Oposa vs. Factoran, G.R. No.

101083 July 30, 1993, 224 SCRA 789

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 101083 July 30, 1993

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 SIGRID 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 DESAMPRADO, 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, MARILIN, 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.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology
which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility"
and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a
cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the
unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro
Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock
and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared
for the protection of our environment and natural resources. The original defendant was the Honorable
Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources
(DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was
subsequently ordered upon proper motion by the petitioners.1 The complaint2 was instituted as a
taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the
country's virgin tropical forests." The same was filed for themselves and others who are equally
concerned about the preservation of said resource but are "so numerous that it is impracticable to bring
them all before the Court." The minors further asseverate that they "represent their generation as well as
generations yet unborn."4 Consequently, it is prayed for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his
behalf to —

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving
new timber license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a
land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in
which varied, rare and unique species of flora and fauna may be found; these rainforests contain a
genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous
Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence
reveals that in order to maintain a balanced and healthful ecology, the country's land area should be
utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this
balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as (a)
water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as
of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt
water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of
Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity,
with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum —
approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural
communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers
and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction
in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire
country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of
forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and
operated for the purpose of supplying water for domestic uses, irrigation and the generation of electric
power, and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led to
perplexing and catastrophic climatic changes such as the phenomenon of global warming, otherwise
known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation
are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial
notice. This notwithstanding, they expressed their intention to present expert witnesses as well as
documentary, photographic and film evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests
constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of
said rainforests or four per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are
left, barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million
hectares of immature and uneconomical secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber license
agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for
commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares
per hour — nighttime, Saturdays, Sundays and holidays included — the Philippines will be bereft
of forest resources after the end of this ensuing decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this
continued trend of deforestation to the plaintiff minor's generation and to generations yet
unborn are evident and incontrovertible. As a matter of fact, the environmental damages
enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the
generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the remaining
forest stands will work great damage and irreparable injury to plaintiffs — especially plaintiff
minors and their successors — who may never see, use, benefit from and enjoy this rare and
unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural resource
property he holds in trust for the benefit of plaintiff minors and succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are
entitled to protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2,
1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious
damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the
rights of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic),
bare, barren and devoid of the wonderful flora, fauna and indigenous cultures which the
Philippines had been abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public
policy enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is
the policy of the State —

(a) to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future generations of
Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and
well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is

contradictory to the Constitutional policy of the State to —

a. effect "a more equitable distribution of opportunities, income and wealth" and "make
full and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14,
Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind — the natural law — and
violative of plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the instant action to
arrest the unabated hemorrhage of the country's vital life support systems and continued rape of
Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint
based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue
raised by the plaintiffs is a political question which properly pertains to the legislative or executive
branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1)
the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action
presents a justiciable question as it involves the defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss.7 In
the said order, not only was the defendant's claim — that the complaint states no cause of action against
him and that it raises a political question — sustained, the respondent Judge further ruled that the
granting of the relief prayed for would result in the impairment of contracts which is prohibited by the
fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court
and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge
gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only
represent their children, but have also joined the latter in this case.8

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their
respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the
Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987
Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and
self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves
a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners
maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit
that even if TLAs may be considered protected by the said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific
legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing
in the complaint but vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that
the question of whether logging should be permitted in the country is a political question which should be
properly addressed to the executive or legislative branches of Government. They therefore assert that the
petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a
bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the
State without due process of law. Once issued, a TLA remains effective for a certain period of time —
usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled
unless the holder has been found, after due notice and hearing, to have violated the terms of the
agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil
Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue
with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject
matter of the complaint is of common and general interest not just to several, but to all citizens of the
Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally
impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are
numerous and representative enough to ensure the full protection of all concerned interests. Hence, all
the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are
present both in the said civil case and in the instant petition, the latter being but an incident to the
former.

This case, however, has a special and novel element. Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves,
for others of their generation and for the succeeding generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration, development and utilization be equitably accessible to
the present as well as future generations. 10Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put
a little differently, the minors' assertion of their right to a sound environment constitutes, at the same
time, the performance of their obligation to ensure the protection of that right for the generations to
come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the
petition.

After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the
issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and
rule against the respondent Judge's challenged order for having been issued with grave abuse of
discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help
but agree with the defendant. For although we believe that plaintiffs have but the
noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a
specific legal right they are seeking to enforce and protect, or a specific legal wrong
they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague assumptions and vague
 conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action
in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed
with political color and involving a matter of public policy, may not be taken
cognizance of by this Court without doing violence to the sacred principle of
"Separation of Powers" of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new timber license agreements. For
to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is
replete with vague assumptions and conclusions based on unverified data. A reading of the complaint
itself belies these conclusions.

The complaint focuses on one specific fundamental legal right — the right to a balanced and healthful
ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:

Sec. 16. The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding
section of the same article:

Sec. 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and
State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the
civil and political rights enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly
stressed by the petitioners — the advancement of which may even be said to predate all governments
and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for
they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far when all else would
be lost not only for the present generation, but also for those to come — generations which stand to
inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing
the environment. During the debates on this right in one of the plenary sessions of the 1986
Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta
and Commissioner Adolfo Azcuna who sponsored the section in question:
 MR. VILLACORTA:

Does this section mandate the State to provide sanctions

against all forms of pollution — air, water and noise
pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic)

environment necessarily carries with it the correlative duty of
not impairing the same and, therefore, sanctions may be
provided for impairment of environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of the
country's forests.

Without such forests, the ecological or environmental balance would be irreversiby disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well
as the other related provisions of the Constitution concerning the conservation, development and
utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June
1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environment and
Natural Resources "shall be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including those in reservation and watershed
areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as
may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the
welfare of the present and future generations of Filipinos." Section 3 thereof makes the following
statement of policy:

Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to

ensure the sustainable use, development, management, renewal, and conservation
of the country's forest, mineral, land, off-shore areas and other natural resources,
including the protection and enhancement of the quality of the environment, and
equitable access of the different segments of the population to the development
and the use of the country's natural resources, not only for the present generation
but for future generations as well. It is also the policy of the state to recognize and
apply a true value system including social and environmental cost implications
relative to their utilization, development and conservation of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987,15 specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the
Filipino people, the full exploration and development as well as the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a sound ecological balance
and protecting and enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such natural resources
 equitably accessible to the different segments of the present as well as future
generations.

(2) The State shall likewise recognize and apply a true value system that takes into
account social and environmental cost implications relative to the utilization,
development and conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and
enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's
being subject to law and higher authority. Said section provides:

Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources

shall be primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the
State's constitutional mandate to control and supervise the exploration,
development, utilization, and conservation of the country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the
bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental right" of the present and future generations. On 6
June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment
Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain
and improve conditions under which man and nature can thrive in productive and enjoyable harmony
with each other, (b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to
a life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as
trustee and guardian of the environment for succeeding generations." 17 The latter statute, on the other
hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as
clear as the DENR's duty — under its mandate and by virtue of its powers and functions under E.O. No.
192 and the Administrative Code of 1987 — to protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect or
protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which
they claim was done with grave abuse of discretion, violated their right to a balanced and healthful
ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the
other; and its essential elements are legal right of the plaintiff, correlative
obligation of the defendant, and act or omission of the defendant in violation of
said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to
state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the
facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of
falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted.
The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court
render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and
circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of
action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed
hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there is
a blot on the legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they
may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as
the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or
determination by the executive or legislative branches of Government is not squarely put in issue. What is
principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects
executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article
VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred as law. The second part of
the authority represents a broadening of judicial power to enable the courts of
justice to review what was before forbidden territory, to wit, the discretion of the
political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme
Court, the power to rule upon even the wisdom of the decisions of the executive
and the legislature and to declare their acts invalid for lack or excess of jurisdiction
because tainted with grave abuse of discretion. The catch, of course, is the meaning
of "grave abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
 In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue presented
before us was political in nature, we would still not be precluded from revolving it
under the expanded jurisdiction conferred upon us that now covers, in proper
cases, even the political question. Article VII, Section 1, of the Constitution clearly
provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts
clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and desist from receiving,
accepting, processing, renewing or approving new timber license agreements. For
to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in
his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost
infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber
license holders because he would have forever bound the Government to strictly respect the said licenses
according to their terms and conditions regardless of changes in policy and the demands of public interest
and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must
be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may
amend, modify, replace or rescind any contract, concession, permit, licenses or any
other form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a
contract, property or a property right protested by the due process clause of the Constitution.
In Tan vs. Director of Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber
license is not a contract within the purview of the due process clause; it is only a
license or privilege, which can be validly withdrawn whenever dictated by public
interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful,

and is not a contract between the authority, federal, state, or municipal, granting it
and the person to whom it is granted; neither is it property or a property right, nor
does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held
that the granting of license does not create irrevocable rights, neither is it property
or property rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26

. . . Timber licenses, permits and license agreements are the principal instruments
by which the State regulates the utilization and disposition of forest resources to
 the end that public welfare is promoted. And it can hardly be gainsaid that they
merely evidence a privilege granted by the State to qualified entities, and do not
vest in the latter a permanent or irrevocable right to the particular concession area
and the forest products therein. They may be validly amended, modified, replaced
or rescinded by the Chief Executive when national interests so require. Thus, they
are not deemed contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does not
involve a law or even an executive issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that
a law has actually been passed mandating cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police power of the state for the purpose
of advancing the right of the people to a balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to be

absolute. The same is understood to be subject to reasonable legislative regulation
aimed at the promotion of public health, moral, safety and welfare. In other words,
the constitutional guaranty of non-impairment of obligations of contract is limited
by the exercise of the police power of the State, in the interest of public health,
safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life
Insurance Co. vs. Auditor General,30 to wit:

Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that both
shall be free of governmental interference. But neither property rights nor contract
rights are absolute; for government cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise his freedom of contract to work
them harm. Equally fundamental with the private right is that of the public to
regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing
or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed in
the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of
right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged
Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The
petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the
questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to
my mind, is one of the most important cases decided by this Court in the last few years. The seminal
principles laid down in this decision are likely to influence profoundly the direction and course of the
protection and management of the environment, which of course embraces the utilization of all the
natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself,
what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and,
maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their
suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of
"class" here involved — membership in this "class" appears to embrace everyone living in the country
whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The
Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency directly concerned and the private persons or
entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action
may be found under any and all circumstances, or whether some failure to act, in the first instance, on the
part of the governmental agency concerned must be shown ("prior exhaustion of administrative
remedies"), is not discussed in the decision and presumably is left for future determination in an
appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific fundamental
legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that
"the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing excessive violence to language. It is in fact very
difficult to fashion language more comprehensive in scope and generalized in character than a right to "a
balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers,
inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs
and other living sea resources through the use of dynamite or cyanide and other chemicals;
contamination of ground water resources; loss of certain species of fauna and flora; and so on. The other
statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1,
Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to
be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article
II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other
hand, a compendious collection of more "specific environment management policies" and "environment
quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified
the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the headings and sub-headings
mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries of implementation of that Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of
Article II of the Constitution are self-executing and judicially enforceable even in their present form. The
implications of this doctrine will have to be explored in future cases; those implications are too large and
far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution —
that is or may be violated by the actions, or failures to act, imputed to the public respondent by
petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for.
To my mind, the Court should be understood as simply saying that such a more specific legal right or
rights may well exist in our corpus of law, considering the general policy principles found in the
Constitution and the existence of the Philippine Environment Code, and that the trial court should have
given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a
motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable regulation
is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government. (Emphasis supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave abuse
of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of social and economic policy making. At
least in respect of the vast area of environmental protection and management, our courts have
no claim to special technical competence and experience and professional qualification. Where
no specific, operable norms and standards are shown to exist, then the policy making
departments — the legislative and executive departments — must be given a real and effective
opportunity to fashion and promulgate those norms and standards, and to implement them
before the courts should intervene.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements
or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings
below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon
proof of breach by the timber companies of one or more of the specific terms and conditions of their
concession agreements (and this, petitioners implicitly assume), what will those companies litigate about?
The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners
should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights
and the claimed wrongful acts or failures to act of public respondent administrative agency. They may
also controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the
circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the forest
cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's
decision issued today should, however, be subjected to closer examination.

# Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to
my mind, is one of the most important cases decided by this Court in the last few years. The seminal
principles laid down in this decision are likely to influence profoundly the direction and course of the
protection and management of the environment, which of course embraces the utilization of all the
natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself,
what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and,
maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their
suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of
"class" here involved — membership in this "class" appears to embrace everyone living in the country
whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The
Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency directly concerned and the private persons or
entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action
may be found under any and all circumstances, or whether some failure to act, in the first instance, on the
part of the governmental agency concerned must be shown ("prior exhaustion of administrative
remedies"), is not discussed in the decision and presumably is left for future determination in an
appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific fundamental
legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that
"the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing excessive violence to language. It is in fact very
difficult to fashion language more comprehensive in scope and generalized in character than a right to "a
balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers,
inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs
and other living sea resources through the use of dynamite or cyanide and other chemicals;
contamination of ground water resources; loss of certain species of fauna and flora; and so on. The other
statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1,
Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to
be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article
II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other
hand, a compendious collection of more "specific environment management policies" and "environment
quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified
the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the headings and sub-headings
mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries of implementation of that Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of
Article II of the Constitution are self-executing and judicially enforceable even in their present form. The
implications of this doctrine will have to be explored in future cases; those implications are too large and
far-reaching in nature even to be hinted at here.

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution —
that is or may be violated by the actions, or failures to act, imputed to the public respondent by
petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for.
To my mind, the Court should be understood as simply saying that such a more specific legal right or
rights may well exist in our corpus of law, considering the general policy principles found in the
Constitution and the existence of the Philippine Environment Code, and that the trial court should have
given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a
motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable regulation
is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government. (Emphasis supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave abuse
of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of social and economic policy making. At
least in respect of the vast area of environmental protection and management, our courts have
no claim to special technical competence and experience and professional qualification. Where
no specific, operable norms and standards are shown to exist, then the policy making
departments — the legislative and executive departments — must be given a real and effective
opportunity to fashion and promulgate those norms and standards, and to implement them
before the courts should intervene.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements
or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings
below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon
proof of breach by the timber companies of one or more of the specific terms and conditions of their
concession agreements (and this, petitioners implicitly assume), what will those companies litigate about?
The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners
should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights
and the claimed wrongful acts or failures to act of public respondent administrative agency. They may
also controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the
circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment, including the forest
cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's
decision issued today should, however, be subjected to closer examination.
Ysmael v Deputy Executive Secretary [G.R. No. 79538 October 18, 1990]

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 79538 October 18, 1990

FELIPE YSMAEL, JR. & CO., INC., petitioner,

vs.
THE DEPUTY EXECUTIVE SECRETARY, THE SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES,
THE DIRECTOR OF THE BUREAU OF FOREST DEVELOPMENT and TWIN PEAKS DEVELOPMENT AND
REALTY CORPORATION, respondents.

Tañada, Vivo & Tan for petitioner.

Antonio E. Escober and Jurado Law Office for respondent Twin Peaks Development Corporation.

COURTS, J.:

Soon after the change of government in February 1986, petitioner sent a letter dated March 17, 1986 to
the Office of the President, and another letter dated April 2, 1986 to Minister Ernesto Maceda of the
Ministry of Natural Resources [MNR], seeking: (1) the reinstatement of its timber license agreement
which was cancelled in August 1983 during the Marcos administration; (2) the revocation of TLA No. 356
which was issued to Twin Peaks Development and Realty Corporation without public bidding and in
violation of forestry laws, rules and regulations; and, (3) the issuance of an order allowing petitioner to
take possession of all logs found in the concession area [Annexes "6" and "7" of the Petition; Rollo, pp. 54-
63].

Petitioner made the following allegations:

(a) That on October 12, 1965, it entered into a timber license agreement designated as TLA No. 87 with
the Department of Agriculture and Natural Resources, represented by then Secretary Jose Feliciano,
wherein it was issued an exclusive license to cut, collect and remove timber except prohibited species
within a specified portion of public forest land with an area of 54,920 hectares located in the municipality
of Maddela, province of Nueva Vizcaya * from October 12, 1965 until June 30, 1990;

(b) That on August 18, 1983, the Director of the Bureau of Forest Development [hereinafter referred to as
"Bureau"], Director Edmundo Cortes, issued a memorandum order stopping all logging operations in
Nueva Vizcaya and Quirino provinces, and cancelling the logging concession of petitioner and nine other
forest concessionaires, pursuant to presidential instructions and a memorandum order of the Minister of
Natural Resources Teodoro Pena [Annex "5" of the Petition; Rollo, p. 49];
(c) that on August 25, 1983, petitioner received a telegram from the Bureau, the contents of which were
as follows:

PURSUANT TO THE INSTRUCTIONS OF THE PRESIDENT YOU ARE REQUESTED TO

STOP ALL LOGGING OPERATIONS TO CONSERVE REMAINING FORESTS PLEASE
CONDUCT THE ORDERLY PULL-OUT OF LOGGING MACHINERIES AND EQUIPMENT
AND COORDINATE WITH THE RESPECTIVE DISTRICT FORESTERS FOR THE
INVENTORY OF LOGS CUT PRIOR TO THIS ORDER THE SUBMISSION OF A
COMPLIANCE REPORT WITHIN THIRTY DAYS SHALL BE APPRECIATED — [Annex "4"
of the Petition; Rollo, p. 48];

(d) That after the cancellation of its timber license agreement, it immediately sent a letter addressed to
then President Ferdinand Marcos which sought reconsideration of the Bureau's directive, citing in support
thereof its contributions to alleging that it was not given the forest conservation and opportunity to be
heard prior to the cancellation of its logging 531, but no operations (Annex "6" of the Petition; Rollo, pp.
50 favorable action was taken on this letter;

(e) That barely one year thereafter, approximately one-half or 26,000 hectares of the area formerly
covered by TLA No. 87 was re-awarded to Twin Peaks Development and Reality Corporation under TLA
No. 356 which was set to expire on July 31, 2009, while the other half was allowed to be logged by
Filipinas Loggers, Inc. without the benefit of a formal award or license; and,

(f) That the latter entities were controlled or owned by relatives or cronies of deposed President
Ferdinand Marcos. Acting on petitioner's letter, the MNR through then Minister Ernesto Maceda issued
an order dated July 22, 1986 denying petitioner's request. The Ministry ruled that a timber license was not
a contract within the due process clause of the Constitution, but only a privilege which could be
withdrawn whenever public interest or welfare so demands, and that petitioner was not discriminated
against in view of the fact that it was among ten concessionaires whose licenses were revoked in 1983.
Moreover, emphasis was made of the total ban of logging operations in the provinces of Nueva Ecija,
Nueva Vizcaya, Quirino and Ifugao imposed on April 2, 1986, thus:

xxx xxx xxx

It should be recalled that [petitioner's] earlier request for reinstatement has been
denied in view of the total ban of all logging operations in the provinces of Nueva
Ecija, Nueva Vizcaya, Quirino and Ifugao which was imposed for reasons of
conservation and national security.

The Ministry imposed the ban because it realizes the great responsibility it bear [sic]
in respect to forest t considers itself the trustee thereof. This being the case, it has
to ensure the availability of forest resources not only for the present, but also for
the future generations of Filipinos.

On the other hand, the activities of the insurgents in these parts of the country are
well documented. Their financial demands on logging concessionaires are well
known. The government, therefore, is well within its right to deprive its enemy of
sources of funds in order to preserve itself, its established institutions and the
liberty and democratic way of life of its people.

xxx xxx xxx

 [Annex "9" of the Petition, pp. 2-4; Rollo, pp. 65-67.]

Petitioner moved for reconsideration of the aforestated order reiterating, among others. its request that
TLA No. 356 issued to private respondent be declared null and void. The MNR however denied this motion
in an order dated September 15, 1986. stating in part:

xxx xxx xxx

Regarding [petitioner's] request that the award of a 26,000 hectare portion of TLA
No. 87 to Twin Peaks Realty Development Corporation under TLA No. 356 be
declared null and void, suffice it to say that the Ministry is now in the process of
reviewing all contracts, permits or other form of privileges for the exploration,
development, exploitation, or utilization of natural resources entered into, granted,
issued or acquired before the issuance of Proclamation No. 3, otherwise known as
the Freedom Constitution for the purpose of amending, modifying or revoking them
when the national interest so requires.

xxx xxx xxx

The Ministry, through the Bureau of Forest Development, has jurisdiction and
authority over all forest lands. On the basis of this authority, the Ministry issued the
order banning all logging operations/activities in Quirino province, among others,
where movant's former concession area is located. Therefore, the issuance of an
order disallowing any person or entity from removing cut or uncut logs from the
portion of TLA No. 87, now under TLA No. 356, would constitute an unnecessary or
superfluous act on the part of the Ministry.

xxx xxx xxx

[Annex "11" of the Petition, pp. 3-4; Rollo, pp. 77-78.]

On November 26, 1986, petitioner's supplemental motion for reconsideration was likewise denied.
Meanwhile, per MNR Administrative Order No. 54, series of 1986, issued on November 26, 1986, the
logging ban in the province of Quirino was lifted.

Petitioner subsequently appealed from the orders of the MNR to the Office of the President. In a
resolution dated July 6, 1987, the Office of the President, acting through then Deputy Executive Secretary
Catalino Macaraig, denied petitioner's appeal for lack of merit. The Office of the President ruled that the
appeal of petitioner was prematurely filed, the matter not having been terminated in the MNR.
Petitioner's motion for reconsideration was denied on August 14, 1987.

Hence, petitioner filed directly with this Court a petition for certiorari, with prayer for the issuance of a
restraining order or writ of preliminary injunction, on August 27, 1987. On October 13, 1987, it filed a
supplement to its petition for certiorari. Thereafter, public and private respondents submitted their
respective comments, and petitioner filed its consolidated reply thereto. In a resolution dated May 22,
1989, the Court resolved to give due course to the petition.

After a careful study of the circumstances in the case at bar, the Court finds several factors which militate
against the issuance of a writ of certiorari in favor of petitioner.
1. Firstly, the refusal of public respondents herein to reverse final and executory administrative orders
does not constitute grave abuse of discretion amounting to lack or excess of jurisdiction.

It is an established doctrine in this jurisdiction that the decisions and orders of administrative agencies
have upon their finality, the force and binding effect of a final judgment within the purview of the
doctrine of res judicata. These decisions and orders are as conclusive upon the rights of the affected
parties as though the same had been rendered by a court of general jurisdiction. The rule of res
judicata thus forbids the reopening of a matter once determined by competent authority acting within
their exclusive jurisdiction [See Brillantes v. Castro, 99 Phil. 497 (1956); Ipekdjian Merchandising Co., Inc.
v. Court of Tax Appeals, G.R. No. L-15430, September 30, 1963, 9 SCRA 72; San Luis v. Court of Appeals,
G.R. No. 80160, June 26, 1989].

In the case at bar, petitioner's letters to the Office of the President and the MNR [now the Department of
Environment and Natural Resources (DENR) dated March 17, 1986 and April 2, 1986, respectively, sought
the reconsideration of a memorandum order issued by the Bureau of Forest Development which
cancelled its timber license agreement in 1983, as well as the revocation of TLA No. 356 subsequently
issued by the Bureau to private respondents in 1984.

But as gleaned from the record, petitioner did not avail of its remedies under the law, i.e. Section 8 of
Pres. Dec. No. 705 as amended, for attacking the validity of these administrative actions until after 1986.
By the time petitioner sent its letter dated April 2, 1986 to the newly appointed Minister of the MNR
requesting reconsideration of the above Bureau actions, these were already settled matters as far as
petitioner was concerned [See Rueda v. Court of Agrarian Relations, 106 Phil. 300 (1959); Danan v.
Aspillera G.R. No. L-17305, November 28, 1962, 6 SCRA 609; Ocampo v. Arboleda G.R. No. L-48190,
August 31, 1987, 153 SCRA 374].

No particular significance can be attached to petitioner's letter dated September 19, 1983 which
petitioner claimed to have sent to then President Marcos [Annex "6" of Petition, Rollo, pp. 50-53], seeking
the reconsideration of the 1983 order issued by Director Cortes of the Bureau. It must be pointed out that
the averments in this letter are entirely different from the charges of fraud against officials under the
previous regime made by petitioner in its letters to public respondents herein. In the letter to then
President Marcos, petitioner simply contested its inclusion in the list of concessionaires, whose licenses
were cancelled, by defending its record of selective logging and reforestation practices in the subject
concession area. Yet, no other administrative steps appear to have been taken by petitioner until 1986,
despite the fact that the alleged fraudulent scheme became apparent in 1984 as evidenced by the
awarding of the subject timber concession area to other entities in that year.

2. Moreover, petitioner is precluded from availing of the benefits of a writ of certiorari in the present case
because he failed to file his petition within a reasonable period.

The principal issue ostensibly presented for resolution in the instant petition is whether or not public
respondents herein acted with grave abuse of discretion amounting to lack or excess of jurisdiction in
refusing to overturn administrative orders issued by their predecessors in the past regime. Yet, what the
petition ultimately seeks is the nullification of the Bureau orders cancelling TLA No. 87 and granting TLA
No. 356 to private respondent, which were issued way back in 1983 and 1984, respectively.

Once again, the fact that petitioner failed to seasonably take judicial recourse to have the earlier
administrative actions reviewed by the courts through a petition for certiorari is prejudicial to its cause.
For although no specific time frame is fixed for the institution of a special civil action for certiorari under
Rule 65 of the Revised Rules of Court, the same must nevertheless be done within a "reasonable time".
The yardstick to measure the timeliness of a petition for certiorari is the "reasonableness of the length of
time that had expired from the commission of the acts complained of up to the institution of the
proceeding to annul the same" [Toledo v. Pardo, G.R. No. 56761, November 19, 1982, 118 SCRA 566, 571].
And failure to file the petition for certiorari within a reasonable period of time renders the petitioner
susceptible to the adverse legal consequences of laches [Municipality of Carcar v. Court of First Instance
of Cebu, G.R. No. L-31628, December 27, 1982, 119 SCRA 392).

Laches is defined as the failure or neglect for an unreasonable and unexplained length of time to do that
which by exercising due diligence, could or should have been done earlier, or to assert a right within a
reasonable time, warranting a presumption that the party entitled thereto has either abandoned it or
declined to assert it [Tijam v. Sibonghanoy, G.R. No. L-21450, April 15, 1968, 23 SCRA 29; Seno v.
Mangubat, G.R. No. L-44339, December 2, 1987, 156 SCRA 113]. The rule is that unreasonable delay on
the part of a plaintiff in seeking to enforce an alleged right may, depending upon the circumstances, be
destructive of the right itself. Verily, the laws aid those who are vigilant, not those who sleep upon their
rights (Vigilantibus et non dormientibus jura subveniunt) [See Buenaventura v. David, 37 Phil. 435 (1918)].

In the case at bar, petitioner waited for at least three years before it finally filed a petition for certiorari
with the Court attacking the validity of the assailed Bureau actions in 1983 and 1984. Considering that
petitioner, throughout the period of its inaction, was not deprived of the opportunity to seek relief from
the courts which were normally operating at the time, its delay constitutes unreasonable and inexcusable
neglect, tantamount to laches. Accordingly, the writ of certiorari requiring the reversal of these orders will
not lie.

3. Finally, there is a more significant factor which bars the issuance of a writ of certiorari in favor of
petitioner and against public respondents herein. It is precisely this for which prevents the Court from
departing from the general application of the rules enunciated above.

A cursory reading of the assailed orders issued by public respondent Minister Maceda of the MNR which
were ed by the Office of the President, will disclose public policy consideration which effectively forestall
judicial interference in the case at bar,

Public respondents herein, upon whose shoulders rests the task of implementing the policy to develop
and conserve the country's natural resources, have indicated an ongoing department evaluation of all
timber license agreements entered into, and permits or licenses issued, under the previous dispensation.
In fact, both the executive and legislative departments of the incumbent administration are presently
taking stock of its environmental policies with regard to the utilization of timber lands and developing an
agenda for future programs for their conservation and rehabilitation.

The ongoing administrative reassessment is apparently in response to the renewed and growing global
concern over the despoliation of forest lands and the utter disregard of their crucial role in sustaining a
balanced ecological system. The legitimacy of such concern can hardly be disputed, most especially in this
country. The Court takes judicial notice of the profligate waste of the country's forest resources which has
not only resulted in the irreversible loss of flora and fauna peculiar to the region, but has produced even
more disastrous and lasting economic and social effects. The delicate balance of nature having been
upset, a vicious cycle of floods and droughts has been triggered and the supply of food and energy
resources required by the people seriously depleted.

While there is a desire to harness natural resources to amass profit and to meet the country's immediate
financial requirements, the more essential need to ensure future generations of Filipinos of their survival
in a viable environment demands effective and circumspect action from the government to check further
denudation of whatever remains of the forest lands. Nothing less is expected of the government, in view
of the clear constitutional command to maintain a balanced and healthful ecology. Section 16 of Article II
of the 1987 Constitution provides:
 SEC. 16. The State shall protect and promote the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.

Thus, while the administration grapples with the complex and multifarious problems caused by unbridled
exploitation of these resources, the judiciary will stand clear. A long line of cases establish the basic rule
that the courts will not interfere in matters which are addressed to the sound discretion of government
agencies entrusted with the regulation of activities coming under the special technical knowledge and
training of such agencies [See Espinosa v. Makalintal, 79 Phil. 134 (1947); Coloso v. Board of Accountancy,
92 Phil. 938 (1953); Pajo v. Ago, 108 Phil. 905 (1960); Suarez v. Reyes, G.R. No. L-19828, February 28,
1963, 7 SCRA 461; Ganitano v. Secretary of Agriculture and Natural Resources, G. R. No. L-21167, March
31, 1966, 16 SCRA 543; Villegas v. Auditor General, G.R. No. L-21352, November 29, 1966, 18 SCRA 877;
Manuel v. Villena, G.R. No. L-28218, February 27, 1971, 37 SCRA 745; Lacuesta v. Herrera, G.R. No. L-
33646, January 28, 1975, 62 SCRA 115; Lianga Bay Logging Co., Inc. v. Enage, G.R. No. L-30637, July 16,
1987, 152 SCRA 80]. More so where, as in the present case, the interests of a private logging company are
pitted against that of the public at large on the pressing public policy issue of forest conservation. For this
Court recognizes the wide latitude of discretion possessed by the government in determining the
appropriate actions to be taken to preserve and manage natural resources, and the proper parties who
should enjoy the privilege of utilizing these resources [Director of Forestry v. Munoz, G.R. No. L-24796,
June 28, 1968, 23 SCRA 1183; Lim, Sr. v. The Secretary of Agriculture and Natural Resources, G.R. No. L-
26990, August 31, 1970, 34 SCRA 751]. 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].

In fine, the legal precepts highlighted in the foregoing discussion more than suffice to justify the Court's
refusal to interfere in the DENR evaluation of timber licenses and permits issued under the previous
regime, or to pre-empt the adoption of appropriate corrective measures by the department.

Nevertheless, the Court cannot help but express its concern regarding alleged irregularities in the issuance
of timber license agreements to a number of logging concessionaires.

The grant of licenses or permits to exploit the country's timber resources, if done in contravention of the
procedure outlined in the law, or as a result of fraud and undue influence exerted on department officials,
is indicative of an arbitrary and whimsical exercise of the State's power to regulate the use and
exploitation of forest resources. The alleged practice of bestowing "special favors" to preferred
individuals, regardless of merit, would be an abuse of this power. And this Court will not be a party to a
flagrant mockery of the avowed public policy of conservation enshrined in the 1987 Constitution.
Therefore, should the appropriate case be brought showing a clear grave abuse of discretion on the part
of officials in the DENR and related bureaus with respect to the implementation of this public policy, the
Court win not hesitate to step in and wield its authority, when invoked, in the exercise of judicial powers
under the Constitution [Section 1, Article VIII].

However, petitioner having failed to make out a case showing grave abuse of discretion on the part of
public respondents herein, the Court finds no basis to issue a writ of certiorari and to grant any of the
affirmative reliefs sought.

WHEREFORE, the present petition is DISMISSED.

SO ORDERED.

Fernan, C.J., Gutierrez Jr. and Bidin, JJ., concur.

Feliciano, J., is on leave.

Footnotes

* As a result of the creation of the province of Quirino the municipality of Maddela

is now deemed part of the Quirino province.

Henares vs. LTFRB, G.R. No. 158290, Oct 23, 2006

THIRD DIVISION

G.R. No. 158290 October 23, 2006

HILARION M. HENARES, JR., VICTOR C. AGUSTIN, ALFREDO L. HENARES, DANIEL L. HENARES, ENRIQUE
BELO HENARES, and CRISTINA BELO HENARES, petitioners,
vs.
LAND TRANSPORTATION FRANCHISING AND REGULATORY BOARD and DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS, respondents.

RESOLUTION

QUISUMBING, J.:

Petitioners challenge this Court to issue a writ of mandamus commanding respondents Land
Transportation Franchising and Regulatory Board (LTFRB) and the Department of Transportation and
Communications (DOTC) to require public utility vehicles (PUVs) to use compressed natural gas (CNG) as
alternative fuel.

Citing statistics from the Metro Manila Transportation and Traffic Situation Study of 1996,1 the
Environmental Management Bureau (EMB) of the National Capital Region, 2 a study of the Asian
Development Bank,3 the Manila Observatory4 and the Department of Environment and Natural
Resources5 (DENR) on the high growth and low turnover in vehicle ownership in the Philippines, including
diesel-powered vehicles, two-stroke engine powered motorcycles and their concomitant emission of air
pollutants, petitioners attempt to present a compelling case for judicial action against the bane of air
pollution and related environmental hazards.
Petitioners allege that the particulate matters (PM) – complex mixtures of dust, dirt, smoke, and liquid
droplets, varying in sizes and compositions emitted into the air from various engine combustions – have
caused detrimental effects on health, productivity, infrastructure and the overall quality of life.
Petitioners particularly cite the effects of certain fuel emissions from engine combustion when these react
to other pollutants. For instance, petitioners aver, with hydrocarbons, oxide of nitrogen (NOx) creates
smog; with sulfur dioxide, it creates acid rain; and with ammonia, moisture and other compounds, it
reacts to form nitric acid and harmful nitrates. Fuel emissions also cause retardation and leaf bleaching in
plants. According to petitioner, another emission, carbon monoxide (CO), when not completely burned
but emitted into the atmosphere and then inhaled can disrupt the necessary oxygen in blood. With
prolonged exposure, CO affects the nervous system and can be lethal to people with weak hearts.6

Petitioners add that although much of the new power generated in the country will use natural gas while
a number of oil and coal-fired fuel stations are being phased-out, still with the projected doubling of
power generation over the next 10 years, and with the continuing high demand for motor vehicles, the
energy and transport sectors are likely to remain the major sources of harmful emissions. Petitioners refer
us to the study of the Philippine Environment Monitor 20027, stating that in four of the country's major
cities, Metro Manila, Davao, Cebu and Baguio, the exposure to PM10, a finer PM which can penetrate deep
into the lungs causing serious health problems, is estimated at over US$430 million. 8 The study also
reports that the emissions of PMs have caused the following:

· Over 2,000 people die prematurely. This loss is valued at about US$140 million.

· Over 9,000 people suffer from chronic bronchitis, which is valued at about US$120 million.

· Nearly 51 million cases of respiratory symptom days in Metro Manila (averaging twice a year
in Davao and Cebu, and five to six times in Metro Manila and Baguio), costs about US$170
million. This is a 70 percent increase, over a decade, when compared with the findings of a
similar study done in 1992 for Metro Manila, which reported 33 million cases.9

Petitioners likewise cite the University of the Philippines' studies in 1990-91 and 1994 showing that
vehicular emissions in Metro Manila have resulted to the prevalence of chronic obstructive pulmonary
diseases (COPD); that pulmonary tuberculosis is highest among jeepney drivers; and there is a 4.8 to 27.5
percent prevalence of respiratory symptoms among school children and 15.8 to 40.6 percent among child
vendors. The studies also revealed that the children in Metro Manila showed more compromised
pulmonary function than their rural counterparts. Petitioners infer that these are mostly due to the
emissions of PUVs.

To counter the aforementioned detrimental effects of emissions from PUVs, petitioners propose the use
of CNG. According to petitioners, CNG is a natural gas comprised mostly of methane which although
containing small amounts of propane and butane,10 is colorless and odorless and considered the cleanest
fossil fuel because it produces much less pollutants than coal and petroleum; produces up to 90 percent
less CO compared to gasoline and diesel fuel; reduces NOx emissions by 50 percent and cuts hydrocarbon
emissions by half; emits 60 percent less PMs; and releases virtually no sulfur dioxide. Although, according
to petitioners, the only drawback of CNG is that it produces more methane, one of the gases blamed for
global warming.11

Asserting their right to clean air, petitioners contend that the bases for their petition for a writ of
mandamus to order the LTFRB to require PUVs to use CNG as an alternative fuel, lie in Section 16, 12 Article
II of the 1987 Constitution, our ruling in Oposa v. Factoran, Jr.,13 and Section 414 of Republic Act No. 8749
otherwise known as the "Philippine Clean Air Act of 1999."
Meantime, following a subsequent motion, the Court granted petitioners' motion to implead the
Department of Transportation and Communications (DOTC) as additional respondent.

In his Comment for respondents LTFRB and DOTC, the Solicitor General, cites Section 3, Rule 65 of the
Revised Rules of Court and explains that the writ of mandamus is not the correct remedy since the writ
may be issued only to command a tribunal, corporation, board or person to do an act that is required to
be done, when he or it unlawfully neglects the performance of an act which the law specifically enjoins as
a duty resulting from an office, trust or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, there being no other plain, speedy and
adequate remedy in the ordinary course of law.15 Further citing existing jurisprudence, the Solicitor
General explains that in contrast to a discretionary act, a ministerial act, which a mandamus is, is one in
which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to a
mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety or
impropriety of an act done.

The Solicitor General also notes that nothing in Rep. Act No. 8749 that petitioners invoke, prohibits the
use of gasoline and diesel by owners of motor vehicles. Sadly too, according to the Solicitor General, Rep.
Act No. 8749 does not even mention the existence of CNG as alternative fuel and avers that unless this
law is amended to provide CNG as alternative fuel for PUVs, the respondents cannot propose that PUVs
use CNG as alternative fuel.

The Solicitor General also adds that it is the DENR that is tasked to implement Rep. Act No. 8749 and not
the LTFRB nor the DOTC. Moreover, he says, it is the Department of Energy (DOE), under Section 26 16 of
Rep. Act No. 8749, that is required to set the specifications for all types of fuel and fuel-related products
to improve fuel compositions for improved efficiency and reduced emissions. He adds that under Section
2117 of the cited Republic Act, the DOTC is limited to implementing the emission standards for motor
vehicles, and the herein respondents cannot alter, change or modify the emission standards. The Solicitor
General opines that the Court should declare the instant petition for mandamus without merit.

Petitioners, in their Reply, insist that the respondents possess the administrative and regulatory powers to
implement measures in accordance with the policies and principles mandated by Rep. Act No. 8749,
specifically Section 218 and Section 21.19 Petitioners state that under these laws and with all the available
information provided by the DOE on the benefits of CNG, respondents cannot ignore the existence of
CNG, and their failure to recognize CNG and compel its use by PUVs as alternative fuel while air pollution
brought about by the emissions of gasoline and diesel endanger the environment and the people, is
tantamount to neglect in the performance of a duty which the law enjoins.

Lastly, petitioners aver that other than the writ applied for, they have no other plain, speedy and
adequate remedy in the ordinary course of law. Petitioners insist that the writ in fact should be issued
pursuant to the very same Section 3, Rule 65 of the Revised Rules of Court that the Solicitor General
invokes.

In their Memorandum, petitioners phrase the issues before us as follows:

I. WHETHER OR NOT THE PETITIONERS HAVE THE PERSONALITY TO BRING THE PRESENT
ACTION

II. WHETHER OR NOT THE PRESENT ACTION IS SUPPORTED BY LAW

 III. WHETHER OR NOT THE RESPONDENT IS THE AGENCY RESPONSIBLE TO IMPLEMENT THE
SUGGESTED ALTERNATIVE OF REQUIRING PUBLIC UTILITY VEHICLES TO USE COMPRESSED
NATURAL GAS (CNG)

IV. WHETHER OR NOT THE RESPONDENT CAN BE COMPELLED TO REQUIRE PUBLIC UTILITY
VEHICLES TO USE COMPRESSED NATURAL GAS THROUGH A WRIT OF MANDAMUS20

Briefly put, the issues are two-fold. First, Do petitioners have legal personality to bring this petition before
us? Second, Should mandamus issue against respondents to compel PUVs to use CNG as alternative fuel?

According to petitioners, Section 16,21 Article II of the 1987 Constitution is the policy statement that
bestows on the people the right to breathe clean air in a healthy environment. This policy is enunciated
in Oposa.22 The implementation of this policy is articulated in Rep. Act No. 8749. These, according to
petitioners, are the bases for their standing to file the instant petition. They aver that when there is an
omission by the government to safeguard a right, in this case their right to clean air, then, the citizens can
resort to and exhaust all remedies to challenge this omission by the government. This, they say, is
embodied in Section 423 of Rep. Act No. 8749.

Petitioners insist that since it is the LTFRB and the DOTC that are the government agencies clothed with
power to regulate and control motor vehicles, particularly PUVs, and with the same agencies' awareness
and knowledge that the PUVs emit dangerous levels of air pollutants, then, the responsibility to see that
these are curbed falls under respondents' functions and a writ of mandamus should issue against them.

