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ANNOTATION

ARE JUSTICES LAWMAKERS, TOO?

By

MANUEL M. LAZARO*

——————

§ A.The three branches of government legislate in their own subtle and unobstrusive way, p. 186

§ B.Genesis of a judicial legislation, p. 186

§ C.Silence, obscurity, or insufficiency of the law are occasions for Justices to legislate, p. 188

§ D.Rule-making power of the Supreme Court, p. 188

§ E.Instances of judicial legislations, p. 188

§ F.Courts govern through judicial legislation, p. 190

§ G.Contrasting views on whether courts may legislate, p 191

§ H.Justices as lawmakers are not accountable to the people, p. 193

§ I.L’ENVOI, p. 194

———————

One hundred eighty-two years ago, Chief Justice Marshall of the U.S. Supreme Court laid the foundation
of the power of judicial review in this wise: “It is emphatically the province and duty of the judicial
department to say what the law is.” (Marbury vs. Madison, L Cranch 127 [1803]). This keystone
pronouncement ignited accidentally the birth of the nebulous power of courts to legislate or make laws.
Reinforcing the jurisprudential rule, Chief Justice Hughes remarked that the Constitution is what the
Court says it is. (Chief Justice Charles Evans Hughes Address [2nd ed. 1916]). This was echoed
resoundingly by Justice Cardozo when he wrote, “(T)he law is what the judges declare.” (“The Nature of
the Judicial Process,” [1927]).

Decision-making process pervades and permeates broad and deep areas. It is varnished with tempting
occasions for justices to legislate under the guise of adjudication. Decisional process “offers opportunity
for creative manipulation or resigned impotence.” The judges “breathe life, feeble or strong, into the
inert pages of the Constitution and of statute books,” wrote Justice Felix Frankfurter. Thus,
Constitutional lawyer Floyd Abrams notes, “it matters who does the breathing.” The judges are
influenced, wittingly or unwittingly, by their own personal values, beliefs and philosophies in the
decisional process. The personality of the judges is a pivotal factor in legal administration. The “law may
vary with the personality of the judge who happens to pass upon any given case.” (C.J. Frank Law and
the Modern Minds [1930]). Thus, oftentimes the law declared is the “will of judges or justices” and not
the will of the people as crystallized by their representatives in the legislature.

Recently, there have been grandiose outbursts of judicial lawmaking. The Supreme Court has been
prodigiously making or amending laws. The Courts are today fired with exuberant enthusiasm. Some
writers call this stance “judicial activism.” Judge Wright and Professor Bickie call it “judicial
obstructionism” (Harv Lw Rev 769 [1971]). Others label it “judicial imperialism.”

This dubious, and at times mischievous, conduct of making laws and/or amending the Constitution in
the process of adjudication, generates disturbing questions that spark intellectual conflagration: ARE
JUSTICES OR JUDGES LAWMAKERS, TOO? IS THE SUPREME COURT A CONTINUING LEGISLATURE AND AN
ENDLESS CONSTITUENT ASSEMBLY? ARE THERE JUDGE-MADE LAWS? DO COURTS HAVE THEIR OWN
AMENDMENT

Are Justices Lawmakers, Too?

NO. 6? IF SO, WHEN AND HOW DO THEY LEGISLATE? ARE JUSTICES OR JUDGES ACCOUNTABLE TO THE
PEOPLE FOR THEIR LAWMAKING DECISIONS? SHOULD JUDICIAL LEGISLATION BE TOLERATED OR
ERADICATED?

§ A.The three branches of government legislate in their own subtle and unobstrusive way

Nowadays there is a lot of sound and fury on who may legislate. It is the focus of national concern.
Traditionalists insists that legislative power, by the Constitution, is exclusive with the legislature. Others,
however, concede the exercise by the President of legislative powers under his “delegated emergency
powers” (Article VIII, Sec. 15) of the 1973 Constitution) or under Amendment No. 6 (1976 Amendment
of the 1973 Constitution). Except for the members of the Bench and of the Bar, very few realize that the
judiciary also legislates or makes laws or amends the Constitution in its own subtle and unobstrusive
way. Courts do, in fact, what the two other branches of government do. They “make law in what often
appears as lawless process.” (Richard Neely, How Courts Govern America, New Haven & London: Yale
University Press [1981], p. 9). Thus, it has been said that courts are uniquely undemocratic institutions in
an otherwise democratic society.

The view of Montesquieu then that there should be clear demarcation lines among the three branches
of government is more of an idealistic conception than an actual phenomenon. For, in the legislative
domain, the three branches share in the process in their own inimitable ways. They are partners in the
enterprise of lawmaking.

Contrary to the notions of many, courts intervene in the political process through imaginative
interpretation or construction of the Constitution or statutes in defense of human, social or political and
civil rights. At times, some judges and justices inseminate into their decisions their personal political
perceptions or intellectual beliefs. And not too often, they impregnate pronouncements with their
personal biases, frustrations and prejudices. Others equate their personal views with wisdom and sound
policy thus the law is aborted by judicial fiat. On other occasions courts employ the prudential strategy
by gauging their stand on what is popular and acceptable to the people. Yet, lawyers are helpless. They
cannot seek redress or impugn such pernicious and dubitable judicial conduct. What the courts say or
declare is final. As Justice Robert Jackson said, the Supreme Court is final not because it is infallible;
rather the Court is infallible because it is final. Unlike in legislative and executive acts, the Supreme
Court is answerable to no one and subject to no review. The Supreme Court has absolute powers to
control virtually all of government, whether legislative, executive or judicial. In the Philippines this
absolute power is exercisable by at least ten out of the fifteen members of the Supreme Court. (Sec.
2(2), Article X, 1973 Constitution). The only check to this absolute power, according to Chief Justice
Harlan F. Stone, “is our own sense of self-restraint” (United States v. Butlet [1936] 297 U.S. 1 at p. 79,
dissenting opinion) or the application of the teachings of the doctrine of judicial restraint as forcefully
articulated by Justices Frankfurter and Jackson. However, reliance on judicial restraint is, at most,
reliance on a rope of sand.

The Supreme Court is the only institution whose mistakes or errors are final and at times become laws.
It is the only organ that can impinge on the law or the Constitution sans anybody adjudging its conduct.
Thus the ancient query “who judges the judges?” remains perpetually unanswered.

§ B. Genesis of a judicial legislation

Every court judgment begins with a lawsuit and invariably ends up as law. The Constitution or statute is
applied, interpreted or construed only when there is a case filed. The power to construe resides with the
courts. Under Article 8 of the Civil Code, judicial decisions applying or interpreting the law or the
Constitution shall form part of the legal system of the Philippines. The “judicial decisions” refer only to
those emanating from the Supreme Court (Miranda vs. Imperial, 77 Phil. 1066 [1947]). However,
decisions of the Intermediate Appellate Court (IAC) on points of law not yet decided by the Supreme
Court serve as guide to the lower courts. Such IAC pronouncements are raised to the status of doctrines
once approved by the Supreme Court. (Edgardo Paras, Civil Code of the Philippines Annotated, Vol. 1
Tenth Edition [1981], p. 41 citing Miranda, supra, and Gaw Sin Gee vs. Market Master of the Divisoria
Market, et al., C.A. 45 O.G. 2617).

§ C. Silence, obscurity, or insufficiency of the law are occasions for Justices to legislate

Article 9 of the Civil Code provides: “No judge or court shall decline to render judgment by reason of the
silence, obscurity or insufficiency of the laws.” A decision in a case is imperative. The judge should make
a stand. Where the law is silent, the judge must speak out; where it is obscure, he must illuminate; and
where it is inadequate he must fill in the vacuum. In these instances, the judge is allowed flexibility to
make laws. As pointed out by Justice Cardozo, the judge “legislates x x x between gaps. He fills the open
spaces in the law.”

§ D. Rule-making power of the Supreme Court

Under Section 5, Article X of the Constitution, the Supreme Court is also empowered, among others, to
“promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the
practice of law and the integration of the bar, which, however, may be repealed, altered, or
supplemented by the Batasang Pambansa.” These are the other occasions when the Supreme Court is
sanctioned by the Constitution to exercise legislative functions.

§ E. Instances of judicial legislations

There were numerous instances in the past where the Supreme Court had made laws or amended the
Constitution in the process of adjudicating cases outside the periphery of the tolerated areas.

The most recent and blatant is the case of Pimentel vs. COMELEC, et al., G.R. No. 6188, Dec. 22, 1984.

The Supreme Court in an unprecedented and inexplicable posture, allegedly in the exercise of its equity
jurisdiction, considered Pimentel’s Urgent Motion with a Prayer for Contempt as a petition for certiorari
from the adverse decision of October 24, 1984 of the COMELEC. Notably, as in this case, the Supreme
Court has disregarded or suspended the Rules of Court allegedly because public interest is involved. The
Court ordered “that the ballot boxes containing 228 election returns be brought to the Supreme Court x
x x for the purpose of counting the votes in the presence of counsel for both parties and thereafter
determine in accordance with applicable law who is entitled to the office of Assemblyman for Cagayan
de Oro City.” The resolution of the Court virtually constituted itself not only as a citizens election
committee but as a board of canvassers as well.

The Court arrogated unto itself the powers to canvass the election returns, open the boxes and to
arithmetically count the votes. But the Constitution mandates that the COMELEC is the “sole judge of all
contests relating to the elections returns, x x x.” (Sec. 2, Article XII-C, 1973 Constitution). Thus, the
power to canvass the election returns and count the ballots resides solely with the COMELEC. And under
Sec. 50 of B.P. 697, the Commission is the sole judge of, and has exclusive jurisdiction over
preproclamation controversies. The power to order the opening of ballot boxes and to count votes after
their integrity have been shown is vested in the Commission. (Section 160 of the 1978 Election Code).

Significantly, the decision, order or ruling of the COMELEC may be brought to the Supreme Court on
certiorari (Sec. 11, Article XII-C, 1973 Constitution). Certiorari as a remedy precludes therefore the
Supreme Court from digging into the merits of the case and unearthing errors of judgment of the
COMELEC (Aratuc vs. Comelec, 88 SCRA 251). For, certiorari determines only whether the COMELEC
acted without or in excess of its jurisdiction or with grave abuse of discretion, But, by canvassing the
election returns, opening the boxes and counting the ballots, the Supreme Court has exceeded its
constitutionally assigned and limited task.

The Pimentel decision is a virtual amendment of the Constitution and a fundamental revision of the
election law. It appears that the Court overacted in the face of public attention, It adopted a quaint
stance. The Court metamorphosed into a law-making body when it recasted the election law without
the justices elected as lawmakers. Simultaneously, the court constituted itself as a constituent assembly.
By stroke of the pen, the imperious Court, under the aegis of its dubious equity jurisdiction, amended
the Constitution and the election law, Gerald T. Dunne describes equity jurisdiction as “the seedbed of
the imperial judiciary and the instrument of constitutional subversion.” The Pimentel resolution is a
taste of judicial imperialism.

The Pimentel ruling is a classic paradigm of when Justices make laws or amend the Constitution. It is a
typical demonstration of the substitution of the will of the people by the will of the Justices. The
Supreme Court is a unique legal institution. It has the formidable combination of authority to declare
the law beyond what the Legislature has said it is and beyond what the Executive thinks it is. (U.S. vs.
Nixon, 418 U.S. 683 [1978]). This singular resolution of the Court shed its immunity from the
blandishments of political marketplace. It reduced the Supreme Court into an electoral tribunal
enmeshed with political disputes.

Is the Supreme Court prepared to grant the same stance to all pre-proclamation cases?

At times, one wonders whether the Supreme Court has its own peculiar Amendment No. 6, which is
more pervasive and extensive than that of the President because it is limitless.

§ F. Courts govern through judicial legislation


Justice Richard Neely’s book “How Courts Govern America” offers an incisive study of the awesome and
dangerous power of the courts to govern the various agencies of Government. This power—unrestricted
and boundless—is manifested fundamentally in the courts’ interpretation of the Constitution.

