance of the Order115 dated January 26, 2010, disregarding the claim of the Municipality of Malay, Aklan of a portion of the foreshore land in Caticlan covered by the application of the Province of Aklan; and another Order of Rejection dated February 5, 2010 of the two foreshore applications, namely FLA No. 060412-43A and FLA No. 060412-43B, of the Province of Aklan.116

Respondent DENR-EMB RVI contends that the supporting documents attached to the EPRMP for the issuance of an ECC were merely for the expansion and modernization of the old jetty port in Barangay Caticlan covering 2.64 hectares, and not the 40-hectare reclamation project in Barangay Caticlan and Boracay. The previous letter of respondent Province dated October 14, 2009 addressed to DENR-EMB RVI Regional Executive Director, would show that the reclamation project will cover approximately 2.6 hectares.117 This application for ECC was not officially accepted due to lack of requirements or documents.

Although petitioner insists that the project involves 40 hectares in two sites, respondent DENR-EMB RVI looked at the documents submitted by respondent Province and saw that the subject area covered by the ECC application and subsequently granted with ECC-R6-1003-096-7100 consists only of 2.64 hectares; hence, respondent DENR-EMB RVI could not comment on the excess area.118

Respondent DENR-EMB RVI admits that as regards the classification of the 2.64-hectare reclamation project under "Non ECP in ECA," this does not fall within the definition of a co-located project because

the subject project is merely an expansion of the old Caticlan Jetty Port, which had a previously issued ECC (ECC No. 0699-1012-171 on October 12, 1999). Thus, only an EPRMP, not a PEIS or PEPRMP, is required.119

Respondent Province submitted to respondent DENR-EMB RVI the following documents contained in the EPRMP:

a. The Observations on the Floor Bottom and its Marine Resources at the Proposed Jetty Ports at Caticlan and Manok-manok, Boracay, Aklan, conducted in 1999 by the Bureau of Fisheries Aquatic Resources (BFAR) Central Office, particularly in Caticlan site, and

b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and Geosciences Bureau (MGB), Central Office and Engr. Roger Esto, Provincial Planning and Development Office (PPDO), Aklan in 2009 entitled "Preliminary Geo-hazard Assessment for the Enhancement of the Existing Caticlan Jetty Port Terminal through Beach Zone Restoration and Protective Marina Development in Malay, Aklan."

Respondent DENR-EMB RVI claims that the above two scientific studies were enough for it to arrive at a best professional judgment to issue an amended ECC for the Aklan Marina Project covering 2.64 hectares.120 Furthermore, to confirm that the 2.64-hectare reclamation has no significant negative impact with the surrounding environment particularly in Boracay, a more recent study was conducted, and respondent DENR-EMB RVI alleges that "[i]t is very important to highlight that the input data in the [MERF- UPMSI] study utilized the [40-hectare] reclamation and [200-meter] width seaward using the tidal and wave modelling."121 The study showed that the reclamation of 2.64 hectares had no effect to the hydrodynamics of the strait between Barangay Caticlan and Boracay.

Respondent DENR-EMB RVI affirms that no permits and/or clearances from National Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08, entitled "Simplifying the Requirements of ECC or CNC Applications;" that the EPRMP was evaluated and processed based on the Revised Procedural Manual for DENR DAO 2003-30 which resulted to the issuance of ECC-R6-1003-096-7100; and that the ECC is not a permit per se but a planning tool for LGUs to consider in its decision whether or not to issue a local permit.122

Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed and deprived the DENR Secretary of the opportunity to review and/or reverse the decision of his subordinate office, EMB RVI pursuant to the Revised Procedural Manual for DENR DAO 2003-30. There is no "extreme urgency that necessitates the granting of Mandamus or issuance of TEPO that put to balance between the life and death of the petitioner or present grave or irreparable damage to environment."123

After receiving the above Comments from all the respondents, the Court set the case for oral arguments on September 13, 2011.

Meanwhile, on September 8, 2011, respondent Province filed a Manifestation and Motion124 praying for the dismissal of the petition, as the province was no longer pursuing the implementation of the succeeding phases of the project due to its inability to comply with Article IV B.2(3) of the MOA; hence, the issues and fears expressed by petitioner had become moot. Respondent Province alleges that the petition is "premised on a serious misappreciation of the real extent of the contested reclamation project" as certainly the ECC covered only a total of 2,691 square meters located in Barangay Caticlan, Malay, Aklan; and although the MOA spoke of 40 hectares, respondent Province’s submission of documents to respondent PRA pertaining to said area was but the first of a two-step process of approval. Respondent Province claims that its failure to comply with the documentary requirements of

respondent PRA within the period provided, or 120 working days from the effectivity of the MOA, indicated its waiver to pursue the remainder of the project.125 Respondent Province further manifested:

Confirming this in a letter dated 12 August 2011,126 Governor Marquez informed respondent PRA that the Province of Aklan is no longer "pursuing the implementation of the succeeding phases of the project with a total area of 37.4 hectares for our inability to comply with Article IV B.2 (3) of the MOA; hence, the existing MOA will cover only the project area of 2.64 hectares."

In his reply-letter dated August 22, 2011,127 [respondent] PRA General Manager informed Governor Marquez that the [respondent] PRA Board of Directors has given [respondent] PRA the authority to confirm the position of the Province of Aklan that the "Aklan Beach Zone Restoration and Protection Marine Development Project will now be confined to the reclamation and development of the 2.64 hectares, more or less.

It is undisputed from the start that the coverage of the Project is in fact limited to 2.64 hectares, as evidenced by the NTP issued by respondent PRA. The recent exchange of correspondence between respondents Province of Aklan and [respondent] PRA further confirms the intent of the parties all along. Hence, the Project subject of the petition, without doubt, covers only 2.64 and not 40 hectares as feared. This completely changes the extent of the Project and, consequently, moots the issues and fears expressed by the petitioner.128 (Emphasis supplied.)

Based on the above contentions, respondent Province prays that the petition be dismissed as no further justiciable controversy exists since the feared adverse effect to Boracay Island’s ecology had become academic all together.129

The Court heard the parties’ oral arguments on September 13, 2011 and gave the latter twenty (20) days thereafter to file their respective memoranda.

Respondent Province filed another Manifestation and Motion,130 which the Court received on April 2, 2012 stating that:

1. it had submitted the required documents and studies to respondent DENR-EMB RVI before an ECC was issued in its favor;

2. it had substantially complied with the requirements provided under PRA Administrative Order 2007-2, which compliance caused respondent PRA’s Board to approve the reclamation project; and

3. it had conducted a series of "consultative [presentations]" relative to the reclamation project before the LGU of Malay Municipality, the Barangay Officials of Caticlan, and stakeholders of Boracay Island.

Respondent Province further manifested that the Barangay Council of Caticlan, Malay, Aklan enacted on February 13, 2012 Resolution No. 003, series of 2012, entitled "Resolution Favorably Endorsing the 2.6 Hectares Reclamation/MARINA Project of the Aklan Provincial Government at Caticlan Coastline"131 and that the Sangguniang Bayan of the Municipality of Malay, Aklan enacted Resolution No. 020, series of 2012, entitled "Resolution Endorsing the 2.6 Hectares Reclamation Project of the Provincial Government of Aklan Located at Barangay Caticlan, Malay, Aklan."132

Respondent Province claims that its compliance with the requirements of respondents DENR-EMB RVI and PRA that led to the approval of the reclamation project by the said government agencies, as well as

the recent enactments of the Barangay Council of Caticlan and the Sangguniang Bayan of the Municipality of Malay favorably endorsing the said project, had "categorically addressed all the issues raised by the Petitioner in its Petition dated June 1, 2011." Respondent Province prays as follows:

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that after due proceedings, the following be rendered:

1. The Temporary Environmental Protection Order (TEPO) it issued on June 7, 2011 be lifted/dissolved.

2. The instant petition be dismissed for being moot and academic.

3. Respondent Province of Aklan prays for such other reliefs that are just and equitable under the premises. (Emphases in the original.)

ISSUES

The Court will now resolve the following issues:

I. Whether or not the petition should be dismissed for having been rendered moot and academic

II. Whether or not the petition is premature because petitioner failed to exhaust administrative remedies before filing this case

III. Whether or not respondent Province failed to perform a full EIA as required by laws and regulations based on the scope and classification of the project

IV. Whether or not respondent Province complied with all the requirements under the pertinent laws and regulations

V. Whether or not there was proper, timely, and sufficient public consultation for the project

DISCUSSION

On the issue of whether or not the Petition should be dismissed for having been rendered moot and academic

Respondent Province claims in its Manifestation and Motion filed on April 2, 2012 that with the alleged favorable endorsement of the reclamation project by the Sangguniang Barangay of Caticlan and the Sangguniang Bayan of the Municipality of Malay, all the issues raised by petitioner had already been addressed, and this petition should be dismissed for being moot and academic.

On the contrary, a close reading of the two LGUs’ respective resolutions would reveal that they are not sufficient to render the petition moot and academic, as there are explicit conditions imposed that must be complied with by respondent Province. In Resolution No. 003, series of 2012, of the Sangguniang Barangay of Caticlan it is stated that "any vertical structures to be constructed shall be subject for barangay endorsement."133 Clearly, what the barangay endorsed was the reclamation only, and not the entire project that includes the construction of a commercial building and wellness center, and other tourism-related facilities. Petitioner’s objections, as may be recalled, pertain not only to the reclamation

per se, but also to the building to be constructed and the entire project’s perceived ill effects to the surrounding environment.

Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay134 is even more specific. It reads in part:

WHEREAS, noble it seems the reclamation project to the effect that it will generate scores of benefits for the Local Government of Malay in terms of income and employment for its constituents, but the fact cannot be denied that the project will take its toll on the environment especially on the nearby fragile island of Boracay and the fact also remains that the project will eventually displace the local transportation operators/cooperatives;

WHEREAS, considering the sensitivity of the project, this Honorable Body through the Committee where this matter was referred conducted several consultations/committee hearings with concerned departments and the private sector specifically Boracay Foundation, Inc. and they are one in its belief that this Local Government Unit has never been against development so long as compliance with the law and proper procedures have been observed and that paramount consideration have been given to the environment lest we disturb the balance of nature to the end that progress will be brought to naught;

WHEREAS, time and again, to ensure a healthy intergovernmental relations, this August Body requires no less than transparency and faithful commitment from the Provincial Government of Aklan in the process of going through these improvements in the Municipality because it once fell prey to infidelities in matters of governance;

WHEREAS, as a condition for the grant of this endorsement and to address all issues and concerns, this Honorable Council necessitates a sincere commitment from the Provincial Government of Aklan to the end that:

1. To allocate an office space to LGU-Malay within the building in the reclaimed area;

2. To convene the Cagban and Caticlan Jetty Port Management Board before the resumption of the reclamation project;

3. That the reclamation project shall be limited only to 2.6 hectares in Barangay Caticlan and not beyond;

4. That the local transportation operators/cooperatives will not be displaced; and

5. The Provincial Government of Aklan conduct a simultaneous comprehensive study on the environmental impact of the reclamation project especially during Habagat and Amihan seasons and put in place as early as possible mitigating measures on the effect of the project to the environment.

WHEREAS, having presented these stipulations, failure to comply herewith will leave this August Body no choice but to revoke this endorsement, hence faithful compliance of the commitment of the Provincial Government is highly appealed for[.]135 (Emphases added.)

The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent Province to comply with on pain of revocation of its endorsement of the project, including the need to conduct a comprehensive study on the environmental impact of the reclamation project, which is the heart of the

petition before us. Therefore, the contents of the two resolutions submitted by respondent Province do not support its conclusion that the subsequent favorable endorsement of the LGUs had already addressed all the issues raised and rendered the instant petition moot and academic.

On the issue of failure to exhaust administrative remedies

Respondents, in essence, argue that the present petition should be dismissed for petitioner’s failure to exhaust administrative remedies and even to observe the hierarchy of courts. Furthermore, as the petition questions the issuance of the ECC and the NTP, this involves factual and technical verification, which are more properly within the expertise of the concerned government agencies.

Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which provides:

Section 6. Appeal

Any party aggrieved by the final decision on the ECC / CNC applications may, within 15 days from receipt of such decision, file an appeal on the following grounds:

a. Grave abuse of discretion on the part of the deciding authority, or

b. Serious errors in the review findings.

The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle grievances between proponents and aggrieved parties to avert unnecessary legal action. Frivolous appeals shall not be countenanced.

The proponent or any stakeholder may file an appeal to the following:

Deciding Authority

Where to file the appeal

EMB Regional Office Director

Office of the EMB Director

EMB Central Office Director

Office of the DENR Secretary

DENR Secretary Office of the President

(Emphases supplied.)

Respondents argue that since there is an administrative appeal provided for, then petitioner is duty bound to observe the same and may not be granted recourse to the regular courts for its failure to do so.

We do not agree with respondents’ appreciation of the applicability of the rule on exhaustion of administrative remedies in this case. We are reminded of our ruling in Pagara v. Court of Appeals,136 which summarized our earlier decisions on the procedural requirement of exhaustion of administrative remedies, to wit:

The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not applicable (1) where the question in dispute is purely a legal one, or (2) where the controverted act is patently

illegal or was performed without jurisdiction or in excess of jurisdiction; or (3) where the respondent is a department secretary, whose acts as an alter ego of the President bear the implied or assumed approval of the latter, unless actually disapproved by him, or (4) where there are circumstances indicating the urgency of judicial intervention, - Gonzales vs. Hechanova, L-21897, October 22, 1963, 9 SCRA 230; Abaya vs. Villegas, L-25641, December 17, 1966, 18 SCRA; Mitra vs. Subido, L-21691, September 15, 1967, 21 SCRA 127.

