By Atty. Eduardo T. Reyes III
If there is one good thing that came out of the pandemic that precipitated the impositions of lockdowns, social-distancing measures and ban on sale and consumption of liquor in public, it is perhaps the respite from the ructions that erupt from bibulous videoke-singing in some insalubrious drinking spot nearby.
Filipinos are known for their fondness for fiestas and instant parties as they thrive in a convivial environment. Catalyzed by some doze of liquor, the usually bashful, docile and soft-spoken Filipino metamorphoses into a Frank Sinatra who is mindless ‘now’ that the end of his turn to sing ‘is near’ for he always wants to do it ‘his way’.
Propositions to impose strict regulations or to clampdown altogether on the cacophony of discordant informal singing in these places had been swirling on the news of late. The idea to reclaim peace and quiet in the neighborhood had gained steam in consideration of distant or remote-learning set-ups and work-from-home arrangements that had replaced the old-normal face-to-face classes and reporting for work in brick-and-mortar offices of the pre-COVID era.
While oppositions to a total ban on videoke-singing may also carry some legal weight given that these would have implications on the constitutional right to freedom of speech and expression and impact on the proprietary rights of small and medium enterprises (SMEs), several legal provisions can be banked on to support such ban.
When the singing (regardless of the tune) is raised at intolerable decibels and the acoustics amplified to blaring proportions, even the most popular music is turned into noise. And when this happens, neither the property right of the owner of the restaurant nor the free expression clause of the constitution can keep the music- or noise- playing.
Pursuant to Article 431 of the New Civil Code of the Philippines, “The owner of a thing cannot make use thereof in such manner as to injure the rights of a third person”. This provision of law clearly limits the right of a property owner in the use of his property. Furthermore, while it may be true under Article 437 of the same code that embodies the doctrine known as “ad coelum” which enunciates that “a landlord owns everything below and above the land, up to the sky and below the earth to its core (https://definitions.us legal.com); still, such right is restricted by “servitudes and subject to special laws and ordinances”. Rights over property, therefore- just like most rights in our mixed civil and common law system- are not absolute.
In turn, Article 682 still of the New Civil Code circumscribes a land or building owner’s right such that it is “subject to the easement which prohibits the proprietor or possessor from committing nuisance through noise, jarring, offensive odor, smoke, heat, dust, water, glare and other causes”. For as a matter of fact, pursuant to Article 624, “A nuisance is any act, omission, establishment, condition of property, or anything else which: x x x (2) annoys or offends the senses; x x x”.
But it should be emphasized that such prohibition should only be confined to the boisterous videoke-singing in establishments but not as to close the business altogether. In CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, et al. v. HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT CORPORATION, G.R. No. 118127 April 12, 2005, an ordinance indiscriminately declared as illegal all Sauna Parlors, Massage Parlors, Karaoke Bars, Beerhouses, Night Clubs, Day Clubs, Super Clubs, Discotheques, Cabarets, Dance Halls, Motels and Inns. The Supreme Court ruled that such an ordinance is unconstitutional as it is confiscatory of private property. The Court distinguished mere “regulation” from downright “taking by closure” of a business. Thus:
“What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use. A regulation that permanently denies all economically beneficial or productive use of land is, from the owner’s point of view, equivalent to a “taking” unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable. When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.
A regulation which denies all economically beneficial or productive use of land will require compensation under the takings clause. Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations and the character of government action. These inquiries are informed by the purpose of the takings clause which is to prevent the government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.
A restriction on use of property may also constitute a “taking” if not reasonably necessary to the effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct investment-backed expectations of the owner.”
So goes the interplay of laws in a democratic country such as ours. Every strand of activity, -be it economic or in pursuit of happiness or mere pleasure-, is taken into account by the law. And while the law may not be played to the correct tune all the time as human relations are so complex and diverse that it is inconceivable to have a ready answer to all of life’s uncertainties, the courts have been mandated by Article 10 of the New Civil Code that: “In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail”.
Indeed, to all the frustrated bards and nightingales round the country, who fancy sharing their brand of singing to their earmuffed neighbors, they may consider instead holding a concert in the shower where the cascading waters can applaud to the echo of the walls.
(Atty. Eduardo T. Reyes, III is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).
