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Que Po Lay is appealing from the decision of the Court of First Instance of Our Old Civil code, ( Spanish Civil Code of 1889) has a similar provision about
Manila, finding him guilty of violating Central Bank Circular No. 20 in the effectivity of laws, (Article 1 thereof), namely, that laws shall be binding
connection with section 34 of Republic Act No. 265, and sentencing him to twenty days after their promulgation, and that their promulgation shall be
suffer six months imprisonment, to pay a fine of P1,000 with subsidiary understood as made on the day of the termination of the publication of the laws
imprisonment in case of insolvency, and to pay the costs. in the Gazette. Manresa, commenting on this article is of the opinion that the
word "laws" include regulations and circulars issued in accordance with the
The charge was that the appellant who was in possession of foreign exchange same. He says:
consisting of U.S. dollars, U.S. checks and U.S. money orders amounting to
about $7,000 failed to sell the same to the Central Bank through its agents El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civil en
within one day following the receipt of such foreign exchange as required by Sentencia de 22 de Junio de 1910, en el sentido de que bajo la
Circular No. 20. the appeal is based on the claim that said circular No. 20 was denominacion generica de leyes, se comprenden tambien
not published in the Official Gazette prior to the act or omission imputed to the los Reglamentos, Reales decretos, Instrucciones, Circulares y Reales
appellant, and that consequently, said circular had no force and effect. It is ordenes dictadas de conformidad con las mismas por el Gobierno en
contended that Commonwealth Act. No., 638 and Act 2930 both require said uso de su potestad. Tambien el poder ejecutivo lo ha venido
circular to be published in the Official Gazette, it being an order or notice of entendiendo asi, como lo prueba el hecho de que muchas de sus
general applicability. The Solicitor General answering this contention says that disposiciones contienen la advertencia de que empiezan a regir el
Commonwealth Act. No. 638 and 2930 do not require the publication in the mismo dia de su publicacion en la Gaceta, advertencia que seria
Official Gazette of said circular issued for the implementation of a law in order perfectamente inutil si no fuera de aplicacion al caso el articulo 1.o del
to have force and effect. Codigo Civil. (Manresa, Codigo Civil Espaol, Vol. I. p. 52).
We agree with the Solicitor General that the laws in question do not require In the present case, although circular No. 20 of the Central Bank was issued
the publication of the circulars, regulations and notices therein mentioned in in the year 1949, it was not published until November 1951, that is, about 3
order to become binding and effective. All that said two laws provide is that months after appellant's conviction of its violation. It is clear that said circular,
laws, resolutions, decisions of the Supreme Court and Court of Appeals, particularly its penal provision, did not have any legal effect and bound no one
notices and documents required by law to be of no force and effect. In other until its publication in the Official Gazzette or after November 1951. In other
words, said two Acts merely enumerate and make a list of what should be words, appellant could not be held liable for its violation, for it was not binding
published in the Official Gazette, presumably, for the guidance of the different at the time he was found to have failed to sell the foreign exchange in his
branches of the Government issuing same, and of the Bureau of Printing. possession thereof.
However, section 11 of the Revised Administrative Code provides that statutes But the Solicitor General also contends that this question of non-publication of
passed by Congress shall, in the absence of special provision, take effect at the Circular is being raised for the first time on appeal in this Court, which
cannot be done by appellant. Ordinarily, one may raise on appeal any question 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566,
of law or fact that has been raised in the court below and which is within the 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800,
issues made by the parties in their pleadings. (Section 19, Rule 48 of the Rules 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061,
of Court). But the question of non-publication is fundamental and decisive. If 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300,
as a matter of fact Circular No. 20 had not been published as required by law 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840,
before its violation, then in the eyes of the law there was no such circular to be 1842-1847.
violated and consequently appellant committed no violation of the circular or
committed any offense, and the trial court may be said to have had no b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116,
jurisdiction. This question may be raised at any stage of the proceeding 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192,
whether or not raised in the court below. 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228,
231-239, 241-245, 248, 251, 253-261, 263-269, 271-273,
In view of the foregoing, we reverse the decision appealed from and acquit the 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-
appellant, with costs de oficio. 315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382,
385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488,
Paras, C.J., Bengzon, Padilla, Reyes, Bautista Angelo, Labrador, Concepcion 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609,
and Diokno, JJ., concur. 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-
839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-
G.R. No. L-63915 April 24, 1985 1278.
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM,
INC. [MABINI], petitioners, d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270,
vs. 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the 1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-
President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive 1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-
Assistant to the President , MELQUIADES P. DE LA CRUZ, in his 1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-
capacity as Director, Malacaang Records Office, and FLORENDO S. 1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-
PABLO, in his capacity as Director, Bureau of Printing, respondents. 1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-
1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866,
ESCOLIN, J.: 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952,
1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-
2145, 2147-2161, 2163-2244.
Invoking the people's right to be informed on matters of public concern, a right
recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well
as the principle that laws to be valid and enforceable must be published in the e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457-
471, 474-492, 494-507, 509-510, 522, 524-528, 531-532,
Official Gazette or otherwise effectively promulgated, petitioners seek a writ of
536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570,
mandamus to compel respondent public officials to publish, and/or cause the
574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703,
publication in the Official Gazette of various presidential decrees, letters of
705-707, 712-786, 788-852, 854-857.
instructions, general orders, proclamations, executive orders, letter of
implementation and administrative orders.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27,
39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378,
179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 380-433, 436-439.
326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427,
The respondents, through the Solicitor General, would have this case the Governor General to call a special election for the position of municipal
dismissed outright on the ground that petitioners have no legal personality or president in the town of Silay, Negros Occidental. Speaking for this Court, Mr.
standing to bring the instant petition. The view is submitted that in the absence Justice Grant T. Trent said:
of any showing that petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the presidential issuances in We are therefore of the opinion that the weight of authority
question 2 said petitioners are without the requisite legal personality to institute supports the proposition that the relator is a proper party to
this mandamus proceeding, they are not being "aggrieved parties" within the proceedings of this character when a public right is sought to
meaning of Section 3, Rule 65 of the Rules of Court, which we quote: be enforced. If the general rule in America were otherwise, we
think that it would not be applicable to the case at bar for the
SEC. 3. Petition for Mandamus.When any tribunal, reason 'that it is always dangerous to apply a general rule to
corporation, board or person unlawfully neglects the a particular case without keeping in mind the reason for the
performance of an act which the law specifically enjoins as a rule, because, if under the particular circumstances the
duty resulting from an office, trust, or station, or unlawfully reason for the rule does not exist, the rule itself is not
excludes another from the use a rd enjoyment of a right or applicable and reliance upon the rule may well lead to error'
office to which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of No reason exists in the case at bar for applying the general
law, the person aggrieved thereby may file a verified petition rule insisted upon by counsel for the respondent. The
in the proper court alleging the facts with certainty and praying circumstances which surround this case are different from
that judgment be rendered commanding the defendant, those in the United States, inasmuch as if the relator is not a
immediately or at some other specified time, to do the act proper party to these proceedings no other person could be,
required to be done to Protect the rights of the petitioner, and as we have seen that it is not the duty of the law officer of the
to pay the damages sustained by the petitioner by reason of Government to appear and represent the people in cases of
the wrongful acts of the defendant. this character.
Upon the other hand, petitioners maintain that since the subject of the petition The reasons given by the Court in recognizing a private citizen's legal
concerns a public right and its object is to compel the performance of a public personality in the aforementioned case apply squarely to the present petition.
duty, they need not show any specific interest for their petition to be given due Clearly, the right sought to be enforced by petitioners herein is a public right
course. recognized by no less than the fundamental law of the land. If petitioners were
not allowed to institute this proceeding, it would indeed be difficult to conceive
The issue posed is not one of first impression. As early as the 1910 case of any other person to initiate the same, considering that the Solicitor General,
of Severino vs. Governor General, 3 this Court held that while the general rule the government officer generally empowered to represent the people, has
is that "a writ of mandamus would be granted to a private individual only in entered his appearance for respondents in this case.
those cases where he has some private or particular interest to be subserved,
or some particular right to be protected, independent of that which he holds Respondents further contend that publication in the Official Gazette is not a
with the public at large," and "it is for the public officers exclusively to apply for sine qua non requirement for the effectivity of laws where the laws themselves
the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 provide for their own effectivity dates. It is thus submitted that since the
M.e., 469]," nevertheless, "when the question is one of public right and the presidential issuances in question contain special provisions as to the date
object of the mandamus is to procure the enforcement of a public duty, the they are to take effect, publication in the Official Gazette is not indispensable
people are regarded as the real party in interest and the relator at whose for their effectivity. The point stressed is anchored on Article 2 of the Civil
instigation the proceedings are instituted need not show that he has any legal Code:
or special interest in the result, it being sufficient to show that he is a citizen
and as such interested in the execution of the laws [High, Extraordinary Legal Art. 2. Laws shall take effect after fifteen days following the
Remedies, 3rd ed., sec. 431].
completion of their publication in the Official Gazette, unless
it is otherwise provided, ...
Thus, in said case, this Court recognized the relator Lope Severino, a private
individual, as a proper party to the mandamus proceedings brought to compel
The interpretation given by respondent is in accord with this Court's contents and texts of such decrees. As the Supreme Court of Spain ruled:
construction of said article. In a long line of decisions, 4 this Court has ruled "Bajo la denominacion generica de leyes, se comprenden tambien los
that publication in the Official Gazette is necessary in those cases where the reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines
legislation itself does not provide for its effectivity date-for then the date of dictadas de conformidad con las mismas por el Gobierno en uso de su
publication is material for determining its date of effectivity, which is the potestad. 5
fifteenth day following its publication-but not when the law itself provides for
the date when it goes into effect. The very first clause of Section I of Commonwealth Act 638 reads: "There shall
be published in the Official Gazette ... ." The word "shall" used therein imposes
Respondents' argument, however, is logically correct only insofar as it equates upon respondent officials an imperative duty. That duty must be enforced if the
the effectivity of laws with the fact of publication. Considered in the light of Constitutional right of the people to be informed on matters of public concern
other statutes applicable to the issue at hand, the conclusion is easily reached is to be given substance and reality. The law itself makes a list of what should
that said Article 2 does not preclude the requirement of publication in the be published in the Official Gazette. Such listing, to our mind, leaves
Official Gazette, even if the law itself provides for the date of its effectivity. respondents with no discretion whatsoever as to what must be included or
Thus, Section 1 of Commonwealth Act 638 provides as follows: excluded from such publication.
Section 1. There shall be published in the Official Gazette [1] The publication of all presidential issuances "of a public nature" or "of general
all important legisiative acts and resolutions of a public nature applicability" is mandated by law. Obviously, presidential decrees that provide
of the, Congress of the Philippines; [2] all executive and for fines, forfeitures or penalties for their violation or otherwise impose a
administrative orders and proclamations, except such as have burden or. the people, such as tax and revenue measures, fall within this
no general applicability; [3] decisions or abstracts of decisions category. Other presidential issuances which apply only to particular persons
of the Supreme Court and the Court of Appeals as may be or class of persons such as administrative and executive orders need not be
deemed by said courts of sufficient importance to be so published on the assumption that they have been circularized to all
published; [4] such documents or classes of documents as concerned. 6
may be required so to be published by law; and [5] such
documents or classes of documents as the President of the It is needless to add that the publication of presidential issuances "of a public
Philippines shall determine from time to time to have general nature" or "of general applicability" is a requirement of due process. It is a rule
applicability and legal effect, or which he may authorize so to of law that before a person may be bound by law, he must first be officially and
be published. ... specifically informed of its contents. As Justice Claudio Teehankee said
in Peralta vs. COMELEC 7:
The clear object of the above-quoted provision is to give the general public
adequate notice of the various laws which are to regulate their actions and In a time of proliferating decrees, orders and letters of
conduct as citizens. Without such notice and publication, there would be no instructions which all form part of the law of the land, the
basis for the application of the maxim "ignorantia legis non excusat." It would requirement of due process and the Rule of Law demand that
be the height of injustice to punish or otherwise burden a citizen for the the Official Gazette as the official government repository
transgression of a law of which he had no notice whatsoever, not even a promulgate and publish the texts of all such decrees, orders
constructive one. and instructions so that the people may know where to obtain
their official and specific contents.
Perhaps at no time since the establishment of the Philippine Republic has the
publication of laws taken so vital significance that at this time when the people The Court therefore declares that presidential issuances of general
have bestowed upon the President a power heretofore enjoyed solely by the application, which have not been published, shall have no force and effect.
legislature. While the people are kept abreast by the mass media of the Some members of the Court, quite apprehensive about the possible unsettling
debates and deliberations in the Batasan Pambansaand for the diligent effect this decision might have on acts done in reliance of the validity of those
ones, ready access to the legislative recordsno such publicity accompanies presidential decrees which were published only during the pendency of this
the law-making process of the President. Thus, without publication, the people petition, have put the question as to whether the Court's declaration of
have no means of knowing what presidential decrees have actually been invalidity apply to P.D.s which had been enforced or implemented prior to their
promulgated, much less a definite way of informing themselves of the specific
publication. The answer is all too familiar. In similar situations in the past this the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon
Court had taken the pragmatic and realistic course set forth in Chicot County Aquino, ruled that "publication is necessary to apprise the public of the
Drainage District vs. Baxter Bank 8 to wit: contents of [penal] regulations and make the said penalties binding on the
persons affected thereby. " The cogency of this holding is apparently
The courts below have proceeded on the theory that the Act recognized by respondent officials considering the manifestation in their
of Congress, having been found to be unconstitutional, was comment that "the government, as a matter of policy, refrains from prosecuting
not a law; that it was inoperative, conferring no rights and violations of criminal laws until the same shall have been published in the
imposing no duties, and hence affording no basis for the Official Gazette or in some other publication, even though some criminal laws
challenged decree. Norton v. Shelby County, 118 U.S. 425, provide that they shall take effect immediately.
442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566.
It is quite clear, however, that such broad statements as to the WHEREFORE, the Court hereby orders respondents to publish in the Official
effect of a determination of unconstitutionality must be taken Gazette all unpublished presidential issuances which are of general
with qualifications. The actual existence of a statute, prior to application, and unless so published, they shall have no binding force and
such a determination, is an operative fact and may have effect.
consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The SO ORDERED.
effect of the subsequent ruling as to invalidity may have to be
considered in various aspects-with respect to particular
Relova, J., concurs.
conduct, private and official. Questions of rights claimed to
have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public Aquino, J., took no part.
policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions Concepcion, Jr., J., is on leave.
are among the most difficult of those which have engaged the
attention of courts, state and federal and it is manifest from Separate Opinions
numerous decisions that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified. FERNANDO, C.J., concurring (with qualification):
Consistently with the above principle, this Court in Rutter vs. There is on the whole acceptance on my part of the views expressed in the
Esteban 9 sustained the right of a party under the Moratorium Law, albeit said ably written opinion of Justice Escolin. I am unable, however, to concur insofar
right had accrued in his favor before said law was declared unconstitutional by as it would unqualifiedly impose the requirement of publication in the Official
this Court. Gazette for unpublished "presidential issuances" to have binding force and
effect.
Similarly, the implementation/enforcement of presidential decrees prior to their
publication in the Official Gazette is "an operative fact which may have I shall explain why.
consequences which cannot be justly ignored. The past cannot always be
erased by a new judicial declaration ... that an all-inclusive statement of a
1. It is of course true that without the requisite publication, a due process
principle of absolute retroactive invalidity cannot be justified."
question would arise if made to apply adversely to a party who is not even
aware of the existence of any legislative or executive act having the force and
From the report submitted to the Court by the Clerk of Court, it appears that of effect of law. My point is that such publication required need not be confined
the presidential decrees sought by petitioners to be published in the Official to the Official Gazette. From the pragmatic standpoint, there is an advantage
Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and to be gained. It conduces to certainty. That is too be admitted. It does not
1937 to 1939, inclusive, have not been so published. 10 Neither the subject follow, however, that failure to do so would in all cases and under all
matters nor the texts of these PDs can be ascertained since no copies thereof circumstances result in a statute, presidential decree or any other executive
are available. But whatever their subject matter may be, it is undisputed that act of the same category being bereft of any binding force and effect. To so
none of these unpublished PDs has ever been implemented or enforced by
hold would, for me, raise a constitutional question. Such a pronouncement infirmity. 6 In traditional terminology, there could arise then a question of
would lend itself to the interpretation that such a legislative or presidential act unconstitutional application. That is as far as it goes.
is bereft of the attribute of effectivity unless published in the Official Gazette.
There is no such requirement in the Constitution as Justice Plana so aptly 4. Let me make therefore that my qualified concurrence goes no further than
pointed out. It is true that what is decided now applies only to past "presidential to affirm that publication is essential to the effectivity of a legislative or
issuances". Nonetheless, this clarification is, to my mind, needed to avoid any executive act of a general application. I am not in agreement with the view that
possible misconception as to what is required for any statute or presidential such publication must be in the Official Gazette. The Civil Code itself in its
act to be impressed with binding force or effectivity. Article 2 expressly recognizes that the rule as to laws taking effect after fifteen
days following the completion of their publication in the Official Gazette is
2. It is quite understandable then why I concur in the separate opinion of subject to this exception, "unless it is otherwise provided." Moreover, the Civil
Justice Plana. Its first paragraph sets forth what to me is the constitutional Code is itself only a legislative enactment, Republic Act No. 386. It does not
doctrine applicable to this case. Thus: "The Philippine Constitution does not and cannot have the juridical force of a constitutional command. A later
require the publication of laws as a prerequisite for their effectivity, unlike some legislative or executive act which has the force and effect of law can legally
Constitutions elsewhere. It may be said though that the guarantee of due provide for a different rule.
process requires notice of laws to affected Parties before they can be bound
thereby; but such notice is not necessarily by publication in the Official 5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice
Gazette. The due process clause is not that precise. 1 I am likewise in Escolin that presidential decrees and executive acts not thus previously
agreement with its closing paragraph: "In fine, I concur in the majority decision published in the Official Gazette would be devoid of any legal character. That
to the extent that it requires notice before laws become effective, for no person would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
should be bound by a law without notice. This is elementary fairness. However, undesirable consequences. I find myself therefore unable to yield assent to
I beg to disagree insofar as it holds that such notice shall be by publication in such a pronouncement.
the Official Gazette. 2
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and
3. It suffices, as was stated by Judge Learned Hand, that law as the command Alampay concur in this separate opinion.
of the government "must be ascertainable in some form if it is to be enforced
at all. 3 It would indeed be to reduce it to the level of mere futility, as pointed
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine
that it must be in the Official Gazette. To be sure once published therein there TEEHANKEE, J., concurring:
is the ascertainable mode of determining the exact date of its effectivity. Still
for me that does not dispose of the question of what is the jural effect of past I concur with the main opinion of Mr. Justice Escolin and the concurring opinion
presidential decrees or executive acts not so published. For prior thereto, it of Mme. Justice Herrera. The Rule of Law connotes a body of norms and laws
could be that parties aware of their existence could have conducted published and ascertainable and of equal application to all similarly
themselves in accordance with their provisions. If no legal consequences circumstances and not subject to arbitrary change but only under certain set
could attach due to lack of publication in the Official Gazette, then serious procedures. The Court has consistently stressed that "it is an elementary rule
problems could arise. Previous transactions based on such "Presidential of fair play and justice that a reasonable opportunity to be informed must be
Issuances" could be open to question. Matters deemed settled could still be afforded to the people who are commanded to obey before they can be
inquired into. I am not prepared to hold that such an effect is contemplated by punished for its violation, 1 citing the settled principle based on due process
our decision. Where such presidential decree or executive act is made the enunciated in earlier cases that "before the public is bound by its contents,
basis of a criminal prosecution, then, of course, its ex post facto character especially its penal provisions, a law, regulation or circular must first be
becomes evident. 5 In civil cases though, retroactivity as such is not conclusive published and the people officially and specially informed of said contents and
on the due process aspect. There must still be a showing of arbitrariness. its penalties.
Moreover, where the challenged presidential decree or executive act was
issued under the police power, the non-impairment clause of the Constitution Without official publication in the Official Gazette as required by Article 2 of the
may not always be successfully invoked. There must still be that process of Civil Code and the Revised Administrative Code, there would be no basis nor
balancing to determine whether or not it could in such a case be tainted by justification for the corollary rule of Article 3 of the Civil Code (based on
constructive notice that the provisions of the law are ascertainable from the Article 2 of the Civil Code provides that "laws shall take effect after fifteen days
public and official repository where they are duly published) that "Ignorance of following the completion of their publication in the Official Gazette, unless it is
the law excuses no one from compliance therewith. otherwise provided " Two things may be said of this provision: Firstly, it
obviously does not apply to a law with a built-in provision as to when it will take
Respondents' contention based on a misreading of Article 2 of the Civil Code effect. Secondly, it clearly recognizes that each law may provide not only a
that "only laws which are silent as to their effectivity [date] need be published different period for reckoning its effectivity date but also a different mode of
in the Official Gazette for their effectivity" is manifestly untenable. The plain notice. Thus, a law may prescribe that it shall be published elsewhere than in
text and meaning of the Civil Code is that "laws shall take effect after fifteen the Official Gazette.
days following the completion of their publication in the Official Gazette, unless
it is otherwise provided, " i.e. a different effectivity date is provided by the law Commonwealth Act No. 638, in my opinion, does not support the proposition
itself. This proviso perforce refers to a law that has been duly published that for their effectivity, laws must be published in the Official Gazette. The
pursuant to the basic constitutional requirements of due process. The best said law is simply "An Act to Provide for the Uniform Publication and
example of this is the Civil Code itself: the same Article 2 provides otherwise Distribution of the Official Gazette." Conformably therewith, it authorizes the
that it "shall take effect [only] one year [not 15 days] after such publication. 2 To publication of the Official Gazette, determines its frequency, provides for its
sustain respondents' misreading that "most laws or decrees specify the date sale and distribution, and defines the authority of the Director of Printing in
of their effectivity and for this reason, publication in the Official Gazette is not relation thereto. It also enumerates what shall be published in the Official
necessary for their effectivity 3 would be to nullify and render nugatory the Civil Gazette, among them, "important legislative acts and resolutions of a public
Code's indispensable and essential requirement of prior publication in the nature of the Congress of the Philippines" and "all executive and administrative
Official Gazette by the simple expedient of providing for immediate effectivity orders and proclamations, except such as have no general applicability." It is
or an earlier effectivity date in the law itself before the completion of 15 days noteworthy that not all legislative acts are required to be published in the
following its publication which is the period generally fixed by the Civil Code Official Gazette but only "important" ones "of a public nature." Moreover, the
for its proper dissemination. said law does not provide that publication in the Official Gazette is essential
for the effectivity of laws. This is as it should be, for all statutes are equal and
MELENCIO-HERRERA, J., concurring: stand on the same footing. A law, especially an earlier one of general
application such as Commonwealth Act No. 638, cannot nullify or restrict the
I agree. There cannot be any question but that even if a decree provides for a operation of a subsequent statute that has a provision of its own as to when
and how it will take effect. Only a higher law, which is the Constitution, can
date of effectivity, it has to be published. What I would like to state in
assume that role.
connection with that proposition is that when a date of effectivity is mentioned
in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have In fine, I concur in the majority decision to the extent that it requires notice
retroactive effect to the date of effectivity mentioned in the decree itself. There before laws become effective, for no person should be bound by a law without
should be no retroactivity if the retroactivity will run counter to constitutional notice. This is elementary fairness. However, I beg to disagree insofar as it
rights or shall destroy vested rights. holds that such notice shall be by publication in the Official Gazette.
PLANA, J., concurring (with qualification): Cuevas and Alampay, JJ., concur.
