CHAVEZ VS NHA

FACTS:

On August 5, 2004, former Solicitor General Francisco Chavez, filed an instant petition raising constitutional issues on the JVA entered by National Housing Authority and R-II Builders, Inc.

On March 1, 1988, then-President Cory Aquino issued Memorandum order No. (MO) 161 approving and directing implementation of the Comprehensive and Integrated Metropolitan Manila Waste Management Plan.  During this time, Smokey Mountain, a wasteland in Tondo, Manila, are being made residence of many Filipinos living in a subhuman state.

As presented in MO 161, NHA prepared feasibility studies to turn the dumpsite into low-cost housing project, thus, Smokey Mountain Development and Reclamation Project (SMDRP), came into place.  RA 6957 (Build-Operate-Transfer Law) was passed on July 1990 declaring the importance of private sectors as contractors in government projects.  Thereafter, Aquino proclaimed MO 415 applying RA 6957 to SMDRP, among others.  The same MO also established EXECOM and TECHCOM in the execution and evaluation of the plan, respectively, to be assisted by the Public Estates Authority (PEA).

Notices of public bidding to become NHA’s venture partner for SMDRP were published in newspapers in 1992, from which R-II Builders, Inc. (RBI) won the bidding process.  Then-President Ramos authorized NHA to enter into a Joint Venture Agreement with RBI.

Under the JVA, the project involves the clearing of Smokey Mountain for eventual development into a low cost housing complex and industrial/commercial site.  RBI is expected to fully finance the development of Smokey Mountain and reclaim 40 hectares of the land at the Manila Bay Area.  The latter together with the commercial area to be built on Smokey Mountain will be owned by RBI as enabling components.  If the project is revoked or terminated by the Government through no fault of RBI or by mutual agreement, the Government shall compensate RBI for its actual expenses incurred in the Project plus a reasonable rate of return not exceeding that stated in the feasibility study and in the contract as of the date of such revocation, cancellation, or termination on a schedule to be agreed upon by both parties.

To summarize, the SMDRP shall consist of Phase I and Phase II.  Phase I of the project involves clearing, levelling-off the dumpsite, and construction of temporary housing units for the current residents on the cleared and levelled site.  Phase II involves the construction of a fenced incineration area for the on-site disposal of the garbage at the dumpsite.

Due to the recommendations done by the DENR after evaluations done, the JVA was amended and restated (now ARJVA) to accommodate the design changes and additional work to be done to successfully implement the project.  The original 3,500 units of temporary housing were decreased to 2,992.  The reclaimed land as enabling component was increased from 40 hectares to 79 hectares, which was supported by the issuance of Proclamation No. 465 by President Ramos.  The revision also provided for the 119-hectare land as an enabling component for Phase II of the project.

Subsequently, the Clean Air Act was passed by the legislature which made the establishment of an incinerator illegal, making the off-site dumpsite at Smokey Mountain necessary.   On August 1, 1998, the project was suspended, to be later reconstituted by President Estrada in MO No. 33.

On August 27, 2003, the NHA and RBI executed a Memorandum of Agreement whereby both parties agreed to terminate the JVA and subsequent agreements.  During this time, NHA reported that 34 temporary housing structures and 21 permanent housing structures had been turned over by RBI. 

ISSUES:

Whether respondents NHA and RBI have been granted the power and authority to reclaim lands of the public domain as this power is vested exclusively in PEA as claimed by petitioner

Whether respondents NHA and RBI were given the power and authority by DENR to reclaim foreshore and submerged lands

Whether respondent RBI can acquire reclaimed foreshore and submerged lands considered as alienable and outside the commerce of man

Whether respondent RBI can acquire reclaimed lands when there was no declaration that said lands are no longer needed for public use

Whether there is a law authorizing sale of reclaimed lands

Whether the transfer of reclaimed lands to RBI was done by public bidding

Whether RBI, being a private corporation, is barred by the Constitution to acquire lands of public domain

Whether respondents can be compelled to disclose all information related to the SMDRP

Whether the operative fact doctrine applies to the instant position

HELD:

Executive Order 525 reads that the PEA shall be primarily responsible for integrating, directing, and coordinating all reclamation projects for and on behalf of the National Government.  This does

not mean that it shall be responsible for all.  The requisites for a valid and legal reclamation project are approval by the President (which were provided for by MOs), favourable recommendation of PEA (which were seen as a part of its recommendations to the EXECOM), and undertaken either by PEA or entity under contract of PEA or by the National Government Agency (NHA is a government agency whose authority to reclaim lands under consultation with PEA is derived under PD 727 and RA 7279).

Notwithstanding the need for DENR permission, the DENR is deemed to have granted the authority to reclaim in the Smokey Mountain Project for the DENR is one of the members of the EXECOM which provides reviews for the project.  ECCs and Special Patent Orders were given by the DENR which are exercises of its power of supervision over the project.  Furthermore, it was the President via the abovementioned MOs that originally authorized the reclamation.  It must be noted that the reclamation of lands of public domain is reposed first in the Philippine President.

The reclaimed lands were classified alienable and disposable via MO 415 issued by President Aquino and Proclamation Nos. 39 and 465 by President Ramos.

Despite not having an explicit declaration, the lands have been deemed to be no longer needed for public use as stated in Proclamation No. 39 that these are to be “disposed to qualified beneficiaries.”  Furthermore, these lands have already been necessarily reclassified as alienable and disposable lands under the BOT law.

Letter I of Sec. 6 of PD 757 clearly states that the NHA can acquire property rights and interests and encumber or otherwise dispose of them as it may deem appropriate.

There is no doubt that respondent NHA conducted a public bidding of the right to become its joint venture partner in the Smokey Mountain Project.  It was noted that notices were published in national newspapers.  The bidding proper was done by the Bids and Awards Committee on May 18, 1992.

RA 6957 as amended by RA 7718 explicitly states that a contractor can be paid “a portion as percentage of the reclaimed land” subject to the constitutional requirement that only Filipino citizens or corporation with at least 60% Filipino equity can acquire the same.  In addition, when the lands were transferred to the NHA, these were considered Patrimonial lands of the state, by which it has the power to sell the same to any qualified person.

This relief must be granted.  It is the right of the Filipino people to information on matters of public concerned as stated in Article II, Sec. 28, and Article III, Sec. 7 of the 1987 Constitution.

When the petitioner filed the case, the JVA had already been terminated by virtue of MOA between RBI and NHA.  The properties and rights in question after the passage of around 10 years from the start of the project’s implementation cannot be disturbed or questioned.  The petitioner, being the Solicitor General at the time SMDRP was formulated, had ample opportunity to question the said project, but did not do so.  The moment to challenge has passed.

GMMSWM VS. JANCOM

The present petition for review on certiorari challenges the Decision[1] dated December 19, 2003 and Resolution[2] dated May 11, 2004 of the Court of Appeals (CA)[3] in CA-G.R. SP No. 78752 which denied the petition for certiorari filed by herein petitioners Greater Metropolitan Manila Solid Waste Management Committee (GMMSWMC) and the Metropolitan Manila Development Authority (MMDA) and their Motion for Reconsideration, respectively.

 In 1994, Presidential Memorandum Order

No. 202 was issued by then President Fidel V. Ramos creating an Executive Committee to oversee and develop waste-to-energy projects for the waste disposal sites in San Mateo, Rizal and Carmona, Cavite under the Build-Operate-Transfer (BOT) scheme.

 Respondent Jancom International

Development Projects Pty. Limited of Australia (Jancom International) was one of the bidders for the San Mateo Waste Disposal Site. It subsequently entered into a partnership with Asea Brown Boveri under the firm name JANCOM Environmental Corporation (JANCOM), its co-respondent.

 On February 12, 1997, the above-said

Executive Committee approved the recommendation of the Pre-qualification, Bids and Awards Committee to declare JANCOM as the sole complying bidder for the San Mateo Waste Disposal Site.

 On December 19, 1997, a Contract for the

BOT Implementation of the Solid Waste Management Project for the San Mateo, Rizal Waste Disposal Site[4] (the contract) was entered into by the Republic of the Philippines, represented by the Presidential Task Force on Solid Waste Management through then Department of Environment and Natural Resources Secretary Victor Ramos, then Cabinet Office for Regional Development-National Capital Region Chairman Dionisio dela Serna, and then MMDA Chairman ProsperoOreta on one hand, and JANCOM represented by its Chief Executive Officer Jorge Mora Aisa and its Chairman Jay Alparslan, on the other.

 On March 5, 1998, the contract was

submitted for approval to President Ramos who subsequently endorsed it to then incoming President Joseph E. Estrada.

 Owing to the clamor of the residents of

Rizal, the Estrada administration ordered the closure of the San Mateo landfill. Petitioner GMMSWMC thereupon adopted a Resolution not to pursue the contract with JANCOM, citing as reasons therefor the passage of Republic Act 8749, otherwise known as the Clean Air Act of 1999, the non-availability of the San Mateo site, and costly tipping fees.[5]

 The Board of Directors of Jancom

International thereafter adopted on January 4, 2000 a Resolution[6] authorizing Atty. Manuel Molina to act as legal counsel for respondents and determine and file such legal action as deemed necessary before the Philippine courts in any manner he may deem appropriate against petitioners.

