EN BANC
[ G.R. No. 187836, November 25, 2014 ]
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS, NAMELY, SAMSON S. ALCANTARA, AND VLADIMIR ALARIQUE T. CABIGAO, PETITIONERS, VS. ALFREDO S. LIM, IN HIS CAPACITY AS MAYOR OF THE CITY OF MANILA, RESPONDENT.
[G.R. No. 187916]
JOSE L. ATIENZA, JR., BIENVINIDO M. ABANTE, MA. LOURDES M. ISIP-GARCIA, RAFAEL P. BORROMEO JOCELYN DAWIS-ASUNCION, MINORS MARIAN REGINA B. TARAN, MACAILA RICCI B. TARAN, RICHARD KENNETH B. TARAN, REPRESENTED AND JOINED BY THEIR PARENTS RICHARD AND MARITES TARAN, MINORS CZARINA ALYSANDRA C. RAMOS, CEZARAH ADRIANNA C. RAMOS, AND CRISTEN AIDAN C. RAMOS REPRESENTED AND JOINED BY THEIR MOTHER DONNA C. RAMOS, MINORS JAZMIN SYLLITA T. VILA AND ANTONIO T. CRUZ IV, REPRESENTED AND JOINED BY THEIR MOTHER MAUREEN C. TOLENTINO, PETITIONERS, VS. MAYOR ALFREDO S. LIM, VICE MAYOR FRANCISCO DOMAGOSO, COUNCILORS ARLENE W. KOA, MOISES T. LIM, JESUS FAJARDO LOUISITO N. CHUA, VICTORIANO A. MELENDEZ, JOHN MARVIN C. NIETO, ROLANDO M. VALERIANO, RAYMUNDO R. YUPANGCO, EDWARD VP MACEDA, RODERICK D. VALBUENA, JOSEFINA M. SISCAR, SALVADOR PHILLIP H. LACUNA, LUCIANO M. VELOSO, CARLO V. LOPEZ, ERNESTO F. RIVERA,[1] DANILO VICTOR H. LACUNA, JR., ERNESTO G. ISIP, HONEY H. LACUNA-PANGAN, ERNESTO M. DIONISO, JR. AND ERICK IAN O. NIEVA, RESPONDENTS.
CHEVRON PHILIPPINES INC., PETRON CORPORATION AND PILIPINAS SHELL PETROLEUM CORPORATION, INTERVENORS.
D E C I S I O N
PEREZ, J.:
Challenged in these consolidated petitions[2] is the validity of Ordinance No. 8187[3] entitled “AN ORDINANCE AMENDING ORDINANCE NO. 8119, OTHERWISE KNOWN AS ‘THE MANILA COMPREHENSIVE LAND USE PLAN AND ZONING ORDINANCE OF 2006,’ BY CREATING A MEDIUM INDUSTRIAL ZONE (1-2) AND HEAVY INDUSTRIAL ZONE (1-3), AND PROVIDING FOR ITS ENFORCEMENT” enacted by the Sangguniang Panlungsod of Manila (Sangguniang Panlungsod) on 14 May 2009.
The creation of a medium industrial zone (1-2) and heavy industrial zone (1-3) effectively lifted the prohibition against owners and operators of businesses, including herein intervenors Chevron Philippines, Inc. (Chevron), Pilipinas Shell Petroleum Corporation (Shell), and Petron Corporation (Petron), collectively referred to as the oil companies, from operating in the designated commercial zone – an industrial zone prior to the enactment of Ordinance No. 8027[4] entitled “AN ORDINANCE RECLASSIFYING THE LAND USE OF THAT PORTION OF LAND BOUNDED BY THE PASIG RIVER IN THE NORTH, PNR RAILROAD TRACK IN THE EAST, BEATA ST. IN THE SOUTH, PALUMPONG ST. IN THE SOUTHWEST AND ESTERO DE PANDACAN IN THE WEST, PNR RAILROAD IN THE NORTHWEST AREA, ESTERO DE PANDACAN IN THE NORTHEAST, PASIG RIVER IN THE SOUTHEAST AND DR. M. L. CARREON IN THE SOUTHWEST, THE AREA OF PUNTA, STA. ANA BOUNDED BY THE PASIG RIVER, MARCELINO OBRERO ST., MAYO 28 ST. AND THE F. MANALO STREET FROM INDUSTRIAL II TO COMMERCIAL I,” and Ordinance No. 8119[5] entitled “AN ORDINANCE ADOPTING THE MANILA COMPREHENSIVE LAND USE PLAN AND ZONING REGULATIONS OF 2006 AND PROVIDING FOR THE ADMINISTRATION, ENFORCEMENT AND AMENDMENT THERETO.”
The Parties
Petitioners allege the parties’ respective capacity to sue and be sued, viz:
G.R. No. 187916
The Antecedents
These petitions are a sequel to the case of Social Justice Society v. Mayor Atienza, Jr.[8] (hereinafter referred to as G.R. No. 156052), where the Court found: (1) that the ordinance subject thereof – Ordinance No. 8027 – was enacted “to safeguard the rights to life, security and safety of the inhabitants of Manila;”[9] (2) that it had passed the tests of a valid ordinance; and (3) that it is not superseded by Ordinance No. 8119.[10] Declaring that it is constitutional and valid,[11] the Court accordingly ordered its immediate enforcement with a specific directive on the relocation and transfer of the Pandacan oil terminals.[12]
Highlighting that the Court has so ruled that the Pandacan oil depots should leave, herein petitioners now seek the nullification of Ordinance No. 8187, which contains provisions contrary to those embodied in Ordinance No. 8027. Allegations of violation of the right to health and the right to a healthful and balanced environment are also included.
For a better perspective of the facts of these cases, we again trace the history of the Pandacan oil terminals, as well as the intervening events prior to the reclassification of the land use from Industrial II to Commercial I under Ordinance No. 8027 until the creation of Medium Industrial Zone and Heavy Industrial Zone pursuant to Ordinance No. 8187.
History of the Pandacan
Oil Terminals
We quote the following from the Resolution of the Court in G.R. No. 156052:
dated 12 October 2001 between the oil companies
and the Department of Energy (DOE)
On 12 October 2001, the oil companies and the DOE entered into a MOA[14] “in light of recent international developments involving acts of terrorism on civilian and government landmarks,”[15] “potential new security risks relating to the Pandacan oil terminals and the impact on the surrounding community which may be affected,”[16] and “to address the perceived risks posed by the proximity of communities, businesses and offices to the Pandacan oil terminals, consistent with the principle of sustainable development.”[17] The stakeholders acknowledged that “there is a need for a comprehensive study to address the economic, social, environmental and security concerns with the end in view of formulating a Master Plan to address and minimize the potential risks and hazards posed by the proximity of communities, businesses and offices to the Pandacan oil terminals without adversely affecting the security and reliability of supply and distribution of petroleum products to Metro Manila and the rest of Luzon, and the interests of consumers and users of such petroleum products in those areas.”[18]
The enactment of Ordinance No. 8027
against the continued stay of the oil depots
The MOA, however, was short-lived.
On 20 November 2001, during the incumbency of former Mayor Jose L. Atienza, Jr. (Mayor Atienza) – now one of the petitioners in G.R. No. 187916 – the Sangguniang Panlungsod enacted Ordinance No. 8027[19] reclassifying the use of the land in Pandacan, Sta. Ana, and its adjoining areas from Industrial II to Commercial I.
The owners and operators of the businesses thus affected by the reclassification were given six months from the date of effectivity of the Ordinance within which to stop the operation of their businesses.
Nevertheless, the oil companies were granted an extension of until 30 April 2003 within which to comply with the Ordinance pursuant to the following:
(1) Memorandum of Understanding (MOU)[20] dated 26 June 2002 between the City of Manila and the Department of Energy (DOE), on the one hand, and the oil companies, on the other, where the parties agreed that “the scaling down of the Pandacan Terminals [was] the most viable and practicable option”[21] and committed to adopt specific measures[22] consistent with the said objective;
(2) Resolution No. 97 dated 25 July 2002[23] of the Sangguniang Panlungsod, which ratified the 26 June 2002 MOU but limited the extension of the period within which to comply to six months from 25 July 2002; and
(3) Resolution No. 13 dated 30 January 2003[24] of the Sanguniang Panlungsod, which extended the validity of Resolution No. 97 to 30 April 2003, authorized then Mayor Atienza to issue special business permits to the oil companies, and called for a reassessment of the ordinance.
Social Justice Society v. Atienza (G.R. No. 156052):
The filing of an action for mandamus
before the Supreme Court
to enforce Ordinance No. 8027
In the interim, an original action for mandamus entitled Social Justice Society v. Atienza, Jr. docketed as G.R. No. 156052[25] was filed on 4 December 2002 by Tumbokon and herein petitioners SJS and Cabigao against then Mayor Atienza. The petitioners sought to compel former Mayor Atienza to enforce Ordinance No. 8027 and cause the immediate removal of the terminals of the oil companies.[26]
Issuance by the Regional Trial Court (RTC)
of writs of preliminary prohibitory injunction
and preliminary mandatory injunction,
and status quo order in favor of the oil companies
Unknown to the Court, during the pendency of G.R. No. 156052, and before the expiration of the validity of Resolution No. 13, the oil companies filed the following actions before the Regional Trial Court of Manila: (1) an action for the annulment of Ordinance No. 8027 with application for writs of preliminary prohibitory injunction and preliminary mandatory injunction – by Chevron; (2) a petition for prohibition and mandamus also for the annulment of the Ordinance with application for writs of preliminary prohibitory injunction and preliminary mandatory injunction – by Shell; and (3) a petition assailing the validity of the Ordinance with prayer for the issuance of a writ of preliminary injunction and/or temporary restraining order (TRO) – by Petron.[27]
Writs of preliminary prohibitory injunction and preliminary mandatory injunction were issued in favor of Chevron and Shell on 19 May 2003. Petron, on the other hand, obtained a status quo order on 4 August 2004.[28]
The Enactment of Ordinance No. 8119
defining the Manila land use plan
and zoning regulations
On 16 June 2006, then Mayor Atienza approved Ordinance No. 8119 entitled “An Ordinance Adopting the Manila Comprehensive Land Use Plan and Zoning Regulations of 2006 and Providing for the Administration, Enforcement and Amendment thereto.”[29]
Pertinent provisions relative to these cases are the following:
(a) Article IV, Sec. 7[30] enumerating the existing zones or districts in the City of Manila;
(b) Article V, Sec. 23[31] designating the Pandacan oil depot area as a “Planned Unit Development/Overlay Zone” (O-PUD); and
(c) the repealing clause, which reads:
The mayor has the mandatory legal duty
to enforce Ordinance No. 8027 and order
the removal of the Pandacan terminals
On 7 March 2007, the Court granted the petition for mandamus, and directed then respondent Mayor Atienza to immediately enforce Ordinance No. 8027.[33]
Confined to the resolution of the following issues raised by the petitioners, to wit:
Ordinance No. 8027 is constitutional
The oil companies and the Republic of the Philippines, represented by the DOE, filed their motions for leave to intervene and for reconsideration of the 7 March 2007 Decision. During the oral arguments, the parties submitted to the power of the Court to rule on the constitutionality and validity of the assailed Ordinance despite the pendency of the cases in the RTC.[36]
On 13 February 2008, the Court granted the motions for leave to intervene of the oil companies and the Republic of the Philippines but denied their respective motions for reconsideration. The dispositive portion of the Resolution reads:
Ordinance No. 8027 was not impliedly repealed
by Ordinance No. 8119
The Court also ruled that Ordinance No. 8027 was not impliedly repealed by Ordinance No. 8119. On this score, the Court ratiocinated:
Ordinance No. 8027 effectively allowing
the oil depots to stay in the Pandacan area;
Manifestation and Motion to forestall
the passing of the new Ordinance
filed in G.R. No. 156052
On 5 March 2009, respondent then Councilor Arlene W. Koa, filed with the Sangguniang Panlungsod a draft resolution entitled “An Ordinance Amending Ordinance No. 8119 Otherwise Known as ‘The Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006’ by Creating a Medium Industrial Zone (1-2) and Heavy Industrial Zone (1-3) and Providing for its Enforcement.”[39] Initially numbered as Draft Ordinance No. 7177, this was later renumbered as Ordinance No. 8187, the assailed Ordinance in these instant petitions.
Considering that the provisions thereof run contrary to Ordinance No. 8027, the petitioners in G.R. No. 156052 filed a “Manifestation and Motion to: a) Stop the City Council of Manila from further hearing the amending ordinance to Ordinance No. 8027; [and] b) Transfer the monitoring of the enforcement of the Resolution of the Honorable Court on this case dated 13 February 2008 from Branch 39, Manila Regional Trial Court to the Supreme Court.”[40]
28 April 2009 Resolution in G.R. No. 156052;
Second Motion for Reconsideration
denied with finality; succeeding motions
likewise denied or otherwise noted
without action
On 28 April 2009, pending the resolution of the Manifestation and Motion, the Court denied with finality the second motion for reconsideration dated 27 February 2008 of the oil companies.[41] It further ruled that no further pleadings shall be entertained in the case.[42]
Succeeding motions were thus denied and/or noted without action. And, after the “Very Urgent Motion to Stop the Mayor of the City of Manila from Signing Draft Ordinance No. 7177 and to Cite Him for Contempt if He Would Do So” filed on 19 May 2009 was denied on 2 June 2009 for being moot,[43] all pleadings pertaining to the earlier motion against the drafting of an ordinance to amend Ordinance No. 8027 were noted without action.[44]
The Enactment of Ordinance No. 8187
allowing the continued stay of the oil depots
On 14 May 2009, during the incumbency of former Mayor Alfredo S. Lim (Mayor Lim), who succeeded Mayor Atienza, the Sangguniang Panlungsod enacted Ordinance No. 8187.[45]
The new Ordinance repealed, amended, rescinded or otherwise modified Ordinance No. 8027, Section 23 of Ordinance No. 8119, and all other Ordinances or provisions inconsistent therewith[46] thereby allowing, once again, the operation of “Pollutive/Non-Hazardous and Pollutive/Hazardous manufacturing and processing establishments” and “Highly Pollutive/Non-Hazardous[,] Pollutive/Hazardous[,] Highly Pollutive/Extremely Hazardous[,] Non-Pollutive/Extremely Hazardous; and Pollutive/Extremely Hazardous; and Pollutive/Extremely Hazardous manufacturing and processing establishments” within the newly created Medium Industrial Zone (1-2) and Heavy Industrial Zone (1-3) in the Pandacan area.
Thus, where the Industrial Zone under Ordinance No. 8119 was limited to Light Industrial Zone (I-1), Ordinance No. 8187 appended to the list a Medium Industrial Zone (I-2) and a Heavy Industrial Zone (I-3), where petroleum refineries and oil depots are now among those expressly allowed.
Hence these petitions.
The Petitions
G.R. No. 187836
To support their petition for prohibition against the enforcement of Ordinance No. 8187, the petitioner Social Justice Society (SJS) officers allege that:
1. The enactment of the assailed Ordinance is not a valid exercise of police power because the measures provided therein do not promote the general welfare of the people within the contemplation of the following provisions of law:
3. Despite the finality of the Decision in G.R. No. 156052, and notwithstanding that the conditions and circumstances warranting the validity of the Ordinance remain the same, the Manila City Council passed a contrary Ordinance, thereby refusing to recognize that “judicial decisions applying or interpreting the laws or the Constitution form part of the legal system of the Philippines;”[49] and
4. Ordinance No. 8187 is violative of Sections 15 and 16, Article II of the Constitution of the Philippines on the duty of the State “to protect and promote the right to health of the people”[50] and “protect and advance the right of the people to a balanced and healthful ecology.”[51]
Petitioners pray that Ordinance No. 8187 of the City of Manila be declared null and void, and that respondent, and all persons acting under him, be prohibited from enforcing the same.
G.R. No. 187916
The petition for Prohibition, Mandamus and Certiorari with Prayer for Temporary Restraining Order and/or Injunction against the enforcement of Ordinance No. 8187 of former Secretary of Department of Environment and Natural Resources and then Mayor Atienza, together with other residents and taxpayers of the City of Manila, also alleges violation of the right to health of the people and the right to a healthful and balanced environment under Sections 15 and 16 of the Constitution.
Petitioners likewise claim that the Ordinance is in violation of the following health and environment-related municipal laws, and international conventions and treaties to which the Philippines is a state party:
1. Municipal Laws –
2. International Conventions and Treaties to which the Philippines is a state party –
Also pointed out by the petitioners is a specific procedure outlined in Ordinance No. 8119 that should be observed when amending the zoning ordinance. This is provided for under Section 81 thereof, which reads:
The Respondents’ Position
on the Consolidated Petitions
Respondent former Mayor Lim
In his Memorandum,[61] former Mayor Lim, through the City Legal Officer, attacks the petitioners’ lack of legal standing to sue. He likewise points out that the petitioners failed to observe the principle of hierarchy of courts.
Maintaining that Ordinance No. 8187 is valid and constitutional, he expounds on the following arguments:
On the procedural issues, he contends that: (1) it is the function of the Sangguniang Panlungsod to enact zoning ordinances, for which reason, it may proceed to amend or repeal Ordinance No. 8119 without prior referral to the Manila Zoning Board of Adjustment and Appeals (MZBAA) as prescribed under Section 80 (Procedure for Re-Zoning) and the City Planning and Development Office (CPDO) pursuant to Section 81 (Amendments to the Zoning Ordinance) of Ordinance No. 8119, especially when the action actually originated from the Sangguniang Panlungsoditself; (2) the Sangguniang Panlungsod may, in the later ordinance, expressly repeal all or part of the zoning ordinance sought to be modified; and (3) the provision repealing Section 23 of Ordinance No. 8119 is not violative of Section 26, Article VI of the 1987 Constitution, which requires that every bill must embrace only one subject and that such shall be expressed in the title.
On the substantive issues, he posits that the petitions are based on unfounded fears; that the assailed ordinance is a valid exercise of police power; that it is consistent with the general welfare clause and public policy, and is not unreasonable; that it does not run contrary to the Constitution, municipal laws, and international conventions; and that the petitioners failed to overcome the presumption of validity of the assailed ordinance.
Respondents Vice-Mayor Domagoso
and the City Councilors who voted
in favor of the assailed ordinance
On 14 September 2012, after the Court gave the respondents several chances to submit their Memorandum,[62]they, through the Secretary of the Sangguniang Panlungsod, prayed that the Court dispense with the filing thereof.
In their Comment,[63] however, respondents offered a position essentially similar to those proffered by former Mayor Lim.
The Intervenors’ Position
on the Consolidated Petitions
On the other hand, the oil companies sought the outright dismissal of the petitions based on alleged procedural infirmities, among others, incomplete requisites of judicial review, violation of the principle of hierarchy of courts, improper remedy, submission of a defective verification and certification against forum shopping, and forum shopping.
As to the substantive issues, they maintain, among others, that the assailed ordinance is constitutional and valid; that the Sangguniang Panlalawigan is in the best position to determine the needs of its constituents; that it is a valid exercise of legislative power; that it does not violate health and environment-related provisions of the Constitution, laws, and international conventions and treaties to which the Philippines is a party; that the oil depots are not likely targets of terrorists; that the scaling down of the operations in Pandacan pursuant to the MOU has been followed; and that the people are safe in view of the safety measures installed in the Pandacan terminals.
Incidentally, in its Manifestation dated 30 November 2010,[64] Petron informed the Court that it will “cease [the] operation of its petroleum product storage facilities”[65] in the Pandacan oil terminal not later than January 2016 on account of the following:
On 28 August 2012, while the Court was awaiting the submission of the Memorandum of respondents Vice-Mayor Domagoso and the councilors who voted in favor of the assailed Ordinance, the Sangguniang Panlungsod, which composition had already substantially changed, enacted Ordinance No. 8283[67] entitled “AN ORDINANCE AMENDING SECTION 2 OF ORDINANCE NO. 8187 BY RECLASSIFYING THE AREA WHERE PETROLEUM REFINERIES AND OIL DEPOTS ARE LOCATED FROM HEAVY INDUSTRIAL (1-3) TO HIGH INTENSITY COMMERCIAL/MIXED USE ZONE (C3/MXD).
The new ordinance essentially amended the assailed ordinance to exclude the area where petroleum refineries and oil depots are located from the Industrial Zone.
Ordinance No. 8283 thus permits the operation of the industries operating within the Industrial Zone. However, the oil companies, whose oil depots are located in the High Intensity Commercial/Mixed Use Zone (C3/MXD), are given until the end of January 2016 within which to relocate their terminals.
Former Mayor Lim, who was then the incumbent mayor, did not support the amendment. Maintaining that the removal of the oil depots was prejudicial to public welfare, and, on account of the pending cases in the Supreme Court, he vetoed Ordinance No. 8283 on 11 September 2012.[68]
On 28 November 2012, former Mayor Lim filed a Manifestation informing this Court that the Sangguniang Panlungsod voted to override the veto, and that he, in turn, returned it again with his veto. He likewise directed the Sangguniang Panlungsod to append his written reasons for his veto of the Ordinance, so that the same will be forwarded to the President for his consideration in the event that his veto is overridden again.[69]
On 11 December 2012, Shell also filed a similar Manifestation.[70]
Meanwhile, three days after former Mayor Lim vetoed the new ordinance, Atty. Luch R. Gempis, Jr. (Atty. Gempis), Secretary of the Sangguniang Panlungsod, writing on behalf of respondents Vice-Mayor Domagoso and the City Councilors of Manila who voted in favor of the assailed Ordinance, finally complied with this Court’s Resolution dated 17 July 2012 reiterating its earlier directives[71] to submit the said respondents’ Memorandum.
In his Compliance/Explanation with Urgent Manifestation[72] dated 13 September 2012, Atty. Gempis explained that it was not his intention to show disrespect to this Court or to delay or prejudice the disposition of the cases.
According to him, he signed the Comment prepared by respondents Vice-Mayor and the City Councilors only to attest that the pleading was personally signed by the respondents. He clarified that he was not designated as the legal counsel of the respondents as, in fact, he was of the impression that, pursuant to Section 481(b)(3) of the Local Government Code,[73] it is the City Legal Officer who is authorized to represent the local government unit or any official thereof in a litigation. It was for the same reason that he thought that the filing of a Memorandum may already be dispensed with when the City Legal Officer filed its own on 8 February 2010. He further explained that the Ordinance subject of these cases was passed during the 7th Council (2007-2010); that the composition of the 8th Council (2010-2013) had already changed after the 2010 elections; and that steps were already taken to amend the ordinance again. Hence, he was in a dilemma as to the position of the Sangguniang Panlungsod at the time he received the Court’s Resolution of 31 May 2011.
Atty. Gempis, thus, prayed that the Court dispense with the filing of the required memorandum in view of the passing of Ordinance No. 8283.
Issue
The petitioners’ arguments are primarily anchored on the ruling of the Court in G. R. No. 156052 declaring Ordinance No. 8027 constitutional and valid after finding that the presence of the oil terminals in Pandacan is a threat to the life and security of the people of Manila. From thence, the petitioners enumerated constitutional provisions, municipal laws and international treaties and conventions on health and environment protection allegedly violated by the enactment of the assailed Ordinance to support their position.
The resolution of the present controversy is, thus, confined to the determination of whether or not the enactment of the assailed Ordinance allowing the continued stay of the oil companies in the depots is, indeed, invalid and unconstitutional.
Our Ruling
We see no reason why Ordinance No. 8187 should not be stricken down insofar as the presence of the oil depots in Pandacan is concerned.
I
We first rule on the procedural issues raised by the respondents and the oil companies.
At the outset, let it be emphasized that the Court, in G.R. No. 156052, has already pronounced that the matter of whether or not the oil depots should remain in the Pandacan area is of transcendental importance to the residents of Manila.[74]
We may, thus, brush aside procedural infirmities, if any, as we had in the past, and take cognizance of the cases[75]if only to determine if the acts complained of are no longer within the bounds of the Constitution and the laws in place.[76]
Put otherwise, there can be no valid objection to this Court’s discretion to waive one or some procedural requirements if only to remove any impediment to address and resolve the serious constitutional question[77] raised in these petitions of transcendental importance, the same having far-reaching implications insofar as the safety and general welfare of the residents of Manila, and even its neighboring communities, are concerned.
Proper Remedy
Respondents and intervenors argue that the petitions should be outrightly dismissed for failure on the part of the petitioners to properly apply related provisions of the Constitution, the Rules of Court, and/or the Rules of Procedure for Environmental Cases relative to the appropriate remedy available to them.
To begin with, questioned is the applicability of Rule 65[78] of the Rules of Court to assail the validity and constitutionality of the Ordinance.
… there is no appeal, or any plain,
speedy, and adequate remedy
in the ordinary course of law…
Rule 65 specifically requires that the remedy may be availed of only when “there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.”[79]
Shell argues that the petitioners should have sought recourse before the first and second level courts under the Rules of Procedure for Environmental Cases,[80] which govern “the enforcement or violations of environmental and other related laws, rules and regulations.”[81] Petron additionally submits that the most adequate remedy available to petitioners is to have the assailed ordinance repealed by the Sangguniang Panlungsod. In the alternative, a local referendum may be had. And, assuming that there were laws violated, the petitioners may file an action for each alleged violation of law against the particular individuals that transgressed the law.
It would appear, however, that the remedies identified by the intervenors prove to be inadequate to resolve the present controversies in their entirety owing to the intricacies of the circumstances herein prevailing.
The scope of the Rules of Procedure for Environmental Cases is embodied in Sec. 2, Part I, Rule I thereof. It states that the Rules shall govern the procedure in civil, criminal and special civil actions before the Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts, and the Regional Trial Courts involving enforcement or violations of environmental and other related laws, rules and regulations such as but not limited to the following:
Moreover, it bears emphasis that the promulgation of the said Rules was specifically intended to meet the following objectives:
Relative to the position of Petron, it failed to consider that these petitions are already a sequel to G.R. No. 156052, and that there are some issues herein raised that the remedies available at the level of the Sangguniang Panlungsodcould not address. Neither could the filing of an individual action for each law violated be harmonized with the essence of a “plain, speedy, and adequate” remedy.
From another perspective, Shell finds fault with the petitioners’ direct recourse to this Court when, pursuant to Section 5, Article VIII of the Constitution, the Supreme Court exercises only appellate jurisdiction over cases involving the constitutionality or validity of an ordinance.[84] Thus:
On a related issue, we initially found convincing the argument that the petitions should have been filed with the Regional Trial Court, it having concurrent jurisdiction with this Court over a special civil action for prohibition, and original jurisdiction over petitions for declaratory relief.
However, as we have repeatedly said, the petitions at bar are of transcendental importance warranting a relaxation of the doctrine of hierarchy of courts.[89] In the case of Jaworski v. PAGCOR,[90] the Court ratiocinated:
As to who may file a petition for certiorari, prohibition or mandamus, Petron posits that petitioners are not among the “persons aggrieved” contemplated under Sections 1 to 3 of Rule 65 of the Rules of Court.
Chevron argues that petitioners, whether as “citizens,” taxpayers,” or legislators,” lack the legal standing to assail the validity and constitutionality of Ordinance No. 8187. It further claims that petitioners failed to show that they have suffered any injury and/or threatened injury as a result of the act complained of.[91]
Shell also points out that the petitions cannot be considered taxpayers’ suit, for then, there should be a claim that public funds were illegally disbursed and that petitioners have sufficient interest concerning the prevention of illegal expenditure of public money.[92] In G.R. No. 187916, Shell maintains that the petitioners failed to show their personal interest in the case and/or to establish that they may represent the general sentiments of the constituents of the City of Manila so as to be treated as a class suit. Even the minors, it argues, are not numerous and representative enough for the petition to be treated as a class suit. As to the city councilors who joined the petitioners in assailing the validity of Ordinance No. 8187, Shell posits that they cannot invoke the ruling in Prof. David v. Pres. Macapagal-Arroyo,[93] where the Court held that legislators may question the constitutionality of a statute, if and when it infringes upon their prerogatives as legislators, because of the absence of the allegation that the assailed ordinance indeed infringes upon their prerogatives.
Former Mayor Lim submitted a similar position supported by a number of cases on the concept of locus standi,[94]the direct injury test,[95] an outline of the stringent requirements of legal standing when suing as a citizen,[96] as a taxpayer,[97] as a legislator and in cases where class suits are filed in behalf of all citizens.[98]
Their arguments are misplaced.
In G.R. No. 156052, we ruled that the petitioners in that case have a legal right to seek the enforcement of Ordinance No. 8027 because the subject of the petition concerns a public right, and they, as residents of Manila, have a direct interest in the implementation of the ordinances of the city. Thus:
In the case of Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. (IDEALS, INC.) v. Power Sector Assets and Liabilities Management Corporation (PSALM),[100] involving a petition for certiorari and prohibition to permanently enjoin PSALM from selling the Angat Hydro-Electric Power Plant (AHEPP) to Korea Water Resources Corporation (K-Water), the Court ruled:
… in excess of its or his jurisdiction,
or with grave abuse of discretion
amounting to lack or excess of jurisdiction…
Petron takes issue with the alleged failure of the petitioners to establish the facts with certainty that would show that the acts of the respondents fall within the parameters of the grave abuse of discretion clause settled by jurisprudence, to wit:
For a valid exercise of the power of judicial review, the following requisites shall concur: (1) the existence of a legal controversy; (2) legal standing to sue of the party raising the constitutional question; (3) a plea that judicial review be exercised at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.[105]
Only the first two requisites are put in issue in these cases.
On the matter of the existence of a legal controversy, we reject the contention that the petitions consist of bare allegations based on speculations, surmises, conjectures and hypothetical grounds.
The Court declared Ordinance No. 8027 valid and constitutional and ordered its implementation. With the passing of the new ordinance containing the contrary provisions, it cannot be any clearer that here lies an actual case or controversy for judicial review. The allegation on this, alone, is sufficient for the purpose.
The second requisite has already been exhaustively discussed.
Proof of identification required in the notarization
of the verification and certification against forum
shopping in G.R. No. 187916
At the bottom of the Verification and Certification against Forum Shopping of the petition in G.R. No. 187916 is the statement of the notary public to the effect that the affiant, in his presence and after presenting “an integrally competent proof of identification with signature and photograph,”[106] signed the document under oath.
Citing Sec. 163 of the Local Government Code,[107] which provides that an individual acknowledging any document before a notary public shall present his Community Tax Certificate (CTC), Chevron posits that the petitioner’s failure to present his CTC rendered the petition fatally defective warranting the outright dismissal of the petition.
We disagree.
The verification and certification against forum shopping are governed specifically by Sections 4 and 5, Rule 7 of the Rules of Court.
Section 4 provides that a pleading, when required to be verified, shall be treated as an unsigned pleading if it lacks a proper verification while Section 5 requires that the certification to be executed by the plaintiff or principal party be under oath.
These sections, in turn, should be read together with Sections 6 and 12, Rule 2 of the 2004 Rules on Notarial Practice.
Section 6[108] of the latter Rules, specifically, likewise provides that any competent evidence of identity specified under Section 12 thereof may now be presented before the notary public, to wit:
Shell contends that the petitioners in G.R. No. 187836 violated the rule against forum shopping allegedly because all the elements thereof are present in relation to G.R. No. 156052, to wit:
1. “identity of parties, or at least such parties who represent the same interests in both actions” –
According to Shell, the interest of petitioner SJS in G.R. No. 156052 and the officers of SJS in G.R. No. 187836 are clearly the same. Moreover, both actions implead the incumbent mayor of the City of Manila as respondent. Both then respondent Mayor Atienza in G.R. No. 156052 and respondent former Mayor Lim in G.R. No. 187836 are sued in their capacity as Manila mayor.
2. “identity of rights asserted and relief prayed for, the relief being founded on the same fact(s)” –
Shell contends that, in both actions, petitioners assert the same rights to health and to a balanced and healthful ecology relative to the fate of the Pandacan terminal, and seek essentially the same reliefs, that is, the removal of the oil depots from the present site.
3. “the identity of the two preceding particulars is such that any judgment rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other” –
Relative to the filing of the Manifestation and Motion to: a) Stop the City Council of Manila from further hearing the amending ordinance to Ordinance No. 8027 x x x (Manifestation and Motion) and Very Urgent Motion to Stop the Mayor of the City of Manila from Signing Draft Ordinance No. 7177 [now Ordinance No. 8187] and to Cite Him for Contempt if He Would Do So (Urgent Motion) both in G.R. No. 156052, Shell points out the possibility that the Court would have rendered conflicting rulings “on cases involving the same facts, parties, issues and reliefs prayed for.”[110]
We are not persuaded.
In Spouses Cruz v. Spouses Caraos,[111] the Court expounded on the nature of forum shopping. Thus:
As to the matter of the denial of the petitioners’ Manifestation and Urgent Motion in G.R. No. 156052, which were both incidental to the enforcement of the decision favorable to them brought about by the intervening events after the judgment had become final and executory, and which involve the same Ordinance assailed in these petitions, we so hold that the filing of the instant petitions is not barred by res judicata.
In the same case of Spouses Cruz v. Spouses Caraos involving the re-filing of a complaint, which had been earlier dismissed without qualification that the dismissal was with prejudice, and which had not been decided on the merits, the Court declared that such re-filing did not amount to forum shopping. It ratiocinated:
II
The Local Government Code of 1991 expressly provides that the Sangguniang Panlungsod is vested with the power to “reclassify land within the jurisdiction of the city”[116] subject to the pertinent provisions of the Code. It is also settled that an ordinance may be modified or repealed by another ordinance.[117] These have been properly applied in G.R. No. 156052, where the Court upheld the position of the Sangguniang Panlungsod to reclassify the land subject of the Ordinance,[118] and declared that the mayor has the duty to enforce Ordinance No. 8027, provided that it has not been repealed by the Sangguniang Panlungsod or otherwise annulled by the courts.[119] In the same case, the Court also used the principle that the Sanguniang Panlungsod is in the best position to determine the needs of its constituents[120] – that the removal of the oil depots from the Pandacan area is necessary “to protect the residents of Manila from catastrophic devastation in case of a terrorist attack on the Pandacan Terminals.”[121]
Do all these principles equally apply to the cases at bar involving the same subject matter to justify the contrary provisions of the assailed Ordinance?
We answer in the negative.
We summarize the position of the Sangguniang Panlungsod on the matter subject of these petitions. In 2001, the Sanggunian found the relocation of the Pandacan oil depots necessary. Hence, the enactment of Ordinance No. 8027.
In 2009, when the composition of the Sanggunian had already changed, Ordinance No. 8187 was passed in favor of the retention of the oil depots. In 2012, again when some of the previous members were no longer re-elected, but with the Vice-Mayor still holding the same seat, and pending the resolution of these petitions, Ordinance No. 8283 was enacted to give the oil depots until the end of January 2016 within which to transfer to another site. Former Mayor Lim stood his ground and vetoed the last ordinance.
In its Comment, the 7th Council (2007-2010) alleged that the assailed Ordinance was enacted to alleviate the economic condition of its constituents.[122]
Expressing the same position, former Mayor Lim even went to the extent of detailing the steps[123] he took prior to the signing of the Ordinance, if only to show his honest intention to make the right decision.
The fact remains, however, that notwithstanding that the conditions with respect to the operations of the oil depots existing prior to the enactment of Ordinance No. 8027 do not substantially differ to this day, as would later be discussed, the position of the Sangguniang Panlungsod on the matter has thrice changed, largely depending on the new composition of the council and/or political affiliations. The foregoing, thus, shows that its determination of the “general welfare” of the city does not after all gear towards the protection of the people in its true sense and meaning, but is, one way or another, dependent on the personal preference of the members who sit in the council as to which particular sector among its constituents it wishes to favor.
Now that the City of Manila, through the mayor and the city councilors, has changed its view on the matter, favoring the city’s economic-related benefits, through the continued stay of the oil terminals, over the protection of the very lives and safety of its constituents, it is imperative for this Court to make a final determination on the basis of the facts on the table as to which specific right of the inhabitants of Manila should prevail. For, in this present controversy, history reveals that there is truly no such thing as “the will of Manila” insofar as the general welfare of the people is concerned.
If in sacrilege, in free translation of Angara[124] by Justice Laurel, we say when the judiciary mediates we do not in reality nullify or invalidate an act of the Manila Sangguniang Panlungsod, but only asserts the solemn and sacred obligation assigned to the Court by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them.
III
The measures taken by the intervenors to lend support to their position that Manila is now safe despite the presence of the oil terminals remain ineffective. These have not completely removed the threat to the lives of the inhabitants of Manila.
In G.R. No. 156052, the validity and constitutionality of Ordinance No. 8027 was declared as a guarantee for the protection of the constitutional right to life of the residents of Manila. There, the Court said that the enactment of the said ordinance was a valid exercise of police power with the concurrence of the two requisites: a lawful subject – “to safeguard the rights to life, security and safety of all the inhabitants of Manila;”[125] and a lawful method – the enactment of Ordinance No. 8027 reclassifying the land use from industrial to commercial, which effectively ends the continued stay of the oil depots in Pandacan.[126]
In the present petitions, the respondents and the oil companies plead that the Pandacan Terminal has never been one of the targets of terrorist attacks;[127] that the petitions were based on unfounded fears and mere conjectures;[128] and that the possibility that it would be picked by the terrorists is nil given the security measures installed thereat.[129]
The intervenors went on to identify the measures taken to ensure the safety of the people even with the presence of the Pandacan Terminals. Thus:
1. Chevron claims that it, together with Shell and Petron, continues to enhance the safety and security features of the terminals. They likewise adopt fire and product spill prevention measures in accordance with the local standards set by the Bureau of Fire Protection, among others, and with the international standards of the American Petroleum Industry (“API”) and the National Fire Prevention and Safety Association (“NFPSA”); that since 1914, the oil depots had not experienced “any incident beyond the ordinary risks and expectations”[130] of the residents of Manila; and that it received a passing grade on the safety measures they installed in the facilities from the representatives of the City of Manila who conducted an ocular inspection on 22 May 2009; and
2. Referring to the old MOU entered into between the City of Manila and the DOE, on the one hand, and the oil companies, on the other, where the parties thereto conceded and acknowledged that the scale-down option for the Pandacan Terminal operations is the best alternative to the relocation of the terminals, Shell enumerates the steps taken to scale down its operations.
As to the number of main fuel tanks, the entire Pandacan Terminal has already decommissioned twenty-eight out of sixty-four tanks. Speaking for Shell alone, its LPG Spheres, which it claims is the only product that may cause explosion, was part of those decommissioned, thereby allegedly removing the danger of explosion. Safety buffer zones and linear/green parks were likewise created to separate the terminal from the nearest residential area. Shell’s portion of the oil depot is likewise allegedly equipped with the latest technology to ensure air-quality control and water-quality control, and to prevent and cope with possible oil spills with a crisis management plan in place in the event that an oil spill occurs. Finally, Shell claims that the recommendations of EQE International in its Quantitative Risk Assessment (QRA) study, which it says is one of the leading independent risk assessment providers in the world and largest risk management consultancy, were sufficiently complied with; and that, on its own initiative, it adopted additional measures for the purpose, for which reason, “the individual risk level resulting from any incident occurring from the Pandacan Terminal, per the QRA study, is twenty (20) times lower compared to the individual risk level of an average working or domestic environment.”[131]
We are not persuaded.
