G.R. No. 187836, November 25, 2014
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS, NAMELY, SAMSON S. ALCANTARA, AND VLADIMIR ALARIQUE T. CABIGAO, Petitioners, v. 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, v. 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.
CONCURRING AND DISSENTING OPINION
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 (1-3) 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 pipeline5 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 fuels.
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. 617311 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. - . . . .
(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[.]
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
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.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 (MOD) 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 MOD in Resolution No. 97, Series of 2002. The MOD 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 MOD'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 MOD'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. 8027.3l 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 resolution34 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 of2006' 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 petition37 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 (1-2) and Heavy Industrial Zone (1-3), 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 Manila41 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 loca11egis1ative 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 regu1ation.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:
(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:
(vii) Adopt a comprehensive land use plan for the city: Provided, That in the case of component cities, the formulation, adoption or modification of said plan shall be in coordination with the approved provincial comprehensive land use plan;
(viii) Reclassify land within the jurisdiction of the city, subject to the pertinent provisions of this Code;
(ix) Enact integrated zoning ordinances in consonance with the approved comprehensive land use plan, subject to existing laws, rules and regulations; establish fire limits or zones, particularly in populous centers; and regulate the construction, repair or modification of buildings within said fire limits or zones in accordance with the provisions of the Fire Code[.] (Emphasis supplied)
The Revised Charter of the City of Manila or Republic Act No. 409 also provides:44
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.
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:
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.
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
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.
The Local Government Code does not provide for a special procedure with regard to the passage of a zoning ordinance. However, Republic Act No. 792447 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:
e. Urban renewal, zoning and land use planning, and shelter services which include the formulation, adoption and implementation of policies, standards, rules and regulations, programs and projects to rationalize and optimize urban land use and provide direction to urban growth and expansion, the rehabilitation and development of slum and blighted areas, the development of shelter and housing facilities and the provision of necessary social services thereof.
Rule V, Section 15 of the implementing rules and regulations of Republic Act No. 792448 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.
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)
OP Executive Order No. 7249 then provides:
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.
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.
None of the petitioners question whether Ordinance No. 8187 followed these requirements.
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.
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 Counci1.51
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 Pan1ungsod 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 Pan1ungsod of Mani1a.52
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, Batangas53 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. Laguio57 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 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)
We then recalled the rational relationship test in this manner:
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 at. 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.
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 concemed.63
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.
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 2001766
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 report69 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.7° (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; and
. . . . 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 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 bum. 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
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 trains
28 churches and mosques 13 police stations
20 restaurants and cafes 18 hotels79
An 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.8o 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
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 Malacanang Palace. It is included in the "no-fly zone". Any aircraft flying near the area can be "neutralized" by Malacanang 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/extreme1y 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/extreme1y 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 p1ace.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 India87 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 at. 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. 763895 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 at. 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 at. 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 only be 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. Castaneda,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 at. v. Hon. Atienza, Jr.105
For instance, the ponencia in Social Justice Society (SJS), et at. 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:
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 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.l07
In the Philippines, terrorists have targeted government buildings, public utility buses, fastfood outlet, beach resort, markets, and churches.l08 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 modem 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 at. 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.
xxx xxx xxx
[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.
xxx xxx xxx
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.
xxx xxx xxx
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)
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."I13 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."
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)
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 at. 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
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. -. . . .
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.
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.
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 Appeals120 and Regional Trial Courts121 under Batas Pambansa Big. 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.
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. Procedura11aw 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
Exceptions to the doctrine 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:
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 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:
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:
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 case 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
"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:
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.
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)
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.
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 -
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
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.
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-SC145 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:
(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.
Another option available to petitioners was to file a complaint under the provisions of the Clean Air Act. 149 Thus, the law provides:
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:
a. Standards or limitation provided under this Act; or
b. Any order, rule or regulation issued by the Department with respect to such standard or limitation.
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:
a. Any person who violates or fails to comply with the provisions of this Act or its implementing rules and regulations; or
b. The Department or other implementing agencies with respect to orders, rules and regulations issued inconsistent with this Act; and/or
c. 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.
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.
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.
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. 13. Prohibited Acts. - The following acts and omissions shall be considered unlawful:
a. 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;
b. 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;
c. Failure or refusal to comply with the pre-manufacture and pre-importation requirements; and
d. 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.
SEC. 14. Criminal Offenses and Penalties.-
a. (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.
b. (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.
c. 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.
d. 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;
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.
There is also a non-judicial remedy available to petitioners: that of local initiative and local referendum.
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.
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 bar an gays.
The COMELEC shall certify and proclaim the results of the said referendum.
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
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.
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 Timesl54 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:
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:
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
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 manifestation162 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
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. - . . . .
(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).
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:
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. GRp168 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 MOD 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 MOD expired on April 30, 2003, 17S the oil companies continued to fulfill their responsibilities under the MOD.
Several tanks have been decommissioned and dismantled, 179 including Shell's LPG spheres. ISO Petron filed a manifestation, ISI 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.ls2 Buffer zones were constructed to protect both the terminal and the nearby residential area.IS3 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.
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 (200 I ).
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.
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.
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.
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. Ganeayeo, 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.
52 Id. at 1810-1812.
53 G.R. No. 204429, February 18, 2014 <http://se.judiciary.gov.ph/pdf/web/viewer.html?fi1e=/ jurisprudenee!2014/february2014!204429.pdt> [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.
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.
73 Id. at 2368.
74 Id. at 2369.
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 <http://se.judiciary.gov.ph/pdf/web/viewer.html?fi1e=/jurisprudence/20 14/apri120 14/204819.pdf> [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. ease 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. Castaneda, 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.
121 Batas Pambansa Big. 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. Tinga, 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, April28, 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(t).
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.
154 Id. at 2815.
155 Id. at 2814.
156 Id. at 2816.
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(t) 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=/jurispmdence/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, <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/
february2014/203335.pdf> [Per J. Abad, En Banc].
173 J. Leonen, dissenting opinion in Imbong v. Ochoa G.R. No. 204819, April 8, 2014, <http://sc.judiciary.gov.ph/pdf/web/viewer.html?fi1e=/jurispmdence/2014/april2014/204819 .pdf> [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 <http://news.pia.gov.ph/article/view/231396509958/estrada-orders-big-3-to-remove-oil-depots-in-pandacan> (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, 20 14, <http://newsinfo.inquirer.net/591385/mayor-estrada-to-big-3-oil-firms-submit-relocation-plans> (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) <http://www.rappler.com/nation/54618-erap-estrada-close-pandacan-oil-depot> (visited November 1 ], 20]4).