Said principle may also be disregarded when it does not provide a plain, speedy and adequate remedy, (Cipriano vs. Marcelino, 43 SCRA 291), when there is no due process observed (Villanos vs. Subido, 45 SCRA 299), or where the protestant has no other recourse (Sta. Maria vs. Lopez, 31 SCRA 637).137 (Emphases supplied.)

As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR DAO 2003-30 is only applicable, based on the first sentence thereof, if the person or entity charged with the duty to exhaust the administrative remedy of appeal to the appropriate government agency has been a party or has been made a party in the proceedings wherein the decision to be appealed was rendered. It has been established by the facts that petitioner was never made a party to the proceedings before respondent DENR-EMB RVI. Petitioner was only informed that the project had already been approved after the ECC was already granted.138 Not being a party to the said proceedings, it does not appear that petitioner was officially furnished a copy of the decision, from which the 15-day period to appeal should be reckoned, and which would warrant the application of Section 6, Article II of DENR DAO 2003-30.

Although petitioner was not a party to the proceedings where the decision to issue an ECC was rendered, it stands to be aggrieved by the decision,139 because it claims that the reclamation of land on the Caticlan side would unavoidably adversely affect the Boracay side, where petitioner’s members own

establishments engaged in the tourism trade. As noted earlier, petitioner contends that the declared objective of the reclamation project is to exploit Boracay’s tourism trade because the project is intended to enhance support services thereto; however, this objective would not be achieved since the white-sand beaches for which Boracay is famous might be negatively affected by the project. Petitioner’s conclusion is that respondent Province, aided and abetted by respondents PRA and DENR-EMB RVI, ignored the spirit and letter of our environmental laws, and should thus be compelled to perform their duties under said laws.

The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a relief for petitioner under the writ of continuing mandamus, which is a special civil action that may be availed of "to compel the performance of an act specifically enjoined by law"140 and which provides for the issuance of a TEPO "as an auxiliary remedy prior to the issuance of the writ itself."141 The Rationale of the said Rules explains the writ in this wise:

Environmental law highlights the shift in the focal-point from the initiation of regulation by Congress to the implementation of regulatory programs by the appropriate government agencies.

Thus, a government agency’s inaction, if any, has serious implications on the future of environmental law enforcement. Private individuals, to the extent that they seek to change the scope of the regulatory process, will have to rely on such agencies to take the initial incentives, which may require a judicial component. Accordingly, questions regarding the propriety of an agency’s action or inaction will need to be analyzed.

This point is emphasized in the availability of the remedy of the writ of mandamus, which allows for the enforcement of the conduct of the tasks to which the writ pertains: the performance of a legal duty.142 (Emphases added.)

The writ of continuing mandamus "permits the court to retain jurisdiction after judgment in order to ensure the successful implementation of the reliefs mandated under the court’s decision" and, in order to do this, "the court may compel the submission of compliance reports from the respondent government agencies as well as avail of other means to monitor compliance with its decision."143

According to petitioner, respondent Province acted pursuant to a MOA with respondent PRA that was conditioned upon, among others, a properly-secured ECC from respondent DENR-EMB RVI. For this reason, petitioner seeks to compel respondent Province to comply with certain environmental laws, rules, and procedures that it claims were either circumvented or ignored. Hence, we find that the petition was appropriately filed with this Court under Rule 8, Section 1, A.M. No. 09-6-8-SC, which reads:

SECTION 1. Petition for continuing mandamus.—When any agency or instrumentality of the government or officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein, or unlawfully excludes another from the use or enjoyment of such right and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty, attaching thereto supporting evidence, specifying that the petition concerns an environmental law, rule or regulation, and praying that judgment be rendered commanding the respondent to do an act or series of acts until the judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the respondent,

under the law, rules or regulations. The petition shall also contain a sworn certification of non-forum shopping.

SECTION 2. Where to file the petition.—The petition shall be filed with the Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court.

Petitioner had three options where to file this case under the rule: the Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred, the Court of Appeals, or this Court.

Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law to determine the questions of unique national and local importance raised here that pertain to laws and rules for environmental protection, thus it was justified in coming to this Court.

Having resolved the procedural issue, we now move to the substantive issues.

On the issues of whether, based on the scope and classification of the project, a full EIA is required by laws and regulations, and whether respondent Province complied with all the requirements under the pertinent laws and regulations

Petitioner’s arguments on this issue hinges upon its claim that the reclamation project is misclassified as a single project when in fact it is co-located. Petitioner also questions the classification made by respondent Province that the reclamation project is merely an expansion of the existing jetty port, when the project descriptions embodied in the different documents filed by respondent Province describe commercial establishments to be built, among others, to raise revenues for the LGU; thus, it should have

been classified as a new project. Petitioner likewise cries foul to the manner by which respondent Province allegedly circumvented the documentary requirements of the DENR-EMB RVI by the act of connecting the reclamation project with its previous project in 1999 and claiming that the new project is a mere expansion of the previous one.

As previously discussed, respondent Province filed a Manifestation and Motion stating that the ECC issued by respondent DENR-EMB RVI covered an area of 2,691 square meters in Caticlan, and its application for reclamation of 40 hectares with respondent PRA was conditioned on its submission of specific documents within 120 days. Respondent Province claims that its failure to comply with said condition indicated its waiver to pursue the succeeding phases of the reclamation project and that the subject matter of this case had thus been limited to 2.64 hectares. Respondent PRA, for its part, declared through its General Manager that the "Aklan Beach Zone Restoration and Protection Marine Development Project will now be confined to the reclamation and development of the 2.64 hectares, more or less."144

The Court notes such manifestation of respondent Province. Assuming, however, that the area involved in the subject reclamation project has been limited to 2.64 hectares, this case has not become moot and academic, as alleged by respondents, because the Court still has to check whether respondents had complied with all applicable environmental laws, rules, and regulations pertaining to the actual reclamation project.

We recognize at this point that the DENR is the government agency vested with delegated powers to review and evaluate all EIA reports, and to grant or deny ECCs to project proponents.145 It is the DENR that has the duty to implement the EIS system. It appears, however, that respondent DENR-EMB RVI’s

evaluation of this reclamation project was problematic, based on the valid questions raised by petitioner.

Being the administrator of the EIS System, respondent DENR-EMB RVI’s submissions bear great weight in this case. However, the following are the issues that put in question the wisdom of respondent DENR-EMB RVI in issuing the ECC:

1. Its approval of respondent Province’s classification of the project as a mere expansion of the existing jetty port in Caticlan, instead of classifying it as a new project;

2. Its classification of the reclamation project as a single instead of a co-located project;

3. The lack of prior public consultations and approval of local government agencies; and

4. The lack of comprehensive studies regarding the impact of the reclamation project to the environment.

The above issues as raised put in question the sufficiency of the evaluation of the project by respondent DENR-EMB RVI.

Nature of the project

The first question must be answered by respondent DENR-EMB RVI as the agency with the expertise and authority to state whether this is a new project, subject to the more rigorous environmental impact study requested by petitioner, or it is a mere expansion of the existing jetty port facility.

The second issue refers to the classification of the project by respondent Province, approved by respondent DENR-EMB RVI, as single instead of co-located. Under the Revised Procedural Manual, the "Summary List of Additional Non-Environmentally-Critical Project (NECP) Types in ECAs Classified under Group II" (Table I-2) lists "buildings, storage facilities and other structures" as a separate item from "transport terminal facilities." This creates the question of whether this project should be considered as consisting of more than one type of activity, and should more properly be classified as "co-located," under the following definition from the same Manual, which reads:

f) Group IV (Co-located Projects in either ECA or NECA): A co-located project is a group of single projects, under one or more proponents/locators, which are located in a contiguous area and managed by one administrator, who is also the ECC applicant. The co-located project may be an economic zone or industrial park, or a mix of projects within a catchment, watershed or river basin, or any other geographical, political or economic unit of area. Since the location or threshold of specific projects within the contiguous area will yet be derived from the EIA process based on the carrying capacity of the project environment, the nature of the project is called "programmatic." (Emphasis added.)

Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the project to address the question of whether this could be deemed as a group of single projects (transport terminal facility, building, etc.) in a contiguous area managed by respondent Province, or as a single project.

The third item in the above enumeration will be discussed as a separate issue.

The answer to the fourth question depends on the final classification of the project under items 1 and 3 above because the type of EIA study required under the Revised Procedural Manual depends on such classification.

The very definition of an EIA points to what was most likely neglected by respondent Province as project proponent, and what was in turn overlooked by respondent DENR-EMB RVI, for it is defined as follows:

An [EIA] is a ‘process that involves predicting and evaluating the likely impacts of a project (including cumulative impacts) on the environment during construction, commissioning, operation and abandonment. It also includes designing appropriate preventive, mitigating and enhancement measures addressing these consequences to protect the environment and the community’s welfare.146 (Emphases supplied.)

Thus, the EIA process must have been able to predict the likely impact of the reclamation project to the environment and to prevent any harm that may otherwise be caused.

The project now before us involves reclamation of land that is more than five times the size of the original reclaimed land. Furthermore, the area prior to construction merely contained a jetty port, whereas the proposed expansion, as described in the EPRMP submitted by respondent Province to respondent DENR-EMB RVI involves so much more, and we quote:

The expansion project will be constructed at the north side of the existing jetty port and terminal that will have a total area of 2.64 hectares, more or less, after reclamation. The Phase 1 of the project construction costing around P260 million includes the following:

1. Reclamation - 3,000 sq m (expansion of jetty port)

2. Reclamation - 13,500 sq m (buildable area)

3. Terminal annex building - 250 sq m

4. 2-storey commercial building – 2,500 sq m (1,750 sq m of leasable space)

5. Health and wellness center

6. Access road - 12 m (wide)

7. Parking, perimeter fences, lighting and water treatment sewerage system

8. Rehabilitation of existing jetty port and terminal

x x x x

The succeeding phases of the project will consist of [further] reclamation, completion of the commercial center building, bay walk commercial strip, staff building, ferry terminal, a cable car system and wharf marina. This will entail an additional estimated cost of P785 million bringing the total investment requirement to about P1.0 billion.147 (Emphases added.)

As may be gleaned from the breakdown of the 2.64 hectares as described by respondent Province above, a significant portion of the reclaimed area would be devoted to the construction of a commercial building, and the area to be utilized for the expansion of the jetty port consists of a mere 3,000 square meters (sq. m). To be true to its definition, the EIA report submitted by respondent Province should at the very least predict the impact that the construction of the new buildings on the reclaimed land would have on the surrounding environment. These new constructions and their environmental effects were not covered by the old studies that respondent Province previously submitted for the construction of the original jetty port in 1999, and which it re-submitted in its application for ECC in this alleged expansion, instead of conducting updated and more comprehensive studies.

Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are separated only by a narrow strait. This becomes more imperative because of the significant contributions of Boracay’s white-sand beach to the country’s tourism trade, which requires respondent Province to proceed with utmost caution in implementing projects within its vicinity.

We had occasion to emphasize the duty of local government units to ensure the quality of the environment under Presidential Decree No. 1586 in Republic of the Philippines v. The City of Davao,148 wherein we held:

Section 15 of Republic Act 7160, otherwise known as the Local Government Code, defines a local government unit as a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it performs dual functions, governmental and proprietary. Governmental functions are those that concern the health, safety and the advancement of the public good or welfare as affecting the public generally. Proprietary functions are those that seek to obtain special corporate benefits or earn pecuniary profit and intended for private advantage and benefit. When exercising governmental powers and performing governmental duties, an LGU is an agency of the national government. When engaged in corporate activities, it acts as an agent of the community in the administration of local affairs.

Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the people’s right to a balanced ecology. Pursuant to this, an LGU, like the City of Davao, can not claim exemption from the coverage of PD 1586. As a body politic endowed with governmental functions, an LGU has the duty to ensure the quality of the environment, which is the very same objective of PD 1586.

x x x x

Section 4 of PD 1586 clearly states that "no person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly authorized representative." The Civil Code defines a person as either natural or juridical. The state and its political subdivisions, i.e., the local government units are juridical persons. Undoubtedly therefore, local government units are not excluded from the coverage of PD 1586.

Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the state to achieve a balance between socio-economic development and environmental protection, which are the twin goals of sustainable development. The above-quoted first paragraph of the Whereas clause stresses that this can only be possible if we adopt a comprehensive and integrated environmental protection program where all the sectors of the community are involved, i.e., the government and the private sectors. The local government units, as part of the machinery of the government, cannot therefore be deemed as outside the scope of the EIS system.149 (Emphases supplied.)

The Court chooses to remand these matters to respondent DENR-EMB RVI for it to make a proper study, and if it should find necessary, to require respondent Province to address these environmental issues raised by petitioner and submit the correct EIA report as required by the project’s specifications. The Court requires respondent DENR-EMB RVI to complete its study and submit a report within a non-extendible period of three months. Respondent DENR-EMB RVI should establish to the Court in said report why the ECC it issued for the subject project should not be canceled.

Lack of prior public consultation

The Local Government Code establishes the duties of national government agencies in the maintenance of ecological balance, and requires them to secure prior public consultation and approval of local government units for the projects described therein.

In the case before us, the national agency involved is respondent PRA. Even if the project proponent is the local government of Aklan, it is respondent PRA which authorized the reclamation, being the exclusive agency of the government to undertake reclamation nationwide. Hence, it was necessary for respondent Province to go through respondent PRA and to execute a MOA, wherein respondent PRA’s authority to reclaim was delegated to respondent Province. Respondent DENR-EMB RVI, regional office of the DENR, is also a national government institution which is tasked with the issuance of the ECC that is a prerequisite to projects covered by environmental laws such as the one at bar.

