G.R. No.
101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE
ALFONSO, all surnamed OPOSA, et al, petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN,
JR., in his capacity as the Secretary of the
Department of Environment and Natural Resources,
and THE HONORABLE ERIBERTO U. ROSARIO,
Presiding Judge of the RTC, Makati, Branch
66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of
Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts
of "inter-generational responsibility" and "inter-
generational justice." Specifically, it touches on the issue
of whether the said petitioners have a cause of action to
"prevent the misappropriation or impairment" of
Philippine rainforests and "arrest the unabated
hemorrhage of the country's vital life support systems
and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77
which was filed before Branch 66 (Makati, Metro
Manila) of the Regional Trial Court (RTC), National
Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly
represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock
and non-profit corporation organized for the purpose
of, inter alia, engaging in concerted action geared for the
protection of our environment and natural resources. The
original defendant was the Honorable Fulgencio S.
Factoran, Jr., then Secretary of the Department of
Environment and Natural Resources (DENR). His
substitution in this petition by the new Secretary, the
Honorable Angel C. Alcala, was subsequently ordered
upon proper motion by the petitioners.1 The
complaint2 was instituted as a taxpayers' class suit3 and
alleges that the plaintiffs "are all citizens of the Republic
of the Philippines, taxpayers, and entitled to the full
benefit, use and enjoyment of the natural resource
treasure that is the country's virgin tropical forests." The
same was filed for themselves and others who are
equally concerned about the preservation of said
resource but are "so numerous that it is impracticable to
bring them all before the Court." The minors further
asseverate that they "represent their generation as well as
generations yet unborn."4 Consequently, it is prayed for
that judgment be rendered:
. . . ordering defendant, his agents,
representatives and other persons acting
in his behalf to —
(1) Cancel all existing timber license
agreements in the country;
(2) Cease and desist from receiving,
accepting, processing, renewing or
approving new timber license
agreements.
and granting the plaintiffs ". . . such other reliefs just and
equitable under the premises."5
The complaint starts off with the general averments that
the Philippine archipelago of 7,100 islands has a land
area of thirty million (30,000,000) hectares and is
endowed with rich, lush and verdant rainforests in which
varied, rare and unique species of flora and fauna may be
found; these rainforests contain a genetic, biological and
chemical pool which is irreplaceable; they are also the
habitat of indigenous Philippine cultures which have
existed, endured and flourished since time immemorial;
scientific evidence reveals that in order to maintain a
balanced and healthful ecology, the country's land area
should be utilized on the basis of a ratio of fifty-four per
cent (54%) for forest cover and forty-six per cent (46%)
for agricultural, residential, industrial, commercial and
other uses; the distortion and disturbance of this balance
as a consequence of deforestation have resulted in a host
of environmental tragedies, such as (a) water shortages
resulting from drying up of the water table, otherwise
known as the "aquifer," as well as of rivers, brooks and
streams, (b) salinization of the water table as a result of
the intrusion therein of salt water, incontrovertible
examples of which may be found in the island of Cebu
and the Municipality of Bacoor, Cavite, (c) massive
erosion and the consequential loss of soil fertility and
agricultural productivity, with the volume of soil eroded
estimated at one billion (1,000,000,000) cubic meters per
annum — approximately the size of the entire island of
Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the
disturbance and dislocation of cultural communities,
including the disappearance of the Filipino's indigenous
cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life
leading to a critical reduction in marine resource
productivity, (g) recurrent spells of drought as is
presently experienced by the entire country, (h)
increasing velocity of typhoon winds which result from
the absence of windbreakers, (i) the floodings of
lowlands and agricultural plains arising from the absence
of the absorbent mechanism of forests, (j) the siltation
and shortening of the lifespan of multi-billion peso dams
constructed and operated for the purpose of supplying
water for domestic uses, irrigation and the generation of
electric power, and (k) the reduction of the earth's
capacity to process carbon dioxide gases which has led
to perplexing and catastrophic climatic changes such as
the phenomenon of global warming, otherwise known as
the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental
consequences of continued and deforestation are so
capable of unquestionable demonstration that the same
may be submitted as a matter of judicial notice. This
notwithstanding, they expressed their intention to present
expert witnesses as well as documentary, photographic
and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
1
 CAUSE OF ACTION
7. Plaintiffs replead by reference the
foregoing allegations.
8. Twenty-five (25) years ago, the
Philippines had some sixteen (16)
million hectares of rainforests
constituting roughly 53% of the
country's land mass.
9. Satellite images taken in 1987 reveal
that there remained no more than 1.2
million hectares of said rainforests or
four per cent (4.0%) of the country's
land area.
10. More recent surveys reveal that a
mere 850,000 hectares of virgin old-
growth rainforests are left, barely 2.8%
of the entire land mass of the Philippine
archipelago and about 3.0 million
hectares of immature and uneconomical
secondary growth forests.
11. Public records reveal that the
defendant's, predecessors have granted
timber license agreements ('TLA's') to
various corporations to cut the aggregate
area of 3.89 million hectares for
commercial logging purposes.
A copy of the TLA holders and the
corresponding areas covered is hereto
attached as Annex "A".
12. At the present rate of
deforestation, i.e. about 200,000
hectares per annum or 25 hectares per
hour — nighttime, Saturdays, Sundays
and holidays included — the Philippines
will be bereft of forest resources after
the end of this ensuing decade, if not
earlier.
13. The adverse effects, disastrous
consequences, serious injury and
irreparable damage of this continued
trend of deforestation to the plaintiff
minor's generation and to generations
yet unborn are evident and
incontrovertible. As a matter of fact, the
environmental damages enumerated in
paragraph 6 hereof are already being
felt, experienced and suffered by the
generation of plaintiff adults.
14. The continued allowance by
defendant of TLA holders to cut and
deforest the remaining forest stands will
work great damage and irreparable
injury to plaintiffs — especially plaintiff
minors and their successors — who may
never see, use, benefit from and enjoy
this rare and unique natural resource
treasure.
This act of defendant constitutes a
misappropriation and/or impairment of
the natural resource property he holds in
trust for the benefit of plaintiff minors
and succeeding generations.
15. Plaintiffs have a clear and
constitutional right to a balanced and
healthful ecology and are entitled to
protection by the State in its capacity as
the parens patriae.
16. Plaintiff have exhausted all
administrative remedies with the
defendant's office. On March 2, 1990,
plaintiffs served upon defendant a final
demand to cancel all logging permits in
the country.
A copy of the plaintiffs' letter dated
March 1, 1990 is hereto attached as
Annex "B".
17. Defendant, however, fails and
refuses to cancel the existing TLA's to
the continuing serious damage and
extreme prejudice of plaintiffs.
18. The continued failure and refusal by
defendant to cancel the TLA's is an act
violative of the rights of plaintiffs,
especially plaintiff minors who may be
left with a country that is desertified
(sic), bare, barren and devoid of the
wonderful flora, fauna and indigenous
cultures which the Philippines had been
abundantly blessed with.
19. Defendant's refusal to cancel the
aforementioned TLA's is manifestly
contrary to the public policy enunciated
in the Philippine Environmental Policy
which, in pertinent part, states that it is
the policy of the State —
(a) to create, develop, maintain and
improve conditions under which man
and nature can thrive in productive and
enjoyable harmony with each other;
(b) to fulfill the social, economic and
other requirements of present and future
generations of Filipinos and;
(c) to ensure the attainment of an
environmental quality that is conductive
to a life of dignity and well-being. (P.D.
1151, 6 June 1977)
20. Furthermore, defendant's continued
refusal to cancel the aforementioned
2
 TLA's is contradictory to the
Constitutional policy of the State to —
a. effect "a more equitable distribution
of opportunities, income and wealth"
and "make full and efficient use of
natural resources (sic)." (Section 1,
Article XII of the Constitution);
b. "protect the nation's marine wealth."
(Section 2, ibid);
c. "conserve and promote the nation's
cultural heritage and resources (sic)"
(Section 14, Article XIV, id.);
d. "protect and advance the right of the
people to a balanced and healthful
ecology in accord with the rhythm and
harmony of nature." (Section 16, Article
II, id.)
21. Finally, defendant's act is contrary to
the highest law of humankind — the
natural law — and violative of plaintiffs'
right to self-preservation and
perpetuation.
22. There is no other plain, speedy and
adequate remedy in law other than the
instant action to arrest the unabated
hemorrhage of the country's vital life
support systems and continued rape of
Mother Earth. 6
On 22 June 1990, the original defendant, Secretary
Factoran, Jr., filed a Motion to Dismiss the complaint
based on two (2) grounds, namely: (1) the plaintiffs have
no cause of action against him and (2) the issue raised by
the plaintiffs is a political question which properly
pertains to the legislative or executive branches of
Government. In their 12 July 1990 Opposition to the
Motion, the petitioners maintain that (1) the complaint
shows a clear and unmistakable cause of action, (2) the
motion is dilatory and (3) the action presents a
justiciable question as it involves the defendant's abuse
of discretion.
On 18 July 1991, respondent Judge issued an order
granting the aforementioned motion to dismiss.7 In the
said order, not only was the defendant's claim — that the
complaint states no cause of action against him and that
it raises a political question — sustained, the respondent
Judge further ruled that the granting of the relief prayed
for would result in the impairment of contracts which is
prohibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action
for certiorari under Rule 65 of the Revised Rules of
Court and ask this Court to rescind and set aside the
dismissal order on the ground that the respondent Judge
gravely abused his discretion in dismissing the action.
Again, the parents of the plaintiffs-minors not only
represent their children, but have also joined the latter in
this case.8
On 14 May 1992, We resolved to give due course to the
petition and required the parties to submit their
respective Memoranda after the Office of the Solicitor
General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and
unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound
environment based on Articles 19, 20 and 21 of the Civil
Code (Human Relations), Section 4 of Executive Order
(E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine
Environmental Policy), Section 16, Article II of the 1987
Constitution recognizing the right of the people to a
balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept
of man's inalienable right to self-preservation and self-
perpetuation embodied in natural law. Petitioners
likewise rely on the respondent's correlative obligation
per Section 4 of E.O. No. 192, to safeguard the people's
right to a healthful environment.
It is further claimed that the issue of the respondent
Secretary's alleged grave abuse of discretion in granting
Timber License Agreements (TLAs) to cover more areas
for logging than what is available involves a judicial
question.
Anent the invocation by the respondent Judge of the
Constitution's non-impairment clause, petitioners
maintain that the same does not apply in this case
because TLAs are not contracts. They likewise submit
that even if TLAs may be considered protected by the
said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the
petitioners failed to allege in their complaint a specific
legal right violated by the respondent Secretary for
which any relief is provided by law. They see nothing in
the complaint but vague and nebulous allegations
concerning an "environmental right" which supposedly
entitles the petitioners to the "protection by the state in
its capacity as parens patriae." Such allegations,
according to them, do not reveal a valid cause of action.
They then reiterate the theory that the question of
whether logging should be permitted in the country is a
political question which should be properly addressed to
the executive or legislative branches of Government.
They therefore assert that the petitioners' resources is not
to file an action to court, but to lobby before Congress
for the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs,
respondents submit that the same cannot be done by the
State without due process of law. Once issued, a TLA
remains effective for a certain period of time — usually
for twenty-five (25) years. During its effectivity, the
same can neither be revised nor cancelled unless the
holder has been found, after due notice and hearing, to
have violated the terms of the agreement or other
forestry laws and regulations. Petitioners' proposition to
have all the TLAs indiscriminately cancelled without the
requisite hearing would be violative of the requirements
of due process.
3
Before going any further, We must first focus on some
procedural matters. Petitioners instituted Civil Case No.
90-777 as a class suit. The original defendant and the
present respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is
indeed a class suit. The subject matter of the complaint is
of common and general interest not just to several, but to
all citizens of the Philippines. Consequently, since the
parties are so numerous, it, becomes impracticable, if not
totally impossible, to bring all of them before the court.
We likewise declare that the plaintiffs therein are
numerous and representative enough to ensure the full
protection of all concerned interests. Hence, all the
requisites for the filing of a valid class suit under Section
12, Rule 3 of the Revised Rules of Court are present
both in the said civil case and in the instant petition, the
latter being but an incident to the former.
This case, however, has a special and novel element.
Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for
others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in
behalf of the succeeding generations can only be based
on the concept of intergenerational responsibility insofar
as the right to a balanced and healthful ecology is
concerned. Such a right, as hereinafter expounded,
considers
the "rhythm and harmony of nature." Nature means the
created world in its entirety.9 Such rhythm and harmony
indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land,
waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration,
development and utilization be equitably accessible to
the present as well as future generations. 10 Needless to
say, every generation has a responsibility to the next to
preserve that rhythm and harmony for the full enjoyment
of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the
performance of their obligation to ensure the protection
of that right for the generations to come.
The locus standi of the petitioners having thus been
addressed, We shall now proceed to the merits of the
petition.
After a careful perusal of the complaint in question and a
meticulous consideration and evaluation of the issues
raised and arguments adduced by the parties, We do not
hesitate to find for the petitioners and rule against the
respondent Judge's challenged order for having been
issued with grave abuse of discretion amounting to lack
of jurisdiction. The pertinent portions of the said order
reads as follows:
xxx xxx xxx
After a careful and circumspect
evaluation of the Complaint, the Court
cannot help but agree with the
defendant. For although we believe that
plaintiffs have but the noblest of all
intentions, it (sic) fell short of alleging,
with sufficient definiteness, a specific
legal right they are seeking to enforce
and protect, or a specific legal wrong
they are seeking to prevent and redress
(Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete
with vague assumptions and vague
conclusions based on unverified data. In
fine, plaintiffs fail to state a cause of
action in its Complaint against the
herein defendant.
Furthermore, the Court firmly believes
that the matter before it, being
impressed with political color and
involving a matter of public policy, may
not be taken cognizance of by this Court
without doing violence to the sacred
principle of "Separation of Powers" of
the three (3) co-equal branches of the
Government.
The Court is likewise of the impression
that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed
for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the
country and to cease and desist from
receiving, accepting, processing,
renewing or approving new timber
license agreements. For to do otherwise
would amount to "impairment of
contracts" abhored (sic) by the
fundamental law. 11
We do not agree with the trial court's conclusions that
the plaintiffs failed to allege with sufficient definiteness
a specific legal right involved or a specific legal wrong
committed, and that the complaint is replete with vague
assumptions and conclusions based on unverified data. A
reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal
right — the right to a balanced and healthful ecology
which, for the first time in our nation's constitutional
history, is solemnly incorporated in the fundamental law.
Section 16, Article II of the 1987 Constitution explicitly
provides:
Sec. 16. The State shall protect and
advance the right of the people to a
balanced and healthful ecology in
accord with the rhythm and harmony of
nature.
This right unites with the right to health
which is provided for in the preceding
section of the same article:
Sec. 15. The State shall protect and
promote the right to health of the people
and instill health consciousness among
them.
4
While the right to a balanced and healthful ecology is to
be found under the Declaration of Principles and State
Policies and not under the Bill of Rights, it does not
follow that it is less important than any of the civil and
political rights enumerated in the latter. Such a right
belongs to a different category of rights altogether for it
concerns nothing less than self-preservation and self-
perpetuation — aptly and fittingly stressed by the
petitioners — the advancement of which may even be
said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be written
in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of
the well-founded fear of its framers that unless the rights
to a balanced and healthful ecology and to health are
mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve
the first and protect and advance the second, the day
would not be too far when all else would be lost not only
for the present generation, but also for those to come —
generations which stand to inherit nothing but parched
earth incapable of sustaining life.
The right to a balanced and healthful ecology carries
with it the correlative duty to refrain from impairing the
environment. During the debates on this right in one of
the plenary sessions of the 1986 Constitutional
Commission, the following exchange transpired between
Commissioner Wilfrido Villacorta and Commissioner
Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section
mandate the State to
provide sanctions
against all forms of
pollution — air, water
and noise pollution?
MR. AZCUNA:
Yes, Madam President.
The right to healthful
(sic) environment
necessarily carries with
it the correlative duty of
not impairing the same
and, therefore, sanctions
may be provided for
impairment of
environmental
balance. 12
The said right implies, among many other things, the
judicious management and conservation of the country's
forests.
Without such forests, the ecological or
environmental balance would be irreversiby
disrupted.
Conformably with the enunciated right to a balanced and
healthful ecology and the right to health, as well as the
other related provisions of the Constitution concerning
the conservation, development and utilization of the
country's natural resources, 13 then President Corazon C.
Aquino promulgated on 10 June 1987 E.O. No.
192, 14 Section 4 of which expressly mandates that the
Department of Environment and Natural Resources
"shall be the primary government agency responsible for
the conservation, management, development and proper
use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources,
including those in reservation and watershed areas, and
lands of the public domain, as well as the licensing and
regulation of all natural resources as may be provided for
by law in order to ensure equitable sharing of the
benefits derived therefrom for the welfare of the present
and future generations of Filipinos." Section 3 thereof
makes the following statement of policy:
Sec. 3. Declaration of Policy. — It is
hereby declared the policy of the State
to ensure the sustainable use,
development, management, renewal, and
conservation of the country's forest,
mineral, land, off-shore areas and other
natural resources, including the
protection and enhancement of the
quality of the environment, and
equitable access of the different
segments of the population to the
development and the use of the country's
natural resources, not only for the
present generation but for future
generations as well. It is also the policy
of the state to recognize and apply a true
value system including social and
environmental cost implications relative
to their utilization, development and
conservation of our natural resources.
This policy declaration is substantially re-stated it Title
XIV, Book IV of the Administrative Code of
1987,15 specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. — (1) The
State shall ensure, for the benefit of the
Filipino people, the full exploration and
development as well as the judicious
disposition, utilization, management,
renewal and conservation of the
country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and
other natural resources, consistent with
the necessity of maintaining a sound
ecological balance and protecting and
enhancing the quality of the
environment and the objective of
making the exploration, development
and utilization of such natural resources
equitably accessible to the different
segments of the present as well as future
generations.
(2) The State shall likewise recognize
and apply a true value system that takes
5
 into account social and environmental
cost implications relative to the
utilization, development and
conservation of our natural resources.
The above provision stresses "the necessity of
maintaining a sound ecological balance and protecting
and enhancing the quality of the environment." Section 2
of the same Title, on the other hand, specifically speaks
of the mandate of the DENR; however, it makes
particular reference to the fact of the agency's being
subject to law and higher authority. Said section
provides:
Sec. 2. Mandate. — (1) The Department
of Environment and Natural Resources
shall be primarily responsible for the
implementation of the foregoing policy.
(2) It shall, subject to law and higher
authority, be in charge of carrying out
the State's constitutional mandate to
control and supervise the exploration,
development, utilization, and
conservation of the country's natural
resources.
Both E.O. NO. 192 and the Administrative Code of 1987
have set the objectives which will serve as the bases for
policy formulation, and have defined the powers and
functions of the DENR.
It may, however, be recalled that even before the
ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental
right" of the present and future generations. On 6 June
1977, P.D. No. 1151 (Philippine Environmental Policy)
and P.D. No. 1152 (Philippine Environment Code) were
issued. The former "declared a continuing policy of the
State (a) to create, develop, maintain and improve
conditions under which man and nature can thrive in
productive and enjoyable harmony with each other, (b)
to fulfill the social, economic and other requirements of
present and future generations of Filipinos, and (c) to
insure the attainment of an environmental quality that is
conducive to a life of dignity and well-being." 16 As its
goal, it speaks of the "responsibilities of each generation
as trustee and guardian of the environment for
succeeding generations." 17 The latter statute, on the
other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they
represent) to a balanced and healthful ecology is as clear
as the DENR's duty — under its mandate and by virtue
of its powers and functions under E.O. No. 192 and the
Administrative Code of 1987 — to protect and advance
the said right.
A denial or violation of that right by the other who has
the corelative duty or obligation to respect or protect the
same gives rise to a cause of action. Petitioners maintain
that the granting of the TLAs, which they claim was
done with grave abuse of discretion, violated their right
to a balanced and healthful ecology; hence, the full
protection thereof requires that no further TLAs should
be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in
violation of the legal right or rights of
the other; and its essential elements are
legal right of the plaintiff, correlative
obligation of the defendant, and act or
omission of the defendant in violation of
said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss
based on the ground that the complaint fails to state a
cause of action, 19 the question submitted to the court for
resolution involves the sufficiency of the facts alleged in
the complaint itself. No other matter should be
considered; furthermore, the truth of falsity of the said
allegations is beside the point for the truth thereof is
deemed hypothetically admitted. The only issue to be
resolved in such a case is: admitting such alleged facts to
be true, may the court render a valid judgment in
accordance with the prayer in the
complaint? 20 In Militante vs. Edrosolano, 21 this Court
laid down the rule that the judiciary should "exercise the
utmost care and circumspection in passing upon a
motion to dismiss on the ground of the absence thereof
[cause of action] lest, by its failure to manifest a correct
appreciation of the facts alleged and deemed
hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there
is a blot on the legal order. The law itself stands in
disrepute."
After careful examination of the petitioners' complaint,
We find the statements under the introductory
affirmative allegations, as well as the specific averments
under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed
violation of their rights. On the basis thereof, they may
thus be granted, wholly or partly, the reliefs prayed for.
It bears stressing, however, that insofar as the
cancellation of the TLAs is concerned, there is the need
to implead, as party defendants, the grantees thereof for
they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said
to raise a political question. Policy formulation or
determination by the executive or legislative branches of
Government is not squarely put in issue. What is
principally involved is the enforcement of a right vis-a-
vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the
political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power
or the impenetrable shield that protects executive and
legislative actions from judicial inquiry or review. The
second paragraph of section 1, Article VIII of the
Constitution states that:
Judicial power includes the duty of the
courts of justice to settle actual
controversies involving rights which are
legally demandable and enforceable, and
to determine whether or not there has
been a grave abuse of discretion
amounting to lack or excess of
6
 jurisdiction on the part of any branch or
instrumentality of the Government.
Commenting on this provision in his book, Philippine
Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:
The first part of the authority represents
the traditional concept of judicial power,
involving the settlement of conflicting
rights as conferred as law. The second
part of the authority represents a
broadening of judicial power to enable
the courts of justice to review what was
before forbidden territory, to wit, the
discretion of the political departments of
the government.
As worded, the new provision vests in
the judiciary, and particularly the
Supreme Court, the power to rule upon
even the wisdom of the decisions of the
executive and the legislature and to
declare their acts invalid for lack or
excess of jurisdiction because tainted
with grave abuse of discretion. The
catch, of course, is the meaning of
"grave abuse of discretion," which is a
very elastic phrase that can expand or
contract according to the disposition of
the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking
for this Court, noted:
In the case now before us, the
jurisdictional objection becomes even
less tenable and decisive. The reason is
that, even if we were to assume that the
issue presented before us was political in
nature, we would still not be precluded
from revolving it under the expanded
jurisdiction conferred upon us that now
covers, in proper cases, even the
political question. Article VII, Section 1,
of the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing
the complaint is the non-impairment of contracts clause
found in the Constitution. The court a quo declared that:
The Court is likewise of the impression
that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed
for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the
country and to cease and desist from
receiving, accepting, processing,
renewing or approving new timber
license agreements. For to do otherwise
would amount to "impairment of
contracts" abhored (sic) by the
fundamental law. 24
We are not persuaded at all; on the contrary, We are
amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent
Secretary did not, for obvious reasons, even invoke in
his motion to dismiss the non-impairment clause. If he
had done so, he would have acted with utmost infidelity
to the Government by providing undue and unwarranted
benefits and advantages to the timber license holders
because he would have forever bound the Government to
strictly respect the said licenses according to their terms
and conditions regardless of changes in policy and the
demands of public interest and welfare. He was aware
that as correctly pointed out by the petitioners, into every
timber license must be read Section 20 of the Forestry
Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national
interest so requires, the President may
amend, modify, replace or rescind any
contract, concession, permit, licenses or
any other form of privilege granted
herein . . .
Needless to say, all licenses may thus be
revoked or rescinded by executive action. It is
not a contract, property or a property right
protested by the due process clause of the
Constitution. In Tan vs. Director of
Forestry, 25 this Court held:
. . . A timber license is an instrument by
which the State regulates the utilization
and disposition of forest resources to the
end that public welfare is promoted. A
timber license is not a contract within
the purview of the due process clause; it
is only a license or privilege, which can
be validly withdrawn whenever dictated
by public interest or public welfare as in
this case.
A license is merely a permit or privilege
to do what otherwise would be unlawful,
and is not a contract between the
authority, federal, state, or municipal,
granting it and the person to whom it is
granted; neither is it property or a
property right, nor does it create a vested
right; nor is it taxation (37 C.J. 168).
Thus, this Court held that the granting of
license does not create irrevocable
rights, neither is it property or property
rights (People vs. Ong Tin, 54 O.G.
7576).
We reiterated this pronouncement in Felipe Ysmael, Jr.
& Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license
agreements are the principal instruments
by which the State regulates the
utilization and disposition of forest
resources to the end that public welfare
is promoted. And it can hardly be
gainsaid that they merely evidence a
privilege granted by the State to
7
 qualified entities, and do not vest in the
latter a permanent or irrevocable right to
the particular concession area and the
forest products therein. They may be
validly amended, modified, replaced or
rescinded by the Chief Executive when
national interests so require. Thus, they
are not deemed contracts within the
purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres.
Decree No. 705, as amended. Also, Tan
v. Director of Forestry, G.R. No. L-
24548, October 27, 1983, 125 SCRA
302].
Since timber licenses are not contracts, the non-
impairment clause, which reads:
Sec. 10. No law impairing, the
obligation of contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the
same are contracts, the instant case does not involve a
law or even an executive issuance declaring the
cancellation or modification of existing timber licenses.
Hence, the non-impairment clause cannot as yet be
invoked. Nevertheless, granting further that a law has
actually been passed mandating cancellations or
modifications, the same cannot still be stigmatized as a
violation of the non-impairment clause. This is because
by its very nature and purpose, such as law could have
only been passed in the exercise of the police power of
the state for the purpose of advancing the right of the
people to a balanced and healthful ecology, promoting
their health and enhancing the general welfare. In Abe
vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our
system of government, is not meant to
be absolute. The same is understood to
be subject to reasonable legislative
regulation aimed at the promotion of
public health, moral, safety and welfare.
In other words, the constitutional
guaranty of non-impairment of
obligations of contract is limited by the
exercise of the police power of the State,
in the interest of public health, safety,
moral and general welfare.
The reason for this is emphatically set forth in Nebia vs.
New York, 29 quoted in Philippine American Life
Insurance Co. vs. Auditor General,30 to wit:
Under our form of government the use
of property and the making of contracts
are normally matters of private and not
of public concern. The general rule is
that both shall be free of governmental
interference. But neither property rights
nor contract rights are absolute; for
government cannot exist if the citizen
may at will use his property to the
detriment of his fellows, or exercise his
freedom of contract to work them harm.
Equally fundamental with the private
right is that of the public to regulate it in
the common interest.
In short, the non-impairment clause must yield to the
police power of the state. 31
Finally, it is difficult to imagine, as the trial court did,
how the non-impairment clause could apply with respect
to the prayer to enjoin the respondent Secretary from
receiving, accepting, processing, renewing or approving
new timber licenses for, save in cases of renewal, no
contract would have as of yet existed in the other
instances. Moreover, with respect to renewal, the holder
is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant
Petition is hereby GRANTED, and the challenged Order
of respondent Judge of 18 July 1991 dismissing Civil
Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as
defendants the holders or grantees of the questioned
timber license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero,
Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.
Separate Opinions 
FELICIANO, J., concurring
I join in the result reached by my distinguished brother
in the Court, Davide, Jr., J., in this case which, to my
mind, is one of the most important cases decided by this
Court in the last few years. The seminal principles laid
down in this decision are likely to influence profoundly
the direction and course of the protection and
management of the environment, which of course
embraces the utilization of all the natural resources in
the territorial base of our polity. I have therefore sought
to clarify, basically to myself, what the Court appears to
be saying.
The Court explicitly states that petitioners have the locus
standi necessary to sustain the bringing and,
maintenance of this suit (Decision, pp. 11-12). Locus
standi is not a function of petitioners' claim that their suit
is properly regarded as a class suit. I understand locus
standi to refer to the legal interest which a plaintiff must
have in the subject matter of the suit. Because of the
very broadness of the concept of "class" here involved
— membership in this "class" appears to
embrace everyone living in the country whether now or
in the
future — it appears to me that everyone who may be
expected to benefit from the course of action petitioners
seek to require public respondents to take, is vested with
8
the necessary locus standi. The Court may be seen
therefore to be recognizing a beneficiaries' right of
action in the field of environmental protection, as against
both the public administrative agency directly concerned
and the private persons or entities operating in the field
or sector of activity involved. Whether such
beneficiaries' right of action may be found under any and
all circumstances, or whether some failure to act, in the
first instance, on the part of the governmental agency
concerned must be shown ("prior exhaustion of
administrative remedies"), is not discussed in the
decision and presumably is left for future determination
in an appropriate case.
The Court has also declared that the complaint has
alleged and focused upon "one specific fundamental
legal right — the right to a balanced and healthful
ecology" (Decision, p. 14). There is no question that "the
right to a balanced and healthful ecology" is
"fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in
character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing
excessive violence to language. It is in fact very difficult
to fashion language more comprehensive in scope and
generalized in character than a right to "a balanced and
healthful ecology." The list of particular claims which
can be subsumed under this rubic appears to be entirely
open-ended: prevention and control of emission of toxic
fumes and smoke from factories and motor vehicles; of
discharge of oil, chemical effluents, garbage and raw
sewage into rivers, inland and coastal waters by vessels,
oil rigs, factories, mines and whole communities; of
dumping of organic and inorganic wastes on open land,
streets and thoroughfares; failure to rehabilitate land
after strip-mining or open-pit mining; kaingin or slash-
and-burn farming; destruction of fisheries, coral reefs
and other living sea resources through the use of
dynamite or cyanide and other chemicals; contamination
of ground water resources; loss of certain species of
fauna and flora; and so on. The other statements pointed
out by the Court: Section 3, Executive Order No. 192
dated 10 June 1987; Section 1, Title XIV, Book IV of
the 1987 Administrative Code; and P.D. No. 1151, dated
6 June 1977 — all appear to be formulations of policy,
as general and abstract as the constitutional statements of
basic policy in Article II, Section 16 ("the right — to a
balanced and healthful ecology") and 15 ("the right to
health").
P.D. No. 1152, also dated 6 June 1977, entitled "The
Philippine Environment Code," is, upon the other hand, a
compendious collection of more "specific environment
management policies" and "environment quality
standards" (fourth "Whereas" clause, Preamble) relating
to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation
embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground
water
(vii) mineral resources
Two (2) points are worth making in this connection.
Firstly, neither petitioners nor the Court has identified
the particular provision or provisions (if any) of the
Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to
enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government
agency charged with the formulation and
implementation of guidelines and programs dealing with
each of the headings and sub-headings mentioned above.
The Philippine Environment Code does not, in other
words, appear to contemplate action on the part
of private persons who are beneficiaries of
implementation of that Code.
As a matter of logic, by finding petitioners' cause of
action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in
effect saying that Section 15 (and Section 16) of Article
II of the Constitution are self-executing and judicially
enforceable even in their present form. The implications
of this doctrine will have to be explored in future cases;
those implications are too large and far-reaching in
nature even to be hinted at here.
My suggestion is simply that petitioners must, before the
trial court, show a more specific legal right — a right
cast in language of a significantly lower order of
generality than Article II (15) of the Constitution — that
is or may be violated by the actions, or failures to act,
imputed to the public respondent by petitioners so that
the trial court can validly render judgment granting all or
part of the relief prayed for. To my mind, the Court
should be understood as simply saying that such a more
specific legal right or rights may well exist in
our corpus of law, considering the general policy
principles found in the Constitution and the existence of
the Philippine Environment Code, and that the trial court
should have given petitioners an effective opportunity so
to demonstrate, instead of aborting the proceedings on a
motion to dismiss.
It seems to me important that the legal right which is an
essential component of a cause of action be a specific,
operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that
unless the legal right claimed to have been violated or
disregarded is given specification in operational terms,
defendants may well be unable to defend themselves
intelligently and effectively; in other words, there are
due process dimensions to this matter.
The second is a broader-gauge consideration — where a
specific violation of law or applicable regulation is not
alleged or proved, petitioners can be expected to fall
back on the expanded conception of judicial power in the
second paragraph of Section 1 of Article VIII of the
Constitution which reads:
9
 Section 1. . . .
Judicial power includes the duty of the
courts of justice to settle actual
controversies involving rights which are
legally demandable and enforceable, and
to determine whether or not there has
been a grave abuse of
discretion amounting to lack or excess
of jurisdiction on the part of any branch
or instrumentality of the Government.
(Emphasis supplied)
When substantive standards as general as "the
right to a balanced and healthy ecology" and
"the right to health" are combined with remedial
standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of
jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted
ocean of social and economic policy making. At
least in respect of the vast area of environmental
protection and management, our courts have no
claim to special technical competence and
experience and professional qualification. Where
no specific, operable norms and standards are
shown to exist, then the policy making
departments — the legislative and executive
departments — must be given a real and
effective opportunity to fashion and promulgate
those norms and standards, and to implement
them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the
timber companies, whose concession agreements or
TLA's petitioners demand public respondents should
cancel, must be impleaded in the proceedings below. It
might be asked that, if petitioners' entitlement to the
relief demanded is not dependent upon proof of breach
by the timber companies of one or more of the specific
terms and conditions of their concession agreements
(and this, petitioners implicitly assume), what will those
companies litigate about? The answer I suggest is that
they may seek to dispute the existence of the specific
legal right petitioners should allege, as well as the reality
of the claimed factual nexus between petitioners' specific
legal rights and the claimed wrongful acts or failures to
act of public respondent administrative agency. They
may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the
circumstances which exist.
I vote to grant the Petition for Certiorari because the
protection of the environment, including the forest cover
of our territory, is of extreme importance for the country.
The doctrines set out in the Court's decision issued today
should, however, be subjected to closer examination.
G.R. No. 206510               September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of
Puerto Princesa D.D.; et al., Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of
the US. 7th Fleet, et al., Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of
Kalikasan with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO) under Rule 7 of
A.M. No. 09-6-8-SC, otherwise known as the Rules of
Procedure for Environmental Cases (Rules), involving
violations of environmental laws and regulations in
relation to the grounding of the US military ship USS
Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring
people of southern Philippines) language which means
"long reef exposed at low tide." Tubbataha is composed
of two huge coral atolls - the north atoll and the south
atoll - and the Jessie Beazley Reef, a smaller coral
structure about 20 kilometers north of the atolls. The
reefs of Tubbataha and Jessie Beazley are considered
part of Cagayancillo, a remote island municipality of
Palawan.1
In 1988, Tubbataha was declared a National Marine Park
by virtue of Proclamation No. 306 issued by President
Corazon C. Aquino on August 11, 1988. Located in the
middle of Central Sulu Sea, 150 kilometers southeast of
Puerto Princesa City, Tubbataha lies at the heart of the
Coral Triangle, the global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations
Educational Scientific and Cultural Organization
(UNESCO) as a World Heritage Site. It was recognized
as one of the Philippines' oldest ecosystems, containing
excellent examples of pristine reefs and a high diversity
of marine life. The 97,030-hectare protected marine park
is also an important habitat for internationally threatened
and endangered marine species. UNESCO cited
Tubbataha's outstanding universal value as an important
and significant natural habitat for in situ conservation of
biological diversity; an example representing significant
on-going ecological and biological processes; and an
area of exceptional natural beauty and aesthetic
importance.2
On April 6, 2010, Congress passed Republic Act (R.A.)
No. 10067,3 otherwise known as the "Tubbataha Reefs
Natural Park (TRNP) Act of 2009" "to ensure the
protection and conservation of the globally significant
economic, biological, sociocultural, educational and
scientific values of the Tubbataha Reefs into perpetuity
for the enjoyment of present and future generations."
Under the "no-take" policy, entry into the waters of
TRNP is strictly regulated and many human activities
are prohibited and penalized or fined, including fishing,
10
gathering, destroying and disturbing the resources within
the TRNP. The law likewise created the Tubbataha
Protected Area Management Board (TPAMB) which
shall be the sole policy-making and permit-granting
body of the TRNP.
The USS Guardian is an Avenger-class mine
countermeasures ship of the US Navy. In December
2012, the US Embassy in the Philippines requested
diplomatic clearance for the said vessel "to enter and exit
the territorial waters of the Philippines and to arrive at
the port of Subic Bay for the purpose of routine ship
replenishment, maintenance, and crew liberty."4 On
January 6, 2013, the ship left Sasebo, Japan for Subic
Bay, arriving on January 13, 2013 after a brief stop for
fuel in Okinawa, Japan.1âwphi1
On January 15, 2013, the USS Guardian departed Subic
Bay for its next port of call in Makassar, Indonesia. On
January 17, 2013 at 2:20 a.m. while transiting the Sulu
Sea, the ship ran aground on the northwest side of South
Shoal of the Tubbataha Reefs, about 80 miles east-
southeast of Palawan. No cine was injured in the
incident, and there have been no reports of leaking fuel
or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice
Admiral Scott Swift, expressed regret for the incident in
a press statement.5 Likewise, US Ambassador to the
Philippines Harry K. Thomas, Jr., in a meeting at the
Department of Foreign Affairs (DFA) on February 4,
"reiterated his regrets over the grounding incident and
assured Foreign Affairs Secretazy Albert F. del Rosario
that the United States will provide appropriate
compensation for damage to the reef caused by the
ship."6 By March 30, 2013, the US Navy-led salvage
team had finished removing the last piece of the
grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their
behalf and in representation of their respective
sector/organization and others, including minors or
generations yet unborn, filed the present petition agairtst
Scott H. Swift in his capacity as Commander of the US
7th Fleet, Mark A. Rice in his capacity as Commanding
Officer of the USS Guardian and Lt. Gen. Terry G.
Robling, US Marine Corps Forces, Pacific and Balikatan
2013 Exercises Co-Director ("US respondents");
President Benigno S. Aquino III in his capacity as
Commander-in-Chief of the Armed Forces of the
Philippines (AFP), DF A Secretary Albert F. Del
Rosario, Executive Secretary Paquito Ochoa, Jr.,
Secretary Voltaire T. Gazmin (Department of National
Defense), Secretary Jesus P. Paje (Department of
Environment and Natural Resources), Vice-Admiral Jose
Luis M. Alano (Philippine Navy Flag Officer in
Command, AFP), Admiral Rodolfo D. Isorena
(Philippine Coast Guard Commandant), Commodore
Enrico Efren Evangelista (Philippine Coast Guard-
Palawan), and Major General Virgilio 0. Domingo (AFP
Commandant), collectively the "Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-
salvaging operations of the USS Guardian cause and
continue to cause environmental damage of such
magnitude as to affect the provinces of Palawan,
Antique, Aklan, Guimaras, Iloilo, Negros Occidental,
Negros Oriental, Zamboanga del Norte, Basilan, Sulu,
and Tawi-Tawi, which events violate their constitutional
rights to a balanced and healthful ecology. They also
seek a directive from this Court for the institution of
civil, administrative and criminal suits for acts
committed in violation of environmental laws and
regulations in connection with the grounding incident.
Specifically, petitioners cite the following violations
committed by US respondents under R.A. No. 10067:
unauthorized entry (Section 19); non-payment of
conservation fees (Section 21 ); obstruction of law
enforcement officer (Section 30); damages to the reef
(Section 20); and destroying and disturbing resources
(Section 26[g]). Furthermore, petitioners assail certain
provisions of the Visiting Forces Agreement (VFA)
which they want this Court to nullify for being
unconstitutional.
The numerous reliefs sought in this case are set forth in
the final prayer of the petition, to wit: WHEREFORE, in
view of the foregoing, Petitioners respectfully pray that
the Honorable Court: 1. Immediately issue upon the
filing of this petition a Temporary Environmental
Protection Order (TEPO) and/or a Writ of Kalikasan,
which shall, in particular,
a. Order Respondents and any person acting on
their behalf, to cease and desist all operations
over the Guardian grounding incident;
b. Initially demarcating the metes and bounds of
the damaged area as well as an additional buffer
zone;
c. Order Respondents to stop all port calls and
war games under 'Balikatan' because of the
absence of clear guidelines, duties, and liability
schemes for breaches of those duties, and
require Respondents to assume responsibility for
prior and future environmental damage in
general, and environmental damage under the
Visiting Forces Agreement in particular.
d. Temporarily define and describe allowable
activities of ecotourism, diving, recreation, and
limited commercial activities by fisherfolk and
indigenous communities near or around the
TRNP but away from the damaged site and an
additional buffer zone;
2. After summary hearing, issue a Resolution
extending the TEPO until further orders of the
Court;
3. After due proceedings, render a Decision
which shall include, without limitation:
a. Order Respondents Secretary of Foreign
Affairs, following the dispositive portion of
Nicolas v. Romulo, "to forthwith negotiate with
the United States representatives for the
11
appropriate agreement on [environmental
guidelines and environmental accountability]
under Philippine authorities as provided in Art.
V[] of the VFA ... "
b. Direct Respondents and appropriate agencies
to commence administrative, civil, and criminal
proceedings against erring officers and
individuals to the full extent of the law, and to
make such proceedings public;
c. Declare that Philippine authorities may
exercise primary and exclusive criminal
jurisdiction over erring U.S. personnel under the
circumstances of this case;
d. Require Respondents to pay just and
reasonable compensation in the settlement of all
meritorious claims for damages caused to the
Tubbataha Reef on terms and conditions no less
severe than those applicable to other States, and
damages for personal injury or death, if such had
been the case;
e. Direct Respondents to cooperate in providing
for the attendance of witnesses and in the
collection and production of evidence, including
seizure and delivery of objects connected with
the offenses related to the grounding of the
Guardian;
f. Require the authorities of the Philippines and
the United States to notify each other of the
disposition of all cases, wherever heard, related
to the grounding of the Guardian;
g. Restrain Respondents from proceeding with
any purported restoration, repair, salvage or post
salvage plan or plans, including cleanup plans
covering the damaged area of the Tubbataha
Reef absent a just settlement approved by the
Honorable Court;
h. Require Respondents to engage in stakeholder
and LOU consultations in accordance with the
Local Government Code and R.A. 10067;
i. Require Respondent US officials and their
representatives to place a deposit to the TRNP
Trust Fund defined under Section 17 of RA
10067 as a bona .fide gesture towards full
reparations;
j. Direct Respondents to undertake measures to
rehabilitate the areas affected by the grounding
of the Guardian in light of Respondents'
experience in the Port Royale grounding in
2009, among other similar grounding incidents;
k. Require Respondents to regularly publish on a
quarterly basis and in the name of transparency
and accountability such environmental damage
assessment, valuation, and valuation methods, in
all stages of negotiation;
l. Convene a multisectoral technical working
group to provide scientific and technical support
to the TPAMB;
m. Order the Department of Foreign Affairs,
Department of National Defense, and the
Department of Environment and Natural
Resources to review the Visiting Forces
Agreement and the Mutual Defense Treaty to
consider whether their provisions allow for the
exercise of erga omnes rights to a balanced and
healthful ecology and for damages which follow
from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting
Forces Agreement for purposes of protecting the
damaged areas of TRNP;
o. Declare the grant of immunity found in
Article V ("Criminal Jurisdiction") and Article
VI of the Visiting Forces Agreement
unconstitutional for violating equal protection
and/or for violating the preemptory norm of
nondiscrimination incorporated as part of the
law of the land under Section 2, Article II, of the
Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the
Tubbataha Reefs in all other respects; and
4. Provide just and equitable environmental
rehabilitation measures and such other reliefs as
are just and equitable under the
premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their
comment8 to the petition, petitioners also filed a motion
for early resolution and motion to proceed ex parte
against the US respondents.9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the
application for a TEPO and ocular inspection and
production orders, respondents assert that: ( 1) the
grounds relied upon for the issuance of a TEPO or writ
of Kalikasan have become fait accompli as the salvage
operations on the USS Guardian were already
completed; (2) the petition is defective in form and
substance; (3) the petition improperly raises issues
involving the VFA between the Republic of the
Philippines and the United States of America; and ( 4)
the determination of the extent of responsibility of the
US Government as regards the damage to the Tubbataha
Reefs rests exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal
standing of petitioners to file the present petition.
Locus standi is "a right of appearance in a court of
justice on a given question."10 Specifically, it is "a party's
12
personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result" of the
act being challenged, and "calls for more than just a
generalized grievance."11 However, the rule on standing
is a procedural matter which this Court has relaxed for
non-traditional plaintiffs like ordinary citizens, taxpayers
and legislators when the public interest so requires, such
as when the subject matter of the controversy is of
transcendental importance, of overreaching significance
to society, or of paramount public interest.12
In the landmark case of Oposa v. Factoran, Jr., 13 we
recognized the "public right" of citizens to "a balanced
and healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the
fundamental law." We declared that the right to a
balanced and healthful ecology need not be written in the
Constitution for it is assumed, like other civil and
polittcal rights guaranteed in the Bill of Rights, to exist
from the inception of mankind and it is an issue of
transcendental importance with intergenerational
implications.1âwphi1 Such right carries with it the
correlative duty to refrain from impairing the
environment.14
On the novel element in the class suit filed by the
petitioners minors in Oposa, this Court ruled that not
only do ordinary citizens have legal standing to sue for
the enforcement of environmental rights, they can do so
in representation of their own and future generations.
Thus:
Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for
others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in
behalf of the succeeding generations can only be based
on the concept of intergenerational responsibility insofar
as the right to a balanced and healthful ecology is
concerned. Such a right, as hereinafter expounded,
considers the "rhythm and harmony of nature." Nature
means the created world in its entirety. Such rhythm and
harmony indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land,
waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration,
development and utilization be equitably accessible to
the present a:: well as future generations. Needless to
say, every generation has a responsibility to the next to
preserve that rhythm and harmony for the full
1:njoyment of a balanced and healthful ecology. Put a
little differently, the minors' assertion of their right to a
sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection
of that right for the generations to come.15 (Emphasis
supplied.)
The liberalization of standing first enunciated in Oposa,
insofar as it refers to minors and generations yet unborn,
is now enshrined in the Rules which allows the filing of
a citizen suit in environmental cases. The provision on
citizen suits in the Rules "collapses the traditional rule
on personal and direct interest, on the principle that
humans are stewards of nature."16
Having settled the issue of locus standi, we shall address
the more fundamental question of whether this Court has
jurisdiction over the US respondents who did not submit
any pleading or manifestation in this case.
The immunity of the State from suit, known also as the
doctrine of sovereign immunity or non-suability of the
State,17 is expressly provided in Article XVI of the 1987
Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto,18 we
discussed the principle of state immunity from suit, as
follows:
The rule that a state may not be sued without its consent,
now · expressed in Article XVI, Section 3, of the 1987
Constitution, is one of the generally accepted principles
of international law that we have adopted as part of the
law of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound
by the generally accepted principles of international law
under the doctrine of incorporation. Under this doctrine,
as accepted by the majority of states, such principles are
deemed incorporated in the law of every civilized state
as a condition and consequence of its membership in the
society of nations. Upon its admission to such society,
the state is automatically obligated to comply with these
principles in its relations with other states.
As applied to the local state, the doctrine of state
immunity is based on the justification given by Justice
Holmes that ''there can be no legal right against the
authority which makes the law on which the right
depends." [Kawanakoa v. Polybank, 205 U.S. 349]
There are other practical reasons for the enforcement of
the doctrine. In the case of the foreign state sought to be
impleaded in the local jurisdiction, the added inhibition
is expressed in the maxim par in parem, non habet
imperium. All states are sovereign equals and cannot
assert jurisdiction over one another. A contrary
disposition would, in the language of a celebrated case,
"unduly vex the peace of nations." [De Haber v. Queen
of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against
the state without its consent, it is also applicable to
complaints filed against officials of the state for acts
allegedly performed by them in the discharge of their
duties. The rule is that if the judgment against such
officials will require the state itself to perform an
affirmative act to satisfy the same,. such as the
appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as
against the state itself although it has not been formally
impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In
such a situation, the state may move to dismiss the
comp.taint on the ground that it has been filed without its
consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is
expressed in the Eleventh Amendment which reads:
13
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals, 20 we further
expounded on the immunity of foreign states from the
jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a
foreign state is a long-standing rule of customary
international law then closely identified with the
personal immunity of a foreign sovereign from suit and,
with the emergence of democratic states, made to attach
not just to the person of the head of state, or his
representative, but also distinctly to the state itself in its
sovereign capacity. If the acts giving rise to a suit arc
those of a foreign government done by its foreign agent,
although not necessarily a diplomatic personage, but
acting in his official capacity, the complaint could be
barred by the immunity of the foreign sovereign from
suit without its consent. Suing a representative of a state
is believed to be, in effect, suing the state itself. The
proscription is not accorded for the benefit of an
individual but for the State, in whose service he is, under
the maxim -par in parem, non habet imperium -that all
states are soverr~ign equals and cannot assert
jurisdiction over one another. The implication, in broad
terms, is that if the judgment against an official would
rec 1uire the state itself to perform an affirmative act to
satisfy the award, such as the appropriation of the
amount needed to pay the damages decreed against him,
the suit must be regarded as being against the state itself,
although it has not been formally
impleaded.21 (Emphasis supplied.)
In the same case we also mentioned that in the case of
diplomatic immunity, the privilege is not an immunity
from the observance of the law of the territorial
sovereign or from ensuing legal liability; it is, rather, an
immunity from the exercise of territorial jurisdiction. 22
In United States of America v. Judge Guinto,23 one of the
consolidated cases therein involved a Filipino employed
at Clark Air Base who was arrested following a buy-bust
operation conducted by two officers of the US Air Force,
and was eventually dismissed from his employment
when he was charged in court for violation of R.A. No.
6425. In a complaint for damages filed by the said
employee against the military officers, the latter moved
to dismiss the case on the ground that the suit was
against the US Government which had not given its
consent. The RTC denied the motion but on a petition
for certiorari and prohibition filed before this Court, we
reversed the RTC and dismissed the complaint. We held
that petitioners US military officers were acting in the
exercise of their official functions when they conducted
the buy-bust operation against the complainant and
thereafter testified against him at his trial. It follows that
for discharging their duties as agents of the United
States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its
consent to be sued.
This traditional rule of State immunity which exempts a
State from being sued in the courts of another State
without the former's consent or waiver has evolved into a
restrictive doctrine which distinguishes sovereign and
governmental acts (Jure imperil") from private,
commercial and proprietary acts (Jure gestionis). Under
the restrictive rule of State immunity, State immunity
extends only to acts Jure imperii. The restrictive
application of State immunity is proper only when the
proceedings arise out of commercial transactions of the
foreign sovereign, its commercial activities or economic
affairs.24
In Shauf v. Court of Appeals,25 we discussed the
limitations of the State immunity principle, thus:
It is a different matter where the public official is made
to account in his capacity as such for acts contrary to law
and injurious to the rights of plaintiff. As was clearly set
forth by JustiGe Zaldivar in Director of the Bureau of
Telecommunications, et al. vs. Aligaen, etc., et al. :
"Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or
officers are not acts of the State, and an action against
the officials or officers by one whose rights have been
invaded or violated by such acts, for the protection of his
rights, is not a suit against the State within the rule of
immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a
State officer or the director of a State department on the
ground that, while claiming to act for the State, he
violates or invades the personal and property rights of
the plaintiff, under an unconstitutional act or under an
assumption of authority which he does not have, is not a
suit against the State within the constitutional provision
that the State may not be sued without its consent." The
rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for
perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter. They
state that the doctrine of immunity from suit will not
apply and may not be invoked where the public official
is being sued in his private and personal capacity as an
ordinary citizen. The cloak of protection afforded the
officers and agents of the government is removed the
moment they are sued in their individual capacity. This
situation usually arises where the public official acts
without authority or in excess of the powers vested in
him. It is a well-settled principle of law that a public
official may be liable in his personal private capacity for
whatever damage he may have caused by his act done
with malice and in bad faith, or beyond the scope of his
authority or jurisdiction.26 (Emphasis supplied.) In this
case, the US respondents were sued in their official
capacity as commanding officers of the US Navy who
had control and supervision over the USS Guardian and
its crew. The alleged act or omission resulting in the
unfortunate grounding of the USS Guardian on the
TRNP was committed while they we:re performing
official military duties. Considering that the satisfaction
of a judgment against said officials will require remedial
actions and appropriation of funds by the US
government, the suit is deemed to be one against the US
14
itself. The principle of State immunity therefore bars the
exercise of jurisdiction by this Court over the persons of
respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice
Antonio T. Carpio took the position that the conduct of
the US in this case, when its warship entered a restricted
area in violation of R.A. No. 10067 and caused damage
to the TRNP reef system, brings the matter within the
ambit of Article 31 of the United Nations Convention on
the Law of the Sea (UNCLOS). He explained that while
historically, warships enjoy sovereign immunity from
suit as extensions of their flag State, Art. 31 of the
UNCLOS creates an exception to this rule in cases
where they fail to comply with the rules and regulations
of the coastal State regarding passage through the latter's
internal waters and the territorial sea.
According to Justice Carpio, although the US to date has
not ratified the UNCLOS, as a matter of long-standing
policy the US considers itself bound by customary
international rules on the "traditional uses of the oceans"
as codified in UNCLOS, as can be gleaned from
previous declarations by former Presidents Reagan and
Clinton, and the US judiciary in the case of United States
v. Royal Caribbean Cruise Lines, Ltd.27
The international law of the sea is generally defined as
"a body of treaty rules arid customary norms governing
the uses of the sea, the exploitation of its resources, and
the exercise of jurisdiction over maritime regimes. It is a
branch of public international law, regulating the
relations of states with respect to the uses of the
oceans."28 The UNCLOS is a multilateral treaty which
was opened for signature on December 10, 1982 at
Montego Bay, Jamaica. It was ratified by the Philippines
in 1984 but came into force on November 16, 1994 upon
the submission of the 60th ratification.
The UNCLOS is a product of international negotiation
that seeks to balance State sovereignty (mare clausum)
and the principle of freedom of the high seas (mare
liberum).29 The freedom to use the world's marine waters
is one of the oldest customary principles of international
law.30 The UNCLOS gives to the coastal State sovereign
rights in varying degrees over the different zones of the
sea which are: 1) internal waters, 2) territorial sea, 3)
contiguous zone, 4) exclusive economic zone, and 5) the
high seas. It also gives coastal States more or less
jurisdiction over foreign vessels depending on where the
vessel is located.31
Insofar as the internal waters and territorial sea is
concerned, the Coastal State exercises sovereignty,
subject to the UNCLOS and other rules of international
law. Such sovereignty extends to the air space over the
territorial sea as well as to its bed and subsoil. 32
In the case of warships,33 as pointed out by Justice
Carpio, they continue to enjoy sovereign immunity
subject to the following exceptions:
Article 30
Non-compliance by warships with the laws and
regulations of the coastal State
If any warship does not comply with the laws and
regulations of the coastal State concerning passage
through the territorial sea and disregards any request for
compliance therewith which is made to it, the coastal
State may require it to leave the territorial sea
immediately.
Article 31
Responsibility of the flag State for damage caused by a
warship
or other government ship operated for non-commercial
purposes
The flag State shall bear international responsibility for
any loss or damage to the coastal State resulting from the
non-compliance by a warship or other government ship
operated for non-commercial purposes with the laws and
regulations of the coastal State concerning passage
through the territorial sea or with the provisions of this
Convention or other rules of international law.
Article 32
Immunities of warships and other government ships
operated for non-commercial purposes
With such exceptions as are contained in subsection A
and in articles 30 and 31, nothing in this Convention
affects the immunities of warships and other government
ships operated for non-commercial purposes. (Emphasis
supplied.) A foreign warship's unauthorized entry into
our internal waters with resulting damage to marine
resources is one situation in which the above provisions
may apply. But what if the offending warship is a non-
party to the UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of nation states
are now members of UNCLOS, but despite this the US,
the world's leading maritime power, has not ratified it.
While the Reagan administration was instrumental in
UNCLOS' negotiation and drafting, the U.S. delegation
ultimately voted against and refrained from signing it
due to concerns over deep seabed mining technology
transfer provisions contained in Part XI. In a remarkable,
multilateral effort to induce U.S. membership, the bulk
of UNCLOS member states cooperated over the
succeeding decade to revise the objection.able
provisions. The revisions satisfied the Clinton
administration, which signed the revised Part XI
implementing agreement in 1994. In the fall of 1994,
President Clinton transmitted UNCLOS and the Part XI
implementing agreement to the Senate requesting its
advice and consent. Despite consistent support from
President Clinton, each of his successors, and an
ideologically diverse array of stakeholders, the Senate
has since withheld the consent required for the President
to internationally bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations
Committee (SFRC) during the 108th and 110th
Congresses, its progress continues to be hamstrung by
significant pockets of political ambivalence over U.S.
participation in international institutions. Most recently,
111 th Congress SFRC Chairman Senator John Kerry
15
included "voting out" UNCLOS for full Senate
consideration among his highest priorities. This did not
occur, and no Senate action has been taken on UNCLOS
by the 112th Congress.34
Justice Carpio invited our attention to the policy
statement given by President Reagan on March 10, 1983
that the US will "recognize the rights of the other , states
in the waters off their coasts, as reflected in the
convention [UNCLOS], so long as the rights and
freedom of the United States and others under
international law are recognized by such coastal states",
and President Clinton's reiteration of the US policy "to
act in a manner consistent with its [UNCLOS]
provisions relating to traditional uses of the oceans and
to encourage other countries to do likewise." Since
Article 31 relates to the "traditional uses of the oceans,"
and "if under its policy, the US 'recognize[s] the rights of
the other states in the waters off their coasts,"' Justice
Carpio postulates that "there is more reason to expect it
to recognize the rights of other states in their internal
waters, such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio
emphasizes that "the US' refusal to join the UN CLOS
was centered on its disagreement with UN CLOS'
regime of deep seabed mining (Part XI) which considers
the oceans and deep seabed commonly owned by
mankind," pointing out that such "has nothing to do with
its [the US'] acceptance of customary international rules
on navigation."
It may be mentioned that even the US Navy Judge
Advocate General's Corps publicly endorses the
ratification of the UNCLOS, as shown by the following
statement posted on its official website:
The Convention is in the national interest of the United
States because it establishes stable maritime zones,
including a maximum outer limit for territorial seas;
codifies innocent passage, transit passage, and
archipelagic sea lanes passage rights; works against
"jurisdictiomtl creep" by preventing coastal nations from
expanding their own maritime zones; and reaffirms
sovereign immunity of warships, auxiliaries anJ
government aircraft.
xxxx
Economically, accession to the Convention would
support our national interests by enhancing the ability of
the US to assert its sovereign rights over the resources of
one of the largest continental shelves in the world.
Further, it is the Law of the Sea Convention that first
established the concept of a maritime Exclusive
Economic Zone out to 200 nautical miles, and
recognized the rights of coastal states to conserve and
manage the natural resources in this Zone.35
We fully concur with Justice Carpio's view that non-
membership in the UNCLOS does not mean that the US
will disregard the rights of the Philippines as a Coastal
State over its internal waters and territorial sea. We thus
expect the US to bear "international responsibility"
under Art. 31 in connection with the USS Guardian
grounding which adversely affected the Tubbataha reefs.
Indeed, it is difficult to imagine that our long-time ally
and trading partner, which has been actively supporting
the country's efforts to preserve our vital marine
resources, would shirk from its obligation to compensate
the damage caused by its warship while transiting our
internal waters. Much less can we comprehend a
Government exercising leadership in international
affairs, unwilling to comply with the UNCLOS directive
for all nations to cooperate in the global task to protect
and preserve the marine environment as provided in
Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as
appropriate, on a regional basis, directly or through
competent international organizations, in formulating
and elaborating international rules, standards and
recommended practices and procedures consistent with
this Convention, for the protection and preservation of
the marine environment, taking into account
characteristic regional features.
In fine, the relevance of UNCLOS provisions to the
present controversy is beyond dispute. Although the said
treaty upholds the immunity of warships from the
jurisdiction of Coastal States while navigating the.latter's
territorial sea, the flag States shall be required to leave
the territorial '::;ea immediately if they flout the laws and
regulations of the Coastal State, and they will be liable
for damages caused by their warships or any other
government vessel operated for non-commercial
purposes under Article 31.
Petitioners argue that there is a waiver of immunity from
suit found in the VFA. Likewise, they invoke federal
statutes in the US under which agencies of the US have
statutorily waived their immunity to any action. Even
under the common law tort claims, petitioners asseverate
that the US respondents are liable for negligence,
trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of
United States troops and personnel visiting the
Philippines to promote "common security interests"
between the US and the Philippines in the region. It
provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the
United States and the Philippine government in the
matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment,
materials and supplies.36 The invocation of US federal
tort laws and even common law is thus improper
considering that it is the VF A which governs disputes
involving US military ships and crew navigating
Philippine waters in pursuance of the objectives of the
agreement.
As it is, the waiver of State immunity under the VF A
pertains only to criminal jurisdiction and not to special
civil actions such as the present petition for issuance of a
writ of Kalikasan. In fact, it can be inferred from Section
17, Rule 7 of the Rules that a criminal case against a
16
person charged with a violation of an environmental law
is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a
petition for the issuance of the writ of kalikasan shall not
preclude the filing of separate civil, criminal or
administrative actions.
In any case, it is our considered view that a ruling on the
application or non-application of criminal jurisdiction
provisions of the VF A to US personnel who may be
found responsible for the grounding of the USS
Guardian, would be premature and beyond the province
of a petition for a writ of Kalikasan. We also find it
unnecessary at this point to determine whether such
waiver of State immunity is indeed absolute. In the same
vein, we cannot grant damages which have resulted from
the violation of environmental laws. The Rules allows
the recovery of damages, including the collection of
administrative fines under R.A. No. 10067, in a separate
civil suit or that deemed instituted with the criminal
action charging the same violation of an environmental
law.37
Section 15, Rule 7 enumerates the reliefs which may be
granted in a petition for issuance of a writ of Kalikasan,
to wit:
SEC. 15. Judgment.-Within sixty (60) days from the
time the petition is submitted for decision, the court shall
render judgment granting or denying the privilege of the
writ of kalikasan.
The reliefs that may be granted under the writ are the
following:
(a) Directing respondent to permanently cease
and desist from committing acts or neglecting
the performance of a duty in violation of
environmental laws resulting in environmental
destruction or damage;
(b) Directing the respondent public official,
govemment agency, private person or entity to
protect, preserve, rehabilitate or restore the
environment;
(c) Directing the respondent public official,
government agency, private person or entity to
monitor strict compliance with the decision and
orders of the court;
(d) Directing the respondent public official,
government agency, or private person or entity
to make periodic reports on the execution of the
final judgment; and
(e) Such other reliefs which relate to the right of
the people to a balanced and healthful ecology or
to the protection, preservation, rehabilitation or
restoration of the environment, except the award
of damages to individual petitioners. (Emphasis
supplied.)
We agree with respondents (Philippine officials) in
asserting that this petition has become moot in the sense
that the salvage operation sought to be enjoined or
restrained had already been accomplished when
petitioners sought recourse from this Court. But insofar
as the directives to Philippine respondents to protect and
rehabilitate the coral reef stn icture and marine habitat
adversely affected by the grounding incident are
concerned, petitioners are entitled to these reliefs
notwithstanding the completion of the removal of the
USS Guardian from the coral reef. However, we are
mindful of the fact that the US and Philippine
governments both expressed readiness to negotiate and
discuss the matter of compensation for the damage
caused by the USS Guardian. The US Embassy has also
declared it is closely coordinating with local scientists
and experts in assessing the extent of the damage and
appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases
is not proscribed by the Rules. As can be gleaned from
the following provisions, mediation and settlement are
available for the consideration of the parties, and which
dispute resolution methods are encouraged by the court,
to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-
trial conference, the court shall inquire from the parties
if they have settled the dispute; otherwise, the court shall
immediately refer the parties or their counsel, if
authorized by their clients, to the Philippine Mediation
Center (PMC) unit for purposes of mediation. If not
available, the court shall refer the case to the clerk of
court or legal researcher for mediation.
Mediation must be conducted within a non-extendible
period of thirty (30) days from receipt of notice of
referral to mediation.
The mediation report must be submitted within ten (10)
days from the expiration of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the
court will schedule the continuance of the pre-trial.
Before the scheduled date of continuance, the court may
refer the case to the branch clerk of court for a
preliminary conference for the following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge
shall put the parties and their counsels under oath, and
they shall remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties
to arrive at a settlement of the dispute. The judge may
issue a consent decree approving the agreement between
the parties in accordance with law, morals, public order
17
and public policy to protect the right of the people to a
balanced and healthful ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to
make the parties to agree to compromise or settle in
accordance with law at any stage of the proceedings
before rendition of judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in
2009 when a guided-missile cruiser, the USS Port Royal,
ran aground about half a mile off the Honolulu Airport
Reef Runway and remained stuck for four days. After
spending $6.5 million restoring the coral reef, the US
government was reported to have paid the State of
Hawaii $8.5 million in settlement over coral reef damage
caused by the grounding.38
To underscore that the US government is prepared to pay
appropriate compensation for the damage caused by the
USS Guardian grounding, the US Embassy in the
Philippines has announced the formation of a US
interdisciplinary scientific team which will "initiate
discussions with the Government of the Philippines to
review coral reef rehabilitation options in Tubbataha,
based on assessments by Philippine-based marine
scientists." The US team intends to "help assess damage
and remediation options, in coordination with the
Tubbataha Management Office, appropriate Philippine
government entities, non-governmental organizations,
and scientific experts from Philippine universities." 39
A rehabilitation or restoration program to be
implemented at the cost of the violator is also a major
relief that may be obtained under a judgment rendered in
a citizens' suit under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the
court may grant to the plaintiff proper reliefs which shall
include the protection, preservation or rehabilitation of
the environment and the payment of attorney's fees, costs
of suit and other litigation expenses. It may also require
the violator to submit a program of rehabilitation or
restoration of the environment, the costs of which shall
be borne by the violator, or to contribute to a special
trust fund for that purpose subject to the control of the
court.1âwphi1
In the light of the foregoing, the Court defers to the
Executive Branch on the matter of compensation and
rehabilitation measures through diplomatic channels.
Resolution of these issues impinges on our relations with
another State in the context of common security interests
under the VFA. It is settled that "[t]he conduct of the
foreign relations of our government is committed by the
Constitution to the executive and legislative-"the
political" --departments of the government, and the
propriety of what may be done in the exercise of this
political power is not subject to judicial inquiry or
decision."40
On the other hand, we cannot grant the additional reliefs
prayed for in the petition to order a review of the VFA
and to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v.
Exec. Sec. Zamora,41 the VFA was duly concurred in by
the Philippine Senate and has been recognized as a treaty
by the United States as attested and certified by the duly
authorized representative of the United States
government. The VF A being a valid and binding
agreement, the parties are required as a matter of
international law to abide by its terms and
provisions.42 The present petition under the Rules is not
the proper remedy to assail the constitutionality of its
provisions. WHEREFORE, the petition for the issuance
of the privilege of the Writ of Kalikasan is hereby
DENIED.
No pronouncement as to costs.
SO ORDERED.
CONCURRING OPINION
SERENO, CJ:
I concur.
Sovereign immunity serves as a bar for the foreign
sovereign to be subjected to the trial process. Supported
both by local jurisprudence, as well s international law
(which forms part of the Philippine legal structure), the
doctrine should not be reversed in this particular case.
SOVEREIGN IMMUNITY IN PHILIPPINE LAW
Sovereign immunity in Philippine law has been lengthily
discussed by the Court in China National Machinery &
Equipment Corp. v. Hon. Santamaria in the following
manner:
This Court explained the doctrine of sovereign immunity
in Holy See v. Rosario, to wit:
There are two conflicting concepts of sovereign
immunity, each widely held and firmly established.
According to the classical or absolute theory, a sovereign
cannot, without its consent, be made a respondent in the
courts of another sovereign. According to the newer or
restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jurc
imperii of a state, but not with regard to private acts or
acts jure gestionis.
xxxx
The restrictive theory came about because of the entry of
sovereign states into purely commercial activities
remotely connected with the discharge of governmental
functions. This is particularly true with respect to the
Communist states which took control of nationalized
business activities and international trading.
18
In JUSMAG v. National Labor Relations Commission,
this Court affirmed the Philippines' adherence to the
restrictive theory as follows:
The doctrine of state immunity from suit has undergone
further metamorphosis. The view evolved that the
existence of a contract docs not, per se, mean that
sovereign states may, at all times, be sued in local comis.
The complexity of relationships between sovereign
states, brought about by their increasing commercial
activities, mothered a more restrictive application of the
doctrine.
xxxx
As it stands now, the application of the doctrine of
immunity from suit has been restricted to sovereign or
governmental activities (jure imperii). The mantle of
state immunity cannot be extended to commercial,
private and proprietary acts Uure gestionis ).
Since the Philippines adheres to the restrictive theory, it
is crucial to ascertain the legal nature of the act involved
- whether the entity claiming immunity performs
governmental, as opposed to proprietary, functions. As
held in United States of America v. Ruiz –
The restrictive application of State immunity is proper
only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial
activities or economic affairs. Stated differently, a State
may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given
its consent to b e sued only when it enters into business
contracts. It does not apply where the contract relates to
the exercise of its soverdgn functions.1 (Emphases
supplied. Citations omitted)
From the Philippine perspective, what determines its
ability to impose its law upon the foreign entity would
be the act of the foreign entity - on whether the act is an
aspect of its sovereign function or a private act.
In this case, the two Naval Officers were acting pursuant
to their function as the commanding officers of a
warship, traversing Philippine waters under the authority
of the Visiting Forces Agreement (VFA). While the
events beg the question of what the warship was doing in
that area, when it should have been headed towards
Indonesia, its presence in Philippine waters is not wholly
unexplainable. The VFA is a treaty, and it has been
affirmed as valid by this Court in Bayan v. Zamora,2 and
affirmed in Lim v. Executive Secretary3 and Nicolas v.
Romulo.4 It has, in the past, been used to justify the
presence of United States Armed Forces in the
Philippines. In this respect therefore, acts done pursuant
to the VF A take the nature of governmental acts, since
both the United States and Philippine governments
recognize the VFA as a treaty with corresponding
obligations, and the presence of these two Naval Officers
and the warship in Philippine waters fell under this legal
regime.
From this, the applicability of sovereign immunity
cannot be denied as to the presence of the warship and
its officers in Pbilippine waters. This does not, however,
put an end to the discussion, because even if immunity is
applicable to their presence, the specific act of hitting the
Tubbataha Reef and causing damage thereto is a
presumably tortuous act. Can these kinds of acts also be
covered by the principle of sovereign immunity?
TORT EXCEPTION
Under the regime of international law, there is an added
dimension to sovereign immunity exceptions: the tort
exception. Whether this has.evolved into a customary
norm is still debatable; what is important to emphasize is
that while some states have enacted legislation to allow
the piercing of sovereign immunity in tortuous actions,
the Foreign Sovereign Immunities Act of 1976 of the
United States (FSIA)5 contains such privilege.
Specifically, the FSIA contains exceptions for (I)
waiver;6 (2) commercial activity;7 (3) expropriation;8 (4)
property rights acquired through succession or
donation;9 (5) damages for personal injury or death or
damage to or loss f property;10 (6) enforcement of an
arbitration agreement;11 (7) torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of
material support to such an act, if the state sponsors
terrorism;12 and (8) maritime lien in a suit for admiralty
based on commercial activity.13
Any claim under the FSIA goes through a hierarchical
process between the diplomatic channels of the United
States and the forum state. However, by explicitly
including the tort exception in its local legislation under
the 4th exception discussed above - with due
consideration to the heavy requirements for any doctrine
to attain customary status - it becomes plausible that the
exception can be applied to the United States, if not
through customary international law, then by reason of
acquiescence or estoppel.
As explained by Jasper Finke,
x x x x the current state practice may not support a rule
of customary international law according to which states
must deny sovereign immunity in case of to1iious acts
committed by another country in the forum state. Even
though such an obligation is included in the ECSI and
tLc UNCJIS, a considerable number of states do not
apply this excep1 ion. But this does not answer the
question whether states arc prohibited from doing so.
Section 1605 of the FSIA, for example, denies immunity
in cases 'in which money damages arc sought ... for
personal injury or death, or damage to or loss of
property, occurring in the United States and caused by
the tortious act or omission .of that foreign state'. If
sovereign immunity is the default rule and all exceptions
must reflect customary international law, and if the tort
exception has not yet evolved into custom, then states
such as the US, UK, Canada, and Australia that have
included the tort exception in their national immunity
laws automatically violate international law - a
conclusion which no commentator so far has suggested.
But if states that enact this exception as law do not
violate international law, why then should a state do so if
its courts apply this exception not on the basis of
national law, but on the basis of how they construe and
19
interpret the doctrine of sovereign immunity under
international law?14 (Emphasis supplied)
What Finke suggests is that a local court need not find
the tort exception concept in its national law if it can
interpret the doctrine from its understanding of
international law. Can the Philippines then interpret the
exception as being part of its acceptance of "general
principles of international law" under the Constitution? 15
SOVEREIGH IMMUNITY AS A POLITICAL
DECISION
In Vinuya v. Romulo, we stated that "the question
whether the Philippine government should espouse
claims of its nationals against a foreign government is a
foreign relations matter, the authority for which is
demonstrably committed by our Constitution not to the
courts but to the political branches."16 Immunity then,
unlike in other jurisdictions, is determined not by the
courts of law but by the executive branches. Indeed, this
was extensively discussed in Chief Justice Puno's
concurring opinion in Liang v. People, to wit:
Petitioner's argument that a determination by the
Department of Foreign Affairs that he is entitled to
diplomatic immunity is a political question binding on
the courts, is anchored on the ruling enunciated in the
case of WHO, et al. vs. Aquino, et al., viz:
"It is a recognized principle of international law and
under our system of separation of powers that diplomatic
immunity is essentially a political question and courts
should refuse to look beyond a determination by the
executive branch of the government, and where the plea
of diplomatic immunity is recognized and affirmed by
the executive branch of the government as in the case at
bar, it is then the duty of the courts to accept the claim of
immunity upon appropriate suggestion by the principal
law officer of the government, the Solicitor General in
this case, or other officer acting under his direction.
Hence, in adherence to the settled principle that courts
may not so exercise their jurisdiction by seizure and
detention of property, as to embarrass the executive arm
of the government in conducting foreign relations, it is
accepted doctrine that in such cases the judicial
department of the government follows the action of the
political branch and will not embarrass the latter by
assuming an antagonistic jurisdiction."
This ruling was reiterated in the subsequent cases of
International Catholic Migration Commission vs.
Calleja; The Holy See vs. Rosario, Jr; Lasco vs. UN; and
DF A vs. NLRC.
The case of WHO vs. Aquino involved the search and
seizure of personal effects of petitioner Leonce
Verstuyft, an official of the WHO. Verstyft was certified
to be entitled to diplomatic immunity pursuant to the
Host Agreement executed between the Philippines and
the WHO. ICMC vs. Calleja concerned a petition for
certification election filed against ICMC and IRRI. As
international organizations, ICMC and IRRI were
declared to possess diplomatic immunity. It was held
that they are not subject to local jurisdictions. It was
ruled that the exercise of jurisdiction by the Department
of Labor over the case would defeat the very purpose of
immunity, which is to shield the affairs of international
organizations from political pressure or control by the
host country and to ensure the unhampered performance
of their functions.
In Holy See v. Rosario, Jr. involved an action for
annulment of sale of land against the Holy See, as
represented by the Papal Nuncio. The Court upheld the
petitioner's defense of sovereign immunity. It ruled that
where a diplomatic envoy is granted immunity from the
civil and administrative jurisdiction of the receiving state
over any real action relating to private immovable
property situated in the territory of the receiving state,
which the envoy holds on behalf of the sending state for
the purposes of the mission, with all the more reason
should immunity be recognized as regards the sovereign
itself, which in that case is the Holy See.
In Lasco vs. United Nations, the United Nations
Revolving Fund for Natural Resources Exploration was
sued before the NLRC for illegal dismissal. The Court
again upheld the doctrine of diplomatic immunity
invoked by the Fund.
Finally, DF A v. NLRC involved an illegal dismissal
case filed agains1 the Asian Development Bank.
Pursuant to its Charter and the Headq iatiers Agreement
the diplomatic immunity of the Asian Development
Bank was recognized by the Court.
xxxx
Clearly, the most important immunity to an international
official, in the discharge of his international functions, is
immunity from local jurisdiction. There is no argument
in doctrine or practice with the principle that an
international official is independent of the jurisdiction of
the local authorities for his official acts. Those acts are
not his, but arc imputed to the organization, and without
waiver the local courts cannot hold him liable for them.
In strict law, ·it would seem that even the organization
itself could have no right to waive an official's immunity
for his official acts. This permits local authorities to
assume jurisdiction over and individual for an act which
is not, in the wider sense of the term, his act at all. It is
the organization itself, as a juristic person, which should
waive its own immunity and appear in court, not the
individual, except insofar as he appears in the name of
the organization. Provisions for immunity from
jurisdiction for official acts appear, aside from the
aforementioned treatises, in the constitution of most
modern international organizations. The acceptance of
the principle is sufficiently widespread to be regarded as
declaratory of international law.17 (Emphasis supplied)
In this view, the prudent interpretation of the tort
exception would be to allow the executive branch to first
determine whether diplomatic or sovereign immunity
can be invoked by the foreign officials involved. If it can
be invoked, then the next analysis should be whether this
invoked immunity is absolute, as in the treatment of
diplomatic envoys. If it is not absolute, then and only
then can the Court weave the t01i exception into the law
of sovereign immunity and thus attain jurisdiction over
the Naval Officers involved. This is important because
20
the practice has been to afford the foreign entity absolute
immunity, but withdraw the same from its personnel
when they commit private acts.
SOVEREIGN IMMUNITY UNDER
INTERNATIONAL LAW
The basic concept of state immunity is that no state may
be subjected to the jurisdiction of another state without
its consent.18 According to Professor Ian Brownlie, it is
"a procedural bar (not a substantive defence) based on
the status and functions of the state or official in
question."19 Furthermore, its applicability depends on the
law and procedural rules of the forum state. 20 In the
recent judgment of the International Court of Justice
(ICJ) in the Jurisdictional Immunities of the State
(Germany v. Italy: Greece Intervening) case, 21 the
doctrine of sovereign immunity was applied in the
following context:
In 1995, successors in title of the victims of the Distomo
massacre, committed by the German armed forces in a
Greek village in June 1944, brought proceedings for
compensation against Germany before the Greek courts.
The Greek court ordered Germany to pay compensation
to the claimants. The appeal by Germany against that
judgment was dismissed by a decision of the Hellenic
Supreme Court, which ordered Germany to pay the costs
of the appeal proceedings. The successful Greek
claimants under the first-instance and Supreme Court
judgments applied to the Italian courts for exequatur of
those judgments, so as to be able to have them enforced
in Italy. This was allowed by the Florence Court of
Appeal and confirmed by the Italian Court of Cassation.
Germany raised the dispute before the ICJ, claiming
these decisions constituted violations of its jurisdictional
immunity.
The ICJ analyzed the case from the vantage point of
immunity, such that the jurisdictional immunity of states
refers primarily to an immunity from the trial process
and is thus preliminary in character, as stated in the
following manner:
At the outset, however, the Court must observe that the
proposition that the availability of immunity will be to
some extent dependent upon the gravity of the unlawful
act presents a logical problem. Immunity from
jurisdiction is an immunity not merely from being
subjected to an adverse judgment but from being
subjected to the trial process. It is, therefore, necessarily
preliminary in nature. Consequently, a national court is
required to determine whether or not a foreign State is
entitled to immunity as a matter of international law
before it can hear the merits of the case brought before it
and before the facts have been established. If immunity
were to be dependent upon the State actually having
committed a serious violation of international human
rights law or the law of armed conflict, then it would
become necessary for the natiomJ court to hold an
enquiry into the merits in order to determine whether it
had jurisdiction. If, on the other hand, the mere
allegation that the State had committed such wrongful
acts were to be sufficient to deprive the State of its
entitlement to immunity, immunity could, in effect be
negated simply by skilful construction of the
claim.22 (Emphasis supplied)
The ICJ continued dissecting national law in order to
determine whether jurisdictional immunity could be
defeated by reason of serious violations of human rights
law or the law of armed conflict. In this, the ICJ clearly
saw that there was no customary international law norm
that led to the defeat of immunity by reason of these
violations, including the tort exception, viz:
Apart from the decisions of the Italian courts which are
the subject of the present proceedings, there is almost no
State practice which might be considered to support the
proposition that a State is deprived of its entitlement to
immunity in such a case. Although the Hellenic Supreme
Court in the Distomo case adopted a form of that
proposition, the Special Supreme Court in Margellos
repudiated that approach two years later. As the Court
has noted in paragraph 76 above, under Greek law it is
the stance adopted in Margellos which must be followed
in later cases unless the Greek courts find that there has
been a change in customary international law since 2002,
which they have not done. As with the territorial tort
principle, the Court considers that Greek practice, taken
as a whole, tends to deny that the proposition advanced
by Italy has become part of customary international law.
In addition, there is a substantial body of State practice
from other countries which demonstrates that customary
international law does not treat a State's entitlement to
immunity as dependent upon the gravity of the act of
which it is accused or the peremptory nature of the rule
which it is alleged to have violated.23 (Emphasis
supplied)
As things stand in the international sphere, the immunity
of the state (and by extension, its agents, in the
performance of their governmental functions Jure
imperii) must stand against even serious violations of
international law, including breaches of international
environmental law (which is an aspect of human rights
law as well). The ICJ concluded that
x x x [U]nder customary international law as it presently
stands, a State is not deprived of immunity by reason of
the fact that it is accused of serious violations of
international human rights law or the international law of
armed conflict. In reaching that conclusion, the Court
must emphasize that it is addressing only the immunity
of the State itself from the jurisdiction of the courts of
other States; the question of whether, and if so to what
extent, immunity might apply in criminal proceedings
against an official present case.24
This does not mean that the act of the state is to be
considered lawful. However, this also does not mean that
state immunity is waived in the context of an
international breach of even ajus cogens norm, as
explained in this manner:
The rules of State immunity are procedural in character
and are confined to determining whether or not the
courts of one State may exercise jurisdiction in respect
of another State. They do not bear upon the question
whether or not the conduct in respect of which the
21
proceedings are brought was lawful or unlawful. That is
why the application of the contemporary law of State
immunity to proceedings concerning events which
occuned in 1943-1945 does not infringe the principle
that law should not be applied retrospectively to
determine matters of legality and responsibility (as the
Court has explained in paragraph 58 above). For the
same reason, recognizing the immunity of a foreign State
in accordance with customary international law does not
amount to recofnizing as lawful a situation created by
the breach of a jus co gens rule, or rendering aid and
assistance in maintaining that situation, and so cannot
contravene the principle in Article 41 of the International
Law Commiss'on's Articles on State
Responsibility.25 CONCLUSION OF
JURISDICTIONAL ARGUMENTS AND IMMUNITY
What the Court is left to work with is a process by which
jurisdiction and immunity can be determined by
answering several questions, summated thusly:
1. Is the act of the foreign national or entity an
act Jure imperii, such that it can be considered
an act of state entitled to immunity, or an actjure
gestionis, in which case it is to be considered a
private act?
2. In respect of the above question, has the
executive branch, in the exercise of its political
power, determined whether absolute diplomatic
immunity is applicable?
3. If it is an actjure imperii and thus entitled to
sovereign immunity, does an exception apply to
withdraw the immunity privilege of such acts?
In this case, it is apparent that the act of the US.S.
Guardian and its officers in entering Philippine waters is
allowed by the VF A, and as a treaty privilege should be
considered an act Jure imperii. lts deviation into the
waters of Tubbataha, and whether this can be considered
a private act; is a factual issue that should be determined
by the proper body. Indeed, while Philippine authorities
may not have authorized the deviation, if the United
States government affirms that it gave the Guardian
sufficient discretion to determine its course, then the act
is not necessarily robbed of its Jure imperii character and
is thus entitled to immunity. The course of action of the
Philippine government would be to engage in diplomatic
negotiations for potential treaty breach liability.
As of this moment, the executive branch has not made a
determination of the applicable immunity. No
correspondence has been sent to the Court as to the
issue. Thus, the Court must act in deference to the
executive prerogative to first make this determination
under the presumption of regularity of performance of
duties, before it can exercise its judicial power.
Finally, no exception exists in Philippine or international
law that would remove the immunity of the United
States in order to place it under the jurisdiction of
Philippine courts. The Writ of Kalikasan is a compulsory
writ, and its issuance initiates a legal process that would
circumvent the internationally established rules of
immunity. Should the Court issue the Writ, it could
possibly entail international responsibility for breaching
the jurisdictional immunity of a sovereign state.
I therefore vote to dismiss the Petition.
MARIA LOURDES P. A. SERENO
Chief Justice
CONCURRING OPINION
LEONEN, J.:
Prefatory
I agree that the petition should be dismissed primarily
because it is moot and academic.
The parties who brought this petition have no legal
standing. They also invoke the wrong remedy. In my
view, it is time to clearly unpack the rudiments of our
extraordinary procedures in environmental cases in order
to avoid their abuse. Abuse of our procedures contributes
to the debasement of the proper function of the remedies
and invites inordinate interference from this court from
what may be technical and political decisions that must
be made in a different forum. Our sympathy for
environmental concerns never justifies our conversion to
an environmental super body.
The writ of kalikasan is not an all-embracing legal
remedy to be wielded like a political tool.1âwphi1 It is
both an extraordinary and equitable remedy which
assists to prevent environmental catastrophes. It does not
replace other legal remedies similarly motivated by
concern for the environment and the community's
ecological welfare. Certainly, when the petition itself
alleges that remedial and preventive remedies have
occurred, the functions of the writ cease to exist. In case
of disagreement, parties need to exhaust the political and
administrative arena. Only whei: a concrete cause of
action arises out of facts that can be proven with
substantial evidence may the proper legal action be
entertained.
Citizen's suits are suits brought by parties suffering
direct and substantial injuries; although in the
environmental field, these injuries may be shared with
others. It is different from class suits brought as
representative suits under Oposa v. Factoran. 1 In my
view, there is need to review. this doctrine insofar as it
allows a nonrepresentative group to universally represent
a whole population as well as an unborn generation
binding them to causes of actions, arguments, and reliefs
which they did not choose. Generations yet unborn
suffer from the legal inability to assert against false or
unwanted representation.
Citizen's suits are procedural devices that allow a
genuine cause of action to be judicially considered in
spite of the social costs or negative externalities of such
initiatives. This should be clearly distinguished in our
rules and in jurisprudence from class suits that purport to
represent the whole population and unborn generations.
The former is in keeping with the required constitutional
protection for our people. The latter is dangerous and
22
should be used only in very extraordinary or rare
situations. It may be jurisprndentia;ly inappropriate.
In my view, decisions relating to environmental
concen1s should be more balanced. It must attend in a
more sober way to the required balance of all interests.
Hence, our rule with respect to standing should require
that parties bringing the suit are sufficiently and
substantially possessed of individual interest and
capability so that they can properly shape the issues
brought before this court. The capability of the parties to
bring suit can readily be seen through the allegations
made in their petition.
Our doctrine regarding sovereign immunity also needs to
be refined in the proper case with respect to its nature,
source, and its limitations.
The doctrine of sovereign immunity evolves out of the
theory and practice of sovere'ignty and the principle par
in parem non habet Jurisdictionem. Its particular
contours as an international norm have evolved far
beyond the form it took when the theory of absolute
sovereignty was current. Contemporarily, ·it is
understood as a basic right extended to states by other
states on the basis of respect for sovereignty and
independence.2 There appears to be a consensus among
states that sovereign immunity as a concept is legally
binding.3 However, there remains to be a lack of
international agreement as to how it is to be invoked and
the extent of immunity in some cases.4
This vagueness arises from the debate on which among
the sources of international law the doctrine of sovereign
immunity draws its binding authority and the content of
the doctrine given its source.
This doctrine of relative jurisdictional immunity
(sovereign immunity) of states and their agents becomes
binding in our jurisdiction as international law only
through Section 2 of Article II or Section 21 of Article
VII of the Constitution. Article XVII, Section 3 of the
Constitution is a limitation on suits against our state. It is
not the textual anchor for determining the extent of
jurisdicional immunities that should be accorded to other
states or their agents. International law may have
evolved further than the usual distinction between acta
Jure imperii and acta Jure gestionis. Indications of state
practice even of public respondents show that
jurisdictional immunity for foreign states may not apply
to certain violations of Jus cogens rules of international
customary law. There can be tort exemptions provided
by statute.and, therefore, the state practice of an agent's
sovereign being sued in our courts.
International law does not also prohibit legislation that
clarifies national policy and, therefore, our own
considerations of state practice in relation to the limits of
jurisdictional immunities for other sovereigns. Neither
does international law prohibit domestic courts from
shaping exceptions to jurisdictional immunity based
upon our reading of the Constitution as well as
international and municipal law.
I am of the view, therefore, that this case be dismissed
principally for its procedural infirmities. We should
reserve doctrinal exposition and declaration of the
content of jurisdictional immunities for other sovereigns
and their agents when the proper cases merit our
attention and not yet unduly limit such jurisprudence in
relation to the law of the sea, municipal torts, and
violations of international customary law of a jus cogens
character. The results in this case would have been
different if initiated with the proper remedy, by the
proper parties in the proper court.
I
Procedural antecedents
This court was asked to issue a writ of kalikasan with
temporary environmental protection order or TEPO
pursuant to Rule 7 of A.M. No. 09-6-8-SC, otherwise
known as the Rules of Procedure for Environmental
Cases. Petitioners seek an immediate order from this
court:
1) for respondents to cease and desist all
operations over the Guardian grounding
incident;
2) for the demarcation of the metes and bounds
of the damaged area, with an additional buffer
zone;
3) for respondents to stop all port calls and war
games under the Balikatan;
4) for respondents to assume responsibility for
prior and future uwironmental damage in general
and under the Visiting Forces Agreement
(VFA);
5) for the temporary definition of allowable
activities near or around the Tubbataha Reefs
[Natural] Park, but away from the damageq site
and the additional buffer zone;
6) for respondent Secretary of Foreign Affairs to
negotiate with the United States representatives
for an agreement on environmental guidelines
and accountability pursuant to the VFA;
7) for respondents and appropriate agencies to
commence administrative, civil, and criminal
proceedings against erring officers and
individuals;
8) for the declaration of exclusive criminal
jurisdiction of Philippine authorities over erring
USS Guardian personnel;
9) for respondents to pay just and reasonable
compensation in the settlement of all meritorious
claims for damages caused 1o the Tubbataha
Reefs;
10) for respondents to cooperate in securing the
attendance of witnesses and the collection and
production of evidence, including c bjects
com1ected with the offenses related to the
grounding of the Guardian;
23
 11) for respondents US officials and their
representatives to place a clcposit to the TRNP
Trust Fund, as defined in Section 17 of RA
10067, as a bona fide gesture towards full
reparations;
12) for respondents to undertake rehabilitation
measures for areas affected by the grounding of
the Guardian;
13) for respondents to . publish on a quarterly
basis the environmental damage assessment,
valuation, and valuation methods, in all stages of
negotiations to ensure transparency and
accountability;
14) for the convention of a multisectoral
teclmical working group that will provide
scientific and technical support to the Tubbataha
Protected Area Management Board (TPAMB);
15) for respondents Department of Foreign
Affairs, Department of National Defense, and
the Department of Environmental and Natural
Resources to review the ·VFA and the Mutual
Defense Treaty in light of the right to a balanced
and healthful ecology, and any violation related
thereto;
16) for the declaration of the grant of immunity
under Articles V and VI of the VFA as being
violative of equal protection and/or the
peremptory norm of nondiscrimination;
17) for permission to resort to continuing
discovery measures; and
18) for other. just and equitable environmenta:
rehabilitation measures and reliefs.5
Petitioners include representatives from people's
organizations, nongovernment organizations, accredited
public interest groups, environmental institutes,
government officials, and academicians.6 Respondents,
on the other hand, are the American commanding
officers of the USS Guardian and the Balikatan 2013
Exercises, incumbent Philippine government officials,
and Philippine military officers involved, by virtue of
their office, in issues arising out of the grounding of the
USS Guardian in Tubbataha Reefs and its subsequent
salvage.7
The USS Guardian is a fifth Avenger Class Mine
Countermeasures, United States Navy ship.8 The three
diplomatic notes issued by the Embassy of the United
States of America in the Philippines dated December 3,
2012,9 December 31, 2012,10 and January 14, 201311 all
sought clear.ance for the ship to "enter and exit the·
territorial waters of the Philippines and to arrive at the
port of Subic Bay for the purpose of routine ship
replenishment, maintenance, and crew libeiiy."12
Thus, on January 17, 2013, while en route to Makasaar,
Indonesia, the USS Guardian ran aground in the
Tubbataha Reefs' south atoll, approximately 80 miles
east-southeast of Palawan.13 In a statement issued on
January 25, 2013, US Ambassador to the Philippines
Harry K. Thomas expressed his regret over the incident,
recognizing the legitimate concerns over the damage
caused to the reef.14 On February 5, 2013, a joint
statement was issued by the Philippines and the United
States where the latter undertook to provide
compensation.15 On the same day, a salvage plan was
submitted by a Singaporean company contracted by the
US Navy to conduct the USS Guardian salvage
operations.16 The salvage operations were completed on
March 30, 2013.17
On April 17, 2013, petitioners filed the present petition
for writ of kalikasan with prayer for temporary
environmental protection order (TEPO).
Acting on petitioners' petition but without necessarily
giving due course, this court on May 8, 2013 issued a
resolution. The resolution a) required respondents,
except the President of the Republic of the Philippines,
to comment within ten (10) days from notice of the
resolution; and b) held in abeyance the issuance of a
TEPO.18
We note that on May 27, 2013, the Office of Legal
Affairs of the Depaiiment of Foreign Affairs sent a letter
to this court, requesting that the notice of this court's
resolution dated May 8, 2013 be returned, as it was not
an agent for the service of processes upon American
respondents.19
The pleadings presented the following issues: a) whether
petitioners have legal· standing to file a petition for writ
of kalikasan with prayer for temporary environmental
protection order (TEPO), and b) whether the doctrine of
sovereign immunity applies to foreign respondents.
Petitioners argued that they have locus standi.20 Having
categorized the petition as a citizen's suit, they alleged
that they are representing "others, including minors and
generations yet unborn" in asserting their constitutional
right to a balanced and healthful ecology.21
Petitioners cited this court's ruling in Oposa v. Factoran
that Article II, Section 16 of the 1987 Constitution vyas
immediately enforceable. The pronouncement was
anchored on the premise that the right to a balanced and
healthful ecology belonged "to a different category of
rights altogether for it concerns nothing less than self-
preservation and self-perpetuation."22 Petitioners also
alleged that the American respondents are not immune
from suit.23 Citing Nicolas v. Romulo,24 they argued that
Article V of the Visiting Forces Agreement or VFA,
which pertained to "Criminal Jurisdiction,"25 establishes
a waiver of the US military officers involved in the
incident's26 immunity from suit in light of their violation
of Republic Act 10067; or the Tubbataha Reefs Natural
Park (TRNP) Act of 2009,27 including its entry in the
area without prop·er permit.28 Also citing US cases New
York v. United States Army Corps of Engineers (E.D.N.
Y September 24, 2012) and Trudeau v. FTC (456 F3d
178, D.C. Cir. 2006), petitioners further argued that
existing US federal statutes clearly provide that
American government agencies have statutorily waived
their immunity from any equitable action involving
24
environmental damages.29 They referred to both
Resource Conservation and Recovery Act of 1976
(RCRA) and the Federal Tort Claims Act (FTCA) as
legal bases.30
Petitioners stated that RCRA waives sovereign immunity
in citizen's suits when a) there is a need to enforce a
permit, standard, or regulation; b) there is a need to abate
an imminent and substantial danger to health or the
environment; or c) the United States Environmental
Protection Agency is required to perform a
nondiscretionary duty.31
On the other hand, the FTCA provides that "the U.S.
Government is liable in tort in the same manner and to
the same extent as private individuals under like
circumstances [but only] if the laws of the state in which
the wrongful act occurred provide recovery in similar
situations involving private pai1ies."32
Petitioners also argued that the USS Guardian is liable in
rem33 to the Philippines for response costs and damages
resulting from the destruction, loss, and inju:y caused to
the Tubbataha Reefs.34 Aside from not having had prior
permit to enter the area, petitioners pointed out that the
American respondents had committed gross and
inexcusable negligence when it failed to utilize its
technical expertise and equipment in preventing the
incident.35 It is their position that this necessarily
rendered sovereign immunity inapplicabfo to American
respondents, even if they were acting within the scope of
their authority, office, or employment.36
II
The parties do not have legal standing
Petitioners brought this case as a citizen's suit under the
Tubbataha Reefs Natural Park Act of 2009, in
conjunction with the Rules of Procedure for
Environmental Cases.37
Section 37 of the Tubbataha Reefs Natural Park Act of
2009 allows any citizen to file a Civil, criminal, or
administrative case against:
(a) Any person who violates or fails to comply
with the provisions of this Act its implementing
rules and regulations; or
(b) Those mandated to implement and enforce
the provisions of this Act with respect to orders,
rules and regulations issued inconsistent with
this Act; and/or
(c) Any public officer who wilfully or grossly
neglects the performance of an act, specifically
enjoined as a duty by this Act or its
implementing rules and regulations; or abuses
his authority in the performance of his duty; or,
in any manner improperly performs his duties
under this act or its implementing rules and
regulations: Provided, however, That, no suit
can be filed until after a thirty (30)-day notice
has been given to the public officer and the
alleged violator concerned and no appropriate
action has been taken thereon. The court shall
exempt such action from the'payment of filing
fees, upon prima facie showing of the non-
enforcement or violations complained of and
exempt the plaintiff from the filing of an
injunction bond for the issuance of preliminary
injunction. In the event that the citizen should
prevail, the court shall award reasonable
attorney's fees, moral damages and litigation
costs as appropriate.
While the Tubbataha Reefs Natural Park Act enumerates
causes of action available against duty-bearers, it does
not specifically describe the parties who may file a case.
The "environmental" nature of this petition, based upon
the alleged violation of the Tubbataha Reefs Natural
Park Act, by itself does not and should not automatically
render the Rules of Procedure· for Environmental Cases
applicable. At best, it must be reconciled with rules on
parties as contained in the Rules of Court. This is to
preclude a situation where the interpretation of the Rules
of Procedure for Environmental Cases results in a ruling
inconsistent or contrary to established legal concepts. It
is my position that unless the remedy sought will serve
the purpose of preventing an environmental catastrophe,
the traditional procedural route should be taken. This
means that even in environmental cases, Rule 3, Section
2, 3, or 12 of the 1997 Rules of Civil Procedure should
still also apply.
Real party in interest
Rule 3, Section 2 pertains to 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 fsrosecuted or defended in
the name of the real party in interest. (2a) 38
A real party in interest is a litigant whose right or interest
stands to benefit or get injured by the judgment of the
case.39 The interest referred to must be material interest,
founded upon a legal right sought to be enforced.40 They
bring a suit because the act or omission of another has
caused them to directly suffer its consequences. 41 Simply
put, a real party in interest has a cause of action based
upon an existing legal right-duty correlative.
Representatives as parties
Section 3 of Rule 3, on the other hand, discusses parties
acting in representation of the real party in interest:
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 trust, 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
25
may sue or be sued without joining the principal except
when the contract involves things belonging to the
principal.(3a)42
A "representative" is not the party who will actually
benefit or suffer from the judgment of the case. The rule
requires that the beneficiary be identified as he or she is
deemed the real party in interest.43 This means that
acting ·in a representative capacity does not turn into a
real party in interest someone who is otherwise an
outsider to the cause of action.
This rule enumerates who may act as representatives,
including those acting in a fiduciary capacity. While not
an exhaustive list, it does set a limit by allowing only
those who are "authorized by law or these Rules."44 In
environmental cases, this section may be used to bring a
suit, provided that two elements concur: 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
Comt to represent the victim.
The citizen's suit under the Rules of Procedure for
Environmental Cases is a representative suit. A citizen's
suit is defined:
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.
In my view, this rule needs to be reviewed. A citizen's
suit that seeks to enforce environmental rights and
obligations may be bro1:1ght by any Filipino who is
acting as a representative of others, including minors or
generations yet unborn.45 As representatives, it is not
necessary for petitioners to establish that they directly
suffered from the grounding of the USS Guardian and
the subsequent salvage operations. However, it 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."
This is particularly important when the parties sought to
be represented are "minors and generations yet unborn."
"Minors and generations yet unborn" is a category of
real party in interest that was first established in Oposa
v. Factoran. In Oposa v. Factoran, this court ruled that
the representatives derived their personality to file a suit
on behalf of succeeding generations from
"intergenerational responsibility."46 The case mirrored
through jurisprudence the general moral duty of the·
present generation to ensure the full enjoyment of a
balanced and healthful ecology by the succeeding
generations.47
Since environmental cases necessarily involve the
balancing of different types and degrees of interests,
allowing anyone from the present generation to represent
others who are yet unborn poses three possible dangers.
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.
Decisions of this court will bind future generations. The
unbridled and misguided use of this remedy by supposed
representatives may not only weaken the minors' and
unborn's ability to decide for themselves but may have
unforeseen and unintended detrimental effects on their
interests.
The last point is especially crucial in light of res judicata.
A longestablished doctrine on litigation, res judicata:
... is an old axiom of law, dictated by wisdom and
sanctified by age, and founded on the broad principle
that it is to the interest of the public that there should be
an end to litigation by the same parties over a subject
once fully and fairly adjudicated. It has been
appropriately said that the doctrine is a rule pervading
every well-regulated system of jurisprudence, and is put
upon two grounds embodied in various maxims of the
common law: one, public policy and necessity, which
makes it to the interest of the State that there should be
an end to litigation - interest reipublicae ut sit finis
litium; the other, the hardship on the individual tlwt he
should be vexed twice for one and the same cause -
nemo debet bis vexari pro una et eadem causa. A
contrary doctrine would subject the public peace and
quiet to the will and neglect of individuals and prefer the
gratification of the litigious disposition on the pmi of
suitors to the preservation of the public tranquillity and
happiness.48 (Emphasis supplied, citation omitted)
The elements of res judicata are:
. . . (1) the former judgment must be final; (2) the former
judgment must have been rendered by a court having
jurisdiction of the subject matter and the parties; (3) the
former judgment must be a judgment on the merits; and
(4) there must be between the first and subsequent
actions (i) identity of parties or at least such as
representing the same interest in both actions; (ii)
identity of subject matter, or of the rights asse1ied and
relief prayed for, the relief being founded on the same
facts; and, (iii) identity of causes of action in both
actions such that any judgment that may be rendered in
the other action will, regardless of which party is
successful, amount to res judicata in the action· under
consideration.49 (Emphasis supplied, citation omitted)
26
An absolute identity of the parties is not required for res
judicata to apply, for as long as there exists an identity or
community of interest.50
Res judicata renders conclusive between the parties and
their privies a ruling 'on their rights, not just for the
present action, but in all subsequent suits. This pertains
to all points and matters judicially tried by a competent
court. The doctrine bars parties to litigate an issue more
than once, and this is strictly applied because "the
maintenance of public order, the repose of society ...
require that what has been definitely determined by
competent tribunals shat' be accepted as irrefragable
legal truth."51
Considering the effect of res judicata, the ruling in
Oposa v. F actoran has opened a dangerous practice of
binding parties who are yet incapable of making choices
for themselves, either due to minority or the sheer fact
that they do not yet exist. Once res judicata sets in, the
impleaded minors and generations yet unborn will be
unable to bring a suit to relitigate their interest. 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.
Class suit
The same concern regarding res judicata also applies to a
class suit.
Rule 3, Section 12 of the Rules of Court states:
SEC. 12. Class suit. - When the subject matter of the
controversy is one of common or general interest to
many persons so numerous that it is impracticable to join
all as parties, a number of them which the court finds to
be sufficiently numerous and representative as to fully
protect the interests of all concerned may sue or defend
for the benefit of all. Any party in interest shall have t he
right to intervene to protect his individual interest. (12a)
In Mathay et al. v. The Consolidated Bank and Trust
Company,52 this court held that a class suit must
essentially contain the following elements:
The necessary elements for the maintenance of a class
suit are accordingly (1) that the subject matter of the
controversy be one of common or general interest to
many persons, and (2) that such persons be so numerous
as to make it impracticable to bring them all to the court.
An action does not become a class suit merely because it
is designated as such in the pleadings. Whether the suit
is or is not a class suit depends upon the attending facts,
and the complaint, or other pleading initiating the class
action should allege the existence of the necessary facts,
to wit? the existence of a subject matter of cqmmon
interest, and the existence of a class and the number of
persons in the alleged class, in order that the court might
be enabled to determine whether the members of the
class are so numerous as to make it impracticable to
bring them all before the court, to contrast the number
appearing on the record with the number in the class and
to determine whether claimants on record adequately
represent the class and the subject matter of general or
common interest.
The complaint in the instant case explicitly declared that
the plaintiffs-appellants instituted the "present class suit
under Section 12, Rule 3, of the Rules of Comi in behalf
of CMI subscribing stockholders" but did not state the
number of said CMI subscribing stockholders so that the
trial court could not infer, much less make sure as
explicitly required by the statutory provision, that the
parties actually before it were sufficiently numerous and
representative in order that all interests concerned might
be fully protected, and that it was impracticable to bring
such a large number of pmiies before the court.
The statute also requires, as a prerequisite to a class suit,
that the subject-matter of the controversy be of common
or general interest to numerous persons. Although it has
been remarked that the "innocent 'cominon or general
interest' requirement is not very helpful in determining
whether or not the suit is proper," the decided cases in
our jurisdiction have more incisively certified the matter
when there is such common or general interest in the
subject matter of the controversy. By the phrase "subject
matter of the action" is meant "the physical facts, the
things real or personal, the money, lands, chattels, and
the like, in relation to which the suit is prosecuted, and
not the delict or wrong committed by the defendant.
"53 (Emphasis supplied, citations omitted)
The same case referred to the United States Federal
Rules of Civil Procedure. After having been raised by
Mathay et al. as legal basis for its class suit, this court
held:
. . . We have no conflict with the authorities cited; those
were rulings under the Federal Rules of Civil Procedure,
pursuant to Rule 23 of which, there were three types of
27
class suits, namely: the true, the hybrid, and the spurious,
and these three had only one feature in common, that is,
in each the persons constituting the class must be so
numerous as to make it impracticable to bring them all
before the court. The authorities cited by plaintiffs-
appellants refer to the spurious class action Rule 23 (a)
(3) which involves a right sought to be enforced, which
is several, and there is a common question of law or fact
affecting the several rights and a common relief is
sought. The spurious class action is merely a permissive
joinder device; between the members of the class there is
no jural relationship, and the right or liability of each is
distinct, the class being formed solely by the presence of
a common question of law or fact. This permissive
joinder is provided in Section 6 of Rule 3, of our Rules
of Court. Such joinder is not and cannot be regarded as a
class suit, which this action purported and was intended
to be as per averment of the complaint. It may be granted
that the claims of all the appellants involved the same
question of law. But this alone, as said above, did not
constitute the common interest over the subject matter
indispensable in a class suit . . . .54 (Emphasis supplied,
citations omitted)
In a class suit, petitioners necessarily bring the suit in
two capacities: first, as persons directly injured by the
act or omission compla.ined of; and second, as
representatives of an entire class who have suffered the
same injury. In -order to fully protect all those
concerned, petitioners must show that they belong in the
same universe as those they seek to represent. More
importantly, they must establish that, in that universe,
they can intervene on behalf of the rest.
These requirements equally apply in environmental
cases.
Petitioners who bring the suit both for themselves and
those they seek to represent must share a common legal
interest - that is, the subject of the suit over which there
exists a cause of action is common to all persons who
belong to the group.55 As a result, the right sought to be
enforced is enjoyed collectively, and not separately or
individually.56 The substantial injury must have been
suffered by both the parties bringing the suit and the
represented class. However, it is recognized that any
damage to the environment affects people differently,
rendering it impossible for the injury suffered to be of
the same nature and degree for each and every person.
For instance, secondhand smoke from one who lights up
a cigarette may cause lung and other health
complications of a much graver degree to exposed
commuters, compared to those who are kept insulated by
well-maintained and wellventilated buildings. The same
may be said for dumpsites along the shores of a bay. The
gravity of injury they cause to those whose source of
livelihood is purely fishing in the affected area would be
entirely different from that sufiered by an office worker.
The differences in effects, ranging from miniscule to
grave, increase the possibility of "free-riders" in a case.
This results in a negative externality: an environmental
management concept that delves into the effect of an
individual's or firm's action on others.57 In this case, the
effect on others is a disadvantage or an injury.
In most instances where this free-rider or negative
externality exists, a suit is not filed because the cost of
maintaining and litigating outweighs the actual damage
suffered due to the act or omission of another. The
theory is that bringing a class suit allows those who are
not as affected as petitioners, though they may share the
same interest, to latch their claim on someone else
without any personal expense. There must be some
assurances, however, that the interests are the same and
the arguments that should have been brought by others
who do not have the resources to bring the suit are
properly represented. This is why the niles allow courts
to be liberal in assessing "common interest."
Another essential element of a class suit is that
petitioners must be sufficiently numerous and
representative so as to fully protect the interest of all
concerned. One of the dangers of bringing a class suit is
that while the parties' environmental interest shares a
common legal basis, the extent and nature of that interest
differ depending on circumstances.
In the case of Re: Request of the Plaintiffs, Heirs of the
Passengers of the Dona Paz,58 which quoted Moore's
Federal Practice we noted:
A "true class action" - distinguished from the so-called
hybrid and the spurious class action in U.S. Federal
Practice - "involves principles of compulsory joinder,
since ... (were it not) for the numerosity of the class
members all should ... (be) before the court. Included
within the true class suit ... (are) the shareholders'
derivative suit and a class action by or against an
unincorporated association .... A judgment in a class suit,
whether favorable or unfavorable to the class, is binding
under res judicata principles upon all the members of the
class, whether or not they were before the court. It is tlze
non-divisible nature of the right sued on which
determines both the membership of the class and the res
judicata effect of the final determination of the
right."59 (Emphasis supplied)
Those who bring class suits do so, carrying a heavy
burden of representation. All the parties represented may
not have consented to the agency imposed on them.
Courts, therefore, must ensure that the parties that bring
the suit are sufficiently numerous to. ensure that all
possible interests and arguments have been· considered.
The community, class, group, or identity that is
represented must be sufficiently defined so that the court
will be able to properly assess that the parties bringing
the suit are properly representative.
In view of the technical nature of some environmental
cases, not only should. the parties be representative in
terms. of the interests and arguments that they bring,
they must likewise show. that they have the capability to
bring reasonably cogent, rational, scientific, well-
founded arguments. This is so because if they
purportedly represent a community, class, group, or
identity, we should assume that all those represented
would have wanted to . argue in the best possible
manner.
28
The cogency "and representativeness of the arguments
can readily be seen in the initiatory pleading. In the
special civil actions invoked in this case, this court has
the discretion to scrutinize the initiatory pleading to
determine whether it should grant due course prior or
after the filing of a comment. In my view, this pleading
falls short of the requirement of representativeness.
For instance, it is clear in some of the reliefs that were
requested that the arguments may not be what all those
they purport to represent really want. As an illustration,
the petition requests:
3) for respondents to stop all port calls and war
games under the Balikatan;
The facts in this case and the writ of kalikasan
certainly have no bearing on why this· court
should issue an injunction against all port calls
in any part of the country made by all kinds of
ships even if this is related to the Balikatan
exercises. "War games" even undertaken solely
on land has no bearing on the subject matter of
this case. Also, in the facts as alleged in the
pleading, it is not clear how all those affected by
the ecological mishap that may have occurred in
the Tubbataha Reefs would also be interested in
stopping "war games under the Balikatan." The
pleading asserts that it represents all generations
yet unborn. Thus, it includes the sons and
daughters of all government officials who are
now involved in the Balikatan exercises. It also
includes the military commanders who are now
administering such exercise. The broad relief
requested belies the representativess of the suit.
Of similar nature are the following prayers for
relief in the petition:
4) for respondents to assume responsibility for
prior and future environmental damage in
general and under the Visiting Forces
Agreement (VFA);
5) for the temporary definition of allowable
activities near or around the Tubbataha Reefs
[Natural] Park, but away from the damaged site
and the additional buffer zone;
6) for respondent Secretary of Foreign Affairs to
negotiate with the United States representatives
for an agreement on environmental guidelines
and accountability pursuant to the VFA;
....
8) for the declaration of exclusive criminal
jurisdiction of Philippine authorities over erring
USS Guardian personnel;
....
14) for the convention of a multisectoral
technical working group that will provide
scientific and teclmical support to the Tubbataha
Protected Area Management Board (TPAMB1);
15) for respondents Department of Foreign
Affairs, Department of National Defense, and
the Department of Environmental and Natural
·Resources to review the VFA and the Mutual
Defense Treaty in light of the right to a balanced
and healthful ecology, and any violation related
thereto;
16) for the declaration of the grant of immunity
under Articles V and VI of the VFA as being
violative of equal protection and/or the
peremptory norm of nondiscrimination; 17) for
permission to resort to continuing discovery
measures
17) for permission to resort to continuing
discovery measures
Not all environmental cases need to be brought as class
suits. There is no procedural requirement that majority of
those affected must file a suit in order that an injunctive
writ or a writ of kalikasan can be issued. It is sufficient
that the party has suffered its own direct and substantial
interest, its legal basis is cogent, and it has the capability
to move forward to present the facts and, if necessary,
the scientific basis for its analysis for some of these
cases to be given due course.
Parenthetically, the humility of bringing suits only in the
name of petitioners vvill protect them from the charge
that more than the legal argurnents they want to bring,
they also want to impose their own political views as
views which are umversally accepted.
In all environmental cases, it is also not necessary that
generations yet unborn be represented. It is not also
necessary that minors bring the suit. In my view,
pleading their interests have no value added to the· case
except for its emotive effect at the risk of encouraging a
paternal attitude toward our children and for those
belonging to generations yet unborn. Certainly, it was
not necessary with respect to the putative cause of action
relating to the grounding of the USS Guardian.
With the class suit improperly brought, the parties who
filed this petition have no legal standing. To protect the
individuals, families, and communities who are
improperly represented, this case should be dismissed.
III
A petition for a writ of kaiikasan is a wrong remedy
Rule 7, Part III of the Rules of Procedure for
Environmental Cases pertaines to the writ of kalikasan.
It describes the nature of the writ:
Section 1. Nature of the writ. -The writ is a remedy
available to a natural or juridical person, entity
authorized by law, people's organization, non-
governmental organization, or any public interest group
accredited by or registered with any government agency,
on behalf of persons whose constitutional right to a
29
balanced and healthful ecology is violated, or threatened
with violation by an unlawful act or omission of a public
official or employee, or private individual or entity,
involving environmental damage of such magnitude as
to prejudice the life, health or property of inhabitants in
two or more cities or provinces. (Emphasis supplied)
The writ of kalikasan is a remedy that covers
environmental damages the magnitude of wliich
transcends both political and territorial boundaries. 60 It
specifically provides that the prejudice to life, health, or
property caused by an unlawful act or omission of a
public official, public employee, or a private individual
or entity must be felt in at least two cities or
provinces.61 The petition for its issuance may be filed on
behalf of those whose right to a balanced and healthful
ecology is violated, provided that the group or
organization which seeks to represent is duly
accredited.62
Two things must be examined: first, whether petitioners
are qualified to bring this suit under the requirements of
the provisions; and second, whether there are actual
injured parties being represented. On the first issue, the
following petitioners bring this case as individuals:
• Rev. Pedro Agiro, Vicar Apostolic of Puerto
Princesa63
• Rev. Deogracias Iniguez, Jr., Bishop-Emeritus
of Caloocan64
• Frances Quimpo65
• Teresita R. Perez, Ph.D66
• Giovanni Tapang, Ph.D67
• Jose Enrique Africa68
• Nestor Baguinon69
• A. Edsel Tupaz70
The following petitioners represent organizations:
• Clemente Bautista Jr., Coordinator of
Kalikasan People's Network for the
Environment71
• Maria Carolina Araullo, Chairperson of
Bagong Alyansang Makabayan (Bayan)72
• Renato Reyes Jr., Secretary-General of Bagong
Alyansang Makabayan (Bayan)73
• Hon. Neri Javier Colmenares, Representative
of Bayan Muna Party-list74
• Roland Simbulan, Ph.D., Junk VFA
Movement75
• Hon. Raymond Palatino, Representative of
Kabataan Party-list76
• Peter Gonzales, Vice Chairperson of
Pambansang Lakas ng Kilusang Mamamalakaya
ng Pilipinas (Pamalakaya)77
• Elmer Labog, Chairperson of Kilusang Mayo
Uno78
• Joan May Salvador, Secretary-General of
Gabriela79
• Theresa Concepcion, Earth Island lnstitute80
• Mary Joan Guan, Executive Director for
Center for Women's Resources81
Petitioners satisfy the first requirement as they comprise
both natural persons and groups duly recognized by the
government. It is doubtful, however, whether there are
actual injured parties being represented. As discussed
previously, a citizen's suit on an environmental issue
must be resorted to responsibly.
Petitioners in this case also seek the issuance of a
temporary environmental protection order or TEPO.
Rule 7, Part III of the Rules of Procedure for
Environmental Cases provides:
SEC. 8. Issuance of Temporary Environmental
Protection Order (TEPO). - If it appears from the
verified complaint with a prayer for the issuance of an
Environmental Protection Order (EPO) that the matter is
of extreme urgency and tlze applicant will suffer grave
injustice and irreparable injury, the executive judge of
the multiple-sala court before raffle or the pres1ding
judge of a singlesala court as the case may be, may issue
ex parte a TEPO effective for only seventy-two (72)
hours from date of the receipt of the TEPO by the party
or person enjoined. Within said period, the court where
the case is assigned, shall conduct a summary hearing to
determine whether the TEPO may be extended until the
termination of the case.
The court where the case is assigned, shall periodically
monitor the existence of acts that are the subject matter
of the TEPO even if issued by the executive judge, and
may lift the same at any time as circumstances may
warrant.
The applicant shall be exempted from the posting of a
bond for the issuance of a TEPO. (Emphasis supplied)
A TEPO is an order which either directs or enJoms a
person or government agency to perform or refrain from
a certain act, for the purpose of protecting, preserving,
and/or rehabilitating the environment.82 The crucial
elements in "its issuance are the presence of "extreme
urgency" and "grave injustice and irreparable injury" to
the applicant.83
Petitioners hinge the basis for this prayer on the salvage
operations conducted immediately after the incident. The
remedy is no longer available considering that all
activities to remove the grounded USS Guardian have
been concluded.84 Furthermore, the Notice to Mariners
No. 011-2013 issued by the Philippine Coast Guard on
30
January 29, 2013 effectively set the metes and bounds of
the damaged area.85 This notice also prohibited "leisure
trips to Tubbataha" and advised "all watercrafts
transitting the vicinity to take precautionary measures." 86
In light of the facts of this case, 1 vote that the petition
be also dismissed for being moot and being brought
through the wrong remedy.
IV
Doctrine of relative jurisdictional immunity
(sovereign immunity)
It is my position that doctrine on relative jurisdictional
immunity of foreign state or otherw!se referred to as
sovereign immunity should be further refined. I am of
the view that immunity does not necessarily apply to all
the foreign respondents should the case have been
brought in a timely manner, with the proper remedy, and
in the proper court. Those who have directly and actually
committed culpable acts or acts resulting from gross
negligence resulting in the grounding of a foreign
warship in violation of our laws defining a tortious act or
one that protects the environment which implement
binding international obligations cannot claim sovereign
immunity.
Some clarification may be necessary to map the contours
of relative jurisdictional immunity of foreign states
otherwise known as the doctrine of sovereign immunity.
The doctrine of sovereign immunity can be understood
either as a domestic or an inte1national concept. 87
As a domestic concept, sovereign immunity is
understood as the nonsuability of the state. In the case of
the Republic of the Philippines as a State, this is
contained in Article XVI, Section 3 of the 1987
Philippine Constitution, which provides that "[the] State
may not be sued without its consent."
In Air Transportation Office v. Spouses Ramos,  this88
court underscored the practical considerations
underlying the doctrine:
Practical considerations dictate the establishment of an
immunity from suit in favor of the
State.1âwphi1 Otherwise, and the State is suable at the
instance of every other individual, government service
may be severely obstructed and public safety endangered
because of the number of suits hat the State has to
defend against ....89 (Emphasis supplied, citation omitted)
The textual reference to "[the] State" in Article XVI,
Section 3 of the Constitution does not refer to foreign
governments. Rather, as a doctrine in international law,
the concept of sovereign immunity is incorporated into
our jurisdiction as international custom or general
principle of international law through Article II, Section
2, which provides:
Section 2. The Philippine renounces war as an
instrument of national policy, adopts the generally
accepted principles of international law as part of the law
of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all
nations.90 Alternatively, should there be an international
agreement or a treaty91 that articulates the scope of
jurisdictional immunity for other sovereigns, then it can
be incorporated through Article VII, Section 21, which
provides:
No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all
the Members of the Senate.
In Republic of Indonesia v. Vinzon,92 this court ruled
that "[the] rule that a State may not be sued without its
consent is a necessary consequence of the principles of
independence and equality of States."93 However, it did
not make any reference to Article XVI, Section 3 of the
Constitution. Instead, it used Article II, Section 294 as
basis for its discussion:
International law is founded largely upon the principles
of reciprocity, comity, independence, and equality of
States which were adopted as part of the law of our land
under Article II, Section 2 of the 1987 Constitution. The
rule that a State may not be sued without its consent is a
necessary consequence qf the principles of independence
and equality of States. As enunciated in Sanders v.
Veridiano II, the practical justification for the doctrine of
sovereign immunity is that there can be no legal right
against the authority that makes the law on which the
right depends. In the case of foreign States, the rule is
derived from the principle of the sovereign equality of
States, as expressed in the maxim par in parem non
lzabet imperium. All states are sovereign equals and
cannot assert jurisdiction over one another. A contrary
attitude would "unduly vex the peace of
nations."95 (Emphasis supplied, citations omitted)
V
Sovereign immunity under international law
Under international law, sovereign immunity remains to
be an abstract concept. On a basic level, it is understood
as a basic right extended to states by other states on the
basis of respect for sovereignty and
independence.96 There appears to be a consensus among
states that sovereign immunity as a concept is legally
binding.97 Nevertheless, legal scholars observe that there
remains to be a lack of agreement as to how it is to be
invoked or exercised in actual cases.98 Finke presents:
States accept sovereign immunity as a legally binding
concept, but only on a very abstract level. They agree on
the general idea of immunity, but disagree on the extent
to which they actually must grant immunity in a specific
case.99 (Emphasis supplied, citations omitted)
This vagueness arises from the debate about the sources
of international law for the doctrine of sovereign
immunity.
Article 38(1) of the Statute of the International Court of
Justice (ICJ Statute)100 enumerates the classic sources of
international law:101
31
The Court, whose function is to decide in accordance
with international law such disputes as are submitted to
it, shall apply:
a. international conventions, whether general or
particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a general
practice accepted as law;
c. the general principles of law recognized by
civilized nations;
d. subject to the provisions of Article 59, judicial
decisions and the teachings of the most highly
qualified publicists of the various nations, as
subsidiary means for the determination of rules
of law.
International conventions, or treaties, are "international
agreement[s] concluded between States in written form
and governed by international law, whether embodied in
a· single instrument, or in two or more related
instruments and whatever its particular
designation."102 International custom, or customary
international law, pertains to principles, not necessarily
expressed in treaties, resulting from practices
consistently followed by states due to a sense of legal
obligation.103 General principles of law recognized by
civilized nations are "(those) principles of law, private
and public, which contemplation of the legal experience
of civilized nations leads one to regard as obvious
maxims of jurisprudence of a general and fundamental
character."104
Sovereign immunity under treaty law
Attempts hav.e been made to establish sovereign
immunity under treaty law.105 On a multilateral level,
two treaties on this issue have been codified: a) the
European Convention on State Immunity (ECSI), and b)
the UN Convention on Jurisdictional Immunities of
States (UNCJIS).
The European Convention on State Immunity is a treaty
established through the Council of Europe on May 16,
1972.106 In the Council of Europe's explanatory report,
sovereign immunity is defined as "a concept of
international law, which has developed out of the
principle par in parem non habet imperium, by virtue of
which one State is not subject to the jurisdietion of
another State."107 The treaty arose out of the need to
address cases where states become involved in areas of
private law:
For many years State immunity has occupied the
attention of eminent jurists. It is also the object of
abundant case law. The development of international
relations and the inc.reasing intervention of States in
sphen;s belonging to private law have posed the problem
still more acutely by increasing the number of disputes
opposing individuals andforeign States.
There are, at present, two theories, that of absolute State
immunity which is the logical consequence of the
principle stated above and that of relative State
immunity which is tending. to predominate on account
of the requirement of modern conditions. According to
this latter theory, the State enjoys immunity for acts jure
imperii but not for acts jure gestionis, that is to say when
it acts in the same Jvay as a private person in relations
governed by private law. This divergence of opinion
causes difficulties in international relations. States whose
courts and administrative authorities apply the theory of
absolute State immunity are led to call for the same
treatment abroad. (Emphasis supplied)
However, the European Convention on Sovereign
Immunity's application is limited to the signatories of the
treaty:
The Convention requires each Contracting State to give
effect to judgments rendered against it by the courts of
another Contracting State. It is in particular for this
reason that it operates only between the Contracting
States on the basis of the special confidence subsisting
among the Members of the Council of Europe. The
Convention confers no rig/u:s on nonContracting States;
in particular, it leaves open all questions as to the
exercise of jurisdiction against non-Contracting States in
Contracting States, and vice versa.
On the other hand, the UN Convention on Jurisdictional
Immunities of States108 is a treaty adopted by the UN
General Assembly in December 2004. It was opened for
signature on January 27, 2005, but is yet to be in
force109 for lacking the requisite number of member-state
signatories.110 At present, it only has 28 signatories, 16 of
which have either ratified, accepted, approved, or
acceded to the treaty.111
UNCJIS refers to jurisdictional immunities of states as a
principle of customary international law.112 Scholars,
however, point out that this posture is not accurate.
According to N agan and Root:113
It may be true that all states recognize jurisdictional
immunity, but as we have already alluded to, that is so
only at an abstract level; there is "substantial
disagreement on detail ·and substance."114 (Emphasis
supplied, citations omitted)
Wiesinger adds:
The UN Convention is not a codification of customary
international law concerning enforcement measures
either, since it introduces new categories of State
property, which are immune from execittion. Moreover,
it contains a connection requirement of property serving
commercial purposes with the entity against which the
claim was directed, which is a novelty in international
law.115 (Emphasis supplied)
The Philippines has neither signed nor ratified the
UNCJIS. Article VII, Section 21 of the Constitution
clearly provides the legal requisites to a valid and
enforceable international treaty: "No treaty or
international agreement shall be valid and effective
32
unless concurred in by at least twothirds of all the
Members of the Senate."
Senior Associate Justice Antonio T. Carpio ably points
to the UN Convention on the Law of the Sea (UNCLOS)
as basis for the waiver of sovereign immunity in this
case, on account of a warship entering a restricted area
and causing damage to the TRNP reef system. This is
based on a reading of Articles 31 and 32 of the
UNCLOS, thus:
Article 31
Responsibility of the flag State for damage caused by a
warship or
other government ship operated for non-commercial
purposes
The flag State shall bear international responsibility for
any loss or damage to the coastal State resulting from the
non-compliance by a warship or other government ship
operated for non-commercial purposes with the laws and
regulations of the coastal State concerning passage
through the territorial sea or with the provisions of this
Convention or other rules of international law.
This is, however, subject to Article 32 of the same treaty
which provides:
Article 32
Immunities of warships and other government ships
operated for
non-commercial purposes
With such exceptions as are contained in subsection A
and in articles 30 and 31, nothing in this Convention
affects the immunities of warships and other
'government ships operated for non-commercial
purposes.
I agree that the UNCLOS does provide an opening
clarifying the "international responsibility" of the flag
ship for non-compliance by a warship with the laws of a
coastal State. However, because of Article 32 of the
same treaty, it would seem that it should not be the only
basis for this court to infer either a waiver by the United
States or authority under international law for domestic
courts to shape their own doctrines of sovereign
jurisdictional immunity.
Other international agreements
The text of A1iicle VII, Section 21 would seem to
require Senate concurrence for treaties and "international
agreements." The term "international agreements,"
however, for purposes of granting sovereign immunity,
should not cover mere executive agreements.
We are aware of Bayan Muna v. Romulo116 where the
ponente for this court held:
. . . . International agreements may be in the form of (1)
treaties that require legislative concurrence after
executive ratification; or (2) executive agreements that
are similar to treaties, except that they do not require
legislative concurrence and are usually less formal and
deal with a narrower range of subject matters than
treaties.
Under international law, there is no difference between
treaties and executive agreements in terms of their
binding effects on the contracting states concerned, as
long as the negotiating functionaries have remained
within their powers. Neither, on the domestic sphere, can
one be held valid if it violates the Constitution.
Authorities are, however, agreed that one is distinct from
another for accepted reasons apaii from the concurrence-
requirement aspect. As has been observed by US
constitutional scholars, a treaty has greater "dignity" than
an executive agreement, because its constitutional
efficacy is beyond doubt, a treaty having behind it the
authority of the President, the Senate, and the people;
a ratified treaty, unlike an executive agreement, takes
precedence over any pnor statutory
enactment.117 (Emphasis supplied, citations omitted)
This statement, however, should be confined only to the
facts of that case. Executive agreements are not the same
as treaties as a source of international law. It certainly
may have a different effect in relation to our present
statutes unlike a treaty that is properly ratified.
Due to the nature of respondents' position ill the United
States Armed Forces, the Visiting Forces Agreement of
1998 (VFA) is relevant in this case. In particular, the
question of whether the VFA, executed between the
Republic of the Philippines and the United States
government, may be treated as a "treaty" upon· which
the doctrine of foreign sovereign immunity is founded
must be addressed.
In BAYAN v. Zamora,118 this court tackled the issues
pertaining to the constitutionality of the VFA. It was
described as "consist[ing] of a Preamble and nine (9)
Articles, [and it] provides for the mechanism for
regulating the circumstances and conditions under which
[the] US Armed Forces and defense personnel maybe
present in the Philippines .... "119
As a preliminary issue, this court ruled that the Senate
concurrence as required by the Constitution was
achieved, thereby giving VFA a legally binding effect
upon the government.120 However the agreement's
characterization as a "treaty" was put in question. This
court held that despite the non-concurrence of the United
States Senate, the VFA is validly categorized as a treaty:
This Court is of the firm view that the phrase
"recognized as a treaty" means that the other contracting
party accepts or acknowledges the agreement as a treaty.
To require the other contracting state, the United States
of America in this case, to submit the VFA to the United
States Senate for concurrence pursuant to its
Constitution, is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in
the Constitution are to be given their ordinary meaning
except where technical terms are employed, in which
case the significance thus attached to them prevails. Its
33
language should be understood in the sense they have in
common use.
Moreover, it is inconsequential whether the United
States treats the VFA only qs an executive agreement
because, under international law, an executive agreement
is as binding as a treaty. To be sure, as long as the VFA_
possesses the elements of an agreement under
international law, the said agreement is to be taken
equally as a treaty.
A treaty, as defined by the Vienna Convention on the
Law of Treaties, is "an international instrument
concluded between States in written form and governed
by international law, whether embodied in a single
instrument or in two or more related instruments, and
whatever its particular designation." There are many
other terms used for a treaty or international agreement,
some of which are: act, protocol, agreement,
compromised' arbitrage, concordat, convention,
declaration, exchange of notes, pact, statute, charter and
modus vivendi. All writers, from Hugo Grotius onward,
have pointed out that the names or titles of international
agreements included under the general term treaty have
little or no legal significance. Certain terms are useful,
but they furnish little more than mere description.
Article 2(2) of the Vienna Convention provides that "the
provisions of paragraph 1 regarding the use of terms in
the present Convention are without prejudice to the use
of those terms, or to the meanings whic;h may be given
to them in the internal law of the State.
Thus, in international law, there is no difference between
treaties and executive agreements in their binding effect
upon states concerned, as long as the negotiating
functionaries have remained within their powers.
International law continues to make no distinction
between treaties and executive agreements: they are
equally binding obligations upon nations.
In our jurisdiction, we have recognized the binding
effect of executive agreements even without the
concurrence of the Senate or Congress....
....
The records reveal that the United States Government,
through Ambassador Thomas C. Hubbard, has stated that
the United States government has fully committed to
living up to the terms of the VFA. For as long as the
United States of America accepts or acknowledges the
VFA as a treaty, and binds itself further to comply with
its obligations under the treaty, there is indeed marked
compliance with the mandate of the
Constitution.121 (Emphasis supplied, citations omitted)
Under the US legal ,system, however, an executive
agret:ment, while legally binding, may not-have the
same effect as a treaty. It may, under certain
circumstances, be considered as inferior to US law
and/or Constitution. According to Garcia:122
Under the U.S. legal system, international agreements
can be entered into by means of a treaty or an executive
agreement. The Constitution allocates primary
responsibility for entering into such agreements to the
executive branch, but Congress also plays an essential
role. First, in order for a treaty (but not an executive
agreement) to become binding upon the United States,
the Senate must provide its advice and consent to treaty
ratification by a two-thirds majority. Secondly, Congress
may authorize congressional-executive agreements.
Thirdly, many treaties and executive agreements are not
self-executing, meaning that implementing legislation is
required to provide. U.S. bodies with the domestic legal
authority necessary to enforce and comply with an
international agreement 's provisions.
The status of an international agreement within the
United States depends on a variety of factors. Self-
executing treaties have a status equal to. federal statute,
superior to U.S. state law, and inferior to the
Constitution. Depending upon the nature of executive
agreements, they may or may not have a status equal to
federal statute. In any case, self-executing executive
agreements have a status that is superior to U.S. state
law and inferior to the Constitution. Treaties or
executive agreements that are not selfexecuting have
been understood by the courts to have limited status
domestically; rather, the legislation or regulations
implementing these agreements are
controlling.123 (Emphasis supplied, citation omitted)
Domestic politics and constitutional guidelines also
figure into the effect of an executive agreement in the
United States. Garcia adds:
The great majority of international agreements that the
United States enters into are not treaties but executive
agreements-agreements entered into by the executive
branch that are not submitted to the Senate for its advice
and consent. Congress generally requires notification
upon the entry of such an agreement. Although executive
agreements are not specifically discussed in the
Constitution, they nonetheless have been considered
valid international compacts under Supreme Court
jurisprudence and as a matter of historical practice.
....
Sole executive agreements rely on neither treaty nor
congressional authority to provide for their legal basis.
The Constituti Jn may confer limited authority upon the
President to promulgate such ag1eements on the basis of
his foreign affairs power. If the President enters into an
executive agreement pursuant to and dealing with an
area where he has clear, exclusive constitutional
authority - such as an agreement to recognize a particular
foreign government for diplomatic purposes - the
agreement is legally permissible regardless of Congress's
opinion on the matter. If, however, the President enters
into an agreement and his constitutional authority over
the agreement's subject matter is unclear, a reviewing
court may consider Congress's position in determining
whether the agreement is legitimate. If Congress has
given. its implicit approval to the President entering the
agreement, or is silent on the matter, it is more likely that
the agreement will be deemed valid. When Congress
opposes the agreement and the President's constitutional
authority to enter the agreement is ambiguous, it is
34
unclear if or when such an agreement would be given
effect.124 (Emphasis supplied, citation omitted)
The recognition of the complex nature and legal
consequences of an executive agreement entered into by
the United States with another State must not be taken
lightly. This is especially in light of the invocation of
"international comity", which loosely refers to "applying
foreign law or limiting domestic jurisdiction out of
respect for foreign sovereignty."125
As it stands, international comity is by itself no longer a
simple matter. In quoting an 1895 US case, Hilton v.
Guyot,126 Paul argues that at the beginning of the 20th
century, the underlying principle of international comity
was the respect afforded by one sovereign to another. At
present, however, Paul posits:
For all these reasons, international comity would seem to
be too vague, incoherent, illusory, and ephemeral to
serve as a foundation for U.S. private international law.
Yet, it is precisely these qualities that have allowed the
doctrine of international comity to mutate over time in
ways that re.)pond to different geopolitical
circumstances. Specifically, international comity has
shifted in three distinct respects. First, the meaning of
comity has shifted over time. Originally, international
comity was a discretionary doctrine that empowered
courts to decide when to defer to foreign law out of
respect for foreign sovereigns. Comity has become a rule
that obligates courts to· apply foreign law in certain
circumstances. Second, the object of comity has
changed. Whereas once comis justified applying foreign
law out of deference to foreign sovereigns, courts later
justified their decisions out of deference to the autonomy
of private parties or to the political branches. Most
recently, courts have justified limits on domestic law out
of deference to the global market. Third, the function of
comity has changed. Comity is no longer merely a
doctririe for deciding when to apply foreign law; it has
become a justification for deference in a: wide range of
cases concerning prescriptive, adjudicatory, and
enforcement jurisdiction. (Emphasis supplied, citation
omitted)
On a substantive note, another issue raised in BAYAN v.
Zamora is whether the VFA amounted to an abdication
of Philippine sovereignty insofar as the jurisdiction of
local courts "to hear and try offenses committed by US
military personnel"127 was concerned. Upon finding at
the outset that the VFA did not amount to grave abuse of
discretion, this court no longer proceeded to rule on this
matter:
In fine, absent any clear showing of grave abuse of
discretion on the part of respondents, this Court - as the
final arbiter of legal controv'!rsies and staunch sentinel
of the rights· of the people - is then without power to
conduct an incursion and me.ddle with such affairs
purely executii;e and legislative in character and nature.
For the Constitution no less, maps out the distinct
boundaries and limits the metes and bounds within
which each of the three political branches of government
may exercise the powers exclusively and essentially
conferred to it by law.128 (Emphasis supplied)
In sum, the extent of the VFA's categorization as
between the Philippine and United States government -
either as a "treaty"/"executive agreement" or as a matter
subject to international comity - remains vague.
Nevertheless, it is certain that the United States have
made a political commitment to recognize the provisions
and execute their obligations under the VFA. This
includes respecting jurisdictional issues in cases
involving an offense committed by a US military
personnel.
Sovereign immunity as customary international law
Customary international law traditionally pertains to:
. . . the collection of international behavioral regularities
that nations over time come to view as binding on them
as a matter of law. This standard definition contain two
elements. There must be a widespread and uniform
practice of nations. And nations must engage in the
practice out of a sense of legal obligation. This second
requirement, often referred to as opinio juris, is the
central concept of CIL. Because opinio juris refers to the
reason why a nation acts in accordance with a behavioral
regularity, it is often described as the "psychological"
element of CIL. It is what distinguishes a national act
done voluntarily or out of comity from one that a nation
follows because required to do so by law. Courts and
scholars say that a longstanding practice among nations
"ripens" or "hardens" into a rule of CIL· when it
becomes accepted by nations as legally
binding.129 (Emphasis supplied, citation omitted)
Nagan and Root130 categorize the doctrine of sovereign
immunity as a customary rule of international law. They
argue that the doctrine, which is also referred to as
j11risdictional immunity, "has its roots in treaties,
domestic statutes, state practice, and the writings of juris
consults".131 Quoting United States law,132 Nagan and
Root state:
. . . . The doctrine of jurisdictional immunity takes the
abstract concept of sovereignty and applies it to facts on
the ground. As the Restatement notes, "Under
international law, a state or state instrumentality is
immune from the jurisdiction of the courts of another
state .... " The Restatement further states unambiguously
that the rule of sovereign immunity is "an undisputed
principle of international law." ...
The doctrine of sovereign immunity is one of the older
concepts in customary international law . . .133 (Emphasis
supplied, citation omitted)
While the doctrine in itself is recognized by states, they
do so only in abstraction.134
There appears to be a general recognition that foreign
states are to be afforded immunity on account of equality
of states, but the "practice" lacks uniformity. Finke
points out that the doctrine as exercised by different
states suffers from. "substantial disagreement on detail
and substance."135 The inconsistencies in state practice
render the possibility of invoking international comity
even more problematic.
35
The legislation of other states highlight the differences in
specific treatment of sovereign immunity. For instance,
the United States Foreign Sovereign Immunities Act
(FSIA) of 1978 was enacted in order to render uniform
determinations in cases involving sovereign
immunity.136 While it recognizes sovereign immunity, it
provides the following exceptions:
... the general principle that a foreign state is immune
from the jurisdiction of the courts of the United States,
but sets forth several limited exceptions. The primary
exceptions are
1. waiver ("the foreign state has waived its
immunity either expressly or by implication"),
2. commercial activity ("the action is based upon
a commercial activity carried on in the United
States by the foreign state"), and
3. torts committed by a foreign official within
the United States (the "suit is brought against a
foreign State for personal injury or death, or
damage to property occurring in the United
States as a result of the ton ious act of an official
or employee of that State acting within the scope
of his office or employment").(Emphasis
supplied, citation omitted)
The United Kingdom State Immunity Act of 1978 also
recognizes general immunity from jurisdiction, subject
to the following exceptions: a) submission to
jurisdiction;137 b) commercial transactions and contracts
to be performed in the United Kingdom;138 c) contracts
of employment;139 d) personal injuries and damage to
property;140 e) ownership, possession, and use of
property;141 f) patents, trademarks, etc.;142 g) membership
of bodies corporate, etc.,143 h) arbitration;144 i) ships used
for commercial purpose;145 and value-added tax, customs
duties, etc.146
The Australian Foreign States Immunities Act of 1985
provides for exceptions similar to the ones found in the
United Kingdom law.147
Aside from the variations in foreign laws, rulings in
domestic cases have also remained on a theoretical level.
There appears to be a general refusal by international
bodies to set particular rules and guidelines for the
disposition of actual cases involving sovereign
immunity.
Two cases are relevant for the purpose of discussing
sovereign immunity as an international customary norm:
the International Court of Justice's decision in Germany
v. Italy, and the International Tribunal for the Law of the
Sea's procedural order on the· Ara Libertad case. While
stare decisis does not apply, these are nevertheless
instructive in understanding the status of sove;:eign
immunity in international law.
The issue of sovereign immunity as invoked between
two States was dealt with in the 2012 case of
Jurisdictional Immunities of the State (Germany v.
Italy).148 This arose out of a civil case brought before
Italian domestic courts, seeking reparations from
Germany for grave breaches of international
humanitarian law during World War II.149 The Italian
Court of Cassation held that it had jurisdiction over the
claims on the ground that state immunity was untenable
if the act complained of was an international
crime.150 Thereafter, an Italian real estate owned by
Germany was attached for execution.151 As a result,
Germany brought the case before the International Court
of Justice, questioning the legality of the judgment
rendered by the Italian court. It based its claim on state
immunity.152
The International Court of Justice ruled that Italy had
violated customary international law when it took
cognizance of the claim against Germany before its local
courts.153 It held that:
In the present context, State practice of particular
significance is to be found in the judgments of national
courts faced with the question whether a foreign State is
immune, the legislation of those States which have
enacted statutes dealing with immunity, the claims to
immunity advanced by States before foreign courts and
the statements made by States, first in the co·urse of the
extensive study of the subject by the Interi1ational Law
Commission and then in the context of the adoption of
the United Nations Convention. Opinio juris in this
context is reflected in particular in the assertion by States
claiming immunity that international law accords them a
right to such immunity from the jurisdiction of other
States; in the acknowledgment, by States granting
immunity, that inter- national law imposes upon them an
obligation to do so; and, conversely, in the assertion by
States in other cases of a right to exercise jurisdiction
over foreign States. While it may be true that States
sometimes decide to accord an imrilunity more extensive
than that required by international law, for present
purposes, the point is that the grant of immunity in such
a case is not accompanied by the requisite opinio juris
and therefore sheds no light upon the issue currently
under consideration by the Court.
56. Although there has been much debate
regarding the origins of State immunity and the
identification of the principles underlying that
immunity in the past, the International Law
Commission concluded in 1980 that the rule of
State immunity had been "adopted as a general
rule of customary international law solidly
rooted in the current practice of States"
(Yearbook of the International Law
Commission, 1980, Vol. II (2), p. 147, para. 26).
That conclusion was based upon an extensive
survey of State practice and, in the opinion of
the Court, is confirmed by the record of national
legislation, judicial decisions, assertions of a
right to immunity and the comments of States on
what became the United Nations Convention.
That practice shows that, whether in claiming
immunity for themselves or according it to
others, States generally proceed on the basis that
there is a right to immunity under international
law, together with a corresponding obligation on
the part of other States to respect and give effect
to that immunity.
36
 57. The Court considers that the rule ofState
immunity occupies an important place in
international law ·and international relations. It
derives from tf!e principle of sovereign equality
of States, which, as Article 2, paragraph 1, of the
Charter of the United Nations makes dear, is one
of the fundamental principles of the international
legal order.
This principle .has to be viewed together with the
principle that each .State possesses sovereignty over its
own territory and that there flows from that sovereignty
the jurisdiction of the State over events and persons
within that territory. Exceptions to the immunity of the
State represent a departure from the principle of
sovereign equality. Immunity may represent a departure
from the principle of territorial sovereignty and the
jurisdiction which flows from it. (Emphasis supplied) 154
The International Court of Justice deemed it unnecessary
to discuss the difference between the application of
sovereign imuunity in sovereign acts (jus imperii) and
non-sovereign activities (jus gestionis) of a State. 155 As
to the argument that a serious violation of international
law or peremptory nonns (jus cogens) is an exception to
sovereign immunity, the International Court.of Justice
held that:
82. At the outset, however, the Court must
observe that the proposition that the availability
of immunity will be to some. extent dependent
upon the gravity of the unlawful act presents a
logical problem. Immunity from jurisdiction is
an immunity not merely from being subjected to
an adverse judgment but from being subjected to
the trial process. It is, therefore, necessarily
preliminary in nature. Consequently, a national
court is required to determine whether or not
aforeign State is entitled to immunity as a matter
of international law before it can hear the merits
of the case brought before it and before the facts
have been established. If immunity were to be
dependent upon the State actually having
committed a serious violation of international
human rights law or the law of armed conflict,
then it would become necessary for the national
court to hold an enquiry into the merits in order
to determine whether it had jurisdiction. If, on
the other hand, the mere allegation that the State
had committed such wrongful acts were to be
sufficient to deprive tlte State of its entitlement
to immunity, immunity could, in effect be
negated simply by skilful construction of tlte
claim.
83. That said, the Comi must nevertheless
inquire whether customary international law has
developed to the point where a State is not
entitled to immunity in the case of serious
violations of human rights law or the law of
anped conflict. Apart from the decisions of the
Italian courts which are the subject of the
present proceedings, there is almost no State
practice which might be considered to support
the proposition that a State is deprived of its
entitlement to immunity in such a case....
84. In addition, there is a substantial body of
State practice from other countries which
demonstrates that customary international law
does not treat a State's entitlement to immunity
as dependent upon the gravity of the act of
which it is accused or the peremptory nature of
the rule which it is alleged to ltave violated.
85. That practice is particularly evident in the
judgments of national courts. Arguments to the
effect that international law no longer required
State immunity in cases of allegations of serious
violations of international human rights law, war
crimes or crimes against humanity have been
rejected by the courts in Canada (Bouzari v.
Islamic Republic of Iran, Court of Appeal of
Ontario, (2004] Dominion Law Reports (DLR),
4th Series, Vol. 243, p. 406; ILR, Vol. 128, p.
586; allegations of torture), France 1judgment of
the Court of Appeal of Paris, 9 September 2002,
and Cour de cassation, No. 02-45961, 16
December 2003, Bulletin civil de la Cour de
cassation (Bull. civ.), 2003, I, No. 258, p. 206
(the Bucheron case); Cour de cassation, No. 03-
41851, 2 June 2004, Bull. civ., 2004, I, No. 158,
p. 132 (the X case) and Cour de cassation, No.
04-47504, 3 January 2006 (the Grosz case);
allegations of crimes against huni.anity),
Slovenia (case No. Up-13/99, Constitutional
Court of Slovenia; allegations of war crimes and
crimes against humanity), New Zealand (Fang v.
Jiang, High Court, (2007] New Zealand
Administrative Reports (NZAR), p. 420; ILR,
Vol. 141, p. 702; allegations of torture), Poland
(Natoniewski, Supreme Court, 2010, Polish
Yearbook of International Law, Vol. XXX,
2010, p. 299; allegations of war crimes and
crimes against humanity) and the United
Kingdom (Jones v. Saudi Arabia, House of
Lords, (2007] 1 Appeal Cases (AC) 270; !LR,
Vol. 129, p. 629; allegations of torture).
....
93. This argument therefore depends upon the
existence of a conflict between a rule, or rules,
of jus co gens, and the rule of customary law
which requires one State to accord immunity to
another. In the opinion of the Court, however, no
such conflict exists. Assuming for this purpose
that the rules of the law of armed conflict which
prohibit the murder of civilians in occupied
territory, the deportation of civilian inhabitunts
to slave labour and the deportation of prisoners
of war to slave labour are rules of jus co gens,
there is no conflict between those ml es and the
rules on State immunity. The two sets of rules
address different matters. Tlte rules of State
immunity are procedural in character and are
confined to determining whether or not tlte
courts of one State may exercise jurisdiction in
respect of another State. They do not bear upon
tile question whether or not the conduct in
respect of which the proceedings are brought
was lawful or unlawful. That is why the
application of the con-temporary law of State
37
 immunity to proceedings concerning events
which occurred in 1943-1945 does not infringe
the principle that law should not be applied
retrospectively to determine matters of legality
and responsibility (as the Court has explained in
paragraph 58 above). For the same reason,
recognizing the immunity of a foreign State in
accordance with customary international law
does not amount to recognizing as law/ ul a
situation created by the breach of a jus cogens
rule, or rendering aid and assistance in
maintaining that situation, and so cannot
contravene the principle in Article 41 of the
International Law Commission's Articles on
State Responsibility.
95. To the extent that it is argued that no rule
which is not of the status of jus cogens may be
applied if to do so would hinder the enforcement
of a jus cogens rule, even in the absence of a
direct conflict, the Court sees no basis for such a
proposition. A)us co gens rule is one from which
no derogation is permitted but the rules which
determine the scope and extent of jurisdiction
and when that jurisdiction may be exercis"ed do
not derogate from those substantive rules which
possess jus cogens status, nor is there anything
inherent in the concept of jus cogens which
would require their modification or would
displace their application. The Court has taken
that approach in two · cases, notwithstanding
that the effect was that a means by which a }us
cogens rule might be enforced was rendered
unavailable. In Armed Activities, it held that the
fact that a rule has the status of jus cogens does
not confer upon the Court a jurisdiction which it
would not otherwise possess (Armed Activities
on the Territory of the Congo (New Application:
2002) (Democratic Republic of the Congo v.
Rwanda), Jurisdiction and Admissibility,
Judgment, ICJ Reports 2006, p. 32, para. 64, and
p. 52, para. 125). In Arrest Warrant, the Court
held, albeit without express reference to the
concept of jus cogens, that the fact that a
Minister for Foreign Affairs was accused of
criminal violations of rules which undoubtedly
possess the character of jus cogens did n;ot
deprive the Democratic Republic of the Congo
of, the entitlement which it possessed as a matter
of customary international law to demand
immunity on his behalf (Arrest. Warrant of 11
April 2000 (Democratic Republic of the Congo
v. Belgium), Judgment, JC.J Reports 2002, p.
24, para. 58, and p. 33, para. 78). The Court
considers that the same reasoning is applicable
to the application of the customary international
law regardins the immunity of one State from
proceedings in the courts of another.156
Though pertaining to provisional measures, another case
that involved the issue of sovereign immunity is the "Ara
Libertad", case (Argentina v. Ghana). Lodged before the
International Tribunal for the Law of the Sea (ITLOS),
the case arose after "ARA Fragata Libertad," an
Argentinian warship, was alleged to have been detained
and subjected to several judicial measures by the
Republic of Ghana.157 In doing so, Argentina alleged that
Ghana violated the immunities from jurisdiction and
execution extended to the warship by its flag. 158
Ghana countered:
. . . that the coastal State [Ghana] enjoys full territorial
sovereignty over internal waters, and that any foreign
vessel located in internal waters is subject to the
legislative, admihistrative, judicial and jurisdicti'onal
powers of the coastal State."159 (Emphasis supplied)
The order dated December 15, 2012 ruled the following:
... that a warship is an expression of the sovereignty of
the State whose flag it flies;160
... in accordance with general international law, a
warship enjoys immunity, including in intedrnal
waters ....161
....
Ghana shall forthwith and unconditionally release the
frigate ARA Liberiad, shall ensure that the frigate ARA
Libertad, its Commander and crew are able to leave the
port of Terna and the maritime areas under the
jurisdiction of Ghana, and shall ensure that the frigate
ARA Libertad is resupplied to that end.162 (Citation
supplied)
In sum, the Jntemational Court of Justice's position that
sovereign immunity remains applicable even if the
action is based upon violations of international law
should be limited only to acts during armed conflict.
Jurisdictional Immunities of the State (Germany v. Italy)
also referred to actions commited during World War II
and especially referred to the situation of international
law at that time. The majority reflected the attitude that
sovereig:J. immunity is a customary norm. It, however,
recognizes that unifoimity in state practice is far from
the consensus required to articulate specific rules
pertaining to other circumstances - such as
transgressions of foreign warships of domestic
legislation while granted innocent passage. It, impliedly
accepted that states enjoyed wide latitude to specify their
own norms.
The provisional order in the ITLOS Ara Libertad case
should also be read within its factual ambient. That is,
that the warship was the subject of seizure to enforce a
commercial obligation of its flag state. In this case, the
foreign warship enjoys sovereign immunity. The case,
however, did not interpret Sections 31 and 32 of the UN
CLOS.
On this note, it is· my opinion that there would be no
violation of customary-international law or existing
treaty law if this court further refines the limits of the
doctrine of sovereign immunity's application when
determining jurisdictional immunities of foreign
warships specifically when it violates domestic laws
implementing international obligations even while on
innocent passage.
38
Sovereign immunity as general principle of law
There are indications from international legal scholars
that sovereign immunity might make more sense if it is
understood as a general principle of international law
rather than as international obligation arising out of
treaty or customary norm.
Finke suggests that this provides the better platform.
Whereas a rule is more precise and consistent in both its
application and legal consequences, a principle "allows
for a broader spectrum of possible
behaviour."163 Principles recognize a general idea and
serve as a guide in policy determinations, rather than
prescribe a particular mode of action, which is what
rules do. This distinction is significant, as principles
provide the leeway to accommodate legal and factual
circumstances surrounding each case that customary
rules generally do not.164 General principles of
international law are said to be:
... an autonomous, created by general consensus,
systematically fundamental part of International Law,
that consists of different normative notions, in which
judges refer to, through a creative process, in order to
promote the consistency of International Law. 165
Clearly, sovereign immunity is a doctrine recognized by
states under the international law system. However, its
characterization as a principle is more appropriate in that
"the extent to which foreign states are awarded immunity
dffers from state to state."166 This appears to be an
accepted arrangement in light of the different state
immunity laws .all over the world.
As it stands, states are allowed to draw the line in the
application of sovereign immunity in cases involving
foreign states and their agents. As a principle of
international law, it is deemed automatically
incorporated in our domestic legal system as per Article
II, Section 2 of the Constitution.
Considering this leeway, along with the urgency and
importance of the case at hand, the Philippines is,
therefore, free to provide guidelines consistent with
international law, domestic legislation, and existing
jurisprudence.
Exceptions to sovereign immunity
Our own jurisprudence is consistent with the
pronouncement that the doctrine of sovereign immunity
is not an absolute rule. Thus, the doctrine should take the
form of relative sovereign jurisdictional immunity.167
The tendency in our jurisprudence moved along with the
development in other states.
States began to veer away from absolute sovereign
immunity when "international trade increased and
governments expanded into what had previously been
private spheres."168 The relative theory of sovereign
immunity distinguishes a state's official (acta jure
imperii) from private (acta Jure gestionis conduct. 169 The
distinction is founded on the premise "[that] once the
sovereign has descended from his throne and entered the
marketplace[,] he has divested himself of his sovereign
status and is therefore no longer immune to the domestic
jurisdiction of the courts of other countries."170
In the 2003 case of Republic of Indonesia v. Vinzon, this
court enunciated that in cases involving foreign states,
the basis of sovereign immunity is the maxim par in
parem non habet imperium. Founded on sovereign
equality, a state cannot assert its jurisdiction over
another.171 To do so otherwise would "unduly vex the
peace of nations."172 However, it also m1derscored that
the doctrine only applies to public acts or acts Jure
imperii, thus, referring to the relative theory. JUSMAG
Philippines v. NLRC173 discussed the restrictive
application:
In this jurisdiction, we recognize and adopt the generally
accepted principles of international law as part of the law
of the land. Immunity of State from suit is one of tltese
universally recognized principles. In international law,
"immunity" is commonly understood as an exemption of
the state and its organs from the judicial jurisdiction of
another state. This is anchored on the principle of the
sovereign equality of states under which one state cannot
assert jurisdiction over another in violation of the maxim
par in parem non habet imperium (an equal has
no .power over an equal).
....
As it stands now, the application of the doctrine of
immunity from suit has been restricted to sovereign or
governmental activities (jure imperii). The mantle of
state immunity cannot be extended to commercial,
private and proprietary acts (jure gestionis). 174 (Emphasis
supplied, citations omitted)
In United States of America v. Ruiz,175 which dealt with
a contract involving the repair of wharves in Subic Bay's
US naval installation, this court further adds that: ... the
correct test for the application of State immunity is not
the conclusion of a contract by a State but the legal
nature of the act....176 (Emphasis supplied)
In JUSMAG, this court stated:
. . . if the contract was entered; into in the discharge of
its governmental functions, the sovereign state cannot be
deemed to have waived its immunity from
suit.177 (Emphasis supplied, citation omitted)
These cases involved contracts. This made the
determination of whether there was waiver on the part of
the state simpler.
Further in Municipality of San Fernando, La Union v.
Firme,178 this court stated that two exceptions are a)
when the State gives its consent to be sued and b) when
it enters into a business contract.179 It ruled that:
Express consent may be embodied in a general law or a
special law.
....
39
Consent is implied when the government enters into
business contracts, thereby descending to the levei of the
other contracting party, and also when the State files a
complaint, thus opening itself to a
counterclaim.180 (Emphasis supplied, citations omitted)
Other exceptions are cases involving acts unauthorized
by the State, and violation of rights by the impleaded
government official. In the 1970 case of Director of
Bureau of Telecommunications, et al. v. Aligaen, et
al.,181 this court held that:
Inasmuch as the State authorizes only legal acts by its
officers, unau'tlwrized acts of government officials or
officers are not acts of the State, and an action against
the officials or officers by one whose rights have been
invaded or violated by such acts, for the protection of his
rights, is not a suit against the State within the rule of
immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a
State officer or the director of a State department on the
ground that, while claiming to act for the State, he
violates or invades tile personal and property rights of
the plaintiff, under an unconst.itutional act or under an
assumption of authority which he does not har·e, is not a
suit against the State within the constitutional provision
that the State may not be sued without its
coment.182 (Emphasis supplied, citations omitted)
Shauf v. Court of Appeals183 evolved the doctrine further
as it stated that "[the] rational for this ruling is that the
doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice."184
Tortious acts or crimes committed while discharging
official functions are also not covered by sovereign
immunity. Quoting the ruling in Chavez v.
Sandiganbayan,185 this court held American naval
officers personally liable for damages in Wylie v.
Rarang,186 to wit:
. . . The petitioners, however, were negligent because
under their direction they issued the publication without
deleting the name "Auring." Such act or omission is ultra
vires and cannot be part of official duty. It was a tortious
act which ridiculed the private respondent.187
We note that the American naval officers were held to be
accountable in their personal capacities. 188
As it stands, the Philippines has no law on the
application of sovereign irnmunity in cases of damages
and/or violations of domestic law involving agents of a
foreign state. But our jurisprudence does have openings
to hold those who have committed an act ultra vires
responsible in our domestic courts.
As previously discussed, it was held in Germany v. Italy
that the issue of implied waiver of sovereign immunity
and a State’s commission of a serious violation of a
peremptory norm (jus co gens) are two independent
areas. This reflects one of the positions taken by scholars
in the jurisdictionimmunity discourse:
Jurisdiction and its limits have developed differently
depending on the subject matter. The jurisdiction to
adjudicate in civil matters has, for example, developed
mainly in the context of private international law, even
though it is not unrelated to public international law.
Immunity, on the other hand, is linked to official acts of
a state (if we accept the principal distinction between
private and public acts) and is therefore more sensitive to
the sovereignty of the foreign state. Linking immunity to
the limits of jurisdiction to adjudicate in civil matters
would therefore mean disregarding the official character
of the foreign state's conduct.189 (Emphasis supplied,
citation omitted)
This ruling holds no value as a precedent, and, therefore,
does not precluc;le the Philippines to make a
determination that may be different from the
International Court of Justice's ruling. Its value must
only be to elucidate on the concept of sovereign
immunity, in the context of that case, as the general rule
with the possibility of other exceptions.
Furthermore, if we consider the doctrine of sovereign
immunity as a binding general principle of international
law rather than an international customary norm, the
particular rules and guidelines in its application and
invocation may be determined on a domestic level either
through statute or by jurisprudence.
It is difficult to imagine that the recognition of equality
among nations is still, in these modern times, as absolute
as we have held it to be in the past or only has
commercial acts as an exception. International law has
conceded jus cogens rules of international law and other
obligations erga omnes. It is time that our domestic
jurisprudence adopts correspondingly. Considering the
flexibility in international law and the doctrines that we
have evolved so far, I am of the view that immunity does
not necessarily apply to all the foreign respondents
should the case have been brought in a timely manner,
with the proper remedy, and in the proper court. Those
who have directly and actually committed culpable acts
or acts resulting rom gross negligence resulting in the
grounding of a foreign warship in violation of our laws
defining a tortious act or one that protects the
environment which implement binding international
obligations cannot claim sovereign immunity.
Certainly, this petition being moot and not brought by
the proper parties, I agree that it is not the proper case
where we can lay down this doctrine. I, therefore, can·
only concur in the result.
ACCORDINGLY, I vote to DISMISS the petition.
MARVIC M.V.F. LEONEN
Associate Justice
40
EN BANC
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, et
al., Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as
Secretary of the Department of Energy (DOE), et
al. Respondents.
x-----------------------x
G.R. No. 181527
CENTRAL VISAYAS FISHERFOLK
DEVELOPMENT CENTER (FIDEC), et
al., Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as
Secretary of the Department of Energy (DOE), et
al., Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before Us are two consolidated Petitions filed under
Rule 65 of the 1997 Rules of Court, concerning Service
Contract No. 46 (SC-46), which allowed the exploration,
development, and exploitation of petroleum resources
within Tañon Strait, a narrow passage of water situated
between the islands of Negros and Cebu.2
The Petition docketed as G.R. No. 180771 is an original
Petition for Certiorari, Mandamus, and Injunction, which
seeks to enjoin respondents from implementing SC-46
and to have it nullified for willful and gross violation of
the 1987 Constitution and certain international and
municipal laws.3
Likewise, the Petition docketed as G.R. No. 181527 is an
original Petition for Certiorari, Prohibition, and
Mandamus, which seeks to nullify the Environmental
Compliance Certificate (ECC) issued by the
Environmental Management Bureau (EMB) of the
Department of Environment and Natural Resources
(DENR), Region VII in connection with SC-46; to
prohibit respondents from implementing SC-46; and to
compel public respondents to provide petitioners access
to the pertinent documents involving the Tañon Strait
Oil Exploration Project.4
ANTECEDENT FACTS AND PROCEEDINGS
Petitioners in G.R. No. 180771, collectively referred to
as the "Resident Marine Mammals" in the petition, are
the toothed whales, dolphins, porpoises, and other
cetacean species, which inhabit the waters in and around
the Tañon Strait. They are joined by Gloria Estenzo
Ramos (Ramos) and Rose-Liza Eisma-Osorio (Eisma-
Osorio) as their legal guardians and as friends (to be
collectively known as "the Stewards") who allegedly
empathize with, and seek the protection of, the
aforementioned marine species. Also impleaded as an
unwilling co-petitioner is former President Gloria
Macapagal-Arroyo, for her express declaration and
undertaking in the ASEAN Charter to protect the Tañon
Strait, among others.5
Petitioners in G.R. No. 181527 are the Central Visayas
Fisherfolk Development Center (FIDEC), a non-stock,
non-profit, non-governmental organization, established
for the welfare of the marginal fisherfolk in Region VII;
and Cerilo D. Engarcial (Engarcial), Ramon Yanong
(Yanong) and Francisco Labid (Labid), in their personal
capacities and as representatives of the subsistence
fisherfolk of the municipalities of Aloguinsan and
Pinamungajan, Cebu.
Named as respondents in both petitions are the late
Angelo T. Reyes, as then Secretary of the Department of
Energy (DOE); Jose L. Atienza, as then Secretary of the
DENR; Leonardo R. Sibbaluca, as then DENRRegional
Director for Region VII and Chairman of the Tañon
Strait Protected Seascape Management Board; Japan
Petroleum Exploration Co., Ltd. (JAPEX), a company
organized and existing under the laws of Japan with a
Philippine branch office; and Supply Oilfield Services,
Inc. (SOS), as the alleged Philippine agent of JAPEX.
In G.R. No. 181527, the following were impleaded as
additional public respondents: Alan C. Arranguez
(Arranguez) and Antonio Labios (Labios), in their
capacities as then Director of the EMB, Region VII and
then Regional Director of the DOE, Region VII,
respectively.6
On June 13, 2002, the Government of the Philippines,
acting through the DOE, entered into a Geophysical
Survey and Exploration Contract-I 02 (GSEC-102) with
JAPEX. This contract involved geological and
geophysical studies of the Tañon Strait. The studies
included surface geology, sample analysis, and
reprocessing of seismic and magnetic data. JAPEX,
assisted by DOE, also conducted geophysical and
satellite surveys, as well as oil and gas sampling in
Tañon Strait.7
On December 21, 2004, DOE and JAPEX formally
converted GSEC-102 into SC-46 for the exploration,
development, and production of petroleum resources in a
block covering approximately 2,850 square kilometers
offshore the Tañon Strait.8
From May 9 to 18, 2005, JAPEX conducted seismic
surveys in and around the Tañon Strait. A multi-channel
sub-bottom profiling covering approximately 751
kilometers was also done to determine the area's
underwater composition.9
JAPEX committed to drill one exploration well during
the second sub-phase of the project. Since the well was
to be drilled in the marine waters of Aloguinsan and
Pinamungajan, where the Tañon Strait was declared a
protected seascape in 1988,10 JAPEX agreed to comply
with the Environmental Impact Assessment requirements
pursuant to Presidential Decree No. 1586, entitled
41
"Establishing An Environmental Impact Statement
System, Including Other Environmental Management
Related Measures And For Other Purposes."11
On January 31, 2007, the Protected Area Management
Board12 of the Tañon Strait (PAMB-Tañon Strait) issued
Resolution No. 2007-001,13 wherein it adopted the Initial
Environmental Examination (IEE) commissioned by
JAPEX, and favorably recommended the approval of
JAPEX's application for an ECC.
On March 6, 2007, the EMB of DENR Region VII
granted an ECC to the DOE and JAPEX for the offshore
oil and gas exploration project in Tañon Strait. 14 Months
later, on November 16, 2007, JAPEX began to drill an
exploratory well, with a depth of 3,150 meters, near
Pinamungajan town in the western Cebu Province.15 This
drilling lasted until February 8, 2008.16
It was in view of the foregoing state of affairs that
petitioners applied to this Court for redress, via two
separate original petitions both dated December 1 7,
2007, wherein they commonly seek that respondents be
enjoined from implementing SC-46 for, among others,
violation of the 1987 Constitution.
On March 31, 2008, SOS filed a Motion to Strike17 its
name as a respondent on the ground that it is not the
Philippine agent of JAPEX. In support of its motion, it
submitted the branch office application of
JAPEX,18 wherein the latter's resident agent was clearly
identified. SOS claimed that it had acted as a mere
logistics contractor for JAPEX in its oil and gas
exploration activities in the Philippines.
Petitioners Resident Marine Mammals and Stewards
opposed SOS' s motion on the ground that it was
premature, it was pro-forma, and it was patently dilatory.
They claimed that SOS admitted that "it is in law a (sic)
privy to JAPEX" since it did the drilling and other
exploration activities in Tañon Strait under the
instructions of its principal, JAPEX. They argued that it
would be premature to drop SOS as a party as JAPEX
had not yet been joined in the case; and that it was
"convenient" for SOS to ask the Court to simply drop its
name from the parties when what it should have done
was to either notify or ask JAPEX to join it in its motion
to enable proper substitution. At this juncture, petitioners
Resident Marine Mammals and Stewards also asked the
Court to" implead JAPEX Philippines as a corespondent
or as a substitute for its parent company, JAPEX. 19
On April 8, 2008, the Court resolved to consolidate G.R.
No. 180771 and G.R. No. 181527.
On May 26, 2008, the FIDEC manifested20 that they
were adopting in toto the Opposition to Strike with
Motion to Implead filed by petitioners Resident Marine
Mammals and Stewards in G.R. No. 180771.
On June 19, 2008, public respondents filed their
Manifestation21 that they were not objecting to SOS's
Motion to Strike as it was not JAPEX's resident agent.
JAPEX during all this time, did not file any comment at
all.
Thus, on February 7, 2012, this Court, in an effort to
ensure that all the parties were given ample chance and
opportunity to answer the issues herein, issued a
Resolution directing the Court's process servicing unit to
again serve the parties with a copy of the September 23,
2008 Resolution of the Court, which gave due course to
the petitions in G.R. Nos. 180771 and 181527, and
which required the parties to submit their respective
memoranda. The February 7, 2012 Resolution22 reads as
follows:
G.R. No. 180771 (Resident Marine Mammals of the
Protected Seascape Tañon Strait, e.g., Toothed Whales,
Dolphins, Porpoises and Other Cetacean Species, et al.
vs. Hon. Angelo Reyes, in his capacity as Secretary of
the Department of Energy, et al.) and G.R. No. 181527
(Central Visayas Fisherfolk Development Center, et al.
vs. Hon. Angelo Reyes, et al.). - The Court Resolved to
direct the Process Servicing Unit to RE-SEND the
resolution dated September 23, 2008 to the following
parties and counsel, together with this resolution:
Atty. Aristeo O. Carino 20th Floor Pearlbank
Counsel for Respondent Centre
Supply 146 Valero Street
Oilfield Services, Inc. Salcedo Village, Makati
City
JAPEX Philippines Ltd. 20th Floor Pearlbank
Centre
146 Valero Street
Salcedo Village, Makati
City
JAPEX Philippines Ltd. 19th Floor Pearlbank
c/o Atty. Maria Farah Z.G. Centre
Nicolas-Suchianco 146 Valero Street
Salcedo Village, Makati
City
Atty. Maria Farah Z.G. Suite 2404 Discovery
Nicolas-Suchianco Centre
Resident Agent of JAPEX 25 ADB Avenue
Philippines Ltd. Ortigas Center, Pasig
City
This Resolution was personally served to the above
parties, at the above addresses on February 23, 2012. On
March 20, 2012, JAPEX Philippines, Ltd. (JAPEX PH),
by way of special appearance, filed a Motion to
Admit23 its Motion for Clarification,24 wherein JAPEX
PH requested to be clarified as to whether or not it
should deem the February 7, 2012 Resolution as this
Court's Order of its inclusion in the case, as it has not
been impleaded. It also alleged that JAPEX PH had
already stopped exploration activities in the Taft. on
Strait way back in 2008, rendering this case moot.
On March 22, 2012, JAPEX PH, also by special
appearance, filed a Motion for Extension of Time25 to
file its Memorandum. It stated that since it received the
February 7, 2012 Resolution on February 23, 2012, it
had until March 22, 2012 to file its Memorandum.
JAPEX PH then asked for an additional thirty days,
supposedly to give this Court some time to consider its
Motion for Clarification.
42
On April 24, 2012, this Court issued a
Resolution26 granting JAPEX PH's Motion to Admit its
Motion for Clarification. This Court, addressing JAPEX
PH's Motion for Clarification, held:
With regard to its Motion for Clarification (By Special
Appearance) dated March 19, 2012, this Court considers
JAPEX Philippines, Ltd. as a real party-in-interest in
these cases. Under Section 2, Rule 3 of the 1997 Rules
of Court, 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. Contrary to
JAPEX Philippines, Ltd. 's allegation that it is a
completely distinct corporation, which should not be
confused with JAPEX Company, Ltd., JAPEX
Philippines, Ltd. is a mere branch office, established by
JAPEX Company, Ltd. for the purpose of carrying out
the latter's business transactions here in the Philippines.
Thus, JAPEX Philippines, Ltd., has no separate
personality from its mother foreign corporation, the
party impleaded in this case.
Moreover, Section 128 of the Corporation Code provides
for the responsibilities and duties of a resident agent of a
foreign corporation:
SECTION 128. Resident agent; service of process. - The
Securities and Exchange Commission shall require as a
condition precedent to the issuance of the license to
transact business in the Philippines by any foreign
corporation that such corporation file with the Securities
and Exchange Commission a written power of attorney
designating some person who must be a resident of the
Philippines, on whom any summons and other legal
processes may be served in all actions or other legal
proceedings against such corporation, and consenting
that service upon such resident agent shall be admitted
and held as valid as if served upon the duly authorized
officers of the foreign corporation at its home office.
Any such foreign corporation shall likewise execute and
file with the Securities and Exchange Commission an
agreement or stipulation, executed by the proper
authorities of said corporation, in form and substance as
follows:
"The (name of foreign corporation) does hereby stipulate
and agree, in consideration of its being granted by the
Securities and Exchange Commission a license to
transact business in the Philippines, that if at any time
said corporation shall cease to transact business in the
Philippines, or shall be without any resident agent in the
Philippines on whom any summons or other legal
processes may be served, then in any action or
proceeding arising out of any business or transaction
which occurred in the Philippines, service of any
summons or other legal process may be made upon the
Securities and Exchange Commission and that such
service shall have the same force and effect as if made
upon the duly-authorized officers of the corporation at
its home office."
Whenever such service of summons or other process
shall be made upon the Securities and Exchange
Commission, the Commission shall, within ten (10) days
thereafter, transmit by mail a copy of such summons or
other legal process to the corporation at its home or
principal office. The sending of such copy by the
Commission shall be a necessary part of and shall
complete such service. All expenses incurred by the
Commission for such service shall be paid in advance by
the party at whose instance the service is made.
In case of a change of address of the resident agent, it
shall be his or its duty to immediately notify in writing
the Securities and Exchange Commission of the new
address.
It is clear from the foregoing provision that the function
of a resident agent is to receive summons or legal
processes that may be served in all actions or other legal
proceedings against the foreign corporation. These cases
have been prosecuted in the name of JAPEX Company,
Ltd., and JAPEX Philippines Ltd., as its branch office
and resident agent, had been receiving the various
resolutions from this Court, as evidenced by Registry
Return Cards signed by its representatives.
And in the interest of justice, this Court resolved to grant
JAPEX PH's motion for extension of time to file its
memorandum, and was given until April 21, 2012, as
prayed for, within which to comply with the
submission.27
Without filing its Memorandum, JAPEX PH, on May 14,
2012, filed a motion, asking this Court for an additional
thirty days to file its Memorandum, to be counted from
May 8, 2012. It justified its request by claiming that this
Court's April 24, 2012 Resolution was issued past its
requested deadline for filing, which was on April 21,
2012.28
On June 19, 2012, this Court denied JAPEX PH's second
request for additional time to file its Memorandum and
dispensed with such filing.
Since petitioners had already filed their respective
memoranda,29 and public respondents had earlier filed a
Manifestation30 that they were adopting their Comment
dated March 31, 2008 as their memorandum, this Court
submitted the case for decision.
Petitioners.' Allegations
Protesting the adverse ecological impact of JAPEX's oil
exploration activities in the Tañon Strait, petitioners
Resident Marine Mammals and Stewards aver that a
study made after the seismic survey showed that the fish
catch was reduced drastically by 50 to 70 percent. They
claim that before the seismic survey, the average harvest
per day would be from 15 to 20 kilos; but after the
activity, the fisherfolk could only catch an average of 1
to 2 kilos a day. They attribute this "reduced fish catch"
to the destruction of the ''payao," also known as the "fish
aggregating device" or "artificial reef."31 Petitioners
Resident Marine Mammals and Stewards also impute the
incidences of "fish kill"32 observed by some of the local
fisherfolk to the seismic survey. And they further allege
that the ECC obtained by private respondent JAPEX is
invalid because public consultations and discussions
with the affected stakeholders, a pre-requisite to the
43
issuance of the ECC, were not held prior to the ECC's COMMITMENTS TO INTERNATIONAL
issuance. ENVIRONMENTAL LAWS AND
INSTRUMENTS; AND
In its separate petition, petitioner FIDEC confirms
petitioners Resident Marine Mammals and Stewards' IV. WHETHER OR NOT THE ISSUANCE OF
allegations of reduced fish catch and lack of public THE ENVIRONMENTAL COMPLIANCE
consultations or discussions with the fisherfolk and other CERTIFICATE (ECC) IN
stakeholders prior to the issuance of the ECC. Moreover, ENVIRONMENTALLY CRITICAL AREAS
it alleges that during the seismic surveys and drilling, it AND HABITATS OF MARINE WILDLIFE
was barred from entering and fishing within a 7- AND ENDANGERED SPECIES IS LEGAL
kilometer radius from the point where the oilrig was AND PROPER.37
located, an area greater than the 1.5-kilometer radius
"exclusion zone" stated in the IEE.33 It also agrees in the Meanwhile, in G.R. No. 181527, petitioner FIDEC
allegation that public respondents DENR and EMB presented the following issues for our consideration:
abused their discretion when they issued an ECC to
public respondent DOE and private respondent JAPEX I. WHETHER OR NOT SERVICE
without ensuring the strict compliance with the CONTRACT NO. 46 EXECUTED BETWEEN
procedural and substantive requirements under the RESPONDENTS DOE AND JAPEX SHOULD
Environmental Impact Assessment system, the Fisheries BE NULLIFIED AND SET ASIDE FOR
Code, and their implementing rules and regulations.34 It BEING IN DIRECT VIOLATION OF
further claims that despite several requests for copies of SPECIFIC PROVISIONS OF THE 1987
all the documents pertaining to the project in Tañon PHILIPPINE CONSTITUTION AND
Strait, only copies of the P AMB-Tañon Strait APPLICABLE LAWS;
Resolution and the ECC were given to the fisherfolk. 35
II. WHETHER OR NOT THE OFF-SHORE
Public Respondents' Counter-Allegations OIL EXPLORAT[I]ON CONTEMPLATED
UNDER SERVICE CONTRACT NO. 46 ·IS
Public respondents, through the Solicitor General, LEGALLY PERMISSIBLE WITHOUT A LAW
contend that petitioners Resident Marine Mammals and BEING DULY PASSED EXPRESSLY FOR
Stewards have no legal standing to file the present THE PURPOSE;
petition; that SC-46 does not violate the 1987
Constitution and the various laws cited in the petitions; III. WHETHER OR NOT THE OIL
that the ECC was issued in accordance with existing EXPLORATION BEING CONDUCTED
laws and regulations; that public respondents may not be WITHIN THE TAÑON STRAIT PROTECTED
compelled by mandamus to furnish petitioners copies of SEASCAPE VIOLATES THE RIGHTS AND
all documents relating to SC-46; and that all the LEGAL PROTECTION GRANTED TO
petitioners failed to show that they are entitled to PETITIONERS UNDER THE
injunctive relief. They further contend that the issues CONSTITUTION AND APPLICABLE LAWS.
raised in these petitions have been rendered moot and
academic by the fact that SC-46 had been mutually IV. WHETHER OR NOT THE ISSUANCE OF
terminated by the parties thereto effective June 21, THE ENVIRONMENTAL COMPLIANCE
2008.36 CERTIFICATE (ECC) FOR SUCH AN
ENVIRONMENTALLY CRITICAL PROJECT
ISSUES INSIDE AN ENVIRONMENTALLY
CRITICAL AREA SUCH AS THE TAÑON
The following are the issues posited by petitioners STRAIT PROTECTED SEASCAPE
Resident Marine Mammals and Stewards in G.R. No. CONFORMED TO LAW AND EXISTING
180771: RULES AND REGULATIONS ON THE
MATTER.
I. WHETHER OR NOT PETITIONERS HAVE
LOCUS STAND! TO FILE THE INSTANT V. WHETHER OR NOT THE RESPONDENTS
PETITION; MAY BE COMPELLED BY MANDAMUS TO
FURNISH PETITIONERS WITH COPIES OF
II. WHETHER OR NOT SERVICE THE DOCUMENTS PERTAINING TO THE
CONTRACT NO. 46 IS VIOLA T[IVE] OF TAÑON STRAIT OIL EXPLORATION
THE 1987 PHILIPPINE CONSTITUTION PROJECT.38
AND STATUTES;
In these consolidated petitions, this Court has
III. WHETHER OR NOT THE ON-GOING determined that the various issues raised by the
EXPLORATION AND PROPOSED petitioners may be condensed into two primary issues:
EXPLOITATION FOR OIL AND NATURAL
GAS AT, AROUND, AND UNDERNEATH I. Procedural Issue: Locus Standi of the Resident Marine
THE MARINE WATERS OF THE TAÑON Mammals and Stewards, petitioners in G.R. No. 180771;
STRAIT PROTECTED SEASCAPE IS and
INCONSISTENT WITH THE PHILIPPINE

