Envi Cases

Contents
LA BUGAL-BLAAN TRIBAL ASSOCIATION v. Executive Secretary.....................................................................1

Tano v. Socrates...................................................................................................................................................34
Africa v. Caltex......................................................................................................................................................46
Cruz v. Secretary..................................................................................................................................................52
Province of Rizal v. Executive Secretary..............................................................................................................87
Magallona v. Ermita............................................................................................................................................103
MMDA v. JANCOM.............................................................................................................................................112
LA BUGAL-BLAAN TRIBAL ASSOCIATION v. Executive Secretary
/---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\
[2004V98E] [1/4] LA BUGAL-BLAAN TRIBAL ASSOCIATION, INC., et al petitioners, vs. VICTOR O. RAMOS,
SECRETARY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR), HORACIO RAMOS,
DIRECTOR, MINES AND GEOSCIENCES BUREAU (MGB-DENR), RUBEN TORRES, EXECUTIVE SECRETARY,
and WMC (PHILIPPINES), INC. [4] respondents.2004 Jan 27En Banc G.R. No. 127882
DECISION
CARPIO-MORALES, J.:
The present petition for mandamus and prohibition assails the constitutionality of Republic Act No. 7942,[5]
otherwise known as the PHILIPPINE MINING ACT OF 1995, along with the Implementing Rules and Regulations
issued pursuant thereto, Department of Environment and Natural Resources (DENR) Administrative Order 96-40,
and of the Financial and Technical Assistance Agreement (FTAA) entered into on March 30, 1995 by the Republic of
the Philippines and WMC (Philippines), Inc. (WMCP), a corporation organized under Philippine laws.
On July 25, 1987, then President Corazon C. Aquino issued Executive Order (E.O.) No. 279[6] authorizing the
DENR Secretary to
accept, consider and evaluate proposals from foreign-owned corporations or foreign investors for contracts or
agreements involving either technical or financial assistance for large-scale exploration, development, and utilization
of minerals, which, upon appropriate recommendation of the Secretary, the President may execute with the foreign
proponent. In entering into such proposals, the President shall consider the real contributions to the economic
growth and general welfare of the country that will be realized, as well as the development and use of local scientific
and technical resources that will be promoted by the proposed contract or agreement. Until Congress shall
determine otherwise, large-scale mining, for purpose of this Section, shall mean those proposals for contracts or
agreements for mineral resources exploration, development, and utilization involving a committed capital investment
in a single mining unit project of at least Fifty Million Dollars in United States Currency (US $50,000,000.00).[7]
On March 3, 1995, then President Fidel V. Ramos approved R.A. No. 7942 to govern the exploration, development,
utilization and processing of all mineral resources.[8] R.A. No. 7942 defines the modes of mineral agreements for
mining operations,[9] outlines the procedure for their filing and approval,[10] assignment/transfer[11] and withdrawal,
[12] and fixes their terms.[13] Similar provisions govern financial or technical assistance agreements.[14]
The law prescribes the qualifications of contractors[15] and grants them certain rights, including timber,[16]
water[17] and easement[18] rights, and the right to possess explosives.[19] Surface owners, occupants, or
concessionaires are forbidden from preventing holders of mining rights from entering private lands and concession
areas.[20] A procedure for the settlement of conflicts is likewise provided for.[21]
The Act restricts the conditions for exploration,[22] quarry[23] and other[24] permits. It regulates the transport, sale
and processing of minerals,[25] and promotes the development of mining communities, science and mining
technology,[26] and safety and environmental protection.[27]
The governments share in the agreements is spelled out and allocated,[28] taxes and fees are imposed,[29]
incentives granted.[30] Aside from penalizing certain acts,[31] the law likewise specifies grounds for the
cancellation, revocation and termination of agreements and permits.[32]
On April 9, 1995, 30 days following its publication on March 10, 1995 in Malaya and Manila Times, two newspapers
of general circulation, R.A. No. 7942 took effect.[33]
Shortly before the effectivity of R.A. No. 7942, however, or on March 30, 1995, the President entered into an FTAA
with WMCP covering 99,387 hectares of land in South Cotabato, Sultan Kudarat, Davao del Sur and North
Cotabato.[34]
On August 15, 1995, then DENR Secretary Victor O. Ramos issued DENR Administrative Order (DAO) No. 95-23, s.
1995, otherwise known as the Implementing Rules and Regulations of R.A. No. 7942. This was later repealed by
DAO No. 96-40, s. 1996 which was adopted on December 20, 1996.
On January 10, 1997, counsels for petitioners sent a letter to the DENR Secretary demanding that the DENR stop
the implementation of R.A. No. 7942 and DAO No. 96-40,[35] giving the DENR fifteen days from receipt[36] to act
thereon. The DENR, however, has yet to respond or act on petitioners letter.[37]
Petitioners thus filed the present petition for prohibition and mandamus, with a prayer for a temporary restraining
order. They allege that at the time of the filing of the petition, 100 FTAA applications had already been filed,
covering an area of 8.4 million hectares,[38] 64 of which applications are by fully foreign-owned corporations
covering a total of 5.8 million hectares, and at least one by a fully foreign-owned mining company over offshore
areas.[39]
Petitioners claim that the DENR Secretary acted without or in excess of jurisdiction:
x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the
latter being unconstitutional in that it allows fully foreign owned corporations to explore, develop, utilize and exploit
mineral resources in a manner contrary to Section 2, paragraph 4, Article XII of the Constitution;
II
latter being unconstitutional in that it allows the taking of private property without the determination of public use and
for just compensation;
III
latter being unconstitutional in that it violates Sec. 1, Art. III of the Constitution;
IV
latter being unconstitutional in that it allows enjoyment by foreign citizens as well as fully foreign owned corporations
of the nations marine wealth contrary to Section 2, paragraph 2 of Article XII of the Constitution;
V
latter being unconstitutional in that it allows priority to foreign and fully foreign owned corporations in the exploration,
development and utilization of mineral resources contrary to Article XII of the Constitution;
VI
latter being unconstitutional in that it allows the inequitable sharing of wealth contrary to Sections [sic] 1, paragraph
1, and Section 2, paragraph 4[,] [Article XII] of the Constitution;
VII
x x x in recommending approval of and implementing the Financial and Technical Assistance Agreement between
the President of the Republic of the Philippines and Western Mining Corporation Philippines Inc. because the same
is illegal and unconstitutional.[40]
They pray that the Court issue an order:
(a) Permanently enjoining respondents from acting on any application for Financial or Technical Assistance
Agreements;
(b) Declaring the Philippine Mining Act of 1995 or Republic Act No. 7942 as unconstitutional and null and void;
(c) Declaring the Implementing Rules and Regulations of the Philippine Mining Act contained in DENR
Administrative Order No. 96-40 and all other similar administrative issuances as unconstitutional and null and void;
and
(d) Cancelling the Financial and Technical Assistance Agreement issued to Western Mining Philippines, Inc. as
unconstitutional, illegal and null and void.[41]
Impleaded as public respondents are Ruben Torres, the then Executive Secretary, Victor O. Ramos, the then DENR
Secretary, and Horacio Ramos, Director of the Mines and Geosciences Bureau of the DENR. Also impleaded is
private respondent WMCP, which entered into the assailed FTAA with the Philippine Government. WMCP is owned
by WMC Resources International Pty., Ltd. (WMC), a wholly owned subsidiary of Western Mining Corporation
Holdings Limited, a publicly listed major Australian mining and exploration company.[42] By WMCPs information, it
is a 100% owned subsidiary of WMC LIMITED.[43]
Respondents, aside from meeting petitioners contentions, argue that the requisites for judicial inquiry have not been
met and that the petition does not comply with the criteria for prohibition and mandamus. Additionally, respondent
WMCP argues that there has been a violation of the rule on hierarchy of courts.
After petitioners filed their reply, this Court granted due course to the petition. The parties have since filed their
respective memoranda.
WMCP subsequently filed a Manifestation dated September 25, 2002 alleging that on January 23, 2001, WMC sold
all its shares in WMCP to Sagittarius Mines, Inc. (Sagittarius), a corporation organized under Philippine laws.[44]
WMCP was subsequently renamed Tampakan Mineral Resources Corporation.[45] WMCP claims that at least
60% of the equity of Sagittarius is owned by Filipinos and/or Filipino-owned corporations while about 40% is owned
by Indophil Resources NL, an Australian company.[46] It further claims that by such sale and transfer of shares,
WMCP has ceased to be connected in any way with WMC.[47]
By virtue of such sale and transfer, the DENR Secretary, by Order of December 18, 2001,[48] approved the transfer
and registration of the subject FTAA from WMCP to Sagittarius. Said Order, however, was appealed by Lepanto
Consolidated Mining Co. (Lepanto) to the Office of the President which upheld it by Decision of July 23, 2002.[49]
Its motion for reconsideration having been denied by the Office of the President by Resolution of November 12,
2002,[50] Lepanto filed a petition for review[51] before the Court of Appeals. Incidentally, two other petitions for
review related to the approval of the transfer and registration of the FTAA to Sagittarius were recently resolved by
this Court.[52]
It bears stressing that this case has not been rendered moot either by the transfer and registration of the FTAA to a
Filipino-owned corporation or by the non-issuance of a temporary restraining order or a preliminary injunction to stay
the above-said July 23, 2002 decision of the Office of the President.[53] The validity of the transfer remains in
dispute and awaits final judicial determination. This assumes, of course, that such transfer cures the FTAAs alleged
unconstitutionality, on which question judgment is reserved.
WMCP also points out that the original claimowners of the major mineralized areas included in the WMCP FTAA,
namely, Sagittarius, Tampakan Mining Corporation, and Southcot Mining Corporation, are all Filipino-owned
corporations,[54] each of which was a holder of an approved Mineral Production Sharing Agreement awarded in
1994, albeit their respective mineral claims were subsumed in the WMCP FTAA;[55] and that these three companies
are the same companies that consolidated their interests in Sagittarius to whom WMC sold its 100% equity in
WMCP.[56] WMCP concludes that in the event that the FTAA is invalidated, the MPSAs of the three corporations
would be revived and the mineral claims would revert to their original claimants.[57]
These circumstances, while informative, are hardly significant in the resolution of this case, it involving the validity of
the FTAA, not the possible consequences of its invalidation.
Of the above-enumerated seven grounds cited by petitioners, as will be shown later, only the first and the last need
be delved into; in the latter, the discussion shall dwell only insofar as it questions the effectivity of E. O. No. 279 by
virtue of which order the questioned FTAA was forged.
Before going into the substantive issues, the procedural questions posed by respondents shall first be tackled.
REQUISITES FOR JUDICIAL REVIEW
When an issue of constitutionality is raised, this Court can exercise its power of judicial review only if the following
requisites are present:
(1) The existence of an actual and appropriate case;
(2) A personal and substantial interest of the party raising the constitutional question;
(3) The exercise of judicial review is pleaded at the earliest opportunity; and
(4) The constitutional question is the lis mota of the case. [58]
Respondents claim that the first three requisites are not present.
Section 1, Article VIII of the Constitution states that (j)udicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable. The power of judicial review,
therefore, is limited to the determination of actual cases and controversies.[59]
An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination,
not conjectural or anticipatory,[60] lest the decision of the court would amount to an advisory opinion.[61] The power
does not extend to hypothetical questions[62] since any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities.[63]
Legal standing or locus standi has been defined as a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of the governmental act that is being challenged,[64]
alleging more than a generalized grievance.[65] The gist of the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional questions.[66] Unless
a person is injuriously affected in any of his constitutional rights by the operation of statute or ordinance, he has no
standing.[67]
Petitioners traverse a wide range of sectors. Among them are La Bugal Blaan Tribal Association, Inc., a farmers
and indigenous peoples cooperative organized under Philippine laws representing a community actually affected by
the mining activities of WMCP, members of said cooperative,[68] as well as other residents of areas also affected by
the mining activities of WMCP.[69] These petitioners have standing to raise the constitutionality of the questioned
FTAA as they allege a personal and substantial injury. They claim that they would suffer irremediable
displacement[70] as a result of the implementation of the FTAA allowing WMCP to conduct mining activities in their
area of residence. They thus meet the appropriate case requirement as they assert an interest adverse to that of
respondents who, on the other hand, insist on the FTAAs validity.
In view of the alleged impending injury, petitioners also have standing to assail the validity of E.O. No. 279, by
authority of which the FTAA was executed.
Public respondents maintain that petitioners, being strangers to the FTAA, cannot sue either or both contracting
parties to annul it.[71] In other words, they contend that petitioners are not real parties in interest in an action for the
annulment of contract.
Public respondents contention fails. The present action is not merely one for annulment of contract but for
prohibition and mandamus. Petitioners allege that public respondents acted without or in excess of jurisdiction in
implementing the FTAA, which they submit is unconstitutional. As the case involves constitutional questions, this
Court is not concerned with whether petitioners are real parties in interest, but with whether they have legal
standing. As held in Kilosbayan v. Morato:[72]
x x x. It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very
different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue.
Although all three requirements are directed towards ensuring that only certain parties can maintain an action,
standing restrictions require a partial consideration of the merits, as well as broader policy concerns relating to the
proper role of the judiciary in certain areas.[] (FRIEDENTHAL, KANE AND MILLER, CIVIL PROCEDURE 328
[1985])
Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have
been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or
voters who actually sue in the public interest. Hence, the question in standing is whether such parties have alleged
such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination of difficult constitutional
questions. (Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 633 [1962].)
As earlier stated, petitioners meet this requirement.
The challenge against the constitutionality of R.A. No. 7942 and DAO No. 96-40 likewise fulfills the requisites of
justiciability. Although these laws were not in force when the subject FTAA was entered into, the question as to their
validity is ripe for adjudication.
The WMCP FTAA provides:
14.3 Future Legislation
Any term and condition more favourable to Financial &Technical Assistance Agreement contractors resulting from
repeal or amendment of any existing law or regulation or from the enactment of a law, regulation or administrative
order shall be considered a part of this Agreement.
It is undisputed that R.A. No. 7942 and DAO No. 96-40 contain provisions that are more favorable to WMCP, hence,
these laws, to the extent that they are favorable to WMCP, govern the FTAA.
In addition, R.A. No. 7942 explicitly makes certain provisions apply to pre-existing agreements.
SEC. 112. Non-impairment of Existing Mining/Quarrying Rights. x x x That the provisions of Chapter XIV on
government share in mineral production-sharing agreement and of Chapter XVI on incentives of this Act shall
immediately govern and apply to a mining lessee or contractor unless the mining lessee or contractor indicates his
intention to the secretary, in writing, not to avail of said provisions x x x Provided, finally, That such leases,
production-sharing agreements, financial or technical assistance agreements shall comply with the applicable
provisions of this Act and its implementing rules and regulations.
As there is no suggestion that WMCP has indicated its intention not to avail of the provisions of Chapter XVI of R.A.
No. 7942, it can safely be presumed that they apply to the WMCP FTAA.
Misconstruing the application of the third requisite for judicial review that the exercise of the review is pleaded at
the earliest opportunity WMCP points out that the petition was filed only almost two years after the execution of
the FTAA, hence, not raised at the earliest opportunity.
The third requisite should not be taken to mean that the question of constitutionality must be raised immediately
after the execution of the state action complained of. That the question of constitutionality has not been raised
before is not a valid reason for refusing to allow it to be raised later.[73] A contrary rule would mean that a law,
otherwise unconstitutional, would lapse into constitutionality by the mere failure of the proper party to promptly file a
case to challenge the same.
PROPRIETY OF PROHIBITION
AND MANDAMUS
Before the effectivity in July 1997 of the Revised Rules of Civil Procedure, Section 2 of Rule 65 read:
SEC. 2. Petition for prohibition. When the proceedings of any tribunal, corporation, board, or person, whether
exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with grave abuse of
discretion, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying
that judgment be rendered commanding the defendant to desist from further proceeding in the action or matter
specified therein.
Prohibition is a preventive remedy.[74] It seeks a judgment ordering the defendant to desist from continuing with the
commission of an act perceived to be illegal.[75]
The petition for prohibition at bar is thus an appropriate remedy. While the execution of the contract itself may be fait
accompli, its implementation is not. Public respondents, in behalf of the Government, have obligations to fulfill under
said contract. Petitioners seek to prevent them from fulfilling such obligations on the theory that the contract is
unconstitutional and, therefore, void.
The propriety of a petition for prohibition being upheld, discussion of the propriety of the mandamus aspect of the
petition is rendered unnecessary.
HIERARCHY OF COURTS
The contention that the filing of this petition violated the rule on hierarchy of courts does not likewise lie. The rule
has been explained thus:
Between two courts of concurrent original jurisdiction, it is the lower court that should initially pass upon the issues
of a case. That way, as a particular case goes through the hierarchy of courts, it is shorn of all but the important
legal issues or those of first impression, which are the proper subject of attention of the appellate court. This is a
procedural rule borne of experience and adopted to improve the administration of justice.
This Court has consistently enjoined litigants to respect the hierarchy of courts. Although this Court has concurrent
jurisdiction with the Regional Trial Courts and the Court of Appeals to issue writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give a party unrestricted
freedom of choice of court forum. The resort to this Courts primary jurisdiction to issue said writs shall be allowed
only where the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling
circumstances justify such invocation. We held in People v. Cuaresma that:
A becoming regard for judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs
against first level (inferior) courts should be filed with the Regional Trial Court, and those against the latter, with the
Court of Appeals. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be
allowed only where there are special and important reasons therefor, clearly and specifically set out in the petition.
This is established policy. It is a policy necessary to prevent inordinate demands upon the Courts time and
attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-
crowding of the Courts docket x x x.[76] [ mphasis supplied.]
The repercussions of the issues in this case on the Philippine mining industry, if not the national economy, as well as
the novelty thereof, constitute exceptional and compelling circumstances to justify resort to this Court in the first
instance.
In all events, this Court has the discretion to take cognizance of a suit which does not satisfy the requirements of an
actual case or legal standing when paramount public interest is involved.[77] When the issues raised are of
paramount importance to the public, this Court may brush aside technicalities of procedure.[78]
II
Petitioners contend that E.O. No. 279 did not take effect because its supposed date of effectivity came after
President Aquino had already lost her legislative powers under the Provisional Constitution.
And they likewise claim that the WMC FTAA, which was entered into pursuant to E.O. No. 279, violates Section 2,
Article XII of the Constitution because, among other reasons:
(1) It allows foreign-owned companies to extend more than mere financial or technical assistance to the State
in the exploitation, development, and utilization of minerals, petroleum, and other mineral oils, and even permits
foreign owned companies to operate and manage mining activities.
(2) It allows foreign-owned companies to extend both technical and financial assistance, instead of either
technical or financial assistance.
To appreciate the import of these issues, a visit to the history of the pertinent constitutional provision, the concepts
contained therein, and the laws enacted pursuant thereto, is in order.
Section 2, Article XII reads in full:
Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and supervision of the State. The
State may directly undertake such activities or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more
than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may
be the measure and limit of the grant.
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.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or financial
assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by law, based on real contributions to the economic growth
and general welfare of the country. In such agreements, the State shall promote the development and use of local
scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty
days from its execution.
THE SPANISH REGIME

AND THE REGALIAN DOCTRINE
The first sentence of Section 2 embodies the Regalian doctrine or jura regalia. Introduced by Spain into these
Islands, this feudal concept is based on the States power of dominium, which is the capacity of the State to own or
acquire property.[79]
In its broad sense, the term jura regalia refers to royal rights, or those rights which the King has by virtue of his
prerogatives. In Spanish law, it refers to a right which the sovereign has over anything in which a subject has a right
of property or propriedad. These were rights enjoyed during feudal times by the king as the sovereign.
The theory of the feudal system was that title to all lands was originally held by the King, and while the use of lands
was granted out to others who were permitted to hold them under certain conditions, the King theoretically retained
the title. By fiction of law, the King was regarded as the original proprietor of all lands, and the true and only source
of title, and from him all lands were held. The theory of jura regalia was therefore nothing more than a natural fruit
of conquest.[80]
The Philippines having passed to Spain by virtue of discovery and conquest,[81] earlier Spanish decrees declared
that all lands were held from the Crown.[82]
The Regalian doctrine extends not only to land but also to all natural wealth that may be found in the bowels of the
earth.[83] Spain, in particular, recognized the unique value of natural resources, viewing them, especially minerals,
as an abundant source of revenue to finance its wars against other nations.[84] Mining laws during the Spanish
regime reflected this perspective.[85]
THE AMERICAN OCCUPATION AND
THE CONCESSION REGIME
By the Treaty of Paris of December 10, 1898, Spain ceded the archipelago known as the Philippine Islands to the
United States. The Philippines was hence governed by means of organic acts that were in the nature of charters
serving as a Constitution of the occupied territory from 1900 to 1935.[86] Among the principal organic acts of the
Philippines was the Act of Congress of July 1, 1902, more commonly known as the Philippine Bill of 1902, through
which the United States Congress assumed the administration of the Philippine Islands.[87] Section 20 of said Bill
reserved the disposition of mineral lands of the public domain from sale. Section 21 thereof allowed the free and
open exploration, occupation and purchase of mineral deposits not only to citizens of the Philippine Islands but to
those of the United States as well:
Sec. 21. That all valuable mineral deposits in public lands in the Philippine Islands, both surveyed and unsurveyed,
are hereby declared to be free and open to exploration, occupation and purchase, and the land in which they are
found, to occupation and purchase, by citizens of the United States or of said Islands: Provided, That when on any
lands in said Islands entered and occupied as agricultural lands under the provisions of this Act, but not patented,
mineral deposits have been found, the working of such mineral deposits is forbidden until the person, association, or
corporation who or which has entered and is occupying such lands shall have paid to the Government of said
Islands such additional sum or sums as will make the total amount paid for the mineral claim or claims in which said
deposits are located equal to the amount charged by the Government for the same as mineral claims.
Unlike Spain, the United States considered natural resources as a source of wealth for its nationals and saw fit to
allow both Filipino and American citizens to explore and exploit minerals in public lands, and to grant patents to
private mineral lands.[88] A person who acquired ownership over a parcel of private mineral land pursuant to the
laws then prevailing could exclude other persons, even the State, from exploiting minerals within his property.[89]
Thus, earlier jurisprudence[90] held that:
A valid and subsisting location of mineral land, made and kept up in accordance with the provisions of the statutes
of the United States, has the effect of a grant by the United States of the present and exclusive possession of the
lands located, and this exclusive right of possession and enjoyment continues during the entire life of the location. x
x x.
x x x.
The discovery of minerals in the ground by one who has a valid mineral location perfects his claim and his location
not only against third persons, but also against the Government. x x x. [Italics in the original.]
The Regalian doctrine and the American system, therefore, differ in one essential respect. Under the Regalian
theory, mineral rights are not included in a grant of land by the state; under the American doctrine, mineral rights are
included in a grant of land by the government.[91]
Section 21 also made possible the concession (frequently styled permit, license or lease)[92] system.[93] This
was the traditional regime imposed by the colonial administrators for the exploitation of natural resources in the
extractive sector (petroleum, hard minerals, timber, etc.).[94]
Under the concession system, the concessionaire makes a direct equity investment for the purpose of exploiting a
particular natural resource within a given area.[95] Thus, the concession amounts to complete control by the
concessionaire over the countrys natural resource, for it is given exclusive and plenary rights to exploit a particular
resource at the point of extraction.[96] In consideration for the right to exploit a natural resource, the concessionaire
either pays rent or royalty, which is a fixed percentage of the gross proceeds.[97]
Later statutory enactments by the legislative bodies set up in the Philippines adopted the contractual framework of
the concession.[98] For instance, Act No. 2932,[99] approved on August 31, 1920, which provided for the
exploration, location, and lease of lands containing petroleum and other mineral oils and gas in the Philippines, and
Act No. 2719,[100] approved on May 14, 1917, which provided for the leasing and development of coal lands in the
Philippines, both utilized the concession system.[101]
THE 1935 CONSTITUTION AND THE
NATIONALIZATION OF NATURAL RESOURCES
By the Act of United States Congress of March 24, 1934, popularly known as the Tydings-McDuffie Law, the People
of the Philippine Islands were authorized to adopt a constitution.[102] On July 30, 1934, the Constitutional
Convention met for the purpose of drafting a constitution, and the Constitution subsequently drafted was approved
by the Convention on February 8, 1935.[103] The Constitution was submitted to the President of the United States
on March 18, 1935.[104] On March 23, 1935, the President of the United States certified that the Constitution
conformed substantially with the provisions of the Act of Congress approved on March 24, 1934.[105] On May 14,
1935, the Constitution was ratified by the Filipino people.[106]
The 1935 Constitution adopted the Regalian doctrine, declaring all natural resources of the Philippines, including
mineral lands and minerals, to be property belonging to the State.[107] As adopted in a republican system, the
medieval concept of jura regalia is stripped of royal overtones and ownership of the land is vested in the State.[108]
Section 1, Article XIII, on Conservation and Utilization of Natural Resources, of the 1935 Constitution provided:
SECTION 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, and other natural resources of the Philippines belong to the State,
and their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines, or to
corporations or associations at least sixty per centum of the capital of which is owned by such citizens, subject to
any existing right, grant, lease, or concession at the time of the inauguration of the Government established under
this Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, development, or utilization of any of the natural resources shall be
granted for a period exceeding twenty-five years, except as to water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, in which cases beneficial use may be the measure and
the limit of the grant.
The nationalization and conservation of the natural resources of the country was one of the fixed and dominating
objectives of the 1935 Constitutional Convention.[109] One delegate relates:
There was an overwhelming sentiment in the Convention in favor of the principle of state ownership of natural
resources and the adoption of the Regalian doctrine. State ownership of natural resources was seen as a
necessary starting point to secure recognition of the states power to control their disposition, exploitation,
development, or utilization. The delegates of the Constitutional Convention very well knew that the concept of State
ownership of land and natural resources was introduced by the Spaniards, however, they were not certain whether it
was continued and applied by the Americans. To remove all doubts, the Convention approved the provision in the
Constitution affirming the Regalian doctrine.
The adoption of the principle of state ownership of the natural resources and of the Regalian doctrine was
considered to be a necessary starting point for the plan of nationalizing and conserving the natural resources of the
country. For with the establishment of the principle of state ownership of the natural resources, it would not be hard
to secure the recognition of the power of the State to control their disposition, exploitation, development or
utilization.[110]
The nationalization of the natural resources was intended (1) to insure their conservation for Filipino posterity; (2) to
serve as an instrument of national defense, helping prevent the extension to the country of foreign control through
peaceful economic penetration; and (3) to avoid making the Philippines a source of international conflicts with the
consequent danger to its internal security and independence.[111]
The same Section 1, Article XIII also adopted the concession system, expressly permitting the State to grant
licenses, concessions, or leases for the exploitation, development, or utilization of any of the natural resources.
Grants, however, were limited to Filipinos or entities at least 60% of the capital of which is owned by Filipinos.
The swell of nationalism that suffused the 1935 Constitution was radically diluted when on November 1946, the
Parity Amendment, which came in the form of an Ordinance Appended to the Constitution, was ratified in a
plebiscite.[112] The Amendment extended, from July 4, 1946 to July 3, 1974, the right to utilize and exploit our
natural resources to citizens of the United States and business enterprises owned or controlled, directly or indirectly,
by citizens of the United States:[113]
Notwithstanding the provision of section one, Article Thirteen, and section eight, Article Fourteen, of the foregoing
Constitution, during the effectivity of the Executive Agreement entered into by the President of the Philippines with
the President of the United States on the fourth of July, nineteen hundred and forty-six, pursuant to the provisions of
Commonwealth Act Numbered Seven hundred and thirty-three, but in no case to extend beyond the third of July,
nineteen hundred and seventy-four, the disposition, exploitation, development, and utilization of all agricultural,
timber, and mineral lands of the public domain, waters, minerals, coals, petroleum, and other mineral oils, all forces
and sources of potential energy, and other natural resources of the Philippines, and the operation of public utilities,
shall, if open to any person, be open to citizens of the United States and to all forms of business enterprise owned
or controlled, directly or indirectly, by citizens of the United States in the same manner as to, and under the same
conditions imposed upon, citizens of the Philippines or corporations or associations owned or controlled by citizens
of the Philippines.
The Parity Amendment was subsequently modified by the 1954 Revised Trade Agreement, also known as the
Laurel-Langley Agreement, embodied in Republic Act No. 1355.[114]
THE PETROLEUM ACT OF 1949
AND THE CONCESSION SYSTEM
In the meantime, Republic Act No. 387,[115] also known as the Petroleum Act of 1949, was approved on June 18,
1949.
The Petroleum Act of 1949 employed the concession system for the exploitation of the nations petroleum
resources. Among the kinds of concessions it sanctioned were exploration and exploitation concessions, which
respectively granted to the concessionaire the exclusive right to explore for[116] or develop[117] petroleum within
specified areas.
Concessions may be granted only to duly qualified persons[118] who have sufficient finances, organization,
resources, technical competence, and skills necessary to conduct the operations to be undertaken.[119]
Nevertheless, the Government reserved the right to undertake such work itself.[120] This proceeded from the theory
that all natural deposits or occurrences of petroleum or natural gas in public and/or private lands in the Philippines
belong to the State.[121] Exploration and exploitation concessions did not confer upon the concessionaire
ownership over the petroleum lands and petroleum deposits.[122] However, they did grant concessionaires the right
to explore, develop, exploit, and utilize them for the period and under the conditions determined by the law.[123]
Concessions were granted at the complete risk of the concessionaire; the Government did not guarantee the
existence of petroleum or undertake, in any case, title warranty.[124]
Concessionaires were required to submit information as maybe required by the Secretary of Agriculture and Natural
Resources, including reports of geological and geophysical examinations, as well as production reports.[125]
Exploration[126] and exploitation[127] concessionaires were also required to submit work programs.
Exploitation concessionaires, in particular, were obliged to pay an annual exploitation tax,[128] the object of which is
to induce the concessionaire to actually produce petroleum, and not simply to sit on the concession without
developing or exploiting it.[129] These concessionaires were also bound to pay the Government royalty, which was
not less than 12% of the petroleum produced and saved, less that consumed in the operations of the
concessionaire.[130] Under Article 66, R.A. No. 387, the exploitation tax may be credited against the royalties so
that if the concessionaire shall be actually producing enough oil, it would not actually be paying the exploitation tax.
[131]
Failure to pay the annual exploitation tax for two consecutive years,[132] or the royalty due to the Government
within one year from the date it becomes due,[133] constituted grounds for the cancellation of the concession. In
case of delay in the payment of the taxes or royalty imposed by the law or by the concession, a surcharge of 1% per
month is exacted until the same are paid.[134]
As a rule, title rights to all equipment and structures that the concessionaire placed on the land belong to the
exploration or exploitation concessionaire.[135] Upon termination of such concession, the concessionaire had a
right to remove the same.[136]
The Secretary of Agriculture and Natural Resources was tasked with carrying out the provisions of the law, through
the Director of Mines, who acted under the Secretarys immediate supervision and control.[137] The Act granted the
Secretary the authority to inspect any operation of the concessionaire and to examine all the books and accounts
pertaining to operations or conditions related to payment of taxes and royalties.[138]
The same law authorized the Secretary to create an Administration Unit and a Technical Board.[139] The
Administration Unit was charged, inter alia, with the enforcement of the provisions of the law.[140] The Technical
Board had, among other functions, the duty to check on the performance of concessionaires and to determine
whether the obligations imposed by the Act and its implementing regulations were being complied with.[141]
Victorio Mario A. Dimagiba, Chief Legal Officer of the Bureau of Energy Development, analyzed the benefits and
drawbacks of the concession system insofar as it applied to the petroleum industry:
Advantages of Concession. Whether it emphasizes income tax or royalty, the most positive aspect of the
concession system is that the States financial involvement is virtually risk free and administration is simple and
comparatively low in cost. Furthermore, if there is a competitive allocation of the resource leading to substantial
bonuses and/or greater royalty coupled with a relatively high level of taxation, revenue accruing to the State under
the concession system may compare favorably with other financial arrangements.
Disadvantages of Concession. There are, however, major negative aspects to this system. Because the
Governments role in the traditional concession is passive, it is at a distinct disadvantage in managing and
developing policy for the nations petroleum resource. This is true for several reasons. First, even though most
concession agreements contain covenants requiring diligence in operations and production, this establishes only an
indirect and passive control of the host country in resource development. Second, and more importantly, the fact
that the host country does not directly participate in resource management decisions inhibits its ability to train and
employ its nationals in petroleum development. This factor could delay or prevent the country from effectively
engaging in the development of its resources. Lastly, a direct role in management is usually necessary in order to
obtain a knowledge of the international petroleum industry which is important to an appreciation of the host countrys
resources in relation to those of other countries.[142]
Other liabilities of the system have also been noted:

x x x there are functional implications which give the concessionaire great economic power arising from its exclusive
equity holding. This includes, first, appropriation of the returns of the undertaking, subject to a modest royalty;
second, exclusive management of the project; third, control of production of the natural resource, such as volume of
production, expansion, research and development; and fourth, exclusive responsibility for downstream operations,
like processing, marketing, and distribution. In short, even if nominally, the state is the sovereign and owner of the
natural resource being exploited, it has been shorn of all elements of control over such natural resource because of
the exclusive nature of the contractual regime of the concession. The concession system, investing as it does
ownership of natural resources, constitutes a consistent inconsistency with the principle embodied in our
Constitution that natural resources belong to the state and shall not be alienated, not to mention the fact that the
concession was the bedrock of the colonial system in the exploitation of natural resources.[143]
Eventually, the concession system failed for reasons explained by Dimagiba:
Notwithstanding the good intentions of the Petroleum Act of 1949, the concession system could not have properly
spurred sustained oil exploration activities in the country, since it assumed that such a capital-intensive, high risk
venture could be successfully undertaken by a single individual or a small company. In effect, concessionaires
funds were easily exhausted. Moreover, since the concession system practically closed its doors to interested
foreign investors, local capital was stretched to the limits. The old system also failed to consider the highly
sophisticated technology and expertise required, which would be available only to multinational companies.[144]
A shift to a new regime for the development of natural resources thus seemed imminent.
PRESIDENTIAL DECREE NO. 87, THE 1973
CONSTITUTION AND THE SERVICE CONTRACT SYSTEM
The promulgation on December 31, 1972 of Presidential Decree No. 87,[145] otherwise known as The Oil
Exploration and Development Act of 1972 signaled such a transformation. P.D. No. 87 permitted the government to
explore for and produce indigenous petroleum through service contracts.[146]
Service contracts is a term that assumes varying meanings to different people, and it has carried many names in
different countries, like work contracts in Indonesia, concession agreements in Africa, production-sharing
agreements in the Middle East, and participation agreements in Latin America.[147] A functional definition of
service contracts in the Philippines is provided as follows:
A service contract is a contractual arrangement for engaging in the exploitation and development of petroleum,
mineral, energy, land and other natural resources by which a government or its agency, or a private person granted
a right or privilege by the government authorizes the other party (service contractor) to engage or participate in the
exercise of such right or the enjoyment of the privilege, in that the latter provides financial or technical resources,
undertakes the exploitation or production of a given resource, or directly manages the productive enterprise,
operations of the exploration and exploitation of the resources or the disposition of marketing or resources.[148]
In a service contract under P.D. No. 87, service and technology are furnished by the service contractor for which it
shall be entitled to the stipulated service fee.[149] The contractor must be technically competent and financially
capable to undertake the operations required in the contract.[150]
Financing is supposed to be provided by the Government to which all petroleum produced belongs.[151] In case the
Government is unable to finance petroleum exploration operations, the contractor may furnish services, technology
and financing, and the proceeds of sale of the petroleum produced under the contract shall be the source of funds
for payment of the service fee and the operating expenses due the contractor.[152] The contractor shall undertake,
manage and execute petroleum operations, subject to the government overseeing the management of the
operations.[153] The contractor provides all necessary services and technology and the requisite financing,
performs the exploration work obligations, and assumes all exploration risks such that if no petroleum is produced, it
will not be entitled to reimbursement.[154] Once petroleum in commercial quantity is discovered, the contractor
shall operate the field on behalf of the government.[155]
P.D. No. 87 prescribed minimum terms and conditions for every service contract.[156] It also granted the contractor
certain privileges, including exemption from taxes and payment of tariff duties,[157] and permitted the repatriation of
capital and retention of profits abroad.[158]
Ostensibly, the service contract system had certain advantages over the concession regime.[159] It has been
opined, though, that, in the Philippines, our concept of a service contract, at least in the petroleum industry, was
basically a concession regime with a production-sharing element.[160]
On January 17, 1973, then President Ferdinand E. Marcos proclaimed the ratification of a new Constitution.[161]
Article XIV on the National Economy and Patrimony contained provisions similar to the 1935 Constitution with
regard to Filipino participation in the nations natural resources. Section 8, Article XIV thereof provides:
Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State. With the exception of
agricultural, industrial or commercial, residential and resettlement lands of the public domain, natural resources shall
not be alienated, and no license, concession, or lease for the exploration, development, exploitation, or utilization of
any of the natural resources shall be granted for a period exceeding twenty-five years, renewable for not more than
twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the measure and the limit of the grant.
While Section 9 of the same Article maintained the Filipino-only policy in the enjoyment of natural resources, it also
allowed Filipinos, upon authority of the Batasang Pambansa, to enter into service contracts with any person or entity
for the exploration or utilization of natural resources.
Sec. 9. The disposition, exploration, development, exploitation, or utilization of any of the natural resources of the
Philippines shall be limited to citizens, or to corporations or associations at least sixty per centum of which is owned
by such citizens. The Batasang Pambansa, in the national interest, may allow such citizens, corporations or
associations to enter into service contracts for financial, technical, management, or other forms of assistance with
any person or entity for the exploration, or utilization of any of the natural resources. Existing valid and binding
service contracts for financial, technical, management, or other forms of assistance are hereby recognized as such.
[Emphasis supplied.]
The concept of service contracts, according to one delegate, was borrowed from the methods followed by India,
Pakistan and especially Indonesia in the exploration of petroleum and mineral oils.[162] The provision allowing such
contracts, according to another, was intended to enhance the proper development of our natural resources since
Filipino citizens lack the needed capital and technical know-how which are essential in the proper exploration,
development and exploitation of the natural resources of the country.[163]
The original idea was to authorize the government, not private entities, to enter into service contracts with foreign
entities.[164] As finally approved, however, a citizen or private entity could be allowed by the National Assembly to
enter into such service contract.[165] The prior approval of the National Assembly was deemed sufficient to protect
the national interest.[166] Notably, none of the laws allowing service contracts were passed by the Batasang
Pambansa. Indeed, all of them were enacted by presidential decree.
On March 13, 1973, shortly after the ratification of the new Constitution, the President promulgated Presidential
Decree No. 151.[167] The law allowed Filipino citizens or entities which have acquired lands of the public domain or
which own, hold or control such lands to enter into service contracts for financial, technical, management or other
forms of assistance with any foreign persons or entity for the exploration, development, exploitation or utilization of
said lands.[168]
Presidential Decree No. 463,[169] also known as The Mineral Resources Development Decree of 1974, was
enacted on May 17, 1974. Section 44 of the decree, as amended, provided that a lessee of a mining claim may
enter into a service contract with a qualified domestic or foreign contractor for the exploration, development and
exploitation of his claims and the processing and marketing of the product thereof.
Presidential Decree No. 704[170] (The Fisheries Decree of 1975), approved on May 16, 1975, allowed Filipinos
engaged in commercial fishing to enter into contracts for financial, technical or other forms of assistance with any
foreign person, corporation or entity for the production, storage, marketing and processing of fish and fishery/aquatic
products.[171]
Presidential Decree No. 705[172] (The Revised Forestry Code of the Philippines), approved on May 19, 1975,
allowed forest products licensees, lessees, or permitees to enter into service contracts for financial, technical,
management, or other forms of assistance . . . with any foreign person or entity for the exploration, development,
exploitation or utilization of the forest resources.[173]
Yet another law allowing service contracts, this time for geothermal resources, was Presidential Decree No. 1442,
[174] which was signed into law on June 11, 1978. Section 1 thereof authorized the Government to enter into
service contracts for the exploration, exploitation and development of geothermal resources with a foreign contractor
who must be technically and financially capable of undertaking the operations required in the service contract.
Thus, virtually the entire range of the countrys natural resources from petroleum and minerals to geothermal
energy, from public lands and forest resources to fishery products was well covered by apparent legal authority to
engage in the direct participation or involvement of foreign persons or corporations (otherwise disqualified) in the
exploration and utilization of natural resources through service contracts.[175]
THE 1987 CONSTITUTION AND TECHNICAL
OR FINANCIAL ASSISTANCE AGREEMENTS
After the February 1986 Edsa Revolution, Corazon C. Aquino took the reins of power under a revolutionary
government. On March 25, 1986, President Aquino issued Proclamation No. 3,[176] promulgating the Provisional
Constitution, more popularly referred to as the Freedom Constitution. By authority of the same Proclamation, the
President created a Constitutional Commission (CONCOM) to draft a new constitution, which took effect on the date
of its ratification on February 2, 1987.[177]
The 1987 Constitution retained the Regalian doctrine. The first sentence of Section 2, Article XII states: All lands
of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.
Like the 1935 and 1973 Constitutions before it, the 1987 Constitution, in the second sentence of the same provision,
prohibits the alienation of natural resources, except agricultural lands.
The third sentence of the same paragraph is new: The exploration, development and utilization of natural resources
shall be under the full control and supervision of the State. The constitutional policy of the States full control and
supervision over natural resources proceeds from the concept of jura regalia, as well as the recognition of the
importance of the countrys natural resources, not only for national economic development, but also for its security
and national defense.[178] Under this provision, the State assumes a more dynamic role in the exploration,
development and utilization of natural resources.[179]
Conspicuously absent in Section 2 is the provision in the 1935 and 1973 Constitutions authorizing the State to grant
licenses, concessions, or leases for the exploration, exploitation, development, or utilization of natural resources.
By such omission, the utilization of inalienable lands of public domain through license, concession or lease is no
longer allowed under the 1987 Constitution.[180]
Having omitted the provision on the concession system, Section 2 proceeded to introduce unfamiliar language:
[181]
The State may directly undertake such activities or it may enter into co-production, joint venture, or production-
sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital
is owned by such citizens.
Consonant with the States full supervision and control over natural resources, Section 2 offers the State two
options.[182] One, the State may directly undertake these activities itself; or two, it may enter into co-production,
joint venture, or production-sharing agreements with Filipino citizens, or entities at least 60% of whose capital is
owned by such citizens.
A third option is found in the third paragraph of the same section:
While the second and third options are limited only to Filipino citizens or, in the case of the former, to corporations or
associations at least 60% of the capital of which is owned by Filipinos, a fourth allows the participation of foreign-
owned corporations. The fourth and fifth paragraphs of Section 2 provide:
Although Section 2 sanctions the participation of foreign-owned corporations in the exploration, development, and
utilization of natural resources, it imposes certain limitations or conditions to agreements with such corporations.
First, the parties to FTAAs. Only the President, in behalf of the State, may enter into these agreements, and only
with corporations. By contrast, under the 1973 Constitution, a Filipino citizen, corporation or association may enter
into a service contract with a foreign person or entity.
Second, the size of the activities: only large-scale exploration, development, and utilization is allowed. The term
large-scale usually refers to very capital-intensive activities.[183]
Third, the natural resources subject of the activities is restricted to minerals, petroleum and other mineral oils, the
intent being to limit service contracts to those areas where Filipino capital may not be sufficient.[184]
Fourth, consistency with the provisions of statute. The agreements must be in accordance with the terms and
conditions provided by law.
Fifth, Section 2 prescribes certain standards for entering into such agreements. The agreements must be based on
real contributions to economic growth and general welfare of the country.
Sixth, the agreements must contain rudimentary stipulations for the promotion of the development and use of local
Seventh, the notification requirement. The President shall notify Congress of every financial or technical assistance
agreement entered into within thirty days from its execution.
Finally, the scope of the agreements. While the 1973 Constitution referred to service contracts for financial,
technical, management, or other forms of assistance the 1987 Constitution provides for agreements. . . involving
either financial or technical assistance. It bears noting that the phrases service contracts and management or
other forms of assistance in the earlier constitution have been omitted.
By virtue of her legislative powers under the Provisional Constitution,[185] President Aquino, on July 10, 1987,
signed into law E.O. No. 211 prescribing the interim procedures in the processing and approval of applications for
the exploration, development and utilization of minerals. The omission in the 1987 Constitution of the term service
contracts notwithstanding, the said E.O. still referred to them in Section 2 thereof:
Sec. 2. Applications for the exploration, development and utilization of mineral resources, including renewal
applications and applications for approval of operating agreements and mining service contracts, shall be accepted
and processed and may be approved x x x. [ mphasis supplied.]
The same law provided in its Section 3 that the processing, evaluation and approval of all mining applications . . .
operating agreements and service contracts . . . shall be governed by Presidential Decree No. 463, as amended,
other existing mining laws, and their implementing rules and regulations. . . .
As earlier stated, on the 25th also of July 1987, the President issued E.O. No. 279 by authority of which the subject
WMCP FTAA was executed on March 30, 1995.
On March 3, 1995, President Ramos signed into law R.A. No. 7942. Section 15 thereof declares that the Act shall
govern the exploration, development, utilization, and processing of all mineral resources. Such declaration
notwithstanding, R.A. No. 7942 does not actually cover all the modes through which the State may undertake the
exploration, development, and utilization of natural resources.
The State, being the owner of the natural resources, is accorded the primary power and responsibility in the
exploration, development and utilization thereof. As such, it may undertake these activities through four modes:
The State may directly undertake such activities.
(2) The State may enter into co-production, joint venture or production-sharing agreements with Filipino
citizens or qualified corporations.
(3) Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens.
(4) For the large-scale exploration, development and utilization of minerals, petroleum and other mineral oils,
the President may enter into agreements with foreign-owned corporations involving technical or financial assistance.
[186]
Except to charge the Mines and Geosciences Bureau of the DENR with performing researches and surveys,[187]
and a passing mention of government-owned or controlled corporations,[188] R.A. No. 7942 does not specify how
the State should go about the first mode. The third mode, on the other hand, is governed by Republic Act No.
7076[189] (the Peoples Small-Scale Mining Act of 1991) and other pertinent laws.[190] R.A. No. 7942 primarily
concerns itself with the second and fourth modes.
Mineral production sharing, co-production and joint venture agreements are collectively classified by R.A. No. 7942
as mineral agreements.[191] The Government participates the least in a mineral production sharing agreement
(MPSA). In an MPSA, the Government grants the contractor[192] the exclusive right to conduct mining operations
within a contract area[193] and shares in the gross output.[194] The MPSA contractor provides the financing,
technology, management and personnel necessary for the agreements implementation.[195] The total government
share in an MPSA is the excise tax on mineral products under Republic Act No. 7729,[196] amending Section 151(a)
of the National Internal Revenue Code, as amended.[197]
In a co-production agreement (CA),[198] the Government provides inputs to the mining operations other than the
mineral resource,[199] while in a joint venture agreement (JVA), where the Government enjoys the greatest
participation, the Government and the JVA contractor organize a company with both parties having equity shares.
[200] Aside from earnings in equity, the Government in a JVA is also entitled to a share in the gross output.[201] The
Government may enter into a CA[202] or JVA[203] with one or more contractors. The Governments share in a CA
or JVA is set out in Section 81 of the law:
The share of the Government in co-production and joint venture agreements shall be negotiated by the Government
and the contractor taking into consideration the: (a) capital investment of the project, (b) the risks involved, (c)
contribution of the project to the economy, and (d) other factors that will provide for a fair and equitable sharing
between the Government and the contractor. The Government shall also be entitled to compensations for its other
contributions which shall be agreed upon by the parties, and shall consist, among other things, the contractors
income tax, excise tax, special allowance, withholding tax due from the contractors foreign stockholders arising
from dividend or interest payments to the said foreign stockholders, in case of a foreign national and all such other
taxes, duties and fees as provided for under existing laws.
All mineral agreements grant the respective contractors the exclusive right to conduct mining operations and to
extract all mineral resources found in the contract area.[204] A qualified person may enter into any of the mineral
agreements with the Government.[205] A qualified person is
any citizen of the Philippines with capacity to contract, or a corporation, partnership, association, or cooperative
organized or authorized for the purpose of engaging in mining, with technical and financial capability to undertake
mineral resources development and duly registered in accordance with law at least sixty per centum (60%) of the
capital of which is owned by citizens of the Philippines x x x.[206]
The fourth mode involves financial or technical assistance agreements. An FTAA is defined as a contract
involving financial or technical assistance for large-scale exploration, development, and utilization of natural
resources.[207] Any qualified person with technical and financial capability to undertake large-scale exploration,
development, and utilization of natural resources in the Philippines may enter into such agreement directly with the
Government through the DENR.[208] For the purpose of granting an FTAA, a legally organized foreign-owned
corporation (any corporation, partnership, association, or cooperative duly registered in accordance with law in
which less than 50% of the capital is owned by Filipino citizens)[209] is deemed a qualified person.[210]
Other than the difference in contractors qualifications, the principal distinction between mineral agreements and
FTAAs is the maximum contract area to which a qualified person may hold or be granted.[211] Large-scale under
R.A. No. 7942 is determined by the size of the contract area, as opposed to the amount invested (US
$50,000,000.00), which was the standard under E.O. 279.
Like a CA or a JVA, an FTAA is subject to negotiation.[212] The Governments contributions, in the form of taxes, in
an FTAA is identical to its contributions in the two mineral agreements, save that in an FTAA:
The collection of Government share in financial or technical assistance agreement shall commence after the
financial or technical assistance agreement contractor has fully recovered its pre-operating expenses, exploration,
and development expenditures, inclusive.[213]
III
Having examined the history of the constitutional provision and statutes enacted pursuant thereto, a consideration of
the substantive issues presented by the petition is now in order.
THE EFFECTIVITY OF
EXECUTIVE ORDER NO. 279
Petitioners argue that E.O. No. 279, the law in force when the WMC FTAA was executed, did not come into effect.
E.O. No. 279 was signed into law by then President Aquino on July 25, 1987, two days before the opening of
Congress on July 27, 1987.[214] Section 8 of the E.O. states that the same shall take effect immediately. This
provision, according to petitioners, runs counter to Section 1 of E.O. No. 200,[215] which provides:
SECTION 1. Laws shall take effect after fifteen days following the completion of their publication either in the Official
Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.[216] [ mphasis
supplied.]
On that premise, petitioners contend that E.O. No. 279 could have only taken effect fifteen days after its publication
at which time Congress had already convened and the Presidents power to legislate had ceased.
Respondents, on the other hand, counter that the validity of E.O. No. 279 was settled in Miners Association of the
Philippines v. Factoran, supra. This is of course incorrect for the issue in Miners Association was not the validity of
E.O. No. 279 but that of DAO Nos. 57 and 82 which were issued pursuant thereto.
Nevertheless, petitioners contentions have no merit.
It bears noting that there is nothing in E.O. No. 200 that prevents a law from taking effect on a date other than
even before the 15-day period after its publication. Where a law provides for its own date of effectivity, such date
prevails over that prescribed by E.O. No. 200. Indeed, this is the very essence of the phrase unless it is otherwise
provided in Section 1 thereof. Section 1, E.O. No. 200, therefore, applies only when a statute does not provide for
its own date of effectivity.
What is mandatory under E.O. No. 200, and what due process requires, as this Court held in Taada v. Tuvera,[217]
is the publication of the law for
without such notice and publication, there would be no basis for the application of the maxim ignorantia legis
n[eminem] excusat. It would be the height of injustice to punish or otherwise burden a citizen for the transgression
of a law of which he had no notice whatsoever, not even a constructive one.
While the effectivity clause of E.O. No. 279 does not require its publication, it is not a ground for its invalidation since
the Constitution, being the fundamental, paramount and supreme law of the nation, is deemed written in the law.
[218] Hence, the due process clause,[219] which, so Taada held, mandates the publication of statutes, is read
into Section 8 of E.O. No. 279. Additionally, Section 1 of E.O. No. 200 which provides for publication either in the
Official Gazette or in a newspaper of general circulation in the Philippines, finds suppletory application. It is
significant to note that E.O. No. 279 was actually published in the Official Gazette[220] on August 3, 1987.
From a reading then of Section 8 of E.O. No. 279, Section 1 of E.O. No. 200, and Taada v. Tuvera, this Court holds
that E.O. No. 279 became effective immediately upon its publication in the Official Gazette on August 3, 1987.
That such effectivity took place after the convening of the first Congress is irrelevant. At the time President Aquino
issued E.O. No. 279 on July 25, 1987, she was still validly exercising legislative powers under the Provisional
Constitution.[221] Article XVIII (Transitory Provisions) of the 1987 Constitution explicitly states:
Sec. 6. The incumbent President shall continue to exercise legislative powers until the first Congress is convened.
The convening of the first Congress merely precluded the exercise of legislative powers by President Aquino; it did
not prevent the effectivity of laws she had previously enacted.
There can be no question, therefore, that E.O. No. 279 is an effective, and a validly enacted, statute.
THE CONSTITUTIONALITY
OF THE WMCP FTAA
Petitioners submit that, in accordance with the text of Section 2, Article XII of the Constitution, FTAAs should be
limited to technical or financial assistance only. They observe, however, that, contrary to the language of the
Constitution, the WMCP FTAA allows WMCP, a fully foreign-owned mining corporation, to extend more than mere
financial or technical assistance to the State, for it permits WMCP to manage and operate every aspect of the
mining activity. [222]
Petitioners submission is well-taken. It is a cardinal rule in the interpretation of constitutions that the instrument
must be so construed as to give effect to the intention of the people who adopted it.[223] This intention is to be
sought in the constitution itself, and the apparent meaning of the words is to be taken as expressing it, except in
cases where that assumption would lead to absurdity, ambiguity, or contradiction.[224] What the Constitution says
according to the text of the provision, therefore, compels acceptance and negates the power of the courts to alter it,
based on the postulate that the framers and the people mean what they say.[225] Accordingly, following the literal
text of the Constitution, assistance accorded by foreign-owned corporations in the large-scale exploration,
development, and utilization of petroleum, minerals and mineral oils should be limited to technical or financial
assistance only.
WMCP nevertheless submits that the word technical in the fourth paragraph of Section 2 of E.O. No. 279
encompasses a broad number of possible services, perhaps, scientific and/or technological in basis.[226] It thus
posits that it may also well include the area of management or operations . . . so long as such assistance requires
specialized knowledge or skills, and are related to the exploration, development and utilization of mineral
resources.[227]
This Court is not persuaded. As priorly pointed out, the phrase management or other forms of assistance in the
1973 Constitution was deleted in the 1987 Constitution, which allows only technical or financial assistance. Casus
omisus pro omisso habendus est. A person, object or thing omitted from an enumeration must be held to have been
omitted intentionally.[228] As will be shown later, the management or operation of mining activities by foreign
contractors, which is the primary feature of service contracts, was precisely the evil that the drafters of the 1987
Constitution sought to eradicate.
Respondents insist that agreements involving technical or financial assistance is just another term for service
contracts. They contend that the proceedings of the CONCOM indicate that although the terminology service
contract was avoided [by the Constitution], the concept it represented was not. They add that [t]he concept is
embodied in the phrase agreements involving financial or technical assistance.[229] And point out how members
of the CONCOM referred to these agreements as service contracts. For instance:
SR. TAN. Am I correct in thinking that the only difference between these future service contracts and the past
service contracts under Mr. Marcos is the general law to be enacted by the legislature and the notification of
Congress by the President? That is the only difference, is it not?
MR. VILLEGAS. That is right.
SR. TAN. So those are the safeguards[?]
MR. VILLEGAS. Yes. There was no law at all governing service contracts before.
SR. TAN. Thank you, Madam President.[230] [ mphasis supplied.]
WMCP also cites the following statements of Commissioners Gascon, Garcia, Nolledo and Tadeo who alluded to
service contracts as they explained their respective votes in the approval of the draft Article:
MR. GASCON. Mr. Presiding Officer, I vote no primarily because of two reasons: One, the provision on service
contracts. I felt that if we would constitutionalize any provision on service contracts, this should always be with the
concurrence of Congress and not guided only by a general law to be promulgated by Congress. x x x.[231]
[ mphasis supplied.]
x x x.
MR. GARCIA. Thank you.
I vote no. x x x.
Service contracts are given constitutional legitimization in Section 3, even when they have been proven to be
inimical to the interests of the nation, providing as they do the legal loophole for the exploitation of our natural
resources for the benefit of foreign interests. They constitute a serious negation of Filipino control on the use and
disposition of the nations natural resources, especially with regard to those which are nonrenewable.[232]
[ mphasis supplied.]
xxx
MR. NOLLEDO. While there are objectionable provisions in the Article on National Economy and Patrimony, going
over said provisions meticulously, setting aside prejudice and personalities will reveal that the article contains a
balanced set of provisions. I hope the forthcoming Congress will implement such provisions taking into account that
Filipinos should have real control over our economy and patrimony, and if foreign equity is permitted, the same must
be subordinated to the imperative demands of the national interest.
x x x.
It is also my understanding that service contracts involving foreign corporations or entities are resorted to only when
no Filipino enterprise or Filipino-controlled enterprise could possibly undertake the exploration or exploitation of our
natural resources and that compensation under such contracts cannot and should not equal what should pertain to
ownership of capital. In other words, the service contract should not be an instrument to circumvent the basic
provision, that the exploration and exploitation of natural resources should be truly for the benefit of Filipinos.
Thank you, and I vote yes.[233] [ mphasis supplied.]
x x x.
MR. TADEO. Nais ko lamang ipaliwanag ang aking boto.

Matapos suriin ang kalagayan ng Pilipinas, ang saligang suliranin, pangunahin ang salitang imperyalismo. Ang
ibig sabihin nito ay ang sistema ng lipunang pinaghaharian ng iilang monopolyong kapitalista at ang salitang
imperyalismo ay buhay na buhay sa National Economy and Patrimony na nating ginawa. Sa pamamagitan ng
salitang based on, naroroon na ang free trade sapagkat tayo ay mananatiling tagapagluwas ng hilaw na sangkap
at tagaangkat ng yaring produkto. Pangalawa, naroroon pa rin ang parity rights, ang service contract, ang 60-40
equity sa natural resources. Habang naghihirap ang sambayanang Pilipino, ginagalugad naman ng mga dayuhan
ang ating likas na yaman. Kailan man ang Article on National Economy and Patrimony ay hindi nagpaalis sa
pagkaalipin ng ating ekonomiya sa kamay ng mga dayuhan. Ang solusyon sa suliranin ng bansa ay dalawa
lamang: ang pagpapatupad ng tunay na reporma sa lupa at ang national industrialization. Ito ang tinatawag naming
pagsikat ng araw sa Silangan. Ngunit ang mga landlords and big businessmen at ang mga komprador ay
nagsasabi na ang free trade na ito, ang kahulugan para sa amin, ay ipinipilit sa ating sambayanan na ang araw ay
sisikat sa Kanluran. Kailan man hindi puwedeng sumikat ang araw sa Kanluran. I vote no.[234] [ mphasis
supplied.]
This Court is likewise not persuaded.
As earlier noted, the phrase service contracts has been deleted in the 1987 Constitutions Article on National
Economy and Patrimony. If the CONCOM intended to retain the concept of service contracts under the 1973
Constitution, it could have simply adopted the old terminology (service contracts) instead of employing new and
unfamiliar terms (agreements . . . involving either technical or financial assistance). Such a difference between the
language of a provision in a revised constitution and that of a similar provision in the preceding constitution is
viewed as indicative of a difference in purpose.[235] If, as respondents suggest, the concept of technical or
financial assistance agreements is identical to that of service contracts, the CONCOM would not have bothered to
fit the same dog with a new collar. To uphold respondents theory would reduce the first to a mere euphemism for
the second and render the change in phraseology meaningless.
An examination of the reason behind the change confirms that technical or financial assistance agreements are not
synonymous to service contracts.
[T]he Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in light of the history
of the times, and the condition and circumstances under which the Constitution was framed. The object is to
ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason
and calculated to effect that purpose.[236]
As the following question of Commissioner Quesada and Commissioner Villegas answer shows the drafters
intended to do away with service contracts which were used to circumvent the capitalization (60%-40%)
requirement:
MS. QUESADA. The 1973 Constitution used the words service contracts. In this particular Section 3, is there a
safeguard against the possible control of foreign interests if the Filipinos go into coproduction with them?
MR. VILLEGAS. Yes. In fact, the deletion of the phrase service contracts was our first attempt to avoid some of
the abuses in the past regime in the use of service contracts to go around the 60-40 arrangement. The safeguard
that has been introduced and this, of course can be refined is found in Section 3, lines 25 to 30, where Congress
will have to concur with the President on any agreement entered into between a foreign-owned corporation and the
government involving technical or financial assistance for large-scale exploration, development and utilization of
natural resources.[237] [ mphasis supplied.]
In a subsequent discussion, Commissioner Villegas allayed the fears of Commissioner Quesada regarding the
participation of foreign interests in Philippine natural resources, which was supposed to be restricted to Filipinos.
MS. QUESADA. Another point of clarification is the phrase and utilization of natural resources shall be under the
full control and supervision of the State. In the 1973 Constitution, this was limited to citizens of the Philippines; but
it was removed and substituted by shall be under the full control and supervision of the State. Was the concept
changed so that these particular resources would be limited to citizens of the Philippines? Or would these
resources only be under the full control and supervision of the State; meaning, noncitizens would have access to
these natural resources? Is that the understanding?
MR. VILLEGAS. No, Mr. Vice-President, if the Commissioner reads the next sentence, it states:
Such activities may be directly undertaken by the State, or it may enter into co-production, joint venture, production-
sharing agreements with Filipino citizens.
So we are still limiting it only to Filipino citizens.
x x x.
MS. QUESADA. Going back to Section 3, the section suggests that:
The exploration, development, and utilization of natural resources may be directly undertaken by the State, or it
may enter into co-production, joint venture or production-sharing agreement with . . . corporations or associations at
least sixty per cent of whose voting stock or controlling interest is owned by such citizens.
Lines 25 to 30, on the other hand, suggest that in the large-scale exploration, development and utilization of natural
resources, the President with the concurrence of Congress may enter into agreements with foreign-owned
corporations even for technical or financial assistance.
I wonder if this part of Section 3 contradicts the second part. I am raising this point for fear that foreign investors will
use their enormous capital resources to facilitate the actual exploitation or exploration, development and effective
disposition of our natural resources to the detriment of Filipino investors. I am not saying that we should not
consider borrowing money from foreign sources. What I refer to is that foreign interest should be allowed to
participate only to the extent that they lend us money and give us technical assistance with the appropriate
government permit. In this way, we can insure the enjoyment of our natural resources by our own people.
MR. VILLEGAS. Actually, the second provision about the President does not permit foreign investors to participate.
It is only technical or financial assistance they do not own anything but on conditions that have to be determined
by law with the concurrence of Congress. So, it is very restrictive.
If the Commissioner will remember, this removes the possibility for service contracts which we said yesterday were
avenues used in the previous regime to go around the 60-40 requirement.[238] [ mphasis supplied.]
The present Chief Justice, then a member of the CONCOM, also referred to this limitation in scope in proposing an
amendment to the 60-40 requirement:
MR. DAVIDE. May I be allowed to explain the proposal?
MR. MAAMBONG. Subject to the three-minute rule, Madam President.
MR. DAVIDE. It will not take three minutes.
The Commission had just approved the Preamble. In the Preamble we clearly stated that the Filipino people are
sovereign and that one of the objectives for the creation or establishment of a government is to conserve and
develop the national patrimony. The implication is that the national patrimony or our natural resources are
exclusively reserved for the Filipino people. No alien must be allowed to enjoy, exploit and develop our natural
resources. As a matter of fact, that principle proceeds from the fact that our natural resources are gifts from God to
the Filipino people and it would be a breach of that special blessing from God if we will allow aliens to exploit our
natural resources.
I voted in favor of the Jamir proposal because it is not really exploitation that we granted to the alien corporations
but only for them to render financial or technical assistance. It is not for them to enjoy our natural resources.
Madam President, our natural resources are depleting; our population is increasing by leaps and bounds. Fifty
years from now, if we will allow these aliens to exploit our natural resources, there will be no more natural resources
for the next generations of Filipinos. It may last long if we will begin now. Since 1935 the aliens have been allowed
to enjoy to a certain extent the exploitation of our natural resources, and we became victims of foreign dominance
and control. The aliens are interested in coming to the Philippines because they would like to enjoy the bounty of
nature exclusively intended for Filipinos by God.
And so I appeal to all, for the sake of the future generations, that if we have to pray in the Preamble to preserve
and develop the national patrimony for the sovereign Filipino people and for the generations to come, we must at
this time decide once and for all that our natural resources must be reserved only to Filipino citizens.
Thank you.[239] [ mphasis supplied.]
The opinion of another member of the CONCOM is persuasive[240] and leaves no doubt as to the intention of the
framers to eliminate service contracts altogether. He writes:
Paragraph 4 of Section 2 specifies large-scale, capital-intensive, highly technological undertakings for which the
President may enter into contracts with foreign-owned corporations, and enunciates strict conditions that should
govern such contracts. x x x.
This provision balances the need for foreign capital and technology with the need to maintain the national
sovereignty. It recognizes the fact that as long as Filipinos can formulate their own terms in their own territory, there
is no danger of relinquishing sovereignty to foreign interests.
Are service contracts allowed under the new Constitution? No. Under the new Constitution, foreign investors (fully
alien-owned) can NOT participate in Filipino enterprises except to provide: (1) Technical Assistance for highly
technical enterprises; and (2) Financial Assistance for large-scale enterprises.
The intent of this provision, as well as other provisions on foreign investments, is to prevent the practice (prevalent
in the Marcos government) of skirting the 60/40 equation using the cover of service contracts.[241] [ mphasis
supplied.]
Furthermore, it appears that Proposed Resolution No. 496,[242] which was the draft Article on National Economy
and Patrimony, adopted the concept of agreements . . . involving either technical or financial assistance contained
in the Draft of the 1986 U.P. Law Constitution Project (U.P. Law draft) which was taken into consideration during
the deliberation of the CONCOM.[243] The former, as well as Article XII, as adopted, employed the same
terminology, as the comparative table below shows:
DRAFT OF THE UP LAW CONSTITUTION PROJECT
PROPOSED RESOLUTION NO. 496 OF THE CONSTITUTIONAL COMMISSION
ARTICLE XII OF THE 1987 CONSTITUTION
energy, fisheries, flora and fauna and other natural resources of the Philippines are owned by the State. With the
exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development and
utilization of natural resources shall be under the full control and supervision of the State. Such activities may be
directly undertaken by the state, or it may enter into co-production, joint venture, production sharing agreements
with Filipino citizens or corporations or associations sixty per cent of whose voting stock or controlling interest is
owned by such citizens for a period of not more than twenty-five years, renewable for not more than twenty-five
years and under such terms and conditions as may be provided by law. In case as to water rights for irrigation,
water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the
measure and limit of the grant.
energy, fisheries, forests, flora and fauna, and other natural resources are owned by the State. With the exception
of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization
of natural resources shall be under the full control and supervision of the State. Such activities may be directly
undertaken by the State, or it may enter into co-production, joint venture, production-sharing agreements with
Filipino citizens or corporations or associations at least sixty per cent of whose voting stock or controlling interest is
owned by such citizens. Such agreements shall be for a period of twenty-five years, renewable for not more than
twenty-five years, and under such term and conditions as may be provided by law. In cases of water rights for
irrigation, water supply, fisheries or industrial uses other than the development for water power, beneficial use may
Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and supervision of the State. The
State may directly undertake such activities or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more
than twenty-five years, and under such terms and conditions as may be provided by law. In case of water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may
The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic
The National Assembly may by law allow small scale utilization of natural resources by Filipino citizens.
The Congress may by law allow small-scale utilization of natural resources by Filipino citizens, as well as
cooperative fish farming in rivers, lakes, bays, and lagoons.
The National Assembly, may, by two-thirds vote of all its members by special law provide the terms and conditions
under which a foreign-owned corporation may enter into agreements with the government involving either technical
or financial assistance for large-scale exploration, development, or utilization of natural resources. [ mphasis
supplied.]
The President with the concurrence of Congress, by special law, shall provide the terms and conditions under which
a foreign-owned corporation may enter into agreements with the government involving either technical or financial
assistance for large-scale exploration, development, and utilization of natural resources. [ mphasis supplied.]
scientific and technical resources. [ mphasis supplied.]
The insights of the proponents of the U.P. Law draft are, therefore, instructive in interpreting the phrase technical or
financial assistance.
In his position paper entitled Service Contracts: Old Wine in New Bottles?, Professor Pacifico A. Agabin, who was a
member of the working group that prepared the U.P. Law draft, criticized service contracts for they lodge exclusive
management and control of the enterprise to the service contractor, which is reminiscent of the old concession
regime. Thus, notwithstanding the provision of the Constitution that natural resources belong to the State, and that
these shall not be alienated, the service contract system renders nugatory the constitutional provisions cited.[244]
He elaborates:
Looking at the Philippine model, we can discern the following vestiges of the concession regime, thus:
1. Bidding of a selected area, or leasing the choice of the area to the interested party and then negotiating the
terms and conditions of the contract; (Sec. 5, P.D. 87)
2. Management of the enterprise vested on the contractor, including operation of the field if petroleum is
discovered; (Sec. 8, P.D. 87)
3. Control of production and other matters such as expansion and development; (Sec. 8)
4. Responsibility for downstream operations marketing, distribution, and processing may be with the contractor
(Sec. 8);
5. Ownership of equipment, machinery, fixed assets, and other properties remain with contractor (Sec. 12, P.D.
87);
6. Repatriation of capital and retention of profits abroad guaranteed to the contractor (Sec. 13, P.D. 87); and
7. While title to the petroleum discovered may nominally be in the name of the government, the contractor has
almost unfettered control over its disposition and sale, and even the domestic requirements of the country is
relegated to a pro rata basis (Sec. 8).
In short, our version of the service contract is just a rehash of the old concession regime x x x. Some people have
pulled an old rabbit out of a magicians hat, and foisted it upon us as a new and different animal.
The service contract as we know it here is antithetical to the principle of sovereignty over our natural resources
restated in the same article of the [1973] Constitution containing the provision for service contracts. If the service
contractor happens to be a foreign corporation, the contract would also run counter to the constitutional provision on
nationalization or Filipinization, of the exploitation of our natural resources.[245] [ mphasis supplied. Underscoring
in the original.]
Professor Merlin M. Magallona, also a member of the working group, was harsher in his reproach of the system:
x x x the nationalistic phraseology of the 1935 [Constitution] was retained by the [1973] Charter, but the essence of
nationalism was reduced to hollow rhetoric. The 1973 Charter still provided that the exploitation or development of
the countrys natural resources be limited to Filipino citizens or corporations owned or controlled by them. However,
the martial-law Constitution allowed them, once these resources are in their name, to enter into service contracts
with foreign investors for financial, technical, management, or other forms of assistance. Since foreign investors
have the capital resources, the actual exploitation and development, as well as the effective disposition, of the
countrys natural resources, would be under their direction, and control, relegating the Filipino investors to the role of
second-rate partners in joint ventures.
Through the instrumentality of the service contract, the 1973 Constitution had legitimized at the highest level of state
policy that which was prohibited under the 1973 Constitution, namely: the exploitation of the countrys natural
resources by foreign nationals. The drastic impact of [this] constitutional change becomes more pronounced when it
is considered that the active party to any service contract may be a corporation wholly owned by foreign interests.
In such a case, the citizenship requirement is completely set aside, permitting foreign corporations to obtain actual
possession, control, and [enjoyment] of the countrys natural resources.[246] [ mphasis supplied.]
Accordingly, Professor Agabin recommends that:
Recognizing the service contract for what it is, we have to expunge it from the Constitution and reaffirm ownership
over our natural resources. That is the only way we can exercise effective control over our natural resources.
This should not mean complete isolation of the countrys natural resources from foreign investment. Other contract
forms which are less derogatory to our sovereignty and control over natural resources like technical assistance
agreements, financial assistance [agreements], co-production agreements, joint ventures, production-sharing
could still be utilized and adopted without violating constitutional provisions. In other words, we can adopt contract
forms which recognize and assert our sovereignty and ownership over natural resources, and where the foreign
entity is just a pure contractor instead of the beneficial owner of our economic resources.[247] [ mphasis supplied.]
Still another member of the working group, Professor Eduardo Labitag, proposed that:
2. Service contracts as practiced under the 1973 Constitution should be discouraged, instead the government
may be allowed, subject to authorization by special law passed by an extraordinary majority to enter into either
technical or financial assistance. This is justified by the fact that as presently worded in the 1973 Constitution, a
service contract gives full control over the contract area to the service contractor, for him to work, manage and
dispose of the proceeds or production. It was a subterfuge to get around the nationality requirement of the
constitution.[248] [ mphasis supplied.]
In the annotations on the proposed Article on National Economy and Patrimony, the U.P. Law draft summarized the
rationale therefor, thus:
5. The last paragraph is a modification of the service contract provision found in Section 9, Article XIV of the
1973 Constitution as amended. This 1973 provision shattered the framework of nationalism in our fundamental law
(see Magallona, Nationalism and its Subversion in the Constitution). Through the service contract, the 1973
Constitution had legitimized that which was prohibited under the 1935 constitution - the exploitation of the countrys
natural resources by foreign nationals. Through the service contract, acts prohibited by the Anti-Dummy Law were
recognized as legitimate arrangements. Service contracts lodge exclusive management and control of the
enterprise to the service contractor, not unlike the old concession regime where the concessionaire had complete
control over the countrys natural resources, having been given exclusive and plenary rights to exploit a particular
resource and, in effect, having been assured of ownership of that resource at the point of extraction (see Agabin,
Service Contracts: Old Wine in New Bottles). Service contracts, hence, are antithetical to the principle of
sovereignty over our natural resources, as well as the constitutional provision on nationalization or Filipinization of
the exploitation of our natural resources.
Under the proposed provision, only technical assistance or financial assistance agreements may be entered into,
and only for large-scale activities. These are contract forms which recognize and assert our sovereignty and
ownership over natural resources since the foreign entity is just a pure contractor and not a beneficial owner of our
economic resources. The proposal recognizes the need for capital and technology to develop our natural resources
without sacrificing our sovereignty and control over such resources by the safeguard of a special law which requires
two-thirds vote of all the members of the Legislature. This will ensure that such agreements will be debated upon
exhaustively and thoroughly in the National Assembly to avert prejudice to the nation.[249] [ mphasis supplied.]
The U.P. Law draft proponents viewed service contracts under the 1973 Constitution as grants of beneficial
ownership of the countrys natural resources to foreign owned corporations. While, in theory, the State owns these
natural resources and Filipino citizens, their beneficiaries service contracts actually vested foreigners with the
right to dispose, explore for, develop, exploit, and utilize the same. Foreigners, not Filipinos, became the
beneficiaries of Philippine natural resources. This arrangement is clearly incompatible with the constitutional ideal of
nationalization of natural resources, with the Regalian doctrine, and on a broader perspective, with Philippine
sovereignty.
The proponents nevertheless acknowledged the need for capital and technical know-how in the large-scale
exploitation, development and utilization of natural resources the second paragraph of the proposed draft itself
being an admission of such scarcity. Hence, they recommended a compromise to reconcile the nationalistic
provisions dating back to the 1935 Constitution, which reserved all natural resources exclusively to Filipinos, and the
more liberal 1973 Constitution, which allowed foreigners to participate in these resources through service contracts.
Such a compromise called for the adoption of a new system in the exploration, development, and utilization of
natural resources in the form of technical agreements or financial agreements which, necessarily, are distinct
concepts from service contracts.
The replacement of service contracts with agreements involving either technical or financial assistance, as well
as the deletion of the phrase management or other forms of assistance, assumes greater significance when note
is taken that the U.P. Law draft proposed other equally crucial changes that were obviously heeded by the
CONCOM. These include the abrogation of the concession system and the adoption of new options for the State
in the exploration, development, and utilization of natural resources. The proponents deemed these changes to be
more consistent with the States ownership of, and its full control and supervision (a phrase also employed by the
framers) over, such resources. The Project explained:
3. In line with the State ownership of natural resources, the State should take a more active role in the
exploration, development, and utilization of natural resources, than the present practice of granting licenses,
concessions, or leases hence the provision that said activities shall be under the full control and supervision of the
State. There are three major schemes by which the State could undertake these activities: first, directly by itself;
second, by virtue of co-production, joint venture, production sharing agreements with Filipino citizens or
corporations or associations sixty per cent (60%) of the voting stock or controlling interests of which are owned by
such citizens; or third, with a foreign-owned corporation, in cases of large-scale exploration, development, or
utilization of natural resources through agreements involving either technical or financial assistance only. x x x.
At present, under the licensing concession or lease schemes, the government benefits from such benefits only
through fees, charges, ad valorem taxes and income taxes of the exploiters of our natural resources. Such benefits
are very minimal compared with the enormous profits reaped by theses licensees, grantees, concessionaires.
Moreover, some of them disregard the conservation of natural resources and do not protect the environment from
degradation. The proposed role of the State will enable it to a greater share in the profits it can also actively
husband its natural resources and engage in developmental programs that will be beneficial to them.
4. Aside from the three major schemes for the exploration, development, and utilization of our natural resources,
the State may, by law, allow Filipino citizens to explore, develop, utilize natural resources in small-scale. This is in
recognition of the plight of marginal fishermen, forest dwellers, gold panners, and others similarly situated who
exploit our natural resources for their daily sustenance and survival.[250]
Professor Agabin, in particular, after taking pains to illustrate the similarities between the two systems, concluded
that the service contract regime was but a rehash of the concession system. Old wine in new bottles, as he put
it. The rejection of the service contract regime, therefore, is in consonance with the abolition of the concession
system.
In light of the deliberations of the CONCOM, the text of the Constitution, and the adoption of other proposed
changes, there is no doubt that the framers considered and shared the intent of the U.P. Law proponents in
employing the phrase agreements . . . involving either technical or financial assistance.
While certain commissioners may have mentioned the term service contracts during the CONCOM deliberations,
they may not have been necessarily referring to the concept of service contracts under the 1973 Constitution. As
noted earlier, service contracts is a term that assumes different meanings to different people.[251] The
commissioners may have been using the term loosely, and not in its technical and legal sense, to refer, in general,
to agreements concerning natural resources entered into by the Government with foreign corporations. These loose
statements do not necessarily translate to the adoption of the 1973 Constitution provision allowing service contracts.
It is true that, as shown in the earlier quoted portions of the proceedings in CONCOM, in response to Sr. Tans
question, Commissioner Villegas commented that, other than congressional notification, the only difference between
future and past service contracts is the requirement of a general law as there were no laws previously
authorizing the same.[252] However, such remark is far outweighed by his more categorical statement in his
exchange with Commissioner Quesada that the draft article does not permit foreign investors to participate in the
nations natural resources which was exactly what service contracts did except to provide technical or financial
assistance.[253]
In the case of the other commissioners, Commissioner Nolledo himself clarified in his work that the present charter
prohibits service contracts.[254] Commissioner Gascon was not totally averse to foreign participation, but favored
stricter restrictions in the form of majority congressional concurrence.[255] On the other hand, Commissioners
Garcia and Tadeo may have veered to the extreme side of the spectrum and their objections may be interpreted as
votes against any foreign participation in our natural resources whatsoever.
WMCP cites Opinion No. 75, s. 1987,[256] and Opinion No. 175, s. 1990[257] of the Secretary of Justice,
expressing the view that a financial or technical assistance agreement is no different in concept from the service
contract allowed under the 1973 Constitution. This Court is not, however, bound by this interpretation. When an
administrative or executive agency renders an opinion or issues a statement of policy, it merely interprets a pre-
existing law; and the administrative interpretation of the law is at best advisory, for it is the courts that finally
determine what the law means.[258]
In any case, the constitutional provision allowing the President to enter into FTAAs with foreign-owned corporations
is an exception to the rule that participation in the nations natural resources is reserved exclusively to Filipinos.
Accordingly, such provision must be construed strictly against their enjoyment by non-Filipinos. As Commissioner
Villegas emphasized, the provision is very restrictive.[259] Commissioner Nolledo also remarked that entering into
service contracts is an exception to the rule on protection of natural resources for the interest of the nation and,
therefore, being an exception, it should be subject, whenever possible, to stringent rules.[260] Indeed, exceptions
should be strictly but reasonably construed; they extend only so far as their language fairly warrants and all doubts
should be resolved in favor of the general provision rather than the exception.[261]
With the foregoing discussion in mind, this Court finds that R.A. No. 7942 is invalid insofar as said Act authorizes
service contracts. Although the statute employs the phrase financial and technical agreements in accordance with
the 1987 Constitution, it actually treats these agreements as service contracts that grant beneficial ownership to
foreign contractors contrary to the fundamental law.
Section 33, which is found under Chapter VI (Financial or Technical Assistance Agreement) of R.A. No. 7942 states:
SEC. 33. Eligibility. - Any qualified person with technical and financial capability to undertake large-scale exploration,
development, and utilization of mineral resources in the Philippines may enter into a financial or technical assistance
agreement directly with the Government through the Department. [ mphasis supplied.]
Exploration, as defined by R.A. No. 7942,
means the searching or prospecting for mineral resources by geological, geochemical or geophysical surveys,
remote sensing, test pitting, trending, drilling, shaft sinking, tunneling or any other means for the purpose of
determining the existence, extent, quantity and quality thereof and the feasibility of mining them for profit.[262]
A legally organized foreign-owned corporation may be granted an exploration permit,[263] which vests it with the
right to conduct exploration for all minerals in specified areas,[264] i.e., to enter, occupy and explore the same.[265]
Eventually, the foreign-owned corporation, as such permittee, may apply for a financial and technical assistance
agreement.[266]
Development is
the work undertaken to explore and prepare an ore body or a mineral deposit for mining, including the construction
of necessary infrastructure and related facilities.[267]
Utilization means the extraction or disposition of minerals.[268] A stipulation that the proponent shall dispose of
the minerals and byproducts produced at the highest price and more advantageous terms and conditions as
provided for under the implementing rules and regulations is required to be incorporated in every FTAA.[269]
A foreign-owned/-controlled corporation may likewise be granted a mineral processing permit.[270] Mineral

processing is the milling, beneficiation or upgrading of ores or minerals and rocks or by similar means to convert
the same into marketable products.[271]
An FTAA contractor makes a warranty that the mining operations shall be conducted in accordance with the
provisions of R.A. No. 7942 and its implementing rules[272] and for work programs and minimum expenditures and
commitments.[273] And it obliges itself to furnish the Government records of geologic, accounting, and other
relevant data for its mining operation.[274]
Mining operation, as the law defines it, means mining activities involving exploration, feasibility, development,
utilization, and processing.[275]
The underlying assumption in all these provisions is that the foreign contractor manages the mineral resources, just
like the foreign contractor in a service contract.
Furthermore, Chapter XII of the Act grants foreign contractors in FTAAs the same auxiliary mining rights that it
grants contractors in mineral agreements (MPSA, CA and JV).[276] Parenthetically, Sections 72 to 75 use the term
contractor, without distinguishing between FTAA and mineral agreement contractors. And so does holders of
mining rights in Section 76. A foreign contractor may even convert its FTAA into a mineral agreement if the
economic viability of the contract area is found to be inadequate to justify large-scale mining operations,[277]
provided that it reduces its equity in the corporation, partnership, association or cooperative to forty percent (40%).
[278]
Finally, under the Act, an FTAA contractor warrants that it has or has access to all the financing, managerial, and
technical expertise. . . .[279] This suggests that an FTAA contractor is bound to provide some management
assistance a form of assistance that has been eliminated and, therefore, proscribed by the present Charter.
By allowing foreign contractors to manage or operate all the aspects of the mining operation, the above-cited
provisions of R.A. No. 7942 have in effect conveyed beneficial ownership over the nations mineral resources to
these contractors, leaving the State with nothing but bare title thereto.
Moreover, the same provisions, whether by design or inadvertence, permit a circumvention of the constitutionally
ordained 60%-40% capitalization requirement for corporations or associations engaged in the exploitation,
development and utilization of Philippine natural resources.
In sum, the Court finds the following provisions of R.A. No. 7942 to be violative of Section 2, Article XII of the
Constitution:
(1) The proviso in Section 3 (aq), which defines qualified person, to wit:
Provided, That a legally organized foreign-owned corporation shall be deemed a qualified person for purposes of
granting an exploration permit, financial or technical assistance agreement or mineral processing permit.
(2) Section 23,[280] which specifies the rights and obligations of an exploration permittee, insofar as said
section applies to a financial or technical assistance agreement,
(3) Section 33, which prescribes the eligibility of a contractor in a financial or technical assistance agreement;
(4) Section 35,[281] which enumerates the terms and conditions for every financial or technical assistance
agreement;
(5) Section 39,[282] which allows the contractor in a financial and technical assistance agreement to convert
the same into a mineral production-sharing agreement;
(6) Section 56,[283] which authorizes the issuance of a mineral processing permit to a contractor in a
financial and technical assistance agreement;
The following provisions of the same Act are likewise void as they are dependent on the foregoing provisions and
cannot stand on their own:
(1) Section 3 (g),[284] which defines the term contractor, insofar as it applies to a financial or technical
assistance agreement.
Section 34,[285] which prescribes the maximum contract area in a financial or technical assistance agreements;
Section 36,[286] which allows negotiations for financial or technical assistance agreements;
Section 37,[287] which prescribes the procedure for filing and evaluation of financial or technical assistance
agreement proposals;
Section 38,[288] which limits the term of financial or technical assistance agreements;
Section 40,[289] which allows the assignment or transfer of financial or technical assistance agreements;
Section 41,[290] which allows the withdrawal of the contractor in an FTAA;
The second and third paragraphs of Section 81,[291] which provide for the Governments share in a financial and
technical assistance agreement; and
Section 90,[292] which provides for incentives to contractors in FTAAs insofar as it applies to said contractors;
When the parts of the statute are so mutually dependent and connected as conditions, considerations, inducements,
or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that if all
could not be carried into effect, the legislature would not pass the residue independently, then, if some parts are
unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them.[293]
There can be little doubt that the WMCP FTAA itself is a service contract.
Section 1.3 of the WMCP FTAA grants WMCP the exclusive right to explore, exploit, utilise[,] process and dispose
of all Minerals products and by-products thereof that may be produced from the Contract Area.[294] The FTAA also
imbues WMCP with the following rights:
(b) to extract and carry away any Mineral samples from the Contract area for the purpose of conducting tests and
studies in respect thereof;
(c) to determine the mining and treatment processes to be utilised during the Development/Operating Period and
the project facilities to be constructed during the Development and Construction Period;
(d) have the right of possession of the Contract Area, with full right of ingress and egress and the right to occupy
the same, subject to the provisions of Presidential Decree No. 512 (if applicable) and not be prevented from entry
into private ands by surface owners and/or occupants thereof when prospecting, exploring and exploiting for
minerals therein;
xxx
(f) to construct roadways, mining, drainage, power generation and transmission facilities and all other types of
works on the Contract Area;
(g) to erect, install or place any type of improvements, supplies, machinery and other equipment relating to the
Mining Operations and to use, sell or otherwise dispose of, modify, remove or diminish any and all parts thereof;
(h) enjoy, subject to pertinent laws, rules and regulations and the rights of third Parties, easement rights and the
use of timber, sand, clay, stone, water and other natural resources in the Contract Area without cost for the purposes
of the Mining Operations;
xxx
(l) have the right to mortgage, charge or encumber all or part of its interest and obligations under this Agreement,
the plant, equipment and infrastructure and the Minerals produced from the Mining Operations;
x x x. [295]
All materials, equipment, plant and other installations erected or placed on the Contract Area remain the property of
WMCP, which has the right to deal with and remove such items within twelve months from the termination of the
FTAA.[296]
Pursuant to Section 1.2 of the FTAA, WMCP shall provide [all] financing, technology, management and personnel
necessary for the Mining Operations. The mining company binds itself to perform all Mining Operations . . .
providing all necessary services, technology and financing in connection therewith,[297] and to furnish all
materials, labour, equipment and other installations that may be required for carrying on all Mining Operations.[298]
WMCP may make expansions, improvements and replacements of the mining facilities and may add such new
facilities as it considers necessary for the mining operations.[299]
These contractual stipulations, taken together, grant WMCP beneficial ownership over natural resources that
properly belong to the State and are intended for the benefit of its citizens. These stipulations are abhorrent to the
1987 Constitution. They are precisely the vices that the fundamental law seeks to avoid, the evils that it aims to
suppress. Consequently, the contract from which they spring must be struck down.
In arguing against the annulment of the FTAA, WMCP invokes the Agreement on the Promotion and Protection of
Investments between the Philippine and Australian Governments, which was signed in Manila on January 25, 1995
and which entered into force on December 8, 1995.
x x x. Article 2 (1) of said treaty states that it applies to investments whenever made and thus the fact that
[WMCPs] FTAA was entered into prior to the entry into force of the treaty does not preclude the Philippine
Government from protecting [WMCPs] investment in [that] FTAA. Likewise, Article 3 (1) of the treaty provides that
Each Party shall encourage and promote investments in its area by investors of the other Party and shall [admit]
such investments in accordance with its Constitution, Laws, regulations and investment policies and in Article 3 (2),
it states that Each Party shall ensure that investments are accorded fair and equitable treatment. The latter
stipulation indicates that it was intended to impose an obligation upon a Party to afford fair and equitable treatment
to the investments of the other Party and that a failure to provide such treatment by or under the laws of the Party
may constitute a breach of the treaty. Simply stated, the Philippines could not, under said treaty, rely upon the
inadequacies of its own laws to deprive an Australian investor (like [WMCP]) of fair and equitable treatment by
invalidating [WMCPs] FTAA without likewise nullifying the service contracts entered into before the enactment of RA
7942 such as those mentioned in PD 87 or EO 279.
This becomes more significant in the light of the fact that [WMCPs] FTAA was executed not by a mere Filipino
citizen, but by the Philippine Government itself, through its President no less, which, in entering into said treaty is
assumed to be aware of the existing Philippine laws on service contracts over the exploration, development and
utilization of natural resources. The execution of the FTAA by the Philippine Government assures the Australian
Government that the FTAA is in accordance with existing Philippine laws.[300] [Emphasis and italics by private
respondents.]
The invalidation of the subject FTAA, it is argued, would constitute a breach of said treaty which, in turn, would
amount to a violation of Section 3, Article II of the Constitution adopting the generally accepted principles of
international law as part of the law of the land. One of these generally accepted principles is pacta sunt servanda,
which requires the performance in good faith of treaty obligations.
Even assuming arguendo that WMCP is correct in its interpretation of the treaty and its assertion that the
Philippines could not . . . deprive an Australian investor (like [WMCP]) of fair and equitable treatment by invalidating
[WMCPs] FTAA without likewise nullifying the service contracts entered into before the enactment of RA 7942 . . .,
the annulment of the FTAA would not constitute a breach of the treaty invoked. For this decision herein invalidating
the subject FTAA forms part of the legal system of the Philippines.[301] The equal protection clause[302] guarantees
that such decision shall apply to all contracts belonging to the same class, hence, upholding rather than violating,
the fair and equitable treatment stipulation in said treaty.
One other matter requires clarification. Petitioners contend that, consistent with the provisions of Section 2, Article
XII of the Constitution, the President may enter into agreements involving either technical or financial assistance
only. The agreement in question, however, is a technical and financial assistance agreement.
Petitioners contention does not lie. To adhere to the literal language of the Constitution would lead to absurd
consequences.[303] As WMCP correctly put it:
x x x such a theory of petitioners would compel the government (through the President) to enter into contract with
two (2) foreign-owned corporations, one for financial assistance agreement and with the other, for technical
assistance over one and the same mining area or land; or to execute two (2) contracts with only one foreign-owned
corporation which has the capability to provide both financial and technical assistance, one for financial assistance
and another for technical assistance, over the same mining area. Such an absurd result is definitely not sanctioned
under the canons of constitutional construction.[304] [Underscoring in the original.]
Surely, the framers of the 1987 Charter did not contemplate such an absurd result from their use of either/or. A
constitution is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd
consequences, if possible, should be avoided.[305] Courts are not to give words a meaning that would lead to
absurd or unreasonable consequences and a literal interpretation is to be rejected if it would be unjust or lead to
absurd results.[306] That is a strong argument against its adoption.[307] Accordingly, petitioners interpretation must
be rejected.
The foregoing discussion has rendered unnecessary the resolution of the other issues raised by the petition.
WHEREFORE, the petition is GRANTED. The Court hereby declares unconstitutional and void:
(1) The following provisions of Republic Act No. 7942:
(a) The proviso in Section 3 (aq),
(b) Section 23,
(c) Section 33 to 41,
(d) Section 56,
(e) The second and third paragraphs of Section 81, and
(f) Section 90.
(2) All provisions of Department of Environment and Natural Resources Administrative Order 96-40, s. 1996 which
are not in conformity with this Decision, and
(3) The Financial and Technical Assistance Agreement between the Government of the Republic of the Philippines
and WMC Philippines, Inc.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Carpio, Corona, Callejo, Sr., and Tinga. JJ., concur.
Vitug, J., see Separate Opinion.