Whenever the courts interpret the Constitution, the end result is not merely judicial legislation but a
Constitution amendment which cannot be repealed or amended by the legislature. The only alternative
is to amend the Constitution—a process that is, however, cumbersome to pursue.

Courts also exercise control over administrative agencies by vetoing, so to speak, administrative actions.
Actions of administrative or quasi-judicial boards, commissions and other like agencies may be nullified
or set aside by the courts on the grounds of irregularities, arbitrariness, lack of or excess of jurisdiction
or absence of factual or legal support to the decision.

Judges or justices hold the power of life and death over individuals. Even a simple trial judge of the
lowest court, according to Neely, “has the most individual ‘power’ because he alone controls his
courtroom, makes lawyers argue their cases or present briefs, ‘memoranda’ on certain days, and can
decide motions and cases like a tyrant.” Judges and justices are “dictators” in their own subtle way.

Such is the broad spectrum of judicial powers which Justice Frankfurter candidly characterizes as
“inherently oligarchic” and “prone to misconceive the public good by confounding private notions with
constitutional requirements.” Thus, Jefferson all of his life thought of the court as an “impossible body
and independent of the nation itself.” (A.F. of L. v. American Sash Co. [1949] 335 U.S. 538).

§ G. Contrasting views on whether courts may legislate

The shrewish or picky question is, should the judge or justice merely find and apply or interpret the law,
or should he also legislate or make laws? This enigmatic poser has generated contrasting views.

Delving into the question, an American author pointedly observes “x x x that Judges not only can
legislate but also ought consciously to do so.” (Fred V. Cahill, Jr., Judicial Legislation: “A Study in
American Legal Theory,” New York: The Ronald Press Company [1952], p. 3).

Alexander Hamilton concedes as justified judicial legislation in his classic work, The Federalist.

Henry Hart asserts that when the case falls within the “open texture” at the borderlines of legal rules,
the Judge has the discretion to make a choice and must engage in “creative or legislative activity.” (See
H. Hart, The Concept of Law [1981]).

Lord Mansfield’s concept is that where the need for new law is great and the legislature is supine,
judicial lawmaking is appropriate.

To John Austin, judicial legislation is necessitated by the inadequacy or complacency of the legislature.
He wrote in Jurisprudence: “I cannot understand how any person who has considered the subject can
suppose that society could possibly have gone on if Judges had not legislated, or that there is any danger
whatever in allowing them that power which they have in fact exercised, to make up for the negligence
or the incapacity of the avowed legislator.”

Justice Holmes, in his opinion in the Jensen case (Southern Pacific Co. vs. Jensen, 244 U.S. 204 [1917]),
candidly acknowledges the judicial lawmaking power and for its biting condemnation of the use of that
power. Holmes states “x x x that judges do and must legislate, but they can do so only interstitially; they
are confined from molar to molecular motions.”

On the other hand, there are authorities who abhor judicial legislation. Justice David Brewer announced
in 1893 that “the courts make no law,” “establish no policy,” “never enter into the domain of public
action,” and “do not govern” (Proceedings of the New York Bar Association 46 [1893]). This attitude is
necessary to maintain the independence and majesty of the judiciary that is not democratically selected.
To suggest openly that Judges “made laws” is to raise the spectre of unchecked judicial bias and to
revive the eighteenth century fears of judicial tyranny (Patterns of American Legal Thought, p. 57).

Ronald Dworkin, a respected legal writer, sharply challenges in a series of articles, the notion that Judges
have the discretion to legislate (Dworkin, Judicial Discretion, 60 J. Phil. 624 [1963]; The Model of Rules,
reprinted in Essays in Legal Theory, 81 Yale L.J. 855 [1972]). He asserts that Judges are always
constrained by the law, never free to go outside the law or to make a creative legislative choice.

Rolf Sartorious echoes Dworkin when he posts that judges are not “entitled to exercise an essentially
legislative discretion.” (Sartorious, Social Policy and Judicial Legislation, 8 AM Phil. Q 151, 155 [1971];
Sartorious, Individual Conduct and Social Norms [1975], pp. 181-210).

Blackstone in turn intones: “A Judge is ‘sworn to determine, not according to his own private judgment,
but according to the known laws and customs of the land; not delegated to pronounce a new law, but to
maintain and expand the old one.” “He points out that “in a democracy the right of making laws resides
in the people at large.” (1 Bl. 49)

Jeremy Bentham speaks contemptuously of “judge-made law.” (Austin, Lectures on Jurisprudence, 242
[5th ed. 1885]). To fill in gaps, as viewed by another writer, is “naked usurpation of the legislative
function under the thin disguise of interpretation.” (Lord Simmons, 95 Eng. Rep. 807) (K.B. 1765).

Justice Black says that the people and their elected representatives, not judges, are constitutionally
vested with the power to amend the Constitution or the laws. Accordingly, judges should not usurp that
power in order to put their own views (Justice Black’s statement in Boddie v. Connecticut, [1917] 401
U.S. 371).

Appellate lawmaking itself is still typically covert and indirective, still half-apologetic and guilt-laden.
(Beryl Harold Levy, Realist Jurisprudence and Prospective Overruling, 109 U. Pa. L. Rev. [1960]).

§ H. Justices as lawmakers are not accountable to the people

Some members of the Judiciary have the predilection or penchant to make laws. The irony is that they
are not accountable to the people for the errors or mistakes committed since they enjoy security of
tenure.

Some quarters maintain that judicial legislation is dictatorial and dangerous. It is enacted by a small
group of people who are neither elected by, nor held answerable to the people.

By constrast, the acts of the Executive and the Legislative are subject to review or under constant
scrutiny.
The only way the Court can perhaps rectify its mistake or error is to have a similar case in the future to
decide. Such opportunity may never come, thus, immortalizing the error. This is the congenital defect
and paradox of judicial legislation.

§ I. L’ENVOI

The Judiciary has never been designed or envisioned to be a legislature. The justices and judges are not
mandated or the least expected to make laws or amend Constitutions. These are textually demonstrable
by the Constitution itself. Justice Roberts said in 1906—“all the court does and can do, is to announce its
considered judgment upon the question. The only power it has, if such it may be called, is the power of
judgment Its delicate and difficult office is to ascertain and declare whether the legislation is in
accordance with or in contravention of, the provisions of the Constitution; and having done that, its duty
ends.” (United States v. Butler [1936] U.S. 1 at pp. 62-63). This limited role stems from the fact that the
Judiciary is an unrepresentative, elitist institution in a democratic society that believes in representative
government.

Courts should not make laws. Legislatures are better equipped, better informed, possess greater
sensitivity and exercise a broader vision in making new laws than courts. Courts lack appropriate
personnel and proper tools to do effective legislative work (Price of Perfect Justice by Macklin Fleming,
p. 119). Courts have limited access to information that is essential to effective solutions of general or
political problems. The courts’ informations generally come from two partisan individuals or groups,
each with an ax to grind and interested only to secure a favorable decision. Judicial solutions tend then
to be indirect, awkward, obscure and incomplete. Courts are inept instruments for political brokerage.

Courts should be reminded that their role is to adjudicate and not to make laws. Unless they employ
restrained and constant discipline, justices might feel egocentricaliy licensed to go on a legislative
rampage. The trouble is that legislatures all over the world have, from time to time, explicitly or
implicitly recognized the legislative character of the Supreme Courts, sometimes forgetfully.

The metamorphosis of courts into active legislatures, in the words of Justice Harlan, is “all wrong”
(Harper v. Virginia Bd. Electrons [1966] 383 U.S. 663 at 686). Courts are awkwardly positioned to carry
out legislative functions.

Unabated judicial lawmaking would lead to legislative declension and court ascension. The perfidious
consequence would be a government of men and not of laws. It would be the end of the rule of law and
the beginning of the rule of judges and justices, who tower above the law.

Unless the Supreme Court thinks of itself always and only as a court and leaves lawmaking to the
political branches of the government, that grim scenario is something we may not be able to prevent to
happen.
ANNOTATION

OVERBREADTH: UNREASONABLE ORDINANCES

By

ROGELIO E. SUBONG*

_______________

I.Introduction, p. 194

II.The Nature of Legislative Power of Local Government Units and Its Limits, p. 196

III.Some Pertinent Decisions of the Supreme Court on Challenged Ordinances, p. 197

1.U.S. vs. Abendan, 24 Phil. 165 (1913), p. 197

2.Cu Unjieng vs. Patstone, 42 Phil. 818 (1922), p. 199

3.Icard vs. City Council of Baguio, 83 Phil. 870 (1949), p. 200

4.Vega vs. Mun. Board of the City of Iloilo, 94 Phil. 949 (1954), p. 201

5.Morcoin Co. Ltd. vs. City of Manila, 1 SCRA 310 (1961), p. 202

6.Sarmiento vs. Belderol, 2 SCRA 477 (1961), p. 203

7.Pampanga Bus Co. Inc. and La Mallorca vs. Mun. of Tarlac, 3 SCRA 816 (1961), p. 204

8.Lacson vs. Bacolod City, 4 SCRA 1001 (1962), p. 205

9.Ermita-Malate Hotel & Motel Operators Asso. Inc. vs. City Mayor of Manila, 20 SCRA 849 (1967), p. 206

10.City of Ozamis vs. Lumapas, 65 SCRA 33 (1975), p. 207

11.De la Cruz vs. Paras, 123 SCRA 568 (1983), p. 208

12.Villacorta vs. Bernardo, 143 SCRA 480 (1986), p. 209

13.Sangalang vs. IAC, 176 SCRA 719 (1989), p. 210

14.Solicitor General vs. Metropolitan Manila Authority, 204 SCRA 837 (1991), p. 211

IV.The Case Under Annotation, Lucena Grand Central Terminal Inc. vs. JAC Liner Inc., supra, p. 212

V.The Ordinances/Resolutions Passed By Various Local Government Units in Mindanao, p. 215

1.The pertinent facts, p. 215

2.Typical ordinances, p. 216

VI.The Effects of theImplementation of the Ordinances, p. 218

VII.Position of the Bus Operators on these Ordinances, p. 219


VIII.The Concept of Overbreadth and Some Questions, p. 220

1.What is overbreadth?, p. 220

2.Some questions, p. 222

IX.The Lucena Grand Central Ordinances and the Mindanao Local Government Units Ordinances, p. 223

X.Conclusion, p. 225

_________________

I. Introduction

Local Government Units (LGUs) are unarguably an important adjunct of Government machinery because
the national center cannot supervise and oversee all those administrative nooks and crannies in the
country. These LGUs have been accorded a wide latitude of autonomy since they are expected to know
the peculiar needs and problems of their respective territories. However, perhaps out of ignorance,
audacity or desire to enhance the interest of their political subdivisions, they sometimes come up with
invalid local legislations or ordinances. These ordinances violate the tenets of constitutionality, legality,
fairness, non-oppressiveness, non-discrimination and/or reasonableness, among other requisites. The
goals of local legislations are generally commendable but they may still be nullified for being ultra vires
or for overbreadth when the means to achieve the goal of these local legislations meander beyond the
bounds of reason and fairness, as defined by the High Court in this decision under annotation. In that
event, they should be struck down for breaching the tests of validity.

The decision under Annotation, Lucena Grand Central Terminal Inc. vs. JAC Liner, Inc., G.R. No. 148339
dated February 23, 2005 has been long-awaited by many land transport operators all over the country,
especially by those in Mindanao. In this case, a bus operator which has a private terminal for its buses in
the city, challenged the constitutionality and legality of city ordinances that granted an exclusive
franchise to a private entity to construct and operate a common bus/jeepney terminal in the city,
declared “inoperable” other private terminals within the city, and directed bus and jeepney operators to
use such terminal for their public utility vehicles to pick and drop passengers. Although the decision
ruled on the validity of local ordinances in Lucena City, Quezon Province, it may send a damper to
numerous LGUs in

Mindanao and some other parts of the country. These LGUs had passed local ordinances compelling bus
and jeepney operators therein to use common terminals owned and operated by the former for which
fees per vehicle are collected. Mindanao bus operators were however hesitant to sue for fear of
retaliation from these LGUs so they just suffered in silence. They bled and continue to bleed from these
“terminal fees” exacted on them every time their buses enter these LGU terminals. This recent decision
under Annotation may provide some light at the end of the tunnel for them. Hence, there is a need to
discuss and analyze this decision whether its holding would have the “liberating effect” of nullifying all
those city and municipal ordinances passed by Mindanao LGUs and by some LGUs in Luzon which have
some similarities to these challenged ordinances of the City Council of Lucena City, Quezon Province.

