Part 2 Cases

G.R. Nos.
171947-48 February 15, 2011
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT

AND NATURAL RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND
SPORTS,1 DEPARTMENT OF HEALTH, DEPARTMENT OF AGRICULTURE, DEPARTMENT OF
PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF BUDGET AND MANAGEMENT,
PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME GROUP, and
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, Petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS,
SABINIANO ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEÑA, PAUL DENNIS
QUINTERO, MA. VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA,
FRITZIE TANGKIA, SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS BOBIS, FELIMON
SANTIAGUEL, and JAIME AGUSTIN R. OPOSA,Respondents.
RESOLUTION
VELASCO, JR., J.:
On December 18, 2008, this Court rendered a Decision in G.R. Nos. 171947-48 ordering petitioners
to clean up, rehabilitate and preserve Manila Bay in their different capacities. The fallo reads:
WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV
No. 76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No.
1851-99 are AFFIRMED but with MODIFICATIONS in view of subsequent developments or
supervening events in the case. The fallo of the RTC Decision shall now read:
WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government

agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to SB
level (Class B sea waters per Water Classification Tables under DENR Administrative Order No. 34
[1990]) to make them fit for swimming, skin-diving, and other forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for
the conservation, management, development, and proper use of the country’s environment
and natural resources, and Sec. 19 of RA 9275, designating the DENR as the primary
government agency responsible for its enforcement and implementation, the DENR is directed
to fully implement its Operational Plan for the Manila Bay Coastal Strategy for the
rehabilitation, restoration, and conservation of the Manila Bay at the earliest possible time. It
is ordered to call regular coordination meetings with concerned government departments and
agencies to ensure the successful implementation of the aforesaid plan of action in accordance
with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25
of the Local Government Code of 1991, the DILG, in exercising the President’s power of
general supervision and its duty to promulgate guidelines in establishing waste management
programs under Sec. 43 of the Philippine Environment Code (PD 1152), shall direct all LGUs
in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all
factories, commercial establishments, and private homes along the banks of the major river
systems in their respective areas of jurisdiction, such as but not limited to the Pasig-Marikina-
San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-
Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and
waterways that eventually discharge water into the Manila Bay; and the lands abutting the bay,
to determine whether they have wastewater treatment facilities or hygienic septic tanks as
prescribed by existing laws, ordinances, and rules and regulations. If none be found, these
LGUs shall be ordered to require non-complying establishments and homes to set up said
facilities or septic tanks within a reasonable time to prevent industrial wastes, sewage water,
and human wastes from flowing into these rivers, waterways, esteros, and the Manila Bay,
under pain of closure or imposition of fines and other sanctions.
(3) As mandated by Sec. 8 of RA 9275, the MWSS is directed to provide, install, operate, and
maintain the necessary adequate waste water treatment facilities in Metro Manila, Rizal, and
Cavite where needed at the earliest possible time.
(4) Pursuant to RA 9275, the LWUA, through the local water districts and in coordination with
the DENR, is ordered to provide, install, operate, and maintain sewerage and sanitation
facilities and the efficient and safe collection, treatment, and disposal of sewage in the
provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan where needed at the earliest
possible time.
(5) Pursuant to Sec. 65 of RA 8550, the DA, through the BFAR, is ordered to improve and
restore the marine life of the Manila Bay. It is also directed to assist the LGUs in Metro Manila,
Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing, using recognized
methods, the fisheries and aquatic resources in the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in
accordance with Sec. 124 of RA 8550, in coordination with each other, shall apprehend
violators of PD 979, RA 8550, and other existing laws and regulations designed to prevent
marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 513 and the International Convention for the Prevention
of Pollution from Ships, the PPA is ordered to immediately adopt such measures to prevent
the discharge and dumping of solid and liquid wastes and other ship-generated wastes into
the Manila Bay waters from vessels docked at ports and apprehend the violators.
(8) The MMDA, as the lead agency and implementor of programs and projects for flood control
projects and drainage services in Metro Manila, in coordination with the DPWH, DILG, affected
LGUs, PNP Maritime Group, Housing and Urban Development Coordinating Council
(HUDCC), and other agencies, shall dismantle and remove all structures, constructions, and
other encroachments established or built in violation of RA 7279, and other applicable laws
along the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers,
the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros in
Metro Manila. The DPWH, as the principal implementor of programs and projects for flood
control services in the rest of the country more particularly in Bulacan, Bataan, Pampanga,
Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP Maritime Group,
HUDCC, and other concerned government agencies, shall remove and demolish all structures,
constructions, and other encroachments built in breach of RA 7279 and other applicable laws
along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus
(Cavite) River, the Laguna De Bay, and other rivers, connecting waterways, and esteros that
discharge wastewater into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as
prescribed by RA 9003, within a period of one (1) year from finality of this Decision. On matters
within its territorial jurisdiction and in connection with the discharge of its duties on the
maintenance of sanitary landfills and like undertakings, it is also ordered to cause the
apprehension and filing of the appropriate criminal cases against violators of the respective
penal provisions of RA 9003, Sec. 27 of RA 9275 (the Clean Water Act), and other existing
laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1)
year from finality of this Decision, determine if all licensed septic and sludge companies have
the proper facilities for the treatment and disposal of fecal sludge and sewage coming from
septic tanks. The DOH shall give the companies, if found to be non-complying, a reasonable
time within which to set up the necessary facilities under pain of cancellation of its
environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA 8550, and Sec. 56 of RA 9003, the
DepEd shall integrate lessons on pollution prevention, waste management, environmental
protection, and like subjects in the school curricula of all levels to inculcate in the minds and
hearts of students and, through them, their parents and friends, the importance of their duty
toward achieving and maintaining a balanced and healthful ecosystem in the Manila Bay and
the entire Philippine archipelago.
(11) The DBM shall consider incorporating an adequate budget in the General Appropriations
Act of 2010 and succeeding years to cover the expenses relating to the cleanup, restoration,
and preservation of the water quality of the Manila Bay, in line with the country’s development
objective to attain economic growth in a manner consistent with the protection, preservation,
and revival of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG,
PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of
"continuing mandamus," shall, from finality of this Decision, each submit to the Court a
quarterly progressive report of the activities undertaken in accordance with this Decision.
SO ORDERED.
The government agencies did not file any motion for reconsideration and the Decision became final in
January 2009.
The case is now in the execution phase of the final and executory December 18, 2008 Decision. The
Manila Bay Advisory Committee was created to receive and evaluate the quarterly progressive reports
on the activities undertaken by the agencies in accordance with said decision and to monitor the
execution phase.
In the absence of specific completion periods, the Committee recommended that time frames be set
for the agencies to perform their assigned tasks. This may be viewed as an encroachment over the
powers and functions of the Executive Branch headed by the President of the Philippines.
This view is misplaced.
The issuance of subsequent resolutions by the Court is simply an exercise of judicial power under Art.
VIII of the Constitution, because the execution of the Decision is but an integral part of the adjudicative
function of the Court. None of the agencies ever questioned the power of the Court to implement the
December 18, 2008 Decision nor has any of them raised the alleged encroachment by the Court over
executive functions.
While additional activities are required of the agencies like submission of plans of action, data or status
reports, these directives are but part and parcel of the execution stage of a final decision under Rule
39 of the Rules of Court. Section 47 of Rule 39 reads:
Section 47. Effect of judgments or final orders.––The effect of a judgment or final order rendered by a
court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows:
xxxx
(c) In any other litigation between the same parties of their successors in interest, that only is deemed
to have been adjudged in a former judgment or final order which appears upon its face to have been
so adjudged, or which was actually and necessarily included therein or necessary thereto. (Emphasis
supplied.)
It is clear that the final judgment includes not only what appears upon its face to have been so adjudged
but also those matters "actually and necessarily included therein or necessary thereto." Certainly, any
activity that is needed to fully implement a final judgment is necessarily encompassed by said
judgment.
Moreover, the submission of periodic reports is sanctioned by Secs. 7 and 8, Rule 8 of the Rules of
Procedure for Environmental cases:
Sec. 7. Judgment.––If warranted, the court shall grant the privilege of the writ of continuing mandamus
requiring respondent to perform an act or series of acts until the judgment is fully satisfied and to grant
such other reliefs as may be warranted resulting from the wrongful or illegal acts of the respondent.
The court shall require the respondent to submit periodic reports detailing the progress and execution
of the judgment, and the court may, by itself or through a commissioner or the appropriate government
agency, evaluate and monitor compliance. The petitioner may submit its comments or observations
on the execution of the judgment.
Sec. 8. Return of the writ.––The periodic reports submitted by the respondent detailing compliance
with the judgment shall be contained in partial returns of the writ. Upon full satisfaction of the judgment,
a final return of the writ shall be made to the court by the respondent. If the court finds that the judgment
has been fully implemented, the satisfaction of judgment shall be entered in the court docket.
(Emphasis supplied.)
With the final and executory judgment in MMDA, the writ of continuing mandamus issued in MMDA
means that until petitioner-agencies have shown full compliance with the Court’s orders, the Court
exercises continuing jurisdiction over them until full execution of the judgment.
There being no encroachment over executive functions to speak of, We shall now proceed to the
recommendation of the Manila Bay Advisory Committee.
Several problems were encountered by the Manila Bay Advisory Committee.2 An evaluation of the
quarterly progressive reports has shown that (1) there are voluminous quarterly progressive reports
that are being submitted; (2) petitioner-agencies do not have a uniform manner of reporting their
cleanup, rehabilitation and preservation activities; (3) as yet no definite deadlines have been set by
petitioner DENR as to petitioner-agencies’ timeframe for their respective duties; (4) as of June 2010
there has been a change in leadership in both the national and local levels; and (5) some agencies
have encountered difficulties in complying with the Court’s directives.
In order to implement the afore-quoted Decision, certain directives have to be issued by the Court to
address the said concerns.
Acting on the recommendation of the Manila Bay Advisory Committee, the Court hereby resolves
to ORDER the following:
(1) The Department of Environment and Natural Resources (DENR), as lead agency in the Philippine
Clean Water Act of 2004, shall submit to the Court on or before June 30, 2011 the updated Operational
Plan for the Manila Bay Coastal Strategy.
The DENR is ordered to submit summarized data on the overall quality of Manila Bay waters for all
four quarters of 2010 on or before June 30, 2011.
The DENR is further ordered to submit the names and addresses of persons and companies in Metro
Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan that generate toxic and hazardous
waste on or before September 30, 2011.
(2) On or before June 30, 2011, the Department of the Interior and Local Government (DILG) shall
order the Mayors of all cities in Metro Manila; the Governors of Rizal, Laguna, Cavite, Bulacan,
Pampanga and Bataan; and the Mayors of all the cities and towns in said provinces to inspect all
factories, commercial establishments and private homes along the banks of the major river systems–
–such as but not limited to the Pasig-Marikina-San Juan Rivers, the National Capital Region
(Paranaque-Zapote, Las Pinas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River,
and the Laguna De Bay––and other minor rivers and waterways within their jurisdiction that eventually
discharge water into the Manila Bay and the lands abutting it, to determine if they have wastewater
treatment facilities and/or hygienic septic tanks, as prescribed by existing laws, ordinances, rules and
regulations. Said local government unit (LGU) officials are given up to September 30, 2011 to finish
the inspection of said establishments and houses.
In case of non-compliance, the LGU officials shall take appropriate action to ensure compliance by
non-complying factories, commercial establishments and private homes with said law, rules and
regulations requiring the construction or installment of wastewater treatment facilities or hygienic
septic tanks.
The aforementioned governors and mayors shall submit to the DILG on or before December 31, 2011
their respective compliance reports which will contain the names and addresses or offices of the
owners of all the non-complying factories, commercial establishments and private homes, copy
furnished the concerned environmental agency, be it the local DENR office or the Laguna Lake
Development Authority.
The DILG is required to submit a five-year plan of action that will contain measures intended to ensure
compliance of all non-complying factories, commercial establishments, and private homes.
On or before June 30, 2011, the DILG and the mayors of all cities in Metro Manila shall consider
providing land for the wastewater facilities of the Metropolitan Waterworks and Sewerage System
(MWSS) or its concessionaires (Maynilad and Manila Water, Inc.) within their respective jurisdictions.
(3) The MWSS shall submit to the Court on or before June 30, 2011 the list of areas in Metro Manila,
Rizal and Cavite that do not have the necessary wastewater treatment facilities. Within the same
period, the concessionaires of the MWSS shall submit their plans and projects for the construction of
wastewater treatment facilities in all the aforesaid areas and the completion period for said facilities,
which shall not go beyond 2037.
On or before June 30, 2011, the MWSS is further required to have its two concessionaires submit a
report on the amount collected as sewerage fees in their respective areas of operation as of December
31, 2010.
(4) The Local Water Utilities Administration is ordered to submit on or before September 30, 2011 its
plan to provide, install, operate and maintain sewerage and sanitation facilities in said cities and towns
and the completion period for said works, which shall be fully implemented by December 31, 2020.
(5) The Department of Agriculture (DA), through the Bureau of Fisheries and Aquatic Resources, shall
submit to the Court on or before June 30, 2011 a report on areas in Manila Bay where marine life has
to be restored or improved and the assistance it has extended to the LGUs in Metro Manila, Rizal,
Cavite, Laguna, Bulacan, Pampanga and Bataan in developing the fisheries and aquatic resources in
Manila Bay. The report shall contain monitoring data on the marine life in said areas. Within the same
period, it shall submit its five-year plan to restore and improve the marine life in Manila Bay, its future
activities to assist the aforementioned LGUs for that purpose, and the completion period for said
undertakings.
The DA shall submit to the Court on or before September 30, 2011 the baseline data as of September
30, 2010 on the pollution loading into the Manila Bay system from agricultural and livestock sources.
(6) The Philippine Ports Authority (PPA) shall incorporate in its quarterly reports the list of violators it
has apprehended and the status of their cases. The PPA is further ordered to include in its report the
names, make and capacity of the ships that dock in PPA ports. The PPA shall submit to the Court on
or before June 30, 2011 the measures it intends to undertake to implement its compliance with
paragraph 7 of the dispositive portion of the MMDA Decision and the completion dates of such
measures.
The PPA should include in its report the activities of its concessionaire that collects and disposes of
the solid and liquid wastes and other ship-generated wastes, which shall state the names, make and
capacity of the ships serviced by it since August 2003 up to the present date, the dates the ships
docked at PPA ports, the number of days the ship was at sea with the corresponding number of
passengers and crew per trip, the volume of solid, liquid and other wastes collected from said ships,
the treatment undertaken and the disposal site for said wastes.
(7) The Philippine National Police (PNP) Maritime Group shall submit on or before June 30, 2011 its
five-year plan of action on the measures and activities it intends to undertake to apprehend the
violators of Republic Act No. (RA) 8550 or the Philippine Fisheries Code of 1998 and other pertinent
laws, ordinances and regulations to prevent marine pollution in Manila Bay and to ensure the
successful prosecution of violators.
The Philippine Coast Guard shall likewise submit on or before June 30, 2011 its five-year plan of action
on the measures and activities they intend to undertake to apprehend the violators of Presidential
Decree No. 979 or the Marine Pollution Decree of 1976 and RA 9993 or the Philippine Coast Guard
Law of 2009 and other pertinent laws and regulations to prevent marine pollution in Manila Bay and to
ensure the successful prosecution of violators.
(8) The Metropolitan Manila Development Authority (MMDA) shall submit to the Court on or before
June 30, 2011 the names and addresses of the informal settlers in Metro Manila who, as of December
31, 2010, own and occupy houses, structures, constructions and other encroachments established or
built along the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers, the
Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros, in violation of
RA 7279 and other applicable laws. On or before June 30, 2011, the MMDA shall submit its plan for
the removal of said informal settlers and the demolition of the aforesaid houses, structures,
constructions and encroachments, as well as the completion dates for said activities, which shall be
fully implemented not later than December 31, 2015.
The MMDA is ordered to submit a status report, within thirty (30) days from receipt of this Resolution,
on the establishment of a sanitary landfill facility for Metro Manila in compliance with the standards
under RA 9003 or the Ecological Solid Waste Management Act.
On or before June 30, 2011, the MMDA shall submit a report of the location of open and controlled
dumps in Metro Manila whose operations are illegal after February 21, 2006,3 pursuant to Secs. 36
and 37 of RA 9003, and its plan for the closure of these open and controlled dumps to be accomplished
not later than December 31, 2012. Also, on or before June 30, 2011, the DENR Secretary, as
Chairperson of the National Solid Waste Management Commission (NSWMC), shall submit a report
on the location of all open and controlled dumps in Rizal, Cavite, Laguna, Bulacan, Pampanga and
Bataan.
On or before June 30, 2011, the DENR Secretary, in his capacity as NSWMC Chairperson, shall
submit a report on whether or not the following landfills strictly comply with Secs. 41 and 42 of RA
9003 on the establishment and operation of sanitary landfills, to wit:
National Capital Region
1. Navotas SLF (PhilEco), Brgy. Tanza (New Site), Navotas City
2. Payatas Controlled Dumpsite, Barangay Payatas, Quezon City
Region III
3. Sitio Coral, Brgy. Matictic, Norzagaray, Bulacan
4. Sitio Tiakad, Brgy. San Mateo, Norzagaray, Bulacan
5. Brgy. Minuyan, San Jose del Monte City, Bulacan
6. Brgy. Mapalad, Santa Rosa, Nueva Ecija
7. Sub-zone Kalangitan, Clark Capas, Tarlac Special Economic Zone
Region IV-A
8. Kalayaan (Longos), Laguna
9. Brgy. Sto. Nino, San Pablo City, Laguna
10. Brgy. San Antonio (Pilotage SLF), San Pedro, Laguna

11. Morong, Rizal
12. Sitio Lukutan, Brgy. San Isidro, Rodriguez (Montalban), Rizal (ISWIMS)
13. Brgy. Pintong Bukawe, San Mateo, Rizal (SMSLFDC)
On or before June 30, 2011, the MMDA and the seventeen (17) LGUs in Metro Manila are ordered to
jointly submit a report on the average amount of garbage collected monthly per district in all the cities
in Metro Manila from January 2009 up to December 31, 2010 vis-à-vis the average amount of garbage
disposed monthly in landfills and dumpsites. In its quarterly report for the last quarter of 2010 and
thereafter, MMDA shall report on the apprehensions for violations of the penal provisions of RA 9003,
RA 9275 and other laws on pollution for the said period.
On or before June 30, 2011, the DPWH and the LGUs in Rizal, Laguna, Cavite, Bulacan, Pampanga,
and Bataan shall submit the names and addresses of the informal settlers in their respective areas
who, as of September 30, 2010, own or occupy houses, structures, constructions, and other
encroachments built along the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan)
River, the Imus (Cavite) River, the Laguna de Bay, and other rivers, connecting waterways and esteros
that discharge wastewater into the Manila Bay, in breach of RA 7279 and other applicable laws. On or
before June 30, 2011, the DPWH and the aforesaid LGUs shall jointly submit their plan for the removal
of said informal settlers and the demolition of the aforesaid structures, constructions and
encroachments, as well as the completion dates for such activities which shall be implemented not
later than December 31, 2012.
(9) The Department of Health (DOH) shall submit to the Court on or before June 30, 2011 the names
and addresses of the owners of septic and sludge companies including those that do not have the
proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks.
The DOH shall implement rules and regulations on Environmental Sanitation Clearances and shall
require companies to procure a license to operate from the DOH.
The DOH and DENR-Environmental Management Bureau shall develop a toxic and hazardous waste
management system by June 30, 2011 which will implement segregation of hospital/toxic/hazardous
wastes and prevent mixing with municipal solid waste.
On or before June 30, 2011, the DOH shall submit a plan of action to ensure that the said companies
have proper disposal facilities and the completion dates of compliance. 1avv phi 1
(10) The Department of Education (DepEd) shall submit to the Court on or before May 31, 2011 a
report on the specific subjects on pollution prevention, waste management, environmental protection,
environmental laws and the like that it has integrated into the school curricula in all levels for the school
year 2011-2012.
On or before June 30, 2011, the DepEd shall also submit its plan of action to ensure compliance of all
the schools under its supervision with respect to the integration of the aforementioned subjects in the
school curricula which shall be fully implemented by June 30, 2012.
(11) All the agencies are required to submit their quarterly reports electronically using the forms below.
The agencies may add other key performance indicators that they have identified.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
See dissenting opinion I join the dissent of J. Carpio

ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice
ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

I join the dissent of J. Carpio

DIOSDADO M. PERALTA
ARTURO D. BRION
Associate Justice
Associate Justice
LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

See dissenting opinion

MARIA LOURDES P. A. SERENO
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.
RENATO C. CORONA
Chief Justice
Footnotes
1 Now the Department of Education (DepEd).

2On February 10, 2009, the Court En Banc approved a resolution creating an Advisory
Committee "that will verify the reports of the government agencies tasked to clean up the
Manila Bay." It is composed of two members of the Court and three technical experts:
Hon. Presbitero J. Velasco, Jr.

Chairperson and ponente of MMDA vs. Concerned Residents of Manila
Hon. Jose Midas P. Marquez

Court Administrator
Vice-Chairperson
Members/Technical Experts:
Dr. Gil S. Jacinto

Former Director, UP Marine Science Institute
Dr. Elisea G. Gozun

Chair of Earth Day Network and Former DENR Secretary
Dr. Antonio G.M. La Viña

Former DENR Undersecretary
Dean of the Ateneo School of Government
3 Our Decision in Metropolitan Manila Development Authority v. Concerned Residents of

Manila Bay, G.R. Nos. 171947-48, December 18, 2008, 574 SCRA 661, 690, states: "RA 9003
took effect on February 15, 2001 and the adverted grace period of five (5) years [in Sec. 37 of
RA 9003] which ended on February 21, 2006 has come and gone, but no single sanitary landfill
which strictly complies with the prescribed standards under RA 9003 has yet been set up."
(Emphasis supplied.)
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
CARPIO, J.:
The Resolution contains the proposed directives of the Manila Bay Advisory Committee to the
concerned agencies1and local government units (LGUs) for the implementation of the 18 December
2008 Decision of the Court in this case.
Among the directives stated in the Resolution is for the affected agencies to submit to the Court their
plans of action and status reports, thus:
The Department of Environment and Natural Resources (DENR), as lead agency in the Philippine
Clean Water Act of 2004, shall submit to the Court on or before June 30, 2011 the updated Operational
Plan for the Manila Bay Coastal Strategy (OPMBCS);2
The DILG is required to submit a five-year plan of action that will contain measures intended
to ensure compliance of all non-complying factories, commercial establishments, and private
homes;3
The MWSS shall submit to the Court on or before June 30, 2011 the list of areas in Metro Manila, Rizal
and Cavite that do not have the necessary wastewater treatment facilities. Within the same period,
the concessionaires of the MWSS shall submit their plans and projects for the construction of
wastewater treatment facilities in all the aforesaid areas and the completion period for said
facilities, which shall not go beyond 2020;4
The Local Water Utilities Administration (LWUA) shall submit to the Court on or before June 30, 2011
the list of cities and towns in Laguna, Cavite, Bulacan, Pampanga, and Bataan that do not have
sewerage and sanitation facilities. LWUA is further ordered to submit on or before September 30,
2011 its plan to provide, install, operate and maintain sewerage and sanitation facilities in said
cities and towns and the completion period for said works which shall be fully implemented by
December 31, 2020;5
The Department of Agriculture (DA), through the Bureau of Fisheries and Aquatic Resources (BFAR),
shall submit to the Court on or before June 30, 2011 a report on areas in Manila Bay where marine
life has to be restored or improved and the assistance it has extended to the LGUs in Metro Manila,
Rizal, Cavite, Laguna, Bulacan, Pampanga and Bataan in developing the fisheries and aquatic
resources in Manila Bay. The report shall contain monitoring data on the marine life in said
areas. Within the same period, it shall submit its five-year plan to restore and improve the
marine life in Manila Bay, its future activities to assist the aforementioned LGUs for that
purpose, and the completion period for said undertakings;6
The Philippine Ports Authority (PPA) shall incorporate in its quarterly reports the list of violators it has
apprehended and the status of their cases. The PPA is further ordered to include in its report the
names, make and capacity of the ships that dock in PPA ports. The PPA shall submit to the Court
on or before June 30, 2011 the measures it intends to undertake to implement its compliance
with paragraph 7 of the dispositive portion of the MMDA Decision and the completion dates of
such measures;7
The Philippine National Police (PNP) – Maritime Group shall submit on or before June 30, 2011 its
five-year plan of action on the measures and activities they intend to undertake to apprehend
the violators of RA 8550 or the Philippine Fisheries Code of 1998 and other pertinent laws,
ordinances and regulations to prevent marine pollution in Manila Bay and to ensure the successful
prosecution of violators;8
The Philippine Coast Guard (PCG) shall likewise submit on or before June 30, 2011 its five-year
plan of action on the measures and activities they intend to undertake to apprehend the
violators of Presidential Decree (PD) 979 or the Marine Pollution Decree of 1976 and RA 9993 or
the Philippine Coast Guard Law of 2009 and other pertinent laws and regulations to prevent marine
pollution in Manila Bay and to ensure the successful prosecution of violators;9
The Metropolitan Manila Development Authority (MMDA) shall submit to the Court on or before
June 30, 2011 the names and addresses of the informal settlers in Metro Manila who own and
occupy houses, structures, constructions and other encroachments established or built in
violation of RA 7279 and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR
(Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and
connecting waterways and esteros as of December 31, 2010. On or before the same date, the MMDA
shall submit its plan for the removal of said informal settlers and the demolition of the aforesaid
houses, structures, constructions and encroachments, as well as the completion dates for said
activities which shall be fully implemented not later than December 31, 2015;10
[T]he DPWH and the aforesaid LGUs shall jointly submit its plan for the removal of said informal
settlers and the demolition of the aforesaid structures, constructions and encroachments, as
well as the completion dates for such activities which shall be implemented not later than
December 31, 2012;11
[T]he DOH shall submit a plan of action to ensure that the said companies have proper disposal
facilities and the completion dates of compliance;12
On or before June 30, 2011, the DepEd shall also submit its plan of action to ensure compliance
of all the schools under its supervision with respect to the integration of the aforementioned
subjects in the school curricula which shall be fully implemented by June 30, 2012;13 (Emphasis
supplied)
What is the purpose of requiring these agencies to submit to the Court their plans of action and status
reports? Are these plans to be approved or disapproved by the Court? The Court does not have the
competence or even the jurisdiction to evaluate these plans which involves technical matters14 best
left to the expertise of the concerned agencies.
The Resolution also requires that the concerned agencies shall "submit [to the Court] their quarterly
reports electronically x x x."15 Thus, the directive for the concerned agencies to submit to the Court
their quarterly reports is a continuing obligation which extends even beyond the year 2011.16
The Court is now arrogating unto itself two constitutional powers exclusively vested in the President.
First, the Constitution provides that "executive power shall be vested in the President."17 This
means that neither the Judiciary nor the Legislature can exercise executive power for executive power
is the exclusive domain of the President. Second, the Constitution provides that the President shall
"have control of all the executive departments, bureaus, and offices."18 Neither the Judiciary nor
the Legislature can exercise control or even supervision over executive departments, bureaus, and
offices.
Clearly, the Resolution constitutes an intrusion of the Judiciary into the exclusive domain of the
Executive. In the guise of implementing the 18 December 2008 Decision through the Resolution, the
Court is in effect supervising and directing the different government agencies and LGUs concerned.
In Noblejas v. Teehankee,19 it was held that the Court cannot be required to exercise administrative
functions such as supervision over executive officials. The issue in that case was whether the
Commissioner of Land Registration may only be investigated by the Supreme Court, in view of the
conferment upon him by law (Republic Act No. 1151) of the rank and privileges of a Judge of the Court
of First Instance. The Court, answering in the negative, stated:
To adopt petitioner's theory, therefore, would mean placing upon the Supreme Court the duty of
investigating and disciplining all these officials whose functions are plainly executive and the
consequent curtailment by mere implication from the Legislative grant, of the President's power to
discipline and remove administrative officials who are presidential appointees, and which the
Constitution expressly place under the President's supervision and control.
xxx
But the more fundamental objection to the stand of petitioner Noblejas is that, if the Legislature had
really intended to include in the general grant of "privileges" or "rank and privileges of Judges of the
Court of First Instance" the right to be investigated by the Supreme Court, and to be suspended or
removed only upon recommendation of that Court, then such grant of privilege would be
unconstitutional, since it would violate the fundamental doctrine of separation of powers, by
charging this court with the administrative function of supervisory control over executive
officials, and simultaneously reducing pro tanto the control of the Chief Executive over such
officials.20 (Boldfacing supplied)
Likewise, in this case, the directives in the Resolution are administrative in nature and circumvent the
constitutional provision which prohibits Supreme Court members from performing quasi-judicial or
administrative functions. Section 12, Article VIII of the 1987 Constitution provides:
SEC. 12. The members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions.
Thus, in the case of In Re: Designation of Judge Manzano as Member of the Ilocos Norte Provincial
Committee on Justice,21 the Court invalidated the designation of a judge as member of the Ilocos Norte
Provincial Committee on Justice, which was tasked to receive complaints and to make
recommendations for the speedy disposition of cases of detainees. The Court held that the committee
performs administrative functions22 which are prohibited under Section 12, Article VIII of the
Constitution.
As early as the 1932 case of Manila Electric Co. v. Pasay Transportation Co.,23 this Court has already
emphasized that the Supreme Court should only exercise judicial power and should not assume any
duty which does not pertain to the administering of judicial functions. In that case, a petition was filed
requesting the members of the Supreme Court, sitting as a board of arbitrators, to fix the terms and
the compensation to be paid to Manila Electric Company for the use of right of way. The Court held
that it would be improper and illegal for the members of the Supreme Court, sitting as a board of
arbitrators, whose decision of a majority shall be final, to act on the petition of Manila Electric Company.
The Court explained:
We run counter to this dilemma. Either the members of the Supreme Court, sitting as a board of
arbitrators, exercise judicial functions, or as members of the Supreme Court, sitting as a board of
arbitrators, exercise administrative or quasi judicial functions. The first case would appear not to fall
within the jurisdiction granted the Supreme Court. Even conceding that it does, it would presuppose
the right to bring the matter in dispute before the courts, for any other construction would tend to oust
the courts of jurisdiction and render the award a nullity. But if this be the proper construction, we would
then have the anomaly of a decision by the members of the Supreme Court, sitting as a board of
arbitrators, taken therefrom to the courts and eventually coming before the Supreme Court, where the
Supreme Court would review the decision of its members acting as arbitrators. Or in the second case,
if the functions performed by the members of the Supreme Court, sitting as a board of arbitrators, be
considered as administrative or quasi judicial in nature, that would result in the performance of duties
which the members of the Supreme Court could not lawfully take it upon themselves to perform. The
present petition also furnishes an apt illustration of another anomaly, for we find the Supreme Court
as a court asked to determine if the members of the court may be constituted a board of arbitrators,
which is not a court at all.
The Supreme Court of the Philippine Islands represents one of the three divisions of power in our
government. It is judicial power and judicial power only which is exercised by the Supreme Court. Just
as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any
other department of the government, so should it as strictly confine its own sphere of influence to the
powers expressly or by implication conferred on it by the Organic Act. The Supreme Court and its
members should not and cannot be required to exercise any power or to perform any trust or to assume
any duty not pertaining to or connected with the administering of judicial functions.24
Furthermore, the Resolution orders some LGU officials to inspect the establishments and houses
along major river banks and to "take appropriate action to ensure compliance by non-complying
factories, commercial establishments and private homes with said law, rules and regulations
requiring the construction or installment of wastewater treatment facilities or hygienic septic
tanks."25 The LGU officials are also directed to "submit to the DILG on or before December 31, 2011
their respective compliance reports which shall contain the names and addresses or offices of the
owners of all the non-complying factories, commercial establishments and private
homes."26 Furthermore, the Resolution mandates that on or before 30 June 2011, the DILG and the
mayors of all cities in Metro Manila should "consider providing land for the wastewater facilities of the
Metropolitan Waterworks and Sewerage System (MWSS) or its concessionaires (Maynilad and Manila
Water Inc.) within their respective jurisdictions."27 The Court is in effect ordering these LGU officials
how to do their job and even gives a deadline for their compliance. Again, this is a usurpation of
the power of the President to supervise LGUs under the Constitution and existing laws.
Section 4, Article X of the 1987 Constitution provides that: "The President of the Philippines shall
exercise general supervision over local governments x x x."28 Under the Local Government Code
of 1991,29 the President exercises general supervision over LGUs, thus:
SECTION 25. National Supervision over Local Government Units. ‒ (a) Consistent with the basic
policy on local autonomy, the President shall exercise general supervision over local
government units to ensure that their acts are within the scope of their prescribed powers and
functions.
The President shall exercise supervisory authority directly over provinces, highly urbanized cities and
independent component cities; through the province with respect to component cities and
municipalities; and through the city and municipality with respect to barangays. (Emphasis supplied)
The Resolution constitutes judicial overreach by usurping and performing executive functions.
The Court must refrain from overstepping its boundaries by taking over the functions of an equal
branch of the government – the Executive. The Court should abstain from exercising any function
which is not strictly judicial in character and is not clearly conferred on it by the Constitution.30 Indeed,
as stated by Justice J.B.L. Reyes in Noblejas v. Teehankee,31 "the Supreme Court of the Philippines
and its members should not and can not be required to exercise any power or to perform any trust or
to assume any duty not pertaining to or connected with the administration of judicial functions."32
The directives in the Resolution constitute a judicial encroachment of an executive function which
clearly violates the system of separation of powers that inheres in our democratic republican
government. The principle of separation of powers between the Executive, Legislative, and Judicial
branches of government is part of the basic structure of the Philippine Constitution. Thus, the 1987
Constitution provides that: (a) the legislative power shall be vested in the Congress of the
Philippines;33 (b) the executive power shall be vested in the President of the Philippines;34 and (c) the
judicial power shall be vested in one Supreme Court and in such lower courts as may be established.35
Since the Supreme Court is only granted judicial power, it should not attempt to assume or be
compelled to perform non-judicial functions.36 Judicial power is defined under Section 1, Article VIII of
the 1987 Constitution as that which "includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the government." The Resolution contains directives
which are outside the ambit of the Court's judicial functions.
The principle of separation of powers is explained by the Court in the leading case of Angara v.
Electoral Commission:37
The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct
that the Constitution intended them to be absolutely unrestrained and independent of each other. The
Constitution has provided for an elaborate system of checks and balances to secure coordination in
the workings of the various departments of the government. x x x And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the other department in its exercise of its power
to determine the law, and hence to declare executive and legislative acts void if violative of the
Constitution.38
Even the ponente is passionate about according respect to the system of separation of powers
between the three equal branches of the government. In his dissenting opinion in the 2008 case
of Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on
Ancestral Domain (GRP),39 Justice Velasco emphatically stated:
Separation of Powers to be Guarded
Over and above the foregoing considerations, however, is the matter of separation of powers which
would likely be disturbed should the Court meander into alien territory of the executive and dictate how
the final shape of the peace agreement with the MILF should look like. The system of separation of
powers contemplates the division of the functions of government into its three (3) branches:
the legislative which is empowered to make laws; the executive which is required to carry out
the law; and the judiciary which is charged with interpreting the law. Consequent to actual
delineation of power, each branch of government is entitled to be left alone to discharge its
duties as it sees fit. Being one such branch, the judiciary, as Justice Laurel asserted in Planas
v. Gil, "will neither direct nor restrain executive [or legislative action]." Expressed in another
perspective, the system of separated powers is designed to restrain one branch from
inappropriate interference in the business, or intruding upon the central prerogatives, of
another branch; it is a blend of courtesy and caution, "a self-executing safeguard against the
encroachment or aggrandizement of one branch at the expense of the other." x x x
Under our constitutional set up, there cannot be any serious dispute that the maintenance of the peace,
insuring domestic tranquility and the suppression of violence are the domain and responsibility of the
executive. Now then, if it be important to restrict the great departments of government to the
exercise of their appointed powers, it follows, as a logical corollary, equally important, that one
branch should be left completely independent of the others, independent not in the sense that
the three shall not cooperate in the common end of carrying into effect the purposes of the
constitution, but in the sense that the acts of each shall never be controlled by or subjected to
the influence of either of the branches.40 (Emphasis supplied)
Indeed, adherence to the principle of separation of powers which is enshrined in our Constitution is
essential to prevent tyranny by prohibiting the concentration of the sovereign powers of state in one
body.41 Considering that executive power is exclusively vested in the President of the Philippines, the
Judiciary should neither undermine such exercise of executive power by the President nor arrogate
executive power unto itself. The Judiciary must confine itself to the exercise of judicial functions and
not encroach upon the functions of the other branches of the government.
ACCORDINGLY, I vote against the approval of the Resolution.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1Department of Environment and Natural Resources (DENR), Department of Interior and

