Republic of the Philippines
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER
Tel No. (083) 228-1742
LEGAL OPINION NO. ________
DATE : 27 August 2013
TO : Hon. PETER B. MIGUEL, M.D., FPSO-HNS
City Mayor
RE : AS STATED
____________________________________________________
Kanami Koronadal!
This has reference to your request for legal opinion regarding the conflicting claims over the New Alkor Gallera, situated at Lot No. 33-D-3, (LRC) Psd-159732, with an area of 10,000 square meters, more or less, between Joveniano Tiu, et al. and Engr. Ernie Padernal. Said lot was formerly covered by TCT No. T-31907.
As gathered, it appears that the subject property, which was originally registered in the name of Alfredo (deceased) and Rufina Padernal, was mortgaged to the Philippine National Bank (PNB) by Ernie and Evelyn Padernal on the strength of a Special Power of Attorney from the registered owners. Upon default of the mortgagor, the mortgage was extrajudicially foreclosed and PNB was able to acquire the property, including the improvements thereon. Eventually, the title was consolidated in the name of PNB under TCT No. T-91167.
Subsequently, PNB entered into a Contract to Sell with Joveniano Tiu, et al. and authorized the latter to operate the said cockpit. The vendees formed a corporation and have now a pending application with the Securities and Exchange Commission.
Prior thereto, Joveniano Tiu, et al. used to operate the said cockpit on the strength of a contract of lease with the Padernals, which however had already expired. Considering that the subject property has already been sold to them by PNB, Joveniano Tiu, et al. are now applying for a business permit/special permit to operate the same. Engr. Ernie Padernal interposed an objection thereto claiming that he is the licensee as regards the said cockpit and that although there already was a foreclosure, there was no writ of possession from the court yet allowing PNB to take possession of the subject property.
We are therefore confronted by an issue of whether or not Joveniano Tiu, et al. may be issued business permit/special permit with respect to the operation of the subject cockpit.
We answer in the affirmative, subject only to the requirements set by the law and ordinance.
As discussed, PNB, the new registered owner of the subject property, has already entered into a Contract to Sell with Joveniano Tiu, et al., on 18 February 2013. In addition, PNB, through its Branch Manager, Evelyn B. Tampus, has authorized Joveniano Tiu, et al., via a Memorandum/Certification dated 19 July 2013 to operate the said cockpit. Considering that they have been in possession of the subject property, we find no logic in requiring them to secure first a writ of possession from the Court. A writ of possession is needed only if the prevailing party in an action or proceeding is not yet in possession of the property. It is a remedy available to the purchaser at a public auction and to any subsequent buyers thereof, which remedy may or may not be availed of. In this case, such writ is no longer necessary because the purchasers have been in possession of the property and have in fact been operating the same. This is a case of possessors who have been enjoying the beneficial use of a property, who have subsequently acquired the naked ownership of the same property. Needless to say, Engr. Padernal had already ceased to be the owner of the property; hence, his objection has no leg to stand on.
We hope that we have guided you accordingly.
In public service,
ATTY. EUFEMIO A. SIMTIM, JR.
City Legal Officer
ABEGAIL F. BATARA, LLB
Legal Assistant II
Who is Atty. Jayr?
- atty. jay_ar
- Atty. Eufemio A. Simtim, Jr. or Atty. Jayr is a licensed lawyer in the Philippines. He is a Partner at Simtim Gunay Viejo Sales Sobrejuanite Law Group, but he does only virtual consultations as he is presently out of the country. He has been in the litigation practice in most part of his legal career and has worked in the academe, in the government and in the corporate world. He also passed the PRC licensure exams for Real Estate Broker and for Real Estate Appraiser (Rank No. 5). He presently runs his Youtube Channel, @yourlawyer, providing free legal information and updates.
Friday, November 29, 2013
LEGAL OPINION RE ESTABLISHMENT OF COCKPITS [DELAYED POSTING]
Republic of the Philippines
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER
Tel No. (083) 228-1742
LEGAL OPINION NO. ________
DATE : 27 August 2013
TO : Hon. PETER B. MIGUEL, M.D., FPSO-HNS
City Mayor
RE : AS STATED
___________________________________________________
Kanami Koronadal!
This has reference to your request for legal opinion on the granting of franchise and issuance of special and/or business permit concerning the operation of a cockpit/cockfighting business.
Before delving into details, please be informed that this opinion is supplementary to the legal opinion rendered by the City Legal Office via Legal Opinion No. 2013-08-04 dated 2nd of August 2013. A perusal of the above-mentioned opinion may be helpful and contributive as the controversies and parties involved are the same as this case before us.
I. BRIEF HISTORICAL BACKGROUND OF COCKFIGHTING LAWS
Let us examine the evolution of Laws pertaining to the authorization of the Cockfighting/Cockpit Operation in the LGUs.
A. PRESIDENTIAL DECREE NO. 449, otherwise known as "The Cockfighting Law of 1974".
In 1970s, the desire for stricter licensing requirements of cockpits started to see legislative fruit. The Cockfighting Law of 1974 (PD 449) enacted several of these requisites/restrictions, to wit:
(a) one-cockpit-per-city/municipality rule except if its population exceeds one hundred thousand, in this case, two cockpits maybe operated.
x x x
“Section 5. Cockpits and Cockfighting: In General:
(a) xxx
(b) Establishment of Cockpits. Only one cockpit is allowed in each city or municipality, except that in cities or municipalities with a population of over hunddred thousand, two cockpits maybe established, maintained and operated.
x x x
(b) limitation of ownership of cockpits to Filipino citizens.
x x x
“Section 5. Cockpits and Cockfighting: In General:
(a) Ownership, Operation and Management of Cockpits. Only Filipino citizens not otherwise inhibited by existing laws shall be allowed to own, manage and operate cockpits. Cooperative capitalization is encouraged.
x x x
(c) it was the city or municipal mayor who was authorized to issue licenses for the operation and maintenance of cockpits, subject to the approval of the Chief of Constabulary or his authorized representatives.
x x x
“Section 6.LICENSING OF COCKPITS.
City and Municipal mayors are authorized to issue licenses for the operation and maintenance of cockpits subject to the approval of the Chief of Constabulary or his authorized representatives.”
x x x
Thus, the sole discretion to authorize the operation of cockpits as contained in previous laws was removed from the local government unit since the approval of the Chief of Constabulary was required
B. PRESIDENTIAL DECREE NO. 1803, otherwise known as "Creating the Philippine Gamefowl Commission".
Then came P.D. No. 1803 which established the Philippine Gamefowl Commission and imposed further structure in the regulation of cockfighting.
x x x
"Section 4.
City and Municipal Mayors with the concurrence of their respectives Sangguniang Panglunsod or Sangguniang Bayan, shall have the authority to license and regulate regular cockfighting, under the supervision of the City Mayor and the Provincial Governor, as the case may be.
x x x
Based on the foregoing, the approval of the Chief Constabulary or his representative as enunciated in PD 449 was expressly removed.
However, the preceding section was subsequently amended by Presidential Decree 1802-A, otherwise known as "Amending Section 4 of Presidential Decree No. 1802". The amended provision ordained:
x x x
"Section 4.
City and Municipal Mayors with the concurrence of their respective "Sanggunians" shall have the authority to license and regulate regular cockfighting pursuant to the rules and regulations promulgated by the Commission and subject to its review and supervision.
x x x
As above-mentioned, such amendment removes the supervision exercised by the mayor or governor and substituting in their stead the Philippine Gamefowl Commission (PGC). But the PGC’s power of supervision under such law has been clarified by the Honorable Supreme Court in the light of the Local Government Code then in effect, thus:
x x x
“According to the Local Government Code, the municipal mayor has the power to "grant licenses and permits in accordance with existing laws and municipal ordinances and revoke them for violation of the conditions upon which they have been granted," and the Sangguniang Bayan is authorized to "regulate cockpits, cockfighting and the keeping or training of gamecocks, subject to existing guidelines promulgated by the Philippine Gamefowl Commission."
A study of the above-cited powers shows that it is the municipal mayor with the authorization of the Sangguniang Bayan that has the primary power to issue licenses for the operation of ordinary cockpits. Even the regulation of cockpits is vested in the municipal officials, subject only to the guidelines laid down by the Philippine Gamefowl Commission. Its power to license is limited only to international derbies and does not extend to ordinary cockpits. Over the latter kind of cockpits, it has the power not of control but only of review and supervision.
We have consistently held that supervision means "overseeing or the power or authority of an officer to see that their subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or steps as prescribed by law to make them perform their duties." Supervision is a lesser power than control, which connotes "the power of the officer to alter or modify or set aside what a subordinate had done in the performance of his duties and to substitute the judgment of the former for that of the latter." Review, on the other hand, is a reconsideration or reexamination for purposes of correction.