II. The Nature of Legislative Power of Local Government Units and Its Limits
As stated above, LGUs are not islands in themselves in the political geography of the country. As
indispensable parts of a contiguous whole, they have to meld and blend with the ideology and system of
the political hub. Like quasi-judicial administrative bodies, they are also “creatures of the legislature”
with limited powers in the sense that they can exercise only such powers authorized by their charters
and those that may be inferred from those expressly granted. While they enjoy considerable autonomy,
they are expected to be “team players.” If LGUs acted like independent fiefdoms and their local
legislations or ordinances veer away from national policy and direction, then they had to be “reined in”
and reminded of their role in the national polity by the nullification of these legislative acts or issuances.
The need for ordinances to conform with the thrust and policy of the national government was
expressed by Justice Teehankee in his concurring opinion in Villegas vs. Hiu Chiong Tsai Pao Ho, 86 SCRA
270 (1978) which nullified a City of Manila ordinance requiring aliens to pay P50.00 before employment
within the city:

“As stated by the Court in the early case of Phil. Coop. Livestock Ass’n vs. Earnshaw, 59 Phil. 129: ‘The
City of Manila is a subordinate body to the Insular National Government . . . . . . When the Insular
(National) Government adopts a policy, a municipality is without legal authority to nullify and set at
naught the action of the superior authority.’ Indeed, ‘not only must all municipal powers be exercised
within the limits of the organic laws, but they must be consistent with the general law and public policy
of the particular state . . . . . . .’ (McQuillin, Municipal Corporations, end sec. 367, p. 1011). ”

Through the years, LGUs have been restricted in the exercise of their powers and functions by the rule
that all their actions must find support in the laws or charters creating them. The Supreme Court
restated this principle in City of Tagbilaran vs. Lim, 52 SCRA 381 (1973):

“In the first case where the question (of powers of the LGUs) was considered, Switzer v. Municipality of
Cebu (20 Phil. 111) promulgated in 1911, Justice Mapa for the Court emphasized the grant of ‘specific
and definite power.’ Then came United States v. Ten Yu (24 Phil. 1) where it was held: ‘Municipal
corporations have only such powers as are expressly delegated to them and such other powers as are
necessarily implied from such express powers.’ Such a doctrine was slightly recast, but on a purely
verbal level, by Justice, later Chief Justice, Abad Santos, in People v. Lardizabal thus: ‘It is well settled
that municipal corporations may exercise such power as are expressly granted to them, and such other
powers as are necessarily implied from those expressly granted.’ That was merely to emphasize that
municipal corporations, as noted by the then Justice, later Chief Justice Concepcion, ‘are merely
creatures of Congress.’ As such then, they ‘have only such powers as the legislative department may
have deemed fit to grant them.’ ”

The leading case that provided the tests and/or limits to the lawmaking powers of LGUs is US vs.
Abendan, 24 Phil. 165 (1913) which tests were reiterated in Municipality of Virac vs. Tatel, 207 SCRA 157
citing Magtajas vs. Pryce Properties Corp., Inc., 234 SCRA 255, Solicitor General vs. Metropolitan Manila
Authority, 204 SCRA 837, and De la Cruz vs. Paras, 123 SCRA 569:

“a) It must not contravene the constitution or any statute;

b) It must not be unfair or oppressive;

c) It must not be partial or discriminatory;

d) It must not prohibit but may regulate trade;


e) It must be general and consistent with public policy; and

f) It must not be unreasonable.”

III. Some Pertinent Decisions of the Supreme Court on Challenged Ordinances

1. U.S. vs. Abendan, 24 Phil. 165 (1913)

We have the earlier case of US vs. Abendan, supra, wherein the High Court upheld the validity of an
ordinance

Overbreadth: Unreasonable Ordinances

penalizing unsanitary practices among residents in a city. A resident was convicted for violation of a
municipal ordinance of the City of Cebu for refusing to undertake sanitary measures in his house. The
ordinance provided that it was the duty of the house, building or place owner which has been declared
in an unsanitary condition by a sanitary officer to comply with his order to repair or clean up the place
and put it in sanitary condition.

The accused was directed to install a ventilator and closet in his house as well as bell-traps in his
kitchens. There were families living in the premises as lessees. Failing to obey the directive, accused was
charged and convicted for violation of this ordinance. On appeal, he claimed that the ordinance was
unreasonable and oppressive. Held: Judgment appealed from affirmed.

The High Court cited Par. jj of Section 39 of the Municipal Code, the forerunner of the present General
Welfare Clause in the present Local Government Code:

“(jj) Make such ordinances and regulations, not repugnant to law, as may be necessary to carry into
effect and discharge the powers and duties conferred by this Act, and such as shall seem necessary and
proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good
order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection
of property therein; x x x x”

The High Court found that:

“It appearing that the City of Cebu at the time this ordinance was enacted had full authority from the
Legislature to enact an ordinance upon the subject embraced with it, such ordinance is valid, unless it
contravenes the fundamental law of the Philippine Islands, or an Act of the Philippine Legislature, or
unless it is against public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation
of common right.”

2. Cu Unjieng vs. Patstone, 42 Phil. 818 (1922)

In Cu Unjieng vs. Patstone, supra, the High Court nullified a city ordinance for being oppressive as it
imposed taxes in the guise of regulation fee. This was an appeal from the ruling of the lower court
declaring null and void an ordinance of the City of Manila on building permit. This case which arose
before the war was about the plan of a lot owner along Azcarraga St. (now CM Recto) to build a
warehouse for which he applied for a building permit. This permit was withheld unless the plan had
been approved by the city engineer, a license fee 1/2 of the assessed value of the land was paid, and an
arcade was built with plan also duly approved and license fee therefore paid. The petitioner refused to
comply with the ordinance as well as construct the arcade as it was unnecessary and unsuitable for his
warehouse. He claimed that the city did not have the power to impose the license fee because it was in
excess of its legislative power and therefore, unconstitutional. This ordinance was declared null and void
by the trial court. This ruling was appealed to the High Court. Held: Judgment affirmed. Ordinance null
and void.

The pertinent issue as defined by the Court: “Whether under its charter, the City of Manila may under
the guise of a license fee and as a prerequisite for the issuance of a building permit, exact the payment
of one-half of the assessed value of the portion of the sidewalk covered by the arcade?”

The High Court reasoned: “That the city does not possess such an extraordinary power as that of
compelling property holders to lease portions of the public sidewalks which adjoin their lands requires
no argument.” It found that the charge of ½ of the assessed value of the lot is not a rent and to be valid,
it must be either a tax or a license fee. It reproduced pertinent portions of the Administrative Code as
statutory basis for the taxing power. It found that the power vested upon the city was to impose license
fee for the purpose of regulation, not for revenue purposes.

“The Legislature of the state is not without power to impose a tax on a business in the form of a license
fee, when it deems such to be warranted by considerations of public interest and for the general
welfare, and the only limitation upon its exercise of power, in that respect, is that there shall be no
discrimination or oppression, and that the burden shall be equally charged upon all persons in similar
circumstances.”

It found the fee excessive:

“x x x x the better rule seems to be that the conferred power (police power) to regulate and to issue
such licenses carries with it the right to fix a license fee. It is well settled that in the absence of special
authority to impose a tax for revenue the fees for this class of licenses may only be of a sufficient
amount to include the expense of issuing the licenses and the cost of the necessary inspection or police
surveillance, taking into account not only the expense of direct regulation but also incidental
consequences.”

3. Icard vs. City Council of Baguio, 83 Phil. 870 (1949)

In Icard vs. City Council of Baguio, supra, ordinances imposing an additional fee to enter nightclubs and
property tax were held invalid as not authorized by the city charter. The City Council of Baguio passed
ordinances which imposed an amusement tax of P0.20 for every person entering a nightclub and
property tax for owning a motor vehicle. These ordinances along with other ordinances were questioned
before the lower court through a Petition for Declaratory Relief for being unjust and ultra vires.
Petitioner also asked for reimbursement of what was already paid. The lower court declared the
ordinances null and void. The issue was whether the City of Baguio had the power to enact these
ordinances. Held: Decision affirmed.

“It is settled that a municipal corporation, is like a sovereign state. Is clothed with an inherent power of
taxation. The charter or statute must plainly show an intent to confer that power or the municipality
cannot assume it. And the power when granted is to be construed in strictissimi juris. Any doubt or
ambiguity arising out of the term used in granting that power must be resolved against the municipality.
x x x”
The Court found that the City of Baguio can collect a license fee, but the additional imposition of P0.20
entrance fee in nightclubs was not authorized to it. As to property tax on vehicle ownership, this was
actually a municipal license fee which the municipality was not allowed to collect.

4. Vega vs. Mun. Board of the City of Iloilo, 94 Phil. 949 (1954)

In Vega vs. Mun. Board of the City of Iloilo, supra, another ordinance was nullified for lack of authority to
pass the same. This was an action for a Declaratory Relief to test the validity of a municipal ordinance of
the City of Iloilo requiring all motor vehicles using the streets of the city to submit them for inspection
by its police department, secure a certification of their roadworthiness and pay corresponding
inspection fees. Since the issue was one of law, the parties submitted the case on the basis of the
pleadings. This ordinance was declared invalid by the lower court. The City appealed. Held: Ordinance
declared invalid.

The city had no power to pass this ordinance because the duty to inspect motor vehicles at the time was
with the Director of Public Works. The High Court noted:

“Municipal corporations in the Philippines are mere creatures of Congress. As such, said corporations
have only such powers as the legislative department may have deemed fit to grant them. By reason of
the limited powers of local governments and the nature thereof, said powers are to be construed strictly
and ‘any doubt or ambiguity arising out of the term used in granting’ said powers ‘must be resolved
against the municipality. x x x (Cu Unjieng vs. Patstone, 42 Phil. Pp. 818, 830; Pacific Commercial Co. vs.
Romualdez, 49 Phil. 917, 924; Batangas Transportation Co. vs. Provincial Treasurer of Batangas, 52 Phil.
Pp. 190, 196)’ x x x x x x x x x Accordingly, the lower court did not err in declaring that the ordinance in
question is ultra vires.”

5. Morcoin Co., Ltd. vs. City of Manila, 1 SCRA 310 (1961)

In Morcoin Co., Ltd. vs. City of Manila, supra, the High Court nullified an ordinance for being oppressive
as it charged a license fee on a pinball machine more than what it can earn in a year. In 1954, upon the
urgings of the City Mayor that “pinball machines contribute to moral delinquency” the municipal board
of the City of Manila passed an ordinance increasing the license fee for the installation and operation of
a pinball machine of P300 yearly. The owner of these machines sued to nullify the ordinance and was
sustained by the lower court. The City appealed. Held: Decision affirmed. The High Court found that:

“There can be no question that Sections 773 and 774 of Ordinance No. 1600, as amended by Ordinance
No. 3628, were enacted pursuant to section 18 (1) of the Revised Charter of the City of Manila (Republic
Act No. 409 as amended), which provides that the Municipal Board has the legislative power ‘to regulate
and fix the license fees for x x x x slot machines x x x x.’ The power to regulate and impose license fee for
the operations of slot machines—which include juke box machines, pinball machines and other coin-
operated contrivances—should not, however, be construed as including the power to impose license
taxes for revenue purposes.”

It also found that the jukebox operator would not make any profit if they have to pay P300 yearly fee
which amount was prohibitory and oppressive. It was shown by the operators that the machine earned
only some P211 per year. The High Court declared: “In view of these circumstances, it is excessive and
cannot be justified. In this connection, it should be stated that although the presumption is always in
favor of the validity or reasonableness of the ordinance, such presumption must nevertheless be set
aside when the invalidity or unreasonableness appears on the face of the ordinance itself or is
established by proper evidence.”