This project can be classified as a national project that affects the environmental and ecological balance of local communities, and is covered by the requirements found in the Local Government Code provisions that are quoted below:

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, rangeland, 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.

Section 27. Prior Consultations Required. - No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 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.

In Lina, Jr. v. Paño,150 we held that Section 27 of the Local Government Code applies only to "national programs and/or projects which are to be implemented in a particular local community"151 and that it should be read in conjunction with Section 26. We held further in this manner:

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.152 (Emphasis added.)

During the oral arguments held on September 13, 2011, it was established that this project as described above falls under Section 26 because the commercial establishments to be built on phase 1, as described in the EPRMP quoted above, could cause pollution as it could generate garbage, sewage, and possible toxic fuel discharge.153

Our ruling in Province of Rizal v. Executive Secretary154 is instructive:

We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas, where we held that there was no statutory requirement for the sangguniang bayan of Puerto Galera to approve the construction of a mooring facility, as Sections 26 and 27 are inapplicable to projects which are not environmentally critical.

Moreover, Section 447, which enumerates the powers, duties and functions of the municipality, grants the sangguniang bayan the power to, among other things, "enact ordinances, approve resolutions and appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section 16 of th(e) Code." These include:

(1) Approving ordinances and passing resolutions to protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing, illegal logging and smuggling of logs, smuggling of natural resources products and of endangered species of flora and fauna, slash and burn farming, and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance; [Section 447 (1)(vi)]

(2) Prescribing reasonable limits and restraints on the use of property within the jurisdiction of the municipality, adopting a comprehensive land use plan for the municipality, reclassifying land within the jurisdiction of the city, subject to the pertinent provisions of this Code, enacting integrated zoning ordinances in consonance with the approved comprehensive land use plan, subject to existing laws, rules and regulations; establishing fire limits or zones, particularly in populous centers; and regulating the construction, repair or modification of buildings within said fire limits or zones in accordance with the provisions of this Code; [Section 447 (2)(vi-ix)]

(3) Approving ordinances which shall ensure the efficient and effective delivery of the basic services and facilities as provided for under Section 17 of this Code, and in addition to said services and facilities, …providing for the establishment, maintenance, protection, and conservation of communal forests and watersheds, tree parks, greenbelts, mangroves, and other similar forest development projects …and, subject to existing laws, establishing and providing for the maintenance, repair and operation of an efficient waterworks system to supply water for the inhabitants and purifying the source of the water supply; regulating the construction, maintenance, repair and use of hydrants, pumps, cisterns and reservoirs; protecting the purity and quantity of the water supply of the municipality and, for this purpose, extending the coverage of appropriate ordinances over all territory within the drainage area of said water supply and within one hundred (100) meters of the reservoir, conduit, canal, aqueduct, pumping station, or watershed used in connection with the water service; and regulating the consumption, use or wastage of water." [Section 447 (5)(i) & (vii)]

Under the Local Government Code, therefore, two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: prior consultation with the affected local communities, and prior approval of the project by the appropriate sanggunian. Absent either of these mandatory requirements, the project’s implementation is illegal.155 (Emphasis added.)

Based on the above, therefore, prior consultations and prior approval are required by law to have been conducted and secured by the respondent Province. Accordingly, the information dissemination conducted months after the ECC had already been issued was insufficient to comply with this requirement under the Local Government Code. Had they been conducted properly, the prior public consultation should have considered the ecological or environmental concerns of the stakeholders and

studied measures alternative to the project, to avoid or minimize adverse environmental impact or damage. In fact, respondent Province once tried to obtain the favorable endorsement of the Sangguniang Bayan of Malay, but this was denied by the latter.

Moreover, DENR DAO 2003-30 provides:

5.3 Public Hearing / Consultation Requirements

For projects under Category A-1, the conduct of public hearing as part of the EIS review is mandatory unless otherwise determined by EMB. For all other undertakings, a public hearing is not mandatory unless specifically required by EMB.

Proponents should initiate public consultations early in order to ensure that environmentally relevant concerns of stakeholders are taken into consideration in the EIA study and the formulation of the management plan. All public consultations and public hearings conducted during the EIA process are to be documented. The public hearing/consultation Process report shall be validated by the EMB/EMB RD and shall constitute part of the records of the EIA process. (Emphasis supplied.)

In essence, the above-quoted rule shows that in cases requiring public consultations, the same should be initiated early so that concerns of stakeholders could be taken into consideration in the EIA study. In this case, respondent Province had already filed its ECC application before it met with the local government units of Malay and Caticlan.

The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08. However, we still find that the LGC requirements of consultation and approval apply in this case. This is

because a Memorandum Circular cannot prevail over the Local Government Code, which is a statute and which enjoys greater weight under our hierarchy of laws.

Subsequent to the information campaign of respondent Province, the Municipality of Malay and the Liga ng mga Barangay-Malay Chapter still opposed the project. Thus, when respondent Province commenced the implementation project, it violated Section 27 of the LGC, which clearly enunciates that "[no] project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2(c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained."

The lack of prior public consultation and approval is not corrected by the subsequent endorsement of the reclamation project by the Sangguniang Barangay of Caticlan on February 13, 2012, and the Sangguniang Bayan of the Municipality of Malay on February 28, 2012, which were both undoubtedly achieved at the urging and insistence of respondent Province. As we have established above, the respective resolutions issued by the LGUs concerned did not render this petition moot and academic.

It is clear that both petitioner and respondent Province are interested in the promotion of tourism in Boracay and the protection of the environment, lest they kill the proverbial hen that lays the golden egg. At the beginning of this decision, we mentioned that there are common goals of national significance that are very apparent from both the petitioner’s and the respondents’ respective pleadings and memoranda.

The parties are evidently in accord in seeking to uphold the mandate found in Article II, Declaration of Principles and State Policies, of the 1987 Constitution, which we quote below:

SECTION 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

x x x x

SECTION 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.

The protection of the environment in accordance with the aforesaid constitutional mandate is the aim, among others, of Presidential Decree No. 1586, "Establishing an Environmental Impact Statement System, Including Other Environmental Management Related Measures and For Other Purposes," which declared in its first Section that it is "the policy of the State to attain and maintain a rational and orderly balance between socio-economic growth and environmental protection."

The parties undoubtedly too agree as to the importance of promoting tourism, pursuant to Section 2 of Republic Act No. 9593, or "The Tourism Act of 2009," which reads:

SECTION 2. Declaration of Policy. – The State declares tourism as an indispensable element of the national economy and an industry of national interest and importance, which must be harnessed as an engine of socioeconomic growth and cultural affirmation to generate investment, foreign exchange and employment, and to continue to mold an enhanced sense of national pride for all Filipinos. (Emphasis ours.)

The primordial role of local government units under the Constitution and the Local Government Code of 1991 in the subject matter of this case is also unquestionable. The Local Government Code of 1991 (Republic Act No. 7160) pertinently provides:

Section 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the national government to the local government units.156 (Emphases ours.)

As shown by the above provisions of our laws and rules, the speedy and smooth resolution of these issues would benefit all the parties. Thus, respondent Province’s cooperation with respondent DENR-EMB RVI in the Court-mandated review of the proper classification and environmental impact of the reclamation project is of utmost importance.

WHEREFORE, premises considered, the petition is hereby PARTIALLY GRANTED.1âwphi1 The TEPO issued by this Court is hereby converted into a writ of continuing mandamus specifically as follows:

1. Respondent Department of Environment and Natural Resources-Environmental Management Bureau Regional Office VI shall revisit and review the following matters:

a. its classification of the reclamation project as a single instead of a co-located project;

b. its approval of respondent Province’s classification of the project as a mere expansion of the existing jetty port in Caticlan, instead of classifying it as a new project; and

c. the impact of the reclamation project to the environment based on new, updated, and comprehensive studies, which should forthwith be ordered by respondent DENR-EMB RVI.

2. Respondent Province of Aklan shall perform the following:

a. fully cooperate with respondent DENR-EMB RVI in its review of the reclamation project proposal and submit to the latter the appropriate report and study; and

b. secure approvals from local government units and hold proper consultations with non-governmental organizations and other stakeholders and sectors concerned as required by Section 27 in relation to Section 26 of the Local Government Code.

3. Respondent Philippine Reclamation Authority shall closely monitor the submission by respondent Province of the requirements to be issued by respondent DENR-EMB RVI in connection to the environmental concerns raised by petitioner, and shall coordinate with respondent Province in modifying the MOA, if necessary, based on the findings of respondent DENR-EMB RVI.

4. The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan, represented by Governor Carlito S. Marquez, The Philippine Reclamation Authority, and The DENR-EMB (Region VI) are mandated to submit their respective reports to this Court

regarding their compliance with the requirements set forth in this Decision no later than three (3) months from the date of promulgation of this Decision.

5. In the meantime, the respondents, their concerned contractor/s, and/or their agents, representatives or persons acting in their place or stead, shall immediately cease and desist from continuing the implementation of the project covered by ECC-R6-1003-096-7100 until further orders from this Court. For this purpose, the respondents shall report within five (5) days to this Court the status of the project as of their receipt of this Decision, copy furnished the petitioner.

This Decision is immediately executory.

SO ORDERED.

G.R. No. 130775 September 27, 2004

THE NATIONAL LIGA NG MGA BARANGAY, represented by ALEX L. DAVID in his capacity as National President and for his own Person, President ALEX L. DAVID, petitioners, vs. HON. VICTORIA ISABEL A. PAREDES, Presiding Judge, Regional Trial Court, Branch 124, Caloocan City, and THE DEPARTMENT OF INTERIOR and LOCAL GOVERNMENT, represented the HON. SECRETARY ROBERT Z. BARBERS and MANUEL A. RAYOS, respondents.

D E C I S I O N

TINGA , J. :

At bottom, the present petition inquires into the essential nature of the Liga ng mga Barangay and questions the extent of the power of Secretary of the Department of Interior and Local Government (DILG), as alter ego of the President. More immediately, the petition disputes the validity of the appointment of the DILG as the interim caretaker of the Liga ng mga Barangay.

On 11 June 1997, private respondent Manuel A. Rayos [as petitioner therein], Punong Barangay of Barangay 52, District II, Zone 5, District II, Caloocan City, filed a petition for prohibition and mandamus, with prayer for a writ of preliminary injunction and/or temporary restraining order and damages before the Regional Trial Court (RTC) of Caloocan,1 alleging that respondent therein Alex L. David [now petitioner], Punong Barangay of Barangay 77, Zone 7, Caloocan City and then president of the Liga Chapter of Caloocan City and of the Liga ng mga Barangay National Chapter, committed certain irregularities in the notice, venue and conduct of the proposed synchronized Liga ng mga Barangay elections in 1997. According to the petition, the irregularities consisted of the following: (1) the publication of the notice in the Manila Bulletin but without notifying in writing the individual punong barangays of Caloocan City;2 (2) the Notice of Meeting dated 08 June 1997 for the Liga Chapter of Caloocan City did not specify whether the meeting scheduled on 14 June 1997 was to be held at 8:00 a.m. or 8:00 p.m., and worse, the meeting was to be held in Lingayen, Pangasinan;3 and (3) the deadline for the filing of the Certificates of Candidacy having been set at 5:00 p.m. of the third "day prior to the above election day", or on 11 June 1997,4 Rayos failed to meet said deadline since he was not able to obtain a certified true copy of the COMELEC Certificate of Canvas and Proclamation of Winning Candidate, which were needed to be a delegate, to vote and be voted for in the Liga election. On 13 June 1997, the Executive Judge issued a temporary restraining order (TRO), effective for seventy-two (72) hours, enjoining the holding of the general membership and election meeting of Liga Chapter of Caloocan City on 14 June 1975.5

However, the TRO was allegedly not properly served on herein petitioner David, and so the election for the officers of the Liga-Caloocan was held as scheduled.6 Petitioner David was proclaimed President of the Liga-Caloocan, and thereafter took his oath and assumed the position of ex-officio member of the Sangguniang Panlungsod of Caloocan.

On 17 July 1997, respondent Rayos filed a second petition, this time for quo warranto, mandamus and prohibition, with prayer for a writ of preliminary injunction and/or temporary restraining order and damages, against David, Nancy Quimpo, Presiding Officer of the Sangguniang Panlungsod of Caloocan City, and Secretary Barbers.7 Rayos alleged that he was elected President of the Liga Caloocan Chapter in the elections held on 14 June 1997 by the members of the Caloocan Chapter pursuant to their Resolution/Petition No. 001-97.8 On 18 July 1997, the presiding judge granted the TRO, enjoining therein respondents David, Quimpo and Secretary Barbers from proceeding with the synchronized elections for the Provincial and Metropolitan Chapters of the Liga scheduled on 19 July 1997, but only for the purpose of maintaining the status quo and effective for a period not exceeding seventy-two (72) hours.9

Eventually, on 18 July 1997, at petitioner David’s instance, Special Civil Action (SCA) No. C-512 pending before Branch 126 was consolidated with SCA No. C-508 pending before Branch 124.10

Before the consolidation of the cases, on 25 July 1997, the DILG through respondent Secretary Barbers, filed in SCA No. C-512 an Urgent Motion,11 invoking the President’s power of general supervision over all local government units and seeking the following reliefs:

WHEREFORE, in the interest of the much-needed delivery of basic services to the people, the maintenance of public order and to further protect the interests of the forty-one thousand barangays all over the country, herein respondent respectfully prays:

a) That the Department of the Interior and Local Government (DILG), pursuant to its delegated power of general supervision, be appointed as the Interim Caretaker to manage and administer the affairs of the Liga, until such time that the new set of National Liga Officers shall have been duly elected and assumed office; ...12

The prayer for injunctive reliefs was anchored on the following grounds: (1) the DILG Secretary exercises the power of general supervision over all government units by virtue of Administrative Order No. 267 dated 18 February 1992; (2) the Liga ng mga Barangay is a government organization; (3) undue interference by some local elective officials during the Municipal and City Chapter elections of the Liga ng mga Barangay; (4) improper issuance of confirmations of the elected Liga Chapter officers by petitioner David and the National Liga Board; (5) the need for the DILG to provide remedies measured in view of the confusion and chaos sweeping the Liga ng mga Barangay and the incapacity of the National Liga Board to address the problems properly.

