Coconut Corporation is not a government entity within the purview of section 16, Rule 130 of the Rules of Court;

chan roblesvirtualawlibrary(2) that the payments already made by said Defendant to Plaintiffs herein and received by the latter from the former in the total amount of P714, for copies of the stenographic transcripts in question, are valid, just and legal; chan roblesvirtualawlibraryand (3) that Plaintiffs are under no obligation whatsoever to make a refund of these payments already received by them. This is an appeal from said decision. EN BANC [G.R. No. L-9657. November 29, 1956.] LEOPOLDO T. BACANI and MATEO A. MATOTO, Plaintiffs-Appellees, vs. NATIONAL COCONUT CORPORATION, ET AL., Defendants, NATIONAL COCONUT CORPORATION and BOARD OF LIQUIDATORS, Defendants-Appellants. DECISION BAUTISTA ANGELO, J.: Under section 16, Rule 130 of the Rules of Court, the Government of the Philippines is exempt from paying the legal fees provided for therein, and among these fees are those which stenographers may charge for the transcript of notes taken by them that may be requested by any interested person (section 8). The fees in question are for the transcript of notes taken during the hearing of a case in which the National Coconut Corporation is interested, and the transcript was requested by its assistant corporate counsel for the use of said corporation. On the other hand, section 2 of the Revised Administrative Code defines the scope of the term Government of the Republic of the Philippines as follows:chanroblesvirtuallawlibrary The Government of the Philippine Islands is a term which refers to the corporate governmental entity through which the functions of government are exercised throughout the Philippine Islands, including, save as the contrary appears from the context, the various arms through which political authority is made effective in said Islands, whether pertaining to the central Government or to the provincial or municipal branches or other form of local government. The question now to be determined is whether the National Coconut Corporation may be considered as included in the term Government of the Republic of the Philippines for the purposes of the exemption of the legal fees provided for in Rule 130 of the Rules of Court. As may be noted, the term Government of the Republic of the Philippines refers to a government entity through which the functions of government are exercised, including the various arms through which political authority is made effective in the Philippines, whether pertaining to the central government or to the provincial or municipal branches or other form of local government. This requires a little digression on the nature and functions of our government as instituted in our Constitution. To begin with, we state that the term Government may be defined as that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them (U.S. vs. Dorr, 2 Phil., 332). This institution, when referring t o the national government, has reference to what our Constitution has established composed of three great departments, the legislative, executive, and the judicial, through which the powers and functions of government are exercised. These functions are twofold:chanroblesvirtuallawlibrary constitute and ministrant. The former are those which constitute the very bonds of society and are compulsory in nature; chan

Plaintiffs herein are court stenographers assigned in Branch VI of the Court of First
Instance of Manila. During the pendency of Civil Case No. 2293 of said court, entitled Francisco Sycip vs. National Coconut Corporation, Assistant Corporate Counsel Federico Alikpala, counsel for Defendant, requested said stenographers for copies of the transcript of the stenographic notes taken by them during the hearing. Plaintiffs complied with the request by delivering to Counsel Alikpala the needed transcript containing 714 pages and thereafter submitted to him their bills for the payment of their fees. The National Coconut Corporation paid the amount of P564 to Leopoldo T. Bacani and P150 to Mateo A. Matoto for said transcript at the rate of P1 per page. Upon inspecting the books of this corporation, the Auditor General disallowed the payment of these fees and sought the recovery of the amounts paid. On January 19, 1953, the Auditor General required the Plaintiffs to reimburse said amounts on the strength of a circular of the Department of Justice wherein the opinion was expressed that the National Coconut Corporation, being a government entity, was exempt from the payment of the fees in question. On February 6, 1954, the Auditor General issued an order directing the Cashier of the Department of Justice to deduct from the salary of Leopoldo T. Bacani the amount of P25 every payday and from the salary of Mateo A. Matoto the amount of P10 every payday beginning March 30, 1954. To prevent deduction of these fees from their salaries and secure a judicial ruling that the National Coconut Corporation is not a government entity within the purview of section 16, Rule 130 of the Rules of Court, this action was instituted in the Court of First Instance of Manila.

Defendants set up as a defense that the National Coconut Corporation is a government

entity within the purview of section 2 of the Revised Administrative Code of 1917 and, hence, it is exempt from paying the stenographers fees under Rule 13 0 of the Rules of Court. After trial, the court found for the Plaintiffs declaring (1) that Defendant National

roblesvirtualawlibrarythe latter are those that are undertaken only by way of advancing the general interests of society, and are merely optional. President Wilson enumerates the constituent functions as follows:chanroblesvirtuallawlibrary (1) The keeping of order and providing for the protection of persons and property from violence and robbery. (2) The fixing of the legal relations between man and wife and between parents and children. (3) The regulation of the holding, transmission, and interchange of property, and the determination of its liabilities for debt or for crime. (4) The determination of contract rights between individuals. (5) The definition and punishment of crime. (6) The administration of justice in civil cases. (7) The determination of the political duties, privileges, and relations of citizens. (8) Dealings of the state with foreign powers:chanroblesvirtuallawlibrary the preservation of the state from external danger or encroachment and the advancement of its international interests. (Malcolm, The Government of the Philippine Islands, p. 19.) The most important of the ministrant functions are:chanroblesvirtuallawlibrary public works, public education, public charity, health and safety regulations, and regulations of trade and industry. The principles deter mining whether or not a government shall exercise certain of these optional functions are:chanroblesvirtuallawlibrary (1) that a government should do for the public welfare those things which private capital would not naturally undertake and (2) that a government should do these things which by its very nature it is better equipped to administer for the public welfare than is any private individual or group of individuals. (Malcolm, The Government of the Philippine Islands, pp. 19-20.) From the above we may infer that, strictly speaking, there are functions which our government is required to exercise to promote its objectives as expressed in our Constitution and which are exercised by it as an attribute of sovereignty, and those which it may exercise to promote merely the welfare, progress and prosperity of the people. To this latter class belongs the organization of those corporations owned or controlled by the government to promote certain aspects of the economic life of our people such as the National Coconut Corporation. These are what we call government-owned or controlled corporations which may take on the form of a private enterprise or one organized with powers and formal characteristics of a private corporations under the Corporation Law. The question that now arises is:chanroblesvirtuallawlibrary Does the fact that these corporation perform certain functions of government make them a part of the Government of the Philippines? The answer is simple:chanroblesvirtuallawlibrary they do not acquire that status for the simple reason that they do not come under the classification of municipal or public

corporation. Take for instance the National Coconut Corporation. While it was organized with the purpose of adjusting the coconut industry to a position independent of trade preferences in the United States and of providing Facilities for the better curing of copra products and the proper utilization of coconut by-products, a function which our government has chosen to exercise to promote the coconut industry, however, it was given a corporate power separate and distinct from our government, for it was made subject to the provisions of our Corporation Law in so far as its corporate existence and the powers that it may exercise are concerned (sections 2 and 4, Commonwealth Act No. 518). It may sue and be sued in the same manner as any other private corporations, and in this sense it is an entity different from our government. As this Court has aptly said, The mere fact that the Government happens to be a majority stockholder does not make it a public corporation (National Coal Co. vs. Collector of Internal Revenue, 46 Phil., 586-587). By becoming a stockholder in the National Coal Company, the Government divested itself of its sovereign character so far as respects the transactions of the corporation cralaw . Unlike the Government, the corporation may be sued without its consent, and is subject to taxation. Yet the National Coal Company remains an agency or instrumentality of government. (Government of the Philippine Islands vs. Springer, 50 Phil., 288.) To recapitulate, we may mention that the term Government of the Republic of the Philippines used in section 2 of the Revised Administrative Code refers only to that government entity through which the functions of the government are exercised as an attribute of sovereignty, and in this are included those arms through which political authority is made effective whether they be provincial, municipal or other form of local government. These are what we call municipal corporations. They do not include government entities which are given a corporate personality separate and distinct from the government and which are governed by the Corporation Law. Their powers, duties and liabilities have to be determined in the light of that law and of their corporate charters. They do not therefore come within the exemption clause prescribed in section 16, Rule 130 of our Rules of Court. Public corporations are those formed or organized for the government of a portion of the State. (Section 3, Republic Act No. 1459, Corporation Law). The generally accepted definition of a municipal corporation would only include organized cities and towns, and like organizations, with political and legislative powers for the local, civil government and police regulations of the inhabitants of the particular district included in the boundaries of the corporation. Heller vs. Stremmel, 52 Mo. 309, 312. In its more general sense the phrase municipal corporation may include both towns and counties, and other public corporations created by government for political purposes. In its more common and limited signification, it embraces only incorporated villages, towns and cities. Dunn vs. Court of County Revenues, 85 Ala. 144, 146, 4 So. 661. (McQuillin, Municipal Corporations, 2nd ed., Vol. 1, p. 385.) We may, therefore, define a municipal corporation in its historical and strict sense to be the incorporation, by the authority of the government, of the inhabitants of a particular place or district, and authorizing them in their corporate capacity to exercise subordinate specified

powers of legislation and regulation with respect to their local and internal concerns. This power of local government is the distinctive purpose and the distinguishing feature of a municipal corporation proper. (Dillon, Municipal Corporations, 5th ed., Vol. I, p. 59.) It is true that under section 8, Rule 130, stenographers may only charge as fees P0.30 for each page of transcript of not less than 200 words before the appeal is taken and P0.15 for each page after the filing of the appeal, but in this case the National Coconut Corporation has agreed and in fact has paid P1.00 per page for the services rendered by the Plaintiffs and has not raised any objection to the amount paid until its propriety was disputed by the Auditor General. The payment of the fees in question became therefore contractual and as such is valid even if it goes beyond the limit prescribed in section 8, Rule 130 of the Rules of Court. As regards the question of procedure raised by Appellants, suffice it to say that the same is insubstantial, considering that this case refers not to a money claim disapproved by the Auditor General but to an action of prohibition the purpose of which is to restrain the officials concerned from deducting from Plaintiffs salaries the amount paid to them as stenographers fees. This case does not come under section 1, Rule 45 of the Rules of Court relative to appeals from a decision of the Auditor General. Wherefore, the decision appealed from is affirmed, without pronouncement as to costs. Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.

Administration J. C. Espinas and Associates for respendents Confederation of Unions in Government Corporations Offices, et al. Mariano B. Tuason for respondent Court of Industrial Relations.
MAKALINTAL, J.: These are two separate appeals by certiorari from the decision dated March 25, 1963 (G.R. No. L-21484) and the order dated May 21, 1964 (G.R. No. L-23605) as affirmed by the resolutions en banc, of the Court of Industrial Relations, in Cases Nos. 3450-ULP and 1327-MC, respectively. The parties, except the Confederation of Unions in Government Corporations and Offices (CUGCO), being practically the same and the principal issues involved related, only one decision is now rendered in these two cases. The Agricultural Credit and Cooperative Financing Administration (ACCFA) was a government agency created under Republic Act No. 821, as amended. Its administrative machinery was reorganized and its name changed to Agricultural Credit Administration (ACA) under the Land Reform Code (Republic Act No. 3844). On the other hand, the ACCFA Supervisors' Association (ASA) and the ACCFA Workers' Association (AWA), hereinafter referred to as the Unions, are labor organizations composed of the supervisors and the rank-and-file employees, respectively, in the ACCFA (now ACA).

G.R. No. L-21484

On September 4, 1961 a collective bargaining agreement, which was to be effective for a period of one (1) year from July 1, 1961, was entered into by and between the Unions and the ACCFA. A few months thereafter, the Unions started protesting against alleged violations and non-implementation of said agreement. Finally, on October 25, 1962 the Unions declared a strike, which was ended when the strikers voluntarily returned to work on November 26, 1962. On October 30, 1962 the Unions, together with its mother union, the Confederation of Unions in Government Corporations and Offices (CUGCO), filed a complaint with the Court of Industrial Relations against the ACCFA (Case No. 3450-ULP) for having allegedly committed acts of unfair labor practice, namely: violation of the collective bargaining agreement in order to discourage the members of the Unions in the exercise of their right to self-organization, discrimination against said members in the matter of promotions, and refusal to bargain. The ACCFA denied the charges and interposed as affirmative and special defenses lack of jurisdiction of the CIR over the case, illegality of the bargaining contract, expiration of said contract and lack of approval by the office of the President of the fringe benefits provided for therein. Brushing aside the foregoing defenses, the CIR in its decision dated March 25, 1963 ordered the ACCFA:

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-21484 November 29, 1969

THE AGRICULTURAL CREDIT and COOPERATIVE FINANCING ADMINISTRATION (ACCFA), petitioner, vs. ACCFA SUPERVISORS' ASSOCIATION, ACCFA WORKERS' ASSOCIATION, and THE COURT OF INDUSTRIAL RELATIONS, respondents.

