Section 27 of Republic Act No. 6770 (The Ombudsman Act) -Effectivity and Finality of Decisions. — (1) All provisionary orders of the Office of the Ombudsman are immediately effective and executory. x x x x Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one (1) month's salary shall be final and unappealable.

See - http://sc.judiciary.gov.ph/jurisprudence/2011/july2011/153809.htm


"x x x.

On a procedural note, the assailed ruling of the Ombudsman obviously possesses the character of finality and, thus, not subject to appeal.  The pertinent provision in this case is the old Section 7, Rule III of Ombudsman Administrative Order No. 7, Series of 1990 (Rules of Procedure of the Office of the Ombudsman), before it was amended by Ombudsman Administrative Order No. 17, Series of 2003 (Amendment of Rule III, Administrative Order No. 7), which states that:

Sec. 7. FINALITY OF DECISION. — Where the respondent is absolved of the charge and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final and unappealable. In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari shall have been filed by him as prescribed in Section 27 of RA 6770.

The basis for the said rule of procedure is Section 27 of Republic Act No. 6770 (The Ombudsman Act), to wit:

Section 27. Effectivity and Finality of Decisions. — (1) All provisionary orders of the Office of the Ombudsman are immediately effective and executory.

x x x x

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one (1) month's salary shall be final and unappealable.

As shown by the aforementioned regulation and statute, a decision of the Ombudsman absolving the respondent of an administrative charge is final and unappealable.

The Court categorically upheld this principle in Reyes, Jr. v. Belisario,[17] to wit:

Notably, exoneration is not mentioned in Section 27 as final and unappealable. However, its inclusion is implicit for, as we held in Barata v. Abalos, if a sentence of censure, reprimand and a one-month suspension is considered final and unappealable, so should exoneration.

The clear import of Section 7, Rule III of the Ombudsman Rules is to deny the complainant in an administrative complaint the right to appeal where the Ombudsman has exonerated the respondent of the administrative charge, as in this case. The complainant, therefore, is not entitle to any corrective recourse, whether by motion for reconsideration in the Office of the Ombudsman, or by appeal to the courts, to effect a reversal of the exoneration. Only the respondent is granted the right to appeal but only in case he is found liable and the penalty imposed is higher than public censure, reprimand, one-month suspension or a fine equivalent to one month salary.

The absence of any statutory right to appeal the exoneration of the respondent in an administrative case does not mean, however, that the complainant is left with absolutely no remedy. Over and above our statutes is the Constitution whose Section 1, Article VIII empowers the courts of justice 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. This is an overriding authority that cuts across all branches and instrumentalities of the government and is implemented through the petition for certiorari that Rule 65 of the Rules of Court provides. A petition for certiorari is appropriate when a tribunal, clothed with judicial or quasi-judicial authority, acted without jurisdiction (i.e., without the appropriate legal power to resolve a case), or in excess of jurisdiction (i.e., although clothed with the appropriate power to resolve a case, it oversteps its authority as determined by law, or that it committed grave abuse of its discretion by acting either outside the contemplation of the law or in a capricious, whimsical, arbitrary or despotic manner equivalent to lack of jurisdiction). The Rules of Court and its provisions and jurisprudence on writs of certiorari fully apply to the Office of the Ombudsman as these Rules are suppletory to the Ombudsman’s Rules. The Rules of Court are also the applicable rules in procedural matters on recourses to the courts and hence, are the rules the parties have to contend with in going to the CA.[18]

In the case at bar, the petitioner did not file a petition for certiorari under Rule 65 of the Rules of Court and instead filed a petition for review under Rule 43 of the Rules of Court with the Court of Appeals.  The latter is effectively an appeal to the Court of Appeals which is disallowed by the Rules of Procedure of the Office of the Ombudsman as well as the Ombudsman Act in case the respondent is exonerated by the Ombudsman for an administrative charge.

In any event, the instant petition failed to show any grave abuse of discretion or any reversible error on the part of the Ombudsman in issuing its assailed administrative decision, as affirmed by the Court of Appeals, which would compel this Court to overturn it.

Elementary is the rule that the findings of fact of the Office of the Ombudsman are conclusive when supported by substantial evidence and are accorded due respect and weight, especially when they are affirmed by the Court of Appeals.  It is only when there is grave abuse of discretion by the Ombudsman that a review of factual findings may aptly be made.  In reviewing administrative decisions, it is beyond the province of this Court to weigh the conflicting evidence, determine the credibility of witnesses, or otherwise substitute its judgment for that of the administrative agency with respect to the sufficiency of evidence.  It is not the function of this Court to analyze and weigh the parties’ evidence all over again except when there is serious ground to believe that a possible miscarriage of justice would thereby result.[19]    

x x x."