Panganiban, J., see Separate Opinion.
Ynares-Santiago, Sandoval-Gutierrez and Austria-Martinez, JJ., joins J. Panganibans separate opinion.
Azcuna, no part, one of the parties was a client.
Tano v. Socrates
EN BANC
[G.R. No. 110249. August 21, 1997]

ALFREDO TANO, BALDOMERO TANO, DANILO TANO, ROMUALDO TANO, TEOCENES MIDELLO, ANGEL DE
MESA, EULOGIO TREMOCHA, FELIPE ONGONION, JR., ANDRES LINIJAN, ROBERT LIM, VIRGINIA
LIM, FELIMON DE MESA, GENEROSO ARAGON, TEODORICO ANDRE, ROMULO DEL ROSARIO,
CHOLITO ANDRE, ERICK MONTANO, ANDRES OLIVA, VITTORIO SALVADOR, LEOPOLDO ARAGON,
RAFAEL RIBA, ALEJANDRO LEONILA, JOSE DAMACINTO, RAMIRO MANAEG, RUBEN MARGATE,
ROBERTO REYES, DANILO PANGARUTAN, NOE GOLPAN,ESTANISLAO ROMERO, NICANOR
DOMINGO, ROLDAN TABANG, PANGANIBAN, ADRIANO TABANG, FREDDIE SACAMAY, MIGUEL
TRIMOCHA, PACENCIO LABABIT, PABLO H. OMPAD, CELESTINO A. ABANO, ALLAN ALMODAL,
BILLY D. BARTOLAY, ALBINO D. LIQUE, MELCHOR J. LAYSON, MELANI AMANTE, CLARO E. YATOC,
MERGELDO B. BALDEO, EDGAR M. ALMASET A., JOSELITO MANAEG, LIBERATO ANDRADA, JR.,
ROBERTO BERRY, RONALD VILLANUEVA, EDUARDO VALMORIA, WILDREDO MENDOZA,
NAPOLEON BABANGA, ROBERTO TADEPA, RUBEN ASINGUA, SILVERIO GABO, JERRY ROMERO,
DAVID PANGAGARUTAN, DANIEL PANGGARUTAN, ROMEO AGAWIN, FERNANDO EQUIZ, DITO
LEQUIZ, RONILO ODERABLE, BENEDICTO TORRES, ROSITO A. VALDEZ, CRESENCIO A. SAYANG,
NICOMEDES S. ACOSTA, ERENEO A. SEGARINO, JR., WILDREDO A. RAUTO, DIOSDADO A.
ACOSTA, BONIFACIO G. SISMO, TACIO ALUBA, DANIEL B. BATERZAL, ELISEO YBAEZ,
DIOSDADO E. HANCHIC, EDDIE ESCALICAS, ELEAZAR B. BATERZAL, DOMINADOR HALICHIC,
ROOSEVELT RISMO-AN, ROBERT C. MERCADER, TIRSO ARESGADO, DANIEL CHAVEZ, DANILO
CHAVEZ, VICTOR VILLAROEL, ERNESTO C. YABANEZ, ARMANDO T. SANTILLAN, RUDY S.
SANTILLAN, JODJEN ILUSTRISIMO, NESTOR SALANGRON, ALBERTO SALANGRON, ROGER L.
ROXAS, FRANCISCO T. ANTICANO, PASTOR SALANGRON, BIENVENIDO SANTILLAN, GILBUENA
LADDY, FIDEL BENJAMIN JOVELITO BELGANO, HONEY PARIOL, ANTONIO SALANGRON, NICASIO
SALANGRON, & AIRLINE SHIPPERS ASSOCIATION OF PALAWAN,petitioners, vs. GOV. SALVADOR
P. SOCRATES, MEMBERS OF SANGGUNIAN PANLALAWIGAN OF PALAWAN, namely, VICE-
GOVERNOR JOEL T. REYES, JOSE D. ZABALA, ROSALINO R. ACOSTA, JOSELITO A. CADLAON,
ANDRES R. BAACO, NELSON P. PENEYRA, CIPRIANO C. BARROMA, CLARO E. ORDINARIO,
ERNESTO A. LLACUN, RODOLFO C. FLORDELIZA, GILBERT S. BAACO, WINSTON G. ARZAGA,
NAPOLEON F. ORDONEZ and GIL P. ACOSTA, CITY MAYOR EDWARD HAGEDORN, MEMBERS OF
SANGGUNIANG PANLUNGSOD NG PUERTO PRINCESA, ALL MEMBERS OF BANTAY DAGAT,
MEMBERS OF PHILIPPINE NATIONAL POLICE OF PALAWAN, PROVINCIAL AND CITY
PROSECUTORS OF PALAWAN and PUERTO PRINCESA CITY, and ALL JUDGES OF PALAWAN,
REGIONAL, MUNICIPAL AND METROPOLITAN, respondents.
DECISION
DAVIDE, JR., J.:
Petitioners caption their petition as one for Certiorari, Injunction With Preliminary Mandatory Injunction,with
Prayer for Temporary Restraining Order and pray that this Court: (1) declare as unconstitutional: (a) Ordinance No.
15-92, dated 15 December 1992, of theSangguniang Panlungsod of Puerto Princesa; (b) Office Order No. 23,
Series of 1993, dated 22 January 1993, issued by Acting City Mayor Amado L. Lucero of Puerto Princesa City; and
(c) Resolution No. 33, Ordinance No. 2, Series of 1993, dated 19 February 1993, of the Sangguniang
Panlalawigan of Palawan; (2) enjoin the enforcement thereof; and (3) restrain respondents Provincial and City
Prosecutors of Palawan and Puerto Princesa City and Judges of Regional Trial Courts, Metropolitan Trial
Courts[1] and Municipal Circuit Trial Courts in Palawan from assuming jurisdiction over and hearing cases concerning
the violation of the Ordinances and of the Office Order.
More appropriately, the petition is, and shall be treated as, a special civil action for certiorari and prohibition.
The following is petitioners summary of the factual antecedents giving rise to the petition:
1. On December 15, 1992, the Sangguniang Panlungsod ng Puerto Princesa City enacted Ordinance No. 15-92
which took effect on January 1, 1993 entitled: AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH
AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998 AND
PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF, the full text of which reads
as follows:
Section 1. Title of the Ordinance. - This Ordinance is entitled: AN ORDINANCE BANNING THE SHIPMENT OF
ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1,
1998 AND PROVIDING EXEMPTIONS, PENALTIES AND FOR OTHER PURPOSES THEREOF.
Section 2. Purpose, Scope and Coverage. - To effectively free our City Sea Waters from Cyanide and other
Obnoxious substance, and shall cover all persons and/or entities operating within and outside the City of Puerto
Princesa who is are [sic] directly or indirectly in the business or shipment of live fish and lobster outside the City.
Section 3. Definition of terms. - For purpose of this Ordinance the following are hereby defined:
A. SEA BASS - A kind of fish under the family of Centropomidae, better known as APAHAP;
B. CATFISH - A kind of fish under the family of Plotosidae, better known as HITO-HITO;
C. MUDFISH - A kind of fish under the family of Orphicaphalisae better known as DALAG
D. ALL LIVE FISH - All alive, breathing not necessarily moving of all specie[s] use for food and for aquarium
purposes.
E. LIVE LOBSTER - Several relatively, large marine crustaceans of the genus Homarus that are alive and breathing
not necessarily moving.
Section 4. It shall be unlawful [for] any person or any business enterprise or company to ship out from Puerto
Princesa City to any point of destination either via aircraft or seacraft of any live fish and lobster except SEA BASS,
CATFISH, MUDFISH, AND MILKFISH FRIES.
Section 5. Penalty Clause. - Any person/s and or business entity violating this Ordinance shall be penalized with a
fine of not more than P5,000.00 or imprisonment of not more than twelve (12) months, cancellation of their permit to
do business in the City of Puerto Princesa or all of the herein stated penalties, upon the discretion of the court.
Section 6. If the owner and/or operator of the establishment found vilating the provisions of this ordinance is a
corporation or a partnership, the penalty prescribed in Section 5 hereof shall be imposed upon its president and/or
General Manager or Managing Partner and/or Manager, as the case maybe [sic].
Section 7. Any existing ordinance or any provision of any ordinance inconsistent to [sic] this ordinance is deemed
repealed.
Section 8. This Ordinance shall take effect on January 1, 1993.
SO ORDAINED.
xxx
2. To implement said city ordinance, then Acting City Mayor Amado L. Lucero issued Office Order No. 23, Series
of 1993 dated January 22, 1993 which reads as follows:
In the interest of public service and for purposes of City Ordinance No. PD426-14-74, otherwise known as AN
ORDINANCE REQUIRING ANY PERSON ENGAGED OR INTENDING TO ENGAGE IN ANY BUSINESS, TRADE,
OCCUPATION, CALLING OR PROFESSION OR HAVING IN HIS POSSESSION ANY OF THE ARTICLES FOR
WHICH A PERMIT IS REQUIRED TO BE HAD, TO OBTAIN FIRST A MAYORS PERMIT and City Ordinance No.
15-92, AN ORDINANCE BANNING THE SHIPMENT OF ALL LIVE FISH AND LOBSTER OUTSIDE PUERTO
PRINCESA CITY FROM JANUARY 1, 1993 TO JANUARY 1, 1998, you are hereby authorized and directed to
check or conduct necessary inspections on cargoes containing live fish and lobster being shipped out from the
Puerto Princesa Airport, Puerto Princesa Wharf or at any port within the jurisdiction of the City to any point of
destinations [sic] either via aircraft or seacraft.
The purpose of the inspection is to ascertain whether the shipper possessed the required Mayors Permit issued by
this Office and the shipment is covered by invoice or clearance issued by the local office of the Bureau of Fisheries
and Aquatic Resources and as to compliance with all other existing rules and regulations on the matter.
Any cargo containing live fish and lobster without the required documents as stated herein must be held for proper
disposition.
In the pursuit of this Order, you are hereby authorized to coordinate with the PAL Manager, the PPA Manager, the
local PNP Station and other offices concerned for the needed support and cooperation. Further, that the usual
courtesy and diplomacy must be observed at all times in the conduct of the inspection.
Please be guided accordingly.

xxx
3. On February 19, 1993, the Sangguniang Panlalawigan, Provincial Government of Palawan enacted
Resolution No. 33 entitled: A RESOLUTION PROHIBITING THE CATCHING, GATHERING, POSSESSING,
BUYING, SELLING AND SHIPMENT OF LIVE MARINE CORAL DWELLING AQUATIC ORGANISMS, TO WIT:
FAMILY: SCARIDAE (MAMENG), EPINE PHELUS FASCIATUS (SUNO). CROMILEPTES ALTIVELIS(PANTHER
OR SENORITA), LOBSTER BELOW 200 GRAMS AND SPAWNING, TRADACNA GIGAS (TAKLOBO), PINCTADA
MARGARITEFERA(MOTHER PEARL, OYSTERS, GIANT CLAMS AND OTHER SPECIES), PENAEUS
MONODON (TIGER PRAWN-BREEDER SIZE OR MOTHER),EPINEPHELUS SUILLUS (LOBA OR GREEN
GROUPER) AND FAMILY: BALISTIDAE (TROPICAL AQUARIUM FISHES) FOR A PERIOD FIVE (5) YEARS IN
AND COMING FROM PALAWAN WATERS, the full text of which reads as follows:
WHEREAS, scientific and factual researches [sic] and studies disclose that only five (5) percent of the corals of our
province remain to be in excellent condition as [a] habitat of marine coral dwelling aquatic organisms;
WHEREAS, it cannot be gainsaid that the destruction and devastation of the corals of our province were principally
due to illegal fishing activities like dynamite fishing, sodium cyanide fishing, use of other obnoxious substances and
other related activities;
WHEREAS, there is an imperative and urgent need to protect and preserve the existence of the remaining excellent
corals and allow the devastated ones to reinvigorate and regenerate themselves into vitality within the span of five
(5) years;
WHEREAS, Sec. 468, Par. 1, Sub-Par. VI of the [sic] R.A. 7160 otherwise known as the Local Government Code of
1991 empowers the Sangguniang Panlalawigan to protect the environment and impose appropriate penalties [upon]
acts which endanger the environment such as dynamite fishing and other forms of destructive fishing, among
others.
NOW, THEREFORE, on motion by Kagawad Nelson P. Peneyra and upon unanimous decision of all the members
present;
Be it resolved as it is hereby resolved, to approve Resolution No. 33, Series of 1993 of the Sangguniang
Panlalawigan and to enact Ordinance No. 2 for the purpose, to wit:
ORDINANCE NO. 2
Series of 1993
BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN SESSION ASSEMBLED:
Section 1. TITLE - This Ordinance shall be known as an Ordinance Prohibiting the catching, gathering,
possessing, buying, selling and shipment of live marine coral dwelling aquatic organisms, to wit: 1. Family: Scaridae
(Mameng), 2. Epinephelus Fasciatus (Suno), 3. Cromileptes altivelis (Panther or Senorita), lobster below 200 grams
and spawning), 4. Tridacna Gigas (Taklobo), 5. Pinctada Margaretefera (Mother Pearl, Oysters, Giant Clams and
other species), 6. Penaeus Monodon (Tiger Prawn-breeder size or mother), 7. Epinephelus Suillus (Loba or Green
Grouper) and 8. Family: Balistidae (Topical Aquarium Fishes) for a period of five (5) years in and coming from
Palawan Waters.
Section II. PRELIMINARY CONSIDERATIONS
1. Sec. 2-A (Rep. Act 7160). It is hereby declared, the policy of the state that the territorial and political subdivisions
of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as
self reliant communities and make them more effective partners in the attainment of national goals. Toward this
end, the State shall provide for [a] more responsive and accountable local government structure instituted through a
system of decentralization whereby local government units shall be given more powers, authority, responsibilities
and resources.
2. Sec. 5-A (R.A. 7160). Any provision on a power of [a] local Government Unit shall be liberaly interpreted in its
favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower
government units. Any fair and reasonable doubts as to the existence of the power shall be interpreted in favor of
the Local Government Unit concerned.
3. Sec. 5-C (R.A. 7160). The general welfare provisions in this Code shall be liberally interpreted to give more
powers to local government units in accelerating economic development and upgrading the quality of life for the
people in the community.
4. Sec. 16 (R.A. 7160). General Welfare. - Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient
and effective governance; and those which are essential to the promotion of the general welfare.
Section III. DECLARATION OF POLICY. - It is hereby declared to be the policy of the Province of Palawan to
protect and conserve the marine resources of Palawan not only for the greatest good of the majority of the present
generation but with [the] proper perspective and consideration of [sic] their prosperity, and to attain this end, the
Sangguniang Panlalawigan henceforth declares that is [sic] shall be unlawful for any person or any business entity
to engage in catching, gathering, possessing, buying, selling and shipment of live marine coral dwelling aquatic
organisms as enumerated in Section 1 hereof in and coming out of Palawan Waters for a period of five (5) years;
Section IV. PENALTY CLAUSE. - Any person and/or business entity violating this Ordinance shall be penalized with
a fine of not more than Five Thousand Pesos (P5,000.00), Philippine Currency, and/or imprisonment of six (6)
months to twelve (12) months and confiscation and forfeiture of paraphernalias [sic] and equipment in favor of the
government at the discretion of the Court;
Section V. SEPARABILITY CLAUSE. - If for any reason, a Section or provision of this Ordinance shall be held as
unconditional [sic] or invalid, it shall not affect the other provisions hereof.
Section VI. REPEALING CLAUSE. - Any existing Ordinance or a provision of any ordinance inconsistent herewith is
deemed modified, amended or repealed.
Section VII. EFFECTIVITY. - This Ordinance shall take effect ten (10) days after its publication.
SO ORDAINED.
xxx
4. The respondents implemented the said ordinances, Annexes A and C hereof thereby depriving all the
fishermen of the whole province of Palawan and the City of Puerto Princesa of their only means of livelihood and the
petitioners Airline Shippers Association of Palawan and other marine merchants from performing their lawful
occupation and trade;
5. Petitioners Alfredo Tano, Baldomero Tano, Teocenes Midello, Angel de Mesa, Eulogio Tremocha, and Felipe
Ongonion, Jr. were even charged criminally under criminal case no. 93-05-C in the 1st Municipal Circuit Trial Court
of Cuyo-Agutaya-Magsaysay, an original carbon copy of the criminal complaint dated April 12, 1993 is hereto
attached as Annex D; while xerox copies are attached as Annex D to the copies of the petition;
6. Petitioners Robert Lim and Virginia Lim, on the other hand, were charged by the respondent PNP with the
respondent City Prosecutor of Puerto Princesa City, a xerox copy of the complaint is hereto attached as Annex E;
Without seeking redress from the concerned local government units, prosecutors office and courts, petitioners
directly invoked our original jurisdiction by filing this petition on 4 June 1993. In sum, petitioners contend that:
First, the Ordinances deprived them of due process of law, their livelihood, and unduly restricted them from the
practice of their trade, in violation of Section 2, Article XII and Sections 2 and 7 of Article XIII of the 1987
Constitution.
Second, Office Order No. 23 contained no regulation nor condition under which the Mayors permit could be
granted or denied; in other words, the Mayor had the absolute authority to determine whether or not to issue permit.
Third, as Ordinance No. 2 of the Province of Palawan altogether prohibited the catching, gathering,
possession, buying, selling and shipping of live marine coral dwelling organisms, without any distinction whether it
was caught or gathered through lawful fishing method, the Ordinance took away the right of petitioners-fishermen
to earn their livelihood in lawful ways; and insofar as petitioners-members of Airline Shippers Association are
concerned, they were unduly prevented from pursuing their vocation and entering into contracts which are proper,
necessary, and essential to carry out their business endeavors to a successful conclusion.
Finally, as Ordinance No. 2 of the Sangguniang Panlalawigan is null and void, the criminal cases based thereon
against petitioners Tano and the others have to be dismissed.
In the Resolution of 15 June 1993 we required respondents to comment on the petition, and furnished the
Office of the Solicitor General with a copy thereof.
In their comment filed on 13 August 1993, public respondents Governor Socrates and Members of the
Sangguniang Panlalawigan of Palawan defended the validity of Ordinance No.2, Series of 1993, as a valid exercise
of the Provincial Governments power under the general welfare clause (Section 16 of the Local Government Code
of 1991 [hereafter, LGC]), and its specific power to protect the environment and impose appropriate penalties for
acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing under Section
447 (a) (1) (vi), Section 458 (a) (1) (vi), and Section 468 (a) (1) (vi), of the LGC. They claimed that in the exercise of
such powers, the Province of Palawan had the right and responsibilty to insure that the remaining coral reefs,
where fish dwells [sic], within its territory remain healthy for the future generation. The Ordinance, they further
asserted, covered only live marine coral dwelling aquatic organisms which were enumerated in the ordinance and
excluded other kinds of live marine aquatic organisms not dwelling in coral reefs; besides the prohibition was for
only five (5) years to protect and preserve the pristine coral and allow those damaged to regenerate.
Aforementioned respondents likewise maintained that there was no violation of due process and equal
protection clauses of the Constitution. As to the former, public hearings were conducted before the enactment of the
Ordinance which, undoubtedly, had a lawful purpose and employed reasonable means; while as to the latter, a
substantial distinction existed between a fisherman who catches live fish with the intention of selling it live, and a
fisherman who catches live fish with no intention at all of selling it live, i.e., the former uses sodium cyanide while
the latter does not. Further, the Ordinance applied equally to all those belonging to one class.
On 25 October 1993 petitioners filed an Urgent Plea for the Immediate Issuance of a Temporary Restraining
Order claiming that despite the pendency of this case, Branch 50 of the Regional Trial Court of Palawan was bent
on proceeding with Criminal Case No. 11223 against petitioners Danilo Tano, Alfredo Tano, Eulogio Tremocha,
Romualdo Tano, Baldomero Tano, Andres Lemihan and Angel de Mesa for violation of Ordinance No. 2 of the
Sangguniang Panlalawigan of Palawan. Acting on said plea, we issued on 11 November 1993 a temporary
restraining order directing Judge Angel Miclat of said court to cease and desist from proceeding with the
arraignment and pre-trial of Criminal Case No. 11223.
On 12 July 1994, we excused the Office of the Solicitor General from filing a comment, considering that as
claimed by said office in its Manifestation of 28 June 1994, respondents were already represented by counsel.
The rest of the respondents did not file any comment on the petition.
In the resolution of 15 September 1994, we resolved to consider the comment on the petition as the Answer,
gave due course to the petition and required the parties to submit their respective memoranda. [2]
On 22 April 1997 we ordered impleaded as party respondents the Department of Agriculture and the Bureau of
Fisheries and Aquatic Resources and required the Office of the Solicitor General to comment on their behalf. But in
light of the latters motion of 9 July 1997 for an extension of time to file the comment which would only result in
further delay, we dispensed with said comment.
After due deliberation on the pleadings filed, we resolved to dismiss this petition for want of merit, on 22 July
1997, and assigned it to theponente for the writing of the opinion of the Court.
I
There are actually two sets of petitioners in this case. The first is composed of Alfredo Tano, Baldomero Tano,
Danilo Tano, Romualdo Tano, Teocenes Midello, Angel de Mesa, Eulogio Tremocha, Felipe Ongonion, Jr., Andres
Linijan, and Felimon de Mesa, who were criminally charged with violating Sangguniang Panlalawigan Resolution
No. 33 and Ordinance No. 2, Series of 1993, of the Province of Palawan, in Criminal Case No. 93-05-C of the
1st Municipal Circuit Trial Court (MCTC) of Palawan; [3] and Robert Lim and Virginia Lim who were charged with
violating City Ordinance No. 15-92 of Puerto Princesa City and Ordinance No. 2, Series of 1993, of the Province of
Palawan before the Office of the City Prosecutor of Puerto Princesa. [4] All of them, with the exception of Teocenes
Midello, Felipe Ongonion, Jr., Felimon de Mesa, Robert Lim and Virginia Lim, are likewise the accused in Criminal
Case No. 11223 for the violation of Ordinance No. 2 of the Sangguniang Panlalawigan of Palawan, pending before
Branch 50 of the Regional Trial Court of Palawan.[5]
The second set of petitioners is composed of the rest of the petitioners numbering seventy-seven (77), all of
whom, except the Airline Shippers Association of Palawan -- an alleged private association of several marine
merchants -- are natural persons who claim to be fishermen.
The primary interest of the first set of petitioners is, of course, to prevent the prosecution, trial and
determination of the criminal cases until the constitutionality or legality of the Ordinances they allegedly violated
shall have been resolved. The second set of petitioners merely claim that they being fishermen or marine
merchants, they would be adversely affected by the ordinances.
As to the first set of petitioners, this special civil for certiorari must fail on the ground of prematurity amounting
to a lack of cause of action. There is no showing that the said petitioners, as the accused in the criminal cases, have
filed motions to quash the informations therein and that the same were denied. The ground available for such
motions is that the facts charged therein do not constitute an offense because the ordinances in question are
unconstitutional.[6] It cannot then be said that the lower courts acted without or in excess of jurisdiction or with grave
abuse of discretion to justify recourse to the extraordinary remedy of certiorari or prohibition. It must further be
stressed that even if the petitioners did file motions to quash, the denial thereof would not forthwith give rise to a
cause of action under Rule 65 of the Rules of Court. The general rule is that where a motion to quash is denied, the
remedy therefrom is not certiorari, but for the party aggrieved thereby to go to trial without prejudice to reiterating
special defenses involved in said motion, and if, after trial on the merits of adverse decision is rendered, to appeal
therefrom in the manner authorized by law.[7] And , even where in an exceptional circumstance such denial may be
the subject of a special civil action for certiorari, a motion for reconsideration must have to be filed to allow the court
concerned an opportunity to correct its errors, unless such motion may be dispensed with because of existing
exceptional circumstances.[8] Finally, even if a motion for reconsideration has been filed and denied, the remedy
under Rule 65 is still unavailable absent any showing of the grounds provided for in Section 1 thereof. [9]For obvious
reasons, the petition at bar does not, and could not have , alleged any of such grounds.
As to the second set of petitioners, the instant petition is obviously one for DECLARATORY RELIEF, i.e., for a
declaration that the Ordinances in question are a nullity ... for being unconstitutional. [10] As such, their petition must
likewise fail, as this Court is not possessed of original jurisdiction over petitions for declaratory relief even if only
questions of law are involved,[11] it being settled that the Court merely exercises appellate jurisdiction over such
petitions.[12]
II
Even granting arguendo that the first set of petitioners have a cause of action ripe for the extraordinary writ
of certiorari, there is here a clear disregard of the hierarchy of courts, and no special and important reason or
exceptional or compelling circumstance has been adduced why direct recourse to us should be allowed. While we
have concurrent jurisdiction with Regional Trial courts and with the Court of Appeals to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence gives petitioners no
unrestricted freedom of choice of court forum, so we held in People v. Cuaresma:[13]
This concurrence of jurisdiction is not to be taken as according to parties seeking any of the writs an absolute
unrestrained freedom of choice of the court to which application therefor will be directed. There is after all hierarchy
of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant
of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most
certainly indicates that petitions for the issuance of extraordinary writs against first level (inferior) courts should be
filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the
Supreme Courts original jurisdiction to issue these writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy
necessary to prevent inordinate demands upon the Courts time and attention which are better devoted to those
matters within its exclusive jurisdiction, and to prevent further over-crowding of the Courts docket.
The Court feels the need to reaffirm that policy at this time, and to enjoin strict adherence thereto in the light of what
it perceives to be a growing tendency on the part of litigants and lawyers to have their applications for the so-called
extraordinary writs, and sometimes even their appeals, passed upon and adjudicated directly and immediately by
the highest tribunal of the land.
In Santiago v. Vasquez,[14] this Court forcefully expressed that the propensity of litigants and lawyers to
disregard the hierarchy of courts must be put to a halt, not only because of the imposition upon the precious time of
this Court, but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the
case which often has to be remanded or referred to the lower court, the proper forum under the rules of procedure,
or as better equipped to resolve the issues since this Court is not a trier of facts. We reiterated the judicial policy
that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate
courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the
exercise of [its] primary jurisdiction.
III
Notwithstanding the foregoing procedural obstacles against the first set of petitioners, we opt to resolve this
case on its merits considering that the lifetime of the challenged Ordinances is about to end. Ordinance No. 15-92 of
the City of Puerto Princesa is effective only up to 1 January 1998, while Ordinance No. 2 of the Province of
Palawan, enacted on 19 February 1993, is effective for only five (5) years. Besides, these Ordinances were
undoubtedly enacted in the exercise of powers under the new LGC relative to the protection and preservation of the
environment and are thus novel and of paramount importance. No further delay then may be allowed in the
resolution of the issues raised.
It is of course settled that laws (including ordinances enacted by local government units) enjoy the presumption
of constitutionality.[15] To overthrow this presumption, there must be a clear and unequivocal breach of the
Constitution, not merely a doubtful or argumentative contradiction. In short, the conflict with the Constitution must be
shown beyond reasonable doubt.[16] Where doubt exists, even if well founded, there can be no finding of
unconstitutionality. To doubt is to sustain.[17]
After a scrunity of the challenged Ordinances and the provisions of the Constitution petitioners claim to have
been violated, we find petitioners contentions baseless and so hold that the former do not suffer from any infirmity,
both under the Constitution and applicable laws.
Petitioners specifically point to Section 2, Article XII and Sections 2 and 7, Article XIII of the Constitution as
having been transgressed by the Ordinances.
The pertinent portion of Section 2 of Article XII reads:
SEC. 2. x x x
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic
cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
Sections 2 and 7 of Article XIII provide:
Sec. 2. The promotion of social justice shall include the commitment to create economic opportunities based on
freedom of initiative and self-reliance.
xxx
SEC. 7. 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.
There is absolutely no showing that any of the petitioners qualifies as a subsistence or marginal fisherman. In
their petition, petitioner Airline Shippers Association of Palawan is described as a private association composed of
Marine Merchants; petitioners Robert Lim and Virginia Lim, as merchants; while the rest of the petitioners claim to
be fishermen, without any qualification, however, as to their status.
Since the Constitution does not specifically provide a definition of the terms subsistence or marginal
fishermen,[18] they should be construed in their general and ordinary sense. A marginal fisherman is an individual
engaged in fishing whose margin of return or reward in his harvest of fish as measured by existing price levels is
barely sufficient to yield a profit or cover the cost of gathering the fish, [19] while asubsistence fisherman is one whose
catch yields but the irreducible minimum for his livelihood. [20] Section 131(p) of the LGC (R.A. No. 7160) defines
a marginal farmer or fisherman as an individual engaged in subsistence farming or fishing which shall be limited to
the sale, barter or exchange of agricultural or marine products produced by himself and his immediate family. It
bears repeating that nothing in the record supports a finding that any petitioner falls within these definitions.
Besides, Section 2 of Article XII aims primarily not to bestow any right to subsistence fishermen, but to lay
stress on the duty of the State to protect the nations marine wealth. What the provision merely recognizes is that
the State may allow, by law, cooperative fish farming, with priority to subsistence fishermen and fishworkers in
rivers, lakes, bays, and lagoons. Our survey of the statute books reveals that the only provision of law which speaks
of the preferential right of marginal fishermen is Section 149 of the LGC of 1991 which pertinently provides:
SEC. 149. Fishery Rentals, Fees and Charges. -- x x x
(b) The sangguniang bayan may:
(1) Grant fishery privileges to erect fish corrals, oyster, mussels or other aquatic beds or bangus fry areas, within
a definite zone of the municipal waters, as determined by it: Provided, however, That duly registered organizations
and cooperatives of marginal fishermen shall have preferential right to such fishery privileges ....
In a Joint Administrative Order No. 3, dated 25 April 1996, the Secretary of the Department of Agriculture and the
Secretary of the Department of Interior and Local Government prescribed the guidelines on the preferential
treatment of small fisherfolk relative to the fishery right mentioned in Section 149. This case, however, does not
involve such fishery right.
Anent Section 7 of Article XIII, it speaks not only of the use of communal marine and fishing resources, but of
their protection, development, and conservation. As hereafter shown, the ordinances in question are meant
precisely to protect and conserve our marine resources to the end that their enjoyment by the people may be
guaranteed not only for the present generation, but also for the generations to come.
The so-called preferential right of subsistence or marginal fishermen to the use of marine resources is not at
all absolute. In accordance with the Regalian Doctrine, marine resources belong to the State, and, pursuant to the
first paragraph of Section 2, Article XII of the Constitution, their exploration, development and utilization ... shall be
under the full control and supervision of the State. Moreover, their mandated protection, development, and
conservation as necessarily recognized by the framers of the Constitution, imply certain restrictions on whatever
right of enjoyment there may be in favor of anyone. Thus, as to the curtailment of the preferential treatment of
marginal fisherman, the following exchange between Commissioner Francisco Rodrigo and Commissioner Jose F.S.
Bengzon, Jr., took place at the plenary session of the Constitutional Commission:
MR. RODRIGO:
Let us discuss the implementation of this because I would not raise the hopes of our people, and
afterwards fail in the implementation. How will this be implemented? Will there be a licensing or giving of
permits so that government officials will know that one is really a marginal fisherman? Or if policeman say
that a person is not a marginal fisherman, he can show his permit, to prove that indeed he is one.
MR. BENGZON:
Certainly, there will be some mode of licensing insofar as this is concerned and this particular question
could be tackled when we discuss the Article on Local Governments -- whether we will leave to the local
governments or to Congress on how these things will be implemented. But certainly, I think our
Congressmen and our local officials will not be bereft of ideas on how to implement this mandate.
x x x
MR. RODRIGO:
So, once one is licensed as a marginal fisherman, he can go anywhere in the Philippines and fish in any
fishing grounds.
MR. BENGZON:
Subject to whatever rules and regulations and local laws that may be passed, may be existing or will be
passed.[21] (underscoring supplied for emphasis).
What must likewise be borne in mind is the state policy enshrined in the Constitution regarding the duty of the
State to protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm
and harmony of nature.[22] On this score, in Oposa v. Factoran,[23] this Court declared:
While the right to balanced and healthful ecology is to be found under the Declaration of Principles the 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 a correlative duty to refrain from impairing the
environment ...
The LGC provisions invoked by private respondents merely seek to give flesh and blood to the right of the
people to a balanced and healthful ecology. In fact, the General Welfare Clause, expressly mentions this right:
SEC. 16. General Welfare.-- Every local government unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment
of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support
the development of appropriate and self-reliant scientific and technological capabilities, improve public morals,
enhance economic prosperity and social justice, promote full employment among their residents, maintain peace
and order, and preserve the comfort and convenience of their inhabitants. (underscoring supplied).
Moreover, Section 5(c) of the LGC explicitly mandates that the general welfare provisions of the LGC shall be
liberally interpreted to give more powers to the local government units in accelerating economic development and
upgrading the quality of life for the people of the community.
The LGC vests municipalities with the power to grant fishery privileges in municipal waters and to impose
rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives, noxious or
poisonous substances, electricity, muro-ami, and other deleterious methods of fishing; and to prosecute any
violation of the provisions of applicable fishery laws. [24] Further, the sangguniang bayan, thesangguniang
panlungsod and the sangguniang panlalawigan are directed to enact ordinances for the general welfare of the
municipality and its inhabitants, which shall include, inter alia, ordinances that [p]rotect the environment and impose
appropriate penalties for acts which endanger the environment such as dynamite fishing and other forms of
destructive fishing ... and such other activities which result in pollution, acceleration of eutrophication of rivers and
lakes or of ecological imbalance.[25]
Finally, the centerpiece of LGC is the system of decentralization [26] as expressly mandated by the Constitution.
[27]
Indispensable thereto isdevolution and the LGC expressly provides that [a]ny provision on a power of a local
government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be
resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to
the existence of the power shall be interpreted in favor of the local government unit concerned, [28] Devolution refers
to the act by which the National Government confers power and authority upon the various local government units to
perform specific functions and responsibilities.[29]
One of the devolved powers enumerated in the section of the LGC on devolution is the enforcement of fishery
laws in municipal waters including the conservation of mangroves. [30] This necessarily includes enactment of
ordinances to effectively carry out such fishery laws within the municipal waters.
The term municipal waters, in turn, include not only streams, lakes, and tidal waters within the municipality,
not being the subject of private ownership and not comprised within the national parks, public forest, timber lands,
forest reserves, or fishery reserves, but also marine waters included between two lines drawn perpendicularly to the
general coastline from points where the boundary lines of the municipality or city touch the sea at low tide and a
third line parallel with the general coastline and fifteen kilometers from it. [31] Under P.D. No. 704, the marine waters
included in municipal waters is limited to three nautical miles from the general coastline using the above
perpendicular lines and a third parallel line.
These fishery laws which local government units may enforce under Section 17(b), (2), (i) in municipal waters
include: (1) P.D. No. 704; (2) P.D. No. 1015 which, inter alia, authorizes the establishment of a closed season in
any Philippine water if necessary for conservation or ecological purposes; (3) P.D. No. 1219 which provides for the
exploration, exploitation, utilization, and conservation of coral resources; (4) R.A. No. 5474, as amended by B.P. Blg.
58, which makes it unlawful for any person, association, or corporation to catch or cause to be caught, sell, offer to
sell, purchase, or have in possession any of the fish specie called gobiidae or ipon during closed season; and (5)
R.A. No. 6451 which prohibits and punishes electrofishing, as well as various issuances of the BFAR.
To those specifically devolved insofar as the control and regulation of fishing in municipal waters and the
protection of its marine environment are concerned, must be added the following:
1. Issuance of permits to construct fish cages within municipal waters;
2. Issuance of permits to gather aquarium fishes within municipal waters;
3. Issuance of permits to gather kapis shells within municipal waters;
4. Issuance of permits to gather/culture shelled mollusks within municipal waters;
5. Issuance of licenses to establish seaweed farms within municipal waters;
6. Issuance of licenses to establish culture pearls within municipal waters;
7. Issuance of auxiliary invoice to transport fish and fishery products; and
8. Establishment of closed season in municipal waters.
These functions are covered in the Memorandum of Agreement of 5 April 1994 between the Department of
Agriculture and the Department of Interior and Local Government.
In light then of the principles of decentralization and devolution enshrined in the LGC and the powers granted to
local government units under Section 16 (the General Welfare Clause), and under Sections 149, 447 (a) (1) (vi), 458
(a) (1) (vi) and 468 (a) (1) (vi), which unquestionably involve the exercise of police power, the validity of the
questioned Ordinances cannot be doubted.
Parenthetically, we wish to add that these Ordinances find full support under R.A. No. 7611, otherwise known
as the Strategic Environmental Plan (SEP) for Palawan Act, approved on 19 July 1992. This statute adopts a
comprehensive framework for the sustainable development of Palawan compatible with protecting and enhancing
the natural resources and endangered environment of the province, which shall serve to guide the local
government of Palawan and the government agencies concerned in the formulation and implementation of plans,
programs and projects affecting said province.[32]
At this time then, it would be appropriate to determine the relation between the assailed Ordinances and the
aforesaid powers of theSangguniang Panlungsod of the City of Puerto Princesa and the Sangguniang
Panlalawigan of the Province of Palawan to protect the environment. To begin, we ascertain the purpose of the
Ordinances as set forth in the statement of purposes or declaration of policies quoted earlier.
It is clear to the Court that both Ordinances have two principal objectives or purposes: (1) to establish a closed
season for the species of fish or aquatic animals covered therein for a period of five years, and (2) to protect the
corals of the marine waters of the City of Puerto Princesa and the Province of Palawan from further destruction due
to illegal fishing activities.
The accomplishment of the first objective is well within the devolved power to enforce fishery laws in municipal
waters, such as P.D. No. 1015, which allows the establishment of closed seasons. The devolution of such power
has been expressly confirmed in the Memorandum of Agreement of 5 April 1994 between the Department of
Agriculture and the Department of Interior and Local Government.
The realization of the second objective falls within both the general welfare clause of the LGC and the express
mandate thereunder to cities and provinces to protect the environment and impose appropriate penalties for acts
which endanger the environment.[33]
The destruction of the coral reefs results in serious, if not irreparable, ecological imbalance, for coral reefs are
among the natures life-support systems.[34] They collect, retain, and recycle nutrients for adjacent nearshore areas
such as mangroves, seagrass beds, and reef flats; provide food for marine plants and animals; and serve as a
protective shelter for aquatic organisms. [35] It is said that [e]cologically, the reefs are to the oceans what forests are
to continents: they are shelter and breeding grounds for fish and plant species that will disappear without them. [36]
The prohibition against catching live fish stems, in part, from the modern phenomenon of live-fish trade which
entails the catching of so-called exotic tropical species of fish not only for aquarium use in the West, but also for the
market for live banquet fish [which] is virtually insatiable in ever more affluent Asia. [37] These exotic species are
coral-dwellers, and fishermen catch them by diving in shallow water with corraline habitats and squirting sodium
cyanide poison at passing fish directly or onto coral crevices; once affected the fish are immobilized [merely
stunned] and then scooped by hand. [38] The diver then surfaces and dumps his catch into a submerged net
attached to the skiff . Twenty minutes later, the fish can swim normally. Back on shore, they are placed in holding
pens, and within a few weeks, they expel the cyanide from their system and are ready to be hauled. Then they are
placed in saltwater tanks or packaged in plastic bags filled with seawater for shipment by air freight to major markets
for live food fish.[39] While the fish are meant to survive, the opposite holds true for their former home as [a]fter the
fisherman squirts the cyanide, the first thing to perish is the reef algae, on which fish feed. Days later, the living
coral starts to expire. Soon the reef loses its function as habitat for the fish, which eat both the algae and
invertebrates that cling to the coral. The reef becomes an underwater graveyard, its skeletal remains brittle,
bleached of all color and vulnerable to erosion from the pounding of the waves. [40] It has been found that cyanide
fishing kills most hard and soft corals within three months of repeated application. [41]
The nexus then between the activities barred by Ordinance No. 15-92 of the City of Puerto Princesa and the
prohibited acts provided in Ordinance No. 2, Series of 1993 of the Province of Palawan, on one hand, and the use
of sodium cyanide, on the other, is painfully obvious. In sum, the public purpose and reasonableness of the
Ordinances may not then be controverted.
As to Office Order No. 23, Series of 1993, issued by Acting City Mayor Amado L. Lucero of the City of Puerto
Princesa, we find nothing therein violative of any constitutional or statutory provision. The Order refers to the
implementation of the challenged ordinance and is not the Mayors Permit.
The dissenting opinion of Mr. Justice Josue N. Bellosillo relies upon the lack of authority on the part of
the Sangguniang Panlungsod of Puerto Princesa to enact Ordinance No. 15, Series of 1992, on the theory that the
subject thereof is within the jurisdiction and responsibility of the Bureau of Fisheries and Aquatic Resources (BFAR)
under P.D. No. 704, otherwise known as the Fisheries Decree of 1975; and that, in any event, the Ordinance is
unenforceable for lack of approval by the Secretary of the Department of Natural Resources (DNR), likewise in
accordance with P.D. No. 704.
The majority is unable to accommodate this view. The jurisdiction and responsibility of the BFAR under P. D. no.
704, over the management, conservation, development, protection, utilization and disposition of all fishery and
aquatic resources of the country is not all-encompassing. First, Section 4 thereof excludes from such jurisdiction and
responsibility municipal waters, which shall be under the municipal or city government concerned, except insofar as
fishpens and seaweed culture in municipal in municipal centers are concerned. This section provides, however, that
all municipal or city ordinances and resolutions affecting fishing and fisheries and any disposition thereunder shall
be submitted to the Secretary of the Department of Natural Resources for appropriate action and shall have full
force and effect only upon his approval.[42]
Second, it must at once be pointed out that the BFAR is no longer under the Department of Natural Resources
(now Department of Environment and Natural Resources). Executive Order No. 967 of 30 June 1984 transferred the
BFAR from the control and supervision of the Minister (formerly Secretary) of Natural Resources to the Ministry of
Agriculture and Food (MAF) and converted it into a mere staff agency thereof, integrating its functions with the
regional offices of the MAF.
In Executive Order No. 116 of 30 January 1987, which reorganized the MAF, the BFAR was retained as an
attached agency of the MAF. And under the Administrative Code of 1987, [43] the BFAR is placed under the Title
concerning the Department of Agriculture.[44]
Therefore, it is incorrect to say that the challenged Ordinance of the City of Puerto Princesa is invalid or
unenforceable because it was not approved by the Secretary of the DENR. If at all, the approval that should be
sought would be that of the Secretary of the Department of Agriculture (not DENR) of municipal ordinances affecting
fishing and fisheries in municipal waters has been dispensed with in view of the following reasons:
(1) Section 534 (Repealing Clause) of the LGC expressly repeals or amends Section 16 and 29 of P.D.
No. 704[45] insofar that they are inconsistent with the provisions of the LGC.
(2) As discussed earlier, under the general welfare clause of the LGC, local government units have the
power, inter alia, to enact ordinances to enhance the right of the people to a balanced ecology. It likewise
specifically vests municipalities with the power to grant fishery privileges in municipal waters, and impose rentals,
fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives, noxious or poisonous
substances, electricity, muro-ami, and other deleterious methods of fishing; and to prosecute other methods of
fishing; and to prosecute any violation of the provisions of applicable fishing laws. [46] Finally, it imposes upon
the sangguniang bayan, the sangguniang panlungsod, and the sangguniang panlalawigan the duty to enact
ordinances to [p]rotect the environment and impose appropriate penalties for acts which endanger the environment
such as dynamite fishing and other forms of destructive fishing and such other activities which result in pollution,
acceleration of eutrophication of rivers and lakes or of ecological imbalance. [47]
In closing, we commend the Sangguniang Panlungsod of the City of Puerto Princesa and Sangguniang
Panlalawigan of the Province of Palawan for exercising the requisite political will to enact urgently needed legislation
to protect and enhance the marine environment, thereby sharing in the herculean task of arresting the tide of
ecological destruction. We hope that other local government units shall now be roused from their lethargy and adopt
a more vigilant stand in the battle against the decimation of our legacy to future generations. At this time, the
repercussions of any further delay in their response may prove disastrous, if not, irreversible.
WHEREFORE, the instant petition is DISMISSED for lack of merit and the temporary restraining order issued
on 11 November 1993 is LIFTED.
No pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Padilla, Vitug, Panganiban, and Torres, Jr., JJ., concur.
Romero, Melo, Puno, and Francisco, JJ., joined the ponencias of Justices Davide and Mendoza.
Bellosillo, J., see dissenting opinion.
Kapunan and Hermosisima, Jr., JJ., join Justice Bellosillo in his dissenting opinion.
Mendoza, see concurring opinion.
Regalado, J., on official leave.
Africa v. Caltex
G.R. No. L-12986 March 31, 1966
THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA ONG, petitioners-
appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-appellees.
Ross, Selph, Carrascoso and Janda for the respondents.