As thus defined, the power of supervision does not snow the supervisor to annul the acts of the subordinate, for that comes under the power of control. What it can do only is to see to it that the subordinate performs his duties in accordance with law. The power of review is exercised to determine whether it is necessary to correct the acts of the subordinate. If such correction is necessary, it must be done by the authority exercising control over the subordinate or through the instrumentality of the courts of justice, unless the subordinate motu proprio corrects himself after his error is called to his attention by the official exercising the power of supervision and review over him.
At that, even the power of review vested in the Philippine Gamefowl Commission by P.D. 1802-A may have been modified by the Local Government Code, which became effective on February 14, 1983. Under the Code, the Sangguniang Panlalawigan is supposed to examine the ordinances, resolutions and executive orders issued by the municipal government and to annul the same, but only on one ground, to wit, that it is beyond the powers of the municipality or ultra vires. Significantly, no similar authority is conferred in such categorical terms on the Philippine Gamefowl Commission regarding the licensing and regulation of cockpits by the municipal government.
The conferment of the power to license and regulate municipal cockpits in the municipal authorities is in line with the policy of local autonomy embodied in Article II, Section 10, and Article XI of the 1973 Constitution. It is also a recognition, as the Court of Appeals correctly points out, of the superior competence of the municipal officials in dealing with this local matter with which they can be expected to be more knowledgeable than the national officials. Surely, the Philippine Gamefowl Commission cannot claim to know more than the municipal mayor and the Sangguniang Bayan of Bogo, Cebu, about the issues being disputed by the applicants to the cockpit license.” [PHILIPPINE GAMEFOWL COMMISSION AND HEE ACUSAR vs.HON. INTERMEDIATE APPELLATE COURT, MAYOR CELESTINO E. MARTINEZ, JR., THE SANGGUNIANG BAYAN OF BOGO (CEBU), and SANTIAGO SEVILLA, G.R. No. 72969-70 December 17, 1986]
x x x
C. REPUBLIC ACT 7160, otherwise known as "The Local Government Code of 1991".
More importantly, Republic Act 7160 has already conferred such power to the Sangguniang Panlungsod. Said law provides that:
x x x
Article Three – The Sangguniang Panlungsod
Section 458.Powers, Duties, Functions and Compensation. –
(a) The Sangguniang Panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:
(1) xxx
(2) xxx
(3) Subject to the provisions of Book II of this Code, enact ordinances granting franchises and authorizing the issuance of permits or licenses, upon such conditions and for such purposes intended to promote the general welfare of the inhabitants of the city and pursuant to this legislative authority shall:
(i)xxx
(ii)xxx
(iii)xxx
(iv)xxx
(v) Any law to the contrary notwithstanding, authorize and license the establishment, operation, and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks: Provided, That existing rights should not be prejudiced;
x x x
Article 99, Rule XV of the Local Government Code’s Implementing Rules and Regulations provides in toto a similar provision.
There is no more forceful authority on this landmark legislation than Senator Aquilino Pimentel, Jr., its principal author. In his annotations to the Local Government Code, he makes the following remarks relating to Section 448(a)(3)(v):
x x x
"12.Licensing power. In connection with the power to grant licenses lodged with it, the Sangguniang Panlungsod may now regulate not only businesses but also occupations, professions or callings that do not require government examinations within its jurisdiction. It may also authorize and license the establishment, operation and maintenance of cockpits, regulate cockfighting, and the commercial breeding of gamecocks."
x x x
Ergo, based on the preceding provisions and annotation, the power to license cockpits and permits for cockfighting has been removed completely from the Gamefowl Commission and devolved to Sangguniang Panlungsod by virtue of R.A.7160.
Again, it must be stressed out also that even before the advent of RA 7160, the Court interpreted in a series of cases that the Philippine Gamefowl Commission's power of review and supervision does not extend to licensing which belongs exclusively to the Sangguniang Panlungsod. The landmark cases of the Supreme Court elucidates further in the following cases:
(a) Deang v. Intermediate Appellate Court, 24 September 1987, 154 SCRA 250)
(b) Municipality of Malolos v. Libangang Malolos Inc., 11 August 1988, 164 SCRA 290
(c) Adlawan v. Intermediate Appellate Court, 9 February 1989, 170 SCRA 165).
In the afore-cited case of Philippine Gamefowl Commission et al. vs. Hon. Intermediate Appellate Court, et al., the Honorable Supreme Court has intoned:
xxx xxx xxx
“This is as good an occasion as any to stress the commitment of the Constitution to the policy of local autonomy which is intended to provide the needed impetus and encouragement to the development of our local political subdivisions as "self-reliant communities." In the words of Jefferson, "Municipal corporations are the small republics from which the great one derives its strength." The vitalization of local governments will enable their inhabitants to fully exploit their resources and, more important, imbue them with a deepened sense of involvement in public affairs as members of the body politic. This objective could be blunted by undue interference by the national government in purely local affairs which are best resolved by the officials and inhabitants of such political units. The decision we reach today conforms not only to the letter of the pertinent laws but also to the spirit of the Constitution.”
xxx xxx xxx
It must be noted that the final provisions of RA 7160 decreed that:
xxx xxx xxx
“Title Four - Final Provisions
"Section. 534.
(a) xxx
(b) xxx
(c) xxx
(d) xxx
(e) xxx
(f) all general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of this Code are hereby repealed or modified accordingly.”
xxx xxx xxx
The above section repeals or amends expressly several laws mentioned thereat. However, PD 449 was not among them. It is a cardinal rule in statutory construction that implied repeals are disfavoured and will not be so declared --
(a) UNLESS the intent of the legislators is manifest and unless the repugnancy between the two is not only irreconcilable but also clear and convincing as a result of the language used,
(b) UNLESS the latter Act fully embraces the subject matter of the earlier.
Hence, the conditions set therein still find application.
xxx xxx xxx
“Except as provided in this Decree, cockfighting shall be allowed only in licensed cockpits during Sundays and legal holidays and during local fiestas for not more than three days. It may also be held during provincial, city or municipal, agricultural, commercial or industrial fair, carnival or exposition for a similar period of three days upon resolution of the province, city or municipality where such fair, carnival or exposition is to be held, subject to the approval of the Chief of Constabulary or his authorized representative: Provided, that, no cockfighting on the occasion of such fair, carnival or exposition shall be allowed within the month of a local fiesta or for more than two occasions a year in the same city or municipality: Provided, further, that no cockfighting shall be held on December 30 (Rizal Day), June 12 (Philippine Independence Day) November 30 (National Heroes Day), Holy Thursday, Good Friday, Election or Referendum Day and during Registration Days for such election or referendum. (P.D. 449, Section 5)
xxx xxx xxx
Thus, the Honorable Supreme Court has ruled:
xxx xxx xxx
"We do not doubt, however, the ability of the national government to implement police power measures that affect the subjects of municipal government, especially if the subject of regulation is a condition of universal character irrespective of territorial jurisdictions. Cockfighting is one such condition. It is a traditionally regulated activity, due to the attendant gambling involved or maybe even the fact that it essentially consists of two birds killing each other for public amusement. Laws have been enacted restricting the days when cockfights could be held, and legislation has even been emphatic that cockfights could not be held on holidays celebrating national honor such as Independence Day (R.A. 137) and Rizal Day (R.A. 229)." (Tan vs. Perena, G.R. No. 149743, February 18, 2005)
xxx xxx xxx
II. THE POWER AND AUTHORITY OF THE CITY MAYOR IN ISSUING A SPECIAL AND/OR BUSINESS PERMITS AS PROVIDED FOR BY LAWS AND CITY ORDINANCE
A. THE ESSENTIAL REQUISITES/QUALIFICATIONS FOR THE ISSUANCE OF SPECIAL /BUSINESS PERMITS FOR THE OPERATION OF COCKFIGHTING BUSINESS
The power and authority of the City Mayor to issue the Mayor’s Permit for cockpits owners, operators, licensees, promoters and cockpit personnel, is expressly provided under the 2008 Local Revenue Code of the City of Koronadal which provides that:
xxx xxx xxx
“CHAPTER 3. PERMIT AND REGULATORY FEES
Article K. – PERMIT FEE FOR COCKPITS OWNERS, OPERATORS, LICENSEES, PROMOTERS AND COCKPIT PERSONNEL
Sec. 3K. 01. Imposition of Fees. There shall be collected the following Mayor’s Permit fees from cockpit operators/owners/licensees and cockpit personnel:
(a) From the owner/operator/licensees of the cockpit:
xxx xxx xxxx
xxx xxx xxxx
(b) From Cockpit personnel
xxx xxx xxxx
xxx xxx xxxx
Sec. 3K. 02. Time and Manner of Payment.