The issue of whether or not the Pandacan Terminal is not a likely target of terrorist attacks has already been passed upon in G. R. No. 156052. Based on the assessment of the Committee on Housing, Resettlement and Urban Development of the City of Manila and the then position of the Sangguniang Panlungsod,[132] the Court was convinced that the threat of terrorism is imminent. It remains so convinced.
Even assuming that the respondents and intervenors were correct, the very nature of the depots where millions of liters of highly flammable and highly volatile products, regardless of whether or not the composition may cause explosions, has no place in a densely populated area. Surely, any untoward incident in the oil depots, be it related to terrorism of whatever origin or otherwise, would definitely cause not only destruction to properties within and among the neighboring communities but certainly mass deaths and injuries.
With regard to the scaling down of the operations in the Pandacan Terminals, which the oil companies continue to insist to have been validated and recognized by the MOU, the Court, in G.R. No. 156052, has already put this issue to rest. It specifically declared that even assuming that the terms of the MOU and Ordinance No. 8027 were inconsistent, the resolutions ratifying the MOU gave it full force and effect only until 30 April 2003.[133]
The steps taken by the oil companies, therefore, remain insufficient to convince the Court that the dangers posed by the presence of the terminals in a thickly populated area have already been completely removed.
For, given that the threat sought to be prevented may strike at one point or another, no matter how remote it is as perceived by one or some, we cannot allow the right to life to be dependent on the unlikelihood of an event. Statistics and theories of probability have no place in situations where the very life of not just an individual but of residents of big neighborhoods is at stake.
IV
It is the removal of the danger to life not the mere subdual of risk of catastrophe, that we saw in and made us favor Ordinance No. 8027. That reason, unaffected by Ordinance No. 8187, compels the affirmance of our Decision in G.R. No. 156052.
In striking down the contrary provisions of the assailed Ordinance relative to the continued stay of the oil depots, we follow the same line of reasoning used in G.R. No. 156052, to wit:
There is, therefore, no need to resolve the rest of the issues.
Neither is it necessary to discuss at length the test of police power against the assailed ordinance. Suffice it to state that the objective adopted by the Sangguniang Panlungsod to promote the constituents’ general welfare in terms of economic benefits cannot override the very basic rights to life, security and safety of the people.
In. G.R. No. 156052, the Court explained:
As in the prequel case, we note that as early as October 2001, the oil companies signed a MOA with the DOE obliging themselves to:
A comprehensive and well-coordinated plan within a specific time-frame shall, therefore, be observed in the relocation of the Pandacan Terminals. The oil companies shall be given a fresh non-extendible period of forty-five (45) days from notice within which to submit to the Regional Trial Court, Branch 39, Manila an updated comprehensive plan and relocation schedule. The relocation, in turn, shall be completed not later than six months from the date of their submission.
Finally, let it be underscored that after the last Manifestation filed by Shell informing this Court that respondent former Mayor Lim vetoed Ordinance No. 8283 for the second time, and was anticipating its referral to the President for the latter’s consideration, nothing was heard from any of the parties until the present petitions as to the status of the approval or disapproval of the said ordinance. As it is, the fate of the Pandacan Terminals remains dependent on this final disposition of these cases.
VI
On the matter of the failure of Atty. Gempis to immediately comply with the directives of this Court to file the Memorandum for the Vice-Mayor and the city councilors who voted in favor of the assailed Ordinance, the records do not bear proof that he received a copy of any of the resolutions pertaining to the filing of the Memorandum.
A narration of the events from his end would show, however, that he was aware of the directive issued in 2009 when he stated that “when the City Legal Officer filed its Memorandum dated 8 February 2010, [he] thought the filing of a Memorandum for the other respondent city officials could be dispensed with.”[139] There was also a categorical admission that he received the later Resolution of 31 May 2011 but that he could not prepare a Memorandum defending the position of respondents vice-mayor and the city councilors who voted in favor of Ordinance No. 8187 in view of the on-going drafting of Ordinance No. 8283, which would change the position of the Sanggunian, if subsequently approved.
The reasons he submitted are not impressed with merit.
That he was not officially designated as the counsel for the vice-mayor and the city councilors is beside the point. As an officer of the court, he cannot feign ignorance of the fact that “a resolution of this Court is not a mere request but an order which should be complied with promptly and completely.”[140] As early as 2009, he should have immediately responded and filed a Manifestation and therein set forth his reasons why he cannot represent the vice-mayor and the city councilors. And, even assuming that the 31 May 2011 Resolution was the first directive he personally received, he had no valid excuse for disregarding the same. Worse, the Court had to issue a show cause order before he finally heeded.
Atty. Gempis should “strive harder to live up to his duties of observing and maintaining the respect due to the courts, respect for law and for legal processes and of upholding the integrity and dignity of the legal profession in order to perform his responsibilities as a lawyer effectively.”[141]
In Sibulo v. Ilagan,[142] which involves a lawyer’s repeated failure to comply with the directives of the Court, the penalty recommended by the Integrated Bar of the Philippines was reduced from suspension to reprimand and a warning. The Court ratiocinated:
WHEREFORE, in light of all the foregoing, Ordinance No. 8187 is hereby declared UNCONSTITUTIONAL and INVALID with respect to the continued stay of the Pandacan Oil Terminals.
The incumbent mayor of the City of Manila is hereby ordered to CEASE and DESIST from enforcing Ordinance No. 8187. In coordination with the appropriate government agencies and the parties herein involved, he is further ordered to oversee the relocation and transfer of the oil terminals out of the Pandacan area.
As likewise required in G.R. No. 156052, the intervenors Chevron Philippines, Inc., Pilipinas Shell Petroleum Corporation, and Petron Corporation shall, within a non-extendible period of forty-five (45) days, submit to the Regional Trial Court, Branch 39, Manila an updated comprehensive plan and relocation schedule, which relocation shall be completed not later than six (6) months from the date the required documents are submitted. The presiding judge of Branch 39 shall monitor the strict enforcement of this Decision.
For failure to observe the respect due to the Court, Atty. Luch R. Gempis, Jr., Secretary of the Sangguniang Panlungsod, is REMINDED of his duties towards the Court and WARNED that a repetition of an act similar to that here committed shall be dealt with more severely.
SO ORDERED.
Sereno, Chief Justice, join J. Leonen in his Concurring & Dissenting Opinion.
Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Villarama, Jr., Mendoza, Reyes, and Perlas-Bernabe, JJ., concur.
Carpio, J., no part one of the counsels is my former law firm.
Brion, J., on leave.
Leonen, J., see separate concurring and dissenting opinion.
Jardeleza, J., No part. Intervenor part former employer group.
[1] In a Resolution dated 21 July 2009, the Court granted the motion to drop respondent Ernesto Rivera as a party-respondent on the ground that he actually voted against the enactment of the assailed ordinance. Rollo in G.R. No. 187916, Vol. I, (no proper pagination, should be pp. 148-149).
[2] Rollo in G.R. No. 187836, Vol. I, pp. 3-20. Petition (for Prohibition) filed on 1 June 2009; rollo in G.R. No. 187916, Vol. I, pp. 11-115. Urgent Petition for Prohibition, Mandamus and Certiorari (with Application for an Injunction and Temporary Restraining Order) filed on 5 June 2009. Id. at 116. Resolution dated 9 June 2009 consolidating G.R. No. 187916 with G.R. No. 187836.
[3] Approved by former Mayor Alfredo S. Lim on 28 May 2009. Rollo in G.R. No. 187916, Vol. I, pp. 70-75. Annex “A” of the Urgent Petition for Prohibition, Mandamus and Certiorari.
[4] Approved by former Mayor Jose L. Atienza, Jr. on 28 November 2001. Id. at 76-77. Annex “B” of the Urgent Petition for Prohibition, Mandamus and Certiorari.
[5] Approved by former Mayor Jose L. Atienza on 16 June 2006. Id. at 78-115. Annex “C” of the Urgent Petition for Prohibition, Mandamus and Certiorari.
[6] In a Resolution dated 21 July 2009, the Court granted the motion to drop respondent Ernesto Rivera as a party-respondent on the ground that he actually voted against the enactment of the assailed ordinance. Rollo in G.R. No. 187916, Vol. I, (no proper pagination, should be pp. 148-149).
[7] Rollo in G.R. No. 187836, Vol. III, pp. 917-1065, Motion for Leave to Intervene filed by Petron on 1 December 2009; pp. 1234-1409, Urgent Motion for Leave to Intervene and to Admit Attached Comment-in-Intervention filed by Shell on 15 December 2009; rollo in G.R. No. 187916, Vol. II, pp. 367-373, Motion for Leave to Intervene and Admit Attached Consolidated Comment in Intervention filed by Chevron on 25 November 2009.
[8] 546 Phil. 485 (2007). Decision and Resolution 568 Phil. 658 (2008).
[9] Social Justice Society v. Hon. Atienza, Jr., 568 Phil. 658, 703 (2008).
[10] Id. at 684.
[11] Id. at 699.
[12] Id. at 723.
[13] Id. at 673-676.
[14] Rollo in G.R. No. 187916, Vol. II, pp. 428-432. Annex “1” of the Urgent Petition for Prohibition, Mandamus and Certiorari.
The MOA reads:
x x xx
1. Immediately upon the execution of this Agreement, CALTEX, PETRON and SHELL shall jointly undertake a comprehensive and comparative study of the various alternatives to minimize the potential risks and hazards posed by the proximity of communities, businesses and offices to the Pandacan oil terminals and to respond to such risks and hazards to the satisfaction of the relevant stakeholders. The study shall include the preparation of a Master Plan, whose aim is to determine the scope and timing of the feasible relocation of the Pandacan oil terminals and all associated facilities and infrastructure including government support essential for the relocation such as the necessary transportation infrastructure, land and right of way acquisition, resettlement of displaced residents and environmental and social acceptability which shall be based on mutual benefit of the Parties and the public.
The study and Master Plan shall also take into full consideration (i) the integrity, reliability and security of supply and distribution of petroleum products to Metro Manila and the rest of Luzon as well as the interest of consumers and users of such petroleum products; (ii) the impact of relocation on the other depots/terminals similarly situated in other parts of the country; (iii) the security, safety and welfare of the inhabitants around the current site and those of the proposed sites; and (iv) the incremental investment, operating and other related costs for the proposed relocation.
The study and Masterplan shall be completed within twelve (12) months from the date of execution of this Agreement.
2. The DOE shall participate in the presentation of the study and Master Plan by, among others, providing the policy framework and recommending the necessary infrastructure, fiscal and non-fiscal, investment incentives and other support measures as enumerated in paragraph 1 above including the promotion of appropriate legislative proposals, coordination with other government agencies, identification of the necessary governmental resources and the provision of other measures that would facilitate the attainment of objectives of this Agreement.
3. Subject to paragraphs 1 & 2 hereof, the Master Plan shall be implemented in phases to be completed within a period of no more than five (5) years from the date of execution of this Agreement; provided, that the commencement of the first phase shall occur within 2003.
4. The relocation of the Pandacan liquefied petroleum gas (LPG), facilities of CALTEX, PETRON and SHELL shall form part of the first phase of relocation.
x x x x
[15] Id. at 429.
[16] Id.
[17] Id.
[18] Id.
[19] Rollo in G.R. No. 187916, Vol. I, p. 76.
The Ordinance reads:
[21] Id. at 435.
[22] Id. at 435-436.
The oil companies undertook to do the following:
Section 1. - Consistent with the objectives stated above, the OIL COMPANIES shall, upon signing of this MOU, undertake a program to scale down the Pandacan Terminals which shall include, among others, the immediate removal/decommissioning process of TWENTY EIGHT (28) tanks starting with the LPG spheres and the commencing of works for the creation of safety buffer and green zones surrounding the Pandacan Terminals. x x x
Section 2. – Consistent with the scale-down program mentioned above, the OIL COMPANIES shall establish joint operations and management, including the operation of common, integrated and/or shared facilities, consistent with international and domestic technical, safety, environmental and economic considerations and standards. Consequently, the joint operations of the OIL COMPANIES in the Pandacan Terminals shall be limited to the common and integrated areas/facilities. A separate agreement covering the commercial and operational terms and conditions of the joint operations, shall be entered into by the OIL COMPANIES.
Section 3. - The development and maintenance of the safety and green buffer zones mentioned therein, which shall be taken from the properties of the OIL COMPANIES and not from the surrounding communities, shall be the sole responsibility of the OIL COMPANIES.
The City of Manila and DOE, on the other hand, tasked themselves to:
Section 1. - The City Mayor shall endorse to the City Council this MOU for its appropriate action with the view of implementing the spirit and intent thereof.
Section 2. - The City Mayor and the DOE shall, consistent with the spirit and intent of this MOU, enable the OIL COMPANIES to continuously operate in compliance with legal requirements, within the limited area resulting from the joint operations and the scale down program.
Section 3. - The DOE and the City Mayor shall monitor the OIL COMPANIES’ compliance with the provisions of this MOU.
Section 4. - The CITY OF MANILA and the national government shall protect the safety buffer and green zones and shall exert all efforts at preventing future occupation or encroachment into these areas by illegal settlers and other unauthorized parties.
[23] Id. at 580-581. Annex “6” of the Consolidated Comment in Intervention.
[24] Id. at 582.
[25] Supra note 8.
[26] Id. at 490.
[27] Social Justice Society v. Hon. Atienza, Jr., supra note 9 at 671.
[28] Id.
[29] Rollo in G.R. No. 187916, Vol. I, pp. 78-115. Annex “C” of the Urgent Petition for Prohibition, Mandamus and Certiorari.
[30] Id. at 79-80.
SEC. 7. Division into Zones or Districts – To effectively carry out the provisions of this Ordinance, the City of Manila is hereby divided into the following zones or districts as shown in the Official Zoning Maps.
SEC. 23. Use Regulations in Planned Unit Development/Overlay Zone (O-PUD). – O-PUD Zones are identified specific sites in the City of Manila wherein the project site is comprehensively planned as an entity via unitary site plan which permits flexibility in planning/design, building siting, complementarily of building types and land uses, usable open spaces and the preservation of significant natural land features, pursuant to regulations specified for each particular PUD. Enumerated below are identified PUD:
[33] Social Justice Society v. Mayor Atienza, Jr. supra note 8 at 494.
[34] Id. at 490-491.
[35] Id. at 493-494.
[36] Social Justice Society v. Hon. Atienza, Jr., supra note 9 at 673.
[37] Id. at 723.
[38] Id. at 1792-1793.
[39] Rollo in G.R. No. 156052, pp. 1793. Manifestation and Motion filed on 18 March 2009.
[40] Id. at 1792 -1803.
[41] Id. at 1813-1816. Resolution dated 28 April 2009.
[42] Id. at 1816.
[43] Id. (no proper pagination, should be pp. 1844-1845. Resolution dated 2 June 2009.
[44] Id. (no proper pagination, should be p. 1846). Resolution dated 9 June 2009 with respect to the City Legal Office’s Motion to Excuse from Filing Comment (on Petitioners’ Manifestation and Motion and on Petitioners’ Very Urgent Motion to Cite the Members of the City Council in Direct Contempt of Court), and the Comment. Id. (no proper pagination, should be pp. 1880-1881). Resolution dated 23 June 2009 with respect to the Reply to the Comment filed by the counsel for the petitioners.
[45] Rollo, in G.R. No. 187916, Vol. I, pp. 70-74.
The Ordinance reads:
ORDINANCE NO. 8187
AN ORDINANCE AMENDING ORDINANCE NO. 8119, OTHERWISE KNOWN AS “THE MANILA COMPREHENSIVE LAND USE PLAN AND ZONING ORDINANCE OF 2006”, BY CREATING A MEDIUM INDUSTRIAL ZONE (1-2) AND HEAVY INDUSTRIAL ZONE (1-3), AND PROVIDING FOR ITS ENFORCEMENT.
Be it ordained by the City Council of Manila, in session, assembled, THAT:
SECTION 1. Ordinance No. 8119, otherwise known as the “Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006” is hereby amended by creating a Medium Industrial Zone (1-2) and Heavy Industrial Zone (1-3) to read as follows:
The City Planning and Development Office (CPDO) shall prepare an amended Zoning Map and Zoning Boundaries which shall be submitted to the City Council for review.
SEC. 3. The Zoning Fees shall be P10/sq. m. of total floor area for MEDIUM INDUSTRIAL ZONE (1-2) and P10/sq. m. of total floor area for HEAVY INDUSTRIAL ZONE (1-3).
SEC. 4. Repealing Clause. – Ordinance No. 8027, Section 23 of Ordinance No. 8119 and all other Ordinances or provisions therein inconsistent with the provisions of this Ordinance are hereby repealed, amended, rescinded or modified accordingly.
SEC. 5. Effectivity Clause. – This Ordinance shall take effect fifteen (15) days after its publication in accordance with law.
x x x x.
[46] Id. at 74.
Sec. 4 of Ordinance No. 8187 reads:
SEC. 4. Repealing Clause. – Ordinance No. 8027, Section 23 of Ordinance No. 8119 and all other Ordinances or porvisions therein inconsistent with the provisions of this Ordinance are hereby repealed, amended, rescinded or otherwise modified accordingly.
[47] Section 18. Legislative powers. – The Municipal Board shall have the following legislative powers:
[49] Article 8, Civil Code.
[50] Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.
[51] Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.
[52] SEC. 4. Recognition of Rights. - Pursuant to the above-declared principles, the following rights of citizens are hereby sought to be recognized and the State shall seek to guarantee their enjoyment:
[a] The right to breathe clean air;
[b] The right to utilize and enjoy all natural resources according to the principles of sustainable development;
[c] The right to participate in the formulation, planning, implementation and monitoring of environmental policies and programs and in the decision-making process;
[d] The right to participate in the decision-making process concerning development policies, plans and programs projects or activities that may have adverse impact on the environment and public health;
[e] The right to be informed of the nature and extent of the potential hazard of any activity, undertaking or project and to be served timely notice of any significant rise in the level of pollution and the accidental or deliberate release into the atmosphere of harmful or hazardous substances;
[f] The right of access to public records which a citizen may need to exercise his or her rights effectively under this Act;
[g] The right to bring action in court or quasi-judicial bodies to enjoin all activities in violation of environmental laws and regulations, to compel the rehabilitation and cleanup of affected area, and to seek the imposition of penal sanctions against violators of environmental laws; and
[h] The right to bring action in court for compensation of personal damages resulting from the adverse environmental and public health impact of a project or activity.
[53] SEC. 12. Ambient Air Quality Guideline Values and Standards.- The Department, in coordination with other concerned agencies, shall review and or revise and publish annually a list of hazardous air pollutants with corresponding ambient guideline values and/or standard necessary to protect health and safety, and general welfare. The initial list and values of the hazardous air pollutants shall be as follows:
a) For National Ambient Air Quality Guideline for Criteria Pollutants:
a) Variable, including atmospheric conditions, which of themselves or in combination with other factors may alter the effects on public health or welfare of such air pollutant;
b) The other types of air pollutants which may interact with such pollutant to produce an adverse effect on public health or welfare; and
c) The kind and extent of all identifiable effects on public health or welfare which may be expected from presence of such pollutant in the ambient air, in varying quantities.
The Department shall base such ambient air quality standards on World Health Organization (WHO) standards, but shall not be limited to nor be less stringent than such standards.
[54] SEC. 19. Pollution From Stationary Sources.- The Department shall, within two (2) years from the effectivity of this Act, and every two (2) years thereafter, review, or as the need therefore arises, revise and publish emission standards, to further improve the emission standards for stationary sources of air pollution. Such emission standards shall be based on mass rate of emission for all stationary source of air pollution based on internationally accepted standards, but not be limited to, nor be less stringent than such standards and with the standards set forth in this section. The standards, whichever is applicable, shall be the limit on the acceptable level of pollutants emitted from a stationary source for the protection of the public’s health and welfare.
With respect to any trade, industry, process and fuel-burning equipment or industrial plant emitting air pollutants, the concentration at the point of emission shall not exceed the following limits:
(1) Existing Sources
I. Daily And Half Hourly Average Values
Pursuant to Sec. 8 of this Act, the Department shall prepare a detailed action plan setting the emission standards or standards of performance for any stationary source the procedure for testing emissions for each type of pollutant, and the procedure for enforcement of said standards.
Existing industries, which are proven to exceed emission rates established by the Department in consultation with stakeholders, after a thorough, credible and transparent measurement process shall be allowed a grace period of eighteen (18) months for the establishment of an environmental management system and the installation of an appropriate air pollution control device: Provided, That an extension of not more than twelve (12) months may be allowed by the Department on meritorious grounds.
[55] SEC. 30. Ozone-Depleting Substances.- Consistent with the terms and conditions of the Montreal Protocol on Substances that Deplete the Ozone Layer and other international agreements and protocols to which the Philippines is a signatory, the Department shall phase out ozone-depleting substances.
Within sixty (60) days after the enactment of this Act, the Department shall publish a list of substances which are known to cause harmful effects on the stratospheric ozone layer.
[56]
Article 6
1. States Parties recognize that every child has the inherent right to life.
2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
[57]
Article 24
1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:
4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries.
[58]
Article 27
[60] Id. at 58-59.
[61] Rollo in G.R. No. 187916, Vol. IV, pp. 1846-1926.
[62] Resolutions dated 20 October 2009, rollo in G.R. No. 187916, Vol. I (no proper pagination, should be 319-320; 15 June 2010, rollo in G.R. No. 187916, Vol. IV, pp. 1979-1980; 31 August 2010, rollo in G.R. No. No. 187916, Vol. IV, pp. 2002-2003; 31 May 2011, rollo in G.R. No. 187916, Vol. V, pp. 2347-2348; and 17 July 2012, rollo in G.R. No. 187836, Vol. VI, pp. 2746-2747.
[63] Rollo in G.R. No. 187916, Vol. I, pp. 282-300.
[64] Id., Vol. IV, pp. 2128-2132.
[65] Id. at 2129.
[66] Id.
[67] Id., Vol. V, pp. 2661-2662.
The new Ordinance reads:
The bottom portion of Ordinance No. 8283 reads:
BY HIS HONOR, THE MAYOR ON 11 Sept. 2012,
I veto this Ordinance for being prejudicial to public welfare and in view of the pending cases in the Supreme Court (G.R. No. 187836 and G.R. No. 187916)
[69] Id. at 2516-2518.
[70] Id. at 2526-2534.
[71] Resolutions dated 20 October 2009, rollo in G.R. No. 187916, Vol. I (no proper pagination, should be 319-320); 15 June 2010, rollo in G.R. No. 187916, Vol. IV, pp. 1979-1980; 31 August 2010, rollo in G.R. No. No. 187916, Vol. IV, pp. 2002-2003; 31 May 2011, rollo in G.R. No. 187916, Vol. V, pp. 2347-2348; and 17 July 2012, rollo in G.R. No. 187836, Vol. VI, pp. 2746-2747.
[72] Rollo in G.R. No. 187916, Vol. IV, pp. 2495-2503.
[73] SECTION 481. Qualifications, Term Powers and Duties. – x x x
x x x x
(b) The legal officer, the chief legal counsel of the local government unit, shall take charge of the office for legal services and shall:
x x x x
In that case, the Court held:
[76] Basco v. Phil. Amusements and Gaming Corporation, 274 Phil. 323, 335 (1991) citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Hon. Tan, 246 Phil. 380, 385 (1988).
[77] Association of Small Landowners in the Philippines, Inc. v. Hon. Secretary of Agrarian Reform, 256 Phil. 777, 798 (1989).
[78] Sections 1 to 3, Rule 65 of the Rules of Court, provides:
[80] Resolution dated 13 April 2010 in A.M. No. 09-6-8-SC.
[81] Sec. 2, Part I, Rule I, Rules of Procedure for Environmental Cases.
[82] Id.
[83] Sec. 3, Part I, Rule I, Rules of Procedure for Environmental Cases.
[84] Rollo in G.R. No. 187916, Vol. IV, pp. 2202-2203. Memorandum of Shell citing Ortega v. Quezon City Government, 506 Phil. 373 (2005).
[85] 465 Phil. 529 (2004).
[86] Id. at 541 citing Philnabank Employees Association v. Estanislao, G.R. No. 104209, 16 November 1993, 227 SCRA 804, 811.
[87] Id. at 542 citing Tano v. Hon. Gov. Socrates, 343 Phil. 670, 698 (1997); Macasiano v. National Housing Authority, G.R. No. 107921, 1 July 1993, 224 SCRA 236, 243.
[88] Aquino v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623, 638 citing Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil 307 (2000) and Fortich v. Corona, 352 Phil. 461 (1998).
[89] Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307 (2000); Sen. Jaworski v. Phil. Amusement and Gaming Corp., 464 Phil. 375, 384 (2004).
[90] Sen. Jaworski v. Phil. Amusement and Gaming Corp., 464 Phil. 375, 385 (2004).
[91] Rollo in G.R. No. 187916, Vol. IV, p. 2100. Memorandum of Chevron.
Chevron relied on the ruling in Automotive Industry Workers Alliance v. Hon. Romulo, 489 Phil. 710, 718 (2005) where the Court held:
[93] 522 Phil. 705 (2006).
[94] Id. at 1859 citing Francisco, Jr. v. The House of Representatives, 460 Phil. 830 (2003).
[95] Id. citing Tolentino v. COMELEC, 465 Phil. 385 (2004).
[96] Rollo in G.R. No. 187916, Vol. IV, pp. 1858-1859 citing Francisco v. House of Representatives, 460 Phil. 830 (2003).
[97] Id.; Velarde v. Social Justice Society, G.R. No. 159357, 28 April 2004, 428 SCRA 283.
[98] Id.; Id. at 1863 citing Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA 792.
[99] Social Justice Society v. Mayor Atienza, Jr., supra note 8 at 492-493.
[100] G.R. No. 192088, 9 October 2012, 682 SCRA 602.
[101] Id. at 633-634.
[102] Rollo in G.R. No. 187836, Vol. V, p. 2144-2145. Memorandum of Petron citing Aduan v. Chong, G.R. No. 172796, 13 July 2009, 592 SCRA 508; see also Tañada v. Angara, 338 Phil. 546 (1997); Duero v. Court of Appeals, 424 Phil. 12 (2002); D.M. Consunji v. Esguerra, 328 Phil. 1168 (1996); and Planters Products, Inc. v. Court of Appeals, 271 Phil. 592 (1991) citing Carson v. Judge Pantanosas, Jr., 259 Phil. 628 (1989).
[103] G.R. No. 187167, 16 August 2011, 655 SCRA 476.
[104] Id. at 487-488.
[105] IBP v. Zamora, 392 Phil. 618, 632 (2000) citing Philippine Constitution Association v. Enriquez, G.R. Nos. 113105, 113174, 113766 and 113888, 19 August 1994, 235 SCRA 506 citing Luz Farms v. Secretary of the Department of Agrarian Reform, G.R. No. 86889, 4 December 1990, 192 SCRA 51; Dumlao v. Commission on Elections, 184 Phil. 369 (1980); and People v. Vera, 65 Phil. 56 (1937).
[106] Rollo in G.R. No. 187916, Vol. I, p. 62. Urgent Petition for Prohibition, Mandamus and Certiorari.
[107] Rollo in G.R. No. 187916, Vol. IV, p. 2097.
Sec. 163. Presentation of Community Tax Certificate on Certain Occassions. – (a) When an individiual subject to the community tax acknowledges any document before a notary public, takes the oath of office upon election or appointment to any position in the government service; receives any license, certificate, or permit from any public authority; pays any tax or fee; receives any money from any public fund; transacts other official business; or receives any salary or wage from any person or corporation, it shall be the duty of any person, officer or corporation with whom such transaction is made or business done or from whom any salary or wage is received to reequire such individual to exhibit the community tax certificate. x x x. (Emphasis and underscoring in the Memorandum of Chevron)
[108] Sec. 6. Jurat. - “Jurat” refers to an act in which an individual on a single occasion:
(a) appears in person before the notary public and presents an instrument or document; (b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; (c) signs the instrument or document in the presence of the notary; and (d) takes an oath or affirmation before the notary public as to such instrument or document.
[109] As amended by Resolution dated 19 February 2008 in A.M. No. 02-8-13-SC.
[110] Rollo in G.R. No. 187916, Vol. IV, p. 2216.
[111] 550 Phil. 98 (2007).
[112] Id. at 107.
[113] Id. at 108-110.
[114] Rollo in G.R. No. 156052 (no proper pagination, should be p. 1844). Resolution dated 2 June 2009.
[115] Supra note 110 at 110-111.
[116] Section 458(a)(2)(viii), Local Government Code.
[117] Tuzon v. Court of Appeals, G.R. No. 90107, 21 August 1992, 212 SCRA 739, 747.
[118] Social Justice Society v. Hon. Atienza, Jr. applying Section 458(a)(2)(viii) of the Local Government Code.
[119] Social Justice Society v. Mayor Atienza, Jr., supra note 8 at 493 citing supra note 116.
[120] Social Justice Society v. Hon. Atienza, Jr., supra note 9 at 703.
[121] Id. at 702.
[122] Rollo in G.R. No. 187916, Vol. I, p. 296. Comment of respondents Vice-Mayor Domagoso and the City Councilors who voted in favor of the assailed Ordinance.
[123] Id., Vol. IV, pp. 1852-1857. Memorandum of former Mayor Lim.
Former Mayor Lim narrated that when he received the draft Ordinance for his approval, he did not readily act upon it but took the time to seriously study the pros and cons of enacting the Ordinance; that he issued Executive Order No. 18 creating an ad hoc panel to conduct a study thereon; that the Assistant City Treasurer of Manila submitted to him a list of properties that would be affected by the proposed ordinance and the real property taxes they paid from 2007 to 2009; that he conducted a stakeholders’ consultative meeting composed of some Cabinet Secretaries and other officials, including the Joint Foreign Chamber of Commerce of the Philippines; that Engr. Rodolfo H. Catu (Engr. Catu), Officer in Charge of the City Planning and Development Office, together with the ad hoc panel earlier created, conducted an ocular inspection of the Pandacan Terminal, and submitted a favorable recommendation; that he also sought guidance from His Eminence, Gaudencio Cardinal Rosales; that he received a profile of the safety and security features installed at the Pandacan oil depots from Shell; that he likewise personally conducted an ocular inspection where he was assured by then President Arroyo and her cabinet secretaries, who happened to visit the site on the same day, that they interpose no objection to the proposed ordinance; and that the European Chamber of Commerce expressed support to the ordinance. It was only then that he made a decision to approve the Ordinance.
[124] Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
[125] Social Justice Society v. Hon. Atienza, Jr., supra note 9.
[126] Id. at 704-707.
[127] Rollo in G.R. No. 187916, Vol. IV, pp. 2103-2104. Memorandum of Chevron; rollo in G.R. No. 187836, Vol. V, pp. 2220-2225. Memorandum of Petron.
[128] Id. at 1883. Memorandum of former Mayor Lim.
[129] Id. at 2285-2310. Memorandum of Shell.
[130] Id. at 2112. Memorandum of Chevron. Emphasis supplied.
[131] Id. at 2280. Memorandum of Shell.
[132] Social Justice Society v. Hon. Atienza, Jr., supra note 9 at 702-703.
[133] Social Justice Society v. Mayor Atienza, Jr., supra note 8 at 494.
[134] Social Justice Society v. Hon. Atienza, Jr., supra note 9 at 702-720.
[135] Id. at 720.
[136] Id. at 722-723.
[137] Id. at 721.
[138] Id. at 723.
[139] Rollo in G.R. No. 187916, Vol. V, p. 2496. Compliance/Explanation with Urgent Manifestation of Atty. Gempis, Jr.
[140] Gone v. Atty. Macario Ga, A.C. No. 7771, 6 April 2011, 647 SCRA 243, 250.
[141] Sibulo v. Ilagan, 486 Phil. 197, 204 (2004) citing Canons 1, 7, and 11, Code of Professional Responsibility.
[142] Id.
[143] Id. at 204-205 citing Dr. Gamilla v. Atty. Mariño, Jr., 447 Phil. 419 (2003).
LEONEN, J.:
The Pandacan oil depots must go, not because Ordinance No. 8187 is unconstitutional, but because of Ordinance No. 8283. Due to its proposed doctrine, I regret that I am unable to bring myself to agree with the well-written ponencia of an esteemed colleague.
The petitions should be dismissed for being moot and academic in view of the manifestations[1] filed by respondents when the Sangguniang Panlungsod of Manila enacted City Ordinance No. 8283 entitled “An Ordinance Amending Section 2 of Ordinance No. 8187 by Reclassifying the Area where Petroleum Refineries and Oil Depots are Located from Heavy Industrial (I-3) to High Intensity Commercial/Mixed Use Zone (C3/MXD).”[2]
Considering that the petitions are now moot and academic, this court should have exercised judicial restraint and refrained from making any determination with regard to the validity of Ordinance No. 8187.
Even assuming that the petition is not yet moot, the petitions in G.R. Nos. 187836 and 187916 should be dismissed on procedural and substantive grounds.
Prefatory
The Sangguniang Panlungsod of Manila has the power to amend or repeal its zoning ordinances. A determination by this court in an earlier petition for mandamus denying challenges to the validity of an earlier ordinance on constitutional grounds does not necessarily render such ordinance as irrepealable. That earlier ordinance may still be repealed should the local government decide to change its policy. In fact, the local government has changed its policy by enacting Ordinance No. 8283, which amends Section 2 of Ordinance No. 8187.
Ordinance No. 8187 is entitled to a presumption of constitutionality. This presumption cannot be discharged with petitioners’ broad factual allegations properly challenged by respondents. This special civil action is not the proper forum to determine questions of fact.
The spectre of terrorism and the dangers of ecological destruction are easy to foist. But our fears should not be given such privilege so as to numb us to the possibility that the facts may not be as petitioners present them. The reality is that the ordinance now in question is the product of the political will of the citizens of Manila exercised through their duly elected representatives.
The Constitution entrusts us with the power of judicial review. We do not have the power to veto an ordinance.
There are other remedies available to petitioners more adequate for their purposes. The fields of environment and health law have progressed to allow the proper causes of action to be laid in the proper forum. Proper evidence needs to be received before we conclude with finality at the level of this court that businesses of private respondents actually destroy the environment and that they do so with impunity. The precautionary principle certainly does not sanction a suspension of judicial rules with respect to evidence, reason, and legal interpretation.
The case
The Pandacan terminal is located by the banks of the Pasig River.[3] It was constructed in 1914 and serves as the main artery for the storage and distribution of fuel to Metro Manila and the rest of Luzon.[4] It is linked to a permanent underground pipeline[5] that connects it to Pilipinas Shell Petroleum Corporation’s (Shell) refinery in Tabangao and Chevron’s finished products import terminal in San Pascual, both in the province of Batangas.[6]
Apart from the use of a pipeline, the location of the Pandacan terminal enables the delivery of fuel through barges. This is the mode of transportation utilized by Petron since its refinery is located in Limay, Bataan. When the terminal is located elsewhere, delivery of fuel may have to contend with traffic and other challenges.[7]
The Pandacan terminal is the focal point of this country’s fuel supply system. It provides 95% of the fuel supply in Metro Manila, 70% of the country’s shipping needs, 90% of the country’s demand for lubricants, and 75% of the country’s need for aviation fuel.[8]
The importance of the Pandacan terminal is also felt in the business sector because it provides livelihood to more than 3,000 retail stations in Regions I to IV and the National Capital Region.[9]
During the 1970s, the Philippines experienced fuel shortages. The shortage peaked in 1974, reaching a point where the country was almost paralyzed. Long queues at fuel stations were seen and, most of the time, the fuel stations ran out of fuel.[10]
Fortunately, the national government anticipated the fuel shortage. Republic Act No. 6173[11] was passed in 1971, creating the Oil Industry Commission. The Oil Industry Commission was mandated to perform the following:
On October 12, 2001, the Department of Energy entered into a memorandum of agreement with Chevron, Shell, and Petron to address the safety concerns brought about by the September 11, 2001 terrorist attacks in the United States. The parties agreed to conduct a study regarding the feasibility of relocating the Pandacan terminal.[15]
On November 20, 2001, the Sangguniang Panlungsod of Manila enacted Ordinance No. 8027.[16] Ordinance No. 8027, which took effect on December 28, 2001,[17] reclassified the area where the Pandacan terminal is located from Industrial II to Commercial I.[18]
Foreseeing that the effect of Ordinance No. 8027 could lead to a fuel shortage, then Manila Mayor Jose L. Atienza, Jr. (petitioner in G.R. No. 187916), Chevron, Shell, Petron, and then Department of Energy Secretary Vincent S. Perez, Jr., conducted dialogues.[19] On June 26, 2002, the City of Manila, the Department of Energy, Chevron, Shell, and Petron executed a memorandum of understanding (MOU) where the parties agreed to scale down the operations in the Pandacan terminal by decommissioning storage tanks and constructing buffer zones around the Pandacan terminal.[20]
The Sangguniang Panlungsod of Manila ratified the MOU in Resolution No. 97, Series of 2002. The MOU would be valid from July 25, 2002 until December 31, 2002. Business permits valid until December 31, 2002 were issued to Shell, Chevron, and Petron. Resolution No. 13, Series of 2003, extended the MOU’s validity until April 30, 2003. Again, business permits were issued with the same validity period as the MOU.[21]
Meanwhile, Social Justice Society (SJS) filed a petition for mandamus before this court on December 4, 2002. They prayed for the issuance of the writ of mandamus to compel Mayor Jose L. Atienza (Mayor Atienza) to enforce Ordinance No. 8027. This was docketed as G.R. No. 156052.[22]
Toward the end of the MOU’s validity in April 2003, Mayor Atienza refused to issue new business permits to Shell, Chevron, and Petron. This prompted Chevron to file a complaint before the Regional Trial Court of Manila for injunction, annulment of Manila City Ordinance No. 8027, specific performance and damages, with application for a temporary restraining order and writ of preliminary prohibitory and mandatory injunction. This case was filed on April 25, 2003 and docketed as Civil Case No. 03-106377.[23]
On the same day, Shell filed a petition for prohibition and mandamus with application for a temporary restraining order and writs of preliminary injunction and preliminary mandatory injunction. It assailed the validity of Ordinance No. 8027 and prayed for the enforcement of the MOU. This case was docketed as Civil Case No. 03-106380.[24]
The cases filed by Chevron and Shell were consolidated and raffled to Branch 39 of the Regional Trial Court of Manila. The trial court granted applications for the writs of preliminary mandatory injunction and preliminary prohibitory injunction.[25]
Petron later filed a petition assailing the validity of Ordinance No. 8027 and alleging violations of the Department of Energy law, deregulation law, the memorandum of agreement dated October 12, 2001, and the MOU dated June 28, 2002.[26]
On June 16, 2006, then Manila Mayor Atienza approved Ordinance No. 8119, also known as the Manila Comprehensive Land Use Plan and Zoning Regulations of 2006.[27] Ordinance No. 8119 reclassified the Pandacan terminal area from Industrial II to High Density Residential/Mixed Use Zone.[28]
The enactment of Ordinance No. 8119 triggered the filing of another complaint by Shell and Chevron before the Regional Trial Court of Manila. They filed a complaint for injunction and nullification of Ordinance No. 8119 with application for a writ of preliminary injunction, praying that Ordinance No. 8119 be declared unconstitutional. This was docketed as Civil Case No. 06-115334.[29]
Petron filed a motion to intervene in Civil Case No. 06-115334 but was denied. Hence, Petron filed its own complaint docketed as Civil Case No. 07-116700. A temporary restraining order was issued in favor of Petron, enjoining the enforcement of Ordinance No. 8119.[30]
On March 7, 2007, this court, through the First Division, granted the petition filed by SJS and directed that the mayor of the City of Manila immediately enforce Ordinance No. 8027.[31] Shell, Chevron, and Petron filed motions for leave to intervene and motions for reconsideration in intervention. They argued that there were legal impediments to the enforcement of Ordinance No. 8027 because of the cases they filed before the lower courts. On February 13, 2008, the First Division, through Chief Justice Corona, granted the motions to intervene, but denied the motions for reconsideration. The First Division also ordered the dismissal of Civil Case Nos. 03-106377 and 03-106380.[32]
Shell, Chevron, and Petron filed another motion for reconsideration on February 28, 2008.[33] This was denied with finality on April 28, 2009 in an En Banc resolution[34] on the ground that it was a second motion for reconsideration, a prohibited pleading under Rule 52, Section 2 of the Rules of Court.[35]
On May 28, 2009, then Manila Mayor Alfredo S. Lim (Mayor Lim) signed Ordinance No. 8187, “An Ordinance Amending City Ordinance No. 8119 Otherwise Known as ‘The Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006’ By Creating a Medium Industrial Zone (1-2) and Heavy Industrial Zone (1-3) and Providing for its Enforcement.”[36]
In essence, Ordinance No. 8187, a zoning ordinance, allows the continued stay of the oil depots in the Pandacan area. Ordinance No. 8187 also repeals the relevant portions of Ordinance No. 8027.