 The Board of Directors of JANCOM also

adopted a Resolution[7] on February 7, 2000 granting Atty. Molina similar authorization to file legal action as may be necessary to protect its interest with respect to the contract.

 On March 14, 2000, respondents filed a

petition for certiorari[8] with the Regional Trial Court (RTC) of Pasig City where it was docketed as Special Civil Action No. 1955, to declare the GMMSWMC Resolution and the acts of the MMDA calling for bids for and authorizing the forging of a new contract for the Metro Manila waste management as illegal, unconstitutional and void and to enjoin petitioners from implementing the Resolution and making another award in lieu thereof.

 By Decision[9] of May 29, 2000, Branch 68

of the Pasig City RTC found in favor of respondents.[10]

 Petitioners thereupon assailed the RTC

Decision via petition for certiorari[11] with prayer for a temporary restraining order with the CA, docketed as CA-G.R. SP No. 59021.

 By Decision[12] of November 13, 2000, the

CA denied the petition for lack of merit and affirmed in toto the May 29, 2000 RTC Decision. Petitioners Motion for Reconsideration was denied, prompting them to file a petition for review before this Court, docketed as G.R. No. 147465.

 By Decision[13] of January 30, 2002 and

Resolution[14] of April 10, 2002, this Court affirmed the November 13, 2001 CA Decision and declared the contract valid and perfected, albeit ineffective

and   unimplementable   pending approval by the President.

 JANCOM and the MMDA later purportedly

entered into negotiations to modify certain provisions of the contract which were embodied in a draft Amended Agreement[15]dated June 2002. The draft Amended Agreement bore no signature of the parties.

 Respondents, through Atty. Molina,

subsequently filed before Branch 68 of the Pasig City RTC an Omnibus Motion[16] dated July 29, 2002 praying that: (1) an alias writ of execution be issued prohibiting and enjoining petitioners and their representatives from calling for, accepting, evaluating, approving, awarding, negotiating or implementing all bids, awards and contracts involving other Metro Manila waste management projects intended to be pursued or which are already being pursued; (2) the MMDA, through its Chairman Bayani F. Fernando, be directed to immediately forward and recommend the approval of the Amended Agreement to President Gloria Macapagal Arroyo; (3) Chairman Fernando be ordered to personally appear before the court and explain his acts and public pronouncements which are in direct violation and gross defiance of the final and executory May 29, 2000 RTC Decision; (4) the Executive Secretary and the Cabinet Secretaries of the departments-members of the National Solid Waste Management Commission be directed to submit the contract within 30 days from notice to the President for signature and approval and if the latter chooses not to sign or approve the contract, the Executive Secretary be made to show cause therefor; and (5) petitioners be directed to comply with and submit their written compliance with their obligations specifically directed under the provisions of Article 18, paragraphs 18.1, 18.1.1 (a), (b), (c) and (d) of the contract within 30 days from notice.[17]

 To the Omnibus Motion petitioners filed

their Opposition[18] which merited JANCOMs Reply[19] filed on August 19, 2002.

 On August 21, 2002, Atty. Simeon M.

Magdamit, on behalf of Jancom International, filed before the RTC an Entry of Special Appearance and Manifestation with Motion to Reject the Pending Omnibus Motion[20] alleging that: (1) the Omnibus Motion was never approved by Jancom International; (2) the Omnibus Motion was initiated by lawyers whose services had already been terminated, hence, were unauthorized to represent it; and (3) the agreed judicial venue for dispute resolution relative to the implementation of the contract is the International Court of Arbitration in the United Kingdom pursuant to Article 16.1[21] of said contract.

 

In the meantime, on November 3, 2002, the MMDA forwarded the contract to the Office of the President for appropriate action,[22] together with MMDA Resolution No. 02-18[23] dated June 26, 2002, Recommending to her Excellency the President of the Republic of the Philippines to Disapprove the Contract Entered Into by the Executive Committee of the Presidential Task Force on Waste Management with Jancom Environmental Corporation and for Other Purposes.

 By Order[24] of November 18, 2002, the

RTC noted the above-stated Entry of Special Appearance of Atty. Magdamit for Jancom International and denied the Motion to Reject Pending Omnibus Motion for lack of merit. Jancom International filed on December 9, 2002 a Motion for Reconsideration[25] which was denied for lack of merit by Order[26] of January 8, 2003.

 Petitioners and respondents then filed

their Memoranda[27] on May 23, 2003 and May 26, 2003, respectively.

 By Order[28] of June 11, 2003, the RTC

granted respondents Omnibus Motion in part. The dispositive portion of the Order reads, quoted verbatim:

 WHEREFORE, in view of

the foregoing, let an Alias Writ of Execution immediately issue and the Clerk of Court and Ex-Oficio Sheriff or any o[f] her Deputies is directed to implement the same within sixty (60) days from receipt thereof.

 Thus, any and all such bids

or contracts entered into by respondent MMDA with third parties covering the waste disposal and management within the Metro Manila after August 14, 2000 are hereby declared NULL and VOID. Respondents are henceforth enjoined and prohibited, with a stern warning, from entering into any such contract with any third party whether directly or indirectly, in violation of the contractual rights of petitioner JANCOM under the BOT Contract Award, consistent with the Supreme Courts Decision of January 30, 2002.

 Respondent MMDA is

hereby directed to SUBMIT the Amended Agreement concluded by petitioners with the previous MMDA officials, or in its discretion if it finds [it] more advantageous to

the government, to require petitioners to make adjustments in the Contract in accordance with existing environmental laws and other relevant concerns, and thereafter forward the Amended Agreement for signature and approval by the President of the Philippines. The concerned respondents are hereby further directed to comply fully and in good faith with its institutional obligations or undertakings as provided in Article 18 of the BOT Contract.

 Let a copy of this Order be

furnished the Office of the Clerk of Court and the Commission on Audit for its information and guidance.

 SO ORDERED.

[29] (Emphasis in the original) 

 On June 23, 2003 the RTC issued an Alias

Writ of Execution[30] reading: 

WHEREAS, on May 29, 2000, a Decision was rendered by this Court in the above-entitled case, the pertinent portions of which is [sic] hereunder quoted as follows:

 WHEREFORE

, in view of the foregoing, the Court hereby renders judgment in favor of petitioners JANCOM ENVIRONMENTAL CORP and JANCOM INTERNATIONAL DEVELOPMENT PROJECTS PTY., LIMITED OF AUSTRALIAS [sic], and against respondents GREATER METROPOLITAN MANILA SOLID WASTE MANAGEMENT COMM., and HON. ROBERTO N. AVENTAJADO, in his capacity as Chairman of the said Committee, METRO MANILA DEVELOPMENT AUTHORITY and HON.

JEJOMAR C. BINAY, in his capacity as Chairman of said Authority, declaring the Resolution of respondent Greater Metropolitan Manila Solid Waste Management Committee disregarding petitioners BOT Award Contract and calling for bids for and authorizing a new contract for the Metro Manila waste management ILLEGAL an[d] VOID.

 Moreover,

respondents and their agents are hereby PROHIBITED and ENJOINED from implementing the aforesaid Resolution and disregarding petitioners BOT Award Contract and from making another award in its place.

 Let it be

emphasized that this Court is not preventing or stopping the government from implementing infrastructure projects as it is aware of the proscription under PD 1818. On the contrary, the Court is paving the way for the necessary and modern solution to the perennial garbage problem that has been the major headache of the government and in the process would serve to attract more investors in the country.

 SO

ORDERED. WHEREAS, on August 7,

2000, petitioners through counsel

filed a Motion for Execution which the Court GRANTED in its Order dated August 14, 2000;

 WHEREAS, as a

consequence thereof, a Writ of Execution was issued on August 14, 2000 and was duly served upon respondents as per Sheriffs Return dated August 27, 2000;

 WHEREAS, ON July 29,

2002, petitioners through counsel filed an Omnibus Motion, praying, among others, for the issuance of an Alias Writ of Execution which the CourtGRANTED in its Order dated June 11, 2003, the dispositive portion of which reads as follows: WHEREFORE, in view of

the foregoing, let an Alias Writ of Execution immediately issue and the Clerk of Court and Ex-Oficio Sheriff or any of her Deputies is directed to implement the same within sixty (60) days from receipt thereof.

 Thus, any and all such bids

or contracts entered into by respondent MMDA [with] third parties covering the waste disposal and management within the Metro Manila after August 14, 2000 are hereby declared NULL and VOID. Respondents are henceforth enjoined and prohibited, with a stern warning, from entering into any such contract with any third party whether directly or indirectly, in violation of the contractual rights of petitioner Jancom under the BOT Contract Award, consistent with the Supreme Courts Decision of January 30, 2002.