Deogracias E. Lerma and Esmeraldo U. Guloy for petitioner Agricultural Credit and Cooperative Financing Administration. Office of the Agrarian Counsel, Department of Justice for petitioner Agricultural Credit

1. To cease and desist from committing further acts tending to discourage the members of complainant unions in the exercise of their right to self-organization; 2. To comply with and implement the provision of the collective bargaining contract executed on September 4, 1961, including the payment of P30.00 a month living allowance; 3. To bargain in good faith and expeditiously with the herein complainants. The ACCFA moved to reconsider but was turned down in a resolution dated April 25, 1963 of the CIR en banc. Thereupon it brought this appeal by certiorari. The ACCFA raises the following issues in its petition, to wit: 1. Whether or not the respondent court has jurisdiction over this case, which in turn depends on whether or not ACCFA exercised governmental or proprietary functions. 2. Whether or not the collective bargaining agreement between the petitioner and the respondent union is valid; if valid, whether or not it has already lapsed; and if not, whether or not its (sic) fringe benefits are already enforceable. 3. Whether or not there is a legal and/or factual basis for the finding of the respondent court that the petitioner had committed acts of unfair labor practice. 4. Whether or not it is within the competence of the court to enforce the collective bargaining agreement between the petitioner and the respondent unions, the same having already expired.

compliance therewith, the ACA, while admitting most of the allegations in the petition, denied that the Unions represented the majority of the supervisors and rank-and-file workers, respectively, in the ACA. It further alleged that the petition was premature, that the ACA was not the proper party to be notified and to answer the petition, and that the employees and supervisors could not lawfully become members of the Unions, nor be represented by them. However, in a joint manifestation of the Unions dated May 7, 1964, with the conformity of the ACA Administrator and of the Agrarian Counsel in his capacity as such and as counsel for the National Land Reform Council, it was agreed "that the union petitioners in this case represent the majority of the employees in their respective bargaining units" and that only the legal issues raised would be submitted for the resolution of the trial Court. Finding the remaining grounds for ACA's opposition to the petition to be without merit, the trial Court in its order dated May 21, 1964 certified "the ACCFA Workers' Association and the ACCFA Supervisors' Association as the sole and exclusive bargaining representatives of the rank-and-file employees and supervisors, respectively, of the Agricultural Credit Administration." Said order was affirmed by the CIR en banc in its resolution dated August 24, 1964. On October 2, 1964 the ACA filed in this Court a petition for certiorari with urgent motion to stay the CIR order of May 21, 1964. In a resolution dated October 6, 1964, this Court dismissed the petition for "lack of adequate allegations," but the dismissal was later reconsidered when the ACA complied with the formal requirement stated in said resolution. As prayed for, this Court ordered the CIR to stay the execution of its order of May 21, 1964. In this appeal, the ACA in effect challenges the jurisdiction of the CIR to entertain the petition of the Unions for certification election on the ground that it (ACA) is engaged in governmental functions. The Unions join the issue on this single point, contending that the ACA forms proprietary functions. Under Section 3 of the Agricultural Land Reform Code the ACA was established, among other governmental agencies,1 to extend credit and similar assistance to agriculture, in pursuance of the policy enunciated in Section 2 as follows: SEC. 2. Declaration of Policy. It is the policy of the State: (1) To establish owner-cultivatorships and the economic family-size farm as the basis of Philippine agriculture and, as a consequence, divert landlord capital in agriculture to industrial development; (2) To achieve a dignified existence for the small farmers free from pernicious institutional restraints and practices;

G.R. No. L-23605

During the pendency of the above mentioned case (G.R. No. L-21484), specifically on August 8, 1963, the President of the Philippines signed into law the Agricultural Land Reform Code (Republic Act No. 3844), which among other things required the reorganization of the administrative machinery of the Agricultural Credit and Cooperative Financing Administration (ACCFA) and changed its name to Agricultural Credit Administration (ACA). On March 17, 1964 the ACCFA Supervisors' Association and the ACCFA Workers' Association filed a petition for certification election with the Court of Industrial Relations (Case No. 1327-MC) praying that they be certified as the exclusive bargaining agents for the supervisors and rank-and-file employees, respectively, in the ACA. The trial Court in its order dated March 30, 1964 directed the Manager or Officer-in-Charge of the ACA to allow the posting of said order "for the information of all employees and workers thereof," and to answer the petition. In

(3) To create a truly viable social and economic structure in agriculture conducive to greater productivity and higher farm incomes; (4) To apply all labor laws equally and without discrimination to both industrial and agricultural wage earners; (5) To provide a more vigorous and systematic land resettlement program and public land distribution; and (6) To make the small farmers more independent, self-reliant and responsible citizens, and a source of genuine strength in our democratic society. The implementation of the policy thus enunciated, insofar as the role of the ACA therein is concerned, is spelled out in Sections 110 to 118, inclusive, of the Land Reform Code. Section 110 provides that "the administrative machinery of the ACCFA shall be reorganized to enable it to align its activities with the requirements and objective of this Code and shall be known as the Agricultural Credit Administration." Under Section 112 the sum of P150,000,000 was appropriated out of national funds to finance the additional credit functions of the ACA as a result of the land reform program laid down in the Code. Section 103 grants the ACA the privilege of rediscounting with the Central Bank, the Development Bank of the Philippines and the Philippine National Bank. Section 105 directs the loaning activities of the ACA "to stimulate the development of farmers' cooperatives," including those "relating to the production and marketing of agricultural products and those formed to manage and/or own, on a cooperative basis, services and facilities, such as irrigation and transport systems, established to support production and/or marketing of agricultural products." Section 106 deals with the extension by ACA of credit to small farmers in order to stimulate agricultural production. Sections 107 to 112 lay down certain guidelines to be followed in connection with the granting of loans, such as security, interest and supervision of credit. Sections 113 to 118, inclusive, invest the ACA with certain rights and powers not accorded to non-governmental entities, thus: SEC. 113. Auditing of Operations. For the effective supervision of farmers' cooperatives, the head of the Agricultural Credit Administration shall have the power to audit their operations, records and books of account and to issue subpoena and subpoena duces tecum to compel the attendance of witnesses and the production of books, documents and records in the conduct of such audit or of any inquiry into their affairs. Any person who, without lawful cause, fails to obey such subpoena or subpoena duces tecum shall, upon application of the head of Agricultural Credit Administration with the proper court, be liable to punishment for contempt in the manner provided by law and if he is an officer of the Association, to suspension or removal from office.

SEC. 114. Prosecution of officials. The Agricultural Credit Administration, through the appropriate provincial or city fiscal, shall have the power to file and prosecute any and all actions which it may have against any and all officials or employees of farmers' cooperatives arising from misfeasance or malfeasance in office. SEC. 115. Free Notarial Service. Any justice of the peace, in his capacity as notary ex-officio, shall render service free of charge to any person applying for a loan under this Code either in administering the oath or in the acknowledgment of instruments relating to such loan. SEC. 116. Free Registration of Deeds. Any register of deeds shall accept for registration, free of charge any instrument relative to a loan made under this Code. SEC. 117. Writing-off Unsecured and Outstanding Loans. Subject to the approval of the President upon recommendation of the Auditor General, the Agricultural Credit Administration may write-off from its books, unsecured and outstanding loans and accounts receivable which may become uncollectible by reason of the death or disappearance of the debtor, should there be no visible means of collecting the same in the foreseeable future, or where the debtor has been verified to have no income or property whatsoever with which to effect payment. In all cases, the writing-off shall be after five years from the date the debtor defaults. SEC. 118. Exemption from Duties, Taxes and Levies. The Agricultural Credit Administration is hereby exempted from the payment of all duties, taxes, levies, and fees, including docket and sheriff's fees, of whatever nature or kind, in the performance of its functions and in the exercise of its powers hereunder. The power to audit the operations of farmers' cooperatives and otherwise inquire into their affairs, as given by Section 113, is in the nature of the visitorial power of the sovereign, which only a government agency specially delegated to do so by the Congress may legally exercise. On March 19, 1964 Executive Order No. 75 was promulgated. It is entitled: "Rendering in Full Force and Effect the Plan of Reorganization Proposed by the Special Committee on Reorganization of Agencies for Land Reform for the Administrative Machinery of the Agricultural Land Reform Code," and contains the following pertinent provisions: Section 3. The Land Reform Project Administration2 shall be considered a single organization and the personnel complement of the member agencies including the legal officers of the Office of the Agrarian Counsel which shall provide legal

services to the LRPA shall be regarded as one personnel pool from which the requirements of the operations shall be drawn and subject only to the civil service laws, rules and regulations, persons from one agency may be freely assigned to positions in another agency within the LRPA when the interest of the service so demands. Section 4. The Land Reform Project Administration shall be considered as one organization with respect to the standardization of job descriptions position classification and wage and salary structures to the end that positions involving the same or equivalent qualifications and equal responsibilities and effort shall have the same remuneration. Section 5. The Civil Service laws, rules and regulations with respect to promotions, particularly in the consideration of person next in rank, shall be made applicable to the Land Reform Project Administration as a single agency so that qualified individuals in one member agency must be considered in considering promotion to higher positions in another member agency. The implementation of the land reform program of the government according to Republic Act No. 3844 is most certainly a governmental, not a proprietary, function; and for that purpose Executive Order No. 75 has placed the ACA under the Land Reform Project Administration together with the other member agencies, the personnel complement of all of which are placed in one single pool and made available for assignment from one agency to another, subject only to Civil Service laws, rules and regulations, position classification and wage structures. The appointing authority in respect of the officials and employees of the ACA is the President of the Philippines, as stated in a 1st indorsement by his office to the Chairman of the National Reform Council dated May 22, 1964, as follows: Appointments of officials and employees of the National Land Reform Council and its agencies may be made only by the President, pursuant to the provisions of Section 79(D) of the Revised Administrative Code. In accordance with the policy and practice, such appointments should be prepared for the signature of the Executive Secretary, "By Authority ofthe President".3 When the Agricultural Reform Code was being considered by the Congress, the nature of the ACA was the subject of the following exposition on the Senate floor: Senator Tolentino: . . . . "The ACA is not going to be a profit making institution. It is supposed to be a public service of the government to the lessees and farmerowners of the lands that may be bought after expropriation from owners. It is the government here that is the lender. The government should not exact a higher

interest than what we are telling a private landowner now in his relation to his tenants if we give to their farmers a higher rate of interest . . . ." (pp. 17 & 18, Senate Journal No. 16, July 3, 1963) The reason is obvious, to pinpoint responsibility for many losses in the government, in order to avoid irresponsible lending of government money to pinpoint responsibility for many losses . . . . Senator Manglapus: ". . . But assuming that hypothesis, that is the reason why we are appropriating P150,000,000.00 for the Agricultural Credit Administration which will go to intensified credit operations on the barrio level . . ." (p. 3, Senate Journal No. 7). That it is the reason why we are providing for the expansion of the ACCFA and the weeding out of the cooperative activity of the ACCFA and turning this over to the Agricultural Productivity Commission, so that the Agricultural Credit Administration will concentrate entirely on the facilitation of credit on the barrio level with the massive support of 150 million provided by the government. . . . (pp. 4 & 5 of Senate Journal No. 7, July 3, 1963) . . . But by releasing them from this situation, we feel that we are putting them in a much better condition than that in which they are found by providing them with a business-like way of obtaining credit, not depending on a paternalistic system but one which is business-like that is to say, a government office, which on the barrio level will provide them that credit directly . . . . (p. 40, Senate Journal No. 7, July 3, 1963) (emphasis supplied). The considerations set forth above militate quite strongly against the recognition of collective bargaining powers in the respondent Unions within the context of Republic Act No. 875, and hence against the grant of their basic petition for certification election as proper bargaining units. The ACA is a government office or agency engaged in governmental, not proprietary functions. These functions may not be strictly what President Wilson described as "constituent" (as distinguished from "ministrant"), 4 such as those relating to the maintenance of peace and the prevention of crime, those regulating property and property rights, those relating to the administration of justice and the determination of political duties of citizens, and those relating to national defense and foreign relations. Under this traditional classification, such constituent functions are exercised by the State as attributes of sovereignty, and not merely to promote the welfare, progress and prosperity of the people these letter functions being ministrant he exercise of which is optional on the part of the government. The growing complexities of modern society, however, have rendered this traditional classification of the functions of government quite unrealistic, not to say obsolete. The

areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally, and only "because it was better equipped to administer for the public welfare than is any private individual or group of individuals," 5 continue to lose their well-defined boundaries and to be absorbed within activities that the government must undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost everywhere else the tendency is undoubtedly towards a greater socialization of economic forces. Here of course this development was envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice. It was in furtherance of such policy that the Land Reform Code was enacted and the various agencies, the ACA among them, established to carry out its purposes. There can be no dispute as to the fact that the land reform program contemplated in the said Code is beyond the capabilities of any private enterprise to translate into reality. It is a purely governmental function, no less than, say, the establishment and maintenance of public schools and public hospitals. And when, aside from the governmental objectives of the ACA, geared as they are to the implementation of the land reform program of the State, the law itself declares that the ACA is a government office, with the formulation of policies, plans and programs vested no longer in a Board of Governors, as in the case of the ACCFA, but in the National Land Reform Council, itself a government instrumentality; and that its personnel are subject to Civil Service laws and to rules of standardization with respect to positions and salaries, any vestige of doubt as to the governmental character of its functions disappears. In view of the foregoing premises, we hold that the respondent Unions are not entitled to the certification election sought in the Court below. Such certification is admittedly for purposes of bargaining in behalf of the employees with respect to terms and conditions of employment, including the right to strike as a coercive economic weapon, as in fact the said unions did strike in 1962 against the ACCFA (G.R. No. L-21824).6 This is contrary to Section 11 of Republic Act No. 875, which provides: SEC. 11. Prohibition Against Strike in the Government The terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof, are governed by law and it is declared to be the policy of this Act that employees therein shall not strike for the purposes of securing changes or modification in their terms and conditions of employment. Such employees may belong to any labor organization which does not impose the obligation to strike or to join in strike: Provided, However, that this section shall apply only to employees employed in governmental functions of the Government including but not limited to governmental corporations.7 With the reorganization of the ACCFA and its conversion into the ACA under the Land Reform Code and in view of our ruling as to the governmental character of the functions of the ACA, the decision of the respondent Court dated March 25, 1963, and the

resolution en banc affirming it, in the unfair labor practice case filed by the ACCFA, which decision is the subject of the present review in G. R. No. L-21484, has become moot and academic, particularly insofar as the order to bargain collectively with the respondent Unions is concerned. What remains to be resolved is the question of fringe benefits provided for in the collective bargaining contract of September 4, 1961. The position of the ACCFA in this regard is that the said fringe benefits have not become enforceable because the condition that they should first be approved by the Office of the President has not been complied with. The Unions, on the other hand, contend that no such condition existed in the bargaining contract, and the respondent Court upheld this contention in its decision. It is to be listed that under Section 3, Article XIV, of the agreement, the same "shall not become effective unless and until the same is duly ratified by the Board of Governors of the Administration." Such approval was given even before the formal execution of the agreement, by virtue of "Resolution No. 67, Regular Meeting No. 7, FY 1960-61, held on August 17, 1961," but with the proviso that "the fringe benefits contained therein shall take effect only if approved by the office of the President." The condition is, therefore, deemed to be incorporated into the agreement by reference. On October 23, 1962 the Office of the President, in a letter signed by the Executive Secretary, expressed its approval of the bargaining contract "provided the salaries and benefits therein fixed are not in conflict with applicable laws and regulations, are believed to be reasonable considering the exigencies of the service and the welfare of the employees, and are well within the financial ability of the particular corporation to bear." On July 1, 1963 the ACCFA management and the Unions entered into an agreement for the implementation of the decision of the respondent Court concerning the fringe benefits, thus: In the meantime, only Cost of Living Adjustment, Longevity Pay, and Night Differential Benefits accruing from July 1, 1961 to June 30, 1963 shall be paid to all employees entitled thereto, in the following manner: A) The sum of P180,000 shall be set aside for the payment of: 1) Night differential benefits for Security Guards. 2) Cost of Living Adjustment and Longevity Pay. 3) The unpaid balance due employees on Item A (1) and (2) this paragraph shall be paid in monthly installments as finances permit but not beyond December 20, 1963.