Petitioner SJS went directly to this court and filed a petition[37] for prohibition on June 1, 2009. This was docketed as G.R. No. 187836. Petitioners Mayor Atienza and the other parties followed suit on June 5, 2009 and filed a petition for prohibition, mandamus, and certiorari with application for an injunction and temporary restraining order.[38] This was docketed as G.R. No. 187916. These petitions were consolidated by this court.
The issues in this case are the following:
This dissent will focus on the substantive issue first.
I
The presumption of constitutionality
All laws, including ordinances, enjoy the presumption of constitutionality.[39] The reason behind this presumption has been discussed by this court as follows:
The Sangguniang Panlungsod of Manila and other local government units have the statutory power to enact zoning ordinances. Thus, Republic Act No. 7160 or the Local Government Code of 1991 grants the following powers to the Sangguniang Panlungsod of Manila:
The Local Government Code does not provide for a special procedure with regard to the passage of a zoning ordinance. However, Republic Act No. 7924[47] provides that:
Instead, petitioner Mayor Atienza argues that the passage of Ordinance No. 8187 was in violation of the procedure stated in Ordinance No. 8119, specifically:
We agree with respondent Mayor Lim. Furthermore, none of the petitioners presented clear basis to conclude that Ordinance No. 8187 violated any of the provisos in Section 81.
No clear basis and
compelling reasons
This court must be presented with clear basis and compelling reasons so as to overcome the presumption of statutory validity and constitutionality. We explained in Smart Communications, Inc. v. Municipality of Malvar, Batangas[53] that:
Unfortunately, the ponencia does not use these standards but instead anchors its conclusion on the existence of the prior case of Social Justice Society (SJS), et al. v. Hon. Atienza, Jr. or G.R. No. 156052. Thus:
II
Unresolved questions of fact
defeat a challenge to the legal or constitutional
validity of an ordinance
Petitioners make the following factual assertions:
First: Oil depots are inherently risky and pose a threat to the security of its surrounding community.[64]
Second: There is the confirmed presence of Jemaah Islamiyah in the country.[65] If the Philippines is not a target of terrorist attacks, then why did Congress pass Republic Act No. 9372, also known as the Human Security Act of 2007?[66]
Third: Ordinance No. 8187 allows the entry of pollutive and hazardous industries in Manila. This violates Article II, Sections 15 and 16 of the 1987 Constitution. It also violates Presidential Decree No. 1151, also known as the Philippine Environmental Policy.[67]
Fourth: The enactment of Ordinance No. 8187 was in bad faith because it was passed and signed into law a month after the denial with finality of the motion for reconsideration in G.R. No. 156052.[68]
SJS attached a committee report[69] to its memorandum, to convince this court why its petition for prohibition should be granted. However, that committee report pertains to Ordinance No. 8027. It is irrelevant. The circumstances that led to the enactment of Ordinance No. 8027 are different from more contemporary considerations that led respondents to the promulgation of Ordinance No. 8187. Contrary to the stance of petitioners, we cannot presume that the world always remains at status quo, that it is static, and it does not change.
In the ponencia:
Intervenor Shell manifests that its area in the Pandacan terminal will eventually become a mere distribution point. At present, it is in the process of transferring its fuel to the Shell terminals in Batangas, Bataan, La Union, and Muntinlupa.[73] As for its supply of aviation fuel, it will be delivered directly to the Ninoy Aquino International Airport.[74] Petron’s transfer and Shell’s reduction of their operations in Pandacan will reduce the terminal’s environmental footprint by more than 50%.[75]
Even the ponencia recognizes that the conditions have changed when it stated that:
With respect to terrorist organizations such as Jemaah Islamiyah being in this country, intervenor Petron rebuts by stating that it is extremely difficult to ascertain the objectives of terrorists.[78] Further, a survey of terrorist attacks from 2003 to 2009 reveals that the following areas have been the targets:
Shell alleged that safety measures are in place in the Pandacan terminal. The terminal employs around 300 security personnel, working round the clock in three shifts. Checkpoints and security outposts are located at the entrance and exits of the terminal. The area is equipped with closed circuit television cameras, capable of zooming and panning to get a bird’s eye view of all activities inside the terminal and its surrounding areas.[82]
In addition, the Pandacan terminal is in close proximity to Malacañang Palace. It is included in the “no-fly zone”. Any aircraft flying near the area can be “neutralized” by Malacañang Palace’s anti-aircraft gun batteries.[83]
With regard to the argument that Ordinance No. 8187 allows the entry of pollutive and hazardous industries in the City of Manila, Shell points out that Ordinance No. 8187 simply followed the classifications provided in the Housing and Land Use Regulatory Board Model Zoning Ordinance.[84] It does not necessarily mean that they are actually pollutive or hazardous. Thus, intervenor Shell states:
The arguments raised by petitioners are hypothetical. No convincing evidence was presented to show why oil depots are inherently risky or why oil depots are targets of terrorist attacks. The examples of fire incidents in other fuel facilities located in Puerto Rico and India[87] are insufficient to give us a scientific basis for concluding that the risks of simply having an oil depot are unmanageably high. The examples do not relate to the number of oil depots that have operated continuously without any safety problems.
To decide a controversy on the basis of hypothetical facts would have the effect of barring litigation between real parties with real causes of action.[88]
III
The earlier case of
Social Justice Society (SJS), et al. v. Hon. Atienza, Jr.,
G.R. No. 156052
Although dealing with a different ordinance with a different treatment of the Pandacan oil depots, the earlier doctrinal pronouncements in Social Justice Society (SJS) et al. v. Hon. Atienza, Jr.[89] or G.R. No. 156052 support this dissent.
This earlier case was a petition for mandamus filed directly before this court. It sought to compel the mayor of the City of Manila to enforce Ordinance No. 8027.
With the petition being an original one, it is wrong to conclude that this court made definitive factual findings that are binding in this case when it granted the writ of mandamus against respondent Mayor Lim. The petition was granted on the ground that since the validity of the memorandum of understanding executed between Chevron, Shell, Petron, and the City of Manila had expired, there was no more hindrance to the enforcement of Ordinance No. 8027.[90]
After the decision had been promulgated, motions for leave to intervene and motions for reconsideration were filed. In a resolution, this court granted the motions for leave to intervene but denied the motions for reconsideration.[91]
In denying the motion for reconsideration, this court ruled that Ordinance No. 8027 was not unconstitutional based on the challenge raised by Chevron, Shell, and Petron.[92] This court did not make the pronouncement that the ordinance cannot be repealed. This court certainly did not even make definitive findings of fact that would have prevented the Sangguniang Panlungsod of Manila to change its policy. In this case, it appears that the Sangguniang Panlungsod of Manila reconsidered its interpretation of the factual basis of the earlier ordinance, examined the viability of its policy in relation to the interests of its constituents, and passed Ordinance No. 8187. It is also clear that there were changes in the elected representatives of the City of Manila.
Social Justice Society (SJS), et al. v. Hon. Atienza, Jr. has the authority to hold that Ordinance No. 8027 was enacted in the exercise of police power.[93] It did not discriminate against the Pandacan terminal and the oil depots found therein.[94] Neither did the ordinance contravene Republic Act No. 7638[95] and Republic Act No. 8479.[96]Further, Ordinance No. 8027 does not prohibit the oil businesses from conducting their business in Manila, but they are no longer allowed to have an oil depot in the Pandacan terminal.[97]
This court denied the second motion for reconsideration for being a prohibited pleading.
No res judicata
Certainly, Social Justice Society (SJS) et al. v. Hon. Atienza, Jr. is not res judicata insofar as the present original petition is concerned.
The procedural vehicle is no longer mandamus in this case. Petitioner SJS filed a petition for prohibition. Petitioner Mayor Atienza now files a petition for prohibition, mandamus and certiorari. The earlier case sought to enforce an ordinance. SJS, in this case, seeks to enjoin the enforcement of an ordinance because:
No allegation and clear basis
for a finding that a law was violated in
enacting the ordinance
The petition filed by petitioner SJS in this case and its memorandum are extraordinary in that these are bereft of any substantial argument that clearly shows that Ordinance No. 8187 violates any law. The closest mention of any law is Section 458 of the Local Government Code of 1991 that grants the Sangguniang Panlungsod of Manila the power to enact ordinances for the general welfare.
Petitioner SJS recommends that we rule that:
The fallacy of the argument of petitioner SJS is obvious.
To begin with, not all talipapa are hazardous to public health and safety. In the case cited by petitioner SJS, the talipapa was “in the vicinity of the public market of San Fernando, Pampanga, along Mercado Street, a strip of land measuring 12 by 77 meters on which stands a conglomeration of vendors stalls.”[103] The vendors wanted to assert their right to remain in the area due to a previous authorization by the municipal government. The municipal government denied this right, insisting on the demolition of their structures because they were illegal constructions on public property. In deciding to uphold the municipal government, this court noted that the occupants proliferated under filthy conditions that added to the basis of the municipal government to assert its powers over the public space.[104] That case certainly did not denigrate all talipapa. Its reiteration of the findings of the municipal government certainly only applied to that specific set of vendor stalls.
Not all talipapa are the same. Not all are hazardous to public health and safety. It depends on the condition of the talipapa. These conditions can be found only upon the presentation of evidence in the proper judicial forum. Only after the presentation of evidence can the degree of risk and hazard be assessed in relation to the standards contained in law and corresponding regulations. Only after all these can courts rule whether to remove or demolish a talipapa.
The same considerations apply to oil depots. In this case, upon reassessing the facts and weighing the risks in relation to the necessity of the Pandacan oil depot, the Sangguniang Panlungsod of Manila found it proper to reverse its policy through a validly issued ordinance. Except for superficial arguments based on fallacies masquerading as common sense, petitioners here do not present us with facts that can be taken judicial notice of. Rather, petitioners present to us the same city council report that was submitted for the passage of Ordinance No. 8027, and not the report that served as basis for Ordinance No. 8187, which is the subject of this case.
The failure to discharge the burden of clearly showing the illegality of the ordinance is enough to dismiss the petition. However, the static view of the world presented by petitioners merits further attention.
The challenges and controversies surrounding the passage of the various ordinances relating to the Pandacan oil depot certainly also impel the corporations and the local government officials to install measures to further assure its public. We cannot accept the implied assumption of the petitioners that nothing in relation to the Pandacan oil depot has changed since this court’s decision and resolution in the earlier case of Social Justice Society (SJS), et al. v. Hon. Atienza, Jr.[105]
For instance, the ponencia in Social Justice Society (SJS), et al. v. Hon. Atienza, Jr. (2008 resolution) pointed out that:
In the Philippines, terrorists have targeted government buildings, public utility buses, fastfood outlet, beach resort, markets, and churches.[108] At the international level, terrorists have chosen trains, churches, mosques and other places where the faithful gather, police stations, hotels, embassies, and markets.[109] Not once has an oil depot been attacked.
“Western interests,” if such concept can be accepted despite its obvious ambiguity and potential to encompass much of modern life, are simply too omnipresent. To accept SJS’ theory would mean that it would be illegal and unconstitutional not to close down or isolate cars, residences of ambassadors, parking buildings, lounges, bars, restaurants, bus terminals, embassy buildings, hotels, and light rail transit coaches.
The panic does not end there. SJS expands even further to almost everything. Thus:
Doctrine in Social Justice Society
(SJS), et al. v. Hon. Atienza, Jr.
This much was recognized in Social Justice Society (SJS), et al. v. Hon. Atienza, Jr.[111]
No ordinance is irrepealable
Petitioners assail Ordinance No. 8187 because the ordinance effectively allows the oil depots to remain in the Pandacan terminal, allegedly contrary to this court’s decision in G.R. No. 156052. It, thus, concludes that the ordinance is illegal or unconstitutional.
Petitioners are mistaken.
Ordinance No. 8187 repealed Ordinance No. 8027. G.R. No. 156052 had Ordinance No. 8027 as its subject matter. There is no circumvention of the decision in G.R. No. 156052 simply because Ordinance No. 8027 no longer exists upon its valid repeal by the Sangguniang Panlungsod of Manila. Both ordinances were the result of the determination of policy by the City of Manila. Certainly, there is nothing in our decision in G.R. No. 156052 that categorically prevents the repeal of Ordinance No. 8027.
As this court has categorically stated, “there is no such thing as an irrepealable law.”[113] As explained in Duarte v. Dade:[114]
V
Violation of the doctrine of respect
for the hierarchy of courts
Respondents argue that the petitions should be dismissed because direct recourse to this court is improper. The allegations in the petitions involve factual issues that require the presentation of evidence. Also, Rule 65, Section 4 of the 1997 Rules of Civil Procedure provides:
In accordance with Article VIII, Section 5 of the 1987 Constitution, this court has jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. The same jurisdiction is granted to the Court of Appeals[120] and Regional Trial Courts[121] under Batas Pambansa Blg. 129.[122] Thus, there is concurrence of jurisdiction among this court, the Court of Appeals, and the Regional Trial Court with regard to petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
However, the concurrence of jurisdiction does not mean that parties are free to choose which court to seek redress from. This court is the court of last resort, and observance of the doctrine of hierarchy of courts is necessary to prevent “(1) inordinate demands upon the time and attention of the court, which is better devoted to those matters within its exclusive jurisdiction; and (2) further overcrowding of the court’s docket.”[123]
In Anillo v. COSLAP,[124] this court explained that:
of hierarchy of courts
Nevertheless, this court has, from time to time, relaxed its rules and allowed the direct filing of petitions before it. The exceptions to the doctrine of hierarchy of courts include:
VI
Petitioners have no legal standing
In its memorandum, SJS alleges that it is suing not as taxpayers, but in pursuance of a public right. Since its members are Filipino citizens, it has the standing to pursue the public right without need to allege any specific interest in the public right. SJS also claims that Vladimir Alarique T. Cabigao resides in Pandacan and lives 300 meters away from the Petron oil depot and, as such, has a substantial interest.[127]
In G.R. No. 187916, some of the petitioners are minors claiming to represent their own generation and future generations. However, unlike Oposa v. Factoran,[128] the minors in this case do not appear to be representative enough of the interests of their generation as to consider their petition to be a class suit.
On the contrary, Shell, Chevron, and Petron point out that petitioners neither alleged any particular injury suffered nor did they allege any imminent injury brought about by Ordinance No. 8187.
In cases involving issues of constitutionality, the party raising the issue of constitutionality must have locus standi. Locus standi has been defined as “a right of appearance in a court of justice on a given question.”[129] The basic question in determining if one has locus standing is “whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.”[130]
The requirement that one must have locus standi comes from Article VIII, Section 1 of the 1987 Constitution, which states that:
Transcendental importance
Petitioners try to justify its direct recourse to this court by arguing that the issues raised in their petitions are of “transcendental importance.”[137]
To determine if an issue is of transcendental importance, this court is guided by the parameters set forth in Francisco v. House of Representatives:[138]
Petitioners are mistaken. Whether an issue is of transcendental importance is a matter determined by this court on a case-to-case basis. An allegation of transcendental importance must be supported by the proper allegations.
Petitioners, however, merely stated:
VII
There are other remedies available
Respondents and intervenors point out that more appropriate remedies are available to petitioners. As petitioners’ allegations relate to the environment, they could have filed civil, criminal, or special civil actions before the lower courts, and prayed for the issuance of the writ of kalikasan, or environment protection orders, as provided by the rules of procedure for environmental cases. Chevron raised the argument that since petitioners allege that the Pandacan terminal is hazardous and pollutive, then the proper remedy is not to enjoin the enforcement of Ordinance No. 8187 but to enjoin the hazardous and pollutive activities inside the terminal.[143]
I agree with respondents.
Petitioners could have availed themselves of the remedy of a writ of kalikasan if they could properly and clearly show grave danger to the environment.
Petitioners may argue that their petitions were filed ahead of the promulgation of the rules of procedure for environmental cases. However, procedural rules are generally given retroactive effect since there are no vested rights in rules of procedure.[144]
Rule 7, Section 1 of A.M. No. 09-6-8-SC[145] provides:
If petitioners had evidence, they could also file an action for abatement of nuisance, considering that in their memorandum, they characterized the oil depot as a nuisance per accidens. Their memorandum states:
Section 120 and Section 126 of Republic Act No. 7160 define local initiative and local referendum as:
Two of the signatories in the petition for referendum, Vladimir Cabigao and Rafael Borromeo, are petitioners in this case.[153]
Petitioners definitely had other plain, speedy, and adequate remedies. On this ground alone, the petition should have been dismissed.
VIII
Enactment of Ordinance No. 8283
renders this case moot and academic
Intervenor Shell filed a manifestation with motion to dismiss dated September 2, 2013, informing this court that Ordinance No. 8283 was published in The Manila Times[154] and took effect on September 30, 2012.[155] Shell prays that the petitions be dismissed for being moot and academic.[156] In the same manifestation, Shell stated that it filed a petition for declaratory relief docketed as Case No. 131034 questioning Ordinance No. 8283 before the Regional Trial Court of Makati City.[157]
Respondent Luch R. Gempis, Jr., Secretary of the Sangguniang Panlungsod of Manila, filed a compliance/explanation with urgent manifestation dated September 13, 2012, informing this court that the Sangguniang Panlungsod of Manila enacted Ordinance No. 8283 on August 28, 2012.[158] The relevant portions of Ordinance No. 8283 provides:
Whether Mayor Lim’s second veto was overridden does not appear on record. However, considering this court’s pronouncement in City of Manila v. Hon. Laguio, Jr.,[164] the applicable law in this case is Republic Act No. 7160 and not Republic Act No. 409. Section 55(c) of Republic Act No. 7160 provides:
In any case, to rule upon the validity of Ordinance No. 8187 would be of no use since the ordinance has been amended and, thus, conditions may have changed.
This court is mindful that the power of judicial review should be exercised with caution. Judicial pronouncements on the validity and constitutionality of laws must be narrowly tailored to actual facts and issues in order to prevent judicial overreach[171] and ensure that the remedy sought is appropriate to the cause of action.[172] Actual facts that have been duly proven provide the limits to the scope of judicial review that this court may exercise in a particular case.[173] In view of these principles, this court must refrain from ruling upon the validity of Ordinance No. 8187.
Final note
Mayor Atienza argues that Ordinance No. 8187 violates the precautionary principle in international environmental law.[174] Intervenor Shell refutes this by arguing that the precautionary principle only applies “when scientific investigation has found a plausible risk.”[175]
The precautionary principle applies when it can be shown that there is plausible risk, and its causes cannot be determined with scientific certainty. It is not available simply on the basis of imagined fears or imagined causes. Otherwise, it will be absurd. Rather than a reactive approach to fear, the precautionary principle is evolving as a proactive approach in protecting the environment.[176] Furthermore, being only a principle, it does not trump the requirements for proper invocation of remedies or act to repeal existing laws.
Petitioners’ fears with regard to the prolonged stay of the oil companies in the Pandacan terminal should be assuaged by the execution of the MOU in 2002 among the Department of Energy, City of Manila, Caltex (Philippines), Inc., Petron Corporation, and Pilipinas Shell Petroleum Corporation.[177] Although it appears that the validity of the MOU expired on April 30, 2003,[178] the oil companies continued to fulfill their responsibilities under the MOU. Several tanks have been decommissioned and dismantled,[179] including Shell’s LPG spheres.[180] Petron filed a manifestation,[181] informing this court that within five years, or not later than January 2016, it will cease the operations of its petroleum storage facilities in Pandacan due to environmental concerns and the frequent changes in the zoning ordinances.[182] Buffer zones were constructed to protect both the terminal and the nearby residential area.[183] The oil companies intend to continuously scale down its operations in the Pandacan terminal, lessening operations by around 80% in five years.[184]
Further, the Sangguniang Panlungsod of Manila enacted Ordinance No. 8283 on August 28, 2012,[185] which reclassifies the Pandacan terminal from a heavy industrial zone to a high intensity commercial/mixed use zone.[186]According to news reports,[187] Mayor Joseph Estrada is enforcing Ordinance No. 8283 and has informed the oil companies that they should relocate by January 2016.
Petitioners’ aggressive vigilance to protect the community’s security and its environment is laudable. However, the resources that they deployed would have been best used in the political forum. This court’s jurisdiction is limited by the rule of law. The policy decision to remove or gradually phase out the Pandacan oil depot is left to the representatives of the people of the City of Manila. We cannot replace their political decision with our own no matter how convinced we are of our own policy positions.
ACCORDINGLY, I vote to dismiss the petitions in G.R. No. 187836 and G.R. No. 187916 for being moot and academic.
[1] Rollo (G.R. No. 187836), pp. 2757–2765 (respondent’s manifestation) and 2813–2820 (respondent-intervenor Pilipinas Shell Petroleum Corporation’s manifestation). The compliance/explanation with urgent manifestation dated September 13, 2012 of respondent was filed by Luch R. Gempis, Jr., Secretary of the Sangguniang Panlungsod of Manila. The manifestation with motion to dismiss dated September 2, 2013 of respondent-intervenor Pilipinas Shell Petroleum Corporation likewise informed this court of the enactment of Ordinance No. 8283.
[2] Id. at 2760.
[3] Id. at 2031.
[4] Id. at 2029–2030.
[5] Id. at 2032. The pipeline was inaugurated in 1969.
[6] Id. at 2031.
[7] Id.
[8] Id. at 2030 and 2526. The data supplied by Chevron and Shell in their memoranda does not indicate the specific years when the data was collected.
[9] Id. at 2030.
[10] Id. at 2032.
[11] An Act Declaring a National Policy on the Petroleum Industry, Regulating the Activities and Relations of Persons and Entities engaged therein, Establishing an Oil Industry Commission to Effectuate the Same, and Defining its Functions, Powers and Objectives, and for Other Purposes (1971). Rep. Act No. 6173 was subsequently amended by Pres. Decrees numbered 56, 102, 389-A, 429-A, 456 and 1128.
[12] Pres. Decree No. 1206 (1977), otherwise known as Creating the Department of Energy.
[13] Pres. Decree No. 1206 (1977), sec. 1.
[14] An Act Deregulating the Downstream Oil Industry, and for Other Purposes (1998).
[15] Rollo (G.R. No. 187836), p. 2035.
[16] Ordinance Reclassifying the Land Use of that Portions of Land Bounded by the Pasig River in the North, PNR railroad track in the East, Beata St. in the South, Palumpong St. in the Southwest, and Estero de Pandacan in the West, PNR railroad in the Northwest Area, Estero de Pandacan in the Northeast, Pasig River in the Southeast and Dr. M.L. Carreon in the Southwest; The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St. and the F. Manalo Street from Industrial II to Commercial I (2001).
[17] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 568 Phil. 658, 668 (2008) [Per J. Corona, First Division].
[18] Rollo (G.R. No. 187836), pp. 2034–2035.
[19] Id. at 2036.
[20] Id. at 2037.
[21] Id. at 2038.
[22] Id. at 2040.
[23] Id. at 2040–2041.
[24] Id. at 2041.
[25] Id.
[26] Id. at 2042.
[27] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 568 Phil. 658, 671 (2008) [Per J. Corona, First Division].
[28] Id. at 2043.
[29] Id.
[30] Id. at 2043–2044.
[31] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 546 Phil. 485, 494 (2007) [Per J. Corona, First Division].
[32] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 568 Phil. 658, 723 (2008) [Per J. Corona, First Division].
[33] Rollo (G.R. No. 187836), p. 2046.
[34] Id.
[35] Rule 52, sec. 2 of the Rules of Court states:
SEC. 2. Second motion for reconsideration. — No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.
[36] Rollo (G.R. No. 187836), p. 2047.
[37] Id. at 3–10.
[38] Rollo (G.R. No. 187916), pp. 11–67.
[39] Tano v. Hon. Gov. Socrates, 343 Phil. 670, 700 (1997) [Per J. Davide, Jr., En Banc], citing La Union Electric Cooperative v. Yaranon, 259 Phil. 457, 466 (1989) [Per J. Gancayco, First Division] and Francisco v. Permskul, 255 Phil. 311, 322 (1989) [Per J. Cruz, En Banc].
[40] Estrada v. Sandiganbayan, 421 Phil. 290, 342 (2001) [Per J. Bellosillo, En Banc].
[41] Ermita-Malate Hotel and Motel Operators Association, et al. v. City of Manila, 127 Phil. 306 (1967) [Per J. Fernando, En Banc].
[42] Id. at 314–315, citing U.S. v. Salaveria, 39 Phil. 102, 111 (1918) [Per J. Malcolm, En Banc].
[43] Estrada v. Sandiganbayan, 421 Phil. 290, 343 (2001) [Per J. Bellosillo, En Banc].
[44] Rep. Act No. 409 (1949), otherwise known as An Act to Revise the Charter of the City of Manila, and for Other Purposes.
[45] 495 Phil. 289 (2005) [Per J. Tinga, En Banc]. This case involved an ordinance, classified by the city council as a zoning ordinance, which prohibited the establishment or operation of certain businesses in the Ermita-Malate area.
[46] Id. at 332–334.
[47] An Act Creating the Metropolitan Manila Development Authority, Defining its Powers and Functions, Providing Funds therefor and for Other Purposes (1995).
[48] The Rules and Regulations Implementing R.A. No. 7924 became effective on June 8 1996.
[49] Providing for the Preparation and Implementation of the Comprehensive Land Use Plans of Local Government Units Pursuant to the Local Government Code of 1991 and Other Pertinent Laws (1993).
[50] Rollo (G.R. No. 187836), p. 1810.
[51] Id.
[52] Id. at 1810–1812.
[53] G.R. No. 204429, February 18, 2014[Per J. Carpio, En Banc], citing LAMP v. Secretary of Budget and Management, G.R. No. 164987, April 24, 2012, 670 SCRA 373 [Per J. Mendoza, En Banc].
[54] Id. at p. 13.
[55] G.R. No. 161107, March 12, 2013, 693 SCRA 141 [Per J. Mendoza, En Banc].
[56] Id. at 157, citing White Light Corporation v. City of Manila, 596 Phil. 444 (2009) [Per J. Tinga, En Banc].
[57] 495 Phil. 289 (2005) [Per J. Tinga, En Banc].
[58] Id. at 308.
[59] Hon. Ma. Lourdes C. Fernando, in her capacity as City Mayor of Marikina City, et al. v. St. Scholastica’s College and St. Scholastica’s Academy-Marikina, Inc., G.R. No. 161107, March 12, 2013, 693 SCRA 141, 157 [Per J. Mendoza, En Banc].
[60] Id. at 158, citing Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 546 Phil. 485, 493 (2007) [Per J. Corona, First Division].
[61] 596 Phil. 444 (2009) [Per J. Tinga, En Banc].
[62] Id. at 462.
[63] Ponencia, pp. 50 and 53–54.
[64] Rollo (G.R. No. 187836), p. 1761.
[65] Id. at 1768.
[66] Id. at 1770.
[67] Id. at 1773–1774.
[68] Id. at 1772.
[69] Id. at 1767.
[70] Ponencia, p. 53.
[71] Rollo (G.R. No. 187836), p. 2039.
[72] Id.
[73] Id. at 2368.
[74] Id. at 2369.
[75] Id.
[76] Ponencia, pp. 55–56.
[77] Rollo (G.R. No. 187836), pp. 2487–2488.
[78] Id. at 2222.
[79] Id. at 2223.
[80] Id. at 2224–2225.
[81] Id. at 2222.
[82] Id. at 2370.
[83] Id. at 2371.
[84] Id. at 2462.
[85] Id. at 2462–2463.
[86] Id. at 2115–2122.
[87] Id. at 1760–1761.
[88] J. Leonen, dissenting opinion in Imbong v. Ochoa, G.R. No. 204819, April 8, 2014[Per J. Mendoza, En Banc].
[89] 546 Phil. 485 (2007) [Per J. Corona, En Banc]; 568 Phil. 658 (2008) [Per J. Corona, First Division]. The 2008 Social Justice Society (SJS), et al. v. Hon. Atienza, Jr. case is a resolution on the interventions of Chevron Philippines, Inc., Petron Corporation, and Pilipinas Shell Petroleum Corporation.
[90] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 546 Phil. 485, 494 (2007) [Per J. Corona, First Division].
[91] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 568 Phil. 658, 723 (2008) [Per J. Corona, First Division].
[92] Id. at 720.
[93] Id. at 702–705.
[94] Id. at 708–709.
[95] An Act Creating the Department of Energy Rationalizing the Organization and Functions of Government Agencies Related to Energy, and for Other Purposes (1992).
[96] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 568 Phil. 658, 709–715 (2008) [Per J. Corona, First Division].
[97] Id. at 706.
[98] Rollo (G.R. No. 187836), p. 1758.
[99] Id. at 1765.
[100] 238 Phil. 136 (1987) [Per J. Cruz, First Division].
[101] Id. at 146.
[102] Rollo (G.R. No. 187836), p. 1767.
[103] Villanueva v. Castañeda, 238 Phil. 136, 139 (1987) [Per J. Cruz, First Division].
[104] Id. at 146.
[105] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 546 Phil. 485 (2007) and 568 Phil. 658 [Per J. Corona, First Division].
[106] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 568 Phil. 658, 703 (2008) [Per J. Corona, First Division].
[107] Rollo (G.R. No. 187836), pp. 1768–1770.
[108] Id. at 2224.
[109] Id. at 2223.
[110] Id. at 1770.
[111] 568 Phil. 658 (2008) [Per J. Corona, First Division].
[112] Id. at 683–684. See Ermita-Malate Hotel and Motel Operators Association, Inc. v. Hon. City Mayor of Manila, 127 Phil. 306, 325 (1967) [Per J. Fernando, En Banc]; US v. Salaveria, 39 Phil. 102, 110 (1918) [Per J. Malcolm, En Banc]; Angara v. Electoral Commission, 63 Phil. 139, 157 (1936) [Per J. Laurel, En Banc].
[113] Atitiw et al. v. Zamora, et al., 508 Phil. 321, 341 (2005) [Per J. Tinga, En Banc].
[114] 32 Phil. 36 (1915) [Per J. Trent, En Banc].
[115] Id. at 49.
[116] 504 Phil. 543 (2005) [Per J. Tinga, Second Division].
[117] Id. at 558.
[118] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 546 Phil. 485, 493 (2007) [Per J. Corona, First Division].
[119] Rollo (G.R. No. 187836), p. 2053.
[120] Batas Pambansa Blg. 129 (1981), sec. 9.
[121] Batas Pambansa Blg. 129 (1981), sec. 21.
[122] An Act Reorganizing the Judiciary, Appropriating Funds Therefor, and for Other Purposes.
[123] Emmanuel A. De Castro v. Emerson S. Carlos, G.R. No. 194994, April 16, 2013, 696 SCRA 400, 407 [Per C.J. Sereno, En Banc].
[124] 560 Phil. 499 (2007) [Per J. Tiñga, Second Division].
[125] Id. at 505–506 and 509.
[126] Ernesto Dy v. Hon. Gina M. Bibat-Palamos, G.R. No. 196200, September 11, 2013, 705 SCRA 613, 622 [Per J. Mendoza, Third Division], citing Republic of the Philippines v. Caguioa, G.R. No. 174385, February 20, 2013, 691 SCRA 306 [Per J. Brion, Second Division].
[127] Rollo (G.R. No. 187836), pp. 1761–1762.
[128] G.R. No. 101083, July 30, 1993, 224 SCRA 792 [Per J. Davide, Jr., En Banc].
[129] J. Leonen, concurring opinion in Garcia v. Drilon, G.R. No. 179267, June 25, 2013, 699 SCRA 352, 491 [Per J. Perlas-Bernabe, En Banc], citing David v. Macapagal-Arroyo, 522 Phil. 705, 755 (2006) [Per J. Sandoval-Gutierrez, En Banc].
[130] J. Leonen, concurring opinion in Garcia v. Drilon, G.R. No. 179267, June 25, 2013, 699 SCRA 352, 491 [Per J. Perlas-Bernabe, En Banc], citing Galicto v. Aquino III, G.R. No. 193978, February 28, 2012, 667 SCRA 150, 170 [Per J. Brion, En Banc].
[131] J. Puno, dissenting opinion in Kilosbayan v. Guingona, G.R. No. 113375, May 5, 1994, 232 SCRA 110 [Per J. Davide, Jr., En Banc].
[132] Id. at 166, 169, and 170–171.
[133] 465 Phil. 385 (2004) [Per J. Carpio, En Banc].
[134] Id. at 402.
[135] Velarde v. Social Justice Society, G.R. No. 159357, April 28, 2004, 428 SCRA 283 [Per J. Panganiban, En Banc].
[136] Id. at 296–297.
[137] Rollo (G.R. No. 187836), p. 1764.
[138] 460 Phil. 830 (2003) [Per J. Carpio Morales, En Banc].
[139] Id. at 899.
[140] Rollo (G.R. No. 187836), p. 1764.
[141] Id. at 1764.
[142] J. Leonen, concurring opinion in Garcia v. Drilon, G.R. No. 179267, June 25, 2013, 699 SCRA 352, 493 [Per J. Perlas-Bernabe, En Banc].
[143] Rollo (G.R. No. 187836), pp. 2065–2066.
[144] De los Santos v. Vda. de Mangubat, 561 Phil. 512 (2007) [Per J. Austria-Martinez, Third Division].
[145] Rules of Procedure for Environmental Cases (2010).
[146] A.M. No. 09-6-8-SC, Rule 7, sec. 2.
[147] A.M. No. 09-6-8-SC, Rule 7, sec. 2(f).
[148] Rollo (G.R. No. 187836), p. 1775.
[149] Rep. Act No. 8749 (1999), otherwise known as An Act Providing for a Comprehensive Air Pollution Control Policy and for Other Purposes.
[150] An Act to Control Toxic Substances and Hazardous and Nuclear Wastes, Providing Penalties for Violations Thereof, and for Other Purposes (1990).
[151] Rollo (G.R. No. 187836), p. 2142.
[152] Id. at 2143.
[153] Id.
[154] Id. at 2815.
[155] Id. at 2814.
[156] Id. at 2816.
[157] Id.
[158] Id. at 2760.
[159] Id. at 2766–2767.
[160] Id. at 2760.
[161] Id. at 2761.
[162] Id. at 2781–2783.
[163] Id. at 2782.
[164] 495 Phil. 289 (2005) [Per J. Tinga, En Banc]. This court held that:
On the second point, it suffices to say that the Code being a later expression of the legislative will must necessarily prevail and override the earlier law, the Revised Charter of Manila. Legis posteriores priores contrarias abrogant, or later statute repeals prior ones which are repugnant thereto. As between two laws on the same subject matter, which are irreconcilably inconsistent, that which is passed later prevails, since it is the latest expression of legislative will.
. . . .
In addition, Section 534(f) of the Code states that “All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly.” (pp. 333–334)
[165] 522 Phil. 705 (2006) [Per J. Sandoval-Gutierrez, En Banc].
[166] Id. at 753.
[167] Id. at 754.
[168] 589 Phil. 387 (2008) [Per J. Carpio-Morales, En Banc].
[169] Id. at 490.
[170] Id. at 490.
[171] J. Leonen, concurring opinion in Araullo v. Aquino G.R. No. 209287, July 1, 2014 < http://sc.judiciary. gov.ph/ pdf/web/viewer.html?file=/jurisprudence/2014/july2014/209287.pdf> [Per J. Bersamin, En Banc].
[172] J. Leonen, dissenting and concurring opinion in Disini, Jr. v. Secretary of Justice, G.R. No. 203335, February 18, 2014,[Per J. Abad, En Banc].
[173] J. Leonen, dissenting opinion in Imbong v. Ochoa G.R. No. 204819, April 8, 2014,[Per J. Mendoza, En Banc].
[174] Rollo (G.R. No. 187836), p. 2466.
[175] Id. at 2467.
[176] R. B. Deloso, The Precautionary Principle: Relevance in International Law and Climate Change, 80 PHIL. L. J. 644 (2006).
[177] Rollo (G.R. No. 187836), pp. 331–334.
[178] As per the decision in Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 546 Phil. 485, 490 and 494 (2007) [Per J. Corona, First Division].
[179] Rollo (G.R. No. 187836), p. 2474.
[180] Id. at 2475.
[181] Id. at 2315–2317.
[182] Id. at 2316.
[183] Id. at 2039.
[184] Id. at 2517.
[185] Id. at 2760.
[186] Id. at 2766–2767.
[187] Philippine Information Agency, April 3, 2014(visited November 11, 2014); A. R. Remo and E. Sauler, “Mayor Estrada to ‘Big 3’ oil firms: Submit relocation plans,” Philippine Daily Inquirer, April 3, 2014, (visited November 11, 2014); B. Cupin, “Erap to oil firms: Shut down Pandacan depot by 2016,” Rappler, April 3, 2014 (last updated April 4, 2014) (visited November 11, 2014).
The creation of a medium industrial zone (1-2) and heavy industrial zone (1-3) effectively lifted the prohibition against owners and operators of businesses, including herein intervenors Chevron Philippines, Inc. (Chevron), Pilipinas Shell Petroleum Corporation (Shell), and Petron Corporation (Petron), collectively referred to as the oil companies, from operating in the designated commercial zone – an industrial zone prior to the enactment of Ordinance No. 8027[4] entitled “AN ORDINANCE RECLASSIFYING THE LAND USE OF THAT PORTION OF LAND BOUNDED BY THE PASIG RIVER IN THE NORTH, PNR RAILROAD TRACK IN THE EAST, BEATA ST. IN THE SOUTH, PALUMPONG ST. IN THE SOUTHWEST AND ESTERO DE PANDACAN IN THE WEST, PNR RAILROAD IN THE NORTHWEST AREA, ESTERO DE PANDACAN IN THE NORTHEAST, PASIG RIVER IN THE SOUTHEAST AND DR. M. L. CARREON IN THE SOUTHWEST, THE AREA OF PUNTA, STA. ANA BOUNDED BY THE PASIG RIVER, MARCELINO OBRERO ST., MAYO 28 ST. AND THE F. MANALO STREET FROM INDUSTRIAL II TO COMMERCIAL I,” and Ordinance No. 8119[5] entitled “AN ORDINANCE ADOPTING THE MANILA COMPREHENSIVE LAND USE PLAN AND ZONING REGULATIONS OF 2006 AND PROVIDING FOR THE ADMINISTRATION, ENFORCEMENT AND AMENDMENT THERETO.”