44
II. Main Issue: Legality of Service Contract No. 46.
DISCUSSION
At the outset, this Court makes clear that the "'moot and
academic principle' is not a magical formula that can
automatically dissuade the courts in resolving a case."
Courts have decided cases otherwise moot and academic
under the following exceptions:
1) There is a grave violation of the Constitution;
2) The exceptional character of the situation and
the paramount public interest is involved;
3) The constitutional issue raised requires
formulation of controlling principles to guide the
bench, the bar, and the public; and
4) The case is capable of repetition yet evading
review.39
In this case, despite the termination of SC-46, this Court
deems it necessary to resolve these consolidated
petitions as almost all of the foregoing exceptions are
present in this case. Both petitioners allege that SC-46 is
violative of the Constitution, the environmental and
livelihood issues raised undoubtedly affect the public's
interest, and the respondents' contested actions are
capable of repetition.
Procedural Issues
Locus Standi of Petitioners Resident Marine Mammals
and Stewards
The Resident Marine Mammals, through the Stewards,
"claim" that they have the legal standing to file this
action since they stand to be benefited or injured by the
judgment in this suit.40 Citing Oposa v. Factoran,
Jr.,41 they also assert their right to sue for the faithful
performance of international and municipal
environmental laws created in their favor and for their
benefit. In this regard, they propound that they have the
right to demand that they be accorded the benefits
granted to them in multilateral international instruments
that the Philippine Government had signed, under the
concept of stipulation pour autrui.42
For their part, the Stewards contend that there should be
no question of their right to represent the Resident
Marine Mammals as they have stakes in the case as
forerunners of a campaign to build awareness among the
affected residents of Tañon Strait and as stewards of the
environment since the primary steward, the Government,
had failed in its duty to protect the environment pursuant
to the public trust doctrine.43
Petitioners Resident Marine Mammals and Stewards also
aver that this Court may lower the benchmark in locus
standi as an exercise of epistolary jurisdiction. 44
In opposition, public respondents argue that the Resident
Marine Mammals have no standing because Section 1,
Rule 3 of the Rules of Court requires parties to an action
to be either natural or juridical persons, viz.:
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 term
"plaintiff' may refer to the claiming party, the counter-
claimant, the cross-claimant, or the third (fourth, etc.)-
party plaintiff. The term "defendant" may refer to the
original defending party, the defendant in a
counterclaim, the cross-defendant, or the third (fourth,
etc.)-party defendant.
The public respondents also contest the applicability of
Oposa, pointing out that the petitioners therein were all
natural persons, albeit some of them were still unborn. 45
As regards the Stewards, the public respondents likewise
challenge their claim of legal standing on the ground that
they are representing animals, which cannot be parties to
an action. Moreover, the public respondents argue that
the Stewards are not the real parties-in-interest for their
failure to show how they stand to be benefited or injured
by the decision in this case.46 Invoking the alter ego
principle in political law, the public respondents claim
that absent any proof that former President Arroyo had
disapproved of their acts in entering into and
implementing SC-46, such acts remain to be her own.47
The public respondents contend that since petitioners
Resident Marine Mammals and Stewards' petition was
not brought in the name of a real party-in-interest, it
should be dismissed for failure to state a cause of
action.48
The issue of whether or not animals or even inanimate
objects should be given legal standing in actions before
courts of law is not new in the field o f animal rights and
environmental law. Petitioners Resident Marine
Mammals and Stewards cited the 1972 United States
case Sierra Club v. Rogers C.B. Morton,49 wherein
Justice William 0. Douglas, dissenting to the
conventional thought on legal standing, opined:
The critical question of "standing" would be simplified
and also put neatly in focus if we fashioned a federal rule
that allowed environmental issues to be litigated before
federal agencies or federal courts in the name of the
inanimate object about to be despoiled, defaced, or
invaded by roads and bulldozers and where injury is the
subject of public outrage. x x x. Inanimate objects are
sometimes parties in litigation. A ship has a legal
personality, a fiction found useful for maritime purposes.
The corporation sole - a creature of ecclesiastical law - is
an acceptable adversary and large fortunes ride on its
cases. The ordinary corporation is a "person" for
purposes of the adjudicatory processes, whether it
represents proprietary, spiritual, aesthetic, or charitable
causes.
So it should be as respects valleys, alpine meadows,
rivers, lakes, estuaries, beaches, ridges, groves of trees,
swampland, or even air that feels the destructive
pressures of modem technology and modem life. The
river, for example, is the living symbol of all the life it
sustains or nourishes-fish, aquatic insects, water ouzels,
45
otter, fisher, deer, elk, bear, and all other animals,
including man, who are dependent on it or who enjoy it
for its sight, its sound, or its life. The river as plaintiff
speaks for the ecological unit of life that is part of it.
Those people who have a meaningful relation to that
body of water-whether it be a fisherman, a canoeist, a
zoologist, or a logger-must be able to speak for the
values which the river represents and which are
threatened with destruction.50 (Citations omitted.)
The primary reason animal rights advocates and
environmentalists seek to give animals and inanimate
objects standing is due to the need to comply with the
strict requirements in bringing a suit to court. Our own
1997 Rules of Court demand that parties to a suit be
either natural or juridical persons, or entities authorized
by law. It further necessitates the action to be brought in
the name of the real party-in-interest, even if filed by a
representative, viz.:
Rule 3
Parties to Civil Actions
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 term
"plaintiff' may refer to the claiming party, the counter-
claimant, the cross-claimant, or the third (fourth, etc.)-
party plaintiff. The term "defendant" may refer to the
original defending party, the defendant in a
counterclaim, the cross-defendant, or the third (fourth,
etc.)-party defendant.
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.
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 trust, 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.
It had been suggested by animal rights advocates and
environmentalists that not only natural and juridical
persons should be given legal standing because of the
difficulty for persons, who cannot show that they by
themselves are real parties-in-interests, to bring actions
in representation of these animals or inanimate objects.
For this reason, many environmental cases have been
dismissed for failure of the petitioner to show that he/she
would be directly injured or affected by the outcome of
the case. However, in our jurisdiction, locus standi in
environmental cases has been given a more liberalized
approach. While developments in Philippine legal theory
and jurisprudence have not progressed as far as Justice
Douglas's paradigm of legal standing for inanimate
objects, the current trend moves towards simplification
of procedures and facilitating court access in
environmental cases.
Recently, the Court passed the landmark Rules of
Procedure for Environmental Cases,51 which allow for a
"citizen suit," and permit any Filipino citizen to file an
action before our courts for violations of our
environmental laws:
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.
Citizen suits filed under R.A. No. 8749 and R.A. No.
9003 shall be governed by their respective
provisions.52 (Emphasis ours.)
Explaining the rationale for this rule, the Court, in the
Annotations to the Rules of Procedure for Environmental
Cases, commented:
Citizen suit. To further encourage the protection of the
environment, the Rules enable litigants enforcing
environmental rights to file their cases as citizen suits.
This provision liberalizes standing for all cases filed
enforcing environmental laws and collapses the
traditional rule on personal and direct interest, on the
principle that humans are stewards of nature. The
terminology of the text reflects the doctrine first
enunciated in Oposa v. Factoran, insofar as it refers to
minors and generations yet unborn.53 (Emphasis
supplied, citation omitted.) Although this petition was
filed in 2007, years before the effectivity of the Rules of
Procedure for Environmental Cases, it has been
consistently held that rules of procedure "may be
retroactively applied to actions pending and
undetermined at the time of their passage and will not
violate any right of a person who may feel that he is
adversely affected, inasmuch as there is no vested rights
in rules of procedure."54
Elucidating on this doctrine, the Court, in Systems
Factors Corporation v. National Labor Relations
Commission55 held that:
Remedial statutes or statutes relating to remedies or
modes of procedure, which do not create new or take
away vested rights, but only operate in furtherance of the
remedy or confirmation of rights already existing, do not
come within the legal conception of a retroactive law, or
the general rule against retroactive operation of statutes.
Statutes regulating the procedure of the courts will be
construed as applicable to actions pending and
undetermined at the time of their passage. Procedural
46
laws are retroactive in that sense and to that extent. x x
x.
Moreover, even before the Rules of Procedure for
Environmental · Cases became effective, this Court had
already taken a permissive position on the issue of locus
standi in environmental cases. In Oposa, we allowed the
suit to be brought in the name of generations yet unborn
"based on the concept of intergenerational responsibility
insofar as the right to a balanced and healthful ecology is
concerned."56 Furthermore, we said that the right to a
balanced and healthful ecology, a right that does not
even need to be stated in our Constitution as it is
assumed to exist from the inception of humankind,
carries with it the correlative duty to refrain from
impairing the environment.57
In light of the foregoing, the need to give the Resident
Marine Mammals legal standing has been eliminated by
our Rules, which allow any Filipino citizen, as a steward
of nature, to bring a suit to enforce our environmental
laws. It is worth noting here that the Stewards are joined
as real parties in the Petition and not just in
representation of the named cetacean species. The
Stewards, Ramos and Eisma-Osorio, having shown in
their petition that there may be possible violations of
laws concerning the habitat of the Resident Marine
Mammals, are therefore declared to possess the legal
standing to file this petition.
Impleading Former President Gloria Macapagal-Arroyo
as an Unwilling Co-Petitioner
Petitioners Stewards in G.R. No. 180771 impleaded as
an unwilling co-petitioner former President Gloria
Macapagal-Arroyo for the following reasons, which we
quote:
Her Excellency Gloria Macapagal-Arroyo, also of legal
age, Filipino and resident of Malacailang Palace, Manila
Philippines. Steward Gloria Macapagal-Arroyo happens
to be the incumbent President of the Philippine Islands.
She is personally impleaded in this suit as an unwilling
co-petitioner by reason of her express declaration and
undertaking under the recently signed ASEAN Charter
to protect Your Petitioners' habitat, among others. She is
meantime dominated as an unwilling co-petitioner due to
lack of material time in seeking her signature and
imprimatur hereof and due to possible legal
complications that may hereafter arise by reason of her
official relations with public respondents under the alter
ego principle in political law.58 This is incorrect.
Section 10, Rule 3 of the Rules of Court provides:
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.
Under the foregoing rule, when the consent of a party
who should be joined as a plaintiff cannot be obtained,
he or she may be made a party defendant to the case.
This will put the unwilling party under the jurisdiction of
the Court, which can properly implead him or her
through its processes. The unwilling party's name cannot
be simply included in a petition, without his or her
knowledge and consent, as such would be a denial of due
process.
Moreover, the reason cited by the petitioners Stewards
for including former President Macapagal-Arroyo in
their petition, is not sufficient to implead her as an
unwilling co-petitioner. Impleading the former President
as an unwilling co-petitioner, for an act she made in the
performance of the functions of her office, is contrary to
the public policy against embroiling the President in
suits, "to assure the exercise of Presidential duties and
functions free from any hindrance or distraction,
considering that being the Chief Executive of the
Government is a job that, aside from requiring all of the
office holder's time, also demands undivided attention." 59
Therefore, former President Macapagal-Arroyo cannot
be impleaded as one of the petitioners in this suit. Thus,
her name is stricken off the title of this case.
Main Issue:
Legality of Service Contract No. 46
Service Contract No. 46 vis-a-vis
Section 2, Article XII of the
1987 Constitution
Petitioners maintain that SC-46 transgresses the Jura
Regalia Provision or paragraph 1, Section 2, Article XII
of the 1987 Constitution because JAPEX is 100%
Japanese-owned.60 Furthermore, the FIDEC asserts that
SC-46 cannot be considered as a technical and financial
assistance agreement validly executed under paragraph 4
of the same provision.61 The petitioners claim that La
Bugal-B'laan Tribal Association, Inc. v. Ramos62 laid
down the guidelines for a valid service contract, one of
which is that there must exist a general law for oil
exploration before a service contract may be entered into
by the Government. The petitioners posit that the service
contract in La Bugal is presumed to have complied with
the requisites of (a) legislative enactment of a general
law after the effectivity of the 1987 Constitution (such as
Republic Act No. 7942, or the Philippine Mining Law of
1995, governing mining contracts) and (b) presidential
notification. The petitioners thus allege that the ruling in
La Bugal, which involved mining contracts under
Republic Act No. 7942, does not apply in this case.63 The
petitioners also argue that Presidential Decree No. 87 or
the Oil Exploration and Development Act of 1972
cannot legally justify SC-46 as it is deemed to have been
repealed by the 1987 Constitution and subsequent laws,
which enunciate new policies concerning the
environment.64 In addition, petitioners in G.R. No.
180771 claim that paragraphs 2 and 3 of Section 2,
Article XII of the 1987 Constitution mandate the
exclusive use and enjoyment by the Filipinos of our
natural resources,65 and paragraph 4 does not speak of
service contracts but of FTAAs or Financial Technical
Assistance Agreements.66
The public respondents again controvert the petitioners'
claims and asseverate that SC-46 does not violate
Section 2, Article XII of the 1987 Constitution. They
hold that SC-46 does not fall under the coverage of
47
paragraph 1 but instead, under paragraph 4 of Section 2,
Article XII of the 1987 Constitution on FTAAs. They
also insist that paragraphs 2 and 3, which refer to the
grant of exclusive fishing right to Filipinos, are not
applicable to SC-46 as the contract does not grant
exclusive fishing rights to JAPEX nor does it otherwise
impinge on the FIDEC's right to preferential use of
communal marine and fishing resources.67
Ruling of the Court
On the legality of Service Contract No. 46
vis-a-vis Section 2, Article XII of the 1987 Constitution
The petitioners insist that SC-46 is null and void for
having violated Section 2, Article XII of the 1987
Constitution, which reads as follows:
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 fishworkers 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. (Emphases ours.)
This Court has previously settled the issue of whether
service contracts are still allowed under the 1987
Constitution. In La Bugal, we held that the deletion of
the words "service contracts" in the 1987 Constitution
did not amount to a ban on them per se. In fact, in that
decision, we quoted in length, portions of the
deliberations of the members of the Constitutional
Commission (ConCom) to show that in deliberating on
paragraph 4, Section 2, Article XII, they were actually
referring to service contracts as understood in the 1973
Constitution, albeit with safety measures to eliminate or
minimize the abuses prevalent during the martial law
regime, to wit: Summation of the
ConCom Deliberations
At this point, we sum up the matters established, based
on a careful reading of the Con Com 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 minimize the
abuses prevalent during the marital law regime. In brief,
they were going to permit service contracts with foreign
corporations as contractors, but with safety measures to
prevent abuses, as an exception to the general norm
established in the first paragraph of Section 2 of Article
XII. This provision reserves or limits to Filipino citizens
-- and corporations at least 60 percent of which is owned
by such citizens -- the exploration, development and
utilization of natural resources.
This provision was prompted by the perceived
insufficiency of Filipino capital and the felt need for
foreign investments in the EDU of minerals and
petroleum resources.
The framers for the most part debated about the sort of
safeguards that would be considered adequate and
reasonable. But some of them, having more "radical"
leanings, wanted to ban service contracts altogether; for
them, the provision would permit aliens to exploit and
benefit from the nation's natural resources, which they
felt should be reserved only for Filipinos.
In the explanation of their votes, the individual
commissioners were heard by the entire body. They
sounded off their individual opinions, openly enunciated
their philosophies, and supported or attacked the
provisions with fervor. Everyone's viewpoint was heard.
In the final voting, the Article on the National Economy
and Patrimony -- including paragraph 4 allowing service
contracts with foreign corporations as an exception to
the general norm in paragraph 1 of Section 2 of the same
48
article --was resoundingly approved by a vote of 32 to 7,
with 2 abstentions.
Agreements Involving Technical
Or Financial Assistance Are
Service Contracts with Safeguards
From the foregoing, we are impelled to conclude that the
phrase agreements involving either technical or financial
assistance, referred to in paragraph 4, are in fact service
contracts. But unlike those of the 1973 variety, the new
ones are between foreign corporations acting as
contractors on the one hand; and on the other, the
government as principal or "owner" of the works. In the
new service contracts, the foreign contractors provide
capital, technology and technical know-how, and
managerial expertise in the creation and operation of
large-scale mining/extractive enterprises; and the
government, through its agencies (DENR, MGB),
actively exercises control and supervision over the entire
operation.68
In summarizing the matters discussed in the ConCom,
we established that paragraph 4, with the safeguards in
place, is the exception to paragraph 1, Section 2 of
Article XII. The following are the safeguards this Court
enumerated in La Bugal:
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 in
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.69
Adhering to the aforementioned guidelines, this Court
finds that SC-46 is indeed null and void for
noncompliance with the requirements of the 1987
Constitution.
1. The General Law on Oil Exploration
The disposition, exploration, development, exploitation,
and utilization of indigenous petroleum in the
Philippines are governed by Presidential Decree No. 87
or the Oil Exploration and Development Act of 1972.
This was enacted by then President Ferdinand Marcos to
promote the discovery and production of indigenous
petroleum through the utilization of government and/or
local or foreign private resources to yield the maximum
benefit to the Filipino people and the revenues to the
Philippine Government.70
Contrary to the petitioners' argument, Presidential
Decree No. 87, although enacted in 1972, before the
adoption of the 1987 Constitution, remains to be a valid
law unless otherwise repealed, to wit:
ARTICLE XVIII - TRANSITORY PROVISIONS
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.
If there were any intention to repeal Presidential Decree
No. 87, it would have been done expressly by Congress.
For instance, Republic Act No. 7160, more popularly
known as the Local Government Code of 1991,
expressly repealed a number of laws, including a specific
provision in Presidential Decree No. 87, viz.:
SECTION 534. Repealing Clause. - (a) Batas Pambansa
Blg. 337, otherwise known as the "Local Government
Code," Executive Order No. 112 (1987), and Executive
Order No. 319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508
and such other decrees, orders, instructions,
memoranda and issuances related to or
concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of
Republic Act No. 1939 regarding hospital fund;
Section 3, a (3) and b (2) of Republic Act No.
5447 regarding the Special Education Fund;
Presidential Decree No. 144 as amended by
Presidential Decree Nos. 559 and 1741;
Presidential Decree No. 231 as amended;
Presidential Decree No. 436 as amended by
Presidential Decree No. 558; and Presidential
Decree Nos. 381, 436, 464, 477, 526, 632, 752,
and 1136 are hereby repealed and rendered of no
force and effect.
(d) Presidential Decree No. 1594 is hereby
repealed insofar as it governs locally-funded
projects.
(e) The following provisions are hereby repealed
or amended insofar as they are inconsistent with
the provisions of this Code: Sections 2, 16 and
29 of Presidential Decree No. 704; Section 12 of
Presidential Decree No. 87, as amended;
Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73,
and 74 of Presidential Decree No. 463, as
amended; and Section 16 of Presidential Decree
No. 972, as amended, and
49
 (f) All general and special laws, acts, city
charters, decrees, executive orders,
proclamations and administrative regulations, or
part or parts thereof which are inconsistent with
any of the provisions of this Code are hereby
repealed or modified accordingly. (Emphasis
supplied.)
This Court could not simply assume that while
Presidential Decree No. 87 had not yet been expressly
repealed, it had been impliedly repealed. As we held in
Villareña v. The Commission on Audit,71 "[i]mplied
repeals are not lightly presumed." It is a settled rule that
when laws are in conflict with one another, every effort
must be exerted to reconcile them. In Republic of the
Philippines v. Marcopper Mining Corporation,72 we said:
The two laws must be absolutely incompatible, and a
clear finding thereof must surface, before the inference
of implied repeal may be drawn. The rule is expressed in
the maxim, interpretare et concordare leqibus est
optimus interpretendi, i.e., every statute must be so
interpreted and brought into accord with other laws as to
form a uniform system of jurisprudence. The fundament
is that the legislature should be presumed to have known
the existing laws on the subject and not have enacted
conflicting statutes. Hence, all doubts must be resolved
against any implied repeal, and all efforts should be
exerted in order to harmonize and give effect to all laws
on the subject. (Citation omitted.)
Moreover, in cases where the statute seems to be in
conflict with the Constitution, but a construction that it is
in harmony with the Constitution is also possible, that
construction should be preferred.73 This Court, in
Pangandaman v. Commission on Elections74 expounding
on this point, pronounced:
It is a basic precept in statutory construction that a
statute should be interpreted in harmony with the
Constitution and that the spirit, rather than the letter of
the law determines its construction; for that reason, a
statute must be read according to its spirit and intent. x x
x. (Citation omitted.)
Consequently, we find no merit in petitioners' contention
that SC-46 is prohibited on the ground that there is no
general law prescribing the standard or uniform terms,
conditions, and requirements for service contracts
involving oil exploration and extraction.
But note must be made at this point that while
Presidential Decree No. 87 may serve as the general law
upon which a service contract for petroleum exploration
and extraction may be authorized, as will be discussed
below, the exploitation and utilization of this energy
resource in the present case may be allowed only
through a law passed by Congress, since the Tañon Strait
is a NIPAS75 area.
2. President was not the signatory to SC-46 and the same
was not submitted to Congress
While the Court finds that Presidential Decree No. 87 is
sufficient to satisfy the requirement of a general law, the
absence of the two other conditions, that the President be
a signatory to SC-46, and that Congress be notified of
such contract, renders it null and void.
As SC-46 was executed in 2004, its terms should have
conformed not only to the provisions of Presidential
Decree No. 87, but also to those of the 1987
Constitution. The Civil Code provides: ARTICLE 1306.
The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law,
morals, good customs, public order, or public policy.
(Italics ours.)
In Heirs of San Miguel v. Court of Appeals,76 this Court
held that:
It is basic that the law is deemed written into every
contract. Although a contract is the law between the
parties, the provisions of positive law which regulate
contracts are deemed written therein and shall limit and
govern the relations between the parties. x x x. (Citations
omitted.) Paragraph 4, Section 2, Article XII of the 1987
Constitution requires that the President himself enter into
any service contract for the exploration of petroleum.
SC-46 appeared to have been entered into and signed
only by the DOE through its then Secretary, Vicente S.
Perez, Jr., contrary to the said constitutional requirement.
Moreover, public respondents have neither shown nor
alleged that Congress was subsequently notified of the
execution of such contract.
Public respondents' implied argument that based on the
"alter ego principle," their acts are also that of then
President Macapagal-Arroyo's, cannot apply in this case.
In Joson v. Torres,77 we explained the concept of the
alter ego principle or the doctrine of qualified political
agency and its limit in this wise:
Under this doctrine, which recognizes the establishment
of a single executive, all executive and administrative
organizations are adjuncts of the Executive Department,
the heads of the various executive departments are
assistants and agents of the Chief Executive, and, except
in cases where the Chief Executive is required by the
Constitution or law to act in person or the exigencies of
the situation demand that he act personally, the
multifarious executive and administrative functions of
the Chief Executive are performed by and through the
executive departments, and the acts of the Secretaries of
such departments, performed and promulgated in the
regular course of business, are, unless disapproved or
reprobated by the Chief Executive presumptively the
acts of the Chief Executive. (Emphasis ours, citation
omitted.)
While the requirements in executing service contracts in
paragraph 4, Section 2 of Article XII of the 1987
Constitution seem like mere formalities, they, in reality,
take on a much bigger role. As we have explained in La
Bugal, they are the safeguards put in place by the
framers of the Constitution to "eliminate or minimize the
abuses prevalent during the martial law regime." 78 Thus,
they are not just mere formalities, which will only render
a contract unenforceable but not void, if not complied
with. They are requirements placed, not just in an
50
ordinary statute, but in the fundamental law, the non-
observance of which will nullify the contract.
Elucidating on the concept of a "constitution," this
Court, in Manila Prince Hotel v. Government Service
Insurance System,79 held:
A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme,
imperious, absolute and unalterable except by the
authority from which it emanates. It has been defined as
the fundamental and paramount law of the nation. It
prescribes the permanent framework of a system of
government, assigns to the different departments their
respective powers and duties, and establishes certain
fixed principles on which government is founded. The
fundamental conception in other words is that it is a
supreme law to which all other laws must conform and
in accordance with which all private rights must be
determined and all public authority administered. Under
the doctrine of constitutional supremacy, if a law or
contract violates any norm of the constitution that law or
contract whether promulgated by the legislative or by the
executive branch or entered into by private persons for
private purposes is null and void and without any force
and effect. Thus, since the Constitution is the
fundamental, paramount and supreme law of the nation,
it is deemed written in every statute and contract.
(Emphasis ours.)
As this Court has held in La Bugal, our Constitution
requires that the President himself be the signatory of
service agreements with foreign-owned corporations
involving the exploration, development, and utilization
of our minerals, petroleum, and other mineral oils. This
power cannot be taken lightly.
In this case, the public respondents have failed to show
that the President had any participation in SC-46. Their
argument that their acts are actually the acts of then
President Macapagal-Arroyo, absent proof of her
disapproval, must fail as the requirement that the
President herself enter into these kinds of contracts is
embodied not just in any ordinary statute, but in the
Constitution itself. These service contracts involving the
exploitation, development, and utilization of our natural
resources are of paramount interest to the present and
future generations. Hence, safeguards were put in place
to insure that the guidelines set by law are meticulously
observed and likewise to eradicate the corruption that
may easily penetrate departments and agencies by
ensuring that the President has authorized or approved of
these service contracts herself.
Even under the provisions of Presidential Decree No. 87,
it is required that the Petroleum Board, now the DOE,
obtain the President's approval for the execution of any
contract under said statute, as shown in the following
provision:
SECTION 5. Execution of contract authorized in this
Act. -Every contract herein authorized shall, subject to
the approval of the President, be executed by the
Petroleum Board created in this Act, after due public
notice pre-qualification and public bidding or concluded
through negotiations. In case bids are requested or if
requested no bid is submitted or the bids submitted are
rejected by the Petroleum Board for being
disadvantageous to the Government, the contract may be
concluded through negotiation.
In opening contract areas and in selecting the best offer
for petroleum operations, any of the following
alternative procedures may be resorted to by the
Petroleum Board, subject to prior approval of the
President[.]
Even if we were inclined to relax the requirement in La
Bugal to harmonize the 1987 Constitution with the
aforementioned provision of Presidential Decree No. 87,
it must be shown that the government agency or
subordinate official has been authorized by the President
to enter into such service contract for the government.
Otherwise, it should be at least shown that the President
subsequently approved of such contract explicitly. None
of these circumstances is evident in the case at bar.
Service Contract No. 46 vis-a-vis Other Laws
Petitioners in G.R. No. 180771 claim that SC-46 violates
Section 27 of Republic Act. No. 9147 or the Wildlife
Resources Conservation and Protection Act, which bans
all marine exploration and exploitation of oil and gas
deposits. They also aver that Section 14 of Republic Act
No. 7586 or the National Integrated Protected Areas
System Act of 1992 (NIPAS Act), which allows the
exploration of protected areas for the purpose of
information-gathering, has been repealed by Section 27
of Republic Act No. 914 7. The said petitioners further
claim that SC-46 is anathema to Republic Act No. 8550
or the Philippine Fisheries Code of 1998, which protects
the rights of the fisherfolk in the preferential use of
municipal waters, with the exception being limited only
to research and survey activities.80
The FIDEC, for its part, argues that to avail of the
exceptions under Section 14 of the NIP AS Act, the
gathering of information must be in accordance with a
DENR-approved program, and the exploitation and
utilization of energy resources must be pursuant to a
general law passed by Congress expressly for that
purpose. Since there is neither a DENR approved
program nor a general law passed by Congress, the
seismic surveys and oil drilling operations were all done
illegally.81 The FIDEC likewise contends that SC-46
infringes on its right to the preferential use of the
communal fishing waters as it is denied free access
within the prohibited zone, in violation not only of the
Fisheries Code but also of the 1987 Constitutional
provisions on subsistence fisherfolk and social
justice.82 Furthermore, the FIDEC believes that the
provisions in Presidential Decree No. 87, which allow
offshore drilling even in municipal waters, should be
deemed to have been rendered inoperative by the
provisions of Republic Act No. 8550 and Republic Act
No. 7160, which reiterate the social justice provisions of
the Constitution.83
The public respondents invoke the rules on statutory
construction and argue that Section 14 of the NIP AS
Act is a more particular provision and cannot be deemed
to have been repealed by the more general prohibition in
Section 27 of Republic Act No. 9147. They aver that
51
Section 14, under which SC-46 falls, should instead be
regarded as an exemption to Section 27.84 Addressing the
claim of petitioners in G.R. No. 180771 that there was a
violation of Section 27 of Republic Act No. 9147, the
public respondents assert that what the section prohibits
is the exploration of minerals, which as defined in the
Philippine Mining Act of 1995, exclude energy materials
such as coal, petroleum, natural gas, radioactive
materials and geothennal energy. Thus, since SC-46
involves oil and gas exploration, Section 27 does not
apply.85
The public respondents defend the validity of SC-46 and
insist that it does not grant exclusive fishing rights to
JAPEX; hence, it does not violate the rule on preferential
use of municipal waters. Moreover, they allege that
JAPEX has not banned fishing in the project area,
contrary to the FIDEC's claim. The public respondents
also contest the attribution of the declining fish catch to
the seismic surveys and aver that the allegation is
unfounded. They claim that according to the Bureau of
Fisheries and Aquatic Resources' fish catch data, the
reduced fish catch started in the 1970s due to destructive
fishing practices.86
Ruling of the Court
On the legality of Service Contract No. 46
vis-a-vis Other Laws
Although we have already established above that SC-46
is null and void for being violative of the 1987
Constitution, it is our duty to still rule on the legality of
SC-46 vis-a-vis other pertinent laws, to serve as a guide
for the Government when executing service contracts
involving not only the Tafion Strait, but also other
similar areas. While the petitioners allege that SC-46 is
in violation of several laws, including international ones,
their arguments focus primarily on the protected status
of the Tañon Strait, thus this Court will concentrate on
those laws that pertain particularly to the Tañon Strait as
a protected seascape.
The Tañon Strait is a narrow passage of water bounded
by the islands of Cebu in the East and Negros in the
West. It harbors a rich biodiversity of marine life,
including endangered species of dolphins and whales.
For this reason, former President Fidel V. Ramos
declared the Tañon Strait as a protected seascape in 1998
by virtue of Proclamation No. 1234 -Declaring the
Tañon Strait situated in the Provinces of Cebu, Negros
Occidental and Negros Oriental as a Protected Area
pursuant to the NIP AS Act and shall be known as Tañon
Strait Protected Seascape. During former President
Joseph E. Estrada's time, he also constituted the Tañon
Strait Commission via Executive Order No. 76 to ensure
the optimum and sustained use of the resources in that
area without threatening its marine life. He followed this
with Executive Order No. 177,87 wherein he included the
mayor of Negros Occidental Municipality/City as a
member of the Tañon Strait Commission, to represent
the LGUs concerned. This Commission, however, was
subsequently abolished in 2002 by then President Gloria
Macapagal-Arroyo, via Executive Order No. 72. 88
True to the constitutional policy that 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,"89 Congress enacted the NIP AS Act
to secure the perpetual existence of all native plants and
animals through the establishment of a comprehensive
system of integrated protected areas. These areas possess
common ecological values that were incorporated into a
holistic plan representative of our natural heritage. The
system encompasses outstandingly 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.90 It classifies and
administers all the designated protected areas to maintain
essential ecological processes and life-support systems,
to preserve genetic diversity, to ensure sustainable use of
resources found therein, and to maintain their natural
conditions to the greatest extent possible.91 The
following categories of protected areas were established
under the NIPAS Act:
a. Strict nature reserve;
b. Natural park;
c. Natural monument;
d. Wildlife sanctuary;
e. Protected landscapes and seascapes;
f. Resource reserve;
g. Natural biotic areas; and
h. Other categories established by law,
conventions or international agreements which
the Philippine Government is a signatory.92
Under Section 4 of the NIP AS Act, a protected area
refers to portions of land and water, set aside due to their
unique physical and biological significance, managed to
enhance biological diversity and protected against
human exploitation.
The Tañon Strait, pursuant to Proclamation No. 1234,
was set aside and declared a protected area under the
category of Protected Seascape. The NIP AS Act defines
a Protected Seascape to be an area of national
significance characterized by the harmonious interaction
of man and land while providing opportunities for public
enjoyment through recreation and tourism within the
normal lifestyle and economic activity of this
areas;93 thus a management plan for each area must be
designed to protect and enhance the permanent
preservation of its natural conditions.94 Consistent with
this endeavor is the requirement that an Environmental
Impact Assessment (EIA) be made prior to undertaking
any activity outside the scope of the management plan.
Unless an ECC under the EIA system is obtained, no
activity inconsistent with the goals of the NIP AS Act
shall be implemented.95
52
The Environmental Impact Statement System (EISS)
was established in 1978 under Presidential Decree No.
1586. It prohibits any person, partnership or corporation
from undertaking or operating any declared
environmentally critical project or areas without first
securing an ECC issued by the President or his duly
authorized representative.96 Pursuant to the EISS, which
called for the proper management of environmentally
critical areas,97 Proclamation No. 214698 was enacted,
identifying the areas and types of projects to be
considered as environmentally critical and within the
scope of the EISS, while DENR Administrative Order
No. 2003-30 provided for its Implementing Rules and
Regulations (IRR).
DENR Administrative Order No. 2003-30 defines an
environmentally critical area as "an area delineated as
environmentally sensitive such that significant
environmental impacts are expected if certain types of
proposed projects or programs are located, developed, or
implemented in it";99 thus, before a project, which is
"any activity, regardless of scale or magnitude, which
may have significant impact on the environment,"100 is
undertaken in it, such project must undergo an EIA to
evaluate and predict the likely impacts of all its stages on
the environment.101 An EIA is described in detail as
follows:
h. Environmental Impact Assessment (EIA) - process
that involves evaluating and predicting 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. The process
is undertaken by, among others, the project proponent
and/or EIA Consultant, EMB, a Review Committee,
affected communities and other stakeholders. 102
Under Proclamation No. 2146, the Tañon Strait is an
environmentally critical area, having been declared as a
protected area in 1998; therefore, any activity outside the
scope of its management plan may only be implemented
pursuant to an ECC secured after undergoing an EIA to
determine the effects of such activity on its ecological
system.
The public respondents argue that they had complied
with the procedures in obtaining an ECC103 and that SC-
46 falls under the exceptions in Section 14 of the NIP
AS Act, due to the following reasons:
1) The Tañon Strait is not a strict nature reserve
or natural park;
2) Exploration is only for the purpose of
gathering information on possible energy
resources; and 3) Measures are undertaken to
ensure that the exploration is being done with
the least damage to surrounding areas.104
We do not agree with the arguments raised by the public
respondents.
Sections 12 and 14 of the NIPAS Act read:
SECTION 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.
No actual implementation of such activities shall be
allowed without the required Environmental Compliance
Certificate (ECC) under the Philippine Environmental
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 the preventive
and remedial action when appropriate. The proponent
shall be liable for any damage due to lack of caution or
indiscretion.
SECTION 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 NIP AS areas shall be allowed only through a law
passed by Congress.
It is true that the restrictions found under the NIP AS Act
are not without exceptions. However, while an
exploration done for the purpose of surveying for energy
resources is allowed under Section 14 of the NIP AS
Act, this does not mean that it is exempt from the
requirement to undergo an EIA under Section 12. In
Sotto v. Sotto,105 this Court explained why a statute
should be construed as a whole:
A statute is passed as a whole and not in parts or sections
and is animated by one general purpose and intent.
Consequently each part or section should be construed in
connection with every other part or section and so as to
produce a harmonious whole. It is not proper to confine
the attention to the one section to be construed. It is
always an unsafe way of construing a statute or contract
to divide it by a process of etymological dissection, into
separate words, and then apply to each, thus separated
from its context, some particular definition given by
lexicographers, and then reconstruct the instrument upon
the basis of these definitions. An instrument must always
be construed as a whole, and the particular meaning to
be attached to any word or phrase is usually to be
ascertained from the context, the nature of the subject
treated of and the purpose or intention of the parties who
executed the contract, or of the body which enacted or
framed the statute or constitution. x x x.
Surveying for energy resources under Section 14 is not
an exemption from complying with the EIA requirement
53
in Section 12; instead, Section 14 provides for additional
requisites before any exploration for energy resources
may be done in protected areas.
The rationale for such additional requirements are
incorporated m Section 2 of the NIP AS Act, to wit:
SECTION 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 this area
is possible only through cooperation among national
government, local government 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 outstandingly 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."
The public respondents themselves admitted that JAPEX
only started to secure an ECC prior to the second sub-
phase of SC-46, which required the drilling of an oil
exploration well. This means that when the seismic
surveys were done in the Tañon Strait, no such
environmental impact evaluation was done. Unless
seismic surveys are part of the management plan of the
Tañon Strait, such surveys were done in violation of
Section 12 of the NIPAS Act and Section 4 of
Presidential Decree No. 1586, which provides:
Section 4. Presidential Proclamation of Environmentally
Critical Areas and Projects. - The President of the
Philippines may, on his own initiative or upon
recommendation of the National Environmental
Protection Council, by proclamation declare certain
projects, undertakings or areas in the country as
environmentally critical. 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. For the proper management of said
critical project or area, the President may by his
proclamation reorganize such government offices,
agencies, institutions, corporations or instrumentalities
including the re-alignment of government personnel, and
their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human
Settlements shall: (a) prepare the proper land or water
use pattern for said critical project(s) or area(s); (b)
establish ambient environmental quality standards; (c)
develop a program of environmental enhancement or
protective measures against calamitous factors such as
earthquakes, floods, water erosion and others, and (d)
perform such other functions as may be directed by the
President from time to time.
The respondents' subsequent compliance with the EISS
for the second sub-phase of SC-46 cannot and will not
cure this violation. The following penalties are provided
for under Presidential Decree No. 1586 and the NIPAS
Act.
Section 9 of Presidential Decree No. 1586 provides for
the penalty involving violations of the ECC requirement:
Section 9. Penalty for Violation. - Any person,
corporation or partnership found violating Section 4 of
this Decree, or the terms and conditions in the issuance
of the Environmental Compliance Certificate, or of the
standards, rules and regulations issued by the National
Environmental Protection Council pursuant to this
Decree shall be punished by the suspension or
cancellation of his/its certificates and/or a fine in an
amount not to exceed Fifty Thousand Pesos
(₱50,000.00) for every violation thereof, at the discretion
of the National Environmental Protection Council.
(Emphasis supplied.)
Violations of the NIP AS Act entails the following fines
and/or imprisonment under Section 21:
SECTION 21. Penalties. - Whoever violates this Act or
any rules and regulations issued by the Department
pursuant to this Act or whoever is found guilty by a
competent court of justice of any of the offenses in the
preceding section shall be fined in the amount of not less
than Five thousand pesos (₱5,000) nor more than Five
hundred thousand pesos (₱500,000), exclusive of the
value of the thing damaged or imprisonment for not less
than one (1) year but not more than six (6) years, or
both, as determined by the court: Provided, that, if the
area requires rehabilitation or restoration as determined
by the court, the offender shall be required to restore or
compensate for the restoration to the damages: Provided,
further, that court shall order the eviction of the offender
from the land and the forfeiture in favor of the
Government of all minerals, timber or any species
collected or removed including all equipment, devices
and firearms used in connection therewith, and any
construction or improvement made thereon by the
offender. If the offender is an association or corporation,
the president or manager shall be directly responsible for
the act of his employees and laborers: Provided, finally,
that the DENR may impose administrative fines and
penalties consistent with this Act. (Emphases supplied.)
Moreover, SC-46 was not executed for the mere purpose
54
of gathering information on the possible energy
resources in the Tañon Strait as it also provides for the
parties' rights and obligations relating to extraction and
petroleum production should oil in commercial
quantities be found to exist in the area. While
Presidential Decree No. 87 may serve as the general law
upon which a service contract for petroleum exploration
and extraction may be authorized, the exploitation and
utilization of this energy resource in the present case
may be allowed only through a law passed by Congress,
since the Tañon Strait is a NIPAS area.106 Since there is
no such law specifically allowing oil exploration and/or
extraction in the Tañon Strait, no energy resource
exploitation and utilization may be done in said
protected seascape.
In view of the foregoing premises and conclusions, it is
no longer necessary to discuss the other issues raised in
these consolidated petitions.
WHEREFORE, the Petitions in G.R. Nos. 180771 and
181527 are GRANTED, Service Contract No. 46 is
hereby declared NULL AND VOID for violating the
1987 Constitution, Republic Act No. 7586, and
Presidential Decree No. 1586.
SO ORDERED.
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.
I
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.3 As 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
55
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.
56
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.16 Such 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
57
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
58
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.
59
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.
V The President shall notify the Congress of every contract
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.
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
60
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 1972.1âwphi1 It is
my opinion that this law is unconstitutional in 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
61
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.
X
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
62
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
63
EN BANC
February 12, 2019
G.R. No. 238467
MARK ANTHONY V. ZABAL, THITING ESTOSO
JACOSALEM, AND ODON S.
BANDIOLA, Petitioners
vs.
RODRIGO R. DUTERTE, President of the Republic
of the Philippines; SALVADOR C. MEDIALDEA,
Executive Secretary; and EDUARDO M. ANO,
[Secretary] of the Department of Interior and Local
Government, Respondents
DECISION
DEL CASTILLO, J.:
Paradise is a place of bliss, felicity, and delight. 1 For
Filipinos and foreign nationals alike, Boracay - a small
island in Malay, Aklan, with its palm-fringed, pristine
white sand beaches, azure waters, coral reefs, rare
seashells,2 and a lot more to offer,3 - is indeed a piece of
paradise. Unsurprisingly, Boracay is one of the country's
prime tourist destinations. However, this island-paradise
has been disrespected, abused, degraded, over-used, and
taken advantage of by both locals and tourists. Hence,
the government gave Boracay its much-needed respite
and rehabilitation. However, the process by which the
rehabilitation was to be implemented did not sit well
with petitioners, hence, the present petition.
The Case
Before this Court is a Petition for Prohibition and
Mandamus with Application for Temporary Restraining
Order, Preliminary Injunction, and/or Status Quo
Ante Order filed by petitioners Mark Anthony V. Zabal
(Zabal), Thiting Estoso Jacosalem (Jacosalem), and
Odon S. Bandiola (Bandiola) against respondents
President Rodrigo R. Duterte (President Duterte ),
Executive Secretary Salvador C. Medialdea, and
Secretary Eduardo M. Año of the Department of Interior
and Local Government (DILG).
The Parties
Zabal and Jacosalem are both residents of Boracay who,
at the time of the filing of the petition, were earning a
living from the tourist activities therein. Zabal claims to
build sandcastles for tourists while Jacosalem drives for
tourists and workers in the island. While not a resident,
Bandiola, for his part, claims to occasionally visit
Boracay for business and pleasure. The three base
their locus standi on direct injury and also from the
transcendental importance doctrine. 4 Respondents, on
the other hand, are being sued in their capacity as
officials of the government.
The Facts
Claiming that Boracay has become a cesspool, President
Duterte first made public his plan to shut it down during
a business forum held in Davao sometime February
2018. 5 This was followed by several speeches and news
releases stating that he would place Boracay under a
state of calamity. True to his words, President Duterte
ordered the shutting down of the island in a cabinet
meeting held on April 4, 2018. This was confirmed by
then Presidential Spokesperson Harry L. Roque, Jr. in a
press briefing the following day wherein he formally
announced that the total closure of Boracay would be for
a maximum period of six months starting April 26,
2018. 6
Following this pronouncement, petitioners contend that
around 630 police and military personnel were readily
deployed to Boracay including personnel for crowd
dispersal management. 7 They also allege that the DILG
had already released guidelines for the closure. 8
Petitioners claim that ever since the news of Boracay's
closure came about, fewer tourists had been engaging the
services of Zabal and Jacosalem such that their earnings
were barely enough to feed their families. They fear that
if the closure pushes through, they would suffer grave
and irreparable damage. Hence, despite the fact that the
government was then yet to release a formal issuance on
the matter,9 petitioners filed the petition on April 25,
2018 praying that:
(a) Upon the filing of [the] petition, a TEMPORARY
RESTRAINING ORDER (TRO) and/or a WRIT OF
PRELIMINARY PROHIBITORY INJUNCTION be
immediately issued RESTRAINING and/or
ENJOINING the respondents, and all persons acting
under their command, order, and responsibility from
enforcing a closure of Boracay Island or from banning
the petitioners, tourists, and non-residents therefrom, and
a WRIT OF PRELIMINARY MANDATORY
INJUNCTION directing the respondents, and all persons
acting under their command, order, and responsibility to
ALLOW all of the said persons to enter and/or leave
Boracay Island unimpeded;
(b) In the alternative, if the respondents enforce the
closure after the instant petition is filed, that a STATUS
QUO ANTE Order be issued restoring and maintaining
the condition prior to such closure;
(c) After proper proceedings, a judgment be rendered
PERMANENTLY RESTRAINING and/or ENJOINING
the respondents, and all persons acting under their
command, order, and responsibility from enforcing a
closure of Boracay Island or from banning the
petitioners, tourists, and non-residents therefrom, and
further DECLARING the closure of Boracay Island or
the ban against petitioners, tourists, and non-residents
therefrom to be UNCONSTITUTIONAL.
Other reliefs just and equitable under the premises are
similarly prayed for. 10
On May 18, 2018, petitioners filed a Supplemental
Petition 11 stating that the day following the filing of
their original petition or on April 26, 2018, President
Duterte issued Proclamation No. 475 12 formally
declaring a state of calamity in Boracay and ordering its
closure for six months from April 26, 2018 to October
64
25, 2018. The closure was implemented on even date.
Thus, in addition to what they prayed for in their original
petition, petitioners implore the Court to declare as
unconstitutional Proclamation No. 475 insofar as it
orders the closure of Boracay and ban of tourists and
nonresidents therefrom. 13
In the Resolutions dated April 26, 201814 and June 5,
2018, 15 the Court required respondents to file their
Comment on the Petition and the Supplemental Petition,
respectively. Respondents filed their Consolidated
Comment16 on July 30, 2018 while petitioners filed their
Reply 17 thereto on October 12, 2018.
On October 26, 2018, Boracay was reopened to tourism.
Petitioners' Arguments
Petitioners state that a petition for prohibition is the
appropriate remedy to raise constitutional issues and to
review and/or prohibit or nullify, when proper, acts of
legislative and executive officials. An action for
mandamus, on the other hand, lies against a respondent
who unlawfully excludes another from the enjoyment of
an entitled right or office. Justifying their resort to
prohibition and mandamus, petitioners assert that ( 1)
this case presents constitutional issues, i.e., whether
President Duterte acted within the scope of the powers
granted him by the Constitution in ordering the closure
of Boracay and, whether the measures implemented
infringe upon the constitutional rights to travel and to
due process of petitioners as well as of tourists and non-
residents of the island; and, (2) President Duterte
exercised a power legislative in nature, thus unlawfully
excluding the legislative department from the assertion
of such power.
As to the substantive aspect, petitioners argue that
Proclamation No. 475 is an invalid exercise of legislative
powers. They posit that its issuance is in truth a law-
making exercise since the proclamation imposed a
restriction on the right to travel and therefore
substantially altered the relationship between the State
and its people by increasing the former's power over the
latter. Simply stated, petitioners posit that Proclamation
No. 475 partakes of a law the issuance of which is not
vested in the President. As such, Proclamation No. 475
must be struck down for being the product of an invalid
exercise of legislative power.
Likewise, petitioners argue that Proclamation No. 475 is
unconstitutional for infringing on the constitutional
rights to travel and to due process.
Petitioners point out that although Section 6, Article III
of the Constitution explicitly allows the impairment of
the right to travel, two conditions, however, must concur
to wit: (1) there is a law restricting the said right, and (2)
the restriction is based on national security, public safety
or public health. For petitioners, neither of these
conditions have been complied with. For one,
Proclamation No. 475 does not refer to any specific law
restricting the right to travel. Second, it has not been
shown that the presence of tourists in the island poses
any threat or danger to national security, public safety or
public health.
As to the right to due process, petitioners aver that the
same covers property rights and these include the right to
work and earn a living. Since the government, through
Proclamation No. 475, restricted the entry of tourists and
non-residents into the island, petitioners claim that they,
as well as all others who work, do business, or earn a
living in the island, were deprived of the source of their
livelihood as a result thereof. Their right to work and
earn a living was curtailed by the proclamation.
Moreover, while Proclamation No. 475 cites various
violations of environmental laws in the island, these, for
the petitioners, do not justify disregard of the rights of
thousands of law-abiding people. They contend that
environmental laws provide for specific penalties
intended only for violators. Verily, to make those
innocent of environmental transgressions suffer the
consequences of the Boracay closure is tantamount to
violating their right to due process.
Petitioners likewise argue that the closure of Boracay
could not be anchored on police power. For one, police
power must be exercised not by the executive but by
legislative bodies through the creation of statutes and
ordinances that aim to promote the health, moral, peace,
education, safety, and general welfare of the people. For
another, the measure is unreasonably unnecessary and
unduly oppressive.
In their Supplemental Petition, petitioners aver that
Proclamation No. 475 unduly impinges upon the local
autonomy of affected Local Government Units (LGUs)
since it orders the said LGUs to implement the closure of
Boracay and the ban of tourists and non-residents
therefrom. While petitioners acknowledge the President's
power of supervision over LGUs, they nevertheless point
out that he does not wield the power of control over
them. As such, President Duterte can only call the
attention of the LGUs concerned with regard to rules not
being followed, which is the true essence of supervision,
but he cannot lay down the rules himself as this already
constitutes control.
Finally, petitioners state that this case does not simply
revolve on the need to rehabilitate Boracay, but rather,
on the extent of executive power and the manner by
which it was wielded by President Duterte. To them,
necessity does not justify the President's abuse of power.
Respondents' Arguments
At the outset, respondents assert that President Duterte
must be dropped as party-respondent in this case because
he is immune from suit. They also argue that the petition
should be dismissed outright for lack of basis. According
to respondents, prohibition is a preventive remedy to
restrain future action. Here, President Duterte had
already issued Proclamation No. 475 and in fact, the
rehabilitation of the island was then already ongoing.
These, according to respondents, have rendered
improper the issuance of a writ of prohibition
considering that as a rule, prohibition does not lie to
restrain an act that is already fait accompli. Neither
is mandamus proper. Section 3, Rule 65 of the Rules of
Court provides that a mandamus petition may be
resorted to when any tribunal, corporation, board, officer
or person unlawfully neglects the performance of an act
65
which the law specifically enjoins as a duty resulting
from an office, trust, or station. Respondents argue
that mandamus will not lie in this case because they
were not neglectful of their duty to protect the
environment; on the contrary, they conscientiously
performed what they were supposed to do by ordering
the closure of Boracay to give way to its rehabilitation.
Thus, to them, mandamus is obviously inappropriate.
At any rate, respondents contend that there is no real
justiciable controversy in this case. They see no clash
between the right of the State to preserve and protect its
natural resources and the right of petitioners to earn a
living. Proclamation No. 475 does not prohibit anyone
from being gainfully employed.
Respondents moreover maintain that the petition is in the
nature of a Strategic Lawsuit Against Public
Participation (SLAPP) under Rule 6 of A.M. No. 09-6-8-
SC or the Rules of Procedure for Environmental Cases,
or a legal action filed to harass, vex, exert undue
pressure or stifle any legal recourse that any person,
institution or the government has taken or may take in
the enforcement of environmental laws, protection of the
environment or assertion of environmental rights.
Respondents thus assert that the petition must be
dismissed since it was filed for the said sole purpose.
With regard to the substantive aspect, respondents
contend that the issuance of Proclamation No. 475 is a
valid exercise of delegated legislative power, it being
anchored on Section 16 of Republic Act (RA) No.
10121, otherwise known as the Philippine Disaster Risk
Reduction and Management Act of 2010, or the
authority given to the President to declare a state of
calamity, viz.:
SECTION 16. Declaration of State of Calamity. - The
National Council shall recommend to the President of
the Philippines the declaration of a cluster of barangays,
municipalities, cities, provinces, and regions under a
state of calamity, and the lifting thereof, based on the
criteria set by the National Council. The President's
declaration may warrant international humanitarian
assistance as deemed necessary.
They likewise contend that Proclamation No. 475 was
issued pursuant to the President's executive power under
Section 1, Article VII of the Constitution. As generally
defined, executive power is the power to enforce and
administer laws. It is the power of implementing the
laws and enforcing their due observance. And in order to
effectively discharge the enforcement and administration
of the laws, the President is granted administrative
power over bureaus and offices, which includes the
power of control. The power of control, in turn, refers to
the authority to direct the performance of a duty, restrain
the commission of acts, review, approve, reverse or
modify acts and decisions of subordinate officials or
units, and prescribe standards, guidelines, plans and
programs. Respondents allege that President Duterte's
issuance of Proclamation No. 475 was precipitated by
his approval of the recommendation of the National
Disaster Risk Reduction and Management Council
(NDRRMC) to place Boracay under a state of calamity.
By giving his imprimatur, it is clear that the President
merely exercised his power of control over the executive
branch.
In any case, respondents assert that the President has
residual powers which are implied from the grant of
executive power and which are necessary for him to
comply with his duties under the Constitution as held in
the case of Marcos v. Manglapus. 18
In sum, respondents emphasize that the issuance of
Proclamation No. 475 is within the ambit of the powers
of the President, not contrary to the doctrine of
separation of powers, and in accordance with the
mechanism laid out by the Constitution.
Further, respondents dispute petitioners' allegation that
Proclamation No. 475 infringes upon the rights to travel
and to due process. They emphasize that the right to
travel is not an absolute right. It may be impaired or
restricted in the interest of national security, public
safety, or public health. In fact, there are already several
existing laws which serve as statutory limitations to the
right to travel.
Anent the alleged violation of the right to due process,
respondents challenge petitioners' claim that they were
deprived of their livelihood without due process.
Respondents call attention to the fact that Zabal as
sandcastle maker and Jacosalem as driver are freelancers
and thus belong to the infonnal economy sector. This
means that their source of livelihood is never guaranteed
and is susceptible to changes in regulations and the
overall business climate. In any case, petitioners'
contentions must yield to the State's exercise of police
power. As held in Ermita-Malate Hotel & Motel
Operators Association, Inc. v. The Hon. City Mayor of
Manila, 19 the mere fact that some individuals in the
community may be deprived of their present business or
of a particular mode of living cannot prevent the exercise
of the police power of the State. Indeed, to respondents,
private interests should yield to the reasonable
prerogatives of the State for the public good and welfare,
which precisely are the primary objectives of the
government measure herein questioned
Lastly, respondents insist that Proclamation No. 475
does not unduly transgress upon the local autonomy of
the LGUs concerned. Under RA 10121, it is actually the
Local Disaster Risk Reduction Management Council
concerned which, subject to several criteria, is tasked to
take the lead in preparing for, responding to, and
recovering from the effects of any disaster when a state
of calamity is declared. In any case, the devolution of
powers upon LGUs pursuant to the constitutional
mandate of ensuring their autonomy does not mean that
the State can no longer interfere in their affairs. This is
especially true in this case since Boracay's
environmental disaster cannot be treated as a localized
problem that can be resolved by the concerned LGUs
only. The magnitude and gravity of the problem require
the intervention and assistance of different national
government agencies in coordination with the concerned
LGUs.
As a final point, respondents aver that the bottom line of
petitioners' lengthy discourse and constitutional
66
posturing is their intention to re-open Boracay to tourists
and non-residents for the then remainder of the duration
of the closure and thus perpetuate and further aggravate
the island's environmental degradation. Respondents
posit that this is unacceptable since Boracay cannot be
sacrificed for the sake of profit and personal
convenience of the few.
Our Ruling
First, we discuss the procedural issues.
President Duterte is dropped as
respondent in this case
As correctly pointed out by respondents, President
Duterte must be dropped as respondent in this case. The
Court's pronouncement in Professor David v. President
Macapagal-Arroyo20 on the non-suability of an
incumbent President cannot be any clearer, viz.:
x x x Settled is the doctrine that the President, during his
tenure of office or actual incumbency, may not be sued
in any civil or criminal case, and there is no need to
provide for it in the Constitution or law. It will degrade
the dignity of the high office of the President, the Head
of State, if he can be dragged into court litigations while
serving as such. Furthermore, it is important that he be
freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike
the legislative and judicial branch, only one constitutes
the executive branch and anything which impairs his
usefulness in the discharge of the many great and
important duties imposed upon him by the Constitution
necessarily impairs the operation of the Government. 21
Accordingly, President Duterte is dropped as respondent
in this case.
Propriety of Prohibition and
Mandamus
Section 2, Rule 65 of the Rules of Court provides for a
petition for prohibition as follows:
SEC. 2. Petition for prohibition. - When the proceedings
of any tribunal, corporation, board, officer or person,
whether exercising judicial, quasi-judicial or ministerial
functions, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting
to lack or in excess of jurisdiction, and there is no appeal
or any other plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may
file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be
rendered commanding the respondent to desist from
further proceedings in the action or matter specified
therein, or otherwise granting such incidental reliefs as
law and justice may require.
xxxx
"Indeed, prohibition is a preventive remedy seeking that
a judgment be rendered directing the defendant to desist
from continuing with the commission of an act perceived
to be illegal. As a rule, the proper function of a writ of
prohibition is to prevent the performance of an act which
is about to be done. It is not intended to provide a
remedy for acts already accomplished. "22
Mandamus, on the other hand, is provided for by Section
3 of the same Rule 65:
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, 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.
xxxx
"As the quoted provision instructs, mandamus will lie if
the tribunal, corporation, board, officer, or person
unlawfully neglects the performance of an act which the
law enjoins as a duty resulting from an office, trust, or
station."23
It is upon the above-discussed contexts of prohibition
and mandamus that respondents base their contention of
improper recourse. Respondents maintain that
prohibition is not proper in this case because the closure
of Boracay is already a fait accompli. Neither
is mandamus appropriate since there is no neglect of
duty on their part as they were precisely performing their
duty to protect the environment when the closure was
ordered.
Suffice it to state, however, that the use of prohibition
and mandamus is not merely confined to Rule 65. These
extraordinary remedies may be invoked when
constitutional violations or issues are raised. As the
Court stated in Spouses Imbong v. Hon. Ochoa, Jr.: 24
As far back as Tañada v. Angara, the Court has
unequivocally declared that certiorari, prohibition
and mandamus are appropriate remedies to raise
constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and
executive officials, as there is no other plain, speedy
or adequate remedy in the ordinary course of
law. This ruling was later on applied in Macalintal v.
COMELEC, Aldaba v. COMELEC, Magallona v.
Ermita, and countless others. In Tañada, the Court
wrote:
In seeking to nullify an act of the Philippine Senate on
the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy. Where
67
an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the
dispute. 'The question thus posed is judicial rather than
political. The duty (to adjudicate) remains to assure that
the supremacy of the Constitution is upheld. Once a
'controversy as to the application or interpretation of
constitutional provision is raised before this Court, as in
the instant case, it becomes a legal issue which the Court
is bound by constitutional mandate to decide. x x
x25 (Citations omitted; emphasis supplied)
It must be stressed, though, that resort to prohibition
and mandamus on the basis of alleged constitutional
violations is not without limitations. After all, this Court
does not have unrestrained authority to rule on just about
any and every claim of constitutional violation.26 The
petition must be subjected to the four exacting requisites
for the exercise of the power of judicial review, viz.: (a)
there must be an actual case or controversy; (b) the
petitioners must possess locus standi; ( c) the question of
constitutionality must be raised at the earliest
opportunity; and ( d) the issue of constitutionality must
be the lis mota of the case.27 Hence, it is not enough that
this petition mounts a constitutional challenge against
Proclamation No. 475. It is likewise necessary that it
meets the aforementioned requisites before the Court
sustains the propriety of the recourse.
Existence of Requisites for Judicial
Review
In La Bugal-B'laan Tribal Association, Inc. v. Sec.
Ramos,28 an actual case or controversy was characterized
as a "case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory
opinion. The power does not extend to hypothetical
questions since any attempt at abstraction could only
lead to dialectics and barren legal question and to sterile
conclusions unrelated to actualities."29
The existence of an actual controversy in this case is
evident. President Duterte issued Proclamation No. 475
on April 26, 2018 and, pursuant thereto, Boracay was
temporarily closed the same day. Entry of non-residents
and tourists to the island was not allowed until October
25, 2018. Certainly, the implementation of the
proclamation has rendered legitimate the concern of
petitioners that constitutional rights may have possibly
been breached by this governmental measure. It bears to
state that when coupled with sufficient facts, "reasonable
certainty of the occurrence of a perceived threat to any
constitutional interest suffices to provide a basis for
mounting a constitutional challenge". 30 And while it
may be argued that the reopening of Boracay has
seemingly rendered moot and academic questions
relating to the ban of tourists and non-residents into the
island, abstention from judicial review is precluded by
such possibility of constitutional violation and also by
the exceptional character of the situation, the paramount
public interest involved, and the fact that the case is
capable of repetition.31
As to legal standing, petitioners assert that they were
directly injured since their right to travel and, their right
to work and earn a living which thrives solely on tourist
arrivals, were affected by the closure. They likewise
want to convince the Court that the issues here are of
transcendental importance since according to them, the
resolution of the same will have farreaching
consequences upon all persons living and working in
Boracay; upon the Province of Aklan which is heavily
reliant on the island's tourism industry; and upon the
whole country considering that fundamental
constitutional rights were allegedly breached.
"Legal standing or locus standi is a party's personal and
substantial interest in a case such that he has sustained or
will sustain direct injury as a result of the governmental
act being challenged. It calls for more than just a
generalized grievance. The term 'interest' means a
material interest, an interest in issue affected by the
decree, as distinguished from mere interest in the
question involved, or a mere incidental interest."32 There
must be a present substantial interest and not a mere
expectancy or a future, contingent, subordinate, or
consequential interest. 33
In Galicto v. Aquino III,34 the therein petitioner, Jelbert
B. Galicto (Galicto) questioned the constitutionality of
Executive Order No. 7 (E07) issued by President
Benigno Simeon C. Aquino III, which ordered, among
others, a moratorium on the increases in the salaries and
other forms of compensation of all government-owned-
and-controlled corporations (GOCCs) and government
financial institutions. The Court held that Galicto, an
employee of the GOCC Philhealth, has no legal standing
to assail E07 for his failure to demonstrate that he has a
personal stake or material interest in the outcome of the
case. His interest, if any, was speculative and based on a
mere expectancy. Future increases in his salaries and
other benefits were contingent events or expectancies to
which he has no vested rights. Hence, he possessed
no locus standi to question the curtailment thereof.
Here, as mentioned, Zabal is a sandcastle maker and
Jacosalem, a driver.1avvphi1 The nature of their
livelihood is one wherein earnings are not guaranteed.
As correctly pointed out by respondents, their earnings
are not fixed and may vary depending on the business
climate in that while they can earn much on peak
seasons, it is also possible for them not to earn anything
on lean seasons, especially when the rainy days set in.
Zabal and Jacosalem could not have been oblivious to
this kind of situation, they having been in the practice of
their trade for a considerable length of time. Clearly,
therefore, what Zabal and Jacosalem could lose in this
case are mere projected earnings which are in no way
guaranteed, and are sheer expectancies characterized as
contingent, subordinate, or consequential interest, just
like in Galicto. Concomitantly, an assertion of direct
injury on the basis of loss of income does not clothe
Zabal and Jacosalem with legal standing.
As to Bandiola, the petition is bereft of any allegation as
to his substantial interest in the case and as to how he
sustained direct injury as a result of the issuance of
Proclamation No. 475. While the allegation that he is a
non-resident who occasionally goes to Boracay for
business and pleasure may suggest that he is claiming
direct injury on the premise that his right to travel was
68
affected by the proclamation, the petition fails to
expressly provide specifics as to how. "It has been held
that a party who assails the constitutionality of a statute
must have a direct and personal interest. [He] must show
not only that the law or any governmental act is invalid,
but also that [he] sustained or is in immediate danger of
sustaining some direct injury as a result of its
enforcement, and not merely that [he] suffers thereby in
some indefinite way. [He] must show that [he] has been
or is about to be denied some right or privilege to which
[he] is lawfully entitled or that [he] is about to be
subjected to some burdens or penalties by reason of the
statute or act complained of."35 Indeed, the petition
utterly fails to demonstrate that Bandiola possesses the
requisite legal standing to sue.
Notwithstanding petitioners' lack of locus standi, this
Court will allow this petition to proceed to its ultimate
conclusion due to its transcendental importance. After
all, the rule on locus standi is a mere procedural
technicality, which the Court, in a long line of cases
involving subjects of transcendental importance, has
waived or relaxed, thus allowing nontraditional plaintiffs
such as concerned citizens, taxpayers, voters and
legislators to sue in cases of public interest, albeit they
may not have been personally injured by a government
act. 36 More importantly, the matters raised in this case,
involved on one hand, possible violations of the
Constitution and, on the other, the need to rehabilitate
the country's prime tourist destination. Undeniably, these
matters affect public interests and therefore are of
transcendental importance to the people. In addition, the
situation calls for review because as stated, it is capable
of repetition, the Court taking judicial notice of the many
other places in our country that are suffering from
similar environmental degradation.
As to the two other requirements, their existence is
indubitable. It will be recalled that even before a formal
issuance on the closure of Boracay was made by the
government, petitioners already brought the question of
the constitutionality of the then intended closure to this
Court. And, a day after Proclamation No. 475 was
issued, they filed a supplemental petition impugning its
constitutionality. Clearly, the filing of the petition and
the supplemental petition signals the earliest opportunity
that the constitutionality of the subject government
measure could be raised. There can also be no denying
that the very lis mota of this case is the constitutionality
of Proclamation No. 475.
Defense of SLAPP
Suffice it to state that while this case touches on the
environmental issues in Boracay, the ultimate issue for
resolution is the constitutionality of Proclamation No.
475. The procedure in the treatment of a defense of
SLAPP provided for under Rule 6 of the Rules of
Procedure for Environmental Cases should not,
therefore, be made to apply.
Now as to the substantive issues.
We first quote in full Proclamation No. 475.
PROCLAMATION No. 475
DECLARING A STATE OF CALAMITY IN THE
BARANGAYS OF BALABAG, MANOC-MANOC
AND Y APAK (ISLAND OF BORACAY) IN THE
MUNICIPALITY OF MALAY, AKLAN, AND
TEMPORARY CLOSURE OF THE ISLAND AS A
TOURIST DESTINATION
WHEREAS, Section 15, Article II of the 1987
Constitution states that the State shall protect and
promote the right to health of the people and instill
health consciousness among them;
WHEREAS, Section 16, Article II of the 1987
Constitution provides that it is the policy of the State to
protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and
harmony of nature;
WHEREAS, Section 2, Article XII of the 1987
Constitution provides that the State shall protect the
nation's marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone;
WHEREAS, an Inter-Agency Task Force, composed of
the Department of Environment and Natural Resources
(DENR), the [DILG] and the Department of Tourism
(DOT), was established to evaluate the environmental
state of the Island of Boracay, and investigate possible
violations of existing environmental and health laws,
rules and regulations;
WHEREAS, the investigations and validation
undertaken revealed that:
a. There is a high concentration of fecal coliform
in the Bolabog beaches located in the eastern
side of Boracay Island due to insufficient sewer
lines and illegal discharge of untreated waste
water into the beach, with daily tests conducted
from 6 to 10 March 2018 revealing consistent
failure in compliance with acceptable water
standards, with an average result of 18,000 most
probable number (MPN)/1 OOml, exceeding the
standard level of 400 MPN/100ml;
b. Most commercial establishments and
residences are not connected to the sewerage
infrastructure of Boracay Island, and waste
products are not being disposed through the
proper sewerage infrastructures in violation of
environmental law, rules, and regulations;
c. Only 14 out of 51 establishments near the
shores of Boracay Island are compliant with the
provision of Republic Act (RA) No. 9275 or the
Philippine Clean Water Act of 2004;
d. Dirty water results in the degradation of the
coral reefs and coral cover of Boracay Island,
which declined by approximately 70.5% from
1988 to 2011, with the highest decrease taking
place between 2008 and 2011 during a period of
increased tourist arrivals (approximately 38.4%);
69
 e. Solid waste within Boracay Island is at a
generation rate of 90 to 115 tons per day, while
the hauling capacity of the local government is
only 30 tons per day, hence, leaving
approximately 85 tons of waste in the Island
daily;
f. The natural habitats of Puka shells, nesting
grounds of marine turtles, and roosting grounds
of flying foxes or fruit bats have been damaged
and/or destroyed; and
g. Only four (4) out of nine (9) wetlands in
Boracay Island remain due to illegal
encroachment of structures, including 93 7
identified illegal structures constructed on
forestlands and wetlands, as well as 102 illegal
structures constructed on areas already classified
as easements, and the disappearance of the
wetlands, which acts as natural catchments,
enhances flooding in the area;
WHEREAS, the findings of the Department of Science
and Technology (DOST) reveal that beach erosion is
prevalent in Boracay Island, particularly along the West
Beach, where as much as 40 meters of erosion has taken
place in the past 20 years from 1993 to 2003, due to
storms, extraction of sand along the beach to construct
properties and structures along the foreshore, and
discharge of waste water near the shore causing
degradation of coral reefs and seagrass meadows that
supply the beach with sediments and serve as buffer to
wave action;
WHEREAS, the DOST also reports that based on the
2010-2015 Coastal Ecosystem Conservation and
Adaptive Management Study of the Japan International
Cooperation Agency, direct discharge of waste water
near the shore has resulted in the frequent algal bloom
and coral deterioration, which may reduce the source of
sand and cause erosion;
WHEREAS, the data from the Region VI - Western
Visayas Regional Disaster Risk Reduction and
Management Council shows that the number of tourists
in the island in a day amounts to 18,082, and the tourist
arrival increased by more than 160% from 2012 to 2017;
WHEREAS, the continuous rise of tourist arrivals, the
insufficient sewer and waste management system, and
environmental violations of establishments aggravate the
environmental degradation and destroy the ecological
balance of the Island of Boracay, resulting in major
damage to property and natural resources, as well as the
disruption of the normal way of life of the people
therein;
WHEREAS, it is necessary to implement urgent
measures to address the abovementioned human-induced
hazards, to protect and promote the health and well-
being of its residents, workers and tourists, and to
rehabilitate the Island in order to ensure the
sustainability of the area and prevent further degradation
of its rich ecosystem;
WHEREAS, RA No. 9275 provides that the DENR
shall designate water bodies, or portions thereof, where
specific pollutants from either natural or man-made
source have already exceeded water quality guidelines as
non-attainment areas for the exceeded pollutants and
shall prepare and implement a program that will not
allow new sources of exceeded water pollutant in non-
attainment areas without a corresponding reduction in
discharges from existing sources;
WHEREAS, RA No. 9275 also mandates the DENR, in
coordination with other concerned agencies and the
private sectors, to take such measures as may be
necessary to upgrade the quality of such water in non-
attainment areas to meet the standards under which it has
been classified, and the local government units to
prepare and implement contingency plans and other
measures including relocation, whenever necessary, for
the protection of health and welfare of the residents
within potentially affected areas;
WHEREAS, Proclamation No. 1064 (s. 2006) classified
the Island of Boracay into 3 77 .68 hectares of reserved
forest land for protection purposes and 628.96 hectares
of agricultural land as alienable and disposable land;
WHEREAS, pursuant to the Regalian Doctrine, and as
emphasized in recent jurisprudence, whereby all lands
not privately owned belong to the State, the entire island
of Boracay is state-owned, except for lands already
covered by existing valid titles;
WHEREAS, pursuant to RA No. 10121, or the
Philippine Disaster Risk Reduction and Management
Act of 2010, the National Disaster Risk Reduction and
Management Council has recommended the declaration
of a State of Calamity in the Island of Boracay and the
temporary closure of the Island as a tourist destination to
ensure public safety and public health, and to assist the
government in its expeditious rehabilitation, as well as in
addressing the evolving socio-economic needs of
affected communities;
NOW, THEREFORE, I, RODRIGO ROA
DUTERTE, President of the Philippines, by virtue of
the powers vested in me by the Constitution and existing
laws, do hereby declare a State of Calamity in the
barangays of Balabag, Manoc-Manoc and Yapak (Island
of Boracay) in the Municipality of Malay, Aklan. In this
regard, the temporary closure of the Island as a tourist
destination for six (6) months starting 26 April 2018, or
until 25 October 2018, is hereby ordered subject to
applicable laws, rules, regulations and jurisprudence.
Concerned government agencies shall, as may be
necessary or appropriate, undertake the remedial
measures during a State of Calamity as provided in RA
No. 10121 and other applicable laws, rules and
regulations, such as control of the prices of basic goods
and commodities for the affected areas, employment of
negotiated procurement and utilization of appropriate
funds, including the National Disaster Risk Reduction
and Management Fund, for relief and rehabilitation
efforts in the area. All departments and other concerned
government agencies are also hereby directed to
coordinate with, and provide or augment the basic
70
services and facilities of affected local government units,
if necessary.
The State of Calamity in the Island of Boracay shall
remain in force and effect until lifted by the President,
notwithstanding the lapse of the six-month closure
period.
All departments, agencies and offices, including
government-owned or controlled corporations and
affected local government units are hereby directed to
implement and execute the abovementioned closure and
the appropriate rehabilitation works, in accordance with
pertinent operational plans and directives, including the
Boracay Action Plan.
The Philippine National Police, Philippine Coast Guard
and other law enforcement agencies, with the support of
the Armed Forces of the Philippines, are hereby directed
to act with restraint and within the bounds of the law in
the strict implementation of the closure of the Island and
ensuring peace and order in the area.
The Municipality of Malay, Aklan is also hereby
directed to ensure that no tourist will be allowed entry to
the island of Boracay until such time that the closure has
been lifted by the President.
All tourists, residents and establishment owners in the
area are also urged to act within the bounds of the law
and to comply with the directives herein provided for the
rehabilitation and restoration of the ecological balance of
the Island which will be for the benefit of all concerned.
It must be noted at the outset that petitioners failed to
present and establish the factual bases of their arguments
because they went directly to this Court. In ruling on the
substantive issues in this case, the Court is, thus,
constrained to rely on, and uphold the factual bases,
which prompted the issuance of the challenged
proclamation, as asserted by respondents. Besides,
executive determinations, such as said factual bases, are
generally final on this Court.37
The Court observes that the meat of petitioners'
constitutional challenge on Proclamation No. 475 is the
right to travel.
Clearly then, the one crucial question that needs to be
preliminarily answered is - does Proclamation No. 475
constitute an impairment on the right to travel?
The Court answers in the negative.
Proclamation No. 475 does not pose an
actual impairment on the right to travel
Petitioners claim that Proclamation No. 475 impairs the
right to travel based on the following provisions:
NOW, THEREFORE, I, RODRIGO ROA
DUTERTE, President of the Philippines, by virtue of
the powers vested in me by the Constitution and existing
laws, do hereby declare a State of Calamity in the
barangays of Balabag, Manoc-Manoc and Yapak (Island
of Boracay) in the Municipality of Malay, Aldan. In this
regard, the temporary closure of the Island as a
tourist destination for six (6) months starting 26
April 2018, or until 25 October 2018, is hereby
ordered subject to applicable laws, rules, regulations
and jurisprudence.
xxxx
The Municipality of Malay, Aldan is also hereby
directed to ensure that no tourist will be allowed entry
to the island of Boracay until such time that the closure
has been lifted by the President.
xxxx
The activities proposed to be undertaken to rehabilitate
Boracay involved inspection, testing, demolition,
relocation, and construction. These could not have been
implemented freely and smoothly with tourists coming
in and out of the island not only because of the possible
disruption that they may cause to the works being
undertaken, but primarily because their safety and
convenience might be compromised. Also, the
contaminated waters in the island were not just confined
to a small manageable area. The excessive water
pollutants were all over Bolabog beach and the
numerous illegal drainpipes connected to and
discharging wastewater over it originate from different
parts of the island. Indeed, the activities occasioned by
the necessary digging of these pipes and the isolation of
the contaminated beach waters to give way to treatment
could not be done in the presence of tourists. Aside from
the dangers that these contaminated waters pose, hotels,
inns, and other accommodations may not be available as
they would all be inspected and checked to determine
their compliance with environmental laws. Moreover, it
bears to state that a piece-meal closure of portions of the
island would not suffice since as mentioned, illegal
drainpipes extend to the beach from various parts of
Boracay. Also, most areas in the island needed major
structural rectifications because of numerous resorts and
tourism facilities which lie along easement areas,
illegally reclaimed wetlands, and of forested areas that
were illegally cleared for construction purposes. Hence,
the need to close the island in its entirety and ban tourists
therefrom.
In fine, this case does not actually involve the right to
travel in its essential sense contrary to what petitioners
want to portray. Any bearing that Proclamation No. 475
may have on the right to travel is merely corollary to the
closure of Boracay and the ban of tourists and non-
residents therefrom which were necessary incidents of
the island's rehabilitation. There is certainly no showing
that Proclamation No. 475 deliberately meant to impair
the right to travel. Tue questioned proclamation is
clearly focused on its purpose of rehabilitating Boracay
and any intention to directly restrict the right cannot, in
any manner, be deduced from its import. This is contrary
to the import of several laws recognized as constituting
an impairment on the right to travel
which directly impose restriction on the right, viz.:
[1] The Human Security Act of2010 or Republic Act
(R.A.) No. 9372. The law restricts the right travel of an
71
individual charged with the crime of terrorism even
though such person is out on bail.
[2] The Philippine Passport Act of 1996 or R.A. No.
8239. Pursuant to said law, the Secretary of Foreign
Affairs or his authorized consular officer may refuse the
issuance of, restrict the use of, or withdraw, a passport of
a Filipino citizen.
[3] The 'Anti-Trafficking in Persons Act of 2003' or RA
9208. Pursuant to the provisions thereof, the Bureau of
Immigration, in order to manage migration and curb
trafficking in persons, issued Memorandum Order Radjr
No. 2011-011, allowing its Travel Control and
Enforcement Unit to 'offload passengers with fraudulent
travel documents, doubtful purpose of travel, including
possible victims of human trafficking' from our ports.
[4] The Migrant Workers and Overseas Filipinos Act of
1995 or R.A. No. 8042, as amended by R.A. No. 10022.
In enforcement of said law, the Philippine Overseas
Employment Administration (POEA) may refuse to
issue deployment permit[ s] to a specific country that
effectively prevents our migrant workers to enter such
country.
[5] The Act on Violence Against Women and Children or
R.A. No. 9262. The law restricts movement of an
individual against whom the protection order is intended.
[6] Inter-Country Adoption Act of 1995 or R.A. No.
8043. Pursuant thereto, the Inter-Country Adoption
Board may issue rules restrictive of an adoptee's right to
travel 'to protect the Filipino child from abuse,
exploitation, trafficking and/or sale or any other practice
in connection with adoption which is harmful,
detrimental, or prejudicial to the child.’38
In Philippine Association of Service Exporters, Inc. v.
Hon. Drilon, 39 the Court held that the consequence on
the right to travel of the deployment ban implemented by
virtue of Department Order No. 1, Series of 1998 of the
Department of Labor and Employment does not impair
the right.
Also significant to note is that the closure of Boracay
was only temporary considering the categorical
pronouncement that it was only for a definite period of
six months.
Hence, if at all, the impact of Proclamation No. 475 on
the right to travel is not direct but merely consequential;
and, the same is only for a reasonably short period of
time or merely temporary.
In this light, a discussion on whether President Duterte
exercised a power legislative in nature loses its
significance. Since Proclamation No. 475 does not
actually impose a restriction on the right to travel, its
issuance did not result to any substantial alteration of the
relationship between the State and the people. The
proclamation is therefore not a law and conversely, the
President did not usurp the law-making power of the
legislature.
For obvious reason, there is likewise no more need to
determine the existence in this case of the requirements
for a valid impairment of the right to travel.
Even if it is otherwise, Proclamation
No. 475 must be upheld for being in
the nature of a valid police power
measure
Police power, amongst the three fundamental and
inherent powers of the state, is the most pervasive and
comprehensive.40 "It has been defined as the 'state
authority to enact legislation that may interfere with
personal liberty or property in order to promote general
welfare."41 "As defined, it consists of (1) imposition or
restraint upon liberty or property, (2) in order to foster
the common good. It is not capable of exact definition
but has be purposely, veiled in general terms to
underscore its all-comprehensive embrace." 42 The police
power "finds no specific Constitutional grant for the
plain reason that it does not owe its origin to the
Charter"43 since "it is inborn in the very fact of statehood
and sovereignty."44 It is said to be the "inherent and
plenary power of the State which enables it to prohibit
all things hurtful to the comfort, safety, and welfare of
the society."45 Thus, police power constitutes an implied
limitation on the Bill of Rights. 46 After all, "the Bill of
Rights itself does not purport to be an absolute guaranty
of individual rights and liberties. 'Even liberty itself, the
greatest of all rights, is not unrestricted license to act
according to one's will.' It is subject to the far more
overriding demands and requirements of the greater
number."47
"Expansive and extensive as its reach may be, police
power is not a force without limits."48 "It has to be
exercised within bounds - lawful ends through lawful
means, i.e., that the interests of the public generally, as
distinguished from that of a particular class, require its
exercise, and that the means employed are reasonably
necessary for the accomplishment of the purpose while
not being unduly oppressive upon individuals."49
That the assailed governmental measure in this case is
within the scope of police power cannot be disputed.
Verily, the statutes50 from which the said measure draws
authority and the constitutional provisions51 which serve
as its framework are primarily concerned with the
environment and health, safety, and well-being of the
people, the promotion and securing of which are clearly
legitimate objectives of governmental efforts and
regulations. The motivating factor in the issuance of
Proclamation No. 475 is without a doubt the interest of
the public in general. The only question now is whether
the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly
oppressive upon individuals.
The pressing need to implement urgent measures to
rehabilitate Boracay is beyond cavil from the factual
milieu that precipitated the President's issuance of
Proclamation No. 475. This necessity is even made more
critical and insistent by what the Court said in Oposa v.
Hon. Factoran, Jr. 52 in regard the rights to a balanced
and healthful ecology and to health, which rights are
likewise integral concerns in this case. Oposa warned
72
that unless the rights to a balanced and healthful ecology
and to health are given continuing importance and the
State assumes its solemn obligation to preserve and
protect them, the time will come that nothing will be left
not only for this generation but for the generations to
come as well. 53 It further taught that the right to a
balanced and healthful ecology carries with it the
correlative duty to refrain from impairing the
environment. 54
Against the foregoing backdrop, we now pose this
question: Was the temporary closure of Boracay as a
tourist destination for six months reasonably necessary
under the circumstances? The answer is in the
affirmative.
As earlier noted, one of the root causes of the problems
that beset Boracay was tourist influx. Tourist arrivals in
the island were clearly far more than Boracay could
handle. As early as 2007, the DENR had already
determined this as the major cause of the catastrophic
depletion of the island's biodiversity. 55 Also part of the
equation is the lack of commitment to effectively
enforce pertinent environmental laws. Unfortunately,
direct action on these matters has been so elusive that the
situation reached a critical level. Hence, by then, only
bold and sweeping steps were required by the situation.
Certainly, the closure of Boracay, albeit temporarily,
gave the island its much needed breather, and likewise
afforded the government the necessary leeway in its
rehabilitation program. Note that apart from review,
evaluation and amendment of relevant policies, the bulk
of the rehabilitation activities involved inspection,
testing, demolition, relocation, and construction. These
works could not have easily been done with tourists
present. The rehabilitation works in the first place were
not simple, superficial or mere cosmetic but rather quite
complicated, major, and permanent in character as they
were intended to serve as long-term solutions to the
problem. 56 Also, time is of the essence. Every precious
moment lost is to the detriment of Boracay's
environment and of the health and well-being of the
people thereat. Hence, any unnecessary distraction or
disruption is most unwelcome. Moreover, as part of the
rehabilitation efforts, operations of establishments in
Boracay had to be halted in the course thereof since
majority, if not all of them, need to comply with
environmental and regulatory requirements in order to
align themselves with the government's goal to restore
Boracay into normalcy and develop its sustainability.
Allowing tourists into the island while it was undergoing
necessary rehabilitation would therefore be pointless as
no establishment would cater to their accommodation
and other needs. Besides, it could not be said that
Boracay, at the time of the issuance of the questioned
proclamation, was in such a physical state that would
meet its purpose of being a tourist destination. For one,
its beach waters could not be said to be totally safe for
swimming. In any case, the closure, to emphasize, was
only for a definite period of six months, i.e., from April
26, 2018 to October 25, 2018. To the mind of the Court,
this period constitutes a reasonable time frame, if not to
complete, but to at least put in place the necessary
rehabilitation works to be done in the island. Indeed, the
temporary closure of Boracay, although unprecedented
and radical as it may seem, was reasonably necessary
and not unduly oppressive under the circumstances. It
was the most practical and realistic means of ensuring
that rehabilitation works in the island are started and
carried out in the most efficacious and expeditious way.
Absent a clear showing of grave abuse of discretion,
unreasonableness, arbitrariness or oppressiveness, the
Court will not disturb the executive determination that
the closure of Boracay was necessitated by the foregoing
circumstances. As earlier noted, petitioners totally failed
to counter the factual bases of, and justification for the
challenged executive action.
Undoubtedly, Proclamation No. 475 is a valid police
power measure. To repeat, police power constitutes an
implied limitation to the Bill of Rights, and that even
liberty itself, the greatest of all rights, is subject to the far
more overriding demands and requirements of the
greater number.
For the above reasons, petitioners' constitutional
challenge on Proclamation No. 475 anchored on their
perceived impairment of the right to travel must fail.
Petitioners have no vested rights on
their sources of income as to be
entitled to due process
Petitioners argue that Proclamation No. 475 impinges on
their constitutional right to due process since they were
deprived of the corollary right to work and earn a living
by reason of the issuance thereof.
Concededly, "[a] profession, trade or calling is a
property right within the meaning of our constitutional
guarantees. One cannot be deprived of the right to work
and the right to make a living because these rights are
property rights, the arbitrary and unwarranted
deprivation of which normally constitutes an actionable
wrong."57 Under this premise, petitioners claim that they
were deprived of due process when their right to work
and earn a living was taken away from them when
Boracay was ordered closed as a tourist destination. It
must be stressed, though, that "when the conditions so
demand as determined by the legislature, property rights
must bow to the primacy of police power because
property rights, though sheltered by due process, must
yield to general welfare."58 Otherwise, police power as
an attribute to promote the common good would be
diluted considerably if on the mere plea of petitioners
that they will suffer loss of earnings and capital,
government measures implemented pursuant to the said
state power would be stymied or invalidated. 59
In any case, petitioners, particularly Zabal and
Jacosalem, cannot be said to have already acquired
vested rights to their sources of income in Boracay. As
heretofore mentioned, they are part of the informal
sector of the economy where earnings are not
guaranteed. In Southern Luzon Drug Corporation v.
Department of Social Welfare and Development, 60 the
Court elucidated on vested rights, as follows:
x x x Vested rights are 'fixed, unalterable, or
irrevocable.' More extensively, they are depicted as
follows:
73
Rights which have so completely and definitely accrued
to or settled in a person that they are not subject to be
defeated or cancelled by the act of any other private
person, and which it is right and equitable that the
government should recognize and protect, as being
lawful in themselves, and settled according to the then
current rules of law, and of which the individual could
not be deprived arbitrarily without injustice, or of which
he could not justly be deprived otherwise than by the
established methods of procedure and for the public
welfare. x x x A right is not 'vested' unless it is more
than a mere expectancy based on the anticipated
continuance of present laws; it must be an established
interest in property, not open to doubt. x x x To be
vested in its accurate legal sense, a right must be
complete and consummated, and one of which the
person to whom it belongs cannot be divested without
his consent. x x x61
Here, Zabal and J acosalem 's asserted right to whatever
they may earn from tourist arrivals in Boracay is merely
an inchoate right or one that has not fully developed and
therefore cannot be claimed as one's own. An inchoate
right is a mere expectation, which may or may not come
into fruition. "It is contingent as it only comes 'into
existence on an event or condition which may not
happen or be performed until some other event may
prevent their vesting.’’’’62 Clearly, said petitioners'
earnings are contingent in that, even assuming tourists
are still allowed in the island, the will still earn nothing
if no one avails of their services. Certainly, they do not
possess any vested right on their sources of income, and
under this context, their claim of lack of due process
collapses. To stress, only rights which have completely
and definitely accrued and settled are entitled protection
under the due process clause.
Besides, Proclamation No. 475 does not strip Zabal and
Jacosalem of their right to work and earn a living. They
are free to work and practice their trade elsewhere. That
they were not able to do so in Boracay, at least for the
duration of its closure, is a necessary consequence of the
police power measure to close and rehabilitate the island.
Also clearly untenable is petitioners' claim that they
were being made to suffer the consequences of the
environmental transgressions of others. It must be
stressed that the temporary closure of Boracay as a
tourist destination and the consequent ban of tourists into
the island were not meant to serve as penalty to violators
of environmental laws. The temporary closure does not
erase the environmental violations committed; hence, the
liabilities of the violators remain and only they alone
shall suffer the same. The temporary inconvenience that
petitioners or other persons may have experienced or are
experiencing is but the consequence of the police
measure intended to attain a much higher purpose, that
is, to protect the environment, the health of the people,
and the general welfare. Indeed, any and all persons may
be burdened by measures intended for the common good
or to serve some important governmental interest. 63
No intrusion into the autonomy of the
concerned LGUs
The alleged intrusion of the President into the autonomy
of the LG Us concerned is likewise too trivial to merit
this Court's consideration. Contrary to petitioners'
argument, RA 10121 recognizes and even puts a
premium on the role of the LG Us in disaster risk
reduction and management as shown by the fact that a
number of the legislative policies set out in the subject
statute recognize and aim to strengthen the powers
decentralized to LGUs. 64 This role is echoed in the
questioned proclamation.
The fact that other government agencies are involved in
the rehabilitation works does not create the inference
that the powers and functions of the LGUs are being
encroached upon. The respective roles of each
government agency are particularly defined and
enumerated in Executive Order No. 5365 and all are in
accordance with their respective mandates. Also, the
situation in Boracay can in no wise be characterized or
labelled as a mere local issue as to leave its rehabilitation
to local actors. Boracay is a prime tourist destination
which caters to both local and foreign tourists. Any issue
thereat has corresponding effects, direct or otherwise, at
a national level. This, for one, reasonably takes the
issues therein from a level that concerns only the local
officials. At any rate, notice must be taken of the fact
that even if the concerned LGUs have long been fully
aware of the problems afflicting Boracay, they failed to
effectively remedy it. Yet still, in recognition of their
mandated roles and involvement in the rehabilitation of
Boracay, Proclamation No. 475 directed "[a]ll
departments, agencies and offices, including
government-owned or controlled corporations
and affected local government units x x x to implement
and execute xx x the closure [of Boracay] and the
appropriate rehabilitation works, in accordance with
pertinent operational plans and directives, including the
Boracay Action Plan."
As a final note, the Court in Metropolitan Manila
Development Authority v. Concerned Residents of
Manila Bay, 66 called out the concerned government
agencies for their cavalier attitude towards solving
environmental destruction despite hard evidence and
clear signs of climate crisis. It equated the failure to put
environmental protection on a plane of high national
priority to the then lacking level of bureaucratic
efficiency and commitment. Hence, the Court therein
took it upon itself to put the heads of concerned
department-agencies and the bureaus and offices under
them on continuing notice and to enjoin them to perform
their mandates and duties towards the clean-up and/or
restoration of Manila Bay, through a
"continuing mandamus." It likewise took the occasion to
state, viz.:
In the light of the ongoing environmental degradation,
the Court wishes to emphasize the extreme necessity for
all concerned executive departments and agencies to
immediately act and discharge their respective official
duties and obligations. Indeed, time is of the essence;
hence, there is a need to set timetables for the
performance and completion of the tasks, some of them
as defined for them by law and the nature of their
respective offices and mandates.
74
The importance of the Manila Bay as a sea resource,
playground and as a historical landmark cannot be over-
emphasized. It is not yet too late in the day to restore the
Manila Bay to its former splendor and bring back the
plants and sea life that once thrived in its blue waters.
But the tasks ahead, daunting as they may be, could only
be accomplished if those mandated, with the help and
cooperation of all civic-minded individuals, would put
their minds to these tasks and take responsibility. This
means that the State, through [the concerned department-
agencies], has to take the lead in the preservation and
protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures
is over. [The concerned department-agencies] must
transcend their limitations, real or imaginary, and buckle
down to work before the problem at hand becomes
unmanageable. Thus, we must reiterate that different
government agencies and instrumentalities cannot shirk
from their mandates; they must perform their basic
functions in cleaning up and rehabilitating the Manila
Bay. x x x67
There is an obvious similarity in Metropolitan Manila
Development Authority and in the present case in that
both involve the restoration of key areas in the country
which were once glowing with radiance and vitality but
are now in shambles due to abuses and exploitation.
What sets these two cases apart is that in the former,
those mandated to act still needed to be enjoined in order
to act. In this case, the bold and urgent action demanded
by the Court in Metropolitan Manila Development
Authority is now in the roll out. Still, the voice of
cynicism, naysayers, and procrastinators heard during
times of inaction can still be heard during this time of
full action - demonstrating a classic case of "damn if you
do, damn if you don't". Thus, in order for the now
staunch commitment to save the environment not to
fade, it behooves upon the courts to be extra cautious in
invalidating government measures meant towards
addressing environmental degradation. Absent any clear
showing of constitutional infirmity, arbitrariness or
grave abuse of discretion, these measures must be upheld
and even lauded and promoted. After all, not much time
is left for us to remedy the present environmental
situation. To borrow from Oposa, unless the State
undertakes its solemn obligation to preserve the rights to
a balanced and healthful ecology and advance the health
of the people, "the day would not be too far when all else
would be lost not only for the present generation, but
also for those to come - generations which stand to
inherit nothing but parched earth incapable of sustaining
life."68
All told, the Court sustains the constitutionality and
validity of Proclamation No. 475.
WHEREFORE, the Petition for Prohibition
and Mandamus is DISMISSED.
SO ORDERED.
Bersamin (C.J.), Peralta, A. Reyes, Jr., Gesmundo, J.
Reyes, Jr., Hernando, and Carandang, JJ., concur.
Carpio and Perlas-Bernabe, JJ., see separate concurring
opinions.
Leonen, J., dissent. See separate opinion.
Jardeleza, J., see concurring and dissenting opinion.
Caguioa, J., dissent. See dissenting opinion.
DISSENTING OPINION
We can save ourselves, but only if we let go of
the myth of dominance and mastery and learn
to work with nature
Naomi Klein
The primary threat to nature and people today
comes from centralizing and monopolizing
power and control. Not until diversity is made
the logic of production will there be a chance for
sustainability, justice and peace. Cultivating and
conserving diversity is no luxury in our times: it
is a survival imperative.
Vandana Shiva
LEONEN, J.:
With respect to my esteemed colleagues, I dissent.
Proclamation No. 475, s. 2018 (or the Proclamation) is
unconstitutional, as it is an impermissible exercise of
police power.
It violates the right to life and liberty properly invoked
by petitioners without due process of law. The
Proclamation imposes a closure and a deprivation of the
livelihood of those who have not been shown to have
caused the high levels of fecal coliform and other human
made incursions into Boracay's ecology which invited
President Rodrigo Duterte's drastic actions. The specific
actions and programs to be undertaken during the
closure of the entire island, so as to properly advise the
residents, workers, and others interested, are not clearly
stated. The six (6)-month duration of the closure is
arbitrary. The state of calamity will persist even after the
closure expires. The lifting of the declaration of the state
of calamity is not preceded by any discernible standard.
The Department of the Interior and Local Government
"Guidelines" (DILG Guidelines) for the closure were
issued prior to the promulgation of the Proclamation. It
is inconsistent with the latter, containing provisions with
serious constitutional implications.
The Proclamation is unduly vague. It is
unconstitutionally broad.
Proclamation No. 475 is contrary to the very statutes it
allegedly implements, Republic Acts No. 101211 and
9275.2 The ecological problem in Boracay is not the
calamity envisioned in Republic Act No. 10121 or the
Philippine Disaster Risk Reduction and Management
Act of 2010. By exercising control rather than merely
supervision, the Presidential exercise violates the
constitutionally protected principle of local autonomy.
Contrary to the Majority's view, such infringement is
neither incidental nor marginal.
75
Assuming that a state of calamity was properly declared,
the Proclamation upends the framework of locally-led
remediation and rehabilitation efforts mandated by the
statutes. By declaring that only the President can lift the
declaration, the Proclamation violates Republic Act No.
10121.
Human induced ecological disasters need to be
addressed deliberately, systematically, structurally and
with all institutions of government actively engaging
public participation. There are laws already in place that
could have been properly enforced. The right intentions
however must always be accompanied by the right and
legal means. The Majority's tolerance for the dramatic
and drastic actions of the Chief Executive violates the
rule of law and undermines constitutional democracy.
Considering the many calamities our society has to face,
upholding the framework contained in Proclamation No.
475 invites a regime that is borderline authoritarian.
I action per quod servitium amisit, was resorted to, and by
The Petition raises questions relating to petitioners' right
to travel and right to due process. I join Associate Justice
Alfredo Benjamin Caguioa's view that the right to travel
has been violated especially in light of the most recent
unanimous decision of this Court in Genuino v De
Lima.3 Fundamentally, however, I vote to grant the
Petition on due process grounds.
The basic rights asserted by petitioners are
acknowledged in Article III, Section 1 of the
Constitution:
SECTION 1. No person shall be deprived of life, liberty
or property without due process of law[.]
The due process clause is written as a proscription. 4 It
implies a sphere of individual autonomy that is
constitutionally protected. As early as 1890, in the
seminal work of Louis D. Brandeis and Samuel Warren,
this sphere was referred to as the "right to be left alone"
from interference by the State. Reviewing its evolution
in common law:
That the individual shall have full protection in person
and in property is a principle as old as the common law;
but it has been found necessary from time to time to
define anew the exact nature and extent of such
protection. Political, social and economic changes entail
the recognition of new rights, and the common law, in its
eternal youth, grows to meet the demands of society.
Thus, in very early times, the law gave a remedy only for
physical interference with life and property, for
trespasses vi et armis. Then the "right to life" served
only to protect the subject from battery in its various
forms; liberty meant freedom from actual restraint; and
the right to property secured to the individual his lands
and his cattle. Later, there came a recognition of man's
spiritual nature, of his feelings and his intellect.
Gradually the scope of these legal rights broadened; and
now the right to life has come to mean the right to enjoy
life,—the right to be let alone; the right to liberty secures
the exercise of extensive civil privileges; and the term
"property" has grown to comprise every form of
possession—intangible, as well as tangible.
Thus, with the recognition of the legal value of
sensations, the protection against actual bodily injury
was extended to prohibit mere attempts to do such
injury; that is, the putting another in fear of such injury.
From the action of battery grew that of assault. Much
later there came a qualified protection of the individual
against offensive noises and odors, against dust and
smoke and excessive vibration. The law of nuisance was
developed. So regard for human emotions soon extended
the scope of personal immunity beyond the body of the
individual. His reputation, the standing among his
fellow-men, was considered, and the law of slander and
libel arose. Man's family relations became a part of the
legal conception of his life, and the alienation of a wife's
affections was held remediable. Occasionally the law
halted,—as in its refusal to recognize the intrusion by
seduction upon the honor of the family. But even here
the demands of society were met. A mean fiction, the
allowing damages for injury to the parents' feelings, an
adequate remedy was oridinarily afforded. Similar to the
expansion of the right to life was the growth of the legal
conception of property. From corporeal property arose
the incorporeal rights issuing out of it; and then there
opened the wide realm of intangible property, in the
products and processes of the mind, as works of
literature and art, goodwill, trade secrets, and
trademarks.
This development of the law was inevitable. 5 (Citations
omitted)
The structure of the due process clause and the
primordial value it conceals do not limit protection of
life only to one's corporeal existence.6 Liberty is more
than just physical restraint. Even property can be
incorporeal.7
In Secretary of National Defense et al. v. Manalo et al.:8
While the right to life under Article III, Section 1
guarantees essentially the right to be alive—upon which
the enjoyment of all other rights is preconditioned—the
right to security of person is a guarantee of the secure
quality of this life, viz.: "The life to which each person
has a right is not a life lived in fear that his person and
property may be unreasonably violated by a powerful
ruler. Rather, it is a life lived with the assurance that the
government he established and consented to, will protect
the security of his person and property. The ideal of
security in life and property . . . pervades the whole
history of man. It touches every aspect of man's
existence." In a broad sense, the right to security of
person "emanates in a person's legal and uninterrupted
enjoyment of his life, his limbs, his body, his health, and
his reputation. It includes the right to exist, and the
enjoyment of life while existing, and it is invaded not
only by a deprivation of life but also of those things
which are necessary to the enjoyment of life according to
the nature, temperament and lawful desires of the
individual.9 (Citations omitted)
76
City of Manila v. Laguio, Jr.10 reiterated the broad
conception of the right to life and liberty:
[T]he right to exist and the right to be free from arbitrary
restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the
citizen, but is deemed to embrace the right of man to
enjoy the faculties with which he has been endowed by
his Creator, subject only to such restraint as are
necessary for the common welfare.11 (Emphasis
supplied, citation omitted)
The rights to life and liberty are inextricably woven. Life
is nothing without liberties. Without a full life, the fullest
of liberties protected by our constitutional order will not
happen. Again, in City of Manila:
While the Court has not attempted to define with
exactness the liberty ... guaranteed [by the Fifth and
Fourteenth Amendments], the term denotes not merely
freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to
worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long
recognized ... as essential to the orderly pursuit of
happiness by free men. In a Constitution for a free
people, there can be no doubt that the meaning of
"liberty" must be broad indeed. 12 (Emphasis supplied)
Thereafter:
These matters, involving the most intimate and personal
choices a person may make in a lifetime, choices central
to personal dignity and autonomy, are central to the
liberty protected by the Fourteenth Amendment. At the
heart of liberty is the right to define one's own concept
of existence, of meaning, of universe, and of the mystery
of human life. Beliefs about these matters could not
define the attributes of personhood where they formed
under compulsion of the State. 13
Likewise, in my Concurring Opinion in Spark v Quezon
City: 14
Speaking of life and its protection does not merely entail
ensuring biological subsistence. It is not just a
proscription against killing. Likewise, speaking of
liberty and its protection does not merely involve a lack
of physical restraint. The objects of the constitutional
protection of due process are better understood
dynamically and from a frame of consummate human
dignity. They are likewise better understood integrally,
operating in a synergistic frame that serves to secure a
person's integrity.
"Life, liberty and property" is akin to the United Nations'
formulation of "life, liberty, and security of person" and
the American formulation of "life, liberty and the pursuit
of happiness." As the American Declaration of
Independence postulates, they are "unalienable rights"
for which "[g]overnments are instituted among men" in
order that they may be secured. Securing them denotes
pursuing and obtaining them, as much as it denotes
preserving them. The formulation is, thus, an
aspirational declaration, not merely operating on factual
givens but enabling the pursuit of ideals.
"Life," then, is more appropriately understood as the
fullness of human potential: not merely organic,
physiological existence, but consummate self-
actualization, enabled and effected not only by freedom
from bodily restraint but by facilitating an empowering
existence. "Life and liberty," placed in the context of a
constitutional aspiration, it then becomes the duty of the
government to facilitate this empowering existence. This
is not an inventively novel understanding but one that
has been at the bedrock of our social and political
conceptions. As Justice George Malcolm, speaking for
this Court in 1919, articulated:
Civil liberty may be said to mean that measure of
freedom which may be enjoyed in a civilized
community, consistently with the peaceful enjoyment of
like freedom in others. The right to liberty guaranteed by
the Constitution includes the right to exist and the right
to be free from arbitrary personal restraint or servitude.
The term cannot be dwarfed into mere freedom from
physical restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy the
faculties with which he has been endowed by his
Creator, subject only to such restraints as are necessary
for the common welfare. As enunciated in a long an-ay
of authorities including epoch-making decisions of the
United States Supreme Court, liberty includes the right
of the citizen to be free to use his faculties in lawful
ways; to live and work where he will; to earn his
livelihood by any lawful calling; to pursue any
avocation, and for that purpose, to enter into all contracts
which may be proper, necessary, and essential to his
carrying out these purposes to a successful conclusion.
The chief elements of the guaranty are the right to
contract, the right to choose one's employment, the right
to labor, and the right of locomotion.
It is in this sense that the constitutional listing of the
objects of due process protection admits amorphous
bounds. The constitutional protection of life and liberty
encompasses a penumbra of cognate rights that is not
fixed but evolves - expanding liberty - alongside the
contemporaneous reality in which the Constitution
operates. People v. Hernandez illustrated how the right
to liberty is multi-faceted and is not limited to its initial
formulation in the due process clause:
[T]he preservation of liberty is such a major
preoccupation of our political system that, not satisfied
with guaranteeing its enjoyment in the very first
paragraph of section (1) of the Bill of Rights, the framers
of our Constitution devoted paragraphs (3), (4), (5), (6),
(7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and
(21) of said section (1) to the protection of several
aspects of freedom. 15 (Citations omitted)
Petitioners assert that due process covers the right to
livelihood, to work and earn a living. 16 The pleadings
were brought by a sandcastle builder, a driver, and a
non-resident. The first two (2) are informal workers who
have no economic resources other than their ability to
provide their services. The last petitioner is a citizen
77
claiming his right, as a Filipino, to enjoy the natural
beauty of his country-his right to travel.
The majority unfortunately canisters this right as falling
under the right to property. The argument is that since
petitioners have no vested rights on their sources of
income, they are not entitled to due process. Even if
tourists were still allowed in the island, they earn
nothing if no one avails of their services. Thus, since
petitioners' earnings are contingent and merely inchoate,
the right to property does not yet exist.
I disagree.
The right invoked is not merely the right to property.
The right to livelihood falls within the spectrum of the
almost inviolable right to life and liberty. The ability to
answer a calling, evolve, and create a better version of
oneself, in the process of serving others, is a
quintessential part of one's life. The right to life is not a
mere corporeal existence, but includes one's choice of
occupation. This is as important as to those who belong
to the informal sector. It is an aspect of social justice that
their right to be able to earn a livelihood should be
protected by our Constitution.
In the hierarchy of rights, the right to life and the right to
liberty sit higher than the right to property. This is also
the import of Article II, Section 11 of the Constitution
which provides:
SECTION 11. The State values the dignity of every
human person and guarantees full respect for human
rights.
We recognize the primacy of human rights over property
rights because these rights are "delicate and
vulnerable[.]" They are so precious in our society, such
that the threat of sanctions may deter their exercise
almost as strongly as the actual application of sanctions.
They "need breathing space to survive"; thus,
government regulation is allowable only with "narrow
specificity." 17
In contrast, property rights may be readily qualified as
evidenced. By the many rules and laws that have been
enacted on property ownership and possession. Article
XII, Section 6 of the Constitution qualifies the right to
property:
SECTION 6. The use of property bears as social
function, and all economic agents shall contribute to the
common good. Individuals and private groups, including
corporations, cooperatives, and similar collective
organizations, shall have the right to own, establish, and
operate economic enterprises, subject to the duty of the
State to promote distributive justice and to intervene
when the common good so demands.
As early as in Ermita-Malate Hotel and Motel Operators
Association v. City of Manila, 18 this Court already
emphasized that ifthe liberty involved were "freedom of
the mind or the person, the standard for the validity of
governmental acts is much more rigorous and exacting,
but where the liberty curtailed affects at the most rights
of property, the permissible scope of regulatory
measures is wider." 19
We are not confronted with a situation where the
government simply regulates one's occupation. Here, the
shutdown contemplated in Proclamation No. 475 is
complete. The total deprivation of their right to exercise
their occupation was curtailed.
For those who have a very regular and lucrative source
of income, a period of six (6) months may not be a long
time. However, to those within the informal sector,
losing their jobs even for a day can spell disaster not
only for themselves, but also for their families. Not only
do they have legal standing to challenge the
Proclamation, but they also do so invoking one (1) of the
most primordial of our fundamental rights.
The Proclamation deprives them of their livelihood not
for a day, for a week, or for even a month, but for six (6)
months. The Proclamation itself-or any law that is
purportedly meant to have authorized the issuance of
such proclamation-does not provide a credible means of
compensation for them. It does not mention any remedial
measures for those whose rights will be affected. It is not
only police power that exists. Fundamental rights vested
by the Constitution could only be considered collateral
damage undeserving of any form of redress.
Parenthetically, even if the characterization of their plea
belongs to the right to property, Southern Luzon Drug
Corporation v. Department of Social Welfare and
Development, 20 is not on point.
In Southern Luzon Drug Corporation, we dealt with the
question as to whether the shift in tax treatment of the
20% discount given to senior citizens and persons with
disability was a valid exercise of police power. The case
did not involve the livelihood of individuals; rather, it
involved the profits of an ongoing business.
Furthermore, the businesses affected by the senior
citizen's discount were not suspended. The case only
concerned itself on the proper way of computing their
taxes for incomes they have not yet received.
There is a fundamental difference in treatment between a
business and human labor under our Constitution.
Human labor is given more protection. This is found in
Article XIII, Section 3 of the Constitution:
SECTION 3. The State shall afford full protection to
labor, local and overseas, organized and unorganized,
and promote full employment and equality of
employment opportunities for all.
Here, what happened was not a mere regulation of a
business. It was a closure of an entire island that ceased
to make any of the means to a livelihood known to them
possible.
It is unfortunate that the Majority made judicial findings
accepting the government's argument that petitioners
were free to move and practice their profession
elsewhere.21 This was without basis.
78
Not all informal workers are mobile simply because not
all of them have financial resources to move from one
(1) place to another. Not all of them have multiple skills
that would allow them the flexibility to be employed in
another line of work immediately when their current
consistent source of income stops. Precisely, they
become part of the informal sector because through their
circumstances, they have been unable to evolve to more
marketable skills. To nonchalantly assume that they can
find other jobs should not be an acceptable judicial
approach, as that may trivialize the rights they assert. It
is an unfortunate-though perhaps unintended-display of
our lack of compassion for the plight of petitioners.
Certainly, this is not the judicial approach sanctioned by
our Constitution. Article II, Sections 9 and 10 of the
Constitution call attention to sensitivity to social justice,
thus:
SECTION 9. The State shall promote a just and dynamic
social order that will ensure the prosperity and
independence of the nation and free the people from
poverty through policies that provide adequate social
services, promote full employment, a rising standard of
living, and an improved quality of life for all.
SECTION I 0. The State shall promote social justice in
all phases of national development.
Together, these constitutional provisions provide that
social justice cannot be achieved through an
overgeneralized understanding of labor. The informal
sector, represented by petitioners, does not have the
same mobility of other workers who have more skills.
They do not also have the same mobility as the
businesses that filed the petition in Southern Luzon Drug
Corporation. 22
Undoubtedly, here, the total negation of petitioners'
opportunity to do their livelihood was a deprivation of
their right to life and liberty. Definitely, they had
standing to sue.
II
The breadth of the constitutional protection of life and
liberty may continue to evolve with contemporary
realities. However, the textual basis in the Constitution is
fixed: any intrusion must be with due process of law.
Jurisprudence evolved three (3) levels of due process
analysis.
In Ermita Malate Hotel and Motel Operators
Association, 23 where the validity of an ordinance was
upheld, this Court reasoned that the ordinance was a
police power measure aimed at safeguarding public
morals, and thus, is immune from imputation of nullity:
To hold otherwise would be to unduly restrict and
narrow the scope of police power which has been
properly characterized as the most essential, insistent
and the least limit able of powers, extending as it does
"to all the great public needs." It would be, to paraphrase
another leading decision, to destroy the very purpose of
the state if it could be deprived or allowed itself to be
deprived of its competence to promote public health,
public morals, public safety and the general welfare.
Negatively put, police power is "that inherent and
plenary power in the State which enables it to prohibit
all that is hurtful to the comfort, safety, and welfare of
society."24 (Emphasis supplied)
In that case, the Court viewed due process as merely
requiring that the challenged action "must not outrun the
bounds of reasons and result in sheer oppression. Due
process is thus hostile to any official action marred by
lack of reasonableness. Correctly has it been identified
as freedom from arbitrariness. It is the embodiment of
the sporting idea of fair play."25
Decades later, in City of Manila, 26 an ordinance that
prohibited persons and corporations from contracting
and engaging in any business providing certain forms of
amusement, entertainment, services, and facilities, where
women were used as tools in entertainment, was struck
down as unconstitutional because it affected the moral
welfare of the community. This Court clearly defined the
test of a valid ordinance:
[I]t must not only be within the corporate powers of the
local government unit to enact and must be passed
according to the procedure prescribed by law, it must
also conform to the following substantive requirements:
(1) must not contravene the Constitution or any statute;
(2) must not be unfair or oppressive; (3) must not be
partial or discriminatory; (4) must not prohibit but may
regulate trade; (5) must be general and consistent with
public policy; and ( 6) must not be unreasonable. 27
Only a few years later, in White Light Corporation v.
City of Manila, 28 this Court elaborated:
The general test of the validity of an ordinance on
substantive due process grounds is best tested when
assessed with the evolved footnote 4 test laid down by
the U.S. Supreme Court in US. v. Carotene
Products. Footnote 4 of the Carolene Products case
acknowledged that the judiciary would defer to the
legislature unless there is a discrimination against a
"discrete and insular" minority or infringement of a
"fundamental right". Consequently, two standards of
judicial review were established: strict scrutiny for laws
dealing with freedom of the mind or restricting the
political process, and the rational basis standard of
review for economic legislation.
A third standard, denominated as heightened or
immediate scrutiny, was later adopted by the U.S.
Supreme Court for evaluating classifications based on
gender and legitimacy.1âшphi1 Immediate scrutiny was
adopted by the U.S. Supreme Court in Craig, after the
Court declined to do so in Reed v. Reed. While the test
may have first been articulated in equal protection
analysis, it has in the United States since been applied in
all substantive due process cases as well.
We ourselves have often applied the rational basis test
mainly in analysis of equal protection challenges. Using
the rational basis examination, laws or ordinances are
upheld if they rationally further a legitimate
79
governmental interest. Under intermediate review,
governmental interest is extensively examined and the
availability of less restrictive measures is considered.
Applying strict scrutiny, the focus is on the presence of
compelling, rather than substantial, governmental
interest and on the absence of less restrictive means for
achieving that interest. In terms of judicial review of
statutes or ordinances, strict scrutiny refers to the
standard for determining the quality and the amount of
governmental interest brought to justify the regulation of
fundamental freedoms. Strict scrutiny is used today to
test the validity of laws dealing with the regulation of
speech, gender, or race as well as other fundamental
rights as expansion from its earlier applications to equal
protection. The United States Supreme Court has
expanded the scope of strict scrutiny to protect
fundamental rights such as suffrage, judicial access and
interstate travel. 29 (Citations omitted)
Recently, in Fernando, et al. v. St. Scholastica's College,
et al., 30 we again discussed the three (3) levels of tests
employed when there is a breach of a fundamental right.
In Spark v. Quezon City, 31 I reviewed in a Concurring
Opinion the extent of the three (3) modes of due process
review:
An appraisal of due process and equal protection
challenges against government regulation must admit
that the gravity of interests invoked by the government
and the personal liberties or classification affected are
not uniform. Hence, the three (3) levels of analysis that
demand careful calibration: the rational basis test,
intermediate review, and strict scrutiny. Each level is
typified by the dual considerations of: first, the interest
invoked by the government; and second, the means
employed to achieve that interest.
The rational basis test requires only that there be a
legitimate government interest and that there is a
reasonable connection between it and the means
employed to achieve it.
Intermediate review requires an important government
interest. Here, it would suffice if government is able to
demonstrate substantial connection between its interest
and the means it employs. In accordance with White
Light, "the availability of less restrictive measures [must
have been] considered." This demands a conscientious
effort at devising the least restrictive means for attaining
its avowed interest. It is enough that the means
employed is conceptually the least restrictive mechanism
that the government may apply.
Strict scrutiny applies when what is at stake are
fundamental freedoms or what is involved are suspect
classifications. It requires that there be a compelling
state interest and that the means employed to effect it are
narrowly-tailored, actually - not only conceptually -
being the least restrictive means for effecting the
invoked interest. Here, it does not suffice that the
government contemplated on the means available to it.
Rather, it must show an active effort at demonstrating
the inefficacy of all possible alternatives. Here, it is
required to not only explore all possible avenues but to
even debunk the viability of alternatives so as to ensure
that its chosen course of action is the sole effective
means. To the extent practicable, this must be supported
by sound data gathering mechanisms.
Central Bank Employees Association, Inc. v. Bangko
Sentral ng Pilipinas further explained:
Under most circumstances, the Court will exercise
judicial restraint in deciding questions of
constitutionality, recognizing the broad discretion given
to Congress in exercising its legislative power. Judicial
scrutiny would be based on the "rational basis" test, and
the legislative discretion would be given deferential
treatment.
But if the challenge to the statute is premised on the
denial of a fundamental right, or the perpetuation of
prejudice against persons favored by the Constitution
with special protection, judicial scrutiny ought to be
more strict. A weak and watered down view would call
for the abdication of this Court's solemn duty to strike
down any law repugnant to the Constitution and the
rights it enshrines. This is true whether the actor
committing the unconstitutional act is a private person or
the government itself or one of its instrumentalities.
Oppressive acts will be struck down regardless of the
character or nature of the actor.
Cases involving strict scrutiny innately favor the
preservation of fundamental rights and the non-
discrimination of protected classes. Thus, in these cases,
the burden falls upon the government to prove that it was
impelled by a compelling state interest and that there is
actually no other less restrictive mechanism for realizing
the interest that it invokes:
Applying strict scrutiny, the focus is on the presence of
compelling, rather than substantial, governmental
interest and on the absence of less restrictive means for
achieving that interest, and the burden befalls upon the
State to prove the same. 32 (Emphasis in the original,
citations omitted)
The Constitution mandates more sensitivity towards
several classes and identities found within our society.
Social justice at all levels of governances is an
overarching state policy. This envisions a dynamic social
order that will ensure prosperity and "free the people
from poverty" 33 through policies which "provide
adequate social services, promote full employment, a
rising standard of living, and an improved quality of life
for all."34 Our fundamental law "values the dignity of
every human person and guarantees full respect for
human rights."35 Women, the youth, indigenous peoples,
farmers and farmworkers, labor in general enjoy
significant protection.
These provisions are not merely sardonic normative
ornaments. Those who find themselves at the margins of
society-through the operation of an oppressive political
economy, or the stereotypes of contemporary culture, or
as residues of our colonial past-deserve more judicial
sensitivity. With respect to the due process clause, it
means that when the everyday livelihood of those found
within our informal sector are affected, an invocation of
their fundamental right at least deserves a stricter
80
judicial scrutiny. Unfortunately, the Majority Opinion
failed to do so.
III
Even with the lowest level of scrutiny-the reasonability
of the means to achieve a legitimate purpose test-the
Proclamation should have failed judicial review for three
(3) basic reasons. First, the coercive remedial measures
contained in the Proclamation was so broad as to affect
those who are innocent bystanders or those who are
compliant with the law. Second, the Proclamation is
vague and contradicts at least the DILG Guidelines and
existing statutes; namely, our Civil Code and Republic
Act No. 9275. Third, the Proclamation is not justified
and is contradictory to Republic Act No. 10121.
This Court has, on many occasions struck down
executive actions when it tends to unreasonably affect
the rights of innocent third parties, who should not have
been otherwise subjected to coercive measures.
White Light Corporation, 36 dealt with an ordinance that
prohibited wash-up rates within the territory of the local
government unit. It appeared that its intentions were to
deprive the use of hotels and motels from commercial
sex workers and those engaged in illicit affairs.
This Court, however, without going into the legitimacy
of the objective of the measure, still nullified the
ordinance. Other individuals, such as spouses or
travelers or others who simply need a place to nap or
shower, would also likely benefit from the short periods
of accommodation that would charge the wash-up rates.
This Court declared that "individual rights may be
adversely affected only to the extent that may be
required by the legitimate demands of public interest or
public welfare."37
Proclamation No. 475 acknowledges that innocent
parties and those who are compliant with existing laws
will be affected. In its preambular clauses the
government acknowledges:
WHEREAS, the investigations and validation
undertaken revealed that:
….
b. Most commercial establishments and residences are
not connected to the sewerage infrastructure of Boracay
Island, and waste products are not being disposed
through the proper sewerage infrastructures in violation
of environmental law, rules, and regulations;
c. Only 14 out of 51 establishments near the shores of
Boracay Island are compliant with the provisions of
Republic Act (RA) No. 9275 or the Philippine Clean
Water Act of 2004;
….
e. Solid waste within Boracay Island is at a generation
rate of 90 to 115 tons per day, while the hauling capacity
of the local government is only 30 tons per day, hence
leaving approximately 85 tons of waste in the Island
daily;
….
g. Only four (4) out of nine (9) wetlands in Boracay
Island remain due to illegal encroachment of structures,
including 93 7 identified illegal structures constructed on
forestlands and wetlands, as well as 102 illegal structures
on areas already classified as easements, and the
disappearance of the wetlands, which act as natural
catchments, enhances flooding in the area[.] 38
There are commercial establishments and residential
areas connected to the sewage infrastructure. There are
at least 14 establishments who comply with Republic
Act No. 9275 or the Philippine Clean Water Act of 2004.
There are wetlands that are not affected by illegal
structures. There are residents and commercial
establishments whose garbage are collected properly.
More importantly, petitioners are not shown to have
contributed to the formation of fecal coliform in the
targeted beaches of Boracay.
Similar to the situation in White Light Corporation, 39 the
coercive remedial measures are too broad that it affects
those who may not be responsible for the evil sought to
be addressed.
IV
Secondly, the Proclamation does not pass due process
scrutiny because it is vague that it does not adequately
provide notice to all those affected as to what the Chief
Executive, through his various departments, intend to do
and how the rights of those encompassed within its
broad sweep will be affected. Worse, the deployment of
a massive contingent of law enforcers and the
curtailment of freedom of the press may have served to
stifle questions as to the specific contours of the actions
of government to address the ecological situation in the
island.
We review the chronological context of the government's
actions as contained in the pleadings. Apparently, the
closure was effected even before the Proclamation was
promulgated through DILG Guidelines.
Sometime in February last year, President Duterte, in
one of his speeches, described Boracay as a "cesspool"
and ordered the Department of Environment and Natural
Resources to clean up the island.40 On March 6, 2018, he
announced that he would be placing Boracay under a
state of calamity. He warned the courts not to interfere or
issue Temporary Restraining Orders and threatened to
charge the local officials of Boracay with sedition if they
were to resist. 41
On April 4, 2018, during a cabinet meeting, he approved
the total closure of the island for six (6) months,
beginning April 26, 2018. The day after, Spokesperson
Harry L. Roque confirmed the rumors that Boracay was
indeed being closed on the basis of police power. 42
81
On their websites, publications Rappler and ABS-CBN
reported that the Department of Interior and Local
Government issued guidelines for the closure,43 and that
630 police and military personnel have been deployed on
the island. 44
The DILG Guidelines provide:
1. No going beyond Jetty Port. Identified tourists will
not be allowed into the island and will be stopped at the
Jetty Port in Malay, Aklan.
2. No ID, no entry. Residents/workers/resort owners
will be allowed entry into the island subject to the
presentation of identification cards specifying a
residence in Boracay. All government-issued IDs will be
recognized. Non-government IDs are acceptable as long
as they are accompanied by a barangay certification of
residency.
3. Swimming for locals only. Generally, swimming
shall not be allowed anywhere on the island. However,
residents may be allowed to swim only at Angol Beach
in station 3 from 6 am to 5pm.
4. One condition for entry. No visitors of Boracay
residents shall be allowed entry, except under emergency
situations, and with the clearance of the security
committee composed of DILG representative, police,
and local government officials.
5. Journalists need permission to cover. Media will be
allowed entry subject to prior approval from the
Department of Tourism, with a definite duration and
limited movement.
6. No floating structures. No floating structures shall be
allowed up to 15 kilometers from the shoreline.
7. Foreign residents to be checked. The Bureau of
Immigration will revalidate the papers of foreigners who
have found a home in Boracay.
8. One entry, one exit point. There will only be one
transportation point to Boracay Island. Authorities have
yet to decide where. 45 (Emphasis in the original)
On April 24, 2018, petitioners came to this Court. They
are a sandcastle builder, a driver and a non-resident who
visits the island.
Two (2) days later, President Duterte issued
Proclamation No. 475 and the shutdown of the entire
island commenced.
After being able to access the Proclamation, Petitioners
filed a Supplemental Petition on May 10, 2018.
The DILG Guidelines are rudimentary and merely
provide who may enter the island and how they are to do
so. On the other hand, the Proclamation provides for the
implementation of "urgent measures," the designation by
Department of Environment and Natural Resources of
water bodies where specific pollutants have exceeded the
water quality levels, and powers to take "measures" to
improve the water quality.
The DILG Guidelines, as reported, mention "identified
tourists", limit swimming only to "residents" to areas
which are free from malevolent bacteria. It does not
allow swimming for workers of establishments or the
members of law enforcement contingent sent to the
island. It also curtails visitation of residents. The DILG
Guidelines also require media to register without any
guidance as to the basis for allowing or rejecting
coverage, seriously raising issues regarding whether
freedom of expression and/or the press has been
abridged.
While none of the provisions in the DILG Guidelines are
contained specifically in Proclamation No. 475, the latter
does not specifically repeal the former.
The programs and activities that the Proclamation puts
into effect are unclear. There are no provisions to
alleviate those whose rights will be affected and the
remedies that will be available to those aggrieved. More
than any reasonable piece of legislation, it only seems to
grant amorphous powers to the President.
The Proclamation provides:
NOW, THEREFORE, I, RODRIGO ROA
DUTERTE, President of the Philippines, by virtue of
the powers vested in me by the Constitution and existing
laws, do hereby declare a State of Calamity in the
barangays of Balabag, Manoc-Manoc and Yapak (Island
of Boracay) in the Municipality of Malay, Aklan. In this
regard, the temporary closure of the Island as a tourist
destination for six (6) months starting 26 April 2018, or
until 25 October 2018, is hereby ordered, subject to
applicable laws, rules, regulations and jurisprudence.
Concerned government agencies shall, as may be
necessary or appropriate, undertake the remedial
measures during a State of Calamity as provided in RA
No. 10121 and other applicable laws, rules and
regulations, such as control of the prices of basic goods
and commodities for the affected areas, employment of
negotiated procurement and utilization of appropriate
funds, including the National Disaster Risk Reduction
and Management Fund, for relief and rehabilitation
efforts in the area. All departments and other concerned
government agencies are also hereby directed to
coordinate with and provide or augment the basic
services and facilities of affected local government units,
if necessary.
The State of Calamity in the Island of Boracay shall
remain in force and effect until lifted by the President,
notwithstanding the lapse of the six-month closure
period.
All departments, agencies and offices, including
government-owned or controlled corporations and
affected local government units are hereby directed to
implement and execute the abovementioned closure and
the appropriate rehabilitation works, in accordance with
pertinent operational plans and directives, including the
Boracay Action Plan.
82
The Philippine National Police, the Philippine Coast
Guard and other law enforcement agencies, with the
support of the Armed Forces of the Philippines, are
hereby directed to act with restraint and within the
bounds of the law in the strict implementation of the
closure of the Island and ensuring peace and order in the
area.
The Municipality of Malay, Aklan is also hereby
directed to ensure that no tourist will be allowed entry to
the Island of Boracay until such time that the closure has
been lifted by the President.
All tourists, residents and establishment owners in the
area are also urged to act within the bounds of the law
and to comply with the directives herein provided for the
rehabilitation and restoration of the ecological balance of
the Island which will be for the benefit of all
concerned.46 (Emphasis in the original)
The enacting clause declares a temporary closure of the
island for six (6) months yet the third clause provides
that the state of calamity is open ended and without a
time limit. Nothing in the· Proclamation justifies the
period of six (6) months for the closure. The second
paragraph after the enacting clause also suggests that the
temporary closure may be extended because the state of
calamity is indefinite. Thus:
The State of Calamity in the Island of Boracay shall
remain in force and effect until lifted by the President,
notwithstanding the lapse of the six-month closure
period.47
The first paragraph after the enacting clause mentions
general remedial measures to be done by the Executive.
All government agencies are mandated to assist in the
yet to be publicly declared programs and activities
during the closure.
The third paragraph after the enacting clause only refers
to "the appropriate rehabilitation works, in accordance
with pertinent operational plans and directives, including
the Boracay Action Plan." None of these plans however
were attached to the proclamation and none were
presented here by the Office of the Solicitor General on
behalf of the government.
The fourth paragraph after the enacting clause refers to a
policy of restraint for law enforcement agencies. The
fifth paragraph after the enacting clause refers to the ban
for tourists to sojourn into the island without providing
for the reasons why all tourists shall be banned. It also
does not contain the standard for restrictions, if any, for
tourism should the island be partially opened.
The sixth paragraph after the enacting clause is
addressed to the residents and owners to comply with the
directives for the rehabilitation of the island. Those
aggrieved are not provided with a procedure for raising
their claims to their livelihood and properties. There is
no process to address any objections to the hidden
projects or activities that are not mentioned in the
Proclamation.
Proclamation No. 475 is eerily similar to the vagueness
of the Martial Law Proclamation in the recent case
of Lagman v Medialdea. 48 We recall our discussion on
void-for-vagueness:
The doctrine of void for vagueness is a ground for
invalidating a statute or a governmental regulation for
being vague. The doctrine requires that a statute be
sufficiently explicit as to inform those who are subject to
it what conduct on their part will render them liable to its
penalties. In Southern Hemisphere v. Anti-Terrorism
Council:
A statute or act suffers from the defect of vagueness
when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its
meaning and differ as to its application. It is repugnant to
the Constitution in two respects: (1) it violates due
process for failure to accord persons, especially the
parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary
flexing of the Government muscle.
A statute or act suffers from the defect of vagueness
when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its
meaning and differ as to its application. It is repugnant to
the Constitution in two respects: (1) it violates due
process for failure to accord persons, especially the
parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary
flexing of the Government muscle.
In People of the Philippines v. Piedra, the Court
explained that the rationale behind the doctrine is to give
a person of ordinary intelligence a fair notice that his or
her contemplated conduct is forbidden by the statute or
the regulation. Thus, a statute must be declared void and
unconstitutional when it is so indefinite that it
encourages arbitrary and erratic arrests and convictions.
In Estrada v. Sandiganbayan, the Court limited the
application of the doctrine in cases where the statute is
"utterly vague on its face, i.e. that which cannot be
clarified by a saving clause or construction." Thus, when
a statute or act lacks comprehensible standards that men
of common intelligence must necessarily guess its
meaning and differ in its application, the doctrine may
be invoked:
Hence, it cannot plausibly be contended that the law
does not give a fair warning and sufficient notice of what
it seeks to penalize. Under the circumstances, petitioner's
reliance on the "void-for-vagueness" doctrine is
manifestly misplaced. The doctrine has been formulated
in various ways, but is most commonly stated to the
effect that a statute establishing a criminal offense must
define the offense with sufficient definiteness that
persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be
invoked against that specie of legislation that is utterly
vague on its face, i.e., that which cannot be clarified
either by a saving clause or by construction.
83
A statute or act may be said to be vague when it lacks
comprehensible standards that men of common
intelligence must necessarily guess at its meaning and
differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it
violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of what
conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle. But the
doctrine does not apply as against legislations that are
merely couched in imprecise language but which
nonetheless specify a standard though defectively
phrased; or to those that are apparently ambiguous yet
fairly applicable to certain types of activities. The first
may be "saved" by proper construction, while no
challenge may be mounted as against the second
whenever directed against such activities. With more
reason, the doctrine cannot be invoked where the
assailed statute is clear and free from ambiguity, as in
this case.
In Southern Hemisphere Engagement Network, Inc. v.
Anti-Terrorism Council, the Court clarified that the void
for vagueness doctrine may only be invoked in as-
applied cases. The Court explained:
While Estrada did not apply the overbreadth doctrine, it
did not preclude the operation of the vagueness test on
the Anti-Plunder Law as applied to the therein petitioner,
finding, however, that there was no basis to review the
law "on its face and in its entirety." It stressed that
"statutes found vague as a matter of due process
typically are invalidated only 'as applied' to a particular
defendant."
However, in Disini v. Secretary of Justice, the Court
extended the application of the doctrine even to facial
challenges, ruling that "when a penal statute encroaches
upon the freedom of speech, a facial challenge grounded
on the void-for-vagueness doctrine is acceptable." Thus,
by this pronouncement the void for vagueness doctrine
may also now be invoked in facial challenges as long as
what it involved is freedom of speech.
On the other hand, the void for overbreadth doctrine
applies when the statute or the act "offends the
constitutional principle that a governmental purpose to
control or prevent activities constitutionally subject to
state regulations may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area
of protected freedoms."
In Adiong v. Commission on Elections, the Court applied
the doctrine in relation to the Due Process Clause of the
Constitution. Thus, in Adiong, the Commission on
Elections issued a Resolution prohibiting the posting of
decals and stickers not more than eight and one-half (8 ½
) inches in width and fourteen (14) inches in length in
any place, including mobile places whether public or
private except in areas designated by the COMELEC.
The Court characterized the regulation as void for being
"so broad," thus:
Verily, the restriction as to where the decals and stickers
should be posted is so broad that it encompasses even
the citizen's private property, which in this case is a
privately-owned vehicle. In consequence of this
prohibition, another cardinal rule prescribed by the
Constitution would be violated. Section 1, Article III of
the Bill of Rights provides "that no person shall be
deprived of his property without due process of law."
Property is more than the mere thing which a person
owns, it includes the right to acquire, use, and dispose of
it; and the Constitution, in the 14th Amendment, protects
these essential attributes.
Property is more than the mere thing which a person
owns. It is elementary that it includes the right to
acquire, use, and dispose of it. The Constitution protects
these essential attributes of property ... Property consists
of the free use, enjoyment, and disposal of a person's
acquisitions without control or diminution save by the
law of the land.
In Southern Hemisphere Engagement Network, Inc. v.
Anti-Terrorism Council, the Court held that the
application of the overbreadth doctrine is limited only to
free speech cases due to the rationale of a facial
challenge. The Court explained:
By its nature, the overbreadth doctrine has to necessarily
apply a facial type of invalidation in order to plot areas
of protected speech, inevitably almost always under
situations not before the court, that are impermissibly
swept by the substantially overbroad regulation.
Otherwise stated, a statute cannot be properly analyzed
for being substantially overbroad if the court confines
itself only to facts as applied to the litigants.
The Court ruled that as regards the application of the
overbreadth doctrine, it is limited only to "a facial kind
of challenge and, owing to the given rationale of a facial
challenge, applicable only to free speech cases."
The Court's pronouncements in Disini v. Secretary of
Justice is also premised on the same tenor. Thus, it held:
Also, the charge of invalidity of this section based on the
overbreadth doctrine will not hold water since the
specific conducts proscribed do not intrude into
guaranteed freedoms like speech. Clearly, what this
section regulates are specific actions: the acquisition,
use, misuse or deletion of personal identifying data of
another. There is no fundamental right to acquire
another's personal data.
….
But this rule admits of exceptions. A petitioner may for
instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth
or vagueness of the statute. The rationale for this
exception is to counter the "chilling effect" on protected
speech that comes from statutes violating free speech. A
person who does not know whether his speech
constitutes a crime under an overbroad or vague law may
simply restrain himself from speaking in order to avoid
84
being charged of a crime. The overbroad or vague law
thus chills him into silence.
It is true that in his Dissenting Opinion in Estrada v.
Sandiganbayan, Justice V.V. Mendoza expressed the
view that "the overbreadth and vagueness doctrines then
have special application only to free speech cases. They
are inapt for testing the validity of penal statutes."
However, the Court already clarified in Southern
Hemisphere Engagement Network, Inc., v. Anti-
Terrorism Council, that the primary criterion in the
application of the doctrine is not whether the case is a
freedom of speech case, but rather, whether the case
involves an asapplied or a facial challenge. The Court
clarified:
The confusion apparently stems from the interlocking
relation of the overbreadth and vagueness doctrines as
grounds for a facial or as-applied challenge against a
penal statute (under a claim of violation of due process
of law) or a speech regulation (under a claim of
abridgement of the freedom of speech and cognate
rights).
To be sure, the doctrine of vagueness and the doctrine of
overbreadth do not operate on the same plane.
….
The allowance of a facial challenge in free speech cases
is justified by the aim to avert the chilling effect on
protected speech, the exercise of which should not at all
times be abridged. As reflected earlier, this rationale is
inapplicable to plain penal statutes that generally bear an
in terrorem effect in deterring socially harmful conduct.
In fact, the legislature may even forbid and penalize acts
formerly considered innocent and lawful, so long as it
refrains from diminishing or dissuading the exercise of
constitutionally protected rights.
The Court then concluded that due to the rationale of a
facial challenge, the overbreadth doctrine is applicable
only to free speech cases. Thus:
By its nature, the overbreadth doctrine has to necessarily
apply a facial type of invalidation in order to plot areas
of protected speech, inevitably almost always under
situations not before the court, that are impermissibly
swept by the substantially overbroad regulation.
Otherwise stated, a statute cannot be properly analyzed
for being substantially overbroad if the court confines
itself only to facts as applied to the litigants.
….
In restricting the overbreadth doctrine to free speech
claims, the Court, in at least two cases, observed that the
US Supreme Court has not recognized an overbreadth
doctrine outside the limited context of the First
Amendment, and that claims of facial overbreadth have
been entertained in cases involving statutes which, by
their terms, seek to regulate only spoken words.
In Virginia v. Hicks, it was held that rarely, if ever, will
an overbreadth challenge succeed against a law or
regulation that is not specifically addressed to speech
or speech-related conduct. Attacks on overly broad
statutes are justified by the "transcendent value to all
society of constitutionally protected expression." As
regards the application of the void for vagueness
doctrine, the Court held that vagueness challenges must
be examined in light of the specific facts of the case and
not with regard to the statute's facial validity. Notably,
the case need not be a freedom of speech case as the
Court cited previous cases where the doctrine was
applied:
In this jurisdiction, the void-for-vagueness doctrine
asserted under the due process clause has been utilized in
examining the constitutionality of criminal statutes. In at
least three cases, the Court brought the doctrine into play
in analyzing an ordinance penalizing the non-payment of
municipal tax on fishponds, the crime of illegal
recruitment punishable under Article 132 (b) of the
Labor Code, and the vagrancy provision under Article
202 (2) of the Revised Penal Code. Notably, the
petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually
charged with the therein assailed penal statute, unlike in
the present case.
From these pronouncements, it is clear that what is
relevant in the application of the void-for-vagueness
doctrine is not whether it is a freedom of speech case,
but rather whether it violates the Due Process Clause of
the Constitution for failure to accord persons a fair
notice of which conduct to avoid; and whether it leaves
law enforcers unbridled discretion in carrying out their
functions. 49 (Emphasis in the original, citations omitted)
V
The inability of the Proclamation to provide fair notice
and "whether it leaves law enforcers unbridled discretion
in carrying out their function" 50 is readily demonstrated
by the contradiction in the provisions of the
Proclamation with existing laws.
The Civil Code acknowledges the concept of nuisance,
thus:
ARTICLE 694. A nuisance is any act, omission,
establishment, business, condition of property, or
anything else which:
(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any
public highway or street, or any body of water; or
(5) Hinders or impairs the use of property.
ARTICLE 695. Nuisance is either public or private. A
public nuisance affects a community or neighborhood or
any considerable number of persons, although the extent
of the annoyance, danger or damage upon individuals
85
may be unequal. A private nuisance is one that is not
included in the foregoing definition.
The responsibility to abate a nuisance lies with the
owner or possessor of a property:
ARTICLE 696. Every successive owner or possessor of
property who fails or refuses to abate a nuisance in that
property started by a former owner or possessor is liable
therefor in the same manner as the one who created it.
ARTICLE 697. The abatement of a nuisance does not
preclude the right of any person injured to recover
damages for its past existence. 51
Being a public nuisance, the remedy for the discharge of
coliform within private properties or properties
possessed by private persons are:
ARTICLE 699. The remedies against a public nuisance
are:
(1) A prosecution under the Penal Code or any local
ordinance: or
(2) A civil action; or
(3) Abatement, without judicial proceedings. 52
Abatement of a public nuisance is provided, thus:
ARTICLE 698. Lapse of time cannot legalize any
nuisance, whether public or private.
ARTICLE 700. The district health officer shall take care
that one or all of the remedies against a public nuisance
are availed of.
ARTICLE 701. If a civil action is brought by reason of
the maintenance of a public nuisance, such action shall
be commenced by the city or municipal mayor.
ARTICLE 702. The district health officer shall
determine whether or not abatement, without judicial
proceedings, is the best remedy against a public
nuisance.
ARTICLE 703. A private person may file an action on
account of a public nuisance, if it is specially injurious to
himself.
ARTICLE 704. Any private person may abate a public
nuisance which is specially injurious to him by
removing, or if necessary, by destroying the thing which
constitutes the same, without committing a breach of the
peace, or doing unnecessary injury. But it is necessary:
(1) That demand be first made upon the owner or
possessor of the property to abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district health
officer and executed with the assistance of the local
police; and
(4) That the value of the destruction does not exceed
three thousand pesos. 53
Nothing in the Proclamation relates to or is in
accordance with these statutory procedures and
standards of the Civil Code.
Significantly, the Proclamation also contravenes
Republic Act No. 9275 or the Philippine Clean Water
Act of 2004.
Section 6 of the Philippine Clean Water Act of 2004
provides a systematic procedure for the management of
water bodies which are heavily polluted or referred to as
"non-attainment areas." Thus:
SECTION 6. Management of Non-attainment Areas. -
The Department shall designate water bodies, or portions
thereof, where specific pollutants from either natural or
man-made source have already exceeded water quality
guidelines as non-attainment areas for the exceeded
pollutants. It shall prepare and implement a program that
will not allow new sources of exceeded water pollutant
in non-attainment areas without a corresponding
reduction in discharges from existing sources: Provided,
That if the pollutant is naturally occurring, e.g. naturally
high boron and other elements in geothermal areas,
discharge of such pollutant may be allowed: Provided,
further, That the effluent concentration of discharge
shall not exceed the naturally occurring level of such
pollutant in the area: Provided, finally, That the effluent
concentration and volume of discharge shall not
adversely affect water supply, public health and
ecological protection.
The Department shall, in coordination with NWRB,
Department of Health (DOH), Department of
Agriculture (DA), governing board and other concerned
government agencies and private sectors shall take such
measures as may be necessary to upgrade the quality of
such water in nonattainment areas to meet the standards
under which it has been classified.
Upgrading of water quality shall likewise include
undertakings which shall improve the water quality of a
water body to a classification that will meet its projected
or potential use.
The LGUs shall prepare and implement contingency
plans and other measures including relocation, whenever
necessary, for the protection of health and welfare of the
residents within potentially affected areas.
Complementing these procedures to identify heavily
polluted waters, and therefore considered non-attainment
areas, are the enforcement mechanisms in the law.
Should clean-up of the waters become necessary,
Section 16 of Republic Act No. 9275 will apply, thus:
SECTION 16. Clean-Up Operations. - Notwithstanding
the provisions of Sections 15 and 26 hereof, any person
86
who causes pollution in or pollutes water bodies in
excess of the applicable and prevailing standards shall be
responsible to contain, remove and clean-up any
pollution incident at his own expense to the extent that
the same water bodies have been rendered unfit for
utilization and beneficial use: Provided, That in the
event emergency clean-up operations are necessary and
the polluter fails to immediately undertake the same, the
Department, in coordination with other government
agencies concerned, shall conduct containment, removal
and clean-up operations. Expenses incurred in said
operations shall be reimbursed by the persons found to
have caused such pollution upon proper administrative
determination in accordance with this Act.
Reimbursements of the cost incurred shall be made to
the Water Quality Management Fund or to such other
funds where said disbursements were sourced.
This applies to the containment, removal, and clean-up
operations for the body of water that is polluted. To
prevent further discharge from a private source, Section
27 of Republic Act No. 9275 prohibits:
SECTION 27. Prohibited Acts. - The following acts are
hereby prohibited:
a) Discharging, depositing or causing to be deposited
material of any kind directly or indirectly into the water
bodies or along the margins of any surface water, where,
the same shall be liable to be washed into such surface
water, either by tide action or by storm, floods or
otherwise, which could cause water pollution or impede
natural flow in the water body;
….
e) Unauthorized transport or dumping into sea waters of
sewage sludge or solid waste as defined under Republic
Act No. 9003;
….
g) Operate facilities that discharge or allow to seep,
willfully or through gross negligence, prohibited
chemicals, substances or pollutants listed under Republic
Act No. 6969, into water bodies or wherein the same
shall be liable to be washed into such surface, ground,
coastal, and marine water;
h) Undertaking activities or development and expansion
of projects, or operating wastewater/sewerage facilities
in violation of Presidential Decree No. 15 86 and its
implementing rules and regulations;
i) Discharging regulated water pollutants without the
valid required discharge permit pursuant to this Act or
after the permit was revoked or any violation of any
condition therein;
j) Noncompliance of the LGU with the Water Quality
Framework and Management Area Action Plan. In such
a case, sanctions shall be imposed on the local
government officials concerned;
k) Refusal to allow entry, inspection and monitoring by
the Department in accordance with this Act;
l) Refusal to allow access by the Department to relevant
reports and records in accordance with this Act;
m) Refusal or failure to submit reports whenever
required by the Department in accordance with this Act;
….
o) Directly using booster pumps in the distribution
system or tampering with the water supply in such a way
as to alter or impair the water quality
Section 28 of the same law provides further enforcement
mechanisms:
SECTION 28. Fines, Damages and Penalties. - Unless
otherwise provided herein, any person who commits any
of the prohibited acts provided in the immediately
preceding section or violates any of the provision of this
Act or its implementing rules and regulations, shall be
fined by the Secretary, upon the recommendation of the
PAB in the amount of not less than Ten thousand pesos
(P10,000.00) nor more than Two hundred thousand
pesos (P200,000.00) for every day of violation. The fines
herein prescribed shall be increased by ten percent
( 10%) every two (2) years to compensate for inflation
and to maintain the deterrent function of such
fines: Provided, That the Secretary, upon
recommendation of the P AB may order the closure,
suspension of development or construction, or cessation
of operations or, where appropriate disconnection of
water supply, until such time that proper environmental
safeguards are put in place and/or compliance with this
Act or its rules and regulations are undertaken. This
paragraph shall be without prejudice to the issuance of
an ex parte order for such closure, suspension of
development or construction, or cessation of operations
during the pendency of the case.
Failure to undertake clean-up operations, willfully, or
through gross negligence, shall be punished by
imprisonment of not less than two (2) years and not
more than four (4) years and a fine not less than Fifty
thousand pesos (PS0,000.00) and not more than One
hundred thousand pesos (P100,000.00) per day for each
day of violation. Such failure or refusal which results in
serious injury or loss of life and/or irreversible water
contamination of surface, ground, coastal and marine
water shall be punished with imprisonment of not less
than six (6) years and one ( 1) day and not more than
twelve (12) years, and a fine of Five hundred thousand
pesos (P500,000.00) per day for each day during which
the omission and/or contamination continues.
In case of gross violation of this Act, the P AB shall
issue a resolution recommending that the proper
government agencies file criminal charges against the
violators. (Emphasis supplied)
The Department of Environment and Natural Resources
is only authorized by the Clean Water Act to order
closures of operations when recommended by the
87
Pollution Adjudicatory Board, or when the latter files
an ex parte order before a court.
It is the Pollution Adjudicatory Board, not the President
or the Department of Environment and Natural
Resources, that has specific jurisdiction over the Clean
Water Act: 54
RULE III
Jurisdiction and Authority of the Board
SECTION 1. JURISDICTION OF THE BOARD
….
B. Specific Jurisdiction. - Notwithstanding the general
jurisdiction of the Board over adjudication of pollution
cases, and all matters related thereto, the Board has
specific jurisdiction, over the following cases:
….
2. Clean Water Act (RA 9275)
The P AB has the exclusive and original
jurisdiction with respect to adjudication of pollution
cases based on exceedance of the DENR Effluent
Standards and other acts defined as prohibited under
Section 27 of R.A. 9275. (Emphasis supplied)
RULE X
Orders, Resolutions and Decisions
SECTION 1. Cease and Desist Order. - Whenever the
Board finds prima facie evidence that the emission or
discharge of pollutants constitutes an immediate threat to
life, public health, safety or welfare, or to animal or plant
life, or exceeds the allowable DENR Standards, it may
issue or recommend to the DENR Secretary an ex-parte
order directing the discontinuance of the same or the
temporary suspension or cessation of operation of the
establishment or person generating such pollutants,
without need of a prior public hearing.
The Cease and Desist Order (CDO) shall be immediately
executory and shall remain in force and effect until
modified or lifted by the Board or the DENR Secretary.
The Board or the DENR Secretary may also direct the
Regional Office to revoke, suspend or modify any permit
to operate a pollution control facility or any clearance
whenever such is necessary to prevent or abate the
pollution.
SECTION 2. Cease and Desist Order against Whom
Issued. - A CDO shall be issued against the respondent
for the purpose of directing it to immediately stop or
refrain from doing or conducting an act, or continuing a
particular activity or course of action in violation of
environmental laws, such as, but not limited to, the
operation of a particular machine, equipment, process or
activity, or doing a particular act expressly prohibited by
law.
….
SECTION 4. Board Action on Interim Cease and Desist
Order. - Where an interim CDO effective for seven (7)
days has been issued by the Regional Director, the Board
shall issue a Cease and Desist Order or recommend to
the Secretary the issuance of a CDO, pursuant to the
provisions of the applicable law.
SECTION 5. Remedy of Respondent. - The respondent
may contest the order by filing with the Board a motion
to lift the CDO, with proof of service of copies thereof
on the Regional Office and the parties concerned.
The Board shall direct the Regional Office which has
jurisdiction over the case and the parties concerned to
file their comment to the motion within five (5) days
from receipt thereof, copy-furnished the respondent.
Thereafter, the motion shall be set for hearing or
calendared for the Board's deliberation. The filing of
such motion shall not stay the enforcement and
execution of the CDO.
SECTION 6. Implementation of Cease and Desist Order.
- The Regional Director or his duly authorized
representative, in coordination with the Regional
Executive Director (RED) shall implement or cause the
implementation of the Cease and Desist Order no later
than seventy-two (72) hours from receipt thereof. He
shall submit to the Board a report within forty-eight (48)
hours after the completion of the implementation, stating
therein the actions taken. Should the Cease and Desist
Order be implemented beyond seventy-two (72) hours or
cannot be implemented, the Regional Director shall
submit a written report to the Board stating therein the
causes of delay or failure to execute the same.
The implementing team shall be designated by the
Regional Director.
In the implementation of Cease and Desist Orders, the
Regional Director shall observe the following
guidelines:
1. Upon issuance or receipt of the CDO by the Board,
the EMB Regional Director or his duly authorized
representative shall inform the local government unit
(province/municipality/city) concerned regarding the
implementation thereof by furnishing it with copies of
the Orders received from the Board;
2. Upon arrival at the respondent's premises, the
implementing team shall present proper identification as
well as its mission Order duly signed by the EMB
Regional Director;
3. The head of the implementing team shall serve the
CDO on the Managing Head and the Pollution Control
Officer, or in their absence to any person in charge, by
thoroughly explaining to them the contents thereof;
4. The team shall proceed with the execution of the CDO
by padlocking and sealing the source responsible for
generating the effluent or emission, and thereafter
requesting the Managing Head and the Pollution Control
88
Officer to affix their signatures to the duplicate copy of
the CDO as proof of service;
5. Should there be refusal on the part of the respondent
to have the CDO implemented, the head of the
implementing team shall report such incident to the
EMB Regional Director, without prejudice to such
respondent being declared in contempt and other
criminal liability under relevant laws;
6. The Regional Director, whenever it is deemed
necessary, may seek the assistance of the Local
Government Units (LGUs) and/or Philippine National
Police (PNP) through its PNP Regional Director. The
written communication shall state the urgency of having
the CDO implemented within the seventy-two (72) hour
period as prescribed in the existing Rules;
7. The LGUs and/or the PNP together with the same
implementing team may break into respondent's
premises for the purpose of implementing the CDO in
accordance with number four ( 4) above; and
8. Upon serving of the CDO, the Regional Office shall
document the same by taking of photographs and/or
videos and thereafter advising respondent that removing
or breaking the padlocks and seals constitutes is a
criminal offense punishable by existing environmental
laws, rules and regulations without prejudice to such
respondent being declared in contempt and other liability
under relevant laws.
SECTION 7. Show Cause Order. - Instead of issuing a
CDO, the Board may opt to direct respondent to Show
Cause why no CDO should be issued against it, subject
to these criteria:
1. The results of a series of effluent samplings shows a
marked decrease in the values of the relevant
parameters; or
2. The values of the relevant parameters are not far from
the DENR Standards.
These statutory framework and mechanisms are absent
in the Proclamation.
Recalling the enabling clause of the Proclamation:
NOW, THEREFORE, I, RODRIGO ROA DUTERTE,
President of the Philippines, by virtue of the powers
vested in me by the Constitution and existing laws, do
hereby declare a State of Calamity in the barangays of
Balabag, Manoc-Manoc and Yapak (Island of Boracay)
in the Municipality of Malay, Aklan. In this regard, the
temporary closure of the Island as a tourist destination
for six (6) months starting 26 April 2018, or until 25
October 2018, is hereby ordered, subject to applicable
laws, rules, regulations and jurisprudence.
Concerned government agencies shall, as may be
necessary or appropriate, undertake the remedial
measures during a State of Calamity as provided in RA
No. 10121 and other applicable laws, rules and
regulations, such as control of the prices of basic goods
and commodities for the affected areas, employment of
negotiated procurement and utilization of appropriate
funds, including the National Disaster Risk Reduction
and Management Fund, for relief and rehabilitation
efforts in the area. All departments and other concerned
government agencies are also hereby directed to
coordinate with and provide or augment the basic
services and facilities of affected local government units,
if necessary.
….
All departments, agencies and offices, including
government-owned or controlled corporations and
affected local government units are hereby directed to
implement and execute the abovementioned closure and
the appropriate rehabilitation works, in accordance with
pertinent operational plans and directives, including the
Boracay Action Plan.
….
The Municipality of Malay, Aklan is also hereby
directed to ensure that no tourist will be allowed entry to
the Island of Boracay until such time that the closure has
been lifted by the President.
All tourists, residents and establishment owners in the
area are also urged to act within the bounds of the law
and to comply with the directives herein provided for the
rehabilitation and restoration of the ecological balance of
the Island which will be for the benefit of all concerned.
The Proclamation makes two (2) basic and broad sets of
directives to all agencies.
The first set relates to prices of basic goods, employment
of procurement, and disbursement of funds, and for
relief and rehabilitation. This is contained in the first
paragraph after the enabling clause, thus:
All departments and other concerned government
agencies are also hereby directed to coordinate with and
provide or augment the basic services and facilities of
affected local government units, if any.
The second set of directives relate to "appropriate
rehabilitation works" where the primacy of "pertinent
action plans and directives," including a "Boracay
Action Plan," not appended to the Proclamation, is
mentioned. Thus:
All departments, agencies and offices, including
government-owned or controlled corporations and
affected local government units are hereby directed to
implement and execute the abovementioned closure and
the appropriate rehabilitation works, in accordance with
pertinent operational plans and directives, including the
Boracay Action Plan.
The Proclamation completely negates the framework of
enforcement and implementation of Republic Act No.
9275.
89
The form of the Presidential action contributes to its
vagueness.
Executive Order No. 292 or the Administrative Code
makes a clear distinction between an Executive Order
and a Proclamation, thus:
SECTION 2. Executive Orders. - Acts of the President
providing for rules of a general or permanent character
in implementation or execution of constitutional or
statutory powers shall be promulgated in executive
orders.
….
SECTION 4. Proclamations. -Acts of the President
fixing a date or declaring a status or condition of public
moment or interest, upon the existence of which the
operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which
shall have the force of an executive order.
The Presidential action is in the form of a Proclamation,
which appears to state a "status or condition," namely a
"state of calamity," intending to signal the operation of
Republic Act No. 10121 or Republic Act No.
9275. 55 However, as demonstrated, the provisions of the
Proclamation amends the framework and
implementation of the Civil Code and the Clean Water
Act.
VI
Thirdly, the Proclamation transgresses due process of
law in that it is not based on Republic Act No. 10121.
The majority finds that Proclamation No. 475 is in the
nature of a valid police power measure. It defined police
power as the "state authority to enact legislation that may
interfere with personal liberty or property in order to
promote general welfare." 56 Police power does not need
to be supported by the Constitution since "it is inborn in
the very fact of statehood and sovereignty." 57
A valid exercise of police power by the President
requires that it be exercised within the framework of
both the Constitution and statutes.
In David v. Arroyo, 58 this Court invalidated Presidential
Decree No. 1017 insofar as the president is granted
authority to promulgate "decrees." Legislative power is
vested solely in the legislature. Our Constitution
provides:
Article VI
The Legislative Department
SECTION 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the
extent reserved to the people by the provision on
initiative and referendum.
To determine whether there is a valid delegation of
legislative power, it must pass the completeness test and
the sufficient standard test. The first test requires that the
law must be complete in all its terms and conditions
when it leaves the legislature, so much so that when it
reaches the delegate, the only thing left is to enforce the
law. The second test requires adequate guidelines in law
to provide the boundaries of the delegate's authority. 59
These tests ensure that the delegate does not step into the
shoes of the legislature and exercise legislative
power.60 In Belgica v. Ochoa,61 this Court reminded the
parties that "the powers of the government must be
divided to avoid concentration of these powers in any
one branch, the division, it is hoped, would avoid any
single branch from lording its power over the other
branches of the citizenry. "62
The majority, accepting the premise of respondents, cites
Republic Act No. 1012163 as statutory basis for the
validity of Proclamation No. 475. Such reliance is
erroneous.
Republic Act No. 10121 defines state of calamity as:
SECTION 3. Definition of Terms. - For purposes of this
Act, the following shall refer to:
….
(ll) "State of Calamity"-a condition involving mass
casualty and/or major damages to property, disruption
of means ol livelihoods, roads and normal way of life of
people in the affected areas as a result of the occurrence
of natural or human-induced hazard. (Emphasis
supplied)
Not all man-made intrusions and pollution into our
environment justify as severe an intervention as the
"state of calamity envisioned in Republic Act 10121.
The environmental disaster must (a) be of such gravity,
(b) its cause so known that (c) the response required
under that law is necessary.
The imminence of mass casualty or major damage to
property or disruption of the means of livelihoods and
the normal life of the people must be demonstrated. Any
action of human beings may cause the unintended
consequences of affecting whole communities. The
profligate use of plastics is affecting our oceans and
endangering our fish stock. The pervasiveness of
livestock and the demand for meat may be causing the
release of inordinate amounts of carbon and methane
causing climate change. The release of anthropogenic
gases and other human activities causing climate change
have resulted in scientists warning that the "sixth mass
extinction event" for our planet may be underway. 64
Yet, not all of this evolving disasters-as the disaster
involving fecal coliform in the beaches of Boracay-
would be the state of calamity envisioned by Republic
Act No. 10121. Rather, the problem of coliform
formation may be due to many other factors that should
be addressed by our building codes, sanitation codes,
and other environmental laws. Each of these laws
90
provide the means of redress as well as the process of
weeding out the source of the disasters. Furthermore, in
situations where the violations are rampant, the
government may also want to invoke our anticorruption
laws to weed out the causes at its roots.
The nature of the calamity envisioned by Republic Act
No. 10121 can be further discerned not only from the
nature of the acts prohibited. Section 19 of the law
provides:
SECTION 19. Prohibited Acts. - Any person, group or
corporation who commits any of the following
prohibited acts shall be held liable and be subjected to
the penalties as prescribed in Section 20 of this Act:
(a) Dereliction of duties which leads to destruction, loss
of lives, critical damage of facilities and misuse of
funds;
(b) Preventing the entry and distribution of relief goods
in disaster-stricken areas, including appropriate
technology, tools, equipment, accessories, disaster
teams/experts;
(c) Buying, for consumption or resale, from disaster
relief agencies any relief goods, equipment or other aid
commodities which are intended for distribution to
disaster affected communities;
(d) Buying, for consumption or resale, from the recipient
disaster affected persons any relief goods, equipment or
other aid commodities received by them;
(e) Selling of relief goods, equipment or other aid
commodities which are intended for distribution to
disaster victims;
(f) Forcibly seizing relief goods, equipment or other aid
commodities intended for or consigned to a specific
group of victims or relief agency;
(g) Diverting or misdelivery of relief goods, equipment
or other aid commodities to persons other than the
rightful recipient or consignee;
(h) Accepting, possessing, using or disposing relief
goods, equipment or other aid commodities not intended
for nor consigned to him/her;
(i) Misrepresenting the source of relief goods, equipment
or other aid commodities by:
(1) Either covering, replacing or defacing the labels of
the containers to make it appear that the goods,
equipment or other aid commodities came from another
agency or persons;
(2) Repacking the goods, equipment or other aid
commodities into containers with different markings to
make it appear that the goods, came from another agency
or persons or was released upon the instance of a
particular agency or persons;
(3) Making false verbal claim that the goods, equipment
or other aid commodity in its untampered original
containers actually came from another agency or persons
or was released upon the instance of a particular agency
or persons;
(j) Substituting or replacing relief goods, equipment or
other aid commodities with the same items or
inferior/cheaper quality;
(k) Illegal solicitations by persons or organizations
representing others as defined in the standards and
guidelines set by the NDRRMC;
(l) Deliberate use of false or inflated data in support of
the request for funding, relief goods, equipment or other
aid commodities for emergency assistance or livelihood
projects; and
(m) Tampering with or stealing hazard monitoring and
disaster preparedness equipment and paraphernalia.
The nature of the contingency for the state of calamity
envisioned in Republic Act No. 10121 is such that
casualties have actually been suffered and property
actually damaged. This may take the form of typhoons,
tsunamis, or earthquakes where government's relief is
needed. It does not include human induced ecological
disasters like the formation of fecal coliform on our
beaches, which requires a more systematic, deliberate,
structural, and institutional approach.
VII
The express and implied powers contained in the
Proclamation exceeds that which is granted by Republic
Act No. 10121.
Section I 7 of that law contains a listing of the
competences that may be exercised during states of
calamities:
SECTION 17. Remedial Measures. - The declaration of
a state of calamity shall make mandatory the immediate
undertaking of the following remedial measures by the
member-agencies concerned as defined in this Act:
(a) Imposition of price ceiling on basic necessities and
prime commodities by the President upon the
recommendation of the implementing agency as
provided for under Republic Act No. 7581, otherwise
known as the "Price Act", or the National Price
Coordinating Council;
(b) Monitoring, prevention and control by the Local
Price Coordination Council of overpricing/profiteering
and hoarding of prime commodities, medicines and
petroleum products;