On 31 July 1997, petitioner David opposed the DILG’s Urgent Motion, claiming that the DILG, being a respondent in the case, is not allowed to seek any sanction against a co-respondent like David, such as by filing a cross-claim, without first seeking leave of court.13 He also alleged that the DILG’s request to be appointed interim caretaker constitutes undue interference in the internal affairs of the Liga, since the Liga is not subject to DILG control and supervision.14

Three (3) days after filing its Urgent Motion, on 28 July 1997, and before it was acted upon by the lower court, the DILG through then Undersecretary Manuel Sanchez, issued Memorandum Circular No. 97-176.15 It cited the reported violations of the Liga ng mga Barangay Constitution and By-Laws by David and "widespread chaos and confusion" among local government officials as to who were the qualified ex-officio Liga members in their respective sangunians.16 Pending the appointment of the DILG "as the Interim Caretaker of the Liga ng mga Barangay by the court and until the officers and board members of the national Liga Chapter have been elected and have assumed office," the Memorandum Circular directed all provincial governors, vice governors, city mayors, city vice mayors, members of the sangguniang panlalawigan and panlungsod, DILG regional directors and other concerned officers, as follows:

1. All concerned are directed not to recognize and/or honor any Liga Presidents of the Provincial and Metropolitan Chapters as ex-officio members of the sanggunian concerned until further notice from the Courts or this Department;

2. All concerned are directed to disregard any pronouncement and/or directive issued by Mr. Alex David on any issue or matter relating to the affairs of the Liga ng mga Barangay until further notice from the Courts or this Department.17

On 04 August 1997, public respondent Judge Victoria Isabel A. Paredes issued the assailed order,18 the pertinent portions of which read, thus:

The authority of the DILG to exercise general supervisory jurisdiction over local government units, including the different leagues created under the Local Government Code of 1991 (RA 7160) finds basis in Administrative Order No. 267 dated February 18, 1992. Specifically,

Section 1 (a) of the said Administrative Order provides a broad premise for the supervisory power of the DILG. Administratively, the DILG’s supervision has been tacitly recognized by the local barangays, municipalities, cities and provinces as shown by the evidences presented by respondent David himself (See Annexes "A" to "C"). The fact that the DILG has sought to refer the matters therein to the National Liga Board/Directorate does not ipso facto mean that it has lost jurisdiction to act directly therein. Jurisdiction is conferred by law and cannot be claimed or lost through agreements or inaction by individuals. What respondent David may term as "interference" should caretakership be allowed, this Court would rather view as a necessary and desirable corollary to the exercise of supervision.19

Political motivations must not preclude, hamper, or obstruct the delivery of basic services and the perquisites of public service. In this case, the fact of confusion arising from conflicting appointments, non-action, and uninformed or wavering decisions of the incumbent National Liga Board/Directorate, having been satisfactorily established, cannot simply be brushed aside as being politically motivated or arising therefrom. It is incumbent, therefore, that the DILG exercise a more active role in the supervision of the affairs and operations of the National Liga Board/ Directorate at least until such time that the regular National Liga Board/Directorate may have been elected, qualified and assumed office.20

xxx

WHEREFORE, premises considered, the Urgent Motion of the DILG for appointment as interim caretaker, until such time that the regularly elected National Liga Board of Directors shall have qualified and assumed office, to manage and administer the affairs of the National Liga Board, is hereby GRANTED.21

On 11 August 1997, petitioner David filed an urgent motion for the reconsideration of the assailed order and to declare respondent Secretary Barbers in contempt of Court.22 David claimed that the 04 August 1997 order divested the duly elected members of the Board of Directors of the Liga National Directorate of their positions without due process of law. He also wanted Secretary Barbers declared in contempt for having issued, through his Undersecretary, Memorandum Circular No. 97-176, even before respondent judge issued the questioned order, in mockery of the justice system. He implied that Secretary Barbers knew about respondent judge’s questioned order even before it was promulgated.23

On 11 August 1997, the DILG issued Memorandum Circular No. 97-193,24 providing supplemental guidelines for the 1997 synchronized elections of the provincial and metropolitan chapters and for the election of the national chapter of the Liga ng mga Barangay. The Memorandum Circular set the synchronized elections for the provincial and metropolitan chapters on 23 August 1997 and for the national chapter on 06 September 1997.

On 12 August 1997, the DILG issued a Certificate of Appointment25 in favor of respondent Rayos as president of the Liga ng mga Barangay of Caloocan City. The appointment purportedly served as Rayos’s "legal basis for ex-officio membership in the Sangguniang Panlungsod of Caloocan City" and "to qualify and participate in the forthcoming National Chapter Election of the Liga ng mga Barangay."26

On 23 August 1997, the DILG conducted the synchronized elections of Provincial and Metropolitan Liga Chapters. Thereafter, on 06 September 1997, the National Liga Chapter held its election of officers and board of directors, wherein James Marty L. Lim was elected as President of the National Liga.27

On 01 October 1997, public respondent judge denied David’s motion for reconsideration,28 ruling that there was no factual or legal basis to reconsider the appointment of the DILG as interim caretaker of the National Liga Board and to cite Secretary Barbers in contempt of court.29

On 10 October 1997, petitioners filed the instant Petition for Certiorari30 under Rule 65 of the Rules of Court, seeking to annul public respondent judge’s orders of 04 August 1997 and 01 October 1997. They dispute the latter’s opinion on the power of supervision of the President under the Constitution, through the DILG over local governments, which is the same as that of the DILG’s as shown by its application of the power on the Liga ng mga Barangay. Specifically, they claim that the public respondent judge’s designation of the DILG as interim caretaker and the acts which the DILG sought to implement pursuant to its designation as such are beyond the scope of the Chief Executive’s power of supervision.

To support the petition, petitioners argue that under Administrative Order No. 267, Series of 1992, the power of general supervision of the President over local government units does not apply to the Liga and its various chapters precisely because the Liga is not a local government unit, contrary to the stance of the respondents.31

Section 507 of the Local Government Code (Republic Act No. 7160)32 provides that the Liga shall be governed by its own Constitution and By-laws. Petitioners posit that the duly elected officers and directors of the National Liga elected in 1994 had a vested right to their positions and could only be removed therefrom for cause by affirmative vote of two-thirds (2/3) of the entire membership pursuant to the Liga Constitution and By-Laws, and not by mere issuances of the DILG, even if bolstered by the dubious authorization of respondent judge.33 Thus, petitioners claim that the questioned order divested the then incumbent officers and directors of the Liga of their right to their respective offices without due process of law.

Assuming the Liga could be subsumed under the term "local governments," over which the President, through the DILG Secretary, has the power of supervision,34 petitioners point out that still there is no legal or constitutional basis for the appointment of the DILG as interim caretaker.35 They stress that the actions contemplated by the DILG as interim caretaker go beyond supervision, as what it had sought and obtained was authority to alter, modify, nullify or set aside the actions of the Liga Board of Directors and even to substitute its judgment over that of the latter — which are all clearly one of control.36 Petitioners question the appointment of Rayos as Liga-Caloocan President since at that time petitioner David was occupying that position which was still the subject of the quo warranto proceedings Rayos himself had instituted.37 Petitioners likewise claim that DILG Memorandum Circular No. 97-193, providing supplemental guidelines for the synchronized elections of the Liga, replaced the implementing rules adopted by the Liga pursuant to its Constitution and By-laws.38 In fact, even before its appointment as interim caretaker, DILG specifically enjoined all heads of government units from recognizing petitioner David and/or honoring any of his pronouncements relating to the Liga.39

Petitioners rely on decision in Taule v. Santos,40 which, they claim, already passed upon the "extent of authority of the then Secretary of Local Government over the katipunan ng mga barangay or the barangay councils," as it specifically ruled that the "Secretary [of Local Government] has no authority to pass upon the validity or regularity of the election of officers of the katipunan."41

For his part, respondent Rayos avers that since the Secretary of the DILG supervises the acts of local officials by ensuring that they act within the scope of their prescribed powers and functions and since members of the various leagues, such as the Liga in this case, are themselves officials of local government units, it follows that the Liga members are subject to the power of supervision of the DILG.42 He adds that as the DILG’s management and administration of the Liga affairs was limited only to the conduct of the elections, its actions were consistent with its rule-making power and power of

supervision under existing laws.43 He asserts that in assailing the appointment of the DILG as interim caretaker, petitioners failed to cite any provision of positive law in support of their stance. Thus, he adds, "if a law is silent, obscure or insufficient, a judge may apply a rule he sees fit to resolve the issue, as long as the rule chosen is in harmony with general interest, order, morals and public policy,"44 in consonance with Article 9 of the Civil Code.45

On the other hand, it is quite significant that the Solicitor General has shared petitioners’ position. He states that the DILG’s act of managing and administering the affairs of the National Liga Board are not merely acts of supervision but plain manifestations of control and direct takeover of the functions of the National Liga Board,46 going beyond the limits of the power of general supervision of the President over local governments.47 Moreover, while the Liga may be deemed a government organization, it is not strictly a local government unit over which the DILG has supervisory power.48

Meanwhile, on 24 September 1998, James Marty L. Lim, the newly elected President of the National Liga, filed a Motion for Leave to File Comment in Intervention,49 with his Comment in Intervention attached,50 invoking the validity of the DILG’s actions relative to the conduct of the Liga elections.51 In addition, he sought the dismissal of the instant petition on the following grounds: (1) the issue of validity or invalidity of the questioned order has been rendered moot and academic by the election of Liga officers; (2) the turn-over of the administration and management of Liga affairs to the Liga officers; and (3) the recognition and acceptance by the members of the Liga nationwide.52

In the interim, another petition, this time for Prohibition with Prayer for a Temporary Restraining Order,53 was filed by several presidents of Liga Chapters, praying that this Court declare the DILG Secretary and Undersecretary are not vested with any constitutional or legal power to exercise control or even supervision over the National Liga ng mga Barangay, nor to take over the functions of its officers or

suspend its constitution; and declare void any and all acts committed by respondents therein in connection with their caretakership of the Liga.54 The petition was consolidated with G.R. No. 130775, but it was eventually dismissed because the petitioners failed to submit an affidavit of service and proof of service of the petition.55

Meanwhile, on 01 December 1998, petitioner David died and was substituted by his legal representatives.56

Petitioners have raised a number of issues.57 Integrated and simplified, these issues boil down to the question of whether or not respondent Judge acted with grave abuse of discretion in appointing the DILG as interim caretaker to administer and manage the affairs of the National Liga Board, per its order dated 04 August 1997.58 In turn, the resolution of the question of grave abuse of discretion entails a couple of definitive issues, namely: (1) whether the Liga ng mga Barangay is a government organization that is subject to the DILG Secretary’s power of supervision over local governments as the alter ego of the President, and (2) whether the respondent Judge’s designation of the DILG as interim caretaker of the Liga has invested the DILG with control over the Liga and whether DILG Memorandum Circular No. 97-176, issued before it was designated as such interim caretaker, and DILG Memorandum Circular No. 97-193 and other acts which the DILG made in its capacity as interim caretaker of the Liga, involve supervision or control of the Liga.

However, the Court should first address the question of mootness which intervenor Lim raised because, according to him, during the pendency of the present petition a general election was held; the new set of officers and directors had assumed their positions; and that supervening events the DILG had turned-over the management and administration of the Liga to new Liga officers and directors.59 Respondent

Rayos has joined him in this regard.60 Forthwith, the Court declares that these supervening events have not rendered the instant petition moot, nor removed it from the jurisdiction of this Court.

This case transcends the elections ordered and conducted by the DILG as interim caretaker of the Liga and the Liga officers and directors who were elected to replace petitioner David and the former officers. At the core of the petition is the validity of the DILG’s "caretakership" of the Liga and the official acts of the DILG as such caretaker which exceeded the bounds of supervision and were exercise of control. At stake in this case is the realization of the constitutionally ensconced principle of local government autonomy;61 the statutory objective to enhance the capabilities of barangays and municipalities "by providing them opportunities to participate actively in the implementation of national programs and projects;"62 and the promotion of the avowed aim to ensure the independence and non-partisanship of the Liga ng mga Barangay. The mantle of local autonomy would be eviscerated and remain an empty buzzword if unconstitutional, illegal and unwarranted intrusions in the affairs of the local governments are tolerated and left unchecked.

Indeed, it is the declared policy of the State that its territorial and political subdivisions should enjoy genuine meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals.63 In the case of De Leon v. Esguerra,64 the Court ruled that even barangays are meant to possess genuine and meaningful local autonomy so that they may develop fully as self-reliant communities.65

Furthermore, well-entrenched is the rule that courts will decide a question otherwise moot and academic if it is "capable of repetition, yet evading review."66 For the question of whether the DILG may validly be appointed as interim caretaker, or assume a similar position and perform acts pursuant

thereto, is likely to resurrect again, and yet the question may not be decided before the actual assumption, or the termination of said assumption even.