3. All benefits accruing after July 1, 1963, shall be allowed to accumulate but payable only after all benefits accruing up to June 30, 1963, as per CIR decision hereinabove referred to shall have been settled in full; provided, however, that commencing July 1, 1963 and for a period of only two (2) months thereafter (during which period the ACCFA and the Unions shall negotiate a new Collective Bargaining Agreement) the provisions of the September 4, 1961 Collective Bargaining Agreement shall be temporarily suspended, except as to Cost of Living Adjustment and "political" or non-economic privileges and benefits thereunder. On July 24, 1963 the ACCFA Board of Governors ratified the agreement thus entered into, pursuant to the provision thereof requiring such ratification, but with the express qualification that the same was "without prejudice to the pending appeal in the Supreme Court . . . in Case No. 3450-ULP." The payment of the fringe benefits agreed upon, to our mind, shows that the same were within the financial capability of the ACCFA then, and hence justifies the conclusion that this particular condition imposed by the Office of the President in its approval of the bargaining contract was satisfied. We hold, therefore, that insofar as the fringe benefits already paid are concerned, there is no reason to set aside the decision of the respondent Court, but that since the respondent Unions have no right to the certification election sought by them nor, consequently, to bargain collectively with the petitioner, no further fringe benefits may be demanded on the basis of any collective bargaining agreement. The decisions and orders appealed from are set aside and/or modified in accordance with the foregoing pronouncements. No costs.

gratification. For me at least, there is again full adherence to the basic philosophy of the Constitution as to the extensive and vast power lodged in our government to cope with the social and economic problems that even now sorely beset us. There is therefore full concurrence on my part to the opinion of the Court, distinguished by its high quality of juristic craftsmanship. I feel however that the matter is of such vital importance that a separate concurring opinion is not inappropriate. It will also serve to give expression to my view, which is that of the Court likewise, that our decision today does not pass upon the rights of labor employed in instrumentalities of the state discharging governmental functions. 1. In the above Bacani decision, governmental functions are classified into constituent and ministrant. "The former are those which constitute the very bonds of society and are compulsory in nature; the latter are those that are undertaken only by way of advancing the general interests of society, and are merely optional. President Wilson enumerates the constituent functions as follows: '(1) The keeping of order and providing for the protection of persons and property from violence and robbery. (2) The fixing of the legal relations between man and wife and between parents and children. (3) The regulation of the holding, transmission, and interchange of property, and the determination of its liabilities for debt or for crime. (4) The determination of contract rights between individuals. (5) The definition and punishment of crime. (6) The administration of justice in civil cases. (7) The determination of the political duties, privileges, and relations of citizens. (8) Dealings of the state with foreign powers: the preservation of the state from external danger or encroachment and the advancement of its international interests.' " 3 The ministrant functions were then enumerated, followed by a statement of the basis that would justify engaging in such activities. Thus: "The most important of the ministrant functions are: public works, public education, public charity, health and safety regulations, and regulations of trade and industry. The principles determining whether or not a government shall exercise certain of these optional functions are: (1) that a government should do for the public welfare those things which private capital would not naturally undertake and (2) that a government should do these things which by its very nature it is better equipped to administer for the public welfare than is any private individual or group of individuals." 4 Reference is made in the Bacani decision to the first of the many publications of Justice Malcolm on the Philippine government, which appeared in 1916, 5 adopting the formulation of the then Professor, later President, Woodrow Wilson of the United States, in a textbook on political science the first edition of which was published in 1898. The Wilson classification reflected the primacy of the dominant laissez-faire concept carried into the sphere of government. A most spirited defense of such a view was given by former President Hadley of Yale in a series of three lectures delivered at Oxford University in 1914. According to President Hadley: "I shall begin with a proposition which may sound somewhat startling, but

Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez, Castro, Teehankee and Barredo, JJ.,
concur.

Zaldivar, J., concurs in the result.

Separate Opinions FERNANDO, J., concurring: The decision reached by this Court so ably given expression in the opinion of Justice Makalintal, characterized with vigor, clarity and precision, represents what for me is a clear tendency not to be necessarily bound by our previous pronouncements on what activities partake of a nature that is governmental. 1 Of even greater significance, there is a definite rejection of the "constituent-ministrant" criterion of governmental functions, followed in Bacani v. National Coconut Corporation. 2 That indeed is cause for

which I believe to be literally true. The whole American political and social system is based on industrial property right, far more completely than has ever been the case in any European country. In every nation of Europe there has been a certain amount of traditional opposition between the government and the industrial classes. In the United States no such tradition exists. In the public law of European communities industrial freeholding is a comparatively recent development. In the United States, on the contrary, industrial freeholding is the foundation on which the whole social order has been established and built up."6 The view is widely accepted that such a fundamental postulate did influence American court decisions on constitutional law. As was explicitly stated by Justice Cardozo, speaking of that era: "Laissez-faire was not only a counsel of caution which statesmen would do well to heed. It was a categorical imperative which statesmen as well as judges, must obey."7 For a long time, legislation tending to reduce economic inequality foundered on the rock that was the due process clause, enshrining as it did the liberty of contract. To cite only one instance, the limitation of employment in bakeries to sixty hours a week and ten hours a day under a New York statute was stricken down for being tainted with a due process objection in Lochner v. New York. 8 It provoked one of the most vigorous dissents of Justice Holmes, who was opposed to the view that the United States Constitution did embody laissez-faire. Thus: "General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word 'liberty,' in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss." It was not until 1908, in Muller v. Oregon,9 that the American Supreme Court held valid a ten-hour maximum for women workers in laundries and not until 1917 in Bunting v. Oregon10 that such a regulatory ten-hour law applied to men and women passed the constitutional test. Similarly, state legislation fixing minimum wages was deemed offensive to the due process clause in a 1923 decision in Adkins v. Children's Hospital.11 Only in 1937, in the leading case of West Coast Hotel v. Parrish,12 was the Adkins case overruled and a minimum wage law New York statute upheld. The same unsympathetic attitude arising from the laissez-faire concept was manifest in decisions during such period, there being the finely-spun distinctions in the Wolff Packing Co. v. Court of Industrial Relations13 decision, as to when certain businesses could be classified as affected with public interest

to justify state regulation as to prices. After eleven years, in 1934, in Nebbia v. New York,14 the air of unreality was swept away by this explicit pronouncement from the United States Supreme Court: "The phrase 'affected with a public interest' can, in the nature of things, mean no more than that an industry, for adequate reason, is subject to control for the public good." It is thus apparent that until the administration of President Roosevelt, the laissez-faire principle resulted in the contraction of the sphere where governmental entry was permissible. The object was to protect property even if thereby the needs of the general public would be left unsatisfied. This was emphatically put forth in a work of former Attorney General, later Justice, Jackson, citing an opinion of Judge Van Orsdel. Thus: "It should be remembered that of the three fundamental principles which underlie government, and for which government exists, the protection of life, liberty, and property, the chief of these is property . . . ."15 The above excerpt from Judge Van Orsdel forms part of his opinion in Children's Hospital v. Adkins, when decided by the Circuit Court of Appeals.16 Nonetheless, the social and economic forces at work in the United States to which the new deal administration of President Roosevelt was most responsive did occasion, as of 1937, greater receptivity by the American Supreme Court to a philosophy less rigid in its obeisance to property rights. Earlier legislation deemed offensive to the laissez-faire concept had met a dismal fate. Their nullity during his first term could, more often than not, be expected.17 As a matter of fact, even earlier, in 1935, Professor Coker of Yale, speaking as a historian, could already discern a contrary drift. Even then he could assert that the range of governmental activity in the United States had indeed expanded. According to him: "Thus both liberals and conservatives approve wide and varied governmental intervention; the latter condemning it, it is true, when the former propose it, but endorsing it, after it has become a fixed part of the status quo, as so beneficial in its effects that no more of it is needed. Our history for the last half-century shows that each important governmental intervention we have adopted has been called socialistic or communistic by contemporary conservatives, and has later been approved by equally conservative men who now accept it both for its proved benefits and for the worthy traditions it has come to represent. Both liberal and conservative supporters of our largescale business under private ownership advocate or concede the amounts and kinds of governmental limitation and aid which they regard as necessary to make the system work efficiently and humanely. Sooner or later, they are willing to have government intervene for the purpose of preventing the system from being too oppressive to the masses of the people, protecting it from its self-destructive errors, and coming to its help in other ways when it appears not to be able to take care of itself."18 At any rate, by 1943, the United States was reconciled to laissez-faire having lost its dominance. In the language of Justice Jackson in the leading case of West Virginia State

Board of Education v. Barnette:19 "We must transplant these rights to a soil in which the
laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls." 2. The influence exerted by American constitutional doctrines unavoidable when the Philippines was still under American rule notwithstanding, an influence that has not altogether vanished even after independence, the laissez-faire principle never found full acceptance in this jurisdiction, even during the period of its full flowering in the United States. Moreover, to erase any doubts, the Constitutional Convention saw to it that our fundamental law embodies a policy of the responsibility thrust on government to cope with social and economic problems and an earnest and sincere commitment to the promotion of the general welfare through state action. It would thus follow that the force of any legal objection to regulatory measures adversely affecting property rights or to statutes organizing public corporations that may engage in competition with private enterprise has been blunted. Unless there be a clear showing of any invasion of rights guaranteed by the Constitution, their validity is a foregone conclusion. No fear need be entertained that thereby spheres hitherto deemed outside government domain have been enchroached upon. With our explicit disavowal of the "constituent-ministrant" test, the ghost of the laissez-faire concept no longer stalks the juridical stage. As early as 1919, in the leading case of Rubi V. Provincial Board of Mindoro,20 Justice Malcolm already had occasion to affirm: "The doctrines of laissez-faire and of unrestricted freedom of the individual, as axioms of economic and political theory, are of the past. The modern period has shown a widespread belief in the amplest possible demonstration of governmental activity. The Courts unfortunately have sometimes seemed to trail after the other two branches of the Government in this progressive march." It was to be expected then that when he spoke for the Court in Government of the Philippine Islands v. Springer,21 a 1927 decision, he found nothing objectionable in the government itself organizing and investing public funds in such corporations as the National Coal Co., the Phil. National Bank, the National Petroleum Co., the National Development Co., the National Cement Co. and the National Iron Co. There was not even a hint that thereby the laissez-faire concept was not honored at all. It is true that Justice Malcolm concurred with the majority in People v. Pomar,22 a 1924 opinion, which held invalid under the due process clause a provision providing for maternity leave with pay thirty days before and thirty days after confinement. It could be that he had no other choice as the Philippines was then under the United States, and only recently the year before, the above-cited case of Adkins v. Children's Hospital,23 in line with the laissezfaire principle, did hold that a statute providing for minimum wages was constitutionally infirm on the same ground.

Our constitution which took effect in 1935, upon the inauguration of the Commonwealth of the Philippines, erased whatever doubts there might be on that score. Its philosophy is antithetical to the laissez-faire concept. Delegate, later President, Manuel Roxas, one of the leading members of the Constitutional Convention, in answer precisely to an objection of Delegate Jose Reyes of Sorsogon, who noted the "vast extensions in the sphere of governmental functions" and the "almost unlimited power to interfere in the affairs of industry and agriculture as well as to compete with existing business" as "reflections of the fascination exerted by [the then] current tendencies" in other jurisdictions,24 spoke thus: "My answer is that this constitution has a definite and well defined philosophy, not only political but social and economic. A constitution that in 1776 or in 1789 was sufficient in the United States, considering the problems they had at that time, may not now be sufficient with the growing and ever-widening complexities of social and economic problems and relations. If the United States of America were to call a constitutional convention today to draft a constitution for the United States, does any one doubt that in the provisions of that constitution there will be found definite declarations of policy as to economic tendencies; that there will be matters which are necessary in accordance with the experience of the American people during these years when vast organizations of capital and trade have succeeded to a certain degree to control the life and destiny of the American people? If in this constitution the gentleman will find declarations of economic policy, they are there because they are necessary to safeguard the interests and welfare of the Filipino people because we believe that the days have come when in self-defense, a nation may provide in its constitution those safeguards, the patrimony, the freedom to grow, the freedom to develop national aspirations and national interests, not to be hampered by the artificial boundaries which a constitutional provision automatically imposes."25 Delegate Roxas continued further: "The government is the creature of the people and the government exercises its powers and functions in accordance with the will and purposes of the people. That is the first principle, the most important one underlying this document. Second, the government established in this document is, in its form, in our opinion, the most adapted to prevailing conditions, circumstances and the political outlook of the Filipino people. Rizal said, 'Every people has the kind of government that they deserve.' That is just another form of expressing the principle in politics enunciated by the French philosophers when they said: 'Every people has the right to establish the form of government which they believe is most conducive to their welfare and their liberty.' Why have we preferred the government that is established in this draft? Because it is the government with which we are familiar. It is the form of government fundamentally such as it exists today; because it is the only kind of government that our people understand; it is the kind of government we have found to be in consonance with our experience, with the necessary modification, capable of permitting a fair play of social forces and allowing the people to conduct the affairs of that government." 26 One of the most prominent delegates, a leading intellectual, former President Rafael Palma of the University of the Philippines, stressed as a fundamental principle in the