Local Government (DILG), ), Metropolitan Waterworks and Sewerage System (MWSS), Local
Water Utilities Administration (LWUA), Department of Agriculture (DA), Philippine Ports
Authority (PPA), Philippine National Police (PNP), Metropolitan Manila Development Authority
(MMDA), Department of Health (DOH), Department of Education (DepEd), and Department of
Budget and Management (DBM).
2 Resolution, p. 4.
3 Resolution, p. 6.
4 Resolution, p. 6.
5
Resolution, p. 6-7.
6 Resolution, p. 7.
7 Resolution, p. 7.
8 Resolution, p. 8.
9 Resolution, p. 8.
10 Resolution, pp. 8.
11 Resolution, p. 10.
14For instance, the Resolution orders the PPA to "include in its report the activities of the
concessionaire that collects and disposes of the solid and liquid wastes and other ship-
generated wastes, which shall state the names, make and capacity of the ships serviced by it
since August 2003 up to the present date, the dates the ships docked at PPA ports, the number
of days the ship was at sea with the corresponding number of passengers and crew per trip,
the volume of solid, liquid and ship-generated wastes collected from said ships, the treatment
undertaken and the disposal site for said wastes;" Resolution, pp. 7-8.
15 Resolution, p.11.
16For example, the Resolution directs that "[i]n its quarterly report for the last quarter of
2010 and thereafter, MMDA shall report on the apprehensions for violations of the penal
provisions of RA 9003, RA 9275 and other laws on pollution for the said period; Resolution, p.
10. (Emphasis supplied.)
17 Constitution, Art. VII, Sec. 1.
19 131 Phil. 931 (1968).
20 Id. at. 934-935.
21 248 Phil. 487 (1988).
22Administrative functions are "those which involve the regulation and control over the conduct
and affairs of individuals for their own welfare and the promulgation of rules and regulations to
better carry out the policy of the legislature or such as are devolved upon the administrative
agency by the organic law of its existence." Id. at 491.
23 57 Phil 600 (1932).
24 Id. at 604-605.
28 Emphasis supplied.
29 Republic Act No. 7160.
30
Manila Electric Co. v. Pasay Transportation Co., supra note 23.
31 Supra note 19.
32 Id. at 936, citing Manila Electric Co. v. Pasay Transportation Co., 57 Phil. 600, 605 (1932).
33 Constitution, Art. VI, Sec. 1.
35 Constitution, Art. VIII, Sec. 1.

36J. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary 828
(1996).
37 63 Phil. 139 (1936).
38 Id. at 156-157.
39 G.R. Nos. 183591, 183752, 183893, 183951 & 183962, 14 October 2008, 568 SCRA 402.
40 Dissenting Opinion, id. at 669-670. (Citations omitted)
41S. Carlota, The Three Most Important Features of the Philippine Legal System that Others
Should Understand, in IALS Conference Learning from Each Other: Enriching the Law School
Curriculum in an Interrelated World 177 <www.ialsnet.org/meeting/enriching/carlota.pdf>
(visited 5 November 2010).
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
SERENO, J.:
"The judicial whistle needs to be blown for a purpose and with caution. It needs to be remembered
that the Court cannot run the government. The Court has the duty of implementing constitutional
safeguards that protect individual rights but they cannot push back the limits of the Constitution to
accommodate the challenged violation."1
These are the words of Justice Anand of the Supreme Court of India, from which court the idea of a
continuing mandatory injunction for environmental cases was drawn by the Philippine Supreme Court.
These words express alarm that the Indian judiciary has already taken on the role of running the
government in environmental cases. A similar situation would result in the Philippines were the majority
Resolution to be adopted. Despite having the best of intentions to ensure compliance by petitioners
with their corresponding statutory mandates in an urgent manner, this Court has unfortunately
encroached upon prerogatives solely to be exercised by the President and by Congress.
On 18 December 2008, the Court promulgated its decision in MMDA v. Concerned Residents of Manila
Bay, G.R. Nos. 171947-48, denying the petition of the government agencies, defendants in Civil Case
No. 1851-99. It held that the Court of Appeals, subject to some modifications, was correct in affirming
the 13 September 2002 Decision of the Regional Trial Court in Civil Case No. 1851-99. It ordered "the
abovenamed defendant-government agencies to clean up, rehabilitate, and preserve Manila Bay, and
restore and maintain its waters to SB level (Class B sea waters per Water Classification Tables under
DENR Administrative Order No. 34 [1990]) to make them fit for swimming, skin-diving, and other forms
of contact recreation."
The Court further issued each of the aforementioned agencies specific orders to comply with their
statutory mandate.2 Pursuant to the judgment above, the Court established its own Manila Bay
Advisory Committee. Upon the recommendations of the said Committee, the present Resolution was
issued. It encompasses several of the specific instructions laid out by the court in the original case,
but also goes further by requiring reports and updates from the said government agencies, and setting
deadlines for the submission thereof.
I find these directives in the Majority Resolution patently irreconcilable with basic constitutional
doctrines and with the legislative mechanisms already in place, such as the Administrative Code and
the Local Government Code, which explicitly grant control and supervision over these agencies to the
President alone, and to no one else. For these reasons, I respectfully dissent from the Majority
Resolution.
In issuing these directives, the Court has encroached upon the exclusive authority of the Executive
Department and violated the doctrine of Separation of Powers
The Resolution assigned the Department of Natural Resources as the primary agency for environment
protection and required the implementation of its Operational Plan for the Manila Bay Coastal Strategy.
It ordered the DENR to submit the updated operational plan directly to the Court; to summarize data
on the quality of Manila Bay waters; and to "submit the names and addresses of persons and
companies…that generate toxic or hazardous waste on or before September 30, 2011."
The Department of the Interior and Local Government is directed to "order the Mayors of all cities in
Metro Manila; the Governors of Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan; and the
Mayors of all the cities and towns in said provinces to inspect all factories, commercial establishments
and private homes along the banks of the major river systems…" to determine if they have wastewater
treatment facilities, on or before 30 June 2011. The LGUs are given a deadline of 30 September 2011
to finish the inspection. In cooperation with the Department of Public Works and Highways (DPWH),
these local governments are required to submit their plan for the removal of informal settlers and
encroachments which are in violation of Republic Act No. 7279. The said demolition must take place
not later than 31 December 2012.
The Metropolitan Waterworks and Sewerage System (MWSS) is required to submit its plans for the
construction of wastewater treatment facilities in areas where needed, the completion period for which
shall not go beyond the year 2020. On or before 30 June 2011, the MWSS is further required to have
its two concessionaires submit a report on the amount collected as sewerage fees. The Local Water
Utilities Administration (LWUA) is ordered to submit on or before 30 September 2011 its plan to install
and operate sewerage and sanitation facilities in the towns and cities where needed, which must be
fully implemented by 31 December 2020.
The Department of Agriculture and the Bureau of Aquatic Fisheries and Resources are ordered to
submit on or before 30 June 2011 a list of areas where marine life in Manila Bay has improved, and
the assistance extended to different Local Government Units in this regard. The Philippine Ports
Authority (PPA) is ordered to report the names, make, and capacity of each ship that would dock in
PPA ports; the days they docked and the days they were at sea; the activities of the concessionaire
that would collect solid and liquid ship-generated waste, the volume, treatment and disposal sites for
such wastes; and the violators that PPA has apprehended.
The Department of Health (DOH) is required to submit the names and addresses of septic and sludge
companies that have no treatment facilities. The said agency must also require companies to procure
a "license to operate" issued by the DOH. The Metropolitan Manila Development Authority (MMDA)
and the seventeen (17) LGUs in Metro Manila must submit a report on the "amount of garbage
collected per district…vis-à-vis the average amount of garbage disposed monthly in landfills and
dumpsites." MMDA must also submit a plan for the removal of informal settlers and encroachments
along NCR Rivers which violate R.A. No. 7279.
Clearly, the Court has no authority to issue these directives. They fall squarely under the domain of
the executive branch of the state. The issuance of specific instructions to subordinate agencies in the
implementation of policy mandates in all laws, not just those that protect the environment, is an
exercise of the power of supervision and control – the sole province of the Office of the President.
Both the 1987 Constitution and Executive Order No. 292, or the Administrative Code of the Philippines,
state:
Exercise of Executive Power. - The Executive power shall be vested in the President.3
Power of Control.- The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.4
In Anak Mindanao Party-list Group v. Executive Secretary,5 this Court has already asserted that the
enforcement of all laws is the sole domain of the Executive. The Court pronounced that the express
constitutional grant of authority to the Executive is broad and encompassing, such that it justifies
reorganization measures6 initiated by the President. The Court said:
While Congress is vested with the power to enact laws, the President executes the laws. The executive
power is vested in the President. It is generally defined as the power to enforce and administer the
laws. It is the power of carrying the laws into practical operation and enforcing their due observance.
As head of the Executive Department, the President is the Chief Executive. He represents the
government as a whole and sees to it that all laws are enforced by the officials and employees of his
department. He has control over the executive department, bureaus and offices. This means that he
has the authority to assume directly the functions of the executive department, bureau and office, or
interfere with the discretion of its officials. Corollary to the power of control, the President also has the
duty of supervising and enforcement of laws for the maintenance of general peace and public order.
Thus, he is granted administrative power over bureaus and offices under his control to enable him to
discharge his duties effectively.
To herein petitioner agencies impleaded below, this Court has given very specific instructions to report
the progress and status of their operations directly to the latter. The Court also required the agencies
to apprise it of any noncompliance with the standards set forth by different laws as to environment
protection. This move is tantamount to making these agencies accountable to the Court instead of the
President. The very occupation streamlined especially for the technical and practical expertise of the
Executive Branch is being usurped without regard for the delineations of power in the Constitution. In
fact, the issuance of the Resolution itself is in direct contravention of the President’s exclusive power
to issue administrative orders, as shown thus:
Administrative Orders. - Acts of the President which relate to particular aspect of governmental
operations in pursuance of his duties as administrative head shall be promulgated in administrative
orders.7
The Court’s discussion in Ople v. Torres8 pertaining to the extent and breadth of administrative power
bestowed upon the President is apt:
Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs. It enables the President to fix a uniform standard of
administrative efficiency and check the official conduct of his agents. To this end, he can issue
administrative orders, rules and regulations.
………
An administrative order is an ordinance issued by the President which relates to specific aspects in
the administrative operation of government. It must be in harmony with the law and should be for the
sole purpose of implementing the law and carrying out the legislative policy.
The implementation of the policy laid out by the legislature – in the Philippine Clean Water Act of 2004,
the Toxic and Hazardous Waste Act or Republic Act 6969, the Environment Code, and other laws
geared towards environment protection – is under the competence of the President. Achieved thereby
is a uniform standard of administrative efficiency. And since it is through administrative orders
promulgated by the President that specific operational aspects for these policies are laid out, the
Resolution of this Court overlaps with the President’s administrative power. No matter how urgent and
laudatory the cause of environment protection has become, it cannot but yield to the higher mandate
of separation of powers and the mechanisms laid out by the people through the Constitution.
One of the directives is that which requires local governments to conduct inspection of homes and
establishments along the riverbanks, and to submit a plan for the removal of certain informal settlers.
Not content with arrogating unto itself the powers of "control" and "supervision" granted by the
Administrative Code to the President over said petitioner administrative agencies, the Court is also
violating the latter’s general supervisory authority over local governments:
Sec. 18. General Supervision Over Local Governments. - The President shall exercise general
supervision over local governments.9
Sec. 25. National Supervision over Local Government Units.––(a) Consistent with the basic policy on
local autonomy, the President shall exercise general supervision over local government units to ensure
that their acts are within the scope of their prescribed powers and functions.10
The powers expressly vested in any branch of the Government shall not be exercised by, nor
delegated to, any other branch of the Government, except to the extent authorized by the
Constitution.11
As has often been repeated by this Court, the doctrine of separation of powers is the very wellspring
from which the Court draws its legitimacy. Former Chief Justice Reynato S. Puno has traced its origin
and rationale as inhering in the republican system of government:
The principle of separation of powers prevents the concentration of legislative, executive, and judicial
powers to a single branch of government by deftly allocating their exercise to the three branches of
government...
In his famed treatise, The Spirit of the Laws, Montesquieu authoritatively analyzed the nature of
executive, legislative and judicial powers and with a formidable foresight counselled that any
combination of these powers would create a system with an inherent tendency towards tyrannical
actions…
Again, there is no liberty, if the judiciary power be not separated from the legislative and the executive.
Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary
control; for the judge would be then the legislator. Were it joined to the executive power, the judge
might behave with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of the nobles or
of the people, to exercise those three powers, that of enacting laws, that of executing the public
resolutions, and that of trying the causes of individuals. 12
Nor is there merit in the contention that these directives will speed up the rehabilitation of Manila Bay
better than if said rehabilitation were left to the appropriate agencies. Expediency is never a reason to
abandon legitimacy. "The Separation of Powers often impairs efficiency, in terms of dispatch and the
immediate functioning of government. It is the long-term staying power of government that is enhanced
by the mutual accommodation required by the separation of powers."13
Mandamus does not lie to compel a discretionary act.
In G.R. Nos. 171947-48, the Court explicitly admitted that "[w]hile the implementation of the MMDA’s
mandated tasks may entail a decision-making process, the enforcement of the law or the very act of
doing what the law exacts to be done is ministerial in nature and may be compelled by mandamus."14 In
denying the appeal of petitioners and affirming the Decision of the RTC, the Court of Appeals stressed
that the trial court’s Decision did not require petitioners to do tasks outside of their usual basic functions
under existing laws.15
In its revised Resolution, the Court is now setting deadlines for the implementation of policy
formulations which require decision-making by the agencies. It has confused an order enjoining a duty,
with an order outlining specific technical rules on how to perform such a duty. Assuming without
conceding that mandamus were availing under Rule 65, the Court can only require a particular action,
but it cannot provide for the means to accomplish such action. It is at this point where the demarcation
of the general act of "cleaning up the Manila Bay" has become blurred, so much so that the Court now
engages in the slippery slope of overseeing technical details.
In Sps. Abaga v. Sps. Panes16 the Court said:
From the foregoing Rule, there are two situations when a writ of mandamus may issue: (1) when any
tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which
the law specifically enjoins as a duty resulting from an office, trust, or station; or (2) when any
tribunal, corporation, board, officer or person unlawfully excludes another from the use and enjoyment
of a right or office to which the other is entitled. The "duty" mentioned in the first situation is a ministerial
duty, not a discretionary duty, requiring the exercise of judgment…In short, for mandamus to lie, the
duty sought to be compelled to be performed must be a ministerial duty, not a discretionary duty,
and the petitioner must show that he has a well-defined, clear and certain right.
Discretion, on the other hand, is a faculty conferred upon a court or official by which he may decide
the question either way and still be right.17
The duty being enjoined in mandamus must be one according to the terms defined in the law itself.
Thus, the recognized rule is that, in the performance of an official duty or act involving discretion, the
corresponding official can only be directed by mandamus to act, but not to act one way or the other.
This is the end of any participation by the Court, if it is authorized to participate at all.
In setting a deadline for the accomplishment of these directives, not only has the Court provided the
means of accomplishing the task required, it has actually gone beyond the standards set by the law.
There is nothing in the Environment Code, the Administrative Code, or the Constitution which grants
this authority to the judiciary. It is already settled that, "If the law imposes a duty upon a public officer
and gives him the right to decide when and how the duty shall be performed, such duty is not
ministerial."18
In Alvarez v. PICOP Resources,19 the Court ruled that,
As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform
a ministerial duty, not a discretionary one; mandamus will not issue to control the exercise of discretion
of a public officer where the law imposes upon him the duty to exercise his judgment in reference to
any manner in which he is required to act, because it is his judgment that is to be exercised and not
that of the court.
The Constitution does not authorize the courts to "monitor" the execution of their decisions.
It is an oft-repeated rule that the Court has no power to issue advisory opinions, much less "directives"
requiring progress reports from the parties respecting the execution of its decisions. The requirements
of "actual case or controversy" and "justiciability" have long been established in order to limit the
exercise of judicial review. While its dedication to the implementation of the fallo in G.R. 171947-48 is
admirable, the Court’s power cannot spill over to actual encroachment upon both the "control" and
police powers of the State under the guise of a "continuing mandamus."
In G.R. 171947-48, the Court said: "Under what other judicial discipline describes as ‘continuing
mandamus,’ the Court may, under extraordinary circumstances, issue directives with the end in view
of ensuring that its decision would not be set to naught by administrative inaction or indifference."
Needless to say, the "continuing mandamus" in this case runs counter to principles of "actual case or
controversy" and other requisites for judicial review. In fact, the Supreme Court is in danger of acting
as a "super-administrator"20– the scenario presently unfolding in India where the supposed remedy
originated. There the remedy was first used in Vineet Narain and Others v. Union of India,21 a public
interest case for corruption filed against high-level officials. Since then, the remedy has been applied
to environmental cases as an oversight and control power by which the Supreme Court of India has
created committees (i.e. the Environment Pollution Authority and the Central Empowered Committee
in forest cases) and allowed these committees to act as the policing agencies.22 But the most
significant judicial intervention in this regard was the series of orders promulgated by the Court in T.N.
Godavarman v. Union of India.23
Although the Writ Petition filed by Godavarman was an attempt to seek directions from the Court
regarding curbing the illegal felling of trees, the Supreme Court went further to make policy
determinations in an attempt to improve the country’s forests. The Court Order suspending felling of
trees that did not adhere to state government working plans resulted in effectively freezing the
country’s timber industry. The Supreme Court completely banned tree felling in certain north-eastern
states to any part of the country. The court’s role was even more pronounced in its later directions.
While maintaining the ban on felling of trees in the seven northeast states, the court directed the state
governments to gather, process, sell, and otherwise manage the already felled timber in the manner
its specified the Supreme Court became the supervisor of all forest issues, ranging from controlling,
pricing and transport of timber to management of forest revenue, as well as implementation of its
orders.24
Thus, while it was originally intended to assert public rights in the face of government inaction and
neglect, the remedy is now facing serious criticism as it has spiraled out of control.25 In fact, even
Justice J. S. Verma, who penned the majority opinion in Vineet Narain in which ‘continuing mandamus’
first made its appearance, subsequently pronounced that "judicial activism should be neither judicial
ad hocism nor judicial tyranny."26 Justice B.N. Srikrishna observed that judges now seem to want to
engage themselves with boundless enthusiasm in complex socio-economic issues raising myriads of
facts and ideological issues that cannot be managed by "judicially manageable standards." 27 Even
Former Chief Justice A. S. Anand, a known defender of judicial activism, has warned against the
tendency towards "judicial adventurism," reiterating the principle that "the role of the judge is that of a
referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I
must neither take part in it nor tell the players how to play."28
Unless our own Supreme Court learns to curb its excesses and apply to this case the standards for
judicial review it has developed over the years and applied to co-equal branches, the scenario in India
could very well play out in the Philippines. The Court must try to maintain a healthy balance between
the departments, precisely as the Constitution mandates, by delineating its "deft strokes and bold
lines,"29 ever so conscious of the requirements of actual case and controversy. While, admittedly, there
are certain flaws in the operation and implementation of the laws, the judiciary cannot take the initiative
to compensate for such perceived inaction.
The Court stated in Tolentino v. Secretary of Finance:30
Disregard of the essential limits imposed by the case and controversy requirement can in the long run
only result in undermining our authority as a court of law. For, as judges, what we are called upon to
render is judgment according to law, not according to what may appear to be the opinion of the day…
Hence, "over nothing but cases and controversies can courts exercise jurisdiction, and it is to make
the exercise of that jurisdiction effective that they are allowed to pass upon constitutional
questions."31 Admirable though the sentiments of the Court may be, it must act within jurisdictional
limits. These limits are founded upon the traditional requirement of a cause of action: "the act or
omission by which a party violates a right of another."32 In constitutional cases, for every writ or remedy,
there must be a clear pronouncement of the corresponding right which has been infringed. Only then
can there surface that "clear concreteness provided when a question emerges precisely framed and
necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted
situation embracing conflicting and demanding interests."33
Unfortunately, the Court fails to distinguish between a pronouncement on violation of rights on one
hand, and non-performance of duties vis-à-vis operational instructions, on the other. Moreover, it also
dabbles in an interpretation of constitutional rights in a manner that is dangerously pre-emptive of
legally available remedies.
The "continuing mandamus" palpably overlaps with the power of congressional oversight.
Article 6, Section 22 of the 1987 Constitution states:
The heads of department may upon their own initiative, with the consent of the President, or upon the
request of either House, or as the rules of each House shall provide, appear before and be heard by
such House on any matter pertaining to their departments. Written questions shall be submitted to the
President of the Senate or the Speaker of the House of Representatives at least three days before
their scheduled appearance. Interpellations shall not be limited to written questions, but may cover
matters related thereto. When the security of the state or the public interest so requires and the
President so states in writing, the appearance shall be conducted in executive session.
This provision pertains to the power to conduct a question hour, the objective of which is to obtain
information in pursuit of Congress’ oversight function. Macalintal v. Comelec34 discussed the scope of
congressional oversight in full. Oversight refers to the power of the legislative department to check,
monitor and ensure that the laws it has enacted are enforced:
The power of Congress does not end with the finished task of legislation. Concomitant with its
principal power to legislate is the auxiliary power to ensure that the laws it enacts are faithfully
executed. As well stressed by one scholar, the legislature "fixes the main lines of substantive policy
and is entitled to see that administrative policy is in harmony with it; it establishes the volume and
purpose of public expenditures and ensures their legality and propriety; it must be satisfied that internal
administrative controls are operating to secure economy and efficiency; and it informs itself of the
conditions of administration of remedial measure.
………
Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to monitor

bureaucratic compliance with program objectives, (b) to determine whether agencies are properly
administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of
legislative authority, and (d) to assess executive conformity with the congressional perception of public
interest.
………
Congress, thus, uses its oversight power to make sure that the administrative agencies
perform their functions within the authority delegated to them.
Macalintal v. Comelec further discusses that legislative supervision under the oversight power
connotes a continuing and informed awareness on the part of Congress regarding executive
operations in a given administrative area. Because the power to legislate includes the power to ensure
that the laws are enforced, this monitoring power has been granted by the Constitution to the
legislature. In cases of executive non-implementation of statutes, the courts cannot justify the use of
"continuing mandamus," as it would by its very definition overlap with the monitoring power under
congressional oversight. The Resolution does not only encroach upon the general supervisory function
of the Executive, it also diminished and arrogated unto itself the power of congressional oversight.
Conclusion
This Court cannot nobly defend the environmental rights of generations of Filipinos enshrined in the
Constitution while in the same breath eroding the foundations of that very instrument from which it
draws its power. While the remedy of "continuing mandamus" has evolved out of a Third World
jurisdiction similar to ours, we cannot overstep the boundaries laid down by the rule of law. Otherwise,
this Court would rush recklessly beyond the delimitations precisely put in place to safeguard excesses
of power. The tribunal, considered by many citizens as the last guardian of fundamental rights, would
then resemble nothing more than an idol with feet of clay: strong in appearance, but weak in
foundation.
…The Court becomes a conscience by acting to remind us of limitation on power, even judicial power,
and the interrelation of good purposes with good means. Morality is not an end dissociated from
means. There is a morality of morality, which respects the limitation of office and the fallibility of the
human mind…self-limitation is the first mark of the master. That, too is part of the role of the
conscience.35
The majority Resolution would, at the same time, cast the light of scrutiny more harshly on judicial
action in which the Court’s timely exercise of its powers is called for – as in the cases of prisoners
languishing in jail whose cases await speedy resolution by this Court. There would then be nothing to
stop the executive and the legislative departments from considering as fair game the judiciary’s own
accountability in its clearly delineated department.
MARIA LOURDES P. A. SERENO
Associate Justice
G.R. No. 196870 June 26, 2012
BORACAY FOUNDATION, INC., Petitioner,

vs.
THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE
PHILIPPINE RECLAMATION AUTHORITY, AND THE DENR-EMB (REGION VI), Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
In resolving this controversy, the Court took into consideration that all the parties involved share
common goals in pursuit of certain primordial State policies and principles that are enshrined in the
Constitution and pertinent laws, such as the protection of the environment, the empowerment of the
local government units, the promotion of tourism, and the encouragement of the participation of the
private sector. The Court seeks to reconcile the respective roles, duties and responsibilities of the
petitioner and respondents in achieving these shared goals within the context of our Constitution,
laws and regulations.
Nature of the Case
This is an original petition for the issuance of an Environmental Protection Order in the nature of a
continuing mandamus under A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for
Environmental Cases, promulgated on April 29, 2010.
The Parties
Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic corporation.
Its primary purpose is "to foster a united, concerted and environment-conscious development of
Boracay Island, thereby preserving and maintaining its culture, natural beauty and ecological
balance, marking the island as the crown jewel of Philippine tourism, a prime tourist destination in
Asia and the whole world."1 It counts among its members at least sixty (60) owners and
representatives of resorts, hotels, restaurants, and similar institutions; at least five community
organizations; and several environmentally-conscious residents and advocates.2
Respondent Province of Aklan (respondent Province) is a political subdivision of the government

created pursuant to Republic Act No. 1414, represented by Honorable Carlito S. Marquez, the
Provincial Governor (Governor Marquez).
Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public Estates
Authority (PEA), is a government entity created by Presidential Decree No. 1084,3 which states that
one of the purposes for which respondent PRA was created was to reclaim land, including foreshore
and submerged areas. PEA eventually became the lead agency primarily responsible for all
reclamation projects in the country under Executive Order No. 525, series of 1979. In June 2006, the
President of the Philippines issued Executive Order No. 543, delegating the power "to approve
reclamation projects to PRA through its governing Board, subject to compliance with existing laws
and rules and further subject to the condition that reclamation contracts to be executed with any
person or entity (must) go through public bidding."4
Respondent Department of Environment and Natural Resources – Environmental Management
Bureau (DENR-EMB), Regional Office VI (respondent DENR-EMB RVI), is the government agency
in the Western Visayas Region authorized to issue environmental compliance certificates regarding
projects that require the environment’s protection and management in the region.5
Summary of Antecedent Facts
Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the
Philippines and one of the country’s most popular tourist destinations, was declared a tourist zone
and marine reserve in 1973 under Presidential Proclamation No. 1801.6 The island comprises the
barangays of Manoc-manoc, Balabag, and Yapak, all within the municipality of Malay, in the
province of Aklan.7
Petitioner describes Boracay as follows:
Boracay is well-known for its distinctive powdery white-sand beaches which are the product of the
unique ecosystem dynamics of the area. The island itself is known to come from the uplifted
remnants of an ancient reef platform. Its beaches, the sandy land strip between the water and the
area currently occupied by numerous establishments, is the primary draw for domestic and
international tourists for its color, texture and other unique characteristics. Needless to state, it is the
premier domestic and international tourist destination in the Philippines.8
More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger Terminal
at Barangay Caticlan to be the main gateway to Boracay. It also built the corresponding Cagban
Jetty Port and Passenger Terminal to be the receiving end for tourists in Boracay. Respondent
Province operates both ports "to provide structural facilities suited for locals, tourists and guests and
to provide safety and security measures."9
In 2005, Boracay 2010 Summit was held and participated in by representatives from national
government agencies, local government units (LGUs), and the private sector. Petitioner was one of
the organizers and participants thereto. The Summit aimed "to re-establish a common vision of all
stakeholders to ensure the conservation, restoration, and preservation of Boracay Island" and "to
develop an action plan that [would allow] all sectors to work in concert among and with each other
for the long term benefit and sustainability of the island and the community."10 The Summit yielded a
Terminal Report11 stating that the participants had shared their dream of having world-class land,
water and air infrastructure, as well as given their observations that government support was lacking,
infrastructure was poor, and, more importantly, the influx of tourists to Boracay was increasing. The
Report showed that there was a need to expand the port facilities at Caticlan due to congestion in
the holding area of the existing port, caused by inadequate facilities, thus tourists suffered long
queues while waiting for the boat ride going to the island.12
Respondent Province claimed that tourist arrivals to Boracay reached approximately 649,559 in
2009 and 779,666 in 2010, and this was expected to reach a record of 1 million tourist arrivals in the
years to come. Thus, respondent Province conceptualized the expansion of the port facilities at
Barangay Caticlan.13
The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13, s. 200814 on
April 25, 2008 stating that it had learned that respondent Province had filed an application with the
DENR for a foreshore lease of areas along the shorelines of Barangay Caticlan, and manifesting its
strong opposition to said application, as the proposed foreshore lease practically covered almost all
the coastlines of said barangay, thereby technically diminishing its territorial jurisdiction, once
granted, and depriving its constituents of their statutory right of preference in the development and
utilization of the natural resources within its jurisdiction. The resolution further stated that respondent
Province did not conduct any consultations with the Sangguniang Barangay of Caticlan regarding
the proposed foreshore lease, which failure the Sanggunian considered as an act of bad faith on the
part of respondent Province.15
On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved

Resolution No. 2008-369,16 formally authorizing Governor Marquez to enter into negotiations towards
the possibility of effecting self-liquidating and income-producing development and livelihood projects
to be financed through bonds, debentures, securities, collaterals, notes or other obligations as
provided under Section 299 of the Local Government Code, with the following priority projects: (a)
renovation/rehabilitation of the Caticlan/Cagban Passenger Terminal Buildings and Jetty Ports; and
(b) reclamation of a portion of Caticlan foreshore for commercial purposes.17 This step was taken as
respondent Province’s existing jetty port and passenger terminal was funded through bond flotation,
which was successfully redeemed and paid ahead of the target date. This was allegedly cited as one
of the LGU’s Best Practices wherein respondent Province was given the appropriate
commendation.18
Respondent Province included the proposed expansion of the port facilities at Barangay Caticlan in
its 2009 Annual Investment Plan,19 envisioned as its project site the area adjacent to the existing jetty
port, and identified additional areas along the coastline of Barangay Caticlan as the site for future
project expansion.20
Governor Marquez sent a letter to respondent PRA on March 12, 200921 expressing the interest of
respondent Province to reclaim about 2.64 hectares of land along the foreshores of Barangay
Caticlan, Municipality of Malay, Province of Aklan.
Sometime in April 2009, respondent Province entered into an agreement with the Financial
Advisor/Consultant that won in the bidding process held a month before, to conduct the necessary
feasibility study of the proposed project for the Renovation/Rehabilitation of the Caticlan Passenger
Terminal Building and Jetty Port, Enhancement and Recovery of Old Caticlan Coastline, and
Reclamation of a Portion of Foreshore for Commercial Purposes (the Marina Project), in Malay,
Aklan.22
Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province issued