The Philippine Constitution does not require the publication of laws as a GUTIERREZ, Jr., J., concurring:
prerequisite for their effectivity, unlike some Constitutions elsewhere. * It may
be said though that the guarantee of due process requires notice of laws to I concur insofar as publication is necessary but reserve my vote as to the
affected parties before they can be bound thereby; but such notice is not necessity of such publication being in the Official Gazette.
necessarily by publication in the Official Gazette. The due process clause is
not that precise. Neither is the publication of laws in the Official DE LA FUENTE, J., concurring:
Gazette required by any statute as a prerequisite for their effectivity, if said
laws already provide for their effectivity date.
I concur insofar as the opinion declares the unpublished decrees and ALTERNATIBONG LINGAP PANLIGAL (SALIGAN); and LEGAL RIGHTS
issuances of a public nature or general applicability ineffective, until due AND NATURAL RESOURCES CENTER, INC. (LRC), petitioners,
publication thereof. vs.
VICTOR O. RAMOS, Secretary, Department of Environment and Natural
[G.R. No. 127882. December 1, 2004] Resources (DENR); HORACIO RAMOS, Director, Mines and
Geosciences Bureau (MGB-DENR); RUBEN TORRES, Executive
LA BUGAL-BLAAN TRIBAL ASSOCIATION, INC., Represented by its Secretary; and WMC (PHILIPPINES), INC.,[4] respondents.
Chairman FLONG MIGUEL M. LUMAYONG; WIGBERTO E. TAADA;
PONCIANO BENNAGEN; JAIME TADEO; RENATO R. CONSTANTINO RESOLUTION
JR.; FLONG AGUSTIN M. DABIE; ROBERTO P. AMLOY; RAQIM L.
DABIE; SIMEON H. DOLOJO; IMELDA M. GANDON; LENY B. PANGANIBAN, J.:
GUSANAN; MARCELO L. GUSANAN; QUINTOL A. LABUAYAN;
LOMINGGES D. LAWAY; BENITA P. TACUAYAN; Minors JOLY L. All mineral resources are owned by the State. Their exploration,
BUGOY, Represented by His Father UNDERO D. BUGOY and ROGER M. development and utilization (EDU) must always be subject to the full control
DADING; Represented by His Father ANTONIO L. DADING; ROMY M. and supervision of the State. More specifically, given the inadequacy of Filipino
LAGARO, Represented by His Father TOTING A. LAGARO; MIKENY capital and technology in large-scale EDU activities, the State may secure the
JONG B. LUMAYONG, Represented by His Father MIGUEL M. help of foreign companies in all relevant matters -- especially financial and
LUMAYONG; RENE T. MIGUEL, Represented by His Mother EDITHA T. technical assistance -- provided that, at all times, the State maintains its right
MIGUEL; ALDEMAR L. SAL, Represented by His Father DANNY M. SAL; of full control. The foreign assistor or contractor assumes all financial, technical
DAISY RECARSE, Represented by Her Mother LYDIA S. SANTOS; and entrepreneurial risks in the EDU activities; hence, it may be given
EDWARD M. EMUY; ALAN P. MAMPARAIR; MARIO L. MANGCAL; reasonable management, operational, marketing, audit and other prerogatives
ALDEN S. TUSAN; AMPARO S. YAP; VIRGILIO CULAR; MARVIC M.V.F. to protect its investments and to enable the business to succeed.
LEONEN; JULIA REGINA CULAR, GIAN CARLO CULAR, VIRGILIO
CULAR JR., Represented by Their Father VIRGILIO CULAR; PAUL Full control is not anathematic to day-to-day management by the
ANTONIO P. VILLAMOR, Represented by His Parents JOSE VILLAMOR contractor, provided that the State retains the power to direct overall strategy;
and ELIZABETH PUA-VILLAMOR; ANA GININA R. TALJA, Represented and to set aside, reverse or modify plans and actions of the contractor. The
by Her Father MARIO JOSE B. TALJA; SHARMAINE R. CUNANAN, idea of full control is similar to that which is exercised by the board of directors
Represented by Her Father ALFREDO M. CUNANAN; ANTONIO JOSE A. of a private corporation: the performance of managerial, operational, financial,
VITUG III, Represented by His Mother ANNALIZA A. VITUG, LEAN D. marketing and other functions may be delegated to subordinate officers or
NARVADEZ, Represented by His Father MANUEL E. NARVADEZ JR.; given to contractual entities, but the board retains full residual control of the
ROSERIO MARALAG LINGATING, Represented by Her Father RIO business.
OLIMPIO A. LINGATING; MARIO JOSE B. TALJA; DAVID E. DE VERA;
MARIA MILAGROS L. SAN JOSE; Sr. SUSAN O. BOLANIO, OND; Who or what organ of government actually exercises this power of control
on behalf of the State? The Constitution is crystal clear: the President. Indeed,
LOLITA G. DEMONTEVERDE; BENJIE L. NEQUINTO;[1] ROSE LILIA S.
ROMANO; ROBERTO S. VERZOLA; EDUARDO AURELIO C. REYES; the Chief Executive is the official constitutionally mandated to enter into
LEAN LOUEL A. PERIA, Represented by His Father ELPIDIO V. agreements with foreign owned corporations. On the other hand, Congress
PERIA;[2] GREEN FORUM PHILIPPINES; GREEN FORUM WESTERN may review the action of the President once it is notified of every contract
entered into in accordance with this [constitutional] provision within thirty days
VISAYAS (GF-WV); ENVIRONMENTAL LEGAL ASSISTANCE CENTER
(ELAC); KAISAHAN TUNGO SA KAUNLARAN NG KANAYUNAN AT from its execution. In contrast to this express mandate of the President and
REPORMANG PANSAKAHAN (KAISAHAN);[3] PARTNERSHIP FOR Congress in the EDU of natural resources, Article XII of the Constitution is
AGRARIAN REFORM and RURAL DEVELOPMENT SERVICES, INC. silent on the role of the judiciary. However, should the President and/or
(PARRDS); PHILIPPINE PARTNERSHIP FOR THE DEVELOPMENT OF Congress gravely abuse their discretion in this regard, the courts may -- in
HUMAN RESOURCES IN THE RURAL AREAS, INC. (PHILDHRRA); a proper case -- exercise their residual duty under Article VIII. Clearly then, the
WOMENS LEGAL BUREAU (WLB); CENTER FOR ALTERNATIVE judiciary should not inordinately interfere in the exercise of this presidential
DEVELOPMENT INITIATIVES, INC. (CADI); UPLAND DEVELOPMENT power of control over the EDU of our natural resources.
INSTITUTE (UDI); KINAIYAHAN FOUNDATION, INC.; SENTRO NG
The Constitution should be read in broad, life-giving strokes. It should not After hearing the opposing sides, the Court required the parties to submit
be used to strangulate economic growth or to serve narrow, parochial their respective Memoranda in amplification of their arguments. In a Resolution
interests. Rather, it should be construed to grant the President and Congress issued later the same day, June 29, 2004, the Court noted, inter alia, the
sufficient discretion and reasonable leeway to enable them to attract foreign Manifestation and Motion (in lieu of comment) filed by the Office of the Solicitor
investments and expertise, as well as to secure for our people and our General (OSG) on behalf of public respondents. The OSG said that it was not
posterity the blessings of prosperity and peace. interposing any objection to the Motion for Intervention filed by the Chamber
of Mines of the Philippines, Inc. (CMP) and was in fact joining and adopting
On the basis of this control standard, this Court upholds the constitutionality the latters Motion for Reconsideration.
of the Philippine Mining Law, its Implementing Rules and Regulations -- insofar
as they relate to financial and technical agreements -- as well as the subject Memoranda were accordingly filed by the intervenor as well as by
Financial and Technical Assistance Agreement (FTAA).[5] petitioners, public respondents, and private respondent, dwelling at length on
the three issues discussed below. Later, WMCP submitted its Reply
Background Memorandum, while the OSG -- in obedience to an Order of this Court -- filed
The Petition for Prohibition and Mandamus before the Court challenges a Compliance submitting copies of more FTAAs entered into by the
the constitutionality of (1) Republic Act No. [RA] 7942 (The Philippine Mining government.
Act of 1995); (2) its Implementing Rules and Regulations (DENR Three Issues Identified by the Court
Administrative Order No. [DAO] 96-40); and (3) the FTAA dated March 30,
1995,[6] executed by the government with Western Mining Corporation During the Oral Argument, the Court identified the three issues to be
(Philippines), Inc. (WMCP).[7] resolved in the present controversy, as follows:
On January 27, 2004, the Court en banc promulgated its Decision[8] granting 1. Has the case been rendered moot by the sale of WMC shares in
the Petition and declaring the unconstitutionality of certain provisions of RA 7942, WMCP to Sagittarius (60 percent of Sagittarius equity is owned by Filipinos
DAO 96-40, as well as of the entire FTAA executed between the government and and/or Filipino-owned corporations while 40 percent is owned by Indophil
WMCP, mainly on the finding that FTAAs are service contracts prohibited by the Resources NL, an Australian company) and by the subsequent transfer and
1987 Constitution. registration of the FTAA from WMCP to Sagittarius?
The Decision struck down the subject FTAA for being similar to service 2. Assuming that the case has been rendered moot, would it still be proper
contracts,[9] which, though permitted under the 1973 Constitution,[10] were to resolve the constitutionality of the assailed provisions of the Mining Law,
subsequently denounced for being antithetical to the principle of sovereignty over DAO 96-40 and the WMCP FTAA?
our natural resources, because they allowed foreign control over the exploitation of
our natural resources, to the prejudice of the Filipino nation. 3. What is the proper interpretation of the phrase Agreements Involving
Either Technical or Financial Assistance contained in paragraph 4 of Section
The Decision quoted several legal scholars and authors who had 2 of Article XII of the Constitution?
criticized service contracts for, inter alia, vesting in the foreign
contractor exclusive management and control of the enterprise, including Should the Motion for Reconsideration be Granted?
operation of the field in the event petroleum was discovered; control of Respondents and intervenors Motions for Reconsideration should be
production, expansion and development; nearly unfettered control over the granted, for the reasons discussed below. The foregoing three issues
disposition and sale of the products discovered/extracted; effective ownership identified by the Court shall now be taken upseriatim.
of the natural resource at the point of extraction; and beneficial ownership of
our economic resources. According to the Decision, the 1987 Constitution First Issue: Mootness
(Section 2 of Article XII) effectively banned such service contracts.
In declaring unconstitutional certain provisions of RA 7942, DAO 96-40,
Subsequently, respondents filed separate Motions for Reconsideration. and the WMCP FTAA, the majority Decision agreed with petitioners
In a Resolution dated March 9, 2004, the Court required petitioners to contention that the subject FTAA had been executed in violation of Section 2
comment thereon. In the Resolution of June 8, 2004, it set the case for Oral of Article XII of the 1987 Constitution. According to petitioners, the FTAAs
Argument on June 29, 2004. entered into by the government with foreign-owned corporations are limited
by the fourth paragraph of the said provision to agreements involving only
technical or financial assistance for large-scale exploration, development and
utilization of minerals, petroleum and other mineral oils. Furthermore, the take up the alleged invalidity of RA 7942 and DAO 96-40 later on in the
foreign contractor is allegedly permitted by the FTAA in question to fully discussion of the third issue.
manage and control the mining operations and, therefore, to acquire
beneficial ownership of our mineral resources. No Transgression of the Constitution by the Transfer of the WMCP
Shares
The Decision merely shrugged off the Manifestation by WMPC informing
the Court (1) that on January 23, 2001, WMC had sold all its shares in WMCP Petitioners claim, first, that the alleged invalidity of the transfer of the
to Sagittarius Mines, Inc., 60 percent of whose equity was held by Filipinos; WMCP shares to Sagittarius violates the fourth paragraph of Section 2 of
and (2) that the assailed FTAA had likewise been transferred from WMCP to Article XII of the Constitution; second,that it is contrary to the provisions of the
Sagittarius.[11] The ponencia declared that the instant case hadnot been WMCP FTAA itself; and third, that the sale of the shares is suspect and should
rendered moot by the transfer and registration of the FTAA to a Filipino-owned therefore be the subject of a case in which its validity may properly be litigated.
corporation, and that the validity of the said transfer remained in dispute and On the first ground, petitioners assert that paragraph 4 of Section 2 of
awaited final judicial determination.[12] Patently therefore, the Decision is Article XII permits the government to enter into FTAAs only with foreign-owned
anchored on the assumption that WMCP had remained a foreign corporation. corporations. Petitioners insist that the first paragraph of this constitutional
The crux of this issue of mootness is the fact that WMCP, at the time it provision limits the participation of Filipino corporations in the exploration,
entered into the FTAA, happened to be wholly owned by WMC Resources development and utilization of natural resources to only three species of
International Pty., Ltd. (WMC), which in turn was a wholly owned subsidiary of contracts -- production sharing, co-production and joint venture -- to the
Western Mining Corporation Holdings Ltd., a publicly listed major Australian exclusion of all other arrangements or variations thereof, and the WMCP FTAA
mining and exploration company. may therefore not be validly assumed and implemented by Sagittarius. In
short, petitioners claim that a Filipino corporation is not allowed by the
The nullity of the FTAA was obviously premised upon the contractor being Constitution to enter into an FTAA with the government.
a foreign corporation. Had the FTAA been originally issued to a Filipino-owned
corporation, there would have been no constitutionality issue to speak of. Upon However, a textual analysis of the first paragraph of Section 2 of Article
the other hand, the conveyance of the WMCP FTAA to a Filipino corporation XII does not support petitioners argument. The pertinent part of the said
can be likened to the sale of land to a foreigner who subsequently acquires provision states: Sec. 2. x x x The exploration, development and utilization of
Filipino citizenship, or who later resells the same land to a Filipino citizen. The natural resources shall be under the full control and supervision of the State.
conveyance would be validated, as the property in question would no longer The State may directly undertake such activities, or it may enter into co-
be owned by a disqualified vendee. production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose
And, inasmuch as the FTAA is to be implemented now by a Filipino capital is owned by such citizens. x x x. Nowhere in the provision is there any
corporation, it is no longer possible for the Court to declare it unconstitutional. express limitation or restriction insofar as arrangements other than the three
The case pending in the Court of Appeals is a dispute between two Filipino aforementioned contractual schemes are concerned.
companies (Sagittarius and Lepanto), both claiming the right to purchase the
foreign shares in WMCP. So, regardless of which side eventually wins, the Neither can one reasonably discern any implied stricture to that effect.
FTAA would still be in the hands of a qualified Filipino company. Considering Besides, there is no basis to believe that the framers of the Constitution, a
that there is no longer any justiciable controversy, the plea to nullify the Mining majority of whom were obviously concerned with furthering the development
Law has become a virtual petition for declaratory relief, over which this Court and utilization of the countrys natural resources, could have wanted to restrict
has no original jurisdiction. Filipino participation in that area. This point is clear, especially in the light of
the overarching constitutional principle of giving preference and priority to
In their Final Memorandum, however, petitioners argue that the case has Filipinos and Filipino corporations in the development of our natural resources.
not become moot, considering the invalidity of the alleged sale of the shares
in WMCP from WMC to Sagittarius, and of the transfer of the FTAA from Besides, even assuming (purely for arguments sake) that a constitutional
WMCP to Sagittarius, resulting in the change of contractor in the FTAA in limitation barring Filipino corporations from holding and implementing an FTAA
question. And even assuming that the said transfers were valid, there still actually exists, nevertheless, such provision would apply only to the transfer
exists an actual case predicated on the invalidity of RA 7942 and its of the FTAA to Sagittarius, but definitely not to the sale of WMCs equity stake
Implementing Rules and Regulations (DAO 96-40). Presently, we shall discuss in WMCP to Sagittarius. Otherwise, an unreasonable curtailment of property
petitioners objections to the transfer of both the shares and the FTAA. We shall rights without due process of law would ensue. Petitioners argument must
therefore fail.
FTAA Not Intended Solely for Foreign Corporation Petitioners also question the sale price and the financial capacity of the
transferee. According to the Deed of Absolute Sale dated January 23, 2001,
Equally barren of merit is the second ground cited by petitioners -- that executed between WMC and Sagittarius, the price of the WMCP shares was
the FTAA was intended to apply solely to a foreign corporation, as can fixed at US$9,875,000, equivalent to P553 million at an exchange rate of 56:1.
allegedly be seen from the provisions therein. They manage to cite only one Sagittarius had an authorized capital stock of P250 million and a paid up
WMCP FTAA provision that can be regarded as clearly intended to apply only capital of P60 million. Therefore, at the time of approval of the sale by the
to a foreign contractor: Section 12, which provides for international commercial DENR, the debt-to-equity ratio of the transferee was over 9:1 -- hardly ideal for
arbitration under the auspices of the International Chamber of Commerce, an FTAA contractor, according to petitioners.
after local remedies are exhausted. This provision, however, does not
necessarily imply that the WMCP FTAA cannot be transferred to and assumed However, private respondents counter that the Deed of Sale specifically
by a Filipino corporation like Sagittarius, in which event the said provision provides that the payment of the purchase price would take place only after
should simply be disregarded as a superfluity. Sagittarius commencement of commercial production from mining operations,
if at all. Consequently, under the circumstances, we believe it would not be
No Need for a Separate Litigation of the Sale of Shares reasonable to conclude, as petitioners did, that the transferees high debt-to-
Petitioners claim as third ground the suspicious sale of shares from WMC equity ratio per se necessarily carried negative implications for the enterprise;
to Sagittarius; hence, the need to litigate it in a separate case. Section 40 of and it would certainly be improper to invalidate the sale on that basis, as
RA 7942 (the Mining Law) allegedly requires the Presidents prior approval of petitioners propose.
a transfer. FTAA Not Void, thus Transferrable
A re-reading of the said provision, however, leads to a different To bolster further their claim that the case is not moot, petitioners insist
conclusion. Sec. 40. Assignment/Transfer -- A financial or technical assistance that the FTAA is void and, hence cannot be transferred; and that its transfer
agreement may be assigned or transferred, in whole or in part, to a qualified does not operate to cure the constitutional infirmity that is inherent in it; neither
person subject to the prior approval of the President: Provided, That the will a change in the circumstances of one of the parties serve to ratify the void
President shall notify Congress of every financial or technical assistance contract.
agreement assigned or converted in accordance with this provision within thirty
(30) days from the date of the approval thereof. While the discussion in their Final Memorandum was skimpy, petitioners
in their Comment (on the MR) did ratiocinate that this Court had declared the
Section 40 expressly applies to the assignment or transfer of the FTAA, FTAA to be void because, at the time it was executed with WMCP, the latter
not to the sale and transfer of shares of stock in WMCP. Moreover, when the was a fully foreign-owned corporation, in which the former vested full control
transferee of an FTAA is another foreign corporation, there is a logical and management with respect to the exploration, development and utilization
application of the requirement of prior approval by the President of the of mineral resources, contrary to the provisions of paragraph 4 of Section 2 of
Republic and notification to Congress in the event of assignment or transfer of Article XII of the Constitution. And since the FTAA was per se void, no valid
an FTAA. In this situation, such approval and notification are appropriate right could be transferred; neither could it be ratified, so petitioners conclude.
safeguards, considering that the new contractor is the subject of a foreign
government. Petitioners have assumed as fact that which has yet to be
established. First and foremost, the Decision of this Court declaring the FTAA
On the other hand, when the transferee of the FTAA happens to be void has not yet become final. That was precisely the reason the Court still
a Filipino corporation, the need for such safeguard is not critical; hence, the heard Oral Argument in this case. Second, the FTAA does not vest in the
lack of prior approval and notification may not be deemed fatal as to render foreign corporation full control and supervision over the exploration,
the transfer invalid. Besides, it is not as if approval by the President is entirely development and utilization of mineral resources, to the exclusion of the
absent in this instance. As pointed out by private respondent in its government. This point will be dealt with in greater detail below; but for now,
Memorandum,[13] the issue of approval is the subject of one of the cases suffice it to say that a perusal of the FTAA provisions will prove that the
brought by Lepanto against Sagittarius in GR No. 162331. That case involved government has effective overall direction and control of the mining
the review of the Decision of the Court of Appeals dated November 21, 2003 operations, including marketing and product pricing, and that the contractors
in CA-GR SP No. 74161, which affirmed the DENR Order dated December 31, work programs and budgets are subject to its review and approval or
2001 and the Decision of the Office of the President dated July 23, 2002, disapproval.
both approving the assignment of the WMCP FTAA to Sagittarius.
As will be detailed later on, the government does not have to micro- More accurately speaking, the present situation is one degree better than
manage the mining operations and dip its hands into the day-to-day that obtaining in Halili, in which the original sale to a non-Filipino was clearly
management of the enterprise in order to be considered as having overall and indisputably violative of the constitutional prohibition and thus void ab
control and direction. Besides, for practical and pragmatic reasons, there is a initio. In the present case, the issuance/grant of the subject FTAA to the then
need for government agencies to delegate certain aspects of the management foreign-owned WMCP was not illegal, void or unconstitutional at the time. The
work to the contractor. Thus the basis for declaring the FTAA void still has to matter had to be brought to court, precisely for adjudication as to whether the
be revisited, reexamined and reconsidered. FTAA and the Mining Law had indeed violated the Constitution. Since, up to
this point, the decision of this Court declaring the FTAA void has yet to become
Petitioners sniff at the citation of Chavez v. Public Estates final, to all intents and purposes, the FTAA must be deemed valid and
Authority,[14] and Halili v. CA,[15] claiming that the doctrines in these cases are constitutional.[17]
wholly inapplicable to the instant case.
At bottom, we find completely outlandish petitioners contention that an
Chavez clearly teaches: Thus, the Court has ruled consistently that where FTAA could be entered into by the government only with a foreign
a Filipino citizen sells land to an alien who later sells the land to a Filipino, the corporation, never with a Filipino enterprise. Indeed, the nationalistic
invalidity of the first transfer is corrected by the subsequent sale to a citizen. provisions of the Constitution are all anchored on the protection of Filipino
Similarly, where the alien who buys the land subsequently acquires Philippine interests. How petitioners can now argue that foreigners have the exclusive
citizenship, the sale is validated since the purpose of the constitutional ban to right to FTAAs totally overturns the entire basis of the Petition -- preference for
limit land ownership to Filipinos has been achieved. In short, the law the Filipino in the exploration, development and utilization of our natural
disregards the constitutional disqualification of the buyer to hold land if the land resources. It does not take deep knowledge of law and logic to understand that
is subsequently transferred to a qualified party, or the buyer himself becomes what the Constitution grants to foreigners should be equally available to
a qualified party.[16] Filipinos.
In their Comment, petitioners contend that in Chavez and Halili, the object Second Issue: Whether the Court Can Still Decide the Case, even
of the transfer (the land) was not what was assailed for alleged Assuming It Is Moot
unconstitutionality. Rather, it was the transaction that was assailed; hence
subsequent compliance with constitutional provisions would cure its infirmity. All the protagonists are in agreement that the Court has jurisdiction to
In contrast, in the instant case it is the FTAA itself, the object of the transfer, decide this controversy, even assuming it to be moot.
that is being assailed as invalid and unconstitutional. So, petitioners claim that
the subsequent transfer of a void FTAA to a Filipino corporation would not cure Petitioners stress the following points. First, while a case becomes moot
the defect. and academic when there is no more actual controversy between the parties
or no useful purpose can be served in passing upon the merits,[18] what is at
Petitioners are confusing themselves. The present Petition has been filed, issue in the instant case is not only the validity of the WMCP FTAA, but also
precisely because the grantee of the FTAA was a wholly owned subsidiary of the constitutionality of RA 7942 and its Implementing Rules and
a foreign corporation. It cannot be gainsaid that anyone would have asserted Regulations. Second, the acts of private respondent cannot operate to cure
that the same FTAA was void if it had at the outset been issued to a Filipino the law of its alleged unconstitutionality or to divest this Court of its jurisdiction
corporation. The FTAA, therefore, is not per se defective or unconstitutional. It to decide. Third, the Constitution imposes upon the Supreme Court the duty to
was questioned only because it had been issued to an allegedly non-qualified, declare invalid any law that offends the Constitution.
foreign-owned corporation.