c) Programming/reprogramming of funds for the repair
and safety upgrading of public infrastructures and
facilities; and
(d) Granting of no-interest loans by government
financing or lending institutions to the most affected
91
section of the population through their cooperatives or
people's organizations.
The law expands the power of the executive branch
during emergencies. In passing Republic Act No. 10121,
the legislature did not contemplate allowing the
President to exercise any and all powers amounting to a
suspension of existing legislation. Precisely, Republic
Act No. 10121 is the legislation that limits that
expansion of executive powers during that emergency.
The acknowledgement of the possible abuse of the
executive's power to declare a state of calamity and to
exercise powers not contemplated in the law is seen with
two (2) salient features of the law. First, the declaration
of a state of calamity may not be done without a
recommendation. Section 16 provides:
SECTION 16. Declaration of State of Calamity. - The
National Council shall recommend to the President of
the Philippines the declaration of a cluster of barangays,
municipalities, cities, provinces, and regions under a
state of calamity, and the lifting thereof, based on the
criteria set by the National Council. The President's
declaration may warrant international humanitarian
assistance as deemed necessary.
The declaration and lifting of the state of calamity may
also be issued by the local sanggunian, upon the
recommendation of the LDRRMC, based on the results
of the damage assessment and needs analysis.
Second, the limited powers granted in Section 17 of
Republic Act No.10121 is also implied in other
provisions, which guard against the possibility for abuse.
The law contains both active Congressional Oversight as
well as a sunset provision:
SECTION 26. Congressional Oversight Committee. -
There is hereby created a Congressional Oversight
Committee to monitor and oversee the implementation
of the provisions of this Act. The Committee shall be
composed of six (6) members from the Senate and six
( 6) members from the House of Representatives with
the Chairpersons of the Committees on National Defense
and Security of both the Senate and the House of
Representatives as joint Chairpersons of this Committee.
The five (5) other members from each Chamber are to be
designated by the Senate President and the Speaker of
the House of Representatives, respectively. The minority
shall be entitled to pro rata representation but shall have
at least two (2) representatives from each Chamber.
SECTION 27. Sunset Review. - Within five (5) years
after the effectivity of this Act, or as the need arises, the
Congressional Oversight Committee shall conduct a
sunset review. For purposes of this Act, the term "sunset
review" shall mean a systematic evaluation by the
Congressional Oversight Committee of the
accomplishments and impact of this Act, as well as the
performance and organizational structure of its
implementing agencies, for purposes of determining
remedial legislation.
The provisions in statutes should not be read in isolation
from the purpose of the legislation and in light of its
other provisions. The grant of power given to the
president when a state of calamity is declared should
thus be read in a limited fashion. Expressio unius est
exclusio alterius.
Definitely, a total closure of an entire island is not
contemplated in the law invoked by Proclamation No.
475.
VIII
More disturbingly, the Proclamation's violations of
specific provisions contained in Republic Act No. 10121
patently shows that the latter cannot be the statutory
basis for the exercise of executive power.
The period of the state of calamity provided in
Proclamation No. 475 contravenes Republic Act No.
10121. In the Proclamation, it is made dependent
exclusively on the President.
Proclamation No. 475 provides:
The State of Calamity in the Island of Boracay shall
remain in
force and effect until lifted by the President,
notwithstanding the lapse of the six-month closure
period. (Emphasis supplied)
However, in Republic Act No. 10121, the period is
conditioned on several factors. Thus:
SECTION 16. Declaration of State of Calamity. - The
National Council shall recommend to the President of
the Philippines the declaration of a cluster of barangays,
municipalities, cities, provinces, and regions under a
state of calamity, and the lifting thereof, based on the
criteria set by the National Council. The President's
declaration may warrant international humanitarian
assistance as deemed necessary.
The declaration and lifting of the state of calamity may
also be issued by the local sanggunian, upon the
recommendation of the LDRRMC, based on the results
of the damage assessment and needs analysis. (Emphasis
supplied)
Executive issuances cannot amend statutes under which
they are issued. It is clear in Proclamation No. 475 that it
only grants the President the power to lift the state of
calamity. The power of the President to lift the state of
calamity is not qualified in the Proclamation, and neither
is there a standard. Likewise, it does not mention any
other authority that can lift the state of calamity.
Incidentally, there is also no standard for the six (6)-
month closure of the island.
92
However, Republic Act No. 10121, under which the
Proclamation claims authority, allows the Municipal
Sanggunian, upon the recommendation of its Local
Disaster Risk Reduction and Management Council, to
lift the state of calamity based on a "damage assessment
and needs analysis."65
The Proclamation and the law are clearly contradictory.
IX
Moreover, the Proclamation transgresses both the
Constitution's grant and the statutory elaboration of local
autonomy.
The majority admits the intrusion of the President into
the autonomy of the local government units, but finds it
too trivial to warrant any consideration from this
Court. 66
I cannot agree.
Article X, Section 2 of the Constitution grants local
autonomy to all territorial and political subdivisions.
Section 4 of the same article provides that the president's
power over local government units is merely of general
supervision and excludes control:
ARTICLE X
Local Government General Provisions
SECTION 2. The territorial and political subdivisions
shall enjoy local autonomy.
….
SECTION 4. The President of the Philippines shall
exercise general supervision over local governments.
Provinces with respect to component cities and
municipalities, and cities and municipalities with respect
to component barangays shall ensure that the acts of
their component units are within the scope of their
prescribed powers and functions.
In issuing Proclamation No. 475, the President exercised
control over the local government units. The
Proclamation orders affected local government units to
implement and execute the closure. This is definitely a
measure of control, not mere supervision
The distinction between supervision and control of local
government units is settled in jurisprudence.
In Pimentel v. Aguirre,67 this Court clarified the
connection between supervision and control. The
Constitution provides a president only with the power of
supervision and not control over local government units.
This power enables him or her to see to it that local
government officials perform tasks within the bounds of
law. He or she may not impair or infringe upon the
power given to local government units by law.
This Court differentiated the powers of control and
supervision in Drilon v. Lim. 68 The power of control is
the power to lay rules in the performance of an act. This
power includes the ability to order the act done and
redone, while supervisory power only necessitates that
rules are followed. Under the power of supervision, there
is no discretion to alter the rules. In short, supervisory
power entails that rules are observed and nothing more.
In Taule v. Santos,69 we ruled that the Chief Executive's
power over local governments was merely that of
checking whether the officials were performing their
duties within the bounds of law.
In Province of Batangas v. Romulo, 70 then President
Joseph Ejercito Estrada (President Estrada) issued
Executive Order No. 48 entitled, "Establishing a
Program for Devolution Adjustment and Equalization."
The program was established to facilitate the process of
enhancing the capacities of local government units in the
discharge of the functions and services devolved to them
by the national government agencies concerned under
the Local Government Code.
The Oversight Committee under Executive Secretary
Ronaldo Zamora passed resolutions, which were
approved by President Estrada on October 6, 1999. The
guidelines formulated by the Oversight Committee
required local government units to identify the projects
eligible for funding under the Local Government Service
Equalization Fund, and submit them to the Department
of Interior and Local Government for appraisal. Then,
the Oversight Committee serves notice to the
Department of Budget and Management for the
subsequent release of the funds.
This Court struck down the resolutions as infringing on
the fiscal autonomy of local government units as
provided in the Constitution:
Article II
Declaration of Principles and State Policies
….
SECTION 25. The State shall ensure the autonomy of
local governments.
An entire article of the Constitution has been devoted to
guaranteeing and promoting the autonomy of local
government units. Article X, Section 2 of the
Constitution reiterates the State policy in this wise:
SECTION 2. The territorial and political subdivisions
shall enjoy local autonomy.
Consistent with the principle of local autonomy, the
Constitution confines the President's power over local
government units to that of general supervision. This
provision has been interpreted to exclude the power of
control. The distinction between the two (2) powers was
enunciated in Drilon v. Lim:
An officer in control lays down the rules in the doing of
an act. If they are not followed, he may, in his discretion,
order the act undone or redone by his subordinate or he
93
may even decide to do it himself. Supervision does not
cover such authority. The supervisor or superintendent
merely sees to it that the rules are followed, but he
himself does not lay down such rules, nor does he have
the discretion to modify or replace them. If the rules are
not observed, he may order the work done or re-done but
only to conform to the prescribed rules. He may not
prescribe his own manner for doing the act. He has no
judgment on this matter except to see to it that the rules
are followed. 71
The Local Government Code of 1991 was enacted to
flesh out the mandate of the Constitution. The State
policy on local autonomy is amplified in Section 2, thus:
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.
In National Liga ng mga Barangay v. Paredes,72 the
Department of Interior and Local Government was
appointed as interim caretaker to administer and manage
the affairs of the Liga ng mga Barangay in giving
remedy to alleged violations made by its incumbent
officer in the conduct of their elections. It issued
memorandum circulars that alter, modify, nullify, or set
aside the actions of the Liga ng mga Barangay.
This Court ruled:
These acts of the DILG went beyond the sphere of
general supervision and constituted direct interference
with the political affairs, not only of the Liga, but more
importantly, of the barangay as an institution. The
election of Liga officers is part of the Liga's internal
organization, for which the latter has already provided
guidelines. In succession, the DILG assumed
stewardship and jurisdiction over the Liga affairs,
issued supplemental guidelines for the election, and
nullified the effects of the Liga-conducted elections.
Clearly, what the DILG wielded was the power of
control which even the President does not have.
Furthermore, the DILG assumed control when it
appointed respondent Rayos as president of the Liga-
Caloocan Chapter prior to the newly scheduled general
Liga elections, although petitioner David's term had not
yet expired. The DILG substituted its choice, who was
Rayos, over the choice of majority of the punong
barangay of Caloocan, who was the incumbent
President, petitioner David. The latter was elected and
had in fact been sitting as an ex-officio member of
the sangguniang panlungsod in accordance with the
Liga Constitution and By-Laws. Yet, the DILG extended
the appointment to respondent Rayos although it was
aware that the position was the subject of a
quo warranto proceeding instituted by Rayos himself,
thereby preempting the outcome of that case. It was bad
enough that the DILG assumed the power of control, it
was worse when it made use of the power with evident
bias and partiality.
As the entity exercising supervision over the Liga ng
mga Barangay, the DILG's authority over the Liga is
limited to seeing to it that the rules are followed, but it
cannot lay down such rules itself, nor does it have the
discretion to modify or replace them. In this particular
case, the most that the DILG could do was review the
acts of the incumbent officers of the Liga in the conduct
of the elections to determine if they committed any
violation of the Liga's Constitution and By-laws and its
implementing rules. If the National Liga Board and its
officers had violated Liga rules, the DILG should have
ordered the Liga to conduct another election in
accordance with the Liga's own rules, but not in
obeisance to DILGdictated guidelines. Neither had the
DILG the authority to remove the incumbent officers of
the Liga and replace them, even temporarily, with
unelected Liga officers.
Like the local government units, the Liga ng mga
Barangay is not subject to control by the Chief Executive
or his alter ego.73
Supervisory power has been defined as "the power of
mere oversight over an inferior body; it does not include
any restraining authority over such body."74
The relationship between the President and local
governments is a constitutional matter. Constitutional
relationships are never trivial nor should it be trivialized.
X
Significantly, the Proclamation is even contrary to the
law that it alleges to implement. It totally
misunderstands the statutory approach for disaster risk
and reduction management. Section 2 of Republic Act
No. 10121 provides:
SECTION 2. Declaration of Policy. - It shall be the
policy of the State to:
(a) Uphold the people's constitutional rights to life and
property by addressing the root causes of vulnerabilities
to disasters, strengthening the country's institutional
capacity for disaster risk reduction and management and
building the resilience of local communities to disasters
including climate change impacts;
(b) Adhere to and adopt the universal norms, principles,
and standards of humanitarian assistance and the global
effort on risk reduction as concrete expression of the
country's commitment to overcome human sufferings
due to recurring disasters;
(c) Incorporate internationally accepted principles of
disaster risk management in the creation and
implementation of national, regional and local
sustainable development and poverty reduction
strategies, policies, plans and budgets;
94
(d) Adopt a disaster risk reduction and management
approach that is holistic, comprehensive, integrated, and
proactive in lessening the socioeconomic and
environmental impacts of disasters including climate
change, and promote the involvement and participation
of all sectors and all stakeholders concerned, at all
levels, especially the local community;
(e) Develop, promote, and implement a comprehensive
National Disaster Risk Reduction and Management Plan
(NDRRMP) that aims to strengthen the capacity of the
national government and the local government units
(LGUs), together with partner stakeholders, to build the
disaster resilience of communities, and to institutionalize
arrangements and measures for reducing disaster risks,
including projected climate risks, and enhancing disaster
preparedness and response capabilities at all levels;
(f) Adopt and implement a coherent, comprehensive,
integrated, efficient and responsive disaster risk
reduction program incorporated in the development plan
at various levels of government adhering to the
principles of good governance such as transparency and
accountability within the context of poverty alleviation
and environmental protection;
(g) Mainstream disaster risk reduction and climate
change in development processes such as policy
formulation, socioeconomic development planning,
budgeting, and governance, particularly in the areas of
environment, agriculture, water, energy, health,
education, poverty reduction, land-use and urban
planning, and public infrastructure and housing, among
others;
(h) Institutionalize the policies, structures, coordination
mechanisms and programs with continuing budget
appropriation on disaster risk reduction from national
down to local levels towards building a disaster-resilient
nation and communities;
(i) Mainstream disaster risk reduction into the peace
process and conflict resolution approaches in order to
minimize loss of lives and damage to property, and
ensure that communities in conflict zones can
immediately go back to their normal lives during periods
of intermittent conflicts;
G) Ensure that disaster risk reduction and climate change
measures are gender responsive, sensitive to indigenous
knowledge systems, and respectful of human rights;
(k) Recognize the local risk patterns across the country
and strengthen the capacity of LG Us for disaster risk
reduction and management through decentralized
powers, responsibilities, and resources at the regional
and local levels;
(1) Recognize and strengthen the capacities of LGUs and
communities in mitigating and preparing for, responding
to, and recovering from the impact of disaster's;
(m) Engage the participation of civil society
organizations (CSOs), the private sector and volunteers
in the government's disaster risk reduction programs
towards complementation of resources and effective
delivery of services to the citizenry;
(n) Develop and strengthen the capacities of vulnerable
and marginalized groups to mitigate, prepare for,
respond to, and recover from the effects of disasters;
(o) Enhance and implement a program where
humanitarian aid workers, communities, health
professionals, government aid agencies, donors, and the
media are educated and trained on how they can actively
support breastfeeding before and during a disaster and/or
an emergency; and
(p) Provide maximum care, assistance and services to
individuals and families affected by disaster, implement
emergency rehabilitation projects to lessen the impact of
disaster, and facilitate resumption of normal social and
economic activities.
The President cannot take over what has been statutorily
granted to local governments units. To allow him to do
so would be to violate his oath of office under Article
VII, Section 5 of the Constitution.75
Republic Act No. 10121 itself creates a whole structure
to address preparation and management of the kinds of
disasters envisioned in that law. Thus:
SECTION 6. Powers and Functions of the NDRRMC. -
The National Council, being empowered with policy-
making, coordination, integration, supervision,
monitoring and evaluation functions, shall have the
following responsibilities:
(a) Develop a NDRRMF which shall provide for a
comprehensive, all-hazards, multi-sectoral, inter-agency
and community-based approach to disaster risk reduction
and management. The Framework shall serve as the
principal guide to disaster risk reduction and
management efforts in the country and shall be reviewed
on a five (5)-year interval, or as may be deemed
necessary, in order to ensure its relevance to the times;
(b) Ensure that the NDRRMP is consistent with the
NDRRMF;
(c) Advise the President on the status of disaster
preparedness, prevention, mitigation, response and
rehabilitation operations being undertaken by the
government, CSOs, private sector, and volunteers;
recommend to the President the declaration of a state of
calamity in areas extensively damaged; and submit
proposals to restore normalcy in the affected areas, to
include calamity fund allocation;
(d) Ensure a multi-stakeholder participation in the
development, updating, and sharing of a Disaster Risk
Reduction and Management Information System and
Geographic Information System-based national risk map
as policy, planning and decision-making tools;
(e) Establish a national early warning and emergency
alert system to provide accurate and timely advice to
national or local emergency response organizations and
95
to the general public through diverse mass media to
include digital and analog broadcast, cable, satellite
television and radio, wireless communications, and
landline communications;
(f) Develop appropriate risk transfer mechanisms that
shall guarantee social and economic protection and
increase resiliency in the face of disaster;
(g) Monitor the development and enforcement by
agencies and organizations of the various laws,
guidelines, codes or technical standards required by this
Act;
(h) Manage and mobilize resources for disaster risk
reduction and management including the National
Disaster Risk Reduction and Management Fund;
(i) Monitor and provide the necessary guidelines and
procedures on the Local Disaster Risk Reduction and
Management Fund (LDRRMF) releases as well as
utilization, accounting and auditing thereof;
(j) Develop assessment tools on the existing and
potential hazards and risks brought about by climate
change to vulnerable areas and ecosystems in
coordination with the Climate Change Commission;
(k) Develop vertical and horizontal coordination
mechanisms for a more coherent implementation of
disaster risk reduction and management policies and
programs by sectoral agencies and LG Us;
(l) Formulate a national institutional capability building
program for disaster risk reduction and management to
address the specific weaknesses of various government
agencies and LGUs, based on the results of a biennial
baseline assessment and studies;
(m) Formulate, harmonize, and translate into policies a
national agenda for research and technology
development on disaster risk reduction and management;
(n) In coordination with the Climate Change
Commission, formulate and implement a framework for
climate change adaptation and disaster risk reduction and
management from which all policies, programs, and
projects shall be based;
(o) Constitute a technical management group composed
of representatives of the abovementioned departments,
offices, and organizations, that shall coordinate and meet
as often as necessary to effectively manage and sustain
national efforts on disaster risk reduction and
management;
(p) Task the OCD to conduct periodic assessment and
performance monitoring of the member-agencies of the
NDRRMC, and the Regional Disaster Risk Reduction
and Management Councils (RDRRMCs), as defined in
the NDRRMP; and
(q) Coordinate or oversee the implementation of the
country's obligations with disaster management treaties
to which it is a party and see to it that the country's
disaster management treaty obligations be incorporated
in its disaster risk reduction and management
frameworks, policies, plans, programs and projects.
SECTION 7. Authority of the NDRRMC Chairperson. -
The Chairperson of the NDRRMC may call upon other
instrumentalities or entities of the government and
nongovernment and civic organizations for assistance in
terms of the use of their facilities and resources for the
protection and preservation of life and properties in the
whole range of disaster risk reduction and management.
This authority includes the power to call on the reserve
force as defined in Republic Act No. 7077 to assist in
relief and rescue during disasters or calamities.
SECTION 8. The Office of Civil Defense. - The Office
of Civil Defense (OCD) shall have the primary mission
of administering a comprehensive national civil defense
and disaster risk reduction and management program by
providing leadership in the continuous development of
strategic and systematic approaches as well as measures
to reduce the vulnerabilities and risks to hazards and
manage the consequences of disasters.
The Administrator of the OCD shall also serve as
Executive Director of the National Council and, as such,
shall have the same duties and privileges of a department
undersecretary. All appointees shall be universally
acknowledged experts in the field of disaster
preparedness and management and of proven honesty
and integrity. The National Council shall utilize the
services and facilities of the OCD as the secretariat of
the National Council.
SECTION 9. Powers and Functions of the OCD. - The
OCD shall have the following powers and functions:
(a) Advise the National Council on matters relating to
disaster risk reduction and management consistent with
the policies and scope as defined in this Act;
(b) Formulate and implement the NDRRMP and ensure
that the physical framework, social, economic and
environmental plans of communities, cities,
municipalities and provinces are consistent with such
plan. The National Council shall approve the NDRRMP;
(c) Identify, assess and prioritize hazards and risks in
consultation with key stakeholders;
(d) Develop and ensure the implementation of national
standards in carrying out disaster risk reduction
programs including preparedness, mitigation, prevention,
response and rehabilitation works, from data collection
and analysis, planning, implementation, monitoring and
evaluation;
(e) Review and evaluate the Local Disaster Risk
Reduction and Management Plans (LDRRMPs) to
facilitate the integration of disaster risk reduction
measures into the local Comprehensive Development
Plan (CDP) and Comprehensive Land-Use Plan (CLUP);
(f) Ensure that the LGUs, through the Local Disaster
Risk Reduction and Management Offices (LDRRMOs)
96
are properly informed and adhere to the national
standards and programs;
(g) Formulate standard operating procedures for the
deployment of rapid assessment teams, information
sharing among different government agencies, and
coordination before and after disasters at all levels;
(h) Establish standard operating procedures on the
communication system among provincial, city,
municipal, and barangay disaster risk reduction and
management councils, for purposes of warning and
alerting them and for gathering information on disaster
areas before, during and after disasters;
(i) Establish Disaster Risk Reduction and Management
Training Institutes in such suitable location as may be
deemed appropriate to train public and private
individuals, both local and national, in such subject as
disaster risk reduction and management among others.
The Institute shall consolidate and prepare training
materials and publications of disaster risk reduction and
management books and manuals to assist disaster risk
reduction and management workers in the planning and
implementation of this program and projects.
The Institute shall conduct research programs to upgrade
knowledge and skills and document best practices on
disaster risk reduction and management.
The Institute is also mandated to conduct periodic
awareness and education programs to accommodate new
elective officials and members of the LDRRMCs;
j) Ensure that all disaster risk reduction programs,
projects and activities requiring regional and
international support shall be in accordance with duly
established national policies and aligned with
international agreements;
(k) Ensure that government agencies and LGUs give top
priority and take adequate and appropriate measures in
disaster risk reduction and management;
(1) Create an enabling environment for substantial and
sustainable participation of CSOs, private groups,
volunteers and communities, and recognize their
contributions in the government's disaster risk reduction
efforts;
(m) Conduct early recovery and post-disaster needs
assessment institutionalizing gender analysis as part of
it;
(n) Establish an operating facility to be known as the
National Disaster Risk Reduction and Management
Operations Center (NDRRMOC) that shall be operated
and staffed on a twenty-four (24) hour basis;
(o) Prepare the criteria and procedure for the enlistment
of accredited community disaster volunteers (ACDVs).
It shall include a manual of operations for the volunteers
which shall be developed by the OCD in consultation
with various stakeholders;
(p) Provide advice and technical assistance and assist in
mobilizing necessary resources to increase the overall
capacity of LGUs, specifically the low income and in
high-risk areas;
(q) Create the necessary offices to perform its mandate
as provided under this Act; and
(r) Perform such other functions as may be necessary for
effective operations and implementation of this Act.
SECTION 10. Disaster Risk Reduction and Management
Organization at the Regional Level. - The current
Regional Disaster Coordinating Councils shall
henceforth be known as the Regional Disaster Risk
Reduction and Management Councils (RDRRMCs)
which shall coordinate, integrate, supervise, and evaluate
the activities of the LDRRMCs. The RDRRMC shall be
responsible in ensuring disaster sensitive regional
development plans, and in case of emergencies shall
convene the different regional line agencies and
concerned institutions and authorities.
The RDRRMCs shall establish an operating facility to be
known as the Regional Disaster Risk Reduction and
Management Operations Center (RDRRMOC) whenever
necessary.
The civil defense officers of the OCD who are or may be
designated as Regional Directors of the OCD shall serve
as chairpersons of the RDRRMCs. Its Vice Chairpersons
shall be the Regional Directors of the DSWD, the DILG,
the DOST, and the NEDA. In the case of the
Autonomous Region in Muslim Mindanao (ARMM), the
Regional Governor shall be the RDRRMC Chairperson.
The existing regional offices of the OCD shall serve as
secretariat of the RDRRMCs. The RDRRMCs shall be
composed of the executives of regional offices and field
stations at the regional level of the government agencies.
SECTION 11. Organization at the Local Government
Level. - The existing Provincial, City, and Municipal
Disaster Coordinating Councils shall henceforth be
known as the Provincial, City, and Municipal Disaster
Risk Reduction and Management Councils. The
Barangay Disaster Coordinating Councils shall cease to
exist and its powers and functions shall henceforth be
assumed by the existing Barangay Development
Councils (BDCs) which shall serve as the LDRRMCs in
every barangay.
(a) Composition: The LDRRMC shall be composed of,
but not limited to, the following:
(1) The Local Chief Executives, Chairperson;
(2) The Local Planning and Development Officer,
member;
(3) The Head of the LDRRMO, member;
(4) The Head of the Local Social Welfare and
Development
Office, member;
97
(5) The Head of the Local Health Office, member;
( 6) The Head of the Local Agriculture Office, member;
(7) The Head of the Gender and Development Office,
member;
(8) The Head of the Local Engineering Office, member;
(9) The Head of the Local Veterinary Office, member;
(10) The Head of the Local Budget Office, member;
(11) The Division Head/Superintendent of Schools of the
DepED, member;
(12) The highest-ranking officer of the Armed Forces of
the Philippines (AFP) assigned in the area, member;
(13) The Provincial Director/City/Municipal Chief of the
Philippine National Police (PNP), member;
(14) The Provincial Director/City/Municipal Fire
Marshall of the Bureau of Fire Protection (BFP),
member;
(15) The President of the Association of Barangay
Captains (ABC), member;
(16) The Philippine National Red Cross (PNRC),
member;
(17) Four (4) accredited CSOs, members; and
(18) One (1) private sector representative, member.
(b) The LDRRMCs shall have the following functions:
(1) Approve, monitor and evaluate the implementation
of the LDRRMPs and regularly review and test the plan
consistent with other national and local planning
programs;
(2) Ensure the integration of disaster risk reduction and
climate change adaptation into local development plans,
programs and budgets as a strategy in sustainable
development and poverty reduction;
(3) Recommend the implementation of forced or
preemptive evacuation of local residents, if necessary;
and
(4) Convene the local council once every three (3)
months or as necessary.
SECTION 12. Local Disaster Risk Reduction and
Management Office (LDRRMO). - (a) There shall be
established an LDRRMO in every province, city and
municipality, and a Barangay Disaster Risk Reduction
and Management Committee (BDRRMC) in every
barangay which shall be responsible for setting the
direction, development, implementation and
coordination of disaster risk management programs
within their territorial jurisdiction.
(b) The LDRRMO shall be under the office of the
governor, city or municipal mayor, and the punong
barangay in case of the BDRRMC. The LDRRMOs shall
be initially organized and composed of a DRRMO to be
assisted by three (3) staff responsible for: (1)
administration and training; (2) research and planning;
and (3) operations and warning. The LDRRMOs and the
BDRRMCs shall organize, train and directly supervise
the local emergency response teams and the ACDVs.
(c) The provincial, city and municipal DRRMOs or
BDRRMCs shall perform the following functions with
impartiality given the emerging challenges brought by
disasters of our times:
(1) Design, program, and coordinate disaster risk
reduction and management activities consistent with the
National Council's standards and guidelines;
(2) Facilitate and support risk assessments and
contingency planning activities at the local level;
(3) Consolidate local disaster risk information which
includes natural hazards, vulnerabilities, and climate
change risks, and maintain a local risk map;
(4) Organize and conduct training, orientation, and
knowledge management activities on disaster risk
reduction and
management at the local level;
(5) Operate a multi-hazard early warning system, linked
to disaster risk reduction to provide accurate and timely
advice to national or local emergency response
organizations and to the general public, through diverse
mass media, particularly radio, landline
communications, and technologies for communication
within rural communities;
(6) Formulate and implement a comprehensive and
integrated LDRRMP in accordance with the national,
regional and provincial framework, and policies on
disaster risk reduction in close coordination with the
local development councils (LDCs);
(7) Prepare and submit to the local sanggunian through
the LDRRMC and the LDC the annual LDRRMO Plan
and budget, the proposed programming of the LDRRMF,
other dedicated disaster risk reduction and management
resources, and other regular funding source/s and
budgetary support of the LDRRMO/BDRRMC;
(8) Conduct continuous disaster monitoring and mobilize
instrumentalities and entities of the LGUs, CSOs, private
groups and organized volunteers, to utilize their facilities
and resources for the protection and preservation of life
and properties during emergencies in accordance with
existing policies and procedures;
(9) Identify, assess and manage the hazards,
vulnerabilities and risks that may occur in their locality;
(10) Disseminate information and raise public awareness
about those hazards, vulnerabilities and risks, their
98
nature, effects, early warning signs and counter-
measures;
(11) Identify and implement cost-effective risk reduction
measures/strategies;
(12) Maintain a database of human resource, equipment,
directories, and location of critical infrastructures and
their capacities such as hospitals and evacuation centers;
(13) Develop, strengthen and operationalize mechanisms
for partnership or networking with the private sector,
CSOs, and volunteer groups;
(14) Take all necessary steps on a continuing basis to
maintain, provide, or arrange the provision of, or to
otherwise make available, suitably-trained and
competent personnel for effective civil defense and
disaster risk reduction and management in its area;
(15) Organize, train, equip and supervise the local
emergency response teams and the ACDV s, ensuring
that humanitarian aid workers are equipped with basic
skills to assist mothers to breastfeed;
(16) Respond to and manage the adverse effects of
emergencies and carry out recovery activities in the
affected area, ensuring that there is an efficient
mechanism for immediate delivery of food, shelter and
medical supplies for women and children, endeavor to
create a special place where internally-displaced mothers
can find help with breastfeeding, feed and care for their
babies and give support to each other;
(17) Within its area, promote and raise public awareness
of and compliance with this Act and legislative
provisions relevant to the purpose of this Act;
(18) Serve as the secretariat and executive arm of the
LDRRMC;
(19) Coordinate other disaster risk reduction and
management activities;
(20) Establish linkage/network with other LGUs for
disaster risk reduction and emergency response
purposes;
(21) Recommend through the LDRRMC the enactment
of local ordinances consistent with the requirements of
this Act;
(22) Implement policies, approved plans and programs
of the LDRRMC consistent with the policies and
guidelines laid down in this Act;
(23) Establish a Provincial/City/Municipal/Barangay
Disaster Risk Reduction and Management Operations
Center;
(24) Prepare and submit, through the LDRRMC and the
LDC, the report on the utilization of the LDRRMF and
other dedicated disaster risk reduction and management
resources to the local Commission on Audit (COA),
copy furnished the regional director of the OCD and the
Local Government Operations Officer of the DILG; and
(25) Act on other matters that may be authorized by the
LDRRMC.
(d) The BDRRMC shall be a regular committee of the
existing BDC and shall be subject thereto. The punong
barangay shall facilitate and ensure the participation of
at least two (2) CSO representatives from existing and
active community-based people's organizations
representing the most vulnerable and marginalized
groups in the barangay.
The Proclamation, even as it claims to be based on this
law, inexplicably undermines this structure.
The law tasks the local government units to lead in
meeting disasters. Thus, in Section 2 of Republic Act
No. 10121:
(1) Recognize and strengthen the capacities of LGUs and
communities in mitigating and preparing for, responding
to, and recovering from the impact of disaster's;
(m) Engage the participation of civil society
organizations (CSOs), the private sector and volunteers
in the government's disaster risk reduction programs
towards complementation of resources and effective
delivery of services to the citizenry;
(n) Develop and strengthen the capacities of vulnerable
and marginalized groups to mitigate, prepare for,
respond to, and recover from the effects of disasters;
Furthermore, in Section 15:
SECTION 15. Coordination During Emergencies. - The
LDRRMCs shall take the lead in preparing for,
responding to, and recovering from the effects of any
disaster based on the following criteria:
(a) The BDC, if a barangay is affected;
(b) The city/municipal DRRMCs, if two (2) or more
barangays are affected;
(c) The provincial DRRMC, if two (2) or more
cities/municipalities are affected;
(d) The regional DRRMC, if two (2) or more provinces
are affected; and
(e) The NDRRMC, if two (2) or more regions are
affected.
The NDRRMC and intermediary LDRRMCs shall
always act as support to LGUs which have the primary
responsibility as first disaster responders. Private sector
and civil society groups shall work in accordance with
the coordination mechanism and policies set by the
NDRRMC and concerned LDRRMCs. (Emphasis
supplied)
99
Even if we assume that the Proclamation was a valid
exercise of police power, only the Municipality of
Malay, Aldan has been directly affected by the calamity.
This means that, statutorily, the Municipality's Local
Disaster Risk Reduction and Management Council
should take charge. Yet, the Proclamation reduces the
local government unit into a minor player in the
rehabilitation of the island.
Being contrary to the very law it alleges to be its
framework, Proclamation No. 475 is not a valid exercise
of police power.
XI
The situation in Boracay is not the only ecological
disaster that we face as a nation. The majority creates a
dangerous precedent.
For instance, climate change is an urgent and serious
calamity faced by the entire world. Our climate is
changing faster now than at any point in history. 76 We
have been experiencing a tremendous increase in carbon
dioxide in the air, ·melting icecaps, a consequent rise in
sea levels, frigid cold, and extreme heat. Scientists have
attributed this to human activity. The rapid rise in our
temperatures only started in 1880, during the second
industrial revolution, and most of the warming occurred
in the last 35 years.
Scientists at the Intergovernmental Panel on Climate
Change are urging the world to keep global warming to a
maximum of 1.5 degrees Celsius (1.5 °C) for the next 12
years. We are currently one degree Celsius (1.5°C)
warmer than preindustrial levels. This change is the
reason for the hurricanes in the United States, drought in
Cape Town, and forest fires in the Arctic. Half a degree
more than the 1.5 °C target will worsen droughts, floods,
and extreme weather conditions. Coral reefs may
disappear completely. Polar ice caps will melt, causing
our sea levels to rise. 77 Heat waves will be more intense.
Cold spells will be a lot worse; consequently, plant,
insect, and animal species will disappear, and human
lives will suffer.78 Countries such as ours without
financial and other resources at our disposal will suffer
more.
We need to address this situation perhaps more urgently
than the fecal coliform formation in our tourist areas.
Yet, these urgent anthropogenic crises cannot be solved
by indulging our impatience. Rather, solutions will
require both better governance and democratic
participation. Instead of relying on the beguiling
pragmatism of a strongman, we should, now more than
ever, have the humility to harness our abilities as
humans to consult, deliberate, and act together. We
should be aware that short-term solutions, which
produce short-term effects, may mask the true problems
and abuse those who live in our society's margins.
The growth of fecal coliform may be arrested with a
drastic and draconian clean-up. Clearly, without
addressing its true causes, the ecological remedy will be
temporary. The costs may be too high if such temporary
relief is purchased with the suspension of the rights of
those affected-especially the informal and marginal
workers on the island-with a legal precedent that does
not take the long view. That is why our environmental
laws are permanent statutes, and states of calamity are
only temporary and declared under very limiting
conditions.
Many of our tourist areas may have become what
economists call as open access areas. These areas are
subject to what Garett Hardin, an American ecologist
and philosopher, more than four (4) decades ago called
the "tragedy of the commons." 79 In this situation,
businesses, residents, and tourists cannot see beyond the
short-term enjoyment of the resource while well aware
of the degradation that others will cause. The solution to
such a tragedy is a more accountable enforcement of the
rules for the enjoyment of the environment and the
evolution of a stronger community. To assure the
existence of a true common property regime, everyone
involved must do what is expected of them.
The legitimation of the closure of Boracay through the
Proclamation at issue here easily opens the slippery
slope for ecological authoritarianism.
Boracay, originally home to the Ati, was discovered as a
pristine island. It attracted migrants, allowed them to
establish abodes, and claim ownership. Then, a catena of
administrations promoted it as a tourist attraction,
compelling its residents to adjust their lives accordingly.
Businesses flourished without an understanding of
Boracay's ecology's carrying capacity.
Worse, unscrupulous individuals created profits
purchased through illicit collusion with those who
should have regulated where they built, how they built,
how they dealt with their sewage, where they would get
their water. Boracay was destroyed by the
shortsightedness of some of the public officials in charge
and the unbelievable ignorance of the establishments that
profited from what should have been the sustainability of
their ecology.
Boracay is victim to the callousness driven by short-term
profits and insatiable greed. It is increasingly vulnerable
because of the growing absence of a genuine community
on the island.
This Court should assure those who are affected that it
will offer a genuine reflection of the constitutional order,
under which it seeks to find pragmatic yet longer lasting
solutions to our problems. This Court is the forum where
we can assure an ordinary sandcastle builder, a driver, or
an informal worker on the island that we all can be an
active part of the solution, as envisioned by our
democracy.
I regret that the liberality of the majority in not seeing
the constitutional and statutory violations of the
Proclamation, and the actions it spawned, will
undermine this constitutional order.
100
Authoritarian solutions based on fear are ironically
weak.1avvphi1 We still are a constitutional order that
will become stronger with a democracy participated in
by enlightened citizens.
Ours is not, and should never be, a legal order ruled by
diktat.
For these reasons, I dissent.
ACCORDINGLY, I vote to GRANT the Petition.
SEPARATE CONCURRING OPINION
CARPIO, J.:
This case involves the constitutionality of Proclamation
No. 475, 1 declaring a state of calamity in Barangays
Balabag, Manoc-Manoc and Yapak in 1,032-hectare
Boracay Island and ordering the temporary closure of the
island as a tourist destination for six. months, starting 26
April 2018 until 25 October 2018.
I vote to dismiss the petition.
Proclamation No. 475 was issued because of the
environmental degradation and destruction of the
ecological balance of Boracay Island, which was
aggravated by the continuing rise of tourist
arrivals. 2 Under Section 43 of Presidential Decree No.
1586,4 the President may declare certain areas in the
country as environmentally critical. To pave the way for
the rehabilitation of Boracay Island and prevent further
degradation of its rich ecosystem, the proclamation
ordered the temporary closure of the island as a tourist
destination for six months, 5 during which period the
government would undertake massive road, drainage,
and sewerage construction, as well as require all
establishments to comply with the Clean Water Act,
Clean Air Act, Code on Sanitation of the Philippines,
Ecological Solid Waste Management Act of 2000, and
other relevant laws. However, local residents of
Boracay Island were not prohibited from entering or
leaving the island during the rehabilitation period as
the prohibition applied only to travelers and tourists.
The rehabilitation of Boracay Island resulted in the
closure of almost all of the hotels because of non-
compliance with the Clean Water Act, Clean Air Act,
National Building Code of the Philippines, Code on
Sanitation of the Philippines, Ecological Solid Waste
Management Act of 2000, and the Environmental
Compliance Certificate requirement. 6 The Department
of Tourism suspended the accreditation of hotels and
resorts in Boracay Island for six months to stop the
disposal of wastewater into the seas.7 7Some
establishments have also built illegal structures on
Boracay's wetlands and forestlands which had to be
dismantled. 8 Furthermore, some companies were
operating without Environmental Compliance Certificate
(ECC), in violation of Presidential Decree No. 1586
which established the Environmental Impact Statement
System. 9
Swimming in the waters of Boracay Island was generally
not allowed during the six-month rehabilitation
period. 10 The illegal discharge of untreated wastewater
into the sea and the insufficient sewerage system caused
the high concentration of fecal coliform in some of the
beaches in Boracay Island. 11 The extremely high level of
coliform bacteria which reached 47,460 mpn (most
probable number) per 100 ml.12 of water sample was
alarming considering that the safe level for swimming
and other activities is just 1,000 mpn/100ml. of water
sample.13 Thus, the ban on swimming imposed by the
government was justified and necessary considering the
high coliform level in the waters of Boracay Island,
which was clearly unsafe for swimming and posed
serious health and sanitation hazards. 14
Many roads were closed for rehabilitation, widening, and
construction, including the main road network which is
the primary access to many establishments in the
island. 15 Not only were the roads widened, sewage pipes
were also laid to prevent sewage from flowing into the
beach waters, and drainage pipes were installed to
prevent clogged waterways which caused flooding
before the closure. 16 As such, traveling around Boracay
Island was severely restricted even for the local
residents. Under Section 1 of Commonwealth Act No.
548, 17 "[national] roads may be temporarily closed to
any or all classes of traffic by the Director of Public
Works or his duly authorized representative whenever
the condition of the road or the traffic thereon makes
such action necessary or advisable in the public interest,
or for a specified period, with the approval of the
Secretary of Public Works and Communications."
The rehabilitation of Boracay Island as a consequence of
Proclamation No. 475, declaring a state of calamity in
Boracay Island, resulted in: (1) the closure of majority of
the hotels and other business establishments for non-
compliance with environmental laws; (2) the closure of
many roads for repair, widening, and installation of
drainage pipes; and (3) the ban on swimming in the
beaches of Boracay Island due to the unsafe level of
coliform bacteria.
Given such a situation in Boracay Island, the invocation
on behalf of non-residents of Boracay Island of the right
to travel, which includes the right to move freely within
the country, 18 is misplaced. First, the valid closure of
roads severely restricted movement around the island.
Second, the closure of hotels and establishments pending
investigation and accreditation left tourists and non-
locals with no accommodations. Third, the valid ban on
swimming in Boracay beaches for sanitary and health
considerations made unavailable the main tourist
attraction of Boracay Island.
Clearly, the condition of Boracay Island during the six-
month rehabilitation period justified the prohibition on
travelers and tourists from entering Boracay Island
because of the physical impediment to traveling around
the island resulting from the massive road, sewerage and
drainage construction, the lack of accommodations, and
the ban on swimming and other water recreational
activities. Thus, Proclamation No. 4 75 is a valid
exercise of various existing laws, that is, Presidential
Decree No. 15 86, Commonwealth Act No. 548, Clean
101
Water Act of 2004 (Republic Act No. 9275), Clean Air
Act of 1999 (Republic Act No. 8749), National Building
Code of the Philippines (Republic Act No. 6541),
Ecological Solid Waste Management Act of 2000
(Republic Act No. 9003), and the Code on Sanitation of
the Philippines (Presidential Decree No. 856). These are
laws pursuant to the police power of the state. There is
no claim that these laws are unconstitutional. The
President, in the exercise of his control over the
Executive branch of government, 19 can directly exercise
the functions of subordinate officials tasked to
implement these laws.1avvphi1
Accordingly, I vote to DISMISS the petition.
SEPARATE CONCURRING OPINION
PERLAS-BERNABE, J.:
I concur.
Among other points, I agree with the ponencia that "this
case does not actually involve the right to travel in its
essential sense contrary to what petitioners want to
portray."1 In my view, there can be no violation of the
right to travel because, in the first place, Proclamation
No. 4752 is not an issuance that substantively regulates
such right.
To expound, the right to travel has been regarded as
integral to personal liberty,3 which Blackstone defines as
"freedom from restraint of the person."4 The guarantee of
free movement may be historically traced5 to the Magna
Carta of 1215 which assured the liberty for anyone,
except those imprisoned, outlawed, and the natives of an
enemy country, safe and secure entry to and exit from
England. It likewise assured merchants, that they may
enter, leave, stay, and move about England "unharmed
and without fear."6 Much later, or in 1948, the Universal
Declaration of Human Rights (UDHR) recognized
everyone's right to freedom of movement within the
borders of each state, as well as the one's right to leave
and return to his country.7 The guarantee was likewise
incorporated in the 1966 International Covenant on Civil
and Political Rights,8 which the Philippines signed in the
same year.9 This guarantee was incorporated in our
fundamental law in the 1973 Constitution,10 and now
appears in the 1987 Constitution.11
An examination of local cases wherein the right to travel
was involved will support the premise that the right to
travel – if one were to understand the same in its proper
sense – ought to pertain to government regulations that
directly affect the individual's freedom of locomotion or
movement. For instance, in Samahan ng mga
Progresibong Kabataan v. Quezon City,12 the minors'
exercise of travel rights was restricted by the curfew
ordinances. In several cases,13 the accused in a criminal
case, especially those released on bail, were held to be
validly prevented from departing from the Philippines.
In Philippine Association of Service Exporters, Inc. v.
Drilon,14 the deployment ban was imposed on female
domestic overseas workers. Further, during medical
emergencies, a person may be isolated or quarantined to
prevent the spread of communicable diseases. 15
Even the statutes recognized as validly impairing the
right to travel have, for its proper object, a palpably
direct restraint on a person's freedom of movement, viz.:
(1) in the Human Security Act,16 the 1aw restricts the
right to travel of an individual charged with the crime of
terrorism even though such person is out on bail; (2) in
the Philippine Passport Act of 1996,17 the Secretary of
Foreign Affairs or his authorized consular officer may
refuse the issuance of, restrict the use of, or withdraw, a
passport of a Filipino citizen; (3) in the Anti-Trafficking
in Persons Act of 2003,18 the Bureau of Immigration, in
order to manage migration and curb trafficking in
persons, issued Memorandum Order RADJR No. 2011-
011,19 allowing its Travel Control and Enforcement Unit
to "offload passengers with fraudulent travel
documents, doubtful purpose of travel, including
possible victims of human trafficking" from the
Philippine ports; and (4) in the Inter-Country Adoption
Act of 1995,20 the Inter-Country Adoption Board may
issue rules restrictive of an adoptee's right to travel "to
protect the Filipino child from abuse, exploitation,
trafficking, and/or sale or any other practice in
connection with adoption which is harmful, detrimental,
or prejudicial to the child."21
In all these instances, the restrictions on the right to
travel were imposed on a person or group of
persons,22 seemingly attaching unto them some form of
"ball and chain" to limit their movement. Clearly, this is
not the situation presented in this case. While the
closure of Boracay pursuant to Proclamation No. 475
prohibited the entry of tourists and non-residents thereto,
these people still remained free to move about in other
parts of the country without arbitrary restraint. Thus,
whatever effect such regulation may have on a person's
ability to travel to such a specific place is merely
incidental in nature and accordingly, is conceptually
remote from the right's proper sense. To my mind,
Proclamation No. 475 is more akin to government
regulations that amount to the "cordoning-off" of areas
ravaged by flood, fire, or other calamities, where access
by people thereto may indeed be prohibited pursuant to
considerations of safety and general welfare based on
circumstantial exigencies. Thus, as the right to travel is
not the correct vantage point to resolve this case, there is
no need to determine whether or not an explicit statutory
enactment exists to justify the impairment of said right
as required under Section 6, Article III of the 1987
Constitution.23
Lest it be misunderstood, the extrication of this case
from a "right to travel analysis" does not necessarily
mean that the President is, by his sole accord,
both authorized and justified in issuing Proclamation
No. 475.
Fundamentally speaking, the President is the Chief of the
Executive Department whose main task is to faithfully
execute the laws. In its simple sense, his duty is not to
make law, but rather, implement the law. Proclamation
No. 475 is not law, but rather, an executive issuance
which derives statutory imprimatur from existing laws
and hence, has the "force and effect" of law. As its titular
heading denotes, Proclamation No. 475 is a declaration
of a state of calamity in the barangays of Balabag,
Manoc-Manoc, and Yapak (Island of Boracay) in the
102
Municipality of Malay, Aldan. In order to address the
situation declared thereunder, it was necessary for the
Executive to effect "expeditious rehabilitation," and to
implement this objective, the President had to direct the
area's temporary closure.
To be sure, insofar as this case is concerned, the power
of the President to declare a state of calamity over a
particular locality may be sourced from the
Administrative Code of 198724 in relation to the
Philippine Disaster Risk Reduction and Management
Act of 2010.25 Based on these laws, the President,
pursuant to the recommendation of the National Disaster
Risk Reduction and Management Council (NDRRMC),
is authorized to "declare a state of calamity 26 in areas
extensively damaged," as well as to approve "proposals
to restore normalcy in the affected areas." 27 On this
basis, the NDRRMC recommended to the President not
only the declaration of a state of calamity in Boracay but
also, as a means to restore normalcy therein, the
"temporary closure of the Island as a tourist destination"
for the purpose of assisting the government in the
"expeditious rehabilitation" of the same.28 Thus, as an
off-shoot of the declaration of a state of calamity, and
acting upon the recommendation of the NDRRMC, the
President found it necessary to decree the temporary
closure of the affected areas if only to ensure the Island's
proper rehabilitation.
While it appears that the above-cited statutes do not spell
out in "black and-white" the President's power to
temporarily close-off an area, it is my opinion that a
logical complement to the Executive's power to
faithfully execute the laws is the authority to perform all
necessary and incidental acts that are reasonably
germane to the statutory objective that the President is,
after all, tasked to execute. What comes to mind is the
doctrine of necessary implication which evokes that
"[e]very statute is understood, by implication, to contain
all such provisions as may be necessary to effectuate its
object and purpose, or to make effective rights, powers,
privileges or jurisdiction which it grants, including all
such collateral and subsidiary consequences as may be
fairly and logically inferred from its terms. Ex
necessitate legis. And every statutory grant of power,
right or privilege is deemed to include all incidental
power, right or privilege."29 This principle, in its general
sense, holds true in this case. By and large, I find it
unreasonable that a President who declares a state of
calamity, and who has been further prompted by a
specialized government agency created for disaster
operations pursuant to existing laws to effect a viable
plan of action is nonetheless impotent to pursue the
necessary steps to effect a viable plan of action. Surely,
the President must be given reasonable leeway to
address calamitous situations, else he be reduced to a
mere mouthpiece of doom.
At this juncture, it is apt to state that Proclamation No.
475 explicitly recognizes in its "whereas clauses" the
State's constitutional duty to protect and advance the
rights to health and to a balanced and healthful
ecology,30 which duty has been translated in numerous
legislative enactments, such as the Philippine Clean
Water Act of 2004,31 and as mentioned, the Philippine
Disaster Risk Reduction and Management Act of 2010,
as well as the Administrative Code of 1987. The
Philippine Clean Water Act of 2004 authorizes the
Department of Environment and Natural Resources
(DENR) to undertake emergency clean-up
operations32 to counter water pollution. As earlier
mentioned, the Philippine Disaster Risk Reduction and
Management Act of 2010 empowers the NDRRMC to
recommend the declaration of a state of calamity in areas
extensively damaged by either natural or human-induced
hazards such as environment degradation, as well as
proposals to restore normalcy in the affected areas, such
as through rehabilitation33 or the rebuilding of damaged
infrastructures. Further, the Administrative Code of 1987
grants the DENR the power to "exercise supervision and
control over [alienable public lands],"34 such as Boracay,
and the Department of Interior and Local Government
the authority to implement programs "to meet national or
local emergencies arising from natural or man-made
disasters,"35 such as environmental destruction.
Ultimately, the agglomeration of the above-stated laws
reveals that the Executive Department has sufficient
statutory authority to clean up the Island. Since the
Constitution vests all executive power in the President,
and on this score, grants him the power of control over
all executive departments, he can, within the bounds of
law, integrate and take on the above-stated functions,
and in the exercise of which, issue a directive to
implement an environmental rehabilitation program as
recommended by the relevant state agency. At the risk of
sounding repetitive, the temporary closure of the Island
to tourists was necessary to effectively execute Boracay's
rehabilitation program pursuant to a declaration of a
state of calamity. Therefore, the President had sufficient
authority from both the Constitution and statutes to issue
Proclamation No. 475. That being said, and as a point of
clarification, I find it unnecessary to situate such
authority in his unstated residual powers.36
Having discussed the President's authority, the final
question to be traversed is whether or not there was
ample justification for the issuance of Proclamation No.
475
As previously mentioned, this case should not be
assessed against the parameters of the right to
travel.1âшphi1 As Proclamation No. 475 constitutes a
restriction not against a person's freedom of movement,
but rather, a "place based" regulation, I deem it
appropriate to instead examine the issuance's validity
under the lens of petitioners' right to property under
Section 1, Article III of the 1987 Constitution. After all,
this approach specifically corresponds to petitioners' line
of argumentation. In particular, as found in the petition,
petitioners Mark Anthony V. Zabal (Zabal) and Thiting
Estoso Jacosalem (Jacosalem) assail the validity of
Proclamation No. 475 on the ground that it violated their
right as persons earning a living in the Boracay Island.
As alleged, Zabal earns a living by making sandcastles
while Jacosalem works as a driver for
tourists.37 Accordingly, they submit that the exclusion of
tourists from the Island drastically affected their trade or
livelihood.38
Under the auspices of Section 1, Article III of the 1987
Constitution, protected property includes the right to
103
work and the right to earn a living.39 The purpose of the
due process guaranty is "to prevent arbitrary
governmental encroachment against the life, liberty, and
property of individuals."40 While the right to property is
sheltered by due process provision, it is by no means
absolute as it must yield to the general welfare. 41 Thus,
the State may deprive persons of property rights
provided that the means employed are reasonably
necessary for the accomplishment of the purpose and not
unduly oppressive upon individuals.42
In this case, although the exclusion of tourists from the
Island drastically affected the trade or livelihood of those
reliant on them, including petitioners, I submit that the
government had a legitimate State interest in
rehabilitating the affected localities of Boracay given the
Island's current critical state. Findings of various
government agencies in the Island reveal its precarious
environmental condition, to wit: (a) high concentration
of fecal coliform due to improper sewage infrastructure
and sewer waste management system; (b) dirty water
resulting in the degradation of coral reefs and coral
cover; (c) improper solid waste management; (d)
destruction of natural habitats in the island; (e) beach
erosion caused by illegal extraction of sand along the
beach; (f) illegal structures along the foreshore; and (g)
unauthorized discharge of untreated waste water near the
shore.43 Notably, these environmental problems were
found to have been aggravated by "tourist influx."44
To effectively remedy the Island's environmental woes,
"expeditious rehabilitation" thereof became crucial, and
in line therewith, the entry of tourists became necessary
to suspend. As aptly rationalized in the ponencia:
Certainly, the closure of Boracay, albeit temporarily,
gave the island its much needed breather, and likewise
afforded the government the necessary leeway in its
rehabilitation program. Note that apart from review,
evaluation and amendment of relevant policies, the bulk
of the rehabilitation activities involved inspection,
testing, demolition, relocation, and construction.
These works could not have easily been done with
tourists present. The rehabilitation works in the first
place were not simple, superficial or mere cosmetic
but rather quite complicated, major, and permanent
in character as they were intended to serve as long
term solutions to the problem. x x x Moreover, as part
of the rehabilitation efforts, operations of establishments
in Boracay had to be halted in the course thereof since
majority, if not all of them, need to comply with
environmental and regulatory requirements in order to
align themselves with the government's goal to restore
Boracay into normalcy and develop its
sustainability. Allowing tourists into the island while it
was undergoing necessary rehabilitation would
therefore be pointless as no establishment would
cater to their accommodation and other needs.
Besides, it could not be said that Boracay, at the time of
the issuance of the questioned proclamation, was in such
a physical state that would meet its purpose of being a
tourist destination. For one, its beach waters could not be
said to be totally safe for swimming. x x x Indeed, the
temporary closure of Boracay, although unprecedented
and radical as it may seem, was reasonably necessary
and not unduly oppressive under the circumstances. It
was the most practical and realistic means of
ensuring that rehabilitation works in the island are
started and carried out in the most efficacious and
expeditious way.45 (Emphases supplied)
Moreover, the limited six (6)-month period shows that
the closure was not unduly oppressive upon individuals,
and was put in place only to implement the desired State
objective. Therefore, all things considered, Proclamation
No. 475 cannot be said to have been issued with grave
abuse of discretion, and as such, remains constitutional.
Accordingly, I vote to DISMISS the petition.
CONCURRING AND DISSENTING OPINION
JARDELEZA, J.:
The following are the basic facts of the case:
On April 26, 2018, President Rodrigo R. Duterte issued
Proclamation No. 475 declaring a state of calamity in the
Island of Boracay in Malay, Aklan, and ordered the
closure of the island as a tourist destination for six
months, or until October 25, 2018. Petitioners Mark
Anthony Zabal (Zabal), Thiting Estoso Jacosalem
(Jacosalem), and Odon S. Bandiola (Bandiola) filed this
special civil action for prohibition and mandamus (with
application for temporary restraining order, preliminary
injunction and/or status quo ante order) seeking to,
among others, enjoin the implementation of
Proclamation No. 475 and compel public respondents to
allow the entry of both tourists and residents into
Boracay Island.
Before going into the substance of the issues raised in
the petition, I note that petitioners sought direct recourse
with this Court on the ground, among others, that
"[t]here are no factual issues raised in this case, only
questions of law x x x." 1 Indeed, this Court exercises
original jurisdiction over petitions for prohibition and
mandamus concurrently with the Court of Appeals (CA)
and the Regional Trial Courts (RTCs).2 The doctrine of
hierarchy of courts, however, dictates that such actions
first be filed before the trial courts. Save for the specific
instance provided under the Constitution,3 this Court is
not a trier of facts. 4 Its original jurisdiction cannot be
invoked to resolve issues which are inextricably
connected with underlying questions of fact.
This Court is a court of last resort, and must so
remain if it is to satisfactorily perform the functions
assigned to it by the Constitution.5 Direct recourse to
this Court may, as petitioners correctly suggest, be
allowed only to resolve questions which do not
require the prior adjudication of factual issues. It is
thus on this basis that I will examine and resolve the
present petition.
Petitioners challenge the legality of Proclamation No.
4756 insofar as it ordered the closure of Boracay Island
on the following grounds: ( 1) it is an invalid exercise by
the President of legislative power; (2) it violates the right
to travel insofar as it seeks to restrict the entry of tourists
and non-residents into the island; (3) it operates to
104
deprive persons working in the island of their means of
livelihood without due process of law; and (4) it violates
the principle of local autonomy insofar as affected local
government units are ordered to implement the closure. 7
My examination of the issues raised and arguments
offered by petitioners shows that, of the four principal
issues raised against the constitutionality of
Proclamation No. 475, only the first issue poses a
question the complete resolution of which does not
involve underlying questions of fact. On the other hand,
and as I shall later demonstrate, the three remaining
issues involve underlying questions of fact which cannot
be resolved by this Court at the first instance.
I Disaster risk reduction and management measures can
Petitioners claim that Proclamation No. 475 is an invalid
exercise by the President of legislative
power. 8 According to petitioners, access to Boracay can
be validly restricted (as part of the right to travel) only
through the exercise of police power, that is, by law.
They maintain that no such law exists; thus, the
President, by restricting and altogether prohibiting entry
to Boracay Island, has arrogated unto himself legislative
powers rightfully belonging to the Congress.9
The primary legal question therefore is whether there is a
law which allows for a restriction on the right to travel to
Boracay.1âшphi1 If the Court finds that there is none,
then this litigation should end with the grant of the
petition. If, however, the Court finds that such a law
exists, it must then determine whether there was a valid
delegation to the President of the power to restrict travel.
I find that the President has the authority, under
Republic Act No. (RA) 10121, 10 to issue the challenged
Proclamation as an exercise of his power of subordinate
legislation.
First, the text of the Proclamation clearly counts RA
10121 among its legal bases for the temporary closure
ofBoracay Island. I quote:
WHEREAS, pursuant to RA No. 10121, or the
Philippine Disaster Risk Reduction and Management
Act of 2010, the National Disaster Risk Reduction and
Management Council has recommended the declaration
of a State of Calamity in the Island of Boracay and
the temporary closure of the Island as a tourist
destination to ensure public safety and public health,
and to assist the government in its expeditious
rehabilitation, as well as in addressing the evolving
socio-economic needs of affected communities;
x x x x 11
Second, RA 10121 allows for a restriction on the right to
travel under certain circumstances.
The expressed legislative intention in RA 10121 was
"for the development of policies and plans and the
implementation of actions and measures pertaining
to all aspects of disaster risk reduction and
management." 12 Disaster risk reduction and
management was, in turn, defined under Section 3(o) as
follows:
(o) "Disaster Risk Reduction and Management" - the
systematic process of using administrative directives,
organizations, and operational skills and capacities to
implement strategics, policies and improved coping
capacities in order to lessen the adverse impacts of
hazards and the possibility of disaster. Prospective
disaster risk reduction and management refers to risk
reduction and management activities that address and
seek to avoid the development of new or increased
disaster risks, especially if risk reduction policies are not
put in place. 13
run the gamut from disaster prevention to disaster
mitigation, disaster preparedness, and disaster response,
all of which are also defined under RA 10121 as follows:
Sec. 3. Definition of Terms. - For purposes of this Act,
the following shall refer to:
xxxx
(h) "Disaster" - a serious disruption of the functioning of
a community or a society involving widespread
human, material, economic or environmental losses
and impacts, which exceeds the ability of the affected
community or society to cope using its own resources.
Disasters are often described as a result of the
combination of: the exposure to a hazard; the conditions
of vulnerability that are present; and insufficient capacity
or measures to reduce or cope with the potential negative
consequences. Disaster impacts may include loss of life,
injury, disease and other negative effects on human,
physical, mental and social well-being, together with
damage to property, destruction of assets, loss of
services, social and economic disruption
and environmental degradation.
(i) "Disaster Mitigation" - the lessening or limitation of
the adverse impacts of hazards and related disasters.
Mitigation measures encompass engineering techniques
and hazard-resistant construction as well as improved
environmental policies and public awareness.
U) "Disaster Preparedness" - the knowledge and
capacities developed by governments, professional
response and recovery organizations, communities and
individuals to effectively anticipate, respond to, and
recover from, the impacts of likely, imminent or
current hazard events or conditions. Preparedness
action is carried out within the context of disaster risk
reduction and management and aims to build the
capacities needed to efficiently manage all types of
emergencies and achieve orderly transitions from
response to sustained recovery. Preparedness is based
on a sound analysis of disaster risk and good linkages
with early warning systems, and includes such
activities as contingency planning, stockpiling of
equipment and supplies, the development of
arrangements for coordination, evacuation and
public information, and associated training and field
exercises. These must be supported by formal
institutional, legal and budgetary capacities.
105
(k) "Disaster Prevention" - the outright avoidance of
adverse impacts of hazards and related disasters. It
expresses the concept and intention to completely avoid
potential adverse impacts through action taken in
advance such as construction of dams or embankments
that eliminate flood risks, land-use regulations that do
not permit any settlement in high-risk zones, and
seismic engineering designs that ensure the survival and
function of a critical building in any likely earthquake.
(I) "Disaster Response" - the provision of emergency
services and public assistance during or immediately
after a disaster in order to save lives, reduce health
impacts, ensure public safety and meet the basic
subsistence needs of the people affected. Disaster
response is predominantly focused on immediate and
short-term needs and is sometimes called "disaster
relief."
x x x x 14
Thus, within the range of disaster risk reduction and
management measures can be found forced or
preemptive evacuation and prohibitions against
settlement in high-risk zones, both of which
necessarily implicate some restriction on a person's
liberty of movement to ensure public safety.
Third, in obvious recognition of its inability to "cope
directly with the myriad problems" 15 attending the
matter, the Congress created administrative agencies,
such as the National Disaster Risk Reduction and
Management Council (NDRRMC) and the Local
Disaster Risk Reduction and Management Councils
(LDRRMCs ), to help implement the legislative policy
of disaster risk reduction and management under RA
10121.
Under the law, the NDRRMC, for example, was tasked
to, among others, develop a national disaster risk
reduction and management framework (NDRRMF),
which shall serve as "the principal guide to disaster risk
reduction and management efforts in the
country," 16 advise the President on the status of disaster
preparedness, recommend the declaration (and lifting)
by the President of a state of calamity in certain areas,
and submit proposals to restore normalcy in affected
areas. 17 Under Section 25, it was also expressly tasked
to come up with "the necessary rules and regulations for
the effective implementation of [the] Act."
These, to me, are evidence of a general grant of quasi-
legislative power, or the power of subordinate
legislation, in favor of the implementing agencies. With
this power, administrative bodies may implement the
broad policies laid down in a statute by "filling in" the
details which the Congress may not have the opportunity
or competence to provide. 18 In Abakada Gura Party List
v. Purisima, 19 this Court explained:
Congress has two options when enacting legislation to
define national policy within the broad horizons of its
legislative competence. It can itself formulate the details
or it can assign to the executive branch the responsibility
for making necessary managerial decisions in
conformity with those standards. In the latter case, the
Jaw must be complete in all its essential terms and
conditions when it leaves the hands of the legislature.
Thus, what is left for the executive branch or the
concerned administrative agency when it formulates
rules and regulations implementing the law is to fill up
details (supplementary rule-making) or ascertain facts
necessary to bring the law into actual operation
(contingent rule-making).20 (Citations omitted.)
This results in delegated legislation21 which, to be valid,
should not only be germane to the objects and purposes
of the law; it must also conform to (and not contradict)
the standards prescribed by the law.22
Pursuant to the broad authority given to them, the
NDRRMC and the President, following standards
provided under the law, thus sought to fill in the details
on how the provisions of RA 10121 may be enforced,
including, but not limited to, identification of: the
conditions that must exist before a state of calamity can
be declared; the effects of a declaration of a state of
calamity; 23 the length of time the state of calamity will
be enforced; the formulation and implementation of
evacuation plans, including the guidelines on when,
where, how, and who will be evacuated; the agency who
will implement the evacuation plan; and other details.
Fourth, Proclamation No. 475 is a valid exercise of the
power of subordinate legislation.
Here, after consideration of the conditions existing in the
Island of Boracay,24 he President, upon recommendation
of the NDRRMC, decided to place the island under a
State of Calamity. 25 This is a power expressly lodged in
the President under Section 16, which reads:
Sec. 16. Declaration of State of Calamity. - The National
Council shall recommend to the President of the
Philippines the declaration of a cluster of barangays,
municipalities, cities, provinces, and regions under a
state of calamity, and the lifting thereof, based on the
criteria set by the National Council. The President's
declaration may warrant international humanitarian
assistance as deemed necessary.
The declaration and lifting of the state of calamity may
also be issued by the local sanggunian, upon the
recommendation of the LDRRMC, based on the results
of the damage assessment and needs analysis.
As set forth in Proclamation No. 475 itself, the
conditions in the island were such that it became
"necessary to implement urgent measures to address xx x
human-induced hazards, to protect and promote the
health and well-being of its residents, workers and
tourists, and to rehabilitate the Island in order to ensure
the sustainability of the area and prevent further
degradation of its rich ecosystem."26 I thus find that the
avowed purpose of the Proclamation, which is "to ensure
public safety and public health, and to assist the
government in its expeditious rehabilitation," is
unarguably germane to the .object and purpose of RA
10121, which is disaster risk reduction and management.
106
In The Conference of Maritime Manning Agencies, Inc.
v. Philippine Overseas Employment
Administration, 27 this Court, speaking through former
Chief Justice Hilario Davide, Jr., noted that the
following have been held sufficient standards for
purposes of subordinate legislation: "public welfare,"
"necessary in 'the interest of law and order," "public
interest," "justice and equity," "public convenience and
welfare," 'justice and equity and substantial merits of the
case," "simplicity, economy and efficiency," and
"national interest."28 I find that the challenged action of
the President conforms with the standards under RA
10121, which include public safety, public health, and
disaster mitigation, among others.
Fifth, in carrying RA 10121 into effect, the
implementing agencies have consistently interpreted
their power to "evacuate"29 to necessarily include the
power to restrict entry into a particular place. 30 This is
evident in the alarm measures and systems of a number
of government instrumentalities.
In the case of impending or actual volcanic eruptions,
the Philippine Institute of Volcano logy and Seismology
(PHIVOLCS) has established alert levels in its
monitoring of active volcanoes in the country. Each level
has its own set of criteria and recommended course of
action to be taken, including prohibiting entry into and
expanding the danger zones. 31 Likewise, depending on
the declared alert level, the NDRRMC, through its local
counterparts, enforces forced evacuations and prohibits
entry and farming in localities found within the
danger zones. 32
In cases of tropical cyclones or typhoons, the Philippine
Atmospheric, Geophysical and Astronomical Services
Administration (PAGASA) uses public storm warning
signals to describe the existing meteorological condition
and impact of the winds. Each signal also indicates the
precautionary measures which must be undertaken and
what the affected areas must do. For public storm
warning signals 3 and 4, evacuation and cancellation of
all travel and outdoor activities are advised. 33
Similarly, to mitigate the effects of flooding during
heavy rains, Marikina City employs a three-stage alarm
level system for the Marikina River, based on the depth
of water in the river below the Sto. Niño Bridge:
• Alarm Level 1 (1 minute continuous airing), when the
water is 15 meters above sea level, means "prepare."
• Alarm Level 2 (2 minutes intermittent airing), when the
water is 16 meters above sea level, means "evacuate."
• Alarm Level 3 (5 minute continuous airing), when the
water is 18 meters above sea level, means "forced
evacuation."34
When the river's water level rises, the local Disaster Risk
Reduction and Management office uses a siren to alert
surrounding communities of the current alarm level. 35
This contemporaneous construction by the NDRRMC,
the different LDRRMCs, and local goven1ment units, as
well as the other agencies tasked to implement the
provisions of RA 10121, of their powers ordinarily
controls the construction of the courts:
The rationale for this rule relates not only to the
emergence of the multifarious needs of a modern or
modernizing society and the establishment of diverse
administrative agencies for addressing and satisfying
those needs; it also relates to the accumulation of
experience and growth of specialized capabilities by the
administrative agency charged with implementing a
particular statute. In Asturias Sugar Central, Inc. v.
Commissioner of Customs, the Court stressed that
executive officials are presumed to have familiarized
themselves with all the considerations pertinent to the
meaning and purpose of the law, and to have formed an
independent, conscientious and competent expert
opinion thereon. The courts give much weight to the
government agency or officials charged with the
implementation of the law, their competence, expertness,
experience and informed judgment, and the fact that they
frequently are drafters of the law they interpret. 36
Sixth, administrative regulations and policies enacted by
administrative bodies to interpret the law which they are
entrusted to enforce have the force of law and enjoy a
presumption of regularity.
In Espanol v. Chairman, Philippine Veterans
Administration,37 this Court held that the Philippine
Veterans Administration's (PVA) policywhich withheld
the payment of pension to beneficiaries of veterans who
are already rece.iving pension from United States (U.S.)
Veterans Administration-has in its favor a presumption
of validity. Thus, the Court ruled that it was only when
this administrative policy was declared invalid can
petitioner be said to have a cause of action to compel the
PYA to pay her monthly pension. 38
In Rizal Empire Insurance Group v. NLRC, 39 petitioner's
appeal was dismissed for failure to follow the "no
extension policy" set forth under the Rules of the
National Labor Relations Commission. According to the
Court, it is an elementary rule in administrative law that
administrative regulations and policies, enacted by
administrative bodies to interpret the law which they are
entrusted to enforce, have the force of law and are
entitled to great respect.40
More recently, in the case of Alfonso v. Land Bank of the
Philippines,41 this Court held that the formulas for the
computation of just compensation, being an
administrative regulation issued by the Department of
Agrarian Reform pursuant to its rule-making and
subordinate legislation power, have the· force and effect
of law. "Unless declared invalid in a case where its
validity is directly put in issue, courts must consider
their use and application."42
107
Even in the U.S., the government agency's own reading
of a statute which it is charged with administering is
given deference. In Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 43 the U.S. Supreme
Court employed a two-step test in determining what
standard of review should be applied in assessing the
government agency's interpretation and gave deference
to the latter's interpretation:
When a court reviews an agency's construction of the
statute which it administers, it is confronted with two
questions. First, always. is the question whether
Congress has directly spoken to the precise question at
issue. If the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency must give
effect to the unambiguously expressed intent of
Congress. If, however, the court determines Congress
has not directly addressed the precise question at issue,
the court does not simply impose its own construction on
the statute, as would be necessary in the absence of an
administrative interpretation. Rather, if the statute is
silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency's answer is
based on a permissible construction of the statute. 44
Finally, since the law's enactment in 2010, there has
been no attempt on the part of Congress to correct or
reverse the consistent contemporaneous construction of
the law by the different agencies implementing RA
10121. This is especially noteworthy considering the
existence of a Congressional Oversight Committee,
composed of members from both its Houses, which was
created precisely to "monitor and oversee the
implementation of [RA 10121]’’45 and evaluate, among
others, the performance of the law's implementing
agencies. 46 That this Committee has not taken steps to
correct, revise, or repeal the agencies' contemporaneous
construction of RA 10121's provisions further buttresses
the view that the construction given by the different
administrative agencies conforms to the standards and
the interpretation intended by the Legislature.
In sum, I find that the President has the authority, under
RA 10121, to issue the challenged Proclamation as a
valid exercise of his power of subordinate legislation.
With this, I vote to DISMISS the petition. The Court
should decline to resolve the remaining questions raised
in the petition as, and which I shall hereafter discuss,
they unavoidably involve questions of fact which this
Court cannot entertain and resolve.
II
Petitioners' next two remaining arguments revolve
around Proclamation No. 475's alleged violation of their
fundamental rights to travel and due process of law.
While petitioners claim that these arguments pose
questions of law, I find that they actually raise and
involve underlying questions of fact.
A State.57 To justify such interference, two requisites must
Indeed, the rights to travel and due process of law are
rights explicitly guaranteed under the Bill of Rights.
These rights, while fundamental, are not absolute.
Section 6, Article III of the Constitution itself provides
for three instances when the right to travel may be
validly impaired:
Sec. 6. The liberty of abode and of changing the same
within the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall the
right to travel be impaired except in the interest of
national security, public safety, or public health, as
may be provided by law.47
Even prior to the Constitution, this Court, in the 1919
case of Rubi v. Provincial Board of Mindoro, 48 has held
that there is no absolute freedom of locomotion. The
right of the individual is necessarily subject to
reasonable restraint for the common good, in the interest
of the public health or public order and safety. In Leave
Division, Office of Administrative Services-Office of the
Court Administrator (OCA) v. Heusdens,49 which
involved an administrative case against a court employee
for failure to secure authority to travel abroad in
violation of OCA Circular No. 49-2003, the Court took
occasion to identify the various constitutional, statutory,
and inherent limitations regulating the right to travel.
This was reiterated in Genuino v. De Lima, 50 where this
Court invalidated Department of Justice Circular No. 41-
which purported to restrict the right to travel through the
issuance of hold departure and watchlist orders-for lack
of legal basis.51
In the United States, the U.S. Supreme Court, in the case
of Zemel v. Rusk,52 identified circumstances which may
justify the restriction on the right to travel: (1) areas
ravaged by flood, fire, or pestilence can be quarantined
when it can be demonstrated that unlimited travel to the
area would directly and materially interfere with the
safety and welfare of the area or the Nation as a whole;
and (2) weightiest considerations of national security.
Likewise, the case of Alexander v. City of
Gretna53 emphasized that compelling safety and welfare
reasons, the preservation of order and safety, and health
concerns can serve to justify an intrusion on the
fundamental right to interstate travel. In State v.
Wright54 and later, in Sim v. State Parks &
Recreation, 55 the Washington Supreme Court upheld the
State Parks & Recreation Commission's authority, at
reasonable times, at reasonable places, and for
reasonable reasons, consistent with public safety and
recreational activities, to temporarily close ocean beach
highways to motor vehicular traffic.
Similarly, the right of a person to his labor is deemed to
be property within the meaning of constitutional
guarantees, that is, he cannot be deprived of his means of
livelihood, a property right, without due process of
law. 56 Nevertheless, this property right, not unlike the
right to travel, is not absolute. It may be restrained or
burdened, through the exercise of police power, to
secure the general comfort, health, and prosperity of the
concur: (a) the interests of the public generally, as
distinguished from those of a particular class, require the
interference of the State; and (b) the means employed are
reasonably necessary to the attainment of the object
sought to be accomplished and not unduly oppressive
108
upon individuals. In other words, the proper exercise of
the police power requires the concurrence of a lawful
subject and a lawful method. 58
B i. Beach erosion is prevalent in Boracay Island
Having established that the rights to travel and due
process are not absolute, as they can in fact be validly
subject to restrictions under certain specified
circumstances, it seems to me that petitioners' issues
against Proclamation No. 475 respecting their rights to
travel and due process hinge not so much on whether
said Proclamation imposes a restriction, but whether the
restrictions it imposed are reasonable.59 Specifically,
petitioners argue that: the ordered closure of Boracay
Island is an extreme measure; 60 it is overly broad,·
oppressive, unreasonable, and arbitrary; and that there
are more less restrictive and more narrowly drawn
measures which the government can employ to protect
the State's interest.61
What is "reasonable," however, is not subject to exact
definition or scientific formulation. There is no all-
embracing test of reasonableness;62 its determination
rests upon human judgment as applied to the facts
and circumstances of each particular case.63
In this case, the following factual circumstances were
considered, which led to the 'issuance of Proclamation
No. 475:
a. High concentration of fecal coliform due to
insufficient sewer lines and illegal discharge of
untreated waste water into the beach, with daily
tests revealing consistent failure in compliance
with acceptable water standards, with an average
result of 18,000 most probable number
(MPN)/100 ml, exceeding the standard level of
400 MPN/100 ml;
b. Failure of most commercial establishments
and residences to connect to the sewerage
infrastructure of Boracay Island;
c. Improper waste disposal, in violation of
environmental laws, rules, and regulations;
d. Majority (14 out of 51) of the establishments
near the shore are not compliant with the
Philippine Clean Water Act of 2004;
e. Degradation of the coral reefs and coral cover
of Boracay Island as a consequence of continued
exposure to dirty water caused by increased
tourist arrivals;
f. Solid waste within Boracay Island is at a
generation rate of 90 to 115 tons per day, while
the hauling capacity of the local government is
only 30 tons per day;
g. The natural habitats of Puka shells, nesting
grounds of marine turtles, and roosting grounds
of flying foxes or fruit bats have been damaged
and/ or destroyed;
h. Only four out of nine wetlands in Boracay
Island remain due to illegal encroachment of
structures;
due to storms, extraction of sand along the beach
to construct properties and structures along the
foreshore, and discharge of waste water near the
shore, causing degradation of coral reefs and
seagrass meadows;
j. Direct discharge of waste water near the shore
has resulted m frequent algal bloom and coral
deterioration; and
k. The continuous rise of tourist arrivals, the
insufficient sewer and waste management
system, and environmental violations of
establishments aggravate the environmental
degradation and destroy the ecological balance
of the Island of Boracay, resulting in major
damage to property and natural resources, as
well as the disruption of the normal way of life
of the people therein.
After due consideration of the above, the President, upon
the NDRRMC's recommendation, declared a State of
Calamity in the Island of Boracay and ordered its closure
as a tourist destination for a period of six months.
Petitioners take issue with the reasonableness of the
measures taken and seek to take the President and the
implementing agencies to task on this account. Arriving
at a conclusion regarding the propriety and
reasonableness of the above measures, however, will
necessarily require examining the factual circumstances
which formed the premise for Proclamation No. 475's
issuance.
Permit me to illustrate, using some of Proclamation No.
475's factual considerations.
On the high concentration of fecal coliform in the water:
To prove unreasonableness, petitioners may present
evidence to prove that closure, if at all, for a shorter
period of time (less than six months) is needed for the
water coliform level to return to acceptable standards.
Evidence may also be presented to Show that closure of
the island as a tourist destination is not even necessary to
address the insufficiency of sewer lines and illegal
discharge of untreated waste water into the beach.
On the non-connection of the commercial establishments
and residences to the island's sewerage
infrastructure: To prove unreasonableness, petitioners
may present evidence to show that closure of the island
is not even necessary to connect all establishments to the
existing sewerage infrastructure. Even assuming that
some closure is necessary, petitioners may present
evidence to show that connection may be done on a one-
barangay-at-a-time basis (instead of simultaneously
closing off all three barangays), and for a period shorter
than six months.
On the establishments' non-compliance with the
Philippine Clean Water Act: To prove unreasonableness,
109
petitioners may present evidence that the simple issuance
of notices of violation would be sufficient to compel
establishments to comply with the requirements of the
Act.
On the degradation of the coral reefs and coral cover in
the island because of dirty water: To prove
unreasonableness, petitioners may present evidence to
show that the local government is unable to meet the
waste generation rate in the island; that there is no
rational relation between the environmental issues (such
as the destruction of the natural habitats of the various
animals, existence of illegal encroachments, beach
erosion, and other conditions existing in the island) and
the purported closure of the island to tourists for six
months.
The foregoing, however, involve questions of fact which
cannot be entertained by this Court. Questions of fact
indispensable to the disposition of a case, as in this case,
are cognizable by the trial courts; petitioners should thus
have filed the petition before them. Failure to do so, in
fact, is sufficient to warrant the Court's dismissal of the
case.64
For similar reasons, I find that the Court should also
decline to resolve the fourth issue raised by petitioners,
that is, whether Proclamation No. 475 violates the
principle of local autonomy insofar as it orders local
government units to implement the closure. Similar with
the ponencia's finding, I find that, contrary to petitioners'
arguments, the text of RA 10121 actually recognizes and
even empowers the local government unit in disaster risk
reduction and management.65 I also hasten to add that
whether or not Proclamation No. 475 did, in fact, cause
an actual intrusion into an affected local government
unit's powers is still largely a question of fact. In fact,
even assuming that petitioners are able to show such
intrusion, again it seems to me that their issue against
such would involve a question into the reasonableness of
the same under the circumstances. This issue, as already
shown, still involves the resolution of underlying issues
of fact. For example, petitioners would have to present
evidence to show, among others, that the local
government unit concerned had recommended a less
drastic course of action to address the situation than
those taken under the Proclamation, and that this
recommendation was not considered and/or actually
overruled by the President and/or NDRRMC.
Petitioners cite White Light Corporation v. City of
Manila, 66 Lucena Grand Central Terminal, Inc. v. JAC
Liner, lnc.,67 and Metropolitan Manila Development
Authority v. Viron Tramportation, Co, Inc. 68 to
demonstrate how this Court has stricken down measures
which have been shown to be unreasonable and/or not
the least restrictive means to pursue a particular
government interest. To my mind, however, none of the
foregoing cases are useful to further petitioners' cause.
Rather than justify direct resort pursuant to this Court's
original jurisdiction over certain cases, the foregoing
cases all the more highlight the necessity of following
the hierarchy of courts.
In White Light Corporation, the validity of Manila City
Ordinance No. 7774, entitled "An Ordinance Prohibiting
Short-Time Admission, Short-Time Admission Rates,
and Wash-Up Rate Schemes in Hotels, Motels, Inns,
Lodging Houses, Pension Houses, and Similar
Establishments in the City of Manila," was challenged
on the ground that it violated sacred constitutional rights
to liberty, due process, and equal protection of law.
In Lucena Grand Central Terminal, Inc., the
constitutionality of City Ordinance Nos .. 1631 and
1778-which granted a franchise to petitioner and
regulated entrance into the city, respectively-was
challenged on the ground that they constituted an invalid
exercise of police power, an undue taking of private
property, and a violation of the constitutional prohibition
against monopolies.
In Metropolitan Manila Development Authority
(MMDA), petitioners therein questioned the MMDA 's
authority to order the closure of provincial bus terminals
along Epifanio de los Santos A venue and major
thoroughfares of Metro Manila.
It appears to escape petitioners' notice that while the
above cases did involve constitutional challenges, none
involved a direct recourse to this Court.1âшphi1 The
challenges were initially filed before the RTC, who had
the first opportunity to evaluate and resolve the
same, after the parties were able to thresh out the factual
issues, enter into stipulations, or agree on the conduct of
proceedings. By so doing, by the time the cases reached
this Court, only questions of law remained to be
settled.69 This, to my mind, results in a more judicious
use of the Court's limited time and resources. A strict
observance of the rule on hierarchy of courts would save
the Court from having to resolve factual questions
(which, in the first place, it is ill-equipped to do, much
less in the first instance) and enable it to focus on the
more fundamental tasks assigned to it under the
Constitution.
C
It is beyond dispute that the rights to travel and to due
process of law are fundamental. 70 This is significant
because, traditionally, liberty interests are protected only
against arbitrary government interference, that is, a claim
to a liberty interest may fail upon a showing by the
government of a rational basis to believe that its
interference advances a legitimate legislative
objective. 71 Where, however, a liberty interest has been
accorded an "elevated" fundamental right status, the
government is subject to a higher burden of proof to
justify intrusions into these interests, namely, the
requirements of strict scrutiny in equal protection
cases 72 and that of compelling state interest in due
process cases. 73
In his Concurring Opinion in Estrada v.
Sandiganbayan,74 Justice Vicente Mendoza wrote:
Petitioner cites the dictum in Ople v. Torres that "when
the integrity of a fundamental right is at stake, this Court
will give the challenged law, administrative order, rule
or regulation stricter scrutiny" and that "It will not do for
authorities to invoke the presumption of regularity in the
performance of official duties." As will presently be
110
shown, "strict scrutiny," as used in that decision, is not
the same thing as the "strict scrutiny" urged by
petitioner. Much less did this Court rule that because
of the need to give "stricter scrutiny" to laws
abridging fundamental freedoms, it will not give such
laws the presumption of validity. 75
Similarly, mere invocation of a fundamental right, or an
alleged restriction thereof, would not operate to excuse a
pleader from proving his case. Lest petitioners forget,
Proclamation No. 475, issued by the President pursuant
to his power of subordinate legislation under RA 10121,
enjoys the presumption of constitutionality and legality.
To overcome this, facts establishing invalidity must be
proven through the presentation of evidence. In Ermita-
Malate Hotel and Motel Operators Association, Inc. v.
City Mayor of Manila,76 citing O'Gorman & Young v.
Hartford Fire Insurance Co.,77 this Court stressed:
It admits of no doubt therefore that there being a
presumption of validity, the necessity for evidence to
rebut it is unavoidable, unless the statute or ordinance
is void on its [face,] which is not the case here. The
principle has been nowhere better expressed than in the
leading case of O'Gorman & Young v. Hartford Fire
Insurance Co., where the American Supreme Court
through Justice Brandeis tersely and succinctly summed
up the matter thus:
The statute here questioned deals with a subject clearly
within the scope of the police power. We are asked to
declare it void on the ground that the [specific] method
of regulation prescribed is unreasonable and hence
deprives the plaintiff of due process of law. As
underlying questions of fact may condition the
constitutionality of legislation of this character, the
presumption of constitutionality must prevail in
the .absence of some factual foundation of record for
overthrowing the statute.
No such factual foundation being laid in the present
case, the lower court deciding the matter on the
pleadings and the stipulation of [facts], the
presumption of validity must prevail and the
judgment against the ordinance set aside. 78
Thus, and until it is set aside with finality in an
appropriate case by a competent court,79 Proclamation
No. 475 has the force and effect of law and must be
enforced accordingly. The burden of proving its
unconstitutionality rests on the party assailing the
governmental regulations and
administrative . 80 issuances.
More importantly, the doctrine of hierarchy of courts
requires that factual questions first be submitted to trial
courts who are more properly equipped to receive
evidence on, and ultimately resolve, issues of fact.
Where, as in' this case, the resolution of the issue on
constitutionality requires the determination and
evaluation of extant factual circumstances, this Court
should decline to exercise its original jurisdiction and,
instead, reserve judgment until such time that the
question is properly brought before it on appeal.
For all the foregoing reasons, I vote to DISMISS the
petition.
DISSENTING OPINION
CAGUIOA, J.:
"As one great furnace flamed, yet from those flames
No light, but rather darkness visible. "1
On April 26, 2018, President Rodrigo R. Duterte issued
Proclamation No. 4752 (Proclamation 475), declaring a
state of calamity in the island of Boracay and ordering
its temporary closure for a maximum of six months.
Petitioners Mark Anthony Zabal (Zabal) and Thiting
Estoso Jacosalem (Jacosalem), residents and workers in
Boracay, filed the present Petition to assail the
temporary closure of the island. They are joined herein
by petitioner Odon Bandiola (Bandiola), a regular visitor
of Boracay for business and pleasure.
Together, petitioners claim that Proclamation 475 is
unconstitutional as it constitutes an invalid exercise of
legislative power which places undue restrictions on
their constitutional rights to travel and due process.
The ponencia denies the Petition, and affirms the
validity of Proclamation 475, viewing it as an executive
measure which does not pose an actual impairment on
the right to travel and due process. 3Moreover,
the ponencia is of the view that even if Proclamation 475
were to be construed as restrictive of these fundamental
rights, its issuance remains justified as a reasonable
exercise of police power occasioned by the pressing state
of Boracay island.4
The judicial confirmation of Proclamation 475's
purported validity comes after Boracay's re-opening. The
temporary closure has come to an end; its decreed
rehabilitation now complete. It appears that the
proverbial ship has now sailed, as "paradise" appears to
have been restored. Its restoration, however, has been
forged at great expense - the indiscriminate impairment
of fundamental rights.
I cannot, in conscience, give my imprimatur to yet
another constitutional shortcut. In a democratic state
governed by the rule of law, fundamental rights cannot
be traded in exchange for the promise of paradise.
Without question, under the rule of law, the end does
not, and can never ever, justify the means.
I register my dissent not because I refuse to acknowledge
the serious problems that Boracay has faced.1âшphi1 On
the contrary, I recognize that there was a problem; a
disaster that, in fact, needed action. The necessity for
action did not, however, justify the measures which the
Executive chose to take.
Our country's form of government - democratic,
republican, and presidential - characterized by
separation, coordination, and the interdependence of its
branches, has long been criticized for having
burdensome processes that slow down program
111
execution, particularly, in the realm of disaster response.
However, as long as this form of government is in place,
and so long as our Constitution subscribes to the ideals
of separation of powers, no shortcuts of any kind may or
should be allowed. I find Proclamation 475
unconstitutional. It finds absolutely no basis in law, and
unduly permits the consequent impairment of the rights
to travel and due process by executive fiat.
Thus, I am impelled to dissent upon the insistence that
the Constitution must be, at all times, respected. As the
bedrock of our civil society, the Constitution deserves no
less.
The constitutional right to travel
The right to travel is a chief element of the constitutional
guarantee of liberty which was first introduced by the
Congress of the United States to the Philippines during
the early days of the American regime. 5
In Samahan ng mga Progresibong Kabataan (SPARK) v.
Quezon City6 (Spark), the Court held that the right to
travel refers to "the right to move freely from the
Philippines to other countries or within the Philippines"
and covers, among others, "the power of
locomotion". 7 In the simplest of terms, it is the freedom
to move where one chooses to go.
As a fundamental constitutional right, the protection
afforded by the right to travel inures to every citizen.
The provision granting such right is self-executing;
its exercise is not contingent upon further legislation
governing its enforcement. 8
The same does not hold true, however, with respect to
the right's impairment.
Section 6, Article III of the
Constitution is clear - the right to
travel may only be restricted by law
The impairment of the right to travel, while permissible,
is subject to the strict requirements set forth under
Section 6, Article III of the Constitution, thus:
Section 6. The liberty of abode and of changing the same
within the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall the
right to travel be impaired except in the interest of
national security, public safety, or public health, as
may be provided by law. (Emphasis supplied)
The import of the provision is crystal clear - the right to
travel may only be impaired in the interest of national
security, public safety or public health, on the basis of a
law explicitly providing for the impairment.
Expounding on these parameters, the Court, in Genuino
v. De Lima9 (Genuino), unequivocally held:
Clearly, under the provision, there are only three
considerations that may permit a restriction on the right
to travel: national security, public safety or public
health. As a further requirement, there must be an
explicit provision of statutory law or the Rules of
Court providing for the impairment. The
requirement for a legislative enactment was
purposely added to prevent inordinate restraints on
the person's right to travel by administrative officials
who may be tempted to wield authority under the
guise of national security, public safety or public
health. This is in keeping with the principle that ours is
a government of laws and not of men and also with the
canon that provisions of law limiting the enjoyment of
liberty should be construed against the government and
in favor of the individual.
The necessity of a law before a curtailment in the
freedom of movement may be permitted is apparent in
the deliberations of the members of the Constitutional
Commission. In particular, Fr. Joaquin Bernas, in his
sponsorship speech, stated thus:
On Section 5, in the explanation on page 6 of the
annotated provisions, it says that the phrase "and
changing the same" is taken from the 1935 version; that
is, changing the abode. The addition of the phrase
WITHIN THE LIMITS PRESCRIBED BY LAW
ensures that, whether the rights be impaired on order of a
court or without the order of a court, the impairment
must be in accordance with the prescriptions of law; that
is, it is not left to the discretion of any public
officer. 10 (Emphasis and underscoring supplied)
The requirement of a law authorizing the curtailment of
the right to travel is, to repeat, crystal clear - any
restriction imposed upon such right in the absence of the
law, whether through a statute enacted through the
legislative process, or provided in the Constitution
itself, 11 necessarily renders the restriction null and void.
Proclamation 475 poses an actual
restriction on the right to travel
The dismissal of the Petition is primarily grounded on
the premise that any effect which Proclamation 4 7 5
may have on the right to travel is "merely corollary to
the closure of Boracay," and as such, a necessary
incident of the island's rehabilitation. 12 This premise
gives rise to the conclusion that Proclamation 475 need
not comply with the requirements set forth under Section
6, Article III, as its effect on the right to travel is only
indirect and merely incidental.
I disagree.
The requirements under the Constitution are spelled out
in clear and absolute terms - neither shall the right to
travel be impaired except in the interest of national
security, public safety, or public health, as may be
provided by law. The provision does not distinguish
between measures that directly restrict the right to travel
and those which do so indirectly, in the furtherance of
another State purpose. Ubi lex non distinguit, nee nos
distinguere debemus. This interpretation is grounded on
the text of the Constitution and finds basis in case law
both here and in the United States.
112
In Shapiro v. Thomspon 13 (Shapiro), the Supreme Court
of the United States (SCOTUS) was confronted with a
constitutional challenge against certain statutory
provisions enacted in Connecticut, Pennsylvania and the
District of Columbia (D.C). The assailed provisions
denied welfare assistance to applicants who have not
resided in the cities' respective jurisdictions for at least a
year immediately preceding the filing of their
applications. These provisions, according to the
appellants therein, had been crafted as "a protective
device to preserve the fiscal integrity of state public
assistance programs." 14
Resolving the case, SCOTUS ruled that the assailed
provisions violate the constitutional guarantee of
interstate movement, among others, insofar as they
create classifications which effectively penalize the
exercise of the right to travel, 15 thus:
We do not doubt that the one-year waiting period device
is well suited to discourage the influx of poor families in
need of assistance. An indigent who desires to migrate,
resettle, find a new job, and start a new life will
doubtless hesitate if he knows that he must risk making
the move without the possibility of falling back on state
welfare assistance during his first year of residence,
when his need may be most acute. But the purpose of
inhibiting migration by needy persons into the State is
constitutionally impermissible.
This Court long ago recognized that the nature of our
Federal Union and our constitutional concepts of
personal liberty unite to require that all citizens be free
to travel throughout the length and breadth of our land
uninhibited by statutes, rules, or regulations which
unreasonably burden or restrict this movement. x x x
xxxx
Thus, the purpose of deterring the in-migration of
indigents cannot serve as justification for the
classification created by the one-year waiting period,
since that purpose is constitutionally impermissible. If a
law has "no other purpose ... than to chill the assertion of
constitutional rights by penalizing those who choose to
exercise them, then it [is] patently
unconstitutional." 16 (Citations omitted)
Following Shapiro, SCOTUS handed down its decision
in Attorney General of New York v. Soto-Lopez 17 (Soto-
Lopez), holding that "[a] state law implicates the right to
travel when it actually deters such travel, x x x [whether]
impeding travel is its primary objective, x x x or when it
uses 'any classification which serves to penalize the
exercise of that right. "' 18 Soto-Lopez involved a
challenge against the employment preference afforded
by the New York Constitution and Civil Service Law to
New York resident-veterans honorably discharged from
the Armed Forces. 19
More recently, in State of Ohio v. Burnett20 (Burnett), the
Supreme Court of Ohio was confronted with an action
questioning the validity of a Cincinnati ordinance which
established "drug-exclusion zones" within the city for
the purpose of controlling drug-related activity in the
area. These zones were identified as those where the
number of drug-related arrests were significantly higher
than other similarly situated and sized areas of the city.
The establishment of these zones had the incidental
effect of prohibiting persons from entering the zones
within a specified "exclusion period" upon the threat of
arrest for criminal trespass. Thus, the Cincinnati
ordinance was questioned for being violative of the right
to travel, among others.
While conceding that the Cincinatti ordinance had
been grounded on a compelling state interest, the
Ohio Supreme Court nevertheless ruled that it had
the incidental effect of "unconstitutionally
burdening" the right to travel. 21 Hence, the Supreme
Court of Ohio held:
Cincinnati asserts that the purposes of Chapter 755 are
"restoring the quality of life and protecting the health,
safety, and welfare of citizens using the public ways" in
drug-exclusion zones and "allowing the public to use and
enjoy the facilities in such areas without interference
arising from illegal drug abuse and/or illegal drug abuse
related crimes." We agree with the city that these
asserted interests are compelling. The destruction of
some neighborhoods by illegal drug activity has created
a crisis of national magnitude, and governments are
justified in attacking the problem aggressively. When
legislation addressing the drug problem infringes
certain fundamental rights, however, more than a
compelling interest is needed to survive constitutional
scrutiny. The statute must also be narrowly tailored
to meet the compelling interest. It is our opinion that
while Chapter 755 is justified by a compelling
interest, it fails constitutional analysis because the
ordinance is not narrowly tailored to restrict only
those interests associated with illegal drug activity,
but also restricts a substantial amount of innocent
conduct. (Citations omitted; emphasis supplied)
Though these cases are not binding in this jurisdiction,
the Court has regarded American case law as a rich
source of persuasive jurisprudence22 that may guide the
bench.
That said, the Court need not look beyond its own
jurisprudence to find the answers that it seeks.
In the recent case of Spark, the Court characterized
curfew ordinances as restrictive of minors' right to travel,
albeit imposed primarily for the interest of public safety,
particularly the promotion of juvenile safety and
prevention of juvenile crime.23 To stress anew, the Court
therein referred to the right to travel as "the right
to move freely from the Philippines to other countries
or within the Philippines," and a "right embraced
within the general concept of liberty" which, in turn,
includes "the power of locomotion and the right of
citizens to be free to use their faculties in lawful ways
and to live and work where they desire or where they
can best pursue the ends of life."24
The afore-cited cases tell us that measures which impede
the right to travel in furtherance of other state interests,
whether impermissible (as in Shapiro) or even
permissible (as in Burnett and Spark), are treated in the
same manner as those which directly restrict the right.
113
The foregoing cases, taken together with the text of the
Constitution, unequivocally negate the assertion that
Proclamation 4 7 5 does not cause a substantive
impairment on the right to travel so as to exempt it from
the requirements set forth in Section 6, Article III.
In this regard, I disagree with the contention that the
effect of the closure of Boracay on a person's ability to
travel is merely incidental in nature; hence, conceptually
remote from the right's proper sense. To my mind, that
an assailed government act only indirectly or
incidentally affects a constitutional right is
inconsequential as any impairment of constitutionally-
protected rights must strictly comply with the mandate
of the Constitution. As held in Genuino:
The DOJ would however insist that the resulting
infringement of liberty is merely incidental, together
with the consequent inconvenience, hardship or loss to
the person being subjected to the restriction and that the
ultimate objective is to preserve the investigative powers
of the DOJ and public order. It posits that the issuance
ensures the presence within the country of the
respondents during the preliminary investigation. Be
that as it may, no objective will ever suffice to
legitimize desecration of a fundamental right. To
relegate the intrusion as negligible in view of the
supposed gains is to undermine the inviolable nature
of the protection that the Constitution
affords. 25 (Emphasis supplied)
As well, Proclamation 475 cannot be likened to
government regulations that amount to the "cordoning-
off' of areas ravaged by calamities, where access by
people thereto may be prohibited pursuant to public
safety considerations. This is because local government
units are already explicitly authorized under the Local
Government Code to close down roads for such purpose,
to wit:
Section 21. Closure and Opening of Roads. - (a) A local
government unit may, pursuant to an ordinance,
permanently or temporarily close or open any local
road, alley, park, or square falling within its
jurisdiction: Provided, however, That in case of
permanent closure, such ordinance must be approved by
at least two-thirds (2/3) of all the members of the
sanggunian, and when necessary, an adequate substitute
for the public facility that is subject to closure is
provided.
xx xx
(c) Any national or local road, alley, park, or square
may be temporarily closed during an actual
emergency, or fiesta celebrations, public rallies,
agricultural or industrial fairs, or an undertaking of
public works and highways, telecommunications, and
waterworks projects, the duration of which shall be
specified by the local chief executive concerned in a
written order: x x x (Emphasis supplied)
Thus, I submit that the present case cannot be likened to
a "cordoning-off' situation, considering that the latter
actually complies with Section 6, Article III, i.e., that the
restriction be grounded on either national security,
public safety or public health, and that the restriction be
provided by law. Accordingly, I maintain my position
that the resolution of this case hinges on the right to
travel.
There is no law which grants the
President any form of police power so
as to authorize the impairment of the
right to travel during a state of
calamity
The ponencia alternatively holds that the issuance of
Proclamation 4 75 is valid as a police power measure. It
cites Republic Act No. (RA) 10121 and RA 92 7 5 as
statutory bases for the validity of the proclamation.
The ponencia, as well as respondents, rely on the
provisions of RA 10121 which empower the National
Disaster Risk Reduction and Management Council
(NDRRMC) to recommend to the President the
declaration of state of calamity. In particular, they cite
the following provisions:
SEC. 6. Powers and Functions of the NDRRMC. - The
National Council, being empowered with policy-making,
coordination, integration, supervision, monitoring and
evaluation functions, shall have the following
responsibilities:
xxxx
(c) Advise the President on the status of disaster
preparedness, prevention, mitigation, response and
rehabilitation operations being undertaken by the
government, CSOs, private sector, and volunteers;
recommend to the President the declaration of a state of
calamity in areas extensively damaged; and submit
proposals to restore normalcy in the affected areas, to
include calamity fund allocation;
xxx
SEC. 16. Declaration of State of Calamity. - The
National Council shall recommend to the President of
the Philippines the declaration of a cluster of barangays,
municipalities, cities, provinces, and regions under a
state of calamity, and the lifting thereof, based on the
criteria set by the National Council. x x x
From the foregoing provisions, the ponencia argues that
"the statutes from which [Proclamation 475] draws
authority and the constitutional provisions which serve
as its framework are primarily concerned with the
environment and health, safety, and well-being of the
people, the promotion and securing of which are clearly
legitimate objectives of governmental efforts and
regulations."26 The ponencia then concludes that
Proclamation 475 is a valid police power measure.
I differ.
First, the afore-cited provisions of RA 10121 only
empower the NDRRMC to recommend to the President
the declaration of a "state of calamity" and submit to him
"proposals to restore normalcy in the affected areas." In
114
turn, the actions or programs to be undertaken by the
President during a state of calamity, to be
valid, must still be within the powers granted to him
under the Constitution and other laws.
To be sure, there is absolutely nothing in RA 10121 from
which it could reasonably be inferred that the law
empowers the NDRRMC or the President to close an
entire island. In fact, RA 10121 does not even refer to
the President, except in connection with the declaration
of a state of calamity in Section 16, quoted above.
Parenthetically, it should be emphasized that, under RA
10121, a "state of calamity" only authorizes the
President to impose the following remedial measures:
(a) Imposition of price ceiling on basic necessities and
prime commodities by the President upon the
recommendation of the implementing agency as
provided for under Republic Act No. 7581, otherwise
known as the "Price Act'', or the National Price
Coordinating Council;
(b) Monitoring, prevention and control by the Local
Price Coordination Council of overpricing/profiteering
and hoarding of prime commodities, medicines and
petroleum products;
(c) Programming/reprogramming of funds for the repair
and safety upgrading of public infrastructures and
facilities; and
(d) Granting of no-interest loans by government
financing or lending institutions to the most affected
section of the population through their cooperatives or
people's organizations.27
The very narrow scope of the President's powers during
a state of calamity as declared in accordance with RA
10121 becomes more apparent when placed in contrast
with those granted by the statute in favor of the
NDRRMC.
The powers and prerogatives of the NDRRMC are
detailed under RA 10121 as follows:
SEC. 6. Powers and Functions of the NDRRMC. - The
National Council, being empowered with policy-making,
coordination, integration, supervision, monitoring and
evaluation functions, shall have the following
responsibilities:
(a) Develop a NDRRMF which shall provide for a
comprehensive, all-hazards, multi-sectoral, inter-agency
and community-based approach to disaster risk reduction
and management. The Framework shall serve as the
principal guide to disaster risk reduction and
management efforts in the country and shall be reviewed
on a five (5)-year interval, or as may be deemed
necessary, in order to ensure its relevance to the times;
(b) Ensure that the NDRRMP is consistent with the
NDRRMF;
(c) Advise the President on the status of disaster
preparedness, prevention, mitigation, response and
rehabilitation operations being undertaken by the
government, CSOs, private sector, and volunteers;
recommend to the President the declaration of a state of
calamity in areas extensively damaged; and submit
proposals to restore normalcy in the affected areas, to
include calamity fund allocation;
(d) Ensure a multi-stakeholder participation in the
development, updating, and sharing of a Disaster Risk
Reduction and Management Information System and
Geographic Information System-based national risk map
as policy, planning and decision-making tools;
(e) Establish a national early warning and emergency
alert system to provide accurate and timely advice to
national or local emergency response organizations and
to the general public through diverse mass media to
include digital and analog broadcast, cable, satellite
television and radio, wireless communications, and
landline communications;
(f) Develop appropriate risk transfer mechanisms that
shall guarantee social and economic protection and
increase resiliency in the face of disaster;
(g) Monitor the development and enforcement by
agencies and organizations of the various laws,
guidelines, codes or technical standards required by this
Act;
(h) Manage and mobilize resources for disaster risk
reduction and management including the National
Disaster Risk Reduction and Management Fund;
(i) Monitor and provide the necessary guidelines and
procedures on the Local Disaster Risk Reduction and
Management Fund (LDRRMF) releases as well as
utilization, accounting and auditing thereof;
G) Develop assessment tools on the existing and
potential hazards and risks brought about by climate
change to vulnerable areas and ecosystems in
coordination with the Climate Change Commission;
(k) Develop vertical and horizontal coordination
mechanisms for a more coherent implementation of
disaster risk reduction and management policies and
programs by sectoral agencies and LGUs;
(1) Formulate a national institutional capability building
program for disaster risk reduction and management to
address the specific weaknesses of various government
agencies and LGUs, based on the results of a biennial
baseline assessment and studies;
(m) Formulate, harmonize, and translate into policies a
national agenda for research and technology
development on disaster risk reduction and management;
115
(n) In coordination with the Climate Change
Commission, formulate and implement a framework for
climate change adaptation and disaster risk reduction and
management from which all policies, programs, and
projects shall be based;
(o) Constitute a technical management group composed
of representatives of the abovementioned departments,
offices, and organizations, that shall coordinate and meet
as often as necessary to effectively manage and sustain
national efforts on disaster risk reduction and
management;
(p) Task the OCD to conduct periodic assessment and
performance monitoring of the member-agencies of the
NDRRMC, and the Regional Disaster Risk Reduction
and Management Councils (RDRRMCs), as defined in
the NDRRMP; and
(q) Coordinate or oversee the implementation of the
country's obligations with disaster management treaties
to which it is a party and see to it that the country's
disaster management treaty obligations be incorporated
in its disaster risk reduction and management
frameworks, policies, plans, programs and projects.
xxxx
Section 15. Coordination During Emergencies. - The
LDRRMCs shall take the lead in preparing for,
responding to, and recovering from the effects of any
disaster based on the following criteria:
(a) The BDC, if a barangay is affected;
(b) The city/municipal DRRMCs, if two (2) or more
barangays are affected;
(c) The provincial DRRMC, if two (2) or more
cities/municipalities are affected;
(d) The regional DRRMC, if two (2) or more provinces
are affected; and
(e) The NDRRMC, if two (2) or more regions are
affected.
RA 10121 likewise established Local Disaster Risk
Reduction and Management Councils/Offices
(LDRRMCs/LDRRMOs) in every province, city, and
municipality in the country, which are "responsible for
setting the direction, development, implementation and
coordination of disaster risk management programs
within their [respective] territorial
jurisdiction[s]."28 Specifically, LDRRMOs are
empowered to, among others, (i) identify, assess, and
manage the hazards, vulnerabilities and risks that may
occur in their locality;29 (ii) identify and implement cost-
effective risk reduction measures/strategies; 30 and (iii)
respond to and manage the adverse effects of
emergencies and carry out recovery activities in the
affected area. 31
Notably, majority of those who compose the LDRRMCs
are officials of local government units  32 (LGUs) over
whom the President only exercises supervision,
instead of control.33 Restated, it is very clear that the
intent of the law - in directing the LDRRMCs to "take
the lead", and in declaring that the NDRRMC would
only take over "if two (2) or more regions are affected" -
is to favor local autonomy in disaster preparedness and
disaster response.
From the foregoing, there can be no serious doubt
that the six-month closure of Boracay, as ordered by
Proclamation 475, cannot be anchored on RA 10121.
To conclude as such requires an Olympic leap in logic
which is totally unwarranted, considering that RA
10121: (i) gave preference to local actors, not national
ones, as regards disaster response and (ii) only granted
the President authority to implement limited remedial
measures following a declaration of a "state of
calamity".
The case of Review Center Association of the
Philippines v. Executive Secretary Ermita34 is on point.
Therein, the President issued an executive order
authorizing the Commission on Higher Education
(CHED) to supervise review centers and similar
establishments. The petitioner therein sought to declare
the executive order unconstitutional on the ground that
CHED had no supervisorial authority over them and that
the executive order constitutes a usurpation of legislative
power by the President. Ruling in favor of the petitioner,
the Court held:
The scopes of EO 566 and the RIRR clearly expand the
CHED's coverage under RA 7722. The CHED's
coverage under RA 7722 is limited to public and private
institutions of higher education and degree-granting
programs in all public and private post-secondary
educational institutions. EO 566 directed the CHED to
formulate a framework for the regulation of review
centers and similar entities.
The definition of a review center under EO 566 shows
that it refers to one which offers "a program or course of
study that is intended to refresh and enhance the
knowledge or competencies and skills of reviewees
obtained in the formal school setting in preparation for
the licensure examinations" given by the PRC. It also
covers the operation or conduct of review classes or
courses provided by individuals whether for a fee or not
in preparation for the licensure examinations given by
the PRC.
xxxx
The President has no inherent or delegated legislative
power to amend the functions of the CHED under
RA 7722. Legislative power is the authority to make
laws and to alter or repeal them, and this power is
vested with the Congress under Section 1, Article VI of
the 1987 Constitution which states:
Section 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the
extent reserved to the people by the provision on
initiative and referendum.
116
xxx
Police power to prescribe regulations to promote the
health, morals, education, good order or safety, and the
general welfare of the people flows from the recognition
that salus populi est suprema lex - the welfare of the
people is the supreme law. Police power primarily
rests with the legislature although it may be exercised
by the President and administrative boards by virtue
of a valid delegation. Here, no delegation of police
power exists under RA 7722 authorizing the
President to regulate the operations of non-degree
granting review centers. 35 (Emphasis and underscoring
supplied; emphasis in the original omitted)
Second, police power is an inherent attribute of
sovereignty which has been defined as the power to
"make, ordain, and establish all manner of wholesome
and reasonable laws, statutes and ordinances, either with
penalties or without, not repugnant to the Constitution,
as they shall judge to be for the good and welfare of the
commonwealth, and for the subjects of the same."36 Our
Constitutional design, however, lodges police power
primarily on the Legislature.
That police power is lodged primarily in the Legislature
does not appear to be in dispute. This is apparent from
the ponencia itself, which defines police power as the
"state authority to enact legislation that may interfere
with personal liberty or property in order to promote the
general welfare."37
Clearly, police power cannot be exercised by any group
or body of individuals not possessing legislative power;
its exercise, therefore, is contingent upon a valid
delegation.38
In fact, a look at the powers at the President's disposal in
times of calamity leads to the inevitable conclusion
that Proclamation 475 does not find basis in any law.
Under the Constitution, the President, on whom
Executive power is vested by Section 1, Article VII of
the Constitution, may, in times of calamity, exercise:
(1) calling out powers, an ordinary police action39 to
call on the armed forces to prevent or suppress three
specific instances - lawless violence, invasion, or
rebellion;40
(2) emergency powers, which, even then, may only be
exercised in times of war or after Congress considers the
calamity as a "national emergency" and passes a
law authorizing the President to exercise "powers
necessary and proper to carry out a declared national
policy";41 and
(3) taking over powers, which include taking over of, or
directing the operation of any privately-owned public
utility or business affected with public interest; 42 and the
power to establish and operate vital industries in the
interest of national welfare or defense, and the power to
transfer to public ownership utilities and other private
enterprises to be operated by the Government upon
payment of just compensation. 43
Under RA 7160 or the Local Government Code of 1991,
the President may also exercise general supervision over
LGUs,44 and augment the basic services and facilities
assigned to an LGU when the need arises, that is, when
such services or facilities are not made available or, if
made available, are inadequate to meet the requirements
of its inhabitants.45
Further, in cases of epidemics, pestilence, and other
widespread public health dangers, the Secretary of
Health may, upon the direction of the President and in
consultation with the LGU concerned, temporarily
assume direct supervision and control over health
operations in any LGU for the duration of the
emergency, but in no case exceeding a cumulative period
of six (6) months. 46
Finally, in areas declared by the President to be in a state
of calamity, the President may enact a supplemental
budget by way of budgetary realignment, to set aside
appropriations for the purchase of supplies and
materials, or for the payment of services which are
exceptionally urgent or absolutely indispensable to
prevent imminent danger to, or loss of life or property, in
the jurisdiction of an LGU concerned.47
From the foregoing, it is thus clear that the President has
no power to close an entire island, even in a calamitous
situation, and despite the blanket invocation of the
State's police power.
The authority to restrict the right to
travel cannot be implied from the
executive department's power, under
RA 9275, to "take measures necessary
to upgrade the water quality"
The ponencia also views RA 927548 as another statutory
basis for the issuance of Proclamation 475.49 This
position is anchored on Section 6 of said statute which
reads:
SEC. 6. Management of Non-attainment Areas. - The
[DENR] shall designate water bodies, or portions
thereof, where specific pollutants from either natural or
man-made source have already exceeded water quality
guidelines as non-attainment areas for the exceeded
pollutant. x x x
The [DENR] shall, in coordination with [National Water
Resource Board], Department of Health (DOH),
Department of Agriculture (DA), governing board and
other concerned government agencies and private
sectors shall take measures as may be necessary to
upgrade the quality of such water in non-attainment
areas to meet the standards under which it has been
classified. (Emphasis and underscoring supplied)
Again, I disagree.
While the language used by RA 9275 was general, such
that it may include any measure to upgrade the quality of
water in a particular area, the provision in question is
still bound by the limitations imposed by the
Constitution and other applicable laws.
117
Specifically, RA 9275 itself provides that "[t]he LGUs
shall prepare and implement contingency plans and
other measures including relocation, whenever
necessary, for the protection of health and welfare of the
residents within potentially affected areas."50 It is
apparent, therefore, that it is again the LGU s who are
tasked with the implementation of contingency plans
when measures need to be taken for the protection of the
health and welfare of the residents in the area concerned.
The DENR's, and consequently the President's,
jurisdiction is limited to the adoption of measures for
the treatment of water, that is, any method, technique,
or process designed to alter the physical, chemical or
biological and radiological character or composition of
any waste or wastewater to reduce or prevent
pollution. 51
More importantly, even if the language employed by RA
9275 was as general as it could be to allow leeway for
the DENR as to the means it would undertake to clean
the water, the DENR would still inarguably be bound
by Section 6, Article III of the Constitution, which, as
discussed, requires that the curtailment of the right
to travel be done on the basis of a law.
The right to travel cannot be impaired
by a mere Presidential Proclamation
As discussed, the existence of a law - which may either
refer to the Constitution or to a statute necessarily
enacted by the Legislature - is a prerequisite for the
curtailment of the right to travel. The case of Ople v.
Torres 52 (Ople) lends guidance.
In Ople, the President sought to establish a national
computerized identification reference system, or
National ID System, through a mere administrative
order. The petitioner in the said case questioned the
legality of the administrative order on the ground that,
among others, the subject of the administrative order
should properly be contained in a law, not a mere
administrative issuance. In declaring the administrative
order unconstitutional, the Court explained at length:
Petitioner's sedulous concern for the Executive not to
trespass on the lawmaking domain of Congress is
understandable. The blurring of the demarcation line
between the power of the Legislature to make laws and
the power of the Executive to execute laws will disturb
their delicate balance of power and cannot be allowed.
Hence, the exercise by one branch of government of
power belonging to another will be given a stricter
scrutiny by this Court.
The line that delineates Legislative and Executive power
is not indistinct. Legislative power is "the authority,
under the Constitution, to make laws, and to alter and
repeal them." The Constitution, as the will of the people
in their original, sovereign and unlimited capacity, has
vested this power in the Congress of the Philippines. The
grant of legislative power to Congress is broad, general
and comprehensive. The legislative body possesses
plenary power for all purposes of civil government. Any
power, deemed to be legislative by usage and tradition,
is necessarily possessed by Congress, unless the
Constitution has lodged it elsewhere. In fine, except as
limited by the Constitution, either expressly or
impliedly, legislative power embraces all subjects and
extends to matters of general concern or common
interest.
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 the 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.
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.
Prescinding from these precepts, we hold that A.O.
No. 308 involves a subject that is not appropriate to be
covered by an administrative order. An administrative
order is:
"[Section] 3. Administrative Orders.- Acts of the
President which relate to particular aspects of
governmental operation in pursuance of his duties as
administrative head shall be promulgated in
administrative orders."
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. We reject the argument that A.O. No.
308 implements the legislative policy of the
Administrative Code of 1987. x x x
xxxx
It cannot be simplistically argued that A.O. No. 308
merely implements the Administrative Code of 1987. It
establishes for the first time a National Computerized
Identification Reference System. Such a System requires
a delicate adjustment of various contending state policies
- the primacy of national security, the extent of privacy
interest against dossier-gathering by government, the
choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-
118
important freedom of thought. As said administrative
order redefines the parameters of some basic rights
of our citizenry vis-a-vis the State as well as the line
that separates the administrative power of the
President to make rules and the legislative power of
Congress, it ought to be evident that it deals with a
subject that should be covered by law.
Nor is it correct to argue as the dissenters do that A.O.
No. 308 is not a law because it confers no right, imposes
no duty, affords no protection, and creates no
office. Under A.O. No. 308, a citizen cannot transact
business with government agencies delivering basic
services to the people without the contemplated
identification card. No citizen will refuse to get this
identification card for no one can avoid dealing with
government. It is thus clear as daylight that without the
ID, a citizen will have difficulty exercising his rights and
enjoying his privileges. Given this reality, the contention
that A.O. No. 308 gives no right and imposes no duty
cannot stand.
Again, with due respect, the dissenting opinions unduly
expand the limits of administrative legislation and
consequently erodes the plenary power of Congress to
make laws. This is contrary to the established approach
defining the traditional limits of administrative
legislation. As well stated by Fisher: "x x x Many
regulations however, hear directly on the public. It is
here that administrative legislation must be restricted
in its scope and application. Regulations are not
supposed to be a substitute for the general policy-
making that Congress enacts in the form of a public
law. Although administrative regulations are entitled to
respect, the authority to prescribe rules and regulations
is not an independent source of power to make
laws."53 (Emphasis and underscoring supplied)
In the present case, the order to close Boracay for six
months was issued in a form of a proclamation. Title 1,
Book III of Executive Order No. 292 or the Revised
Administrative Code of 1987 (Administrative Code)
enumerates the different powers of the Office of the
President. Chapter 2 of the same - which contains the
ordinance powers of the President - defines a
"proclamation" as follows:
BOOK III
Office of the President
TITLE I
Powers of the President
CHAPTER 1
Power of Control
SECTION 1. 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.
CHAPTER 2
Ordinance Power
SEC. 2. Executive Orders. - Acts of the President
providing for the rules of a general or permanent
character in implementation or execution of
constitutional or statutory powers shall be promulgated
in executive orders.
SEC. 3. Administrative Orders. - Acts of the President
which relate to particular aspects of governmental
operations in pursuance of his duties as administrative
head shall be promulgated in administrative orders.
SEC. 4. Proclamations. - Acts of the President fixing a
date or declaring a status or condition of public
moment or interest, upon the existence of which the
operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which
shall have the force of an executive order.
SEC. 5. Memorandum Orders. - Acts of the President on
matters of administrative detail or of subordinate or
temporary interest which only concern a particular
officer or office of the Government shall be embodied
in memorandum orders.
SEC. 6. Memorandum Circulars. - Acts of the President
on matters relating to internal administration, which the
President desires to bring to the attention of all or some
of the departments, agencies, bureaus or offices of the
Government, for information or compliance, shall be
embodied in memorandum circulars.
SEC. 7. General or Special Orders. - Acts and
commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the
Philippines shall be issued as general or special orders.
(Emphasis supplied)
The declaration of a state of calamity in the present case
was embodied in a "proclamation". But that is not all
that was covered by the "proclamation". Along with the
declaration of a state of calamity, Proclamation 475 also
ordered the closure of an entire island - an order which
directly impacts fundamental rights, particularly, the
right to travel and due process. Borrowing the words
of the Court in Ople, when an issuance "redefines the
parameters of some basic rights of our citizenry vis-a-
vis the State,"54 then such is a subject matter that should
be contained in a law. Such matters are beyond the
power of the President to determine, and cannot be
undertaken merely upon the authority of a proclamation.
As explained by Justice Dante O. Tinga in David v.
Macapagal-Arroyo:55
x x x The power of the President to make proclamations,
while confirmed by statutory grant, is nonetheless rooted
in an inherent power of the presidency and not expressly
subjected to constitutional limitations. But
proclamations, by their nature, are a species of issuances
of extremely limited efficacy. As defined in the
Administrative Code, proclamations are merely "acts of
the President fixing a date or declaring a status or
condition of public moment or interest upon the
existence of which the operation of a specific law or
regulation is made to depend". A proclamation, on its
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own, cannot create or suspend any constitutional or
statutory rights or obligations. There would be need
of a complementing law or regulation referred to in
the proclamation should such act indeed put into
operation any law or regulation by fixing a date or
declaring a status or condition of a public moment or
interest related to such law or regulation. And should the
proclamation allow the operationalization of such law or
regulation, all subsequent resultant acts cannot exceed or
supersede the law or regulation that was put into
effect. 56 (Emphasis supplied)
In sum, as the governmental action at hand involves the
curtailment of the constitutionally guarded right to
travel, it was thus invalid for the President to have done
so (i) without enabling legislation and (ii) in the form of
a mere proclamation.
The authority to curtail the right to
travel is neither subsumed in the
President's duty to execute laws, nor
can it be deemed inherent in the
President's power to promote the
general welfare
In the absence of statutory and Constitutional basis, it is
imperative to stress that the restriction of the right to
travel, as imposed through Proclamation 475, cannot be
justified as a necessary incident of the Executive's duty
to execute laws.
The faithful execution clause is found in Section 17,
Article VII of the Constitution. It states:
SEC. 17. The President shall have control of all the
executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed.
The foregoing clause should not be understood as a grant
of power, but rather, an obligation imposed upon the
President.57 In turn, this obligation should not be
construed in the narrow context of the particular statute
to be carried out, but, more appropriately, in conjunction
with the very document from which such obligation
emanates. Hence, speaking of the faithful execution
clause, the Court has ruled:
[The faithful execution clause] simply underscores the
rule of law and, corollarily, the cardinal principle
that the President is not above the laws but is obliged
to obey and execute them. This is precisely why the
law provides that "administrative or executive acts,
orders and regulations shall be valid only when they are
not contrary to the laws or the Constitution."58 (Emphasis
supplied)
Based on these premises, I cannot subscribe to the
position that the restriction of the right to travel imposed
as a consequence of Boracay's closure is valid simply
because it is necessary for the island's rehabilitation. The
fact that the restriction of the right to travel is
deemed necessary to achieve the avowed purpose of
Proclamation 475 does not take such restriction away
from the scope of the Constitutional requirements
under Section 6, Article III.
As well, I cannot agree with respondents' contention that
the authority to restrict the right to travel is inherent in
the exercise of the President's residual power to protect
and promote the general welfare. 59 This claim appears to
result from an analogy drawn from the Court's rulings
in Silverio v. Court of Appeals60 (Silverio) and Leave
Division, Office of the Administrative Services, Office of
the Court Administrator v. Heusdens61 (Leave Division),
which speak of the inherent powers of the judicial and
legislative departments.
A close reading of these cases reveals, however, that
respondents' claim does not find support in
either Silverio or Leave Division.
In Silverio, the petitioner therein had been charged with
a violation of the Revised Securities Act. The petitioner
assailed the order issued by the handling Regional Trial
Court (RTC) which directed: (i) the Department of
Foreign Affairs to cancel his passport; and (ii) then
Commission on Immigration to prevent him from
leaving the Philippines. 62 The petitioner further argued
that the R TC could not validly impair his right to travel
on the basis of grounds other than national security,
public safety and public health.63
Resolving the issue, the Court held that Section 6,
Article III should not be construed to limit the inherent
power of the courts to use all means necessary to carry
their orders into effect, thus:
Petitioner takes the posture, however, that while the
1987 Constitution recognizes the power of the Courts to
curtail the liberty of abode within the limits prescribed
by law, it restricts the allowable impairment of the right
to travel only on grounds of interest of national security,
public safety or public health, as compared to the
provisions on freedom of movement in the 1935 and
1973 Constitutions.
xx xx
Petitioner x x x theorizes that under the 1987
Constitution, Courts can impair the right to travel only
on the grounds of "national security, public safety, or
public health."
The submission is not well taken.
Article III, Section 6 of the 1987 Constitution should
be interpreted to mean that while the liberty of travel
may be impaired even without Court Order, the
appropriate executive officers or administrative
authorities are not armed with arbitrary discretion to
impose limitations. They can impose limits only on
the basis of "national security, public safety, or
public health" and "as may be provided by law," a
limitive phrase which did not appear in the 1973
text x x x. Apparently, the phraseology in the 1987
Constitution was a reaction to the ban on international
travel imposed under the previous regime when there
was a Travel Processing Center, which issued
certificates of eligibility to travel upon application of an
interested party x x x.
120
Article III, Section 6 of the 1987 Constitution should
by no means be construed as delimiting the inherent
power of the Courts to use all means necessary to
carry their orders into effect in criminal cases
pending before them. When by law jurisdiction is
conferred on a Court or judicial officer, all auxiliary
writs, process and other means necessary to carry it
into effect may be employed by such Court or
officer x x x.
xxxx
Petitioner is facing a criminal charge. He has posted bail
but has violated the conditions thereof by failing to
appear before the Court when required. Warrants for his
arrest have been issued. Those orders and processes
would be rendered nugatory if an accused were to be
allowed to leave or to remain, at his pleasure, outside the
territorial confines of the country. Holding an accused in
a criminal case within the reach of the Courts by
preventing his departure from the Philippines must be
considered as a valid restriction on his right to travel so
that he may be dealt with in accordance with law. The
offended party in any criminal proceeding is the People
of the Philippines. It is to their best interest that criminal
prosecutions should run their course and proceed to
finality without undue delay, with an accused holding
himself amenable at all times to Court Orders and
processes. 64 (Emphasis and underscoring supplied;
citations omitted)
In Leave Division, petitioner therein argued that the
Office of the Court Administrator (OCA) Circular No.
49-2003 (B), which requires court employees to secure a
travel authority as a requisite for foreign travel, unduly
restricts the right to travel.
Speaking of "inherent limitations on the right to travel",
the Court in Leave Division held:
Inherent limitations on the right to travel are those that
naturally emanate from the source. These are very basic
and are built-in with the power. An example of such
inherent limitation is the power of the trial courts to
prohibit persons charged with a crime to leave the
country. In such a case, permission of the court is
necessary. Another is the inherent power of the
legislative department to conduct a congressional
inquiry in aid of legislation. In the exercise of
legislative inquiry, Congress has the power to issue
a subpoena and subpoena duces tecum to a witness in
any part of the country, signed by the chairperson or
acting chairperson and the Speaker or acting
Speaker of the House; or in the case of the Senate,
signed by its Chairman or in his absence by the
Acting Chairman, and approved by the Senate
President. 65 (Emphasis supplied)
While the foregoing cases decree that the requirements
of Section 6, Article III should not be interpreted to
unduly negate the inherent powers belonging to the
judicial and legislative departments, these cases do not
purport to sanction the curtailment of the right to travel
solely on the basis of implication.
To be sure, the authority to restrict the right to
travel, while inherent in the exercise of judicial power
and in the conduct of legislative inquiry, do not stem
from mere abstraction, but rather, proceed from
specific grants of authority under the Constitution.
These grants of authority therefore satisfy the
requirement that the restriction be provided for by
law.
To recall, Section 5(5), Article VIII of the Constitution
vests unto the Court the power to promulgate rules
concerning, among others, the protection and
enforcement of constitutional rights, pleading, practice
and procedure in all courts. Pursuant to such authority,
the Court promulgated the Rules 135 of the Rules of
Court, which reads:
SEC. 6. Means to carry jurisdiction into effect. - When
by law jurisdiction is conferred on a court or judicial
officer, all auxiliary writs, processes and other means
necessary to carry it into effect may be employed by
such court or officer; and if the procedure to be followed
in the exercise of such jurisdiction is not specifically
pointed out by law or by these rules, any suitable process
or mode of proceeding may be adopted which appears
comfortable to the spirit of the said law or rules.
In this connection, the jurisdiction to exercise judicial
power and exert all means necessary to carry such
jurisdiction into effect is conferred upon the lower
courts by law, specifically, under Batas Pambansa
Bilang 129.
Similarly, the Legislature's power to promulgate rules
governing the conduct of a congressional inquiry stems
from Section 21, Article VI of the Constitution, thus:
SEC. 21. The Senate or the House of Representatives or
any of its respective committees may conduct inquiries
in aid of legislation in accordance with its duly published
rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.
In tum, the Congress' power to resort to coercive
measures in the course of legislative inquiry have been
detailed in their respective internal rules promulgated
pursuant to Section 21. 66
Plainly, there is no basis to conclude that these inherent
powers constitute exceptions to the parameters set forth
by Section 6, Article III, for the reason that the
Constitution itself provides the basis for their exercise.
Nevertheless, respondents argue, by analogy, that the
authority to restrict the right to travel is inherent in the
President's exercise of residual powers to protect general
welfare. 67 In support of this proposition, respondents
rely on Marcos v. Manglapus68 (Marcos), the relevant
portion of which reads:
x x x The power involved is the President's residual
power to protect the general welfare of the people. It is
founded on the duty of the President, as steward of the
people. To paraphrase Theodore Roosevelt, it is not only
the power of the President but also his duty to do
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anything not forbidden by the Constitution or the laws
that the needs of the nation demand.xx x
x x x The President is not only clothed with
extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of
maintaining peace and order and ensuring domestic
tranquillity in times when no foreign foe appears on the
horizon. Wide discretion, within the bounds of law, in
fulfilling presidential duties in times of peace is not in
any way diminished by the relative want of an
emergency specified in the commander-in-chief
provision. x x x69 (Citations omitted)
I cannot subscribe to this position.
To echo the Court's words in Genuino, the imposition of
a restriction on the right to travel may not be justified by
resorting to an analogy. 70
A closer look at the very limited cases in which the
President's unstated "residual powers" and "broad
discretion" have been recognized71 reveals that the
exercise of these residual powers can only be justified in
the existence of circumstances posing a threat to the
general welfare of the people so imminent that it
requires immediate action on the part of the
government.
In Marcos, these circumstances were "the catalytic effect
of the return of the Marcoses that may pose a serious
threat to the national interest and welfare", 72 the fact that
the country was only then "beginning to recover from the
hardships brought about by the plunder of the economy
attributed to the Marcoses and their close associates and
relatives, many of whom are still here in the Philippines
in a position to destabilize the country, while the
Government has barely scratched the surface, in its
efforts to recover the enormous wealth stashed away by
the Marcoses in foreign jurisdictions".73 The
distinctiveness of these circumstances impelled the
Court to thus treat its pronouncement therein as sui
generis:
This case is unique. It should not create a precedent,
for the case of a dictator forced out of office and into
exile after causing twenty years of political, economic
and social havoc in the country and who within the short
space of three years seeks to return, is in a class by
itself. 74 (Emphasis supplied)
I submit, therefore, that respondents' reliance on the
Court's ruling in Marcos as basis to determine the scope
of the President's "residual powers" is erroneous.
In any case, the "residual powers" as referred to in
Section 20, Chapter 7, Title I, Book III of the
Administrative Code, refers to the President's power to
"exercise such other powers and functions vested [in the
President] which are provided for under the laws and
which are not specifically enumerated above, or which
are not delegated by the President in accordance with
law."
While residual powers are, by their nature, "unstated,"
these powers are vested in the President in furtherance of
the latter's duties under the Constitution. To exempt
residual powers from the restrictions set forth by the
very same document from which they emanate is
absurd. While residual powers are "unstated", they
are not extra-constitutional.
Indeed, while the President possesses the residual
powers in times of calamity, these powers are limited by,
and must therefore be wielded within, the bounds set
forth by the Constitution and applicable laws enabling
such powers' exercise. As aptly observed by the Supreme
Court in Rodriguez, Sr. v. Gella: 75
Shelter may not be sought in the proposition that the
President should be allowed to exercise emergency
powers for the sake of speed and expediency in the
interest and for the welfare of the people, because we
have the Constitution, designed to establish a
government under a regime of justice, liberty and
democracy. x x x Much as it is imperative in some cases
to have prompt official action, deadlocks in and
slowness of democratic processes must be preferred to
concentration of powers in any one man or group of men
for obvious reasons. The framers of the Constitution,
however, had the vision of and were careful in allowing
delegation of legislative powers to the President for a
limited period "in times of war or other national
emergency." They had thus entrusted to the good
judgment of the Congress the duty of coping with any
national emergency by a more efficient procedure; but it
alone must decide because emergency in itself cannot
and should not create power. In our democracy the hope
and survival of the nation lie in the wisdom and
unselfish patriotism of all officials and in their faithful
adherence to the Constitution."76 (Emphasis supplied)
Inasmuch as the President has the power to ensure the
faithful execution of laws, 77 and to protect the general
welfare of the people, such power can, by no means, be
wielded at every turn, or be unduly expanded to create
"inherent restrictions" upon fundamental rights protected
by the Constitution.
There are Constitutionally permissible
measures to address the problem
In the resolution of this Petition, the ponencia and the
related concurring opinions appear to harp on
the necessity of the governmental action involved, i.e.,
closure of the entire island to solve the problem at hand.
The ponencia, for instance, states:
Certainly, the closure of Boracay, albeit temporarily,
gave the island its much needed breather, and
likewise afforded the government the necessary
leeway in its rehabilitation program. Note that apart
from review, evaluation and amendment of relevant
policies, the bulk of the rehabilitation activities involved
inspection, testing, demolition, relocation, and
construction. These works could not have easily been
done with tourists present. The rehabilitation works in
the first place were not simple, superficial or mere
cosmetic but rather quite complicated, major, and
permanent in character as they were intended to serve as
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long-term solutions to the problem. Also, time is of the
essence. Every precious moment lost is to the
detriment of Boracay's environment and of the health
and well-being of the people thereat. Hence, any
unnecessary distraction or disruption is most
unwelcome. Moreover, as part of the rehabilitation
efforts, operations of establishments in Boracay had to
be halted in the course thereof since majority, if not all
of them, need to comply with environmental and
regulatory requirements in order to align themselves
with the government's goal to restore Boracay into
normalcy and develop its sustainability. Allowing
tourists into the island while it was undergoing necessary
rehabilitation would therefore be pointless as no
establishment would cater to their accommodation and
other needs. Besides, it could not be said that Boracay,
at the time of the issuance of the questioned
proclamation, was in such a physical state that would
meet its purpose of being a tourist destination. For
one, its beach waters could not be said to be totally safe
for swimming. In any case, the closure, to emphasize,
was only for a definite period of six months, i.e., from
April 26, 2018 to October 25, 2018. To the mind of the
Court, this period constitutes a reasonable time frame, if
not to complete, but to at least put in place the necessary
rehabilitation works to be done in the island. Indeed, the
temporary closure of Boracay, although unprecedented
and radical as it may seem, was reasonably necessary
and not unduly oppressive under the circumstances. It
was the most practical and realistic means of
ensuring that rehabilitation works in the island are
started and carried out in the most efficacious and
expeditious way. x x x78 (Emphases and underscoring
supplied)
As I earlier intimated in this opinion, I concede and
recognize that Boracay was facing a critical problem that
necessitated its closure. I do acknowledge that there was
both necessity and urgency to act on the island's
problem. Nonetheless, at the risk of being repetitive, I
reiterate that the closure was invalid without an enabling
law enacted for the purpose - a requirement that is
neither impossible nor unreasonable to comply with.
To illustrate, under the Constitution, the President may
certify a bill as urgent "to meet a public calamity or
emergency."79 Thus:
No bill passed by either House shall become a law
unless it has passed three readings on separate days, and
printed copies thereof in its final form have been
distributed to its Members three days before its
passage, except when the President certifies to the
necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill,
no amendment thereto shall be allowed, and the vote
thereon shall be taken immediately thereafter, and the
yeas and nays entered in the Journal. (emphasis
supplied)
In Tolentino vs. Secretary of Finance, 80 the Court ruled
that the President's certification dispenses with the
requirement of (i) three readings on separate days and
(ii) of printing and distribution three days before its
passage. This constitutional mechanism allows the
President to communicate to Congress what the
government's priority measures are, and allows these
same bills to "skip" what otherwise would be a rather
burdensome and time-consuming procedure in the
legislative process. Stated differently, this certification
provides a constitutionally sanctioned procedure for the
passing of urgent matters that needed to be in the form of
a law.
Indeed, this is not uncharted territory. The Court can
take judicial notice81 of the fact that, for instance, the bill
that would later on become the Bangsamoro Organic
Law was certified as urgent on May 29, 2018. 82 In less
than two months, or by July 26, 2018, the bill was
already signed into law. 83 Another example is the
passage of the Responsible Parenthood and
Reproductive Health Act. After its second reading in the
House of Representatives on December 12, 2012, the
Reproductive Health (RH) Bill was certified as urgent by
the then President on December 13, 2012.84 The House
of Representatives and Senate approved the measure on
third reading on December 17, 2012 and ratified its final
version on December 19, 2012.85 By December 21,
2012, or merely eight days from the certification of
the bill as urgent, the RH Bill was signed into law.86
There is thus clear precedent on the effectiveness of this
mechanism. Regrettably, it was not resorted to in
addressing Boracay's problems. Instead, an
unconstitutional shortcut was taken by merely issuing a
proclamation to close the island.
This unconstitutional shortcut is, to repeat, the
raison d'etre for this dissent. The situation in Boracay is
undoubtedly dire; yet, there are constitutionally
permissible measures that the government could, and
should, have taken to address the problem.
The protection afforded by the right to
due process, as asserted in connection
with one's right to work, applies with
equal force to all persons, regardless of
their profession
Finally, the ponencia declares that petitioners Zabal and
Jacosalem, being part of the informal economy sector
where earnings are not guaranteed, cannot be said to
have already acquired vested rights to their sources of
income in Boracay. Since their earnings are contingent,
the ponencia proceeds to conclude that petitioners have
no vested rights to their sources of income as to be
entitled to due process. 87
I disagree.
Section 1, Article III on the Bill of Rights of the
Constitution provides that "[n]o person shall be deprived
of life, liberty, or property without due process of law x
x x." Property protected under this constitutional
provision includes the right to work and the right to
earn a living.
In JMM Promotion and Management, Inc. v. Court of
Appeals, 88 which was cited by the ponencia, the Court
held that "[a] profession, trade or calling is a property
right within the meaning of our constitutional
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guarantees. One cannot be deprived of the right to work
and the right to make a living because these rights are
property rights, the arbitrary and unwarranted
deprivation of which normally constitutes an actionable
wrong."89
Notwithstanding this constitutional protection, the right
to property is not absolute as it may be curtailed through
a valid exercise of the State's police power. 90 However,
such deprivation must be done with due process.
The ponencia concedes that one's profession or trade is
considered a property right covered by the due process
clause.91 However, the ponencia is of the position that
petitioner Zabal and Jacosalem's right thereto is merely
inchoate, reasoning as follows:
In any case, petitioners, particularly Zabal and
Jacosalem, cannot be said to have already acquired
vested rights to their sources of income in Boracay. As
heretofore mentioned, they are part of the informal
sector of the economy where earnings are not
guaranteed. x x x
xx x Clearly, said petitioners' earnings are contingent in
that, even assuming tourists are still allowed in the
island, they will still earn nothing if no one avails of
their services. Certainly, they do not possess any vested
right on their sources of income, and under this context,
their claim of lack of due process collapses. To stress,
only rights which have completely and definitely
accrued and settled are entitled protection under the due
process clause.92
There is no question that petitioners have no vested right
to their future income. However, what is involved here is
not necessarily the right to their future income; rather, it
is petitioners' existing and present right to work and
to earn a living. To belabor the point, such right is not
inchoate - on the contrary, it is constitutionally
recognized and protected. The fact that petitioner Zabal
and Jacosalem's professions yield variable income (as
opposed to fixed income) does not, in any way, dilute
the protection afforded them by the Constitution.
On this score, I take exception to the position that
petitioners Zabal and Jacosalem lack legal standing to
file the present Petition.93
Locus standi or legal standing is the right of appearance
in a court of justice on a given question.94 In order to
possess the necessary legal standing, a party must show
a personal and substantial interest in the case such that
s/he has sustained or will sustain direct injury as a result
of the challenged governmental act.95 This requirement
of direct injury "guarantees that the party who brings suit
has such personal stake in the outcome of the
controversy and, in effect, assures 'that concrete
adverseness which sharpens the presentation of issues
upon which the court depends for illumination of
difficult constitutional questions.’’’’96
In their petition, petitioners stated that:
106. Petitioners Zabal and Jacosalem's daily earnings
from their tourism-related activities are absolutely
necessary to put food on the table, send their children to
school, and cover the daily expenses of their families.
107. Without such sources of income - even if only for a
period of six (6) months - said petitioners' families will
go hungry and, worse, be uprooted or forced to relocate
to other places. Such a development would disrupt their
children's schooling and work untold hardships upon
their families.
108. Petitioners have every right to continue to earn a
living in the manner they so choose which, and
depriving them of their livelihood violates such right and
creates untold hardships for them and their families. 97
Applying jurisprudential standards, the inescapable
conclusion is that petitioners Zabal and Jacosalem
unquestionably have legal standing. Undoubtedly, they
have a personal and substantial interest in this case and
they have shown that they would sustain direct injury as
a result of the Boracay closure.
In denying petitioners any legal standing, the ponencia
cites Galicto v. Aquino III 98 (Galicto) a case involving
the constitutionality of Executive Order No. (E.O.) 7
issued by President Benigno Aquino III which ordered,
among others, a moratorium on the increases in the
salaries and other forms of compensation of all
government owned and controlled corporations
(GOCCs). The ponencia summarized the ruling therein
as follows:
x x x The Court held that Galicto, an employee of the
GOCC Philhealth, has no legal standing to assail [E.O.]
7 for his failure to demonstrate that he has a personal
stake or material interest in the outcome of the case. His
interest, if any, was speculative and based on a
mere expectancy. Future increases in his salaries and
other benefits were contingent events or expectancies to
which he has no vested rights. Hence, he possessed
no locus standi to question the curtailment thereof. 99
Applying the foregoing principles, the ponencia finds
that petitioners Zabal and Jacosalem do not have
standing to file the instant petition, reasoning that:
124
x x x, Zabal is a sandcastle maker and Jacosalem, a
[tricycle] driver. The nature of their livelihood is one
wherein earnings are not guaranteed. As correctly
pointed out by respondents, their earnings are not fixed
and may vary depending on the business climate in that
while they can earn much on peak seasons, it is also
possible for them not to earn anything on lean seasons,
especially when the rainy days set in. Zabal and
Jacosalem could not have been oblivious to this kind of
situation, they having been in the practice of their trade
for a considerable length of time. Clearly, therefore,
what Zabal and Jacosalem could lose in this case are
mere projected earnings which are in no way guaranteed,
and are sheer expectancies characterized as contingent,
subordinate, or consequential interest, just like
in Galicto. Concomitantly, an assertion of direct injury
on the basis of loss of income does not clothe Zabal and
Jacosalem with legal standing. 100
Contrary to the foregoing supposition, Galicto is
inapplicable in this case.
In Galicto, the Court correctly ruled that Galicto's
interest was merely speculative and based on a mere
expectancy because he has no vested rights to salary
increases and, therefore, the absence of such right
deprives him of legal standing to assail E.O. 7. The
same ruling cannot be applied in the instant case. The
impairment of petitioners' rights as a consequence of
the closure of Boracay gives rise to interests that are
real, and not merely speculative. There is no doubt that
they will be directly affected by the closure because they
derive their income on tourism-related activities in
Boracay. While Galicto was concerned about future
increases, what is involved in the present case is
petitioners' constitutionally protected right to work and
earn a living. 101 To stress, the fact that petitioners Zabal
and Jacosalem's professions yield variable income does
not, in any way, dilute the protection they are entitled to
under the Constitution.
Conclusion
I end this discourse fully cognizant of the unfortunate
realities that the island of Boracay has faced. I do not
attempt to ignore the degradation it has suffered in the
hands of those who have refused to comply with statutes,
rules and regulations crafted for its protection.
When the exigencies of times call for limitations on
fundamental rights, it is incumbent upon Congress to
respond to the need by explicitly authorizing such
limitations through law. 102 While the President has the
power, nay, duty, to address such exigencies, the
necessity of impairing constitutional rights in connection
therewith is not for him to determine, more so,
unilaterally impose, most particularly in cases where, as
here, there is an absence of any indication that Congress
would be unable to respond to the call.
The requirements under Section 6, Article III of the
Constitution are as clear as they are absolute. The
parameters for their application have been drawn in deft
strokes by the Court in Genuino promulgated just nine
(9) months ago. Respondents' shotgun attempt to carve
out an exception to these requirements in order to justify
the issuance of Proclamation 475 actually betrays their
complete awareness of the Proclamation's nullity.
In Genuino, the Court warned against the sacrifice of
individual liberties for a perceived good as this is
disastrous to a democracy. Therein, the Court
emphasized:
One of the basic principles of the democratic system is
that where the rights of the individual are concerned, the
end does not justify the means. It is not enough that there
be a valid objective; it is also necessary that the means
employed to pursue it be in keeping with the
Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question that not
even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions,
will excuse the bypassing of an individual's rights. It is
no exaggeration to say that a person invoking a right
guaranteed under Article III of the Constitution is a
majority of one even as against the rest of the nation who
would deny him that right. 103
The Court did not hesitate to protect the Constitution
against the threat of executive overreach in Genuino.
The refusal to do so now is nothing less than
bewildering.
The judicial validation of Proclamation 475 lends itself
to abuse. It grants the President the power to encroach
upon fundamental constitutional rights at whim, upon
the guise of "faithful execution," and under a sweeping
claim of "necessity." The ponencia lauds the "bold and
urgent action" taken by the present government, but in
the process, lost sight that it did so at the expense of
fundamental rights. Undue premium has been placed on
the underlying necessity for which the remedial action
was taken, and the speed in which it was implemented.
As a consequence, the inviolability of constitutionally
protected rights has been forgotten.
I invite everyone, both within and outside the confines of
this judicial institution, to learn from history. The Berlin
Wall - the border system that divided a country
physically and ideologically for nearly three decades -
was said to have been built overnight. For a modem
democracy, such as ours, that is struggling to strike a
balance between maintaining the integrity of its
institutions and dealing with its inefficiencies, the
swiftness with which the Berlin Wall was built may be
astonishing, if not enviable.
Yet, it is well to be reminded that the Berlin Wall was
constructed at the initiative of a leader perceived by
many as a dictator. If this country is to remain a
democracy - as opposed to a dictatorship - the challenge
for all of us is to accept that progressive and sustainable
changes require much time.
To my mind, this ponencia, which prioritizes swiftness
of action over the rule of law, leads to the realization of
the very evil against which the Constitution had been
crafted to guard against - tyranny, in its most dangerous
form. To say that we believe in our Constitution, and yet
discard it so easily because of expediency, is to
champion hypocrisy to the detriment of our national
soul.
125
In view of the foregoing, I vote to GRANT the Petition.
[ G.R. No. 202897. August 06, 2019 ]
MAYNILAD WATER SERVICES, INC.,
PETITIONER, VS. THE SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES ("DENR"), THE
POLLUTION ADJUDICATION BOARD ("PAB"),
THE REGIONAL EXECUTIVE DIRECTOR,
ENVIRONMENTAL MANAGEMENT BUREAU-
NATIONAL CAPITAL REGION ("EMB-NCR"),
THE REGIONAL DIRECTOR, ENVIRONMENTAL
MANAGEMENT BUREAU-REGION III ("EMB-
REGION III"), THE REGIONAL DIRECTOR,
ENVIRONMENTAL MANAGEMENT BUREAU-
REGION IV ("EMB-REGION IV"),
RESPONDENTS.
[G.R. No. 206823]
MANILA WATER COMPANY, INC., PETITIONER,
VS. THE SECRETARY OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
(DENR), THE REGIONAL EXECUTIVE
DIRECTOR, ENVIRONMENTAL MANAGEMENT
BUREAU-NATIONAL CAPITAL REGION (EMB-
NCR), THE REGIONAL DIRECTOR,
ENVIRONMENTAL MANAGEMENT BUREAU-
REGION III (EMB-REGION III), THE REGIONAL
DIRECTOR, ENVIRONMENTAL MANAGEMENT
BUREAU-REGION IV ("EMB-REGION IV-A"),
AND THE POLLUTION ADJUDICATION BOARD
(PAB), RESPONDENTS.
[G.R. No. 207969]
METROPOLITAN WATERWORKS AND
SEWERAGE SYSTEM, PETITIONER, VS. THE
POLLUTION ADJUDICATION BOARD AND
ENVIRONMENTAL MANAGEMENT BUREAU,
RESPONDENTS.
DECISION
HERNANDO, J:
Water is not a mere commodity for sale and
consumption but a natural asset to be protected and
conserved. Sanitation is its corollary constant, as a poor
state of sewerage systems is one of the pillars of people's
miseries. We have a collective responsibility to preserve
water resources and improve sanitation facilities for
future generations.[1]
In early Mesopotamia, Rome, and Egypt, civilizations
thrived in the waters of the rivers Tigris and Euphrates,
Tiber, and the Nile, respectively. Henry Cavendish, an
English chemist and physicist, was first to show in 1781
that water is composed of oxygen and
hydrogen[2] molecules which are elements that occur in
nature. It is considered as the 'universal solvent' for its
ability to dissolve most substances.[3] As humanity have
always known, water is one of the most essential
resources in the world and its preservation a top priority.
It is an ever-active but unsung hero in human progress -
a natural resource vital for conservation of life,
environmental protection, and economic development. [4]
It cannot be gainsaid that the role of water spans from
the nuclear to the astronomical. Yet this "giver of life" is
threatened by various adversities. Local incidents of
water scarcity are fast becoming normal occurrences
because of extended El Niño conditions resulting from
climate change. Our sewerage systems are antiquated, if
not defunct or nonexistent, and far too neglected - the
fact that urban informal settlers by the creeks use the
same as their bathrooms and trash bins has reached the
status of common knowledge. That water has become an
ironically expensive resource is ever more apparent, and
unstable access to potable water is afflicting more and
more areas over time. While their importance is all too
obvious, the state of the Philippines' water supply and
water sanitation appear hopelessly grim.
The principal duty of the State and the water industry to
supply drinking water and provide top-notch wastewater
services through provisions of sewage and septage
treatments to households and businesses needs no further
emphasis. People have perpetually guarded themselves
against water contamination and have evolved from
conveying raw waste to natural bodies of water to
devising complex sewerage systems. In more ways than
one, water and water quality has been a strategic
resource which can cause considerable health, sanitation,
and biodiversity impacts. Its sociological effects also
proliferate in the cultural and economic lives of each
individual.
All told, the case before Us is monumental.
Fifteen years from the effectivity of Republic Act (R.A.)
No. 9275, or the Philippine Clean Water Act of 2004
(Clean Water Act),[5] allegations that certain entities
demonstrated and are continuing to demonstrate blatant
apathy with their obligations thereunder now surface and
clamor for resolution. As this unfortunately coincides
with Metropolitan Manila's ongoing water supply crisis,
the Court, in this case, must declare with dispatch and in
126
no uncertain terms the complete, categorical, and
definitive implementation of this vital piece of
legislation revolving around the natural resource that is
water. We have never shirked from the duty such as this
and we do not begin now.
THE CASE
Challenged in these Petitions for Review on
Certiorari[6] under Rule 45 of the Rules of Court are
separate rulings of the Court of Appeals.[7] These
adjudications[8] uniformly affirmed the Secretary of
Environment and Natural Resources (SENR), finding
petitioners Metropolitan Waterworks and Sewerage
System (MWSS), Maynilad Water Services Inc.
(Maynilad) and Manila Water Company, Inc. (Manila
Water), liable for violation of and noncompliance with
Section 8[9] of the Clean Water Act.
The antecedent facts follow.
THE FACTS
On April 2, 2009, the Regional Office of the Department
of Environment and Natural Resources (DENR)
Environmental Management Bureau-Region III (EMB-
RIII) filed a complaint before the DENR's Pollution
Adjudication Board (PAB) charging MWSS and its
concessionaires, Maynilad and Manila Water, with
failure to provide, install, operate, and maintain adequate
Wastewater Treatment Facilities (WWTFs) for sewerage
system resulting in the degraded quality and beneficial
use of the receiving bodies of water[10] leading to Manila
Bay, and which has directly forestalled the DENR's
mandate to implement the operational plan for the
rehabilitation and restoration of Manila Bay and its river
tributaries.[11]
On April 8 and 21, 2009, the Regional Directors of the
DENR EMB-National Capital Region (NCR) and
Region VI-A (RVI-A) also instituted their complaints
before the PAB. They similarly charged MWSS,
Maynilad, and Manila Water with failure to (a) provide,
install, or maintain sufficient WWTFs compliant with
the standards and objectives of the Clean Water Act; (b)
construct Sewage Treatment Plants and Sewerage
Treatment Facilities (STPs & STFs) for treatment of
household wastes; and, ultimately, (c) perform its
obligations under the said law. According to the EMB-
NCR and EMB-RVI-A, the test results of water samples
taken from Manila Bay showed that the quality of water
near the area has worsened without improvement in all
parameters.
Prompted by the said complaints, the SENR issued a
Notice of Violation (NOV). The NOV determined
petitioners' violation of Section 8 of the Clean Water
Act, in that they have not provided, installed, or
maintained sufficient WWTFs and sewerage connections
satisfactory enough in quantity to meet the standards and
objectives of the law, notwithstanding court orders and
the lapse of the five-year period provided by the Clean
Water Act.[12]
After the requisite technical conference before the PAB,
petitioners submitted their respective answers to the
charges. MWSS led the defense and averred that they
were compliant with the law.[13] Maynilad and Manila
Water also asserted the supremacy of the Concession
Agreements (Agreement/s) executed with MWSS
containing service targets for water supply, sewerage,
and sanitation within specific milestone periods spread
over the twenty-five year concession period. [14] They
sought refuge under Section 7 of the Clean Water Act
which first requires the Department of Public Works and
Highways (DPWH) to prepare and effect a national
program on sewerage and septage management to guide
the MWSS and/or its concessionaries in implementing
the law. They also claimed other factors contributing to
the continued pollution of Manila Bay and its river
tributaries. They likewise put forth their respective
proposals, on-going projects, and accomplishments
relative to the performance of their obligations under the
Agreements.[15]
In refutation, the Regional Directors of the DENR-EMB
maintained that the quantity of the WWTFs is
insufficient to meet the objectives of the law. Petitioners'
proffered "significant improvements" on domestic
wastewater management actually did not fall within
acceptable parameters, where the river tributaries
became heavily polluted, as evidenced by the results of
the laboratory analysis and monthly monitoring of
various river systems conducted by the DENR-EMBs.
There remains no connection of the existing sewage
lines in the Cavite Area, and no sufficient STFs
established in the San Juan area.[16]
The Ruling of the SENR
In his deliberation of the complaints, the SENR ruled
that the Clean Water Act, specifically, the provisions on
the five-year period to connect the existing sewage lines,
is mandatory, and the refusal of petitioners' customers to
connect to a sewage line is irrelevant to Section 8 of the
law. The SENR further stated that petitioners' failure to
provide a centralized sewerage system and connect all
sewage lines is a continuing unmitigated environmental
pollution resulting in the release and discharge of
untreated water into various water areas and Manila Bay.
Citing the Supreme Court ruling in Metropolitan Manila
Development Authority (MMDA) v. Concerned
Residents of Manila Bay,[17] strict compliance with the
Clean Water Act is a necessary given, and the five-year
periodic review stipulated in the Agreements between
petitioners should have considered and factored in the
requirements of the Clean Water Act.[18]
Thus, in an Order dated October 7, 2009, upon
recommendation of the PAB and in DENR-PAB Case
No. NCR-00794-09, the SENR found MWSS, Maynilad,
and Manila Water liable for violation of the Clean Water
Act and its Implementing Rules and Regulations (IRR),
imposing the following fines against them:
WHEREFORE, after due deliberation and consultation,
the Secretary resolves to impose the fines amounting
to TWENTY-NINE MILLION FOUR HUNDRED
THOUSAND PESOS (PhP 29,400,000.00) jointly and
solidarily against [petitioners] covering the period
starting from 07 May 2009, the lapse of the fifth year
from effectivity of the Clean Water Act as provided for
under Section 8 thereof, to 30 September 2009.
127
Thereafter, a fine of Two Hundred Thousand Pesos
(PhP 200,000.00) per day shall be fined against
[petitioners] until such time that [petitioners] have
already fully complied with the provisions of RA 9275.
[Petitioners] are hereby directed to pay the fines within
ten (10) days from receipt hereof.
[Petitioners'] payment shall be made through the EMB
Central Office at Visayas Ave., Diliman, Quezon City.
The Regional Executive Director (DENR-Region NCR)
or his duly authorized representative is hereby directed
to serve this Order within seventy-two (72) hours from
receipt hereof. A report shall likewise be submitted to
the Board within forty-eight (48) hours from execution
stating the proceedings taken therein.[19]
MWSS and Manila Water filed separate motions for
reconsideration of the SENR's Order dated October 7,
2009, both of which were denied in another Order dated
December 2, 2009, viz.:
WHEREFORE, after due deliberation and consultation,
the Secretary hereby resolves to DENY the Motion for
Reconsideration filed by [petitioners], MWSS and
Manila Water and direct the same to comply with the
previous Order dated 07 October 2009. As to Maynilad,
since it had failed to submit its Motion for
Reconsideration within the allowable period, the
Secretary deemed their non-submission as a waiver of
their right to be heard and submit evidence. Hence, the
Secretary hereby directs the same to comply with the
said previous Order.
The Regional Executive Director (DENR-Region NCR)
or his duly authorized representative is hereby directed
to serve this Order within seventy-two (72) hours from
receipt hereof. A report shall likewise be submitted to
the Board within forty-eight (48) hours from execution
stating the proceedings taken therein.[20]
On November 19, 2009, Maynilad filed its first motion
for reconsideration. On December 9, 2009, Maynilad
instituted a second motion for reconsideration,[21] which
the PAB denied outright for lack of merit in its Order
dated March 17, 2010.[22]
Petitioners filed separate petitions for review under Rule
43 of the Rules of Court before the Court of Appeals
questioning these Orders of the SENR.
The Rulings of the Court of Appeals
The court a quo did not consolidate the petitions and
ruled the same separately.
In CA-G.R. SP No. 113374, the Court of Appeals
dismissed Maynilad's petition for violation of procedural
rules on motions for reconsideration.[23] It found that
Maynilad (1) belatedly moved for reconsideration of the
SENR's October 7, 2009 Order, which therefore became
final and executory; and (2) its second motion for
reconsideration was a mere scrap of paper for being a
prohibited pleading and did not toll the reglementary
period. The Court of Appeals desisted from ruling on
Maynilad's petition for review since the ruling in DENR
PAB Case No. NCR-00794-09 already attained finality.
The Court of Appeals so declared in its Decision[24] dated
October 26, 2011:
WHEREFORE, the petition is DISMISSED. Petitioner
[Maynilad] is directed to comply with the Orders of the
DENR-PAB dated October 7, 2009, December 2, 2009
and March 17, 2010.[25]
The Court of Appeals also denied Maynilad's motion for
reconsideration in its Resolution[26] dated July 17, 2012.
Disposing of the substantive merits of the case, the Court
of Appeals rebuffed petitioners' invocation of the ruling
of the Supreme Court in MMDA v. Concerned Citizens
of Manila Bay[27] which, Maynilad asserts, supersedes the
five-year compliance period set by the Clean Water Act
for petitioners to connect all the existing sewage line
found in the whole of Metro Manila and other Highly
Urbanized Cities (HUCs) as defined in the Local
Government Code of 1991.[28] The Court of Appeals
further held that the invoked item[29] in the body of
the MMDA case relating to petitioners' obligations in the
clean-up of Manila Bay, simply sets different deadlines:
one for submission by Maynilad and Manila Water of
their plans and projects for the construction of WWTFs
in certain areas in Metro Manila, Rizal and Cavite, and
another for the actual construction and completion
thereof.
In CA-G.R. SP No. 112023, the Court of Appeals
likewise dismissed Manila Water's petition. It found in
the main that, applying verba legis, Section 8 of the
Clean Water Act is clear, plain and free from ambiguity,
in requiring Manila Water to connect the existing
sewage lines in its service area to sewerage systems
ready for and already in use within five years from
effectivity of the law. It held that the compliance period
under the Clean Water Act is separate from the
compliance periods provided in the Agreement between
MWSS and Manila Water. In the same vein, it also ruled
that the DPWH need not first formulate a National
Sewerage and Septage Management Program (NSSMP)
before Manila Water can be compelled to comply with
Section 8 of the Clean Water Act. The Court of Appeals
stated that "Section 8, R.A. No. 9275 categorically states
that the petitioner shall connect existing sewage lines to
available sewerage system in its service area '[w]ithin
five (5) years following the effectivity of this Act,' and
not within 5 years from the formulation of the NSSMP
or within 5 years from the preparation of the compliance
plan for mandatory connection by the DPWH." The
dispositive portion of the Court of Appeals
Decision[30] dated August 14, 2012 disposed of Manila
Water's petition as follows:
WHEREFORE, the petition is hereby DISMISSED.
The Orders dated October 7 and December 2, 2009
issued by the DENR-PAB Case No. NCR-00794-09, are
hereby AFFIRMED.[31]
The Court of Appeals also denied Manila Water's motion
for reconsideration in its Resolution[32] dated April 11,
2013.
In CA-G.R. SP No. 112041, the petition of MWSS
before the Court of Appeals met the similar fate of
dismissal. It preliminarily dealt with the incorrect
remedy of MWSS when it resorted to Rule 43 in
questioning the Orders of the SENR. The Orders were
issued not by the PAB, but by the SENR pursuant to
Section 28 of the Clean Water Act. As such, the remedy
128
of MWSS therefrom is an appeal to the Office of the
President and not a Rule 43 petition to the Court of
Appeals. The court a quo also noted that the MWSS
failed to exhaust administrative remedies which renders
its petition dismissible. Still and all, the Court of
Appeals likewise found MWSS' petition wanting in
substance, ruling that Section 8 of the Clean Water Act
expressly mandates MWSS, as the government agency
vested with the duty to supply water and sewerage
services, to connect all existing sewage lines to the
available sewage system within five years from the date
of effectivity of the law or from May 6, 2004. Section 8
imposes a clear and unequivocal duty on the part of
MWSS and its concessionaire, and
the provisos thereunder only state the imposition of
service fees and the requirement for all sources of
sewage and septage to comply therewith, not an
exemption from compliance. The Court of Appeals
decreed in its Decision[33] dated September 25, 2012:
WHEREFORE, the instant petition is DISMISSED for
lack of merit.[34]
MWSS's motion for reconsideration was also denied in
the Court of Appeals Resolution[35] dated June 17, 2013.
Thus, these consolidated petitions for review
on certiorari raising grave errors in the foregoing rulings
by the Court of Appeals.
The Case before this Court
MWSS' Arguments
MWSS insists it did not violate the law. It argues, in
essence, that its obligation under Section 8 of the Clean
Water Act has yet to accrue given the lack of required
coordination and cooperation by the lead and
implementing agencies under Section 7 of the law and
non-compliance by the DPWH, DENR and LGUs with
Sections 7 of the Clean Water Act, specifically the
preparation and establishment of a national program on
sewerage and septage management.[36]
Maynilad's Arguments
Maynilad mainly anchors its arguments on our ruling
in MMDA v. Concerned Residents of Manila
Bay[37] which ultimately ordered MWSS to construct the
necessary WWTFs in the areas of Metro Manila, Rizal
and Cavite with a deadline for completion of the
construction. It relied on Our following declarations in
the said case:
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.[38]
Manila Water's Arguments
On the other hand, Manila Water maintains that it was
deprived of due process of law when the DENR
Secretary imposed a fine without a valid complaint or
charge, and that the Orders dated October 7 and
December 2, 2009 were issued without or in excess of
jurisdiction since the SENR arrogated the full powers of
the PAB, imposing a fine without the requisite
recommendation from the latter. Manila Water is
steadfast in its position that it did not violate Section 8 of
the Clean Water Act, as Section 7, in relation to Section
8, of the Clean Water Act partakes of a condition
precedent to Manila Water's fulfillment of its obligations
thereunder. Even if so obliged under Section 8, Manila
Water claims exemption from the "five-year timeline"
for compliance. It also assails the fine imposed by the
SENR for being excessive and confiscatory amounting
to deprivation of property without due process.[39]
           