Resolution No. 2009–110,23 which authorized Governor Marquez to file an application to reclaim the
2.64 hectares of foreshore area in Caticlan, Malay, Aklan with respondent PRA.
Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which
focused on the land reclamation of 2.64 hectares by way of beach enhancement and recovery of the
old Caticlan coastline for the rehabilitation and expansion of the existing jetty port, and for its future
plans – the construction of commercial building and wellness center. The financial component of the
said study was Two Hundred Sixty Million Pesos (₱260,000,000.00). Its suggested financing
scheme was bond flotation.24
Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition to
the intended foreshore lease application, through Resolution No. 044,25 approved on July 22, 2009,
manifesting therein that respondent Province’s foreshore lease application was for business
enterprise purposes for its benefit, at the expense of the local government of Malay, which by
statutory provisions was the rightful entity "to develop, utilize and reap benefits from the natural
resources found within its jurisdiction."26
In August 2009, a Preliminary Geohazard Assessment27 for the enhancement/expansion of the
existing Caticlan Jetty Port and Passenger Terminal through beach zone restoration and Protective
Marina Developments in Caticlan, Malay, Aklan was completed.
Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring

Program (EPRMP)28 to DENR-EMB RVI, which he had attached to his letter29 dated September 19,
2009, as an initial step for securing an Environmental Compliance Certificate (ECC). The letter reads
in part:
With the project expected to start its construction implementation next month, the province hereby
assures your good office that it will give preferential attention to and shall comply with whatever
comments that you may have on this EPRMP.30 (Emphasis added.)
Respondent Province was then authorized to issue "Caticlan Super Marina Bonds" for the purpose
of funding the renovation of the Caticlan Jetty Port and Passenger Terminal Building, and the
reclamation of a portion of the foreshore lease area for commercial purposes in Malay, Aklan
through Provincial Ordinance No. 2009-013, approved on September 10, 2009. The said ordinance
authorized Governor Marquez to negotiate, sign and execute agreements in relation to the issuance
of the Caticlan Super Marina Bonds in the amount not exceeding ₱260,000,000.00.31
Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial Ordinance
No. 2009-01532on October 1, 2009, amending Provincial Ordinance No. 2009-013, authorizing the
bond flotation of the Province of Aklan through Governor Marquez to fund the Marina Project and
appropriate the entire proceeds of said bonds for the project, and further authorizing Governor
Marquez to negotiate, sign and execute contracts or agreements pertinent to the transaction.33
Within the same month of October 2009, respondent Province deliberated on the possible expansion
from its original proposed reclamation area of 2.64 hectares to forty (40) hectares in order to
maximize the utilization of its resources and as a response to the findings of the Preliminary
Geohazard Assessment study which showed that the recession and retreat of the shoreline caused
by coastal erosion and scouring should be the first major concern in the project site and nearby
coastal area. The study likewise indicated the vulnerability of the coastal zone within the proposed
project site and the nearby coastal area due to the effects of sea level rise and climate change which
will greatly affect the social, economic, and environmental situation of Caticlan and nearby Malay
coastal communities.34
In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez wrote:
With our substantial compliance with the requirements under Administrative Order No. 2007-2
relative to our request to PRA for approval of the reclamation of the [proposed Beach Zone
Restoration and Protection Marine Development in Barangays Caticlan and Manoc-Manoc] and as a
result of our discussion during the [meeting with the respondent PRA on October 12, 2009], may we
respectfully submit a revised Reclamation Project Description embodying certain revisions/changes
in the size and location of the areas to be reclaimed. x x x.
On another note, we are pleased to inform your Office that the bond flotation we have secured with
the Local Government Unit Guarantee Corporation (LGUGC) has been finally approved last October
14, 2009. This will pave the way for the implementation of said project. Briefly, the Province has
been recognized by the Bureau of Local Government Finance (BLGF) for its capability to meet its
loan obligations. x x x.
With the continued increase of tourists coming to Boracay through Caticlan, the Province is
venturing into such development project with the end in view of protection and/or restoring certain
segments of the shoreline in Barangays Caticlan (Caticlan side) and Manoc-manoc (Boracay side)
which, as reported by experts, has been experiencing tremendous coastal erosion.
For the project to be self-liquidating, however, we will be developing the reclaimed land for
commercial and tourism-related facilities and for other complementary uses.35 (Emphasis ours.)
Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No. 2009-
29936 authorizing Governor Marquez to enter into a Memorandum of Agreement (MOA) with
respondent PRA in the implementation of the Beach Zone Restoration and Protection Marina
Development Project, which shall reclaim a total of 40 hectares in the areas adjacent to the jetty
ports at Barangay Caticlan and Barangay Manoc-manoc. The Sangguniang Panlalawigan approved
the terms and conditions of the necessary agreements for the implementation of the bond flotation of
respondent Province to fund the renovation/rehabilitation of the existing jetty port by way of
enhancement and recovery of the Old Caticlan shoreline through reclamation of an area of 2.64
hectares in the amount of ₱260,000,000.00 on December 1, 2009.37
Respondent Province gave an initial presentation of the project with consultation to the Sangguniang
Bayan of Malay38 on December 9, 2009.
Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094 and
authorized its General Manager/Chief Executive Officer (CEO) to enter into a MOA with respondent
Province for the implementation of the reclamation project.39
On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-096-7100 (the
questioned ECC) for Phase 1 of the Reclamation Project to the extent of 2.64 hectares to be done
along the Caticlan side beside the existing jetty port.40
On May 17, 2010, respondent Province entered into a MOA41 with respondent PRA. Under Article III,
the Project was described therein as follows:
The proposed Aklan Beach Zone Restoration and Protection Marina Development Project involves
the reclamation and development of approximately forty (40) hectares of foreshore and offshore
areas of the Municipality of Malay x x x.
The land use development of the reclamation project shall be for commercial, recreational and
institutional and other applicable uses.42 (Emphases supplied.)
It was at this point that respondent Province deemed it necessary to conduct a series of what it calls
"information-education campaigns," which provided the venue for interaction and dialogue with the
public, particularly the Barangay and Municipal officials of the Municipality of Malay, the residents of
Barangay Caticlan and Boracay, the stakeholders, and the non-governmental organizations (NGOs).
The details of the campaign are summarized as follows43 :
a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan;44
b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal;45
c. July 31, 2010 at Barangay Caticlan Plaza;46

d. September 15, 2010 at the Office of the Provincial Governor with Municipal Mayor of
Malay – Mayor John P. Yap;47
e. October 12, 2010 at the Office of the Provincial Governor with the Provincial Development
Council Executive Committee;48 and
f. October 29, 2010 at the Office of the Provincial Governor with Officials of LGU-Malay and
Petitioner.49
Petitioner claims that during the "public consultation meeting" belatedly called by respondent
Province on June 17, 2010, respondent Province presented the Reclamation Project and only then
detailed the actions that it had already undertaken, particularly: the issuance of the Caticlan Super
Marina Bonds; the execution of the MOA with respondent PRA; the alleged conduct of an
Environmental Impact Assessment (EIA) study for the reclamation project; and the expansion of the
project to forty (40) hectares from 2.64 hectares.50
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality reiterated
its strong opposition to respondent Province’s project and denied its request for a favorable
endorsement of the Marina Project.51
The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted on August
3, 2010, to request respondent PRA "not to grant reclamation permit and notice to proceed to the
Marina Project of the [respondent] Provincial Government of Aklan located at Caticlan, Malay,
Aklan."52
In a letter53 dated October 12, 2010, petitioner informed respondent PRA of its opposition to the
reclamation project, primarily for the reason that, based on the opinion of Dr. Porfirio M. Aliño, an
expert from the University of the Philippines Marine Science Institute (UPMSI), which he rendered
based on the documents submitted by respondent Province to obtain the ECC, a full EIA study is
required to assess the reclamation project’s likelihood of rendering critical and lasting effect on
Boracay considering the proximity in distance, geographical location, current and wind direction, and
many other environmental considerations in the area. Petitioner noted that said documents had
failed to deal with coastal erosion concerns in Boracay. It also noted that respondent Province failed
to comply with certain mandatory provisions of the Local Government Code, particularly, those
requiring the project proponent to conduct consultations with stakeholders.
Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its opposition to the
reclamation project to respondent Province, respondent PRA, respondent DENR-EMB, the National
Economic Development Authority Region VI, the Malay Municipality, and other concerned entities.54
Petitioner alleges that despite the Malay Municipality’s denial of respondent Province’s request for a
favorable endorsement, as well as the strong opposition manifested both by Barangay Caticlan and
petitioner as an NGO, respondent Province still continued with the implementation of the
Reclamation Project.55
On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside Resolution No.
046, s. 2010, of the Municipality of Malay and manifested its support for the implementation of the
aforesaid project through its Resolution No. 2010-022.56
On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under its
Resolution No. 4130. Respondent PRA wrote to respondent Province on October 19, 2010,
informing the latter to proceed with the reclamation and development of phase 1 of site 1 of its
proposed project. Respondent PRA attached to said letter its Evaluation Report dated October 18,
2010.57
Petitioner likewise received a copy of respondent PRA’s letter dated October 19, 2010, which
authorized respondent Province to proceed with phase 1 of the reclamation project, subject to
compliance with the requirements of its Evaluation Report. The reclamation project was described
as:
"[A] seafront development involving reclamation of an aggregate area of more or less, forty (40)
hectares in two (2) separate sites both in Malay Municipality, Aklan Province. Site 1 is in Brgy.
Caticlan with a total area of 36.82 hectares and Site 2 in Brgy. Manoc-Manoc, Boracay Island with a
total area of 3.18 hectares. Sites 1 and 2 are on the opposite sides of Tabon Strait, about 1,200
meters apart. x x x." 58 (Emphases added.)
The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034,59 addressed the
apprehensions of petitioner embodied in its Resolution No. 001, s. 2010, and supported the
implementation of the project. Said resolution stated that the apprehensions of petitioner with regard
to the economic, social and political negative impacts of the projects were mere perceptions and
generalities and were not anchored on definite scientific, social and political studies.
In the meantime, a study was commissioned by the Philippine Chamber of Commerce and Industry-
Boracay (PCCI-Boracay), funded by the Department of Tourism (DOT) with the assistance of,
among others, petitioner. The study was conducted in November 2010 by several marine
biologists/experts from the Marine Environmental Resources Foundation (MERF) of the UPMSI. The
study was intended to determine the potential impact of a reclamation project in the hydrodynamics
of the strait and on the coastal erosion patterns in the southern coast of Boracay Island and along
the coast of Caticlan.60
After noting the objections of the respective LGUs of Caticlan and Malay, as well as the
apprehensions of petitioner, respondent Province issued a notice to the contractor on December 1,
2010 to commence with the construction of the project.61
On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on Cooperatives,
Food, Agriculture, and Environmental Protection and the Committee on Tourism, Trade, Industry and
Commerce, conducted a joint committee hearing wherein the study undertaken by the MERF-UPMSI
was discussed.62 In attendance were Mr. Ariel Abriam, President of PCCI-Boracay, representatives
from the Provincial Government, and Dr. Cesar Villanoy, a professor from the UPMSI. Dr. Villanoy
said that the subject project, consisting of 2.64 hectares, would only have insignificant effect on the
hydrodynamics of the strait traversing the coastline of Barangay Caticlan and Boracay, hence, there
was a distant possibility that it would affect the Boracay coastline, which includes the famous white-
sand beach of the island.63
Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution No. 2011-
06564 noting the report on the survey of the channel between Caticlan and Boracay conducted by the
UPMSI in relation to the effects of the ongoing reclamation to Boracay beaches, and stating that Dr.
Villanoy had admitted that nowhere in their study was it pointed out that there would be an adverse
effect on the white-sand beach of Boracay.
During the First Quarter Regular Meeting of the Regional Development Council, Region VI (RDC-VI)
on April 16, 2011, it approved and supported the subject project (covering 2.64 hectares) through
RDC-VI Resolution No. VI-26, series of 2011.65
Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 stating that the
study conducted by the UPMSI confirms that the water flow across the Caticlan-Boracay channel is
primarily tide-driven, therefore, the marine scientists believe that the 2.64-hectare project of
respondent Province would not significantly affect the flow in the channel and would unlikely impact
the Boracay beaches. Based on this, PCCI-Boracay stated that it was not opposing the 2.64-hectare
Caticlan reclamation project on environmental grounds.66
On June 1, 2011, petitioner filed the instant Petition for Environmental Protection Order/Issuance of
the Writ of Continuing Mandamus. On June 7, 2011, this Court issued a Temporary Environmental
Protection Order (TEPO) and ordered the respondents to file their respective comments to the
petition.67
After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately issued an
order to the Provincial Engineering Office and the concerned contractor to cease and desist from
conducting any construction activities until further orders from this Court.
The petition is premised on the following grounds:
I.
The respondent Province, proponent of the reclamation project, failed to comply with relevant rules
and regulations in the acquisition of an ECC.
A. The reclamation project is co-located within environmentally critical areas requiring the
performance of a full, or programmatic, environmental impact assessment.
B. Respondent Province failed to obtain the favorable endorsement of the LGU concerned.
C. Respondent Province failed to conduct the required consultation procedures as required

by the Local Government Code.
D. Respondent Province failed to perform a full environmental impact assessment as

required by law and relevant regulations.
II.
The reclamation of land bordering the strait between Caticlan and Boracay shall adversely affect the
frail ecological balance of the area.68
Petitioner objects to respondent Province’s classification of the reclamation project as single instead
of co-located, as "non-environmentally critical," and as a mere "rehabilitation" of the existing jetty
port. Petitioner points out that the reclamation project is on two sites (which are situated on the
opposite sides of Tabon Strait, about 1,200 meters apart):
 36.82 hectares – Site 1, in Bgy. Caticlan

 3.18 hectares – Site 2, in Manoc-manoc, Boracay Island69
Phase 1, which was started in December 2010 without the necessary permits,70 is located on the
Caticlan side of a narrow strait separating mainland Aklan from Boracay. In the implementation of
the project, respondent Province obtained only an ECC to conduct Phase 1, instead of an ECC on
the entire 40 hectares. Thus, petitioner argues that respondent Province abused and exploited the
Revised Procedural Manual for DENR Administrative Order No. 30, Series of 2003 (DENR DAO
2003-30)71 relating to the acquisition of an ECC by:
1. Declaring the reclamation project under "Group II Projects-Non-ECP (environmentally

critical project) in ECA (environmentally critical area) based on the type and size of the area,"
and
2. Failing to declare the reclamation project as a co-located project application which would
have required the Province to submit a Programmatic Environmental Impact Statement
(PEIS)72 or Programmatic Environmental [Performance] Report Management Plan
(PE[P]RMP).73 (Emphases ours.)
Petitioner further alleges that the Revised Procedural Manual (on which the classification above is
based, which merely requires an Environmental Impact Statement [EIS] for Group II projects) is
patently ultra vires, and respondent DENR-EMB RVI committed grave abuse of discretion because
the laws on EIS, namely, Presidential Decree Nos. 1151 and 1586, as well as Presidential
Proclamation No. 2146, clearly indicate that projects in environmentally critical areas are to be
immediately considered environmentally critical. Petitioner complains that respondent Province
applied for an ECC only for Phase 1; hence, unlawfully
evading the requirement that co-located projects74 within Environmentally Critical Areas (ECAs) must
submit a PEIS and/or a PEPRMP.
Petitioner argues that respondent Province fraudulently classified and misrepresented the project as
a Non-ECP in an ECA, and as a single project instead of a co-located one. The impact assessment
allegedly performed gives a patently erroneous and wrongly-premised appraisal of the possible
environmental impact of the reclamation project. Petitioner contends that respondent Province’s
choice of classification was designed to avoid a comprehensive impact assessment of the
reclamation project.
Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately disregarded its
duty to ensure that the environment is protected from harmful developmental projects because it
allegedly performed only a cursory and superficial review of the documents submitted by the
respondent Province for an ECC, failing to note that all the information and data used by respondent
Province in its application for the ECC were all dated and not current, as data was gathered in the
late 1990s for the ECC issued in 1999 for the first jetty port. Thus, petitioner alleges that respondent
DENR-EMB RVI ignored the environmental impact to Boracay, which involves changes in the
structure of the coastline that could contribute to the changes in the characteristics of the sand in the
beaches of both Caticlan and Boracay.
Petitioner insists that reclamation of land at the Caticlan side will unavoidably adversely affect the
Boracay side and notes that the declared objective of the reclamation project is for the exploitation of
Boracay’s tourist trade, since the project is intended to enhance support services thereto. But,
petitioner argues, the primary reason for Boracay’s popularity is its white-sand beaches which will be
negatively affected by the project.
Petitioner alleges that respondent PRA had required respondent Province to obtain the favorable
endorsement of the LGUs of Barangay Caticlan and Malay Municipality pursuant to the consultation
procedures as required by the Local Government Code.75 Petitioner asserts that the reclamation
project is in violation not only of laws on EIS but also of the Local Government Code as respondent
Province failed to enter into proper consultations with the concerned LGUs. In fact, the Liga ng mga
Barangay-Malay Chapter also expressed strong opposition against the project.76
Petitioner cites Sections 26 and 27 of the Local Government Code, which require consultations if the
project or program may cause pollution, climactic change, depletion of non-renewable resources,
etc. According to petitioner, respondent Province ignored the LGUs’ opposition expressed as early
as 2008. Not only that, respondent Province belatedly called for public "consultation meetings" on
June 17 and July 28, 2010, after an ECC had already been issued and the MOA between
respondents PRA and Province had already been executed. As the petitioner saw it, these were not
consultations but mere "project presentations."
Petitioner claims that respondent Province, aided and abetted by respondents PRA and DENR-
EMB, ignored the spirit and letter of the Revised Procedural Manual, intended to implement the
various regulations governing the Environmental Impact Assessments (EIAs) to ensure that
developmental projects are in line with sustainable development of natural resources. The project
was conceptualized without considering alternatives.
Further, as to its allegation that respondent Province failed to perform a full EIA, petitioner argues
that while it is true that as of now, only the Caticlan side has been issued an ECC, the entire project
involves the Boracay side, which should have been considered a co-located project. Petitioner
claims that any project involving Boracay requires a full EIA since it is an ECA. Phase 1 of the
project will affect Boracay and Caticlan as they are separated only by a narrow strait; thus, it should
be considered an ECP. Therefore, the ECC and permit issued must be invalidated and cancelled.
Petitioner contends that a study shows that the flow of the water through a narrower channel due to
the reclamation project will likely divert sand transport off the southwest part of Boracay, whereas
the characteristic coast of the Caticlan side of the strait indicate stronger sediment transport.77 The
white-sand beaches of Boracay and its surrounding marine environment depend upon the natural
flow of the adjacent waters.
Regarding its claim that the reclamation of land bordering the strait between Caticlan and Boracay
shall adversely affect the frail ecological balance of the area, petitioner submits that while the study
conducted by the MERF-UPMSI only considers the impact of the reclamation project on the land, it
is undeniable that it will also adversely affect the already frail ecological balance of the area. The
effect of the project would have been properly assessed if the proper EIA had been performed prior
to any implementation of the project.
According to petitioner, respondent Province’s intended purposes do not prevail over its duty and
obligation to protect the environment. Petitioner believes that rehabilitation of the Jetty Port may be
done through other means.
In its Comment78 dated June 21, 2011, respondent Province claimed that application for reclamation
of 40 hectares is advantageous to the Provincial Government considering that its filing fee would
only cost Php20,000.00 plus Value Added Tax (VAT) which is also the minimum fee as prescribed
under Section 4.2 of Administrative Order No. 2007-2.79
Respondent Province considers the instant petition to be premature; thus, it must necessarily fail for
lack of cause of action due to the failure of petitioner to fully exhaust the available administrative
remedies even before seeking judicial relief. According to respondent Province, the petition primarily
assailed the decision of respondent DENR-EMB RVI in granting the ECC for the subject project
consisting of 2.64 hectares and sought the cancellation of the ECC for alleged failure of respondent
Province to submit proper documentation as required for its issuance. Hence, the grounds relied
upon by petitioner can be addressed within the confines of administrative processes provided by
law.
Respondent Province believes that under Section 5.4.3 of DENR Administrative Order No. 2003-30
(DAO 2003-30),80 the issuance of an ECC81 is an official decision of DENR-EMB RVI on the
application of a project proponent.82It cites Section 6 of DENR DAO 2003-30, which provides for a
remedy available to the party aggrieved by the final decision on the proponent’s ECC applications.
Respondent Province argues that the instant petition is anchored on a wrong premise that results to
petitioner’s unfounded fears and baseless apprehensions. It is respondent Province’s contention that
its 2.64-hectare reclamation project is considered as a "stand alone project," separate and
independent from the approved area of 40 hectares. Thus, petitioner should have observed the
difference between the "future development plan" of respondent Province from its "actual project"
being undertaken.83
Respondent Province clearly does not dispute the fact that it revised its original application to
respondent PRA from 2.64 hectares to 40 hectares. However, it claims that such revision is part of
its future plan, and implementation thereof is "still subject to availability of funds, independent
scientific environmental study, separate application of ECC and notice to proceed to be issued by
respondent PRA."84
Respondent Province goes on to claim that "[p]etitioner’s version of the Caticlan jetty port expansion
project is a bigger project which is still at the conceptualization stage. Although this project was
described in the Notice to Proceed issued by respondent PRA to have two phases, 36.82 hectares in
Caticlan and 3.18 hectares in Boracay [Island,] it is totally different from the [ongoing] Caticlan jetty
port expansion project."85
Respondent Province says that the Accomplishment Report86 of its Engineering Office would attest
that the actual project consists of 2.64 hectares only, as originally planned and conceptualized,
which was even reduced to 2.2 hectares due to some construction and design modifications.
Thus, respondent Province alleges that from its standpoint, its capability to reclaim is limited to 2.64
hectares only, based on respondent PRA’s Evaluation Report87 dated October 18, 2010, which was in
turn the basis of the issuance of the Notice to Proceed dated October 19, 2010, because the
project’s financial component is ₱260,000,000.00 only. Said Evaluation Report indicates that the
implementation of the other phases of the project including site 2, which consists of the other
portions of the 40-hectare area that includes a portion in Boracay, is still within the 10-year period
and will depend largely on the availability of funds of respondent Province.88
So, even if respondent PRA approved an area that would total up to 40 hectares, it was divided into
phases in order to determine the period of its implementation. Each phase was separate and
independent because the source of funds was also separate. The required documents and
requirements were also specific for each phase. The entire approved area of 40 hectares could be
implemented within a period of 10 years but this would depend solely on the availability of funds.89
As far as respondent Province understands it, additional reclamations not covered by the ECC,
which only approved 2.64 hectares, should undergo another EIA. If respondent Province intends to
commence the construction on the other component of the 40 hectares, then it agrees that it is
mandated to secure a new ECC.90
Respondent Province admits that it dreamt of a 40-hectare project, even if it had originally planned
and was at present only financially equipped and legally compliant to undertake 2.64 hectares of the
project, and only as an expansion of its old jetty port.91
Respondent Province claims that it has complied with all the necessary requirements for securing an
ECC. On the issue that the reclamation project is within an ECA requiring the performance of a full
or programmatic EIA, respondent Province reiterates that the idea of expanding the area to 40
hectares is only a future plan. It only secured an ECC for 2.64 hectares, based on the limits of its
funding and authority. From the beginning, its intention was to rehabilitate and expand the existing
jetty port terminal to accommodate an increasing projected traffic. The subject project is specifically
classified under DENR DAO 2003-30 on its Project Grouping Matrix for Determination of EIA Report
Type considered as Minor Reclamation Projects falling under Group II – Non ECP in an ECA.
Whether 2.64 or 40 hectares in area, the subject project falls within this classification.
Consequently, respondent Province claims that petitioner erred in considering the ongoing
reclamation project at Caticlan, Malay, Aklan, as co-located within an ECA.
Respondent Province, likewise argues that the 2.64-hectare project is not a component of the
approved 40-hectare area as it is originally planned for the expansion site of the existing Caticlan
jetty port. At present, it has no definite conceptual construction plan of the said portion in Boracay
and it has no financial allocation to initiate any project on the said Boracay portion.
Furthermore, respondent Province contends that the present project is located in Caticlan while the
alleged component that falls within an ECA is in Boracay. Considering its geographical location, the
two sites cannot be considered as a contiguous area for the reason that it is separated by a body of
water – a strait that traverses between the mainland Panay wherein Caticlan is located and Boracay.
Hence, it is erroneous to consider the two sites as a co-located project within an ECA. Being a
"stand alone project" and an expansion of the existing jetty port, respondent DENR-EMB RVI had
required respondent Province to perform an EPRMP to secure an ECC as sanctioned by Item No.
8(b), page 7 of DENR DAO 2003-30.
Respondent Province contends that even if, granting for the sake of argument, it had erroneously
categorized its project as Non-ECP in an ECA, this was not a final determination. Respondent
DENR-EMB RVI, which was the administrator of the EIS system, had the final decision on this
matter. Under DENR DAO 2003-30, an application for ECC, even for a Category B2 project where
an EPRMP is conducted, shall be subjected to a review process. Respondent DENR-EMB RVI had
the authority to deny said application. Its Regional Director could either issue an ECC for the project
or deny the application. He may also require a more comprehensive EIA study. The Regional
Director issued the ECC based on the EPRMP submitted by respondent Province and after the
same went through the EIA review process.
Thus, respondent Province concludes that petitioner’s allegation of this being a "co-located project"
is premature if not baseless as the bigger reclamation project is still on the conceptualization stage.
Both respondents PRA and Province are yet to complete studies and feasibility studies to embark on
another project.
Respondent Province claims that an ocular survey of the reclamation project revealed that it had
worked within the limits of the ECC.92
With regard to petitioner’s allegation that respondent Province failed to get the favorable
endorsement of the concerned LGUs in violation of the Local Government Code, respondent
Province contends that consultation vis-à-vis the favorable endorsement from the concerned LGUs
as contemplated under the Local Government Code are merely tools to seek advice and not a power
clothed upon the LGUs to unilaterally approve or disapprove any government projects. Furthermore,
such endorsement is not necessary for projects falling under Category B2 unless required by the
DENR-EMB RVI, under Section 5.3 of DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance of permits and
certifications as a pre-requisite for the issuance of an ECC. Respondent Province claims to have
conducted consultative activities with LGUs in connection with Sections 26 and 27 of the Local
Government Code. The vehement and staunch objections of both the Sangguniang Barangay of
Caticlan and the Sangguniang Bayan of Malay, according to respondent Province, were not rooted
on its perceived impact upon the people and the community in terms of environmental or ecological
balance, but due to an alleged conflict with their "principal position to develop, utilize and reap
benefits from the natural resources found within its jurisdiction."93 Respondent Province argues that
these concerns are not within the purview of the Local Government Code. Furthermore, the
Preliminary Geohazard Assessment Report and EPRMP as well as Sangguniang Panlalawigan
Resolution Nos. 2010-022 and 2010-034 should address any environmental issue they may raise.
Respondent Province posits that the spirit and intent of Sections 26 and 27 of the Local Government
Code is to create an avenue for parties, the proponent and the LGU concerned, to come up with a
tool in harmonizing its views and concerns about the project. The duty to consult does not
automatically require adherence to the opinions during the consultation process. It is allegedly not
within the provisions to give the full authority to the LGU concerned to unilaterally approve or
disapprove the project in the guise of requiring the proponent of securing its favorable endorsement.
In this case, petitioner is calling a halt to the project without providing an alternative resolution to
harmonize its position and that of respondent Province.
Respondent Province claims that the EPRMP94 would reveal that:
[T]he area fronting the project site is practically composed of sand. Dead coral communities may be
found along the vicinity. Thus, fish life at the project site is quite scarce due to the absence of marine
support systems like the sea grass beds and coral reefs.
x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point of jetty to
the shallowest point, there was no more coral patch and the substrate is sandy. It is of public
knowledge that the said foreshore area is being utilized by the residents ever since as berthing or
anchorage site of their motorized banca. There will be no possibility of any coral development
therein because of its continuous utilization. Likewise, the activity of the strait that traverses between
the main land Caticlan and Boracay Island would also be a factor of the coral development. Corals
[may] only be formed within the area if there is scientific human intervention, which is absent up to
the present.
In light of the foregoing premise, it casts serious doubt on petitioner’s allegations pertaining to the
environmental effects of Respondent-LGU’s 2.64 hectares reclamation project. The alleged
environmental impact of the subject project to the beaches of Boracay Island remains unconfirmed.
Petitioner had unsuccessfully proven that the project would cause imminent, grave and irreparable
injury to the community.95
Respondent Province prayed for the dissolution of the TEPO, claiming that the rules provide that the
TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause
irreparable damage to the party or person enjoined, while the applicant may be fully compensated
for such damages as he may suffer and subject to the posting of a sufficient bond by the party or
person enjoined. Respondent Province contends that the TEPO would cause irreparable damage in
two aspects:
a. Financial dislocation and probable bankruptcy; and

b. Grave and imminent danger to safety and health of inhabitants of immediate area,
including tourists and passengers serviced by the jetty port, brought about by the abrupt
cessation of development works.
As regards financial dislocation, the arguments of respondent Province are summarized below:
1. This project is financed by bonds which the respondent Province had issued to its
creditors as the financing scheme in funding the present project is by way of credit financing
through bond flotation.
2. The funds are financed by a Guarantee Bank – getting payment from bonds, being sold to
investors, which in turn would be paid by the income that the project would realize or incur
upon its completion.
3. While the project is under construction, respondent Province is appropriating a portion of

its Internal Revenue Allotment (IRA) budget from the 20% development fund to defray the
interest and principal amortization due to the Guarantee Bank.
4. The respondent Province’s IRA, regular income, and/or such other revenues or funds, as
may be permitted by law, are being used as security for the payment of the said loan used
for the project’s construction.
5. The inability of the subject project to earn revenues as projected upon completion will
compel the Province to shoulder the full amount of the obligation, starting from year 2012.
6. Respondent province is mandated to assign its IRA, regular income and/or such other
revenues or funds as permitted by law; if project is stopped, detriment of the public welfare
and its constituents.96
As to the second ground for the dissolution of the TEPO, respondent Province argues:
1. Non-compliance with the guidelines of the ECC may result to environmental hazards most
especially that reclaimed land if not properly secured may be eroded into the sea.
2. The construction has accomplished 65.26 percent of the project. The embankment that
was deposited on the project has no proper concrete wave protection that might be washed
out in the event that a strong typhoon or big waves may occur affecting the strait and the
properties along the project site. It is already the rainy season and there is a big possibility of
typhoon occurrence.
3. If said incident occurs, the aggregates of the embankment that had been washed out
might be transferred to the adjoining properties which could affect its natural environmental
state.
4. It might result to the total alteration of the physical landscape of the area attributing to
environmental disturbance.
5. The lack of proper concrete wave protection or revetment would cause the total erosion of
the embankment that has been dumped on the accomplished area.97
Respondent Province claims that petitioner will not stand to suffer immediate, grave and irreparable
injury or damage from the ongoing project. The petitioner’s perceived fear of environmental
destruction brought about by its erroneous appreciation of available data is unfounded and does not
translate into a matter of extreme urgency. Thus, under the Rules of Procedure on Environmental
Cases, the TEPO may be dissolved.
Respondent PRA filed its Comment98 on June 22, 2011. It alleges that on June 24, 2006, Executive
Order No. 543 delegated the power "to approve reclamation projects to respondent PRA through its
governing Board, subject to compliance with existing laws and rules and further subject to the
condition that reclamation contracts to be executed with any person or entity (must) go through
public bidding."
Section 4 of respondent PRA’s Administrative Order No. 2007-2 provides for the approval process
and procedures for various reclamation projects to be undertaken. Respondent PRA prepared an
Evaluation Report on November 5, 200999 regarding Aklan’s proposal to increase its project to 40
hectares.
Respondent PRA contends that it was only after respondent Province had complied with the
requirements under the law that respondent PRA, through its Board of Directors, approved the
proposed project under its Board Resolution No. 4094.100 In the same Resolution, respondent PRA
Board authorized the General Manager/CEO to execute a MOA with the Aklan provincial
government to implement the reclamation project under certain conditions.
The issue for respondent PRA was whether or not it approved the respondent Province’s 2.64-
hectare reclamation project proposal in willful disregard of alleged "numerous irregularities" as
claimed by petitioner.101
Respondent PRA claims that its approval of the Aklan Reclamation Project was in accordance with
law and its rules. Indeed, it issued the notice to proceed only after Aklan had complied with all the
requirements imposed by existing laws and regulations. It further contends that the 40 hectares
involved in this project remains a plan insofar as respondent PRA is concerned. What has been
approved for reclamation by respondent PRA thus far is only the 2.64-hectare reclamation project.
Respondent PRA reiterates that it approved this reclamation project after extensively reviewing the
legal, technical, financial, environmental, and operational aspects of the proposed reclamation.102
One of the conditions that respondent PRA Board imposed before approving the Aklan project was
that no reclamation work could be started until respondent PRA has approved the detailed
engineering plans/methodology, design and specifications of the reclamation. Part of the required
submissions to respondent PRA includes the drainage design as approved by the Public Works
Department and the ECC as issued by the DENR, all of which the Aklan government must submit to
respondent PRA before starting any reclamation works.103 Under Article IV(B)(3) of the MOA between
respondent PRA and Aklan, the latter is required to submit, apart from the ECC, the following
requirements for respondent PRA’s review and approval, as basis for the issuance of a Notice to
Proceed (NTP) for Reclamation Works:
(a) Land-form plan with technical description of the metes and bounds of the same land-
form;
(b) Final master development and land use plan for the project;
(c) Detailed engineering studies, detailed engineering design, plans and specification for
reclamation works, reclamation plans and methodology, plans for the sources of fill
materials;
(d) Drainage plan vis-a-vis the land-form approved by DPWH Regional Office to include a
cost effective and efficient drainage system as may be required based on the results of the
studies;
(e) Detailed project cost estimates and quantity take-off per items of work of the rawland
reclamation components, e.g. reclamation containment structures and soil consolidation;
(f) Organizational chart of the construction arm, manning table, equipment schedule for the
project; and,
(g) Project timetable (PERT/CPM) for the entire project construction period.104
In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the MOA to
strictly comply with all conditions of the DENR-EMB-issued ECC "and/or comply with pertinent local
and international commitments of the Republic of the Philippines to ensure environmental
protection."105
In its August 11, 2010 letter,106 respondent PRA referred for respondent Province’s appropriate action
petitioner’s Resolution 001, series of 2010 and Resolution 46, series of 2010, of the Sangguniang
Bayan of Malay. Governor Marquez wrote respondent PRA107 on September 16, 2010 informing it that
respondent Province had already met with the different officials of Malay, furnishing respondent PRA
with the copies of the minutes of such meetings/presentations. Governor Marquez also assured
respondent PRA that it had complied with the consultation requirements as far as Malay was
concerned.
Respondent PRA claims that in evaluating respondent Province’s project and in issuing the
necessary NTP for Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port expansion and
modernization, respondent PRA gave considerable weight to all pertinent issuances, especially the
ECC issued by DENR-EMB RVI.108 Respondent PRA stresses that its earlier approval of the 40-
hectare reclamation project under its Resolution No. 4094, series of 2010, still requires a second
level of compliance requirements from the proponent. Respondent Province could not possibly begin
its reclamation works since respondent PRA had yet to issue an NTP in its favor.
Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for Phase 1 of
Site 1, it required the submission of the following pre-construction documents:
(a) Land-Form Plan (with technical description);
(b) Site Development Plan/Land Use Plan including,
(i) sewer and drainage systems and
(ii) waste water treatment;
(c) Engineering Studies and Engineering Design;
(d) Reclamation Methodology;