(a) The application filing fee is payable to the City Treasurer upon application for a permit or license to operate and maintain cockpits.
(b) The cockpit registration fee is also payable upon application for a permit before a cockpit can operate and within the first twenty (20) days of January of each year in case of renewal thereof.
(c) The permit fees on cockpit personnel shall be paid before they participate in a cockfight and shall be paid annually upon renewal of the permit on the birth month of the permittee.
Sec. 3K. 03. Administrative Provisions.
(a) Ownership, operation and management of cockpit. Only Filipino Citizens not otherwise inhibited by existing ordinances or laws shall be allowed to own, manage and operate cockpits. Cooperative capitalization is encouraged.
(b) Establishment of Cockpits. The Sangguninang Panlungsod shall determine the number of cockpits to be allowed in this pursuant to the Philippine's Game and Fouls Commission PD449 & PD 1802.
(c) Cockpit-size and Construction. Cockpits shall be constructed and operated within the appropriate areas as prescribed in Zoning Law or Ordinance. In the absence of such law or ordinance, the City shall see to it that no cockpits are constructed within or near existing residential or commercial areas, hospitals, school buildings, churches or other public buildings. OWNERS, LESSEES, or OPERATORS of cockpits which are now in existence and do not conform to this requirement are required to comply with these provisions within a period to be specified by the City Mayor. Approval or issuance of building permits for the construction of cockpits shall be made by the City Engineer in accordance with existing ordinances, laws and practices.
(d) Only duly registered and licensed promoters, referees, cashiers, bet managers, pit referees, bet takers, or gaffers shall take part in all kinds of cockfights held in this City. No OPERATOR or OWNER OF A COCKPIT shall employ or allow any of the above-named personnel to participate in a cockfight unless he has registered and paid the fee herein required.
(e) Upon payment of the fees herein imposed, the corresponding Mayor's Permit shall be issued.
x x x
Article L. – SPECIAL PERMIT FOR DERBY COCKFIGHTING
“Sec.3L.01. Imposition of Fees. There shall be collected the following fees per day for cockfighting:
(a) xxx
(b) xxx
x x x
Notably, Sec. 3K. 04, Article K, of the said Ordinance provides:
xxx xxx xxx
“Sec 3K. 04. Applicability Clause. The provision of PD 449, otherwise known as the Cockfighting Law of 1974, PD 1802 (Creating the Philippines Gamefowl Commission), and such other pertinent laws shall apply to all matters regarding the operation of cockpits and the holding of cockfights in this City.”
xxx xxx xxx
Similarly, Sec. 3L. 05, Article L, of the same Ordinance likewise provides:
xxx xxx xxx
Sec. 3L. 05. Applicability Clause. The provision of PD 449, otherwise known as the Cockfighting Law of 1974, PD 1802 (Creating the Philippines Gamefowl Commission), and such other pertinent laws shall apply to all matters regarding the operation of cockpits and the holding of cockfights in this city.”
xxx xxx xxx
Presidential Decree No. 449 provides:
xxx xxx xxx
“Section 5. Cockpits and Cockfighting: In General:
(a) Ownership, Operation and Management of Cockpits. Only Filipino citizens not otherwise inhibited by existing laws shall be allowed to own, manage and operate cockpits. Cooperative capitalization is encouraged.
(b) Establishment of Cockpits. Only one cockpit shall be allowed in each city or municipality, except that in cities or municipalities with a population of over one hundred thousand, two cockpits may be established, maintained and operated.
(c) Cockpits Site and Construction. Cockpits shall be constructed and operated within the appropriate areas as prescribed in Zoning Law or Ordinance. In the absence of such law or ordinance, the local executives shall see to it that no cockpits are constructed within or near existing residential or commercial areas, hospitals, school buildings, churches or other public buildings. Owners, lessees, or operators of cockpits which are now in existence and do not conform to this requirement are given three years from the date of effectivity of this Decree to comply herewith. Approval or issuance of building permits for the construction of cockpits shall be made by the city or provincial engineer in accordance with their respective building codes, ordinances or engineering laws and practice.
(d) Holding of Cockfights. Except as provided in this Decree, cockfighting shall be allowed only in licensed cockpits during Sundays and legal holidays and during local fiestas for not more than three days. It may also be held during provincial, city or municipal, agricultural, commercial or industrial fair, carnival or exposition for a similar period of three days upon resolution of the province, city or municipality where such fair, carnival or exposition is to be held, subject to the approval of the Chief of Constabulary or his authorized representative: Provided, that, no cockfighting on the occasion of such fair, carnival or exposition shall be allowed within the month of a local fiesta or for more than two occasions a year in the same city or municipality: Provided, further, that no cockfighting shall be held on December 30 (Rizal Day), June 12 (Philippine Independence Day) November 30 (National Heroes Day), Holy Thursday, Good Friday, Election or Referendum Day and during Registration Days for such election or referendum. (P.D. 449, Section 5)
xxx xxx xxx
It is important to note that under the Local Government Code of 1991, the City Mayor shall “issue licenses and permits and suspend and revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance” [Sec. 455 (b) (3) (iv)]. The 2008 Local Revenue Code of the City of Koronadal has already set the policy and guidelines for the issuance such permit or license, incorporating therein the provisions of PD 449. In issuing the Mayor’s Permit contemplated in the ordinance, the City Mayor is guided by such policy and guidelines.
To sum up, based on the foregoing quoted provisions of national laws and ordinance, the City Mayor may issue the special and/or regular business permits in the conduct of cockfighting business provided all the essential requisites/qualifications are complied with, to wit:
(a) limitation of ownership of cockpits to Filipino citizens, although cooperative capitalization is encouraged;
(b) one-cockpit-per-city-rule except if its population exceeds one hundred thousand, in which case, two cockpits may be operated;
(c) the OWNERS, LESSEES, or OPERATORS are in actual possession and/or ownership of the licensed cockpit where regular and/or special cockfights may be held;
(d) only duly registered and licensed Cockpit Personnel shall take part in all cockfights held in this City;
(e) payment of imposed/necessary fees as scheduled shall be made before owners, lessees, operators and cockpit personnel may participate in cockfights.
However, mere compliance to all the above-mentioned requisites for the application of mayor’s special and/or business permit for the cockfighting business would not warrant or render the automatic approval of the City Mayor, otherwise it would tantamount to the undue encroachment on the Mayor’s administrative prerogatives. Such power is discretionary and not merely a ministerial duty on his part.
B. THE BENEFITS AND LIMITATIONS ACQUIRED BY THE OWNERS, LESSEES, or OPERATORS UPON ISSUANCE OF SPECIAL/BUSINESS PERMITS RELATIVE TO THE OPERATION OF COCKFIGHTING BUSINESS
Upon compliance with the essential requirements/qualifications provided for by PD 449 and the City Ordinance, and upon approval of the City Mayor and/ or upon resolution of Sangguniang Panlungsod as the case maybe, OWNERS, LESSEES, or OPERATORS of Cockfighting Trade shall operate or conduct their business within the bounds of the mentioned laws, subject further to the police power measures of the local government.
In the case of Social Justice Society vs. Atienza, G.R. No. 156052, February 13, 2008, the Supreme Court decided that:
“Police power is the plenary power vested in the legislature to make statutes and ordinances to promote the health, morals, peace, education, good order or safety and general welfare of the people. While the police power rest primarily with the national legislature, such power may be delegated. Section 16 of the Local Government Code known as the general welfare clause, encapsulates the delegated police power to local governments:
x x x
“Section 16.General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied there from, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants”.
X x x
“Section 18. Power to Generate and Apply Resources. - Local government units shall have the power and authority to establish an organization that shall be responsible for the efficient and effective implementation of their development plans, program objectives and priorities; to create their own sources of revenues and to levy taxes, fees, and charges which shall accrue exclusively for their use and disposition and which shall be retained by them; to have a just share in national taxes which shall be automatically and directly released to them without need of any further action; to have an equitable share in the proceeds from the utilization and development of the national wealth and resources within their respective territorial jurisdictions including sharing the same with the inhabitants by way of direct benefits; to acquire, develop, lease, encumber, alienate, or otherwise dispose of real or personal property held by them in their proprietary capacity and to apply their resources and assets for productive, developmental, or welfare purposes, in the exercise or furtherance of their governmental or proprietary powers and functions and thereby ensure their development into self-reliant communities and active participants in the attainment of national goals.
x x x
Article One – The City Mayor
“Section 455. Chief Executive; Powers, Duties and Compensation.
