POLICE GENERAL LEVY MACASIANO (RET.), IN HIS CAPACITY AS THE CONSULTANT OF THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS (DPWH) TASK FORCE ON DEMOLITION AND/OR IN HIS PERSONAL CAP…

Petitioner seeks to have this Court declare as unconstitutional
Sections 28 and 44 of Republic Act No. 7279, otherwise known as the Urban
Development and Housing Act of 1992. He
predicates his locus standi on
his being a consultant of the Department of Public Works and Highways (DPWH)
pursuant to a Contract of Consultancy on Operation for Removal of Obstructions
and Encroachments on Properties of Public Domain (executed immediately after his retirement on 2 January 1992 from
the Philippine National Police) and his being a taxpayer. As to the first, he alleges that said
Sections 28 and 44 “contain the seeds of a ripening controversy that serve
as drawback” to his “tasks and duties regarding demolition of illegal
structures”; because of the said sections, he “is unable to continue
the demolition of illegal structures which he assiduously and faithfully carried
out in the past.”^[1] As a
taxpayer, he alleges that “he has a direct interest in seeing to it that
public funds are properly and lawfully disbursed.”^[2]

Republic Act No. 7279 was approved on 24 March 1992 and published
in the 4 May 1992 issue of the Official Gazette.^[3] The
challenged provisions therein read as follows:

“SEC. 28. Eviction and Demolition. —
Eviction or demolition as a practice shall be discouraged. Eviction or demolition, however, may be
allowed under the following situations:

(a)       
When persons or entities occupy danger areas such as esteros,
railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and
other public places such as sidewalks, roads, parks, and playgrounds;

(b)       
When government infrastructure projects with available funding
are about to be implemented; or

(c)       
When there is a court order for eviction and demolition.

In the execution of eviction or demolition orders involving
underprivileged and homeless citizens, the following shall be mandatory:

(1)   
Notice upon the affected persons or entities at least
thirty (30) days prior to the date of eviction or demolition;

(2)   
Adequate consultations on the matter of resettlement
with the duly designated representatives of the families to be resettled and
the affected communities in the areas where they are to be relocated;

(3)   
Presence of local government officials or their
representatives during eviction or demolition;

(4)   
Proper identification of all persons taking part in the
demolition;

(5)   
Execution of eviction or demolition only during regular
office hours from Mondays to Fridays and during good weather, unless the
affected families consent otherwise;

(6)   
No use of heavy equipment
for demolition
except for structures that are permanent and of concrete materials;

(7)   
Proper uniforms for members of the Philippine National
Police who shall occupy the first line of law enforcement and observe proper
disturbance control procedures; and

(8)   
Adequate relocation, whether temporary or
permanent: Provided, however, That in cases of eviction and demolition
pursuant to a court order involving underprivileged and homeless citizens,
relocation shall be undertaken by the local government unit concerned and the
National Housing Authority with the assistance of other government agencies
within forty-five (45) days from service of notice of final judgment by the
court, after which period the said order shall be executed: Provided,
further, That should relocation
not be possible within the said period, financial assistance in the amount
equivalent to the prevailing minimum daily wage multiplied by sixty (60) days
shall be extended to the affected families by the local government unit
concerned.

The Department of the Interior and Local Government and the Housing
and Urban Development Coordinating Council shall jointly promulgate the
necessary rules and regulations to carry out the above provision.

x x x

SEC. 44. Moratorium on Eviction and Demolition. — There
shall be a moratorium on the eviction of all program beneficiaries and on the
demolition of their houses or dwelling units for a period of three (3) years
from the effectivity of this Act: Provided, That the moratorium
shall not apply to those persons who have constructed their structures after
the effectivity of this Act and for cases enumerated in Section 28 hereof.”

Petitioner maintains that the said provisions are
unconstitutional because:

“(a) They
deprive the government, and more so, private property owners of their property
without due process of law and without compensation;

(b) They reward, instead of punish, what this Honorable Court has
categorically declared as unlawful acts;

(c) They violate the prohibition against legislation that takes away one’s
property to be given to plain interlopers;

(d) They
sweep overbroadly over legitimate concerns of the police power of the State;
and

(e) They encroach upon the judicial power to execute its valid judgments and
orders.”^[4]

On 10 December 1992, we required the respondents to comment on
the petition.