draft of the Constitution the limitation on the right to property. He pointed out that the then prevailing view allowed the accumulation of wealth in one family down to the last remote descendant, resulting in a grave disequilibrium and bringing in its wake extreme misery side by side with conspicuous luxury. He did invite attention to the few millionaires at one extreme with the vast masses of Filipinos deprived of the necessities of life at the other. He asked the Convention whether the Filipino people could long remain indifferent to such a deplorable situation. For him to speak of a democracy under such circumstances would be nothing but an illusion. He would thus emphasize the urgent need to remedy the grave social injustice that had produced such widespread impoverishment, thus recognizing the vital role of government in this sphere. 27 Another delegate, Tomas Confesor of Iloilo, was quite emphatic in his assertion for the need of a social justice provision which is a departure from the laissez-faire principle. Thus: "Take the case of the tenancy system in the Philippines. You have a tenant. There are hundreds of thousands of tenants working day in and day out, cultivating the fields of their landlords. He puts all his time, all his energy, the labor and the assistance of his wife and children, in cultivating a piece of ground for his landlord but when the time comes for the partition of the products of his toil what happens? If he produces 25 cavanes of rice, he gets only perhaps five and the twenty goes to the landlord. Now can he go to court? Has he a chance to go to court in order to secure his just share of the products of his toil? No. Under our present regime of law, under our present regime of justice, you do not give that to the poor tenant. Gentlemen, you go to the Cagayan Valley and see the condition under which those poor farmers are being exploited day in and day out. Can they go to court under our present regime of justice, of liberty, or democracy? The other day, workmen were shot by the police just because they wanted to increase or they desired that their wages be increased from thirty centavos a day to forty or fifty centavos. Is it necessary to spill human blood just to secure an increase of ten centavos in the daily wages of an ordinary laborer? And yet under our present regime of social justice, liberty and democracy, these things are happening; these things, I say, are happening. Are those people getting any justice? No. They cannot get justice now from our courts. For this reason, I say it is necessary that we insert 'social justice' here and that social justice must be established by law. Proper legal provisions, proper legal facilities must be provided in order that there be a regime not of justice alone, because we have that now and we are seeing the oppression arising from such a regime. Consequently, we must emphasize the term 'social justice'."28 Delegate Ventenilla of Pangasinan reflected the attitude of the Convention as to why laissez-faire was no longer acceptable. After speaking of times having changed, he proceeded: "Since then new problems have arisen. The spiritual mission of government has descended to the level of the material. Then its function was primarily to soothe the aching spirit. Now, it appears, it must also appease hunger. Now that we may read history backwards, we know for instance, that the old theory of 'laissez-faire' has degenerated into 'big business affairs' which are gradually devouring the rights of the people the same rights intended to be guarded and protected by the system of

constitutional guaranties. Oh, if the Fathers were now alive to see the changes that the centuries have wrought in our life! They might contemplate the sad spectacle of organized exploitation greedily devouring the previous rights of the individual. They might also behold the gradual disintegration of society, the fast disappearance of the bourgeois the middle class, the backbone of the nation and the consequent drifting of the classes toward the opposite extremes the very rich and the very poor."29 Shortly after the establishment of the Commonwealth, the then Justice Jose P. Laurel, himself one of the foremost delegates of the Constitutional Convention, in a concurring opinion, later quoted with approval in the leading case of Antamok Goldfields Mining Co. v. Court of Industrial Relations,30 decided in 1940, explained clearly the need for the repudiation of the laissez-faire doctrine. Thus: "It should be observed at the outset that our Constitution was adopted in the midst of surging unrest and dissatisfaction resulting from economic and social distress which was threatening the stability of governments the world over. Alive to the social and economic forces at work, the framers of our Constitution boldly met the problems and difficulties which faced them and endeavored to crystallize, with more or less fidelity, the political, social and economic propositions of their age, and this they did, with the consciousness that the political and philosophical aphorism of their generation will, in the language of a great jurist, 'be doubted by the next and perhaps entirely discarded by the third.' . . . Embodying the spirit of the present epoch, general provisions were inserted in the Constitution which are intended to bring about the needed social and economic equilibrium between component elements of society through the application of what may be termed as the justitia communis advocated by Grotius and Leibnits many years ago to be secured through the counterbalancing of economic and social forces and opportunities which should be regulated, if not controlled, by the State or placed, as it were, in custodia societatis. 'The promotion of social justice to insure the well-being and economic security of all the people' was thus inserted as vital principle in our Constitution. ... ."31 In the course of such concurring opinion and after noting the changes that have taken place stressing that the policy of laissez-faire had indeed given way to the assumption by the government of the right to intervene although qualified by the phrase "to some extent", he made clear that the doctrine in People v. Pomar no longer retain, "its virtuality as a living principle."32 3. It must be made clear that the objection to the "constituent-ministrant" classification of governmental functions is not to its formulation as such. From the standpoint of law as logic, it is not without merit. It has neatness and symmetry. There are hardly any loose ends. It has the virtue of clarity. It may be said in its favor likewise that it reflects alltoo-faithfully the laissez-faire notion that government cannot extend its operation outside the maintenance of peace and order, protection against external security, and the administration of justice, with private rights, especially so in the case of property, being safeguarded and a hint that the general welfare is not to be entirely ignored. It must not be lost sight of though that logic and jural symmetry while undoubtedly desirable are not the prime consideration. This is especially so in the field of public law.

What was said by Holmes, almost nine decades ago, carry greater conviction now. "The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."33 Then too, there was the warning of Geny cited by Cardozo that undue stress or logic may result in confining the entire system of positive law, "within a limited number of logical categories, predetermined in essence, immovable in basis, governed by inflexible dogmas," thus rendering it incapable of responding to the ever varied and changing exigencies of life.34, It is cause enough for concern if the objection to the Bacani decision were to be premised on the score alone that perhaps there was fidelity to the requirements of logic and jural symmetry carried to excess. What appears to me much more deplorable is that it did fail to recognize that there was a repudiation of the laissez-faire concept in the Constitution. As was set forth in the preceding pages, the Constitution is distinguished precisely by a contrary philosophy. The regime of liberty if provided for, with the realization that under the then prevalent social and economic conditions, it may be attained only through a government with its sphere of activity ranging far and wide, not excluding matters hitherto left to the operation of free enterprise. As rightfully stressed in our decision today in line with what was earlier expressed by Justice Laurel, the government that we have established has as a fundamental principle the promotion of social justice.35 The same jurist gave it a comprehensive and enduring definition as the "promotion of the welfare of all the people, the adoption by the government of measures calculated to insure economic stability of all the component elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments in the time honored principle of salus populi estsuprema lex."36 There is thus from the same distinguished pen, this time writing for the Court, a reiteration of the view of the laissez-faire doctrine being repugnant to the fundamental law. It must be added though that the reference to extra-constitutional measures being allowable must be understood in the sense that there is no infringement of specific constitutional guarantees. Otherwise, the judiciary will be hard put to sustain their validity if challenged in an appropriate legal proceeding. The regime of liberty contemplated in the Constitution with social justice as a fundamental principle to reinforce the pledge in the preamble of promoting the general welfare reflects traditional concepts of a democratic policy infused with an awareness of the vital and pressing need for the government to assume a much more active and vigorous role in the conduct of public affairs. The framers of our fundamental law were as one in their strongly-held belief that thereby the grave and serious infirmity then

confronting our body-politic, on the whole still with us now, of great inequality of wealth and mass poverty, with the great bulk of our people ill-clad, ill-housed, ill-fed, could be remedied. Nothing else than communal effort, massive in extent and earnestly engaged in, would suffice. To paraphrase Laski, with the necessary modification in line with such worthy constitutional ends, we look upon the state as an organization to promote the happiness of individuals, its authority as a power bound by subordination to that purpose, liberty while to be viewed negatively as absence of restraint impressed with a positive aspect as well to assure individual self-fulfillment in the attainment of which greater responsibility is thrust on government; and rights as boundary marks defining areas outside its domain.37 From which it would follow as Laski so aptly stated that it is the individual's "happiness and not its well-being [that is] the criterion by which its behavior [is] to be judged. His interests, and not its power, set the limits to the authority it [is] entitled to exercise."38 We have under such a test enlarged its field of competence. 4. With the decision reached by us today, the government is freed from the compulsion exerted by the Bacani doctrine of the "constituent-ministrant" test as a criterion for the type of activity in which it may engage. Its constricting effect is consigned to oblivion. No doubts or misgivings need assail us that governmental efforts to promote the public weal, whether through regulatory legislation of vast scope and amplitude or through the undertaking of business activities, would have to face a searching and rigorous scrutiny. It is clear that their legitimacy cannot be challenged on the ground alone of their being offensive to the implications of the laissez-faire concept. Unless there be a repugnancy then to the limitations expressly set forth in the Constitution to protect individual rights, the government enjoys a much wider latitude of action as to the means it chooses to cope with grave social and economic problems that urgently press for solution. For me, at least, that is to manifest deference to the philosophy of our fundamental law. Hence my full concurrence, as announced at the outset. 5. The opinion of Justice Makalintal contains this footnote: "It must be stated, however, that we do not here decide the question not at issue in this case of whether or not a labor organization composed employees discharging governmental functions, which is allowed under the legal provision just quoted, provided such organization does not impose the obligation to strike or to join in strike, may petition for a certification election and compel the employer to bargain collectively with it for purposes other than to secure changes or conditions in the terms and conditions of employment." With such an affirmation as to the scope of our decision there being no holding on the vexing question of the effects on the rights of labor in view of the conclusion reached that the function engaged in is governmental in character, I am in full agreement. The answer to such a vital query must await another day.

Footnotes Land Authority, Land Bank, Agricultural Productivity Commission; Office of the Agrarian Counsel.
1

The Land Reform Project Administration is the organization through which the field operations of member agencies (of which the ACA is one) shall be undertaken by their respective personnel under a unified administration. (Section 2 of Article 1, Executive Order No. 75)
2

Section 79 (D) of the Revised Administrative Code provides in part: "The Department Head, upon the recommendation of the Chief of bureaus or office concerned, shall appoint all subordinate officers and employees whose appointment is not expressly vested by law in the President of the Philippines. . . . ."
3

National Coal Co. v. Collector, 46 Phil. 583 (1924); Gov't. of P.I. v. Springer, 50 Phil. 259 (1927); Govt. of P.I. v. China Banking Corp., 54 Phil. 845 (1930); Association Cooperativa de Credito Agricola de Miagao v. Monteclaro, 74 Phil. 281 (1943); Abad Santos v. Auditor General, 79 Phil. 190 (1947); National Airports Corp. v. Teodoro, 91 Phil. 203 (1952); GSIS v. Castillo, 98 Phil. 876 (1956); Price Stabilization Corp., 102 Phil. 515 (1957); Boy Scouts of Phil. v. Araos, 102 Phil. 1080 (1958); Naric Worker's Union v. Alvendia, 107 Phil. 404 (1960); GSIS Employees Asso. v. Alvendia, L-15614, May 30, 1960; National Dev. Co. v. Tobias, 7 SCRA 692 (1963); SSS Employees Asso. v. Soriano, 7 SCRA 1016 (1963); PAL Employees' Asso. v. Phil. Airlines, Inc., 11 SCRA 387 (1964); Nawasa v. NWSA Consolidated Unions, 11 SCRA 766 (1964); Phil. Mfg. Co. v. Manila Port Service, 16 SCRA 95 (1966) and Phil. Postal Savings Bank v. Court, 21 SCRA 1330 (1967).
1 2

100 Phil. 468 (1956).

Bacani vs. National Coconut Corporation, G.R. No. L-9657, Nov. 29, 1956, 53 O.G. p. 2800.
4

Ibid., p. 472. Ibid.

Malcolm, The Government of Philippine Islands.

Malcolm, The Government of the Philippines, pp. 19-20; Bacani vs. National Coconut Corporation, supra.
5

It must be stated, however, that we do not here decide the question not at issue in this case of whether or not a labor organization composed of employees discharging governmental functions, which is allowed under the legal provision just quoted provided such organization does not impose the obligation to strike or to join in strike, may petition for a certification election and compel the employer to bargain collectively with it for purposes other than to secure changes or modifications in the terms and conditions of their employment. Withal, it may not be amiss to observe, albeit obiter, that the right to organize thus allowed would be meaningless unless there is a correlative right on the part of the organization to be recognized as the proper representative of the employees and to bargain in their behalf in relation to matters outside the limitations imposed by the statute, such as those provided for in Section 28 (b) of Republic Act No. 2260, concerning complaints and grievances of the employees.
6 7

The Constitutional Position of the Property Owner in 2 Selected Essays on Constitutional Law, p. 2 (1938).
6 7

Cardozo, The Nature of Judicial Process, p. 77 (1921). 198 US 45 (1905). 208 US 412. 243 US 426. 261 Us 525. Again there was a vigorous dissent from Holmes. 300 US 379. 262 US 522. 291 US 502. Jackson, Struggle for Judicial Supremacy, p. 74, (1941).

10

11

Reenacted in Sec. 28 (c) of the Civil Service Act of 1959, R.A. No. 2260.

12

13

FERNANDO, J., CONCURRING:

14

15

16

284 Fed. 613 (1922).

As was stated in the above work of Jackson: "But in just three years, beginning with the October 1933 term, the Court refused to recognize the power of Congress in twelve cases. Five of these twelve decisions occurred during a single year: that is, the October 1935 term; four of the five, by a sharply divided court." Jackson, op. cit. p. 41..
17 18

2 Selected Essays on Constitutional Law, op, cit., p. 27. 319 US 624. 39 Phil. 660, 717-718. 50 Phil. 259. 46 Phil. 440. 261 US 525.

extrema miseria y de un lujo extremo? Fue Henry George el primero que llamo la atencion del mundo sobre este problema. Toda la bendicion de nuestra civilizacion, las enormes conquistas que el mundo ha realizado en el orden cientifico, han tendido solamente a producir la felicidad de unos pocos y la miseria de las grandes muchedumbres. Creo que este problema es digno de atencion en todas partes del mundo, y a menos que nosotros pongamos las medidas que han de atajar los peligros de futuro, nuestra sociedad estara siempre sujeta a las alarmas que puedan producir las muchedumbres hambrientas y deseosas de su propio bienestar."
28

19

Ibid., pp. 293-294. Ibid., I, Laurel ed., pp. 471-472.

70 Phil. 340.

20

29

21

30

22

31

Ibid., pp. 356-357. Ibid., p. 360.

Holmes, The Common Law, p. 1 (1881). Cardozo, op. cit., p. 47. Art. II, Sec. 5, Constitution. Calalang v. Williams, 70 Phil. 726, 734-735 (1940). Laski, The State in Theory and Practice, p. 35 (1935).

23

32

III Proceedings of the Philippine Constitutional Convention, Laurel ed., pp. 173-174 (1966).
24 25

33

34

Ibid., pp. 177-178. Ibid., p. 178.