The Solicitor General, for his part, reiterates his position that the respondent government agencies, the
DOTC and the LTFRB, are not in a position to compel the PUVs to use CNG as alternative fuel. The Solicitor
General explains that the function of the DOTC is limited to implementing the emission standards set
forth in Rep. Act No. 8749 and the said law only goes as far as setting the maximum limit for the emission
of vehicles, but it does not recognize CNG as alternative engine fuel. The Solicitor General avers that the
petition should be addressed to Congress for it to come up with a policy that would compel the use of
CNG as alternative fuel.

Patently, this Court is being asked to resolve issues that are not only procedural. Petitioners challenge this
Court to decide if what petitioners propose could be done through a less circuitous, speedy and
unchartered course in an issue that Chief Justice Hilario G. Davide, Jr. in his ponencia in
the Oposa case,24 describes as "inter-generational responsibility" and "inter-generational justice."

Now, as to petitioners' standing. There is no dispute that petitioners have standing to bring their case
before this Court. Even respondents do not question their standing. This petition focuses on one
fundamental legal right of petitioners, their right to clean air. Moreover, as held previously, a party's
standing before this Court is a procedural technicality which may, in the exercise of the Court's discretion,
be set aside in view of the importance of the issue raised. We brush aside this issue of technicality under
the principle of the transcendental importance to the public, especially so if these cases demand that they
be settled promptly.

Undeniably, the right to clean air not only is an issue of paramount importance to petitioners for it
concerns the air they breathe, but it is also impressed with public interest. The consequences of the
counter-productive and retrogressive effects of a neglected environment due to emissions of motor
vehicles immeasurably affect the well-being of petitioners. On these considerations, the legal standing of
the petitioners deserves recognition.
Our next concern is whether the writ of mandamus is the proper remedy, and if the writ could issue
against respondents.

Under Section 3, Rule 65 of the Rules of Court, mandamus lies under any of the following cases: (1)
against any tribunal which unlawfully neglects the performance of an act which the law specifically
enjoins as a duty; (2) in case any corporation, board or person unlawfully neglects the performance of an
act which the law enjoins as a duty resulting from an office, trust, or station; and (3) in case any tribunal,
corporation, board or person unlawfully excludes another from the use and enjoyment of a right or office
to which such other is legally entitled; and there is no other plain, speedy, and adequate remedy in the
ordinary course of law.

In University of San Agustin, Inc. v. Court of Appeals,25 we said,

…It is settled that mandamus is employed to compel the performance, when

refused, of a ministerial duty, this being its main objective. It does not lie to require
anyone to fulfill contractual obligations or to compel a course of conduct, nor to
control or review the exercise of discretion. On the part of the petitioner, it is
essential to the issuance of a writ of mandamus that he should have a clear legal
right to the thing demanded and it must be the imperative duty of the respondent
to perform the act required. It never issues in doubtful cases. While it may not be
necessary that the duty be absolutely expressed, it must however, be clear. The writ
will not issue to compel an official to do anything which is not his duty to do or
which is his duty not to do, or give to the applicant anything to which he is not
entitled by law. The writ neither confers powers nor imposes duties. It is simply a
command to exercise a power already possessed and to perform a duty already
imposed. (Emphasis supplied.)

In this petition the legal right which is sought to be recognized and enforced hinges on a constitutional
and a statutory policy already articulated in operational terms, e.g. in Rep. Act No. 8749, the Philippine
Clean Air Act of 1999. Paragraph (a), Section 21 of the Act specifically provides that when PUVs are
concerned, the responsibility of implementing the policy falls on respondent DOTC. It provides as follows:

SEC 21. Pollution from Motor Vehicles. - a) The DOTC shall implement the emission standards
for motor vehicles set pursuant to and as provided in this Act. To further improve the emission
standards, the Department [DENR] shall review, revise and publish the standards every two (2)
years, or as the need arises. It shall consider the maximum limits for all major pollutants to
ensure substantial improvement in air quality for the health, safety and welfare of the general
public.

Paragraph (b) states:

b) The Department [DENR] in collaboration with the DOTC, DTI and LGUs, shall develop an
action plan for the control and management of air pollution from motor vehicles consistent
with the Integrated Air Quality Framework . . . . (Emphasis supplied.)

There is no dispute that under the Clean Air Act it is the DENR that is tasked to set the emission standards
for fuel use and the task of developing an action plan. As far as motor vehicles are concerned, it devolves
upon the DOTC and the line agency whose mandate is to oversee that motor vehicles prepare an action
plan and implement the emission standards for motor vehicles, namely the LTFRB.
In Oposa26 we said, the right to a balanced and healthful ecology carries with it the correlative duty to
refrain from impairing the environment. We also said, it is clearly the duty of the responsible government
agencies to advance the said right.

Petitioners invoke the provisions of the Constitution and the Clean Air Act in their prayer for issuance of a
writ of mandamus commanding the respondents to require PUVs to use CNG as an alternative fuel.
Although both are general mandates that do not specifically enjoin the use of any kind of fuel, particularly
the use of CNG, there is an executive order implementing a program on the use of CNG by public vehicles.
Executive Order No. 290, entitled Implementing the Natural Gas Vehicle Program for Public Transport
(NGVPPT), took effect on February 24, 2004. The program recognized, among others, natural gas as a
clean burning alternative fuel for vehicle which has the potential to produce substantially lower
pollutants; and the Malampaya Gas-to-Power Project as representing the beginning of the natural gas
industry of the Philippines. Paragraph 1.2, Section 1 of E.O. No. 290 cites as one of its objectives, the use
of CNG as a clean alternative fuel for transport. Furthermore, one of the components of the program is
the development of CNG refueling stations and all related facilities in strategic locations in the country to
serve the needs of CNG-powered PUVs. Section 3 of E.O. No. 290, consistent with E.O. No. 66, series of
2002, designated the DOE as the lead agency (a) in developing the natural gas industry of the country with
the DENR, through the EMB and (b) in formulating emission standards for CNG. Most significantly, par.
4.5, Section 4 tasks the DOTC, working with the DOE, to develop an implementation plan for "a gradual
shift to CNG fuel utilization in PUVs and promote NGVs [natural gas vehicles] in Metro Manila and Luzon
through the issuance of directives/orders providing preferential franchises in present day major routes
and exclusive franchises to NGVs in newly opened routes…" A thorough reading of the executive order
assures us that implementation for a cleaner environment is being addressed. To a certain extent, the
instant petition had been mooted by the issuance of E.O. No. 290.

Regrettably, however, the plain, speedy and adequate remedy herein sought by petitioners, i.e., a writ of
mandamus commanding the respondents to require PUVs to use CNG, is unavailing. Mandamus is
available only to compel the doing of an act specifically enjoined by law as a duty. Here, there is no law
that mandates the respondents LTFRB and the DOTC to order owners of motor vehicles to use CNG. At
most the LTFRB has been tasked by E.O. No. 290 in par. 4.5 (ii), Section 4 "to grant preferential and
exclusive Certificates of Public Convenience (CPC) or franchises to operators of NGVs based on the results
of the DOTC surveys."

Further, mandamus will not generally lie from one branch of government to a coordinate branch, for the
obvious reason that neither is inferior to the other.27 The need for future changes in both legislation and
its implementation cannot be preempted by orders from this Court, especially when what is prayed for is
procedurally infirm. Besides, comity with and courtesy to a coequal branch dictate that we give sufficient
time and leeway for the coequal branches to address by themselves the environmental problems raised in
this petition.

In the same manner that we have associated the fundamental right to a balanced and healthful ecology
with the twin concepts of "inter-generational responsibility" and "inter-generational justice"
in Oposa,28 where we upheld the right of future Filipinos to prevent the destruction of the rainforests, so
do we recognize, in this petition, the right of petitioners and the future generation to clean air.
In Oposa we said that if the right to a balanced and healthful ecology is now explicitly found in the
Constitution even if the right is "assumed to exist from the inception of humankind,… it is because of the
well-founded fear of its framers [of the Constitution] that unless the rights to a balanced and healthful
ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their
continuing importance and imposing upon the state a solemn obligation to preserve the first and protect
and advance the second, the day would not be too far when all else would be lost not only for the present
generation, but also for those to come. . ."29
It is the firm belief of this Court that in this case, it is timely to reaffirm the premium we have placed on
the protection of the environment in the landmark case of Oposa. Yet, as serious as the statistics are on
air pollution, with the present fuels deemed toxic as they are to the environment, as fatal as these
pollutants are to the health of the citizens, and urgently requiring resort to drastic measures to reduce air
pollutants emitted by motor vehicles, we must admit in particular that petitioners are unable to pinpoint
the law that imposes an indubitable legal duty on respondents that will justify a grant of the writ of
mandamus compelling the use of CNG for public utility vehicles. It appears to us that more properly, the
legislature should provide first the specific statutory remedy to the complex environmental problems
bared by herein petitioners before any judicial recourse by mandamus is taken.

WHEREFORE, the petition for the issuance of a writ of mandamus is DISMISSED for lack of merit.

SO ORDERED.

Carpio, Morales, Tinga, and Velasco, Jr., JJ., concur.

Footnotes

10
Id. at 11, citing Alternative Fuels: A Key to Reducing Air Pollution. The Environmental
Education and Information Division Environmental Management Bureau-DENR.

11
Id. at 11-12, citing Bacallan, J.J. Alternative Fuels for Vehicles. Business and Environment.
First Quarter 2003. Volume 8, No. 1, page 12.

12
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.

14
SEC. 4. Recognition of Rights. – Pursuant to the above-declared principles, the following
rights of citizens are hereby sought to be recognized and the State shall seek to guarantee their
enjoyment:

a) The right to breathe clean air;

b) The right to utilize and enjoy all natural resources according to the principle of
sustainable development;

c) The right to participate in the formulation, planning, implementation and

monitoring of environmental policies and programs and in the decision-making
process;

d) The right to participate in the decision-making process concerning development

policies, plans and programs, projects or activities that may have adverse impact on
the environment and public health;
 e) The right to be informed of the nature and extent of the potential hazard of any
activity, undertaking or project and to be served timely notice of any significant rise
in the level of pollution and the accidental or deliberate release into the
atmosphere of harmful or hazardous substances;

f) The right of access to public records which a citizen may need to exercise his or
her rights effectively under this Act;

g) The right to bring action in court or quasi-judicial bodies to enjoin all activities in
violation of environmental laws and regulations, to compel the rehabilitation and
cleanup of affected area, and to seek the imposition of penal sanctions against
violators of environmental laws; and

h) The right to bring action in court for compensation of personal damages resulting
from the adverse environmental and public health impact of a project or activity.

16
SEC. 26. Fuels and Additives.- Pursuant to the Air Quality Framework to be established under
Section 7 of this Act, the Department of Energy (DOE), co-chaired by the Department of
Environment and Natural Resources (DENR), in consultation with the Bureau of Product
Standards (BPS) of the DTI, the DOST, the representatives of the fuel and automotive
industries, academe and the consumers shall set the specifications for all types of fuel and
fuel-related products, to improve fuel composition for increased efficiency and reduced
emissions: . . .

17
SEC. 21. Pollution from Motor Vehicles. - a) The DOTC shall implement the emission
standards for motor vehicles set pursuant to and as provided in this Act. To further improve
the emission standards, the Department [DENR] shall review, revise and publish the standards
every two (2) years, or as the need arises. It shall consider the maximum limits for all major
pollutants to ensure substantial improvement in air quality for the health, safety and welfare
of the general public.

Finally, the State recognizes that a clean and healthy environment is for the good of all and
should therefore be the concern of all.

19
SEC. 21. Pollution from Motor Vehicles. - a) The DOTC shall implement the emission
standards for motor vehicles set pursuant to and as provided in this Act….

SJS v Atienza G.R. No. 156052, Feb. 13, 2008

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 156052 February 13, 2008

SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE T. CABIGAO and BONIFACIO S.
TUMBOKON, petitioners,
vs.
HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City of Manila, respondent.

x----------------------x

CHEVRON PHILIPPINES INC., PETRON CORPORATION and PILIPINAS SHELL PETROLEUM

CORPORATION, movants-intervenors.

x----------------------x

DEPARTMENT OF ENERGY, movant-intervenor.

RESOLUTION

CORONA, J.:

After we promulgated our decision in this case on March 7, 2007, Chevron Philippines Inc. (Chevron),
Petron Corporation (Petron) and Pilipinas Shell Petroleum Corporation (Shell) (collectively, the oil
companies) and the Republic of the Philippines, represented by the Department of Energy (DOE), filed
their respective motions for leave to intervene and for reconsideration of the decision.

Chevron1 is engaged in the business of importing, distributing and marketing of petroleum products in the
Philippines while Shell and Petron are engaged in the business of manufacturing, refining and likewise
importing, distributing and marketing of petroleum products in the Philippines. 2 The DOE is a
governmental agency created under Republic Act (RA) No. 76383 and tasked to prepare, integrate,
coordinate, supervise and control all plans, programs, projects and activities of the government relative to
energy exploration, development, utilization, distribution and conservation.4

The facts are restated briefly as follows:

Petitioners Social Justice Society, Vladimir Alarique T. Cabigao and Bonifacio S. Tumbokon, in an original
petition for mandamus under Rule 65 of the Rules of Court, sought to compel respondent Hon. Jose L.
Atienza, Jr., then mayor of the City of Manila, to enforce Ordinance No. 8027. This ordinance was enacted
by the Sangguniang Panlungsod of Manila on November 20, 2001,5 approved by respondent Mayor on
November 28, 2001,6 and became effective on December 28, 2001 after publication.7 Sections 1 and 3
thereof state:

SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public
safety, and general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining
areas, the land use of [those] portions of land bounded by the Pasig River in the north, PNR
Railroad Track in the east, Beata St. in the south, Palumpong St. in the southwest, and Estero
de Pandacan in the west[,] PNR Railroad in the northwest area, Estero de Pandacan in the
[n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon in the southwest. The area of
Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo
Street, are hereby reclassified from Industrial II to Commercial I.

xxx xxx xxx

 SEC. 3. Owners or operators of industries and other businesses, the operation of which are no
longer permitted under Section 1 hereof, are hereby given a period of six (6) months from the
date of effectivity of this Ordinance within which to cease and desist from the operation of
businesses which are hereby in consequence, disallowed.

Ordinance No. 8027 reclassified the area described therein from industrial to commercial and directed the
owners and operators of businesses disallowed under the reclassification to cease and desist from
operating their businesses within six months from the date of effectivity of the ordinance. Among the
businesses situated in the area are the so-called "Pandacan Terminals" of the oil companies.

On June 26, 2002, the City of Manila and the Department of Energy (DOE) entered into a memorandum of
understanding (MOU)8 with the oil companies. They agreed that "the scaling down of the Pandacan
Terminals [was] the most viable and practicable option." The Sangguniang Panlungsod ratified the MOU
in Resolution No. 97.9 In the same resolution, the Sanggunian declared that the MOU was effective only
for a period of six months starting July 25, 2002.10 Thereafter, on January 30, 2003,
the Sanggunian adopted Resolution No. 1311 extending the validity of Resolution No. 97 to April 30, 2003
and authorizing the mayor of Manila to issue special business permits to the oil companies.12

This was the factual backdrop presented to the Court which became the basis of our March 7, 2007
decision. We ruled that respondent had the ministerial duty under the Local Government Code (LGC) to
"enforce all laws and ordinances relative to the governance of the city," 13 including Ordinance No. 8027.
We also held that we need not resolve the issue of whether the MOU entered into by respondent with
the oil companies and the subsequent resolutions passed by the Sanggunian could amend or repeal
Ordinance No. 8027 since the resolutions which ratified the MOU and made it binding on the City of
Manila expressly gave it full force and effect only until April 30, 2003. We concluded that there was
nothing that legally hindered respondent from enforcing Ordinance No. 8027.

After we rendered our decision on March 7, 2007, the oil companies and DOE sought to intervene and
filed motions for reconsideration in intervention on March 12, 2007 and March 21, 2007 respectively. On
April 11, 2007, we conducted the oral arguments in Baguio City to hear petitioners, respondent and
movants-intervenors oil companies and DOE.

The oil companies called our attention to the fact that on April 25, 2003, Chevron had filed a complaint
against respondent and the City of Manila in the Regional Trial Court (RTC) of Manila, Branch 39, for the
annulment of Ordinance No. 8027 with application for writs of preliminary prohibitory injunction and
preliminary mandatory injunction.14 The case was docketed as civil case no. 03-106377. On the same day,
Shell filed a petition for prohibition and mandamus likewise assailing the validity of Ordinance No. 8027
and with application for writs of preliminary prohibitory injunction and preliminary mandatory
injunction.15 This was docketed as civil case no. 03-106380. Later on, these two cases were consolidated
and the RTC of Manila, Branch 39 issued an order dated May 19, 2003 granting the applications for writs
of preliminary prohibitory injunction and preliminary mandatory injunction:

WHEREFORE, upon the filing of a total bond of TWO MILLION (Php 2,000,000.00) PESOS, let a
Writ of Preliminary Prohibitory Injunction be issued ordering [respondent] and the City of
Manila, their officers, agents, representatives, successors, and any other persons assisting or
acting in their behalf, during the pendency of the case, to REFRAIN from taking steps to
enforce Ordinance No. 8027, and let a Writ of Preliminary Mandatory Injunction be issued
ordering [respondent] to issue [Chevron and Shell] the necessary Business Permits to operate
at the Pandacan Terminal.16

Petron likewise filed its own petition in the RTC of Manila, Branch 42, also attacking the validity of
Ordinance No. 8027 with prayer for the issuance of a writ of preliminary injunction and/or temporary
restraining order (TRO). This was docketed as civil case no. 03-106379. In an order dated August 4, 2004,
the RTC enjoined the parties to maintain the status quo.17

Thereafter, in 2006, the city council of Manila enacted Ordinance No. 8119, also known as the Manila
Comprehensive Land Use Plan and Zoning Ordinance of 2006.18 This was approved by respondent on June
16, 2006.19

Aggrieved anew, Chevron and Shell filed a complaint in the RTC of Manila, Branch 20, asking for the
nullification of Ordinance No. 8119.20 This was docketed as civil case no. 06-115334. Petron filed its own
complaint on the same causes of action in the RTC of Manila, Branch 41.21 This was docketed as civil case
no. 07-116700.22 The court issued a TRO in favor of Petron, enjoining the City of Manila and respondent
from enforcing Ordinance No. 8119.23

Meanwhile, in civil case no. 03-106379, the parties filed a joint motion to withdraw complaint and
counterclaim on February 20, 2007.24 In an order dated April 23, 2007, the joint motion was granted and
all the claims and counterclaims of the parties were withdrawn.25

Given these additional pieces of information, the following were submitted as issues for our resolution:

1. whether movants-intervenors should be allowed to intervene in this case;26

2. whether the following are impediments to the execution of our March 7, 2007 decision:

(a) Ordinance No. 8119, the enactment and existence of which were not previously
brought by the parties to the attention of the Court and

(b) writs of preliminary prohibitory injunction and preliminary mandatory injunction

and status quo order issued by the RTC of Manila, Branches 39 and 42 and

3. whether the implementation of Ordinance No. 8027 will unduly encroach upon the DOE’s
powers and functions involving energy resources.

During the oral arguments, the parties submitted to this Court’s power to rule on the constitutionality and
validity of Ordinance No. 8027 despite the pendency of consolidated cases involving this issue in the
RTC.27 The importance of settling this controversy as fully and as expeditiously as possible was
emphasized, considering its impact on public interest. Thus, we will also dispose of this issue here. The
parties were after all given ample opportunity to present and argue their respective positions. By so
doing, we will do away with the delays concomitant with litigation and completely adjudicate an issue
which will most likely reach us anyway as the final arbiter of all legal disputes.

Before we resolve these issues, a brief review of the history of the Pandacan Terminals is called for to put
our discussion in the proper context.

History Of The Pandacan Oil Terminals

Pandacan (one of the districts of the City of Manila) is situated along the banks of the Pasig river. At the
turn of the twentieth century, Pandacan was unofficially designated as the industrial center of Manila.
The area, then largely uninhabited, was ideal for various emerging industries as the nearby river
facilitated the transportation of goods and products. In the 1920s, it was classified as an industrial
zone.28 Among its early industrial settlers were the oil companies. Shell established its installation there
on January 30, 1914.29 Caltex (now Chevron) followed suit in 1917 when the company began marketing its
products in the country.30 In 1922, it built a warehouse depot which was later converted into a key
distribution terminal.31 The corporate presence in the Philippines of Esso (Petron’s predecessor) became
more keenly felt when it won a concession to build and operate a refinery in Bataan in 1957. 32 It then
went on to operate a state-of-the-art lube oil blending plant in the Pandacan Terminals where it
manufactures lubes and greases.33

On December 8, 1941, the Second World War reached the shores of the Philippine Islands. Although
Manila was declared an open city, the Americans had no interest in welcoming the Japanese. In fact, in
their zealous attempt to fend off the Japanese Imperial Army, the United States Army took control of the
Pandacan Terminals and hastily made plans to destroy the storage facilities to deprive the advancing
Japanese Army of a valuable logistics weapon.34 The U.S. Army burned unused petroleum, causing a
frightening conflagration. Historian Nick Joaquin recounted the events as follows:

After the USAFFE evacuated the City late in December 1941, all army fuel storage dumps were
set on fire. The flames spread, enveloping the City in smoke, setting even the rivers ablaze,
endangering bridges and all riverside buildings. … For one week longer, the "open city"
blazed—a cloud of smoke by day, a pillar of fire by night.35

The fire consequently destroyed the Pandacan Terminals and rendered its network of depots and service
stations inoperative.36

After the war, the oil depots were reconstructed. Pandacan changed as Manila rebuilt itself. The three
major oil companies resumed the operation of their depots.37 But the district was no longer a sparsely
populated industrial zone; it had evolved into a bustling, hodgepodge community. Today, Pandacan has
become a densely populated area inhabited by about 84,000 people, majority of whom are urban poor
who call it home.38 Aside from numerous industrial installations, there are also small businesses,
churches, restaurants, schools, daycare centers and residences situated there. 39 Malacañang Palace, the
official residence of the President of the Philippines and the seat of governmental power, is just two
kilometers away.40 There is a private school near the Petron depot. Along the walls of the Shell facility are
shanties of informal settlers.41 More than 15,000 students are enrolled in elementary and high schools
situated near these facilities.42 A university with a student population of about 25,000 is located directly
across the depot on the banks of the Pasig river.43

The 36-hectare Pandacan Terminals house the oil companies’ distribution terminals and depot
facilities.44 The refineries of Chevron and Shell in Tabangao and Bauan, both in Batangas, respectively, are
connected to the Pandacan Terminals through a 114-kilometer45 underground pipeline system.46 Petron’s
refinery in Limay, Bataan, on the other hand, also services the depot. 47 The terminals store fuel and other
petroleum products and supply 95% of the fuel requirements of Metro Manila, 48 50% of Luzon’s
consumption and 35% nationwide.49 Fuel can also be transported through barges along the Pasig river or
tank trucks via the South Luzon Expressway.

We now discuss the first issue: whether movants-intervenors should be allowed to intervene in this case.

Intervention Of The Oil Companies And The DOE Should Be Allowed In The Interest of Justice

Intervention is a remedy by which a third party, not originally impleaded in the proceedings, becomes a
litigant therein to enable him, her or it to protect or preserve a right or interest which may be affected by
such proceedings.50 The pertinent rules are Sections 1 and 2, Rule 19 of the Rules of Court:
 SEC. 1. Who may intervene. — A person who has a legal interest in the matter in litigation, or
in the success of either of the parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of property in the custody of the court
or of an officer thereof may, with leave of court, be allowed to intervene in the action. The
court shall consider whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties, and whether or not the intervenor’s rights
may be fully protected in a separate proceeding.

SEC. 2. Time to intervene. — The motion to intervene may be filed at any time before rendition
of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the
motion and served on the original parties.

Thus, the following are the requisites for intervention of a non-party:

(1) Legal interest

(a) in the matter in controversy; or

(b) in the success of either of the parties; or

I against both parties; or

(d) person is so situated as to be adversely affected by a distribution or other

disposition of property in the custody of the court or of an officer thereof;

(2) Intervention will not unduly delay or prejudice the adjudication of rights of original parties;

(3) Intervenor’s rights may not be fully protected in a separate proceeding51 and

(g)The motion to intervene may be filed at any time before rendition of judgment by the trial
court.

For both the oil companies and DOE, the last requirement is definitely absent. As a rule, intervention is
allowed "before rendition of judgment" as Section 2, Rule 19 expressly provides. Both filed their separate
motions after our decision was promulgated. In Republic of the Philippines v. Gingoyon,52 a recently
decided case which was also an original action filed in this Court, we declared that the appropriate time to
file the motions-in-intervention was before and not after resolution of the case.53

The Court, however, has recognized exceptions to Section 2, Rule 19 in the interest of substantial justice:

The rule on intervention, like all other rules of procedure, is intended to make the powers of
the Court fully and completely available for justice. It is aimed to facilitate a comprehensive
adjudication of rival claims overriding technicalities on the timeliness of the filing thereof.54

The oil companies assert that they have a legal interest in this case because the implementation of
Ordinance No. 8027 will directly affect their business and property rights.55
 [T]he interest which entitles a person to intervene in a suit between other parties must be in
the matter in litigation and of such direct and immediate character that the intervenor will
either gain or lose by direct legal operation and effect of the judgment. Otherwise, if persons
not parties to the action were allowed to intervene, proceedings would become unnecessarily
complicated, expensive and interminable. And this would be against the policy of the law. The
words "an interest in the subject" means a direct interest in the cause of action as pleaded,
one that would put the intervenor in a legal position to litigate a fact alleged in the complaint
without the establishment of which plaintiff could not recover. 56

We agree that the oil companies have a direct and immediate interest in the implementation of
Ordinance No. 8027. Their claim is that they will need to spend billions of pesos if they are compelled to
relocate their oil depots out of Manila. Considering that they admitted knowing about this case from the
time of its filing on December 4, 2002, they should have intervened long before our March 7, 2007
decision to protect their interests. But they did not.57 Neither did they offer any worthy explanation to
justify their late intervention.

Be that as it may, although their motion for intervention was not filed on time, we will allow it because
they raised and presented novel issues and arguments that were not considered by the Court in its March
7, 2007 decision. After all, the allowance or disallowance of a motion to intervene is addressed to the
sound discretion of the court before which the case is pending.58 Considering the compelling reasons
favoring intervention, we do not think that this will unduly delay or prejudice the adjudication of rights of
the original parties. In fact, it will be expedited since their intervention will enable us to rule on the
constitutionality of Ordinance No. 8027 instead of waiting for the RTC’s decision.

The DOE, on the other hand, alleges that its interest in this case is also direct and immediate as Ordinance
No. 8027 encroaches upon its exclusive and national authority over matters affecting the oil industry. It
seeks to intervene in order to represent the interests of the members of the public who stand to suffer if
the Pandacan Terminals’ operations are discontinued. We will tackle the issue of the alleged
encroachment into DOE’s domain later on. Suffice it to say at this point that, for the purpose of hearing all
sides and considering the transcendental importance of this case, we will also allow DOE’s intervention.

The Injunctive Writs Are Not Impediments To The Enforcement Of Ordinance No. 8027

Under Rule 65, Section 359 of the Rules of Court, a petition for mandamus may be filed when any tribunal,
corporation, board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or station. According to the oil companies,
respondent did not unlawfully fail or neglect to enforce Ordinance No. 8027 because he was lawfully
prevented from doing so by virtue of the injunctive writs and status quo order issued by the RTC of
Manila, Branches 39 and 42.

First, we note that while Chevron and Shell still have in their favor the writs of preliminary injunction and
preliminary mandatory injunction, the status quo order in favor of Petron is no longer in effect since the
court granted the joint motion of the parties to withdraw the complaint and counterclaim.60

Second, the original parties failed to inform the Court about these injunctive writs. Respondent (who was
also impleaded as a party in the RTC cases) defends himself by saying that he informed the court of the
pendency of the civil cases and that a TRO was issued by the RTC in the consolidated cases filed by
Chevron and Shell. It is true that had the oil companies only intervened much earlier, the Court would not
have been left in the dark about these facts. Nevertheless, respondent should have updated the Court, by
way of manifestation, on such a relevant matter.
In his memorandum, respondent mentioned the issuance of a TRO. Under Section 5 of Rule 58 of the
Rules of Court, a TRO issued by the RTC is effective only for a period of 20 days. This is why, in our March
7, 2007 decision, we presumed with certainty that this had already lapsed. 61 Respondent also mentioned
the grant of injunctive writs in his rejoinder which the Court, however, expunged for being a prohibited
pleading. The parties and their counsels were clearly remiss in their duties to this Court.

In resolving controversies, courts can only consider facts and issues pleaded by the parties. 62 Courts, as
well as magistrates presiding over them are not omniscient. They can only act on the facts and issues
presented before them in appropriate pleadings. They may not even substitute their own personal
knowledge for evidence. Nor may they take notice of matters except those expressly provided as subjects
of mandatory judicial notice.

We now proceed to the issue of whether the injunctive writs are legal impediments to the enforcement of
Ordinance No. 8027.

Section 3, Rule 58 of the Rules of Court enumerates the grounds for the issuance of a writ of preliminary
injunction:

SEC. 3. Grounds for issuance of preliminary injunction. ― A preliminary injunction may be

granted when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief
consists in restraining the commission or continuance of the act or acts complained of, or in
requiring the performance of an act or acts, either for a limited period or perpetually;

(b) That the commission, continuance or nonperformance of the act or acts complained of
during the litigation would probably work injustice to the applicant; or

(g) IThat a party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts probably in violation of the rights of the
applicant respecting the subject of the action or proceeding, and tending to render the
judgment ineffectual.

There are two requisites for the issuance of a preliminary injunction: (1) the right to be protected
exists prima facieand (2) the acts sought to be enjoined are violative of that right. It must be proven that
the violation sought to be prevented will cause an irreparable injustice.

The act sought to be restrained here was the enforcement of Ordinance No. 8027. It is a settled rule that
an ordinance enjoys the presumption of validity and, as such, cannot be restrained by
injunction.63 Nevertheless, when the validity of the ordinance is assailed, the courts are not precluded
from issuing an injunctive writ against its enforcement. However, we have declared that the issuance of
said writ is proper only when:

... the petitioner assailing the ordinance has made out a case of unconstitutionality strong
enough to overcome, in the mind of the judge, the presumption of validity, in addition to a
showing of a clear legal right to the remedy sought....64 (Emphasis supplied)

Judge Reynaldo G. Ros, in his order dated May 19, 2003, stated his basis for issuing the injunctive writs:
 The Court, in resolving whether or not a Writ of Preliminary Injunction or Preliminary
Mandatory Injunction should be issued, is guided by the following requirements: (1) a clear
legal right of the complainant; (2) a violation of that right; and (3) a permanent and urgent
necessity for the Writ to prevent serious damage. The Court believes that these requisites are
present in these cases.

There is no doubt that the plaintiff/petitioners have been legitimately operating their business
in the Pandacan Terminal for many years and they have made substantial capital investment
therein. Every year they were issued Business Permits by the City of Manila. Its operations
have not been declared illegal or contrary to law or morals. In fact, because of its vital
importance to the national economy, it was included in the Investment Priorities Plan as
mandated under the "Downstream Oil Industry Deregulation Act of 1988 (R.A. 8479). As a
lawful business, the plaintiff/petitioners have a right, therefore, to continue their operation in
the Pandacan Terminal and the right to protect their investments. This is a clear and
unmistakable right of the plaintiff/petitioners.

The enactment, therefore, of City Ordinance No. 8027 passed by the City Council of Manila
reclassifying the area where the Pandacan Terminal is located from Industrial II to Commercial
I and requiring the plaintiff/petitioners to cease and desist from the operation of their business
has certainly violated the rights of the plaintiff/petitioners to continue their legitimate
business in the Pandacan Terminal and deprived them of their huge investments they put up
therein. Thus, before the Court, therefore, determines whether the Ordinance in question is
valid or not, a Writ of Preliminary Injunction and a Writ of Mandatory Injunction be issued to
prevent serious and irreparable damage to plaintiff/petitioners.65

Nowhere in the judge’s discussion can we see that, in addition to a showing of a clear legal right of
Chevron and Shell to the remedy sought, he was convinced that they had made out a case of
unconstitutionality or invalidity strong enough to overcome the presumption of validity of the
ordinance. Statutes and ordinances are presumed valid unless and until the courts declare the contrary in
clear and unequivocal terms.66 The mere fact that the ordinance is alleged to be unconstitutional or
invalid will not entitle a party to have its enforcement enjoined.67 The presumption is all in favor of
validity. The reason for this is obvious:

The action of the elected representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with the necessities of their particular
municipality and with all the facts and circumstances which surround the subject and
necessitate action. The local legislative body, by enacting the ordinance, has in effect given
notice that the regulations are essential to the well being of the people . . . The Judiciary
should not lightly set aside legislative action when there is not a clear invasion of personal or
property rights under the guise of police regulation.68

X—x—x

...[Courts] accord the presumption of constitutionality to legislative enactments, not only

because the legislature is presumed to abide by the Constitution but also because the
judiciary[,] in the determination of actual cases and controversies[,] must reflect the wisdom
and justice of the people as expressed through their representatives in the executive and
legislative departments of the government.69

The oil companies argue that this presumption must be set aside when the invalidity or unreasonableness
appears on the face of the ordinance itself.70 We see no reason to set aside the presumption. The
ordinance, on its face, does not at all appear to be unconstitutional. It reclassified the subject area from
industrial to commercial. Prima facie, this power is within the power of municipal corporations:

The power of municipal corporations to divide their territory into industrial, commercial and
residential zones is recognized in almost all jurisdictions inasmuch as it is derived from the
police power itself and is exercised for the protection and benefit of their inhabitants.71

X—x—x

There can be no doubt that the City of Manila has the power to divide its territory into
residential and industrial zones, and to prescribe that offensive and unwholesome trades and
occupations are to be established exclusively in the latter zone.

xxx xxx xxx

Likewise, it cannot be denied that the City of Manila has the authority, derived from the police
power, of forbidding the appellant to continue the manufacture of toyo in the zone where it is
now situated, which has been declared residential....72

Courts will not invalidate an ordinance unless it clearly appears that it is unconstitutional. There is no such
showing here. Therefore, the injunctive writs issued in the Manila RTC’s May 19, 2003 order had no leg to
stand on.

We are aware that the issuance of these injunctive writs is not being assailed as tainted with grave abuse
of discretion. However, we are confronted with the question of whether these writs issued by a lower
court are impediments to the enforcement of Ordinance No. 8027 (which is the subject of
the mandamus petition). As already discussed, we rule in the negative.

Ordinance No. 8027 Was Not Superseded By Ordinance No. 8119

The March 7, 2007 decision did not take into consideration the passage of Ordinance No. 8119 entitled
"An Ordinance Adopting the Manila Comprehensive Land Use Plan and Zoning Regulations of 2006 and
Providing for the Administration, Enforcement and Amendment thereto" which was approved by
respondent on June 16, 2006. The simple reason was that the Court was never informed about this
ordinance.

While courts are required to take judicial notice of the laws enacted by Congress, the rule with respect to
local ordinances is different. Ordinances are not included in the enumeration of matters covered by
mandatory judicial notice under Section 1, Rule 129 of the Rules of Court.73

Although, Section 50 of RA 40974 provides that:

SEC. 50 Judicial notice of ordinances. - All courts sitting in the city shall take judicial notice of
the ordinances passed by the [Sangguniang Panglungsod].

This cannot be taken to mean that this Court, since it has its seat in the City of Manila, should have taken
steps to procure a copy of the ordinance on its own, relieving the party of any duty to inform the Court
about it.
Even where there is a statute that requires a court to take judicial notice of municipal ordinances, a court
is not required to take judicial notice of ordinances that are not before it and to which it does not have
access. The party asking the court to take judicial notice is obligated to supply the court with the full text
of the rules the party desires it to have notice of.75 Counsel should take the initiative in requesting that a
trial court take judicial notice of an ordinance even where a statute requires courts to take judicial notice
of local ordinances.76

The intent of a statute requiring a court to take judicial notice of a local ordinance is to remove any
discretion a court might have in determining whether or not to take notice of an ordinance. Such a statute
does not direct the court to act on its own in obtaining evidence for the record and a party must make the
ordinance available to the court for it to take notice.77

In its defense, respondent claimed that he did not inform the Court about the enactment of Ordinance
No. 8119 because he believed that it was different from Ordinance No. 8027 and that the two were not
inconsistent with each other.78

In the same way that we deem the intervenors’ late intervention in this case unjustified, we find the
failure of respondent, who was an original party here, inexcusable.

The Rule On Judicial Admissions Is Not Applicable Against Respondent

The oil companies assert that respondent judicially admitted that Ordinance No. 8027 was repealed by
Ordinance No. 8119 in civil case no. 03-106379 (where Petron assailed the constitutionality of Ordinance
No. 8027) when the parties in their joint motion to withdraw complaint and counterclaim stated that "the
issue ...has been rendered moot and academic by virtue of the passage of [Ordinance No. 8119]." 79 They
contend that such admission worked as an estoppel against the respondent.

Respondent countered that this stipulation simply meant that Petron was recognizing the validity and
legality of Ordinance No. 8027 and that it had conceded the issue of said ordinance’s constitutionality,
opting instead to question the validity of Ordinance No. 8119.80 The oil companies deny this and further
argue that respondent, in his answer in civil case no. 06-115334 (where Chevron and Shell are asking for
the nullification of Ordinance No. 8119), expressly stated that Ordinance No. 8119 replaced Ordinance
No. 8027:81

... Under Ordinance No. 8027, businesses whose uses are not in accord with the reclassification
were given six months to cease [their] operation. Ordinance No. 8119, which in effect,
replaced Ordinance [No.] 8027, merely took note of the time frame provided for in Ordinance
No. 8119.... Ordinance No. 8119 thus provided for an even longer term, that is[,] seven
years;82 (Emphasis supplied)

Rule 129, Section 4 of the Rules of Court provides:

Section 4. Judicial admissions. ― An admission, verbal or written, made by a party in the

course of the proceedings in the same case, does not require proof. The admission may be
contradicted only by showing that it was made through palpable mistake or that no such
admission was made. (Emphasis supplied)

While it is true that a party making a judicial admission cannot subsequently take a position contrary to or
inconsistent with what was pleaded,83 the aforestated rule is not applicable here. Respondent made the
statements regarding the ordinances in civil case nos. 03-106379 and 06-115334 which are not "the
same" as this case before us.84 To constitute a judicial admission, the admission must be made in the
same case in which it is offered.

Hence, respondent is not estopped from claiming that Ordinance No. 8119 did not supersede Ordinance
No. 8027. On the contrary, it is the oil companies which should be considered estopped. They rely on the
argument that Ordinance No. 8119 superseded Ordinance No. 8027 but, at the same time, also impugn its
(8119’s) validity. We frown on the adoption of inconsistent positions and distrust any attempt at clever
positioning under one or the other on the basis of what appears advantageous at the moment. Parties
cannot take vacillating or contrary positions regarding the validity of a statute 85 or ordinance.
Nonetheless, we will look into the merits of the argument of implied repeal.

Ordinance No. 8119 Did Not Impliedly Repeal Ordinance No. 8027

Both the oil companies and DOE argue that Ordinance No. 8119 repealed Ordinance No. 8027. They assert
that although there was no express repeal86 of Ordinance No. 8027, Ordinance No. 8119 impliedly
repealed it.

According to the oil companies, Ordinance No. 8119 reclassified the area covering the Pandacan
Terminals to "High Density Residential/Mixed Use Zone (R-3/MXD)"87 whereas Ordinance No. 8027
reclassified the same area from Industrial II to Commercial I:

SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety, and
general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the land use of
[those] portions of land bounded by the Pasig River in the north, PNR Railroad Track in the east, Beata St.
in the south, Palumpong St. in the southwest, and Estero de Pancacan in the west[,] PNR Railroad in the
northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon
in the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28
St., and F. Manalo Street, are hereby reclassified from Industrial II to Commercial I. (Emphasis supplied)

Moreover, Ordinance No. 8119 provides for a phase-out of seven years:

SEC. 72. Existing Non-Conforming Uses and Buildings. - The lawful use of any building, structure
or land at the time of the adoption of this Ordinance may be continued, although such use
does not conform with the provision of the Ordinance, provided:

xxx xxx xxx

(g) In case the non-conforming use is an industrial use:

xxx xxx xxx

d. The land use classified as non-conforming shall program the phase-out and
relocation of the non-conforming use within seven (7) years from the date of
effectivity of this Ordinance. (Emphasis supplied)

This is opposed to Ordinance No. 8027 which compels affected entities to vacate the area within six
months from the effectivity of the ordinance:
 SEC. 3. Owners or operators of industries and other businesses, the operation of which are no
longer permitted under Section 1 hereof, are hereby given a period of six (6) months from the
date of effectivity of this Ordinance within which to cease and desist from the operation of
businesses which are hereby in consequence, disallowed.