 Respondent MMDA is hereby

directed to SUBMIT the Amended Agreement concluded by petitioners with the previous MMDA officials, or in its discretion if it finds [it] more advantageous to the government, to require petitioners to make adjustments in the Contract in accordance with existing environmental laws and other relevant concerns, and thereafter forward the Amended Agreement for signature and approval by the President of the

Philippines. The concerned respondents are hereby further directed to comply fully and in good faith with its institutional obligations or undertakings as provided in Article 18 of the BOT Contract.

 Let a copy of this Order be

furnished the Office of the Clerk of Court and the Commission on Audit for its information and guidance.

 SO

ORDERED. 

x x x x (Emphasis in the original)

  By letter[31] of August 15, 2003, Chairman

Fernando advised Sheriff Alejandro Q. Loquinario of the Office of the Clerk of Court and Ex-Oficio Sheriff, Pasig City RTC that:

 1.      MMDA has not entered into a

new contract for solid waste management in lieu of JANCOMs Contract.

 2.      JANCOMs Contract has been

referred to the Office of the President for appropriate action.

 3.      Without the Presidents

approval, JANCOMs Contract cannot be implemented.[32]

 Petitioners later challenged the RTC June

11, 2003 Order via petition for certiorari[33] with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction before the CA. They subsequently filed an Amended Petition[34] on September 26, 2003.

 To the Amended Petition JANCOM filed

on October 8, 2003 its Comment[35] after which petitioners filed their Reply[36] on November 24, 2003.

 By the challenged Decision of December

19, 2003, the CA denied the petition and affirmed the June 11, 2003 RTC Order in this wise:

 The Supreme Court ruled

that the Jancom contract has the force of law and the parties must abide in good faith by their respective contractual commitments. It is precisely this pronouncement that the alias writ of execution issued by respondent judge seeks to enforce. x x x

x x x x The fact that the Jancom

contract has been declared unimplementable without the Presidents signature, would not excuse petitioners failure to comply with their undertakings under Article 18 of the contract. x x x

 x x x x Petitioners complain that

respondent judge focused only on requiring them to perform their supposed obligations under Article 18 of the contract when private respondents are also required thereunder to post a Performance Security acceptable to the Republic in the amount allowed in the BOT Law. Petitioners complaint is not justified. x x x

 x x x x 

It cannot x x x be said that respondent judge had been unfair or one-sided in directing only petitioners to fulfill their own obligations under Article 18 of the Jancom contract.Compliance with private respondents obligations under the contract had not yet become due. 

x x x x 

There is no debate that the trial courts Decision has attained finality. Once a judgment becomes final and executory, the prevailing party can have it executed as a matter of right and the granting of execution becomes a mandatory or ministerial duty of the court. After a judgment has become final and executory, vested rights are acquired by the winning party. Just as the losing party has the right to file an appeal within the prescribed period, so also the winning party has the correlative right to enjoy the finality of the resolution of the case.

 It is true that the ministerial duty

of the court to order the execution of a final and executory judgment admits of exceptions as (a) where it becomes imperative in the higher interest of justice to direct the suspension of its execution; or (b) whenever it is necessary to accomplish the aims of justice; or (c) when certain facts and circumstances transpired after the judgment became final which could render the execution of the judgment unjust. Petitioners have not

shown that any of these exceptions exists to prevent the mandatory execution of the trial courtsDecision.[37] (Italics in the original)

  Petitioners Motion for

Reconsideration[38] having been denied by the CA by Resolution of May 11, 2004, the present petition for review[39] was filed on July 12, 2004positing that:

 THE COURT OF APPEALS GRAVELY ERRED IN UPHOLDING THE LOWER COURT AND IN DISREGARDING THE FOLLOWING PROPOSITIONS: I THE SUBJECT CONTRACT IS INEFFECTIVE AND UNIMPLEMENTABLE UNTIL AND UNLESS IT IS APPROVED BY THE PRESIDENT. II THE SUBJECT CONTRACT ONLY COVERS THE DISPOSITION OF 3,000 TONS OF SOLID WASTE A DAY.III THE ALLEGED AMENDED AGREEMENT IS ONLY A DRAFT OR PROPOSAL SUBMITTED BY RESPONDENTS. IV RESPONDENTS MUST ALSO BE MADE TO COMPLY WITH THEIR CONTRACTUAL COMMITMENTS.[40] (Underscoring supplied)JANCOM filed on September 20, 2004 its

Comment[41] on the petition to which petitioners filed their Reply[42] on January 28, 2005.

 On May 4, 2005, Jancom International filed

its Comment,[43] reiterating its position that it did not authorize the filing before the RTC by Atty. Molina of the July 29, 2002Omnibus Motion that impleaded it as party-movant.

 On July 7, 2005, petitioners filed their

Reply[44] to Jancom Internationals Comment. Petitioners argue that since the contract

remains unsigned by the President, it cannot yet be executed. Ergo, they conclude, the proceedings which resulted in the issuance of an alias writ of execution ran afoul of the [January 30, 2002] decision of [the Supreme] Court in G.R. No. 147465.[45]

 Petitioners go on to argue that since the

contract covers only 3,000 tons of garbage per day while Metro Manila generates at least 6,000 tons of solid waste a day, MMDA may properly bid out the other 3,000 tons of solid waste to other interested groups or entities.

 Petitioners moreover argue that the

alleged Amended Agreement concluded supposedly between JANCOM and former MMDA Chairman Benjamin Abalos is a mere scrap of paper, a mere draft or proposal submitted by JANCOM to the MMDA, no agreement on which was reached by the parties; and at all events, express authority ought to have first been accorded the MMDA to conclude such an amended agreement with JANCOM, the original contract having been concluded between the Republic of the Philippines and JANCOM.

 Finally, petitioners argue that respondents

should also be required to perform their commitments pursuant to Article 18[46] of the contract.

 The petition is impressed with merit in

light of the following considerations. Section 1, Rule 39 of the Rules of Court

provides: 

SECTION 1. Execution upon judgments or final orders. Execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected.

 If the appeal has been duly

perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party.

 The appellate court may, on

motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution.

  Once a judgment becomes final, it is basic

that the prevailing party is entitled as a matter of right to a writ of execution the issuance of which

is the trial courts ministerial duty, compellable by mandamus.[47]

 There are instances, however, when an

error may be committed in the course of execution proceedings prejudicial to the rights of a party. These instances call for correction by a superior court, as where:

 1)      the writ of execution varies the

judgment;2)      there has been a change in the

situation of the parties making execution inequitable or unjust;

3)      execution is sought to be enforced against property exempt from execution;

4)      it appears that the controversy has never been submitted to the judgment of the court;

5)      the terms of the judgment are not clear enough and there remains room for interpretation thereof; or

6)      it appears that the writ of execution has been improvidently issued, or that it is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied, or the writ was issued without authority.[48] (Emphasis and Underscoring supplied) 

 That a writ of execution must conform to

the judgment which is to be executed, substantially to every essential particular thereof,[49] it is settled. It may not thus vary the terms of the judgment it seeks to enforce,[50] nor go beyond its terms. Where the execution is not in harmony with the judgment which gives it life and exceeds it, it has no validity.[51]

 This Courts January 30, 2002 Decision

in G.R. No. 147465 held:We, therefore, hold that the

Court of Appeals did not err when it declared the existence of a valid and perfected contract between the Republic of the Philippines and JANCOM. There being a perfected contract, MMDA cannot revoke or renounce the same without the consent of the other. From the moment of perfection, the parties are bound not only to the fulfillment of what has been expressly stipulated but also to all the consequences which, according to their nature, may be in keeping with good faith, usage, and law (Article 1315, Civil Code). The contract has the force of law between the parties and they are expected to abide in good

faith by their respective contractual commitments, not weasel out of them. Just as nobody can be forced to enter into a contract, in the same manner, once a contract is entered into, no party can renounce it unilaterally or without the consent of the other. It is a general principle of law that no one may be permitted to change his mind or disavow and go back upon his own acts, or to proceed contrary thereto, to the prejudice of the other party. Nonetheless, it has to be repeated that although the contract is a perfected one, it is still ineffective or   unimplementable   until and unless it is approved by the President . [52]  (Emphasis and Underscoring supplied)

  This Courts April 10, 2002 Resolution also

in G.R. No. 147465 moreover held: 

x x x The only question before the Court is whether or not there is a valid and perfected contract between the parties. As to the necessity, expediency, and wisdom of the contract, these are outside the realm of judicial adjudication. These considerations are primarily and exclusively a matter for the President to decide. While the Court recognizes that the garbage problem is a matter of grave public concern, it can only declare that the contract in question is a valid and perfected one between the parties, but the same is still ineffective or   unimplementable   until and unless it is approved by the President, the contract itself providing that such approval by the President is necessary for its   effectivity .[53] (Emphasis and Underscoring supplied)

  Article 19 of the contract provides: 

Article 19. Effectivity. This Contract   shall become effective upon approval   by the President of the Republic of [the]   Philippines  pursuant to existing Laws subject to condition precedent in Article 18. This Contract shall remain in full force and effect for twenty five (25)

years subject to renewal for another twenty five (25) years from the date of Effectivity. Such renewal will be subject to mutual agreement of the parties and approval by the [P]resident of the Republic of [the] Philippines. (Emphasis and underscoring supplied)In issuing the alias writ of execution, the

trial court in effect ordered the enforcement of the contract despite this Courts unequivocal pronouncement that albeit valid and perfected, the contract shall become effective only upon approval by the President.

