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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.
MR. VILLACORTA:
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
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,
Separate Opinions
# 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
Director - Environmental Management BureauRegion VII, DOE Regional Director for Region
VIII ANTONIO LABIOS, JAPAN PETROLEUM
EXPLORATION CO., LTD. (JAPEX), as
represented by its Philippine Agent, SUPPLY
OILFIELD SERVICES, INC., 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 Taon
Strait, a narrow passage of water situated between
the islands of Negros and Cebu.
2
11
13
15
18
16
JAPEX Philippines
Ltd.
c/o Atty. Maria Farah
Z.G.
Nicolas-Suchianco
21
22
24
30
Petitioners.' Allegations
Protesting the adverse ecological impact of
JAPEX's oil exploration activities in the Taon
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." Petitioners Resident Marine Mammals and
Stewards also impute the incidences of "fish
kill" 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 prerequisite to the issuance of the ECC, were not held
prior to the ECC's issuance.
31
32
barred from entering and fishing within a 7kilometer radius from the point where the oilrig was
located, an area greater than the 1.5-kilometer
radius "exclusion zone" stated in the IEE. It also
agrees in the allegation that public respondents
DENR and EMB abused their discretion when they
issued an ECC to public respondent DOE and
private respondent JAPEX without ensuring the
strict compliance with the procedural and
substantive requirements under the Environmental
Impact Assessment system, the Fisheries Code,
and their implementing rules and regulations. It
further claims that despite several requests for
copies of all the documents pertaining to the project
in Taon Strait, only copies of the P AMB-Taon
Strait Resolution and the ECC were given to the
fisherfolk.
33
34
35
ISSUES
38
Procedural Issues
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;
41
42
47
49
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 crossdefendant, 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
54
57
61
62
63
64
65
66
74
72
75
79
77
80
81
82
83
The public respondents defend the validity of SC46 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
88
91
94
95
97
98
99
100
101
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
HIERARCHY OF COURTS
II
Petitioners contend that E.O. No. 279 did not take
effect because its supposed date of effectivity came
after President Aquino had already lost her
legislative powers under the Provisional
Constitution.
And they likewise claim that the WMC FTAA, which
was entered into pursuant to E.O. No. 279, violates
Section 2, Article XII of the Constitution because,
among other reasons:
(1) It allows foreign-owned companies to
extend more than mere financial or
technical assistance to the State in the
exploitation, development, and utilization of
minerals, petroleum, and other mineral oils,
and even permits foreign owned companies
to "operate and manage mining activities."
(2) It allows foreign-owned companies to
extend both technical and financial
assistance, instead of "either technical or
financial assistance."
To appreciate the import of these issues, a visit to
the history of the pertinent constitutional provision,
the concepts contained therein, and the laws
enacted pursuant thereto, is in order.
Section 2, Article XII reads in full:
Sec. 2. All lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other natural
x x x.
The discovery of minerals in the ground by one
who has a valid mineral location perfects his claim
and his location not only against third persons, but
also against the Government. x x x. [Italics in the
original.]
The Regalian doctrine and the American system,
therefore, differ in one essential respect. Under the
Regalian theory, mineral rights are not included in a
grant of land by the state; under the American
doctrine, mineral rights are included in a grant of
land by the government.91
Section 21 also made possible the concession
(frequently styled "permit", license" or
"lease")92 system.93 This was the traditional regime
imposed by the colonial administrators for the
exploitation of natural resources in the extractive
sector (petroleum, hard minerals, timber, etc.).94
Under the concession system, the concessionaire
makes a direct equity investment for the purpose of
exploiting a particular natural resource within a
given area.95 Thus, the concession amounts to
complete control by the concessionaire over the
country's natural resource, for it is given exclusive
and plenary rights to exploit a particular resource at
the point of extraction.96 In consideration for the
right to exploit a natural resource, the
concessionaire either pays rent or royalty, which is
a fixed percentage of the gross proceeds.97
Later statutory enactments by the legislative bodies
set up in the Philippines adopted the contractual
framework of the concession.98 For instance, Act
x x x.
xxx
MR. NOLLEDO. While there are
objectionable provisions in the Article on
National Economy and Patrimony, going
over said provisions meticulously, setting
aside prejudice and personalities will reveal
that the article contains a balanced set of
provisions. I hope the forthcoming
Congress will implement such provisions
taking into account that Filipinos should
have real control over our economy and
patrimony, and if foreign equity is permitted,
the same must be subordinated to the
imperative demands of the national interest.
x x x.