35

26

36

Cf. Ibid., pp. 227-228. To quote from Delegate Palma: "Uno de los principios constitucionales es el referente a la limitacion de la propiedad individual. Por que se va a limitar la adquisicion de la propiedad. Ese es otro de los prejuicios y preocupaciones que tenemos nosotros, cuando en realidad el mundo esta sufiendo actualmente por causa de las teorias antiguas sobre la propiedad. Ya he dicho aqui, o no se si en otra parte, que la nocion actual sobre propiedad es la vinculacion perpetua de todos los bienes que se pueden acumular por una familia, hasta el ultimo de sus mas remotos descendientes, ha producido ese enorme desnivel de riqueza que se nota en todas partes del mundo, la extrema miseria al lado del extremo lujo. Una docena de enormes millonarios, al lado de millones y millones de seres desprovistos de lo mas elemental y rudimentario, para satisfacer las necesidades ordinarias. Y que? Vamos a permanecer indiferentes antes que ante nuestra propia situacion? Hablamos tanto de democracia, de prosperidad para el gran numero hacemos algo a favor de ese gran numero que constituye la fuerza de la nacion? No vamos siquiera a dedicar un momento de nuestra atencion a la gran injusticia social que supone el resultado de una
27

37

38

Ibid., at p. 36.

Republic SUPREME Manila EN BANC G.R No. 187167

of

the

Philippines COURT

The Antecedents In 1961, Congress passed Republic Act No. 3046 (RA 3046) 2 demarcating the maritime baselines of the Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I), 4 codifying, among others, the sovereign right of States parties over their "territorial sea," the breadth of which, however, was left undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo. In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III), 5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines7 and sets the deadline for the filing of application for the extended continental shelf.8 Complying with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of islands" whose islands generate their own applicable maritime zones. Petitioners, professors of law, law students and a legislator, in their respective capacities as "citizens, taxpayers or x x x legislators,"9 as the case may be, assail the constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine states sovereign power, in violation of Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the countrys waters landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the countrys nuclear -free policy, and damaging marine resources, in violation of relevant constitutional provisions.13 In addition, petitioners contend that RA 9522s treatment of the KIG as "regime of islands" not only results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.14 To buttress their argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded and included its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS IIIs framework of regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal.

August 16, 2011

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY C. ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA BARBARA ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN MARRI CAETE, VANN ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA ANNE TORNO, MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners, vs. HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE INFORMATION AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED NATIONS, Respondents. DECISION CARPIO, J.: The Case This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No. 95221 (RA 9522) adjusting the countrys archipelagic baselines and classifying the baseline regime of nearby territories.

Commenting on the petition, respondent officials raised threshold issues questioning (1) the petitions compliance with the case or controversy requirement for judicial review grounded on petitioners alleged lack of locus standi and (2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the countrys compliance with the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not undermine the countrys security, environment and economic interests or relinquish the Philippines claim over Sabah. Respondents also question the normative force, under international law, of petitioners assertion that what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found within the boundaries of the rectangular area drawn under the Treaty of Paris. We left unacted petitioners prayer for an injunctive writ. The Issues The petition raises the following issues: 1. Preliminarily 1. Whether petitioners possess locus standi to bring this suit; and 2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of RA 9522. 2. On the merits, whether RA 9522 is unconstitutional. The Ruling of the Court On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522 unconstitutional.

nor misuse of public funds,16 occasioned by the passage and implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as citizens with constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing "a more direct and specific interest" to bring the suit, thus satisfying one of the requirements for granting citizenship standing.17

The Writs of Are Proper the Constitutionality of Statutes

Certiorari Remedies

and to

Prohibition Test

In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents and resulting prejudice on the part of petitioners.18 Respondents submission holds true in ordinary civil proceedings. When this Court exercises its constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of other branches of government. 20 Issues of constitutional import are sometimes crafted out of statutes which, while having no bearing on the personal interests of the petitioners, carry such relevance in the life of this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass upon the issues raised, non-compliance with the letter of procedural rules notwithstanding. The statute sought to be reviewed here is one such law.

RA 9522 is RA 9522 is to Demarcate Maritime Zones Shelf Under UNCLOS Delineate Philippine Territory

Not the and III,

Statutory

Unconstitutional Tool Countrys Continental not to

On Petitioners Standi as Citizens

the

Threshold Possess

Issues Locus

Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition alleges neither infringement of legislative prerogative 15

Petitioners submit that RA 9522 "dismembers a large portion of the national territory" 21 because it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign control over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris technical description, Philippine sovereignty over

territorial waters extends hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area delineated in the Treaty of Paris. 22 Petitioners theory fails to persuade us. UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits. 23 UNCLOS III was the culmination of decades-long negotiations among United Nations members to codify norms regulating the conduct of States in the worlds oceans and submarine areas, recognizing coastal and archipelagic States graduated authority over a limited span of waters and submarine lands along their coasts. On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer: Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf . The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. (Emphasis supplied) Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treatybased rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77). Even under petitioners theory that the Philippine territory embraces the islands and all the waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but from the "outermost islands and drying reefs of the archipelago."24

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession and prescription,25 not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treatys terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the rules on general international law. 26

RA 9522s Use of the Framework of Regime of Islands to Determine the Maritime Zones of the KIG and the Scarborough Shoal, not Inconsistent with the Philippines Claim of Sovereignty Over these Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the baselines, and to measure the breadth of the applicable maritime zones of the KIG, "weakens our territorial claim" over that area.27 Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the Philipp ine archipelagic baselines results in the loss of "about 15,000 square nautical miles of territorial waters," prejudicing the livelihood of subsistence fishermen.28 A comparison of the configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this view.1avvphi1 The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS IIIs limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind out of petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim over the KIG, assuming that baselines are relevant for this purpose. Petitioners assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of basepoints, increased the Philippines total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:29

Extent of maritime area using RA 3046, as amended, taking into account the Treaty of Paris delimitation (in square nautical miles) Internal archipelagic waters Territorial Sea Exclusive Economic Zone TOTAL 440,994 or 166,858 274,136

Extent of maritime area using RA 9522, taking into account UNCLOS III (in square nautical miles)

171,435 32,106 382,669 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will have to be a delineation of maritime boundaries in accordance with UNCLOS III.30

Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS): a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied) Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago." Second, Article 47 (2) of UNCLOS III requires that "the length of the baselines shall not exceed 100 nautical miles," save for three per cent (3%) of the total number of baselines which can reach up to 125 nautical miles.31 Although the Philippines has consistently claimed sovereignty over the KIG 32 and the Scarborough Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago, 33 such that any straight baseline loped around them from the nearest basepoint will inevitably "depart to an appreciable extent from the general configuration of the archipelago." The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to emphasize the foregoing during the Senate deliberations: What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the Scarborough Shoal are outside our archipelagic baseline because if we put them

Nations because of the rule that it should follow the natural configuration of the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits.1avvphi1 The need to shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became imperative as discussed by respondents: [T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical deficiencies, to wit: 1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the [UNCLOS III], which states that "The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles." 2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from the baselines system. This will enclose an additional 2,195 nautical miles of water. 3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic survey methods. Accordingly, some of the points, particularly along the west coasts of Luzon down to Palawan were later found to be located either inland or on water, not on low-water line and drying reefs as prescribed by Article 47.35 Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress decision to classify the KIG and the Scarborough Shoal as "Regime[s] of Islands under the Republic of the Philippines consistent with Article 121" 36 of UNCLOS III manifests the Philippine States responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any "naturally formed area of land, surrounded by water, which is above water at high tide," such as portions of the KIG, qualifies under the category of "regime of islands," whose islands generate their own applicable maritime zones.37

inside our baselines we might be accused of violating the provision of international law which states: "The drawing of such baseline shall not depart to any appreciable extent from the general configuration of the archipelago." So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still allowed by international law to claim them as our own.

This is called contested islands outside our configuration. We see that our archipelago is defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya

kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United

Statutory RA 5446 Retained

Claim

Over

Sabah

under

Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah: Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress.41 In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treatys limitations and conditions for their exercise. 42 Significantly, the right of innocent passage is a customary international law, 43 thus automatically incorporated in the corpus of Philippine law.44 No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community. The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea lanes passage 45 does not place them in lesser footing vis--vis continental coastal States which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III. 47 Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative guides, which, absent enabling legislation, "do not embody judicially enforceable constitutional rights x x x."49 Article II provisions serve as guides in formulating and interpreting implementing legislation, as well as in interpreting executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII, Section 2, paragraph 2 51 ) and subsistence fishermen (Article XIII, Section 752 ), are not violated by RA 9522.

UNCLOS III and RA 9522 not Incompatible with the Constitutions Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the Constitution.38 Whether referred to as Philippine "internal waters" under Article I of the Constitution 39 or as "archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III affirms this: Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil. 1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast. 2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein. xxxx 4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein. (Emphasis supplied)

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and nonliving resources within such zone. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to be bound by it. UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime space the exclusive economic zone in waters previously part of the high seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles. 53 UNCLOS III, however, preserves the traditional freedom of navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III.

WE CONCUR: RENATO C. CORONA Chief Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice JOSE C. MENDOZA Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice ARTURO D. BRION Associate Justice LUCAS P. BERSAMIN Associate Justice ROBERTO A. ABAD Associate Justice JOSE PORTUGAL PEREZ Associate Justice

RA 9522 and the Philippines Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners reading plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court. Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III compliant baselines law, an archipelagic State like the Philippines will find itself devoid of internationally acceptable baselines from where the breadth of its maritime zones and continental shelf is measured. This is recipe for a two-fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and exploit the resources in the waters and submarine areas around our archipelago; and second, it weakens the countrys case in any international dispute over Philippine maritime space. These are consequences Congress wisely avoided. The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the Philippines maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest. WHEREFORE, we DISMISS the petition. SO ORDERED. ANTONIO T. CARPIO Associate Justice Footnotes

MARIA LOURDES P. A. SERENO Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. RENATO C. CORONA Chief Justice

Entitled "An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purposes."
1

Entitled "An Act to Define the Baselines of the Territorial Sea of the Philippines."
2

The third "Whereas Clause" of RA 3046 expresses the import of treating the Philippines as an archipelagic State:
3

soon as possible but in any case within 10 years of the entry into force of this Convention for that State. The coastal State shall at the same time give the names of any Commission members who have provided it with scientific and technical advice." (Underscoring supplied) In a subsequent meeting, the States parties agreed that for States which became bound by the treaty before 13 May 1999 (such as the Philippines) the ten-year period will be counted from that date. Thus, RA 9522, which took effect on 27 March 2009, barely met the deadline.
9

"WHEREAS, all the waters around, between, and connecting the various islands of the Philippine archipelago, irrespective of their width or dimensions, have always been considered as necessary appurtenances of the land territory, forming part of the inland waters of the Philippines." One of the four conventions framed during the first United Nations Convention on the Law of the Sea in Geneva, this treaty, excluding the Philippines, entered into force on 10 September 1964.
4 5

Rollo, p. 34.

UNCLOS III entered into force on 16 November 1994. The Philippines signed the treaty on 10 December 1982. Article 47, paragraphs 1-3, provide: 1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. 2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. (Emphasis supplied) xxxx

Which provides: "The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines."
10

Entered into between the Unites States and Spain on 10 December 1898 following the conclusion of the Spanish-American War. Under the terms of the treaty, Spain ceded to the United States "the archipelago known as the Philippine Islands" lying within its technical description.
11

The Treaty of Washington, between Spain and the United States (7 November 1900), transferring to the US the islands of Cagayan, Sulu, and Sibutu and the US-Great Britain Convention (2 January 1930) demarcating boundary lines between the Philippines and North Borneo.
12 13

Article II, Section 7, Section 8, and Section 16.

Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII, Section 7 of the Constitution.
14 15

Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).

UNCLOS III entered into force on 16 November 1994. The deadline for the filing of application is mandated in Article 4, Annex II: "Where a coastal State intends to establish, in accordance with article 76, the outer limits of its continental shelf beyond 200 nautical miles, it shall submit particulars of such limits to the Commission along with supporting scientific and technical data as
8

Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. COMELEC, 165 Phil. 303 (1976).
16

Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, 5 May 1994, 232 SCRA 110, 155-156 (1995) (Feliciano, J., concurring). The two other factors are: "the
17

character of funds or assets involved in the controversy and a clear disregard of constitutional or statutory prohibition." Id.
18

The last paragraph of the preamble of UNCLOS III states that "matters not regulated by this Convention continue to be governed by the rules and principles of general international law."
26 27

. Rollo, pp. 144-147.

Rollo, p. 51.
Id. at 51-52, 64-66. Based on figures respondents submitted in their Comment (id. at 182). Under Article 74. See note 7. Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan.

See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623 (dismissing a petition for certiorari and prohibition assailing the constitutionality of Republic Act No. 9716, not for the impropriety of remedy but for lack of merit); Aldaba v. COMELEC, G.R. No. 188078, 25 January 2010, 611 SCRA 137 (issuing the writ of prohibition to declare unconstitutional Republic Act No. 9591); Macalintal v. COMELEC, 453 Phil. 586 (2003) (issuing the writs of certiorari and prohibition declaring unconstitutional portions of Republic Act No. 9189).
19

28

29

30

31

See e.g. Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 March 2008, 549 SCRA 77 (granting a writ of
20

32

certiorari against the Philippine Senate and nullifying the Senate contempt order issued against petitioner).
21

KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is around 123 nautical west of Zambales.
33 34

Rollo, p. 31.

Journal, Senate 14th Congress 44th Session 1416 (27 January 2009).

Respondents state in their Comment that petitioners theory "has not been accepted or recognized by either the United States or Spain," the parties to the Treaty of Paris. Respondents add that "no State is known to have supported this proposition." Rollo, p. 179.
22

35

Rollo, p. 159.
Section 2, RA 9522. Article 121 provides: "Regime of islands. 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf."

36

UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner Magallona himself defined as "a body of treaty rules and customary norms governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. x x x x" (Merlin M. Magallona, Primer on the Law of the Sea 1 [1997]) (Italicization supplied).
23 24

37

Following Article 47 (1) of UNCLOS III which provides: An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. (Emphasis supplied)

38

Rollo, pp. 56-57, 60-64.

Under the United Nations Charter, use of force is no longer a valid means of acquiring territory.
25

Paragraph 2, Section 2, Article XII of the Constitution uses the term "archipelagic waters" separately from "territorial sea." Under UNCLOS III, an
39

archipelagic State may have internal waters such as those enclosed by closing lines across bays and mouths of rivers. See Article 50, UNCLOS III. Moreover, Article 8 (2) of UNCLOS III provides: "Where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters." (Emphasis supplied)
40

or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary. 5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that such ships and aircraft shall not navigate closer to the coasts than 10 per cent of the distance between the nearest points on islands bordering the sea lane. 6. An archipelagic State which designates sea lanes under this article may also prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes. 7. An archipelagic State may, when circumstances require, after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by it. 8. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations. 9. In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them. 10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic separation schemes designated or prescribed by it on charts to which due publicity shall be given. 11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic separation schemes established in accordance with this article.