 Indubitably, the alias writ of execution

varied the tenor of this Courts judgment, went against essential portions and exceeded the terms thereof.

 x x x a lower court is

without supervisory jurisdiction to interpret or to reverse the judgment of the higher court x x x. A judge of a lower court cannot enforce different decrees than those rendered by the superior court. x x x The inferior court is bound by the decree as the law of the case, and must carry it into execution according to the mandate. They cannot vary it, or examine it for any other purpose than execution, or give any other or further relief, or review it upon any matter decided on appeal for error apparent, or intermeddle with it, further than to settle so much as has been remanded. x xx[54]

  The execution directed by the trial court

being out of harmony with the judgment, legal implications cannot save it from being found to be fatally defective.[55]

 Notably, while the trial court ratiocinated

that it issued on June 23, 2003 the alias writ to set into motion the legal mechanism for Presidential approval and signature,[56] it failed to take due consideration of the fact that during the pendency of the Omnibus Motion, the contract had earlier been forwarded for appropriate action on November 3, 2002 by Chairman Fernando to the Office of the President, with recommendation for its disapproval, which fact the trial court had been duly informed of through pleadings and open court manifestations.[57]

 

Additionally, it bears noting that the June 11, 2003 Order of the trial court is likewise indisputably defective in substance for having directed the submission of the draft Amended Agreement to the President.

 The appellate court, in affirming the June

11, 2003 Order of the trial court, overlooked the fact that the Amended Agreement was unsigned by the parties and it instead speculated and rationalized that the submission thereof to the President would at all events solve the mounting garbage problem in Metro Manila:

 We find that the submission

of the Amended Agreement to the President will break the impasse now existing between the parties which has effectively halted the governments efforts to address Metro Manilas mounting garbage problem. x x x

 As long as petitioners refuse

to deal with private respondents, the Metro Manila garbage problem will only continue to worsen. x x x

 That the Amended

Agreement could have well been negotiated, if not concluded between private respondents and the former MMDA administration, is not far-fetched. Petitioners do not dispute that the President had referred the Jancom contract to then MMDA Chairman Benjamin Abalos for recommendation. Petitioners also do not dispute that private respondents negotiated with the MMDA for the amendment of the contract.

 Besides, the Amended

Agreement does not veer away from the original Jancom contract. x x x[58]

  The Amended Agreement was, as

petitioners correctly allege, merely a draft document containing the proposals of JANCOM, subject to the approval of the MMDA. As earlier stated, it was not signed by the parties.[59]

The original contract itself provides in Article 17.6 that it may not be amended except by a written [c]ontract signed by the parties.[60]

 It is elementary that, being consensual, a

contract is perfected by mere consent.[61] The essence of consent is the conformity of the parties to the terms of the contract, the acceptance by one of the offer made by the

other;[62] it is the concurrence of the minds of the parties on the object and the cause which shall constitute the contract.[63] Where there is merely an offer by one party without acceptance by the other, there is no consent and the contract does not come into existence.[64]

 As distinguished from the original contract

in which this Court held in G.R. No. 147465: 

x x x the signing and execution of the contract by the parties clearly show that, as between the parties, there was concurrence of offer and acceptance with respect to the material details of the contract, thereby giving rise to the perfection of the contract. The execution and signing of the contract is not disputed by the parties x x x,[65]

  the parties did not, with respect to the Amended Agreement, get past the negotiation stage. No meeting of minds was established. While there was an initial offer made, there was no acceptance. Even JANCOM President Alfonso G. Tuzon conceded, by letter[66] of June 17, 2002 to Chairman Fernando, that the Amended Agreement was a mere proposal:

Apropos to all these, we are seeking an urgent EXECUTIVE SESSION on your best time and venue. We can thresh up major points to establish a common perspective based on data and merit.

 We are optimistic you shall

then consider with confidence the proposed Amended Contract which incorporates the adjustments we committed to as stated and earlier submitted to your Office during the incumbency of your predecessor, for evaluation and appropriate action by NEDA in compliance with the BOT Law and Article 18.1.1 of our contract.[67]

  While respondents aver that an

acceptance was made, they have not proffered any proof. While indeed the MMDA, by a letter[68] issued by then MMDA General Manager Jaime Paz, requested then Secretary of Justice Hernando B. Perez for his legal opinion on the draft Amended Agreement, nowhere in the letter is there any statement indicating that the MMDA, or the Republic of the Philippines for that matter,

had approved respondents proposals embodied in the said draft agreement.

 The pertinent portions of the letter read: Attention: HON. HERNANDO B. PEREZSecretary Subject: Request for Opinion

Regarding the Compromise Offer of Jancom Environmental Corporation for the Municipal Solid Waste Management of Metro Manila

 Dear Secretary Perez: 

This is to respectfully request for an opinion from your Honorable Office regarding the Compromise Proposal offered by JANCOM Environmental Corporation (JANCOM) in relation to its Contract for the BOT Implementation of the Waste Management Project for the San Mateo, Rizal Waste Disposal Site dated 19 December 1997 (hereinafter referred to as the BOT Contract for brevity) with the Republic of the Philippines.

 x x x x x x x this representation is

requesting your Honorable Office to render a legal opinion on the following:

 Does the offer of JANCOM to

temporarily set aside the waste-to-energy plant and implement only the other two major components of the BOT Contract amount to a novation of the BOT Contract, and therefore necessitating a re-bidding? If the same does not amount to a novation, by what authority may Jancom set aside temporarily a major component of the BOT Contract?

 x x x x[69]

  Only an absolute or unqualified

acceptance of a definite offer manifests the consent necessary to perfect a contract.[70] If at all, the MMDA letter only shows that the parties had not gone beyond the preparation stage, which is the period from the start of the

negotiations until the moment just before the agreement of the parties.[71] Obviously, other material considerations still remained before the Amended Agreement could be perfected. At any time prior to the perfection of a contract, unaccepted offers and proposals remain as such and cannot be considered as binding commitments.[72]

 Respecting petitioners argument that

respondents should be directed to comply with their commitments under Article 18 of the contract, this Court is not convinced.

 Article 18.2.1 of the contract provides: 18.2.1 The BOT COMPANY hereby undertakes to provide the following within 2 months from execution of this Contract as an effective document: a)      sufficient proof of the actual

equity contributions from the proposed shareholders of the BOT COMPANY in a total amount not less than PHP 500,000,000 in accordance with the BOT Law and the implementing rules and regulations;

 b)      sufficient proof of financial

commitment from a lending institution sufficient to cover total project cost in accordance with the BOT Law and the implementing rules and regulations;

c)      to support its obligation under this Contract, the BOT COMPANY shall submit a security bond to the CLIENT in accordance with the form and amount required under the BOT Law. (Underscoring supplied)

  As this Court held in G.R. No.

147465: 

As clearly stated in Article 18, JANCOM undertook to comply with the stated conditions within 2 months from execution of the Contract as an effective document. Since the President of the Philippines has not yet affixed his signature on the contract, the same has not yet become an effective document. Thus, the two-month period within which JANCOM should comply with the conditions has not yet started to

run. x x x[73] (Underscoring supplied)

  A final point. The argument raised against

the authority of Atty. Molina to file respondents Omnibus Motion before the RTC does not lie.

 Representation continues until the court

dispenses with the services of counsel in accordance with Section 26, Rule 138 of the Rules of Court.[74] No substitution of counsel of record is allowed unless the following essential requisites concur: (1) there must be a written request for substitution; (2) it must be filed with the written consent of the client; (3) it must be with the written consent of the attorney to be substituted; and (4) in case the consent of the attorney to be substituted cannot be obtained, there must be at least a proof of notice that the motion for substitution was served on him in the manner prescribed by the Rules of Court.[75]

 In the case at bar, there is no showing that

there was a valid substitution of counsel at the time Atty. Molina filed the Omnibus Motion on July 29, 2002 before the RTC, nor that he had priorly filed a Withdrawal of Appearance. He thus continued to enjoy the presumption of authority granted to him by respondents.

 While clients undoubtedly have the right

to terminate their relations with their counsel and effect a substitution or change at any stage of the proceedings, the exercise of such right is subject to compliance with the prescribed requirements. Otherwise, no substitution can be effective and the counsel who last appeared in the case before the substitution became effective shall still be responsible for the conduct of the case.[76] The rule is intended to ensure the orderly disposition of cases.[77]

 In the absence then of compliance with

the essential requirements for valid substitution of the counsel of record, Atty. Molina enjoys the presumption of authority granted to him by respondents.

 In light of the foregoing disquisition, a

discussion of the other matters raised by petitioners has been rendered unnecessary.

 WHEREFORE, the petition is GRANTED.