Petitioners also argue that no amendatory laws have been passed to
We believe that this case is clearly analogous to Halili, in which the land make the Mining Act of 1995 conform to constitutional strictures (assuming
acquired by a non-Filipino was re-conveyed to a qualified vendee and the that, at present, it does not); that public respondents will continue to implement
original transaction was thereby cured. Paraphrasing Halili, the same rationale and enforce the statute until this Court rules otherwise; and that the said law
applies to the instant case: assuming arguendo the invalidity of its prior grant continues to be the source of legal authority in accepting, processing and
to a foreign corporation, the disputed FTAA -- being now held by a Filipino approving numerous applications for mining rights.
corporation -- can no longer be assailed; the objective of the constitutional
provision -- to keep the exploration, development and utilization of our natural Indeed, it appears that as of June 30, 2002, some 43 FTAA applications
resources in Filipino hands -- has been served. had been filed with the Mines and Geosciences Bureau (MGB), with an
aggregate area of 2,064,908.65 hectares -- spread over Luzon, the Visayas
and Mindanao[19] -- applied for. It may be a bit far-fetched to assert, as
petitioners do, that each and every FTAA that was entered into under the Indeed, this CMP entry brings to fore that the real issue in this case is
provisions of the Mining Act invites potential litigation for as long as the whether paragraph 4 of Section 2 of Article XII of the Constitution is
constitutional issues are not resolved with finality. Nevertheless, we must contravened by RA 7942 and DAO 96-40, not whether it was violated by
concede that there exists the distinct possibility that one or more of the future specific acts implementing RA 7942 and DAO 96-40. [W]hen an act of the
FTAAs will be the subject of yet another suit grounded on constitutional issues. legislative department is seriously alleged to have infringed the Constitution,
settling the controversy becomes the duty of this Court. By the mere enactment
But of equal if not greater significance is the cloud of uncertainty hanging of the questioned law or the approval of the challenged action, the dispute is
over the mining industry, which is even now scaring away foreign investments. said to have ripened into a judicial controversy even without any other overt
Attesting to this climate of anxiety is the fact that the Chamber of Mines of the act.[28] This ruling can be traced from Taada v. Angara,[29] in which the Court
Philippines saw the urgent need to intervene in the case and to present its said:
position during the Oral Argument; and that Secretary General Romulo Neri of
the National Economic Development Authority (NEDA) requested this Court to
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes
allow him to speak, during that Oral Argument, on the economic consequences
the Constitution, the petition no doubt raises a justiciable controversy. Where an
of the Decision of January 27, 2004.[20]
action of the legislative branch is seriously alleged to have infringed the
We are convinced. We now agree that the Court must recognize the Constitution, it becomes not only the right but in fact the duty of the judiciary to
exceptional character of the situation and the paramount public interest settle the dispute.
involved, as well as the necessity for a ruling to put an end to the uncertainties
plaguing the mining industry and the affected communities as a result of xxxxxxxxx
doubts cast upon the constitutionality and validity of the Mining Act, the subject
FTAA and future FTAAs, and the need to avert a multiplicity of As this Court has repeatedly and firmly emphasized in many cases, it will not shirk,
suits. Paraphrasing Gonzales v. Commission on Elections,[21] it is evident that digress from or abandon its sacred duty and authority to uphold the Constitution in
strong reasons of public policy demand that the constitutionality issue be matters that involve grave abuse of discretion brought before it in appropriate cases,
resolved now.[22] committed by any officer, agency, instrumentality or department of the
In further support of the immediate resolution of the constitutionality issue, government.[30]
public respondents cite Acop v. Guingona,[23] to the effect that the courts will
decide a question -- otherwise moot and academic -- if it is capable of Additionally, the entry of CMP into this case has also effectively
repetition, yet evading review.[24] Public respondents ask the Court to avoid a forestalled any possible objections arising from the standing or legal interest
situation in which the constitutionality issue may again arise with respect to of the original parties.
another FTAA, the resolution of which may not be achieved until after it has
become too late for our mining industry to grow out of its infancy. They also For all the foregoing reasons, we believe that the Court should proceed
recall Salonga v. Cruz Pao,[25] in which this Court declared that (t)he Court also to a resolution of the constitutional issues in this case.
has the duty to formulate guiding and controlling constitutional principles, Third Issue: The Proper Interpretation of the Constitutional Phrase
precepts, doctrines or rules. It has the symbolic function of educating the Agreements Involving Either Technical or Financial Assistance
bench and bar on the extent of protection given by constitutional guarantees.
x x x. The constitutional provision at the nucleus of the controversy is paragraph
4 of Section 2 of Article XII of the 1987 Constitution. In order to appreciate its
The mootness of the case in relation to the WMCP FTAA led the context, Section 2 is reproduced in full:
undersigned ponente to state in his dissent to the Decision that there was no
more justiciable controversy and the plea to nullify the Mining Law has become Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
a virtual petition for declaratory relief.[26] The entry of the Chamber of Mines of mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora
the Philippines, Inc., however, has put into focus the seriousness of the
and fauna, and other natural resources are owned by the State. With the exception of
allegations of unconstitutionality of RA 7942 and DAO 96-40 which converts
agricultural lands, all other natural resources shall not be alienated. The
the case to one for prohibition[27] in the enforcement of the said law and
exploration, development and utilization of natural resources shall be under the full
regulations. 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 First, verba legis, that is, wherever possible, the words used in the Constitution must
whose capital is owned by such citizens. Such agreements may be for a period not be given their ordinary meaning except where technical terms are employed. x x x.
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 xxxxxxxxx
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.
Second, where there is ambiguity, ratio legis est anima. The words of the
Constitution should be interpreted in accordance with the intent of its framers. x x x.
The State shall protect the nations marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and enjoyment
xxxxxxxxx
exclusively to Filipino citizens.
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a
The Congress may, by law, allow small-scale utilization of natural resources by whole.[34]
Filipino citizens, as well as cooperative fish farming, with priority to subsistence
fishermen and fish-workers in rivers, lakes, bays and lagoons.
For ease of reference and in consonance with verba legis, we reconstruct
and stratify the aforequoted Section 2 as follows:
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 1. All natural resources are owned by the State. Except for agricultural lands, natural
general terms and conditions provided by law, based on real contributions to the resources cannot be alienated by the State.
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. 2. The exploration, development and utilization (EDU) of natural resources shall be
under the full control and supervision of the State.
The President shall notify the Congress of every contract entered into in accordance
with this provision, within thirty days from its execution.[31] 3. The State may undertake these EDU activities through either of the following:
No Restriction of Meaning by a Verba Legis Interpretation (a) By itself directly and solely
To interpret the foregoing provision, petitioners adamantly assert that the (b) By (i) co-production; (ii) joint venture; or (iii) production sharing agreements
language of the Constitution should prevail; that the primary method of with Filipino citizens or corporations, at least 60 percent of the capital of which is
interpreting it is to seek the ordinary meaning of the words used in its owned by such citizens
provisions. They rely on rulings of this Court, such as the following:
4. Small-scale utilization of natural resources may be allowed by law in favor of
The fundamental principle in constitutional construction however is that the primary Filipino citizens.
source from which to ascertain constitutional intent or purpose is the language of the
provision itself. The presumption is that the words in which the constitutional 5. For large-scale EDU of minerals, petroleum and other mineral oils, the President
provisions are couched express the objective sought to be attained. In other may enter into agreements with foreign-owned corporations involving either
words, verba legis prevails. Only when the meaning of the words used is unclear and technical or financial assistance according to the general terms and conditions
equivocal should resort be made to extraneous aids of construction and provided by law x x x.
interpretation, such as the proceedings of the Constitutional Commission or
Convention to shed light on and ascertain the true intent or purpose of the provision Note that in all the three foregoing mining activities -- exploration,
being construed.[32] development and utilization -- the State may undertake such EDU activities by
itself or in tandem with Filipinos or Filipino corporations, except in two
Very recently, in Francisco v. The House of Representatives,[33] this Court instances: first, in small-scale utilization of natural resources, which Filipinos
indeed had the occasion to reiterate the well-settled principles of constitutional may be allowed by law to undertake; and second, in large-scale EDU of
construction: minerals, petroleum and mineral oils, which may be undertaken by the State
via agreements with foreign-owned corporations involving either technical or to begin with. In this case, the limitation would be very clear and no further
financial assistance as provided by law. debate would ensue.
Petitioners claim that the phrase agreements x x x involving either In contrast, the use of the word involving signifies the possibility of the
technical or financial assistance simply means technical assistance or financial inclusion of other forms of assistance or activities having to do with,
assistance agreements, nothing more and nothing else. They insist that there otherwise related to or compatible with financial or technical assistance. The
is no ambiguity in the phrase, and that a plain reading of paragraph 4 quoted word involving as used in this context has three connotations that can be
above leads to the inescapable conclusion that what a foreign-owned differentiated thus: one, the sense of concerning, having to do with, or
corporation may enter into with the government is merely an agreement affecting; two, entailing, requiring, implying or necessitating; and three,
for either financial or technical assistance only, for the large-scale exploration, including, containing or comprising.[38]
development and utilization of minerals, petroleum and other mineral oils; such
a limitation, they argue, excludes foreign management and operation of a Plainly, none of the three connotations convey a sense of exclusivity.
mining enterprise.[35] Moreover, the word involving, when understood in the sense of including, as
in including technical or financial assistance, necessarily implies that there
This restrictive interpretation, petitioners believe, is in line with the general are activities other than those that are being included. In other words, if an
policy enunciated by the Constitution reserving to Filipino citizens and agreement includes technical or financial assistance, there is apart from such
corporations the use and enjoyment of the countrys natural resources. They assistance -- something else already in, and covered or may be covered by,
maintain that this Courts Decision[36] of January 27, 2004 correctly declared the said agreement.
the WMCP FTAA, along with pertinent provisions of RA 7942, void for allowing
a foreign contractor to have direct and exclusive management of a mining In short, it allows for the possibility that matters, other than those explicitly
enterprise. Allowing such a privilege not only runs counter to the full control mentioned, could be made part of the agreement. Thus, we are now led to the
and supervision that the State is constitutionally mandated to exercise over conclusion that the use of the word involving implies that these agreements
the exploration, development and utilization of the countrys natural resources; with foreign corporations are not limited to mere financial or technical
doing so also vests in the foreign company beneficial ownership of our mineral assistance. The difference in sense becomes very apparent when we
resources. It will be recalled that the Decision of January 27, 2004 zeroed in juxtapose agreements for technical or financial assistance against
on management or other forms of assistance or other activities associated with agreements including technical or financial assistance. This much is
the service contracts of the martial law regime, since the management or unalterably clear in a verba legis approach.
operation of mining activities by foreign contractors, which is the primary Second, if the real intention of the drafters was to confine foreign
feature of service contracts, was precisely the evil that the drafters of the 1987 corporations to financial or technical assistance and nothing more, their
Constitution sought to eradicate. language would have certainly been sounmistakably restrictive and
On the other hand, the intervenor[37] and public respondents argue that stringent as to leave no doubt in anyones mind about their true intent. For
the FTAA allowed by paragraph 4 is not merely an agreement for supplying example, they would have used the sentence foreign corporations
limited and specific financial or technical services to the State. Rather, such are absolutely prohibited from involvement in the management or operation
FTAA is a comprehensive agreement for the foreign-owned of mining or similar ventures or words of similar import. A search for such
corporations integrated exploration, development and utilization of mineral, stringent wording yields negative results. Thus, we come to the inevitable
petroleum or other mineral oils on a large-scale basis. The agreement, conclusion that there was a conscious and deliberate decision to avoid
therefore, authorizes the foreign contractors rendition of a whole range of the use of restrictive wording that bespeaks an intent not to use the
integrated and comprehensive services, ranging from the discovery to the expression agreements x x x involving either technical or financial
development, utilization and production of minerals or petroleum products. assistance in an exclusionary and limiting manner.
We do not see how applying a strictly literal or verba legis interpretation Deletion of Service Contracts to Avoid Pitfalls of Previous
of paragraph 4 could inexorably lead to the conclusions arrived at in Constitutions, Not to Ban Service Contracts Per Se
the ponencia. First, the drafters choice of words -- their use of the Third, we do not see how a verba legis approach leads to the conclusion
phrase agreements x x x involving either technical or financial assistance -- that the management or operation of mining activities by foreign contractors,
does not indicate the intent to exclude other modes of assistance. The drafters which is the primary feature of service contracts, was precisely the evil that the
opted to use involving when they could have simply drafters of the 1987 Constitution sought to eradicate. Nowhere in the above-
said agreements for financial or technical assistance, if that was their intention quoted Section can be discerned the objective to keep out of foreign hands
the management or operation of mining activities or the plan to eradicate provision in question was intended to refer to agreements other than
service contracts as these were understood in the 1973 Constitution. Still, those for mere financial or technical assistance.
petitioners maintain that the deletion or omission from the 1987 Constitution of
the term service contracts found in the 1973 Constitution sufficiently proves In like manner, there would be no need to require the President of the
the drafters intent to exclude foreigners from the management of the affected Republic to report to Congress, if only financial or technical assistance
enterprises. agreements are involved. Such agreements are in the nature of foreign loans
that -- pursuant to Section 20 of Article VII[39] of the 1987 Constitution -- the
To our mind, however, such intent cannot be definitively and conclusively President may contract or guarantee, merely with the prior concurrence of the
established from the mere failure to carry the same expression or term over to Monetary Board. In turn, the Board is required to report to Congress within
the new Constitution, absent a more specific, explicit and unequivocal thirty days from the end of every quarter of the calendar year, not thirty days
statement to that effect. What petitioners seek (a complete ban on foreign after the agreement is entered into.
participation in the management of mining operations, as previously allowed
by the earlier Constitutions) is nothing short of bringing about a momentous And if paragraph 4 permits only agreements for loans and other forms of
sea change in the economic and developmental policies; and the financial, or technical assistance, what is the point of requiring that they
fundamentally capitalist, free-enterprise philosophy of our government. We be based on real contributions to the economic growth and general welfare of
cannot imagine such a radical shift being undertaken by our government, to the country? For instance, how is one to measure and assess the real
the great prejudice of the mining sector in particular and our economy in contributions to the economic growth and general welfare of the country that
general, merely on the basis of the omission of the terms service contract from may ensue from a foreign-currency loan agreement or a technical-assistance
or the failure to carry them over to the new Constitution. There has to be a agreement for, say, the refurbishing of an existing power generating plant for
much more definite and even unarguable basis for such a drastic reversal of a mining operation somewhere in Mindanao? Such a criterion would make
policies. more sense when applied to a major business investment in a principal sector
of the industry.
Fourth, a literal and restrictive interpretation of paragraph 4, such as that
proposed by petitioners, suffers from certain internal logical inconsistencies The conclusion is clear and inescapable -- a verba legis construction
that generate ambiguities in the understanding of the provision. As the shows that paragraph 4 is not to be understood as one limited only to foreign
intervenor pointed out, there has never been any constitutional or statutory loans (or other forms of financial support) and to technical assistance. There
provision that reserved to Filipino citizens or corporations, at least 60 percent is definitely more to it than that. These are provisions permitting
of which is Filipino-owned, the rendition of financial or technical assistance to participation by foreign companies; requiring the Presidents report to
companies engaged in mining or the development of any other natural Congress; and using, as yardstick, contributions based on economic
resource. The taking out of foreign-currency or peso-denominated loans or any growth and general welfare. These were neither accidentally inserted
other kind of financial assistance, as well as the rendition of technical into the Constitution nor carelessly cobbled together by the drafters in
assistance -- whether to the State or to any other entity in the Philippines -- lip service to shallow nationalism. The provisions patently have significance
has never been restricted in favor of Filipino citizens or corporations having a and usefulness in a context that allows agreements with foreign companies to
certain minimum percentage of Filipino equity. Such a restriction would include more than mere financial or technical assistance.
certainly be preposterous and unnecessary. As a matter of fact, financial, and Fifth, it is argued that Section 2 of Article XII authorizes nothing more than
even technical assistance, regardless of the nationality of its source, would be a rendition of specific and limited financial service or technical assistance by a
welcomed in the mining industry anytime with open arms, on account of the foreign company. This argument begs the question To whom or for whom
dearth of local capital and the need to continually update technological know- would it be rendered? or Who is being assisted? If the answer is The State,
how and improve technical skills. then it necessarily implies that the State itself is the
There was therefore no need for a constitutional provision specifically onedirectly and solely undertaking the large-scale exploration, development
allowing foreign-owned corporations to render financial or technical and utilization of a mineral resource, so it follows that the State must itself bear
assistance, whether in respect of mining or some other resource development the liability and cost of repaying the financing sourced from the foreign lender
or commercial activity in the Philippines. The last point needs to be and/or of paying compensation to the foreign entity rendering technical
emphasized: if merely financial or technical assistance agreements are assistance.
allowed, there would be no need to limit them to large-scale mining However, it is of common knowledge, and of judicial notice as well, that
operations, as there would be far greater need for them in the smaller- the government is and has for many many years been financially strapped, to
scale mining activities (and even in non-mining areas). Obviously, the
the point that even the most essential services have suffered serious venture. They would demand the appointment of their own men as, for
curtailments -- education and health care, for instance, not to mention judicial example, operations managers, technical experts, quality control heads,
services -- have had to make do with inadequate budgetary allocations. Thus, internal auditors or comptrollers. Furthermore, they would probably require
government has had to resort to build-operate-transfer and similar seats on the Board of Directors -- all these to ensure the success of the
arrangements with the private sector, in order to get vital infrastructure projects enterprise and the repayment of the loans and other financial assistance and
built without any governmental outlay. to make certain that the funding and the technology they supply would not go
to waste. Ultimately, they would also want to protect their business reputation
The very recent brouhaha over the gargantuan fiscal crisis or budget and bottom lines.[42]
deficit merely confirms what the ordinary citizen has suspected all along. After
the reality check, one will have to admit the implausibility of a direct In short, the drafters will have to be credited with enough pragmatism and
undertaking -- by the State itself -- of large-scale exploration, development and savvy to know that these foreign entities will not enter into such agreements
utilization of minerals, petroleum and other mineral oils. Such an undertaking involving assistance without requiring arrangements for the protection of their
entails not only humongous capital requirements, but also the attendant risk of investments, gains and benefits.
never finding and developing economically viable quantities of minerals,
petroleum and other mineral oils.[40] Thus, by specifying such agreements involving assistance, the drafters
necessarily gave implied assent to everything that these agreements
It is equally difficult to imagine that such a provision restricting foreign necessarily entailed; or that could reasonably be deemed necessary to make
companies to the rendition of only financial or technical assistance to the them tenable and effective, including management authority with respect to
government was deliberately crafted by the drafters of the Constitution, who the day-to-day operations of the enterprise and measures for the protection of
were all well aware of the capital-intensive and technology-oriented nature of the interests of the foreign corporation, PROVIDED THAT Philippine
large-scale mineral or petroleum extraction and the countrys deficiency in sovereignty over natural resources and full control over the enterprise
precisely those areas.[41] To say so would be tantamount to asserting that the undertaking the EDU activities remain firmly in the State.
provision was purposely designed to ladle the large-scale development and
utilization of mineral, petroleum and related resources with impossible Petitioners Theory Deflated by the Absence of Closing-Out Rules
conditions; and to remain forever and permanently reserved for future or Guidelines
generations of Filipinos. Seventh and final point regarding the plain-language approach, one of the
A More Reasonable Look at the Charters Plain Language practical difficulties that results from it is the fact that there is nothing by way
of transitory provisions that would serve to confirm the theory that the omission
Sixth, we shall now look closer at the plain language of the Charter and of the term service contract from the 1987 Constitution signaled the demise of
examining the logical inferences. The drafters chose to emphasize and service contracts.
highlight agreements x x x involving either technical or financial assistance in
relation to foreign corporations participation in large-scale EDU. The inclusion The framers knew at the time they were deliberating that there were
of this clause on technical or financial assistance recognizes the fact that various service contracts extant and in force and effect, including those in the
foreign business entities and multinational corporations are the ones with the petroleum industry. Many of these service contracts were long-term (25 years)
resources and know-how to provide technical and/or financial assistance of and had several more years to run. If they had meant to ban service contracts
the magnitude and type required for large-scale exploration, development and altogether, they would have had to provide for the termination or
utilization of these resources. pretermination of the existing contracts. Accordingly, they would have supplied
the specifics and the when and how of effecting the extinguishment of these
The drafters -- whose ranks included many academicians, economists, existing contracts (or at least the mechanics for determining them); and of
businessmen, lawyers, politicians and government officials -- were not putting in place the means to address the just claims of the contractors for
unfamiliar with the practices of foreign corporations and multinationals. compensation for their investments, lost opportunities, and so on, if not for the
recovery thereof.
Neither were they so nave as to believe that these entities would provide
assistance without conditionalities or some quid pro quo. Definitely, as If the framers had intended to put an end to service contracts, they would
business persons well know and as a matter of judicial notice, this matter is have at least left specific instructions to Congress to deal with these closing-
not just a question of signing a promissory note or executing a technology out issues, perhaps by way of general guidelines and a timeline within which
transfer agreement. Foreign corporations usually require that they be given a to carry them out. The following are some extant examples of such transitory
say in the management, for instance, of day-to-day operations of the joint guidelines set forth in Article XVIII of our Constitution:
Section 23. Advertising entities affected by paragraph (2), Section 11 of Article XVI approach, there is a need for recourse to the proceedings of the 1986
of this Constitution shall have five years from its ratification to comply on a Constitutional Commission. There is a need for ratio legis et anima.
graduated and proportionate basis with the minimum Filipino ownership
requirement therein. Service Contracts Not Deconstitutionalized
Pertinent portions of the deliberations of the members of the
xxxxxxxxx Constitutional Commission (ConCom) conclusively show that they
discussed agreements involving either technical or financial assistance in the
Section 25. After the expiration in 1991 of the Agreement between the Republic of the same breadth as service contracts and used the terms interchangeably. The
Philippines and the United States of America concerning military bases, foreign following exchange between Commissioner Jamir (sponsor of the provision)
military bases, troops, or facilities shall not be allowed in the Philippines except and Commissioner Suarez irrefutably proves that the agreements involving
under a treaty duly concurred in by the Senate and, when the Congress so requires, technical or financial assistance were none other than service contracts.
ratified by a majority of the votes cast by the people in a national referendum held
THE PRESIDENT. Commissioner Jamir is recognized. We are still
for that purpose, and recognized as a treaty by the other contracting State.
on Section 3.
Section 26. The authority to issue sequestration or freeze orders under Proclamation MR. JAMIR. Yes, Madam President. With respect to the second
No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall paragraph of Section 3, my amendment by substitution reads:
remain operative for not more than eighteen months after the ratification of this THE PRESIDENT MAY ENTER INTO AGREEMENTS WITH
Constitution. However, in the national interest, as certified by the President, the FOREIGN-OWNED CORPORATIONS INVOLVING EITHER
Congress may extend such period. TECHNICAL OR FINANCIAL ASSISTANCE FOR LARGE-
SCALE EXPLORATION, DEVELOPMENT AND UTILIZATION
A sequestration or freeze order shall be issued only upon showing of a prima facie OF NATURAL RESOURCES ACCORDING TO THE TERMS
case. The order and the list of the sequestered or frozen properties shall forthwith be AND CONDITIONS PROVIDED BY LAW.
registered with the proper court. For orders issued before the ratification of this MR. VILLEGAS. The Committee accepts the amendment.
Constitution, the corresponding judicial action or proceeding shall be filed within Commissioner Suarez will give the background.
six months from its ratification. For those issued after such ratification, the judicial
action or proceeding shall be commenced within six months from the issuance MR. JAMIR. Thank you.
thereof.
THE PRESIDENT. Commissioner Suarez is recognized.
The sequestration or freeze order is deemed automatically lifted if no judicial action MR. SUAREZ. Thank you, Madam President.
or proceeding is commenced as herein provided. [43]
Will Commissioner Jamir answer a few clarificatory questions?