Respondents
' Arguments
through the
Office of the
Solicitor
General
Through the Office of the Solicitor General (OSG),
respondents refute petitioners' uniform assertion that
they did not violate Section 8 of the Clean Water Act.
The OSG points out petitioners' liability for violation of
the Clean Water Act in failing to provide a centralized
sewerage system under Section 8 thereof, which is
distinct from the obligations of various government
agencies under the same law. Respondents disagree with
petitioners' contention that the conditions contained in
Section 7 of the Clean Water Act are conditions
precedent for the implementation of Section 8 thereof.
They defend that the Order of the SENR finding
petitioners liable for violation of Section 8 of the Clean
Water Act were based on substantial evidence, and that
the SENR Order imposing a fine on petitioners for
violation of Section 8 of the Clean Water Act was based
on a valid complaint or charge. Specific to the Court of
Appeals's dismissal of Maynilad's appeal, respondents
also assert that the assailed Orders of the SENR had
already attained finality.
Preliminary matters to be noted
A clarification on a number of preliminary matters
appears necessary.
First. On April 4, 2017, the Court issued a
Resolution[40] requiring a number of stakeholders,
government agencies, and petitioners Maynilad and
Manila Water, to provide complete and detailed status
reports of their compliance with various provisions of
the Clean Water Act and its IRR.
Albeit with much difficulty, the government agencies,
except for the lead agency under the Clean Water Act,
the DENR, as well as herein petitioners, have complied
with the April 4, 2017 Resolution of this Court. We note
that one of the government agencies we required to
comply, the National Sewerage and Septage
Management Program (Office NSSMPO), as per the
DPWH's Compliance, has yet to be organized as an
office thereunder. We shall discuss the contents of all
these Compliances in the course of our disposition in this
case.
129
Next. In these appeals, petitioners separately implead
various respondents but uniformly assail the Orders of
the SENR dated October 7 and December 2, 2009.
In G.R. No. 202897, Maynilad and Manila Water
impleaded the DENR Secretary, the Regional Directors
for NCR, Region III, and Region IV-A of the DENR-
EMB, and the PAB. MWSS, on the other hand, impleads
as respondents the PAB and the Regional Offices, NCR,
III, and IV-A of the DENR-EMB.
We note, however, that, in their respective petitions for
review under Rule 43 of the Rules of Court which they
filed before the Court of Appeals, petitioners averred
that the Orders dated October 7 and December 2, 2009
were issued by the PAB, and not by the Secretary of the
DENR. However, all three rulings of the appellate court
bear out otherwise. Only the Decision of the appellate
court in CA-G.R. SP No. 112041, entitled "MWSS v.
PAB and DENR-EMB," squarely dealt with the
procedural mistake of petitioners.[41]
In resolving these cases, we will definitively settle the
proper recourse that petitioners should have undertaken
under the applicable laws and rules of procedure, i.e.,
Executive Order No. 192,[42] Executive Order No. 292,
and Revised Rules of the Pollution Adjudication Board
on Pleading, Practice and Procedure in Pollution Cases.
Further. May 7, 2009 is the date following the lapse of
five (5) years from the time the Clean Water Act took
effect on May 6, 2004, per Rule 1.2 of the DENR
Administrative Order No. 2005-10 (DAO No. 2005-10)
or the Implementing Rules and Regulations of the Clean
Water Act, which states:
Effectivity of the CWA. The CWA was published on
April 21, 2004 and subsequently took effect on May 6,
2004.
Last. The overarching framework in our disposition
herein considers the following:
1. The rationale for the enactment of Clean Water Act
and its provisions.
2. The obligatory force of environmental laws in general,
and water quality management, in particular, with the
"Public Trust Doctrine" and its application in the case at
bar as overture.
3. The pertinent obligations of MWSS under its Charter,
Republic Act No. 6234, and the Concession Agreements;
and the concurring obligations of MWSS'
concessionaires, petitioners Maynilad and Manila Water,
under the Clean Water Act, the Agreements, and the
subsequent extension thereof.
4. The much-invoked ruling in MMDA v. Concerned
Residents of Manila Bay.[43]
ISSUES
For this Court's resolution are the procedural and
substantive issues, to wit:
I. Procedural
1. Whether the Orders of the SENR dated October 7 and
December 2, 2009 did not comply with the requirements
under Section 28 of the Clean Water Act and Section 19
of Executive Order No. 192.
2. Whether petitioners were deprived of procedural due
process when the Secretary of the DENR imposed a fine
on them for violation of the Clean Water Act.
II. Substantive
1. Whether petitioners violated Section 8 of the Clean
Water Act.
1.1 Whether compliance by specified government
agencies to their obligations under Section 7 of the Clean
Water Act is a condition precedent to petitioners'
fulfillment of their obligations thereunder.
1.2 Whether petitioners' actual compliance to the
Agreements regarding specific targets for completion of
sewerage system projects prevail over that of their
obligations under Section 8 of the Clean Water Act.
1.3 Assuming that the five-year compliance period under
Section 8 is controlling, whether petitioners are
exempted from complying thereto by the provided
deadline, i.e., May 6, 2009.
2. Whether the ruling in MMDA v. Concerned Residents
of Manila Bay supersedes the five-year compliance
period stated in Section 8 of the Clean Water Act and
extended petitioners' compliance therewith until the year
2037.
2.1 Whether the MMDA case impliedly repealed Section
8 of the Clean Water Act.
2.2 Whether the MMDA case effectively nullified the
Orders of the SENR dated 07 October and 02 December
2009.
3. Whether petitioners ought to be fined under Section
28 of the Clean Water Act.
THE COURT'S RULING
We shall examine at length and resolve the issues
separately.
I.
Procedural Issues
The
SENR's
Orders are
appealable
to the
Office of
the
President
In arguing that the SENR violated petitioners' right to
due process in imposing a fine without a valid complaint
or charge and without recommendation from the PAB,
130
petitioners inadvertently highlight the gravity of their
procedural mistake, i.e., the filing of a petition for
review under Rule 43 to the appellate court to question
the Orders of the SENR.
The PAB is a separate office under the Department
proper, and is chaired by the Secretary of the
Department.[44] In general, the PAB has exclusive
jurisdiction over the adjudication of pollution cases, and
all other matters related thereto, including the imposition
of administrative sanctions.[45] The PAB also exercises
specific jurisdiction over certain environmental laws,
including the Clean Water Act:
The PAB has the exclusive and original jurisdiction with
respect to adjudication of pollution cases based on
exceedance of the DENR Effluent Standards and other
acts defined as prohibited under Section 27 of R.A.
9275.[46]
In 2009, during the pendency of DENR-PAB Case No.
NCR-00794-00, proceedings in the PAB were governed
by Resolution No. I-C, Series of 1997.[47] It defined the
Board's sole and exclusive jurisdiction and the finality of
its decisions. Its Rule III, on Jurisdiction and Authority,
read:
SECTION 1. JURISDICTION OF THE BOARD. - The
Board shall have sole and exclusive jurisdiction over all
cases of pollution, as defined herein, and all other
matters related thereto, including the imposition of
administrative sanction, except as may be provided by
law.
And Rule XI, on Finality of Decisions:
SECTION 1. FINALITY OF ORDER, RESOLUTION
OR DECISION AND PERIOD TO APPEAL - Subject
to the provisions of the preceding rule, any order,
resolution or decision of the Board shall become final
and executory after fifteen (15) days from the date of
receipt thereof, unless a motion for reconsideration is
filed or an appeal is perfected within said period. The
mere filing of an appeal shall not stay the decision of the
Board.
However, the Orders of the SENR are different from the
issuances of the PAB. While under its 1997 rules, the
PAB had jurisdiction to impose the fine or
administrative sanction on all cases of pollution, it is
Section 28[48] of the Clean Water Act and its IRR, Rule
28 of DAO No. 2005-10, which must be correctly
applied. It was already in effect in 2009 and specifically
bestows upon the Secretary of the DENR, upon
recommendation of the PAB, in cases of commission
of prohibited acts under and violations of the Clean
Water Act, the power to impose fines, order the
closure, suspension of development or construction,
or cessation of operations, or, where appropriate
disconnection of water supply.
The herein assailed Orders dated October 7 and
December 2, 2009 were not issued by the PAB but by
the SENR. Thus, we affirm the appellate court's holding
in CA-G.R. SP No. 112041 that the appropriate
remedy from the Orders of the SENR is an appeal to
the Office of the President.[49]
Consequently, petitioners prematurely filed a petition
for review before the Court of Appeals and failed to
exhaust administrative remedies. These erroneous
procedural steps effectively rendered petitioners' appeals
dismissible, resulting in the finality of the Orders of the
SENR.[50]
No Denial of Procedural Due Process
Petitioners' claim of denial of due process is just as
infirm.
Due process of law has two aspects: substantive and
procedural. Substantive due process refers to the
intrinsic validity of a law that interferes with the rights
of a person to his property. Procedural due process, on
the other hand, means compliance with the procedures or
steps, even periods, prescribed by the statute, in
conformity with the standard of fair play and without
arbitrariness on the part of those who are called upon to
administer it.[51] In order that a particular act may not be
impugned as violative of the due process clause, there
must be compliance with both the substantive and the
procedural requirements thereof. As nowhere in the
voluminous records of these cases have petitioners
questioned the extrinsic and intrinsic validity of the
Clean Water Act, there is no reason to dispute the said
law. We thus restrict the discussion to whether there was
a violation of procedural due process.
In invoking their right to due process, petitioners mainly
argue that the SENR, without a valid complaint or
charge, imposed a fine without the recommendation
from the PAB and arrogated unto itself the powers of the
latter.
We disagree.
The records disclose the fact that this case was spawned
by the complaints commenced by the Regional Directors
of the DENR-EMB-RIII, DENR-EMB-NCR, and
DENR-EMB-RVI-A before the DENR-PAB. The SENR
acted upon the said complaints in response, issuing the
NOV against petitioners which explicitly stated:
Notice of Violation
Sir:
Notice is hereby served upon you that the Manila Water
Sewerage System (MWSS) has committed violations as
found during the periodic monitorings conducted by this
Office from January to March 2009.
Act Constituting Violation
1. You have not provided, installed or maintained
sufficient wastewater treatment facilities satisfactory
enough in quantity to meet the standards and objectives
of the law. Neither have you carried out the connection
of the sewage line being mandated by law,
notwithstanding the Order of the Court and the lapse of
the five-year period provided by RA 9275.
2. Sec. 8 of RA 9275 states that "[w]ithin five (5) years
following the effectivity of this Act, the agency vested to
provide water supply and sewerage facilities and/or
concessionaires in Metro Manila and other highly
urbanized cities (HUCs) as defined in Republic Act No.
7160, in coordination with LGUs, shall be required to
connect the existing sewage line found in all
131
subdivisions, condominiums, commercial centers, hotels,
sports and recreational facilities, hospitals, market
places, public buildings, industrial complex and other
similar establishments including households to available
sewerage system."
In this regard, you are hereby directed to attend a
technical conference to be conducted by the Board on
May 5 - 9:00 am for the purpose of simplification of the
issues and stipulation of facts.
Please be informed that pursuant to Section 28 of the
Clean Water Act, a fine of not less than Ten Thousand
Pesos (PhP 10,000.00) but not more than Two Hundred
Thousand Pesos (PhP 200,000.00) per day of violation
may be imposed to the offender who violates the
provision of the Act and its IRR.[52]
In clear terms, the NOV stated the charges against
petitioners, gave a directive to attend the technical
conference for simplification of issues and stipulations
of facts, and apprised them of the liability imposed on
violators under Section 28 of the Clean Water Act.
Hence, petitioners were notified of the charges
against them, were given an opportunity to be heard
during a technical conference,[53] and were informed
of the penalty for possible violations of the Clean
Water Act. These charges were the same accusations for
which petitioners were eventually found liable for. In
addition, petitioners wrote several letters addressed to
the PAB and the Secretary of the DENR formalizing
their position in response to the Complaint-Affidavits of
the Regional Directors of the DENR-EMB. In turn, the
Regional Directors filed their Comments thereto, which
were amply refuted by the petitioners. Demonstrably, the
SENR, upon recommendation of the PAB, pursuant to
the Clean Water Act, validly imposed the fine after the
charge, hearing, and due deliberation.
Moreover, the role of the PAB under Section 28 of the
Clean Water Act is merely recommendatory. The
pertinent portion of Section 28 of the said law provides:
SECTION 28. Fines, Damages and Penalties. - Unless
otherwise provided herein, any person who commits any
of the prohibited acts provided in the immediately
preceding section or violates any of the provision of
this Act or its implementing rules and regulations,
shall be fined by the Secretary, upon the
recommendation of the PAB in the amount of not less
than Ten thousand pesos (P10,000.00) nor more than
Two hundred thousand pesos (P200,000.00) for every
day of violation. The fines herein prescribed shall be
increased by ten percent (10%) every two (2) years to
compensate for inflation and to maintain the deterrent
function of such fines: Provided, That the Secretary,
upon recommendation of the PAB may order the closure,
suspension of development or construction, or cessation
of operations or, where appropriate disconnection of
water supply, until such time that proper environmental
safeguards are put in place and/or compliance with this
Act or its rules and regulations are undertaken. This
paragraph shall be without prejudice to the issuance of
an ex parte order for such closure, suspension of
development or construction, or cessation of operations
during the pendency of the case. (Emphasis supplied.)
This participation by the PAB in the imposition of fines
as penalty under Section 28 of the Clean Water Act is
also phrased as recommendatory by the Revised Rules of
the Pollution Adjudication Board on Pleading, Practice
and Procedure in Pollution Cases:[54]
B. EXPANDED POWERS OF THE BOARD
Pursuant to specific laws, the Board shall exercise, but
not be limited to, the following powers:
xxxx
B.3 Under Section 28 of R.A. 9275, Clean Water Act
of 2004, the Board shall:
8. Recommend to the DENR Secretary the imposition
of fines for acts of omission prohibited under Section
27 of the Act. [Emphasis supplied.]
Over and beyond the risk of repetition, it must be
underscored here that the role of the PAB in the
imposition of fines for violation of Section 28 of the
Clean Water Act is restricted to a recommendation of
penalty. The execution of punitive power thereunder
remains with the SENR. This, however, should not be
taken to mean that the recommendatory role of the PAB
is dispensable. Its technical expertise in pollution cases
such as the one at hand remains crucial, and this
expertise, the SENR definitely did not disregard. Despite
the lack of actual or formal recommendation of liability
given by the PAB against petitioners, the technical
conference was conducted by the PAB, and the findings
during the said conference and upon deliberation on the
pleadings of the parties were produced by the PAB. The
latter body, referred to as the Board by the SENR, had
determined petitioners' liabilities on the basis of its own
lengthy disquisitions, as noted by the SENR in its Order
dated October 7, 2009, viz.:
During the deliberation of the case, the Board took
note of the following findings, to wit:
As to the violation of Section 8 of R.A. 9275, the
justification submitted by the respondent is insufficient
to justify its failure to comply with the said provision.
R.A. 9275 is a statutory law, compliance of which is
mandatory. It is mala prohibita as opposed to mala in se.
The rule is that in acts mala in se there must be a
criminal intent, but in those mala prohibita it is
sufficient if the prohibited act was intentionally done. x
x x It has already been cited by the Supreme Court that
violation of environmental laws, are mala prohibita x x
x. It is sufficient that the acts complained of were proven
(and in this instance admitted), and no amount of
justification will clear it of any violation.
It should be noted that the excuse offered by respondents
that several customers refuse to connect is irrelevant.
Section 8 of R.A. 9275 itself makes it mandatory for any
sewage and septage to comply with the said rule to wit[:]
"Provided, further, that all sources of sewage and
septage shall comply with the requirements herein".
Persons in violation of such mandatory provision may be
held accountable in accordance with Section 28 of the
said law.
xxxx
Thus, the refusal of any person under the said law is
already addressed by the same law.
132