Petitioners allege the parties’ respective capacity to sue and be sued, viz:
* The allegation is inaccurate. SJS Officer Alcantara is actually one of the counsels for petitioner SJS in G.R. No. 156052. The petitioners in that case are the SJS itself, Cabigao and Bonifacio S. Tumbokon (Tumbokon).
Petitioners Residence in Manila Suing capacity aside from being residents of Manila/other personal circumstances G.R. No. 187836 SJS Officer Samson S. Alcantara (Alcantara) Not mentioned in the petition; holding office in Ermita, Manila Manila taxpayer;
One of the petitioners in SJS v. Atienza (G.R. No. 156052);*
Pesident of ABAKADA GURO PARTY LIST with members who are residents of the City of ManilaSJS Officer Vladimir Alarique T. Cabigao (Cabigao) Pandacan One of the petitioners in SJS v. Atienza (G.R. No. 156052)
G.R. No. 187916
Former Mayor Jose L. Atienza, Jr. (Mayor Atienza) San Andres Former Mayor of Manila;
Secretary of Department of Environment and Natural Resources (DENR)Bienvinido M. Abante Sta. Ana Citizen and taxpayer;
member of the House of RepresentativesMa. Lourdes M. Isip-Garcia San Miguel Incumbent City Councilor of the City of Manila Rafael P. Borromeo Paco Incumbent City Councilor of the City of Manila Jocelyn Dawis-Asuncion Sta. Mesa Incumbent City Councilor of the City of Manila Minors Marian Regina B. Taran, Macalia Ricci B. Taran, Richard Kenneth B. Taran, represented and joined by their parents Richard and Marites Taran Paco Citizens, real estate owners and taxpayers Minors Czarina Alysandra C. Ramos, Cezarah Adrianna C. Ramos, and Cristen Aidan C. Ramos represented and joined by their mother Donna c. Ramos Tondo Citizens, real estate owners and taxpayers Minors Jasmin Syllita T. Vila and Antonio T. Cruz IV, represented and joined by their mother Maureen C. Tolentino Sta. Ana Citizens, real estate owners and taxpayers
Respondents Sued in their capacity as G.R. Nos. 187836 and 187916 Former Mayor Alfredo S. Lim (Mayor Lim) Incumbent Mayor of Manila at the time of the filing of the present petitions
The following intervenors, all of which are corporations organized under Philippine laws, intervened:[7]
Respondents Sued in their capacity as G.R. No. 187916 Vice-Mayor Francisco Domagoso (Vice-Mayor Domagoso) Vice-Mayor and Presiding Officer of the City Council of Manila Arlene Woo Koa Principal author of City Ordinance No. 8187 Moises T. Lim, Jesus Fajardo, Louisito N. Chua, Victoriano A. Melendez, John Marvin Nieto, Rolando M. Valeriano, Raymondo R. Yupangco, Edward VP Maceda, Roderick D. Valbuena, Josefina M. Siscar, Phillip H. Lacuna, Luciano M. Veloso, Carlo V. Lopez, Ernesto F. Rivera,[6] Danilo Victor H. Lacuna, Jr., Ernesto G. Isip, Honey H. Lacuna-Pangan, Ernesto M. Dionisio, Jr., Erick Ian O. Nieva Personal and official capacities as councilors who voted and approved City Ordinance No. 8187
They claim that their rights with respect to the oil depots in Pandacan would be directly affected by the outcome of these cases.
Intervenors Nature of Business Chevron Philippines, Inc. (CHEVRON) importing, distributing and marketing of petroleum products in the Philippines since 1922 Pilipinas Shell Petroleum Corporation (SHELL) manufacturing, refining, importing, distributing and marketing of petroleum products in the Philippines Petron Corporation (PETRON) manufacturing, refining, importing, distributing and marketing of petroleum products in the Philippines
These petitions are a sequel to the case of Social Justice Society v. Mayor Atienza, Jr.[8] (hereinafter referred to as G.R. No. 156052), where the Court found: (1) that the ordinance subject thereof – Ordinance No. 8027 – was enacted “to safeguard the rights to life, security and safety of the inhabitants of Manila;”[9] (2) that it had passed the tests of a valid ordinance; and (3) that it is not superseded by Ordinance No. 8119.[10] Declaring that it is constitutional and valid,[11] the Court accordingly ordered its immediate enforcement with a specific directive on the relocation and transfer of the Pandacan oil terminals.[12]
Highlighting that the Court has so ruled that the Pandacan oil depots should leave, herein petitioners now seek the nullification of Ordinance No. 8187, which contains provisions contrary to those embodied in Ordinance No. 8027. Allegations of violation of the right to health and the right to a healthful and balanced environment are also included.
For a better perspective of the facts of these cases, we again trace the history of the Pandacan oil terminals, as well as the intervening events prior to the reclassification of the land use from Industrial II to Commercial I under Ordinance No. 8027 until the creation of Medium Industrial Zone and Heavy Industrial Zone pursuant to Ordinance No. 8187.
History of the Pandacan
Oil Terminals
We quote the following from the Resolution of the Court in G.R. No. 156052:
Pandacan (one of the districts of the City of Manila) is situated along the banks of the Pasig [R]iver. At the turn of the twentieth century, Pandacan was unofficially designated as the industrial center of Manila. The area, then largely uninhabited, was ideal for various emerging industries as the nearby river facilitated the transportation of goods and products. In the 1920s, it was classified as an industrial zone. Among its early industrial settlers were the oil companies. x x xMemorandum of Agreement (MOA)
On December 8, 1941, the Second World War reached the shores of the Philippine Islands. x x x [I]n their zealous attempt to fend off the Japanese Imperial Army, the United States Army took control of the Pandacan Terminals and hastily made plans to destroy the storage facilities to deprive the advancing Japanese Army of a valuable logistics weapon. The U.S. Army burned unused petroleum, causing a frightening conflagration. Historian Nick Joaquin recounted the events as follows:
After the USAFFE evacuated the City late in December 1941, all army fuel storage dumps were set on fire. The flames spread, enveloping the City in smoke, setting even the rivers ablaze, endangering bridges and all riverside buildings. … For one week longer, the “open city” blazed—a cloud of smoke by day, a pillar of fire by night.The fire consequently destroyed the Pandacan Terminals and rendered its network of depots and service stations inoperative.
After the war, the oil depots were reconstructed. Pandacan changed as Manila rebuilt itself. The three major oil companies resumed the operation of their depots. But the district was no longer a sparsely populated industrial zone; it had evolved into a bustling, hodgepodge community. Today, Pandacan has become a densely populated area inhabited by about 84,000 people, majority of whom are urban poor who call it home. Aside from numerous industrial installations, there are also small businesses, churches, restaurants, schools, daycare centers and residences situated there. Malacañang Palace, the official residence of the President of the Philippines and the seat of governmental power, is just two kilometers away. There is a private school near the Petron depot. Along the walls of the Shell facility are shanties of informal settlers. More than 15,000 students are enrolled in elementary and high schools situated near these facilities. A university with a student population of about 25,000 is located directly across the depot on the banks of the Pasig [R]iver.
The 36-hectare Pandacan Terminals house the oil companies’ distribution terminals and depot facilities. The refineries of Chevron and Shell in Tabangao and Bauan, both in Batangas, respectively, are connected to the Pandacan Terminals through a 114-kilometer underground pipeline system. Petron’s refinery in Limay, Bataan, on the other hand, also services the depot. The terminals store fuel and other petroleum products and supply 95% of the fuel requirements of Metro Manila, 50% of Luzon’s consumption and 35% nationwide. Fuel can also be transported through barges along the Pasig [R]iver or tank trucks via the South Luzon Expressway.[13] (Citations omitted)
dated 12 October 2001 between the oil companies
and the Department of Energy (DOE)
On 12 October 2001, the oil companies and the DOE entered into a MOA[14] “in light of recent international developments involving acts of terrorism on civilian and government landmarks,”[15] “potential new security risks relating to the Pandacan oil terminals and the impact on the surrounding community which may be affected,”[16] and “to address the perceived risks posed by the proximity of communities, businesses and offices to the Pandacan oil terminals, consistent with the principle of sustainable development.”[17] The stakeholders acknowledged that “there is a need for a comprehensive study to address the economic, social, environmental and security concerns with the end in view of formulating a Master Plan to address and minimize the potential risks and hazards posed by the proximity of communities, businesses and offices to the Pandacan oil terminals without adversely affecting the security and reliability of supply and distribution of petroleum products to Metro Manila and the rest of Luzon, and the interests of consumers and users of such petroleum products in those areas.”[18]
The enactment of Ordinance No. 8027
against the continued stay of the oil depots
The MOA, however, was short-lived.
On 20 November 2001, during the incumbency of former Mayor Jose L. Atienza, Jr. (Mayor Atienza) – now one of the petitioners in G.R. No. 187916 – the Sangguniang Panlungsod enacted Ordinance No. 8027[19] reclassifying the use of the land in Pandacan, Sta. Ana, and its adjoining areas from Industrial II to Commercial I.
The owners and operators of the businesses thus affected by the reclassification were given six months from the date of effectivity of the Ordinance within which to stop the operation of their businesses.
Nevertheless, the oil companies were granted an extension of until 30 April 2003 within which to comply with the Ordinance pursuant to the following:
(1) Memorandum of Understanding (MOU)[20] dated 26 June 2002 between the City of Manila and the Department of Energy (DOE), on the one hand, and the oil companies, on the other, where the parties agreed that “the scaling down of the Pandacan Terminals [was] the most viable and practicable option”[21] and committed to adopt specific measures[22] consistent with the said objective;
(2) Resolution No. 97 dated 25 July 2002[23] of the Sangguniang Panlungsod, which ratified the 26 June 2002 MOU but limited the extension of the period within which to comply to six months from 25 July 2002; and
(3) Resolution No. 13 dated 30 January 2003[24] of the Sanguniang Panlungsod, which extended the validity of Resolution No. 97 to 30 April 2003, authorized then Mayor Atienza to issue special business permits to the oil companies, and called for a reassessment of the ordinance.
Social Justice Society v. Atienza (G.R. No. 156052):
The filing of an action for mandamus
before the Supreme Court
to enforce Ordinance No. 8027
In the interim, an original action for mandamus entitled Social Justice Society v. Atienza, Jr. docketed as G.R. No. 156052[25] was filed on 4 December 2002 by Tumbokon and herein petitioners SJS and Cabigao against then Mayor Atienza. The petitioners sought to compel former Mayor Atienza to enforce Ordinance No. 8027 and cause the immediate removal of the terminals of the oil companies.[26]
Issuance by the Regional Trial Court (RTC)
of writs of preliminary prohibitory injunction
and preliminary mandatory injunction,
and status quo order in favor of the oil companies
Unknown to the Court, during the pendency of G.R. No. 156052, and before the expiration of the validity of Resolution No. 13, the oil companies filed the following actions before the Regional Trial Court of Manila: (1) an action for the annulment of Ordinance No. 8027 with application for writs of preliminary prohibitory injunction and preliminary mandatory injunction – by Chevron; (2) a petition for prohibition and mandamus also for the annulment of the Ordinance with application for writs of preliminary prohibitory injunction and preliminary mandatory injunction – by Shell; and (3) a petition assailing the validity of the Ordinance with prayer for the issuance of a writ of preliminary injunction and/or temporary restraining order (TRO) – by Petron.[27]
Writs of preliminary prohibitory injunction and preliminary mandatory injunction were issued in favor of Chevron and Shell on 19 May 2003. Petron, on the other hand, obtained a status quo order on 4 August 2004.[28]
The Enactment of Ordinance No. 8119
defining the Manila land use plan
and zoning regulations
On 16 June 2006, then Mayor Atienza approved Ordinance No. 8119 entitled “An Ordinance Adopting the Manila Comprehensive Land Use Plan and Zoning Regulations of 2006 and Providing for the Administration, Enforcement and Amendment thereto.”[29]
Pertinent provisions relative to these cases are the following:
(a) Article IV, Sec. 7[30] enumerating the existing zones or districts in the City of Manila;
(b) Article V, Sec. 23[31] designating the Pandacan oil depot area as a “Planned Unit Development/Overlay Zone” (O-PUD); and
(c) the repealing clause, which reads:
SEC. 84. Repealing Clause. – All ordinances, rules, regulations in conflict with the provisions of this Ordinance are hereby repealed; PROVIDED, That the rights that are vested upon the effectivity of this Ordinance shall not be impaired.[32]7 March 2007 Decision in G.R. No. 156052;
The mayor has the mandatory legal duty
to enforce Ordinance No. 8027 and order
the removal of the Pandacan terminals
On 7 March 2007, the Court granted the petition for mandamus, and directed then respondent Mayor Atienza to immediately enforce Ordinance No. 8027.[33]
Confined to the resolution of the following issues raised by the petitioners, to wit:
1. whether respondent [Mayor Atienza] has the mandatory legal duty to enforce Ordinance No. 8027 and order the removal of the Pandacan Terminals, andthe Court declared:
2. whether the June 26, 2002 MOU and the resolutions ratifying it can amend or repeal Ordinance No. 8027.[34]
x x x [T]he Local Government Code imposes upon respondent the duty, as city mayor, to “enforce all laws and ordinances relative to the governance of the city.” One of these is Ordinance No. 8027. As the chief executive of the city, he has the duty to enforce Ordinance No. 8027 as long as it has not been repealed by the Sanggunian or annulled by the courts. He has no other choice. It is his ministerial duty to do so. x x x13 February 2008 Resolution in G.R. No. 156052;
x x x x
The question now is whether the MOU entered into by respondent with the oil companies and the subsequent resolutions passed by the Sanggunian have made the respondent’s duty to enforce Ordinance No. 8027 doubtful, unclear or uncertain. x x x
We need not resolve this issue. Assuming that the terms of the MOU were inconsistent with Ordinance No. 8027, the resolutions which ratified it and made it binding on the City of Manila expressly gave it full force and effect only until April 30, 2003. Thus, at present, there is nothing that legally hinders respondent from enforcing Ordinance No. 8027.
Ordinance No. 8027 was enacted right after the Philippines, along with the rest of the world, witnessed the horror of the September 11, 2001 attack on the Twin Towers of the World Trade Center in New York City. The objective of the ordinance is to protect the residents of Manila from the catastrophic devastation that will surely occur in case of a terrorist attack on the Pandacan Terminals. No reason exists why such a protective measure should be delayed.[35] (Emphasis supplied; citations omitted)
Ordinance No. 8027 is constitutional
The oil companies and the Republic of the Philippines, represented by the DOE, filed their motions for leave to intervene and for reconsideration of the 7 March 2007 Decision. During the oral arguments, the parties submitted to the power of the Court to rule on the constitutionality and validity of the assailed Ordinance despite the pendency of the cases in the RTC.[36]
On 13 February 2008, the Court granted the motions for leave to intervene of the oil companies and the Republic of the Philippines but denied their respective motions for reconsideration. The dispositive portion of the Resolution reads:
WHEREFORE, x x x13 February 2008 Resolution in G.R. No. 156052;
We reiterate our order to respondent Mayor of the City of Manila to enforce Ordinance No. 8027. In coordination with the appropriate agencies and other parties involved, respondent Mayor is hereby ordered to oversee the relocation and transfer of the Pandacan Terminals out of its present site.[37]
Ordinance No. 8027 was not impliedly repealed
by Ordinance No. 8119
The Court also ruled that Ordinance No. 8027 was not impliedly repealed by Ordinance No. 8119. On this score, the Court ratiocinated:
For the first kind of implied repeal, there must be an irreconcilable conflict between the two ordinances. There is no conflict between the two ordinances. Ordinance No. 8027 reclassified the Pandacan area from Industrial II to Commercial I. Ordinance No. 8119, Section 23, designated it as a “Planned Unit Development/Overlay Zone (O-PUD).” In its Annex “C” which defined the zone boundaries, the Pandacan area was shown to be within the “High Density Residential/Mixed Use Zone (R-3/MXD).” x x x [B]oth ordinances actually have a common objective, i.e., to shift the zoning classification from industrial to commercial (Ordinance No. 8027) or mixed residential commercial (Ordinance No. 8119)Filing of a draft Resolution amending
x x x x
Ordinance No. 8027 is a special law since it deals specifically with a certain area described therein (the Pandacan oil depot area) whereas Ordinance No. 8119 can be considered a general law as it covers the entire city of Manila.
x x x x
x x x The repealing clause of Ordinance No. 8119 cannot be taken to indicate the legislative intent to repeal all prior inconsistent laws on the subject matter, including Ordinance No. 8027, a special enactment, since the aforequoted minutes (an official record of the discussions in the Sanggunian) actually indicated the clear intent to preserve the provisions of Ordinance No. 8027.[38]
Ordinance No. 8027 effectively allowing
the oil depots to stay in the Pandacan area;
Manifestation and Motion to forestall
the passing of the new Ordinance
filed in G.R. No. 156052
On 5 March 2009, respondent then Councilor Arlene W. Koa, filed with the Sangguniang Panlungsod a draft resolution entitled “An Ordinance Amending Ordinance No. 8119 Otherwise Known as ‘The Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006’ by Creating a Medium Industrial Zone (1-2) and Heavy Industrial Zone (1-3) and Providing for its Enforcement.”[39] Initially numbered as Draft Ordinance No. 7177, this was later renumbered as Ordinance No. 8187, the assailed Ordinance in these instant petitions.
Considering that the provisions thereof run contrary to Ordinance No. 8027, the petitioners in G.R. No. 156052 filed a “Manifestation and Motion to: a) Stop the City Council of Manila from further hearing the amending ordinance to Ordinance No. 8027; [and] b) Transfer the monitoring of the enforcement of the Resolution of the Honorable Court on this case dated 13 February 2008 from Branch 39, Manila Regional Trial Court to the Supreme Court.”[40]
28 April 2009 Resolution in G.R. No. 156052;
Second Motion for Reconsideration
denied with finality; succeeding motions
likewise denied or otherwise noted
without action
On 28 April 2009, pending the resolution of the Manifestation and Motion, the Court denied with finality the second motion for reconsideration dated 27 February 2008 of the oil companies.[41] It further ruled that no further pleadings shall be entertained in the case.[42]
Succeeding motions were thus denied and/or noted without action. And, after the “Very Urgent Motion to Stop the Mayor of the City of Manila from Signing Draft Ordinance No. 7177 and to Cite Him for Contempt if He Would Do So” filed on 19 May 2009 was denied on 2 June 2009 for being moot,[43] all pleadings pertaining to the earlier motion against the drafting of an ordinance to amend Ordinance No. 8027 were noted without action.[44]
The Enactment of Ordinance No. 8187
allowing the continued stay of the oil depots
On 14 May 2009, during the incumbency of former Mayor Alfredo S. Lim (Mayor Lim), who succeeded Mayor Atienza, the Sangguniang Panlungsod enacted Ordinance No. 8187.[45]
The new Ordinance repealed, amended, rescinded or otherwise modified Ordinance No. 8027, Section 23 of Ordinance No. 8119, and all other Ordinances or provisions inconsistent therewith[46] thereby allowing, once again, the operation of “Pollutive/Non-Hazardous and Pollutive/Hazardous manufacturing and processing establishments” and “Highly Pollutive/Non-Hazardous[,] Pollutive/Hazardous[,] Highly Pollutive/Extremely Hazardous[,] Non-Pollutive/Extremely Hazardous; and Pollutive/Extremely Hazardous; and Pollutive/Extremely Hazardous manufacturing and processing establishments” within the newly created Medium Industrial Zone (1-2) and Heavy Industrial Zone (1-3) in the Pandacan area.
Thus, where the Industrial Zone under Ordinance No. 8119 was limited to Light Industrial Zone (I-1), Ordinance No. 8187 appended to the list a Medium Industrial Zone (I-2) and a Heavy Industrial Zone (I-3), where petroleum refineries and oil depots are now among those expressly allowed.
Hence these petitions.
G.R. No. 187836
To support their petition for prohibition against the enforcement of Ordinance No. 8187, the petitioner Social Justice Society (SJS) officers allege that:
1. The enactment of the assailed Ordinance is not a valid exercise of police power because the measures provided therein do not promote the general welfare of the people within the contemplation of the following provisions of law:
2. The conditions at the time the Court declared Ordinance No. 8027 constitutional in G.R. No. 156052 exist to this date;
3. Despite the finality of the Decision in G.R. No. 156052, and notwithstanding that the conditions and circumstances warranting the validity of the Ordinance remain the same, the Manila City Council passed a contrary Ordinance, thereby refusing to recognize that “judicial decisions applying or interpreting the laws or the Constitution form part of the legal system of the Philippines;”[49] and
4. Ordinance No. 8187 is violative of Sections 15 and 16, Article II of the Constitution of the Philippines on the duty of the State “to protect and promote the right to health of the people”[50] and “protect and advance the right of the people to a balanced and healthful ecology.”[51]
Petitioners pray that Ordinance No. 8187 of the City of Manila be declared null and void, and that respondent, and all persons acting under him, be prohibited from enforcing the same.
G.R. No. 187916
The petition for Prohibition, Mandamus and Certiorari with Prayer for Temporary Restraining Order and/or Injunction against the enforcement of Ordinance No. 8187 of former Secretary of Department of Environment and Natural Resources and then Mayor Atienza, together with other residents and taxpayers of the City of Manila, also alleges violation of the right to health of the people and the right to a healthful and balanced environment under Sections 15 and 16 of the Constitution.
Petitioners likewise claim that the Ordinance is in violation of the following health and environment-related municipal laws, and international conventions and treaties to which the Philippines is a state party:
1. Municipal Laws –
(a) Sections 4,[52] 12,[53] 19[54] and 30[55] of Republic Act No. 8749 otherwise known as the Philippine Clean Air Act;
(b) Environment Code (Presidential Decree No. 1152);
(c) Toxic and Hazardous Wastes Law (Republic Act No. 6969); and
(d) Civil Code provisions on nuisance and human relations;
(b) Environment Code (Presidential Decree No. 1152);
(c) Toxic and Hazardous Wastes Law (Republic Act No. 6969); and
(d) Civil Code provisions on nuisance and human relations;
2. International Conventions and Treaties to which the Philippines is a state party –
a. Section 1 of the Universal Declaration of Human Rights, which states that “[e]veryone has the right to life, liberty and security of person;”
b. Articles 6,[56] 24[57] and 27[58] of the Convention on the Rights of the Child, summarized by the petitioners in the following manner:
b. Articles 6,[56] 24[57] and 27[58] of the Convention on the Rights of the Child, summarized by the petitioners in the following manner:
1. the human right to safe and healthy environment[;]Petitioners likewise posit that the title of Ordinance No. 8187 purports to amend or repeal Ordinance No. 8119 when it actually intends to repeal Ordinance No. 8027. According to them, Ordinance No. 8027 was never mentioned in the title and the body of the new ordinance in violation of Section 26, Article VI of the 1987 Constitution, which provides that every bill passed by Congress shall embrace only one subject which shall be expressed in the title thereof.
2. human right to the highest attainable standard of health[;]
3. the human right to ecologically sustainable development[;]
4. the human right to an adequate standard of living, including access to safe food and water[;]
5. the human right of the child to live in an environment appropriate for physical and mental development[; and]
6. the human right to full and equal participation for all persons in environmental decision-making and development planning, and in shaping decisions and policies affecting one’s community, at the local, national and international levels.[59]
Also pointed out by the petitioners is a specific procedure outlined in Ordinance No. 8119 that should be observed when amending the zoning ordinance. This is provided for under Section 81 thereof, which reads:
SEC. 81. Amendments to the Zoning Ordinance. The proposed amendments to the Zoning Ordinance as reviewed and evaluated by the City Planning and Development Office (CPDO) shall be submitted to the City Council for approval of the majority of the Sangguniang Panlungsod members. The amendments shall be acceptable and eventually approved: PROVIDED, That there is sufficient evidence and justification for such proposal; PROVIDED FURTHER, That such proposal is consistent with the development goals, planning objectives, and strategies of the Manila Comprehensive Land Use Plan. Said amendments shall take effect immediately upon approval or after thirty (30) days from application.Petitioners thus pray that:
1. upon filing of [the] petition, [the] case be referred to the Court [E]n Banc, and setting (sic) the case for oral argument;
2. upon the filing of [the] petition, a temporary restraining order be issued enjoining the respondents from publishing and posting Manila City Ordinance No. 8187 and/or posting of Manila City Ordinance No. 8187; and/or taking any steps to implementing (sic) and/or enforce the same and after due hearing, the temporary restraining order be converted to a permanent injunction;
3. x x x Manila City Ordinance 8187 [be declared] as null and void for being repugnant to the Constitution and existing municipal laws and international covenants;
4. x x x the respondents [be ordered] to refrain from enforcing and/or implementing Manila City Ordinance No. 8187;
5. x x x respondent City Mayor Alfredo S. Lim [be enjoined] from issuing any permits (business or otherwise) to all industries whose allowable uses are anchored under the provisions of Manila Ordinance No. 8187; and
6. x x x respondent Mayor of Manila Alfredo S. Lim [be ordered] to comply with the Order of the Honorable Court in G.R. 156052 dated February 13, 2008.[60]
on the Consolidated Petitions
Respondent former Mayor Lim
In his Memorandum,[61] former Mayor Lim, through the City Legal Officer, attacks the petitioners’ lack of legal standing to sue. He likewise points out that the petitioners failed to observe the principle of hierarchy of courts.
Maintaining that Ordinance No. 8187 is valid and constitutional, he expounds on the following arguments:
On the procedural issues, he contends that: (1) it is the function of the Sangguniang Panlungsod to enact zoning ordinances, for which reason, it may proceed to amend or repeal Ordinance No. 8119 without prior referral to the Manila Zoning Board of Adjustment and Appeals (MZBAA) as prescribed under Section 80 (Procedure for Re-Zoning) and the City Planning and Development Office (CPDO) pursuant to Section 81 (Amendments to the Zoning Ordinance) of Ordinance No. 8119, especially when the action actually originated from the Sangguniang Panlungsoditself; (2) the Sangguniang Panlungsod may, in the later ordinance, expressly repeal all or part of the zoning ordinance sought to be modified; and (3) the provision repealing Section 23 of Ordinance No. 8119 is not violative of Section 26, Article VI of the 1987 Constitution, which requires that every bill must embrace only one subject and that such shall be expressed in the title.
On the substantive issues, he posits that the petitions are based on unfounded fears; that the assailed ordinance is a valid exercise of police power; that it is consistent with the general welfare clause and public policy, and is not unreasonable; that it does not run contrary to the Constitution, municipal laws, and international conventions; and that the petitioners failed to overcome the presumption of validity of the assailed ordinance.
Respondents Vice-Mayor Domagoso
and the City Councilors who voted
in favor of the assailed ordinance
On 14 September 2012, after the Court gave the respondents several chances to submit their Memorandum,[62]they, through the Secretary of the Sangguniang Panlungsod, prayed that the Court dispense with the filing thereof.
In their Comment,[63] however, respondents offered a position essentially similar to those proffered by former Mayor Lim.
on the Consolidated Petitions
On the other hand, the oil companies sought the outright dismissal of the petitions based on alleged procedural infirmities, among others, incomplete requisites of judicial review, violation of the principle of hierarchy of courts, improper remedy, submission of a defective verification and certification against forum shopping, and forum shopping.
As to the substantive issues, they maintain, among others, that the assailed ordinance is constitutional and valid; that the Sangguniang Panlalawigan is in the best position to determine the needs of its constituents; that it is a valid exercise of legislative power; that it does not violate health and environment-related provisions of the Constitution, laws, and international conventions and treaties to which the Philippines is a party; that the oil depots are not likely targets of terrorists; that the scaling down of the operations in Pandacan pursuant to the MOU has been followed; and that the people are safe in view of the safety measures installed in the Pandacan terminals.
Incidentally, in its Manifestation dated 30 November 2010,[64] Petron informed the Court that it will “cease [the] operation of its petroleum product storage facilities”[65] in the Pandacan oil terminal not later than January 2016 on account of the following:
2.01 Environmental issues, many of which are unfounded, continually crop up and tarnish the Company’s image.Intervening Events
2.02. The location of its Pandacan terminal is continually threatened, and made uncertain preventing long-term planning, by the changing local government composition. Indeed, the relevant zoning ordinances have been amended three (3) times, and their validity subjected to litigation.[66]
On 28 August 2012, while the Court was awaiting the submission of the Memorandum of respondents Vice-Mayor Domagoso and the councilors who voted in favor of the assailed Ordinance, the Sangguniang Panlungsod, which composition had already substantially changed, enacted Ordinance No. 8283[67] entitled “AN ORDINANCE AMENDING SECTION 2 OF ORDINANCE NO. 8187 BY RECLASSIFYING THE AREA WHERE PETROLEUM REFINERIES AND OIL DEPOTS ARE LOCATED FROM HEAVY INDUSTRIAL (1-3) TO HIGH INTENSITY COMMERCIAL/MIXED USE ZONE (C3/MXD).
The new ordinance essentially amended the assailed ordinance to exclude the area where petroleum refineries and oil depots are located from the Industrial Zone.
Ordinance No. 8283 thus permits the operation of the industries operating within the Industrial Zone. However, the oil companies, whose oil depots are located in the High Intensity Commercial/Mixed Use Zone (C3/MXD), are given until the end of January 2016 within which to relocate their terminals.
Former Mayor Lim, who was then the incumbent mayor, did not support the amendment. Maintaining that the removal of the oil depots was prejudicial to public welfare, and, on account of the pending cases in the Supreme Court, he vetoed Ordinance No. 8283 on 11 September 2012.[68]
On 28 November 2012, former Mayor Lim filed a Manifestation informing this Court that the Sangguniang Panlungsod voted to override the veto, and that he, in turn, returned it again with his veto. He likewise directed the Sangguniang Panlungsod to append his written reasons for his veto of the Ordinance, so that the same will be forwarded to the President for his consideration in the event that his veto is overridden again.[69]
On 11 December 2012, Shell also filed a similar Manifestation.[70]
Meanwhile, three days after former Mayor Lim vetoed the new ordinance, Atty. Luch R. Gempis, Jr. (Atty. Gempis), Secretary of the Sangguniang Panlungsod, writing on behalf of respondents Vice-Mayor Domagoso and the City Councilors of Manila who voted in favor of the assailed Ordinance, finally complied with this Court’s Resolution dated 17 July 2012 reiterating its earlier directives[71] to submit the said respondents’ Memorandum.
In his Compliance/Explanation with Urgent Manifestation[72] dated 13 September 2012, Atty. Gempis explained that it was not his intention to show disrespect to this Court or to delay or prejudice the disposition of the cases.
According to him, he signed the Comment prepared by respondents Vice-Mayor and the City Councilors only to attest that the pleading was personally signed by the respondents. He clarified that he was not designated as the legal counsel of the respondents as, in fact, he was of the impression that, pursuant to Section 481(b)(3) of the Local Government Code,[73] it is the City Legal Officer who is authorized to represent the local government unit or any official thereof in a litigation. It was for the same reason that he thought that the filing of a Memorandum may already be dispensed with when the City Legal Officer filed its own on 8 February 2010. He further explained that the Ordinance subject of these cases was passed during the 7th Council (2007-2010); that the composition of the 8th Council (2010-2013) had already changed after the 2010 elections; and that steps were already taken to amend the ordinance again. Hence, he was in a dilemma as to the position of the Sangguniang Panlungsod at the time he received the Court’s Resolution of 31 May 2011.
Atty. Gempis, thus, prayed that the Court dispense with the filing of the required memorandum in view of the passing of Ordinance No. 8283.
The petitioners’ arguments are primarily anchored on the ruling of the Court in G. R. No. 156052 declaring Ordinance No. 8027 constitutional and valid after finding that the presence of the oil terminals in Pandacan is a threat to the life and security of the people of Manila. From thence, the petitioners enumerated constitutional provisions, municipal laws and international treaties and conventions on health and environment protection allegedly violated by the enactment of the assailed Ordinance to support their position.
The resolution of the present controversy is, thus, confined to the determination of whether or not the enactment of the assailed Ordinance allowing the continued stay of the oil companies in the depots is, indeed, invalid and unconstitutional.
We see no reason why Ordinance No. 8187 should not be stricken down insofar as the presence of the oil depots in Pandacan is concerned.
We first rule on the procedural issues raised by the respondents and the oil companies.
At the outset, let it be emphasized that the Court, in G.R. No. 156052, has already pronounced that the matter of whether or not the oil depots should remain in the Pandacan area is of transcendental importance to the residents of Manila.[74]
We may, thus, brush aside procedural infirmities, if any, as we had in the past, and take cognizance of the cases[75]if only to determine if the acts complained of are no longer within the bounds of the Constitution and the laws in place.[76]
Put otherwise, there can be no valid objection to this Court’s discretion to waive one or some procedural requirements if only to remove any impediment to address and resolve the serious constitutional question[77] raised in these petitions of transcendental importance, the same having far-reaching implications insofar as the safety and general welfare of the residents of Manila, and even its neighboring communities, are concerned.
Proper Remedy
Respondents and intervenors argue that the petitions should be outrightly dismissed for failure on the part of the petitioners to properly apply related provisions of the Constitution, the Rules of Court, and/or the Rules of Procedure for Environmental Cases relative to the appropriate remedy available to them.
To begin with, questioned is the applicability of Rule 65[78] of the Rules of Court to assail the validity and constitutionality of the Ordinance.
… there is no appeal, or any plain,
speedy, and adequate remedy
in the ordinary course of law…
Rule 65 specifically requires that the remedy may be availed of only when “there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.”[79]
Shell argues that the petitioners should have sought recourse before the first and second level courts under the Rules of Procedure for Environmental Cases,[80] which govern “the enforcement or violations of environmental and other related laws, rules and regulations.”[81] Petron additionally submits that the most adequate remedy available to petitioners is to have the assailed ordinance repealed by the Sangguniang Panlungsod. In the alternative, a local referendum may be had. And, assuming that there were laws violated, the petitioners may file an action for each alleged violation of law against the particular individuals that transgressed the law.
It would appear, however, that the remedies identified by the intervenors prove to be inadequate to resolve the present controversies in their entirety owing to the intricacies of the circumstances herein prevailing.
The scope of the Rules of Procedure for Environmental Cases is embodied in Sec. 2, Part I, Rule I thereof. It states that the Rules shall govern the procedure in civil, criminal and special civil actions before the Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts, and the Regional Trial Courts involving enforcement or violations of environmental and other related laws, rules and regulations such as but not limited to the following:
(k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act;Notably, the aforesaid Rules are limited in scope. While, indeed, there are allegations of violations of environmental laws in the petitions, these only serve as collateral attacks that would support the other position of the petitioners – the protection of the right to life, security and safety.
x x x x
(r) R.A. No. 8749, Clean Air Act;
x x x x
(y) Provisions in C.A. No. 141, x x x; and other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources.[82] (Emphasis supplied)
Moreover, it bears emphasis that the promulgation of the said Rules was specifically intended to meet the following objectives:
SEC. 3. Objectives.—The objectives of these Rules are:Surely, the instant petitions are not within the contemplation of these Rules.
Relative to the position of Petron, it failed to consider that these petitions are already a sequel to G.R. No. 156052, and that there are some issues herein raised that the remedies available at the level of the Sangguniang Panlungsodcould not address. Neither could the filing of an individual action for each law violated be harmonized with the essence of a “plain, speedy, and adequate” remedy.
From another perspective, Shell finds fault with the petitioners’ direct recourse to this Court when, pursuant to Section 5, Article VIII of the Constitution, the Supreme Court exercises only appellate jurisdiction over cases involving the constitutionality or validity of an ordinance.[84] Thus:
Section 5. The Supreme Court shall have the following powers:To further support its position, it cites the case of Liga ng mga Barangay National v. City Mayor of Manila,[85] where the petitioners sought the nullification of the mayor’s executive order and the council’s ordinance concerning certain functions of the petitioners that are vested in them by law. There, the Court held:
x x x x
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Emphasis supplied)
Second, although the instant petition is styled as a petition for certiorari, in essence, it seeks the declaration by this Court of the unconstitutionality or illegality of the questioned ordinance and executive order. It, thus, partakes of the nature of a petition for declaratory relief over which this Court has only appellate, not original, jurisdiction.[86] Section 5, Article VIII of the Constitution provides: x x xAssuming that a petition for declaratory relief is the proper remedy, and that the petitions should have been filed with the Regional Trial Court, we have, time and again, resolved to treat such a petition as one for prohibition, provided that the case has far-reaching implications and transcendental issues that need to be resolved,[88] as in these present petitions.
As such, this petition must necessary fail, as this Court does not have original jurisdiction over a petition for declaratory relief even if only questions of law are involved.[87]
On a related issue, we initially found convincing the argument that the petitions should have been filed with the Regional Trial Court, it having concurrent jurisdiction with this Court over a special civil action for prohibition, and original jurisdiction over petitions for declaratory relief.
However, as we have repeatedly said, the petitions at bar are of transcendental importance warranting a relaxation of the doctrine of hierarchy of courts.[89] In the case of Jaworski v. PAGCOR,[90] the Court ratiocinated:
Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the transcendental importance of the issues involved in this case warrants that we set aside the technical defects and take primary jurisdiction over the petition at bar. x x x This is in accordance with the well-entrenched principle that rules of procedure are not inflexible tools designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate, rather than promote substantial justice, must always be eschewed. (Emphasis supplied)…persons aggrieved thereby…
As to who may file a petition for certiorari, prohibition or mandamus, Petron posits that petitioners are not among the “persons aggrieved” contemplated under Sections 1 to 3 of Rule 65 of the Rules of Court.
Chevron argues that petitioners, whether as “citizens,” taxpayers,” or legislators,” lack the legal standing to assail the validity and constitutionality of Ordinance No. 8187. It further claims that petitioners failed to show that they have suffered any injury and/or threatened injury as a result of the act complained of.[91]
Shell also points out that the petitions cannot be considered taxpayers’ suit, for then, there should be a claim that public funds were illegally disbursed and that petitioners have sufficient interest concerning the prevention of illegal expenditure of public money.[92] In G.R. No. 187916, Shell maintains that the petitioners failed to show their personal interest in the case and/or to establish that they may represent the general sentiments of the constituents of the City of Manila so as to be treated as a class suit. Even the minors, it argues, are not numerous and representative enough for the petition to be treated as a class suit. As to the city councilors who joined the petitioners in assailing the validity of Ordinance No. 8187, Shell posits that they cannot invoke the ruling in Prof. David v. Pres. Macapagal-Arroyo,[93] where the Court held that legislators may question the constitutionality of a statute, if and when it infringes upon their prerogatives as legislators, because of the absence of the allegation that the assailed ordinance indeed infringes upon their prerogatives.
Former Mayor Lim submitted a similar position supported by a number of cases on the concept of locus standi,[94]the direct injury test,[95] an outline of the stringent requirements of legal standing when suing as a citizen,[96] as a taxpayer,[97] as a legislator and in cases where class suits are filed in behalf of all citizens.[98]
Their arguments are misplaced.
