Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 127882

January 27, 2004

LA BUGAL-B'LAAN TRIBAL ASSOCIATION, INC., represented by its Chairman F'LONG MIGUEL

M. LUMAYONG, WIGBERTO E. TAADA, PONCIANO BENNAGEN, JAIME TADEO, RENATO R.
CONSTANTINO, JR., F'LONG AGUSTIN M. DABIE, ROBERTO P. AMLOY, RAQIM L. DABIE,
SIMEON H. DOLOJO, IMELDA M. GANDON, LENY B. GUSANAN, MARCELO L. GUSANAN,
QUINTOL A. LABUAYAN, LOMINGGES D. LAWAY, BENITA P. TACUAYAN, minors JOLY L.
BUGOY, represented by his father UNDERO D. BUGOY, ROGER M. DADING, represented by
his father ANTONIO L. DADING, ROMY M. LAGARO, represented by his father TOTING A.
LAGARO, MIKENY JONG B. LUMAYONG, represented by his father MIGUEL M. LUMAYONG,
RENE T. MIGUEL, represented by his mother EDITHA T. MIGUEL, ALDEMAR L. SAL,
represented by his father DANNY M. SAL, DAISY RECARSE, represented by her mother LYDIA
S. SANTOS, EDWARD M. EMUY, ALAN P. MAMPARAIR, MARIO L. MANGCAL, ALDEN S.
TUSAN, AMPARO S. YAP, VIRGILIO CULAR, MARVIC M.V.F. LEONEN, JULIA REGINA CULAR,
GIAN CARLO CULAR, VIRGILIO CULAR, JR., represented by their father VIRGILIO CULAR, PAUL
ANTONIO P. VILLAMOR, represented by his parents JOSE VILLAMOR and ELIZABETH PUAVILLAMOR, ANA GININA R. TALJA, represented by her father MARIO JOSE B. TALJA,
SHARMAINE R. CUNANAN, represented by her father ALFREDO M. CUNANAN, ANTONIO
JOSE A. VITUG III, represented by his mother ANNALIZA A. VITUG, LEAN D. NARVADEZ,
represented by his father MANUEL E. NARVADEZ, JR., ROSERIO MARALAG LINGATING,
represented by her father RIO OLIMPIO A. LINGATING, MARIO JOSE B. TALJA, DAVID E. DE
VERA, MARIA MILAGROS L. SAN JOSE, SR., SUSAN O. BOLANIO, OND, LOLITA G.
DEMONTEVERDE, BENJIE L. NEQUINTO,1 ROSE LILIA S. ROMANO, ROBERTO S. VERZOLA,
EDUARDO AURELIO C. REYES, LEAN LOUEL A. PERIA, represented by his father ELPIDIO V.
PERIA,2 GREEN FORUM PHILIPPINES, GREEN FORUM WESTERN VISAYAS, (GF-WV),
ENVIRONMETAL LEGAL ASSISTANCE CENTER (ELAC), PHILIPPINE KAISAHAN TUNGO SA
KAUNLARAN NG KANAYUNAN AT REPORMANG PANSAKAHAN (KAISAHAN), 3 KAISAHAN
TUNGO SA KAUNLARAN NG KANAYUNAN AT REPORMANG PANSAKAHAN (KAISAHAN),
PARTNERSHIP FOR AGRARIAN REFORM and RURAL DEVELOPMENT SERVICES, INC. (PARRDS),
PHILIPPINE PART`NERSHIP FOR THE DEVELOPMENT OF HUMAN RESOURCES IN THE RURAL
AREAS, INC. (PHILDHRRA), WOMEN'S LEGAL BUREAU (WLB), CENTER FOR ALTERNATIVE
DEVELOPMENT INITIATIVES, INC. (CADI), UPLAND DEVELOPMENT INSTITUTE (UDI),
KINAIYAHAN FOUNDATION, INC., SENTRO NG ALTERNATIBONG LINGAP PANLIGAL
(SALIGAN), LEGAL RIGHTS AND NATURAL RESOURCES CENTER, INC. (LRC), petitioners,
vs.
VICTOR O. RAMOS, SECRETARY, DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES (DENR), HORACIO RAMOS, DIRECTOR, MINES AND GEOSCIENCES BUREAU (MGBDENR), RUBEN TORRES, EXECUTIVE SECRETARY, and WMC (PHILIPPINES), INC.4 respondents.

DECI SI ON
CARPIO-MORALES, J.:
The present petition for mandamus and prohibition assails the constitutionality of Republic Act
No. 7942,5otherwise known as the PHILIPPINE MINING ACT OF 1995, along with the
Implementing Rules and Regulations issued pursuant thereto, Department of Environment and
Natural Resources (DENR) Administrative Order 96-40, and of the Financial and Technical
Assistance Agreement (FTAA) entered into on March 30, 1995 by the Republic of the
Philippines and WMC (Philippines), Inc. (WMCP), a corporation organized under Philippine
laws.
On July 25, 1987, then President Corazon C. Aquino issued Executive Order (E.O.) No.
279 6 authorizing the DENR Secretary to accept, consider and evaluate proposals from foreignowned corporations or foreign investors for contracts or agreements involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
which, upon appropriate recommendation of the Secretary, the President may execute with
the foreign proponent. In entering into such proposals, the President shall consider the real
contributions to the economic growth and general welfare of the country that will be realized,
as well as the development and use of local scientific and technical resources that will be
promoted by the proposed contract or agreement. Until Congress shall determine otherwise,
large-scale mining, for purpose of this Section, shall mean those proposals for contracts or
agreements for mineral resources exploration, development, and utilization involving a
committed capital investment in a single mining unit project of at least Fifty Million Dollars in
United States Currency (US $50,000,000.00).7
On March 3, 1995, then President Fidel V. Ramos approved R.A. No. 7942 to "govern the
exploration, development, utilization and processing of all mineral resources." 8 R.A. No. 7942
defines the modes of mineral agreements for mining operations,9 outlines the procedure for
their filing and approval,10 assignment/transfer 11and withdrawal,12 and fixes their
terms.13 Similar provisions govern financial or technical assistance agreements. 14
The law prescribes the qualifications of contractors 15 and grants them certain rights, including
timber,16 water 17and easement18 rights, and the right to possess explosives.19 Surface owners,
occupants, or concessionaires are forbidden from preventing holders of mining rights from
entering private lands and concession areas.20 A procedure for the settlement of conflicts is
likewise provided for.21
The Act restricts the conditions for exploration,22 quarry23 and other 24 permits. It regulates the
transport, sale and processing of minerals,25 and promotes the development of mining
communities, science and mining technology,26 and safety and environmental protection.27

The government's share in the agreements is spelled out and allocated, 28 taxes and fees are
imposed,29incentives granted.30 Aside from penalizing certain acts,31 the law likewise specifies
grounds for the cancellation, revocation and termination of agreements and permits.32
On April 9, 1995, 30 days following its publication on March 10, 1995 in Malaya and Manila
Times, two newspapers of general circulation, R.A. No. 7942 took effect. 33 Shortly before the
effectivity of R.A. No. 7942, however, or on March 30, 1995, the President entered into an
FTAA with WMCP covering 99,387 hectares of land in South Cotabato, Sultan Kudarat, Davao
del Sur and North Cotabato.34
On August 15, 1995, then DENR Secretary Victor O. Ramos issued DENR Administrative Order
(DAO) No. 95-23, s. 1995, otherwise known as the Implementing Rules and Regulations of R.A.
No. 7942. This was later repealed by DAO No. 96-40, s. 1996 which was adopted on December
20, 1996.
On January 10, 1997, counsels for petitioners sent a letter to the DENR Secretary demanding
that the DENR stop the implementation of R.A. No. 7942 and DAO No. 96-40,35 giving the DENR
fifteen days from receipt36 to act thereon. The DENR, however, has yet to respond or act on
petitioners' letter.37
Petitioners thus filed the present petition for prohibition and mandamus, with a prayer for a
temporary restraining order. They allege that at the time of the filing of the petition, 100 FTAA
applications had already been filed, covering an area of 8.4 million hectares, 38 64 of which
applications are by fully foreign-owned corporations covering a total of 5.8 million hectares,
and at least one by a fully foreign-owned mining company over offshore areas.39
Petitioners claim that the DENR Secretary acted without or in excess of jurisdiction:
I x x x in signing and promulgating DENR Administrative Order No. 96 -40 implementing
Republic Act No. 7942, the latter being unconstitutional in that it allows fully foreign owned
corporations to explore, develop, utilize and exploit mineral resources in a manner contrary to
Section 2, paragraph 4, Article XII of the Constitution;
II x x x in signing and promulgating DENR Administrative Order No. 96 -40 implementing
Republic Act No. 7942, the latter being unconstitutional in that it allows the taking of private
property without the determination of public use and for just compensation;
III x x x in signing and promulgating DENR Administrative Order No. 96 -40 implementing
Republic Act No. 7942, the latter being unconstitutional in that it violates Sec. 1, Art. III of the
Constitution;
IV x x x in signing and promulgating DENR Administrative Order No. 96 -40 implementing
Republic Act No. 7942, the latter being unconstitutional in that it allows enjoyment by foreign

citizens as well as fully foreign owned corporations of the nation's marine wealth contrary to
Section 2, paragraph 2 of Article XII of the Constitution;
V x x x in signing and promulgating DENR Administrative Order No. 96 -40 implementing
Republic Act No. 7942, the latter being unconstitutional in that it allows priority to foreign and
fully foreign owned corporations in the exploration, development and utilization of mineral
resources contrary to Article XII of the Constitution;
VI x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing
Republic Act No. 7942, the latter being unconstitutional in that it allows the inequitable
sharing of wealth contrary to Sections [sic] 1, paragraph 1, and Section 2, paragraph 4[,]
[Article XII] of the Constitution;
VII x x x in recommending approval of and implementing the Financial and Technical Assistance
Agreement between the President of the Republic of the Philippines and Western Mining
Corporation Philippines Inc. because the same is illegal and unconstitutional. 40
They pray that the Court issue an order:
(a) Permanently enjoining respondents from acting on any application for Financial or
Technical Assistance Agreements;
(b) Declaring the Philippine Mining Act of 1995 or Republic Act No. 7942 as
unconstitutional and null and void;
(c) Declaring the Implementing Rules and Regulations of the Philippine Mining Act
contained in DENR Administrative Order No. 96-40 and all other similar
administrative issuances as unconstitutional and null and void; and
(d) Cancelling the Financial and Technical Assistance Agreement issued to Western
Mining Philippines, Inc. as unconstitutional, illegal and null and void. 41
Impleaded as public respondents are Ruben Torres, the then Executive Secretary, Victor O.
Ramos, the then DENR Secretary, and Horacio Ramos, Director of the Mines and Geosciences
Bureau of the DENR. Also impleaded is private respondent WMCP, which entered into the
assailed FTAA with the Philippine Government. WMCP is owned by WMC Resources
International Pty., Ltd. (WMC), "a wholl y owned subsidiary of Western Mining Corporation
Holdings Limited, a publicly listed major Australian mining and exploration company." 42 By
WMCP's information, "it is a 100% owned subsidiary of WMC LIMITED." 43
Respondents, aside from meeting petitioners' contentions, argue that the requisites for judicial
inquiry have not been met and that the petition does not comply with the criteria for

prohibition and mandamus. Additionally, respondent WMCP argues that there has been a
violation of the rule on hierarchy of courts.
After petitioners filed their reply, this Court granted due course to the petition. The parties
have since filed their respective memoranda.

Of the above-enumerated seven grounds cited by petitioners, as will be shown later, only the
first and the last need be delved into; in the latter, the discussion shall dwell only ins ofar as it
questions the effectivity of E. O. No. 279 by virtue of which order the questioned FTAA was
forged.
I

WMCP subsequently filed a Manifestation dated September 25, 2002 alleging that on January
23, 2001, WMC sold all its shares in WMCP to Sagittarius Mines, Inc. (Sagittarius), a
corporation organized under Philippine laws.44 WMCP was subsequently renamed "Tampakan
Mineral Resources Corporation."45 WMCP claims that at least 60% of the equity of Sagittarius
is owned by Filipinos and/or Filipino-owned corporations while about 40% is owned by
Indophil Resources NL, an Australian company.46 It further claims that by such sale and transfer
of shares, "WMCP has ceased to be connected in any way with WMC." 47
By virtue of such sale and transfer, the DENR Secretary, by Order of December 18,
2001,48 approved the transfer and registration of the subject FTAA from WMCP to Sagittarius.
Said Order, however, was appealed by Lepanto Consolidated Mining Co. (Lepanto) to the
Office of the President which upheld it by Decision of July 23, 2002. 49Its motion for
reconsideration having been denied by the Office of the President by Resolution of November
12, 2002,50 Lepanto filed a petition for review51 before the Court of Appeals. Incidentally, two
other petitions for review related to the approval of the transfer and registration of the FTAA
to Sagittarius were recently resolved by this Court.52
It bears stressing that this case has not been rendered moot either by the transfer and
registration of the FTAA to a Filipino-owned corporation or by the non-issuance of a temporary
restraining order or a preliminary injunction to stay the above-said July 23, 2002 decision of
the Office of the President.53 The validity of the transfer remains in dispute and awaits final
judicial determination. This assumes, of course, that such transfer cures the FTAA's alleged
unconstitutionality, on which question judgment is reserved.
WMCP also points out that the original claimowners of the major mineralized areas included in
the WMCP FTAA, namely, Sagittarius, Tampakan Mining Corporation, and Southcot Mining
Corporation, are all Filipino-owned corporations,54 each of which was a holder of an approved
Mineral Production Sharing Agreement awarded in 1994, albeit their respective mineral claims
were subsumed in the WMCP FTAA;55 and that these three companies are the same companies
that consolidated their interests in Sagittarius to whom WMC sold its 100% equity in
WMCP.56 WMCP concludes that in the event that the FTAA is invalidated, the MPSAs of the
three corporations would be revived and the mineral claims would revert to their original
claimants.57
These circumstances, while informative, are hardly significant in the resolution of this case, it
involving the validity of the FTAA, not the possible consequences of its invalidation.

Before going into the substantive issues, the procedural questions posed by respondents shall
first be tackled.
REQUISITES FOR JUDICIAL REVIEW
When an issue of constitutionality is raised, this Court can exercise its power of judicial review
only if the following requisites are present:
(1) The existence of an actual and appropriate case;
(2) A personal and substantial interest of the party raising the constitutional
question;
(3) The exercise of judicial review is pleaded at the earliest opportunity; and
(4) The constitutional question is the lis mota of the case. 58
Respondents claim that the first three requisites are not present.
Section 1, Article VIII of the Constitution states that "(j)udicial power includes the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable
and enforceable." The power of judicial review, therefore, is limited to the determination of
actual cases and controversies.59
An actual case or controversy means an existing case or controversy that is appropriate or ripe
for determination, not conjectural or anticipatory, 60 lest the decision of the court would
amount to an advisory opinion.61 The power does not extend to hypothetical questions 62 since
any attempt at abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities.63
"Legal standing" or locus standi has been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged,64alleging more than a generalized grievance.65 The
gist of the question of standing is whether a party alleges "such personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the presentation of

issues upon which the court depends for illumination of difficult constitutional
questions."66Unless a person is injuriously affected in any of his constitutional rights by the
operation of statute or ordinance, he has no standing. 67

presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions." (Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 633 [1962].)
As earlier stated, petitioners meet this requirement.

Petitioners traverse a wide range of sectors. Among them are La Bugal B'laan Tribal
Association, Inc., a farmers and indigenous people's cooperative organized under Philippine
laws representing a community actually affected by the mining activities of WMCP, members
of said cooperative,68 as well as other residents of areas also affected by the mining activities
of WMCP.69 These petitioners have standing to raise the constitutionality of the questioned
FTAA as they allege a personal and substantial injury. They claim that they would suffer
"irremediable displacement"70 as a result of the implementation of the FTAA allowing WMCP
to conduct mining activities in their area of residence. They thus meet the appropriate case
requirement as they assert an interest adverse to that of respondents who, on the other hand,
insist on the FTAA's validity.
In view of the alleged impending injury, petitioners also have standing to assail the validity of
E.O. No. 279, by authority of which the FTAA was executed.
Public respondents maintain that petitioners, being strangers to the FTAA, cannot sue either or
both contracting parties to annul it.71 In other words, they contend that petitioners are not
real parties in interest in an action for the annulment of contract.
Public respondents' contention fails. The present action is not merely one for annulment of
contract but for prohibition and mandamus. Petitioners allege that public respondents acted
without or in excess of jurisdiction in implementing the FTAA, which they submit is
unconstitutional. As the case involves constitutional questions, this Court is not concerned
with whether petitioners are real parties in interest, but with whether they have legal
standing. As held in Kilosbayan v. Morato:72
x x x. "It is important to note . . . that standing because of its constitutional and public policy
underpinnings, is very different from questions relating to whether a particular plaintiff is the
real party in interest or has capacity to sue. Although all three requirements are directed
towards ensuring that only certain parties can maintain an action, standing restrictions require
a partial consideration of the merits, as well as broader policy concerns relating to the proper
role of the judiciary in certain areas.["] (FRIEDENTHAL, KANE AND MILLER, CIVIL PROCEDURE
328 [1985])
Standing is a special concern in constitutional law because in some cases suits are brought not
by parties who have been personally injured by the operation of a law or by official action
taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest.
Hence, the question in standing is whether such parties have "alleged such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which sharpens the

The challenge against the constitutionality of R.A. No. 7942 and DAO No. 96-40 likewise fulfills
the requisites of justiciability. Although these laws were not in force when the subject FTAA
was entered into, the question as to their validity is ripe for adjudication.
The WMCP FTAA provides:
14.3 Future Legislation
Any term and condition more favourable to Financial &Technical Assista nce Agreement
contractors resulting from repeal or amendment of any existing law or regulation or from the
enactment of a law, regulation or administrative order shall be considered a part of this
Agreement.
It is undisputed that R.A. No. 7942 and DAO No. 96-40 contain provisions that are more
favorable to WMCP, hence, these laws, to the extent that they are favorable to WMCP, govern
the FTAA.
In addition, R.A. No. 7942 explicitly makes certain provisions apply to pre-existing agreements.
SEC. 112. Non-impairment of Existing Mining/Quarrying Rights. x x x That the provisions of
Chapter XIV on government share in mineral production-sharing agreement and of Chapter XVI
on incentives of this Act shall immediately govern and apply to a mining lessee or contrac tor
unless the mining lessee or contractor indicates his intention to the secretary, in writing, not to
avail of said provisions x x x Provided, finally, That such leases, production-sharing agreements,
financial or technical assistance agreements shall comply with the applicable provisions of this
Act and its implementing rules and regulations.
As there is no suggestion that WMCP has indicated its intention not to avail of the provisions
of Chapter XVI of R.A. No. 7942, it can safely be presumed that they apply to the WMCP FTAA.
Misconstruing the application of the third requisite for judicial review that the exercise of the
review is pleaded at the earliest opportunity WMCP points out that the petition was filed
only almost two years after the execution of the FTAA, hence, not raised at the earliest
opportunity.
The third requisite should not be taken to mean that the question of constitutionality must be
raised immediately after the execution of the state action complained of. That the question of

constitutionality has not been raised before is not a valid reason for refusing to allow it to be
raised later.73 A contrary rule would mean that a law, otherwise unconstitutional, would lapse
into constitutionality by the mere failure of the proper party to promptly file a case to
challenge the same.

issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction,
such concurrence does not give a party unrestricted freedom of choice of court forum. The
resort to this Court's primary jurisdiction to issue said writs shall be allowed only where the
redress desired cannot be obtained in the appropriate courts or where exceptional and
compelling circumstances justify such invocation. We held in People v. Cuaresma that:

PROPRIETY OF PROHIBITION AND MANDAMUS

Before the effectivity in July 1997 of the Revised Rules of Civil Procedure, Section 2 of Rule 65
read:
SEC. 2. Petition for prohibition. When the proceedings of any tribunal, corporation, board, or
person, whether exercising functions judicial or ministerial, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion, 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 defendant to desist from further proceeding in the
action or matter specified therein.
Prohibition is a preventive remedy.74 It seeks a judgment ordering the defendant to desist
from continuing with the commission of an act perceived to be illegal. 75
The petition for prohibition at bar is thus an appropriate remedy. While the execution of the
contract itself may be fait accompli, its implementation is not. Public respondents, in behalf of
the Government, have obligations to fulfill under said contract. Petitioners seek to prevent
them from fulfilling such obligations on the theory that the contract is unconstitutional and,
therefore, void.
The propriety of a petition for prohibition being upheld, discussion of the propriety of the
mandamus aspect of the petition is rendered unnecessary.
HIERARCHY OF COURTS
The contention that the filing of this petition violated the rule on hierarchy of courts does not
likewise lie. The rule has been explained thus:
Between two courts of concurrent original jurisdiction, it is the lower court that should initially
pass upon the issues of a case. That way, as a particular case goes through the hierarchy of
courts, it is shorn of all but the important legal issues or those of first impression, which are
the proper subject of attention of the appellate court. This is a procedural rule borne of
experience and adopted to improve the administration of justice.
This Court has consistently enjoined litigants to respect the hierarchy of courts. Although this
Court has concurrent jurisdiction with the Regional Trial Courts and the Court of Appeals to

A becoming regard for judicial hierarchy most certainly indicates that petitions for the issuance
of extraordinary writs against first level ("inferior") courts should be filed with the Regional
Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the
Supreme Court's original jurisdiction to issue these writs should be allowed only where there
are special and important reasons therefor, clearly and specifically set out in the petition. This
is established policy. It is a policy necessary to prevent inordinate demands upon the Court's
time and attention which are better devoted to those matters within its exclusive jurisdiction,
and to prevent further over-crowding of the Court's docket x x x.76 [Emphasis supplied.]
The repercussions of the issues in this case on the Philippine mining industry, if not the
national economy, as well as the novelty thereof, constitute exceptional and compelling
circumstances to justify resort to this Court in the first instance.
In all events, this Court has the discretion to take cognizance of a suit whi ch does not satisfy
the requirements of an actual case or legal standing when paramount public interest is
involved.77 When the issues raised are of paramount importance to the public, this Court may
brush aside technicalities of procedure.78
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, a nd 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 resources are owned by the State. With the exception of a gricultural lands, all
other natural resources shall not be alienated. The exploration, development, and utilization of
natural resources shall be under the full control and supervision of the State. The State may
directly undertake such activities or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or associations at least
sixty per centum of whose capital is owned by such citizens. Such agreements may be for a
period not exceeding twenty-five years, renewable for not more than twenty-five years, and
under such terms and conditions as may be provided by law. In cases of water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water
power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens,
as well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in
rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either
technical or financial assistance for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth and general welfare of
the country. In such agreements, the State shall promote the development and use of local
scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution.
THE SPANISH REGIME AND THE REGALIAN DOCTRINE
The first sentence of Section 2 embodies the Regalian doctrine or jura regalia. Introduced by
Spain into these Islands, this feudal concept is based on the State's power of dominium, which
is the capacity of the State to own or acquire property. 79
In its broad sense, the term "jura regalia" refers to royal rights, or those rights which the King
has by virtue of his prerogatives. In Spanish law, it refers to a right which the sovereign has
over anything in which a subject has a right of property or propriedad. These were rights
enjoyed during feudal times by the king as the sovereign.

The theory of the feudal system was that title to all lands was originally held by the King, and
while the use of lands was granted out to others who were permitted to hold them under
certain conditions, the King theoretically retained the title. By fiction of law, the King was
regarded as the original proprietor of all lands, and the true and only source of title, and from
him all lands were held. The theory of jura regalia was therefore nothing more than a natural
fruit of conquest.80
The Philippines having passed to Spain by virtue of discovery and conquest,81 earlier Spanish
decrees declared that "all lands were held from the Crown." 82
The Regalian doctrine extends not only to land but also to "all natural wealth that may be
found in the bowels of the earth."83 Spain, in particular, recognized the unique value of natural
resources, viewing them, especially minerals, as an abundant source of revenue to finance its
wars against other nations.84 Mining laws during the Spanish regime reflected this
perspective.85
THE AMERICAN OCCUPATION AND THE CONCESSION REGIME
By the Treaty of Paris of December 10, 1898, Spain ceded "the archipelago known as the
Philippine Islands" to the United States. The Philippines was hence governed by means of
organic acts that were in the nature of charters serving as a Cons titution of the occupied
territory from 1900 to 1935.86 Among the principal organic acts of the Philippines was the Act
of Congress of July 1, 1902, more commonly known as the Philippine Bill of 1902, through
which the United States Congress assumed the administration of the Philippine
Islands.87 Section 20 of said Bill reserved the disposition of mineral lands of the public domain
from sale. Section 21 thereof allowed the free and open exploration, occupation and purchase
of mineral deposits not only to ci tizens of the Philippine Islands but to those of the United
States as well:
Sec. 21. That all valuable mineral deposits in public lands in the Philippine Islands, both
surveyed and unsurveyed, are hereby declared to be free and open to exploration, occupation
and purchase, and the land in which they are found, to occupation and purchase, by citizens of
the United States or of said Islands: Provided, That when on any lands in said Islands entered
and occupied as agricultural lands under the provisions of thi s Act, but not patented, mineral
deposits have been found, the working of such mineral deposits is forbidden until the person,
association, or corporation who or which has entered and is occupying such lands shall have
paid to the Government of said Islands such additional sum or sums as will make the total
amount paid for the mineral claim or claims in which said deposits are located equal to the
amount charged by the Government for the same as mineral claims.
Unlike Spain, the United States considered natural resources as a source of wealth for its
nationals and saw fit to allow both Filipino and American citizens to explore and exploit
minerals in public lands, and to grant patents to private mineral lands. 88 A person who

acquired ownership over a parcel of private mineral land pursuant to the laws then prevailing
could exclude other persons, even the State, from exploiting minerals within his
property.89Thus, earlier jurisprudence90 held that:
A valid and subsisting location of mineral land, made and kept up in accordance with the
provisions of the statutes of the United States, has the effect of a grant by the United States of
the present and exclusive possession of the lands located, and this exclusive right of
possession and enjoyment continues during the entire life of the location. x x x.
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 conc essionaire
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 No. 2932,99 approved on August
31, 1920, which provided for the exploration, location, and lease of lands containing
petroleum and other mineral oils and gas in the Philippines, and Act No. 2719, 100 approved on
May 14, 1917, which provided for the leasing and development of coal lands in the Philippines,
both utilized the concession system.101
THE 1935 CONSTITUTION AND THE NATIONALIZATION OF NATURAL RESOURCES
By the Act of United States Congress of March 24, 1934, popularly known as the Tydings McDuffie Law, the Peopl e of the Philippine Islands were authorized to adopt a

constitution.102 On July 30, 1934, the Constitutional Convention met for the purpose of
drafting a constitution, and the Constitution subsequently drafted was approved by the
Convention on February 8, 1935.103 The Constitution was submitted to the President of the
United States on March 18, 1935.104 On March 23, 1935, the President of the United States
certified that the Constitution conformed substantially with the provisions of the Act of
Congress approved on March 24, 1934.105On May 14, 1935, the Constitution was ratified by
the Filipino people.106
The 1935 Constitution adopted the Regalian doctrine, declaring all natural resources of the
Philippines, including mineral lands and minerals, to be property belonging to the State.107 As
adopted in a republican system, the medieval concept of jura regalia is stripped of royal
overtones and ownership of the land is vested in the State. 108
Section 1, Article XIII, on Conservation and Utilization of Natural Resources, of the 1935
Constitution provided:
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 a t
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, 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 nationalization and conservation of the natural resources of the country was one of the
fixed and dominating objectives of the 1935 Constitutional Convention. 109 One delegate
relates:
There was an overwhelming sentiment in the Convention in favor of the principle of state
ownership of natural resources and the adoption of the Regalian doctrine. State ownership of
natural resources was seen as a necessary starting point to secure recognition of the state's
power to control their disposition, exploitation, development, or utilization. The delegates of
the Constitutional Convention very well knew that the concept of State ownership of land and
natural resources was introduced by the Spaniards, however, they were not certain whether it
was continued and applied by the Americans. To remove all doubts, the Convention approved
the provision in the Constitution affirming the Regalian doctrine.

The adoption of the principle of state ownership of the natural resources and of the Regalian
doctrine was considered to be a necessary starting point for the plan of nationalizing and
conserving the natural resources of the country. For with the establishment of the principle of
state ownership of the natural resources, it would not be hard to secure the recognition of the
power of the State to control their disposition, exploitation, development or utilization. 110
The nationalization of the natural resources was intended (1) to insure their conservation for
Filipino posterity; (2) to serve as an instrument of national defense, helping prevent the
extension to the country of foreign control through peaceful economic penetration; and (3) to
avoid making the Philippines a source of international conflicts with the consequent danger to
its internal security and independence.111
The same Section 1, Article XIII also adopted the concession system, expressly permitting the
State to grant licenses, concessions, or leases for the exploitation, development, or utilization
of any of the natural resources. Grants, however, were limited to Filipinos or entities at least
60% of the capital of which is owned by Filipinos.lawph!l.ne+
The swell of nationalism that suffused the 1935 Constitution was radically diluted when on
November 1946, the Parity Amendment, which came in the form of an "Ordinance Appended
to the Constitution," was ratified in a plebiscite. 112 The Amendment extended, from July 4,
1946 to July 3, 1974, the right to utilize and exploit our natural resources to citizens of the
United States and business enterprises owned or controlled, directly or indirectly, by citizens
of the United States:113
Notwithstanding the provision of section one, Article Thirteen, and section eight, Article
Fourteen, of the foregoing Constitution, during the effectivity of the Executive Agreement
entered into by the President of the Philippines with the President of the United States on the
fourth of July, nineteen hundred and forty-six, pursuant to the provisions of Commonwealth
Act Numbered Seven hundred and thirty-three, but in no case to extend beyond the third of
July, nineteen hundred and seventy-four, the disposition, exploitation, development, and
utilization of all agricultural, timber, and mineral lands of the public domain, waters, minerals,
coals, petroleum, and other mineral oils, all forces and sources of potential energy, and other
natural resources of the Philippines, and the operation of public utilities, shall, if open to any
person, be open to citizens of the United States and to all forms of business enterprise owned
or controlled, directly or indirectly, by citizens of the United States in the same manner as to,
and under the same conditions imposed upon, citizens of the Philippines or corporations or
associations owned or controlled by citizens of the Philippines.
The Parity Amendment was subsequently modified by the 1954 Revised Trade Agreement, also
known as the Laurel-Langley Agreement, embodied in Republic Act No. 1355. 114
THE PETROLEUM ACT OF 1949 AND THE CONCESSION SYSTEM

In the meantime, Republic Act No. 387,115 also known as the Petroleum Act of 1949, was
approved on June 18, 1949.
The Petroleum Act of 1949 employed the concession system for the exploitation of the
nation's petroleum resources. Among the kinds of concessions it sanctioned were exploration
and exploitation concessions, which respectively granted to the concessionaire the exclusive
right to explore for 116 or develop117 petroleum within specified areas.
Concessions may be granted only to duly qualified persons 118 who have sufficient finances,
organization, resources, technical competence, and skills necessary to conduct the operations
to be undertaken.119
Nevertheless, the Government reserved the right to undertake such work itself. 120 This
proceeded from the theory that all natural deposits or occurrences of petroleum or natural gas
in public and/or private lands in the Philippines belong to the State. 121 Exploration and
exploitation concessions did not confer upon the concessionaire ownership over the
petroleum lands and petroleum deposits.122 However, they did grant concessionaires the right
to explore, develop, exploit, and utilize them for the period and under the conditions
determined by the law.123
Concessions were granted at the complete risk of the concessionaire; the Government did not
guarantee the existence of petroleum or undertake, in any case, title warranty. 124
Concessionaires were required to submit information as maybe required by the Secretary of
Agriculture and Natural Resources, including reports of geological and geophysical
examinations,
as
well
as
production
reports.125 Exploration126 and
127
exploitation concessionaires were also required to submit work programs.lavvphi1.net
Exploitation concessionaires, in particular, were obliged to pay an annual exploitation
tax,128 the object of which is to induce the concessionaire to actually produce petroleum, and
not simply to sit on the concession without developing or exploiting it. 129 These
concessionaires were also bound to pay the Government royalty, which was not less than
12% of the petroleum produced and saved, less that consumed in the operations of the
concessionaire.130 Under Article 66, R.A. No. 387, the exploitation tax may be credited against
the royalties so that if the concessionaire shall be actually producing enough oil, it would not
actually be paying the exploitation tax.131
Failure to pay the annual exploitation tax for two consecutive years, 132 or the royalty due to
the Government within one year from the date it becomes due, 133 constituted grounds for the
cancellation of the concession. In case of delay in the payment of the taxes or royalty imposed
by the law or by the concession, a surcharge of 1% per month is exacted until the same are
paid.134

As a rule, title rights to all equipment and structures that the concessionaire placed on the
land belong to the exploration or exploitation concessionaire. 135 Upon termination of such
concession, the concessionaire had a right to remove the same. 136
The Secretary of Agriculture and Natural Resources was tasked with carrying out the provisions
of the law, through the Director of Mines, who acted under the Secretary's immediate
supervision and control.137 The Act granted the Secretary the authority to inspect any
operation of the concessionaire and to examine all the books and accounts pertaining to
operations or conditions related to payment of taxes and royalties. 138
The same law authorized the Secretary to create an Administration Unit and a Technical
Board.139 The Administration Unit was charged, inter alia, with the enforcement of the
provisions of the law.140 The Technical Board had, among other functions, the duty to check on
the performance of concessionaires and to determine whether the obligations imposed by the
Act and its implementing regulations were being complied with.141
Victorio Mario A. Dimagiba, Chief Legal Officer of the Bureau of Energy Development, analyzed
the benefits and drawbacks of the concession system insofar as it applied to the petroleum
industry:
Advantages of Concession. Whether it emphasizes income tax or royalty, the most positive
aspect of the concession system is that the State's financial involvement is virtually risk free
and administration is simple and comparatively low in cost. Furthermore, if ther e is a
competitive allocation of the resource leading to substantial bonuses and/or greater royalty
coupled with a relatively high level of taxation, revenue accruing to the State under the
concession system may compare favorably with other financial arrangements.
Disadvantages of Concession. There are, however, major negative aspects to this system.
Because the Government's role in the traditional concession is passive, it is at a distinct
disadvantage in managing and developing policy for the nation's petroleum resource. This is
true for several reasons. First, even though most concession agreements contain covenants
requiring diligence in operations and production, this establishes only an indirect and passive
control of the host country in resource development. Second, and more importantly, the fact
that the host country does not directly participate in resource management decisions inhibits
its ability to train and employ its nationals in petroleum development. This factor could delay
or prevent the country from effectively engaging in the development of its resources. Lastly, a
direct role in management is usually necessary in order to obtain a knowledge of the
international petroleum industry which is important to an appreciation of the host country's
resources in relation to those of other countries.142

x x x there are functional implications which give the concessionaire great economic power
arising from its exclusive equity holding. This includes, first, appropriation of the returns of the
undertaking, subject to a modest royalty; second, exclusive management of the project; third,
control of production of the natural resource, such as volume of production, expansion,
research and development; and fourth, exclusive responsibility for downstream operations,
like processing, marketing, and distribution. In short, even if nominally, the state is the
sovereign and owner of the natural resource being exploited, it has been shorn of all elements
of control over such natural resource because of the exclusive nature of the contractual
regime of the concession. The concession system, investing as it does ownership of natural
resources, constitutes a consistent inconsistency with the principle embodied in our
Constitution that natural resources belong to the state and shall not be alienated, not to
mention the fact that the concession was the bedrock of the colonial system in the
exploitation of natural resources.143
Eventually, the concession system failed for reasons explained by Dimagiba:
Notwithstanding the good intentions of the Petroleum Act of 1949, the concession system
could not have properly spurred sustained oil exploration activities in the country, since it
assumed that such a capital-intensive, high risk venture could be successfully undertaken by a
single individual or a small company. In effect, concessionaires' funds were easily exhausted.
Moreover, since the concession system practically closed its doors to interested foreign
investors, local capital was stretched to the limits. The old system also failed to consider the
highly sophisticated technology and expertise required, which would be available only to
multinational companies.144
A shift to a new regime for the development of natural resources thus seemed imminent.
PRESIDENTIAL DECREE NO. 87, THE 1973 CONSTITUTION AND THE SERVICE CONTRACT
SYSTEM
The promulgation on December 31, 1972 of Presidential Decree No. 87, 145 otherwise known as
The Oil Exploration and Development Act of 1972 signaled such a transformation. P.D. No. 87
permitted the government to explore for and produce indigenous petroleum through "service
contracts."146
"Service contracts" is a term that assumes varying meanings to different people, and it has
carried many names in different countries, like "work contracts" in Indonesia, "concession
agreements" in Africa, "production-sharing agreements" in the Middle East, and "participation
agreements" in Latin America.147 A functional definition of "service contracts" in the
Philippines is provided as follows:

Other liabilities of the system have also been noted:

A service contract is a contractual arrangement for engaging in the exploitation and
development of petroleum, mineral, energy, land and other natural resources by which a

government or its agency, or a private person granted a right or privilege by the government
authorizes the other party (service contractor) to engage or participate in the exercise of such
right or the enjoyment of the privilege, in that the latter provides financial or technical
resources, undertakes the exploitation or production of a given resource, or directly manages
the productive enterprise, operations of the exploration and exploitation of the resources or
the disposition of marketing or resources.148
In a service contract under P.D. No. 87, service and technology are furnished by the service
contractor for which it shall be entitled to the stipulated service fee.149 The contractor must be
technically competent and financially capable to undertake the operations required in the
contract.150
Financing is supposed to be provided by the Government to which all petroleum produced
belongs.151 In case the Government is unable to finance petroleum exploration operations, the
contractor may furnish services, technology and financing, and the proceeds of sale of the
petroleum produced under the contract shall be the source of funds for payment of the
service fee and the operating expenses due the contractor.152 The contractor shall undertake,
manage and execute petroleum operations, subject to the government overseeing the
management of the operations.153 The contractor provides all necessary services and
technology and the requisite financing, performs the exploration work obligations, and
assumes all exploration risks such that if no petroleum is produced, it will not be entitled to
reimbursement.154 Once petroleum in commercial quantity is discovered, the contractor shall
operate the field on behalf of the government.155
P.D. No. 87 prescribed minimum terms and conditions for every service contract. 156 It also
granted the contractor certain privileges, including exemption from taxes and payment of
tariff duties,157 and permitted the repatriation of capital and retention of profits abroad. 158
Ostensibly, the service contract system had certain advantages over the concession
regime.159 It has been opined, though, that, in the Philippines, our concept of a service
contract, at least in the petroleum industry, was basically a concession regime with a
production-sharing element.160
On January 17, 1973, then President Ferdinand E. Marcos proclaimed the ratification of a new
Constitution.161Article XIV on the National Economy and Patrimony contained provisions
similar to the 1935 Constitution with regard to Filipino participation in the nation's natural
resources. Section 8, Article XIV thereof provides:
Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils,
all forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines
belong to the State. With the exception of agricultural, industrial or commercial, residential
and resettlement lands of the public domain, natural resources shall not be alienated, and no
license, concession, or lease for the exploration, development, exploitation, or utilization of

any of the natural resources shall be granted for a period exceeding twenty-five years,
renewable for not more than 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.
While Section 9 of the same Article maintained the Filipino-only policy in the enjoyment of
natural resources, it also allowed Filipinos, upon authority of the Batasang Pambansa, to enter
into service contracts with any person or entity for the exploration or utilization of natural
resources.
Sec. 9. The disposition, exploration, development, exploitation, or utilization of any of the
natural resources of the Philippines shall be limited to citizens, or to corporations or
associations at least sixty per centum 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 person or entity for the exploration, or utilization of any of the natural resources.
Existing valid and binding service contracts for financial, technical, management, or other
forms of assistance are hereby recognized as such. [Emphasis supplied.]
The concept of service contracts, according to one delegate, was borrowed from the methods
followed by India, Pakistan and especially Indonesia in the exploration of petroleum and
mineral oils.162 The provision allowing such contracts, according to another, was intended to
"enhance the proper development of our natural resources since Filipino citizens lack the
needed capital and technical know-how which are essential in the proper exploration,
development and exploitation of the natural resources of the country." 163
The original idea was to authorize the government, not private entities, to enter into service
contracts with foreign entities.164 As finally approved, however, a citizen or private entity could
be allowed by the National Assembly to enter into such service contract.165 The prior approval
of the National Assembly was deemed sufficient to protect the national interest. 166 Notably,
none of the laws allowing service contracts were passed by the Batasang Pambansa. Indeed,
all of them were enacted by presidential decree.
On March 13, 1973, shortly after the ratification of the new Constitution, the President
promulgated Presidential Decree No. 151.167 The law allowed Filipino citizens or entities which
have acquired lands of the public domain or which own, hold or control such lands to enter
into service contracts for financial, technical, management or other forms of assistance with
any foreign persons or entity for the exploration, development, exploitation or utilization of
said lands.168
Presidential Decree No. 463,169 also known as The Mineral Resources Development Decree of
1974, was enacted on May 17, 1974. Section 44 of the decree, as amended, provided that a
lessee of a mining claim may enter into a service contract with a qualified domestic or foreign

contractor for the exploration, development and exploitation of his claims and the processing
and marketing of the product thereof.
Presidential Decree No. 704 170 (The Fisheries Decree of 1975), approved on May 16, 1975,
allowed Filipinos engaged in commercial fishing to enter into contracts for financial, technical
or other forms of assistance with any foreign person, corporation or entity for the production,
storage, marketing and processing of fish and fi shery/aquatic products.171

The third sentence of the same paragraph is new: "The exploration, development and
utilization of natural resources shall be under the full control and supervision of the State."
The constitutional policy of the State's "full control and supervision" over natural resources
proceeds from the concept of jura regalia, as well as the recognition of the importance of the
country's natural resources, not only for national economic development, but also for its
security and national defense.178 Under this provision, the State assumes "a more dynamic
role" in the exploration, development and utilization of natural resources. 179

Presidential Decree No. 705 172 (The Revised Forestry Code of the Philippines), approved on
May 19, 1975, allowed "forest products licensees, lessees, or permitees to enter into service
contracts for financial, technical, management, or other forms of assistance . . . with any
foreign person or entity for the exploration, development, exploitation or utilization of the
forest resources."173

Conspicuously absent in Section 2 is the provision in the 1935 and 1973 Constitutions
authorizing the State to grant licenses, concessions, or leases for the exploration, exploitation,
development, or utilization of natural resources. By such omission, the utilization of
inalienable lands of public domain through "license, concession or lease" is no longer allowed
under the 1987 Constitution.180

Yet another law allowing service contracts, this time for geothermal resources, was
Presidential Decree No. 1442,174 which was signed into law on June 11, 1978. Section 1 thereof
authorized the Government to enter into service contracts for the exploration, exploitation
and development of geothermal resources with a foreign contractor who must be technically
and financially capable of undertaking the operations required in the service contract.

Having omitted the provision on the concession system, Section 2 proceeded to introduce
"unfamiliar language":181
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.

Thus, virtually the entire range of the country's natural resources from petroleum and
minerals to geothermal energy, from public lands and forest resources to fishery products
was well covered by apparent legal authority to engage in the direct participation or
involvement of foreign persons or corporations (otherwise disqualified) in the exploration and
utilization of natural resources through service contracts.175

Consonant with the State's "full supervision and control" over natural resources, Section 2
offers the State two "options."182 One, the State may directly undertake these activities itself;
or two, it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or entities at least 60% of whose capital is owned by such citizens.

THE 1987 CONSTITUTION AND TECHNICAL OR FINANCIAL ASSISTANCE AGREEMENTS

A third option is found in the third paragraph of the same section:

After the February 1986 Edsa Revolution, Corazon C. Aquino took the reins of power under a
revolutionary government. On March 25, 1986, President Aquino issued Proclamation No.
3,176 promulgating the Provisional Constitution, more popularly referred to as the Freedom
Constitution. By authority of the same Proclamation, the President created a Constitutional
Commission (CONCOM) to draft a new constitution, which took effect on the date of its
ratification on February 2, 1987.177

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 1987 Constitution retained the Regalian doctrine. The first sentence of Section 2, Article
XII states: "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."
Like the 1935 and 1973 Constitutions before it, the 1987 Constitution, in the second sentence
of the same provision, prohibits the alienation of natural resources, except agricultural lands.

While the second and third options are limited only to Filipino citizens or, in the case of the
former, to corporations or associations at least 60% of the capi tal of which is owned by
Filipinos, a fourth allows the participation of foreign-owned corporations. The fourth and fifth
paragraphs of Section 2 provide:
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 wel fare 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.

minerals. The omission in the 1987 Constitution of the term "service contracts"
notwithstanding, the said E.O. still referred to them in Section 2 thereof:

Although Section 2 sanctions the participation of foreign-owned corporations in the

exploration, development, and utilization of natural resources, it imposes certain limitations or
conditions to agreements with such corporations.

Sec. 2. Applications for the exploration, development and utilization of mineral resources,
including renewal applications and applications for approval of operating agreements and
mining service contracts, shall be accepted and processed and may be approved x x x.
[Emphasis supplied.]

First, the parties to FTAAs. Only the President, in behalf of the State, may enter into
these agreements, and only with corporations. By contrast, under the 1973
Constitution, a Filipino citizen, corporation or association may enter into a service
contract with a "foreign person or entity."
Second, the size of the activities: only large-scale exploration, development, and
utilization is allowed. The term "large-scale usually refers to very capital -intensive
activities."183
Third, the natural resources subject of the activities is restricted to minerals,
petroleum and other mineral oils, the intent being to limit service contracts to those
areas where Filipino capital may not be sufficient. 184
Fourth, consistency with the provisions of statute. The agreements must be in
accordance with the terms and conditions provided by law.
Fifth, Section 2 prescribes certain standards for entering into such agreements. The
agreements must be based on real contributions to economic growth and general
welfare of the country.

The same law provided in its Section 3 that the "processing, evaluation and approval of all
mining applications . . . operating agreements and service contracts . . . shall be governed by
Presidential Decree No. 463, as amended, other existing mining laws, and their implementing
rules and regulations. . . ."
As earlier stated, on the 25th also of July 1987, the President issued E.O. No. 279 by authority
of which the subject WMCP FTAA was executed on March 30, 1995.
On March 3, 1995, President Ramos signed into law R.A. No. 7942. Section 15 thereof declares
that the Act "shall govern the exploration, development, utilization, and processing of all
mineral resources." Such declaration notwithstanding, R.A. No. 7942 does not actually cover
all the modes through which the State may undertake the exploration, development, and
utilization of natural resources.
The State, being the owner of the natural resources, is accorded the primary power and
responsibility in the exploration, development and utilization thereof. As such, it may
undertake these activities through four modes:
The State may directly undertake such activities.

Sixth, the agreements must contain rudimentary stipulations for the promotion of
the development and use of local scientific and technical resources.
Seventh, the notification requirement. The President shall notify Congress of every
financial or technical assistance agreement entered into within thirty days from its
execution.
Finally, the scope of the agreements. While the 1973 Constitution referred to "service
contracts for financial, technical, management, or other forms of assistance" the
1987 Constitution provides for "agreements. . . involving either financial or technical
assistance." It bears noting that the phrases "service contracts" and "management or
other forms of assistance" i n the earlier constitution have been omitted.
By virtue of her legislative powers under the Provisional Constitution, 185 President Aquino, on
July 10, 1987, signed into law E.O. No. 211 prescribing the interim procedures in the
processing and approval of applications for the exploration, development and utilization of

(2) The State may enter into co-production, joint venture or production-sharing
agreements with Filipino citizens or qualified corporations.
(3) Congress may, by law, allow small-scale utilization of natural resources by Filipino
citizens.
(4) For the large-scale exploration, development and utilization of minerals,
petroleum and other mineral oils, the President may enter into agreements with
foreign-owned corporations involving technical or financial assistance. 186
Except to charge the Mines and Geosciences Bureau of the DENR with performing researches
and surveys,187and a passing mention of government-owned or controlled corporations,188 R.A.
No. 7942 does not specify how the State should go about the first mode. The third mode, on
the other hand, is governed by Republic Act No. 7076 189 (the People's Small-Scale Mining Act

of 1991) and other pertinent laws.190 R.A. No. 7942 primarily concerns itself with the second
and fourth modes.
Mineral production sharing, co-production and joint venture agreements are collectively
classified by R.A. No. 7942 as "mineral agreements."191 The Government participates the least
in a mineral production sharing agreement (MPSA). In an MPSA, the Government grants the
contractor192 the exclusive right to conduct mining operations within a contract area 193 and
shares in the gross output.194 The MPSA contractor provides the financing, technology,
management and personnel necessary for the agreement's implementation. 195 The total
government share in an MPSA is the excise tax on mineral products under Republic Act No.
7729,196 amending Section 151(a) of the National Internal Revenue Code, as amended. 197
In a co-production agreement (CA),198 the Government provides inputs to the mining
operations other than the mineral resource,199 while in a joint venture agreement (JVA), where
the Government enjoys the greatest participation, the Government and the JVA contractor
organize a company with both parties having equity shares.200 Aside from earnings in equity,
the Government in a JVA is also entitled to a share in the gross output.201 The Government
may enter into a CA202 or JVA203 with one or more contractors. The Government's share in a CA
or JVA is set out in Section 81 of the law:
The share of the Government in co-production and joint venture agreements shall be
negotiated by the Government and the contractor taking into consideration the: (a) capital
investment of the project, (b) the risks involved, (c) contribution of the project to the
economy, and (d) other factors that will provide for a fair and equitable sharing between the
Government and the contractor. The Government shall also be entitled to compensations for
its other contributions which shall be agreed upon by the parties, and shall consist, among
other things, the contractor's income tax, excise tax, special allowance, withholding tax due
from the contractor's foreign stockholders arising from dividend or interest payments to the
said foreign stockholders, in case of a foreign national and all such other taxes, duties and fees
as provided for under existing laws.
All mineral agreements grant the respective contractors the exclusive right to conduct mining
operations and to extract all mineral resources found in the contract area. 204 A "qualified
person" may enter into any of the mineral agreements with the Government.205 A "qualified
person" is
any citizen of the Philippines with capacity to contract, or a corporation, partnership,
association, or cooperative organized or authorized for the purpose of engaging in mining,
with technical and financial capability to undertake mineral resources development and duly
registered in accordance with law at least sixty per centum (60%) of the capital of which is
owned by citizens of the Philippines x x x.206

The fourth mode involves "financial or technical assistance agreements." An FTAA is defined as
"a contract involving financial or technical assistance for large-scale exploration, development,
and utilization of natural resources."207 Any qualified person with technical and financial
capability to undertake large-scale exploration, development, and utilization of natural
resources in the Philippines may enter into such agreement directly with the Government
through the DENR.208 For the purpose of granting an FTAA, a legally organized foreign-owned
corporation (any corporation, partnership, association, or cooperative duly registered in
accordance with law in which less than 50% of the capital is owned by Filipino citizens) 209 is
deemed a "qualified person."210
Other than the difference in contractors' qualifications, the principal distinction between
mineral agreements and FTAAs is the maximum contract area to which a qualified person may
hold or be granted.211 "Large-scale" under R.A. No. 7942 is determined by the size of the
contract area, as opposed to the amount invested (US $50,000,000.00), which was the
standard under E.O. 279.
Like a CA or a JVA, an FTAA is subject to negotiation.212 The Government's contributions, in the
form of taxes, in an FTAA is identical to its contributions in the two mineral agreements, save
that in an FTAA:
The collection of Government share in financial or technical assistance agreement shall
commence after the financial or technical assistance agreement contractor has fully recovered
its pre-operating expenses, exploration, and development expenditures, inclusive. 213
III
Having examined the history of the constitutional provision and statutes enacted pursuant
thereto, a consideration of the substantive issues presented by the petition is now in order.
THE EFFECTIVITY OF EXECUTIVE ORDER NO. 279
Petitioners argue that E.O. No. 279, the law in force when the WMC FTAA was executed, did
not come into effect.
E.O. No. 279 was signed into law by then President Aquino on July 25, 1987, two days before
the opening of Congress on July 27, 1987.214 Section 8 of the E.O. states that the same "shall
take effect immediately." This provision, according to petitioners, runs counter to Section 1 of
E.O. No. 200,215 which provides:
SECTION 1. Laws shall take effect after fifteen days following the completion of their
publication either in the Official Gazette or in a newspaper of general circulation in the
Philippines, unless it is otherwise provided.216[Emphasis supplied.]

On that premise, petitioners contend that E.O. No. 279 could have only taken effect fifteen
days after its publication at which time Congress had already convened and the President's
power to legislate had ceased.
Respondents, on the other hand, counter that the validity of E.O. No. 279 was settled in
Miners Association of the Philippines v. Factoran, supra. This is of course incorrect for the issue
in Miners Association was not the validity of E.O. No. 279 but that of DAO Nos. 57 and 82
which were issued pursuant thereto.

Sec. 6. The incumbent President shall continue to exercise legislative powers until the firs t
Congress is convened.
The convening of the first Congress merely precluded the exercise of legislative powers by
President Aquino; it did not prevent the effectivity of laws she had previously enacted.
There can be no question, therefore, that E.O. No. 279 is an effective, and a validly enacted,
statute.

Nevertheless, petitioners' contenti ons have no merit.

THE CONSTITUTIONALITY OF THE WMCP FTAA

It bears noting that there is nothing in E.O. No. 200 that prevents a law from taking effect on a
date other than even before the 15-day period after its publication. Where a law provides
for its own date of effectivity, such date prevails over that prescribed by E.O. No. 200. Indeed,
this is the very essence of the phrase "unless it is otherwise provided" in Section 1 thereof.
Section 1, E.O. No. 200, therefore, applies only when a statute does not provide for its own
date of effectivity.

Petitioners submit that, in accordance with the text of Section 2, Article XII of the Constitution,
FTAAs should be limited to "technical or financial assistance" only. They observe, however,
that, contrary to the language of the Constitution, the WMCP FTAA allows WMCP, a fully
foreign-owned mining corporation, to extend more than mere financial or technical assistance
to the State, for it permits WMCP to manage and operate every aspect of the mining
activity. 222

What is mandatory under E.O. No. 200, and what due process requires, as this Court held in
Taada v. Tuvera,217 is the publication of the law for without such notice and publication, there
would be no basis for the application of the maxim "ignoranti a legis n[eminem] excusat." It
would be the height of injustice to punish or otherwise burden a citizen for the transgression
of a law of which he had no notice whatsoever, not even a constructive one.

Petitioners' submission is well-taken. It is a cardinal rule in the interpretation of constitutions

that the instrument must be so construed as to give effect to the intention of the people who
adopted it.223 This intention is to be sought in the constitution itself, and the apparent meaning
of the words is to be taken as expressing it, except in cases where that assumption would lead
to absurdity, ambiguity, or contradiction.224 What the Constitution says according to the text of
the provision, therefore, compels acceptance and negates the power of the courts to alter it,
based on the postulate that the framers and the people mean what they say. 225 Accordingly,
following the literal text of the Constitution, a ssistance accorded by foreign-owned
corporations in the large-scale exploration, development, and utilization of petroleum,
minerals and mineral oils should be limited to "technical" or "financial" assistance only.

While the effectivity clause of E.O. No. 279 does not require its publication, it is not a ground
for its invalidation since the Constitution, being "the fundamental, paramount and supreme
law of the nation," is deemed written in the law.218 Hence, the due process clause,219 which, so
Taada held, mandates the publication of statutes, is read into Section 8 of E.O. No. 279.
Additionally, Section 1 of E.O. No. 200 which provides for publication "either in the Official
Gazette or in a newspaper of general circulation in the Philippines," finds suppletory
application. It is significant to note that E.O. No. 279 was actually published in the Official
Gazette220 on August 3, 1987.
From a reading then of Section 8 of E.O. No. 279, Section 1 of E.O. No. 200, and Taada v.
Tuvera, this Court holds that E.O. No. 279 became effective immediately upon its publication
in the Official Gazette on August 3, 1987.
That such effectivity took place after the convening of the first Congress is irrelevant. At the
time President Aquino issued E.O. No. 279 on July 25, 1987, she was s till validly exercising
legislative powers under the Provisional Constitution.221 Article XVIII (Transitory Provisions) of
the 1987 Constitution explicitly states:

WMCP nevertheless submits that the word "technical" in the fourth paragraph of Section 2 of
E.O. No. 279 encompasses a "broad number of possible services," perhaps, "scientific and/or
technological in basis."226 It thus posits that it may also well include "the area of management
or operations . . . so long as such assistance requires specialized knowledge or skills, and are
related to the exploration, development and utilization of mineral resources." 227
This Court is not persuaded. As priorly pointed out, the phrase "management or other forms of
assistance" in the 1973 Constitution was deleted in the 1987 Constitution, which allows only
"technical or financial assistance." Casus omisus pro omisso habendus est. A person, object or
thing omitted from an enumeration must be held to have been omitted intentionally.228 As will
be shown later, the management or operation of mining activities by foreign contractors,
which is the primary feature of service contracts, was precisely the evil that the drafters of the
1987 Constitution sought to eradicate.

Respondents insist that "agreements involving technical or financial assistance" is just another
term for service contracts. They contend that the proceedings of the CONCOM indicate "that
although the terminology 'service contract' was avoided [by the Consti tution], the concept it
represented was not." They add that "[t]he concept is embodied in the phrase 'agreements
involving financial or technical assistance.'"229 And point out how members of the CONCOM
referred to these agreements as "service contracts." For instance:
SR. TAN. Am I correct in thinking that the only difference between these future
service contracts and the past service contracts under Mr. Marcos is the general law
to be enacted by the legislature and the notification of Congress by the Pres ident?
That is the only difference, is it not?
MR. VILLEGAS. That is right.
SR. TAN. So those are the safeguards[?]
MR. VILLEGAS. Yes. There was no law at all governing service contracts before.
SR. TAN. Thank you, Madam President.230 [Emphasis supplied.]
WMCP also cites the following statements of Commissioners Gascon, Garcia, Nolledo
and Tadeo who alluded to service contracts as they explained their respective votes
in the approval of the draft Article:
MR. GASCON. Mr. Presiding Officer, I vote no primarily because of two reasons: One,
the provision on service contracts. I felt that if we would constitutionalize any
provision on service contracts, this should always be with the concurrence of
Congress and not guided only by a general law to be promulgated by Congress. x x
x.231 [Emphasis supplied.]
x x x.
MR. GARCIA. Thank you.
I vote no. x x x.
Service contracts are given constitutional legitimization in Section 3, even when they
have been proven to be inimical to the interests of the nation, providing as they do
the legal loophole for the exploitation of our natural resources for the benefit of
foreign interests. They constitute a serious negation of Filipino control on the use and
disposition of the nation's natural resources, especially with regard to those which
are nonrenewable.232 [Emphasis supplied.]

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.
Thank you, and I vote yes.233 [Emphasis supplied.]
x x x.
MR. TADEO. Nais ko lamang ipaliwanag ang aking boto.
Matapos suriin ang kalagayan ng Pilipinas, ang saligang suliranin, pangunahin ang
salitang "imperyalismo." Ang ibig sabihin nito ay ang sistema ng lipunang
pinaghaharian ng iilang monopolyong kapitalista at ang salitang "imperyalismo" ay
buhay na buhay sa National Economy and Patrimony na nating ginawa. Sa
pamamagitan ng salitang "based on," naroroon na ang free trade sapagkat tayo ay
mananatiling tagapagluwas ng hilaw na sangkap at tagaangkat ng yaring produkto.
Pangalawa, naroroon pa rin ang parity rights, ang service contract, ang 60-40 equity
sa natural resources. Habang naghihirap ang sambayanang Pilipino, ginagalugad
naman ng mga dayuhan ang ating likas na yaman. Kailan man ang Article on National
Economy and Patrimony ay hindi nagpaalis sa pagkaal ipin ng ating ekonomiya sa
kamay ng mga dayuhan. Ang solusyon sa suliranin ng bansa ay dalawa lamang: ang
pagpapatupad ng tunay na reporma sa lupa at ang national industrialization. Ito ang
tinatawag naming pagsikat ng araw sa Silangan. Ngunit ang mga landlords and big
businessmen at ang mga komprador ay nagsasabi na ang free trade na ito, ang
kahulugan para sa amin, ay ipinipilit sa ating sambayanan na ang araw ay sisikat sa
Kanluran. Kailan man hindi puwedeng sumikat ang araw sa Kanluran. I vote
no.234 [Emphasis supplied.]

This Court is likewise not persuaded.

As earlier noted, the phrase "service contracts" has been deleted in the 1987 Constitution's
Article on National Economy and Patrimony. If the CONCOM intended to retain the concept of
service contracts under the 1973 Constitution, it could have simply adopted the old
terminology ("service contracts") instead of employing new and unfamiliar terms
("agreements . . . involving either technical or financial assistance"). Such a difference between
the language of a provision in a revised constitution and that of a similar provision in the
preceding constitution is viewed as indicative of a difference in purpose. 235 If, as respondents
suggest, the concept of "technical or financial assistance" agreements is identical to that of
"service contracts," the CONCOM would not have bothered to fit the same dog with a new
collar. To uphold respondents' theory would reduce the first to a mere euphemism for the
second and render the change in phraseology meaningless.
An examination of the reason behind the change confirms that technical or financial assistance
agreements are not synonymous to service contracts.
[T]he Court in construing a Constitution should bear in mind the object sought to be
accomplished by its adopti on, and the evils, if any, sought to be prevented or remedied. A
doubtful provision will be examined in light of the history of the times, and the condition and
circumstances under which the Constitution was framed. The object is to ascertain the reason
which induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to make the
words consonant to that reason and calculated to effect that purpose. 236
As the following question of Commissioner Quesada and Commissioner Villegas' answer shows
the drafters intended to do away with service contracts which were used to circumvent the
capitalization (60%-40%) requirement:
MS. QUESADA. The 1973 Constitution used the words "service contracts." In this
particular Section 3, is there a safeguard against the possible control of foreign
interests if the Filipinos go into coproduction with them?
MR. VILLEGAS. Yes. In fact, the deletion of the phrase "service contracts" was our first
attempt to avoid some of the abuses in the past regime in the use of service
contracts to go around the 60-40 arrangement. The safeguard that has been
introduced and this, of course can be refined is found in Section 3, lines 25 to 30,
where Congress will have to concur with the President on any agreement entered
into between a foreign-owned corporation and the government involving technical or
financial assistance for large-scale exploration, development and utilization of natural
resources.237 [Emphasis supplied.]

In a subsequent discussion, Commissioner Villegas allayed the fears of Commissioner

Quesada regarding the participation of foreign interests in Philippine natural
resources, which was supposed to be restricted to Filipinos.
MS. QUESADA. Another point of clarification is the phrase "and utilization of natural
resources shall be under the full control and supervision of the State." In the 1973
Constitution, this was limited to citizens of the Philippines; but it was removed and
substituted by "shall be under the full control and supervision of the State." Was the
concept changed so that these particular resources would be limited to citizens of the
Philippines? Or would these resources only be under the full control and supervision
of the State; meaning, noncitizens would have access to these natural resources? Is
that the understanding?
MR. VILLEGAS. No, Mr. Vice-President, if the Commissioner reads the next sentence,
it states:
Such activities may be directly undertaken by the State, or it may enter into co-production,
joint venture, production-sharing agreements with Filipino citizens.
So we are still limiting it only to Filipino citizens.
x x x.
MS. QUESADA. Going back to Section 3, the section suggests that:
The exploration, development, and utilization of natural resources may be directly
undertaken by the State, or it may enter into co-production, joint venture or productionsharing agreement with . . . corporations or associations at least sixty per cent of whose voting
stock or controlling interest is owned by such citizens.
Lines 25 to 30, on the other hand, suggest that in the large-scale exploration, development and
utilization of natural resources, the President with the concurrence of Congress may enter into
agreements with foreign-owned corporations even for technical or financial assistance.
I wonder if this part of Section 3 contradicts the second part. I am raising this point for fear
that foreign investors will use their enormous capital resources to facilitate the ac tual
exploitation or exploration, development and effective disposition of our natural resources to
the detriment of Filipino investors. I am not saying that we should not consider borrowing
money from foreign sources. What I refer to is that foreign interest should be allowed to
participate only to the extent that they lend us money and give us technical assistance with
the appropriate government permit. In this way, we can insure the enjoyment of our natural
resources by our own people.

MR. VILLEGAS. Actually, the second provision about the President does not permit foreign
investors to participate. It is only technical or financial assistance they do not own anything
but on conditions that have to be determined by law with the concurrence of Congress. So, it
is very restrictive.

Thank you.239 [Emphasis supplied.]

If the Commissioner will remember, this removes the possibility for service contracts which we
said yesterday were avenues used in the previous regime to go around the 60 -40
requirement.238 [Emphasis supplied.]

Paragraph 4 of Section 2 specifies large-scale, capital-intensive, highly technological

undertakings for which the President may enter into contracts with foreign-owned
corporations, and enunciates strict conditions that should govern such contracts. x x x.

The present Chief Justice, then a member of the CONCOM, also referred to this limitation in
scope in proposing an amendment to the 60-40 requirement:

This provision balances the need for foreign capital and technology with the need to maintain
the national sovereignty. It recognizes the fact that as long as Filipinos can formulate their own
terms in their own territory, there is no danger of relinquishing sovereignty to foreign
interests.

MR. DAVIDE. May I be allowed to explain the proposal?

MR. MAAMBONG. Subject to the three-minute rule, Madam President.
MR. DAVIDE. It will not take three minutes.
The Commission had just approved the Preamble. In the Preamble we clearly stated that the
Filipino people are sovereign and that one of the objectives for the creation or establishment
of a government is to conserve and develop the national patrimony. The implication is that the
national patrimony or our natural resources are exclusively reserved for the Filipino people. No
alien must be allowed to enjoy, exploit and develop our natural resources. As a matter of fact,
that principle proceeds from the fact that our natural resources are gifts from God to the
Filipino people and it would be a breach of that special blessing from God if we will allow
aliens to exploit our natural resources.
I voted in favor of the Jamir proposal because it is not really exploitation that we granted to
the alien corporations but only for them to render financial or technical assistance. It is not for
them to enjoy our natural resources. Madam President, our natural resources are depleting;
our population is increasing by leaps and bounds. Fifty years from now, if we will allow these
aliens to exploit our natural resources, there will be no more natural resources for the next
generations of Filipinos. It may last long if we will begin now. Since 1935 the aliens have been
allowed to enjoy to a certain extent the exploitation of our natural resources, and we became
victims of foreign dominance and control. The aliens are interested in coming to the
Philippines because they would like to enjoy the bounty of nature exclusively intended for
Filipinos by God.
And so I appeal to all, for the sake of the future generations, that if we have to pray in the
Preamble "to preserve and develop the national patrimony for the sovereign Filipino people
and for the generations to come," we must at this time decide once and for all that our natural
resources must be reserved only to Filipino citizens.

The opinion of another member of the CONCOM is persuasive240 and leaves no doubt as to the
intention of the framers to eliminate service contracts altogether. He writes:

Are service contracts allowed under the new Constitution? No. Under the new Constitution,
foreign investors (fully alien-owned) can NOT participate in Filipino enterprises except to
provide: (1) Technical Assistance for highly technical enterprises; and (2) Financial Assistance
for large-scale enterprises.
The intent of this provision, as well as other provisions on foreign investments, is to prevent
the practice (prevalent in the Marcos government) of skirting the 60/40 equation using the
cover of service contracts.241[Emphasis supplied.]
Furthermore, it appears that Proposed Resolution No. 496, 242 which was the draft Article on
National Economy and Patrimony, adopted the concept of "agreements . . . involving either
technical or financial assistance" contained in the "Draft of the 1986 U.P. Law Constitution
Project" (U.P. Law draft) which was taken into consideration during the deliberation of the
CONCOM.243 The former, as well as Article XII, as adopted, employed the same terminology, as
the comparative table below shows:

DRAFT OF THE UP LAW

CONSTITUTION PROJECT

PROPOSED RESOLUTION
NO.
496
OF
THE
CONSTITUTIONAL
COMMISSION

ARTICLE XII OF THE 1987

CONSTITUTION

Sec. 1. All lands of the

public domain, waters,
minerals, coal, petroleum
and other mineral oils, all

Sec. 3. All lands of the

public domain, waters,
minerals, coal, petroleum
and other mineral oils, all

Sec. 2. All lands of the

public domain, waters,
minerals, coal, petroleum,
and other mineral oils, all

forces of potential energy,

fisheries, flora and fauna
and
other
natural
resources
of
the
Philippines 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.
Such activities may be
directly undertaken by
the state, or it may enter
into co-production, joint
venture,
production
sharing agreements with
Filipino
citizens
or
corporations
or
associations sixty per cent
of whose voting stock or
controlling interest is
owned by such citizens for
a period of not more than
twenty-five
years,
renewable for not more
than twenty-five years
and under such terms and
conditions as may be
provided by law. In case
as to 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

forces of potential energy,

fisheries, forests, 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.
Such activities may be
directly undertaken by
the State, or it may enter
into co-production, joint
venture,
productionsharing agreements with
Filipino
citizens
or
corporations
or
associations at least sixty
per cent of whose voting
stock or controlling
interest is owned by such
citizens. Such agreements
shall be for a period of
twenty-five
years,
renewable for not more
than twenty-five years,
and under such term 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 for water
power, beneficial use may
be the measure and limit

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 case 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.

of the grant.

of the grant.

The National Assembly

may by law allow small
scale utilization of natural
resources by Filipino
citizens.

The Congress may by law

allow
small-scale
utilization of natural
resources by Filipino
citizens, as well as
cooperative fish farming
in rivers, lakes, bays, and
lagoons.

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 President with the

concurrence of Congress,
by special law, shall
provide the terms and
conditions under which a
foreign-owned
corporation may enter
into agreements with the
government
involving either technical
or financial assistance for
large-scale exploration,
development,
and
utilization of natural
resources.
[Emphasis
supplied.]

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 National Assembly,

may, by two-thirds vote of
all its members by special
law provide the terms and
conditions under which a
foreign-owned
corporation may enter
into agreements with the
government
involving either technical
or financial assistance for
large-scale exploration,
development,
or
utilization of natural
resources.
[Emphasis
supplied.]

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 President shall notify
the Congress of every
contract entered into in
accordance with this
provision, within thirty
days from its execution.

The insights of the proponents of the U.P. Law draft are, therefore, instructive in interpreting
the phrase "technical or financial assistance."
In his position paper entitled Service Contracts: Old Wine in New Bottles?, Professor Pacifico A.
Agabin, who was a member of the working group that prepared the U.P. Law draft, criticized
service contracts for they "lodge exclusive management and control of the enterprise to the
service contractor, which is reminiscent of the old concession regime. Thus, notwithstanding
the provision of the Constitution that natural resources belong to the State, and that these
shall not be alienated, the service contract system renders nugatory the constitutional
provisions cited."244 He elaborates:
Looking at the Philippine model, we can discern the following vestiges of the concession
regime, thus:
1. Bidding of a selected area, or leasing the choice of the area to the interested party
and then negotiating the terms and conditions of the contract; (Sec. 5, P.D. 87)
2. Management of the enterprise vested on the contractor, including operation of the
field if petroleum is discovered; (Sec. 8, P.D. 87)
3. Control of production and other matters such as expansion and development; (Sec.
8)
4. Responsibility for downstream operations marketing, distribution, and
processing may be with the contractor (Sec. 8);

5. Ownership of equipment, machinery, fixed assets, and other properties remain

with contractor (Sec. 12, P.D. 87);
6. Repatriation of capital and retention of profits abroad guaranteed to the
contractor (Sec. 13, P.D. 87); and
7. While title to the petroleum discovered may nominally be in the name of the
government, the contractor has almost unfettered control over its disposition and
sale, and even the domestic requirements of the country is relegated to
a pro rata basis (Sec. 8).
In short, our version of the service contract is just a rehash of the old concession regime x x x.
Some people have pulled an old rabbit out of a magician's hat, and foisted it upon us as a new
and different animal.
The service contract as we know it here is antithetical to the principle of sovereignty over our
natural resources restated in the same article of the [1973] Constitution containing the
provision for service contracts. If the service contractor happens to be a foreign corporation,
the contract would also run counter to the constitutional provision on nationalization or
Filipinization, of the exploitation of our natural resources.245 [Emphasis supplied. Underscoring
in the original.]
Professor Merlin M. Magallona, also a member of the working group, was harsher in his
reproach of the system:
x x x the nationalistic phraseology of the 1935 [Constitution] was retained by the [1973]
Charter, but the essence of nationalism was reduced to hollow rhetoric. The 1973 Charter still
provided that the exploitation or development of the country's natural resources be limited to
Filipino citizens or corporations owned or controlled by them. However, the martial -law
Constitution allowed them, once these resources are in their name, to enter into service
contracts with foreign investors for financial, technical, management, or other forms of
assistance. Since foreign investors have the capital resources, the actual exploitation and
development, as well as the effective disposition, of the country's natural resources, would be
under their direction, and control, relegating the Filipino investors to the role of second-rate
partners in joint ventures.
Through the instrumentality of the service contract, the 1973 Constitution had legitimized at
the highest level of state policy that which was prohibited under the 1 973 Constitution,
namely: the exploitation of the country's natural resources by foreign nationals. The drastic
impact of [this] constitutional change becomes more pronounced when it is considered that
the active party to any service contract may be a corporation wholly owned by foreign
interests. In such a case, the citizenship requirement is completely set aside, permitting

foreign corporations to obtain actual possession, control, and [enjoyment] of the country's
natural resources.246[Emphasis supplied.]

antithetical to the principle of sovereignty over our natural resources, as well as the
constitutional provision on nationalization or Filipinization of the exploitation of our natural
resources.