6. Sarmiento vs. Belderol, 2 SCRA 477 (1961)

In Sarmiento vs. Belderol, supra, an ordinance was declared null and void for being partial. This is an
appeal from a decision of the Court of First Instance of Bohol declaring valid a municipal ordinance
amending a previous ordinance abolishing the distance required from a cockpit to a school or an
educational institution. In the later part of the 1950’s, the mayor of Tagbilaran approved the application
of a certain individual to operate a cockpit in said city. This approval violated a then existing ordinance
prohibiting cockpits within 50 meters away from schools, church, hospital, public building, etc.

Petitioner, a cockpit operator protested this approval and went at great lengths to pursue his protest
from the office of the District Engineer, to the municipal council and even to the Office of the President.
When the matter was acted upon by the Office of the President through the Executive Secretary, the
municipal council passed an ordinance abolishing the distance requirement for cockpits. This was
challenged by petitioner before the lower court which sustained the ordinance. Petitioner appealed.

Held: The ordinance was declared null and void. The High Court found that the basic law RA No. 1224
amending RAs 938 and 979 set forth the distance and did not empower the municipal council to abolish
the same. It also noted that the amending ordinance was tailor-made for a particular person and that
there was a prior application to also operate a cockpit with the same limitations on distance but it was
denied. High Court concluded that the challenged amending ordinance which was even made
retroactive to accommodate a particularly cockpit operator was “null and void for being partial” (U.S. vs.
Abendan, 24 Phil. 165; See also Pedro vs. Provincial Board of Rizal, 56 Phil. 123).

7. Pampanga Bus Co., Inc. & La Mallorca vs. Mun. of Tarlac, 3 SCRA 816 (1961)

Pampanga Bus Co., Inc. & La Mallorca vs. Mun. of Tarlac, supra, was cited in the decision under
Annotation. The High Court in this case nullified an ordinance directing the transfer of a bus terminal
within the city to elsewhere. This was an appeal from the decision of the Regional Trial Court of Tarlac
declaring invalid municipal ordinance and resolution ordering the transfer of a bus terminal from its site
in the municipality to another area in the city. The bus companies owning the terminal filed a complaint
to declare null and void these ordinance and resolution passed by the municipal council of Tarlac, Tarlac.
These local legislations contained provisions prohibiting the establishment of a bus terminal along a
certain street in the municipality and those already there were given a period within which to relocate
to some other places.

Plaintiffs bus companies which jointly operated a bus terminal along the street in question charged that
the “ordinance is unreasonable, discriminatory, oppressive and unjust and was enacted to harass the
plaintiffs who are engaged in the operation of a legitimate business; and that the plaintiffs’ bus terminal
is not a nuisance and cannot be summarily abated.” The defendant countered that the ordinance was a
valid exercise of the powers granted to it by Section 2238 of the Revised Administrative Code, Section
17(j) of the Public Service Act, Commonwealth Act No. 146, as amended by Commonwealth Act No. 454
and Republic Act No. 178, and Section 71 of the Revised Motor Vehicle Law, Act No. 3992.

The trial court held “that the ordinance in question has no bearing whatsoever on the health, safety or
general welfare of the inhabitants of the defendant municipality”—“nor does it tend to accomplish
anything to the benefit of the public in this respect”; that the said ordinance was not a zoning ordinance
for it did not establish a residential or industrial zone or any other zone; and that the ordinance in
question was discriminatory, unreasonable and oppressive and enacted not to protect or promote the
welfare of the inhabitants of the defendant municipality. Held: Decision affirmed. The High Court
reasoned:

“Tested by the provisions of section 2238 of the Revised Administrative Code, the ordinance in question
x x x x x x falls short of the standard required of ordinances adopted pursuant thereto. As found by the
trial Court, the appellees’ bus terminal building is built of strong materials and equipped with modern
toilet faculties; that the appellees employ a janitor who cleans the premises and the sidewalk in front of
the building; that the bus terminal building is built on and occupies an area big enough to allow the
ingress and egress of the appellee’s buses x x x x For the foregoing reasons the requirement that an
ordinance enacted by a Municipal Council under the general welfare clause should be to ‘provide for the
health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and
convenience of the municipality and the inhabitants thereof, and for the protection of property therein’
has not been satisfied in the adoption of Ordinance No. 1. Its validity cannot be sustained and upheld.

xxx x x x”

The High Court also found that this attempt to move the terminal encroached upon property rights:

“Needless to say the regulations for the conduct, control and operation of garages that a Municipal
Council may promulgate should not encroach upon the legitimate and lawful exercise by the citizens of
their property. Ordinance No. 1 constitutes an unwarranted and unlawful curtailment of the exercise of
that right.”

8. Lacson vs. Bacolod City, 4 SCRA 1001 (1962)

In Lacson vs. Bacolod City, supra, the High Court struck down an ordinance imposing fees on theater
owners as ultra vires. The City of Bacolod passed ordinances imposing fees/taxes on theatre owners as
annual fee of P1,500 and tax on each theater ticket of P0.05 and P0.10. This was questioned by theater
owners as ultra vires and void. After trial the lower court upheld the ordinance imposing the annual fee
but declared ultra vires and invalid the imposition of additional tax on theater tickets. Held: The decision
of the trial court, affirmed.

The ordinance imposing annual fee of P1,500 was valid for “continuous regulation and police
surveillance” while the movies were being shown. As to the other ordinance, “In connection with the
ordinance imposing a tax on each theater admission ticket (P0.05 and P0.10), the trial court applied and
followed the decision of this Court to the effect that such exactions are in reality taxes that cannot be
collected in the guise of license fees, especially where other substantial fees are already imposed on
theatres.”

As to the claim that the imposition was based upon the general welfare clause to raise funds for
education purposes, the High Court quoted with approval the holding of the lower court that:

“There can be no divergence of thought as to the wisdom and desirability of any and all solicitude for
education; literacy of the people is indeed one of the primary concerns of the Government; but the
General Welfare Clause cannot be resorted to as a source of the power to tax.”
9. Ermita-Malate Hotel & Motel Operators Asso., Inc. vs. City Mayor of Manila, 20 SCRA 849 (1967)

In Ermita-Malate Hotel & Motel Operators Asso., Inc. vs. City Mayor of Manila, supra, the High Court
sustained the constitutionality of an ordinance regulating the operations of hotels and motels in the City
of Manila. In 1963, the Manila City Council passed a resolution charging fees for hotels and motels in the
city and directing them to require guests to fill up registration forms within public view and to supply
numerous details as to the personal circumstances of the guests and their companions, if any.

This ordinance was assailed by the Association of hotel and motel operators, among others, as
“unconstitutional, and void again on due process grounds, not only for being arbitrary, unreasonable or
oppressive but also for being vague, indefinite and uncertain, and likewise for the alleged invasion of the
right to privacy x x x.” The trial court held that the ordinance was unconstitutional. The City appealed.

Held: Decision reversed. Ordinance is constitutional. The High Court enjoined that: “The judiciary should
not lightly set aside legislative action when there is not a clear invasion of personal or property rights
under the guise of police regulation.” It further declared that: “We are asked to declare it void on the
ground that the specific method of regulation prescribed is unreasonable and hence deprives the
plaintiff of due process of law.” It concluded that there was no denial of due process in the procedure
required by the resolution.

10. City of Ozamiz vs. Lumapas, 65 SCRA 33 (1975)

In City of Ozamiz vs. Lumapas, supra, the High Court upheld the validity of an ordinance imposing P1.00
parking fee in the city since such amount was merely for regulation. This was an appeal by certiorari of
the decision of the then Court of First Instance declaring null and void a municipal ordinance “imposing
parking fees for every motor vehicle parked on any portion of the existing parking space in the City of
Ozamiz.” The validity of this ordinance was challenged by a bus operator who paid under protest the
collection of P1.00 of his buses for parking in a designated parking space in the city. The city appeared
during the hearing arguing that its charter authorized the municipal board to regulate the use of city
streets which carried with it the power to impose fees and the Local Autonomy Law empowered local
governments to impose taxes and fees except those enumerated therein and parking fee was not one of
the exceptions.

Held: The Ordinance was declared valid being minimal in amount which showed that it was not for
revenue but for regulation. The High Court in this case also reiterated the settled principle about the
limited powers of LGUs: “The rule is well-settled that municipal corporations, being mere creatures of
the law, have only such powers as are expressly granted to them and those which are necessarily
implied or incidental to the exercise thereof, and the power to tax is inherent upon the state and it can
only be exercised by Congress, unless delegated or conferred by it to a municipal corporation. As such,
said corporation has only such powers as the legislative department may have deemed fit to grant. By
reason of the limited powers of the local governments and the nature thereof, said powers are to be
construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said
powers must be construed against the municipality.”

The High Court found that the city was clothed with the power to regulate city streets pursuant to its
charter. It held that the fee imposed was not a toll fee but actually a parking fee.
“As adverted to above, the Municipal Board of Ozamiz City is expressly granted by the Charter the
power to regulate the use of its streets. The ordinance in question appears to have been enacted in
pursuance of this grant. The parking fee imposed is minimal in amount, the maximum being only P1.00 a
day for each passenger bus and P1.00 for each cargo truck, the rates being lower for smaller types of
vehicles. This indicates that its purpose is not for revenue but for regulation.”

11. De la Cruz vs. Paras, 123 SCRA 568 (1983)

In De la Cruz vs. Paras, supra, a case also cited and quoted by the High Court in the case under
Annotation, a municipal ordinance prohibiting the putting up of nightclubs in a municipality was nullified
for being unreasonable. This case was a challenge to the validity of a municipal ordinance in Bocaue,
Bulacan which had the effect of altogether prohibiting the establishment of nightclubs and cabarets
within the municipality. Pursuant to the ordinance, the municipality refused to issue business permits
for this kind of establishments. This ordinance was assailed before the lower court as void and
unconstitutional for it prohibited a lawful business, occupation or calling. It was further assailed as
violative of due process and equal protection of the laws, among other legal infirmities. These
allegations were denied by the municipality claiming that it was authorized by law to pass this kind of
legislation and that property rights were subordinate to public interests. The lower court sustained the
constitutionality and validity of the ordinance. Hence, this resort to the High Court.

Held: The Ordinance was declared null and void. The High Court contended that reliance on police
power was insufficient to sustain the validity of the ordinance:

“x x x x It is a general rule that ordinances passed by virtue of the implied power found in the general
welfare clause must be reasonable, consonant with the general powers and purposes of the
corporation, and not inconsistent with the law or policy of the State. If night clubs were merely then
regulated and not prohibited, certainly the assailed ordinance would pass the test of validity.”

12. Villacorta vs. Bernardo, 143 SCRA 480 (1986)

In Villacorta vs. Bernardo, supra, the High Court also nullified a city ordinance which required subdivision
plans to be submitted to the City Engineer before submission to the proper government agency for
approval, for being unreasonable and in contravention the law. This was a Petition for Certiorari on the
decision of the Court of First Instance of Pangasinan declaring null and void an ordinance passed by the
municipal board of Dagupan City. This ordinance required that before submission of subdivision plans of
lots in the City, before submission to the Bureau of Lands/Land Registration Commission, these must
first be submitted to the City Engineer to check if there was any encroachment upon public domain and
zoning regulations were followed. A service fee of P.30 per square meter was imposed and violation
thereof was punishable with fine or imprisonment.

After hearing, the trial court declared the ordinance null and void since it conflicted with Section 44 of
Act No. 496 which did not require prior submission of such plans to the City Engineer.

Held: Decision affirmed. Ordinance null and void.

“We therefore urge that proper care attend the exercise of the police power lest it deteriorates into an
unreasonable intrusion into the purely private affairs of the individual. The so-called ‘general welfare’ is
too amorphous and convenient an excuse for official arbitrariness.”
xxx

“This advice is especially addressed to the local governments which exercise the police power only by
virtue of a valid delegation from the national legislature under the general welfare clause. In the instant
case, Ordinance No. 22 suffers from the additional defect of violating this authority for legislation in
contravention of the national law by adding to its requirements.”