(a) xxx
(b) For efficient, effective and economical governance the purpose of which is the general welfare of the city and its inhabitants pursuant to Section 16 of this Code, the city mayor shall:
(3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agro-industrial development and countryside growth and progress and, relative thereto, shall:
(i) xxx
(ii) xxx
(iii)
(iv) Issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance;
(v) Issue permits, without need of approval therefore from any national agency, for the holding of activities for any charitable or welfare purpose, excluding prohibited games of chance or shows contrary to law, public policy and public morals;
x x x
As gathered from the afore-quoted provisions, permits and licenses are issued for revenue and regulatory purposes, it carries therewith the corollary power to suspend, revoke or even refuse to issue the same including the power to inspect and investigate for any violation of the conditions of their licenses and permit.
The general welfare clause is the delegation in statutory form of the police power of the State to LGUs. Through this, LGUs may prescribe regulations to protect the lives, health, and property of their constituents and maintain peace and order within their respective territorial jurisdictions.
C. HOLDING OF FRANCHISE, SPECIAL AND/OR BUSINESS PERMITS IS NOT A MATTER OF RIGHT BUT A PRIVELEGE
It is a well-settled rule that the issuance of franchise and/or special/business permits are pursuant to laws and ordinances, the entitlement thereof is not a matter of right but a privilege, and neither is it a property.
x x x
In the case of ACEBEDO OPTICAL COMPANY, INC. vs. COURT OF APPEALS, (G.R. No. 100152, March 31, 2000), Supreme Court decided that:
x x x
“xxx a license or a permit is not a contract between the sovereignty and the licensee or permitee, and is not a property in the constitutional sense, as to which the constitutional proscription against impairment of the obligation of contracts may extend. xxx a license is rather in the nature of a special privilege, of permission or authority to do what is within its terms. It is not in any way vested, permanent or absolute”.
x x x
In RCPI v. NTC (150 SCRA 450), Supreme Court held that:
x x x
“A franchise started out as a "royal privilege or (a) branch of the King's prerogative, subsisting in the hands of a subject." A franchise being merely a privilege emanating from the sovereign power of the state and owing its existence to a grant, is subject to regulation by the state itself by virtue of its police power through its administrative agencies.
x x x
Anent thereto, franchise, special and/or business permits are special privileges intended to individual persons or corporations. Being a privilege, it neither confers proprietary rights nor precludes the grantor, licensee or permitee to withdraw the same for causes not in tuned with the law or ordinances.
Therefore, the holding of franchise, special permit and/or business permit relative to the Cockfighting/Cockpit Business Operation is temporary in character.
Hoping that we have guided you accordingly.
In public service,
ATTY. EUFEMIO A. SIMTIM, JR.
City Legal Officer
ABEGAIL F. BATARA, LLB
Legal Assistant II
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER
Tel No. (083) 228-1742
LEGAL OPINION NO. ________
DATE : 27 August 2013
TO : Hon. PETER B. MIGUEL, M.D., FPSO-HNS
City Mayor
RE : AS STATED
___________________________________________________
Kanami Koronadal!
This has reference to your request for legal opinion on the granting of franchise and issuance of special and/or business permit concerning the operation of a cockpit/cockfighting business.
Before delving into details, please be informed that this opinion is supplementary to the legal opinion rendered by the City Legal Office via Legal Opinion No. 2013-08-04 dated 2nd of August 2013. A perusal of the above-mentioned opinion may be helpful and contributive as the controversies and parties involved are the same as this case before us.
I. BRIEF HISTORICAL BACKGROUND OF COCKFIGHTING LAWS
Let us examine the evolution of Laws pertaining to the authorization of the Cockfighting/Cockpit Operation in the LGUs.
A. PRESIDENTIAL DECREE NO. 449, otherwise known as "The Cockfighting Law of 1974".
In 1970s, the desire for stricter licensing requirements of cockpits started to see legislative fruit. The Cockfighting Law of 1974 (PD 449) enacted several of these requisites/restrictions, to wit:
(a) one-cockpit-per-city/municipality rule except if its population exceeds one hundred thousand, in this case, two cockpits maybe operated.
x x x
“Section 5. Cockpits and Cockfighting: In General:
(a) xxx
(b) Establishment of Cockpits. Only one cockpit is allowed in each city or municipality, except that in cities or municipalities with a population of over hunddred thousand, two cockpits maybe established, maintained and operated.
x x x
(b) limitation of ownership of cockpits to Filipino citizens.
x x x
“Section 5. Cockpits and Cockfighting: In General:
(a) Ownership, Operation and Management of Cockpits. Only Filipino citizens not otherwise inhibited by existing laws shall be allowed to own, manage and operate cockpits. Cooperative capitalization is encouraged.
x x x
(c) it was the city or municipal mayor who was authorized to issue licenses for the operation and maintenance of cockpits, subject to the approval of the Chief of Constabulary or his authorized representatives.
x x x
“Section 6.LICENSING OF COCKPITS.
City and Municipal mayors are authorized to issue licenses for the operation and maintenance of cockpits subject to the approval of the Chief of Constabulary or his authorized representatives.”
x x x
Thus, the sole discretion to authorize the operation of cockpits as contained in previous laws was removed from the local government unit since the approval of the Chief of Constabulary was required
B. PRESIDENTIAL DECREE NO. 1803, otherwise known as "Creating the Philippine Gamefowl Commission".
Then came P.D. No. 1803 which established the Philippine Gamefowl Commission and imposed further structure in the regulation of cockfighting.
x x x
"Section 4.
City and Municipal Mayors with the concurrence of their respectives Sangguniang Panglunsod or Sangguniang Bayan, shall have the authority to license and regulate regular cockfighting, under the supervision of the City Mayor and the Provincial Governor, as the case may be.
x x x
Based on the foregoing, the approval of the Chief Constabulary or his representative as enunciated in PD 449 was expressly removed.
However, the preceding section was subsequently amended by Presidential Decree 1802-A, otherwise known as "Amending Section 4 of Presidential Decree No. 1802". The amended provision ordained:
x x x
"Section 4.
City and Municipal Mayors with the concurrence of their respective "Sanggunians" shall have the authority to license and regulate regular cockfighting pursuant to the rules and regulations promulgated by the Commission and subject to its review and supervision.
x x x
As above-mentioned, such amendment removes the supervision exercised by the mayor or governor and substituting in their stead the Philippine Gamefowl Commission (PGC). But the PGC’s power of supervision under such law has been clarified by the Honorable Supreme Court in the light of the Local Government Code then in effect, thus:
x x x
“According to the Local Government Code, the municipal mayor has the power to "grant licenses and permits in accordance with existing laws and municipal ordinances and revoke them for violation of the conditions upon which they have been granted," and the Sangguniang Bayan is authorized to "regulate cockpits, cockfighting and the keeping or training of gamecocks, subject to existing guidelines promulgated by the Philippine Gamefowl Commission."
A study of the above-cited powers shows that it is the municipal mayor with the authorization of the Sangguniang Bayan that has the primary power to issue licenses for the operation of ordinary cockpits. Even the regulation of cockpits is vested in the municipal officials, subject only to the guidelines laid down by the Philippine Gamefowl Commission. Its power to license is limited only to international derbies and does not extend to ordinary cockpits. Over the latter kind of cockpits, it has the power not of control but only of review and supervision.
We have consistently held that supervision means "overseeing or the power or authority of an officer to see that their subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or steps as prescribed by law to make them perform their duties." Supervision is a lesser power than control, which connotes "the power of the officer to alter or modify or set aside what a subordinate had done in the performance of his duties and to substitute the judgment of the former for that of the latter." Review, on the other hand, is a reconsideration or reexamination for purposes of correction.
As thus defined, the power of supervision does not snow the supervisor to annul the acts of the subordinate, for that comes under the power of control. What it can do only is to see to it that the subordinate performs his duties in accordance with law. The power of review is exercised to determine whether it is necessary to correct the acts of the subordinate. If such correction is necessary, it must be done by the authority exercising control over the subordinate or through the instrumentality of the courts of justice, unless the subordinate motu proprio corrects himself after his error is called to his attention by the official exercising the power of supervision and review over him.
At that, even the power of review vested in the Philippine Gamefowl Commission by P.D. 1802-A may have been modified by the Local Government Code, which became effective on February 14, 1983. Under the Code, the Sangguniang Panlalawigan is supposed to examine the ordinances, resolutions and executive orders issued by the municipal government and to annul the same, but only on one ground, to wit, that it is beyond the powers of the municipality or ultra vires. Significantly, no similar authority is conferred in such categorical terms on the Philippine Gamefowl Commission regarding the licensing and regulation of cockpits by the municipal government.