Accordingly, Professor Agabin recommends that:

Recognizing the service contract for what it is, we have to expunge it from the Constitution
and reaffirm ownership over our natural resources. That is the only way we can exercise
effective control over our natural resources.
This should not mean complete isolation of the country's natural resources from foreign
investment. Other contract forms which are less derogatory to our sovereignty and control
over natural resources like technical assistance agreements, financial assistance
[agreements], co-production agreements, joint ventures, production-sharing could still be
utilized and adopted without violating constitutional provisions. In other words, we can adopt
contract forms which recognize and assert our sovereignty and ownership over natural
resources, and where the foreign entity is just a pure contractor instead of the beneficial
owner of our economic resources.247[Emphasis supplied.]
Still another member of the working group, Professor Eduardo Labita g, proposed that:
2. Service contracts as practiced under the 1973 Constitution should be discouraged, instead
the government may be allowed, subject to authorization by special law passed by an
extraordinary majority to enter into either technical or financial assistance. This is justified by
the fact that as presently worded in the 1973 Constitution, a service contract gives full control
over the contract area to the service contractor, for him to work, manage and dispose of the
proceeds or production. It was a subterfuge to get around the nationality requirement of the
constitution.248 [Emphasis supplied.]
In the annotations on the proposed Article on National Economy and Patrimony, the U.P. Law
draft summarized the rationale therefor, thus:
5. The last paragraph is a modification of the service contract provision found in Section 9,
Article XIV of the 1973 Constitution as amended. This 1973 provision shattered the framework
of nationalism in our fundamental law (see Magallona, "Nationalism and its Subvers ion in the
Constitution"). Through the service contract, the 1973 Constitution had legitimized that which
was prohibited under the 1935 constitutionthe exploitation of the country's natural
resources by foreign nationals. Through the service contract, acts prohibited by the Anti Dummy Law were recognized as legitimate arrangements. Service contracts lodge exclusive
management and control of the enterprise to the service contractor, not unlike the old
concession regime where the concessionaire had complete control over the country's natural
resources, having been given exclusive and plenary rights to exploit a particular resource and,
in effect, having been assured of ownership of that resource at the point of extraction (see
Agabin, "Service Contracts: Old Wine in New Bottles"). Service contracts, hence, are

Under the proposed provision, only technical assistance or financial assistance agreements
may be entered into, and only for large-scale activities. These are contract forms which
recognize and assert our sovereignty and ownership over natural resources since the foreign
entity is just a pure contractor and not a beneficial owner of our economic resources. The
proposal recognizes the need for capital and technology to develop our natural resources
without sacrificing our sovereignty and control over such resources by the safeguard of a
special law which requires two-thirds vote of all the members of the Legislature. This will
ensure that such agreements will be debated upon exhaustively and thoroughly in the
National Assembly to avert prejudice to the nation. 249[Emphasis supplied.]
The U.P. Law draft proponents viewed service contracts under the 1973 Constitution as grants
of beneficial ownership of the country's natural resources to foreign owned corporations.
While, in theory, the State owns these natural resources and Filipino citizens, their
beneficiaries service contracts actually vested foreigners with the right to dispose, explore
for, develop, exploit, and utilize the same. Foreigners, not Filipinos, became the beneficiaries
of Philippine natural resources. This arrangement is clearly incompatible with the
constitutional ideal of nationalization of natural resources, with the Regalian doctrine, and on
a broader perspective, with Philippine sovereignty.
The proponents nevertheless acknowledged the need for capital and technical know-how in
the large-scale exploitation, development and utilization of natural resources the second
paragraph of the proposed draft itself being an admission of such scarcity. Hence, they
recommended a compromise to reconcile the nationalistic provisions dating back to the 1935
Constitution, which reserved all natural resources exclusively to Filipinos, and the more liberal
1973 Constitution, which allowed foreigners to participate in these resources through service
contracts. Such a compromise called for the adoption of a new system in the exploration,
development, and utilization of natural resources in the form of technical agreements or
financial agreements which, necessarily, are distinct concepts from service contracts.
The replacement of "service contracts" with "agreements involving either technical or
financial assistance," as well as the deletion of the phrase "management or other forms of
assistance," assumes greater significance when note is taken that the U.P. Law draft proposed
other equally crucial changes that were obviously heeded by the CONCOM. These include the
abrogation of the concession system and the adoption of new "options" for the State in the
exploration, development, and utilization of natural resources. The proponents deemed these
changes to be more consistent with the State's ownership of, and its "full control and
supervision" (a phrase also employed by the framers) over, such resources. The Project
explained:

3. In line with the State ownership of natural resources, the State should take a more active
role in the exploration, development, and utilization of natural resources, than the present
practice of granting licenses, concessions, or leases hence the provision that said activities
shall be under the full control and supervision of the State. There are three major schemes by
which the State could undertake these activities: first, directly by itself; second, by virtue of coproduction, joint venture, production sharing agreements with Filipino citizens or corporations
or associations sixty per cent (60%) of the voting stock or controlling interests of which are
owned by such citizens; or third, with a foreign-owned corporation, in cases of large-scale
exploration, development, or utilization of natural resources through agreements involving
either technical or financial assistance only. x x x.
At present, under the licensing concession or lease schemes, the government benefits from
such benefits only through fees, charges, ad valorem taxes and income taxes of the exploiters
of our natural resources. Such benefits are very minimal compared with the enormous profits
reaped by theses licensees, grantees, concessionaires. Moreover, some of them disregard the
conservation of natural resources and do not protect the environment from degradation. The
proposed role of the State will enable it to a greater share in the profits it can also actively
husband its natural resources and engage in developmental programs that will be beneficial to
them.
4. Aside from the three major schemes for the exploration, development, and utilization of our
natural resources, the State may, by law, allow Filipino citizens to explore, develop, utilize
natural resources in small-scale. This is in recognition of the plight of marginal fishermen,
forest dwellers, gold panners, and others similarly situated who exploit our natural resources
for their daily sustenance and survival.250
Professor Agabin, in particular, after taking pains to illustrate the similarities between the two
systems, concluded that the service contract regime was but a "rehash" of the concession
system. "Old wine in new bottles," as he put it. The rejection of the service contract regime,
therefore, is in consonance with the abolition of the concession system.
In light of the deliberations of the CONCOM, the text of the Constitution, and the adoption of
other proposed changes, there is no doubt that the framers considered and shared the intent
of the U.P. Law proponents in employing the phrase "agreements . . . involving either technical
or financial assistance."
While certain commissioners may have mentioned the term "service contracts" during the
CONCOM deliberations, they may not have been necessarily referring to the concept of service
contracts under the 1973 Constitution. As noted earlier, "service contracts" is a term that
assumes different meanings to different people.251 The commissioners may have been using
the term loosely, and not in its technical and legal sense, to refer, in general, to agreements
concerning natural resources entered into by the Government with foreign corporations.
These loose statements do not necessarily translate to the adoption of the 1973 Constitution
provision allowing service contracts.

It is true that, as shown in the earlier quoted portions of the proceedings in CONCOM, in
response to Sr. Tan's question, Commissioner Villegas commented that, other than
congressional notification, the only difference between "future" and "past" "service contracts"
is the requirement of a general law as there were no laws previously authorizing the
same.252 However, such remark is far outweighed by his more categorical statement in his
exchange with Commissioner Quesada that the draft article "does not permit foreign investors
to participate" in the nation's natural resources which was exactly what service contracts did
except to provide "technical or financial assistance." 253
In the case of the other commissioners, Commissioner Nolledo himself clarified in his work
that the present charter prohibits service contracts.254 Commissioner Gascon was not totally
averse to foreign participation, but favored stricter restrictions in the form of majority
congressional concurrence.255 On the other hand, Commissioners Garcia and Tadeo may have
veered to the extreme side of the spectrum and their objections may be interpreted as votes
against any foreign participation in our natural resources whatsoever.
WMCP cites Opinion No. 75, s. 1987,256 and Opinion No. 175, s. 1990 257 of the Secretary of
Justice, expressing the view that a financial or technical assistance agreement "is no different
in concept" from the service contract allowed under the 1973 Constitution. This Court is not,
however, bound by this interpretation. When an administrative or executive agency renders
an opinion or issues a statement of policy, it merely interprets a pre-existing law; and the
administrative interpretation of the law is at best advisory, for it is the courts that finally
determine what the law means.258
In any case, the constitutional provision allowing the President to enter into FTAAs with
foreign-owned corporations is an exception to the rule that participation in the nation's
natural resources is reserved exclusively to Filipinos. Accordingly, such provision must be
construed strictly against their enjoyment by non-Filipinos. As Commissioner Villegas
emphasized, the provision is "very restrictive."259 Commissioner Nolledo also remarked that
"entering into service contracts is an exception to the rule on protection of natural resources
for the interest of the nation and, therefore, being an exception, it should be subject,
whenever possible, to stringent rules."260Indeed, exceptions should be strictly but reasonably
construed; they extend only so far as their language fairly warrants and all doubts should be
resolved in favor of the general provision rather than the exception. 261
With the foregoing discussion in mind, this Court finds that R.A. No. 7942 is invalid insofar as
said Act authorizes service contracts. Although the s tatute employs the phrase "financial and
technical agreements" in accordance with the 1987 Constitution, it actually treats these
agreements as service contracts that grant beneficial ownership to foreign contractors
contrary to the fundamental law.
Section 33, which is found under Chapter VI (Financial or Technical Assistance Agreement) of
R.A. No. 7942 states:

SEC. 33. Eligibility.Any qualified person with technical and financial capability to undertake
large-scale exploration, development, and utilization of mineral resources in the Philippines
may enter into a financial or technical assistance agreement directly with the Government
through the Department. [Emphasis supplied.]
"Exploration," as defined by R.A. No. 7942,
means the searching or prospecting for mineral resources by geological, geochemical or
geophysical surveys, remote sensing, test pitting, trending, drilling, shaft sinking, tunneling or
any other means for the purpose of determining the existence, extent, quantity and quality
thereof and the feasibility of mining them for profit. 262
A legally organized foreign-owned corporation may be granted an exploration permit,263 which
vests it with the right to conduct exploration for all minerals in specified areas, 264 i.e., to enter,
occupy and explore the same.265Eventually, the foreign-owned corporation, as such permittee,
may apply for a financial and technical assistance agreement.266
"Development" is the work undertaken to explore and prepare an ore body or a mineral
deposit for mining, including the construction of necessary infrastructure and related
facilities.267
"Utilization" "means the extraction or disposition of minera ls."268 A stipulation that the
proponent shall dispose of the minerals and byproducts produced at the highest price and
more advantageous terms and conditions as provided for under the implementing rules and
regulations is required to be incorporated in every FTAA.269
A foreign-owned/-controlled corporation may likewise be granted a mineral processing
permit.270 "Mineral processing" is the milling, beneficiation or upgrading of ores or minerals
and rocks or by similar means to convert the same into marketable products.271
An FTAA contractor makes a warranty that the mining operations shall be conducted in
accordance with the provisions of R.A. No. 7942 and its implementing rules 272 and for work
programs and minimum expenditures and commitments.273 And it obliges itself to furnish the
Government records of geologic, accounting, and other relevant data for its mining
operation.274
"Mining operation," as the law defines it, means mining activities involving exploration,
feasibility, development, utilization, and processing.275
The underlying assumption in all these provisions is that the foreign contractor manages the
mineral resources, just like the foreign contractor in a service contract.

Furthermore, Chapter XII of the Act grants foreign contractors in FTAAs the same auxiliary
mining rights that it grants contractors in mineral agreements (MPSA, CA and
JV).276 Parenthetically, Sections 72 to 75 use the term "contractor," without distinguishing
between FTAA and mineral agreement contractors. And so does "holders of mining rights" in
Section 76. A foreign contractor may even convert its FTAA into a mineral agreement if the
economic viability of the contract area is found to be inadequate to justify large-scale mining
operations,277provided that it reduces its equity in the corporation, partnership, association or
cooperative to forty percent (40%).278
Finally, under the Act, an FTAA contractor warrants that it "has or has access to all the
financing, managerial, and technical expertise. . . ."279 This suggests that an FTAA contractor is
bound to provide some management assistance a form of assistance that has been
eliminated and, therefore, proscribed by the present Charter.
By allowing foreign contractors to manage or operate all the aspects of the mining operation,
the above-cited provisions of R.A. No. 7942 have in effect conveyed beneficial ownership over
the nation's mineral resources to these contractors, leaving the State with nothing but bare
title thereto.
Moreover, the same provisions, whether by design or inadvertence, permit a circumvention of
the constitutionally ordained 60%-40% capitalization requirement for corporations or
associations engaged in the exploitation, development and utilization of Philippine natural
resources.
In sum, the Court finds the following provisions of R.A. No. 7942 to be violative of Section 2,
Article XII of the Constitution:
(1) The proviso in Section 3 (aq), which defines "qualified person," to wit:
Provided, That a legally organized foreign-owned corporation shall be deemed a
qualified person for purposes of granting an exploration permit, financial or technical
assistance agreement or mineral processing permit.
(2) Section 23,280 which specifies the rights and obligations of an exploration
permittee, insofar as said section applies to a financial or technical assistance
agreement,
(3) Section 33, which prescribes the eligibility of a contractor in a financial or
technical assistance agreement;
(4) Section 35,281 which enumerates the terms and conditions for every financial or
technical assistance agreement;

(5) Section 39,282 which allows the contractor in a financial and technical assistance
agreement to convert the same into a mineral production-sharing agreement;
(6) Section 56,283 which authorizes the issuance of a mineral processing permit to a
contractor in a financial and technical assistance agreement;
The following provisions of the same Act are likewise void as they are dependent on the
foregoing provisions and cannot stand on their own:
(1) Section 3 (g),284 which defines the term "contractor," insofar as it applies to a
financial or technical assistance agreement.
Section 34,285 which prescribes the maximum contract area in a financial or technical
assistance agreements;
Section 36,286 which allows negotiations for financial or technical assistance
agreements;

Section 1.3 of the WMCP FTAA grants WMCP "the exclusive right to explore, exploit, utilise[,]
process and dispose of all Minerals products and by-products thereof that may be produced
from the Contract Area."294 The FTAA also imbues WMCP with the following rights:
(b) to extract and carry away any Mineral samples from the Contract area for the
purpose of conducting tests and studies in respect thereof;
(c) to determine the mining and treatment processes to be utilised during the
Development/Operating Period and the project facilities to be constructed during the
Development and Construction Period;
(d) have the right of possession of the Contract Area, with full right of ingress and
egress and the right to occupy the same, subject to the provisions of Presidential
Decree No. 512 (if applicable) and not be prevented from entry into private ands by
surface owners and/or occupants thereof when prospecting, exploring and exploiting
for minerals therein;
xxx

287

Section 37, which prescribes the procedure for filing and evaluation of financial or
technical assistance agreement proposals;
Section 38,288 which limits the term of financial or technical assistance agreements;
289

Section 40, which allows the assignment or transfer of financial or technical

assistance agreements;
Section 41,290 which allows the withdrawal of the contractor in an FTAA;
The second and third paragraphs of Section 81, 291 which provide for the
Government's share in a financial and technical assistance agreement; and
Section 90,292 which provides for incentives to contractors in FTAAs insofar as it
applies to said contractors;
When the parts of the statute are so mutually dependent and connected as conditions,
considerations, inducements, or compensations for each other, as to warrant a belief that the
legislature intended them as a whole, and that if all could not be carried into effect, the
legislature would not pass the residue independently, then, if some parts are unconstitutional,
all the provisions which are thus dependent, conditional, or connected, must fall with them. 293
There can be little doubt that the WMCP FTAA itself is a service contract.

(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
All materials, equipment, plant and other installations erected or placed on the Contract Area
remain the property of WMCP, which has the right to deal with and remove such items within
twelve months from the termination of the FTAA.296

Pursuant to Section 1.2 of the FTAA, WMCP shall provide "[all] financing, technology,
management and personnel necessary for the Mining Operations." The mining company binds
itself to "perform all Mining Operations . . . providing all necessary services, technology and
financing in connection therewith,"297 and to "furnish all materials, labour, equipment and
other installations that may be required for carrying on all Mining Operations." 298> WMCP may
make expansions, improvements and replacements of the mining facilities and may add such
new facilities as it considers necessary for the mining operations. 299
These contractual stipulations, taken together, grant WMCP beneficial ownership over na tural
resources that properly belong to the State and are intended for the benefit of its citizens.
These stipulations are abhorrent to the 1987 Constitution. They are precisely the vices that the
fundamental law seeks to avoid, the evils that it aims to s uppress. Consequently, the contract
from which they spring must be struck down.
In arguing against the annulment of the FTAA, WMCP invokes the Agreement on the
Promotion and Protection of Investments between the Philippine and Australian
Governments, which was signed in Manila on January 25, 1995 and which entered into force
on December 8, 1995.
x x x. Article 2 (1) of said treaty states that it applies to investments whenever made and thus
the fact that [WMCP's] FTAA was entered into prior to the entry into force of the treaty does
not preclude the Philippine Government from protecting [WMCP's] investment in [that] FTAA.
Likewise, Article 3 (1) of the treaty provides that "Each Party shall encourage and promote
investments in its area by investors of the other Party and shall [admit] such investments in
accordance with its Constitution, Laws, regulations and investment policies" and in Article 3
(2), it states that "Each Party shall ensure that investments are accorded fair and equitable
treatment." The latter stipulation indicates that it was intended to impose an obligation upon
a Party to afford fair and equitable treatment to the investments of the other Party and that a
failure to provide such treatment by or under the laws of the Party may constitute a breach of
the treaty. Simply stated, the Philippines could not, under said treaty, rely upon the
inadequacies of its own laws to deprive an Australian investor (like [WMCP]) of fair and
equitable treatment by invalidating [WMCP's] FTAA without likewise nul lifying the service
contracts entered into before the enactment of RA 7942 such as those mentioned in PD 87 or
EO 279.
This becomes more significant in the light of the fact that [WMCP's] FTAA was executed not by
a mere Filipino citizen, but by the Philippine Government itself, through its President no less,
which, in entering into said treaty is assumed to be aware of the existing Philippine laws on
service contracts over the exploration, development and utilization of natural resources. The
execution of the FTAA by the Philippine Government assures the Australian Government that
the FTAA is in accordance with existing Philippine laws.300 [Emphasis and italics by private
respondents.]

The invalidation of the subject FTAA, it is argued, would constitute a br each of said treaty
which, in turn, would amount to a violation of Section 3, Article II of the Constitution adopting
the generally accepted principles of international law as part of the law of the land. One of
these generally accepted principles is pacta sunt servanda, which requires the performance in
good faith of treaty obligations.
Even assuming arguendo that WMCP is correct in its interpretation of the treaty and its
assertion that "the Philippines could not . . . deprive an Australian investor (like [WMCP]) of
fair and equitable treatment by invalidating [WMCP's] FTAA without likewise nullifying the
service contracts entered into before the enactment of RA 7942 . . .," the annulment of the
FTAA would not constitute a breach of the treaty invoked. For this decision herein invalidating
the subject FTAA forms part of the legal system of the Philippines. 301 The equal protection
clause302 guarantees that such decision shall apply to all contracts belonging to the same class,
hence, upholding rather than violating, the "fair and equitable treatment" stipulation in said
treaty.
One other matter requires clarification. Petitioners contend that, consistent with the
provisions of Section 2, Article XII of the Constitution, the President may enter into
agreements involving "either technical or financial assistance" only. The agreement in
question, however, is a technical and financial assistance agreement.
Petitioners' contention does not lie. To adhere to the literal language of the Constitution
would lead to absurd consequences.303 As WMCP correctly put it:
x x x such a theory of petitioners would compel the government (through the President) to
enter into contract with two (2) foreign-owned corporations, one for financial assistance
agreement and with the other, for technical assistance over one and the same mining area or
land; or to execute two (2) contracts with only one foreign-owned corporation which has the
capability to provide both financial and technical assistance, one for financial assistance and
another for technical assistance, over the same mining area. Such an absurd result is definitely
not sanctioned under the canons of constitutional construction. 304 [Underscoring in the
original.]
Surely, the framers of the 1987 Charter did not contemplate such an absurd result from their
use of "either/or." A constitution is not to be interpreted as demanding the impossible or the
impracticable; and unreasonable or absurd consequences, if possible, should be
avoided.305 Courts are not to give words a meaning that would lead to absurd or unreasonable
consequences and a literal interpretation is to be rejected if it would be unjust or lead to
absurd results.306 That is a strong argument against its adoption.307 Accordingly, petitioners'
interpretation must be rejected.
The foregoing discussion has rendered unnecessary the resolution of the other issues raised by
the petition.

WHEREFORE, the petition is GRANTED. The Court hereby declares unconstitutional and void:
(1) The following provisions of Republic Act No. 7942:
(a) The proviso in Section 3 (aq),
(b) Section 23,
(c) Section 33 to 41,
(d) Section 56,
(e) The second and third paragraphs of Section 81, and
(f) Section 90.
(2) All provisions of Department of Environment and Natural Resources
Administrative Order 96-40, s. 1996 which are not in conformity with this Decision,
and
(3) The Financial and Technical Assistance Agreement between the Government of
the Republic of the Philippines and WMC Philippines, Inc.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Carpio, Corona, Callejo, Sr., and Tinga. JJ., concur.
Vitug,
J.,
see
Separate
Opinion.
Panganiban,
J.,
see
Separate
Opinion.
Ynares-Santiago, Sandoval-Gutierrez and Austria-Martinez, JJ., joins J., Panganiban's separate
opinion.
Azcuna, no part, one of the parties was a client.

Republic of the Philippines

The Parties

Supreme Court
Manila
Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic
G.R. No. 196870

EN BANC
June 26, 2012

corporation. Its primary purpose is to foster a united, concerted and environment-conscious

development of Boracay Island, thereby preserving and maintaining its culture, natural beauty

BORACAY FOUNDATION, INC., petitioner

and ecological balance, marking the island as the crown jewel of Philippine tourism, a prime

versus

tourist destination in Asia and the whole world.[1] It counts among its members at least sixty

THE PROVICE OF AKLAN, REPRESENTED

BY GOVERNOR CARLITO S. MARQUEZ, THE PHIIPPINE RECLAMATION AUTHORITY, AND
THE DENR-EMB (REGION VI), respondents

(60) owners and representatives of resorts, hotels, restaurants, and similar institutions; at
least five community organizations; and several environmentally-conscious residents and
advocates.[2]

DECISION
Respondent Province of Aklan (respondent Province) is a political subdivision of the
LEONARDO-DE CASTRO, J.:

government created pursuant to Republic Act No. 1414, represented by Honorable Carli to S.
Marquez, the Provincial Governor (Governor Marquez).

In resolving this controversy, the Court took into consideration that all the parties involved
share common goals in pursuit of certain primordial State policies and principles that are
enshrined in the Constitution and pertinent laws, such as the protection of the environment,
the empowerment of the local government units, the promotion of tourism, and the
encouragement of the participation of the private sector. The Court seeks to reconcile the
respective roles, duties and responsibilities of the petitioner and respondents in achieving
these shared goals within the context of our Constitution, laws and regulations.

Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public
Estates Authority (PEA), is a government entity created by Presidential Decree No.
1084,[3] which states that one of the purposes for which respondent PRA was created was to
reclaim land, including foreshore and submerged areas. PEA eventually became the lead
agency primarily responsible for all reclamation projects in the country under Executive Order
No. 525, series of 1979. In June 2006, the President of the Philippines issued Executive Order
No. 543, delegating the power to approve reclamation projects to PRA through its governing
Board, subject to compliance with existing laws and rules and further subject to the condition

Nature of the Case

that reclamation contracts to be executed with any person or entity (must) go through public
bidding.[4]

This is an original petition for the issuance of an Environmental Protection Order in the nature
of a continuing mandamus under A.M. No. 09-6-8-SC, otherwise known as the Rules of
Procedure for Environmental Cases, promulgated on April 29, 2010.

Respondent Department of Environment and Natural Resources Environmental Management

Bureau (DENR-EMB), Regional Office VI (respondent DENR-EMB RVI), is the government
agency in the Western Visayas Region authorized to issue environmental compliance

certificates regarding projects that require the environments protection and management in

establish a common vision of all stakeholders to ensure the conservation, restoration, and

the region.[5]

preservation of Boracay Island and to develop an action plan that [would allow] all sectors to
work in concert among and with each other for the long term benefit and sustainability of the

Summary of Antecedent Facts

island and the community.[10] The Summit yielded a Terminal Report[11]stating that the
participants had shared their dream of having world-class land, water and air infrastructure, as

Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of

well as given their observations that government support was lacking, infrastructure was poor,

the Philippines and one of the countrys most popular tourist destinations, was declared a

and, more importantly, the influx of tourists to Boracay was increasing. The Report showed

[6]

tourist zone and marine reserve in 1973 under Presidential Proclamation No. 1801. The

that there was a need to expand the port facilities at Ca ticlan due to congestion in the holding

island comprises the barangays of Manoc-manoc, Balabag, and Yapak, all within the

area of the existing port, caused by inadequate facilities, thus tourists suffered long queues

municipality of Malay, in the province of Aklan.

[7]

while waiting for the boat ride going to the island. [12]

Petitioner describes Boracay as follows:

Boracay is well-known for its distinctive powdery white-sand
beaches which are the product of the unique ecosystem dynamics of the
area. The island itself is known to come from the uplifted remnants of an
ancient reef platform. Its beaches, the sandy land strip between the water
and the area currently occupied by numerous establishments, is the primary
draw for domestic and international tourists for its color, texture and other
unique characteristics. Needless to state, it is the premier domestic and
international tourist destination in the Philippines. [8]

Respondent Province claimed that tourist arrivals to Boracay reached approximately

649,559 in 2009 and 779,666 in 2010, and this was expected to reach a record of 1 million
tourist arrivals in the years to come. Thus, respondent Province conceptualized the expansion
of the port facilities at Barangay Caticlan.[13]

The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13,
s. 2008

[14]

on April 25, 2008 stating that it had learned that respondent Province had filed an

application with the DENR for a foreshore lease of areas along the shorelines of Barangay
More than a decade ago, respondent Province built the Caticlan Jetty Port and
Passenger Terminal at Barangay Caticlan to be the main gateway to Boracay. It also built the
corresponding Cagban Jetty Port and Passenger Terminal to be the receiving end for tourists in
Boracay. Respondent Province operates both ports to provide structural facilities suited for
locals, tourists and guests and to provide safety and security measures.[9]

Caticlan, and manifesting its strong opposition to said application, as the proposed foreshore
lease practically covered almost all the coastlines of said barangay, thereby technically
diminishing its territorial jurisdiction, once granted, and depriving its constituents of their
statutory right of preference in the development and utilization of the natural resources within
its jurisdiction. The resolution further stated that respondent Province did not conduct any
consultations with the Sangguniang Barangay of Caticlan regarding the proposed foreshore

In 2005, Boracay 2010 Summit was held and participated in by representatives from
national government agencies, local government units (LGUs), and the private sector.
Petitioner was one of the organizers and participants thereto. The Summit aimed to re-

lease, which failure the Sanggunian considered as an act of bad faith on the part of respondent
Province.[15]

On November 20, 2008, the Sangguniang Panlalawigan of respondent Province

Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province

approved Resolution No. 2008-369,[16] formally authorizing Governor Marquez to enter into

issued Resolution No. 2009110,[23] which authorized Governor Marquez to file an application

negotiations towards the possibility of effecting self-liquidating and income-producing

to reclaim the 2.64 hectares of foreshore area in Caticlan, Malay, Aklan with respondent

development and livelihood projects to be financed through bonds, debentures, securiti es,

PRA.

collaterals, notes or other obligations as provided under Section 299 of the Local Government
Code, with the following priority projects: (a) renovation/rehabilitation of the Caticlan/Cagban

Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which

Passenger Terminal Buildings and Jetty Ports; and (b) reclama tion of a portion of Caticlan

focused on the land reclamation of 2.64 hectares by way of beach enhancement and recovery

foreshore for commercial purposes.[17] This step was taken as respondent Provinces existing

of the old Caticlan coastline for the rehabilitation and expansion of the existing jetty port, and

jetty port and passenger terminal was funded through bond flotation, which was successfully

for its future plans the construction of commercial building and wellness center. The financial

redeemed and paid ahead of the target date. This was allegedly cited as one of the LGUs Best

component of the said study was Two Hundred Sixty Million Pesos (P260,000,000.00). Its

Practices wherein respondent Province was given the appropriate commendation.

[18]

suggested financing scheme was bond flotation.[24]

Respondent Province included the proposed expansion of the port facilities at

Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong

Barangay Caticlan in its 2009 Annual Investment Plan,[19] envisioned as its project site the area

opposition to the intended foreshore lease application, through Resolution No.

adjacent to the existing jetty port, and identified additional areas along the coastline of

044,[25] approved on July 22, 2009, manifesting therein that respondent Provinces foreshore

Barangay Caticlan as the site for future project expansion.[20]

lease application was for business enterprise purposes for its benefit, at the expense of the
local government of Malay, which by statutory provisions was the rightful entity to develop,

Governor Marquez sent a letter to respondent PRA on March 12, 2009 [21] expressing the

utilize and reap benefits from the natural resources found within its jurisdiction. [26]

interest of respondent Province to reclaim about 2.64 hectares of land along the foreshores of
Barangay Caticlan, Municipality of Malay, Province of Aklan.

In

August

2009,

Preliminary

Geohazard

Assessment [27] for

the

enhancement/expansion of the existing Caticlan Jetty Port and Passenger Terminal through
Sometime in April 2009, respondent Province entered into an agreement with the Financial

beach zone restoration and Protective Marina Developments in Caticlan, Malay, Aklan was

Advisor/Consultant that won in the bidding process held a month before, to conduct the

completed.

necessary feasibility study of the proposed project for the Renovation/Rehabilitation of the
Caticlan Passenger Terminal Building and Jetty Port, Enhancement and Recovery of Old

Thereafter, Governor Marquez submitted an Environmental Performance Report

Caticlan Coastline, and Reclamation of a Portion of Foreshore for Commercial Purposes (the

and Monitoring Program (EPRMP)[28] to DENR-EMB RVI, which he had attached to his

Marina Project), in Malay, Aklan.[22]

letter [29] dated September 19, 2009, as an initial step for securing an Environmental
Compliance Certificate (ECC). The letter reads in part:

With the project expected to start its construction

implementation next month, the province hereby assures your good office
that it will give preferential attention to and shall comply with whatever
comments that you may have on this EPRMP.[30] (Emphasis added.)

In his letter dated October 22, 2009 addressed to respondent PRA, Governor
Marquez wrote:

Respondent Province was then authorized to issue Caticlan Super Marina Bonds for
the purpose of funding the renovation of the Caticlan Jetty Port and Passenger Terminal
Building, and the reclamation of a portion of the foreshore lease area for commercial purposes
in Malay, Aklan through Provincial Ordinance No. 2009-013, approved on September 10,
2009. The said ordinance authorized Governor Marquez to negotiate, sign and execute
agreements in relation to the issuance of the Caticlan Super Marina Bonds in the amount not
exceeding P260,000,000.00.[31]

Subsequently, the Sangguniang

issued Provincial Ordinance No. 2009-015

Panlalawigan of
[32]

the Province of

Aklan

on October 1, 2009, amending Provincial

Ordinance No. 2009-013, authorizing the bond flotation of the Province of Aklan through
Governor Marquez to fund the Marina Project and appropriate the entire proceeds of said
bonds for the project, and further authorizing Governor Marquez to negotiate, sign and

With our substantial compliance with the requirements under

Administrative Order No. 2007-2 relative to our request to PRA for approval
of the reclamation of the [proposed Beach Zone Restoration and Protection
Marine Development in Barangays Caticlan and Manoc-Manoc] and as a
result of our discussion during the [meeting with the respondent PRA on
October 12, 2009], may we respectfully submit a revised Reclamation
Project Description embodying certain revisions/changes in the size and
location of the areas to be reclaimed. x x x.
On another note, we are pleased to inform your Office that the
bond flotation we have secured with the Local Government Unit Guarantee
Corporation (LGUGC) has been finally approved last October 14, 2009. This
will pave the way for the implementation of sai d project. Briefly, the
Province has been recognized by the Bureau of Local Government Finance
(BLGF) for its capability to meet its loan obligations. x x x.
With the continued increase of tourists coming to Boracay through
Caticlan, the Province is venturing into such development project with the
end in view of protection and/or restoring certain segments of the shoreline
in Barangays Caticlan (Caticlan side) and Manoc-manoc (Boracay side)
which, as reported by experts, has been experiencing tremendous coastal
erosion.

execute contracts or agreements pertinent to the transaction. [33]

Within the same month of October 2009, respondent Province deliberated on the

For the project to be self-liquidating, however, we will be

developing the reclaimed land for commercial and tourism-related facilities
and for other complementary uses.[35] (Emphasis ours.)

possible expansion from its original proposed reclamation area of 2.64 hectares to forty (40)
hectares in order to maximize the utilization of its resources and as a response to the findings

Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No.

of the Preliminary Geohazard Assessment study which showed that the recession and retreat

2009-299 [36] authorizing Governor Marquez to enter into a Memorandum of Agreement (MOA)

of the shoreline caused by coastal erosion and scouring should be the first major concern in

with respondent PRA in the implementation of the Beach Zone Restoration and Protection

the project site and nearby coastal area. The study likewise indicated the vulnerability of the

Marina Development Project, which shall reclaim a total of 40 hectares in the areas adjacent

coastal zone within the proposed project site and the nearby coastal area due to the effects of

to the jetty ports at Barangay Caticlan and Barangay Manoc -manoc. The Sangguniang

sea level rise and climate change which will greatl y affect the social, economic, and

Panlalawigan approved the terms and conditions of the necessary agreements for the

environmental situation of Caticlan and nearby Malay coastal communities.

[34]

implementation

of

the bond

flotation of respondent Province to fund the

renovation/rehabilitation of the existing jetty port by way of enhancement and recovery of the

Old Caticlan shoreline through reclamation of an area of 2.64 hectares in the amount

and the non-governmental organizations (NGOs). The details of the campaign are summarized

ofP260,000,000.00 on December 1, 2009.[37]

as follows [43]:

Respondent Province gave an initial presentation of the project with consultation to

a.

the Sangguniang Bayan of Malay[38] on December 9, 2009.

June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay,
Aklan;[44]

b.

July 28, 2010 at Caticlan Jetty Port and Passenger Terminal;[45]

Respondent PRA approved the reclamation project on April 20, 2010 in its

c.

July 31, 2010 at Barangay Caticlan Plaza;[46]

Resolution No. 4094 and authorized its General Manager/Chief Executive Officer (CEO) to

d.

September 15, 2010 at the Office of the Provincial Governor with

Municipal Mayor of Malay Mayor John P. Yap;[47]

e.

October 12, 2010 at the Office of the Provincial Governor with the
Provincial Development Council Executive Committee;[48] and

f.

October 29, 2010 at the Office of the Provincial Governor with Officials
of LGU-Malay and Petitioner.[49]

enter into a MOA with respondent Province for the implementation of the reclamation
project.[39]

On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-0967100 (the questioned ECC) for Phase 1 of the Reclamation Project to the extent of 2.64
hectares to be done along the Caticlan side beside the existing jetty port. [40]

Petitioner claims that during the public consultation meeting belatedly called by
On May 17, 2010, respondent Province entered into a MOA[41] with respondent PRA.
Under Article III, the Project was described therein as follows:

respondent Province on June 17, 2010, respondent Province presented the Reclamation
Project and only then detailed the actions that it had already undertaken, particularly: the
issuance of the Caticlan Super Marina Bonds; the execution of the MOA with respondent PRA;

The proposed Aklan Beach Zone Restoration and Protection

Marina Development Project involves the reclamation and development of
approximately forty (40) hectares of foreshore and offshore areas of the
Municipality of Malay x x x.
The land use development of the reclamation project shall be for
commercial, recreational and institutional and other applicable
uses.[42] (Emphases supplied.)
It was at this point that respondent Province deemed it necessary to conduct a

the alleged conduct of an Environmental Impact Assessment (EIA) study for the reclamation
project; and the expansion of the project to forty (40) hectares from 2.64 hectares.[50]

In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay
Municipality reiterated its strong opposition to respondent Provinces project and denied its
request for a favorableendorsement of the Marina Project.[51]

series of what it calls information-education campaigns, which provided the venue for
interaction and dialogue with the public, particularly the Barangay and Municipal officials of
the Municipality of Malay, the residents of Barangay Caticlan and Boracay, the stakeholders,

The Malay Municipality subsequently issued Resolution No. 016, Series of 2010,
adopted on August 3, 2010, to request respondent PRA not to grant reclamation permit and

notice to proceed to the Marina Project of the [respondent] Provincial Government of Aklan
located at Caticlan, Malay, Aklan.[52]

On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside
Resolution No. 046, s. 2010, of the Municipality of Malay and manifested its support for the
implementation of the aforesaid project through its Resolution No. 2010-022.[56]

In a letter [53] dated October 12, 2010, petitioner informed respondent PRA of its
opposition to the reclamation project, primarily for the reason that, based on the opinion of

On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors

Dr. Porfirio M. Alio, an expert from the University of the Philippines Marine Science Institute

under its Resolution No. 4130. Respondent PRA wrote to respondent Province on October 19,

(UPMSI), which he rendered based on the documents submitted by respondent Province to

2010, informing the latter to proceed with the reclamation and development of phase 1 of

obtain the ECC, a full EIA study is required to assess the reclamation projects likelihood of

site 1 of its proposed project. Respondent PRA attached to said letter its Evaluation Report

rendering critical and lasting effect on Boracay considering the proximity in distance,

dated October 18, 2010.[57]

geographical location, current and wind di rection, and many other environmental
considerations in the area. Petitioner noted that said documents had failed to deal with
Petitioner likewise received a copy of respondent PRAs letter dated October 19,

coastal erosion concerns in Boracay. It also noted that respondent Province failed to comply
with certain mandatory provisions of the Local Government Code, particularly, those requiring
the project proponent to conduct consultations with stakeholders.

2010, which authorized respondent Province to proceed with phase 1 of the reclamation
project, subject to compliance with the requirements of its Evaluation Report. The reclamation
project was described as:
[A] seafront development involving reclamation of an aggregate
area of more or less, forty (40) hectares in two (2) separate sites both in
Malay Municipality, Aklan Province. Site 1 is in Brgy. Caticlan with a total
area of 36.82 hectares and Site 2 in Brgy. Manoc-Manoc, Boracay Island
with a total area of 3.18 hectares. Sites 1 and 2 are on the opposite sides of
Tabon Strait, about 1,200 meters apart. x x x. [58] (Emphases added.)

Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its
opposition to the reclamation project to respondent Province, respondent PRA, respondent
DENR-EMB, the National Economic Development Authority Region VI, the Malay Municipality,
and other concerned entities.[54]

The Sangguniang
Petitioner alleges that despite the Malay Municipalitys denial of respondent
Provinces request for a favorable endorsement, as well as the strong opposition manifested
both by Barangay Caticlan and petitioner as an NGO, respondent Province still continued with
the implementation of the Reclamation Project.[55]

[59]

034,

Panlalawigan of

Aklan,

through Resolution

No.

2010-

addressed the apprehensions of petitioner embodied in its Resolution No. 001, s. 2010,

and supported the implementation of the project. Said resolution stated that the
apprehensions of petitioner with regard to the economic, social and political negative impacts
of the projects were mere perceptions and generalities and were not anchored on definite
scientific, social and political studies.

In the meantime, a study was commissioned by the Philippine Chamber of Commerce

During the First Quarter Regular Meeting of the Regional Development Council,

and Industry-Boracay (PCCI-Boracay), funded by the Department of Tourism (DOT) with the

Region VI (RDC-VI) on April 16, 2011, it approved and supported the subject project (covering

assistance of, among others, petitioner. The study was conducted in November 2010 by

2.64 hectares) through RDC-VI Resolution No. VI-26, series of 2011.[65]

several marine biologists/experts from the Marine Environmental Resources Foundation

(MERF) of the UPMSI. The study was intended to determine the potential impact of a

Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011

reclamation project in the hydrodynamics of the strait and on the coastal erosion patterns in

stating that the study conducted by the UPMSI confirms that the water flow across the

the southern coast of Boracay Island and along the coast of Caticlan.

[60]

Caticlan-Boracay channel is primarily tide-driven, therefore, the marine scientists believe that
the 2.64-hectare project of respondent Province would not significantly affect the flow in the

After noting the objections of the respective LGUs of Caticlan and Malay, as well as

channel and would unlikely impact the Boracay beaches. Based on this, PCCI -Boracay stated

the apprehensions of petitioner, respondent Province issued a notice to the contractor on

that it was not opposing the 2.64-hectare Caticlan reclamation project on environmental

December 1, 2010 to commence with the construction of the project.

[61]

grounds.[66]

On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on

On June 1, 2011, petitioner filed the instant Petition for Environmental Protection

Cooperatives, Food, Agriculture, and Environmental Protection and the Committee on

Order/Issuance of the Writ of Continui ng Mandamus. On June 7, 2011, this Court issued

Tourism, Trade, Industry and Commerce, conducted a joint committee hearing wherein the

a Temporary Environmental Protection Order (TEPO) and ordered the respondents to file

[62]

study undertaken by the MERF-UPMSI was discussed.

In attendance were Mr. Ariel Abriam,

their respective comments to the petition.[67]

President of PCCI-Boracay, representatives from the Provincial Government, and Dr. Cesar
Villanoy, a professor from the UPMSI. Dr. Villanoy said that the subject project, consisting

After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately

of 2.64 hectares, would only have insignificanteffect on the hydrodynamics of the strait

issued an order to the Provincial Engineering Office and the concerned contractor to cease and

traversing the coastline of Barangay Caticlan and Boracay, hence, there was a distant

desist from conducting any construction activities until further orders from this Court.

possibility that it would affect the Boracay coastline, which includes the famous white-sand
beach of the island.[63]

Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution

[64]

No. 2011-065

noting the report on the survey of the channel between Caticlan and Boracay

conducted by the UPMSI in relation to the effects of the ongoing reclamation to Boracay
beaches, and stating that Dr. Villanoy had admitted that nowhere in their study was it pointed
out that there would be an adverse effect on the white-sand beach of Boracay.

The petition is premised on the following grounds:

I.
THE RESPONDENT PROVINCE, PROPONENT OF THE RECLAMATION PROJECT,
FAILED TO COMPLY WITH RELEVANT RULES AND REGULATIONS IN THE
ACQUISITION OF AN ECC.
A. THE RECLAMATION PROJECT
ENVIRONMENTALLY
CRITICAL

IS CO-LOCATED WITHIN
AREAS
REQUIRING
THE

PERFORMANCE
OF
A
FULL,
OR
ENVIRONMENTAL IMPACT ASSESSMENT.
B.

C.

PROGRAMMATIC,

RESPONDENT PROVINCE FAILED TO OBTAIN THE FAVORABLE

ENDORSEMENT OF THE LGU CONCERNED.

RESPONDENT PROVINCE FAILED TO CONDUCT THE REQUIRED

CONSULTATION PROCEDURES AS REQUIRED BY THE LOCAL
GOVERNMENT CODE.

D. RESPONDENT PROVINCE FAILED TO PERFORM A FULL

ENVIRONMENTAL IMPACT ASSESSMENT AS REQUIRED BY LAW
AND RELEVANT REGULATIONS.

abused and exploited the Revised Procedural Manual for DENR Administrative Order No. 30,
Series of 2003 (DENR DAO 2003-30)[71] relating to the acquisition of an ECC by:
1.

Declaring the reclamation project under Group II Projects-Non-ECP

(environmentally critical project) in ECA (environmentally critical
area) based on the type and size of the area, and

2.

Failing to declare the reclamation project as a co-located project

application which would have required the Province to submit
a Programmatic
Environmental
Impact
Statement
(PEIS)[72] or Programmatic Environmental [Performance] Report
Management Plan (PE[P]RMP).[73] (Emphases ours.)

Petitioner further alleges that the Revised Procedural Manual (on which the
II.

classification above is based, which merely requires an Environmental Impact Statement [EIS]
for Group II projects) is patently ultra vires, and respondent DENR-EMB RVI committed grave

THE RECLAMATION OF LAND BORDERING THE STRAIT BETWEEN CATICLAN

AND BORACAY SHALL ADVERSELY AFFECT THE FRAIL ECOLOGICAL BALANCE
OF THE AREA.[68]

abuse of discretion because the laws on EIS, namely, Presidential Decree Nos. 1151 and 1586,
as well as Presidential Proclamation No. 2146, clearly indicate that projects in environmentally
critical areas are to be immediately considered environmentally critical. Petitioner complains

Petitioner objects to respondent Provinces classification of the reclamation project as

single instead of co-located, as non-environmentally critical, and as a mere rehabilitation of
the existing jetty port.Petitioner points out that the reclamation project is on two sites (which

that respondent Province applied for an ECC only forPhase 1; hence, unlawfully
evading the requirement that co-located projects[74] within Environmentally Critical Areas
(ECAs) must submit a PEIS and/or a PEPRMP.

are situated on the opposite sides of Tabon Strait, about 1,200 meters apart):
Petitioner argues that respondent Province fraudulently classified and
36.82 hectares Site 1, in Bgy. Caticlan
3.18 hectares Site 2, in Manoc-manoc, Boracay Island [69]

misrepresented the project as a Non-ECP in an ECA, and as a single project instead of a colocated one. The impact assessment allegedly performed gives a patently erroneous and
wrongly-premised appraisal of the possible environmental impact of the reclamation

Phase 1, which was started in December 2010 without the necessary permits, [70] is
located on the Caticlan side of a narrow strait separating mainland Aklan from Boracay. In the
implementation of the project, respondent Province obtained only an ECC to conduct Phase 1,
instead of an ECC on the entire 40 hectares. Thus, petitioner argues that respondent Province

project. Petitioner contends that respondent Provinces choice of classification was designed to
avoid a comprehensive impact assessment of the reclamation project.

Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately
disregarded its duty to ensure that the environment is protected from harmful developmental

issued and the MOA between respondents PRA and Province had already been executed. As
the petitioner saw it, these were not consultations but mere project presentations.

projects because it allegedly performed only a cursory and superficial review of the documents
submitted by the respondent Province for an ECC, failing to note that all the information and

Petitioner claims that respondent Province, aided and abetted by respondents PRA

data used by respondent Province in its application for the ECC were all dated and not current,

and DENR-EMB, ignored the spirit and letter of the Revised Procedural Manual, intended to

as data was gathered in the late 1990s for the ECC issued in 1999 for the first jetty port. Thus,

implement the various regulations governing the Environmental Impact Assessments (EIAs) to

petitioner alleges that respondent DENR-EMB RVI ignored the environmental impact to

ensure that developmental projects are in line with sustainable development of natural

Boracay, which involves changes in the structure of the coastline that could contribute to the

resources. The project was conceptualized without considering alternatives.

changes in the characteristics of the sand in the beaches of both Caticlan and Boracay.
Further, as to its allegation that respondent Province failed to perform a full EIA,
Petitioner insists that reclamation of land at the Caticla n side will unavoidably

petitioner argues that while it is true that as of now, only the Caticlan side has been issued an

adversely affect the Boracay side and notes that the declared objective of the reclamation

ECC, the entire project involves the Boracay side, which should have been considered a co-

project is for the exploitation of Boracays tourist trade, since the project is intended to

located project. Petitioner claims that any project involving Boracay requires a full EIA since

enhance support services thereto. But, petitioner argues, the primary reason for Boracays

it is an ECA. Phase 1 of the project will affect Boracay and Caticlan as they are separated only

popularity is its white-sand beaches which will be negatively affected by the project.

by a narrow strait; thus, it should be considered an ECP. Therefore, the ECC and permit issued
must be invalidated and cancelled.

Petitioner alleges that respondent PRA had required respondent Province to obtain
the favorable endorsement of the LGUs of Barangay Caticlan and Malay Municipality pursuant
to the consultation procedures as required by the Local Government Code.

[75]

Petitioner contends that a study shows that the flow of the water through a narrower

Petitioner

channel due to the reclamation project will likely divert sand transport off the southwest part

asserts that the reclamation project is in violation not only of laws on EIS but also of the Local

of Boracay, whereas the characteristic coast of the Caticlan side of the strait indicate stronger

Government Code as respondent Province failed to enter into proper consultations with the

sediment transport.[77] The white-sand beaches of Boracay and its surrounding marine

concerned LGUs. In fact, the Liga ng mga Barangay-Malay Chapter also expressed strong

environment depend upon the natural flow of the adjacent waters.

opposition against the project.

[76]

Regarding its claim that the reclamation of land bordering the strait between Caticlan
Petitioner cites Sections 26 and 27 of the Local Government Code, which require

and Boracay shall adversely affect the frail ecological balance of the area, petitioner submits

consultations if the project or program may cause pollution, climactic change, depletion of

that while the study conducted by the MERF-UPMSI only considers the impact of the

non-renewable resources,etc. According to petitioner, respondent Province ignored the LGUs

reclamation project on the land, it is undeniable that it will also adversely affect the already

opposition expressed as early as 2008. Not only that, respondent Province belatedly called for

frail ecological balance of the area. The effect of the project would have been properly

public consultation meetings on June 17 and July 28, 2010, after an ECC had already been

assessed if the proper EIA had been performed prior to any implementation of the project.

should have observed the difference between the future development plan of respondent
According to petitioner, respondent Provinces intended purposes do not prevail over

Province from its actual project being undertaken. [83]

its duty and obligation to protect the environment. Petitioner believes that rehabilitation of
the Jetty Port may be done through other means.

Respondent Province clearly does not dispute the fact that it revised its original
application to respondent PRA from 2.64 hectares to 40 hectares. However, it claims that such

In its Comment[78] dated June 21, 2011, respondent Province claimed that application

revision is part of itsfuture plan, and implementation thereof is still subject to availability of

for reclamation of 40 hectares is advantageous to the Provincial Government considering that

funds, independent scientific environmental study, separate application of ECC and notice to

its filing fee would only cost Php20,000.00 plus Value Added Tax (VAT) which is also the

proceed to be issued by respondent PRA.[84]

minimum fee as prescribed under Section 4.2 of Administrative Order No. 2007 -2.[79]
Respondent Province goes on to claim that [p]etitioners version of the Caticlan jetty
Respondent Province considers the instant petition to be premature; thus, it must

port expansion project is a bigger project which is still at the conceptualization stage. Although

necessarily fail for lack of cause of action due to the failure of petitioner to fully exhaust the

this project was described in the Notice to Proceed issued by respondent PRA to have two

available administrative remedies even before seeking judicial relief. According to respondent

phases, 36.82 hectares in Caticlan and 3.18 hectares in Boracay [Island,] it is totally different

Province, the petition primarily assailed the decision of respondent DENR-EMB RVI in granting

from the [ongoing] Caticlan jetty port expansion project. [85]

the ECC for the subject project consisting of 2.64 hectares and sought the cancellation of the
ECC for alleged failure of respondent Province to submit proper documentation as required for

Respondent Province says that the Accomplishment Report [86] of its Engineering

its issuance. Hence, the grounds relied upon by petitioner can be addressed within the

Office would attest that the actual project consists of 2.64 hectares only, as originally planned

confines of administrative processes provided by law.

and conceptualized, which was even reduced to 2.2 hectares due to some construction and
design modifications.

Respondent Province believes that under Section 5.4.3 of DENR Administrative Order
No. 2003-30 (DAO 2003-30),[80] the issuance of an ECC[81] is an official decision of DENR-EMB

Thus, respondent Province alleges that from its standpoint, its capability to reclaim is

It cites Section 6 of DENR DAO 2003-30,

limited to 2.64 hectares only, based on respondent PRAs Evaluation Report[87] dated October

which provides for a remedy available to the party aggrieved by the final decision on the

18, 2010, which was in turn the basis of the issuance of the Notice to Proceed dated October

proponents ECC applications.

19, 2010, because the projects financial component is P260,000,000.00 only. Said Evaluation

RVI on the application of a project proponent.

[82]

Respondent Province argues that the instant petition is anchored on a wrong premise

Report indicates that the implementation of the other phases of the project including site 2,

that results to petitioners unfounded fears and baseless apprehensions. It is respondent

which consists of the other portions of the 40-hectare area that includes a portion in Boracay,

Provinces contention that its 2.64-hectare reclamation project is considered as a stand alone

is still within the 10-year period and will depend largely on the availability of funds of

project, separate and independent from the approved area of 40 hectares. Thus, petitioner

respondent Province.[88]

So, even if respondent PRA approved an area that would total up to 40 hectares, it
was divided into phases in order to determine the period of its implementation. Each phase

Respondent Province, likewise argues that the 2.64-hectare project is not a

was separate and independent because the source of funds was also separa te. The required

component of the approved 40-hectare area as it is originally planned for the expansion site of

documents and requirements were also specific for each phase. The entire approved area of

the existing Caticlan jetty port.At present, it has no definite conceptual construction plan of

40 hectares could be implemented within a period of 10 years but this would depend solely on

the said portion in Boracay and it has no financial allocation to initiate any project on the said

the availability of funds.[89]

Boracay portion.

As far as respondent Province understands it, additional reclamations not covered by

Furthermore, respondent Province contends that the present project is located in

the ECC, which only approved 2.64 hectares, should undergo another EIA. If respondent

Caticlan while the alleged component that falls within an ECA is in Boracay. Considering its

Province intends to commence the construction on the other component of the 40 hectares,

geographical location, the two sites cannot be considered as a contiguous area for the rea son

then it agrees that it is mandated to secure a new ECC.

[90]

that it is separated by a body of water a strait that traverses between the mainland Panay
wherein Caticlan is located and Boracay. Hence, it is erroneous to consider the two sites as a

Respondent Province admits that it dreamt of a 40-hectare project, even if it had

co-located project within an ECA. Being a stand alone project and an expansion of the existing

originally planned and was at present only financially equipped and legally compliant to

jetty port, respondent DENR-EMB RVI had required respondent Province to perform an EPRMP

undertake 2.64 hectares of the project, and only as an expansion of its old jetty port.

[91]

to secure an ECC as sanctioned by Item No. 8(b), page 7 of DENR DAO 2003 -30.

Respondent Province claims that it has complied with all the necessary requirements

Respondent Province contends that even if, granting for the sake of argument, it had

for securing an ECC. On the issue that the reclamation project is within an ECA requiring the

erroneously categorized its project as Non-ECP in an ECA, this was not a final

performance of a full or programmatic EIA, respondent Province reiterates that the idea of

determination. Respondent DENR-EMB RVI, which was the administrator of the EIS system,

expanding the area to 40 hectares is only a future plan. It only secured an ECC for 2.64

had the final decision on this matter. Under DENR DAO 2003-30, an application for ECC, even

hectares, based on the limits of its funding and authority. From the beginning, its intention

for a Category B2 project where an EPRMP is conducted, shall be subjected to a review

was to rehabilitate and expand the existing jetty port terminal to accommodate an increasing

process. Respondent DENR-EMB RVI had the authority to deny said application. Its Regional

projected traffic. The subject project is specifically classified under DENR DAO 2003-30 on its

Director could either issue an ECC for the project or deny the application. He may also require

Project Grouping Matrix for Determination of EIA Report Type considered as Minor

a more comprehensive EIA study. The Regional Director issued the ECC based on the EPRMP

Reclamation Projects falling under Group II Non ECP in an ECA. Whether 2.64 or 40 hectares in

submitted by respondent Province and after the same went through the EIA review process.

area, the subject project falls within this classification.

Thus, respondent Province concludes that petitioners allegation of this being a coConsequently, respondent Province claims that peti tioner erred in considering the
ongoing reclamation project at Caticlan, Malay, Aklan, as co-located within an ECA.

located project is premature if not baseless as the bigger reclamation project is still on the

conceptualization stage.Both respondents PRA and Province are yet to complete studies and
feasibility studies to embark on another project.

Respondent Province posits that the spirit and intent of Sections 26 and 27 of the
Local Government Code is to create an avenue for parties, the proponent and the LGU
concerned, to come up with a tool in harmonizing its vi ews and concerns about the

Respondent Province claims that an ocular survey of the reclamation project revealed
that it had worked within the limits of the ECC.

[92]

project. The duty to consult does not automatically require adherence to the opinions during
the consultation process. It is allegedly not within the provisions to give the full authority to
the LGU concerned to unilaterally approve or disapprove the project in the guise of requiring

With regard to petitioners allegation that respondent Province failed to get the

the proponent of securing its favorable endorsement. In this case, petitioner is calling a halt to

favorable endorsement of the concerned LGUs in violation of the Local Government Code,

the project without providing an alternative resolution to harmonize its position and that of

respondent Province contends that consultation vis--vis the favorable endorsement from the

respondent Province.

concerned LGUs as contemplated under the Local Government Code are merely tools to seek
advice and not a power clothed upon the LGUs to unilaterally approve or disapprove any

Respondent Province claims that the EPRMP [94] would reveal that:

government projects. Furthermore, such endorsement is not necessary for projects falling
under Category B2 unless required by the DENR-EMB RVI, under Section 5.3 of DENR DAO
2003-30.

Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance
of permits and certifications as a pre-requisite for the issuance of an ECC. Respondent Province
claims to have conducted consultative activities with LGUs in connection with Sections 26 and
27 of the Local Government Code. The vehement and staunch objections of both
the Sangguniang Barangay of Caticlan and the Sangguniang Bayan of Malay, according to
respondent Province, were not rooted on its perceived impact upon the people and the
community in terms of environmental or ecological balance, but due to an all eged conflict with
their principal position to develop, utilize and reap benefits from the natural resources found
within its jurisdiction.[93] Respondent Province argues that these concerns are not within the
purview of the Local Government Code. Furthermore, the Preliminary Geohazard Assessment
Report and EPRMP as well as Sangguniang Panlalawigan Resolution Nos. 2010-022 and 2010034 should address any envi ronmental issue they may raise.

[T]he area fronting the project site is practically composed of sand. Dead
coral communities may be found along the vicinity. Thus, fish life at the
project site is quite scarce due to the absence of marine support systems
like the sea grass beds and coral reefs.
x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the
deepest point of jetty to the shallowest point, there was no more coral
patch and the substrate is sandy. It is of public knowledge that the said
foreshore area is being utilized by the residents ever since as berthing or
anchorage site of their motorized banca. There will be no possibility of any
coral development therein because of its continuous utilization. Likewise,
the activity of the strait that traverses between the main land Caticlan and
Boracay Island would also be a factor of the coral development. Corals
[may] only be formed within the area if there is scientific human
intervention, which is absent up to the present.
In light of the foregoing premise, it casts serious doubt on
petitioners allegations pertaining to the environmental effects of
Respondent-LGUs 2.64 hectares reclamation project. The alleged
environmental impact of the subject project to the beaches of Boracay
Island remains unconfirmed. Petitioner had unsuccessfully proven that the
project would cause imminent, grave and irreparable injury to the
community.[95]

Respondent Province prayed for the dissolution of the TEPO, claiming that the rules
provide that the TEPO may be dissolved if it appears after hearing that its issuance or

6. Respondent province is mandated to assign its IRA, regular income

and/or such other revenues or funds as permitted by law; if project is
stopped, detriment of the public welfare and its constituents. [96]

continuance would cause irreparable damage to the party or person enjoined, while the
applicant may be fully compensated for such damages as he may suffer and subject to the
posting of a sufficient bond by the party or person enjoined. Respondent Province contends

As to the second ground for the dissolution of the TEPO, respondent Province argues:

that the TEPO would cause irreparable damage in two aspects:

a.

Financial dislocation and probable bankruptcy; and

b.

Grave and imminent danger to safety and health of inhabitants of immediate

1.

Non-compliance with the guidelines of the ECC may result to

environmental hazards most especially that reclaimed land if not
properly secured may be eroded into the sea.

2.

The construction has accomplished 65.26 percent of the project. The

embankment that was deposited on the project has no proper concrete
wave protection that might be washed out in the event that a strong
typhoon or big waves may occur affecting the strait and the properties
along the project site. It is already the rainy season and there is a big
possibility of typhoon occurrence.

3.

If said incident occurs, the aggregates of the embankment that had

been washed out might be transferred to the adjoining properties
which could affect its natural environmental state.

4.

It might result to the total alteration of the physi cal landscape of the
area attributing to environmental disturbance.

area, including tourists and passengers serviced by the jetty port, brought about
by the abrupt cessation of development works.
As regards financial dislocation, the arguments of respondent Province are
summarized below:
1.

This project is financed by bonds which the respondent Province had

issued to its creditors as the financing scheme in funding the present
project is by way of credit financing through bond flotation.

2.

The funds are financed by a Guarantee Bank getting payment from

bonds, being sold to investors, which in turn would be paid by the
income that the project would realize or incur upon its completion.

3.

While the project is under construction, respondent Province is

appropriating a portion of its Internal Revenue Allotment (IRA) budget
from the 20% development fund to defray the interest and principal
amortization due to the Guarantee Bank.

4. The respondent Provinces IRA, regular income, and/or such other

revenues or funds, as may be permitted by law, are being used as
security for the payment of the said loan used for the projects
construction.
5. The inability of the subject project to earn revenues as projected upon
completion will compel the Province to shoulder the full amount of the
obligation, starting from year 2012.

5. The lack of proper concrete wave protection or revetment would cause

the total erosion of the embankment that has been dumped on the
accomplished area.[97]

Respondent Province claims that petitioner will not stand to suffer immediate, grave
and irreparable injury or damage from the ongoing project. The petitioners perceived fear of
environmental destruction brought about by its erroneous appreciation of available data is
unfounded and does not translate into a matter of extreme urgency. Thus, under the Rules of
Procedure on Environmental Cases, the TEPO may be diss olved.

Respondent PRA filed its Comment [98] on June 22, 2011. It alleges that on June 24,
2006, Executive Order No. 543 delegated the power to approve rec lamation projects to

respondent PRA through its governing Board, subject to compliance with existing laws and

One of the conditions that respondent PRA Board imposed before approving the

rules and further subject to the condition that reclamation contracts to be executed with any

Aklan project was that no reclamation work could be started until respondent PRA has

person or entity (must) go through public bidding.

approved the detailed engineering plans/methodology, design and specifications of the

reclamation. Part of the required submissions to respondent PRA includes the drainage design

Section 4 of respondent PRAs Administrative Order No. 2007-2 provides for the
approval

process

and

procedures

for

various

reclamation

projects

to

as approved by the Public Works Department and the ECC as issued by the DENR, all of which

be

the Aklan government must submit to respondent PRA before starting any reclamation

undertaken. Respondent PRA prepared an Evaluation Report on November 5,

works.[103] Under Article IV(B)(3) of the MOA between respondent PRA and Aklan, the latter is

2009 [99] regarding Aklans proposal to increase its project to 40 hectares.

required to submit, apart from the ECC, the following requirements for respondent PRAs
review and approval, as basis for the issuance of a Notice to Proceed (NTP) for Reclamation

Respondent PRA contends that it was only after respondent Province had complied

Works:

with the requirements under the law that respondent PRA, through its Board of Directors,
approved the proposed project under its Board Resolution No. 4094.[100] In the same
Resolution, respondent PRA Board authorized the General Manager/CEO to execute a MOA
with the Aklan provincial government to implement the reclamation project under certain
conditions.

The issue for respondent PRA was whether or not it approved the respondent

(a)

Land-form plan with technical description of the metes and

bounds of the same land-form;

(b)

Final master development and land use plan for the project;

(c)

Detailed engineering studies, detailed engineering design, plans

and specification for reclamation works, reclamation plans and
methodology, plans for the sources of fill materials;

(d)

Drainage plan vis-a-vis the land-form approved by DPWH

Regional Office to include a cost effective and efficient drainage
system as may be required based on the results of the studies;

(e)

Detailed project cost estimates and quantity take-off per items

of work of the rawland reclamation components, e.g. reclamation
containment structures and soil consolidation;

(f)

Organizational chart of the construction arm, manning table,

equipment schedule for the project; and,

(g)

Project timetable (PERT/CPM) for the entire project construction

period.[104]

Provinces 2.64-hectare reclamation project proposal in willful disregard of alleged numerous

irregularities as claimed by petitioner.[101]

Respondent PRA claims that its approval of the Aklan Reclamation Project was in
accordance with law and its rules. Indeed, it issued the notice to proceed only after Aklan had
complied with all the requirements imposed by existing laws and regulations. It further
contends that the 40 hectares involved in this project remains a plan insofar as respondent
PRA is concerned. What has been approved for reclamation by respondent PRA thus far is
only the 2.64-hectare reclamation project. Respondent PRA reiterates that it approved this
reclamation project after extensively reviewing the legal, technical, financial, environmental,
and operational aspects of the proposed reclamation. [102]

In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the
MOA to strictly comply with all conditions of the DENR-EMB-issued ECC and/or comply with

pertinent local and international commitments of the Republic of the Philippines to ensure
environmental protection.[105]

(d) Reclamation Methodology;

(e) Sources of Fill Materials, and,
(f) The ECC.[109]

In its August 11, 2010 letter,[106] respondent PRA referred for respondent Provinces
appropriate action petitioners Resolution 001, series of 2010 and Resolution 46, series of 2010,
of the Sangguniang Bayan of Malay. Governor Marquez wrote respondent PRA[107] on
September 16, 2010 informing it that respondent Province had already met with the different
officials of Malay, furnishing respondent PRA with the copies of the minutes of such
meetings/presentations. Governor Marquez also assured respondent PRA that it had complied
with the consultation requirements as far as Malay was concerned.

Respondent PRA claims that in evaluating respondent Provinces project and in issuing the
necessary NTP for Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port expansion and
modernization, respondent PRA gave considerable weight to all pertinent issuances, especially
the ECC issued by DENR-EMB RVI.[108] Respondent PRA stresses that its earlier approval of the
40-hectare reclamation project under its Resolution No. 4094, series of 2010, still requires a
second level of compliance requirements from the proponent. Respondent Province could not
possibly begin its reclamation works since respondent PRA had yet to issue an NTP in its favor.

Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for Phase
1 of Site 1, it required the submission of the following pre-construction documents:
(a) Land-Form Plan (with technical description);
(b) Site Development Plan/Land Use Plan including,

Respondent PRA claims that it was only after the evaluation of the above submissions that it
issued to respondent Province the NTP, limited to the 2.64-hectare reclamation
project. Respondent PRA even emphasized in its evaluation report that should respondent
Province pursue the other phases of its project, it would still require the submission of an ECC
for each succeeding phases before the start of any reclamation works. [110]

Respondent PRA, being the national governments arm in regulating and coordinating all
reclamation projects in the Philippines a mandate conferred by law manifests that it is
incumbent upon it, in the exercise of its regulatory functions, to diligently evaluate, based on
its technical competencies, all reclamation projects submitted to it for approval.Once the
reclamation projects requirements set forth by law and related rules have been complied with,
respondent PRA is mandated to approve the same. Respondent PRA claims, [w]ith all the
foregoing rigorous and detailed requirements submitted and complied with by Aklan, and the
attendant careful and meticulous technical and legal evaluation by respondent PRA, it cannot
be argued that the reclamation permit it issued to Aklan is founded upon numerous
irregularities; as recklessly and baselessly imputed by BFI. [111]

In its Comment[112] dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of issuing
the ECC certifies that the project had undergone the proper EIA process by assessing, among
others, the direct and indirect impact of the project on the biophysical and human

(i) sewer and drainage systems and

(ii) waste water treatment;
(c) Engineering Studies and Engineering Design;

environment and ensuring that these impacts are addressed by appropriate environmental
protection and enhancement measures, pursuant to Presidential Decree No. 1586, the Revised
Procedural Manual for DENR DAO 2003-30, and the existing rules and regulations.[113]

Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which

Although petitioner insists that the project involves 40 hectares in two sites,

includes Boracay as tourist zone and marine reserve under Proclamation No. 1801, has no

respondent DENR-EMB RVI looked at the documents submitted by respondent Province and

relevance to the expansion project of Caticlan Jetty Port and Passenger Terminal for the very

saw that the subject area covered by the ECC application and subsequently granted with ECC-

reason that the project is not located in the Island of Boracay, being located in Barangay

R6-1003-096-7100 consists only of 2.64 hectares; hence, respondent DENR-EMB RVI could not

Caticlan, Malay, which is not a part of mainland Panay. It admits that the site of the subject

comment on the excess area.[118]

jetty port falls within the ECA under Proclamation No. 2146 (1981), being within the category
of a water body. This was why respondent Province had faithfully secured an ECC pursuant to

Respondent DENR-EMB RVI admits that as regards the classification of the 2.64-

the Revised Procedural Manual for DENR DAO 2003-30 by submitting the necessary

hectare reclamation project under Non ECP in ECA, this does not fall within the definition of

documents as contained in the EPRMP on March 19, 2010, which were the bases in granting

a co-located project because the subject project is merely an expansion of the old Caticlan

ECC No. R6-1003-096-7100 (amended) on April 27, 2010 for the expansion of Caticlan Jetty

Jetty Port, which had a previously issued ECC (ECC No. 0699-1012-171 on October 12,

Port and Passenger Terminal, covering 2.64 hectares.

[114]

Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and Malay
had been considered by the DENR-Provincial Environment and Natural Resources Office
(PENRO), Aklan in the issuance of the Order

[115]

1999). Thus, only an EPRMP, not a PEIS or PEPRMP, is required.[119]

Respondent Province submitted to respondent DENR-EMB RVI the following

documents contained in the EPRMP:

dated January 26, 2010, disregarding the claim

of the Municipality of Malay, Aklan of a portion of the foreshore land in Caticlan covered by

a.

The Observations on the Floor Bottom and its Marine Resources at the
Proposed Jetty Ports at Caticlan and Manok-manok, Boracay, Aklan,
conducted in 1999 by the Bureau of Fisheries Aquatic Resources (BFAR)
Central Office, particularly in Caticlan site, and

b.

The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and

Geosciences Bureau (MGB), Central Office and Engr. Roger Esto,
Provincial Planning and Development Office (PPDO), Aklan in 2009
entitled Preliminary Geo-hazard Assessment for the Enhancement of
the Existing Caticlan Jetty Port Terminal through Beach Zone
Restoration and Protective Marina Development in Malay, Aklan.

the application of the Province of Aklan; and another Order of Rejection dated February 5,
2010 of the two foreshore applications, namely FLA No. 060412-43A and FLA No. 060412-43B,
of the Province of Aklan.[116]

Respondent DENR-EMB RVI contends that the supporting documents attached to the EPRMP
for the issuance of an ECC were merely for the expansion and modernization of the old jetty
port in Barangay Caticlan covering 2.64 hectares, and not the 40-hectare reclamation project
in Barangay Caticlan and Boracay. The previous letter of respondent Province dated October
14, 2009 addressed to DENR-EMB RVI Regional Executive Director, would show that the
reclamation project will cover approximately 2.6 hectares.[117] This application for ECC was not
officially accepted due to lack of requirements or documents.

Respondent DENR-EMB RVI claims that the above two scientific studies were enough
for it to arrive at a best professional judgment to issue an amended ECC for the Aklan Marina
Project covering 2.64 hectares.[120] Furthermore, to confirm that the 2.64-hectare reclamation
has no significant negative impact with the surrounding environment particularly in Boracay, a
more recent study was conducted, and respondent DENR-EMB RVI alleges that [i]t is very

important to highlight that the input data in the [MERF- UPMSI] study utilized the [40-hectare]

of the real extent of the contested reclamation project as certainly the ECC covered only a

reclamation and [200-meter] width seaward using the tidal and wave modelling.[121] The study

total of 2,691 square meters located in Barangay Caticlan, Malay, Aklan; and although the

showed that the reclamation of 2.64 hectares had no effect to the hydrodynamics of the strait

MOA spoke of 40 hectares, respondent Provinces submission of documents to respondent PRA

between Barangay Caticlan and Boracay.

pertaining to said area was but the first of a two-step process of approval.Respondent
Province claims that its failure to comply with the documentary requirements of respondent

Respondent DENR-EMB RVI affirms that no permits and/or clearances from National

PRA within the period provided, or 120 working days from the effectivity of the MOA,

Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum

indicated its waiver to pursue the remainder of the project.[125] Respondent Province further

Circular No. 2007-08, entitled Simplifying the Requirements of ECC or CNC Applications; that

manifested:

the EPRMP was evaluated and processed based on the Revised Procedural Manual for DENR
DAO 2003-30 which resulted to the issuance of ECC-R6-1003-096-7100; and that the ECC is not
a permit per se but a planning tool for LGUs to consider in its decision whether or not to issue
a local permit.[122]

Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed
and deprived the DENR Secretary of the opportunity to review and/or reverse the decision of
his subordinate office, EMB RVI pursuant to the Revised Procedural Manual for DENR DAO
2003-30. There is no extreme urgency that necessitates the granting of Mandamus or issuance
of TEPO that put to balance between the life and death of the petitioner or present grave or
irreparable damage to environment.[123]

After receiving the above Comments from all the respondents, the Court set the case
for oral arguments on September 13, 2011.

Meanwhile, on September 8, 2011, respondent Province filed a Manifestation and

Confirming this in a letter dated 12 August 2011,[126] Governor

Marquez informed respondent PRA that the Province of Aklan is no longer
pursuing the implementation of the succeeding phases of the project with a
total area of 37.4 hectares for our inability to comply with Article IV B.2 (3)
of the MOA; hence, the existing MOA will cover only the project area of
2.64 hectares.
In his reply-letter dated August 22, 2011,[127] [respondent] PRA
General Manager informed Governor Marquez that the [respondent] PRA
Board of Directors has given [respondent] PRA the authority to confirm
the position of the Province of Aklan that the Aklan Beach Zone
Restoration and Protection Marine Development Project will now be
confined to the reclamation and development of the 2.64 hectares, more
or less.
It is undisputed from the start that the coverage of the Project is in
fact limited to 2.64 hectares, as evidenced by the NTP issued by respondent
PRA. The recent exchange of correspondence between respondents
Province of Aklan and [respondent] PRA further confirms the intent of the
parties all along. Hence, the Project subject of the petition, without doubt,
covers only 2.64 and not 40 hectares as feared. This completely changes the
extent of the Project and, consequently, moots the issues and fears
expressed by the petitioner.[128] (Emphasis supplied.)