13. Sangalang vs. IAC, 176 SCRA 719 (1989)

In Sangalang vs. IAC, supra, the High Court sustained the act of the city to open some streets inside a
subdivision to ease traffic congestion in the area. This case involved the opening of Jupiter and Orbit
Sts., Bel Air Village, at Makati City. Prior to 1977, studies were made on the feasibility of opening streets
in Bel Air Village to decongest traffic in the area. This eventually led to the opening of Jupiter and Orbit
streets which was challenged by residents therein through a suit. The residents claimed private
ownership of the streets and their opening to public traffic amounted to deprivation of property without
due process of law. The Court of Appeals ruled that the Mayor had no legal right to open these streets
to traffic since the titles thereto did not contain restrictions under Sec. 50 of PD No. 1529.

On the appeal, the issue was whether the Mayor was empowered to legally open said streets to traffic.
Held: Mayor was so empowered.

The High Court citing Ortigas & Co. Limited Partnership vs. FBTC (94 SCRA 533) held that non-
impairment of contract in the torrens title is not absolute and “must be reconciled with the legitimate
exercise of police power.” It also cited its decision of Vda. de Genuino vs. CAR, et al., were it declared:
“We do not see why public welfare when clashing with the individual right to property should not be
made to prevail through the state’s exercise of its police power.”

It also held that the demolition of the gates of Orbit and Jupiter Sts., to open these streets to traffic did
not amount to deprivation of property without due process of law or expropriation without just
compensation. Police power has been defined as the “state authority to enact legislation that may
interfere with personal liberty or property in order to promote the general welfare.”

It also declared that police power may be exercised without provision for just compensation, unlike the
power of imminent domain. The barriers to the streets were treated as nuisance which may be abated
under Art. 699 of the Civil Code.

14. Solicitor General vs. Metropolitan Manila Authority, 204 SCRA 837 (1991)

This case arose from letters-complaint of certain individuals as well as drivers and motor vehicle
operators’ association sent to the High Court protesting the continued confiscation of plates and driver’s
licenses for traffic violations in spite of the holding in Metropolitan Traffic Command, West Traffic
Division vs. Hon. Gonong, 187 SCRA 432 (1990). It appears that in 1991 the Metropolitan Manila
Authority passed Ordinance No. 11 authorizing its Traffic Operations Center to confiscate plates of
vehicles illegally parked or obstructing traffic in Metro-Manila.

When asked to Comment, the MMA argued that its action was pursuant to EO 392 which vested its
Council the “exercise of its law-making powers.” It explained that since the previous confiscations of
plates were declared illegal pursuant to Gonong, Ordinance No. 11 was passed as statutory authority
thereof. It also pointed out that collateral attack through mere letters-petitions was improper. Direct
action challenging the validity of the ordinance should have been filed.

The Solicitor General also contended that the ordinance was null and void being an invalid delegation of
legislative power. It violated “PD 1605 which does not permit and so impliedly prohibits removal of
license plates and confiscation of driver’s license.”

Held: Ordinance null and void. The High Court held:

“The measures in question are enactments of local governments acting only as agent of the national
legislature. Necessarily, the acts of these agents must reflect, and conform to the will of their principal.
To test the validity of such acts in the specific case now before us, we apply the particular requisites of a
valid ordinance as laid down by the accepted principles government municipal corporations.”

“According to Elliot, a municipal ordinance, to be valid: 1) must not contravene the Constitution or any
statute”; x x x

“A careful study of the Gonong decision will show that the measures under consideration do not pass
the first criterion because they do not conform to existing law. The pertinent law is PD 1605. PD 1605
does not allow either the removal of licenses plates or the confiscation of driver’s licenses for traffic
violations committed in Metropolitan Manila.”

The High Court reproduced this law and demonstrated that there was indeed no such authority. It only
mentioned of imposition of fines but never confiscation of plates or driver’s license.

IV. The Case Under Annotation, Lucena Grand Central Terminal Inc. vs. JAC Liner Inc., supra.

The decision of Lucena Grand Central Terminal Inc. vs. JAC Liner, Inc. supra, came at a most opportune
time. As stated at the outset, numerous bus operators in the country particularly in Mindanao have
been reluctantly bearing additional financial burden in the form of daily “terminal fees” for their buses
from LGUs owning and operating “common terminals.” The ruling in this case may ease their burden if it
applies to their situation. Hence, let us discuss this case.

The facts are simple but the issues are of crucial importance to land transport operators. Through city
ordinances, Lucena City, Province of Quezon, allowed the Lucena Grand Central Terminal, Inc. (Lucena
Grand Central, for brevity) to construct and operate a public utility terminal for use of public utility
vehicles that enter Lucena City and more:

First, there was Ordinance No. 1631 granting franchise to the Lucena Grand Central to construct,
operate and maintain a common bus-jeepney terminal.

Second, there was further Ordinance No. 1778 purportedly aimed to regulate entry to the city of buses,
mini-buses and jeepneys but the latter were actually “prohibited from entering the city”; other
terminals in the city were “declared inoperable”; these public utility vehicles were “directed to proceed
to the Common Terminal” to load and unload passengers; that “no other terminals shall be situated
inside or within the City of Lucena; all public utility vehicles were enjoined to use the Grand Central
which was “the officially sanctioned common terminal for the City of Lucena”; and finally, this ordinance
anointed the Grand Central as “the permanent common terminal” for the city.
The avowed aim of these ordinances was “towards alleviating traffic congestion alleged to have been
caused by the existence of various bus and jeepney terminals within the city.”

JAC Liner, Inc., one of the bus companies operating a bus service passing through or terminating at
Lucena City and with a bus terminal in the city questioned these ordinances before the Regional Trial
Court therein. After the parties submitted their respective memoranda, the trial court found that: a)
Ordinance No. 1631 was a valid exercise of police power insofar as the city granted franchise to Grand
Central; b) its Sec. 4 (c) as invalid and ultra vires because it foreclosed grant to third parties the privilege
to operate a terminal in the city similar to that of the Lucena Grand Central; and Ordinance No. 1778 as
null and void for being an invalid, oppressive and unreasonable exercise of police power particularly the
provisions declaring other terminals “inoperable,” no other terminals shall be situated inside the city,
and the Lucena Grand Central was the “permanent common terminal” with the exclusive franchise given
by the Sangguniang Panlungsod.

A direct appeal was initially made to this Honorable Court but it referred the case to the Court of
Appeals since “no special and important reason having been cited for it to take cognizance thereof in the
first instance.” The Court of Appeals affirmed the trial court decision. Eventually, this case was brought
to the High Court for final resolution. Held: The appeal petition denied.

In resolving the issue of constitutionality of the ordinances, the High Court came out with a formula in
testing lawful exercise of police power: a) lawful subject and b) lawful method. The first test, lawful
subject, refers to the goal or rationale of the ordinances which was “relieving traffic congestion in the
City of Lucena, they involved public interest warranting the interference of the State.” The High Court
found that the first test was satisfied.

Then as to the second test, lawful method, the High Court found the ordinances to be wanting. The
corollary question was whether the means to attain “the professed objective were reasonably necessary
and not unduly oppressive upon individuals.” It noted that other bus operators with terminals within the
city “are thus compelled to close down their existing terminals and use the facilities of the petitioner.”
The High Court found that the ordinances were “characterized by overbreadth. They go beyond what is
reasonably necessary to solve the traffic problem. Additionally, since the compulsory use of the terminal
operated by petitioner would subject the users thereof to fees, rentals and charges, such measure is
unduly oppressive, as correctly found by the appellate court.”

V. The Ordinances/Resolutions Passed By Various Local Government Units in Mindanao

As stated at the outset, this decision of Lucena Grand Terminal, Inc. vs. JAC Liner Inc., supra was a
welcome development to these bus operators in Mindanao who are compelled to use every common
terminal in every town/city traversed by their buses. Let us retrace how these local issuances were
issued:

1. The pertinent facts:

a) Several bus operators were granted franchises/CPCs for numerous number of buses on various routes
in Mindanao traversing and/or passing towns and cities therein until these buses reach their final
termini;
b) Because of the number of units they operate and the distance covered by their routes, some of them
have put up their own terminals in major towns and cities to gather their passengers and to undertake
repairs on their buses;

c) Then, these LGUs constructed their respective municipal or city terminals for all buses, jeepneys and
other public utility vehicles to be operated by the former;

d) Thereafter, these LGUs passed uniform ordinances with the declared title and purpose of regulating
the establishment of these bus/jeepney terminals. However, these ordinances also contained provisions
requiring bus and other transport operators to direct their public utility vehicles to enter the terminals
and pay fees, which were either denominated as “entrance fees,” “parking fees” or “terminal fees”
ranging from P10, P15, P20, or P40 per unit or bus.

e) As of 2003, no less than 73 LGUs passed almost uniform ordinances requiring mandatory use of their
respective common terminals by public utility vehicles and charging fees in varying amounts. By this
time these LGUs with such ordinances have considerably increased in number;

f) Thus on a particular bus route most of the towns/cities traversed have these common terminals and
similar ordinances. Trips are delayed and the bus operators continue to pay these fees.

g) The concern of bus operators particularly in Mindanao (there were also reports that some LGUs in
Luzon have caught the virus, so to speak, and have also passed similar ordinances) was to have these
ordinances declared invalid or null and void by the court/s.

2. Typical ordinances

a) Resolution—Municipality of Valencia, Bukidnon

“RESOLUTION NO. 97-249

A RESOLUTION REGULATING THE ESTABLISHMENT OF BUS TERMINALS AND ITS IMPLEMENTING RULES
AND GUIDELINES FOR THE OPERATION, CONTROL AND MAINTENANCE OF THE SAME X X X

CHAPTER 1

xxx

xxx

Section 17. Entrance Fees—There shall be collected from different kinds of transportation vehicles
entering the public terminal with the following entrance fees:

1.

PUB: small (1-20) ........................

P10.00

Medium (20-40) ..........................


15.00

Large (40-40) ..............................

20.00

xxxx

xxxx

Section 18. Entrance Fees.—All transportation utility vehicles coming from south routes and north
routes of Bukidnon or from any point or place in Mindanao shall be required to load and unload
passengers only in legally designated areas and in the public bus terminal.” (underscoring supplied)

xxx

Section 22. Any driver, conductor or helper of vehicles who fails to pay the entrance fee shall not be
allowed to pass through the exit instead return to the bus terminal and secure official receipt.”

217

VOL. 452, FEBRUARY 23, 2005

217

Overbreadth: Unreasonable Ordinances

b) Resolution—Municipality of Don Carlos, Bukidnon—

“RESOLUTION NO. 94-018

AN ORDINANCE CHARGING THE RATE OF PARKING FEES OF P10.00 PUB (WITHOUT CONTRACT), P7.00
PUJ/DOUBLE TIRE; P5.00 PUJ AND P1.00 MOTORELA/CAB PER DAY/PARKING.

Section 1. Public Utilities which are utilizing the terminal, building or space thereof, as parking area are
required to pay the rate of fees per day, that:

PUB, without contract . . . . . . . . . . P10.00/parking

xxx xxx xxx

Section 3. Driver of any of those Public Utilities which shall not abide with any provision of this
ordinance shall be prohibited from parking his unit in any portion of the Bus Terminal, nor from taking
passengers therefrom. x x x x x (underscoring supplied).”

c) Ordinance—Maramag, Bukidnon—
“ORDINANCE NO. 4

Series of 1998

AN ORDINANCE REGULATING THE ESTABLISHMENT OF BUS TERMINALS AND ITS RULES AND
REGULATIONS FOR THE OPERATION, CONTROL AND MAINTENANCE OF THE SAME x x x x

xxx xxx xxx

SECTION 16. Entrance Fees.—There shall be collected from different kinds of transportation vehicles
entering the public terminal with the following entrance fees:

1. PUB small (1-20) 07.00

Medium (20-40) 07.00

Large (40-up) 10.00

xxx xxx xxx

SECTION 18. Entrance Fees.—All transportation utility vehicles coming from South routes and North
routes of Bukidnon or from any point or place in Mindanao be required to load and unload

218

218

SUPREME COURT REPORTS ANNOTATED

Overbreadth: Unreasonable Ordinances

passengers only in legally designated areas and in the public bus terminal.” (underscoring supplied)

xxx xxx xxx

PENAL PROVISIONS

Transportation

Any person or persons who shall violate any provision of this Ordinance or who shall violate the rules
and regulations promulgated under the authority of this Ordinance shall be punished by a fine of not
exceeding One Thousand Pesos (P1,000.00) or imprisonment not exceeding 6 months or both such fine
and imprisonment in the discretion of the court x x x”

VI. The effects of the implementation of the ordinances

It is not hard to assess the adverse effects of these ordinances. Of course, there is the delay in the
transport of passengers and freight due to the almost ritualistic stopovers and entries into these various
terminals. The obvious and immediate result is in the financial loss to the bus operators. The towns and
cities with these revenue-raising ordinances are virtually stringed up from one terminal to another. Then
there are several hundreds of buses that travel and pass through these towns and cities with varying
rates of impositions from P10, P15, P20 or P40 per unit per entry into these terminals. Also, these buses
operate several trips daily. On top of these, there were no less than seventy-three (73) towns and cities
as of 2003 that have been enforcing these ordinances.