The conferment of the power to license and regulate municipal cockpits in the municipal authorities is in line with the policy of local autonomy embodied in Article II, Section 10, and Article XI of the 1973 Constitution. It is also a recognition, as the Court of Appeals correctly points out, of the superior competence of the municipal officials in dealing with this local matter with which they can be expected to be more knowledgeable than the national officials. Surely, the Philippine Gamefowl Commission cannot claim to know more than the municipal mayor and the Sangguniang Bayan of Bogo, Cebu, about the issues being disputed by the applicants to the cockpit license.” [PHILIPPINE GAMEFOWL COMMISSION AND HEE ACUSAR vs.HON. INTERMEDIATE APPELLATE COURT, MAYOR CELESTINO E. MARTINEZ, JR., THE SANGGUNIANG BAYAN OF BOGO (CEBU), and SANTIAGO SEVILLA, G.R. No. 72969-70 December 17, 1986]
x x x
C. REPUBLIC ACT 7160, otherwise known as "The Local Government Code of 1991".
More importantly, Republic Act 7160 has already conferred such power to the Sangguniang Panlungsod. Said law provides that:
x x x
Article Three – The Sangguniang Panlungsod
Section 458.Powers, Duties, Functions and Compensation. –
(a) The Sangguniang Panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:
(1) xxx
(2) xxx
(3) Subject to the provisions of Book II of this Code, enact ordinances granting franchises and authorizing the issuance of permits or licenses, upon such conditions and for such purposes intended to promote the general welfare of the inhabitants of the city and pursuant to this legislative authority shall:
(i)xxx
(ii)xxx
(iii)xxx
(iv)xxx
(v) Any law to the contrary notwithstanding, authorize and license the establishment, operation, and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks: Provided, That existing rights should not be prejudiced;
x x x
Article 99, Rule XV of the Local Government Code’s Implementing Rules and Regulations provides in toto a similar provision.
There is no more forceful authority on this landmark legislation than Senator Aquilino Pimentel, Jr., its principal author. In his annotations to the Local Government Code, he makes the following remarks relating to Section 448(a)(3)(v):
x x x
"12.Licensing power. In connection with the power to grant licenses lodged with it, the Sangguniang Panlungsod may now regulate not only businesses but also occupations, professions or callings that do not require government examinations within its jurisdiction. It may also authorize and license the establishment, operation and maintenance of cockpits, regulate cockfighting, and the commercial breeding of gamecocks."
x x x
Ergo, based on the preceding provisions and annotation, the power to license cockpits and permits for cockfighting has been removed completely from the Gamefowl Commission and devolved to Sangguniang Panlungsod by virtue of R.A.7160.
Again, it must be stressed out also that even before the advent of RA 7160, the Court interpreted in a series of cases that the Philippine Gamefowl Commission's power of review and supervision does not extend to licensing which belongs exclusively to the Sangguniang Panlungsod. The landmark cases of the Supreme Court elucidates further in the following cases:
(a) Deang v. Intermediate Appellate Court, 24 September 1987, 154 SCRA 250)
(b) Municipality of Malolos v. Libangang Malolos Inc., 11 August 1988, 164 SCRA 290
(c) Adlawan v. Intermediate Appellate Court, 9 February 1989, 170 SCRA 165).
In the afore-cited case of Philippine Gamefowl Commission et al. vs. Hon. Intermediate Appellate Court, et al., the Honorable Supreme Court has intoned:
xxx xxx xxx
“This is as good an occasion as any to stress the commitment of the Constitution to the policy of local autonomy which is intended to provide the needed impetus and encouragement to the development of our local political subdivisions as "self-reliant communities." In the words of Jefferson, "Municipal corporations are the small republics from which the great one derives its strength." The vitalization of local governments will enable their inhabitants to fully exploit their resources and, more important, imbue them with a deepened sense of involvement in public affairs as members of the body politic. This objective could be blunted by undue interference by the national government in purely local affairs which are best resolved by the officials and inhabitants of such political units. The decision we reach today conforms not only to the letter of the pertinent laws but also to the spirit of the Constitution.”
xxx xxx xxx
It must be noted that the final provisions of RA 7160 decreed that:
xxx xxx xxx
“Title Four - Final Provisions
"Section. 534.
(a) xxx
(b) xxx
(c) xxx
(d) xxx
(e) xxx
(f) all general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of this Code are hereby repealed or modified accordingly.”
xxx xxx xxx
The above section repeals or amends expressly several laws mentioned thereat. However, PD 449 was not among them. It is a cardinal rule in statutory construction that implied repeals are disfavoured and will not be so declared --
(a) UNLESS the intent of the legislators is manifest and unless the repugnancy between the two is not only irreconcilable but also clear and convincing as a result of the language used,
(b) UNLESS the latter Act fully embraces the subject matter of the earlier.
Hence, the conditions set therein still find application.
xxx xxx xxx
“Except as provided in this Decree, cockfighting shall be allowed only in licensed cockpits during Sundays and legal holidays and during local fiestas for not more than three days. It may also be held during provincial, city or municipal, agricultural, commercial or industrial fair, carnival or exposition for a similar period of three days upon resolution of the province, city or municipality where such fair, carnival or exposition is to be held, subject to the approval of the Chief of Constabulary or his authorized representative: Provided, that, no cockfighting on the occasion of such fair, carnival or exposition shall be allowed within the month of a local fiesta or for more than two occasions a year in the same city or municipality: Provided, further, that no cockfighting shall be held on December 30 (Rizal Day), June 12 (Philippine Independence Day) November 30 (National Heroes Day), Holy Thursday, Good Friday, Election or Referendum Day and during Registration Days for such election or referendum. (P.D. 449, Section 5)
xxx xxx xxx
Thus, the Honorable Supreme Court has ruled:
xxx xxx xxx
"We do not doubt, however, the ability of the national government to implement police power measures that affect the subjects of municipal government, especially if the subject of regulation is a condition of universal character irrespective of territorial jurisdictions. Cockfighting is one such condition. It is a traditionally regulated activity, due to the attendant gambling involved or maybe even the fact that it essentially consists of two birds killing each other for public amusement. Laws have been enacted restricting the days when cockfights could be held, and legislation has even been emphatic that cockfights could not be held on holidays celebrating national honor such as Independence Day (R.A. 137) and Rizal Day (R.A. 229)." (Tan vs. Perena, G.R. No. 149743, February 18, 2005)
xxx xxx xxx
II. THE POWER AND AUTHORITY OF THE CITY MAYOR IN ISSUING A SPECIAL AND/OR BUSINESS PERMITS AS PROVIDED FOR BY LAWS AND CITY ORDINANCE
A. THE ESSENTIAL REQUISITES/QUALIFICATIONS FOR THE ISSUANCE OF SPECIAL /BUSINESS PERMITS FOR THE OPERATION OF COCKFIGHTING BUSINESS
The power and authority of the City Mayor to issue the Mayor’s Permit for cockpits owners, operators, licensees, promoters and cockpit personnel, is expressly provided under the 2008 Local Revenue Code of the City of Koronadal which provides that:
xxx xxx xxx
“CHAPTER 3. PERMIT AND REGULATORY FEES
Article K. – PERMIT FEE FOR COCKPITS OWNERS, OPERATORS, LICENSEES, PROMOTERS AND COCKPIT PERSONNEL
Sec. 3K. 01. Imposition of Fees. There shall be collected the following Mayor’s Permit fees from cockpit operators/owners/licensees and cockpit personnel:
(a) From the owner/operator/licensees of the cockpit:
xxx xxx xxxx
xxx xxx xxxx
(b) From Cockpit personnel
xxx xxx xxxx
xxx xxx xxxx
Sec. 3K. 02. Time and Manner of Payment.
(a) The application filing fee is payable to the City Treasurer upon application for a permit or license to operate and maintain cockpits.
(b) The cockpit registration fee is also payable upon application for a permit before a cockpit can operate and within the first twenty (20) days of January of each year in case of renewal thereof.
(c) The permit fees on cockpit personnel shall be paid before they participate in a cockfight and shall be paid annually upon renewal of the permit on the birth month of the permittee.
Sec. 3K. 03. Administrative Provisions.
(a) Ownership, operation and management of cockpit. Only Filipino Citizens not otherwise inhibited by existing ordinances or laws shall be allowed to own, manage and operate cockpits. Cooperative capitalization is encouraged.
(b) Establishment of Cockpits. The Sangguninang Panlungsod shall determine the number of cockpits to be allowed in this pursuant to the Philippine's Game and Fouls Commission PD449 & PD 1802.
(c) Cockpit-size and Construction. Cockpits shall be constructed and operated within the appropriate areas as prescribed in Zoning Law or Ordinance. In the absence of such law or ordinance, the City shall see to it that no cockpits are constructed within or near existing residential or commercial areas, hospitals, school buildings, churches or other public buildings. OWNERS, LESSEES, or OPERATORS of cockpits which are now in existence and do not conform to this requirement are required to comply with these provisions within a period to be specified by the City Mayor. Approval or issuance of building permits for the construction of cockpits shall be made by the City Engineer in accordance with existing ordinances, laws and practices.
