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By: Nastasha Dominique G. Ortiz Luis
Leslie Glenne C. Abad


Regalian Doctrine
Under the concept of Jura Regalia, the State has the capacity to own

or acquire property as part of the state's power of dominium.1


Regalian doctrine was enshrined in the 1935 Constitution.2 One of the

fixed and dominating objectives of the 1935 Constitutional Convention
was the nationalization and conservation of the natural resources of the
country.3 The 1973 Constitution also reiterated the Regalian doctrine in
Section 8, Article XIV on the National Economy and the Patrimony of the
Nation. The 1987 Constitution reaffirmed the Regalian doctrine in
Section 2 of Article XII on "National Economy and Patrimony," to wit:
Sec. 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural
lands, all other natural resources shall not be alienated. The
exploration, development and utilization of natural resources
shall be under the full control and supervision of the State. The
State may directly undertake such activities or it may enter into coproduction, 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

1 Cruz v Sec. of Environment and Natural Resources, G.R. No. 135385. Dec 6, 2000, Justice Puno,
Separate Opinion.
2 Id.
3 Id.

development of water power, beneficial use may be the measure and

limit of the grant. x x x. (Emphasis supplied.)4

Simply stated, all lands of the public domain as well as all natural
resources enumerated therein, whether on public or private land, belong
to the State.5 The provision reads that the exploration, development and
utilization of all forces of potential energy, which are considered natural
resources shall be under the full control and supervision of the State. To









exploitation, the State has effectively restricted the use of these natural
resources by imposing a limit to the allowed foreign equity. In the case of
Republic v. Judge Villanueva and Iglesia ni Kristo, Justice Teehankee
opined that the Constitutions

provision stating




corporation or association may hold alienable lands of the public domain

except by lease not to exceed one thousand hectares in area - was
adopted to guard against the undue large scale control and exploitation
of our public lands and natural resources by corporations, Filipino or

Solar Energy and Wind Energy as Renewable Energy

Solar and wind energy are natural resources of the State. They are

sources of renewable energy as defined in the Renewable Energy Act. 7

4 PHIL. CONST. Art. XII 2.

5 Id.
6 G.R. No. L-56025 November 25, 1982.
7 An Act Promoting The Development, Utilization And Commercialization Of Renewable Energy
Resources And For Other Purposes, [RENEWABLE ENERGY ACT OF 2008], Republic Act No. 9513 2

Section 4 of the Renewable Energy Act defines Renewable Energy

Resources as:
Renewable Energy Resources (RE Resources) refer to energy resources
that do not have an upper limit on the total quantity to be used. Such
resources are renewable on a regular basis, and whose renewal rate is
relatively rapid to consider availability over an indefinite period of time.
These include, among others, biomass, solar, wind, geothermal,
ocean energy, and hydropower conforming with internationally
accepted norms and standards on dams, and other emerging
renewable energy technologies. (Emphasis supplied.) 8

The exploration, development and utilization of Solar Energy and Wind

Energy are mandated to by under the full control of the state. Even
though there are no provisions in the Renewable Energy Act stating that
the ownership requirement of 60% Filipino equity and 40% foreign
ownership, it appears likely that such requirement is applicable to the
Solar Energy and Wind Energy industries.

Section 8 of the Amended

Foreign Investments Act (FIA) enumerates the investment areas reserved

for Filipino nationals. The Foreign Investments Negative Lists (FINL) are
classified as either falling on List A or List B. Under List A as updated by
Executive Order No. 98, exploration, development and utilization of
natural resources are limited up to 40% foreign equity.