Bernabe Africa, etc. for the petitioners.
MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed that of the
Court of First Instance of Manila dismissing petitioners' second amended complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the afternoon of
March 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo street and Rizal Avenue,
Manila. It started while gasoline was being hosed from a tank truck into the underground storage, right at the
opening of the receiving tank where the nozzle of the hose was inserted. The fire spread to and burned several
neighboring houses, including the personal properties and effects inside them. Their owners, among them
petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the station
and the second as its agent in charge of operation. Negligence on the part of both of them was attributed as the
cause of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove negligence and that respondents had
exercised due care in the premises and with respect to the supervision of their employees.
The first question before Us refers to the admissibility of certain reports on the fire prepared by the Manila Police
and Fire Departments and by a certain Captain Tinio of the Armed Forces of the Philippines. Portions of the first two
reports are as follows:
1. Police Department report:
Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was
transferring gasoline from a tank truck, plate No. T-5292 into the underground tank of the Caltex
Gasoline Station located at the corner of Rizal Avenue and Antipolo Street, this City, an unknown
Filipino lighted a cigarette and threw the burning match stick near the main valve of the said
underground tank. Due to the gasoline fumes, fire suddenly blazed. Quick action of Leandro Flores
in pulling off the gasoline hose connecting the truck with the underground tank prevented a terrific
explosion. However, the flames scattered due to the hose from which the gasoline was spouting. It
burned the truck and the following accessorias and residences.
2. The Fire Department report:
In connection with their allegation that the premises was (sic) subleased for the installation of a coca-cola
and cigarette stand, the complainants furnished this Office a copy of a photograph taken during the fire and
which is submitted herewith. it appears in this picture that there are in the premises a coca-cola cooler and a
rack which according to information gathered in the neighborhood contained cigarettes and matches,
installed between the gasoline pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the history of the
gasoline station and what the chief of the fire department had told him on the same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence inadmissible. This
ruling is now assigned as error. It is contended: first, that said reports were admitted by the trial court without
objection on the part of respondents; secondly, that with respect to the police report (Exhibit V-Africa) which appears
signed by a Detective Zapanta allegedly "for Salvador Capacillo," the latter was presented as witness but
respondents waived their right to cross-examine him although they had the opportunity to do so; and thirdly, that in
any event the said reports are admissible as an exception to the hearsay rule under section 35 of Rule 123, now
Rule 130.
The first contention is not borne out by the record. The transcript of the hearing of September 17, 1953 (pp. 167-
170) shows that the reports in question, when offered as evidence, were objected to by counsel for each of
respondents on the ground that they were hearsay and that they were "irrelevant, immaterial and impertinent."
Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the admission of
the others, including the disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand, he was not examined and he did not
testify as to the facts mentioned in his alleged report (signed by Detective Zapanta). All he said was that he was one
of those who investigated "the location of the fire and, if possible, gather witnesses as to the occurrence, and that he
brought the report with him. There was nothing, therefore, on which he need be cross-examined; and the contents of
the report, as to which he did not testify, did not thereby become competent evidence. And even if he had testified,
his testimony would still have been objectionable as far as information gathered by him from third persons was
concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further testimonial evidence on their
contents, fall within the scope of section 35, Rule 123, which provides that "entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a public
officer, or by another person specially enjoined by law to do so; (b) that it was made by the public officer in the
performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and (c)
that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been
acquired by him personally or through official information (Moran, Comments on the Rules of Court, Vol. 3 [1957] p.
398).
Of the three requisites just stated, only the last need be considered here. Obviously the material facts recited in the
reports as to the cause and circumstances of the fire were not within the personal knowledge of the officers who
conducted the investigation. Was knowledge of such facts, however, acquired by them through official information?
As to some facts the sources thereof are not even identified. Others are attributed to Leopoldo Medina, referred to
as an employee at the gas station were the fire occurred; to Leandro Flores, driver of the tank truck from which
gasoline was being transferred at the time to the underground tank of the station; and to respondent Mateo
Boquiren, who could not, according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their
statements as "official information" acquired by the officers who prepared the reports, the persons who made the
statements not only must have personal knowledge of the facts stated but must have the duty to give such
statements for record.1
The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were not acquired
by the reporting officers through official information, not having been given by the informants pursuant to any duty to
do so.
The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine of res ipsa
loquiturshould apply so as to presume negligence on the part of appellees. Both the trial court and the appellate
court refused to apply the doctrine in the instant case on the grounds that "as to (its) applicability ... in the
Philippines, there seems to he nothing definite," and that while the rules do not prohibit its adoption in appropriate
cases, "in the case at bar, however, we find no practical use for such doctrine." The question deserves more than
such summary dismissal. The doctrine has actually been applied in this jurisdiction, in the case of Espiritu vs.
Philippine Power and Development Co. (CA-G.R. No. 3240-R, September 20, 1949), wherein the decision of the
Court of Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were loading grass
between the municipalities of Bay and Calauan, in the province of Laguna, with clear weather and without
any wind blowing, an electric transmission wire, installed and maintained by the defendant Philippine Power
and Development Co., Inc. alongside the road, suddenly parted, and one of the broken ends hit the head of
the plaintiff as he was about to board the truck. As a result, plaintiff received the full shock of 4,400 volts
carried by the wire and was knocked unconscious to the ground. The electric charge coursed through his
body and caused extensive and serious multiple burns from skull to legs, leaving the bone exposed in some
parts and causing intense pain and wounds that were not completely healed when the case was tried on
June 18, 1947, over one year after the mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific act of
negligence, but the appellate court overruled the defense under the doctrine of res ipsa loquitur. The court said:
The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its defense.
While it is the rule, as contended by the appellant, that in case of noncontractual negligence, or culpa
aquiliana, the burden of proof is on the plaintiff to establish that the proximate cause of his injury was the
negligence of the defendant, it is also a recognized principal that "where the thing which caused injury,
without fault of the injured person, is under the exclusive control of the defendant and the injury is such as in
the ordinary course of things does not occur if he having such control use proper care, it affords reasonable
evidence, in the absence of the explanation, that the injury arose from defendant's want of care."
And the burden of evidence is shifted to him to establish that he has observed due care and diligence. (San
Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the name of res
ipsa loquitur (the transaction speaks for itself), and is peculiarly applicable to the case at bar, where it is
unquestioned that the plaintiff had every right to be on the highway, and the electric wire was under the sole
control of defendant company. In the ordinary course of events, electric wires do not part suddenly in fair
weather and injure people, unless they are subjected to unusual strain and stress or there are defects in
their installation, maintenance and supervision; just as barrels do not ordinarily roll out of the warehouse
windows to injure passersby, unless some one was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng.
Reprint 299, the leading case that established that rule). Consequently, in the absence of contributory
negligence (which is admittedly not present), the fact that the wire snapped suffices to raise a reasonable
presumption of negligence in its installation, care and maintenance. Thereafter, as observed by Chief Baron
Pollock, "if there are any facts inconsistent with negligence, it is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the Supreme Court,
but we do not consider this a reason for not applying the particular doctrine of res ipsa loquitur in the case at bar.
Gasoline is a highly combustible material, in the storage and sale of which extreme care must be taken. On the
other hand, fire is not considered a fortuitous event, as it arises almost invariably from some act of man. A case
strikingly similar to the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So. 447:
Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was leased to the
Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934, during the term of the lease,
while gasoline was being transferred from the tank wagon, also operated by the Shell Petroleum
Corporation, to the underground tank of the station, a fire started with resulting damages to the building
owned by Jones. Alleging that the damages to his building amounted to $516.95, Jones sued the Shell
Petroleum Corporation for the recovery of that amount. The judge of the district court, after hearing the
testimony, concluded that plaintiff was entitled to a recovery and rendered judgment in his favor for $427.82.
The Court of Appeals for the First Circuit reversed this judgment, on the ground the testimony failed to show
with reasonable certainty any negligence on the part of the Shell Petroleum Corporation or any of its agents
or employees. Plaintiff applied to this Court for a Writ of Review which was granted, and the case is now
before us for decision.1wph1.t
In resolving the issue of negligence, the Supreme Court of Louisiana held:
Plaintiff's petition contains two distinct charges of negligence one relating to the cause of the fire and the
other relating to the spreading of the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses were placed
on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it established by the record
that the filling station and the tank truck were under the control of the defendant and operated by its agents
or employees. We further find from the uncontradicted testimony of plaintiff's witnesses that fire started in
the underground tank attached to the filling station while it was being filled from the tank truck and while both
the tank and the truck were in charge of and being operated by the agents or employees of the defendant,
extended to the hose and tank truck, and was communicated from the burning hose, tank truck, and
escaping gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the further circumstance of defendant's failure to explain the cause
of the fire or to show its lack of knowledge of the cause, plaintiff has evoked the doctrine of res ipsa loquitur.
There are many cases in which the doctrine may be successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to be under the management of defendant
or his servants and the accident is such as in the ordinary course of things does not happen if those who
have its management or control use proper care, it affords reasonable evidence, in absence of explanation
by defendant, that the accident arose from want of care. (45 C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of last
resort. Some of the cases in this jurisdiction in which the doctrine has been applied are the following, viz.:
Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So.
731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v.
Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force here. The gasoline station, with all its
appliances, equipment and employees, was under the control of appellees. A fire occurred therein and spread to
and burned the neighboring houses. The persons who knew or could have known how the fire started were
appellees and their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable
inference that the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1 Africa) the following
appears:
Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of occupies a lot
approximately 10 m x 10 m at the southwest corner of Rizal Avenue and Antipolo. The location is within a
very busy business district near the Obrero Market, a railroad crossing and very thickly populated
neighborhood where a great number of people mill around t
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this constitute a
secondary hazard to its operation which in turn endangers the entire neighborhood to conflagration.
Furthermore, aside from precautions already taken by its operator the concrete walls south and west
adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid the flames from leaping
over it in case of fire.
Records show that there have been two cases of fire which caused not only material damages but
desperation and also panic in the neighborhood.
Although the soft drinks stand had been eliminated, this gasoline service station is also used by its operator
as a garage and repair shop for his fleet of taxicabs numbering ten or more, adding another risk to the
possible outbreak of fire at this already small but crowded gasoline station.
The foregoing report, having been submitted by a police officer in the performance of his duties on the basis of his
own personal observation of the facts reported, may properly be considered as an exception to the hearsay rule.
These facts, descriptive of the location and objective circumstances surrounding the operation of the gasoline
station in question, strengthen the presumption of negligence under the doctrine of res ipsa loquitur, since on their
face they called for more stringent measures of caution than those which would satisfy the standard of due diligence
under ordinary circumstances. There is no more eloquent demonstration of this than the statement of Leandro
Flores before the police investigator. Flores was the driver of the gasoline tank wagon who, alone and without
assistance, was transferring the contents thereof into the underground storage when the fire broke out. He said:
"Before loading the underground tank there were no people, but while the loading was going on, there were people
who went to drink coca-cola (at the coca-cola stand) which is about a meter from the hole leading to the
underground tank." He added that when the tank was almost filled he went to the tank truck to close the valve, and
while he had his back turned to the "manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent
omission on the part of defendants, namely, their failure to provide a concrete wall high enough to prevent the
flames from leaping over it. As it was the concrete wall was only 2-1/2 meters high, and beyond that height it
consisted merely of galvanized iron sheets, which would predictably crumple and melt when subjected to intense
heat. Defendants' negligence, therefore, was not only with respect to the cause of the fire but also with respect to
the spread thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the second amended complaint that "the
fire was caused through the acts of a stranger who, without authority, or permission of answering defendant, passed
through the gasoline station and negligently threw a lighted match in the premises." No evidence on this point was
adduced, but assuming the allegation to be true certainly any unfavorable inference from the admission may be
taken against Boquiren it does not extenuate his negligence. A decision of the Supreme Court of Texas, upon
facts analogous to those of the present case, states the rule which we find acceptable here. "It is the rule that those
who distribute a dangerous article or agent, owe a degree of protection to the public proportionate to and
commensurate with a danger involved ... we think it is the generally accepted rule as applied to torts that 'if the
effects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the fact
that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious or
criminal act is also a substantial factor in bringing about the harm, does not protect the actor from liability.'
(Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The intention of an unforeseen and
unexpected cause, is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligence
directly and proximately cooperates with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's
Gas Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to appellants. This issue depends on
whether Boquiren was an independent contractor, as held by the Court of Appeals, or an agent of Caltex. This
question, in the light of the facts not controverted, is one of law and hence may be passed upon by this Court. These
facts are: (1) Boquiren made an admission that he was an agent of Caltex; (2) at the time of the fire Caltex owned
the gasoline station and all the equipment therein; (3) Caltex exercised control over Boquiren in the management of
the state; (4) the delivery truck used in delivering gasoline to the station had the name of CALTEX painted on it; and
(5) the license to store gasoline at the station was in the name of Caltex, which paid the license fees. (Exhibit T-
Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied that he directed one of his drivers to
remove gasoline from the truck into the tank and alleged that the "alleged driver, if one there was, was not in his
employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true
that Boquiren later on amended his answer, and that among the changes was one to the effect that he was not
acting as agent of Caltex. But then again, in his motion to dismiss appellants' second amended complaint the
ground alleged was that it stated no cause of action since under the allegations thereof he was merely acting as
agent of Caltex, such that he could not have incurred personal liability. A motion to dismiss on this ground is deemed
to be an admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the business
conducted at the service station in question was owned and operated by Boquiren. But Caltex did not present any
contract with Boquiren that would reveal the nature of their relationship at the time of the fire. There must have been
one in existence at that time. Instead, what was presented was a license agreement manifestly tailored for purposes
of this case, since it was entered into shortly before the expiration of the one-year period it was intended to operate.
This so-called license agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but made effective as of
January 1, 1948 so as to cover the date of the fire, namely, March 18, 1948. This retroactivity provision is quite
significant, and gives rise to the conclusion that it was designed precisely to free Caltex from any responsibility with
respect to the fire, as shown by the clause that Caltex "shall not be liable for any injury to person or property while in
the property herein licensed, it being understood and agreed that LICENSEE (Boquiren) is not an employee,
representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be considered an independent contractor.
Under that agreement Boquiren would pay Caltex the purely nominal sum of P1.00 for the use of the premises and
all the equipment therein. He could sell only Caltex Products. Maintenance of the station and its equipment was
subject to the approval, in other words control, of Caltex. Boquiren could not assign or transfer his rights as licensee
without the consent of Caltex. The license agreement was supposed to be from January 1, 1948 to December 31,
1948, and thereafter until terminated by Caltex upon two days prior written notice. Caltex could at any time cancel
and terminate the agreement in case Boquiren ceased to sell Caltex products, or did not conduct the business with
due diligence, in the judgment of Caltex. Termination of the contract was therefore a right granted only to Caltex but
not to Boquiren. These provisions of the contract show the extent of the control of Caltex over Boquiren. The control
was such that the latter was virtually an employee of the former.
Taking into consideration the fact that the operator owed his position to the company and the latter could
remove him or terminate his services at will; that the service station belonged to the company and bore its
tradename and the operator sold only the products of the company; that the equipment used by the operator
belonged to the company and were just loaned to the operator and the company took charge of their repair
and maintenance; that an employee of the company supervised the operator and conducted periodic
inspection of the company's gasoline and service station; that the price of the products sold by the operator
was fixed by the company and not by the operator; and that the receipts signed by the operator indicated
that he was a mere agent, the finding of the Court of Appeals that the operator was an agent of the company
and not an independent contractor should not be disturbed.
To determine the nature of a contract courts do not have or are not bound to rely upon the name or title
given it by the contracting parties, should thereby a controversy as to what they really had intended to enter
into, but the way the contracting parties do or perform their respective obligations stipulated or agreed upon
may be shown and inquired into, and should such performance conflict with the name or title given the
contract by the parties, the former must prevail over the latter. (Shell Company of the Philippines, Ltd. vs.
Firemens' Insurance Company of Newark, New Jersey, 100 Phil. 757).
The written contract was apparently drawn for the purpose of creating the apparent relationship of employer
and independent contractor, and of avoiding liability for the negligence of the employees about the station;
but the company was not satisfied to allow such relationship to exist. The evidence shows that it immediately
assumed control, and proceeded to direct the method by which the work contracted for should be
performed. By reserving the right to terminate the contract at will, it retained the means of compelling
submission to its orders. Having elected to assume control and to direct the means and methods by which
the work has to be performed, it must be held liable for the negligence of those performing service under its
direction. We think the evidence was sufficient to sustain the verdict of the jury. (Gulf Refining Company v.
Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash invoices were
presented to show that Boquiren had bought said gasoline from Caltex. Neither was there a sales contract to prove
the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of P2,000.00
collected by them on the insurance of the house. The deduction is now challenged as erroneous on the ground that
Article 2207 of the New Civil Code, which provides for the subrogation of the insurer to the rights of the insured, was
not yet in effect when the loss took place. However, regardless of the silence of the law on this point at that time, the
amount that should be recovered be measured by the damages actually suffered, otherwise the principle prohibiting
unjust enrichment would be violated. With respect to the claim of the heirs of Ong P7,500.00 was adjudged by the
lower court on the basis of the assessed value of the property destroyed, namely, P1,500.00, disregarding the
testimony of one of the Ong children that said property was worth P4,000.00. We agree that the court erred, since it
is of common knowledge that the assessment for taxation purposes is not an accurate gauge of fair market value,
and in this case should not prevail over positive evidence of such value. The heirs of Ong are therefore entitled to
P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees are held liable solidarily to
appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00, respectively, with interest
from the filing of the complaint, and costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala, Bengzon, J.P., Zaldivar and Sanchez,
JJ., concur.
Dizon, J., took no part.
Footnotes
1
Thus, for instance, the record of a justice of the peace of marriage certificates transmitted to him by the
corresponding priest is admissible. The justice of the peace has no personal knowledge of the marriage, but
it was reported to him by a priest whose duty it was, under the law, to make the report for record purposes.
Similarly, the tax records of a provincial assessor are admissible even if the assessments were made by
subordinates. So also are entries of marriages made by a municipal treasurer in his official record, because
he acquires knowledge thereof by virtue of a statutory duty on the part of those authorized to solemnize
marriages to send a copy of each marriage contract solemnized by them to the local civil registrar. (See
Moran, Comments on the Rules of Court, Vol. 3 [1957] pp. 389-395.)
Cruz v. Secretary
EN BANC
[G.R. No. 135385. December 6, 2000]

ISAGANI CRUZ and CESAR EUROPA, petitioners, vs. SECRETARY OF ENVIRONMENT AND NATURAL
RESOURCES, SECRETARY OF BUDGET AND MANAGEMENT and CHAIRMAN and COMMISSIONERS
OF THE NATIONAL COMMISSION ON INDIGENOUS PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI ASCARRAGA, EDTAMI MANSAYANGAN,
BASILIO WANDAG, EVELYN DUNUAN, YAOM TUGAS, ALFREMO CARPIANO, LIBERATO A. GABIN,
MATERNIDAD M. COLAS, NARCISA M. DALUPINES, BAI KIRAM-CONNIE SATURNO, BAE MLOMO-
BEATRIZ T. ABASALA, DATU BALITUNGTUNG-ANTONIO D. LUMANDONG, DATU MANTUMUKAW
TEOFISTO SABASALES, DATU EDUAARDO BANDA, DATU JOEL UNAD, DATU RAMON BAYAAN,
TIMUAY JOSE ANOY, TIMUAY MACARIO D. SALACAO, TIMUAY EDWIN B. ENDING, DATU
SAHAMPONG MALANAW VI, DATU BEN PENDAO CABIGON, BAI NANAPNAY-LIZA SAWAY, BAY INAY
DAYA-MELINDA S. REYMUNDO, BAI TINANGHAGA HELINITA T. PANGAN, DATU MAKAPUKAW
ADOLINO L. SAWAY, DATU MAUDAYAW-CRISPEN SAWAY, VICKY MAKAY, LOURDES D. AMOS,
GILBERT P. HOGGANG, TERESA GASPAR, MANUEL S. ONALAN, MIA GRACE L. GIRON,
ROSEMARIE G. PE, BENITO CARINO, JOSEPH JUDE CARANTES, LYNETTE CARANTES-VIVAL,
LANGLEY SEGUNDO, SATUR S. BUGNAY, CARLING DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO
ABUGAN, VIRGILIO CAYETANO, CONCHITA G. DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ,
RODOLFO C. AGUILAR, MAURO VALONES, PEPE H. ATONG, OFELIA T. DAVI, PERFECTO B.
GUINOSAO, WALTER N. TIMOL, MANUEL T. SELEN, OSCAR DALUNHAY, RICO O. SULATAN, RAFFY
MALINDA, ALFREDO ABILLANOS, JESSIE ANDILAB, MIRLANDO H. MANGKULINTAS, SAMIE
SATURNO, ROMEO A. LINDAHAY, ROEL S. MANSANG-CAGAN, PAQUITO S. LIESES, FILIPE G.
SAWAY, HERMINIA S. SAWAY, JULIUS S. SAWAY, LEONARDA SAWAY, JIMMY UGYUB, SALVADOR
TIONGSON, VENANCIO APANG, MADION MALID, SUKIM MALID, NENENG MALID, MANGKATADONG
AUGUSTO DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO MANGCAL, FELAY DIAMILING,
SALOME P. SARZA, FELIPE P. BAGON, SAMMY SALNUNGAN, ANTONIO D. EMBA, NORMA
MAPANSAGONOS, ROMEO SALIGA, SR., JERSON P. GERADA, RENATO T. BAGON, JR., SARING
MASALONG, SOLEDAD M. GERARDA, ELIZABETH L. MENDI, MORANTE S. TIWAN, DANILO M.
MALUDAO, MINORS MARICEL MALID, represented by her father CORNELIO MALID, MARCELINO M.
LADRA, represented by her father MONICO D. LADRA, JENNYLYN MALID, represented by her father
TONY MALID, ARIEL M. EVANGELISTA, represented by her mother LINAY BALBUENA, EDWARD M.
EMUY, SR., SUSAN BOLANIO, OND, PULA BATO BLAAN TRIBAL FARMERS ASSOCIATION, INTER-
PEOPLES EXCHANGE, INC. and GREEN FORUM-WESTERN VISAYAS, intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE CONSERVATION OF NATURAL
RESOURCES, INC., intervenor.
RESOLUTION
PER CURIAM:
Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and mandamus as citizens and
taxpayers, assailing the constitutionality of certain provisions of Republic Act No. 8371 (R.A. 8371), otherwise known
as the Indigenous Peoples Rights Act of 1997 (IPRA), and its Implementing Rules and Regulations (Implementing
Rules).
In its resolution of September 29, 1998, the Court required respondents to comment. [1] In compliance,
respondents Chairperson and Commissioners of the National Commission on Indigenous Peoples (NCIP), the
government agency created under the IPRA to implement its provisions, filed on October 13, 1998 their Comment to
the Petition, in which they defend the constitutionality of the IPRA and pray that the petition be dismissed for lack of
merit.
On October 19, 1998, respondents Secretary of the Department of Environment and Natural Resources
(DENR) and Secretary of the Department of Budget and Management (DBM) filed through the Solicitor General a
consolidated Comment. The Solicitor General is of the view that the IPRA is partly unconstitutional on the ground
that it grants ownership over natural resources to indigenous peoples and prays that the petition be granted in part.
On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, one of the authors of the IPRA,
Mr. Ponciano Bennagen, a member of the 1986 Constitutional Commission, and the leaders and members of 112
groups of indigenous peoples (Flavier, et. al), filed their Motion for Leave to Intervene. They join the NCIP in
defending the constitutionality of IPRA and praying for the dismissal of the petition.
On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a Motion to Intervene and/or to
Appear as Amicus Curiae. The CHR asserts that IPRA is an expression of the principle of parens patriae and that
the State has the responsibility to protect and guarantee the rights of those who are at a serious disadvantage like
indigenous peoples. For this reason it prays that the petition be dismissed.
On March 23, 1999, another group, composed of the Ikalahan Indigenous People and the Haribon Foundation
for the Conservation of Natural Resources, Inc. (Haribon, et al.), filed a motion to Intervene with attached Comment-
in-Intervention. They agree with the NCIP and Flavier, et al. that IPRA is consistent with the Constitution and pray
that the petition for prohibition and mandamus be dismissed.
The motions for intervention of the aforesaid groups and organizations were granted.
Oral arguments were heard on April 13, 1999. Thereafter, the parties and intervenors filed their respective
memoranda in which they reiterate the arguments adduced in their earlier pleadings and during the hearing.
Petitioners assail the constitutionality of the following provisions of the IPRA and its Implementing Rules on the
ground that they amount to an unlawful deprivation of the States ownership over lands of the public domain as well
as minerals and other natural resources therein, in violation of the regalian doctrine embodied in Section 2, Article
XII of the Constitution:
(1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b) which, in
turn, defines ancestral lands;
(2) Section 5, in relation to section 3(a), which provides that ancestral domains including inalienable public
lands, bodies of water, mineral and other resources found within ancestral domains are private but
community property of the indigenous peoples;
(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral domains and
ancestral lands;
(4) Section 7 which recognizes and enumerates the rights of the indigenous peoples over the ancestral
domains;
(5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the ancestral
lands;
(6) Section 57 which provides for priority rights of the indigenous peoples in the harvesting, extraction,
development or exploration of minerals and other natural resources within the areas claimed to be their
ancestral domains, and the right to enter into agreements with nonindigenous peoples for the
development and utilization of natural resources therein for a period not exceeding 25 years, renewable
for not more than 25 years; and
(7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop, protect and
conserve the ancestral domains and portions thereof which are found to be necessary for critical
watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover or
reforestation.[2]
Petitioners also content that, by providing for an all-encompassing definition of ancestral domains and
ancestral lands which might even include private lands found within said areas, Sections 3(a) and 3(b) violate the
rights of private landowners.[3]
In addition, petitioners question the provisions of the IPRA defining the powers and jurisdiction of the NCIP and
making customary law applicable to the settlement of disputes involving ancestral domains and ancestral lands on
the ground that these provisions violate the due process clause of the Constitution. [4]
These provisions are:
(1) sections 51 to 53 and 59 which detail the process of delineation and recognition of ancestral domains
and which vest on the NCIP the sole authority to delineate ancestral domains and ancestral lands;
(2) Section 52[i] which provides that upon certification by the NCIP that a particular area is an ancestral
domain and upon notification to the following officials, namely, the Secretary of Environment and
Natural Resources, Secretary of Interior and Local Governments, Secretary of Justice and
Commissioner of the National Development Corporation, the jurisdiction of said officials over said area
terminates;
(3) Section 63 which provides the customary law, traditions and practices of indigenous peoples shall be
applied first with respect to property rights, claims of ownership, hereditary succession and settlement
of land disputes, and that any doubt or ambiguity in the interpretation thereof shall be resolved in favor
of the indigenous peoples;
(4) Section 65 which states that customary laws and practices shall be used to resolve disputes involving
indigenous peoples; and
(5) Section 66 which vests on the NCIP the jurisdiction over all claims and disputes involving rights of the
indigenous peoples.[5]
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP Administrative Order No. 1,
series of 1998, which provides that the administrative relationship of the NCIP to the Office of the President is
characterized as a lateral but autonomous relationship for purposes of policy and program coordination. They
contend that said Rule infringes upon the Presidents power of control over executive departments under Section
17, Article VII of the Constitution.[6]
Petitioners pray for the following:
(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and other related provisions of
R.A. 8371 are unconstitutional and invalid;
(2) The issuance of a writ of prohibition directing the Chairperson and Commissioners of the NCIP to
cease and desist from implementing the assailed provisions of R.A. 8371 and its Implementing Rules;
(3) The issuance of a writ of prohibition directing the Secretary of the Department of Environment and
Natural Resources to cease and desist from implementing Department of Environment and Natural
Resources Circular No. 2, series of 1998;
(4) The issuance of a writ of prohibition directing the Secretary of Budget and Management to cease and
desist from disbursing public funds for the implementation of the assailed provisions of R.A. 8371; and
(5) The issuance of a writ of mandamus commanding the Secretary of Environment and Natural
Resources to comply with his duty of carrying out the States constitutional mandate to control and
supervise the exploration, development, utilization and conservation of Philippine natural resources. [7]
After due deliberation on the petition, the members of the Court voted as follows:
Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief Justice and Justices
Bellosillo, Quisumbing, and Santiago join, sustaining the validity of the challenged provisions of R.A. 8371. Justice
Puno also filed a separate opinion sustaining all challenged provisions of the law with the exception of Section 1,
Part II, Rule III of NCIP Administrative Order No. 1, series of 1998, the Rules and Regulations Implementing the
IPRA, and Section 57 of the IPRA which he contends should be interpreted as dealing with the large-scale
exploitation of natural resources and should be read in conjunction with Section 2, Article XII of the 1987
Constitution. On the other hand, Justice Mendoza voted to dismiss the petition solely on the ground that it does not
raise a justiciable controversy and petitioners do not have standing to question the constitutionality of R.A. 8371.
Seven (7) other members of the Court voted to grant the petition. Justice Panganiban filed a separate opinion
expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371 are
unconstitutional. He reserves judgment on the constitutionality of Sections 58, 59, 65, and 66 of the law, which he
believes must await the filing of specific cases by those whose rights may have been violated by the IPRA. Justice
Vitug also filed a separate opinion expressing the view that Sections 3(a), 7, and 57 of R.A. 8371 are
unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and De Leon join in the separate opinions of
Justices Panganiban and Vitug.
As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case was
redeliberated upon. However, after redeliberation, the voting remained the same. Accordingly, pursuant to Rule 56,
Section 7 of the Rules of Civil Procedure, the petition is DISMISSED.
Attached hereto and made integral parts thereof are the separate opinions of Justices Puno, Vitug, Kapunan,
Mendoza, and Panganiban.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon,
Jr., JJ., concur.
Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate opinion
SEPARATE OPINION
PUNO, J.:
PRECIS
A classic essay on the utility of history was written in 1874 by Friedrich Nietzsche entitled "On the
Uses and Disadvantages of History for Life." Expounding on Nietzsche's essay, Judge Richard
Posner[1] wrote:[2]
"Law is the most historically oriented, or if you like the most backward-looking, the most 'past-dependent,' of
the professions. It venerates tradition, precedent, pedigree, ritual, custom, ancient practices, ancient texts,
archaic terminology, maturity, wisdom, seniority, gerontocracy, and interpretation conceived of as a method
of recovering history. It is suspicious of innovation, discontinuities, 'paradigm shifts,' and the energy and
brashness of youth. These ingrained attitudes are obstacles to anyone who wants to re-orient law in a more
pragmatic direction. But, by the same token, pragmatic jurisprudence must come to terms with
history.
When Congress enacted the Indigenous Peoples Rights Act (IPRA), it introduced radical concepts
into the Philippine legal system which appear to collide with settled constitutional and jural precepts on state
ownership of land and other natural resources. The sense and subtleties of this law cannot be appreciated
without considering its distinct sociology and the labyrinths of its history. This Opinion attempts to interpret
IPRA by discovering its soul shrouded by the mist of our history. After all, the IPRA was enacted by
Congress not only to fulfill the constitutional mandate of protecting the indigenous cultural communities' right
to their ancestral land but more importantly, to correct a grave historical injustice to our indigenous
people.
This Opinion discusses the following:
I. The Development of the Regalian Doctrine in the Philippine Legal System.
A. The Laws of the Indies
B. Valenton v. Murciano
C. The Public Land Acts and the Torrens System
D. The Philippine Constitutions
II. The Indigenous Peoples Rights Act (IPRA).
A. Indigenous Peoples
1. Indigenous Peoples: Their History
2. Their Concept of Land
III. The IPRA is a Novel Piece of Legislation.
A. Legislative History
IV. The Provisions of the IPRA Do Not Contravene the Constitution.
A. Ancestral domains and ancestral lands are the private property of indigenous peoples and do
not constitute part of the land of the public domain.
1. The right to ancestral domains and ancestral lands: how acquired
2. The concept of native title
(a) Cario v. Insular Government
(b) Indian Title to land
(c) Why the Cario doctrine is unique
3. The option of securing a torrens title to the ancestral land
B. The right of ownership and possession by the ICCs/IPs to their ancestral domains is a limited
form of ownership and does not include the right to alienate the same.
1. The indigenous concept of ownership and customary law
C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the Regalian Doctrine enshrined in Section 2,
Article XII of the 1987 Constitution.
1. The rights of ICCs/IPs over their ancestral domains and lands
2. The right of ICCs/IPs to develop lands and natural resources within the ancestral domains does
not deprive the State of ownership over the natural resources, control and supervision in
their development and exploitation.
(a) Section 1, Part II, Rule III of the Implementing Rules goes beyond the parameters of
Section 7(a) of the law on ownership of ancestral domains and is ultra vires.
(b) The small-scale utilization of natural resources in Section 7 (b) of the IPRA is allowed
under Paragraph 3, Section 2, Article XII of the 1987 Consitution.
(c) The large-scale utilization of natural resources in Section 57 of the IPRA may be
harmonized with Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.
V. The IPRA is a Recognition of Our Active Participation in the International Indigenous Movement.
DISCUSSION
I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE PHILIPPINE LEGAL SYSTEM.
A. The Laws of the Indies

The capacity of the State to own or acquire property is the state's power of dominium.[3] This was the
foundation for the early Spanish decrees embracing the feudal theory of jura regalia. The "Regalian
Doctrine" or jura regalia is a Western legal concept that wasfirst introduced by the Spaniards into the
country through the Laws of the Indies and the Royal Cedulas. The Laws of the Indies, i.e., more
specifically, Law 14, Title 12, Book 4 of the Novisima Recopilacion de Leyes de las Indias, set the policy of
the Spanish Crown with respect to the Philippine Islands in the following manner:
"We, having acquired full sovereignty over the Indies, and all lands, territories, and possessions not
heretofore ceded away by our royal predecessors, or by us, or in our name, still pertaining to the royal crown
and patrimony, it is our will that all lands which are held without proper and true deeds of grant be restored
to us as they belong to us, in order that after reserving before all what to us or to our viceroys, audiencias,
and governors may seem necessary for public squares, ways, pastures, and commons in those places
which are peopled, taking into consideration not only their present condition, but also their future and their
probable increase, and after distributing to the natives what may be necessary for tillage and pasturage,
confirming them in what they now have and giving them more if necessary, all the rest of said lands may
remain free and unencumbered for us to dispose of as we may wish.
We therefore order and command that all viceroys and presidents of pretorial courts designate at such time
as shall to them seem most expedient, a suitable period within which all possessors of tracts, farms,
plantations, and estates shall exhibit to them and to the court officers appointed by them for this purpose,
their title deeds thereto. And those who are in possession by virtue of proper deeds and receipts, or by virtue
of just prescriptive right shall be protected, and all the rest shall be restored to us to be disposed of at our
will."[4]
The Philippines passed to Spain by virtue of "discovery" and conquest. Consequently, all lands became the
exclusive patrimony and dominion of the Spanish Crown. The Spanish Government took charge of
distributing the lands by issuing royal grants and concessions to Spaniards, both military and civilian.
[5]
Private land titles could only be acquired from the government either by purchase or by the various modes
of land grant from the Crown.[6]
The Laws of the Indies were followed by the Ley Hipotecaria, or the Mortgage Law of 1893.[7] The
Spanish Mortgage Law provided for the systematic registration of titles and deeds as well as possessory
claims. The law sought to register and tax lands pursuant to the Royal Decree of 1880. The Royal Decree
of 1894, or the "Maura Law," was partly an amendment of the Mortgage Law as well as the Laws of the
Indies, as already amended by previous orders and decrees. [8] This was the last Spanish land law
promulgated in the Philippines. It required the "adjustment" or registration of all agricultural lands, otherwise
the lands shall revert to the state.
Four years later, by the Treaty of Paris of December 10, 1898, Spain ceded to the government of the
United States all rights, interests and claims over the national territory of the Philippine Islands. In 1903, the
United States colonial government, through the Philippine Commission, passed Act No. 926, the first
Public Land Act.
B. Valenton v. Murciano
In 1904, under the American regime, this Court decided the case of Valenton v. Murciano.[9]
Valenton resolved the question of which is the better basis for ownership of land: long-time occupation
or paper title. Plaintiffs had entered into peaceful occupation of the subject land in 1860. Defendant's
predecessor-in-interest, on the other hand, purchased the land from the provincial treasurer of Tarlac in
1892. The lower court ruled against the plaintiffs on the ground that they had lost all rights to the land by not
objecting to the administrative sale. Plaintiffs appealed the judgment, asserting that their 30-year adverse
possession, as an extraordinary period of prescription in the Partidas and the Civil Code, had given them
title to the land as against everyone, including the State; and that the State, not owning the land, could not
validly transmit it.
The Court, speaking through Justice Willard, decided the case on the basis of "those special laws which
from earliest time have regulated the disposition of the public lands in the colonies." [10] The question posed
by the Court was: "Did these special laws recognize any right of prescription as against the State as to
these lands; and if so, to what extent was it recognized?"
Prior to 1880, the Court said, there were no laws specifically providing for the disposition of land in the
Philippines. However, it was understood that in the absence of any special law to govern a specific colony,
the Laws of the Indies would be followed. Indeed, in the Royal Order of July 5, 1862, it was decreed that
until regulations on the subject could be prepared, the authorities of the Philippine Islands should follow
strictly the Laws of the Indies, the Ordenanza of the Intendentes of 1786, and the Royal Cedula of 1754.[11]
Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion de Leyes de las Indias, the
court interpreted it as follows:
"In the preamble of this law there is, as is seen, a distinct statement that all those lands belong to the Crown
which have not been granted by Philip, or in his name, or by the kings who preceded him. This statement
excludes the idea that there might be lands not so granted, that did not belong to the king. It
excludes the idea that the king was not still the owner of all ungranted lands, because some private
person had been in the adverse occupation of them. By the mandatory part of the law all the occupants of
the public lands are required to produce before the authorities named, and within a time to be fixed by them,
their title papers. And those who had good title or showed prescription were to be protected in their
holdings. It is apparent that it was not the intention of the law that mere possession for a length of time
should make the possessors the owners of the land possessed by them without any action on the part of the
authorities."[12]
The preamble stated that all those lands which had not been granted by Philip, or in his name, or by the
kings who preceded him, belonged to the Crown. [13] For those lands granted by the king, the decree
provided for a system of assignment of such lands. It also ordered that all possessors of agricultural land
should exhibit their title deed, otherwise, the land would be restored to the Crown. [14]
The Royal Cedula of October 15, 1754 reinforced the Recopilacion when it ordered the Crown's
principal subdelegate to issue a general order directing the publication of the Crown's instructions:
"x x x to the end that any and all persons who, since the year 1700, and up to the date of the
promulgation and publication of said order, shall have occupied royal lands, whether or not x x x
cultivated or tenanted, may x x x appear and exhibit to said subdelegates the titles and patents by
virtue of which said lands are occupied. x x x. Said subdelegates will at the same time warn the parties
interested that in case of their failure to present their title deeds within the term designated, without a
just and valid reason therefor, they will be deprived of and evicted from their lands, and they will be
granted to others."[15]
On June 25, 1880, the Crown adopted regulations for the adjustment of lands "wrongfully occupied" by
private individuals in the Philippine Islands. Valenton construed these regulations together with
contemporaneous legislative and executive interpretations of the law, and concluded that plaintiffs' case
fared no better under the 1880 decree and other laws which followed it, than it did under the earlier
ones. Thus as a general doctrine, the Court stated:
"While the State has always recognized the right of the occupant to a deed if he proves a possession for a
sufficient length of time, yet ithas always insisted that he must make that proof before the proper
administrative officers, and obtain from them his deed, and until he did that the State remained the
absolute owner."[16]
In conclusion, the Court ruled: "We hold that from 1860 to 1892 there was no law in force in these Islands
by which the plaintiffs could obtain the ownership of these lands by prescription, without any action by the
State."[17] Valenton had no rights other than those which accrued to mere possession. Murciano, on the other
hand, was deemed to be the owner of the land by virtue of the grant by the provincial secretary. In effect,
Valenton upheld the Spanish concept of state ownership of public land.
As a fitting observation, the Court added that "[t]he policy pursued by the Spanish Government
from earliest times, requiring settlers on the public lands to obtain title deeds therefor from the
State, has been continued by the American Government in Act No. 926."[18]
C. The Public Land Acts and the Torrens System