Moreover, assuming that such excuse would justify non-
compliance of a mandatory provision of the law, such
excuse partakes the nature of an affirmative defense. It is
incumbent upon the respondent to prove his affirmative
defense by clear and convincing evidence. x x x Aside
from the mere statements given by the respondent, no
proof or evidence was shown to justify its stance.
It should further be noted that the five (5)-year period
was made to provide sufficient time to comply with the
interconnection of all water supply and sewerage
facilities. The continued failure of providing a
centralized sewerage system in compliance with the said
law means that several sewage line continues to dump
and release untreated sewerage within their vicinities -
resulting in unmitigated environmental pollution. The
fact of the matter is that, because of the failure to
completely centralized [sic] the sewerage system and
comply with Section 8 of the law, untreated water are
[sic] continuously being dumped within existing water
areas and the Manila Bay, resulting in the continued
pollution of the said water areas.
Moreover, strict compliance of the law is necessary in
light of the said 18 December 2008 Order issued by the
Supreme Court, quoting portions of the said decision:
"In light of the ongoing environmental degradation, the
Court wishes to emphasize the extreme necessity for all
concerned executive departments and agencies to
immediately act and discharge their respective official
duties and obligations. Indeed, time is of the essence;
hence, there is a need to set timetables for the
performance and completion of the tasks, some of them
as defined for them by law and the nature of their
respective offices and mandates . . ."
In its decision on the case at bar, the High Court directed
the DENR to fully implement its Operational Plan for
the Manila Bay Coastal Strategy for the rehabilitation,
restoration of the Manila Bay at the earliest possible time
and 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. In
same vein, it ordered the MWSS 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.
This pronouncement of the Court finds basis in Section 8
of R.A. 9275 which was already stated earlier.
As regards the argument of the respondents that the
MWSS entered into a Concessionaire Agreement with
Manila Water and Maynilad prior to the CWA and
therefore they believed that subsequent law should not
impair existing agreements, the Board took note that the
parties review the provisions of the CA every five (5)
years. If this is the case and if there is indeed intention
on the part of the parties to comply with the law, the
parties should have made the schedule in the CA
consistent with the requirement of the said law.
Based on the foregoing discussion, it is clear that the
respondents have committed a violation under the
provision of the Clean Water Act or R.A. 9275,
particularly Section 8 thereof which a penalty of fines
ranging from PhP 10,000.00 to PhP 200,000.00 per
day of violation may be imposed against them.
Inasmuch as there is a strong basis as shown by
records that the respondents indeed have not
complied with the requirements of the law to the
letter and that tremendous amount of pollution exists
at the above-cited receiving bodies of water, the
maximum amount of penalty should be meted out
against respondents.[55] (Emphasis supplied, citations
omitted.)
These findings by the PAB, albeit not specifically
labelled as a "recommendation", laying out petitioners'
accountability and calling for the imposition of fine,
were all cited, adopted, and relied upon by the SENR in
penalizing them under Section 28 of the Clean Water
Act. It also bears noting that petitioners attended this
technical conference before the PAB, in which all of the
parties thereto were allowed to air their respective sides.
Service of justice, not technical subservience, is the end
pursued by the rules of procedure. In administrative
proceedings, the filing of charges and giving reasonable
opportunity for the person so charged to answer the
accusations against him constitute the minimum
requirements of due process.[56] Once this purpose has
been fulfilled, despite trivial deviations from the rules,
and for as long as a party has been meaningfully heard or
at the very least afforded the chance to be heard, any
finding fairly arrived upon by the administrative body
will hold and shall not be disregarded. Suffice it to state
here that the voluminous records on hand disclose that
petitioners have been heard more than sufficiently
throughout the entire proceedings of this case.
In any case, whatever procedural lapse that may have
transpired during the proceedings before the PAB and
the SENR had already been cured when MWSS,
Maynilad, and Manila Water all moved for
reconsideration of the SENR's Orders.[57] Procedural due
process, as applied to administrative proceedings, means
a fair and reasonable opportunity to explain one's
side, or an opportunity to seek a reconsideration of the
action or ruling complained of.[58]
All said, the petitions on hand already merit their
outright dismissals on technical score alone.
Nonetheless, the transcendental nature of the issues
raised herein, involving as they do matters of extreme
public interest, compels this Court to resolve the
substantive issues raised by petitioners. The resolution of
all the substantive issues in these cases is of utmost
urgency and necessity in order to solidify the importance
of the policy and rationale for the law. An adjudication
on only the procedural issues would only result in
ambiguities on the obligations set by the Clean Water
Act on the various stakeholders and actors - government
agencies, private individuals and companies, and
industry organizations. If left unresolved, these issues
will necessarily open further rounds of protracted
litigation, to the detriment of the Filipino consumer as
the primary stakeholder.
133
 II.
Substantive issues
Violation of the Clean Water Act by petitioners
An initial academic discussion on the historical and legal
basics is in order.
Water Management as a Public Trust
Protruding from the basic tenet that water is a vital part
of human existence, this Court introduces the Public
Trust Doctrine. It aims to put an additional strain upon
the duty of the water industry to comply with the laws
and regulations of the land.
A number of doctrines already protect and sanctify
public welfare and highlight the State's various roles
relative thereto. Article XII, Section 2, of the 1987
Philippine Constitution elaborates on the ownership of
the State over the nation's natural resources and its right
and duty to regulate the same:
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 above constitutional provision is the embodiment
of jura regalia, or the Regalian doctrine, which reserves
to the State ownership of all natural resources. [59] The
Regalian doctrine is an exercise of the State's sovereign
power as owner of lands of the public domain and of the
patrimony of the nation.[60] Sources of water form part of
this patrimony.
The vastness of this patrimony precludes the State from
managing the same entirely by itself. In the interest of
quality and efficiency, it thus outsources assistance from
private entities, but this must be delimited and controlled
for the protection of the general welfare. Then comes
into relevance police power, one of the inherent powers
of the State. Police power is described in Gerochi v.
Department of Energy[61]:
[P]olice power is the power of the state to promote
public welfare by restraining and regulating the use
of liberty and property. It is the most pervasive, the
least limitable, and the most demanding of the three
fundamental powers of the State. The justification is
found in the Latin maxim salus populi est suprema
lex (the welfare of the people is the supreme law) and sic
utere tuo ut alienum non laedas (so use your property as
not to injure the property of others). As an inherent
attribute of sovereignty which virtually extends to all
public needs, police power grants a wide panoply of
instruments through which the State, as parens patriae,
gives effect to a host of its regulatory powers. We have
held that the power to "regulate" means the power to
protect, foster, promote, preserve, and control, with
due regard for the interests, first and foremost, of the
public, then of the utility and of its patrons.
Hand-in-hand with police power in the promotion of
general welfare is the doctrine of parens patriae. It
focuses on the role of the state as a "sovereign" and
expresses the inherent power and authority of the state to
provide protection of the person and property of a
person non sui juris.[62] Under the doctrine, the state has
the sovereign power of guardianship over persons of
disability, and in the execution of the doctrine the
legislature is possessed of inherent power to provide
protection to persons non sui juris and to make and
enforce rules and regulations as it deems proper for the
management of their property.[63] Parens patriae means
"father of his country", and refers to the State as a last-
ditch provider of protection to those unable to care and
fend for themselves. It can be said that Filipino
consumers have become such persons of disability
deserving protection by the State, as their welfare are
being increasingly downplayed, endangered, and
overwhelmed by business pursuits.
While the Regalian doctrine is state ownership over
natural resources, police power is state regulation
through legislation, and parens patriae is the default
state responsibility to look after the defenseless, there
remains a limbo on a flexible state policy bringing these
doctrines into a cohesive whole, enshrining the objects
of public interest, and backing the security of the people,
rights, and resources from general neglect, private greed,
and even from the own excesses of the State. We fill this
void through the Public Trust Doctrine.
The Public Trust Doctrine, while derived from English
common law and American jurisprudence, has firm
Constitutional and statutory moorings in our jurisdiction.
The doctrine speaks of an imposed duty upon the State
and its representative of continuing supervision over the
taking and use of appropriated water.[64] Thus, "[p]arties
who acquired rights in trust property [only hold] these
rights subject to the trust and, therefore, could assert no
vested right to use those rights in a manner harmful to
the trust."[65] In National Audubon Society v. Superior
Court of Alpine County,[66] a California Supreme Court
decision, it worded the doctrine as that which -
[T]he state had the power to reconsider past allocation
decisions even though an agency had made those
decisions after due consideration of their effect on the
public trust. This conclusion reflected the view that
water users could not acquire a vested property right in
the water itself; they merely obtained a usufructuary
right to the water.
Academic literature further imparts that "[p]art of this
consciousness involves restoring the view of public and
state ownership of certain natural resources that benefit
all. [...]" The "doctrine further holds that certain natural
resources belong to all and cannot be privately owned or
134
controlled because of their inherent importance to each
individual and society as a whole. A clear declaration of
public ownership, the doctrine reaffirms the superiority
of public rights over private rights for critical resources.
It impresses upon states the affirmative duties of a
trustee to manage these natural resources for the benefit
of present and future generations and embodies key
principles of environmental protection: stewardship,
communal responsibility, and sustainability."[67]
In this framework, a relationship is formed -
"the [s]tate is the trustee, which manages specific
natural resources the trust principal - for the trust
principal for the benefit of the current and future
generations - the beneficiaries."[68] "[T]he [S]tate has an
affirmative duty to take the public trust into account in
the planning and allocation of water resources, and to
protect public trust uses whenever feasible."[69] But with
the birth of privatization of many basic utilities,
including the supply of water, this has proved to be quite
challenging. The State is in a continuing battle against
lurking evils that has afflicted even itself, such as the
excessive pursuit of profit rather than purely the public's
interest.
These exigencies forced the public trust doctrine to
evolve from a mere principle to a resource management
term and tool flexible enough to adapt to changing social
priorities and address the correlative and consequent
dangers thereof. The public is regarded as the
beneficial owner of trust resources, and courts can
enforce the public trust doctrine even against the
government itself.[70]
It is in this same manner that the right to distribute water
was granted by the State via utility franchises to
Maynilad and Manila Water, under express statutory
regulation through its delegated representative, the
MWSS. The State conferred the franchise to these
concessionaires, working under the firm belief that they
shall serve as protectors of the public interest and the
citizenry. In this regard, water rights must be secured to
achieve optimal use of water resources, [71] its
conservation, and its preservation for allocative
efficiency.
For this purpose, water users who are subject to
regulation by the State or by its own franchise must
obtain permits[72] and comply with the sanctions imposed
on them. The enjoyment of these permits is not perpetual
and require a continued demonstration of quality and
good service. Water allocation decisions must coincide
with a comprehensive water supply plan which reflects
not only economic efficiency but also environmental and
health values.[73] Henceforth, whenever there are
changing needs and circumstances, there must also be
proper re-allocation techniques.[74] "[T]he state can re--
evaluate prior allocations and must act to preserve the
right of present and future generations."[75] "The idea that
the state must manage water resources for the benefit of
present and future generations captures the idea of
sustainability and reflects our extended connection to
those who succeed us."[76]
Via legislative act of police power, the enactment of the
Clean Water Act thrusts the obligation onto the water
concessionaires to provide for a proper sewerage and
septage system that complies with environmental and
health standards to protect present and future
generations. The magnitude of this law is highlighted by
the trust relationship among the State, concessionaires,
and water users, which must reflect a universal
intangible agreement that water is an ecological resource
that needs to be protected for the welfare of the citizens.
In essence, "[t]he public trust doctrine is based on the
notion that private individuals cannot fully own trust
resources but can only hold them subject to a servitude
on behalf of the public."[77] "States can accomplish this
goal more efficiently through statutory
regulation"[78] which was essentially done through the
legislation of the Clean Water Act, and the urgency and
significance of which is now fortified by the courts
under the Public Trust Doctrine as clamored for by the
circumstances of this case.
The Clean Water Act
The Clean Water Act, or "An Act Providing for a
Comprehensive Water Quality Management and For
Other Purposes," is a sweeping piece of legislation
consolidating into a coherent whole the fragmented
aspects of quality water management. This purpose is
reflected in Section 2(c) thereof, which formalizes the
need to "formulate a holistic national program of water
quality management that recognizes that water quality
management issues cannot be separated from concerns
about water sources and ecological protection, water
supply, public health and quality of life."
The essential framework of the Clean Water Act is
summed up in Section 2, the Declaration of Policy.
[79]
 The ratio for the enactment of Clean Water Act was
best explained by Senator Robert Jaworski in his
sponsorship speech of Senate Bill No. 2115, the
precursor of R.A. No. 9275:
Water pollution is a particularly costly problem in
densely populated urban areas such as Metro Manila.
Ninety percent of our drinking water comes from
underground sources. But these sources are threatened
by depletion and contamination, particularly from non-
existence of sewerage systems or faulty sewerage
systems that seep into underground water sources. Fresh
water sources near many cities have become so severely
contaminated that more distant sources have to be
explored at high costs. Although sophisticated
purification methods to clean polluted rivers exist, such
methods are expensive and complicated. Meanwhile, the
cost of unsafe water is also high. We must remember and
realize that in developing countries like the Philippines,
an estimated 80% of all illnesses are waterborne.
Inefficient water resource management also plays a role
in water scarcity. Water resources are developed and
managed, more or less, independently at different levels
of jurisdiction-national, regional, and local-and by
separate sectors, including our industries, agriculture,
municipal water supply, recreation and so on. Such
fragmentation leads to poor planning of water use and
leads people to use water carelessly and without regard
to its economic value.
xxxx
135