Mandated under Articles 52 and 53 of UNCLOS III: Article 52. Right of innocent passage. 1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3. 2. The archipelagic State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published. (Emphasis supplied) Article 53. Right of archipelagic sea lanes passage. 1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. 2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes. 3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. 4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation

12. If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation. (Emphasis supplied) Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled "AN ACT TO ESTABLISH THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINE ARCHIPELAGIC WATERS, PRESCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND AIRCRAFTS EXERCISING THE RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE THROUGH THE ESTABLISHED ARCHIPELAGIC SEA LANES AND PROVIDING FOR THE ASSOCIATED PROTECTIVE MEASURES THEREIN."
41 42

(d) any act of propaganda aimed at affecting the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft; (f) the launching, landing or taking on board of any military device; (g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; (h) any act of willful and serious pollution contrary to this Convention; (i) any fishing activities; (j) the carrying out of research or survey activities; (k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; (l) any other activity not having a direct bearing on passage Article 21. Laws and regulations of the coastal State relating to innocent passage. 1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following: (a) the safety of navigation and the regulation of maritime traffic; (b) the protection of navigational aids and facilities and other facilities or installations; (c) the protection of cables and pipelines;

The relevant provision of UNCLOS III provides: Article 17. Right of innocent passage. Subject to this Convention, ships of all States, whether coastal or landlocked, enjoy the right of innocent passage through the territorial sea. (Emphasis supplied) Article 19. Meaning of innocent passage. 1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law. 2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: (a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; (b) any exercise or practice with weapons of any kind; (c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) the conservation of the living resources of the sea; (e) the prevention of infringement of the fisheries laws and regulations of the coastal State; (f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; (g) marine scientific research and hydrographic surveys; (h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State. 2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards. 3. The coastal State shall give due publicity to all such laws and regulations. 4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea. The right of innocent passage through the territorial sea applies only to ships and not to aircrafts (Article 17, UNCLOS III). The right of innocent passage of aircrafts through the sovereign territory of a State arises only under an international agreement. In contrast, the right of innocent passage through archipelagic waters applies to both ships and aircrafts (Article 53 (12), UNCLOS III).
43

"Archipelagic sea lanes passage is essentially the same as transit passage through straits" to which the territorial sea of continental coastal State is subject. R.R. Churabill and A.V. Lowe, The Law of the Sea 127 (1999).
45 46

Falling under Article 121 of UNCLOS III (see note 37).

Within the exclusive economic zone, other States enjoy the following rights under UNCLOS III:
47

Article 58. Rights and duties of other States in the exclusive economic zone. 1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part. xxxx Beyond the exclusive economic zone, other States enjoy the freedom of the high seas, defined under UNCLOS III as follows: Article 87. Freedom of the high seas. 1. The high seas are open to all States, whether coastal or landlocked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a) freedom of navigation; (b) freedom of overflight;

Following Section 2, Article II of the Constitution: "Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations." (Emphasis supplied)
44

(c) freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII. 2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.
48

54

Rollo, pp. 67-69.

Article 47 (1) provides: "An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1." (Emphasis supplied) in the Area.
55

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION VELASCO, JR., J.: I concur with the ponencia and add the following complementary arguments and observations: A statute is a product of hard work and earnest studies of Congress to ensure that no constitutional provision, prescription or concept is infringed. Withal, before a law, in an appropriate proceeding, is nullified, an unequivocal breach of, or a clear conflict with, the Constitution must be demonstrated in such a way as to leave no doubt in the mind of the Court.1 In the same token, if a law runs directly afoul of the Constitution, the Courts duty on the matter should be clear and simple: Pursuant to its judicial power and as final arbiter of all legal questions,2 it should strike such law down, however laudable its purpose/s might be and regardless of the deleterious effect such action may carry in its wake. Challenged in these proceedings is the constitutionality of Republic Act (RA 9522) entitled "An Act to Amend Certain Provisions of [RA] 3046, as Amended by [RA] 5446 to Define the Archipelagic Baselines Of The Philippines and for Other Purposes." For perspective, RA 3046, "An Act to Define the Baselines of the Territorial Sea of the Philippines, was enacted in 1961 to comply with the United Nations Convention on the Law of the Sea (UNCLOS) I. Eight years later, RA 5446 was enacted to amend typographical errors relating to coordinates in RA 3046. The latter law also added a provision asserting Philippine sovereignty over Sabah. As its title suggests, RA 9522 delineates archipelagic baselines of the country, amending in the process the old baselines law, RA 3046. Everybody is agreed that RA 9522 was enacted in response to the countrys commitment to conform to some 1982 Law of the Sea

See note 13.

49

Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Taada v. Angara, 338
G.R. No. 101083, 30 July 1993, 224 SCRA 792.

Phil. 546, 580-581 (1997).

50

"The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens."
51

"The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources."
52

This can extend up to 350 nautical miles if the coastal State proves its right to claim an extended continental shelf (see UNCLOS III, Article 76, paragraphs 4(a), 5 and 6, in relation to Article 77).
53

Convention (LOSC) or UNCLOS III provisions to define new archipelagic baselines through legislation, the Philippines having signed 3 and eventually ratified4 this multilateral treaty. The Court can take judicial notice that RA 9522 was registered and deposited with the UN on April 4, 2009. As indicated in its Preamble,5 1982 LOSC aims, among other things, to establish, with due regard for the sovereignty of all States, "a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans." One of the measures to attain the order adverted to is to have a rule on baselines. Of particular relevance to the Philippines, as an archipelagic state, is Article 47 of UNCLOS III which deals with baselines: 1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. 2. The length of such baseline shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. xxxx 9. The archipelagic State shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.6 (Emphasis added.) To obviate, however, the possibility that certain UNCLOS III baseline provisions would, in their implementation, undermine its sovereign and/or jurisdictional interests over what it considers its territory,7 the Philippines, when it signed UNCLOS III on December 10, 1982, made the following "Declaration" to said treaty: The Government of the Republic of the Philippines [GRP] hereby manifests that in signing the 1982 United Nations Convention on the Law of the Sea, it does so with the understandings embodied in this declaration, made under the provisions of Article 310 of the Convention, to wit:

The signing of the Convention by the [GRP] shall not in any manner impair or prejudice the sovereign rights of the [RP] under and arising from the Constitution of the Philippines; Such signing shall not in any manner affect the sovereign rights of the [RP] as successor of the United States of America [USA], under and arising out of the Treaty of Paris between Spain and the United States of America of December 10, 1898, and the Treaty of Washington between the [USA] and Great Britain of January 2, 1930; xxxx Such signing shall not in any manner impair or prejudice the sovereignty of the [RP] over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto; The Convention shall not be construed as amending in any manner any pertinent laws and Presidential Decrees or Proclamations of the Republic of the Philippines. The [GRP] maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippine Constitution; The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic state over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty independence and security; The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation.8 (Emphasis added.) Petitioners challenge the constitutionality of RA 9522 on the principal ground that the law violates Section 1, Article I of the 1987 Constitution on national territory which states: Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Emphasis supplied.)

According to Fr. Joaquin Bernas, S.J., himself a member of the 1986 Constitutional Commission which drafted the 1987 Constitution, the aforequoted Section 1 on national territory was "in substance a copy of its 1973 counterpart."9 Art. I of the 1973 Constitution reads: Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories belonging to the Philippines by historic right or legal title, including the territorial sea, the air space, the subsoil, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Emphasis added.) As may be noted both constitutions speak of the "Philippine archipelago," and, via the last sentence of their respective provisions, assert the countrys adherence to the "archipelagic principle." Both constitutions divide the national territory into two main groups: (1) the Philippine archipelago and (2) other territories belonging to the Philippines. So what or where is Philippine archipelago contemplated in the 1973 and 1987 Constitutions then? Fr. Bernas answers the poser in the following wise: Article I of the 1987 Constitution cannot be fully understood without reference to Article I of the 1973 Constitution. x x x xxxx x x x To understand [the meaning of national territory as comprising the Philippine archipelago], one must look into the evolution of [Art. I of the 1973 Constitution] from its first draft to its final form. Section 1 of the first draft submitted by the Committee on National Territory almost literally reproduced Article I of the 1935 Constitution x x x. Unlike the 1935 version, however, the draft designated the Philippines not simply as the Philippines but as "the Philippine archipelago.10 In response to the criticism that the definition was colonial in tone x x x, the second draft further designated the Philippine archipelago, as the historic home of the Filipino people from its beginning.11 After debates x x x, the Committee reported out a final draft, which became the initially approved version: "The national territory consists of the Philippine archipelago which is the ancestral home of the Filipino people and which is composed of all the islands and waters embraced therein" What was the intent behind the designation of the Philippines as an "archipelago"? x x x Asked by Delegate Roselller Lim (Zamboanga) where this archipelago was, Committee

Chairman Quintero answered that it was the area delineated in the Treaty of Paris. He said that objections to the colonial implication of mentioning the Treaty of Paris was responsible for the omission of the express mention of the Treaty of Paris. Report No. 01 of the Committee on National Territory had in fact been explicit in its delineation of the expanse of this archipelago. It said: Now if we plot on a map the boundaries of this archipelago as set forth in the Treaty of Paris, a huge or giant rectangle will emerge, measuring about 600 miles in width and 1,200 miles in length. Inside this giant rectangle are the 7,100 islands comprising the Philippine Islands. From the east coast of Luzon to the eastern boundary of this huge rectangle in the Pacific Ocean, there is a distance of over 300 miles. From the west coast of Luzon to the western boundary of this giant rectangle in the China sea, there is a distance of over 150 miles. When the [US] Government enacted the Jones Law, the Hare-Hawes Cutting Law and the Tydings McDuffie Law, it in reality announced to the whole world that it was turning over to the Government of the Philippine Islands an archipelago (that is a big body of water studded with islands), the boundaries of which archipelago are set forth in Article III of the Treaty of Paris. It also announced to the whole world that the waters inside the giant rectangle belong to the Philippines that they are not part of the high seas. When Spain signed the Treaty of Paris, in effect she announced to the whole world that she was ceding to the [US] the Philippine archipelago x x x, that this archipelago was bounded by lines specified in the treaty, and that the archipelago consisted of the huge body of water inside the boundaries and the islands inside said boundaries. The delineation of the extent of the Philippine archipelago must be understood in the context of the modifications made both by the Treaty of Washington of November 7, 1900, and of the Convention of January 12, 1930, in order to include the Islands of Sibutu and of Cagayan de Sulu and the Turtle and Mangsee Islands. However, x x x the definition of the archipelago did not include the Batanes group[, being] outside the boundaries of the Philippine archipelago as set forth in the Treaty of Paris. In literal terms, therefore, the Batanes islands would come not under the Philippine archipelago but under the phrase "all other territories belong to the Philippines."12 x x x (Emphasis added.) From the foregoing discussions on the deliberations of the provisions on national territory, the following conclusion is abundantly evident: the "Philippine archipelago" of the 1987 Constitution is the same "Philippine archipelago" referred to in Art. I of the 1973 Constitution which in turn corresponds to the territory defined and described in Art. 1 of the 1935 Constitution,13 which pertinently reads:

Section 1. The Philippines comprises all the territory ceded to the [US] by the Treaty of Paris concluded between the [US] and Spain on the tenth day of December, [1898], the limits of which are set forth in Article III of said treaty, together with all the islands in the treaty concluded at Washington, between the [US] and Spain on November [7, 1900] and the treaty concluded between the [US] and Great Britain x x x. While the Treaty of Paris is not mentioned in both the 1973 and 1987 Constitutions, its mention, so the nationalistic arguments went, being "a repulsive reminder of the indignity of our colonial past,"14 it is at once clear that the Treaty of Paris had been utilized as key reference point in the definition of the national territory. On the other hand, the phrase "all other territories over which the Philippines has sovereignty or jurisdiction," found in the 1987 Constitution, which replaced the deleted phrase "all territories belonging to the Philippines by historic right or legal title" 15 found in the 1973 Constitution, covers areas linked to the Philippines with varying degrees of certainty.16 Under this category would fall: (a) Batanes, which then 1971 Convention Delegate Eduardo Quintero, Chairperson of the Committee on National Territory, described as belonging to the Philippines in all its history; 17 (b) Sabah, over which a formal claim had been filed, the so-called Freedomland (a group of islands known as Spratleys); and (c) any other territory, over which the Philippines had filed a claim or might acquire in the future through recognized modes of acquiring territory.18 As an author puts it, the deletion of the words "by historic right or legal title" is not to be interpreted as precluding future claims to areas over which the Philippines does not actually exercise sovereignty.19 Upon the foregoing perspective and going into specifics, petitioners would have RA 9522 stricken down as unconstitutional for the reasons that it deprives the Philippines of what has long been established as part and parcel of its national territory under the Treaty of Paris, as supplemented by the aforementioned 1900 Treaty of Washington or, to the same effect, revises the definition on or dismembers the national territory. Pushing their case, petitioners argue that the constitutional definition of the national territory cannot be remade by a mere statutory act.20 As another point, petitioners parlay the theory that the law in question virtually weakens the countrys territorial claim over the Kalayaan Island Group (KIG) and Sabah, both of which come under the category of "other territories" over the Philippines has sovereignty or jurisdiction. Petitioners would also assail the law on grounds related to territorial sea lanes and internal waters transit passage by foreign vessels. It is remarkable that petitioners could seriously argue that RA 9522 revises the Philippine territory as defined in the Constitution, or worse, constitutes an abdication of territory. It cannot be over-emphasized enough that RA 9522 is a baseline law enacted to implement the 1982 LOSC, which in turn seeks to regulate and establish an orderly sea