In G.R. No. 156052, we ruled that the petitioners in that case have a legal right to seek the enforcement of Ordinance No. 8027 because the subject of the petition concerns a public right, and they, as residents of Manila, have a direct interest in the implementation of the ordinances of the city. Thus:
To support the assertion that petitioners have a clear legal right to the enforcement of the ordinance, petitioner SJS states that it is a political party registered with the Commission on Elections and has its offices in Manila. It claims to have many members who are residents of Manila. The other petitioners, Cabigao and Tumbokon, are allegedly residents of Manila.No different are herein petitioners who seek to prohibit the enforcement of the assailed ordinance, and who deal with the same subject matter that concerns a public right. Necessarily, the people who are interested in the nullification of such an ordinance are themselves the real parties in interest, for which reason, they are no longer required to show any specific interest therein. Moreover, it is worth mentioning that SJS, now represented by SJS Officer Alcantara, has been recognized by the Court in G.R. No. 156052 to have legal standing to sue in connection with the same subject matter herein considered. The rest of the petitioners are residents of Manila. Hence, all of them have a direct interest in the prohibition proceedings against the enforcement of the assailed ordinance.
We need not belabor this point. We have ruled in previous cases that when a mandamus proceeding concerns a public right and its object is to compel a public duty, the people who are interested in the execution of the laws are regarded as the real parties in interest and they need not show any specific interest. Besides, as residents of Manila, petitioners have a direct interest in the enforcement of the city’s ordinances.[99] x x x (Citations omitted)
In the case of Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. (IDEALS, INC.) v. Power Sector Assets and Liabilities Management Corporation (PSALM),[100] involving a petition for certiorari and prohibition to permanently enjoin PSALM from selling the Angat Hydro-Electric Power Plant (AHEPP) to Korea Water Resources Corporation (K-Water), the Court ruled:
“Legal standing” or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged, alleging more than a generalized grievance. x x x This Court, however, has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people, as when the issues raised are of paramount importance to the public. Thus, when the proceeding involves the assertion of a public right, the mere fact that the petitioner is a citizen satisfies the requirement of personal interest.In like manner, the preservation of the life, security and safety of the people is indisputably a right of utmost importance to the public. Certainly, the petitioners, as residents of Manila, have the required personal interest to seek relief from this Court to protect such right.
There can be no doubt that the matter of ensuring adequate water supply for domestic use is one of paramount importance to the public. That the continued availability of potable water in Metro Manila might be compromised if PSALM proceeds with the privatization of the hydroelectric power plant in the Angat Dam Complex confers upon petitioners such personal stake in the resolution of legal issues in a petition to stop its implementation.[101] (Emphasis supplied; citations omitted)
… in excess of its or his jurisdiction,
or with grave abuse of discretion
amounting to lack or excess of jurisdiction…
Petron takes issue with the alleged failure of the petitioners to establish the facts with certainty that would show that the acts of the respondents fall within the parameters of the grave abuse of discretion clause settled by jurisprudence, to wit:
x x x “[G]rave abuse of discretion” means such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act all in contemplation of law.[102]It is pointless to discuss the matter at length in these instant cases of transcendental importance in view of the Court’s pronouncement, in Magallona v. Ermita.[103] There it held that the writs of certiorari and prohibition are proper remedies to test the constitutionality of statutes, notwithstanding the following defects:
In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents and resulting prejudice on the part of petitioners.Requisites of judicial review
Respondents’ submission holds true in ordinary civil proceedings. When this Court exercises its constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper remedial vehicles to test the constitutionality of statutes, and indeed, of acts of other branches of government. Issues of constitutional import x x x carry such relevance in the life of this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass upon the issues raised, non-compliance with the letter of procedural rules notwithstanding. The statute sought to be reviewed here is one such law.[104] (Emphasis supplied; citations omitted)
For a valid exercise of the power of judicial review, the following requisites shall concur: (1) the existence of a legal controversy; (2) legal standing to sue of the party raising the constitutional question; (3) a plea that judicial review be exercised at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.[105]
Only the first two requisites are put in issue in these cases.
On the matter of the existence of a legal controversy, we reject the contention that the petitions consist of bare allegations based on speculations, surmises, conjectures and hypothetical grounds.
The Court declared Ordinance No. 8027 valid and constitutional and ordered its implementation. With the passing of the new ordinance containing the contrary provisions, it cannot be any clearer that here lies an actual case or controversy for judicial review. The allegation on this, alone, is sufficient for the purpose.
The second requisite has already been exhaustively discussed.
Proof of identification required in the notarization
of the verification and certification against forum
shopping in G.R. No. 187916
At the bottom of the Verification and Certification against Forum Shopping of the petition in G.R. No. 187916 is the statement of the notary public to the effect that the affiant, in his presence and after presenting “an integrally competent proof of identification with signature and photograph,”[106] signed the document under oath.
Citing Sec. 163 of the Local Government Code,[107] which provides that an individual acknowledging any document before a notary public shall present his Community Tax Certificate (CTC), Chevron posits that the petitioner’s failure to present his CTC rendered the petition fatally defective warranting the outright dismissal of the petition.
We disagree.
The verification and certification against forum shopping are governed specifically by Sections 4 and 5, Rule 7 of the Rules of Court.
Section 4 provides that a pleading, when required to be verified, shall be treated as an unsigned pleading if it lacks a proper verification while Section 5 requires that the certification to be executed by the plaintiff or principal party be under oath.
These sections, in turn, should be read together with Sections 6 and 12, Rule 2 of the 2004 Rules on Notarial Practice.
Section 6[108] of the latter Rules, specifically, likewise provides that any competent evidence of identity specified under Section 12 thereof may now be presented before the notary public, to wit:
SEC. 12. Competent Evidence of Identity. - The phrase “competent evidence of identity” refers to the identification of an individual based on:Forum shopping
Shell contends that the petitioners in G.R. No. 187836 violated the rule against forum shopping allegedly because all the elements thereof are present in relation to G.R. No. 156052, to wit:
1. “identity of parties, or at least such parties who represent the same interests in both actions” –
According to Shell, the interest of petitioner SJS in G.R. No. 156052 and the officers of SJS in G.R. No. 187836 are clearly the same. Moreover, both actions implead the incumbent mayor of the City of Manila as respondent. Both then respondent Mayor Atienza in G.R. No. 156052 and respondent former Mayor Lim in G.R. No. 187836 are sued in their capacity as Manila mayor.
2. “identity of rights asserted and relief prayed for, the relief being founded on the same fact(s)” –
Shell contends that, in both actions, petitioners assert the same rights to health and to a balanced and healthful ecology relative to the fate of the Pandacan terminal, and seek essentially the same reliefs, that is, the removal of the oil depots from the present site.
3. “the identity of the two preceding particulars is such that any judgment rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other” –
Relative to the filing of the Manifestation and Motion to: a) Stop the City Council of Manila from further hearing the amending ordinance to Ordinance No. 8027 x x x (Manifestation and Motion) and Very Urgent Motion to Stop the Mayor of the City of Manila from Signing Draft Ordinance No. 7177 [now Ordinance No. 8187] and to Cite Him for Contempt if He Would Do So (Urgent Motion) both in G.R. No. 156052, Shell points out the possibility that the Court would have rendered conflicting rulings “on cases involving the same facts, parties, issues and reliefs prayed for.”[110]
We are not persuaded.
In Spouses Cruz v. Spouses Caraos,[111] the Court expounded on the nature of forum shopping. Thus:
Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered in one forum, of seeking and possibly getting a favorable opinion in another forum, other than by appeal or special civil action for certiorari. It may also be the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. The established rule is that for forum shopping to exist, both actions must involve the same transactions, same essential facts and circumstances and must raise identical causes of actions, subject matter, and issues. x x x[112] (Citations omitted)It bears to stress that the present petitions were initially filed, not to secure a judgment adverse to the first decision, but, precisely, to enforce the earlier ruling to relocate the oil depots from the Pandacan area.
As to the matter of the denial of the petitioners’ Manifestation and Urgent Motion in G.R. No. 156052, which were both incidental to the enforcement of the decision favorable to them brought about by the intervening events after the judgment had become final and executory, and which involve the same Ordinance assailed in these petitions, we so hold that the filing of the instant petitions is not barred by res judicata.
In the same case of Spouses Cruz v. Spouses Caraos involving the re-filing of a complaint, which had been earlier dismissed without qualification that the dismissal was with prejudice, and which had not been decided on the merits, the Court declared that such re-filing did not amount to forum shopping. It ratiocinated:
It is not controverted that the allegations of the respective complaints in both Civil Case No. 95-1387 and Civil Case No. 96-0225 are similarly worded, and are identical in all relevant details, including typographical errors, except for the additional allegations in support of respondents’ prayer for the issuance of preliminary injunction in Civil Case No. 95-1387. It is similarly not disputed that both actions involve the same transactions; same essential facts and circumstances; and raise identical causes of actions, subject matter, and issues.Here, it should be noted that this Court denied the said Manifestation and Urgent Motion, and refused to act on the succeeding pleadings, for being moot.[114] Clearly, the merits of the motion were not considered by the Court. The following disquisition of the Court in Spouses Cruz v. Spouses Caraos is further enlightening:
x x x x
x x x The dismissal of Civil Case No. 95-1387 was without prejudice. Indeed, the Order dated 20 November 1995, dismissing Civil Case No. 95-1387 was an unqualified dismissal. More significantly, its dismissal was not based on grounds under paragraphs (f), (h), and (i) of Section 1 of Rule 16 of the Rules of Court, which dismissal shall bar the refiling of the same action or claim as crystallized in Section 5 of Rule 16 thereof, thus:
SEC. 5. Effect of dismissal. – Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h), and (i) of section 1 hereof shall bar the refiling of the same action or claim.From the foregoing, it is clear that dismissals under paragraphs (f), (h), and (i) of Section 1 of Rule 16 of the Rules of Court constitute res judicata, to wit:
(f) That the cause of action is barred by a prior judgment or by the statute of limitations;Res judicata or bar by prior judgment is a doctrine which holds that a matter that has been adjudicated by a court of competent jurisdiction must be deemed to have been finally and conclusively settled if it arises in any subsequent litigation between the same parties and for the same cause. Res judicata exists when the following elements are present: (a) the former judgment must be final; (b) the court which rendered judgment had jurisdiction over the parties and the subject matter; (3) it must be a judgment on the merits; and (d) and there must be, between the first and second actions, identity of parties, subject matter, and cause of action.[113] (Emphasis supplied; citations omitted)
x x x x
(h) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds.
The judgment of dismissal in Civil Case No. 95-1387 does not constitute res judicata to sufficiently bar the refiling thereof in Civil Case No. 96-0225. As earlier underscored, the dismissal was one without prejudice. Verily, it was not a judgment on the merits. It bears reiterating that a judgment on the merits is one rendered after a determination of which party is right, as distinguished from a judgment rendered upon some preliminary or formal or merely technical point. The dismissal of the case without prejudice indicates the absence of a decision on the merits and leaves the parties free to litigate the matter in a subsequent action as though the dismissed action had not been commenced.[115](Emphasis supplied; citations omitted)Considering that there is definitely no forum shopping in the instant cases, we need not discuss in detail the elements of forum shopping.
The Local Government Code of 1991 expressly provides that the Sangguniang Panlungsod is vested with the power to “reclassify land within the jurisdiction of the city”[116] subject to the pertinent provisions of the Code. It is also settled that an ordinance may be modified or repealed by another ordinance.[117] These have been properly applied in G.R. No. 156052, where the Court upheld the position of the Sangguniang Panlungsod to reclassify the land subject of the Ordinance,[118] and declared that the mayor has the duty to enforce Ordinance No. 8027, provided that it has not been repealed by the Sangguniang Panlungsod or otherwise annulled by the courts.[119] In the same case, the Court also used the principle that the Sanguniang Panlungsod is in the best position to determine the needs of its constituents[120] – that the removal of the oil depots from the Pandacan area is necessary “to protect the residents of Manila from catastrophic devastation in case of a terrorist attack on the Pandacan Terminals.”[121]
Do all these principles equally apply to the cases at bar involving the same subject matter to justify the contrary provisions of the assailed Ordinance?
We answer in the negative.
We summarize the position of the Sangguniang Panlungsod on the matter subject of these petitions. In 2001, the Sanggunian found the relocation of the Pandacan oil depots necessary. Hence, the enactment of Ordinance No. 8027.
In 2009, when the composition of the Sanggunian had already changed, Ordinance No. 8187 was passed in favor of the retention of the oil depots. In 2012, again when some of the previous members were no longer re-elected, but with the Vice-Mayor still holding the same seat, and pending the resolution of these petitions, Ordinance No. 8283 was enacted to give the oil depots until the end of January 2016 within which to transfer to another site. Former Mayor Lim stood his ground and vetoed the last ordinance.
In its Comment, the 7th Council (2007-2010) alleged that the assailed Ordinance was enacted to alleviate the economic condition of its constituents.[122]
Expressing the same position, former Mayor Lim even went to the extent of detailing the steps[123] he took prior to the signing of the Ordinance, if only to show his honest intention to make the right decision.
The fact remains, however, that notwithstanding that the conditions with respect to the operations of the oil depots existing prior to the enactment of Ordinance No. 8027 do not substantially differ to this day, as would later be discussed, the position of the Sangguniang Panlungsod on the matter has thrice changed, largely depending on the new composition of the council and/or political affiliations. The foregoing, thus, shows that its determination of the “general welfare” of the city does not after all gear towards the protection of the people in its true sense and meaning, but is, one way or another, dependent on the personal preference of the members who sit in the council as to which particular sector among its constituents it wishes to favor.
Now that the City of Manila, through the mayor and the city councilors, has changed its view on the matter, favoring the city’s economic-related benefits, through the continued stay of the oil terminals, over the protection of the very lives and safety of its constituents, it is imperative for this Court to make a final determination on the basis of the facts on the table as to which specific right of the inhabitants of Manila should prevail. For, in this present controversy, history reveals that there is truly no such thing as “the will of Manila” insofar as the general welfare of the people is concerned.
If in sacrilege, in free translation of Angara[124] by Justice Laurel, we say when the judiciary mediates we do not in reality nullify or invalidate an act of the Manila Sangguniang Panlungsod, but only asserts the solemn and sacred obligation assigned to the Court by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them.
The measures taken by the intervenors to lend support to their position that Manila is now safe despite the presence of the oil terminals remain ineffective. These have not completely removed the threat to the lives of the inhabitants of Manila.
In G.R. No. 156052, the validity and constitutionality of Ordinance No. 8027 was declared as a guarantee for the protection of the constitutional right to life of the residents of Manila. There, the Court said that the enactment of the said ordinance was a valid exercise of police power with the concurrence of the two requisites: a lawful subject – “to safeguard the rights to life, security and safety of all the inhabitants of Manila;”[125] and a lawful method – the enactment of Ordinance No. 8027 reclassifying the land use from industrial to commercial, which effectively ends the continued stay of the oil depots in Pandacan.[126]
In the present petitions, the respondents and the oil companies plead that the Pandacan Terminal has never been one of the targets of terrorist attacks;[127] that the petitions were based on unfounded fears and mere conjectures;[128] and that the possibility that it would be picked by the terrorists is nil given the security measures installed thereat.[129]
The intervenors went on to identify the measures taken to ensure the safety of the people even with the presence of the Pandacan Terminals. Thus:
1. Chevron claims that it, together with Shell and Petron, continues to enhance the safety and security features of the terminals. They likewise adopt fire and product spill prevention measures in accordance with the local standards set by the Bureau of Fire Protection, among others, and with the international standards of the American Petroleum Industry (“API”) and the National Fire Prevention and Safety Association (“NFPSA”); that since 1914, the oil depots had not experienced “any incident beyond the ordinary risks and expectations”[130] of the residents of Manila; and that it received a passing grade on the safety measures they installed in the facilities from the representatives of the City of Manila who conducted an ocular inspection on 22 May 2009; and
2. Referring to the old MOU entered into between the City of Manila and the DOE, on the one hand, and the oil companies, on the other, where the parties thereto conceded and acknowledged that the scale-down option for the Pandacan Terminal operations is the best alternative to the relocation of the terminals, Shell enumerates the steps taken to scale down its operations.
As to the number of main fuel tanks, the entire Pandacan Terminal has already decommissioned twenty-eight out of sixty-four tanks. Speaking for Shell alone, its LPG Spheres, which it claims is the only product that may cause explosion, was part of those decommissioned, thereby allegedly removing the danger of explosion. Safety buffer zones and linear/green parks were likewise created to separate the terminal from the nearest residential area. Shell’s portion of the oil depot is likewise allegedly equipped with the latest technology to ensure air-quality control and water-quality control, and to prevent and cope with possible oil spills with a crisis management plan in place in the event that an oil spill occurs. Finally, Shell claims that the recommendations of EQE International in its Quantitative Risk Assessment (QRA) study, which it says is one of the leading independent risk assessment providers in the world and largest risk management consultancy, were sufficiently complied with; and that, on its own initiative, it adopted additional measures for the purpose, for which reason, “the individual risk level resulting from any incident occurring from the Pandacan Terminal, per the QRA study, is twenty (20) times lower compared to the individual risk level of an average working or domestic environment.”[131]
We are not persuaded.
The issue of whether or not the Pandacan Terminal is not a likely target of terrorist attacks has already been passed upon in G. R. No. 156052. Based on the assessment of the Committee on Housing, Resettlement and Urban Development of the City of Manila and the then position of the Sangguniang Panlungsod,[132] the Court was convinced that the threat of terrorism is imminent. It remains so convinced.
Even assuming that the respondents and intervenors were correct, the very nature of the depots where millions of liters of highly flammable and highly volatile products, regardless of whether or not the composition may cause explosions, has no place in a densely populated area. Surely, any untoward incident in the oil depots, be it related to terrorism of whatever origin or otherwise, would definitely cause not only destruction to properties within and among the neighboring communities but certainly mass deaths and injuries.
With regard to the scaling down of the operations in the Pandacan Terminals, which the oil companies continue to insist to have been validated and recognized by the MOU, the Court, in G.R. No. 156052, has already put this issue to rest. It specifically declared that even assuming that the terms of the MOU and Ordinance No. 8027 were inconsistent, the resolutions ratifying the MOU gave it full force and effect only until 30 April 2003.[133]
The steps taken by the oil companies, therefore, remain insufficient to convince the Court that the dangers posed by the presence of the terminals in a thickly populated area have already been completely removed.
For, given that the threat sought to be prevented may strike at one point or another, no matter how remote it is as perceived by one or some, we cannot allow the right to life to be dependent on the unlikelihood of an event. Statistics and theories of probability have no place in situations where the very life of not just an individual but of residents of big neighborhoods is at stake.
It is the removal of the danger to life not the mere subdual of risk of catastrophe, that we saw in and made us favor Ordinance No. 8027. That reason, unaffected by Ordinance No. 8187, compels the affirmance of our Decision in G.R. No. 156052.
In striking down the contrary provisions of the assailed Ordinance relative to the continued stay of the oil depots, we follow the same line of reasoning used in G.R. No. 156052, to wit:
Ordinance No. 8027 was enacted “for the purpose of promoting sound urban planning, ensuring health, public safety and general welfare” of the residents of Manila. The Sanggunian was impelled to take measures to protect the residents of Manila from catastrophic devastation in case of a terrorist attack on the Pandacan Terminals. Towards this objective, the Sanggunian reclassified the area defined in the ordinance from industrial to commercial.The same best interest of the public guides the present decision. The Pandacan oil depot remains a terrorist target even if the contents have been lessened. In the absence of any convincing reason to persuade this Court that the life, security and safety of the inhabitants of Manila are no longer put at risk by the presence of the oil depots, we hold that Ordinance No. 8187 in relation to the Pandacan Terminals is invalid and unconstitutional.
The following facts were found by the Committee on Housing, Resettlement and Urban Development of the City of Manila which recommended the approval of the ordinance:
The ordinance was intended to safeguard the rights to life, security and safety of all the inhabitants of Manila and not just of a particular class. The depot is perceived, rightly or wrongly, as a representation of western interests which means that it is a terrorist target. As long as it (sic) there is such a target in their midst, the residents of Manila are not safe. It therefore became necessary to remove these terminals to dissipate the threat. According to respondent:
Such a public need became apparent after the 9/11 incident which showed that what was perceived to be impossible to happen, to the most powerful country in the world at that, is actually possible. The destruction of property and the loss of thousands of lives on that fateful day became the impetus for a public need. In the aftermath of the 9/11 tragedy, the threats of terrorism continued [such] that it became imperative for governments to take measures to combat their effects.x x x x
Both law and jurisprudence support the constitutionality and validity of Ordinance No. 8027. Without a doubt, there are no impediments to its enforcement and implementation. Any delay is unfair to the inhabitants of the City of Manila and its leaders who have categorically expressed their desire for the relocation of the terminals. Their power to chart and control their own destiny and preserve their lives and safety should not be curtailed by the intervenors’ warnings of doomsday scenarios and threats of economic disorder if the ordinance is enforced.[134]
There is, therefore, no need to resolve the rest of the issues.
Neither is it necessary to discuss at length the test of police power against the assailed ordinance. Suffice it to state that the objective adopted by the Sangguniang Panlungsod to promote the constituents’ general welfare in terms of economic benefits cannot override the very basic rights to life, security and safety of the people.
In. G.R. No. 156052, the Court explained:
Essentially, the oil companies are fighting for their right to property. They allege that they stand to lose billions of pesos if forced to relocate. However, based on the hierarchy of constitutionally protected rights, the right to life enjoys precedence over the right to property. The reason is obvious: life is irreplaceable, property is not. When the state or LGU’s exercise of police power clashes with a few individuals’ right to property, the former should prevail.[135]We thus conclude with the very final words in G.R. No. 156052:
On Wednesday, January 23, 2008, a defective tanker containing 2,000 liters of gasoline and 14,000 liters of diesel exploded in the middle of the street a short distance from the exit gate of the Pandacan Terminals, causing death, extensive damage and a frightening conflagration in the vicinity of the incident. Need we say anthing about what will happen if it is the estimated 162 to 211 million liters [or whatever is left of the 26 tanks] of petroleum products in the terminal complex will blow up?[136]
V
As in the prequel case, we note that as early as October 2001, the oil companies signed a MOA with the DOE obliging themselves to:
... undertake a comprehensive and comparative study ... [which] shall include the preparation of a Master Plan, whose aim is to determine the scope and timing of the feasible location of the Pandacan oil terminals and all associated facilities and infrastructure including government support essential for the relocation such as the necessary transportation infrastructure, land and right of way acquisition, resettlement of displaced residents and environmental and social acceptability which shall be based on mutual benefit of the Parties and the public.such that:
Now that they are being compelled to discontinue their operations in the Pandacan Terminals, they cannot feign unreadiness considering that they had years to prepare for this eventuality.[137]On the matter of the details of the relocation, the Court gave the oil companies the following time frames for compliance:
To ensure the orderly transfer, movement and relocation of assets and personnel, the intervenors Chevron Philippines Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation shall, within a non-extendible period of ninety (90) days, submit to the Regional Trial Court of Manila, Branch 39, the comprehensive plan and relocation schedule which have allegedly been prepared. The presiding judge of Manila RTC, Branch 39 will monitor the strict enforcement of this resolution.[138]The periods were given in the Decision in G.R. No. 156052 which became final on 23 April 2009. Five years have passed, since then. The years of non-compliance may be excused by the swing of local legislative leads. We now stay the sway and begin a final count.
A comprehensive and well-coordinated plan within a specific time-frame shall, therefore, be observed in the relocation of the Pandacan Terminals. The oil companies shall be given a fresh non-extendible period of forty-five (45) days from notice within which to submit to the Regional Trial Court, Branch 39, Manila an updated comprehensive plan and relocation schedule. The relocation, in turn, shall be completed not later than six months from the date of their submission.
Finally, let it be underscored that after the last Manifestation filed by Shell informing this Court that respondent former Mayor Lim vetoed Ordinance No. 8283 for the second time, and was anticipating its referral to the President for the latter’s consideration, nothing was heard from any of the parties until the present petitions as to the status of the approval or disapproval of the said ordinance. As it is, the fate of the Pandacan Terminals remains dependent on this final disposition of these cases.
On the matter of the failure of Atty. Gempis to immediately comply with the directives of this Court to file the Memorandum for the Vice-Mayor and the city councilors who voted in favor of the assailed Ordinance, the records do not bear proof that he received a copy of any of the resolutions pertaining to the filing of the Memorandum.
A narration of the events from his end would show, however, that he was aware of the directive issued in 2009 when he stated that “when the City Legal Officer filed its Memorandum dated 8 February 2010, [he] thought the filing of a Memorandum for the other respondent city officials could be dispensed with.”[139] There was also a categorical admission that he received the later Resolution of 31 May 2011 but that he could not prepare a Memorandum defending the position of respondents vice-mayor and the city councilors who voted in favor of Ordinance No. 8187 in view of the on-going drafting of Ordinance No. 8283, which would change the position of the Sanggunian, if subsequently approved.
The reasons he submitted are not impressed with merit.
That he was not officially designated as the counsel for the vice-mayor and the city councilors is beside the point. As an officer of the court, he cannot feign ignorance of the fact that “a resolution of this Court is not a mere request but an order which should be complied with promptly and completely.”[140] As early as 2009, he should have immediately responded and filed a Manifestation and therein set forth his reasons why he cannot represent the vice-mayor and the city councilors. And, even assuming that the 31 May 2011 Resolution was the first directive he personally received, he had no valid excuse for disregarding the same. Worse, the Court had to issue a show cause order before he finally heeded.
Atty. Gempis should “strive harder to live up to his duties of observing and maintaining the respect due to the courts, respect for law and for legal processes and of upholding the integrity and dignity of the legal profession in order to perform his responsibilities as a lawyer effectively.”[141]
In Sibulo v. Ilagan,[142] which involves a lawyer’s repeated failure to comply with the directives of the Court, the penalty recommended by the Integrated Bar of the Philippines was reduced from suspension to reprimand and a warning. The Court ratiocinated:
Considering, however, that respondent was absolved of the administrative charge against him and is being taken to task for his intransigence and lack of respect, the Court finds that the penalty of suspension would not be warranted under the circumstances.We consider the participation of Atty. Gempis in this case and opt to be lenient even as we reiterate the objective of protecting the dispensation of justice. We deem it sufficient to remind Atty. Gempis to be more mindful of his duty as a lawyer towards the Court.
x x x x
To the Court’s mind, a reprimand and a warning are sufficient sanctions for respondent’s disrespectful actuations directed against the Court and the IBP. The imposition of these sanctions in the present case would be more consistent with the avowed purpose of disciplinary case, which is “not so much to punish the individual attorney as to protect the dispensation of justice by sheltering the judiciary and the public from the misconduct or inefficiency of officers of the court.”[143]
WHEREFORE, in light of all the foregoing, Ordinance No. 8187 is hereby declared UNCONSTITUTIONAL and INVALID with respect to the continued stay of the Pandacan Oil Terminals.
The incumbent mayor of the City of Manila is hereby ordered to CEASE and DESIST from enforcing Ordinance No. 8187. In coordination with the appropriate government agencies and the parties herein involved, he is further ordered to oversee the relocation and transfer of the oil terminals out of the Pandacan area.
As likewise required in G.R. No. 156052, the intervenors Chevron Philippines, Inc., Pilipinas Shell Petroleum Corporation, and Petron Corporation shall, within a non-extendible period of forty-five (45) days, submit to the Regional Trial Court, Branch 39, Manila an updated comprehensive plan and relocation schedule, which relocation shall be completed not later than six (6) months from the date the required documents are submitted. The presiding judge of Branch 39 shall monitor the strict enforcement of this Decision.
For failure to observe the respect due to the Court, Atty. Luch R. Gempis, Jr., Secretary of the Sangguniang Panlungsod, is REMINDED of his duties towards the Court and WARNED that a repetition of an act similar to that here committed shall be dealt with more severely.
SO ORDERED.
Sereno, Chief Justice, join J. Leonen in his Concurring & Dissenting Opinion.
Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Villarama, Jr., Mendoza, Reyes, and Perlas-Bernabe, JJ., concur.
Carpio, J., no part one of the counsels is my former law firm.
Brion, J., on leave.
Leonen, J., see separate concurring and dissenting opinion.
Jardeleza, J., No part. Intervenor part former employer group.
[1] In a Resolution dated 21 July 2009, the Court granted the motion to drop respondent Ernesto Rivera as a party-respondent on the ground that he actually voted against the enactment of the assailed ordinance. Rollo in G.R. No. 187916, Vol. I, (no proper pagination, should be pp. 148-149).
[2] Rollo in G.R. No. 187836, Vol. I, pp. 3-20. Petition (for Prohibition) filed on 1 June 2009; rollo in G.R. No. 187916, Vol. I, pp. 11-115. Urgent Petition for Prohibition, Mandamus and Certiorari (with Application for an Injunction and Temporary Restraining Order) filed on 5 June 2009. Id. at 116. Resolution dated 9 June 2009 consolidating G.R. No. 187916 with G.R. No. 187836.
[3] Approved by former Mayor Alfredo S. Lim on 28 May 2009. Rollo in G.R. No. 187916, Vol. I, pp. 70-75. Annex “A” of the Urgent Petition for Prohibition, Mandamus and Certiorari.
[4] Approved by former Mayor Jose L. Atienza, Jr. on 28 November 2001. Id. at 76-77. Annex “B” of the Urgent Petition for Prohibition, Mandamus and Certiorari.
[5] Approved by former Mayor Jose L. Atienza on 16 June 2006. Id. at 78-115. Annex “C” of the Urgent Petition for Prohibition, Mandamus and Certiorari.
[6] In a Resolution dated 21 July 2009, the Court granted the motion to drop respondent Ernesto Rivera as a party-respondent on the ground that he actually voted against the enactment of the assailed ordinance. Rollo in G.R. No. 187916, Vol. I, (no proper pagination, should be pp. 148-149).
[7] Rollo in G.R. No. 187836, Vol. III, pp. 917-1065, Motion for Leave to Intervene filed by Petron on 1 December 2009; pp. 1234-1409, Urgent Motion for Leave to Intervene and to Admit Attached Comment-in-Intervention filed by Shell on 15 December 2009; rollo in G.R. No. 187916, Vol. II, pp. 367-373, Motion for Leave to Intervene and Admit Attached Consolidated Comment in Intervention filed by Chevron on 25 November 2009.
[8] 546 Phil. 485 (2007). Decision and Resolution 568 Phil. 658 (2008).
[9] Social Justice Society v. Hon. Atienza, Jr., 568 Phil. 658, 703 (2008).
[10] Id. at 684.
[11] Id. at 699.
[12] Id. at 723.
[13] Id. at 673-676.
[14] Rollo in G.R. No. 187916, Vol. II, pp. 428-432. Annex “1” of the Urgent Petition for Prohibition, Mandamus and Certiorari.
The MOA reads:
x x xx
1. Immediately upon the execution of this Agreement, CALTEX, PETRON and SHELL shall jointly undertake a comprehensive and comparative study of the various alternatives to minimize the potential risks and hazards posed by the proximity of communities, businesses and offices to the Pandacan oil terminals and to respond to such risks and hazards to the satisfaction of the relevant stakeholders. The study shall include the preparation of a Master Plan, whose aim is to determine the scope and timing of the feasible relocation of the Pandacan oil terminals and all associated facilities and infrastructure including government support essential for the relocation such as the necessary transportation infrastructure, land and right of way acquisition, resettlement of displaced residents and environmental and social acceptability which shall be based on mutual benefit of the Parties and the public.
The study and Master Plan shall also take into full consideration (i) the integrity, reliability and security of supply and distribution of petroleum products to Metro Manila and the rest of Luzon as well as the interest of consumers and users of such petroleum products; (ii) the impact of relocation on the other depots/terminals similarly situated in other parts of the country; (iii) the security, safety and welfare of the inhabitants around the current site and those of the proposed sites; and (iv) the incremental investment, operating and other related costs for the proposed relocation.
The study and Masterplan shall be completed within twelve (12) months from the date of execution of this Agreement.
2. The DOE shall participate in the presentation of the study and Master Plan by, among others, providing the policy framework and recommending the necessary infrastructure, fiscal and non-fiscal, investment incentives and other support measures as enumerated in paragraph 1 above including the promotion of appropriate legislative proposals, coordination with other government agencies, identification of the necessary governmental resources and the provision of other measures that would facilitate the attainment of objectives of this Agreement.
3. Subject to paragraphs 1 & 2 hereof, the Master Plan shall be implemented in phases to be completed within a period of no more than five (5) years from the date of execution of this Agreement; provided, that the commencement of the first phase shall occur within 2003.
4. The relocation of the Pandacan liquefied petroleum gas (LPG), facilities of CALTEX, PETRON and SHELL shall form part of the first phase of relocation.
x x x x
[15] Id. at 429.
[16] Id.
[17] Id.
[18] Id.
[19] Rollo in G.R. No. 187916, Vol. I, p. 76.
The Ordinance reads:
[20] Rollo in G.R. No. 187916, Vol. II, pp. 434-440. Annex “2” of the Consolidated Comment in Intervention.ORDINANCE NO. 8027
AN ORDINANCE RECLASSIFYING THE LAND USE OF THAT PORTION OF LAND BOUNDED BY THE PASIG RIVER IN THE NORTH, x x x FROM INDUSTRIAL II TO COMMERCIAL I
Be it ordained by the City Council of Manila, THAT:
SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety, and general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the land use of [those] portions of land bounded by the Pasig River in the north, PNR Railroad Track in the east, Beata St. in the south, Palumpong St. in the southwest, and Estero de Pandacan in the west[,] PNR Railroad in the northwest area, Estero de Pandacan in the northeast, Pasig River in the southeast and Dr. M.L. Carreon in the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from Industrial II to Commercial I.
x x x x
SEC. 3. Owners or operators of industries and other businesses, the operation of which are no longer permitted under Section 1 hereof, are hereby given a period of six (6) months from the date of effectivity of this Ordinance within which to cease and desist from the operation of businesses which are hereby in consequence, disallowed.
[21] Id. at 435.
[22] Id. at 435-436.
The oil companies undertook to do the following:
Section 1. - Consistent with the objectives stated above, the OIL COMPANIES shall, upon signing of this MOU, undertake a program to scale down the Pandacan Terminals which shall include, among others, the immediate removal/decommissioning process of TWENTY EIGHT (28) tanks starting with the LPG spheres and the commencing of works for the creation of safety buffer and green zones surrounding the Pandacan Terminals. x x x
Section 2. – Consistent with the scale-down program mentioned above, the OIL COMPANIES shall establish joint operations and management, including the operation of common, integrated and/or shared facilities, consistent with international and domestic technical, safety, environmental and economic considerations and standards. Consequently, the joint operations of the OIL COMPANIES in the Pandacan Terminals shall be limited to the common and integrated areas/facilities. A separate agreement covering the commercial and operational terms and conditions of the joint operations, shall be entered into by the OIL COMPANIES.
Section 3. - The development and maintenance of the safety and green buffer zones mentioned therein, which shall be taken from the properties of the OIL COMPANIES and not from the surrounding communities, shall be the sole responsibility of the OIL COMPANIES.
The City of Manila and DOE, on the other hand, tasked themselves to:
Section 1. - The City Mayor shall endorse to the City Council this MOU for its appropriate action with the view of implementing the spirit and intent thereof.
Section 2. - The City Mayor and the DOE shall, consistent with the spirit and intent of this MOU, enable the OIL COMPANIES to continuously operate in compliance with legal requirements, within the limited area resulting from the joint operations and the scale down program.
Section 3. - The DOE and the City Mayor shall monitor the OIL COMPANIES’ compliance with the provisions of this MOU.
Section 4. - The CITY OF MANILA and the national government shall protect the safety buffer and green zones and shall exert all efforts at preventing future occupation or encroachment into these areas by illegal settlers and other unauthorized parties.
[23] Id. at 580-581. Annex “6” of the Consolidated Comment in Intervention.
[24] Id. at 582.
[25] Supra note 8.
[26] Id. at 490.
[27] Social Justice Society v. Hon. Atienza, Jr., supra note 9 at 671.
[28] Id.
[29] Rollo in G.R. No. 187916, Vol. I, pp. 78-115. Annex “C” of the Urgent Petition for Prohibition, Mandamus and Certiorari.
[30] Id. at 79-80.
SEC. 7. Division into Zones or Districts – To effectively carry out the provisions of this Ordinance, the City of Manila is hereby divided into the following zones or districts as shown in the Official Zoning Maps.
A. General Residential Zone:[31] Id. at 92.
1. High Density Residential/Mixed Use Zone (R-3/MXD)
B. Commercial Zones:
2. Medium Intensity Commercial/Mixed Use Zone (C-2/MXD)
3. High Intensity Commercial/Mixed Use Zone (C-3/MXD)
C. Industrial Zone:
4. Light Industrial Zone (I-1)
D. Institutional Zones:
5. General Institutional Zone (INS-G)
6. University Cluster Zone (INS-U)
E. Public Open Space Zones:
7. General Public Open Space Zone (POS-GEN)
7.a Parks and Plazas (POS-PP)
7.b Playground and Sports Field/Recreation Zone (POS-PSR)
8. Cemetery Zone (POS-CEM)
F. Others
9. Utility Zone (UTL)
10. Water Zone (WTR)
11. Overlay Zones:
11.1 Histo-Cultural Heritage Overlay Zone (O-HCH)
11.2 Planned Unit Development Overlay Zone (O-PUD)
11.3 Buffer Overlay Zone (O-BUF) (Emphasis supplied)
SEC. 23. Use Regulations in Planned Unit Development/Overlay Zone (O-PUD). – O-PUD Zones are identified specific sites in the City of Manila wherein the project site is comprehensively planned as an entity via unitary site plan which permits flexibility in planning/design, building siting, complementarily of building types and land uses, usable open spaces and the preservation of significant natural land features, pursuant to regulations specified for each particular PUD. Enumerated below are identified PUD:
x x x x[32] Id. at 114.
6. Pandacan Oil Depot Area
x x x x
Enumerated below are the allowable uses:
1. all uses allowed in all zones where it is located
2. the [Land Use Intensity Control (LUIC)] under which zones are located shall, in all instances be complied with
3. the validity of the prescribed LUIC shall only be [superseded] by the development controls and regulations specified for each PUD as provided for each PUD as provided for by the masterplan of respective PUDs. (Emphasis supplied)
[33] Social Justice Society v. Mayor Atienza, Jr. supra note 8 at 494.
[34] Id. at 490-491.
[35] Id. at 493-494.
[36] Social Justice Society v. Hon. Atienza, Jr., supra note 9 at 673.
[37] Id. at 723.
[38] Id. at 1792-1793.
[39] Rollo in G.R. No. 156052, pp. 1793. Manifestation and Motion filed on 18 March 2009.
[40] Id. at 1792 -1803.
[41] Id. at 1813-1816. Resolution dated 28 April 2009.
[42] Id. at 1816.
[43] Id. (no proper pagination, should be pp. 1844-1845. Resolution dated 2 June 2009.
[44] Id. (no proper pagination, should be p. 1846). Resolution dated 9 June 2009 with respect to the City Legal Office’s Motion to Excuse from Filing Comment (on Petitioners’ Manifestation and Motion and on Petitioners’ Very Urgent Motion to Cite the Members of the City Council in Direct Contempt of Court), and the Comment. Id. (no proper pagination, should be pp. 1880-1881). Resolution dated 23 June 2009 with respect to the Reply to the Comment filed by the counsel for the petitioners.