(e) Sources of Fill Materials, and,
(f) The ECC.109
Respondent PRA claims that it was only after the evaluation of the above submissions that it issued
to respondent Province the NTP, limited to the 2.64-hectare reclamation project. Respondent PRA
even emphasized in its evaluation report that should respondent Province pursue the other phases
of its project, it would still require the submission of an ECC for each succeeding phases before the
start of any reclamation works.110
Respondent PRA, being the national government’s arm in regulating and coordinating all
reclamation projects in the Philippines – a mandate conferred by law – manifests that it is incumbent
upon it, in the exercise of its regulatory functions, to diligently evaluate, based on its technical
competencies, all reclamation projects submitted to it for approval. Once the reclamation project’s
requirements set forth by law and related rules have been complied with, respondent PRA is
mandated to approve the same. Respondent PRA claims, "[w]ith all the foregoing rigorous and
detailed requirements submitted and complied with by Aklan, and the attendant careful and
meticulous technical and legal evaluation by respondent PRA, it cannot be argued that the
reclamation permit it issued to Aklan is ‘founded upon numerous irregularities;’ as recklessly and
baselessly imputed by BFI."111
In its Comment112 dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of issuing the
ECC certifies that the project had undergone the proper EIA process by assessing, among others,
the direct and indirect impact of the project on the biophysical and human environment and ensuring
that these impacts are addressed by appropriate environmental protection and enhancement
measures, pursuant to Presidential Decree No. 1586, the Revised Procedural Manual for DENR
DAO 2003-30, and the existing rules and regulations.113
Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which includes
Boracay as tourist zone and marine reserve under Proclamation No. 1801, has no relevance to the
expansion project of Caticlan Jetty Port and Passenger Terminal for the very reason that the project
is not located in the Island of Boracay, being located in Barangay Caticlan, Malay, which is not a part
of mainland Panay. It admits that the site of the subject jetty port falls within the ECA under
Proclamation No. 2146 (1981), being within the category of a water body. This was why respondent
Province had faithfully secured an ECC pursuant to the Revised Procedural Manual for DENR DAO
2003-30 by submitting the necessary documents as contained in the EPRMP on March 19, 2010,
which were the bases in granting ECC No. R6-1003-096-7100 (amended) on April 27, 2010 for the
expansion of Caticlan Jetty Port and Passenger Terminal, covering 2.64 hectares.114
Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and Malay had
been considered by the DENR-Provincial Environment and Natural Resources Office (PENRO),
Aklan in the issuance of the Order115dated January 26, 2010, disregarding the claim of the
Municipality of Malay, Aklan of a portion of the foreshore land in Caticlan covered by the application
of the Province of Aklan; and another Order of Rejection dated February 5, 2010 of the two
foreshore applications, namely FLA No. 060412-43A and FLA No. 060412-43B, of the Province of
Aklan.116
Respondent DENR-EMB RVI contends that the supporting documents attached to the EPRMP for
the issuance of an ECC were merely for the expansion and modernization of the old jetty port in
Barangay Caticlan covering 2.64 hectares, and not the 40-hectare reclamation project in Barangay
Caticlan and Boracay. The previous letter of respondent Province dated October 14, 2009
addressed to DENR-EMB RVI Regional Executive Director, would show that the reclamation project
will cover approximately 2.6 hectares.117 This application for ECC was not officially accepted due to
lack of requirements or documents.
Although petitioner insists that the project involves 40 hectares in two sites, respondent DENR-EMB
RVI looked at the documents submitted by respondent Province and saw that the subject area
covered by the ECC application and subsequently granted with ECC-R6-1003-096-7100 consists
only of 2.64 hectares; hence, respondent DENR-EMB RVI could not comment on the excess area.118
Respondent DENR-EMB RVI admits that as regards the classification of the 2.64-hectare
reclamation project under "Non ECP in ECA," this does not fall within the definition of a co-located
project because the subject project is merely an expansion of the old Caticlan Jetty Port, which had
a previously issued ECC (ECC No. 0699-1012-171 on October 12, 1999). Thus, only an EPRMP,
not a PEIS or PEPRMP, is required.119
Respondent Province submitted to respondent DENR-EMB RVI the following documents contained
in the EPRMP:
a. The Observations on the Floor Bottom and its Marine Resources at the Proposed Jetty
Ports at Caticlan and Manok-manok, Boracay, Aklan, conducted in 1999 by the Bureau of
Fisheries Aquatic Resources (BFAR) Central Office, particularly in Caticlan site, and
b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and Geosciences Bureau
(MGB), Central Office and Engr. Roger Esto, Provincial Planning and Development Office
(PPDO), Aklan in 2009 entitled "Preliminary Geo-hazard Assessment for the Enhancement
of the Existing Caticlan Jetty Port Terminal through Beach Zone Restoration and Protective
Marina Development in Malay, Aklan."
Respondent DENR-EMB RVI claims that the above two scientific studies were enough for it to arrive
at a best professional judgment to issue an amended ECC for the Aklan Marina Project covering
2.64 hectares.120Furthermore, to confirm that the 2.64-hectare reclamation has no significant negative
impact with the surrounding environment particularly in Boracay, a more recent study was
conducted, and respondent DENR-EMB RVI alleges that "[i]t is very important to highlight that the
input data in the [MERF- UPMSI] study utilized the [40-hectare] reclamation and [200-meter] width
seaward using the tidal and wave modelling."121 The study showed that the reclamation of 2.64
hectares had no effect to the hydrodynamics of the strait between Barangay Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no permits and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08,
entitled "Simplifying the Requirements of ECC or CNC Applications;" that the EPRMP was evaluated
and processed based on the Revised Procedural Manual for DENR DAO 2003-30 which resulted to
the issuance of ECC-R6-1003-096-7100; and that the ECC is not a permit per se but a planning tool
for LGUs to consider in its decision whether or not to issue a local permit.122
Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed and deprived
the DENR Secretary of the opportunity to review and/or reverse the decision of his subordinate
office, EMB RVI pursuant to the Revised Procedural Manual for DENR DAO 2003-30. There is no
"extreme urgency that necessitates the granting of Mandamus or issuance of TEPO that put to
balance between the life and death of the petitioner or present grave or irreparable damage to
environment."123
After receiving the above Comments from all the respondents, the Court set the case for oral
arguments on September 13, 2011.
Meanwhile, on September 8, 2011, respondent Province filed a Manifestation and Motion124 praying
for the dismissal of the petition, as the province was no longer pursuing the implementation of the
succeeding phases of the project due to its inability to comply with Article IV B.2(3) of the MOA;
hence, the issues and fears expressed by petitioner had become moot. Respondent Province
alleges that the petition is "premised on a serious misappreciation of the real extent of the contested
reclamation project" as certainly the ECC covered only a total of 2,691 square meters located in
Barangay Caticlan, Malay, Aklan; and although the MOA spoke of 40 hectares, respondent
Province’s submission of documents to respondent PRA pertaining to said area was but the first of a
two-step process of approval. Respondent Province claims that its failure to comply with the
documentary requirements of respondent PRA within the period provided, or 120 working days from
the effectivity of the MOA, indicated its waiver to pursue the remainder of the project.125 Respondent
Province further manifested:
Confirming this in a letter dated 12 August 2011,126 Governor Marquez informed respondent PRA that
the Province of Aklan is no longer "pursuing the implementation of the succeeding phases of the
project with a total area of 37.4 hectares for our inability to comply with Article IV B.2 (3) of the MOA;
hence, the existing MOA will cover only the project area of 2.64 hectares."
In his reply-letter dated August 22, 2011,127 [respondent] PRA General Manager informed Governor
Marquez that the [respondent] PRA Board of Directors has given [respondent] PRA the authority to
confirm the position of the Province of Aklan that the "Aklan Beach Zone Restoration and Protection
Marine Development Project will now be confined to the reclamation and development of the 2.64
hectares, more or less.
It is undisputed from the start that the coverage of the Project is in fact limited to 2.64 hectares, as
evidenced by the NTP issued by respondent PRA. The recent exchange of correspondence between
respondents Province of Aklan and [respondent] PRA further confirms the intent of the parties all
along. Hence, the Project subject of the petition, without doubt, covers only 2.64 and not 40 hectares
as feared. This completely changes the extent of the Project and, consequently, moots the issues
and fears expressed by the petitioner.128 (Emphasis supplied.)
Based on the above contentions, respondent Province prays that the petition be dismissed as no
further justiciable controversy exists since the feared adverse effect to Boracay Island’s ecology had
become academic all together.129
The Court heard the parties’ oral arguments on September 13, 2011 and gave the latter twenty (20)
days thereafter to file their respective memoranda.
Respondent Province filed another Manifestation and Motion,130 which the Court received on April 2,
2012 stating that:
1. it had submitted the required documents and studies to respondent DENR-EMB RVI
before an ECC was issued in its favor;
2. it had substantially complied with the requirements provided under PRA Administrative
Order 2007-2, which compliance caused respondent PRA’s Board to approve the
reclamation project; and
3. it had conducted a series of "consultative [presentations]" relative to the reclamation

project before the LGU of Malay Municipality, the Barangay Officials of Caticlan, and
stakeholders of Boracay Island.
Respondent Province further manifested that the Barangay Council of Caticlan, Malay, Aklan
enacted on February 13, 2012 Resolution No. 003, series of 2012, entitled "Resolution Favorably
Endorsing the 2.6 Hectares Reclamation/MARINA Project of the Aklan Provincial Government at
Caticlan Coastline"131 and that the Sangguniang Bayan of the Municipality of Malay, Aklan enacted
Resolution No. 020, series of 2012, entitled "Resolution Endorsing the 2.6 Hectares Reclamation
Project of the Provincial Government of Aklan Located at Barangay Caticlan, Malay, Aklan."132
Respondent Province claims that its compliance with the requirements of respondents DENR-EMB
RVI and PRA that led to the approval of the reclamation project by the said government agencies, as
well as the recent enactments of the Barangay Council of Caticlan and the Sangguniang Bayan of
the Municipality of Malay favorably endorsing the said project, had "categorically addressed all the
issues raised by the Petitioner in its Petition dated June 1, 2011." Respondent Province prays as
follows:
WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that after
due proceedings, the following be rendered:
1. The Temporary Environmental Protection Order (TEPO) it issued on June 7, 2011 be

lifted/dissolved.
2. The instant petition be dismissed for being moot and academic.
3. Respondent Province of Aklan prays for such other reliefs that are just and equitable
under the premises. (Emphases in the original.)
ISSUES
The Court will now resolve the following issues:
I. Whether or not the petition should be dismissed for having been rendered moot and
academic
II. Whether or not the petition is premature because petitioner failed to exhaust
administrative remedies before filing this case
III. Whether or not respondent Province failed to perform a full EIA as required by laws and
regulations based on the scope and classification of the project
IV. Whether or not respondent Province complied with all the requirements under the
pertinent laws and regulations
V. Whether or not there was proper, timely, and sufficient public consultation for the project
DISCUSSION
On the issue of whether or not the Petition should be dismissed for having been rendered moot and
academic
Respondent Province claims in its Manifestation and Motion filed on April 2, 2012 that with the
alleged favorable endorsement of the reclamation project by the Sangguniang Barangay of Caticlan
and the Sangguniang Bayan of the Municipality of Malay, all the issues raised by petitioner had
already been addressed, and this petition should be dismissed for being moot and academic.
On the contrary, a close reading of the two LGUs’ respective resolutions would reveal that they are
not sufficient to render the petition moot and academic, as there are explicit conditions imposed that
must be complied with by respondent Province. In Resolution No. 003, series of 2012, of the
Sangguniang Barangay of Caticlan it is stated that "any vertical structures to be constructed shall be
subject for barangay endorsement."133 Clearly, what the barangay endorsed was the reclamation only,
and not the entire project that includes the construction of a commercial building and wellness
center, and other tourism-related facilities. Petitioner’s objections, as may be recalled, pertain not
only to the reclamation per se, but also to the building to be constructed and the entire project’s
perceived ill effects to the surrounding environment.
Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay134 is even more specific. It
reads in part:
WHEREAS, noble it seems the reclamation project to the effect that it will generate scores of
benefits for the Local Government of Malay in terms of income and employment for its constituents,
but the fact cannot be denied that the project will take its toll on the environment especially on the
nearby fragile island of Boracay and the fact also remains that the project will eventually displace the
local transportation operators/cooperatives;
WHEREAS, considering the sensitivity of the project, this Honorable Body through the Committee
where this matter was referred conducted several consultations/committee hearings with concerned
departments and the private sector specifically Boracay Foundation, Inc. and they are one in its
belief that this Local Government Unit has never been against development so long as compliance
with the law and proper procedures have been observed and that paramount consideration have
been given to the environment lest we disturb the balance of nature to the end that progress will be
brought to naught;
WHEREAS, time and again, to ensure a healthy intergovernmental relations, this August Body
requires no less than transparency and faithful commitment from the Provincial Government of Aklan
in the process of going through these improvements in the Municipality because it once fell prey to
infidelities in matters of governance;
WHEREAS, as a condition for the grant of this endorsement and to address all issues and concerns,
this Honorable Council necessitates a sincere commitment from the Provincial Government of Aklan
to the end that:
1. To allocate an office space to LGU-Malay within the building in the reclaimed area;
2. To convene the Cagban and Caticlan Jetty Port Management Board before the
resumption of the reclamation project;
3. That the reclamation project shall be limited only to 2.6 hectares in Barangay Caticlan and
not beyond;
4. That the local transportation operators/cooperatives will not be displaced; and
5. The Provincial Government of Aklan conduct a simultaneous comprehensive study on the

environmental impact of the reclamation project especially during Habagat and Amihan
seasons and put in place as early as possible mitigating measures on the effect of the
project to the environment.
WHEREAS, having presented these stipulations, failure to comply herewith will leave this August
Body no choice but to revoke this endorsement, hence faithful compliance of the commitment of the
Provincial Government is highly appealed for[.]135 (Emphases added.)
The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent Province to
comply with on pain of revocation of its endorsement of the project, including the need to conduct a
comprehensive study on the environmental impact of the reclamation project, which is the heart of
the petition before us. Therefore, the contents of the two resolutions submitted by respondent
Province do not support its conclusion that the subsequent favorable endorsement of the LGUs had
already addressed all the issues raised and rendered the instant petition moot and academic.
On the issue of failure to exhaust administrative remedies
Respondents, in essence, argue that the present petition should be dismissed for petitioner’s failure
to exhaust administrative remedies and even to observe the hierarchy of courts. Furthermore, as the
petition questions the issuance of the ECC and the NTP, this involves factual and technical
verification, which are more properly within the expertise of the concerned government agencies.
Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which provides:
Section 6. Appeal
Any party aggrieved by the final decision on the ECC / CNC applications may, within 15 days from
receipt of such decision, file an appeal on the following grounds:
a. Grave abuse of discretion on the part of the deciding authority, or
b. Serious errors in the review findings.
The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle
grievances between proponents and aggrieved parties to avert unnecessary legal action. Frivolous
appeals shall not be countenanced.
The proponent or any stakeholder may file an appeal to the following:
Deciding Authority Where to file the appeal

EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President
(Emphases supplied.)
Respondents argue that since there is an administrative appeal provided for, then petitioner is duty
bound to observe the same and may not be granted recourse to the regular courts for its failure to do
so.
We do not agree with respondents’ appreciation of the applicability of the rule on exhaustion of
administrative remedies in this case. We are reminded of our ruling in Pagara v. Court of
Appeals,136 which summarized our earlier decisions on the procedural requirement of exhaustion of
administrative remedies, to wit:
The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not
applicable (1) where the question in dispute is purely a legal one, or (2) where the controverted act is
patently illegal or was performed without jurisdiction or in excess of jurisdiction; or (3) where the
respondent is a department secretary, whose acts as an alter ego of the President bear the implied
or assumed approval of the latter, unless actually disapproved by him, or (4) where there are
circumstances indicating the urgency of judicial intervention, - Gonzales vs. Hechanova, L-21897,
October 22, 1963, 9 SCRA 230; Abaya vs. Villegas, L-25641, December 17, 1966, 18 SCRA; Mitra
vs. Subido, L-21691, September 15, 1967, 21 SCRA 127.
Said principle may also be disregarded when it does not provide a plain, speedy and adequate
remedy, (Cipriano vs. Marcelino, 43 SCRA 291), when there is no due process observed (Villanos
vs. Subido, 45 SCRA 299), or where the protestant has no other recourse (Sta. Maria vs. Lopez, 31
SCRA 637).137 (Emphases supplied.)
As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR DAO 2003-30 is
only applicable, based on the first sentence thereof, if the person or entity charged with the duty to
exhaust the administrative remedy of appeal to the appropriate government agency has been a party
or has been made a party in the proceedings wherein the decision to be appealed was rendered. It
has been established by the facts that petitioner was never made a party to the proceedings before
respondent DENR-EMB RVI. Petitioner was only informed that the project had already been
approved after the ECC was already granted.138 Not being a party to the said proceedings, it does not
appear that petitioner was officially furnished a copy of the decision, from which the 15-day period to
appeal should be reckoned, and which would warrant the application of Section 6, Article II of DENR
DAO 2003-30.
Although petitioner was not a party to the proceedings where the decision to issue an ECC was
rendered, it stands to be aggrieved by the decision,139 because it claims that the reclamation of land
on the Caticlan side would unavoidably adversely affect the Boracay side, where petitioner’s
members own establishments engaged in the tourism trade. As noted earlier, petitioner contends
that the declared objective of the reclamation project is to exploit Boracay’s tourism trade because
the project is intended to enhance support services thereto; however, this objective would not be
achieved since the white-sand beaches for which Boracay is famous might be negatively affected by
the project. Petitioner’s conclusion is that respondent Province, aided and abetted by respondents
PRA and DENR-EMB RVI, ignored the spirit and letter of our environmental laws, and should thus
be compelled to perform their duties under said laws.
The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a relief for
petitioner under the writ of continuing mandamus, which is a special civil action that may be availed
of "to compel the performance of an act specifically enjoined by law"140 and which provides for the
issuance of a TEPO "as an auxiliary remedy prior to the issuance of the writ itself."141 The Rationale of
the said Rules explains the writ in this wise:
Environmental law highlights the shift in the focal-point from the initiation of regulation by Congress
to the implementation of regulatory programs by the appropriate government agencies.
Thus, a government agency’s inaction, if any, has serious implications on the future of environmental
law enforcement. Private individuals, to the extent that they seek to change the scope of the
regulatory process, will have to rely on such agencies to take the initial incentives, which may
require a judicial component. Accordingly, questions regarding the propriety of an agency’s action or
inaction will need to be analyzed.
This point is emphasized in the availability of the remedy of the writ of mandamus, which allows for
the enforcement of the conduct of the tasks to which the writ pertains: the performance of a legal
duty.142 (Emphases added.)
The writ of continuing mandamus "permits the court to retain jurisdiction after judgment in order to
ensure the successful implementation of the reliefs mandated under the court’s decision" and, in
order to do this, "the court may compel the submission of compliance reports from the respondent
government agencies as well as avail of other means to monitor compliance with its decision."143
According to petitioner, respondent Province acted pursuant to a MOA with respondent PRA that
was conditioned upon, among others, a properly-secured ECC from respondent DENR-EMB RVI.
For this reason, petitioner seeks to compel respondent Province to comply with certain
environmental laws, rules, and procedures that it claims were either circumvented or ignored.
Hence, we find that the petition was appropriately filed with this Court under Rule 8, Section 1, A.M.
No. 09-6-8-SC, which reads:
SECTION 1. Petition for continuing mandamus.—When any agency or instrumentality of the

government or officer thereof unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or station in connection with the
enforcement or violation of an environmental law rule or regulation or a right therein, or unlawfully
excludes another from the use or enjoyment of such right and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty, attaching thereto supporting evidence,
specifying that the petition concerns an environmental law, rule or regulation, and praying that
judgment be rendered commanding the respondent to do an act or series of acts until the judgment
is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect
to perform the duties of the respondent, under the law, rules or regulations. The petition shall also
contain a sworn certification of non-forum shopping.
SECTION 2. Where to file the petition.—The petition shall be filed with the Regional Trial Court
exercising jurisdiction over the territory where the actionable neglect or omission occurred or with the
Court of Appeals or the Supreme Court.
Petitioner had three options where to file this case under the rule: the Regional Trial Court exercising
jurisdiction over the territory where the actionable neglect or omission occurred, the Court of
Appeals, or this Court.
Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law to determine
the questions of unique national and local importance raised here that pertain to laws and rules for
environmental protection, thus it was justified in coming to this Court.
Having resolved the procedural issue, we now move to the substantive issues.
On the issues of whether, based on the scope and classification of the project, a full EIA is required
by laws and regulations, and whether respondent Province complied with all the requirements under
the pertinent laws and regulations
Petitioner’s arguments on this issue hinges upon its claim that the reclamation project is
misclassified as a single project when in fact it is co-located. Petitioner also questions the
classification made by respondent Province that the reclamation project is merely an expansion of
the existing jetty port, when the project descriptions embodied in the different documents filed by
respondent Province describe commercial establishments to be built, among others, to raise
revenues for the LGU; thus, it should have been classified as a new project. Petitioner likewise cries
foul to the manner by which respondent Province allegedly circumvented the documentary
requirements of the DENR-EMB RVI by the act of connecting the reclamation project with its
previous project in 1999 and claiming that the new project is a mere expansion of the previous one.
As previously discussed, respondent Province filed a Manifestation and Motion stating that the ECC
issued by respondent DENR-EMB RVI covered an area of 2,691 square meters in Caticlan, and its
application for reclamation of 40 hectares with respondent PRA was conditioned on its submission of
specific documents within 120 days. Respondent Province claims that its failure to comply with said
condition indicated its waiver to pursue the succeeding phases of the reclamation project and that
the subject matter of this case had thus been limited to 2.64 hectares. Respondent PRA, for its part,
declared through its General Manager that the "Aklan Beach Zone Restoration and Protection
Marine Development Project will now be confined to the reclamation and development of the 2.64
hectares, more or less."144
The Court notes such manifestation of respondent Province. Assuming, however, that the area
involved in the subject reclamation project has been limited to 2.64 hectares, this case has not
become moot and academic, as alleged by respondents, because the Court still has to check
whether respondents had complied with all applicable environmental laws, rules, and regulations
pertaining to the actual reclamation project.
We recognize at this point that the DENR is the government agency vested with delegated powers to
review and evaluate all EIA reports, and to grant or deny ECCs to project proponents.145 It is the
DENR that has the duty to implement the EIS system. It appears, however, that respondent DENR-
EMB RVI’s evaluation of this reclamation project was problematic, based on the valid questions
raised by petitioner.
Being the administrator of the EIS System, respondent DENR-EMB RVI’s submissions bear great
weight in this case. However, the following are the issues that put in question the wisdom of
respondent DENR-EMB RVI in issuing the ECC:
1. Its approval of respondent Province’s classification of the project as a mere expansion of

the existing jetty port in Caticlan, instead of classifying it as a new project;
2. Its classification of the reclamation project as a single instead of a co-located project;
3. The lack of prior public consultations and approval of local government agencies; and
4. The lack of comprehensive studies regarding the impact of the reclamation project to the
environment.
The above issues as raised put in question the sufficiency of the evaluation of the project by
respondent DENR-EMB RVI.
Nature of the project

The first question must be answered by respondent DENR-EMB RVI as the agency with the
expertise and authority to state whether this is a new project, subject to the more rigorous
environmental impact study requested by petitioner, or it is a mere expansion of the existing jetty
port facility.
The second issue refers to the classification of the project by respondent Province, approved by
respondent DENR-EMB RVI, as single instead of co-located. Under the Revised Procedural Manual,
the "Summary List of Additional Non-Environmentally-Critical Project (NECP) Types in ECAs
Classified under Group II" (Table I-2) lists "buildings, storage facilities and other structures" as a
separate item from "transport terminal facilities." This creates the question of whether this project
should be considered as consisting of more than one type of activity, and should more properly be
classified as "co-located," under the following definition from the same Manual, which reads:
f) Group IV (Co-located Projects in either ECA or NECA): A co-located project is a group of single
projects, under one or more proponents/locators, which are located in a contiguous area and
managed by one administrator, who is also the ECC applicant. The co-located project may be an
economic zone or industrial park, or a mix of projects within a catchment, watershed or river basin,
or any other geographical, political or economic unit of area. Since the location or threshold of
specific projects within the contiguous area will yet be derived from the EIA process based on the
carrying capacity of the project environment, the nature of the project is called "programmatic."
(Emphasis added.)
Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the project to
address the question of whether this could be deemed as a group of single projects (transport
terminal facility, building, etc.) in a contiguous area managed by respondent Province, or as a single
project.
The third item in the above enumeration will be discussed as a separate issue.
The answer to the fourth question depends on the final classification of the project under items 1 and
3 above because the type of EIA study required under the Revised Procedural Manual depends on
such classification.
The very definition of an EIA points to what was most likely neglected by respondent Province as
project proponent, and what was in turn overlooked by respondent DENR-EMB RVI, for it is defined
as follows:
An [EIA] is a ‘process that involves predicting and evaluating the likely impacts of a project (including
cumulative impacts) on the environment during construction, commissioning, operation and
abandonment. It also includes designing appropriate preventive, mitigating and enhancement
measures addressing these consequences to protect the environment and the community’s
welfare.146 (Emphases supplied.)
Thus, the EIA process must have been able to predict the likely impact of the reclamation project to
the environment and to prevent any harm that may otherwise be caused.
The project now before us involves reclamation of land that is more than five times the size of the
original reclaimed land. Furthermore, the area prior to construction merely contained a jetty port,
whereas the proposed expansion, as described in the EPRMP submitted by respondent Province to
respondent DENR-EMB RVI involves so much more, and we quote:
The expansion project will be constructed at the north side of the existing jetty port and terminal that
will have a total area of 2.64 hectares, more or less, after reclamation. The Phase 1 of the project
construction costing around ₱260 million includes the following:
1. Reclamation - 3,000 sq m (expansion of jetty port)
2. Reclamation - 13,500 sq m (buildable area)
3. Terminal annex building - 250 sq m
4. 2-storey commercial building – 2,500 sq m (1,750 sq m of leasable space)
5. Health and wellness center
6. Access road - 12 m (wide)
7. Parking, perimeter fences, lighting and water treatment sewerage system
8. Rehabilitation of existing jetty port and terminal
xxxx
The succeeding phases of the project will consist of [further] reclamation, completion of the
commercial center building, bay walk commercial strip, staff building, ferry terminal, a cable car
system and wharf marina. This will entail an additional estimated cost of ₱785 million bringing the
total investment requirement to about ₱1.0 billion.147(Emphases added.)
As may be gleaned from the breakdown of the 2.64 hectares as described by respondent Province
above, a significant portion of the reclaimed area would be devoted to the construction of a
commercial building, and the area to be utilized for the expansion of the jetty port consists of a mere
3,000 square meters (sq. m). To be true to its definition, the EIA report submitted by respondent
Province should at the very least predict the impact that the construction of the new buildings on the
reclaimed land would have on the surrounding environment. These new constructions and their
environmental effects were not covered by the old studies that respondent Province previously
submitted for the construction of the original jetty port in 1999, and which it re-submitted in its
application for ECC in this alleged expansion, instead of conducting updated and more
comprehensive studies.
Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are separated
only by a narrow strait. This becomes more imperative because of the significant contributions of
Boracay’s white-sand beach to the country’s tourism trade, which requires respondent Province to
proceed with utmost caution in implementing projects within its vicinity.
We had occasion to emphasize the duty of local government units to ensure the quality of the
environment under Presidential Decree No. 1586 in Republic of the Philippines v. The City of
Davao,148 wherein we held:
Section 15 of Republic Act 7160, otherwise known as the Local Government Code, defines a local
government unit as a body politic and corporate endowed with powers to be exercised by it in
conformity with law. As such, it performs dual functions, governmental and proprietary.
Governmental functions are those that concern the health, safety and the advancement of the public
good or welfare as affecting the public generally. Proprietary functions are those that seek to obtain
special corporate benefits or earn pecuniary profit and intended for private advantage and benefit.
When exercising governmental powers and performing governmental duties, an LGU is an agency of
the national government. When engaged in corporate activities, it acts as an agent of the community
in the administration of local affairs.
Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the people’s
right to a balanced ecology. Pursuant to this, an LGU, like the City of Davao, can not claim
exemption from the coverage of PD 1586. As a body politic endowed with governmental functions,
an LGU has the duty to ensure the quality of the environment, which is the very same objective of
PD 1586.
xxxx
Section 4 of PD 1586 clearly states that "no person, partnership or corporation shall undertake or
operate any such declared environmentally critical project or area without first securing an
Environmental Compliance Certificate issued by the President or his duly authorized representative."
The Civil Code defines a person as either natural or juridical. The state and its political subdivisions,
i.e., the local government units are juridical persons. Undoubtedly therefore, local government units
are not excluded from the coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the state to
achieve a balance between socio-economic development and environmental protection, which are
the twin goals of sustainable development. The above-quoted first paragraph of the Whereas clause
stresses that this can only be possible if we adopt a comprehensive and integrated environmental
protection program where all the sectors of the community are involved, i.e., the government and the
private sectors. The local government units, as part of the machinery of the government, cannot
therefore be deemed as outside the scope of the EIS system.149 (Emphases supplied.)
The Court chooses to remand these matters to respondent DENR-EMB RVI for it to make a proper
study, and if it should find necessary, to require respondent Province to address these
environmental issues raised by petitioner and submit the correct EIA report as required by the
project’s specifications. The Court requires respondent DENR-EMB RVI to complete its study and
submit a report within a non-extendible period of three months. Respondent DENR-EMB RVI should
establish to the Court in said report why the ECC it issued for the subject project should not be
canceled.
Lack of prior public consultation
The Local Government Code establishes the duties of national government agencies in the
maintenance of ecological balance, and requires them to secure prior public consultation and
approval of local government units for the projects described therein.
In the case before us, the national agency involved is respondent PRA. Even if the project proponent
is the local government of Aklan, it is respondent PRA which authorized the reclamation, being the
exclusive agency of the government to undertake reclamation nationwide. Hence, it was necessary
for respondent Province to go through respondent PRA and to execute a MOA, wherein respondent
PRA’s authority to reclaim was delegated to respondent Province. Respondent DENR-EMB RVI,
regional office of the DENR, is also a national government institution which is tasked with the
issuance of the ECC that is a prerequisite to projects covered by environmental laws such as the
one at bar.
This project can be classified as a national project that affects the environmental and ecological
balance of local communities, and is covered by the requirements found in the Local Government
Code provisions that are quoted below:
Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It
shall be the duty of every national agency or government-owned or controlled corporation
authorizing or involved in the planning and implementation of any project or program that may cause
pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or
forest cover, and extinction of animal or plant species, to consult with the local government units,
nongovernmental organizations, and other sectors concerned and explain the goals and objectives
of the project or program, its impact upon the people and the community in terms of environmental
or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse
effects thereof.
Section 27. Prior Consultations Required. - No project or program shall be implemented by