Motion[124] praying for the dismissal of the petition, as the province was no longer pursuing the
implementation of the succeeding phases of the project due to its inability to comply with

Based on the above contentions, respondent Province prays that the petition be

Article IV B.2(3) of the MOA; hence, the issues and fears expressed by petitioner had become

dismissed as no further justiciable controversy exists since the feared adverse effect to

moot. Respondent Province alleges that the petition is premised on a serious misappreciation

Boracay Islands ecology had become academic all together. [129]

project, had categorically addressed all the issues raised by the Petitioner in its Petition dated
The Court heard the parties oral arguments on September 13, 2011 and gave the

June 1, 2011. Respondent Province prays as follows:

latter twenty (20) days thereafter to file their respective memoranda.

Respondent Province filed another Manifestation and Motion,[130] which the Court
received on April 2, 2012 stating that:

1.

it had submitted the required documents and studies to respondent

DENR-EMB RVI before an ECC was issued in its favor;

2.

WHEREFORE, premises considered, it is most respectfully prayed

of this Honorable Court that after due proceedings, the following be
rendered:
1. The Temporary Environmental Protection Order (TEPO) it
issued on June 7, 2011 be lifted/dissolved.
2. The instant petition be dismissed for being moot and
academic.
3. Respondent Province of Aklan prays for such other reliefs
that are just and equitable under the premises. (Emphases in
the original.)

it had substantially complied with the requirements provided under PRA

Administrative Order 2007-2, which compliance caused respondent PRAs
Board to approve the reclamation project; and

3.

ISSUES

it had conducted a series of consultative [presentations] relative to the

reclamation project before the LGU of Malay Municipality, the Barangay

The Court will now resolve the following issues:

Officials of Caticlan, and stakeholders of Boracay Island.

I.

Whether or not the petition should be dismissed for having been

rendered moot and academic

II.

Whether or not the petition is premature because petitioner failed to

exhaust administrative remedies before filing this case

III.

Whether or not respondent Province failed to perform a full EIA as required

by laws and regulations based on the scope and classification of the project

IV.

Whether or not respondent Province complied with all the requirements

under the pertinent laws and regulations

V.

Whether or not there was proper, timely, and sufficient public consultation
for the project
DISCUSSION

Respondent Province further manifested that the Barangay Council of Caticlan,

Malay, Aklan enacted on February 13, 2012 Resolution No. 003, series of 2012, entitled
Resolution Favorably Endorsing the 2.6 Hectares Reclamation/MARINA Project of the Aklan
Provincial Government at Caticlan Coastline[131] and that the Sangguniang Bayan of the
Municipality of Malay, Aklan enacted Resolution No. 020, series of 2012, entitled Resolution
Endorsing the 2.6 Hectares Reclamation Project of the Provincial Government of Aklan Located
at Barangay Caticlan, Malay, Aklan.[132]

Respondent Province claims that its compliance with the requirements of

respondents DENR-EMB RVI and PRA that led to the approval of the reclamation project by the
said government agencies, as well as the recent enactments of the Barangay Council of
Caticlan and the Sangguniang Bayan of the Municipality of Malay favorably endorsing the said

On the issue of whether or not the

Petition should be dismissed for

having been rendered moot and

academic

Respondent Province claims in its Manifestation and Motion filed on April 2, 2012
that with the alleged favorable endorsement of the reclamation project by theSangguniang
Barangay of Caticlan and the Sangguniang Bayan of the Municipality of Malay, all the issues
raised by petitioner had already been addressed, and this petition should be dismissed for
being moot and academic.

On the contrary, a close reading of the two LGUs respective resolutions would reveal
that they are not sufficient to render the petition moot and academic, as there are explicit
conditions imposed that must be complied with by respondent Province. In Resolution No.
003, series of 2012, of the Sangguniang Barangay of Caticlan it is stated thatany vertical

conducted several consultations/committee hearings with concerned

departments and the private sector specifically Boracay Foundation, Inc.
and they are one in its belief that this Local Government Unit has never
been against development so long as compliance with the law and proper
procedures have been observed and that paramount consideration have
been given to the environment lest we disturb the balance of nature to
the end that progress will be brought to naught;
WHEREAS, time and again, to ensure a healthy intergovernmental
relations, this August Body requires no less than transparency and faithful
commitment from the Provincial Government of Aklan in the process of
going through these improvements in the Municipality because it once fell
prey to infidelities in matters of governance;
WHEREAS, as a condition for the grant of this endorsement and
to address all issues and concerns, this Honorable Council necessitates a
sincere commitment from the Provincial Government of Aklan to the end
that:
1.

To allocate an office space to LGU-Malay within the building in the

reclaimed area;

2.

To convene the Cagban and Caticlan Jetty Port Management

Board before the resumption of the reclamation project;

3.

That the reclamation project shall be limited only to 2.6 hectares

in Barangay Caticlan and not beyond;

4.

That the local transportation operators/cooperatives will not be

displaced; and

5.

The Provincial Government of Aklan conduct a simultaneous

comprehensive study on the environmental impact of the
reclamation project especially during Habagat and Amihan
seasons and put in place as early as possible mitigating measures
on the effect of the project to the environment.

structures to be constructed shall be subject for barangay endorsement.[133] Clearly, what

the barangay endorsed was the reclamation only, and not the entire project that includes the
construction of a commercial building and wellness center, and other tourism-related
facilities. Petitioners objections, as may be recalled, pertain not only to the reclamation per se,
but also to the building to be constructed and the entire projects perceived ill effects to the
surrounding environment.

Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay[134] is even
more specific. It reads in part:
WHEREAS, noble it seems the reclamation project to the effect
that it will generate scores of benefits for the Local Government of Malay in
terms of income and employment for its constituents, but the fact cannot
be denied that the project will take its toll on the environment especially
on the nearby fragile island of Boracay and the fact also remains that the
project
will eventually displace the local transportation
operators/cooperatives;
WHEREAS, considering the sensitivity of the project, this
Honorable Body through the Committee where this matter was referred

WHEREAS, having presented these stipulations, failure to comply

herewith will leave this August Body no choice but to revoke this
endorsement, hence faithful compliance of the commitment of the
Provincial Government is highly appealed for[.][135] (Emphases added.)

The Sangguniang Bayan of Malay obviously imposed explicit conditions for

respondent Province to comply with on pain of revocation of its endorsement of the project,
including the need to conduct a comprehensive study on the environmental impact of the
reclamation project, which is the heart of the petition before us. Therefore, the contents of

Deciding Authority
EMB Regional Office Director
EMB Central Office Director
DENR Secretary
(Emphases supplied.)

Where to file the appeal

Office of the EMB Director
Office of the DENR Secretary
Office of the President

the two resolutions submitted by respondent Province do not support its conclusion that the
subsequent favorable endorsement of the LGUs had already addres sed all the issues raised
and rendered the instant petition moot and academic.

Respondents argue that since there is an administrative appeal provided for, then
petitioner is duty bound to observe the same and may not be granted recourse to the regular
courts for its failure to do so.

On the issue of failure to exhaust

administrative remedies
We do not agree with respondents appreciation of the applicability of the rule on
Respondents, in essence, argue that the present petition should be dismissed for
petitioners failure to exhaust administrative remedies and even to observe the hierarchy of
courts. Furthermore, as the petition questions the issuance of the ECC and the NTP, this
involves factual and technical verification, which are more properly within the expertise of the
concerned government agencies.

Respondents anchor their argument on Section 6, Article II of DENR DAO 2003 -30, which
provides:
Section 6. Appeal
Any party aggrieved by the final decision on the ECC / CNC
applications may, within 15 days from receipt of such decision, file an
appeal on the following grounds:
a.
b.

Grave abuse of discretion on the part of the deciding authority, or

Serious errors in the review findings.

The DENR may adopt alternative conflict/dispute resolution procedures as a

means to settle grievances between proponents and aggrieved parties to
avert unnecessary legal action. Frivolous appeals shall not be countenanced.
The proponent or any stakeholder may file an appeal to the following:

exhaustion of administrative remedies in this case. We are reminded of our ruling inPagara v.
Court of Appeals,[136] which summarized our earlier decisions on the procedural requirement of
exhaustion of administrative remedies, to wit:
The rule regarding exhaustion of administrative remedies is not a hard and
fast rule. It is not applicable (1) where the question in dispute is purely a
legal one, or (2) where the controverted act is patently illegal or was
performed without jurisdiction or in excess of jurisdiction; or (3) where the
respondent is a department secretary, whose acts as an alter ego of the
President bear the implied or assumed approval of the latter, unless actually
disapproved by him, or (4) where there are circumstances indicating the
urgency of judicial intervention, -Gonzales vs. Hechanova, L-21897, October
22, 1963, 9 SCRA 230; Abaya vs. Villegas, L-25641, December 17, 1966, 18
SCRA; Mitra vs. Subido, L-21691, September 15, 1967, 21 SCRA 127.
Said principle may also be disregarded when it does not provide a plain,
speedy and adequate remedy, (Cipriano vs. Marcelino, 43 SCRA 291), when
there is no due process observed (Villanos vs. Subido, 45 SCRA 299), or
where the protestant has no other recourse (Sta. Maria vs. Lopez, 31 SCRA
637).[137] (Emphases supplied.)

As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR
DAO 2003-30 is only applicable, based on the first sentence thereof, if the person or entity
charged with the duty to exhaust the administrative remedy of appeal to the appropriate

government agency has been a party or has been made a party in the proceedings wherein the
decision to be appealed was rendered. It has been established by the facts that petitioner
was never made a party to the proceedings before respondent DENR-EMB RVI. Petitioner
was only informed that the project had already been approved after the ECC was already
granted.[138] Not being a party to the said proceedings, it does not appear that petitioner was
officially furnished a copy of the decision, from which the 15-day period to appeal should be
reckoned, and which would warrant the application of Section 6, Article II of DENR DAO 2003 30.

Thus, a government agencys inaction, if any, has serious

implications on the future of environmental law enforcement. Private
individuals, to the extent that they seek to change the scope of the
regulatory process, will have to rely on such agencies to take the initial
incentives, which may require a judicial component. Accordingly,
questions regarding the propriety of an agencys action or inaction will
need to be analyzed.
This point is emphasized in the availability of the remedy of the
writ of mandamus, which allows for the enforcement of the conduct of the
tasks to which the writ pertains: the performance of a legal
duty.[142] (Emphases added.)

Although petitioner was not a party to the proceedings where the decision to issue
an ECC was rendered, it stands to be aggrieved by the decision,[139] because it claims that the
reclamation of land on the Caticlan side would unavoidably adversely affect the Boracay side,
where petitioners members own establishments engaged in the tourism trade. As noted
earlier, petitioner contends that the declared objective of the reclamation project is to exploit
Boracays tourism trade because the project is intended to enhance support services thereto;

The writ of continuing mandamus permits the court to retain jurisdiction after
judgment in order to ensure the successful implementation of the reliefs mandated under the
courts decision and, in order to do this, the court may compel the submission of compliance
reports from the respondent government agencies as well as avail of other means to monitor
compliance with its decision.[143]

however, this objective would not be achieved since the white-sand beaches for which
Boracay is famous might be negatively affected by the project.Petitioners conclusion is that
respondent Province, aided and abetted by respondents PRA and DENR-EMB RVI, ignored the
spirit and letter of our environmental laws, and should thus be compelled to perform their
duties under said laws.

According to petitioner, respondent Province acted pursuant to a MOA with

respondent PRA that was conditioned upon, among others, a properly-secured ECC from
respondent DENR-EMB RVI. For this reason, petitioner seeks to compel respondent Province to
comply with certain environmental laws, rules, and procedures that it claims were either
circumvented or ignored. Hence, we find that the petition was appropriately filed with this

The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a
relief for petitioner under the writ of continuing mandamus, which is a special civil action that
may be availed of to compel the performance of an act specifically enjoined by law [140] and
which provides for the issuance of a TEPO as an auxiliary remedy prior to the issuance of the
writ itself.[141] The Rationale of the said Rules explains the writ in this wise:
Environmental law highlights the shift in the focal -point from the
initiation of regulation by Congress to the implementation of regulatory
programs by the appropriate government agencies.

Court under Rule 8, Section 1, A.M. No. 09-6-8-SC, which reads:

SECTION 1. Petition for continuing mandamus.When any agency or
instrumentality of the government or officer thereof unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting
from an office, trust or station in connection with the enforcement or
violation of an environmental law rule or regulation or a right therein, or
unlawfully excludes another from the use or enjoyment of such right and
there is no other plain, speedy and adequate remedy in the ordinary course
of law, the person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty, attaching thereto supporting

evidence, specifying that the petition concerns an environmental law, rule

or regulation, and praying that judgment be rendered commanding the
respondent to do an act or series of acts until the judgment is fully satisfied,
and to pay damages sustained by the petitioner by reason of the malicious
neglect to perform the duties of the respondent, under the law, rules or
regulations. The petition shall also contain a sworn certification of nonforum shopping.
SECTION 2. Where to file the petition.The petition shall be filed
with the Regional Trial Court exercising jurisdiction over the territory where
the actionable neglect or omission occurred or with the Court of Appeals or
the Supreme Court.

documents filed by respondent Province describe commercial establishments to be built,

among others, to raise revenues for the LGU; thus, it should have been c lassified as a new
project. Petitioner likewise cries foul to the manner by which respondent Province allegedly
circumvented the documentary requirements of the DENR-EMB RVI by the act of connecting
the reclamation project with its previous project in 1999 and claiming that the new project is a
mere expansion of the previous one.

As previously discussed, respondent Province filed a Manifestation and Motion

stating that the ECC issued by respondent DENR-EMB RVI covered an area of 2,691 square

Petitioner had three options where to file this case under the rule: the Regional Trial

meters in Caticlan, and its application for reclamation of 40 hectares with respondent PRA was

Court exercising jurisdiction over the territory where the actionable neglect or omission

conditioned on its submission of specific documents within 120 days.Respondent Province

occurred, the Court of Appeals, or this Court.

claims that its failure to comply with said condition indicated its waiver to pursue
the succeeding phases of the reclamation project and that the subject matter of this case had

Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of

thus been limited to 2.64 hectares. Respondent PRA, for its part, declared through its General

law to determine the questions of unique national and local importance raised here that

Manager that the Aklan Beach Zone Restoration and Protection Marine Development Project

pertain to laws and rules for environmental protection, thus it was justified in coming to this

will now be confined to the reclamation and development of the 2.64 hectares, more or

Court.

less.[144]

Having resolved the procedural issue, we now move to the substantive issues.

The Court notes such manifestation of respondent Province. Assuming, however, that
the area involved in the subject reclamation project has been limited to 2.64 hectares, this

On the issues of whether, based on

the scope and classification of the
project, a full EIA is required by laws
and regulations, and whether
respondent Province complied with
all the requirements under the
pertinent laws and regulations
Petitioners arguments on this issue hinges upon its claim that the reclamation project
is misclassified as a single project when in fact it is co-located. Petitioner also questions the
classification made by respondent Province that the reclamation project is merely an
expansion of the existing jetty port, when the project descriptions embodied in the different

case has not become moot and academic, as alleged by respondents, because the Court still
has to check whether respondents had complied with all applicable environmental laws, rules,
and regulations pertaining to the actual reclamation project.

We recognize at this point that the DENR is the government agency vested with
delegated powers to review and evaluate all EIA reports, and to grant or deny ECCs to project
proponents.[145] It is the DENR that has the duty to implement the EIS system. It appears,
however, that respondent DENR-EMB RVIs evaluation of this reclamation project was
problematic, based on the valid questions raised by petitioner.

Procedural Manual, the Summary List of Additional Non-Environmentally-Critical Project

Being the administrator of the EIS System, respondent DENR-EMB RVIs submissions

(NECP) Types in ECAs Classified under Group II (Table I-2) lists buildings, storage facilities and

bear great weight in this case. However, the following are the issues that put in question the

other structures as a separate item from transport terminal facilities. This creates the question

wisdom of respondent DENR-EMB RVI in issuing the ECC:

of whether this project should be considered as consisting of more than one type of activity,
and should more properly be classified as co-located, under the following definition from the

1.

Its approval of respondent Provinces classification of the project as a mere

expansion of the existing jetty port in Caticlan, instead of class ifying it as
a new project;

2.

Its classification of the reclamation project as a single instead of a colocated project;

3.

The lack of prior public consultations and approval of local government

agencies; and

4.

The lack of comprehensive studies regarding the impact of the reclamation

same Manual, which reads:

f) Group IV (Co-located Projects in either ECA or NECA): A co-located
project is a group of single projects, under one or more
proponents/locators, which are located in a contiguous area and
managed by one administrator, who is also the ECC
applicant. The co-located project may be an economic zone or
industrial park, or a mix of projects within a catchment, watershed
or river basin, or any other geographical, political or economic unit
of area. Since the location or threshold of specific projects within
the contiguous area will yet be derived from the EIA process based
on the carrying capacity of the project environment, the nature of
the project is called programmatic. (Emphasis added.)

project to the environment.

The above issues as raised put in question the sufficiency of the evaluation of the
project by respondent DENR-EMB RVI.

Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the
project to address the question of whether this could be deemed as a group of single projects
(transport terminal facility, building, etc.) in a contiguous area managed by respondent
Province, or as a single project.

Nature of the project

The third item in the above enumeration will be discussed as a separate issue.
The first question must be answered by respondent DENR-EMB RVI as the agency
with the expertise and authority to state whether this is a new project, subject to the more
rigorous environmental impact study requested by petitioner, or it is a mere expansion of the
existing jetty port facility.

The second issue refers to the classification of the project by respondent Province,
approved by respondent DENR-EMB RVI, as single instead of co-located. Under the Revised

The answer to the fourth question depends on the final classification of the project
under items 1 and 3 above because the type of EIA study required under the Revised
Procedural Manual depends on such classification.

5.

Health and wellness center

Province as project proponent, and what was in turn overlooked by respondent DENR-EMB

6.

Access road - 12 m (wide)

RVI, for it is defined as follows:

7.

An [EIA] is a process that involves predicting and evaluating the likely

impacts of a project (including cumulative impacts) on the environment during
construction, commissioning, operation and abandonment. It also includes designing
appropriate preventive, mitigating and enhancement measures addressing these
consequences to protect the environment and the communitys
welfare.[146] (Emphases supplied.)

8.

The very definition of an EIA points to what was most likely neglected by respondent

Parking, perimeter fences, lighting and water treatment

sewerage system
Rehabilitation of existing jetty port and terminal

xxxx
The succeeding phases of the project will consist of [further] reclamation,
completion of the commercial center building, bay walk commercial strip,
staff building, ferry terminal, a cable car system and wharf marina. This will
entail an additional estimated cost of P785 million bringing the total
investment requirement to about P1.0 billion.[147] (Emphases added.)

Thus, the EIA process must have been able to predict the likely impact of the
reclamation project to the environment and to prevent any harm that may otherwise be

As may be gleaned from the breakdown of the 2.64 hectares as described by respondent

caused.

Province above, a significant portion of the reclaimed area would be devoted to the
construction of a commercial building, and the area to be utilized for the expansion of the jetty
The project now before us involves reclamation of land that is more than five times

port consists of a mere 3,000 square meters (sq. m). To be true to its definition, the EIA report

the size of the original reclaimed land. Furthermore, the area prior to construction merely

submitted by respondent Province should a t the very least predict the impact that the

contained a jetty port, whereas the proposed expansion, as described in the EPRMP submitted

construction of the new buildings on the reclaimed land would have on the surrounding

by respondent Province to respondent DENR-EMB RVI involves so much more, and we quote:

environment. These new constructions and their environmental effects were not covered by
the old studies that respondent Province previously submitted for the construction of the

The expansion project will be constructed at the north side of the

existing jetty port and terminal that will have a total area of 2.64 hectares,
more or less, after reclamation. The Phase 1 of the project construction
costing around P260 million includes the following:
1.

Reclamation - 3,000 sq m (expansion of jetty port)

2.

Reclamation - 13,500 sq m (buildable area)

3.

Terminal annex building - 250 sq m

original jetty port in 1999, and which it re-submitted in its application for ECC in this alleged
expansion, instead of conducting updated and more comprehensive studies.

Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are
separated only by a narrow strait. This becomes more imperative because of the significant
contributions of Boracays white-sand beach to the countrys tourism trade, which requires

4.

2-storey commercial building 2,500 sq m (1,750 sq m of

leasable space)

respondent Province to proceed with utmost caution in implementing projects within its
vicinity.

We had occasion to emphasize the duty of local government units to ensure the
quality of the environment under Presidential Decree No. 1586 in Republic of the Philippines v.

private sectors. The local government units, as part of the machinery of

the government, cannot therefore be deemed as outside the scope of the
EIS system.[149] (Emphases supplied.)

The City of Davao,[148] wherein we held:

Section 15 of Republic Act 7160, otherwise known as the Local
Government Code, defines a local government unit as a body politic and
corporate endowed with powers to be exercised by it in conformity with
law. As such, it performs dual functions, governmental and proprietary.
Governmental functions are those that concern the health, safety and the
advancement of the public good or welfare as affecting the public generally.
Proprietary functions are those that seek to obtain special corporate
benefits or earn pecuniary profit and intended for private advantage and
benefit. When exercising governmental powers and performing
governmental duties, an LGU is an agency of the national government.
When engaged in corporate activities, it acts as an agent of the community
in the administration of local affairs.

The Court chooses to remand these matters to respondent DENR-EMB RVI for it to
make a proper study, and if it should find necessary, to require respondent Province to address
these environmental issues raised by petitioner and submit the correct EIA report as required
by the projects specifications. The Court requires respondent DENR-EMB RVI to complete its
study and submit a report within a non-extendible period of three months. Respondent DENREMB RVI should establish to the Court in said report why the ECC it issued for the subject
project should not be canceled.

Lack of prior public consultation

Found in Section 16 of the Local Government Code is the duty of
the LGUs to promote the peoples right to a balanced ecology. Pursuant to
this, an LGU, like the City of Davao, can not claim exemption from the
coverage of PD 1586. As a body politic endowed with governmental
functions, an LGU has the duty to ensure the quality of the environment,
which is the very same objective of PD 1586.

The Local Government Code establishes the duties of national government agencies
in the maintenance of ecological balance, and requires them to secure prior public consultation
and approval of local government units for the projects described therein.

xxxx
Section 4 of PD 1586 clearly states that no person, partnership or
corporation shall undertake or operate any such declared environmentally
critical project or area without first securing an Environmental Compliance
Certificate issued by the President or his duly authorized representative. The
Civil Code defines a person as either natural or juridical. The state and its
political subdivisions, i.e., the local government units are juridical persons.
Undoubtedly therefore, local government units are not excluded from the
coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law intends to
implement the policy of the state to achieve a balance between socioeconomic development and environmental protection, which are the twin
goals of sustainable development. The above-quoted first paragraph of the
Whereas clause stresses that this can only be possible if we adopt a
comprehensive and integrated environmental protection program where
all the sectors of the community are involved, i.e., the government and the

In the case before us, the national agency involved is respondent PRA. Even if the
project proponent is the local government of Aklan, it is respondent PRA which authorized the
reclamation, being the exclusive agency of the government to undertake reclamation
nationwide. Hence, it was necessary for respondent Province to go through respondent PRA
and to execute a MOA, wherein respondent PRAs authority to reclaim was delegated to
respondent Province. Respondent DENR-EMB RVI, regional office of the DENR, is also a
national government institution which is tasked with the issuance of the ECC that is a
prerequisite to projects covered by environmental laws such as the one at bar.

This project can be classified as a national project that affects the environmental and

will be implemented. Obviously, none of these effects will be produced by

the introduction of lotto in the province of Laguna. [152] (Emphasis added.)

ecological balance of local communities, and is covered by the requirements found in the Local
Government Code provisions that are quoted below:
During the oral arguments held on September 13, 2011, it was established that this
Section 26. Duty of National Government Agencies in the
Maintenance of Ecological Balance. - It shall be the duty of every national
agency or government-owned or controlled corporation authorizing or
involved in the planning and implementation of any project or program that
may cause pollution, climatic change, depletion of non-renewable
resources, loss of crop land, rangeland, or forest cover, and extinction of
animal or plant species, to consult with the local government units,
nongovernmental organizations, and other sectors concerned and explain
the goals and objectives of the project or program, its impact upon the
people and the community in terms of environmental or ecological balance,
and the measures that will be undertaken to prevent or minimize the
adverse effects thereof.
Section 27. Prior Consultations Required. - No project or program
shall be implemented by government authorities unless the consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and prior
approval of the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be implemented shall not be
evicted unless appropriate relocation sites have been provided, in
accordance with the provisions of the Constitution.

In Lina, Jr. v. Pao,[150] we held that Section 27 of the Local Government Code applies only to

project as described above falls under Section 26 because the commercial establishments to
be built on phase 1, as described in the EPRMP quoted above, could cause pollution as it could
generate garbage, sewage, and possible toxic fuel discharge. [153]

Our ruling in Province of Rizal v. Executive Secretary [154] is instructive:

We reiterated this doctrine in the recent case of Bangus Fry
Fisherfolk v. Lanzanas, where we held that there was no statutory
requirement for the sangguniang bayan of Puerto Galera to approve the
construction of a mooring facility, as Sections 26 and 27 are inapplicable to
projects which are not environmentally critical.
Moreover, Section 447, which enumerates the powers, duties and
functions of the municipality, grants the sangguniang bayan the power to,
among other things, enact ordinances, approve resolutions and appropriate
funds for the general welfare of the municipality and its inhabitants
pursuant to Section 16 of th(e) Code. These include:
(1)

Approving ordinances and passing resolutions to protect the

environment and impose appropriate penalties for acts
which endanger the environment, such as dynamite
fishing and other forms of destructive fishing, illegal
logging and smuggling of logs, smuggling of natural
resources products and of endangered species of flora
and fauna, slash and burn farming, and such other
activities which result in pollution, acceleration of
eutrophication of rivers and lakes, or of ecologica l
imbalance; [Section 447 (1)(vi)]

(2)

Prescribing reasonable limits and restraints on the use of

property
within
the
jurisdiction
of
the
municipality, adopting a comprehensive land use plan for
the municipality, reclassifying land within the jurisdiction
of the city, subject to the pertinent provisions of this

national programs and/or projects which are to be implemented in a particular local

community[151] and that it should be read in conjunction with Section 26. We held further in
this manner:
Thus, the projects and programs mentioned in Section 27 should
be interpreted to mean projects and programs whose effects are among
those enumerated in Section 26 and 27, to wit, those that: (1) may cause
pollution; (2) may bring about climatic change; (3) may cause the depletion
of non-renewable resources; (4) may result in loss of crop land, range-land,
or forest cover; (5) may eradicate certain animal or plant species from the
face of the planet; and (6) other projects or programs that may call for the
eviction of a particular group of people residing in the locality where these

Code, enacting integrated zoning ordinances in

consonance with the approved comprehensive land use
plan, subject to existing laws, rules and regulations;
establishing fire limits or zones, particularly in populous
centers; and regulating the construction, repair or
modification of buildings within said fire limits or zones in
accordance with the provisions of this Code; [Section 447
(2)(vi-ix)]
(3)

Approving ordinances which shall ensure the efficient and

effective delivery of the basic services and facilities as
provided for under Section 17 of this Code, and in
addition to said services and facilities, providing for the
establishment,
maintenance,
protection,
and
conservation of communal forests and watersheds, tree
parks, greenbelts, mangroves, and other similar forest
development projects and, subject to existing laws,
establishing and providing for the maintenance, repair
and operation of an efficient waterworks system to
supply water for the inhabitants and purifying the source
of the water supply; regulating the construction,
maintenance, repair and use of hydrants, pumps, cisterns
and reservoirs; protecting the purity and quantity of the
water supply of the municipality and, for this
purpose, extending the coverage of appropriate
ordinances over all territory within the drainage area of
said water supply and within one hundred (100) meters
of the reservoir, conduit, canal, aqueduct, pumping
station, or watershed used in connection with the water
service; and regulating the consumption, use or wastage
of water. [Section 447 (5)(i) & (vii)]

Under the Local Government Code, therefore, two requisites

must be met before a national project that affects the environmental and
ecological balance of local communities can be implemented:
prior consultation with the affected local communities, and
prior approval of the project by the appropriate sanggunian. Absent
either of these mandatory requirements, the projects implementation is
illegal.[155] (Emphasis added.)

Based on the above, therefore, prior consultations and prior approval are required
by law to have been conducted and secured by the respondent Province.Accordingly, the

information dissemination conducted months after the ECC had already been issued was
insufficient to comply with this requirement under the Local Government Code. Had they been
conducted properly, the prior public consultation should have considered the ecological or
environmental concerns of the stakeholders and studied measures alternative to the project,
to avoid or minimize adverse environmental impact or damage. In fact, respondent Province
once tried to obtain the favorable endorsement of the Sangguniang Bayan of Malay, but this
was denied by the latter.

Moreover, DENR DAO 2003-30 provides:

5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of public hearing as part of the
EIS review is mandatory unless otherwise determined by EMB. For
all other undertakings, a public hearing is not mandatory unless
specifically required by EMB.
Proponents should initiate public consultations early in order to ensure
that environmentally relevant concerns of stakeholders are taken
into consideration in the EIA study and the formulation of the
management plan. All public consultations and public hearings
conducted during the EIA process
are to be
documented. The public hearing/consultation Process report shall
be validated by the EMB/EMB RD and shall constitute part of the
records of the EIA process. (Emphasis supplied.)

In essence, the above-quoted rule shows that in cases requiring public consultations, the same
should be initiated early so that concerns of stakeholders could be taken into consideration in
the EIA study. In this case, respondent Province had already filed its ECC application before it
met with the local government units of Malay and Caticlan.

The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National
Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum
Circular No. 2007-08. However, we still find that the LGC requirements of consultation and

approval apply in this case. This is because a Memorandum Circular cannot prevail over the
Local Government Code, which is a statute and which enjoys greater weight under our
hierarchy of laws.

xxxx
SECTION 20. The State recognizes the indispensable role of the
private sector, encourages private enterprise, and provides incentives to
needed investments.

Subsequent to the information campaign of respondent Province, the Municipality of

Malay and the Liga ng mga Barangay-Malay Chapter still opposed the project. Thus, when

The protection of the environment in accordance with the aforesaid constitutional mandate is

respondent Province commenced the implementation project, it violated Section 27 of the

the aim, among others, of Presidential Decree No. 1586, Establishing an Environmental Impact

LGC, which clearly enunciates that [no] project or program shall be implemented by

Statement System, Including Other Environmental Management Related Measures and For

government authorities unless the consultations mentioned in Sections 2(c) and 26 hereof are

Other Purposes, which declared in its first Section that it is the policy of the State to attain

complied with, and prior approval of the sanggunian concerned is obtained.

and maintain a rational and orderly balance between socio-economic growth and
environmental protection.

The lack of prior public consultation and approval is not corrected by the subsequent
endorsement of the reclamation project by the Sangguniang Barangay of Caticlan onFebruary
13, 2012, and the Sangguniang Bayan of the Municipality of Malay on February 28, 2012,
which were both undoubtedly achieved at the urging and insistence of respondent Province.
As we have established above, the respective resolutions issued by the LGUs concerned did
not render this petition moot and academic.

The parties undoubtedly too agree as to the importance of promoting tourism,

pursuant to Section 2 of Republic Act No. 9593, or The Tourism Act of 2009, which reads:
SECTION 2. Declaration of Policy. The State declares tourism as an
indispensable element of the national economy and an industry of
national interest and importance, which must be harnessed as an engine of
socioeconomic growth and cultural affirmation to generate investment,
foreign exchange and employment, and to continue to mold an enhanced
sense of national pride for all Filipinos. (Emphasis ours.)

It is clear that both petitioner and respondent Province are interested in the
promotion of tourism in Boracay and the protection of the environment, lest they kill the
proverbial hen that lays the golden egg. At the beginning of this decision, we mentioned that
there are common goals of national significance that are very apparent from both the

The primordial role of local government units under the Constitution and the Local
Government Code of 1991 in the subject matter of this case is also unquestionable. The Local
Government Code of 1991 (Republic Act No. 7160) pertinently provides:

petitioners and the respondents respective pleadings and memoranda.

The parties are evidently in accord in seeking to uphold the mandate found in Article
II, Declaration of Principles and State Policies, of the 1987 Constitution, which we quote below:
SECTION 16. The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with the rhythm and
harmony of nature.

Section 2. Declaration of Policy. - (a) It is hereby declared the

policy of the State that the territorial and political subdivisions of the
State shall enjoy genuine and meaningful local autonomy to enable them
to attain their fullest development as self-reliant communities and make
them more effective partners in the attainment of national goals. Toward
this end, the State shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization
whereby local government units shall be given more powers, authority,

responsibilities, and resources. The process of decentralization shall

proceed from the national government to the local government
units.[156] (Emphases ours.)

a.

fully cooperate with respondent DENR-EMB RVI in its review of the

reclamation project proposal and submit to the latter the appropriate
report and study; and

As shown by the above provisions of our laws and rules, the speedy and smooth

b. secure approvals from local government units and hold proper

resolution of these issues would benefit all the parties. Thus, respondent Provinces

consultations

cooperation with respondent DENR-EMB RVI in the Court-mandated review of the proper

stakeholders and sectors concerned as required by Section 27 in relation

classification and environmental impact of the reclamation project is of utmost importance.

to Section 26 of the Local Government Code.

WHEREFORE, premises considered, the petition is hereby PARTIALLY GRANTED. The

TEPO

issued

by

this

Court

is

hereby

converted

into

writ

with

non-governmental

organizations

and

other

3. Respondent Philippine Reclamation Authority shall closely monitor the

of

submission by respondent Province of the requirements to be issued by

continuingmandamus specifically as follows:

respondent DENR-EMB RVI in connection to the environmental concerns raised

by petitioner, and shall coordinate with respondent Province in modifying the

1.

Respondent

Department

of Environment

and

Natural Resources-

MOA, if necessary, based on the findings of respondent DENR-EMB RVI.

Environmental Management Bureau Regional Office VI shall revisit and review

the following matters:

4.

The petitioner Boracay Foundation, Inc. and the respondents The Province of
Aklan, represented by Governor Carlito S. Marquez, The Philippine

a.

its classification of the reclamation project as a single instead of a co-

Reclamation Authority, and The DENR-EMB (Region VI) are mandated to

located project;

submit their respective reports to this Court regarding their compliance with
the requirements set forth in this Decision no later than three (3) months from

b. its approval of respondent Provinces classification of the project as a mere

the date of promulgation of this Decision.

expansion of the existing jetty port in Caticlan, instead of classifying it as a

new project; and
c.

the impact of the reclamation project to the environment based on new,

5.

In the meantime, the respondents, their concerned contractor/s, and/or their

updated, and comprehensive studies, which should forthwith be ordered

agents, representatives or persons acting in their place or stead, shall

by respondent DENR-EMB RVI.

immediately cease and desist from continuing the implementation of the

project covered by ECC-R6-1003-096-7100 until further orders from this

2.

Respondent Province of Aklan shall perform the following:

Court. For this purpose, the respondents shall report within five (5) days to this

Court the status of the project as of their receipt of this Decision, copy
furnished the petitioner.

This Decision is immediately executory.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

LEONARDO-DE CASTRO, J.:

Before Us are two consolidated Petitions filed under Rule 65 of the 1997 Rules of Court,
concerningService 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
EN BANC
G.R. No. 180771, April 21, 2015
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TANON STRAIT, E.G., TOOTHED
WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, JOINED IN AND
REPRESENTED HEREIN BY HUMAN BEINGS GLORIA ESTENZO RAMOS AND ROSE-LIZA EISMAOSORIO, IN THEIR CAPACITY AS LEGAL GUARDIANS OF THE LESSER LIFE-FORMS AND AS
RESPONSIBLE STEWARDS OF GOD'S CREATIONS, Petitioners, v. SECRETARY ANGELO REYES, IN
HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENERGY (DOE), SECRETARY JOSE L.
ATIENZA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES (DENR), LEONARDO R. SIBBALUCA, DENR REGIONAL DIRECTORREGION VII AND IN HIS CAPACITY AS CHAIRPERSON OF THE TANON STRAIT PROTECTED
SEASCAPE MANAGEMENT BOARD, BUREAU OF FISHERIES AND AQUATIC RESOURCES (BFAR),
DIRECTOR MALCOLM I. SARMIENTO, JR., BFAR REGIONAL DIRECTOR FOR REGION VII
ANDRES M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), AS REPRESENTED
BY ITS PHILIPPINE AGENT, SUPPLY OILFIELD SERVICES, INC., Respondents.
G.R. No. 181527
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL,
RAMON YANONG, FRANCISCO LABID, IN THEIR PERSONAL CAPACITY AND AS
REPRESENTATIVES OF THE SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF
ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE PRESENT AND
FUTURE GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY
AFFECTED, Petitioners,v. SECRETARY ANGELO REYES, IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF ENERGY (DOE), JOSE L. ATIENZA, IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR), LEONARDO R.
SIBBALUCA, IN HIS CAPACITY AS DENR REGIONAL DIRECTOR-REGION VII AND AS
CHAIRPERSON OF THE TAON STRAIT PROTECTED SEASCAPE MANAGEMENT BOARD, ALAN
ARRANGUEZ, IN HIS CAPACITY AS DIRECTOR ENVIRONMENTAL MANAGEMENT BUREAUREGION VII, DOE REGIONAL DIRECTOR FOR REGION VIII1 ANTONIO LABIOS, JAPAN
PETROLEUM EXPLORATION CO., LTD. (JAPEX), AS REPRESENTED BY ITS PHILIPPINE AGENT,
SUPPLY OILFIELD SERVICES, INC., Respondent.
DECISION

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, andMandamus, 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 Taon 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 Taon 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 copetitioner is former President Gloria Macapagal-Arroyo, for her express declaration and
undertaking in the ASEAN Charter to protect the Taon 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 DENR-Regional Director for Region VII and Chairman of the Taon 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-102 (GSEC-102) with JAPEX. This contract
involved geological and geophysical studies of the Taon 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 Taon
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 Taon Strait.8

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 Taon 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.

From May 9 to 18, 2005, JAPEX conducted seismic surveys in and around the Taon Strait. A
multi-channel sub-bottom profiling covering approximately 751 kilometers was also done to
determine the area's underwater composition.9

On May 26, 2008, the FIDEC manifested 20 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.

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 Taon 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 "Establishing An Environmental Impact Statement System, Including Other
Environmental Management Related Measures And For Other Purposes." 11

On June 19, 2008, public respondents filed their Manifestation 21 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.

On January 31, 2007, the Protected Area Management Board 12 of the Taon Strait (PAMBTaon 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 Taon 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 17, 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

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:chanroblesvirtuallawlibrary
G.R. No. 180771 (Resident Marine Mammals of the Protected Seascape Taon 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:chanroblesvirtuallawlibrary
Atty. Aristeo O.
20 th Floor Pearlbank Centre
Cario
Counsel for
Respondent
146 Valero Street
Supply
Oilfield Services,
Salcedo Village, Makati City
Inc.
JAPEX Philippines 20 th Floor Pearlbank Centre

Ltd.
146 Valero Street
Salcedo Village, Makati City
JAPEX Philippines th
19 Floor Pearlbank Centre
Ltd.
c/o Atty. Maria
146 Valero Street
Farah Z.G.
Nicolas-Suchianco Salcedo Village, Makati City
Atty. Maria Farah
Suite 2404 Discovery Centre
Z.G.
Nicolas-Suchianco 25 ADB Avenue
Resident Agent of
Ortigas Center, Pasig City
JAPEX
Philippines Ltd.
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 Taon 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 Februa ry 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.
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:chanroblesvirtuallawlibrary
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:chanroblesvirtuallawlibrary

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 moti on, 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.chanRoblesvirtualLawlibrary
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."31Petitioners 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 prerequisite to the issuance of the ECC, were not held prior to the ECC's issuance.
In its separate petition, petitioner FIDEC confirms petitioners Resident Marine Mammals and
Stewards' allegations of reduced fish catch and lack of public consultations or discussions with
the fisherfolk and other stakeholders prior to the issuance of the ECC. Moreover, it alleges that
during the seismic surveys and drilling, it was barred from entering and fishing within a 7kilometer radius from the point where the oilrig was located, an area greater than the 1.5kilometer radius "exclusion zone" stated in the IEE.33It 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.34 It further claims
that despite several requests for copies of all the documents pertaining to the project in Taflon
Strait, only copies of the PAMB-Taon Strait Resolution and the ECC were given to the
fisherfolk.35
Public Respondents' Counter-Allegations
Public respondents, through the Solicitor General, contend that petitioners Resident Marine
Mammals and Stewards have no legal standing to file the present petition; that SC-46 does not
violate the 1987 Constitution and the various laws cited in the petitions; that the ECC was
issued in accordance with existing laws and regulations; that public respondents may not be
compelled by mandamus to furnish petitioners copies of all documents relating to SC-46; and
that all the petitioners failed to show that they are entitled to injunctive relief. They further
contend that the issues raised in these petitions have been rendered moot and academic by

the fact that SC-46 had been mutually terminated by the parties thereto effective June 21,
2008.36
ISSUES
The following are the issues posited by petitioners Resident Marine Mammals and Stewards in
G.R. No. 180771:chanroblesvirtuallawlibrary
I.

WHETHER OR NOT PETITIONERS HAVE LOCUS STANDI TO FILE THE INSTANT

PETITION;

II.

WHETHER OR NOT SERVICE CONTRACT NO. 46 IS VIOLAT[IVE] OF THE 1987

PHILIPPINE CONSTITUTION AND STATUTES;

III.

WHETHER OR NOT THE ON-GOING EXPLORATION AND PROPOSED EXPLOITATION

FOR OIL AND NATURAL GAS AT, AROUND, AND UNDERNEATH THE MARINE WATERS
OF THE TANON STRAIT PROTECTED SEASCAPE IS INCONSISTENT WITH THE PHILIPPINE
COMMITMENTS TO INTERNATIONAL ENVIRONMENTAL LAWS AND INSTRUMENTS;
AND

IV.

WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE

CERTIFICATE (ECC) IN ENVIRONMENTALLY CRITICAL AREAS AND HABITATS OF
MARINE WILDLIFE AND ENDANGERED SPECIES IS LEGAL AND PROPER.37

Meanwhile, in G.R. No. 181527, petitioner FIDEC presented the following issues for our
consideration:chanroblesvirtuallawlibrary
I.

WHETHER OR NOT SERVICE CONTRACT NO. 46 EXECUTED BETWEEN RESPONDENTS

DOE AND JAPEX SHOULD BE NULLIFIED AND SET ASIDE FOR BEING IN DIRECT
VIOLATION OF SPECIFIC PROVISIONS OF THE 1987 PHILIPPINE CONSTITUTION AND
APPLICABLE LAWS;

II.

WHETHER OR NOT THE OFF-SHORE OIL EXPLORATION CONTEMPLATED UNDER

SERVICE CONTRACT NO. 46 IS LEGALLY PERMISSIBLE WITHOUT A LAW BEING DULY
PASSED EXPRESSLY FOR THE PURPOSE;

III.

WHETHER OR NOT THE OIL EXPLORATION BEING CONDUCTED WITHIN THE TANON
STRAIT PROTECTED SEASCAPE VIOLATES THE RIGHTS AND LEGAL PROTECTION
GRANTED TO PETITIONERS UNDER THE CONSTITUTION AND APPLICABLE LAWS.

IV.

WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE

CERTIFICATE (ECC) FOR SUCH AN ENVIRONMENTALLY CRITICAL PROJECT INSIDE AN
ENVIRONMENTALLY CRITICAL AREA SUCH AS THE TANON STRAIT PROTECTED

SEASCAPE CONFORMED TO LAW AND EXISTING RULES AND REGULATIONS ON THE

MATTER.
V.

WHETHER OR NOT THE RESPONDENTS MAY BE COMPELLED BY MANDAMUS TO

FURNISH PETITIONERS WITH COPIES OF THE DOCUMENTS PERTAINING TO THE
TANON STRAIT OIL EXPLORATION PROJECT.38

In these consolidated petitions, this Court has determined that the various issues raised by the
petitioners may be condensed into two primary issues:
I.

II.

Procedural Issue: Locus Standi of the Resident Marine Mammals and Stewards,
petitioners in G.R. No. 180771; and
Main Issue: Legality of Sendee 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.chanRoblesvirtualLawlibrary
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 stipulationpour 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 Taon Strait a nd 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.:chanroblesvirtuallawlibrary
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-ininterest 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 of animal rights and environmental law.
Petitioners Resident Marine Mammals and Stewards cited the 1972 United States case Sierra
Club v. Rogers C.B. Morton,49wherein Justice William O. Douglas, dissenting to the
conventional thought on legal standing, opined:chanroblesvirtuallawlibrary
The critical question of "standing" would be simplified and also put neatl y 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 modern
technology and modem life. The river, for example, is the living symbol of all the life it sustains
or nourishesfish, aquatic insects, water ouzels, 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 waterwhether it be a fisherman, a canoeist,
a zoologist, or a loggermust 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.:chanroblesvirtuallawlibrary
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:chanroblesvirtuallawlibrary
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:chanroblesvirtuallawlibrary
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 inOposa 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 Commission 55 held that:chanroblesvirtuallawlibrary
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 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."56Furthermore, 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.chanRoblesvirtualLawlibrary
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:chanroblesvirtuallawlibrary
Her Excellency Gloria Macapagal-Arroyo, also of legal age, Filipino and resident of
Malacaang 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.58cralawlawlibrary
This is incorrect.
Section 10, Rule 3 of the Rules of Court provides:chanroblesvirtuallawlibrary
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 copetitioner. 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.chanRoblesvirtualLawlibrary
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 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:chanroblesvirtuallawlibrary
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:chanroblesvirtuallawlibrary
Summation of the ConCom Deliberations
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 termservice
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 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.68cralawlawlibrary
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:chanroblesvirtuallawlibrary
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 s tandard
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.

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.:chanroblesvirtuallawlibrary
SECTION 534. Repealing Clause. (a) Batas Pambansa Blg. 337, otherwi se 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.

(2) The President shall be the signatory for the government because, s upposedly 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.

(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded
projects.

(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.69cralawlawlibrary
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.

(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 Dec ree No.
972, as amended, and

1. The General Law on Oil Exploration

(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 Villarea 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:chanroblesvirtuallawlibrary
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

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:chanroblesvirtuallawlibrary
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.

should be preferred.73 This Court, in Pangandaman v. Commission on Elections74 expounding

on this point, pronounced:chanroblesvirtuallawlibrary
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 Taon
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 SC46, 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:chanroblesvirtuallawlibrary
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:chanroblesvirtuallawlibrary
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 nei ther
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:chanroblesvirtuallawlibrary
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
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, inManila Prince Hotel v.
Government Service Insurance System,79 held:chanroblesvirtuallawlibrary
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:chanroblesvirtuallawlibrary
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.chanRoblesvirtualLawlibrary
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. 9147. 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 NIPAS 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 NIPAS 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 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 geothermal 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 Taon 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 Taon Strait, thus this Court will concentrate on those laws that
pertain particularly to the Taon Strait as a protected seascape.
The Taon 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 Taon
Strait as a protected seascape in 1998 by virtue of Proclamation No. 1234 - Declaring the
Taon 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 Taon Strait Protected
Seascape. During former President Joseph E. Estrada's time, he also constituted the Taon
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 Taon 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 NIPAS 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:chanroblesvirtuallawlibrary
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 NIPAS 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 Taon Strait, pursuant to Proclamation No. 1234, was set aside and declared a protected
area under the category of Protected Seascape. The NIPAS 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 NIPAS Act shall be implemented.95

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.
2146 98 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:chanroblesvirtuallawlibrary
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 Taon 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 Secti on 14 of the NIPAS Act, due to the
following reasons:
1) The Taon 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:chanroblesvirtuallawlibrary

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 take 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 NIPAS areas shall
be allowed only through a law passed by Congress.
It is true that the restrictions found under the NIPAS 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 NIPAS 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:chanroblesvirtuallawlibrary
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 pa rties 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 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 in Section 2 of the NIPAS Act,
to wit:chanroblesvirtuallawlibrary
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 amd 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 pol icy 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 Taon Strait, no such environmental
impact evaluation was done. Unless seismic surveys are part of the management plan of the
Taon Strait, such surveys were dona in violation of Section 12 of the NIPAS Act and Section 4
of Presidential Decree No. 1586, which provides:chanroblesvirtuallawlibrary
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.

SO ORDERED.chanroblesvirtuallawlibrary
Section 9 of Presidential Decree No. 1586 provides for the penalty involving violations of the
ECC requirement:chanroblesvirtuallawlibrary
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 thesuspension
or cancellation of his/its certificates and/or a fine in an amount not to exceed Fifty Thousand
Pesos (P50,000.00) for every violation thereof, at the discretion of the National
Environmental Protection Council. (Emphasis supplied.)
Violations of the NIPAS Act entails the following fines and/or imprisonment under Section
21:chanroblesvirtuallawlibrary
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 (P5,000) nor more than Five hundred thousand pesos (P500,000), 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 of gathering information on the
possible energy resources in the Taon 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 Taon Strait is a NIPAS
area.106Since there is no such law specifically allowing oil exploration and/or extraction in
the Taon 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.cralawred
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.

Sereno, C. J., Carpio, Velasco, Jr., Brion, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez,
Mendoza, Reyes, and Perlas-Bernabe, JJ., concur.
Leonen, J., see concurring opinion.
Jardeleza, J., no part prior OSG action

G.R. No. 209430

EN BANC
G.R. No. 209271, December 08, 2015
INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS,
INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT
SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASIO, DR.
BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN,
ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO,
DR. WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO MERCADO,
NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE
LOPEZ, Respondents.

UNIVERSITY OF THE PHILIPPINES, Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES),

MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP.
TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY,
DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, ATTY. HARRY R. ROQUE, JR., FORMER SEN.
ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN
MARTHINE LOPEZ, Respondents.
DECISION
VILLARAMA, JR., J.:
The consolidated petitions before Us seek the reversal of the Decision 1 dated May 17, 2013
and Resolution2 dated September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No.
00013 which permanently enjoined the conduct of field trials for genetically modified
eggplant.

CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.

The Parties

G.R. No. 209276

Respondent Greenpeace Southeast Asia (Philippines) is the Philippine branch of Greenpeace

Southeast Asia, a regional office of Greenpeace International registered in
Thailand.3 Greenpeace is a non-governmental environmental organization which operates in
over 40 countries and with an international coordinating body in Amsterdam, Netherlands. It is
well known for independent direct actions in the global campaign to pres erve the environment
and promote peace.

ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT AND

NATURAL RESOURCES, BUREAU OF PLANT INDUSTRY AND FERTILIZER AND PESTICIDE
AUTHORITY OF THE DEPARTMENT OF AGRICULTURE, Petitioners, v. COURT OF APPEALS,
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN
MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY.
MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR.
WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO MERCADO,
NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ,
RESPONDENTS. CROP LIFE PHILIPPINES, INC. Petitioner-in-Intervention.
G.R. No. 209301
UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION, INC., Petitioner, v. GREENPEACE
SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGEL INA
GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO
MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY.
HARRY R. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.

Petitioner International Service for the Acquisition of Agri -Biotech Applications, Inc. (ISAAA) is
an international non-profit organization founded in 1990 "to facilitate the acquisition and
transfer of agricultural biotechnology applications from the industrial countries, for the benefit
of resource-poor farmers in the developing world" and ultimately "to alleviate hunger and
poverty in the developing countries." Partly funded by the United States Agency for
International Development (USAID), ISAAA promotes the use of agricultural biotechnology,
such as genetically modified organisms (GMOs).4
Respondent Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG) is a coalition
of local farmers, scientists and NGOs working towards "the sustainable use and management
of biodiversity through farmers' control of genetic and biological resources, agricultural
production, and associated knowledge."
The University of the Philippines Los Bafios (UPLB) is an autonomous constituent of the
University of the Philippines (UP), originally established as the UP College of Agriculture. It is
the center of biotechnology education and research in Southeast Asia and home to at least

four international research and extension centers. Petitioner UPLB Foundation, Inc. (UPLBFI) is
a private corporation organized "to be an instrument for institutionalizing a rational system of
utilizing UPLB expertise and other assets for generating additional revenues and other
resources needed by [UPLB]". Its main purpose is to assist UPLB in "expanding and optimally
utilizing its human, financial, and material resources towards a focused thrust in agriculture,
biotechnology, engineering and environmental sciences and related academic programs and
activities." A memorandum of agreement between UPLBFI and UPLB allows the former to use
available facilities for its activities and the latter to designate from among its staff such
personnel needed by projects.5
Petitioner University of the Philippines (UP) is an institution of higher learning founded in
1908. Under its new charter, Republic Act 9500,6 approved on April 29, 2008 by President
Gloria Macapagal-Arroyo, UP was declared as the national university tasked "to perform its
unique and distinctive leadership in higher education and development." Among others, UP
was mandated to "serve as a research university in various fields of expertise and
specialization by conducting basic and applied research and development, and promoting
research in various colleges and universities, and contributing to the dissemination and
application of knowledge."7
The other individual respondents are Filipino scientists, professors, public officials and ordinary
citizens invoking their constitutionally guaranteed right to health and balanced ecology, and
suing on their behalf and on behalf of future generations of Filipinos.
Factual Background
Biotechnology is a multi-disciplinary field which may be defined as "any technique that uses
living organisms or substances from those organisms to make or modify a product, to improve
plants or animals, or to develop microorganisms for specific uses." 8 Its many applications
include agricultural production, livestock, industrial chemicals and pharmaceuticals.
In 1979, President Ferdinand Marcos approved and provided funding for the establishment of
the National Institute for Applied Microbiology and Biotechnology (BIOTECH) at UPLB. It is the
premier national research and development (R & D) institution applying traditional and
modern biotechnologies in innovating products, processes, testing and analytical services for
agriculture, health, energy, industry and development.9
In 1990, President Corazon C. Aquino signed Executive Order (EO) No. 430 creating the
National Committee on Biosafety of the Philippines (NCBP). NCBP was tasked, among others,
to "identify and evaluate potential hazards involved in initiating genetic engineering
experiments or the introduction of new species and genetically engineered organisms and
recommend measures to minimize risks" and to "formulate and review national policies and
guidelines on biosafety, such as the safe conduct of work on genetic engineering, pests and
their genetic materials for the protection of public health, environment and personnel and
supervise the implementation thereof."

In 1991, NCBP formulated the Philippine Biosafety Guidelines, which governs the regulation of
the importation or introduction, movement and field release of potentially hazardous
biological materials in the Philippines. The guidelines also describe the required physical and
biological containment and safety procedures in handling biological materials. This was
followed in 1998 by the "Guidelines on Planned Release of Genetically Manipulated Organisms
(GMOs) and Potentially Harmful Exotic Species (PHES)."10
On December 29, 1993, the Convention on Biological Diversity (CBD) came into force. This
multilateral treaty recognized that "modern biotechnology has great potential for human wellbeing if developed and used with adequate safety measures for the environment and human
health." Its main objectives, as spelled out in Article 1, are the "conservation of biological
diversity, the sustainable use of its components and the fair and equitable sharing of the
benefits arising out of the utilization of genetic resources."
In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety
(Cartagena Protocol), a supplemental to the CBD. The Cartagena Protocol aims "to contribute
to ensuring an adequate level of the safe transfer, handling and use of living modified
organisms resulting from modern biotechnology that may have adverse effects on the
conservation and sustainable use of biological diversity, taking into account risks to human
health, and specifically focusing on transboundary movements."
On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force on
September 11, 2003. On August 14, 2006, the Philippine Senate adopted Senate Resolution
No. 92 or the "Resolution Concurring in the Ratification of the Cartagena Protocol on Biosafety
(CPB) to the UN Convention on Biological Diversity."
On July 16, 2001, President Gloria Macapagal-Arroyo issued a policy statement reiterating the
government policy of promoting the safe and responsible use of modern biotechnology and its
products as one of several means to achieve and sustain food security, equitable access to
health services, sustainable and safe environment and industry development.11
In April 2002, the Department of Agriculture (DA) issued DA-Administrative Order (AO) No. 08
providing rules and regulations for the importation and release into the environment of plants
and plant products derived from the use of modem biotechnology.
DAO-08-2002 covers the importation or release into the environment of: (1) any plant which
has been altered or produced through the use of modem biotechnology if the donor organism,
host organism, or vector or vector agent belongs to the genera or taxa classified by the Bureau
of Plant Industry (BPI) as meeting the definition of plant pest or is a medium for the
introduction of noxious weeds; or (2) any plant or plant product altered through the use of
modem biotechnology which may pose significant risks to human health and the environment
based on available scientific and technical information.
The country's biosafety regulatory system was further strengthened with the issuance of EO
No. 514 (EO 514) on March 17, 2006, "Establishing the National Biosafety Framework (NBF),

Prescribing Guidelines for its Implementation, and Strengthening the NCBP." The NBF shall
apply to the development, adoption and implementation of all biosafety policies, measures
and guidelines and in making decisions concerning the research, development, handling and
use, transboundary movement, release into the environment and management of regulated
articles.12
EO 514 expressly provides that, unless amended by the issuing departments or agencies, DAO
08-2002, the NCBP Guidelines on the Contained Use of Genetically Modified Organisms, except
for provisions on potentially harmful exotic species which were repealed, and all issuances of
the Bureau of Food and Drugs Authority (FDA) on products of modem biotechnology, shall
continue to be in force and effect.13
On September 24, 2010, a Memorandum of Undertaking14 (MOU) was executed between
UPLBFI, ISAAA and UP Mindanao Foundation, Inc.
(UPMFI), in pursuance of a collaborative research and development project on eggplants that
are resistant to the fruit and shoot borer. Other partner agencies involved in the project were
UPLB through its Institute of Plant Breeding, Maharastra Hybrid Seed Company (MAHYCO) of
India, Cornell University and the Agricultural Biotechnology Support Project II (ABSPII) of US
AID.
As indicated in the Field Trial Proposal15 submitted by the implementing institution (UPLB), the
pest-resistant crop subject of the field trial was described as a "bioengineered eggplant." The
crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt) were incorporated into
the eggplant (talong) genome to produce the protein CrylAc which is toxic to the target insect
pests. CrylAc protein is said to be highly specific to lepidopteran larvae such as the fruit and
shoot borer (FSB), the most destructive insect pest of eggplant.
Under the regulatory supervision of NCBP, a contained experiment was started in 2007 and
officially completed on March 3, 2009. The NCBP thus issued a Certificate of Completion of
Contained Experiment stating that "During the conduct of the experiment, all the biosafety
measures have been complied with and no untoward incident has occurred." 16
BPI issued Biosafety Permits17 to UPLB on March 16, 2010 and June 28, 2010. Thereafter, field
testing of Bt talong commenced on various dates in the following approved trial sites:
Kabacan, North Cotabato; Sta. Maria, Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao City;
and Bay, Laguna.
On April 26, 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace, et al.) filed
a petition for writ of kalikasan and writ of continuing mandamus with prayer for the issuance
of a Temporary Environmental Protection Order (TEPO). They alleged that the Bt talong field
trials violate their constitutional right to health and a balanced ecology considering that (1) the
required environmental compliance certificate under Presidential Decree (PD) No. 1151 was
not secured prior to the project implementation; (2) as a regulated article under DAO 08 2002, Bt talong is presumed harmful to human health and the environment, and there is no

independent, peer-reviewed study on the safety of Bt talong for human consumption and the
environment; (3) a study conducted by Professor Gilles-Eric Seralini showed adverse effects on
rats who were fed Bt corn, while local scientists also attested to the harmful effects of GMOs
to human and animal health; (4) Bt crops can be directly toxic to non-target species as
highlighted by a research conducted in the US which demonstrated that pollen from Bt maize
was toxic to the Monarch butterfly; (5) data from the use of Bt CrylAb maize indicate that
beneficial insects have increased mortality when fed on larvae of a maize pest, the corn borer,
which had been fed on Bt, and hence non-target beneficial species that may feed on eggplant
could be similarly affected; (6) data from China show that the use of Bt crops (Bt cotton) can
exacerbate populations of other secondary pests; (7) the built-in pesticides of Bt crops will
lead to Bt resistant pests, thus increasing the use of pesticides contrary to the claims by GMO
manufacturers; and (8) the 200 meters perimeter pollen trap area in the field testing area set
by BPI is not sufficient to stop contamination of nearby non-Bt eggplants because pollinators
such as honeybees can fly as far as four kilometers and an eggplant is 48% insect-pollinated.
The full acceptance by the project proponents of the findings in the MAHYCO Dossier was
strongly assailed on the ground that these do not precisely and adequately assess the
numerous hazards posed by Bt talong and its field trial.
Greenpeace, et al. further claimed that the Bt talong field test project did not comply with the
required public consultation under Sections 26 & 27 of theLocal Government Code, A random
survey by Greenpeace on July 21, 2011 revealed that ten households living in the area
immediately around the Bt talong experimental farm in Bay, Laguna expressed lack of
knowledge about the field testing in their locality. The Sangguniang Barangay of Pangasugan
in Baybay, Leyte complained about the lack of information on the nature and uncertainties of
the Bt talong field testing in their barangay. The Davao City Government likewise opposed the
project due to lack of transparency and public consultation. It ordered the uprooting
of Bt eggplants at the trial site and disposed them strictly in accordance with protocols relayed
by the BPI through Ms. Merle Palacpac. Such action highlighted the city government's policy
on "sustainable and safe practices." On the other hand, the Sangguniang Bayan of Sta.
Barbara, Iloilo passed a resolution suspending the field testing due to the following: lack of
public consultation; absence of adequate study to determine the effect of Bt talong field
testing on friendly insects; absence of risk assessment on the potential impacts of genetically
modified (GM) crops on human health and the environment; and the possibility of crosspollination of Bteggplants with native species or variety of eggplants, and serious threat to
human health if these products were sold to the market.
Greenpeace, et al. argued that this case calls for the application of the precautionary principle,
the Bt talong field testing being a classic environmental case where scientific evidence as to
the health, environmental and socio-economic safety is insufficient or uncertain and
preliminary scientific evaluation indicates reasonable grounds for concern that there are
potentially dangerous effects on human health and the environment.
The following reliefs are thus prayed for:
a. Upon the filing [of this petition], a Temporary Environment Protection Order should be
issued: (i) enjoining public respondents BPI and FPA of the DA from processing for field testing,

and registering as herbicidal product, Bt talong in the Philippines; (ii) stopping all pending field
testing of Bt talong anywhere in the Philippines; and (in) ordering the uprooting of planted Bt
talong for field trials as their very presence pose significant and irreparable risks to human
health and the environment.
b. Upon the filing [of this petition], issue a writ of continuing mandamus commanding:
(i) Respondents to submit to and undergo the process of environmental impact statement
system under the Environmental Management Bureau;
(ii) Respondents to submit independent, comprehensive, and rigid risk assessment, field tests
report, regulatory compliance reports and supporting documents, and other material
particulars of the Bt talong field trial;
(iii) Respondents to submit all its issued certifications on public information, public
consultation, public participation, and consent of the local government units in the barangays,
municipalities, and provinces affected by the field testing of Bt talong;
(iv) Respondent regulator, in coordination with relevant government agencies and in
consultation with stakeholders, to submit an acceptable draft of an amendment of the
National Bio-Safety Framework of the Philippines, and DA Administrative Order No. 08,
defining or incorporating an independent, transparent, and comprehensive scientific and
socio-economic risk assessment, public information, consultation, and participation, and
providing for their effective implementation, in accord with international safety standards;
and,
(v) Respondent BPI of the DA, in coordination with relevant government agencies, to conduct
balanced nationwide public information on the nature of Bt talong and Bt talong field trial, and
a survey of social acceptability of the same.
c. Upon filing [of this petition], issue a writ of kalikasan commanding Respondents to file their
respective returns and explain why they should not be judicially sanctioned for violating or
threatening to violate or allowing the violation of the above-enumerated laws, principles, and
international principle and standards, or committing acts, which would result into an
environmental damage of such magnitude as to prejudice the life, health, or property of
petitioners in particular and of the Filipino people in general.
d. After hearing and judicial determination, to cancel all Bt talong field experiments that are
found to be violating the abovementioned laws, principles, and international standards; and
recommend to Congress curative legislations to effectuate such
order.18ChanRoblesVirtualawlibrary
On May 2, 2012, the Court issued the writ of kalikasan against ISAAA, Environmental
Management Bureau (EMB)/BPI/Fertilizer and Pesticide Authority (FPA) and UPLB, 18-a ordering
them to make a verified return within a non-extendible period often (10) days, as provided in
Sec. 8, Rule 7 of the Rules of Procedure for Environmental Cases.19
ISAAA, EMB/BPI/FPA, UPLBFI and UPMFI filed their respective verified returns. They all argued

that the issuance of writ of kalikasan is not proper because in the implementation of the Bt
talong project, all environmental laws were complied with, including public consultations in
the affected communities, to ensure that the people's right to a balanced and healthful
ecology was protected and respected. They also asserted that the Bt talong project is not
covered by the Philippine Environmental Impact Statement (PEIS) Law and that Bt talong field
trials will not significantly affect the quality of the environment nor pose a hazard to human
health. ISAAA contended that the NBF amply safeguards the environment policies and goals
promoted by the PEIS Law. On its part, UPLBFI asserted that there is a "plethora of scientific
works and literature, peer-reviewed, on the safety of Bt talong for human
consumption."20 UPLB, which filed an Answer 21 to the petition before the CA, adopted said
position of UPLBFI.
ISAAA argued that the allegations regarding the safety of Bt talong as food are irrelevant in the
field trial stage as none of the eggplants will be consumed by humans or animals, and all
materials that will not be used for analyses will be chopped, boiled and buried following the
Biosafety Permit requirements. It cited a 50-year history of safe use and consumption of
agricultural products sprayed with commercial Bt microbial pesticides and a 14-year history of
safe consumption of food and feed derived from Bt crops. Also mentioned is the almost 2
million hectares of land in the Philippines which have been planted with Bt corn since 2003,
and the absence of documented significant and negative impact to the environment and
human health. The statements given by scientists and experts in support of the allegations of
Greenpeace, et al. on the safety of Bt corn was also addressed by citing the contrary findings in
other studies which have been peer-reviewed and published in scientific journals.
On the procedural aspect, ISAAA sought the dismissal of the petition for writ of kalikasan for
non-observance of the rule on hierarchy of courts and the allegations therein being mere
assertions and baseless conclusions of law. EMB, BPI and FPA questioned the legal standing of
Greenpeace, et al. in filing the petition for writ of kalikasan as they do not stand to suffer any
direct injury as a result of the Bt talong field tests. They likewise prayed for the denial of the
petition for continuing mandamus for failure to state a cause of action and for utter lack of
merit.
UPMFI also questioned the legal standing of Greenpeace, et al. for failing to allege that they
have been prejudiced or damaged, or their constitutional rights to health and a balanced
ecology were violated or threatened to be violated by the conduct of Bt talong field trials.
Insofar as the field trials in Davao City, the actual field trials at Bago Oshiro started on
November 25, 2010 but the plants were uprooted by Davao City officials on December 17-18,
2010. There were no further field trials conducted and hence no violation of constitutional
rights of persons or damage to the environment, with respect to Davao City, occurred which
will justify the issuance of a writ of kalikasan. UPMFI emphasized that under the MOU, its
responsibility was only to handle the funds for the project in their trial site. It pointed out that
in the Field Trial Proposal, Public Information Sheet, Biosafety Permit for Field Testing, and
Terminal Report (Davao City Government) by respondent Leonardo R. Avila III, nowhere does
UPMFI appear either as project proponent, partner or implementing arm. Since UPMFI, which
is separate and distinct from UP, undertook only the fund management of Bt talong field test

project the duration of which expired on July 1, 2011, it had nothing to do with any field trials
conducted in other parts of the country.
Finally, it is argued that the precautionary principle is not applicable considering that the field
testing is only a part of a continuing study being done to ensure that the field trials have no
significant and negative impact on the environment. There is thus no resulting environmental
damage of such magnitude as to prejudice the life, health, property of inhabitants in two or
more cities or provinces. Moreover, the issues raised by Greenpeace, et al. largely involve
technical matters which pertain to the special competence of BPI whose determination
thereon is entitled to great respect and even finality.
By Resolution dated July 10, 2012, the Court referred this case to the CA for acceptance of the
return of the writ and for hearing, reception of evidence and rendition of judgment. 22
CA Proceedings and Judgment
At the preliminary conference held on September 12, 2012, the parties s ubmitted the
following procedural issues: (1) whether or not Greenpeace, et al. have legal standing to file
the petition for writ of kalikasan; (2) whether or not said petition had been rendered moot and
academic by the alleged termination of the Bt talong field testing; and (3) whether or not the
case presented a justiciable controversy.
Under Resolution23 dated October 12, 2012, the CA resolved that: (1) Greenpeace, et al.
possess the requisite legal standing to file the petition for writ ofkalikasan; (2)
assuming arguendo that the field trials have already been terminated, the case is not yet moot
since it is capable of repetition yet evading review; and (3) the alleged non-compliance with
environmental and local government laws present justiciable controversies for resolution by
the court.
The CA then proceeded to hear the merits of the case, adopting the "hot-tub" method wherein
the expert witnesses of both parties testify at the same time. Greenpeace, et al. presented the
following as expert witnesses: Dr. Ben Malayang III (Dr. Malayang), Dr. Charito Medina (Dr.
Medina), and Dr. Tushar Chakraborty (Dr. Chakraborty). On the opposing side were the expert
witnesses in the persons of Dr. Reynaldo Ebora (Dr. Ebora), Dr. Saturnina Halos (Dr. Halos), Dr.
Flerida Cario (Dr. Cario), and Dr. Peter Davies (Dr. Davies). Other witnesses who testified
were: Atty. Carmelo Segui (Atty. Segui), Ms. Merle Palacpac (Ms. Palacpac), Mr. Mario
Navasero (Mr. Navasero) and Dr. Randy Hautea (Dr. Hautea).
On November 20, 2012, Biotechnology Coalition of the Philippines, Inc. (BCPI) filed an Urgent
Motion for Leave to Intervene as Respondent.24 It claimed to have a legal interest in the
subject matter of the case as a broad-based coalition of advocates for the advancement of
modern biotechnology in the Philippines.
In its Resolution25 dated January 16, 2013, the CA denied BCPI's motion for intervention stating
that the latter had no direct and specific interest in the conduct of Bt talong field trials.

On May 17, 2013, the CA rendered a Decision in favor of Greenpeace, et al., as follows:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by
us GRANTING the petition filed in this case. The respondents
are DIRECTED to:chanRoblesvirtualLawlibrary
(a) Permanently cease and desist from further conducting bt talong field trials; and
(b) Protect, preserve, rehabilitate and restore the environment in accordance with the
foregoing judgment of this Court.
No costs.
SO ORDERED.26ChanRoblesVirtualawlibrary
The CA found that existing regulations issued by the DA and the Department of Science and
Technology (DOST) are insufficient to guarantee the safety of the environment and health of
the people. Concurring with Dr. Malayang's view that the government must exercise
precaution "under the realm of public policy" and beyond scientific debate, the appellate court
noted the possible irreversible effects of the field trials and the introduction of Bt talong to the
market.
After scrutinizing the parties' arguments and evidence, the CA concluded that the
precautionary principle set forth in Section 1, Rule 20 of the Rules of Procedure for
Environmental Cases27 finds relevance in the present controversy. Stressing the fact that the
"over-all safety guarantee of the bt talong" remains unknown, the appellate court cited the
testimony of Dr. Cario who admitted that the product is not yet safe for consumption
because a safety assessment is still to be done. Again, the Decision quoted from Dr. Malayang
who testified that the question of Bt talong's safety demands maximum precaution and
utmost prudence, bearing in mind the country's rich biodiversity. Amid the uncertainties
surrounding the Bt talong, the CA thus upheld the primacy of the people's constitutional right
to health and a balanced ecology.
Denying the motions for reconsideration filed by ISAAA, EMB/BPI/FPA, UPLB and UPLBFI, the
CA in its Resolution dated September 20, 2013 rejected the argument of UPLB that the
appellate court's ruling violated UPLB's constitutional right to academic freedom. The
appellate court pointed out that the writ ofkalikasan originally issued by this Court did not
stop research on Bt talong but only the particular procedure adopted in doing field trials and
only at this time when there is yet no law in the form of a congressional enactment for
ensuring its safety and levels of acceptable risks when introduced into the open environment.
Since the writ stops the field trials of Bt talong as a procedure but does not stop Bt
talong research, there is no assault on academic freedom.
The CA then justified its ruling by expounding on the theory that introducing a genetically
modified plant into our ecosystem is an "ecologically imbalancing act." Thus:

We suppose that it is of universal and general knowledge that an ecosystem is a universe of

biotic (living) and non-biotic things interacting as a living community in a particular space and
time. In the ecosystem are found specific and particular biotic and non-biotic entities which
depend on each other for the biotic entities to survive and maintain life. A critical element for
biotic entities to maintain life would be that their populations are in a proper and natural
proportion to others so that, in the given limits of available non-biotic entities in the
ecosystem, no one population overwhelms another. In the case of the Philippines, it is
considered as one of the richest countries in terms of biodiversity. It has so many plants and
animals. It also has many kinds of other living things than many countries in the world. We do
not fully know how all these living things or creatures interact among themselves. But, for
sure, there is a perfect and sound balance of our biodiversity as created or brought about by
God out of His infinite and absolute wisdom. In other words, every living creature has been in
existence or has come into being for a purpose. So, we humans are not supposed to tamper
with any one element in this swirl of interrelationships among living things in our ecosystem.
Now, introducing a genetically modified plant in our intricate world of plants by humans
certainly appears to be an ecologically imbalancing act. The damage that it will cause may be
irreparable and irreversible.

ostensibly identifiable perms, on the other hand, there is correspondingly no factual evidence
either of it not causing harm to anyone. However, in a study published on September 20, 2012
in "Food and Chemical Toxicology", a team of scientists led by Professor Gilles-Eric Seralini
from the University of Caen and backed by the France-based Committee of Independent
Research and Information on Genetic Engineering came up with a finding that rats fed with
Roundup-tolerant genetically modified corn for two years developed cancers, tumors and
multiple organ damage. The seven expert witnesses who testified in this Court in the hearing
conducted on November 20, 2012 were duly confronted with this finding and they were not
able to convincingly rebut it. That is why we, i n deciding this case, applied the precautionary
principle in granting the petition filed in the case at bench.