Ordinance No. 8119 also designated the Pandacan oil depot area as a "Planned Unit
Development/Overlay Zone (O-PUD)":

SEC. 23. Use Regulations in Planned Unit Development/Overlay Zone (O-PUD). – O-PUD Zones
are identified specific sites in the City of Manila wherein the project site is comprehensively
planned as an entity via unitary site plan which permits flexibility in planning/ design, building
siting, complementarily of building types and land uses, usable open spaces and the
preservation of significant natural land features, pursuant to regulations specified for each
particular PUD. Enumerated below are identified PUD:

xxx xxx xxx

6. Pandacan Oil Depot Area

xxx xxx xxx

Enumerated below are the allowable uses:

1. all uses allowed in all zones where it is located

2. the [Land Use Intensity Control (LUIC)] under which zones are located shall, in all instances
be complied with

3. the validity of the prescribed LUIC shall only be [superseded] by the development controls
and regulations specified for each PUD as provided for each PUD as provided for by the
masterplan of respective PUDs.88(Emphasis supplied)

Respondent claims that in passing Ordinance No. 8119, the Sanggunian did not intend to repeal
Ordinance No. 8027 but meant instead to carry over 8027’s provisions to 8119 for the purpose of making
Ordinance No. 8027 applicable to the oil companies even after the passage of Ordinance No. 8119.89 He
quotes an excerpt from the minutes of the July 27, 2004 session of the Sanggunian during the first reading
of Ordinance No. 8119:

Member GARCIA: Your Honor, iyong patungkol po roon sa oil depot doon sa amin sa Sixth
District sa Pandacan, wala pong nakalagay eith sa ordinansa rito na taliwas o kakaiba roon sa
ordinansang ipinasa noong nakaraang Konseho, iyong Ordinance No. 8027. So kung ano po ang
nandirito sa ordinansa na ipinasa ninyo last time, iyon lang po ang ni-lift eithe at inilagay eith.
At eith eith ordinansang …iyong naipasa ng huling Konseho, niri-classify [ninyo] from Industrial
II to Commercial C-1 ang area ng Pandacan kung nasaan ang oil depot. So ini-lift lang po [eithe]
iyong definition, density, at saka po yon pong … ng… noong ordinansa ninyo na siya eith
naming inilagay eith, iniba lang po naming iyong title. So wala po kaming binago na taliwas o
nailagay na taliwas doon sa ordinansang ipinasa ninyo, ni-lift lang po [eithe] from Ordinance
No. 8027."90 (Emphasis supplied)

We agree with respondent.

Repeal by implication proceeds on the premise that where a statute of later date clearly reveals the
intention of the legislature to abrogate a prior act on the subject, that intention must be given effect. 91

There are two kinds of implied repeal. The first is: where the provisions in the two acts on the same
subject matter are irreconcilably contradictory, the latter act, to the extent of the conflict, constitutes an
implied repeal of the earlier one.92 The second is: if the later act covers the whole subject of the earlier
one and is clearly intended as a substitute, it will operate to repeal the earlier law.93 The oil companies
argue that the situation here falls under the first category.

Implied repeals are not favored and will not be so declared unless the intent of the legislators is
manifest.94 As statutes and ordinances are presumed to be passed only after careful deliberation and with
knowledge of all existing ones on the subject, it follows that, in passing a law, the legislature did not
intend to interfere with or abrogate a former law relating to the same subject matter. 95 If the intent to
repeal is not clear, the later act should be construed as a continuation of, and not a substitute for, the
earlier act.96

These standards are deeply enshrined in our jurisprudence. We disagree that, in enacting Ordinance No.
8119, there was any indication of the legislative purpose to repeal Ordinance No. 8027. 97 The excerpt
quoted above is proof that there was never such an intent. While it is true that both ordinances relate to
the same subject matter, i.e.classification of the land use of the area where Pandacan oil depot is located,
if there is no intent to repeal the earlier enactment, every effort at reasonable construction must be made
to reconcile the ordinances so that both can be given effect:

The fact that a later enactment may relate to the same subject matter as that of an earlier
statute is not of itself sufficient to cause an implied repeal of the prior act, since the new
statute may merely be cumulative or a continuation of the old one. What is necessary is a
manifest indication of legislative purpose to repeal.98

For the first kind of implied repeal, there must be an irreconcilable conflict between the two ordinances.
There is no conflict between the two ordinances. Ordinance No. 8027 reclassified the Pandacan area from
Industrial II to Commercial I. Ordinance No. 8119, in Section 23, designated it as a "Planned Unit
Development/Overlay Zone (O-PUD)." In its Annex C which defined the zone boundaries,99 the Pandacan
area was shown to be within the "High Density Residential/Mixed Use Zone (R-3/MXD)." These zone
classifications in Ordinance No. 8119 are not inconsistent with the reclassification of the Pandacan area
from Industrial to Commercial in Ordinance No. 8027. The "O-PUD" classification merely made Pandacan a
"project site ... comprehensively planned as an entity via unitary site plan which permits flexibility in
planning/design, building siting, complementarity of building types and land uses, usable open spaces and
the preservation of significant natural land features...."100 Its classification as "R-3/MXD" means that it
should "be used primarily for high-rise housing/dwelling purposes and limited
complementary/supplementary trade, services and business activities."101 There is no conflict since both
ordinances actually have a common objective, i.e., to shift the zoning classification from industrial to
commercial (Ordinance No. 8027) or mixed residential/commercial (Ordinance No. 8119).

Moreover, it is a well-settled rule in statutory construction that a subsequent general law does not repeal
a prior special law on the same subject unless it clearly appears that the legislature has intended by the
latter general act to modify or repeal the earlier special law. Generalia specialibus non derogant (a general
law does not nullify a specific or special law).102 This is so even if the provisions of the general law are
sufficiently comprehensive to include what was set forth in the special act. 103 The special act and the
general law must stand together, one as the law of the particular subject and the other as the law of
general application.104 The special law must be taken as intended to constitute an exception to, or a
qualification of, the general act or provision.105
 The reason for this is that the legislature, in passing a law of special character, considers and
makes special provisions for the particular circumstances dealt with by the special law. This
being so, the legislature, by adopting a general law containing provisions repugnant to those of
the special law and without making any mention of its intention to amend or modify such
special law, cannot be deemed to have intended an amendment, repeal or modification of the
latter.106

Ordinance No. 8027 is a special law107 since it deals specifically with a certain area described therein (the
Pandacan oil depot area) whereas Ordinance No. 8119 can be considered a general law 108 as it covers the
entire city of Manila.

The oil companies assert that even if Ordinance No. 8027 is a special law, the existence of an all-
encompassing repealing clause in Ordinance No. 8119 evinces an intent on the part of the Sanggunian to
repeal the earlier ordinance:

Sec. 84. Repealing Clause. – All ordinances, rules, regulations in conflict with the provisions of
this Ordinance are hereby repealed; PROVIDED, That the rights that are vested upon the
effectivity of this Ordinance shall not be impaired.

They cited Hospicio de San Jose de Barili, Cebu City v. Department of Agrarian Reform:109

The presence of such general repealing clause in a later statute clearly indicates the legislative
intent to repeal all prior inconsistent laws on the subject matter, whether the prior law is a
general law or a special law... Without such a clause, a later general law will ordinarily not
repeal a prior special law on the same subject. But with such clause contained in the
subsequent general law, the prior special law will be deemed repealed, as the clause is a clear
legislative intent to bring about that result.110

This ruling in not applicable here. The repealing clause of Ordinance No. 8119 cannot be taken to indicate
the legislative intent to repeal all prior inconsistent laws on the subject matter, including Ordinance No.
8027, a special enactment, since the aforequoted minutes (an official record of the discussions in
the Sanggunian) actually indicated the clear intent to preserve the provisions of Ordinance No. 8027.

To summarize, the conflict between the two ordinances is more apparent than real. The two ordinances
can be reconciled. Ordinance No. 8027 is applicable to the area particularly described therein whereas
Ordinance No. 8119 is applicable to the entire City of Manila.

Mandamus Lies To Compel Respondent Mayor To Enforce Ordinance No. 8027

The oil companies insist that mandamus does not lie against respondent in consideration of the
separation of powers of the executive and judiciary.111 This argument is misplaced. Indeed,

[the] Courts will not interfere by mandamus proceedings with the legislative [or executive
departments] of the government in the legitimate exercise of its powers, except to enforce
mere ministerial acts required by law to be performed by some officer thereof.112 (Emphasis
Supplied)

since this is the function of a writ of mandamus, which is the power to compel "the performance of an act
which the law specifically enjoins as a duty resulting from office, trust or station."113
They also argue that petitioners had a plain, speedy and adequate remedy to compel respondent to
enforce Ordinance No. 8027 which was to seek relief from the President of the Philippines through the
Secretary of the Department of Interior and Local Government (DILG) by virtue of the President’s power
of supervision over local government units. Again, we disagree. A party need not go first to the DILG in
order to compel the enforcement of an ordinance. This suggested process would be unreasonably long,
tedious and consequently injurious to the interests of the local government unit (LGU) and its
constituents whose welfare is sought to be protected. Besides, petitioners’ resort to an original action
for mandamus before this Court is undeniably allowed by the Constitution.114

Ordinance No. 8027 Is Constitutional And Valid

Having ruled that there is no impediment to the enforcement of Ordinance No. 8027, we now proceed to
make a definitive ruling on its constitutionality and validity.

The tests of a valid ordinance are well established. For an ordinance to be valid, it must not only be within
the corporate powers of the LGU to enact and be passed according to the procedure prescribed by law, it
must also conform to the following substantive requirements: (1) must not contravene the Constitution or
any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not
prohibit but may regulate trade; (5) must be general and consistent with public policy and (6) must not be
unreasonable.115

The City of Manila Has The Power To Enact Ordinance No. 8027

Ordinance No. 8027 was passed by the Sangguniang Panlungsod of Manila in the exercise of its police
power. Police power is the plenary power vested in the legislature to make statutes and ordinances to
promote the health, morals, peace, education, good order or safety and general welfare of the
people.116 This power flows from the recognition that salus populi est suprema lex (the welfare of the
people is the supreme law).117 While police power rests primarily with the national legislature, such power
may be delegated.118 Section 16 of the LGC, known as the general welfare clause, encapsulates the
delegated police power to local governments:119

Section 16. General Welfare. ― Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among their residents, maintain peace
and order, and preserve the comfort and convenience of their inhabitants.

LGUs like the City of Manila exercise police power through their respective legislative bodies, in this case,
the Sangguniang Panlungsod or the city council. Specifically, the Sanggunian can enact ordinances for the
general welfare of the city:

Section. 458. – Powers, Duties, Functions and Compensation. – (a) The sangguniang
panglungsod, as the legislative branch of the city, shall enact ordinances, approve resolutions
and appropriate funds for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code xxxx
This police power was also provided for in RA 409 or the Revised Charter of the City of Manila:

Section 18. Legislative powers. — The [City Council] shall have the following legislative powers:

xxx xxx xxx

(g) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the
furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort,
convenience, and general welfare of the city and its inhabitants, and such others as may be
necessary to carry into effect and discharge the powers and duties conferred by this chapter
xxxx120

Specifically, the Sanggunian has the power to "reclassify land within the jurisdiction of the city."121

The Enactment Of Ordinance No. 8027 Is A Legitimate Exercise Of Police Power

As with the State, local governments may be considered as having properly exercised their police power
only if the following requisites are met: (1) the interests of the public generally, as distinguished from
those of a particular class, require its exercise and (2) the means employed are reasonably necessary for
the accomplishment of the purpose and not unduly oppressive upon individuals. In short, there must be a
concurrence of a lawful subject and a lawful method.122

Ordinance No. 8027 was enacted "for the purpose of promoting sound urban planning, ensuring health,
public safety and general welfare"123 of the residents of Manila. The Sanggunian was impelled to take
measures to protect the residents of Manila from catastrophic devastation in case of a terrorist attack on
the Pandacan Terminals. Towards this objective, the Sanggunian reclassified the area defined in the
ordinance from industrial to commercial.

The following facts were found by the Committee on Housing, Resettlement and Urban Development of
the City of Manila which recommended the approval of the ordinance:

(1) the depot facilities contained 313.5 million liters of highly flammable and highly volatile products
which include petroleum gas, liquefied petroleum gas, aviation fuel, diesel, gasoline, kerosene and fuel oil
among others;

(2) the depot is open to attack through land, water or air;

(3) it is situated in a densely populated place and near Malacañang Palace and

(4) in case of an explosion or conflagration in the depot, the fire could spread to the neighboring
communities.124

The ordinance was intended to safeguard the rights to life, security and safety of all the inhabitants of
Manila and not just of a particular class.125 The depot is perceived, rightly or wrongly, as a representation
of western interests which means that it is a terrorist target. As long as it there is such a target in their
midst, the residents of Manila are not safe. It therefore became necessary to remove these terminals to
dissipate the threat. According to respondent:
 Such a public need became apparent after the 9/11 incident which showed that what was
perceived to be impossible to happen, to the most powerful country in the world at that, is
actually possible. The destruction of property and the loss of thousands of lives on that fateful
day became the impetus for a public need. In the aftermath of the 9/11 tragedy, the threats of
terrorism continued [such] that it became imperative for governments to take measures to
combat their effects.126

Wide discretion is vested on the legislative authority to determine not only what the interests of the
public require but also what measures are necessary for the protection of such interests. 127 Clearly,
the Sanggunian was in the best position to determine the needs of its constituents.

In the exercise of police power, property rights of individuals may be subjected to restraints and burdens
in order to fulfill the objectives of the government.128 Otherwise stated, the government may enact
legislation that may interfere with personal liberty, property, lawful businesses and occupations to
promote the general welfare.129 However, the interference must be reasonable and not arbitrary. And to
forestall arbitrariness, the methods or means used to protect public health, morals, safety or welfare
must have a reasonable relation to the end in view.130

The means adopted by the Sanggunian was the enactment of a zoning ordinance which reclassified the
area where the depot is situated from industrial to commercial. A zoning ordinance is defined as a local
city or municipal legislation which logically arranges, prescribes, defines and apportions a given political
subdivision into specific land uses as present and future projection of needs. 131 As a result of the zoning,
the continued operation of the businesses of the oil companies in their present location will no longer be
permitted. The power to establish zones for industrial, commercial and residential uses is derived from
the police power itself and is exercised for the protection and benefit of the residents of a
locality.132 Consequently, the enactment of Ordinance No. 8027 is within the power of the Sangguniang
Panlungsod of the City of Manila and any resulting burden on those affected cannot be said to be unjust:

There can be no doubt that the City of Manila has the power to divide its territory into
residential and industrial zones, and to prescribe that offensive and unwholesome trades and
occupations are to be established exclusively in the latter zone.

"The benefits to be derived by cities adopting such regulations (zoning) may be summarized as
follows: They attract a desirable and assure a permanent citizenship; they foster pride in and
attachment to the city; they promote happiness and contentment; they stabilize the use and
value of property and promote the peace, [tranquility], and good order of the city. We do not
hesitate to say that the attainment of these objects affords a legitimate field for the exercise of
the police power. He who owns property in such a district is not deprived of its use by such
regulations. He may use it for the purposes to which the section in which it is located is
dedicated. That he shall not be permitted to use it to the desecration of the community
constitutes no unreasonable or permanent hardship and results in no unjust burden."

xxx xxx xxx

"The 14th Amendment protects the citizen in his right to engage in any lawful business, but it
does not prevent legislation intended to regulate useful occupations which, because of their
nature or location, may prove injurious or offensive to the public."133

We entertain no doubt that Ordinance No. 8027 is a valid police power measure because there is a
concurrence of lawful subject and lawful method.
Ordinance No. 8027 Is Not Unfair, Oppressive Or Confiscatory Which Amounts To Taking Without
Compensation

According to the oil companies, Ordinance No. 8027 is unfair and oppressive as it does not only regulate
but also absolutely prohibits them from conducting operations in the City of Manila. Respondent counters
that this is not accurate since the ordinance merely prohibits the oil companies from operating their
businesses in the Pandacan area.

Indeed, the ordinance expressly delineated in its title and in Section 1 what it pertained to. Therefore, the
oil companies’ contention is not supported by the text of the ordinance. Respondent succinctly stated
that:

The oil companies are not forbidden to do business in the City of Manila. They may still very
well do so, except that their oil storage facilities are no longer allowed in the Pandacan area.
Certainly, there are other places in the City of Manila where they can conduct this specific kind
of business. Ordinance No. 8027 did not render the oil companies illegal. The assailed
ordinance affects the oil companies business only in so far as the Pandacan area is
concerned.134

The oil companies are not prohibited from doing business in other appropriate zones in Manila. The City
of Manila merely exercised its power to regulate the businesses and industries in the zones it established:

As to the contention that the power to regulate does not include the power to prohibit, it will
be seen that the ordinance copied above does not prohibit the installation of motor engines
within the municipality of Cabanatuan but only within the zone therein fixed. If the municipal
council of Cabanatuan is authorized to establish said zone, it is also authorized to provide what
kind of engines may be installed therein. In banning the installation in said zone of all engines
not excepted in the ordinance, the municipal council of Cabanatuan did no more than regulate
their installation by means of zonification.135

The oil companies aver that the ordinance is unfair and oppressive because they have invested billions of
pesos in the depot.136 Its forced closure will result in huge losses in income and tremendous costs in
constructing new facilities.

Their contention has no merit. In the exercise of police power, there is a limitation on or restriction of
property interests to promote public welfare which involves no compensable taking. Compensation is
necessary only when the state’s power of eminent domain is exercised. In eminent domain, property is
appropriated and applied to some public purpose. Property condemned under the exercise of police
power, on the other hand, is noxious or intended for a noxious or forbidden purpose and, consequently, is
not compensable.137 The restriction imposed to protect lives, public health and safety from danger is not a
taking. It is merely the prohibition or abatement of a noxious use which interferes with paramount rights
of the public.

Property has not only an individual function, insofar as it has to provide for the needs of the owner, but
also a social function insofar as it has to provide for the needs of the other members of society. 138 The
principle is this:

Police power proceeds from the principle that every holder of property, however absolute and
unqualified may be his title, holds it under the implied liability that his use of it shall not be
injurious to the equal enjoyment of others having an equal right to the enjoyment of their
property, nor injurious to the right of the community. Rights of property, like all other social
 and conventional rights, are subject to reasonable limitations in their enjoyment as shall
prevent them from being injurious, and to such reasonable restraints and regulations
established by law as the legislature, under the governing and controlling power vested in
them by the constitution, may think necessary and expedient.139

In the regulation of the use of the property, nobody else acquires the use or interest therein, hence there
is no compensable taking.140 In this case, the properties of the oil companies and other businesses
situated in the affected area remain theirs. Only their use is restricted although they can be applied to
other profitable uses permitted in the commercial zone.

Ordinance No. 8027 Is Not Partial And Discriminatory

The oil companies take the position that the ordinance has discriminated against and singled out the
Pandacan Terminals despite the fact that the Pandacan area is congested with buildings and residences
that do not comply with the National Building Code, Fire Code and Health and Sanitation Code.141

This issue should not detain us for long. An ordinance based on reasonable classification does not violate
the constitutional guaranty of the equal protection of the law. 142 The requirements for a valid and
reasonable classification are: (1) it must rest on substantial distinctions; (2) it must be germane to the
purpose of the law; (3) it must not be limited to existing conditions only and (4) it must apply equally to all
members of the same class.143

The law may treat and regulate one class differently from another class provided there are real and
substantial differences to distinguish one class from another. 144 Here, there is a reasonable classification.
We reiterate that what the ordinance seeks to prevent is a catastrophic devastation that will result from a
terrorist attack. Unlike the depot, the surrounding community is not a high-value terrorist target. Any
damage caused by fire or explosion occurring in those areas would be nothing compared to the damage
caused by a fire or explosion in the depot itself. Accordingly, there is a substantial distinction. The
enactment of the ordinance which provides for the cessation of the operations of these terminals
removes the threat they pose. Therefore it is germane to the purpose of the ordinance. The classification
is not limited to the conditions existing when the ordinance was enacted but to future conditions as well.
Finally, the ordinance is applicable to all businesses and industries in the area it delineated.

Ordinance No. 8027 is Not Inconsistent With RA 7638 And RA 8479

The oil companies and the DOE assert that Ordinance No. 8027 is unconstitutional because it contravenes
RA 7638 (DOE Act of 1992)145 and RA 8479 (Downstream Oil Industry Deregulation Law of 1998).146 They
argue that through RA 7638, the national legislature declared it a policy of the state "to ensure a
continuous, adequate, and economic supply of energy"147 and created the DOE to implement this policy.
Thus, under Section 5 I, DOE is empowered to "establish and administer programs for the exploration,
transportation, marketing, distribution, utilization, conservation, stockpiling, and storage of energy
resources." Considering that the petroleum products contained in the Pandacan Terminals are major and
critical energy resources, they conclude that their administration, storage, distribution and transport are
of national interest and fall under DOE’s primary and exclusive jurisdiction.148

They further assert that the terminals are necessary for the delivery of immediate and adequate supply of
oil to its recipients in the most economical way.149 Local legislation such as Ordinance No. 8027 (which
effectively calls for the removal of these terminals) allegedly frustrates the state policy of ensuring a
continuous, adequate, and economic supply of energy expressed in RA 7638, a national law.150 Likewise,
the ordinance thwarts the determination of the DOE that the terminals’ operations should be merely
scaled down and not discontinued.151They insist that this should not be allowed considering that it has a
nationwide economic impact and affects public interest transcending the territorial jurisdiction of the City
of Manila.152

According to them, the DOE’s supervision over the oil industry under RA 7638 was subsequently
underscored by RA 8479, particularly in Section 7 thereof:

SECTION 7. Promotion of Fair Trade Practices. ― The Department of Trade and Industry (DTI)
and DOE shall take all measures to promote fair trade and prevent cartelization, monopolies,
combinations in restraint of trade, and any unfair competition in the Industry as defined in
Article 186 of the Revised Penal Code, and Articles 168 and 169 of Republic Act No. 8293,
otherwise known as the "Intellectual Property Rights Law". The DOE shall continue
to encourage certain practices in the Industry which serve the public interest and
are intended to achieve efficiency and cost reduction, ensure continuous supply of
petroleum products, and enhance environmental protection. These practices may include
borrow-and-loan agreements, rationalized depot and manufacturing operations, hospitality
agreements, joint tanker and pipeline utilization, and joint actions on oil spill control and fire
prevention. (Emphasis supplied)

Respondent counters that DOE’s regulatory power does not preclude LGUs from exercising their police
power.153

Indeed, ordinances should not contravene existing statutes enacted by Congress. The rationale for this
was clearly explained in Magtajas vs. Pryce Properties Corp., Inc.:154

The rationale of the requirement that the ordinances should not contravene a statute is
obvious. Municipal governments are only agents of the national government. Local councils
exercise only delegated legislative powers conferred on them by Congress as the national
lawmaking body. The delegate cannot be superior to the principal or exercise powers higher
than those of the latter. It is a heresy to suggest that the local government units can undo the
acts of Congress, from which they have derived their power in the first place, and negate by
mere ordinance the mandate of the statute.

"Municipal corporations owe their origin to, and derive their powers and rights wholly from
the legislature. It breathes into them the breath of life, without which they cannot exist. As it
creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is some
constitutional limitation on the right, the legislature might, by a single act, and if we can
suppose it capable of so great a folly and so great a wrong, sweep from existence all of the
municipal corporations in the State, and the corporation could not prevent it. We know of no
limitation on the right so far as to the corporation themselves are concerned. They are, so to
phrase it, the mere tenants at will of the legislature."

This basic relationship between the national legislature and the local government units has not
been enfeebled by the new provisions in the Constitution strengthening the policy of local
autonomy. Without meaning to detract from that policy, we here confirm that Congress
retains control of the local government units although in significantly reduced degree now
than under our previous Constitutions. The power to create still includes the power to destroy.
The power to grant still includes the power to withhold or recall. True, there are certain
notable innovations in the Constitution, like the direct conferment on the local government
units of the power to tax, which cannot now be withdrawn by mere statute. By and large,
however, the national legislature is still the principal of the local government units, which
cannot defy its will or modify or violate it.155
The question now is whether Ordinance No. 8027 contravenes RA 7638 and RA 8479. It does not.

Under Section 5 I of RA 7638, DOE was given the power to "establish and administer programs for the
exploration, transportation, marketing, distribution, utilization, conservation, stockpiling, and storage of
energy resources." On the other hand, under Section 7 of RA 8749, the DOE "shall continue to encourage
certain practices in the Industry which serve the public interest and are intended to achieve efficiency and
cost reduction, ensure continuous supply of petroleum products." Nothing in these statutes prohibits the
City of Manila from enacting ordinances in the exercise of its police power.

The principle of local autonomy is enshrined in and zealously protected under the Constitution. In Article
II, Section 25 thereof, the people expressly adopted the following policy:

Section 25. The State shall ensure the autonomy of local governments.

An entire article (Article X) of the Constitution has been devoted to guaranteeing and promoting the
autonomy of LGUs. The LGC was specially promulgated by Congress to ensure the autonomy of local
governments as mandated by the Constitution:

Sec. 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. (Emphasis supplied)

We do not see how the laws relied upon by the oil companies and DOE stripped the City of Manila of its
power to enact ordinances in the exercise of its police power and to reclassify the land uses within its
jurisdiction. To guide us, we shall make a brief survey of our decisions where the police power measure of
the LGU clashed with national laws.

In Tan v. Pereña,156 the Court ruled that Ordinance No. 7 enacted by the municipality of Daanbantayan,
Cebu allowing the operation of three cockpits was invalid for violating PD 449 (or the Cockfighting Law of
1974) which permitted only one cockpit per municipality.

In Batangas CATV, Inc. v. Court of Appeals,157 the Sangguniang Panlungsod of Batangas City enacted
Resolution No. 210 granting Batangas CATV, Inc. a permit to operate a cable television (CATV) system in
Batangas City. The Court held that the LGU did not have the authority to grant franchises to operate a
CATV system because it was the National Telecommunications Commission (NTC) that had the power
under EO Nos. 205 and 436 to regulate CATV operations. EO 205 mandated the NTC to grant certificates
of authority to CATV operators while EO 436 vested on the NTC the power to regulate and supervise the
CATV industry.

In Lina, Jr. v. Paño,158 we held that Kapasiyahan Bilang 508, Taon 1995 of the Sangguniang
Panlalawigan of Laguna could not be used as justification to prohibit lotto in the municipality of San
Pedro, Laguna because lotto was duly authorized by RA 1169, as amended by BP 42. This law granted a
franchise to the Philippine Charity Sweepstakes Office and allowed it to operate lotteries.
In Magtajas v. Pryce Properties Corp., Inc.,159 the Sangguniang Panlungsod of Cagayan de Oro City passed
Ordinance Nos. 3353 and 3375-93 prohibiting the operation of casinos in the city. We ruled that these
ordinances were void for contravening PD 1869 or the charter of the Philippine Amusements and Gaming
Corporation which had the power to operate casinos.

The common dominator of all of these cases is that the national laws were clearly and expressly in conflict
with the ordinances/resolutions of the LGUs. The inconsistencies were so patent that there was no room
for doubt. This is not the case here.

The laws cited merely gave DOE general powers to "establish and administer programs for the
exploration, transportation, marketing, distribution, utilization, conservation, stockpiling, and storage of
energy resources" and "to encourage certain practices in the [oil] industry which serve the public interest
and are intended to achieve efficiency and cost reduction, ensure continuous supply of petroleum
products." These powers can be exercised without emasculating the LGUs of the powers granted them.
When these ambiguous powers are pitted against the unequivocal power of the LGU to enact police
power and zoning ordinances for the general welfare of its constituents, it is not difficult to rule in favor of
the latter. Considering that the powers of the DOE regarding the Pandacan Terminals are not categorical,
the doubt must be resolved in favor of the City of Manila:

SECTION 5. Rules of Interpretation. ― In the interpretation of the provisions of this Code, the
following rules shall apply:

(a) Any provision on a power of a local government unit shall be liberally interpreted in its
favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of
powers and of the lower local government unit. Any fair and reasonable doubt as to the
existence of the power shall be interpreted in favor of the local government unit concerned;

xxx xxx xxx

(g) IThe general welfare provisions in this Code shall be liberally interpreted to give more
powers to local government units in accelerating economic development and upgrading the
quality of life for the people in the community xxxx

The least we can do to ensure genuine and meaningful local autonomy is not to force an
interpretation that negates powers explicitly granted to local governments. To rule against the
power of LGUs to reclassify areas within their jurisdiction will subvert the principle of local
autonomy guaranteed by the Constitution.160 As we have noted in earlier decisions, our
national officials should not only comply with the constitutional provisions on local autonomy
but should also appreciate the spirit and liberty upon which these provisions are based.161

The DOE Cannot Exercise The Power Of Control Over LGUs

Another reason that militates against the DOE’s assertions is that Section 4 of Article X of the Constitution
confines the President’s power over LGUs to one of general supervision:

SECTION 4. The President of the Philippines shall exercise general supervision over local governments.
Xxxx

Consequently, the Chief Executive or his or her alter egos, cannot exercise the power of control over
them.162Control and supervision are distinguished as follows:
 [Supervision] means overseeing or the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to fulfill them, the former may take
such action or step as prescribed by law to make them perform their duties. Control, on the
other hand, means the power of an officer to alter or modify or nullify or set aside what a
subordinate officer ha[s] done in the performance of his duties and to substitute the judgment
of the former for that of the latter.163

Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it
does not include any restraining authority over such body.164 It does not allow the supervisor to annul the
acts of the subordinate.165 Here, what the DOE seeks to do is to set aside an ordinance enacted by local
officials, a power that not even its principal, the President, has. This is because:

Under our present system of government, executive power is vested in the President. The
members of the Cabinet and other executive officials are merely alter egos. As such, they are
subject to the power of control of the President, at whose will and behest they can be
removed from office; or their actions and decisions changed, suspended or reversed. In
contrast, the heads of political subdivisions are elected by the people. Their sovereign powers
emanate from the electorate, to whom they are directly accountable. By constitutional fiat,
they are subject to the President’s supervision only, not control, so long as their acts are
exercised within the sphere of their legitimate powers. By the same token, the President may
not withhold or alter any authority or power given them by the Constitution and the law.166

Thus, the President and his or her alter egos, the department heads, cannot interfere with the activities of
local governments, so long as they act within the scope of their authority. Accordingly, the DOE cannot
substitute its own discretion for the discretion exercised by the sanggunian of the City of Manila. In local
affairs, the wisdom of local officials must prevail as long as they are acting within the parameters of the
Constitution and the law.167

Ordinance No. 8027 Is Not Invalid For Failure To Comply With RA 7924 And EO 72

The oil companies argue that zoning ordinances of LGUs are required to be submitted to the Metropolitan
Manila Development Authority (MMDA) for review and if found to be in compliance with its metropolitan
physical framework plan and regulations, it shall endorse the same to the Housing and Land Use
Regulatory Board (HLURB). Their basis is Section 3 (e) of RA 7924: 168

SECTION 3. Scope of MMDA Services. ― Metro-wide services under the jurisdiction of the
MMDA are those services which have metro-wide impact and transcend local political
boundaries or entail huge expenditures such that it would not be viable for said services to be
provided by the individual [LGUs] comprising Metropolitan Manila. These services shall
include:

xxx xxx xxx

(g) Urban renewal, zoning, and land use planning, and shelter services which include the
formulation, adoption and implementation of policies, standards, rules and regulations,
programs and projects to rationalize and optimize urban land use and provide direction to
urban growth and expansion, the rehabilitation and development of slum and blighted areas,
the development of shelter and housing facilities and the provision of necessary social services
thereof. (Emphasis supplied)

Reference was also made to Section 15 of its implementing rules:

 Section 15. Linkages with HUDCC, HLURB, NHA, LGUs and Other National Government
Agencies Concerned on Urban Renewal, Zoning and Land Use Planning and Shelter Services.
Within the context of the National Housing and Urban Development Framework, and pursuant
to the national standards, guidelines and regulations formulated by the Housing and Land Use
Regulatory Board [HLURB] on land use planning and zoning, the [MMDA] shall prepare a
metropolitan physical framework plan and regulations which shall complement and translate
the socio-economic development plan for Metro Manila into physical or spatial terms, and
provide the basis for the preparation, review, integration and implementation of local land use
plans and zoning, ordinance of cities and municipalities in the area.

Said framework plan and regulations shall contain, among others, planning and zoning policies
and procedures that shall be observed by local government units in the preparation of their
own plans and ordinances pursuant to Section 447 and 458 of RA 7160, as well as the
identification of sites and projects that are considered to be of national or metropolitan
significance.

Cities and municipalities shall prepare their respective land use plans and zoning ordinances
and submit the same for review and integration by the [MMDA] and indorsement to HLURB
in accordance with Executive Order No. 72 and other pertinent laws.

In the preparation of a Metropolitan Manila physical framework plan and regulations, the
[MMDA] shall coordinate with the Housing and Urban Development Coordinating Council,
HLURB, the National Housing Authority, Intramuros Administration, and all other agencies of
the national government which are concerned with land use and zoning, urban renewal and
shelter services. (Emphasis supplied)

They also claim that EO 72169 provides that zoning ordinances of cities and municipalities of Metro Manila
are subject to review by the HLURB to ensure compliance with national standards and guidelines. They
cite Section 1, paragraphs I, (e), (f) and (g):

SECTION 1. Plan formulation or updating. ―

xxx xxx xxx

(g) Cities and municipalities of Metropolitan Manila shall continue to formulate or

update their respective comprehensive land use plans, in accordance with the land
use planning and zoning standards and guidelines prescribed by the HLURB
pursuant to EO 392, S. of 1990, and other pertinent national policies.

xxx xxx xxx

(e) Pursuant to LOI 729, S. of 1978, EO 648, S. of 1981, and RA 7279, the comprehensive land
use plansof provinces, highly urbanized cities and independent component cities shall be
reviewed and ratified by the HLURB to ensure compliance with national standards and
guidelines.

(f) Pursuant to EO 392, S. of 1999, the comprehensive land use plans of cities and
municipalities of Metropolitan Manila shall be reviewed by the HLURB to ensure compliance
with national standards and guidelines.
 (g) Said review shall be completed within three (3) months upon receipt thereof otherwise, the
same shall be deemed consistent with law, and, therefore, valid. (Emphasis supplied)

They argue that because Ordinance No. 8027 did not go through this review process, it is invalid.

The argument is flawed.

RA 7942 does not give MMDA the authority to review land use plans and zoning ordinances of cities and
municipalities. This was only found in its implementing rules which made a reference to EO 72. EO 72
expressly refers to comprehensive land use plans (CLUPs) only. Ordinance No. 8027 is admittedly not a
CLUP nor intended to be one. Instead, it is a very specific ordinance which reclassified the land use of a
defined area in order to prevent the massive effects of a possible terrorist attack. It is Ordinance No. 8119
which was explicitly formulated as the "Manila [CLUP] and Zoning Ordinance of 2006." CLUPs are the
ordinances which should be submitted to the MMDA for integration in its metropolitan physical
framework plan and approved by the HLURB to ensure that they conform with national guidelines and
policies.

Moreover, even assuming that the MMDA review and HLURB ratification are necessary, the oil companies
did not present any evidence to show that these were not complied with. In accordance with the
presumption of validity in favor of an ordinance, its constitutionality or legality should be upheld in the
absence of proof showing that the procedure prescribed by law was not observed. The burden of proof is
on the oil companies which already had notice that this Court was inclined to dispose of all the issues in
this case. Yet aside from their bare assertion, they did not present any certification from the MMDA or the
HLURB nor did they append these to their pleadings. Clearly, they failed to rebut the presumption of
validity of Ordinance No. 8027.170

Conclusion

Essentially, the oil companies are fighting for their right to property. They allege that they stand to lose
billions of pesos if forced to relocate. However, based on the hierarchy of constitutionally protected
rights, the right to life enjoys precedence over the right to property. 171 The reason is obvious: life is
irreplaceable, property is not. When the state or LGU’s exercise of police power clashes with a few
individuals’ right to property, the former should prevail.172

Both law and jurisprudence support the constitutionality and validity of Ordinance No. 8027. Without a
doubt, there are no impediments to its enforcement and implementation. Any delay is unfair to the
inhabitants of the City of Manila and its leaders who have categorically expressed their desire for the
relocation of the terminals. Their power to chart and control their own destiny and preserve their lives
and safety should not be curtailed by the intervenors’ warnings of doomsday scenarios and threats of
economic disorder if the ordinance is enforced.

Secondary to the legal reasons supporting the immediate implementation of Ordinance No. 8027 are the
policy considerations which drove Manila’s government to come up with such a measure:

... [The] oil companies still were not able to allay the apprehensions of the city regarding the
security threat in the area in general. No specific action plan or security measures were
presented that would prevent a possible large-scale terrorist or malicious attack especially an
attack aimed at Malacañang. The measures that were installed were more directed towards
their internal security and did not include the prevention of an external attack even on a
bilateral level of cooperation between these companies and the police and military.
 xxx xxx xxx

It is not enough for the city government to be told by these oil companies that they have the
most sophisticated fire-fighting equipments and have invested millions of pesos for these
equipments. The city government wants to be assured that its residents are safe at any time
from these installations, and in the three public hearings and in their position papers, not one
statement has been said that indeed the absolute safety of the residents from the hazards
posed by these installations is assured.173

We are also putting an end to the oil companies’ determination to prolong their stay in Pandacan despite
the objections of Manila’s residents. As early as October 2001, the oil companies signed a MOA with the
DOE obliging themselves to:

... undertake a comprehensive and comparative study ... [which] shall include the preparation
of a Master Plan, whose aim is to determine the scope and timing of the feasible location of
the Pandacan oil terminals and all associated facilities and infrastructure including government
support essential for the relocation such as the necessary transportation infrastructure, land
and right of way acquisition, resettlement of displaced residents and environmental and social
acceptability which shall be based on mutual benefit of the Parties and the public.174

Now that they are being compelled to discontinue their operations in the Pandacan Terminals, they
cannot feign unreadiness considering that they had years to prepare for this eventuality.

Just the same, this Court is not about to provoke a crisis by ordering the immediate relocation of the
Pandacan Terminals out of its present site. The enforcement of a decision of this Court, specially one with
far-reaching consequences, should always be within the bounds of reason, in accordance with a
comprehensive and well-coordinated plan, and within a time-frame that complies with the letter and
spirit of our resolution. To this end, the oil companies have no choice but to obey the law.

A Warning To Petitioners’ Counsel

We draw the attention of the parties to a matter of grave concern to the legal profession.

Petitioners and their counsel, Atty. Samson Alcantara, submitted a four-page memorandum that clearly
contained either substance nor research. It is absolutely insulting to this Court.

We have always tended towards judicial leniency, temperance and compassion to those who suffer from
a wrong perception of what the majesty of the law means. But for a member of the bar, an officer of the
court, to file in this Court a memorandum of such unacceptable quality is an entirely different matter.

It is indicative less of a personal shortcoming or contempt of this Court and more of a lawyer’s sorry
descent from a high sense of duty and responsibility. As a member of the bar and as an officer of the
court, a lawyer ought to be keenly aware that the chief safeguard of the body politic is respect for the law
and its magistrates.

There is nothing more effective than the written word by which counsel can persuade this Court of the
righteousness of his cause. For if truth were self-evident, a memorandum would be completely
unnecessary and superfluous.
The inability of counsel to prepare a memorandum worthy of this Court’s consideration is an ejemplo
malo to the legal profession as it betrays no genuine interest in the cause he claims to espouse. Or did
counsel think he can earn his moment of glory without the hard work and dedication called for by his
petition?

A Final Word

On Wednesday, January 23, 2008, a defective tanker containing 2,000 liters of gasoline and 14,000 liters
of diesel exploded in the middle of the street a short distance from the exit gate of the Pandacan
Terminals, causing death, extensive damage and a frightening conflagration in the vicinity of the incident.
Need we say anthing about what will happen if it is the estimated 162 to 211 million liters175 of petroleum
products in the terminal complex which blow up?

WHEREFORE, the motions for leave to intervene of Chevron Philippines Inc., Petron Corporation and
Pilipinas Shell Petroleum Corporation, and the Republic of the Philippines, represented by the Department
of Energy, are hereby GRANTED. Their respective motions for reconsideration are hereby DENIED. The
Regional Trial Court, Manila, Branch 39 is ORDERED to DISMISS the consolidated cases of Civil Case No.
03-106377 and Civil Case No. 03-106380.

We reiterate our order to respondent Mayor of the City of Manila to enforce Ordinance No. 8027. In
coordination with the appropriate agencies and other parties involved, respondent Mayor is hereby
ordered to oversee the relocation and transfer of the Pandacan Terminals out of its present site.

To ensure the orderly transfer, movement and relocation of assets and personnel, the intervenors
Chevron Philippines Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation shall, within a non-
extendible period of ninety (90) days, submit to the Regional Trial Court of Manila, Branch 39, the
comprehensive plan and relocation schedule which have allegedly been prepared. The presiding judge of
Manila RTC, Branch 39 will monitor the strict enforcement of this resolution.

Atty. Samson Alcantara is hereby ordered to explain within five (5) days from notice why he should not be
disciplined for his refusal, or inability, to file a memorandum worthy of the consideration of this Court.

Treble costs against petitioners’ counsel, Atty. Samson Alcantara.

SO ORDERED.

Footnotes

57
To justify their late intervention, the oil companies explained that [they] were aware of this
Petition before the Honorable Court but they opted not to intervene then because they
believed that it was more proper to directly attack the validity of Ordinance No. 8027
(Memorandum, p. 22). They also said that they did not deem it necessary to intervene then
because they relied in good faith that respondent [Mayor] would, as a conscientious litigant,
interpose a fitting defense of the instant Petition. (Footnote no. 2, id., p. 3)

59
The full text reads:
 SEC. 3. Petition for Mandamus. — When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent, immediately or at some other time to be
specified by the court, to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent. xxx

73
Sec. 1. Judicial notice, when mandatory. - A court shall take judicial notice, without
introduction of evidence, of the existence and territorial extent of states, their political history,
forms of government and symbols of nationality, the law of nations, the admiralty and
maritime courts of the world and their seals, the political constitution and history of the
Philippines, the official acts of the legislative, executive and judicial departments of the
Philippines, the laws of nature, the measure of time and the geographical divisions.