(d) Only duly registered and licensed promoters, referees, cashiers, bet managers, pit referees, bet takers, or gaffers shall take part in all kinds of cockfights held in this City. No OPERATOR or OWNER OF A COCKPIT shall employ or allow any of the above-named personnel to participate in a cockfight unless he has registered and paid the fee herein required.
(e) Upon payment of the fees herein imposed, the corresponding Mayor's Permit shall be issued.
x x x
Article L. – SPECIAL PERMIT FOR DERBY COCKFIGHTING
“Sec.3L.01. Imposition of Fees. There shall be collected the following fees per day for cockfighting:
(a) xxx
(b) xxx
x x x
Notably, Sec. 3K. 04, Article K, of the said Ordinance provides:
xxx xxx xxx
“Sec 3K. 04. Applicability Clause. The provision of PD 449, otherwise known as the Cockfighting Law of 1974, PD 1802 (Creating the Philippines Gamefowl Commission), and such other pertinent laws shall apply to all matters regarding the operation of cockpits and the holding of cockfights in this City.”
xxx xxx xxx
Similarly, Sec. 3L. 05, Article L, of the same Ordinance likewise provides:
xxx xxx xxx
Sec. 3L. 05. Applicability Clause. The provision of PD 449, otherwise known as the Cockfighting Law of 1974, PD 1802 (Creating the Philippines Gamefowl Commission), and such other pertinent laws shall apply to all matters regarding the operation of cockpits and the holding of cockfights in this city.”
xxx xxx xxx
Presidential Decree No. 449 provides:
xxx xxx xxx
“Section 5. Cockpits and Cockfighting: In General:
(a) Ownership, Operation and Management of Cockpits. Only Filipino citizens not otherwise inhibited by existing laws shall be allowed to own, manage and operate cockpits. Cooperative capitalization is encouraged.
(b) Establishment of Cockpits. Only one cockpit shall be allowed in each city or municipality, except that in cities or municipalities with a population of over one hundred thousand, two cockpits may be established, maintained and operated.
(c) Cockpits Site and Construction. Cockpits shall be constructed and operated within the appropriate areas as prescribed in Zoning Law or Ordinance. In the absence of such law or ordinance, the local executives shall see to it that no cockpits are constructed within or near existing residential or commercial areas, hospitals, school buildings, churches or other public buildings. Owners, lessees, or operators of cockpits which are now in existence and do not conform to this requirement are given three years from the date of effectivity of this Decree to comply herewith. Approval or issuance of building permits for the construction of cockpits shall be made by the city or provincial engineer in accordance with their respective building codes, ordinances or engineering laws and practice.
(d) Holding of Cockfights. Except as provided in this Decree, cockfighting shall be allowed only in licensed cockpits during Sundays and legal holidays and during local fiestas for not more than three days. It may also be held during provincial, city or municipal, agricultural, commercial or industrial fair, carnival or exposition for a similar period of three days upon resolution of the province, city or municipality where such fair, carnival or exposition is to be held, subject to the approval of the Chief of Constabulary or his authorized representative: Provided, that, no cockfighting on the occasion of such fair, carnival or exposition shall be allowed within the month of a local fiesta or for more than two occasions a year in the same city or municipality: Provided, further, that no cockfighting shall be held on December 30 (Rizal Day), June 12 (Philippine Independence Day) November 30 (National Heroes Day), Holy Thursday, Good Friday, Election or Referendum Day and during Registration Days for such election or referendum. (P.D. 449, Section 5)
xxx xxx xxx
It is important to note that under the Local Government Code of 1991, the City Mayor shall “issue licenses and permits and suspend and revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance” [Sec. 455 (b) (3) (iv)]. The 2008 Local Revenue Code of the City of Koronadal has already set the policy and guidelines for the issuance such permit or license, incorporating therein the provisions of PD 449. In issuing the Mayor’s Permit contemplated in the ordinance, the City Mayor is guided by such policy and guidelines.
To sum up, based on the foregoing quoted provisions of national laws and ordinance, the City Mayor may issue the special and/or regular business permits in the conduct of cockfighting business provided all the essential requisites/qualifications are complied with, to wit:
(a) limitation of ownership of cockpits to Filipino citizens, although cooperative capitalization is encouraged;
(b) one-cockpit-per-city-rule except if its population exceeds one hundred thousand, in which case, two cockpits may be operated;
(c) the OWNERS, LESSEES, or OPERATORS are in actual possession and/or ownership of the licensed cockpit where regular and/or special cockfights may be held;
(d) only duly registered and licensed Cockpit Personnel shall take part in all cockfights held in this City;
(e) payment of imposed/necessary fees as scheduled shall be made before owners, lessees, operators and cockpit personnel may participate in cockfights.
However, mere compliance to all the above-mentioned requisites for the application of mayor’s special and/or business permit for the cockfighting business would not warrant or render the automatic approval of the City Mayor, otherwise it would tantamount to the undue encroachment on the Mayor’s administrative prerogatives. Such power is discretionary and not merely a ministerial duty on his part.
B. THE BENEFITS AND LIMITATIONS ACQUIRED BY THE OWNERS, LESSEES, or OPERATORS UPON ISSUANCE OF SPECIAL/BUSINESS PERMITS RELATIVE TO THE OPERATION OF COCKFIGHTING BUSINESS
Upon compliance with the essential requirements/qualifications provided for by PD 449 and the City Ordinance, and upon approval of the City Mayor and/ or upon resolution of Sangguniang Panlungsod as the case maybe, OWNERS, LESSEES, or OPERATORS of Cockfighting Trade shall operate or conduct their business within the bounds of the mentioned laws, subject further to the police power measures of the local government.
In the case of Social Justice Society vs. Atienza, G.R. No. 156052, February 13, 2008, the Supreme Court decided that:
“Police power is the plenary power vested in the legislature to make statutes and ordinances to promote the health, morals, peace, education, good order or safety and general welfare of the people. While the police power rest primarily with the national legislature, such power may be delegated. Section 16 of the Local Government Code known as the general welfare clause, encapsulates the delegated police power to local governments:
x x x
“Section 16.General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied there from, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants”.
X x x
“Section 18. Power to Generate and Apply Resources. - Local government units shall have the power and authority to establish an organization that shall be responsible for the efficient and effective implementation of their development plans, program objectives and priorities; to create their own sources of revenues and to levy taxes, fees, and charges which shall accrue exclusively for their use and disposition and which shall be retained by them; to have a just share in national taxes which shall be automatically and directly released to them without need of any further action; to have an equitable share in the proceeds from the utilization and development of the national wealth and resources within their respective territorial jurisdictions including sharing the same with the inhabitants by way of direct benefits; to acquire, develop, lease, encumber, alienate, or otherwise dispose of real or personal property held by them in their proprietary capacity and to apply their resources and assets for productive, developmental, or welfare purposes, in the exercise or furtherance of their governmental or proprietary powers and functions and thereby ensure their development into self-reliant communities and active participants in the attainment of national goals.
x x x
Article One – The City Mayor
“Section 455. Chief Executive; Powers, Duties and Compensation.
(a) xxx
(b) For efficient, effective and economical governance the purpose of which is the general welfare of the city and its inhabitants pursuant to Section 16 of this Code, the city mayor shall:
(3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agro-industrial development and countryside growth and progress and, relative thereto, shall:
(i) xxx
(ii) xxx
(iii)
(iv) Issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance;
(v) Issue permits, without need of approval therefore from any national agency, for the holding of activities for any charitable or welfare purpose, excluding prohibited games of chance or shows contrary to law, public policy and public morals;
x x x
As gathered from the afore-quoted provisions, permits and licenses are issued for revenue and regulatory purposes, it carries therewith the corollary power to suspend, revoke or even refuse to issue the same including the power to inspect and investigate for any violation of the conditions of their licenses and permit.
The general welfare clause is the delegation in statutory form of the police power of the State to LGUs. Through this, LGUs may prescribe regulations to protect the lives, health, and property of their constituents and maintain peace and order within their respective territorial jurisdictions.