The lack of usable, clean water resources is a problem
that confronts us today. This is the reason, Mr. President,
this committee thought of submitting this measure as our
humble contribution in finding alternative solutions. This
bill will rationalize the various government institutions
and agencies whose functions have long been
fragmented, resulting in uncoordinated and circuitous
bureaucratic polices and wasted funds. We put to task
the Department of Environment and Natural Resources
(DENR) to come up with Water Reports and Water
Quality Management Systems to be accomplished within
a reasonable time frame, bearing in mind the urgency of
this problem. We also provided the mechanism for the
participation of our local executives and planners, non-
government organizations and the civil society.
xxxx
This bill is not lacking in incentives and rewards and it
has muscle to penalize acts that further pollute all our
water sources as well. We increased the fines so that
with strict implementation, we can curb the damage we
continue to inflict, ironically, to our life source.
xxxx
x x x The Manila Bay has been derisively described as
the widest septic tank ever made by Filipinos. The
residuals discharged into the watercourses consist of
biodegradable, nonbiodegradable and persistent
pollutants of which, regardless of the scientific
classifications given, result in water pollution. Domestic
sewage is the most commonly known organic waste,
although industrial wastes are far greater in volume. We
have a scenario where we do not have a concrete sewage
treatment program. Cited earlier, these wastes seep to the
ground, significantly altering our aquifers and surface
water. Without treatment, they are ingested by us. The
misery is worse for those who cannot afford treated
water, the very reason we have a disease-prone
population.[80]
The ensuing legislative deliberations on Senate Bill No.
2115 exposed some of the causes of poor water
management, which included fragmentation of the
numerous government arms involved in water supply
and regulation.[81] It was hoped that the passage of the
Clean Water Act would serve as the remedial tool in the
integration and proper definition of the State's policies
on water management and conservation. In the same
vein, the Clean Water Act assigned specific obligations
for stakeholders and actors: This includes
concessionaires, among others. The Clean Water Act
further connects water regulation with septage
management programs, including the Code on Sanitation
of the Philippines,[82] Water District Law,[83] the Local
Government Code,[84] the National Building Code,[85] and
the Revised National Plumbing Code.
The necessity for sewers and sewage, septage, and
sewerage facilities is a matter not up for debate. Sewer,
as generally understood in law, has reference to the
underground canal or passage by means of which cities
are drained and the filth or refuse liquids are carried to
the sea, river, or other places or reception, but it has also
been applied to an underground structure for conducting
the water of a natural stream.[86] Either way, sewers are
constructed as sanitary measures for the public good.
[87]
 Septage are waste found in septic tanks,[88] or the
sludge produced on individual onsite wastewater-
disposal systems, principally septic tanks and cesspools.
[89]
 Although sewage and sewerage are terms used often
interchangeably, there is a distinction between the two,
the word sewerage being usually applied to a system of
sewers, and sewage to the matter carried off.[90] A more
graphic description of sewage under DAO No. 2005-10
triggers the extreme necessity to contain it- it means
water-borne human or animal wastes, excluding oil or oil
wastes, removed from residences, buildings, institutions,
industrial and commercial establishments together with
such groundwater, surface water and storm water as
maybe present including such waste from vessels,
offshore structures, other receptacles intended to receive
or retain wastes, or other places or the combination
thereof.[91] Sewerage systems and the disposal of sewage
are matters of particular importance to
municipalities[92] and local government units, what with
the general health and environmental significance and
hazards they impose.
Bearing in mind that sanitation services are limited and
costly "to construct and operate, septage management is
a practical first step for most utilities and [local
government units].[93] We also consider that there must
be proper design, operation, and maintenance of septic
tanks. "In all cases, municipalities, regulatory officials
and service providers shall apply the most restrictive
language in any law, rule, or regulation when
interpreting the legal requirements for sludge and
septage management."[94] Subsequently, a sewerage
system must be built to provide for a proper
infrastructure that enables sewage of water using sewers.
This infrastructure consists of receiving drains,
manholes, pumps, storm overflows, and screening
chambers, which allows the water to flow out of the
environment.
Based on the aforecited legal baselines, the Clean Water
Act requires water utility companies to provide for
sewerage and septage management services within five
years of the law's passage.[95] This sewerage or septage
management services requirement is the bone of
contention in these cases.
Section 8 of the Clean Water Act
Section 8, as provided under Chapter 2 of the Clean
Water Act on Water Quality Management System, reads:
Domestic Sewage Collection, Treatment and Disposal. -
Within five (5) years following the effectivity of this
Act, the agency vested to provide water supply and
sewerage facilities and/or concessionaires in Metro
Manila and other highly urbanized cities (HUCs) as
defined in Republic Act No. 7160, in coordination with
LGUs, shall be required to connect the existing sewage
line found in all subdivisions, condominiums,
commercial centers, hotels, sports and recreational
facilities, hospitals, market places, public buildings,
industrial complex and other similar establishments
·including households to available sewerage
system: Provided, That the said connection shall be
subject to sewerage services charge/fees in accordance
136
with existing laws, rules or regulations unless the
sources had already utilized their own sewerage
system: Provided, further, That all sources of sewage
and septage shall comply with the requirements herein.
In areas not considered as HUCs, the DPWH in
coordination with the Department, DOH and other
concerned agencies, shall employ septage or combined
sewerage-septage management system.
For the purpose of this section, the DOH, in coordination
with other government agencies, shall formulate
guidelines and standards for the collection, treatment and
disposal of sewage including guidelines for the
establishment and operation of centralized sewage
treatment system.
Section 8 thus imposes the following obligations,
dissected as follows:
1. The setting of the obligation is prefaced by stating a
day certain for its complete performance-period of
within five years from effectivity of the Clean Water
Act.[96]
2. The actors here are "the agenc[ies] vested to provide
water supply and sewerage facilities and/or
concessionaires in Metro Manila and other highly
urbanized cities (HUCs)."
3. The prestation set by law is the "[connection of] the
existing sewage line found in all subdivisions,
condominiums, commercial centers, hotels, sports
and recreational facilities, hospitals, market places,
public buildings, industrial complex and other
similar establishments including households to
available sewerage system."
In the performance of its obligation, petitioners must
coordinate with the Local Government Units (LGUs).
This is so given the requirement on LGUs to provide
basic services and facilities, including the delivery of
clean water,[97] and the policy endowing LGUs with local
autonomy.[98]
In addition, the law's provisos allow for a sewerage
service charge by petitioners except for sources utilizing
their own sewerage system which in all cases must
comply with the requirements set forth in Section 8. The
law likewise stipulates that the sewerage-septage
management system, the guidelines and standards for
collection, disposal and treatment of sewage, and the
establishment and operation of a centralized sewage
treatment system, are to be undertaken by the concerned
government agencies such as the DPWH and DOH.
Nothing in Section 8, however, hinges petitioners'
performance of its obligation on a future and uncertain
event, specifically, the performance of the obligation
under Section 7.[99] What is clear is that the obligation in
Section 8 is demandable at once, upon effectivity of the
law, to be performed within a given period.[100]
Despite the clear wording of the law, petitioners remain
insistent that they did not violate Section 8 of the Clean
Water Act and thus should not have been fined by the
SENR. Their arguments are triptych: (1) Section 7 of the
Clean Water Act is a condition precedent to petitioners'
full compliance to Section 8 thereof; (2) the Agreements
executed by MWSS with the concessionaires, Maynilad
and Manila Water, are controlling in the latter's
performance of their obligations; and (3) petitioners are
exempted from complying with the five-year period in
Section 8 because of the ruling in MMDA v. Concerned
Residents of Manila Bay.[101]
We disagree with petitioners.
Section 7
is not a
condition
precedent
to
complianc
e with
Section 8
Section 7 of the Clean Water Act provides for the
National Sewerage and Septage Management Program -
The Department of Public Works and Highways
(DPWH), through its relevant attached agencies, in
coordination with the Department, LGUs and other
concerned agencies, shall, as soon as possible, but in no
case exceeding a period of twelve (12) months from the
effectivity of this Act, prepare a national program on
sewerage and septage management in connection with
Section 8 hereof. Such program shall include a priority
listing of sewerage, septage and combined sewerage-
septage projects for LGUs based on population density
and growth, degradation of water resources, topography,
geology, vegetation, programs/projects for the
rehabilitation of existing facilities and such other factors
that the Secretary may deem relevant to the protection of
water quality. On the basis of such national listing, the
national government may allot, on an annual basis, funds
for the construction and rehabilitation of required
facilities.
Each LGU shall appropriate the necessary land,
including the required rights-of-way/road access to the
land for the construction of the sewage and/or septage
treatment facilities.
Each LGU may raise funds to subsidize necessary
expenses for the operation and maintenance of sewerage
treatment or septage facility servicing their area of
jurisdiction through local property taxes and
enforcement of a service fee system.
Contrasted with Section 8, We identify the legal duties
under Section 7:
1. The main actor in Section 7 is the DPWH, through
its relevant attached agencies, in coordination with the
DENR, LGUs, and other concerned agencies. The
repeated requirement set by law, of coordination by the
main obligor with other government agencies, is a
recognition of the jurisdiction and authority of other
government agencies under different laws for the multi-
faceted aspect of environmental management. [102]
2. The period of performance for the DPWH is
immediate but shall not exceed twelve (12) months
from effectivity of the Clean Water Act.
3. The prestation is the preparation of a national
137
program on sewerage and septage management in
connection with Section 8.
4. The remaining paragraphs cover the required contents
of the program and the manner by which the obligation
shall be performed.
Clearly, Section 7 is not worded as a condition precedent
of Section 8 of the Clean Water Act. What jumps out of
the two provisions is that both provide for different and
disconnected compliance periods reckoned from the
effectivity of the Clean Water Act. If Section 7 is indeed
a condition precedent of the obligation in Section 8, the
law should have reckoned the enforcement of the
obligation in Section 8 from the time the obligation in
Section 7 has been fulfilled.
Even so, petitioners tenaciously cling to their argument
that Section 7 is a condition precedent for compliance.
This impels us to trace the origins of Sections 7 and 8 of
the Clean Water Act.
Sections 7 and 8 of the Clean Water Act were
preliminarily listed as Sections 15 and 16 of Senate Bill
No. 2115 and read thus:
SEC. 15. National Sewerage and Septage Management
Program. The Department, in coordination with the
DOH, Local Water Utilities Administration (LWUA),
NWRB, Metropolitan Waterworks and Sewerage System
(MWSS) and other concerned agencies, shall, as soon as
possible, but in no case exceeding a period of twelve
(12) months from the effectivity of this Act, prepare a
national program on sewerage and septage management
in connection with Section 16.
Such program shall include a priority listing of
sewerage, septage and combined sewerage-septage
projects for LGUs based on population density and
growth, degradation of water resources, topography,
geology, vegetation, programs/projects for the
rehabilitation of existing facilities and such other factors
that the Secretary may deem relevant to the protection of
water quality. On the basis of such national listing, the
national government may allot, on an annual basis, funds
for the construction and rehabilitation of required
facilities. LGUs may also enter into Build-Operate-and-
Transfer (BOT) or joint venture agreement with private
sector for the construction, rehabilitation and/or
operation of sewerage treatment or septage facilities in
accordance with existing laws, rules and regulations.
Each LGU may raise funds to subsidize necessary
expenses for the operation and maintenance of sewerage
treatment or septage facility servicing their area of
jurisdiction through local property taxes and
enforcement of a service fee system.
SEC. 16. Domestic Sewage Collection, Treatment and
Disposal. - Within seven (7) years following the
effectivity of this Act, all subdivisions, condominiums,
commercial centers, hotels, sports and recreational
facilities, hospitals, market places, public buildings,
industrial complex and other similar establishments
including households situated in Metro Manila and other
Highly Urbanized Cities (HUCs) as defined in Republic
Act No. 7160 shall be required to connect their
sewage line to available sewerage system either
through an agency vested to provide water supply
and sewerage facilities or through the
concessionaire/s subject to sewerage services
charge/fees in accordance with existing laws, rules or
regulations unless such sources had already utilized their
own sewerage system.
In areas not considered as HUCs, the DPWH in
coordination with the Department, DOH and other
concerned agencies, shall employ septage or combined
sewerage-septage management system.
For the purpose of this Section, the DOH, in
coordination with other government agencies, shall
formulate guidelines and standards for the collection,
treatment and disposal of sewage including guidelines
for the establishment and operation of centralized
sewage treatment system.[103]
The differences are minimal. While the prestation in
Section 16 above is still the connection of the different
kinds of establishment in Metro Manila and HUCs of
their sewage line to the available sewerage system, the
compliance period provided was seven (7) years from
effectivity of the law, the main actors were the actual
establishments with a sewage line, and the connection to
be undertaken through "the agency vested to provide
water supply and sewerage facilities or through the
concessionaires."
Significantly, the Amendments of then Senator Manuel
Villar, as proposed on his behalf by Senator Jaworski,
reduced the compliance period for connection of the
existing sewage lines from seven (7) to five (5) years:
Senator Jaworski. On page 13, line 7, delete the entire
paragraph and replace the same to read as follows:
"SEC. 16. DOMESTIC SEWAGE COLLECTION,
TREATMENT AND DISPOSAL - WITHIN FIVE (5)
YEARS FOLLOWING THE EFFECTIVITY OF
THIS ACT, THE LOCAL GOVERNMENT UNITS
AND/OR THE AGENCY VESTED TO PROVIDE
WATER SUPPLY AND SEWERAGE FACILITIES
AND/OR CONCESSIONAIRES IN METRO
MANILA AND OTHER HIGHLY URBANIZED
CITIES AS DEFINED IN REPUBLIC ACT
7160 SHALL BE REQUIRED TO CONNECT THE
EXISTING SEWAGE LINE FOUND IN ALL
SUBDIVISIONS, CONDOMINIUMS, COMMERCIAL
CENTERS, HOTELS, SPORTS AND
RECREATIONAL FACILITIES, HOSPITALS,
MARKET PLACES, PUBLIC BUILDINGS,
INDUSTRIAL COMPLEX AND OTHER SIMILAR
ESTABLISHMENTS INCLUDING HOUSEHOLDS
TO AVAILABLE SEWERAGE SYSTEM PROVIDED
THAT THE SAID CONNECTION SHALL BE
SUBJECT TO SEWERAGE SERVICES
CHARGE/FEES IN ACCORDANCE WITH EXISTING
LAWS, RULES OR REGULATIONS UNLESS THE
SOURCES HAD ALREADY UTILIZED THEIR OWN
SEWERAGE SYSTEM.[104]
While the reason for the amendment was not explicitly
reflected in the Senate deliberations, it can be assumed
that our lawmakers intended immediate enforcement and
implementation of the law in reducing the compliance
period from seven (7) years to five (5) years. Also with
138
the amendment, the actors are now the LGUs and the Thus, the terms of Section 8 are absolute. Ripe for this
water agency vested to provide water supply and Court's determination is the fact of compliance or lack
sewerage facilities and/or concessionaires in Metro thereof by the concessionaires with Section 8 of the
Manila and other HUCs. The Conference Committee Clean Water Act and its correlative implications.
Report on SB No. 2115 and HB No. 5398, thereafter,           
recommended for approval the current Section 8 of the Maynilad
Clean Water Act with the obligation thereunder now and
resting alone on MWSS and its concessionaires. [105] Manila
Water did
 