"Law of the case" doctrine; when applicable - G.R. No. 153809

See - G.R. No. 153809


"x x x.

Before proceeding to the discussion on why the petitioner’s contentions fail to convince, it is appropriate to restate here the law of the case doctrine in light of respondents’ erroneous appreciation of the same. 

In Padillo v. Court of Appeals,[9] we had occasion to explain this principle, to wit:

Law of the case has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. As a general rule, a decision on a prior appeal of the same case is held to be the law of the case whether that question is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing.[10]

The concept of law of the case was further elucidated in the 1919 case of Zarate v. Director of Lands,[11] to wit:

A well-known legal principle is that when an appellate court has once declared the law in a case, such declaration continues to be the law of that case even on a subsequent appeal. The rule made by an appellate court, while it may be reversed in other cases, cannot be departed from in subsequent proceedings in the same case. The "Law of the Case," as applied to a former decision of an appellate court, merely expresses the practice of the courts in refusing to reopen what has been decided. Such a rule is "necessary to enable an appellate court to perform its duties satisfactorily and efficiently, which would be impossible if a question, once considered and decided by it, were to be litigated anew in the same case upon any and every subsequent appeal." Again, the rule is necessary as a matter of policy to end litigation. "There would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions, or speculate of chances from changes in its members." x x x.[12]

The law of the case doctrine applies in a situation where an appellate court has made a ruling on a question on appeal and thereafter remands the case to the lower court for further proceedings; the question settled by the appellate court becomes the law of the case at the lower court and in any subsequent appeal.[13]     

Contrary to respondents’ assertion, the law of the case doctrine does not find application in the case at bar simply because what was involved in G.R. No. 149534 was a criminal proceeding while what we have before us is an administrative case.  Although both cases possess a similar set of facts, allegations and arguments, they do not serve the same objectives and do not require the same quantum of evidence necessary for a finding of guilt or conviction/liability which makes them entirely different cases altogether and, therefore, beyond the purview of the legal principle of law of the case.  

In administrative cases, substantial evidence is required to support any finding. Substantial evidence is such relevant evidence as a reasonable mind may accept as adequate to support a conclusion.  The requirement is satisfied where there is reasonable ground to believe that the petitioner is guilty of the act or omission complained of, even if the evidence might not be overwhelming.[14]  While in criminal cases, the accused is entitled to an acquittal, unless his guilt is shown beyond a reasonable doubt.[15]  Proof beyond reasonable doubt does not mean evidence that which produces absolute certainty; only moral certainty is required or that degree of proof which produces conviction in an unprejudiced mind.[16]

x x x."

Quasi delict; negligence - Smith Bell Dodwell Shipping Agency Corp vs Borja : 143008 : June 10, 2002 : J. Panganiban : Third Division

See - Smith Bell Dodwell Shipping Agency Corp vs Borja : 143008 : June 10, 2002 : J. Panganiban : Third Division


"x x x.

Negligence is conduct that creates undue risk of harm to another. It is the failure to observe that degree of care, precaution and vigilance that the circumstances justly demand, whereby that other person suffers injury.[14] Petitioner’s vessel was carrying chemical cargo -- alkyl benzene and methyl methacrylate monomer.[15]While knowing that their vessel was carrying dangerous inflammable chemicals, its officers and crew failed to take all the necessary precautions to prevent an accident. Petitioner was, therefore, negligent.

The three elements of quasi delict are: (a) damages suffered by the plaintiff, (b) fault or negligence of the defendant, and (c) the connection of cause and effect between the fault or negligence of the defendant and the damages inflicted on the plaintiff.[16] All these elements were established in this case. Knowing fully well that it was carrying dangerous chemicals, petitioner was negligent in not taking all the necessary precautions in transporting the cargo.

As a result of the fire and the explosion during the unloading of the chemicals from petitioner’s vessel, Respondent Borja suffered the following damage: and injuries: “(1) chemical burns of the face and arms; (2) inhalation of fumes from burning chemicals; (3) exposure to the elements [while] floating in sea water for about three (3) hours; (4) homonymous hemianopsia or blurring of the right eye [which was of] possible toxic origin; and (5) [c]erebral infract with neo-vascularization, left occipital region with right sided headache and the blurring of vision of right eye.”[17]

Hence, the owner or the person in possession and control of a vessel and the vessel are liable for all natural and proximate damage caused to persons and property by reason of negligent management or navigation.[18]

x x x."