It is inconceivable that the drafters of the Constitution would leave such MR. JAMIR. Yes, Madam President.
an important matter -- an expression of sovereignty as it were -- indefinitely
hanging in the air in a formless and ineffective state. Indeed, the complete MR. SUAREZ. This particular portion of the section has reference
to what was popularly known before as service contracts,
absence of even a general framework only serves to further deflate petitioners
theory, like a childs balloon losing its air. among other things, is that correct?
Under the circumstances, the logical inconsistencies resulting from MR. JAMIR. Yes, Madam President.
petitioners literal and purely verba legis approach to paragraph 4 of Section 2 MR. SUAREZ. As it is formulated, the President may enter
of Article XII compel a resort to other aids to interpretation. into service contracts but subject to the guidelines that may
Petitioners Posture Also Negated by Ratio Legis Et Anima be promulgated by Congress?
Thus, in order to resolve the inconsistencies, incongruities and MR. JAMIR. That is correct.
ambiguities encountered and to supply the deficiencies of the plain-language MR. SUAREZ. Therefore, that aspect of negotiation and
consummation will fall on the President, not upon Congress?
MR. JAMIR. That is also correct, Madam President. xxxxxxxxx
MR. SUAREZ. Except that all of these contracts, service or
otherwise, must be made strictly in accordance with MR. GASCON. Yes, it will be up to the body.
guidelines prescribed by Congress? I feel that the general law to be set by Congress as regard service
contract agreements which the President will enter into might
MR. JAMIR. That is also correct.
be too general or since we do not know the content yet of
MR. SUAREZ. And the Gentleman is thinking in terms of a law that such a law, it might be that certain agreements will be
uniformly covers situations of the same nature? detrimental to the interest of the Filipinos. This is in direct
contrast to my proposal which provides that there be effective
MR. JAMIR. That is 100 percent correct. constraints in the implementation of service contracts.
MR. SUAREZ. I thank the Commissioner. So instead of a general law to be passed by Congress to serve as
MR. JAMIR. Thank you very much.[44] a guideline to the President when entering into service
contract agreements, I propose that every service
The following exchange leaves no doubt that the commissioners knew contract entered into by the President would need the
exactly what they were dealing with: service contracts. concurrence of Congress, so as to assure the Filipinos of their
interests with regard to the issue in Section 3 on all lands of
THE PRESIDENT. Commissioner Gascon is recognized.
the public domain. My alternative amendment, which we will
MR. GASCON. Commissioner Jamir had proposed an amendment discuss later, reads: THAT THE PRESIDENT SHALL ENTER
with regard to special service contracts which was accepted INTO SUCH AGREEMENTS ONLY WITH THE
by the Committee. Since the Committee has accepted it, I CONCURRENCE OF TWO-THIRDS VOTE OF ALL THE
would like to ask some questions. MEMBERS OF CONGRESS SITTING SEPARATELY.
1. Sec. 8 which provides for the DENRs power of over-all supervision and (n) x x x x x x x x x
periodic review for the conservation, management, development
and proper use of the States mineral resources; (o) Such other terms and conditions consistent with the
Constitution and with this Act as the Secretary may
2. Sec. 9 which authorizes the Mines and Geosciences Bureau (MGB) deem to be for the best interest of the State and the
under the DENR to exercise direct charge in the administration and welfare of the Filipino people.
disposition of mineral resources, and empowers the MGB to
monitor the compliance by the contractor of the terms and
conditions of the mineral agreements, confiscate surety and
The foregoing provisions of Section 35 of RA 7942 are also reflected and 3. Environmental compliance certificate (Section
implemented in Section 56 (g), (h), (l), (m) and (n) of the Implementing Rules, 70, RA 7942)
DAO 96-40. 4. Approved environmental protection and
enhancement program (Section 69, RA 7942)
Moreover, RA 7942 and DAO 96-40 also provide various stipulations 5. Approval by the Sangguniang
confirming the governments control over mining enterprises: Panlalawigan/Bayan/Barangay (Section 70, RA
The contractor is to relinquish to the government those portions 7942; Section 27, RA 7160)
of the contract area not needed for mining operations and not 6. Free and prior informed consent by the
covered by any declaration of mining feasibility (Section 35-e, RA indigenous peoples concerned, including
7942; Section 60, DAO 96-40). payment of royalties through a Memorandum
of Agreement (Section 16, RA 7942; Section
The contractor must comply with the provisions pertaining to mine 59, RA 8371)
safety, health and environmental protection (Chapter XI, RA
7942; Chapters XV and XVI, DAO 96-40). The FTAA contractor is obliged to
assist in the development of its mining community, promotion of
For violation of any of its terms and conditions, government may the general welfare of its inhabitants, and development of
cancel an FTAA. (Chapter XVII, RA 7942; Chapter XXIV, DAO science and mining technology (Section 57, RA 7942).
96-40).
The FTAA contractor is obliged to
An FTAA contractor is obliged to open its books of accounts and submit reports (on quarterly, semi-annual or annual basis as the
records for inspection by the government (Section 56-m, DAO case may be; per Section 270, DAO 96-40), pertaining to the
96-40). following:
An FTAA contractor has to dispose of the minerals and by- 1. Exploration
products at the highest market price and register with the MGB a 2. Drilling
copy of the sales agreement (Section 56-n, DAO 96-40). 3. Mineral resources and reserves
4. Energy consumption
MGB is mandated to monitor the contractors compliance with the
5. Production
terms and conditions of the FTAA; and to deputize, when
6. Sales and marketing
necessary, any member or unit of the Philippine National Police,
7. Employment
the barangay or a DENR-accredited nongovernmental
8. Payment of taxes, royalties, fees and other
organization to police mining activities (Section 7-d and -f, DAO
Government Shares
96-40).
9. Mine safety, health and environment
An FTAA cannot be transferred or assigned without prior approval 10. Land use
by the President (Section 40, RA 7942; Section 66, DAO 96-40). 11. Social development
12. Explosives consumption
A mining project under an FTAA cannot proceed to the
construction/development/utilization stage, unless its Declaration An FTAA pertaining to areas within
of Mining Project Feasibility has been approved by government government reservations cannot be granted without a written
(Section 24, RA 7942). clearance from the government agencies concerned (Section
19, RA 7942; Section 54, DAO 96-40).
The Declaration of Mining Project Feasibility filed by the contractor
cannot be approved without submission of the following An FTAA contractor is required to
documents: post a financial guarantee bond in favor of the government in an
amount equivalent to its expenditures obligations for any
1. Approved mining project feasibility study particular year. This requirement is apart from the
(Section 53-d, DAO 96-40) representations and warranties of the contractor that it has
2. Approved three-year work program (Section 53- access to all the financing, managerial and technical expertise
a-4, DAO 96-40)
and technology necessary to carry out the objectives of the Overall, considering the provisions of the statute and the regulations just
FTAA (Section 35-b, -e, and -f, RA 7942). discussed, we believe that the State definitely possesses the means by which
it can have the ultimate word in the operation of the enterprise, set directions
Other reports to be submitted by the and objectives, and detect deviations and noncompliance by the contractor;
contractor, as required under DAO 96-40, are as follows: an likewise, it has the capability to enforce compliance and to impose sanctions,
environmental report on the rehabilitation of the mined-out area should the occasion therefor arise.
and/or mine waste/tailing covered area, and anti-pollution
measures undertaken (Section 35-a-2); annual reports of the In other words, the FTAA contractor is not free to do whatever it
mining operations and records of geologic accounting (Section pleases and get away with it; on the contrary, it will have to follow the
56-m); annual progress reports and final report of exploration government line if it wants to stay in the enterprise. Ineluctably then, RA
activities (Section 56-2). 7942 and DAO 96-40 vest in the government more than a sufficient
degree of control and supervision over the conduct of mining operations.
Other programs required to be
submitted by the contractor, pursuant to DAO 96-40, are the Section 3(aq) of RA 7942 Not Unconstitutional
following: a safety and health program (Section 144); an
environmental work program (Section 168); an annual An objection has been expressed that Section 3(aq)[55] of RA 7942 --
environmental protection and enhancement program (Section which allows a foreign contractor to apply for and hold an exploration permit -
171). - is unconstitutional. The reasoning is that Section 2 of Article XII of the
Constitution does not allow foreign-owned corporations to undertake mining
The foregoing gamut of requirements, regulations, restrictions and operations directly. They may act only as contractors of the State under an
limitations imposed upon the FTAA contractor by the statute and regulations FTAA; and the State, as the party directly undertaking exploitation of its natural
easily overturns petitioners contention. The setup under RA 7942 and DAO resources, must hold through the government all exploration permits and
96-40 hardly relegates the State to the role of a passive regulator dependent similar authorizations. Hence, Section 3(aq), in permitting foreign-owned
on submitted plans and reports. On the contrary, the government agencies corporations to hold exploration permits, is unconstitutional.
concerned are empowered to approve or disapprove -- hence, to influence,
direct and change -- the various work programs and the corresponding The objection, however, is not well-founded. While the Constitution
minimum expenditure commitments for each of the exploration, development mandates the State to exercise full control and supervision over the
and utilization phases of the mining enterprise. exploitation of mineral resources, nowhere does it require the government to
hold all exploration permits and similar authorizations. In fact, there is no
Once these plans and reports are approved, the contractor is bound to prohibition at all against foreign or local corporations or contractors holding
comply with its commitments therein. Figures for mineral production and sales exploration permits. The reason is not hard to see.
are regularly monitored and subjected to government review, in order to
ensure that the products and by-products are disposed of at the best prices Pursuant to Section 20 of RA 7942, an exploration permit merely grants
possible; even copies of sales agreements have to be submitted to and to a qualified person the right to conduct exploration for all minerals in specified
registered with MGB. And the contractor is mandated to open its books of areas. Such a permit does not amount to an authorization to extract and carry
accounts and records for scrutiny, so as to enable the State to determine if the off the mineral resources that may be discovered. This phase involves nothing
government share has been fully paid. but expenditures for exploring the contract area and locating the mineral
bodies. As no extraction is involved, there are no revenues or incomes to
The State may likewise compel the contractors compliance with speak of. In short, the exploration permit is an authorization for the grantee to
mandatory requirements on mine safety, health and environmental protection, spend its own funds on exploration programs that are pre-approved by the
and the use of anti-pollution technology and facilities. Moreover, the contractor government, without any right to recover anything should no minerals in
is also obligated to assist in the development of the mining community and to commercial quantities be discovered. The State risks nothing and loses
pay royalties to the indigenous peoples concerned. nothing by granting these permits to local or foreign firms; in fact, it stands to
gain in the form of data generated by the exploration activities.
Cancellation of the FTAA may be the penalty for violation of any of its
terms and conditions and/or noncompliance with statutes or regulations. This Pursuant to Section 24 of RA 7942, an exploration permit grantee who
general, all-around, multipurpose sanction is no trifling matter, especially to a determines the commercial viability of a mining area may, within the term of
contractor who may have yet to recover the tens or hundreds of millions of the permit, file with the MGB a declaration of mining project feasibility
dollars sunk into a mining project. accompanied by a work program for development. The approval of the mining
project feasibility and compliance with other requirements of RA 7942 vests in 5. The Bureau of Forest Development is vested with discretion in
the grantee the exclusive right to an MPSA or any other mineral agreement, regard to approving the inclusion of forest reserves as part of
or to an FTAA. the FTAA contract area (Clause 4.5).
Thus, the permit grantee may apply for an MPSA, a joint venture 6. The contractor is obliged to relinquish periodically parts of the
agreement, a co-production agreement, or an FTAA over the permit area, and contract area not needed for exploration and development
the application shall be approved if the permit grantee meets the necessary (Clause 4.6).
qualifications and the terms and conditions of any such agreement. Therefore,
the contractor will be in a position to extract minerals and earn revenues only 7. A Declaration of Mining Feasibility must be submitted for approval
when the MPSA or another mineral agreement, or an FTAA, is granted. At that by the State (Clause 4.6-b).
point, the contractors rights and obligations will be covered by an FTAA or a 8. The contractor is obligated to report to the State its exploration
mineral agreement. activities (Clause 4.9).
But prior to the issuance of such FTAA or mineral agreement, the 9. The contractor is required to obtain State approval of its work
exploration permit grantee (or prospective contractor) cannot yet be deemed programs for the succeeding two-year periods, containing the
to have entered into any contract or agreement with the State, and the grantee proposed work activities and expenditures budget related to
would definitely need to have some document or instrument as evidence of its exploration (Clause 5.1).
right to conduct exploration works within the specified area. This need is met
by the exploration permit issued pursuant to Sections 3(aq), 20 and 23 of RA 10. The contractor is required to obtain State approval for its
7942. proposed expenditures for exploration activities (Clause 5.2).
In brief, the exploration permit serves a practical and legitimate 11. The contractor is required to submit an annual report on
purpose in that it protects the interests and preserves the rights of the geological, geophysical, geochemical and other information
exploration permit grantee (the would-be contractor) -- foreign or local - relating to its explorations within the FTAA area (Clause 5.3-a).
- during the period of time that it is spending heavily on exploration
12. The contractor is to submit within six months after expiration of
works, without yet being able to earn revenues to recoup any of its
exploration period a final report on all its findings in the contract
investments and expenditures. Minus this permit and the protection it
area (Clause 5.3-b).
affords, the exploration works and expenditures may end up benefiting only
claim-jumpers. Such a possibility tends to discourage investors and 13. The contractor, after conducting feasibility studies, shall submit
contractors. Thus, Section 3(aq) of RA 7942 may not be deemed a declaration of mining feasibility, along with a description of
unconstitutional. the area to be developed and mined, a description of the
proposed mining operations and the technology to be
The Terms of the WMCP FTAA A Deference to State Control
employed, and a proposed work program for the development
A perusal of the WMCP FTAA also reveals a slew of stipulations providing phase, for approval by the DENR secretary (Clause 5.4).
for State control and supervision:
14. The contractor is obliged to complete the development of the
1. The contractor is obligated to account for the value of production mine, including construction of the production facilities, within
and sale of minerals (Clause 1.4). the period stated in the approved work program (Clause 6.1).
2. The contractors work program, activities and budgets must be 15. The contractor is obligated to submit for approval of the DENR
approved by/on behalf of the State (Clause 2.1). secretary a work program covering each period of three fiscal
years (Clause 6.2).
3. The DENR secretary has the power to extend the exploration
period (Clause 3.2-a). 16. The contractor is to submit reports to the DENR secretary on the
production, ore reserves, work accomplished and work in
4. Approval by the State is necessary for incorporating lands into the progress, profile of its work force and management staff, and
FTAA contract area (Clause 4.3-c). other technical information (Clause 6.3).
17. Any expansions, modifications, improvements and replacements as very significant such a degree of control over the project and, resultantly,
of mining facilities shall be subject to the approval of the over the mining enterprise itself.
secretary (Clause 6.4).
Following its exploration activities or feasibility studies, if the contractor
18. The State has control with respect to the amount of funds that believes that any part of the contract area is likely to contain an economic
the contractor may borrow within the Philippines (Clause 7.2). mineral resource, it shall submit to the DENR secretary a declaration of mining
feasibility (per Clause 5.4 of the FTAA), together with a technical description
19. The State has supervisory power with respect to technical, of the area delineated for development and production, a description of the
financial and marketing issues (Clause 10.1-a). proposed mining operations including the technology to be used, a work
20. The contractor is required to ensure 60 percent Filipino equity in program for development, an environmental impact statement, and a
the contractor, within ten years of recovering specified description of the contributions to the economic and general welfare of the
expenditures, unless not so required by subsequent legislation country to be generated by the mining operations (pursuant to Clause 5.5).
(Clause 10.1). The work program for development is subject to the approval of the DENR
21. The State has the right to terminate the FTAA for the contractors secretary. Upon its approval, the contractor must comply with it and complete
unremedied substantial breach thereof (Clause 13.2); the development of the mine, including the construction of production facilities
and installation of machinery and equipment, within the period provided in the
22. The States approval is needed for any assignment of the FTAA approved work program for development (per Clause 6.1).
by the contractor to an entity other than an affiliate (Clause
14.1). Thus, notably, the development phase of the project is likewise subject to
the control and supervision of the government. It cannot be emphasized
We should elaborate a little on the work programs and budgets, and what enough that the proper and timely construction and deployment of the
they mean with respect to the States ability to exercise full control and effective production facilities and the development of the mine are of pivotal significance
supervision over the enterprise. For instance, throughout the initial five- to the success of the mining venture. Any missteps here will potentially be very
year exploration and feasibility phase of the project, the contractor is mandated costly to remedy. Hence, the submission of the work program for development
by Clause 5.1 of the WMCP FTAA to submit a series of work programs (copy to the DENR secretary for approval is particularly noteworthy, considering that
furnished the director of MGB) to the DENR secretary for approval. The so many millions of dollars worth of investments -- courtesy of the contractor -
programs will detail the contractors proposed exploration activities and - are made to depend on the States consideration and action.
budget covering each subsequent period of two fiscal years.
Throughout the operating period, the contractor is required to submit to
In other words, the concerned government officials will be informed the DENR secretary for approval, copy furnished the director of MGB, work
beforehand of the proposed exploration activities and expenditures of the programs covering each period of three fiscal years (per Clause 6.2). During
contractor for each succeeding two-year period, with the right to the same period (per Clause 6.3), the contractor is mandated to submit various
approve/disapprove them or require changes or adjustments therein if deemed quarterly and annual reports to the DENR secretary, copy furnished the
necessary. director of MGB, on the tonnages of production in terms of ores and
concentrates, with corresponding grades, values and destinations; reports of
Likewise, under Clause 5.2(a), the amount that the contractor was
sales; total ore reserves, total tonnage of ores, work accomplished and work
supposed to spend for exploration activities during the first contract year of the
in progress (installations and facilities related to mining operations),
exploration period was fixed at not less than P24 million; and then for the
investments made or committed, and so on and so forth.
succeeding years, the amount shall be as agreed between the DENR
secretary and the contractor prior to the commencement of each subsequent Under Section VIII, during the period of mining operations, the contractor
fiscal year. If no such agreement is arrived upon, the previous years is also required to submit to the DENR secretary (copy furnished the director
expenditure commitment shall apply. of MGB) the work program and corresponding budget for the contract area,
describing the mining operations that are proposed to be carried out during the
This provision alone grants the government through the DENR secretary
period covered. The secretary is, of course, entitled to grant or deny approval
a very big say in the exploration phase of the project. This fact is not something
of any work program or budget and/or propose revisions thereto. Once the
to be taken lightly, considering that the government has absolutely no
program/budget has been approved, the contractor shall comply therewith.
contribution to the exploration expenditures or work activities and yet is given
veto power over such a critical aspect of the project. We cannot but construe
In sum, the above provisions of the WMCP FTAA taken together, far from We hold, however, that the foregoing provisions do not manifest a
constituting a surrender of control and a grant of beneficial ownership of relinquishment of control. For instance, Clause 8.2 merely provides a
mineral resources to the contractor in question, bestow upon the State more mechanism for preventing the business or mining operations from grinding to
than adequate control and supervision over the activities of the a complete halt as a result of possibly over-long and unjustified delays in the
contractor and the enterprise. governments handling, processing and approval of submitted work programs
and budgets. Anyway, the provision does give the DENR secretary more than
No Surrender of Control under the WMCP FTAA sufficient time (60 days) to react to submitted work programs and budgets. It
Petitioners, however, take aim at Clause 8.2, 8.3, and 8.5 of the WMCP cannot be supposed that proper grounds for objecting thereto, if any exist,
FTAA which, they say, amount to a relinquishment of control by the State, cannot be discovered within a period of two months.
since it cannot truly impose its own discretion in respect of the submitted work On the other hand, Clause 8.3 seeks to provide a temporary, stop-gap
programs. solution in the event a disagreement over the submitted work program or
8.2. The Secretary shall be deemed to have approved any Work budget arises between the State and the contractor and results in a stalemate
Programme or Budget or variation thereof submitted by the or impasse, in order that there will be no unreasonably long delays in the
Contractor unless within sixty (60) days after submission by performance of the works.
the Contractor the Secretary gives notice declining such These temporary or stop-gap solutions are not necessarily evil or wrong.
approval or proposing a revision of certain features and Neither does it follow that the government will inexorably be aggrieved if and
specifying its reasons therefor (the Rejection Notice). when these temporary remedies come into play. First, avoidance of long
8.3. If the Secretary gives a Rejection Notice, the Parties shall delays in these situations will undoubtedly redound to the benefit of the State
promptly meet and endeavor to agree on amendments to the as well as the contractor. Second, who is to say that the work program or
Work Programme or Budget. If the Secretary and the budget proposed by the contractor and deemed approved under Clause 8.3
Contractor fail to agree on the proposed revision within 30 would not be the better or more reasonable or more effective alternative? The
days from delivery of the Rejection Notice then the Work contractor, being the insider, as it were, may be said to be in a better position
Programme or Budget or variation thereof proposed by the than the State -- an outsider looking in -- to determine what work program or
Contractor shall be deemed approved, so as not to budget would be appropriate, more effective, or more suitable under the
unnecessarily delay the performance of the Agreement. circumstances.
Seen in this context, Clause 10.2(l) is not something out of the ordinary On the other hand, Clause 10.4(i) provides that the Government shall
or objectionable. In any case, as will be explained below, even if it is allowed favourably consider any request from [the] Contractor for amendments of this
Agreement which are necessary in order for the Contractor to successfully shareholder to buy or sell the shares, though the shareholder is not registered
obtain the financing. Petitioners see in this provision a complete renunciation in the corporations books as the owner.[62] Usually, beneficial ownership is
of control. We disagree. distinguished from naked ownership, which is the enjoyment of all the benefits
and privileges of ownership, as against possession of the bare title to property.
The proviso does not say that the government shall grant any request for
amendment. Clause 10.4(i) only obliges the State to favorably consider any An assiduous examination of the WMCP FTAA uncovers no indication
such request, which is not at all unreasonable, as it is not equivalent to saying that it confers upon WMCP ownership, beneficial or otherwise, of the mining
that the government must automatically consent to it. This provision should be property it is to develop, the minerals to be produced, or the proceeds of their
read together with the rest of the FTAA provisions instituting government sale, which can be legally asserted and enforced as against the State.
control and supervision over the mining enterprise. The clause should not be
given an interpretation that enables the contractor to wiggle out of the As public respondents correctly point out, any interest the contractor may
restrictions imposed upon it by merely suggesting that certain amendments have in the proceeds of the mining operation is merely the equivalent of the
are requested by the lenders. consideration the government has undertaken to pay for its services. All lawful
contracts require such mutual prestations, and the WMCP FTAA is no
Rather, it is up to the contractor to prove to the government that the different. The contractor commits to perform certain services for the
requested changes to the FTAA are indispensable, as they enable the government in respect of the mining operation, and in turn it is to be
contractor to obtain the needed financing; that without such contract changes, compensated out of the net mining revenues generated from the sale of
the funders would absolutely refuse to extend the loan; that there are no other mineral products. What would be objectionable is a contractual provision that
sources of financing available to the contractor (a very unlikely scenario); and unduly benefits the contractor far in excess of the service rendered or value
that without the needed financing, the execution of the work programs will not delivered, if any, in exchange therefor.
proceed. But the bottom line is, in the exercise of its power of control, the
government has the final say on whether to approve or disapprove such A careful perusal of the statute itself and its implementing rules reveals
requested amendments to the FTAA. In short, approval thereof is not that neither RA 7942 nor DAO 99-56 can be said to convey beneficial
mandatory on the part of the government. ownership of any mineral resource or product to any foreign FTAA contractor.