[45] Rollo, in G.R. No. 187916, Vol. I, pp. 70-74.
The Ordinance reads:
AN ORDINANCE AMENDING ORDINANCE NO. 8119, OTHERWISE KNOWN AS “THE MANILA COMPREHENSIVE LAND USE PLAN AND ZONING ORDINANCE OF 2006”, BY CREATING A MEDIUM INDUSTRIAL ZONE (1-2) AND HEAVY INDUSTRIAL ZONE (1-3), AND PROVIDING FOR ITS ENFORCEMENT.
Be it ordained by the City Council of Manila, in session, assembled, THAT:
SECTION 1. Ordinance No. 8119, otherwise known as the “Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006” is hereby amended by creating a Medium Industrial Zone (1-2) and Heavy Industrial Zone (1-3) to read as follows:
1. Use Regulations in Medium Industrial Zone (1-2)SEC. 2. The land use where the existing industries are located, the operation of which are permitted under Section 1 hereof, are hereby classified as Industrial Zone.
The Medium Industrial Zone (I-2) shall be for Pollutive/Non-Hazardous and Pollutive/Hazardous manufacturing and processing establishments. Enumerated below are the allowable uses:
a. Pollutive/Hazardous Industries2. Use Regulations in Heavy Industrial Zone (1-3)
1. Manufacture and canning of ham
2. Poultry processing and canning
3. Large-scale manufacture of ice cream
4. Corn Mill/Rice Mill
5. Chocolate and Cocoa Factory
6. Candy Factory
7. Chewing Gum Factory
8. Peanuts and other nuts factory
9. Other chocolate and confectionary products
10. Manufacture of flavoring extracts
11. Manufacture of food products n.e.c (vinegar, vetsin)
12. Manufacture of fish meal
13. Oyster shell grading
14. Manufacture of medicinal and pharmaceutical preparations
15. Manufacture of stationary, art goods, cut stone and marble products
16. Manufacture of abrasive products
17. Manufacture of miscellaneous non-metallic mineral products n.e.c.
18. Manufacture of cutlery, except table flatware
19. Manufacture of hand tools
20. Manufacture of general hardware
21. Manufacture of miscellaneous cutlery hand tools and general hardware n.e.c.
22. Manufacture of household metal furniture
23. Manufacture of office, store and restaurant metal furniture
24. Manufacture of metal blinds, screens and shades
25. Manufacture of miscellaneous furniture and fixture primarily of metal n.e.c.
26. Manufacture of fabricated structural iron and steel
27. Manufacture of architectural and ornamental metal works
28. Manufacture of boiler, tanks and other structural sheet metal works
29. Manufacture of other structural products n.e.c.
30. Manufacture of metal cans, boxes and containers
31. Manufacture of stamped coated and engraved metal products
32. Manufacture of fabricated wire and cable
33. Manufacture of heating, cooking and lighting equipment except electrical
34. Metal sheet works generally of manual operation
35. Manufacture of other fabricated metal products except machinery and equipment n.e.c.
36. Manufacture or assembly of agricultural machinery and equipment
37. Native plow and harrow factory
38. Repair of agricultural machinery
39. Manufacture or assembly of service industry machines
40. Manufacture or assembly of elevators or escalators
41. Manufacture or assembly of sewing machines
42. Manufacture or assembly of cooking ranges
43. Manufacture or assembly of water pumps
44. Refrigeration industry
45. Manufacture or assembly of other machinery and equipment except electrical n.e.c.
46. Manufacture and repair of electrical apparatus
47. Manufacture and repair of electrical cables and wires
48. Manufacture of cables and wires
49. Manufacture of other electrical industrial machinery and apparatus n.e.c.
50. Manufacture or assembly of electric equipment such as radio, television, tape, tape recorders and stereo
51. Manufacture or assembly of radio and television transmitting, signaling and detection equipment
52. Manufacture or assembly of telephone and telegraphic equipment
53. Manufacture of other electronic equipment and apparatus n.e.c.
54. Manufacture of industrial and commercial electrical appliances
55. Manufacture of household cooking, heating and laundry appliances
56. Manufacture of other electrical appliances n.e.c.
57. Manufacture of electrical lamp fixtures
b. Pollutive/Hazardous (sic) Industries
1. Flour Mill
2. Cassava Flour Mill
3. Manufacturing of coffee
4. Manufacturing of unprepared animal feeds, other grain milling n.e.c.
5. Production prepared feed for animals
6. Cigar and cigarette Factory
7. Curing and redrying tobacco leaves
8. Miscellaneous processing tobacco leaves n.e.c.
9. Weaving hemp textile
10. Jute spinning and weaving
11. Miscellaneous spinning and weaving mills n.e.c.
12. Hosiery mill
13. Underwear and outwear knitting mills
14. Fabric knitting mills
15. Miscellaneous knitting mills n.e.c.
16. Manufacture of mats and mattings
17. Manufacture of carpets and rugs
18. Manufacture of cordage, rope and twine
19. Manufacture of related products from abaca, sisal, henequen, hemp, cotton, paper, etc.
20. Manufacture of linoleum and other surface coverings
21. Manufacture of machines for leather and leather products
22. Manufacture of construction machinery
23. Manufacture of machines for clay, stove and glass industries
24. Manufacture, assembly, repair, rebuilding of miscellaneous special industrial machinery and equipment n.e.c.
25. Manufacture of dry cells, storage battery and other batteries
26. Boat building and repairing
27. Ship repairing industry, dock yards, dry dock, shipways
28. Miscellaneous shipbuilding and repairing n.e.c.
29. Manufacture of locomotive and parts
30. Manufacture of railroads and street cars
31. Manufacture of assembly of automobiles, cars, buses, trucks and trailers
32. Manufacture of wood furniture including upholstered
33. Manufacture of rattan furniture including upholstered
34. Manufacture of box beds and mattresses
The Heavy Industrial Zone (1-3) shall be for highly Pollutive/Non-Hazardous; Pollutive/Hazardous; Highly Pollutive/Extremely Hazardous; Non-Pollutive/Extremely Hazardous; and Pollutive/Extremely Hazardous manufacturing and processing establishments. Enumerated below are the allowable uses:
a. Highly Pollutive/Non-Hazardous Industries
1. Meat processing, curing, preserving except processing of ham, bacon, sausage and chicharon
2. Milk processing plants (manufacturing filled, reconstituted or recombined milk, condensed or evaporated)
3. Butter and cheese processing plants
4. Natural fluid milk processing (pasteurizing, homogenizing, vitaminizing bottling of natural animal milk and cream related products)
5. Other dairy products n.e.c.
6. Canning and preserving of fruits and fruit juices
7. Canning and preserving of vegetables and vegetable juices
8. Canning and preserving of vegetable sauces
9. Miscellaneous canning and preserving of fruits and vegetables, n.e.c.
10. Fish canning
11. Patis factory
12. Bagoong factory
13. Processing, preserving and canning of fish and other seafoods, n.e.c.
14. Manufacture of dessicated coconut
15. Manufacture of starch and its by-products
16. Manufacture of wines from juices of local fruits
17. Manufacture of malt and malt liquors
18. Manufacture of soft drinks carbonated water
19. Manufacture of instant beverages and syrups
20. Other non-alcoholic beverages, n.e.c.
21. Other slaughtering, preparing and preserving meat products, n.e.c.
b. Highly Pollutive/Hazardous Industries
1. Vegetable oil mills, including coconut oil
2. Manufacturing of refined cooking oil and margarine
3. Manufacture of fish, marine and other animal oils
4. Manufacture of vegetable and animal oils and fats, n.e.c.
5. Sugar cane milling (centrifugal refined)
6. Sugar refining
7. Muscovado Sugar Mill
8. Distilled, rectified and blended liquors, n.e.c.
9. Cotton textile mill
10. Ramie textile mill
11. Rayon and other man-made fiber textile mill
12. Bleaching and drying mills
13. Manufacture of narrow fabrics
14. Tanneries and leather finishing plants
15. Pulp mills
16. Paper and paperboard mills
17. Manufacture of fiberboard
18. Manufacture of inorganic salts and compounds
19. Manufacture of soap and cleaning preparations
20. Manufacture of hydraulic cement
21. Manufacture of lime and lime kilns
22. Manufacture of plaster
23. Products of blast furnace, steel works and rolling mills
24. Product of iron and steel foundries
25. Manufacture of smelted and refined non-ferrous metals
26. Manufacture of rolled, drawn or astruded non-ferrous metals
27. Manufacture of non-ferrous foundry products
c. Highly Pollutive/Extremely Hazardous Industries
1. Manufacture of industrial alcohols
2. Other basic industrial chemicals
3. Manufacture of fertilizers
4. Manufacture of pesticides
5. Manufacture of synthetic resins, plastic materials and man-made fibers except glass
6. Petroleum refineries and oil depots
7. Manufacture of reclaimed, blended and compound petroleum products
8. Manufacture of miscellaneous products of petroleum and coal
d. Pollutive/Extremely Hazardous Industries
1. Manufacture of paints
2. Manufacture of varnishes, shellac and stains
3. Manufacture of paint removers
4. Manufacture of other paint products
5. Manufacture of matches
6. Manufacture of tires and inner tubes
7. Manufacture of processed natural rubber not in rubber plantations
8. Manufacture of miscellaneous rubber products, n.e.c.
e. Non-Pollutive/Extremely Hazardous Industries
1. Manufacture of compressed and liquefied gases
The City Planning and Development Office (CPDO) shall prepare an amended Zoning Map and Zoning Boundaries which shall be submitted to the City Council for review.
SEC. 3. The Zoning Fees shall be P10/sq. m. of total floor area for MEDIUM INDUSTRIAL ZONE (1-2) and P10/sq. m. of total floor area for HEAVY INDUSTRIAL ZONE (1-3).
SEC. 4. Repealing Clause. – Ordinance No. 8027, Section 23 of Ordinance No. 8119 and all other Ordinances or provisions therein inconsistent with the provisions of this Ordinance are hereby repealed, amended, rescinded or modified accordingly.
SEC. 5. Effectivity Clause. – This Ordinance shall take effect fifteen (15) days after its publication in accordance with law.
x x x x.
[46] Id. at 74.
Sec. 4 of Ordinance No. 8187 reads:
SEC. 4. Repealing Clause. – Ordinance No. 8027, Section 23 of Ordinance No. 8119 and all other Ordinances or porvisions therein inconsistent with the provisions of this Ordinance are hereby repealed, amended, rescinded or otherwise modified accordingly.
[47] Section 18. Legislative powers. – The Municipal Board shall have the following legislative powers:
x x x x[48] SECTION 16. General Welfare. – Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
(kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers and duties conferred by this chapter; and to fix penalties for the violation of ordinances which shall not exceed to two hundred pesos fine or six months’ imprisonment, or both such fine and imprisonment, for a single offense.
[49] Article 8, Civil Code.
[50] Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.
[51] Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.
[52] SEC. 4. Recognition of Rights. - Pursuant to the above-declared principles, the following rights of citizens are hereby sought to be recognized and the State shall seek to guarantee their enjoyment:
[a] The right to breathe clean air;
[b] The right to utilize and enjoy all natural resources according to the principles of sustainable development;
[c] The right to participate in the formulation, planning, implementation and monitoring of environmental policies and programs and in the decision-making process;
[d] The right to participate in the decision-making process concerning development policies, plans and programs projects or activities that may have adverse impact on the environment and public health;
[e] The right to be informed of the nature and extent of the potential hazard of any activity, undertaking or project and to be served timely notice of any significant rise in the level of pollution and the accidental or deliberate release into the atmosphere of harmful or hazardous substances;
[f] The right of access to public records which a citizen may need to exercise his or her rights effectively under this Act;
[g] The right to bring action in court or quasi-judicial bodies to enjoin all activities in violation of environmental laws and regulations, to compel the rehabilitation and cleanup of affected area, and to seek the imposition of penal sanctions against violators of environmental laws; and
[h] The right to bring action in court for compensation of personal damages resulting from the adverse environmental and public health impact of a project or activity.
[53] SEC. 12. Ambient Air Quality Guideline Values and Standards.- The Department, in coordination with other concerned agencies, shall review and or revise and publish annually a list of hazardous air pollutants with corresponding ambient guideline values and/or standard necessary to protect health and safety, and general welfare. The initial list and values of the hazardous air pollutants shall be as follows:
a) For National Ambient Air Quality Guideline for Criteria Pollutants:
Short Term a Long Term b Pollutants Suspended Particulate Matterc-TSP 230d 24 hours 90 ---- 1 yeare -PM-10 150f 24 hours 60 ---- 1 yeare Sulfur Dioxidec 180 0.07 24 hours 80 0.03 1 year Nitrogen Dioxide 150 0.08 24 hours ---- ---- ---- Photochemical Oxidants 140 0.07 1 hour ---- ---- ---- As Ozone 60 0.03 8 hours ---- ---- ---- Carbon Monoxide 35mg/Ncm 30 1 hour ---- ---- ---- 10mg/Ncm 9 8 hours Leadg 1.5 ---- 3 monthsg 1.0 ---- 1 year
- Maximum limits represented by ninety-eight percentile (98%) values not to be exceed more than once a year.
- Arithmetic mean
- SO2 and Suspended Particulate matter are sampled once every six days when using the manual methods. A minimum of twelve sampling days per quarter of forty-eight sampling days each year is required for these methods. Daily sampling may be done in the future once continuous analyzers are procured and become available.
- Limits for Total Suspended Particulate Matter with mass median diameter less than 25-50 um.
- Annual Geometric Mean
- Provisional limits for Suspended Particulate Matter with mass median diameter less than 10 microns and below until sufficient monitoring data are gathered to base a proper guideline.
- Evaluation of this guideline is carried out for 24-hour averaging time and averaged over three moving calendar months. The monitored average value for any three months shall not exceed the guideline value.
Pollutants1 1. Ammonia 30 Nesselerization/ Indo Phenol 2. Carbon Disulfide 30 Tischer Method 3. Chlorine and Chlorine Compounds expressed as Cl2 5 Methyl Orange 4. Formaldehyde Chromotropic acid Method or MBTH Colorimetric Method 5. Hydrogen Chloride Volhard Titration with Iodine Solution 6. Hydrogen Sulfide Methylene Blue 7. Lead AASc 8. Nitrogen Dioxide Greiss- Saltzman 9. Phenol 4-Aminoantiphyrine 10. Sulfur Dioxide Colorimetric-Pararosaniline 11. Suspended Particulate Matter-TSP 60 Gravimetric
- Pertinent ambient standards for Antimony, Arsenic, Cadmium, Asbestos, Nitric Acid and Sulfuric Acid Mists in the 1978 NPCC Rules and Regulations may be considered as guides in determining compliance.
- Ninety-eight percentile (98%) values of 30-minute sampling measured at 250C and one atmosphere pressure.
- Other equivalent methods approved by the Department may be used.
a) Variable, including atmospheric conditions, which of themselves or in combination with other factors may alter the effects on public health or welfare of such air pollutant;
b) The other types of air pollutants which may interact with such pollutant to produce an adverse effect on public health or welfare; and
c) The kind and extent of all identifiable effects on public health or welfare which may be expected from presence of such pollutant in the ambient air, in varying quantities.
The Department shall base such ambient air quality standards on World Health Organization (WHO) standards, but shall not be limited to nor be less stringent than such standards.
[54] SEC. 19. Pollution From Stationary Sources.- The Department shall, within two (2) years from the effectivity of this Act, and every two (2) years thereafter, review, or as the need therefore arises, revise and publish emission standards, to further improve the emission standards for stationary sources of air pollution. Such emission standards shall be based on mass rate of emission for all stationary source of air pollution based on internationally accepted standards, but not be limited to, nor be less stringent than such standards and with the standards set forth in this section. The standards, whichever is applicable, shall be the limit on the acceptable level of pollutants emitted from a stationary source for the protection of the public’s health and welfare.
With respect to any trade, industry, process and fuel-burning equipment or industrial plant emitting air pollutants, the concentration at the point of emission shall not exceed the following limits:
1. Antimony and Its compounds 2. Arsenic and its compounds 3. Cadmium and its compounds 4. Carbon Monoxide 5. Copper and its Compounds 6. Hydrofluoric Acids and Fluoride compounds 7. Hydrogen Sulfide 8. Lead 9. Mercury 10. Nickel and its compounds, except Nickel Carbonyl f 11. NOx 12. Phosphorus Pentoxideg 13. Zinc and its Compounds
- Other equivalent methods approved by the Department may be used.
- Atomic Absorption Specttrophotometry
- All new geothermal power plants starting construction by 01 January 1995 shall control HsS emissions to not more than 150 g/GMW-Hr.
- All existing geothermal power plants shall control HsS emissions to not more than 200 g/GMW-Hr within 5 years from the date of effectivity of these revised regulations.
- Best practicable control technology for air emissions and liquid discharges. Compliance with air and water quality standards is required.
- Emission limit of Nickel Carbonyl shall not exceed 0.5 mg/Ncm.
- Provisional Guideline
1. Fuel Burning Equipment a) Urban or Industrial Area 150 mg/Ncm b) Other Area 200 mg/Ncm 2. Cement Plants (Kilns, etc.) 150 mg/Ncm 3. Smelting Furnaces 150 mg/Ncm 4. Other Stationary Sourcesa 200 mg/Ncm
- Other Stationary Sources means a trade, process, industrial plant, or fuel burning equipment other than thermal power plants, industrial boilers, cement plants, incinerators and smelting furnaces.
(1) Existing Sources
(2) New Sources
(i) Manufacture of Sulfuric Acid and Sulf(on)ation Process 2.0gm.Ncm as SO3 (ii) Fuel burning Equipment 1.5gm.Ncm as SO2 (iii) Other Stationary Sourcesa 1.0gm.Ncm as SO3
For stationary sources of pollution not specifically included in the immediately preceding paragraph, the following emission standards shall not be exceeded in the exhaust gas:
(i) Manufacture of Sulfuric Acid and Sulf(on)ation Process 1.5 gm.Ncm as SO3 (ii) Fuel Burning Equipment 0.7 gm.Ncm as SO2 (iii) Other Stationary Sourcesa 0.2 gm.Ncm as SO3
- Other Stationary Sources refer to existing and new stationary sources other than those caused by the manufacture of sulfuric acid and sulfonation process, fuel burning equipment and incineration.
I. Daily And Half Hourly Average Values
II. All the Average Values Over the Sample Period of a Minimum of 4 and Maximum of 8 Hours.
Total dust Gaseous and vaporous organic substances, expressed as total organic carbon Hydrogen chloride (HCl) Hydrogen fluoride (HF) Sulfur dioxide (SO2) Ammonia
These average values cover also gaseous and the vapor forms of the relevant heavy metal emission as well as their compounds: Provided, That the emission of dioxins and furans into the air shall be reduced by the most progressive techniques: Provided, further, That all average of dioxin and furans measured over the sample period of a minimum of 5 hours and maximum of 8 hours must not exceed the limit value of 0.1 nanogram/m3.
Cadmium and its compounds, expressed as cadmium (Cd) total 0.05 Thallium and its compounds, expressed as thallium (Tl) mg/m3 Mercury and its Compounds, expressed as mercury (Hg) 0.05 mg/m3 Antimony and its compounds, expressed as antimony (Sb) Arsenic and its compounds, expressed as arsenic (As) total 0.5 mg/m3 Lead and its compounds, expressed as lead ( Pb) Chromium and its compounds, expressed as chromium (Cr) Cobalt and its compounds, expressed as cobalt (Co) Copper and its compounds, expressed as copper (Cu) Manganese and its compounds, expressed as manganese (Mn) Nickel and its compounds, expressed as nickel (Ni) Vanadium and its compounds, expressed as vanadium (V) Tin and its compounds, expressed as tin (Sn)
Pursuant to Sec. 8 of this Act, the Department shall prepare a detailed action plan setting the emission standards or standards of performance for any stationary source the procedure for testing emissions for each type of pollutant, and the procedure for enforcement of said standards.
Existing industries, which are proven to exceed emission rates established by the Department in consultation with stakeholders, after a thorough, credible and transparent measurement process shall be allowed a grace period of eighteen (18) months for the establishment of an environmental management system and the installation of an appropriate air pollution control device: Provided, That an extension of not more than twelve (12) months may be allowed by the Department on meritorious grounds.
[55] SEC. 30. Ozone-Depleting Substances.- Consistent with the terms and conditions of the Montreal Protocol on Substances that Deplete the Ozone Layer and other international agreements and protocols to which the Philippines is a signatory, the Department shall phase out ozone-depleting substances.
Within sixty (60) days after the enactment of this Act, the Department shall publish a list of substances which are known to cause harmful effects on the stratospheric ozone layer.
[56]
1. States Parties recognize that every child has the inherent right to life.
2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
[57]
1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:
(a) To diminish infant and child mortality;3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.
(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;
(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;
(d) To ensure appropriate pre-natal and post-natal health care for mothers;
(e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;
(f) To develop preventive health care, guidance for parents and family planning education and services.
4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries.
[58]
- States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.
- The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development.
- States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.
- States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.
[60] Id. at 58-59.
[61] Rollo in G.R. No. 187916, Vol. IV, pp. 1846-1926.
[62] Resolutions dated 20 October 2009, rollo in G.R. No. 187916, Vol. I (no proper pagination, should be 319-320; 15 June 2010, rollo in G.R. No. 187916, Vol. IV, pp. 1979-1980; 31 August 2010, rollo in G.R. No. No. 187916, Vol. IV, pp. 2002-2003; 31 May 2011, rollo in G.R. No. 187916, Vol. V, pp. 2347-2348; and 17 July 2012, rollo in G.R. No. 187836, Vol. VI, pp. 2746-2747.
[63] Rollo in G.R. No. 187916, Vol. I, pp. 282-300.
[64] Id., Vol. IV, pp. 2128-2132.
[65] Id. at 2129.
[66] Id.
[67] Id., Vol. V, pp. 2661-2662.
The new Ordinance reads:
[68] Id. at 2662.ORDINANCE NO. 8283
AN ORDINANCE AMENDING SECTION 2 OF ORDINANCE NO. 8187 BY RECLASSIFYING THE AREA WHERE PETROLEUM REFINERIES AND OIL DEPOTS ARE LOCATED FROM HEAVY INDUSTRIAL (1-3) TO HIGH INTENSITY COMMERCIAL/MIXED USE ZONE (C3/MXD)
Be it ordained by the City Council of Manila, in session, assembled, THAT:
SEC. 1. Section 2 of Ordinance No. 8187 shall be amended to read as follows:
“SEC. 2. The land use where the existing industries are located, the operation of which are permitted under Section 1 hereof, are hereby classified as Industrial Zone except the area where petroleum refineries and oil depots are located, which shall be classified as High Intensity Commercial/Mixed Use Zone (C3/MXD).”SEC. 2. Owners or operators of petroleum refineries and oil depots, the operation of which are no longer permitted under Section 1 hereof, are hereby given a period until the end of January 2016 within which to relocate the operation of their businesses.
SEC. 3. The City Planning and Development Office shall prepare an amended zoning map and zoning boundaries which shall be submitted to the City Council for review.
SEC. 4. All ordinances or provisions which are inconsistent with the provisions of this Ordinance are hereby repealed, amended, rescinded or modified accordingly.
SEC. 5. This Ordinance shall take effect fifteen (15) days after its publication in accordance with law.
This Ordinance was finally enacted by the City Council of Manila on August 28, 2012.
PRESIDED BY:
FRANCISCO “Isko Moreno” DOMAGOSO
Vice-Mayor and Presiding Officer
City Council, Manila
The bottom portion of Ordinance No. 8283 reads:
BY HIS HONOR, THE MAYOR ON 11 Sept. 2012,
I veto this Ordinance for being prejudicial to public welfare and in view of the pending cases in the Supreme Court (G.R. No. 187836 and G.R. No. 187916)
[69] Id. at 2516-2518.
[70] Id. at 2526-2534.
[71] Resolutions dated 20 October 2009, rollo in G.R. No. 187916, Vol. I (no proper pagination, should be 319-320); 15 June 2010, rollo in G.R. No. 187916, Vol. IV, pp. 1979-1980; 31 August 2010, rollo in G.R. No. No. 187916, Vol. IV, pp. 2002-2003; 31 May 2011, rollo in G.R. No. 187916, Vol. V, pp. 2347-2348; and 17 July 2012, rollo in G.R. No. 187836, Vol. VI, pp. 2746-2747.
[72] Rollo in G.R. No. 187916, Vol. IV, pp. 2495-2503.
[73] SECTION 481. Qualifications, Term Powers and Duties. – x x x
x x x x
(b) The legal officer, the chief legal counsel of the local government unit, shall take charge of the office for legal services and shall:
x x x x
(3) In addition to the foregoing duties and functions, the legal officer shall:[74] Social Justice Society v. Hon. Atienza, Jr., supra note 9 at 679.
(i) Represent the local government unit in all civil actions and special proceedings wherein the local government unit or any official thereof, in his official capacity, is a party: Provided, That, in actions or proceedings where a component city or municipality is a party adverse to the provincial government or to another component city or municipality, a special legal officer may be employed to represent the adverse party;
In that case, the Court held:
x x x [The DOE] seeks to intervene in order to represent the interests of the members of the public who stand to suffer if the Pandacan Terminals’ operations are discontinued. x x x Suffice it to say at this point that, for the purpose of hearing all sides and considering the transcendental importance of this case, we will also allow DOE’s intervention. (Emphasis supplied)[75] Santiago v. COMELEC, 336 Phil. 848, 880 (1997) citing Kilosbayan, Inc. v. Guingona, G.R. No. 113375, 5 May 1994, 232 SCRA 110, 134 further citing the landmark Emergency Powers Cases (Araneta v. Dinglasan, 84 Phil. 368 (1949).
[76] Basco v. Phil. Amusements and Gaming Corporation, 274 Phil. 323, 335 (1991) citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Hon. Tan, 246 Phil. 380, 385 (1988).
[77] Association of Small Landowners in the Philippines, Inc. v. Hon. Secretary of Agrarian Reform, 256 Phil. 777, 798 (1989).
[78] Sections 1 to 3, Rule 65 of the Rules of Court, provides:
Section 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any[79] Id.
plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
x x x x
Section 2. Petition for prohibition. — When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.
x x x x
Section 3. Petition for mandamus. — When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.
[80] Resolution dated 13 April 2010 in A.M. No. 09-6-8-SC.
[81] Sec. 2, Part I, Rule I, Rules of Procedure for Environmental Cases.
[82] Id.
[83] Sec. 3, Part I, Rule I, Rules of Procedure for Environmental Cases.
[84] Rollo in G.R. No. 187916, Vol. IV, pp. 2202-2203. Memorandum of Shell citing Ortega v. Quezon City Government, 506 Phil. 373 (2005).
[85] 465 Phil. 529 (2004).
[86] Id. at 541 citing Philnabank Employees Association v. Estanislao, G.R. No. 104209, 16 November 1993, 227 SCRA 804, 811.
[87] Id. at 542 citing Tano v. Hon. Gov. Socrates, 343 Phil. 670, 698 (1997); Macasiano v. National Housing Authority, G.R. No. 107921, 1 July 1993, 224 SCRA 236, 243.
[88] Aquino v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623, 638 citing Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil 307 (2000) and Fortich v. Corona, 352 Phil. 461 (1998).
[89] Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307 (2000); Sen. Jaworski v. Phil. Amusement and Gaming Corp., 464 Phil. 375, 384 (2004).
[90] Sen. Jaworski v. Phil. Amusement and Gaming Corp., 464 Phil. 375, 385 (2004).
[91] Rollo in G.R. No. 187916, Vol. IV, p. 2100. Memorandum of Chevron.
Chevron relied on the ruling in Automotive Industry Workers Alliance v. Hon. Romulo, 489 Phil. 710, 718 (2005) where the Court held:
For a citizen to have standing, he must establish that he has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.[92] Id. at 2222. Memorandum of Shell citing Velarde v. Social Justice Society, G.R. No. 159357, 28 April 2004, 428 SCRA 283 and Kilosbayan, Inc. v. Morato, 320 Phil. 171 (1995)
[93] 522 Phil. 705 (2006).
[94] Id. at 1859 citing Francisco, Jr. v. The House of Representatives, 460 Phil. 830 (2003).
[95] Id. citing Tolentino v. COMELEC, 465 Phil. 385 (2004).
[96] Rollo in G.R. No. 187916, Vol. IV, pp. 1858-1859 citing Francisco v. House of Representatives, 460 Phil. 830 (2003).
[97] Id.; Velarde v. Social Justice Society, G.R. No. 159357, 28 April 2004, 428 SCRA 283.
[98] Id.; Id. at 1863 citing Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA 792.
[99] Social Justice Society v. Mayor Atienza, Jr., supra note 8 at 492-493.
[100] G.R. No. 192088, 9 October 2012, 682 SCRA 602.
[101] Id. at 633-634.
[102] Rollo in G.R. No. 187836, Vol. V, p. 2144-2145. Memorandum of Petron citing Aduan v. Chong, G.R. No. 172796, 13 July 2009, 592 SCRA 508; see also Tañada v. Angara, 338 Phil. 546 (1997); Duero v. Court of Appeals, 424 Phil. 12 (2002); D.M. Consunji v. Esguerra, 328 Phil. 1168 (1996); and Planters Products, Inc. v. Court of Appeals, 271 Phil. 592 (1991) citing Carson v. Judge Pantanosas, Jr., 259 Phil. 628 (1989).
[103] G.R. No. 187167, 16 August 2011, 655 SCRA 476.
[104] Id. at 487-488.
[105] IBP v. Zamora, 392 Phil. 618, 632 (2000) citing Philippine Constitution Association v. Enriquez, G.R. Nos. 113105, 113174, 113766 and 113888, 19 August 1994, 235 SCRA 506 citing Luz Farms v. Secretary of the Department of Agrarian Reform, G.R. No. 86889, 4 December 1990, 192 SCRA 51; Dumlao v. Commission on Elections, 184 Phil. 369 (1980); and People v. Vera, 65 Phil. 56 (1937).
[106] Rollo in G.R. No. 187916, Vol. I, p. 62. Urgent Petition for Prohibition, Mandamus and Certiorari.
[107] Rollo in G.R. No. 187916, Vol. IV, p. 2097.
Sec. 163. Presentation of Community Tax Certificate on Certain Occassions. – (a) When an individiual subject to the community tax acknowledges any document before a notary public, takes the oath of office upon election or appointment to any position in the government service; receives any license, certificate, or permit from any public authority; pays any tax or fee; receives any money from any public fund; transacts other official business; or receives any salary or wage from any person or corporation, it shall be the duty of any person, officer or corporation with whom such transaction is made or business done or from whom any salary or wage is received to reequire such individual to exhibit the community tax certificate. x x x. (Emphasis and underscoring in the Memorandum of Chevron)
[108] Sec. 6. Jurat. - “Jurat” refers to an act in which an individual on a single occasion:
(a) appears in person before the notary public and presents an instrument or document; (b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; (c) signs the instrument or document in the presence of the notary; and (d) takes an oath or affirmation before the notary public as to such instrument or document.
[109] As amended by Resolution dated 19 February 2008 in A.M. No. 02-8-13-SC.
[110] Rollo in G.R. No. 187916, Vol. IV, p. 2216.
[111] 550 Phil. 98 (2007).
[112] Id. at 107.
[113] Id. at 108-110.
[114] Rollo in G.R. No. 156052 (no proper pagination, should be p. 1844). Resolution dated 2 June 2009.
[115] Supra note 110 at 110-111.
[116] Section 458(a)(2)(viii), Local Government Code.
[117] Tuzon v. Court of Appeals, G.R. No. 90107, 21 August 1992, 212 SCRA 739, 747.
[118] Social Justice Society v. Hon. Atienza, Jr. applying Section 458(a)(2)(viii) of the Local Government Code.
[119] Social Justice Society v. Mayor Atienza, Jr., supra note 8 at 493 citing supra note 116.
[120] Social Justice Society v. Hon. Atienza, Jr., supra note 9 at 703.
[121] Id. at 702.
[122] Rollo in G.R. No. 187916, Vol. I, p. 296. Comment of respondents Vice-Mayor Domagoso and the City Councilors who voted in favor of the assailed Ordinance.
[123] Id., Vol. IV, pp. 1852-1857. Memorandum of former Mayor Lim.
Former Mayor Lim narrated that when he received the draft Ordinance for his approval, he did not readily act upon it but took the time to seriously study the pros and cons of enacting the Ordinance; that he issued Executive Order No. 18 creating an ad hoc panel to conduct a study thereon; that the Assistant City Treasurer of Manila submitted to him a list of properties that would be affected by the proposed ordinance and the real property taxes they paid from 2007 to 2009; that he conducted a stakeholders’ consultative meeting composed of some Cabinet Secretaries and other officials, including the Joint Foreign Chamber of Commerce of the Philippines; that Engr. Rodolfo H. Catu (Engr. Catu), Officer in Charge of the City Planning and Development Office, together with the ad hoc panel earlier created, conducted an ocular inspection of the Pandacan Terminal, and submitted a favorable recommendation; that he also sought guidance from His Eminence, Gaudencio Cardinal Rosales; that he received a profile of the safety and security features installed at the Pandacan oil depots from Shell; that he likewise personally conducted an ocular inspection where he was assured by then President Arroyo and her cabinet secretaries, who happened to visit the site on the same day, that they interpose no objection to the proposed ordinance; and that the European Chamber of Commerce expressed support to the ordinance. It was only then that he made a decision to approve the Ordinance.
[124] Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
[125] Social Justice Society v. Hon. Atienza, Jr., supra note 9.
[126] Id. at 704-707.
[127] Rollo in G.R. No. 187916, Vol. IV, pp. 2103-2104. Memorandum of Chevron; rollo in G.R. No. 187836, Vol. V, pp. 2220-2225. Memorandum of Petron.
[128] Id. at 1883. Memorandum of former Mayor Lim.
[129] Id. at 2285-2310. Memorandum of Shell.
[130] Id. at 2112. Memorandum of Chevron. Emphasis supplied.
[131] Id. at 2280. Memorandum of Shell.
[132] Social Justice Society v. Hon. Atienza, Jr., supra note 9 at 702-703.
[133] Social Justice Society v. Mayor Atienza, Jr., supra note 8 at 494.
[134] Social Justice Society v. Hon. Atienza, Jr., supra note 9 at 702-720.
[135] Id. at 720.
[136] Id. at 722-723.
[137] Id. at 721.
[138] Id. at 723.
[139] Rollo in G.R. No. 187916, Vol. V, p. 2496. Compliance/Explanation with Urgent Manifestation of Atty. Gempis, Jr.
[140] Gone v. Atty. Macario Ga, A.C. No. 7771, 6 April 2011, 647 SCRA 243, 250.
[141] Sibulo v. Ilagan, 486 Phil. 197, 204 (2004) citing Canons 1, 7, and 11, Code of Professional Responsibility.
[142] Id.
[143] Id. at 204-205 citing Dr. Gamilla v. Atty. Mariño, Jr., 447 Phil. 419 (2003).
CONCURRING AND DISSENTING OPINION
LEONEN, J.:
The Pandacan oil depots must go, not because Ordinance No. 8187 is unconstitutional, but because of Ordinance No. 8283. Due to its proposed doctrine, I regret that I am unable to bring myself to agree with the well-written ponencia of an esteemed colleague.
The petitions should be dismissed for being moot and academic in view of the manifestations[1] filed by respondents when the Sangguniang Panlungsod of Manila enacted City Ordinance No. 8283 entitled “An Ordinance Amending Section 2 of Ordinance No. 8187 by Reclassifying the Area where Petroleum Refineries and Oil Depots are Located from Heavy Industrial (I-3) to High Intensity Commercial/Mixed Use Zone (C3/MXD).”[2]
Considering that the petitions are now moot and academic, this court should have exercised judicial restraint and refrained from making any determination with regard to the validity of Ordinance No. 8187.
Even assuming that the petition is not yet moot, the petitions in G.R. Nos. 187836 and 187916 should be dismissed on procedural and substantive grounds.
The Sangguniang Panlungsod of Manila has the power to amend or repeal its zoning ordinances. A determination by this court in an earlier petition for mandamus denying challenges to the validity of an earlier ordinance on constitutional grounds does not necessarily render such ordinance as irrepealable. That earlier ordinance may still be repealed should the local government decide to change its policy. In fact, the local government has changed its policy by enacting Ordinance No. 8283, which amends Section 2 of Ordinance No. 8187.
Ordinance No. 8187 is entitled to a presumption of constitutionality. This presumption cannot be discharged with petitioners’ broad factual allegations properly challenged by respondents. This special civil action is not the proper forum to determine questions of fact.
The spectre of terrorism and the dangers of ecological destruction are easy to foist. But our fears should not be given such privilege so as to numb us to the possibility that the facts may not be as petitioners present them. The reality is that the ordinance now in question is the product of the political will of the citizens of Manila exercised through their duly elected representatives.
The Constitution entrusts us with the power of judicial review. We do not have the power to veto an ordinance.
There are other remedies available to petitioners more adequate for their purposes. The fields of environment and health law have progressed to allow the proper causes of action to be laid in the proper forum. Proper evidence needs to be received before we conclude with finality at the level of this court that businesses of private respondents actually destroy the environment and that they do so with impunity. The precautionary principle certainly does not sanction a suspension of judicial rules with respect to evidence, reason, and legal interpretation.
The Pandacan terminal is located by the banks of the Pasig River.[3] It was constructed in 1914 and serves as the main artery for the storage and distribution of fuel to Metro Manila and the rest of Luzon.[4] It is linked to a permanent underground pipeline[5] that connects it to Pilipinas Shell Petroleum Corporation’s (Shell) refinery in Tabangao and Chevron’s finished products import terminal in San Pascual, both in the province of Batangas.[6]
Apart from the use of a pipeline, the location of the Pandacan terminal enables the delivery of fuel through barges. This is the mode of transportation utilized by Petron since its refinery is located in Limay, Bataan. When the terminal is located elsewhere, delivery of fuel may have to contend with traffic and other challenges.[7]
The Pandacan terminal is the focal point of this country’s fuel supply system. It provides 95% of the fuel supply in Metro Manila, 70% of the country’s shipping needs, 90% of the country’s demand for lubricants, and 75% of the country’s need for aviation fuel.[8]
The importance of the Pandacan terminal is also felt in the business sector because it provides livelihood to more than 3,000 retail stations in Regions I to IV and the National Capital Region.[9]
During the 1970s, the Philippines experienced fuel shortages. The shortage peaked in 1974, reaching a point where the country was almost paralyzed. Long queues at fuel stations were seen and, most of the time, the fuel stations ran out of fuel.[10]
Fortunately, the national government anticipated the fuel shortage. Republic Act No. 6173[11] was passed in 1971, creating the Oil Industry Commission. The Oil Industry Commission was mandated to perform the following:
SEC. 3. Declaration of Policy and Purposes. - . . . .In 1977, the Oil Industry Commission was replaced by the Department of Energy.[12] This department was created to make certain that there is an adequate supply of energy for the country.[13] Additional functions were granted to the Department of Energy upon the passage of Republic Act No. 8479.[14]
(a) To assure that the country shall have a proper adequate and continuous supply of crude oil and refined petroleum products under the most economic and competitive terms possible considering all available sources of supply;
(b) To assure that the petroleum industry, as a business vital to the national interest, operates under conditions of orderly and economic competition;
(c) To assure the public of reasonable prices for petroleum products considering the international price levels of crude oil and petroleum products and after allowing for proper and reasonable cost of importing, shipping, transporting, processing, refining, storing, distributing, marketing, and selling crude oil and petroleum products in the Philippines, and for a fair and reasonable return; and to prevent collusive practices in the industry, particularly as to prices[.]