Loss of earning capacity; formula - Smith Bell Dodwell Shipping Agency Corp vs Borja : 143008 : June 10, 2002 : J. Panganiban : Third Division

See - Smith Bell Dodwell Shipping Agency Corp vs Borja : 143008 : June 10, 2002 : J. Panganiban : Third Division


"x x x.

Second Issue:

Amount of Liability

Petitioner insists that Borja is not entitled to the full amount of damages awarded by the lower courts. It disputes the use of his gross earning as basis for the computation of the award for loss of earning capacity. Both courts, in computing the value of such loss, used the remaining years of the victim as a government employee and the amount he had been receiving per annum at the time of the incident.

Counsel for Respondent Borja, on the other hand, claims that petitioner had no cause to complain, because the miscomputation had ironically been in its favor. The multiplier used in the computation was erroneously based on the remaining years in government service, instead of the life expectancy, of the victim. Borja’s counsel also points out that the award was based on the former’s meager salary in 1987, or about 23 years ago when the foreign exchange was still P14 to $1. Hence, the questioned award is consistent with the primary purpose of giving what is just, moral and legally due the victim as the aggrieved party.

Both parties have a point. In determining the reasonableness of the damages awarded under Article 1764 in conjunction with Article 2206 of the Civil Code, the factors to be considered are: (1) life expectancy (considering the health of the victim and the mortality table which is deemed conclusive) and loss of earning capacity; (b) pecuniary loss, loss of support and service; and (c) moral and mental sufferings.[19] The loss of earning capacity is based mainly on the number of years remaining in the person’s expected life span. In turn, this number is the basis of the damages that shall be computed and the rate at which the loss sustained by the heirs shall be fixed.[20]

The formula for the computation of loss of earning capacity is as follows:[21]

Net earning capacity = Life expectancy x [Gross Annual Income - Living Expenses (50% of gross annual income)], where life expectancy = 2/3 (80 - the age of the deceased).[22]

Petitioner is correct in arguing that it is net income (or gross income less living expenses) which is to be used in the computation of the award for loss of income.Villa Rey Transit v. Court of Appeals[23] explained that “the amount recoverable is not the loss of the entire earning, but rather the loss of that portion of the earnings which the beneficiary would have received.” Hence, in fixing the amount of the said damages, the necessary expenses of the deceased should be deducted from his earnings.

In other words, only net earnings, not gross earnings, are to be considered; that is, the total of the earnings less expenses necessary in the creation of such earnings or income, less living and other incidental expenses. When there is no showing that the living expenses constituted a smaller percentage of the gross income, we fix the living expenses at half of the gross income. To hold that one would have used only a small part of the income, with the larger part going to the support of one’s children, would be conjectural and unreasonable.[24]

Counsel for Respondent Borja is also correct in saying that life expectancy should not be based on the retirement age of government employees, which is pegged at 65. In Negros Navigation Co, Inc. v. CA,[25] the Court resolved that in calculating the life expectancy of an individual for the purpose of determining loss of earning capacity under Article 2206(1) of the Civil Code, it is assumed that the deceased would have earned income even after retirement from a particular job.

Respondent Borja should not be situated differently just because he was a government employee. Private employees, given the retirement packages provided by their companies, usually retire earlier than government employees; yet, the life expectancy of the former is not pegged at 65 years.

Petitioner avers that Respondent Borja died nine years after the incident and, hence, his life expectancy of 80 years should yield to the reality that he was only 59 when he actually died.

We disagree. The Court uses the American Experience/Expectancy Table of Mortality or the Actuarial or Combined Experience Table of Mortality, which consistently pegs the life span of the average Filipino at 80 years, from which it extrapolates the estimated income to be earned by the deceased had he or she not been killed.[26]

Respondent Borja’s demise earlier than the estimated life span is of no moment. For purposes of determining loss of earning capacity, life expectancy remains at 80. Otherwise, the computation of loss of earning capacity will never become final, being always subject to the eventuality of the victim’s death. The computation should not change even if Borja lived beyond 80 years. Fair is fair.

Based on the foregoing discussion, the award for loss of earning capacity should be computed as follows:

Loss of earning = [2 (80-50)] x [(P2,752x12)-16,512]

    capacity                 3

                               = P330,240

Having been duly proven, the moral damages and attorney’s fees awarded are justified under the Civil Code’s Article 2219, paragraph 2; and Article 2208, paragraph 11, respectively.

x x x."