107
A special law is one which relates to particular persons or things of a class, or to a particular
portion or section of the state only; Leynes v. Commission on Audit, supra note 102, footnote
no. 21, citing U.S. v. Serapio, 23 Phil 584 [1912].

108
A general law is one which affects all people of the state or all of a particular class of
persons in the state or embraces a class of subjects or places and does not omit any subject or
place naturally belonging to such class; id., footnote no. 22, citing U.S. v. Serapio, id; Valera v.
Tuason, 80 Phil 823 (1948) and Villegas v. Subido, supra note 97.

MMDA vs Concerned Citizens of Manila Bay, G.R. No. 171947-48, Dec. 18, 2008

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. Nos. 171947-48 December 18, 2008

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT AND NATURAL

RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, 1 DEPARTMENT OF HEALTH,
DEPARTMENT OF AGRICULTURE, DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF
BUDGET AND MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME
GROUP, and DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS, SABINIANO
ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEÑA, PAUL DENNIS QUINTERO, MA. VICTORIA
LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA, SARAH JOELLE
LINTAG, HANNIBAL AUGUSTUS BOBIS, FELIMON SANTIAGUEL, and JAIME AGUSTIN R.
OPOSA, respondents.

DECISION

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 sights on the ill effects of
pollution, the destruction of forests and other critical habitats, oil spills, and the unabated improper
disposal 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 and 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 expanse 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 Regional 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 the RTC, the complaint alleged that the water quality
of the Manila Bay had fallen way below the allowable standards set by law, specifically Presidential
Decree No. (PD) 1152 or the Philippine Environment Code. This environmental aberration, the complaint
stated, stemmed from:

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

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) Respondents’ constitutional right to life, health, and a balanced ecology;

(2) The Environment Code (PD 1152);

 (3) The Pollution Control Law (PD 984);

(4) The Water Code (PD 1067);

(5) The Sanitation Code (PD 856);

(6) The Illegal Disposal of Wastes Decree (PD 825);

(7) The Marine Pollution Law (PD 979);

(8) Executive Order No. 192;

(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);

(10) Civil Code provisions on nuisance and human relations;

(11) The Trust Doctrine and the Principle of Guardianship; and

(12) 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 Natural Resources (DENR), testifying for
petitioners, stated that water samples collected from different beaches around the Manila Bay showed
that the amount of fecal coliform content ranged from 50,000 to 80,000 most probable number (MPN)/ml
when what DENR Administrative Order No. 34-90 prescribed as a safe level for bathing and other forms of
contact recreational activities, 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 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 Decision5 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 action 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 ship-generated 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.

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.

Defendant DECS, to inculcate in the minds and hearts of the people through education the
importance of preserving and protecting the environment.

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.
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 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 Decision6 of September 28, 2005, the CA denied petitioners’ appeal and affirmed the Decision of the
RTC in toto, stressing that the trial court’s decision did not require petitioners to do tasks outside of their
usual basic functions under existing laws.7

Petitioners are now before this Court praying for the allowance of their Rule 45 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 COURT’S 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

[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.

The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the headings, Upgrading
of Water Quality and Clean-up Operations, envisage a cleanup in general or are they limited only to the
cleanup of specific pollution incidents? And second, can petitioners be compelled by mandamus to clean
up and rehabilitate the Manila Bay?

On August 12, 2008, the Court conducted and heard the parties on oral arguments.
Our Ruling

We shall first dwell on the propriety of the issuance of mandamus under the premises.

The Cleaning or Rehabilitation of Manila Bay

Can be Compelled by Mandamus

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.

Petitioners maintain that the MMDA’s 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 that petitioners’ duty
to comply with and act according to the clear mandate of the law does not require the exercise of
discretion. According to respondents, petitioners, the MMDA in particular, are without discretion, for
example, to choose which bodies of water they are to 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 solid and liquid waste disposal; in other words, it is the MMDA’s ministerial
duty to attend to such services.

We agree with respondents.

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 different concepts. While the
implementation of the MMDA’s mandated tasks may entail a decision-making process, the enforcement
of the law or the very act of doing what the law exacts to be done is ministerial in nature and may be
compelled by mandamus. We said so in Social Justice Society v. Atienza 11 in which the Court directed the
City of Manila 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 MMDA’s 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 MMDA’s duty in this regard is spelled out in Sec. 3(c) of Republic Act No. (RA) 7924
creating the MMDA. This section defines and delineates the scope of the MMDA’s 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.)
The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act (RA
9003) which prescribes the minimum criteria for the establishment of sanitary landfills and Sec. 42 which
provides the minimum operating requirements that each site operator shall maintain in the operation of a
sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,12 enjoining the MMDA and local
government units, among others, after the effectivity of the law on February 15, 2001, from using and
operating open dumps for solid waste and disallowing, five years after such effectivity, the use of
controlled dumps.

The MMDA’s 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 "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-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 indirectly to the cleanup, rehabilitation, protection, and preservation
of the Manila Bay. They are precluded from choosing not to perform these duties. Consider:

(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 country’s 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 Act’s
Sec. 19(k), exercises jurisdiction "over all aspects of water pollution, determine[s] its location, magnitude,
extent, severity, causes and effects and other pertinent information on pollution, and [takes] measures,
using available methods and technologies, to prevent and abate such pollution."

The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report, an Integrated
Water Quality Management Framework, and a 10-year Water Quality Management Area Action Plan
which is nationwide in scope covering the Manila Bay and adjoining areas. Sec. 19 of RA 9275 provides:

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;

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.
The DENR has prepared the status report for the period 2001 to 2005 and is in the process of completing
the preparation of the Integrated Water Quality Management Framework. 16 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.

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

(3) The LWUA under PD 198 has the power of supervision and control over local water districts. It can
prescribe the minimum standards and regulations for the operations of these districts and shall monitor
and evaluate local water standards. The LWUA can direct 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, the LWUA, as attached agency of the DPWH, is tasked with providing
sewerage and sanitation 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 the Manila 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 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
29223 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-wide services
relating to "flood control and sewerage management which include the formulation and implementation
of policies, standards, programs and projects for an integrated flood control, drainage and sewerage
system."

On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and MMDA,
whereby MMDA was made the agency primarily responsible for flood control in Metro Manila. For the
rest of the country, DPWH shall remain as the implementing agency for flood control services. The
mandate of the MMDA and DPWH on flood control and drainage services shall include the removal of
structures, constructions, and encroachments built along rivers, waterways, and esteros (drainages) in
violation of RA 7279, PD 1067, and other pertinent laws.

(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 or the Marine Pollution Decree of 1976, shall have the primary responsibility of enforcing laws,
rules, and regulations governing marine pollution within the territorial waters of the Philippines. It shall
promulgate its own rules and regulations 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.

(7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act of 1990 was signed
into law on December 13, 1990, the PNP Maritime Group was tasked to "perform all police functions over
the Philippine territorial waters and rivers." Under Sec. 86, RA 6975, the police functions of the PCG shall
be taken over by the PNP when the latter acquires the capability to perform such functions. Since the PNP
Maritime Group has not yet attained 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, and regulations governing marine pollution within the territorial waters of the Philippines.
This was made clear in Sec. 124, RA 8550 or the Philippine Fisheries Code of 1998, in which both the PCG
and PNP Maritime Group were authorized to enforce said law and other fishery laws, rules, and
regulations.25

(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 the Manila Bay waters from vessels docked at ports and apprehend the
violators. When the 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.

(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary landfill and
solid waste and liquid disposal system as well as other alternative garbage disposal systems. It is primarily
responsible for the implementation and enforcement of the provisions of RA 9003, which would
necessary include its penal provisions, within its area of jurisdiction.29

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 of solid waste, squatting
in open dumps and landfills, open dumping, burying of biodegradable or non- biodegradable materials in
flood-prone areas, establishment or operation of open dumps as enjoined in RA 9003, and operation of
waste management facilities without an environmental compliance certificate.

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, railroad tracks, garbage
dumps, riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks and
playgrounds." The MMDA, as lead agency, in coordination with the DPWH, LGUs, and concerned agencies,
can dismantle and remove all structures, constructions, and other encroachments built in breach of RA
7279 and other pertinent laws along the rivers, waterways, and esteros in Metro Manila. With respect to
rivers, waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite, and Laguna that discharge
wastewater directly or eventually into the Manila Bay, the DILG shall direct the concerned LGUs to
implement the demolition and removal of such structures, constructions, and other encroachments built
in violation of RA 7279 and other applicable laws in coordination with the DPWH and concerned agencies.

(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 that affect the source of a
water supply or a reservoir for domestic or municipal use. And under Sec. 8 of RA 9275, the DOH, in
coordination with the DENR, DPWH, and other concerned agencies, shall formulate guidelines and
standards for the collection, treatment, and disposal of sewage and the establishment and operation of a
centralized sewage treatment system. In areas not considered as highly urbanized cities, septage or a mix
sewerage-septage management system shall be employed.

In accordance with Sec. 7230 of PD 856, the Code of Sanitation of the Philippines, and Sec. 5.1.1 31 of
Chapter XVII of its implementing rules, the DOH is also ordered to ensure the regulation and monitoring of
the proper disposal of wastes by private sludge companies through the strict enforcement of the
requirement to obtain an environmental sanitation clearance of sludge collection treatment and disposal
before these companies are issued their environmental sanitation permit.
(11) The Department of Education (DepEd), under the Philippine Environment Code (PD 1152), is
mandated to integrate subjects on environmental education in its school curricula at all levels. 32 Under
Sec. 118 of RA 8550, the DepEd, in collaboration with the DA, Commission on Higher Education, and
Philippine Information Agency, shall launch and pursue a nationwide educational campaign to promote
the development, management, conservation, and proper use of the environment. Under the Ecological
Solid Waste Management Act (RA 9003), on the other hand, it is directed to strengthen the integration of
environmental concerns in school curricula at all levels, with an emphasis on waste management
principles.33

(12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of the
Administrative Code of 1987 to ensure the efficient and sound utilization of government funds and
revenues so as to effectively achieve the country’s development objectives.34

One of the country’s 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 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.

Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble objectives of RA
9275 in line with the country’s 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

Include Cleaning in General

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.
When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, o, amended the counterpart
provision (Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152 continues, however, to be
operational.

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
operations 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 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.

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 pre-spill condition.

h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that result
from accidents such as collisions and groundings.

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 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 that presuppose the occurrence of specific, isolated
pollution events requiring the corresponding containment, removal, and cleaning operations. Pushing the
point further, they argue that the aforequoted Sec. 62(g) requires "cleanup operations" to restore the
body of water to pre-spill condition, which means that there must have been a specific incident of either
intentional or accidental spillage of oil or other hazardous substances, as mentioned in Sec. 62(h).

As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as 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 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 issues, 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 definition. As pointed out, the phrases "cleanup operations" and
"accidental spills" do not appear in said Sec. 17, not even in the chapter where said section is found.

Respondents are correct. For one thing, said Sec. 17 does not in any way state that the government
agencies concerned ought to confine themselves to the containment, removal, and cleaning operations
when a specific pollution incident occurs. On the contrary, Sec. 17 requires them to act even in the
absence of a specific pollution incident, as long as water quality "has deteriorated to a degree where its
state will adversely affect its best usage." This section, to stress, commands concerned government
agencies, when appropriate, "to take 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 it is properly
applicable to a specific situation in which the pollution is caused by polluters who fail to clean up the mess
they left behind. In such instance, the concerned government agencies shall undertake the cleanup work
for the polluters’ account. Petitioners’ assertion, that they have to perform cleanup operations in the
Manila Bay only when there is a water pollution incident and the erring polluters do not undertake the
containment, removal, and cleanup operations, is quite off mark. As earlier discussed, the complementary
Sec. 17 of the Environment Code comes into play and the specific duties of the agencies to clean up come
in 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 cleanup mandate depends
on the happening of a specific pollution incident. In this regard, what the CA said with respect to the
impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is practical. The appellate court wrote: "PD
1152 aims to introduce a comprehensive program of environmental protection and management. This is
better served by making Secs. 17 & 20 of general application rather than limiting them to specific
pollution incidents."35

Granting arguendo that petitioners’ position thus described vis-à-vis the implementation of Sec. 20 is
correct, they seem to have overlooked the fact that the pollution of the Manila Bay is of such magnitude
and scope that it is well-nigh impossible to draw the line between a specific and a general pollution
incident. And such impossibility extends to pinpointing with reasonable certainty who the polluters are.
We note that Sec. 20 of PD 1152 mentions "water pollution incidents" which may be caused by polluters
in the waters of the Manila Bay itself or by polluters in adjoining lands and in water bodies or waterways
that empty into the bay. Sec. 16 of RA 9275, on the other hand, specifically adverts to "any person who
causes pollution in or pollutes water bodies," which may refer to an individual or an establishment that
pollutes the land mass near the Manila Bay or the waterways, such that the contaminants eventually end
up in the bay. In this situation, the water pollution incidents are so numerous and involve nameless and
faceless polluters that they can validly be categorized as beyond the specific pollution incident level.

Not to be ignored of course is the reality that the government agencies concerned are so undermanned
that it would be almost impossible to apprehend the numerous polluters of the Manila Bay. It may
perhaps not be amiss to say that the apprehension, if any, of the Manila Bay polluters has been few and
far between. Hence, practically nobody has been required to contain, remove, or clean up a given water
pollution incident. In this kind of setting, it behooves the Government to step in and undertake cleanup
operations. Thus, Sec. 16 of RA 9275, previously Sec. 20 of PD 1152, covers for all intents and purposes a
general cleanup situation.

The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term
solution. The preservation of the water quality of the bay after the rehabilitation process is as important
as the cleaning phase. It is imperative then that the wastes and contaminants found in the rivers, inland
bays, and other bodies of water be stopped from reaching the Manila Bay. Otherwise, any cleanup effort
would just be a futile, cosmetic exercise, for, in no time at all, the Manila Bay water quality would again
deteriorate below the ideal minimum standards set by PD 1152, RA 9275, and other relevant laws. It thus
behooves the Court to put the heads of the petitioner-department-agencies and the bureaus and offices
under them on continuing notice about, and to enjoin them to perform, their mandates and duties
towards cleaning up the Manila Bay and preserving the quality of its water to the ideal level. Under what
other judicial discipline describes as "continuing mandamus,"36 the Court may, under extraordinary
circumstances, issue directives with the end in view of ensuring that its decision would not be set to
naught by administrative inaction or indifference. In India, the doctrine of continuing mandamus was used
to enforce directives of the court to clean up the length of the Ganges River from industrial and municipal
pollution.37

The Court can take judicial notice of the presence of shanties and other unauthorized structures which do
not have septic tanks along the Pasig-Marikina-San Juan Rivers, the National Capital Region (NCR)
(Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycuayan-
Marilao-Obando (Bulacan) Rivers, the Talisay (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
there is one factor responsible for the pollution of the major river systems and the Manila Bay, these
unauthorized structures would be on top of the list. And if the issue of illegal or unauthorized structures is
not seriously addressed with sustained resolve, then practically all efforts to cleanse these important
bodies of water would be for naught. The DENR Secretary said as much.38

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 zonelonger than what is necessary for recreation, navigation,
floatage, fishing or salvage or to build structures of any kind. (Emphasis added.)

Judicial notice may likewise be taken of factories and other industrial establishments standing along or
near the banks of the Pasig River, other major rivers, and connecting waterways. But while they may not
be treated as unauthorized constructions, some of these establishments undoubtedly contribute to the
pollution of the Pasig River and waterways. The DILG and the 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.

At this juncture, and if only to dramatize the urgency of the need for petitioners-agencies to comply with
their statutory tasks, we cite the Asian Development Bank-commissioned study on the garbage problem in
Metro Manila, the results of which are embodied in the The Garbage Book. As there reported, the
garbage crisis in the metropolitan area is as alarming as it is shocking. Some highlights of the report:

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 River
systems and Manila Bay.40

Given the above perspective, sufficient sanitary landfills should now more than ever be established as
prescribed by the Ecological Solid Waste Management Act (RA 9003). Particular note should be taken of
the blatant violations by some LGUs and possibly the MMDA 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.)

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 single sanitary landfill which strictly complies with the
prescribed standards under RA 9003 has yet been set up.

In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like littering, dumping of
waste matters in roads, canals, esteros, and other public places, operation of open dumps, open burning
of solid waste, and the like. Some sludge companies which do not have proper disposal facilities simply
discharge sludge into the Metro Manila sewerage system that ends up in the Manila Bay. Equally
unabated are violations of Sec. 27 of RA 9275, which enjoins the pollution of water bodies, groundwater
pollution, disposal of 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
human or machine of substances to the aquatic environment including "dumping/disposal of waste and
other marine litters, discharge of petroleum or residual products of petroleum of carbonaceous
materials/substances [and other] radioactive, noxious or harmful liquid, gaseous or solid substances, from
any water, land or air transport or other human-made structure."

In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme
necessity for all concerned executive departments and agencies to immediately act and discharge their
respective official duties and obligations. Indeed, time is of the essence; hence, there is a need to set
timetables for the performance and completion of the tasks, some of them as defined for them by law
and the nature of their respective offices and mandates.

The importance of the Manila Bay as a sea resource, playground, and as a historical landmark cannot be
over-emphasized. It is not yet too late in the day to restore the Manila Bay to its former splendor and
bring back the plants and sea life that once thrived in its blue waters. But the tasks ahead, daunting as
they may be, could only be accomplished if those mandated, with the help and cooperation of all civic-
minded individuals, would put their minds to these tasks and take responsibility. This means that the
State, through petitioners, has to take the lead in the preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend their
limitations, real or imaginary, and buckle down to work before the problem at hand becomes
unmanageable. Thus, we must reiterate that different government agencies and instrumentalities cannot
shirk from their mandates; they must perform their basic functions in cleaning up and rehabilitating the
Manila Bay. We are disturbed by petitioners’ hiding behind two untenable claims: (1) that there ought to
be a specific pollution incident before they are required to act; and (2) that the cleanup of the bay is a
discretionary duty.

RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste
management. It implements Sec. 16, Art. II of the 1987 Constitution, which explicitly provides 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.

So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful ecology
need not even 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.41 Even assuming the absence of a categorical legal
provision specifically prodding petitioners to clean up the bay, they and the men and women representing
them cannot escape their obligation to 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.

WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV No. 76528
and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No. 1851-99
are AFFIRMED but with MODIFICATIONS in view of subsequent developments or supervening events in
the case. The fallo of the RTC Decision shall now read:

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

agencies to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its
waters to SB level (Class B sea waters per Water Classification Tables under DENR
Administrative Order No. 34 [1990]) to make them fit for swimming, skin-diving, and other
forms of contact recreation.

In particular:

(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the
conservation, management, development, and proper use of the country’s environment and natural
resources, and Sec. 19 of RA 9275, designating the DENR as the primary government agency responsible
for its enforcement and implementation, the DENR is directed to fully implement its Operational Plan for
the Manila Bay Coastal Strategy for the rehabilitation, restoration, and conservation of the Manila Bay at
the earliest possible time. It is ordered to call regular coordination meetings with concerned government
departments and agencies to ensure the successful implementation of the aforesaid plan of action in
accordance with its indicated completion schedules.

(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of the Local
Government Code of 1991,42 the DILG, in exercising the President’s power of general supervision and its
duty to promulgate guidelines in establishing waste management programs under Sec. 43 of the
Philippine Environment Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite,
Bulacan, Pampanga, and Bataan to inspect all factories, commercial establishments, and private homes
along the banks of the major river systems in their respective areas of jurisdiction, such as but not limited
to the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and waterways that
eventually discharge water into the Manila Bay; and the lands abutting the bay, to determine whether
they have wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws,
ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to require non-
complying establishments and homes to set up said facilities or septic tanks within a reasonable time to
prevent industrial wastes, sewage water, and human wastes from flowing into these rivers,
waterways, esteros, and the Manila Bay, under pain of closure or imposition of fines and other sanctions.

(3) As mandated by Sec. 8 of RA 9275,43 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 51346 and the International Convention for the Prevention of
Pollution from Ships, the PPA is ordered to immediately adopt such measures to prevent the discharge
and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from
vessels docked at ports and apprehend the violators.

(8) The MMDA, as the lead agency and implementor of programs and projects for flood control projects
and drainage services in Metro Manila, in coordination with the DPWH, DILG, affected LGUs, PNP
Maritime Group, Housing and Urban Development Coordinating Council (HUDCC), and other agencies,
shall dismantle and remove all structures, constructions, and other encroachments established or built in
violation of RA 7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR
(Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting
waterways and esteros in Metro Manila. The DPWH, as the principal implementor of programs and
projects for flood control services in the rest of the country more particularly in Bulacan, Bataan,
Pampanga, Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP Maritime Group,
HUDCC, and other concerned government agencies, shall remove and demolish all structures,
constructions, and other encroachments built in breach of RA 7279 and other applicable laws along the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other rivers, connecting waterways, and esteros that discharge wastewater into the
Manila Bay.

In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as prescribed by
RA 9003, within a period of one (1) year from finality of this Decision. On matters within its territorial
jurisdiction and in connection with the discharge of its duties on the maintenance of sanitary landfills and
like undertakings, it is also ordered to cause the apprehension and filing of the appropriate criminal cases
against violators of the respective penal provisions of RA 9003, 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 within which to set up the necessary facilities
under pain of cancellation of its environmental sanitation clearance.

(10) Pursuant to Sec. 53 of PD 1152,48 Sec. 118 of RA 8550, and Sec. 56 of RA 9003,49 the DepEd shall
integrate lessons on pollution prevention, waste management, environmental protection, and like
subjects in the school curricula of all levels to inculcate in the minds and hearts of students and, through
them, their parents and friends, the importance of their duty toward achieving and maintaining a
balanced and healthful ecosystem in the Manila Bay and the entire Philippine archipelago.

(11) The DBM shall consider incorporating an adequate budget in the General Appropriations Act of 2010
and succeeding years to cover the expenses relating to the cleanup, restoration, and preservation of the
water quality of the Manila Bay, in line with the country’s development objective to attain economic
growth in a manner consistent with the protection, preservation, and revival of our marine waters.

(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime
Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of "continuing mandamus,"
shall, from finality of this Decision, each submit to the Court a quarterly progressive report of the
activities undertaken in accordance with this Decision.

No costs.

SO ORDERED.

Footnotes

17
Per information from the Water Quality Management Section, Environmental Management
Bureau, DENR, as validated by the DENR Secretary during the oral arguments. TSN, pp. 119-
120.

18
"An Act Creating the [MWSS] and Dissolving the National Waterworks and Sewerage
Authority [NAWASA]; and for Other Purposes."

19
Sec. 22. Linkage Mechanism.––The [DENR] and its concerned attached agencies x x x shall
coordinate and enter into agreement with other government agencies, industrial sector and
other concerned sectors in the furtherance of the objectives of this Act. The following agencies
shall perform tile functions specified hereunder:

xxxx

b) DPWH through its attached agencies, such as the MWSS, LWUA, and including
other urban water utilities for the provision or sewerage and sanitation facilities
and the efficient and safe collection, treatment and disposal of sewage within their
area of jurisdiction.

20
Book IV, Title IV, Sec. 2.
21
Sec. 14. Monitoring Control and Surveillance of the Philippine Waters.––A monitoring,
control and surveillance system shall be established by the [DA] in coordination with LGUs and
other agencies concerned to ensure that the fisheries and aquatic resources in the Philippine
waters are judiciously and wisely utilized and managed on a sustainable basis x x x.

22
Sec. 22. Linkage Mechanism.––x x x x

a) Philippine Coast Guard in coordination with DA and DENR shall enforce for the
enforcement of water quality standards in marine waters x x x specifically from
offshore sources;

xxxx

c) DA, shall coordinate with the DENR, in the formulation of guidelines x x x for the
prevention, control and abatement of pollution from agricultural and aquaculture
activities x x x Provided, further, That the x x x BFAR of the DA shall be primarily
responsible for the prevention and control of water pollution for the development,
management and conservation of the fisheries and aquatic resources.

23
Book IV, Title V, Sec. 2. Mandate.––The [DPWH] shall be the State’s engineering arm and is
tasked to carry out the policy enumerated above [i.e., the planning, design, construction, and
maintenance of infrastructure facilities, especially x x x flood control and water resources
development systems].

Sec. 3. Powers and Functions.––The Department, in order to carry out its mandate,
shall:

xxxx

(2) Develop and implement effective codes, standards, and reasonable guidelines to
ensure the safety of all public and private structures in the country and assure
efficiency and proper quality in the construction of public works;

(3) Ascertain that all public works plans and project implementation designs are
consistent with current standards and guidelines;

xxxx

(8) Provide an integrated planning for x x x flood control and water resource and
water resource development systems x x x.

24
Sec. 6. Enforcement and Implementation.–The [PCG] shall have the primary responsibility of
enforcing the laws, rules and regulations governing marine pollution. However, it shall be the
joint responsibility of the [PCG] and the National Pollution Control Commission to coordinate
and cooperate with each other in the enforcement of the provisions of this decree and its
implementing rules and regulations, and may call upon any other government office,
instrumentality or agency to extend every assistance in this respect.

27
EO 513, "Reorganizing the Philippine Ports Authority," Sec. 2 provides further:
Section 6 is hereby amended by adding a new paragraph to read as follows:

Sec. 6-c. Police Authority.–x x x Such police authority shall include the following:

xxxx

c) To maintain peace and order inside the port, in coordination with local police
authorities;

xxxx

e) To enforce rules and regulations promulgated by the Authority pursuant to law.

28
"International Convention for the Prevention of Marine Pollution from Ships, 1973 as
modified by the Protocol of 1978 Relating Thereto."

29
Sec. 10. Role of LGUs in Solid Waste Management.––Pursuant to the relevant provisions of
RA No. 7160, otherwise known as the Local Government Code, the LGUs shall be primarily
responsible for the implementation and enforcement of the provisions of this Act within their
respective jurisdictions.

30
Sec. 72. Scope of Supervision of the Department.––The approval of the Secretary or his duly
authorized representative is required in the following matters:

xxxx

(g) Method of disposal of sludge from septic tanks or other treatment plants.

31
Sec. 5.1.1.a. It shall be unlawful for any person, entity or firm to discharge untreated effluent
of septic tanks and/or sewage treatment plants to bodies of water without obtaining approval
from the Secretary of Health or his duly authorized representatives.

32
Sec. 53. Environmental Education.––The [DepEd] shall integrate subjects on environmental
education in its school curricula at all levels. It shall also endeavor to conduct special
community education emphasizing the relationship of man and nature as well as
environmental sanitation and practices.

33
Sec. 56. Environmental Education in the Formal and Nonformal Sectors.––The national
government, through the [DepEd] and in coordination with concerned government agencies,
NGOs and private institutions, shall strengthen the integration of environmental concerns in
school curricula at all levels, with particular emphasis on the theory and practice of waste
management principles like waste minimization, specifically resource conservation and
recovery, segregation at source, reduction, recycling, re-use, and composing, in order to
promote environmental awareness and action among the citizenry.

34
Title XVII, Sec. 1. Declaration of Policy.––The national budget shall be formulated and
implemented as an instrument of national development, reflective of national objectives and
plans; supportive of and consistent with the socio-economic development plans and oriented
towards the achievement of explicit objectives and expected results, to ensure that the
utilization of funds and operations of government entities are conducted effectively;
formulated within the context of a regionalized governmental structure and within the totality
of revenues and other receipts, expenditures and borrowings of all levels of government and of
government-owned or controlled corporations; and prepared within the context of the
national long-term plans and budget programs of the Government.

42
Sec. 25. National Supervision over Local Government Units.––(a) Consistent with the basic
policy on local autonomy, the President shall exercise general supervision over local
government units to ensure that their acts are within the scope of their prescribed powers and
functions.

43
Sec. 8. Domestic Sewage Collection, Treatment and Disposal.––Within five (5) years
following the effectivity of this Act, the Agency vested to provide water supply and sewerage
facilities and/or concessionaires in Metro Manila and other highly urbanized cities (HUCs) as
defined in [RA] 7160, in coordination with LGUs, shall be required to connect the existing
sewage line found in all subdivisions, condominiums, commercial centers, hotels, sports and
recreational facilities, hospitals, market places, public buildings, industrial complex and other
similar establishments including households to available sewerage system. Provided, That the
said connection shall be subject to sewerage services charge/fees in accordance with existing
laws, rules or regulations unless the sources had already utilized their own sewerage system:
Provided, further, That all sources of sewage and septage shall comply with the requirements
herein.

45
Sec. 65. Functions of the Bureau of Fisheries and Aquatic Resources.––As a line bureau, the
BFAR shall have the following functions:

xxxx

q. assist the LGUs in developing their technical capability in the development,

management, regulation, conservation, and protection of fishery resources;

xxxx

s. perform such other related function which shall promote the development,
conservation, management, protection and utilization of fisheries and aquatic
resources.

47
Among the prohibited and penalized acts under Sec. 48 of RA 9003 are: (1) littering and
dumping of waste matters in public places; (2) open burning of solid wastes; (3) squatting in
open dumps and landfills; (4) transporting and dumping in bulk of collected domestic,
industrial, commercial and institutional wastes in areas other than centers and facilities
prescribed under the Act; (5) construction or operation of waste management facilities
without an Environmental Compliance Certificate; and (6) construction or operation of landfills
or any waste disposal facility on any aquifer, groundwater reservoir or watershed area.
Miners Assoc vs. Factoran, G.R. No. 98332, Jan 16, 1995

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 98332 January 16, 1995

MINERS ASSOCIATION OF THE PHILIPPINES, INC., petitioner,

vs.
HON. FULGENCIO S. FACTORAN, JR., Secretary of Environment and Natural Resources, and JOEL D.
MUYCO, Director of Mines and Geosciences Bureau, respondents.

ROMERO, J.:

The instant petition seeks a ruling from this Court on the validity of two Administrative Orders issued by
the Secretary of the Department of Environment and Natural Resources to carry out the provisions of
certain Executive Orders promulgated by the President in the lawful exercise of legislative powers.

Herein controversy was precipitated by the change introduced by Article XII, Section 2 of the 1987
Constitution on the system of exploration, development and utilization of the country's natural resources.
No longer is the utilization of inalienable lands of public domain through "license, concession or lease"
under the 1935 and 1973 Constitutions1allowed under the 1987 Constitution.

The adoption of the concept of jura regalia2 that all natural resources are owned by the State embodied in
the 1935, 1973 and 1987 Constitutions, 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,3 ushered in the adoption of the constitutional policy of "full control and supervision by the State"
in the exploration, development and utilization of the country's natural resources. The options open to
the State are through direct undertaking or by entering into co-production, joint venture; or production-
sharing agreements, or by entering into agreement with foreign-owned corporations for large-scale
exploration, development and utilization.

Article XII, Section 2 of the 1987 Constitution provides:

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 product-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.

xxx xxx xxx

The President may enter into agreements with foreign-owned corporations involving
either technical or financial assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils according to the general
terms and conditions provided by law, based on real contributions to the economic
growth and general welfare of the country. In such agreements, the State shall
promote the development and use of local scientific and technical resources.

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

Pursuant to the mandate of the above-quoted provision, legislative acts4 were successively issued by the
President in the exercise of her legislative
power.5

To implement said legislative acts, the Secretary of the Department of Environment and Natural
Resources (DENR) in turn promulgated Administrative Order Nos. 57 and 82, the validity and
constitutionality of which are being challenged in this petition.

On July 10, 1987, President Corazon C. Aquino, in the exercise of her then legislative powers under Article
II, Section 1 of the Provisional Constitution and Article XIII, Section 6 of the 1987 Constitution,
promulgated Executive Order No. 211 prescribing the interim procedures in the processing and approval
of applications for the exploration, development and utilization of minerals pursuant to the 1987
Constitution in order to ensure the continuity of mining operations and activities and to hasten the
development of mineral resources. The pertinent provisions read as follows:

Sec. 1. Existing mining permits, licenses, leases and other mining grants issued by
the Department of Environment and Natural Resources and Bureau of Mines and
Geo-Sciences, including existing operating agreements and mining service
contracts, shall continue and remain in full force and effect, subject to the same
terms and conditions as originally granted and/or approved.

Sec. 2. Applications for the exploration, development and utilization of mineral

resources, including renewal applications for approval of operating agreements and
mining service contracts, shall be accepted and processed and may be approved;
concomitantly thereto, declarations of locations and all other kinds of mining
applications shall be accepted and registered by the Bureau of Mines and Geo-
Sciences.

Sec. 3. The processing, evaluation and approval of all mining applications,

declarations of locations, operating agreements and service contracts as provided
for in Section 2 above, shall be governed by Presidential Decree No. 463, as
amended, other existing mining laws and their implementing rules and
 regulations: Provided, however, that the privileges granted, as well as the terms and
conditions thereof shall be subject to any and all modifications or alterations which
Congress may adopt pursuant to Section 2, Article XII of the 1987 Constitution.

On July 25, 1987, President Aquino likewise promulgated Executive Order No. 279 authorizing the DENR
Secretary to negotiate and conclude joint venture, co-production, or production-sharing agreements for
the exploration, development and utilization of mineral resources, and prescribing the guidelines for such
agreements and those agreements involving technical or financial assistance by foreign-owned
corporations for large-scale exploration, development, and utilization of minerals. The pertinent
provisions relevant to this petition are as follows:

Sec. 1. The Secretary of the Department of Environment and Natural Resources

(hereinafter referred to as "the Secretary") is hereby authorized to negotiate and
enter into, for and in behalf of the Government, joint venture, co-production, or
production-sharing agreements for the exploration, development, and utilization of
mineral resources with any Filipino citizens, or corporation or association at least
sixty percent (60%) of whose capital is owned by Filipino citizens. Such joint
venture, co-production, or production-sharing agreements may be for a period not
exceeding twenty-five years, renewable for not more than twenty-five years, and
shall include the minimum terms and conditions prescribed in Section 2 hereof. In
the execution of a joint venture, co-production or production agreements, the
contracting parties, including the Government, may consolidate two or more
contiguous or geologically — related mining claims or leases and consider them as
one contract area for purposes of determining the subject of the joint venture, co-
production, or production-sharing agreement.

xxx xxx xxx

Sec. 6. The Secretary shall promulgate such supplementary rules and regulations as
may be necessary to effectively implement the provisions of this Executive Order.

Sec. 7. All provisions of Presidential Decree No. 463, as amended, other existing
mining laws, and their implementing rules and regulations, or parts thereof, which
are not inconsistent with the provisions of this Executive Order, shall continue in
force and effect.

Pursuant to Section 6 of Executive Order No. 279, the DENR Secretary issued on June 23, 1989 DENR
Administrative Order No. 57, series of 1989, captioned "Guidelines of Mineral Production Sharing
Agreement under Executive Order No. 279."6 Under the transitory provision of said DENR Administrative
Order No. 57, embodied in its Article 9, all existing mining leases or agreements which were granted after
the effectivity of the 1987 Constitution pursuant to Executive Order No. 211, except small scale mining
leases and those pertaining to sand and gravel and quarry resources covering an area of twenty (20)
hectares or less, shall be converted into production-sharing agreements within one (1) year from the
effectivity of these guidelines.

On November 20, 1980, the Secretary of the DENR Administrative Order No. 82, series of 1990, laying
down the "Procedural Guidelines on the Award of Mineral Production Sharing Agreement (MPSA) through
Negotiation."7

Section 3 of the aforementioned DENR Administrative Order No. 82 enumerates the persons or entities
required to submit Letter of Intent (LOIs) and Mineral Production Sharing Agreement (MPSAs) within two
(2) years from the effectivity of DENR Administrative Order No. 57 or until July 17, 1991. Failure to do so
within the prescribed period shall cause the abandonment of mining, quarry and sand and gravel claims.
Section 3 of DENR Administrative Order No. 82 provides:

Sec. 3. Submission of Letter of Intent (LOIs) and MPSAs). The following shall submit
their LOIs and MPSAs within two (2) years from the effectivity of DENR A.O. 57 or
until July 17, 1991.

i. Declaration of Location (DOL) holders, mining lease applicants, exploration

permitees, quarry applicants and other mining applicants whose mining/quarry
applications have not been perfected prior to the effectivity of DENR Administrative
Order No. 57.

ii. All holders of DOL acquired after the effectivity of DENR A.O. No. 57.

iii. Holders of mining leases or similar agreements which were granted after (the)
effectivity of 1987 Constitution.

Failure to submit letters of intent and MPSA applications/proposals within the

prescribed period shall cause the abandonment of mining, quarry and sand and
gravel claims.

The issuance and the impeding implementation by the DENR of Administrative Order Nos. 57 and 82 after
their respective effectivity dates compelled the Miners Association of the Philippines, Inc.8 to file the
instant petition assailing their validity and constitutionality before this Court.

In this petition for certiorari, petitioner Miners Association of the Philippines, Inc. mainly contends that
respondent Secretary of DENR issued both Administrative Order Nos. 57 and 82 in excess of his rule-
making power under Section 6 of Executive Order No. 279. On the assumption that the questioned
administrative orders do not conform with Executive Order Nos. 211 and 279, petitioner contends that
both orders violate the
non-impairment of contract provision under Article III, Section 10 of the 1987 Constitution on the ground
that Administrative Order No. 57 unduly pre-terminates existing mining agreements and automatically
converts them into production-sharing agreements within one (1) year from its effectivity date. On the
other hand, Administrative Order No. 82 declares that failure to submit Letters of Intent and Mineral
Production-Sharing Agreements within two (2) years from the date of effectivity of said guideline or on
July 17, 1991 shall cause the abandonment of their mining, quarry and sand gravel permits.

On July 2, 1991, the Court, acting on petitioner's urgent ex-parte petition for issuance of a restraining
order/preliminary injunction, issued a Temporary Restraining Order, upon posting of a P500,000.00 bond,
enjoining the enforcement and implementation of DENR Administrative Order Nos. 57 and 82, as
amended, Series of 1989 and 1990, respectively.9

On November 13, 1991, Continental Marble Corporation, 10 thru its President, Felipe A. David, sought to
intervene 11in this case alleging that because of the temporary order issued by the Court , the DENR,
Regional Office No. 3 in San Fernando, Pampanga refused to renew its Mines Temporary Permit after it
expired on July 31, 1991. Claiming that its rights and interests are prejudicially affected by the
implementation of DENR Administrative Order Nos. 57 and 82, it joined petitioner herein in seeking to
annul Administrative Order Nos. 57 and 82 and prayed that the DENR, Regional Office No. 3 be ordered to
issue a Mines Temporary Permit in its favor to enable it to operate during the pendency of the suit.
Public respondents were acquired to comment on the Continental Marble Corporation's petition for
intervention in the resolution of November 28, 1991.12

Now to the main petition. If its argued that Administrative Order Nos. 57 and 82 have the effect of
repealing or abrogating existing mining laws 13 which are not inconsistent with the provisions of Executive
Order No. 279. Invoking Section 7 of said Executive Order No. 279, 14 petitioner maintains that respondent
DENR Secretary cannot provide guidelines such as Administrative Order Nos. 57 and 82 which are
inconsistent with the provisions of Executive Order No. 279 because both Executive Order Nos. 211 and
279 merely reiterated the acceptance and registration of declarations of location and all other kinds of
mining applications by the Bureau of Mines and Geo-Sciences under the provisions of Presidential Decree
No. 463, as amended, until Congress opts to modify or alter the same.

In other words, petitioner would have us rule that DENR Administrative Order Nos. 57 and 82 issued by
the DENR Secretary in the exercise of his rule-making power are tainted with invalidity inasmuch as both
contravene or subvert the provisions of Executive Order Nos. 211 and 279 or embrace matters not
covered, nor intended to be covered, by the aforesaid laws.

We disagree.

We reiterate the principle that the power of administrative officials to promulgate rules and regulations in
the implementation of a statute is necessarily limited only to carrying into effect what is provided in the
legislative enactment. The principle was enunciated as early as 1908 in the case of United States v.
Barrias. 15 The scope of the exercise of such rule-making power was clearly expressed in the case of United
States v. Tupasi Molina, 16decided in 1914, thus: "Of course, the regulations adopted under legislative
authority by a particular department must be in harmony with the provisions of the law, and for the sole
purpose of carrying into effect its general provisions. By such regulations, of course, the law itself can not
be extended. So long, however, as the regulations relate solely to carrying into effect its general
provisions. By such regulations, of course, the law itself can not be extended. So long, however, as the
regulations relate solely to carrying into effect the provision of the law, they are valid."

Recently, the case of People v. Maceren 17 gave a brief delienation of the scope of said power of
administrative officials:

Administrative regulations adopted under legislative authority by a particular

department must be in harmony with the provisions of the law, and should be for
the sole purpose of carrying into effect its general provision. By such regulations, of
course, the law itself cannot be extended (U.S. v. Tupasi Molina, supra). An
administrative agency cannot amend an act of Congress (Santos vs. Estenzo, 109
Phil. 419, 422; Teoxon vs. Members of the Board of Administrators, L-25619, June
30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29,
1971, 42 SCRA 660; Deluao v. Casteel, L-21906, August 29, 1969, 29 SCRA 350).

The rule-making power must be confined to details for regulating the mode or
proceeding to carry into effect the law as it has been enacted. The power cannot be
extended to amending or expanding the statutory requirements or to embrace
matters not covered by the statute. Rules that subvert the statute cannot be
sanctioned (University of Santo Tomas v. Board of Tax Appeals, 93 Phil. 376, 382,
citing 12 C.J. 845-46. As to invalid regulations, see Collector of Internal Revenue v.
Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v. Phil.
Veterans Administration, L-27299, June 27, 1973, 51 SCRA 340, 349).
 xxx xxx xxx

. . . The rule or regulation should be within the scope of the statutory authority
granted by the legislature to the administrative agency (Davis, Administrative Law,
p. 194, 197, cited in Victorias Milling Co., Inc. v. Social Security Commission, 114
Phil. 555, 558).