use rights over maritime zones. Or as the ponencia aptly states, RA 9522 aims to markout specific base points along the Philippine coast from which baselines are drawn to serve as starting points to measure the breadth of the territorial sea and maritime zones.21 The baselines are set to define the sea limits of a state, be it coastal or archipelagic, under the UNCLOS III regime. By setting the baselines to conform to the prescriptions of UNCLOS III, RA 9522 did not surrender any territory, as petitioners would insist at every turn, for UNCLOS III is concerned with setting order in the exercise of sea-use rights, not the acquisition or cession of territory. And let it be noted that under UNCLOS III, it is recognized that countries can have territories outside their baselines. Far from having a dismembering effect, then, RA 9522 has in a limited but real sense increased the countrys maritime boundaries. How this situation comes about was extensively explained by then Minister of State and head of the Philippine delegation to UNCLOS III Arturo Tolentino in his sponsorship speech22 on the concurrence of the Batasang Pambansa with the LOSC: xxxx Then, we should consider, Mr. Speaker, that under the archipelagic principle, the whole area inside the archipelagic base lines become a unified whole and the waters between the islands which formerly were regarded by international law as open or international seas now become waters under the complete sovereignty of the Filipino people. In this light there would be an additional area of 141,800 square nautical miles inside the base lines that will be recognized by international law as Philippine waters, equivalent to 45,351,050 hectares. These gains in the waters of the sea, 45,211,225 hectares outside the base lines and 141,531,000 hectares inside the base lines, total 93,742,275 hectares as a total gain in the waters under Philippine jurisdiction. From a pragmatic standpoint, therefore, the advantage to our country and people not only in terms of the legal unification of land and waters of the archipelago in the light of international law, but also in terms of the vast resources that will come under the dominion and jurisdiction of the Republic of the Philippines, your Committee on Foreign Affairs does not hesitate to ask this august Body to concur in the Convention by approving the resolution before us today. May I say it was the unanimous view of delegations at the Conference on the Law of the Sea that archipelagos are among the biggest gainers or beneficiaries under the Convention on the Law of the Sea. Lest it be overlooked, the constitutional provision on national territory, as couched, is broad enough to encompass RA 9522s definition of the archipelagic baselines. To reiterate, the laying down of baselines is not a mode of acquiring or asserting ownership a territory over which a state exercises sovereignty. They are drawn for the purpose of defining or establishing the maritime areas over which a state can exercise sovereign rights. Baselines are used for fixing starting point from which the territorial belt is

measured seawards or from which the adjacent maritime waters are measured. Thus, the territorial sea, a marginal belt of maritime waters, is measured from the baselines extending twelve (12) nautical miles outward.23 Similarly, Art. 57 of the 1982 LOSC provides that the Exclusive Economic Zone (EEZ) "shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured." 24 Most important to note is that the baselines indicated under RA 9522 are derived from Art. 47 of the 1982 LOSC which was earlier quoted. Since the 1987 Constitutions definition of national territory does not delimit where the Philippines baselines are located, it is up to the political branches of the governmen t to supply the deficiency. Through Congress, the Philippines has taken an official position regarding its baselines to the international community through RA 3046, 25 as amended by RA 544626 and RA 9522. When the Philippines deposited a copy of RA 9522 with the UN Secretary General, we effectively complied in good faith with our obligation under the 1982 LOSC. A declaration by the Court of the constitutionality of the law will complete the bona fides of the Philippines vis-a-vis the law of the sea treaty. It may be that baseline provisions of UNCLOS III, if strictly implemented, may have an imposing impact on the signatory states jurisdiction and even their sovereignty. But this actuality, without more, can hardly provide a justifying dimension to nullify the complying RA 9522. As held by the Court in Bayan Muna v. Romulo,27 treaties and international agreements have a limiting effect on the otherwise encompassing and absolute nature of sovereignty. By their voluntary acts, states may decide to surrender or waive some aspects of their sovereignty. The usual underlying consideration in this partial surrender may be the greater benefits derived from a pact or reciprocal undertaking. On the premise that the Philippines has adopted the generally accepted principles of international law as part of the law of the land, a portion of sovereignty may be waived without violating the Constitution. As a signatory of the 1982 LOSC, it behooves the Philippines to honor its obligations thereunder. Pacta sunt servanda, a basic international law postulate that "every treaty in force is binding upon the parties to it and must be performed by them in good faith." 28 The exacting imperative of this principle is such that a state may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty." 29 The allegation that Sabah has been surrendered by virtue of RA 9522, which supposedly repealed the hereunder provision of RA 5446, is likewise unfounded. Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.

There is nothing in RA 9522 indicating a clear intention to supersede Sec. 2 of RA 5446. Petitioners obviously have read too much into RA 9522s amendment on the baselines found in an older law. Aside from setting the countrys baselines, RA 9522 is, in its Sec. 3, quite explicit in its reiteration of the Philippines exercise of sovereignty, thus: Section 3. This Act affirms that the Republic of the Philippines has dominion, sovereignty and jurisdiction over all portions of the national territory as defined in the Constitution and by provisions of applicable laws including, without limitation, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, as amended. To emphasize, baselines are used to measure the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf. Having KIG and the Scarborough Shoal outside Philippine baselines will not diminish our sovereignty over these areas. Art. 46 of UNCLOS III in fact recognizes that an archipelagic state, such as the Philippines, is a state "constituted wholly by one or more archipelagos and may include other islands." (emphasis supplied) The "other islands" referred to in Art. 46 are doubtless islands not forming part of the archipelago but are nevertheless part of the states territory. The Philippines sovereignty over KIG and Scarborough Shoal are, thus, in no way diminished. Consider: Other countries such as Malaysia and the United States have territories that are located outside its baselines, yet there is no territorial question arising from this arrangement. 30 It may well be apropos to point out that the Senate version of the baseline bill that would become RA 9522 contained the following explanatory note: The law "reiterates our sovereignty over the Kalayaan Group of Islands declared as part of the Philippine territory under Presidential Decree No. 1596. As part of the Philippine territory, they shall be considered as a regime of islands under Article 121 of the Convention."31 Thus, instead of being in the nature of a "treasonous surrender" that petitioners have described it to be, RA 9522 even harmonizes our baseline laws with our international agreements, without limiting our territory to those confined within the countrys baselines. Contrary to petitioners contention, the classification of KIG and the Scarborough Shoal as falling under the Philippines regime of islands is not constitutionally objectionable. Such a classification serves as compliance with LOSC and the Philippines assertion of sovereignty over KIG and Scarborough Shoal. In setting the baseline in KIG and Scarborough Shoal, RA 9522 states that these are areas "over which the Philippines likewise exercises sovereignty and jurisdiction." It is, thus, not correct for petitioners to claim that the Philippines has lost 15,000 square nautical miles of territorial waters upon making this classification. Having 15,000 square nautical miles of Philippine waters outside of our baselines, to reiterate, does not translate to a surrender of these waters. The Philippines maintains its assertion of ownership over territories outside of

its baselines. Even China views RA 9522 as an assertion of ownership, as seen in its Protest32 filed with the UN Secretary-General upon the deposit of RA 9522. We take judicial notice of the effective occupation of KIG by the Philippines. Petitioners even point out that national and local elections are regularly held there. The classification of KIG as under a "regime of islands" does not in any manner affect the Philippines consistent position with regard to sovereignty over KIG. It does not affect the Philippines other acts of ownership such as occupation or amend Presidential Decree No. 1596, which declared KIG as a municipality of Palawan. The fact that the baselines of KIG and Scarborough Shoal have yet to be defined would not detract to the constitutionality of the law in question. The resolution of the problem lies with the political departments of the government. All told, the concerns raised by the petitioners about the diminution or the virtual dismemberment of the Philippine territory by the enactment of RA 9522 are, to me, not well grounded. To repeat, UNCLOS III pertains to a law on the seas, not territory. As part of its Preamble,33 LOSC recognizes "the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans x x x." This brings me to the matter of transit passage of foreign vessels through Philippine waters. Apropos thereto, petitioners allege that RA 9522 violates the nuclear weapons-free policy under Sec. 8, in relation to Sec. 16, Art. II of the Constitution, and exposes the Philippines to marine pollution hazards, since under the LOSC the Philippines supposedly must give to ships of all states the right of innocent passage and the right of archipelagic sea-lane passage. The adverted Sec. 8, Art. II of the 1987 Constitution declares the adoption and pursuit by the Philippines of "a policy of freedom from nuclear weapons in its territory." On the other hand, the succeeding Sec. l6 underscores the States firm commitment "to protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature." Following the allegations of petitioners, these twin provisions will supposedly be violated inasmuch as RA 9522 accedes to the right of innocent passage and the right of archipelagic sea-lane passage provided under the LOSC. Therefore, ships of all nationsbe they nuclear-carrying warships or neutral commercial vessels transporting goodscan assert the right to traverse the waters within our islands. A cursory reading of RA 9522 would belie petitioners posture. In context, RA 9522 simply seeks to conform to our international agreement on the setting of baselines and

provides nothing about the designation of archipelagic sea-lane passage or the regulation of innocent passage within our waters. Again, petitioners have read into the amendatory RA 9522 something not intended. Indeed, the 1982 LOSC enumerates the rights and obligations of archipelagic partystates in terms of transit under Arts. 51 to 53, which are explained below: To safeguard, in explicit terms, the general balance struck by [Articles 51 and 52] between the need for passage through the area (other than straits used for international navigation) and the archipelagic states need for security, Article 53 gave the arc hipelagic state the right to regulate where and how ships and aircraft pass through its territory by designating specific sea lanes. Rights of passage through these archipelagic sea lanes are regarded as those of transit passage: (1) An archipelagic State may designate sea lanes and air routes thereabove, suitable for safe, continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. (2) All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes. (3) Archipelagic sea lanes passage is the exercise in accordance with the present Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.34 But owing to the geographic structure and physical features of the country, i.e., where it is "essentially a body of water studded with islands, rather than islands with water around them,"35 the Philippines has consistently maintained the conceptual unity of land and water as a necessary element for territorial integrity, 36 national security (which may be compromised by the presence of warships and surveillance ships on waters between the islands),37 and the preservation of its maritime resources. As succinctly explained by Minister Arturo Tolentino, the essence of the archipelagic concept is "the dominion and sovereignty of the archipelagic State within its baselines, which were so drawn as to preserve the territorial integrity of the archipelago by the inseparable unity of the land and water domain."38 Indonesia, like the Philippines, in terms of geographic reality, has expressed agreement with this interpretation of the archipelagic concept. So it was that in 1957, the Indonesian Government issued the Djuanda Declaration, therein stating : [H]istorically, the Indonesian archipelago has been an entity since time immemorial.1avvphi1 In view of the territorial entirety and of preserving the wealth of

the Indonesian state, it is deemed necessary to consider all waters between the islands and entire entity. x x x On the ground of the above considerations, the Government states that all waters around, between and connecting, the islands or parts of islands belonging to the Indonesian archipelago irrespective of their width or dimension are natural appurtenances of its land territory and therefore an integral part of the inland or national waters subject to the absolute sovereignty of Indonesia. 39 (Emphasis supplied.) Hence, the Philippines maintains the sui generis character of our archipelagic waters as equivalent to the internal waters of continental coastal states. In other words, the landward waters embraced within the baselines determined by RA 9522, i.e., all waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.40 Accordingly, such waters are not covered by the jurisdiction of the LOSC and cannot be subjected to the rights granted to foreign states in archipelagic waters, e.g., the right of innocent passage, 41 which is allowed only in the territorial seas, or that area of the ocean comprising 12 miles from the baselines of our archipelago; archipelagic sea-lane passage;42 over flight;43 and traditional fishing rights.44 Our position that all waters within our baselines are internal waters, which are outside the jurisdiction of the 1982 LOSC,45 was abundantly made clear by the Philippine Declaration at the time of the signing of the LOSC on December 10, 1982. To reiterate, paragraphs 5, 6 and 7 of the Declaration state: 5. The Convention shall not be construed as amending in any manner any pertinent laws and Presidential decrees of Proclamation of the republic of the Philippines; the Government x x x maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippine Constitution; 6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty, independence and security; 7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines and removes straits connecting this water with the economic zone or high seas from the rights of foreign vessels to transit passage for international navigation. (Emphasis supplied.) 46

More importantly, by the ratification of the 1987 Constitution on February 2, 1987, the integrity of the Philippine state as comprising both water and land was strengthened by the proviso in its first article, viz: "The waters around, between, and connecting the islands of the [Philippine] archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (emphasis supplied) In effect, contrary to petitioners allegations, the Philippines ratification of the 1982 LOSC did not matter-of-factly open our internal waters to passage by foreign ships, either in the concept of innocent passage or archipelagic sea-lane passage, in exchange for the international communitys recognition of the Philippines as an archipelagic state. The Filipino people, by ratifying the 1987 Constitution, veritably rejected the quid pro quo petitioners take as being subsumed in that treaty. Harmonized with the Declaration and the Constitution, the designation of baselines made in RA 9522 likewise designates our internal waters, through which passage by foreign ships is not a right, but may be granted by the Philippines to foreign states but only as a dissolvable privilege. In view of the foregoing, I vote to DISMISS the Petition. PRESBITERO Associate Justice J. VELASCO, JR.

Footnotes League of Cities of the Phil. v. COMELEC, G.R. No. 176951, December 21, 2009, 608 SCRA 636.
1

Under Art. VIII, Sec. 5 of the Constitution, the Supreme Court is empowered to review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in: all cases in which the Constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Emphasis supplied.)
2 3

December 10, 1982. May 8, 1984.

Available on <http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm> (visited July 28, 2011).

5 6

Art. 48 of UNCLOS III provides that the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from the archipelagic baseline drawn in accordance with Art. 47.
21

UNCLOS, Art. 47, December 10, 1982.

J. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines A Commentary 57 (2003).
7

R.P. Lotilla, The Philippine National Territory: A Collection of Related Documents 513-517 (1995); citing Batasang Pambansa, Acts and Resolution, 6th Regular Session.
22 23

J. Bernas, supra note 7, at 22. UNCLOS III, Art. 57. June 17, 1961. September 18, 1968.

See J. Batongbacal, The Metes and Bounds of the Philippine National Territory, An International Law and Policy Perspective, Supreme Court of the Philippines, Philippine Judicial Academy Third Distinguished Lecture, Far Eastern University, June 27, 2008.
8 9

24

25

J. Bernas, supra note 7, at 10. Citing Report No. 01 of the Committee on National Territory. Citing Report No. 02 of the Committee on National Territory.

26

10

G.R. No. 159618, February 1, 2011; citing Taada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18.
27 28

11

Art. 26, Vienna Convention on the Law of Treaties, 1969.

12

J. Bernas, supra note 7, at 11-14. Id. at 14. Art. 13, Declaration of Rights and Duties of States Adopted by the International Law Commission, 1949.
29 30

13

Id. at 9; citing Speech, Session February 15, 1972, of Delegates Amanio Sorongon, et al.
14

See J. Batongbacal, supra note 8. Id.