The Decision dated December 19, 2003 and Resolution dated May 11, 2004 of the Court of Appeals in CA-G.R. SP No. 78752 are REVERSED and SET ASIDE. The June 11, 2003 Order of the Regional Trial Court of Pasig, Branch 68 in SCA No. 1955 is declared NULL and VOID.

 SO ORDERED.

HENARES VS LTFRB

Petitioners challenge this Court to issue a writ of mandamus commanding respondents Land Transportation Franchising and Regulatory Board (LTFRB) and the Department of Transportation and Communications (DOTC) to require public utility vehicles (PUVs) to use compressed natural gas (CNG) as alternative fuel.

Citing statistics from the Metro Manila Transportation and Traffic Situation Study of 1996,1 the Environmental Management Bureau (EMB) of the National Capital Region,2 a study of the Asian Development Bank,3 the Manila Observatory4 and the Department of Environment and Natural Resources5 (DENR) on the high growth and low turnover in vehicle ownership in the Philippines, including diesel-powered vehicles, two-stroke engine powered motorcycles and their concomitant emission of air pollutants, petitioners attempt to present a compelling case for judicial action against the bane of air pollution and related environmental hazards.

Petitioners allege that the particulate matters (PM) – complex mixtures of dust, dirt, smoke, and liquid droplets, varying in sizes and compositions emitted into the air from various engine combustions – have caused detrimental effects on health, productivity, infrastructure and the overall quality of life. Petitioners particularly cite the effects of certain fuel emissions from engine combustion when these react to other pollutants. For instance, petitioners aver, with hydrocarbons, oxide of nitrogen (NOx) creates smog; with sulfur dioxide, it creates acid rain; and with ammonia, moisture and other compounds, it reacts to form nitric acid and harmful nitrates. Fuel emissions also cause retardation and leaf bleaching in plants. According to petitioner, another emission, carbon monoxide (CO), when not completely burned but emitted into the atmosphere and then inhaled can disrupt the necessary oxygen in blood. With prolonged exposure, CO affects the nervous system and can be lethal to people with weak hearts.6

Petitioners add that although much of the new power generated in the country will use natural gas while a number of oil and coal-fired fuel stations are being phased-out, still with the projected doubling of power generation over the next 10 years, and with the continuing high demand for motor vehicles, the energy and transport sectors are likely to remain the major sources of harmful emissions. Petitioners refer us to the study of the Philippine Environment Monitor 20027, stating that in four of the country's major cities, Metro Manila, Davao, Cebu and Baguio, the exposure to PM10, a finer PM which can penetrate deep into the lungs causing serious health problems, is estimated at over

US$430 million.8 The study also reports that the emissions of PMs have caused the following:

· Over 2,000 people die prematurely. This loss is valued at about US$140 million.

· Over 9,000 people suffer from chronic bronchitis, which is valued at about US$120 million.

· Nearly 51 million cases of respiratory symptom days in Metro Manila (averaging twice a year in Davao and Cebu, and five to six times in Metro Manila and Baguio), costs about US$170 million. This is a 70 percent increase, over a decade, when compared with the findings of a similar study done in 1992 for Metro Manila, which reported 33 million cases.9

Petitioners likewise cite the University of the Philippines' studies in 1990-91 and 1994 showing that vehicular emissions in Metro Manila have resulted to the prevalence of chronic obstructive pulmonary diseases (COPD); that pulmonary tuberculosis is highest among jeepney drivers; and there is a 4.8 to 27.5 percent prevalence of respiratory symptoms among school children and 15.8 to 40.6 percent among child vendors. The studies also revealed that the children in Metro Manila showed more compromised pulmonary function than their rural counterparts. Petitioners infer that these are mostly due to the emissions of PUVs.

To counter the aforementioned detrimental effects of emissions from PUVs, petitioners propose the use of CNG. According to petitioners, CNG is a natural gas comprised mostly of methane which although containing small amounts of propane and butane,10 is colorless and odorless and considered the cleanest fossil fuel because it produces much less pollutants than coal and petroleum; produces up to 90 percent less CO compared to gasoline and diesel fuel; reduces NOx emissions by 50 percent and cuts hydrocarbon emissions by half; emits 60 percent less PMs; and releases virtually no sulfur dioxide. Although, according to petitioners, the only drawback of CNG is that it produces more methane, one of the gases blamed for global warming.11

Asserting their right to clean air, petitioners contend that the bases for their petition for a writ of mandamus to order the LTFRB to require PUVs to use CNG as an alternative fuel, lie in Section 16,12 Article II of the 1987 Constitution, our ruling in Oposa v. Factoran, Jr.,13 and Section 414 of Republic Act No. 8749 otherwise known as the "Philippine Clean Air Act of 1999."

Meantime, following a subsequent motion, the Court granted petitioners' motion to implead the

Department of Transportation and Communications (DOTC) as additional respondent.

In his Comment for respondents LTFRB and DOTC, the Solicitor General, cites Section 3, Rule 65 of the Revised Rules of Court and explains that the writ of mandamus is not the correct remedy since the writ may be issued only to command a tribunal, corporation, board or person to do an act that is required to be done, when he or it unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, there being no other plain, speedy and adequate remedy in the ordinary course of law.15 Further citing existing jurisprudence, the Solicitor General explains that in contrast to a discretionary act, a ministerial act, which a mandamus is, is one in which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to a mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of an act done.

The Solicitor General also notes that nothing in Rep. Act No. 8749 that petitioners invoke, prohibits the use of gasoline and diesel by owners of motor vehicles. Sadly too, according to the Solicitor General, Rep. Act No. 8749 does not even mention the existence of CNG as alternative fuel and avers that unless this law is amended to provide CNG as alternative fuel for PUVs, the respondents cannot propose that PUVs use CNG as alternative fuel.

The Solicitor General also adds that it is the DENR that is tasked to implement Rep. Act No. 8749 and not the LTFRB nor the DOTC. Moreover, he says, it is the Department of Energy (DOE), under Section 2616 of Rep. Act No. 8749, that is required to set the specifications for all types of fuel and fuel-related products to improve fuel compositions for improved efficiency and reduced emissions. He adds that under Section 2117 of the cited Republic Act, the DOTC is limited to implementing the emission standards for motor vehicles, and the herein respondents cannot alter, change or modify the emission standards. The Solicitor General opines that the Court should declare the instant petition for mandamus without merit.

Petitioners, in their Reply, insist that the respondents possess the administrative and regulatory powers to implement measures in accordance with the policies and principles mandated by Rep. Act No. 8749, specifically Section 218 and Section 21.19 Petitioners state that under these laws and with all the available information provided by the DOE on the benefits

of CNG, respondents cannot ignore the existence of CNG, and their failure to recognize CNG and compel its use by PUVs as alternative fuel while air pollution brought about by the emissions of gasoline and diesel endanger the environment and the people, is tantamount to neglect in the performance of a duty which the law enjoins.

Lastly, petitioners aver that other than the writ applied for, they have no other plain, speedy and adequate remedy in the ordinary course of law. Petitioners insist that the writ in fact should be issued pursuant to the very same Section 3, Rule 65 of the Revised Rules of Court that the Solicitor General invokes.

In their Memorandum, petitioners phrase the issues before us as follows:

I. WHETHER OR NOT THE PETITIONERS HAVE THE PERSONALITY TO BRING THE PRESENT ACTION

II. WHETHER OR NOT THE PRESENT ACTION IS SUPPORTED BY LAW

III. WHETHER OR NOT THE RESPONDENT IS THE AGENCY RESPONSIBLE TO IMPLEMENT THE SUGGESTED ALTERNATIVE OF REQUIRING PUBLIC UTILITY VEHICLES TO USE COMPRESSED NATURAL GAS (CNG)

IV. WHETHER OR NOT THE RESPONDENT CAN BE COMPELLED TO REQUIRE PUBLIC UTILITY VEHICLES TO USE COMPRESSED NATURAL GAS THROUGH A WRIT OF MANDAMUS20

Briefly put, the issues are two-fold. First, Do petitioners have legal personality to bring this petition before us? Second, Should mandamus issue against respondents to compel PUVs to use CNG as alternative fuel?

According to petitioners, Section 16,21 Article II of the 1987 Constitution is the policy statement that bestows on the people the right to breathe clean air in a healthy environment. This policy is enunciated in Oposa.22 The implementation of this policy is articulated in Rep. Act No. 8749. These, according to petitioners, are the bases for their standing to file the instant petition. They aver that when there is an omission by the government to safeguard a right, in this case their right to clean air, then, the citizens can resort to and exhaust all remedies to challenge this omission by the government. This, they say, is embodied in Section 423 of Rep. Act No. 8749.

Petitioners insist that since it is the LTFRB and the DOTC that are the government agencies clothed with power to regulate and control motor vehicles, particularly PUVs, and with the same agencies' awareness and knowledge that the

PUVs emit dangerous levels of air pollutants, then, the responsibility to see that these are curbed falls under respondents' functions and a writ of mandamus should issue against them.