In case of discrepancy between the basic law and a rule or regulation issued to
implement said law, the basic prevails because said rule or regulations cannot go
beyond the terms and provisions of the basic law (People v. Lim, 108 Phil. 1091).

Considering that administrative rules draw life from the statute which they seek to implement, it is
obvious that the spring cannot rise higher than its source. We now examine petitioner's argument that
DENR Administrative Order Nos. 57 and 82 contravene Executive Order Nos. 211 and 279 as both operate
to repeal or abrogate Presidential Decree No. 463, as amended, and other mining laws allegedly
acknowledged as the principal law under Executive Order Nos. 211 and 279.

Petitioner's insistence on the application of Presidential Decree No. 463, as amended, as the governing
law on the acceptance and approval of declarations of location and all other kinds of applications for the
exploration, development, and utilization of mineral resources pursuant to Executive Order No. 211, is
erroneous. Presidential Decree No. 463, as amended, pertains to the old system of exploration,
development and utilization of natural resources through "license, concession or lease" which, however,
has been disallowed by Article XII, Section 2 of the 1987 Constitution. By virtue of the said constitutional
mandate and its implementing law, Executive Order No. 279 which superseded Executive Order No. 211,
the provisions dealing on "license, concession or lease" of mineral resources under Presidential Decree
No. 463, as amended, and other existing mining laws are deemed repealed and, therefore, ceased to
operate as the governing law. In other words, in all other areas of administration and management of
mineral lands, the provisions of Presidential Decree No. 463, as amended, and other existing mining laws,
still govern. Section 7 of Executive Order No. 279 provides, thus:

Sec. 7. All provisions of Presidential Decree No. 463, as amended, other existing
mining laws, and their implementing rules and regulations, or parts thereof, which
are not inconsistent with the provisions of this Executive Order, shall continue in
force and effect.

Specifically, the provisions of Presidential Decree No. 463, as amended, on lease of mining claims under
Chapter VIII, quarry permits on privately-owned lands of quarry license on public lands under Chapter XIII
and other related provisions on lease, license and permits are not only inconsistent with the raison
d'etre for which Executive Order No. 279 was passed, but contravene the express mandate of Article XII,
Section 2 of the 1987 Constitution. It force and effectivity is thus foreclosed.

Upon the effectivity of the 1987 Constitution on February 2, 1987, 18 the State assumed a more dynamic
role in the exploration, development and utilization of the natural resources of the country. Article XII,
Section 2 of the said Charter explicitly ordains that the exploration, development and utilization of natural
resources shall be under the full control and supervision of the State. Consonant therewith, the
exploration, development and utilization of natural resources may be undertaken by means of direct act
of the State, or it may opt to enter into co-production, joint venture, or production-sharing agreements,
or it 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.
Given these considerations, there is no clear showing that respondent DENR Secretary has transcended
the bounds demarcated by Executive Order No. 279 for the exercise of his rule-making power tantamount
to a grave abuse of discretion. Section 6 of Executive Order No. 279 specifically authorizes said official to
promulgate such supplementary rules and regulations as may be necessary to effectively implement the
provisions thereof. Moreover, the subject sought to be governed and regulated by the questioned orders
is germane to the objects and purposes of Executive Order No. 279 specifically issued to carry out the
mandate of Article XII, Section 2 of the 1987 Constitution.

Petitioner likewise maintains that Administrative Order No. 57, in relation to Administrative Order No. 82,
impairs vested rights as to violate the non-impairment of contract doctrine guaranteed under Article III,
Section 10 of the 1987 Constitution because Article 9 of Administrative Order No. 57 unduly pre-
terminates and automatically converts mining leases and other mining agreements into production-
sharing agreements within one (1) year from effectivity of said guideline, while Section 3 of Administrative
Order No. 82, declares that failure to submit Letters of Intent (LOIs) and MPSAs within two (2) years from
the effectivity of Administrative Order No. 57 or until July 17, 1991 shall cause the abandonment of
mining, quarry, and sand gravel permits.

In Support of the above contention, it is argued by petitioner that Executive Order No. 279 does not
contemplate automatic conversion of mining lease agreements into mining production-sharing agreement
as provided under Article 9, Administrative Order No. 57 and/or the consequent abandonment of mining
claims for failure to submit LOIs and MPSAs under Section 3, Administrative Order No. 82 because Section
1 of said Executive Order No. 279 empowers the DENR Secretary to negotiate and enter into voluntary
agreements which must set forth the minimum terms and conditions provided under Section 2 thereof.
Moreover, petitioner contends that the power to regulate and enter into mining agreements does not
include the power to preterminate existing mining lease agreements.

To begin with, we dispel the impression created by petitioner's argument that the questioned
administrative orders unduly preterminate existing mining leases in general. A distinction which spells a
real difference must be drawn. Article XII, Section 2 of the 1987 Constitution does not apply retroactively
to "license, concession or lease" granted by the government under the 1973 Constitution or before the
effectivity of the 1987 Constitution on February 2, 1987. The intent to apply prospectively said
constitutional provision was stressed during the deliberations in the Constitutional Commission, 19 thus:

MR. DAVIDE: Under the proposal, I notice that except for the
[inalienable] lands of the public domain, all other natural
resources cannot be alienated and in respect to [alienable]
lands of the public domain, private corporations with the
required ownership by Filipino citizens can only lease the
same. Necessarily, insofar as other natural resources are
concerned, it would only be the State which can exploit,
develop, explore and utilize the same. However, the State
may enter into a joint venture, co-production or production-
sharing. Is that not correct?

MR. VILLEGAS: Yes.

MR. DAVIDE: Consequently, henceforth upon, the approval of

this Constitution, no timber or forest concession, permits or
authorization can be exclusively granted to any citizen of the
Philippines nor to any corporation qualified to acquire lands
of the public domain?
 MR. VILLEGAS: Would Commissioner Monsod like to
comment on that? I think his answer is "yes."

MR. DAVIDE: So, what will happen now license or concessions

earlier granted by the Philippine government to private
corporations or to Filipino citizens? Would they be deemed
repealed?

MR. VILLEGAS: This is not applied retroactively. They will be

respected.

MR. DAVIDE: In effect, they will be deemed repealed?

MR. VILLEGAS: No. (Emphasis supplied)

During the transition period or after the effectivity of the 1987 Constitution on February 2, 1987 until the
first Congress under said Constitution was convened on July 27, 1987, two (2) successive laws, Executive
Order Nos. 211 and 279, were promulgated to govern the processing and approval of applications for the
exploration, development and utilization of minerals. To carry out the purposes of said laws, the
questioned Administrative Order Nos. 57 and 82, now being assailed, were issued by the DENR Secretary.

Article 9 of Administrative Order No. 57 provides:

ARTICLE 9

TRANSITORY PROVISION

9.1. All existing mining leases or agreements which were granted after the
effectivity of the 1987 Constitution pursuant to Executive Order No. 211, except
small scale mining leases and those pertaining to sand and gravel and quarry
resources covering an area of twenty (20) hectares or less shall be subject to these
guidelines. All such leases or agreements shall be converted into production sharing
agreement within one (1) year from the effectivity of these guidelines. However,
any minimum firm which has established mining rights under Presidential Decree
463 or other laws may avail of the provisions of EO 279 by following the procedures
set down in this document.

It is clear from the aforestated provision that Administrative Order No. 57 applies only to all existing
mining leases or agreements which were granted after the effectivity of the 1987 Constitution pursuant to
Executive Order No. 211. It bears mention that under the text of Executive Order No. 211, there is a
reservation clause which provides that the privileges as well as the terms and conditions of all existing
mining leases or agreements granted after the effectivity of the 1987 Constitution pursuant to Executive
Order No. 211, shall be subject to any and all modifications or alterations which Congress may adopt
pursuant to Article XII, Section 2 of the 1987 Constitution. Hence, the strictures of the
non-impairment of contract clause under Article III, Section 10 of the 1987 Constitution 20 do not apply to
the aforesaid leases or agreements granted after the effectivity of the 1987 Constitution, pursuant to
Executive Order No. 211. They can be amended, modified or altered by a statute passed by Congress to
achieve the purposes of Article XII, Section 2 of the 1987 Constitution.
Clearly, Executive Order No. 279 issued on July 25, 1987 by President Corazon C. Aquino in the exercise of
her legislative power has the force and effect of a statute or law passed by Congress. As such, it validly
modified or altered the privileges granted, as well as the terms and conditions of mining leases and
agreements under Executive Order No. 211 after the effectivity of the 1987 Constitution by authorizing
the DENR Secretary to negotiate and conclude joint venture, co-production, or production-sharing
agreements for the exploration, development and utilization of mineral resources and prescribing the
guidelines for such agreements and those agreements involving technical or financial assistance by
foreign-owned corporations for large-scale exploration, development, and utilization of minerals.

Well -settled is the rule, however, that regardless of the reservation clause, mining leases or agreements
granted by the State, such as those granted pursuant to Executive Order No. 211 referred to this petition,
are subject to alterations through a reasonable exercise of the police power of the State. In the 1950 case
of Ongsiako v. Gamboa, 21 where the constitutionality of Republic Act No. 34 changing the 50-50
sharecropping system in existing agricultural tenancy contracts to 55-45 in favor of tenants was
challenged, the Court, upholding the constitutionality of the law, emphasized the superiority of the police
power of the State over the sanctity of this contract:

The prohibition contained in constitutional provisions against: impairing the obligation of contracts is not
an absolute one and it is not to be read with literal exactness like a mathematical formula. Such provisions
are restricted to contracts which respect property, or some object or value, and confer rights which may
be asserted in a court of justice, and have no application to statute relating to public subjects within the
domain of the general legislative powers of the State, and involving the public rights and public welfare of
the entire community affected by it. They do not prevent a proper exercise by the State of its police
powers. By enacting regulations reasonably necessary to secure the health, safety, morals, comfort, or
general welfare of the community, even the contracts may thereby be affected; for such matter can not
be placed by contract beyond the power of the State shall regulates and control them. 22

In Ramas v. CAR and Ramos 23 where the constitutionality of Section 14 of Republic Act No. 1199
authorizing the tenants to charge from share to leasehold tenancy was challenged on the ground that it
impairs the obligation of contracts, the Court ruled that obligations of contracts must yield to a proper
exercise of the police power when such power is exercised to preserve the security of the State and the
means adopted are reasonably adapted to the accomplishment of that end and are, therefore, not
arbitrary or oppressive.

The economic policy on the exploration, development and utilization of the country's natural resources
under Article XII, Section 2 of the 1987 Constitution could not be any clearer. As enunciated in Article XII,
Section 1 of the 1987 Constitution, the exploration, development and utilization of natural resources
under the new system mandated in Section 2, is geared towards a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by
the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of
life for all, especially the underprivileged.

The exploration, development and utilization of the country's natural resources are matters vital to the
public interest and the general welfare of the people. The recognition of the importance of the country's
natural resources was expressed as early as the 1984 Constitutional Convention. In connection therewith,
the 1986 U.P. Constitution Project observed: "The 1984 Constitutional Convention recognized the
importance of our natural resources not only for its security and national defense. Our natural resources
which constitute the exclusive heritage of the Filipino nation, should be preserved for those under the
sovereign authority of that nation and for their prosperity. This will ensure the country's survival as a
viable and sovereign republic."
Accordingly, the State, in the exercise of its police power in this regard, may not be precluded by the
constitutional restriction on non-impairment of contract from altering, modifying and amending the
mining leases or agreements granted under Presidential Decree No. 463, as amended, pursuant to
Executive Order No. 211. Police Power, being co-extensive with the necessities of the case and the
demands of public interest; extends to all the vital public needs. The passage of Executive Order No. 279
which superseded Executive Order No. 211 provided legal basis for the DENR Secretary to carry into effect
the mandate of Article XII, Section 2 of the 1987 Constitution.

Nowhere in Administrative Order No. 57 is there any provision which would lead us to conclude that the
questioned order authorizes the automatic conversion of mining leases and agreements granted after the
effectivity of the 1987 Constitution, pursuant to Executive Order No. 211, to production-sharing
agreements. The provision in Article 9 of Administrative Order No. 57 that "all such leases or agreements
shall be converted into production sharing agreements within one (1) year from the effectivity of these
guidelines" could not possibility contemplate a unilateral declaration on the part of the Government that
all existing mining leases and agreements are automatically converted into
production-sharing agreements. On the contrary, the use of the term "production-sharing agreement" if
they are so minded. Negotiation negates compulsion or automatic conversion as suggested by petitioner
in the instant petition. A mineral production-sharing agreement (MPSA) requires a meeting of the minds
of the parties after negotiations arrived at in good faith and in accordance with the procedure laid down
in the subsequent Administrative Order No. 82.

We, therefore, rule that the questioned administrative orders are reasonably directed to the
accomplishment of the purposes of the law under which they were issued and were intended to secure
the paramount interest of the public, their economic growth and welfare. The validity and
constitutionality of Administrative Order Nos. 57 and 82 must be sustained, and their force and effect
upheld.

We now, proceed to the petition-in-intervention. Under Section 2, Rule 12 of the Revised Rules of Court,
an intervention in a case is proper when the intervenor has a "legal interest in the matter in litigation, or
in the success of either of the parties, or an interest against both, or when he is so situated as to be
adversely affected by a distribution or other disposition of property in the custody of the court or of an
officer thereof. "Continental Marble Corporation has not sufficiently shown that it falls under any of the
categories mentioned above. The refusal of the DENR, Regional Office No. 3, San Fernando, Pampanga to
renew its Mines Temporary Permit does not justify such an intervention by Continental Marble
Corporation for the purpose of obtaining a directive from this Court for the issuance of said permit.
Whether or not Continental Marble matter best addressed to the appropriate government body but
certainly, not through this Court. Intervention is hereby DENIED.

WHEREFORE, the petition is DISMISSED for lack of merit. The Temporary Restraining Order issued on July
2, 1991 is hereby LIFTED.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug,
Kapunan and Mendoza, JJ., concur.

Footnotes

1 Article XIII, Section 1 of the 1935 Constitution provides:

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 corporation or associations at least sixty per centum of the capital
of which is owned by such citizens, subject to any existing right, grant, lease or
concession at the time of the inauguration of the Government established under
this Constitution. Natural resources, with the exception of public agricultural land,
shall not be alienated, and no license, concession, or lease for the exploitation,
development, or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for another twenty-five years,
except as to water rights for irrigation, water supply, fisheries, or industrial uses
other than the development of water power, in which cases beneficial use may be
the measure and the limit of the grant.

xxx xxx xxx

Article XIV, Section 8 of the 1973 Constitution provides:

Section 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.

8 A non-stock and non-profit organization duly formed and existing under and by
virtue of the laws of the Philippines with principal office at Suite 609 Don Santiago
Building whose members include mining prospectors and claimowners or
claimholders.

10 A domestic corporation engaged in the business of marble mining with factory

processing plant at 24 General Luis St., Novaliches, Quezon City. It has filed a
Declaration of Location dated November 13, 1973 for a placer mine known as
"MARGEL" located at Matitic, Norzagaray, Bulacan. It has been operating as a
mining entity and exporting its finished products (marble tiles) by virtue of a Mines
Temporary Permit issued by the DENR.

14 Section 7, Executive Order No. 279 provides:

All provisions of Presidential Decree No. 463, as amended, other existing mining
laws, and their implementing rules and regulations, or parts thereof, which are not
inconsistent with the provisions of this Executive Order, shall continue in force and
effect.
PICOP vs Base Metal Mining, G.R. No. 163509, Dec 6, 2006

THIRD DIVISION

G.R. No. 163509 December 6, 2006

PICOP RESOURCES, INC., petitioner,

vs.
BASE METALS MINERAL RESOURCES CORPORATION, and THE MINES ADJUDICATION
BOARD,respondents.

DECISION

TINGA, J.:

PICOP Resources, Inc. (PICOP) assails the Decision1 of the Court of Appeals dated November 28, 2003 and
its Resolution2 dated May 5, 2004, which respectively denied its petition for review and motion for
reconsideration.

The undisputed facts quoted from the appellate court's Decision are as follows:

In 1987, the Central Mindanao Mining and Development Corporation (CMMCI for brevity)
entered into a Mines Operating Agreement (Agreement for brevity) with Banahaw Mining and
Development Corporation (Banahaw Mining for brevity) whereby the latter agreed to act as
Mine Operator for the exploration, development, and eventual commercial operation of
CMMCI's eighteen (18) mining claims located in Agusan del Sur.

Pursuant to the terms of the Agreement, Banahaw Mining filed applications for Mining Lease
Contracts over the mining claims with the Bureau of Mines. On April 29, 1988, Banahaw Mining
was issued a Mines Temporary Permit authorizing it to extract and dispose of precious
minerals found within its mining claims. Upon its expiration, the temporary permit was
subsequently renewed thrice by the Bureau of Mines, the last being on June 28, 1991.

Since a portion of Banahaw Mining's mining claims was located in petitioner PICOP's logging
concession in Agusan del Sur, Banahaw Mining and petitioner PICOP entered into a
Memorandum of Agreement, whereby, in mutual recognition of each other's right to the area
concerned, petitioner PICOP allowed Banahaw Mining an access/right of way to its mining
claims.

In 1991, Banahaw Mining converted its mining claims to applications for Mineral Production
Sharing Agreements (MPSA for brevity).
While the MPSA were pending, Banahaw Mining, on December 18, 1996, decided to sell/assign
its rights and interests over thirty-seven (37) mining claims in favor of private respondent Base
Metals Mineral Resources Corporation (Base Metals for brevity). The transfer included mining
claims held by Banahaw Mining in its own right as claim owner, as well as those covered by its
mining operating agreement with CMMCI.

Upon being informed of the development, CMMCI, as claim owner, immediately approved the
assignment made by Banahaw Mining in favor of private respondent Base Metals, thereby
recognizing private respondent Base Metals as the new operator of its claims.

On March 10, 1997, private respondent Base Metals amended Banahaw Mining's pending
MPSA applications with the Bureau of Mines to substitute itself as applicant and to submit
additional documents in support of the application. Area clearances from the DENR Regional
Director and Superintendent of the Agusan Marsh and Wildlife Sanctuary were submitted, as
required.

On October 7, 1997, private respondent Base Metals' amended MPSA applications were
published in accordance with the requirements of the Mining Act of 1995.

On November 18, 1997, petitioner PICOP filed with the Mines Geo-Sciences Bureau (MGB),
Caraga Regional Office No. XIII an Adverse Claim and/or Opposition to private respondent Base
Metals' application on the following grounds:

I. THE APPROVAL OF THE APPLICATION AND ISSUANCE OF THE MPSA OF BASE

METALS WILL VIOLATE THE CONSTITUTIONAL MANDATE AGAINST IMPAIRMENT OF
OBLIGATION IN A CONTRACT.

II. THE APPROVAL OF THE APPLICATION WILL DEFEAT THE RIGHTS OF THE HEREIN
ADVERSE CLAIMANT AND/OR OPPOSITOR.

In its Answer to the Adverse Claim and/or Opposition, private respondent Base Metals alleged
that:

a) the Adverse Claim was filed out of time;

b) petitioner PICOP has no rights over the mineral resources on their concession
area. PICOP is asserting a privilege which is not protected by the non-impairment
clause of the Constitution;

c) the grant of the MPSA will not impair the rights of PICOP nor create confusion,
chaos or conflict.

Petitioner PICOP's Reply to the Answer alleged that:

a) the Adverse Claim was filed within the reglementary period;

b) the grant of MPSA will impair the existing rights of petitioner PICOP;
 c) the MOA between PICOP and Banahaw Mining provides for recognition by
Banahaw Mining of the Presidential Warranty awarded in favor of PICOP for the
exclusive possession and enjoyment of said areas.

As a Rejoinder, private respondent Base Metals stated that:

1. it is seeking the right to extract the mineral resources in the applied areas. It is
not applying for any right to the forest resources within the concession areas of
PICOP;

2. timber or forest lands are open to Mining Applications;

3. the grant of the MPSA will not violate the so called "presidential fiat";

4. the MPSA application of Base Metals does not require the consent of PICOP; and

5. it signified its willingness to enter into a voluntary agreement with PICOP on the
matter of compensation for damages. In the absence of such agreement, the
matter will be brought to the Panel of Arbitration in accordance with law.

In refutation thereto, petitioner PICOP alleged in its Rejoinder that:

a) the Adverse Claim filed thru registered mail was sent on time and as prescribed
by existing mining laws and rules and regulations;

b) the right sought by private respondent Base Metals is not absolute but is subject
to existing rights, such as those which the adverse claimant had, that have to be
recognized and respected in a manner provided and prescribed by existing laws as
will be expounded fully later;

c) as a general rule, mining applications within timber or forest lands are subject to
existing rights as provided in Section 18 of RA 7942 or the Philippine Mining Act of
1995 and it is an admitted fact by the private respondent that petitioner PICOP had
forest rights as per Presidential Warranty;

d) while the Presidential Warranty did not expressly state exclusivity, P.D. 705
strengthened the right of occupation, possession and control over the concession
area;

e) the provisions of Section 19 of the Act and Section 15 of IRR expressly require the
written consent of the forest right holder, PICOP.

After the submission of their respective position paper, the Panel Arbitrator issued an Order
dated December 21, 1998, the dispositive portion of which reads as:

WHEREFORE, premises considered, Mineral Production Sharing Agreement

Application Nos. (XIII) 010, 011, 012 of Base Metal Resources Corporation should be
set aside.
The disapproval of private respondent Base Metals' MPSA was due to the following reasons:

Anent the first issue the Panel find (sic) and so hold (sic) that the adverse claim was
filed on time, it being mailed on November 19, 1997, at Metro Manila as evidenced
by Registry Receipt No. 26714. Under the law (sic) the date of mailing is considered
the date of filing.

As to whether or not an MPSA application can be granted on area subject of an

IFMA3 or PTLA4 which is covered by a Presidential Warranty, the panel believes it
can not, unless the grantee consents thereto. Without the grantee's consent, the
area is considered closed to mining location (sec. 19) (b) (No. 2), DAO No. 96-40).
The Panel believe (sic) that mining location in forest or timberland is allowed only if
such forest or timberland is not leased by the government to a qualified person or
entity. If it is leased the consent of the lessor is necessary, in addition to the area
clearance to be issued by the agency concerned before it is subjected to mining
operation.

Plantation is considered closed to mining locations because it is off tangent to

mining. Both are extremes. They can not exist at the same time. The other must
necessarily stop before the other operate.

On the other hand, Base Metals Mineral Resources Corporation can not insist the
MPSA application as assignee of Banahaw. PICOP did not consent to the assignment
as embodied in the agreement. Neither did it ratify the Deed of Assignment.
Accordingly, it has no force and effect. Thus, for lack of consent, the MPSA must fall.

On January 11, 1999, private respondent Base Metals filed a Notice of Appeal with public
respondent MAB and alleged in its Appeal Memorandum the following arguments:

1. THE CONSENT OF PICOP IS NOT NECESSARY FOR THE APPROVAL OF BASE

METALS' MPSA APPLICATION.

2. EVEN ASSUMING SUCH CONSENT IS NECESSARY, PICOP HAD CONSENTED TO

BASE METALS' MPSA APPLICATION.

In Answer thereto, petitioner PICOP alleged that:

1. Consent is necessary for the approval of private respondent's MPSA application;

2. Provisions of Memorandum Order No. 98-03 and IFMA 35 are not applicable to
the instant case;

3. Provisions of PD 7055 connotes exclusivity for timber license holders; and

4. MOA between private respondent's assignor and adverse claimant provided for
the recognition of the latter's rightful claim over the disputed areas.

Private respondent Base Metals claimed in its Reply that:

 1. The withholding of consent by PICOP derogates the State's power to supervise
and control the exploration, utilization and development of all natural resources;

2. Memorandum Order No, 98-03, not being a statute but a mere guideline
imposed by the Secretary of the Department of Environment and Natural Resources
(DENR), can be applied retroactively to MPSA applications which have not yet been
finally resolved;

3. Even assuming that the consent of adverse claimant is necessary for the approval
of Base Metals' application (which is denied), such consent had already been given;
and

4. The Memorandum of Agreement between adverse claimant and Banahaw Mining

proves that the Agusan-Surigao area had been used in the past both for logging and
mining operations.

After the filing of petitioner PICOP's Reply Memorandum, public respondent rendered the
assailed decision setting aside the Panel Arbitrator's order. Accordingly, private respondent
Base Metals' MPSA's were reinstated and given due course subject to compliance with the
pertinent requirements of the existing rules and regulations.6

The Court of Appeals upheld the decision of the MAB, ruling that the Presidential Warranty of September
25, 1968 issued by then President Ferdinand E. Marcos merely confirmed the timber license granted to
PICOP and warranted the latter's peaceful and adequate possession and enjoyment of its concession
areas. It was only given upon the request of the Board of Investments to establish the boundaries of
PICOP's timber license agreement. The Presidential Warranty did not convert PICOP's timber license into a
contract because it did not create any obligation on the part of the government in favor of PICOP. Thus,
the non-impairment clause finds no application.

Neither did the Presidential Warranty grant PICOP the exclusive possession, occupation and exploration of
the concession areas covered. If that were so, the government would have effectively surrendered its
police power to control and supervise the exploration, development and utilization of the country's
natural resources.

On PICOP's contention that its consent is necessary for the grant of Base Metals' MPSA, the appellate
court ruled that the amendment to PTLA No. 47 refers to the grant of gratuitous permits, which the MPSA
subject of this case is not. Further, the amendment pertains to the cutting and extraction of timber for
mining purposes and not to the act of mining itself, the intention of the amendment being to protect the
timber found in PICOP's concession areas.

The Court of Appeals noted that the reinstatement of the MPSA does not ipso facto revoke, amend,
rescind or impair PICOP's timber license. Base Metals still has to comply with the requirements for the
grant of a mining permit. The fact, however, that Base Metals had already secured the necessary Area
Status and Clearance from the DENR means that the areas applied for are not closed to mining
operations.

In its Resolution7 dated May 5, 2004, the appellate court denied PICOP's Motion for Reconsideration. It
ruled that PICOP failed to substantiate its allegation that the area applied for is a forest reserve and is
therefore closed to mining operations because it did not identify the particular law which set aside the
contested area as one where mining is prohibited pursuant to applicable laws.
The case is now before us for review.

In its Memorandum8 dated April 6, 2005, PICOP presents the following issues: (1) the 2,756 hectares
subject of Base Metals' MPSA are closed to mining operations except upon PICOP's written consent
pursuant to existing laws, rules and regulations and by virtue of the Presidential Warranty; (2) its
Presidential Warranty is protected by the non-impairment clause of the Constitution; and (3) it does not
raise new issues in its petition.

PICOP asserts that its concession areas are closed to mining operations as these are within the Agusan-
Surigao-Davao forest reserve established under Proclamation No. 369 of then Gov. Gen. Dwight Davis.
The area is allegedly also part of permanent forest established under Republic Act No. 3092 (RA
3092),9 and overlaps the wilderness area where mining applications are expressly prohibited under RA
7586.10 Hence, the area is closed to mining operations under Sec. 19(f) of RA 7942.11

PICOP further asserts that to allow mining over a forest or forest reserve would allegedly be tantamount
to changing the classification of the land from forest to mineral land in violation of Sec. 4, Art. XII of the
Constitution and Sec. 1 of RA 3092.

According to PICOP, in 1962 and 1963, blocks A, B and C within the Agusan-Surigao-Davao forest reserve
under Proclamation No. 369 were surveyed as permanent forest blocks in accordance with RA 3092.
These areas cover PICOP's PTLA No. 47, part of which later became IFMA No. 35. In turn, the areas set
aside as wilderness as in PTLA No. 47 became the initial components of the NIPAS under Sec. 5(a) of RA
7586. When RA 7942 was signed into law, the areas covered by the NIPAS were expressly determined as
areas where mineral agreements or financial or technical assistance agreement applications shall not be
allowed. PICOP concludes that since there is no evidence that the permanent forest areas within PTLA No.
47 and IFMA No. 35 have been set aside for mining purposes, the MAB and the Court of Appeals gravely
erred in reinstating Base Metals' MPSA and, in effect, allowing mining exploration and mining-related
activities in the protected areas.

PICOP further argues that under DENR Administrative Order (DAO) No. 96-40 implementing RA 7942, an
exploration permit must be secured before mining operations in government reservations may be
undertaken. There being no exploration permit issued to Banahaw Mining or appended to its MPSA, the
MAB and the Court of Appeals should not have reinstated its application.

PICOP brings to the Court's attention the case of PICOP Resources, Inc. v. Hon. Heherson T.
Alvarez,12 wherein the Court of Appeals ruled that the Presidential Warranty issued to PICOP for its TLA
No. 43 dated July 29, 1969, a TLA distinct from PTLA No. 47 involved in this case, is a valid contract
involving mutual prestations on the part of the Government and PICOP.

The Presidential Warranty in this case is allegedly not a mere confirmation of PICOP's timber license but a
commitment on the part of the Government that in consideration of PICOP's investment in the wood-
processing business, the Government will assure the availability of the supply of raw materials at levels
adequate to meet projected utilization requirements. The guarantee that PICOP will have peaceful and
adequate possession and enjoyment of its concession areas is impaired by the reinstatement of Base
Metals' MPSA in that the latter's mining activities underneath the area in dispute will surely undermine
PICOP's supply of raw materials on the surface.

Base Metals' obtention of area status and clearance from the DENR is allegedly immaterial, even
misleading. The findings of the DENR Regional Disrector and the superintendent of the Agusan Marsh and
Wildlife Sanctuary are allegedly misplaced because the area applied for is not inside the Agusan Marsh
but in a permanent forest. Moreover, the remarks in the area status itself should have been considered by
the MAB and the appellate court as they point out that the application encroaches on surveyed
timberland projects declared as permanent forests/forest reserves.

Finally, PICOP insists that it has always maintained that the forest areas of PTLA No. 47 and IFMA No. 35
are closed to mining operations. The grounds relied upon in this petition are thus not new issues but
merely amplifications, clarifications and detailed expositions of the relevant constitutional provisions and
statutes regulating the use and preservation of forest reserves, permanent forest, and protected
wilderness areas given that the areas subject of the MPSA are within and overlap PICOP's PTLA No. 47 and
IFMA No. 35 which have been classified and blocked not only as permanent forest but also as protected
wilderness area forming an integral part of the Agusan-Davao-Surigao Forest Reserve.

In its undated Memorandum,13 Base Metals contends that PICOP never made any reference to land
classification or the exclusion of the contested area from exploration and mining activities except in the
motion for reconsideration it filed with the Court of Appeals. PICOP's object to the MPSA was allegedly
based exclusively on the ground that the application, if allowed to proceed, would constitute a violation of
the constitutional proscription against impairment of the obligation of contracts. It was upon this issue
that the appellate court hinged its Decision in favor of Base Metals, ruling that the Presidential Warranty
merely confirmed PICOP's timber license. The instant petition, which raises new issues and invokes RA
3092 and RA 7586, is an unwarranted departure from the settled rule that only issues raised in the
proceedings a quo may be elevated on appeal.

Base Metals notes that RA 7586 expressly requires that there be a prior presidential decree, presidential
proclamation, or executive order issued by the President of the Philippines, expressly proclaiming,
designating, and setting aside the wilderness area before the same may be considered part of the NIPAS
as a protected area. Allegedly, PICOP has not shown that such an express presidential proclamation exists
setting aside the subject area as a forest reserve, and excluding the same from the commerce of man.

PICOP also allegedly misquoted Sec. 19 of RA 7942 by placing a comma between the words "watershed"
and "forest" thereby giving an altogether different and misleading interpretation of the cited provision.
The cited provision, in fact, states that for an area to be closed to mining applications, the same must be a
watershed forest reserve duly identified and proclaimed by the President of the Philippines. In this case,
no presidential proclamation exists setting aside the contested area as such.

Moreover, the Memorandum of Agreement between Banahaw Mining and PICOP is allegedly a clear and
tacit recognition by the latter that the area is open and available for mining activities and that Banahaw
Mining has a right to enter and explore the areas covered by its mining claims.

Base Metals reiterates that the non-impairment clause is a limit on the exercise of legislative power and
not of judicial or quasi-judicial power. The Constitution prohibits the passage of a law which enlarges,
abridges or in any manner changes the intention of the contracting parties. The decision of the MAB and
the Court of Appeals are not legislative acts within the purview of the constitutional proscription. Besides,
the Presidential Warranty is not a contract that may be impaired by the reinstatement of the MPSA. It is a
mere confirmation of PICOP's timber license and draws its life from PTLA No. 47. Furthermore, PICOP fails
to show how the reinstatement of the MPSA will impair its timber license.

Following the regalian doctrine, Base Metals avers that the State may opt to enter into contractual
arrangements for the exploration, development, and extraction of minerals even it the same should mean
amending, revising, or even revoking PICOP's timber license. To require the State to secure PICOP's prior
consent before it can enter into such contracts allegedly constitutes an undue delegation of sovereign
power.
Base Metals further notes that Presidential Decree No. 705 (PD 705), under which PTLA No. 47, IFMA No.
35 and the Presidential Warranty were issued, requires notice to PICOP rather than consent before any
mining activity can be commenced in the latter's concession areas.

The Office of the Solicitor General (OSG) filed a Memorandum14 dated April 21, 2005 on behalf of the
MAB, contending that PICOP's attempt to raise new issues, such as its argument that the contested area is
classified as a permanent forest and hence, closed to mining activities, is offensive to due process and
should not be allowed.

The OSG argues that a timber license is not a contract within the purview of the due process and non-
impairment clauses. The Presidential Warranty merely guarantees PICOP's tenure over its concession area
and covers only the right to cut, collect and remove timber therein. It is a mere collateral undertaking and
cannot amplify PICOP's rights under its PTLA No. 47 and IFMA No. 35. To hold that the Presidential
Warranty is a contract separate from PICOP's timber license effectively gives the latter PICOP an exclusive,
perpetual and irrevocable right over its concession area and impairs the State's sovereign exercise of its
power over the exploration, development, and utilization of natural resources.

The case of PICOP Resources, Inc. v. Hon. Heherson T. Alvarez, supra, cited by PICOP cannot be relied upon
to buttress the latter's claim that a presidential warranty is a valid and subsisting contract between PICOP
and the Government because the decision of the appellate court in that case is still pending review before
the Court's Second Division.

The OSG further asserts that mining operations are legally permissible over PICOP's concession areas.
Allegedly, what is closed to mining applications under RA 7942 are areas proclaimed as watershed forest
reserves. The law does not totally prohibit mining operations over forest reserves. On the contrary, Sec.
18 of RA 7942 permits mining over forest lands subject to existing rights and reservations, and PD 705
allows mining over forest lands and forest reservations subject to State regulation and mining laws. Sec.
19(a) of RA 7942 also provides that mineral activities may be allowed even over military and other
government reservations as long as there is a prior written clearance by the government agency
concerned.

The area status clearances obtained by Base Metals also allegedly show that the area covered by the
MPSA is within timberland, unclassified public forest, and alienable and disposable land. Moreover, PICOP
allegedly chose to cite portions of Apex Mining Corporation v. Garcia,15 to make it appear that the Court
in that case ruled that mining is absolutely prohibited in the Agusan-Surigao-Davao Forest Reserve. In fact,
the Court held that the area is not open to mining location because the proper procedure is to file an
application for a permit to prospect with the Bureau of Forest and Development.

In addition, PICOP's claimed wilderness area has not been designated as a protected area that would
operate to bar mining operations therein. PICOP failed to prove that the alleged wilderness area has been
designated as an initial component of the NIPAS pursuant to a law, presidential decree, presidential
proclamation or executive order. Hence, it cannot correctly claim that the same falls within the coverage
of the restrictive provisions of RA 7586.

The OSG points out that the Administrative Code of 1917 which RA 3092 amended has been completely
repealed by the Administrative Code of 1978. Sec. 4, Art. XII of the 1987 Constitution, on the other hand,
provides that Congress shall determine the specific limits of forest lands and national parks, marking
clearly their boundaries on the ground. Once this is done, the area thus covered by said forest lands and
national parks may not be expanded or reduced except also by congressional legislation. Since Congress
has yet to enact a law determining the specific limits of the forest lands covered by Proclamation No. 369
and marking clearly its boundaries on the ground, there can be no occasion that could give rise to a
violation of the constitutional provision.
Moreover, Clauses 10 and 14 of PICOP's IFMA No. 35 specifically provides that the area covered by the
agreement is open for mining if public interest so requires. Likewise, PTLA No. 47 provides that the area
covered by the license agreement may be opened for mining purposes.

Finally, the OSG maintains that pursuant to the State's policy of multiple land use, R.A. No. 7942 provides
for appropriate measures for a harmonized utilization of the forest resources and compensation for
whatever damage done to the property of the surface owner or concessionaire as a consequence of
mining operations. Multiple land use is best demonstrated by the Memorandum of Agreement between
PICOP and Banahaw Mining.

First, the procedural question of whether PICOP is raising new issues in the instant petition. It is the
contention of the OSG and Base Metals that PICOP's argument that the area covered by the MPSA is
classified as permanent forest and therefore closed to mining activities was raised for the first time in
PICOP's motion for reconsideration with the Court of Appeals.

Our own perusal of the records of this case reveals that this is not entirely true.

In its Adverse Claim and/or Opposition16 dated November 19, 1997 filed with the MGB Panel of
Arbitrators, PICOP already raised the argument that the area applied for by Base Metals is classified as a
permanent forest determined to be needed for forest purposes pursuant to par. 6, Sec. 3 of PD 705, as
amended. PICOP then proceeded to claim that the area should remain forest land if the purpose of the
presidential fiat were to be followed. It stated:

Technically, the areas applied for by Base Metals are classified as a permanent forest being
land of the public domain determined to be needed for forest purposes (Paragraph 6, Section 3
of Presidential Decree No. 705, as amended) If these areas then are classified and determined
to be needed for forest purpose then they should be developed and should remain as forest
lands. Identifying, delineating and declaring them for other use or uses defeats the purpose of
the aforecited presidential fiats. Again, if these areas would be delineated from Oppositor's
forest concession, the forest therein would be destroyed and be lost beyond recovery.17

Base Metals met this argument head on in its Answer 18 dated December 1, 1997, in which it contended
that PD 705 does not exclude mining operations in forest lands but merely requires that there be proper
notice to the licensees of the area.

Again in its Petition19 dated January 25, 2003 assailing the reinstatement of Base Metals' MPSA, PICOP
argued that RA 7942 expressly prohibits mining operations in plantation areas such as PICOP's concession
area. Hence, it posited that the MGB Panel of Arbitrators did not commit grave abuse of discretion when
it ruled that without PICOP's consent, the area is closed to mining location.

It is true though that PICOP expounded on the applicability of RA 3092, RA 7586, and RA 7942 for the first
time in its motion for reconsideration of the appellate court's Decision. It was only in its motion for
reconsideration that PICOP argued that the area covered by PTLA No. 47 and IFMA No. 35 are permanent
forest lands covered by RA 7586 which cannot be entered for mining purposes, and shall remain
indefinitely as such for forest uses and cannot be excluded or diverted for other uses except after
reclassification through a law enacted by Congress.

Even so, we hold that that the so-called new issues raised by PICOP are well within the issues framed by
the parties in the proceedings a quo. Thus, they are not, strictly speaking, being raised for the first time on
appeal.20 Besides, Base Metals and the OSG have been given ample opportunity, by way of the pleadings
filed with this Court, to respond to PICOP's arguments. It is in the best interest of justice that we settle the
crucial question of whether the concession area in dispute is open to mining activities.

We should state at this juncture that the policy of multiple land use is enshrined in our laws towards the
end that the country's natural resources may be rationally explored, developed, utilized and conserved.
The Whereas clauses and declaration of policies of PD 705 state:

WHEREAS, proper classification, management and utilization of the lands of the public domain
to maximize their productivity to meet the demands of our increasing population is urgently
needed;

WHEREAS, to achieve the above purpose, it is necessary to reassess the multiple uses of forest
lands and resources before allowing any utilization thereof to optimize the benefits that can be
derived therefrom;

Sec. 2. Policies.—The State hereby adopts the following policies:

a) The multiple uses of forest lands shall be oriented to the development and
progress requirements of the country, the advancement of science and technology,
and the public welfare;

In like manner, RA 7942, recognizing the equiponderance between mining and timber rights, gives a
mining contractor the right to enter a timber concession and cut timber therein provided that the surface
owner or concessionaire shall be properly compensated for any damage done to the property as a
consequence of mining operations. The pertinent provisions on auxiliary mining rights state:

Sec. 72. Timber Rights.—Any provision of law to the contrary notwithstanding, a contractor
may be granted a right to cut trees or timber within his mining areas as may be necessary for
his mining operations subject to forestry laws, rules and regulations: Provided, That if the land
covered by the mining area is already covered by existing timber concessions, the volume of
timber needed and the manner of cutting and removal thereof shall be determined by the
mines regional director, upon consultation with the contractor, the timber
concessionair/permittee and the Forest Management Bureau of the Department: Provided,
further, That in case of disagreement between the contractor and the timber concessionaire,
the matter shall be submitted to the Secretary whose decision shall be final. The contractor
shall perform reforestation work within his mining area in accordance with forestry laws, rules
and regulations.