On October 12, 2001, the Department of Energy entered into a memorandum of agreement with Chevron, Shell, and Petron to address the safety concerns brought about by the September 11, 2001 terrorist attacks in the United States. The parties agreed to conduct a study regarding the feasibility of relocating the Pandacan terminal.[15]
On November 20, 2001, the Sangguniang Panlungsod of Manila enacted Ordinance No. 8027.[16] Ordinance No. 8027, which took effect on December 28, 2001,[17] reclassified the area where the Pandacan terminal is located from Industrial II to Commercial I.[18]
Foreseeing that the effect of Ordinance No. 8027 could lead to a fuel shortage, then Manila Mayor Jose L. Atienza, Jr. (petitioner in G.R. No. 187916), Chevron, Shell, Petron, and then Department of Energy Secretary Vincent S. Perez, Jr., conducted dialogues.[19] On June 26, 2002, the City of Manila, the Department of Energy, Chevron, Shell, and Petron executed a memorandum of understanding (MOU) where the parties agreed to scale down the operations in the Pandacan terminal by decommissioning storage tanks and constructing buffer zones around the Pandacan terminal.[20]
The Sangguniang Panlungsod of Manila ratified the MOU in Resolution No. 97, Series of 2002. The MOU would be valid from July 25, 2002 until December 31, 2002. Business permits valid until December 31, 2002 were issued to Shell, Chevron, and Petron. Resolution No. 13, Series of 2003, extended the MOU’s validity until April 30, 2003. Again, business permits were issued with the same validity period as the MOU.[21]
Meanwhile, Social Justice Society (SJS) filed a petition for mandamus before this court on December 4, 2002. They prayed for the issuance of the writ of mandamus to compel Mayor Jose L. Atienza (Mayor Atienza) to enforce Ordinance No. 8027. This was docketed as G.R. No. 156052.[22]
Toward the end of the MOU’s validity in April 2003, Mayor Atienza refused to issue new business permits to Shell, Chevron, and Petron. This prompted Chevron to file a complaint before the Regional Trial Court of Manila for injunction, annulment of Manila City Ordinance No. 8027, specific performance and damages, with application for a temporary restraining order and writ of preliminary prohibitory and mandatory injunction. This case was filed on April 25, 2003 and docketed as Civil Case No. 03-106377.[23]
On the same day, Shell filed a petition for prohibition and mandamus with application for a temporary restraining order and writs of preliminary injunction and preliminary mandatory injunction. It assailed the validity of Ordinance No. 8027 and prayed for the enforcement of the MOU. This case was docketed as Civil Case No. 03-106380.[24]
The cases filed by Chevron and Shell were consolidated and raffled to Branch 39 of the Regional Trial Court of Manila. The trial court granted applications for the writs of preliminary mandatory injunction and preliminary prohibitory injunction.[25]
Petron later filed a petition assailing the validity of Ordinance No. 8027 and alleging violations of the Department of Energy law, deregulation law, the memorandum of agreement dated October 12, 2001, and the MOU dated June 28, 2002.[26]
On June 16, 2006, then Manila Mayor Atienza approved Ordinance No. 8119, also known as the Manila Comprehensive Land Use Plan and Zoning Regulations of 2006.[27] Ordinance No. 8119 reclassified the Pandacan terminal area from Industrial II to High Density Residential/Mixed Use Zone.[28]
The enactment of Ordinance No. 8119 triggered the filing of another complaint by Shell and Chevron before the Regional Trial Court of Manila. They filed a complaint for injunction and nullification of Ordinance No. 8119 with application for a writ of preliminary injunction, praying that Ordinance No. 8119 be declared unconstitutional. This was docketed as Civil Case No. 06-115334.[29]
Petron filed a motion to intervene in Civil Case No. 06-115334 but was denied. Hence, Petron filed its own complaint docketed as Civil Case No. 07-116700. A temporary restraining order was issued in favor of Petron, enjoining the enforcement of Ordinance No. 8119.[30]
On March 7, 2007, this court, through the First Division, granted the petition filed by SJS and directed that the mayor of the City of Manila immediately enforce Ordinance No. 8027.[31] Shell, Chevron, and Petron filed motions for leave to intervene and motions for reconsideration in intervention. They argued that there were legal impediments to the enforcement of Ordinance No. 8027 because of the cases they filed before the lower courts. On February 13, 2008, the First Division, through Chief Justice Corona, granted the motions to intervene, but denied the motions for reconsideration. The First Division also ordered the dismissal of Civil Case Nos. 03-106377 and 03-106380.[32]
Shell, Chevron, and Petron filed another motion for reconsideration on February 28, 2008.[33] This was denied with finality on April 28, 2009 in an En Banc resolution[34] on the ground that it was a second motion for reconsideration, a prohibited pleading under Rule 52, Section 2 of the Rules of Court.[35]
On May 28, 2009, then Manila Mayor Alfredo S. Lim (Mayor Lim) signed Ordinance No. 8187, “An Ordinance Amending City Ordinance No. 8119 Otherwise Known as ‘The Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006’ By Creating a Medium Industrial Zone (1-2) and Heavy Industrial Zone (1-3) and Providing for its Enforcement.”[36]
In essence, Ordinance No. 8187, a zoning ordinance, allows the continued stay of the oil depots in the Pandacan area. Ordinance No. 8187 also repeals the relevant portions of Ordinance No. 8027.
Petitioner SJS went directly to this court and filed a petition[37] for prohibition on June 1, 2009. This was docketed as G.R. No. 187836. Petitioners Mayor Atienza and the other parties followed suit on June 5, 2009 and filed a petition for prohibition, mandamus, and certiorari with application for an injunction and temporary restraining order.[38] This was docketed as G.R. No. 187916. These petitions were consolidated by this court.
The issues in this case are the following:
(a) Procedural issue: Whether petitioners in G.R. No. 187836 and G.R. No. 187916 have standing to file this case
(b) Substantive issue: Whether Ordinance No. 8187, otherwise known as “An Ordinance Amending Ordinance No. 8119, Otherwise Known as ‘The Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006’ By Creating a Medium Industrial Zone (I-2) and Heavy Industrial Zone (I-3), and Providing for Its Enforcement,” is valid and constitutional
(b) Substantive issue: Whether Ordinance No. 8187, otherwise known as “An Ordinance Amending Ordinance No. 8119, Otherwise Known as ‘The Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006’ By Creating a Medium Industrial Zone (I-2) and Heavy Industrial Zone (I-3), and Providing for Its Enforcement,” is valid and constitutional
This dissent will focus on the substantive issue first.
The presumption of constitutionality
All laws, including ordinances, enjoy the presumption of constitutionality.[39] The reason behind this presumption has been discussed by this court as follows:
This strong predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch – the legislature.[40]Ermita-Malate Hotel and Motel Operators Association v. City of Manila[41] explains the reasons behind the presumption of validity of ordinances:
As was expressed categorically by Justice Malcolm: “The presumption is all in favor of validity. . . . The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well being of the people. . . . 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.[42]In order to overcome this presumption of constitutionality, petitioners must be able to prove beyond any doubt how the challenged statute violates the Constitution.[43] Hypothetical arguments will not suffice.
The Sangguniang Panlungsod of Manila and other local government units have the statutory power to enact zoning ordinances. Thus, Republic Act No. 7160 or the Local Government Code of 1991 grants the following powers to the Sangguniang Panlungsod of Manila:
SECTION 458. Powers, Duties, Functions and Compensation. – (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:The Revised Charter of the City of Manila or Republic Act No. 409 also provides:[44]
. . . .
(2) Generate and maximize the use of resources and revenues for the development plans, program objectives and priorities of the city as provided for under Section 18 of this Code, with particular attention to agro-industrial development and city-wide growth and progress, and relative thereto, shall:
. . . .
With regard to the seeming overlap between Republic Act No. 7160 and Republic Act No. 409, this court, in City of Manila v. Hon. Laguio, Jr.,[45] held that:ARTICLE III.—The Municipal Board . . . .
SEC. 18. Legislative powers. — The Municipal Board shall have the following legislative powers:
. . . .
(kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers and duties conferred by this chapter; and to fix penalties for the violation of ordinances which shall not exceed to two hundred pesos fine or six months’ imprisonment, or both such fine and imprisonment, for a single offense.
The rule is that the City Council has only such powers as are expressly granted to it and those which are necessarily implied or incidental to the exercise thereof. By reason of its limited powers and the nature thereof, said powers are to be construed strictissimi juris and any doubt or ambiguity arising out of the terms used in granting said powers must be construed against the City Council.For purposes of this case, there appears to be no repugnance between Republic Act No. 7160 and Republic Act No. 409. Both provide for the statutory basis for the conclusion that the Sangguniang Panlungsod of Manila was well within its powers when it enacted Ordinance No. 8187. This ordinance was also enacted in accordance with the process for enacting zoning guidelines.
. . . .
On the second point, it suffices to say that the Code being a later expression of the legislative will must necessarily prevail and override the earlier law, the Revised Charter of Manila. Legis posteriores priores contrarias abrogant, or later statute repeals prior ones which are repugnant thereto. As between two laws on the same subject matter, which are irreconcilably inconsistent, that which is passed later prevails, since it is the latest expression of legislative will. If there is an inconsistency or repugnance between two statutes, both relating to the same subject matter, which cannot be removed by any fair and reasonable method of interpretation, it is the latest expression of the legislative will which must prevail and override the earlier.
. . . .
In addition, Section 534(f) of the Code states that “All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly.” Thus, submitting to petitioners’ interpretation that the Revised Charter of Manila empowers the City Council to prohibit motels, that portion of the Charter stating such must be considered repealed by the Code as it is at variance with the latter’s provisions granting the City Council mere regulatory powers.[46]
The Local Government Code does not provide for a special procedure with regard to the passage of a zoning ordinance. However, Republic Act No. 7924[47] provides that:
SEC. 3. Scope of MMDA Services. — Metro-wide services under the jurisdiction of the MMDA are those services which have metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual local government units (LGUs) comprising Metropolitan Manila. These services shall include:Rule V, Section 15 of the implementing rules and regulations of Republic Act No. 7924[48] provides:
. . . .
Sec. 15 Linkage with HUDCC, HLURB, NHA, LGUs and Other National Government Agencies Concerned on Urban Renewal, Zoning and Land Use Planning and Shelter Services - Within the context of the National Housing and Urban Development Framework, and pursuant to the national standards, guidelines and regulations formulated by the Housing and Land Use Regulatory Board [HLURB] on land use planning and zoning, the Authority shall prepare a metropolitan physical framework plan and regulations which shall complement and translate the socio-economic development plan for Metro Manila into physical or spatial terms, and provide the basis for the preparation, review, integration and implementation of local land use plans and zoning ordinances of cities and municipalities in the area.OP Executive Order No. 72[49] then provides:
Said framework plan and regulations shall contain, among others, planning and zoning policies and procedures that shall be observed by local government units in the preparation of their plans and ordinances pursuant to Sections 447 and 458 of RA 7160, as well as the identification of sites and projects that are considered to be of national or metropolitan significance.
Cities and municipalities shall prepare their respective land use plans and zoning ordinances and submit the same for review and integration by the Authority and indorsement to HLURB in accordance with Executive Order No. 72 and other pertinent laws.
In the preparation of a Metropolitan Manila physical framework plan and regulations, the Authority shall coordinate with the Housing and Urban Development Coordinating Council, HLURB, the National Housing Authority, Intramuros Administration, and all other agencies of the national government which are concerned with land use and zoning, urban renewal and shelter services. (Emphasis supplied)
SECTION 1. Plan formulation or Updating - (a) Cities and municipalities shall continue to formulate or update their respective comprehensive land use plans, in conformity with the land use planning and zoning standards and guidelines prescribed by the HLRB pursuant to national policies.None of the petitioners question whether Ordinance No. 8187 followed these requirements.
. . . .
The comprehensive land use plan prepared by the CDC/MDC shall be submitted to the sangguniang panlungsod or sangguniang bayan, as the case may be, for enactment into a zoning ordinance. Such ordinance shall be enacted and approved in accordance with Articles 107 and 108 of the Implementing Rules and Regulations (IRR) of the LGC.
. . . .
c. Cities and municipalities of Metropolitan Manila shall continue to formulate or update their respective comprehensive land use plans, in accordance with the land use planning and zoning standards and guidelines prescribed by the HLRB pursuant to EO 392, s. of 1990, and other pertinent national policies.
Instead, petitioner Mayor Atienza argues that the passage of Ordinance No. 8187 was in violation of the procedure stated in Ordinance No. 8119, specifically:
Sec. 81. Amendments to the Zoning Ordinance. – The proposed amendments to the Zoning Ordinance as reviewed and evaluated by the City Planning and Development Office (CPDO) shall be submitted to the City Council for approval of the majority of the Sangguniang Panglungsod members. The amendments shall be acceptable and eventually approved; PROVIDED, That there is sufficient evidence and justification for such proposal; PROVIDED, FURTHER, That such proposal is consistent with the development goals, planning objectives and strategies of the Manila Comprehensive Land Use Plan. Said amendments shall take effect immediately upon approval or after thirty (30) days from application.[50]Respondent Mayor Lim points out that Section 81 of Ordinance No. 8119 is better understood if taken together with Section 80, which states:
Sec. 80. Procedure for Re-Zoning. – Any association or group of persons who wishes to prepare a re-zoning of a certain area, may file a petition with the Manila Zoning Board of Adjustments and Appeals (MZBAA) for initial evaluation.Respondent Mayor Lim points out that the procedure provided under Sections 80 and 81 of Ordinance No. 8119 is not a condition precedent for the enactment of Ordinance No. 8187. He reasons that it would be absurd for the Sangguniang Panlungsod of Manila to submit its re-zoning plans to the Manila Zoning Board of Adjustments and Appeals or MZBAA for review, after which the review would be subject to the approval by the Sangguniang Panlungsod of Manila.[52]
The MZBAA shall then endorse the proposal together with its preliminary findings to the City Planning & Development Office (CPDO) for further evaluation. Whenever necessary, site inspection of the vicinity subject to rezoning shall be made, the CPDO shall then recommend for approval the re-zoning of the subject area to the City Council.[51]
We agree with respondent Mayor Lim. Furthermore, none of the petitioners presented clear basis to conclude that Ordinance No. 8187 violated any of the provisos in Section 81.
No clear basis and
compelling reasons
This court must be presented with clear basis and compelling reasons so as to overcome the presumption of statutory validity and constitutionality. We explained in Smart Communications, Inc. v. Municipality of Malvar, Batangas[53] that:
To justify the nullification of the law or its implementation, there must be a clear and unequivocal, not a doubtful, breach of the Constitution. In case of doubt in the sufficiency of proof establishing unconstitutionality, the Court must sustain legislation because “to invalidate [a law] based on . . . baseless supposition is an affront to the wisdom not only of the legislature that passed it but also of the executive which approved it.” This presumption of constitutionality can be overcome only by the clearest showing that there was indeed an infraction of the Constitution, and only when such a conclusion is reached by the required majority may the Court pronounce, in the discharge of the duty it cannot escape, that the challenged act must be struck down.[54]In Hon. Fernando v. St. Scholastica’s College,[55] we reiterated the test to determine the validity of an ordinance:
The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable.[56](Citation omitted)The reason for the first requirement — that an ordinance should not contravene the Constitution or any statute — was explained in City of Manila v. Hon. Laguio[57] as follows:
Anent the first criterion, ordinances shall only be valid when they are not contrary to the Constitution and to the laws. The Ordinance must satisfy two requirements: it must pass muster under the test of constitutionality and the test of consistency with the prevailing laws. That ordinances should be constitutional uphold the principle of the supremacy of the Constitution. The requirement that the enactment must not violate existing law gives stress to the precept that local government units are able to legislate only by virtue of their derivative legislative power, a delegation of legislative power from the national legislature. The delegate cannot be superior to the principal or exercise powers higher than those of the latter.[58] (Citations omitted)In relation to the constitutional requirement of due process, we further clarified that:
To successfully invoke the exercise of police power as the rationale for the enactment of an ordinance and to free it from the imputation of constitutional infirmity, two tests have been used by the Court – the rational relationship test and the strict scrutiny test:We then recalled the rational relationship test in this manner:
We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges. Using the rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental interest. Under intermediate review, governmental interest is extensively examined and the availability of less restrictive measures is considered. Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest.[59] (Citation omitted)
As with the State, local governments may be considered as having properly exercised their police power only if the following requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require its exercise and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. In short, there must be a concurrence of a lawful subject and lawful method.[60] (Citation omitted)In White Light Corporation v. City of Manila,[61] this court clarified that heightened or immediate scrutiny is used “for evaluating classifications based on gender and legitimacy.”[62] This standard is still sparingly used in substantive due process cases.
Unfortunately, the ponencia does not use these standards but instead anchors its conclusion on the existence of the prior case of Social Justice Society (SJS), et al. v. Hon. Atienza, Jr. or G.R. No. 156052. Thus:
It bears to stress that the present petitions were initially filed, not to secure a judgment adverse to the first decision, but, precisely, to enforce the earlier ruling to relocate the oil depots from the Pandacan area.On the contrary, the pleadings show that the factual milieu may have changed. Furthermore, Ordinance No. 8027 cannot be an irrepealable ordinance. Its repeal cannot be a basis for illegality or unconstitutionality.
. . . .
The fact remains, however, that notwithstanding that the conditions with respect to the operations of the oil depots existing prior to the enactment of Ordinance No 8027 do not substantially differ to this day, as would later be discussed, the position of the Sangguniang Panlungsod on the matter has thrice changed, largely depending on the new composition of the council and/or political affiliations. The foregoing, thus, shows that its determination of the “general welfare” of the city does not after all gear towards the protection of the people in its true sense and meaning, but is, one way or another, dependent on the personal preference of the members who sit in the council as to which particular sector among its constituents it wishes to favor.
Now that the City of Manila, through the mayor and the city councilors, has changed its view on the matter, favoring the city’s economic-related benefits, through the continued stay of the oil terminals, over the protection of the very lives and safety of its constituents, it is imperative for this Court to make a final determination on the basis of the facts on the table as to which specific right of the inhabitants of Manila should prevail. For, in this present controversy, history reveals that there is truly no such thing as “the will of Manila” insofar as the general welfare of the people is concerned.[63]
Unresolved questions of fact
defeat a challenge to the legal or constitutional
validity of an ordinance
Petitioners make the following factual assertions:
First: Oil depots are inherently risky and pose a threat to the security of its surrounding community.[64]
Second: There is the confirmed presence of Jemaah Islamiyah in the country.[65] If the Philippines is not a target of terrorist attacks, then why did Congress pass Republic Act No. 9372, also known as the Human Security Act of 2007?[66]
Third: Ordinance No. 8187 allows the entry of pollutive and hazardous industries in Manila. This violates Article II, Sections 15 and 16 of the 1987 Constitution. It also violates Presidential Decree No. 1151, also known as the Philippine Environmental Policy.[67]
Fourth: The enactment of Ordinance No. 8187 was in bad faith because it was passed and signed into law a month after the denial with finality of the motion for reconsideration in G.R. No. 156052.[68]
SJS attached a committee report[69] to its memorandum, to convince this court why its petition for prohibition should be granted. However, that committee report pertains to Ordinance No. 8027. It is irrelevant. The circumstances that led to the enactment of Ordinance No. 8027 are different from more contemporary considerations that led respondents to the promulgation of Ordinance No. 8187. Contrary to the stance of petitioners, we cannot presume that the world always remains at status quo, that it is static, and it does not change.
In the ponencia:
The fact remains, however, that notwithstanding that the conditions with respect to the operations of the oil depots existing prior to the enactment of Ordinance No. 8027 do not substantially differ to this day, as would later be discussed, the position of the Sangguniang Panlungsod on the matter has thrice changed, largely depending on the new composition of the council and/or political affiliations. The foregoing, thus, shows that its determination of the “general welfare” of the city does not after all gear towards the protection of the people in its true sense and meaning, but is, one way or another, dependent on the personal preference of the members who sit in the council as to which particular sector among its constituents it wishes to favor.[70] (Emphasis and underscoring supplied)Intervenor Chevron points out that out of the 52 storage tanks in the Pandacan terminal, 26 tanks have been decommissioned.[71] Buffer zones and green parks now exist in order to protect both the terminal and the nearby residential area.[72]
Intervenor Shell manifests that its area in the Pandacan terminal will eventually become a mere distribution point. At present, it is in the process of transferring its fuel to the Shell terminals in Batangas, Bataan, La Union, and Muntinlupa.[73] As for its supply of aviation fuel, it will be delivered directly to the Ninoy Aquino International Airport.[74] Petron’s transfer and Shell’s reduction of their operations in Pandacan will reduce the terminal’s environmental footprint by more than 50%.[75]
Even the ponencia recognizes that the conditions have changed when it stated that:
1. Chevron claims that it, together with Shell and Petron, continue to enhance the safety and security features of the terminals. They likewise adopt fire and product spill prevention measures in accordance with the local standards set by the Bureau of Fire Protection, among others, and with the international standards of the American Petroleum Industry (“API”) and the National Fire Prevention and Safety Association (“NFPSA”); that since 1914, the oil depots have not experienced “any incident beyond the ordinary risks and expectations” of the residents of Manila; and that it received a passing grade on the safety measures they installed in the facilities from the representatives of the City of Manila who conducted an ocular inspection on 22 May 2009; andWith regard to highly flammable substances, Shell manifested that liquefied petroleum gas (LPG) is no longer stored in the Pandacan terminal. Among the fuel products, only LPG can cause an explosion. Diesel, fuel oil, and lubricating engine oil will not explode even if a lit match or anything with fire is thrown at any of these fuel products because these products do not easily vaporize and require more energy to burn. For gasoline, kerosene, and jet fuel, Shell also utilizes special containers to prevent explosions. All of these products are stored below their flashpoint temperature.[77]
. . . .
. . . . Shell’s portion of the oil depot is likewise allegedly equipped with the latest technology to ensure air-quality control and water-quality control, and to prevent and cope with possible oil spills with a crisis management plan in place in the event that an oil spill occurs. Finally, Shell claims that the recommendations of EQE International in its Quantitative Risk Assessment (QRA) study, which it says is one of the leading independent risk assessment providers in the world and largest risk management consultancy, were sufficiently complied with; and that, on its own initiative, adopted additional measures for the purpose, for which reason, “the individual risk level resulting from any incident occurring from the Pandacan Terminal, per the QRA study, is twenty (20) times lower compared to the individual risk level of an average working or domestic environment.”
. . . .
The steps taken by the oil companies, therefore, remain insufficient to convince the Court that the dangers posed by the presence of the terminals in a thickly populated area have already been completely removed.[76] (Emphasis in the original)
With respect to terrorist organizations such as Jemaah Islamiyah being in this country, intervenor Petron rebuts by stating that it is extremely difficult to ascertain the objectives of terrorists.[78] Further, a survey of terrorist attacks from 2003 to 2009 reveals that the following areas have been the targets:
48 buses and trainsAn oil terminal in Yemen was the target of a terrorist attack, but it was foiled and the small fire in a gas tank, caused by shrapnel from an explosion, was easily extinguished.[80] Based on this data, Petron makes the assumption that oil refineries and oil depots may have the same degree of risk as any other business establishment when it comes to terrorist attacks.[81]
31 marketplaces
28 churches and mosques
13 police stations
20 restaurants and cafes
18 hotels[79]
Shell alleged that safety measures are in place in the Pandacan terminal. The terminal employs around 300 security personnel, working round the clock in three shifts. Checkpoints and security outposts are located at the entrance and exits of the terminal. The area is equipped with closed circuit television cameras, capable of zooming and panning to get a bird’s eye view of all activities inside the terminal and its surrounding areas.[82]
In addition, the Pandacan terminal is in close proximity to Malacañang Palace. It is included in the “no-fly zone”. Any aircraft flying near the area can be “neutralized” by Malacañang Palace’s anti-aircraft gun batteries.[83]
With regard to the argument that Ordinance No. 8187 allows the entry of pollutive and hazardous industries in the City of Manila, Shell points out that Ordinance No. 8187 simply followed the classifications provided in the Housing and Land Use Regulatory Board Model Zoning Ordinance.[84] It does not necessarily mean that they are actually pollutive or hazardous. Thus, intervenor Shell states:
It bears noting that while petroleum refineries and oil depots are classified as “highly pollutive/extremely hazardous” industries, they are nonetheless allowable classifications even under the Model Zoning Ordinance. To reiterate, contrary to petitioners’ simplistic and misleading argument, such classification does not mean that highly essential industries which are classified as “highly pollutive/extremely hazardous” have a license to cause pollution. It only recognizes that these industries have the possibility to cause pollution if no environmental safeguards and/or standards are in place.[85]Under Ordinance 8187, medium industrial zones would allow the operation of “pollutive/hazardous industries” while heavy industrial zones would allow the operation of “highly pollutive/non-hazardous industries”; “highly pollutive/hazardous industries”; “highly pollutive/extremely hazardous industries”; “pollutive/extremely hazardous industries”; and “non-pollutive/extremely hazardous industries.”[86] However, these are mere classifications that should not, in any way, lead to the conclusion that the industries classified under any of these categories are automatically polluters.
The arguments raised by petitioners are hypothetical. No convincing evidence was presented to show why oil depots are inherently risky or why oil depots are targets of terrorist attacks. The examples of fire incidents in other fuel facilities located in Puerto Rico and India[87] are insufficient to give us a scientific basis for concluding that the risks of simply having an oil depot are unmanageably high. The examples do not relate to the number of oil depots that have operated continuously without any safety problems.
To decide a controversy on the basis of hypothetical facts would have the effect of barring litigation between real parties with real causes of action.[88]
The earlier case of
Social Justice Society (SJS), et al. v. Hon. Atienza, Jr.,
G.R. No. 156052
Although dealing with a different ordinance with a different treatment of the Pandacan oil depots, the earlier doctrinal pronouncements in Social Justice Society (SJS) et al. v. Hon. Atienza, Jr.[89] or G.R. No. 156052 support this dissent.
This earlier case was a petition for mandamus filed directly before this court. It sought to compel the mayor of the City of Manila to enforce Ordinance No. 8027.
With the petition being an original one, it is wrong to conclude that this court made definitive factual findings that are binding in this case when it granted the writ of mandamus against respondent Mayor Lim. The petition was granted on the ground that since the validity of the memorandum of understanding executed between Chevron, Shell, Petron, and the City of Manila had expired, there was no more hindrance to the enforcement of Ordinance No. 8027.[90]
After the decision had been promulgated, motions for leave to intervene and motions for reconsideration were filed. In a resolution, this court granted the motions for leave to intervene but denied the motions for reconsideration.[91]
In denying the motion for reconsideration, this court ruled that Ordinance No. 8027 was not unconstitutional based on the challenge raised by Chevron, Shell, and Petron.[92] This court did not make the pronouncement that the ordinance cannot be repealed. This court certainly did not even make definitive findings of fact that would have prevented the Sangguniang Panlungsod of Manila to change its policy. In this case, it appears that the Sangguniang Panlungsod of Manila reconsidered its interpretation of the factual basis of the earlier ordinance, examined the viability of its policy in relation to the interests of its constituents, and passed Ordinance No. 8187. It is also clear that there were changes in the elected representatives of the City of Manila.
Social Justice Society (SJS), et al. v. Hon. Atienza, Jr. has the authority to hold that Ordinance No. 8027 was enacted in the exercise of police power.[93] It did not discriminate against the Pandacan terminal and the oil depots found therein.[94] Neither did the ordinance contravene Republic Act No. 7638[95] and Republic Act No. 8479.[96]Further, Ordinance No. 8027 does not prohibit the oil businesses from conducting their business in Manila, but they are no longer allowed to have an oil depot in the Pandacan terminal.[97]
This court denied the second motion for reconsideration for being a prohibited pleading.
No res judicata
Certainly, Social Justice Society (SJS) et al. v. Hon. Atienza, Jr. is not res judicata insofar as the present original petition is concerned.
The procedural vehicle is no longer mandamus in this case. Petitioner SJS filed a petition for prohibition. Petitioner Mayor Atienza now files a petition for prohibition, mandamus and certiorari. The earlier case sought to enforce an ordinance. SJS, in this case, seeks to enjoin the enforcement of an ordinance because:
[T]he same is illegal and unconstitutional, thus, without force and effect. Further, it is a circumvention of this Honorable Court’s decision on [sic] GR 156052 which mandates the enforcement of Ordinance No. 8027 by the mayor of the City of Manila which effectively removes the Pandacan oil depot.[98]Clearly, the decision in Social Justice Society (SJS), et al. v. Hon. Atienza, Jr. dealt with Ordinance No. 8027. This petition now deals with Ordinance No. 8187. The subject matter and the issues are totally different.
No allegation and clear basis
for a finding that a law was violated in
enacting the ordinance
The petition filed by petitioner SJS in this case and its memorandum are extraordinary in that these are bereft of any substantial argument that clearly shows that Ordinance No. 8187 violates any law. The closest mention of any law is Section 458 of the Local Government Code of 1991 that grants the Sangguniang Panlungsod of Manila the power to enact ordinances for the general welfare.
Petitioner SJS recommends that we rule that:
“General welfare” means the enjoyment of health and the common blessings of life, and this could onlybe achieved if there would be [a] guarantee against risk in health and the common blessings of life of the people.[99] (Emphasis and underscoring supplied)Explaining its argument that general welfare can only be present if there is absolutely no risk to health, petitioner SJS continues to cite Villanueva v. Castañeda,[100] where this court held that a talipapa (small public market) can endanger public health and public safety.[101] Thus, in the sole view of petitioner SJS:
If this Honorable Court could consider a talipapa to be hazardous to public health and safety, there is more reason for this Honorable Court to consider the Pandacan oil depot to be hazardous to the community surrounding it. The comparison may not be apple to apple and orange to orange but the logic and common sense behind this comparison is to point out the far greater danger that an oil depot may bring compared to that of a talipapa. The detrimental impact of the mere presence of the oil depot in the Pandacan community outweighs the beneficial impact that it gives, if it has any.[102]Such arguments are superficially seducing but dangerous because these ask that legal decisions be the outcome of homespun fear rather than based on more critical analysis.
The fallacy of the argument of petitioner SJS is obvious.
To begin with, not all talipapa are hazardous to public health and safety. In the case cited by petitioner SJS, the talipapa was “in the vicinity of the public market of San Fernando, Pampanga, along Mercado Street, a strip of land measuring 12 by 77 meters on which stands a conglomeration of vendors stalls.”[103] The vendors wanted to assert their right to remain in the area due to a previous authorization by the municipal government. The municipal government denied this right, insisting on the demolition of their structures because they were illegal constructions on public property. In deciding to uphold the municipal government, this court noted that the occupants proliferated under filthy conditions that added to the basis of the municipal government to assert its powers over the public space.[104] That case certainly did not denigrate all talipapa. Its reiteration of the findings of the municipal government certainly only applied to that specific set of vendor stalls.
Not all talipapa are the same. Not all are hazardous to public health and safety. It depends on the condition of the talipapa. These conditions can be found only upon the presentation of evidence in the proper judicial forum. Only after the presentation of evidence can the degree of risk and hazard be assessed in relation to the standards contained in law and corresponding regulations. Only after all these can courts rule whether to remove or demolish a talipapa.
The same considerations apply to oil depots. In this case, upon reassessing the facts and weighing the risks in relation to the necessity of the Pandacan oil depot, the Sangguniang Panlungsod of Manila found it proper to reverse its policy through a validly issued ordinance. Except for superficial arguments based on fallacies masquerading as common sense, petitioners here do not present us with facts that can be taken judicial notice of. Rather, petitioners present to us the same city council report that was submitted for the passage of Ordinance No. 8027, and not the report that served as basis for Ordinance No. 8187, which is the subject of this case.
The failure to discharge the burden of clearly showing the illegality of the ordinance is enough to dismiss the petition. However, the static view of the world presented by petitioners merits further attention.
The challenges and controversies surrounding the passage of the various ordinances relating to the Pandacan oil depot certainly also impel the corporations and the local government officials to install measures to further assure its public. We cannot accept the implied assumption of the petitioners that nothing in relation to the Pandacan oil depot has changed since this court’s decision and resolution in the earlier case of Social Justice Society (SJS), et al. v. Hon. Atienza, Jr.[105]
For instance, the ponencia in Social Justice Society (SJS), et al. v. Hon. Atienza, Jr. (2008 resolution) pointed out that:
The ordinance [Ordinance No. 8027] was intended to safeguard the rights to life, security and safety of all the inhabitants of Manila and not just of a particular class. The depot is perceived, rightly or wrongly, as a representation of western interests which means that it is a terrorist target. As long as there is such a target in their midst, the residents of Manila are not safe. It therefore became necessary to remove these terminals to dissipate the threat. According to respondent:In this petition, SJS repeats the same argument with the same certainty that the Pandacan terminal is a target of terrorist attacks because it represents Western interest in the Philippines. In its memorandum, SJS randomly listed acts of terrorism in the Philippines and in Asia. In its own enumeration, bombs attributed to terrorists exploded: in cars near the official residence of ambassadors, on a packed parking deck beneath a stock exchange building, inside a luggage, outside a bar, in a bus terminal, in an embassy, in hotels, and inside a light rail transit coach.[107]
Such a public need became apparent after the 9/11 incident which showed that what was perceived to be impossible to happen, to the most powerful country in the world at that, is actually possible. The destruction of property and the loss of thousand of lives on that fateful day became the impetus for a public need. In the aftermath of the 9/11 tragedy, the threats of terrorism continued [such] that it became imperative for governments to take measures to combat their effects.[106]
In the Philippines, terrorists have targeted government buildings, public utility buses, fastfood outlet, beach resort, markets, and churches.[108] At the international level, terrorists have chosen trains, churches, mosques and other places where the faithful gather, police stations, hotels, embassies, and markets.[109] Not once has an oil depot been attacked.
“Western interests,” if such concept can be accepted despite its obvious ambiguity and potential to encompass much of modern life, are simply too omnipresent. To accept SJS’ theory would mean that it would be illegal and unconstitutional not to close down or isolate cars, residences of ambassadors, parking buildings, lounges, bars, restaurants, bus terminals, embassy buildings, hotels, and light rail transit coaches.
The panic does not end there. SJS expands even further to almost everything. Thus:
All of us should not forget the so-called Rizal Day bombings where innocent ordinary people were targeted by J[emaah] I[slamiyah] on Light Rail Transit coaches which had claimed many lives. The Light Rail Transit did not represent Western interest and had no symbolic value as far as Western target is concerned and yet it was struck by those heartless terrorists.[110]Risks are inherent in all human activity. The questions properly addressed to policy makers are whether the risks are properly proven and understood, the measures that are proposed are sufficient to mitigate the risks in relation to the beneficial effects or objective of the activity, and whether the measures can be implemented given the institutions in place and the resources available. Governance cannot proceed from imagined fears. Therefore, insofar as judicial review is concerned, it is not our duty to second-guess political branches or local government units. They are in a better position to understand risks, decide on measures, and pursue these measures’ implementation.
Doctrine in Social Justice Society
(SJS), et al. v. Hon. Atienza, Jr.
This much was recognized in Social Justice Society (SJS), et al. v. Hon. Atienza, Jr.[111]
Statutes and ordinances are presumed valid unless and until the courts declare the contrary in clear and unequivocal terms. The mere fact that the ordinance is alleged to be unconstitutional or invalid will not entitle a party to have its enforcement enjoined. The presumption is all in favor of validity. The reason for this is obvious:
The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well being of the people . . . 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.
x x x x x x x x x
[Courts] accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary[,] in the determination of actual cases and controversies[,] must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.
The oil companies argue that this presumption must be set aside when the invalidity or unreasonableness appears on the face of the ordinance itself. We see no reason to set aside the presumption. The ordinance, on its face, does not at all appear to be unconstitutional. It reclassified the subject area from industrial to commercial. Prima facie, this power is within the power of municipal corporations:
The power of municipal corporations to divide their territory into industrial, commercial and residential zones is recognized in almost all jurisdictions inasmuch as it is derived from the police power itself and is exercised for the protection and benefit of their inhabitants.
x x x x x x x x x
There can be no doubt that the City of Manila has the power to divide its territory into residential and industrial zones, and to prescribe that offensive and unwholesome trades and occupations are to be established exclusively in the latter zone.
x x x x x x x x x
Likewise, it cannot be denied that the City of Manila has the authority, derived from the police power, of forbidding the appellant to continue the manufacture of toyo in the zone where it is now situated, which has been declared residential....
Courts will not invalidate an ordinance unless it clearly appears that it is unconstitutional. There is no such showing here. Therefore, the injunctive writs issued in the Manila RTC’s May 19, 2003 order had no leg to stand on.[112] (Citations omitted)
IV
No ordinance is irrepealable
Petitioners assail Ordinance No. 8187 because the ordinance effectively allows the oil depots to remain in the Pandacan terminal, allegedly contrary to this court’s decision in G.R. No. 156052. It, thus, concludes that the ordinance is illegal or unconstitutional.
Petitioners are mistaken.
Ordinance No. 8187 repealed Ordinance No. 8027. G.R. No. 156052 had Ordinance No. 8027 as its subject matter. There is no circumvention of the decision in G.R. No. 156052 simply because Ordinance No. 8027 no longer exists upon its valid repeal by the Sangguniang Panlungsod of Manila. Both ordinances were the result of the determination of policy by the City of Manila. Certainly, there is nothing in our decision in G.R. No. 156052 that categorically prevents the repeal of Ordinance No. 8027.
As this court has categorically stated, “there is no such thing as an irrepealable law.”[113] As explained in Duarte v. Dade:[114]
It is fundamental that what legislators have the power to enact they have the power to repeal. In speaking of the powers of legislative bodies, it is said in Lewis' Southerland on Statutory Construction, section 244: “A state legislature has a plenary law-making power over all subjects, whether pertaining to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be exercised at the same session at which the original act was passed; and even while a bill is in its progress and before it becomes a law. This legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes.”[115] (Emphasis supplied)In The City of Davao et al. v. Regional Trial Court, Branch XII, Davao City et al.,[116] this court stated that:
It is a basic precept that among the implied substantive limitations on the legislative powers is the prohibition against the passage of irrepealable laws. Irrepealable laws deprive succeeding legislatures of the fundamental best senses carte blanche in crafting laws appropriate to the operative milieu. Their allowance promotes an unhealthy stasis in the legislative front and dissuades dynamic democratic impetus that may be responsive to the times. As Senior Associate Justice Reynato S. Puno once observed, “[t]o be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and we should not fear change.”Even the issuance of a writ of mandamus to implement Ordinance No. 8027 cannot mean that it becomes irrepealable. This was a live and existing ordinance when this court dealt with it in Social Justice Society (SJS), et al. v. Hon. Atienza, Jr. Today, it has been validly repealed. This court made it clear in G.R. No. 156052 (2007) that the city mayor has the duty to enforce Ordinance No. 8027 “as long as it has not been repealed by the Sanggunian or annulled by the courts.”[118]
Moreover, it would be noxious anathema to democratic principles for a legislative body to have the ability to bind the actions of future legislative body, considering that both assemblies are regarded with equal footing, exercising as they do the same plenary powers. Perpetual infallibility is not one of the attributes desired in a legislative body, and a legislature which attempts to forestall future amendments or repeals of its enactments labors under delusions of omniscience.[117] (Emphasis supplied, citations omitted)
Violation of the doctrine of respect
for the hierarchy of courts
Respondents argue that the petitions should be dismissed because direct recourse to this court is improper. The allegations in the petitions involve factual issues that require the presentation of evidence. Also, Rule 65, Section 4 of the 1997 Rules of Civil Procedure provides:
SEC. 4. When and where petition filed. — . . . .Chevron argues that since the act complained of was done in the City of Manila, then the petition should have been filed before the Regional Trial Courts of Manila.[119] As a consequence, the petitions in G.R. No. 187836 and G.R. No. 187916 should be dismissed.