At this point, it is significant to note that during the hearing conducted by this Court on
November 20, 2012 wherein the testimonies of seven experts were given, Dr. Peter J. Davies
(Ph.D in Plant [Physiology]), Dr. Tuskar Chakraborty (Ph.D in Biochemistry and Molecular
Biology), Dr. Charito Medina (Ph.D in Environmental Biology), Dr. Reginaldo Ebora (Ph.D in
Entomology), Dr. Flerida Cario (Ph.D in Insecticide Toxicology), Dr. Ben Malayang (Ph.D in
Wildland Resource Science) and Dr. Saturnina Halos (Ph.D in Genetics) were in unison in
admitting that bt talong is an altered plant. x x x

G.R. No. 209271

xx xx

II
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME RAISES
POLITICAL QUESTIONS.

Thus, it is evident and clear that bt talong is a technology involving the deliberate alteration of
an otherwise natural state of affairs. It is designed and intended to alter natural feed-feeder
relationships of the eggplant. It is a deliberate genetic reconstruction of the eggplant to alter
its natural order which is meant to eliminate one feeder (the borer) in order to give undue
advantage to another feeder (the humans). The genetic transformation is one designed to
make bt talong toxic to its pests (the targeted organisms). In effect, bt talong kills its targeted
organisms. Consequently, the testing or introduction of bt talong into the Philippines, by its
nature and intent, is a grave and present danger to (and an assault on) the Filipinos'
constitutional right to a balanced ecology because, in any book and by any yardstick, it is an
ecologically imbalancing event or phenomenon. It is a willful and deliberate tampering of a
naturally ordained feed-feeder relationship in our environment. It destroys the balance of our
biodiversity. Because it violates the conjunct right of our people to a balanced ecology, the
whole constitutional right of our people (as legally and logically construed) is violated.
Of course, the bt talong's threat to the human health of the Filipinos as of now remains
uncertain. This is because while, on one hand, no Filipinos has ever eaten it yet, and so, there
is no factual evidence of it actually causing acute or chronic harm to any or a number of

Prescinding from the foregoing premises, therefore, because one conjunct right in the whole
Constitutional guarantee is factually and is undoubtedly at risk, and the other still factually
uncertain, the entire constitutional right of the Filipino people to a balanced and healthful
ecology is at risk. Hence, the issuance of the writ of kalikasan and the continuing writ of
mandamus is justified and warranted.28 (AdditionalEmphasis supplied.)
Petitioners' Arguments

ISAAA advances the following arguments in support of its petition:

I
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME IS
ALREADY MOOT AND ACADEMIC.

A.

IN SEEKING TO COMPEL THE REGULATORY AGENCIES "TO SUBMIT AN ACCEPTABLE

DRAFT OF THE AMENDMENT OF THE NATIONAL BIO-SAFETY FRAMEWORK OF THE
PHILIPPINES, AND DA ADMINISTRATIVE ORDER NO. 08," AND IN PRAYING THAT THE
COURT OF APPEALS "RECOMMEND TO CONGRESS CURATIVE LEGISLATIONS,"
RESPONDENTS SEEK TO REVIEW THE WISDOM OF THE PHILIPPINE REGULATORY
SYSTEM FOR GMOS, WHICH THE COURT OF APPEALS IS WITHOUT JURISDICTION TO
DO SO.

B.

WORSE, THE COURT OF APPEALS EVEN HELD THAT THERE ARE NO LAWS GOVERNING
THE STUDY, INTRODUCTION AND USE OF GMOS IN THE PHILIPPINES AND
COMPLETELY DISREGARDED E.O. NO. 514 AND DA- AO 08-2002.
III

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT RESPONDENTS
FAILED TO EXHAUST ADMINISTRATIVE REMEDIES.
IV
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT PRIMARY
JURISDICTION OVER THE SAME LIES WITH THE REGULATORY AGENCIES.
V
THE COURT OF APPEALS EXHIBITED BIAS AND PARTIALITY AND PREJUDGED THE INSTANT CASE
WHEN IT RENDERED THE ASSAILEDDECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20
SEPTEMBER 2013.
VI
THE COURT OF APPEALS GRAVELY ERRED IN GRANTING THE WRIT OF KALIKASAN IN FAVOR OF
RESPONDENTS.
A.

THE EVIDENCE ON RECORD SHOWS THAT THE PROJECT PROPONENTS OF THE BT

TALONG FIELD TRIALS COMPLIED WITH ALL ENVIRONMENTAL LAWS, RULES AND
REGULATIONS IN ORDER TO ENSURE THAT THE PEOPLE'S RIGHT TO A BALANCED AND
HEALTHFUL ECOLOGY ARE PROTECTED AND RESPECTED.

B.

THE EVIDENCE ON RECORD SHOWS THAT THE BT TALONG FIELD TRIALS DO NOT
CAUSE ENVIRONMENTAL DAMAGE AND DO NOT PREJUDICE THE LIFE, HEALTH AND
PROPERTY OF INHABITANTS OF TWO OR MORE PROVINCES OR CITIES.

C.

THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE PRECAUTIONARY

PRINCIPLE IN THIS CASE DESPITE THE FACT THAT RESPONDENTS FAILED TO PRESENT
AN IOTA OF EVIDENCE TO PROVE THEIR CLAIM.

VII
THE COURT OF APPEALS GRAVELY ERRED IN GRANTING A WRIT OF CONTINUING MANDAMUS
AGAINST PETITIONER ISAAA.
VIII
THE COURT OF APPEALS' DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20
SEPTEMBER 2013 IS AN AFFRONT TO ACADEMIC FREEDOM AND SCIENTIFIC
PROGRESS.29ChanRoblesVirtualawlibrary
G.R. No. 209276
Petitioners EMB, BPI and FPA, represented by the Office of the Solicitor General (OSG) assails
the CA Decision granting the petition for writ of kalikasanand writ of continuing mandamus
despite the failure of Greenpeace, et al. (respondents) to prove the requisites for their

issuance.
Petitioners contend that while respondents presented purported studies that supposedly
show signs of toxicity in genetically engineered eggplant and other crops, these studies are
insubstantial as they were not published in peer-reviewed scientific journals. Respondents
thus failed to present evidence to prove their claim that the Bt talong field trials violated
environmental laws and rules.
As to the application of the precautionary principle, petitioners asserted that its application in
this case is misplaced. The paper by Prof. Seralini which was relied upon by the CA, was not
formally offered in evidence. In volunteering the said article to the parties, petitioners lament
that the CA manifested its bias towards respondents' position and did not even consider the
testimony of Dr. Davies who stated that "Seralini's work has been refuted by International
committees of scientists"30 as shown by published articles critical of Seralini's work.
Petitioners aver that there was no damage to human health since no Bt talong will be ingested
by any human being during the field trial stage. Besides, if the results of said testing are
adverse, petitioners will not allow the release of Bt talong to the environment, in line with the
guidelines set by EO 514. The CA thus misappreciated the regulatory process as approval for
field testing does not automatically mean approval for propagation of the same product. And
even assuming that the field trials may indeed cause adverse environmental or health effects,
the requirement of unlawful act or omission on the part of petitioners or any of the
proponents, was still absent. Respondents clearly failed to prove there was any unlawful
deviation from the provisions of DAO 08-2002. The BPI's factual finding on the basis of risk
assessment on the Bt talong project should thus be accorded respect, if not finality by the
courts.
Petitioners likewise fault the CA in giving such ambiguous and general directive for them to
protect, preserve, rehabilitate and restore the environment, lacking in specifics which only
indicates that there was really nothing to preserve, rehabilitate or restore as there was
nothing damaged or adversely affected in the first place. As to the supposed inadequacy and
ineffectiveness of existing regulations, these are all political questions and policy issues best
left to the discretion of the policy-makers, the Legislative and Executive branches of
government. Petitioners add that the CA treads on judicial legislation when it recommended
the re-examination of country's existing laws and regulations governing studies and research
on GMOs.
GR. No. 209301
Petitioner UPLBFI argues that respondents failed to adduce the quantum of evidence
necessary to prove actual or imminent injury to them or the environment as to render the
controversy ripe for judicial determination. It points out that nowhere in the testimonies
during the "hot-tub" presentation of expert witnesses did the witnesses for respondents claim
actual or imminent injury to them or to the environment as a result of the Bt talong field tests,
as they spoke only of injury in the speculative, imagined kind without any factual basis.

Further, the petition for writ of kalikasan has been mooted by the termination of the field
trials as of August 10, 2012.
Finding the CA decision as a judgment not based on fact, UPLBFI maintains that by reason of
the nature, character, scale, duration, design, processes undertaken, risk assessments and
strategies employed, results heretofore recorded, scientific literature, the safeguards and
other precautionary measures undertaken and applied, the Bt talong field tests did not or
could not have violated the right of respondents to a balanced and healthful ecology. The
appellate court apparently misapprehended the nature, character, design of the fiel d trials as
one for "consumption" rather than for "field testing" as defined in DAO 08-2002, the sole
purpose of which is for the "efficacy" of the eggplant variety's resistance to the FSB.
Against the respondents' bare allegations, UPLBFI submits the fol lowing "specific facts borne
by competent evidence on record" (admitted exhibits) 31:
118.

119.

Since the technology's inception 50 years ago, studies have shown that genetically
modified crops, including Bt talong, significantly reduce the use of pesticides by
farmers in growing eggplants, lessening pesticide poisoning to humans.

Pesticide use globally has decreased in the last [14-15] years owing to the use of insectresistant genetically modified crops. Moreover, that insect-resistant genetically
modified crops significantly reduce the use of pesticides in growing plants thus
lessening pesticide poisoning in humans, reducing pesticide load in the environment
and encouraging more biodiversity in farms.

120.

Global warming is likewise reduced as more crops can be grown.

121.

Transgenic Bacillus thuringensis (Bt) cotton has had a major impact on the Australian
cotton industry by largely controlling Lepidopteran pests. To date, it had no significant
impact on the invertebrate community studied.

122.

Feeding on CrylAcc contaminated non-target herbivores does not harm predatory

heteropterans and, therefore, cultivation of Btcotton may provide an opportunity for
conservation of these predators in cotton ecosystems by reducing insecticide use.

123.

The Bt protein in Bt corn only affects target insects and that Bt corn pollens do not
negatively affect monarch butterflies.

124.

The field trials will not cause "contamination" as feared by the petitioners because
flight distance of the pollinators is a deterrent to cross pollination. Studies reveal that
there can be no cross pollination more than a fifty (50) meter distance.

xxx
x

135.

There is a 50 year history of safe use and consumption of agricultural products sprayed
with commercial Bt microbial pesticides and a 14 year history of safe consumption of
food and feed derived from Bt crops.

xxx
x

140.

In separate reviews by the European Food Safety Agency (EFSA) and the Food
Standards Australia and New Zealand (FSANZ), the "work" of one Prof. Seralini relied
upon by [respondents] was dismissed as "scientifically flawed", thus providing no
plausible basis to the proposition that Bt talong is dangerous to public health.

141.

In a learned treatise by James Clive entitled "Global Status of Commercialized

Biotech/GM Crops: 2011," the Philippines was cited to be the first country in the ASEAN
region to implement a regulatory system for transgenic crops (which includes DAO 08[2]002). Accordingly, the said regulatory system has also served as a model for other
countries in the region and other developing countries outside of Asia.

On the precautionary principle, UPLBFI contends that the CA misapplied it in this case. The
testimonial and documentary evidence of respondents, taken together, do not amount to
"scientifically plausible" evidence of threats of serious and irreversible damage to the
environment. In fact, since BPI started regulating GM crops in 2002, they have monitored 171
field trials all over the Philippines and said agency has not observed any adverse

environmental effect caused by said field trials. Plainly, respondents failed to show proof of
"specific facts" of environmental damage of the magnitude contemplated under the Rules of
Procedure for Environmental Cases as to warrant sanctions over the Bt talong field trials.
Lastly, UPLBFI avers that the Bt talong field trial was an exercise of the constitutional liberty of
scientists and other academicians of UP, of which they have been deprived without due
process of law. Stressing that a possibility is not a fact, UPLBFI deplores the CA decision's
pronouncement of their guilt despite the preponderance of evidence on the environmental
safety of the field trials, as evident from its declaration that "the over-all safety guarantee of Bt
talong remains to be still unknown." It thus asks if in the meantime, petitioners must bear the
judicial stigma of being cast as violators of the right of the people to a balanced and healthful
ecology for an injury or damage unsubstantiated by evidence of scientific plausibility.
G.R. No. 209430
Petitioner UP reiterates UPLBFI's argument that the Bt talong field testing was conducted in
the exercise of UPLB's academic freedom, which is aconstitutional right. In this case, there is
nothing based on evidence on record or overwhelming public welfare concern, such as the
right of the people to a balanced and healthful ecology, which would warrant restraint on
UPLB's exercise of academic freedom. Considering that UPLB complied with all laws, rules and
regulations regarding the application and conduct of field testing of GM eggplant, and was
performing such field tests within the prescribed limits of DAO 08-2002, and there being no
harm to the environment or prejudice that will be caused to the life, health or property of
inhabitants in two or more cities or provinces, to restrain it from performing the said field
testing is unjustified.
Petitioner likewise objects to the CA's application of the precautionary principle in this case, in
violation of the standards set by the Rules of Procedure for Environmental Cases. It points out
that the Bt eggplants are not yet intended to be introduced into the Philippine ecosystem nor
to the local market for human consumption.
Cited were the testimonies of two expert witnesses presented before the CA: Dr. Navasero
who is an entomologist and expert in integrated pest management and insect taxonomy, and
Dr. Davies, a member of the faculty of the Department of Plant Biology and Horticulture at
Cornell University for 43 years and served as a senior science advisor in agricultural technology
to the United States Department of State. Both had testified that based on generally accepted
and scientific methodology, the field trial of Bt crops do not cause damage to the environment
or human health.
Petitioner assails the CA in relying instead on the conjectural statements of Dr. Malayang. It
asserts that the CA could not support its Decision and Resolution on the pure conjectures and
imagination of one witness. Basic is the rule that a decision must be supported by evidence on
record.
Respondents' Consolidated Comment

Respondents aver that Bt talong became the subject of public protest in our country precisely
because of the serious safety concerns on the impact of Bt talong toxin on human and animal
health and the environment through field trial contamination. They point out that the inherent
and potential risks and adverse effects of GM crops are recognized in the Cartagena Protocol
and our biosafety regulations (EO 514 and DAO 08-2002). Contamination may occur through
pollination, ingestion by insects and other animals, water and soil run off, human error,
mechanical accident and even by stealing was inevitable in growing Bt talong in an open
environment for field trial. Such contamination may manifest even after many years and in
places very far away from the trial sites.
Contrary to petitioners' claim that they did not violate any law or regulation, or unlawful
omission, respondents assert that, in the face of scientific uncertainties on the safety and
effects of Bt talong, petitioners omitted their crucial duties to conduct environmental impact
assessment (EIA); evaluate health impacts; get the free, prior and informed consent of the
people in the host communities; and provide remedial and liability processes in the approval of
the biosafety permit and conduct of the field trials in its five sites located in five provinces.
These omissions have put the people and the environment at serious and irreversible risks.
Respondents cite the numerous studies contained in "Adverse Impacts of Transgenic
Crops/Foods: A Compilation of Scientific References with Abstracts" printed by Coalition for a
GMO-Free India; a study on Bt corn in the Philippines, "Socio-economic Impacts of Genetically
Modified Corn in the Philippines" published by MASIPAG in 2013; and the published report of
the investigation conducted by Greenpeace, "White Corn in the Philippines: Contaminated with
Genetically Modified Corn Varieties" which revealed positive results for samples purchased
from different stores in Sultan Kudarat, Mindanao, indicating that they were contaminated
with GM corn varieties, specifically the herbicide tolerant and Bt insect resistant genes from
Monsanto, the world's largest biotech company based in the US.
To demonstrate the health hazards posed by Bt crops, respondents cite the foll owing sources:
the studies of Drs. L. Moreno-Fierros, N. Garcia, R. Gutierrez, R. Lopez-Revilla, and RI VazquezPadron, all from the Universidad Nacional Autonoma de Mexico; the conclusion made by Prof.
Eric-Gilles Seralini of the University of Caen, France, who is also the president of the Scientific
Council of the Committee for Independent Research and Information on Genetic Engineering
(CRIIGEN), in his review, commissioned by Greenpeace, of Mahyco's data submitted in support
of the application to grow and market Bt eggplant in India; and the medical interpretations of
Prof. Seralini's findings by Filipino doctors Dr. Romeo Quijano of the University of the
Philippines-Philippine General Hospital and Dr. Wency Kiat, Jr. of St. Luke's Medical Center
(Joint Affidavit).
According to respondents, the above findings and interpretations on serious health risks are
strengthened by the findings of a review of the safety claims in the MAHYCO Dossier authored
by Prof. David A. Andow of the University of Minnesota, a n expert in environmental
assessment in crop science. The review was made upon the request in 2010 of His Honorable
Shri Jairam Ramesh of the Ministry of Environment and Forests of India, where MAHYCO is

based. MAHYCO is the corporate creator and patent owner of the Bt gene inserted in Bt
talong.
The conclusions of health hazards from the above studies were summarized 32 by respondents,
as follows:
Studies/interpretation by

Conclusion/interpretation

Drs. L. Moreno-Fierros, N. Garcia, R.

Gutierrez, R.

For Bt modified crops (like Bt talong), there is concern

over its potential

Lopez-Revilla, and RI VazquezPadron

allergenicity. CrylAcc (the gene inserted in Bt talong)

protoxin is a potent immunogen (triggers immune
response); the protoxin is immunogenic by both the
intraperitoneal (injected) and intragastric (ingested)
route; the immune response to the protoxin is both
systemic and mucosal; and CrylAcc protoxin binds to
surface proteins in the mouse small intestine. These
suggest thatextreme caution is required in the use
of CrylAcc in food crops.

Prof. Eric-Gilles Seralini

His key findings showed statistical significant

differences between group of animals fed GM and nonGM eggplant that raise food safety concerns and
warrant further investigation.

Dr. Romeo Quijano & Dr. Wency

Kiat, Jr.

Interpreting Prof. Seralini's findings, the altered

condition of ratssymptomatically indicate hazards for
human health.

Prof. David A. Andow

The MAHYCO dossier is inadequate to support the

needed environmental risk assessment; MAHYCO's
food safety assessment does not comply with
international standards; and that MAHYCO relied on
dubious scientific assumptions and disregarded real
environmental threats.

As to environmental effects, respondents said these include the potenti al for living modified
organisms, such as Bt talong tested in the field or released into the environment, to
contaminate non-GM traditional varieties and other wild eggplant relatives and turn them into
novel pests, outcompete and replace their wild relatives, increase dependence on pesticides,
or spread their introduced genes to weedy relatives, potentially creating superweeds, and kill
beneficial insects.
Respondents then gave the following tabulated summary 33 of field trial contamination
cases drawn from various news reports and some scientific literature submitted to the court:

What happened

Impact

How did it occur

During 2006 and 2007, traces

of three varieties of
unapproved genetically
modified rice owned by Bayer
Crop Science were found in US
rice exports in over 30
countries worldwide.

In July 2011, Bayer eventually

agreed to a $750m US dollar
settlement resolving claims with
about 11,000 US farmers for
market losses and clean-up costs.

Field trials were

conducted between
the mid-1990s and
early 2000s. The US
Department of
Agriculture (USDA)
reported these field
trials were the likely
sources of the
contamination
between the modified
rice and conventional
varieties. However, it
was unable to conclude
[if it] was caused by
gene flow (cross
pollination) or
mechanical mixing.

In 2009, unauthorised
GElinseed (also known as 'flax')
produced by a public research
institution was discovered in
food in several EU countries,
having been imported from
Canada.

Canada lost exports to its main

European market worth hundreds
of millions of dollars and nonGElinseed farmers have faced
huge costs and market losses.

In the late 1980s a

public research
institution, the Crop
Development Centre in
Saskatoon, Saskatchewan, developed a
GElinseed variety
FP96believed to be
the origin of the
contamination.

During 2004, the Thai

government found that papaya
samples from 85 farms were
genetically modified. The
contamination continued into
2006 and it is likely that the GE
contamination reached the
food chain.

Exports of papaya to Europe have

been hit because of fears that
contamination could have spread.
The Thai government said it was
taking action to destroy the
contaminated trees.

GEpapaya is not grown

commercially in
Thailand, so it was
clear that the
contamination
originated from the
government station
experimentally
breeding GE papaya
trees. Tests that
showed that one third
of papaya orchards

The total costs to the rice industry

are likely to have been over $1bn
worldwide.

tested in the eastern

province of Rayong and
the north-eastern
provinces of
Mahasarakham,
Chaiyaphum and
Kalasinhad GEcontaminated papaya
seeds in July 2005. The
owners said that a
research station gave
them the seeds.
In the US in 2002, seeds from a
GEmaize pharma-crop
containing a pig vaccine grew
independently among normal
soybean crops.

In 2005, Greenpeace
discovered that GE rice seeds
had been illegally sold in
Hubei, China. Then, in 2006,
GE rice event Bt63 was found
in baby food sold in Beijing,
Guangzhou and Hong Kong. In
late 2006, GE rice Bt63 was
found to be contaminating
exports in Austria, France, the
UK and Germany. In 2007 it
was again found in EU imports
to Cyprus, Germany, Greece,
Italy and Sweden.

Prodigene, the company

responsible, was fined $3m for
tainting half a million bushels of
soya bean with a trial vaccine
used to prevent stomach upsets
in piglets. Prodigene agreed to
pay a fine of $250,000 and to
repay the government for the
cost of incinerating the soya bean
that had been contaminated with
genetically altered corn.

Seeds from the

GEmaize crop sprouted
voluntarily in the
following season.

The European Commission

adopted emergency measures (on
15 August 2008) to require
compulsory certification for the
imports of Chinese rice products
that could contain the
unauthorised GE rice Bt63.

The source of the

contamination appears
to have been the result
of illegal planting of
GEseeds. Seed
companies in China
found to have sold
GErice hybrid seed to
farmers operated
directly under the
university developing
GM rice. It has been
reported that the key
scientist sat on the
board of one GEseed
company.

The Chinese government took

several measures to try to stop
the contamination, which
included punishing seed
companies, confiscating GEseed,
destroying GErice grown in the
field and tightening control over
the food chain.

In 2005, the European

Commission announced that
illegal Bt10 GEmaize produced
by GEseed company Syngenta
had entered the European
food chain. The GEmaize Bt10
contains a marker gene that
codes for the widely-used
antibiotic ampicillin, while the
Bt11 does not. According to
the international Codex
Alimentarius Guideline for
Conduct of Food Safety
Assessment of Foods Derived
from RecombinantDNA:Plants: 'Antibiotic
resistance genes used in food
production that encode
resistance to clinically used
antibiotics should not be
present in foods' because it
increases the risk of antibiotic
resistance in the population.

The European Commission

blocked US grain import unless
they could be guaranteed free of
Bt10. The USDA fined Syngenta
$375,000. There are no figures for
the wider costs.

The contamination
arose because
Syngenta's quality
control procedures did
not differentiate
between Bt10 and its
sister commercial line,
Bt11. As a result, the
experimental and
substantially different
Bt10 line was
mistakenly used in
breeding. The error
was detected four
years later when one of
the seed companies
developing Bt11
varieties adopted more
sophisticated analytical
techniques.

Refuting the claim of petitioners that contamination is nil or minimal because the scale of Bt
talong field trial is isolated, restricted and that "each experiment per site per season consists
of a maximum net area planted to Bt eggplant of between 480 sq. meters to 1,080 sq.
meters,"34 respondents emphasize that as shown by the above, contamination knows no size
and boundaries in an open environment.
With regard to the required geographical coverage of environmental damage for the issuance
of writ of kalikasan, respondents assert that while the Bt talong field trials were conducted in
only five provinces, the environmental damage prejudicial to health extends beyond the health
of the present generation of inhabitants in those provinces.
On petitioners' insistence in demanding that those who allege injury must prove injury,
respondents said that biosafety evidence could not be readily contained in a corpus delicti to
be presented in court. Indeed, the inherent and potential risks and adverse effects brought by
GMOs are not like dead bodies or wounds that are immediately and physically identifiable to
an eyewitness and which are resulting from a common crime. Precisely, this is why the
Cartagena Protocol's foundation is on the precautionary principle and development of sound
science and its links, to social and human rights law through its elements of public awareness,
public participation and public right to know. This is also why the case was brought under
the Rules of Procedure for Environmental Cases and not under ordinary or other rules, on the
grounds of violation of the rights of the Filipino people to health, to a balanced and healthful

ecology, to information on matters of national concern, and to participation. The

said Rules specifically provides that the appreciation of evidence in a case like this must be
guided by the precautionary principle.

permit. Respondents' failure to resort to the internal mechanisms provided in DAO 08-2002
violates the rule on exhaustion of administrative remedies, which warrants the dismissal of
respondents' petition.

As to the non-exhaustion of administrative remedies being raised by petitioners as ground to

dismiss the present petition, respondents said that nowhere in the 22 sections of DAO 08-2002
that one can find a remedy to appeal the decision of the DA issuing the field testing permit.
What is only provided for is a mechanism for applicants of a permit, not stakeholders like
farmers, traders and consumers to appeal a decision by the BPI -DA in case of denial of their
application for field testing. Moreover, DAO 08-2002 is silent on appeal after the issuance of
the biosafety permit.

ISAAA points out that under Section 7 of DAO 08-2002, the BPI is the approving authority for
field testing permits, while under Title IV, Chapter 4, Section 19 of the Administrative Code of
1987, the DA through the BPI, is responsible for the production of improved planting materials
and protection of agricultural crops from pests and diseases. In bypassing the administrative
remedies available, respondents not only failed to exhaust a less costly and speedier remedy,
it also deprived the parties of an opportunity to be heard by the BPI which has primary
jurisdiction and knowledgeable on the issues they sought to raise.

Finally, on the propriety of the writ of continuing mandamus, respondents argue that EO 514
explicitly states that the application of biosafety regulations shall be made in accordance
with existing laws and the guidelines therein provided. Hence, aside from risk assessment
requirement of the biosafety regulations, pursuant to the PEISS law and Sections 12 and 13 of
the Philippine Fisheries Code of 1998, an environmental impact statement (EIS) is required and
an environmental compliance certificate (ECC) is necessary before such Bt crop field trials can
be conducted.

Rejecting the scientific data presented by the respondents, petitioners found Annex "A" of the
Consolidated Comment as irrelevant because it was not formally offered in evidence and are
hearsay. Majority of those records contain incomplete information and none of them pertain
to the Bt talong. Respondents likewise presented two misleading scientific studies which have
already been discredited: the 2013 study by B.P. Mezzomo, et al. and the study by Prof.
Seralini in 2012. Petitioner notes that both articles have been withdrawn from publication.

Petitioners' Replies
G.R. No. 209271
ISAAA contends that the Precautionary Principle and the Rules of Procedure for Environmental
Cases do not empower courts to adjudicate a controversy that is moot and academic. It points
out that respondents failed to satisfy all the requirements of the exception to the rule on
actual controversies. The Biosafety Permit is valid for only two years, while the purported
stages in the commercialization, propagation and registration of Bt talong still cannot confer
jurisdiction on the CA to decide a moot and academic case.
As to the propriety of the writ of continuing mandamus, ISAAA maintains that public
petitioners do not have "mandatory" and "ministerial" duty to re-examine and reform the
biosafety regulatory system, and to propose curative legislation. The law (EO 514) cited by
respondents does not impose such duty on public petitioners. As for the Cartagena Protocol, it
laid down a procedure for the evaluation of the Protocol itself, not of the Philippine biosafety
regulatory system. ISAAA stresses that the CA is without jurisdiction to review the soundness
and wisdom of existing laws, policy and regulations. Indeed, the questions posed by the
respondents are political questions, which must be resolved by the executive and legislative
departments in deference to separation of powers.
On the availability of administrative remedies, ISAAA asserts that respondents are mistaken in
saying that these are limited to appeals. The concerned public may invoke Section 8 (G) of DAO
08-2002 which grants them the right to submit their written comments on the BPI regarding
the field testing permits, or Section 8 (P) for the revocation and cancellation of a field testing

ISAAA further describes Annex "A" as a mere compilation of records of flawed studies with
only 126 usable records out of the 338 records. In contrast, petitioner cites the work of Nicolia,
A., A. Manzo, F. Veronesi, and D. Rosellini, entitled "An overview of the last 10 years of
genetically engineered crop safety research." The authors evaluated 1,783 scientific records of
GE crop safety research papers, reviews, relevant opinions and scientific reports from 20022012. Their findings concluded that "the scientific research conducted so far has not detected
any significant hazards directly connected with the use of GE crops." In the article "Impacts of
GM crops on biodiversity," in which scientific findings concluded that "[o]verall, x x x currently
commercialized GM crops have reduced the impacts of agriculture on biodiversity, through
enhanced adoption of conservation tillage practices, reduction of insecticide use and use of
more environmentally benign herbicides and increasing yields to alleviate pressure to convert
additional land into agricultural use."
Debunking the supposed inherent risks and potential dangers of GMOs, petitioner cites EUR
24473-A decade of EU-funded GMO research (2001-2010), concluded from more than 130
research projects, covering a period of 25 years of research, and involving more than 500
independent research groups, that "biotechnology, and in particular GMOs, are not per se
more risky than e.g. conventional plant breeding technologies." Another article cited is
"Assessment of the health impact of GM plant diets in long-term and multigenerational animal
feeding trials: A literature review" which states that scientific findings show that GM crops do
not suggest any health hazard, and are nutritionally equivalent to their non-GM counterparts
and can be safely used in food and feed.
Addressing the studies relied upon by respondents on the alleged adverse environmental
effects of GM crops, petitioner cites the article "Ecological Impacts of Genetically Modified
Crops: Ten Years of Field Research and Commercial Cultivation" which concluded that "[T]he

data available so far provide no scientific evidence that the cultivation of the presently
commercialized GM crops has caused environmental harm." A related article, "A MetaAnalysis of Effects of Bt Cotton and Maize on Non-target Invertebrates" states that scientific
findings show that non-target insects are more abundant in GM crop fields like Bt cotton
and Bt maize fields than in non-GM crops that are sprayed with insecticides.
The two tables/summaries of studies submitted by respondents are likewise rejected by
ISAAA, which presented the following comments and criticisms on each of the paper/article
cited, thus:
With respect to the study made by L. Moreno-Fierros, et al., the same should be rejected
considering that this was not formally offered as evidence by respondents. Hence, the same
may not be considered by the Honorable Court. (Section 34, Rule 132 of the Rules of
Court;Heirs of Pedro Pasag v. Spouses Parocha, supra)
Further, the study is irrelevant and immaterial. The CrylAcc protein used in the study was from
engineered E. coli and may have been contaminated by endotoxin. The CrylAcc used in the
study was not from Bt talong. Hence, respondents' attempt to extrapolate the interpretation
and conclusion of this study to Bt talong is grossly erroneous and calculated to mislead and
deceive the Honorable Court.
Moreover, in a review by Bruce D. Hammond and Michael S. Koch of the said study by L.
Moreno-Fierros, et al., which was published in an article entitled A Review of the Food Safety
of Bt Crops, the authors reported that Adel -Patient, et al. tried and failed to reproduce the
results obtained by the study made by L. Moreno-Fierros, et al. The reason is because of
endotoxin contamination in the preparation of theCrylAc protein. Further, when purified Cry
protein was injected to mice through intra-gastric administration, there was no impact on the
immune response of the mice.
In addition, the biological relevance of the study made by L. Moreno-Fierros, et al. to assessing
potential health risks from human consumption of foods derived from Bt crops can be
questioned because the doses tested in mice is irrelevant to human dietary exposure,i.e., the
doses given were "far in excess of potential human intakes".
With respect to the interpretation made by Prof. Eric-Gilles Seralini, the same is not entitled to
any weight and consideration because his sworn statement was not admitted in evidence by
the Court of Appeals.
Further, Seralini's findings are seriously flawed. Food safety experts explained the differences
observed by Seralini's statistical analysis as examples of random biological variation that
occurs when many measurements are made on test animals, and which have no biological
significance. Hence, there are no food safety concerns. Further, petitioner ISAAA presented in
evidence the findings of regulatory bodies, particularly the EFSA and the FSANZ, to controvert
Seralini's findings. The EFSA and the FSANZ rejected Seralini's findings because the sa me were
based on questionable statistical procedure employed in maize in 2007.

In addition, it must be pointed out that the Indian regulatory authority, GEAC, has not revised
its earlier decision approving the safety of Bteggplant notwithstanding the findings of Seralini's
assessment. In effect, Seralini's findings and interpretation were rejected by the Indian
regulatory agency.
With respect to the interpretation made by Drs. Romeo Quijano and Wency Kiat, the same is
not entitled to any weight and consideration because the Court of Appeals did not admit their
sworn statement. Further, Drs. Romeo Quijano and Wency Kiat sought to interpret a seriously
flawed study, making their sworn statements equally flawed.
In an attempt to mislead the Honorable Court, respondents tried to pass off the review of Prof.
David A. Andow as the work of the National Academy of Sciences of the USA. Such claim is
grossly misleading. In truth, as Prof. David A. Andow indicated in the preface, the report was
produced upon the request of Aruna Rodriguez, a known anti-GM campaigner.
Further, Prof. David A. Andow's review did not point to any negative impact to the
environment of Mahyco's Bt brinjal (Indian name for Bt talong) during the entire period of
conduct of field trials all over the country. He concluded, however, that the dossier is
inadequate for ERA. This is perplexing considering this is the same gene that has been used
in Bt cotton since 1996. Scores of environmental and food safety risk assessment studies have
been conducted and there is wealth of information and experience on its safety. Various metaanalyses indicate that delaying the use of this already effective Bt brinjal for managing this
devastating pest only ensures the continued use of frequent insecticide sprays with proven
harm to human and animal health and the environment and loss of potential income of
resource-poor small farmers.
Notwithstanding the conclusions of Prof. David A. Andow, to date, it is worth repeating that
the Indian regulatory body, GEAC, has not revised its earlier decision approving the safety
of Bt eggplant based on the recommendation of two expert committees which found the
Mahyco regulatory dossier compliant to the ERA stipulated by the Indian regulatory body. In
effect, like Seralini, Andow's findings and interpretation were also rejected by the Indian
regulatory agency.35ChanRoblesVirtualawlibrary
Petitioner reiterates that the PEIS law does not apply to field testing of Bt talong and the rigid
requirements under Section 8 of DAO 08-2002 already takes into consideration any and all
significant risks not only to the environment but also to human health. The requirements
under Sections 26 and 27 of theLocal Government Code are also inapplicable because the field
testing is not among the six environmentally sensitive activities mentioned therein; the public
consultations and prior local government unit (LGU) approval, were nevertheless complied
with. Moreover, the field testing is an exercise of academic freedom protected by the
Constitution, the possibility of Bt talong's commercialization in the future is but incidental to,
and fruit of the experiment.
As to the "commissioned studies" on Bt corn in the Philippines, petitioner asserts that these
are inadmissible, hearsay and unreliable. These were not formally offered in evidence; selfserving as it was conducted by respondents Greenpeace and MASIPAG themselves; the

persons who prepared the same were not presented in court to identify and testify on its
findings; and the methods used i n the investigation and research were not scientific. Said
studies failed to establish any correlation between Bt corn and the purported environmental
and health problems.
G.R. No. 209276
EMB, BPI and FPA joined in objecting to Annex "A" of respondents' consolidated comment, for
the same reasons given by ISAAA. They noted that the affidavit of Prof. Seralini, and the joint
affidavit of Dr. Kiat and Dr. Quijano were denied admission by the CA. Given the failure of the
respondents to present scientific evidence to prove the claim of environmental and health
damages, respondents are not entitled to the writ of kalikasan.
Public petitioners reiterate that in issuing the Biosafety Permits to UPLB, they made sure that
the latter complied with all the requirements under DAO 08-2002, including the conduct of risk
assessment. The applications for field testing of Bt talong thus underwent the following
procedures:
Having completed the contained experiment on the Bt talong, UPLB filed with BPI several
applications for issuance of Biosafety Permits to conduct multi-locational field testing of Bt
talong. Even before the proponent submitted its application, petitioner BPI conducted a
consultative meeting with the proponent to enlighten the latter about the requirements s et
out by DA AO No. 8.
Thereafter, petitioner BPI evaluated UPLB's applications vis-a-vis the requirements of Section 8
of DA AO No. 8 and found them to be sufficient in form and substance, to wit:
First. The applications were in the proper format and contained all of the relevant information
as required in Section 8 (A) (1) of DA AO No. 08.
Second. The applications were accompanied by a (i) Certification from the NCBP that the
regulated article has undergone satisfactory testing under contained conditions in the
Philippines, (ii) technical dossier consisting of scientific literature and other scientific materials
relied upon by the applicant showing that Bt talong will not pose any significant risks to human
health and the environment, and (iii) copy of the proposed PIS for Field Testing as prescribed
by Section 8 (A) (2) of DA AO No. 08; and
Third. The applications contained the Endorsement of proposal for field testing, duly approved
by the majority of all the members of the respective Institutional Biosafety Committees (IBC),
including at least one community representative, as required by Section 8 (E) of DA AO No. 08.
a. Under Sections 1 (L) and 8 (D) of DA AO No. 08, the IBC is responsible for the initial
evaluation of the risk assessment and risk management strategies of the applicant for field
testing using the NCBP guidelines. The IBC shall determine if the data obtained under
contained conditions provide sufficient basis to authorize the field testing of the regulated
article. In making the determination, the IBC shall ensure that field testing does not pose any
significant risks to human health and the environment. The IBC may, in its discretion, require

the proponent to perform additional experiments under contained conditions before acting on
the field testing proposal. The IBC shall either endorse the field testing proposal to the BPI or
reject it for failing the scientific risk assessment.
b. Relatedly, UPLB had previously complied with Section 1 (L) of DA AO No. 08 which requires
an applicant for field testing to establish an IBC in preparation for the field testing of a
regulated article and whose membership has been approved by the BPI. Section 1 (L) of DA AO
No. 08, requires that the IBC shall be composed of at least five (5) members, three (3) of whom
shall be designated as "scientist-members" who shall possess scientific and technological
knowledge and expertise sufficient to enable them to evaluate and monitor properly any work
of the applicant relating to the field testing of a regulated article, and the other members are
designated as "community representatives" who are in a position to represent the interest of
the communities where the field testing is to be conducted.
Before approving the intended multi-locations [field] trials, petitioner BPI, pursuant to Section
8 (F) of DA AO No. 08, forwarded the complete documents to three (3) independent Scientific
Technical Review Panel (STRP) members. Pending receipt of the risk assessment reports of the
three STRP members, petitioner BPI conducted its own risk assessment.
Thereafter, on separate occasions, petitioner BPI received the final risk assessment reports of
the three STRP members recommending the grant of Biosafety Permits to UPLB after a
thorough risk assessment and evaluation of UPLB's application for field trial of Bt talong.
Meanwhile, petitioner BPI received from UPLB proofs of posting of the PISs for Field Testing in
each concerned barangays and city/municipal halls of the localities having jurisdiction over its
proposed field trial sites.
In addition to the posting of the PISs for Field Testing, petitioner BPI conducted consultative
meetings and public seminars in order to provide public information and in order to give an
opportunity to the public to raise their questions and/or concerns regarding the Bt talongfield
trials.36ChanRoblesVirtualawlibrary
Petitioners maintain that Sections 26 and 27 of the Local Government Code are inapplicable to
the Bt talong field testing considering that its subject matter is not mass production for human
consumption. The project entails only the planting of Bt eggplants and cultivation in a
controlled environment; indeed, the conduct of a field trial is not a guarantee that the Bt
talong will be commercialized and allowed for cultivation i n the Philippines.
On the non-exhaustion of administrative remedies by the respondents, petitioners note that
during the period of public consultation under DAO 08-2002, it is BPI which processes written
comments on the application for field testing of a regulated article, and has the authority to
approve or disapprove the application. Also, under Section 8 (P), BPI may revoke a biosafety
permit issued on the ground of, among others, receipt of new information that the field
testing poses significant risks to human health and the environment. Petitioners assert they
were never remiss in the performance of their mandated functions, as shown by their
immediate action with respect to the defective certification of posting of PIS in Kabacan, North
Cotabato. Upon receiving the letter-complaint on January 24, 2012, BPI readily ordered their

re-posting. The same incident occurred in Davao City, where BPI refused to lift the suspension
of biosafety permits until "rectification of the conditions for public consultation is carried out."
To underscore respondents' blatant disregard of the administrative process, petitioners refer
to documented instances when respondents took the law in their own hands. Greenpeace
barged into one of the Bt talong field trial sites at Bgy. Paciano Rizal, Bay, Laguna, forcibly
entered the entrance gate through the use of a bolt cutter, and then proceeded to uproot the
experimental crops without permission from BPI or the project proponents. Petitioners submit
that the non-observance of the doctrine of exhaustion of administrative remedies results in
lack of cause of action, one of the grounds under theRules of Court justifying the dismissal of a
complaint.

framework under DAO 08-2002.

On policy grounds, Crop Life argues that requiring all organisms/plants to be considered
absolutely safe before any field testing may be allowed, would result in permanently placing
the Philippines in the shadows of more devel oped nations (whose economies rest on emerging
markets importing products from them). It points out that the testing of Bt talong specifically
addresses defined problems such as the need to curb the misuse of chemical pesticides.
Biotechnology Coalition of the Philippines (BCP)
BCP is a non-stock, non-profit membership association, a broad-based multi-sectoral coalition
of advocates of modern biotechnology in the Philippines.

Petitions-in-Intervention
Crop Life Philippines, Inc. (Crop Life)
Crop Life is an association of companies which belongs to a global (Crop Life International) as
well as regional (Crop Life Asia) networks of member-companies representing the plant
science industry. It aims to "help improve the productivity of Filipino farmers and contribute to
Philippine food security in a sustainable way." It supports "innovation, research and
development in agriculture through the use of biology, chemistry, biotechnology, plant
breeding, other techniques and disciplines."
On procedural grounds, Crop Life assails the CA in rendering judgment in violation of
petitioners' right to due process because it was prevented from cross-examining the
respondents' expert witnesses and conducting re-direct examination of petitioners' own
witnesses, and being an evidently partial and prejudiced court. It said the petition for writ
of kalikasan should have been dismissed outright as it effectively asks the Court to engage in
"judicial legislation" to "cure" what respondents feel is an inadequate regulatory framework
for field testing of GMOs in the Philippines. Respondents also violated the doctrine of
exhaustion of administrative remedies, and their petition is barred by estoppel and laches.
Crop Life concurs with the petitioners in arguing that respondents failed to specifically allege
and prove the particular environmental damage resulting from the Bt talong field testing. It
cites the scientific evidence on record and the internationally accepted scientific standards on
GMOs and GMO field testing, and considering the experience of various countries engaged in
testing GMOs, telling us that GMO field testing will not damage the environment nor harm
human health and more likely bring about beneficial improvements.
Crop Life likewise assails the application of the Precautionary Principle by the CA which
erroneously equated field testing of Bt talong with Bt talong itself; failed to recognize that in
this case, there was no particular environmental damage identified, much less proven; relied
upon the article of Prof. Seralini that was retracted by the scientific journal which published it;
there is no scientific uncertainty on the adverse effects of GMOs to environment and human
health; and did not consider respondents' failure to prove the insufficiency of the regulatory

Reversal of the CA ruling is sought on the following grounds:

I.
THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF THE KALIKASAN PETITION IN THE
ABSENCE OF ANY JUSTICIABLE CONTROVERSY.
II.
EXISTING LEGISLATION AND ADMINISTRATIVE REGULATIONS ALREADY INCORPORATE THE
PRECAUTIONARY PRINCIPLE AS A GUIDING PRINCIPLE IN RELATION TO GMOs.
III.
THE CA DECISION AND THE CA RESOLUTION IMPROPERLY APPLIED THE PRECAUTIONARY
PRINCIPLE.
IV.
THE COURT OF APPEALS' ERRONEOUS APPLICATION OF THE PRECAUTIONARY PRINCIPLE, IF
SUSTAINED, WOULD PRODUCE A DANGEROUS PRECEDENT THAT IS ANTI-PROGRESS, ANTITECHNOLOGY AND, ULTIMATELY, DETRIMENTAL TO THE FILIPINO
PEOPLE.37ChanRoblesVirtualawlibrary
BCP argued that in the guise of taking on a supposed justiciable controversy, despite the Bt
talong field trials having been terminated, the CA entertained a prohibited collateral attack on
the sufficiency of DAO 08-2002. Though not invalidating the issuance, which the CA knew was
highly improper, it nonetheless granted the petition for writ of kalikasan on the theory that
"mere biosafety regulations" were insufficient to guarantee the safety of the environment and
the health of the people.
Also reiterated were those grounds for dismissal already raised by the petitioners: failure to
exhaust administrative remedies and finality of findings of administrative agencies.
BCP further asserts that the application of a stringent "risk assessment" process to regulated
articles prior to any release in the environment for field testing mandated by AO No. 8
sufficiently complies with the rationale behind the development of the preca utionary
principle. By implementing the stringent provisions of DAO 08-2002, in conjunction with the

standards set by EO 514 and the NBF, the government preemptively intervenes and takes
precautionary measures prior to the release of any potentially harmful substance or article
into the environment. Thus, any potential damage to the environment is prevented or
negated. Moreover, international instruments ratified and formally adopted by the Philippines
(CBD and the Cartagena Protocol) provide additional support in the proper application of the
precautionary principle in relation to GMOs and the environment.
On the "misapplication" by the CA of the precautionary principle, BCP explains that the basic
premise for its application is the existence of threat of harm or damage to the environment,
which must be backed by a reasonable scientific basis and not based on mere hypothetical
allegation, before the burden of proof is shifted to the public respondents in a petition for writ
of kalikasan. Here, the CA relied heavily on its observation that "... field trials of bt talongcould
not be declared ... as safe to human health and to ecology, with full scientific certainty, being
an alteration of an otherwise natural state of affairs in our ecology" and "introducing a
genetically modified plant in our intricate world of plants by humans certainly appears to be an
ecologically imbalancing act," among others. BCP finds that this pronouncement of the CA
constitutes an indictment not only against Bt talong but against all GMOs as well. The
appellate court's opinion is thus highly speculative, sweeping and laced with obvious bias.
There being no credible showing in the record that the conduct of Bt talong field trials entails
real threats and that these threats pertain to s erious and irreversible damage to the
environment, BCP maintains that the precautionary principle finds no application in this case.
While Rule 20 of the Rules of Procedure for Environmental Cases states that "[w]hen there is a
lack of full scientific certainty in establishing a causal link between human activity and
environmental effect, the court shall apply the precautionary principle in resolving the case
before it," the CA failed to note that the element of lack of full scientific certainty pertains
merely to the causal link between human activity and environmental effect, and not the
existence or risk of environmental effect.
BCP laments that sustaining the CA's line of reasoning would produce a chilling effect against
technological advancements, especially those in agriculture. Affirming the CA decision thus
sets a dangerous precedent where any and all human activity may be enjoined based on
unfounded fears of possible damage to health or the environment.
Issues
From the foregoing submissions, the Court is presented with the following issues for
resolution:
1.

Legal standing of respondents;

2.

Mootness;

3.

Violation of the doctrines of primary jurisdiction and exhaustion of administrative

remedies;

4.

Application of the law on environmental impact statement/assessment on projects

involving the introduction and propagation of GMOs in the country;

5.

Evidence of damage or threat of damage to human health and the environment in

two or more provinces, as a result of the Bt talongfield trials;

6.

Neglect or unlawful omission committed by the public respondents in connection

with the processing and evaluation of the applications for Bt talong field testing; and

7.

Application of the Precautionary Principle.

The Court's Ruling

Legal Standing
Locus standi is "a right of appearance in a court of justice on a given question." 38 It refers
particularly to "a party's 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."39
However, the rule on standing is a matter of procedure which can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest
so requires, such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest.40 The Court thus had invariably
adopted a liberal policy on standing to allow ordinary citizens and civic organizations to
prosecute actions before this Court questioning the constitutionality or validity of laws, acts,
rulings or orders of various government agencies or instrumentalities.41
Oposa v. Factor an, Jr.42 signaled an even more liberalized policy on locus standi in public suits.
In said case, we recognized the "public right" of citizens to "a balanced and healthful ecology
which, for the first time in our nation's constitutional history, is solemnly incorporated in the
fundamental law." We held that such right need not be written in the Constitution for it is
assumed, like other civil and political 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. Such right carries with it the correlative duty to refrain from impairing the
environment.
Since the Oposa ruling, ordinary citizens not only 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 as well as future generations. 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.43 (Emphasis supplied.)
The liberalized rule on standing is now enshrined in the Rules of Procedure for Environmental
Cases which allows the filing of a citizen suit in environmental cases.44 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," and aims to "further encourage the protection
of the environment."45
There is therefore no dispute on the standing of respondents to file before this Court their
petition for writ of kalikasan and writ of continuing mandamus.
Mootness
It is argued that this case has been mooted by the termination of all field trials on August 10,
2012. In fact, the validity of all Biosafety permits issued to UPLB expired in June 2012.
An action is considered 'moot' when it no longer presents a justiciable controversy because
the issues involved have become academic or dead, or when the matter in dispute has already
been resolved and hence, one is not entitled to judicial intervention unless the issue is likely to
be raised again between the parties.46 Time and again, courts have refrained from even
expressing an opinion in a case where the iss ues have become moot and academic, there
being no more justiciable controversy to speak of, so that a determination thereof would be of
no practical use or value.47
Nonetheless, courts will decide cases, otherwise moot and academic if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar and the public; and fourth, the
case is capable of repetition yet evading review.48 We find that the presence of the second and
fourth exceptions justified the CA in not dismissing the case despite the termination of Bt
talong field trials.

While it may be that the project proponents of Bt talong have terminated the subject field
trials, it is not certain if they have actually completed the field trial stage for the purpose of
data gathering. At any rate, it is on record that the proponents expect to proceed to the next
phase of the project, the preparation for commercial propagation of the Bt eggplants.
Biosafety permits will still be issued by the BPI for Bt talong or other GM crops. Hence, not
only does this case fall under the "capable of repetition yet evading review" exception to the
mootness principle, the human and environmental health hazards posed by the introduction
of a genetically modified plant, a very popular staple vegetable among Filipinos, is an issue of
paramount public interest.
Primary Jurisdiction and Exhaustion of Administrative Remedies
In Republic v. Lacap,49 the Court explained the related doctrines of primary jurisdiction and
exhaustion of administrative remedies, as follows:
The general rule is that before a party may seek the intervention of the court, he should first
avail of all the means afforded him by administrative processes. The issues which
administrative agencies are authorized to decide should not be summarily taken from them
and submitted to a court without first giving such administrative agency the opportunity to
dispose of the same after due deliberation.
Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary
jurisdiction; that is, courts cannot or will not determine a controversy involving a question
which is within the jurisdiction of the administrative tribunal prior to the resolution of that
question by the administrative tribunal, where the question demands the exercise of sound
administrative discretion requiring the special knowledge, experience and services of the
administrative tribunal to determine technical and intricate matters of fact.
Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine
of primary jurisdiction, which are based on sound public policy and practical considerations,
are not inflexible rules. There are many accepted exceptions, such as: (a) where there is
estoppel on the part of the party invoking the doctrine; (b) where the challenged
administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is
unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d)
where the amount involved is relatively small so as to make the rule impractical and
oppressive; (e) where the question involved is purely legal and will ultimately have to be
decided by the courts of justice; (f) where judicial intervention is urgent; (g) when its
application may cause great and irreparable damage; (h) where the controverted acts violate
due process; (i) when the issue of non-exhaustion of administrative remedies has been
rendered moot; (j) when there is no other plain, speedy and adequate remedy; (k) when
strong public interest is involved; and, (1) in quo warranto proceedings. x x x (Emphasis
supplied)
Under DAO 08-2002, the public is invited to submit written comments for evaluation by BPI
after public information sheets have been posted (Section 7[G]). Section 7(P) also provides for
revocation of field testing permit on certain grounds, to wit:

P. Revocation of Permit to Field Test. - A Permit to Field Test may be revoked for any of the
following grounds:
1.

Provision of false information in the Application to Field Test;

2.

Violation of SPS or biosafety rules and regulations or of any conditions specified in

the permit;

3.

Failure to allow the inspection of the field testing site;

4.

Receipt by BPI of new information that the field testing of the regulated article poses
significant risks to human health and the environment;

5.

Whether the regulated article was imported, misdeclaration of shipment; or

6.

Such other grounds as BPI may deem reasonable to prevent significant risks to
human health and the environment.

Respondents sought relief under the Rules of Procedure for Environmental Cases , claiming
serious health and environmental adverse effects of the Bt talong field trials due to "inherent
risks" associated with genetically modified crops and herbicides. They sought the immediate
issuance of a TEPO to enjoin the processing for field testing and registering Bt talong as
herbicidal product in the Philippines, stopping all pending field trials of Bt talonganywhere in
the country, and ordering the uprooting of planted Bt talong in the field trial sites.
In addition to the TEPO and writ of kalikasan, respondents also sought the issuance of a writ of
continuing mandamus commanding the respondents to: (1) comply with the requirement of
environmental impact statement; (2) submit comprehensive risk assessments, field test
reports, regulatory compliance reports and other material documents on Bt talong including
issued certifications on public consultation with LGUs; (3) work with other agencies to submit a
draft amendment to biosafety regulations; and (4) BPI, in coordination with relevant
government agencies, conduct balanced nationwide public information on the nature of Bt
talong field trial, and a survey of its social acceptability.
Clearly, the provisions of DAO 08-2002 do not provide a speedy, or adequate remedy for the
respondents "to determine the questions of unique national and local importance raised here
that pertain to laws and rules for environmental protection, thus [they were] justified in
coming to this Court."50 We take judicial notice of the fact that genetically modified food i s an
intensely debated global issue, and despite the entry of GMO crops (Bt corn) into the
Philippines in the last decade, it is only now that such controversy involving alleged damage or
threat to human health and the environment from GMOs has reached the courts.
Genetic Engineering

Genetic manipulation has long been practiced by conventional breeders of plant or animal to
fulfill specific purposes. The basic strategy employed is to use the sexual mechanism to
reorganize the genomes of two individuals in a new genetic matrix, and select for individuals in
the progeny with the desirable combination of the parental characteristics. Hybridization is the
conventional way of creating variation. In animals, mating is effected by introducing the
desired sperm donor to the female at the right time. In plants, pollen grains from the desired
source are deposited on the stigma of a receptive female plant. Pollination or mating is
followed by fertilization and subsequently development into an embryo. The effect of this
action is the reorganization of the genomes of two parents into a new genetic matrix to create
new individuals expressing traits from both parents. The ease of crossing of mating varies from
one species to another. However, conventional breeding technologies are limited by their long
duration, need for sexual compatibility, low selection efficiency, and restricted gene pool. 51
Recombinant DNA (rDNA) technology, often referred to as genetic engineering, allows
scientists to transfer genes from one organism to any other, circumventing the sexual process.
For example, a gene from a bacterium can be transferred to corn. Consequently, DNA
technology allowed scientists to treat all living things as belonging to one giant breeding pool.
Unlike other natural genome rearrangements phenomena, rDNA introduces alien DNA
sequences into the genome. Even though crossing of two sexually compatible individuals
produces recombinant progeny, the term recombinant DNA is restricted to the product of the
union of DNA segments of different biological origins. The product of recombinant DNA
manipulation is called a transgenic organism. rDNA is the core technology of biotechnology.52
The organism that is created through genetic engineering is called a genetically modified
organism (GMO). Since the production of the first GMOs in the 1970s, genes have been
transferred between animal species, between plant species, and from animal species to plant
species. Some genes can make an animal or plant grow faster or larger, or both. A gene
produced by flounder (anti-freeze) was transplanted into salmon so that salmon can be farmed
in colder climates. Many species offish are genetically engineered to speed growth, to alter
flesh quality, and to increase cold and disease resistance. In farm animals such as cattle, genes
can be inserted to reduce the amount of fat in meat, to increase milk production, and to
increase superior cheese-making proteins in milk. Biotechnology has also modified plants to
produce its own pesticide, resist common diseases or to tolerate weed-killing herbicide
sprays.53
Despite these promising innovations, there has been a great deal of controversy over
bioengineered foods. Some scientists believe genetic engineering dangerously tampers with
the most fundamental natural components of life; that genetic engineering is scientifically
unsound; and that when scientists transfer genes into a new organism, the results could be
unexpected and dangerous. But no long-term studies have been done to determine what
effects GMO foods might have on human health.54
Genetically Modified Foods

The term GM food refers to crop plants created for human or animal consumption using the
latest molecular biology techniques. These plants are modified in the laboratory to enhance
desired traits such as increased resistance to herbicides or improved nutritional
content.55 Genetic modification of plants occurs in several stages:
1.

An organism that has the desired characteristic is identified and the specific gene
producing this characteristic is located and the DNA is cut off.

2.

The gene is then attached to a carrier in order to introduce the gene into the cells of
the plant to be modified. Mostly plasmid (piece of bacterial DNA) acts as a carrier.

3.

Along with the gene and carrier a 'promoter' is also added to ensure that the gene
works adequately when it is introduced into the plant.

4.

The gene of interest together with carrier and promoter is then inserted into
bacterium, and is allowed to reproduce to create many copies of the gene which are
then transferred into the plant being modified.

5.

The plants are examined to ensure that they have the desired physical characteristic
conferred by the new gene.

6.

The genetically modified plants are bred with conventional plants of the same variety
to produce seed for further testing and possibly for future commercial use. The entire
process from the initial gene selection to commercial production can take up to ten
years or more.56

Benefits of GM Foods
The application of biotechnology in agricultural production promises to overcome the major
constraints being faced in farming such as insect pest infestation and diseases which lead to
substantial yield losses. Pest-resistant crops could substantially improve yields in developing
countries where pest damage is rampant and reduce the use of chemical pesticides. Crop
plants which have been genetically engineered to withstand the application of powerful
herbicides57 using genes from soil bacteria eliminates the time-consuming and not costeffective physical removal of weeds by tilling. The herbicides to which the GM crops are
tolerant are "broad spectrum" weedkillers, which means they can be sprayed over the entire
field, killing all plants apart from the GM crop. Herbicide-tolerant crops include transgenes
providing tolerance to the herbicides (glyphosate or glufosinate ammonium). These herbicides
kill nearly all kinds of plants except those that have the tolerance gene. Another important
benefit is that this class of herbicides breaks down quickly in the soil, eliminating residue
carryover problems and reducing adverse environmental impacts.58
Some plants are genetically engineered to withstand cold climates such as GM strawberries or

soybeans, expressing the anti-freeze gene of arctic flounder, to protect themselves against the
damaging effects of the frost; and GM tobacco and potato with anti-freeze gene from cold
water fish. Crops could also be genetically modified to produce micronutrients vital to the
human diet such as the "golden rice" genetically modified to produce beta-carotene, which
can solve Vitamin A deficiency and prevent night blindness in pre-school children. Other
efforts to enhance nutritional content of plants include the genetic modification of canola to
enhance Vitamin E content or better balance fatty acids, cereals for specific starch or protein,
rice for increased iron to reduce anemia, and plant oils to adjust cholesterol levels. There are
also food crops engineered to produce edible vaccines against infectious diseases that would
make vaccination more readily available to children around the world. For example, transgenic
bananas containing inactivated viruses protecting against common developing world diseases
such as cholera, hepatitis B and diarrhea, have been produced. These vaccines will be much
easier to ship, store and administer than traditional injectable vaccines.59
Overall, biotechnology is perceived as having the potential to either help or hinder reconciling
of the often opposing goals of meeting the human demand for food, nutrition, fiber, timber,
and other natural resources. Biotech crops could put more food on the table per unit of land
and water used in agriculture, thus resulting in decreased land and water diverted to human
uses. Increasing crop yields and reducing the amount of cultivated land necessary would also
reduce the area subject to soil erosion from agricultural practices, which in turn would limit
associated environmental effects on water bodies and aquatic species and would reduce loss
of carbon sinks and stores into the atmosphere.60
Adverse Health Effects of GMOs
Along with the much heralded benefits of GM crops to human health and environment, there
emerged controversial issues concerning GM foods.
In 1999, it was found that genetically engineered foods can have negative health effects. Based
on scientific studies, these foods can unleash new pathogens, contain allergens and toxins, and
increase the risk of cancer, herbicide exposure, and harm to fetuses and infants. 61 Independent
studies conducted went as far to conclude that GM food and feed are "inherently hazardous to
health."62
A widely reported case is that of the Brazil nut gene expressed in soybean in order to increase
the methionine content for animal feed. The protein was subsequently shown to be an
allergen and the product was never marketed. Genetically modified foods can introduce novel
proteins into the food supply from organisms that are never consumed as foods, which may
pose a health risk. This may elicit potentially harmful immunological responses , including
allergic hypersensitivity.63
A feeding experiment conducted by Dr. Arpad Pusztai also demonstrated that potatoes
genetically altered to produce lectins, natural insecticides, to protect them against aphids,
damaged the animals' gut, other organs, and immune system. Dr. Pusztai found that "the
damage originated not from the transgene and its expressed product but from the damage

caused by the insertion of the transgene, probably due to insertional mutagenesis." 64 If

confirmed, Pusztai's conclusions will reinforce concerns that gene insertion itself may create
new toxins; it will also implicate the toxin commonly used in other genetically engineered
crops - the Bt toxin which, Pusztai says, is also a lectin.65
The use of antibiotic resistance marker (arm) gene, inserted into a plant or microbe, that helps
determine if the foreign gene has successfully spliced into the host organism, is another cause
of grave concern among scientists. These arm genes might unexpectedly recombine with
disease-causing bacteria or microbes in the environment or in the guts of animals or humans
who eat GM food, thus contributing to the growing public health danger of antibioticresistance of infections that cannot be cured with traditional antibiotics (e.g., new strains of
salmonella, e-coli, campylobacter and enterococci).66 However, recent advances in genetic
engineering indicate that use of such selection markers is likely to diminish with the
anticipated development of alternative types of marker genes.67
Increased cancer risk is another critical issue in the consumption of GM foods. A growth
hormone genetically modified to stimulate milk production in cows was found to elevate levels
of IGF-1 (insulin-like Growth Factor-1, identical versions of which occurs in cows and humans)
in cow's milk by 80%. IGF-1 is reported to be a key factor in prostate cancer, breast cancer and
lung cancer.68 Dr. Samuel Epstein of the University of Illinois warned of the danger of high
levels of IGF-1 contained in milk cows injected with synthetic bovine growth hormone (rBGH),
which could be a potential risk factor for breast and gastrointestinal cancers. 69
Glyphosate, the active ingredient in Monsanto's Roundup herbicide, has been found to
worsen modern diseases. A report published in the journalEntropy argues that glyphosate
residues, found in most commonly consumed foods in the Western diet courtesy of genetically
engineered sugar, corn, soy and wheat, "enhance the damaging effects of other food-borne
chemical residues and toxins in the environment to disrupt normal body functions and induce
disease." Another research demonstrated a connection between increased use of Roundup
with rising autism rates in the US.70
Adverse Effects of GMOs to the Environment
Genetically modified crops affect the environment in many ways such as contaminating nonGMO plants, creating super weeds and super pests, harming non-target species, changing soil
microbial and biochemical properties, and threatening biodiversity.
There are two primary types of technology so far deployed: insect resistance (Bt) and herbicide
tolerance (HT). Both have drastic modes of action to kill the target species at high
efficiency. Bt crops contain a toxin lethal to certain insects, and Bt sprays have been used by
organic farmers as a last option to deal with certain pests like the corn borer. It is feared that
genetically modified Bt crops will speed up resistance to Bt, thereby rendering the organic
spray ineffective.71 Lab and field tests also indicate that common plant pests such as cotton
bollworms, living under constant pressure from GE crops, will soon evolve into "superpests"
completely immune to Bt sprays and other environmentally sustainable biopesticides.72 In the

case of HT, the technology involves the combined use of a chemical herbicide and a GM plant.
The herbicide is generally a broad spectrum herbicide (commonly glyphosate or glufosinate)
which kills weeds while leaving the crop plant alive as it is genetically engineered to be
resistant to the herbicide. The herbi cide acts to inhibit an essential enzyme that is found in all
plants and as a result is able to eliminate all weeds whereas most conventional herbicides are
selective in their action and target a limited number of weeds. Concern has been raised
regarding over-reliance on use of one or two herbicides in increased amounts over time which
leads to the emergence of herbicide resistant weeds. Also, the transfer of an herbicideresistance gene into a weed can convert it into a superweed. Pests and weeds will emerge that
are pesticide or herbicide resistant, which means that stronger, more toxic chemicals will be
needed to get rid of the pests.73
It is a well-accepted fact that genetically engineered plants can move beyond the field sites
and cross with wild relatives.74 It is by nature a design of plants to cross pollinate to spread
genes further afield. Maize, oil seed rape, sugar beet, barley, among others, are wind and
insect pollinated, allowing pollen to travel large distances. In GM crop fields, pollen drift and
insect pollination create obvious problems for nearby non-GM or organic crops.75 GM maize
could cross-pollinate neighboring non-GM or organic maize crops. Maize pollen can travel at
least 500-700 meters and still be viable and distances of several kilometers have even been
reported.76 But many experiments showed varying results and actual cross-pollinations were
observed in Mexico up to 200 meters only, while in Oklahoma it was 500 meters. In crop
species that are outcrossers, many environmental factors influence the maximum pollination
distance such as the size of pollen grains, the humidity in the air, and the wind
speed.77Brinjal is usually self-pollinated, but the extent of cross-pollination has been reported
as high as 48% and hence it is classified as cross-pollinated crop. The cone-like formation of
anthers favors self-pollination; but since the stigma ultimately projects beyond the anthers,
there is an ample opportunity for cross-pollination. The rates of natural cross-pollination may
vary depending on genotype, location, and insect activity. The extent of outcrossing has been
reported from 3 to 7% in China and from 0 to 8.2% (with a mean of 2.7%) at Asian Vegetable
Research Development Centre; however the Indian researchers have reported 2 to 48%
outcrossing inbrinjal varieties in India. Outcrossing primarily takes place with the help of
insects.78
The StarLink incident is also a widely reported GM fiasco. In June 2000, Starlink, a genetically
modified yellow corn which contains the pesticide Bt in every cell, was found in white corn
tortilla chips in Florida, USA. Starlink had been approved for animal feed but not for human
consumption due to concerns about dangerous allergic reactions. The Starlink incident is often
cited to illustrate how difficult it is to keep genetically modified crops from spreading.79
This gene flow to wild species is particularly alarming to environmentalists. The wild species
from which our agricultural plants originate are an important genetic resource for further plant
breeding if, for example, there is a requirement for improved resistance to climate change or
plant pests. Future plant breeding could be jeopardized if transgenes spread into these
resources. Similarly, agriculture in the centers of origin could be perma nently damaged if
transgenes spread into regional landraces.80 Invasive species can replace a single species or a

whole range of species, and they can also change the conditions within ecological systems.
Crossing can cause losses in the genetic information of the original species, a reduction in
genetic diversity and an ongoing incremental change of genetic identity in the original plants.
It is hard to predict which species will become invasive.81 Indeed, GM crops could threaten the
centers of crop biodiversity or outgrow a local flora to the detriment of native species.82
Bt gene in genetically modified crops might be toxic to non-target organisms that consume it.
When Bt corn sheds its pollen, these are cast into the wind, dusting nearby plants and trees.
Concern has been expressed about the potential toxicity of the Bt toxin in corn pollen to the
monarch butterfly because initial laboratory studies showed increased mortality in larvae.
However, in another study it was believed that it is unlikely that a significant risk to those
butterflies exists.83
On the effect of transgene crops on soil, one study investigated CrylAcc and CpTI proteins and
their effects on microbial properties and enzyme activities. Results showed that there was
persistence of said proteins in soil under 4-year consecutive cultivation of transgenic cottons.
Soil microbial biomass carbon, microbial activities, and soil enzyme activities (except urease
and phosphodiesterase) significantly decreased in soil under transgenic cottons. 84
In another review, it was stated that the direct effects of the plant that has been modified is of
the most concern since the introduction of transgenic proteins for pest and disease resistance
can involve the production of chemical substances that are potentially toxic to non-target soil
organisms, including mycorrhizal fungi and soil microfauna that are involved in organic matter
decomposition. Experimental studies have shown that the transgenic proteins Btcrystal toxin
and T4 lysozyme, though used to prevent insect damage to the above ground plant parts, are
not only present in root exudates but that they maintain biological activity after entering the
soil.85

Both petitioners and respondents submitted documentary evidence consisting of reports of

scientific studies and articles in support of their respective positions on the benefits and risks
of GM plants.
Further, the parties presented their respective expert witnesses who testified on the
allegations raised in the petition concerning damage or threat of damage to human health and
the environment resulting from the conduct of Bt talong field trials in the Philippines. The CA
conducted "hot tubbing," the colloquial term for concurrent expert evidence, a method used
for giving evidence in civil cases in Australia. In a "hot tub" hearing, the judge can hear all the
experts discussing the same issue at the same time to explain each of their points in a
discussion with a professional colleague. The objective is to achieve greater efficiency and
expedition, by reduced emphasis on cross-examination and increased emphasis on
professional dialogue, and swifter identification of the critical areas of disagreement between
the experts.88
On November 20, 2012, the parties' expert witnesses testified in a hot tub hearing before the
chairman and members of the CA's Special Thirteenth Division. Dr. Chakraborty, Dr. Medina
and Dr. Malayang were presented by the petitioners while Dr. Davies, Dr. Halos, Dr. Ebora and
Dr. Cario appeared for the respondents.
The following are summaries of the expert witnesses' judicial affidavits:
For Petitioners
DR. DAVIES, Professor of Plant Physiology at Cornell University, Jefferson Science Fellow
serving as senior science advisor on agricultural biotechnology in the US Department of State,
and editor for plant physiology for McGraw-Hill Encyclopedia of Science and Technology.

As to the herbicide glyphosate, recent studies revealed its negative effects on the soil, which
include compaction and resultant runoff, the killing of beneficial microbes and bacteria, and
the exhaustion of necessary minerals and nutrients that plants require. It was found that
glyphosate "locks up" manganese and other minerals in the soil so that they can't be utilized
by the plants that need them, and that it is toxic to rhizobia, the bacterium that fixes nitrogen
in the soil. There is likewise evidence showing that glyphosates can make their way to
groundwater supplies.86 In a study which tested the effects of the herbicide Roundup on six
species of larval amphibians from North America, it was demonstrated that when we "use
realistic exposure times and the frequently occurring stress of predators found in natural
ecologic communities, one of our most widely applied herbicides (Roundup) has the potential
to kill many species of amphibians." At the same time, the study noted that Monsanto
Corporation has recently released "an additional formulation of glyphosate (Roundup
Biactive), which contains a different (but unspecified) surfactant that is reported to be less
toxic."87

In his review of agricultural biotechnology around the world, he has not encountered any
verifiable report of a field trial of any GM crop that caused damage to the environment and to
human health. This involves more than 25,000 field trials in 20 years with crops such
as Bteggplant, Bt cotton, Bt corn, and others. The same applies to the commercial cultivation
of Bt crops, which have been grown in ever increasing quantities worldwide for 16 years and
now comprise the majority of the world acreage of maize and cotton.

Evidence of Damage or Threat of Damage to Human Health and the Environment

GMOs have been proven safe as conventionally-bred crops in animal studies. A small number
of poorly done studies purportedly claiming negative effects, should be viewed with great

A recent European Union (EU) report which concludes that more than 130 EU research
projects covering a period of more than 25 years of research involving more than 500
independent research groups, show that consuming foods containing ingredients derived from
GM crops is no riskier than consuming the same foods containing ingredients from
conventional crops. The World Health Organization (WHO), American Medical Association, US
National Academy of Sciences, European Food Safety Authority (EFSA) all have come to the
same conclusion.

caution and have been highly criticized for their veracity by the overwhelming majority of
highly respected scientists. Many hundreds of studies show no harmful effects. To date, not a
single rigorous study of GM foods in animals has revealed any adverse effect; not a single case
of allergy, illness, cancer, or death have been shown to be associated with foods derived from
GM crops, despite the fact that they have been consumed by Americans for 16 years.

Institutional Biosafety Committees of UPLB and International Rice Research Institute (IRRI);
and was extensively involved in the isolation, bioassay or efficacy testing and development
of Bt as microbial insecticides for the control of Asian corn borer and mosquito larvae at
BIOTECH.

From her research, she gathered that the protein product of the Bt gene CrylAcc in Bt cotton
that is also in Bt eggplant has been found safe by many food and environmental safety
regulatory agencies such as those in Australia, New Zealand, USA, Canada, Brazil, China, India,
Mexico, Argentina, South Africa, Japan and EU.