So too, dismissing the petition on the ground of mootness could lead to the wrong impression that the challenged order and issuances are valid. Verily, that does not appear to be the correct conclusion to make since by applying opposite precedents to the issues the outcome points to invalidating the assailed order and memorandum circulars.

The resolution of the issues of whether the Liga ng mga Barangay is subject to DILG supervision, and whether the questioned "caretakership" order of the respondent judge and the challenged issuances and acts of the DILG constitute control in derogation of the Constitution, necessitates a brief overview of the barangay, as the lowest LGU, and the Liga, as a vehicle of governance and coordination.

As the basic political unit, the barangay serves as the primary planning and implementing unit of government policies, plans, programs, projects and activities in the community, and as a forum wherein the collective views of the people may be expressed, crystallized and considered, and where disputes may be amicably settled.67

On the other hand, the Liga ng mga Barangay68 is the organization of all barangays, the primary purpose of which is the determination of the representation of the Liga in the sanggunians, and the ventilation, articulation, and crystallization of issues affecting barangay government administration and securing solutions thereto, through proper and legal means.69 The Liga ng mga Barangay shall have chapters at the municipal, city and provincial and metropolitan political subdivision levels.70 The municipal and city chapters of the Liga are composed of the barangay representatives from the municipality or city concerned. The presidents of the municipal and city chapters of the Liga form the provincial or

metropolitan political subdivision chapters of the Liga. The presidents of the chapters of the Liga in highly urbanized cities, provinces and the Metro Manila area and other metropolitan political subdivisions constitute the National Liga ng mga Barangay.71

As conceptualized in the Local Government Code, the barangay is positioned to influence and direct the development of the entire country. This was heralded by the adoption of the bottom-to-top approach process of development which requires the development plans of the barangay to be considered in the development plans of the municipality, city or province,72 whose plans in turn are to be taken into account by the central government73 in its plans for the development of the entire country.74 The Liga is the vehicle assigned to make this new development approach materialize and produce results.

The presidents of the Liga at the municipal, city and provincial levels, automatically become ex-officio members of the Sangguniang Bayan, Sangguniang Panlungsod and Sangguniang Panlalawigan, respectively. They shall serve as such only during their term of office as presidents of the Liga chapters, which in no case shall be beyond the term of office of the sanggunian concerned.75

The Liga ng mga Barangay has one principal aim, namely: to promote the development of barangays and secure the general welfare of their inhabitants.76 In line with this, the Liga is granted the following functions and duties:

a) Give priority to programs designed for the total development of the barangays and in consonance with the policies, programs and projects of the national government;

b) Assist in the education of barangay residents for people’s participation in local government administration in order to promote untied and concerted action to achieve country-wide development goals;

c) Supplement the efforts of government in creating gainful employment within the barangay;

d) Adopt measures to promote the welfare of barangay officials;

e) Serve as forum of the barangays in order to forge linkages with government and non-governmental organizations and thereby promote the social, economic and political well-being of the barangays; and

f) Exercise such other powers and perform such other duties and functions which will bring about stronger ties between barangays and promote the welfare of the barangay inhabitants.77

The Ligas are primarily governed by the provisions of the Local Government Code. However, they are empowered to make their own constitution and by-laws to govern their operations. Sec. 507 of the Code provides:

Sec. 507. Constitution and By-Laws of the Liga and the Leagues. - All other matters not herein otherwise provided for affecting the internal organization of the leagues of local government units shall be governed by their respective constitution and by-laws which are hereby made suppletory to the provision of this Chapter: Provided, That said Constitution and By-laws shall always conform to the provision of the Constitution and existing laws.

Pursuant to the Local Government Code, the Liga ng mga Barangay adopted its own Constitution and By-Laws. It provides that the corporate powers of the Liga, expressed or implied, shall be vested in the board of directors of each level of the Liga which shall:

a) Have jurisdiction over all officers, directors and committees of the said Liga; including the power of appointment, assignment and delegation;

b) Have general management of the business, property, and funds of said Liga;

c) Prepare and approve a budget showing anticipated receipts and expenditures for the year, including the plans or schemes for funding purposes; and

d) Have the power to suspend or remove from office any officer or member of the said board on grounds cited and in the manner provided in hereinunder provisions.78

The National Liga Board of Directors promulgated the rules for the conduct of its Liga’s general elections.79 And, as early as 28 April 1997, the Liga National Chapter had already scheduled its general elections on 14 June 1997.80

The controlling provision on the issues at hand is Section 4, Article X of the Constitution, which reads in part:

Sec. The President of the Philippines shall exercise general supervision over local governments.

The 1935, 1973 and 1987 Constitutions uniformly differentiate the President’s power of supervision over local governments and his power of control of the executive departments bureaus and offices.81 Similar to the counterpart provisions in the earlier Constitutions, the provision in the 1987 Constitution provision has been interpreted to exclude the power of control.82

In the early case of Mondano v. Silvosa, et al.,83 this Court defined supervision as "overseeing, or the power or authority of an officer to see that subordinate officers perform their duties, and to take such action as prescribed by law to compel his subordinates to perform their duties. Control, on the other hand, means 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 that of the latter.84 In Taule v. Santos,85 the Court held that the Constitution permits the President to wield no more authority than that of checking whether a local government or its officers perform their duties as provided by statutory enactments.86 Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body.87

The case of Drilon v. Lim88 clearly defined the extent of supervisory power, thus:

…The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner for the doing of the act. He has no judgment on this matter except to see that the rules are followed…89

In Section 4, Article X of the Constitution applicable to the Liga ng mga Barangay? Otherwise put, is the Liga legally susceptible to DILG suspension?

This question was resolved in Bito-Onon v. Fernandez,90 where the Court ruled that the President’s power of the general supervision, as exercised therein by the DILG Secretary as his alter ego, extends to the Liga ng mga Barangay.

Does the President’s power of general supervision extend to the liga ng mga barangay, which is not a local government unit?

We rule in the affirmative. In Opinion No. 41, Series of 1995, the Department of Justice ruled that the liga ng mga barangay is a government organization, being an association, federation, league or union created by law or by authority of law, whose members are either appointed or elected government officials. The Local Government Code defines the liga ng mga barangay as an organization of all barangays for the primary purpose of determining the representation of the liga in the sanggunians, and for ventilating, articulating and crystallizing issues affecting barangay government administration and securing, through proper and legal means, solutions thereto.91

The rationale for making the Liga subject to DILG supervision is quite evident, whether from the perspectives of logic or of practicality. The Liga is an aggroupment of barangays which are in turn represented therein by their respective punong barangays. The representatives of the Liga sit in an ex officio capacity at the municipal, city and provincial sanggunians. As such, they enjoy all the powers and discharge all the functions of regular municipal councilors, city councilors or provincial board members, as the case may be. Thus, the Liga is the vehicle through which the barangay participates in the enactment of ordinances and formulation of policies at all the legislative local levels higher than the sangguniang barangay, at the same time serving as the mechanism for the bottom-to-top approach of development.

In the case at bar, even before the respondent Judge designated the DILG as interim caretaker of the Liga, on 28 July 1997, it issued Memorandum Circular No. 97-176, directing local government officials not to recognize David as the National Liga President and his pronouncements relating to the affairs of the Liga. Not only was the action premature, it even smacked of superciliousness and injudiciousness. The DILG is the topmost government agency which maintains coordination with, and exercises supervision over local government units and its multi-level leagues. As such, it should be forthright, circumspect and supportive in its dealings with the Ligas especially the Liga ng mga Barangay. The indispensable role played by the latter in the development of the barangays and the promotion of the welfare of the inhabitants thereof deserve no less than the full support and respect of the other agencies of government. As the Court held in the case of San Juan v. Civil Service Commission,92 our national officials should not only comply with the constitutional provisions on local autonomy but should also appreciate the spirit of liberty upon which these provisions are based.93

When the respondent judge eventually appointed the DILG as interim caretaker to manage and administer the affairs of the Liga, she effectively removed the management from the National Liga Board and vested control of the Liga on the DILG. Even a cursory glance at the DILG’s prayer for appointment as interim caretaker of the Liga "to manage and administer the affairs of the Liga, until such time that the new set of National Liga officers shall have been duly elected and assumed office" reveals that what the DILG wanted was to take control over the Liga. Even if said "caretakership" was contemplated to last for a limited time, or only until a new set of officers assume office, the fact remains that it was a conferment of control in derogation of the Constitution.

With his Department already appointed as interim caretaker of the Liga, Secretary Barbers nullified the results of the Liga elections and promulgated DILG Memorandum Circular No. 97-193 dated 11 August 1997, where he laid down the supplemental guidelines for the 1997 synchronized elections of the

provincial and metropolitan chapters and for the election of the national chapter of the Liga ng mga Barangay; scheduled dates for the new provincial, metropolitan and national chapter elections; and appointed respondent Rayos as president of Liga-Caloocan Chapter.

These acts of the DILG went beyond the sphere of general supervision and constituted direct interference with the political affairs, not only of the Liga, but more importantly, of the barangay as an institution. The election of Liga officers is part of the Liga’s internal organization, for which the latter has already provided guidelines. In succession, the DILG assumed stewardship and jurisdiction over the Liga affairs, issued supplemental guidelines for the election, and nullified the effects of the Liga-conducted elections. Clearly, what the DILG wielded was the power of control which even the President does not have.

Furthermore, the DILG assumed control when it appointed respondent Rayos as president of the Liga-Caloocan Chapter prior to the newly scheduled general Liga elections, although petitioner David’s term had not yet expired. The DILG substituted its choice, who was Rayos, over the choice of majority of the punong barangay of Caloocan, who was the incumbent President, petitioner David. The latter was elected and had in fact been sitting as an ex-officio member of the sangguniang panlungsod in accordance with the Liga Constitution and By-Laws. Yet, the DILG extended the appointment to respondent Rayos although it was aware that the position was the subject of a quo warranto proceeding instituted by Rayos himself, thereby preempting the outcome of that case. It was bad enough that the DILG assumed the power of control, it was worse when it made use of the power with evident bias and partiality.

As the entity exercising supervision over the Liga ng mga Barangay, the DILG’s authority over the Liga is limited to seeing to it that the rules are followed, but it cannot lay down such rules itself, nor does it

have the discretion to modify or replace them. In this particular case, the most that the DILG could do was review the acts of the incumbent officers of the Liga in the conduct of the elections to determine if they committed any violation of the Liga’s Constitution and By-laws and its implementing rules. If the National Liga Board and its officers had violated Liga rules, the DILG should have ordered the Liga to conduct another election in accordance with the Liga’s own rules, but not in obeisance to DILG-dictated guidelines. Neither had the DILG the authority to remove the incumbent officers of the Liga and replace them, even temporarily, with unelected Liga officers.

Like the local government units, the Liga ng mga Barangay is not subject to control by the Chief Executive or his alter ego.

In the Bito-Onon94 case, this Court held that DILG Memorandum Circular No. 97-193, insofar as it authorized the filing of a petition for review of the decision of the Board of Election Supervisors (BES) with the regular courts in a post-proclamation electoral protest, involved the exercise of control as it in effect amended the guidelines already promulgated by the Liga. The decision reads in part:

xxx. Officers in control, lay down the rules in the doing of an act. If they are not followed, it is discretionary on his part to order the act undone or redone by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. Supervising officers merely see to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done to conform for to the prescribed rules. He cannot prescribe his own manner the doing of the act.

x x x

xxx. The amendment of the GUIDELINES is more than an exercise of the power of supervision but is an exercise of the power of control, which the President does not have over the LIGA. Although the DILG is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely "monitoring compliance by local government units of such issuances. To monitor means to "watch, observe or check" and is compatible with the power of supervision of the DILG Secretary over local governments, which is limited to checking whether the local government unit concerned or the officers thereof perform their duties as per statutory enactments. Besides, any doubt as to the power of the DILG Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government.95

In Taule,96 the Court ruled that the Secretary of Local Government had no authority to pass upon the validity or regularity of the election of officers of katipunan ng mga barangay or barangay councils. In that case, a protest was lodged before the Secretary of Local Government regarding several irregularities in, and seeking the nullification of, the election of officers of the Federation of Associations of Barangay Councils (FABC) of Catanduanes. Then Local Government Secretary Luis Santos issued a resolution nullifying the election of officers and ordered a new one to be conducted. The Court ruled:

Construing the constitutional limitation on the power of general supervision of the President over local governments, We hold that respondent Secretary has no authority to pass upon the validity or regularity of the officers of the katipunan. To allow respondent Secretary to do so will give him more power than the law or the Constitution grants. It will in effect give him control over local government officials for it will permit him to interfere in a purely democratic and non-partisan activity aimed at strengthening the barangay as the basic component of local governments so that the ultimate goal of fullest autonomy may be

achieved. In fact, his order that the new elections to be conducted be presided by the Regional Director is a clear and direct interference by the Department with the political affairs of the barangays which is not permitted by the limitation of presidential power to general supervision over local governments.97

All given, the Court is convinced that the assailed order was issued with grave abuse of discretion while the acts of the respondent Secretary, including DILG Memorandum Circulars No. 97-176 and No. 97-193, are unconstitutional and ultra vires, as they all entailed the conferment or exercise of control — a power which is denied by the Constitution even to the President.

WHEREFORE, the Petition is GRANTED. The Order of the Regional Trial Court dated 04 August 1997 is SET ASIDE for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

DILG Memorandum Circulars No. 97-176 and No. 97-193, are declared VOID for being unconstitutional and ultra vires.

No pronouncements as to costs.

SO ORDERED.