The Solicitor General, for his part, reiterates his position that the respondent government agencies, the DOTC and the LTFRB, are not in a position to compel the PUVs to use CNG as alternative fuel. The Solicitor General explains that the function of the DOTC is limited to implementing the emission standards set forth in Rep. Act No. 8749 and the said law only goes as far as setting the maximum limit for the emission of vehicles, but it does not recognize CNG as alternative engine fuel. The Solicitor General avers that the petition should be addressed to Congress for it to come up with a policy that would compel the use of CNG as alternative fuel.

Patently, this Court is being asked to resolve issues that are not only procedural. Petitioners challenge this Court to decide if what petitioners propose could be done through a less circuitous, speedy and unchartered course in an issue that Chief Justice Hilario G. Davide, Jr. in his ponencia in the Oposa case,24 describes as "inter-generational responsibility" and "inter-generational justice."

Now, as to petitioners' standing. There is no dispute that petitioners have standing to bring their case before this Court. Even respondents do not question their standing. This petition focuses on one fundamental legal right of petitioners, their right to clean air. Moreover, as held previously, a party's standing before this Court is a procedural technicality which may, in the exercise of the Court's discretion, be set aside in view of the importance of the issue raised. We brush aside this issue of technicality under the principle of the transcendental importance to the public, especially so if these cases demand that they be settled promptly.

Undeniably, the right to clean air not only is an issue of paramount importance to petitioners for it concerns the air they breathe, but it is also impressed with public interest. The consequences of the counter-productive and retrogressive effects of a neglected environment due to emissions of motor vehicles immeasurably affect the well-being of petitioners. On these considerations, the legal standing of the petitioners deserves recognition.

Our next concern is whether the writ of mandamus is the proper remedy, and if the writ could issue against respondents.

Under Section 3, Rule 65 of the Rules of Court, mandamus lies under any of the following cases: (1) against any tribunal which unlawfully neglects the performance of an act which the law

specifically enjoins as a duty; (2) in case any corporation, board or person unlawfully neglects the performance of an act which the law enjoins as a duty resulting from an office, trust, or station; and (3) in case any tribunal, corporation, board or person unlawfully excludes another from the use and enjoyment of a right or office to which such other is legally entitled; and there is no other plain, speedy, and adequate remedy in the ordinary course of law.

In University of San Agustin, Inc. v. Court of Appeals,25 we said,

…It is settled that mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its main objective. It does not lie to require anyone to fulfill contractual obligations or to compel a course of conduct, nor to control or review the exercise of discretion. On the part of the petitioner, it is essential to the issuance of a writ of mandamus that he should have a clear legal right to the thing demanded and it must be the imperative duty of the respondent to perform the act required. It never issues in doubtful cases. While it may not be necessary that the duty be absolutely expressed, it must however, be clear. The writ will not issue to compel an official to do anything which is not his duty to do or which is his duty not to do, or give to the applicant anything to which he is not entitled by law.The writ neither confers powers nor imposes duties. It is simply a command to exercise a power already possessed and to perform a duty already imposed. (Emphasis supplied.)

In this petition the legal right which is sought to be recognized and enforced hinges on a constitutional and a statutory policy already articulated in operational terms, e.g. in Rep. Act No. 8749, the Philippine Clean Air Act of 1999. Paragraph (a), Section 21 of the Act specifically provides that when PUVs are concerned, the responsibility of implementing the policy falls on respondent DOTC. It provides as follows:

SEC 21. Pollution from Motor Vehicles. - a) The DOTC shall implement the emission standards for motor vehicles set pursuant to and as provided in this Act. To further improve the emission standards, the Department [DENR] shall review, revise and publish the standards every two (2) years, or as the need arises. It

shall consider the maximum limits for all major pollutants to ensure substantial improvement in air quality for the health, safety and welfare of the general public.

Paragraph (b) states:

b) The Department [DENR] in collaboration with the DOTC, DTI and LGUs, shall develop an action plan for the control and management of air pollution from motor vehicles consistent with the Integrated Air Quality Framework . . . . (Emphasis supplied.)

There is no dispute that under the Clean Air Act it is the DENR that is tasked to set the emission standards for fuel use and the task of developing an action plan. As far as motor vehicles are concerned, it devolves upon the DOTC and the line agency whose mandate is to oversee that motor vehicles prepare an action plan and implement the emission standards for motor vehicles, namely the LTFRB.

In Oposa26 we said, the right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. We also said, it is clearly the duty of the responsible government agencies to advance the said right.

Petitioners invoke the provisions of the Constitution and the Clean Air Act in their prayer for issuance of a writ of mandamus commanding the respondents to require PUVs to use CNG as an alternative fuel. Although both are general mandates that do not specifically enjoin the use of any kind of fuel, particularly the use of CNG, there is an executive order implementing a program on the use of CNG by public vehicles. Executive Order No. 290, entitledImplementing the Natural Gas Vehicle Program for Public Transport (NGVPPT), took effect on February 24, 2004. The program recognized, among others, natural gas as a clean burning alternative fuel for vehicle which has the potential to produce substantially lower pollutants; and the Malampaya Gas-to-Power Project as representing the beginning of the natural gas industry of the Philippines. Paragraph 1.2, Section 1 of E.O. No. 290 cites as one of its objectives, the use of CNG as a clean alternative fuel for transport. Furthermore, one of the components of the program is the development of CNG refueling stations and all related facilities in strategic locations in the country to serve the needs of CNG-powered PUVs. Section 3 of E.O. No. 290, consistent with E.O. No. 66, series of 2002, designated the DOE as the lead agency (a) in developing the natural gas industry of the country with the DENR, through the EMB and (b) in formulating emission standards for CNG. Most

significantly, par. 4.5, Section 4 tasks the DOTC, working with the DOE, to develop an implementation plan for "a gradual shift to CNG fuel utilization in PUVs and promote NGVs [natural gas vehicles] in Metro Manila and Luzon through the issuance of directives/orders providing preferential franchises in present day major routes and exclusive franchises to NGVs in newly opened routes…" A thorough reading of the executive order assures us that implementation for a cleaner environment is being addressed. To a certain extent, the instant petition had been mooted by the issuance of E.O. No. 290.

Regrettably, however, the plain, speedy and adequate remedy herein sought by petitioners, i.e., a writ of mandamus commanding the respondents to require PUVs to use CNG, is unavailing. Mandamus is available only to compel the doing of an act specifically enjoined by law as a duty. Here, there is no law that mandates the respondents LTFRB and the DOTC to order owners of motor vehicles to use CNG. At most the LTFRB has been tasked by E.O. No. 290 in par. 4.5 (ii), Section 4 "to grant preferential and exclusive Certificates of Public Convenience (CPC) or franchises to operators of NGVs based on the results of the DOTC surveys."

Further, mandamus will not generally lie from one branch of government to a coordinate branch, for the obvious reason that neither is inferior to the other.27 The need for future changes in both legislation and its implementation cannot be preempted by orders from this Court, especially when what is prayed for is procedurally infirm. Besides, comity with and courtesy to a coequal branch dictate that we give sufficient time and leeway for the coequal branches to address by themselves the environmental problems raised in this petition.

In the same manner that we have associated the fundamental right to a balanced and healthful ecology with the twin concepts of "inter-generational responsibility" and "inter-generational justice" in Oposa,28 where we upheld the right of future Filipinos to prevent the destruction of the rainforests, so do we recognize, in this petition, the right of petitioners and the future generation to clean air. In Oposa we said that if the right to a balanced and healthful ecology is now explicitly found in the Constitution even if the right is "assumed to exist from the inception of humankind,… it is because of the well-founded fear of its framers [of the Constitution] that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would

not be too far when all else would be lost not only for the present generation, but also for those to come. . ."29

It is the firm belief of this Court that in this case, it is timely to reaffirm the premium we have placed on the protection of the environment in the landmark case of Oposa. Yet, as serious as the statistics are on air pollution, with the present fuels deemed toxic as they are to the environment, as fatal as these pollutants are to the health of the citizens, and urgently requiring resort to drastic measures to reduce air pollutants emitted by motor vehicles, we must admit in particular that petitioners are unable to pinpoint the law that imposes an indubitable legal duty on respondents that will justify a grant of the writ of mandamus compelling the use of CNG for public utility vehicles. It appears to us that more properly, the legislature should provide first the specific statutory remedy to the complex environmental problems bared by herein petitioners before any judicial recourse by mandamus is taken.

WHEREFORE, the petition for the issuance of a writ of mandamus is DISMISSED for lack of merit.

SO ORDERED.

AZUCENA O. SALALIMA,   petitioner,   vs.EMPLOYEES COMPENSATION COMMISSION and SOCIAL SECURITY SYSTEM,   respondents.

Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals dated April 12, 2000 as well as its Resolution dated December 6, 2000, which affirmed the Employees’ Compensation Commission’s denial of petitioner’s claim for compensation benefits resulting from the death of her husband, Juancho Salalima, under Presidential Decree No. 626, as amended.