If only to demonstrate the awesome and devastating effects of these ordinances, one big bus company
estimated that it was paying or “losing” between P3.8 to P4.0 million pesos a month in payments of
these “fees” pursuant to these ordinances.

VII. Position of the Bus Operators on These Ordinances

These Mindanao bus operators requested this writer and another lawyer to prepare a legal opinion on
these numerous ordinances dealing with the same subject-matter. Thereafter they came out with the
following position that:

a) The ordinances are contrary to the Constitution and the laws. Some of the specific grounds are as
follows—

i. They violated the substantive due process guarantee of the Constitution because they curtail the right
to property amounting to deprivation thereof and its profitable use or the right to pursue business or
calling;

ii. They violated the taxation provisions of the Constitution, e.g., Art. VI, Sec. 23 (1) directing that taxes
shall be uniform and equitable;

iii. They were an improper exercise of police power of local governments being ultra vires or not
authorized under the Welfare Clause (Sec. 16) and Regulation of Terminals Provisions (Sec. 447, Sec. 2,
par. 5, v) of the Local Government Code. This Code merely empowered the local governments to
“establish bus and vehicle stops and terminals or regulate the use of the same by privately-owned
vehicles which serve the public.”

b) These ordinances are also contrary to settled Jurisprudence because—

i. They did not comply with the requisites of a valid ordinance as set forth in the case of U.S vs. Abendan,
supra and related cases, namely: 1) it must not contravene the Constitution or any statute; 2) it must
not be unfair or oppressive; 3) it must not be partial or discriminatory; 4) it must not prohibit but may
regulate trade; 5) it must be general and consistent with public policy; and 6) it must not be
unreasonable;

ii. They ignored the ruling in Pampanga Bus Co., Inc. vs. Mun. of Tarlac, 3 SCRA 816, which struck down
an ordinance for trenching upon property rights (some bus operators have their own terminals in major
towns and cities);

iii. They also ignored the ruling in the case of Matalim Coconut Co., Inc. vs. Mun. Council of Malabang,
Lanao Del Sur, 143 SCRA 406, which also struck down an ordinance as inspection fee of P0.30 for each
sack of flour that passed excessive and confiscatory for it directed the collection of police through the
municipality.

If legal actions were now brought before the courts to challenge these ordinances, this case under
Annotation may be amply relied upon by the petitioners.
VIII. The Concept of Overbreadth and Some Questions

1. What is the meaning of overbreadth?

It would seem that being unreasonable and oppressive are old grounds that invalidate the ordinance
dating back to 1913 with US vs. Abendan, supra. In recent years, such grounds particularly,
unreasonableness, for invalidity, had been given a more specific name—“overbreadth.” This pertains to
the manner of attaining the purposes of the ordinance. Justice Fernando used this term “overbreadth”
in his ponencia in De la Cruz vs. Paras, 123 SCRA 569 decided in 1983, wherein an ordinance was
declared invalid because it altogether prohibited, not merely regulated, nightclubs in Bocaue, Bulacan.
The High Court explained:

“It is a general rule that ordinances passed by virtue of the implied power found in the general welfare
clause must be reasonable, consonant with the general powers and purposes of the corporation, and
not inconsistent with the laws or policy of the State. If night clubs were merely regulated and not
prohibited, certainly the assailed ordinance would pass the test of validity. In the two leading cases
above set forth, this Court stressed reasonableness, consonant with the general powers and purposes of
municipal corporations, as well as consistency with the law or policy of the state. It cannot be said that
such a sweeping exercise of a lawmaking power by Bocaue could qualify under the term reasonable. The
objective of fostering public morals, a worthy and desirable end can be attained by a measure that does
not encompass too wide a field. Certainly the ordinance on its face is characterized by overbreadth. The
purpose sought to be achieved could have been attained by reasonable restrictions rather than by an
absolute prohibition.” (Italics supplied)

From the above, overbreadth implies a measure or remedy or course of action to achieve the sought for
goal of the ordinance, that “encompasses too wide a field” and wanting in “reasonable restrictions.”

Then the decision under Annotation adopted this concept of overbreadth as set forth above:

“As in De la Cruz and Lupangco, the ordinances assailed herein are characterized by overbreadth. They
go beyond what is reasonably necessary to solve the traffic problem. Additionally, since the compulsory
use of the terminal operated by petitioner would subject the users thereof to fees, rentals and charges,
such measure is unduly oppressive, as correctly found by the appellate court.” (Italics supplied)

From the above, “overbreadth” means to “go beyond what is reasonably necessary” to solve a problem,
as in this case, the traffic problem. A check with a Black’s Law Dictionary yielded no word “overbreadth”
but only the term “Overbreadth doctrine” with the following meanings:

“Overbreadth Doctrine. Requirement that a statute be invalidated if it is fairly capable of being applied
to punish people for constitutionally protected speech or conduct. A law is void on its face if it ‘does not
aim specifically at evils within the allowable area of {government} control, but . . . . . sweeps within its
ambit other activities that constitute an exercise’ of protected expressive or associational rights.
Thomhill v. Alabama, 310 U.S. 88, 97, 60 S. Ct. 296, 84 L. Ed. 460. A plausible challenge to a law as void
for overbreadth can be made only when (1) the protected activity is a significant part of the law’s target,
and (2) there exists no satisfactory way of severing that law’s constitutional from its unconstitutional
application so as to excise the latter clearly in a single step from the law’s reach.” (Black’s Law
Dictionary, Abridged Fifth Edition, pp. 575-573)
A recent edition of this law dictionary has the following definition:

“Overbreadth doctrine—Constitutional Law.—The doctrine holding that if a statute is broadly written


that it denies free expression, then it can be stricken down on its face because of its chilling effect—
even if it also precludes acts that may legitimately be forbidden. The Supreme Court thus uses this
doctrine to invalidate a number of laws, including those that would disallow peaceful picketing or
require loyalty oaths. (Black’s Law Dictionary, Abridged Seventh Edition, p. 906).

The concept of “overbreadth” in American jurisdiction which may be deduced from the above definition
of “overbreadth doctrine” seems to have a somewhat different meaning or use in our jurisdiction
wherein “overbreadth” suggests passage/approval of remedies beyond the necessary and reasonable.
Perhaps, this different meaning is peculiar in our jurisprudence?

2. Some questions

There is another thought. If an ordinance were characterized with overbreadth and therefore
unreasonable (having applied unreasonable means or means beyond what is necessary) and/or
oppressive is the former nullified for the reason that it is unconstitutional? If so, what particular
constitutional provision is violated? In De la Cruz vs. Paras, supra., an ordinance being characterized as
“overbreadth” violated the “General Welfare Clause” of the Local Government Code because ordinances
passed under the “general welfare clause must be reasonable.” If that is so, then it violates a law (The
General Welfare Clause provision of The Local Government Code) not the Constitution.

But then, the General Welfare Clause is pursuant to the exercise of the Constitutionally inherent police
power of the legislature which it vested upon local governments? As per U.S. vs. Abendan, supra,
contravention of the Constitution and the laws is one ground and unreasonableness and
oppresssiveness are other separate grounds. The point is that for accuracy, the grounds of
unreasonableness and oppressiveness are not Constitutional grounds, like violation of due process or
equal protection of the law. However, there is a statement in the decision under Annotation that: “It is
its reasonableness, not its effectiveness, which bears upon its constitutionality.” In other words, if
reasonableness of an ordinance bears upon its constitutionality, does it mean that if an ordinance were
found unreasonable, it also means that it is unconstitutional?

Short of declaring categorically the unconstitutionality of the ordinances, the decision seems to have
abruptly ended although it was written all over it that these questioned ordinances were clearly invalid
on grounds of overbreadth, or unreasonableness (the means used “go beyond what is reasonably
necessary”) and oppressiveness (they “would subject the users thereof to fees, rentals and charges”).

IX. The Lucena Grand Central Ordinances and The Mindanao Local Government Units Ordinances

1.Features—

a) The Lucena Grand Central ordinances have the following features:

i. The initial ordinance granted franchise to a private entity to construct, establish and operate a
common terminal for bus and jeepneys entering Lucena City;

ii. Then another ordinance was passed which directed all buses and jeepneys to avail of the same; and,

iii. This ordinance also declared “inoperable” other privately owned terminals in the city;
iv. This subsequent ordinance also declared that the avowed purpose of the ordinances was to “ease
traffic congestion in the city”;

v. This subsequent ordinance made it mandatory that buses and jeepneys or any other vehicles that
enter the common terminal were charged terminal fees or similar charges for the use of said terminal;

b) The Mindanao LGUs ordinances have the following features—

a) These ordinances were passed after the LGUs concerned constructed and established common
terminals within their respective territories or particularly in the poblacion;

b) These ordinances also made it mandatory for buses and jeepneys that passed through this
municipality to enter these terminals like a ritualistic undertaking;

c) The unarticulated purpose of these ordinances was to raise revenue as the latter clearly specified
therein that “Terminal Fees” per unit were charged for these buses and jeepneys that were required to
enter/use these terminals;

d) There were penal provisions in some of these ordinances.

Can this Lucena Grand Central case, be used to abate or even nullify these ordinances of Mindanao
LGUs?

There are the Constitutional and legal defects as well as, other infirmities like ultra vires, overbreadth,
unreasonableness and oppressiveness which characterize the Lucena City and the Mindanao LGUs’
ordinances.

Perhaps, this Lucena Grand Central ruling will spawn a flurry of suits and legal actions questioning the
continued existence, validity and enforcement of these Mindanao ordinances in light of the declaration
of the High Court on the establishment, operation and mandatory use of these common terminals. We
cannot preempt the legal remedies of these bus operators. It is up to the courts to decide whether they
would benefit from this ruling.

2.Crucial Distinctions—

While there are similarities in the two (2) cases, there are also crucial differences.

a) In the Lucena Grand Central case, the common terminal is privately owned and was given by the city
an exclusive franchise; whereas in the Mindanao LGUs case, these common terminals are owned by the
municipalities or cities;

b) In the Lucena Grand Central case the avowed reason for the ordinance was “alleviating of traffic
situation in the city” whereas in the Mindanao LGUs case, the avowed purposes were to regulate the
establishment/operation of these terminal, and for the more candid purpose of charging “parking fees”
for etc. Easing of traffic congestion may not be a priority in the purposes of these ordinances because
most of the streets in these LGUs in Mindanao are not as congested as those in Metro-Manila and
nearby provinces;

c) In the Lucena Grand Central case, the private terminals in the city were declared “inoperable”
whereas in the Mindanao LGUs case, private terminals were not declared “inoperable” except that
buses/jeepneys were also compelled to go to the duly designated loading and unloading terminals of
these LGUs and pick and drop passengers therein, rendering private terminals, if any, in effect also
“inoperable”;

d) In the Lucena Grand Central case, there was no penalty for violation (at least from the ordinances
reproduced in the decision), whereas in the Mindanao LGUs case, some of the ordinances provided
sanctions/penalties for violation or refusal to avail of the terminal by parking at other places;

Hence, it is up to the Mindanao bus operators to raise the necessary legal points culled from this Lucena
Grand Central case in the event they now challenge these almost uniform ordinances.