G.R. No. 175368 April 11, 2013

LEAGUE OF PROVINCES OF THE PHILIPPINES, Petitioner, vs. DEPARTMENT OF ENVIRONMENT and NATURAL RESOURCES and HON. ANGELO T. REYES, in his capacity as Secretary of DENR, Respondents.

D E C I S I O N

PERALTA, J.:

This is a petition for certiorari, prohibition and mandamus,1 praying that this Court order the following: ( 1) declare as unconstitutional Section 17(b)(3)(iii) of Republic Act (R.A.) No. 7160, otherwise known as The Local Government Code of 1991 and Section 24 of Republic Act (R.A.) No. 7076, otherwise known as the People's Small-Scale Mining Act of 1991; (2) prohibit and bar respondents from exercising control over

provinces; and (3) declare as illegal the respondent Secretary of the Department of Energy and Natural Resources' (DENR) nullification, voiding and cancellation of the Small-Scale Mining permits issued by the Provincial Governor of Bulacan.

The Facts are as follows:

On March 28, 1996, Golden Falcon Mineral Exploration Corporation (Golden Falcon) filed with the DENR Mines and Geosciences Bureau Regional Office No. III (MGB R-III) an Application for Financial and Technical Assistance Agreement (FTAA) covering an area of 61,136 hectares situated in the Municipalities of San Miguel, San Ildefonso, Norzagaray and San Jose del Monte, Bulacan.2

On April 29, 1998, the MGB R-III issued an Order denying Golden Falcon's Application for Financial and Technical Assistance Agreement for failure to secure area clearances from the Forest Management Sector and Lands Management Sector of the DENR Regional Office No. III.3

On November 11, 1998, Golden Falcon filed an appeal with the DENR Mines and Geosciences Bureau Central Office (MGB-Central Office), and sought reconsideration of the Order dated April 29, 1998.4

On February 10, 2004, while Golden Falcon's appeal was pending, Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Liberato Sembrano filed with the Provincial Environment and Natural Resources Office (PENRO) of Bulacan their respective Applications for Quarry Permit (AQP), which covered the same area subject of Golden Falcon's Application for Financial and Technical Assistance Agreement.5

On July 16, 2004, the MGB-Central Office issued an Order denying Golden Falcon's appeal and affirming the MGB R-III's Order dated April 29, 1998.

On September 13, 2004, Atlantic Mines and Trading Corporation (AMTC) filed with the PENRO of Bulacan an Application for Exploration Permit (AEP) covering 5,281 hectares of the area covered by Golden Falcon's Application for Financial and Technical Assistance Agreement.6

On October 19, 2004, DENR-MGB Director Horacio C. Ramos, in response to MGB R-III Director Arnulfo V. Cabantog's memorandum query dated September 8, 2004, categorically stated that the MGB-Central Office's Order dated July 16, 2004 became final on August 11, 2004, fifteen (15) days after Golden Falcon received the said Order, per the Certification dated October 8, 2004 issued by the Postmaster II of the Philippine Postal Corporation of Cainta, Rizal.7

Through letters dated May 5 and May 10, 2005, AMTC notified the PENRO of Bulacan and the MGB R-III Director, respectively, that the subject Applications for Quarry Permit fell within its (AMTC's) existing valid and prior Application for Exploration Permit, and the the former area of Golden Falcon was open to mining location only on August 11, 2004 per the Memorandum dated October 19, 2004 of the MGB Director, Central Office.8

On June 24, 2005, Ricardo Medina, Jr., PENRO of Bulacan, indorsed AMTC's letter to the Provincial Legal Officer, Atty. Eugenio F. Resurreccion, for his legal opinion on which date of denial of Golden Falcon's application/appeal – April 29, 1998 or July 16, 2004 − is to be considered in the deliberation of the Provincial Mining Regulatory Board (PMRB) for the purpose of determining when the land subject of the Applications for Quarry Permit could be considered open for application.

On June 28, 2005, Provincial Legal Officer Eugenio Resurreccion issued a legal opinion stating that the Order dated July 16, 2004 of the MGB-Central Office was a mere reaffirmation of the Order dated April

29, 1998 of the MGB R-III; hence, the Order dated April 29, 1998 should be the reckoning period of the denial of the application of Golden Falcon.

On July 22, 2005, AMTC filed with the PMRB of Bulacan a formal protest against the aforesaid Applications for Quarry Permit on the ground that the subject area was already covered by its Application for Exploration Permit.9

On August 8, 2005, MGB R-III Director Cabantog, who was the concurrent Chairman of the PMRB, endorsed to the Provincial Governor of Bulacan, Governor Josefina M. dela Cruz, the aforesaid Applications for Quarry Permit that had apparently been converted to Applications for Small-Scale Mining Permit of Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Lucila S. Valdez (formerly Liberato Sembrano).10

On August 9, 2005, the PENRO of Bulacan issued four memoranda recommending to Governor Dela Cruz the approval of the aforesaid Applications for Small-Scale Mining Permit.11

On August 10, 2005, Governor Dela Cruz issued the corresponding Small-Scale Mining Permits in favor of Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Lucila S. Valdez.12

Subsequently, AMTC appealed to respondent DENR Secretary the grant of the aforesaid Small-Scale Mining Permits, arguing that: (1) The PMRB of Bulacan erred in giving due course to the Applications for Small-Scale Mining Permit without first resolving its formal protest; (2) The areas covered by the Small-Scale Mining Permits fall within the area covered by AMTC's valid prior Application for Exploration Permit; (3) The Applications for Quarry Permit were illegally converted to Applications for Small-Scale Mining Permit; (4) DENR-MGB Director Horacio C. Ramos' ruling that the subject areas became open for

mining location only on August 11, 2004 was controlling; (5) The Small-Scale Mining Permits were null and void because they covered areas that were never declared People's Small-Scale Mining Program sites as mandated by Section 4 of the People's Small-Scale Mining Act of 1991; and (6) Iron ore is not considered as one of the quarry resources, as defined by Section 43 of the Philippine Mining Act of 1995, which could be subjects of an Application for Quarry Permit.13

On August 8, 2006, respondent DENR Secretary rendered a Decision14 in favor of AMTC. The DENR Secretary agreed with MGB Director Horacio C. Ramos that the area was open to mining location only on August 11, 2004, fifteen (15) days after the receipt by Golden Falcon on July 27, 2004 of a copy of the MGB-Central Office's Order dated July 16, 2004, which Order denied Golden Falcon's appeal. According to the DENR Secretary, the filing by Golden Falcon of the letter-appeal suspended the finality of the Order of denial issued on April 29, 1998 by the Regional Director until the resolution of the appeal on July 16, 2004 by the MGB-Central Office. He stated that the Applications for Quarry Permit were filed on February 10, 2004 when the area was still closed to mining location; hence, the Small-Scale Mining Permits granted by the PMRB and the Governor were null and void. On the other hand, the DENR Secretary declared that AMTC filed its Application for Exploration Permit when the area was already open to other mining applicants; thus, AMTC’s Application for Exploration Permit was valid. Moreover, the DENR Secretary held that the questioned Small-Scale Mining Permits were issued in violation of Section 4 of R.A. No. 7076 and beyond the authority of the Provincial Governor pursuant to Section 43 of R.A. No. 7942, because the area was never proclaimed to be under the People's Small-Scale Mining Program. Further, the DENR Secretary stated that iron ore mineral is not considered among the quarry resources.

The dispositive portion of the DENR Secretary’s Decision reads:

WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of Atlantic Mines and Trading Corp. is declared valid and may now be given due course. The Small-Scale Mining Permits, SSMP-B-002-05 of Gerardo Cruz, SSMP-B-003-05 of Eduardo D. Mercado, SSMP-B-004-05 of Benedicto S. Cruz and SSMP-B-005-05 of Lucila S. Valdez are declared NULL AND VOID. Consequently, the said permits are hereby CANCELLED.15

Hence, petitioner League of Provinces filed this petition.

Petitioner is a duly organized league of local governments incorporated under R.A. No. 7160. Petitioner declares that it is composed of 81 provincial governments, including the Province of Bulacan. It states that this is not an action of one province alone, but the collective action of all provinces through the League, as a favorable ruling will not only benefit one province, but all provinces and all local governments.

Petitioner raises these issues:

I

WHETHER OR NOT SECTION 17(B)(3)(III) OF THE, 1991 LOCAL GOVERNMENT CODE AND SECTION 24 OF THE PEOPLE'S SMALL-SCALE MINING ACT OF 1991 ARE UNCONSTITUTIONAL FOR PROVIDING FOR EXECUTIVE CONTROL AND INFRINGING UPON THE LOCAL AUTONOMY OF PROVINCES.

II

WHETHER OR NOT THE ACT OF RESPONDENT [DENR] IN NULLIFYING, VOIDING AND CANCELLING THE SMALL-SCALE MINING PERMITS AMOUNTS TO EXECUTIVE CONTROL, NOT MERELY SUPERVISION AND USURPS THE DEVOLVED POWERS OF ALL PROVINCES.16

To start, the Court finds that petitioner has legal standing to file this petition because it is tasked under Section 504 of the Local Government Code of 1991 to promote local autonomy at the provincial level;17 adopt measures for the promotion of the welfare of all provinces and its officials and employees;18 and exercise such other powers and perform such other duties and functions as the league may prescribe for the welfare of the provinces.19

Before this Court determines the validity of an act of a co-equal and coordinate branch of the Government, it bears emphasis that ingrained in our jurisprudence is the time-honored principle that a statute is presumed to be valid.20 This presumption is rooted in the doctrine of separation of powers which enjoins upon the three coordinate departments of the Government a becoming courtesy for each other's acts.21 This Court, however, may declare a law, or portions thereof, unconstitutional where a petitioner has shown a clear and unequivocal breach of the Constitution,22 leaving no doubt or hesitation in the mind of the Court.23

In this case, petitioner admits that respondent DENR Secretary had the authority to nullify the Small-Scale Mining Permits issued by the Provincial Governor of Bulacan, as the DENR Secretary has control over the PMRB, and the implementation of the Small-Scale Mining Program is subject to control by respondent DENR.

Control of the DENR/DENR Secretary over small-scale mining in the provinces is granted by three statutes: (1) R.A. No. 7061 or The Local Government Code of 1991; (2) R.A. No. 7076 or the People's

Small Scale Mining Act of 1991; and (3) R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995.24 The pertinent provisions of law sought to be declared as unconstitutional by petitioner are as follows:

R.A. No. 7061 (The Local Government Code of 1991)

SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government units shall likewise exercise such other powers and discharge such other functions and responsibilities as are necessary, appropriate, or incidental to efficient and effective provision of the basic services and facilities enumerated herein.

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

x x x x

(3) For a Province:c

x x x x

(iii) Pursuant to national policies and subject to supervision, control and review of the DENR, enforcement of forestry laws limited to community-based forestry projects, pollution control law, small-scale mining law, and other laws on the protection of the environment; and mini-hydro electric projects for local purposes; x x x25

R.A. No. 7076 (People's Small-Scale Mining Act of 1991)

Sec. 24. Provincial/City Mining Regulatory Board. - There is hereby created under the direct supervision and control of the Secretary a provincial/city mining regulatory board, herein called the Board, which shall be the implementing agency of the Department, and shall exercise the following powers and functions, subject to review by the Secretary:

(a) Declare and segregate existing gold-rush areas for small-scale mining;

(b) Reserve future gold and other mining areas for small-scale mining;

(c) Award contracts to small-scale miners;

(d) Formulate and implement rules and regulations related to small-scale mining;

(e) Settle disputes, conflicts or litigations over conflicting claims within a people’s small-scale mining area, an area that is declared a small-mining; and

(f) Perform such other functions as may be necessary to achieve the goals and objectives of this Act.26

Petitioner contends that the aforecited laws and DENR Administrative Order No. 9640 (the Implementing Rules and Regulations of the Philippine Mining Act of 1995) did not explicitly confer upon respondents DENR and the DENR Secretary the power to reverse, abrogate, nullify, void, or cancel the permits issued by the Provincial Governor or small-scale mining contracts entered into by the PMRB. The

statutes are also silent as to the power of respondent DENR Secretary to substitute his own judgment over that of the Provincial Governor and the PMRB.

Moreover, petitioner contends that Section 17 (b)(3)(iii) of the Local Government Code of 1991 and Section 24 of R.A. No. 7076, which confer upon respondents DENR and the DENR Secretary the power of control are unconstitutional, as the Constitution states that the President (and Executive Departments and her alter-egos) has the power of supervision only, not control, over acts of the local government units, and grants the local government units autonomy, thus:

The 1987 Constitution:

Article X, Section 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.27

Petitioner contends that the policy in the above-cited constitutional provision is mirrored in the Local Government Code, which states:

SEC. 25. National Supervision over Local Government Units. - (a) Consistent with the basic policy on local autonomy, the President shall exercise general supervision over local government units to ensure that their acts are within the scope of their prescribed powers and functions.

The President shall exercise supervisory authority directly over provinces, highly urbanized cities, and independent component cities; through the province with respect to component cities and municipalities; and through the city and municipality with respect to barangays.28

Petitioner contends that the foregoing provisions of the Constitution and the Local Government Code of 1991 show that the relationship between the President and the Provinces or respondent DENR, as the alter ego of the President, and the Province of Bulacan is one of executive supervision, not one of executive control. The term "control" has been defined as the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his/her duties and to substitute the judgment of the former for the latter, while the term "supervision" is the power of a superior officer to see to it that lower officers perform their function in accordance with law.29

Petitioner argues that respondent DENR Secretary went beyond mere executive supervision and exercised control when he nullified the small-scale mining permits granted by the Provincial Governor of Bulacan, as the former substituted the judgment of the latter.