Act No. 926, the first Public Land Act, was passed in pursuance of the provisions of the the Philippine
Bill of 1902. The law governed the disposition of lands of the public domain. It prescribed rules and
regulations for the homesteading, selling, and leasing of portions of the public domain of the Philippine
Islands, and prescribed the terms and conditions to enable persons to perfect their titles to public lands in
the Islands. It also provided for the "issuance of patents to certain native settlers upon public lands," for the
establishment of town sites and sale of lots therein, for the completion of imperfect titles, and for the
cancellation or confirmation of Spanish concessions and grants in the Islands." In short, the Public Land Act
operated on the assumption that title to public lands in the Philippine Islands remained in the government;
[19]
and that the government's title to public land sprung from the Treaty of Paris and other subsequent
treaties between Spain and the United States. [20] The term "public land" referred to all lands of the public
domain whose title still remained in the government and are thrown open to private appropriation and
settlement,[21] and excluded the patrimonial property of the government and the friar lands. [22]
Act No. 926 was superseded in 1919 by Act 2874, the second Public Land Act. This new law was
passed under the Jones Law. It was more comprehensive in scope but limited the exploitation of agricultural
lands to Filipinos and Americans and citizens of other countries which gave Filipinos the same privileges.
[23]
After the passage of the 1935 Constitution, Act 2874 was amended in 1936 by Commonwealth Act No.
141. Commonwealth Act No. 141 remains the present Public Land Law and it is essentially the same as Act
2874. The main difference between the two relates to the transitory provisions on the rights of American
citizens and corporations during the Commonwealth period at par with Filipino citizens and corporations. [24]
Grants of public land were brought under the operation of the Torrens system under Act 496, or
the Land Registration Law of 1903. Enacted by the Philippine Commission, Act 496 placed all public and
private lands in the Philippines under the Torrens system. The law is said to be almost a verbatim copy of
the Massachussetts Land Registration Act of 1898, [25] which, in turn, followed the principles and procedure of
the Torrens system of registration formulated by Sir Robert Torrens who patterned it after the Merchant
Shipping Acts in South Australia. The Torrens system requires that the government issue an official
certificate of title attesting to the fact that the person named is the owner of the property described therein,
subject to such liens and encumbrances as thereon noted or the law warrants or reserves. [26] The certificate
of title is indefeasible and imprescriptible and all claims to the parcel of land are quieted upon issuance of
said certificate. This system highly facilitates land conveyance and negotiation. [27]
D. The Philippine Constitutions

The Regalian doctrine was enshrined in the 1935 Constitution. One of the fixed and dominating
objectives of the 1935 Constitutional Convention was the nationalization and conservation of the natural
resources of the country.[28] There was an overwhelming sentiment in the Convention in favor of the
principle of state ownership of natural resources and the adoption of the Regalian doctrine. [29] State
ownership of natural resources was seen as a necessary starting point to secure recognition of the state's
power to control their disposition, exploitation, development, or utilization. [30] The delegates to the
Constitutional Convention very well knew that the concept of State ownership of land and natural resources
was introduced by the Spaniards, however, they were not certain whether it was continued and applied by
the Americans. To remove all doubts, the Convention approved the provision in the Constitution affirming
the Regalian doctrine.[31]
Thus, the 1935 Constitution, in Section 1 of Article XIII on "Conservation and Utilization of Natural
Resources," reads as follows:
"Sec. 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall
be limited to citizens of the Philippines, or to corporations or associations at least sixty per centum
of the capital of which is owned by such citizens, subject to any existing right, grant, lease, or
concession at the time of the inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, development, or utilization of any of the natural resources
shall be granted for a period exceeding twenty-five years, except as to water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of water power, in which cases beneficial use
may be the measure and the limit of the grant."
The 1973 Constitution reiterated the Regalian doctrine in Section 8, Article XIV on the "National Economy and
the Patrimony of the Nation," to wit:
"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to
the State. With the exception of agricultural, industrial or commercial, residential, and resettlement
lands of the public domain, natural resources shall not be alienated, and no license, concession, or
lease for the exploration, development, exploitation, or utilization of any of the natural resources
shall be granted for a period exceeding twenty-five years, renewable for not more than twenty-five
years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the measure and the limit of the grant."
The 1987 Constitution reaffirmed the Regalian doctrine in Section 2 of Article XII on "National
Economy and Patrimony," to wit:
"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not
more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of
water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the grant.
x x x."
Simply stated, all lands of the public domain as well as all natural resources enumerated therein,
whether on public or private land, belong to the State. It is this concept of State ownership that
petitioners claim is being violated by the IPRA.
II. THE INDIGENOUS PEOPLES RIGHTS ACT.
Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the Rights of Indigenous
Cultural Communities/ Indigenous Peoples, Creating a National Commission on Indigenous Peoples,
Establishing Implementing Mechanisms, Appropriating Funds Therefor, and for Other Purposes." It is
simply known as "The Indigenous Peoples Rights Act of 1997" or the IPRA.
The IPRA recognizes the existence of the indigenous cultural communities or indigenous
peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the ownership and
possession of their ancestral domains and ancestral lands, and defines the extent of these lands
and domains. The ownership given is the indigenous concept of ownership under customary law
which traces its origin to native title.
Other rights are also granted the ICCs/IPs, and these are:
- the right to develop lands and natural resources;
- the right to stay in the territories;
- the right in case of displacement;
- the right to safe and clean air and water;
- the right to claim parts of reservations;
- the right to resolve conflict;[32]
- the right to ancestral lands which include
a. the right to transfer land/property to/among members of the same ICCs/IPs, subject to customary
laws and traditions of the community concerned;
b. the right to redemption for a period not exceeding 15 years from date of transfer, if the transfer is to a
non-member of the ICC/IP and is tainted by vitiated consent of the ICC/IP, or if the transfer is for an
unconscionable consideration.[33]
Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to self-governance
and empowerment,[34] social justice and human rights,[35] the right to preserve and protect their culture,
traditions, institutions and community intellectual rights, and the right to develop their own sciences and
technologies.[36]
To carry out the policies of the Act, the law created the National Commission on Indigenous Peoples
(NCIP). The NCIP is an independent agency under the Office of the President and is composed of seven (7)
Commissioners belonging to ICCs/IPs from each of the ethnographic areas-- Region I and the Cordilleras;
Region II; the rest of Luzon; Island groups including Mindoro, Palawan, Romblon, Panay and the rest of the
Visayas; Northern and Western Mindanao; Southern and Eastern Mindanao; and Central Mindanao. [37] The
NCIP took over the functions of the Office for Northern Cultural Communities and the Office for Southern
Cultural Communities created by former President Corazon Aquino which were merged under a revitalized
structure.[38]
Disputes involving ICCs/IPs are to be resolved under customary laws and practices. When still
unresolved, the matter may be brought to the NCIP, which is granted quasi-judicial powers. [39] The NCIP's
decisions may be appealed to the Court of Appeals by a petition for review.
Any person who violates any of the provisions of the Act such as, but not limited to, unauthorized and/or
unlawful intrusion upon ancestral lands and domains shall be punished in accordance with customary laws
or imprisoned from 9 months to 12 years and/or fined from P100,000.00 to P500,000.00 and obliged to pay
damages.[40]
A. Indigenous Peoples
The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural Communities
(ICCs) or the Indigenous Peoples (IPs). The term "ICCs" is used in the 1987 Constitution while that of "IPs"
is the contemporary international language in the International Labor Organization (ILO) Convention
169[41] and the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples. [42]
ICCs/IPs are defined by the IPRA as:
"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples-- refer to a group of people or
homogeneous societies identified by self-ascription and ascription by others, who have continuously lived as
organized community on communally bounded and defined territory, and who have, under claims of
ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds
of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to
political, social and cultural inroads of colonization, non-indigenous religions and cultures, became
historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples who are
regarded as indigenous on account of their descent from the populations which inhabited the country, at the
time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the
establishment of present state boundaries, who retain some or all of their own social, economic, cultural and
political institutions, but who may have been displaced from their traditional domains or who may have
resettled outside their ancestral domains."
Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or homogeneous

societies who have continuously lived as an organized community on communally bounded and
defined territory. These groups of people have actually occupied, possessed and utilized their territories
under claim of ownership since time immemorial. They share common bonds of language, customs,
traditions and other distinctive cultural traits, or, they, by their resistance to political, social and cultural
inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the
Filipino majority. ICCs/IPs also include descendants of ICCs/IPs who inhabited the country at the time of
conquest or colonization, who retain some or all of their own social, economic, cultural and political
institutions but who may have been displaced from their traditional territories or who may have resettled
outside their ancestral domains.
1. Indigenous Peoples: Their History
Presently, Philippine indigenous peoples inhabit the interiors and mountains of Luzon, Mindanao,
Mindoro, Negros, Samar, Leyte, and the Palawan and Sulu group of islands. They are composed of 110
tribes and are as follows:
1. In the Cordillera Autonomous Region-- Kankaney, Ibaloi, Bontoc, Tinggian or Itneg, Ifugao, Kalinga,
Yapayao, Aeta or Agta or Pugot, and Bago of Ilocos Norte and Pangasinan; Ibanag of Isabela, Cagayan;
Ilongot of Quirino and Nueva Vizcaya; Gaddang of Quirino, Nueva Vizcaya, Itawis of Cagayan; Ivatan of
Batanes, Aeta of Cagayan, Quirino and Isabela.
2. In Region III-- Aetas.
3. In Region IV-- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal, Quezon; Alangan or Mangyan,
Batangan, Buid or Buhid, Hanunuo and Iraya of Oriental and Occidental Mindoro; Tadyawan of Occidental
Mindoro; Cuyonon, Palawanon, Tagbanua and Tao't bato of Palawan.
4. In Region V-- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan, Isarog, and Kabihug of
Camarines Norte; Agta, and Mayon of Camarines Sur; Itom of Albay, Cimaron of Sorsogon; and the Pullon
of Masbate and Camarines Sur.
5. In Region VI-- Ati of Negros Occidental, Iloilo and Antique, Capiz; the Magahat of Negros Occidental; the
Corolano and Sulod.
6. In Region VII-- Magahat of Negros Oriental and Eskaya of Bohol.
7. In Region IX-- the Badjao numbering about 192,000 in Tawi-Tawi, Zamboanga del Sur; the Kalibugan of
Basilan, the Samal, Subanon and Yakat.
8. Region X-- Numbering 1.6 million in Region X alone, the IPs are: the Banwaon, Bukidnon, Matigsalog,
Talaanding of Bukidnon; the Camiguin of Camiguin Island; the Higa-unon of Agusan del Norte, Agusan del
Sur, Bukidnon and Misamis Occidental; the Tigwahanon of Agusan del Sur, Misamis Oriental and and
Misamis Occidental, the Manobo of the Agusan provinces, and the Umayamnon of Agusan and Bukidnon.
9. In Region XI-- There are about 1,774,065 IPs in Region XI. They are tribes of the Dibabaon, Mansaka of
Davao del Norte; B'laan, Kalagan, Langilad, T'boli and Talaingod of Davao del Sur; Mamamanua of Surigao
del Sur; Mandaya of the Surigao provinces and Davao Oriental; Manobo Blit of South Cotabato; the
Mangguangon of Davao and South Cotabato; Matigsalog of Davao del Norte and Del Sur; Tagakaolo,
Tasaday and Ubo of South Cotabato; and Bagobo of Davao del sur and South Cotabato.
10. In Region XII-- Ilianen, Tiruray, Maguindanao, Maranao, Tausug, Yakan/Samal, and Iranon. [43]
How these indigenous peoples came to live in the Philippines goes back to as early as 25,000 to
30,000 B.C.
Before the time of Western contact, the Philippine archipelago was peopled largely by the Negritos,
Indonesians and Malays.[44]The strains from these groups eventually gave rise to common cultural features
which became the dominant influence in ethnic reformulation in the archipelago. Influences from the
Chinese and Indian civilizations in the third or fourth millenium B.C. augmented these ethnic
strains. Chinese economic and socio-cultural influences came by way of Chinese porcelain, silk and
traders. Indian influence found their way into the religious-cultural aspect of pre-colonial society.[45]
The ancient Filipinos settled beside bodies of water. Hunting and food gathering became
supplementary activities as reliance on them was reduced by fishing and the cultivation of the soil. [46] From
the hinterland, coastal, and riverine communities, our ancestors evolved an essentially homogeneous
culture, a basically common way of life where nature was a primary factor. Community life throughout
the archipelago was influenced by, and responded to, common ecology. The generally benign tropical
climate and the largely uniform flora and fauna favored similarities, not differences. [47] Life was essentially
subsistence but not harsh.[48]
The early Filipinos had a culture that was basically Malayan in structure and form. They had
languages that traced their origin to the Austronesian parent-stock and used them not only as media of daily
communication but also as vehicles for the expression of their literary moods. [49] They fashioned concepts
and beliefs about the world that they could not see, but which they sensed to be part of their lives. [50]They
had their own religion and religious beliefs. They believed in the immortality of the soul and life after
death. Their rituals were based on beliefs in a ranking deity whom they called Bathalang Maykapal, and a
host of other deities, in the environmental spirits and in soul spirits. The early Filipinos adored the sun, the
moon, the animals and birds, for they seemed to consider the objects of Nature as something to be
respected. They venerated almost any object that was close to their daily life, indicating the importance of
the relationship between man and the object of nature.[51]
The unit of government was the "barangay," a term that derived its meaning from the Malay word
"balangay," meaning, a boat, which transported them to these shores. [52] The barangay was basically a
family-based community and consisted of thirty to one hundred families. Each barangay was different and
ruled by a chieftain called a "dato." It was the chieftain's duty to rule and govern his subjects and promote
their welfare and interests. A chieftain had wide powers for he exercised all the functions of
government. He was the executive, legislator and judge and was the supreme commander in time of war.[53]
Laws were either customary or written. Customary laws were handed down orally from
generation to generation and constituted the bulk of the laws of the barangay. They were preserved in
songs and chants and in the memory of the elder persons in the community. [54] The written laws were those
that the chieftain and his elders promulgated from time to time as the necessity arose. [55]The oldest known
written body of laws was the Maragtas Code by Datu Sumakwel at about 1250 A.D. Other old codes are the
Muslim Code of Luwaran and the Principal Code of Sulu. [56] Whether customary or written, the laws dealt
with various subjects, such as inheritance, divorce, usury, loans, partnership, crime and punishment,
property rights, family relations and adoption. Whenever disputes arose, these were decided peacefully
through a court composed by the chieftain as "judge" and the barangay elders as "jury." Conflicts arising
between subjects of different barangays were resolved by arbitration in which a board composed of elders
from neutral barangays acted as arbiters.[57]
Baranganic society had a distinguishing feature: the absence of private property in land. The
chiefs merely administered the lands in the name of the barangay. The social order was an extension of the
family with chiefs embodying the higher unity of the community. Each individual, therefore, participated in
the community ownership of the soil and the instruments of production as a member of the barangay. [58] This
ancient communalism was practiced in accordance with the concept of mutual sharing of resources so that
no individual, regardless of status, was without sustenance. Ownership of land was non-existent or
unimportant and the right of usufruct was what regulated the development of lands. [59] Marine
resources and fishing grounds were likewise free to all. Coastal communities depended for their economic
welfare on the kind of fishing sharing concept similar to those in land communities. [60]Recognized leaders,
such as the chieftains and elders, by virtue of their positions of importance, enjoyed some economic
privileges and benefits. But their rights, related to either land and sea, were subject to their responsibility to
protect the communities from danger and to provide them with the leadership and means of survival. [61]
Sometime in the 13th century, Islam was introduced to the archipelago in Maguindanao. The
Sultanate of Sulu was established and claimed jurisdiction over territorial areas represented today by Tawi-
tawi, Sulu, Palawan, Basilan and Zamboanga. Four ethnic groups were within this jurisdiction: Sama,
Tausug, Yakan and Subanon.[62] The Sultanate of Maguindanao spread out from Cotabato toward Maranao
territory, now Lanao del Norte and Lanao del Sur.[63]
The Muslim societies evolved an Asiatic form of feudalism where land was still held in common
but was private in use. This is clearly indicated in the Muslim Code of Luwaran. The Code contains a
provision on the lease of cultivated lands. It, however, has no provision for the acquisition, transfer, cession
or sale of land.[64]
The societies encountered by Magellan and Legaspi therefore were primitive economies where most
production was geared to the use of the producers and to the fulfillment of kinship obligations. They were
not economies geared to exchange and profit. [65] Moreover, the family basis of barangay membership as well
as of leadership and governance worked to splinter the population of the islands into numerous small and
separate communities.[66]
When the Spaniards settled permanently in the Philippines in 1565, they found the Filipinos
living in barangay settlements scattered along water routes and river banks. One of the first tasks
imposed on the missionaries and the encomenderos was to collect all scattered Filipinos together in
a reduccion.[67] As early as 1551, the Spanish government assumed an unvarying solicitous attitude towards
the natives.[68] The Spaniards regarded it a sacred "duty to conscience and humanity to civilize these less
fortunate people living in the obscurity of ignorance" and to accord them the "moral and material
advantages" of community life and the "protection and vigilance afforded them by the same laws." [69]
The Spanish missionaries were ordered to establish pueblos where the church and convent would be
constructed. All the new Christian converts were required to construct their houses around the church and
the unbaptized were invited to do the same. [70] With thereduccion, the Spaniards attempted to "tame" the
reluctant Filipinos through Christian indoctrination using the convento/casa real/plazacomplex as focal
point. The reduccion, to the Spaniards, was a "civilizing" device to make the Filipinos law-abiding citizens of
the Spanish Crown, and in the long run, to make them ultimately adopt Hispanic culture and civilization. [71]
All lands lost by the old barangays in the process of pueblo organization as well as all lands not
assigned to them and the pueblos, were now declared to be crown lands or realengas, belonging to
the Spanish king. It was from the realengasthat land grants were made to non-Filipinos.[72]
The abrogation of the Filipinos' ancestral rights in land and the introduction of the concept of
public domain were the most immediate fundamental results of Spanish colonial theory and law.
[73]
The concept that the Spanish king was the owner of everything of value in the Indies or colonies
was imposed on the natives, and the natives were stripped of their ancestral rights to land. [74]
Increasing their foothold in the Philippines, the Spanish colonialists, civil and religious, classified the
Filipinos according to their religious practices and beliefs, and divided them into three types . First were
the Indios, the Christianized Filipinos, who generally came from the lowland populations. Second, were
the Moros or the Muslim communities, and third, were the infieles or the indigenous communities.[75]
The Indio was a product of the advent of Spanish culture. This class was favored by the Spaniards and
was allowed certain status although below the Spaniards. The Moros and infieles were regarded as the
lowest classes.[76]
The Moros and infieles resisted Spanish rule and Christianity. The Moros were driven from Manila
and the Visayas to Mindanao; while the infieles, to the hinterlands. The Spaniards did not pursue them
into the deep interior. The upland societies were naturally outside the immediate concern of Spanish
interest, and the cliffs and forests of the hinterlands were difficult and inaccessible, allowing the infieles, in
effect, relative security.[77] Thus, the infieles, which were peripheral to colonial administration, were not only
able to preserve their own culture but also thwarted the Christianization process, separating themselves
from the newly evolved Christian community.[78] Their own political, economic and social systems were kept
constantly alive and vibrant.
The pro-Christian or pro-Indio attitude of colonialism brought about a generally mutual feeling of
suspicion, fear, and hostility between the Christians on the one hand and the non-Christians on the
other. Colonialism tended to divide and rule an otherwise culturally and historically related populace through
a colonial system that exploited both the virtues and vices of the Filipinos. [79]
President McKinley, in his instructions to the Philippine Commission of April 7, 1900, addressed
the existence of the infieles:
"In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course
followed by Congress in permitting the tribes of our North American Indians to maintain their tribal
organization and government, and under which many of those tribes are now living in peace and
contentment, surrounded by civilization to which they are unable or unwilling to conform. Such tribal
government should, however, be subjected to wise and firm regulation; and, without undue or petty
interference, constant and active effort should be exercised to prevent barbarous practices and introduce
civilized customs."[80]
Placed in an alternative of either letting the natives alone or guiding them in the path of civilization, the
American government chose "to adopt the latter measure as one more in accord with humanity and with the
national conscience."[81]
The Americans classified the Filipinos into two: the Christian Filipinos and the non-Christian
Filipinos. The term "non-Christian" referred not to religious belief, but to a geographical area, and more
directly, "to natives of the Philippine Islands of a low grade of civilization, usually living in tribal relationship
apart from settled communities."[82]
Like the Spaniards, the Americans pursued a policy of assimilation. In 1903, they passed Act No.
253 creating the Bureau of Non-Christian Tribes (BNCT). Under the Department of the Interior, the
BNCT's primary task was to conduct ethnographic research among unhispanized Filipinos, including those
in Muslim Mindanao, with a "special view to determining the most practicable means for bringing about their
advancement in civilization and prosperity." The BNCT was modeled after the bureau dealing with
American Indians. The agency took a keen anthropological interest in Philippine cultural minorities and
produced a wealth of valuable materials about them.[83]
The 1935 Constitution did not carry any policy on the non-Christian Filipinos. The raging issue
then was the conservation of the national patrimony for the Filipinos.
In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to effectuate in a more rapid and
complete manner the economic, social, moral and political advancement of the non-Christian Filipinos or
national cultural minorities and to render real, complete, and permanent the integration of all said national
cultural minorities into the body politic, creating the Commission on National Integrationcharged with said
functions." The law called for a policy of integration of indigenous peoples into the Philippine mainstream
and for this purpose created the Commission on National Integration (CNI).[84] The CNI was given, more
or less, the same task as the BNCT during the American regime. The post-independence policy of
integration was like the colonial policy of assimilation understood in the context of a guardian-ward
relationship.[85]
The policy of assimilation and integration did not yield the desired result. Like the Spaniards and
Americans, government attempts at integration met with fierce resistance. Since World War II, a tidal
wave of Christian settlers from the lowlands of Luzon and the Visayas swamped the highlands and wide
open spaces in Mindanao. [86] Knowledge by the settlers of the Public Land Acts and the Torrens
system resulted in the titling of several ancestral lands in the settlers' names. With government
initiative and participation, this titling displaced several indigenous peoples from their lands. Worse,
these peoples were also displaced by projects undertaken by the national government in the name of
national development.[87]
It was in the 1973 Constitution that the State adopted the following provision:
"The State shall consider the customs, traditions, beliefs, and interests of national cultural communities in
the formulation and implementation of State policies."[88]
For the first time in Philippine history, the "non-Christian tribes" or the "cultural minorities"
were addressed by the highest law of the Republic, and they were referred to as "cultural
communities." More importantly this time, their "uncivilized" culture was given some recognition and their
"customs, traditions, beliefs and interests" were to be considered by the State in the formulation and
implementation of State policies. President Marcos abolished the CNI and transferred its functions to
the Presidential Adviser on National Minorities (PANAMIN). The PANAMIN was tasked to integrate the
ethnic groups that sought full integration into the larger community, and at the same time "protect the rights
of those who wish to preserve their original lifeways beside the larger community." [89] In short, while still
adopting the integration policy, the decree recognized the right of tribal Filipinos to preserve their
way of life.[90]
In 1974, President Marcos promulgated P.D. No. 410, otherwise known as the Ancestral Lands
Decree. The decree provided for the issuance of land occupancy certificates to members of the national
cultural communities who were given up to 1984 to register their claims. [91] In 1979, the Commission on the
Settlement of Land Problems was created under E.O. No. 561 which provided a mechanism for the
expeditious resolution of land problems involving small settlers, landowners, and tribal Filipinos. [92]
Despite the promulgation of these laws, from 1974 to the early 1980's, some 100,000 Kalingas and
Bontoks of the Cordillera region were displaced by the Chico River dam project of the National Power
Corporation (NPC). The Manobos of Bukidnon saw their land bulldozed by the Bukidnon Sugar Industries
Company (BUSCO). In Agusan del Sur, the National Development Company was authorized by law in 1979
to take approximately 40,550 hectares of land that later became the NDC-Guthrie plantation in Agusan del
Sur. Most of the land was possessed by the Agusan natives. [93] Timber concessions, water projects,
plantations, mining, and cattle ranching and other projects of the national government led not only to the
eviction of the indigenous peoples from their land but also to the reduction and destruction of their natural
environment.[94]
The Aquino government signified a total shift from the policy of integration to one of
preservation. Invoking her powers under the Freedom Constitution, President Aquino created the Office of
Muslim Affairs, Office for Northern Cultural Communities and the Office for Southern Cultural
Communities all under the Office of the President.[95]
The 1987 Constitution carries at least six (6) provisions which insure the right of tribal Filipinos
to preserve their way of life.[96] This Constitution goes further than the 1973 Constitution by expressly
guaranteeing the rights of tribal Filipinos to their ancestral domains and ancestral lands. By
recognizing their right to their ancestral lands and domains, the State has effectively upheld their
right to live in a culture distinctly their own.
2. Their Concept of Land
Indigenous peoples share distinctive traits that set them apart from the Filipino mainstream. They
are non-Christians. They live in less accessible, marginal, mostly upland areas. They have a system of
self-government not dependent upon the laws of the central administration of the Republic of the
Philippines. They follow ways of life and customs that are perceived as different from those of the rest of the
population.[97] The kind of response the indigenous peoples chose to deal with colonial threat worked well to
their advantage by making it difficult for Western concepts and religion to erode their customs and
traditions. The "infieles societies" which had become peripheral to colonial administration, represented, from
a cultural perspective, a much older base of archipelagic culture. The political systems were still structured
on the patriarchal and kinship oriented arrangement of power and authority. The economic activities were
governed by the concepts of an ancient communalism and mutual help. The social structure which
emphasized division of labor and distinction of functions, not status, was maintained. The cultural styles and
forms of life portraying the varieties of social courtesies and ecological adjustments were kept constantly
vibrant.[98]
Land is the central element of the indigenous peoples' existence. There is no traditional concept
of permanent, individual, land ownership. Among the Igorots, ownership of land more accurately applies to
the tribal right to use the land or to territorial control. The people are the secondary owners or stewards of
the land and that if a member of the tribe ceases to work, he loses his claim of ownership, and the land
reverts to the beings of the spirit world who are its true and primary owners. Under the concept of
"trusteeship," the right to possess the land does not only belong to the present generation but the future
ones as well.[99]
Customary law on land rests on the traditional belief that no one owns the land except the gods and
spirits, and that those who work the land are its mere stewards. [100] Customary law has a strong
preference for communal ownership, which could either be ownership by a group of individuals or families
who are related by blood or by marriage, [101] or ownership by residents of the same locality who may not be
related by blood or marriage. The system of communal ownership under customary laws draws its meaning
from the subsistence and highly collectivized mode of economic production. The Kalingas, for instance, who
are engaged in team occupation like hunting, foraging for forest products, and swidden farming found it
natural that forest areas, swidden farms, orchards, pasture and burial grounds should be communally-
owned.[102] For the Kalingas, everybody has a common right to a common economic base. Thus, as a rule,
rights and obligations to the land are shared in common.
Although highly bent on communal ownership, customary law on land also sanctions individual
ownership. The residential lots and terrace rice farms are governed by a limited system of individual
ownership. It is limited because while the individual owner has the right to use and dispose of the property,
he does not possess all the rights of an exclusive and full owner as defined under our Civil Code. [103] Under
Kalinga customary law, the alienation of individually-owned land is strongly discouraged except in marriage
and succession and except to meet sudden financial needs due to sickness, death in the family, or loss of
crops.[104] Moreover, and to be alienated should first be offered to a clan-member before any village-member
can purchase it, and in no case may land be sold to a non-member of the ili.[105]
Land titles do not exist in the indigenous peoples' economic and social system. The concept of
individual land ownership under the civil law is alien to them. Inherently colonial in origin, our
national land laws and governmental policies frown upon indigenous claims to ancestral
lands. Communal ownership is looked upon as inferior, if not inexistent.[106]
III. THE IPRA IS A NOVEL PIECE OF LEGISLATION.
A. The Legislative History of the IPRA
It was to address the centuries-old neglect of the Philippine indigenous peoples that the Tenth
Congress of the Philippines, by their joint efforts, passed and approved R.A. No. 8371, the Indigenous
Peoples Rights Act (IPRA) of 1997. The law was a consolidation of two Bills-- Senate Bill No. 1728 and
House Bill No. 9125.
Principally sponsored by Senator Juan M. Flavier,[107] Senate Bill No. 1728 was a consolidation of four
proposed measures referred to the Committees on Cultural Communities, Environment and Natural
Resources, Ways and Means, as well as Finance. It adopted almost en toto the comprehensive version of
Senate Bill Nos. 1476 and 1486 which was a result of six regional consultations and one national
consultation with indigenous peoples nationwide.[108] At the Second Regular Session of the Tenth
Congress, Senator Flavier, in his sponsorship speech, gave a background on the situation of indigenous
peoples in the Philippines, to wit:
"The Indigenous Cultural Communities, including the Bangsa Moro, have long suffered from the dominance
and neglect of government controlled by the majority. Massive migration of their Christian brothers to their
homeland shrunk their territory and many of the tribal Filipinos were pushed to the hinterlands. Resisting the
intrusion, dispossessed of their ancestral land and with the massive exploitation of their natural resources by
the elite among the migrant population, they became marginalized. And the government has been an
indispensable party to this insidious conspiracy against the Indigenous Cultural Communities (ICCs). It
organized and supported the resettlement of people to their ancestral land, which was massive during the
Commonwealth and early years of the Philippine Republic. Pursuant to the Regalian Doctrine first
introduced to our system by Spain through the Royal Decree of 13 February 1894 or the Maura Law, the
government passed laws to legitimize the wholesale landgrabbing and provide for easy titling or grant of
lands to migrant homesteaders within the traditional areas of the ICCs." [109]
Senator Flavier further declared:
"The IPs are the offsprings and heirs of the peoples who have first inhabited and cared for the land long
before any central government was established. Their ancestors had territories over which they ruled
themselves and related with other tribes. These territories- the land- include people, their dwelling, the
mountains, the water, the air, plants, forest and the animals. This is their environment in its totality. Their
existence as indigenous peoples is manifested in their own lives through political, economic, socio-cultural
and spiritual practices. The IPs culture is the living and irrefutable proof to this.
Their survival depends on securing or acquiring land rights; asserting their rights to it; and depending on
it. Otherwise, IPs shall cease to exist as distinct peoples."[110]
To recognize the rights of the indigenous peoples effectively, Senator Flavier proposed a bill based on two
postulates: (1) the concept of native title; and (2) the principle of parens patriae.
According to Senator Flavier, "[w]hile our legal tradition subscribes to the Regalian Doctrine reinstated
in Section 2, Article XII of the 1987 Constitution," our "decisional laws" and jurisprudence passed by the
State have "made exception to the doctrine." This exception was first laid down in the case of Cario v.
Insular Government where:
"x x x the court has recognized long occupancy of land by an indigenous member of the cultural
communities as one of private ownership, which, in legal concept, is termed "native title." This ruling
has not been overturned. In fact, it was affirmed in subsequent cases."[111]
Following Cario, the State passed Act No. 926, Act No. 2874, C.A. No. 141, P.D. 705, P.D. 410, P.D. 1529,
R.A. 6734 (the Organic Act for the Autonomous Region of Muslim Mindanao). These laws, explicitly or
implicitly, and liberally or restrictively, recognized "native title" or "private right" and the existence of ancestral
lands and domains. Despite the passage of these laws, however, Senator Flavier continued:
"x x x the executive department of government since the American occupation has not implemented the
policy. In fact, it was more honored in its breach than in its observance, its wanton disregard shown
during the period unto the Commonwealth and the early years of the Philippine Republic when
government organized and supported massive resettlement of the people to the land of the ICCs."
Senate Bill No. 1728 seeks to genuinely recognize the IPs right to own and possess their ancestral
land. The bill was prepared also under the principle of parens patriae inherent in the supreme power of the
State and deeply embedded in Philippine legal tradition. This principle mandates that persons suffering from
serious disadvantage or handicap, which places them in a position of actual inequality in their relation or
transaction with others, are entitled to the protection of the State.
Senate Bill No. 1728 was passed on Third Reading by twenty-one (21) Senators voting in favor
and none against, with no abstention.[112]
House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the Committee on Cultural
Communities. It was originally authored and subsequently presented and defended on the floor by Rep.
Gregorio Andolana of North Cotabato.[113]
Rep. Andolana's sponsorhip speech reads as follows:
"This Representation, as early as in the 8th Congress, filed a bill of similar implications that would promote,
recognize the rights of indigenous cultural communities within the framework of national unity and
development.
Apart from this, Mr. Speaker, is our obligation, the government's obligation to assure and ascertain that
these rights shall be well-preserved and the cultural traditions as well as the indigenous laws that remained
long before this Republic was established shall be preserved and promoted. There is a need, Mr. Speaker,
to look into these matters seriously and early approval of the substitute bill shall bring into reality the
aspirations, the hope and the dreams of more than 12 million Filipinos that they be considered in the
mainstream of the Philippine society as we fashion for the year 2000." [114]
Rep. Andolana stressed that H.B. No. 9125 is based on the policy of preservation as mandated in the
Constitution. He also emphasized that the rights of IPs to their land was enunciated in Cario v. Insular
Government which recognized the fact that they had vested rights prior to the establishment of the Spanish
and American regimes.[115]
After exhaustive interpellation, House Bill No. 9125, and its corresponding amendments, was
approved on Second Reading with no objections.
IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE CONSTITUTION.
A. Ancestral Domains and Ancestral Lands are the Private Property of Indigenous Peoples and
Do Not Constitute Part of the Land of the Public Domain.
The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains and ancestral
lands. Ancestral lands are not the same as ancestral domains. These are defined in Section 3 [a] and [b]
of the Indigenous Peoples Right Act, viz:
"Sec. 3 a) Ancestral Domains. -- Subject to Section 56 hereof, refer to all areas generally belonging to
ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim
of ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or
individually since time immemorial, continuously to the present except when interrupted by war, force
majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other
voluntary dealings entered into by government and private individuals/corporations, and which are
necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests,
pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or
otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural
resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they
traditionally had access to for their subsistence and traditional activities, particularly the home ranges of
ICCs/IPs who are still nomadic and/or shifting cultivators;
b) Ancestral Lands.-- Subject to Section 56 hereof, refers to land occupied, possessed and utilized by
individuals, families and clans who are members of the ICCs/IPs since time immemorial, by themselves or
through their predecessors-in-interest, under claims of individual or traditional group ownership,
continuously, to the present except when interrupted by war, force majeure or displacement by force, deceit,
stealth, or as a consequence of government projects and other voluntary dealings entered into by
government and private individuals/corporations, including, but not limited to, residential lots, rice terraces or
paddies, private forests, swidden farms and tree lots."
Ancestral domains are all areas belonging to ICCs/IPs held under a claim of ownership, occupied or
possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time
immemorial, continuously until the present, except when interrupted by war, force majeure or displacement
by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings with
government and/or private individuals or corporations. Ancestral domains comprise lands, inland
waters, coastal areas, and natural resources therein and includes ancestral lands, forests, pasture,
residential, agricultural, and other lands individually owned whether alienable or not, hunting
grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources. They
also include lands which may no longer be exclusively occupied by ICCs/IPs but from which they
traditionally had access to for their subsistence and traditional activities, particularly the home ranges of
ICCs/IPs who are still nomadic and/or shifting cultivators.[116]
Ancestral lands are lands held by the ICCs/IPs under the same conditions as ancestral domains
except that these are limited to lands and that these lands are not merely occupied and possessed but are
also utilized by the ICCs/IPs under claims of individual or traditional group ownership. These lands include
but are not limited to residential lots, rice terraces or paddies, private forests, swidden farms and tree lots. [117]
The procedures for claiming ancestral domains and lands are similar to the procedures embodied in
Department Administrative Order (DAO) No. 2, series of 1993, signed by then Secretary of the Department
of Environment and Natural Resources (DENR) Angel Alcala. [118] DAO No. 2 allowed the delineation of
ancestral domains by special task forces and ensured the issuance of Certificates of Ancestral Land Claims
(CALC's) and Certificates of Ancestral Domain Claims (CADC's) to IPs.
The identification and delineation of these ancestral domains and lands is a power conferred by the
IPRA on the National Commission on Indigenous Peoples (NCIP). [119] The guiding principle in identification
and delineation is self-delineation.[120] This means that the ICCs/IPs have a decisive role in determining the
boundaries of their domains and in all the activities pertinent thereto. [121]
The procedure for the delineation and recognition of ancestral domains is set forth in Sections 51 and
52 of the IPRA. The identification, delineation and certification of ancestral lands is in Section 53 of said
law.
Upon due application and compliance with the procedure provided under the law and upon finding by
the NCIP that the application is meritorious, the NCIP shall issue a Certificate of Ancestral Domain Title
(CADT) in the name of the community concerned. [122] The allocation of lands within the ancestral
domain to any individual or indigenous corporate (family or clan) claimants is left to the ICCs/IPs concerned
to decide in accordance with customs and traditions. [123] With respect to ancestral lands outside the
ancestral domain, the NCIP issues a Certificate of Ancestral Land Title (CALT).[124]
CADT's and CALT's issued under the IPRA shall be registered by the NCIP before the Register of
Deeds in the place where the property is situated.[125]
(1) Right to Ancestral Domains and Ancestral Lands: How Acquired

The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired in two
modes: (1) by native title over both ancestral lands and domains; or (2) by torrens title under the
Public Land Act and the Land Registration Act with respect to ancestral lands only.
(2) The Concept of Native Title