In its Comment^[5] filed
on 15 January 1993; respondent National Mapping and Resource Information
Authority alleges that the implementation of the assailed sections of the Act
does not belong to or fall within its jurisdiction. It disagrees with the petitioner’s stand that the said sections
are unconstitutional and avers
that Section 28 merely provides for the “humanitarian approach”
towards the less privileged citizens and does not in fact prohibit but merely discourages
eviction or demolition, while Section 44 only covers program beneficiaries.

On 15 January 1993, the Realty Owners Association of the
Philippines, Inc. filed a motion to intervene^[6]
alleging that it has a legal interest in the success of the petition and is in full
accord with it. This Court required the
parties to comment thereon.

On 16 February 1993, the Office of the Government Corporate
Counsel (OGCC) filed a comment^[7] for
the respondent National Housing Authority (NHA) informing this Court that
“in a letter of respondent NHA addressed to the office of the undersigned
counsel, dated 29 January 1993, x x x, the former categorically expressed as
its official stand on the instant petition that Sections 28 and 44 of Republic
Act No. 7279 are indeed unconstitutional,” and that “after a
circumspect evaluation of the petition We find no cogent reason not to support
the position heretofore taken by respondent NHA.” Said office then prays
that the instant petition be given due course.

On 14 May 1993, the Solicitor General filed his Comment to the
petition. He maintains that the instant
petition is devoid of merit for non-compliance with the essential requisites
for the exercise of judicial review in cases involving the constitutionality of
a law. He contends that there is no
actual case or controversy with litigants asserting adverse legal rights or interests, that the petitioner merely
asks for an advisory opinion, that the petitioner is not the proper party to
question the Act as he does not state that he has property “being squatted
upon” and that there is no showing that the question of constitutionality
is the very lis mota presented. He argues that Sections 28 and 44 of the Act are not constitutionally
infirm.

Up to this time, no comment has been submitted by the parties on
the motion to intervene. Considering,
however, that the issues are clear and simple enough, this Court dispenses with
the need for a comment on the said motion, denies the same and, after
deliberating on the issues raised and the arguments adduced by the parties in
the petition and comments, declares this petition to be without merit.

It is a rule firmly entrenched in our jurisprudence that the
constitutionality of an act of the legislature will not be determined by the
courts unless that question is properly raised and presented in appropriate
cases and is necessary to a determination of the case, i.e., the issue
of constitutionality must be the very lis mota presented.^[8] To reiterate, the essential
requisites for a successful judicial inquiry into the constitutionality of a
law are: (a) the existence of an actual
case or controversy involving a conflict of legal rights susceptible of
judicial determination, (b) the constitutional question must be raised by a
proper party, (c) the constitutional question must be raised at the earliest
opportunity, and (d) the resolution of the constitutional question must be
necessary to the decision of the case.^[9] A proper
party is one who has sustained or is in danger of sustaining an immediate
injury as a result of the acts or measures complained of.^[10]

It is easily discernible in the instant case that the first two
(2) fundamental requisites are absent. There is no actual controversy. Moreover, petitioner does not claim that, in either or both of the
capacities in which he is filing
the petition, he has been actually prevented from performing his duties as a
consultant and exercising his rights as a property owner because of the
assertion by other parties of any benefit under the challenged sections of the
said Act. Judicial review cannot be
exercised in vacuo. Judicial
power is the “right
to
determine actual controversies arising between adverse litigants.”^[11]

In reality, his petition is one for declaratory relief as he
prays therein that “his rights as well as those of private landowners be
clearly defined and his duties under the Constitution and the pertinent laws be
clearly stated with respect to the demolition of illegal structures on public
and private lands.”^[12]
Even so, it is still not viable since among the essential requisites of a
petition for declaratory relief are that: (a) there must be a justiciable controversy, (b) the controversy must be
between persons whose interests are adverse and (c) the party seeking
declaratory relief must have a legal interest in the controversy.^[13]
Furthermore, an action for declaratory relief does not fall within the original
jurisdiction of the Supreme Court even if only questions of law are involved.^[14]
True, we have said that such a petition may be treated as one for prohibition^[15]
or mandamus^[16] if
it has far-reaching implications and raises questions that need to be resolved;
but the exercise of such discretion presupposes, at the outset, that the
petition is otherwise viable or meritorious.