government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are
complied with, and prior approval of the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be implemented shall not be evicted unless
appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution.
In Lina, Jr. v. Paño,150 we held that Section 27 of the Local Government Code applies only to "national
programs and/or projects which are to be implemented in a particular local community"151 and that it
should be read in conjunction with Section 26. We held further in this manner:
Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects
and programs whose effects are among those enumerated in Section 26 and 27, to wit, those that:
(1) may cause pollution; (2) may bring about climatic change; (3) may cause the depletion of non-
renewable resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may
eradicate certain animal or plant species from the face of the planet; and (6) other projects or
programs that may call for the eviction of a particular group of people residing in the locality where
these will be implemented. Obviously, none of these effects will be produced by the introduction of
lotto in the province of Laguna.152 (Emphasis added.)
During the oral arguments held on September 13, 2011, it was established that this project as
described above falls under Section 26 because the commercial establishments to be built on phase
1, as described in the EPRMP quoted above, could cause pollution as it could generate garbage,
sewage, and possible toxic fuel discharge.153
Our ruling in Province of Rizal v. Executive Secretary154 is instructive:
We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas, where we held
that there was no statutory requirement for the sangguniang bayan of Puerto Galera to approve the
construction of a mooring facility, as Sections 26 and 27 are inapplicable to projects which are not
environmentally critical.
Moreover, Section 447, which enumerates the powers, duties and functions of the municipality,
grants the sangguniang bayan the power to, among other things, "enact ordinances, approve
resolutions and appropriate funds for the general welfare of the municipality and its inhabitants
pursuant to Section 16 of th(e) Code." These include:
(1) Approving ordinances and passing resolutions to protect the environment and impose
appropriate penalties for acts which endanger the environment, such as dynamite fishing and
other forms of destructive fishing, illegal logging and smuggling of logs, smuggling of natural
resources products and of endangered species of flora and fauna, slash and burn farming,
and such other activities which result in pollution, acceleration of eutrophication of rivers and
lakes, or of ecological imbalance; [Section 447 (1)(vi)]
(2) Prescribing reasonable limits and restraints on the use of property within the jurisdiction
of the municipality, adopting a comprehensive land use plan for the municipality,
reclassifying land within the jurisdiction of the city, subject to the pertinent provisions of this
Code, enacting integrated zoning ordinances in consonance with the approved
comprehensive land use plan, subject to existing laws, rules and regulations; establishing fire
limits or zones, particularly in populous centers; and regulating the construction, repair or
modification of buildings within said fire limits or zones in accordance with the provisions of
this Code; [Section 447 (2)(vi-ix)]
(3) Approving ordinances which shall ensure the efficient and effective delivery of the basic
services and facilities as provided for under Section 17 of this Code, and in addition to said
services and facilities, …providing for the establishment, maintenance, protection, and
conservation of communal forests and watersheds, tree parks, greenbelts, mangroves, and
other similar forest development projects …and, subject to existing laws, establishing and
providing for the maintenance, repair and operation of an efficient waterworks system to
supply water for the inhabitants and purifying the source of the water supply; regulating the
construction, maintenance, repair and use of hydrants, pumps, cisterns and reservoirs;
protecting the purity and quantity of the water supply of the municipality and, for this purpose,
extending the coverage of appropriate ordinances over all territory within the drainage area
of said water supply and within one hundred (100) meters of the reservoir, conduit, canal,
aqueduct, pumping station, or watershed used in connection with the water service; and
regulating the consumption, use or wastage of water." [Section 447 (5)(i) & (vii)]
Under the Local Government Code, therefore, two requisites must be met before a national project
that affects the environmental and ecological balance of local communities can be implemented:
prior consultation with the affected local communities, and prior approval of the project by the
appropriate sanggunian. Absent either of these mandatory requirements, the project’s
implementation is illegal.155 (Emphasis added.)
Based on the above, therefore, prior consultations and prior approval are required by law to have
been conducted and secured by the respondent Province. Accordingly, the information
dissemination conducted months after the ECC had already been issued was insufficient to comply
with this requirement under the Local Government Code. Had they been conducted properly, the
prior public consultation should have considered the ecological or environmental concerns of the
stakeholders and studied measures alternative to the project, to avoid or minimize adverse
environmental impact or damage. In fact, respondent Province once tried to obtain the favorable
endorsement of the Sangguniang Bayan of Malay, but this was denied by the latter.
Moreover, DENR DAO 2003-30 provides:
5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of public hearing as part of the EIS review is
mandatory unless otherwise determined by EMB. For all other undertakings, a public hearing is not
mandatory unless specifically required by EMB.
Proponents should initiate public consultations early in order to ensure that environmentally relevant
concerns of stakeholders are taken into consideration in the EIA study and the formulation of the
management plan. All public consultations and public hearings conducted during the EIA process
are to be documented. The public hearing/consultation Process report shall be validated by the
EMB/EMB RD and shall constitute part of the records of the EIA process. (Emphasis supplied.)
In essence, the above-quoted rule shows that in cases requiring public consultations, the same
should be initiated early so that concerns of stakeholders could be taken into consideration in the
EIA study. In this case, respondent Province had already filed its ECC application before it met with
the local government units of Malay and Caticlan.
The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National
Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular
No. 2007-08. However, we still find that the LGC requirements of consultation and approval apply in
this case. This is because a Memorandum Circular cannot prevail over the Local Government Code,
which is a statute and which enjoys greater weight under our hierarchy of laws.
Subsequent to the information campaign of respondent Province, the Municipality of Malay and the
Liga ng mga Barangay-Malay Chapter still opposed the project. Thus, when respondent Province
commenced the implementation project, it violated Section 27 of the LGC, which clearly enunciates
that "[no] project or program shall be implemented by government authorities unless the
consultations mentioned in Sections 2(c) and 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained."
The lack of prior public consultation and approval is not corrected by the subsequent endorsement of
the reclamation project by the Sangguniang Barangay of Caticlan on February 13, 2012, and the
Sangguniang Bayan of the Municipality of Malay on February 28, 2012, which were both
undoubtedly achieved at the urging and insistence of respondent Province. As we have established
above, the respective resolutions issued by the LGUs concerned did not render this petition moot
and academic.
It is clear that both petitioner and respondent Province are interested in the promotion of tourism in
Boracay and the protection of the environment, lest they kill the proverbial hen that lays the golden
egg. At the beginning of this decision, we mentioned that there are common goals of national
significance that are very apparent from both the petitioner’s and the respondents’ respective
pleadings and memoranda.
The parties are evidently in accord in seeking to uphold the mandate found in Article II, Declaration
of Principles and State Policies, of the 1987 Constitution, which we quote below:
SECTION 16. The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.
xxxx
SECTION 20. The State recognizes the indispensable role of the private sector, encourages private
enterprise, and provides incentives to needed investments.
The protection of the environment in accordance with the aforesaid constitutional mandate is the
aim, among others, of Presidential Decree No. 1586, "Establishing an Environmental Impact
Statement System, Including Other Environmental Management Related Measures and For Other
Purposes," which declared in its first Section that it is "the policy of the State to attain and maintain a
rational and orderly balance between socio-economic growth and environmental protection."
The parties undoubtedly too agree as to the importance of promoting tourism, pursuant to Section 2
of Republic Act No. 9593, or "The Tourism Act of 2009," which reads:
SECTION 2. Declaration of Policy. – The State declares tourism as an indispensable element of the
national economy and an industry of national interest and importance, which must be harnessed as
an engine of socioeconomic growth and cultural affirmation to generate investment, foreign
exchange and employment, and to continue to mold an enhanced sense of national pride for all
Filipinos. (Emphasis ours.)
The primordial role of local government units under the Constitution and the Local Government Code
of 1991 in the subject matter of this case is also unquestionable. The Local Government Code of
1991 (Republic Act No. 7160) pertinently provides:
Section 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the territorial
and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable
them to attain their fullest development as self-reliant communities and make them more effective
partners in the attainment of national goals. Toward this end, the State shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization whereby local government units shall be given more powers, authority,
responsibilities, and resources. The process of decentralization shall proceed from the national
government to the local government units.156 (Emphases ours.)
As shown by the above provisions of our laws and rules, the speedy and smooth resolution of these
issues would benefit all the parties. Thus, respondent Province’s cooperation with respondent
DENR-EMB RVI in the Court-mandated review of the proper classification and environmental impact
of the reclamation project is of utmost importance.
WHEREFORE, premises considered, the petition is hereby PARTIALLY GRANTED. The TEPO 1âwphi 1
issued by this Court is hereby converted into a writ of continuing mandamus specifically as follows:
1. Respondent Department of Environment and Natural Resources-Environmental

Management Bureau Regional Office VI shall revisit and review the following matters:
a. its classification of the reclamation project as a single instead of a co-located

project;
b. its approval of respondent Province’s classification of the project as a mere

expansion of the existing jetty port in Caticlan, instead of classifying it as a new
project; and
c. the impact of the reclamation project to the environment based on new, updated,
and comprehensive studies, which should forthwith be ordered by respondent
DENR-EMB RVI.
2. Respondent Province of Aklan shall perform the following:
a. fully cooperate with respondent DENR-EMB RVI in its review of the reclamation
project proposal and submit to the latter the appropriate report and study; and
b. secure approvals from local government units and hold proper consultations with
non-governmental organizations and other stakeholders and sectors concerned as
required by Section 27 in relation to Section 26 of the Local Government Code.
3. Respondent Philippine Reclamation Authority shall closely monitor the submission by

respondent Province of the requirements to be issued by respondent DENR-EMB RVI in
connection to the environmental concerns raised by petitioner, and shall coordinate with
respondent Province in modifying the MOA, if necessary, based on the findings of
respondent DENR-EMB RVI.
4. The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan,
represented by Governor Carlito S. Marquez, The Philippine Reclamation Authority, and The
DENR-EMB (Region VI) are mandated to submit their respective reports to this Court
regarding their compliance with the requirements set forth in this Decision no later than three
(3) months from the date of promulgation of this Decision.
5. In the meantime, the respondents, their concerned contractor/s, and/or their agents,
representatives or persons acting in their place or stead, shall immediately cease and desist
from continuing the implementation of the project covered by ECC-R6-1003-096-7100 until
further orders from this Court. For this purpose, the respondents shall report within five (5)
days to this Court the status of the project as of their receipt of this Decision, copy furnished
the petitioner.
This Decision is immediately executory.
SO ORDERED.
G.R. No. 180771 April 21, 2015
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAÑON STRAIT, e.g.,

TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, Joined in
and Represented herein by Human Beings Gloria Estenzo Ramos and Rose-Liza Eisma-
Osorio, In Their Capacity as Legal Guardians of the Lesser Life-Forms and as Responsible
Stewards of God's Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of the Department of
Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR Regional
Director-Region VII and in his capacity as Chairperson of the Tañon Strait Protected
Seascape Management Board, Bureau of Fisheries and Aquatic Resources (BFAR),
DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for Region VII ANDRES
M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its
Philippine Agent, SUPPLY OILFIELD SERVICES, INC. Respondents.
x-----------------------x
G.R. No. 181527
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL,

RAMON YANONG, FRANCISCO LABID, in their personal capacity and as representatives of
the SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF ALOGUINSAN AND
PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE PRESENT AND FUTURE
GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY AFFECTED, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment and
Natural Resources (DENR), LEONARDO R. SIBBALUCA, in his capacity as DENR Regional
Director-Region VII and as Chairperson of the Tañon Strait Protected Seascape Management
Board, ALAN ARRANGUEZ, in his capacity as Director - Environmental Management Bureau-
Region VII, DOE Regional Director for Region VIII1 ANTONIO LABIOS, JAPAN PETROLEUM
EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY OILFIELD
SERVICES, INC., Respondents.
CONCURRING OPINION
"Until one has loved an animal,

a part of one 's soul remains unawakened."
Anatole France
LEONEN, J.:
I concur in the result, with the following additional reasons.
In G.R. No. 180771, petitioners Resident Marine Mammals allegedly bring their case in their
personal capacity, alleging that they stand to benefit or be injured from the judgment on the issues.
The human petitioners implead themselves in a representative capacity "as legal guardians of the
lesser life-forms and as responsible stewards of God's Creations."1 They use Oposa v. Factoran,
Jr.2 as basis for their claim, asserting their right to enforce international and domestic environmental
laws enacted for their benefit under the concept of stipulation pour autrui.3As the representatives of
Resident Marine Mammals, the human petitioners assert that they have the obligation to build
awareness among the affected residents of Tañon Strait as well as to protect the environment,
especially in light of the government's failure, as primary steward, to do its duty under the doctrine of
public trust.4
Resident Marine Mammals and the human petitioners also assert that through this case, this court
will have the opportunity to lower the threshold for locus standi as an exercise of "epistolary
jurisdiction."5
The zeal of the human petitioners to pursue their desire to protect the environment and to continue
to define environmental rights in the context of actual cases is commendable. However, the space
for legal creativity usually required for advocacy of issues of the public interest is not so unlimited
that it should be allowed to undermine the other values protected by current substantive and
procedural laws. Even rules of procedure as currently formulated set the balance between
competing interests. We cannot abandon these rules when the necessity is not clearly and
convincingly presented.
The human petitioners, in G.R. No. 180771, want us to create substantive and procedural rights for
animals through their allegation that they can speak for them. Obviously, we are asked to accept the
premises that (a) they were chosen by the Resident Marine Mammals of Tañon Strait; (b) they were
chosen by a representative group of all the species of the Resident Marine Mammals; (c) they were
able to communicate with them; and (d) they received clear consent from their animal principals that
they would wish to use human legal institutions to pursue their interests. Alternatively, they ask us to
acknowledge through judicial notice that the interests that they, the human petitioners, assert are
identical to what the Resident Marine Mammals would assert had they been humans and the legal
strategies that they invoked are the strategies that they agree with.
In the alternative, they want us to accept through judicial notice that there is a relationship of
guardianship between them and all the resident mammals in the affected ecology.
Fundamental judicial doctrines that may significantly change substantive and procedural law cannot
be founded on feigned representation.
Instead, I agree that the human petitioners should only speak for themselves and already have legal
standing to sue with respect to the issue raised in their pleading. The rules on standing have already
been liberalized to take into consideration the difficulties in the assertion of environmental rights.
When standing becomes too liberal, this can be the occasion for abuse.
II
Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, provides:
SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or
entities authorized by law may be parties in a civil action.
The Rules provide that parties may only be natural or juridical persons or entities that may be
authorized by statute to be parties in a civil action.
Basic is the concept of natural and juridical persons in our Civil Code:
ARTICLE 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in
every natural person and is lost only through death. Capacity to act, which is the power to do acts
with legal effect, is acquired and may be lost.
Article 40 further defines natural persons in the following manner:
ARTICLE 40. Birth determines personality; but the conceived child shall be considered born for all
purposes that are favorable to it, provided it be born later with the conditions specified 'in the
following article.
Article 44, on the other hand, enumerates the concept of a juridical person:
ARTICLE 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purpose, created by law;
their personality begins as soon as they have been constituted according to law;
(3) Corporations, partnerships and associations for private interest or purpose to which the
law grants a juridical personality, separate and distinct from that of each shareholder, partner
or member.
Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather than simply construe, the
provisions of the Rules of Court as well as substantive law to accommodate Resident Marine
Mammals or animals. This we cannot do.
Rule 3, Section 2 of the 1997 Rules of Civil Procedure further defines real party in interest:
SEC. 2. Parties in interest.-A real party in interest is the party who stands to be benefited or injured
by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized
by law or these Rules, every action must be prosecuted or defended in the name of the real party in
interest. (2a)6
A litigant who stands to benefit or sustain an injury from the judgment of a case is a real party in
interest.7 When a case is brought to the courts, the real party in interest must show that another
party's act or omission has caused a direct injury, making his or her interest both material and based
on an enforceable legal right.8
Representatives as parties, on the other hand, are parties acting in representation of the real party in
interest, as defined in Rule 3, Section 3 of the 1997 Rules of Civil Procedure:
SEC. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a

representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title
of the case and shall be deemed to be the real party in interest. A representative may be a trustee of
an express rust, a guardian, an executor or administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or
be sued without joining the principal except when the contract involves things belonging to the
principal.(3a)9
The rule is two-pronged. First, it defines .a representative as a party who is not bound to directly or
actually benefit or suffer from the judgment, but instead brings a case in favor of an identified real
party in interest.10 The representative is an outsider to the cause of action. Second, the rule provides
a list of who may be considered as "representatives." It is not an exhaustive list, but the rule limits
the coverage only to those authorized by law or the Rules of Court.11
These requirements should apply even in cases involving the environment, which means that for the
Petition of the human petitioners to prosper, they must show that (a) the Resident Marine Mammals
are real parties in interest; and (b) that the human petitioners are authorized by law or the Rules to
act in a representative capacity.
The Resident Marine Mammals are comprised of "toothed whales, dolphins, porpoises, and other
cetacean species inhabiting Tañon Strait."12 While relatively new in Philippine jurisdiction, the issue
of whether animals have legal standing before courts has been the subject of academic discourse in
light of the emergence of animal and environmental rights.
In the United States, anim4l rights advocates have managed to establish a system which Hogan
explains as the "guardianship model for nonhuman animals":13
Despite Animal Lovers, there exists a well-established system by which nonhuman animals may
obtain judicial review to enforce their statutory rights and protections: guardianships. With court
approval, animal advocacy organizations may bring suit on behalf of nonhuman animals in the same
way court-appointed guardians bring suit on behalf of mentally-challenged humans who possess an
enforceable right but lack the ability to enforce it themselves.
In the controversial but pivotal Should Trees Have Standing?-Toward Legal Rights for Natural
Objects, Christopher D. Stone asserts that the environment should possess the right to seek judicial
redress even though it is incapable of representing itself. While asserting the rights of
speechless entities such as the environment or nonhuman animals certainly poses legitimate
challenges - such as identifying the proper spokesman -the American legal system is already well-
equipped with a reliable mechanism by which nonhumans may obtain standing via a judicially
established guardianship. Stone notes that other speechless - and nonhuman - entities such as
corporations, states, estates, and municipalities have standing to bring suit on their own behalf.
There is little reason to fear abuses under this regime as procedures for removal and substitution,
avoiding conflicts of interest, and termination of a guardianship are well established.
In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that AL VA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more than
a derivative of its history, but history is a relevant consideration where organizations are not well-
established prior to commencing legal action. ALVA was not the proper plaintiff because it could not
identify previous activities demonstrating its recognized activism for and commitment to the dispute
independent of its desire to pursue legal action. The court's analysis suggests that a qualified
organization with a demonstrated commitment to a cause could indeed bring suit on behalf of the
speechless in the form of a court-sanctioned guardianship.
This Comment advocates a shift in contemporary standing doctrine to empower non-profit

organizations with an established history of dedication to the cause and relevant expertise to serve
as official guardians ad !item on behalf of nonhuman animals interests. The American legal system
has numerous mechanisms for representing the rights and interests of nonhumans; any challenges
inherent in extending these pre-existing mechanisms to nonhuman animals are minimal compared to
an interest in the proper administration of justice. To adequately protect the statutory rights of
nonhuman animals, the legal system must recognize those statutory rights independent of humans
and provide a viable means of enforcement. Moreover, the idea of a guardianship for speechless
plaintiffs is not new and has been urged on behalf of the natural environment. 'Such a model is even
more compelling as applied to nonhuman animals, because they are sentient beings with the ability
to feel pain and exercise rational thought. Thus, animals are qualitatively different from other legally
protected nonhumans and therefore have interests deserving direct legal protection.
Furthermore, the difficulty of enforcing the statutory rights of nonhuman animals threatens the
integrity of the federal statutes designed to protect them, essentially rendering them meaningless.
Sensing that laws protecting nonhuman animals would be difficult to enforce, Congress provided for
citizen suit provisions: the most well-known example is found in the Endangered Species Act (ESA).
Such provisions are evidence of legislative intent to encourage civic participation on behalf of
nonhuman animals. Our law of standing should reflect this intent and its implication that humans are
suitable representatives of the natural environment, which includes nonhuman animals.14 (Emphasis
supplied, citation omitted)
When a court allows guardianship as a basis of representation, animals are considered as similarly
situated as individuals who have enforceable rights but, for a legitimate reason (e.g., cognitive
disability), are unable to bring suit for themselves. They are also similar to entities that by their very
nature are incapable of speaking for themselves (e.g., corporations, states, and others).
In our jurisdiction, persons and entities are recognized both in law and the Rules of Court as having
standing to sue and, therefore, may be properly represented as real parties in interest. The same
cannot be said about animals.
Animals play an important role in households, communities, and the environment. While we, as
humans, may feel the need to nurture and protect them, we cannot go as far as saying we represent
their best interests and can, therefore, speak for them before the courts. As humans, we cannot be
so arrogant as to argue that we know the suffering of animals and that we know what remedy they
need in the face of an injury.
Even in Hogan's discussion, she points out that in a case before the United States District Court for
the Central District of California, Animal Lovers Volunteer Ass'n v. Weinberger,15 the court held that
an emotional response to what humans perceive to be an injury inflicted on an animal is not within
the "zone-of-interest" protected by law.16Such sympathy cannot stand independent of or as a
substitute for an actual injury suffered by the claimant.17 The ability to represent animals was further
limited in that case by the need to prove "genuine dedication" to asserting and protecting animal
rights:
What ultimately proved fatal to ALVA 's claim, however, was the court's assertion that standing
doctrine further required ALVA to differentiate its genuine dedication to the humane treatment of
animals from the general disdain for animal cruelty shared by the public at large. In doing so, the
court found ALVA 's asserted organizational injury to be abstract and thus relegated ALVA to the
ranks of the "concerned bystander. "
....
In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that ALVA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more than
a derivative of its history, but history is a relevant consideration where organizations are not well-
established prior to commencing legal action. ALVA was not the proper plaintiff because it could not
identify previous activities demonstrating its recognized activism for and commitment to the dispute
independent of its desire to pursue legal action. The court's analysis suggests that a qualified
organization with a demonstrated commitment to a cause could indeed bring suit on behalf of the
speechless in the form of a court-sanctioned guardianship.18(Emphasis supplied, citation omitted)
What may be argued as being parallel to this concept of guardianship is the principle of human
stewardship over the environment in a citizen suit under the Rules of Procedure for Environmental
Cases. A citizen suit allows any Filipino to act as a representative of a party who has enforceable
rights under environmental laws before Philippine courts, and is defined in Section 5: .
SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or generations
yet unborn, may file an action to enforce rights or obligations under environmental laws. Upon the
filing of a citizen suit, the court shall issue an order which shall contain a brief description of the
cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to
intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order
once in a newspaper of a general circulation in the Philippines or furnish all affected barangays
copies of said order.
There is no valid reason in law or the practical requirements of this case to implead and feign
representation on behalf of animals. To have done so betrays a very anthropocentric view of
environmental advocacy. There is no way that we, humans, can claim to speak for animals let alone
present that they would wish to use our court system, which is designed to ensure that humans
seriously carry their responsibility including ensuring a viable ecology for themselves, which of
course includes compassion for all living things.
Our rules on standing are sufficient and need not be further relaxed.
In Arigo v. Swift,19 I posed the possibility of further reviewing the broad interpretation we have given
to the rule on standing. While representatives are not required to establish direct injury on their part,
they should only be allowed to represent after complying with the following: [I]t is imperative for them
to indicate with certainty the injured parties on whose behalf they bring the suit. Furthermore, the
interest of those they represent must be based upon concrete legal rights. It is not sufficient to draw
out a perceived interest from a general, nebulous idea of a potential "injury."20
I reiterate my position in Arigo v. Swift and in Paje v. Casiño21 regarding this rule alongside the
appreciation of legal standing in Oposa v. Factoran22 for environmental cases. In Arigo, I opined that
procedural liberality, especially in cases brought by representatives, should be used with great
caution:
Perhaps it is time to revisit the ruling in Oposa v. Factoran.
That case was significant in that, at that time, there was need to call attention to environmental
concerns in light of emerging international legal principles. While "intergenerational responsibility" is
a noble principle, it should not be used to obtain judgments that would preclude future generations
from making their own assessment based on their actual concerns. The present generation must
restrain itself from assuming that it can speak best for those who will exist at a different time, under a
different set of circumstances. In essence, the unbridled resort to representative suit will inevitably
result in preventing future generations from protecting their own rights and pursuing their own
interests and decisions. It reduces the autonomy of our children and our children 's children. Even
before they are born, we again restricted their ability to make their own arguments.
It is my opinion that, at best, the use of the Oposa doctrine in environmental cases should be
allowed only when a) there is a clear legal basis for the representative suit; b) there are actual
concerns based squarely upon an existing legal right; c) there is no possibility of any countervailing
interests existing within the population represented or those that are yet to be born; and d) there is
an absolute necessity for such standing because there is a threat of catastrophe so imminent that an
immediate protective measure is necessary. Better still, in the light of its costs and risks, we
abandon the precedent all together.23 (Emphasis in the original)
Similarly, in Paje:
A person cannot invoke the court's jurisdiction if he or she has no right or interest to protect. He or
she who invokes the court's jurisdiction must be the "owner of the right sought to be enforced." In
other words, he or she must have a cause of action. An action may be dismissed on the ground of
lack of cause of action if the person who instituted it is not the real party in interest.24 The term
"interest" under the Rules of Court must refer to a material interest that is not merely a curiosity
about or an "interest in the question involved." The interest must be present and substantial. It is not
a mere expectancy or a future, contingent interest.
A person who is not a real party in interest may institute an action if he or she is suing as
representative of a .real party in interest. When an action is prosecuted or defended by a
representative, that representative is not and does not become the real party in interest. The person
represented is deemed the real party in interest. The representative remains to be a third party to the
action instituted on behalf of another.
....
To sue under this rule, two elements must be present: "(a) the suit is brought on behalf of an
identified party whose right has been violated, resulting in some form of damage, and (b) the
representative authorized by law or the Rules of Court to represent the victim."
The Rules of Procedure for Environmental Cases allows filing of a citizen's suit. A citizen's suit under
this rule allows any Filipino citizen to file an action for the enforcement of environmental law on
behalf of minors or generations yet unborn. It is essentially a representative suit that allows persons
who are not real parties in interest to institute actions on behalf of the real party in interest.
The expansion of what constitutes "real party in interest" to include minors and generations yet
unborn is a recognition of this court's ruling in Oposa v. Factoran. This court recognized the capacity
of minors (represented by their parents) to file a class suit on behalf of succeeding generations
based on the concept of intergenerational responsibility to ensure the future generation's access to
and enjoyment of [the] country's natural resources.
To allow citizen's suits to enforce environmental rights of others, including future generations, is
dangerous for three reasons:
First, they run the risk of foreclosing arguments of others who are unable to take part in the suit,
putting into. question its representativeness. Second, varying interests may potentially result in
arguments that are bordering on political issues, the resolutions of which do not fall upon this court.
Third, automatically allowing a class or citizen's suit on behalf of minors and generations yet unborn
may result in the oversimplification of what may be a complex issue, especially in light of the
impossibility of determining future generation's true interests on the matter.
In citizen's suits, persons who may have no interest in the case may file suits for others.
Uninterested persons will argue for the persons they represent, and the court will decide based on
their evidence and arguments. Any decision by the court will be binding upon the beneficiaries,
which in this case are the minors and the future generations. The court's decision will be res judicata
upon them and conclusive upon the issues presented.25
The danger in invoking Oposa v. Factoran to justify all kinds of environmental claims lies in its
potential to diminish the value of legitimate environmental rights. Extending the application of "real
party in interest" to the Resident Marine Mammals, or animals in general, through a judicial
pronouncement will potentially result in allowing petitions based on mere concern rather than an
actual enforcement of a right. It is impossible for animals to tell humans what their concerns are. At
best, humans can only surmise the extent of injury inflicted, if there be any. Petitions invoking a right
and seeking legal redress before this court cannot be a product of guesswork, and representatives
have the responsibility to ensure that they bring "reasonably cogent, rational, scientific, well-founded
arguments"26 on behalf of those they represent.
Creative approaches to fundamental problems should be welcome. However, they should be