In fine, the foregoing evaluation and analysis of the aforementioned Equitable Sharing of Financial Benefits
FTAA provisions sufficiently overturns petitioners litany of objections to On the contrary, DAO 99-56, entitled Guidelines Establishing the Fiscal
and criticisms of the States alleged lack of control. Regime of Financial or Technical Assistance Agreements aims to ensure an
Financial Benefits Not Surrendered to the Contractor equitable sharing of the benefits derived from mineral resources. These
benefits are to be equitably shared among the government (national and local),
One of the main reasons certain provisions of RA 7942 were struck down the FTAA contractor, and the affected communities. The purpose is to ensure
was the finding mentioned in the Decision that beneficial ownership of the sustainable mineral resources development; and a fair, equitable, competitive
mineral resources had been conveyed to the contractor. This finding was and stable investment regime for the large-scale exploration, development and
based on the underlying assumption, common to the said provisions, that the commercial utilization of minerals. The general framework or concept followed
foreign contractor manages the mineral resources in the same way that foreign in crafting the fiscal regime of the FTAA is based on the principle that the
contractors in service contracts used to. By allowing foreign contractors to government expects real contributions to the economic growth and general
manage or operate all the aspects of the mining operation, the above-cited welfare of the country, while the contractor expects a reasonable return on its
provisions of R.A. No. 7942 have in effect conveyed beneficial investments in the project.[63]
ownership over the nations mineral resources to these contractors, leaving
the State with nothing but bare title thereto.[60] As the WMCP FTAA contained Specifically, under the fiscal regime, the governments expectation is, inter
similar provisions deemed by the ponente to be abhorrent to the Constitution, alia, the receipt of its share from the taxes and fees normally paid by a mining
the Decision struck down the Contract as well. enterprise. On the other hand, the FTAA contractor is granted by the
government certain fiscal and non-fiscal incentives[64] to help support the
Beneficial ownership has been defined as ownership recognized by law formers cash flow during the most critical phase (cost recovery) and to make
and capable of being enforced in the courts at the suit of the beneficial the Philippines competitive with other mineral-producing countries. After the
owner.[61] Blacks Law Dictionaryindicates that the term is used in two contractor has recovered its initial investment, it will pay all the normal taxes
senses: first, to indicate the interest of a beneficiary in trust property (also and fees comprising the basic share of the government, plus an additional
called equitable ownership); and second, to refer to the power of a corporate
share for the government based on the options and formulae set forth in DAO Licensing fees (for example, radio permit, firearms permit,
99-56. professional fees)
The said DAO spells out the financial benefits the government will receive Other national taxes and fees.
from an FTAA, referred to as the Government Share, composed of a basic
government share and anadditional government share. Payments to Local Governments:
The basic government share is comprised of all direct taxes, fees and Local business tax - a maximum of 2 percent of gross sales
royalties, as well as other payments made by the contractor during the term of or receipts (the rate varies among local government units)
the FTAA. These are amounts paid directly to (i) the national government Real property tax - 2 percent of the fair market value of the
(through the Bureau of Internal Revenue, Bureau of Customs, Mines & property, based on an assessment level set by the local
Geosciences Bureau and other national government agencies imposing taxes government
or fees), (ii) the local government units where the mining activity is conducted,
and (iii) persons and communities directly affected by the mining project. The Special education levy - 1 percent of the basis used for the
major taxes and other payments constituting the basic government share are real property tax
enumerated below:[65]
Occupation fees - PhP50 per hectare per year; PhP100 per
Payments to the National Government: hectare per year if located in a mineral reservation
Excise tax on minerals - 2 percent of the gross output of Community tax - maximum of PhP10,500 per year
mining operations
All other local government taxes, fees and imposts as of
Contractor income tax - maximum of 32 percent of taxable the effective date of the FTAA - the rate and the type depend
income for corporations on the local government
Customs duties and fees on imported capital equipment - Other Payments:
the rate is set by the Tariff and Customs Code (3-7 percent
Royalty to indigenous cultural communities, if any 1 percent
for chemicals; 3-10 percent for explosives; 3-15 percent for
of gross output from mining operations
mechanical and electrical equipment; and 3-10 percent for
vehicles, aircraft and vessels Special allowance - payment to claim owners and surface
rights holders
VAT on imported equipment, goods and services 10 percent
of value Apart from the basic share, an additional government share is also
collected from the FTAA contractor in accordance with the second paragraph
Royalties due the government on minerals extracted from
of Section 81 of RA 7942, which provides that the government share shall be
mineral reservations, if applicable 5 percent of the actual
comprised of, among other things, certain taxes, duties and fees. The subject
market value of the minerals produced
proviso reads:
Documentary stamp tax - the rate depends on the type of
transaction The Government share in a financial or technical assistance agreement shall consist
of, among other things, the contractors corporate income tax, excise tax, special
Capital gains tax on traded stocks - 5 to 10 percent of the
allowance, withholding tax due from the contractors foreign stockholders arising
value of the shares
from dividend or interest payments to the said foreign stockholder in case of a
Withholding tax on interest payments on foreign loans -15 foreign national, and all such other taxes, duties and fees as provided for under
percent of the amount of interest existing laws. (Bold types supplied.)
(a) all Government taxes, fees, levies, costs, imposts, In connection with Section 7.8, an objection has been raised: Specified in
duties and royalties including excise tax, Section 7.8 are numerous items of deduction from the States 60 percent share.
corporate income tax, customs duty, sales tax, After taking these into account, will the State ever receive anything for its
value added tax, occupation and regulatory ownership of the mineral resources?
fees, Government controlled price stabilization We are confident that under normal circumstances, the answer will
schemes, any other form of Government backed be yes. If we examine the various items of deduction listed in Section 7.8 of
schemes, any tax on dividend payments by the the WMCP FTAA, we will find that they correspond closely to the components
Contractor or its Affiliates in respect of or elements of the basic government share established in DAO 99-56, as
revenues from the Mining Operations and any discussed in the earlier part of this Opinion.
tax on interest on domestic and foreign loans
or other financial arrangements or Likewise, the balance of the governments 60 percent share -- after netting
accommodations, including loans extended to out the items of deduction listed in Section 7.8 --corresponds closely to
the Contractor by its stockholders; the additional government shareprovided for in DAO 99-56 which, we once
(b) any payments to local and regional government, again stress, has nothing at all to do with indirect taxes. The Ramos-DeVera
including taxes, fees, levies, costs, imposts, paper[92] concisely presents the fiscal contribution of an FTAA under DAO 99-
duties, royalties, occupation and regulatory 56 in this equation:
fees and infrastructure contributions;
Receipts from an FTAA = basic govt share + addl govt share
(c) any payments to landowners, surface rights holders,
occupiers, indigenous people or Claimowners; Transposed into a similar equation, the fiscal payments system from the
(d) costs and expenses of fulfilling the Contractors WMCP FTAA assumes the following formulation:
obligations to contribute to national
development in accordance with Clause 10.1(i) Governments 60 percent share in net mining revenues of WMCP = items listed in
(1) and 10.1(i) (2); Sec. 7.8 of the FTAA + balance of Govt share, payable 4 months from the end of the
(e) an amount equivalent to whatever benefits that may be fiscal year
extended in the future by the Government to the
It should become apparent that the fiscal arrangement under the WMCP The State shall protect the nations marine wealth in its archipelagic waters,
FTAA is very similar to that under DAO 99-56, with the balance of government territorial sea, and exclusive economic zone, and reserve its use and enjoyment
share payable 4 months from end of fiscal year being the equivalent of exclusively to Filipino citizens.
the additional government share computed in accordance with the net-
mining-revenue-based option under DAO 99-56, as discussed above. As we The Congress may, by law, allow small-scale utilization of natural resources by
have emphasized earlier, we find each of the three options for computing Filipino citizens, as well as cooperative fish farming, with priority to subsistence
the additional government share -- as presented in DAO 99-56 -- to be fishermen and fish-workers in rivers, lakes, bays and lagoons.
sound and reasonable.
We therefore conclude that there is nothing inherently wrong in The President may enter into agreements with foreign-owned corporations involving
the fiscal regime of the WMCP FTAA, and certainly nothing to warrant either technical or financial assistance for large-scale exploration, development, and
the invalidation of the FTAA in its entirety. 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
Section 3.3 of the WMCP FTAA Constitutional growth and general welfare of the country. In such agreements, the State shall
promote the development and use of local scientific and technical resources.
Section 3.3 of the WMCP FTAA is assailed for violating supposed
constitutional restrictions on the term of FTAAs. The provision in question
reads: The President shall notify the Congress of every contract entered into in accordance
with this provision, within thirty days from its execution.[93]
3.3 This Agreement shall be renewed by the Government for a further
period of twenty-five (25) years under the same terms and We hold that the term limitation of twenty-five years does not apply to
conditions provided that the Contractor lodges a request for FTAAs. The reason is that the above provision is found within paragraph 1 of
renewal with the Government not less than sixty (60) days prior to Section 2 of Article XII, which refers to mineral agreements -- co-production
the expiry of the initial term of this Agreement and provided that agreements, joint venture agreements and mineral production-sharing
the Contractor is not in breach of any of the requirements of this agreements -- which the government may enter into with Filipino citizens and
Agreement. corporations, at least 60 percent owned by Filipino citizens. The word such
clearly refers to these three mineral agreements -- CPAs, JVAs and MPSAs -
- not to FTAAs.
Allegedly, the above provision runs afoul of Section 2 of Article XII of the
1987 Constitution, which states: Specifically, FTAAs are covered by paragraphs 4 and 5 of Section 2 of
Article XII of the Constitution. It will be noted that there are no term
Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other limitations provided for in the said paragraphs dealing with FTAAs. This shows
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora that FTAAs are sui generis, in a class of their own. This omission was
and fauna, and other natural resources are owned by the State. With the exception of obviously a deliberate move on the part of the framers. They probably realized
agricultural lands, all other natural resources shall not be alienated. The that FTAAs would be different in many ways from MPSAs, JVAs and CPAs.
exploration, development and utilization of natural resources shall be under the full The reason the framers did not fix term limitations applicable to FTAAs is that
control and supervision of the State. The State may directly undertake such activities, they preferred to leave the matter to the discretion of the legislature and/or the
or it may enter into co-production, joint venture or production-sharing agreements agencies involved in implementing the laws pertaining to FTAAs, in order to
with Filipino citizens or corporations or associations at least sixty per centum of give the latter enough flexibility and elbow room to meet changing
whose capital is owned by such citizens. Such agreements may be for a period not circumstances.
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 Note also that, as previously stated, the exploratory phrases of an FTAA
rights for irrigation, water supply, fisheries, or industrial uses other than the lasts up to eleven years. Thereafter, a few more years would be gobbled up in
development of water power, beneficial use may be the measure and limit of the start-up operations. It may take fifteen years before an FTAA contractor can
grant. start earning profits. And thus, the period of 25 years may really be short for
an FTAA. Consider too that in this kind of agreement, the contractor assumes
all entrepreneurial risks. If no commercial quantities of minerals are found, the
contractor bears all financial losses. To compensate for this long gestation
period and extra business risks, it would not be totally unreasonable to allow it representation therein to the extent of their equity participation, which the
to continue EDU activities for another twenty five years. Constitution permits to be up to 40 percent of the contractors equity. Hence,
the non-Filipino stakeholders may in that manner also participate in the
In any event, the complaint is that, in essence, Section 3.3 gives the management of the contractors natural resource development work. All of this
contractor the power to compel the government to renew the WMCP FTAA for is permitted by our Constitution, for any natural resource, and without limitation
another 25 years and deprives the State of any say on whether to renew the even in regard to the magnitude of the mining project or operations (see
contract. paragraph 1 of Section 2 of Article XII).
While we agree that Section 3.3 could have been worded so as to prevent It is clear, then, that there is nothing inherently wrong with or
it from favoring the contractor, this provision does not violate any constitutional constitutionally objectionable about the idea of foreign individuals and entities
limits, since the said term limitation does not apply at all to FTAAs. Neither can having or enjoying beneficial interest in -- and participating in the management
the provision be deemed in any manner to be illegal, as no law is being violated of operations relative to -- the exploration, development and utilization of our
thereby. It is certainly not illegal for the government to waive its option to refuse natural resources.
the renewal of a commercial contract.
FTAA More Advantageous Than Other Schemes Like CPA, JVA and
Verily, the government did not have to agree to Section 3.3. It could have MPSA
said No to the stipulation, but it did not. It appears that, in the process of
negotiations, the other contracting party was able to convince the government A final point on the subject of beneficial interest. We believe the FTAA is
to agree to the renewal terms. Under the circumstances, it does not seem a more advantageous proposition for the government as compared with other
proper for this Court to intervene and step in to undo what might have perhaps agreements permitted by the Constitution. In a CPA that the government
been a possible miscalculation on the part of the State. If government believes enters into with one or more contractors, the government shall provide inputs
that it is or will be aggrieved by the effects of Section 3.3, the remedy is the to the mining operations other than the mineral resource itself.[94]
renegotiation of the provision in order to provide the State the option to not
renew the FTAA. In a JVA, a JV company is organized by the government and the
contractor, with both parties having equity shares (investments); and the
Financial Benefits for Foreigners Not Forbidden by the contractor is granted the exclusive right to conduct mining operations and to
Constitution extract minerals found in the area.[95] On the other hand, in an MPSA, the
government grants the contractor the exclusive right to conduct mining
Before leaving this subject matter, we find it necessary for us to rid operations within the contract area and shares in the gross output; and the
ourselves of the false belief that the Constitution somehow forbids foreign- contractor provides the necessary financing, technology, management and
owned corporations from deriving financial benefits from the development of manpower.
our natural or mineral resources.
The point being made here is that, in two of the three types of agreements
The Constitution has never prohibited foreign corporations from acquiring under consideration, the government has to ante up some risk capital for the
and enjoying beneficial interest in the development of Philippine natural enterprise. In other words, government funds (public moneys) are withdrawn
resources. The State itself need not directly undertake exploration, from other possible uses, put to work in the venture and placed at risk in case
development, and utilization activities. Alternatively, the Constitution the venture fails. This notwithstanding, management and control of the
authorizes the government to enter into joint venture agreements (JVAs), co- operations of the enterprise are -- in all three arrangements -- in the hands of
production agreements (CPAs) and mineral production sharing agreements the contractor, with the government being mainly a silent partner. The three
(MPSAs) with contractors who are Filipino citizens or corporations that are at types of agreement mentioned above apply to any natural resource, without
least 60 percent Filipino-owned. They may do the actual dirty work -- the limitation and regardless of the size or magnitude of the project or operations.
mining operations.
In contrast to the foregoing arrangements, and pursuant to paragraph 4
In the case of a 60 percent Filipino-owned corporation, the 40 percent of Section 2 of Article XII, the FTAA is limited to large-scale projects and only
individual and/or corporate non-Filipino stakeholders obviously participate in for minerals, petroleum and other mineral oils. Here, the Constitution removes
the beneficial interest derived from the development and utilization of our the 40 percent cap on foreign ownership and allows the foreign corporation to
natural resources. They may receive by way of dividends, up to 40 percent of own up to 100 percent of the equity. Filipino capital may not be sufficient on
the contractors earnings from the mining project. Likewise, they may have a account of the size of the project, so the foreign entity may have to ante up all
say in the decisions of the board of directors, since they are entitled to the risk capital.
Correlatively, the foreign stakeholder bears up to 100 percent of the risk natural resources, in order to maximize the value added from the development
of loss if the project fails. In respect of the particular FTAA granted to it, WMCP of their resources and ensure that they are on the path to sustainable
(then 100 percent foreign owned) was responsible, as contractor, for providing development once the resources run out.
the entire equity, including all the inputs for the project. It was to bear 100
percent of the risk of loss if the project failed, but its maximum potential Whatever priority or preference may be given to mining vis--vis other
beneficial interest consisted only of 40 percent of the net beneficial interest, economic or non-economic activities is a question of policy that the President
because the other 60 percent is the share of the government, which will never and Congress will have to address; it is not for this Court to decide. This Court
be exposed to any risk of loss whatsoever. declares what the Constitution and the laws say, interprets only when
necessary, and refrains from delving into matters of policy.
In consonance with the degree of risk assumed, the FTAA vested in
WMCP the day-to-day management of the mining operations. Still such Suffice it to say that the State control accorded by the Constitution over
management is subject to the overall control and supervision of the State in mining activities assures a proper balancing of interests. More pointedly, such
terms of regular reporting, approvals of work programs and budgets, and so control will enable the President to demand the best mining practices and the
on. use of the best available technologies to protect the environment and to
rehabilitate mined-out areas. Indeed, under the Mining Law, the government
So, one needs to consider in relative terms, the costs of inputs for, degree can ensure the protection of the environment during and after mining. It can
of risk attendant to, and benefits derived or to be derived from a CPA, a JVA likewise provide for the mechanisms to protect the rights of indigenous
or an MPSA vis--vis those pertaining to an FTAA. It may not be realistically communities, and thereby mold a more socially-responsive, culturally-
asserted that the foreign grantee of an FTAA is being unduly favored or sensitive and sustainable mining industry.
benefited as compared with a foreign stakeholder in a corporation holding a
CPA, a JVA or an MPSA. Seen the other way around, the government is Early on during the launching of the Presidential Mineral Industry
definitely better off with an FTAA than a CPA, a JVA or an MPSA. Environmental Awards on February 6, 1997, then President Fidel V. Ramos
captured the essence of balanced and sustainable mining in these words:
Developmental Policy on the Mining Industry
During the Oral Argument and in their Final Memorandum, petitioners Long term, high profit mining translates into higher revenues for government, more
decent jobs for the population, more raw materials to feed the engines of
repeatedly urged the Court to consider whether mining as an industry and
downstream and allied industries, and improved chances of human resource and
economic activity deserved to be accorded priority, preference and
countryside development by creating self-reliant communities away from urban
government support as against, say, agriculture and other activities in which
centers.
Filipinos and the Philippines may have an economic advantage. For instance,
a recent US study[96] reportedly examined the economic performance of all
local US counties that were dependent on mining and 20 percent of whose xxxxxxxxx
labor earnings between 1970 and 2000 came from mining enterprises.
Against a fragile and finite environment, it is sustainability that holds the key. In
The study -- covering 100 US counties in 25 states dependent on mining sustainable mining, we take a middle ground where both production and protection
-- showed that per capita income grew about 30 percent less in mining- goals are balanced, and where parties-in-interest come to terms.
dependent communities in the 1980s and 25 percent less for the entire period
1980 to 2000; the level of per capita income was also lower. Therefore, given
the slower rate of growth, the gap between these and other local counties Neither has the present leadership been remiss in addressing the
increased. concerns of sustainable mining operations. Recently, on January 16, 2004 and
April 20, 2004, President Gloria Macapagal Arroyo issued Executive Orders
Petitioners invite attention to the OXFAM America Reports warning to Nos. 270 and 270-A, respectively, to promote responsible mineral resources
developing nations that mining brings with it serious economic problems, exploration, development and utilization, in order to enhance economic
including increased regional inequality, unemployment and poverty. They also growth, in a manner that adheres to the principles of sustainable development
cite the final report[97] of the Extractive Industries Review project commissioned and with due regard for justice and equity, sensitivity to the culture of the
by the World Bank (the WB-EIR Report), which warns of environmental Filipino people and respect for Philippine sovereignty.[98]
degradation, social disruption, conflict, and uneven sharing of benefits with
local communities that bear the negative social and environmental impact. The REFUTATION OF DISSENTS
Report suggests that countries need to decide on the best way to exploit their
The Court will now take up a number of other specific points raised in the nave. This begs the question -- What laudable objective or purpose could
dissents of Justices Carpio and Morales. possibly be served by such strict and restrictive literal interpretation?
1. Justice Morales introduced us to Hugh Morgan, former president and 3. Citing Oposa v. Factoran Jr., Justice Morales claims that a service
chief executive officer of Western Mining Corporation (WMC) and former contract is not a contract or property right which merits protection by the due
president of the Australian Mining Industry Council, who spearheaded the process clause of the Constitution,but merely a license or privilege which may
vociferous opposition to the filing by aboriginal peoples of native title claims be validly revoked, rescinded or withdrawn by executive action whenever
against mining companies in Australia in the aftermath of the dictated by public interest or public welfare.
landmarkMabo decision by the Australian High Court. According to sources
quoted by our esteemed colleague, Morgan was also a racist and a bigot. In Oposa cites Tan v. Director of Forestry and Ysmael v. Deputy Executive
the course of protesting Mabo, Morgan allegedly uttered derogatory remarks Secretary as authority. The latter cases dealt specifically with timber licenses
belittling the aboriginal culture and race. only. Oposa allegedly reiterated that a license is merely a permit or privilege
to do what otherwise would be unlawful, and is not a contract between the
An unwritten caveat of this introduction is that this Court should be careful authority, federal, state or municipal, granting it and the person to whom it is
not to permit the entry of the likes of Hugh Morgan and his hordes of alleged granted; neither is it property or a property right, nor does it create a vested
racist-bigots at WMC. With all due respect, such scare tactics should have no right; nor is it taxation. Thus this Court held that the granting of license does
place in the discussion of this case. We are deliberating on the constitutionality not create irrevocable rights, neither is it property or property rights.
of RA 7942, DAO 96-40 and the FTAA originally granted to WMCP, which had
been transferred to Sagittarius Mining, a Filipino corporation. We are not Should Oposa be deemed applicable to the case at bar, on the argument
discussing the apparition of white Anglo-Saxon racists/bigots massing at our that natural resources are also involved in this situation? We do not think so.
gates. A grantee of a timber license, permit or license agreement gets to cut the
timber already growing on the surface; it need not dig up tons of earth to get
2. On the proper interpretation of the phrase agreements involving either at the logs. In a logging concession, the investment of the licensee is not as
technical or financial assistance, Justice Morales points out that at times we substantial as the investment of a large-scale mining contractor. If a timber
conveniently omitted the use of the disjunctive eitheror, which according to her license were revoked, the licensee packs up its gear and moves to a new area
denotes restriction; hence the phrase must be deemed to connote restriction applied for, and starts over; what it leaves behind are mainly the trails leading
and limitation. to the logging site.