Petitioner asserts that what is involved here is a devolved power.

Under the Local Government Code of 1991, the power to regulate small-scale mining has been devolved to all provinces. In the exercise of devolved powers, departmental approval is not necessary.30

Petitioner contends that if the provisions in Section 24 of R.A. No. 7076 and Section 17 (b)(3)(iii) of the Local Government Code of 1991 granting the power of control to the DENR/DENR Secretary are not nullified, nothing would stop the DENR Secretary from nullifying, voiding and canceling the small-scale mining permits that have been issued by a Provincial Governor.

Petitioner submits that the statutory grant of power of control to respondents is unconstitutional, as the Constitution only allows supervision over local governments and proscribes control by the executive departments.

In its Comment, respondents, represented by the Office of the Solicitor General, stated that contrary to the assertion of petitioner, the power to implement the small-scale mining law is expressly limited in Section 17 (b)(3)(iii) of the Local Government Code, which provides that it must be carried out "pursuant to national policies and subject to supervision, control and review of the DENR." Moreover, the fact that the power to implement the small-scale mining law has not been fully devolved to provinces is further amplified by Section 4 of the People's Small-Scale Mining Act of 1991, which provides, among others, that the People's Small-Scale Mining Program shall be implemented by the DENR Secretary.

The petition lacks merit.

Paragraph 1 of Section 2, Article XII (National Economy and Patrimony) of the Constitution31 provides that "the exploration, development and utilization of natural resources shall be under the full control and supervision of the State."

Moreover, paragraph 3 of Section 2, Article XII of the Constitution provides that "the Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens x x x."

Pursuant to Section 2, Article XII of the Constitution, R.A. No. 7076 or the People's Small-Scale Mining Act of 1991, was enacted, establishing under Section 4 thereof a People's Small-Scale Mining Program to be implemented by the DENR Secretary in coordination with other concerned government agencies.

The People's Small-Scale Mining Act of 1991 defines "small-scale mining" as "refer[ring] to mining activities, which rely heavily on manual labor using simple implement and methods and do not use explosives or heavy mining equipment."32

It should be pointed out that the Administrative Code of 198733 provides that the DENR is, subject to law and higher authority, in charge of carrying out the State's constitutional mandate, under Section 2, Article XII of the Constitution, to control and supervise the exploration, development, utilization and conservation of the country's natural resources. Hence, the enforcement of small-scale mining law in the provinces is made subject to the supervision, control and review of the DENR under the Local Government Code of 1991, while the People’s Small-Scale Mining Act of 1991 provides that the People’s Small-Scale Mining Program is to be implemented by the DENR Secretary in coordination with other concerned local government agencies.

Indeed, Section 4, Article X (Local Government) of the Constitution states that "[t]he President of the Philippines shall exercise general supervision over local governments," and Section 25 of the Local Government Code reiterates the same. General supervision by the President means no more than seeing to it that laws are faithfully executed or that subordinate officers act within the law.34

The Court has clarified that the constitutional guarantee of local autonomy in the Constitution Art. X, Sec. 2 refers to the administrative autonomy of local government units or, cast in more technical language, the decentralization of government authority.35 It does not make local governments sovereign within the State.36 Administrative autonomy may involve devolution of powers, but subject to limitations like following national policies or standards,37 and those provided by the Local Government Code, as the structuring of local governments and the allocation of powers, responsibilities, and resources among the different local government units and local officials have been placed by the Constitution in the hands of Congress38 under Section 3, Article X of the Constitution.

Section 3, Article X of the Constitution mandated Congress to "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."

In connection with the enforcement of the small-scale mining law in the province, Section 17 of the Local Government Code provides:

SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government units shall likewise exercise such other powers and discharge such other functions and responsibilities as are necessary, appropriate, or incidental to efficient and effective provision of the basic services and facilities enumerated herein.

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

x x x x

(3) For a Province:c

x x x x

(iii) Pursuant to national policies and subject to supervision, control and review of the DENR, enforcement of forestry laws limited to community-based forestry projects, pollution control law, small-

scale mining law, and other laws on the protection of the environment; and mini-hydro electric projects for local purposes;39

Clearly, the Local Government Code did not fully devolve the enforcement of the small-scale mining law to the provincial government, as its enforcement is subject to the supervision, control and review of the DENR, which is in charge, subject to law and higher authority, of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization of the country's natural resources.40

Section 17 (b)(3)(iii) of the Local Government Code of 1991 is in harmony with R.A. No. 7076 or the People's Small-Scale Mining Act of 1991,41 which established a People's Small-Scale Mining Program to be implemented by the Secretary of the DENR, thus:

Sec. 2. Declaration of Policy. – It is hereby declared of the State to promote, develop, protect and rationalize viable small-scale mining activities in order to generate more employment opportunities and provide an equitable sharing of the nation's wealth and natural resources, giving due regard to existing rights as herein provided.

x x x x

Sec. 4. People's Small-Scale Mining Program. - For the purpose of carrying out the declared policy provided in Section 2 hereof, there is hereby established a People's Small-Scale Mining Program to be implemented by the Secretary of the Department of Environment and Natural Resources, hereinafter called the Department, in coordination with other concerned government agencies, designed to achieve an orderly, systematic and rational scheme for the small-scale development and utilization of

mineral resources in certain mineral areas in order to address the social, economic, technical, and environmental problems connected with small-scale mining activities.

x x x x

Sec. 24. Provincial/City Mining Regulatory Board. – There is hereby created under the direct supervision and control of the Secretary a provincial/city mining regulatory board, herein called the Board, which shall be the implementing agency of the Department, and shall exercise the following powers and functions, subject to review by the Secretary:

(a) Declare and segregate existing gold-rush areas for small-scale mining;

(b) Reserve future gold and other mining areas for small-scale mining;

(c) Award contracts to small-scale miners;

(d) Formulate and implement rules and regulations related to small-scale mining;

(e) Settle disputes, conflicts or litigations over conflicting claims within a people’s small-scale mining area, an area that is declared a small-mining; and

(f) Perform such other functions as may be necessary to achieve the goals and objectives of this Act.42

DENR Administrative Order No. 34, series of 1992, containing the Rules and Regulations to implement R.A. No. 7076, provides:

SEC. 21. Administrative Supervision over the People's Small-Scale Mining Program. − The following DENR officials shall exercise the following supervisory functions in the implementation of the Program:

21.1 DENR Secretrary – direct supervision and control over the program and activities of the small-scale miners within the people's small-scale mining area;

21.2 Director − the Director shall:

a. Recommend the depth or length of the tunnel or adit taking into account the: (1) size of membership and capitalization of the cooperative; (2) size of mineralized areas; (3) quantity of mineral deposits; (4) safety of miners; and (5) environmental impact and other considerations;

b. Determine the right of small-scale miners to existing facilities in consultation with the operator, claimowner, landowner or lessor of an affected area upon declaration of a small-scale mining area;

c. Recommend to the Secretary the withdrawal of the status of the people's small-scale mining area when it can no longer be feasibly operated on a small-scale basis; and

d. See to it that the small-scale mining contractors abide by small-scale mines safety rules and regulations.

x x x x

SEC. 22. Provincial/City Mining Regulatory Board. − The Provincial/City Mining Regulatory Board created under R.A. 7076 shall exercise the following powers and functions, subject to review by the Secretary:

22.1 Declares and segregates existing gold rush area for small-scale mining;

22.2 Reserves for the future, mineralized areas/mineral lands for people's small-scale mining;

22.3 Awards contracts to small-scale miners’ cooperative;

22.4 Formulates and implements rules and regulations related to R.A. 7076;

22.5 Settles disputes, conflicts or litigations over conflicting claims within ninety (90) days upon filing of protests or complaints; Provided, That any aggrieved party may appeal within five (5) days from the Board's decision to the Secretary for final resolution otherwise the same is considered final and executory; and

22.6 Performs such other functions as may be necessary to achieve the goals and objectives of R.A. 7076.

SEC. 6. Declaration of People's Small-Scale Mining Areas. – The Board created under R.A. 7076 shall have the authority to declare and set aside People's Small-Scale Mining Areas in sites onshore suitable for small-scale mining operations subject to review by the DENR Secretary thru the Director.43

DENR Administrative Order No. 23, otherwise known as the Implementing Rules and Regulations of R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995, adopted on August 15, 1995, provides under Section 12344 thereof that small-scale mining applications should be filed with the PMRB45 and the corresponding permits shall be issued by the Provincial Governor, except small-scale mining applications within the mineral reservations.

Thereafter, DENR Administrative Order No. 96-40, otherwise known as the Revised Implementing Rules and Regulations of R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995, adopted on December 19, 1996, provides that applications for Small-Scale Mining Permits shall be filed with the Provincial Governor/City Mayor through the concerned Provincial/City Mining Regulatory Board for areas outside the Mineral Reservations and with the Director though the Bureau for areas within the Mineral Reservations.46 Moreover, it provides that Local Government Units shall, in coordination with the Bureau/ Regional Offices and subject to valid and existing mining rights, "approve applications for small-scale mining, sand and gravel, quarry x x x and gravel permits not exceeding five (5) hectares."47

Petitioner contends that the Local Government Code of 1991, R.A. No. 7076, DENR Administrative Orders Nos. 95-23 and 96-40 granted the DENR Secretary the broad statutory power of control, but did not confer upon the respondents DENR and DENR Secretary the power to reverse, abrogate, nullify, void, cancel the permits issued by the Provincial Governor or small-scale mining contracts entered into by the Board.

The contention does not persuade.

The settlement of disputes over conflicting claims in small-scale mining is provided for in Section 24 of R.A. No. 7076, thus:

Sec. 24. Provincial/City Mining Regulatory Board. − There is hereby created under the direct supervision and control of the Secretary a provincial/city mining regulatory board, herein called the Board, which shall be the implementing agency of the Department, and shall exercise the following powers and functions, subject to review by the Secretary:

x x x x

(e) Settle disputes, conflicts or litigations over conflicting claims within a people's small-scale mining area, an area that is declared a small mining area; x x x

Section 24, paragraph (e) of R.A. No. 7076 cited above is reflected in Section 22, paragraph 22.5 of the Implementing Rules and Regulations of R.A. No. 7076, to wit:

SEC. 22. Provincial/City Mining Regulatory Board. – The Provincial/City Mining Regulatory Board created under R.A. No. 7076 shall exercise the following powers and functions, subject to review by the Secretary:

x x x x

22.5 Settles disputes, conflicts or litigations over conflicting claims within ninety (90) days upon filing of protests or complaints; Provided, That any aggrieved party may appeal within five (5) days from the Board's decision to the Secretary for final resolution otherwise the same is considered final and executory; x x x

In this case, in accordance with Section 22, paragraph 22.5 of the Implementing Rules and Regulations of R.A. No. 7076, the AMTC filed on July 22, 2005 with the PMRB of Bulacan a formal protest against the

Applications for Quarry Permits of Eduardo Mercado, Benedicto Cruz, Liberato Sembrano (replaced by Lucila Valdez) and Gerardo Cruz on the ground that the subject area was already covered by its Application for Exploration Permit.48 However, on August 8, 2005, the PMRB issued Resolution Nos. 05-8, 05-9, 05-10 and 05-11, resolving to submit to the Provincial Governor of Bulacan the Applications for Small-Scale Mining Permits of Eduardo Mercado, Benedicto Cruz, Lucila Valdez and Gerardo Cruz for the granting/issuance of the said permits.49 On August 10, 2005, the Provincial Governor of Bulacan issued the Small-Scale Mining Permits to Eduardo Mercado, Benedicto Cruz, Lucila Valdez and Gerardo Cruz based on the legal opinion of the Provincial Legal Officer and the Resolutions of the PMRB of Bulacan.

Hence, AMTC filed an appeal with respondent DENR Secretary, appealing from Letter-Resolution No. 05-1317 and Resolution Nos. 05-08, 05-09, 05-10 and 05-11, all dated August 8, 2005, of the PMRB of Bulacan, which resolutions gave due course and granted, on August 10, 2005, Small-Scale Mining Permits to Eduardo D. Mercado, Benedicto S. Cruz, Lucila Valdez and Gerardo Cruz involving parcels of mineral land situated at Camachin, Doña Remedios Trinidad, Bulacan.

The PMRB of Bulacan filed its Answer, stating that it is an administrative body, created under R.A. No. 7076, which cannot be equated with the court wherein a full-blown hearing could be conducted, but it is enough that the parties were given the opportunity to present evidence. It asserted that the questioned resolutions it issued were in accordance with the mining laws and that the Small-Scale Mining Permits granted were registered ahead of AMTC's Application for Exploration Permit. Further, the Board stated that the Governor of Bulacan had the power to approve the Small-Scale Mining Permits under R.A. No. 7160.

The DENR Secretary found the appeal meritorious, and resolved these pivotal issues: (1) when is the subject mining area open for mining location by other applicants; and (2) who among the applicants have valid applications.1âwphi1 The pertinent portion of the decision of the DENR Secretary reads:

We agree with the ruling of the MGB Director that the area is open only to mining location on August 11, 2004, fifteen (15) days after the receipt by Golden Falcon on July 27, 2004 of a copy of the subject Order of July 16, 2004.1âwphi1 The filing by Golden Falcon of the letter-appeal suspended the finality of the Order of Denial issued on April 29, 1998 by the Regional Director until the Resolution thereof on July 16, 2004.

Although the subject AQPs/SSMPs were processed in accordance with the procedures of the PMRB, however, the AQPs were filed on February 10, 2004 when the area is still closed to mining location. Consequently, the SSMPs granted by the PMRB and the Governor are null and void making thereby AEP No. III-02-04 of the AMTC valid, it having been filed when the area is already open to other mining applicants.