considered carefully so that no unintended or unwarranted consequences should follow. I concur
with the approach of Madame Justice Teresita J. Leonardo-De Castro in her brilliant ponencia as it
carefully narrows down the doctrine in terms of standing. Resident Marine Mammals and the human
petitioners have no legal standing to file any kind of petition.
However, I agree that petitioners in G.R. No. 181527, namely, Central Visayas Fisherfolk
Development Center,. Engarcial, Yanong, and Labid, have standing both as real parties in interest
and as representatives of subsistence fisherfolks of the Municipalities of Aloguinsan and
Pinamungahan, Cebu, and their families, and the present and future generations of Filipinos whose
rights are similarly affected. The activities undertaken under Service Contract 46 (SC-46) directly
affected their source of livelihood, primarily felt through the significant reduction of their fish
harvest.27 The actual, direct, and material damage they suffered, which has potential long-term
effects transcending generations, is a proper subject of a legal suit.
III
In our jurisdiction, there is neither reason nor any legal basis for the concept of implied petitioners,
most especially when the implied petitioner was a sitting President of the Republic of the Philippines.
In G.R. No. 180771, apart from adjudicating unto themselves the status of "legal guardians" of
whales, dolphins, porpoises, and other cetacean species, human petitioners also impleaded Former
President Gloria Macapagal-Arroyo as "unwilling co-petitioner" for "her express declaration and
undertaking in the ASEAN Charter to protect Tañon Strait."28
No person may implead any other person as a co-plaintiff or co-petitioner without his or her consent.
In our jurisdiction, only when there is a party that should have been a necessary party but was
unwilling to join would there be an allegation as to why that party has been omitted. In Rule 3,
Section 9 of the 1997 Rules of Civil Procedure:
SEC. 9. Non-joinder of necessary parties to be pleaded. -Whenever in any pleading in which a claim
is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall
state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order
the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a
waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and
the judgment rendered therein shall be without prejudice to the rights of such necessary party.29
A party who should have been a plaintiff or petitioner but whose consent cannot be obtained should
be impleaded as a defendant in the nature of an unwilling co-plaintiff under Rule 3, Section 10 of the
1997 Rules of Civil Procedure:
SEC. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not
be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.30
The reason for this rule is plain: Indispensable party plaintiffs who should be part of the action but
who do not consent should be put within the jurisdiction of the court through summons or other court
processes. Petitioners. should not take it upon themselves to simply imp lead any party who does
not consent as a petitioner. This places the unwilling co-petitioner at the risk of being denied due
process.
Besides, Former President Gloria Macapagal-Arroyo cannot be a party to this suit. As a co-equal
constitutional department, we cannot assume that the President needs to enforce policy directions
by suing his or her alter-egos. The procedural situation caused by petitioners may have gained
public attention, but its legal absurdity borders on the contemptuous. The Former President's name
should be stricken out of the title of this case.
IV
I also concur with the conclusion that SC-46 is both. illegal and unconstitutional.
SC-46 is illegal because it violates Republic Act No. ·7586 or the National Integrated Protected
Areas System Act of 1992, and Presidential Decree No. 1234,31 which declared Tañon Strait as a
protected seascape. It is unconstitutional because it violates the fourth paragraph of Article XII,
Section 2 of the Constitution.
Petitioner Central Visayas Fisherfolk Development Center asserts that SC-46 violated Article XII,
Section 2, paragraph 1 of the .1987 Constitution because Japan Petroleum Exploration Co., Ltd.
(JAPEX) is 100% Japanese-owned.32 It further asserts that SC-46 cannot be validly classified as a
technical and financial assistance agreement executed under Article XII, Section 2, paragraph 4 of
the 1987 Constitution.33 Public respondents counter that SC-46 does not fall under the coverage of
paragraph 1, but is a validly executed contract under paragraph 4.34· Public respondents further aver
that SC-46 neither granted exclusive fishing rights to JAPEX nor violated Central Visayas Fisherfolk
Development Center's right to preferential use of communal marine and fishing resources.35
VI
Article XII, Section 2 of the 1987 Constitution states:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils,
all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception. of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as may be provided by
law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers,
lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources.
The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution. (Emphasis supplied)
I agree that fully foreign-owned corporations may participate in the exploration, development, and
use of natural resources, but only through either financial agreements or technical ones. This is the
clear import of the words "either financial or technical assistance agreements." This is also
the clear result if we compare the 1987 constitutional provision with the versions in the 1973 and
1935 Constitution:
1973 CONSTITUTION
ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF THE NATION
SEC. 9. The disposition, exploration, development, of exploitation, or utilization of any of the natural
resources of the Philippines shall be limited to citizens of the Philippines, or to corporations or
association at least sixty per centum of the capital of which is owned by such citizens. The Batasang
Pambansa, in the national interest, may allow such citizens, corporations, or associations to enter
into service contracts for financial, technical, management, or other forms of assistance with any
foreign person or entity for the exploitation, development, exploitation, or utilization of any of the
natural resources. Existing valid and binding service contracts for financial, the technical,
management, or other forms of assistance are hereby recognized as such. (Emphasis supplied)
1935 CONSTITUTION
ARTICLE XIII
CONSERVATION AND UTILIZATION OF NATURAL RESOURCES
SECTION 1. All agricultural timber, and mineral. lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of
the capital of which is owned by such citizens, subject to any existing right, grant, lease, or
concession at the time of the inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, development, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five years, renewable for another twenty-
five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other
than the development of water power, in which cases beneficial use may be the measure and the
limit of the grant.
The clear text of the Constitution in light of its history prevails over any attempt to infer interpretation
from the Constitutional Commission deliberations. The constitutional texts are the product of a full
sovereign act: deliberations in a constituent assembly and ratification. Reliance on recorded
discussion of Constitutional Commissions, on the other hand, may result in dependence on
incomplete authorship; Besides, it opens judicial review to further subjectivity from those who spoke
during the Constitutional Commission deliberations who may not have predicted how their words will
be used. It is safer that we use the words already in the Constitution. The Constitution was their
product. Its words were read by those who ratified it. The Constitution is what society relies upon
even at present.
SC-46 is neither a financial assistance nor a technical assistance agreement.
Even supposing for the sake of argument that it is, it could not be declared valid in light of the
standards set forth in La Bugal-B'laan Tribal Association, Inc. v. Ramos:36
Such service contracts may be entered into only with respect to minerals, petroleum and other
mineral oils. The grant thereof is subject to several safeguards, among which are these
requirements:
(1) The service contract shall be crafted m accordance with a general law that will set
standard or uniform terms, conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of terms disadvantageous to the
country.
(2) The President shall be the signatory for the government because, supposedly before an
agreement is presented to the President for signature, it will have been vetted several times
over at different levels to ensure that it conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to Congress to
give that branch of government an opportunity to look over the agreement and interpose
timely objections, if any.37 (Emphasis in the original, citation omitted)
Based on the standards pronounced in La Bugal, SC-46' S validity must be tested against three
important points: (a) whether SC-46 was crafted in accordance with a general law that provides
standards, terms, and conditions; (b) whether SC-46 was signed by the President for and on behalf
of the government; and (c) whether it was reported by the President to Congress within 30 days of
execution.
VII
The general law referred to as a possible basis for SC-46's validity is Presidential Decree No. 87 or
the Oil Exploration and Development Act of 1972. It is my opinion that this law is unconstitutional in
1âwphi1
that it allows service contracts, contrary to Article XII, Section 2 of the 1987 Constitution:
The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources. (Emphasis supplied)
The deletion of service contracts from the enumeration of the kind of agreements the President may
enter into with foreign-owned corporations for exploration and utilization of resources means that
service contracts are no longer allowed by the Constitution. Pursuant to Article XVIII, Section 3 of
the 1987 Constitution,38 this inconsistency renders the law invalid and ineffective.
SC-46 suffers from the lack of a special law allowing its activities. The Main Opinion emphasizes an
important point, which is that SC-46 did not merely involve exploratory activities, but also provided
the rights and obligations of the parties should it be discovered that there is oil in commercial
quantities in the area. The Tañon Strait being a protected seascape under Presidential Decree No.
123439 requires that the exploitation and utilization of energy resources from that area are explicitly
covered by a law passed by Congress specifically for that purpose, pursuant to Section 14 of
Republic Act No. 7586 or the National Integrated Protected Areas System Act of 1992:
SEC. 14. Survey for Energy R6'sources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration
only for the purpose of gathering information on energy resources and only if such activity is carried
out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with
a program approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any exploitation and
utilization of energy resources found within NIP AS areas shall be allowed only through a law passed
by Congress.40 (Emphasis supplied)
No law was passed by Congress specifically providing the standards, terms, and conditions of an oil
exploration, extraction, and/or utilization for Tañon Strait and, therefore, no such activities could
have been validly undertaken under SC-46. The National Integrated Protected Areas System Act of
1992 is clear that exploitation and utilization of energy resources in a protected seascape such as
Tañon Strait shall only be allowed through a specific law.
VIII
Former President Gloria Macapagal-Arroyo was not the signatory to SC-46, contrary to the
requirement set by paragraph 4 of Article XII, Section 2 for service contracts involving the
exploration of petroleum. SC-46 was entered into by then Department of Energy Secretary Vicente
S. Perez, Jr., on behalf of the government. I agree with the Main Opinion that in cases where the
Constitution or law requires the President to act personally on the matter, the duty cannot be
delegated to another public official.41 La Bugal highlights the importance of the President's
involvement, being one of the constitutional safeguards against abuse and corruption, as not mere
formality:
At this point, we sum up the matters established, based on a careful reading of the ConCom
deliberations, as follows:
• In their deliberations on what was to become paragraph 4, the framers used the term
service contracts in referring to agreements x x x involving either technical or financial
assistance. • They spoke of service contracts as the concept was understood in the 1973
Constitution.
• It was obvious from their discussions that they were not about to ban or eradicate service
contracts.
• Instead, they were plainly crafting provisions to. put in place safeguards that would
eliminate or m minimize the abuses prevalent during the marital law regime.42 (Emphasis in
the original)
Public respondents failed to show that. Former President Gloria Macapagal-Arroyo was involved in
the signing or execution of SC-46. The failure to comply with this constitutional requirement renders
SC-46 null and void.
IX
Public respondents also failed to show that Congress was subsequently informed of the execution
and existence of SC-46. The reporting requirement is an equally important requisite to the validity of
any service contract involving the exploration, development, and utilization of Philippine petroleum.
Public respondents' failure to report to Congress about SC-46 effectively took away any opportunity
for the legislative branch to scrutinize its terms and conditions.
In sum, SC-46 was executed and implemented absent all the requirements provided under
paragraph 4 of Article XII, Section 2. It is, therefore, null and void.
I am of the view that SC-46, aside from not having complied with the 1987 Constitution, is also null
and void for being violative of environmental laws protecting Tañon Strait. In particular, SC-46 was
implemented despite falling short of the requirements of the National Integrated Protected Areas
System Act of 1992.
As a protected seascape under Presidential Decree No. 1234,43 Tañon Strait is covered by the
National Integrated Protected Areas System Act of 1992. This law declares as a matter of policy:
SEC. 2. Declaration of Policy. Cognizant of the profound impact of man's activities on all
components of the natural environment particularly the effect of increasing population, resource
exploitation and industrial advancement and recognizing the critical importance of protecting and
maintaining the natural biological and physical diversities of the environment notably on areas with
biologically unique features to sustain human life and development, as well as plant and animal life,
it is hereby declared the policy of the State to secure for the Filipino people of present and future
generations the perpetual existence of all native plants and animals through the establishment of a
comprehensive system of integrated protected areas within the classification of national park as
provided for in the Constitution.
It is hereby recognized that these areas, although distinct in features, possess common ecological
values that may be incorporated into a holistic plan representative of our natural heritage; that
effective administration of these areas is possible only through cooperation among national
government, local and concerned private organizations; that the use and enjoyment of these
protected areas must be consistent with the principles of biological diversity and sustainable
development.
To this end, there is hereby established a National Integrated Protected Areas System (NIPAS),
which shall encompass outstanding remarkable areas and biologically important public lands that
are habitats of rare and endangered species of plants and animals, biogeographic zones and related
ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as "protected
areas."44 (Emphasis supplied)
Pursuant to this law, any proposed activity in Tañon Strait must undergo an Environmental Impact
Assessment:
SEC. 12. Environmental Impact Assessment. - Proposals for activities which are outside the scope
of the management plan for protected areas shall be subject to an environmental impact assessment
as required by law before they are adopted, and the results thereof shall be taken into consideration
in the decision-making process.45(Emphasis supplied)
The same provision further requires that an Environmental Compliance Certificate be secured under
the Philippine Environmental Impact Assessment System before arty project is implemented:
No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environment Impact Assessment (EIA) system. In
instances where such activities are allowed to be undertaken, the proponent shall plan and carry
them out in such manner as will minimize any adverse effects and take preventive and remedial
action when appropriate. The proponent shall be liable for any damage due to lack of caution or
indiscretion.46 (Emphasis supplied)
In projects involving the exploration or utilization of energy resources, the National Integrated
Protected Areas System Act of 1992 additionally requires that a program be approved by the
Department of Environment and Natural Resources, which shall be publicly accessible. The program
shall also be submitted to the President, who in turn will recommend the program to Congress.
Furthermore, Congress must enact a law specifically allowing the exploitation of energy resources
found within a protected area such as Tañon Strait:
SEC. 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration
only for the purpose of gathering information on energy resources and only if such activity is carried
out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with
a program approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any exploitation and
utilization of energy resources found within NIPAS areas shall be allowed only through a taw passed
by Congress.47 (Emphasis supplied)
Public respondents argue that SC-46 complied with the procedural requirements of obtaining an
Environmental Compliance Certificate.48 At any rate, they assert that the activities covered by SC-46
fell under Section 14 of the National Integrated Protected Areas System Act of 1992, which they
interpret to be an exception to Section 12. They argue that the Environmental Compliance Certificate
is not a strict requirement for the validity of SC-46 since (a) the Tañon Strait is not a nature' reserve
or natural park; (b) the exploration was merely for gathering information; and ( c) measures were in
place to ensure that the exploration caused the least possible damage to the area.49
Section 14 is not an exception to Section 12, but instead provides additional requirements for cases
involving Philippine energy resources. The National Integrated Protected Areas System Act of 1992
was enacted to recognize the importance of protecting the environment in light of resource
exploitation, among others.50 Systems are put in place to secure for Filipinos local resources under
the most favorable conditions. With the status of Tañon Strait as a protected seascape, the
institution of additional legal safeguards is even more significant.
Public respondents did not validly obtain an Environmental Compliance Certificate for SC-46. Based
on the records, JAPEX commissioned an environmental impact evaluation only in the second
subphase of its project, with the Environmental Management .Bureau of Region
VII granting the project an Environmental Compliance Certificate on March 6, 2007.51
Despite its scale, the seismic surveys from May 9 to 18, 2005 were conducted without any
environmental assessment contrary to Section 12 of the National Integrated Protected Areas System
Act of 1992.
XI
Finally, we honor every living creature when we take care of our environment. As sentient species,
we do not lack in the wisdom or sensitivity to realize that we only borrow the resources that we use
to survive and to thrive. We are not incapable of mitigating the greed that is slowly causing the
demise of our planet. Thus, there is no need for us to feign representation of any other species or
some imagined unborn generation in filing any action in our courts of law to claim any of our
fundamental rights to a healthful ecology. In this way and with candor and courage, we fully shoulder
the responsibility deserving of the grace and power endowed on our species.
ACCORDINGLY, I vote:
(a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE OUT the name of Former
President Gloria Macapagal-Arroyo from the title of this case;
(b) to GRANT G.R. No. 181527; and
(c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for violating the 1987
Constitution, Republic Act No. 7586, and Presidential Decree No. 1234.
MARVIC M.V.F. LEONEN

Associate Justice
G.R. No. 162243 December 3, 2009
HON. HEHERSON ALVAREZ substituted by HON. ELISEA G. GOZUN, in her capacity as

Secretary of the Department of Environment and Natural Resources, Petitioner,
vs.
PICOP RESOURCES, INC., Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 164516
PICOP RESOURCES, INC., Petitioner,

vs.
HON. HEHERSON ALVAREZ substituted by HON. ELISEA G. GOZUN, in her capacity as
Secretary of the Department of Environment and Natural Resources Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 171875
THE HON. ANGELO T. REYES (formerly Hon. Elisea G. Gozun), in his capacity as Secretary of
the Department of Environment and Natural Resources (DENR), Petitioner,
vs.
PAPER INDUSTRIES CORP. OF THE PHILIPPINES (PICOP), Respondent.
RESOLUTION
CHICO-NAZARIO, J.:
The cause of action of PICOP Resources, Inc. (PICOP) in its Petition for Mandamus with the trial
court is clear: the government is bound by contract, a 1969 Document signed by then President
Ferdinand Marcos, to enter into an Integrated Forest Management Agreement (IFMA) with PICOP.
Since the remedy of mandamus lies only to compel an officer to perform a ministerial duty, and since
the 1969 Document itself has a proviso requiring compliance with the laws and the Constitution, the
issues in this Motion for Reconsideration are the following: (1) firstly, is the 1969 Document a
contract enforceable under the Non-Impairment Clause of the Constitution, so as to make the
signing of the IFMA a ministerial duty? (2) secondly, did PICOP comply with all the legal and
constitutional requirements for the issuance of an IFMA?
To recall, PICOP filed with the Department of Environment and Natural Resources (DENR) an
application to have its Timber License Agreement (TLA) No. 43 converted into an IFMA. In the
middle of the processing of PICOP’s application, however, PICOP refused to attend further meetings
with the DENR. Instead, on 2 September 2002, PICOP filed before the Regional Trial Court (RTC) of
Quezon City a Petition for Mandamus1 against then DENR Secretary Heherson T. Alvarez. PICOP
seeks the issuance of a privileged writ of mandamus to compel the DENR Secretary to sign, execute
and deliver an IFMA to PICOP, as well as to –
[I]ssue the corresponding IFMA assignment number on the area covered by the IFMA, formerly TLA
No. 43, as amended; b) to issue the necessary permit allowing petitioner to act and harvest timber
from the said area of TLA No. 43, sufficient to meet the raw material requirements of petitioner’s pulp
and paper mills in accordance with the warranty and agreement of July 29, 1969 between the
government and PICOP’s predecessor-in-interest; and c) to honor and respect the Government
Warranties and contractual obligations to PICOP strictly in accordance with the warranty and
agreement dated July 29, [1969] between the government and PICOP’s predecessor-in-interest. x x
x.2
On 11 October 2002, the RTC rendered a Decision granting PICOP’s Petition for Mandamus, thus:
WHEREFORE, premises considered, the Petition for Mandamus is hereby GRANTED.
The Respondent DENR Secretary Hon. Heherson Alvarez is hereby ordered:
1. to sign, execute and deliver the IFMA contract and/or documents to PICOP and issue the
corresponding IFMA assignment number on the area covered by the IFMA, formerly TLA No.
43, as amended;
2. to issue the necessary permit allowing petitioner to act and harvest timber from the said
area of TLA No. 43, sufficient to meet the raw material requirements of petitioner’s pulp and
paper mills in accordance with the warranty and agreement of July 29, 1969 between the
government and PICOP’s predecessor-in-interest; and
3. to honor and respect the Government Warranties and contractual obligations to PICOP
strictly in accordance with the warranty and agreement dated July 29, 1999 (sic) between the
government and PICOP’s predecessor-in-interest (Exhibits "H", "H-1" to "H-5", particularly
the following:
a) the area coverage of TLA No. 43, which forms part and parcel of the government
warranties;
b) PICOP tenure over the said area of TLA No. 43 and exclusive right to cut, collect
and remove sawtimber and pulpwood for the period ending on April 26, 1977; and
said period to be renewable for [an]other 25 years subject to compliance with
constitutional and statutory requirements as well as with existing policy on timber
concessions; and
c) The peaceful and adequate enjoyment by PICOP of the area as described and
specified in the aforesaid amended Timber License Agreement No. 43.
The Respondent Secretary Alvarez is likewise ordered to pay petitioner the sum of ₱10 million a
month beginning May 2002 until the conversion of TLA No. 43, as amended, to IFMA is formally
effected and the harvesting from the said area is granted.3
On 25 October 2002, the DENR Secretary filed a Motion for Reconsideration.4 In a 10 February 2003
Order, the RTC denied the DENR Secretary’s Motion for Reconsideration and granted PICOP’s
Motion for the Issuance of Writ of Mandamus and/or Writ of Mandatory Injunction.5 The fallo of the
11 October 2002 Decision was practically copied in the 10 February 2003 Order, although there was
no mention of the damages imposed against then DENR Secretary Alvarez.6 The DENR Secretary
filed a Notice of Appeal7 from the 11 October 2002 Decision and the 10 February 2003 Order.
On 19 February 2004, the Seventh Division of the Court of Appeals affirmed8 the Decision of the
RTC, to wit:
WHEREFORE, the appealed Decision is hereby AFFIRMED with modification that the order
directing then DENR Secretary Alvarez "to pay petitioner-appellee the sum of P10 million a month
beginning May, 2002 until the conversion to IFMA of TLA No. 43, as amended, is formally effected
and the harvesting from the said area is granted" is hereby deleted. 9
Challenging the deletion of the damages awarded to it, PICOP filed a Motion for Partial
Reconsideration10 of this Decision, which was denied by the Court of Appeals in a 20 July 2004
Resolution.11
The DENR Secretary and PICOP filed with this Court separate Petitions for Review of the 19
February 2004 Court of Appeals Decision. These Petitions were docketed as G.R. No. 162243 and
No. 164516, respectively. These cases were consolidated with G.R. No. 171875, which relates to
the lifting of a Writ of Preliminary Injunction enjoining the execution pending appeal of the foregoing
Decision.
On 29 November 2006, this Court rendered the assailed Decision on the Consolidated Petitions:
WHEREFORE, the Petition in G.R. No. 162243 is GRANTED. The Decision of the Court of Appeals
insofar as it affirmed the RTC Decision granting the Petition for Mandamus filed by Paper Industries
Corp. of the Philippines (PICOP) is hereby REVERSED and SET ASIDE. The Petition in G.R. No.
164516 seeking the reversal of the same Decision insofar as it nullified the award of damages in
favor of PICOP is DENIED for lack of merit. The Petition in G.R. No. 171875, assailing the lifting of
the Preliminary Mandatory Injunction in favor of the Secretary of Environment and Natural
Resources is DISMISSED on the ground of mootness.12
On 18 January 2006, PICOP filed the instant Motion for Reconsideration, based on the following
grounds:
I.
THE HONORABLE COURT ERRED IN HOLDING THAT THE CONTRACT WITH PRESIDENTIAL
WARRANTY SIGNED BY THE PRESIDENT OF THE REPUBLIC ON 29 JUNE 1969 ISSUED TO
PICOP IS A MERE PERMIT OR LICENSE AND IS NOT A CONTRACT, PROPERTY OR
PROPERTY RIGHT PROTECTED BY THE DUE PROCESS CLAUSE OF THE CONSTITUTION
II.
THE EVALUATION OF PICOP’S MANAGEMENT OF THE TLA 43 NATURAL FOREST CLEARLY

SHOWED SATISFACTORY PERFORMANCE FOR KEEPING THE NATURAL FOREST
GENERALLY INTACT AFTER 50 YEARS OF FOREST OPERATIONS. THIS COMPLETES THE
REQUIREMENT FOR AUTOMATIC CONVERSION UNDER SECTION 9 OF DAO 99-53.
III.
WITH DUE RESPECT, THE HONORABLE COURT, IN REVERSING THE FINDINGS OF FACTS
OF THE TRIAL COURT AND THE COURT OF APPEALS, MISAPPRECIATED THE EVIDENCE,
TESTIMONIAL AND DOCUMENTARY, WHEN IT RULED THAT:
i.
PICOP FAILED TO SUBMIT A FIVE-YEAR FOREST PROTECTION PLAN AND A SEVEN-YEAR

REFORESTATION PLAN FOR THE YEARS UNDER REVIEW.
ii.
PICOP FAILED TO COMPLY WITH THE PAYMENT OF FOREST CHARGES.
iii.
PICOP DID NOT COMPLY WITH THE REQUIREMENT FOR A CERTIFICATION FROM THE NCIP
THAT THE AREA OF TLA 43 DOES NOT OVERLAP WITH ANY ANCESTRAL DOMAIN.
iv.
PICOP FAILED TO HAVE PRIOR CONSULTATION WITH AND APPROVAL FROM THE
SANGUNIAN CONCERNED, AS REQUIRED BY SECTION 27 OF THE REPUBLIC ACT NO. 7160,
OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991.
v.
PCIOP FAILED TO SECURE SOCIAL ACCEPTABILITY UNDER PRESIDENTIAL DECREE NO.

1586.
IV
THE MOTIVATION OF ALVAREZ IN RECALLING THE CLEARANCE FOR AUTOMATIC

CONVERSION HE ISSUED ON 25 OCTOBER 2001 WAS NOT DUE TO ANY SHORTCOMING
FROM PICOP BUT DUE TO HIS DETERMINATION TO EXCLUDE 28,125 HECTARES FROM THE
CONVERSION AND OTHER THINGS.
On 15 December 2008, on Motion by PICOP, the Third Division of this Court resolved to refer the
consolidated cases at bar to the Court en banc. On 16 December 2008, this Court sitting en banc
resolved to accept the said cases and set them for oral arguments. Oral arguments were conducted
on 10 February 2009.
PICOP’s Cause of Action: Matters PICOP Should Have Proven to Be Entitled to a Writ of Mandamus
In seeking a writ of mandamus to compel the issuance of an IFMA in its favor, PICOP relied on a 29
July 1969 Document, the so-called Presidential Warranty approved by then President Ferdinand E.
Marcos in favor of PICOP’s predecessor-in-interest, Bislig Bay Lumber Company, Inc. (BBLCI).
PICOP’s cause of action is summarized in paragraphs 1.6 and 4.19 of its Petition for Mandamus:
1.6 Respondent Secretary impaired the obligation of contract under the said Warranty and
Agreement of 29 July 1969 by refusing to respect the tenure; and its renewal for another twenty five
(25) years, of PICOP over the area covered by the said Agreement which consists of permanent
forest lands with an aggregate area of 121,587 hectares and alienable and disposable lands with an
aggregate area of approximately 21,580 hectares, and petitioner’s exclusive right to cut, collect and
remove sawtimber and pulpwood therein and the peaceful and adequate enjoyment of the said area
as described and specified in petitioner’s Timber License Agreement (TLA) No. 43 guaranteed by
the Government, under the Warranty and Agreement of 29 July 1969.13
4.19 Respondent is in violation of the Constitution and has impaired the obligation of contract by his
refusal to respect: a) the tenurial rights of PICOP over the forest area covered by TLA No. 43, as
amended and its renewal for another twenty five (25) years; b) the exclusive right of PICOP to cut,
collect and remove sawtimber and pulpwood therein; and c) PICOP’s peaceful and adequate
enjoyment of the said area which the government guaranteed under the Warranty and Agreement of
29 July 1969.14
The grounds submitted by PICOP in its Petition for Mandamus are as follows:
Respondent secretary has unlawfully refused and/or neglected to sign and execute the IFMA
contract of PICOP even as the latter has complied with all the legal requirements for the automatic
conversion of TLA No. 43, as amended, into an IFMA.
II
Respondent Secretary acted with grave abuse of discretion and/or in excess of jurisdiction in
refusing to sign and execute PICOP’s IFMA contract, notwithstanding that PICOP had complied with
all the requirements for Automatic Conversion under DAO 99-53, as in fact Automatic Conversion
was already cleared in October, 2001, and was a completed process.
III
Respondent Secretary has impaired the obligation of contract under a valid and binding warranty
and agreement of 29 July 1969 between the government and PICOP’s predecessor-in-interest, by
refusing to respect: a) the tenure of PICOP, and its renewal for another twenty five (25) years, over
the TLA No.43 area covered by said agreement; b) the exclusive right to cut, collect and remove
sawtimber and pulpwood timber; and c) the peaceful and adequate enjoyment of the said area.
IV
As a result of respondent Secretary’s unlawful refusal and/or neglect to sign and deliver the IFMA
contract, and violation of the constitutional rights of PICOP against non-impairment of the obligation
of contract (Sec. 10, Art. III, 1997 [sic] Constitution), PICOP suffered grave and irreparable
damages.15
Petitions for Mandamus are governed by Rule 65 of the Rules of Court, Section 3 of which provides:
SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office
to which such other is entitled, and there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court, to do the act required to be done to
protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of
the wrongful acts of the respondent. (Emphasis supplied.)
PICOP is thus asking this Court to conclude that the DENR Secretary is specifically enjoined by law
to issue an IFMA in its favor. An IFMA, as defined by DENR Administrative Order (DAO) No. 99-
53,16 is -
[A] production-sharing contract entered into by and between the DENR and a qualified applicant
wherein the DENR grants to the latter the exclusive right to develop, manage, protect and utilize a
specified area of forestland and forest resource therein for a period of 25 years and may be renewed
for another 25-year period, consistent with the principle of sustainable development and in
accordance with an approved CDMP, and under which both parties share in its produce.17
PICOP stresses the word "automatic" in Section 9 of this DAO No. 99-53:
Sec. 9. Qualifications of Applicants. – The applicants for IFMA shall be:
(a) A Filipino citizen of legal age; or,
(b) Partnership, cooperative or corporation whether public or private, duly registered under
Philippine laws.
However, in the case of application for conversion of TLA into IFMA, an automatic conversion after
proper evaluation shall be allowed, provided the TLA holder shall have signified such intention prior
to the expiry of the TLA, PROVIDED further, that the TLA holder has showed satisfactory
performance and have complied in the terms of condition of the TLA and pertinent rules and
regulations. (Emphasis supplied.)18
This administrative regulation provision allowing automatic conversion after proper evaluation can
hardly qualify as a law, much less a law specifically enjoining the execution of a contract. To enjoin
is "to order or direct with urgency; to instruct with authority; to command."19 "‘Enjoin’ is a mandatory
word, in legal parlance, always; in common parlance, usually."20 The word "allow," on the other hand,
is not equivalent to the word "must," and is in no sense a command.21
As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform a
ministerial duty, not a discretionary one; mandamus will not issue to control the exercise of discretion
of a public officer where the law imposes upon him the duty to exercise his judgment in reference to
any manner in which he is required to act, because it is his judgment that is to be exercised and not
that of the court.22
The execution of agreements, in itself, involves the exercise of discretion. Agreements are products
of negotiations and mutual concessions, necessitating evaluation of their provisions on the part of
both parties. In the case of the IFMA, the evaluation on the part of the government is specifically
mandated in the afore-quoted Section 3 of DAO No. 99-53. This evaluation necessarily involves the
exercise of discretion and judgment on the part of the DENR Secretary, who is tasked not only to
negotiate the sharing of the profit arising from the IFMA, but also to evaluate the compliance with the
requirements on the part of the applicant.
Furthermore, as shall be discussed later, the period of an IFMA that was merely automatically
converted from a TLA in accordance with Section 9, paragraph 2 of DAO No. 99-53 would only be
for the remaining period of the TLA. Since the TLA of PICOP expired on 26 April 2002, the IFMA that
could have been granted to PICOP via the automatic conversion provision in DAO No. 99-53 would
have expired on the same date, 26 April 2002, and the PICOP’s Petition for Mandamus would have
become moot.
This is where the 1969 Document, the purported Presidential Warranty, comes into play. When
PICOP’s application was brought to a standstill upon the evaluation that PICOP had yet to comply
with the requirements for such conversion, PICOP refused to attend further meetings with the DENR
and instead filed a Petition for Mandamus, insisting that the DENR Secretary had impaired the
obligation of contract by his refusal to respect: a) the tenurial rights of PICOP over the forest area
covered by TLA No. 43, as amended, and its renewal for another twenty-five (25) years; b) the
exclusive right of PICOP to cut, collect and remove sawtimber and pulpwood therein; and c)
PICOP’s peaceful and adequate enjoyment of the said area which the government guaranteed
under the Warranty and Agreement of 29 July 1969. 23
PICOP is, thus, insisting that the government is obligated by contract to issue an IFMA in its favor
because of the 1969 Document.
A contract, being the law between the parties, can indeed, with respect to the State when it is a party
to such contract, qualify as a law specifically enjoining the performance of an act. Hence, it is
possible that a writ of mandamus may be issued to PICOP, but only if it proves both of the following:
1) That the 1969 Document is a contract recognized under the non-impairment clause; and
2) That the 1969 Document specifically enjoins the government to issue the IFMA.
If PICOP fails to prove any of these two matters, the grant of a privileged writ of mandamus is not
warranted. This was why we pronounced in the assailed Decision that the overriding controversy
involved in the Petition was one of law.24 If PICOP fails to prove any of these two matters, more
significantly its assertion that the 1969 Document is a contract, PICOP fails to prove its cause of
action.25 Not even the satisfactory compliance with all legal and administrative requirements for an
IFMA would save PICOP’s Petition for Mandamus.
The reverse, however, is not true. The 1969 Document expressly states that the warranty as to the
tenure of PICOP is "subject to compliance with constitutional and statutory requirements as well as
with existing policy on timber concessions." Thus, if PICOP proves the two above-mentioned
matters, it still has to prove compliance with statutory and administrative requirements for the
conversion of its TLA into an IFMA.
Exhaustion of Administrative Remedies
PICOP uses the same argument –– that the government is bound by contract to issue the IFMA ––
in its refusal to exhaust all administrative remedies by not appealing the alleged illegal non-issuance
of the IFMA to the Office of the President. PICOP claimed in its Petition for Mandamus with the trial
court that:
1.10 This petition falls as an exception to the exhaustion of administrative remedies. The acts of
respondent DENR Secretary complained of in this petition are patently illegal; in derogation of the
constitutional rights of petitioner against non-impairment of the obligation of contracts; without
jurisdiction, or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion
amounting to excess or lack of jurisdiction; and moreover, the failure or refusal of a high government
official such as a Department head from whom relief is brought to act on the matter was considered
equivalent to exhaustion of administrative remedies (Sanoy v. Tantuico, 50 SCRA 455 [1973]), and
there are compelling and urgent reasons for judicial intervention (Bagatsing v. Ramirez, 74 SCRA
306 [1976]).
Thus, if there has been no impairment of the obligation of contracts in the DENR Secretary’s non-
issuance of the IFMA, the proper remedy of PICOP in claiming that it has complied with all statutory
and administrative requirements for the issuance of the IFMA should have been with the Office of
the President. This makes the issue of the enforceability of the 1969 Document as a contract even
more significant.
The Nature and Effects of the Purported 29 July 1969 Presidential Warranty
Base Metals Case
PICOP challenges our ruling that the 1969 Document is not a contract. Before we review this finding,
however, it must be pointed out that one week after the assailed Decision, another division of this
Court promulgated a Decision concerning the very same 1969 Document. Thus, in PICOP
Resources, Inc. v. Base Metals Mineral Resources Corporation,26 five other Justices who were still
unaware of this Division’s Decision,27 came up with the same conclusion as regards the same issue
of whether former President Marcos’s Presidential Warranty is a contract:
Finally, we do not subscribe to PICOP’s argument that the Presidential Warranty dated September
25, 1968 is a contract protected by the non-impairment clause of the 1987 Constitution.
An examination of the Presidential Warranty at once reveals that it simply reassures PICOP of the
government’s commitment to uphold the terms and conditions of its timber license and guarantees
PICOP’s peaceful and adequate possession and enjoyment of the areas which are the basic
sources of raw materials for its wood processing complex. The warranty covers only the right to cut,
collect, and remove timber in its concession area, and does not extend to the utilization of other
resources, such as mineral resources, occurring within the concession.
The Presidential Warranty cannot be considered a contract distinct from PTLA No. 47 and FMA No.
35. We agree with the OSG’s position that it is merely a collateral undertaking which cannot amplify
PICOP’s rights under its timber license. Our definitive ruling in Oposa v. Factoran that a timber
license is not a contract within the purview of the non-impairment clause is edifying. We declared:
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a
contract, property or a property right protected by the due process clause of the Constitution. In Tan
vs. Director of Forestry, this Court held:
"x x x A timber license is an instrument by which the State regulates the utilization and disposition of
forest resources to the end that public welfare is promoted. A timber license is not a contract within
the purview of the due process clause; it is only a license or a privilege, which can be validly
withdrawn whenever dictated by public interest or public welfare as in this case.
‘A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a
contract between the authority, federal, state, or municipal, granting it and the person to whom it is
granted; neither is it a property or a property right, nor does it create a vested right; nor is it taxation'
(C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights,
neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576). x x x"
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary:
"x x x Timber licenses, permits and license agreements are the principal instruments by which the
State regulates the utilization and disposition of forest resources to the end that public welfare is
promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular
concession area and the forest products therein. They may be validly amended, modified, replaced
or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres.
Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27,
1983, 125 SCRA 302]."
Since timber licenses are not contracts, the non-impairment clause, which reads:
"SEC. 10. No law impairing the obligation of contracts shall be passed."
cannot be invoked.
The Presidential Warranty cannot, in any manner, be construed as a contractual undertaking

assuring PICOP of exclusive possession and enjoyment of its concession areas. Such an
interpretation would result in the complete abdication by the State in favor of PICOP of the sovereign
power to control and supervise the exploration, development and utilization of the natural resources
in the area.28
The Motion for Reconsideration was denied with finality on 14 February 2007. A Second Motion for
Reconsideration filed by PICOP was denied on 23 May 2007.
PICOP insists that the pronouncement in Base Metals is a mere obiter dictum, which would not bind
this Court in resolving this Motion for Reconsideration. In the oral arguments, however, upon
questioning from the ponente himself of Base Metals, it was agreed that the issue of whether the
1969 Document is a contract was necessary in the resolution of Base Metals:
JUSTICE TINGA:
And do you confirm that one of the very issues raised by PICOP in that case [PICOP Resources Inc.
v. Base Metal Mineral Resources Corporation] revolves around its claim that a Presidential Warranty
is protected by the non-impairment c[l]ause of the Constitution.
ATTY. AGABIN:
Yes, I believe that statement was made by the Court, your Honor.
JUSTICE TINGA:
Yes. And that claim on the part of PICOP necessarily implies that the Presidential Warranty
according to PICOP is a contract protected by the non-impairment clause.
ATTY. AGABIN:
Yes, Your Honor.
JUSTICE TINGA:
Essentially, the PICOP raised the issue of whether the Presidential Warranty is a contract or not.
ATTY. AGABIN:
Yes, Your Honor.
JUSTICE TINGA:
And therefore any ruling on the part of the Court on that issue could not be an obiter dictum.
ATTY. AGABIN:
Your Honor, actually we believe that the basic issue in that case was whether or not Base Metals
could conduct mining activities underneath the forest reserve allotted to PICOP and the Honorable
Court ruled that the Mining Act of 1995 as well as the Department Order of DENR does not disallow
mining activity under a forest reserve.
JUSTICE TINGA:
But it was PICOP itself which raised the claim that a Presidential Warranty is a contract. And
therefore be, should be protected on the under the non-impairment clause of the Constitution.
ATTY. AGABIN:
Yes, Your Honor. Except that…
JUSTICE TINGA:
So, how can you say now that the Court merely uttered, declared, laid down an obiter dictum in
saying that the Presidential Warranty is not a contract, and it is not being a contract, it is not
prohibited by the non-impairment clause.
ATTY. AGABIN:
This Honorable Court could have just ruled, held that the mining law allows mining activities under a
forest reserve without deciding on that issue that was raised by PICOP, your Honor, and therefore
we believe….
JUSTICE TINGA:
It could have been better if PICOP has not raised that issue and had not claimed that the
Presidential Warranty is not a contract.
ATTY. AGABIN:
Well, that is correct, your Honor except that the Court could have just avoided that question.
Because…
JUSTICE TINGA:
Why[?]
ATTY. AGABIN:
It already settled the issue, the basic issue.
JUSTICE TINGA:
Yes, because the Court in saying that merely reiterated a number of rulings to the effect that the
Presidential Warranty, a Timber License for that matter is not a contract protected by the non-
impairment laws.
ATTY. AGABIN:
Well, it is our submission, your Honor, that it is obiter because, that issue even a phrase by PICOP
was not really fully argued by the parties for the Honorable Court and it seems from my reading at
least it was just an aside given by the Honorable Court to decide on that issue raised by PICOP but
it was not necessary to the decision of the court.
JUSTICE TINGA:
It was not necessary[?]
ATTY. AGABIN:
To the decision of the Court.
JUSTICE TINGA:
It was.
ATTY. AGABIN:
It was not necessary.
JUSTICE TINGA:
It was.
ATTY. AGABIN:
Yes.
JUSTICE TINGA:
And PICOP devoted quite a number of pages in [its] memorandum to that issue and so did the Court
[in its Decision].
ATTY. AGABIN:
Anyway, your Honor, we beg the Court to revisit, not to…29
Interpretation of the 1969 Document That Would Be in Harmony with the Constitution
To remove any doubts as to the contents of the 1969 Document, the purported Presidential
Warranty, below is a complete text thereof:
Republic of the Philippines

Department of Agriculture and Natural Resources
OFFICE OF THE SECRETARY
Diliman, Quezon City
D-53, Licenses (T.L.A. No. 43)

Bislig Bay Lumber Co., Inc.
(Bislig, Surigao)
July 29, 1969
Bislig Bay Lumber Co., Inc.