Sec. 76. Entry into Private Lands and Concession Areas.—Subject to prior notification, holders
of mining rights shall not be prevented from entry into private lands and concession areas by
surface owners, occupants, or concessionaires when conducting mining operations
therein: Provided, That any damage done to the property of the surface owner, occupant, or
concessionaire as a consequence of such operations shall be properly compensated as may be
provided for in the implementing rules and regulations: Provided, further, That to guarantee
such compensation, the person authorized to conduct mining operation shall, prior thereto,
post a bond with the regional director based on the type of properties, the prevailing prices in
 and around the area where the mining operations are to be conducted, with surety or sureties
satisfactory to the regional director.

With the foregoing predicates, we shall now proceed to analyze PICOP's averments.

PICOP contends that its concession area is within the Agusan-Surigao-Davao Forest Reserve established
under Proclamation No. 369 and is closed to mining application citing several paragraphs of Sec. 19 of RA
7942.

The cited provision states:

Sec. 19 Areas Closed to Mining Applications.—Mineral agreement or financial or technical

assistance agreement applications shall not be allowed:

(a) In military and other government reservations, except upon prior written clearance by the
government agency concerned;

(d) In areas expressly prohibited by law;

(f) Old growth or virgin forests, proclaimed watershed forest reserves, wilderness
areas, mangrove forests, mossy forests, national parks, provincial/municipal forests, parks,
greenbelts, game refuge and bird sanctuaries as defined by law in areas expressly prohibited
under the National Ingrated Protected Areas System (NIPAS) under Republic Act No. 7586,
Department Administrative Order No. 25, series of 1992 and other laws. [emphasis supplied]

We analyzed each of the categories under which PICOP claims that its concession area is closed to mining
activities and conclude that PICOP's contention must fail.

Firstly, assuming that the area covered by Base Metals' MPSA is a government reservation, defined as
proclaimed reserved lands for specific purposes other than mineral reservations, 21 such does not
necessarily preclude mining activities in the area. Sec. 15(b) of DAO 96-40 provides that government
reservations may be opened for mining applications upon prior written clearance by the government
agency having jurisdiction over such reservation.

Sec. 6 of RA 7942 also provides that mining operations in reserved lands other than mineral reservations
may be undertaken by the DENR, subject to certain limitations. It provides:

Sec. 6. Other Reservations.—Mining operations in reserved lands other than mineral

reservations may be undertaken by the Department, subject to limitations as herein provided.
In the event that the Department cannot undertake such activities, they may be undertaken by
a qualified person in accordance with the rules and regulations promulgated by the Secretary.
The right to develop and utilize the minerals found therein shall be awarded by the President
under such terms and conditions as recommended by the Director and approved by the
Secretary: Provided, That the party who undertook the exploration of said reservations shall be
given priority. The mineral land so awarded shall be automatically excluded from the
 reservation during the term of the agreement: Provided, further, That the right of the lessee of
a valid mining contract existing within the reservation at the time of its establishment shall not
be prejudiced or impaired.

Secondly, RA 7942 does not disallow mining applications in all forest reserves but only those proclaimed
aswatershed forest reserves. There is no evidence in this case that the area covered by Base Metals' MPSA
has been proclaimed as watershed forest reserves.

Even granting that the area covered by the MPSA is part of the Agusan-Davao-Surigao Forest Reserve,
such does not necessarily signify that the area is absolutely closed to mining activities. Contrary to PICOP's
obvious misreading of our decision in Apex Mining Co., Inc. v. Garcia, supra, to the effect that mineral
agreements are not allowed in the forest reserve established under Proclamation 369, the Court in that
case actually ruled that pursuant to PD 463 as amended by PD 1385, one can acquire mining rights within
forest reserves, such as the Agusan-Davao-Surigao Forest Reserve, by initially applying for a permit to
prospect with the Bureau of Forest and Development and subsequently for a permit to explore with the
Bureau of Mines and Geosciences.

Moreover, Sec. 18 RA 7942 allows mining even in timberland or forestty subject to existing rights and
reservations. It provides:

Sec. 18. Areas Open to Mining Operations.—Subject to any existing rights or reservations and
prior agreements of all parties, all mineral resources in public or private lands, including timber
or forestlands as defined in existing laws, shall be open to mineral agreements or financial or
technical assistance agreement applications. Any conflict that may arise under this provision
shall be heard and resolved by the panel of arbitrators.

Similarly, Sec. 47 of PD 705 permits mining operations in forest lands which include the public forest, the
permanent forest or forest reserves, and forest reservations.22 It states:

Sec. 47. Mining Operations.—Mining operations in forest lands shall be regulated and
conducted with due regard to protection, development and utilization of other surface
resources. Location, prospecting, exploration, utilization or exploitation of mineral resources in
forest reservations shall be governed by mining laws, rules and regulations. No location,
prospecting, exploration, utilization, or exploitation of mineral resources inside forest
concessions shall be allowed unless proper notice has been served upon the licensees thereof
and the prior approval of the Director, secured.

Significantly, the above-quoted provision does not require that the consent of existing licensees be
obtained but that they be notified before mining activities may be commenced inside forest concessions.

DENR Memorandum Order No. 03-98, which provides the guidelines in the issuance of area status and
clearance or consent for mining applications pursuant to RA 7942, provides that timber or forest lands,
military and other government reservations, forest reservations, forest reserves other than critical
watershed forest reserves, and existing DENR Project Areas within timber or forest lands, reservations and
reserves, among others, are open to mining applications subject to area status and clearance.

To this end, area status clearances or land status certifications have been issued to Base Metals relative to
its mining right application, to wit:
 II. MPSA No. 010

1. Portion colored green is the area covered by the aforestated Timberland Project
No. 31-E, Block A and Project No. 59-C, Block A, L.C. Map No. 2466 certified as such
on June 30, 1961; and

2. Shaded brown represent CADC claim.23

III. MPSA No. 011

1. The area applied covers the Timberland, portion of Project No. 31-E, Block-E, L.C.
Map No. 2468 and Project No. 36-A Block II, Alienable and Disposable Land, L.C.
Map No. 1822, certified as such on June 30, 1961 and January 1, 1955, respectively;

2. The green shade is the remaining portion of Timber Land Project;

3. The portion colored brown is an applied and CADC areas;

4. Red shade denotes alienable and disposable land.24

IV. MPSA No. 012

Respectfully returned herewith is the folder of Base Metals Mineral Resources

Corporation, applied under Mineral Production Sharing Agreement (MPSA (XIII)
012), referred to this office per memorandum dated August 5, 1997 for Land status
certification and the findings based on available references file this office, the site is
within the unclassified Public Forest of the LGU, Rosario, Agusan del Sur. The
shaded portion is the wilderness area of PICOP Resources Incorporated (PRI),
Timber License Agreement.25

V. MPSA No. 013

1. The area status shaded green falls within Timber Land, portion of Project No. 31-
E, Block-A, Project No. 59-C, Block-A, L.C. Map No. 2468 certified as such on June
30, 1961;

2. Colored brown denotes a portion claimed as CADC areas;

3. Violet shade represent a part of reforestation project of PRI concession; and

4. The yellow color is identical to unclassified Public Forest of said LGU and the area
inclosed in Red is the wilderness area of PICOP Resources, Inc. (PRI), Timber License
Agreement.26

Thirdly, PICOP failed to present any evidence that the area covered by the MPSA is a protected wilderness
area designated as an initial component of the NIPAS pursuant to a law, presidential decree, presidential
proclamation or executive order as required by RA 7586.
Sec. 5(a) of RA 7586 provides:

Sec. 5. Establishment and Extent of the System.—The establishment and operationalization of

the System shall involve the following:

(a) All areas or islands in the Philippines proclaimed, designated or set aside, pursuant to a
law, presidential decree, presidential proclamation or executive order as national park, game
refuge, bird and wildlife sanctuary, wilderness area, strict nature reserve, watershed,
mangrove reserve, fish sanctuary, natural and historical landmark, protected and managed
landscape/seascape as well as identified virgin forests before the effectivity of this Act are
hereby designated as initial components of the System. The initial components of the System
shall be governed by existing laws, rules and regulations, not inconsistent with this Act.

Although the above-cited area status and clearances, particularly those pertaining to MPSA Nos. 012 and
013, state that portions thereof are within the wilderness area of PICOP, there is no showing that this
supposed wilderness area has been proclaimed, designated or set aside as such, pursuant to a law,
presidential decree, presidential proclamation or executive order. It should be emphasized that it is only
when this area has been so designated that Sec. 20 of RA 7586, which prohibits mineral locating within
protected areas, becomes operational.

From the foregoing, there is clearly no merit to PICOP's contention that the area covered by Base Metals'
MPSA is, by law, closed to mining activities.

Finally, we do not subscribe to PICOP's argument that the Presidential Warranty dated September 25,
1968 is a contract protected by the non-impairment clause of the 1987 Constitution.

An examination of the Presidential Warranty at once reveals that it simply reassures PICOP of the
government's commitment to uphold the terms and conditions of its timber license and guarantees
PICOP's peaceful and adequate possession and enjoyment of the areas which are the basic sources of raw
materials for its wood processing complex. The warranty covers only the right to cut, collect, and remove
timber in its concession area, and does not extend to the utilization of other resources, such as mineral
resources, occurring within the concession.

The Presidential Warranty cannot be considered a contract distinct from PTLA No. 47 and IFMA No. 35.
We agree with the OSG's position that it is merely a collateral undertaking which cannot amplify PICOP's
rights under its timber license. Our definitive ruling in Oposa v. Factoran27 that a timber license is not a
contract within the purview of the non-impairment clause is edifying. We declared:

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a
contract, property or a property right protected by the due process clause of the Constitution.
In Tan vs. Director of Forestry, this Court held:

"x x x A timber license is an instrument by which the State regulates the utilization
and disposition of forest resources to the end that public welfare is promoted. A
timber license is not a contract within the purview of the due process clause; it is
only a license or a privilege, which can be validly withdrawn whenever dictated by
public interest or public welfare as in this case.

'A license is merely a permit or privilege to do what otherwise would be

unlawful, and is not a contract between the authority, federal, state, or
 municipal, granting it and the person to whom it is granted; neither is it
a property or a property right, nor does it create a vested right; nor is it
taxation' (C.J. 168). Thus, this Court held that the granting of license does
not create irrevocable rights, neither is it property or property rights
(People vs. Ong Tin, 54 O.G. 7576). x x x"

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary:

"x x x Timber licenses, permits and license agreements are the principal instruments
by which the State regulates the utilization and disposition of forest resources to
the end that public welfare is promoted. And it can hardly be gainsaid that they
merely evidence a privilege granted by the State to qualified entities, and do not
vest in the latter a permanent or irrevocable right to the particular concession
area and the forest products therein. They may be validly amended, modified,
replaced or rescinded by the Chief Executive when national interests so
require. Thus, they are not deemed contracts within the purview of the due process
of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125
SCRA 302]."

Since timber licenses are not contracts, the non-impairment clause, which reads:

"Sec. 10. No law impairing the obligation of contracts shall be passed."

cannot be invoked.28 [emphasis supplied]

The Presidential Warranty cannot, in any manner, be construed as a contractual undertaking assuring
PICOP of exclusive possession and enjoyment of its concession areas. Such an interpretation would result
in the complete abdication by the State in favor of PICOP of the sovereign power to control and supervise
the exploration, development and utilization of the natural resources in the area.

In closing, we should lay emphasis on the fact that the reinstatement of Base Metals' MPSA does not
automatically result in its approval. Base Metals still has to comply with the requirements outlined in DAO
96-40, including the publication/posting/radio announcement of its mineral agreement application.

IN VIEW OF THE FOREGOING, the instant petition is DENIED. The Decision of the Court of Appeals
November 28, 2003 is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Footnotes

22
Sec. 3(d), PD 705. Public forest is the mass of lands of the public domain which has not been
the subject of the persent system of classification for the determination of which lands are
needed for forest purposes and which are not [Sec. 3(a), PD 705]; Permanent forest or forest
reserves refer to those lands of the public domain which have been the subject of the present
system of classification and determined to be needed for forest purposes [Sec. 3(b), PD 705];
Forest reservations refer to forest lands which have been reserved by the President of the
Philippines for any specific purpose or purposes [Sec. 3(g), PD 705].
DENR vs. Yap, G.R. No. 167707, Oct 8, 2008

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 167707 October 8, 2008

THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, THE REGIONAL
EXECUTIVE DIRECTOR, DENR-REGION VI, REGIONAL TECHNICAL DIRECTOR FOR LANDS, LANDS
MANAGEMENT BUREAU, REGION VI PROVINCIAL ENVIRONMENT AND NATURAL RESOURCES OFFICER
OF KALIBO, AKLAN, REGISTER OF DEEDS, DIRECTOR OF LAND REGISTRATION AUTHORITY, DEPARTMENT
OF TOURISM SECRETARY, DIRECTOR OF PHILIPPINE TOURISM AUTHORITY, petitioners,
vs.
MAYOR JOSE S. YAP, LIBERTAD TALAPIAN, MILA Y. SUMNDAD, and ANICETO YAP, in their behalf and in
behalf of all those similarly situated, respondents.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. G.R. No. 173775 October 8, 2008

DR. ORLANDO SACAY and WILFREDO GELITO, joined by THE LANDOWNERS OF BORACAY SIMILARLY
SITUATED NAMED IN A LIST, ANNEX "A" OF THIS PETITION, petitioners,
vs.
THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, THE REGIONAL
TECHNICAL DIRECTOR FOR LANDS, LANDS MANAGEMENT BUREAU, REGION VI, PROVINCIAL
ENVIRONMENT AND NATURAL RESOURCES OFFICER, KALIBO, AKLAN, respondents.

DECISION

REYES, R.T., J.:

AT stake in these consolidated cases is the right of the present occupants of Boracay Island to secure titles
over their occupied lands.

There are two consolidated petitions. The first is G.R. No. 167707, a petition for review on certiorari of the
Decision1of the Court of Appeals (CA) affirming that2 of the Regional Trial Court (RTC) in Kalibo, Aklan,
which granted the petition for declaratory relief filed by respondents-claimants Mayor Jose Yap, et al. and
ordered the survey of Boracay for titling purposes. The second is G.R. No. 173775, a petition for
prohibition, mandamus, and nullification of Proclamation No. 10645">[3] issued by President Gloria
Macapagal-Arroyo classifying Boracay into reserved forest and agricultural land.

The Antecedents

G.R. No. 167707

Boracay Island in the Municipality of Malay, Aklan, with its powdery white sand beaches and warm
crystalline waters, is reputedly a premier Philippine tourist destination. The island is also home to 12,003
inhabitants4 who live in the bone-shaped island’s three barangays.5

On April 14, 1976, the Department of Environment and Natural Resources (DENR) approved the National
Reservation Survey of Boracay

Island,6 which identified several lots as being occupied or claimed by named persons.7

On November 10, 1978, then President Ferdinand Marcos issued Proclamation No. 18018 declaring
Boracay Island, among other islands, caves and peninsulas in the Philippines, as tourist zones and marine
reserves under the administration of the Philippine Tourism Authority (PTA). President Marcos later
approved the issuance of PTA Circular 3-829 dated September 3, 1982, to implement Proclamation No.
1801.

Claiming that Proclamation No. 1801 and PTA Circular No 3-82 precluded them from filing an application
for judicial confirmation of imperfect title or survey of land for titling purposes, respondents-claimants
Mayor Jose S. Yap, Jr., Libertad Talapian, Mila Y. Sumndad, and Aniceto Yap filed a petition for declaratory
relief with the RTC in Kalibo, Aklan.

In their petition, respondents-claimants alleged that Proclamation No. 1801 and PTA Circular No. 3-82
raised doubts on their right to secure titles over their occupied lands. They declared that they themselves,
or through their predecessors-in-interest, had been in open, continuous, exclusive, and notorious
possession and occupation in Boracay since June 12, 1945, or earlier since time immemorial. They
declared their lands for tax purposes and paid realty taxes on them.10

Respondents-claimants posited that Proclamation No. 1801 and its implementing Circular did not place
Boracay beyond the commerce of man. Since the Island was classified as a tourist zone, it was susceptible
of private ownership. Under Section 48(b) of Commonwealth Act (CA) No. 141, otherwise known as the
Public Land Act, they had the right to have the lots registered in their names through judicial confirmation
of imperfect titles.

The Republic, through the Office of the Solicitor General (OSG), opposed the petition for declaratory
relief. The OSG countered that Boracay Island was an unclassified land of the public domain. It formed
part of the mass of lands classified as "public forest," which was not available for disposition pursuant to
Section 3(a) of Presidential Decree (PD) No. 705 or the Revised Forestry Code, 11 as amended.

The OSG maintained that respondents-claimants’ reliance on PD No. 1801 and PTA Circular No. 3-82 was
misplaced. Their right to judicial confirmation of title was governed by CA No. 141 and PD No. 705. Since
Boracay Island had not been classified as alienable and disposable, whatever possession they had cannot
ripen into ownership.

During pre-trial, respondents-claimants and the OSG stipulated on the following facts: (1) respondents-
claimants were presently in possession of parcels of land in Boracay Island; (2) these parcels of land were
planted with coconut trees and other natural growing trees; (3) the coconut trees had heights of more or
less twenty (20) meters and were planted more or less fifty (50) years ago; and (4) respondents-claimants
declared the land they were occupying for tax purposes.12

The parties also agreed that the principal issue for resolution was purely legal: whether Proclamation No.
1801 posed any legal hindrance or impediment to the titling of the lands in Boracay. They decided to
forego with the trial and to submit the case for resolution upon submission of their respective
memoranda.13

The RTC took judicial notice14 that certain parcels of land in Boracay Island, more particularly Lots 1 and
30, Plan PSU-5344, were covered by Original Certificate of Title No. 19502 (RO 2222) in the name of the
Heirs of Ciriaco S. Tirol. These lots were involved in Civil Case Nos. 5222 and 5262 filed before the RTC of
Kalibo, Aklan.15 The titles were issued on

August 7, 1933.16

RTC and CA Dispositions

On July 14, 1999, the RTC rendered a decision in favor of respondents-claimants, with a fallo reading:

WHEREFORE, in view of the foregoing, the Court declares that Proclamation No. 1801 and PTA Circular
No. 3-82 pose no legal obstacle to the petitioners and those similarly situated to acquire title to their
lands in Boracay, in accordance with the applicable laws and in the manner prescribed therein; and to
have their lands surveyed and approved by respondent Regional Technical Director of Lands as the
approved survey does not in itself constitute a title to the land.

SO ORDERED.17

The RTC upheld respondents-claimants’ right to have their occupied lands titled in their name. It ruled
that neither Proclamation No. 1801 nor PTA Circular No. 3-82 mentioned that lands in Boracay were
inalienable or could not be the subject of disposition.18 The Circular itself recognized private ownership of
lands.19 The trial court cited Sections 8720 and 5321 of the Public Land Act as basis for acknowledging
private ownership of lands in Boracay and that only those forested areas in public lands were declared as
part of the forest reserve.22

The OSG moved for reconsideration but its motion was denied.23 The Republic then appealed to the CA.

On December 9, 2004, the appellate court affirmed in toto the RTC decision, disposing as follows:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DENYING the appeal
filed in this case and AFFIRMING the decision of the lower court.24

The CA held that respondents-claimants could not be prejudiced by a declaration that the lands they
occupied since time immemorial were part of a forest reserve.

Again, the OSG sought reconsideration but it was similarly denied. 25 Hence, the present petition under
Rule 45.

G.R. No. 173775

On May 22, 2006, during the pendency of G.R. No. 167707, President Gloria Macapagal-Arroyo issued
Proclamation No. 106426 classifying Boracay Island into four hundred (400) hectares of reserved forest
land (protection purposes) and six hundred twenty-eight and 96/100 (628.96) hectares of agricultural land
(alienable and disposable). The Proclamation likewise provided for a fifteen-meter buffer zone on each
side of the centerline of roads and trails, reserved for right-of-way and which shall form part of the area
reserved for forest land protection purposes.

On August 10, 2006, petitioners-claimants Dr. Orlando Sacay,27 Wilfredo Gelito,28 and other
landowners29 in Boracay filed with this Court an original petition for prohibition, mandamus, and
nullification of Proclamation No. 1064.30 They allege that the Proclamation infringed on their "prior vested
rights" over portions of Boracay. They have been in continued possession of their respective lots in
Boracay since time immemorial. They have also invested billions of pesos in developing their lands and
building internationally renowned first class resorts on their lots.31

Petitioners-claimants contended that there is no need for a proclamation reclassifying Boracay into
agricultural land. Being classified as neither mineral nor timber land, the island is deemed agricultural
pursuant to the Philippine Bill of 1902 and Act No. 926, known as the first Public Land Act.32 Thus, their
possession in the concept of owner for the required period entitled them to judicial confirmation of
imperfect title.

Opposing the petition, the OSG argued that petitioners-claimants do not have a vested right over their
occupied portions in the island. Boracay is an unclassified public forest land pursuant to Section 3(a) of PD
No. 705. Being public forest, the claimed portions of the island are inalienable and cannot be the subject
of judicial confirmation of imperfect title. It is only the executive department, not the courts, which has
authority to reclassify lands of the public domain into alienable and disposable lands. There is a need for a
positive government act in order to release the lots for disposition.

On November 21, 2006, this Court ordered the consolidation of the two petitions as they principally
involve the same issues on the land classification of Boracay Island.33

Issues

G.R. No. 167707

The OSG raises the lone issue of whether Proclamation No. 1801 and PTA Circular No. 3-82 pose any legal
obstacle for respondents, and all those similarly situated, to acquire title to their occupied lands in
Boracay Island.34

G.R. No. 173775

Petitioners-claimants hoist five (5) issues, namely:

I.

AT THE TIME OF THE ESTABLISHED POSSESSION OF PETITIONERS IN CONCEPT OF OWNER OVER THEIR
RESPECTIVE AREAS IN BORACAY, SINCE TIME IMMEMORIAL OR AT THE LATEST SINCE 30 YRS. PRIOR TO
THE FILING OF THE PETITION FOR DECLARATORY RELIEF ON NOV. 19, 1997, WERE THE AREAS OCCUPIED
BY THEM PUBLIC AGRICULTURAL LANDS AS DEFINED BY LAWS THEN ON JUDICIAL CONFIRMATION OF
IMPERFECT TITLES OR PUBLIC FOREST AS DEFINED BY SEC. 3a, PD 705?

II.
HAVE PETITIONERS OCCUPANTS ACQUIRED PRIOR VESTED RIGHT OF PRIVATE OWNERSHIPOVER THEIR
OCCUPIED PORTIONS OF BORACAY LAND, DESPITE THE FACT THAT THEY HAVE NOT APPLIED YET FOR
JUDICIAL CONFIRMATION OF IMPERFECT TITLE?

III.

IS THE EXECUTIVE DECLARATION OF THEIR AREAS AS ALIENABLE AND DISPOSABLE UNDER SEC 6, CA 141
[AN] INDISPENSABLE PRE-REQUISITE FOR PETITIONERS TO OBTAIN TITLEUNDER THE TORRENS SYSTEM?

IV.

IS THE ISSUANCE OF PROCLAMATION 1064 ON MAY 22, 2006, VIOLATIVE OF THE PRIOR VESTED RIGHTS
TO PRIVATE OWNERSHIP OF PETITIONERS OVER THEIR LANDS IN BORACAY, PROTECTED BY THE DUE
PROCESS CLAUSE OF THE CONSTITUTION OR IS PROCLAMATION 1064 CONTRARY TO SEC. 8, CA 141, OR
SEC. 4(a) OF RA 6657.

V.

CAN RESPONDENTS BE COMPELLED BY MANDAMUS TO ALLOW THE SURVEY AND TO APPROVE THE
SURVEY PLANS FOR PURPOSES OF THE APPLICATION FOR TITLING OF THE LANDS OF PETITIONERS IN
BORACAY?35 (Underscoring supplied)

In capsule, the main issue is whether private claimants (respondents-claimants in G.R. No. 167707 and
petitioners-claimants in G.R. No. 173775) have a right to secure titles over their occupied portions in
Boracay. The twin petitions pertain to their right, if any, to judicial confirmation of imperfect title under
CA No. 141, as amended. They do not involve their right to secure title under other pertinent laws.

Our Ruling

Regalian Doctrine and power of the executive

to reclassify lands of the public domain

Private claimants rely on three (3) laws and executive acts in their bid for judicial confirmation of
imperfect title, namely: (a) Philippine Bill of 190236 in relation to Act No. 926, later amended and/or
superseded by Act No. 2874 and CA No. 141; 37 (b) Proclamation No. 180138 issued by then President
Marcos; and (c) Proclamation No. 106439issued by President Gloria Macapagal-Arroyo. We shall proceed
to determine their rights to apply for judicial confirmation of imperfect title under these laws and
executive acts.

But first, a peek at the Regalian principle and the power of the executive to reclassify lands of the public
domain.

The 1935 Constitution classified lands of the public domain into agricultural, forest or
timber.40 Meanwhile, the 1973 Constitution provided the following divisions: agricultural, industrial or
commercial, residential, resettlement, mineral, timber or forest and grazing lands, and such other classes
as may be provided by law,41 giving the government great leeway for classification.42 Then the 1987
Constitution reverted to the 1935 Constitution classification with one addition: national parks. 43 Of
these, only agricultural lands may be alienated.44 Prior to Proclamation No. 1064 of May 22, 2006,
Boracay Island had never been expressly and administratively classified under any of these grand
divisions. Boracay was an unclassified land of the public domain.

The Regalian Doctrine dictates that all lands of the public domain belong to the State, that the State is the
source of any asserted right to ownership of land and charged with the conservation of such
patrimony.45 The doctrine has been consistently adopted under the 1935, 1973, and 1987 Constitutions.46

All lands not otherwise appearing to be clearly within private ownership are presumed to belong to the
State.47Thus, all lands that have not been acquired from the government, either by purchase or by grant,
belong to the State as part of the inalienable public domain.48 Necessarily, it is up to the State to
determine if lands of the public domain will be disposed of for private ownership. The government, as the
agent of the state, is possessed of the plenary power as the persona in law to determine who shall be the
favored recipients of public lands, as well as under what terms they may be granted such privilege, not
excluding the placing of obstacles in the way of their exercise of what otherwise would be ordinary acts of
ownership.49

Our present land law traces its roots to the Regalian Doctrine. Upon the Spanish conquest of the
Philippines, ownership of all lands, territories and possessions in the Philippines passed to the Spanish
Crown.50 The Regalian doctrine was first introduced in the Philippines through the Laws of the Indies and
the Royal Cedulas, which laid the foundation that "all lands that were not acquired from the Government,
either by purchase or by grant, belong to the public domain."51

The Laws of the Indies was followed by the Ley Hipotecaria or the Mortgage Law of 1893. The Spanish
Mortgage Law provided for the systematic registration of titles and deeds as well as possessory claims.52

The Royal Decree of 1894 or the Maura Law 53 partly amended the Spanish Mortgage Law and the Laws of
the Indies. It established possessory information as the method of legalizing possession of vacant Crown
land, under certain conditions which were set forth in said decree. 54 Under Section 393 of the Maura Law,
an informacion posesoria or possessory information title,55 when duly inscribed in the Registry of
Property, is converted into a title of ownership only after the lapse of twenty (20) years of uninterrupted
possession which must be actual, public, and adverse,56 from the date of its inscription.57 However,
possessory information title had to be perfected one year after the promulgation of the Maura Law, or
until April 17, 1895. Otherwise, the lands would revert to the State.58

In sum, private ownership of land under the Spanish regime could only be founded on royal concessions
which took various forms, namely: (1) titulo real or royal grant; (2) concesion especial or special grant;
(3) composicion con el estado or adjustment title; (4) titulo de compra or title by purchase; and
(5) informacion posesoria or possessory information title.59>

The first law governing the disposition of public lands in the Philippines under American rule was
embodied in the Philippine Bill of 1902.60 By this law, lands of the public domain in the Philippine Islands
were classified into three (3) grand divisions, to wit: agricultural, mineral, and timber or forest lands. 61 The
act provided for, among others, the disposal of mineral lands by means of absolute grant (freehold
system) and by lease (leasehold system).62 It also provided the definition by exclusion of "agricultural
public lands."63 Interpreting the meaning of "agricultural lands" under the Philippine Bill of 1902, the
Court declared in Mapa v. Insular Government:64

x x x In other words, that the phrase "agricultural land" as used in Act No. 926 means those public lands
acquired from Spain which are not timber or mineral lands. x x x65 (Emphasis Ours)
On February 1, 1903, the Philippine Legislature passed Act No. 496, otherwise known as the Land
Registration Act. The act established a system of registration by which recorded title becomes absolute,
indefeasible, and imprescriptible. This is known as the Torrens system.66

Concurrently, on October 7, 1903, the Philippine Commission passed Act No. 926, which was the first
Public Land Act. The Act introduced the homestead system and made provisions for judicial and
administrative confirmation of imperfect titles and for the sale or lease of public lands. It permitted
corporations regardless of the nationality of persons owning the controlling stock to lease or purchase
lands of the public domain.67 Under the Act, open, continuous, exclusive, and notorious possession and
occupation of agricultural lands for the next ten (10) years preceding July 26, 1904 was sufficient for
judicial confirmation of imperfect title.68

On November 29, 1919, Act No. 926 was superseded by Act No. 2874, otherwise known as the second
Public Land Act. This new, more comprehensive law limited the exploitation of agricultural lands to
Filipinos and Americans and citizens of other countries which gave Filipinos the same privileges. For
judicial confirmation of title, possession and occupation en concepto dueño since time immemorial, or
since July 26, 1894, was required.69

After the passage of the 1935 Constitution, CA No. 141 amended Act No. 2874 on December 1, 1936. To
this day, CA No. 141, as amended, remains as the existing general law governing the classification and
disposition of lands of the public domain other than timber and mineral lands, 70 and privately owned
lands which reverted to the State.71

Section 48(b) of CA No. 141 retained the requirement under Act No. 2874 of possession and occupation of
lands of the public domain since time immemorial or since July 26, 1894. However, this provision was
superseded by Republic Act (RA) No. 1942,72 which provided for a simple thirty-year prescriptive period
for judicial confirmation of imperfect title. The provision was last amended by PD No. 1073,73 which now
provides for possession and occupation of the land applied for since June 12, 1945, or earlier.74

The issuance of PD No. 89275 on February 16, 1976 discontinued the use of Spanish titles as evidence in
land registration proceedings.76 Under the decree, all holders of Spanish titles or grants should apply for
registration of their lands under Act No. 496 within six (6) months from the effectivity of the decree on
February 16, 1976. Thereafter, the recording of all unregistered lands77 shall be governed by Section 194
of the Revised Administrative Code, as amended by Act No. 3344.

On June 11, 1978, Act No. 496 was amended and updated by PD No. 1529, known as the Property
Registration Decree. It was enacted to codify the various laws relative to registration of property. 78 It
governs registration of lands under the Torrens system as well as unregistered lands, including chattel
mortgages.79

A positive act declaring land as alienable and disposable is required. In keeping with the presumption of
State ownership, the Court has time and again emphasized that there must be a positive act of the
government, such as an official proclamation,80 declassifying inalienable public land into disposable land
for agricultural or other purposes.81 In fact, Section 8 of CA No. 141 limits alienable or disposable lands
only to those lands which have been "officially delimited and classified."82

The burden of proof in overcoming the presumption of State ownership of the lands of the public domain
is on the person applying for registration (or claiming ownership), who must prove that the land subject of
the application is alienable or disposable.83 To overcome this presumption, incontrovertible evidence
must be established that the land subject of the application (or claim) is alienable or disposable.84 There
must still be a positive act declaring land of the public domain as alienable and disposable. To prove that
the land subject of an application for registration is alienable, the applicant must establish the existence
of a positive act of the government such as a presidential proclamation or an executive order; an
administrative action; investigation reports of Bureau of Lands investigators; and a legislative act or a
statute.85 The applicant may also secure a certification from the government that the land claimed to have
been possessed for the required number of years is alienable and disposable.86

In the case at bar, no such proclamation, executive order, administrative action, report, statute, or
certification was presented to the Court. The records are bereft of evidence showing that, prior to 2006,
the portions of Boracay occupied by private claimants were subject of a government proclamation that
the land is alienable and disposable. Absent such well-nigh incontrovertible evidence, the Court cannot
accept the submission that lands occupied by private claimants were already open to disposition before
2006. Matters of land classification or reclassification cannot be assumed. They call for proof.87

Ankron and De Aldecoa did not make the whole of Boracay Island, or portions of it, agricultural
lands.Private claimants posit that Boracay was already an agricultural land pursuant to the old
cases Ankron v. Government of the Philippine Islands (1919) 88 and De Aldecoa v. The Insular Government
(1909).89 These cases were decided under the provisions of the Philippine Bill of 1902 and Act No. 926.
There is a statement in these old cases that "in the absence of evidence to the contrary, that in each case
the lands are agricultural lands until the contrary is shown."90

Private claimants’ reliance on Ankron and De Aldecoa is misplaced. These cases did not have the effect of
converting the whole of Boracay Island or portions of it into agricultural lands. It should be stressed that
the Philippine Bill of 1902 and Act No. 926 merely provided the manner through which land registration
courts would classify lands of the public domain. Whether the land would be classified as timber, mineral,
or agricultural depended on proof presented in each case.

Ankron and De Aldecoa were decided at a time when the President of the Philippines had no power to
classify lands of the public domain into mineral, timber, and agricultural. At that time, the courts were
free to make corresponding classifications in justiciable cases, or were vested with implicit power to do
so, depending upon the preponderance of the evidence.91 This was the Court’s ruling in Heirs of the Late
Spouses Pedro S. Palanca and Soterranea Rafols Vda. De Palanca v. Republic,92 in which it stated, through
Justice Adolfo Azcuna, viz.:

x x x Petitioners furthermore insist that a particular land need not be formally released by an act of the
Executive before it can be deemed open to private ownership, citing the cases of Ramos v. Director of
Lands and Ankron v. Government of the Philippine Islands.

xxxx

Petitioner’s reliance upon Ramos v. Director of Lands and Ankron v. Government is misplaced. These cases
were decided under the Philippine Bill of 1902 and the first Public Land Act No. 926 enacted by the
Philippine Commission on October 7, 1926, under which there was no legal provision vesting in the Chief
Executive or President of the Philippines the power to classify lands of the public domain into mineral,
timber and agricultural so that the courts then were free to make corresponding classifications in
justiciable cases, or were vested with implicit power to do so, depending upon the preponderance of the
evidence.93

To aid the courts in resolving land registration cases under Act No. 926, it was then necessary to devise a
presumption on land classification. Thus evolved the dictum in Ankron that "the courts have a right to
presume, in the absence of evidence to the contrary, that in each case the lands are agricultural lands
until the contrary is shown."94
But We cannot unduly expand the presumption in Ankron and De Aldecoa to an argument that all lands of
the public domain had been automatically reclassified as disposable and alienable agricultural lands. By no
stretch of imagination did the presumption convert all lands of the public domain into agricultural lands.

If We accept the position of private claimants, the Philippine Bill of 1902 and Act No. 926 would have
automatically made all lands in the Philippines, except those already classified as timber or mineral land,
alienable and disposable lands. That would take these lands out of State ownership and worse, would be
utterly inconsistent with and totally repugnant to the long-entrenched Regalian doctrine.

The presumption in Ankron and De Aldecoa attaches only to land registration cases brought under the
provisions of Act No. 926, or more specifically those cases dealing with judicial and administrative
confirmation of imperfect titles. The presumption applies to an applicant for judicial or administrative
conformation of imperfect title under Act No. 926. It certainly cannot apply to landowners, such as private
claimants or their predecessors-in-interest, who failed to avail themselves of the benefits of Act No. 926.
As to them, their land remained unclassified and, by virtue of the Regalian doctrine, continued to be
owned by the State.

In any case, the assumption in Ankron and De Aldecoa was not absolute. Land classification was, in the
end, dependent on proof. If there was proof that the land was better suited for non-agricultural uses, the
courts could adjudge it as a mineral or timber land despite the presumption. In Ankron, this Court stated:

In the case of Jocson vs. Director of Forestry (supra), the Attorney-General admitted in effect that whether
the particular land in question belongs to one class or another is a question of fact. The mere fact that a
tract of land has trees upon it or has mineral within it is not of itself sufficient to declare that one is
forestry land and the other, mineral land. There must be some proof of the extent and present or future
value of the forestry and of the minerals. While, as we have just said, many definitions have been given
for "agriculture," "forestry," and "mineral" lands, and that in each case it is a question of fact, we think it
is safe to say that in order to be forestry or mineral land the proof must show that it is more valuable for
the forestry or the mineral which it contains than it is for agricultural purposes. (Sec. 7, Act No. 1148.) It is
not sufficient to show that there exists some trees upon the land or that it bears some mineral. Land may
be classified as forestry or mineral today, and, by reason of the exhaustion of the timber or mineral, be
classified as agricultural land tomorrow. And vice-versa, by reason of the rapid growth of timber or the
discovery of valuable minerals, lands classified as agricultural today may be differently classified
tomorrow. Each case must be decided upon the proof in that particular case, having regard for its
present or future value for one or the other purposes. We believe, however, considering the fact that it
is a matter of public knowledge that a majority of the lands in the Philippine Islands are agricultural lands
that the courts have a right to presume, in the absence of evidence to the contrary, that in each case the
lands are agricultural lands until the contrary is shown. Whatever the land involved in a particular land
registration case is forestry or mineral land must, therefore, be a matter of proof. Its superior value for
one purpose or the other is a question of fact to be settled by the proof in each particular case. The fact
that the land is a manglar [mangrove swamp] is not sufficient for the courts to decide whether it is
agricultural, forestry, or mineral land. It may perchance belong to one or the other of said classes of land.
The Government, in the first instance, under the provisions of Act No. 1148, may, by reservation, decide
for itself what portions of public land shall be considered forestry land, unless private interests have
intervened before such reservation is made. In the latter case, whether the land is agricultural, forestry,
or mineral, is a question of proof. Until private interests have intervened, the Government, by virtue of
the terms of said Act (No. 1148), may decide for itself what portions of the "public domain" shall be set
aside and reserved as forestry or mineral land. (Ramos vs. Director of Lands, 39 Phil. 175; Jocson vs.
Director of Forestry, supra)95(Emphasis ours)

Since 1919, courts were no longer free to determine the classification of lands from the facts of each case,
except those that have already became private lands.96 Act No. 2874, promulgated in 1919 and
reproduced in Section 6 of CA No. 141, gave the Executive Department, through the President,
the exclusive prerogative to classify or reclassify public lands into alienable or disposable, mineral or
forest.96-a Since then, courts no longer had the authority, whether express or implied, to determine the
classification of lands of the public domain.97

Here, private claimants, unlike the Heirs of Ciriaco Tirol who were issued their title in 1933, 98 did not
present a justiciable case for determination by the land registration court of the property’s land
classification. Simply put, there was no opportunity for the courts then to resolve if the land the Boracay
occupants are now claiming were agricultural lands. When Act No. 926 was supplanted by Act No. 2874 in
1919, without an application for judicial confirmation having been filed by private claimants or their
predecessors-in-interest, the courts were no longer authorized to determine the property’s land
classification. Hence, private claimants cannot bank on Act No. 926.

We note that the RTC decision99 in G.R. No. 167707 mentioned Krivenko v. Register of Deeds of
Manila,100 which was decided in 1947 when CA No. 141, vesting the Executive with the sole power to
classify lands of the public domain was already in effect. Krivenko cited the old cases Mapa v. Insular
Government,101 De Aldecoa v. The Insular Government, 102 and Ankron v. Government of the Philippine
Islands.103

Krivenko, however, is not controlling here because it involved a totally different issue. The pertinent issue
in Krivenko was whether residential lots were included in the general classification of agricultural lands;
and if so, whether an alien could acquire a residential lot. This Court ruled that as an alien, Krivenko was
prohibited by the 1935 Constitution104 from acquiring agricultural land, which included residential lots.
Here, the issue is whether unclassified lands of the public domain are automatically deemed agricultural.

Notably, the definition of "agricultural public lands" mentioned in Krivenko relied on the old cases decided
prior to the enactment of Act No. 2874, including Ankron and De Aldecoa.105 As We have already stated,
those cases cannot apply here, since they were decided when the Executive did not have the authority to
classify lands as agricultural, timber, or mineral.

Private claimants’ continued possession under Act No. 926 does not create a presumption that the land
is alienable. Private claimants also contend that their continued possession of portions of Boracay Island
for the requisite period of ten (10) years under Act No. 926106 ipso facto converted the island into private
ownership. Hence, they may apply for a title in their name.

A similar argument was squarely rejected by the Court in Collado v. Court of Appeals.107 Collado, citing the
separate opinion of now Chief Justice Reynato S. Puno in Cruz v. Secretary of Environment and Natural
Resources,107-a ruled:

"Act No. 926, the first Public Land Act, was passed in pursuance of the provisions of 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." In short, the Public Land
Act operated on the assumption that title to public lands in the Philippine Islands remained in the
government; 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. 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, and excluded the patrimonial property of the government and the friar
lands."
Thus, it is plain error for petitioners to argue that under the Philippine Bill of 1902 and Public Land Act
No. 926, mere possession by private individuals of lands creates the legal presumption that the lands
are alienable and disposable.108 (Emphasis Ours)

Except for lands already covered by existing titles, Boracay was an unclassified land of the public
domain prior to Proclamation No. 1064. Such unclassified lands are considered public forest under PD
No. 705. The DENR109 and the National Mapping and Resource Information Authority110 certify that
Boracay Island is an unclassified land of the public domain.

PD No. 705 issued by President Marcos categorized all unclassified lands of the public domain as public
forest. Section 3(a) of PD No. 705 defines a public forest as "a mass of lands of the public domain
which has not been the subject of the present system of classification for the determination of which lands
are needed for forest purpose and which are not." Applying PD No. 705, all unclassified lands, including
those in Boracay Island, are ipso factoconsidered public forests. PD No. 705, however, respects titles
already existing prior to its effectivity.