Petitioner’s husband, Juancho S. Salalima, was employed for twenty-nine years as a route helper and subsequently as route salesman for the Meycauayan Plant of Coca-Cola Bottlers Phils., Incorporated. In 1989, during an annual company medical examination, Juancho was diagnosed with minimal pulmonary tuberculosis.2 His illness remained stationary until October 1994 when Juancho was confined at the Manila Doctor’s Hospital to undergo section biopsy. His biopsy revealed that he had "Adenocarcinoma, poorly differentiated, metastatic".3 Consequently, he underwent chemotherapy at the Makati Medical Center. On February 1, 1995, he was found to be suffering from pneumonia.4On February 14, 1995, he was confined at the Makati Medical Center. He died two days later on February 16, 1995 due to

"Adenocarcinoma of the Lungs with widespread metastasis to Neck, Brain, Peritoneal Cavity, Paracaval Lymph Nodes, Abscen; Acute Renal Failure; Septicemia; Upper Gastrointestinal Bleeding".5

A claim for compensation benefits under P.D. 626 as amended was filed by his surviving wife, Azucena, petitioner herein, with the Social Security System (SSS). In a report dated November 12, 1998, SSS Branch Manager Elnora Montenegro and Senior Physicians Corazon Bondoc and Annabelle Bonifacio recommended the denial of petitioner’s claim on the ground that Adenocarcinoma of the Lungs (Cancer of the Lungs) had no causal relationship with Juancho’s job as a route salesman.6 Petitioner’s motion for reconsideration was denied. Hence, petitioner brought the case to the Employees’ Compensation Commission (ECC), which affirmed the decision of the SSS. In its Decision7 dated October 7, 1999, the ECC relied upon the Quality Assurance Medical Report prepared by Dr. Ma. Victoria M. Abesamis for the SSS stating that Juancho’s exposure to smog and dust is not associated with the development of lung cancer.8

Petitioner elevated the case to the Court of Appeals arguing that Juancho’s route as a salesman exposed him to all kinds of pollutants, not to mention the daily hazards and fatigue that came with his tasks. She pointed out that the SSS and the ECC disregarded Juancho’s medical history and the fact that the risk of contracting Juancho’s ailment was increased by the nature of his work.9 In its Comment, ECC averred that the presumption of compensability and the theory of aggravation prevalent under the Workmen’s Compensation Act have been abandoned. Under the implementing rules of P.D. 626, as amended, for the sickness and the resulting disability or death to be compensable, the sickness must be the result of an occupational disease listed under Annex A of the Rules with the conditions set therein satisfied, otherwise, proof must be shown that the risk of contracting the disease is increased by the working conditions. The ECC argued that neither condition is present in Juancho’s case since lung cancer is not an occupational disease nor is the risk of contracting lung cancer increased by Juancho’s working conditions.10The SSS joined the arguments of the ECC and added that petitioner was not able to present substantial evidence to overcome the conclusion reached by the SSS that Juancho’s cause of death was not work-connected.11

In her Reply, petitioner cited the raison d’être for the passage of Republic Act No. 8749, otherwise known as the Clean Air Act. Petitioner stated that the Act provides for a comprehensive pollution control policy that mainly concentrates on the prohibition of leaded gasoline due to its scientifically proven deleterious effect on the

health of individuals.12 Petitioner likewise attached a clipping from the newspaper Manila Standard13 containing a report stating that if the present level of diesel exhaust continues, the pollution could be expected to cause more than 125,000 cases of lung cancer in 70 years.

On April 12, 2000, the Court of Appeals affirmed the decision of the ECC, stating that the factual findings of quasi-judicial agencies, such as the ECC, if supported by substantial evidence, are entitled to great respect in view of their expertise in their respective fields.14 Petitioner’s Motion for Reconsideration15 was denied for lack of merit.16

Hence, this petition for review on certiorari, raising the lone issue:

WHETHER OR NOT THE DECISION OF THE HONORABLE COURT OF APPEALS DENYING PETITIONER’S CLAIM UNDER P.D. 626, AS AMENDED, IS IN ACCORDANCE WITH THE RULES ON EMPLOYEES’ COMPENSATION AND EXISTING JURISPRUDENCE.

Petitioner claims that the judgment of the Court of Appeals was premised upon a misapprehension of the relevant facts of the case at bar. She anchors her petition on the fact that while the cause of her husband Juancho’s death was Adenocarcinoma of the lungs, he nonetheless suffered from two listed occupational diseases, namely pulmonary tuberculosis and pneumonia, prior to his untimely demise, which she insists justifies her claim for death benefits.

We find merit in the petition.

P.D. No. 62617 amended Title II of Book IV on the ECC and State Insurance Fund of the Labor Code. Under the provisions of the law as amended, for the sickness and resulting disability or death to be compensable, the claimant must prove that: (a) the sickness must be the result of an occupational disease listed under Annex "A" of the Rules on Employees’ Compensation, or (b) the risk of contracting the disease was increased by the claimant’s working conditions.18 This means that if the illness or disease that caused the death of the member is not included in the said Annex "A," then his heirs are entitled to compensation only if it can be proven that the risk of contracting the illness or disease was increased by the member’s working conditions.

Under the present law, Adenocarcinoma of the lungs (cancer of the lungs) which was the immediate cause of Juancho’s death as stated in his death certificate, while listed as an occupational disease, is compensable only among vinyl chloride workers and plastic workers.19 This, however, would not automatically bar petitioner’s claim for as long as she could prove that

Juancho’s risk of contracting the disease was increased by the latter’s working conditions.20

In the case at bar, there are two conflicting medical reports on the correlation between Juancho’s work as a route salesman and the illness he suffered which was the immediate cause of his demise. Dr. Pablo S. Santos, Coca-Cola’s Head of Medical Services, stated in his report that while Juancho’s job does not expose him to any chemical material used within the plant, consideration must be given to smog and dust as factors in the development of his lung cancer.21 On the other hand, Dr. Ma. Victoria M. Abesamis of the Social Security System declared in her report that Juancho’s exposure to smog and dust is not associated with the development of lung cancer.22

According to medical experts, Adenocarcinoma of the lungs is one of the four major histologic varieties of bronchogenic carcinoma, the characterization being based upon the cell types that compose the carcinoma. Bronchogenic carcinoma, more commonly known as lung cancer, is the term used to designate nearly all types of malignant lung tumors. Medical books list the etiology of lung cancers as follows: cigarette smoking, occupational exposure, air pollution, and other factors such as preexisting lung damage and genetic influences.23

We agree with petitioner that the respondent government agencies failed to take into consideration Juancho’s medical history in their assessment of the claim for benefits filed by petitioner. For a considerable stretch of Juancho’s stay at Coca-Cola, he was found to be suffering from pulmonary tuberculosis. Several months before his demise, he was diagnosed with Adenocarcinoma of the lungs. A little over two weeks before his death, Juancho was afflicted with pneumonia. The obvious deduction is that Juancho, from the time he acquired pulmonary tuberculosis until his passing away, was predisposed to varied lung diseases.

It is worth noting that tuberculosis is most commonly confused with carcinoma of the lung because the highest incidence of both diseases is in the upper lobe of the lungs and in older men. The symptoms of both diseases include loss of weight, chronic cough, blood-streaked sputum and mild fever.24 Likewise, numerous studies indicate that scars within the lungs and diffuse pulmonary fibrosis are associated with a slightly increased incidence of lung cancer.25 Tuberculosis is a disease characterized by lesions in the lungs as well as tuberculous scars.26 Thus, in light of Juancho’s continued exposure to detrimental work environment and constant fatigue, the possibility that Juancho’s Adenocarcinoma of the lungs developed from the worsening of his pulmonary tuberculosis is not remote.

The degree of proof required under P.D. No. 626 is merely substantial evidence, which means, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." What the law requires is a reasonable work-connection and not a direct causal relation. It is enough that the hypothesis on which the workmen's claim is based is probable. Medical opinion to the contrary can be disregarded especially where there is some basis in the facts for inferring a work-connection. Probability, not certainty, is the touchstone.27 In Juancho’s case, we believe that this probability exists. Juancho’s job required long hours on the streets as well as his carrying of cases of soft drinks during sales calls. The combination of fatigue and the pollutants that abound in his work environment verily contributed to the worsening of his already weak respiratory system. His continuous exposure to these factors may have led to the development of his cancer of the lungs.

It escapes reason as well as one’s sense of equity that Juancho’s heirs should now be denied compensation (death) benefits for the sole reason that his illness immediately before he died was not compensable in his line of work. The picture becomes more absurd when we consider that had Juancho died a few years earlier, when the diagnosis on him revealed only pulmonary tuberculosis, his heirs would not perhaps be going through this arduous path to claim their benefits. Denying petitioner’s claim is tantamount to punishing them for Juancho’s death of a graver illness.

P.D. 626, as amended, is said to have abandoned the presumption of compensability and the theory of aggravation prevalent under the Workmen’s Compensation Act. Despite such abandonment, however, the present law has not ceased to be an employees’ compensation law or a social legislation; hence, the liberality of the law in favor of the working man and woman still prevails, and the official agency charged by law to implement the constitutional guarantee of social justice should adopt a liberal attitude in favor of the employee in deciding claims for compensability, especially in light of the compassionate policy towards labor which the 1987 Constitution vivifies and enhances.28

WHEREFORE, in view of the foregoing, the petition for review on certiorari is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 56174 dated April 12, 2000 is REVERSED and SET ASIDE. The Social Security System is ordered to pay petitioner Azucena Salalima’s claim for death benefits under the Employees’ Compensation Act.