It is also noteworthy that the repeated use of the not
imperative word shall in the provision has the invariable comply
significance to impose the enforcement of an obligation, with
especially where public interest is involved.[106] As Section 8
worded in all the amendments, the obligation in Section
8 is commanding in nature, and it was not conditioned Maynilad and Manila Water filed their respective
on the performance of the act under Section 7 or any Compliances to our Resolution dated 17 April 2017,
other act. Read with the shortened compliance period, which contained the following:
the phraseology here plainly indicates the legislative (a) An updated list of the respective service areas under
intent to make the statutory obligation absolutely their concession agreements with the [MWSS]; [116]
mandatory for the party to assume and undertake. We
likewise note that the compliance period is still reckoned (b) An updated report on the status of compliance with
from the date of effectivity of the Act, not from Section 8 of the [Clean Water Act]; and
performance of the purported condition precedent in
Section 7. (c) List of subdivisions, condominiums, commercial
centers, hotels, sports and recreational facilities,
As further reference, the semantics of Rule 8 of DAO hospitals, market places, public buildings, industrial
No. 2005-10 mirroring and implementing Section complex and other similar establishments with existing
8[107] of the Clean Water Act on domestic sewage sewerage lines.[117]
management proves useful, as follows: sewerage and With the interest of the public in mind, We concentrate
sanitation systems must comply with DOH, DENR, and on item (b) above. The concessionaires were required to
DA standards;[108] the DPWH and DENR shall inform give the status of its compliance to Section 8 of the law.
LGU building officials of the requirements in the Clean We quote their respective reports in pertinent part:
Water Act pertinent to issuing building permits, A. Maynilad's Compliance
sewerage regulations, municipal and city planning; a)Complianc
[109]
 the DPWH shall coordinate with the water service e with
providers and concessionaires in preparing a compliance Section 8.1
plan for mandatory connection of the identified - Sewerage
establishments and households to the existing sewerage and
system;[110] sewerage facilities and sewage lines shall be Sanitation
provided by water concessionaires in coordination with Projects
the LGUs in accordance with their concession which  
agreements;[111] the DENR shall withhold permits or comply
refuse issuance of ECC and the DOH the Environmental with the
Sanitation Clearance, for establishments that fail to standards
connect their sewage lines to available sewerage system set forth by
as required;[112] the water supply utility provider shall be the DOH,
responsible for the sewerage facilities and the main lines DENR and
pursuant to pertinent laws;[113] and that in the absence of DA
constituted and operational water districts and water
corporations, the concerned LGU shall employ the 7. With respect to Section 8.1, as of 30 April 2017,
septage management system and other sanitation Maynilad is operating twenty (20) wastewater treatment
programs.[114] facilities ("facilities"), which are comprised of seventeen
(17) sewage treatment plants (STP), two (2) sewage and
In all, nothing in Sections 7 and 8 of the Clean Water septage treatment plants ("SSpTP") and one (1) septage
Act or its IRR[115] states or, at the very least, implies that treatment plant (SpTP).
the former is a condition precedent of the latter. From
the foregoing, it is apparent that the obligation imposed xxxx
on petitioners by Section 8, as implemented by Rule 8
of DAO No. 05-10, to connect the existing sewerage b)Compliance
lines is mandatory and unconditional. After the with Section
expiration of the five-year compliance period, the 8.3 -
obligatory force of Section 8 becomes immediate and Mandatory
 