The Court notes that the classification of Boracay as a forest land under PD No. 705 may seem to be out of
touch with the present realities in the island. Boracay, no doubt, has been partly stripped of its forest
cover to pave the way for commercial developments. As a premier tourist destination for local and foreign
tourists, Boracay appears more of a commercial island resort, rather than a forest land.

Nevertheless, that the occupants of Boracay have built multi-million peso beach resorts on the
island;111 that the island has already been stripped of its forest cover; or that the implementation of
Proclamation No. 1064 will destroy the island’s tourism industry, do not negate its character as public
forest.

Forests, in the context of both the Public Land Act and the Constitution 112 classifying lands of the public
domain into "agricultural, forest or timber, mineral lands, and national parks," do not necessarily refer to
large tracts of wooded land or expanses covered by dense growths of trees and underbrushes. 113 The
discussion in Heirs of Amunategui v. Director of Forestry 114 is particularly instructive:

A forested area classified as forest land of the public domain does not lose such classification simply
because loggers or settlers may have stripped it of its forest cover. Parcels of land classified as forest land
may actually be covered with grass or planted to crops by kaingin cultivators or other farmers. "Forest
lands" do not have to be on mountains or in out of the way places. Swampy areas covered by mangrove
trees, nipa palms, and other trees growing in brackish or sea water may also be classified as forest
land. The classification is descriptive of its legal nature or status and does not have to be descriptive of
what the land actually looks like. Unless and until the land classified as "forest" is released in an official
proclamation to that effect so that it may form part of the disposable agricultural lands of the public
domain, the rules on confirmation of imperfect title do not apply.115 (Emphasis supplied)

There is a big difference between "forest" as defined in a dictionary and "forest or timber land" as a
classification of lands of the public domain as appearing in our statutes. One is descriptive of what
appears on the land while the other is a legal status, a classification for legal purposes. 116 At any rate, the
Court is tasked to determine the legalstatus of Boracay Island, and not look into its physical layout. Hence,
even if its forest cover has been replaced by beach resorts, restaurants and other commercial
establishments, it has not been automatically converted from public forest to alienable agricultural land.

Private claimants cannot rely on Proclamation No. 1801 as basis for judicial confirmation of imperfect
title. The proclamation did not convert Boracay into an agricultural land. However, private claimants
argue that Proclamation No. 1801 issued by then President Marcos in 1978 entitles them to judicial
confirmation of imperfect title. The Proclamation classified Boracay, among other islands, as a tourist
zone. Private claimants assert that, as a tourist spot, the island is susceptible of private ownership.

Proclamation No. 1801 or PTA Circular No. 3-82 did not convert the whole of Boracay into an agricultural
land. There is nothing in the law or the Circular which made Boracay Island an agricultural land. The
reference in Circular No. 3-82 to "private lands"117 and "areas declared as alienable and
disposable"118 does not by itself classify the entire island as agricultural. Notably, Circular No. 3-82 makes
reference not only to private lands and areas but also to public forested lands. Rule VIII, Section 3
provides:

No trees in forested private lands may be cut without prior authority from the PTA. All forested areas in
public lands are declared forest reserves. (Emphasis supplied)

Clearly, the reference in the Circular to both private and public lands merely recognizes that the island can
be classified by the Executive department pursuant to its powers under CA No. 141. In fact, Section 5 of
the Circular recognizes the then Bureau of Forest Development’s authority to declare areas in the island
as alienable and disposable when it provides:

Subsistence farming, in areas declared as alienable and disposable by the Bureau of Forest Development.

Therefore, Proclamation No. 1801 cannot be deemed the positive act needed to classify Boracay Island as
alienable and disposable land. If President Marcos intended to classify the island as alienable and
disposable or forest, or both, he would have identified the specific limits of each, as President Arroyo did
in Proclamation No. 1064. This was not done in Proclamation No. 1801.

The Whereas clauses of Proclamation No. 1801 also explain the rationale behind the declaration of
Boracay Island, together with other islands, caves and peninsulas in the Philippines, as a tourist zone and
marine reserve to be administered by the PTA – to ensure the concentrated efforts of the public and
private sectors in the development of the areas’ tourism potential with due regard for ecological balance
in the marine environment. Simply put, the proclamation is aimed at administering the islands for tourism
and ecological purposes. It does not address the areas’ alienability.119

More importantly, Proclamation No. 1801 covers not only Boracay Island, but sixty-four (64) other islands,
coves, and peninsulas in the Philippines, such as Fortune and Verde Islands in Batangas, Port Galera in
Oriental Mindoro, Panglao and Balicasag Islands in Bohol, Coron Island, Puerto Princesa and surrounding
areas in Palawan, Camiguin Island in Cagayan de Oro, and Misamis Oriental, to name a few. If the
designation of Boracay Island as tourist zone makes it alienable and disposable by virtue of Proclamation
No. 1801, all the other areas mentioned would likewise be declared wide open for private disposition.
That could not have been, and is clearly beyond, the intent of the proclamation.

It was Proclamation No. 1064 of 2006 which positively declared part of Boracay as alienable and
opened the same to private ownership. Sections 6 and 7 of CA No. 141120 provide that it is only the
President, upon the recommendation of the proper department head, who has the authority to classify
the lands of the public domain into alienable or disposable, timber and mineral lands.121

In issuing Proclamation No. 1064, President Gloria Macapagal-Arroyo merely exercised the authority
granted to her to classify lands of the public domain, presumably subject to existing vested rights.
Classification of public lands is the exclusive prerogative of the Executive Department, through the Office
of the President. Courts have no authority to do so.122 Absent such classification, the land remains
unclassified until released and rendered open to disposition.123
Proclamation No. 1064 classifies Boracay into 400 hectares of reserved forest land and 628.96 hectares of
agricultural land. The Proclamation likewise provides for a 15-meter buffer zone on each side of the
center line of roads and trails, which are reserved for right of way and which shall form part of the area
reserved for forest land protection purposes.

Contrary to private claimants’ argument, there was nothing invalid or irregular, much less
unconstitutional, about the classification of Boracay Island made by the President through Proclamation
No. 1064. It was within her authority to make such classification, subject to existing vested rights.

Proclamation No. 1064 does not violate the Comprehensive Agrarian Reform Law. Private claimants
further assert that Proclamation No. 1064 violates the provision of the Comprehensive Agrarian Reform
Law (CARL) or RA No. 6657 barring conversion of public forests into agricultural lands. They claim that
since Boracay is a public forest under PD No. 705, President Arroyo can no longer convert it into an
agricultural land without running afoul of Section 4(a) of RA No. 6657, thus:

SEC. 4. Scope. – The Comprehensive Agrarian Reform Law of 1988 shall cover, regardless of tenurial
arrangement and commodity produced, all public and private agricultural lands as provided in
Proclamation No. 131 and Executive Order No. 229, including other lands of the public domain suitable for
agriculture.

More specifically, the following lands are covered by the Comprehensive Agrarian Reform Program:

(a) All alienable and disposable lands of the public domain devoted to or suitable for agriculture.
No reclassification of forest or mineral lands to agricultural lands shall be undertaken after the approval
of this Act until Congress, taking into account ecological, developmental and equity considerations, shall
have determined by law, the specific limits of the public domain.

That Boracay Island was classified as a public forest under PD No. 705 did not bar the Executive from later
converting it into agricultural land. Boracay Island still remained an unclassified land of the public domain
despite PD No. 705.

In Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols v. Republic, 124 the Court stated that
unclassified lands are public forests.

While it is true that the land classification map does not categorically state that the islands are public
forests, the fact that they were unclassified lands leads to the same result. In the absence of the
classification as mineral or timber land, the land remains unclassified land until released and rendered
open to disposition.125 (Emphasis supplied)

Moreover, the prohibition under the CARL applies only to a "reclassification" of land. If the land had never
been previously classified, as in the case of Boracay, there can be no prohibited reclassification under the
agrarian law. We agree with the opinion of the Department of Justice126 on this point:

Indeed, the key word to the correct application of the prohibition in Section 4(a) is the word
"reclassification." Where there has been no previous classification of public forest [referring, we repeat, to
the mass of the public domain which has not been the subject of the present system of classification for
purposes of determining which are needed for forest purposes and which are not] into permanent forest or
forest reserves or some other forest uses under the Revised Forestry Code, there can be no "reclassification
of forest lands" to speak of within the meaning of Section 4(a).
Thus, obviously, the prohibition in Section 4(a) of the CARL against the reclassification of forest lands to
agricultural lands without a prior law delimiting the limits of the public domain, does not, and cannot,
apply to those lands of the public domain, denominated as "public forest" under the Revised Forestry
Code, which have not been previously determined, or classified, as needed for forest purposes in
accordance with the provisions of the Revised Forestry Code.127

Private claimants are not entitled to apply for judicial confirmation of imperfect title under CA No. 141.
Neither do they have vested rights over the occupied lands under the said law. There are two requisites
for judicial confirmation of imperfect or incomplete title under CA No. 141, namely: (1) open, continuous,
exclusive, and notorious possession and occupation of the subject land by himself or through his
predecessors-in-interest under a bona fide claim of ownership since time immemorial or from June 12,
1945; and (2) the classification of the land as alienable and disposable land of the public domain.128

As discussed, the Philippine Bill of 1902, Act No. 926, and Proclamation No. 1801 did not convert portions
of Boracay Island into an agricultural land. The island remained an unclassified land of the public domain
and, applying the Regalian doctrine, is considered State property.

Private claimants’ bid for judicial confirmation of imperfect title, relying on the Philippine Bill of 1902, Act
No. 926, and Proclamation No. 1801, must fail because of the absence of the second element of alienable
and disposable land. Their entitlement to a government grant under our present Public Land Act
presupposes that the land possessed and applied for is already alienable and disposable. This is clear from
the wording of the law itself.129Where the land is not alienable and disposable, possession of the land, no
matter how long, cannot confer ownership or possessory rights.130

Neither may private claimants apply for judicial confirmation of imperfect title under Proclamation No.
1064, with respect to those lands which were classified as agricultural lands. Private claimants failed to
prove the first element of open, continuous, exclusive, and notorious possession of their lands in Boracay
since June 12, 1945.

We cannot sustain the CA and RTC conclusion in the petition for declaratory relief that private claimants
complied with the requisite period of possession.

The tax declarations in the name of private claimants are insufficient to prove the first element of
possession. We note that the earliest of the tax declarations in the name of private claimants were issued
in 1993. Being of recent dates, the tax declarations are not sufficient to convince this Court that the
period of possession and occupation commenced on June 12, 1945.

Private claimants insist that they have a vested right in Boracay, having been in possession of the island
for a long time. They have invested millions of pesos in developing the island into a tourist spot. They say
their continued possession and investments give them a vested right which cannot be unilaterally
rescinded by Proclamation No. 1064.

The continued possession and considerable investment of private claimants do not automatically give
them a vested right in Boracay. Nor do these give them a right to apply for a title to the land they are
presently occupying. This Court is constitutionally bound to decide cases based on the evidence presented
and the laws applicable. As the law and jurisprudence stand, private claimants are ineligible to apply for a
judicial confirmation of title over their occupied portions in Boracay even with their continued possession
and considerable investment in the island.

One Last Note

The Court is aware that millions of pesos have been invested for the development of Boracay Island,
making it a by-word in the local and international tourism industry. The Court also notes that for a
number of years, thousands of people have called the island their home. While the Court commiserates
with private claimants’ plight, We are bound to apply the law strictly and judiciously. This is the law and it
should prevail. Ito ang batas at ito ang dapat umiral.

All is not lost, however, for private claimants. While they may not be eligible to apply for judicial
confirmation of imperfect title under Section 48(b) of CA No. 141, as amended, this does not denote their
automatic ouster from the residential, commercial, and other areas they possess now classified as
agricultural. Neither will this mean the loss of their substantial investments on their occupied alienable
lands. Lack of title does not necessarily mean lack of right to possess.

For one thing, those with lawful possession may claim good faith as builders of improvements. They can
take steps to preserve or protect their possession. For another, they may look into other modes of
applying for original registration of title, such as by homestead131 or sales patent,132 subject to the
conditions imposed by law.

More realistically, Congress may enact a law to entitle private claimants to acquire title to their occupied
lots or to exempt them from certain requirements under the present land laws. There is one such
bill133 now pending in the House of Representatives. Whether that bill or a similar bill will become a law is
for Congress to decide.

In issuing Proclamation No. 1064, the government has taken the step necessary to open up the island to
private ownership. This gesture may not be sufficient to appease some sectors which view the
classification of the island partially into a forest reserve as absurd. That the island is no longer overrun by
trees, however, does not becloud the vision to protect its remaining forest cover and to strike a healthy
balance between progress and ecology. Ecological conservation is as important as economic progress.

To be sure, forest lands are fundamental to our nation’s survival. Their promotion and protection are not
just fancy rhetoric for politicians and activists. These are needs that become more urgent as destruction
of our environment gets prevalent and difficult to control. As aptly observed by Justice Conrado Sanchez
in 1968 in Director of Forestry v. Munoz:134

The view this Court takes of the cases at bar is but in adherence to public policy that should be followed
with respect to forest lands. Many have written much, and many more have spoken, and quite often,
about the pressing need for forest preservation, conservation, protection, development and
reforestation. Not without justification. For, forests constitute a vital segment of any country's natural
resources. It is of common knowledge by now that absence of the necessary green cover on our lands
produces a number of adverse or ill effects of serious proportions. Without the trees, watersheds dry up;
rivers and lakes which they supply are emptied of their contents. The fish disappear. Denuded areas
become dust bowls. As waterfalls cease to function, so will hydroelectric plants. With the rains, the fertile
topsoil is washed away; geological erosion results. With erosion come the dreaded floods that wreak
havoc and destruction to property – crops, livestock, houses, and highways – not to mention precious
human lives. Indeed, the foregoing observations should be written down in a lumberman’s decalogue.135

WHEREFORE, judgment is rendered as follows:

1. The petition for certiorari in G.R. No. 167707 is GRANTED and the Court of Appeals Decision in CA-G.R.
CV No. 71118 REVERSED AND SET ASIDE.

2. The petition for certiorari in G.R. No. 173775 is DISMISSED for lack of merit.
SO ORDERED.

Footnotes

19
Id.; PTA Circular No. 3-82, Rule VIII, Sec. 1(3) states:

No trees in forested private lands may be cut without prior authority from the PTA.
All forested areas in public lands are declared forest reserves.

20
Sec. 87. If all the lands included in the proclamation of the President are not registered
under the Land Registration Act, the Solicitor-General, if requested to do so by the Secretary of
Agriculture and Natural Resources, shall proceed in accordance with the provisions of section
fifty-three of this Act.

21
Sec. 53. It shall be lawful for the Director of Lands, whenever in the opinion of the President
the public interests shall require it, to cause to be filed in the proper Court of First Instance,
through the Solicitor General or the officer acting in his stead, a petition against the holder,
claimant, possessor, or occupant of any land who shall not have voluntarily come in under the
provisions of this chapter or of the Land Registration Act, stating in substance that the title of
such holder, claimant, possessor, or occupant is open to discussion; or that the boundaries of
any such land which has not been brought into court as aforesaid are open to question; or that
it is advisable that the title to such land be settled and adjudicated, and praying that the title to
any such land or the boundaries thereof or the right to occupancy thereof be settled and
adjudicated. The judicial proceedings under this section shall be in accordance with the laws on
adjudication of title in cadastral proceedings.

63
The provisions relevant to the definition are:

Sec. 13. That the Government of the Philippine Islands, subject to the provisions of
this Act and except as herein provided, shall classify according to its agricultural
character and productiveness, and shall immediately make rules and regulations for
the lease, sale, or other disposition of the public lands other than timber or mineral
lands, but such rules and regulations shall not go into effect or have the force of law
until they have received the approval of the President, and when approved by the
President they shall be submitted by him to Congress at the beginning of the next
ensuing session thereof and unless disapproved or amended by Congress at said
session they shall at the close of such period have the force and effect of law in the
Philippine Islands: Provided, That a single homestead entry shall not exceed sixteen
hectares in extent.

Sec. 14. That the Government of the Philippine Islands is hereby authorized and
empowered to enact rules and regulations and to prescribe terms and conditions to
enable persons to perfect their title to public lands in said Islands, who, prior to the
transfer of sovereignty from Spain to the United States, had fulfilled all or some of
the conditions required by the Spanish laws and royal decrees of the Kingdom of
Spain for the acquisition of legal title thereto, yet failed to secure conveyance of
title; and the Philippine Commission is authorized to issue patents, without
compensation, to any native of said Islands, conveying title to any tract of land not
more than sixteen hectares in extent, which were public lands and had been
actually occupied by such native or his ancestors prior to and on the thirteenth of
August, eighteen hundred and ninety-eight.
 Sec. 15. That the Government of the Philippine Islands is hereby authorized and
empowered, on such terms as it may prescribe, by general legislation, to provide for
the granting or sale and conveyance to actual occupants and settlers and other
citizens of said Islands such parts and portions of the public domain, other than
timber and mineral lands, of the United States in said Islands as it may deem wise,
not exceeding sixteen hectares to any one person and for the sale and conveyance
of not more than one thousand and twenty-four hectares to any corporation or
association of persons: Provided, That the grant or sale of such lands, whether the
purchase price be paid at once or in partial payments, shall be conditioned upon
actual and continued occupancy, improvement, and cultivation of the premises sold
for a period of not less than five years, during which time the purchaser or grantee
can not alienate or encumber said land or the title thereto; but such restriction shall
not apply to transfers of rights and title of inheritance under the laws for the
distribution of the estates of decedents.

106
Act No. 926, Sec. 54, par. 6 states:

SEC. 54. The following described persons or their legal successors in right, occupying
lands in the Philippines, or claiming to own any such land or interest therein but
whose titles to such land have not been perfected may apply to the Court of Land
Registration of the Philippine Islands for confirmation of their claims and the
issuance of a certificate of title therefor to wit –

xxxx

(6) All persons who by themselves or their predecessors in interest have been in the
open, continuous exclusive, and notorious possession and occupation of agricultural
public lands, as defined by said Act of Congress of July first, nineteen hundred and
two, under a bona fide claim of ownership except as against the Government, for a
period of ten years next preceding the taking effect of this act, except when
prevented by war, or force majeure, shall be conclusively presumed to have
performed all the conditions essential to a Government grant and to have received
the same, and shall be entitled to a certificate of title to such land under the
provisions of this chapter.

117
Sec. 3 provides:

Establishment of or low-density human settlements in private lands, or subdivisions, if any,

subject to prior approval by the Ministry of Human Settlements, PTA and local building
officials; Provided, that no structures shall be constructed within 30 meters from the
shorelines.

118
Sec. 5 states:

Subsistence farming, in areas declared as alienable and disposable by the Bureau of Forest
Development.

120
SEC. 6. The President, upon recommendation of the Secretary of Agriculture and Commerce
(now the Secretary of the Department of Environment and Natural Resources), shall from time
to time classify lands of the public domain into –
 (a) Alienable or disposable,

(b) Timber, and

(c) Mineral lands,

And may at any time and in a like manner transfer such lands from one class to
another, for the purposes of their administration and disposition.

SEC. 7. For the purposes of administration and disposition of alienable or disposable

public lands, the President, upon recommendation by the Secretary of Agriculture
and Commerce (now the Secretary of the Department of Environment and Natural
Resources), shall from time to time declare what lands are open to disposition or
concession under this Act.

Cariño vs. Insular Government, 41 Phil 935 (1909)

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 2869 March 25, 1907

MATEO CARIÑO, petitioner-appellant,

vs.
THE INSULAR GOVERNMENT, respondent-appellee.

Coudert Brothers for appellant.

Office of the Solicitor-General Araneta for appellee.

ARELLANO, C.J.:

Mateo Cariño, the appellant herein, on the 23d of February, 1904, filed his petition in the Court of Land
Registration praying that there be granted to him title to a parcel of land consisting of 40 hectares, 1 are,
and 13 centares, and situated in the town of Baguio, Province of Benguet, together with a house erected
thereon and constructed of wood and roofed with rimo, and bounded as follows: On the north, in lines
running 1,048 metes and 20 decimeters with the lands of Sepa Cariño, H. Phelps Whitmarsh, and Calsi; on
the east, in lines running 991 meters and 50 decimeters with the land of Kuidno, Esteban Gonzales, and of
the Civil Government; on the south, in lines of 115 meters and 60 decimeters, with the lands of Talaca;
and on the west, in lines running 982 meters and 20 decimeters, with the lands of Sisco Cariño and
Mayengmeng.

By order of the court the hearing of this petition, No. 561, and that of Antonio Rebollo and Vicente
Valpiedad filed under No. 834, were heard together for the reason that the latter petition claimed a small
portion of land included in the parcel set out in the former petition.
The Insular Government opposed the granting of these petitions, alleging that the whole parcel of land is
public property of the Government and that the same was never acquired in any manner or through any
title of egresionfrom the State.

After trial, and the hearing of documentary and oral proof, the court of Land Registration rendered its
judgment in these terms:

Therefore the court finds that Cariño and his predecessors have not possessed exclusively and
adversely any part of the said property prior to the date on which Cariño constructed the
house now there — that is to say, for the years 1897 and 1898, and Cariño held possession for
some years afterwards of but a part of the property to which he claims title. Both petitions are
dismissed and the property in question is adjudged to be public land. (Bill of exceptions, p. 15.)

The conclusions arrived at the set forth in definite terms in the decision of the court below are the
following:

From the testimony given by Cariño as well as from that of several of the witnesses for the
Government it is deduced, that in or about the year 1884 Cariño erected and utilized as a
domicile a house on the property situated to the north of that property now in question,
property which, according to the plan attached to expediente No. 561, appears to be property
belonging to Donaldson Sim; that during the year 1893 Cariño sold said house to one Cristobal
Ramos, who in turn sold the same to Donaldson Sim, moving to and living on the adjoining
property, which appears on the plan aforesaid to be the property of H. Phelps Whitmarsh, a
place where the father and the grandfather of his wife, that is to say, Ortega and Minse, had
lived . . ..

In or about the years 1898 Cariño abandoned the property of Whitmarsh and located on the
property described in the plan attached to expediente No. 561, having constructed a house
thereon in which he now lives, and which house is situated in the center of the property, as is
indicated on the plan; and since which time he has undoubtedly occupied some portion of the
property now claimed by him. (Bill of exceptions, pp. 11 and 12.)

1. Therefore it is evident that this court can not decree the registration of all of the superficial extension
of the land described in the petition and as appears on the plan filed herein, such extension containing 40
hectares, 1 are, and 13 centares, inasmuch as the documentary evidence accompanying the petition is
conclusive proof against the petitioners; this documentary proof consists of a possessory information
under date of March 7, 1901, and registered on the 11th day of the same month and year; and, according
to such possessory information, the land therein described contains an extension of only 28 hectares
limited by "the country road to the barrio of Pias," a road appearing on the plan now presented and
cutting the land, as might be said, in half, or running through its center from north to south, a
considerable extension of land remaining on the other side of the said road, the west side, and which
could not have been included in the possessory information mentioned.

2. As has been shown during the trial of this case, this land, of which mention is made in said possessory
information, and upon which is situated the house now actually occupied by the petitioner, all of which is
set forth as argument as to the possession in the judgment, is "used for pasture and sowing," and belongs
to the class called public lands.

3. Under the express provisions of law, a parcel of land, being of common origin, presumptively belonged
to the State during its sovereignty, and, in order to perfect the legitimate acquisition of such land by
private persons, it was necessary that the possession of the same pass from the State. And there is no
evidence or proof of title of egresionof this land from the domain of the Spanish Government, nor is there
any possessory information equivalent to title by composicion or under agreement. 4, The possessory
information filed herein is not the title to property authorized in substitution for that of adjustment by the
royal decree of February 13, 1894, this being the last law or legal disposition of the former sovereignty
applicable to the present subject-matter of common lands: First, for the reason that the land referred to
herein is not covered nor does it come within any one of the three conditions required by article 19 of the
said royal decree, to wit, that the land has been in an uninterrupted state of cultivation during a period of
six years last past; or that the same has been possessed without interruption during a period of twelve
years and has been in a state of cultivation up to the date of the information and during the three years
immediately preceding such information; or that such land had been possessed openly without
interruption during a period of thirty or more years, notwithstanding the land had not been cultivated;
nor is it necessary to refer to the testimony given by the two witnesses to the possessory information for
the following reason: Second, because the possessory information authorized by said royal decree or last
legal disposition of the Spanish Government, as title or for the purpose of acquiring actual proprietary
right, equivalent to that of adjustment with the Spanish Government and required and necessary at all
times until the publication of said royal decree was limited in time to one year, in accordance with article
21, which is as follows: " A period of one year, not to be extended, is allowed to verify the possessory
informations which are referred to in articles 19 and 20. After the expiration of this period of the right of
the cultivators and persons in possession to obtain gratuitous title thereto lapses and the land together
with full possession reverts to the state, or, as the case may be, to the community, and the said
possessors and cultivators or their assigns would simply have rights under universal or general title of
average in the event that the land is sold within a period of five years immediately following the
cancellation. The possessors not included under this chapter can only acquire by time the ownership and
title to unappropriated or royal lands in accordance with common law."

5. In accordance with the preceding provisions, the right that remained to Cariño, if it be certain that he
was the true possessor of the land in question, was the right of average in case the Government or State
could have sold the same within the period of five years immediately following for example, if the
denouncement of purchase had been carried out by Felipe Zafra or any other person, as appears from the
record of the trial of the case. Aside from this right, in such event, his possession as attested in the
possessory information herein could not, in accordance with common law, go to show any right of
ownership until after the expiration of twenty years from the expiration of twenty years from the
verification and registry of the same in conformity with the provisions of article 393 of the Mortgage Law
and other conditions prescribe by this law.

6. The right of possession in accordance with common law — that is to say, civil law — remains at all times
subordinate to the Spanish administrative law, inasmuch as it could only be of force when pertaining to
royal transferable or alienable lands, which condition and the determination thereof is reversed to the
government, which classified and designated the royal alienable lands for the purpose of distinguishing
them from those lands strictly public, and from forestry lands which could at no time pass to private
ownership nor be acquired through time even after the said royal decree of February 13, 1894.

7. The advent of the new sovereignty necessarily brought a new method of dealing with lands and
particularly as to the classification and manner of transfer and acquisition of royal or common lands then
appropriated, which were thenceforth merely called public lands, the alienation of which was reserved to
the Government, in accordance with section 12 and 13 of the act of Congress of July 1, 1902, 1 and in
conformity with other laws enacted under this act of Congress by the Philippine Commission prescribing
rules for the execution thereof, one of which is Act No. 648, 2herein mentioned by the petitioner, in
connection with Act No. 627,3 which appears to be the law upon which the petition herein is founded.

8. Section 6 of Act No. 627 admits prescription, in accordance with the provisions contained in Act No.
190, as a basis for obtaining the right of ownership. "The petitioners claims title under the period of
prescription of ten years established by that act, as well as by reason of his occupancy and use thereof
from time immemorial." (Allegation 1.) But said act admits such prescription for the purpose of obtaining
title and ownership to lands "not exceeding more that sixteen hectares in extent." (Sec. 6 of said act.) The
land claimed by Cariño is 40 hectares in extent, if we take into consideration his petition, or an extension
of 28 hectares, according to the possessory information, the only thing that can be considered. Therefore,
it follows that the judgment denying the petition herein and now appealed from was strictly in
accordance with the law invoked herein.

9. And of the 28 hectares of land as set out in the possessory information, one part of same, according to
the testimony of Cariño, belongs to Vicente Valpiedad, the extent of which is not determined. From all of
which it follows that the precise extent has not been determined in the trial of this case on which
judgment might be based in the event that the judgment and title be declared in favor of the petitioner,
Mateo Cariño. And we should not lose sight of the fact that, considering the intention of Congress in
granting ownership and title to 16 hectares, that Mateo Cariño and his children have already exceeded
such amount in various acquirements of lands, all of which is shown in different cases decided by the said
Court of Land Registration, donations or gifts of land that could only have been made efficacious as to the
conveyance thereof with the assistance of these new laws.

By reason of the findings set forth it is clearly seen that the court below did not err:

1. In finding that Mateo Cariño and those from whom he claims his right had not possessed
and claimed as owners the lands in question since time immemorial;

2. In finding that the land in question did not belong to the petitioner, but that, on the
contrary, it was the property of the Government. (Allegation 21.)

Wherefore, the judgment appealed from is affirmed with the costs of this instance against the appellant.
After the expiration of twenty days from the notification of this decision let judgment be entered in
accordance herewith, and ten days thereafter let the case be remanded to the court from whence it came
for proper action. So ordered.

Torres, Mapa, Willard, and Tracey, JJ., concur.

Johnson, J., reserves his vote.

Cruz vs NCIP, G.R. No.135385, Dec 6, 2000; read opinion of Justice Puno

EN BANC

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.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE CONSERVATION OF NATURAL
RESOURCES, INC., intervenor.

RESOLUTION

PER CURIAM:

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.

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 State’s 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 involving ancestral domains and
ancestral lands on the ground that these provisions violate the due process clause of the Constitution.4

These provisions are:

"(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 President’s 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 directing 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 State’s constitutional mandate to
control and supervise the exploration, development, utilization and conservation of Philippine
natural resources."7

After due deliberation on the petition, the members of the Court voted as follows:

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 large-scale 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.

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.

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

4
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."
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 'past-
dependent,' 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. It 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

B. Valenton v. Murciano

C. The Public Land Acts and the Torrens System

D. The Philippine Constitutions

II. The Indigenous Peoples Rights Act (IPRA).

A. Indigenous Peoples

1. Indigenous Peoples: Their History

2. Their Concept of Land

III. The IPRA is a Novel Piece of Legislation.

 A. Legislative History

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) Cariño v. Insular Government

(b) Indian Title to land

(c) Why the Cariño 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.

1. The rights of ICCs/IPs over their ancestral domains and lands

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.

(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.

(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 regalia is 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 Spaniards, 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, the Ordenanza 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 all 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 which 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."17 Valenton 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." In 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

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.28There 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 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."

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:

- 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

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 self-governance 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 powers.39 The NCIP's
decisions may be appealed to the Court of Appeals by a petition for review.

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 ₱100,000.00 to ₱500,000.00 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:

"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, legislator 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.62The 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. The reduccion, 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 non-Filipinos.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.78 Their 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 exploited 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

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 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 non-Christian 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 the Commission 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.86Knowledge 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:

"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, ownership 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.104 Moreover, 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 Bills- Senate Bill No. 1728 and House Bill
No. 9125.

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:

"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.

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 Cariño v.
Insular Government where:

"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

Following Cariño, 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 Cariño 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) by native 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 thus indisputably 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.

(a) Cariño v. Insular Government129

The concept of native title in the IPRA was taken from the 1909 case of Cariño v. Insular
Government.130 Cariñofirmly established a concept of private land title that existed irrespective of any
royal grant from the State.

In 1903, Don Mateo Cariño, 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. Cariño 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, Cariño 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 reservation133 was proclaimed over his
land and, shortly thereafter, a military detachment was detailed on the property with orders to keep
cattle and trespassers, including Cariño, off the land.134

In 1904, the land registration court granted Cariño'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 Cariño's application. The Philippine Supreme
Court135 affirmed the C.F.I. by applying the Valenton ruling. Cariño took the case to the U.S. Supreme
Court.136 On one hand, the Philippine government invoked the Regalian doctrine and contended that
Cariño 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. Cariño, on the other, asserted that he was the
absolute owner of the land 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.

The Cariño 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:

"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

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 discourse" and it was observed that titles were admitted
to exist beyond the powers of the Crown, viz:

"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 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 Cariño and ordered the registration of the 148 hectares in Baguio
Municipality in his name.144

Examining Cariño 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 Cariño decision. 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 Cariño extensively and used the term "native title"
to refer to Cariño'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 Cariño "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

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:

"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 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.

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:
"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 assent 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-à-vis American Jurisprudence on aboriginal title will depend on the peculiar facts of
each case.

(c) Why the Cariño doctrine is unique

In the Philippines, the concept of native title first upheld in Cariño 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. Cariño is the only case that specifically and categorically recognizes native title.
The long line of cases citing Cariño did not touch on native title and the private character of ancestral
domains and lands. Cariñowas 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 Cariño was cited to support the applicant's claim of acquisitive
prescription under the said Act.

All these years, Cariño 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 citizens 194 and members
of the national cultural minorities195 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 that ancestral 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-in-interest, 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 individually-owned 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 immemorial197 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.

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 the civil 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 not the owner of any real property secured or
disposable under the provision of the Public Land Law. 203

x x x.

"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 co-ownership 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 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;"

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 ancestral 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 ancestral lands, 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:

"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.

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;

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.

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,224joint 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
includes ownership, 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 or timber, wildlife, floraand 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 resourceswithin 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

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.

(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
the harvesting, 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 twenty-five (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 non-member and
members of the ICCs/IPs.

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.

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 co-production, 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.

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 always under 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 field-based 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.

Footnotes
3
Dominium is distinguished from imperium which is the government authority possessed by
the state expressed in the concept of sovereignty- Lee Hong Hok v. David, 48 SCRA 372, 377
[1972].

5
Antonio H. Noblejas, Land Titles and Deeds, p. 5 [1986]; these grants were better known as
repartimientos and encomiendas. Repartimientos were handouts to the military as fitting
reward for their services to the Spanish crown. The encomiendas were given to Spaniards to
administer and develop with the right to receive and enjoy for themselves the tributes of the
natives assigned to them.- Ponce, supra, p. 12, citing Benitez, History of the Philippines, pp.
125-126.

14
Id. at 542-543. These comments by the court are clear expressions of the concept that Crown
holdings embraced both imperium and dominium—Ma. Lourdes Aranal-Sereno and Roan
Libarios, The Interface Between National Land Law and Kalinga Land Law, 58 P.L.J. 420, 423
[1983].

18
Id. at 553-554; Valenton was applied in Cansino v. Valdez, 6 Phil. 320 [1906]; Tiglao v. Insular
Government, 7 Phil. 80 [1906]; and Cariño v. Insular Government, 7 Phil. 132 [1906]; all
decided by the Philippine Supreme Court.

42
Guide to R.A. 8371, published by the Coalition for Ips Rights and ancestral Domains in
cooperation with the ILO and Bilance-Asia Department, p. 4 [1999]—hereinafter referred to
as Guide to R.A. 8371.

43
Taken from the list of IPs sbmitted by Rep. Andolana to the house of Representatives during
the deliberations on H.B. No. 9125—Interpellations of Aug. 20, 1997, pp. 00086-00095. "lost
tribes" such as the Lutangan and Tatang have not been included.

44
How these people came to the Philippines may be explained by two theories. One view,
generally linked to Professor Otley H. Beyer, suggests the "wave theory"—a series of arrivals in
the archipelago bringing in different types and levels of culture. The Negritos, dark-skinned
pygmies, came between 25,000 to 30,000 B.C. Their cultural remains are preserved by the
Negrito-type Filipinos found in Luzon, Visayas and Mindanao. Their relatively inferior culture
did not enable them to overcome the pressures from the second wave of people, the
Indonesians A and B who came in 5,000 and 3,500 B.C. They are represented today by the
Kalinga, Gaddang, Isneg, Mangyan, Tagbanua, Manobo, Mandaya, Subanon, and Sama. The
first group was pushed inland as the second occupied the coastal and downriver settlements.
The last wave involved Malay migrations between 500 B.C. and 1,500 A.D. they had a more
advanced culture based on metal age technology. They are represented by the Christianized
and Islamized Filipinos who pushed the Indonesian groups inland and occupied much of the
coastal, lowland and downstream areas.

A second view is postulated by Robert Fox, F. Landa Jocana, Alfredo Evangelista,

and Jesus Peralta. Jocano maintains that the Negritos, Indonesians and Malays
stand co-equal as ethnic groups without any one being dominant, racially or
culturally. The geographic distribution of the ethno-linguistic groups, which shows
overlapping of otherwise similar racial strains in both upland and lowland cultures
or coastal and inland communities, suggests a random and unstructured advent of
different kinds of groups in the archipelago—Samuel K. Tan, A History of the
Philippines, published by the Manila Studies Association, Inc. and the Philippine
National Historical society, Inc., pp. 33-34 [1997]; Teodoro A. Agoncillo, History of
the Filipino People, p. 21 [1990].
46
Onofre D. Corpuz, The Roots of the Filipino Nation, Philippine Centennial (1898-1998)
Edition, vol. 1, p. 13, Aklahi foundation, Inc. [1989]. It was in 800-1,000 A.D. that the Ifugaos of
Northern Luzon built the rice terraces—Id. at 37.

54
Rafael Iriarte, History of the Judicial System, the Philippine Indigenous Era Prior to 1565,
unpublished work submitted as entry to the Centennial Essay-Writing Contest sponsored by
the National Centennial Commission and the Supreme Court in 1997, p. 103, citing Perfecto V.
Fernandez, Customs Laws in Pre-Conquest Philippines, UP Law Center, p. 10 [1976].

56
Amelia Alonzo, The History of the Judicial System in the Philippines, Indigenous Era Prior to
1565,unpublished work submitted as entry to the Centennial Essay-Writing Contest sponsored
by the National Centennial Commission and the Supreme Court in 1997.

64
Cacho v. Government of the P.I., 28 Phil. 616, 625-627 [1914]; see also Ponce, The Philippine
Torrens System, pp. 11-12 [1964]. In Philippine pre-colonial history, there was only one
recorded transaction on the purchase of land. The Maragtas Code tells us of the purchase of
Panay Island by ten Bornean datus led by Datu Puti from the Atis under Marikudo in the 13th
century. The purchase price for the island was a gold salakot and a long gold necklace –
Agoncillo, supra, at 25.

74
Id., N.B. But see discussion in Cariño v. Insular Government, infra, where the United States
Supreme Court found that the Spanish decrees in the Philippines appeared to recognize that
the natives owned some land. Whether in the implementation of these decrees the natives’
ancestral rights to land were actually respected was not discussed by the U.S. Supreme
Court; see also Note 131, infra.

81
Memorandum of the Secretary of the Interior, quoted in Rubi v. Provincial Board of Mindoro,
39 Phil. 660, 714 [1919]; also cited in People v. Cayat, supra, at 17-18.

83
Charles Macdonald, Indigenous Peoples of the Philippines: Between Segregation and
Integration, Indigenous Peoples of Asia, p. 348, ed. by R.H. Barnes, A. Gray and B. Kingsburry,
pub. by Association for Asian Studies [1995]. The BNCT made a Bontok and subanon
ethnography, a history of Sulu genealogy, and a compilation on unhispanized peoples in
northern Luzon.—Owen J. Lynch, Jr., The Philippine Colonial Dichotomy: Attraction and
Disenfranchisement, 63 P. L. J. 139-140 [1988].

87
The construction of the Ambuklao and Binga dams in the 1950’s resulted in the eviction of
hundreds of Ibaloi families – Cerilo Rico S. Abelardo, Ancestral Domain Rights: Issues,
Responses, and Recommendations, Ateneo Law Journal, vol. 38, No. 1, p. 92 [1993].

90
The PANAMIN, however, concentrated funds and resources on image-building, publicity, and
impact projects. In Mindanao, the agency resorted to a policy of forced resettlement on
reservations, militarization and intimidation- MacDonald, Indigenous Peoples of the Philippines,
supra, at 349-350.

91
No occupancy certificates were issued, however, because the government failed to release
the decree’s implementing rules and regulations- Abelardo, supra, at 120-121.

95
E.O. Nos. 122-A, 122-B and 122-C. The preamble of E.O. No. 122-B states:
 "Believing that the new government is committed to formulate more vigorous
policies, plans, programs, and projects for tribal Filipinos, otherwise known as
Indigenous Cultural Communities, taking into consideration their communal
aspirations, customs, traditions, beliefs, and interests, in order to promote and
preserve their rich cultural heritage and insure their participation in the country’s
development for national unity; xxx"

99
Cordillera Studies Program, Land Use and Ownership and Public Policy in the Cordillera, 29-
30 [n.d.]; also cited in Dante B. Gatmaytan, Ancestral Domain Recognition in the Philippines:
Trends in Jurisprudence and Legislation, 5 Phil. Nat. Res. L.J. No. 1, pp. 47-48 [1992].

100
Abelardo, Ancestral Domain Rights, supra, at 98-99, citing Ponciano L. Bennagen, Indigenous
Attitudes Toward Land and Natural Resources of Tribal Filipinos, 31 National Council of
Churches in the Philippines Newsletter, Oct.-Dec. 1991, at 4-9.

107
Senate Bill No. 1728 was co-sponsored by Senator Macapagal-Arroyo and co-authored by
Senators Alvarez, Magsaysay, Revilla, Mercado, Enrile, Honasan, Tatad, Maceda, Shahani,
Osmena and Romulo.

The Eighth Congress, through Senators Rasul, Estrada and Romulo filed a bill to
operationalize the mandate of the 1987 Constitution on indigenous peoples. The
bill was reported out, sponsored an interpellated but never enacted into law. In the
Ninth Congress, the bill filed by Senators Rasul and Macapagal-Arroyo was never
sponsored and deliberated upon in the floor.

131
It was the practice of the Spanish colonial government not to issue titles to Igorots—Owen
J. Lynch, Jr., Invisible Peoples and a Hidden Agenda: The Origins of Contemporary Philippine
Land Laws (1900-1913), 63 P.L.J. 249, 288 [1988], citing the testimony of Benguet Provincial
Governnor William F. Pack, Records at 47, Cariño.