Native title is defined as:
"Sec. 3 [l]. Native Title-- refers to pre-conquest rights to lands and domains which, as far back as memory
reaches, have been held under a claim of private ownership by ICCs/IPs, have never been public lands and
are thus indisputably presumed to have been held that way since before the Spanish Conquest."[126]
Native title refers to ICCs/IPs' preconquest rights to lands and domains held under a claim of private
ownership as far back as memory reaches. These lands are deemed never to have been public lands and
are indisputably presumed to have been held that way since before the Spanish Conquest. The rights of
ICCs/IPs to their ancestral domains (which also include ancestral lands) by virtue of native title shall be
recognized and respected.[127] Formal recognition, when solicited by ICCs/IPs concerned, shall be embodied
in a Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the concerned ICCs/IPs
over the territories identified and delineated.[128]
Like a torrens title, a CADT is evidence of private ownership of land by native title. Native title,
however, is a right of private ownership peculiarly granted to ICCs/IPs over their ancestral lands and
domains. The IPRA categorically declares ancestral lands and domains held by native title as never to
have been public land. Domains and lands held under native title are, therefore, indisputably presumed to
have never been public lands and are private.
(a) Cario v. Insular Government[129]
The concept of native title in the IPRA was taken from the 1909 case of Cario v. Insular Government.
[130]
Cario firmly established a concept of private land title that existed irrespective of any royal grant from
the State.
In 1903, Don Mateo Cario, an Ibaloi, sought to register with the land registration court 146 hectares of
land in Baguio Municipality, Benguet Province. He claimed that this land had been possessed and occupied
by his ancestors since time immemorial; that his grandfather built fences around the property for the holding
of cattle and that his father cultivated some parts of the land. Cario inherited the land in accordance with
Igorot custom. He tried to have the land adjusted under the Spanish land laws, but no document issued
from the Spanish Crown. [131] In 1901, Cario obtained a possessory title to the land under the Spanish
Mortgage Law.[132] The North American colonial government, however, ignored his possessory title and built
a public road on the land prompting him to seek a Torrens title to his property in the land registration
court. While his petition was pending, a U.S. military reservation [133] was proclaimed over his land and,
shortly thereafter, a military detachment was detailed on the property with orders to keep cattle and
trespassers, including Cario, off the land.[134]
In 1904, the land registration court granted Cario's application for absolute ownership to the
land. Both the Government of the Philippine Islands and the U.S. Government appealed to the C.F.I. of
Benguet which reversed the land registration court and dismissed Cario's application. The Philippine
Supreme Court[135] affirmed the C.F.I. by applying the Valenton ruling. Cario took the case to the U.S.
Supreme Court.[136] On one hand, the Philippine government invoked the Regalian doctrine and contended
that Cario failed to comply with the provisions of the Royal Decree of June 25, 1880, which required
registration of land claims within a limited period of time. Cario, on the other, asserted that he was the
absolute owner of the land jure gentium, and that the land never formed part of the public domain.
In a unanimous decision written by Justice Oliver Wendell Holmes, the U.S. Supreme Court held:
"It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were held from
the Crown, and perhaps the general attitude of conquering nations toward people not recognized as entitled
to the treatment accorded to those in the same zone of civilization with themselves. It is true, also, that in
legal theory, sovereignty is absolute, and that, as against foreign nations, the United States may assert, as
Spain asserted, absolute power. But it does not follow that, as against the inhabitants of the Philippines, the
United States asserts that Spain had such power. When theory is left on one side, sovereignty is a question
of strength, and may vary in degree. How far a new sovereign shall insist upon the theoretical relation of the
subjects to the head in the past, and how far it shall recognize actual facts, are matters for it to decide." [137]
The U.S. Supreme Court noted that it need not accept Spanish doctrines. The choice was with the new
colonizer. Ultimately, the matter had to be decided under U.S. law.
The Cario decision largely rested on the North American constitutionalist's concept of "due process" as well
as the pronounced policy "to do justice to the natives." [138] It was based on the strong mandate extended to the
Islands via the Philippine Bill of 1902 that "No law shall be enacted in said islands which shall deprive any person of
life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws."
The court declared:
"The acquisition of the Philippines was not like the settlement of the white race in the United States. Whatever
consideration may have been shown to the North American Indians, the dominant purpose of the whites in America
was to occupy land. It is obvious that, however stated, the reason for our taking over the Philippines was
different. No one, we suppose, would deny that, so far as consistent with paramount necessities, our first object in
the internal administration of the islands is to do justice to the natives, not to exploit their country for private gain. By
the Organic Act of July 1, 1902, chapter 1369, section 12 (32 Statutes at Large, 691), all the property and rights
acquired there by the United States are to be administered 'for the benefit of the inhabitants thereof.' It is
reasonable to suppose that the attitude thus assumed by the United States with regard to what was unquestionably
its own is also its attitude in deciding what it will claim for its own. The same statute made a bill of rights, embodying
the safeguards of the Constitution, and, like the Constitution, extends those safeguards to all. It provides that 'no
law shall be enacted in said islands which shall deprive any person of life, liberty, or property without due process of
law, or deny to any person therein the equal protection of the laws.' In the light of the declaration that we have
quoted from section 12, it is hard to believe that the United States was ready to declare in the next breath that "any
person" did not embrace the inhabitants of Benguet, or that it meant by "property" only that which had become such
by ceremonies of which presumably a large part of the inhabitants never had heard, and that it proposed to treat as
public land what they, by native custom and by long association,-- of the profoundest factors in human thought,--
regarded as their own."[139]
The Court went further:
"[E]very presumption is and ought to be against the government in a case like the present. It might, perhaps, be
proper and sufficient to say that when, as far back as testimony or memory goes, the land has been held by
individuals under a claim of private ownership, it will be presumed to have been held in the same way from
before the Spanish conquest, and never to have been public land. Certainly in a case like this, if there is doubt
or ambiguity in the Spanish law, we ought to give the applicant the benefit of the doubt." [140]
The court thus laid down the presumption of a certain title held (1) as far back as testimony or memory went, and
(2) under a claim of private ownership. Land held by this title is presumed to "never have been public land."
Against this presumption, the U.S. Supreme Court analyzed the Spanish decrees upheld in the 1904 decision
of Valenton v. Murciano. The U.S. Supreme Court found no proof that the Spanish decrees did not honor native
title. On the contrary, the decrees discussed inValenton appeared to recognize that the natives owned some land,
irrespective of any royal grant. The Regalian doctrine declared in the preamble of the Recopilacion was all "theory
and discourse" and it was observed that titles were admitted to exist beyond the powers of the Crown, viz:
"If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof that it was bad
by that law as to satisfy us that he does not own the land. To begin with, the older decrees and laws cited
by the counsel for the plaintiff in error seem to indicate pretty clearly that the natives were recognized as
owning some lands, irrespective of any royal grant. In other words, Spain did not assume to convert all the
native inhabitants of the Philippines into trespassers or even into tenants at will. For instance, Book 4, title 12, Law
14 of the the Recopilacion de Leyes de las Indias, cited for a contrary conclusion in Valenton v. Murciano, 3
Philippine 537, while it commands viceroys and others, when it seems proper, to call for the exhibition of grants,
directs them to confirm those who hold by good grants or justa prescripcion. It is true that it begins by the
characteristic assertion of feudal overlordship and the origin of all titles in the King or his
predecessors. That was theory and discourse. The fact was that titles were admitted to exist that owed
nothing to the powers of Spain beyond this recognition in their books." (Emphasis supplied).[141]
The court further stated that the Spanish "adjustment" proceedings never held sway over unconquered
territories. The wording of the Spanish laws were not framed in a manner as to convey to the natives that failure to
register what to them has always been their own would mean loss of such land. The registration requirement was
"not to confer title, but simply to establish it;" it was "not calculated to convey to the mind of an Igorot chief the notion
that ancient family possessions were in danger, if he had read every word of it."
By recognizing this kind of title, the court clearly repudiated the doctrine of Valenton. It was frank enough,
however, to admit the possibility that the applicant might have been deprived of his land under Spanish law because
of the inherent ambiguity of the decrees and concomitantly, the various interpretations which may be given
them. But precisely because of the ambiguity and of the strong "due process mandate" of the Constitution,
the court validated this kind of title. [142] This title was sufficient, even without government administrative action,
and entitled the holder to a Torrens certificate. Justice Holmes explained:
"It will be perceived that the rights of the applicant under the Spanish law present a problem not without difficulties
for courts of a legal tradition. We have deemed it proper on that account to notice the possible effect of the change
of sovereignty and the act of Congress establishing the fundamental principles now to be observed. Upon a
consideration of the whole case we are of the opinion that law and justice require that the applicant should be
granted what he seeks, and should not be deprived of what, by the practice and belief of those among whom he
lived, was his property, through a refined interpretation of an almost forgotten law of Spain." [143]
Thus, the court ruled in favor of Cario and ordered the registration of the 148 hectares in Baguio
Municipality in his name.[144]
Examining Cario closer, the U.S. Supreme Court did not categorically refer to the title it upheld as "native
title." It simply said:
"The Province of Benguet was inhabited by a tribe that the Solicitor-General, in his argument, characterized
as a savage tribe that never was brought under the civil or military government of the Spanish Crown. It
seems probable, if not certain, that the Spanish officials would not have granted to anyone in that province
the registration to which formerly the plaintiff was entitled by the Spanish Laws, and which would have
made his title beyond question good. Whatever may have been the technical position of Spain it does not follow
that, in the view of the United States, he had lost all rights and was a mere trespasser when the present government
seized his land. The argument to that effect seems to amount to a denial of native titles through an important part
of the Island of Luzon, at least, for the want of ceremonies which the Spaniards would not have permitted and had
not the power to enforce."[145]
This is the only instance when Justice Holmes used the term "native title" in the entire length of
the Cario decision. It is observed that the widespread use of the term "native title" may be traced to Professor
Owen James Lynch, Jr., a Visiting Professor at the University of the Philippines College of Law from the Yale
University Law School. In 1982, Prof. Lynch published an article in the Philippine Law Journalentitled Native
Title, Private Right and Tribal Land Law.[146] This article was made after Professor Lynch visited over thirty tribal
communities throughout the country and studied the origin and development of Philippine land laws. [147] He
discussed Cario extensively and used the term "native title" to refer to Cario's title as discussed and upheld by
the U.S. Supreme Court in said case.
(b) Indian Title
In a footnote in the same article, Professor Lynch stated that the concept of "native title" as defined by Justice
Holmes in Cario "is conceptually similar to "aboriginal title" of the American Indians. [148] This is not surprising,
according to Prof. Lynch, considering that during the American regime, government policy towards ICCs/IPs was
consistently made in reference to native Americans. [149] This was clearly demonstrated in the case of Rubi v.
Provincial Board of Mindoro.[150]
In Rubi, the Provincial Board of Mindoro adopted a Resolution authorizing the provincial governor to remove
the Mangyans from their domains and place them in a permanent reservation in Sitio Tigbao, Lake Naujan. Any
Mangyan who refused to comply was to be imprisoned. Rubi and some Mangyans, including one who was
imprisoned for trying to escape from the reservation, filed for habeas corpus claiming deprivation of liberty under the
Board Resolution. This Court denied the petition on the ground of police power. It upheld government policy
promoting the idea that a permanent settlement was the only successful method for educating the Mangyans,
introducing civilized customs, improving their health and morals, and protecting the public forests in which they
roamed.[151] Speaking through Justice Malcolm, the court said:
"Reference was made in the President's instructions to the Commission to the policy adopted by the United States
for the Indian Tribes. The methods followed by the Government of the Philippine Islands in its dealings with the so-
called non-Christian people is said, on argument, to be practically identical with that followed by the United States
Government in its dealings with the Indian tribes. Valuable lessons, it is insisted, can be derived by an investigation
of the American-Indian policy.
From the beginning of the United States, and even before, the Indians have been treated as "in a state of pupilage."
The recognized relation between the Government of the United States and the Indians may be described as that of
guardian and ward. It is for the Congress to determine when and how the guardianship shall be terminated. The
Indians are always subject to the plenary authority of the United States. [152]
x x x.
As to the second point, the facts in the Standing Bear case and the Rubi case are not exactly identical. But even
admitting similarity of facts, yet it is known to all that Indian reservations do exist in the United States, that Indians
have been taken from different parts of the country and placed on these reservations, without any previous
consultation as to their own wishes, and that, when once so located, they have been made to remain on the
reservation for their own good and for the general good of the country. If any lesson can be drawn from the Indian
policy of the United States, it is that the determination of this policy is for the legislative and executive branches of
the government and that when once so decided upon, the courts should not interfere to upset a carefully planned
governmental system. Perhaps, just as many forceful reasons exist for the segregation of the Manguianes in
Mindoro as existed for the segregation of the different Indian tribes in the United States." [153]
Rubi applied the concept of Indian land grants or reservations in the Philippines. An Indian reservation is a part of
the public domain set apart by proper authority for the use and occupation of a tribe or tribes of Indians. [154] It may be
set apart by an act of Congress, by treaty, or by executive order, but it cannot be established by custom and
prescription.[155]
Indian title to land, however, is not limited to land grants or reservations. It also covers the "aboriginal
right of possession or occupancy." [156] The aboriginal right of possession depends on the actual occupancy of the
lands in question by the tribe or nation as their ancestral home, in the sense that such lands constitute definable
territory occupied exclusively by the particular tribe or nation. [157] It is a right which exists apart from any treaty,
statute, or other governmental action, although in numerous instances treaties have been negotiated with Indian
tribes, recognizing their aboriginal possession and delimiting their occupancy rights or settling and adjusting their
boundaries.[158]
American jurisprudence recognizes the Indians' or native Americans' rights to land they have held and
occupied before the "discovery" of the Americas by the Europeans. The earliest definitive statement by the
U.S. Supreme Court on the nature of aboriginal title was made in 1823 in Johnson & Graham's Lessee v.
M'Intosh.[159]
In Johnson, the plaintiffs claimed the land in question under two (2) grants made by the chiefs of two (2) Indian
tribes. The U.S. Supreme Court refused to recognize this conveyance, the plaintiffs being private persons. The
only conveyance that was recognized was that made by the Indians to the government of the European
discoverer. Speaking for the court, Chief Justice Marshall pointed out that the potentates of the old world believed
that they had made ample compensation to the inhabitants of the new world by bestowing civilization and
Christianity upon them; but in addition, said the court, they found it necessary, in order to avoid conflicting
settlements and consequent war, to establish the principle thatdiscovery gives title to the government by whose
subjects, or by whose authority, the discovery was made, against all other European governments, which
title might be consummated by possession. [160] The exclusion of all other Europeans gave to the nation making
the discovery the sole right of acquiring the soil from the natives and establishing settlements upon it. As regards
the natives, the court further stated that:
"Those relations which were to exist between the discoverer and the natives were to be regulated by
themselves. The rights thus acquired being exclusive, no other power could interpose between them.
In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely
disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful
occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to
their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily
diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the
fundamental principle that discovery gave exclusive title to those who made it.
While the different nations of Europe respected the right of the natives as occupants, they asserted the
ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate
dominion, a power to grant the soil, while yet in possession of the natives. These grants have been
understood by all to convey a title to the grantees, subject only to the Indian right of occupancy." [161]
Thus, the discoverer of new territory was deemed to have obtained the exclusive right to acquire Indian land
and extinguish Indian titles. Only to the discoverer-- whether to England, France, Spain or Holland-- did this right
belong and not to any other nation or private person. The mere acquisition of the right nonetheless did not
extinguish Indian claims to land. Rather, until the discoverer, by purchase or conquest, exercised its right, the
concerned Indians were recognized as the "rightful occupants of the soil, with a legal as well as just claim to retain
possession of it." Grants made by the discoverer to her subjects of lands occupied by the Indians were held to
convey a title to the grantees, subject only to the Indian right of occupancy. Once the discoverer purchased the land
from the Indians or conquered them, it was only then that the discoverer gained an absolute title unrestricted by
Indian rights.
The court concluded, in essence, that a grant of Indian lands by Indians could not convey a title paramount to
the title of the United States itself to other parties, saying:
"It has never been contended that the Indian title amounted to nothing. Their right of possession has never been
questioned. The claim of government extends to the complete ultimate title, charged with this right of
possession, and to the exclusive power of acquiring that right."[162]
It has been said that the history of America, from its discovery to the present day, proves the universal
recognition of this principle.[163]
The Johnson doctrine was a compromise. It protected Indian rights and their native lands without having to
invalidate conveyances made by the government to many U.S. citizens. [164]
Johnson was reiterated in the case of Worcester v. Georgia.[165] In this case, the State of Georgia enacted a
law requiring all white persons residing within the Cherokee nation to obtain a license or permit from the Governor of
Georgia; and any violation of the law was deemed a high misdemeanor. The plaintiffs, who were white
missionaries, did not obtain said license and were thus charged with a violation of the Act.
The U.S. Supreme Court declared the Act as unconstitutional for interfering with the treaties established
between the United States and the Cherokee nation as well as the Acts of Congress regulating intercourse with
them. It characterized the relationship between the United States government and the Indians as:
"The Indian nations were, from their situation, necessarily dependent on some foreign potentate for the supply of
their essential wants, and for their protection from lawless and injurious intrusions into their country. That power
was naturally termed their protector. They had been arranged under the protection of Great Britain; but the
extinguishment of the British power in their neighborhood, and the establishment of that of the United States in its
place, led naturally to the declaration, on the part of the Cherokees, that they were under the protection of the
United States, and of no other power. They assumed the relation with the United States which had before subsisted
with Great Britain.
This relation was that of a nation claiming and receiving the protection of one more powerful, not that of individuals
abandoning their national character, and submitting as subjects to the laws of a master." [166]
It was the policy of the U.S. government to treat the Indians as nations with distinct territorial boundaries and
recognize their right of occupancy over all the lands within their domains. Thus:
"From the commencement of our government Congress has passed acts to regulate trade and intercourse with the
Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which
treaties stipulate. All these acts, and especially that of 1802, which is still in force, manifestly consider the several
Indian nations as distinct political communities, having territorial boundaries, within which their authority is
exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but
guaranteed by the United States.
x x x.
"The Indian nations had always been considered as distinct, independent political communities, retaining
their original natural rights, as the undisputed possessors of the soil from time immemorial, with the single
exception of that imposed by irresistible power, which excluded them from intercourse with any other European
potentate than the first discoverer of the coast of the particular region claimed: and this was a restriction which those
European potentates imposed on themselves, as well as on the Indians. The very term "nation," so generally
applied to them, means "a people distinct from others." x x x.[167]
The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately
described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter
but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress. The
whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the
government of the United States."[168]
The discovery of the American continent gave title to the government of the discoverer as against all other
European governments. Designated as the naked fee,[169] this title was to be consummated by possession and was
subject to the Indian title of occupancy. The discoverer acknowledged the Indians' legal and just claim to retain
possession of the land, the Indians being the original inhabitants of the land. The discoverer nonetheless asserted
the exclusive right to acquire the Indians' land-- either by purchase, "defensive" conquest, or cession-- and in so
doing, extinguish the Indian title. Only the discoverer could extinguish Indian title because it alone asserted ultimate
dominion in itself. Thus, while the different nations of Europe respected the rights of the natives as occupants, they
all asserted the ultimate dominion and title to be in themselves.[170]
As early as the 19th century, it became accepted doctrine that although fee title to the lands occupied
by the Indians when the colonists arrived became vested in the sovereign-- first the discovering European
nation and later the original 13 States and the United States-- a right of occupancy in the Indian tribes was
nevertheless recognized. The Federal Government continued the policy of respecting the Indian right of
occupancy, sometimes called Indian title, which it accorded the protection of complete ownership. [171] But this
aboriginal Indian interest simply constitutes "permission" from the whites to occupy the land, and means mere
possession not specifically recognized as ownership by Congress. [172] It is clear that this right of occupancy based
upon aboriginal possession is not a property right. [173] It is vulnerable to affirmative action by the federal government
who, as sovereign, possessed exclusive power to extinguish the right of occupancy at will. [174] Thus, aboriginal title
is not the same as legal title. Aboriginal title rests on actual, exclusive and continuous use and occupancy for a
long time.[175] It entails that land owned by Indian title must be used within the tribe, subject to its laws and customs,
and cannot be sold to another sovereign government nor to any citizen. [176] Such title as Indians have to possess
and occupy land is in the tribe, and not in the individual Indian; the right of individual Indians to share in the tribal
property usually depends upon tribal membership, the property of the tribe generally being held in communal
ownership.[177]
As a rule, Indian lands are not included in the term "public lands," which is ordinarily used to designate such
lands as are subject to sale or other disposal under general laws. [178] Indian land which has been abandoned is
deemed to fall into the public domain. [179] On the other hand, an Indian reservation is a part of the public domain set
apart for the use and occupation of a tribe of Indians. [180] Once set apart by proper authority, the reservation ceases
to be public land, and until the Indian title is extinguished, no one but Congress can initiate any preferential right on,
or restrict the nation's power to dispose of, them.[181]
The American judiciary struggled for more than 200 years with the ancestral land claims of indigenous
Americans.[182] And two things are clear. First, aboriginal title is recognized. Second, indigenous property systems
are also recognized. From a legal point of view, certain benefits can be drawn from a comparison of Philippine IPs
to native Americans.[183] Despite the similarities between native title and aboriginal title, however, there are at present
some misgivings on whether jurisprudence on American Indians may be cited authoritatively in the Philippines. The
U.S. recognizes the possessory rights of the Indians over their land; title to the land, however, is deemed to have
passed to the U.S. as successor of the discoverer. The aboriginal title of ownership is not specifically recognized as
ownership by action authorized by Congress.[184] The protection of aboriginal title merely guards against
encroachment by persons other than the Federal Government. [185] Although there are criticisms against the refusal
to recognize the native Americans' ownership of these lands, [186] the power of the State to extinguish these titles has
remained firmly entrenched.[187]
Under the IPRA, the Philippine State is not barred form asserting sovereignty over the ancestral domains and
ancestral lands.[188] The IPRA, however, is still in its infancy and any similarities between its application in the
Philippines vis--vis American Jurisprudence on aboriginal title will depend on the peculiar facts of each case.
(c) Why the Cario doctrine is unique
In the Philippines, the concept of native title first upheld in Cario and enshrined in the IPRA grants ownership,
albeit in limited form, of the land to the ICCs/IPs. Native title presumes that the land is private and was never
public. Cario is the only case that specifically and categorically recognizes native title. The long line of
cases citing Cario did not touch on native title and the private character of ancestral domains and
lands. Cario was cited by the succeeding cases to support the concept of acquisitive prescription under
the Public Land Act which is a different matter altogether. Under the Public Land Act, land sought to be
registered must be public agricultural land. When the conditions specified in Section 48 [b] of the Public Land Act
are complied with, the possessor of the land is deemed to have acquired, by operation of law, a right to a grant of
the land.[189] The land ceases to be part of the public domain, [190] ipso jure,[191]and is converted to private property by
the mere lapse or completion of the prescribed statutory period.
It was only in the case of Oh Cho v. Director of Lands[192] that the court declared that the rule that all lands that
were not acquired from the government, either by purchase or grant, belong to the public domain has an
exception. This exception would be any land that should have been in the possession of an occupant and of his
predecessors-in-interest since time immemorial. It is this kind of possession that would justify the presumption that
the land had never been part of the public domain or that it had been private property even before the Spanish
conquest.[193] Oh Cho, however, was decided under the provisions of the Public Land Act and Cario was cited to
support the applicant's claim of acquisitive prescription under the said Act.
All these years, Cario had been quoted out of context simply to justify long, continuous, open and adverse
possession in the concept of owner of public agricultural land. It is this long, continuous, open and adverse
possession in the concept of owner of thirty years both for ordinary citizens [194] and members of the national cultural
minorities[195] that converts the land from public into private and entitles the registrant to a torrens certificate of title.
(3) The Option of Securing a Torrens Title to the Ancestral Land Indicates that the Land is Private.
The private character of ancestral lands and domains as laid down in the IPRA is further strengthened by the
option given to individual ICCs/IPs over their individually-owned ancestral lands. For purposes of registration
under the Public Land Act and the Land Registration Act, the IPRA expressly converts ancestral land into
public agricultural land which may be disposed of by the State. The necessary implication is that ancestral
land is private. It, however, has to be first converted to public agricultural land simply for registration
purposes. To wit:
"Sec. 12. Option to Secure Certificate of Title Under Commonwealth Act 141, as amended, or the Land Registration
Act 496-- Individual members of cultural communities, with respect to their individually-owned ancestral lands who,
by themselves or through their predecessors-in-interest, have been in continuous possession and occupation of the
same in the concept of owner since time immemorial or for a period of not less than thirty (30) years immediately
preceding the approval of this Act and uncontested by the members of the same ICCs/IPs shall have the option to
secure title to their ancestral lands under the provisions of Commonwealth Act 141, as amended, or the Land
Registration Act 496.
For this purpose, said individually-owned ancestral lands, which are agricultural in character and actually used for
agricultural, residential, pasture, and tree farming purposes, including those with a slope of eighteen percent (18%)
or more, are hereby classified as alienable and disposable agricultural lands.
The option granted under this section shall be exercised within twenty (20) years from the approval of this Act." [196]
ICCs/IPs are given the option to secure a torrens certificate of title over their individually-owned ancestral
lands. This option is limited to ancestral lands only, not domains, and such lands must be individually, not
communally, owned.
Ancestral lands that are owned by individual members of ICCs/IPs who, by themselves or through their
predecessors-in-interest, have been in continuous possession and occupation of the same in the concept of owner
since time immemorial[197] or for a period of not less than 30 years, which claims are uncontested by the members of
the same ICCs/IPs, may be registered under C.A. 141, otherwise known as the Public Land Act, or Act 496, the
Land Registration Act. For purposes of registration, the individually-owned ancestral lands are classified as
alienable and disposable agricultural lands of the public domain, provided, they are agricultural in character and are
actually used for agricultural, residential, pasture and tree farming purposes. These lands shall be classified as
public agricultural lands regardless of whether they have a slope of 18% or more.
The classification of ancestral land as public agricultural land is in compliance with the requirements of the
Public Land Act and the Land Registration Act. C.A. 141, the Public Land Act, deals specifically with lands of the
public domain.[198] Its provisions apply to those lands "declared open to disposition or concession" x x x "which have
not been reserved for public or quasi-public purposes, nor appropriated by the Government, nor in any manner
become private property, nor those on which a private right authorized and recognized by this Act or any other valid
law x x x or which having been reserved or appropriated, have ceased to be so." [199] Act 496, the Land Registration
Act, allows registration only of private lands and public agricultural lands. Since ancestral domains and lands are
private, if the ICC/IP wants to avail of the benefits of C.A. 141 and Act 496, the IPRA itself converts his
ancestral land, regardless of whether the land has a slope of eighteen per cent (18%) or over, [200] from
private to public agricultural land for proper disposition.
The option to register land under the Public Land Act and the Land Registration Act has nonetheless a limited
period. This option must be exercised within twenty (20) years from October 29, 1997, the date of approval of the
IPRA.
Thus, ancestral lands and ancestral domains are not part of the lands of the public domain. They are
private and belong to the ICCs/IPs. Section 3 of Article XII on National Economy and Patrimony of the 1987
Constitution classifies lands of the public domain into four categories: (a) agricultural, (b) forest or timber, (c) mineral
lands, and (d) national parks. Section 5 of the same Article XII mentions ancestral lands and ancestral domains
but it does not classify them under any of the said four categories. To classify them as public lands under any
one of the four classes will render the entire IPRA law a nullity. The spirit of the IPRA lies in the distinct concept
of ancestral domains and ancestral lands. The IPRA addresses the major problem of the ICCs/IPs which is loss of
land. Land and space are of vital concern in terms of sheer survival of the ICCs/IPs. [201]
The 1987 Constitution mandates the State to "protect the rights of indigenous cultural communities to
their ancestral lands" and that "Congress provide for the applicability of customary laws x x x in
determining the ownership and extent of ancestral domain."[202] It is the recognition of the ICCs/IPs distinct
rights of ownership over their ancestral domains and lands that breathes life into this constitutional
mandate.
B. The right of ownership and possession by the ICCs/IPs of their ancestral domains is a limited form of
ownership and does not include the right to alienate the same.
Registration under the Public Land Act and Land Registration Act recognizes the concept of ownership under
the civil law. This ownership is based on adverse possession for a specified period, and harkens to Section 44 of
the Public Land Act on administrative legalization (free patent) of imperfect or incomplete titles and Section 48 (b)
and (c) of the same Act on the judicial confirmation of imperfect or incomplete titles. Thus:
"Sec. 44. Any natural-born citizen of the Philippines who is not the owner of more than twenty-four hectares and
who since July fourth, 1926 or prior thereto, has continuously occupied and cultivated, either by himself or through
his predecessors-in-interest, a tract or tracts of agricultural public lands subject to disposition, or who shall have paid
the real estate tax thereon while the same has not been occupied by any person shall be entitled, under the
provisions of this chapter, to have a free patent issued to him for such tract or tracts of such land not to exceed
twenty-four hectares.
A member of the national cultural minorities who has continuously occupied and cultivated, either by
himself or through his predecessors-in-interest, a tract or tracts of land, whether disposable or not since
July 4, 1955, shall be entitled to the right granted in the preceding paragraph of this section: Provided, That
at the time he files his free patent application he is not the owner of any real property secured or disposable
under the provision of the Public Land Law.[203]
x x x.
"Sec. 48. The following described citizens of the Philippines, occupying lands of the public domain or claiming to
own any such lands or an interest therein, but whose titles have not been perfected or completed, may apply to the
Court of First Instance of the province where the land is located for confirmation of their claims and the issuance of a
certificate of title therefor, under the Land Registration Act, to wit:
(a) [perfection of Spanish titles] xxx.
(b) Those who by themselves or through their predecessors-in-interest have been in open, continuous, exclusive,
and notorious possession and occupation of agricultural lands of the public domain, under a bona fide claim of
acquisition or ownership, for at least thirty years immediately preceding the filing of the application for confirmation
of title except when prevented by war or force majeure. These shall be conclusively presumed to have performed
all the conditions essential to a Government grant and shall be entitled to a certificate of title under the provisions of
this Chapter.
(c) Members of the national cultural minorities who by themselves or through their predecessors-in-interest
have been in open, continuous, exclusive and notorious possession and occupation of lands of the public
domain suitable to agriculture, whether disposable or not, under a bona fide claim of ownership for at least
30 years shall be entitled to the rights granted in sub-section (b) hereof."[204]
Registration under the foregoing provisions presumes that the land was originally public agricultural land but
because of adverse possession since July 4, 1955 (free patent) or at least thirty years (judicial confirmation), the
land has become private. Open, adverse, public and continuous possession is sufficient, provided, the possessor
makes proper application therefor. The possession has to be confirmed judicially or administratively after which a
torrens title is issued.
A torrens title recognizes the owner whose name appears in the certificate as entitled to all the rights of
ownership under the civil law. The Civil Code of the Philippines defines ownership in Articles 427, 428 and
429. This concept is based on Roman Law which the Spaniards introduced to the Philippines through the Civil
Code of 1889. Ownership, under Roman Law, may be exercised over things or rights. It primarily includes the right
of the owner to enjoy and dispose of the thing owned. And the right to enjoy and dispose of the thing includes the
right to receive from the thing what it produces, [205] the right to consume the thing by its use, [206] the right to alienate,
encumber, transform or even destroy the thing owned, [207] and the right to exclude from the possession of the thing
owned by any other person to whom the owner has not transmitted such thing. [208]
1. The Indigenous Concept of Ownership and Customary Law.
Ownership of ancestral domains by native title does not entitle the ICC/IP to a torrens title but to a Certificate of
Ancestral Domain Title (CADT). The CADT formally recognizes the indigenous concept of ownership of the
ICCs/IPs over their ancestral domain. Thus:
"Sec. 5. Indigenous concept of ownership.- Indigenous concept of ownership sustains the view that ancestral
domains and all resources found therein shall serve as the material bases of their cultural integrity. The indigenous
concept of ownership generally holds that ancestral domains are the ICCs/IPs private but community property which
belongs to all generations and therefore cannot be sold, disposed or destroyed. It likewise covers sustainable
traditional resource rights."
The right of ownership and possession of the ICCs/IPs to their ancestral domains is held under the
indigenous concept of ownership. This concept maintains the view that ancestral domains are the ICCs/IPs
private but community property. It is private simply because it is not part of the public domain. But its
private character ends there. The ancestral domain is owned in common by the ICCs/IPs and not by one
particular person. The IPRA itself provides that areas within the ancestral domains, whether delineated or not, are
presumed to be communally held.[209] These communal rights, however, are not exactly the same as co-
ownership rights under the Civil Code.[210] Co-ownership gives any co-owner the right to demand partition of the
property held in common. The Civil Code expressly provides that "[n]o co-owner shall be obliged to remain in the
co-ownership." Each co-owner may demand at any time the partition of the thing in common, insofar as his share is
concerned.[211] To allow such a right over ancestral domains may be destructive not only of customary law of the
community but of the very community itself.[212]
Communal rights over land are not the same as corporate rights over real property, much less
corporate condominium rights. A corporation can exist only for a maximum of fifty (50) years subject to an
extension of another fifty years in any single instance. [213] Every stockholder has the right to disassociate himself
from the corporation.[214] Moreover, the corporation itself may be dissolved voluntarily or involuntarily.[215]
Communal rights to the land are held not only by the present possessors of the land but extends to all
generations of the ICCs/IPs, past, present and future, to the domain. This is the reason why the ancestral
domain must be kept within the ICCs/IPs themselves. The domain cannot be transferred, sold or conveyed to other
persons. It belongs to the ICCs/IPs as a community.
Ancestral lands are also held under the indigenous concept of ownership. The lands are
communal. These lands, however, may be transferred subject to the following limitations: (a) only to the members
of the same ICCs/IPs; (b) in accord with customary laws and traditions; and (c) subject to the right of redemption of
the ICCs/IPs for a period of 15 years if the land was transferred to a non-member of the ICCs/IPs.
Following the constitutional mandate that "customary law govern property rights or relations in determining the
ownership and extent of ancestral domains," [216] the IPRA, by legislative fiat, introduces a new concept of
ownership. This is a concept that has long existed under customary law.[217]
Custom, from which customary law is derived, is also recognized under the Civil Code as a source of
law.[218] Some articles of the Civil Code expressly provide that custom should be applied in cases where no codal
provision is applicable.[219] In other words, in the absence of any applicable provision in the Civil Code, custom, when
duly proven, can define rights and liabilities.[220]
Customary law is a primary, not secondary, source of rights under the IPRA and uniquely applies to
ICCs/IPs. Its recognition does not depend on the absence of a specific provision in the civil law. The
indigenous concept of ownership under customary law is specifically acknowledged and recognized, and coexists
with the civil law concept and the laws on land titling and land registration. [221]
To be sure, the indigenous concept of ownership exists even without a paper title. The CADT is merely a
"formal recognition" of native title. This is clear from Section 11 of the IPRA, to wit:
"Sec. 11. Recognition of Ancestral Domain Rights.-- The rights of ICCs/IPs to their ancestral domains by virtue of
Native Title shall be recognized and respected. Formal recognition, when solicited by ICCs/IPs concerned shall be
embodied in a Certificate of Ancestral Domain Title, which shall recognize the title of the concerned ICCs/IPs over
the territories identified and delineated."
The moral import of ancestral domain, native land or being native is "belongingness" to the land, being people
of the land-- by sheer force of having sprung from the land since time beyond recall, and the faithful nurture of the
land by the sweat of one's brow. This is fidelity of usufructuary relation to the land-- the possession of stewardship
through perduring, intimate tillage, and the mutuality of blessings between man and land; from man, care for land;
from the land, sustenance for man.[222]
C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the Regalian Doctrine Enshrined in Section 2,
Article XII of the 1987 Constitution.
1. The Rights of ICCs/IPs Over Their Ancestral Domains and Lands
The IPRA grants the ICCs/IPs several rights over their ancestral domains and ancestral lands. Section 7
provides for the rights over ancestral domains:
"Sec. 7. Rights to Ancestral Domains.-- The rights of ownership and possession of ICCs/IPs to their ancestral
domains shall be recognized and protected. Such rights include:
a) Right of Ownership.- The right to claim ownership over lands, bodies of water traditionally and actually
occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made
by them at any time within the domains;
b) Right to Develop Lands and Natural Resources.-- Subject to Section 56 hereof, the right to develop, control
and use lands and territories traditionally occupied, owned, or used; to manage and conserve natural
resources within the territories and uphold the responsibilities for future generations; to benefit and share
the profits from allocation and utilization of the natural resources found therein; the right to negotiate the
terms and conditions for the exploration of natural resources in the areas for the purpose of ensuring
ecological, environmental protection and the conservation measures, pursuant to national and customary
laws; the right to an informed and intelligent participation in the formulation and implementation of any project,
government or private, that will affect or impact upon the ancestral domains and to receive just and fair
compensation for any damages which they may sustain as a result of the project; and the right to effective measures
by the government to prevent any interference with, alienation and encroachment upon these rights;"
c) Right to Stay in the Territories.-- The right to stay in the territory and not to be removed therefrom. No ICCs/IPs
will be relocated without their free and prior informed consent, nor through any means other than eminent domain. x
x x;
d) Right in Case of Displacement.-- In case displacement occurs as a result of natural catastrophes, the State shall
endeavor to resettle the displaced ICCs/IPs in suitable areas where they can have temporary life support systems: x
x x;
e) Right to Regulate the Entry of Migrants.-- Right to regulate the entry of migrant settlers and organizations into
their domains;
f) Right to Safe and Clean Air and Water.--For this purpose, the ICCs/IPs shall have access to integrated systems
for the management of their inland waters and air space;
g) Right to Claim Parts of Reservations.-- The right to claim parts of the ancestral domains which have been
reserved for various purposes, except those reserved and intended for common and public welfare and service;
h) Right to Resolve Conflict.-- Right to resolve land conflicts in accordance with customary laws of the area where
the land is located, and only in default thereof shall the complaints be submitted to amicable settlement and to the
Courts of Justice whenever necessary."
Section 8 provides for the rights over ancestral lands:
"Sec. 8. Rights to Ancestral Lands.-- The right of ownership and possession of the ICCs/IPs to their ancestral lands
shall be recognized and protected.
a) Right to transfer land/property.-- Such right shall include the right to transfer land or property rights to/among
members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned.
b) Right to Redemption.-- In cases where it is shown that the transfer of land/property rights by virtue of any
agreement or devise, to a non-member of the concerned ICCs/IPs is tainted by the vitiated consent of the ICCs/IPs,
or is transferred for an unconscionable consideration or price, the transferor ICC/IP shall have the right to redeem
the same within a period not exceeding fifteen (15) years from the date of transfer."
Section 7 (a) defines the ICCs/IPs the right of ownership over their ancestral domains which covers (a)
lands, (b) bodies of water traditionally and actually occupied by the ICCs/IPs, (c) sacred places, (d) traditional
hunting and fishing grounds, and (e) all improvements made by them at any time within the domains. The right of
ownership includes the following rights: (1) the right to develop lands and natural resources; (b) the right to stay in
the territories; (c) the right to resettlement in case of displacement; (d) the right to regulate the entry of migrants; (e)
the right to safe and clean air and water; (f) the right to claim parts of the ancestral domains as reservations; and (g)
the right to resolve conflict in accordance with customary laws.
Section 8 governs their rights to ancestral lands. Unlike ownership over the ancestral domains, Section 8 gives
the ICCs/IPs also the right to transfer the land or property rights to members of the same ICCs/IPs or non-members
thereof. This is in keeping with the option given to ICCs/IPs to secure a torrens title over the ancestral lands, but not
to domains.
2. The Right of ICCs/IPs to Develop Lands and Natural Resources Within the Ancestral Domains Does Not
Deprive the State of Ownership Over the Natural Resources and Control and Supervision in their Development and
Exploitation.
The Regalian doctrine on the ownership, management and utilization of natural resources is declared
in Section 2, Article XII of the 1987 Constitution, viz:
"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces
of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are
owned by the State. With the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources shall be under the full control
and supervision of the State. The State may directly undertake such activities, or, it may enter into co-
production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be
for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms
and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, water
supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure
and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic
cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral
oils according to the general terms and conditions provided by law, based on real contributions to the economic
growth and general welfare of the country. In such agreements, the state shall promote the development and use of
local scientific and technical resources.
days from its execution."[223]
All lands of the public domain and all natural resources-- waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources-- are owned by the State. The Constitution provides that in the exploration, development and utilization
of these natural resources, the State exercises full control and supervision, and may undertake the same in four (4)
modes:
1. The State may directly undertake such activities; or
2. The State may enter into co-production, joint venture or production-sharing agreements with Filipino
citizens or qualified corporations;
3. Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens;
4. For the large-scale exploration, development and utilization of minerals, petroleum and other mineral
oils, the President may enter into agreements with foreign-owned corporations involving technical or
financial assistance.
As owner of the natural resources, the State is accorded primary power and responsibility in the
exploration, development and utilization of these natural resources. The State may directly undertake the
exploitation and development by itself, or, it may allow participation by the private sector through co-production,
[224]
joint venture,[225] or production-sharing agreements.[226] These agreements may be for a period of 25 years,
renewable for another 25 years. The State, through Congress, may allow the small-scale utilization of natural
resources by Filipino citizens. For the large-scale exploration of these resources, specifically minerals, petroleum
and other mineral oils, the State, through the President, may enter into technical and financial assistance
agreements with foreign-owned corporations.
Under the Philippine Mining Act of 1995, (R.A. 7942) and the People's Small-Scale Mining Act of 1991 (R.A.
7076) the three types of agreements, i.e., co-production, joint venture or production-sharing, may apply to both
large-scale[227] and small-scale mining.[228] "Small-scale mining" refers to "mining activities which rely heavily on
manual labor using simple implements and methods and do not use explosives or heavy mining equipment." [229]
Examining the IPRA, there is nothing in the law that grants to the ICCs/IPs ownership over the natural
resources within their ancestral domains. The right of ICCs/IPs in their ancestral domains includes ownership,
but this "ownership" is expressly defined and limited in Section 7 (a) as:
"Sec. 7. a) Right of ownership-- The right to claim ownership over lands, bodies of water traditionally and actually
occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them
at any time within the domains;"
The ICCs/IPs are given the right to claim ownership over "lands, bodies of water traditionally and actually occupied
by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time
within the domains." It will be noted that this enumeration does not mention bodies of water not occupied by the
ICCs/IPs, minerals, coal, wildlife, flora and fauna in the traditional hunting grounds, fish in the traditional fishing
grounds, forests or timber in the sacred places, etc. and all other natural resources found within the ancestral
domains. Indeed, the right of ownership under Section 7 (a) does not cover
"waters, minerals, coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna and all other natural resources" enumerated in
Section 2, Article XII of the 1987 Constitution as belonging to the State.
The non-inclusion of ownership by the ICCs/IPs over the natural resources in Section 7(a) complies with the
Regalian doctrine.
(a) Section 1, Part II, Rule III of the Implementing Rules Goes Beyond the Parameters of Sec. 7 (a) of the
IPRA And is Unconstitutional.
The Rules Implementing the IPRA[230] in Section 1, Part II, Rule III reads:
"Section 1. Rights of Ownership. ICCs/IPs have rights of ownership over lands, waters, and natural resources and
all improvements made by them at any time within the ancestral domains/ lands. These rights shall include, but not
limited to, the right over the fruits, the right to possess, the right to use, right to consume, right to exclude and right
to recover ownership, and the rights or interests over land and natural resources. The right to recover shall be
particularly applied to lands lost through fraud or any form or vitiated consent or transferred for an unconscionable
price."
Section 1 of the Implementing Rules gives the ICCs/IPs rights of ownership over "lands, waters and natural
resources." The term "natural resources" is not one of those expressly mentioned in Section 7 (a) of the law. Our
Constitution and jurisprudence clearly declare that the right to claim ownership over land does not necessarily
include the right to claim ownership over the natural resources found on or under the land. [231]The IPRA itself
makes a distinction between land and natural resources. Section 7 (a) speaks of the right of ownership only
over the land within the ancestral domain. It is Sections 7 (b) and 57 of the law that speak of natural
resources, and these provisions, as shall be discussed later, do not give the ICCs/IPs the right of ownership
over these resources.
The constitutionality of Section 1, Part II, Rule III of the Implementing Rules was not specifically and
categorically challenged by petitioners. Petitioners actually assail the constitutionality of the Implementing Rules in
general.[232] Nevertheless, to avoid any confusion in the implementation of the law, it is necessary to declare that the
inclusion of "natural resources" in Section 1, Part II, Rule III of the Implementing Rules goes beyond the parameters
of Section 7 (b) of the law and is contrary to Section 2, Article XII of the 1987 Constitution.
(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b) of the IPRA Is Allowed Under
Paragraph 3, Section 2 of Article XII of the Constitution.
Ownership over natural resources remain with the State and the IPRA in Section 7 (b) merely grants the
ICCs/IPs the right to manage them,viz:
"Sec. 7 (b) Right to Develop Lands and Natural Resources.-- Subject to Section 56 hereof, right to develop, control
and use lands and territoriestraditionally occupied, owned, or used; to manage and conserve natural
resources within the territories and uphold the responsibilities for future generations; to benefit and share the profits
from allocation and utilization of the natural resources found therein; the right to negotiate the terms and conditions
for the exploration of natural resources in the areas for the purpose of ensuring ecological, environmental protection
and the conservation measures, pursuant to national and customary laws; the right to an informed and intelligent
participation in the formulation and implementation of any project, government or private, that will affect or impact
upon the ancestral domains and to receive just and fair compensation for any damages which they may sustain as a
result of the project; and the right to effective measures by the government to prevent any interference with,
alienation and encroachment upon these rights;"
The right to develop lands and natural resources under Section 7 (b) of the IPRA enumerates the following
rights:
a) the right to develop, control and use lands and territories traditionally occupied;
b) the right to manage and conserve natural resources within the territories and uphold the responsibilities for future
generations;
c) the right to benefit and share the profits from the allocation and utilization of the natural resources found therein;
d) the right to negotiate the terms and conditions for the exploration of natural resources for the purpose of ensuring
ecological, environmental protection and the conservation measures, pursuant to national and customary laws;
e) the right to an informed and intelligent participation in the formulation and implementation of any project,
government or private, that will affect or impact upon the ancestral domains and to receive just and fair
compensation for any damages which they may sustain as a result of the project;
f) the right to effective measures by the government to prevent any interference with, alienation and encroachment
upon these rights.[233]
Ownership over the natural resources in the ancestral domains remains with the State and the ICCs/IPs are
merely granted the right to "manage and conserve" them for future generations, "benefit and share" the
profits from their allocation and utilization, and "negotiate the terms and conditions for their exploration"
for the purpose of "ensuring ecological and environmental protection and conservation measures." It must
be noted that the right to negotiate the terms and conditions over the natural resources covers only their exploration
which must be for the purpose of ensuring ecological and environmental protection of, and conservation measures
in the ancestral domain. It does not extend to the exploitation and development of natural resources.
Simply stated, the ICCs/IPs' rights over the natural resources take the form of management or
stewardship. For the ICCs/IPs may use these resources and share in the profits of their utilization or negotiate the
terms for their exploration. At the same time, however, the ICCs/IPs must ensure that the natural resources within
their ancestral domains are conserved for future generations and that the "utilization" of these resources must not
harm the ecology and environment pursuant to national and customary laws. [234]
The limited rights of "management and use" in Section 7 (b) must be taken to contemplate small-scale
utilization of natural resources as distinguished from large-scale. Small-scale utilization of natural
resources is expressly allowed in the third paragraph of Section 2, Article XII of the Constitution "in
recognition of the plight of forest dwellers, gold panners, marginal fishermen and others similarly situated who
exploit our natural resources for their daily sustenance and survival." [235] Section 7 (b) also expressly mandates the
ICCs/IPs to manage and conserve these resources and ensure environmental and ecological protection within the
domains, which duties, by their very nature, necessarily reject utilization in a large-scale.
(c) The Large-Scale Utilization of Natural Resources In Section 57 of the IPRA Is Allowed Under
Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.
Section 57 of the IPRA provides:
"Sec. 57. Natural Resources within Ancestral Domains.-- The ICCs/IPs shall have priority rights in the harvesting,
extraction, development or exploitation of any natural resources within the ancestral domains. A non-member
of the ICCs/IPs concerned may be allowed to take part in the development and utilization of the natural resources
for a period of not exceeding twenty-five (25) years renewable for not more than twenty-five (25) years: Provided,
That a formal and written agreement is entered into with the ICCs/IPs concerned or that the community, pursuant to
its own decision-making process, has agreed to allow such operation: Provided finally, That the NCIP may exercise
visitorial powers and take appropriate action to safeguard the rights of the ICCs/IPs under the same contract."
Section 57 speaks of the "harvesting, extraction, development or exploitation of natural resources within
ancestral domains" and "gives the ICCs/IPs 'priority rights' therein." The terms "harvesting, extraction,
development or exploitation" of any natural resources within the ancestral domains obviously refer to large-
scale utilization. It is utilization not merely for subsistence but for commercial or other extensive use that require
technology other than manual labor.[236] The law recognizes the probability of requiring a non-member of the
ICCs/IPs to participate in the development and utilization of the natural resources and thereby allows such
participation for a period of not more than 25 years, renewable for another 25 years. This may be done on condition
that a formal written agreement be entered into by the non-member and members of the ICCs/IPs.
Section 57 of the IPRA does not give the ICCs/IPs the right to "manage and conserve" the natural
resources. Instead, the law only grants the ICCs/IPs "priority rights" in the development or exploitation
thereof. Priority means giving preference. Having priority rights over the natural resources does not necessarily
mean ownership rights. The grant of priority rights implies that there is a superior entity that owns these resources
and this entity has the power to grant preferential rights over the resources to whosoever itself chooses.
Section 57 is not a repudiation of the Regalian doctrine. Rather, it is an affirmation of the said doctrine that all
natural resources found within the ancestral domains belong to the State. It incorporates by implication the
Regalian doctrine, hence, requires that the provision be read in the light of Section 2, Article XII of the 1987
Constitution. Interpreting Section 2, Article XII of the 1987 Constitution [237] in relation to Section 57 of IPRA,
the State, as owner of these natural resources, may directly undertake the development and exploitation of
the natural resources by itself, or in the alternative, it may recognize the priority rights of the ICCs/IPs as
owners of the land on which the natural resources are found by entering into a co-production, joint venture,
or production-sharing agreement with them. The State may likewise enter into any of said agreements with
a non-member of the ICCs/IPs, whether natural or juridical, or enter into agreements with foreign-owned
corporations involving either technical or financial assistance for the large-scale exploration, development
and utilization of minerals, petroleum, and other mineral oils, or allow such non-member to participate in its
agreement with the ICCs/IPs. If the State decides to enter into an agreement with a non-ICC/IP member, the
National Commission on Indigenous Peoples (NCIP) shall ensure that the rights of the ICCs/IPs under the
agreement shall be protected. The agreement shall be for a period of 25 years, renewable for another 25 years.
To reiterate, in the large-scale utilization of natural resources within the ancestral domains, the State, as owner
of these resources, has four (4) options: (1) it may, of and by itself, directly undertake the development and
exploitation of the natural resources; or (2) it may recognize the priority rights of the ICCs/IPs by entering into an
agreement with them for such development and exploitation; or (3) it may enter into an agreement with a non-
member of the ICCs/IPs, whether natural or juridical, local or foreign; or (4) it may allow such non-member to
participate in the agreement with the ICCs/IPs.
The rights granted by the IPRA to the ICCs/IPs over the natural resources in their ancestral domains
merely gives the ICCs/IPs, as owners and occupants of the land on which the resources are found, the right
to the small-scale utilization of these resources, and at the same time, a priority in their large-scale
development and exploitation. Section 57 does not mandate the State to automatically give priority to the
ICCs/IPs. The State has several options and it is within its discretion to choose which option to
pursue. Moreover, there is nothing in the law that gives the ICCs/IPs the right to solely undertake the large-scale
development of the natural resources within their domains. The ICCs/IPs must undertake such endeavour
always under State supervision or control. This indicates that the State does not lose control and ownership over
the resources even in their exploitation. Sections 7 (b) and 57 of the law simply give due respect to the ICCs/IPs
who, as actual occupants of the land where the natural resources lie, have traditionally utilized these resources for
their subsistence and survival.
Neither is the State stripped of ownership and control of the natural resources by the following provision:
"Section 59. Certification Precondition.-- All departments and other governmental agencies shall henceforth be
strictly enjoined from issuing, renewing or granting any concession, license or lease, or entering into any production-
sharing agreement. without prior certification from the NCIP that the area affected does not overlap with any
ancestral domain. Such certification shall only be issued after a field-based investigation is conducted by the
Ancestral Domains Office of the area concerned: Provided, That no certification shall be issued by the NCIP without
the free and prior informed and written consent of the ICCs/IPs concerned: Provided, further, That no department,
government agency or government-owned or -controlled corporation may issue new concession, license, lease, or
production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs
shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the
requirement of this consultation process."
Concessions, licenses, lease or production-sharing agreements for the exploitation of natural resources shall not be
issued, renewed or granted by all departments and government agencies without prior certification from the NCIP
that the area subject of the agreement does not overlap with any ancestral domain. The NCIP certification shall be
issued only after a field-based investigation shall have been conducted and the free and prior informed written
consent of the ICCs/IPs obtained. Non-compliance with the consultation requirement gives the ICCs/IPs the right to
stop or suspend any project granted by any department or government agency.
As its subtitle suggests, this provision requires as a precondition for the issuance of any concession, license or
agreement over natural resources, that a certification be issued by the NCIP that the area subject of the agreement
does not lie within any ancestral domain. The provision does not vest the NCIP with power over the other agencies
of the State as to determine whether to grant or deny any concession or license or agreement. It merely gives the
NCIP the authority to ensure that the ICCs/IPs have been informed of the agreement and that their consent thereto
has been obtained. Note that the certification applies to agreements over natural resources that do not necessarily
lie within the ancestral domains. For those that are found within the said domains, Sections 7(b) and 57 of the IPRA
apply.
V. THE IPRA IS A RECOGNITION OF OUR ACTIVE PARTICIPATION IN THE INDIGENOUS
INTERNATIONAL MOVEMENT.
The indigenous movement can be seen as the heir to a history of anti-imperialism stretching back to prehistoric
times. The movement received a massive impetus during the 1960's from two sources. First, the decolonization of
Asia and Africa brought into the limelight the possibility of peoples controlling their own destinies. Second, the right
of self-determination was enshrined in the UN Declaration on Human Rights. [238] The rise of the civil rights
movement and anti-racism brought to the attention of North American Indians, Aborigines in Australia, and Maori in
New Zealand the possibility of fighting for fundamental rights and freedoms.
In 1974 and 1975, international indigenous organizations were founded, [239] and during the 1980's, indigenous
affairs were on the international agenda. The people of the Philippine Cordillera were the first Asians to take part in
the international indigenous movement. It was the Cordillera People's Alliance that carried out successful
campaigns against the building of the Chico River Dam in 1981-82 and they have since become one of the best-
organized indigenous bodies in the world.[240]
Presently, there is a growing concern for indigenous rights in the international scene. This came as a result of
the increased publicity focused on the continuing disrespect for indigenous human rights and the destruction of the
indigenous peoples' environment, together with the national governments' inability to deal with the situation.
[241]
Indigenous rights came as a result of both human rights and environmental protection, and have become a part
of today's priorities for the international agenda. [242]
International institutions and bodies have realized the necessity of applying policies, programs and specific
rules concerning IPs in some nations. The World Bank, for example, first adopted a policy on IPs as a result of the
dismal experience of projects in Latin America. [243] The World Bank now seeks to apply its current policy on IPs to
some of its projects in Asia. This policy has provided an influential model for the projects of the Asian Development
Bank.[244]
The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and declares as a State policy
the promotion of their rights within the framework of national unity and development. [245] The IPRA amalgamates the
Philippine category of ICCs with the international category of IPs, [246] and is heavily influenced by both the
International Labor Organization (ILO) Convention 169 and the United Nations (UN) Draft Declaration on the Rights
of Indigenous Peoples.[247]
ILO Convention No. 169 is entitled the "Convention Concerning Indigenous and Tribal Peoples in Independent
Countries"[248] and was adopted on June 27, 1989. It is based on the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political
Rights, and many other international instruments on the prevention of discrimination. [249] ILO Convention No. 169
revised the "Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries" (ILO No. 107) passed on June 26, 1957. Developments in international law
made it appropriate to adopt new international standards on indigenous peoples "with a view to removing the
assimilationist orientation of the earlier standards," and recognizing the aspirations of these peoples to exercise
control over their own institutions, ways of life and economic development." [250]
CONCLUSION
The struggle of the Filipinos throughout colonial history had been plagued by ethnic and religious
differences. These differences were carried over and magnified by the Philippine government through the
imposition of a national legal order that is mostly foreign in origin or derivation. [251] Largely unpopulist, the present
legal system has resulted in the alienation of a large sector of society, specifically, the indigenous peoples. The
histories and cultures of the indigenes are relevant to the evolution of Philippine culture and are vital to the
understanding of contemporary problems.[252] It is through the IPRA that an attempt was made by our legislators to
understand Filipino society not in terms of myths and biases but through common experiences in the course of
history. The Philippines became a democracy a centennial ago and the decolonization process still continues. If the
evolution of the Filipino people into a democratic society is to truly proceed democratically, i.e., if the Filipinos as a
whole are to participate fully in the task of continuing democratization, [253] it is this Court's duty to acknowledge the
presence of indigenous and customary laws in the country and affirm their co-existence with the land laws in our
national legal system.
With the foregoing disquisitions, I vote to uphold the constitutionality of the Indigenous Peoples Rights Act of
1997.
Province of Rizal v. Executive Secretary
EN BANC
PROVINCE OF RIZAL, MUNICIPALITY OF G.R. No. 129546