can be enforced against petitioners without connection of
subordination to the happening of a future and identified
uncertain event. establishment
s and
139
 households to
the existing
sewerage
systems
xxxx
20. With regard to compliance with Section 8.3 of the
IRR, the DPWH has not yet issued a compliance plan for
the mandatory connection of identified establishments
and households to the existing sewerage systems.
xxxx
               
c)Section 8.4
Role of MWSS
and Water
Concessionaires
in Metro
Manila
xxxx
24. As of 30 April 2017, fifteen (15) STPs, one (1)
SSpTP and one (1) SpTP with a combined sewage
treatment capacity of 72,917 cubic meters per day
("CMD") and combined septage treatment of 740 CMD
have been completed by Maynilad.
xxxx
25. With the completion of the 15 additional
STPs, Maynilad has attained 13% sewerage coverage
for its water-served population as of 30 April 2017.
This is four-percentage points higher than its 9%
sewerage coverage in 2009. As a matter of information,
the sewerage coverage is expressed as a percentage of
the total water-served population in the service area of
Maynilad at the time the target was set. In 2009,
Maynilad had 814,645 billed water service connections.
Water being a basic necessity, Maynilad prioritized the
delivery of water to its customers in its service area.
Resultantly, the provision of water has outpaced the
provisions of SSCs. Nevertheless, with the completion
of 15 additional STPs, Maynilad's sewerage coverage
has increased to 13% despite the fact that its total billed
services reached up to 1,312,223 as of the end of 2016
(from the original 814,645).[118]
B. Manila Water's Compliance
xxxx
Manila Water respectfully submits that by all
indications, it is faithfully complying with the spirit and
intent of the Clean Water Act and its IRR. From a
minimal sewerage system in 1997, Manila Water has
successfully built from the ground-up thirty-eight (38)
STPs and one (1) SSpTP with sewer pipeline networks
connecting to households as well as industrial and
commercial establishments that avail of its to (sic)
sewage collection, treatment and disposal services in the
East Zone. These sewage treatment facilities, which
include the Marikina North STP (the largest facility of
its kind in the Philippines) and the LKK STP (the second
largest sewerage facility in the Philippines), have
combined capacity of309,544 cubic meters of
wastewater per day with a capacity to take on more load,
if necessary. In addition, Manila Water also
complements its sewage collection, treatment and
disposal services by providing sanitation services to
regularly clean-up septic tanks throughout the East Zone
thereby, making good on its commitment to protect the
environment.
Indeed, Manila Water has taken to heart its frontline role
in prevention, control, and abatement of pollution of
water resources by providing a continuously expanding
and improving scope of sewage collection, treatment and
disposal services amidst its pursuit of economic growth.
c. Sewer Service Accomplishments and Obligation
Targets
With the foregoing operational STPs with future
expansion well-underway, Manila Water has
significantly expanded its sewage collection, treatment
and disposable capability. As stated earlier, from a mere
40,000 m3/day of wastewater treated in 1997, Manila
Water now treats 101,049 m3/day of wastewater - a
153% increase in total treated wastewater from 1997.
This is equivalent to a total of 36,988,418 cubic meters
of treated wastewater per annum which is 50.7% higher
than the annual volume of wastewater treated as of 2011
which was then at 24,540,616 cubic meters.
As of 31 December 2016, Manila Water is providing
sewage collection, treatment and disposal services to
932,118 persons both in Metro Manila and Rizal.
xxxx
Thus, Manila Water is on-track to comply with its
obligation to ensure complete sewerage network
coverage by end of the Concession Agreement in
2037 as required by Section 8.4 of the Clean Water
Act IRR. A summary of [Manila Water's] sewer service
obligation targets as approved by the MWSS and the
MWSS-Regulatory Office is shown in Figure 4.0 below:
Area 2016 2021 2026 2031 2037
Service Metro
100
Obligatio Manil 19% 49% 77% 96%
%
n a
Sewer
Rizal 3% 15% 28% 37% 98%
Coverage
[Emphasis and underscoring supplied.]
Basing on Maynilad and Manila Water's own assertions,
petitioners' compliance with Section 8 of the law is
dismal at best. Given that a decade has already
passed following the effectivity of the Clean Water
Act, both concessionaires' compliance to Section 8 at
this current year do not even reach 20% sewerage
coverage.
We likewise cannot agree with petitioners' insistence that
the Agreements and its specified targets for completion
prevail over that of specific provisions of the law.
First. Even without delving into the obligatory force of
140
Section 8 of the Clean Water Act, the Agreements
already clearly enjoin full compliance with Philippine
laws, to wit:
6.8 Compliance with Laws
The Concessionaire shall comply with all Philippine
laws, statutes, rules Regulations, orders and
directives of any governmental authority that may
affect the Concession from time to time.
16.3 Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE BY AND
CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE REPUBLIC OF THE PHILIPPINES.
16.11 Conduct of the Concessionaire Pending the
Expiration Date. The Concessionaire hereby covenants
that, from the date three months prior to and including
the Expiration Date, unless MWSS shall otherwise
consent in writing (which consent shall not unreasonably
be withheld), the Concessionaire shall conduct the
business and operations of the Concession in the
ordinary and usual course in a manner consistent with
past best practice and, without limiting the generality of
the foregoing, the concessionaire shall:
xxxx
(iii) at all times comply with all material laws,
statutes, rules, regulations, orders and directives of
any governmental authority having jurisdiction over
the Concessionaire or its businesses, except in cases
where the application thereof is being contested in good
faith or is the subject of an appeal or other legal
challenge.[119]
Second. Even before the inception of the Clean Water
Act, the Court, in Province of Rizal v. Executive
Secretary,[120] already had occasion to declare the self-
proving fact that "sources of water should always be
protected."
In Province of Rizal, the Court was confronted with the
Order of then President Joseph Estrada to reopen the San
Mateo dumpsite on January 11, 2001 despite the MOA
executed between the petitioner therein Province of
Rizal with the MMDA for the permanent closure of the
dumpsite by December 31, 2000. The Court considered
various laws cited by respondents therein and upheld the
then newly enacted Solid Waste Management Act of
2000 and the power of the LGUs to promote the general
welfare. This Court declared in that decision that waste
disposal is regulated by the Ecological Solid Waste
Management Act of 2000. The said law was enacted
pursuant to the declared policy of the state "to adopt a
systematic, comprehensive and ecological solid waste
management system which shall ensure the protection of
public health and environment, and utilize
environmentally sound methods that maximize the
utilization of valuable resources and encourage resource
conservation and recovery."[121]
Province of Rizal also declared that "[l]aws pertaining to
the protection of the environment were not drafted in a
vacuum. Congress passed these laws fully aware of the
perilous state of both our economic and natural wealth. It
was precisely to minimize the adverse impact humanity's
actions on all aspects of the natural world, at the same
time maintaining and ensuring an environment under
which man and nature can thrive in productive and
enjoyable harmony with each other, that these legal
safeguards were put in place."[122] It is also highlighted in
that case that the freedom of contract is not
absolute and is understood to be subject to reasonable
legislative regulation aimed at the promotion of public
health, moral, safety, and welfare.[123] We find these
disquisitions applicable and disadvantageous to
petitioners' argument.
Third. Petitioners' theory justifying their non-compliance
with Section 8 reeks of unfairness and greed for profit,
given that Maynilad and Manila Water had already been
levying a "Sewerage Charge" upon the consuming
public:[124]
The Water Bill or Statement of Account includes the
following charges:
l. Basic Charge is your consumption in cubic meter
multiplied to the water rate corresponding on your
customer classification (i.e. residential, semi-business).
2. CERA is P1.00 per cubic meter of actual water
consumed.
3. FCDA (Foreign Currency Differential Adjustment) is
computed as a percentage of the basic charge depending
on the calculated factor for the quarter.
4. EC (Environmental Charge) is charged to all water
service connections to cover desludging and other
environmental-related costs. It was then computed as
10% of items a, b, & c. But due to its rationalization with
the Sewerage Charge as a result of the second Rate
Rebasing, it gradually increased to where it is now 20%
of the same items and universally applied to all water
connections regardless of classification.
5. SC (Sewerage Charge) used to be 50% of items a,
b, & c and charged only to those connected to the
sewer lines. As rationalized with the Environmental
Charge, Sewerage Charge are now only applicable to
sewered connections other than residential and semi-
business classifications and has been lowered to 30%
for [Manila Water] and 20% for [Maynilad].
6. MSC (Maintenance Service Charge) depending on the
size of your meter.
7. VAT (Value Added Tax) is 12% of items 1, 2, 3, 4, 5,
& 6 (a, b, c, d, e, & f)
8. Total Current Charges I Total Amount Due
For Residential/Semi-Business Connections:
= sum of items 1, 2, 3, 4, 6 & 7 (a, b, c, d, f, & g)
For Business Groups 1 & 2 Connections:
= sum of items 1, 2, 3, 4, 5, 6 & 7 (a, b, c, d, e, f & g) [125]
Indeed, petitioners have fully and faithfully complied
with the proviso in Section 8, only in the aspect that they
are authorized under the Service Obligations under the
Agreements to impose sewerage services charges and
fees for the connection of the existing sewage line to the
141
available sewerage system.[126] They seem to forget,
however, that receipt of these fees entailed the legal duty
of actually and completely installing the already long-
delayed sewerage connections.
Finally. In April 22, 2010, petitioners further executed
their respective Memoranda of Agreement and
Confirmation (MOA), in which they bound themselves
to move the original expiry of the Agreements from May
6, 2022 to fifteen more years or to May 6, 2037. The
concessionaires specifically stipulated therein:
(f) In the rate rebasing exercise of 2008, the Parties
discussed the prospect of extending the Original Term
by fifteen (15) years as the most viable means of
enabling [Maynilad] to undertake the following:
(i) The development of new long-term water sources,
as indicated in the [Maynilad] Final Business Plan,
and the implementation of large scale water and
wastewater projects that could benefit [Maynilad]'s
customers for more than 50 years; and
(ii) The acceleration of sewerage and sanitation
projects to comply with the Clean Water Act and the
decision of the Supreme Court in the case of MMDA, et.
al. v. Concerned Residents of Manila Bay directing
MWSS 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."[127] [Emphasis supplied.]
A contradiction is extant: while there was an
acknowledgment of the urgency of their duties under
the MMDA v. Concerned Residents of Manila Bay,
Maynilad and Manila Water still found space in their
private contract to prolong compliance thereto for fifteen
more years. This Court cannot accept their highlighted
justifications therefor. As earlier pointed out, the
completion of the septage and sewerage connections
have already been lagging for fifteen years past the
effectivity of the Clean Water Act. Had petitioners
submitted to the word of the law, this extension would
not have been required, since the sewerage and septage
connection projects for which the extension is sought
could have been completed by now. There is no one else
to blame but petitioners' neglect. The public has already
suffered because of this delay, and no further extensions
could possibly be accommodated without inflicting
additional disadvantage to the already aggrieved.
More importantly, the Congress has already imposed the
deadline for the compliance by petitioners for the
construction of these sewerage connections under the
Clean Water Act. If petitioners intended an extension,
they should have sought the enactment of an amending
law to the Clean Water Act. Petitioners simply cannot
alter the law and court instruction by mere stipulation in
their private contract. Laws are repealed only by
subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom, or practice to
the contrary.[128]
Thus being stated, this Court, also laboring under the
Public Trust Doctrine, construes the MOA between
MWSS and Maynilad and the MOA between MWSS
and Manila Water as a complicit acknowledgment of
their obstinate defiance of their mandate under the Clean
Water Act. Agreeing among themselves for a 15-year
extension will not cancel their long-running liability
under Section 8 of the Clean Water Act, in relation to
Section 28 under the same law. A private contract cannot
promote business convenience to the unwarranted
disadvantage of public welfare and trust.
With all said, petitioners' assertion that the Agreements
take primacy over a special law such as the Clean Water
Act is decimated. It is thus established that Section 8 of
the Clean Water Act demands unconditional compliance,
and petitioners were utterly remiss in that duty.
           
MMDA v.
Concerne
d
Residents
of Manila
Bay did  
not repeal
Section 8
of the
Clean
Water Act
Petitioners are unrelenting and now contend that this
very same Court effectively extended the five-year
compliance period for connection of the sewage line to
the available sewerage system because of our ruling
in MMDA v. Concerned Residents of Manila Bay.[129]
Petitioners' contention misleads.
MMDA v. Concerned Residents of Manila
Bay[130] declared the role and responsibility of the
MWSS, among other government agencies, in the long-
standing and increasingly dire sanitary conditions of
Manila Bay. In the said case, the Court ruled, inter alia,
that "[a]s 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," and that it shall "submit to the
Court a quarterly progressive report of the activities
undertaken x x x".
An attempt to view this disposition in MMDA v.
Concerned Residents of Manila Bay as an extension of
the period of performance by petitioners of their
obligations under Section 8 of the Clean Water Act is a
long shot. For one, Section 8 requires petitioners or "the
agency vested to provide water supply and sewerage
facilities and/or concessionaires in Metro Manila and
other highly urbanized cities (HUCs) as defined in
Republic Act No. 7160, in coordination with LGUs, to
connect the existing sewage line found in all
subdivisions, condominiums, commercial centers, hotels,
sports and recreational facilities, hospitals, market
places, public buildings, industrial complex and other
similar establishments including households to available
sewerage system x x x" within five (5) years from
effectivity of the Clean Water Act or from May 6, 2004.
The meat of this case is the fact of delay by petitioners
in complying with the mandate under Section 8, whereas
the matter involved in MMDA v. Concerned Residents of
Manila Bay is the urgency of rehabilitation of Manila
142
Bay. Moreover, We find that citing this case militates
against petitioners. This piece of jurisprudence only
scoffs and highlights at the fact of petitioners' abject
negligence in their role in local sanitation and exposes its
nefarious consequences - adequate wastewater treatment
facilities in Metro Manila, Rizal, and Cavite was found
to be practically nonexistent which ended in the decrepit
conditions of Manila Bay, meriting the command to
construct the same "at the earliest possible time."
The Court in MMDA was simply exercising its
constitutional power and duty to interpret the law and
resolve an actual case or controversy. [131] While judicial
decisions applying or interpreting the law or the
Constitution form part of the legal system of the
Philippines,[132] the Court does not dabble in judicial
legislation[133] and is without power to amend or repeal
Section 8 of the Clean Water Act.
The Liability of Petitioners
Petitioners insist that the appellate courts erred in
affirming the Orders of the SENR as these were not
based on substantial evidence. We, however, do not find
reason to deviate from the findings of the administrative
agencies, as affirmed by the appellate courts:
x x x [T]he EMB Regional Directors for NCR,
CALABARZON and Region III took exception to the
claim of compliance by MWSS and cited the following
findings in support of their conclusion: (1) the lack of
storage treatment facilities in San Juan and Valenzuela
and the unacceptable results of the laboratory analysis of
river systems; (2) the fact that there are no wastewater
treatment facilities and appropriate sewage system in the
Cavite area, particularly in Imus, Bacoor, Noveleta and
Kawit; and (3) the absence of wastewater/sewerage
program in the Meycauayan Service Area of MWSS.
MWSS failed to introduce evidence to refute these
findings.
These were also given full credence by the PAB and the
SENR. We quote with approval apportion of the SENR's
pronouncement in its Order dated October 7, 2009:
It should further be noted that the five (5)-year period
was made to provide sufficient time to comply with the
interconnection of all water supply and sewerage
facilities. The continued failure of providing a
centralized sewerage system in compliance with the said
law means that several sewage [lines continue] to dump
and release untreated sewerage within their vicinities
resulting in unmitigated environmental pollution x x x.
[134]
Manila Water failed to present any evidence to
substantiate its claim that it had offered to connect the
existing sewage lines but the customers refused the
same. It should be pointed out that in cases where the
customers refused to connect sewage lines to the
available sewerage system Manila Water is not
precluded from enlisting the help of the DENR which, in
turn, may request LGUs or other appropriate agencies to
sanction these persons pursuant to Section 8.5 of the
IRR. x x x Manila Water failed to present any proof that
there are indeed sewage lines which were already
rendered useless. In sum, Manila Water justifications
have no probative value because it miserably failed to
present concrete and credible proof to substantiate the
same. Verily, bare allegations which are not supported
by any evidence, documentary or otherwise, are not
equivalent to proof under our rules. Ergo, the DENR-
PAB correctly declared that Manila Water's justifications
are insufficient considering that no proof or evidence
was presented to support the same.[135]
This Court, on more than one occasion, has ruled that by
reason of their special knowledge and expertise over
matters falling under their jurisdiction, administrative
agencies, like respondents PAB and the Regional Offices
of the EMB, whose judgment the SENR based its Orders
on, are in a better position to pass judgment, and their
findings of fact are generally accorded great respect, if
not finality, by the courts. Such findings ought to be
respected as long as they are supported by substantial
evidence. It is not the task of the appellate court nor of
this Court to once again weigh the evidence submitted
before and passed upon by the administrative body and
to substitute its own judgment regarding the sufficiency
of the evidence.[136]
We, however, find the computations on the fine imposed
by the court and quasi-tribunals a quo lacking. Section
28 of the Clean Water Act bears another recital of its
relevant parts:
SECTION 28. Fines, Damages and Penalties. - Unless
otherwise provided herein, any person who commits any
of the prohibited acts provided in the immediately
preceding section or violates any of the provision of this
Act or its implementing rules and regulations, shall be
fined by the Secretary, upon the recommendation of the
PAB in the amount of not less than Ten thousand
pesos (P10,000.00) nor more than Two hundred
thousand pesos (P200,000.00) for every day of
violation. The fines herein prescribed shall be
increased by ten percent (10%) every two (2) years to
compensate for inflation and to maintain the
deterrent function of such fines: Provided, That the
Secretary, upon recommendation of the PAB may order
the closure, suspension of development or construction,
or cessation of operations or, where appropriate
disconnection of water supply, until such time that
proper environmental safeguards are put in place and/or
compliance with this Act or its rules and regulations are
undertaken. This paragraph shall be without prejudice to
the issuance of an ex parte order for such closure,
suspension of development or construction, or cessation
of operations during the pendency of the case. (Emphasis
supplied.)
The SENR, as affirmed by the Court of Appeals, aptly
fined petitioners with PhP 200,000.00 a day under
Section 28, but left out the additional ten percent (10%)
increase that is to be applied every two (2) years for
inflation adjustment and deterrent purposes.
Based from the foregoing, a reassessment of petitioners'
liabilities is in order. Maynilad and Manila Water are
distinctly accountable under their respective Concession
Agreements for the fines imposed by the SENR at the
initial rate of PhP 200,000.00 a day from May 7, 2009
until date of promulgation of this Decision, in the total
amount of PhP 921,464,184.00 per concessionaire.
[137]
 MWSS shall be solidarily liable for these liabilities
for fines of its concessionaires, having bound itself to
have jurisdiction, supervision, and control over all
waterworks and sewerage systems within Metro Manila,
143
the entire province of Rizal, a portion of Cavite, and a
portion of Bulacan and for granting Maynilad and
Manila Water the right to operate the waterworks and
sewerage areas in these Service Areas. Thereafter, they
shall be fined in the amount of PhP 322,102.00 a day,
subject to the biennial 10% adjustment provided under
Section 28 until petitioners shall have fully complied
with Section 8 of the Clean Water Act. The fines shall
likewise earn legal interest of six percent (6%) per
annum from finality of this Decision until full
satisfaction thereof.[138]
WHEREFORE, the petitions are DENIED. The
Decisions of the Court of Appeals in CA-G.R. SP Nos.
113374, 112023, and 112041 respectively dated October
26, 2011, August 14, 2012, and September 25, 2012,
are AFFIRMED with the
following MODIFICATIONS -
Petitioners are liable for fines for violation of Section 8,
in relation to Section 28, of the Philippine Clean Water
Act in the following manner:
1. Maynilad Water Services, Inc. shall be jointly and
severally liable with Metropolitan Waterworks and
Sewerage System for the total amount of PhP
921,464,184.00 covering the period starting from May 7,
2009 to the date of promulgation of this Decision;
2. Manila Water Company, Inc. shall be jointly and
severally liable with Metropolitan Waterworks and
Sewerage System for the total amount of PhP
921,464,184.00 covering the period starting from May 7,
2009 to the date of promulgation of this Decision;
3. Petitioners shall pay the fines within fifteen (15) days
from finality of this Decision;
4. Thereafter, from finality of this Decision until
petitioners shall have fully paid the amounts stated in
paragraphs 1 and 2, petitioners shall be fined in the
initial amount of PhP 322,102.00 a day, subject to a
further 10% increase every two years as provided under
Section 28 of the Philippine Clean Water Act, until full
compliance with Section 8 of the same law; and
5. The total amount of the fines imposed herein shall
likewise earn legal interest of six percent (6%) per
annum from finality and until full satisfaction thereof.
This instruction further enjoins not only petitioners
herein, but all water supply and sewerage facilities
and/or concessionaires in Metro Manila and other highly
urbanized cities as defined in Republic Act No. 7160 or
the Local Government Code, in the strict compliance
with Section 8 of Republic Act No. 9275 or the
Philippine Clean Water Act.
SO ORDERED.
Bersamin, C. J., Carpio, Perlas-Bernabe, Leonen,
Caguioa, Gesmundo, Carandang, Lazaro-Javier,
and Inting, JJ., concur.
Peralta, J., no part.
Jardeleza, J., no part.
A. Reyes, Jr., J., no part.
J. Reyes, Jr., J., on leave.
SEPARATE CONCURRING OPINION
LEONEN, J.:
"Where is the ground that knows only the love of water?
Where are the passageways to your heart?"
Chingbot Cruz @conchitinabot Twitter, August 29, 2019
"How ashamed water is to be what you have made it."
Chingbot Cruz @conchitinabot Twitter, August 28, 2019
I concur in the result in the first major En Banc
ponencia of my esteemed colleague, Associate Justice
Ramon Paul L. Hernando. Petitioners should be held
liable for violating Section 8 of Republic Act No. 9275,
or the Philippine Clean Water Act.
I qualify my concurrence with my views on substantive
due process, and the public trust doctrine vis-a-vis
the parens patriae doctrine, police power, and the
regalian doctrine.
I
Petitioners claim that they were denied due process
when the Secretary of the Department of Environment
and Natural Resources found them liable and imposed a
penalty on them without the recommendation of the
Pollution Adjudication Board, as required under Section
28 of Republic Act No. 9275.[1]
Petitioners were sufficiently accorded due process. I,
however, differ from how the ponencia defined
substantive due process as "the intrinsic validity of a law
that interferes with the rights of a person to his
property."[2] Intrinsic validity of the law goes into the
wisdom of the legality of the substance of its provisions.
I maintain that substantive due process refers more to the
law's freedom from arbitrariness and unfairness. [3]
The due process clause, as enshrined in Article III,
Section 1 of the 1987 Constitution, states:
SECTION 1. No person shall be deprived of life, liberty
or property without due process of law, nor shall any
person be denied the equal protection of the laws.
In determining whether a person was accorded due
process of law, the standard is to check if the restriction
on the person's life, liberty, or property was consistent
with fairness, reason, and justice, and free from caprice
and arbitrariness. This standard applies to both
procedural and substantive due process.[4] In Legaspi v.
Cebu City:[5]
The guaranty of due process of law is a
constitutional safeguard against any arbitrariness on the
part of the Government, whether committed by the
Legislature, the Executive, or the Judiciary. It is a
protection essential to every inhabitant of the country,
for, as a commentator on Constitutional Law has vividly
written:
. . . If the law itself unreasonably deprives a person of his
life, liberty, or property, he is denied the protection of
due process. If the enjoyment of his rights is conditioned
on an unreasonable requirement, due process is likewise
144
violated. Whatsoever be the source of such rights, be it
the Constitution itself or merely a statute, its unjustified
withholding would also be a violation of due process.
Any government act that militates against the ordinary
norms of justice or fair play is considered an infraction
of the great guaranty of due process; and this is true
whether the denial involves violation merely of the
procedure prescribed by the law or affects the very
validity of the law itself.[6] (Emphasis supplied, citations
omitted)
The difference between substantive due process and
procedural due process was discussed in White Light
Corporation v. City of Manila.[7] Procedural due process
refers to the manner in which the deprivation of life,
liberty, or property was executed. The question to be
asked is whether the person was given sufficient notice
and an opportunity to be heard. Substantive due process,
on the other hand, pertains to the reason and justification
for the denial or restriction on life, liberty, or property. It
raises the question of whether such was necessary and
fair to all parties involved. In White Light Corporation:
The primary constitutional question that confronts us is
one of due process, as guaranteed under Section 1,
Article III of the Constitution. Due process evades a
precise definition. The purpose of the guaranty is to
prevent arbitrary governmental encroachment against the
life, liberty and property of individuals. The due process
guaranty serves as a protection against arbitrary
regulation or seizure. Even corporations and
partnerships are protected by the guaranty insofar as
their property is concerned.
The due process guaranty has traditionally been
interpreted as imposing two related but distinct
restrictions on government, "procedural due process"
and "substantive due process". Procedural due process
refers to the procedures that the government must follow
before it deprives a person of life, liberty, or property.
Procedural due process concerns itself with government
action adhering to the established process when it makes
an intrusion into the private sphere. Examples range
from the form of notice given to the level of formality of
a hearing.
If due process were confined solely to its procedural
aspects, there would arise absurd situation of arbitrary
government action, provided the proper formalities are
followed. Substantive due process completes the
protection envisioned by the due process clause. It
inquires whether the government has sufficient
justification for depriving a person of life, liberty, or
property.[8] (Emphasis supplied, citations omitted)
In Associated Communications & Wireless Services, Ltd.
v. Dumlao:[9]
In order to fall within the protection of this provision,
two conditions must concur, namely, that there is a
deprivation and that such deprivation is done without
proper observance of due process. When one speaks of
due process of law, a distinction must be made between
matters of procedure and matters of substance. In
essence, procedural due process "refers to the method or
manner by which the law is enforced," while substantive
due process "requires that the law itself, not merely the
procedures by which the law would be enforced, is fair,
reasonable, and just."[10] (Emphasis supplied, citations
omitted)
Thus, substantive due process looks into the justness or
fairness of the law. Jurisprudence has developed several
tests to determine whether a law is fair or just, depending
on the government act, the rights impeded by the act,
and the means used by the government to perform the
act. The tests are: (1) the rational basis test; (2) the
heightened or immediate scrutiny test; and (3) the strict
scrutiny test.
Under the rational basis test, laws or ordinances
affecting the life, liberty, or property of persons are
generally considered valid so long as it rationally
advances a legitimate government interest. Under the
heightened scrutiny test, the law or ordinance will be
deemed valid only after the government interest has been
extensively examined, and the available less restrictive
means of furthering it have been considered. Under the
strict scrutiny test, there must be a compelling
government interest, and there must be no other less
restrictive means to achieve it. Each test depends on the
right that is affected by the government act affecting the
person's life, liberty, or property. The origins of these
tests were discussed in White Light Corporation:
The general test of the validity of an ordinance on
substantive due process grounds is best tested when
assessed with the evolved footnote 4 test laid down by
the U.S. Supreme Court in U.S. v. Carolene Products.
Footnote 4 of the Carolene Products case acknowledged
that the judiciary would defer to the legislature unless
there is a discrimination against a "discrete and insular"
minority or infringement of a "fundamental right".
Consequently, two standards of judicial review were
established: strict scrutiny for laws dealing with freedom
of the mind or restricting the political process, and
the rational basis standard of review for economic
legislation.
A third standard, denominated as heightened or
immediate scrutiny, was later adopted by the U.S.
Supreme Court for evaluating classifications based on
gender and legitimacy. Immediate scrutiny was adopted
by the U.S. Supreme Court in Craig, after the Court
declined to do so in Reed v. Reed. While the test may
have first been articulated in equal protection analysis, it
has in the United States since been applied in all
substantive due process cases as well.
We ourselves have often applied the rational basis test
mainly in analysis of equal protection challenges. Using
the rational basis examination, laws or ordinances are
upheld if they rationally further a legitimate
governmental interest. Under intermediate review,
governmental interest is extensively examined and the
availability of less restrictive measures is considered.
Applying strict scrutiny, the focus is on the presence of
compelling, rather than substantial, governmental
interest and on the absence of less restrictive means for
achieving that interest.
In terms of judicial review of statutes or ordinances,
strict scrutiny refers to the standard for determining the
quality and the amount of governmental interest brought
to justify the regulation of fundamental freedoms. Strict
145
scrutiny is used today to test the validity of laws dealing
with the regulation of speech, gender, or race as well as
other fundamental rights as expansion from its earlier
applications to equal protection. The United States
Supreme Court has expanded the scope of strict scrutiny
to protect fundamental rights such as suffrage, judicial
access and interstate travel.[11] (Emphasis supplied,
citations omitted)
Thus, more than the law's intrinsic validity, substantive
due process looks into the fairness and freedom from
arbitrariness in its deprivation of life, liberty, or
property. It should not refer to any other source of
legitimacy or validity; otherwise, this Court intrudes into
the realm of the political, which is beyond our
constitutional competence.
II
I agree with this Court's adoption of the public trust
doctrine. I add some of my views and observations on
the principle.
The concept of trust in a limited government is already
real and implicit in the most fundamental concept
articulated in Article II, Section 1 of the Constitution:
SECTION 1. The Philippines is a democratic and
republican State. Sovereignty resides in the people and
all government authority emanates from them.
In light of this principle, our Constitution expressly
articulates in Article X, Section 1 of the Constitution
that:
Public office is a public trust. Public officers and
employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice,
and lead modest lives.
This provision echoes the fiduciary relation between the
government and the sovereign. Public officials, as
trustees, are expected to act with responsibility and
accountability in favor of the beneficiary. As in this case,
the beneficiary of this public trust are the people. The
trustees are held to higher standards and are liable for
violations of public trust. Their betrayal of public trust is
even considered an impeachable offense, as provided m
Article XI, Section 2 of the Constitution:
SECTION 2. The President, the Vice-President, the
Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may
be removed from office, on impeachment for, and
conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes,
or betrayal of public trust. All other public officers and
employees may be removed from office as provided by
law, but not by impeachment.
While the State's relationship with its natural resources is
not as expressly stated to be a public trust, it also flows
from the fundamental nature of a constitutional
republican state.
The constitutional provisions on national economy and
patrimony, as found in Article XII of the 1987
Constitution, emphasizes that the State's power is always
subject to the common good, public welfare, and public
interest or benefit. Many of its provisions put primacy in
favor of the State's citizens:
SECTION 1. The goals of the national economy are a
more equitable distribution of opportunities, income, and
wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the
people; and an expanding productivity as the key
to raising the quality of life for all, especially the
underprivileged.
. . . .
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 fishworkers 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.
. . . .
SECTION 3. Lands of the public domain are classified
into agricultural, forest or timber, mineral lands, and
national parks. Agricultural lands of the public domain
may be further classified by law according to the uses
which they may be devoted. Alienable lands of the
public domain shall be limited to agricultural lands.
146
Private corporations or associations may not hold such
alienable lands of the public domain except by lease, for
a period not exceeding twenty-five years, renewable for
not more than twenty-five years, and not to exceed one
thousand hectares in area. Citizens of the Philippines
may lease not more than five hundred hectares, or
acquire not more than twelve hectares thereof by
purchase, homestead, or grant.
Taking into account the requirements of conservation,
ecology, and development, and subject to the
requirements of agrarian reform, the Congress shall
determine, by law, the size of lands of the public domain
which may be acquired, developed, held, or leased and
the conditions therefor.
SECTION 4. The Congress shall, as soon as possible,
determine by law the specific limits of forest lands and
national parks, marking clearly their boundaries on the
ground. Thereafter, such forest lands and national parks
shall be conserved and may not be increased nor
diminished, except by law. The Congress shall provide,
for such period as it may determine, measures to prohibit
logging in endangered forests and watershed areas.
SECTION 5. The State, subject to the provisions of this
Constitution and national development policies and
programs, shall protect the rights of indigenous cultural
communities to their ancestral lands to ensure their
economic, social, and cultural well-being.
The Congress may provide for the applicability of
customary laws governing property rights or relations in
determining the ownership and extent of ancestral
domain.
SECTION 6. The use of property bears a social function,
and all economic agents shall contribute to the common
good. Individuals and private groups, including
corporations, cooperatives, and similar collective
organizations, shall have the right to own, establish, and
operate economic enterprises, subject to the duty of the
State to promote distributive justice and to intervene
when the common good so demands.
. . . .
SECTION 10. The Congress shall, upon
recommendation of the economic and planning agency,
when the national interest dictates, reserve to citizens of
the Philippines or to corporations or associations at least
sixty per centum of whose capital is owned by such
citizens, or such higher percentage as Congress may
prescribe, certain areas of investments. The Congress
shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly
owned by Filipinos.
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the State
shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over
foreign investments within its national jurisdiction and in
accordance with its national goals and priorities.
SECTION 11. No franchise, certificate, or any other
form of authorization for the operation of a public utility
shall be granted except to citizens of the Philippines or
to corporations or associations organized under the laws
of the Philippines at least sixty per centum of whose
capital is owned by such citizens, nor shall such
franchise, certificate, or authorization be exclusive in
character or for a longer period than fifty years. Neither
shall any such franchise or right be granted except under
the condition that it shall be subject to amendment,
alteration, or repeal by the Congress when the common
good so requires. The State shall encourage equity
participation in public utilities by the general public. The
participation of foreign investors in the governing body
of any public utility enterprise shall be limited to their
proportionate share in its capital, and all the executive
and managing officers of such corporation or association
must be citizens of the Philippines.
SECTION 12. The State shall promote the preferential
use of Filipino labor, domestic materials and locally
produced goods, and adopt measures that help make
them competitive.
SECTION 13. The State shall pursue a trade policy that
serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and
reciprocity.
SECTION 14. The sustained development of a reservoir
of national talents consisting of Filipino scientists,
entrepreneurs, professionals, managers, high-level
technical manpower and skilled workers and craftsmen
in all fields shall be promoted by the State. The State
shall encourage appropriate technology and regulate its
transfer for the national benefit.
The practice of all professions in the Philippines shall be
limited to Filipino citizens, save in cases prescribed by
law.
SECTION 15. The Congress shall create an agency to
promote the viability and growth of cooperatives as
instruments for social justice and economic
development.
SECTION 16. The Congress shall not, except by general
law, provide for the formation, organization, or
regulation of private corporations. Government-owned
or controlled corporations may be created or established
by special charters in the interest of the common
good and subject to the test of economic viability.
SECTION 17. In times of national emergency, when
the public interest so requires, the State may, during the
emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any
privately owned public utility or business affected with
public interest.
SECTION 18. The State may, in the interest of national
welfare or defense, establish and operate vital industries
and, upon payment of just compensation, transfer to
public ownership utilities and other private enterprises to
be operated by the Government.
147
SECTION 19. The State shall regulate or prohibit
monopolies when the public interest so requires. No
combinations in restraint of trade or unfair competition
shall be allowed.
. . . .
SECTION 22. Acts which circumvent or negate any of
the provisions of this Article shall be
considered inimical to the national interest and subject
to criminal and civil sanctions, as may be provided by
law. (Emphasis supplied)
These constitutional provisions on the State's national
patrimony and economy, on which the public trust
doctrine is anchored, highlight that the common good,
public interest, public welfare-the people-are of primary
consideration.
In addition, the public trust doctrine is founded on both
social justice and equity.
The people, as a community, depend and rely on their
ecology. They will not exist without it. This ecology
cannot have unlimited resources, especially in the face of
climate and environmental changes, as well as
unrestrained policies in connection with the exploitation
of resources. The public trust doctrine recognizes these
limitations and expands the concept of property, giving it
a more equitable, just, and reasonable interpretation.
Land and water are not simply owned and disposed of at
will by the State. They are part of a community and an
ecosystem, interdependent with each other.[12]
III
I note the ponencia's discussion on how the public trust
doctrine is an integration of three (3) doctrines, in which
the public interest is highlighted and the security of
people, rights, and resources is protected:[13] (1) the
regalian doctrine; (2) police power; and (3) the doctrine
of parens patriae.[14]
In my view, the public trust doctrine is firmly anchored
on the text of the Constitution. There may be no need to
situate it in the implicit concepts of the regalian doctrine
and the doctrine of parens patriae.
III (A)
The ponencia discusses that parens patriae "expresses
the inherent power and authority of the state to provide
protection of the person and property of a person non sui
juris."[15] It refers to the State "as the last-ditch provider
of protection to those unable to care and fend for
themselves."[16] The ponencia opines that the
persons non sui juris in this case are the Filipino
consumers whose welfare needs the State's protection
from overpowering business pursuits.[17]
I, however, maintain my view in Samahan ng mga
Progresibong Kabataan v. Quezon City[18] that there
must first be "harm and the subsequent inability of the
person to protect himself or herself"[19] before the
doctrine of parens patriae may be applied. It is not a
utility concept that replaces or motivates the concept of
police power.
In my separate opinion[20] in Samahan ng mga
Progresibong Kabataan, I discussed the origins of
the parens patriae doctrine, and how it has significantly
developed from its common law origins:
The doctrine of parens patriae is of Anglo-American,
common law origin. It was understood to have
"emanate[d] from the right of the Crown to protect those
of its subjects who were unable to protect themselves." It
was the King's "royal prerogative" to "take responsibility
for those without capacity to look after themselves." At
its outset, parens patriae contemplated situations where
vulnerable persons had no means to support or protect
themselves. Given this, it was the duty of the State, as
the ultimate guardian of the people, to safeguard its
citizens' welfare.
The doctrine became entrenched in the United States,
even as it gained independence and developed its own
legal tradition. In Late Corporation of Church of Jesus
Christ v. United States, the United States Supreme Court
explained parens patriae as a beneficent state power and
not an arbitrary royal prerogative:
This prerogative of parens patriae is inherent in the
supreme power of every State, whether that power is
lodged in a royal person or in the legislature, and has no
affinity to those arbitrary powers which are sometimes
exerted by irresponsible monarch to the great detriment
of the people and the destruction of their liberties. On the
contrary, it is a most beneficent function, and often
necessary to be exercised in the interest of humanity,
and for the prevention of injury to those who cannot
protect themselves. . . .
In the same case, the United States Supreme Court
emphasized that the exercise of parens patriae applies
"to the beneficiaries of charities, who are often incapable
of vindicating their rights, and justly look for protection
to the sovereign authority." It is from this reliance and
expectation of the people that a state stands as "parent of
the nation."
American colonial rule and the adoption of American
legal traditions that it entailed facilitated our own
jurisdiction's adoption of the doctrine of parens patriae.
Originally, the doctrine was understood as "the inherent
power and authority of the state to provide protection of
the person and property of a person non sui
juris."[21] (Emphasis in the original, citations omitted)
As to the protection of minors, I noted that under Article
II, Section 12 of the 1987 Constitution, parents have the
natural and primary right and duty to rear the youth. In
this instance, thus, the parens patriae doctrine must take
a step back in favor of the child's parents. The State acts
as parens patriae in protection of minors only when
there is a clear showing that they are neglected, abused,
or exploited:
The addition of the qualifier "primary" [in the provision]
unequivocally attests to the constitutional intent to afford
primacy and preeminence to parental responsibility.
More plainly stated, the Constitution now recognizes the
superiority of parental prerogative. It follows, then, that
state interventions, which are tantamount to deviations
148
from the preeminent and superior rights of parents, are
permitted only in instances where the parents themselves
have failed or have become incapable of performing
their duties.
. . . .
. . . Imbong v. Ochoa, a cased decided by this Court in
2014, unequivocally characterized parents' rights as
being "superior" to the state:
Section 12, Article II of the 1987 Constitution provides
that the natural and primary right and duty of parents in
the rearing of the youth for civic efficiency and
development of moral character shall receive the support
of the Government. Like the 1973 Constitution and the
1935 Constitution, the 1987 Constitution affirms the
State recognition of the invaluable role of parents in
preparing the youth to become productive members of
society. Notably, it places more importance on the role
of parents in the development of their children by
recognizing that said role shall be "primary," that is,
that the right of parents in upbringing the youth is
superior to that of the State. . . .
Thus, the State acts as parens patriae only when parents
cannot fulfill their role, as in cases of neglect, abuse, or
exploitation:
. . . .
As it stands, the doctrine of parens patriae is a mere
substitute or supplement to parents' authority over their
children. It operates only when parental authority is
established to be absent or grossly deficient The wisdom
underlying this doctrine considers the existence of
harm and the subsequent inability of the person to
protect himself or herself. This premise entails the
incapacity of parents and/or legal guardians to protect a
child.
To hold otherwise is to afford an overarching and almost
absolute power to the State; to allow the Government to
arbitrarily exercise its parens patriae power might as
well render the superior Constitutional right of parents
inutile.
More refined applications of this doctrine reflect this
position. In these instances where the State exercised its
powers over minors on account of parens patriae, it was
only because the children were prejudiced and it
was without subverting the authority of the parents
themselves when they have not acted in manifest offense
against the rights of their children. [22] (Emphasis in the
original, citations omitted)
I, thus, maintain my opinion that before the parens
patriae doctrine may be properly applied, there must
first be harm inflicted upon a person, and the subsequent
inability of that person to protect him or herself. It may
also only be applied if the matter is outside the scope of
the powers, right, and duty of the person charged with
protection, or if the latter is incapacitated or grossly
deficient in fulfilling his or her duty. To apply it without
these conditions is to grant an almost absolute power to
the State, allowing it to arbitrarily exercise such power
that might render the bestowed constitutional rights on
another inutile. With due respect, the reference to the
civil concept of parens patriae may not have been
accurate.
III (B)
The ponencia also cites Article XII, Section 2 of the
1987 Constitution and states that it is the embodiment
of jura regalia, or the regalian doctrine.[23]
I reiterate my opinion that the regalian doctrine is not
provided in our Constitution.[24] The regalian doctrine
provides that all lands not of private ownership belong to
the State. However, 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. . .
Since the 1987 Constitution limited the State's ownership
to lands of public domain, not all lands are presumed
public.[25] They must be part of the public domain for the
State to be deemed its owner.
Furthermore, contrary to the regalian doctrine, the due
process clause in the Constitution protects all types of
property, including those not covered by a paper title.
This protection extends to those whose ownership
resulted from possession and prescription, and to those
who hold their properties in the concept of owner since
time immemorial.[26]
In my separate opinion Heirs of Malabanan v. Republic,
[27]
 I further emphasized that the State's power over land
and resources has been tempered to recognize the rights
of the people:
We have also recognized that "time immemorial
possession of land in the concept of ownership either
through themselves or through their predecessors in
interest" suffices to create a presumption that such lands
"have been held in the same way from before the
Spanish conquest, and never to have been public land."
This is an interpretation in Cariño v. Insular
Government of the earlier version of Article III, Section
1 in the McKinley's Instructions. The case clarified that
the Spanish sovereign's concept of the "regalian
doctrine" did not extend to the American colonial period
and to the various Organic Acts extended to the
Philippines.
Thus, in Cariño:
It is true that Spain, in its earlier decrees, embodied the
universal feudal theory that all lands were held from the
Crown. . . It is true also that, in legal theory, sovereignty
is absolute, and that, as against foreign nations, the
United States may assert, as Spain asserted, absolute
power. But it does not follow that, as against the
inhabitants of the Philippines, the United States asserts
that Spain had such power. When theory is left on one
side, sovereignty is a question of strength, and may vary
in degree. How far a new sovereign shall insist upon the
theoretical relation of the subjects to the head in the
past, and how far it shall recognize actual facts, are
matters for it to decide.
149
Whatever may have been the technical position of Spain,
it does not follow that, in view of the United States,
[plaintiff who held the land as owner] had lost all rights
and was a mere trespasser when the present government
seized the land. The argument to that effect seems to
amount to a denial of native titles throughout an
important past of Luzon, at least, for the want of
ceremonies which the Spaniards would not have
permitted and had not the power to enforce.
No one, we suppose, would deny that, so far as
consistent with paramount necessities, our first object in
the internal administration of the islands is to do
justice to the natives, not to exploit their country for
private gain. By the Organic Act of July 1, 1902, c.
1369, A§ 12, 32 Stat. 691, all the property and rights
acquired there by the United States are to be
administered 'for the benefit of the inhabitants thereof.'. .
. Nothing in the public trust doctrine sets the government
. . . .
Cariño is often misinterpreted to cover only lands for
those considered today as part of indigenous cultural
communities. However, nothing in its provisions limits it
to that kind of application. We could also easily see that
the progression of various provisions on completion of
imperfect titles in earlier laws were efforts to assist in the
recognition of these rights. In my view, these statutory
attempts should never be interpreted as efforts to limit
what has already been substantially recognized through
constitutional interpretation.
Finally, as in police power, the public trust doctrine
acknowledges that the people, as a community, hold an
independent right that may be superior to private
individual rights.[30] Its objective may be to prevent
widespread public harm and injury.[31] Thus, while it may
be used to regulate private rights, all still benefit from its
application:
The public trust doctrine, viewed in this light, is a
communitarian doctrine, protecting the broader and
longer-term community interests against private
exploitation that eventually can destroy both the
community and the exploiters. . . . [U]nder the public
trust doctrine . . . individual members of a community
may have to endure shorter-term pain in order to ensure
that both they and, more importantly, the community as
a whole avoid long-term diminishment or disaster.[32]
apart from communities or individuals to be the sole
repository of that trust Indeed, as a democracy, and in
recognition of the reality that we are all beings that
depend on each other and on the web of life in this pale
blue dot in a vast universe, we are all both trustees and
beneficiaries of all natural resources, especially its
waters-without which we will cease to exist.
ACCORDINGLY, with these qualifications, I vote
to DENY the Petition.

There are also other provisions in our Constitution which

protect the unique rights of indigenous peoples. This is
in addition to our pronouncements interpreting
"property" in the due process clause through Cariño.

It is time that we put our invocations of the "regalian

doctrine" in its proper perspective. This will later on, in
the proper case, translate into practical consequences
that do justice to our people and our history.
[28]
 (Emphasis supplied, citations omitted)
The regalian doctrine emphasizes the State's ownership
of all lands, irrespective of their ecology and the people
who occupy them. The State acts as owner, exercising all
rights of ownership over it, including the jus
possidendi (right to possess), jus utendi (right to
use), jus fruendi (right to its fruits), jus abutendi (right to
consume), and jus disponendi (right to
dispose). Cariño clarified, however, that after the
Spanish occupation, all properties and rights of the State
are now "to be administered for the benefit of the
inhabitants[.][29]

This shift in perspective-from unquestionable State

ownership to the consideration of the inhabitants' rights
is affirmed by the application of the public trust doctrine.
Under the regalian doctrine, the natural resources simply
belong to the State, no qualifications. Under the public
trust doctrine, the State's resources exist and are
tempered for the benefit of the community.

III (C)

150