X. Conclusion

The Lucena Grand Central case has addressed a very important concern of bus, jeepneys and other
public utility operators in the country particularly in Metro Manila. This ruling will be likely argued and
reargued every time there would be legal controversies regarding the use, operation, closure or transfer
of these bus or jeepney terminals vis-à-vis the policies of LGUs or the national government. There are
plans by the Metro Manila Commission or such government agency concerned to build a huge terminal
in Valenzuela, Metro-Manila, for buses and other public utility vehicles coming from Northern Luzon. If
that materializes, will the Northern Luzon operators be compelled to have their pubic utility vehicles use
this terminal and pay corresponding fess therefor? How about those with terminals already at the
Balintawak area or nearby areas, shall these be declared “inoperable.” What is the legal implication of
that on the exercise of property rights of these private terminal owners pursuant to Pampanga Bus Co.,
Inc. & La Mallorca vs. Mun.of Tarlac, supra?

There is also a plan to construct an Intermodal Transport Terminal for Southern Luzon buses along EDSA
near North Avenue Station Phase 2 of the Metro Rail Transit. The government would likely require
Southern Luzon buses to use this intermodal transport facility upon its completion. Will those private
bus terminals along EDSA also from the corner of Timog Avenue to corner Bonnie Serrano St. (Santolan
St.) be declared “inoperable”? There is a big private common terminal at Ali Mall, Cubao, Quezon City
presently used by Southern Luzon bus operators. Will that be ordered closed, declared “inoperable” or
declared “off-limits” to buses to compel them to use the new terminal? These bus terminals in Metro-
Manila may raise issues touching on constitutional right to due process, right to use one’s property
amounting to its deprivation, and right to pursue business or calling. And if these plans were
implemented through ordinances or issuances of the Metro-Manila Commission, it may rely upon the
Welfare Clause and the Regulation of public streets and terminals provision under Art. 447 of the Local
Government Code.

This decision of Lucena Grand Central, Inc. vs. JAC Liner, Inc., supra announced at its opening sentence
that the ordinances were challenged on constitutional grounds, namely: invalid exercise of police power;
undue taking of private property and violation of the constitutional prohibition against monopolies. But
the decision immediately went for the jugular, so to speak. It only discussed the issue of whether these
ordinances were invalid exercise of police power. The High Court tested them against the two (2)
requisites for a valid exercise of police power: a) lawful subject, and b) lawful method. The two (2) tests
or requisites must be satisfied or the ordinances are invalid. The subject or goal was valid and
commendable, easing of traffic congestion. However, the means or method used to achieve the same
suffers from overbreadth—the means applied was beyond what was reasonably necessary. In other
words, it was a kind of “overkill” or there was application of unreasonable means which even
disregarded basic rights. Thus, the ordinances were struck down for being unreasonable and oppressive.

The challenged ordinances could have been tested against the guidelines set forth in U.S. vs. Abendan,
supra, and related cases for a valid ordinance, for future guidance, namely: it must not contravene the
constitution or statute; it must not be unfair or oppressive; it must not be partial of discriminatory; it
must not prohibit and but may regulate trade; it must be general and consistent with public policy; and
it must not be unreasonable. Some of these guidelines were discussed in the decision but the issue of
undue taking of private property, as mentioned at the beginning of the decision was not. This is
important because most of these bus operators, have terminals (Respondent JAC Liner, Inc. has
terminals not only in Lucena City but also at the corner of East Avenue and EDSA, Quezon City). This
issue would be likely raised anew in the event these private terminals would be declared “inoperable,”
ordered closed or directed to be moved elsewhere. It is however hoped that this Lucena Grand Central
case shall be of immense help in resolving these contentious and nettlesome issues arising from legal
controversies attendant to these public utility vehicle terminals.

——o0o——

228 Overbreadth: Unreasonable Ordinances, 452 SCRA 193, February 23, 2005
ANNOTATION

THE LEGISLATIVE PROCESS

How a Bill Becomes a Law

By

DAVID ROBERT C. AQUINO, csse*

___________________

§ 1. Parts of a Statute, p. 621

§ 2. Title, p. 622

§ 3. Enacting Clause, p. 622

§ 4. Body, p. 622

§ 5. Provisos, p. 623

§ 6. Repealing Clause, p. 624

§ 7. Separability Clause, p. 624

§ 8. Date of Effectivity, p. 625

§ 9. Conclusion, p. 627

___________________

As the 15th Congress nearly draws to a close with the impending sine die adjournment in the middle of
next year, it is best to note the multifarious roles it has played that in one way or another shaped the
political firmament of this country.

_______________

* Atty. Aquino is a professor of law and author of several law books. In mid-2008, he was appointed as
member of the Sub-Committee on the Revision of the Rules on Criminal Procedure, Supreme Court.
Prior to returning to private practice, he occupied various Director-level positions in the government
such as in the Senate, House of Representatives, Supreme Court, PDEA.

We note that amidst the socio-political crises besetting the country today, Congress and more
particularly the Philippine Senate has with great apprehension, and at times reluctance, played the role
of arbiter, peacekeeper, leader and fiscalizer.

Apprehension and reluctance, because this is not the primary role of Congress—its role being that of
drafting and enacting laws that address the needs of an impatient nation.
Yet this primary role, more often than not, has been relegated to the sidelines in order for Congress to
discharge its other roles.

Thus, we witnessed on television and in various forms of media the much talked about impeachment
trial as well as other legislative inquiries in aid of legislation. It seems that Congress is being known more
and more as an investigator rather than a legislator.

Yet, Congress remains the legislative organ of government. Despite what other role it plays that is
drummed up into prominence by the media, Congress shall remain a maker of laws.

Thus, amid the din of excitement that was generated over the impeachment trial conducted by the
Senate and prosecuted by the Lower House, it would be best that a cursory look into the dynamism
involved in the process of lawmaking be taken.

Before any worthwhile discussion, however, on the legislative process can be made, it is necessary that
we know some of the terms involved in the legislative process as follows:

1) REPUBLIC ACT (or simply an ACT)—this is a legislative measure that has been passed by Congress
and signed into law by the President;

2) AMENDMENT—this refers to a legislative action to delete, alter or revise a bill or an act.


Amendments are introduced for several reasons. Some are proposed in response to interest groups,
executive pressure, or constituent demands. Others are intended to spark public interest, hinder
legislative action, exhibit a member’s concern, or test his sentiment for or against a bill. Some
amendments are of technical nature, while others represent substantial changes;1

3) APPROPRIATION BILL—this refers to a measure which allocates funds for agencies or programs of
the government. Usually denoted as the General Appropriations Act;2

4) BILL—this refers to a legislative measure―general or special, public or private, local, appropriation,


revenue and tariff—to effect a new statute or alter or abolish an existing one;3

5) BUDGET—this refers to a financial proposal detailing projected revenue and programmed expenses
of the government subject to Congressional approval;4

6) CERTIFIED BILL—this refers to a measure which the President attests to the necessity of its
immediate enactment to meet a public calamity or an emergency. Such bill may be voted on Third
Reading without need to wait for the 3-day period after its approval on Second Reading;5

7) CLEAN BILL—this refers to a measure that has been significantly reworded by a committee so as to
bear little resemblance to the original version that it in effect replaces the latter. In today’s Congress, it
usually refers to a new draft where the corrections have already been incorporated and the pro-

_______________

1 Sections 80 to 86, Rule XXIX, Rules of the Senate.

2 Sections 24 and 25, Article VI, 1987 Constitution.

3 Sections 59 and 60, Rule XXI, Rules of the Senate.


4 Sections 24 and 25, Article VI, 1987 Constitution.

5 Section 26(2), Article VI, 1987 Constitution.

posed provisions to be deleted have already been removed;

8) COMMITTEE—this refers to a subdivision of Congress that considers and then reports to the
chamber any measures referred to it. Big committees are divided into subcommittees that hold hearings
and investigate proposed legislation before recommending it to their full committees;6

9) COMMITTEE OF THE WHOLE—this refers to the situation where the entire Chamber resolves itself
into a committee in order to debate and discuss legislation informally;7

10) CONCURRENT RESOLUTION—this refers to a resolution passed by both houses of Congress but
does not have the power of law and does not require the President’s signature;

11) CONFERENCE COMMITTEE—this refers to a committee composed of equal number of members


from both the House of Representatives and the Senate with the purpose of forging a compromise
between the disagreeing provisions between the Senate version and House version of a particular
legislative measure. The result of such compromise is contained in a Conference Committee Report or
colloquially called a Bicam Report which is then submitted to their respective chambers for approval;8

12) CONGRESSIONAL INVESTIGATION—this refers to a mechanism or tool in which Congress,

through its committees conduct investigations or inquiries in aid of legislation;9

13) ENACTING CLAUSE—this refers to the opening phrase of a bill that points to the identity of the
promulgating authority;

14) EXECUTIVE SESSION—this refers to a meeting of the House or Senate Committee, of the entire
chamber, that only members of each may attend and usually referred to as a closed-door session;10

15) JOINT COMMITTEE—this refers to a special panel composed of members from the House and the
Senate temporarily constituted to study a particular problem or issue;

16) JOINT REFERRAL—this refers to the concurrent referral of a bill to two or more committees in
cases of overlapping jurisdiction;11

17) JOINT RESOLUTION—this refers to a resolution approved by both chambers of Congress that
becomes a law upon the signature of the President;

18) JOURNAL—this refers to the narrative record of what transpires during a plenary session of the
Legislature;12

19) LEGISLATION—this refers to the process wherein a proposed legislative measure is crafted,
deliberated upon and enacted into a statute; colloquially referred to as lawmaking;

20) LEGISLATIVE AGENDA—this refers to the prioritization of legislative measures or action of the
Legislature;

21) PERMANENT COMMITTEE—this is otherwise known as a standing committee with a permanent


jurisdiction;13
22) QUORUM—this refers to the required minimum number of members present in order that a
chamber can validly conduct business;14

23) READING OF BILLS—this refers to the recitation of bills by the appropriate officer of the Senate.
This is designed to ensure that each member is apprised of the bills pending on the floor;15

24) RECORD—this refers to the verbatim account of the deliberations of the plenary session of
Congress;16

25) SPECIAL SESSION—this refers to a session that can be called only by the President when Congress
is in recess. During a special session, any topic or subject can be discussed by Congress without any
limitation;

26) TABLE A BILL—this refers to a motion to either delay or kill a bill. It is not debatable in either
chamber. The Senate, however, employs a different language from that of the House. In the Senate, the
motion is worded to allow a bill to “lie on the table,” perhaps to be picked up at a later time;

27) VETO OVERRIDE—this refers to the mechanism that allows Congress to reverse a presidential veto
and enact a bill into law. A veto override requires a two-thirds vote of those present and voting in the
Senate and the House of Representatives17; and

28) VETO POWER—this refers to the authority of the President of the Republic to disapprove a bill
passed by Congress.18

It should be noted that there is no fixed time period attached to the life of a bill while it is pending in
Congress. There have been instances when a legislative measure takes years before it is finally enacted
into law. Some statutes, however, take a shorter time. A good comparison would be the Comprehensive
Dangerous Drugs Act of 2002 and the Anti-Money Laundering Act of 2000. It should be noted that
Congress began deliberations on the drug law way back in the Eighth Congress in 1988 but was finally
passed in 2002 but not before undergoing several incarnations and revisions. The Anti-Money
Laundering Act, on the other hand, was deliberated by the Senate in roughly a week’s time before being
enacted.

It is worth noting that the time it takes for a legislative proposal to be passed by Congress depends on a
number of factors, both external and internal.

Such external factors may be international or domestic events that necessitate the attention of our
lawmakers. The anti-climactic impeachment trial is a domestic event that had the entire populace
riveted to the proceedings. Another event that never fails to divert the attention of Congress and of the
people is the national elections. Finally, the task of appropriating the annual budget of the government
more often than not eats up the attention of legislators particularly during the end of every year.

Internal factors may be the presence of a number of equally important measures competing for the
time, effort and attention of legislators. Since Congress normally holds sessions in the afternoon of
Mondays, Tuesdays, Wednesdays, and at times Thursdays, such limited time has to be allocated to
competing interests and issues.
As of last year, the number of measures now pending with the Senate alone stands at a staggering 2,098
bills and 319 resolutions while those pending at the House of Representatives number more than 4,500
bills!

Yet, despite the multifarious nature of its tasks, its primary mandate is to enact laws as delegated no
less under the Constitution.

The pertinent provisions under the Constitution on its lawmaking functions are reproduced below:

“SECTION 25. (1) The Congress may not increase the appropriations recommended by the President
for the operation of the Government as specified in the budget. The form, content, and manner of
preparation of the budget shall be prescribed by law.

“(2) No provision or enactment shall be embraced in the general appropriations bill unless it relates
specifically to some particular appropriation therein. Any such provision or enactment shall be limited in
its operation to the appropriation to which it relates.

“(3) The procedure in approving appropriations for the Congress shall strictly follow the procedure for
approving appropriations for other departments or agencies.

“(4) A special appropriations bill shall specify the purpose for which it is intended, and shall be
supported by funds actually available as certified by the National Treasurer, or to be raised by a
corresponding revenue proposed therein.

“(5) No law shall be passed authorizing any transfer of appropriations; however, the President, the
President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the Constitutional Commissions may, by law, be authorized to augment any item in the
general appropriations law for their respective offices from savings in other items of their respective
appropriations.

“(6) Discretionary funds appropriated for particular officials shall be disbursed only for public purposes
to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law.

“(7) If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations
bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be
deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by
the Congress.

“SECTION 26. (1) Every bill passed by the Congress shall embrace only one subject, which shall be
expressed in the title thereof. (2) No bill passed by either House shall become a law unless it has passed
three readings on separate days, and printed copies thereof in its final form have been distributed to its
members three days before its passage, except when the President certifies to the necessity of its
immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no
amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and
the yeas and nays entered in the Journal.

“SECTION 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the
President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with
his objections to the House where it originated, which shall enter the objections at large in its Journal
and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House
shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it
shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall
become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the
names of the Members voting for or against shall be entered in its Journal. The President shall
communicate his veto of any bill to the House where it originated within thirty days after the day of
receipt thereof; otherwise, it shall become a law as if he had signed it. (2) The President shall have the
power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall
not affect the item or items to which he does not object.”

Simply put, the legislative life of a measure or a bill, as it is commonly called, begins with the filing of the
same by the lawmaker. Once filed, it is then calendared for First Reading.

First Reading is the process where the bill’s title is read in plenary session and referred to the
appropriate committee.19 Once in the committee level, the bill is scrutinized through public hearings
where arguments by advocates and those in opposition of the measure are heard.

After the public hearings are terminated a Committee Report is then prepared and transmitted to the
floor for Second Reading.

During Second Reading,20 the bill undergoes sponsorship, interpellation and amendments.

Sponsorship is where the essential and salient features of the bill are presented as well as to underscore
the rationale for the bill’s enactment.

The period of interpellations is where debate over the bill takes place.21 This is where arguments of
lawmakers in opposition to and those in favor of the bill’s passage are heard.

After the period of interpellations, the period of amendments come in. This period is divided into two
stages—the period of committee amendments and the period of individual amendments.

Committee amendments are those formulated by the Committee or Committees that reported out the
bill. Said amendments are usually included in the committee report.22

Individual amendments on the other hand are amendments proposed by the individual legislators in
plenary session.

Such amendments may or may not be accepted by the sponsor of the bill. If a deadlock ensues, a
division of the house will be called.

After the conclusion of the period of individual amendments, the bill is again read on THIRD READING
and voted upon.23

Once passed, it is then transmitted to the other chamber and it will undergo the same procedure as it
did in the chamber that transmitted it.

In the event the other chamber has a similar bill and the two (2) measures—the Senate version and
House version, have conflicting provisions, a Bicameral Conference will be constituted in order to thresh
out the conflicting provisions of both bills.
After its conclusion, a Bicameral Conference Committee Report will be transmitted to both houses of
Congress for its approval. The Bicameral Report will contain the reconciled version of the bill.24 Once
passed by Congress, the “enrolled” bill, enacted by both Houses of Congress and certified by its officials,
is then transmitted to the Office of the President for consideration. Note that the President of the
Republic of the Philippines may approve or reject the bill or allow the same to lapse into law.

§ 1. Parts of a Statute

In its simplest form, a statute has a Title; an Enacting Clause; the Body which contains the bulk of the
law itself; a Repealing Clause; a Separability Clause; and the Date of Effectivity.

§ 2. Title

The title provides for the general subject matter of the legislative measure.

It informs the public as well as the legislator and any other interested party of the contents, purpose and
area or subject being legislated upon.

A typical Title is given below:

AN ACT TO INSTITUTIONALIZE THE USE OF AN ALTERNATIVE DISPUTE RESOLUTION SYSTEM IN THE


PHILIPPINES AND TO ESTABLISH THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION, AND FOR OTHER
PURPOSES

Although the Title does not have to be so comprehensive as to encompass the entire provisions of the
law, it must however, be clearly indicative of the subject matter of the law as to properly apprise the
legislators and the general public of the nature and purpose of the law.

§ 3. Enacting Clause

The enacting clause declares the source of the promulgation and is usually stated as follows:

“Be it enacted by the Senate and House of Representatives in Congress assembled”

Thus, from the enacting clause given above, the promulgating body is Congress which under the 1987
Constitution is the sole organ of government that is delegated the power to legislate and enact laws.

§ 4. Body

The main provisions of the law are lumped into what we call the Body of the statute. It is here where we
find the definition of terms, the policy declaration of the state, the penal clauses, the prohibited acts,
the rights and duties of parties and the like.

An example of a provision that forms part of the body of a statute is given below taken from the ADR
Law:

“SEC. 5. Liability of ADR Providers/Practitioners.—The ADR providers and practitioners shall have the
same civil liability for acts done in the performance of their duties as that of public officers as provided
in Section 38(1), Chapter 9, Book I of the Administrative Code of 1987.”
It should be further noted that the body of a law may be divided into chapters or articles or sections and
further subdivided into subsections or subparagraphs depending on the styling adopted by Congress at
the time of its enactment.

§ 5. Provisos

A proviso qualifies the operation or effectivity of a particular provision of law. It has to be complied with
or observed in order that the particular provision can be given full application as can be seen in the
example below:

“SEC. 23. Confidentiality of Arbitration Proceedings.—The arbitration proceedings, including the


records, evidence and the arbitral award, shall be considered confidential and shall not be published
except (1) with the consent of the parties, or (2) for the limited purpose of disclosing to the court of
relevant documents in cases where resort to the court is allowed herein: Provided, however, That the
court in which the action or the appeal is pending may issue a protective order to prevent or prohibit
disclosure of documents or information containing secret processes, developments, research and other
information where it is shown that the applicant shall be materially prejudiced by an authorized
disclosure thereof.” (Emphasis supplied)

§ 6. Repealing Clause

Usually, under established rules of statutory construction, a newly enacted law supersedes an old law.
Leges posteriors contrarias abrogate.25 This is premised on the assumption that the prevailing statute is
the more recent and more reflective and in tune with the intention of the legislature as well as
consistent with the provision of the Civil Code.26

The standard repealing clause used today by Congress is given below:

“Sec. XX. Repealing Clause.—All laws, decrees, executive orders, rules and regulations which are
inconsistent with the provisions of this Act are hereby repealed, amended or modified accordingly.”

There are certain laws, however, that does not repeal its predecessors but modifies them.

Moreover, there are other laws that preserve or maintain the effectivity of its predecessor laws as can
be seen below in the repealing clause of the ADR Law:

“Sec. 31. Repealing clause.—The provisions of chapters one and two, Title XIV, of the Civil Code shall
remain in force. All other laws and parts of laws inconsistent with this Act are hereby repealed. If any
provision of this Act shall be held invalid the remainder that shall not be affected thereby.” (Emphasis
supplied)

§ 7. Separability Clause

The function of a separability clause in a statute is very important. It serves to protect other provisions
within a statute in the event that a part of a statute is judicially declared as unconstitutional.

As such, the separability clause manifests the legislative intent that other portions of the statute not
affected by such judicial declaration of unconstitutionality are still considered in force and effect.

One recent example is the declaration of the Supreme Court in the case of Macalintal v. COMELEC27
that the provisions under the Absentee Voting Law providing for Oversight Functions of Congress over
the Implementing Rules and Regulations (IRR) to be implemented by the Commission on Elections is
unconstitutional being violative of the independent nature of the latter.

A standard separability clause is given below:

“SEC. XX. Separability Clause.—If, for any reason or reasons, any portion or provision of this Act shall
be held to be unconstitutional or invalid, all other parts or provisions not affected shall thereby continue
to remain in full force and effect.”

§ 8. Date of Effectivity

Legislative enactments usually take effect fifteen days after its complete publication in the Official
Gazette or newspaper of general circulation pursuant to the provision of the Civil Code.28

Other laws provide for their own dates of effectivity such as the Local Government Code as follows:

“SEC. 536. Effectivity Clause.—This Code shall take effect on January first, nineteen hundred ninety-
two, unless otherwise provided herein, after its complete publication in at least one (1) newspaper of
general circulation.”

Prior legislative enactments and Presidential Decrees sported a short effectivity clause which provided
that such law shall take effect upon approval. This clause—“take effect upon its approval”—sparked a
long debate which reached the highest tribunal. Some sectors believed that this phrase allowed the law
to take effect even if no such publication was made.

This issue was finally laid to rest in the landmark case of Tañada v. Tuvera,29 where the Supreme Court
held that publication is indispensable, but the legislature may in its discretion provide that the usual
fifteen-day (15) period shall be shortened or extended.

Moreover, the ponente of the decision noted that it is not correct to say that under the disputed clause,
publication may be dispensed with altogether.

The reason is that such omission would offend due process insofar as it would deny the public
knowledge of the laws that are supposed to govern it.

Further, it also stated that the conclusive presumption that every person knows the law, which of course
presupposes that, the law has been published if the presumption is to have any legal justification at all.

It is no less important to remember that the Bill of Rights recognizes “the right of the people to
information on matters of public concern,” and this certainly applies to, among others, and indeed
especially, the legislative enactments of the government.

The Supreme Court then held that all statutes, including those of local application and private laws, shall
be published as a condition for their effectivity, which shall begin fifteen days after publication unless a
different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the
exercise of legislative powers whenever the same are validly delegated by the legislature or, at present,
directly conferred by the Constitution.
Moreover, administrative rules and regulations must also be published if their purpose is to enforce or
implement existing law pursuant also to a valid delegation.

Finally, the High Court held that publication must be in full or it is no publication at all since its purpose
is to inform the public of the contents of the laws.

In cases of conflict in the word and meaning of the provisions of law and in order to ascertain the intent
and purpose of the law, a legislative history of each statute is prepared by Congress.

§ 9. Conclusion

In summary, the legislative process is nothing more than the life of a bill while it is pending in Congress
until it becomes a law. Its length of stay in Congress will largely depend on its nature and importance as
well as the prevailing national mood at any given time. There have been some bills that took years
before it became law while there were some measures that took a much shorter time.

What is important that despite the various roles that Congress has to play, its mandate still remains that
of a lawmaker―all other functions it performs are merely considered adjunct to its principal duty.

Congress shall always be and will be the forum where laws are made for the common good.

In the eloquent words of Senate President Juan Ponce Enrile:30 “Let us restore the Senate to what it
once was as the citadel and beacon light of our liberty. Let us again make it the repository of our hopes
and aspirations. Let us bring it back to what it used to be—the stouthearted and courageous sentinel
and protector of the commonweal. Let it become once more a true forum of the people—the authentic
and concrete senatus populi of the nation.”

——o0o——

© Copyright 2016 Central Book Supply, Inc. All rights reserved. The Legislative Process (How a Bill
Becomes a Law), 669 SCRA 611, April 17, 2012