It is also my understanding that service
contracts involving foreign corporations or
entities are resorted to only when no
Filipino enterprise or Filipino-controlled
enterprise could possibly undertake the
exploration or exploitation of our natural
resources and that compensation under
such contracts cannot and should not equal
what should pertain to ownership of capital.
In other words, the service contract should
not be an instrument to circumvent the
basic provision, that the exploration and
exploitation of natural resources should be
truly for the benefit of Filipinos.
DRAFT
OF
THE
UP
LAW
CONST
ITUTIO
N
PROJE
CT
PROPO
SED
RESOLU
TION
NO. 496
OF THE
CONSTI
TUTION
AL
COMMIS
SION
ARTICL
E XII
OF
THE
1987
CONST
ITUTIO
N
Sec. 1.
All
lands of
the
public
domain,
waters,
mineral
s, coal,
petroleu
m and
other
mineral
oils, all
forces
of
potentia
l
energy,
Sec. 3.
All lands
of the
public
domain,
waters,
minerals,
coal,
petroleu
m and
other
mineral
oils, all
forces of
potential
energy,
fisheries,
forests,
flora and
Sec. 2.
All
lands of
the
public
domain,
waters,
mineral
s, coal,
petroleu
m, and
other
mineral
oils, all
forces
of
potentia
l
energy,
fisherie
s, flora
and
fauna
and
other
natural
resourc
es of
the
Philippi
nes are
owned
by the
State.
With
the
excepti
on of
agricult
ural
lands,
all other
natural
resourc
es shall
not be
alienate
d. The
explorat
ion,
develop
ment
and
fauna,
and
other
natural
resource
s are
owned
by the
State.
With the
exceptio
n of
agricultur
al lands,
all other
natural
resource
s shall
not be
alienated
. The
explorati
on,
develop
ment,
and
utilization
of natural
resource
s shall
be under
the full
control
and
fisherie
s,
forests
or
timber,
wildlife,
flora
and
fauna,
and
other
natural
resourc
es are
owned
by the
State.
With
the
excepti
on of
agricult
ural
lands,
all other
natural
resourc
es shall
not be
alienate
d. The
explorat
ion,
develop
utilizatio
n of
natural
resourc
es shall
be
under
the full
control
and
supervi
sion of
the
State.
Such
activitie
s may
be
directly
underta
ken by
the
state, or
it may
enter
into coproducti
on, joint
venture,
producti
on
sharing
agreem
ents
supervisi
on of the
State.
Such
activities
may be
directly
undertak
en by the
State, or
it may
enter into
coproductio
n, joint
venture,
productio
n-sharing
agreeme
nts with
Filipino
citizens
or
corporati
ons or
associati
ons at
least
sixty per
cent of
whose
voting
stock or
controllin
ment,
and
utilizatio
n of
natural
resourc
es shall
be
under
the full
control
and
supervi
sion of
the
State.
The
State
may
directly
underta
ke such
activitie
s or it
may
enter
into coproducti
on, joint
venture,
or
producti
onsharing
with
Filipino
citizens
or
corpora
tions or
associa
tions
sixty
per cent
of
whose
voting
stock or
controlli
ng
interest
is
owned
by such
citizens
for a
period
of not
more
than
twentyfive
years,
renewa
ble for
not
more
than
g interest
is owned
by such
citizens.
Such
agreeme
nts shall
be for a
period of
twentyfive
years,
renewabl
e for not
more
than
twentyfive
years,
and
under
such
term and
condition
s as may
be
provided
by law. In
cases of
water
rights for
irrigation,
water
supply,
agreem
ents
with
Filipino
citizens,
or
corpora
tions or
associa
tions at
least
sixty
per
centum
of
whose
capital
is
owned
by such
citizens.
Such
agreem
ents
may be
for a
period
not
exceedi
ng
twentyfive
years,
renewa
twentyfive
years
and
under
such
terms
and
conditio
ns as
may be
provide
d by
law. In
case as
to water
rights
for
irrigatio
n, water
supply,
fisherie
s, or
industri
al uses
other
than the
develop
ment of
water
power,
benefici
al use
may be
fisheries
or
industrial
uses
other
than the
develop
ment for
water
power,
beneficia
l use
may be
the
measure
and limit
of the
grant.
The
Congres
s may by
law allow
smallscale
utilization
of natural
resource
s by
Filipino
citizens,
as well
as
cooperati
ble for
not
more
than
twentyfive
years,
and
under
such
terms
and
conditio
ns as
may be
provide
d by
law. In
case of
water
rights
for
irrigatio
n, water
supply,
fisherie
s, or
industri
al uses
other
than the
develop
ment of
water
the
measur
e and
limit of
the
grant.