[unreadable word] Bldg.
Makati, Rizal
S i r s:
This has reference to the request of the Board of Investments through its Chairman in a letter dated
July 16, 1969 for a warranty on the boundaries of your concession area under Timber License
Agreement No. 43, as amended.
We are made to understand that your company is committed to support the first large scale
integrated wood processing complex hereinafter called: "The Project") and that such support will be
provided not only in the form of the supply of pulpwood and other wood materials from your
concession but also by making available funds generated out of your own operations, to supplement
PICOP’s operational sources of funds and other financial arrangements made by him. In order that
your company may provide such support effectively, it is understood that you will call upon your
stockholders to take such steps as may be necessary to effect a unification of managerial, technical,
economic and manpower resources between your company and PICOP.
It is in the public interest to promote industries that will enhance the proper conservation of our forest
resources as well as insure the maximum utilization thereof to the benefit of the national economy.
The administration feels that the PICOP project is one such industry which should enjoy priority over
the usual logging operations hitherto practiced by ordinary timber licensees: For this reason, we are
pleased to consider favorably the request.
We confirm that your Timber License Agreement No. 43, as amended (copy of which is attached as
Annex "A" hereof which shall form part and parcel of this warranty) definitely establishes the
boundary lines of your concession area which consists of permanent forest lands with an aggregate
area of 121,587 hectares and alienable or disposable lands with an aggregate area of approximately
21,580 hectares.
We further confirm that your tenure over the area and exclusive right to cut, collect and remove
sawtimber and pulpwood shall be for the period ending on April 26, 1977; said period to be
renewable for other 25 years subject to compliance with constitutional and statutory requirements as
well as with existing policy on timber concessions.
The peaceful and adequate enjoyment by you of your area as described and specified in your
aforesaid amended Timber License Agreement No. 43 is hereby warranted provided that pertinent
laws, regulations and the terms and conditions of your license agreement are observed.
Very truly yours,
(Sgd.) FERNANDO LOPEZ

Secretary of Agriculture
and Natural Resources
Encl.:
RECOMMENDED BY:
(Sgd.) JOSE VIADO

Acting Director of Forestry
APPROVED:
(Sgd.) FERDINAND E. MARCOS

President of the Philippines
ACCEPTED:
BISLIG BAY LBR. CO., INC.
By:
(Sgd.) JOSE E. SORIANO

President
PICOP interprets this document in the following manner:
6.1 It is clear that the thrust of the government warranty is to establish a particular area defined by
boundary lines of TLA No. 43 for the PICOP Project. In consideration for PICOP’s commitment to
pursue and establish the project requiring huge investment/funding from stockholders and lending
institutions, the government provided a warranty that ensures the continued and exclusive right of
PICOP to source its raw materials needs from the forest and renewable trees within the areas
established.
6.2 As a long-term support, the warranty covers the initial twenty five (25) year period and
is renewable for periods of twenty five (25) years provided the project continues to exist and
operate. Very notably, the wording of the Presidential Warranty connotes that for as long as the
holder complies with all the legal requirements, the term of the warranty is not limited to fifty (50)
years but other twenty five (25) years.
6.3 Note must be made that the government warranted that PICOP’s tenure over the area and
exclusive right to cut, collect and remove saw timber and pulpwood shall be for the period ending on
26 April 1977 and said period to be renewable for other 25 years subject to "compliance with
constitutional and statutory requirements as well as existing policy on timber requirements". It is
clear that the renewal for other 25 years, not necessarily for another 25 years is guaranteed. This
explains why on 07 October 1977, TLA No. 43, as amended, was automatically renewed for another
period of twenty five (25) years to expire on 26 April 2002.30
PICOP’s interpretation of the 1969 Document cannot be sustained. PICOP’s claim that the term of
the warranty is not limited to fifty years, but that it extends to other fifty years, perpetually, violates
Section 2, Article XII of the Constitution which provides:
resources are owned by the State. With the exception of agricultural lands, all other natural
law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the
Mr. Justice Dante O. Tinga’s interpretation of the 1969 Document is much more in accord with the
laws and the Constitution. What one cannot do directly, he cannot do indirectly. Forest lands cannot
be alienated in favor of private entities. Granting to private entities, via a contract, a permanent,
irrevocable, and exclusive possession of and right over forest lands is tantamount to granting
ownership thereof. PICOP, it should be noted, claims nothing less than having exclusive, continuous
and uninterrupted possession of its concession areas,31 where all other entrants are illegal,32 and
where so-called "illegal settlers and squatters" are apprehended.33
IFMAs are production-sharing agreements concerning the development and utilization of natural
resources. As such, these agreements "may be for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and under such terms and conditions as may be
provided by law." Any superior "contract" requiring the State to issue TLAs and IFMAs whenever
they expire clearly circumvents Section 2, Article XII of the Constitution, which provides for the only
permissible schemes wherein the full control and supervision of the State are not derogated: co-
production, joint venture, or production-sharing agreements within the time limit of twenty-five years,
renewable for another twenty-five years.
On its face, the 1969 Document was meant to expire on 26 April 2002, upon the expiration of the
expected extension of the original TLA period ending on 26 April 1977:
well as with existing policy on timber concessions. 1avvphi 1
Any interpretation extending the application of the 1969 Document beyond 26 April 2002 and any
concession that may be granted to PICOP beyond the said date would violate the Constitution, and
no amount of legal hermeneutics can change that. Attempts of PICOP to explain its way out of this
Constitutional provision only led to absurdities, as exemplified in the following excerpt from the oral
arguments:
JUSTICE CARPIO:
The maximum trend of agreement to develop and utilize natural resources like forest products is 25
years plus another 25 years or a total of 50 years correct?
ATTY. AGABIN
Yes, Your Honor.
JUSTICE CARPIO:
That is true for the 1987, 1973, 1935 Constitution, correct?
ATTY. AGABIN:
Yes, Your Honor.
JUSTICE CARPIO:
The TLA here, TLA 43, expired, the first 25 years expired in 1977, correct?
ATTY. AGABIN:
Yes, Your Honor.
JUSTICE CARPIO:
And it was renewed for another 25 years until 2002, the 50th year?
ATTY. AGABIN:
Yes, Your Honor.

JUSTICE CARPIO:
Now, could PICOP before the end of the 50th year let’s say in 2001, one year before the expiration,
could it have asked for an extension of another 25 years of its TLA agreement[?]
ATTY. AGABIN:
I believe so, Your Honor.
JUSTICE CARPIO:
But the Constitution says, maximum of fifty years. How could you ask for another 25 years of its
TLA.
ATTY. AGABIN:
Well, your Honor, we believe on a question like this, this Honorable Court should balance the
interest.
JUSTICE CARPIO:
The Constitution is very clear, you have only a maximum of 50 years, 25 plus another 25. PICOP
could never have applied for an extension, for a third 25-year term whether under the 1935
Constitution, the 1973 Constitution and the 1987 Constitution, correct?
ATTY. AGABIN:
Your Honor, except that we are invoking the warranty, the terms of the warranty….
JUSTICE CARPIO:
Can the warranty prevail over the Constitution?
ATTY. AGABIN:
Well, it is a vested right, your Honor.
JUSTICE CARPIO:
Yes, but whatever it is, can it prevail over the Constitution?
ATTY. AGABIN:
The Constitution itself provides that vested rights should be ….
JUSTICE CARPIO:
If it is not in violation of specific provision of the Constitution. The Constitution says, 25 years plus
another 25 years, that’s the end of it. You mean to say that a President of the Philippines can give
somebody 1,000 years license?
ATTY. AGABIN:
Well, that is not our position, Your Honor. Because our position is that ….
JUSTICE CARPIO:
My question is, what is the maximum term, you said 50 years. So, my next question is, can PICOP
apply for an extension of another 25 years after 2002, the 50th year?
ATTY. AGABIN:
Yes, based on the contract of warranty, Your Honor, because the contract of warranty….
JUSTICE CARPIO:
But in the PICOP license it is very clear, it says here, provision 28, it says the license agreement is
for a total of 50 years. I mean it is very simple, the President or even Congress cannot pass a law
extending the license, whatever kind of license to utilize natural resources for more than fifty year[s].
I mean even the law cannot do that. It cannot prevail over the Constitution. Is that correct, Counsel?
ATTY. AGABIN:
It is correct, Your Honor, except that in this case, what is actually our application is that the law
provides for the conversion of existing TLA into IFMA.
JUSTICE CARPIO:
So, they file the petition for conversion before the end of the 50th year for IFMA.
ATTY. AGABIN:
Yes, Your Honor.
JUSTICE CARPIO:
But IFMA is the same, it is based on Section 2, Article 12 of the Constitution, develop and utilize
natural resources because as you said when the new constitution took effect we did away with the
old licensing regime, we have now co-production, a production sharing, joint venture, direct
undertaking but still the same developing and utilizing the natural resources, still comes from section
2, Art. 12 of the Constitution. It is still a license but different format now.
ATTY. AGABIN:
It is correct, Your Honor, except that the regimes of joint venture, co-production and production
sharing are what is referred to in the constitution, Your Honor, and still covered…
JUSTICE CARPIO:
Yes, but it is covered by same 25 year[s], you mean to say people now can circumvent the 50 year
maximum term by calling their TLA as IFMA and after fifty years calling it ISMA, after another 50
years call it MAMA.
ATTY. AGABIN:
Yes, Your Honor. Because…
JUSTICE CARPIO:
It can be done.
ATTY. AGABIN:
That is provided for by the department itself.34
PICOP is, in effect, arguing that the DENR issued DAO No. 99-53 in order to provide a way to
circumvent the provisions of the Constitution limiting agreements for the utilization of natural
resources to a maximum period of fifty years. Official duties are, however, disputably considered to
be regularly performed,35 and good faith is always presumed.
DAO No. 99-53 was issued to change the means by which the government enters into an agreement
with private entities for the utilization of forest products. DAO No. 99-53 is a late response to the
change in the constitutional provisions on natural resources from the 1973 Constitution, which
allowed the granting of licenses to private entities,36 to the present Constitution, which provides for
co-production, joint venture, or production-sharing agreements as the permissible schemes wherein
private entities may participate in the utilization of forest products. Since the granting of timber
licenses ceased to be a permissible scheme for the participation of private entities under the present
Constitution, their operations should have ceased upon the issuance of DAO No. 99-53, the rule
regulating the schemes under the present Constitution. This would be iniquitous to those with
existing TLAs that would not have expired yet as of the issuance of DAO No. 99-53, especially those
with new TLAs that were originally set to expire after 10 or even 20 or more years. The DENR thus
inserted a provision in DAO No. 99-53 allowing these TLA holders to finish the period of their TLAs,
but this time as IFMAs, without the rigors of going through a new application, which they have
probably just gone through a few years ago.
Such an interpretation would not only make DAO No. 99-53 consistent with the provisions of the
Constitution, but would also prevent possible discrimination against new IFMA applicants:
ASSOCIATE JUSTICE DE CASTRO:
I ask this question because of your interpretation that the period of the IFMA, if your TLA is
converted into IFMA, would cover a new a fresh period of twenty-five years renewable by another
period of twenty-five years.
DEAN AGABIN:
Yes, Your Honor.

Don’t you think that will, in effect, be invidious discrimination with respect to other applicants if you
are granted a fresh period of twenty-five years extendible to another twenty-five years?
DEAN AGABIN:
I don’t think it would be, Your Honor, considering that the IFMA is different regime from the TLA. And
not only that, there are considerations of public health and ecology which should come into play in
this case, and which we had explained in our opening statement and, therefore the provision of the
Constitution on the twenty-five limits for renewal of co-production, joint venture and production
sharing agreements, should be balanced with other values stated in the Constitution, like the value
of balanced ecology, which should be in harmony with the rhythm of nature, or the policy of forest
preservation in Article XII, Section 14 of the Constitution. These are all important policy
considerations which should be balanced against the term limits in Article II of the Constitution.
The provision of this Administrative Order regarding automatic conversion may be reasonable, if, I
want to know if you agree with me, if we limit this automatic conversion to the remaining period of
the TLA, because in that case there will be a valid ground to make a distinction between those with
existing TLA and those who are applying for the first time for IFMA?
DEAN AGABIN:
Well, Your Honor, we beg to disagree, because as I said TLA’s are completely different from IFMA.
The TLA has no production sharing or co-production agreement or condition. All that the licensee
has to do is, to pay forest charges, taxes and other impositions from the local and national
government. On the other hand, the IFMAs contained terms and conditions which are completely
different, and that they either impose co-production, production sharing or joint venture terms. So it’s
a completely different regime, Your Honor.
Precisely, that is the reason why there should be an evaluation of what you mentioned earlier of the
development plan.
DEAN AGABIN:
Yes, Your Honor.
So it will be reasonable to convert a TLA into an IFMA without considering the development plan
submitted by other applicants or the development plan itself of one seeking conversion into IFMA if it
will only be limited to the period, the original period of the TLA. But once you go beyond the period of
the TLA, then you will be, the DENR is I think should evaluate the different proposals of the
applicants if we are thinking of a fresh period of twenty-five years, and which is renewable under the
Constitution by another twenty-five years. So the development plan will be important in this case, the
submission of the development plan of the different applicants must be considered. So I don’t
understand why you mentioned earlier that the development plan will later on be a subject matter of
negotiation between the IFMA grantee and the government. So it seems that it will be too late in the
day to discuss that if you have already converted the TLA into IFMA or if the government has
already granted the IFMA, and then it will later on study the development plan, whether it is viable or
not, or it is sustainable or not, and whether the development plan of the different applicants are, are,
which of the development plan of the different applicants is better or more advantageous to the
government.37
PICOP insists that the alleged Presidential Warranty, having been signed on 29 July 1969, could not
have possibly considered the limitations yet to be imposed by future issuances, such as the 1987
Constitution. However, Section 3, Article XVIII of said Constitution, provides:
Section 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and
other executive issuances not inconsistent with this Constitution shall remain operative until
amended, repealed, or revoked.
In the recent case Sabio v. Gordon,38 we ruled that "(t)he clear import of this provision is that all
existing laws, executive orders, proclamations, letters of instructions and other executive issuances
inconsistent or repugnant to the Constitution are repealed."
When a provision is susceptible of two interpretations, "the one that will render them operative and
effective and harmonious with other provisions of law"39 should be adopted. As the interpretations in
the assailed Decision and in Mr. Justice Tinga’s ponencia are the ones that would not make the
subject Presidential Warranty unconstitutional, these are what we shall adopt.
Purpose of the 1969 Document: Assurance That the Boundaries of Its Concession Area Would Not
Be Altered Despite the Provision in the TLA that the DENR Secretary Can Amend Said Boundaries
In the assailed Decision, we ruled that the 1969 Document cannot be considered a contract that
would bind the government regardless of changes in policy and the demands of public interest and
social welfare. PICOP claims this conclusion "did not take into consideration that PICOP already had
a valid and current TLA before the contract with warranty was signed in 1969."40 PICOP goes on:
"The TLA is a license that equips any TLA holder in the country for harvesting of timber. A TLA is
signed by the Secretary of the DANR now DENR. The Court ignored the significance of the need for
another contract with the Secretary of the DANR but this time with the approval of the President of
the Republic."41 PICOP then asks us: "If PICOP/BBLCI was only an ordinary TLA holder, why will it
go through the extra step of securing another contract just to harvest timber when the same can be
served by the TLA signed only by the Secretary and not requiring the approval of the President of
the Republic(?)"42
The answer to this query is found in TLA No. 43 itself wherein, immediately after the boundary lines
of TLA No. 43 were established, the following conditions were given:
This license is granted to the said party of the second part upon the following express conditions:
I. That authority is granted hereunder to the party of the second part43 to cut, collect or
remove firewood or other minor forest products from the area embraced in this license
agreement except as hereinafter provided.
II. That the party of the first part44 may amend or alter the description of the boundaries of the
area covered by this license agreement to conform with official surveys and that the decision
of the party of the first part as to the exact location of the said boundaries shall be final.
III. That if the party of the first part deems it necessary to establish on the ground the
boundary lines of the area granted under this license agreement, the party of the second part
shall furnish to the party of the first part or its representatives as many laborers as it needs
and all the expenses to be incurred on the work including the wages of such laborers shall
be paid by the party of the second part.45
Thus, BBLCI needed an assurance that the boundaries of its concession area, as established in TLA
No. 43, as amended, would not be altered despite this provision. Hence, BBLCI endeavored to
obtain the 1969 Document, which provides:
We confirm that your Timber License Agreement No. 43, as amended (copy of which is attached as
Annex "A" hereof which shall form part and parcel of this warranty) definitely establishes the
boundary lines of your concession area which consists of permanent forest lands with an aggregate
area of 121,587 hectares and alienable or disposable lands with an aggregate area of approximately
21,580 hectares.
well as with existing policy on timber concessions.
The peaceful and adequate enjoyment by you of your area as described and specified in your
aforesaid amended Timber License Agreement No. 43 is hereby warranted provided that pertinent
laws, regulations and the terms and conditions of your license agreement are observed.46
In Koa v. Court of Appeals,47 we ruled that a warranty is a collateral undertaking and is merely part of
a contract. As a collateral undertaking, it follows the principal wherever it goes. When this was
pointed out by the Solicitor General, PICOP changed its designation of the 1969 Document from
"Presidential Warranty" or "government warranty" in all its pleadings prior to our Decision, to
"contract with warranty" in its Motion for Reconsideration. This, however, is belied by the statements
in the 29 July 1969 Document, which refers to itself as "this warranty."
Re: Allegation That There Were Mutual Contract Considerations
Had the 29 July 1969 Document been intended as a contract, it could have easily said so. More
importantly, it could have clearly defined the mutual considerations of the parties thereto. It could
have also easily provided for the sanctions for the breach of the mutual considerations specified
therein. PICOP had vigorously argued that the 1969 Document was a contract because of these
mutual considerations, apparently referring to the following paragraph of the 1969 Document:
We are made to understand that your company is committed to support the first large scale
integrated wood processing complex hereinafter called: "The Project") and that such support will be
provided not only in the form of the supply of pulpwood and other wood materials from your
concession but also by making available funds generated out of your own operations, to supplement
PICOP’s operational surces (sic) of funds and other financial arrangements made by him. In order
that your company may provide such support effectively, it is understood that you will call upon your
stockholders to take such steps as may be necessary to effect a unification of managerial, technical,
economic and manpower resources between your company and PICOP. 1avv phi 1
This provision hardly evinces a contract consideration (which, in PICOP’s interpretation, is in

exchange for the exclusive and perpetual tenure over 121,587 hectares of forest land and 21,580
hectares of alienable and disposable lands). As elucidated by PICOP itself in bringing up the
Investment Incentives Act which we shall discuss later, and as shown by the tenor of the 1969
Document, the latter document was more of a conferment of an incentive for BBLCI’s investment
rather than a contract creating mutual obligations on the part of the government, on one hand, and
BBLCI, on the other. There was no stipulation providing for sanctions for breach if BBLCI’s being
"committed to support the first large scale integrated wood processing complex" remains a
commitment. Neither did the 1969 Document give BBLCI a period within which to pursue this
commitment.
According to Article 1350 of the Civil Code, "(i)n onerous contracts the cause is understood to be, for
each contracting party, the prestation or promise of a thing or service by the other."48 Private
investments for one’s businesses, while indeed eventually beneficial to the country and deserving to
be given incentives, are still principally and predominantly for the benefit of the investors. Thus, the
"mutual" contract considerations by both parties to this alleged contract would be both for the benefit
of one of the parties thereto, BBLCI, which is not obligated by the 1969 Document to surrender a
share in its proceeds any more than it is already required by its TLA and by the tax laws.
PICOP’s argument that its investments can be considered as contract consideration derogates the
rule that "a license or a permit is not a contract between the sovereignty and the licensee or
permittee, and is not a property in the constitutional sense, as to which the constitutional proscription
against the impairment of contracts may extend." All licensees obviously put up investments,
whether they are as small as a tricycle unit or as big as those put up by multi-billion-peso
corporations. To construe these investments as contract considerations would be to abandon the
foregoing rule, which would mean that the State would be bound to all licensees, and lose its power
to revoke or amend these licenses when public interest so dictates.
The power to issue licenses springs from the State’s police power, known as "the most essential,
insistent and least limitable of powers, extending as it does to all the great public
needs."49 Businesses affecting the public interest, such as the operation of public utilities and those
involving the exploitation of natural resources, are mandated by law to acquire licenses. This is so in
order that the State can regulate their operations and thereby protect the public interest. Thus, while
these licenses come in the form of "agreements," e.g., "Timber License Agreements," they cannot be
considered contracts under the non-impairment clause.50
PICOP found this argument "lame," arguing, thus:
43. It is respectfully submitted that the aforesaid pronouncement in the Decision is an egregious and
monumental error.
44. The Decision could not dismiss as "preposterous" the mutual covenants in the Presidential
Warranty which calls for a huge investment of Php500 million at that time in 1969 out of which
Php268,440,000 raised from domestic foreign lending institution to establish the first large scale
integrated wood processing complex in the Philippines.
45. The Decision puts up a lame explanation that "all licensees put up investments in pursuing their
business"
46. Now there are about a hundred timber licenses issued by the Government thru the DENR, but
these are ordinary timber licenses which involve the mere cutting of timber in the concession area,
and nothing else. Records in the DENR shows that no timber licensee has put up an integrated large
wood processing complex in the Philippines except PICOP.51
PICOP thus argues on the basis of quantity, and wants us to distinguish between the investment of
the tricycle driver and that of the multi-billion corporation. However, not even billions of pesos in
investment can change the fact that natural resources and, therefore, public interest are involved in
PICOP’s venture, consequently necessitating the full control and supervision by the State as
mandated by the Constitution. Not even billions of pesos in investment can buy forest lands, which is
practically what PICOP is asking for by interpreting the 1969 Document as a contract giving it
perpetual and exclusive possession over such lands. Among all TLA holders in the Philippines,
PICOP has, by far, the largest concession area at 143,167 hectares, a land area more than the size
of two Metro Manilas.52 How can it not expect to also have the largest investment?
Investment Incentives Act
PICOP then claims that the contractual nature of the 1969 Document was brought about by its
issuance in accordance with and pursuant to the Investment Incentives Act. According to PICOP:
The conclusion in the Decision that to construe PICOP’s investments as a consideration in a

contract would be to stealthily render ineffective the principle that a license is not a contract between
the sovereignty and the licensee is so flawed since the contract with the warranty dated 29 July 1969
was issued by the Government in accordance with and pursuant to Republic Act No. 5186,
otherwise known as "The Investment Incentives Act."53
PICOP then proceeds to cite Sections 2 and 4(d) and (e) of said act:
Section 2. Declaration of Policy – To accelerate the sound development of the national economy in
consonance with the principles and objectives of economic nationalism, and in pursuance of a
planned, economically feasible and practicable dispersal of industries, under conditions which will
encourage competition and discharge monopolies, it is hereby declared to be the policy of the state
to encourage Filipino and foreign investments, as hereinafter set out, in projects to develop
agricultural, mining and manufacturing industries which increase national income most at the least
cost, increase exports, bring about greater economic stability, provide more opportunities for
employment, raise the standards of living of the people, and provide for an equitable distribution of
wealth. It is further declared to be the policy of the state to welcome and encourage foreign capital to
establish pioneer enterprises that are capital intensive and would utilize a substantial amount of
domestic raw materials, in joint venture with substantial Filipino capital, whenever available.
Section 4. Basic Rights and Guarantees. – All investors and enterprises are entitled to the basic
rights and guarantees provided in the constitution. Among other rights recognized by the
Government of the Philippines are the following:
xxxx
d) Freedom from Expropriation. – There shall be no expropriation by the government of the property
represented by investments or of the property of enterprises except for public use or in the interest of
national welfare and defense and upon payment of just compensation. x x x.
e) Requisition of Investment. – There shall be no requisition of the property represented by the

investment or of the property of enterprises, except in the event of war or national emergency and
only for the duration thereof. Just compensation shall be determined and paid either at the time of
requisition or immediately after cessation of the state of war or national emergency. Payments
received as compensation for the requisitioned property may be remitted in the currency in which the
investment was originally made and at the exchange rate prevailing at the time of remittance, subject
to the provisions of Section seventy-four of republic Act Numbered Two hundred sixty-five.
Section 2 speaks of the policy of the State to encourage Filipino and foreign investments. It does not
speak of how this policy can be implemented. Implementation of this policy is tackled in Sections 5
to 12 of the same law,54 which PICOP failed to mention, and for a good reason. None of the 24
incentives enumerated therein relates to, or even remotely suggests that, PICOP’s proposition that
the 1969 Document is a contract.
PICOP could indeed argue that the enumeration is not exclusive. Certainly, granting incentives to
investors, whether included in the enumeration or not, would be an implementation of this policy.
However, it is presumed that whatever incentives may be given to investors should be within the
bounds of the laws and the Constitution. The declaration of policy in Section 2 cannot, by any stretch
of the imagination, be read to provide an exception to either the laws or, heaven forbid, the
Constitution. Exceptions are never presumed and should be convincingly proven. Section 2 of the
Investment Incentives Act cannot be read as exempting investors from the Constitutional provisions
(1) prohibiting private ownership of forest lands; (2) providing for the complete control and
supervision by the State of exploitation activities; or (3) limiting exploitation agreements to twenty-
five years, renewable for another twenty-five years.
Section 4(d) and (e), on the other hand, is a recognition of rights already guaranteed under the
Constitution. Freedom from expropriation is granted under Section 9 of Article III55 of the
Constitution, while the provision on requisition is a negative restatement of Section 6, Article XII.56
Refusal to grant perpetual and exclusive possession to PICOP of its concession area would not
result in the expropriation or requisition of PICOP’s property, as these forest lands belong to the
State, and not to PICOP. This is not changed by PICOP’s allegation that:
Since it takes 35 years before the company can go back and harvest their residuals in a logged-over
area, it must be assured of tenure in order to provide an inducement for the company to manage and
preserve the residuals during their growth period. This is a commitment of resources over a span of
35 years for each plot for each cycle. No company will undertake the responsibility and cost involved
in policing, preserving and managing residual forest areas until it were sure that it had firm title to the
timber.57
The requirement for logging companies to preserve and maintain forest areas, including the
reforestation thereof, is one of the prices a logging company must pay for the exploitation thereof.
Forest lands are meant to be enjoyed by countless future generations of Filipinos, and not just by
one logging company. The requirements of reforestation and preservation of the concession areas
are meant to protect them, the future generations, and not PICOP. Reforestation and preservation of
the concession areas are not required of logging companies so that they would have something to
cut again, but so that the forest would remain intact after their operations. That PICOP would not
accept the responsibility to preserve its concession area if it is not assured of tenure thereto does
not speak well of its corporate policies.
Conclusion
In sum, PICOP was not able to prove either of the two things it needed to prove to be entitled to a
Writ of Mandamus against the DENR Secretary. The 1969 Document is not a contract recognized
under the non-impairment clause and, even if we assume for the sake of argument that it is, it did
not enjoin the government to issue an IFMA in 2002 either. These are the essential elements in
PICOP’s cause of action, and the failure to prove the same warrants a dismissal of PICOP’s Petition
for Mandamus, as not even PICOP’s compliance with all the administrative and statutory
requirements can save its Petition now.
Whether PICOP Has Complied with the Statutory and Administrative Requirements for the
Conversion of the TLA to an IFMA
In the assailed Decision, our ruling was based on two distinct grounds, each one being sufficient in
itself for us to rule that PICOP was not entitled to a Writ of Mandamus: (1) the 1969 Document, on
which PICOP hinges its right to compel the issuance of an IFMA, is not a contract; and (2) PICOP
has not complied with all administrative and statutory requirements for the issuance of an IFMA.
When a court bases its decision on two or more grounds, each is as authoritative as the other and
neither is obiter dictum.58 Thus, both grounds on which we based our ruling in the assailed Decision
would become judicial dictum, and would affect the rights and interests of the parties to this case
unless corrected in this Resolution on PICOP’s Motion for Reconsideration. Therefore, although
PICOP would not be entitled to a Writ of Mandamus even if the second issue is resolved in its favor,
we should nonetheless resolve the same and determine whether PICOP has indeed complied with
all administrative and statutory requirements for the issuance of an IFMA.
While the first issue (on the nature of the 1969 Document) is entirely legal, this second issue (on
PICOP’s compliance with administrative and statutory requirements for the issuance of an IFMA)
has both legal and factual sub-issues. Legal sub-issues include whether PICOP is legally required to
(1) consult with and acquire an approval from the Sanggunian concerned under Sections 26 and 27
of the Local Government Code; and (2) acquire a Certification from the National Commission on
Indigenous Peoples (NCIP) that the concession area does not overlap with any ancestral domain.
Factual sub-issues include whether, at the time it filed its Petition for Mandamus, PICOP had
submitted the required Five-Year Forest Protection Plan and Seven-Year Reforestation Plan and
whether PICOP had paid all forest charges.
For the factual sub-issues, PICOP invokes the doctrine that factual findings of the trial court,
especially when upheld by the Court of Appeals, deserve great weight. However, deserving of even
greater weight are the factual findings of administrative agencies that have the expertise in the area
of concern. The contentious facts in this case relate to the licensing, regulation and management of
forest resources, the determination of which belongs exclusively to the DENR:
SECTION 4. Mandate. – The Department shall be the primary government agency responsible for
the conservation, management, development and proper use of the country’s environment and
natural resources, specifically forest and grazing lands, mineral resources, including those in
reservation and watershed areas, and lands of the public domain, as well as the licensing and
regulation of all natural resources as may be provided for by law in order to ensure equitable sharing
of the benefits derived therefrom for the welfare of the present and future generations of Filipinos.59
When parties file a Petition for Certiorari against judgments of administrative agencies tasked with
overseeing the implementation of laws, the findings of such administrative agencies are entitled to
great weight. In the case at bar, PICOP could not have filed a Petition for Certiorari, as the DENR
Secretary had not yet even determined whether PICOP should be issued an IFMA. As previously
mentioned, when PICOP’s application was brought to a standstill upon the evaluation that PICOP
had yet to comply with the requirements for the issuance of an IFMA, PICOP refused to attend
further meetings with the DENR and instead filed a Petition for Mandamus against the latter. By
jumping the gun, PICOP did not diminish the weight of the DENR Secretary’s initial determination.
Forest Protection and Reforestation Plans

The Performance Evaluation Team tasked to appraise PICOP’s performance on its TLA No. 43
found that PICOP had not submitted its Five-Year Forest Protection Plan and its Seven-Year
Reforestation Plan.60
In its Motion for Reconsideration, PICOP asserts that, in its Letter of Intent dated 28 August 2000
and marked as Exhibit L in the trial court, there was a reference to a Ten-Year Sustainable Forest
Management Plan (SFMP), in which a Five-Year Forest Protection Plan and a Seven-Year
Reforestation Plan were allegedly incorporated. PICOP submitted a machine copy of a certified
photocopy of pages 50-67 and 104-110 of this SFMP in its Motion for Reconsideration. PICOP
claims that the existence of this SFMP was repeatedly asserted during the IFMA application
process.61
Upon examination of the portions of the SFMP submitted to us, we cannot help but notice that
PICOP’s concept of forest protection is the security of the area against "illegal" entrants and settlers.
There is no mention of the protection of the wildlife therein, as the focus of the discussion of the
silvicultural treatments and the SFMP itself is on the protection and generation of future timber
harvests. We are particularly disturbed by the portions stating that trees of undesirable quality shall
be removed.
However, when we required the DENR Secretary to comment on PICOP’s Motion for
Reconsideration, the DENR Secretary did not dispute the existence of this SFMP, or question
PICOP’s assertion that a Ten-Year Forest Protection Plan and a Ten-Year Reforestation Plan are
already incorporated therein. Hence, since the agency tasked to determine compliance with IFMA
administrative requirements chose to remain silent in the face of allegations of compliance, we are
constrained to withdraw our pronouncement in the assailed Decision that PICOP had not submitted
a Five-Year Forest Protection Plan and a Seven-Year Reforestation Plan for its TLA No. 43. As
previously mentioned, the licensing, regulation and management of forest resources are the primary
responsibilities of the DENR.62
The compliance discussed above is, of course, only for the purpose of determining PICOP’s
satisfactory performance as a TLA holder, and covers a period within the subsistence of PICOP’s
TLA No. 43. This determination, therefore, cannot prohibit the DENR from requiring PICOP, in the
future, to submit proper forest protection and reforestation plans covering the period of the proposed
IFMA.
Forest Charges
In determining that PICOP did not have unpaid forest charges, the Court of Appeals relied on the
assumption that if it were true that PICOP had unpaid forest charges, it should not have been issued
an approved Integrated Annual Operation Plan (IAOP) for the year 2001-2002 by Secretary Alvarez
himself.63
In the assailed Decision, we held that the Court of Appeals had been selective in its evaluation of the
IAOP, as it disregarded the part thereof that shows that the IAOP was approved subject to several
conditions, not the least of which was the submission of proof of the updated payment of forest
charges from April 2001 to June 2001.64 We also held that even if we considered for the sake of
argument that the IAOP should not have been issued if PICOP had existing forestry accounts, the
issuance of the IAOP could not be considered proof that PICOP had paid the same. Firstly, the best
evidence of payment is the receipt thereof. PICOP has not presented any evidence that such
receipts were lost or destroyed or could not be produced in court.65 Secondly, the government
cannot be estopped by the acts of its officers. If PICOP has been issued an IAOP in violation of the
law, allegedly because it may not be issued if PICOP had existing forestry accounts, the government
cannot be estopped from collecting such amounts and providing the necessary sanctions therefor,
including the withholding of the IFMA until such amounts are paid.
We therefore found that, as opposed to the Court of Appeals’ findings, which were based merely on
estoppel of government officers, the positive and categorical evidence presented by the DENR
Secretary was more convincing with respect to the issue of payment of forestry charges:
1. Forest Management Bureau (FMB) Senior Forest Management Specialist (SFMS) Ignacio
M. Evangelista testified that PICOP had failed to pay its regular forest charges covering the
period from 22 September 2001 to 26 April 2002 in the total amount of
₱15,056,054.0566 PICOP also allegedly paid late most of its forest charges from 1996
onwards, by reason of which, PICOP is liable for a surcharge of 25% per annum on the tax
due and interest of 20% per annum which now amounts to ₱150,169,485.02.67 Likewise,
PICOP allegedly had overdue and unpaid silvicultural fees in the amount of ₱2,366,901.00
as of 30 August 2002.68 Summing up the testimony, therefore, it was alleged that PICOP had
unpaid and overdue forest charges in the sum of ₱167,592,440.90 as of 10 August 2002.69
2. Collection letters were sent to PICOP, but no official receipts are extant in the DENR
record in Bislig City evidencing payment of the overdue amount stated in the said collection
letters.70 There were no official receipts for the period covering 22 September 2001 to 26
April 2002.
We also considered these pieces of evidence more convincing than the other ones presented by
PICOP:
1. PICOP presented the certification of Community Environment and Natural Resources

Office (CENRO) Officer Philip A. Calunsag, which refers only to PICOP’s alleged payment of
regular forest charges covering the period from 14 September 2001 to 15 May 2002.71 We
noted that it does not mention similar payment of the penalties, surcharges and interests that
PICOP incurred in paying late several forest charges, which fact was not rebutted by PICOP.
2. The 27 May 2002 Certification by CENRO Calunsag specified only the period covering 14
September 2001 to 15 May 2002 and the amount of P53,603,719.85 paid by PICOP without
indicating the corresponding volume and date of production of the logs. This is in contrast to
the findings of SFMS Evangelista, which cover the period from CY 1996 to 30 August 2002
and includes penalties, interests, and surcharges for late payment pursuant to DAO 80,
series of 1987.
3. The 21 August 2002 PICOP-requested certification issued by Bill Collector Amelia D.