C. HOLDING OF FRANCHISE, SPECIAL AND/OR BUSINESS PERMITS IS NOT A MATTER OF RIGHT BUT A PRIVELEGE
It is a well-settled rule that the issuance of franchise and/or special/business permits are pursuant to laws and ordinances, the entitlement thereof is not a matter of right but a privilege, and neither is it a property.
x x x
In the case of ACEBEDO OPTICAL COMPANY, INC. vs. COURT OF APPEALS, (G.R. No. 100152, March 31, 2000), Supreme Court decided that:
x x x
“xxx a license or a permit is not a contract between the sovereignty and the licensee or permitee, and is not a property in the constitutional sense, as to which the constitutional proscription against impairment of the obligation of contracts may extend. xxx a license is rather in the nature of a special privilege, of permission or authority to do what is within its terms. It is not in any way vested, permanent or absolute”.
x x x
In RCPI v. NTC (150 SCRA 450), Supreme Court held that:
x x x
“A franchise started out as a "royal privilege or (a) branch of the King's prerogative, subsisting in the hands of a subject." A franchise being merely a privilege emanating from the sovereign power of the state and owing its existence to a grant, is subject to regulation by the state itself by virtue of its police power through its administrative agencies.
x x x
Anent thereto, franchise, special and/or business permits are special privileges intended to individual persons or corporations. Being a privilege, it neither confers proprietary rights nor precludes the grantor, licensee or permitee to withdraw the same for causes not in tuned with the law or ordinances.
Therefore, the holding of franchise, special permit and/or business permit relative to the Cockfighting/Cockpit Business Operation is temporary in character.
Hoping that we have guided you accordingly.
In public service,
ATTY. EUFEMIO A. SIMTIM, JR.
City Legal Officer
ABEGAIL F. BATARA, LLB
Legal Assistant II
Thursday, November 28, 2013
LEGAL OPINION RE TAXABILITY OF SSS MACHINERIES [DELAYED POSTING]
Republic of the Philippines
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER
LEGAL OPINION NO.___________
DATE : 30 May 2011
TO : ENGR. ARTHUR R. BUZARANG, MPA
OIC-City Assessor
RE : Taxability of Social Security System’s (SSS) Machineries
______
Sir:
This refers to your query on whether or not the machineries owned by the Social Security System (SSS) are subject to real property tax (RPT), a query which arises from the claim of the SSS for exemption therefrom under Section 16 of Republic Act 8282, to wit:
x x x
“All laws to the contrary notwithstanding, the SSS and all its assets and properties, all contributions collected and all accruals thereto and income or investment earnings therefrom, as well as all supplies, equipment, papers or documents shall be exempt from any tax, assessment, fee, charge, or customs or import duty, and all benefit payments made by the SSS shall likewise be exempt from all kinds of taxes, fees or charges and shall not be liable to attachments, garnishments, levy or seizure by or under any legal or equitable process whatsoever, either before or after receipt by the person or persons entitled thereto, except to pay any debt of the member to the SSS. No tax measure of whatever nature enacted shall apply to the SSS, unless it expressly revokes the declared policy of the State in Section 2 hereof granting tax-exemption to the SSS. Any tax assessment imposed against the SSS shall be null and void.”
x x x
The undersigned is of the opinion that the said machineries are indeed NON-TAXABLE SUBJECT TO QUALIFICATIONS SET BY LAW.
The Honorable Supreme Court, in the case of SOCIAL SECURITY SYSTEM vs. CITY OF BACOLOD and MIGUEL REYNALDO as City Treasurer of Bacolod City [G.R. No. L-35726, 21 July 1982], had the occasion to rule that Republic Act No. 1161, otherwise known as Social Security Act of 1954, has removed all doubts as to the exemption of the SSS from taxation by explicitly providing for such exemption. Said law contained the same provision quoted above. While it may be argued that the Local Government Code of 1991 has withdrawn certain tax privileges, it is important to underscore that the Supreme Court construed that SSS falls squarely within the definition of the terms "Government of the Republic of the Philippines" and "Republic of the Philippines" whose real property are exempt from the payment of real property tax. More so, Republic Act 8282 was enacted subsequent to the effectivity of the Local Government Code of 1991.
However, such exemption is subject the qualification provided under Section 234 of RA 7160, to wit:
x x x
Section 234. Exemptions from Real Property Tax. - The following are exempted from payment of the real property tax:
(a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person; [emphasis added]
x x x
The above view finds support from the 7 November 2003 Bureau of Local Government Finance Opinion issued by Executive Director Ma. Presentation R. Montesa, which reads, to wit:
x x x
“This Bureau, therefore, agrees with the opinion rendered by Atty. Monteiro that SSS maintains its real property tax-exempt status even after the effectivity of R.A. No. 7160. However, on the issue of the subject real properties of SSS, the beneficial use of which are being let to private persons, for consideration or otherwise, this Bureau believes otherwise.
Granting arguendo, that there was no distinction made under the SSS Law with regard to its assets, particularly real properties, this Bureau believes that nowhere in its mandate, that in furtherance of its main purpose, the real properties owned by SSS shall be let to private or taxable persons and still be exempt from all kinds of taxes, fees or charges. This would violate the principle of "inclusio unius est exclusio alterius" (what is not included is deemed excluded). It is therefore more logical to conclude that what was exempted under the said special law (SSS charter) are those real properties which are actually, directly and exclusively used for the operation in the achievement of its existence. R.A. No. 7160, a general law, however, specifically provides for the limitations of the said exemption granted to SSS' real properties from real property tax when the beneficial use thereof has been granted for consideration or otherwise to a taxable person, and those acquired or foreclosed properties and assets not yet titled in the name of SSS.
Moreover, Supreme Court (SC) Decision (No. L-35726), entitled: "SOCIAL SECURITY SYSTEM vs. CITY OF BACOLOD and MIGUEL REYNALDO as CITY TREASURER OF BACOLOD CITY" cited by Atty. Monteiro, the Court held, thus:
". . . . What is decisive is that the properties possessed by the SSS, albeit devoted to private or proprietary purpose, are in fact owned by the government of the Philippines. As such they are exempt from realty taxes. It is axiomatic that when public property is involved, exemption is the rule and taxation, the exception." (Emphasis supplied)
In another SC Decision (G.R. No. 120082), in the case of "MACTAN CEBU INTERNATIONAL AIRPORT AUTHORITY, petitioner, vs. HON. FERDINAND J. MARCOS, et al.," the term "Government of the Republic of the Philippines" is considered synonymous with the term "Republic of the Philippines."
In view hereof, this Bureau is of the opinion that the SSS does not fall under the category of government-owned or controlled corporations. Hence, we further believe that its real property tax exemption provided for under its charter remains covered by the exemption proviso of Section 234(a) of the said Code (R.A. No. 7160) which provides below:
"SEC. 234. Exemptions from Real Property Tax. — The following are exempted from payment of the real property tax:
"(a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person;"
x x x
In an answer to the request of MR. MARIANO S. TOLENTINO, Asst. Vice-President of Social Security System (SSS), Executive Director Montesa, on 1 June 2009, reiterated the earlier stance, thus:
x x x
“This refers to your letter dated November 18, 2008, which, in effect, is a follow- up of your letter dated May 16, 2007 addressed to the City Assessor of Makati City, and forwarded to this Bureau regarding your request for exemption from the payment of real property tax on the condominium units located thereat which are owned by the Social Security System (SSS), but are held-in-trust by Philam Tower Realty Corporation (PTRC).
It may be recalled that your request was anchored on R.A. No. 8282, otherwise known as the Social Security Act of 1987 particularly Section 16 thereof.
This Bureau, under its letter dated May 16, 2008, in reply to the said letter, required that office to submit a contract and/or agreement that was executed by and between the SSS and PTRC, in order to determine fully the tax exemption privileges of SSS with regard to its real properties.
Apparently, the Memorandum of Agreement (MOA) submitted reveals that the three (3) condominium units owned by SSS are intended primarily and exclusively for lease to private individuals. The said MOA further provides that PTRC is a corporation organized and existing under the laws of the Philippines. More importantly, PTRC is acting in behalf of and/or in trust for SSS properties which are specifically intended for lease.
Consequently, this Bureau concurs with the views expressed by the City Assessor of Makati City, in his undated letter, copy attached, addressed to Mr. Baltazar C. Cajilig, Officer-In-Charge, Asset Management Department, that office.
In view hereof, attention is invited on this Bureau’s ruling issued under its 1st Indorsement, copy enclosed, dated June 17, 1997, which reads in part, as follows:
“The tax exemption privileges therefore of the SSS shall continue unless expressly and specifically revoked, provided, however, that: 1) the beneficial use of the subject properties has not been let for consideration or otherwise to a taxable person pursuant to Section 234 (a) of the Code; and 2) the acquired or foreclosed properties and assets not yet titled in the name of SSS shall be declared as taxable.”
Section 234 (a) of the Code provides:
SECTION 234. Exemptions from Real Property Tax.-The following are exempted from payment of the real property tax:
“(a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person;”(Underscoring ours)
Moreover, attention is invited on this Bureau’s ruling dated November 7, 2003, copy enclosed, which provides in part, to wit:
“In view of the foregoing, this Bureau maintains its stand embodied under our above-mentioned 1st Indorsement dated November 17, 1997. The subject real properties of SSS. . . .being occupied/tenanted for dwelling purposes by private persons or individuals for consideration or otherwise, should be included in the “Taxable” roll of real properties.”