Based on the foregoing discussion, it is established that the

exploration, development and utilization of Solar Energy and Wind Energy
is limited by the 60-40 equity requirements imposed by the Constitution
and by the Foreign Investments Act. However, it is interesting to note that
in the declaration of policies under Section 2 of Renewable Energy Act, it

states that it is the policy of the State to accelerate the exploration and
development of renewable energy resources. 9 Moreover, the State aims
to achieve energy self-reliance, through the adoption of sustainable
energy development strategies to reduce the country's dependence on
fossil fuels.10 Furthermore, as part of the acts declaration of policies, the










institutionalizing the development of national and local capabilities in the

use of renewable energy systems, and promoting its efficient and costeffective commercial application by providing fiscal and non-fiscal
incentives.11 Even further, the State aims to encourage the development
and utilization of renewable energy resources as tools to effectively
prevent or reduce harmful emissions and thereby balance the goals of
economic growth and development with the protection of health and the








mechanism to carry out the mandates specified in the Renewable Energy

Act and other existing laws. 12
As defined by law, renewable energy resources refer to energy
resources that do not have an upper limit on the total quantity to be used.

This means, solar and wind energy are basically infinite resources of

energy. Solar Energy refers to the energy derived from solar radiation
that can be converted into useful thermal or electrical energy. 14 Whereas,
Solar Energy Systems refer to energy systems which convert solar energy
10 Id.
11 Id.
12 Id.
14 Id.

into thermal or electrical energy.


On the other hand, Wind Energy

refers to the energy that can be derived from wind that is converted into
useful electrical or mechanical energy. 16 And Wind Energy Systems refer
to the machines or other related equipment that convert wind energy into
useful electrical or mechanical energy. 17
The electricity converted by Solar Energy Systems and Wind Energy
Systems which are to be transmitted and distributed to end users are
governed by the Electric Power Industry Reform Act of 2001 or EPIRA.
However, the generation of electricity is from solar or wind energy
systems are not regulated by the EPIRA. The government should review
the question of whether the generation of electricity through the use of
Solar and Wind Energy Systems should be limited by the Constitutions
equity requirement. If the purpose of the Constitution is to prevent the
exploitation of our natural resources, should this restriction include
renewable energy resources?


Technology and the Future of Solar Energy

It is interesting to note that the Philippines is a signatory of the 1967

Outer Space Treaty.18 Under Article II of the treaty it states that Outer
space, including the moon and other celestial bodies, is not subject to
national appropriation by claim of sovereignty, by means of use or
occupation, or by any other means. Of course it is safe to infer that outer
15 Id.
16 Id.
17 Id.
18 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610
U.N.T.S. 205 [hereinafter Outer Space Treaty].

space is outside the jurisdiction of the Philippines. Therefore our laws or

our Constitution cannot regulate the exploration, development and
utilization of

natural resources that may be found in outer space.

However, our government should also ask the question: does the
prohibition under Article II of the treaty extend to the appropriation of
cosmic rays, gases or the sun's energy, or to the collecting of mineral
samples or precious metals on the moon or other celestial bodies? 19 If and
when our country develops the technology to harness energy from the sun
in outer space, the answer to the question will be vital rather than trivial.

The concept of the regalian doctrine extends not only to the States

right to the ownership of lands but also to other natural resources such as
solar energy and wind energy. The constitution mandates that the
exploration, development, utilization be bound by the 60-40 equity







investment in the solar and wind energy industry to on 40%. The authors
of this paper would like to challenge such ownership equity limitations on
the ground that although the State has the right to limit the right to enjoy
these natural resources based on the regalia doctrine, practicality
dictates that in order to develop such industries it would be wiser to lift
the limits. Instead of imposing the equity restrictions, the State should
promote foreign investments on those industries to help renewable
energy industries to prosper and progress faster. Solar and wind energy
19 Stephen Gorove, Interpreting Article II of the Outer Space Treaty, 37 Fordham L. Rev. 349 (1969).
Available at: http://ir.lawnet.fordham.edu/flr/vol37/iss3/2

are considered renewable energy resources. This means these resources

are infinite. The States duty to conserve and preserve the use of natural
resources for Filipinos should not be applied so strictly with regard to
renewable energy resources.