The contained field trial experiments, among others, were designed to address concerns on
cross-pollination or horizontal gene transfer, pollination distances, harm to beneficial
organisms, and development of insect resistance. To prevent cross-pollination, an isolation
distance of 200 meters from other areas where eggplants are grown or wild relatives are
present, was observed, and with five (5) rows of non-transgenic eggplants that serve as pollen
trap plants. As to the flight distance of honeybees reaching 4 kilometers, what was not
mentioned is the viability of pollen after it was shed and travelled at a certain distance.
Numerous literatures have shown that isolation distances much less than 200 meters is
sufficient to prevent cross-pollination. Two studies are cited: Sekara and Bieniasz (2008) noted
that cross-pollination at a distance of 50 meters was nonexistent; and the Asian Vegetable
Research and Development Center (AVRDC) indicated that eggplants produce perfect flowers
which may be cross-pollinated but self-pollination is more common, the extent of natural
crossing depends upon insect activity and this can be avoided by isolating each variety by 20
meters or with another tall flowering plant. The isolation distance imposed by DA-BPI is 1 Ox
the recommended isolation distance; the 200 meters distance was found sufficient for pure
seed production in India (the same recommendation by Chen [2001] of AVRDC foundation for
seed production purity standards); field studies in 2 locations in India have shown that at a
distance beyond 30 meters no more outcrossing could be detected. Taking all these data into
account, the 48% outcrossing being raised by petitioners is most likely for adjacent plants and
therefore not a valid argument for the on-going field trials.

Since 2002, BPI has granted 95 biosafety permits for field trials. Of these 70 field trial permits
were for Bt corn, cotton and eggplant. No adverse effect of any of these Bt crop field trials
have been reported. No report of adverse effects of Bt crop field trial exists. All claims of
adverse health and environmental effects of Bt crops has not been scientifically validated. The
yearly expansion of GM crop areas in both the developing and industrialized countries is an
attestation of the preference of farmers and the economic benefits that accrue to them.

The Bt talong will not directly affect beneficial organisms like pollinators, predators and
parasites of insect pests because it is toxic only to caterpillars or insects belonging to Order
Lepidoptera (butterfly and moths). The selective toxicity of Bt protein in Bt talong is partly due
to the fact that the gut physiology of these insects is very different from caterpillars, and not
all caterpillars are affected by it. There is a significant number of literature on Bt protein's
selectivity and specificity.

GM crops have positive environmental impact. Currently commercialized GM crops have

reduced the adverse impacts of agriculture on biodiversity. The use of Bt crops has significantly
reduced the use of pesticides, and also increased farmer incomes.90

As to the development of insect resistance, this is not possible during the multi -location field
trials for Bt talong because of low selection pressure and limited exposure of the insect pest
to Bt talong. Insect resistance is not unique to GM crops as it is a commonly observed
biological reaction of insect pests to control measures like insecticides. In the event Bt
talong is approved for commercialization and will be widely used by fanners, this concern
could be addressed by insect resistance management (IRM); an IRM strategy should be
required prior to the commercial release of Bt talong.

Recent studies indicate that Bt crops enhance the ecological diversity in the areas surrounding
those where Bt crops are grown. Over a period of 13 years, cultivation of Bt cotton in China
results in an increase in insect diversity and abundance and a decrease in crop damaging
insects not only in Bt crop fields but also in surrounding non-Bt fields.
GM crops deliver significant yield increases, result in less exposure to pesticides, improve food
security worldwide, protect against devastating crop losses and famine, improve nutrition, and
some GM crop techniques help combat climate change.89
DR. HALOS, Ph.D. in Genetics, University of California Berkeley, B.S. Agriculture, Major in
Agronomy (Plant Breeding), UPLB, and served as Instructor, Associate Professor, Chief Science
Research Specialist, Research Director at UPLB, UP Diliman, De La Salle University, Forest
Research Institute now Ecosystems Research and Development Bureau of DENR and the
Biotechnology Coalition of the Philippines.

DR. EBORA, Ph.D. in Entomology, Michigan State University; B.S. Agriculture and M.S.
Entomology (Insect Pathology/Microbial Control), UPLB; Post-graduate trainings in
microbiology and biotechnology, Osaka University, Japan, and Intellectual Property
Management and Technology Transfer, ISAAA AmeriCenter, Cornell University, USA. Director,
and Research Associate Professor, National Institute of Molecular Biology and Biotechnology
(BIOTECH), UPLB; Philippine Coordinator of the Program for Biosafety Systems; former
Executive Director, Philippine Council for Industry, Energy and Emerging Technology Research
and Development, DOST; former Chair, Biosafety Committee, DOST; and was a Member of the

There is no compelling reason to stop the field trials; on the contrary they should be allowed
to proceed so that scientists and researchers will be able to generate valuable data and
information which will be helpful in making informed decisions regarding the usefulness of the
technology.91

For Respondents
DR. MALAYANG III, Ph.D. in Wildland Resource Science, University of California at Berkeley;
M.A. Philosophy, M.A. International Affairs (Southeast Asia Studies major in Economics), Ohio
University; AB Philosophy, UP Diliman; former Undersecretary of Environment and Natural
Resources; served as Environmental Science representative in the National Biosafety
Committee of the Philippines and participated in the drafting of the Philippines Biosafety
Framework; and student, lecturer and advocate of biodiversity, food security, biosafety and
environmental policy.
He is concerned with how GMOs are being introduced for commercial-scale use (as against
being used for academic research) in the Philippines on the following grounds: (a) how they
might contaminate the indigenous genetic resources of the country; (b) how they may cause
an imbalance of predator-prey relationships in ecosystems, so that certain species might
dominate ecological niches and erode their biodiversity and ecological stability; (c) how they
may erode the ability of farmers to control their genetic resources to sustain their cropping
systems; and (d) how much are present biosafety protocols able to safeguard the long-term
ecological and economic interests of the Philippines as a particularly biodiversity-rich country
and which is, therefore, highly sensitive to genetic pollution; to the extent that its biodiversity
is its long-term equity to advances in biotechnology, the most robust measures must be taken
so that such resources will not be lost.
Being a highly biodiversity-rich country, biosafety measures in the Philippines must be adopted
using a 3-stage approach: Stage 1 - Develop criteria for biosafety measures; meaning, first,
adopt a set of standards for determining the level of robustness of biosafety measures and
protocols that would be acceptable in the particular case of the Philippines; include required
scoping and internal and external validity requirements of impact and safety assessments;
Stage 2 - Using the criteria produced in Stage 1, develop biosafety measures and protocols to
be adopted in the Philippines; and Stage 3 - Apply the protocol with the highest rigor.
Biosafety must be a public affair involving a broad spectrum of the Filipino state rather than its
considerations being restricted only to specific professionals and s ectors in the country;
biosafety must be based on an enactment of Congress and open to challenge and adjudication
against international laws; provisions must be made to make it a crime against humanity to
recklessly erode and weaken genetic resources of our people.92
DR. MEDINA, Ph.D. in Environmental Biology, University of Guelph, Canada; M.S. (Insect and
Plant Ecology) and B.S. Agriculture, UPLB; National Coordinator of MASIPAG; served as
resource person in more than a hundred trainings and seminars, both local and abroad; served
as member in international agricultural assessment sponsored by Food and Agriculture
Organization (FAO), United Nations Environment Program (UNEP), WHO, and the World Bank;
worked on a project for development of resistance to corn borer in 1981 at the Institute of
Plant Breeding in UPLB, and served as researcher and later Associate Professor of
Environmental Management of the UP Open University.

Based on her studies and extensive experience, the Bt talong field testing poses the following
risks or hazards: (a) While natural Bt sprays used in organic farming have little effect on nontarget organisms because the bacterial 'pro-toxin' is in an inactive state and only becomes
toxic when processed and reduced in the gut of certain (ta rgeted) species of insect larvae, in
contrast, Bt plants contain an artificial, truncated Bt gene and less processing is required to
generate the toxin because the toxin is already in its active form. It is therefore less selective,
and may harm non-target insects that do not have the enzymes to process the pro-toxin, as
well as the pests for which it is intended; (b) Bt proteins from natural Bt sprays degrade
relatively quickly in the field as a result of ultraviolet light and lose most toxic activity within
several days to two weeks after application. In Bt crops, however, the Bt toxin is produced by
the internal system of the plants thus non-degradable by mere exposure to sunlight and
generated throughout the entire lifespan of the plant; (c) Bt talong can also affect the
environment by harming important or beneficial insects directly or indirectly. Genetically
engineered Bt eggplant, like other Btcrops, could be harmful to non-target organisms if they
consume the toxin directly in pollen or plant debris. This could cause harm to ecosystems by
reducing the numbers of important species, or reducing the numbers of beneficial organisms
that would naturally help control the pest species; (c) The evolution of resistance to Bt crops is
a real risk and is treated as such in ecological science throughout the world. If enough
individuals become resistant then the pest control fails; the pest becomes abundant and
affects crop yield. Granting the pest control practice is successful, it may also simply swap one
pest for another, a phenomenon known as secondary pest outbreak. Several studies have
shown that other pest insects are filling the void left by the absence of the one (or very few)
insect pests that Bt crops target, and this is now the problem with Bt maize.
Eggplant is 48% insect pollinated thereby any field release or field testing of genetically
modified Bt talong will eventually lead to contamination of non-genetically modified eggplant
varieties. Insects, particularly honeybees, can fly as far as 4 kilometers and therefore the 200
meters perimeter pollen trap area in the confined field testing set by BPI is not sufficient. And
once contamination occurs, genetic cleanup of eggplant or any other plant is impossible.
Moreover, intra-specific gene flow from Bt talong to other varieties and populations of
eggplants should be examined, as cultivated eggplant (Solanum melongena) can cross breed
with feral populations of S. melongena, and it is possible that cultivated varieties can revert to
wild phenotypes. Additionally, there is likely to be natural crossing between Bt talong and wild
relatives. Hybridization with perhaps as many as 29 wild relative species needs to be evaluated
carefully and the consequences of any hybridization that occurs needs to be evaluated.
In 2010, the Minister of Environment and Forests of the Government of India, in his decision
for moratorium of Bt Brinjal, listed potential contamination of eggplant varieties as one of the
reasons why the release of Bt Brinjal was not allowed. Dr. Andow of the University of
Minnesota also published an 84-pages report on the Environmental Risk Assessment of Bt
Brinjal, and among his conclusions is that several environmental risks were not considered and
nearly all the risk assessment done were inadequate. He concluded that until the risks were
understood or managed, there seems to be little reason to approve Bt Brinjal release.93

DR. CHAKRABORTY, Ph.D., M.S. Biochemistry, B.S. (Honors in Chemistry), Calcutta University;
Molecular Biologist, presently Principal Scientist and Head of the Gene Regulation Laboratory
in the Council of Scientific and Industrial Research - Indian Institute of Chemical Biology (CSIRIICB); Member, Governing Body and Executive Committee of the sta te council of
Biotechnology, Government of West Bengal and Chairman of the Biotechnology group of the
state council of Science and Technology, Government of West Bengal; Visiting Professor of the
National Institute of Science, Technology and Development (CSIR-NISTAD); citizen of India and
resident of Kolkata, India.
GMO is a classic example of "paradoxes of consequences", where human actions have
unintended consequences, which are in direct opposition to what was intended. The
difference in controlled laboratory condition and standards, and real life open field level micro
and macro-environment pushes the advantage towards the target and non-target living
system, with time. The pest resistance to Bt toxin and development of herbicide tolerance (HT)
in weeds is just a matter of time. The decade long experience in Bt and Ht genes amply proves
this point. If we ignore this now - we are manufacturing a global environmental disaster which will be a crime against humanity. There is no way to recall these GMO from the
environment.
Even the short term benefits of GM agriculture are not scale neutral, or location-independent.
It will help the monopoly agribusiness and the expenses of monopolistic competition or
cooperative organic farming. Hot climate and rich biodiversity is detrimental towards the
effectiveness of Bt constructs, and helpful towards unintended gene flow. Moreover, the
genetic manipulation is no way fail safe or exact. Shotgun techniques are being adapted, aided
by focused laboratory based screen of traits - rather than the host or the full natural product.
The GM labeling is avoided to cover up this major fault.
The tendency to avoid the available risk assessment, and test is very clear in the GM
agribusiness. Before going ahead with spread of this technology, even in a batter form, the
foremost task is to establish rigorous test and assessment procedures. There are excellent
available tools of preteomics, transcriptomics, and metabolomics for detailed compositional
analysis in our hand to do this. Please ask, why they are not being employed? In fact, there is
not a single centre to test GM products on behalf of the corporate GM Agribusiness house.
Thus, low level, long term toxicity of GM foods are yet to be tested. I believe the time has
come to establish a standardization facility to carry out such test facility in any country before
giving permission to GM trial or cultivation.94ChanRoblesVirtualawlibrary
The relevant portions of the "hot-tub" hearing held on November 20, 2012, are herein
reproduced:
Dr. Cario: x x x This is to clarify something with the BT Talong and the BT Talong has its
substance. It is not supposed to be consumed at the moment still under field trial, so it is not
supposed to be eaten at the moment. It has not been released for food nor for feed and so in
the context of a confined field test, it has supposed to have it out in the field in a very
controlled manner and any produce that comes out from that area is supposed to be
destroyed or kept from further safety and analysis only.

Chairperson So, actually, there is no full scientific certainty that it does not cause any harm
pertaining to health?
Dr. Cario: BT Talong per se, has hot been fully evaluated yet that is why it is undergoing trials.
If reporting of the BT toxin in BT Talong is CrylAcc, there are numerous studies that had been
actually published on relative safety of CrylAcc protein and it is actually considered as an
additional protein and the various reviews can be seen in the OECD Digest of risk assessments
on CrylAcc protein. Alternatively, if you are looking at the possibility of harm coming from the
introduced protein as yet, we have not done a full blown assessment of it as of the moment.
But we look at the protein sequence and with a comparison of its sequence with other
sequences in the data basis to see if it is similar to this amino acid sequence of other known
toxins and, so far, I have actually ... in my affidavit, I have actually seen personally that it is not
closely related to any of the known toxins that are found into its system.
Chairperson: So, in effect, we can not really say that BT Talong is perfectly safe for human
consumption?
Dr. Cario: Right now it is not meant to be consumed by human at this point. Let me just
clarify one point. When any GM material is supposed to be introduced for food and for feed
and before it is actually utilized for life skill production, it goes through several steps. The first
step is actually the "lab", laboratory work and it is actually tested in this clean-houses, rolledout confined limited field test and then it goes to butyl abyss of field tests where it is like
generating more and more information. We are still early on in this pathway, so we are only in
the confined field test and, at the moment, the thing is that it is still being tested. The focus is
on its efficacy after doing a preliminary assessment of the possible pathological and ecological
effect, and that is the pathway that has been recommended by so many academics as well as
scientific institutions as well. And, that has been a tract followed by almost all the genetically
modified crops that is being introduced in the market today, but at the moment BT Talong is
not yet a commodity. It is not yet being evaluated as a commodity.
Chairperson: So, no one in this country has yet eaten this BT Talong?
Dr. Cario: No, it has not been eaten, as far as I know. Even in India it has not been consumed
by human beings because it has not been introduced as a commodity.
Chairperson: But what is the ultimate purpose of growing BT Talong? It is not for human
consumption, of course?
Dr. Cario: If it passes the safety assessments. That there is always a peak condition that, if it
would not to be evaluated in a step of the way much like to evaluate any new product that is
coming into the market evaluation, goes on a step-by-step and at least day-to-day basis.
Dr. Davies: Your Honor, may I interject, may I suggest with your permission? I would just like to
make a little bit of explanation.

Chairperson: Proceed.

not?

Dr. Davies: I would like to address "BT" as a compound which is distinct from a plain in
"Talong". First of all, I think of the name BT toxin is very fortunate. It is really a protein. A
protein is an essential constituent of life. It is an essential constituent of our food. In the
human body, and in the body of other animals, this protein is under the same as any other
protein in food. It has no effect on the human body. This has been shown for many, many
years, knowing BT Talong but BT has been a constituent of "maize" in commercial production
for 16 years.

Dr. Cario: There is an initial assessment that is generally done and according to the Codex
Alimentarius of the WHO, the thing that you do at this early stage of development is to
compare the sequence of the protein that is being introduced with published sequence of
allergens, as well as toxicants and toxins. So that has been done. Then you have to look for
instability under heat conditions because there is seldom do we heat grow eggplants, so is it
stable under heating. Is it stable in the presence of digestive juices? And, if the answer is "yes",
there is at least fair certainty, a fair assurance that it is likely to be safe but then you start
thinking of what other component not present in the product, does this. For example, any
product that we consume today has something that is bad for you, otherwise, you will not see
it right now. Otherwise all the different herbivores will be eating it up, right? It will be extinct if
it does not have anything to protect itself and, so, the thing is one, to quantify how much of
that has changed when you lead the genetic modification. So "Talong" has been known to
have Solanine and glycoalkaloids whose level well have to quantify. We have not done that
yet. They have not submitted the data for that and this as secondary metabolize whose
relative concentration will change depending on the environment to which you actually place
the system.

xx xx
Dr. Davies: x x So it has been in corn for 16 years after substantial trials. It has been consumed
by Americans in corn products and by any other people who in[g]est American maize corn
products x x x. There is not a single case of illness or toxicity or allergenicity that can be or that
has been associated with this protein and, therefore, any food containing this protein has been
declared by authorities in all the countries that was mentioned by my colleagues, including the
European Union and the United States x x x to be as sa fe as any food derived from the same
plant species not containing this gene. I hope that explains a little bit about what it is.
Chairperson: Are you aware of a study, Dr. Davies, released on September 20 of this year,
saying that Monsanto's genetically modified corn is linked to cancer?
Dr. Davies: Yes. Are you referring, your Honor, to a publication by a French Scientist named
Gilles-Eric Seralini? I think this is one of the publications by Seralini's group. Dr. Seralini's work
has been refuted by International committees of scientists...
xx xx
Dr. Chakraborty: Your Honor, may I butt in? It is wrong that proteins can not be toxins. Think
about the snake venoms. They are poisons, so whether it is protein or not that is not the
question. So proteins obviously venoms and proteins and enzymes and they are poisons so
protein can be a poison so that is now the point at all to be considered. The second thing is,
yeah, low level toxins long term in[g]estion of this BT toxin in human or in any other animal
have not been tested. So that is true so we do not know direct consumption of this, because
notice have been turned down, that is the objective fact. The third point is about the
"American Corn", and if I can give you such anecdotes, "American GM Corn" are not labelled,
how do you know that? What is its effect? What is its toxicity? And, obviously, there are more
than a hundred of papers showing and published in very good journals. I can give many
references which have shown the detrimental effect of BT Toxin.
xx xx
Chairperson: But before having this BT talong scheduled and allowed for field testing, is it not
proper that it should be first determined whether this food product is really safe for eating or

Dr. Chakraborty: x x x In india, we have a very bad experience x x x in location field trial with
the BT Cotton. You known that BT Cotton was introduced in India through the back door black
market entry. During the field trial, some of those seeds were taken out and given to the
farmers for commercial cultivation to black market. Monsanto goes well,
Monsanto's BT Cotton, like Monsanto, did not sue now apparently sue the company and they
compelled the government that farmers wanted those things and there was high ... how they
pressurized the government. Now, in case of BT cotton is one thing, but BT Eggplant is
completely a different thing. That is why [the] Supreme Court in India has taken a very strong
stand and, now, the parliamentary committee in India. The Supreme Court has also taken
steps stand with the field trial. The first thing in field trial we had to see that whether there is a
definite need of this kind of intervention, because the eggplant is a very common vegetable in
this part of the world. There are so many hundreds of varieties here, these are the origins of
these varieties of this kind of vegetable. It is cheap. It is available everyday. So why you go on
changing if there is no crisis in cultivating the eggplants at present. Therefore, when you give it
to this patented seeds technology, its prices will increase, lot of restrictions had to be deal. So,
who will consume this high price eggplant. Many will be exported, that was why the
proponents are looking into it. But, basically, that is the thing that in case of BT Brinjal,
neighbor partisan is being given. There is a moratorium in India from the Supreme Court and
from the government side on field trial of BT Brinjal. Now, if x x x the BT Eggplant is being
taken to the Philippines, we guess, to get in as a bypass, and who will guarantee that it will not
go to the farmers?
xx xx
Justice Antonio-Valenzuela: And, I was wondering in the conduct of the tests, the field testing x
x x what would be the effect of the planting .... of the existence of the genetically modified
organism, for example, on insects, on the soil, on the air? And then I was thinking, does this

have this particular protein that result[s] due to the genetic modification? Is it ... how is it
expelled, for example how does it go into the environment? Or, on the other hand, how does it
go inside and out of human system so that does it disintegrate or is it just there forever? I am
very curious, sir. You have to educate me.
Dr. Davies: x x x Okay, the DNA is in every cell of the eggplant and, so, a very small amount to
protein produced by each cell will be this BT protein. It does not get into the environment in
general. A very small amount might be in the pollen or in the leaves that fall to the ground but
it has been shown to be broken down in the soil by organisms so it will not exist in the
environment. The only way that it is going to get into animals or insects is if they eat the fruit
and this is what an insect that the "talong" fruit and shoot borer will be trying to. But, if it eats
it, it reacts with its intestine so that they become toxic to the caterpillar but this is very specific
to the digestive system of the caterpillar. It does not affect bees. It does not affect animals. It
does not affect humans.
xx xx
Dr. Davies: At the scientific level, it gets changed by alkalinity of the insect gut and reacts with
specific receptors of the cells of the walls of the insect gut. But, this is very specific to the gut
of these insects namely the "Lepidoptera" and some "coleoptera" which are the butterflies and
the beetles but it will only affect if they try to eat the plant. Now, you are asking us if what is
the effect on the environment. x x x I would like to cite x x x a recent paper published in the
journal "Nature" x x x the most prestigious scientific journal in the world, x x x published in
"Nature" in June this year and this is the result of a study of "insects" in BT Cotton fields in
China in 17 locations for 14 years of a long period study. And these scientists revolt that they
show a marked increase in the abundance of three types of generalist arthropod predators
(ladywings, lacewings and spiders) and a decrease in abundance of aphid pests associated with
widespread adoption of Bt cotton. And they are referring to China and they conclude that such
crops, x x x BT crops, can promote beneficial control services in agricultural landscapes. And, it
also showed that these effects extend beyond the field. So, essentially x x x they found that
there were more insects than in conventionally grown cotton and the insect diversity was
greater surrounded than being detrimental to an agriculture ecosystem such BTcotton falls
beneficial.
Dr. Chakraborty: May I interject, your Honor. Now he is citing one paper they are. But in
"Nature," there was another news article, "Battlefield". One stream ecologist in United States
itself, in a university, she has studied the effect of growing BT Corn in the field and what is the
effect on the stream ecology, the west water, what is happening to other insects, insects in
which it is getting that BT toxin will not go. Yes, she has found that stream ecology...
xx xx
Dr. Chakraborty: Why was it published in "Nature" when that stream ecologist from Loyola
University Chicago in Illinois published that paper, published that article in PNAS
or Proceedings of the National Academy of Sciences, a prestigious journal? Now, they have to

desert her. She was abused, so her file was taken out. So people started e-mailing, threatening
her. So "Nature" has to publish that. How dirty the field has become so they entitled it
"Battelfield." If anybody produces any evidence that BT Toxin or GM Technology is doing any
harm to the environment then it will be battered by the entire English lobby so there is worst
the situation. But National Academy of Sciences in United States has taken a strong decision
and, in last year, there were six publications that published where strong evidences are being
produced about the environmental and ecological damage cause[d] by this technology. So,
that is the case.
Dr. Davies: Can I respond to that, your Honors?
Dr. Malayang: I think Filipinos should be able to talk also here.
Chairperson: Can we give a chance to Dr. Malayang?
Dr. Malayang: x x x My concern is on the process and participants in vetting the safety of GM
crops, not necessarily the intricacies of the science involved in genetic modification per se
which, I think our international friends, would like to focus on. x x x
One, I am concerned with the fallibility of technology, x x x even if it is much founded on or
produced from the most robust sciences, a technology could fail to be as useful as it was
intended or its use lead to an [unintended harm to humans and the environment. This is so
because science, by nature, as many scientists will agree, is very probabilistic rather than
absolutist. Many cases of common knowledge illustrate this point. May I just refer, for the
Court's notice for, First, the Nuclear Power Plants in Japan x x x. The best science and the best
technology did not necessarily translate to absolute safety.
Second example, the Union Carbide Plant in Bhopal, India. It was among the most advanced
production ton at its time, yet, we know what happened. x x x Union Carbide's [hurry] to set
up a plant to take advantage of a large pesticide market in India to help the country's farmers
led to a massive and deadly safety failure.
The Third example is the green revolution, x x x involves, however, the wide [use] of synthetic
chemicals for fertilizer and pesticides that were [at] the time hailed as wonder technologies.
Many scientists in the world at that time argued for their wider use but they later turned out
to harm people, soils and water. They prove good then bad, so bad that scientists today are
using their ill effects as justification for adopting alternative technologies to get us out of the
synthetic chemical regime in agriculture.
And finally, the most common example would be the unintended effects of medicine. x x x
Medicines are technologies intended to do good but, with even the best science and the
vetting processes using rigid safety and risk assessment methods, they still could cause side
effects entirely undesired and many of which can cause chronic or acute threats to human life.
This includes the use of "DDT" that was used to control lice among soldiers after the II World
War which, after all, proved to be very bad.

x x x I am also concerned with the fragility, fragility of the Philippine environment as the place
and context, the particular place and context of the introduction of BT crops like BT talong. x x
x the Philippines is among the world's biologically rich countries. x x x So, many of our insects
are not even fully known. We do not know how they all behave to influence the transfer of
genetic materials from plants to other plants. We do not fully know what we do not know
about the intricate interactions between plants and between insects and other living things
that define the universe of our healthful and balanced ecology. The universe of our healthful
and balanced ecology certainly go beyond specific crops. I am concerned that, absent a full as
against partial understanding of the intricate web of geneti c flows and interactions among
plants, animals and other living things in our wet and tropical ecosystems, it will require
extraordinary care to tamper with any one element of this swirl of interrelationships. This is
notwithstanding the seeming preponderance of evidence of safety in other countries and
environment that are certainly not the same as ours. x x x we must be extra careful because
the effects might be irreversible. Introducing a genetically modified plant x x x could cause a
string of changes across many plants that, like the green revolution or in the case of medicine
and the two other cases cited above, could turn out and only to be realized much later to be
harmful to humans and the environment more than they were intended to be useful. x x x let
us ensure that we adopt in the country a biosafety vetting protocol that is: (1) sensitive to our
high biodiversity this is a particular condition in the Philippines; and (2) tested for error levels
that are acceptable to or which can be tolerated by our people. My affidavit states a threestage approach to this. x x x the tests that we will be doing is a test process acceptable to all as
well rather than merely concocted or designed by just a few people x x x must be a product of
wider citizens' participation and reflect both scientific and traditional knowledge and cultural
sensitivity of our people. It is in the NBF after all, x x xintroducing BT Talong in the Philippines
must be decided on the grounds of both science and public policy and public policy, in this case,
must involve full public disclosure and participation in accepting both the potential gains and
possible pains of BT Talong. The stakes, both positive and negative, are so high that I
believe BT Talong would require more public scrutiny and wider democratic decision making
beyond the [realm] of science. x x x for the sake of our country and our rich biodiversity x x x
prudence requires that maximum efforts be exerted to ensure its safety beyond the
parameters of science and into the sphere of public policy. For to fail in doing so what might
be highly anticipated to be beneficial may in some twist of failure or precaution and prudence
and failure for due diligence to establish the safety of Bt Talong beyond reasonable doubt,
the BT Talong may turn out to be harmful after all. This we certainly do not want to do. I
submit these views to the Court.
xx xx
Dr. Davies: x x x another thing I would like to point out to the Court is, if you come into a
market in the Philippines and you see nice Talong, it has probably been treated with various
insecticides. So, there has been insecticide spray on your tips in your crops which are going to
be harm on your farmers, your farmer's children, the insect populations and also dangerous to
the consumers as well. By contrast, Bt Talong, if it is adopted, the BT has been shown to be
beneficial to the insects and the environment and also has been shown not to be toxic in food.

Therefore, we are changing a highly toxic chemical application for a much more benign
modern technique that is beneficial to the environment and beneficial to the consumers. That
is my comment with the views just made by my Filipino colleagues, your Honors.
Dr. Malayang: x x x You know, in ecology and, I am sure you are aware of this, an expansion of
anyone population or a reduction of that population it would still be both not beneficial to the
healthful and balanced ecological health of the ecosystem. So to say that because the
population of insects are exploded and the diversity of insects exploded as a result of this
particular intervention is not necessarily good. That is my first point. The second one, you
mentioned x x x the "talong" is laden with pesticide. The same pesticide were advised by
scientists from the USAID before for us to use in this country because this is how to expand our
production of food. This was part of the green revolution, the systemic use of pesticides and
fertilizer. Now, of course, they were misused, I can guarantee that but, again, if that be the
case, in the case of pesticide why can it not be in the case of BT that it can also be misused? x x
x we are talking here not of the science or of the technology but on the policy aspect of the
adoption of the technology. As I said, I am talking about the bakery not of a baked-bread.
Dr. Saturnina Halos: Well, the use of pesticide in the eggplant, right now, is very much abused.
x x x In terms of the use of Bt Talong, then, that kind of misuse is not going to happen x x x.
Now, in the Philippines, we have a very strict highly monitored field testing and I think Dr.
Malayang knows about that because he was one of those who prepared the guidelines for the
field testing. So that is not going to happen, it is a very strict regulatory system. We are known
for that, actually, and...
xx xx
Dr. Saturnina Halos: No, no. It does not happen because we have a risk management plan x x x.
xx xx
Dr. Halos: x x x As far as do we know what is happening after we have given approval, yes, we
are monitoring. We are monitoring as far as BT corn is concerned. We are monitoring,
continuously monitoring, not only for the beneficial insects but also the effects that is
continuing, we are also continuing to monitor the weeds, weed population. In weed we decide
to spray...
Dr. Malayang: And why is this, ma'am, why are we monitoring? Because they could be
harmful?
Dr. Halos: No we have to know what is happening.
Dr. Malayang: Yes, why? Because if you are sure that they are safe, if you are sure that they
are safe, why monitor?
Dr. Halos: Well, we are going to give you the data for that because you keep on asking, you

know, you asked for a long term and we are going to give you that complete data.
xx xx
Dr. Medina: I would like to raise several issues because I feel they are misleading sometimes.
Dr. Davies mentioned that the BT protein is a protein, therefore, it is safe. Are you sure that all
proteins are safe, Dr. Davies? Are you aware of anti-nutrients and allergens and other kinds of
protein x x x it is a misleading generalization. Secondly, I would like to say also that, when you
say that BT crops is beneficial to insect population but, how about humans? But, let me tell
and inform the Honorable Justices also that, in agriculture, there can be, the pests are there to
reduce the yield. There are also diseases so, that this Bt is only controlling one kind of pest
and, in my monitoring of BT corn as an example to this 2 years after the commercialization in
2003, at first planting in 2003, the corn is attacked by about a dozen insect pests and six major
diseases. The Bt corn was attacked a "stem rot", a fungal disease. And, in this case in eggplant,
there are many fungal diseases, "phomopsis" x x x So in that case it is not field safe that you
will not be using pesticide anymore with BT eggplant. When you use the BTeggplant, assuming
that there is no more insect pests x x x There are many other methods of control and,
therefore, do not assume that you do not use pesticide therefore, BT is the only solution. That is
also a risky and wrong generalization or statement, x x x Dr. Halos x x x says that field tests are
safe. I intend to disagree with that. Safe to what? Especially to contamination. If I may use this
picture of the field testing of the Bt eggplant x x x it was encircled with cyclone wire with a
diameter of something like approximately 10 cm. by 7 cm. hole. While bees that can pollinate
that, the size is about 1 cm. in length and .5 cm. in diameter of the insect. The bees and, in that
case, they can easily get in and get out and when they settle into the flowers and snip nectars
and the fall of the pollen then they can bring out the pollen to contaminate outside that. In
fact, even assuming that the fence is very small in size of the mess, the holes, still the insects
can fly above that fence because the fence is only about 5 feet in height. So, in that case it is
not safe. Some arguments say that "well the pollen will be dead" but, according to this
technical manual of the Training Workshop On Data Collection for Researchers And
Collaborators of Multi-Location Trials of Fruit and Shoot Borers Resistant Eggplant, that is
the Bt Eggplant produced by the Institute of Plant Breeding in UPLB who is one of the main
researchers the datas, here say according to "Rasco", cited by Dr. Narciso, is that the pollen
can live 8 to 10 days pollenby ability at 20 to 22 degrees centigrade, with a relative humidity of
50 to 55. x x x Meaning to say, that pollen can survive. This can fly as fast as something like 60
kilometers per hours so it just take may be 3 minutes and it can travel 4 kilometers and 4
kilometers is the effective flying distance of a bee in their normal foraging.
xx xx
Dr. Medina: x x x There is no data on the contamination so how come they argue, how can
they conclude that it is safe when they have not monitored any potential pollen flow by insect
mitigated or insect mediated flow pollen? So, in that case, the conclusion or the statement is
really beyond what their data may be is if their data is about safety.
xx xx

Dr. Ebora: x x x x
x x x I hope that we will be able to look at the experimental design and you will see that all the
things are properly addressed, our risk assessment was done step by step, x x x I beg to
disagree with my friend Dr. Medina because it i s becoming ... we are confusing 2 things. We
are not referring to contained trial. We are referring to confined field trial and in the design of
this particular experiment, you have yourBT eggplant, your non-BT eggplant so that you can
compare the performance with the 2 crops. And, on design, you have 5 rows of
plant BTeggplants that will serve as a pollen trap. When we say pollen trap is that it just open
the pollen from the transgenic. It is going to be trapped by those plants, 5 rows, and then,
after that, you have a space of 200 meters surrounding the field which is the isolation distance.
That means no eggplant should be present in that particular distance because that is the
isolation distance that is found to be safe, x x x we know that Bt protein is very specific x x x
effective only against caterpillar x x x if they are eaten by other organism, they are not affected
because it is very specific. The gut of the larva is very alkaline while the gut of other insects is
likely acidic and, in that case, it does not have any harmful effect, x x x So another thing is we
are saying that it seems to be ridiculous that you are saying that honeybee is going to fly from
the fence and the size were even indicated. I would like to indicate that, that is not the
purpose of the fence. It is not to contain the insects. It is to prevent vandalism which is quite,
unfortunately, being done by other groups who are against the technology. x x x We should be
able to have our own space, our own time, considering the given regulation. Follow them. But
our experimentation not be destroyed because it is only then that we will be able to get the
valuable data that is needed for an informed decision. Without that we will not be able to
proceed and I hope we can discuss this based on the merits of the field trial, not from any
other concern because the writ ofkalikasan is about the effect of field trial in the environment.
Dr. Medina: Mr. Justice, can I give this immediate counteract to the one statement of Dr.
[Ebora]? He said that the "CrylAcc" is specific to caterpillars and, in fact, only some kinds of
caterpillar, some species, if you can read by chemical and by physical research
communications this is Volume 271, pages 54-58, authored by Vasquez Pardonnet, published
in 2000, publication under letter (b), "CrylAcc protoxin" binds to the mucosal surface of the
mouse small intestine. Small intestine ay mammal po iyan so, meaning, it is a proxy animal for
safety [testing] to humans because we are also mammals so, the mice are usually the
mammals 12 years ago, the data has been already there that there is binding site, therefore it
is not only specific to insects but also to mammals. x x x he is saying that, by working on the
natural BT is the same as the transformed BT it is not true because the natural BT has 1155
"base pairs" of nucleic acids. And the transformed GM Crop contains a fragment of
that BT gene which is only half of that. And the mechanism, by the way, x x x the natural toxin
is broken into smaller pieces inside the intestine of the insects because it is alkaline in terms of
its system "ph" and for humans acidic. So it does not work. But,because the transformed BT is
already half, almost half of the normal or natural[ly] occurring BT protein, it is already
activated and, in that case, that is the reason why there is a test and immediate effect to noninsect, meaning, to mammal, so that is the explanation of scientist doing studies on that
aspect.

x x xx

Dr. Halos: Well, the price is dictated by the market.

Dr. Chakraborty: The scientists have 3 problems: One, the sparks, we have a tunnel vision; the
second, fear vision; x x x I will give some example. Yes, BTtoxin, was it really good biological
control agent? But it is a completely different gene when you produce it into an edible plant
inside genetically. So, these are 2 different things. What will happen? We are scared that the
efficacy, the use of BT toxin as a spray, as biological control agent, will be vanished because
now there will be resistance against those in BT toxin, x x x resistance is coming very quickly,
just like antibiotic resistance, x x x The second thing, I have asked many plant biologists this
simple question, simple honest question. Do you know any plant that can kill a bee or a moth?
No! There is no way, why? Because those are the "pollinators". Plant never kills a bee or a
moth that goes against nature, x x x So, nature, for thousands of years, farmers help select or
adopt edible non-toxic plants. And, now, with the high science we are converting them, nontoxic edible plant into a toxic plant. So not onl y toxic for the human, for the root
microorganisms, x x x Those eggplants are not only for humans to consume. So human effect,
we do not know but what will be the effect? Who will mind the effect? Is it the animal which
goes through it? x x x in India, x x x farmers x x x while growing BT cotton x x x the leaves and
other they use to attract animals to eat. x x x they found suddenly one thing that the BT cotton
plants are not touched by those buffalos, those cows, those [boars], but they can distinguish
which is BT and non-BT. x x x and when their animals started dying in some cases, they always
blame, it is this animal which has eaten that BT? x x x these are [going] against nature. Only
few edible seed plants are there and we are converting one safest plant into a poisonous and
toxic plant and what is the effect on the root microorganisms on the degrading animals and
other? We do not know. That hard thing is the tunnel vision, the confined field trial, x x x why
implement this confined field trial? Is this safe? Why do they have to do this x x x these things
do good for a normal hybrid that is something but for the gene concept we cannot follow the
same separation rules, same rules? So those are used, those separation distincts, those
parameters are used not for the gene. So, which is the safe field trial protocol for the gene
plants? We do not know. So there goes against [the] writ ofkalikasan.

Dr.Malayang: That is precisely the point.

xx xx

Dr. Halos: Yes.

Dr. Malayang: x x x I am just bringing, hopefully to the attention of the Court, that, when you
talk of a technology such as GM Com or GM Talong affecting market there is also not only the
regulatory but economic regime that is attendant to it that makes adjustments. So it may not
be harmful to humans because we will not come out when we ea t it but it might be harmful to
the economy of a particular agricultural crop. x x x
xx xx
Dr. Ebora: x x x there are a lot of local studies being conducted now by entomologists from
[UPLB] and those are independent studies. And, precisely, this is to determine the effect on
natural enemies and the different insects x x x and some of those are already available, x x x
you will be able to protect the environment only if you know how to have a proper
information in making the decision. So, again, I am saying that, in field trial, you will be
generating a lot of information that you will be able to use in making a wise decision and
informed decision.
x x x I would like to correct the impression lodged by the statement of Dr. Chakraborty
regarding butterflies and moths. Because they are not affected by BT because they are adult
insects. The only one that is affected are actually the larva, not even the pupa. So, we would
like that to be clear because it might create confusion.
The other thing in resistance, x x x even conventionally bred plant [loses] resistance after
sometime and that is the reason why we have a continuous breeding program. So, it is a
natural mechanism by an organism as mode of ad[a]potation. x x x are you telling us that we
are going to stop our breeding work because, anyway, they are going to develop resistance. I
think it is a wrong message x x x.

Justice Antonio-Valenzuela: How much is the increase in crop yield? x x x

Dr. Halos: x x x The average increase yield is about 24% and that is for corn. And this data is
actually taken by our own Filipino scientists, Dr. Lluroge and Dr. Gonzales.
xx xx
Dr. Malayang: x x x my question is for Ma'am Nina. I have not been up to date lately on the
production of corn so, you mean to say that corn production in the country has gone up and,
because of that, you are saying that 24% and the income of farmers had gone up as well? Do
you mean to say that the price of com had also gone up as a result of the increase i n the
volume of com production in the Philippines?

The other thing is in terms of the study cited by Dr. Medina regarding the "binding." In
toxicology, you can have the effect if you have, for example, the insects, you have a receptor.
The toxin will bind into the receptor. Toxin has to fall and then the toxin has re-insert into the
membrane. If you eliminate one of those steps you do not have any toxicity. So, that means
binding by itself will not be toxicity. It is a wrong impression that, since you have binding, there
will be toxicity. It is simply wrong because, the actuality that it should bind, it should fall then,
it should insert, and it is a very common x x x. To say that binding is equivalent to toxicity is
simply not true.
The other one is natural BT toxin and activated toxin. When you were saying protoxin, protoxin
is basically the entire crystal protein. If it is already inside the gut of the insect it has to be
clipped by the purchase coming from the gut and you have it activated and you have the toxin.

So what you have in plant is already the toxin since the anther and the toxin, and the toxin in
microorganisms, the anther which are already clipped by a purchase are the same. So, to say
that they are different is actually wrong. You are comparing protoxin and toxin.

violated such right. Because that is the requirement for applying or not applying the
precautionary principle, x x x
Dr. Cario: Yes. The answer to that is we have not violated, you know, the right of the people...

x x x regarding the protein, x x x do you know a lot of proteins of another characteristics and
that is why you have to characterize them and you have to separate the protein that are
causing problem and protein that are not causing problem. That is why you have allergen and,
as explained by Dr. Cario, you have to check the sequence. x x x
xx xx
Dr. Chakraborty: x x x the field trial wanted to basically go to the protocol. This is the efficacy,
the efficiency of the production not that much into the safety. You have to look into it carefully
that how much will get this efficacy, not the safety to that extent x x x. Second point x x x there
is this already mentioned that European Union there is no consensus, x x x they have published
and submitted the systemic list of genetically modified crop need for new approach in risk
assessment. So that is what is needed. There is another article, how does scientific risk
assessment of GM crop fit within wider risk analysis, x x x This is genetic engineering. The
production process is very precise in selecting the inserted gene but not in its enhancement, x
x x they are never looking into it. The second thing, they do not look into that from the
laboratory condition to what is the real life situation. They do not take that into account x x x
so this assessment protocol has to be modified or changed, x x x in the IAASTD or International
Assessment of Agricultural Knowledge, Science and Technology for Development. There is a
supreme body, so many nations, so many experts, scientists x x x. Only sustainable agricultural
practice and that is the only alternative. This GM technology is not going to help them x x x In
my country also, when the BT toxin evaluation was there, everybody was telling that this is
pro-poor, this is scale neutral so, everybody will be benefitted by that. So, we started
questioning, x x x "What are the actual economic analysis indeed? Just show me". Then, they
come up with an answer. Scale neutral means that even small farmers initially
wantedBT cotton and big farmers also wanted BT cotton. They are partisans. It is not the
economic benefit because, economically, it is not going to be beneficial so it is very much scale
dependent its benefit. So, only the big farmers, large farmers and x x x the vegetable field you
never can give separation. Chances you never can give refuge. The 1/5 of the land given for
growing pests so that you cannot do. So it cannot help technology. They have developed this
technology for partisan large scale farming to completely automated for BT technology where
no label will be there. But the failed experiments, the contracts whose patent will be over
within 2-3 years, they are testing them in our country. So that is the bottom line.
xx xx
Chairperson: Let us put, probably, a close to this hot tub proceeding now.
The issue that the Court is really interested to resolve is whether or not the conduct of the
field trial of BT Talong by the respondents has violated or has threatened to violate the right of
the people to a balanced and healthful ecology. Is there absolute certainty that it has not so

Chairperson: But there is no absolute certainty?

Dr. Cario: Well, quite certain, your Honor, because we have placed all the necessary
measures and they did not show us, you know, there is no evidence of harm that has been
shown to this Court. There is no evidence at all.
Chairperson: That is your opinion.95ChanRoblesVirtualawlibrary

As shown by the foregoing, the hot tub hearing has not yielded any consensus on the points of
contention between the expert witnesses, i.e., the safety ofBt talong to humans and the
environment. Evidently, their opinions are based on contrasting findings in hundreds of
scientific studies conducted from the time Bt technology was deployed in crop farming. These
divergent views of local scientists reflect the continuing international debate on GMOs and the
varying degrees of acceptance of GM technology by states especially the developed countries
(USA, EU, Japan, China, Australia, etc.).
Before proceeding to the current state of global GMO research, we briefly address the strong
objection of petitioners to the CA's reliance on the research conducted by Prof. Seralini, the
French scientist whose study was published in September 2012 in Food and Chemical
Toxicology, which was criticized as a "controversial feeding study." Seralini studied rats
consuming Monsanto's Roundup Ready treated corn for two years (using the same kind of rats
prone to tumors used by Monsanto in obtaining original approval for its product and the same
methodologies, but did it for 2 years which is longer than the 90-day experiment period done
by Monsanto). The rats formed massive cancerous tumors. All three test groups of rats, with
10 rats in each group, died more frequently, suffered from liver problems, and had a
pronounced number of tumors specifically with grotesque mammary and testicular tumors. 96
Seralini's findings created an uproar and the study was expunged from the publication in
November 2013 even though the Editor-in-Chief found no evidence of fraud or intentional
misrepresentation of the data. Seralini stood by his work and further conducted similar
laboratory experiments. Critics faulted the experimental method, saying the number of rats
studied was too small and their diet was skewed when compared with their natural food
intake. But over 300 scientists condemned the retraction, they said that the retraction lacked
scientific integrity and requested to reinstate the study. Last June 2014, Seralini's controversial
study was republished and has passed a third peer review arranged by the journal that is
republishing the study,Environmental Sciences Europe. The republished version contains extra
material addressing criticisms of the original publication and the raw data underlying the
study's findings, and accompanied by a separate commentary by Prof. Seralini's team
describing the lobbying efforts of GMO crop supporters to force the editor of the Food and

Chemical Toxicology to retract the original publication.97

effects of processing/cooking;
The aforesaid incident serves to underscore the crucial role of scientists in providing relevant
information for effective regulation of GMOs. There can be no argument that "[s]ince scientific
advice plays a key role in GMO regulations, scientists have a responsibility to address and
communicate uncertainty to policy makers and the public." 98
GMOs: The Global Debate
The uncertainties generated by conflicting scientific findings or limited research is not
diminished by extensive use at present of GM technology in agriculture. The global area of GM
crops has reached over 175 million hectares in 2013, more than a hundredfold increase from
1.7 million hectares in 1996.99 However, the worldwide debate on safety issues involving GM
foods continues.
It has been pointed out that the crux of the controversy surrounding GMOs lies in the very
nature of the technology itself. The process of combining inter-species genes, which is called
recombinant DNA technology, does not have the checks and balances that are imposed by
nature in traditional breeding. Because of this there is a risk of genetic instability. This means
that no one can make any accurate predictions about the long-term effects of GMOs on
human beings and the environment. Extensive testing in this regard is either very expensive or
impractical, and there is still a great deal about the process that scientists do not
understand.100
The basic concepts for the safety assessment of foods derived from GMOs have been
developed in close collaboration under the auspices of the Organization for Economic Cooperation and Development (OECD) and the United Nations World Health Organization (WHO)
and Food and Agricultural Organization (FAO). The OECD's group of experts on biosafety
recommended conducting the safety assessment of a GM food on case-by-case basis through
comparison to an existing food with a long history of safe use. Thus, the concept of substantial
equivalence was developed that is widely used by national and international agencies,
including the US Food and Drug Administration (FDA), the WHO, OECD and the FAO. 101
"Substantial equivalence embodies the concept that if a new food or food component is found
to be substantially equivalent to an existing food or food component, it can be treated in the
same manner with respect to safety (i.e., the food or food component can be concluded to be
as safe as the conventional food or food component)." 102 The safety assessment of a
genetically modified food is directed by the results of a comparison between the genetically
modified food and its conventional counterpart. It follows a stepwise process aided by a series
of structured questions. Factors taken into account in the safety assessment include:
identity;
source;
composition;

transformation process;
the recombinant DNA (e.g. stability of insertion, potential for gene transfer);
protein expression product of the novel DNA:
effects on function;
potential toxicity;
potential allergenicity;
possible secondary effects from gene expression or the disruption of the host DNA or
metabolic pathways, including composition of critical macro, micro-nutrients, anti-nutrients,
endogenous toxicants, allergens, and physiologically active substances; and,
potential intake and dietary impact of the introduction of the genetically modified
food.103ChanRoblesVirtualawlibrary
The above factors are particularly pertinent to the assessment of foods derived from
genetically modified plants.104 However, the concept of substantial equivalence as the starting
point of risk assessment was criticized for being "unscientific and arbitrary" and "intentionally
vague and ill-defined to be as flexible, malleable, and open to interpretation as possible." It is
likewise argued that "comparisons are designed to conceal significant changes resulting from
genetic modifications," "the principle is weak and misleading even when it does not apply,
effectively giving producers carte blanche", and that there is insufficiency of background
information for assessing substantial equivalence. A paper presented at a WHO workshop
pointed out that the main difficulty associated with the biosafety assessment of transgenic
crops is the unpredictable nature of transformation. This unpredictability raises the concern
that transgenic plants will behave in an inconsistent manner when grown commercially. 105
The method of testing GM foods was further described as inadequate, as currently the testing
procedures consist almost exclusively of specific chemical and biochemical analytical
procedures designed to quantitate a specific nutrient or a specific toxin or allergen. It was
noted that in actual practice, the investigator compares only selected characteristics of the
genetically engineered food to those of its non-genetically engineered counterpart. These
testing schemes are viewed as completely incapable of detecting unsuspected or
unanticipated health risks that are generated by the process of genetic engineering itself.
Hence, clinical tests are recommended because only such tests have the broad specificity and
relevance to human physiology needed to detect the wide range of allergens and toxins that
might result from unexpected side-effects of the genetic engineering process.106
In another review article, it was pointed out that since a genetic modification is aimed at
introducing new traits into organisms, the result will always be a different composition of
genes and proteins. The most reasonable interpretation therefore is that a food derived from a

GMO is considered substantially equivalent to its traditional counterpart if the genetic

modification has not resulted in intended or unintended alterations in the composition of
relevant nutrients and inherent toxicants of the organism, and that the new genes and
proteins have no adverse impact on the dietary value of the food and do not therefore pose
any harm to the consumer or the environment. It was thus concluded that establishing
substantial equivalence is not a safety assessment in itself, but is a pragmatic tool to analyze
the safety of a new food, and hence in the testing of new foods, the latest scientific methods
have to be used. All conceivable efforts to protect consumers from health risks should thus be
made, and at the same time, consumers should be adequately informed about the real extent
of risks and hazards.107

The Union of Concerned Scientists' 2009 report Failure to Yield, based on published peerreviewed studies conducted by academic scientists using adequate controls, concluded that
genetically engineered herbicide tolerant soybeans and herbicide-tolerant corn has not
increased yields while insect-resistant corn has only marginally improved yields. Traditional
breeding outperforms genetic engineering hands down.

The GMO global debate has so intensified that each side has accused the other camp of
mounting "paid advocacy" and criticizing studies adverse to their res pective positions as
flawed or unscientific. Both the agri -business industry, and groups opposed to GMOs including
the organic farming industry, had utilized enormous resources and funds for lobbying and
media campaigns locally and internationally.

Bt cotton was overrun by pests in Indonesia and China. In South Africa, farmers faced pest
problems and no increase in yield. The 100,000 hectares planted in 1998 dropped 80% to
22,500 by 2002. As of 2004, 85% of the original Bt cotton farmers had given up while those
remaining had to be subsidized by the government. Similarly in the US, Bt cotton yields are not
necessarily consistent or more profitable.109ChanRoblesVirtualawlibrary
GM technology is thus seen as a failure in terms of addressing food security; rather, it supports
corporate control and impedes common persons' access to adequate food. The root cause of
hunger is not a lack of food, GM critics say, but a lack of access to food. The poor lack money
to buy food and lack of land on which to grow it. It is essential to follow sustainable traditional
farming practices that keeps food production in the hands of small-scale farmers, thereby
reducing corporate control.110

What appears to be highlighted in the promotion of GM crop production is the marked

reduction in the use of harmful chemical pesticides.108 The resulting increase in crop yields
grown on relatively small parcels of land is also regarded as a solution to the problem of
feeding a fast growing world population. Proponents of GM biotechnology insist that GM
foods are safe to humans and the environment based on scientific studies. On the other hand,
anti-GM activists disseminate adverse results of recent studies confirming the health and
environmental hazards of genetically engineered crop farming. Also, some countries have
maintained a firm stance against genetically engineered crops or GM foods, such as France and
Austria. Over the years, however, accumulated evidence of the dangers of GMOs, as well as
unrealized socio-economic benefits, has been increasingly recognized by the scientific
community.
That GE farming increases crop yield has been debunked by new studies proving the contrary.
In the article, "GM Crops Do Not Increase Yield Potential," the Institute for Responsible
Technology cited reports from actual field studies in different countries revealing downward
figures for Bt crops, as summarized below:
Bt corn took longer to reach maturity and produced up to 12% lower yields than non-GM
counterparts.

In developing countries, crop failure can have severe consequences as illustrated in India,
where a large number of cotton farmers, unable to pay back high interest loans, have
committed suicide. Several investigations have implicated the unreliable performance
of Btcotton as a major contributor.

As regards the existing uncertainties of potential long-term effects of the release into the
environment of GMOs, the BEETLE (Biological and Ecological Evaluation towards Long-term
Effects) study of 2009,111 made for the European Commission, analyzed more than 700
scientific publications from all over the world about GMOs and their potential effects on
environment including biodiversity, and received contributions to online surveys from 100 to
167 invited environmental experts. This study declared the following uncertainties:
increased fitness of GM plants;
outbreeding depression after hybridization with wild relatives;
outcrossing between related species and the fate of a transferred GM trait;
altered flower phenology;

Evidence for the "yield drag" of Roundup Ready soybeans has been known for over a decade
- with the disruptive effect of the GM transformation process accounting for approximately
half the drop in yield.

altered fecundity, increasing seed (gene) flow;

increased frequency of horizontal gene flow;

Based on a comprehensive evaluation of yield since the introduction of commercial GM

crops, the International Assessment of Agricultural Knowledge, Science and Technology
(IAASTD) noted that GM crop yields were "highly variable" and in some cases, "yields
declined".

resistance development of pests;

effects on non-target organisms;

 effects on non-target organisms due to altered nutritional composition of the GM plant;

effects on non-target organisms due to accumulation of toxic compounds;
effects on rhizo sphere microbiota;
effects on symbiotic non-target organisms;
changes in soil functions caused by GM traits;
effects on biological control;
altered use of agrochemicals;
indirect changes in susceptibility of crops against pathogens;
adverse effects on agro-biodiversity;
indirect effects in fertilizer use;

such as FAO/WHO and Society of Toxicology, a growing number of independent scientists have
spoken strongly against such generalizations from limited research mostly sponsored by
biotech companies.
In 1999, the Open Letter from World Scientists to All Governments signed by 815 scientists
from 82 countries expressed that they are extremely concerned about the hazards of GMOs to
biodiversity, food safety, human and animal health, and demanded a moratorium on
environmental releases in accordance with the precautionary principle. They are opposed to
GM crops that will intensify corporate monopoly, exacerbate inequality and prevent the
essential shift to sustainable agriculture that can provide food security and health around the
world, and called a ban on patents of life forms and living processes which threaten food
security, sanction biopiracy of indigenous knowledge and genetic resources and violate basic
human rights and dignity.115
On May 10, 2003, dozens of prominent scientists from various disciplines banded together a s
an Independent Science Panel on GM at a public conference in London. On June 15, 2003, they
released a Final Report116 as their contribution to the National GM Debate in UK. In a
summary117 of the final report, these scientists declared the following:
The Case for a GM-Free Sustainable World - A Summary
Why GM-Free?

potential changes in landscape structure;

1. GM crops failed to deliver promised benefits
increased production of greenhouse gases;
o No increase in yields or significant reduction in herbicide and pesticide use
increased mineral nutrient erosion and fertilizer leaching;
o United States lost an estimated $12 billion over GM crops amid worldwide rejection
altered chemical attributes of soil fraction;
o Massive crop failures of up to 100% reported in India
emerging of stacked events;
the necessity of regional differentiation of risk assessments.112ChanRoblesVirtualawlibrary
A critical observation was made on the argument that there is not enough evidence to reject
the hypothesis that GMO and GM food is safe. The fact emphasized was that experiments
designed to clarify potential adverse effects on health or the environment are nearly absent in
peer-reviewed journals. Scientific uncertainty, omitted research areas, and lack of basic
knowledge crucial to risk assessments have become apparent. The present uncertainty
warrants further research and it has been demonstrated that there is a risk of bias relying on
hypotheses that dominate mainstream science. There is therefore a need for independent
research that is without prejudice and unbiased by economic and professional interests.113 In
another article it was noted that the clinical trials carried out to ensure that negative
externalities do not affect humans and the environment are conducted by the same private
firms that created the products, raising conflict of interest concerns.114

o High risk future for agbiotech: "Monsanto could be another disaster waiting to happen for
investors"
2. GM crops posing escalating problems on the farm
o Transgenic lines unstable: "most cases of transgene inactivation never reach the literature"
o Triple herbicide-tolerant volunteers and weeds emerged in North America
o Glyphosate-tolerant weeds plague GM cotton and soya fields, atrazine back in use
o Bt biopesticide traits threatening to create superweeds and bt-resistant pests
3. Extensive transgenic contamination unavoidable

While existing literature on health effects of GM foods indicates that they are generally safe,
and similar conclusions have been drawn by government agencies and scientific organizations

o Extensive transgenic contamination found in maize landraces in remote regions of Mexico

o 32 out of 33 commercial seed stocks found contaminated in Canada

o Pollen remains airborne for hours, and a 35 mile per hour wind speed is unexceptional

o Glufosinate ammonium is linked to neurological, respiratory, gastrointestinal and

haematological toxicities, and birth defects in humans and mammals; also toxic to butterflies
and a number of beneficial insects, to larvae of clams and oysters, Daphniaand some
freshwater fish, especially the rainbow trout; it inhibits beneficial soil bacteria and fungi,
especially those that fix nitrogen.

o There can be no co-existence of GM and non-GM crops

5. GM food raises serious safety concerns

o Glyphosate is the most frequent cause of complaints and poisoning in the UK, and
disturbances to many body functions have been reported after exposures at normal use levels;
glyphosate exposure nearly doubled the risk of late spontaneous abortion, and children born
to users of glyphosate had elevated neurobehavioral defects; glyphosate retards development
of the foetal skeleton in laboratory rats, inhibits the synthesis of steroids, and is genotoxic in
mammals, fish and frogs; field dose exposure of earthworms caused at least 50 percent
mortality and significant intestinal damage among surviving worms; Roundup (Monsanto's
formulation of glyphosate) caused cell division dysfunction that may be linked to human
cancers.

o Despite the paucity of credible studies, existing findings raise serious safety concerns

9. Genetic engineering creates super-viruses

o 'Growth-factor-like' effects in the stomach and small intestine of young rats were attributed
to the transgenic process or the transgenic construct, and may hence be general to all GM food

o The most insidious dangers of genetic engineering are inherent to the process; it greatly
enhances the scope and probability of horizontal gene transfer and recombination, the main
route to creating viruses and bacteria that cause disease epidemics.

4. GM crops not safe

o GM crops have not been proven safe: regulation was fatally flawed from the start
o The principle of 'substantial equivalence', vague and ill defined, gave companies complete
licence in claiming GM products 'substantially equivalent' to non-GM, and hence 'safe'

6. Dangerous gene products are incorporated into food crops

o Bt proteins, incorporated into 25% of all GM crops worldwide, are harmful to many nontarget insects, and some are potent immunogens and allergens for humans and other
mammals
o Food crops are increasingly used to produce pharmaceuticals and drugs, including cytokines
known to suppress the immune system, or linked to dementia, neurotoxicity and mood and
cognitive side effects; vaccines and viral sequences such as the 'spike' protein gene of the pig
coronavirus, in the same family as the SARS virus linked to the current epidemic; and
glycoprotein gene gpl20 of the AIDS virus that could interfere with the immune system and
recombine with viruses and bacteria to generate new and unpredictable pathogens.
7. Terminator crops spread male sterility
o Crops engineered with 'suicide' genes for male sterility, promoted as a means of preventing
the spread of transgenes, actually spread both male sterility and herbicide tolerance traits via
pollen.

o Newer techniques, such as DNA shuffling, allow geneticists to create in a matter of minutes
in the laboratory millions of recombinant viruses that have never existed in billions of years of
evolution
o Disease-causing viruses and bacteria and their genetic material are the predominant
materials and tools of genetic engineering, as much as for the intentional creation of bioweapons.
10. Transgenic DNA in food taken up by bacteria in human gut
o Transgenic DNA from plants has been taken up by bacteria both in the soil and in the gut of
human volunteers; antibiotic resistance marker genes can spread from transgenic food to
pathogenic bacteria, making infections very difficult to treat.
11. Transgenic DNA and cancer
o Transgenic DNA known to survive digestion in the gut and to jump into the genome of
mammalian cells, raising the possibility for triggering cancer

8. Broad-spectrum herbicides highly toxic to humans and other species

o Glufosinate ammonium and glyphosate, used with herbicide tolerant GM crops that
currently account for 75% of all GM crops worldwide, are both systemic metabolic poisons

o Feeding GM products such as maize to animals may carry risks, not just for the animals but
also for human beings consuming the animal products
12. CaMV 35S promoter increases horizontal gene transfer

o Evidence suggests that transgenic constructs with the CaMV 35S promoter could be
especially unstable and prone to horizontal gene transfer and recombination, with all the
attendant hazards: gene mutations due to random insertion, cancer, re-activation of dormant
viruses and generation of new viruses.
13. A history of misrepresentation and suppression of scientific evidence
o There has been a history of misrepresentation and suppression of scientific evidence,
especially on horizontal gene transfer. Key experiments failed to be performed, or were
performed badly and then misrepresented. Many experiments were not followed up, including
investigations on whether the CaMV 35S promoter is responsible for the 'growth-factor-like'
effects observed in young rats fed GM potatoes.
GM crops have failed to deliver the promised benefits and are posing escalating problems on
the farm. Transgenic contamination is now widely acknowledged to be unavoidable, and
hence there can be no co-existence of GM and non-GM agriculture. Most important of all,
GM crops have not been proven safe. On the contrary, sufficient evidence has emerged to
raise serious safety concerns, that if ignored could result in irreversible damage to health
and the environment. GM crops should therefore be firmly rejected now.
The ISP further concluded that "[s]ustainable agricultural practices have proven beneficial in all
aspects relevant to health and the environment. In addition, they bring food security and
social and cultural well being to local communities everywhere. There is an urgent need for a
comprehensive global shift to all forms of sustainable agriculture.118
In 2008, a Global Report119 was released by the International Assessment of Agricultural
Knowledge, Science and Technology for Development (IAASTD), a three-year international
collaborative effort (2005-2007) developed out of a consultative process involving 900
participants and 110 countries from all over the world. This global initiative assessed
agricultural knowledge, science and technology (AKST) in relation to meeting development and
sustainability goals of (1) reducing hunger and poverty; (2) improving nutrition, health and
rural livelihoods; and (3) facilitating social and environmental sustainability. The report
concluded that a radical transformation of the world's food and farming systems - especially
the policies and institutions that affect them - is necessary if we are to overcome converging
economic and environmental crises and feed the world sustainably. It also warned that
technologies such as high-yielding crop varieties, agrochemicals and mechanization have
primarily benefited the better-resourced groups in society and transnational corporations,
rather than the most vulnerable ones. In general, the IAASTD found little evidence to support a
conclusion that modern biotechnologies are well suited to meeting the needs of small-scale
and subsistence farmers, particularly under the increasingly unpredictable environmental and
economic conditions tha they face.120
More recently, in 2013, the European Network of Scientists for Social and Environmental
Responsibility (ENSSER), an international group of more than 90 scientists, academics and
physicians, released a statement that there is no scientific consensus on the safety of GM
foods and crops.121 The statement122is herein reproduced:

10/21/13
Statement: No scientific consensus on GMO safety
As scientists, physicians, academics, and experts from disciplines relevant to the scientific,
legal, social and safety assessment aspects of genetically modified organisms (GMOs), we
strongly reject claims by GM seed developers and some scientists, commentators, and
journalists that there is a "scientific consensus" on GMO safety and that the debate on this
topic is "over".
We feel compelled to issue this statement because the claimed consensus on GMO s afety does
not exist. The claim that it does exist is misleading and misrepresents the currently available
scientific evidence and the broad diversity of opinion among scientists on this issue. Moreover,
the claim encourages a climate of complacency that could lead to a lack of regulatory and
scientific rigour and appropriate caution, potentially endangering the health of humans,
animals, and the environment.
Science and society do not proceed on the basis of a constructed consensus, as current
knowledge is always open to well-founded challenge and disagreement. We endorse the need
for further independent scientific inquiry and informed public discussion on GM product safety
and urge GM proponents to do the same.
Some of our objections to the claim of scientific consensus are listed below.
1. There is no consensus on GM food safety
Regarding the safety of GM crops and foods for human and animal health, a comprehensive
review of animal feeding studies of GM crops found "An equilibrium in the number [of]
research groups suggesting, on the basis of their studies, that a number of varieties of GM
products (mainly maize and soybeans) are as safe and nutritious as the respective
conventional non-GM plant, and those raising still serious concerns". The review also found
that most studies concluding that GM foods were as safe and nutritious as those obtained by
conventional breeding were "performed by biotechnology companies or associates, which are
also responsible [for] commercializing these GM plants".
A separate review of animal feeding studies that is often cited as showing that GM foods are
safe included studies that found significant differences in the GM-fed animals. While the
review authors dismissed these findings as not biologically significant, the interpretation of
these differences is the subject of continuing scientific debate and no consensus exists on the
topic.
Rigorous studies investigating the safety of GM crops and foods would normally involve animal
feeding studies in which one group of animals is fed GM food and another group is fed an
equivalent non-GM diet. Independent studies of this type are rare, but when such studies have
been performed, some have revealed toxic effects or signs of toxicity in the GM-fed animals.
The concerns raised by these studies have not been followed up by targeted research that

could confirm or refute the initial findings.

The lack of scientific consensus on the safety of GM foods and crops is underlined by the
recent research calls of the European Union and the French government to investigate the
long-term health impacts of GM food consumption in the light of uncertainties raised by
animal feeding studies. These official calls imply recognition of the inadequacy of the relevant
existing scientific research protocols. They call into question the claim that existing research
can be deemed conclusive and the scientific debate on biosafety closed.
2. There are no epidemiological studies investigating potential effects of GM food
consumption on human health
It is often claimed that "trillions of GM meals" have been eaten in the US with no ill effects.
However, no epidemiological studies in human populations have been carried out to establish
whether there are any health effects associated with GM food consumption. As GM foods are
not labelled in North America, a major producer and consumer of GM crops, it is scientifically
impossible to trace, let alone study, patterns of consumption and their impacts. Therefore,
claims that GM foods are safe for human health based on the experience of North American
populations have no scientific basis.
3. Claims that scientific and governmental bodies endorse GMO safety are exaggerated or
inaccurate
Claims that there is a consensus among scientific and governmental bodies that GM foods are
safe, or that they are no more risky than non-GM foods, are false.
For instance, an expert panel of the Royal Society of Canada issued a report that was highly
critical of the regulatory system for GM foods and crops in that country. The report dec lared
that it is "scientifically unjustifiable" to presume that GM foods are safe without rigorous
scientific testing and that the "default prediction" for every GM food should be that the
introduction of a new gene will cause "unanticipated changes" in the expression of other
genes, the pattern of proteins produced, and/or metabolic activities. Possible outcomes of
these changes identified in the report included the presence of new or unexpected allergens.
A report by the British Medical Association concluded that with regard to the long-term effects
of GM foods on human health and the environment, "many unanswered questions remain"
and that "safety concerns cannot, as yet, be dismissed completely on the basis of information
currently available". The report called for more research, especially on potential impacts on
human health and the environment.
Moreover, the positions taken by other organizations have frequently been highly qualified,
acknowledging data gaps and potential risks, as well as potential benefits, of GM technology.
For example, a statement by the American Medical Association's Council on Science and Public
Health acknowledged "a small potential for adverse events ... due mainly to horizontal gene
transfer, allergenicity, and toxicity" and recommended that the current voluntary notification

procedure practised in the US prior to market release of GM crops be made mandatory. It

should be noted that even a "small potential for adverse events" may turn out to be
significant, given the widespread exposure of human and animal populations to GM crops.
A statement by the board of directors of the American Association for the Advancement of
Science (AAAS) affirming the safety of GM crops and opposing labelling cannot be assumed to
represent the view of AAAS members as a whole and was challenged in an open letter by a
group of 21 scientists, including many long-standing members of the AAAS. This episode
underlined the lack of consensus among scientists about GMO safety.
4. EU research project does not provide reliable evidence of GM food safety
An EU research project has been cited internationally as providing evidence for GM crop and
food safety. However, the report based on this project, "A Decade of EU-Funded GMO
Research", presents no data that could provide such evidence, from long-term feeding studies
in animals.
Indeed, the project was not designed to test the safety of any single GM food, but to focus on
"the development of safety assessment approaches". Only five published animal feeding
studies are referenced in the SAFOTEST section of the report, which is dedicated to GM food
safety. None of these studies tested a commercialised GM food; none tested the GM food for
long-term effects beyond the subchronic period of 90 days; all found differences in the GM-fed
animals, which in some cases were statistically significant; and none concluded on the safety
of the GM food tested, let alone on the safety of GM foods in general. Therefore the EU
research project provides no evidence for sweeping claims about the safety of any single GM
food or of GM crops in general.
5. List of several hundred studies does not show GM food safety
A frequently cited claim published on an Internet website that several hundred studies
"document the general safety and nutritional wholesomeness of GM foods and feeds" is
misleading. Examination of the studies listed reveals that many do not provide evidence of GM
food safety and, in fact, some provide evidence of a lack of safety. For
example:chanRoblesvirtualLawlibrary
Many of the studies are not toxicological animal feeding studies of the type that can provide
useful information about health effects of GM food consumption. The list includes animal
production studies that examine parameters of interest to the food and a griculture industry,
such as milk yield and weight gain; studies on environmental effects of GM crops; and
analytical studies of the composition or genetic makeup of the crop.
Among the animal feeding studies and reviews of such studies in the list, a s ubstantial
number found toxic effects and signs of toxicity in GM-fed animals compared with controls.
Concerns raised by these studies have not been satisfactorily addressed and the claim that the
body of research shows a consensus over the safety of GM crops and foods is false and

irresponsible.

crops

Many of the studies were conducted over short periods compared with the animal's total
lifespan and cannot detect long-term health effects.

The Cartagena Protocol on Biosafety was negotiated over many years and implemented in
2003. The Cartagena Protocol is an international agreement ratified by 166 governments
worldwide that seeks to protect biological diversity from the risks posed by GM technology. It
embodies the Precautionary Principle in that it allows signatory states to take precautionary
measures to protect themselves against threats of damage from GM crops and foods, even in
case of a lack of scientific certainty.