But, as Justice Carpio himself pointed out during the Oral Argument, the In contrast, the mining contractor will have sunk a great deal of money
disjunctive phrase either technical or financial assistance would, strictly (tens of millions of dollars) into the ground, so to speak, for exploration
speaking, literally mean that a foreign contractor may provide only one or the activities, for development of the mine site and infrastructure, and for the actual
other, but not both. And if both technical and financial assistance were required excavation and extraction of minerals, including the extensive tunneling work
for a project, the State would have to deal with at least two different foreign to reach the ore body. The cancellation of the mining contract will utterly
contractors -- one for financial and the other for technical assistance. And deprive the contractor of its investments (i.e., prevent recovery of
following on that, a foreign contractor, though very much qualified to provide investments), most of which cannot be pulled out.
both kinds of assistance, would nevertheless be prohibited from providing one
kind as soon as it shall have agreed to provide the other. To say that an FTAA is just like a mere timber license or permit and does
not involve contract or property rights which merit protection by the due
But if the Court should follow this restrictive and literal construction, can process clause of the Constitution, and may therefore be revoked or cancelled
we really find two (or more) contractors who are willing to participate in one in the blink of an eye, is to adopt a well-nigh confiscatory stance; at the very
single project -- one to provide the financial assistance only and the other the least, it is downright dismissive of the property rights of businesspersons and
technical assistance exclusively; it would be excellent if these two or more corporate entities that have investments in the mining industry, whose
contractors happen to be willing and are able to cooperate and work closely investments, operations and expenditures do contribute to the general welfare
together on the same project (even if they are otherwise competitors). And it of the people, the coffers of government, and the strength of the economy.
would be superb if no conflicts would arise between or among them in the Such a pronouncement will surely discourage investments (local and foreign)
entire course of the contract. But what are the chances things will turn out this which are critically needed to fuel the engine of economic growth and move
way in the real world? To think that the framers deliberately imposed this kind this country out of the rut of poverty. In sum, Oposa is not applicable.
of restriction is to say that they were either exceedingly optimistic, or incredibly
4. Justice Morales adverts to the supposedly clear intention of the framers applicable only during the development, construction and utilization phase, but
of the Constitution to reserve our natural resources exclusively for the Filipino not during the exploration phase, when the foreign contractor need merely
people. She then quoted from the records of the ConCom deliberations a comply with minimum ground expenditures. Thus by converting, the foreign
passage in which then Commissioner Davide explained his vote, arguing in contractor maximizes its profits by avoiding its obligation to make the minimum
the process that aliens ought not be allowed to participate in the enjoyment of investment of $50 million.
our natural resources. One passage does not suffice to capture the tenor or
substance of the entire extensive deliberations of the commissioners, or to This argument forgets that the foreign contractor is in the game precisely
reveal the clear intention of the framers as a group. A re-reading of the entire to make money. In order to come anywhere near profitability, the contractor
deliberations (quoted here earlier) is necessary if we are to understand the must first extract and sell the mineral ore. In order to do that, it must also
true intent of the framers. develop and construct the mining facilities, set up its machineries and
equipment and dig the tunnels to get to the deposit. The contractor is thus
5. Since 1935, the Filipino people, through their Constitution, have compelled to expend funds in order to make profits. If it decides to cut back on
decided that the retardation or delay in the exploration, development or investments and expenditures, it will necessarily sacrifice the pace of
utilization of the nations natural resources is merely secondary to the development and utilization; it will necessarily sacrifice the amount of profits it
protection and preservation of their ownership of the natural resources, so can make from the mining operations. In fact, at certain less-than-optimal
says Justice Morales, citing Aruego. If it is true that the framers of the 1987 levels of operation, the stream of revenues generated may not even be enough
Constitutiondid not care much about alleviating the retardation or delay in the to cover variable expenses, let alone overhead expenses; this is a dismal
development and utilization of our natural resources, why did they bother to situation anyone would want to avoid. In order to make money, one has to
write paragraph 4 at all? Were they merely paying lip service to large-scale spend money. This truism applies to the mining industry as well.
exploration, development and utilization? They could have just completely
ignored the subject matter and left it to be dealt with through a future 8. Mortgaging the minerals to secure a foreign FTAA contractors
constitutional amendment. But we have to harmonize every part of the obligations is anomalous, according to Justice Morales since the contractor
Constitution and to interpret each provision in a manner that would give life was from the beginning obliged to provide all financing needed for the mining
and meaning to it and to the rest of the provisions. It is obvious that a literal operations. However, the mortgaging of minerals by the contractor
interpretation of paragraph 4 will render it utterly inutile and inoperative. does not necessarily signify that the contractor is unable to provide all
financing required for the project, or that it does not have the financial
6. According to Justice Morales, the deliberations of the Constitutional capability to undertake large-scale operations. Mortgaging of mineral products,
Commission do not support our contention that the framers, by specifying such just like the assignment (by way of security) of manufactured goods and goods
agreements involving financial or technical assistance, necessarily gave in inventory, and the assignment of receivables, is an ordinary requirement of
implied assent to everything that these agreements implicitly entailed, or that banks, even in the case of clients with more than sufficient financial resources.
could reasonably be deemed necessary to make them tenable and effective, And nowadays, even the richest and best managed corporations make use of
including management authority in the day-to-day operations. As proof thereof, bank credit facilities -- it does not necessarily signify that they do not have the
she quotes one single passage from the ConCom deliberations, consisting of financial resources or are unable to provide the financing on their own; it is just
an exchange among Commissioners Tingson, Garcia and Monsod. a manner of maximizing the use of their funds.
However, the quoted exchange does not serve to contradict our 9. Does the contractor in reality acquire the surface rights for free, by
argument; it even bolsters it. Comm. Christian Monsod was quoted as virtue of the fact that it is entitled to reimbursement for the costs of acquisition
saying: xxx I think we have to make a distinction that it is not really realistic to and maintenance, adjusted for inflation? We think not. The reimbursement is
say that we will borrow on our own terms. Maybe we can say that we inherited possible only at the end of the term of the contract, when the surface rights will
unjust loans, and we would like to repay these on terms that are not prejudicial no longer be needed, and the land previously acquired will have to be disposed
to our own growth. But the general statement that we should only borrow on of, in which case the contractor gets reimbursement from the sales proceeds.
our own terms is a bit unrealistic. Comm. Monsod is one who knew whereof The contractor has to pay out the acquisition price for the land. That money
he spoke. will belong to the seller of the land. Only if and when the land is finally sold off
will the contractor get any reimbursement. In other words, the contractor will
7. Justice Morales also declares that the optimal time for the conversion have been cash-out for the entire duration of the term of the contract -- 25 or
of an FTAA into an MPSA is after completion of the exploration phase and just 50 years, depending. If we calculate the cost of money at say 12 percent per
before undertaking the development and construction phase, on account of annum, that is the cost or opportunity loss to the contractor, in addition to the
the fact that the requirement for a minimum investment of $50 million is amount of the acquisition price. 12 percent per annum for 50 years is 600
percent; this, without any compounding yet. The cost of money is therefore at terms of sharing of benefits from mining, to be applicable to FTAAs in general.
least 600 percent of the original acquisition cost; it is in addition to the It is important to remember that DAO 99-56 has been in existence for almost
acquisition cost. For free? Not by a long shot. six years, and has not been amended or revoked by the President.
10. The contractor will acquire and hold up to 5,000 hectares? We doubt The issuance of DAO 99-56 did not involve the exercise of delegated
it. The acquisition by the State of land for the contractor is just to enable the legislative power. The legislature did not delegate the power to determine the
contractor to establish its mine site, build its facilities, establish a tailings pond, nature, extent and composition of the items that would come under the
set up its machinery and equipment, and dig mine shafts and tunnels, etc. It is phrase among other things. The legislatures power pertains to the imposition
impossible that the surface requirement will aggregate 5,000 hectares. Much of taxes, duties and fees. This power was not delegated to the DENR
of the operations will consist of the tunneling and digging underground, which secretary. But the power to negotiate and enter into FTAAs was withheld from
will not require possessing or using any land surface. 5,000 hectares is way Congress, and reserved for the President. In determining the sharing of mining
too much for the needs of a mining operator. It simply will not spend its cash benefits, i.e., in specifying what the phrase among other things include, the
to acquire property that it will not need; the cash may be better employed for President (through the secretary acting in his/her behalf) was not determining
the actual mining operations, to yield a profit. the amount or rate of taxes, duties and fees, but rather the amount of INCOME
to be derived from minerals to be extracted and sold, income which belongs to
11. Justice Carpio claims that the phrase among other things (found in the State as owner of the mineral resources. We may say that, in the second
the second paragraph of Section 81 of the Mining Act) is being incorrectly paragraph of Section 81, the legislature in a sense intruded partially into the
treated as a delegation of legislative power to the DENR secretary to issue Presidents sphere of authority when the former provided that
DAO 99-56 and prescribe the formulae therein on the States share from mining
operations. He adds that the phrase among other things was not intended as
The Government share in financial or technical assistance agreement shall consist
a delegation of legislative power to the DENR secretary, much less could it be
of, among other things, the contractors corporate income tax, excise tax, special
deemed a valid delegation of legislative power, since there is nothing in the
allowance, withholding tax due from the contractors foreign stockholders arising
second paragraph of Section 81 which can be said to grant any delegated
from dividend or interest payments to the said foreign stockholder in case of a
legislative power to the DENR secretary. And even if there were, such
foreign national and all such other taxes, duties and fees as provided for under
delegation would be void, for lack of any standards by which the delegated
existing laws. (Italics supplied)
power shall be exercised.
While there is nothing in the second paragraph of Section 81 which can But it did not usurp the Presidents authority since the provision merely
directly be construed as a delegation of legislative power to the DENR included the enumerated items as part of the government share, without
secretary, it does not mean that DAO 99-56 is invalid per se, or that the foreclosing or in any way preventing (as in fact Congress could not validly
secretary acted without any authority or jurisdiction in issuing DAO 99-56. As prevent) the President from determining what constitutes the States
we stated earlier in our Prologue, Who or what organ of government actually compensation derived from FTAAs. In this case, the President in effect
exercises this power of control on behalf of the State? The Constitution is directed the inclusion or addition of other things, viz., INCOME for the owner
crystal clear: the President. Indeed, the Chief Executive is the official of the resources, in the governments share, while adopting the items
constitutionally mandated to enter into agreements with foreign owned enumerated by Congress as part of the government share also.
corporations. On the other hand, Congress may review the action of the
President once it is notified of every contract entered into in accordance with 12. Justice Carpios insistence on applying the ejusdem generis rule of
this [constitutional] provision within thirty days from its execution. It is the statutory construction to the phrase among other things is therefore useless,
President who is constitutionally mandated to enter into FTAAs with foreign and must fall by the wayside. There is no point trying to construe that phrase
corporations, and in doing so, it is within the Presidents prerogative to specify in relation to the enumeration of taxes, duties and fees found in paragraph 2
certain terms and conditions of the FTAAs, for example, the fiscal regime of of Section 81, precisely because the constitutional power to prescribe the
FTAAs -- i.e., the sharing of the net mining revenues between the contractor sharing of mining income between the State and mining companies, to
and the State. quote Justice Carpio pursuant to an FTAA is constitutionally lodged with
the President, not with Congress. It thus makes no sense to persist in giving
Being the Presidents alter ego with respect to the control and supervision the phrase among other things a restricted meaning referring only to taxes,
of the mining industry, the DENR secretary, acting for the President, is duties and fees.
necessarily clothed with the requisite authority and power to draw up
guidelines delineating certain terms and conditions, and specifying therein the
13. Strangely, Justice Carpio claims that the DENR secretary can change We disagree. What we see in black and white is the statement that the
the formulae in DAO 99-56 any time even without the approval of the FTAAs approved before the DAO came into effect are to continue to be valid
President, and the secretary is the sole authority to determine the amount of and will be recognized by the State.Nothing is said about their fiscal
consideration that the State shall receive in an FTAA, because Section 5 of regimes. Certainly, there is no basis to claim that the contractors under said
the DAO states that xxx any amendment of an FTAA other than the provision FTAAs were being exempted from paying the government a share in their
on fiscal regime shall require the negotiation with the Negotiation Panel and mining incomes.
the recommendation of the Secretary for approval of the President xxx.
Allegedly, because of that provision, if an amendment in the FTAA involves For the record, the WMCP FTAA is NOT and has never been exempt
non-fiscal matters, the amendment requires approval of the President, but if from paying the government share. The WMCP FTAA has its own fiscal
the amendment involves a change in the fiscal regime, the DENR secretary regime -- Section 7.7 -- which gives the government a 60 percent share
has the final authority, and approval of the President may be dispensed with; in the net mining revenues of WMCP from the commencement of
hence the secretary is more powerful than the President. commercial production.
We believe there is some distortion resulting from the quoted provision For that very reason, we have never said that DAO 99-56 is the basis for
being taken out of context. Section 5 of DAO 99-56 reads as follows: claiming that the WMCP FTAA has a consideration. Hence, we find quite out
of place Justice Carpios statement that ironically, DAO 99-56, the very
authority cited to support the claim that the WMCP FTAA has a consideration,
Section 5. Status of Existing FTAAs. All FTAAs approved prior to the effectivity of does not apply to the WMCP FTAA. By its own express terms, DAO 99-56
this Administrative Order shall remain valid and be recognized by the Government:
does not apply to FTAAs executed before the issuance of DAO 99-56, like the
Provided, That should a Contractor desire to amend its FTAA, it shall do so by filing
WMCP FTAA. The majoritys position has allegedly no leg to stand on since
a Letter of Intent (LOI) to the Secretary thru the Director. Provided, further, That if
even DAO 99-56, assuming it is valid, cannot save the WMCP FTAA from want
the Contractor desires to amend the fiscal regime of its FTAA, it may do so by
of consideration. Even assuming arguendo that DAO 99-56 does not apply to
seeking for the amendment of its FTAAs whole fiscal regime by adopting the fiscal
the WMCP FTAA, nevertheless, the WMCP FTAA has its own fiscal regime,
regime provided hereof: Provided, finally, That any amendment of an FTAA other
found in Section 7.7 thereof. Hence, there is no such thing as want of
than the provision on fiscal regime shall require the negotiation with the Negotiating
consideration here.
Panel and the recommendation of the Secretary for approval of the President of the
Republic of the Philippines. (underscoring supplied) Still more startling is this claim: The majority supposedly agrees that the
provisions of the WMCP FTAA, which grant a sham consideration to the State,
It looks like another case of misapprehension. The proviso being objected are void. Since the majority agrees that the WMCP FTAA has a sham
to by Justice Carpio is actually preceded by a phrase that requires a contractor consideration, the WMCP FTAA thus lacks the third element of a valid contract.
desiring to amend the fiscal regime of its FTAA, to amend the same by The Decision should declare the WMCP FTAA void for want of consideration
adopting the fiscal regime prescribed in DAO 99-56 -- i.e., solely in that unless it treats the contract as an MPSA under Section 80. Indeed the only
manner, and in no other. Obviously, since DAO 99-56 was issued by the recourse of WMCP to save the validity of its contract is to convert it into an
secretary under the authority and with the presumed approval of the MPSA.
President, the amendment of an FTAA by merely adopting the fiscal
To clarify, we said that Sections 7.9 and 7.8(e) of the WMCP FTAA are
regime prescribed in said DAO 99-56 (and nothing more) need not have
provisions grossly disadvantageous to government and detrimental to the
the express clearance of the President anymore. It is as if the same had been
interests of the Filipino people, as well as violative of public policy, and must
pre-approved. We cannot fathom the complaint that that makes the secretary
therefore be stricken off as invalid. Since the offending provisions are very
more powerful than the President, or that the former is trying to hide things
much separable from Section 7.7 and the rest of the FTAA, the deletion of
from the President or Congress.
Sections 7.9 and 7.8(e) can be done without affecting or requiring the
14. Based on the first sentence of Section 5 of DAO 99-56, which states invalidation of the WMCP FTAA itself, and such deletion will preserve for
[A]ll FTAAs approved prior to the effectivity of this Administrative Order shall government its due share of the 60 percent benefits. Therefore, the WMCP
remain valid and be recognized by the Government, Justice Carpio concludes FTAA is NOT bereft of a valid consideration (assuming for the nonce that
that said Administrative Order allegedly exempts FTAAs approved prior to its indeed this is the consideration of the FTAA).
effectivity -- like the WMCP FTAA -- from having to pay the State any share SUMMATION
from their mining income, apart from taxes, duties and fees.
To conclude, a summary of the key points discussed above is now in provisions to put in place safeguards that would eliminate or minimize the abuses
order. prevalent during the martial law regime. In brief, they were going to permit
service contracts with foreign corporations as contractors, but with safety
The Meaning of Agreements Involving Either Technical or Financial measures to prevent abuses, as an exception to the general norm
Assistance established in the first paragraph of Section 2 of Article XII, which reserves
Applying familiar principles of constitutional construction to the or limits to Filipino citizens and corporations at least 60 percent owned by
phrase agreements involving either technical or financial assistance, the such citizens the exploration, development and utilization of mineral or
framers choice of words does not indicate the intent to exclude other modes petroleum resources. This was prompted by the perceived insufficiency of
of assistance, but rather implies that there are other things being included or Filipino capital and the felt need for foreign expertise in the EDU of mineral
possibly being made part of the agreement, apart from financial or technical resources.
assistance. The drafters avoided the use of restrictive and stringent Despite strong opposition from some ConCom members during the final
phraseology; a verba legis scrutiny of Section 2 of Article XII of the Constitution voting, the Article on the National Economy and Patrimony -- including
discloses not even a hint of a desire toprohibit foreign involvement in the paragraph 4 allowing service contracts with foreign corporations as an
management or operation of mining activities, or to eradicate service exception to the general norm in paragraph 1 of Section 2 of the same Article
contracts. Such moves would necessarily imply an underlying drastic shift in -- was resoundingly and overwhelmingly approved.
fundamental economic and developmental policies of the State. That change
requires a much more definite and irrefutable basis than mere omission of the The drafters, many of whom were economists, academicians, lawyers,
words service contract from the new Constitution. businesspersons and politicians knew that foreign entities will not enter into
agreements involving assistance without requiring measures of protection to
Furthermore, a literal and restrictive interpretation of this paragraph leads ensure the success of the venture and repayment of their investments, loans
to logical inconsistencies. A constitutional provision specifically allowing and other financial assistance, and ultimately to protect the business
foreign-owned corporations to render financial or technical assistance in reputation of the foreign corporations. The drafters, by specifying such
respect of mining or any other commercial activity was clearly unnecessary; agreements involving assistance, necessarily gave implied assent to
the provision was meant to refer to more than mere financial or technical everything that these agreements entailed or that could reasonably be deemed
assistance. necessary to make them tenable and effective -- including management
Also, if paragraph 4 permits only agreements for financial or technical authority with respect to the day-to-day operations of the enterprise, and
assistance, there would be no point in requiring that they be based on real measures for the protection of the interests of the foreign corporation, at least
contributions to the economic growth and general welfare of the country. And to the extent that they are consistent with Philippine sovereignty over natural
considering that there were various long-term service contracts still in force resources, the constitutional requirement of State control, and beneficial
and effect at the time the new Charter was being drafted, the absence of any ownership of natural resources remaining vested in the State.
transitory provisions to govern the termination and closing-out of the then From the foregoing, it is clear that agreements involving either technical
existing service contracts strongly militates against the theory that the mere or financial assistance referred to in paragraph 4 are in fact service contracts,
omission of service contracts signaled their prohibition by the new but such new service contracts are between foreign corporations acting as
Constitution. contractors on the one hand, and on the other hand government as principal
Resort to the deliberations of the Constitutional Commission is therefore or owner (of the works), whereby the foreign contractor provides the capital,
unavoidable, and a careful scrutiny thereof conclusively shows that the technology and technical know-how, and managerial expertise in the creation
ConCom members discussedagreements involving either technical or financial and operation of the large-scale mining/extractive enterprise, and government
assistance in the same sense as service contracts and used the terms through its agencies (DENR, MGB) actively exercises full control and
interchangeably. The drafters in fact knew that the agreements with foreign supervision over the entire enterprise.
corporations were going to entail not mere technical or financial assistance Such service contracts may be entered into only with respect to minerals,
but, rather, foreign investment in and management of an enterprise for large- petroleum and other mineral oils. The grant of such service contracts is subject
scale exploration, development and utilization of minerals. to several safeguards, among them: (1) that the service contract be crafted in
The framers spoke about service contracts as the concept was understood accordance with a general law setting standard or uniform terms, conditions
in the 1973 Constitution. It is obvious from their discussions that they did not intend and requirements; (2) the President be the signatory for the government; and
to ban or eradicate service contracts. Instead, they were intent on crafting (3) the President report the executed agreement to Congress within thirty days.
Ultimate Test: Full State Control direct, and change -- the various work programs and the corresponding
minimum expenditure commitments for each of the exploration, development
To repeat, the primacy of the principle of the States sovereign ownership and utilization phases of the enterprise. Once they have been approved, the
of all mineral resources, and its full control and supervision over all aspects of contractors compliance with its commitments therein will be monitored.
exploration, development and utilization of natural resources must be upheld. Figures for mineral production and sales are regularly monitored and
But full control and supervision cannot be taken literally to mean that the State subjected to government review, to ensure that the products and by-products
controls and supervises everything down to the minutest details and makes all are disposed of at the best prices; copies of sales agreements have to be
required actions, as this would render impossible the legitimate exercise by submitted to and registered with MGB.
the contractor of a reasonable degree of management prerogative and
authority, indispensable to the proper functioning of the mining enterprise. The contractor is mandated to open its books of accounts and records for
Also, government need not micro-manage mining operations and day-to-day scrutiny, to enable the State to determine that the government share has been
affairs of the enterprise in order to be considered as exercising full control and fully paid. The State may likewise compel compliance by the contractor with
supervision. mandatory requirements on mine safety, health and environmental protection,
and the use of anti-pollution technology and facilities. The contractor is also
Control, as utilized in Section 2 of Article XII, must be taken to mean a obligated to assist the development of the mining community, and pay royalties
degree of control sufficient to enable the State to direct, restrain, regulate and to the indigenous peoples concerned. And violation of any of the FTAAs terms
govern the affairs of the extractive enterprises. Control by the State may be on and conditions, and/or non-compliance with statutes or regulations, may be
a macro level, through the establishment of policies, guidelines, regulations, penalized by cancellation of the FTAA. Such sanction is significant to a
industry standards and similar measures that would enable government contractor who may have yet to recover the tens or hundreds of millions of
to regulate the conduct of affairs in various enterprises, and restrain activities dollars sunk into a mining project.
deemed not desirable or beneficial, with the end in view of ensuring that these
enterprises contribute to the economic development and general welfare of Overall, the State definitely has a pivotal say in the operation of the
the country, conserve the environment, and uplift the well-being of the local individual enterprises, and can set directions and objectives, detect deviations
affected communities. Such a degree of control would be compatible with and non-compliances by the contractor, and enforce compliance and impose
permitting the foreign contractor sufficient and reasonable management sanctions should the occasion arise. Hence, RA 7942 and DAO 96-40 vest in
authority over the enterprise it has invested in, to ensure efficient and profitable government more than a sufficient degree of control and supervision over the
operation. conduct of mining operations.