The contents of the two resolutions submitted by respondent Province do not support its conclusion that the subsequent favorable endorsement of the LGUs had already addressed all the issues raised and rendered the instant petition moot and academic. - G.R. No. 196870

See - G.R. No. 196870


"x x x.

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

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

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

Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay[134] is even more specific.  It reads in part:

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

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

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

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

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

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

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

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

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

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

The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent Province to comply with on pain of revocation of its endorsement of the project, including the need to conduct a comprehensive study on the environmental impact of the reclamation project, which is the heart of the petition before us.  Therefore, the contents of the two resolutions submitted by respondent Province do not support its conclusion that the subsequent favorable endorsement of the LGUs had already addressed all the issues raised and rendered the instant petition moot and academic.

 x x x."

Applicability of the rule on exhaustion of administrative remedies - G.R. No. 196870

See - G.R. No. 196870


"x x x.

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

            The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not applicable (1) where the question in dispute is purely a legal one, or (2) where the controverted act is patently illegal or was performed without jurisdiction or in excess of jurisdiction; or (3) where the respondent is a department secretary, whose acts as an alter ego of the President bear the implied or assumed approval of the latter, unless actually disapproved by him, or (4) where there are circumstances indicating the urgency of judicial intervention, - Gonzales vs. Hechanova, L-21897, October 22, 1963, 9 SCRA 230; Abaya vs. Villegas, L-25641, December 17, 1966, 18 SCRA; Mitra vs. Subido, L-21691, September 15, 1967, 21 SCRA 127.

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

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

Although petitioner was not a party to the proceedings where the decision to issue an ECC was rendered, it stands to be aggrieved by the decision,[139] because it claims that the reclamation of land on the Caticlan side would unavoidably adversely affect the Boracay side, where petitioner’s members own establishments engaged in the tourism trade.  As noted earlier, petitioner contends that the declared objective of the reclamation project is to exploit Boracay’s tourism trade because the project is intended to enhance support services thereto; however, this objective would not be achieved since the white-sand beaches for which Boracay is famous might be negatively affected by the project. Petitioner’s conclusion is that respondent Province, aided and abetted by respondents PRA and DENR-EMB RVI, ignored the spirit and letter of our environmental laws, and should thus be compelled to perform their duties under said laws.

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

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

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

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

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

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

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

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

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

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

x x x."

Environmental laws vis-a-vis reclamation projects. - G.R. No. 196870

See - G.R. No. 196870


"x x x.

Nature of the project

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

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

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

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

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

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

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

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

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

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

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

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

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

3.      Terminal annex building            - 250 sq m

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

5.      Health and wellness center

6.      Access road          - 12 m (wide)

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

8.      Rehabilitation of existing jetty port and terminal

                        x x x x

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

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

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

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

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

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

x x x x

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

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

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

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The Local Government Code establishes the duties of national government agencies in the maintenance of ecological balance, and requires them to secure prior public consultation and approval of local government units for the projects described therein. - G.R. No. 196870

See - G.R. No. 196870


"x x x.

Lack of prior public consultation

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

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

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

Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the duty of every national agency or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.

Section 27. Prior Consultations Required. - No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.

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

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and programs whose effects are among those enumerated in Section 26 and 27, to wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause the depletion of non-renewable resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may eradicate certain animal or plant species from the face of the planet; and (6) other projects or programs that may call for the eviction of a particular group of people residing in the locality where these will be implemented. Obviously, none of these effects will be produced by the introduction of lotto in the province of Laguna.[152] (Emphasis added.)

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

          Our ruling in Province of Rizal v. Executive Secretary[154] is instructive:

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

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

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

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

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

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

Based on the above, therefore, prior consultations and prior approval are required by law to have been conducted and secured by the respondent Province.  Accordingly, the information dissemination conducted months after the ECC had already been issued was insufficient to comply with this requirement under the Local Government Code.  Had they been conducted properly, the prior public consultation should have considered the ecological or environmental concerns of the stakeholders and studied measures alternative to the project, to avoid or minimize adverse environmental impact or damage.  In fact, respondent Province once tried to obtain the favorable endorsement of the Sangguniang Bayan of Malay, but this was denied by the latter.  

          Moreover, DENR DAO 2003-30 provides:

5.3       Public Hearing / Consultation Requirements

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

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

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

          The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08.  However, we still find that the LGC requirements of consultation and approval apply in this case.  This is because a Memorandum Circular cannot prevail over the Local Government Code, which is a statute and which enjoys greater weight under our hierarchy of laws.

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

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

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

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

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

x x x x

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

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

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

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

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

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

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

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