We conclude that these studies, taken as a whole, are misrepresented on the Internet website
as they do not "document the general safety and nutritional wholesomeness of GM foods and
feeds". Rather, some of the studies give serious cause for concern and should be followed up
by more detailed investigations over an extended period of time.
6. There is no consensus on the environmental risks of GM crops
Environmental risks posed by GM crops include the effects of Bt insecticidal crops on nontarget organisms and effects of the herbicides used in tandem with herbicide-tolerant GM
crops.
As with GM food safety, no scientific consensus exists regarding the environmental risks of GM
crops. A review of environmental risk assessment approaches for GM crops identified
shortcomings in the procedures used and found "no consensus" globally on the methodologies
that should be applied, let alone on standardized testing procedures.
Some reviews of the published data on Bt crops have found that they can have adverse effects
on non-target and beneficial organisms - effects that are widely neglected in regulatory
assessments and by some scientific commentators. Resistance to Bt toxins has emerged in
target pests, and problems with secondary (non-target) pests have been noted, for example,
in Bt cotton in China.
Herbicide-tolerant GM crops have proved equally controversial. Some reviews and individual
studies have associated them with increased herbicide use, the rapid spread of herbicideresistant weeds, and adverse health effects in human and animal populations exposed to
Roundup, the herbicide used on the majority of GM crops.
As with GM food safety, disagreement among scientists on the environmental risks of GM
crops may be correlated with funding sources. A peer-reviewed survey of the views of 62 life
scientists on the environmental risks of GM crops found that funding and disciplinary training
had a significant effect on attitudes. Scientists with industry funding and/or those trained in
molecular biology were very likely to have a positive attitude to GM crops and to hold that
they do not represent any unique risks, while publicly-funded scientists working independently
of GM crop developer companies and/or those trained in ecology were more likely to hold a
"moderately negative" attitude to GM crop safety and to emphasize the uncertainty and
ignorance involved. The review authors concluded, "The strong effects of training and funding
might justify certain institutional changes concerning how we organize science and how we
make public decisions when new technologies are to be evaluated."
7. International agreements show widespread recognition of risks posed by GM foods and

Another international body, the UN's Codex Alimentarius, worked with scientific experts for
seven years to develop international guidelines for the assessment of GM foods and crops,
because of concerns about the risks they pose. These guidelines were adopted by the Codex
Alimentarius Commission, of which over 160 nations are members, including major GM crop
producers such as the United States.
The Cartagena Protocol and Codex share a precautionary approach to GM crops and foods, in
that they agree that genetic engineering differs from conventional breeding and that safety
assessments should be required before GM organisms are used in food or released into the
environment.
These agreements would never have been negotiated, and the implementation processes
elaborating how such safety assessments should be conducted would not currently be
happening, without widespread international recognition of the risks posed by GM crops and
foods and the unresolved state of existing scientific understanding.
Concerns about risks are well -founded, as has been demonstrated by studies on some GM
crops and foods that have shown adverse effects on animal health and non-target organisms,
indicated above. Many of these studies have, in fact, fed into the negotiation and/or
implementation processes of the Cartagena Protocol and Codex. We support the application of
the Precautionary Principle with regard to the release and transboundary movement of GM
crops and foods.
Conclusion
In the scope of this document, we can only highlight a few examples to illustrate that the
totality of scientific research outcomes in the field of GM crop safety is nuanced, complex, often
contradictory or inconclusive, confounded by researchers' choices, assumptions, and funding
sources, and in general, has raised more questions than it has currently answered.
Whether to continue and expand the introduction of GM crops and foods into the human food
and animal feed supply, and whether the identified risks are acceptable or not, are decisions
that involve socioeconomic considerations beyond the scope of a narrow scientific debate and
the currently unresolved biosafety research agendas. These decisions must therefore involve
the broader society. They should, however, be supported by strong scientific evidence on the
long-term safety of GM crops and foods for human and animal health and the environment,

obtained in a manner that is honest, ethical, rigorous, independent, transparent, and

sufficiently diversified to compensate for bias.
Decisions on the future of our food and agriculture should not be based on misleading and
misrepresentative claims that a "scientific consensus" exists on GMO
safety.123ChanRoblesVirtualawlibrary
One of the most serious concerns raised against GM crops is that expressed by one of our
political analysts now serving in Congress, viz:
x x x patented GMO seeds concentrate power in the hands of a few biotech corporations and
marginalize small farmers. As the statement x x x of the 81 members of the World Future
Council put it, "While profitable to the few companies producing them, GMO seeds reinforce a
model of farming that undermines sustainability of cash-poor farmers, who make up most of
the world's hungry. GMO seeds continue farmers' dependency on purchased seed and
chemical inputs. The most dramatic impact of such dependency is in India, where 270,000
farmers, many trapped in debt for buying seeds and chemicals, committed suicide between
1995 and 2012."124ChanRoblesVirtualawlibrary
In sum, current scientific research indicates that the biotech industry has not sufficiently
addressed the uncertainties over the safety of GM foods and crops.
Bt Brinjal Controversy in India
Brinjal (eggplant) is a major crop and a popular component of food diet in India, an important
ingredient in Ayurvedic medicine, and is of special value for the treatment of diabetes and liver
problems. The attempted commercial propagation of Bt brinjal spawned intense debate and
suffered obstacles due to sustained opposition from local scientists, academicians and nongovernment organizations in India.
As in the case of the Philippines, proponents of Bt brinjal in India, believed to be the origin of
eggplant's diversity, said that if the new technology is adopted, decrease in the use of
insecticides, substantial increase in crop yields and greater food availability, can be expected.
But opponents argued, alongside food safety concerns, that there is a potential for toxic
effects on populations of non-target invertebrates, and potential replacement of traditional
landraces as farmers may move towards cultivation of a restricted number of GE forms. In
addition to these issues, there was the additional concern raised over the transfer
of Bt transgenes to non-GE brinjal or its wild relatives, and the consequences for plant
biodiversity.125
Writ petitions were lodged before the Supreme Court of India to stop the release into the
environment of Bt brinjal (Aruna Rodrigues and Ors, etc. vs. Union of India). The Court formed
a Technical Evaluation Committee (TEC) composed of experts nominated by the parties to
undertake a comprehensive evaluation of the feasibility of allowing the open field trials of Bt
brinjal and submit a final report, and in the event the TEC is unable to submit said final report,
it was directed instead to submit an interim report within the period set by the Court on the
following issue: Whether there should or should not be any ban, partial or otherwise, upon
conducting of open field tests of the GMOs? In the event open field trials are permitted, what

protocol should be followed and conditions, if any, that may be imposed by the Court for
implementation of open field trials." The Court also directed that the TEC would be free to
review report or studies authored by national and international scientists if it was necessary.
In its Interim Report dated October 17, 2012, the TEC recommended that, in view of its
findings, all field trials should be stopped until certain conditions have been met. A Final
Report126 was eventually submitted to the Court which noted weaknesses in the conditions
imposed by the regulatory agencies for conduct of field trials, as follows: 1) post-release
monitoring, an important aspect of environmental and health safety (if the GE crop is
consumed as food) is not given adequate attention; 2) the importance of need and socioeconomic impact assessment of GM products as one of the criteria that should be applied in
the evaluation at an early stage; and 3) need for additional tests not currently done such as
long-term feeding studies for assessment of chronic and intergeneration toxicity in small
animals, genomewide expression analysis in the toxicity studies to screen for possible
unintended effects on host physiology. It was recommended that a moratorium on field trials
of herbicide tolerant crops until the issue had been examined by an independent committee,
and also noted that said technology may not be suitable in the Indian socio-economic context
due to possible impact of extensive use of broad spectrum herbicides on the environmental
biodiversity and smaller average farm size. Examination of the safety dossier of Bt
brinjal indicated certain concerns on the data, which had not been addressed in the course of
regulatory testing leading to approval due to lack of full-time qualified personnel for the
purpose. Overall, it was found that the quality of information in several of the applications is
far below what would be expected and required for rigorous evaluation by a regulatory body
and is unlikely to meet international regulatory guidelines.
On the mechanism of CrylAc proteins, the TEC cited studies showing that it is possible under
certain conditions for CrylAc protein to kill insects that lack the cadherin receptor. Also, while
it is generally believed that Cry toxins do not exert an effect on vertebrates as vertebrates lack
the receptor for Cry toxins, two studies (one in mice and the other in cows) have provided
evidence that Cry proteins can bind to mammalian intestinal epithelial cells. The report also
discussed the emergence of resistance in insect pests, health and food safety of Bt transgenics,
and herbicide tolerant crops and their effect on biodiversity and the environment. Specific
recommendations were made to address the foregoing issues and the report concluded that:
The release of a GM crop into its area of origin or diversity has far greater ramifications and
potential for negative impact than for other species. To justify this, there needs to be
extraordinarily compelling reasons and only when other choices are not available. GM crops
that offer incremental advantages or solutions to specific and limited problems are not
sufficient reasons to justify such release. The TEC did not find any such compelling reasons
under the present conditions. The fact is that unlike the situation in 1960s there is no
desperate shortage of food and in fact India is in a reasonably secure position. The TEC
therefore recommends that release of GM crops for which India is a centre of origin or
diversity should not be allowed.127ChanRoblesVirtualawlibrary
In 2010, responding to large-scale opposition to Bt brinjal's introduction in India, former
environment minister Jairam Ramesh placed an indefinite moratorium on its further field

testing. This was done after discussions with scientists, both pro and anti-GM crops, activists
and farmers across the country.
GMO Field Trials in the Philippines
As earlier mentioned, the conduct of field trials for GE plants and crops in our country is
governed primarily by DAO 08-2002 and implemented by the DA through the BPI. Petitioners
EMB, BPI and FPA all maintain there was no unlawful deviation from its provisions and that
respondents so far failed to present evidence to prove their claim that Bt talong field trials
violated environmental laws and rules.
Within the DA-BPI, it is the Scientific and Technical Review Panel (STRP) which, as an advisory
body, was tasked to "evaluate the potential risks of the proposed activity to human health and
the environment based on available scientific and technical information." Under DA Special
Order 241 and 384 (2002) the STRP membership was expanded to include "an independent
pool of experts...tapped by the [BPI] to evaluate the potential risks of the proposed release of
GMOs for field testing, propagation, food, feed to human health and the environment based
on available scientific and technical information."
DAO 08-2002 supplements the existing guidelines on the importation and release into the
environment of products of modern biotechnology by institutionalizing existing operational
arrangements between DA-BPI and the NCBP. Effective July 2003, applications for field test are
received and processed by DA-BPI, but the approval process for projects on contained use
remains under the supervision of NCBP. A mandatory risk assessment of GM plant and plant
products is required prior to importation or release into the environment. Experiments must
first be conducted under contained conditions, then the products are tested in field trials the
product is reviewed for commercial release. Risk assessment is done according to the
principles provided for by the Cartagena Protocol on Biosafety. Risk assessment is sciencebased, carried out on a case by case manner, targets a specific crop and its transformation
event, adopts the concept of substantial equivalence in identifying risk, allows review, and
provides that the absence of scientific information or consensus should not be interpreted to
indicate the absence or presence and level of risk.128
Greenpeace, however, claims there is actually only a committee of three to five members
which conducts the risk assessment, and is aided by an informal group, the DA's Biotech
Advisory Team (BAT), of representatives from government biotech regulatory agencies: BPI,
BAI, FPA, DENR, DOH and DOST. It also assails the government regulatory agencies for their
refusal to open to scrutiny the names and qualifications of those incharge of regulation and
risk assessment, and for allowing the entry and use of all GMO applications requested by
multinational companies.129
It must be stressed that DAO 08-2002 and related DA orders are not the only legal bases for
regulating field trials of GM plants and plant products. EO 514130 establishing the National
Biosafety Framework (NBF) clearly provides that the NBF shall apply to the development,
adoption and implementation ofall biosafety policies, measures and guidelines and in making

biosafety decisions concerning the research, development, handling and use, transboundary
movement, release into the environment and management of regulated articles.131 The
objective of the NBF is to "[e]nhance the decision-making system on the application of
products of modern biotechnology to make it more efficient, predictable, effective, balanced,
culturally appropriate, ethical, transparent and participatory".132 Thus, "the socio-economic,
ethical, and cultural benefit and risks of modern biotechnology to the Philippines and its
citizens, and in particular on small farmers, indigenous peoples, women, small and medium
enterprises and the domestic scientific community, shall be taken into account in
implementing the NBF."133 The NBF also mandates that decisions shall be arrived at in a
transparent and participatory manner, recognizing that biosafety issues are best handled with
the participation of all relevant stakeholders and organizations who shall have appropriate
access to information and the opportunity to participate responsibly and in an accountable
manner in biosafety decision-making process.134
Most important, the NBF requires the use of precaution, as provided in Section 2.6 which
reads:
2.6 Using Precaution. -In accordance with Principle 15 of the Rio Declaration of 1992 and the
relevant provisions of the Cartagena Protocol on Biosafety, in particular Articles 1, 10 (par. 6)
and 11 (par. 8), the precautionary approach shall guide biosafety decisions. The principles and
elements of this approach are hereby implemented through the decision-making system in the
NBF;
The NBF contains general principles and minimum guidelines that the concerned agencies are
expected to follow and which their respective rules and regulations must conform with. In
cases of conflict in applying the principles, the principle of protecting public interest and
welfare shall always prevail, and no provision of the NBF shall be construed as to limit the legal
authority and mandate of heads of departments and agencies to consider the national interest
and public welfare in making biosafety decisions.135
As to the conduct of risk assessment to identify and evaluate the risks to human health and
the environment, these shall be guided by the following:
5.2.1 Principles of Risk Assessment. - The following principles shall be followed when
performing a RA to determine whether a regulated article poses significant risks to human
health and the environment:chanRoblesvirtualLawlibrary
5.2.1.1

The RA shall be carried out in a scientifically sound and transparent manner based on
available scientific and technical information. The expert advice of and guidelines
developed by, relevant international organizations, including intergovernmental
bodies, and regulatory authorities of countries with significant experience in the
regulatory supervision of the regulated article shall be taken into account in the
conduct of risk assessment;

5.2.1.2

Lack of scientific knowledge or scientific consensus shall not be interpreted as

indicating a particular level of risk, an absence of risk, or an acceptable risk;

5.2.1.3

The identified characteristics of a regulated article and its use which have the
potential to pose significant risks to human health and the environment shall be
compared to those presented by the non-modified organism from which it is derived
and its use under the same conditions;

5.2.1.4

The RA shall be carried out case-by-case and on the basis of transformation event.
The required information may vary in nature and level of detail from case to case
depending on the regulated article concerned, its intended use and the receiving
environment; and,

5.2.1.5

If new information on the regulated article and its effects on human health and the
environment becomes available, and such information is relevant and significant, the
RA shall be readdressed to determine whether the risk has changed or whether
there is a need to amend the risk management strategies accordingly.

5.2.2 Risk Assessment Guidelines. - The conduct of RA by concerned departments and

agencies shall be in accordance with the policies and standards on RA issued by the NCBP.
Annex III of the Cartagena Protocol shall also guide RA. As appropriate, such department and
agencies may issue their own respective administrative issuances establishing the appropriate
RA under their particular jurisdictions.
5.3 Role of Environmental Impact Assessment. - The application of the EIA System to biosafety
decisions shall be determined by concerned departments and agencies subject to the
requirements of law and the standards set by the NCBP. Where applicable and under the
coordination of the NCBP, concerned departments and agencies shall issue joint guidelines on
the matter. (Emphasis supplied)
Considering the above minimum requirements under the most comprehensive nati onal
biosafety regulation to date, compliance by the petitioners with DAO 08-2002 is not sufficient.
Notably, Section 7 of the NBF mandates a more transparent, meaningful and participatory
public consultation on the conduct of field trials beyond the posting and publication of notices
and information sheets, consultations with some residents and government officials, and
submission of written comments, provided in DAO 08-2002.
SECTION 7. PUBLIC PARTICIPATION
The concerned government departments and agencies, in developing and adopting biosafety
policies, guidelines and measures and in making biosafety decisions, shall promote, facilitate,

and conduct public awareness, education, meaningful, responsible and accountable

participation. They shall incorporate i nto their respective administrative issuances and
processes best practices and mechanisms on public participation in accordance with the
following guidelines:chanRoblesvirtualLawlibrary
7.1 Scope of Public Participation. - Public participation shall apply to all stages of the
biosafety decision-making process from the time the application is received. For applications
on biotechnology activities related to research and development, limited primarily for
contained use, notice of the filing of such application with the NCBP shall be sufficient, unless
the NCBP deems that public interest and welfare requires otherwise.
7.2 Minimum Requirements of Public Participation. - In conducting public participation
processes, the following minimum requirements shall be followed:chanRoblesvirtualLawlibrary
7.2.1 Notice to all concerned stakeholders, in a language understood by them and through
media to which they have access. Such notice must be adequate, timely, and effective and
posted prominently in public places in the areas affected, and in the case of commercial
releases, in the national print media; in all cases, such notices must be posted electronically in
the internet;
7.2.2 Adequate and reasonable time frames for public participation procedures. Such
procedures should allow relevant stakeholders to understand and analyze the benefits and
risks, consult with independent experts, and make timely interventions. Concerned
departments and agencies shall include in their appropriate rules and regulations specific time
frames for their respective public participation processes, including setting a minimum time
frame as may be appropriate;
7.2.3 Public consultations, as a way to secure wide input into the decisions that are to be made.
These could include formal hearings in certain cases, or solicitation of public comments,
particularly where there is public controversy about the proposed activities. Public
consultations shall encourage exchanges of information between applicants and the public
before the application is acted upon. Dialogue and consensus-building among all stakeholders
shall be encouraged. Concerned departments and agencies shall specify in their appropriate
rules and regulations the stages when public consultations are appropriate, the specific time
frames for such consultations, and the circumstances when formal hearings will be required,
including guidelines to ensure orderly proceedings. The networks of agricultural and fisheries
councils, indigenous peoples and community-based organizations in affected areas shall be
utilized;
7.2.4 Written submissions. Procedures for public participation shall include mechanisms
that allow public participation in writing or through public hearings, as appropriate, and
which allow the submission of any positions, comments, information, analyses or opinions.
Concerned departments and agencies shall include in their appropriate rules and regulations
the stages when and the process to be followed for submitting written comments; and,

7.2.5 Consideration of public concerns in the decision-making phase following consultation and
submission of written comments. Public concerns as reflected through the procedures for
public participation shall be considered in making the decision. The public shall be informed of
the final decision promptly, have access to the decision, and shall be provided with the reasons
and considerations resulting in the decision, upon request.
We find that petitioners simply adhered to the procedures laid down by DAO 08-2002 and no
real effort was made to operationalize the principles of the NBF in the conduct of field testing
of Bt talong. The failure of DAO 08-2002 to accommodate the NBF means that the Department
of Agriculture lacks mechanisms to mandate applicants to comply with international biosafety
protocols. Greenpeace's claim that BPI had approved nearly all of the applications for GMO
field trials is confirmed by the data posted on their website. For these reasons, the DAO 082002 should be declared invalid.

of Bt talong field trials subject of this case and the release of GMOs into the environment in
general. While he initially cited lack of budget and competence as reasons for their inaction, he
later said that an amendment of the law should be made since projects involving GMOs are
not covered by Proclamation No. 2146140. Pertinent portions of his testimony before the CA
are herein quoted:
xx xx
ATTY. SORIANO: Let us go back Mr. Witness to your answer in Question No. 5 regarding the list
under the PEISS law. Granting Mr. Witness that a certain project or undertaking is not
classified as environmentally critical project, how would you know that the BT talong field
testing is not located in an environmentally critical area this time?
ATTY. ACANTILADO: Objection Your Honor, argumentative.

Significantly, while petitioners repeatedly argued that the subject field trials are not covered
by the EIS law, EO 514 clearly mandates that concerned departments and agencies, most
particularly petitioners DENR-EMB, BPI and FPA, make a determination whether the EIS system
should apply to the release of GMOs into the environment and issue joint guidelines on the
matter.
The Philippine EIS System (PEISS) is concerned primarily with assessing the direct and indirect
impacts of a project on the biophysical and human environment and ensuring that these
impacts are addressed by appropriate environmental protection and enhancement measures.
It "aids proponents in incorporating environmental considerations in planning their projects as
well as in determining the environment's impact on their project." There are six stages in the
regular EIA process. The proponent initiates the first three stages while the EMB takes the lead
in the last three stages. Public participation is enlisted in most stages.136
Even without the issuance of EO 514, GMO field testing should have at least been considered
for EIA under existing regulations of petitioner EMB on new and emerging technologies, to wit:
g) Group V (Unclassified Projects): These are the projects not listed in any of the groups,
e.g. projects using new processes/technologies with uncertain impacts. This is an interim
category - unclassified projects will eventually be classified into their appropriate groups after
EMB evaluation.137 (Emphasis supplied)
All government agencies as well as private corporations, firms and entities who intend to
undertake activities or projects which will affect the quality of the environment are required to
prepare a detailed Environmental Impact Statement (EIS) prior to undertaking such
development activity.138 An environmentally critical project (ECP) is considered by the EMB as
"likely to have significant adverse impact that may be sensitive, irreversible and diverse" and
which "include activities that have significant environmental consequences." 139 In this context,
and given the overwhelming scientific attention worldwide on the potential hazards of GMOs
to human health and the environment, their release into the environment through field testing
would definitely fall under the category of ECP.
During the hearing at the CA, Arty. Segui of the EMB was evasive in answering questions on
whether his office undertook the necessary evaluation on the possible environmental impact

HON. J. DICDICAN: Witness may answer.

ATTY. SEGUI: As far as my recollection can serve me, in a reading of the Petition itself,
somewhere along the Petition, petitioners never alleged that the project, the subject matter
rather of this instant petition, is within an environmentally critical project.
ATTY. SORIANO: Your Honor the Witness did not answer the question.
HON. J. DICDICAN: Please answer the question.
ATTY. SEGUI:Personally I have conferred with our personnel from the Environmental Impact
Assessment Division and they intimated to me that the locations of the project, rather of this
subject matter of the instant petition, not within any declared environmentally critical area.
HON. J. BARRIOS:In other words, you are aware of the area where the BT Talong experiments
are being conducted. Is that the premise?
ATTY. SEGUI:Judging from previous discussions we had . . . judging from the Petition, and
showing it to the as I said personnel from Environmental Impact Division at our office, as I said
they intimated to me that it's not within declared environmentally critical area.
HON. J. BARRIOS:That being the case, you did not act further? [You] did not make any further
evaluation, on whether the activity has an environmental impact? Is that the correct
premise?
ATTY. SEGUI: Well Your Honors I may be the Chief of the Legal Division of the EMB, I handle
more of the legal aspects of the Bureau's affairs. But when it comes to highly technical
matters, I have to rely on our technical people especially on environmentally impact
assessment matters.
ATTY. SORIANO:I will just ask him another question Your Honors. So did the Department of

Agriculture Mr. Witness coordinate with your Office with regard the field testing of BT Talong?

HON. J. VALENZUELA:Yes please.

ATTY. SEGUI:I'm sorry Your Honors I am not privy to that personally.

ATTY. SEGUI: Initially they will be considered/categorized as unclassified but there will be
hopefully a subsequent evaluation or assessment of the matter to see if we also have the
resources and expertise if it can be finally unclassified. I should say should fall within the
fairview of the system, the EIA system. In other words, it's in a sort of how do you say that it's
in a state of limbo. So it's unclassified, that's the most we can do in the meantime.

ATTY. SORIANO:Mr. Witness, the question is did the Department of Agriculture coordinate
with your Office with regard the field testing of BT Talong as required under the law?
ATTY. SORIANO:Already answered your Honor, objection.
HON. J. DICDICAN:The witness in effect said he does not know, he's not in a position to
answer.

HON. J. VALENZUELA: And Mr. Witness you also said that the agency the EMB is without the
capability to evaluate the projects such as this one in particular?
ATTY. SEGUI:Yes, Your Honors as of now.

xx xx
ATTY. SORIANO: Did the EMB Mr. Witness perform such evaluation in the case
of BT Talong field testing?

HON. J. VALENZUELA: So therefore, when you say initially it's unclassified and then you're
saying afterwards the EMB needs evaluation but then you're saying the EMB is without any
capability to evaluate then what happens?

ATTY. ACANTILADO: Your Honor that is speculative, the witness has just answered a while ago
that the EMB has not yet received any project with respect to that Your Honor. So the witness
would not be in a position to answer that Your Honors.

ATTY. SEGUI: Well Your Honors, I did not draft the regulation myself. As the Chief of the Legal
of the EMB that's how we interpret it. But the truth of the matter is with all pragmatism we
don't have the resources as of now and expertise to do just that.

HON. J. DICDICAN: Lay the basis first.

HON. J. BARRIOS: So in other words you admit that the EMB is without any competence to
make a categorical or initial examination of this uncategorized activity, is that what you
mean?

ATTY. SORIANO: The earlier answer Your Honor of the witness is in general terms. My second
question, my follow-up question is specifically Your Honor theBT talong field testing.

ATTY. SEGUI: It would appear, yes.

ATTY. SEGUI: Well from where I sit Your Honors, it would appear that it could be categorized as
unclassified...

HON. J. BARRIOS: What do you think would prompt your office to make such initial
examination?

HON. J. VALENZUELA:Unclassified?
ATTY. SEGUI: As the section will initially provide. But there must be prior ... may I continue to
harp on that Your Honors. There must be prior ... let's say conditions ... there must be prior
evaluation and assessment just the same by the EMB.

ATTY. SEGUI:Well executive fee at the usual dictates ... the Secretary of the DENR probably
even by request of the parties concerned.
HON. J. BARRIOS:So that means you are waiting for a request? Are you not? Proactive in this
activity in performing your obligations and duties?

HON. J. VALENZUELA: Prior to what Mr. Witness?

ATTY. SEGUI:We will categorize it as unclassified but there must be ... (interrupted)

ATTY. SEGUI: Well Your Honors, the national budget if I may ... I attend budget hearings
myself. The budget for the environment is hardly ... the ratio is ... if we want to protect
indeed the environment as we profess, with all due respect if Congress speaks otherwise.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary
So initially you call it unclassified and then you say prior to...

HON. J. BARRIOS: May I interrupt, can we go into specifics. From what I have read so far, under
No. 2 of your Judicial Affidavit, [you] are saying that the EMB is tasked in advising the DENR on
matters related to environmental management, conservation and pollution control, right?

ATTY. SEGUI: I'm sorry Your Honors, may I reform.

ATTY. SEGUI:Yes.

HON. J. BARRIOS:Thereafter you stated that you are tasked mainly with PD 1586 which refers
to Environmental Critical Areas of Projects and more specifically focused on Proclamation No.
2146. With respect to this BT Talong, you mentioned that this is at first is uncategorized, it's
not within?
ATTY. SEGUI: It's not within Proclamation 2146 Your Honor.
HON. J. BARRIOS: But you did mention that under the rules and regulations, even in an
uncategorized activity, pertaining to the environment, your Office has the mandate and then
you later say that your Office is without competence, do I follow your line of standing?
ATTY. SEGUI:Yes, precisely it will be categorized as per section 7 as unclassified because it
doesn't fall as of now within Proclamation 2146.
HON. J. BARRIOS:Yes, but under the implementing rules your Office has the mandate to act on
other unclassified activities and you answered that your Office has no competence.
ATTY. SEGUI:Proclamation 2146 executed by then Pres. Marcos, the IRR pointed to was
executed by I believe the Secretary of DENR. We need an amendment of 2146. 141 (Emphasis
supplied)
The foregoing stance of the EMB's Chief of the Legal Division is an indication of the DENREMB's lack of serious attention to their mandate under the law in the implementation of the
NBF, as provided in the following sections of EO 514:
4.9 Mandate of the Department of Environment and Natural Resources. - As the primary
government agency responsible for the conservation, management, development and proper
use of the country's environment and natural resources, the Department of Environment and
Natural Resources (DENR) shall ensure that environmental assessments are done and
impacts identified in biosafety decisions. It shall also take the lead in evaluating and
monitoring regulated articles intended for bioremediation, the improvement of forest genetic
resources, and wildlife genetic resources.
xx xx
4.12 Focal Point and Competent National Authorities.
4.12.1 For purposes of Article 19 of the Cartagena Protocol on Biosafety, the national focal
point responsible for liaison with the Secretariat shall be the Department of Foreign Affairs.
The competent national authorities, responsible for performing the administrative functions
required by the Protocol, shall be, depending on the particular genetically modified organisms
in question, the following:chanRoblesvirtualLawlibrary
xx xx
4.12.1.4 The Department of Environment and Natural Resources, for biosafety decisions

covered by the Protocol that concernregulated organisms intended for bioremediation, the
improvement of forest genetic resources, and wildlife genetic resources, andapplications of
modern biotechnology with potential impact on the conservation and sustainable use of
biodiversity. (Emphasis supplied)
On the supposed absence of budget mentioned by Atty. Segui, EO 514 itself directed the
concerned agencies to ensure that there will be funding for the implementation of the NBF as
it was intended to be a multi -disciplinary effort involving the different government
departments and agencies.
SEC. 6. Funding. - The DOST, DENR, DA, and DOH shall allocate funds from their present
budgets to implement the NBF, including support to the operations of the NCBP and its
Secretariat. Starting 2006 and thereafter, the funding requirements shall be included in the
General Appropriations Bill submitted by each of said departments to Congress.
These concerned departments shall enter into agreement on the sharing of financial and
technical resources to support the NCBP and its Secretariat.
All told, petitioners government agencies clearly failed to fulfil their mandates in the
implementation of the NBF.
Application of the Precautionary Principle
The precautionary principle originated in Germany in the 1960s, expressing the normative idea
that governments are obligated to "foresee and forestall" harm to the environment. In the
following decades, the precautionary principle has served as the normative guideline for
policymaking by many national governments.142 The Rio Declaration on Environment and
Development, the outcome of the 1992 United Nations Conference on Environment and
Development held in Rio de Janeiro, defines the rights of the people to be involved in the
development of their economies, and the responsibilities of human beings to safeguard the
common environment. It states that the long term economic progress is only ensured if it is
linked with the protection of the environment.143 For the first time, the precautionary
approach was codified under Principle 15, which reads:
In order to protect the environment, the precautionary approach shall be widely applied by
States according to their capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.
Principle 15 codified for the first time at the global level the precautionary approach, which
indicates that lack of scientific certainty is no reason to postpone action to avoid potentially
serious or irreversible harm to the environment. It has been incorporated in various
international legal instruments.144The Cartagena Protocol on Biosafety to the Convention on
Biological Diversity, finalized and adopted in Montreal on January 29, 2000, establishes an
international regime primarily aimed at regulating trade in GMOs intended for release into the
environment, in accordance with Principle 15 of the Rio Declaration on Environment and
Development. The Protocol thus provides:
Article
10

there exist considerable scientific uncertainties;

there exist scenarios (or models) of possible harm that are scientifically reasonable
(that is based on some scientifically plausible reasoning);

6. Lack of scientific certainty due to insufficient relevant scientific information and knowledge
regarding the extent of the potential adverse effects of a living modified organism on the
conservation and sustainable use of biological diversity in the Party of import, taking also into
account risks to human health, shall not prevent that Party from taking a decision, as
appropriate, with regard to the import of the living modified organism in question as referred
to in paragraph 3 above, in order to avoid or minimize such potential adverse effects.

uncertainties cannot be reduced in the short term without at the same time
increasing ignorance of other relevant factors by higher levels of abstraction and
idealization;

the potential harm is sufficiently serious or even irreversible for present or future
generations or otherwise morally unacceptable;

xx xx

there is a need to act now, since effective counteraction later will be made
significantly more difficult or costly at any later time.

DECISION PROCEDURE
xx xx

Article
11
PROCEDURE FOR LIVING MODIFIED ORGANISMS
INTENDED FOR DIRECT USE AS FOOD OR FEED,
OR FOR PROCESSING
8. Lack of scientific certainty due to insufficient relevant scientific information and knowledge
regarding the extent of the potential adverse effects of a living modified organism on the
conservation and sustainable use of biological diversity in the Party of import, taking also into
account risks to human health, shall not prevent that Party from taking a decision, as
appropriate, with regard to the import of that living modified organism intended for direct use
as food or feed, or for processing, in order to avoid or minimize such potential adverse effects.
xx xx
Annex III
RISK ASSESSMENT
General principles
xx xx
4. Lack of scientific knowledge or scientific consensus should not necessarily be interpreted as
indicating a particular level of risk, an absence of risk, or an acceptable risk.
The precautionary principle applies when the following conditions are met145:

The Rules likewise incorporated the principle in Part V, Rule 20, which states:
PRECAUTIONARY PRINCIPLE
SEC. 1. Applicability. - When there is a lack of full scientific certainty in establishing a causal link
between human activity and environmental effect, the court shall apply the precautionary
principle in resolving the case before it.
The constitutional right of the people to a balanced and healthful ecology shall be given the
benefit of the doubt.
SEC. 2. Standards for application. - In applying the precautionary principle, the following
factors, among others, may be considered: (1) threats to human life or health; (2) inequity to
present or future generations; or (3) prejudice to the environment without legal consideration
of the environmental rights of those affected.
Under this Rule, the precautionary principle finds direct application in the evaluation of
evidence in cases before the courts. The precautionary principle bridges the gap in cases
where scientific certainty in factual findings cannot be achieved. By applying the precautionary
principle, the court may construe a set of facts as warranting either judicial action or inaction,
with the goal of preserving and protecting the environment. This may be further evinced from
the second paragraph where bias is created in favor of the constitutional right of the people to
a balanced and healthful ecology. In effect, the precautionary principle shifts the burden of
evidence of harm away from those likely to suffer harm and onto those desiring to change the
status quo. An application of the precautionary principle to the rules on evidence will enable
courts to tackle future environmental problems before ironclad scientific consensus
emerges.146
For purposes of evidence, the precautionary principle should be treated as a principle of last
resort, where application of the regular Rules of Evidence would cause in an inequitable result
for the environmental plaintiff

farmers and the public will provide a needed variety of perspective foci, and knowledge. 149
(a) settings in which the risks of harm are uncertain; (b) settings in which harm might be
irreversible and what is lost is irreplaceable; and (c) settings in which the harm that might
result would be serious. When these features
uncertainty, the possibility of irreversible harm, and the possibility of serious harm
coincide, the case for the precautionary principle is strongest. When in doubt, cases must be
resolved in favor of the constitutional right to a balanced and healthful ecology.
Parenthetically, judicial adjudication is one of the strongest fora in which the precautionary
principle may find applicability.147

Finally, while the drafters of the NBF saw the need for a law to specifically address the concern
for biosafety arising from the use of modern biotechnology, which is deemed necessary to
provide more permanent rules, institutions, and funding to adequately deal with this
challenge,150 the matter is within the exclusive prerogative of the legislative branch.
WHEREFORE, the petitions are DENIED. The Decision dated May 17, 2013 of the Court of
Appeals in CA-G.R. SP No. 00013 is hereby MODIFIED, as follows:chanRoblesvirtualLawlibrary
1. The conduct of the assailed field testing for Bt talong is hereby PERMANENTLY ENJOINED;

Assessing the evidence on record, as well as the current state of GMO research worldwide, the
Court finds all the three conditions present in this case - uncertainty, the possibility of
irreversible harm and the possibility of serious harm.
Eggplants (talong) are a staple vegetable in the country and grown by small-scale farmers,
majority of whom are poor and marginalized. While the goal of increasing crop yields to raise
farm incomes is laudable, independent scientific studies revealed uncertainties due to
unfulfilled economic benefits from Btcrops and plants, adverse effects on the environment
associated with use of GE technology in agriculture, and serious health hazards from
consumption of GM foods. For a biodiversity-rich country like the Philippines, the natural and
unforeseen consequences of contamination and genetic pollution would be disastrous and
irreversible.
Alongside the aforesaid uncertainties, the non-implementation of the NBF in the crucial stages
of risk assessment and public consultation, including the determination of the applicability of
the EIS requirements to GMO field testing, are compelling reasons for the application of the
precautionary principle. There exists a preponderance of evidence that the release of GMOs
into the environment threatens to damage our ecosystems and not just the field trial sites, and
eventually the health of our people once the Bt eggplants are consumed as food. Adopting the
precautionary approach, the Court rules that the principles of the NBF need to be
operationalized first by the coordinated actions of the concerned departments and agencies
before allowing the release into the environment of genetically modified eggplant. The more
prudent course is to immediately enjoin the Bt talong field trials and approval for its
propagation or commercialization until the said government offices shall have performed their
respective mandates to implement the NBF.
We have found the experience of India in the Bt brinjal field trials - for which an indefinite
moratorium was recommended by a Supreme Court-appointed committee till the government
fixes regulatory and safety aspects - as relevant because majority of Filipino farmers are also
small-scale farmers. Further, the precautionary approach entailed inputs from all stakeholders,
including the marginalized farmers, not just the scientific community. This proceeds from the
realization that acceptance of uncertainty is not only a scientific issue, but is related to public
policy and involves an ethical dimension.148 For scientific research alone will not resolve all the
problems, but participation of different stakeholders from scientists to industry, NGOs,

2. Department of Agriculture Administrative Order No. 08, series of 2002 is declared NULL
AND VOID; and
3. Consequently, any application for contained use, field testing, propagation and
commercialization, and importation of genetically modified organisms i sTEMPORARILY
ENJOINED until a new administrative order is promulgated in accordance with law.
No pronouncement as to costs.
SO ORDERED.chanroblesvirtuallawlibrary
Sereno, C.J., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Perez, Mendoza, Reyes,
and Perlas-Bernabe, JJ., concur.
Carpio, J., no part prior inhibition.
Velasco, Jr., J., pls. see Concurring Opinion.
Brion, J., on official leave.
Leonen, J., see separate concurring opinion.
Jardeleza, J., no part.

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and
represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA,
minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD
and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and
NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGFRID and
DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and
represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor,
represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor,
represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T.
CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA
DESAMPARADO, minor, represented by her parents JOSE and ANGELA DESAMPARADO,
CARLO JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE
CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE,
all surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ,
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors,
represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE
VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented
by their parents ANTONIO and MARICA ABAYA, MABILIN, MARIO, JR. and MARIETTE, all
surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA,
CLARISSA, ANN MARIE, NAGEL and IMEE LYN, all surnamed OPOSA, minors and represented
by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH
JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX and VILMI
QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL,
minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE
PHILIPPINE ECOLOGICAL NETWORK, INC., 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.
FELICIANO, J., Concurring Opinion:
Constitutional Law; The protection of the environment including the forest cover of our
territory is of extreme importance for the country.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.
SPECIAL CIVIL ACTION for certiorari of the dismissal order of the RTC of Makati, Br. 66.
The facts are stated in the opinion of the Court.

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 intergenerational 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 countrys
vital life-support systems and continued rape of Mother Earth.
The controversy has its genesis in Civil Case No. 90-777 which was filed before Branch 66
(Makati, Metro Manila) of the Regional Trial Court (RTC), National Ca pital 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 countrys virgin tropical rainforests . 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 generation yet unborn.4
Consequently, it is prayed for that judgment be rendered:
x x x 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 x x x 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 (30,000.00) 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 countrys 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 the 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 annumapproximately the size of
the entire island of Catanduanes, (d) the endangering and extinction of the countrys unique,
rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities,
including the disappearance of the Filipinos 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 flooding 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 earths capacity to process carbon dioxide gases which had 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 tha t 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 s pecifically allege that:
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 countrys 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 countrys 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 defendants predecessors have granted timber license
agreements (TLAs) 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 hournighttime, Saturdays, Sundays and holidays includedthe 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 deforestration to the plaintiff minors 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 plaintiffsespecially plaintiff
minors and their successorswho 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. Plaintiffs have exhausted all administrative remedies with the defendants 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 TLAs, to the continuing
serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLAs is an act violative to 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 has been abundantly blessed with.
19. Defendants refusal to cancel the aforementioned TLAs 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 conducive to a life of dignity
and well being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendants continued refusal to cancel the aforementioned TLAs 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 nations marine wealth. (Section 2, ibid);
c. conserve and promote the nations 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, defendants act is contrary to the highest law of humankindthe natural lawand
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 countrys 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 defendants 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 defendants claimthat the complaint states no
cause of action against him and that it raises a political questionsustained, the respondent
Judge further ruled that the granting of the reliefs 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 chi ldren, 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 mans inalienable right to self-preservation and self-perpetuation embodied in
natural law. Petitioners likewise rely on the respondents correlative obligation, per Section 4
of E.O. No. 192, to safeguard the peoples right to a healthful environment.

It is further claimed that the issue of the respondent Secretarys 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 Constitutions 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 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 loggi ng 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
recourse is not to file an action to court, but to lobby before Congress for the passage of a bill
that would ban logging totally.

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 countrys 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.

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 timeusually 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.

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 Judges challenged order for having
been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent
portions of the said order read as follows:

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.

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) feel 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.

xxx

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

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:

We do not agree with the trial courts conclusion 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.

MR. VILLACORTA:

The complaint focuses on one specific fundamental legal rightthe right to a balanced and
healthful ecology which, for the first time in our nations constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly
provides:

MR. AZCUNA:

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.
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 selfpreservation and self-perpetuationaptly 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 comegenerations which stand to inherit nothing but parched earth incapable of
sustaining life.

Does this section mandate the State to provide sanctions against all forms of pollutionair,
water and noise pollution?

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 prov ided for
impairment of environmental balance.12
The said right implies, among many other things, the judicious management and conservation
of the countrys forests..
Without such forests, the ecological or environmental balance would be irreversibly 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 countrys 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
countrys 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 countrys
forest, mineral, land, offshore 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 use of the countrys 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 in 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 countrys 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 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 agencys 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 States
constitutional mandate to control and supervise the exploration, development, utilization, and
conservation of the countrys 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 DENRs dutyunder its mandate and by virtue of its powers and
functions under E.O. No. 192 and the Administrative Code of 1987to protect and advance
the said right.
A denial or violation of that right by the other who has the correlative 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:
x x x 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 dismis s 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 or 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 a 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 cannot 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
SUPREME COURT REPORTS ANNOTATED
Oposa vs. Factoran, Jr.
abuse of discretion amounting to lack or excess of 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 resolving 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: x x x.
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:
x x x 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 x x x.
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a
contract, property or a property right protected by the due process clause of the Constitution.
In Tan vs. Director of Forestry,25 this Court held:
x x x A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber license is
not a contract within the purview of the due process clause; it is only a license or privilege,
which can be validly withdrawn whenever dictated by public i nterest 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). x x x
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary:26
x x x Timber licenses, permits and license agreements are the principal instruments by which
the State regulates the utilization and disposition of forest resources to the end that public
welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege
granted by the State to qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the forest products therein. They may
be validly amended, modified, replaced or rescinded by the Chief Executive when national
interests so require. Thus, they are not deemed contracts within the purview of the due
process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also,
Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Under our form of government the us e 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.

Since timber licenses are not contracts, the non-impairment clause, which reads:

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.

SEC. 10. No law impairing, the obligation of contracts shall be passed.27 cannot be invoked.

No pronouncement as to costs.

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 a 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:

SO ORDERED.
Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason,
JJ., concur.
Narvasa (C.J.), No part; related to one of the parties.
Feliciano, J., Please see separate opinion concurring in the result.
Puno, J., No part in the deliberations.

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 nonimpairment 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.

FELICIANO, J.: Concurring in the result

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:

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

Vitug, J., No part; I was not yet with the Court when the case was deliberated upon.

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.

be formulations of policy, as general and abstract as the constitutional statements of basic

policy in Article II, Sections 16 (the rightto a balanced and healthful ecology) and 15 (the
right to health).

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 involvedmembership in this
class appears to embrace everyone living in the country whether now or in the futureit
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 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 a 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 ca se.

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:

The Court has also declared that the complaint has alleged and focused upon one specific
fundamental legal rightthe 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 rubric appears to be
entirely open-ended: prevention and control of emission of toxic fumes and smoke fr om
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, s treets and
thoroughfares; failure to rehabilitate land after stripmining 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 1977all appear to

(iv) flood control and natural calamities;

(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;

(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.

Where no specific, operable norms and standards are shown to exist, then the policy making
departmentsthe legislative and executive departmentsmust 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 suggestion is simply that petitioners must, before the trial court, show a more specific legal
righta right cast in language of a significantly lower order of generality than Article II (15) of
the Constitutionthat 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.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession
agreements or TLAs 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 conces sion 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.

It seems to me important that the legal right which is an essential component of a caus e 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 considerationwhere 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:
Section 1. x x x
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. (Emphases 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.

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 Courts decision issued today should, however, be subjected to closer examination.
Petition granted. Challenged order set aside. [Oposa vs. Factoran, Jr., 224 SCRA 792(1993)]

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

VELASCO, JR., J.:

The need to address environmental pollution, as a cause of climate change, has of

late gained the attention of the international community. Media have finally trained their

METROPOLITAN MANILA G.R. Nos. 171947-48

DEVELOPMENT AUTHORITY,
DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, Present:
DEPARTMENT OF EDUCATION,
CULTURE AND SPORTS,[1] PUNO, C.J.,
DEPARTMENT OF HEALTH, QUISUMBING,
DEPARTMENT OF AGRICULTURE, YNARES-SANTIAGO,
DEPARTMENT OF PUBLIC CARPIO,
WORKS AND HIGHWAYS, AUSTRIA-MARTINEZ,
DEPARTMENT OF BUDGET AND CORONA,
MANAGEMENT, PHILIPPINE CARPIO MORALES,
COAST GUARD, PHILIPPINE AZCUNA,
NATIONAL POLICE MARITIME TINGA,
GROUP, and DEPARTMENT OF CHICO-NAZARIO,
THE INTERIOR AND LOCAL VELASCO, JR.,
GOVERNMENT, NACHURA,
Petitioners, REYES,
LEONARDO-DE CASTRO, and
- versus - BRION, JJ.
CONCERNED RESIDENTS OF
MANILA BAY, represented and
joined by DIVINA V. ILAS,
SABINIANO ALBARRACIN,
MANUEL SANTOS, JR., DINAH
DELA PEA, PAUL DENNIS
QUINTERO, MA. VICTORIA
LLENOS, DONNA CALOZA,
FATIMA QUITAIN, VENICE
SEGARRA, FRITZIE TANGKIA,
SARAH JOELLE LINTAG,
HANNIBAL AUGUSTUS BOBIS,
FELIMON SANTIAGUEL, and Promulgated:
JAIME AGUSTIN R. OPOSA,
Respondents. December 18, 2008
x-----------------------------------------------------------------------------------------x

sights on the ill effects of pollution, the destruction of forests and other critical habitats, oil
spills, and the unabated improper disposa l of garbage. And rightly so, for the magnitude of
environmental destruction is now on a scale few ever foresaw and the wound no longer simply
heals by itself.[2] But amidst hard evidence and clear signs of a climate crisis that need bold
action, the voice of cynicism, naysayers, and procrastinators can still be heard.

This case turns on government agencies and their officers who, by the nature of their
respective offices or by direct statutory command, are tasked to protect and preserve, at the
first instance, our internal waters, rivers, shores, and seas polluted by human activities. To
most of these agencies and their official complement, the pollution menace does not seem to
carry the high national priority it deserves, if their track records are to be the norm. Their
cavalier attitude towards solving, if not mitigating, the environmental pollution problem, is a
sad commentary on bureaucratic efficiency a nd commitment.

At the core of the case is the Manila Bay, a place with a proud historic past, once
brimming with marine life and, for so many decades in the past, a spot for different contact
recreation activities, but now a dirty and slowly dying expans e mainly because of the abject
official indifference of people and institutions that could have otherwise made a difference.

This case started when, on January 29, 1999, respondents Concerned Residents of
Manila Bay filed a complaint before the Regiona l Trial Court (RTC) in Imus, Cavite against
several government agencies, among them the petitioners, for the cleanup, rehabilitation, and
protection of the Manila Bay. Raffled to Branch 20 and docketed as Civil Case No. 1851 -99 of

DECISION

the RTC, the complaint alleged that the water quality of the Manila Bay had fallen way below

Natural Resources (DENR), testifying for petitioners, stated that water samples collected from

the allowable standards set by law, specifically Presidential Decree No. (PD) 1152 or the

different beaches around the Manila Bay showed that the amount of fecal coliform content

Philippine Environment Code. This environmental aberration, the complaint stated, stemmed

ranged from 50,000 to 80,000 most probable number (MPN)/ml when what DENR

from:

Administrative Order No. 34-90 prescribed as a safe level for bathing and other forms of
x x x [The] reckless, wholesale, accumulated and ongoing acts of omission or
commission [of the defendants] resulting in the clear and present danger to
public health and in the depletion and contamination of the marine life of
Manila Bay, [for which reason] ALL defendants must be held jointly and/or
solidarily liable and be collectively ordered to clean up Manila Bay and to
restore its water quality to class B waters fit for swimming, skin-diving, and
other forms of contact recreation.[3]

contact recreational acti vities, or the SB level, is one not exceeding 200 MPN/100 ml. [4]

Rebecca de Vera, for Metropolitan Waterworks and Sewerage System (MWSS) and in
behalf of other petitioners, testified about the MWSS efforts to reduce pollution along
the Manila Bay through the Manila Second Sewerage Project. For its part, the Philippine Ports
Authority (PPA) presented, as part of its evidence, its memorandum circulars on the study

In their individual causes of action, respondents alleged that the continued neglect of
petitioners in abating the pollution of the Manila Bay constitutes a violation of, among others:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)

Respondents constitutional right to life, health, and a balanced ecology;

The Environment Code (PD 1152);
The Pollution Control Law (PD 984);
The Water Code (PD 1067);
The Sanitation Code (PD 856);
The Illegal Disposal of Wastes Decree (PD 825);
The Marine Pollution Law (PD 979);
Executive Order No. 192;
The Toxic and Hazardous Wastes Law (Republic Act No. 6969);
Civil Code provisions on nuisance and human relations;
The Trust Doctrine and the Principle of Guardianship; and
International Law

Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to

clean the Manila Bay and submit to the RTC a concerted concrete plan of action for the
purpose.

The trial of the case started off with a hearing at the Manila Yacht Club followed by
an ocular inspection of the Manila Bay. Renato T. Cruz, the Chief of the Water Quality
Management Section, Environmental Management Bureau, Department of Environment and

being conducted on ship-generated waste treatment and disposal, and its Linis Dagat (Clean
the Ocean) project for the cleaning of wastes accumulated or washed to shore.
The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay

On September 13, 2002, the RTC rendered a Decision [5] in favor of respondents. The
dispositive portion reads:
WHEREFORE, finding merit in the complaint, judgment is hereby rendered
ordering the abovenamed defendant-government agencies, jointly and
solidarily, to clean up and rehabilitate Manila Bay and restore its waters to
SB classification to make it fit for swimming, skin-diving and other forms of
contact recreation. To attain this, defendant-agencies, with defendant DENR
as the lead agency, are directed, within six (6) months from receipt hereof,
to act and perform their respective duties by devising a consolidated,
coordinated and concerted scheme of a ction for the rehabilitation and
restoration of the bay.
In particular:
Defendant MWSS is directed to install, operate and maintain adequate
[sewerage] treatment facilities in strategic places under its jurisdiction and
increase their capacities.
Defendant LWUA, to see to it that the water districts under its wings,
provide, construct and operate sewage facilities for the proper disposal of
waste.

Defendant DENR, which is the lead agency in cleaning up Manila Bay, to

install, operate and maintain waste facilities to rid the bay of toxic and
hazardous substances.
Defendant PPA, to prevent and also to treat the discharge not only of shipgenerated wastes but also of other solid and liquid wastes from docking
vessels that contribute to the pollution of the bay.
Defendant MMDA, to establish, operate and maintain an adequate and
appropriate sanitary landfill and/or adequate solid waste and liquid disposal
as well as other alternative garbage disposal system such as re-use or
recycling of wastes.

The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of
Appeals (CA) individual Notices of Appeal which were eventually consolidated and docketed as
CA-G.R. CV No. 76528.

On the other hand, the DENR, Department of Public Works and Highways (DPWH),
Metropolitan Manila Development Authority (MMDA), Philippine Coast Guard (PCG),
Philippine National Police (PNP) Maritime Group, and five other executive departments and
agencies filed directly with this Court a petition for review under Rule 45. The Court, in a
Resolution of December 9, 2002, sent the said petition to the CA for consolidation with the

Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to

revitalize the marine life in Manila Bay and restock its waters with
indigenous fish and other aquatic animals.
Defendant DBM, to provide and set aside an adequate budget solely for the
purpose of cleaning up and rehabilitation of Manila Bay.
Defendant DPWH, to remove and demolish structures and other nuisances
that obstruct the free flow of waters to the bay. These nuisances discharge
solid and liquid wastes which eventually end up in Manila Bay. As the
construction and engineering arm of the government, DPWH is ordered to
actively participate in removing debris, such as carcass of sunken vessels,
and other non-biodegradable garbage in the bay.
Defendant DOH, to closely supervise and monitor the operations of septic
and sludge companies and require them to have proper facilities for the
treatment and disposal of fecal sludge and sewage coming from septic
tanks.

consolidated appeals of MWSS, LWUA, and PPA, docketed as CA-G.R. SP No. 74944.

Petitioners, before the CA, were one in arguing in the main that the pertinent
provisions of the Environment Code (PD 1152) relate only to the cleaning of specific pollution
incidents and do not cover cleaning in general. And apart from raising concerns about the lack
of funds appropriated for cleaning purposes, petitioners also asserted that the cleaning of
the Manila Bay is not a ministerial act which can be compelled by mandamus.

The CA Sustained the RTC

By a Decision[6] of September 28, 2005, the CA denied petitioners appeal and
affirmed the Decision of the RTC in toto, stressing that the trial courts decision did not require
petitioners to do tasks outside of their usual basic functions under existing laws.[7]

Defendant DECS, to inculcate in the minds and hearts of the people through
education the importance of preserving and protecting the environment.
Petitioners are now before this Court praying for the allowance of their Rule 45
Defendant Philippine Coast Guard and the PNP Maritime Group, to protect
at all costs the Manila Bay from all forms of illegal fishing.
No pronouncement as to damages and costs.
SO ORDERED.

petition on the following ground and supporting arguments:

THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE
PASSED UPON BY THE HONORABLE COURT, I.E., IT AFFIRMED THE TRIAL
COURTS DECISION DECLARING THAT SECTION 20 OF [PD] 1152 REQUIRES
CONCERNED GOVERNMENT AGENCIES TO REMOVE ALL POLLUTANTS
SPILLED AND DISCHARGED IN THE WATER SUCH AS FECAL COLIFORMS.
ARGUMENTS

I
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE
CLEANING OF SPECIFIC POLLUTION INCIDENTS AND [DO] NOT COVER
CLEANING IN GENERAL
II
THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A
MINISTERIAL ACT OF PETITIONERS THAT CAN BE COMPELLED BY
MANDAMUS.

Petitioners maintain that the MMDAs duty to take measures and maintain adequate
solid waste and liquid disposal systems necessarily involves policy evaluation and the exercise
of judgment on the part of the agency concerned. They argue that the MMDA, in carrying out
its mandate, has to make decisions, including choosing where a landfill should be located by
undertaking feasibility studies and cost estimates, all of which entail the exercise of discretion.

Respondents, on the other hand, counter that the statutory command is clear and
The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the

that petitioners duty to comply with and act according to the clear mandate of the law does

headings, Upgrading of Water Quality and Clean-up Operations, envisage a cleanup in general

not require the exercise of discretion. According to respondents, petitioners, the MMDA in

or are they limited only to the cleanup of specific pollution incidents? And second, can

particular, are without discretion, for example, to choose which bodies of water they are to

petitioners be compelled by mandamus to clean up and rehabilitate the ManilaBay?

clean up, or which discharge or spill they are to contain. By the same token, respondents
maintain that petitioners are bereft of discretion on whether or not to alleviate the problem of

On August 12, 2008, the Court conducted and heard the parties on ora l arguments.

solid and liquid waste disposal; in other words, it is the MMDAs ministerial duty to attend to
such services.

Our Ruling
We agree with respondents.
We shall first dwell on the propriety of the issuance of mandamus under the
premises.

First off, we wish to state that petitioners obligation to perform their duties as
defined by law, on one hand, and how they are to carry out such duties, on the other, are two
The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus

different concepts. While the implementation of the MMDAs mandated tasks may entail a
decision-making process, the enforcement of the law or the very act of doing what the law

Generally, the writ of mandamus lies to require the execution of a ministerial duty.[8] A
ministerial duty is one that requires neither the exercise of official discretion nor judgment. [9] It
connotes an act in which nothing is left to the discretion of the person executing it. It is a
simple, definite duty arising under conditions admitted or proved to exist and imposed by
law.[10] Mandamus is available to compel action, when refused, on matters involving discretion,
but not to direct the exercise of judgment or discretion one way or the other.

exacts to be done is ministerial in nature and may be compelled by mandamus. We said so

in Social Justice Society v. Atienza [11] in which the Court directed the City ofManila to enforce,
as a matter of ministerial duty, its Ordinance No. 8027 directing the three big local oil players
to cease and desist from operating their business in the so-called Pandacan Terminals within
six months from the effectivity of the ordinance. But to illustrate with respect to the instant
case, the MMDAs duty to put up an adequate and appropriate sanitary landfill and solid waste
and liquid disposal as well as other alternative garbage disposal systems is ministerial, its duty

being a statutory imposition. The MMDAs duty in this regard is spelled out in Sec. 3(c) of

rehabilitation, protection, and preservation of the Manila Bay. They are precluded from

Republic Act No. (RA) 7924 creating the MMDA. This section defines and delineates the scope

choosing not to perform these duties. Consider:

of the MMDAs waste disposal services to include:

Solid waste disposal and management which include formulation
and implementation of policies, standards, programs and projects for
proper and sanitary waste disposal. It shall likewise include
the establishment and operation of sanitary land fill and related
facilities and the implementation of other alternative programs intended to
reduce, reuse and recycle solid waste. (Emphasis added.)

(1) The DENR, under Executive Order No. (EO) 192,[15] is the primary agency responsible for the
conservation, management, development, and proper use of the countrys environment and
natural resources. Sec. 19 of the Philippine Clean Water Act of 2004 (RA 9275), on the other
hand, designates the DENR as the primary government agency responsible for its enforcement
and implementation, more particularly over all aspects of water quality management. On
water pollution, the DENR, under the Acts Sec. 19(k), exercises jurisdiction over all aspects of

The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste

water pollution, determine[s] its location, magnitude, extent, severity, causes and effects and

Management Act (RA 9003) which prescribes the minimum criteria for the establishment of

other pertinent information on pollution, and [takes] measures, using available methods and

sanitary landfills and Sec. 42 which provides the minimum operating requirements that each

technologies, to prevent and abate such pollution.

site operator shall maintain in the operation of a sanitary landfill. Complementing Sec. 41 are

The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report, an

Secs. 36 and 37 of RA 9003,[12] enjoining the MMDA and local government units, among others,

Integrated Water Quality Management Framework, and a 10-year Water Quality Management

after the effectivity of the law on February 15, 2001, from using and operating open dumps for

Area Action Plan which is nationwide in scope covering the Manila Bay and adjoining areas.

solid waste and disallowing, five years after such effectivity, the use of controlled dumps.

Sec. 19 of RA 9275 provides:

The MMDAs duty in the area of solid waste disposal, as may be noted, is set forth not
only in the Environment Code (PD 1152) and RA 9003, but in its charter as well. This duty of
putting up a proper waste disposal system cannot be characterized as discretionary, for, as
earlier stated, discretion presupposes the power or right given by law to public functionaries
to act officially according to their judgment or conscience.[13] A discretionary duty is one that

Sec. 19 Lead Agency.The [DENR] shall be the primary government agency

responsible for the implementation and enforcement of this Act x x x unless
otherwise provided herein. As such, it shall have the following functions,
powers and responsibilities:
a) Prepare a National Water Quality Status report within twenty-four (24)
months from the effectivity of this Act: Provided, That the Department
shall thereafter review or revise and publish annually, or as the need
arises, said report;

allows a person to exercise judgment and choose to perform or not to perform. [14] Any
suggestion that the MMDA has the option whether or not to perform its solid waste disposal -

b)

Prepare an Integrated Water Quality Management Framework within

twelve (12) months following the completion of the status report;

c)

Prepare a ten (10) year Water Quality Management Area Action Plan
within 12 months following the completion of the framework for each
designated water management area. Such action plan shall be
reviewed by the water quality management area governing board
every five (5) years or as need arises .

related duties ought to be dismissed for want of legal basis.

A perusal of other petitioners respective charters or like enabling statutes and pertinent laws
would yield this conclusion: these government agencies are enjoined, as a matter of statutory
obligation, to perform certain functions relating directly or indi rectly to the cleanup,

the LWUA, as attached agency of the DPWH, is tasked with providing sewerage and sanitation
The DENR has prepared the status report for the period 2001 to 2005 and is in the process of
completing

the
[16]

Framework.

preparation

of

the

Integrated

Water

Quality

Management

Within twelve (12) months thereafter, it has to submit a final Water Quality

Management Area Action Plan.[17] Again, like the MMDA, the DENR should be made to
accomplish the tasks assigned to it under RA 9275.
Parenthetically, during the oral arguments, the DENR Secretary manifested that the DENR,
with the assistance of and in partnership with various government agencies and non government organizations, has completed, as of December 2005, the final draft of a
comprehensive action plan with estimated budget and time frame, denominated as Operation
Plan for the Manila Bay Coastal Strategy, for the rehabilitation, restoration, and rehabilitation
of the Manila Bay.

facilities, inclusive of the setting up of efficient and safe collection, treatment, and sewage
disposal system in the different parts of the country.[19] In relation to the instant petition, the
LWUA is mandated to provide sewerage and sanitation facilities in Laguna, Cavite, Bulacan,
Pampanga, and Bataan to prevent pollution in theManila Bay.
(4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO
292),[20] is designated as the agency tasked to promulgate and enforce all laws and issuances
respecting the conservation and proper utilization of agricultural and fishery resources.
Furthermore, the DA, under the Philippine Fisheries Code of 1998 (RA 8550), is, in coordination
with local government units (LGUs) and other concerned sectors, in charge of establishing a
monitoring, control, and surveillance system to ensure that fisheries and aquatic resources in
Philippine waters are judiciously utilized and managed on a sustainable basis. [21] Likewise
under RA 9275, the DA is charged with coordinating with the PCG and DENR for the

The completion of the said action plan and even the implementation of some of its phases
should more than ever prod the concerned agencies to fast track what are assigned them
under existing laws.

(2) The MWSS, under Sec. 3 of RA 6234,[18] is vested with jurisdiction, supervision,
and control over all waterworks and sewerage systems in the territory comprising what is now
the cities of Metro Manila and several towns of the provinces of Rizal and Cavite, and charged
with the duty:
(g) To construct, maintain, and operate such sanitary sewerages as may be
necessary for the proper sanitation and other uses of the cities and towns
comprising the System; x x x

enforcement of water quality standards in marine waters.[22] More specifically, its Bureau of
Fisheries and Aquatic Resources(BFAR) under Sec. 22(c) of RA 9275 shall primarily be
responsible for the prevention and control of water pollution for the development,
management, and conservation of the fisheries and aquatic resources.

(5) The DPWH, as the engineering and construction arm of the national government, is tasked
under EO 292 [23] to provide integrated planning, design, and construction services for, among
others, flood control and water resource development systems in accordance with national
development objectives and approved government plans and specifications.

In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metro(3) The LWUA under PD 198 has the power of supervision and control over local

wide services relating to flood control and sewerage management which include the

water districts. It can prescribe the minimum standards and regulations for the operations of

formulation and implementation of policies , standards, programs and projects for an

these districts and shall monitor and evaluate local water standards. The LWUA can direct

integrated flood control, drainage and sewerage system.

these districts to construct, operate, and furnish facilities and services for the collection,
treatment, and disposal of sewerage, waste, and storm water. Additionally, under RA 9275,

On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and

(7) When RA 6975 or the Department of the Interior and Local Government (DILG)

MMDA, whereby MMDA was made the agency primarily responsible for flood control in Metro

Act of 1990 was signed into law on December 13, 1990, the PNP Maritime Group was tasked to

Manila. For the rest of the country, DPWH shall remain as the implementing agency for flood

perform all police functions over the Philippine territorial waters and rivers. Under Sec. 86, RA

control services. The mandate of the MMDA and DPWH on flood control and drainage services

6975, the police functions of the PCG shall be taken over by the PNP when the latter acquires

shall include the removal of structures, constructions, and encroachments built along rivers,

the capability to perform such functions. Since the PNP Maritime Group has not yet attained

waterways, and esteros (drainages) in violation of RA 7279, PD 1067, and other pertinent laws.

the capability to assume and perform the police functions of PCG over marine pollution, the
PCG and PNP Maritime Group shall coordinate with regard to the enforcement of laws, rules,

(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law
of 1974, and Sec. 6 of PD 979,

[24]

and regulations governing marine pollution within the territorial waters of the Philippines. This

or the Marine Pollution Decree of 1976, shall have the

was made clear in Sec. 124, RA 8550 or the Philippine Fisheries Code of 1998, in which both

primary responsibility of enforcing laws, rules, and regulations governing marine pollution

the PCG and PNP Maritime Group were authorized to enforce said law and other fishery laws,

within the territorial waters of the Philippines. It shall promulgate its own rules and regulations

rules, and regulations.[25]

in accordance with the national rules and policies set by the National Pollution Control
Commission upon consultation with the latter for the effective implementation and
enforcement of PD 979. It shall, under Sec. 4 of the law, apprehend violators who:
a. discharge, dump x x x harmful substances from or out of any ship, vessel,
barge, or any other floating craft, or other man-made structures at sea, by
any method, means or manner, into or upon the territorial and inland
navigable waters of the Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or procure to be
thrown, discharged, or deposited either from or out of any ship, barge, or
other floating craft or vessel of any kind, or from the shore, wharf,
manufacturing establishment, or mill of any kind, any refuse matter of any
kind or description whatever other than that flowing from streets and
sewers and passing therefrom in a liquid state into tributary of any
navigable water from which the same shall float or be washed into such
navigable water; and
c. deposit x x x material of any kind in any place on the bank of any
navigable water or on the bank of any tributary of any navigable water,
where the same shall be liable to be washed into such navigable water,
either by ordinary or high tides, or by storms or floods, or otherwise,
whereby navigation shall or may be impeded or obstructed or increase the
level of pollution of such water.

(8) In accordance with Sec. 2 of EO 513, the PPA is mandated to establish, develop,
regulate, manage and operate a rationalized national port system in support of trade and
national development.[26] Moreover, Sec. 6-c of EO 513 states that the PPA has police authority
within the
ports administered by it as may be necessary to carry out its powers and
functions and attain its purposes and objectives, without prejudice to the
exercise of the functions of the Bureau of Customs and other law
enforcement bodies within the area. Such police authority shall include the
following:
xxxx
b) To regulate the entry to, exit from, and movement within the port, of
persons and vehicles, as well as movement within the port of watercraft. [27]

Lastly, as a member of the International Marine Organization and a signatory to the

International Convention for the Prevention of Pollution from Ships, as amended by MARPOL
73/78,[28] the Philippines, through the PPA, must ensure the provision of adequate reception
facilities at ports and terminals for the reception of sewage from the ships docking in
Philippine ports. Thus, the PPA is tasked to adopt such measures as are necessary to prevent

the discharge and dumping of solid and liquid wastes and other ship-generated wastes into

encroachments built in violation of RA 7279 and other applicable laws in coordination with the

the Manila Bay waters from vessels docked at ports and apprehend the violators. When the

DPWH and concerned agencies.

vessels are not docked at ports but within Philippine territorial waters, it is the PCG and PNP
Maritime Group that have jurisdiction over said vessels.

(10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code),
is tasked to promulgate rules and regulations for the establishment of waste disposal areas

(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary

that affect the source of a water supply or a reservoir for domestic or municipal use. And

landfill and solid waste and liquid disposal system as well as other alternative garbage disposal

under Sec. 8 of RA 9275, the DOH, in coordination with the DENR, DPWH, and other concerned

systems. It is primarily responsible for the implementation and enforcement of the provisions

agencies, shall formulate guidelines and standards for the collection, treatment, and disposal

of RA 9003, which would necessary include its penal provisions, within its area of

of sewage and the establishment and operation of a centralized sewage treatment system. In

[29]

jurisdiction.

areas not considered as highly urbanized cities, septage or a mix sewerage-septage

management system shall be employed.

Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently violated
are dumping of waste matters in public places, such as roads, canals or esteros, open burning

In accordance with Sec. 72 [30] of PD 856, the Code of Sanitation of the Philippines, and

of solid waste, squatting in open dumps and landfills, open dumping, burying of biodegradable

Sec. 5.1.1 [31] of Chapter XVII of its implementing rules , the DOH is also ordered to ensure the

or non- biodegradable materials in flood-prone areas, establishment or operation of open

regulation and monitoring of the proper disposal of wastes by private sludge companies

dumps as enjoined in RA 9003, and operation of waste management facilities without an

through the strict enforcement of the requirement to obtain an environmental sanitation

environmental compliance certificate.

clearance of sludge collection treatment and disposal before these companies are issued their
environmental sanitation permit.

Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or
demolition may be allowed when persons or entities occupy danger areas such as esteros,

(11) The Department of Education (DepEd), under the Philippine Environment Code

railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and other public places

(PD 1152), is mandated to integrate subjects on environmental education in its school curricula

such as sidewalks, roads, parks and playgrounds. The MMDA, as lead agency, in coordination

at all levels.[32] Under Sec. 118 of RA 8550, the DepEd, in collaboration with the DA,

with the DPWH, LGUs, and concerned agencies, can dismantle and remove all structures,

Commission on Higher Education, and Philippine Information Agency, shall launch and pursue

constructions, and other encroachments built in breach of RA 7279 and other pertinent laws

a nationwide educational campaign to promote the development, management, conservation,

along the rivers, waterways, and esteros in Metro Manila. With respect to rivers, waterways,

and proper use of the environment. Under the Ecological Solid Waste Management Act (RA

and esteros in Bulacan, Bataan, Pampanga, Cavite, and Laguna that discharge wastewater

9003), on the other hand, it is directed to strengthen the integration of environmental

directly or eventually into the Manila Bay, the DILG shall direct the concerned LGUs to

concerns in school curricula at all levels, with an emphasis on waste management principles. [33]

implement the demolition and removal of such structures, constructions, and other

(12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of

Include Cleaning in General

the Administrative Code of 1987 to ensure the efficient and sound utilization of government
funds and revenues so as to effectively achieve the countrys development objectives. [34]

One of the countrys development objectives is enshrined in RA 9275 or the Philippine Clean
Water Act of 2004. This law stresses that the State shall pursue a policy of economic growth in
a manner consistent with the protection, preservation, and revival of the quality of our fresh,
brackish, and marine waters. It also provides that it is the policy of the government, among
others, to streamline processes and procedures in the prevention, control, and abatement of
pollution mechanisms for the protection of water resources; to promote environmental
strategies and use of appropriate economic instruments and of control mechanisms for the

The disputed sections are quoted as follows:

Section 17. Upgrading of Water Quality.Where the quality of water has
deteriorated to a degree where its state will adversely affect its best usage,
the government agencies concerned shall take such measures as may be
necessary to upgrade the quality of such water to meet the prescribed
water quality standards.
Section 20. Clean-up Operations.It shall be the responsibility of the polluter
to contain, remove and clean-up water pollution incidents at his own
expense. In case of his failure to do so, the government agencies concerned
shall undertake containment, removal and clean-up operations and
expenses incurred in said operations shall be charged against the persons
and/or entities responsible for such pollution.

protection of water resources; to formulate a holistic national program of water quality

management that recognizes that issues related to this management cannot be separated
from concerns about water sources and ecological protection, water supply, public health, and
quality of life; and to provide a comprehensive management program for water pollution
focusing on pollution prevention.

When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, Cleanup
Operations, amended the counterpart provision (Sec. 20) of the Environment Code (PD 1152).
Sec. 17 of PD 1152 continues, however, to be operational.

Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble
objectives of RA 9275 in line with the countrys development objectives.

All told, the aforementioned enabling laws and issuances are in themselves clear,
categorical, and complete as to what are the obligations and mandate of each
agency/petitioner under the law. We need not belabor the issue that their tasks include the
cleanup of the Manila Bay.

Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code
encompass the cleanup of water pollution in general, not just specific pollution incidents?
Secs. 17 and 20 of the Environment Code

The amendatory Sec. 16 of RA 9275 reads:

SEC. 16. Cleanup Operations.Notwithstanding the provisions of
Sections 15 and 26 hereof, any person 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 cleanup operati ons are necessary and the polluter fails to
immediately undertake the same, the [DENR] in coordination with other
government agencies concerned, shall undertake containment, removal and
cleanup operations. Expenses incurred in said operations shall be
reimbursed by the persons found to have caused such pollution under
proper administrative determination x x x. Reimbursements of the cost
incurred shall be made to the Water Quality Management Fund or to such
other funds where said disbursements were sourced.

As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as

As may be noted, the amendment to Sec. 20 of the Environment Code is more apparent than
real since the amendment, insofar as it is relevant to this case, merely consists in the
designation of the DENR as lead agency in the cleanup operations.

delimiting the application of Sec. 20 to the containment, removal, and cleanup operations for
accidental spills only. Contrary to petitioners posture, respondents assert that Sec. 62(g), in
fact, even expanded the coverage of Sec. 20. Respondents explain that without its Sec. 62(g),
PD 1152 may have indeed covered only pollution accumulating from the day-to-day operations

Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code
concern themselves only with the matter of cleaning up in specific pollution incidents, as
opposed to cleanup in general. They aver that the twin provisions would have to be read
alongside the succeeding Sec. 62(g) and (h), which defines the terms cleanup operations and
accidental spills, as follows:
g. Clean-up Operations [refer] to activities conducted in removing
the pollutants discharged or spilled in water to restore it to prespill condition.
h.

Accidental Spills [refer] to spills of oil or other hazardous

substances in water that result from accidents such as collisions
and groundings.

of businesses around the Manila Bay and other sources of pollution that slowly accumulated in
the bay. Respondents, however, emphasize that Sec. 62(g), far from being a delimiting
provision, in fact even enlarged the operational scope of Sec. 20, by including accidental spills
as among the water pollution incidents contemplated in Sec. 17 in relation to Sec. 20 of PD
1152.

To respondents, petitioners parochial view on environmental i ssues, coupled with

their narrow reading of their respective mandated roles, has contributed to the worsening
water quality of the Manila Bay. Assuming, respondents assert, that petitioners are correct in
saying that the cleanup coverage of Sec. 20 of PD 1152 is constricted by the definition of the
phrase cleanup operations embodied in Sec. 62(g), Sec. 17 is not hobbled by such limiting

Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the
government agencies concerned to undertake containment, removal, and cleaning operations

definition. As pointed out, the phrases cleanup operations and accidental spills do not appear
in said Sec. 17, not even i n the chapter where said section is found.

of a specific polluted portion or portions of the body of water concerned. They maintain that
the application of said Sec. 20 is limited only to water pollution incidents, which are situations

Respondents are correct. For one thing, said Sec. 17 does not in any way state that

that presuppose the occurrence of specific, isolated pollution events requiring the

the government agencies concerned ought to confine themselves to the containment,

corresponding containment, removal, and cleaning operations. Pushing the point further, they

removal, and cleaning operations when a specific pollution incident occurs. On the contrary,

argue that the aforequoted Sec. 62(g) requires cleanup operations to restore the body of

Sec. 17 requires them to act even in the absence of a specific pollution incident, as long as

water to pre-spill condition, which means that there must have been a specific incident of

water quality has deteriorated to a degree where its state will adversely affect its best usage.

either intentional or accidental spillage of oil or other hazardous substances, as mentioned in

This section, to stress, commands concerned government agencies, when appropriate, to take

Sec. 62(h).

such measures as may be necessary to meet the prescribed water quality standards. In fine,
the underlying duty to upgrade the quality of water is not conditional on the occurrence of any
pollution incident.