Records also show that the AQPs were converted into SSMPs. These are two (2) different applications. The questioned SSMPs were issued in violation of Section 4 of RA 7076 and beyond the authority of the Provincial Governor pursuant to Section 43 of RA 7942 because the area was never proclaimed as "People's Small-Scale Mining Program." Moreover, iron ore mineral is not considered among the quarry resources.

x x x x

WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of Atlantic Mines and Trading Corp. is declared valid and may now be given due course. The Small-Scale Mining Permits, SSMP-B-002-05 of Gerardo Cruz, SSMP-B-003-05 of Eduardo D. Mercado, SSMP-B-004-05 of Benedicto S. Cruz and SSMP-B-005-05 of Lucila S. Valdez are declared NULL AND VOID. Consequently, the said permits are hereby CANCELLED.50

The Court finds that the decision of the DENR Secretary was rendered in accordance with the power of review granted to the DENR Secretary in the resolution of disputes, which is provided for in Section 24 of R.A. No. 707651 and Section 22 of its Implementing Rules and Regulations.52 It is noted that although AMTC filed a protest with the PMRB regarding its superior and prior Application for Exploration Permit over the Applications for Quarry Permit, which were converted to Small-Scale Mining Permits, the PMRB did not resolve the same, but issued Resolution Nos. 05-08 to 05-11 on August 8, 2005, resolving to submit to the Provincial Governor of Bulacan the Applications for Small-Scale Mining Permits of Eduardo Mercado, Benedicto Cruz, Lucila Valdez and Gerardo Cruz for the granting of the said permits. After the Provincial Governor of Bulacan issued the Small-Scale Mining Permits on August 10, 2005, AMTC appealed the Resolutions of the PMRB giving due course to the granting of the Small-Scale Mining Permits by the Provincial Governor.

Hence, the decision of the DENR Secretary, declaring that the Application for Exploration Permit of AMTC was valid and may be given due course, and canceling the Small-Scale Mining Permits issued by the Provincial Governor, emanated from the power of review granted to the DENR Secretary under R.A. No. 7076 and its Implementing Rules and Regulations. The DENR Secretary's power to review and, therefore, decide, in this case, the issue on the validity of the issuance of the Small-Scale Mining Permits by the Provincial Governor as recommended by the PMRB, is a quasi-judicial function, which involves the determination of what the law is, and what the legal rights of the contending parties are, with respect to

the matter in controversy and, on the basis thereof and the facts obtaining, the adjudication of their respective rights.53 The DENR Secretary exercises quasi-judicial function under R.A. No. 7076 and its Implementing Rules and Regulations to the extent necessary in settling disputes, conflicts or litigations over conflicting claims. This quasi-judicial function of the DENR Secretary can neither be equated with "substitution of judgment" of the Provincial Governor in issuing Small-Scale Mining Permits nor "control" over the said act of the Provincial Governor as it is a determination of the rights of AMTC over conflicting claims based on the law.

In determining whether Section 17 (b)(3)(iii) of the Local Government Code of 1991 and Section 24 of R.A. No. 7076 are unconstitutional, the Court has been guided by Beltran v. The Secretary of Health, 54 which held:

The fundamental criterion is that all reasonable doubts should be resolved in favor of the constitutionality of a statute. Every law has in its favor the presumption of constitutionality. For a law to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution. The ground for nullity must be clear and beyond reasonable doubt. Those who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis therefor. Otherwise, the petition must fail. 55

In this case, the Court finds that the grounds raised by petitioner to challenge the constitutionality of Section 17 (b )(3)(iii) of the Local Government Code of 1991 and Section 24 'of R.A. No.7076 failed to overcome the constitutionality of the said provisions of law.

WHEREFORE, the petition is DISMISSED for lack of merit.

CONCURRING OPINION

LEONEN, J.:

I concur in the result.

This is a case of overlapping claims, which involve the application of the Mining Act, and the Small-Scale Mining Act. It is specific to the facts of this case, which are:

The Mines and Geosciences Bureau, Regional Office No. III (MGB R-Ill) denied Golden Falcon Mineral Exploration Corporation's (Golden Falcon) application for Financial and Technical Assistance Agreement (FTAA) on April29, 1998 for failure to secure the required clearances.1

Golden Falcon appealed the denial-with the Mines and Geosciences Bureau-Central Office (Central Office).2 The appeal was denied only on July 16, 2004 or six years after Golden Falcon·appealed.3

On February 10, 2004, pending Golden Falcon's appeal to the Central Office, certain persons filed with the Provincial Environment and Natural Resources Office "(PENRO) of Bulacan their applications for quarry permit covering the same area subject of Golden Falcon's FTAA application.4

On September 13, 2004, after the Central Office denied Golden Falcon’s appeal, Atlantic Mines and Trading Corporation (AMTC) filed an application for exploration permit covering the same subject area with the PENRO of Bulacan.5

Confusion of rights resulted from the overlapping applications of AMTC and the persons applying for quarry permits. The main question was when did the subject area become open for small scale mining applications. At that time, the provincial government did not question whether it had concurrent or more superior jurisdiction vis-a-vis the national government.

It was upon query by MGB R-III Director Arnulfo Cabantog that DENR-MGB Director Horacio Ramos stated that the denial of Golden Falcon’s application became final fifteen days after the denial of its appeal to the Central Office or on August 11, 2004.6 Hence, the area of Golden Falcon’s application became open to permit applications only on that date.

After the MGB Director issued the statement, however, the Provincial Legal Officer of Bulacan, Atty. Eugenio F. Ressureccion issued a legal opinion on the issue, stating that the subject area became open for new applications on the date of the first denial on April 29, 1998.7

On the basis of the Provincial Legal Officer’s opinion, Director Cabantog of MGB R-III endorsed the applications for quarry permit, now converted to applications for small-scale mining permit, to the Governor of Bulacan.8 Later on, the Governor issued the small-scale mining permits.9

Upon appeal by the AMTC, the DENR Secretary declared as null the small-scale mining permits issued by the Governor on the ground that they have been issued in violation of Section 4 of R.A. No. 7076 and beyond the authority of the Governor.10 According to the DENR Secretary, the area was never proclaimed to be under the small-scale mining program.11 Iron ores also cannot be considered as a quarry resource.12

The question in this case is whether or not the provincial governor had the power to issue the subject permits.

The fact that the application for small-scale mining permit was initially filed as applications for quarry permits is not contested.

Quarry permits, however, may only be issued "on privately-owned lands and/or public lands for building and construction materials such as marble, basalt, andesite, conglomerate, tuff, adobe, granite, gabbro, serpentine, inset filling materials, clay for ceramic tiles and building bricks, pumice, perlite and other similar materials..."13 It may not be issued on "...resources that contain metals or metallic constituents and/or other valuable materials in economic quantities."14

Not only do iron ores fall outside the classification of any of the enumerated materials in Section 43 of the Mining Act, but iron is also a metal. It may not be classified as a quarry resource, hence, the provincial governor had no authority to issue the quarry permits in the first place. Probably realizing this error, the applications for quarry permit were converted to applications for small-scale mining permit.

Even so, the issuance of the small-scale mining permit was still beyond the authority of the provincial governor. Small-scale mining areas must first be declared and set aside as such before they can be made subject of small-scale mining rights.15 The applications for small-scale mining permit, in this case, involved covered areas, which were never declared as people’s small-scale mining areas. This is enough reason to deny an application for small-scale mining permit. Permits issued in disregard of this fact are void for having been issued beyond the authority of the issuing officer.

Therefore, there was no issue of local autonomy. The provincial governor did not have the competence to issue the questioned permits.

Neither does the League of Provinces have any standing to raise the present constitutional issue.

Locus standi is defined as "a right of appearance in a court of justice on a given question."16 The fundamental question is "whether a party alleges such personal stake in the outcome of the controversy

as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions."17

In case of a citizens’ suit, the "interest of the person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law is invalid, but also that he has sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way."18 In the case of Telecommunications and Broadcast Attorneys of the Philippines, Inc. and GMA Network, Inc. v. COMELEC, we said that a citizen who raises a constitutional question may only do so if s/he could show: (1) that s/he had personally suffered some actual or threatened injury; (2) that the actual or threatened injury was a result of an allegedly illegal conduct of the government; (3) that the injury is traceable to the challenged action; and (4) that the injury is likely to be redressed by a favorable action.19

The Petitioner League of Provinces’ status as an organization of all provinces duty-bound to promote local autonomy20 and adopt measures for the promotion of the welfare of provinces21 does not clothe it with standing to question the constitutionality of the Section 17(b)(iii) of the Local Government Code and Section 24 of Rep. Act No. 7076 or the Small-Scale Mining Act.

As an organization that represents all provinces, it did not suffer an actual injury or an injury in fact, resulting from the implementation of the subject provisions. It cannot be said either that the provinces that Petitioner represents suffered the same injury when the Central Office nullified the permits issued by the Governor of Bulacan.

Provinces do not have a common or general interest on matters related to mining that the League of Provinces can represent. Each province has a particular interest to protect and claims to pursue that are

separate and distinct from the others. Therefore, each is unique as to its reasons for raising issues to the Court. The League of Provinces cannot represent all provinces on mining-related issues. The perceived wrong suffered by the Province of Bulacan when the Central Office allegedly exercised control does not necessarily constitute a wrong suffered by the other provinces.

Furthermore, the Constitution provides for two types of local governance other than the national government: 1) The territorial and political subdivisions composed of provinces, cities, municipalities and barangays; and 2) autonomous regions.22 The division of Article X of the Constitution distinguishes between their creation and relationship with the national government.

The creation of autonomous regions takes into consideration the "historical and cultural heritage, economic and social structures, and other relevant characteristics"23 which its constituent geographical areas share in common. These factors are not considered in the creation of territorial and political subdivisions.

Autonomous regions are not only created by an act of the Congress. The Constitution also provides for a plebiscite requirement before the organic act that creates an autonomous region becomes effective.24 This constitutes the creation of autonomous regions a direct act of the people. It means that the basic structure of an autonomous region, consisting of the executive department and legislative assembly, its special courts, and the provisions on its powers may not be easily amended or superseded by a simple act of the Congress.

Moreover, autonomous regions have powers, e.g. over their administrative organization, sources of revenues, ancestral domain, natural resources, personal, family and property relations, regional planning

development, economic, social and tourism development, educational policies, cultural heritage and other matters.25

On the other hand, the creation of territorial and political subdivisions is subject to the local government code enacted by the Congress without a plebiscite requirement.26 While this does not disallow the inclusion of provisions requiring plebiscites in the creation of provinces, cities, and municipalities, the local government code may be amended or superseded by another legislative act that removes such requirement. Their government structure, powers, and responsibilities, therefore, are always subject to amendment by legislative acts.

The territorial and political subdivisions and autonomous regions are granted autonomy under the Constitution.27 The constitutional distinctions between them imply a clear distinction between the kinds of autonomy that they exercise.

The oft-cited case of Limbona v. Mangelin28 penned by Justice Sarmiento distinguishes between two types of autonomy:

…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’…

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.

x x x

An autonomous government that enjoys autonomy of the latter category [CONST. (1987), art. X sec. 15.] is subject alone to the decree of the organic act creating it and accepted principles on the effects and limits of "autonomy." On the other hand, an autonomous government of the former class is, as we noted, under the supervision of the national government acting through the President (and the Department of Local Government)…

I agree that autonomy, as phrased in Section 2 of Article X of the Constitution, which pertains to provinces, cities, municipalities and barangays, refers only to administrative autonomy.

In granting autonomy, the national government does not totally relinquish its powers.29 The grant of autonomy does not make territorial and political subdivisions sovereign within the state or an "imperium in imperio".30 The aggrupation of local government units and the creation of regional development councils in Sections 13 and 14 of Article X of the Constitution do not contemplate grant of discretion to create larger units with a recognized distinct political power that is parallel to the state. It merely facilitates coordination and exchange among them, still, for the purpose of administration.

Territorial and political subdivisions are only allowed to take care of their local affairs so that governance will be more responsive and effective to their unique needs.31 The Congress still retains control over the extent of powers or autonomy granted to them.

Therefore, when the national government invalidates an act of a territorial or political subdivision in the exercise of a power that is constitutionally and statutorily lodged to it, the territorial or political subdivision cannot complain that its autonomy is being violated. This is especially so when the extent of its autonomy under the Constitution or law does not include power or control over the matter, to the exclusion of the national government.

However, I do not agree that Limbona v. Mangelin correctly categorized the kind of autonomy that autonomous regions enjoy.

In that case, the court tried to determine the extent of self-government of autonomous governments organized under Presidential Decree No. 1618 on July 25, 1979. This is prior to the autonomous regions contemplated in the 1987 Constitution.

Autonomous regions are granted more powers and less intervention from the national government than territorial and political subdivisions. They are, thus, in a more asymmetrical relationship with the national government as compared to other local governments or any regional formation.32 The Constitution grants them legislative powers over some matters, e.g. natural resources, personal, family and property relations, economic and tourism development, educational policies, that are usually under the control of the national government. However, they are still s"ubject to the supervision of the President. Their establishment is still subject to the framework of the Constitution, particularly, sections 15 to 21 of Article X, national sovereignty and territorial integrity of the Republic of the Philippines.

The exact contours of the relationship of the autonomous government and the national government are defined by legislation such as Republic Act No. 9054 or the Organic Act for the Autonomous Region in Muslim Mindanao. This is not at issue here and our pronouncements should not cover the provinces that may be within that autonomous region.

Considering the foregoing, I vote to DISMISS the petition.