Government Granted Full Control by RA 7942 and DAO 96-40 Section 3(aq) of RA 7942 was objected to as being unconstitutional for
allowing a foreign contractor to apply for and hold an exploration permit. During
Baseless are petitioners sweeping claims that RA 7942 and its the exploration phase, the permit grantee (and prospective contractor) is
Implementing Rules and Regulations make it possible for FTAA contracts to spending and investing heavily in exploration activities without yet being able
cede full control and management of mining enterprises over to fully foreign to extract minerals and generate revenues. The exploration permit issued
owned corporations. Equally wobbly is the assertion that the State is reduced under Sections 3(aq), 20 and 23 of RA 7942, which allows exploration but not
to a passive regulator dependent on submitted plans and reports, with weak extraction, serves to protect the interests and rights of the exploration permit
review and audit powers and little say in the decision-making of the enterprise, grantee (and would-be contractor), foreign or local. Otherwise, the exploration
for which reasons beneficial ownership of the mineral resources is allegedly works already conducted, and expenditures already made, may end up only
ceded to the foreign contractor. benefiting claim-jumpers. Thus, Section 3(aq) of RA 7942 is not
As discussed hereinabove, the States full control and supervision over unconstitutional.
mining operations are ensured through the following provisions in RA 7942: WMCP FTAA Likewise Gives the State Full Control and Supervision
Sections 8, 9, 16, 19, 24, 35[(b), (e), (f), (g), (h), (k), (l), (m) and (o)], 40, 57,
66, 69, 70, and Chapters XI and XVII; as well as the following provisions The WMCP FTAA obligates the contractor to account for the value of
of DAO 96-40: Sections7[(d) and (f)], 35(a-2), 53[(a-4) and (d)], 54, 56[(g), (h), production and sale of minerals (Clause 1.4); requires that the contractors
(l), (m) and (n)], 56(2), 60, 66, 144, 168, 171 and 270, and also Chapters XV, work program, activities and budgets be approved by the State (Clause 2.1);
XVI and XXIV. gives the DENR secretary power to extend the exploration period (Clause 3.2-
a); requires approval by the State for incorporation of lands into the contract
Through the foregoing provisions, the government agencies concerned area (Clause 4.3-c); requires Bureau of Forest Development approval for
are empowered to approve or disapprove -- hence, in a position to influence,
inclusion of forest reserves as part of the FTAA contract area (Clause 4.5); delays of more than 60 days in the governments processing and approval of
obligates the contractor to periodically relinquish parts of the contract area not submitted work programs and budgets. Clause 8.3 seeks to provide a
needed for exploration and development (Clause 4.6); requires submission of temporary, stop-gap solution in case a disagreement between the State and
a declaration of mining feasibility for approval by the State (Clause 4.6-b); the contractor (over the proposed work program or budget submitted by the
obligates the contractor to report to the State the results of its exploration contractor) should result in a deadlock or impasse, to avoid unreasonably long
activities (Clause 4.9); requires the contractor to obtain State approval for its delays in the performance of the works.
work programs for the succeeding two year periods, containing the proposed
work activities and expenditures budget related to exploration (Clause 5.1); The State, despite Clause 8.3, still has control over the contract area, and
requires the contractor to obtain State approval for its proposed expenditures it may, as sovereign authority, prohibit work thereon until the dispute is
for exploration activities (Clause 5.2); requires the contractor to submit an resolved, or it may terminate the FTAA, citing substantial breach thereof.
annual report on geological, geophysical, geochemical and other information Hence, the State clearly retains full and effective control.
relating to its explorations within the FTAA area (Clause 5.3-a); requires the Clause 8.5, which allows the contractor to make changes to approved
contractor to submit within six months after expiration of exploration period a work programs and budgets without the prior approval of the DENR secretary,
final report on all its findings in the contract area (Clause 5.3-b); requires the subject to certain limitations with respect to the variance/s, merely provides
contractor after conducting feasibility studies to submit a declaration of mining the contractor a certain amount of flexibility to meet unexpected situations,
feasibility, along with a description of the area to be developed and mined, a while still guaranteeing that the approved work programs and budgets are not
description of the proposed mining operations and the technology to be abandoned altogether. And if the secretary disagrees with the actions taken
employed, and the proposed work program for the development phase, for by the contractor in this instance, he may also resort to
approval by the DENR secretary (Clause 5.4); obligates the contractor to cancellation/termination of the FTAA as the ultimate sanction.
complete the development of the mine, including construction of the production
facilities, within the period stated in the approved work program (Clause 6.1); Clause 4.6 of the WMCP FTAA gives the contractor discretion to select
requires the contractor to submit for approval a work program covering each parts of the contract area to be relinquished. The State is not in a position to
period of three fiscal years (Clause 6.2); requires the contractor to submit substitute its judgment for that of the contractor, who knows exactly which
reports to the secretary on the production, ore reserves, work accomplished portions of the contract area do not contain minerals in commercial quantities
and work in progress, profile of its work force and management staff, and other and should be relinquished. Also, since the annual occupation fees paid to
technical information (Clause 6.3); subjects any expansions, modifications, government are based on the total hectarage of the contract area, net of the
improvements and replacements of mining facilities to the approval of the areas relinquished, the contractors self-interest will assure proper and efficient
secretary (Clause 6.4); subjects to State control the amount of funds that the relinquishment.
contractor may borrow within the Philippines (Clause 7.2); subjects to State
Clause 10.2(e) of the WMCP FTAA does not mean that the contractor
supervisory power any technical, financial and marketing issues (Clause 10.1-
can compel government to use its power of eminent domain. It contemplates
a); obligates the contractor to ensure 60 percent Filipino equity in the
a situation in which the contractor is a foreign-owned corporation, hence, not
contractor within ten years of recovering specified expenditures unless not so
qualified to own land. The contractor identifies the surface areas needed for it
required by subsequent legislation (Clause 10.1); gives the State the right to
to construct the infrastructure for mining operations, and the State then
terminate the FTAA for unremedied substantial breach thereof by the
acquires the surface rights on behalf of the former. The provision does not call
contractor (Clause 13.2); requires State approval for any assignment of the
for the exercise of the power of eminent domain (or determination of just
FTAA by the contractor to an entity other than an affiliate (Clause 14.1).
compensation); it seeks to avoid a violation of the anti-dummy law.
In short, the aforementioned provisions of the WMCP FTAA, far from
Clause 10.2(l) of the WMCP FTAA giving the contractor the right to
constituting a surrender of control and a grant of beneficial ownership of
mortgage and encumber the mineral products extracted may have been a
mineral resources to the contractor in question, vest the State with control and
result of conditions imposed by creditor-banks to secure the loan obligations
supervision over practically all aspects of the operations of the FTAA
of WMCP. Banks lend also upon the security of encumbrances on goods
contractor, including the charging of pre-operating and operating expenses,
produced, which can be easily sold and converted into cash and applied to the
and the disposition of mineral products.
repayment of loans. Thus, Clause 10.2(l) is not something out of the ordinary.
There is likewise no relinquishment of control on account of specific Neither is it objectionable, because even though the contractor is allowed to
provisions of the WMCP FTAA. Clause 8.2 provides a mechanism to prevent mortgage or encumber the mineral end-products themselves, the contractor is
the mining operations from grinding to a complete halt as a result of possible not thereby relieved of its obligation to pay the government its basic and
additional shares in the net mining revenue. The contractors ability to government share has nothing to do with taxes, duties, fees or charges. The
mortgage the minerals does not negate the States right to receive its share of portion of revenues remaining after the deduction of the basic and additional
net mining revenues. government shares is what goes to the contractor.
Clause 10.2(k) which gives the contractor authority to change its equity The basic government share and the additional government share do not
structure at any time, means that WMCP, which was then 100 percent foreign yet take into account the indirect taxes and other financial contributions of
owned, could permit Filipino equity ownership. Moreover, what is important is mining projects, which are real and actual benefits enjoyed by the Filipino
that the contractor, regardless of its ownership, is always in a position to render people; if these are taken into account, total government share increases to
the services required under the FTAA, under the direction and control of the 60 percent or higher (as much as 77 percent, and 89 percent in one instance)
government. of the net present value of total benefits from the project.
Clauses 10.4(e) and (i) bind government to allow amendments to the The third or last paragraph of Section 81 of RA 7942 is slammed for
FTAA if required by banks and other financial institutions as part of the deferring the payment of the government share in FTAAs until after the
conditions of new lendings. There is nothing objectionable here, since Clause contractor shall have recovered its pre-operating expenses, exploration and
10.4(e) also provides that such financing arrangements should in no event development expenditures. Allegedly, the collection of the States share is
reduce the contractors obligations or the governments rights under the FTAA. rendered uncertain, as there is no time limit in RA 7942 for this grace period
Clause 10.4(i) provides that government shall favourably consider any request or recovery period. But although RA 7942 did not limit the grace period, the
for amendments of this agreement necessary for the contractor to successfully concerned agencies (DENR and MGB) in formulating the 1995 and 1996
obtain financing. There is no renunciation of control, as the proviso does not Implementing Rules and Regulations provided that the period of recovery,
say that government shall automatically grant any such request. Also, it is up reckoned from the date of commercial operation, shall be for a period not
to the contractor to prove the need for the requested changes. The government exceeding five years, or until the date of actual recovery, whichever comes
always has the final say on whether to approve or disapprove such requests. earlier.
In fine, the FTAA provisions do not reduce or abdicate State control. And since RA 7942 allegedly does not require government approval for
the pre-operating, exploration and development expenses of the foreign
No Surrender of Financial Benefits contractors, it is feared that such expenses could be bloated to wipe out mining
The second paragraph of Section 81 of RA 7942 has been denounced for revenues anticipated for 10 years, with the result that the States share is zero
allegedly limiting the States share in FTAAs with foreign contractors to just for the first 10 years. However, the argument is based on incorrect information.
taxes, fees and duties, and depriving the State of a share in the after-tax Under Section 23 of RA 7942, the applicant for exploration permit is
income of the enterprise. However, the inclusion of the phrase among other required to submit a proposed work program for exploration, containing a
things in the second paragraph of Section 81 clearly and unmistakably reveals yearly budget of proposed expenditures, which the State passes upon and
the legislative intent to have the State collect more than just the usual taxes, either approves or rejects; if approved, the same will subsequently be recorded
duties and fees. as pre-operating expenses that the contractor will have to recoup over the
Thus, DAO 99-56, the Guidelines Establishing the Fiscal Regime of grace period.
Financial or Technical Assistance Agreements, spells out the financial benefits Under Section 24, when an exploration permittee files with the MGB a
government will receive from an FTAA, as consisting of not only a basic declaration of mining project feasibility, it must submit a work program for
government share, comprised of all direct taxes, fees and royalties, as well development, with corresponding budget, for approval by the Bureau, before
as other payments made by the contractor during the term of the FTAA, but government may grant an FTAA or MPSA or other mineral agreements; again,
also an additional government share, being a share in the earnings or government has the opportunity to approve or reject the proposed work
cash flows of the mining enterprise, so as to achieve a fifty-fifty sharing of program and budgeted expenditures for development works, which will
net benefits from miningbetween the government and the contractor. become the pre-operating and development costs that will have to be
The additional government share is computed using one of three (3) recovered. Government is able to know ahead of time the amounts of pre-
options or schemes detailed in DAO 99-56, viz., (1) the fifty-fifty sharing of operating and other expenses to be recovered, and the approximate period of
cumulative present value of cash flows; (2) the excess profit-related additional time needed therefor. The aforecited provisions have counterparts in Section
government share; and (3) the additional sharing based on the cumulative net 35, which deals with the terms and conditions exclusively applicable to
mining revenue. Whichever option or computation is used, the additional
FTAAs. In sum, the third or last paragraph of Section 81 of RA 7942 cannot drilling companies do not have the remotest resemblance to those of on-
be deemed defective. shore mining companies.
Section 80 of RA 7942 allegedly limits the States share in a mineral To take the position that governments share must be not less than 60
production-sharing agreement (MPSA) to just the excise tax on the mineral percent of after-tax income of FTAA contractors is nothing short of this Court
product, i.e., only 2 percent of market value of the minerals. The colatilla in dictating upon the government. The State resultantly ends up losing control. To
Section 84 reiterates the same limitation in Section 80. However, these two avoid compromising the States full control and supervision over the
provisions pertain only to MPSAs, and have no application to FTAAs. exploitation of mineral resources, there must be no attempt to impose a
These particular provisions do not come within the issues defined by minimum 60 percent rule. It is sufficient that the State has the power and
this Court. Hence, on due process grounds, no pronouncement can be means, should it so decide, to get a 60 percent share (or greater); and it is not
made in this case in respect of the constitutionality of Sections 80 and necessary that the State does so inevery case.
84.
Invalid Provisions of the WMCP FTAA
Section 112 is disparaged for reverting FTAAs and all mineral
agreements to the old license, concession or lease system, because it Section 7.9 of the WMCP FTAA clearly renders illusory the States 60
allegedly effectively reduces the government share in FTAAs to just the 2 percent share of WMCPs revenues. Under Section 7.9, should WMCPs
percent excise tax which pursuant to Section 80 comprises the government foreign stockholders (who originally owned 100 percent of the equity) sell 60
share in MPSAs. However, Section 112 likewise does not come within the percent or more of their equity to a Filipino citizen or corporation, the State
issues delineated by this Court, and was never touched upon by the parties in loses its right to receive its share in net mining revenues under Section
their pleadings. Moreover, Section 112 may not properly apply to FTAAs. The 7.7,without any offsetting compensation to the State. And what is given to the
mining law obviously meant to treat FTAAs as a breed apart from mineral State in Section 7.7 is by mere tolerance of WMCPs foreign stockholders, who
agreements. There is absolutely no basis to believe that the law intends to can at any time cut off the governments entire share by simply selling 60
exact from FTAA contractors merely the same government share (i.e., the 2 percent of WMCPs equity to a Philippine citizen or corporation.
percent excise tax) that it apparently demands from contractors under the In fact, the sale by WMCPs foreign stockholder on January 23, 2001 of
three forms of mineral agreements. the entire outstanding equity in WMCP to Sagittarius Mines, Inc., a domestic
While there is ground to believe that Sections 80, 84 and 112 are indeed corporation at least 60 percent Filipino owned, can be deemed to have
unconstitutional, they cannot be ruled upon here. In any event, they are automatically triggered the operation of Section 7.9 and removed the States
separable; thus, a later finding of nullity will not affect the rest of RA 7942. right to receive its 60 percent share. Section 7.9 of the WMCP FTAA
has effectively given away the States share without anything in exchange.
In fine, the challenged provisions of RA 7942 cannot be said to
surrender financial benefits from an FTAA to the foreign contractors. Moreover, it constitutes unjust enrichment on the part of the local and
foreign stockholders in WMCP, because by the mere act of divestment, the
Moreover, there is no concrete basis for the view that, in FTAAs with a local and foreign stockholders get a windfall, as their share in the net mining
foreign contractor, the State must receive at least 60 percent of the after-tax revenues of WMCP is automatically increased, without having to pay anything
income from the exploitation of its mineral resources, and that such share is for it.
the equivalent of the constitutional requirement that at least 60 percent of the
capital, and hence 60 percent of the income, of mining companies should Being grossly disadvantageous to government and detrimental to the
remain in Filipino hands. Even if the State is entitled to a 60 percent share from Filipino people, as well as violative of public policy, Section 7.9 must therefore
other mineral agreements (CPA, JVA and MPSA), that would not create a be stricken off as invalid. The FTAA in question does not involve mere
parallel or analogous situation for FTAAs. We are dealing with an essentially contractual rights but, being impressed as it is with public interest, the
different equation. Here we have the old apples and oranges syndrome. contractual provisions and stipulations must yield to the common good and the
national interest. Since the offending provision is very much separable from
The Charter did not intend to fix an iron-clad rule of 60 percent share, the rest of the FTAA, the deletion of Section 7.9 can be done without affecting
applicable to all situations, regardless of circumstances. There is no indication or requiring the invalidation of the entire WMCP FTAA itself.
of such an intention on the part of the framers. Moreover, the terms and
conditions of petroleum FTAAs cannot serve as standards for mineral mining Section 7.8(e) of the WMCP FTAA likewise is invalid, since by allowing
FTAAs, because the technical and operational requirements, cost the sums spent by government for the benefit of the contractor to be deductible
structures and investment needs of off-shore petroleum exploration and from the States share in net mining revenues, it results in benefiting the
contractor twice over. This constitutes unjust enrichment on the part of the the powers expressly or by implication conferred on it by the Organic
contractor, at the expense of government. For being grossly disadvantageous Act.[100] Let the development of the mining industry be the responsibility of the
and prejudicial to government and contrary to public policy, Section 7.8(e) political branches of government. And let not this Court interfere inordinately
must also be declared without effect. It may likewise be stricken off without and unnecessarily.
affecting the rest of the FTAA.
The Constitution of the Philippines is the supreme law of the land. It is the
EPILOGUE repository of all the aspirations and hopes of all the people. We fully
sympathize with the plight of Petitioner La Bugal Blaan and other tribal groups,
AFTER ALL IS SAID AND DONE, it is clear that there is unanimous and commend their efforts to uplift their communities. However, we cannot
agreement in the Court upon the key principle that the State must exercise full justify the invalidation of an otherwise constitutional statute along with its
control and supervision over the exploration, development and utilization of implementing rules, or the nullification of an otherwise legal and binding FTAA
mineral resources. contract.
The crux of the controversy is the amount of discretion to be accorded We must never forget that it is not only our less privileged brethren in
the Executive Department, particularly the President of the Republic, in tribal and cultural communities who deserve the attention of this Court; rather,
respect of negotiations over the terms of FTAAs, particularly when it comes to all parties concerned -- including the State itself, the contractor (whether
the government share of financial benefits from FTAAs. The Court believes that Filipino or foreign), and the vast majority of our citizens -- equally deserve the
it is not unconstitutional to allow a wide degree of discretion to the Chief protection of the law and of this Court. To stress, the benefits to be derived by
Executive, given the nature and complexity of such agreements, the humongous the State from mining activities must ultimately serve the great majority of our
amounts of capital and financing required for large-scale mining operations, the fellow citizens. They have as much right and interest in the proper and well-
complicated technology needed, and the intricacies of international trade, ordered development and utilization of the countrys mineral resources as the
coupled with the States need to maintain flexibility in its dealings, in order to petitioners.
preserve and enhance our countrys competitiveness in world markets.
Whether we consider the near term or take the longer view, we cannot
We are all, in one way or another, sorely affected by the recently reported overemphasize the need for an appropriate balancing of interests and
scandals involving corruption in high places, duplicity in the negotiation of needs -- the need to develop our stagnating mining industry and extract what
multi-billion peso government contracts, huge payoffs to government officials, NEDA Secretary Romulo Neri estimates is some US$840 billion (approx.
and other malfeasances; and perhaps, there is the desire to see some PhP47.04 trillion) worth of mineral wealth lying hidden in the ground, in order
measures put in place to prevent further abuse. However, dictating upon the to jumpstart our floundering economy on the one hand, and on the other, the
President what minimum share to get from an FTAA is not the solution. It need to enhance our nationalistic aspirations, protect our indigenous
sets a bad precedent since such a move institutionalizes the very reduction if communities, and prevent irreversible ecological damage.
not deprivation of the States control. The remedy may be worse than the
problem it was meant to address. In any event, provisions in such future This Court cannot but be mindful that any decision rendered in this case
agreements which may be suspected to be grossly disadvantageous or will ultimately impact not only the cultural communities which lodged the instant
detrimental to government may be challenged in court, and the culprits haled Petition, and not only the larger community of the Filipino people now
before the bar of justice. struggling to survive amidst a fiscal/budgetary deficit, ever increasing prices of
fuel, food, and essential commodities and services, the shrinking value of the
Verily, under the doctrine of separation of powers and due respect for co- local currency, and a government hamstrung in its delivery of basic services
equal and coordinate branches of government, this Court must restrain itself by a severe lack of resources, but also countless future generations of
from intruding into policy matters and must allow the President and Congress Filipinos.
maximum discretion in using the resources of our country and in securing the
assistance of foreign groups to eradicate the grinding poverty of our people For this latter group of Filipinos yet to be born, their eventual access to
and answer their cry for viable employment opportunities in the country. education, health care and basic services, their overall level of well-being, the
very shape of their lives are even now being determined and affected partly by
The judiciary is loath to interfere with the due exercise by coequal branches the policies and directions being adopted and implemented by government
of government of their official functions.[99] As aptly spelled out seven decades today. And in part by the this Resolution rendered by this Court today.
ago by Justice George Malcolm, Just as the Supreme Court, as the guardian of
constitutional rights, should not sanction usurpations by any other department Verily, the mineral wealth and natural resources of this country are meant
of government, so should it as strictly confine its own sphere of influence to to benefit not merely a select group of people living in the areas locally affected
by mining activities, but the entire Filipino nation, present and future, to whom EVELYN G. VILLEGAS, DOMINGO T. LIGOT, HENRY E. LARON,
the mineral wealth really belong. This Court has therefore weighed carefully PASTOR M. DALMACION, JR., and, JULIUS NORMAN C.
the rights and interests of all concerned, and decided for the greater good of CERRADA, petitioners,
the greatest number. JUSTICE FOR ALL, not just for some; JUSTICE FOR vs
THE PRESENT AND THE FUTURE, not just for the here and now. COMMISSIONER OF INTERNAL REVENUE, respondent.
WHEREFORE, the Court RESOLVES to GRANT the respondents and Rene B. Gorospe, Leighton R. Siazon, Manuel M. Sunga, Bienvinido T.
the intervenors Motions for Reconsideration; to REVERSE and SET Jamoralin, Jr and Paul D. Ungos for petitioners.
ASIDE this Courts January 27, 2004 Decision; to DISMISS the Petition; and to
issue this new judgment declaring CONSTITUTIONAL (1) Republic Act No.
7942 (the Philippine Mining Law), (2) its Implementing Rules and Regulations PADILLA, J.:
contained in DENR Administrative Order (DAO) No. 9640 -- insofar as they
relate to financial and technical assistance agreements referred to in These consolidated cases are petitions for mandamus and prohibition,
paragraph 4 of Section 2 of Article XII of the Constitution; and (3) the Financial premised upon the following undisputed facts:
and Technical Assistance Agreement (FTAA) dated March 30, 1995 executed
by the government and Western Mining Corporation Philippines Inc. (WMCP), Congress enacted Rep. Act 7167, entitled "AN ACT ADJUSTING THE BASIC
except Sections 7.8 and 7.9 of the subject FTAA which are hereby PERSONAL AND ADDITIONAL EXEMPTIONS ALLOWABLE TO
INVALIDATED for being contrary to public policy and for being grossly INDIVIDUALS FOR INCOME TAX PURPOSES TO THE POVERTY
disadvantageous to the government. THRESHOLD LEVEL, AMENDING FOR THE PURPOSE SECTION 29,
PARAGRAPH (L), ITEMS (1) AND (2) (A) OF THE NATIONAL INTERNAL
SO ORDERED. REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES." It
Davide Jr., C.J., Sandoval-Gutierrez, Austria-Martinez, and Garcia, provides as follows:
JJ., concur.
Puno, J., in the result and votes to invalidate sections 3.3; 7.8 and 7.9 of Sec. (1). The first paragraph of item (1), paragraph (1) of
the WMC FTAA. Section 29 of the National Internal Revenue Code, as
Quisumbing, J., in the result. amended, is hereby further amended to read as follows:
Ynares-Santiago, J., joins dissenting opinion of J. Antonio Carpio & J.
Conchita C. Morales. (1) Personal Exemptions allowable to individuals (1) Basic
Carpio, and Carpio-Morales, JJ., see dissenting opinion. personal exemption as follows:
Corona, J., certifies he voted affirmatively with the majority and he was
allowed to do so although he is on leave. For single individual or married individual
Callejo, Sr., J., concurs to the dissenting opinion of J. Carpio. judicially decreed as legally separated with
Azcuna, J., took no part-same reason. no qualified dependents P9,000
Tinga, and Chico-Nazario, JJ., concur with a separate opinion.
G.R. No. 104037 May 29, 1992 For head of a family P12,000
(a) Taxpayers with dependents. A married individual or a head of Sec. 5. EFFECTIVITY. These regulations shall take effect on
family shall be allowed an additional exemption of Five Thousand compensation income from January 1, 1992.
Pesos (P5,000) for each dependent: Provided, That the total number
of dependents for which additional exemptions may be claimed shall On 27 February 1992, the petitioner in G.R. No. 104037, a taxpayer and a
not exceed four dependents: Provided, further, That an additional resident of Gitnang Bayan Bongabong, Oriental Mindoro, filed a petition
exemption of One Thousand Pesos (1,000) shall be allowed for each for mandamus for himself and in behalf all individual Filipino taxpayers, to
child who otherwise qualified as dependent prior to January 1, COMPEL the respondents to implement Rep. Act 7167 with respect to taxable
1980: Provided, finally, That the additional exemption for dependents income of individual taxpayers earned or received on or after 1 January 1991
shall be claimed by only one of the spouses in case of married or as of taxable year ending 31 December 1991.
individuals electing to compute their income tax liabilities separately.
On 28 February 1992, the petitioners in G.R. No. 104069 likewise filed a
Sec. 3. This act shall take effect upon its approval. petition for mandamus and prohibition on their behalf as well as for those other
individual taxpayers who might be similarly situated, to compel the
Approved. 1 Commissioner of Internal Revenue to implement the mandate of Rep. Act 7167
adjusting the personal and additional exemptions allowable to individuals for
The said act was signed and approved by the President on 19 December 1991 income tax purposes in regard to income earned or received in 1991, and to
and published on 14 January 1992 in "Malaya" a newspaper of general enjoin the respondents from implementing Revenue Regulations No. 1-92.
circulation.
In the Court's resolution of 10 March 1992, these two (2) cases were
On 26 December 1991, respondents promulgated Revenue Regulations No. consolidated. Respondents were required to comment on the petitions, which
1-92, the pertinent portions of which read as follows: they did within the prescribed period.
Sec. 1. SCOPE Pursuant to Sections 245 and 72 of the National The principal issues to be resolved in these cases are: (1) whether or not Rep.
Internal Revenue Code in relation to Republic Act No. 7167, these Act 7167 took effect upon its approval by the President on 19 December 1991,
Regulations are hereby promulgated prescribing the collection at or on 30 January 1992, i.e., after fifteen (15) days following its publication on
source of income tax on compensation income paid on or after 14 January 1992 in the "Malaya" a newspaper of general circulation; and (2)
January 1, 1992 under the Revised Withholding Tax Tables (ANNEX assuming that Rep. Act 7167 took effect on 30 January 1992, whether or not
"A") which take into account the increase of personal and additional the said law nonetheless covers or applies to compensation income earned or
exemptions. received during calendar year 1991.
xxx xxx xxx In resolving the first issue, it will be recalled that the Court in its resolution
in Caltex (Phils.), Inc. vs. The Commissioner of Internal Revenue, G.R. No.