For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that

Not to be ignored of course is the reality that the government agencies concerned

it is properly applicable to a specific situation in which the pollution is caused by polluters who

are so undermanned that it would be almost impossible to apprehend the numerous polluters

fail to clean up the mess they left behind. In such instance, the concerned government

of the Manila Bay. It may perhaps not be amiss to say that the apprehension, if any, of

agencies shall undertake the cleanup work for the polluters account. Petitioners assertion, that

the Manila Bay polluters has been few and far between. Hence, practically nobody has been

they have to perform cleanup operations in the Manila Bay only when there is a water

required to contain, remove, or clean up a given water pollution incident. In this kind of

pollution incident and the erring polluters do not undertake the containment, removal, and

setting, it behooves the Government to step in and undertake cleanup operations. Thus, Sec.

cleanup operations, is quite off mark. As earlier discussed, the complementary Sec. 17 of the

16 of RA 9275, previously Sec. 20 of PD 1152, covers for all intents and purposes a general

Environment Code comes into play and the specific duties of the agencies to clean up come in

cleanup situation.

even if there are no pollution incidents staring at them. Petitioners, thus, cannot plausibly
invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext that their

The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the

cleanup mandate depends on the happening of a specific pollution incident. In this regard,

long-term solution. The preservation of the water quality of the bay after the rehabilitation

what the CA said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at once valid

process is as important as the cleaning phase. It is imperative then that the wastes and

as it is practical. The appellate court wrote: PD 1152 aims to introduce a comprehensive

contaminants found in the rivers, inland bays, and other bodies of water be stopped from

program of environmental protection and management. This is better served by making Secs.

reaching the Manila Bay. Otherwise, any cleanup effort would just be a futile, cosmetic

[35]

exercise, for, in no time at all, the Manila Bay water quality would again deteriorate below the

17 & 20 of general application rather than limiting them to specific pollution incidents.

ideal minimum standards set by PD 1152, RA 9275, and other relevant laws. It thus behooves
Granting arguendo that petitioners position thus described vis --vis the

the Court to put the heads of the petitioner-department-agencies and the bureaus and offices

implementation of Sec. 20 is correct, they seem to have overlooked the fact that the pollution

under them on continuing notice about, and to enjoin them to perform, their mandates and

of theManila Bay is of such magnitude and scope that it is well-nigh impossible to draw the line

duties towards cleaning up the Manila Bay and preserving the quality of its water to the ideal

between a specific and a general pollution incident. And such impossibility extends to

level. Under what other judicial discipline describes as continuing mandamus, [36] the Court

pinpointing with reasonable certainty who the polluters are. We note that Sec. 20 of PD 1152

may, under extraordinary circumstances, issue directives with the end in view of ensuring that

mentions water pollution incidents which may be caused by polluters in the waters of

its decision would not be set to naught by administrative inaction or indifference. In India, the

the Manila Bay itself or by polluters in adjoining lands and in water bodies or waterways that

doctrine of continuing mandamus was used to enforce directives of the court to clean up the

empty into the bay. Sec. 16 of RA 9275, on the other hand, specifically adverts to any person

length of the Ganges River from industrial and municipal pollution. [37]

who causes pollution in or pollutes water bodies, which may refer to an ind ividual or an

The Court can take judicial notice of the presence of shanties and other unauthorized

establishment that pollutes the land mass near the Manila Bay or the waterways, such that the

structures which do not have septic tanks along the Pasig-Marikina-San Juan Rivers, the

contaminants eventually end up in the bay. In this situation, the water pollution incidents are

National Capital Region (NCR) (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-

so numerous and involve nameless and faceless polluters that they can validly be categorized

Tullahan-Tenejeros Rivers, the Meycuayan-Marilao-Obando (Bulacan) Rivers, the Talisay

as beyond the specific pollution incident level.

(Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and

connecting waterways, river banks, and esteros which discharge their waters, with all the
accompanying filth, dirt, and garbage, into the major rivers and eventually the Manila Bay. If

At this juncture, and if only to dramatize the urgency of the need for petitioners -agencies to

there is one factor responsible for the pollution of the major river systems and the Manila Bay,

comply with their statutory tasks, we cite the Asian Development Bank-commissioned study

these unauthorized structures would be on top of the list. And if the issue of illegal or

on the garbage problem in Metro Manila, the results of which are embodied in the The

unauthorized structures is not seriously addressed with sustained resolve, then practically all

Garbage Book. As there reported, the garbage crisis in the metropolitan area is as alarming as

efforts to cleanse these important bodies of water would be for naught. The DENR Secretary

it is shocking. Some highlights of the report:

[38]

said as much.

Giving urgent dimension to the necessity of removing these illegal structures is Art. 51 of PD
1067 or the Water Code,[39] which prohibits the building of structures within a given length
along banks of rivers and other waterways. Art. 51 reads:
The banks of rivers and streams and the shores of the seas and
lakes throughout their entire length and within a zone of three (3) meters
in urban areas, twenty (20) meters in agricultural areas and forty (40)
meters in forest areas, along their margins, are subject to the easement of
public use in the interest of recreation, navigation, floatage, fishing and
salvage.No person shall be allowed to stay in this zone longer than what is
necessary for recreation, navigation, floatage, fishing or salvage or to build
structures of any kind. (Emphasis added.)

1. As early as 2003, three land-filled dumpsites in Metro Manila the Payatas, Catmon and Rodriquez dumpsites - generate an alarming
quantity of lead and leachate or liquid run-off. Leachate are toxic liquids
that flow along the surface and seep into the earth and poison the surface
and groundwater that are used for drinking, aquatic life, and the
environment.
2. The high level of fecal coliform confirms the presence of a large
amount of human waste in the dump sites and surrounding areas, which is
presumably generated by households that lack alternatives to sanitation. To
say that Manila Bay needs rehabilitation is an understatement.
3. Most of the deadly leachate, lead and other dangerous
contaminants and possibly strains of pathogens seeps untreated into
ground water and runs into the Marikina and Pasig Riversystems
and Manila Bay.[40]

Judicial notice may likewise be taken of factories and other industrial establishments standing

Given the above perspective, sufficient sanitary landfills should now more than ever

along or near the banks of the Pasig River, other major rivers, and connecting waterways. But

be established as prescribed by the Ecological Solid Waste Management Act (RA 9003).

while they may not be treated as unauthorized constructions, some of these establishments

Particular note should be taken of the blatant violations by some LGUs and possibly the MMDA

undoubtedly contribute to the pollution of the Pasig River and waterways. The DILG and the

of Sec. 37, reproduced below:

Sec. 37. Prohibition against the Use of Open Dumps for Solid
Waste.No open dumps shall be established and operated, nor any practice
or disposal of solid waste by any person, including LGUs which [constitute]
the use of open dumps for solid waste, be allowed after the effectivity of
this Act: Provided, further that no controlled dumps shall be allowed (5)
years following the effectivity of this Act. (Emphasis added.)

concerned LGUs, have, accordingly, the duty to see to it that non-complying industrial
establishments set up, within a reasonable period, the necessary waste water treatment
facilities and infrastructure to prevent their industrial discharge, including their sewage waters,
from flowing into the Pasig River, other major rivers, and connecting waterways. After such
period, non-complying establishments shall be shut down or asked to transfer their
operations.

RA 9003 took effect on February 15, 2001 and the adverted grace period of five (5)
years which ended on February 21, 2006 has come and gone, but no s ingle sanitary landfill

minds to these tasks and take responsibility. This means that the State, through petitioners,
has to take the lead in the preservation and protection of the Manila Bay.

which strictly complies with the prescribed standards under RA 9003 has yet been set up.
The era of delays, procrastination, and ad hoc measures is over. Petitioners must
In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like

transcend their limitations, real or imaginary, and buckle down to work before the problem at

littering, dumping of waste matters in roads, canals, esteros, and other public places,

hand becomes unmanageable. Thus, we must reiterate that different government agencies

operation of open dumps, open burning of solid waste, and the like. Some sludge companies

and instrumentalities cannot shirk from their mandates; they must perform their basic

which do not have proper disposal facilities simply discharge sludge into the Metro Manila

functions in cleaning up and rehabilitating the Manila Bay. We are disturbed by petitioners

sewerage system that ends up in the Manila Bay. Equally unabated are violations of Sec. 27 of

hiding behind two untenable claims: (1) that there ought to be a specific pollution incident

RA 9275, which enjoins the pollution of water bodies, groundwater pollution, disposal of

before they are required to act; and (2) that the cleanup of the bay is a discretionary duty.

infectious wastes from vessels, and unauthorized transport or dumping into sea waters of
sewage or solid waste and of Secs. 4 and 102 of RA 8550 which proscribes the introduction by

RA 9003 is a sweeping piece of legislation enacted to radically transform and improve

human or machine of substances to the aquatic environment including dumping/disposal of

waste management. It implements Sec. 16, Art. II of the 1987 Constitution, which explicitly

waste and other marine litters, discharge of petroleum or residual products of petroleum of

provides that the State shall protect and advance the right of the people to a balanced and

carbonaceous materials/substances [and other] radioactive, noxious or harmful liquid, gaseous

healthful ecology in accord with the rhythm and harmony of nature.

or solid substances, from any water, land or air transport or other human-made structure.
So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced
In the light of the ongoing environmental degradation, the Court wishes to

and healthful ecology need not even be written in the Constitution for it is assumed, like other

emphasize the extreme necessity for all concerned executive departments and agencies to

civil and political rights guaranteed in the Bill of Rights, to exist from the inception of mankind

immediately act and discharge their respective official duties and obligations. Indeed, time is

and it is an issue of transcendental i mportance with intergenerational implications.[41] Even

of the essence; hence, there is a need to set timetables for the performance and completion of

assuming the absence of a categorical legal provision specifically prodding petitioners to clean

the tasks, some of them as defined for them by law and the nature of their respective offices

up the bay, they and the men and women representing them cannot escape their obligation to

and mandates.

future generations of Filipinos to keep the waters of the Manila Bay clean and clear as
humanly as possible. Anything less would be a betrayal of the trust reposed in them.

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

WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV

theManila Bay to its former splendor and bring back the plants and sea life that once thrived in

No. 76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No.

its blue waters. But the tasks ahead, daunting as they may be, could only be accomplished if

1851-99 are AFFIRMED but with MODIFICATIONS in view of subsequent developments or

those mandated, with the help and cooperation of all civic-minded individuals, would put their

supervening events in the case. The fallo of the RTC Decision shall now read:

WHEREFORE, judgment is hereby rendered ordering the abovenamed

defendant-government agencies to clean up, rehabilitate, and
preserve Manila Bay, and restore and maintain its waters to SB level (Class B
sea waters per Water Classification Tables under DENR Administrative
Order No. 34 [1990]) to make them fit for swimming, skin-diving, and other
forms of contact recreation.
In particular:

(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the
conservation, management, development, and proper use of the countrys environment and
natural resources, and Sec. 19 of RA 9275, designating the DENR as the primary government
agency responsible for its enforcement and implementation, the DENR is directed to fully
implement its Operational Plan for the Manila Bay Coastal Strategy for the rehabilitation,
restoration, and conservation of the Manila Bay at the earliest possible time. It is ordered to
call regular coordination meetings with concerned government departments and agencies to
ensure the successful implementation of the aforesaid plan of action in accordance with its
indicated completion schedules.

(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of
the Local Government Code of 1991,[42] the DILG, in exercising the Presidents power of general
supervision and its duty to promulgate guidelines in establishing waste management programs
under Sec. 43 of the Philippine Environment Code (PD 1152), shall direct all LGUs in Metro
Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all factories,
commercial establishments, and private homes along the banks of the major river systems in
their respective areas of jurisdiction, such as but not limited to the Pasig-Marikina-San Juan
Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros
Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus
(Cavite) River, the Laguna De Bay, and other minor rivers and waterways that eventually
discharge water into the Manila Bay; and the lands abutting the bay, to determine whether
they have wastewater treatment facilities or hygienic septic tanks as prescribed by existing

laws, ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to
require non-complying establishments and homes to set up said facilities or septic tanks within
a reasonable time to prevent industrial wastes, sewage water, and human wastes from flowing
into these rivers, waterways, esteros, and the Manila Bay, under pain of closure or imposition
of fines and other sanctions.

(3) As mandated by Sec. 8 of RA 9275,[43] the MWSS is directed to provide, install, operate, and
maintain the necessary adequate waste water treatment facilities in Metro Manila, Rizal, and
Cavite where needed at the earliest possible time.

(4) Pursuant to RA 9275,[44] the LWUA, through the local water districts and in
coordination with the DENR, is ordered to provide, install, operate, and maintain sewerage
and sanitation facilities and the efficient and safe collection, treatment, and disposal of sewage
in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan where needed at the
earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550,[45] the DA, through the BFAR, is ordered to improve and
restore the marine life of the Manila Bay. It is also directed to assist the LGUs in Metro Manila,
Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing, using recognized
methods, the fisheries and aquatic resources in the Manila Bay.

(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance
with Sec. 124 of RA 8550, in coordination with each other, shall apprehend violators of PD 979,
RA 8550, and other existing laws and regulations designed to prevent marine pollution in
the Manila Bay.

(7) Pursuant to Secs. 2 and 6-c of EO 513 [46] and the International Convention for the
Prevention of Pollution from Ships, the PPA is ordered to immediately adopt such measures to
prevent the discharge and dumping of solid and liquid wastes and other ship-generated wastes
into the Manila Bay waters from vessels docked at ports and apprehend the violators.

within which to set up the necessary facilities under pain of cancellation of its environmental
(8) The MMDA, as the lead agency and implementor of programs and projects for

sanitation clearance.

flood control projects and drainage services in Metro Manila, in coordination with the DPWH,
DILG, affected LGUs, PNP Maritime Group, Housing a nd Urban Development Coordinating

(10) Pursuant to Sec. 53 of PD 1152,[48] Sec. 118 of RA 8550, and Sec. 56 of RA 9003, [49] the

Council (HUDCC), and other agencies, shall dismantle and remove allstructures, constructions,

DepEd shall integrate lessons on pollution prevention, waste management, environmental

and other encroachments established or built in violation of RA 7279, and other applicable

protection, and like subjects in the school curricula of all levels to inculcate in the minds and

laws along the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the

hearts of students and, through them, their parents and friends, the importance of their duty

Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros in Metro

toward achieving and maintaining a balanced and healthful ecosystem in the Manila Bay and

Manila. The DPWH, as the principal implementor of programs and projects for flood control

the entire Philippine archipelago.

services in the rest of the country more particularly in Bulacan, Bataan, Pampanga, Cavite, and
Laguna, in coordination with the DILG, affected LGUs, PNP Maritime Group, HUDCC, and other

(11) The DBM shall consider incorporating an adequate budget in the General Appropriations

concerned government agencies, shall remove and demolish all structures, constructions, and

Act of 2010 and succeeding years to cover the expenses relating to the cleanup, restoration,

other encroachments built in breach of RA 7279 and other applicable laws along the

and preservation of the water quality of the Manila Bay, in line with the countrys development

Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite)

objective to attain economic growth in a manner consistent with the protection, preservation,

River, the Laguna De Bay, and other rivers, connecting waterways, and esteros that discharge

and revival of our marine waters.

wastewater into the Manila Bay.

(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP
Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of

In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as

continuing mandamus, shall, from finality of this Decision, each submit to the Court a quarterly

prescribed by RA 9003, within a period of one (1) year from finality of this Decision.On matters

progressive report of the activities undertaken in accordance with this Decision.

within its territorial jurisdiction and in connection with the discharge of its duties on the
maintenance of sanitary landfills and like undertakings, it is also ordered to cause the

No costs.

apprehension and filing of the appropriate criminal cases against violators of the respec tive
penal provisions of RA 9003,[47] Sec. 27 of RA 9275 (the Clean Water Act), and other existing
laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1) year
from finality of this Decision, determine if all licensed septic and sludge companies have the
proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic
tanks. The DOH shall give the companies, if found to be non-complying, a reasonable time

SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice

U.S. Supreme Court

will insist upon theoretical relations of the subject to the former sovereign and how far it will

Carino v. Insular Government, 212 U.S. 449 (1909)

recognize actual facts.

Carino v. Insular Government of the Philippine Islands

Page 212 U. S. 450

No. 72

The acquisition of the Philippines was not for the purpose of acquiring the lands occupied by
the inhabitants, and under the Organic Act of July 1, 1902, c. 1369, 32 Stat. 691, providing that

Argued January 13, 1909

property rights are to be administered for the benefit of the inhabitants, one who actually
owned land for many years cannot be deprived of it for failure to comply with certain

Decided February 23, 1909

212 U.S. 449
ERROR TO THE SUPREME COURT
OF THE PHILIPPINE ISLANDS

ceremonies prescribed either by the acts of the Philippine Commission or by Spanish law.
The Organic Act of the Philippines made a bill of rights embodying safeguards of the
Constitution, and, like the Constitution, extends those safeguards to all.
Every presumption of ownership is in favor of one actually occupying land for many years, and
against the government which seeks to deprive him of it, for failure to comply with provisions

Syllabus

of a subsequently enacted registration act.

Writ of error is the general, and appeal the exceptional, method of bringing Cases to this

Title by prescription against the crown existed under Spanish law in force in the Philippine

Court. The latter method is in the main confined to equity cases, and the former is proper to

Islands prior to their acquisition by the United States, and one occupying land in the Province

bring up a judgment of the Supreme Court of the Philippine Islands affirming a judgment of the

of Benguet for more than fifty years before the Treaty of Paris is entitled to the continued

Court of Land Registration dismissing an application for registration of land.

possession thereof.

Although a province may be excepted from the operation of Act No. 926 of 1903 of the

7 Phil. 132 reversed.

Philippine Commission which provides for the registration and perfecting of new titles, one
who actually owns property in such province is entitled to registration under Act No. 496 of
1902, which applies to the whole archipelago.
While, in legal theory and as against foreign nations, sovereignty is absolute, practically it is a
question of strength and of varying degree, and it is for a new sovereign to decide how far it

The facts are stated in the opinion.

Page 212 U. S. 455
MR. JUSTICE HOLMES delivered the opinion of the Court.

This was an application to the Philippine Court of Land Registration for the registration of

not by writ of error. We are of opinion, however, that the mode adopted was right. The

certain land. The application was granted by the court on March 4, 1904. An appeal was taken

proceeding for registration is likened to bills in equity to quiet title, but it is different in

to the Court of First Instance of the Province of Benguet on behalf of the government of the

principle. It is a proceeding in rem under a statute of the type of the Torrens Act, such as was

Philippines, and also on behalf of the United States, those governments having taken

discussed in Tyler v. Court of Registration, 175 Mass. 71. It is nearer to law than to equity, and

possession of the property for public and military purposes. The Court of First Instance found

is an assertion of legal title; but we think it unnecessary to put it into either pigeon hole. A writ

the facts and dismissed the application upon grounds of law. This judgment was affirmed by

of error is the general method of bringing cases to this Court, an appeal the exception,

the supreme court, 7 Phil. 132, and the case then was brought here by writ of error.

confined to equity in the main. There is no reason for not applying the general rule to this
case.Ormsby v. Webb, 134 U. S. 47, 134 U. S. 65; Campbell v. Porter, 162 U. S.

The material facts found are very few. The applicant and plaintiff in error is an Igorot of the

478; Metropolitan R. Co. v. District of Columbia, 195 U. S. 322.

Province of Benguet, where the land lies. For more than fifty years before the Treaty of
Page 212 U. S. 457
Page 212 U. S. 456
Another preliminary matter may as well be disposed of here. It is suggested that, even if the
Paris, April 11, 1899, as far back as the findings go, the plaintiff and his ancestors had held the

applicant have title, he cannot have it registered, because the Philippine Commission's Act No.

land as owners. His grandfather had lived upon it, and had maintained fences sufficient for the

926, of 1903, excepts the Province of Benguet among others from its operation. But that act

holding of cattle, according to the custom of the country, some of the fences, it seems, having

deals with the acquisition of new titles by homestead entries, purchase, etc., and the

been of much earlier date. His father had cultivated parts and had used parts for pasturing

perfecting of titles begun under the Spanish law. The applicant's claim is that he now owns the

cattle, and he had used it for pasture in his turn. They all had been recognized as owners by

land, and is entitled to registration under the Philippine Commission's Act No. 496, of 1902,

the Igorots, and he had inherited or received the land from his father in accordance with Igorot

which established a court for that purpose with jurisdiction "throughout the Philippine

custom. No document of title, however, had issued from the Spanish Crown, and although, in

Archipelago," 2, and authorized in general terms applications to be made by persons

1893-1894 and again in 1896-1897, he made application for one under the royal decrees then

claiming to own the legal estate in fee simple, as the applicant does. He is entitled to

in force, nothing seems to have come of it, unless, perhaps, information that lands in Benguet

registration if his claim of ownership can be maintained.

could not be conceded until those to be occupied for a sanatorium, etc., had been designated - a purpose that has been carried out by the Philippine government and the United States. In

We come, then, to the question on which the case was decided below -- namely, whether the

1901, the plaintiff filed a petition, alleging ownership, under the mortgage law, and the lands

plaintiff owns the land. The position of the government, shortly stated, is that Spain assumed,

were registered to him, that process, however, establishing only a possessory title, it is said.

asserted, and had title to all the land in the Philippines except so far as it saw fit to permit
private titles to be acquired; that there was no prescription against the Crown, and that, if

Before we deal with the merits, we must dispose of a technical point. The government has

there was, a decree of June 25, 1880, required registration within a limited time to make the

spent some energy in maintaining that this case should have been brought up by appeal, and

title good; that the plaintiff's land was not registered, and therefore became, if it was not

always, public land; that the United States succeeded to the title of Spain, and so that the

titles throughout an important part of the island of Luzon, at least, for the want of ceremonies

plaintiff has no rights that the Philippine government is bound to respect.

which the Spaniards would not have permitted and had not the power to enforce.

If we suppose for the moment that the government's contention is so far correct that the

The acquisition of the Philippines was not like the settlement of the white race in the United

Crown of Spain in form asserted a title to this land at the date of the Treaty of Paris, to which

States. Whatever consideration may have been shown to the North American Indians, the

the United States succeeded, it is not to be assumed without argument that the plaintiff's case

dominant purpose of the whites in America was to occupy the land. It is obvious that, however

is at an end. It is true that Spain, in its earlier decrees, embodied the universal feudal theory

stated, the reason for our taking over the Philippines was different. No one, we suppose,

that all lands were held from the Crown, and perhaps the general attitude of conquering

would deny that, so far as consistent with paramount necessities, our first object in the

nations toward people not recognized as entitled to the treatment accorded to those

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, 12, 32 Stat. 691, all the property

Page 212 U. S. 458

and rights acquired there by the

in the same zone of civilization with themselves. It is true also that, in legal theory, sovereignty

Page 212 U. S. 459

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

United States are to be administered "for the benefit of the inhabitants thereof." It is

Philippines, the United States asserts that Spain had such power. When theory is l eft on one

reasonable to suppose that the attitude thus assumed by the United States with regard to

side, sovereignty is a question of strength, and may vary in degree. How far a new sovereign

what was unquestionably its own is also its attitude in deciding what it will claim for its own.

shall insist upon the theoretical relation of the subjects to the head in the past, and how far it

The same statute made a bill of rights, embodying the safeguards of the Constitution, and, like

shall recognize actual facts, are matters for it to decide.

the Constitution, extends those safeguards to all. It provides that

The Province of Benguet was inhabited by a tribe that the Solicitor General, in his argument,

"no law shall be enacted in said islands which shall deprive any person of life, liberty, or

characterized as a savage tribe that never was brought under the civil or military government

property without due process of law, or deny to any person therein the equal protection of the

of the Spanish Crown. It seems probable, if not certain, that the Spanish officials would not

laws."

have granted to anyone in that province the registration to which formerly the plaintiff was
entitled by the Spanish laws, and which would have made his title beyond question good.

5. In the light of the declaration that we have quoted from 12, it is hard to believe that the

Whatever may have been the technical position of Spain, it does not follow that, in the view of

United States was ready to declare in the next breath that "any person" did not embrace the

the United States, he had lost all rights and was a mere trespasser when the present

inhabitants of Benguet, or that it meant by "property" only that which had become such by

government seized his land. The argument to that effect seems to amount to a denial of native

ceremonies of which presumably a large part of the inhabitants never had heard, and that it
proposed to treat as public land what they, by native custom and by long association -- one of
the profoundest factors in human thought -- regarded as their own.

It is true that, by 14, the government of the Philippines is empowered to enact rules and

conqueror might dictate, Congress has not yet sanctioned the same course as the proper one

prescribe terms for perfecting titles to public lands where some, but not all, Spanish conditions

"for the benefit of the inhabitants thereof."

had been fulfilled, and to issue patents to natives for not more than sixteen hectares of public
lands actually occupied by the native or his ancestors before August 13, 1898. But this section

If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof

perhaps might be satisfied if confined to cases where the occupation was of land admitted to

that it was bad by that law as to satisfy us that he does not own the land. To begin with, the

be public land, and had not continued for such a length of time and under such circumstances

older decrees and laws cited by the counsel for the plaintiff in error seem to indicate pretty

as to give rise to the understanding that the occupants were owners at that date. We hesitate

clearly that the natives were recognized as owning some lands, irrespective of any royal grant.

to suppose that it was intended to declare every native who had not a paper title a trespasser,

In other words, Spain did not assume to convert all the native inhabitants of the Philippines

and to set the claims of all the wilder tribes afloat. It is true again that there is excepted from

into trespassers, or even into tenants at will. For instance, Book 4, Title 12, Law 14 of the

the provision that we have quoted as to the administration of the property and rights acquired

Recopilacion de Leyes de las Indias, cited for a contrary conclusion in Valenton v. Murciano, 3

by the United States such land and property as shall be designated by the President for

Phil. 537, while it commands viceroys and others, when it seems proper, to call for the

military or other reservations,

exhibition of grants, directs them to confirm those who hold by good grants or justa
prescripcion. It is true that it

Page 212 U. S. 460

Page 212 U. S. 461
as this land since has been. But there still remains the question what property and rights the
United States asserted itself to have acquired.

begins by the characteristic assertion of feudal overlordship and the origin of all titles in the
King or his predecessors. That was theory and discourse. The fact was that titles were

Whatever the law upon these points may be, and we mean to go no further than the

admitted to exist that owed nothing to the powers of Spain beyond this recognition in their

necessities of decision demand, every presumption is and ought to be against the government

books.

in a case like the present. It might, perhaps, be proper and sufficient to say that when, as far
back as testimony or memory goes, the land has been held by individuals under a claim of

Prescription is mentioned again in the royal cedula of October 15, 1754, cited in 3 Phil. 546:

private ownership, it will be presumed to have been held in the same way from before the
Spanish conquest, and never to have been public land. Certainly, in a case like this, if there is
doubt or ambiguity in the Spanish law, we ought to give the applicant the benefit of the doubt.
Whether justice to the natives and the import of the organic act ought not to carry us beyond
a subtle examination of ancient texts, or perhaps even beyond the attitude of Spanish law,
humane though it was, it is unnecessary to decide. If, in a tacit way, it was assumed that the
wild tribes of the Philippines were to be dealt with as the power and inclination of the

"Where such possessors shall not be able to produce title deeds, it shall be sufficient if they
shall show that ancient possession, as a valid title by prescription."
It may be that this means possession from before 1700; but, at all events, the principle is
admitted. As prescription, even against Crown lands, was recognized by the laws of Spain, we
see no sufficient reason for hesitating to admit that it was recognized in the Philippines in
regard to lands over which Spain had only a paper sovereignty.

The question comes, however, on the decree of June 25, 1880, for the adjustment of royal

natural construction of the decree is confirmed by the report of the council of state. That

lands wrongfully occupied by private individuals in the Philippine Islands. This begins with the

report puts forward as a reason for the regulations that, in view of the condition of almost all

usual theoretic assertion that, for private ownership, there must have been a grant by

property in the Philippines, it is important to fix its status by general rules on the principle that

competent authority; but instantly descends to fact by providing that, for all legal effects,

the lapse of a fixed period legalizes completely all possession, recommends in two articles

those who have been in possession for certain times shall be deemed owners. For cultivated

twenty and thirty years, as adopted in the decree, and then suggests that interested parties

land, twenty years, uninterrupted, is enough. For uncultivated, thirty. Art. 5. So that, when this

not included in those articles may legalize their possession and acquire ownership by

decree went into effect, the applicant's father was owner of the land by the very terms of the

adjustment at a certain price.

decree. But, it is said, the object of this law was to require the adjustment or registration
proceedings that it described, and in that way to require everyone to get a document of title

It is true that the language of Articles 4 and 5 attributes title to those "who may prove"

or lose his land. That purpose may have been entertained, but it does not appear clearly to

possession for the necessary time, and we do not overlook the argument that this means may

have been applicable to all. The regulations purport to have been made "for the adjustment of

prove in registration proceedings. It may be that an English conveyancer would have

royal lands wrongfully occupied by private individuals." (We follow the translation in the

recommended an application under the foregoing decree, but certainly it was not calculated to

government's brief.) It does not appear that this land ever was royal land or wrongfully

convey to the mind of an Igorot chief the notion that ancient family possessions were in

occupied. In Article 6, it is provided that

danger, if he had read every word of it. The words "may prove" (acrediten), as well, or better,
in view of the other provisions, might be taken to mean when called upon to do so in any

"interested parties not included within the two preceding

litigation. There are indications that registration was expected from all, but none sufficient to
show that, for want of it, ownership actually gained would be lost.

Page 212 U. S. 462

Page 212 U. S. 463
articles [the articles recognizing prescription of twenty and thirty years] may legalize their
possession, and thereby acquire the full ownership of the said lands, by means of adjustment

The effect of the proof, wherever made, was not to confer title, but simply to establish it, as

proceedings, to be conducted in the following manner."

already conferred by the decree, if not by earlier law. The royal decree of February 13, 1894,
declaring forfeited titles that were capable of adjustment under the decree of 1880, for which

This seems, by its very terms, not to apply to those declared already to be owners by lapse of

adjustment had not been sought, should not be construed as a confiscation, but as the

time. Article 8 provides for the case of parties not asking an adjustment of the lands of which

withdrawal of a privilege. As a matter of fact, the applicant never was disturbed. This same

they are unlawfully enjoying the possession, within one year, and threatens that the treasury

decree is quoted by the Court of Land Registration for another recognition of the common law

"will reassert the ownership of the state over the lands," and will sell at auction such part as it

prescription of thirty years as still running against alienable Crown land.

does not reserve. The applicant's possession was not unlawful, and no attempt at any such
proceedings against him or his father ever was made. Finally, it should be noted that the

It will be perceived that the rights of the applicant under the Spanish law present a problem
not without difficulties for courts of a different legal tradition. We have deemed it proper on
that account to notice the possible effect of the change of sovereignty and the act of Congress
establishing the fundamental principles now to be observed. Upon a consideration of the
whole case, we are of opinion that law and justice require that the applicant should be granted
what he seeks, and should not be deprived of what, by the practice and belief of those among
whom he lived, was his property, through a refined interpretation of an almost forgotten law
of Spain.
Judgment reversed.

Republic of the Philippines

SUPREME COURT
Manila

IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE CONSERVATION OF

NATURAL RESOURCES, INC., intervenor.
RESO LUTI O N

EN BANC
PER CURIAM:
G.R. No. 135385

December 6, 2000

ISAGANI CRUZ and CESAR EUROPA, petitioners,

vs.
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES, SECRETARY OF BUDGET AND
MANAGEMENT and CHAIRMAN and COMMISSIONERS OF THE NATIONAL COMMISSION ON
INDIGENOUS PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI ASCARRAGA, EDTAMI
MANSAYANGAN, BASILIO WANDAG, EVELYN DUNUAN, YAOM TUGAS, ALFREMO CARPIANO,
LIBERATO A. GABIN, MATERNIDAD M. COLAS, NARCISA M. DALUPINES, BAI KIRAM-CONNIE
SATURNO, BAE MLOMO-BEATRIZ T. ABASALA, DATU BALITUNGTUNG-ANTONIO D.
LUMANDONG, DATU MANTUMUKAW TEOFISTO SABASALES, DATU EDUAARDO BANDA,
DATU JOEL UNAD, DATU RAMON BAYAAN, TIMUAY JOSE ANOY, TIMUAY MACARIO D.
SALACAO, TIMUAY EDWIN B. ENDING, DATU SAHAMPONG MALANAW VI, DATU BEN
PENDAO CABIGON, BAI NANAPNAY-LIZA SAWAY, BAY INAY DAYA-MELINDA S. REYMUNDO,
BAI TINANGHAGA HELINITA T. PANGAN, DATU MAKAPUKAW ADOLINO L. SAWAY, DATU
MAUDAYAW-CRISPEN SAWAY, VICKY MAKAY, LOURDES D. AMOS, GILBERT P. HOGGANG,
TERESA GASPAR, MANUEL S. ONALAN, MIA GRACE L. GIRON, ROSEMARIE G. PE, BENITO
CARINO, JOSEPH JUDE CARANTES, LYNETTE CARANTES-VIVAL, LANGLEY SEGUNDO, SATUR S.
BUGNAY, CARLING DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO ABUGAN, VIRGILIO
CAYETANO, CONCHITA G. DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ, RODOLFO C.
AGUILAR, MAURO VALONES, PEPE H. ATONG, OFELIA T. DAVI, PERFECTO B. GUINOSAO,
WALTER N. TIMOL, MANUEL T. SELEN, OSCAR DALUNHAY, RICO O. SULATAN, RAFFY
MALINDA, ALFREDO ABILLANOS, JESSIE ANDILAB, MIRLANDO H. MANGKULINTAS, SAMIE
SATURNO, ROMEO A. LINDAHAY, ROEL S. MANSANG-CAGAN, PAQUITO S. LIESES, FILIPE G.
SAWAY, HERMINIA S. SAWAY, JULIUS S. SAWAY, LEONARDA SAWAY, JIMMY UGYUB,
SALVADOR TIONGSON, VENANCIO APANG, MADION MALID, SUKIM MALID, NENENG MALID,
MANGKATADONG AUGUSTO DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO
MANGCAL, FELAY DIAMILING, SALOME P. SARZA, FELIPE P. BAGON, SAMMY SALNUNGAN,
ANTONIO D. EMBA, NORMA MAPANSAGONOS, ROMEO SALIGA, SR., JERSON P. GERADA,
RENATO T. BAGON, JR., SARING MASALONG, SOLEDAD M. GERARDA, ELIZABETH L. MENDI,
MORANTE S. TIWAN, DANILO M. MALUDAO, MINORS MARICEL MALID, represented by her
father CORNELIO MALID, MARCELINO M. LADRA, represented by her father MONICO D.
LADRA, JENNYLYN MALID, represented by her father TONY MALID, ARIEL M. EVANGELISTA,
represented by her mother LINAY BALBUENA, EDWARD M. EMUY, SR., SUSAN BOLANIO,
OND, PULA BATO B'LAAN TRIBAL FARMER'S ASSOCIATION, INTER-PEOPLE'S EXCHANGE, INC.
and GREEN FORUM-WESTERN VISAYAS,intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.

Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and mandamus as
citizens and taxpayers, assailing the constitutionality of certain provisions of Republic Act No.
8371 (R.A. 8371), otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA), and its
Implementing Rules and Regulations (Implementing Rules).
In its resolution of September 29, 1998, the Court required respondents to comment. 1 In
compliance, respondents Chairperson and Commissioners of the National Commission on
Indigenous Peoples (NCIP), the government agency created under the IPRA to implement its
provisions, filed on October 13, 1998 their Comment to the Petition, in which they defend the
constitutionality of the IPRA and pray that the petition be dismissed for lack of merit.
On October 19, 1998, respondents Secretary of the Department of Environment and Natural
Resources (DENR) and Secretary of the Department of Budget and Management (DBM) filed
through the Solicitor General a consolidated Comment. The Solicitor General is of the view
that the IPRA is partly unconstitutional on the ground that it grants ownership over natural
resources to indigenous peoples and prays that the petition be granted in part.
On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, one of the
authors of the IPRA, Mr. Ponciano Bennagen, a member of the 1986 Constitutional
Commission, and the leaders and members of 112 groups of indigenous peoples (Flavier, et.
al), filed their Motion for Leave to Intervene. They join the NCIP in defending the
constitutionality of IPRA and praying for the dismissal of the petition.
On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a Motion to
Intervene and/or to Appear as Amicus Curiae. The CHR asserts that IPRA is an expression of
the principle of parens patriae and that the State has the responsibility to protect and
guarantee the rights of those who are at a serious disadvantage like indigenous peoples. For
this reason it prays that the petition be dismissed.
On March 23, 1999, another group, composed of the Ikalahan Indigenous People and the
Haribon Foundation for the Conservation of Natural Resources, Inc. (Haribon, et al.), filed a
motion to Intervene with attached Comment-in-Intervention. They agree with the NCIP and
Flavier, et al. that IPRA is consistent with the Constitution and pray that the petition for
prohibition and mandamus be dismissed.
The motions for intervention of the aforesaid groups and organizations were granted.

Oral arguments were heard on April 13, 1999. Thereafter, the parties and intervenors filed
their respective memoranda in which they reiterate the arguments adduced in their earlier
pleadings and during the hearing.

involving ancestral domains and ancestral lands on the ground that these provisions violate
the due process clause of the Constitution.4
These provisions are:

Petitioners assail the constitutionality of the following provisions of the IPRA and its
Implementing Rules on the ground that they amount to an unlawful deprivation of the States
ownership over lands of the public domain as well as minerals and other natural resources
therein, in violation of the regalian doctrine embodied in Section 2, Article XII of the
Constitution:
"(1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b)
which, in turn, defines ancestral lands;
"(2) Section 5, in relation to section 3(a), which provides that ancestral domains including
inalienable public lands, bodies of water, mineral and other resources found within ancestral
domains are private but community property of the indigenous peoples;
"(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral
domains and ancestral lands;
"(4) Section 7 which recognizes and enumerates the rights of the indigenous peoples over the
ancestral domains;
(5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the
ancestral lands;
"(6) Section 57 which provides for priority rights of the indigenous peoples in the harvesting,
extraction, development or exploration of minerals and other natural resources within the
areas claimed to be their ancestral domains, and the right to enter into agreements with
nonindigenous peoples for the development and utilization of natural resources therein for a
period not exceeding 25 years, renewable for not more than 25 years; and
"(7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop,
protect and conserve the ancestral domains and portions thereof which are found to be
necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas,
forest cover or reforestation."2
Petitioners also content that, by providing for an all-encompassing definition of "ancestral
domains" and "ancestral lands" which might even include private lands found within said
areas, Sections 3(a) and 3(b) violate the rights of private landowners.3
In addition, petitioners question the provisions of the IPRA defining the powers and
jurisdiction of the NCIP and making customary law applicable to the settlement of disputes

"(1) sections 51 to 53 and 59 which detail the process of delineation and recognition
of ancestral domains and which vest on the NCIP the sole authority to delineate
ancestral domains and ancestral lands;
"(2) Section 52[i] which provides that upon certification by the NCIP that a particular
area is an ancestral domain and upon notification to the following officials, namely,
the Secretary of Environment and Natural Resources, Secretary of Interior and Local
Governments, Secretary of Justice and Commissioner of the National Development
Corporation, the jurisdiction of said officials over said area terminates;
"(3) Section 63 which provides the customary law, traditions and practices of
indigenous peoples shall be applied first with respect to property rights, claims of
ownership, hereditary succession and settlement of land disputes, and that any
doubt or ambiguity in the interpretation thereof shall be resolved in favor of the
indigenous peoples;
"(4) Section 65 which states that customary laws and practices shall be used to
resolve disputes involving indigenous peoples; and
"(5) Section 66 which vests on the NCIP the jurisdiction over all claims and disputes
involving rights of the indigenous peoples."5
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP Administrative
Order No. 1, series of 1998, which provides that "the administrative relationship of the NCIP to
the Office of the President is characterized as a lateral but autonomous relationship for
purposes of policy and program coordination." They contend that said Rule infringes upon the
Presidents power of control over executive departments under Section 17, Article VII of the
Constitution.6
Petitioners pray for the following:
"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and other
related provisions of R.A. 8371 are unconstitutional and invalid;
"(2) The issuance of a writ of prohibition directing the Chairperson and
Commissioners of the NCIP to cease and desist from implementing the assailed
provisions of R.A. 8371 and its Implementing Rules;

"(3) The issuance of a writ of prohibition di recting the Secretary of the Department of
Environment and Natural Resources to cease and desist from implementing
Department of Environment and Natural Resources Circular No. 2, series of 1998;
"(4) The issuance of a writ of prohibition directing the Secretary of Budget and
Management to cease and desist from disbursing public funds for the
implementation of the assailed provisions of R.A. 8371; and
"(5) The issuance of a writ of mandamus commanding the Secretary of Environment
and Natural Resources to comply with his duty of carrying out the States
constitutional mandate to control and supervise the exploration, development,
utilization and conservation of Philippine natural resources."7

SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago,
and De Leon, Jr., JJ., concur.
Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate opinion

Footnotes
1

Rollo, p. 114.

After due deliberation on the petition, the members of the Court voted as follows:

Petition, Rollo, pp. 16-23.

Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief
Justice and Justices Bellosillo, Quisumbing, and Santiago join, sustaining the validity of the
challenged provisions of R.A. 8371. Justice Puno also filed a separate opinion sustaining all
challenged provisions of the law with the exception of Section 1, Part II, Rule III of NCIP
Administrative Order No. 1, series of 1998, the Rules and Regulations Implementing the IPRA,
and Section 57 of the IPRA which he contends should be interpreted as dealing with the largescale exploitation of natural resources and should be read in conjunction with Section 2,
Article XII of the 1987 Constitution. On the other hand, Justice Mendoza voted to dismiss the
petition solely on the ground that it does not raise a justiciable controversy and petitioners do
not have standing to question the constitutionality of R.A. 8371.

Id. at 23-25.

Seven (7) other members of the Court voted to grant the petition. Justice Panganiban filed a
separate opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related
provisions of R.A. 8371 are unconstitutional. He reserves judgment on the constitutionality of
Sections 58, 59, 65, and 66 of the law, which he believes must await the filing of specific cases
by those whose rights may have been violated by the IPRA. Justice Vitug also filed a separate
opinion expressing the view that Sections 3(a), 7, and 57 of R.A. 8371 are unconstitutional.
Justices Melo, Pardo, Buena, Gonzaga-Reyes, and De Leon join in the separate opinions of
Justices Panganiban and Vitug.
As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the
case was redeliberated upon. However, after redeliberation, the voting remained the same.
Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is
DISMISSED.
Attached hereto and made integral parts thereof are the separate opinions of Justices Puno,
Vitug, Kapunan, Mendoza, and Panganiban.

Section 1, Article III of the Constitution states: "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."
5

Rollo, pp. 25-27.

Id. at 27-28.

Transcript of Stenographic Notes of the hearing held on April 13, 1999, pp. 5-6.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION
PUNO, J.:
PRECIS
A classic essay on the utility of history was written in 1874 by Friedrich Nietzsche entitled "On
the Uses and Disadvantages of History for Life." Expounding on Nietzsche's essay, Judge
Richard Posner1 wrote:2

"Law is the most historically oriented, or if you like the most backward-looking, the most 'pastdependent,' of the professions. It venerates tradition, precedent, pedigree, ritual, custom,
ancient practices, ancient texts, archaic terminology, maturity, wisdom, seniority,
gerontocracy, and interpretation conceived of as a method of recovering history. I t is
suspicious of innovation, discontinuities, 'paradigm shifts,' and the energy and brashness of
youth. These ingrained attitudes are obstacles to anyone who wants to re-orient law in a more
pragmatic direction. But, by the same token, pragmatic jurisprudence must come to terms
with history."
When Congress enacted the Indigenous Peoples Rights Act (IPRA), it
introduced radical concepts into the Philippine legal system which appear to collide with
settled constitutional and jural precepts on state ownership of land and other natural
resources. The sense and subtleties of this law cannot be appreciated without considering its
distinct sociology and the labyrinths of its history. This Opinion attempts to interpret IPRA by
discovering its soul shrouded by the mist of our history. After all, the IPRA was enacted by
Congress not only to fulfill the constitutional mandate of protecting the indigenous cultural
communities' right to their ancestral land but more importantly, to correct a grave historical
injustice to our indigenous people.
This Opinion discusses the following:
I. The Development of the Regalian Doctrine in the Philippine Legal System.
A. The Laws of the Indies

IV. The Provisions of the IPRA Do Not Contravene the Constitution.

A. Ancestral domains and ancestral lands are the private property of indigenous
peoples and do not constitute part of the land of the public domain.
1. The right to ancestral domains and ancestral lands: how acquired
2. The concept of native title
(a) Cario v. Insular Government
(b) Indian Title to land
(c) Why the Cario doctrine is unique
3. The option of securing a torrens title to the ancestral land
B. The right of ownership and possession by the ICCs/IPs to their ancestral domains is
a limited form of ownership and does not include the right to alienate the same.
1. The indigenous concept of ownership and customary law
C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the Regalian Doctrine
enshrined in Section 2, Article XII of the 1987 Constitution.

B. Valenton v. Murciano
1. The rights of ICCs/IPs over their ancestral domains and lands
C. The Public Land Acts and the Torrens System
D. The Philippine Constitutions

2. The right of ICCs/IPs to develop lands and natural resources within the
ancestral domains does not deprive the State of ownership over the natural
resources, control and supervision in their development and exploitation.

II. The Indigenous Peoples Rights Act (IPRA).

A. Indigenous Peoples

(a) Section 1, Part II, Rule III of the Implementing Rules goes
beyond the parameters of Section 7(a) of the law on ownership of
ancestral domains and is ultra vires.

1. Indigenous Peoples: Their History

2. Their Concept of Land
III. The IPRA is a Novel Piece of Legislation.
A. Legislative History

(b) The small-scale utilization of natural resources in Section 7 (b)

of the IPRA is allowed under Paragraph 3, Section 2, Article XII of
the 1987 Consitution.
(c) The large-scale utilization of natural resources in Section 57 of
the IPRA may be harmonized with Paragraphs 1 and 4, Section 2,
Article XII of the 1987 Constitution.

V. The IPRA is a Recognition of Our Active Participation in the International Indigenous

Movement.
DISCUSSION
I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE PHILIPPINE LEGAL SYSTEM.
A. The Laws of the Indies
The capacity of the State to own or acquire property is the state's power of dominium.3 This
was the foundation for the early Spanish decrees embracing the feudal theory of jura regalia.
The "Regalian Doctrine" or jura regaliais a Western legal concept that was first introduced by
the Spaniards into the country through the Laws of the Indies and the Royal Cedulas. The
Laws of the Indies, i.e., more specifically, Law 14, Title 12, Book 4 of the Novisima Recopilacion
de Leyes de las Indias, set the policy of the Spanish Crown with respect to the Philippine
Islands in the following manner:
"We, having acquired full sovereignty over the Indies, and all lands, territories, and possessions
not heretofore ceded away by our royal predecessors, or by us, or in our name, still pertaining
to the royal crown and patrimony, it is our will that all lands which are held without proper
and true deeds of grant be restored to us as they belong to us, in order that after reserving
before all what to us or to our viceroys, audiencias, and governors may seem necessary for
public squares, ways, pastures, and commons in those places which are peopled, taking into
consideration not only their present condition, but also their future and their probable
increase, and after distributing to the natives what may be necessary for tillage and pasturage,
confirming them in what they now have and giving them more if necessary, all the rest of said
lands may remain free and unencumbered for us to dispose of as we may wish.
We therefore order and command that all viceroys and presidents of pretorial courts
designate at such time as shall to them seem most expedient, a suitable period within which
all possessors of tracts, farms, plantations, and estates shall exhibit to them and to the court
officers appointed by them for this purpose, their title deeds thereto. And those who are in
possession by virtue of proper deeds and receipts, or by virtue of just prescriptive right shall be
protected, and all the rest shall be restored to us to be disposed of at our will." 4
The Philippines passed to Spain by virtue of "discovery" and conquest. Consequently, all lands
became the exclusive patrimony and dominion of the Spanish Crown. The Spanish Government
took charge of distributing the lands by issuing royal grants and concessions to Spa niards, both
military and civilian.5 Private land titles could only be acquired from the government either by
purchase or by the various modes of land grant from the Crown.6
The Laws of the Indies were followed by the Ley Hipotecaria, or the Mortgage Law of
1893.7 The Spanish Mortgage Law provided for the systematic registration of titles and deeds

as well as possessory claims. The law sought to register and tax lands pursuant to the Royal
Decree of 1880. The Royal Decree of 1894, or the "Maura Law," was partly an amendment of
the Mortgage Law as well as the Laws of the Indies, as already amended by previous orders
and decrees.8 This was the last Spanish land law promulgated in the Philippines. It required the
"adjustment" or registration of all agricultural lands, otherwise the lands shall revert to the
state.
Four years later, by the Treaty of Paris of December 10, 1898, Spain ceded to the government
of the United States all rights, interests and claims over the national territory of the Philippine
Islands. In 1903, the United States colonial government, through the Philippine Commission,
passed Act No. 926, the first Public Land Act.
B. Valenton v. Murciano
In 1904, under the American regime, this Court decided the case of Valenton v. Murciano.9
Valenton resolved the question of which is the better basis for ownership of land: long-time
occupation or paper title. Plaintiffs had entered into peaceful occupation of the subject land in
1860. Defendant's predecessor-in-interest, on the other hand, purchased the land from the
provincial treasurer of Tarlac in 1892. The lower court ruled against the plaintiffs on the
ground that they had lost all rights to the land by not objecting to the administrative sale.
Plaintiffs appealed the judgment, asserting that their 30-year adverse possession, as an
extraordinary period of prescription in the Partidas and the Civil Code, had given them title to
the land as against everyone, including the State; and that the State, not owning the land,
could not validly transmit it.
The Court, speaking through Justice Willard, decided the case on the basis of "those special
laws which from earliest time have regulated the disposition of the public lands in the
colonies."10 The question posed by the Court was: "Did these special laws recognize any right
of prescription as against the State as to these lands; and if so, to what extent was it
recognized?"
Prior to 1880, the Court said, there were no laws specifically providing for the disposition of
land in the Philippines. However, it was understood that in the absence of any special law to
govern a specific colony, the Laws of the Indies would be followed. Indeed, in the Royal Order
of July 5, 1862, it was decreed that until regulations on the subject could be prepared, the
authorities of the Philippine Islands should follow strictly the Laws of the Indies,
theOrdenanza of the Intendentes of 1786, and the Royal Cedula of 1754.11
Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion de Leyes de las Indias,
the court interpreted it as follows:

"In the preamble of this law there is, as is seen, a distinct statement that a ll those lands belong
to the Crown which have not been granted by Philip, or in his name, or by the kings who
preceded him. This statement excludes the idea that there might be lands not so granted,
that did not belong to the king. It excludes the idea that the king was not still the owner of
all ungranted lands, because some private person had been in the adverse occupation of
them. By the mandatory part of the law all the occupants of the public lands are required to
produce before the authorities named, and within a time to be fixed by them, their title
papers. And those who had good title or showed prescription were to be protected in their
holdings. It is apparent that it was not the intention of the law that mere possession for a
length of time should make the possessors the owners of the land possessed by them without
any action on the part of the authorities."12
The preamble stated that all those lands whi ch had not been granted by Philip, or in his name,
or by the kings who preceded him, belonged to the Crown.13 For those lands granted by the
king, the decree provided for a system of assignment of such lands. It also ordered that all
possessors of agricultural land should exhibit their title deed, otherwise, the land would be
restored to the Crown.14
The Royal Cedula of October 15, 1754 reinforced the Recopilacion when it ordered the
Crown's principal subdelegate to issue a general order directing the publication of the Crown's
instructions:
"x x x to the end that any and all persons who, since the year 1700, and up to the date of the
promulgation and publication of said order, shall have occupied royal lands, whether or not x x
x cultivated or tenanted, may x x x appear and exhibit to said subdelegates the titles and
patents by virtue of which said lands are occupied. x x x. Said subdelegates will at the same
time warn the parties interested that in case of their failure to present their title deeds within
the term designated, without a just and valid reason therefor, they will be deprived of and
evicted from their lands, and they will be granted to others."15
On June 25, 1880, the Crown adopted regulations for the adjustment of lands "wrongfully
occupied" by private individuals in the Philippine Islands. Valenton construed these
regulations together with contemporaneous legislative and executive interpretations of the
law, and concluded that plaintiffs' case fared no better under the 1880 decree and other laws
which followed it, than it did under the earlier ones. Thus as a general doctrine, the Court
stated:
"While the State has always recognized the right of the occupant to a deed if he proves a
possession for a sufficient length of time, yet it has always insisted that he must make that
proof before the proper administrative officers, and obtain from them his deed, and until he
did that the State remained the absolute owner."16

In conclusion, the Court ruled: "We hold that from 1860 to 1892 there was no law in force in
these Islands by which the plaintiffs could obtain the ownership of these lands by prescription,
without any action by the State."17Valenton had no rights other than those which accrued to
mere possession. Murciano, on the other hand, was deemed to be the owner of the land by
virtue of the grant by the provincial secretary. In effect, Valenton upheld the Spanish concept
of state ownership of public land.
As a fitting observation, the Court added that "[t]he policy pursued by the Spanish
Government from earliest times, requiring settlers on the public lands to obtain title deeds
therefor from the State, has been continued by the American Government in Act No. 926."18
C. The Public Land Acts and the Torrens System
Act No. 926, the first Public Land Act, was passed in pursuance of the provisions of the the
Philippine Bill of 1902. The law governed the disposition of lands of the public domain. It
prescribed rules and regulations for the homesteading, selling, and leasing of portions of the
public domain of the Philippine Islands, and prescribed the terms and conditions to enable
persons to perfect their titles to public lands in the Islands. It also provided for the "issuance of
patents to certain native settlers upon public lands," for the establishment of town sites and
sale of lots therein, for the completion of imperfect titles, and for the cancellation or
confirmation of Spanish concessions and grants in the Islands." I n short, the Public Land Act
operated on the assumption that title to public lands in the Philippine Islands remained in the
government;19 and that the government's title to public land sprung from the Treaty of Paris
and other subsequent treaties between Spain and the United States.20 The term "public land"
referred to all lands of the public domain whose title still remained in the government and are
thrown open to private appropriation and settlement,21 and excluded the patrimonial property
of the government and the friar lands.22
Act No. 926 was superseded in 1919 by Act 2874, the second Public Land Act. This new law
was passed under the Jones Law. It was more comprehensive in scope but limited the
exploitation of agricultural lands to Filipinos and Americans and citizens of other countries
which gave Filipinos the same privileges.23 After the passage of the 1935 Constitution, Act 2874
was amended in 1936 by Commonwealth Act No. 141. Commonwealth Act No. 141 remains
the present Public Land Law and it is essentially the same as Act 2874. The main difference
between the two relates to the transitory provisions on the rights of American citizens and
corporations during the Commonwealth period at par with Filipino citizens and corporations. 24
Grants of public land were brought under the operation of the Torrens system under Act
496, or the Land Registration Law of 1903. Enacted by the Philippine Commission, Act 496
placed all public and private lands in the Philippines under the Torrens system. The law is said
to be almost a verbatim copy of the Massachussetts Land Registration Act of 1898, 25 which, in
turn, followed the principles and procedure of the Torrens system of registration formulated
by Sir Robert Torrens who patterned it after the Merchant Shipping Acts in South Australia.
The Torrens system requires that the government issue an official certificate of title attesting

to the fact that the person named is the owner of the property described therein, subject to
such liens and encumbrances as thereon noted or the law warrants or reserves. 26 The
certificate of title is indefeasible and imprescriptible and all claims to the parcel of land are
quieted upon issuance of said certificate. This system highly facilitates land conveyance and
negotiation.27

alienated, and no license, concession, or lease for the exploration, development,

exploitation, or utilization of any of the natural resources shall be granted for a period
exceeding twenty-five years, renewable for not more than 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."

D. The Philippine Constitutions

The Regalian doctrine was enshrined in the 1935 Constitution. One of the fixed and
dominating objectives of the 1935 Constitutional Convention was the nationalization and
conservation of the natural resources of the country.28 There was an overwhelming sentiment
in the Convention in favor of the principle of state ownership of natural resources and the
adoption of the Regalian doctrine.29 State ownership of natural resources was seen as a
necessary starting point to secure recognition of the state's power to control their disposition,
exploitation, development, or utilization.30 The delegates to the Constitutional Convention
very well knew that the concept of State ownership of land and natural resources was
introduced by the Spaniards, however, they were not certain whether it was continued and
applied by the Americans. To remove all doubts, the Convention approved the provision in the
Constitution affirming the Regalian doctrine.31
Thus, the 1935 Constitution, in Section 1 of Article XIII on "Conservation and Utilization of
Natural Resources," reads as follows:
"Sec. 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, 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 1973 Constitution reiterated the Regalian doctrine in Section 8, Article XIV on the
"National Economy and the Patrimony of the Nation," to wit:
"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the
Philippines belong to the State. With the exception of agricultural, industrial or commercial,
residential, and resettlement lands of the public domain, natural resources shall not be

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 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.
x x x."
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. It is this concept of State
ownership that petitioners claim is being violated by the IPRA.
II. THE INDIGENOUS PEOPLES RIGHTS ACT.
Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the Rights of
Indigenous Cultural Communities/ Indigenous Peoples, Creating a National Commission on
Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds Therefor,
and for Other Purposes." It is simply known as "The Indigenous Peoples Rights Act of 1997"
or the IPRA.
The IPRA recognizes the existence of the indigenous cultural communities or indigenous
peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the
ownership and possession of their ancestral domains and ancestral lands, and defines the
extent of these lands and domains. The ownership given is the indigenous concept of
ownership under customary law which traces its origin to native title.

Other rights are also granted the ICCs/IPs, and these are:

powers.39 The NCIP's decisions may be appealed to the Court of Appeals by a petition for
review.

- the right to develop lands and natural resources;

- the right to stay in the territories;
- the right in case of displacement;
- the right to safe and clean air and water;
- the right to claim parts of reservations;
- the right to resolve conflict;32
- the right to ancestral lands which include

Any person who violates any of the provisions of the Act such as, but not limited to,
unauthorized and/or unlawful intrusion upon ancestral lands and domains shall be punished in
accordance with customary laws or imprisoned from 9 months to 12 years and/or fined
from P100,000.00 to P500,000.00 and obliged to pay damages.40
A. Indigenous Peoples
The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural
Communities (ICCs) or the Indigenous Peoples (IPs). The term "ICCs" is used in the 1987
Constitution while that of "IPs" is the contemporary international language in the International
Labor Organization (ILO) Convention 169 41 and the United Nations (UN) Draft Declaration on
the Rights of Indigenous Peoples.42
ICCs/IPs are defined by the IPRA as:

a. the right to transfer land/property to/among members of the same

ICCs/IPs, subject to customary laws and traditions of the community
concerned;
b. the right to redemption for a period not exceeding 15 years from date of
transfer, if the transfer is to a non-member of the ICC/IP and is tainted by
vitiated consent of the ICC/IP, or if the transfer is for an unconscionable
consideration.33
Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to selfgovernance and empowerment,34 social justice and human rights,35 the right to preserve and
protect their culture, traditions, institutions and community intellectual rights, and the right to
develop their own sciences and technologies.36
To carry out the policies of the Act, the law created the National Commission on Indigenous
Peoples (NCIP). The NCIP is an independent agency under the Office of the President and is
composed of seven (7) Commissioners belonging to ICCs/IPs from each of the ethnographic
areas- Region I and the Cordilleras; Region II; the rest of Luzon; Island groups including
Mindoro, Palawan, Romblon, Panay and the rest of the Visayas; Northern and Western
Mindanao; Southern and Eastern Mindanao; and Central Mindanao.37 The NCIP took over the
functions of the Office for Northern Cultural Communities and the Office for Southern Cultural
Communities created by former President Corazon Aquino which were merged under a
revitalized structure.38
Disputes involving ICCs/IPs are to be resolved under customary laws and practices. When still
unresolved, the matter may be brought to the NCIP, which is granted quasi-judicial

"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples- refer to a group of people or
homogeneous societies identified by self-ascription and ascription by others, who have
continuously lived as organized community on communally bounded and defined territory,
and who have, under claims of ownership since time immemorial, occupied, possessed and
utilized such territories, sharing common bonds of language, customs, traditions and other
distinctive cultural traits, or who have, through resistance to political, social and cultural
inroads of colonization, non-indigenous religions and cultures, became historically
differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples who are
regarded as indigenous on account of their descent from the populations which inhabited the
country, at the time of conquest or colonization, or at the time of inroads of non-indigenous
religions and cultures, or the establishment of present state boundaries, who retain some or
all of their own social, economic, cultural and political institutions, but who may have been
displaced from their traditional domains or who may have resettled outside their ancestral
domains."
Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or
homogeneous societies who have continuously lived as an organized community on
communally bounded and defined territory. These groups of people have actually occupied,
possessed and utilized their territories under claim of ownership since time immemorial. They
share common bonds of language, customs, traditions and other distinctive cultural traits, or,
they, by their resistance to political, social and cultural inroads of colonization, non-indigenous
religions and cultures, became historically differentiated from the Filipino majority. ICCs/IPs
also include descendants of ICCs/IPs who inhabited the country at the time of conquest or
colonization, who retain some or all of their own social, economic, cultural and political

institutions but who may have been displaced from their traditional territories or who may
have resettled outside their ancestral domains.
1. Indigenous Peoples: Their History
Presently, Philippine indigenous peoples inhabit the interiors and mountains of Luzon,
Mindanao, Mindoro, Negros, Samar, Leyte, and the Palawan and Sulu group of islands. They
are composed of 110 tribes and are as follows:
1. In the Cordillera Autonomous Region- Kankaney, Ibaloi, Bontoc, Tinggian or Itneg,
Ifugao, Kalinga, Yapayao, Aeta or Agta or Pugot, and Bago of Ilocos Norte and
Pangasinan; Ibanag of Isabela, Cagayan; Ilongot of Quirino and Nueva Vizcaya;
Gaddang of Quirino, Nueva Vizcaya, Itawis of Cagayan; Ivatan of Batanes, Aeta of
Cagayan, Quirino and Isabela.
2. In Region III- Aetas.
3. In Region IV- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal, Quezon;
Alangan or Mangyan, Batangan, Buid or Buhid, Hanunuo and Iraya of Oriental and
Occidental Mindoro; Tadyawan of Occidental Mindoro; Cuyonon, Palawanon,
Tagbanua and Tao't bato of Palawan.
4. In Region V- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan, Isarog, and
Kabihug of Camarines Norte; Agta, and Mayon of Camarines Sur; Itom of Albay,
Cimaron of Sorsogon; and the Pullon of Masbate and Camarines Sur.
5. In Region VI- Ati of Negros Occidental, Iloilo and Antique, Capiz; the Magahat of
Negros Occidental; the Corolano and Sulod.
6. In Region VII- Magahat of Negros Oriental and Eskaya of Bohol.
7. In Region IX- the Badjao numbering about 192,000 in Tawi-Tawi, Zamboanga del
Sur; the Kalibugan of Basilan, the Samal, Subanon and Yakat.
8. Region X- Numbering 1.6 million in Region X alone, the IPs are: the Banwaon,
Bukidnon, Matigsalog, Talaanding of Bukidnon; the Camiguin of Camiguin Island; the
Higa-unon of Agusan del Norte, Agusan del Sur, Bukidnon and Misamis Occidental;
the Tigwahanon of Agusan del Sur, Misamis Oriental and and Misamis Occidental, the
Manobo of the Agusan provinces, and the Umayamnon of Agusan and Bukidnon.
9. In Region XI- There are about 1,774,065 IPs in Region XI. They are tribes of the
Dibabaon, Mansaka of Davao del Norte; B'laan, Kalagan, Langilad, T'boli and

Talaingod of Davao del Sur; Mamamanua of Surigao del Sur; Mandaya of the Surigao
provinces and Davao Oriental; Manobo Blit of South Cotabato; the Mangguangon of
Davao and South Cotabato; Matigsalog of Davao del Norte and Del Sur; Tagakaolo,
Tasaday and Ubo of South Cotabato; and Bagobo of Davao del sur and South
Cotabato.
10. In Region XII- Ilianen, Tiruray, Maguindanao, Maranao, Tausug, Yakan/Samal, and
Iranon.43
How these indigenous peoples came to live in the Philippines goes back to as early as 25,000
to 30,000 B.C.
Before the time of Western contact, the Philippine archipelago was peopled largely by the
Negritos, Indonesians and Malays.44 The strains from these groups eventually gave rise to
common cultural features which became the dominant influence in ethnic reformulation in the
archipelago. Influences from the Chinese and Indian civilizations in the third or fourth
millenium B.C. augmented these ethnic strains. Chinese economic and socio-cultural influences
came by way of Chinese porcelain, silk and traders. Indian influence found their way into the
religious-cultural aspect of pre-colonial society.45
The ancient Filipinos settled beside bodies of water. Hunting and food gathering became
supplementary activities as reliance on them was reduced by fishing and the cultivation of the
soil.46 From the hinterland, coastal, and riverine communities, our ancestors evolved an
essentially homogeneous culture, a basically common way of life where nature was a primary
factor. Community life throughout the archipelago was influenced by, and responded to,
common ecology. The generally benign tropical climate and the largely uniform flora and fauna
favored similarities, not differences.47 Life was essentially subsistence but not harsh.48
The early Filipinos had a culture that was basically Malayan in structure and form. They had
languages that traced their origin to the Austronesian parent-stock and used them not only as
media of daily communication but also as vehicles for the expression of their literary
moods.49 They fashioned concepts and beliefs about the world that they could not see, but
which they sensed to be part of their lives.50 They had their own religion and religious beliefs.
They believed in the immortality of the soul and life after death. Their rituals were based on
beliefs in a ranking deity whom they called Bathalang Maykapal, and a host of other deities, in
the environmental spirits and in soul spirits. The early Filipinos adored the sun, the moon, the
animals and birds, for they seemed to consider the objects of Nature as something to be
respected. They venerated almost any object that was close to their daily life, indicating the
importance of the relationship between man and the object of nature.51
The unit of government was the "barangay," a term that derived its meaning from the Malay
word "balangay," meaning, a boat, which transported them to these shores.52 The barangay
was basically a family-based community and consisted of thirty to one hundred families. Each

barangay was different and ruled by a chieftain called a "dato." It was the chieftain's duty to
rule and govern his subjects and promote their welfare and interests. A chieftain had wide
powers for he exercised all the functions of government. He was the executive, l egislator and
judge and was the supreme commander in time of war.53
Laws were either customary or written. Customary laws were handed down orally from
generation to generation and constituted the bulk of the laws of the barangay. They were
preserved in songs and chants and in the memory of the elder persons in the
community.54 The written laws were those that the chieftain and his elders promulgated from
time to time as the necessity arose.55 The oldest known written body of laws was the Maragtas
Code by Datu Sumakwel at about 1250 A.D. Other old codes are the Muslim Code of Luwaran
and the Principal Code of Sulu.56 Whether customary or written, the laws dealt with various
subjects, such as inheritance, divorce, usury, loans, partnership, crime and punishment,
property rights, family relations and adoption. Whenever disputes arose, these were decided
peacefully through a court composed by the chieftain as "judge" and the barangay elders as
"jury." Conflicts arising between subjects of different barangays were resolved by arbitration in
which a board composed of elders from neutral barangays acted as arbiters. 57
Baranganic society had a distinguishing feature: the absence of private property in land. The
chiefs merely administered the lands in the name of the barangay. The social order was an
extension of the family with chiefs embodying the higher unity of the community. Each
individual, therefore, participated in the community ownership of the soil and the instruments
of production as a member of the barangay.58 This ancient communalism was practiced in
accordance with the concept of mutual sharing of resources so that no individual, regardless of
status, was without sustenance. Ownership of land was non-existent or unimportant and the
right of usufruct was what regulated the development of lands.59 Marine resources and
fishing grounds were likewise free to all. Coastal communities depended for their economic
welfare on the kind of fishing sharing concept similar to those in land
communities.60 Recognized leaders, such as the chieftains and elders, by virtue of their
positions of importance, enjoyed some economic privileges and benefits. But their rights,
related to either land and sea, were subject to their responsibility to protect the communities
from danger and to provide them with the leadership and means of survival. 61
Sometime in the 13th century, Islam was introduced to the archipelago in Maguindanao. The
Sultanate of Sulu was established and claimed jurisdiction over territorial areas represented
today by Tawi-tawi, Sulu, Palawan, Basilan and Zamboanga. Four ethnic groups were within
this jurisdiction: Sama, Tausug, Yakan and Subanon.62 The Sultanate of Maguindanao spread
out from Cotabato toward Maranao territory, now Lanao del Norte and Lanao del Sur. 63
The Muslim societies evolved an Asiatic form of feudalism where land was still held in
common but was private in use. This is clearly indicated in the Muslim Code of Luwaran. The
Code contains a provision on the lease of cultivated lands. It, however, has no provision for the
acquisition, transfer, cession or sale of land.64

The societies encountered by Magellan and Legaspi therefore were primitive economies
where most production was geared to the use of the producers and to the fulfillment of
kinship obligations. They were not economies geared to exchange and profit.65 Moreover, the
family basis of barangay membership as well as of leadership and governance worked to
splinter the population of the islands into numerous small and separate communities.66
When the Spaniards settled permanently in the Philippines in 1565, they found the Filipinos
living in barangay settlements scattered along water routes and river banks. One of the first
tasks imposed on the missionaries and the encomenderos was to collect all scattered Filipinos
together in a reduccion.67 As early as 1551, the Spanish government assumed an unvarying
solicitous attitude towards the natives.68 The Spaniards regarded it a sacred "duty to
conscience and humanity to civilize these less fortunate people living in the obscurity of
ignorance" and to accord them the "moral and material advantages" of community life and the
"protection and vigilance afforded them by the same laws."69
The Spanish missionaries were ordered to establish pueblos where the church and convent
would be constructed. All the new Christian converts were required to construct their houses
around the church and the unbaptized were invited to do the same. 70 With the reduccion, the
Spaniards attempted to "tame" the reluctant Filipinos through Christian indoctrination using
the convento/casa real/plaza complex as focal point. Thereduccion, to the Spaniards, was a
"civilizing" device to make the Filipinos law-abiding citizens of the Spanish Crown, and in the
long run, to make them ultimately adopt Hispanic culture and civilization.71
All lands lost by the old barangays in the process of pueblo organization as well as all lands
not assigned to them and the pueblos, were now declared to be crown lands or realengas,
belonging to the Spanish king. It was from the realengas that land grants were made to nonFilipinos.72
The abrogation of the Filipinos' ancestral rights in land and the introduction of the concept
of public domain were the most immediate fundamental results of Spanish colonial theory
and law.73 The concept that the Spanish king was the owner of everything of value in the
Indies or colonies was imposed on the natives, and the natives were stripped of their
ancestral rights to land.74
Increasing their foothold in the Philippines, the Spanish colonialists, civil and religious,
classified the Filipinos according to their religious practices and beliefs, and divided them into
three types . First were the Indios, the Christianized Filipinos, who generally came from the
lowland populations. Second, were the Moros or the Muslim communities, and third, were
the infieles or the indigenous communities.75
The Indio was a product of the advent of Spanish culture. This class was favored by the
Spaniards and was allowed certain status although below the Spaniards.
The Moros and infieles were regarded as the lowest classes.76

The Moros and infieles resisted Spanish rule and Christianity. The Moros were driven from
Manila and the Visayas to Mindanao; while the infieles, to the hinterlands. The Spaniards did
not pursue them into the deep interior. The upland societies were naturally outside the
immediate concern of Spanish interest, and the cliffs and forests of the hinterlands were
difficult and inaccessible, allowing the infieles, in effect, relative security.77 Thus,
the infieles, which were peripheral to colonial administration, were not only able to preserve
their own culture but also thwarted the Christianization process, separating themselves from
the newly evolved Christian community.78Their own political, economic and social systems
were kept constantly alive and vibrant.
The pro-Christian or pro-Indio attitude of colonialism brought about a generally mutual feeling
of suspicion, fear, and hostility between the Christians on the one hand and the non-Christians
on the other. Colonialism tended to divide and rule an otherwise culturally and historically
related populace through a colonial system that expl oited both the virtues and vices of the
Filipinos.79
President McKinley, in his instructions to the Philippine Commission of April 7, 1900,
addressed the existence of the infieles:
"In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same
course followed by Congress in permitting the tribes of our North American Indians to
maintain their tribal organization and government, and under which many of those tribes are
now living in peace and contentment, surrounded by civilization to which they are unable or
unwilling to conform. Such tribal government should, however, be subjected to wise and firm
regulation; and, without undue or petty interference, constant and active effort should be
exercised to prevent barbarous practices and introduce civilized customs." 80

anthropological interest in Philippine cultural minorities and produced a wealth of valuable

materials about them.83
The 1935 Constitution did not carry any policy on the non-Christian Filipinos. The raging
issue then was the conservation of the national patrimony for the Filipinos.
In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to effectuate in a more rapid
and complete manner the economic, social, moral and political advancement of the nonChristian Filipinos or national cultural minorities and to render real, complete, and permanent
the integration of all said national cultural minorities into the body politic, creating
the Commission on National Integration charged with said functions." The law called for
a policy of integration of indigenous peoples into the Philippine mainstream and for this
purpose created theCommission on National Integration (CNI).84 The CNI was given, more or
less, the same task as the BNCT during the American regime. The post-independence policy of
integration was like the colonial policy of assimilation understood in the context of a
guardian-ward relationship.85
The policy of assimilation and integration did not yield the desired result. Like the Spaniards
and Americans, government attempts at integration met with fierce resistance. Since World
War II, a tidal wave of Christian settlers from the lowlands of Luzon and the Visayas swamped
the highlands and wide open spaces in Mindanao.86 Knowledge by the settlers of the Public
Land Acts and the Torrens system resulted in the titling of several ancestral lands in the
settlers' names. With government initiative and participation, this titling displaced several
indigenous peoples from their lands. Worse, these peoples were also displaced by projects
undertaken by the national government in the name of national development. 87
It was in the 1973 Constitution that the State adopted the following provision:

Placed in an alternative of either letting the natives alone or guiding them in the path of
civilization, the American government chose "to adopt the latter measure as one more in
accord with humanity and with the national conscience."81
The Americans classified the Filipinos into two: the Christian Filipinos and the non-Christian
Filipinos. The term "non-Christian" referred not to religious belief, but to a geographical area,
and more directly, "to natives of the Philippine Islands of a low grade of civilization, usually
living in tribal relationship apart from settled communities."82
Like the Spaniards, the Americans pursued a policy of assimilation. In 1903, they passed Act
No. 253 creating the Bureau of Non-Christian Tribes (BNCT). Under the Department of the
Interior, the BNCT's primary task was to conduct ethnographic research among unhispanized
Filipinos, including those in Muslim Mindanao, with a "special view to determining the most
practicable means for bringing about their advancement in civilization and prosperity." The
BNCT was modeled after the bureau dealing with American Indians. The agency took a keen

"The State shall consider the customs, traditions, beliefs, and interests of national cultural
communities in the formulation and implementation of State policies."88
For the first time in Philippine history, the "non-Christian tribes" or the "cultural minorities"
were addressed by the highest law of the Republic, and they were referred to as "cultural
communities." More importantly this time, their "uncivilized" culture was given some
recognition and their "customs, traditions, beliefs and interests" were to be considered by the
State in the formulation and implementation of State policies.President Marcos abolished the
CNI and transferred its functions to the Presidential Adviser on National Minorities
(PANAMIN). The PANAMIN was tasked to integrate the ethnic groups that sought full
integration into the larger community, and at the same time "protect the rights of those who
wish to preserve their original lifeways beside the larger community." 89 In short, while still
adopting the integration policy, the decree recognized the right of tribal Filipinos to preserve
their way of life.90

In 1974, President Marcos promulgated P.D. No. 410, otherwise known as the Ancestral Lands
Decree. The decree provided for the issuance of land occupancy certificates to members of the
national cultural communities who were given up to 1984 to register their claims. 91 In 1979,
the Commission on the Settlement of Land Problems was created under E.O. No. 561 which
provided a mechanism for the expeditious resolution of land problems involving small settlers,
landowners, and tribal Filipinos.92
Despite the promulgation of these laws, from 1974 to the early 1980's, some 100,000 Kalingas
and Bontoks of the Cordillera region were displaced by the Chico River dam project of the
National Power Corporation (NPC). The Manobos of Bukidnon saw their land bulldozed by the
Bukidnon Sugar Industries Company (BUSCO). In Agusan del Sur, the National Development
Company was authorized by law in 1979 to take approximately 40,550 hectares of land that
later became the NDC-Guthrie plantation in Agusan del Sur. Most of the land was possessed by
the Agusan natives.93 Timber concessions, water projects, plantations, mining, and cattle
ranching and other projects of the national government led not only to the eviction of the
indigenous peoples from their land but also to the reduction and destruction of their natural
environment.94
The Aquino government signified a total shift from the policy of integration to one of
preservation.Invoking her powers under the Freedom Constitution, President Aquino created
the Office of Muslim Affairs, Office for Northern Cultural Communities and the Office for
Southern Cultural Communities all under the Office of the President.95
The 1987 Constitution carries at least six (6) provisions which insure the right of tribal
Filipinos to preserve their way of life.96 This Constitution goes further than the 1973
Constitution by expressly guaranteeing the rights of tribal Filipinos to their ancestral
domains and ancestral lands. By recognizing their right to their ancestral lands and domains,
the State has effectively upheld their right to live in a culture distinctly their own.
2. Their Concept of Land
Indigenous peoples share distinctive traits that set them apart from the Filipino mainstream.
They are non-Christians. They live in less accessible, marginal, mostly upland areas. They have
a system of self-government not dependent upon the laws of the central administration of the
Republic of the Philippines. They follow ways of life and customs that are perceived as
different from those of the rest of the population.97 The kind of response the indigenous
peoples chose to deal with colonial threat worked well to their advantage by making it difficult
for Western concepts and religion to erode their customs and traditions. The "infieles
societies" which had become peripheral to colonial administration, represented, from a
cultural perspective, a much older base of archipelagic culture. The political systems were still
structured on the patriarchal and kinship oriented arrangement of power and authority. The
economic activities were governed by the concepts of an ancient communalism and mutual
help. The social structure which emphasized division of labor and distinction of functions, not

status, was maintained. The cultural styles and forms of life portraying the varieties of social
courtesies and ecological adjustments were kept constantly vibrant.98
Land is the central element of the indigenous peoples' existence. There is no traditional
concept of permanent, individual, land ownership. Among the Igorots, owners hip of land more
accurately applies to the tribal right to use the land or to territorial control. The people are the
secondary owners or stewards of the land and that if a member of the tribe ceases to work, he
loses his claim of ownership, and the land reverts to the beings of the spirit world who are its
true and primary owners. Under the concept of "trusteeship," the right to possess the land
does not only belong to the present generation but the future ones as well. 99
Customary law on land rests on the traditional belief that no one owns the land except the
gods and spirits, and that those who work the land are its mere stewards. 100 Customary law
has a strong preference for communal ownership, which could either be ownership by a
group of individuals or families who are related by blood or by marriage,101 or ownership by
residents of the same locality who may not be related by blood or marriage. The system of
communal ownership under customary laws draws its meaning from the subsistence and
highly collectivized mode of economic production. The Kalingas, for instance, who are engaged
in team occupation like hunting, foraging for forest products, and swidden farming found it
natural that forest areas, swidden farms, orchards, pasture and burial grounds should be
communally-owned.102 For the Kalingas, everybody has a common right to a common
economic base. Thus, as a rule, rights and obligations to the land are shared in common.
Although highly bent on communal ownership, customary law on land also sanctions
individual ownership. The residential lots and terrace rice farms are governed by a limited
system of individual ownership. It is limited because while the individual owner has the right
to use and dispose of the property, he does not possess all the rights of an exclusive and full
owner as defined under our Civil Code.103 Under Kalinga customary law, the alienation of
individually-owned land is strongly discouraged except in marriage and succession and except
to meet sudden financial needs due to sickness, death in the family, or loss of
crops.104Moreover, and to be alienated should first be offered to a clan-member before any
village-member can purchase it, and in no case may land be sold to a non-member of the ili.105
Land titles do not exist in the indigenous peoples' economic and social system. The concept
of individual land ownership under the civil law is alien to them. Inherently colonial in origin,
our national land laws and governmental policies frown upon indigenous claims to ancestral
lands. Communal ownership is looked upon as inferior, if not inexistent.106
III. THE IPRA IS A NOVEL PIECE OF LEGISLATION.
A. The Legislative History of the IPRA

It was to address the centuries-old neglect of the Philippine indigenous peoples that the
Tenth Congress of the Philippines, by their joint efforts, passed and approved R.A. No. 8371,
the Indigenous Peoples Rights Act (IPRA) of 1997. The law was a consolidation of two BillsSenate Bill No. 1728 and House Bill No. 9125.