The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals.
In accordance with Article VIII, Section 5 of the 1987 Constitution, this court has jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. The same jurisdiction is granted to the Court of Appeals[120] and Regional Trial Courts[121] under Batas Pambansa Blg. 129.[122] Thus, there is concurrence of jurisdiction among this court, the Court of Appeals, and the Regional Trial Court with regard to petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
However, the concurrence of jurisdiction does not mean that parties are free to choose which court to seek redress from. This court is the court of last resort, and observance of the doctrine of hierarchy of courts is necessary to prevent “(1) inordinate demands upon the time and attention of the court, which is better devoted to those matters within its exclusive jurisdiction; and (2) further overcrowding of the court’s docket.”[123]
In Anillo v. COSLAP,[124] this court explained that:
At the outset, it is necessary to stress that a direct recourse to this Court is highly improper for it violates the established policy of strict observance of the judicial hierarchy of courts. While we have concurrent jurisdiction with the RTCs and the Court of Appeals to issue writs of certiorari, this concurrence is not to be taken as an unrestrained freedom of choice as to which court the application for the writ will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. This Court is a court of last resort and must so remain if it is to satisfactorily perform the functions assigned to it by the Constitution and immemorial tradition. A direct invocation of the Supreme Court’s original jurisdiction to issue these extraordinary writs is allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition.Exceptions to the doctrine
. . . .
The doctrines of judicial hierarchy and res judicata are not meaningless procedural rules because they are grounded on fundamental considerations of public policy and sound practice. Procedural rules are not to be belittled or dismissed simply because their non-observance may have resulted in prejudice to a party's substantive rights. Like all rules, they are required to be followed except only for the most persuasive of reasons when they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. Procedural law has its own rationale in the orderly administration of justice, namely, to ensure the effective enforcement of substantive rights by providing for a system that obviates arbitrariness, caprice, despotism or whimsicality in the settlement of disputes.[125]
of hierarchy of courts
Nevertheless, this court has, from time to time, relaxed its rules and allowed the direct filing of petitions before it. The exceptions to the doctrine of hierarchy of courts include:
(1) when dictated by the public welfare and the advancement of public policy; (2) when demanded by the broader interest of justice; (3) when the challenged orders were patent nullities; or (4) when analogous exceptional and compelling circumstances called for and justified the immediate and direct handling of the case.[126]None of these exceptions were sufficiently shown to be present in this case so as to convince this court that it should relax its rules of procedure.
Petitioners have no legal standing
In its memorandum, SJS alleges that it is suing not as taxpayers, but in pursuance of a public right. Since its members are Filipino citizens, it has the standing to pursue the public right without need to allege any specific interest in the public right. SJS also claims that Vladimir Alarique T. Cabigao resides in Pandacan and lives 300 meters away from the Petron oil depot and, as such, has a substantial interest.[127]
In G.R. No. 187916, some of the petitioners are minors claiming to represent their own generation and future generations. However, unlike Oposa v. Factoran,[128] the minors in this case do not appear to be representative enough of the interests of their generation as to consider their petition to be a class suit.
On the contrary, Shell, Chevron, and Petron point out that petitioners neither alleged any particular injury suffered nor did they allege any imminent injury brought about by Ordinance No. 8187.
In cases involving issues of constitutionality, the party raising the issue of constitutionality must have locus standi. Locus standi has been defined as “a right of appearance in a court of justice on a given question.”[129] The basic question in determining if one has locus standing is “whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.”[130]
The requirement that one must have locus standi comes from Article VIII, Section 1 of the 1987 Constitution, which states that:
The requirement that a party must have standing in court is not a mere procedural rule that this court can brush aside on the mere invocation of “transcendental importance,” “taxpayers’ suit,” and “filing as Filipino citizens.” Then Associate Justice Reynato Puno, in his dissenting opinion in Kilosbayan v. Guingona,[131] explained the importance of locus standi:Article VIII.
Judicial Department
Section 1. . . . .
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
The requirement of standing to sue inheres from the definition of judicial power. It is not merely a technical rule of procedure which we are at liberty to disregard. Section 1, Article VIII of the Constitution provides:“Rights which are legally demandable and enforceable” means that the party who seeks relief from this court must suffer, or is in imminent danger of suffering, an injury. In Tolentino v. COMELEC,[133] this court held that “direct injury” may be determined using the following guidelines:
. . . .. . . .
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Italics in the original)
Stated otherwise, courts are neither free to decide all kinds of cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is intended "to assure a vigorous adversary presentation of the case, and, perhaps more importantly to warrant the judiciary's overruling the determination of a coordinate, democratically elected organ of government."
. . . .
A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional issues is economic in character. Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today.[132]
Thus, generally, a party will be allowed to litigate only when (1) he can show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable action.[134]In a previous case,[135] this court held that SJS had no standing to file a petition for declaratory relief before the Regional Trial Court of Manila on the following grounds:
First, parties suing as taxpayers must specifically prove that they have sufficient interest in preventing the illegal expenditure of money raised by taxation. A taxpayer’s action may be properly brought only when there is an exercise by Congress of its taxing or spending power. In the present case, there is no allegation, whether express or implied, that taxpayers’ money is being illegally disbursed.This should have guided SJS in determining whether it had the standing to file the petition for prohibition before this court. Unfortunately, SJS did not heed this court’s advice.
Second, there was no showing in the Petition for Declaratory Relief that SJS as a political party or its members as registered voters would be adversely affected by the alleged acts of the respondents below, if the question at issue was not resolved. There was no allegation that SJS had suffered or would be deprived of votes due to the acts imputed to the said respondents. Neither did it allege that any of its members would be denied the right of suffrage or the privilege to be voted for a public office they are seeking.
Finally, the allegedly keen interest of its “thousands of members who are citizens-taxpayers-registered voters” is too general and beyond the contemplation of the standards set by our jurisprudence. Not only is the presumed interest impersonal in character; it is likewise too vague, highly speculative and uncertain to satisfy the requirement of standing.[136] (Citations omitted)
Transcendental importance
Petitioners try to justify its direct recourse to this court by arguing that the issues raised in their petitions are of “transcendental importance.”[137]
To determine if an issue is of transcendental importance, this court is guided by the parameters set forth in Francisco v. House of Representatives:[138]
There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised.[139]A mere allegation of transcendental importance will not suffice to convince this court to take cognizance of a case. Petitioner SJS, in its memorandum, point out that since this court had taken cognizance of G.R. No. 156052, there is no more need to present other arguments to convince this court that the matter at hand is of transcendental importance.[140]
Petitioners are mistaken. Whether an issue is of transcendental importance is a matter determined by this court on a case-to-case basis. An allegation of transcendental importance must be supported by the proper allegations.
Petitioners, however, merely stated:
This Honorable Court, again in the prequel case of Social Justice Society et al v. Atienza, G.R. No. 156052, 13 February 2008, made the following statements –For this court to brush aside the rules of procedure in view of the “transcendental importance” of a case, petitioners must be able to show that “the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence.”[142] This they failed to do.
The importance of settling this controversy as fully and as expeditiously as possible was emphasized, considering its impact on public interest. Thus, we will also dispose of this issue here. The parties were after all given ample opportunity to present and argue their respective positions. By so doing, we will do away with the delays concomitant with litigation and completely adjudicate an issue which will most likely reach us anyway as the final arbiter of all legal disputes.The foregoing was an undeniable recognition by this Honorable Court of the importance of this case as it mentioned “its impact on public interest” that justified its taking cognizance of the original petition because the issue would most likely reach it anyway “as the final arbiter of all legal disputes.” Thus, petitioners need not stretch its argumentation to convince this Honorable Court about the transcendental importance of this case.[141]
There are other remedies available
Respondents and intervenors point out that more appropriate remedies are available to petitioners. As petitioners’ allegations relate to the environment, they could have filed civil, criminal, or special civil actions before the lower courts, and prayed for the issuance of the writ of kalikasan, or environment protection orders, as provided by the rules of procedure for environmental cases. Chevron raised the argument that since petitioners allege that the Pandacan terminal is hazardous and pollutive, then the proper remedy is not to enjoin the enforcement of Ordinance No. 8187 but to enjoin the hazardous and pollutive activities inside the terminal.[143]
I agree with respondents.
Petitioners could have availed themselves of the remedy of a writ of kalikasan if they could properly and clearly show grave danger to the environment.
Petitioners may argue that their petitions were filed ahead of the promulgation of the rules of procedure for environmental cases. However, procedural rules are generally given retroactive effect since there are no vested rights in rules of procedure.[144]
Rule 7, Section 1 of A.M. No. 09-6-8-SC[145] provides:
SEC. 1. Nature of the writ. — The writ is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.The application for the issuance of a writ of kalikasan is commenced by filing a verified petition, stating the personal circumstances of petitioner and respondent, the environmental laws violated, the acts or omissions complained of, and the environmental damage “as to prejudice the life, health or property of inhabitants in two or more cities or provinces.”[146] The petition must be supported by relevant evidence such as affidavits or documents. A petition for the issuance of a writ of kalikasan may include a prayer for the issuance of a temporary environmental protection order (TEPO).[147]
If petitioners had evidence, they could also file an action for abatement of nuisance, considering that in their memorandum, they characterized the oil depot as a nuisance per accidens. Their memorandum states:
No self-respecting government would allow its people to be exposed to health and safety risk by allowing a nuisance per accidens, just like the Pandacan oil depot, to sit side by side with a densely populated community.[148] (Emphasis from the original removed)Article 694 of the Civil Code defines nuisance as:
ART. 694. A nuisance is any act, omission, establishment, condition of property, or anything else which:Another option available to petitioners was to file a complaint under the provisions of the Clean Air Act.[149] Thus, the law provides:
(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or
(5) Hinders or impairs the use of property.
SEC. 40. Administrative Action. - Without prejudice to the right of any affected person to file an administrative action, the Department shall, on its own instance or upon verified complaint by any person, institute administrative proceedings against any person who violates:If petitioners had evidence to support their allegation that Ordinance No. 8187 by its simple existence actually causes pollution and hazard to communities in Manila, they could avail themselves of remedies under Republic Act No. 6969,[150] whose pertinent portions state:
SEC. 41. Citizen Suits. - For purposes of enforcing the provisions of this Act or its implementing rules and regulations, any citizen may file an appropriate civil, criminal or administrative action in the proper courts against:
- Standards or limitation provided under this Act; or
- Any order, rule or regulation issued by the Department with respect to such standard or limitation.
The court shall exempt such action from the payment of filing fees, except fees for actions not capable of pecuniary estimations, and shall, likewise, upon prima facie showing of the non-enforcement or violation complained of, exempt the plaintiff from the filing of an injunction bond for the issuance of a preliminary injunction.
- aAny person who violates or fails to comply with the provisions of this Act or its implementing rules and regulations; or
- The Department or other implementing agencies with respect to orders, rules and regulations issued inconsistent with this Act; and/or
- Any public officer who willfully or grossly neglects the performance of an act specifically enjoined as a duty by this Act or its implementing rules and regulations; or abuses his authority in the performance of his duty; or, in any manner, improperly performs his duties under this Act or its implementing rules and regulations: Provided, however, That no suit can be filed until after thirty-day (30) notice has been given to the public officer and the alleged violator concerned and no appropriate action has been taken thereon.
Within thirty (30) days, the court shall make a determination if the compliant herein is malicious and/or baseless and shall accordingly dismiss the action and award attorney's fees and damages.
SEC. 42. Independence of Action. - The filing of an administrative suit against such person/entity does not preclude the right of any other person to file any criminal or civil action. Such civil action shall proceed independently.
SEC. 13. Prohibited Acts. – The following acts and omissions shall be considered unlawful:There is also a non-judicial remedy available to petitioners: that of local initiative and local referendum.
SEC. 14. Criminal Offenses and Penalties. –
- Knowingly use a chemical substance or mixture which is imported, manufactured, processed or distributed in violation of this Act or implementing rules and regulations or orders;
- Failure or refusal to submit reports, notices or other information, access to records as required by this Act, or permit inspection of establishment where chemicals are manufactured, processed, stored or otherwise held;
- Failure or refusal to comply with the pre-manufacture and pre-importation requirements; and
- Cause, aid or facilitate, directly or indirectly, in the storage, importation, or bringing into Philippine territory, including its maritime economic zones, even in transit, either by means of land, air or sea transportation or otherwise keeping in storage any amount of hazardous and nuclear wastes in any part of the Philippines.
Any and all means of transportation, including all facilities and appurtenances that may have been used in transporting to or in the storage in the Philippines of any significant amount of hazardous or nuclear wastes shall at the option of the government be forfeited in its favor.
- (i) The penalty of imprisonment of six (6) months and one day to six (6) years and one day and a fine ranging from Six hundred pesos (P600.00) to Four thousand pesos (P4,000.00) shall be imposed upon any person who shall violate section 13 (a) to (c) of this Act and shall not be covered by the Probation Law. If the offender is a foreigner, he or she shall be deported and barred from any subsequent entry into the Philippines after serving his or her sentence;
(ii) In case any violation of this Act is committed by a partnership, corporation, association or any juridical person, the partner, president, director or manager who shall consent to or shall knowingly tolerate such violation shall be directly liable and responsible for the act of the employees and shall be criminally liable as a co-principal;
(iii) In case the offender is a government official or employee, he or she shall, in addition to the above penalties, be deemed automatically dismissed from office and permanently disqualified from holding any elective or appointive position.- (i) The penalty of imprisonment of twelve (12) years and one day to twenty (20) years, shall be imposed upon any person who shall violate section 13 (d) of this Act. If the offender is a foreigner, he or she shall be deported and barred from any subsequent entry into the Philippines after serving his or her sentence;
(ii) In the case of corporations or other associations, the above penalty shall be imposed upon the managing partner, president or chief executive in addition to an exemplary damage of at least Five hundred thousand pesos (P500,000.00). If it is a foreign firm, the director and all officers of such foreign firm shall be barred from entry into the Philippines, in addition to the cancellation of its license to do business in the Philippines;
(iii) In case the offender is a government official or employee, he or she shall in addition to the above penalties be deemed automatically dismissed from office and permanently disqualified from holding any elective or appointive position.- Every penalty imposed for the unlawful importation, entry, transport, manufacture, processing, sale or distribution of chemical substances or mixtures into or within the Philippines shall carry with it the confiscation and forfeiture in favor of the Government of the proceeds of the unlawful act and instruments, tools or other improvements including vehicles, sea vessels, and aircrafts used in or with which the offense was committed. Chemical substances so confiscated and forfeited by the Government at its option shall be turned over to the Department of Environment and Natural Resources for safekeeping and proper disposal.
- The person or firm responsible or connected with the bringing or importation into the country of hazardous or nuclear wastes shall be under obligation to transport or send back said prohibited wastes;
Section 120 and Section 126 of Republic Act No. 7160 define local initiative and local referendum as:
SECTION 120. Local Initiative Defined. – Local initiative is the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance.Petron alleges that a petition for referendum regarding Ordinance No. 8187 was initiated on June 23, 2009.[151] The petition was entitled “Petisyon ng mga mamamayan ng Maynila sa Sangguniang Panglungsod ng Maynila na kaagad pawalang bisa ang City Ordinance No[.] 8187 na may pamagat na ‘An Ordinance Amending Ordinance No. 8119, otherwise known as ‘The Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006’, by creating a Medium Industrial Zone (1-2) and Heavy Industrial Zone (1-3) and Providing for its Enforcement.’”[152]
. . . .
SECTION 126. Local Referendum Defined. – Local referendum is the legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the sanggunian.
The local referendum shall be held under the control and direction of the COMELEC within sixty (60) days in case of provinces and cities, forty-five (45) days in case of municipalities and thirty (30) days in case of barangays.
The COMELEC shall certify and proclaim the results of the said referendum.
Two of the signatories in the petition for referendum, Vladimir Cabigao and Rafael Borromeo, are petitioners in this case.[153]
Petitioners definitely had other plain, speedy, and adequate remedies. On this ground alone, the petition should have been dismissed.
renders this case moot and academic
Intervenor Shell filed a manifestation with motion to dismiss dated September 2, 2013, informing this court that Ordinance No. 8283 was published in The Manila Times[154] and took effect on September 30, 2012.[155] Shell prays that the petitions be dismissed for being moot and academic.[156] In the same manifestation, Shell stated that it filed a petition for declaratory relief docketed as Case No. 131034 questioning Ordinance No. 8283 before the Regional Trial Court of Makati City.[157]
Respondent Luch R. Gempis, Jr., Secretary of the Sangguniang Panlungsod of Manila, filed a compliance/explanation with urgent manifestation dated September 13, 2012, informing this court that the Sangguniang Panlungsod of Manila enacted Ordinance No. 8283 on August 28, 2012.[158] The relevant portions of Ordinance No. 8283 provides:
Mayor Lim vetoed Ordinance No. 8283.[160] However, the members of the Sangguniang Panlungsod of Manila overrode Mayor Lim’s veto by more than two-thirds (2/3) vote during a regular session on September 13, 2012.[161]Mayor Lim filed a manifestation[162] dated November 26, 2012, informing this court that he vetoed Ordinance No. 8283 for a second time, pursuant to Section 17 of Republic Act No. 409.[163]ORDINANCE NO. 8283
An Ordinance Amending Section 2 of Ordinance No. 8187 by Reclassifying the Area where Petroleum Refineries and Oil Depots are located from Heavy Industrial (I-3) to High Intensity Commercial/Mixed Use Zone (C3/MXD)
Be it ordained by the City Council of Manila, in session assembled, THAT:
SECTION 1. Section 2 of Ordinance No. 8187 shall be amended to read as follows:
“SEC. 2 The land use where the existing industries are located, the operation of which are permitted under Section 1 hereof, are hereby classified as Industrial Zone except the area where petroleum refineries and oil depots are located, which shall be classified as High Intensity Commercial/Mixed Use Zone (C3/MXD).” (Emphasis from the original removed)SEC. 2. Owners or operators of petroleum refineries and oil depots, the operation of which are no longer permitted under Section 1 hereof, are hereby given a period until the end of January 2016 within which to relocate the operation of their businesses.[159]
Whether Mayor Lim’s second veto was overridden does not appear on record. However, considering this court’s pronouncement in City of Manila v. Hon. Laguio, Jr.,[164] the applicable law in this case is Republic Act No. 7160 and not Republic Act No. 409. Section 55(c) of Republic Act No. 7160 provides:
SECTION 55. Veto Power of the Local Chief Executive. – . . . .Following Section 55(c) of Republic Act No. 7160, Mayor Lim’s second veto can be presumed to be of no effect. For this reason, the enactment, publication, and enforcement of Ordinance No. 8283 render the petitions moot and academic. In David v. Macapagal-Arroyo,[165] this court defined “moot and academic” in the following manner:
. . . .
(c) The local chief executive may veto an ordinance or resolution only once. The sanggunian may override the veto of the local chief executive by two-thirds (2/3) vote of all its members, thereby making the ordinance effective even without the approval of the local chief executive concerned. (Emphasis supplied).
A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value.[166]In the same case, this court discussed the moot and academic principle as:
The ‘moot and academic’ principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and the public; and fourth, the case is capable of repetition yet evading review.[167]Province of North Cotabato v. GRP[168] discussed another exception to the moot and academic principle: the “voluntary cessation of the activity complained of by the defendant or doer.”[169] This exception was illustrated as follows:
Thus, once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine the case and does not render the case moot especially when the plaintiff seeks damages or prays for injunctive relief against the possible recurrence of the violation.[170]None of the parties have been able to show that the exceptions to the moot and academic principle are present. A review of the records reveals that after Shell and the Sangguniang Panlungsod of Manila filed their manifestations, petitioners SJS and Mayor Atienza did not file any opposition to the motions to dismiss.
In any case, to rule upon the validity of Ordinance No. 8187 would be of no use since the ordinance has been amended and, thus, conditions may have changed.
This court is mindful that the power of judicial review should be exercised with caution. Judicial pronouncements on the validity and constitutionality of laws must be narrowly tailored to actual facts and issues in order to prevent judicial overreach[171] and ensure that the remedy sought is appropriate to the cause of action.[172] Actual facts that have been duly proven provide the limits to the scope of judicial review that this court may exercise in a particular case.[173] In view of these principles, this court must refrain from ruling upon the validity of Ordinance No. 8187.
Mayor Atienza argues that Ordinance No. 8187 violates the precautionary principle in international environmental law.[174] Intervenor Shell refutes this by arguing that the precautionary principle only applies “when scientific investigation has found a plausible risk.”[175]
The precautionary principle applies when it can be shown that there is plausible risk, and its causes cannot be determined with scientific certainty. It is not available simply on the basis of imagined fears or imagined causes. Otherwise, it will be absurd. Rather than a reactive approach to fear, the precautionary principle is evolving as a proactive approach in protecting the environment.[176] Furthermore, being only a principle, it does not trump the requirements for proper invocation of remedies or act to repeal existing laws.
Petitioners’ fears with regard to the prolonged stay of the oil companies in the Pandacan terminal should be assuaged by the execution of the MOU in 2002 among the Department of Energy, City of Manila, Caltex (Philippines), Inc., Petron Corporation, and Pilipinas Shell Petroleum Corporation.[177] Although it appears that the validity of the MOU expired on April 30, 2003,[178] the oil companies continued to fulfill their responsibilities under the MOU. Several tanks have been decommissioned and dismantled,[179] including Shell’s LPG spheres.[180] Petron filed a manifestation,[181] informing this court that within five years, or not later than January 2016, it will cease the operations of its petroleum storage facilities in Pandacan due to environmental concerns and the frequent changes in the zoning ordinances.[182] Buffer zones were constructed to protect both the terminal and the nearby residential area.[183] The oil companies intend to continuously scale down its operations in the Pandacan terminal, lessening operations by around 80% in five years.[184]
Further, the Sangguniang Panlungsod of Manila enacted Ordinance No. 8283 on August 28, 2012,[185] which reclassifies the Pandacan terminal from a heavy industrial zone to a high intensity commercial/mixed use zone.[186]According to news reports,[187] Mayor Joseph Estrada is enforcing Ordinance No. 8283 and has informed the oil companies that they should relocate by January 2016.
Petitioners’ aggressive vigilance to protect the community’s security and its environment is laudable. However, the resources that they deployed would have been best used in the political forum. This court’s jurisdiction is limited by the rule of law. The policy decision to remove or gradually phase out the Pandacan oil depot is left to the representatives of the people of the City of Manila. We cannot replace their political decision with our own no matter how convinced we are of our own policy positions.
ACCORDINGLY, I vote to dismiss the petitions in G.R. No. 187836 and G.R. No. 187916 for being moot and academic.
[1] Rollo (G.R. No. 187836), pp. 2757–2765 (respondent’s manifestation) and 2813–2820 (respondent-intervenor Pilipinas Shell Petroleum Corporation’s manifestation). The compliance/explanation with urgent manifestation dated September 13, 2012 of respondent was filed by Luch R. Gempis, Jr., Secretary of the Sangguniang Panlungsod of Manila. The manifestation with motion to dismiss dated September 2, 2013 of respondent-intervenor Pilipinas Shell Petroleum Corporation likewise informed this court of the enactment of Ordinance No. 8283.
[2] Id. at 2760.
[3] Id. at 2031.
[4] Id. at 2029–2030.
[5] Id. at 2032. The pipeline was inaugurated in 1969.
[6] Id. at 2031.
[7] Id.
[8] Id. at 2030 and 2526. The data supplied by Chevron and Shell in their memoranda does not indicate the specific years when the data was collected.
[9] Id. at 2030.
[10] Id. at 2032.
[11] An Act Declaring a National Policy on the Petroleum Industry, Regulating the Activities and Relations of Persons and Entities engaged therein, Establishing an Oil Industry Commission to Effectuate the Same, and Defining its Functions, Powers and Objectives, and for Other Purposes (1971). Rep. Act No. 6173 was subsequently amended by Pres. Decrees numbered 56, 102, 389-A, 429-A, 456 and 1128.
[12] Pres. Decree No. 1206 (1977), otherwise known as Creating the Department of Energy.
[13] Pres. Decree No. 1206 (1977), sec. 1.
[14] An Act Deregulating the Downstream Oil Industry, and for Other Purposes (1998).
[15] Rollo (G.R. No. 187836), p. 2035.
[16] Ordinance Reclassifying the Land Use of that Portions of Land Bounded by the Pasig River in the North, PNR railroad track in the East, Beata St. in the South, Palumpong St. in the Southwest, and Estero de Pandacan in the West, PNR railroad in the Northwest Area, Estero de Pandacan in the Northeast, Pasig River in the Southeast and Dr. M.L. Carreon in the Southwest; The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St. and the F. Manalo Street from Industrial II to Commercial I (2001).
[17] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 568 Phil. 658, 668 (2008) [Per J. Corona, First Division].
[18] Rollo (G.R. No. 187836), pp. 2034–2035.
[19] Id. at 2036.
[20] Id. at 2037.
[21] Id. at 2038.
[22] Id. at 2040.
[23] Id. at 2040–2041.
[24] Id. at 2041.
[25] Id.
[26] Id. at 2042.
[27] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 568 Phil. 658, 671 (2008) [Per J. Corona, First Division].
[28] Id. at 2043.
[29] Id.
[30] Id. at 2043–2044.
[31] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 546 Phil. 485, 494 (2007) [Per J. Corona, First Division].
[32] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 568 Phil. 658, 723 (2008) [Per J. Corona, First Division].
[33] Rollo (G.R. No. 187836), p. 2046.
[34] Id.
[35] Rule 52, sec. 2 of the Rules of Court states:
SEC. 2. Second motion for reconsideration. — No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.
[36] Rollo (G.R. No. 187836), p. 2047.
[37] Id. at 3–10.
[38] Rollo (G.R. No. 187916), pp. 11–67.
[39] Tano v. Hon. Gov. Socrates, 343 Phil. 670, 700 (1997) [Per J. Davide, Jr., En Banc], citing La Union Electric Cooperative v. Yaranon, 259 Phil. 457, 466 (1989) [Per J. Gancayco, First Division] and Francisco v. Permskul, 255 Phil. 311, 322 (1989) [Per J. Cruz, En Banc].
[40] Estrada v. Sandiganbayan, 421 Phil. 290, 342 (2001) [Per J. Bellosillo, En Banc].
[41] Ermita-Malate Hotel and Motel Operators Association, et al. v. City of Manila, 127 Phil. 306 (1967) [Per J. Fernando, En Banc].
[42] Id. at 314–315, citing U.S. v. Salaveria, 39 Phil. 102, 111 (1918) [Per J. Malcolm, En Banc].
[43] Estrada v. Sandiganbayan, 421 Phil. 290, 343 (2001) [Per J. Bellosillo, En Banc].
[44] Rep. Act No. 409 (1949), otherwise known as An Act to Revise the Charter of the City of Manila, and for Other Purposes.
[45] 495 Phil. 289 (2005) [Per J. Tinga, En Banc]. This case involved an ordinance, classified by the city council as a zoning ordinance, which prohibited the establishment or operation of certain businesses in the Ermita-Malate area.
[46] Id. at 332–334.
[47] An Act Creating the Metropolitan Manila Development Authority, Defining its Powers and Functions, Providing Funds therefor and for Other Purposes (1995).
[48] The Rules and Regulations Implementing R.A. No. 7924 became effective on June 8 1996.
[49] Providing for the Preparation and Implementation of the Comprehensive Land Use Plans of Local Government Units Pursuant to the Local Government Code of 1991 and Other Pertinent Laws (1993).
[50] Rollo (G.R. No. 187836), p. 1810.
[51] Id.
[52] Id. at 1810–1812.
[53] G.R. No. 204429, February 18, 2014
[54] Id. at p. 13.
[55] G.R. No. 161107, March 12, 2013, 693 SCRA 141 [Per J. Mendoza, En Banc].
[56] Id. at 157, citing White Light Corporation v. City of Manila, 596 Phil. 444 (2009) [Per J. Tinga, En Banc].
[57] 495 Phil. 289 (2005) [Per J. Tinga, En Banc].
[58] Id. at 308.
[59] Hon. Ma. Lourdes C. Fernando, in her capacity as City Mayor of Marikina City, et al. v. St. Scholastica’s College and St. Scholastica’s Academy-Marikina, Inc., G.R. No. 161107, March 12, 2013, 693 SCRA 141, 157 [Per J. Mendoza, En Banc].
[60] Id. at 158, citing Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 546 Phil. 485, 493 (2007) [Per J. Corona, First Division].
[61] 596 Phil. 444 (2009) [Per J. Tinga, En Banc].
[62] Id. at 462.
[63] Ponencia, pp. 50 and 53–54.
[64] Rollo (G.R. No. 187836), p. 1761.
[65] Id. at 1768.
[66] Id. at 1770.
[67] Id. at 1773–1774.
[68] Id. at 1772.
[69] Id. at 1767.
[70] Ponencia, p. 53.
[71] Rollo (G.R. No. 187836), p. 2039.
[72] Id.
[73] Id. at 2368.
[74] Id. at 2369.
[75] Id.
[76] Ponencia, pp. 55–56.
[77] Rollo (G.R. No. 187836), pp. 2487–2488.
[78] Id. at 2222.
[79] Id. at 2223.
[80] Id. at 2224–2225.
[81] Id. at 2222.
[82] Id. at 2370.
[83] Id. at 2371.
[84] Id. at 2462.
[85] Id. at 2462–2463.
[86] Id. at 2115–2122.
[87] Id. at 1760–1761.
[88] J. Leonen, dissenting opinion in Imbong v. Ochoa, G.R. No. 204819, April 8, 2014
[89] 546 Phil. 485 (2007) [Per J. Corona, En Banc]; 568 Phil. 658 (2008) [Per J. Corona, First Division]. The 2008 Social Justice Society (SJS), et al. v. Hon. Atienza, Jr. case is a resolution on the interventions of Chevron Philippines, Inc., Petron Corporation, and Pilipinas Shell Petroleum Corporation.
[90] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 546 Phil. 485, 494 (2007) [Per J. Corona, First Division].
[91] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 568 Phil. 658, 723 (2008) [Per J. Corona, First Division].
[92] Id. at 720.
[93] Id. at 702–705.
[94] Id. at 708–709.
[95] An Act Creating the Department of Energy Rationalizing the Organization and Functions of Government Agencies Related to Energy, and for Other Purposes (1992).
[96] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 568 Phil. 658, 709–715 (2008) [Per J. Corona, First Division].
[97] Id. at 706.
[98] Rollo (G.R. No. 187836), p. 1758.
[99] Id. at 1765.
[100] 238 Phil. 136 (1987) [Per J. Cruz, First Division].
[101] Id. at 146.
[102] Rollo (G.R. No. 187836), p. 1767.
[103] Villanueva v. Castañeda, 238 Phil. 136, 139 (1987) [Per J. Cruz, First Division].
[104] Id. at 146.
[105] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 546 Phil. 485 (2007) and 568 Phil. 658 [Per J. Corona, First Division].
[106] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 568 Phil. 658, 703 (2008) [Per J. Corona, First Division].
[107] Rollo (G.R. No. 187836), pp. 1768–1770.
[108] Id. at 2224.
[109] Id. at 2223.
[110] Id. at 1770.
[111] 568 Phil. 658 (2008) [Per J. Corona, First Division].
[112] Id. at 683–684. See Ermita-Malate Hotel and Motel Operators Association, Inc. v. Hon. City Mayor of Manila, 127 Phil. 306, 325 (1967) [Per J. Fernando, En Banc]; US v. Salaveria, 39 Phil. 102, 110 (1918) [Per J. Malcolm, En Banc]; Angara v. Electoral Commission, 63 Phil. 139, 157 (1936) [Per J. Laurel, En Banc].
[113] Atitiw et al. v. Zamora, et al., 508 Phil. 321, 341 (2005) [Per J. Tinga, En Banc].
[114] 32 Phil. 36 (1915) [Per J. Trent, En Banc].
[115] Id. at 49.
[116] 504 Phil. 543 (2005) [Per J. Tinga, Second Division].
[117] Id. at 558.
[118] Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 546 Phil. 485, 493 (2007) [Per J. Corona, First Division].
[119] Rollo (G.R. No. 187836), p. 2053.
[120] Batas Pambansa Blg. 129 (1981), sec. 9.
[121] Batas Pambansa Blg. 129 (1981), sec. 21.
[122] An Act Reorganizing the Judiciary, Appropriating Funds Therefor, and for Other Purposes.
[123] Emmanuel A. De Castro v. Emerson S. Carlos, G.R. No. 194994, April 16, 2013, 696 SCRA 400, 407 [Per C.J. Sereno, En Banc].
[124] 560 Phil. 499 (2007) [Per J. Tiñga, Second Division].
[125] Id. at 505–506 and 509.
[126] Ernesto Dy v. Hon. Gina M. Bibat-Palamos, G.R. No. 196200, September 11, 2013, 705 SCRA 613, 622 [Per J. Mendoza, Third Division], citing Republic of the Philippines v. Caguioa, G.R. No. 174385, February 20, 2013, 691 SCRA 306 [Per J. Brion, Second Division].
[127] Rollo (G.R. No. 187836), pp. 1761–1762.
[128] G.R. No. 101083, July 30, 1993, 224 SCRA 792 [Per J. Davide, Jr., En Banc].
[129] J. Leonen, concurring opinion in Garcia v. Drilon, G.R. No. 179267, June 25, 2013, 699 SCRA 352, 491 [Per J. Perlas-Bernabe, En Banc], citing David v. Macapagal-Arroyo, 522 Phil. 705, 755 (2006) [Per J. Sandoval-Gutierrez, En Banc].
[130] J. Leonen, concurring opinion in Garcia v. Drilon, G.R. No. 179267, June 25, 2013, 699 SCRA 352, 491 [Per J. Perlas-Bernabe, En Banc], citing Galicto v. Aquino III, G.R. No. 193978, February 28, 2012, 667 SCRA 150, 170 [Per J. Brion, En Banc].
[131] J. Puno, dissenting opinion in Kilosbayan v. Guingona, G.R. No. 113375, May 5, 1994, 232 SCRA 110 [Per J. Davide, Jr., En Banc].
[132] Id. at 166, 169, and 170–171.
[133] 465 Phil. 385 (2004) [Per J. Carpio, En Banc].
[134] Id. at 402.
[135] Velarde v. Social Justice Society, G.R. No. 159357, April 28, 2004, 428 SCRA 283 [Per J. Panganiban, En Banc].
[136] Id. at 296–297.
[137] Rollo (G.R. No. 187836), p. 1764.
[138] 460 Phil. 830 (2003) [Per J. Carpio Morales, En Banc].
[139] Id. at 899.
[140] Rollo (G.R. No. 187836), p. 1764.
[141] Id. at 1764.
[142] J. Leonen, concurring opinion in Garcia v. Drilon, G.R. No. 179267, June 25, 2013, 699 SCRA 352, 493 [Per J. Perlas-Bernabe, En Banc].
[143] Rollo (G.R. No. 187836), pp. 2065–2066.
[144] De los Santos v. Vda. de Mangubat, 561 Phil. 512 (2007) [Per J. Austria-Martinez, Third Division].
[145] Rules of Procedure for Environmental Cases (2010).
[146] A.M. No. 09-6-8-SC, Rule 7, sec. 2.
[147] A.M. No. 09-6-8-SC, Rule 7, sec. 2(f).
[148] Rollo (G.R. No. 187836), p. 1775.
[149] Rep. Act No. 8749 (1999), otherwise known as An Act Providing for a Comprehensive Air Pollution Control Policy and for Other Purposes.
[150] An Act to Control Toxic Substances and Hazardous and Nuclear Wastes, Providing Penalties for Violations Thereof, and for Other Purposes (1990).
[151] Rollo (G.R. No. 187836), p. 2142.
[152] Id. at 2143.
[153] Id.
[154] Id. at 2815.
[155] Id. at 2814.
[156] Id. at 2816.
[157] Id.
[158] Id. at 2760.
[159] Id. at 2766–2767.
[160] Id. at 2760.
[161] Id. at 2761.
[162] Id. at 2781–2783.
[163] Id. at 2782.
[164] 495 Phil. 289 (2005) [Per J. Tinga, En Banc]. This court held that:
On the second point, it suffices to say that the Code being a later expression of the legislative will must necessarily prevail and override the earlier law, the Revised Charter of Manila. Legis posteriores priores contrarias abrogant, or later statute repeals prior ones which are repugnant thereto. As between two laws on the same subject matter, which are irreconcilably inconsistent, that which is passed later prevails, since it is the latest expression of legislative will.
. . . .
In addition, Section 534(f) of the Code states that “All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly.” (pp. 333–334)
[165] 522 Phil. 705 (2006) [Per J. Sandoval-Gutierrez, En Banc].
[166] Id. at 753.
[167] Id. at 754.
[168] 589 Phil. 387 (2008) [Per J. Carpio-Morales, En Banc].
[169] Id. at 490.
[170] Id. at 490.
[171] J. Leonen, concurring opinion in Araullo v. Aquino G.R. No. 209287, July 1, 2014 < http://sc.judiciary. gov.ph/ pdf/web/viewer.html?file=/jurisprudence/2014/july2014/209287.pdf> [Per J. Bersamin, En Banc].
[172] J. Leonen, dissenting and concurring opinion in Disini, Jr. v. Secretary of Justice, G.R. No. 203335, February 18, 2014,
[173] J. Leonen, dissenting opinion in Imbong v. Ochoa G.R. No. 204819, April 8, 2014,
[174] Rollo (G.R. No. 187836), p. 2466.
[175] Id. at 2467.
[176] R. B. Deloso, The Precautionary Principle: Relevance in International Law and Climate Change, 80 PHIL. L. J. 644 (2006).
[177] Rollo (G.R. No. 187836), pp. 331–334.
[178] As per the decision in Social Justice Society (SJS), et al. v. Hon. Atienza, Jr., 546 Phil. 485, 490 and 494 (2007) [Per J. Corona, First Division].
[179] Rollo (G.R. No. 187836), p. 2474.
[180] Id. at 2475.
[181] Id. at 2315–2317.
[182] Id. at 2316.
[183] Id. at 2039.
[184] Id. at 2517.
[185] Id. at 2760.
[186] Id. at 2766–2767.
[187] Philippine Information Agency, April 3, 2014
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