31

The history of this deleted phrase goes back to the last clause of Art. I of the 1935 Constitution which included "all territory over which the present Government of the Philippine Islands exercises jurisdiction. See J. Bernas, supra note 7, at 14.
15 16

J. Bernas, supra note 7, at 16. Id.; citing deliberations of the February 17, 1972 Session. Id. De Leon, Philippine Constitution 62 (2011). Petition, pp. 4-5.

17

18

The Protest reads in part: "The above-mentioned Philippine Act illegally claims Huangyan Island (referred as "Bajo de Masinloc" in the Act) of China as "areas over which the Philippines likewise exercises sovereignty and jurisdiction." The Chinese Government hereby reiterates that Huangyan Island and Nansha Islands have been part of the territory of China since ancient time. The Peoples Republic of China has indisputable sovereignty over Huangyan Island and Nansha Islands and their surrounding areas. Any claim to territorial sovereignty over Huangyan Island and Nansha Islands by any other State is, therefore, null and void." Available on
32

19

20

<http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES /DEPOSIT/ communicationsredeposit/mzn69_2009_chn.pdf> (visited August 9, 2011).

33

Supra note 5.

C. Ku, The Archipelagic States Concept and Regional Stability in Southeast Asia, Case W. Res. J. Intl L., Vol. 23:463, 469; citing 1958 U.N. Conference on the Law of the Sea, Summary Records 44, Doc. A/Conf. 13/42.
34 35

Republic SUPREME Manila EN BANC

of

the

Philippines COURT

Id. G.R. No. 101083 July 30, 1993 JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO, minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners, vs. THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Hiran W. Jayewardene, The Regime of Islands in International Law, AD Dordrecht: Martinus Nijhoff Publishers, p. 103 (1990).
36 37

Id. at 112.

UNCLOS III Off. Rec., Vol. II, 264, par. 65, and also pars. 61-62 and 66; cited in B. Kwiatkowska, "The Archipelagic Regime in Practice in the Philippines and Indonesia Making or Breaking International Law?", International Journal of Estuarine and Coastal Law, Vol. 6, No. 1, pp. 6-7.
38

4 Whiteman D.G., International Law 284 (1965); quoted in C. Ku, supra note 34, at 470.
39 40

1987 Constitution, Art. I. LOSC, Arts. 52 and 54. LOSC, Art. 53, par. 2. LOSC, Art. 53, par. 2. LOSC, Art. 51. LOSC, Art. 8, par. 2.

41

42

43

44

45

Cf. B. Kwiatkowska, supra note 38; citing J.D. Ingles, "The United Nations Convention on the Law of the Sea: Implications of Philippine Ratification," 9 Philippine Yil (1983) 48-9 and 61-2; and Congress of the Philippines, First Regular Session, Senate, S. No. 232, Explanatory Note and An Act to Repeal Section 2 (concerning TS baselines around Sabah disputed with Malaysia) of the 1968 Act No. 5446.
46

Oposa Law Office for petitioners. The Solicitor General for respondents.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."
5

DAVIDE, JR., J.: In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth." The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for the protection of our environment and natural resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests." The same was filed for themselves and others who are equally concerned about the preservation of said resource but are "so numerous that it is impracticable to bring them all before the Court." The minors further asseverate that they "represent their generation as well as generations yet unborn." 4 Consequently, it is prayed for that judgment be rendered: . . . ordering defendant, his agents, representatives and other persons acting in his behalf to (1) Cancel all existing timber license agreements in the country; (2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements.

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the "greenhouse effect." Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice. This notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the course of the trial. As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations. 8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests constituting roughly 53% of the country's land mass. 9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said rainforests or four per cent (4.0%) of the country's land area. 10. More recent surveys reveal that a mere 850,000 hectares of virgin oldgrowth rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of immature and uneconomical secondary growth forests. 11. Public records reveal that the defendant's, predecessors have granted timber license agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging purposes. A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A". 12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour nighttime, Saturdays, Sundays and holidays included the Philippines will be bereft of forest resources after the end of this ensuing decade, if not earlier. 13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults. 14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands will work great damage and irreparable injury to plaintiffs especially plaintiff minors and their successors who may never see, use, benefit from and enjoy this rare and unique natural resource treasure. This act of defendant constitutes a misappropriation and/or impairment of the natural resource property he holds in trust for the benefit of plaintiff minors and succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to protection by the State in its capacity as the parens patriae. 16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country. A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B". 17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage and extreme prejudice of plaintiffs. 18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of plaintiffs, especially plaintiff minors who may be left with a country that is desertified ( sic), bare, barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been abundantly blessed with. 19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other; (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos and; (c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-being. (P.D. 1151, 6 June 1977) 20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the Constitutional policy of the State to a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient use of natural resources ( sic)." (Section 1, Article XII of the Constitution); b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV, id.); d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature." (Section 16, Article II, id.) 21. Finally, defendant's act is contrary to the highest law of humankind the natural law and violative of plaintiffs' right to self-preservation and perpetuation. 22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. 6 On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of discretion. On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said order, not only was the defendant's claim that the complaint states no cause of action against him and that it raises a political question sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental law of the land. Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but have also joined the latter in this case. 8 On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply thereto. Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151

(Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's inalienable right to selfpreservation and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment. It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question. Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be considered protected by the said clause, it is well settled that they may still be revoked by the State when the public interest so requires. On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that the question of whether logging should be permitted in the country is a political question which should be properly addressed to the executive or legislative branches of Government. They therefore assert that the petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill that would ban logging totally. As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without due process of law. Once issued, a TLA remains effective for a certain period of time usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would be violative of the requirements of due process. Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally

impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an incident to the former. This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. 10 Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come. The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition. After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows: xxx xxx xxx After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the defendant. For although we believe that plaintiffs have but the noblest of all intentions, it ( sic) fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government. The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored ( sic) by the fundamental law. 11 We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions. The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides: Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. This right unites with the right to health which is provided for in the preceding section of the same article: Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded

fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question: MR. VILLACORTA: Does this section mandate the State to provide sanctions against all forms of pollution air, water and noise pollution? MR. AZCUNA: Yes, Madam President. The right to healthful ( sic) environment necessarily carries with it the correlative duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance. 12 The said right implies, among many other things, the judicious management and conservation of the country's forests. Without such forests, the ecological or environmental balance would be irreversiby disrupted. Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other related provisions of the Constitution concerning the conservation, development and utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environment and Natural Resources "shall be the primary government agency responsible for the conservation, management, development and proper use of the country's environment and natural resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure

equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos." Section 3 thereof makes the following statement of policy: Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and the use of the country's natural resources, not only for the present generation but for future generations as well. It is also the policy of the state to recognize and apply a true value system including social and environmental cost implications relative to their utilization, development and conservation of our natural resources. This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987, 15 specifically in Section 1 thereof which reads: Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations. (2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources. The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's being subject to law and higher authority. Said section provides: Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources. Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy formulation, and have defined the powers and functions of the DENR. It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to the said policy. Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of 1987 to protect and advance the said right. A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted. A cause of action is defined as: . . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right. 18 It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself. No other

matter should be considered; furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute." After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative allegations, as well as the specific averments under the subheading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees thereof for they are indispensable parties. The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or determination by the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Commenting on this provision in his book, Philippine Political Law, Isagani A. Cruz, a distinguished member of this Court, says:
22

Mr. Justice

The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as conferred as law. The second part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or contract according to the disposition of the judiciary. In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted: In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: . . . The last ground invoked by the trial court in dismissing the complaint is the nonimpairment of contracts clause found in the Constitution. The court a quo declared that: The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored ( sic) by the fundamental law. 24 We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber license holders because he would have forever bound the Government to strictly respect the said licenses according to their terms and conditions regardless of changes in policy and the demands of public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides: . . . Provided, That when the national interest so requires, the President may amend, modify, replace or rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protested by the due process clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court held: . . . A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever dictated by public interest or public welfare as in this case. A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576). We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26 . . . Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302]. Since timber licenses are not contracts, the non-impairment clause, which reads: Sec. 10. No law impairing, the obligation of contracts shall be passed. cannot be invoked.
27

In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose, such as law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler Corp. 28 this Court stated: The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of nonimpairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare. The reason for this is emphatically set forth in Nebia vs. New York, Philippine American Life Insurance Co. vs. Auditor General, 30 to wit:
29

implead as defendants the holders or grantees of the questioned timber license agreements. No pronouncement as to costs. SO ORDERED.

Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur. Narvasa, C.J., Puno and Vitug, JJ., took no part.

quoted in

Separate Opinions

Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest. In short, the non-impairment clause must yield to the police power of the state.
31

FELICIANO, J., concurring I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is one of the most important cases decided by this Court in the last few years. The seminal principles laid down in this decision are likely to influence profoundly the direction and course of the protection and management of the environment, which of course embraces the utilization of all the natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to be saying. The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class" here involved membership in this "class" appears to embrace everyone living in the country whether now or in the future it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries'

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of right. WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint to

right of action in the field of environmental protection, as against both the public
administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may be found under any and all circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future determination in an appropriate case. The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it cannot be characterized as "specific," without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of ground water resources; loss of certain species of fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right to a balanced and healthful ecology") and 15 ("the right to health"). P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a compendious collection of more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics: (a) air quality management; (b) water quality management; (c) land use management; (d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources; (ii) wild life; (iii) forestry and soil conservation; (iv) flood control and natural calamities; (v) energy development; (vi) conservation and utilization of surface and ground water (vii) mineral resources Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate action on the part of private persons who are beneficiaries of implementation of that Code. As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here. My suggestion is simply that petitioners must, before the trial court, show a more specific legal right a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively; in other words, there are due process dimensions to this matter. The second is a broader-gauge consideration where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Section 1. . . . Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied) When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental protection and management, our courts have no claim to special technical competence and experience and professional qualification. Where no specific, operable norms and standards are shown to exist, then the policy making departments the legislative and executive departments must be given a real and effective opportunity to fashion and promulgate those norms and standards, and to implement them before the courts should intervene. My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timber companies of one or more of the specific terms and conditions of their concession agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. They may also controvert the

appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which exist. I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's decision issued today should, however, be subjected to closer examination.

# Separate Opinions FELICIANO, J., concurring I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is one of the most important cases decided by this Court in the last few years. The seminal principles laid down in this decision are likely to influence profoundly the direction and course of the protection and management of the environment, which of course embraces the utilization of all the natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to be saying. The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class" here involved membership in this "class" appears to embrace everyone living in the country whether now or in the future it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental protection, as against both the public administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may be found under any and all circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future determination in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it cannot be characterized as "specific," without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of ground water resources; loss of certain species of fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right to a balanced and healthful ecology") and 15 ("the right to health"). P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a compendious collection of more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics: (a) air quality management; (b) water quality management; (c) land use management; (d) natural resources management and conservation embracing: (i) fisheries and aquatic resources; (ii) wild life; (iii) forestry and soil conservation; (iv) flood control and natural calamities;

(v) energy development; (vi) conservation and utilization of surface and ground water (vii) mineral resources Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate action on the part of private persons who are beneficiaries of implementation of that Code. As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here. My suggestion is simply that petitioners must, before the trial court, show a more specific legal right a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss. It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively; in other words, there are due process dimensions to this matter. The second is a broader-gauge consideration where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on

the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Section 1. . . .

1 Rollo, 164; 186. 2 Id., 62-65, exclusive of annexes. 3 Under Section 12, Rule 3, Revised Rules of Court.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied) When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental protection and management, our courts have no claim to special technical competence and experience and professional qualification. Where no specific, operable norms and standards are shown to exist, then the policy making departments the legislative and executive departments must be given a real and effective opportunity to fashion and promulgate those norms and standards, and to implement them before the courts should intervene. My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timber companies of one or more of the specific terms and conditions of their concession agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. They may also controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which exist. I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's decision issued today should, however, be subjected to closer examination. # Footnotes

4 Rollo, 67. 5 Id., 74. 6 Rollo, 70-73. 7 Annex "B" of Petitions; Id., 43-44. 8 Paragraph 7, Petition, 6; Rollo, 20. 9 Webster's Third New International Dictionary, unabridged, 1986, 1508. 10 Title XIV (Environment and Natural Resources), Book IV of the Administrative Code of 1987, E.O. No. 292. 11 Annex "B" of Petition; Rollo, 43-44. 12 Record of the Constitutional Commission, vol. 4, 913. 13 For instance, the Preamble and Article XII on the National Economy and Patrimony. 14 The Reorganization Act of the Department of Environment and Natural Resources. 15 E.O. No. 292. 16 Section 1. 17 Section 2. 18 Ma-ao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947]; Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215 [1951]; Remitere vs. Vda. de Yulo, 16 SCRA 251 [1966]; Caseas vs. Rosales, 19 SCRA 462 [1967]; Virata vs. Sandiganbayan, 202 SCRA 680 [1991]; Madrona vs. Rosal, 204 SCRA 1 [1991].

19 Section 1(q), Rule 16, Revised Rules of Court. 20 Adamos vs. J.M. Tuason and Co., Inc. 25 SCRA 529 [1968]; Virata vs. Sandiganbayn, supra; Madrona vs. Rosal, supra. 21 39 SCRA 473, 479 [1971]. 22 1991 ed., 226-227. 23 180 SCRA 496, 501-502 [1989]. See also, Coseteng vs. Mitra, 187 SCRA 377 [1990]; Gonzales vs. Macaraig, 191 SCRA 452 [1990]; Llamas vs. Orbos, 202 SCRA 844 [1991]; Bengzon vs. Senate Blue Ribbon Committee, 203 SCRA 767 [1991]. 24 Rollo, 44. 25 125 SCRA 302, 325 [1983]. 26 190 SCRA 673, 684 [1990]. 27 Article III, 1987 Constitution. 28 110 Phil. 198, 203 [1960]; footnotes omitted. 29 291 U.S. 502, 523, 78 L. ed. 940, 947-949. 30 22 SCRA 135, 146-147 [1968]. 31 Ongsiako vs. Gamboa, 86 Phil. 50 [1950]; Abe vs. Foster Wheeler Corp. supra.; Phil. American Life Insurance Co. vs. Auditor General, supra.; Alalayan vs. NPC, 24 SCRA 172[1968]; Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54 [1974]; Kabiling vs. National Housing Authority, 156 SCRA 623 [1987].