According to Senator Flavier, "[w]hile our legal tradition subscribes to the Regalian Doctrine
reinstated in Section 2, Article XII of the 1987 Constitution," our "decisional laws" and
jurisprudence passed by the State have "made exception to the doctrine." This exception
was first laid down in the case of Cario v. Insular Governmentwhere:

Principally sponsored by Senator Juan M. Flavier,107 Senate Bill No. 1728 was a consolidation
of four proposed measures referred to the Committees on Cultural Communities, Environment
and Natural Resources, Ways and Means, as well as Finance. It adopted almost en toto the
comprehensive version of Senate Bill Nos. 1476 and 1486 which was a result of six regional
consultations and one national consultation with indigenous peoples nationwide.108 At the
Second Regular Session of the Tenth Congress, Senator Flavier, in his sponsorship speech, gave
a background on the situation of indigenous peoples in the Philippines, to wit:

"x x x the court has recognized long occupancy of land by an indigenous member of the
cultural communities as one of private ownership, which, in legal concept, is termed "native
title." This ruling has not been overturned. In fact, it was affirmed in subsequent cases." 111

"The Indigenous Cultural Communities, including the Bangsa Moro, have long suffered from
the dominance and neglect of government controlled by the majority. Massive migration of
their Christian brothers to their homeland shrunk their territory and many of the tribal
Filipinos were pushed to the hinterlands. Resisting the intrusion, dispossessed of their
ancestral land and with the massive exploitation of their natural resources by the elite among
the migrant population, they became marginalized. And the government has been an
indispensable party to this insidious conspiracy against the Indigenous Cultural Communities
(ICCs). It organized and supported the resettlement of people to their ancestral land, which
was massive during the Commonwealth and early years of the Philippine Republic. Pursuant to
the Regalian Doctrine first introduced to our system by Spain through the Royal Decree of 13
February 1894 or the Maura Law, the government passed laws to legitimize the wholesale
landgrabbing and provide for easy titling or grant of lands to migrant homesteaders within the
traditional areas of the ICCs."109
Senator Flavier further declared:
"The IPs are the offsprings and heirs of the peoples who have first inhabited and cared for the
land long before any central government was established. Their ancestors had territories over
which they ruled themselves and related with other tribes. These territories- the land- include
people, their dwelling, the mountains, the water, the air, plants, forest and the animals. This is
their environment in its totality. Their existence as indigenous peoples is manifested in their
own lives through political, economic, socio-cultural and spiritual practices. The IPs culture is
the living and irrefutable proof to this.
Their survival depends on securing or acquiring land rights; asserting their rights to it; and
depending on it. Otherwise, IPs shall cease to exist as distinct peoples."110
To recognize the rights of the indigenous peoples effectively, Senator Flavier proposed a bill
based on two postulates: (1) the concept of native title; and (2) the principle of parens
patriae.

Following Cario, the State passed Act No. 926, Act No. 2874, C.A. No. 141, P.D. 705, P.D. 410,
P.D. 1529, R.A. 6734 (the Organic Act for the Autonomous Region of Muslim Mindanao). These
laws, explicitly or implicitly, and liberally or restrictively, recognized "native title" or "private
right" and the existence of ancestral lands and domains. Despite the passage of these laws,
however, Senator Flavier continued:
"x x x the executive department of government since the American occupation has not
implemented the policy. In fact, it was more honored in its breach than in its observance, its
wanton disregard shown during the period unto the Commonwealth and the early years of the
Philippine Republic when government organized and supported massive resettlement of the
people to the land of the ICCs."
Senate Bill No. 1728 seeks to genuinely recognize the IPs right to own and possess their
ancestral land. The bill was prepared also under the principle of parens patriae inherent in the
supreme power of the State and deeply embedded in Philippine legal tradition. This principle
mandates that persons suffering from serious disadvantage or handicap, which places them in
a position of actual inequality in their relation or transaction with others, are entitled to the
protection of the State.
Senate Bill No. 1728 was passed on Third Reading by twenty-one (21) Senators voting in
favor and none against, with no abstention.112
House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the Committee on Cultural
Communities. It was originally authored and subsequently presented and defended on the
floor by Rep. Gregorio Andolana of North Cotabato.113
Rep. Andolana's sponsorhip speech reads as follows:
"This Representation, as early as in the 8th Congress, filed a bill of similar implications that
would promote, recognize the rights of indigenous cultural communities within the framework
of national unity and development.
Apart from this, Mr. Speaker, is our obligation, the government's obligation to assure and
ascertain that these rights shall be well-preserved and the cultural traditions as well as the

indigenous laws that remained long before this Republic was established shall be preserved
and promoted. There is a need, Mr. Speaker, to look into these matters seriously and early
approval of the substitute bill shall bring into reality the aspirations, the hope and the dreams
of more than 12 million Filipinos that they be considered in the mainstream of the Philippine
society as we fashion for the year 2000." 114
Rep. Andolana stressed that H.B. No. 9125 is based on the policy of preservation as mandated
in the Constitution. He also emphasized that the rights of IPs to their land was enunciated
in Cario v. Insular Government which recognized the fact that they had vested rights prior to
the establishment of the Spanish and American regimes.115
After exhaustive interpellation, House Bill No. 9125, and its corresponding amendments, was
approved on Second Reading with no objections.
IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE CONSTITUTION.
A. Ancestral Domains and Ancestral Lands are the Private Property of Indigenous Peoples
and Do Not Constitute Part of the Land of the Public Domain.
The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains and
ancestral lands.Ancestral lands are not the same as ancestral domains. These are defined in
Section 3 [a] and [b] of the Indigenous Peoples Right Act, viz:
"Sec. 3 a) Ancestral Domains. - Subject to Section 56 hereof, refer to all areas generally
belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources
therein, held under a claim of ownership, occupied or possessed by ICCs/IPs by themselves or
through their ancestors, communally or individually since time immemorial, continuously to
the present except when interrupted by war, force majeure or displacement by force, deceit,
stealth or as a consequence of government projects or any other voluntary dealings entered
into by government and private individuals/corporations, and which are necessary to ensure
their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture,
residential, agricultural, and other lands individually owned whether alienable and disposable
or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and
other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs
but from which they traditionally had access to for their subsistence and traditional activities,
particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators;
b) Ancestral Lands.- Subject to Section 56 hereof, refers to land occupied, possessed and
utilized by individuals, families and clans who are members of the ICCs/IPs since time
immemorial, by themselves or through their predecessors-in-interest, under claims of
individual or traditional group ownership, continuously, to the present except when
interrupted by war, force majeure or displacement by force, deceit, stealth, or as a
consequence of government projects and other voluntary dealings entered into by

government and private individuals/corporations, including, but not limited to, residential lots,
rice terraces or paddies, private forests, swidden farms and tree lots."
Ancestral domains are all areas belonging to ICCs/IPs held under a claim of ownership,
occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or
individually since time immemorial, continuously until the present, except when interrupted
by war, force majeure or displacement by force, deceit, stealth or as a consequence of
government projects or any other voluntary dealings with government and/or private
individuals or corporations. Ancestral domains comprise lands, inland waters, coastal areas,
and natural resources therein and includes ancestral lands, forests, pasture, residential,
agricultural, and other lands individually owned whether alienable or not, hunting grounds,
burial grounds, worship areas, bodies of water, mineral and other natural resources. They
also include lands which may no longer be exclusively occupied by ICCs/IPs but from which
they traditionally had access to for their subsistence and traditional activities, particularly the
home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators. 116
Ancestral lands are lands held by the ICCs/IPs under the same conditions as ancestral domains
except that these are limited to lands and that these lands are not merely occupied and
possessed but are also utilized by the ICCs/IPs under claims of individual or traditional group
ownership. These lands include but are not limited to residential lots, rice terraces or paddies,
private forests, swidden farms and tree lots.117
The procedures for claiming ancestral domains and lands are similar to the procedures
embodied in Department Administrative Order (DAO) No. 2, series of 1993, signed by then
Secretary of the Department of Environment and Natural Resources (DENR) Angel
Alcala.118 DAO No. 2 allowed the delineation of ancestral domains by special task forces and
ensured the issuance of Certificates of Ancestral Land Claims (CALC's) and Certificates of
Ancestral Domain Claims (CADC's) to IPs.
The identification and delineation of these ancestral domains and lands is a power conferred
by the IPRA on the National Commission on Indigenous Peoples (NCIP). 119 The guiding principle
in identification and delineation is self-delineation.120 This means that the ICCs/IPs have a
decisive role in determining the boundaries of their domains and in all the activities pertinent
thereto.121
The procedure for the delineation and recognition of ancestral domains is set forth in Sections
51 and 52 of the IPRA. The identification, delineation and certification of ancestral lands is in
Section 53 of said law.
Upon due application and compliance with the procedure provided under the law and upon
finding by the NCIP that the application is meritorious, the NCIP shall issue a Certificate of
Ancestral Domain Title (CADT) in the name of the community concerned. 122 The allocation
of lands within the ancestral domain to any individual or indigenous corporate (family or clan)

claimants is left to the ICCs/IPs concerned to decide in accordance with customs and
traditions.123 With respect to ancestral lands outside the ancestral domain, the NCIP issues a
Certificate of Ancestral Land Title (CALT).124
CADT's and CALT's issued under the IPRA shall be registered by the NCIP before the Register of
Deeds in the place where the property is situated.125
(1) Right to Ancestral Domains and Ancestral Lands: How Acquired
The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired in
two modes: (1) bynative title over both ancestral lands and domains; or (2) by torrens
title under the Public Land Act and the Land Registration Act with respect to ancestral lands
only.
(2) The Concept of Native Title
Native title is defined as:
"Sec. 3 [l]. Native Title- refers to pre-conquest rights to lands and domains which, as far back as
memory reaches, have been held under a claim of private ownership by ICCs/IPs, have never
been public lands and are thusindisputably presumed to have been held that way since before
the Spanish Conquest."126
Native title refers to ICCs/IPs' preconquest rights to lands and domains held under a claim of
private ownership as far back as memory reaches. These lands are deemed never to have been
public lands and are indisputably presumed to have been held that way since before the
Spanish Conquest. The rights of ICCs/IPs to their ancestral domains (which also include
ancestral lands) by virtue of native title shall be recognized and respected.127 Formal
recognition, when solicited by ICCs/IPs concerned, shall be embodied in a Certificate of
Ancestral Domain Title (CADT), which shall recognize the title of the concerned ICCs/IPs over
the territories identified and delineated.128
Like a torrens title, a CADT is evidence of private ownership of land by native title. Native title,
however, is a right of private ownership peculiarly granted to ICCs/IPs over their ancestral
lands and domains. The IPRA categorically declares ancestral lands and domains held by native
title as never to have been public land. Domains and lands held under native title are,
therefore, indisputably presumed to have never been public lands and are private.

In 1903, Don Mateo Cario, an Ibaloi, sought to register with the land registration court 146
hectares of land in Baguio Municipality, Benguet Province. He claimed that this land had been
possessed and occupied by his ancestors since time immemorial; that his grandfather built
fences around the property for the holding of cattle and that his father cultivated some parts
of the land. Cario inherited the land in accordance with Igorot custom. He tried to have the
land adjusted under the Spanish land laws, but no document issued from the Spanish
Crown.131 In 1901, Cario obtained a possessory title to the land under the Spanish Mortgage
Law.132 The North American colonial government, however, ignored his possessory title and
built a public road on the land prompting him to seek a Torrens title to his property in the land
registration court. While his petition was pending, a U.S. military reservation 133 was
proclaimed over his land and, shortly thereafter, a military detachment was detailed on the
property with orders to keep cattle and trespassers, including Cario, off the land. 134
In 1904, the land registration court granted Cario's application for absolute ownership to the
land. Both the Government of the Philippine Islands and the U.S. Government appealed to the
C.F.I. of Benguet which reversed the land registration court and dismissed Cario's application.
The Philippine Supreme Court135 affirmed the C.F.I. by applying the Valenton ruling. Cario
took the case to the U.S. Supreme Court.136 On one hand, the Philippine government invoked
the Regalian doctrine and contended that Cario failed to comply with the provisions of the
Royal Decree of June 25, 1880, which required registration of land claims within a limited
period of time. Cario, on the other, asserted that he was the absolute owner of the l and jure
gentium, and that the land never formed part of the public domain.
In a unanimous decision written by Justice Oliver Wendell Holmes, the U.S. Supreme Court
held:
"It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands
were held from the Crown, and perhaps the general attitude of conquering nations toward
people not recognized as entitled to the treatment accorded to those in the same zone of
civilization with themselves. 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."137
The U.S. Supreme Court noted that it need not accept Spanish doctrines. The choice was with
the new colonizer. Ultimately, the matter had to be decided under U.S. law.

(a) Cario v. Insular Government 129

The concept of native title in the IPRA was taken from the 1909 case of Cario v. Insular
Government.130Cario firmly established a concept of private land title that existed
irrespective of any royal grant from the State.

The Cario decision largely rested on the North American constitutionalist's concept of "due
process" as well as the pronounced policy "to do justice to the natives." 138 It was based on the
strong mandate extended to the Islands via the Philippine Bill of 1902 that "No law shall be
enacted in said islands which shall deprive any person of life, liberty, or property without due

process of law, or deny to any person therein the equal protection of the laws." The court
declared:

discourse" and it was observed that titles were admitted to exist beyond the powers of the
Crown, viz:

"The acquisition of the Philippines was not like the settlement of the white race in the United
States. Whatever consideration may have been shown to the North American Indians, the
dominant purpose of the whites in America was to occupy land. It is obvious that, however
stated, the reason for our taking over the Philippines was different. 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, chapter 1369, section 12 (32 Statutes at
Large, 691), all the property and rights acquired there by the United States are to be
administered 'for the benefit of the inhabitants thereof.' It is reasonable to suppose that the
attitude thus assumed by the United States with regard to what was unquestionably its own is
also its attitude in deciding what it will claim for its own. The same statute made a bill of rights,
embodying the safeguards of the Constitution, and, like the Constitution, extends those
safeguards to all. It provides that 'no law shall be enacted in said islands which shall deprive
any person of life, liberty, or property without due process of law, or deny to any person
therein the equal protection of the laws.' In the light of the declaration that we have quoted
from section 12, it is hard to believe that the United States was ready to declare in the next
breath that "any person" did not embrace the inhabitants of Benguet, or that it meant by
"property" only that which had become such by ceremonies of which presumably a large part
of the inhabitants never had heard, and that it proposed to treat as public land what they, by
native custom and by long association,- of the profoundest factors in human thought,regarded as their own."139

"If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof
that it was bad by that law as to satisfy us that he does not own the land. To begin with, the
older decrees and laws cited by the counsel for the plaintiff in error seem to indicate pretty
clearly that the natives were recognized as owning some lands, irrespective of any royal
grant. In other words, Spain did not assume to convert all the native inhabitants of the
Philippines into trespassers or even into tenants at will. For instance, Book 4, title 12, Law 14
of the the Recopilacion de Leyes de las Indias, cited for a contrary conclusion in Valenton v.
Murciano, 3 Philippine 537, while it commands viceroys and others, when it seems proper, to
call for the exhibition of grants, directs them to confirm those who hold by good grants
or justa prescripcion. It is true that it begins by the characteristic assertion of feudal
overlordship and the origin of all titles in the King or his predecessors. That was theory and
discourse. The fact was that titles were admitted to exist that owed nothing to the powers of
Spain beyond this recognition in their books." (Emphasis supplied).141

The Court went further:

"Every presumption is and ought to be against the government in a case like the present. It
might, perhaps, be proper and sufficient to say that when, as far back as testimony or
memory goes, the land has been held by individuals under a claim of private ownership, it
will be presumed to have been held in the same way from before the Spanish conquest, and
never to have been public land. Certainly in a case like this, if there is doubt or ambiguity in
the Spanish law, we ought to give the applicant the benefit of the doubt." 140
The court thus laid down the presumption of a certain title held (1) as far back as testimony or
memory went, and (2) under a claim of private ownership. Land held by this title is presumed
to "never have been public land."
Against this presumption, the U.S. Supreme Court analyzed the Spanish decrees upheld in the
1904 decision ofValenton v. Murciano. The U.S. Supreme Court found no proof that the
Spanish decrees did not honor native title. On the contrary, the decrees discussed
in Valenton appeared to recognize that the natives owned some land, irrespective of any royal
grant. The Regalian doctrine declared in the preamble of the Recopilacion was all "theory and

The court further stated that the Spanish "adjustment" proceedings never held sway over
unconquered territories. The wording of the Spanish laws were not framed in a manner as to
convey to the natives that failure to register what to them has always been their own would
mean loss of such land. The registration requirement was "not to confer title, but simply to
establish it;" it was "not calculated to convey to the mind of an Igorot chief the notion that
ancient family possessions were in danger, if he had read every word of it."
By recognizing this kind of title, the court clearly repudiated the doctrine of Valenton. It was
frank enough, however, to admit the possibility that the applicant might have been deprived
of his land under Spanish law because of the inherent ambiguity of the decrees and
concomitantly, the various interpretations which may be given them. But precisely because of
the ambiguity and of the strong "due process mandate" of the Constitution, the court
validated this kind of title.142 This title was sufficient, even without government administrative
action, and entitled the holder to a Torrens certificate. Justice Holmes explained:
"It will be perceived that the rights of the applicant under the Spanish law present a problem
not without difficulties for courts of a legal tradition. We have deemed it proper on that
account to notice the possible effect of the change of sovereignty and the act of Congress
establishing the fundamental principles now to be observed. Upon a consideration of the
whole case we are of the opinion that law and justice require that the applicant should be
granted what he seeks, and should not be deprived of what, by the practice and belief of those
among whom he lived, was his property, through a refined interpretation of an almost
forgotten law of Spain."143
Thus, the court ruled in favor of Cario and ordered the registration of the 148 hectares in
Baguio Municipality in his name.144

Examining Cario closer, the U.S. Supreme Court did not categorically refer to the title it
upheld as "native title." It simply said:
"The Province of Benguet was inhabited by a tribe that the Solicitor-General, in his
argument, characterized as a savage tribe that never was brought under the civil or military
government of the Spanish Crown. It seems probable, if not certain, that the Spanish officials
would not have granted to anyone in that province the registration to which formerly the
plaintiff was entitled by the Spanish Laws, and which would have made his title beyond
question good. Whatever may have been the technical position of Spain it does not follow
that, in the view of the United States, he had lost all rights and was a mere trespasser when
the present government seized his land. The argument to that effect seems to amount to a
denial of native titles through an important part of the Island of Luzon, at least, for the want of
ceremonies which the Spaniards would not have permitted and had not the power to
enforce."145
This is the only instance when Justice Holmes used the term "native title" in the entire length
of the Cariodecision. It is observed that the widespread use of the term "native title" may be
traced to Professor Owen James Lynch, Jr., a Visiting Professor at the University of the
Philippines College of Law from the Yale University Law School. In 1982, Prof. Lynch published
an article in the Philippine Law Journal entitled Native Title, Private Right and Tribal Land
Law.146 This article was made after Professor Lynch visited over thirty tribal communities
throughout the country and studied the origin and development of Philippine land laws.147 He
discussed Carioextensively and used the term "native title" to refer to Cario's title as
discussed and upheld by the U.S. Supreme Court in said case.
(b) Indian Title
In a footnote in the same article, Professor Lynch stated that the concept of "native title" as
defined by Justice Holmes in Cario "is conceptually similar to "aboriginal title" of the
American Indians.148 This is not surprising, according to Prof. Lynch, considering that during the
American regime, government policy towards ICCs/IPs was consistently made in reference to
native Americans.149 This was clearly demonstrated in the case of Rubi v. Provincial Board of
Mindoro.150
In Rubi, the Provincial Board of Mindoro adopted a Resolution authorizing the provincial
governor to remove the Mangyans from their domains and place them in a permanent
reservation in Sitio Tigbao, Lake Naujan. Any Mangyan who refused to comply was to be
imprisoned. Rubi and some Mangyans, including one who was imprisoned for trying to escape
from the reservation, filed for habeas corpus claiming deprivation of liberty under the Board
Resolution. This Court denied the petition on the ground of police power. It upheld
government policy promoting the idea that a permanent settlement was the only successful
method for educating the Mangyans, introducing civilized customs, improving their health and
morals, and protecting the public forests in which they roamed.151 Speaking through Justice
Malcolm, the court said:

"Reference was made in the President's instructions to the Commission to the policy adopted
by the United States for the Indian Tribes. The methods followed by the Government of the
Philippine Islands in its dealings with the so-called non-Christian people is said, on argument,
to be practically identical with that followed by the United States Government in its dealings
with the Indian tribes. Valuable lessons, it is insisted, can be derived by an investigation of the
American-Indian policy.
From the beginning of the United States, and even before, the Indians have been treated as "in
a state of pupilage." The recognized relation between the Government of the United States
and the Indians may be described as that of guardian and ward. It is for the Congress to
determine when and how the guardianship shall be terminated. The Indians are always subject
to the plenary authority of the United States.152
x x x.
As to the second point, the facts in the Standing Bear case and the Rubi case are not exactly
identical. But even admitting similarity of facts, yet it is known to all that Indian reservations
do exist in the United States, that Indians have been taken from different parts of the country
and placed on these reservations, without any previous consultation as to their own wishes,
and that, when once so located, they have been made to remain on the reservation for their
own good and for the general good of the country. If any lesson can be drawn from the Indian
policy of the United States, it is that the determination of this policy is for the legislative and
executive branches of the government and that when once so decided upon, the courts should
not interfere to upset a carefully planned governmental system. Perhaps, just as many forceful
reasons exist for the segregation of the Manguianes in Mindoro as existed for the segregation
of the different Indian tribes in the United States."153
Rubi applied the concept of Indian land grants or reservations in the Philippines. An Indian
reservation is a part of the public domain set apart by proper authority for the use and
occupation of a tribe or tribes of Indians.154 It may be set apart by an act of Congress, by
treaty, or by executive order, but it cannot be established by custom and prescription.155
Indian title to land, however, is not limited to land grants or reservations. It also covers the
"aboriginal right of possession or occupancy."156 The aboriginal right of possession depends
on the actual occupancy of the lands in question by the tribe or nation as their ancestral home,
in the sense that such lands constitute definable territory occupied exclusively by the
particular tribe or nation.157 It is a right which exists apart from any treaty, statute, or other
governmental action, although in numerous instances treaties have been negotiated with
Indian tribes, recognizing their aboriginal possession and delimiting their occupancy rights or
settling and adjusting their boundaries.158
American jurisprudence recognizes the Indians' or native Americans' rights to land they have
held and occupied before the "discovery" of the Americas by the Europeans. The earliest

definitive statement by the U.S. Supreme Court on the nature of aboriginal title was made in
1823 in Johnson & Graham's Lessee v. M'Intosh.159

occupancy. Once the discoverer purchased the land from the Indians or conquered them, it
was only then that the discoverer gained an absolute title unrestricted by Indian rights.

In Johnson, the plaintiffs claimed the land in question under two (2) grants made by the chiefs
of two (2) Indian tribes. The U.S. Supreme Court refused to recognize this conveyance, the
plaintiffs being private persons. The only conveyance that was recognized was that made by
the Indians to the government of the European discoverer. Speaking for the court, Chief
Justice Marshall pointed out that the potentates of the old world believed that they had made
ample compensation to the inhabitants of the new world by bestowing civilization and
Christianity upon them; but in addition, said the court, they found it necessary, in order to
avoid conflicting settlements and consequent war, to establish the principle that discovery
gives title to the government by whose subjects, or by whose authority, the discovery was
made, against all other European governments, which title might be consummated by
possession.160 The exclusion of all other Europeans gave to the nation making the discovery
the sole right of acquiring the soil from the natives and establishing settlements upon it. As
regards the natives, the court further stated that:

The court concluded, in essence, that a grant of Indian lands by Indians could not convey a title
paramount to the title of the United States itself to other parties, saying:

"Those relations which were to exist between the discoverer and the natives were to be
regulated by themselves. The rights thus acquired being exclusive, no other power could
interpose between them.
In the establishment of these relations, the rights of the original inhabitants were, in no
instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They
were admitted to be the rightful occupants of the soil, with a legal as well as just claim to
retain possession of it, and to use it according to their own discretion; but their rights to
complete sovereignty, as independent nations, were necessarily diminished, and their power
to dispose of the soil at their own will, to whomsoever they pleased, was denied by the
fundamental principle that discovery gave exclusive title to those who made it.
While the different nations of Europe respected the right of the natives as occupants, they
asserted the ultimate dominion to be in themselves; and claimed and exercised, as a
consequence of this ultimate dominion, a power to grant the soil, while yet in possession of
the natives. These grants have been understood by all to convey a title to the grantees,
subject only to the Indian right of occupancy." 161
Thus, the discoverer of new territory was deemed to have obtained the exclusive right to
acquire Indian land and extinguish Indian titles. Only to the discoverer- whether to England,
France, Spain or Holland- did this right belong and not to any other nation or private person.
The mere acquisition of the right nonetheless did not extinguish Indian claims to land. Rather,
until the discoverer, by purchase or conquest, exercised its right, the concerned Indians were
recognized as the "rightful occupants of the soil, with a legal as well as just claim to retain
possession of it." Grants made by the discoverer to her subjects of lands occupied by the
Indians were held to convey a title to the grantees, subject only to the Indian right of

"It has never been contended that the Indian title amounted to nothing. Their right of
possession has never been questioned. The claim of government extends to the complete
ultimate title, charged with this right of possession, and to the exclusive power of acquiring
that right."162
It has been said that the history of America, from its discovery to the present day, proves the
universal recognition of this principle.163
The Johnson doctrine was a compromise. It protected Indian rights and their native lands
without having to invalidate conveyances made by the government to many U.S. citizens. 164
Johnson was reiterated in the case of Worcester v. Georgia.165 In this case, the State of
Georgia enacted a law requiring all white persons residing within the Cherokee nation to
obtain a license or permit from the Governor of Georgia; and any violation of the law was
deemed a high misdemeanor. The plaintiffs, who were white missionaries, did not obtain said
license and were thus charged with a violation of the Act.
The U.S. Supreme Court declared the Act as unconstitutional for interfering with the treaties
established between the United States and the Cherokee nation as well as the Acts of Congress
regulating intercourse with them. It characterized the relationship between the United States
government and the Indians as:
"The Indian nations were, from their situation, necessarily dependent on some foreign
potentate for the supply of their essential wants, and for their protection from lawless and
injurious intrusions into their country. That power was naturally termed their protector. They
had been arranged under the protection of Great Britain; but the extinguishment of the British
power in their neighborhood, and the establishment of that of the United States in its place,
led naturally to the declaration, on the part of the Cherokees, that they were under the
protection of the United States, and of no other power. They assumed the relation with the
United States which had before subsisted with Great Britain.
This relation was that of a nation claiming and receiving the protection of one more powerful,
not that of individuals abandoning their national character, and submitting as subjects to the
laws of a master."166

It was the policy of the U.S. government to treat the Indians as nations with distinct territorial
boundaries and recognize their right of occupancy over all the lands within their domains.
Thus:
"From the commencement of our government Congress has passed acts to regulate trade and
intercourse with the Indians; which treat them as nations, respect their rights, and manifest a
firm purpose to afford that protection which treaties stipulate. All these acts, and especially
that of 1802, which is still in force, manifestly consider the several Indian nations as distinct
political communities, having territorial boundaries, within which their authority is
exclusive, and having a right to all the lands within those boundaries, which is not only
acknowledged, but guaranteed by the United States.
x x x.
"The Indian nations had always been considered as distinct, independent political
communities, retaining their original natural rights, as the undisputed possessors of the soil
from time immemorial,with the single exception of that imposed by irresistible power, which
excluded them from intercourse with any other European potentate than the first discoverer
of the coast of the particular region claimed: and this was a restriction which those European
potentates imposed on themselves, as well as on the Indians. The very term "nation," so
generally applied to them, means "a people distinct from others." x x x.167
The Cherokee nation, then, is a distinct community, occupying its own territory, with
boundaries accurately described, in which the laws of Georgia can have no force, and which
the citizens of Georgia have no right to enter but with the a ssent of the Cherokees themselves
or in conformity with treaties and with the acts of Congress. The whole intercourse between
the United States and this nation is, by our Constitution and laws, vested in the government of
the United States."168
The discovery of the American continent gave title to the government of the discoverer as
against all other European governments. Designated as the naked fee,169 this title was to be
consummated by possession and was subject to the Indian title of occupancy. The discoverer
acknowledged the Indians' legal and just claim to retain possession of the land, the Indians
being the original inhabitants of the land. The discoverer nonetheless asserted the exclusive
right to acquire the Indians' land- either by purchase, "defensive" conquest, or cession- and in
so doing, extinguish the Indian title. Only the discoverer could extinguish Indian title because it
alone asserted ultimate dominion in itself. Thus, while the different nations of Europe
respected the rights of the natives as occupants, they all asserted the ultimate dominion and
title to be in themselves.170
As early as the 19th century, it became accepted doctrine that although fee title to the lands
occupied by the Indians when the colonists arrived became vested in the sovereign- first the
discovering European nation and later the original 13 States and the United States- a right of

occupancy in the Indian tribes was nevertheless recognized. The Federal Government
continued the policy of respecting the Indian right of occupancy, sometimes called Indian title,
which it accorded the protection of complete ownership.171 But this aboriginal Indian interest
simply constitutes "permission" from the whites to occupy the land, and means mere
possession not specifically recognized as ownership by Congress.172 It is clear that this right of
occupancy based upon aboriginal possession is not a property right.173 It is vulnerable to
affirmative action by the federal government who, as sovereign, possessed exclusive power to
extinguish the right of occupancy at will.174 Thus, aboriginal title is not the same as legal
title. Aboriginal title rests on actual, exclusive and continuous use and occupancy for a long
time.175 It entails that land owned by Indian title must be used within the tribe, subject to its
laws and customs, and cannot be sold to another sovereign government nor to any
citizen.176 Such title as Indians have to possess and occupy land is in the tribe, and not in the
individual Indian; the right of individual Indians to share in the tribal property usually depends
upon tribal membership, the property of the tribe generally being held in communal
ownership.177
As a rule, Indian lands are not included in the term "public lands," which is ordinarily used to
designate such lands as are subject to sale or other disposal under general laws.178 Indian land
which has been abandoned is deemed to fall into the public domain. 179 On the other hand, an
Indian reservation is a part of the public domain set apart for the use and occupation of a tribe
of Indians.180 Once set apart by proper authority, the reservation ceases to be public land, and
until the Indian title is extinguished, no one but Congress can initiate any preferential right on,
or restrict the nation's power to dispose of, them.181
The American judiciary struggled for more than 200 years with the ancestral land claims of
indigenous Americans.182 And two things are clear. First, aboriginal title is recognized. Second,
indigenous property systems are also recognized. From a legal point of view, certain benefits
can be drawn from a comparison of Philippine IPs to native Americans. 183 Despite the
similarities between native title and aboriginal title, however, there are at present some
misgivings on whether jurisprudence on American Indians may be cited authoritatively in the
Philippines. The U.S. recognizes the possessory rights of the Indians over their land; title to the
land, however, is deemed to have passed to the U.S. as successor of the discoverer. The
aboriginal title of ownership is not specifically recognized as ownership by action authorized by
Congress.184 The protection of aboriginal title merely guards against encroachment by persons
other than the Federal Government.185 Although there are criticisms against the refusal to
recognize the native Americans' ownership of these lands,186 the power of the State to
extinguish these titles has remained firmly entrenched.187
Under the IPRA, the Philippine State is not barred form asserting sovereignty over the
ancestral domains and ancestral lands.188 The IPRA, however, is still in its infancy and any
similarities between its application in the Philippines vis--vis American Jurisprudence on
aboriginal title will depend on the peculiar facts of each case.
(c) Why the Cario doctrine is unique

In the Philippines, the concept of native title first upheld in Cario and enshrined in the IPRA
grants ownership, albeit in limited form, of the land to the ICCs/IPs. Native title presumes that
the land is private and was never public. Cario is the only case that specifically and
categorically recognizes native title. The long line of cases citing Cario did not touch on
native title and the private character of ancestral domains and lands. Cario was cited by the
succeeding cases to support the concept of acquisitive prescription under the Public Land Act
which is a different matter altogether. Under the Public Land Act, land sought to be registered
must be public agricultural land. When the conditions specified in Section 48 [b] of the Public
Land Act are complied with, the possessor of the land is deemed to have acquired, by
operation of law, a right to a grant of the land.189 The land ceases to be part of the public
domain,190 ipso jure,191 and is converted to private property by the mere lapse or completion of
the prescribed statutory period.
It was only in the case of Oh Cho v. Director of Lands192 that the court declared that the rule
that all lands that were not acquired from the government, either by purchase or grant, belong
to the public domain has an exception. This exception would be any land that should have
been in the possession of an occupant and of his predecessors-in-interest since time
immemorial. It is this kind of possession that would justify the presumption that the land had
never been part of the public domain or that it had been private property even before the
Spanish conquest.193 Oh Cho, however, was decided under the provisions of the Public Land
Act and Cariowas cited to support the applicant's claim of acquisitive prescription under the
said Act.
All these years, Cario had been quoted out of context simply to justify long, continuous, open
and adverse possession in the concept of owner of public agricultural land. It is this long,
continuous, open and adverse possession in the concept of owner of thirty years both for
ordinary citizens194 and members of the national cultural minorities 195 that converts the land
from public into private and entitles the registrant to a torrens certificate of title.
(3) The Option of Securing a Torrens Title to the Ancestral Land Indicates that the Land is
Private.
The private character of ancestral lands and domains as laid down in the IPRA is
further strengthened by the option given to individual ICCs/IPs over their individually-owned
ancestral lands. For purposes of registration under the Public Land Act and the Land
Registration Act, the IPRA expressly converts ancestral land into public agricultural land
which may be disposed of by the State. The necessary implication is thatancestral land is
private. It, however, has to be first converted to public agricultural land simply for
registration purposes. To wit:
"Sec. 12. Option to Secure Certificate of Title Under Commonwealth Act 141, as amended, or
the Land Registration Act 496- Individual members of cultural communities, with respect to
their individually-owned ancestral lands who, by themselves or through their predecessors-ininterest, have been in continuous possession and occupation of the same in the concept of

owner since time immemorial or for a period of not less than thirty (30) years immediately
preceding the approval of this Act and uncontested by the members of the same ICCs/IPs shall
have the option to secure title to their ancestral lands under the provisions of Commonwealth
Act 141, as amended, or the Land Registration Act 496.
For this purpose, said individually-owned ancestral lands, which are agricultural in character
and actually used for agricultural, residential, pasture, and tree farming purposes, including
those with a slope of eighteen percent (18%) or more, are hereby classified as alienable and
disposable agricultural lands.
The option granted under this section shall be exercised within twenty (20) years from the
approval of this Act."196
ICCs/IPs are given the option to secure a torrens certificate of title over their individuallyowned ancestral lands. This option is limited to ancestral lands only, not domains, and such
lands must be individually, not communally, owned.
Ancestral lands that are owned by individual members of ICCs/IPs who, by themselves or
through their predecessors-in-interest, have been in continuous possession and occupation of
the same in the concept of owner since time immemorial 197 or for a period of not less than 30
years, which claims are uncontested by the members of the same ICCs/IPs, may be registered
under C.A. 141, otherwise known as the Public Land Act, or Act 496, the Land Registration Act.
For purposes of registration, the individually-owned ancestral lands are classified as alienable
and disposable agricultural lands of the public domain, provided, they are agricultural in
character and are actually used for agricultural, residential, pasture and tree farming purposes.
These lands shall be classified as public agricultural lands regardless of whether they have a
slope of 18% or more.
The classification of ancestral land as public agricultural land is in compliance with the
requirements of the Public Land Act and the Land Registration Act. C.A. 141, the Public Land
Act, deals specifically with lands of the public domain.198 Its provisions apply to those lands
"declared open to disposition or concession" x x x "which have not been reserved for public or
quasi-public purposes, nor appropriated by the Government, nor in any manner become
private property, nor those on which a private right authorized and recognized by this Act or
any other valid law x x x or which having been reserved or appropriated, have ceased to be
so."199 Act 496, the Land Registration Act, allows registration only of private lands and public
agricultural lands. Since ancestral domains and lands are private, if the ICC/IP wants to avail
of the benefits of C.A. 141 and Act 496, the IPRA itself converts his ancestral land, regardless
of whether the land has a slope of eighteen per cent (18%) or over,200 from private to public
agricultural land for proper disposition.

The option to register land under the Public Land Act and the Land Registration Act has
nonetheless a limited period. This option must be exercised within twenty (20) years from
October 29, 1997, the date of approval of the IPRA.

not the owner of any real property secured or disposable under the provision of the Public
Land Law.203
x x x.

Thus, ancestral lands and ancestral domains are not part of the lands of the public domain.
They are private and belong to the ICCs/IPs. Section 3 of Article XII on National Economy and
Patrimony of the 1987 Constitution classifies lands of the public domain into four categories:
(a) agricultural, (b) forest or timber, (c) mineral lands, and (d) national parks. Section 5 of
the same Article XII mentions ancestral lands and ancestral domains but it does not classify
them under any of the said four categories. To classify them as public lands under any one of
the four classes will render the entire IPRA law a nullity. The spirit of the IPRA lies in the
distinct concept of ancestral domains and ancestral lands. The IPRA addresses the major
problem of the ICCs/IPs which is loss of land. Land and space are of vital concern in terms of
sheer survival of the ICCs/IPs.201
The 1987 Constitution mandates the State to "protect the rights of indigenous cultural
communities to their ancestral lands" and that "Congress provide for the applicability of
customary laws x x x in determining the ownership and extent of ancestral domain." 202 It is
the recognition of the ICCs/IPs distinct rights of ownership over their ancestral domains and
lands that breathes life into this constitutional mandate.
B. The right of ownership and possession by the ICCs/IPs of their ancestral domains is a
limited form of ownership and does not include the right to alienate the same.
Registration under the Public Land Act and Land Registration Act recognizes the concept of
ownership under thecivil law. This ownership is based on adverse possession for a specified
period, and harkens to Section 44 of the Public Land Act on administrative legalization (free
patent) of imperfect or incomplete titles and Section 48 (b) and (c) of the same Act on the
judicial confirmation of imperfect or incomplete titles. Thus:
"Sec. 44. Any natural-born citizen of the Philippines who is not the owner of more than
twenty-four hectares and who since July fourth, 1926 or prior thereto, has continuously
occupied and cultivated, either by himself or through his predecessors-in-interest, a tract or
tracts of agricultural public lands subject to disposition, or who shall have paid the real estate
tax thereon while the same has not been occupied by any person shall be entitled, under the
provisions of this chapter, to have a free patent issued to him for such tract or tracts of such
land not to exceed twenty-four hectares.
A member of the national cultural minorities who has continuously occupied and cultivated,
either by himself or through his predecessors-in-interest, a tract or tracts of land, whether
disposable or not since July 4, 1955, shall be entitled to the right granted in the preceding
paragraph of this section: Provided, That at the time he files his free patent application he is

"Sec. 48. The following described citizens of the Philippines, occupying lands of the public
domain or claiming to own any such lands or an interest therein, but whose titles have not
been perfected or completed, may apply to the Court of First Instance of the province where
the land is located for confirmation of their claims and the issuance of a certificate of title
therefor, under the Land Registration Act, to wit:
(a) [perfection of Spanish titles] xxx.
(b) Those who by themselves or through their predecessors-in-interest have been in
open, continuous, exclusive, and notorious possession and occupation of agricultural
lands of the public domain, under a bona fide claim of acquisition or ownership, for
at least thirty years immediately preceding the filing of the application for
confirmation of title except when prevented by war or force majeure. These shall be
conclusively presumed to have performed all the conditions essential to a
Government grant and shall be entitled to a certificate of title under the provisions of
this Chapter.
(c) Members of the national cultural minorities who by themselves or through their
predecessors-in-interest have been in open, continuous, exclusive and notorious
possession and occupation of lands of the public domain suitable to agriculture,
whether disposable or not, under a bona fide claim of ownership for at least 30
years shall be entitled to the rights granted in sub-section (b) hereof." 204
Registration under the foregoing provisions presumes that the land was originally public
agricultural land but because of adverse possession since July 4, 1955 (free patent) or at least
thirty years (judicial confirmation), the land has become private. Open, adverse, public and
continuous possession is sufficient, provided, the possessor makes proper application therefor.
The possession has to be confirmed judicially or administratively after which a torrens title is
issued.
A torrens title recognizes the owner whose name appears in the certificate as entitled to all
the rights of ownership under the civil law. The Civil Code of the Philippines defines ownership
in Articles 427, 428 and 429. This concept is based on Roman Law which the Spaniards
introduced to the Philippines through the Civil Code of 1889. Ownership, under Roman Law,
may be exercised over things or rights. It primarily includes the right of the owner to enjoy and
dispose of the thing owned. And the right to enjoy and dispose of the thing includes the right
to receive from the thing what it produces,205 the right to consume the thing by its use,206 the
right to alienate, encumber, transform or even destroy the thing owned, 207 and the right to

exclude from the possession of the thing owned by any other person to whom the owner has
not transmitted such thing.208
1. The Indigenous Concept of Ownership and Customary Law.
Ownership of ancestral domains by native title does not entitle the ICC/IP to a torrens title but
to a Certificate of Ancestral Domain Title (CADT). The CADT formally recognizes
the indigenous concept of ownership of the ICCs/IPs over their ancestral domain. Thus:
"Sec. 5. Indigenous concept of ownership.- Indigenous concept of ownership sustains the view
that ancestral domains and all resources found therein shall serve as the material bases of
their cultural integrity. The indigenous concept of ownership generally holds that ancestral
domains are the ICCs/IPs private but community property which belongs to all generations and
therefore cannot be sold, disposed or destroyed. It likewise covers sustainable traditional
resource rights."
The right of ownership and possession of the ICCs/IPs to their ancestral domains is held
under the indigenous concept of ownership. This concept maintains the view that ancestral
domains are the ICCs/IPs private but community property. It is private simply because it is
not part of the public domain. But its private character ends there. The ancestral domain is
owned in common by the ICCs/IPs and not by one particular person. The IPRA itself provides
that areas within the ancestral domains, whether delineated or not, are presumed to be
communally held.209 These communal rights, however, are not exactly the same as coownership rights under the Civil Code.210 Co-ownership gives any co-owner the right to
demand partition of the property held in common. The Civil Code expressly provides that "no
co-owner shall be obliged to remain in the co-ownership." Each co-owner may demand at any
time the partition of the thing in common, insofar as his share is concerned. 211 To allow such a
right over ancestral domains may be destructive not only of customary law of the community
but of the very community itself.212
Communal rights over land are not the same as corporate rights over real property, much
less corporate condominium rights. A corporation can exist only for a maximum of fifty (50)
years subject to an extension of another fifty years in any single instance. 213 Every stockholder
has the right to disassociate himself from the corporation.214 Moreover, the corporation itself
may be dissolved voluntarily or involuntarily.215
Communal rights to the land are held not only by the present possessors of the land but
extends to all generations of the ICCs/IPs, past, present and future, to the domain. This is the
reason why the ancestral domain must be kept within the ICCs/IPs themselves. The domain
cannot be transferred, sold or conveyed to other persons. It belongs to the ICCs/IPs as a
community.

Ancestral lands are also held under the indigenous concept of ownership. The lands are
communal. These lands, however, may be transferred subject to the following limitations: (a)
only to the members of the same ICCs/IPs; (b) in accord with customary laws and traditions;
and (c) subject to the right of redemption of the ICCs/IPs for a period of 15 years if the land
was transferred to a non-member of the ICCs/IPs.
Following the constitutional mandate that "customary law govern property rights or relations
in determining the ownership and extent of ancestral domains,"216 the IPRA, by legislative fiat,
introduces a new concept of ownership. This is a concept that has long existed under
customary law.217
Custom, from which customary law is derived, is also recognized under the Civil Code as a
source of law.218 Some articles of the Civil Code expressly provide that custom should be
applied in cases where no codal provision is applicable.219 In other words, in the absence of
any applicable provision in the Civil Code, custom, when duly proven, can define rights and
liabilities.220
Customary law is a primary, not secondary, source of rights under the IPRA and uniquely
applies to ICCs/IPs. Its recognition does not depend on the absence of a specific provision in
the civil law. The indigenous concept of ownership under customary law is specifically
acknowledged and recognized, and coexists with the civil law concept and the laws on land
titling and land registration.221
To be sure, the indigenous concept of ownership exists even without a paper title. The CADT
is merely a "formal recognition" of native title. This is clear from Section 11 of the IPRA, to wit:
"Sec. 11. Recognition of Ancestral Domain Rights.- The rights of ICCs/IPs to their ancestral
domains by virtue of Native Title shall be recognized and respected. Formal recognition, when
solicited by ICCs/IPs concerned shall be embodied in a Certificate of Ancestral Domain Title,
which shall recognize the title of the concerned ICCs/IPs over the territories identified and
delineated."
The moral import of ancestral domain, native land or being native is "belongingness" to the
land, being people of the land- by sheer force of having sprung from the land since time
beyond recall, and the faithful nurture of the land by the sweat of one's brow. This is fidelity of
usufructuary relation to the land- the possession of stewardship through perduring, intimate
tillage, and the mutuality of blessings between man and land; from man, care for land; from
the land, sustenance for man.222
C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the Regalian Doctrine Enshrined in
Section 2, Article XII of the 1987 Constitution.
1. The Rights of ICCs/IPs Over Their Ancestral Domains and Lands

The IPRA grants the ICCs/IPs several rights over their ancestral domains and ancestral lands.
Section 7 provides for the rights over ancestral domains:
"Sec. 7. Rights to Ancestral Domains.- The rights of ownership and possession of ICCs/IPs to
their ancestral domains shall be recognized and protected. Such rights include:
a) Right of Ownership.- The right to claim ownership over lands, bodies of water
traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting
and fishing grounds, and all improvements made by them at any time within the
domains;
b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, the
right to develop, control and use lands and territories traditionally occupied,
owned, or used; to manage and conserve natural resources within the territories
and uphold the responsibilities for future generations; to benefit and share the
profits from allocation and utilization of the natural resources found therein; the
right to negotiate the terms and conditions for the exploration of natural resources
in the areas for the purpose of ensuring ecological, environmental protection and
the conservation measures, pursuant to national and customary laws; the right to
an informed and intelligent participation in the formulation and implementation of
any project, government or private, that wi ll affect or impact upon the ancestral
domains and to receive just and fair compensation for any damages which they may
sustain as a result of the project; and the right to effective measures by the
government to prevent any interference with, alienation and encroachment upon
these rights;"
c) Right to Stay in the Territories.- The right to stay in the territory and not to be
removed therefrom. No ICCs/IPs will be relocated without their free and prior
informed consent, nor through any means other than eminent domain. x x x;
d) Right in Case of Displacement.- In case displacement occurs as a result of natural
catastrophes, the State shall endeavor to resettle the displaced ICCs/IPs in suitable
areas where they can have temporary life support systems: x x x;
e) Right to Regulate the Entry of Migrants.- Right to regulate the entry of migrant
settlers and organizations into their domains;
f) Right to Safe and Clean Air and Water.-For this purpose, the ICCs/IPs shall have
access to integrated systems for the management of their inland waters and air
space;

g) Right to Claim Parts of Reservations.- The right to claim parts of the ancestral
domains which have been reserved for various purposes, except those reserved and
intended for common and public welfare and service;
h) Right to Resolve Conflict.- Right to resolve land conflicts in accordance with
customary laws of the area where the land is located, and only in default thereof
shall the complaints be submitted to amicable settlement and to the Courts of Justice
whenever necessary."
Section 8 provides for the rights over ancestral lands:
"Sec. 8. Rights to Ancestral Lands.- The right of ownership and possession of the ICCs/IPs to
their ancestral lands shall be recognized and protected.
a) Right to transfer land/property.- Such right shall include the right to transfer land
or property rights to/among members of the same ICCs/IPs, subject to customary
laws and traditions of the community concerned.
b) Right to Redemption.- In cases where it is shown that the transfer of land/property
rights by virtue of any agreement or devise, to a non-member of the concerned
ICCs/IPs is tainted by the vitiated consent of the ICCs/IPs, or is transferred for an
unconscionable consideration or price, the transferor ICC/IP shall have the right to
redeem the same within a period not exceeding fifteen (15) years from the date of
transfer."
Section 7 (a) defines the ICCs/IPs the right of ownership over their ancestral domains which
covers (a) lands, (b) bodies of water traditionally and actually occupied by the ICCs/IPs, (c)
sacred places, (d) traditional hunting and fishing grounds, and (e) all improvements made by
them at any time within the domains. The right of ownership includes the following rights: (1)
the right to develop lands and natural resources; (b) the right to stay in the territories; (c) the
right to resettlement in case of displacement; (d) the right to regulate the entry of migrants;
(e) the right to safe and clean air and water; (f) the right to claim parts of the a ncestral
domains as reservations; and (g) the right to resolve conflict in accordance with customary
laws.
Section 8 governs their rights to ancestral lands. Unlike ownership over the ancestral domains,
Section 8 gives the ICCs/IPs also the right to transfer the land or property rights to members of
the same ICCs/IPs or non-members thereof. This is in keeping with the option given to ICCs/IPs
to secure a torrens title over the ancestrallands, but not to domains.
2. The Right of ICCs/IPs to Develop Lands and Natural Resources Within the Ancestral Domains
Does Not Deprive the State of Ownership Over the Natural Resources and Control and
Supervision in their Development and Exploitation.

The Regalian doctrine on the ownership, management and utilization of natural resources is
declared in Section 2, Article XII of the 1987 Constitution, viz:

3. Congress may, by law, allow small-scale utilization of natural resources by Filipino

citizens;

"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 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, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.

4. For the large-scale exploration, development and utilization of minerals, petroleum

and other mineral oils, the President may enter into agreements with foreign-owned
corporations involving technical or financial assistance.

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."223
All lands of the public domain and all natural resources- 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. The Constitution provides
that in the exploration, development and utilization of these natural resources, the State
exercises full control and supervision, and may undertake the same in four (4) modes:
1. The State may directly undertake such activities; or
2. The State may enter into co-production, joint venture or production-sharing
agreements with Filipino citizens or qualified corporations;

As owner of the natural resources, the State is accorded primary power and responsibility in
the exploration, development and utilization of these natural resources. The State may
directly undertake the exploitation and development by itself, or, it may allow participation by
the private sector through co-production,224 joint venture,225 or production-sharing
agreements.226 These agreements may be for a period of 25 years, renewable for another 25
years. The State, through Congress, may allow the small-scale utilization of natural resources
by Filipino citizens. For the large-scale exploration of these resources, specifically minerals,
petroleum and other mineral oils, the State, through the President, may enter into technical
and financial assistance agreements with foreign-owned corporations.
Under the Philippine Mining Act of 1995, (R.A. 7942) and the People's Small-Scale Mining Act
of 1991 (R.A. 7076) the three types of agreements, i.e., co-production, joint venture or
production-sharing, may apply to both large-scale227 and small-scale mining.228 "Small-scale
mining" refers to "mining activities which rely heavily on manual labor using simple
implements and methods and do not use explosives or heavy mining equipment." 229
Examining the IPRA, there is nothing in the law that grants to the ICCs/IPs ownership over
the natural resources within their ancestral domains. The right of ICCs/IPs in their ancestral
domains includesownership, but this "ownership" is expressly defined and limited in Section
7 (a) as:
"Sec. 7. a) Right of ownership- The right to claim ownership over lands, bodies of water
traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing
grounds, and all improvements made by them at any time within the domains;"
The ICCs/IPs are given the right to claim ownership over "lands, bodies of water traditionally
and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and
all improvements made by them at any time within the domains." It will be noted that this
enumeration does not mention bodies of water not occupied by the
ICCs/IPs, minerals, coal, wildlife, flora and fauna in the traditional hunting grounds, fish in the
traditional fishing grounds, forests or timber in the sacred places, etc. and all other natural
resources found within the ancestral domains. Indeed, the right of ownership under Section 7
(a) does not cover "waters,minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, forests ortimber, wildlife, flora and fauna and all other natural
resources" enumerated in Section 2, Article XII of the 1987 Constitution as belonging to the
State.

The non-inclusion of ownership by the ICCs/IPs over the natural resources in Section 7(a)
complies with the Regalian doctrine.
(a) Section 1, Part II, Rule III of the Implementing Rules Goes Beyond the Parameters of Sec.
7 (a) of the IPRA And is Unconstitutional.
The Rules Implementing the IPRA230 in Section 1, Part II, Rule III reads:
"Section 1. Rights of Ownership. ICCs/IPs have rights of ownership over lands, waters,
and natural resources and all improvements made by them at any time within the ancestral
domains/ lands. These rights shall include, but not limited to, the right over the fruits, the right
to possess, the right to use, right to consume, right to exclude and right to recover ownership,
and the rights or interests over land and natural resources. The right to recover shall be
particularly applied to lands lost through fraud or any form or vitiated consent or transferred
for an unconscionable price."
Section 1 of the Implementing Rules gives the ICCs/IPs rights of ownership over "lands, waters
and natural resources." The term "natural resources" is not one of those expressly mentioned
in Section 7 (a) of the law. Our Constitution and jurisprudence clearly declare that the right to
claim ownership over land does not necessarily include the right to claim ownership over the
natural resources found on or under the land.231 The IPRA itself makes a distinction between
land and natural resources. Section 7 (a) speaks of the right of ownership only over the land
within the ancestral domain. It is Sections 7 (b) and 57 of the law that speak of natural
resources, and these provisions, as shall be discussed later, do not give the ICCs/IPs the right
of ownership over these resources.
The constitutionality of Section 1, Part II, Rule III of the Implementing Rules was not specifically
and categorically challenged by petitioners. Petitioners actually assail the constitutionality of
the Implementing Rules in general.232Nevertheless, to avoid any confusion in the
implementation of the law, it is necessary to declare that the inclusion of "natural resources"
in Section 1, Part II, Rule III of the Implementing Rules goes beyond the parameters of Section
7 (b) of the law and is contrary to Section 2, Article XII of the 1987 Constitution.
(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b) of the IPRA Is Allowed Under
Paragraph 3, Section 2 of Article XII of the Constitution.
Ownership over natural resources remain with the State and the IPRA in Section 7 (b) merely
grants the ICCs/IPs the right to manage them, viz:
"Sec. 7 (b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, right
to develop, control and use lands and territories traditionally occupied, owned, or used; to
manage and conserve natural resources within the territories and uphold the responsibilities
for future generations; to benefit and share the profits from allocation and utilization of the

natural resources found therein; the right to negotiate the terms and conditions for the
exploration of natural resources in the areas for the purpose of ensuring ecological,
environmental protection and the conservation measures, pursuant to national and customary
laws; the right to an informed and intelligent participation in the formulation and
implementation of any project, government or private, that will affect or impact upon the
ancestral domains and to receive just and fair compensation for any damages which they may
sustain as a result of the project; and the right to effective measures by the government to
prevent any interference with, alienation and encroachment upon these rights;"
The right to develop lands and natural resources under Section 7 (b) of the IPRA enumerates
the following rights:
a) the right to develop, control and use lands and territories traditionally occupied;
b) the right to manage and conserve natural resources within the territories and
uphold the responsibilities for future generations;
c) the right to benefit and share the profits from the allocation and utilization of
the natural resources found therein;
d) the right to negotiate the terms and conditions for the exploration of natural
resources for the purpose of ensuring ecological, environmental protection and the
conservation measures, pursuant to national and customary laws;
e) the right to an informed and intelligent participation in the formulation and
implementation of any project, government or private, that will affect or impact
upon the ancestral domains and to receive just and fair compensation for any
damages which they may sustain as a result of the project;
f) the right to effective measures by the government to prevent any interference
with, alienation and encroachment upon these rights.233
Ownership over the natural resources in the ancestral domains remains with the State and
the ICCs/IPs are merely granted the right to "manage and conserve" them for future
generations, "benefit and share" the profits from their allocation and utilization, and
"negotiate the terms and conditions for their exploration" for the purpose of "ensuring
ecological and environmental protection and conservation measures." It must be noted that
the right to negotiate the terms and conditions over the natural resources covers only their
exploration which must be for the purpose of ensuring ecological and environmental
protection of, and conservation measures in the ancestral domain. It does not extend to the
exploitation and development of natural resources.

Simply stated, the ICCs/IPs' rights over the natural resources take the form of management
or stewardship. For the ICCs/IPs may use these resources and share in the profits of their
utilization or negotiate the terms for their exploration. At the same time, however, the
ICCs/IPs must ensure that the natural resources within their ancestral domains are conserved
for future generations and that the "utilization" of these resources must not harm the ecology
and environment pursuant to national and customary laws.234

Section 57 of the IPRA does not give the ICCs/IPs the right to "manage and conserve" the
natural resources. Instead, the law only grants the ICCs/IPs "priority rights" in the development
or exploitation thereof. Priority means giving preference. Having priority rights over the
natural resources does not necessarily mean ownership rights. The grant of priority rights
implies that there is a superior entity that owns these resources and this entity has the power
to grant preferential rights over the resources to whosoever itself chooses.

The limited rights of "management and use" in Section 7 (b) must be taken to contemplate
small-scale utilization of natural resources as distinguished from large-scale. Small-scale
utilization of natural resources is expressly allowed in the third paragraph of Section 2,
Article XII of the Constitution "in recognition of the plight of forest dwellers, gold panners,
marginal fishermen and others similarly situated who exploit our natural resources for their
daily sustenance and survival."235 Section 7 (b) also expressly mandates the ICCs/IPs to manage
and conserve these resources and ensure environmental and ecological protection within the
domains, which duties, by their very nature, necessarily reject utilization in a large-scale.

Section 57 is not a repudiation of the Regalian doctrine. Rather, it is an affirmation of the said
doctrine that all natural resources found within the ancestral domains belong to the State. It
incorporates by implication the Regalian doctrine, hence, requires that the provision be read in
the light of Section 2, Article XII of the 1987 Constitution. Interpreting Section 2, Article XII of
the 1987 Constitution237 in relation to Section 57 of IPRA, the State, as owner of these
natural resources, may directly undertake the development and exploitation of the natural
resources by itself, or in the alternative, it may recognize the priority rights of the ICCs/IPs as
owners of the land on which the natural resources are found by entering into a coproduction, joint venture, or production-sharing agreement with them. The State may
likewise enter into any of said agreements with a non-member of the ICCs/IPs, whether
natural or juridical, or enter into agreements with foreign-owned corporations involving
either technical or financial assistance for the large-scale exploration, development and
utilization of minerals, petroleum, and other mineral oils, or allow such non-member to
participate in its agreement with the ICCs/IPs. If the State decides to enter into an agreement
with a non-ICC/IP member, the National Commission on Indigenous Peoples (NCIP) shall
ensure that the rights of the ICCs/IPs under the agreement shall be protected. The agreement
shall be for a period of 25 years, renewable for another 25 years.

(c) The Large-Scale Utilization of Natural Resources In Section 57 of the IPRA Is Allowed
Under Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.
Section 57 of the IPRA provides:
"Sec. 57. Natural Resources within Ancestral Domains.- The ICCs/IPs shall have priority rights in
theharvesting, extraction, development or exploitation of any natural resources within the
ancestral domains. A non-member of the ICCs/IPs concerned may be allowed to take part in
the development and utilization of the natural resources for a period of not exceeding twentyfive (25) years renewable for not more than twenty-five (25) years: Provided, That a formal and
written agreement is entered into with the ICCs/IPs concerned or that the community,
pursuant to its own decision-making process, has agreed to allow such operation: Provided
finally, That the NCIP may exercise visitorial powers and take appropriate action to safeguard
the rights of the ICCs/IPs under the same contract."
Section 57 speaks of the "harvesting, extraction, development or exploitation of natural
resources within ancestral domains" and "gives the ICCs/IPs 'priority rights' therein." The
terms "harvesting, extraction, development or exploitation" of any natural resources within
the ancestral domains obviously refer to large-scale utilization. It is utilization not merely for
subsistence but for commercial or other extensive use that require technology other than
manual labor.236 The law recognizes the probability of requiring a non-member of the ICCs/IPs
to participate in the development and utilization of the natural resources and thereby allows
such participation for a period of not more than 25 years, renewable for another 25 years. This
may be done on condition that a formal written agreement be entered into by the nonmember and members of the ICCs/IPs.

To reiterate, in the large-scale utilization of natural resources within the ancestral domains,
the State, as owner of these resources, has four (4) options: (1) it may, of and by itself, directly
undertake the development and exploitation of the natural resources; or (2) it may recognize
the priority rights of the ICCs/IPs by entering into an agreement with them for such
development and exploitation; or (3) it may enter into an agreement with a non-member of
the ICCs/IPs, whether natural or juridical, local or foreign; or (4) it may allow such non-member
to participate in the agreement with the ICCs/IPs.
The rights granted by the IPRA to the ICCs/IPs over the natural resources in their ancestral
domains merely gives the ICCs/IPs, as owners and occupants of the land on which the
resources are found, the right to the small-scale utilization of these resources, and at the
same time, a priority in their large-scale development and exploitation. Section 57 does not
mandate the State to automatically give priority to the ICCs/IPs. The State has several
options and it is within its discretion to choose which option to pursue. Moreover, there is
nothing in the law that gives the ICCs/IPs the right to solely undertake the large-scale
development of the natural resources within their domains. The ICCs/IPs must undertake such
endeavour alwaysunder State supervision or control. This indicates that the State does not
lose control and ownership over the resources even in their exploitation. Sections 7 (b) and 57
of the law simply give due respect to the ICCs/IPs who, as actual occupants of the land where

the natural resources lie, have traditionally utilized these resources for their subsistence and
survival.
Neither is the State stripped of ownership and control of the natural resources by the
following provision:
"Section 59. Certification Precondition.- All departments and other governmental agencies shall
henceforth be strictly enjoined from issuing, renewing or granting any concession, license or
lease, or entering into any production-sharing agreement. without prior certification from the
NCIP that the area affected does not overlap with any ancestral domain. Such certification
shall only be issued after a field-based investigation is conducted by the Ancestral Domains
Office of the area concerned: Provided, That no certification shall be issued by the NCIP
without the free and prior informed and written consent of the ICCs/IPs concerned: Provided,
further, That no department, government agency or government-owned or -controlled
corporation may issue new concession, license, lease, or production sharing agreement while
there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the
right to stop or suspend, in accordance with this Act, any project that has not satisfied the
requirement of this consultation process."
Concessions, licenses, lease or production-sharing agreements for the exploitation of natural
resources shall not be issued, renewed or granted by all departments and government
agencies without prior certification from the NCIP that the area subject of the agreement does
not overlap with any ancestral domain. The NCIP certification shall be issued only after a fieldbased investigation shall have been conducted and the free and prior informed written
consent of the ICCs/IPs obtained. Non-compliance with the consultation requirement gives the
ICCs/IPs the right to stop or suspend any project granted by any department or government
agency.
As its subtitle suggests, this provision requires as a precondition for the issuance of any
concession, license or agreement over natural resources, that a certification be issued by the
NCIP that the area subject of the agreement does not lie within any ancestral domain. The
provision does not vest the NCIP with power over the other agencies of the State as to
determine whether to grant or deny any concession or license or agreement. It merely gives
the NCIP the authority to ensure that the ICCs/IPs have been informed of the agreement and
that their consent thereto has been obtained. Note that the certification applies to
agreements over natural resources that do not necessarily lie within the ancestral domains.
For those that are found within the said domains, Sections 7(b) and 57 of the IPRA apply.
V. THE IPRA IS A RECOGNITION OF OUR ACTIVE PARTICIPATION IN THE INDIGENOUS
INTERNATIONAL MOVEMENT.
The indigenous movement can be seen as the heir to a history of anti-imperialism stretching
back to prehistoric times. The movement received a massive impetus during the 1960's from

two sources. First, the decolonization of Asia and Africa brought into the limelight the
possibility of peoples controlling their own destinies. Second, the right of self-determination
was enshrined in the UN Declaration on Human Rights.238 The rise of the civil rights movement
and anti-racism brought to the attention of North American Indians, Aborigines in Australia,
and Maori in New Zealand the possibility of fighting for fundamental rights and freedoms.
In 1974 and 1975, international indigenous organizations were founded, 239 and during the
1980's, indigenous affairs were on the international agenda. The people of the Philippine
Cordillera were the first Asians to take part in the international indigenous movement. It was
the Cordillera People's Alliance that carried out successful campaigns against the building of
the Chico River Dam in 1981-82 and they have since become one of the best-organized
indigenous bodies in the world.240
Presently, there is a growing concern for indigenous rights in the international scene. This
came as a result of the increased publicity focused on the continuing disrespect for indigenous
human rights and the destruction of the indigenous peoples' environment, together with the
national governments' inability to deal with the situation.241Indigenous rights came as a result
of both human rights and environmental protection, and have become a part of today's
priorities for the international agenda.242
International institutions and bodies have realized the necessity of applying policies, programs
and specific rules concerning IPs in some nations. The World Bank, for example, first adopted a
policy on IPs as a result of the dismal experience of projects in Latin America. 243 The World
Bank now seeks to apply its current policy on IPs to some of its projects in Asia. This policy has
provided an influential model for the projects of the Asian Development Bank.244
The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and declares as
a State policy the promotion of their rights within the framework of national unity and
development.245 The IPRA amalgamates the Philippine category of ICCs with the international
category of IPs,246 and is heavily influenced by both the International Labor Organization (ILO)
Convention 169 and the United Nations (UN) Draft Declaration on the Rights of Indigenous
Peoples.247
ILO Convention No. 169 is entitled the "Convention Concerning Indigenous and Tribal Peoples
in Independent Countries"248 and was adopted on June 27, 1989. It is based on the Universal
Declaration of Human Rights, the International Covenant on Economic, Social and Cultural
Rights, the International Covenant on Civil and Political Rights, and many other international
instruments on the prevention of discrimination.249 ILO Convention No. 169 revised the
"Convention Concerning the Protection and Integration of Indigenous and Other Tribal and
Semi-Tribal Populations in Independent Countries" (ILO No. 107) passed on June 26, 1957.
Developments in international law made it appropriate to adopt new international standards
on indigenous peoples "with a view to removing the assimilationist orientation of the earlier
standards," and recognizing the aspirations of these peoples to exercise control over their own
institutions, ways of life and economic development."250

CONCLUSION
The struggle of the Filipinos throughout colonial history had been plagued by ethnic and
religious differences. These differences were carried over and magnified by the Philippine
government through the imposition of a national legal order that is mostly foreign in origin or
derivation.251 Largely unpopulist, the present legal system has resulted in the alienation of a
large sector of society, specifically, the indigenous peoples. The histories and cultures of the
indigenes are relevant to the evolution of Philippine culture and are vital to the understanding
of contemporary problems.252 It is through the IPRA that an attempt was made by our
legislators to understand Filipino society not in terms of myths and biases but through
common experiences in the course of history. The Philippines became a democracy a
centennial ago and the decolonization process still continues. If the evolution of the Filipino
people into a democratic society is to truly proceed democratically, i.e., if the Filipinos as a
whole are to participate fully in the task of continuing democratization, 253 it is this Court's duty
to acknowledge the presence of indigenous and customary laws in the country and affirm their
co-existence with the land laws in our national legal system.
With the foregoing disquisitions, I vote to uphold the constitutionality of the Indigenous
Peoples Rights Act of 1997.