97282, 26 June 1991 which is on all fours with this case as to the first issue
Sec. 3. Section 8 of Revenue Regulations No. 6-82 is amended by
held:
Revenue Regulations No. 1-86 is hereby further amended to read as
follows:
The central issue presented in the instant petition is the effectivity of
R.A. 6965 entitled "An Act Revising The Form of Taxation on
Section 8. Right to claim the following exemptions. . . .
Petroleum Products from Ad Valorem to Specific, Amending For the
Purpose Section 145 of the National Internal Revenue Code, As
Each employee shall be allowed to claim the following amount of amended by Republic Act Numbered Sixty Seven Hundred Sixty
exemption with respect to compensation paid on or after January 1, Seven."
1992.
Sec. 3 of R.A. 6965 contains the effectivity clause which provides. Coming now to the second issue, the Court is of the considered view that Rep.
"This Act shall take effect upon its approval" Act 7167 should cover or extend to compensation income earned or received
during calendar year 1991.
R.A. 6965 was approved on September 19, 1990. It was published in
the Philippine Journal, a newspaper of general circulation in the Sec. 29, par. (L), Item No. 4 of the National Internal Revenue Code, as
Philippines, on September 20, 1990. Pursuant to the Act, an amended, provides:
implementing regulation was issued by the Commissioner of Internal
Revenue, Revenue Memorandum Circular 85-90, stating that R.A. Upon the recommendation of the Secretary of Finance, the President
6965 took effect on October 5, 1990. Petitioner took exception thereof shall automatically adjust not more often than once every three years,
and argued that the law took effect on September 20, 1990 instead. the personal and additional exemptions taking into account, among
others, the movement in consumer price indices, levels of minimum
Pertinent is Article 2 of the Civil Code (as amended by Executive Order wages, and bare subsistence levels.
No. 200) which provides:
As the personal and additional exemptions of individual taxpayers were last
Art. 2. Laws shall take effect after fifteen days following the completion adjusted in 1986, the President, upon the recommendation of the Secretary of
of their publication either in the official Gazette or in a newspaper of Finance, could have adjusted the personal and additional exemptions in
general circulation in the Philippines, unless it is otherwise provided. . 1989 by increasing the same even without any legislation providing for such
.. adjustment. But the President did not.
In the case of Tanada vs. Tuvera (L-63915, December 29, 1986, 146 However, House Bill 28970, which was subsequently enacted by Congress as
SCRA 446, 452) we construed Article 2 of the Civil Code and laid down Rep. Act 7167, was introduced in the House of Representatives in
the rule: 1989 although its passage was delayed and it did not become effective law
until 30 January 1992. A perusal, however, of the sponsorship remarks of
. . .: the) clause "unless it is otherwise provided" refers to the date of Congressman Hernando B. Perez, Chairman of the House Committee on
effectivity and not to the requirement of publication itself, which cannot Ways and Means, on House Bill 28970, provides an indication of the intent of
in any event be omitted. This clause does not mean that the legislator Congress in enacting Rep. Act 7167. The pertinent legislative journal contains
may make the law effective immediately upon approval, or on any the following:
other date without its previous publication.
At the outset, Mr. Perez explained that the Bill Provides for increased
Publication is indispensable in every case, but the legislature may in personal additional exemptions to individuals in view of the higher
its discretion provide that the usual fifteen-day period shall be standard of living.
shortened or extended. . . .
The Bill, he stated, limits the amount of income of individuals subject
Inasmuch as R.A. 6965 has no specific date for its effectivity and to income tax to enable them to spend for basic necessities and have
neither can it become effective upon its approval notwithstanding its more disposable income.
express statement, following Article 2 of the Civil Code and the
doctrine enunciated in Tanada,supra, R.A. 6965 took effect fifteen xxx xxx xxx
days after September 20, 1990, or specifically, on October 5, 1990.
Mr. Perez added that inflation has raised the basic necessities and
Accordingly, the Court rules that Rep. Act 7167 took effect on 30 January that it had been three years since the last exemption adjustment in
1992, which is after fifteen (15) days following its publication on 14 January 1986.
1992 in the "Malaya."
xxx xxx xxx
Subsequently, Mr. Perez stressed the necessity of passing the retroactive in purport and effect, language that would have to authorize the
measure to mitigate the effects of the current inflation and of the payment of refunds of taxes paid on 15 April 1991 and 15 July 1991: such
implementation of the salary standardization law. Stating that it is language is simply not found in Rep. Act 7167.
imperative for the government to take measures to ease the burden of
the individual income tax filers, Mr. Perez then cited specific examples The personal exemptions as increased by Rep. Act 7167 cannot be regarded
of how the measure can help assuage the burden to the taxpayers. as available only in respect of compensation income received during 1992, as
the implementing Revenue Regulations No. 1-92 purport to provide. Revenue
He then reiterated that the increase in the prices of commodities has Regulations No. 1-92 would in effect postpone the availability of the increased
eroded the purchasing power of the peso despite the recent salary exemptions to 1 January-15 April 1993, and thus literally defer the effectivity
increases and emphasized that the Bill will serve to compensate the of Rep. Act 7167 to 1 January 1993. Thus, the implementing regulations collide
adverse effects of inflation on the taxpayers. . . . (Journal of the House frontally with Section 3 of Rep. Act 7167 which states that the statute "shall
of Representatives, May 23, 1990, pp. 32-33). take effect upon its approval." The objective of the Secretary of Finance and
the Commissioner of Internal Revenue in postponing through Revenue
It will also be observed that Rep. Act 7167 speaks of the adjustments that it Regulations No. 1-92 the legal effectivity of Rep. Act 7167 is, of course, entirely
provides for, as adjustments "to the poverty threshold level." Certainly, "the understandable to defer to 1993 the reduction of governmental tax
poverty threshold level" is the poverty threshold level at the time Rep. Act 7167 revenues which irresistibly follows from the application of Rep. Act 7167. But
was enacted by Congress, not poverty threshold levels in futuro, at which time the law-making authority has spoken and the Court can not refuse to apply the
there may be need of further adjustments in personal exemptions. Moreover, law-maker's words. Whether or not the government can afford the drop in tax
the Court can not lose sight of the fact that these personal and additional revenues resulting from such increased exemptions was for Congress (not this
exemptions are fixed amounts to which an individual taxpayer is entitled, as a Court) to decide.
means to cushion the devastating effects of high prices and a depreciated
purchasing power of the currency. In the end, it is the lower-income and the WHEREFORE, Sections 1, 3 and 5 of Revenue Regulations No. 1-92 which
middle-income groups of taxpayers (not the high-income taxpayers) who stand provide that the regulations shall take effect on compensation income earned
to benefit most from the increase of personal and additional exemptions or received from 1 January 1992 are hereby SET ASIDE. They should take
provided for by Rep. Act 7167. To that extent, the act is a social legislation effect on compensation income earned or received from 1 January 1991.
intended to alleviate in part the present economic plight of the lower income
taxpayers. It is intended to remedy the inadequacy of the heretofore existing Since this decision is promulgated after 15 April 1992, the individual taxpayers
personal and additional exemptions for individual taxpayers. entitled to the increased exemptions on compensation income earned during
calendar year 1991 who may have filed their income tax returns on or before
And then, Rep. Act 7167 says that the increased personal exemptions that it 15 April 1992 (later extended to 24 April 1992) without the benefit of such
provides for shall be available thenceforth, that is, after Rep. Act 7167 shall increased exemptions, are entitled to the corresponding tax refunds and/or
have become effective. In other words, these exemptions are available upon credits, and respondents are ordered to effect such refunds and/or credits. No
the filing of personal income tax returns which is, under the National Internal costs.
Revenue Code, done not later than the 15th day of April after the end of a
calendar year. Thus, under Rep. Act 7167, which became effective, as SO ORDERED.
aforestated, on 30 January 1992, the increased exemptions are literally
available on or before 15 April 1992 (though not before 30 January 1992). But
Narvasa, C.J., Gutierrez, Jr., Feliciano, Bidin, Grio-Aquino, Medialdea,
these increased exemptions can be available on 15 April 1992 only in respect
Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.
of compensation income earned or received during the calendar year 1991.
Separate Opinions
The personal exemptions as increased by Rep. Act 7167 cannot be regarded
as available in respect of compensation income received during
the 1990 calendar year; the tax due in respect of said income had already PARAS, J., concurring and dissenting:
accrued, and been presumably paid, by 15 April 1991 and by 15 July 1991, at
which time Rep. Act 7167 had not been enacted. To make Rep. Act 7167 refer I wish to concur with the majority opinion penned in this case by Justice
back to income received during 1990 would require language explicitly Teodoro Padilla, because I believe that the tax exemptions referred to in the
law should be effective already with respect to the income earned for the year December, 1991, its subsequent publication in the January 1992 issue of the
1991. After all, even if We say that the law became effective only in 1992, still Civil Code is actually immaterial." I confess I am profoundly bemused.
this can refer only to the income obtained in 1991 since after all, what should
be filed in 1992 is the income tax return of the income earned in 1991. [G.R. No. 115068. November 28, 1996]
FORTUNE MOTORS (PHILS.) INC., petitioner,
However, I wish to dissent from the part of the decision which affirms the obiter vs.
dictum enunciated in the case of Tanada vs. Tuvera (146 SCRA 446, 452) to METROPOLITAN BANK AND TRUST COMPANY, and THE COURT OF
the effect that a law becomes effective not on the date expressly provided for APPEALS, respondents.
in said law, but on the date after fifteen (15) days from the publication in the
Official Gazette or any national newspaper of general circulation. I say obiter DECISION
dictum because the doctrine mentioned is not the actual issue in the case
of Tanada vs. Tuvera (supra). In that case, several presidential decrees of HERMOSISIMA, JR., J.:
President Marcos were issued, but they were never published in the Official
Gazette or in any national newspaper of general circulation. The real issue Before us is a petition for review of the decision of the Court of Appeals
therefore in said case was whether or not said presidential decrees ever in CA-G.R. CV No. 38340 entitled Fortune Motors (Phils.) Inc., v. Metropolitan
became effective. The Court ruled with respect to this issue (and not any other Bank and Trust Company et al.[1]The appellate courts decision reversed the
issue since there was no other issue whatsoever), that said presidential decision in Civil Case No. 89-5637 of Branch 150 of the Regional trial Court of
decrees never became effective. In other words, the ratio decidendiin that case Makati City.
was the ruling that without publication, there can be no effectivity. Thus, the
It appears that Fortune Motors (Phils.) Inc. obtained the following loans
statement as to which should be applied "after fifteen (15) days from
from the Metropolitan Bank and Trust company: (1) P20 Million, on March 31,
publication" or "unless otherwise provided by law" (Art. 2, Civil Code) was
1982; (2) P8 Million, on April 30, 1983; (3) P2,500,000.00, on June 8,
mere obiter. The subsequent ruling in the resolution dated June 26, 1991 in
1983 and; (4) P3 Million, on August 16, 1983.
Caltex, Inc. vs. Com. of Internal Revenue cannot likewise apply because it was
based on the aforesaid obiter in Tanada v. Tuvera (supra). In the instant tax On January 6, 1984, respondent bank consolidated the loans of P8 Million
exemptions case, the law says effective upon approval, therefore, since this and P3 Million into one promissory note, which amounted
law was approved by the President in December, 1991, its subsequent to P12,650,000.00. This included the interest that had accrued thereon in the
publication in the January 1992 issue of the Civil Code is actually immaterial. amount of P1,650,000.00.
To secure the obligation in the total amount of P34,150,000.00, petitioner
Art. 2 of the Civil Code which states:
mortgaged certain real estate in favor of respondent bank.
Laws shall take effect after fifteen days following the completion of Due to financial constraints, petitioner failed to pay the loan upon
their publication in the Official Gazette, unless it is otherwise provided. maturity. Consequently on May 25, 1984, respondent bank initiated
This Code shall take effect one year after such publication. extrajudicial foreclosure proceedings and in effect, foreclosed the real estate
mortgage.
It is very clear and needs no interpretation or construction. The extrajudicial foreclosure was actually conducted by Senior Deputy
Sheriff Pablo Y. Sy who had sent copies of the Notice of Extrajudicial Sale to
CRUZ. J., concurring: the opposing parties by registered mail. In accordance with law, he posted
copies of the Notice of Sheriffs Sale at three conspicuous public places
As the ponente of Taada v. Tuvera, 146 SCRA 446, I should like to make in Makati -- the office of the Sheriff, the Assessors office and the Register of
these brief observations on my brother Paras's separate opinion. He says that Deeds in Makati. He thereafter executed the Certificates of Posting on May
"the ratio decidendi in that case was the ruling that without publication, there 20, 1984. The said notice was in fact published on June 2, 9 and 16, 1984 in
can be no effectivity." Yet, while accepting this, he contends that, pursuant to three issues of The New Record. An affidavit of publication, dated June 19,
its terms, R.A. 7167 became effective upon approval (i.e., even without 1984,[2] was executed by Teddy F. Borres, publisher of the said newspaper.
publication). He adds that "since this law was approved by the President in
Subsequently, the mortgaged property was sold at public auction
for P47,899,264.91 to the mortgagee bank, the highest bidder.
Petitioner failed to redeem the mortgaged property within the one-year It further contends that the population that can be reached by the Daily
redemption period and so, the titles thereto were consolidated in the name of Record is only .004% as its circulation in Makati in 1984, was 1000 to 1500
respondent bank by which token the latter was entitled to the possession of per week. Hence, it concludes that only 1648 out of a population of 412,069
the property mortgaged and, in fact possessed the same. were probable readers of the Daily Record, and that this is not the standard
contemplated by law when it refers to a newspaper of general circulation.
Petitioner then filed a complaint for the annulment of the extrajudicial
foreclosure, which covered TCT Nos. 461087, 432685, 457590, 432684, S- In the case of Bonnevie v. Court of Appeals,[8] we had already made a
54185, S-54186, S-54187, and S-54188. ruling on this point:
On December 27, 1991, the trial court rendered judgment annulling the The argument that the publication of the notice in the Luzon Weekly
extrajudicial foreclosure of the mortgage. Courier was not in accordance with law as said newspaper is not of
general circulation must likewise be disregarded. The affidavit of
On May 14, 1992, an appeal was interposed by the respondent to the publication, executed by the publisher, business/advertising manager of
Court of Appeals. Acting thereon, the Court of Appeals reversed the decision the Luzon Weekly Courier, states that it is a newspaper of general
rendered by the lower court. Subsequently, the motion for Reconsideration circulation in x x x Rizal; and that the notice of Sheriffs sale was
filed by petitioner was denied on April 26, 1994. published in said paper on June 30, July 7 and July 14, 1968. This
Aggrieved by the decision rendered by the Court of appeals, petitioner constitutes prima facie evidence of compliance with the requisite
appealed before this Court. On May 30, 1994, however, we issued a publication. (Sadang v. GSIS, 18 SCRA 491).
Resolution denying said petition. Hence, this motion for reconsideration. To be a newspaper of general circulation, it is enough that it is published
Petitioner raises the following issues before us, to wit: for the dissemination of local news and general information; that it has a
bona fide subscription list of paying subscribers; that it is published at
I regular intervals. (Basa v. Mercado, 61 Phil. 632). The newspaper need
not have the largest circulation so long as it is of general circulation.
THAT THE COURT OF APPEALS ERRED IN DECLARING THAT
(Banta v. Pacheco, 74 Phil. 67).
THE PUBLICATION OF THE NOTICE OF EXTRAJUDICIAL
FORECLOSURE WAS VALID.[3] In the case at bench, there was sufficient compliance with the
requirements of the law regarding publication of the notice in a newspaper of
II
general circulation. This is evidenced by the affidavit of publication executed
THAT THE RESPONDENT COURT OF APPEALS ERRED IN by the New Records publisher, Teddy F. Borres, which stated that it is a
DECLARING THAT THE NOTICES OF EXTRAJUDICIAL newspaper edited in Manila and Quezon City and of general circulation in the
FORECLOSURE, AND SALE WERE DULY RECEIVED BY THE cities of Manila, Quezon City et al., and in the Provinces of Rizal xxx, published
PETITIONER.[4] every Saturday by the Daily Record, Inc. This was affirmed by Pedro Deyto,
who was the executive editor of the said newspaper and who was a witness
III for petitioner. Deyto testified: a) that the New Record contains news; b) that it
THAT THE COURT OF APPEALS ERRED IN FAILING TO has subscribers from Metro Manila and from all over the Philippines; c) that it
ADJUDGE THE IRREGULARITIES IN THE BIDDING, POSTING, is published once a week or four times a month ; and d) that he had been
PUBLICATION, AND THE SALE OF FORTUNEBUILDING.[5] connected with the said paper since 1958, an indication that the said
newspaper had been in existence even before that year.[9]
IV
Another contention posited by petitioner is that the New Record is
THAT THE RESPONDENT COURT OF APPEALS ERRED IN published and edited in Quezon City and not in Makati where the foreclosed
RENDERING A JUDGMENT BASED ON PRESUMPTION.[6] property is situated, and that, when New Records publisher enumerated the
places where said newspaper is being circulated, Makati was not mentioned.
Petitioner contends that the newspaper Daily Record[7] where the notice
of extrajudicial foreclosure was published does not qualify as a newspaper of This contention of petitioner is untenable. In 1984, when the publishers
general circulation. affidavit relied upon by petitioner was executed, Makati, Mandaluyong, San
Juan, Paraaque et. al., were still part of the province of Rizal. Apparently, this
is the reason why in the New Records affidavit of publication executed by its
publisher, the enumeration of the places where it was being circulated, only The said provision of the law is clear as to who should personally
the cities of Manila, Quezon, Caloocan, Pasay, Tagaytay, et. al., were distribute the judicial notices or advertisements to qualified newspapers for
named. Furthermore, as aptly ratiocinated by the Court of Appeals: publication. There was a substantial compliance with the requirements when
it was the Executive Judge of the Regional Trial Court of Makati who caused
The application given by the trial court to the provisions of P.D. No. 1079 the publication of the said notice by the newspaper selected by means of raffle.
is, to our mind, too narrow and restricted and could not have been the
intention of the said law. Were the interpretation of the trial court (sic) to With regard to the second assigned error wherein petitioner claims that it
be followed, even the leading dailies in the country like the Manila did not personally receive the notices of extrajudicial foreclosure and sale
Bulletin, the Philippine Daily Inquirer, or The Philippine Star which all supposedly sent to it by Metrobank, we find the same unmeritorious.
enjoy a wide circulation throughout the country, cannot publish legal
notices that would be honored outside the place of their publication. But Settled is the rule that personal notice to the mortgagor in extrajudicial
this is not the interpretation given by the courts. For what is important is foreclosure proceedings is not necessary. Section 3 of Act No. 3135 governing
that a paper should be in general circulation in the place where the extrajudicial foreclosure of real estate mortgages, as amended by Act No.
properties to be foreclosed are located in order that publication may serve 4118, requires only the posting of the notice of sale in three public places and
the purpose for which it was intended.[10] the publication of that notice in a newspaper of general circulation.It is pristine
clear from the above provision that the lack of personal notice to the
Petitioner also claims that the New Record is not a daily newspaper mortgagor, herein petitioner, is not a ground to set aside the foreclosure
because it is published only once a week. sale.[12]
A perusal of Presidential Decree (P.D.) No. 1079 and Act 3135 shows Petitioners expostulation that it did not receive the mailed notice to it of
that the said laws do not require that the newspaper which publishes judicial the sale of the mortgaged property should be brushed aside. The fact that
notices should be a daily newspaper.Under P.D. 1079, for a newspaper to respondent was able to receive the registry return card from the mail in regular
qualify, it is enough that it be a newspaper or periodical which is authorized by course shows that the postal item presented by the return card had been
law to publish and which is regularly published for at least one (1) year before received by the addressee. Otherwise, as correctly contended by respondent,
the date of publication which requirement was satisfied by New Record. Nor is the mailed item should have been stamped Returned to Sender, still sealed
there a requirement, as stated in the said law, that the newspaper should have with all the postal markings, and the return card still attached to it.
the largest circulation in the place of publication.
As to the contention that the signature appearing on the registry return
Petitioner claims that, when its representative went to a newspaper stand card receipt appears to be only a dot and that the photostat copy does not
to look for a copy of the new Record, he could not find any. This allegation can contain a signature at all we find, after a close scrutiny of the registry return
not be made a basis to conclude that the newspaper New Record is not of card, that there are strokes before and after the dot. These strokes appear to
general circulation. By its own admission, petitioners representative was be a signature which signifies: a) that the registry claim card was received at
looking for a newspaper named Daily Record. Naturally, he could not find a the given address; b) that the addressee had authorized a person to present
newspaper by that name as the newspapers name is New Record and not the claim card at the post office and receive the registered mail matter; and c)
Daily Record. Although it is the Daily Record Inc. which publishes the New that the authorized person signed the return card to acknowledge his receipt
Record, it does not mean that the name of the newspaper is Daily Record. of the mail matter. Even the trial court in its decision ruled that:
Petitioner contends that, since it was the Executive Judge who caused x x x the Court finds no cogent reason to overcome the presumption that
the publication of the notice of the sale and not the Sheriff, the extrajudicial Sheriff Pablo Sy performed his task regularly and in accordance with the
foreclosure of the mortgage should be deemed annulled. rules. A closer look at the assailed xerox copy of the registry receipt and
the original form which said xerox was admittedly copied would indeed
Petitioners contention in this regard is bereft of merit, because Sec. 2 of show that the xerox is not a faithful reproduction of the original since it
P.D. No. 1079 clearly provides that: does not bear the complete signature of the addressee as appearing on the
The executive judge of the court of first instance shall designate a regular original. It does not, however, follow that the xerox is a forgery. The same
working day and a definite time each week during which the said judicial bears slight traces of the signature appearing on the original but, there is
notices or advertisements shall be distributed personally by him[11] for no indication that the one was altered to conform to the other. Rather,
publication to qualified newspapers or periodicals xxx, which distribution there must have been only a misprint of the xerox but not amounting to
shall be done by raffle. any attempt to falsify the same.[13]
Petitioner also claims that it had transferred to a different location but the
notice was sent to its old address. Petitioner failed to notify respondent of its
supposed change of address.Needless to say, it can be surmised that
respondent had sent the notice to petitioners official address.
Anent its third assigned error, petitioner assails the posting of the notices
of sale by the Sheriff in the Office of the Sheriff, Office of the Assessor and the
Register of Deeds as these are not the conspicuous public places required by
law. Furthermore, it also questions the non-posting of the notice of sale on the
property itself which was to be sold.
Apparently, this assigned error of petitioner is tantamount to a last ditch
effort to extricate itself from the quagmire it is in. Act 3135 does not require
posting of the notice of sale on the mortgaged property. Section 3 of the said
law merely requires that the notice of the sale be posted for not less than
twenty days in at least three public places of the municipality or city where the
property is situated. The aforementioned places, to wit: the Sheriffs Office, the
Assessors Office and the Register of Deeds are certainly the public places
contemplated by law, as these are places where people interested in
purchasing real estate congregate.
With regard to the fourth assigned error of petitioner, we do not subscribe
to the latters view that the decision of the Court of Appeals was mainly based
on the presumption of the regularity of the performance of official function of
the officers involved. A perusal of the records indubitably shows that the
requirement of Act No. 3135 on the extrajudicial foreclosure of real estate
mortgage had been duly complied with by Senior Deputy Sheriff Sy.
WHEREFORE, the petition is DENIED and the decision rendered in CA-
G.R. CV No. 38340 is hereby AFFIRMED.
SO ORDERED.
Padilla, (Chairman), Bellosillo, Vitug, and Kapunan, JJ., concur.