SO ORDERED.

SJS VS ATIENZA

In this original petition for mandamus,1 petitioners Social Justice Society (SJS), Vladimir Alarique T. Cabigao and Bonifacio S. Tumbokon seek to compel respondent Hon. Jose L. Atienza, Jr., mayor of the City of Manila, to enforce Ordinance No. 8027.

The antecedents are as follows.

On November 20, 2001, the Sangguniang Panlungsod of Manila enacted Ordinance No. 8027.2 Respondent mayor approved the ordinance on November 28, 2001.3 It became effective on December 28, 2001, after its publication.4

Ordinance No. 8027 was enacted pursuant to the police power delegated to local government units, a principle described as the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals and general welfare of the society.5 This is evident from Sections 1 and 3 thereof which state:

SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety, and general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the land use of [those] portions of land bounded by the Pasig River in the north, PNR Railroad Track in the east, Beata St. in the south, Palumpong St. in the southwest, and Estero de Pancacan in the west[,] PNR Railroad in the northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon in the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from Industrial II to Commercial I.

xxx xxx xxx

SEC. 3. Owners or operators of industries and other businesses, the operation of which are no longer permitted under Section 1 hereof, are hereby given a period of six (6) months from the date of effectivity of this Ordinance within which to cease and desist from the operation of businesses which are hereby in consequence, disallowed.

Ordinance No. 8027 reclassified the area described therein from industrial to commercial and directed the owners and operators of businesses disallowed under Section 1 to cease and desist from operating their businesses within six months from the date of effectivity of the ordinance. Among the businesses situated in the area are the so-called "Pandacan Terminals" of the oil companies Caltex (Philippines), Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation.

However, on June 26, 2002, the City of Manila and the Department of Energy (DOE) entered into a memorandum of understanding (MOU)6 with the oil companies in which they agreed that "the scaling down of the Pandacan Terminals [was] the most viable and practicable option." Under the MOU, the oil companies agreed to perform the following:

Section 1. - Consistent with the objectives stated above, the OIL COMPANIES shall, upon signing of this MOU, undertake a program to scale down the Pandacan Terminals which shall include, among others, the immediate removal/decommissioning process of TWENTY EIGHT (28) tanks starting with the LPG spheres and the commencing of works for the creation of safety buffer and green zones surrounding the Pandacan Terminals. xxx

Section 2. – Consistent with the scale-down program mentioned above, the OIL COMPANIES shall establish joint operations and management, including the operation of common, integrated and/or shared facilities, consistent with international and domestic technical, safety, environmental and economic considerations and standards. Consequently, the joint operations of the OIL COMPANIES in the Pandacan Terminals shall be limited to the common and integrated areas/facilities. A separate agreement covering the commercial and operational terms and conditions of the joint operations, shall be entered into by the OIL COMPANIES.

Section 3. - The development and maintenance of the safety and green buffer zones mentioned therein, which shall be taken from the properties of the OIL COMPANIES and not from the surrounding communities, shall be the sole responsibility of the OIL COMPANIES.

The City of Manila and the DOE, on the other hand, committed to do the following:

Section 1. - The City Mayor shall endorse to the City Council this MOU for its appropriate action with the view of implementing the spirit and intent thereof.

Section 2. - The City Mayor and the DOE shall, consistent with the spirit and intent of this MOU, enable the OIL COMPANIES to continuously operate in compliance with legal requirements, within the limited area resulting from the joint operations and the scale down program.

Section 3. - The DOE and the City Mayor shall monitor the OIL COMPANIES’ compliance with the provisions of this MOU.

Section 4. - The CITY OF MANILA and the national government shall protect the safety buffer and green zones and shall exert all efforts

at preventing future occupation or encroachment into these areas by illegal settlers and other unauthorized parties.

The Sangguniang Panlungsod ratified the MOU in Resolution No. 97.7 In the same resolution, the Sangguniandeclared that the MOU was effective only for a period of six months starting July 25, 2002.8 Thereafter, on January 30, 2003, the Sanggunian adopted Resolution No. 139 extending the validity of Resolution No. 97 to April 30, 2003 and authorizing Mayor Atienza to issue special business permits to the oil companies. Resolution No. 13, s. 2003 also called for a reassessment of the ordinance.10

Meanwhile, petitioners filed this original action for mandamus on December 4, 2002 praying that Mayor Atienza be compelled to enforce Ordinance No. 8027 and order the immediate removal of the terminals of the oil companies.11

The issues raised by petitioners are as follows:1. whether respondent has the mandatory legal duty to enforce Ordinance No. 8027 and order the removal of the Pandacan Terminals, and2. whether the June 26, 2002 MOU and the resolutions ratifying it can amend or repeal Ordinance No. 8027.12

Petitioners contend that respondent has the mandatory legal duty, under Section 455 (b) (2) of the Local Government Code (RA 7160),13 to enforce Ordinance No. 8027 and order the removal of the Pandacan Terminals of the oil companies. Instead, he has allowed them to stay.

Respondent’s defense is that Ordinance No. 8027 has been superseded by the MOU and the resolutions.14However, he also confusingly argues that the ordinance and MOU are not inconsistent with each other and that the latter has not amended the former. He insists that the ordinance remains valid and in full force and effect and that the MOU did not in any way prevent him from enforcing and implementing it. He maintains that the MOU should be considered as a mere guideline for its full implementation.15

Under Rule 65, Section 316 of the Rules of Court, a petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station. Mandamus is an extraordinary writ that is employed to compel the performance, when refused, of a ministerial duty that is already imposed on the respondent and there is no other plain, speedy and adequate remedy in the ordinary course of law. The petitioner should have a well-defined, clear and certain legal right to the performance of the act and it must be the

clear and imperative duty of respondent to do the act required to be done.17

Mandamus will not issue to enforce a right, or to compel compliance with a duty, which is questionable or over which a substantial doubt exists. The principal function of the writ of mandamus is to command and to expedite, not to inquire and to adjudicate; thus, it is neither the office nor the aim of the writ to secure a legal right but to implement that which is already established. Unless the right to the relief sought is unclouded, mandamus will not issue.18

To support the assertion that petitioners have a clear legal right to the enforcement of the ordinance, petitioner SJS states that it is a political party registered with the Commission on Elections and has its offices in Manila. It claims to have many members who are residents of Manila. The other petitioners, Cabigao and Tumbokon, are allegedly residents of Manila.

We need not belabor this point. We have ruled in previous cases that when a mandamus proceeding concerns a public right and its object is to compel a public duty, the people who are interested in the execution of the laws are regarded as the real parties in interest and they need not show any specific interest.19 Besides, as residents of Manila, petitioners have a direct interest in the enforcement of the city’s ordinances. Respondent never questioned the right of petitioners to institute this proceeding.

On the other hand, the Local Government Code imposes upon respondent the duty, as city mayor, to "enforce all laws and ordinances relative to the governance of the city.">20 One of these is Ordinance No. 8027. As the chief executive of the city, he has the duty to enforce Ordinance No. 8027 as long as it has not been repealed by theSanggunian or annulled by the courts.21 He has no other choice. It is his ministerial duty to do so. In Dimaporo v. Mitra, Jr.,22 we stated the reason for this:

These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason for this is obvious. It might seriously hinder the transaction of public business if these officers were to be permitted in all cases to question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially been declared unconstitutional. Officers of the government from the highest to the lowest are creatures of the law and are bound to obey it.23

The question now is whether the MOU entered into by respondent with the oil companies and the subsequent resolutions passed by

the Sanggunian have made the respondent’s duty to enforce Ordinance No. 8027 doubtful, unclear or uncertain. This is also connected to the second issue raised by petitioners, that is, whether the MOU and Resolution Nos. 97, s. 2002 and 13, s. 2003 of the Sanggunian can amend or repeal Ordinance No. 8027.

We need not resolve this issue. Assuming that the terms of the MOU were inconsistent with Ordinance No. 8027, the resolutions which ratified it and made it binding on the City of Manila expressly gave it full force and effect only until April 30, 2003. Thus, at present, there is nothing that legally hinders respondent from enforcing Ordinance No. 8027.24

Ordinance No. 8027 was enacted right after the Philippines, along with the rest of the world, witnessed the horror of the September 11, 2001 attack on the Twin Towers of the World Trade Center in New York City. The objective of the ordinance is to protect the residents of Manila from the catastrophic devastation that will surely occur in case of a terrorist attack25 on the Pandacan Terminals. No reason exists why such a protective measure should be delayed.

WHEREFORE, the petition is hereby GRANTED. Respondent Hon. Jose L. Atienza, Jr., as mayor of the City of Manila, is directed to immediately enforce Ordinance No. 8027.

SO ORDERED.