The petitioner is not likewise a “proper party.” As a
consultant of the DPWH under the “Contract for Consultancy x x x,” he
is not vested with any authority to demolish obstructions and encroachments on
properties of the public domain, much less on private lands. The consultancy contract limits his duties
to the following: “(a) to organize and train selected DPWH personnel for
the different Engineering Districts in the NCR in the techniques and methods of
removing/demolishing illegal structures/stalls, etc., as well
as in crowd control, self-defense and security procedures x x x; (b) to provide
advice to the Secretary and other DPWH officials regarding prioritization of
areas to be cleared of obstructions and encroachments; (c) to conduct field
inspection from time to time of areas recommended for clearing; (d) to provide
advice in developing appropriate standards and techniques in cost effective
implementation of the removal and demolition of obstructions and encroachments
x x x; and (e) to develop operational procedures that will institutionalize
demolition processes.”^[17]
Moreover, the consultancy contract expired on 31 December 1992 and the
petitioner has not manifested that he obtained a renewal or extension thereof.

Nor does the petitioner claim that he is an owner of an urban
property whose enjoyment and use would be affected by the challenged provisions
of R.A. No. 7279.

Although the petitioner likewise anchors his locus standi on the fact that he is a taxpayer, it does not mean,
however, that in
each and every instance where such a ground is invoked, this Court is
left with no alternative except to hear the parties. In Tan vs. Macapagal,^[18]
we clarified that “as far as a taxpayer’s suit is concerned, this Court is not devoid of discretion as to
whether or not it should be entertained.”

We do not, as well, find an indubitable ground for the
constitutional challenge. As this Court
said through Mr. Justice Isagani A. Cruz in Garcia vs. Executive Secretary:^[19]

“On the merits, We find that the constitutional challenge must
be rejected for failure to show that there is an indubitable ground for it, not
to say even a necessity to resolve it. The policy of the courts is to avoid ruling on constitutional questions
and to presume that the acts of the political departments are valid in the
absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of
separation of powers which enjoins upon each department a becoming respect for
the acts of the other departments. The
theory is that as the joint act of Congress and the President of the
Philippines, a law has been carefully studied and determined to be in
accordance with the fundamental law before it was finally enacted.”

We cannot end this resolution without a few words on the comment
of the OGCC for public respondent National Housing Authority wherein the OGCC
merely adopted the stand of the officer-in-charge of the Legal Department of
the said Authority that the challenged sections of R.A. No. 7279 are unconstitutional. On its own, the OGCC did not even attempt to
reason out why this petition should be granted or denied. It has obviously treated this case without
the circumspection and seriousness expected of it especially in the light of
the functions, duties and responsibilities of the NHA under the challenged
Act. The OGCC should not have cursorily
adopted the opinion of the officer-in-charge who acted on his own and who,
apparently, did not even refer his opinion to the Board of Directors of the
NHA.

WHEREFORE, for lack of merit, the instant petition is
DISMISSED with costs against the petitioner.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado,
Romero, Nocon, Bellosillo, Melo, and
Quiason, JJ., concur.

Padilla, J., on leave.

^[1]
Rollo, 8.

^[2]
Id., 5-6.

^[3]
Annex “B” of Petition; Id., 46, et seq.

^[4]
Rollo, 26.

^[5]
Rollo, 88-91.

^[6]
Id., 92-96.

^[7]
Id., 103-105.

^[8]
People vs. Vera, 65 Phil. 56, 82 [1937].

^[9]
Dumlao vs. COMELEC, 95 SCRA 392 [1980];
National Economic Protectionism Association vs. Ongpin, 171 SCRA
657 [1989]; Association of Small
Landowners in the Philippines, Inc. vs. Secretary of Agrarian
Reform, 175 SCRA 343 [1989]; Garcia vs. Executive Secretary, 204 SCRA
516 [1991].

^[10]
Association of Small Landowners in the Philippines, Inc. vs. Secretary
of Agrarian Reform, supra, 364.

^[11]
Muskrat vs. United States, 219 U.S. 346 [1911], cited in Allied
Broadcasting Center, Inc. vs. Republic, 190 SCRA 782 [1990].

^[12]
Rollo, 6.

^[13]
Delumen vs. Republic, 94 Phil. 287 [1954].

^[14]
Remotigue vs. Osmeña, 21 SCRA 837 [1967]; Rural Bank of Olongapo vs.
Commissioner of Land Registration, 102 SCRA 794 [1981]; Allied Broadcasting
Center, Inc. vs. Republic, supra, footnote no. 11.

^[15]
De la Llana vs. Alba, 112 SCRA 294 [1982].

^[16]
Alliance of Government Workers vs. Minister of Labor and Employment, 124
SCRA 1 [1983].

^[17]
Rollo, 44-45.

^[18] 43 SCRA
677 [1972].

^[19]
Supra, footnote no. 9, at 522-523.