In the light of all the foregoing, this Bureau reiterates its ruling rendered under the above-mentioned 1st Indorsement dated June 17, 1997. Thus, SSS shall continue to enjoy its exemption from the payment of real property tax except, however, when the beneficial use of the subject properties has been granted, for consideration or otherwise, to a taxable person pursuant to the above-mentioned provision of the Local Government Code.
x x x
RESPECTFULLY SUBMITTED:
EUFEMIO A. SIMTIM, JR.
City Legal Officer
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER
LEGAL OPINION NO.___________
DATE : 30 May 2011
TO : ENGR. ARTHUR R. BUZARANG, MPA
OIC-City Assessor
RE : Taxability of Social Security System’s (SSS) Machineries
______
Sir:
This refers to your query on whether or not the machineries owned by the Social Security System (SSS) are subject to real property tax (RPT), a query which arises from the claim of the SSS for exemption therefrom under Section 16 of Republic Act 8282, to wit:
x x x
“All laws to the contrary notwithstanding, the SSS and all its assets and properties, all contributions collected and all accruals thereto and income or investment earnings therefrom, as well as all supplies, equipment, papers or documents shall be exempt from any tax, assessment, fee, charge, or customs or import duty, and all benefit payments made by the SSS shall likewise be exempt from all kinds of taxes, fees or charges and shall not be liable to attachments, garnishments, levy or seizure by or under any legal or equitable process whatsoever, either before or after receipt by the person or persons entitled thereto, except to pay any debt of the member to the SSS. No tax measure of whatever nature enacted shall apply to the SSS, unless it expressly revokes the declared policy of the State in Section 2 hereof granting tax-exemption to the SSS. Any tax assessment imposed against the SSS shall be null and void.”
x x x
The undersigned is of the opinion that the said machineries are indeed NON-TAXABLE SUBJECT TO QUALIFICATIONS SET BY LAW.
The Honorable Supreme Court, in the case of SOCIAL SECURITY SYSTEM vs. CITY OF BACOLOD and MIGUEL REYNALDO as City Treasurer of Bacolod City [G.R. No. L-35726, 21 July 1982], had the occasion to rule that Republic Act No. 1161, otherwise known as Social Security Act of 1954, has removed all doubts as to the exemption of the SSS from taxation by explicitly providing for such exemption. Said law contained the same provision quoted above. While it may be argued that the Local Government Code of 1991 has withdrawn certain tax privileges, it is important to underscore that the Supreme Court construed that SSS falls squarely within the definition of the terms "Government of the Republic of the Philippines" and "Republic of the Philippines" whose real property are exempt from the payment of real property tax. More so, Republic Act 8282 was enacted subsequent to the effectivity of the Local Government Code of 1991.
However, such exemption is subject the qualification provided under Section 234 of RA 7160, to wit:
x x x
Section 234. Exemptions from Real Property Tax. - The following are exempted from payment of the real property tax:
(a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person; [emphasis added]
x x x
The above view finds support from the 7 November 2003 Bureau of Local Government Finance Opinion issued by Executive Director Ma. Presentation R. Montesa, which reads, to wit:
x x x
“This Bureau, therefore, agrees with the opinion rendered by Atty. Monteiro that SSS maintains its real property tax-exempt status even after the effectivity of R.A. No. 7160. However, on the issue of the subject real properties of SSS, the beneficial use of which are being let to private persons, for consideration or otherwise, this Bureau believes otherwise.
Granting arguendo, that there was no distinction made under the SSS Law with regard to its assets, particularly real properties, this Bureau believes that nowhere in its mandate, that in furtherance of its main purpose, the real properties owned by SSS shall be let to private or taxable persons and still be exempt from all kinds of taxes, fees or charges. This would violate the principle of "inclusio unius est exclusio alterius" (what is not included is deemed excluded). It is therefore more logical to conclude that what was exempted under the said special law (SSS charter) are those real properties which are actually, directly and exclusively used for the operation in the achievement of its existence. R.A. No. 7160, a general law, however, specifically provides for the limitations of the said exemption granted to SSS' real properties from real property tax when the beneficial use thereof has been granted for consideration or otherwise to a taxable person, and those acquired or foreclosed properties and assets not yet titled in the name of SSS.
Moreover, Supreme Court (SC) Decision (No. L-35726), entitled: "SOCIAL SECURITY SYSTEM vs. CITY OF BACOLOD and MIGUEL REYNALDO as CITY TREASURER OF BACOLOD CITY" cited by Atty. Monteiro, the Court held, thus:
". . . . What is decisive is that the properties possessed by the SSS, albeit devoted to private or proprietary purpose, are in fact owned by the government of the Philippines. As such they are exempt from realty taxes. It is axiomatic that when public property is involved, exemption is the rule and taxation, the exception." (Emphasis supplied)
In another SC Decision (G.R. No. 120082), in the case of "MACTAN CEBU INTERNATIONAL AIRPORT AUTHORITY, petitioner, vs. HON. FERDINAND J. MARCOS, et al.," the term "Government of the Republic of the Philippines" is considered synonymous with the term "Republic of the Philippines."
In view hereof, this Bureau is of the opinion that the SSS does not fall under the category of government-owned or controlled corporations. Hence, we further believe that its real property tax exemption provided for under its charter remains covered by the exemption proviso of Section 234(a) of the said Code (R.A. No. 7160) which provides below:
"SEC. 234. Exemptions from Real Property Tax. — The following are exempted from payment of the real property tax:
"(a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person;"
x x x
In an answer to the request of MR. MARIANO S. TOLENTINO, Asst. Vice-President of Social Security System (SSS), Executive Director Montesa, on 1 June 2009, reiterated the earlier stance, thus:
x x x
“This refers to your letter dated November 18, 2008, which, in effect, is a follow- up of your letter dated May 16, 2007 addressed to the City Assessor of Makati City, and forwarded to this Bureau regarding your request for exemption from the payment of real property tax on the condominium units located thereat which are owned by the Social Security System (SSS), but are held-in-trust by Philam Tower Realty Corporation (PTRC).
It may be recalled that your request was anchored on R.A. No. 8282, otherwise known as the Social Security Act of 1987 particularly Section 16 thereof.
This Bureau, under its letter dated May 16, 2008, in reply to the said letter, required that office to submit a contract and/or agreement that was executed by and between the SSS and PTRC, in order to determine fully the tax exemption privileges of SSS with regard to its real properties.
Apparently, the Memorandum of Agreement (MOA) submitted reveals that the three (3) condominium units owned by SSS are intended primarily and exclusively for lease to private individuals. The said MOA further provides that PTRC is a corporation organized and existing under the laws of the Philippines. More importantly, PTRC is acting in behalf of and/or in trust for SSS properties which are specifically intended for lease.
Consequently, this Bureau concurs with the views expressed by the City Assessor of Makati City, in his undated letter, copy attached, addressed to Mr. Baltazar C. Cajilig, Officer-In-Charge, Asset Management Department, that office.
In view hereof, attention is invited on this Bureau’s ruling issued under its 1st Indorsement, copy enclosed, dated June 17, 1997, which reads in part, as follows:
“The tax exemption privileges therefore of the SSS shall continue unless expressly and specifically revoked, provided, however, that: 1) the beneficial use of the subject properties has not been let for consideration or otherwise to a taxable person pursuant to Section 234 (a) of the Code; and 2) the acquired or foreclosed properties and assets not yet titled in the name of SSS shall be declared as taxable.”
Section 234 (a) of the Code provides:
SECTION 234. Exemptions from Real Property Tax.-The following are exempted from payment of the real property tax:
“(a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person;”(Underscoring ours)
Moreover, attention is invited on this Bureau’s ruling dated November 7, 2003, copy enclosed, which provides in part, to wit:
“In view of the foregoing, this Bureau maintains its stand embodied under our above-mentioned 1st Indorsement dated November 17, 1997. The subject real properties of SSS. . . .being occupied/tenanted for dwelling purposes by private persons or individuals for consideration or otherwise, should be included in the “Taxable” roll of real properties.”
In the light of all the foregoing, this Bureau reiterates its ruling rendered under the above-mentioned 1st Indorsement dated June 17, 1997. Thus, SSS shall continue to enjoy its exemption from the payment of real property tax except, however, when the beneficial use of the subject properties has been granted, for consideration or otherwise, to a taxable person pursuant to the above-mentioned provision of the Local Government Code.
x x x
RESPECTFULLY SUBMITTED:
EUFEMIO A. SIMTIM, JR.
City Legal Officer
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