Arayan, and attested to by CENRO Calunsag himself, shows that PICOP paid only regular
forest charges for its log production covering 1 July 2001 to 21 September 2001. However,
there were log productions after 21 September 2001, the regular forest charges for which
have not been paid, amounting to ₱15,056,054.05.72 The same certification shows delayed
payment of forest charges, thereby corroborating the testimony of SFMS Evangelista and
substantiating the imposition of penalties and surcharges.
In its Motion for Reconsideration, PICOP claims that SFMS Evangelista is assigned to an office that
has nothing to do with the collection of forest charges, and that he based his testimony on the
Memoranda of Forest Management Specialist II (FMS II) Teofila Orlanes and DENR, Bislig City Bill
Collector Amelia D. Arayan, neither of whom was presented to testify on his or her Memorandum.
PICOP also submitted an Addendum to Motion for Reconsideration, wherein it appended certified
true copies of CENRO Summaries with attached Official Receipts tending to show that PICOP had
paid a total of ₱81,184,747.70 in forest charges for 10 January 2001 to 20 December 2002,
including the period during which SFMS Evangelista claims PICOP did not pay forest charges (22
September 2001 to 26 April 2002).
Before proceeding any further, it is necessary for us to point out that, as with our ruling on the forest
protection and reforestation plans, this determination of compliance with the payment of forest
charges is exclusively for the purpose of determining PICOP’s satisfactory performance on its TLA
No. 43. This cannot bind either party in a possible collection case that may ensue.
An evaluation of the DENR Secretary’s position on this matter shows a heavy reliance on the
testimony of SFMS Evangelista, making it imperative for us to strictly scrutinize the same with
respect to its contents and admissibility.
PICOP claims that SFMS Evangelista’s office has nothing to do with the collection of forest charges.
According to PICOP, the entity having administrative jurisdiction over it is CENRO, Bislig City by
virtue of DENR Administrative Order No. 96-36, dated 20 November 1996, which states:
1. In order for the DENR to be able to exercise closer and more effective supervision, management
and control over the forest resources within the areas covered by TLA No. 43, PTLA No. 47 and
IFMA No. 35 of the PICOP Resources, Inc., (PRI) and, at the same time, provide greater facility in
the delivery of DENR services to various publics, the aforesaid forest holdings of PRI are hereby
placed under the exclusive jurisdiction of DENR Region No. XIII with the CENR Office at Bislig,
Surigao del Sur, as directly responsible thereto. x x x.
We disagree. Evangelista is an SFMS assigned at the Natural Forest Management Division of the
FMB, DENR. In Evangelista’s aforementioned affidavit submitted as part of his direct examination,
Evangelista enumerated his duties and functions as SFMS:
1. As SFMS, I have the following duties and functions:
a) To evaluate and act on cases pertaining to forest management referred to in the

Natural forest Management Division;
b) To monitor, verify and validate forest management and related activities by timber
licences as to their compliance to approved plans and programs;
c) To conduct investigation and verification of compliance by timber

licenses/permittees to existing DENR rules and regulations;
d) To gather field data and information to be used in the formulation of forest policies
and regulations; and
e) To perform other duties and responsibilities as may be directed by superiors.73
PICOP also alleges that the testimony of SFMS Evangelista was based on the
aforementioned Memoranda of Orlanes and Arayan and that, since neither Orlanes nor
Arayan was presented as a witness, SFMS Evangelista’s testimony should be deemed
hearsay. SFMS Evangelista’s 1 October 2002 Affidavit,74 which was offered as part of his
testimony, provides:
2. Sometime in September, 2001 the DENR Secretary was furnished a copy of forest
Management Specialist II (FMS II) Teofila L. Orlanes’ Memorandum dated September 24,
2001 concerning unopaid forest charges of PICOP. Attached to the said Memorandum was a
Memorandum dated September 19, 2001 of Amelia D. Arayan, Bill collector of the DENR
R13-14, Bislig City. Copies of the said Memoranda are attached as Annexes 1 and 2,
respectively.
3. The said Memoranda were referred to the FMB Director for appropriate action.
4. Thus, on August 5, 2002, I was directed by the FMB Director to proceed to Region 13 to
gather forestry-related data and validate the report contained in the Memoranda of Ms.
Orlanes and Arayan.
5. On August 6, 2002, I proceeded to DENR Region 13 in Bislig City. A copy of my Travel

Order is attached as Annex 3.
6. Upon my arrival at CENRO, Bislig, surigao del Sur, I coordinated with CENRO Officer
Philip A. Calunsag and requested him to make available to me the records regarding the
forest products assessments of PICOP.
7. After I was provided with the requested records, I evaluated and collected the data.
8. After the evaluation, I found that the unpaid forest charges adverted to in the Memoranda
of Mr. Orlanes and Arayan covering the period from May 8, 2001 to July 7, 2001 had already
been paid but late. I further found out that PICOP had not paid its forest charges covering the
period from September 22, 2001 to April 26, 2002 in the total amount of ₱15,056,054.05.
9. I also discovered that from 1996 up to august 30, 2002, PICOP paid late some of its forest
charges in 1996 and consistently failed to pay late its forest charges from 1997 up to the
present time.
10. Under Section 7.4 of DAO No. 80 Series of 197\87 and Paragraph (4a), Section 10 of
BIR revenue Regulations No. 2-81 dated November 18, 1980, PICOP is mandated to pay a
surcharge of 25% per annum of the tax due and interest of 20% per annum for late payment
of forest charges.
11. The overdue unpaid forest charges of PICOP as shown in the attached tabulation
marked as Annex 4 hereof is ₱150,169,485.02. Likewise, PICOP has overdue and unpaid
silvicultural fees in the amount of ₱2,366,901.00 from 1996 to the present.
12. In all, PICOP has an outstanding and overdue total obligation of ₱167,592,440.90 as of
August 30, 2002 based on the attached tabulation which is marked as Annex 5 hereof.75
Clearly, SFMS Evangelista had not relied on the Memoranda of Orlanes and Arayan. On the
contrary, he traveled to Surigao del Sur in order to verify the contents of these Memoranda. SFMS
Evangelista, in fact, revised the findings therein, as he discovered that certain forest charges
adverted to as unpaid had already been paid.
This does not mean, however, that SFMS Evangelista’s testimony was not hearsay. A witness may
testify only on facts of which he has personal knowledge; that is, those derived from his perception,
except in certain circumstances allowed by the Rules.76 Otherwise, such testimony is considered
hearsay and, hence, inadmissible in evidence.77
SFMS Evangelista, while not relying on the Memoranda of Orlanes and Arayan, nevertheless relied
on records, the preparation of which he did not participate in.78 These records and the persons who
prepared them were not presented in court, either. As such, SFMS Evangelista’s testimony, insofar
as he relied on these records, was on matters not derived from his own perception, and was,
therefore, hearsay.
Section 44, Rule 130 of the Rules of Court, which speaks of entries in official records as an
exception to the hearsay rule, cannot excuse the testimony of SFMS Evangelista. Section 44
provides:
SEC. 44. Entries in official records. – Entries in official records made in the performance of his duty
by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined
by law, are prima facie evidence of the facts therein stated.
In Africa v. Caltex,79 we enumerated the following requisites for the admission of entries in official
records as an exception to the hearsay rule: (1) the entries were made by a public officer or a private
person in the performance of a duty; (2) the performance of the duty is especially enjoined by law;
(3) the public officer or the private person had sufficient knowledge of the facts stated by him, which
must have been acquired by him personally or through official information.
The presentation of the records themselves would, therefore, have been admissible as an exception
to the hearsay rule even if the public officer/s who prepared them was/were not presented in court,
provided the above requisites could be adequately proven. In the case at bar, however, neither the
records nor the persons who prepared them were presented in court. Thus, the above requisites
cannot be sufficiently proven. Also, since SFMS Evangelista merely testified based on what those
records contained, his testimony was hearsay evidence twice removed, which was one step too
many to be covered by the official-records exception to the hearsay rule.
SFMS Evangelista’s testimony of nonpayment of forest charges was, furthermore, based on his
failure to find official receipts corresponding to billings sent to PICOP. As stated above, PICOP
attached official receipts in its Addendum to Motion for Reconsideration to this Court. While this
course of action is normally irregular in judicial proceedings, we merely stated in the assailed
Decision that "the DENR Secretary has adequately proven that PICOP has, at this time, failed to
comply with administrative and statutory requirements for the conversion of TLA No. 43 into an
IFMA,"80 and that "this disposition confers another chance to comply with the foregoing
requirements."81
In view of the foregoing, we withdraw our pronouncement that PICOP has unpaid forestry charges,
at least for the purpose of determining compliance with the IFMA requirements.
NCIP Certification
The Court of Appeals held that PICOP need not comply with Section 59 of Republic Act No. 8371,
which requires prior certification from the NCIP that the areas affected do not overlap with any
ancestral domain before any IFMA can be entered into by the government. According to the Court of
Appeals, Section 59 should be interpreted to refer to ancestral domains that have been duly
established as such by the continuous possession and occupation of the area concerned by
indigenous peoples since time immemorial up to the present. The Court of Appeals held that PICOP
had acquired property rights over TLA No. 43 areas, being in exclusive, continuous and
uninterrupted possession and occupation of these areas since 1952 up to the present.
In the assailed Decision, we reversed the findings of the Court of Appeals. Firstly, the Court of
Appeals ruling defies the settled jurisprudence we have mentioned earlier, that a TLA is neither a
property nor a property right, and that it does not create a vested right.82
Secondly, the Court of Appeals’ resort to statutory construction is misplaced, as Section 59 of

Republic Act No. 8379 is clear and unambiguous:
SEC. 59. Certification Precondition. – All departments and other governmental agencies shall
henceforth be strictly enjoined from issuing, renewing or granting any concession, license or lease,
or entering into any production-sharing agreement, without prior certification from the NCIP that the
area affected does not overlap with any ancestral domain. Such certification shall only be issued
after a field-based investigation is conducted by the Ancestral Domains Office of the area
concerned: Provided, That no certification shall be issued by the NCIP without the free and prior
informed and written consent of the ICCs/IPs concerned: Provided, further, That no department,
government agency or government-owned or controlled corporation may issue new concession,
license, lease, or production sharing agreement while there is a pending application for a CADT:
Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with this
Act, any project that has not satisfied the requirement of this consultation process.
PICOP had tried to put a cloud of ambiguity over Section 59 of Republic Act No. 8371 by invoking
the definition of Ancestral Domains in Section 3(a) thereof, wherein the possesssion by Indigenous
Cultural Communities/Indigenous Peoples (ICCs/IPs) must have been continuous to the present.
However, we noted the exception found in the very same sentence invoked by PICOP:
a) Ancestral domains – Subject to Section 56 hereof, refers to all areas generally belonging to
ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a
claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors,
communally or individually since time immemorial, continuously to the present except when
interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of
government projects or any other voluntary dealings entered into by government and private
individuals/corporations, and which are necessary to ensure their economic, social and cultural
welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands
individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds,
worship areas, bodies of water, mineral and other natural resources, and lands which may no longer
be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their
subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic
and/or shifting cultivators;
Ancestral domains, therefore, remain as such even when possession or occupation of these areas
has been interrupted by causes provided under the law, such as voluntary dealings entered into by
the government and private individuals/corporations. Consequently, the issuance of TLA No. 43 in
1952 did not cause the ICCs/IPs to lose their possession or occupation over the area covered by
TLA No. 43.
Thirdly, we held that it was manifestly absurd to claim that the subject lands must first be proven to
be part of ancestral domains before a certification that the lands are not part of ancestral domains
can be required, and invoked the separate opinion of now Chief Justice Reynato Puno in Cruz v.
Secretary of DENR83:
As its subtitle suggests, [Section 59 of R.A. No. 8371] requires as a precondition for the issuance of
any concession, license or agreement over natural resources, that a certification be issued by the
NCIP that the area subject of the agreement does not lie within any ancestral domain. The provision
does not vest the NCIP with power over the other agencies of the State as to determine whether to
grant or deny any concession or license or agreement. It merely gives the NCIP the authority to
ensure that the ICCs/IPs have been informed of the agreement and that their consent thereto has
been obtained. Note that the certification applies to agreements over natural resources that do not
necessarily lie within the ancestral domains. For those that are found within the said domains,
Sections 7(b) and 57 of the IPRA apply.
PICOP rejects the entire disposition of this Court on the matter, relying on the following theory:
84. It is quite clear that Section 59 of R.A. 8371 does not apply to the automatic conversion of TLA
43 to IFMA.
First, the automatic conversion of TLA 43 to an IFMA is not a new project. It is a mere continuation
of the harvesting process in an area that PICOP had been managing, conserving and reforesting for
the last 50 years since 1952. Hence any pending application for a CADT within the area, cannot
affect much less hold back the automatic conversion. That the government now wishes to change
the tenurial system to an IFMA could not change the PICOP project, in existence and operating for
the last 30 (sic) years, into a new one.84
PICOP’s position is anything but clear. What is clearly provided for in Section 59 is that it covers
"issuing, renewing or granting (of) any concession, license or lease, or entering into any production
sharing agreement." PICOP is implying that, when the government changed the tenurial system to
an IFMA, PICOP’s existing TLA would just be upgraded or modified, but would be the very same
agreement, hence, dodging the inclusion in the word "renewing." However, PICOP is conveniently
leaving out the fact that its TLA expired in 2002. If PICOP really intends to pursue the argument that
the conversion of the TLA into an IFMA would not create a new agreement, but would only be a
modification of the old one, then it should be willing to concede that the IFMA expired as well in
2002. An automatic modification would not alter the terms and conditions of the TLA except when
they are inconsistent with the terms and conditions of an IFMA. Consequently, PICOP’s concession
period under the renewed TLA No. 43, which is from the year 1977 to 2002, would remain the same.
PICOP cannot rely on a theory of the case whenever such theory is beneficial to it, but refute the
same whenever the theory is damaging to it. In the same way, PICOP cannot claim that the alleged
Presidential Warranty is "renewable for other 25 years" and later on claim that what it is asking for is
not a renewal. Extensions of agreements must necessarily be included in the term renewal.
Otherwise, the inclusion of "renewing" in Section 59 would be rendered inoperative.
PICOP further claims:
85. Verily, in interpreting the term "held under claim of ownership," the Supreme Court could not
have meant to include claims that had just been filed and not yet recognized under the provisions of
DENR Administrative Order No. 2 Series of 1993, nor to any other community / ancestral domain
program prior to R.A. 8371.
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87. One can not imagine the terrible damage and chaos to the country, its economy, its people and
its future if a mere claim filed for the issuance of a CADC or CADT will already provide those who
filed the application, the authority or right to stop the renewal or issuance of any concession, license
or lease or any production-sharing agreement. The same interpretation will give such applicants
through a mere application the right to stop or suspend any project that they can cite for not
satisfying the requirements of the consultation process of R.A. 8371. If such interpretation gets
enshrined in the statures of the land, the unscrupulous and the extortionists can put any ongoing or
future project or activity to a stop in any part of the country citing their right from having filed an
application for issuance of a CADC or CADT claim and the legal doctrine established by the
Supreme Court in this PICOP case.85
We are not sure whether PICOP’s counsels are deliberately trying to mislead us, or are just plainly
ignorant of basic precepts of law. The term "claim" in the phrase "claim of ownership" is not a
document of any sort. It is an attitude towards something. The phrase "claim of ownership" means
"the possession of a piece of property with the intention of claiming it in hostility to the true
owner."86 It is also defined as "a party’s manifest intention to take over land, regardless of title or
right."87 Other than in Republic Act No. 8371, the phrase "claim of ownership" is thoroughly
discussed in issues relating to acquisitive prescription in Civil Law.
Before PICOP’s counsels could attribute to us an assertion that a mere attitude or intention would
stop the renewal or issuance of any concession, license or lease or any production-sharing
agreement, we should stress beforehand that this attitude or intention must be clearly shown by
overt acts and, as required by Section 3(a), should have been in existence "since time immemorial,
continuously to the present except when interrupted by war, force majeure or displacement by force,
deceit, stealth or as a consequence of government projects or any other voluntary dealings entered
into by government and private individuals/corporations."
Another argument of PICOP involves the claim itself that there was no overlapping:
Second, there could be no overlapping with any Ancestral Domain as proven by the evidence
presented and testimonies rendered during the hearings in the Regional Trial Court. x x x.
x x x x.
88. The DENR issued a total of 73 CADCs as of December 11, 1996. The DENR Undersecretary for
Field Operations had recommended another 11 applications for issuance of CADCs. None of the
CADCs overlap the TLA 43 area.
89. However former DENR Secretary Alvarez, in a memorandum dated 13 September, 2002
addressed to PGMA, insisted that PICOP had to comply with the requirement to secure a Free and
Prior Informed Concent because CADC 095 was issued covering 17,112 hectares of TLA 43.
90. This CADC 095 is a fake CADC and was not validly released by the DENR. While the Legal
Department of the DENR was still in the process of receiving the filings for applicants and the
oppositors to the CADC application, PICOP came across filed copies of a CADC 095 with the
PENRO of Davao Oriental as part of their application for a Community Based Forest Management
Agreement (CBFMA). Further research came across the same group filing copies of the alleged
CADC 095 with the Mines and Geosciences Bureau in Davao City for a mining agreement
application. The two applications had two different versions of the CADCs second page. One had
Mr. Romeo T. Acosta signing as the Social reform Agenda Technical Action Officer, while the other
had him signing as the Head, Community-Based Forest Management Office. One had the word
"Eight" crossed out and "Seven" written to make it appear that the CADC was issued on September
25, 1997, the other made it appear that there were no alterations and the date was supposed to be
originally 25 September 1997.
What is required in Section 59 of Republic Act No. 8379 is a Certification from the NCIP that there
was no overlapping with any Ancestral Domain. PICOP cannot claim that the DENR gravely abused
its discretion for requiring this Certification, on the ground that there was no overlapping. We
reiterate that it is manifestly absurd to claim that the subject lands must first be proven to be part of
ancestral domains before a certification that they are not can be required. As discussed in the
assailed Decision, PICOP did not even seek any certification from the NCIP that the area covered by
TLA No. 43, subject of its IFMA conversion, did not overlap with any ancestral domain.88
Sanggunian Consultation and Approval
While PICOP did not seek any certification from the NCIP that the former’s concession area did not
overlap with any ancestral domain, PICOP initially sought to comply with the requirement under
Sections 26 and 27 of the Local Government Code to procure prior approval of the Sanggunians
concerned. However, only one of the many provinces affected approved the issuance of an IFMA to
PICOP. Undaunted, PICOP nevertheless submitted to the DENR the purported resolution89 of the
Province of Surigao del Sur indorsing the approval of PICOP’s application for IFMA conversion,
apparently hoping either that the disapproval of the other provinces would go unnoticed, or that the
Surigao del Sur approval would be treated as sufficient compliance.
Surprisingly, the disapproval by the other provinces did go unnoticed before the RTC and the Court
of Appeals, despite the repeated assertions thereof by the Solicitor General. When we pointed out in
the assailed Decision that the approval must be by all the Sanggunians concerned and not by only
one of them, PICOP changed its theory of the case in its Motion for Reconsideration, this time
claiming that they are not required at all to procure Sanggunian approval.
Sections 2(c), 26 and 27 of the Local Government Code provide:
SEC. 2. x x x.
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(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, nongovernmental and people’s organizations,
and other concerned sectors of the community before any project or program is implemented in their
respective jurisdictions.
SEC. 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. – It shall
be the duty of every national agency or government-owned or controlled corporation authorizing or
involved in the planning and implementation of any project or program that may cause pollution,
climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover,
and extinction of animal or plant species, to consult with the local government units,
nongovernmental organizations, and other sectors concerned and explain the goals and objectives
of the project or program, its impact upon the people and the community in terms of environmental
or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse
effects thereof.
SEC. 27. Prior Consultations Required. – No project or program shall be implemented by

government authorities unless the consultations mentioned in Sections 2(c) and 26 hereof are
complied with, and prior approval of the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be implemented shall not be evicted unless
appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution.
As stated in the assailed Decision, the common evidence of the DENR Secretary and PICOP,
namely, the 31 July 2001 Memorandum of Regional Executive Director (RED) Elias D. Seraspi, Jr.,
enumerated the local government units and other groups which had expressed their opposition to
PICOP’s application for IFMA conversion:
7. During the conduct of the performance evaluation of TLA No. 43 issues complaints against PRI
were submitted thru Resolutions and letters. It is important that these are included in this report for
assessment of what are their worth, viz:
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7.2 Joint Resolution (unnumbered), dated March 19, 2001 of the Barangay Council and Barangay
Tribal Council of Simulao, Boston, Davao Oriental (ANNEX F) opposing the conversion of TLA No.
43 into IFMA over the 17,112 hectares allegedly covered with CADC No. 095.
7.3 Resolution Nos. 10, s-2001 and 05, s-2001 (ANNEXES G & H) of the Bunawan Tribal Council of
Elders (BBMTCE) strongly demanding none renewal of PICOP TLA. They claim to be the rightful
owner of the area it being their alleged ancestral land.
7.4 Resolution No. 4, S-2001 of Sitio Linao, San Jose, Bislig City (ANNEX I) requesting not to renew
TLA 43 over the 900 hectares occupied by them.
7.5 Resolution No. 22, S-2001 (ANNEX J) of the Sanguniang Bayan, Lingig, Surigao del Sur not to
grant the conversion of TLA 43 citing the plight of former employees of PRI who were forced to enter
and farm portion of TLA No. 43, after they were laid off.
7.6 SP Resolution No. 2001-113 and CDC Resolution Nos. 09-2001 of the Sanguniang Panglungsod
of Bislig City (ANNEXES K & L) requesting to exclude the area of TLA No. 43 for watershed
purposes.
7.7 Resolution No. 2001-164, dated June 01, 2001 (ANNEX M) Sanguniang Panglungsod of Bislig
City opposing the conversion of TLA 43 to IFMA for the reason that IFMA do not give revenue
benefits to the City.90
PICOP had claimed that it complied with the Local Government Code requirement of obtaining prior
approval of the Sanggunian concerned by submitting a purported resolution91 of the Province of
Surigao del Sur indorsing the approval of PICOP’s application for IFMA conversion. We ruled that
this cannot be deemed sufficient compliance with the foregoing provision. Surigao del Sur is not the
only province affected by the area covered by the proposed IFMA. As even the Court of Appeals
found, PICOP’s TLA No. 43 traverses the length and breadth not only of Surigao del Sur but also of
Agusan del Sur, Compostela Valley and Davao Oriental.92
On Motion for Reconsideration, PICOP now argues that the requirement under Sections 26 and 27
does not apply to it:
97. PICOP is not a national agency. Neither is PICOP government owned or controlled. Thus
Section 26 does not apply to PICOP.
98. It is very clear that Section 27 refers to projects or programs to be implemented by government
authorities or government-owned and controlled corporations. PICOP’s project or the automatic
conversion is a purely private endevour. First the PICOP project has been implemented since 1969.
Second, the project was being implemented by private investors and financial institutions.
99. The primary government participation is to warrant and ensure that the PICOP project shall have
peaceful tenure in the permanent forest allocated to provide raw materials for the project. To rule
now that a project whose foundations were commenced as early as 1969 shall now be subjected to
a 1991 law is to apply the law retrospectively in violation of Article 4 of the Civil Code that laws shall
not be applied retroactively.
100. In addition, under DAO 30, Series of 1992, TLA and IFMA operations were not among those
devolved function from the National Government / DENR to the local government unit. Under its
Section 03, the devolved function cover only:
a) Community Based forestry projects.
b) Communal forests of less than 5000 hectares
c) Small watershed areas which are sources of local water supply.93
We have to remind PICOP again of the contents of Section 2, Article XII of the Constitution:
resources are owned by the State. With the exception of agricultural lands, all other natural
law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the
All projects relating to the exploration, development and utilization of natural resources are projects
of the State. While the State may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose
capital is owned by these citizens, such as PICOP, the projects nevertheless remain as State
projects and can never be purely private endeavors.
Also, despite entering into co-production, joint venture, or production-sharing agreements, the State
remains in full control and supervision over such projects. PICOP, thus, cannot limit government
participation in the project to being merely its bouncer, whose primary participation is only to
"warrant and ensure that the PICOP project shall have peaceful tenure in the permanent forest
allocated to provide raw materials for the project."
PICOP is indeed neither a national agency nor a government-owned or controlled corporation. The
DENR, however, is a national agency and is the national agency prohibited by Section 27 from
issuing an IFMA without the prior approval of the Sanggunian concerned. As previously discussed,
PICOP’s Petition for Mandamus can only be granted if the DENR Secretary is required by law to
issue an IFMA. We, however, see here the exact opposite: the DENR Secretary was actually
prohibited by law from issuing an IFMA, as there had been no prior approval by all the other
Sanggunians concerned.
As regards PICOP’s assertion that the application to them of a 1991 law is in violation of the
prohibition against the non-retroactivity provision in Article 4 of the Civil Code, we have to remind
PICOP that it is applying for an IFMA with a term of 2002 to 2027. Section 2, Article XII of the
Constitution allows exploitation agreements to last only "for a period not exceeding twenty-five years,
renewable for not more than twenty-five years." PICOP, thus, cannot legally claim that the project’s
term started in 1952 and extends all the way to the present.
Finally, the devolution of the project to local government units is not required before Sections 26 and
27 would be applicable. Neither Section 26 nor 27 mentions such a requirement. Moreover, it is not
only the letter, but more importantly the spirit of Sections 26 and 27, that shows that the devolution
of the project is not required. The approval of the Sanggunian concerned is required by law, not
because the local government has control over such project, but because the local government has
the duty to protect its constituents and their stake in the implementation of the project. Again,
Section 26 states that it applies to projects that "may cause pollution, climatic change, depletion of
non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or
plant species." The local government should thus represent the communities in such area, the very
people who will be affected by flooding, landslides or even climatic change if the project is not
properly regulated, and who likewise have a stake in the resources in the area, and deserve to be
adequately compensated when these resources are exploited.
Indeed, it would be absurd to claim that the project must first be devolved to the local government
before the requirement of the national government seeking approval from the local government can
be applied. If a project has been devolved to the local government, the local government itself would
be implementing the project. That the local government would need its own approval before
implementing its own project is patently silly.
EPILOGUE AND DISPOSITION
PICOP’c cause of action consists in the allegation that the DENR Secretary, in not issuing an IFMA,
violated its constitutional right against non-impairment of contracts. We have ruled, however, that the
1969 Document is not a contract recognized under the non-impairment clause, much less a contract
specifically enjoining the DENR Secretary to issue the IFMA. The conclusion that the 1969
Document is not a contract recognized under the non-impairment clause has even been disposed of
in another case decided by another division of this Court, PICOP Resources, Inc. v. Base Metals
Mineral Resources Corporation,94 the Decision in which case has become final and executory.
PICOP’s Petition for Mandamus should, therefore, fail.
Furthermore, even if we assume for the sake of argument that the 1969 Document is a contract
recognized under the non-impairment clause, and even if we assume for the sake of argument that
the same is a contract specifically enjoining the DENR Secretary to issue an IFMA, PICOP’s Petition
for Mandamus must still fail. The 1969 Document expressly states that the warranty as to the tenure
of PICOP is "subject to compliance with constitutional and statutory requirements as well as with
existing policy on timber concessions." Thus, if PICOP proves the two above-mentioned matters, it
still has to prove compliance with statutory and administrative requirements for the conversion of its
TLA into an IFMA.
While we have withdrawn our pronouncements in the assailed Decision that (1) PICOP had not
submitted the required forest protection and reforestation plans, and that (2) PICOP had unpaid
forestry charges, thus effectively ruling in favor of PICOP on all factual issues in this case, PICOP
still insists that the requirements of an NCIP certification and Sanggunian consultation and approval
do not apply to it. To affirm PICOP’s position on these matters would entail nothing less than
rewriting the Indigenous Peoples’ Rights Act and the Local Government Code, an act simply beyond
our jurisdiction.
WHEREFORE, the Motion for Reconsideration of PICOP Resources, Inc. is DENIED.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice

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G.R. Nos.

171947-48 February 15, 2011

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT

VELASCO, JR., J.:

WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government

This view is misplaced.

National Capital Region

1. Navotas SLF (PhilEco), Brgy. Tanza (New Site), Navotas City

2. Payatas Controlled Dumpsite, Barangay Payatas, Quezon City

3. Sitio Coral, Brgy. Matictic, Norzagaray, Bulacan

4. Sitio Tiakad, Brgy. San Mateo, Norzagaray, Bulacan

5. Brgy. Minuyan, San Jose del Monte City, Bulacan

6. Brgy. Mapalad, Santa Rosa, Nueva Ecija

7. Sub-zone Kalangitan, Clark Capas, Tarlac Special Economic Zone

8. Kalayaan (Longos), Laguna

9. Brgy. Sto. Nino, San Pablo City, Laguna

10. Brgy. San Antonio (Pilotage SLF), San Pedro, Laguna

13. Brgy. Pintong Bukawe, San Mateo, Rizal (SMSLFDC)

See dissenting opinion I join the dissent of J. Carpio

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

I join the dissent of J. Carpio

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

See dissenting opinion

1 Now the Department of Education (DepEd).

Hon. Presbitero J. Velasco, Jr.

Hon. Jose Midas P. Marquez

Dr. Gil S. Jacinto

Dr. Elisea G. Gozun

Dr. Antonio G.M. La Viña

3 Our Decision in Metropolitan Manila Development Authority v. Concerned Residents of

The Lawphil Project - Arellano Law Foundation

Separation of Powers to be Guarded

ACCORDINGLY, I vote against the approval of the Resolution.

1Department of Environment and Natural Resources (DENR), Department of Interior and

17 Constitution, Art. VII, Sec. 1.

18 Constitution, Art. VII, Sec. 17.

19 131 Phil. 931 (1968).

20 Id. at. 934-935.

21 248 Phil. 487 (1988).

23 57 Phil 600 (1932).

29 Republic Act No. 7160.

31 Supra note 19.

33 Constitution, Art. VI, Sec. 1.

34 Constitution, Art. VII, Sec. 1.

35 Constitution, Art. VIII, Sec. 1.

37 63 Phil. 139 (1936).

40 Dissenting Opinion, id. at 669-670. (Citations omitted)

The Lawphil Project - Arellano Law Foundation

Mandamus does not lie to compel a discretionary act.

In Sps. Abaga v. Sps. Panes16 the Court said:

The Court stated in Tolentino v. Secretary of Finance:30

Article 6, Section 22 of the 1987 Constitution states:

Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to monitor

G.R. No. 196870 June 26, 2012

BORACAY FOUNDATION, INC., Petitioner,

LEONARDO-DE CASTRO, J.:

Nature of the Case

Respondent Province of Aklan (respondent Province) is a political subdivision of the government

Summary of Antecedent Facts

Petitioner describes Boracay as follows: