REPUBLIC OF THE PHILIPPINES

SUPREME COURT SECOND

DIVISION MANILA
BISHOP PEDRO DULAY ARIGO, CESAR N.
SARINO, DR. JOSE ANTONIO N. SOCRATES
PROF. H. HARRY L. ROQUE, JR.
Petitioners,
X

X
SC. G.R. No. 185941
For:
PETITION FOR REVIEW ON
CERTIORARI UNDER RULE 45 (with
an Application for Writs of
Preliminary
Mandatory
and
Prohibitory Injunction and/or
Temporary Restraining Order)

-versusHON. EXECUTIVE SECRETARY EDUARDO R.

ERMITA, HON. ENERGY SECRETARY ANGELO
T. REYES, HON. FINANCE SECRETARY
MARGARITO B. TEVES, HON. BUDGET AND
MANAGEMENT SECRETARY ROLANDO D.
ANDAYA JR., HON. PALAWAN GOVERNOR
JOEL T. REYES, HON.
REPRESENTATIVE
ST
ANTONIO C. ALVAREZ, (1 DISTRICT), HON.
ND
REPRESENTATIVE ABRAHAM MITRA, (2
DISTRICT), RAFAEL
E. DEL
PILAR,
PRESIDENT & CEO, PNOC EXPLORATION
CORPORATION,
Respondents.
X
X

PETITION
Petitioners, by counsel, and unto this Honorable Court, respectfully state,
that:
PREFATORY STATEMENT
In this citizens suit, the issue of the equitable share in the proceeds of
1

the utilization of the development of national wealth of a local government unit, in

this

From the language of the fundamental law of the land. See CONST. (1987), art X, sec. 7, which
provides that: Local governments shall be entitled to an equitable share in the proceeds of the
utilization and

case, the Province of Palawan, by the special geographical circumstances involved, is

inextricably linked with the integrity of the national territory and the national
patrimony; the assailed presidential issuance, EO 683,

crafted based on a grievously

erroneous construction by the Chief Executive of the constitutionally-defined national

territorial limits, is by itself, patently illegal and unconstitutional

insofar as it

violates the provisions of the 1991 Local Government Code and the 1987 Constitution
guaranteeing an equitable share of the proceeds of the utilization of the development of
the national wealth of a local government unit.

The Court a quo has refused to take cognizance of the case primarily on the
grounds of prematurity and of judicial deference to joint efforts by the Executive and
the Legislative to define the countrys baselines. Petitioners contend that while it is
true that the questioned Executive Order is indeed premised on the eventual legislative
determination of the metes and bounds of the national territory pertaining to the
countrys baselines, particularly as it relates to the Kalayaan Island Group, popularly
known as the Spratlys, the very terms and conditions of EO 683 already present
justiciable issues with respect to the disbursement of public funds provided in the
presidential issuance; on this basis, the Courts cannot shirk from the duty to pass upon
the relevant legal and constitutional issues; moreover, Petitioners argue that it is as well
the constitutional duty of the Courts to examine what the 1987 Constitution itself
establishes as the metes and bounds of the national territory.

Finally, the Court a quo has faulted Petitioners for their supposed failure to provide
it with documents relevant to its adjudication of the Petition, pursuant to the provisions
of the Revised Rules of Court. A close examination of the issue however, will support
Petitioners claim that these documents are only tangential to the controversies at
hand,

development of the national wealth within their respective areas, in the manner provided by law,
including sharing the same with the inhabitants by direct means.

not to mention that this Honorable Court itself has already determined that Petitioners
are not legally in a position to secure these documents because they are not parties to it.

A. PETITIONERS

1.

Bishop Pedro Dulay Arigo current Bishop of the Archdiocese of

Puerto Princesa, Palawan, sues as a resident of Palawan, citizen and taxpayer of the
Republic of the Philippines.

2.

Petitioner Cesar N. Sarino, a former secretary of the Department of

the Interior and Local Government (DILG), sues as a citizen and taxpayer of the
Republic of the Philippines.

3.

Dr. Jose Antonio N. Socrates, a geologist and surgeon by training, sues

as a resident of Palawan, citizen and taxpayer of the Republic of the Philippines.

4.

Petitioner Prof. H. Harry L. Roque, Jr., is a lawyer and professor

of constitutional law and international law at the University of the Philippines, sues as a
citizen, taxpayer, and as an officer of the court with a sworn duty to uphold the
Constitution and the laws of the Republic of the Philippines.

5.

All the petitioners in this controversy may be served with court

processes through their counsel, the Roque and Butuyan Law Offices, with office
address at Unit
1904, Antel 2000 Corporate Center, No. 121, Valero Street, Salcedo Village, Makati
City, 1227.

B. RESPONDENTS

6.

Respondent Hon.
nd

Secretary, with office address at 2

Eduardo Ermita is the incumbent Executive

Floor, Mabini Hall, Malacaang, J.P. Laurel St.,

San Miguel, Manila, where he may be served with summons and other court processes.

7.

Respondent

Hon. Angelo T. Reyes is the incumbent Secretary of

the Department of Energy [hereinafter, DOE], with office address at Meritt Road,
Fort Bonifacio, Taguig, Metro Manila, where he may be served with summons and other
court processes.

8.

Respondent Hon. Margarito B. Teves Jr. is the incumbent Secretary

of the Department of Finance [hereinafter, DOF], with office address at Roxas Blvd.,
corner Vito Cruz St., Manila, where he may be served with summons and other court
processes.

9.

Respondent Hon. Rolando D. Andaya Jr. is the incumbent Secretary

of the Department of Budget and Management [hereinafter, DBM], with office

address at J.P Laurel St., corner Ayala St., City of Manila, where she may be served
with summons and other court processes.

10.

Respondent Hon.

Joel T. Reyes is the incumbent Governor of

the Province of Palawan, with office address at the Provincial Capitol, Puerto Princesa
City, Palawan, where he may be served with summons and other legal processes.

11.

Respondent Hon. Antonio C. Alvarez is the incumbent Representative of

the First District of the Province of Palawan. He may be served with summons and
other legal processes at the House of Representatives, House of Representatives
Complex, Constitution Hills, Quezon City 1126.

12.

Respondent Hon. Abraham Mitra is the incumbent Representative of

the Second District of the Province of Palawan. He may be served with summons and
other legal processes at the House of Representatives, House of Representatives
Complex, Constitution Hills, Quezon City 1126.

13.

Respondent Rafael E. Del Pilar is the incumbent President & CEO of

the PNOC Exploration Corporation. He may be served with summons and other legal
processes Building 1, Energy Center, Fort Bonifacio, Taguig City 1634.

STATEMENT OF MATERIAL FACTS

14.

The Republic of the Philippines, through the Department of

Energy (DOE), entered into a service contract with Shell Philippines Exploration B.V.
and Occidental Philippines, Incorporated on December 11, 1990 for the exclusive
contract of petroleum operations in the area referred to as CAMAGO-MALAMPAYA.
The exploration led to the drilling of the Camago-Malampaya natural gas reservoir
located about eighty (80) kilometers from the coastline of Palawan, in the South China
Sea.

15.

The Camago-Malampaya project, which features extensive natural

gas and oil deposits, is said to be the largest single investment in the country, projected
to generate approximately 8 to 10 billion U.S. Dollars of revenue of the Philippine
government.

16.

A dispute has arisen between the Provincial Government and the

National Government over the proportionate share of the proceeds of from the CamagoMalampaya natural gas project.

17.

The Provincial Government of Palawan asserts its claim over a

forty percent (40%) share of the proceeds, according to the provisions of the 1991
Local Government Code. Its claim for such a share is founded on its contention
that the Camago-Malampaya gas fields are located within the territorial jurisdiction of
Palawan and is thus entitled to the proceeds as provided for in the Local Government
Code. For this reason, the Provincial Government of Palawan has a pending claim in
Court against
the National Government.

18.

The National Government however contends that the Camago-

Malampaya natural gas reservoir is approximately eighty (80) kilometers from the
coastline of Palawan and is thus outside its territorial jurisdiction. Hence, the Provincial
Governments claim to entitlement to national wealth is unfounded.

19.

There have been a number of negotiations between the two parties to

end the legal tussle between them over who has which rightful share over the proceeds
of the project, while the case is still pending in court.

20.

The latest of such efforts to settle the controversy is the issuance by the

Office of the President on Dec. 1, 2007 of Executive Order No. 683 [hereinafter EO
683], which authorizes the use of fees, revenues and receipts from service contract no.
38 for the implementation of development projects for the people of Palawan.

21.

It was signed By Respondent Sec. Ermita on behalf of Mrs. Gloria

Macapagal-Arroyo.

The Provincial Government won a Petition for Declaratory Relief it filed with Branch 95 of the Regional
Trial Court of Puerto Princesa, docketed as Special Civil Action Case No. 3779. Subsequently, the DOE,
then headed by Sec. Raphael Perpetuo Lotilla, brought the case before the Supreme Court, docketed as
G.R No. 170867, where it remains pending.
3
A copy of EO 683 is attached to this pleading as ANNEX A. It was attached to the Petition filed with the
Court a quo as ANNEX A as well.

22.
that:

EO 683, among other things, provides

[T]he duly-authorized representatives of the National Government and

the Province of Palawan, with the conformity of the Representatives of
the Congressional Districts of Palawan, have agreed on a Provisional
Implementation Agreement (PIA) that would allow 50% of the
disputed
40% if the Net Government Share in the proceeds of SC 38 to be
utilized
for the immediate and effective implementation of the development
projects for the people of Palawan.

23.

1 of EO 683 provides that under the PIA, the DBM is authorized to release

funds to the implementing agencies on the endorsement and submission by the DOE
and/or the PNOC Exploration Corporation of the following documents: a) directive
by the Office of the President or written request of the Province of Palawan, the
Palawan Congressional Districts or the Highly Urbanized City of Puerto Princesa, for
the funding of designated projects ( 1.1); (b) a certification that the designated projects
fall under the investment program of the Province of Palawan, City of Puerto Princesa,
and/or the development projects identified in the development program of the National
Government or its agencies; (1.2); and (c), Bureau of Treasury certification on the
availability of funds from the 50% of the 40% share being claimed by the Province of
Palawan from the Net Government Share under SC 38.

24. It states that the DBM shall be subject to the actual collections deposited with
the National Treasury, and shall be in accordance with the Annual Fiscal Program of the
National Government.

25. Another relevant provision is found in 3 of EO 683, which provides that

the National government shall allow the Province of Palawan, the Congressional
Districts of Palawan and the City of Puerto Princesa to securitize their shares in the
50% of the disputed 40% of the Net Government Share in the proceeds of SC 38
according to the

PIA. The DOE, in consultation with the DOF, will be responsible for preparing the Net
Government Revenues for the period of to June 30, 1010 [sic].

26. The amounts released pursuant to this EO shall be without prejudice to any
on- going discussions or final judicial resolution of the legal dispute regarding the
National Governments territorial jurisdiction over the areas covered

by SC 38 in

relation to the claim of the Province of Palawan under Sec. 290 of RA 7160,
according to 4 of EO
683.

27.

EO 684 was to take effect fifteen (15) days after its publication in a

newspaper of general circulation.

28.

On Feb. 5, 2008, the Petitioners received a certified true copy of EO 683,

signed on Dec. 1, 2007 by the

Respondent Sec. Ermita by the authority of Mrs.

Gloria Macapagal-Arroyo. The effectivity clause of EO 683 provides that it shall take
effect 15 days after its publication in a general newspaper.

29. On Feb. 7, 2008 Petitioners filed with the Honorable Court of Appeals a
special civil action for certiorari under Rule 65

questioning the issuance of EO 683,

with an application for writs of preliminary mandatory and prohibitory injunction

and/or temporary restraining order. The case was docketed as CA-GR SP No. 102247.

30. On April 3,2008, Petitioners received notice of the Court a quos Resolution
dated March 18,2008 directing them to submit within five(5) days from notice copies of
the following : (1) petition for review on certiorari docketed as GR No.
170867(Republic of the Philippineset al.,

v. the Provincial Government of

Palawan) filed with this Honorable Court; (2) the decision of the Regional Trial
Court of Puerto Princesa, Palawan, Branch 95 in Special Civil Action No. 3779; (3)
Motion for Reconsideration of
4

A copy of the Petition with annexes is attached as ANNEX B.

the aforesaid RTC decision; (4) Service Contract No. 38; and (5) the Provisional
Implementation Agreement (PIA), as required under Section 1, Rule 65, in relation to
Section 3, Rule 46 of the 1997 Rules of Civil Procedure.

31. Petitioner sought an additional ten (10) days from April 8, 2008 or until April 18,
2008 to
Resolution.

comply

with

the

32. On April 18, 2008, Petitioners filed a Manifestation and Motion with the Court
a quo, informing the Court that they were unable to obtain a copy of the case records of
GR No. 1708657 in the dockets of this Honorable Court despite having made a
formal request for it and considering that they are not parties in the said case; They
however attached to the pleading certified true copies of the Decision of the Regional
Trial Court Branch 95 in Puerto Princesa, Palawan and the Motion for Reconsideration
filed by the National Government in the said case as well as a copy of Service Contract
No. 38. They further manifested the difficulty they encountered locating a copy of the
PIA mentioned in EO 386 and prayed of the Court to direct (1) the Hon.
Secretary of Energy, a Respondent in the case, to submit a copy of the Petition for
Review in GR No. 1708657, of which it was the lead Petitioner; (2) The Hon.
Executive Secretary of the Philippines, another Respondent, to submit before the Court
a quo a certified true copy of SC No. 38 (3) any of the following Respondents, namely
Hon. Joel T. Reyes, incumbent Governor of Palawan, Hon. Antonio C. Alvarez,
incumbent Representative of the First District of the Province of Palawan and Hon.
Abraham Mitra, incumbent Representative of the Second District of the Province of
Palawan, to submit to the Court a copy of the said PIA, to which they were supposed to
have been signatories.

33. On May 29, 2008, the Former Twelfth Division of the Honorable Court of
Appeals rendered a resolution in CA GR NO.102247, the dispositive portion of
which

5
6

A copy of the Resolution is attached as ANNEX C.

A copy of the Manifestation and Motion with annexes is attached as ANNEX D.

read thus: WHEREFORE, the petition is DENIED DUE COURSE and accordingly
DISMISSED.

34. On June 23, 2008, Petitioner filed a Motion praying that the Court a quo
reconsider its May 29, 2008:

35. On August 8, 2008, Petitioners filed yet another Manifestation and Motion
before the Court a quo a further submission on their failure to provide it with a copy
of the Petition in GR No. 170867 (Republic of the Philippines et al., v. Provincial
Government of Palawan), as a result of which the Court a quo, in its May
29,2008 resolution dismissing the case, faulted the Petitioners, finding that Petitioners
excuse for failing to submit the said document holds no water in light of the fact that
the Supreme Court requires pleadings, motions and other papers to be filed in no less
than eighteen (18) copies.

36. In their second Manifestation and Motion, Petitioners informed the Court a quo
that on Aug. 5, 2008, they received a copy of a Resolution dated June 23, 2008 of the
Third Division of this Honorable Court, in which the High Court resolved to note thus:
the letter dated 10 April 2008 of Romel Regalado Bagares of Roque and Butuyan Law
Offices and to DENY his request

for certified true copies of documents

enumerated therein to be submitted in a related case pending before the Court of

Appeals as the said law office is not a counsel for any party. The original
duplicate copy of the said Resolution was attached to the Manifestation and Motion.

37. On June 6, 2008, Petitioners received a copy of a Resolution of the Honorable

Court of Appeals dated December 16, 2008, denying their Motion for Reconsideration

A duplicate original copy of the Resolution dated May 29, 2008 is attached as ANNEX E.
A copy of the Motion for Reconsideration is attached as ANNEX F.
9
A copy of the second Manifestation and Motion with annexes is attached as ANNEX G.
8

dated June 23,2008. The dispositive portion read thus: WHEREFORE,

premises considered, petitioners motion for reconsideration is DENIED for lack of
10

merit.

STATEMENT OF MATERIAL DATES

38. Under Rule 45, Petitioners have 15 days from notice of the assailed judgment
or order within which to file a Petition for Review on Certiorari. As Petitioner received
the said Resolution on January 7, 2009 they had until January 22, 2009 within which to
file the Petition.

39. However, on even date, Petitioners filed with this Honorable Court a motion
asking for an additional 30 days or until Feb. 21, 2009 to file the same. At the same
time, Petitioners paid the filing and other lawful docket fees in the amount of Four
Thousand Seven Hundred and Sixty Three Pesos (P4763.00), inclusive of the fee for a
Writ of Preliminary Injunction and/or a Temporary Restraining Order, through Postal
Money Orders issued in the name of the Hon. Clerk of Court of this Honorable Court.

40. Thus, Feb. 21, 2009 being a Saturday, Petitioner had until today, Feb. 23,
2009, the next regular business day, within which to do the same.

41. Petitioners therefore are filing the instant action within the reglamentary
period provided for under Rule 45.

10

A certified true copy of the Resolution is attached as ANNEX H.

NATURE OF THE CASE

42. This Petition is an Appeal by Certiorari before the Supreme Court under Rule
45 of the Revised Rules of Court, questioning the resolution of the Court a quo
that dismissed the special civil action for certiorari under Rule 65 filed against
the Respondents in the instant case. On account of the nature of this petition and the
causes of action involved, Petitioners respectfully ask of this Honorable Court that the
bond for a writ of preliminary mandatory and prohibitory injunction and/or temporary
restraining order be waived.

STATEMENT OF THE ISSUES

I.

WHETHER OR NOT THE HONORABLE COURT A QUO GRAVELY ERRED UNDER LAW
WHEN IT HELD THAT THERE IS NO ACTUAL CASE AND CONTROVERSY IN THE
PROCEEDING A QUO.

II. WHETHER

OR NOT THE HONORABLE COURT A QUO GRAVELY ERRED UNDER LAW

IN DISMISSING THE PETITION ON THE GROUND OF PREMATURITY AND DEFERRING TO
ON- GOING JOINT EFFORTS OF THE BOTH THE LEGISLATURE AND THE EXECUTIVE TO
REDEFINE THE COUNTRYS BASELINES.

III. WHETHER

OR NOT THE HONORABLE COURT A QUO GRAVELY ERRED UNDER LAW

IN DISMISSING THE PETITION FOR THE ALLEGED FAILURE OF PETITIONERS TO
PROVIDE IT WITH A COPY OF THE PROVISIONAL INTERIM AGREEMENT (PIA) THAT
GAVE RISE TO THE ISSUANCE OF EO 683, PURSUANT TO RULE 65 1 IN RELATION
TO RULE 46 3
OF THE REVISED RULES OF
COURT.

IV. WHETHER OR NOT THE HONORABLE COURT A QUO ERRED UNDER LAW IN
DISMISSING THE PETITION FOR THE ALLEGED FAILURE OF PETITIONERS TO PROVIDE
IT WITH CERTAIN DOCUMENTS PERTAINING TO GR NO. 170867, PURSUANT TO RULE 65
1
IN RELATION TO
COURT.

RULE 46 3

OF THE

REVISED RULES

OF

SUBMISSIONS

I. THE HONORABLE COURT A QUO GRAVELY

ERRED UNDER LAW WHEN IT HELD THAT

THERE IS NO ACTUAL CASE AND CONTROVERSY IN THE PROCEEDING A QUO,
CONSIDERING THAT THE ISSUANCE OF QUESTIONED EXECUTIVE ORDER (EO)

683
ALREADY INVOLVES STATUTORY CONSTITUTIONAL AND JURISPRUDENTIAL QUESTIONS
THAT ARE RIPE FOR ADJUDICATION, NAMELY, THE DIBURSEMENT OF PUBLIC FUNDS IN
VIOLATION OF THE CONSTITUTIONAL PROVISION ON REALIGNMENT OF PUBLIC FUNDS,
THE PROVISIONS OF THE 1991 LOCAL GOVERNMENT CODE ON THE EQUITABLE
SHARING OF THE INTERNAL REVENUE ALLOTMENT (IRA) BETWEEN THE NATIONAL
GOVERNMENT AND THE LOCAL GOVERNMENT UNITS, AND THE UNLAWFUL
WITHOLDING OF THE SAID ALLOTMENT , ALL OF WHICH THE COURTS HAVE A
CONSTITUTIONAL DUTY TO RESOLVE.

II. THE HONORABLE COURT A QUO GRAVELY ERRED UNDER LAW IN DISMISSING THE
PETITION ON THE GROUND OF PREMATURITY AND OF JUDICIAL DEFERENCE TO
CO- EQUAL BRANCHES OF GOVERNMENT NOW DELIBERATING ON THE COUNTRYS
BASELINES, CONSIDERING THAT (1) THE HONORABLE COURT A QUO HAS
A
CONSTITUTIONAL DUTY TO INTERPRET THE CONSTITUTIONAL PROVISIONS
DEFINING THE NATIONAL TERRITORY
AND (2) INDEPENDENT OF THE FINAL
ADJUDICATION OF THE DISPUTE BETWEEN THE PROVINCE OF PALAWAN AND THE
NATIONAL GOVERNMENT PENDING BEFORE THE THIRD DIVISION OF THIS HONORABLE
COURT IN GR NO. 170867 (REPUBLIC OF THE PHILIPPINES ETAL., V. THE PROVINCIAL
GOVERNMENT OF PALAWAN), THE TERMS AND CONDITIONS OF E.O. 683 ARE
INDUBITABLY ALREADY A
VIOLATION OF CONSTITUTION, STATUTE AND
JURISPRUDENCE.

III. THE HONORABLE COURT A QUO GRAVELY ERRED UNDER LAW IN DISMISSING THE
PETITION FOR THE ALLEGED FAILURE OF PETITIONERS TO PROVIDE IT WITH A COPY
OF THE PROVISIONAL INTERIM AGREEMENT (PIA), CONSIDERING THAT THE TERMS
AND PROVISIONS OF EO 683 EMBODY ALL THE TERMS AND PROVISIONS OF THE
ASSAILED PIA. THUS WHAT IS BEING CHALLENGED IS THE QUESTIONED ORDER,
WHICH WAS
DRAFTED AND ISSUED TO EXPRESS IN OFFICIAL TERMS AND TO PUT INTO LEGAL EFFECT
THE PIAS OWN TERMS AND CONDITIONS; REQUIRING PETITIONERS TO SUBMIT A COPY
OF THE PIA, DRAFTED AND SIGNED IN THE FIRST PLACE UNDER CONDITIONS
OF SECRECY, WOULD SIMPLY BE SUPERFLOUS, ACCORDING TO THE RULES COURT.

IV. THE HONORABLE COURT A QUO

ERRED UNDER LAW IN DISMISSING THE PETITION

FOR THE ALLEGED FAILURE OF PETITIONERS TO PROVIDE IT WITH CERTAIN
DOCUMENTS PERTAINING TO GR NO. 170867, CONSIDERING THAT UNDER THE
RULES OF COURT THESE ARE NOT REALLY NECESSARY - AS THEY ARE
ONLY
TANGENTIAL TO THE RESOLUTION OF THE CASE BY THE COURT A QUO, NOT TO
MENTION THAT PETITIONERS ARE NOT EVEN PARTIES TO THE CASE OF WHICH THE
SAME DOCUMENTS ARE PART, AS THIS HONORABLE COURT ITSELF HAS ALREADY
DETERMINED.

DISCUSSION

I.
THE HONORABLE COURT

A QUO
GRAVELY ERRED UNDER LAW
WHEN IT HELD THAT THERE IS NO
ACTUAL CASE AND CONTROVERSY
IN THE PROCEEDING A QUO,
CONSIDERING THAT THE ISSUANCE
OF
QUESTIONED
EXECUTIVE
ORDER (EO) 683 ALREADY
INVOLVES
STATUTORY
CONSTITUTIONAL
AND
JURISPRUDENTIAL
QUESTIONS
THAT
ARE
RIPE
FOR
ADJUDICATION,
NAMELY,
THE
DIBURSEMENT OF PUBLIC FUNDS
IN
VIOLATION
OF
THE
CONSTITUTIONAL PROVISION ON
REALIGNMENT OF PUBLIC FUNDS,
THE PROVISIONS OF THE 1991
LOCAL GOVERNMENT CODE ON
THE EQUITABLE SHARING OF THE
INTERNAL REVENUE ALLOTMENT
(IRA)
BETWEEN
THE
NATIONAL
GOVERNMENT AND THE LOCAL
GOVERNMENT UNITS, AND THE
UNLAWFUL WITHOLDING OF THE
SAID ALLOTMENT
THE
COURTS
CONSTITUTIONAL
RESOLVE.

43.

ALL OF WHICH
HAVE
A
TO
DUTY

Contrary to the Court a quos contention, the instant Petition has not

been prematurely filed and that the issues presented before it are not yet ripe for
adjudication.

While it may well be true that the interim undertaking between the National
Government and the Province of Palawan is contingent on the final adjudication of
G.R. No. 170867, it is undeniable that in the meanwhile that no such adjudication has
happened disbursements of public funds will ensue or are already taking place in
violation of Statute, Constitution and jurisprudence.

A. Violations of the 1991 Local Government Code

44.

The Court a quo should have considered that

EO 683, among

other things, provides that:

[T]he duly-authorized representatives of the National Government and
the Province of Palawan, with the conformity of the Representatives of
the Congressional Districts of Palawan, have agreed on a Provisional
Implementation Agreement (PIA) that would allow 50% of the
disputed
40% if the Net Government Share in the proceeds of SC 38 to be
utilized
for the immediate and effective implementation of the development
projects for the people of Palawan.

45. Thus, even if the case is pending, both parties have agreed that they
will nevertheless allow the disbursement of public funds according to an agreed
formula. Moreover, such disbursement will proceed independent of and regardless of
what the outcome will be of the Supreme Courts adjudication of their respective
territorial claims over the Malampaya gas and oil wells. It is for this reason that
Petitioners contend that the certiorari proceeding a quo could

have been given due

course independent of the Supreme Courts adjudication of such territorial conflict

between the National Government and the Province of Palawan.

46.

1 of EO 683 provides that under the PIA, the DBM is authorized to release

funds to the implementing agencies on the endorsement and submission by the DOE
and/or the PNOC Exploration Corporation of the following documents: a) directive
by the Office of the President or written request of the Province of Palawan, the
Palawan Congressional Districts or the Highly Urbanized City of Puerto Princesa, for
the funding of designated projects ( 1.1); (b) a certification that the designated projects
fall under the investment program of the Province of Palawan, City of Puerto Princesa,
and/or the development projects identified in the development program of the National
Government or its agencies; (1.2); and (c), Bureau of Treasury certification on the
availability of

funds from the 50% of the 40% share being claimed by the Province of Palawan from the
Net Government Share under SC 38.

47. It states that the DBM shall be subject to the actual collections deposited with
the National Treasury, and shall be in accordance with the Annual Fiscal Program of the
National Government.

48. Further

3 of EO 683, provides that the National government shall allow

the Province of Palawan, the Congressional Districts of Palawan and the City of Puerto
Princesa to securitize their shares in the 50% of the disputed 40% of the Net
Government Share in the proceeds of SC 38 according to the PIA.

The DOE, in

consultation with the DOF, will be responsible for preparing the Net Government
Revenues for the period of to June 30, 1010 [sic].

49. The amounts released pursuant to this EO shall be without prejudice to any
on- going discussions or final judicial resolution of the legal dispute regarding the
National Governments territorial jurisdiction over the areas covered

by SC 38 in

relation to the claim of the Province of Palawan under Sec. 290 of RA 7160,
according to 4 of EO
683.

50. Undeniably, EO 683 is now in effect, having already been published in a

newspaper of general circulation a long time ago, notwithstanding the fact that
requisites embodied in constitution, statute and jurisprudence in respect of
disbursements arising from the share of the local government unit in the proceeds of the
utilization of its natural resources have not been met.

51. Obviously, these requisites were not observed in the case of Palawan, as it
was not in Pimentel v. Aguirre a clear showing of a grave abuse of discretion
amounting to an excess of jurisdiction.

52. For the provisions of the law cannot be bargained away by the

PIA as

embodied in EO 683; to do so would not only violate the Local Government Code,
but above all, the Constitution, which provisions on the equitable sharing of resources
between the National Government and the Local Government Unit it is also giving flesh
to.

53.

First of all, neither Respondent Reyes nor Respondents Alvarez and

Mitra have the authority to sign on behalf of the other Local Government Units of
Palawan the mayors, as well as the barangay captains.

In fact the cities,

municipalities, and barangays have a bigger share than the Provincial Government in the
allocation of revenues, as 292 of the Local Government Code says. (The
city/municipality gets 45 % and the barangay gets 35% or a combined share of 80
percent as against the Provinces share of only 20 percent). They cannot sign the PIA
as if they are the sole recipients of the proceeds of the utilization of the Malampaya Oil
and Gas Reserves.

54.

In fact, the PIA removes from the picture the other LGUs who have

a rightful stake in such proceeds because here the Province of Palawan claims for itself
a much-reduced share of 50 percent of the 40 percent share mandated by the law
as belonging to the LGUs, granting the other half to the National Government.

55.

Secondly, the PIA violates 290 of the 1991 Local Government

Code. The interim agreement only talks of net proceeds supposedly of the utilization
of the Malampaya oil and gas resources while the law provides that the share of the
LGU is based on gross collection. Hence the interim agreement reduces the rightful
share of the LGUs in two ways: one, by making net proceeds as the basis of the
sharing, and two, by cutting down the equitable share of the LGUs in such proceeds by
half, which share is

now to be claimed exclusively by the Province of Palawan, without due consideration

for the cities, municipalities and barangays concerned.

56.

This

is

patently illegal,

and

in contravention of the

1991

Local Government Code. In the first place this provision of the law is not
subject to compromise. This interim agreement is an unequivocal violation of the
intention of the
1991 Local Government Code to provide the local government with greater power
over its natural resources.

57.

Thirdly, it should be remembered that 286 of the Local Government

Code is followed by a clause that says: Nothing in this Chapter shall be understood to
diminish the share of local government units under existing laws. Now this provision
is important because it goes against all the promises the national government is making
through the PIA. Under the law, the proceeds of the utilization of natural resources is
to be directly released to each local government unit, without need of any further action.

58.

The problem is that the PIA makes it clear that any fund allocation

for any project must first be approved by the Department of Energy and/or the
PNOC Exploration Corporation as provided for in 1 of EO 683. Moreover, these
projects are made subject to the actual collections deposited with the National
Treasury.

59.

Fourthly, the PIA provides that only those projects identified by

the Office of the President, or the Province of Palawan, or the Palawan

Congressional Districts, or the Highly Urbanized City of Puerto Princesa may be
funded. Now, this goes against the intent of the 1991 Local Government Code to grant
LGUs autonomy and to decentralize power. How the money from its equitable share
in the utilization of its natural resources is to be spent is a prerogative of the LGUs
and the national government has no business fiddling with it, subject only to the terms
and conditions found in 294 of the 1991 Local Government Code.

60.

Fifthly, the PIA allows the securitization of the shares of the LGUs

and the National Government in the utilization of the Malampaya Oil and Gas
resources. The National Government cannot securitize what it does not own legally.
Neither can the Province of Palawan securitize what it does not fully own.
Securitization also brings with it a host of complex issues, considering that it will
necessarily draw the participation of other parties corporations primarily.

B. Vio lat ions of applicable jurisprudence on the Internat ional Revenue Allotment (IRA)

61.

The most recent jurisprudence upholds their right under law to the

proceeds of the utilization of national wealth within their boundaries. In Pimentel v.

Aguirre, this Honorable Court ruled that the shares of the local government unit from
national wealth in the national internal revenue shall be automatically released. The
High Court said that by this provision in the Local Government Code providing
for such release, it uses the word shall and as a rule, it is a word of command that
must be given
11

a compulsory meaning. The ponente, Justice Panganiban, thus said:

The Constitution vests the President with the power of

supervision, not control, over local government units (LGUs).
Such power enables him to see to it that LGUs and their officials
execute their tasks in accordance with law. While he may issue
advisories and seek their cooperation in solving economic
difficulties, he cannot prevent them from performing their tasks
and using available resources to achieve their goals. He may not
withhold or alter any authority or power given them by the law.
Thus, the withholding of a portion of internal revenue allotments
legally due them cannot be
directed
by
administrative
12
fiat.

62.

In the same case, the Supreme Court said that if at all there arises

a situation where the national government must, of necessity, reduce the share of
local

11

G.R. No. 132988. July 19, 2000.

Id.

12

government units, the law itself sets certain procedures and limits that must be
13

followed. Citing from the Code itself, the ponente thus said:
There are therefore several requisites before the President
may interfere in local fiscal matters: (1) an unmanageable public
sector deficit of the national government; (2) consultations with
the presiding officers of the Senate and the House of
Representatives and the presidents of the various local leagues;
and (3) the corresponding recommendation of the secretaries
of the Department of Finance, Interior and Local
Government, and Budget and Management. Furthermore, any
adjustment in the allotment shall in no case be less than thirty
percent (30%) of the collection of national internal revenue taxes
of the third fiscal year preceding the current one.
C. Vio lat ions of the Const itution itself

63. That there is an actual case and controversy in this case is established by the
fact that Respondent Sec. Ermita clearly overstepped constitutional bounds when he
issued the EO 683 a grave abuse of discretion amounting to a lack of jurisdiction
considering that such issuance is a violation of the Constitutional Provision on the
equitable sharing of resources between the National Government and the Local
Government Unit.

64. In fact, the money supposedly coming from the Net Share of the
National Government for disbursement according to

EO 683 came from the 40-

percent share of the province of Palawan from the proceeds of the Camago-Malampaya
oil and gas field, which is a realignment of funds not allowed by the 1987 Charter;

65. Moreover, the Respondent Sec. Ermita committed a grave abuse of discretion
amounting to a lack of jurisdiction when he authorized the Secretary of DOE and/or the
PNOC Exploration Corporation to determine to which implementing agencies funds
may

13

. . . [I]n the event the national government incurs an unmanaged public sector deficit, the President of
the Philippines is hereby authorized, upon the recommendation of [the] Secretary of Finance, Secretary of
the Interior and Local Government and Secretary of Budget and Management, and subject to consultation
with the presiding officers of both Houses of Congress and the presidents of the liga, to make the
necessary adjustments in the internal revenue allotment of local government units but in no case shall the
allotment be less than thirty percent (30%) of the collection of national internal revenue taxes of the third
fiscal year preceding the current fiscal year . . . See also Rep. Act. No. 7160 (1991) Sec. 284.

be released under the PIA.

For in usual budgeting procedures of Congress, the

share from the National Wealth is included in the appropriation for Allocation to
Local Government Units which is classified as a mandatory obligation of the National
Government to the LGU in accordance with Section 290 of Republic Act No. 7160,
otherwise known as the Local Government Code.

66. Thus EO 683 is nothing more than a realignment of funds carried out in
violation of the Constitution.

14

For in usual budgeting procedures of Congress, the

share from the National Wealth is included in the appropriation for Allocation to Local
Government Units which is classified as a mandatory obligation of the National
Government to the LGU and automatically released to the LGU in accordance with
Section 290 of Republic Act No. 7160, otherwise known as the Local Government
15

Code.

67. What is particularly onerous and illegal about the PIA is that it practically
grants the Representatives from Palawans two congressional districts a huge pork
barrel fund one that is arguably even larger than the total allocation of pork barrel for
all members of the House of Congress appropriations, who each receive around P65
million a year under the annual Congressional Priority Development Assistance Fund
(PDAF).

68. Under the terms of EO 683, the money will be coursed through the DBM,
upon the recommendation of the DOE and/or the PNOC Exploration Corporation,
which is a violation of the Constitutional Provision on the equitable sharing of
resources between the National Government and the Local Government Unit.

69.

The Constitution makes it mandatory for the government to remit the

equitable share of the LGU in the utilization of natural resources. As discussed above,
it is made through the appropriation for Allocation to Local Government Units
by Congress.

14
15

See 1987 CONST Art.VI 5.

See 1987 CONST, Art. X, 6,

Here, by virtue of a mere Executive Order, funds are realigned, in violation of

the Constitution, and of the principle of separation of powers. Only Congress has that
power. Not the Executive Secretary, not the DOE, not the DOF, not the DBM, much
less, the PNOC Exploration Corporation. The issues presented by Petitioners in the
instant case are clearly ripe for judicial adjudication.

70. It is clear that these terms and provisions of EO 683 may be adjudicated upon
by this Honorable Court without reference to the conflicting territorial claims made by
the National Government and the Province of Palawan. In fact, Petitioners intent in
making reference to the pending case before the Supreme Court between the two
entities is merely to provide a historical backdrop to the issuance of the
questioned Executive Order.

71. It is for this reason that in the instant Petition, when it was filed, only had
a certified true copy of EO 386 as an attachment.

72. This Honorable Courts power of judicial review involves the power to declare
as unconstitutional not only a treaty, international or executive agreement, presidential
decree, proclamation, order, instruction, ordinance or regulation but also the
application, or operation of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations.

16

73. The presidential issuance in question clearly involves constitutional issues

that are within the power of this Honorable Court to adjudicate.

74. Moreover, it is already law, thus giving rise to the presumption that its terms
and conditions providing for the questioned disbursement of public funds are already
being

16

See 1987 CONST Art VIII, 4 (2).

implemented, as such terms and conditions clearly provide for their

immediate implementation.

75. For which reason, it would not be specious to say that this governmental
act being challenged EO 683 in fact, already had a direct adverse effect on
Petitioners who are suing as citizens exercising a public right under the constitution. As
held in Pascual v. Executive Secretary, there are many decisions nullifying, at the
instance of taxpayers, laws providing for the disbursement of public funds, upon the
theory that the
expenditure of public funds, by an officer of the State for the purpose of
administering an unconstitutional act constitutes a misapplication of such funds,
which may be
enjoined at the request of the taxpayer.

17

23

17

Mabanag v. Lopez-Vito, 78 Phil. 1(1947).

24

II.
THE HONORABLE COURT A QUO
GRAVELY ERRED UNDER LAW IN
DISMISSING THE PETITION ON THE
GROUND OF PREMATURITY AND OF
JUDICIAL DEFERENCE TO COEQUAL
BRANCHES
OF
GOVERNMENT
NOW
DELIBERATING
ON
THE
COUNTRYS
BASELINES,
CONSIDERING
THAT
(1) THE

HONORABLE COURT

A QUO HAS A
CONSTITUTIONAL
DUTY
TO
INTERPRET THE CONSTITUTIONAL
PROVISIONS
DEFINING
THE
NATIONAL TERRITORY AND (2)
INDEPENDENT OF THE FINAL
ADJUDICATION OF THE DISPUTE
BETWEEN THE PROVINCE OF
PALAWAN AND THE NATIONAL
GOVERNMENT PENDING BEFORE
THE THIRD DIVISION OF THIS
HONORABLE COURT IN GR NO.
170867 (REPUBLIC OF THE
PHILIPPINES ETAL., V. THE
PROVINCIAL GOVERNMENT OF
PALAWAN), THE TERMS AND
CONDITIONS OF E.O. 683 ARE
INDUBITABLY
ALREADY
A
VIOLATION OF CONSTITUTION,
STATUTE AND JURISPRUDENCE.

76. The Court a quo, in dismissing the case, took judicial notice of the ongoing efforts of both the legislative and executive departments to arrive at a common
position in redefining the countrys baseline.

18

It therefore deferred to the

legislative-executive rapproachment on the baseline issue, claiming that it concerns

policy determination
that cannot be made subject to collateral adjudication.

18

Resolution dated May 29, 2008, at 6.

19

19

Id.

77. Yet the Court a quo itself acknowledges that in fact, there is an existing law
defining the countrys baseline, namely, Republic Act No. 3046, as amended by
20

Republic Act No. 5446.

78. That law defining the countrys baselines still stands as law, until revoked
or amended. The on-going efforts of both legislative and executive departments to
refine or otherwise revise that law remain nothing more than that efforts, but not law.

79. With due respect, Petitioners direct to the attention of this Honorable Court
the fact that Article 1 the 1987 Constitution itself defines what the metes and bounds of
the national territory are:
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.

80. For this reason, it would be in disregard of this duty under the Constitution if
this Honorable Court shirks from the issues presented by herein Petitioners before it
merely on the ground that the legislature and the executive are as yet trying to redefine
the countrys baselines, considering that such efforts have not yet been translated into
law so that the countrys existing law on baselines remain good law, not to mention that
in the first place, the Constitution itself defines the extent of the national territory.

81. There is one very important issue at the heart of this argument, and it is the
fact that the issuance of EO 683 manifests a serious lack of understanding on the part
of the

20

Id., at fn. 14.

Executive Secretary of its implications on Philippines claims both to the nature and
the expanse of the national territory under the UNCLOS III regime.

21

82. This is because the province of Palawan is the strong and secure anchor on
which the Philippine claim to an Extended Continental Shelf (hereinafter, ECS)
under the regime of the Law of the Sea stands. Ultimately, such a policy dismembers
the national territory because it cuts away the Philippine claim to an ECS as defined
under the United Nation Conference on the Law of the Sea. The Conference, after a
series of meetings in
1958, 1960, and 1973, adopted in 1982 what is now known as UNCLOS III,
which entered into force on November 16, 1994. The Philippines is party to the treaty.

22

83. UNCLOS III entitles coastal States like the Philippines to claim a
continental shelf of up to 200 nautical miles (n.m.) from its baselines. As Art. 76 (1) of
UNCLOS III provides:
The continental shelf of a coastal State comprises the seabed and
subsoil of the submarine areas that extend beyond its territorial
sea throughout the natural prolongation of its land territory to
the outer edge of the continental margin, or to a distance of 200
nautical miles from the baselines from which the breadth of the
territorial sea is measured where the outer edge of the continental
margin does not extend up to that distance. [emphasis supplied].
84. This 200 n.m offshore defines the Exclusive Economic Zone [hereinafter
EEZ] of the coastal state. In some cases and under certain conditions however,
UNCLOS entitles a coastal state up to 350 n.m. of EEZ, or an additional 150 n.m.
more, which obtains where the continental shelf or a portion of it is beyond the 200
n.m. limit, subject to the delimitation of the neighboring states claim to a similar
continental shelf regime.

21

23

The full text of the multi-lateral treaty may be accessed at the official website found at
<http://www.un .org/Depts/los/conven tion_agreements/texts/un clos/UNCLOS-TOC.h tm> last visited,
June
10, 2004. Under the Revised Rules on Evidence, mandatory judicial notice is given to the law
of nations. See RULE OF COURT, Rule 129, 1, 1997 Revised Rules of Court.

22

The Philippines ratified the treaty on May 8, 1984; for information on the status of the treaty as to the
various ratifications made, see <h ttp://www.un.org/Depts/los/referen ce_files/status2003.pdf> last
visited, June 10, 2004.
23
The relevant provisions of Art. 76, para. 4, et seq., provides thus:

85. Clearly, the Camago-Malampaya oil and has fields, from the UNCLOS
III definition, fall within the area of the continental shelf of Palawan as the natural
prolongation of its land territory. It must be stressed that, contrary to the contention
of the Chief Executive and her agents, the oil and gas in the area are not found in the
waters off Palawan but in the continental shelf of Palawan.

86. In other words, these mineral resources are drawn up by pipes from the
deep bowels the subsoil, that is

of the continental shelf. To any scientist or

lawyer well4. (a) For the purposes of this Convention, the coastal State shall establish the outer
edge of the continental margin wherever the margin extends beyond 200 nautical
miles from the baselines from which the breadth of the territorial sea is measured, by
either:
(i)

a line delineated in accordance with paragraph 7 by reference to the

outermost fixed points at each of which the thickness of sedimentary
rocks is at least 1 per cent of the shortest distance from such point
to the foot of the continental slope; or

(ii)

a line delineated in accordance with paragraph 7 by reference to fixed

points not more than 60 nautical miles from the foot of the
continental slope.

(b) In the absence of evidence to the contrary, the foot of the continental slope shall
be determined as the point of maximum change in the gradient at its base.
5. The fixed points comprising the line of the outer limits of the continental shelf on the
seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not
exceed
350 nautical miles from the baselines from which the breadth of the territorial sea
is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which
is a line connecting the depth of 2,500 metres.
6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit
of the continental shelf shall not exceed 350 nautical miles from the baselines from
which the breadth of the territorial sea is measured. This paragraph does not apply to
submarine elevations that are natural components of the continental margin, such as
its plateaux, rises, caps, banks and spurs.
7. The coastal State shall delineate the outer limits of its continental shelf, where
that shelf extends beyond 200 nautical miles from the baselines from which the breadth
of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in
length, connecting fixed points, defined by coordinates of latitude and longitude.
8. Information on the limits of the continental shelf beyond 200 nautical miles from
the baselines from which the breadth of the territorial sea is measured shall be
submitted by the coastal State to the Commission on the Limits of the Continental Shelf
set up under Annex II on the basis of equitable geographical representation. The
Commission shall make recommendations to coastal States on matters related to the
establishment of the outer limits of their continental shelf. The limits of the shelf
established by a coastal State on the basis of these recommendations shall be final and
binding.
9. The coastal State shall deposit with the Secretary-General of the United Nations
charts and relevant information, including geodetic data, permanently describing the

outer limits of its continental shelf. The Secretary-General shall give due publicity
thereto.
10. The provisions of this article are without prejudice to the question of delimitation of
the continental shelf between States with opposite or adjacent coasts.

versed in the language of UNCLOS III, it is simply preposterous to say that the
Camago- Malampaya fields are outside Palawan, or that the oil and gas reserves are
drawn from waters 80 kilometers off its shores. The mineral resources, in fact, are
mined from the subsoil of the submarine areas that extend beyond its territorial
sea throughout the natural prolongation of its land territory, to borrow in part from
Art. 76(1) of UNCLOS III.

87. Indeed, UNCLOS III acknowledges the inherent right of every coastal state to
its Continental Shelf but requires that a clear delimitation of the limits of such right in
cases where other states make a similar claim;

24

this delimitation is also important

to the determination of where the international sea-bed, which is considered the

common heritage of mankind, starts.

88. The deadline for the submission of the limits of the continental shelf has been
set on or before May 13, 2009, or ten years after the Scientific and Technical Guidelines
of the Commission on the Limits of the Continental Shelf (CLCS) has been adopted.

89. The delineation of the limits of its continental shelf will assure the countrys
sovereign rights over the petroleum, natural gas and other resources found in the area.
In other words, an ECS which extends up to 350 nautical miles from the baselines
means a much expanded claim to rich natural resources in the region and a greater
access to these resources. A textbook by two noted experts on the Law of the Sea
regime explains just how important the issue of delimitating a coastal states continental
shelf is:
Physically, the seabed adjacent to a physical coast is usually considered
to consist of three separate sectionsFirst, the section that slopes
down gradually from the low-water mark to the depth, averaging
about 130
24

Art. 83 of the UNCLOS III provides that delimitation between opposite and adjacent states shall be
effected by agreement on the basis of international lawin order to achieve an equitable solution. See
also the ICJ ruling in the 1982 Tunisia/Libya Continental Shelf Case, where the international tribunal

ruled that under customary international law, the satisfaction of equitable principles is, in the
delimitation process, of cardinal importance. 1982 ICJ Rep. 18.

metres, at which the angle of declination increases markedly: this is the

continental shelf proper. Second, the section bordering the shelf
and having the steeper slope, going down to around 1,200 to 2,500
metres: this is known as the continental slope. Third, there is in many
locations an area beyond the slope where the sea bed falls away more
gradually and is composed mainly of sediments washed down from the
continents. This is called the continental rise, and typically descends to
a depth of around
3,500 to 5,500 metres. Together these three sections from the
continental
margin, which constitutes about one-fifth of the sea
floor.
In many places, the continental margin and especially the
continental shelf is rich in natural resources. Most important are
the extensive oil and gas reserves, which represent something like
ninety percent of the total value of minerals taken from the
sea bed. Offshore exploitation of oil and gas on a commercial
scale did not begin shortly before the Second World War, but it
expanded rapidly as a result of developments in technology and
increasing demand. By the mid1990s offshore oil and gas
production accounted for around one-third of the total world
production; and some estimated that around 70 percent of the
worlds undiscovered reserves lie offshore. It is expected that
by 2005 there will be around 4, 100 offshore oil and gas fields
on stream, and almost
9,000 offshore platforms associated with them. The main
concentrations of production facilities lie in four areas: north-west
Europe, West Africa, south-east Asia and north AmericaThere
has also been interest in placer deposits of heavy minerals
containing metals such as tin, titanium, chromium and
zirconium.
As well as mineral resources, there are also important
fisheries
on the continental shelf for sedentary species, such as oysters and
clams, and lobsters and crabs (although the classification of
the two latter organisms as sedentary is controversial)
The existence of such a rich diversity of valuable resources makes
the legal status of the continental shelf an important
practical
25
question.

90. Worth noting is the fact that for several years now, a joint project on the
Delimitation of the Outer Limits of the Philippine Continental Shelf has been doing just
that: fortifying the Philippine claim to an extended continental shelf. The project aims
to gather, generate, process, and assess bathymetrical, geophysical, and geological data
as well as prepare the legal and political arguments necessary to make the Philippines
claim to such an extended continental shelf before the United Nations. Spearheaded by
the UP Law Center Institute of International Legal Studies (UPLAW-IILS), it has for
participants the UP National Institute of Geological Sciences (UP-NIGS), the Coast and

Geodetic Survey Division of the National Mapping Resource Information Agency

(NAMRIA) of
25

rd

RR CHURCHILL & A.V. LOWE, THE LAW OF THE SEA 141-142 (3 ed., 1999). [British spelling has
been retained in the passage quoted].

the Department of the Environment and Natural Resources (DENR), Mines and
Geosciences Bureau of the DENR, and the Energy Resource Development Bureau of
the Department of Energy (DoE). The project, estimated to cost close to P1.9 billion
over a five year-period (1993-1997), has identified three areas where the possible
extended continental shelf exists: (i) the KIG; (ii) the Benham Rise and (iii) the
Scarborough Shoal Area.

91. Filipino experts however, look at the KIG as the most promising

26

with

respect to petroleum and natural gas. That hydrocarbon deposits abound in the area is
indicated by seven drill holes in the Reed Bank and other drill holes in Western
Palawan, including the discovery wells in Nido, Malampaya, and Cadlao, although no
drill holes have yet to be made at the KIG itself.

27

The main argument is that the KIG

is a continuation of the Palawan landmass, or a natural prolongation of the Palawan

continental shelf.

The geology underneath Palawan, the studies so far show, are

identical to that found underneath the KIG.

28

92. Indeed, this is not only a legal argument but also a scientific one,
because Filipino experts who have studied the area argue that the best way to claim an
ECS in the area is to consider the Malampaya fields and the Kalayaan Island Group
(otherwise popularly known as the Spratlys)

as a unified

extension of the

continental shelf of Palawan.

93. Hence, the Philippine claim to sovereignty to the entire KIG region, as well as
to the Camago-Malampaya fields, cannot stand on any solid footing without
acknowledging
26

Dr. Teodoro M. Santos, A Strategy for Delineating the Philippine Continental Shelf: An Abstract,
edited version of a paper presented at a round table discussion on the Delineation of the Extended
Philippine Continental Shelf, August 30, 2001 at the UPLC-IILS, at 3. Dr. Santos is a senior geologist
at the UP- NIGS. Dr. Santos is one of the scientific experts working on the inter-disciplinary,
inter-agency delimitation project and the leading proponent of the campaign for an ECS.
27
Id., at 6.
28
Dr. Santos, supra note 1, at 3. Dr. Santos, in the same paper, also reports : One of the most important
documents that tend to indicate that the KIG and Palawan are an integral part of the same fragment of
continental crust was the geologic map of the South China Sea made by a French group of geologists.

This map, in proper scale and detail, and supported by direct geomorphical evidence, can be used to
support the Philippines claim to an extended continental shelf in the area id., at 9-10.

the existence of the Continental Shelf of Palawan, and without advancing it before
the proper UN body, the Commission on the Limits of the Continental Shelf.

94. The case may well be understood through this syllogism: to say that the
Camago- Malampaya fields are not part of Palawan is to say that the Philippines
does not have any claim to an ECS, or much less, to an inner continental shelf that is
all of 200 n.m. extending seaward. It is in effect, to deny the existence of a continental
shelf appurtenant to the Province of Palawan; But this is also a surrender of Philippine
claims to sovereign rights over a large region that Filipinos have long considered as
belonging to Philippine national territory, including the KIG. The pursuit of such a
policy also undermines the Philippine claim to the KIG.

95. This is because one basis for the Philippine claim to the KIG is that
they constitute a natural prolongation of the continental shelf of the province of
Palawan.

96.

29

To deny that Palawan possesses a Continental Shelf and that the

Camago- Malampaya fields are a natural prolongation of Palawans landmass is to

bargain away the Filipino peoples rightful claim to the rich marine resources in
the region

in contravention of our national interest in the integrity of the national

territory as well as the peoples right indeed, the herein petitioners right to enjoy
the benefits of the natural resources of the country.

97. It is therefore, a violation of the fundamental law of the land, which

declares thus:
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
30
citizens.
29

See also Gerardo M.C. Valero, The Dispute Over the Spratly Archipelago: Is the Question of
Sovereignty Still Relevant? Proceedings of a Round Table Discussion sponsored by the UP Institute of

International Legal Studies,1-69 (1993) and H. Harry Roque, Jr., Chinas Claim to the Spratlys: A Critical
Analysis, JOURN. OF EN, & NAT. RES. LAW (1007).

98. What are covered by the continental shelf provisions? These are
the sovereign right to explore and exploit its natural resources

31

(a)

which do not depend

on occupation, effective or notional, or any express proclamation

32

and are

exclusive in the sense that if the coastal state does not explore the continental shelf
or exploit its
natural resources, no one may undertake these activities without the express consent
33

of the coastal state ; (b) exclusive rights to: construct, operate and use of artificial
34

islands, installations and structures on the continental shelf ; authorize and regulate
drilling on the continental shelf for all purposes; and exploit the subsoil by means of
tunneling, irrespective of the depth of the water above the subsoil.

99. Needless to say,

these

involve special and

35

important

constitutional

issues requiring this Honorable Courts intervention.

100.
Moreover, assuming that the better part of judicial discretion is
exercised in favor of deference to the legislature on the issue of territorial delimitation,
there are other issues presented before the Court a quo already discussed above that it
has the duty to resolve under the Constitution and that it cannot avoid if it is to faithfully
perform such duty. For these issues involve the disbursement of public funds in
violation of law, jurisprudence and the constitution and Petitioners, as do the public,
stand to suffer irreparable injury if these acts are not restrained.

30

CONST. (1987). Art. XII, Sec. 2 (2). For an excellent background on this article, see A. Suzette V.
Suarez, Note: Revisiting the Provision on Protection of Marine Wealth and Reservation of its Use for
the Exclusive Enjoyment of Filipino Citizens in the 1987 Constitution, 4 OCEAN LAW AND POLICY
SERIES, 125-136 (2000).
31
Art. 77 (1), UNCLOS III.
32
Art. 56(3), UNCLOS III.
33
Art. 77(1) UNCLOS III.
34
Art. 80, UNCLOS III.

35

Art. 85, UNCLOS III.

III.
THE HONORABLE COURT A

QUO
GRAVELY ERRED UNDER LAW IN
DISMISSING THE CASE FOR THE
ALLEGED
FAILURE
OF
PETITIONERS TO PROVIDE IT WITH
A COPY OF THE PROVISIONAL
INTERIM
AGREEMENT
(PIA),
CONSIDERING THAT THE TERMS
AND PROVISIONS OF EO 683
EMBODY ALL THE TERMS AND
PROVISIONS OF THE ASSAILED

PIA.

THUS WHAT IS BEING

CHALLENGED IS THE QUESTIONED
ORDER, WHICH
WAS DRAFTED
AND ISSUED TO EXPRESS IN
OFFICIAL TERMS AND TO PUT
INTO
LEGAL EFFECT THE PIAS OWN
TERMS
AND
CONDITIONS;
REQUIRING
PETITIONERS
TO
SUBMIT A COPY OF THE PIA,
DRAFTED AND SIGNED IN THE
FIRST PLACE UNDER CONDITIONS
OF SECRECY, WOULD SIMPLY BE
SUPERFLOUS, ACCORDING TO THE
RULES COURT.

101.

The most cursory reading of EO 683 shows that it in fact embodies all

the relevant provisions of the PIA; in fact, it can be said to be a mere re-statement of the
PIA.

102.

According to EO 683, the main intent of the PIA is to forge an

agreement between the National Government and the Province of Palawan, with the
conformity of its Representations, which would allow:
50% of the disputed 40% of the Net Government Share in the proceeds
of SC 38 to be utilized for the immediate and effective implementation
of the development projects for the people of Palawan.

103.

Along this line, 1 of EO 683 provides that under the PIA, the DBM

is authorized to release funds to the implementing agencies on the endorsement and

submission by the DOE and/or the PNOC Exploration Corporation of the following
documents: a) directive by the Office of the President or written request of the
Province of Palawan, the Palawan Congressional Districts or the Highly Urbanized City
of Puerto Princesa,

for

the

funding of designated projects (

1.1); (b)

certification that the designated projects fall under the investment program of the
Province of Palawan, City of Puerto Princesa, and/or the development projects
identified in the development program of the National Government or its agencies;
(1.2); and (c), Bureau of Treasury certification on the availability of funds from the
50% of the 40% share being claimed by the Province of Palawan from the Net
Government Share under SC 38.

104.

It states that the DBM shall be subject to the actual collections

deposited with the National Treasury, and shall be in accordance with the Annual Fiscal
Program of the National Government.

105.

Moreover,

3 of EO 683, which provides that the National

government shall allow the Province of Palawan, the Congressional Districts of

Palawan and the City of Puerto Princesa to securitize their shares in the 50% of the
disputed 40% of the Net Government Share in the proceeds of SC 38 according to
the PIA.

The DOE, in consultation with the DOF, will be responsible for preparing

the Net Government Revenues for the period of to June 30, 1010 [sic].

106.

The amounts released pursuant to this EO shall be without prejudice

to any on-going discussions or final judicial resolution of the legal dispute regarding
the National Governments territorial jurisdiction over the areas covered

by SC

38 in relation to the claim of the Province of Palawan under Sec. 290 of RA 7160,
according to 4 of EO 683.

107.

It is clear from the terms and provisions of EO 683 that these in fact

only re-state in official terms the terms and provisions of the PIA. The signatories to the
PIA have also been duly identified in the questioned Executive Order.

108.

In fact, from the tenor of EO 683, it can be reasonably said that there

is nothing significant in the PIA that has not been reproduced or repeated in the
questioned Executive Order.

109.

Thus it should be stressed that what is being assailed is EO 683

itself, which puts into official legal terms the provisions of the PIA; EO 683 is the legal
act putting into legal effect the provisions of the PIA that is subject to the special civil
action of certiorari under Rule 65 in the Court a quo.

110.

The relevant portion of 1 of Rule 65 only requires that the petition be

accompanied by a certified true copy of the judgment, order or resolution subject

thereof, copies of all pleadings and documents relevant and pertinent thereto.

111.

The pleadings and documents required are only those relevant

and pertinent to the resolution of the case. At issue here is really the unconstitutional
and illegal issuance of EO 683, which has been made subject to the special civil action
of certiorari under Rule 65.

The PIA would not be subject to such a challenge

precisely because it would have a different legal effect by itself, in the absence of an
enabling or implementing law. A different remedy would be appropriate and not such a
special civil action a complaint for the annulment of a contract, and filed with a
different court and not the Court a quo, in particular the Regional Trial Court, which has
subject matter jurisdiction over such an action.

112.

Having said this, it must also be noted that the PIA has been kept

under wraps and away from the eyes of the people of Palawan by the signatories. It was
entered into with utmost secrecy. The signatories to the PIA did not disclose it to the
people of Palawan. Hence it came as a big surprise to the Petitioners when the EO 683
was issued; as they had earlier manifested, they only came to know about the PIA
because of the Executive Order in question. After EO 683 came to light, Petitioners
decided to bring the matter to Court because of its patent illegality and
unconstitutionality.

113.

If anything, there is an issue here of the peoples constitutional right

to information on matters that affect public life.

36

It is incumbent upon the Court to ask

the parties to the PIA who are respondents to the special civil action for certiorari under
Rule
65 before the Court a quo to produce the questioned agreement in the proceedings before
it.

36

CONST.(1987) Art.III 7: The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy development,
shall be afforded the citizen, subject to such limitations as may be provided by law.

IV.
THE HONORABLE COURT A

QUO
ERRED UNDER LAW IN DISMISSING
THE CASE FOR THE ALLEGED
FAILURE OF PETITIONERS TO
PROVIDE
IT
WITH
CERTAIN
DOCUMENTS PERTAINING TO GR
NO. 170867, CONSIDERING THAT
UNDER THE RULES OF COURT
THESE
ARE
NOT
REALLY
NECESSARY - AS THEY ARE ONLY
TANGENTIAL

TO
THE
RESOLUTION OF THE CASE BY THE
COURT A QUO, NOT TO MENTION
THAT PETITIONERS ARE NOT EVEN
PARTIES TO THE CASES OF WHICH
THE SAME DOCUMENTS ARE PART,
AS THIS HONORABLE COURT
ITSELF
HAS
ALREADY
DETERMINED.

114.

As already noted above, Petitioners received a copy of a Resolution

dated June 23, 2008 of the Third Division of this Honorable Court, in which the High
Court resolved to note thus: the letter dated 10 April 2008 of Romel Regalado Bagares
of Roque and Butuyan Law Offices and to DENY his request for certified true copies of
documents enumerated therein to be submitted in a related case pending before the
Court of Appeals as the said law office is not a counsel for any party.

115.

Despite the best efforts exerted by undersigned counsel on behalf of

the Petitioners, they could not obtain a copy of the Petition filed in GR No. 170867
pending before the Third Division of this Honorable Court because, as already noted by
the same Court, undersigned counsel is not a counsel for any party in the said case.

116.

However, some of the Respondents in the case before the Court a quo

are parties to the case in GR No. 170867; they are therefore, the most logical sources of
the Petition as well as related documents, including SC 98.

117.

In any case, GR No.170867 and its records are now a matter of judicial

notice to this Honorable Court.

118.

Besides, and as already discussed above, the relevant portion of 1

of Rule 65 only requires that the petition be accompanied by a certified true copy of
the judgment, order or resolution subject thereof, copies of all pleadings and documents
relevant and pertinent thereto.

119.

The Rules state that the pleadings and documents required are only those

relevant and pertinent to the resolution of the case. What is at issue here? It is the
unconstitutional and illegal issuance of EO 683, which has been made subject to the
special civil action of certiorari under Rule 65.

120.

Moreover, as Petitioners argue above, the provision to the Court a quo of

a copy of the Petition and of SC 98 is not necessary for it to adjudicate on the issues
presented in this case, inasmuch as the terms and provisions of EO 683 may be
adjudicated upon by the Court without direct reference to the conflicting territorial
claims made by the National Government and the Province of Palawan.

121.

The issue of whether the gas wells of Malampaya fall properly within

the Palawan provincial territory is distinct and separate from whether or not
the disbursements that EO 683 allow to be made are in violation of both the 1987
Charter and the relevant provisions in the 1991 Local Government Code on the
equitable share of the local government unit in the distribution of the proceeds of the
national wealth within its

jurisdiction as well as of the jurisprudence on the immediate release of the

International
Revenue Allotment.

PRAYER

WHEREFORE, premises considered, Petitioners respectfully pray that this

Honorable
Court issue a Resolution
(1) giving due course to the Petition;
(2) annulling the Court a quos Resolutions dated May 29, 2008 and June 6, 2008;
and
(3) declaring the questioned EO 386 both illegal and unconstitutional on the
grounds
discussed above.
Other relief just and equitable are also prayed for.
Makati City for the City of Manila, February 17,
2009.

By the Counsel for Petitioners:

ROQUE & BUTUYAN LAW OFFICES

Unit 1904 Antel 2000 Corporate Center
121 Valero St., Salcedo Village
Makati City 1200

Tel No. 750-3847 to 48

Email: mail@roquebutuyan.com
Fax No: 887-3893

By:

H. HARRY L. ROQUE, JR.

PTR NO. 0008545/JAN. 8, 2009/MAKATI CITY
IBP NO. 499912/LIFETIME/MAKATI CITY
ROLL NO. 36976
MCLE EXEMPTION NO. II-002169
JOEL RUIZ BUTUYAN
PTR NO. 0008546/JAN. 8, 2009/MAKATI CITY
IBP NO. 500459/ LIFETIME/MAKATI CITY
ROLL NO. 36911
MCLE COMPLIANCE NO. 0000571
ROMEL REGALADO BAGARES
PTR NO. 0016687/JAN 14, 2009/MAKATI CITY
IBP NO. 775414/JAN 12, 2009/SOCSARGEN
ROLL NO. 49518
MCLE COMPLIANCE NO.II-0015132 JAN. 5, 2009

COPY FURNISHED:
Office of the Solicitor General
134 Amorsolo St.,Legaspi Village
1229 Makati City
Hon. Eduardo Ermita
Secretary
Office of the Executive Secretary
Malacanang, Manila
Hon. Rolando D. Andaya Jr.
Secretary
Department of Budget and Management
JP Laurel St., corner Ayala St. Manila
Hon. Angelo T. Reyes
Secretary
Department of Energy
Meritt Road, Fort
Bonifacio Taguig, Metro
Manila
Hon. Margarito B. Teves
Secretary
Department of Finance
Roxas Blvd., corner Vito Cruz St.,
Manila

Hon. Joel T. Reyes

Governor
Provincial Capitol
Puerto Princesa City
Palawan
Hon. Antonio C. Alvarez
st
Representative, 1 District, Palawan
House of Representatives Complex
Constitutional Hills, Quezon City
1126
Hon. Baham Mitra
nd
Representative, 2 District, Palawan
House of Representatives Complex
Constitution Hills, Quezon City 1126.
Rafael E. Del Pilar
President & CEO
PNOC Exploration Corporation
Building 1, Energy Center
Fort Bonifacio
Taguig City 1634

EXPLANATION

Due to the shortage of messengerial services and lack of time this Petition is
being served to the other parties by registered mail in accordance with Section 11,
Rule 13 of the Revised Rules of Court.
ROMEL REGALADO BAGARES