The
Nationa
l
Assemb
ly may
by law
allow
small
scale
utilizatio
n of
natural
resourc
es by
Filipino
citizens.
The
Nationa
l
Assemb
ly, may,
by twothirds
vote of
all its
ve fish
farming
in rivers,
lakes,
bays,
and
lagoons.
The
Presiden
t with the
concurre
nce of
Congres
s, by
special
law, shall
provide
the terms
and
condition
s under
which a
foreignowned
corporati
on may
enter into
agreeme
nts with
the
governm
ent
involving
power,
benefici
al use
may be
the
measur
e and
limit of
the
grant.
The
State
shall
protect
the
nation's
marine
wealth
in its
archipel
agic
waters,
territori
al sea,
and
exclusiv
e
econom
ic zone,
and
reserve
its use
and
membe
rs by
special
law
provide
the
terms
and
conditio
ns
under
which a
foreignowned
corpora
tion
may
enter
into
agreem
ents
with the
govern
ment
involvin
g either
technic
al or
financi
al
assista
nce for
largescale
either
technica
l or
financial
assistan
ce for
largescale
explorati
on,
develop
ment,
and
utilization
of natural
resource
s.
[Emphasi
s
supplied.
]
enjoym
ent
exclusiv
ely to
Filipino
citizens.
The
Congre
ss may,
by law,
allow
smallscale
utilizatio
n of
natural
resourc
es by
Filipino
citizens,
as well
as
coopera
tive fish
farming,
with
priority
to
subsist
ence
fisherm
en and
fish-
explorat
ion,
develop
ment,
or
utilizatio
n of
natural
resourc
es.
[Empha
sis
supplie
d.]
workers
in
rivers,
lakes,
bays,
and
lagoons
.
The
Preside
nt may
enter
into
agreem
ents
with
foreignowned
corpora
tions
involvin
g either
technic
al or
financi
al
assista
nce for
largescale
explorat
ion,
develop
ment,
and
utilizatio
n of
mineral
s,
petroleu
m, and
other
mineral
oils
accordi
ng to
the
general
terms
and
conditio
ns
provide
d by
law,
based
on real
contribu
tions to
the
econom
ic
growth
and
general
welfare
of the
into in
accorda
nce
with this
provisio
n,
within
thirty
days
from its
executi
on.
xxx
(f) to construct roadways, mining, drainage,
power generation and transmission facilities
and all other types of works on the Contract
Area;
(g) to erect, install or place any type of
improvements, supplies, machinery and
other equipment relating to the Mining
Operations and to use, sell or otherwise
dispose of, modify, remove or diminish any
and all parts thereof;
(h) enjoy, subject to pertinent laws, rules
and regulations and the rights of third
Parties, easement rights and the use of
timber, sand, clay, stone, water and other
natural resources in the Contract Area
without cost for the purposes of the Mining
Operations;
xxx
(i) have the right to mortgage, charge or
encumber all or part of its interest and
obligations under this Agreement, the plant,
equipment and infrastructure and the
Minerals produced from the Mining
Operations;
x x x. 295
4. Approved environmental
protection and enhancement
program (Section 69, RA 7942)
5. Approval by the Sangguniang
Panlalawigan/Bayan/Barangay
(Section 70, RA 7942; Section 27,
RA 7160)
2. Drilling
xxxx
We do not see how applying a strictly literal
or verba legis interpretation of paragraph 4 could
inexorably lead to the conclusions arrived at in
the ponencia. First, the drafters choice of words -their use of the phrase agreements x x
xinvolving either technical or financial
assistance -- does not indicate the intent
to exclude other modes of assistance. The drafters
opted to use involving when they could have simply
said agreements for financial or technical
assistance, if that was their intention to begin with.
In this case, the limitation would be very clear and
no further debate would ensue.
xxxx
The foregoing are mere fragments of the framers
lengthy discussions of the provision dealing
with agreements x x x involving either technical or
financial assistance, which ultimately became
paragraph 4 of Section 2 of Article XII of the
Constitution. Beyond any doubt, the members of
the ConCom were actually debating about the
martial-law-eraservice contracts for which they
were crafting appropriate safeguards.
In the voting that led to the approval of Article XII by
the ConCom, the explanations given by
Commissioners Gascon, Garcia and Tadeo
indicated that they had voted to reject this provision