SAN MATEO, PINTONG BOCAUE
MULTIPURPOSE COOPERATIVE,
CONCERNED CITIZENS OF RIZAL, INC., Present:
ROLANDO E. VILLACORTE, BERNARDO
HIDALGO, ANANIAS EBUENGA, VILMA T. DAVIDE, JR., C. J.,
MONTAJES, FEDERICO MUNAR, JR., PUNO,
ROLANDO BEAS, SR., ET AL., and PANGANIBAN,
KILOSBAYAN, INC., QUISUMBING,
P e t i t i o n e r s, YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
- versus - MARTINEZ,
CORONA,
CARPIO MORALES,
EXECUTIVE SECRETARY, SECRETARY OF CALLEJO, SR.,
ENVIRONMENT & NATURAL RESOURCES, AZCUNA,
LAGUNA LAKE DEVELOPMENT TINGA,
AUTHORITY, SECRETARY OF PUBLIC CHICO-NAZARIO, and
WORKS & HIGHWAYS, SECRETARY OF GARCIA, JJ.
BUDGET & MANAGEMENT, METRO
MANILA DEVELOPMENT AUTHORITY and
THE HONORABLE COURT OF APPEALS,
R e s p o n d e n t s.
Promulgated:
December 13, 2005

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CHICO-NAZARIO, J.:
The earth belongs in usufruct to the living.[1]

At the height of the garbage crisis plaguing Metro Manila and its environs, parts of the Marikina Watershed
Reservation were set aside by the Office of the President, through Proclamation No. 635 dated 28 August 1995, for
use as a sanitary landfill and similar waste disposal applications. In fact, this site, extending to more or less 18
hectares, had already been in operation since 19 February 1990 [2] for the solid wastes of Quezon City, Marikina, San
Juan, Mandaluyong, Pateros, Pasig, and Taguig.[3]
This is a petition filed by the Province of Rizal, the municipality of San Mateo, and various concerned citizens
for review oncertiorari of the Decision of the Court of Appeals in CA-G.R. SP No. 41330, denying, for lack of cause
of action, the petition forcertiorari, prohibition and mandamus with application for a temporary restraining order/writ
of preliminary injunction assailing the legality and constitutionality of Proclamation No. 635.
The facts are documented in painstaking detail.
On 17 November 1988, the respondent Secretaries of the Department of Public Works and Highways
(DPWH) and the Department of Environment and Natural Resources (DENR) and the Governor of the Metropolitan
Manila Commission (MMC) entered into a Memorandum of Agreement (MOA), [4] which provides in part:
1. The DENR agrees to immediately allow the utilization by the
Metropolitan Manila Commission of its land property located at Pintong Bocaue in San
Mateo, Rizal as a sanitary landfill site, subject to whatever restrictions that the government
impact assessment might require.
2. Upon signing of this Agreement, the DPWH shall commence the

construction/development of said dumpsite.
3. The MMC shall: a) take charge of the relocation of the families

within and around the site; b) oversee the development of the areas as a sanitary landfill; c)
coordinate/monitor the construction of infrastructure facilities by the DPWH in the said site;
and d) ensure that the necessary civil works are properly undertaken to safeguard against
any negative environmental impact in the area.
On 7, 8 and 10 February 1989, the Sangguniang Bayan of San Mateo wrote Gov. Elfren Cruz of the MMC,
Sec. Fiorello Estuar of the DPWH, the Presidential Task Force on Solid Waste Management, Executive Secretary
Catalino Macaraig, and Sec. Fulgencio Factoran, Jr., pointing out that it had recently passed a Resolution banning
the creation of dumpsites for Metro Manila garbage within its jurisdiction, asking that their side be heard, and that
the addressees suspend and temporarily hold in abeyance all and any part of your operations with respect to the
San Mateo Landfill Dumpsite. No action was taken on these letters.
It turns out that the land subject of the MOA of 17 November 1988 and owned by the DENR was part of the
Marikina Watershed Reservation Area. Thus, on 31 May 1989, forest officers of the Forest Engineering and
Infrastructure Unit of the Community Environment and Natural Resource Office, (CENRO) DENR-IV, Rizal Province,
submitted a Memorandum[5] on the On-going Dumping Site Operation of the MMC inside (the) Upper Portion of
Marikina Watershed Reservation, located at Barangay Pintong Bocaue, San Mateo, Rizal, and nearby localities.
Said Memorandum reads in part:
Observations:
3.1 The subject area is arable and agricultural in nature;

3.2 Soil type and its topography are favorable for agricultural and forestry
productions;
...
3.5 Said Dumping Site is observed to be confined within the said Watershed
Reservation, bearing in the northeastern part of Lungsod Silangan Townsite
Reservation. Such illegal Dumping Site operation inside (the) Watershed
Reservation is in violation of P.D. 705, otherwise known as the Revised
Forestry Code, as amended. . .
Recommendations:
5.1 The MMC Dumping Site Inside Marikina Watershed Reservation, particularly at Brgy.
Pintong Bocaue, San Mateo, Rizal and at Bo. Pinugay, Baras/Antipolo, Rizal which
are the present garbage zones must totally be stopped and discouraged without
any political intervention and delay in order to save our healthy ecosystems
found therein, to avoid much destruction, useless efforts and lost (sic) of
millions of public funds over the land in question; (Emphasis ours)
On 19 June 1989, the CENRO submitted another Investigation Report [6] to the Regional Executive Director
which states in part that:
1. About two (2) hectares had been excavated by bulldozers and garbage dumping operations
are going on.
2. The dumping site is without the concurrence of the Provincial Governor, Rizal Province and
without any permit from DENR who has functional jurisdiction over the Watershed
Reservation; and
3. About 1,192 families residing and cultivating areas covered by four (4) Barangays
surrounding the dumping site will adversely be affected by the dumping operations of MMC
including their sources of domestic water supply. x x x x
On 22 January 1990, the CENRO submitted still another Investigation Report [7] to the Regional Executive
Director which states that:
Findings show that the areas used as Dumping Site of the MMC are found to be within the
Marikina Watershed which are part of the Integrated Social Forestry Project (ISF) as per recorded
inventory of Forest Occupancy of this office.
It also appears that as per record, there was no permit issued to the MMC to utilize these
portions of land for dumping purposes.
It is further observed that the use of the areas as dumping site greatly affects the ecological
balance and environmental factors in this community.
On 19 February 1990, the DENR Environmental Management Bureau, through Undersecretary for
Environment and Research Celso R. Roque, granted the Metro Manila Authority (MMA [formerly MMC]) an
Environmental Compliance Certificate (ECC) for the operation of a two-and-a-half-hectare garbage dumpsite.
The ECC was sought and granted to comply with the requirement of Presidential Decree No. 1586
Establishing an Environmental Impact Statement System, Section 4 of which states in part that, No persons,
partnership or corporation shall undertake or operate any such declared environmentally critical project or area
without first securing an Environmental Compliance Certificate. Proclamation No. 2146, passed on 14 December
1981, designates all areas declared by law as national parks,watershed reserves, wildlife preserves, and
sanctuaries as Environmentally Critical Areas.
On 09 March 1990, respondent Laguna Lake Development Authority (LLDA), through its Acting General
Manager, sent a letter[8] to the MMA, which reads in part:
Through this letter we would like to convey our reservation on the choice of the sites for solid
waste disposal inside the watershed of Laguna Lake. As you may already know, the Metropolitan
Waterworks and Sewerage System (MWSS) has scheduled the abstraction of water from the
lake to serve the needs of about 1.2 million residents of Muntinlupa, Paranaque, Las Pinas
and Bacoor, Cavite by 1992. Accordingly, the Laguna Lake Development Authority (LLDA) is
accelerating its environmental management program to upgrade the water quality of the lake
in order to make it suitable as a source of domestic water supply the whole year round. The
said program regards dumpsites as incompatible within the watershed because of the heavy
pollution, including the risk of diseases, generated by such activities which would negate the
governments efforts to upgrade the water quality of the lake. Consequently, please consider
our objection to the proposed location of the dumpsites within the watershed. (Emphasis supplied
by petitioners)
On 31 July 1990, less than six months after the issuance of the ECC, Undersecretary Roque suspended the
ECC in a letter[9]addressed to the respondent Secretary of DPWH, stating in part that:
Upon site investigation conducted by Environmental Management Bureau staff on
development activities at the San Mateo Landfill Site, it was ascertained that ground slumping
and erosion have resulted from improper development of the site. We believe that this will
adversely affect the environmental quality in the area if the proper remedial measures are not
instituted in the design of the landfill site. This is therefore contradictory to statements made in the
Environmental Impact Statement (EIS) submitted that above occurrences will be properly mitigated.
In view of this, we are forced to suspend the Environmental Compliance Certificate (ECC)
issued until appropriate modified plans are submitted and approved by this Office for
implementation. (Emphasis ours)
On 21 June 1993, the Acting Mayor of San Mateo, Enrique Rodriguez, Jr., Barangay Captain Dominador
Vergara, and petitioner Rolando E. Villacorte, Chairman of the Pintong Bocaue Multipurpose Cooperative (PBMC)
wrote[10] then President Fidel V. Ramos expressing their objections to the continued operation of the MMA dumpsite
for causing unabated pollution and degradation of the Marikina Watershed Reservation.
On 14 July 1993, another Investigation Report[11] submitted by the Regional Technical Director to the DENR
Undersecretary for Environment and Research contained the following findings and recommendations:
Remarks and Findings:
....
5. Interview with Mr. Dayrit, whose lot is now being endangered because soil erosion
have (sic) caused severe siltation and sedimentation of the Dayrit Creek which water is greatly
polluted by the dumping of soil bulldozed to the creek;
6. Also interview with Mrs. Vilma Montajes, the multi-grade teacher of Pintong Bocaue
Primary School which is located only about 100 meters from the landfill site. She disclosed that bad
odor have (sic) greatly affected the pupils who are sometimes sick with respiratory illnesses. These
odors show that MMA have (sic) not instituted/sprayed any disinfectant chemicals to prevent air
pollution in the area. Besides large flies (Bangaw) are swarming all over the playground of the
school. The teacher also informed the undersigned that plastic debris are being blown whenever the
wind blows in their direction.
7. As per investigation report there are now 15 hectares being used as landfill
disposal sites by the MMA. The MMA is intending to expand its operation within the 50 hectares.
8. Lots occupied within 50 hectares are fully planted with fruit bearing trees like
Mangoes, Santol, Jackfruit, Kasoy, Guyabano, Kalamansi and Citrus which are now bearing fruits
and being harvested and marketed to nearby San Mateo Market and Masinag Market in Antipolo.
....
Recommendations:
1. As previously recommended, the undersigned also strongly recommend(s) that the

MMA be made to relocate the landfill site because the area is within the Marikina Watershed
Reservation and Lungsod Silangan. The leachate treatment plant ha(s) been eroded twice already
and contaminated the nearby creeks which is the source of potable water of the residents. The
contaminated water also flows to Wawa Dam and Boso-boso River which also flows to Laguna de
Bay.
2. The proposed Integrated Social Forestry Project be pushed through or be approved.

ISF project will not only uplift the socio-economic conditions of the participants but will enhance the
rehabilitation of the Watershed considering that fruit bearing trees are vigorously growing in the
area. Some timber producing species are also planted like Mahogany and Gmelina Arboiea. There
are also portions where dipterocarp residuals abound in the area.
3. The sanitary landfill should be relocated to some other area, in order to avoid any
conflict with the local government of San Mateo and the nearby affected residents who have been in
the area for almost 10-20 years.
On 16 November 1993, DENR Secretary Angel C. Alcala sent MMA Chairman Ismael A. Mathay, Jr. a
letter[12] stating that after a series of investigations by field officials of the DENR, the agency realized that the MOA
entered into on 17 November 1988 is a very costly error because the area agreed to be a garbage dumpsite is
inside the Marikina Watershed Reservation. He then strongly recommended that all facilities and infrastructure in
the garbage dumpsite in Pintong Bocaue be dismantled, and the garbage disposal operations be transferred to
another area outside the Marikina Watershed Reservation to protect the health and general welfare of the residents
of San Mateo in particular and the residents of Metro Manila in general.
On 06 June 1995, petitioner Villacorte, Chairman of the PBMC, wrote [13] President Ramos, through the
Executive Secretary, informing the President of the issues involved, that the dumpsite is located near three public
elementary schools, the closest of which is only fifty meters away, and that its location violates the municipal zoning
ordinance of San Mateo and, in truth, the Housing and Land Use Regulatory Board had denied the then MMA
chairmans application for a locational clearance on this ground.
On 21 August 1995, the Sangguniang Bayan of San Mateo issued a Resolution [14] expressing a strong
objection to the planned expansion of the landfill operation in Pintong Bocaue and requesting President Ramos to
disapprove the draft Presidential Proclamation segregating 71.6 Hectares from Marikina Watershed Reservation for
the landfill site in Pintong Bocaue, San Mateo, Rizal.
Despite the various objections and recommendations raised by the government agencies aforementioned,
the Office of the President, through Executive Secretary Ruben Torres, signed and issued Proclamation No. 635 on
28 August 1995, Excluding from the Marikina Watershed Reservation Certain Parcels of Land Embraced Therein
for Use as Sanitary Landfill Sites and Similar Waste Disposal Under the Administration of the Metropolitan Manila
Development Authority. The pertinent portions thereof state:
WHEREAS, to cope with the requirements of the growing population in Metro Manila and the
adjoining provinces and municipalities, certain developed and open portions of the Marikina
Watershed Reservation, upon the recommendation of the Secretary of the Department of
Environment and Natural Resources should now be excluded form the scope of the reservation;
WHEREAS, while the areas delineated as part of the Watershed Reservations are intended
primarily for use in projects and/or activities designed to contain and preserve the underground
water supply, other peripheral areas had been included within the scope of the reservation to provide
for such space as may be needed for the construction of the necessary structures, other related
facilities, as well as other priority projects of government as may be eventually determined;
WHEREAS, there is now an urgent need to provide for, and develop, the necessary facilities
for the disposal of the waste generated by the population of Metro Manila and the adjoining
provinces and municipalities, to ensure their sanitary and /or hygienic disposal;
WHEREAS, to cope with the requirements for the development of the waste disposal
facilities that may be used, portions of the peripheral areas of the Marikina Watershed Reservation,
after due consideration and study, have now been identified as suitable sites that may be used for
the purpose;
WHEREAS, the Secretary of the Department of Environment and Natural Resources has
recommended the exclusion of these areas that have been so identified from the Marikina
Watershed Reservation so that they may then be developed for the purpose;
NOW, THEREFORE, for and in consideration of the aforecited premises, I, Fidel V. Ramos,
President of the Philippines, by virtue of the powers vested in me by law, do hereby ordain:
Section 1. General That certain parcels of land, embraced by the Marikina Watershed
Reservation, were found needed for use in the solid waste disposal program of the government in
Metropolitan Manila, are hereby excluded from that which is held in reserve and are now made
available for use as sanitary landfill and such other related waste disposal applications.
Section 2. Purpose The areas being excluded from the Marikina Watershed Reservation
are hereby placed under the administration of the Metropolitan Manila Development Authority, for
development as Sanitary Landfill, and/or for use in the development of such other related waste
disposal facilities that may be used by the cities and municipalities of Metro Manila and the adjoining
province of Rizal and its municipalities.
Section 3. Technical Description Specifically, the areas being hereby excluded from the
Marikina Watershed Reservation consist of two (2) parcels, with an aggregate area of approximately
ONE MILLION SIXTY THOUSAND FIVE HUNDRED TWENTY NINE (1,060,529) square meters
more or less, as follows: x x x x
Section 4. Reservations The development, construction, use and/or operation of any

facility that may be established within the parcel of land herein excluded from the Marikina
Watershed Reservation shall be governed by existing laws, rules and regulations pertaining to
environmental control and management. When no longer needed for sanitary landfill purposes or
the related waste disposal activities, the parcels of land subject of this proclamation shall revert back
as part of the Marikina Watershed Reservation, unless otherwise authorized.
On 06 September 1995, Director Wilfrido S. Pollisco of the Protected Areas and Wildlife Bureau wrote the
DENR Secretary to express the bureaus stand against the dumpsite at Pintong Bocaue, and that it is our view . . .
that the mere presence of a garbage dumpsite inside a watershed reservation is definitely not compatible with the
very purpose and objectives for which the reservation was established.
On 24 November 1995, the petitioners Municipality of San Mateo and the residents of Pintong Bocaue,
represented by former Senator Jovito Salonga, sent a letter to President Ramos requesting him to reconsider
Proclamation No. 635. Receiving no reply, they sent another letter on 02 January 1996 reiterating their previous
request.
On 04 March 1996, then chairman of the Metro Manila Development Authority (MMDA [formerly MMA])
Prospero I. Oreta addressed a letter to Senator Salonga, stating in part that:
.
2. Considering the circumstances under which we are pursuing the project, we are certain you
will agree that, unless we are prepared with a better alternative, the project simply has to be
pursued in the best interest of the greater majority of the population, particularly their health
and welfare.
2.1 The San Mateo Sanitary Landfill services, at least, 38% of the waste disposal site
requirements of Metro Manila where an estimated 9 million population reside.
2.2 Metro Manila is presently estimated to be generating, at least, 15,700 cubic meters of
household or municipal waste, a 1.57 hectare of land area will be filled in a months time
with a pile 31 meters high of garbage, or in a year, the accumulated volume will require
18.2 hectares.
....
4. The sanitary landfill projects are now on their fifth year of implementation. The amount of effort
and money already invested in the project by the government cannot easily be disregarded,
much more set aside in favor of the few settlers/squatters who chose to ignore the earlier
notice given to them that the area would be used precisely for the development of waste
disposal sites, and are now attempting to arouse opposition to the project.
4.2 There is no place within the jurisdiction of Metro Manila, with an area big enough to
accommodate at least 3 to 5 years of waste disposal requirements. x x x x
4.21 The present site at San Mateo was selected because, at the time consideration was being
made, and up to the present, it is found to have the attributes that positively respond to the
criteria established:
4.21.1 The site was a government property and would not require any outlay for it to be
acquired.
4.21.2 It is far from any sizeable community/settlements that could be affected by the
development that would be introduced and yet, was within economic hauling distance
from the areas they are designed to serve.
4.21.21 At the time it was originally decided to locate the landfills at the present
site, there were not more that fifteen (15) settlers in the area and they had
hardly established themselves. The community settlements were located
far from the site.
4.21.22 The area was hardly accessible, especially to any public transport. The
area was being served by a public utility jeep that usually made only two (2)
trips daily. During the rainy season, it could only be reached by equipping
the vehicle with tire chains to traverse the slippery muddy trail roads.
4.21.3 There was, at least, seventy-three (73) hectares available at the site.
4.3 While the site was within the Marikina Watershed Reservation under the administration of the
DENR, the site was located at the lower periphery of the buffer zone; was evaluated to be least
likely to affect the underground water supply; and could, in fact, be excluded from the reservation.
4.31 It was determined to be far from the main water containment area for it to pose any
immediate danger of contaminating the underground water, in case of a failure in any of the
mitigating measures that would be installed.
4.32 It was likewise too far from the nearest body of water, the Laguna Lake, and the distance,
plus the increasing accumulation of water from other tributaries toward the lake, would serve
to dilute and mitigate any contamination it may emit, in case one happened.
4.33 To resolve the recurring issue regarding its being located within the Marikina
Watershed Reservation, the site had been recommended by the DENR, and approved by the
President, to already be excluded from the Marikina Watershed reservation and placed
under the administration of MMDA, since the site was deemed to form part of the land
resource reserve then commonly referred to as buffer zone.
5. Contrary to the impression that you had been given, relocating the site at this point and time would
not be easy, if not impracticable, because aside from the investments that had been made in locating
the present site, further investments have been incurred in:
5.1 The conduct of the technical studies for the development being implemented. Through a grant-
in-aid from the World Bank, US$600,000 was initially spent for the conduct of the necessary
studies on the area and the design of the landfill. This was augmented by, at least, another P1.5
million from the government for the studies to be completed, or a total cost at the time (1990) of
approximately P20 million.
5.2. Additionally, the government has spent approximately P33 million in improving on the roadway
to make the site accessible from the main road/highway.
5.3 To achieve the necessary economies in the development of the site, the utilities had been
planned so that their use could be maximized. These include the access roads, the drainage
system, the leacheate collection system, the gas collection system, and the waste water treatment
system. Their construction are designed so that instead of having to construct independent units
for each area, the use of existing facilities can be maximized through a system of interconnection.
On the average, the government is spending P14.8 million to develop a hectare of sanitary landfill
area.
6. Despite the preparations and the investments that are now being made on the project, it is estimated
that the total available area, at an accelerated rate of disposal, assuming that all open dump sites
were to be closed, will only last for 39 months.
6.1 We are still hard pressed to achieve advanced development on the sites to assure against any
possible crisis in garbage from again being experienced in Metro Manila, aside from having to look
for the additional sites that may be used after the capacities shall have been exhausted.
6.2 Faced with the prospects of having the 15,700 cubic meters of garbage generated daily strewn all
over Metro Manila, we are certain you will agree that it would be futile to even as much as consider
a suspension of the waste disposal operations at the sanitary landfills.
On 22 July 1996, the petitioners filed before the Court of Appeals a civil action for certiorari, prohibition
and mandamus with application for a temporary restraining order/writ of preliminary injunction. The hearing on the
prayer for preliminary injunction was held on 14 August 1996.
On 13 June 1997, the court a quo rendered a Decision,[15] the dispositive part of which reads:
WHEREFORE, the petition for certiorari, prohibition and mandamus with application for a
temporary restraining order/writ of preliminary injunction for lack of cause of action, is hereby
DENIED.[16]
Hence, this petition for review on certiorari of the above decision on the following grounds:
THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION IN DELIBERATELY

IGNORING THE SIGNIFICANT FACT THAT PRESIDENTIAL PROCLAMATION NO. 635 WAS
BASED ON A BRAZEN FORGERY IT WAS SUPPOSEDLY ISSUED, AS STATED IN THE
PROCLAMATION ITSELF AND REPEATEDLY ASSERTED BY RESPONDENTS IN THEIR
COMMENT, ON THE BASIS OF THE ALLEGED RECOMMENDATION OF THE DENR
SECRETARY DATED JUNE 26, 1995 BUT WHICH ASSERTION WAS DENOUNCED BY THE
THEN SECRETARY ANGEL C. ALCALA HIMSELF IN A SWORN STATEMENT DATED
SEPTEMBER 18, 1996 AND AGAIN DURING THE SPECIAL HEARING OF THE CASE IN THE
COURT OF APPEALS ON NOVEMBER 13, 1996 AS A FORGERY SINCE HIS SIGNATURE ON
THE ALLEGED RECOMMENDATION HAD BEEN FALSIFIED, AS NOW ADMITTED BY
RESPONDENTS THEMSELVES IN THEIR COMMENT FILED WITH THE COURT OF APPEALS,
THROUGH THE OFFICE OF THE SOLICITOR GENERAL.
II
THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION IN COMPLETELY IGNORING
THE SIGNIFICANT FACT THAT THE RESPONDENTS ARE OPERATING THE LANDFILL BASED
ON A SPURIOUS ENVIRONMENTAL COMPLIANCE CERTIFICATE.
III
THE COURT OF APPEALS ERRED IN RULING THAT THE RESPONDENTS DID NOT VIOLATE
R.A. 7586 WHEN THEY ISSUED AND IMPLEMENTED PROCLAMATION NO. 635 CONSIDERING
THAT THE WITHDRAWAL OR DISESTABLISHMENT OF A PROTECTED AREA OR THE
MODIFICATION OF THE MARIKINA WATERSHED CAN ONLY BE DONE BY AN ACT OF
CONGRESS.
IV
THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION WHEN IT DELIBERATELY
AND WILLFULLY BRUSHED ASIDE THE UNANIMOUS FINDINGS AND ADVERSE
RECOMMENDATIONS OF RESPONSIBLE GOVERNMENT AGENCIES AND NON-PARTISAN
OFFICIALS CONCERNED WITH ENVIRONMENTAL PROTECTION IN FAVOR OF THE SELF-
SERVING, GRATUITOUS ASSERTIONS FOUND IN THE UNSOLICITED, PARTISAN LETTER OF
FORMER MALABON MAYOR, NOW CHAIRMAN PROSPERO ORETA OF THE MMDA WHO IS AN
INTERESTED PARTY IN THIS CASE.
THE COURT OF APPEALS ERRED WHEN IT READILY SWALLOWED RESPONDENTS

ASSERTION THAT THE SAN MATEO DUMPSITE IS LOCATED IN THE BUFFER ZONE OF THE
RESERVATION AND IS THEREFORE OUTSIDE OF ITS BOUNDARIES, AND EVEN DECLARED
IN ITS DECISION THAT IT TOOK SERIOUS NOTE OF THIS PARTICULAR ARGUMENT.
VI
THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION WHEN IT ENCROACHED
ON THE FUNCTION OF CONGRESS BY EXPRESSING ITS UNJUSTIFIED FEAR OF MINI-
SMOKEY MOUNTAINS PROLIFERATING IN METRO MANILA AND JUSTIFYING ITS DECISION IN
FAVOR OF AN INTEGRATED SYSTEM OF SOLID WASTE MANAGEMENT LIKE THE SAN
MATEO LANDFILL.
On 05 January 1998, while the appeal was pending, the petitioners filed a Motion for Temporary Restraining
Order,[17]pointing out that the effects of the El Nio phenomenon would be aggravated by the relentless destruction
of the Marikina Watershed Reservation. They noted that respondent MMDA had, in the meantime, continued to
expand the area of the dumpsite inside the Marikina Watershed Reservation, cutting down thousands of mature fruit
trees and forest trees, and leveling hills and mountains to clear the dumping area. Garbage disposal operations
were also being conducted on a 24-hour basis, with hundreds of metric tons of wastes being dumped daily, including
toxic and infectious hospital wastes, intensifying the air, ground and water pollution. [18]
The petitioners reiterated their prayer that respondent MMDA be temporarily enjoined from further dumping
waste into the site and from encroaching into the area beyond its existing perimeter fence so as not to render the
case moot and academic.
On 28 January 1999, the petitioners filed a Motion for Early Resolution, [19] calling attention to the continued
expansion of the dumpsite by the MMDA that caused the people of Antipolo to stage a rally and barricade the
Marcos Highway to stop the dump trucks from reaching the site for five successive days from 16 January 1999. On
the second day of the barricade, all the municipal mayors of the province of Rizal openly declared their full support
for the rally, and notified the MMDA that they would oppose any further attempt to dump garbage in their province. [20]
As a result, MMDA officials, headed by then Chairman Jejomar Binay, agreed to abandon the dumpsite after
six months. Thus, the municipal mayors of Rizal, particularly the mayors of Antipolo and San Mateo, agreed to the
use of the dumpsite until that period, which would end on 20 July 1999. [21]
On 13 July 1999, the petitioners filed an Urgent Second Motion for Early Resolution [22] in anticipation of
violence between the conflicting parties as the date of the scheduled closure of the dumpsite neared.
On 19 July 1999, then President Joseph E. Estrada, taking cognizance of the gravity of the problems in the
affected areas and the likelihood that violence would erupt among the parties involved, issued a Memorandum
ordering the closure of the dumpsite on 31 December 2000. [23] Accordingly, on 20 July 1999, the Presidential
Committee on Flagship Programs and Projects and the MMDA entered into a MOA with the Provincial Government
of Rizal, the Municipality of San Mateo, and the City of Antipolo, wherein the latter agreed to further extend the use
of the dumpsite until its permanent closure on 31 December 2000.[24]
On 11 January 2001, President Estrada directed Department of Interior and Local Government Secretary
Alfredo Lim and MMDA Chairman Binay to reopen the San Mateo dumpsite in view of the emergency situation of
uncollected garbage in Metro Manila, resulting in a critical and imminent health and sanitation epidemic. [25]
Claiming the above events constituted a clear and present danger of violence erupting in the affected
areas, the petitioners filed an Urgent Petition for Restraining Order [26] on 19 January 2001.
On 24 January 2001, this Court issued the Temporary Restraining Order prayed for, effective immediately
and until further orders.[27]
Meanwhile, on 26 January 2001, Republic Act No. 9003, otherwise known as The Ecological Solid Waste
Management Act of 2000, was signed into law by President Estrada.
Thus, the petitioners raised only two issues in their Memorandum [28] of 08 February 2005: 1) whether or not
respondent MMDA agreed to the permanent closure of the San Mateo Landfill as of December 2000, and 2)
whether or not the permanent closure of the San Mateo landfill is mandated by Rep. Act No. 9003.
We hold that the San Mateo Landfill will remain permanently closed.
Although the petitioners may be deemed to have waived or abandoned the issues raised in their previous
pleadings but not included in the memorandum, [29] certain events we shall relate below have inclined us to address
some of the more pertinent issues raised in the petition for the guidance of the herein respondents, and pursuant to
our symbolic function to educate the bench and bar.[30]
The law and the facts indicate that a mere MOA does not guarantee the dumpsites permanent closure.
The rally and barricade staged by the people of Antipolo on 28 January 1999, with the full support of all the
mayors of Rizal Province caused the MMDA to agree that it would abandon the dumpsite after six months. In return,
the municipal mayors allowed the use of the dumpsite until 20 July 1999.
On 20 July 1999, with much fanfare and rhetoric, the Presidential Committee on Flagship Programs and
Projects and the MMDA entered into a MOA with the Provincial Government of Rizal, the Municipality of San Mateo,
and the City of Antipolo, whereby the latter agreed to an extension for the use of the dumpsite until 31 December
2000, at which time it would be permanently closed.
Despite this agreement, President Estrada directed Department of Interior and Local Government Secretary
Alfredo Lim and MMDA Chairman Binay to reopen the San Mateo dumpsite on 11 January 2001, in view of the
emergency situation of uncollected garbage in Metro Manila, resulting in a critical and imminent health and
sanitation epidemic; our issuance of a TRO on 24 January 2001 prevented the dumpsites reopening.
Were it not for the TRO, then President Estradas instructions would have been lawfully carried out, for as
we observed inOposa v. Factoran, the freedom of contract is not absolute. Thus:
.. In Abe vs. Foster Wheeler Corp., 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 non-impairment 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, quoted in
Philippine American Life Insurance Co. vs. Auditor General, to wit: "'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. (Citations
omitted, emphasis supplied)
We thus feel there is also the added need to reassure the residents of the Province of Rizal that this is
indeed a final resolution of this controversy, for a brief review of the records of this case indicates two self-evident
facts. First, the San Mateo site has adversely affected its environs, and second, sources of water should
always be protected.
As to the first point, the adverse effects of the site were reported as early as 19 June 1989, when the
Investigation Report of the Community Environment and Natural Resources Officer of DENR-IV-1 stated that the
sources of domestic water supply of over one thousand families would be adversely affected by the dumping
operations.[31] The succeeding report included the observation that the use of the areas as dumping site greatly
affected the ecological balance and environmental factors of the community.[32]Respondent LLDA in fact informed
the MMA that the heavy pollution and risk of disease generated by dumpsites rendered the location of a dumpsite
within the Marikina Watershed Reservation incompatible with its program of upgrading the water quality of the
Laguna Lake. [33]
The DENR suspended the sites ECC after investigations revealed ground slumping and erosion had
resulted from improper development of the site. [34] Another Investigation Report[35] submitted by the Regional
Technical Director to the DENR reported respiratory illnesses among pupils of a primary school located
approximately 100 meters from the site, as well as the constant presence of large flies and windblown debris all
over the schools playground. It further reiterated reports that the leachate treatment plant had been eroded twice
already, contaminating the nearby creeks that were sources of potable water for the residents. The contaminated
water was also found to flow to the Wawa Dam and Boso-boso River, which in turn empties into Laguna de
Bay.
This brings us to the second self-evident point. Water is life, and must be saved at all costs. In Collado v.
Court of Appeals,[36] we had occasion to reaffirm our previous discussion in Sta. Rosa Realty Development
Corporation v. Court of Appeals,[37] on the primordial importance of watershed areas, thus: The most important
product of a watershed is water, which is one of the most important human necessities. The protection of
watersheds ensures an adequate supply of water for future generations and the control of flashfloods that not only
damage property but also cause loss of lives. Protection of watersheds is an intergenerational responsibility that
needs to be answered now.[38]
Three short months before Proclamation No. 635 was passed to avert the garbage crisis, Congress had
enacted the National Water Crisis Act [39] to adopt urgent and effective measures to address the nationwide water
crisis which adversely affects the health and well-being of the population, food production, and industrialization
process. One of the issues the law sought to address was the protection and conservation of watersheds.[40]
In other words, while respondents were blandly declaring that the reason for the creation of the Marikina
Watershed Reservation, i.e., to protect Marikina River as the source of water supply of the City of Manila, no longer
exists, the rest of the country was gripped by a shortage of potable water so serious, it necessitated its own
legislation.
Respondents actions in the face of such grave environmental consequences defy all logic. The petitioners
rightly noted that instead of providing solutions, they have, with unmitigated callousness, worsened the problem. It
is this readiness to wreak irrevocable damage on our natural heritage in pursuit of what is expedient that has
compelled us to rule at length on this issue. We ignore the unrelenting depletion of our natural heritage at our peril.
I.
THE REORGANIZATION ACT OF THE DENR DEFINES AND
LIMITS ITS POWERS OVER THE COUNTRYS NATURAL RESOURCES
The respondents next point out that the Marikina Watershed Reservation, and thus the San Mateo Site, is
located in the public domain. They allege that as such, neither the Province of Rizal nor the municipality of San
Mateo has the power to control or regulate its use since properties of this nature belong to the national, and not to
the local governments.
It is ironic that the respondents should pursue this line of reasoning.
In Cruz v. Secretary of Environment and Natural Resources,[41] we had occasion to observe that (o)ne of the
fixed and dominating objectives of the 1935 Constitutional Convention was the nationalization and conservation of
the natural resources of the country. There was an overwhelming sentiment in the convention in favor of the
principle of state ownership of natural resources and the adoption of the Regalian doctrine. State ownership of
natural resources was seen as a necessary starting point to secure recognition of the states power to control their
disposition, exploitation, development, or utilization. [42]
The Regalian doctrine was embodied in the 1935 Constitution, in Section 1 of Article XIII on Conservation
and Utilization of Natural Resources. This was reiterated in the 1973 Constitution under Article XIV on the National
Economy and the Patrimony of the Nation, and reaffirmed in the 1987 Constitution in Section 2 of Article XII on
National Economy and Patrimony, to wit:
Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as may be provided by
law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant. [43]
Clearly, the state is, and always has been, zealous in preserving as much of our natural and national
heritage as it can, enshrining as it did the obligation to preserve and protect the same within the text of our
fundamental law.
It was with this objective in mind that the respondent DENR was mandated by then President Corazon C.
Aquino, under Section 4 of Executive Order No. 192, [44] otherwise known as The Reorganization Act of the
Department of Environment and Natural Resources, to be the primary government agency responsible for
the conservation, management, development and proper use of the countrys environment and natural
resources, specifically forest and grazing lands, mineral resources, including those in reservation and watershed
areas, and lands of the public domain. It is also responsible for 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.
We expounded on this matter in the landmark case of Oposa v. Factoran,[45] where we held that the right to
a balanced and healthful ecology is a fundamental legal right that carries with it the correlative duty to refrain from
impairing the environment. This right implies, among other things, the judicious management and conservation of
the countrys resources, which duty is reposed in the DENR under the aforequoted Section 4 of Executive Order No.
192. Moreover:
Section 3 (of E. O. No. 192) 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 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. (Emphasis ours)
This policy declaration is substantially re-stated in Title XIV, Book IV of the Administrative
Code of 1987, 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.[46] (Emphasis ours.)
In sum, the Administrative Code of 1987 and Executive Order No. 192 entrust the DENR with
the guardianship andsafekeeping of the Marikina Watershed Reservation and our other natural treasures. However,
although the DENR, an agency of the government, owns the Marikina Reserve and has jurisdiction over the
same, this power is not absolute, but is defined by the declared policies of the state, and is subject to the law and
higher authority. Section 2, Title XIV, Book IV of the Administrative Code of 1987, while specifically referring to the
mandate of the DENR, makes particular reference to the agencys being subject to law and higher authority, thus:
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.
With great power comes great responsibility. It is the height of irony that the public respondents have
vigorously arrogated to themselves the power to control the San Mateo site, but have deftly ignored their
corresponding responsibility as guardians and protectors of this tormented piece of land.
II.
THE LOCAL GOVERNMENT CODE GIVES TO LOCAL GOVERNMENT UNITS ALL THE NECESSARY POWERS
TO PROMOTE THE GENERAL WELFARE OF THEIR INHABITANTS
The circumstances under which Proclamation No. 635 was passed also violates Rep. Act No. 7160, or the
Local Government Code.
Contrary to the averment of the respondents, Proclamation No. 635, which was passed on 28 August 1995,
is subject to the provisions of the Local Government Code, which was approved four years earlier, on 10 October
1991.
Section 2(c) of the said law declares that it is the policy of the state to require all national agencies and
offices to conduct periodic consultations with appropriate local government units, non-governmental and people's
organizations, and other concerned sectors of the community before any project or program is implemented in their
respective jurisdictions. Likewise, Section 27 requires prior consultations before a program shall be implemented
by government authorities and the prior approval of thesanggunian is obtained.
During the oral arguments at the hearing for the temporary restraining order, Director Uranza of the MMDA
Solid Waste Management Task Force declared before the Court of Appeals that they had conducted the required
consultations. However, he added that (t)his is the problem, sir, the officials we may have been talking with at the
time this was established may no longer be incumbent and this is our difficulty now. That is what we are trying to do
now, a continuing dialogue.[47]
The ambivalent reply of Director Uranza was brought to the fore when, at the height of the protest rally and
barricade along Marcos Highway to stop dump trucks from reaching the site, all the municipal mayors of the
province of Rizal openly declared their full support for the rally and notified the MMDA that they would oppose any
further attempt to dump garbage in their province. [48]
The municipal mayors acted within the scope of their powers, and were in fact fulfilling their mandate, when
they did this. Section 16 allows every local government unit to exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general welfare, which involve, among other
things, promot(ing) health and safety, enhance(ing) the right of the people to a balanced ecology, and
preserv(ing) the comfort and convenience of their inhabitants.
In Lina , Jr. v. Pao,[49] we held that Section 2 (c), requiring consultations with the appropriate local
government units, should apply to national government projects affecting the environmental or ecological balance of
the particular community implementing the project. Rejecting the petitioners contention that Sections 2(c) and 27 of
the Local Government Code applied mandatorily in the setting up of lotto outlets around the country, we held that:
From a careful reading of said provisions, we find that these apply only to national programs
and/or projects which are to be implemented in a particular local community. Lotto is neither a
program nor a project of the national government, but of a charitable institution, the PCSO. Though
sanctioned by the national government, it is far fetched to say that lotto falls within the contemplation
of Sections 2 (c) and 27 of the Local Government Code.
Section 27 of the Code should be read in conjunction with Section 26 thereof. Section 26
reads:
SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological

Balance. It shall be the duty of every national agency or government-owned or controlled
corporation authorizing or involved in the planning and implementation of any project or
program that may cause pollution, climatic change, depletion of non-renewable resources,
loss of crop land, range-land, or forest cover, and extinction of animal or plant species, to
consult with the local government units, nongovernmental organizations, and other sectors
concerned and explain the goals and objectives of the project or program, its impact upon
the people and the community in terms of environmental or ecological balance, and the
measures that will be undertaken to prevent or minimize the adverse effects thereof.
Thus, the projects and programs mentioned in Section 27 should be interpreted to
mean projects and programs whose effects are among those enumerated in Section 26 and
27, to wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may
cause the depletion of non-renewable resources; (4) may result in loss of crop land, range-
land, or forest cover; (5) may eradicate certain animal or plant species from the face of the
planet; and (6) other projects or programs that may call for the eviction of a particular group
of people residing in the locality where these will be implemented. Obviously, none of these
effects will be produced by the introduction of lotto in the province of Laguna. (emphasis supplied)
We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas,[50] where we held that
there was no statutory requirement for the sangguniang bayan of Puerto Galera to approve the construction of a
mooring facility, as Sections 26 and 27 are inapplicable to projects which are not environmentally critical.
Moreover, Section 447, which enumerates the powers, duties and functions of the municipality, grants
the sangguniang bayan the power to, among other things, enact ordinances, approve resolutions and appropriate
funds for the general welfare of the municipality and its inhabitants pursuant to Section 16 of th(e) Code. These
include:
(1) Approving ordinances and passing resolutions to protect the environment and impose
appropriate penalties for acts which endanger the environment, such as dynamite
fishing and other forms of destructive fishing, illegal logging and smuggling of logs,
smuggling of natural resources products and of endangered species of flora and fauna, slash
and burn farming, and such other activities which result in pollution, acceleration of
eutrophication of rivers and lakes, or of ecological imbalance; [Section 447 (1)(vi)]
(2) Prescribing reasonable limits and restraints on the use of property within the
jurisdiction of the municipality,adopting a comprehensive land use plan for the
municipality, reclassifying land within the jurisdiction of the city, subject to the pertinent
provisions of this Code, enacting integrated zoning ordinances in consonance with the
approved comprehensive land use plan, subject to existing laws, rules and regulations;
establishing fire limits or zones, particularly in populous centers; and regulating the
construction, repair or modification of buildings within said fire limits or zones in accordance
with the provisions of this Code; [Section 447 (2)(vi-ix)]
(3) Approving ordinances which shall ensure the efficient and effective delivery of the basic
services and facilities as provided for under Section 17 of this Code, and in addition to said
services and facilities, providing for the establishment, maintenance, protection, and
conservation of communal forests and watersheds, tree parks, greenbelts,
mangroves, and other similar forest development projects .and, subject to existing
laws, establishing and providing for the maintenance, repair and operation of an efficient
waterworks system to supply water for the inhabitants and purifying the source of the
water supply; regulating the construction, maintenance, repair and use of hydrants, pumps,
cisterns and reservoirs; protecting the purity and quantity of the water supply of the
municipality and, for this purpose, extending the coverage of appropriate ordinances
over all territory within the drainage area of said water supply and within one hundred
(100) meters of the reservoir, conduit, canal, aqueduct, pumping station, or watershed
used in connection with the water service; and regulating the consumption, use or
wastage of water. [Section 447 (5)(i) & (vii)]
Under the Local Government Code, therefore, two requisites must be met before a national project that
affects the environmental and ecological balance of local communities can be implemented: prior consultation with
the affected local communities, and prior approval of the project by the appropriate sanggunian. Absent either of
these mandatory requirements, the projects implementation is illegal.
III.
WASTE DISPOSAL IS REGULATED BY THE ECOLOGICAL

SOLID WASTE MANAGEMENT ACT OF 2000
The respondents would have us overlook all the abovecited laws because the San Mateo site is a very
expensive - and necessary - fait accompli. The respondents cite the millions of pesos and hundreds of thousands of
dollars the government has already expended in its development and construction, and the lack of any viable
alternative sites.
The Court of Appeals agreed, thus:

During the hearing on the injunction, questions were also asked. What will happen if the
San Mateo Sanitary Landfill is closed? Where will the daily collections of garbage be disposed of
and dumped? Atty. Mendoza, one of the lawyers of the petitioners, answered that each
city/municipality must take care of its own. Reflecting on that answer, we are troubled: will not the
proliferation of separate open dumpsites be a more serious health hazard (which ha(s) to be
addressed) to the residents of the community? What with the galloping population growth and the
constricting available land area in Metro Manila? There could be a mini-Smokey Mountain in each
of the ten citiescomprising Metro Manila, placing in danger the health and safety of more people.
Damage to the environment could be aggravated by the increase in number of open dumpsites. An
integrated system of solid waste management, like the San Mateo Sanitary Landfill, appears
advisable to a populous metropolis like the Greater Metro Manila Area absent access to better
technology.[51]
We acknowledge that these are valid concerns. Nevertheless, the lower court should have been mindful of
the legal truism that it is the legislature, by its very nature, which is the primary judge of the necessity, adequacy,
wisdom, reasonableness and expediency of any law.[52]
Moreover, these concerns are addressed by Rep. Act No. 9003. Approved on 26 January 2001, The
Ecological Solid Waste Management Act of 2000 was enacted pursuant to the declared policy of the state to adopt
a systematic, comprehensive and ecological solid waste management system which shall ensure the protection of
public health and environment, and utilize environmentally sound methods that maximize the utilization of valuable
resources and encourage resource conservation and recovery. [53] It requires the adherence to a Local Government
Solid Waste Management Plan with regard to the collection and transfer, processing, source reduction, recycling,
composting and final disposal of solid wastes, the handling and disposal of special wastes, education and public
information, and the funding of solid waste management projects.
The said law mandates the formulation of a National Solid Waste Management Framework, which should
include, among other things, the method and procedure for the phaseout and the eventual closure within eighteen
months from effectivity of the Act in case of existing open dumps and/or sanitary landfills located within an
aquifer, groundwater reservoir or watershed area.[54] Any landfills subsequently developed must comply with the
minimum requirements laid down in Section 40, specifically that the site selected must be consistent with the
overall land use plan of the local government unit, and that the site must be located in an area where the
landfills operation will not detrimentally affect environmentally sensitive resources such as aquifers,
groundwater reservoirs or watershed areas.[55]
This writes finis to any remaining aspirations respondents may have of reopening the San Mateo Site.
Having declared Proclamation No. 635 illegal, we see no compelling need to tackle the remaining issues raised in
the petition and the parties respective memoranda.
A final word. Laws pertaining to the protection of the environment were not drafted in a vacuum. Congress
passed these laws fully aware of the perilous state of both our economic and natural wealth. It was precisely to
minimize the adverse impact humanitys actions on all aspects of the natural world, at the same time maintaining
and ensuring an environment under which man and nature can thrive in productive and enjoyable harmony with
each other, that these legal safeguards were put in place. They should thus not be so lightly cast aside in the face
of what is easy and expedient.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 41330,
dated 13 June 1997, is REVERSED and SET ASIDE. The temporary restraining order issued by the Court on 24
January 2001 is hereby made permanent.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice
Magallona v. Ermita
EN BANC
PROF. MERLIN M. MAGALLONA, G.R No. 187167
AKBAYAN PARTY-LIST REP. RISA
HONTIVEROS, PROF. HARRY C. Present:
ROQUE, JR., AND UNIVERSITY OF
THE PHILIPPINES COLLEGE OF CORONA, C.J.,
LAW STUDENTS, ALITHEA CARPIO,
BARBARA ACAS, VOLTAIRE VELASCO, JR.,
ALFERES, CZARINA MAY LEONARDO-DE CASTRO,
ALTEZ, FRANCIS ALVIN ASILO, BRION,
SHERYL BALOT, RUBY AMOR PERALTA,
BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,
ROMINA BERNARDO, VALERIE DEL CASTILLO,
PAGASA BUENAVENTURA, EDAN ABAD,
MARRI CAETE, VANN ALLEN VILLARAMA, JR.,
DELA CRUZ, RENE DELORINO, PEREZ,

PAULYN MAY DUMAN, SHARON MENDOZA, and
ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.
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,
- versus -
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 Promulgated:
TO THE UNITED NATIONS,
Respondents. July 16, 2011
x -----------------------------------------------------------------------------------------x
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.
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 Philippines 7 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.
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.
On the Threshold Issues
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition
alleges neither infringement of legislative prerogative 15 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 Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
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 Not Unconstitutional

RA 9522 is a Statutory Tool
to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
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. 23UNCLOS 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 treaty-based 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 Philippine 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.
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 Extent of maritime

RA 3046, as amended, area using RA 9522,
taking into account the Treaty taking into account
of Paris delimitation (in UNCLOS III (in
square nautical miles) square nautical miles)
Internal or
archipelagic
waters 166,858 171,435
Territorial 274,136 32,106

Sea
Exclusive
Economic
Zone 382,669
TOTAL 440,994 586,210
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 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 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. 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
Statutory Claim Over Sabah under
RA 5446 Retained
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)
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)
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 passage45 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. Factoran50treated 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 7 52), are not
violated by RA 9522.
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 non-living 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.
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 III 55 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
MMDA v. JANCOM
THIRD DIVISION
[G.R. No. 147465. January 30, 2002]
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner, vs. JANCOM ENVIRONMENTAL

CORPORATION and JANCOM INTERNATIONAL DEVELOPMENT PROJECTS PTY. LIMITED OF
AUSTRALIA, respondents.
DECISION
MELO, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Civil Procedure filed by
petitioner Metropolitan Manila Development Authority (MMDA), seeking to reverse and set aside the November 13,
2000 decision of the Court of Appeals declaring valid and perfected the waste management contract entered into by
the Republic of the Philippines, represented by the Secretary of National Resources and the Executive Committee
to oversee the build-operate-transfer implementation of solid waste management projects, and JANCOM
Environmental Corporation.
The pertinent facts are as follows:

In 1994, then President Fidel V. Ramos issued Presidential Memorandum Order No. 202 creating the Executive
Committee (EXECOM) to oversee the BOT implementation of solid waste management projects, headed by the
Chairman of the MMDA and the Cabinet Officer for Regional Development-National Capital Region (CORD-NCR).
The EXECOM was to oversee and develop waste-to-energy projects for the waste disposal sites in San Mateo,
Rizal and Carmona, Cavite under the build-operate-transfer (BOT) scheme. The terms of reference for the waste-to-
energy projects provided that its proponents should have the capability to establish municipal solid waste thermal
plants using incineration technology. This type of technology was selected because of its alleged advantages of
greatly reduced waste volume, prolongation of the service life of the disposal site, and generation of electricity.
While eleven (11) proponents submitted their pre-qualification documents, most failed to comply with the
requirements under Section 5.4 of the Implementing Rules and Regulations (IRR) of Republic Act No. 6957,
otherwise known as the Build-Operate-Transfer Law. On July 21, 1995, the Pre-qualification, Bids and Awards
Committee (PBAC) recommended the pre-qualification of three proponents, namely: i) JANCOM International Pty.
Ltd.; ii) First Philippine International W-E Managers; and iii) PACTECH Development Corporation. On July 26,
1995, the EXECOM approved the recommendation of the PBAC. On July 27, 1995, MMDA forwarded to the
Investment Coordinating Committee (ICC) Secretariat the pre-feasibility study on the privatization of the Carmona
and San Mateo landfill sites. The project was later presented to the ICC-Technical Board (ICC-TB) and then
endorsed to the ICC-Cabinet Committee (ICC-CC).
On May 2, 1996, the PBAC conducted a pre-bid conference where it required the three pre-qualified bidders to
submit, within ninety (90) days, their bid proposals. On August 2, 1996, JANCOM and First Philippines requested
for an extension of time to submit their bids. PACTECH, on the other hand, withdrew from the bidding.
Subsequently, JANCOM entered into a partnership with Asea Brown Boveri (ABB) to form JANCOM
Environmental Corporation while First Philippines formed a partnership with OGDEN. Due to the change in the
composition of the proponents, particularly in their technology partners and contractors, the PBAC conducted a post
pre-qualification evaluation.
During the second bid conference, the bid proposals of First Philippines for the Carmona site and JANCOM for
the San Mateo site were found to be complete and responsive. Consequently, on February 12, 1997, JANCOM and
First Philippines were declared the winning bidders, respectively, for the San Mateo and the Carmona projects.
In a letter dated February 27, 1997, then MMDA Chairman Prospero I. Oreta informed JANCOMs Chief
Executive Officer Jay Alparslan that the EXECOM had approved the PBAC recommendation to award to JANCOM
the San Mateo Waste-to-Energy Project on the basis of the final Evaluation Report declaring JANCOM International
Ltd., Pty., together with Asea Brown Boveri (ABB), as the sole complying (winning) bidder for the San Mateo Waste
Disposal site, subject to negotiation and mutual approval of the terms and conditions of the contract of award. The
letter also notified Alparslan that the EXECOM had created a negotiating team composed of Secretary General
Antonio Hidalgo of the Housing and Urban Development Coordinating Council, Director Ronald G. Fontamillas,
General Manager Roberto Nacianceno of MMDA, and Atty. Eduardo Torres of the host local government unit to
work out and finalize the contract award. Chairman Oreta requested JANCOM to submit to the EXECOM the
composition of its own negotiating team.
Thereafter, after a series of meetings and consultations between the negotiating teams of EXECOM and
JANCOM, a draft BOT contract was prepared and presented to the Presidential Task Force on Solid Waste
Management.
On December 19, 1997, the BOT Contract for the waste-to-energy project was signed between JANCOM and
the Philippine Government, represented by the Presidential Task Force on Solid Waste Management through DENR
Secretary Victor Ramos, CORD-NCR Chairman Dionisio dela Serna, and MMDA Chairman Prospero Oreta.
On March 5, 1998, the BOT contract was submitted to President Ramos for approval but this was too close to
the end of his term which expired without him signing the contract. President Ramos, however, endorsed the
contract to incoming President Joseph E. Estrada.
With the change of administration, the composition of the EXECOM also changed. Memorandum Order No. 19
appointed the Chairman of the Presidential Committee on Flagship Programs and Project to be the EXECOM
chairman. Too, Republic Act No. 8749, otherwise known as the Clean Air Act of 1999, was passed by
Congress. And due to the clamor of residents of Rizal province, President Estrada had, in the interim, also ordered
the closure of the San Mateo landfill. Due to these circumstances, the Greater Manila Solid Waste Management
Committee adopted a resolution not to pursue the BOT contract with JANCOM. Subsequently, in a letter dated
November 4, 1999, Roberto Aventajado, Chairman of the Presidential Committee on Flagship Programs and Project
informed Mr. Jay Alparslan, Chairman of JANCOM, that due to changes in policy and economic environment (Clean
Air Act and non-availability of the San Mateo landfill), the implementation of the BOT contract executed and signed
between JANCOM and the Philippine Government would no longer be pursued. The letter stated that other
alternative implementation arrangements for solid waste management for Metro Manila would be considered
instead.
JANCOM appealed to President Joseph Estrada the position taken by the EXECOM not to pursue the BOT
Contract executed and signed between JANCOM and the Philippine Government, refuting the cited reasons for non-
implementation. Despite the pendency of the appeal, MMDA, on February 22, 2000, caused the publication in a
newspaper of an invitation to pre-qualify and to submit proposals for solid waste management projects for Metro
Manila. JANCOM thus filed with the Regional Trial Court of Pasig a petition for certiorari to declare i) the resolution
of the Greater Metropolitan Manila Solid Waste Management Committee disregarding the BOT Contract and ii) the
acts of MMDA calling for bids and authorizing a new contract for Metro Manila waste management, as illegal,
unconstitutional, and void; and for prohibition to enjoin the Greater Metropolitan Manila Solid Waste Management
Committee and MMDA from implementing the assailed resolution and disregarding the Award to, and the BOT
contract with, JANCOM, and from making another award in its place. On May 29, 2000, the trial court rendered a
decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court hereby renders judgment in favor of petitioners JANCOM
ENVIRONMENTAL CORPORATION, and JANCOM INTERNATIONAL DEVELOPMENT PROJECTS PTY., LIMITED
OF AUSTRALIA, and against respondent GREATER METROPOLITAN MANILA SOLID WASTE MANAGEMENT
COMM., and HON. ROBERTO N. AVENTAJADO, in his Capacity as Chairman of the said Committee, METRO
MANILA DEVELOPMENT AUTHORITY and HON. JEJOMAR C. BINAY, in his capacity as Chairman of said
Authority, declaring the Resolution of respondent Greater Metropolitan Manila Solid Waste Management Committee
disregarding petitioners BOT Award Contract and calling for bids for and authorizing a new contract for the Metro
Manila waste management ILLEGAL and VOID.
Moreover, respondents and their agents are hereby PROHIBITED and ENJOINED from implementing the aforesaid
Resolution and disregarding petitioners BOT Award Contract and from making another award in its place.
Let it be emphasized that this Court is not preventing or stopping the government from implementing infrastructure
projects as it is aware of the proscription under PD 1818. On the contrary, the Court is paving the way for the
necessary and modern solution to the perennial garbage problem that has been the major headache of the
government and in the process would serve to attract more investors in the country.
(Rollo,p. 159.)
Instead of appealing the decision, MMDA filed a special civil action for certiorari with prayer for a temporary
restraining order with the Court of Appeals which was later docketed therein as CA-G.R. SP No. 59021. The
appellate court not only required JANCOM to comment on the petition, it also granted MMDAs prayer for a
temporary restraining order. During the pendency of the petition for certiorari, JANCOM moved for the execution of
the RTC decision, which was opposed by MMDA. However, the RTC granted the motion for execution on the ground
that its decision had become final since MMDA had not appealed the same to the Court of Appeals. MMDA moved
to declare respondents and the RTC judge in contempt of court, alleging that the RTCs grant of execution was
abuse of and interference with judicial rules and processes.
On November 13, 2001, the Court of Appeals dismissed the petition in CA-G.R. SP No. 59021 and a
companion case, CA-G.R. SP No. 60303.
MMDAs motion for reconsideration of said decision having been denied, MMDA filed the instant petition,
alleging that the Court of Appeals gravely erred in finding that:
1) There is a valid and binding contract between the Republic of the Philippines and JANCOM given that:
a) the contract does not bear the signature of the President of the Philippines; b) the conditions
precedent specified in the contract were not complied with; and c) there was no valid notice of award.
2) The MMDA had not seasonably appealed the Decision of the lower court via a petition for certiorari.
Before taking up the substantive issue in question, we shall first dispose of the question as to whether it is fatal
to petitioners cause, that rather than appealing the trial courts decision to the Court of Appeals, it instead filed a
petition for certiorari. While petitioner claims that the trial courts decision never became final by virtue of its having
appealed by certiorari to the Court of Appeals, the trial court ruled that petitioners failure to file an appeal has made
its decision final and executory. At bottom, the question involves a determination of the propriety of petitioners
choice of the remedy of certiorari in questioning the decision of the trial court.
Section 1, Rule 65 of the 1997 Rules of Civil Procedure provides:
Section 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying
that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting
such incidental reliefs as law and justice may require.
The petition shall 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, and a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule 46.
Plain it is from a reading of the above provision that certiorari will lie only where a court has acted without or in
excess of jurisdiction or with grave abuse of discretion. If the court has jurisdiction over the subject matter and of
the person, its rulings upon all questions involved are within its jurisdiction, however irregular or erroneous these
may be, they cannot be corrected by certiorari. Correction may be obtained only by an appeal from the final
decision.
Verily, Section 1, Rule 41 of the 1997 Rules of Civil Procedure provides:
SEC. 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the
case or of a particular matter therein when declared by these Rules to be appealable.
xxx xxx xxx

In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65.
There can be no dispute that the trial courts May 29, 2000 decision was a final order or judgment which MMDA
should have appealed, had it been so minded. In its decision, the trial court disposed of the main controversy by
declaring the Resolution of respondent Greater Metropolitan Manila Solid Waste Management Committee
disregarding petitioners BOT Award Contract and calling for bids for and authorizing a new contract for the Metro
Manila waste management ILLEGAL and VOID. This ruling completely disposed of the controversy between MMDA
and JANCOM. In BA Finance Corporation vs. CA (229 SCRA 5667 [1994]), we held that a final order or judgment
is one which disposes of the whole subject matter or terminates a particular proceeding or action, leaving nothing to
be done but to enforce by execution what has been determined. An order or judgment is deemed final when it
finally disposes of the pending action so that nothing more can be done with it in the trial court. In other words, a
final order is that which gives an end to the litigation. A final order or judgment finally disposes of, adjudicates, or
determines the rights, or some right or rights of the parties, either on the entire controversy or on some definite and
separate branch thereof, and concludes them until it is reversed or set aside. Where no issue is left for future
consideration, except the fact of compliance or non-compliance with the terms of the judgment or doer, such
judgment or order is final and appealable (Investments, Inc. vs. Court of Appeals, 147 SCRA 334 [1987]).
However, instead of appealing the decision, MMDA resorted to the extraordinary remedy of certiorari, as a
mode of obtaining reversal of the judgment. This cannot be done. The judgment was not in any sense null and
void ab initio, incapable of producing any legal effects whatever, which could be resisted at any time and in any
court it was attempted. It was a judgment which could or may have suffered from some substantial error in
procedure or in findings of fact or of law, and on that account, it could have been reversed or modified on
appeal. But since it was not appealed, it became final and has thus gone beyond the reach of any court to modify in
any substantive aspect. The remedy to obtain reversal or modification of the judgment on the merits is appeal. This
is true even if the error, or one of the errors, ascribed to the court rendering the judgment is its lack of jurisdiction
over the subject matter, or the exercise of power in excess thereof, or grave abuse of discretion in the findings of
fact or of law set out in the decision. The existence and availability of the right of appeal proscribes a resort
to certiorari, because one of the requirements for availment of the latter remedy is precisely that there should be no
appeal (Mercado vs. CA, 162 SCRA 75 [1988]). As incisively observed by the Court of Appeals:
The special civil action for certiorari is available only when there is no appeal nor any plain, speedy and adequate
remedy in the ordinary course of law (Sec. 1, rule 65, id.)
Admittedly, appeal could have been taken from the assailed RTC decision. However, petitioners maintain that
appeal is not a speedy remedy because the RTC decision prohibiting them from conducting a bidding for a new
waste disposal project has adverse and serious effects on the citys garbage situation.
Nevertheless, the RTC decision is not immediately executory. Only judgments in actions for injunction, receivership,
accounting and support and such other judgments as are now or may hereafter be declared to be immediately
executory shall be enforced after their rendition and shall not be stayed by an appeal therefrom, unless otherwise
ordered by the trial court (Sec. 4, rule 39, id.).
Since the RTC decision is not immediately executory, appeal would have stayed its execution. Consequently, the
adverse effects of said decision will not visit upon petitioners during the appeal. In other words, appeal is a plain,
speedy and adequate remedy in the ordinary course of the law.
But as no appeal was taken within the reglementary period, the RTC decision had become final and
executory. Well-settled is the rule that the special civil action for certiorari may not be invoked as a substitute for the
remedy of appeal (BF Corporation vs. Court of Appeals, 288 SCRA 267). Therefore, the extraordinary remedy of
certiorari does not lie.
Moreover, petitioners instituted the instant action without filing a motion for reconsideration of the RTC
decision. Doctrinal is the rule that certiorari will not lie unless a motion for reconsideration is first filed before the
respondent tribunal to allow it an opportunity to correct its errors (Zapanta vs. NLRC, 292 SCRA 580).
(Rollo, p. 47-48.)
Admittedly, there are instances where the extraordinary remedy of certiorari may be resorted to despite the
availability of an appeal. In Ruiz, Jr. vs. Court of Appeals (220 SCRA 490 [1993]), we held:
Considered extraordinary, [certiorari] is made available only when there is no appeal, nor any plain, speedy or
adequate remedy in the ordinary course of the law (Rule 65, Rules of Court, Section 1). The long line of decisions
denying the petition for certiorari, either before appeal was availed or specially in instances where the appeal period
has lapsed, far outnumbers the instances when certiorari was given due course. The few significant exceptions
were: when public welfare and the advancement of public policy dictate; or when the broader interests of justice so
require, or when the writs issued are null . . . or when the questioned order amounts to an oppressive exercise of
judicial authority.
In the instant case, however, MMDA has not sufficiently established the existence of any fact or reason to justify
its resort to the extraordinary remedy of certiorari. Neither does the record show that the instant case, indeed, falls
under any of the exceptions aforementioned.
The Court thus holds that the Court of Appeals did not err in declaring that the trial courts decision has become
final due to the failure of MMDA to perfect an appeal within the reglementary period.
With the foregoing disquisition, it would appear unnecessarily to discuss and resolve the substantive issue
posed before the Court. However, the procedural flaw notwithstanding, the Court deems it judicious to take
cognizance of the substantive question, if only to put petitioners mind to rest.
In its second assignment of errors, petitioner MMDA contends that there is no valid and binding contract
between the Republic of the Philippines and respondents because: a) the BOT contract does not bear the signature
of the President of the Philippines; b) the conditions precedent specified in the contract were not complied with; and
that c) there was no valid notice of award.
These contentions hold no water.
Under Article 1305 of the Civil Code, [a] contract is a meeting of minds between two persons whereby one
binds himself, with respect to the other, to give something or to render some service. A contract undergoes three
distinct stages preparation or negotiation, its perfection, and finally, its consummation. Negotiation begins from
the time the prospective contracting parties manifest their interest in the contract and ends at the moment of
agreement of the parties. The perfection or birth of the contract takes place when the parties agree upon the
essential elements of the contract. The last stage is the consummation of the contract wherein the parties fulfill or
perform the terms agreed upon in the contract, culminating in the extinguishment thereof (Bugatti vs. CA, 343 SCRA
335 [2000]). Article 1315 of the Civil Code, provides that a contract is perfected by mere consent. Consent, on the
other hand, is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to
constitute the contract (See Article 1319, Civil Code). In the case at bar, the signing and execution of the contract
by the parties clearly show that, as between the parties, there was a concurrence of offer and acceptance with
respect to the material details of the contract, thereby giving rise to the perfection of the contract. The execution
and signing of the contract is not disputed by the parties. As the Court of Appeals aptly held:
[C]ontrary to petitioners insistence that there was no perfected contract, the meeting of the offer and acceptance
upon the thing and the cause, which are to constitute the contract (Arts. 1315 and 1319, New Civil Code), is borne
out by the records.
Admittedly, when petitioners accepted private respondents bid proposal (offer), there was, in effect, a meeting of the
minds upon the object (waste management project) and the cause (BOT scheme). Hence, the perfection of the
contract. In City of Cebu vs. Heirs of Candido Rubi (306 SCRA 108), the Supreme Court held that the effect of an
unqualified acceptance of the offer or proposal of the bidder is to perfect a contract, upon notice of the award to the
bidder.
(Rollo, p. 48-49.)
In fact, in asserting that there is no valid and binding contract between the parties, MMDA can only allege that
there was no valid notice of award; that the contract does not bear the signature of the President of the Philippines;
and that the conditions precedent specified in the contract were not complied with.
In asserting that the notice of award to JANCOM is not a proper notice of award, MMDA points to the
Implementing Rules and Regulations of Republic Act No. 6957, otherwise known as the BOT Law, which require
that i) prior to the notice of award, an Investment Coordinating Committee clearance must first be obtained; and ii)
the notice of award indicate the time within which the awardee shall submit the prescribed performance security,
proof of commitment of equity contributions and indications of financing resources.
Admittedly, the notice of award has not complied with these requirements. However, the defect was cured by
the subsequent execution of the contract entered into and signed by authorized representatives of the parties;
hence, it may not be gainsaid that there is a perfected contract existing between the parties giving to them certain
rights and obligations (conditions precedents) in accordance with the terms and conditions thereof. We borrow the
words of the Court of Appeals:
Petitioners belabor the point that there was no valid notice of award as to constitute acceptance of private
respondents offer. They maintain that former MMDA Chairman Oretas letter to JANCOM EC dated February 27,
1997 cannot be considered as a valid notice of award as it does not comply with the rules implementing Rep. Act
No. 6957, as amended. The argument is untenable.
The fact that Chairman Oretas letter informed JANCOM EC that it was the sole complying (winning) bidder for
the San Mateo project leads to no other conclusion than that the project was being awarded to it. But assuming that
said notice of award did not comply with the legal requirements, private respondents cannot be faulted therefore
as it was the government representatives duty to issue the proper notice.
In any event, petitioners, as successors of those who previously acted for the government (Chairman Oreta, et al),
are estopped from assailing the validity of the notice of award issued by the latter. As private respondents correctly
observed, in negotiating on the terms and conditions of the BOT contract and eventually signing said contract, the
government had led private respondents to believe that the notice of award given to them satisfied all the
requirement of the law.
While the government cannot be estopped by the erroneous acts of its agents, nevertheless, petitioners may not
now assail the validity of the subject notice of award to the prejudice of private respondents. Until the institution of
the original action before the RTC, invalidity of the notice of award was never invoked as a ground for termination of
the BOT contract. In fact, the reasons cited for terminating the San Mateo project, per Chairman Aventajados letter
to JANCOM EC datedNovember 4, 1999, were its purported non-implementability and non-viability on account of
supervening events, e.g., passage of the Clean Air Act, etc.
(Rollo, p. 49-50.)
MMDA also points to the absence of the Presidents signature as proof that the same has not yet been
perfected. Not only that, the authority of the signatories to bind the Republic has even been put to question. Firstly,
it is pointed out that Memorandum Order No. 202 creating the Executive Committee to oversee the BOT
implementation of solid waste management projects only charged the officials thereof with the duty of
recommending to the President the specific project to be implemented under the BOT scheme for both San
Mateo and Carmona sites. Hence, it is concluded that the signatories, CORD-NCR Chairman Dionisio dela Serna
and MMDA Chairman Prospero Oreta, had no authority to enter into any waste management project for and in
behalf of the Government. Secondly, Section 59 of Executive Order No. 292 is relied upon as authority for the
proposition that presidential approval is necessary for the validity of the contract.
The first argument conveniently overlooks the fact that then Secretary of Environment and Natural Resources
Victor Ramos was likewise a signatory to the contract. While dela Serna and Oreta may not have had any authority
to sign, the Secretary of Environment and Natural Resources has such an authority. In fact, the authority of the
signatories to the contract was not denied by the Solicitor General. Moreover, as observed by the Court of Appeals,
[i]t was not alleged, much less shown, that those who signed in behalf of the Republic had acted beyond the scope
of their authority.
In truth, the argument raised by MMDA does not focus on the lack of authority of the signatories, but on the
amount involved as placing the contract beyond the authority of the signatories to approve. Section 59 of Executive
Order No. 292 reads:
Section 59. Contracts for Approval by the President. Contracts for infrastructure projects, including contracts for the
supply of materials and equipment to be used in said projects, which involve amounts above the ceilings provided in
the preceding section shall be approved by the President: Provided, That the President may, when conditions so
warrant, and upon recommendation of the National Economic and Development Authority, revise the aforesaid
ceilings of approving authority.
However, the Court of Appeals trenchantly observed in this connection:
As regards the Presidents approval of infrastructure projects required under Section 59 of Executive Order No. 292,
said section does not apply to the BOT contract in question. Sec. 59 should be correlated with Sec. 58 of Exec.
Order No. 292. Said sections read:
SECTION 58. Ceiling for Infrastructure Contracts. The following shall be the ceilings for all civil works,
construction and other contracts for infrastructure projects, including supply contracts for said projects, awarded
through public bidding or through negotiation, which may be approved by the Secretaries of Public Works and
Highways, Transportation and Communications, Local Government with respect to Rural Road improvement Project
and governing boards of government-owned or controlled corporations:
xxx xxx xxx
Save as provided for above, the approval ceilings assigned to the departments/agencies involved in national
infrastructure and construction projects shall remain at the levels provided in existing laws, rules and regulations.
Contrary to petitioners claim that all infrastructure contracts require the Presidents approval (Petition, p. 16), Sec.
59 provides that such approval is required only in infrastructure contracts involving amounts exceeding the ceilings
set in Sec. 58. Significantly, the infrastructure contracts treated in Sec. 58 pertain only to those which may be
approved by the Secretaries of Public Works and Highways, Transportation and Communications, Local
Government (with respect to Rural Road Improvement Project) and the governing boards of certain government-
owned or controlled corporations. Consequently, the BOT contract in question, which was approved by the DENR
Secretary and the EXCOM Chairman and Co-Chairman, is not covered by Exec. Order No. 292.
(Rollo, p. 51-52.)
The provision pertinent to the authority of the Secretary of Environment and Natural Resources would actually
be Section 1 of Executive Order No. 380, Series of 1989 which provides that The Secretaries of all Departments
and Governing Boards of government-owned or controlled corporations [except the Secretaries of Public Works and
Highways, Transportation and Communication, and Local Government with respect to Rural Road Improvement
projects] can enter into publicly bidded contracts regardless of amount (See also Section 515,Government
Accounting and Auditing Manual Volume I). Consequently, MMDA may not claim that the BOT contract is not
valid and binding due to the lack of presidential approval.
Significantly, the contract itself provides that the signature of the President is necessary only for its effectivity
(not perfection), pursuant to Article 19 of the contract, which reads:
This contract shall become effective upon approval by the President of the Republic of the Philippines pursuant to
existing laws subject to the condition, precedent in Article 18. This contract shall remain in full force and effect for
twenty-five (25) years subject to renewal for another twenty-five (25) years from the date of Effectivity. Such
renewal will be subject to mutual agreement of the parties and approval of the President of the Republic of
the Philippines.
(Rollo, p. 94.)
Stated differently, while the twenty-five year effectivity period of the contract has not yet started to run because
of the absence of the Presidents signature, the contract has, nonetheless, already been perfected.
As to the contention that there is no perfected contract due to JANCOMs failure to comply with several
conditions precedent, the same is, likewise, unmeritorious. Article 18 of the BOT contract reads:
ARTICLE 18
CONDITIONS PRECEDENT
xxx
18.2.1. The BOT COMPANY hereby undertakes to provide the following within 2 months from execution
of this Contract as an effective document:
a) sufficient proof of the actual equity contributions from the proposed shareholders of the BOT
COMPANY in a total amount not less than PHP500,000,000 in accordance with the BOT Law and the
implementing rules and regulations;
b) sufficient proof of financial commitment from a lending institution sufficient to cover total project cost in
accordance with the BOT Law and the implementing rules and regulations;
c) to support its obligation under this Contract, the BOT COMPANY shall submit a security bond to the
CLIENT in accordance with the form and amount required under the BOT Law.
xxx
18.2.3 Completion of Documentary Requirements as per Schedule 4 by the BOT Company
As clearly stated in Article 18, JANCOM undertook to comply with the stated conditions within 2 months from
execution of the Contract as an effective document. Since the President of the Philippines has not yet affixed his
signature on the contract, the same has not yet become an effective document. Thus, the two-month period within
which JANCOM should comply with the conditions has not yet started to run. It cannot thus be said that JANCOM
has already failed to comply with the conditions precedent mandated by the contract. By arguing that failure [of
JANCOM] to comply with the conditions results in the failure of a contract or prevents the judicial relation from
coming into existence, MMDA reads into the contract something which is not contemplated by the parties. If the
terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of
its stipulations shall control (Art. 1370, Civil Code).
We, therefore, hold that the Court of Appeals did not err when it declared the existence of a valid and perfected
contract between the Republic of the Philippines and JANCOM. There being a perfected contract, MMDA cannot
revoke or renounce the same without the consent of the other. From the moment of perfection, the parties are
bound not only to the fulfillment of what has been expressly stipulated but also to all the consequences which,
according to their nature, may be in keeping with good faith, usage, and law (Article 1315, Civil Code). The contract
has the force of law between the parties and they are expected to abide in good faith by their respective contractual
commitments, not weasel out of them. Just as nobody can be forced to enter into a contract, in the same manner,
once a contract is entered into, no party can renounce it unilaterally or without the consent of the other. It is a
general principle of law that no one may be permitted to change his mind or disavow and go back upon his own
acts, or to proceed contrary thereto, to the prejudice of the other party. Nonetheless, it has to be repeated that
although the contract is a perfected one, it is still ineffective or unimplementable until and unless it is approved by
the President.
Moreover, if after a perfected and binding contract has been executed between the parties, it occurs to one of
them to allege some defect therein as reason for annulling it, the alleged defect must be conclusively proven, since
the validity and the fulfillment of contracts cannot be left to the will of one of the contracting parties. In the case at
bar, the reasons cited by MMDA for not pushing through with the subject contract were: 1) the passage of the Clean
Air Act, which allegedly bans incineration; 2) the closure of the San Mateo landfill site; and 3) the costly tipping
fee. These reasons are bereft of merit
Once again, we make reference to the insightful declarations of the Court of Appeals:
Sec. 20 of the Clean Air Act pertinently reads:
SECTION 20. Ban on Incineration. Incineration, hereby defined as the burning of municipal, bio-
chemical and hazardous wastes, which process emits poisonous and toxic fumes, is hereby prohibited: x x x.
Section 20 does not absolutely prohibit incineration as a mode of waste disposal; rather only those burning
processes which emit poisonous and toxic fumes are banned.
As regards the projected closure of the San Mateo landfill vis--vis the implementability of the contract, Art. 2.3
thereof expressly states that [i]n the event the project Site is not delivered x x x, the Presidential task Force on Solid
Waste Management (PTFSWM) and the Client, shall provide within a reasonable period of time, a suitable
alternative acceptable to the BOT COMPANY.
With respect to the alleged financial non-viability of the project because the MMDA and the local government units
cannot afford the tipping fees under the contract, this circumstance cannot, by itself, abrogate the entire agreement.
Doctrinal is the rule that neither the law nor the courts will extricate a party from an unwise or undesirable contract,
or stipulation for that matter, he or she entered into with full awareness of its consequences (Opulencia vs. CA, 293
SCRA 385). Indeed, the terms and conditions of the subject contract were arrived at after due negotiations between
the parties thereto.
(Rollo, p. 54.)
WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of merit and the decision of the
Court of Appeals in CA-G.R. SP No. 59021 dated November 13, 2001 AFFIRMED. No costs.
SO ORDERED.
Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.
Carpio, J., no part. I was former counsel to a foreign partner of Jancom Environmental Corporation.
Oposa v. Factoran
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." 4Consequently, 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.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5
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 old-growth 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 self-preservation 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, 21this 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 sub-heading 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, 22 Mr. Justice Isagani A. Cruz, a distinguished member of
this Court, says:
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 non-impairment 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. 27
cannot be invoked.
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 non-impairment 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, 29 quoted in Philippine American Life Insurance Co. vs.
Auditor General, 30 to wit:
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
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 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.
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 embraceeveryone 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. . . .
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 embraceeveryone 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. . . .
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.

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Contents

LA BUGAL-BLAAN TRIBAL ASSOCIATION v. Executive Secretary.....................................................................1

LA BUGAL-BLAAN TRIBAL ASSOCIATION v. Executive Secretary

/---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\

They pray that the Court issue an order:

REQUISITES FOR JUDICIAL REVIEW

(1) The existence of an actual and appropriate case;

As earlier stated, petitioners meet this requirement.

The WMCP FTAA provides:

14.3 Future Legislation

Section 2, Article XII reads in full:

THE SPANISH REGIME

THE AMERICAN OCCUPATION AND

THE CONCESSION REGIME

THE 1935 CONSTITUTION AND THE

NATIONALIZATION OF NATURAL RESOURCES

THE PETROLEUM ACT OF 1949

AND THE CONCESSION SYSTEM

Other liabilities of the system have also been noted:

Eventually, the concession system failed for reasons explained by Dimagiba:

PRESIDENTIAL DECREE NO. 87, THE 1973

CONSTITUTION AND THE SERVICE CONTRACT SYSTEM

THE 1987 CONSTITUTION AND TECHNICAL

OR FINANCIAL ASSISTANCE AGREEMENTS

A third option is found in the third paragraph of the same section:

The State may directly undertake such activities.

EXECUTIVE ORDER NO. 279

Nevertheless, petitioners contentions have no merit.

OF THE WMCP FTAA

MR. VILLEGAS. That is right.

SR. TAN. So those are the safeguards[?]

SR. TAN. Thank you, Madam President.[230] [ mphasis supplied.]

MR. GARCIA. Thank you.

Thank you, and I vote yes.[233] [ mphasis supplied.]

MR. TADEO. Nais ko lamang ipaliwanag ang aking boto.

This Court is likewise not persuaded.

So we are still limiting it only to Filipino citizens.

MS. QUESADA. Going back to Section 3, the section suggests that:

MR. DAVIDE. May I be allowed to explain the proposal?

MR. MAAMBONG. Subject to the three-minute rule, Madam President.

MR. DAVIDE. It will not take three minutes.

Thank you.[239] [ mphasis supplied.]

DRAFT OF THE UP LAW CONSTITUTION PROJECT

PROPOSED RESOLUTION NO. 496 OF THE CONSTITUTIONAL COMMISSION

ARTICLE XII OF THE 1987 CONSTITUTION

Accordingly, Professor Agabin recommends that:

Exploration, as defined by R.A. No. 7942,

A foreign-owned/-controlled corporation may likewise be granted a mineral processing permit.[270] Mineral

Section 41,[290] which allows the withdrawal of the contractor in an FTAA;

(1) The following provisions of Republic Act No. 7942:

(a) The proviso in Section 3 (aq),

(b) Section 23,

(c) Section 33 to 41,

(d) Section 56,

(e) The second and third paragraphs of Section 81, and

(f) Section 90.

Vitug, J., see Separate Opinion.

Ynares-Santiago, Sandoval-Gutierrez and Austria-Martinez, JJ., joins J. Panganibans separate opinion.

Azcuna, no part, one of the parties was a client.

[G.R. No. 110249. August 21, 1997]

Section 8. This Ordinance shall take effect on January 1, 1993.

Please be guided accordingly.

BE IT ORDAINED BY THE SANGGUNIANG PANLALAWIGAN IN SESSION ASSEMBLED:

Section II. PRELIMINARY CONSIDERATIONS