136
In 1901, Cariño had entered into a promissory agreement with a U.S. merchant in Manila.
The note obliged Cariño to sell the land at issue "as soon as he obtains from the Government
of the United States, or its representatives in the Philippines, real and definitive title." See
Lynch, Invisible Peoples, supra, at 290, citing Government’s Exhibit G, Records, at 137-138,
Cariño.

142
Aranal-Sereno and Libarios, The Interface Between Kalinga Land Law, supra at 428-This
artcile was one of those circulated among the Constitutional Commissioners in the formulation
of Sec. 5, Article XII of the 1987 Constitution (4 Record of the Constitutional Commission 33).

144
Certificate of Title No. 2 covering the 148 hectares of Baguio Municipality was issued not in
the name of Cariño who died on June 6, 1908, but to his lawyers John Hausserman and Charles
Cohn and his attorney-in-fact Metcalf Clarke. Hausserman, Cohn and Clarke sold the land to
the U.S. Government in a Deed of Quitclaim-Richel B. Langit, Igorot Descendants Claim Rights
to Camp John Hay, Manila Times, p. 1, Jan. 12, 1998.

147
From 1987 to 1988, Prof. Lynch allowed the P.L.J. to publish parts of his doctoral dissertation
at the Yale Law School entitled "Invisible Peoples: A History of Philippine Land Law." Please see
the Legal Bases of Philippine Colonial Sovereignty: An Inquiry, 62 P.L.J. 279 [1987]; Land Rights,
Land Laws and Land Usurpation: The Spanish Era (1568-1898), 63 P.L.J. 82 [1988]; The Colonial
Dichotomy: Attraction and Disenfranchisement, 63 P.L.J. 112; Invisible Peoples and a Hidden
Agenda: The Origins of Contemporary Philippine Land Laws (1900-1913), 63 P.L.J. 249.

148
"Native title" is a common law recognition of pre-existing aboriginal land interests in
Autsralia- Maureen Tehan, Customary Title, Heritage Protection, and Property Rights in
Australia: Emerging Patterns of Land Use in the Post-Mabo Era, 7 Pacific Rim Law & Policy
Journal, No. 3, p. 765 [June 1998].

155
There are 3 kinds of Indian reservations: (a) those created by treaties prior to 1871; (b) those
created by acts of Congress since 1871; and (c) those made by Executive Orders where the
President has set apart public lands for the use of the Indians in order to keep them within a
certain territory- 42 C.J.S., Indians, Sec. 29 citing Sioux Tribe of Indians v. U.S. 94 Ct. Cl. 150,
170, certiorari granted 62 S. Ct. 631, 315 U.S. 790, 86 L. Ed. 1194, affirmed 62 S. Ct. 1095, 316
U.S. 317, 86 L. Ed. 1501. It is observed that the first two kinds may include lands possessed by
aboriginal title. The last kind covers Indian reservations proper.

Until 1871, Indian tribes were recognized by the United States as possessing the
attributes of nations to the extent that treaties were made with them. In that year,
however, Congress, by statute, declared its intention thereafter to make the Indian
tribes amenable directly to the power and authority of the United States by the
immediate exercise of its legislative power over them, instead of by treaty. Since
then, Indian affairs have been regulated by acts if Congress and by contracts with
the Indian tribes practically amounting to treaties- 41 Am Jur 2d, Indians, Sec. 55
[1995 ed].

169
The title of the government to Indian lands, the naked fee, is a sovereign title, the
government having no landlord from whom it holds the fee- Shoshone Tribe of Indians of Wind
River Reservation in Wyoming v. U.S., 85 Ct. Cl. 331, certiorari granted U.S. v. Shoshone Tribe
of Indians, 58 S. Ct. 609, 303 U.S. 629, 82 L. Ed. 1090, affirmed 58 S. Ct. 794, 304 U.S. 111, 82 L.
Ed. 1213, 1218-1219 [1938].

175
For compensation under the Indian Claims Commission Act, the proof of aboriginal title rests
on actual, exclusive and continuous use and occupancy for a long time prior to the loss of the
property. (The Indian Claims Commission Act awards compensation to Indians whose
aboriginal titles were extinguished by the government through military conquest, creation of a
reservation, forced confinement of Indians and removal of Indians from certain portions of the
land an the designation of Indian land into forest preserve, grazing district, etc.) - Aboriginal
Title to Indian Lands, supra, at Secs. 2[a], 3[a], pp. 431, 433, 437.

178
An allotment of Indian land contains restrictions on alienation of the land. These restrictions
extend to a devise of the land by will- Missouri, K. & T.R. Co. v. U.S., 235 U.S. 37, 59 L. Ed. 116,.
35 S. Ct. 6 [1914]; A railroad land grant that falls within Indian land is null and void- Northern P.
R. Co. v. U.S., 227 U.S. 355, 57 L.Ed. 544,33 S. Ct. 368 [1913]; Portions of Indian land necessary
for a railroad right of way were, by the terms of the treaty, declared "public land," implying
that land beyond the right of way was private- Kindred v. Union P.R. Co., 225 U.S. 582, 56 L. Ed.
1216, 32 S. Ct. 780 [1912]; see also 41 Am Jur 2d, Indians, Sec. 58 [1995 ed].

182
North American Indians have made much progress in establishing a relationship with the
national government and developing their own laws. Some have their own government-
recognized constitutions. Usually the recognition of Indian tribes depends on whether the tribe
has a reservation. North American tribes have reached such an advanced stage that the main
issues today evolve around complex jurisdictional and litigation matters. Tribes have acquired
the status of sovereign nations within another nation, possessing the right to change and
grow- Jose Paulo Kastrup, The Internationalization of Indigenous Rights from the Environmental
and Human Rights Perspective, Texas International Law Journal, vol. 32: 97, 104 [1997].

184
Dante Gatmaytan, Ancestral Domain Recognition in the Philippines: Trends in Jurisprudence
and Legislation, 5 Phil. Nat. Res. L.J. No. 1, pp. 43, 40 [Aug. 1992]; see also Tee Hit Ton
Indians v. U.S., supra, at 320.

186
D. Gatmaytan, supra, citing Churchill, The Earth is Our Mother: Struggles for American Indian
Land and Liberation in the Contemporary United States, The State of Native America:
Genocide, Colonization and Resistance 139 (M. Jaimes 1992); and Indian Law Resource Center,
United States Denial of Indian Property Rights: A Study in Lawless Power and Racial
Discrimination, Rethinking Indian Law 15 (National Lawyers Guild, Committee on Native
American Struggles 1982).

187
Id., Note 28, stating that some earlier decisions of the U.S. Supreme Court have held that
Congress is subject to the strictures of the Constitution in dealing with Indians. When an Indian
property is taken for non-Indian use, the U.S. government is liable for payment of
compensation, and an uncompensated taking may be enjoined. F. Cohen, Handbook of Federal
Indian Law 217 [1982], citing Shoshone Tribe v. U.S. 299 U.S. 476 [1937]; Choate v. Trapp, 224
U.S. 665 [1912]; and Lane v. Pueblo of Santa Rosa, 249 U.S. 110 [1919].

197
"Time immemorial" refers "to a period of time when as far back as memory can go, certain
ICCs/Ips are known to have occupied, possessed in the concept of owner, and utilized a
defined territory devolved to them, by operation of customary law or inherited from their
ancestors, in accordance with their customs and traditions." (Sec. 3 [p], IPRA).

204
Words in bold were amendments introduced by R.A. 3872 on June 18, 1964. On January 25,
1977, however, Sec. 48 [b] and 48 [c] were further amended by P.D. 1073 stating that these
provisions on cultural minorities apply only to alienable and disposable lands of the public
domain- Please see Republic v. CA and Paran, 201 SCRA 1, 10-11 [1991].

209
Sec. 55, IPRA provides:

"Sec. 55. Communal rights.- Subject to Section 56 hereof, areas within the ancestral
domains, whether delineated or not, shall be presumed to be communally held:
provided, That communal rights under this Act shall not be construed as co-
ownership as provided in Republic Act No. 386, otherwise known as the New Civil
Code."

217
Customary law is recognized by the Local Government Code of 1991 in solving disputes
among members of the indigenous communities, viz:

"Sec. 412 (c) Conciliation among members of indigenous cultural communities.- The
customs and traditions of indigenous cultural communities shall be applied in
settling disputes between members of the cultural communities."

218
Law writes custom into contract-Hongkong & Shanghai Bank v. Peters, 16 Phil. 284 [1910].

The Civil Code provides:

 "Art. 11. Customs which are contrary to law, public order or public policy shall not
be countenanced."

"Art. 12. A custom must be proved as a fact, according to the rules of evidence."

219
Article 78 on marriages between Mohammedans or pagans who live in the non-Christian
provinces- this is now Art. 33 of the Family Code; Art. 118, now Art. 74 of the Family Code on
property relations between spouses; Art. 577 on the usufructuary of woodland; Art. 657 on
easement of right of way for passage of livestock; Arts. 678, 1315, 1376, 1522, 1564 and 1577.
Please see Aquino, Civil Code, vol. 1, p. 25.

220
Castle Bros. v. Gutierrez Hermanos, 11 Phil. 629 [1908]; In Re: Firm Name of Ozaeta Romulo,
92 SCRA 1 [1979]; Yao Kee v. Sy-Gonzales, 167 SCRA 736 [1988]; Please see Aquino, Civil Code,
vol. 1, p. 26 for a list of other cases.

221
This situation is analogous to the Muslim code or the Code of Muslim Personal Laws (P.D.
1083) which took effect on February 4, 1977 despite the effectivity of the Civil Code and the
Family Code. P.D. 1083 governs persons, family relations and succession among Muslims, the
adjudication and settlement of disputes, the organization of the Shari’a courts, etc.

222
Mariflor P. Pagusara, The Kalinga Ili: Cultural-Ecological Reflections on Indigenous Theora
and Praxis of Man-Nature Relationship, Dakami Ya Nan Dagami, p. 36, Papers and Proceedings
of the 1st Cordillera Muti-Sectoral Land Congress, 11-14 March 1983, Cordillera Consultative
Committee [1984].

224
A "co-production agreement" is defined as one wherein the government provides input to
the mining operation other than the mineral resource- Section 26 (b), R.A. 7942, the Philippine
Mining Act of 1995.

225
A "joint venture agreement" is one where a joint-venture company is organized by the
government and the contractor with both parties having equity shares, and the government
entitled to a share in the gross output- Section 26 (c), R.A. 7942.

226
A mineral "production-sharing agreement" is one where the government grants to the
contractor the exclusive right to conduct mining operations within a contract area and shares
in the gross output. The contractor provides the financing, technology, management and
personnel necessary for the implementation of the agreement- Section 26 (a), R.A. 7942.

227
Section 26, R.A. 7942.

228
Section 3 [d], People's Small-Scale Mining Act of 1991 (R.A. 7076) provides:

"Sec. 3 [d] 'Small-scale mining contract' refers to co-production, joint venture or

mineral production sharing agreement between the State and a small-scale mining
contractor for the small-scale utilization of a plot of mineral land."

230
NCIP Administrative Order No. 1, Series of 1998.
231
In Republic v. Court of Appeals, 160 SCRA 228, 239 [1988], Cruz, J., ponente, it was declared
that if a person is the owner of a piece of agricultural land on which minerals are discovered,
his ownership of such land does not give him the right to extract or utilize the said minerals
without the permission of the State to which such minerals belong- also cited in H. de Leon,
Phil. Constitutional Law, Principles and Cases, vol. 2, pp. 800-801 [1999].

232
See Ground I, Grounds to Issue Writ of Prohibition, Petition, p. 14.

233
Section 7 (b) is subject to Section 56 of the same law which provides:

"Sec. 56. Existing Property Rights Regimes.- Property rights within the ancestral
domains already existing and/or vested upon effectivity of this Act, shall be
recognized and respected."

The law took effect 15 days upon publication in the O.G. or in any 2 newspapers of
general circulation (Sec. 84, IPRA). The IPRA was published in the Chronicle and
Malaya on Nov. 7, 1997.

234
Section 9 of the IPRA also gives the ICCs/IPs the ff. responsibilities over their ancestral
domains:

(a) Maintain Ecological Balance- To preserve, restore, and maintain a balanced

ecology in the ancestral domain by protecting the flora and fauna, watershed areas,
and other reserves;

(b) Restore Denuded Areas.- To actively initiate, undertake and participate in the
reforestation of denuded areas and other development programs and projects
subject to just and reasonable renumeration;

(c) Observe Laws.- To observe and comply with the provisions of this Act and the
rules and regulations for its effective implementation."

Section 58 of the same law also mandates that ancestral domains or portions
thereof, which are found to be necessary for critical watersheds, mangroves,
wildlife sanctuaries, wilderness, protected areas, forest cover, or reforestation as
determined by appropriate agencies with the full participation of the ICCs/IPs
concerned shall be maintained, managed and developed for such purposes. The
ICCs/IPs concerned shall be given the responsibility to maintain, develop, protect
and conserve such areas with the full and effective assistance of government
agencies.

243
The World Bank supported the Chico Dam project. Due to the Kalingas' opposition, the WB
pulled out of the project but the conflict between the Philippine government and the natives
endured long after- Marcus Colchester, Indigenous Peoples' Rights and Sustainable Resource
Use in South and Southeast Asia, Indigenous Peoples of Asia, supra, pp. 59, 71-72.
Cruz vs. Sec. DENR

EN BANC

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.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE CONSERVATION OF NATURAL
RESOURCES, INC., intervenor.

RESOLUTION

PER CURIAM:

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.

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 State’s 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 involving ancestral domains and
ancestral lands on the ground that these provisions violate the due process clause of the Constitution.4

These provisions are:

"(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 President’s 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 directing 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 State’s constitutional mandate to
control and supervise the exploration, development, utilization and conservation of Philippine
natural resources."7

After due deliberation on the petition, the members of the Court voted as follows:

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 large-scale 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.

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.

SO ORDERED.
Hizon vs. Court of Appeals, 265 SCRA 517 (1996)
Syllabus

3. CRIMINAL LAW; SPECIAL LAWS; ILLEGAL FISHING UNDER PRESIDENTIAL DECREE NO. 704; WHEN THE
OFFENSE OF ILLEGAL FISHING IS COMMITTED. - The offense of illegal fishing is committed when a
person catches, takes or gathers or causes to be caught, taken or gathered fish, fishery or aquatic
products in the Philippine waters with the use of explosives, electricity, obnoxious or poisonous
substances. The law creates a presumption that illegal fishing has been committed when: (a)
explosives, obnoxious or poisonous substances or equipment or device for electric fishing are
found in a fishing boat or in the possession of a fisherman; or (b) when fish caught or killed with the
use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing
boat. Under these instances, the boat owner, operator of fishermen are presumed to have engaged
in illegal fishing.

4. ID.; ID.; ID.; THE PRESUMPTION OF GUILT UNDER THE FISHERIES DECREE DOES NOT VIOLATE THE
PRESUMPTION OF INNOCENCE GUARANTEED BY THE CONSTITUTION. - Petitioners contend that
this presumption of guilt under the Fisheries Decree violates the presumption of innocence
guaranteeed by the Constitution. As early as 1916, this Court has rejected this argument by holding
that: "In some States, as well as in England, there exist what are known as common law offenses. In
the Philippine Islands no act is a crime unless it is made so by statute. The state having the right to
declare what acts are criminal, within certain well-defined limitations, has the right to specify what
act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of
guilt, and then to put upon the defendant the burden of showing that such act or acts are innocent
and are not committed with any criminal intent or intention." The validity of laws establishing
presumptions in criminal cases is a settled matter. It is generally conceded that the legislature has
the power to provide that proof of certain facts can constitute prima facie evidence of the guilt of
the accused and then shift the burden of proof to the accused provided there is a rational
connection between the facts proved and the ultimate fact presumed. To avoid any constitutional
infirmity, the inference of one from proof of the other must not be arbitrary and unreasonable. In
fine, the presumption must be based on facts and these facts must be part of the crime when
committed. The third paragraph of Section 33 of P.D. 704 creates a presumption of guilt based on
facts proved and hence is not constitutionally impermissible. It makes the discovery of obnoxious
or poisonous substances, explosives or electricity in any fishing boat or in the possession of a
fisherman evidence that the owner and operator of the fishing boat or the fisherman had used
such substances in catching fish. The ultimate fact presumed is that the owner and operator of the
boat or the fisherman were engaged in illegal fishing and this presumption was made to arise from
the discovery of the substances and the contaminated fish in the possession of the fisherman in the
fishing boat. The fact presumed is a natural inference from the fact proved. We stress, however,
that the statutory presumption is merely prima facie. It can not, under the guise of regulating the
presentation of evidence, operate to preclude the accused from presenting his defense to rebut
the main fact presumed.

5. ID.; ID.; ID.; ID.; PETITIONERS IN CASE AT BAR HAVE SUCCESSFULLY REBUTTED THE PRESUMPTION OF
GULT. - We now review the evidence to determine whether petitioners have successfully rebutted
this presumption. The facts show that on November 13, 1992, after the Information was filed in
court and petitioners granted bail, petitioners moved that the fish specimens taken from the F/B
Robinson be reexamined. The trial court granted the motion. As prayed for, a member of the PNP
Maritime Command of Puerto Princesa, in the presence of authorized representatives of the F/B
Robinson, the NBI and the local Fisheries Office, took at random five (5) live lapu-lapu from the fish
cage of the boat. The specimens were packed in the usual manner of transporting live fish, taken
aboard a commercial flight and delivered by the same representatives to the NBI Head Office
in Manila for chemical analysis. On November 23, 1992, Salud Rosales, another forensic chemist of
the NBI in Manila conducted three (3) tests on the specimens and found the fish negative for the
presence of sodium cyanide, thus :"Gross weight of specimen = 3.849 kg. Examinations made on
the above-mentioned specimens gave NEGATIVE RESULTS to the tests for the presence of SODIUM
 CYANIDE." The Information charged petitioners with illegal fishing "with the use of obnoxious or
poisonous substance (sodium cyanide), of more or less one (1) ton of assorted live fishes." There
was more or less one ton of fishes in the F/B Robinson's fish cage. It was from this cage that the
four dead specimens examined on October 7, 1992 and the five live specimens examined
on November 23, 1992 were taken. Though all the specimens came from the same source allegedly
tainted with sodium cyanide, the two tests resulted in conflicting findings. We note that after its
apprehension, the F/B Robinson never left the custody of the PNP Maritime Command. The fishing
boat was anchored near the city harbor and was guarded by members of the Maritime Command.
It was later turned over to the custody of the Philippine Coast Guard Commander
of Puerto Princesa City. The prosecution failed to explain the contradictory findings on the fish
samples and this omission raises a reasonable doubt that the one ton of fishes in the cage were
caught with the use of sodium cyanide.The absence of cyanide in the second set of fish specimens
supports petitioners' claim that they did not use the poison in fishing. According to them, they
caught the fishes by the ordinary and legal way, i.e. by hook and line of board their sampans. This
claim is buttressed by the prosecution evidence itself. The apprehending officers saw petitioners
fishing by hook and line when they came upon them in the waters of Barangay San Rafael.

SECOND DIVISION

[G.R. No. 119619. December 13, 1996]

RICHARD HIZON, SILVERIO GARGAR, ERNESTO ANDAYA, NEMESIO GABO, RODRIGO ABRERA, CHEUNG
TAI FOOK, SHEK CHOR LUK, EFREN DELA PENA, JONEL AURELIO, GODOFREDO VILLAVERDE,
ANGELITO DUMAYBAG, DEOMEDES ROSIL, AMADO VILLANUEVA, FRANCISCO ESTREMOS,
ANGEL VILLAVERDE, NEMESIO CASAMPOL, RICHARD ESTREMOS, JORNIE DELA PENA, JESUS
MACTAN, MARLON CAMPORAZO, FERNANDO BIRING, MENDRITO CARPO, LUIS DUARTE,
JOSEPH AURELIO, RONNIE JUEZAN, BERNARDO VILLACARLOS, RICARDO SALES, MARLON
ABELLA, TEODORO DELOS REYES, IGNACIO ABELLA, JOSEPH MAYONADO, JANAIRO
LANGUYOD, DODONG DELOS REYES, JOLLY CABALLERO and ROPLANDO
ARCENAS, petitioners, vs. HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.

DECISION

PUNO, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. CR No.
15417 affirming the decision of the Regional Trial Court, Branch 52, Palawan in Criminal Case No. 10429
convicting petitioners of the offense of illegal fishing with the use of obnoxious or poisonous substance
penalized under Presidential Decree (P.D.) No. 704, the Fisheries Decree of 1975.

In an Information dated October 15, 1992, petitioners were charged with a violation of P.D. 704
committed as follows:

That on or about the 30th day of September 1992, at Brgy. San Rafael, Puerto Princesa City, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused crew members and
fishermen of F/B Robinson owned by First Fishermen Fishing Industries, Inc., represented by Richard
Hizon, a domestic corporation duly organized under the laws of the Philippines, being then the owner,
crew members and fishermen of F/B Robinson and with the use of said fishing boat, did then and there
wilfully, unlawfully and feloniously the said accused conspiring and confederating together and mutually
helping one another catch, take or gather or cause to be caught, taken or gathered fish or fishery aquatic
products in the coastal waters of Puerto Princesa City, Palawan, with the use of obnoxious or poisonous
substance (sodium cyanide), of more or less one (1) ton of assorted live fishes which were illegally caught
thru the use of obnoxious/poisonous substance (sodium cyanide).[1]

The following facts were established by the prosecution: In September 1992, the Philippine
National Police (PNP) Maritime Command of Puerto Princesa City, Palawan received reports of illegal
fishing operations in the coastal waters of the city. In response to these reports, the city mayor organized
Task Force Bantay Dagat to assist the police in the detection and apprehension of violators of the laws on
fishing.

On September 30, 1992 at about 2:00 in the afternoon, the Task Force Bantay Dagat reported to
the PNP Maritime Command that a boat and several small crafts were fishing by muro ami within the
shoreline of Barangay San Rafael of Puerto Princesa. The police, headed by SPO3 Romulo Enriquez, and
members of the Task Force Bantay Dagat, headed by Benito Marcelo, Jr., immediately proceeded to the
area and found several men fishing in motorized sampans and a big fishing boat identified as F/B
Robinson within the seven-kilometer shoreline of the city. They boarded the F/B Robinson and inspected
the boat with the acquiescence of the boat captain, Silverio Gargar. In the course of their inspection, the
police saw two foreigners in the captains deck. SPO3 Enriquez examined their passports and found them
to be mere photocopies. The police also discovered a large aquarium full of live lapu-lapu and assorted
fish weighing approximately one ton at the bottom of the boat.[2] They checked the license of the boat
and its fishermen and found them to be in order. Nonetheless, SPO3 Enriquez brought the boat captain,
the crew and the fishermen to Puerto Princesa for further investigation.

At the city harbor, members of the Maritime Command were ordered by SPO3 Enriquez to guard
the F/B Robinson. The boat captain and the two foreigners were again interrogated at the PNP Maritime
Command office. Thereafter, an Inspection/Apprehension Report was prepared and the boat, its crew and
fishermen were charged with the following violations:

1. Conducting fishing operations within Puerto Princesa coastal waters without mayors
permit;

2. Employing excess fishermen on board (Authorized--26; On board--36);

3. Two (2) Hongkong nationals on board without original passports.[3]

The following day, October 1, 1992, SPO3 Enriquez directed the boat captain to get random
samples of fish from the fish cage of F/B Robinson for laboratory examination. As instructed, the boat
engineer, petitioner Ernesto Andaya, delivered to the Maritime Office four (4) live lapu-lapu fish inside a
plastic shopping bag filled with water. SPO3 Enriquez received the fish and in the presence of the boat
engineer and captain, placed them inside a large transparent plastic bag without water. He sealed the
plastic with heat from a lighter.[4]

The specimens were brought to the National Bureau of Investigation (NBI) sub-office in the city for
examination to determine the method of catching the same for record or evidentiary purposes.[5] They
were received at the NBI office at 8:00 in the evening of the same day. The receiving clerk, Edna Capicio,
noted that the fish were dead and she placed the plastic bag with the fish inside the office freezer to
preserve them. Two days later, on October 3, 1992, the chief of the NBI sub-office, Onos Mangotara,
certified the specimens for laboratory examination at the NBI Head Office in Manila. The fish samples
were to be personally transported by Edna Capicio who was then scheduled to leave for Manila for her
board examination in Criminology.[6] On October 4, 1992, Ms. Capicio, in the presence of her chief, took
the plastic with the specimens from the freezer and placed them inside two shopping bags and sealed
them with masking tape. She proceeded to her ship where she placed the specimens in the ships freezer.
 Capicio arrived in Manila the following day, October 5, 1992 and immediately brought the
specimens to the NBI Head Office. On October 7, 1992, NBI Forensic Chemist Emilia Rosaldes conducted
two tests on the fish samples and found that they contained sodium cyanide, thus:

FINDINGS:

Weight of Specimen 1.870 kilograms Examinations made on the above-mentioned specimen gave
POSITIVE RESULTS to the test for the presence of SODIUM CYANIDE x x x

REMARKS:

Sodium Cyanide is a violent poison.[7]

In light of these findings, the PNP Maritime Command of Puerto Princesa City filed the complaint at
bar against the owner and operator of the F/B Robinson, the First Fishermen Fishing Industries, Inc.,
represented by herein petitioner Richard Hizon, the boat captain, Silverio Gargar, the boat engineer,
Ernesto Andaya, two other crew members, the two Hongkong nationals and 28 fishermen of the said
boat.

Petitioners were arraigned and they pled not guilty to the charge. As defense, they claimed that
they are legitimate fishermen of the First Fishermen Industries, Inc., a domestic corporation licensed to
engage in fishing. They alleged that they catch fish by the hook and line method and that they had used
this method for one month and a half in the waters of CuyoIsland. They related that on September 30,
1992 at about 7:00 A.M., they anchored the F/B Robinson in the east
of Podiado Island in Puerto Princesa City. The boat captain and the fishermen took out and boarded their
sampans to fish for their food. They were still fishing in their sampans at 4:00 P.M. when a rubber boat
containing members of the PNP Maritime Command and the Task Force Bantay Dagat approached them
and boarded the F/B Robinson. The policemen were in uniform while the Bantay Dagat personnel were in
civilian clothes.They were all armed with guns. One of the Bantay Dagat personnel introduced himself as
Commander Jun Marcelo and he inspected the boat and the boats documents. Marcelo saw the two
foreigners and asked for their passports. As their passports were photocopies, Marcelo demanded for
their original. The captain explained that the original passports were with the companys head office
in Manila. Marcelo angrily insisted for the originals and threatened to arrest everybody. He then ordered
the captain, his crew and the fishermen to follow him to Puerto Princesa. He held the magazine of his gun
and warned the captain Sige, huwag kang tatakas, kung hindi babarilin ko kayo![8] The captain herded all
his men into the boat and followed Marcelo and the police to Puerto Princesa.

They arrived at the city harbor at 7:45 in the evening and were met by members of the media. As
instructed by Marcelo, the members of the media interviewed and took pictures of the boat and the
fishermen.[9]

The following day, October 1, 1992, at 8:00 in the morning, Amado Villanueva, one of the
fishermen at the F/B Robinson, was instructed by a policemen guarding the boat to get five (5) fish
samples from the fish cage and bring them to the pier. Villanueva inquired whether the captain knew
about the order but the guard replied he was taking responsibility for it. Villanueva scooped five pieces of
lapu-lapu, placed them inside a plastic bag filled with water and brought the bag to the pier. The boat
engineer, Ernesto Andaya, received the fish and delivered them to the PNP Maritime Office. Nobody was
in the office and Andaya waited for the apprehending officers and the boat captain. Later, one of the
policemen in the office instructed him to leave the bag and hang it on a nail in the wall. Andaya did as he
was told and returned to the boat at 10:00 A.M.[10]

In the afternoon of the same day, the boat captain arrived at the Maritime office. He brought along
a representative from their head office in Manila who showed the police and the Bantay Dagat personnel
the original passports of the Hongkong nationals and other pertinent documents of the F/B Robinson and
its crew. Finding the documents in order, Marcelo approached the captain and whispered to him Tandaan
mo ito, kapitan, kung makakaalis ka dito, magkikita pa rin uli tayo sa dagat, kung hindi kayo lulubog ay
palulutangin ko kayo! It was then that SPO3 Enriquez informed the captain that some members of the
Maritime Command, acting under his instructions, had just taken five (5) pieces of lapu-lapu from the
boat. SPO3 Enriquez showed the captain the fish samples. Although the captain saw only four (4) pieces of
lapu-lapu, he did not utter a word of protest.[11] Under Marcelos threat, he signed the Certification that he
received only four (4) pieces of fish.[12]

Two weeks later, the information was filed against petitioners. The case was prosecuted against
thirty-one (31) of the thirty-five (35) accused. Richard Hizon remained at large while the whereabouts of
Richard Estremos, Marlon Camporazo and Joseph Aurelio were unknown.

On July 9, 1993, the trial court found the thirty one (31) petitioners guilty and sentenced them to
imprisonment for a minimum of eight (8) years and one (1) day to a maximum of nine (9) years and four
(4) months. The court also ordered the confiscation and forfeiture of the F/B Robinson, the 28 sampans
and the ton of assorted live fishes as instruments and proceeds of the offense, thus:

WHEREFORE, premises considered, judgment is hereby rendered finding the accused SILVERIO
GARGAR, ERNESTO ANDAYA, NEMESIO GABO, RODRIGO ABRERA, CHEUNG TAI FOOK, SHEK CHOR
LUK, EFREN DELA PENA, JONEL AURELIO, GODOFREDO VILLAVERDE, ANGELITO DUMAYBAG,
DEOMEDES ROSIL, AMADO VILLANUEVA, FRANCISCO ESTREMOS, ARNEL VILLAVERDE, NEMESIO
CASAMPOL, JORNIE DELACRUZ, JESUS MACTAN, FERNANDO BIRING, MENDRITO CARPO, LUIS
DUARTE, RONNIE JUEZAN, BERNARDO VILLACARLOS, RICARDO SALES, MARLON ABELLA,
TEODORO DELOS REYES, IGNACIO ABELLA, JOSEPH MAYONADO, JANAIRO LANGUYOD, DODONG
DELOS REYES, ROLANDO ARCENAS and JOLLY CABALLERO guilty beyond reasonable doubt of the
crime of Illegal Fishing with the use of obnoxious or poisonous substance commonly known as
sodium cyanide, committed in violation of section 33 and penalized in section 38 of Presidential
Decree No. 704, as amended, and there being neither mitigating nor aggravating circumstances
appreciated and applying the provisions of the Indeterminate Sentence Law, each of the
aforenamed accused is sentenced to an indeterminate penalty of imprisonment ranging from a
minimum of EIGHT (8) YEARS and ONE (1) DAY to a maximum of NINE (9) YEARS and FOUR (4)
MONTHS and to pay the costs.

Pursuant to the provisions of Article 45, in relation to the second sentence of Article 10 of the
Revised Penal Code, as amended:

a) Fishing Boat (F/B) Robinson;

b) The 28 motorized fiberglass sampans; and

c) The live fishes in the fish cages installed in the F/B Robinson, all of which have been
respectively shown to be tools or instruments and proceeds of the offense, are hereby
ordered confiscated and declared forfeited in favor of the government.

SO ORDERED.[13]

On appeal, the Court of Appeals affirmed the decision of the trial court. Hence, this petition.

Petitioners contend that:

I
 THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE MERE POSITIVE RESULTS TO
THE TEST FOR THE PRESENCE OF SODIUM CYANIDE IN THE FISH SPECIMEN, ALBEIT ILLEGALLY
SEIZED ON THE OCCASION OF A WARRANTLESS SEARCH AND ARREST, IS ADMISSIBLE AND
SUFFICIENT BASIS FOR THE PETITIONERS CONVICTION OF THE CRIME OF ILLEGAL FISHING.

II

THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE STATUTORY
PRESUMPTION OF GUILT UNDER SEC. 33 OF PRESIDENTIAL DECREE NO. 704 CANNOT PREVAIL
AGAINST THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE, SUCH THAT THE GRAVAMEN OF
THE OFFENSE OF ILLEGAL FISHING MUST STILL BE PROVED BEYOND REASONABLE DOUBT.

III

THE HONORABLE COURT OF APPEALS ERRED IN NOT REVERSING THE JUDGMENT OF THE TRIAL
COURT AND ACQUITTING THE PETITIONERS.[14]

The Solicitor General submitted a Manifestation in Lieu of Comment praying for petitioners
acquittal.[15]

The petitioners, with the concurrence of the Solicitor General, primarily question the admissibility
of the evidence against petitioners in view of the warrantless search of the fishing boat and the
subsequent arrest of petitioners. More concretely, they contend that the NBI finding of sodium cyanide in
the fish specimens should not have been admitted and considered by the trial court because the fish
samples were seized from the F/B Robinson without a search warrant.

Our constitution proscribes search and seizure and the arrest of persons without a judicial
warrant.[16] As a general rule, any evidence obtained without a judicial warrant is inadmissible for any
purpose in any proceeding. The rule is, however, subject to certain exceptions. Some of these are:[17] (1) a
search incident to a lawful arrest;[18] (2) seizure of evidence in plain view; (3) search of a moving motor
vehicle;[19] and (4) search in violation of customs laws.[20]

Search and seizure without search warrant of vessels and aircrafts for violations of customs laws
have been the traditional exception to the constitutional requirement of a search warrant. It is rooted on
the recognition that a vessel and an aircraft, like motor vehicles, can be quickly moved out of the locality
or jurisdiction in which the search warrant must be sought and secured. Yielding to this reality, judicial
authorities have not required a search warrant of vessels and aircrafts before their search and seizure can
be constitutionally effected.[21]

The same exception ought to apply to seizures of fishing vessels and boats breaching our fishery
laws. These vessels are normally powered by high-speed motors that enable them to elude arresting ships
of the Philippine Navy, the Coast Guard and other government authorities enforcing our fishery laws.[22]

We thus hold as valid the warrantless search on the F/B Robinson, a fishing boat suspected of
having engaged in illegal fishing. The fish and other evidence seized in the course of the search were
properly admitted by the trial court. Moreover, petitioners failed to raise the issue during trial and hence,
waived their right to question any irregularity that may have attended the said search and seizure.[23]

Given the evidence admitted by the trial court, the next question now is whether petitioners are
guilty of the offense of illegal fishing with the use of poisonous substances. Again, the petitioners, joined
by the Solicitor General, submit that the prosecution evidence cannot convict them.

We agree.
 Petitioners were charged with illegal fishing penalized under sections 33 and 38 of P.D.
704[24] which provide as follows:

Sec. 33. Illegal fishing, illegal possession of explosives intended for illegal fishing; dealing in
illegally caught fish or fishery/aquatic products. -- It shall be unlawful for any person to catch,
take or gather or cause to be caught, taken or gathered fish or fishery/aquatic products in
Philippine waters with the use of explosives, obnoxious or poisonous substance, or by the use
of electricity as defined in paragraphs (l), (m) and (d), respectively, of section 3
hereof: Provided, That mere possession of such explosives with intent to use the same for
illegal fishing as herein defined shall be punishable as hereinafter provided: Provided, That the
Secretary may, upon recommendation of the Director and subject to such safeguards and
conditions he deems necessary, allow for research, educational or scientific purposes only, the
use of explosives, obnoxious or poisonous substance or electricity to catch, take or gather fish
or fishery/aquatic products in the specified area: Provided, further, That the use of chemicals
to eradicate predators in fishponds in accordance with accepted scientific fishery practices
without causing deleterious effects in neighboring waters shall not be construed as the use of
obnoxious or poisonous substance within the meaning of this section: Provided, finally, That
the use of mechanical bombs for killing whales, crocodiles, sharks or other large dangerous
fishes, may be allowed, subject to the approval of the Secretary.

It shall, likewise, be unlawful for any person knowingly to possess, deal in, sell or in any
manner dispose of, for profit, any fish or fishery/aquatic products which have been illegally
caught, taken or gathered.

The discovery of dynamite, other explosives and chemical compounds containing combustible
elements, or obnoxious or poisonous substance, or equipment or device for electric fishing in
any fishing boat or in the possession of a fisherman shall constitute a presumption that the
same were used for fishing in violation of this Decree, and the discovery in any fishing boat of
fish caught or killed by the use of explosives, obnoxious or poisonous substance or by
electricity shall constitute a presumption that the owner, operator or fisherman were fishing
with the use of explosives, obnoxious or poisonous substance or electricity.

xxxxxxxxx

Sec. 38. Penalties. -- (a) For illegal fishing and dealing in illegally caught fish or fishery/aquatic
products.-- Violation of Section 33 hereof shall be punished as follows:

xxxxxxxxx

(2) By imprisonment from eight (8) to ten (10) years, if obnoxious or poisonous substances are
used: Provided, That if the use of such substances results 1) in physical injury to any person,
the penalty shall be imprisonment from ten (10) to twelve (12) years, or 2) in the loss of human
life, then the penalty shall be imprisonment from twenty (20) years to life or death;

x x x x x x x x x.[25]

The offense of illegal fishing is committed when a person catches, takes or gathers or causes to be
caught, taken or gathered fish, fishery or aquatic products in Philippine waters with the use of explosives,
electricity, obnoxious or poisonous substances. The law creates a presumption that illegal fishing has been
committed when: (a) explosives, obnoxious or poisonous substances or equipment or device for electric
fishing are found in a fishing boat or in the possession of a fisherman; or (b) when fish caught or killed
with the use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing
boat. Under these instances, the boat owner, operator or fishermen are presumed to have engaged in
illegal fishing.

Petitioners contend that this presumption of guilt under the Fisheries Decree violates the
presumption of innocence guaranteed by the Constitution.[26] As early as 1916, this Court has rejected this
argument by holding that:[27]

In some States, as well as in England, there exists what are known as common law offenses. In
the Philippine Islands no act is a crime unless it is made so by statute. The state having the
right to declare what acts are criminal, within certain well-defined limitations, has the right to
specify what act or acts shall constitute a crime, as well as what proof shall constitute prima
facie evidence of guilt, and then to put upon the defendant the burden of showing that such
act or acts are innocent and are not committed with any criminal intent or intention.[28]

The validity of laws establishing presumptions in criminal cases is a settled matter. It is generally
conceded that the legislature has the power to provide that proof of certain facts can constitute prima
facie evidence of the guilt of the accused and then shift the burden of proof to the accused provided there
is a rational connection between the facts proved and the ultimate fact presumed.[29] To avoid any
constitutional infirmity, the inference of one from proof of the other must not be arbitrary and
unreasonable.[30] In fine, the presumption must be based on facts and these facts must be part of the
crime when committed.[31]

The third paragraph of section 33 of P.D. 704 creates a presumption of guilt based on facts proved
and hence is not constitutionally impermissible. It makes the discovery of obnoxious or poisonous
substances, explosives, or devices for electric fishing, or of fish caught or killed with the use of obnoxious
and poisonous substances, explosives or electricity in any fishing boat or in the possession of a fisherman
evidence that the owner and operator of the fishing boat or the fisherman had used such substances in
catching fish. The ultimate fact presumed is that the owner and operator of the boat or the fisherman
were engaged in illegal fishing and this presumption was made to arise from the discovery of the
substances and the contaminated fish in the possession of the fisherman in the fishing boat. The fact
presumed is a natural inference from the fact proved.[32]

We stress, however, that the statutory presumption is merely prima facie. [33] It can not, under the
guise of regulating the presentation of evidence, operate to preclude the accused from presenting his
defense to rebut the main fact presumed.[34] At no instance can the accused be denied the right to rebut
the presumption,[35] thus:

The inference of guilt is one of fact and rests upon the common experience of men. But the
experience of men has taught them that an apparently guilty possession may be explained so
as to rebut such an inference and an accused person may therefore put witnesses on the stand
or go on the witness stand himself to explain his possession, and any reasonable explanation of
his possession, inconsistent with his guilty connection with the commission of the crime, will
rebut the inference as to his guilt which the prosecution seeks to have drawn from his guilty
possession of the stolen goods.[36]

We now review the evidence to determine whether petitioners have successfully rebutted this
presumption. The facts show that on November 13, 1992, after the information was filed in court and
petitioners granted bail, petitioners moved that the fish specimens taken from the F/B Robinson be
reexamined.[37] The trial court granted the motion.[38] As prayed for, a member of the PNP Maritime
Command of Puerto Princesa, in the presence of authorized representatives of the F/B Robinson, the NBI
and the local Fisheries Office, took at random five (5) live lapu-lapu from the fish cage of the boat. The
specimens were packed in the usual manner of transporting live fish, taken aboard a commercial flight
and delivered by the same representatives to the NBI Head Office in Manila for chemical analysis.
 On November 23, 1992, Salud Rosales, another forensic chemist of the NBI in Manila conducted
three (3) tests on the specimens and found the fish negative for the presence of sodium cyanide, [39] thus:

Gross weight of specimen = 3.849 kg.

Examination made on the above-mentioned specimens gave NEGATIVE RESULTS to the tests
for the presence of SODIUM CYANIDE.[40]

The Information charged petitioners with illegal fishing with the use of obnoxious or poisonous
substance (sodium cyanide), of more or less one (1) ton of assorted live fishes. There was more or less one
ton of fishes in the F/B Robinsons fish cage. It was from this fish cage that the four dead specimens
examined on October 7, 1992 and the five live specimens examined on November 23, 1992 were
taken. Though all the specimens came from the same source allegedly tainted with sodium cyanide, the
two tests resulted in conflicting findings. We note that after its apprehension, the F/B Robinson never left
the custody of the PNP Maritime Command. The fishing boat was anchored near the city harbor and was
guarded by members of the Maritime Command.[41] It was later turned over to the custody of the
Philippine Coast Guard Commander of Puerto Princesa City.[42]

The prosecution failed to explain the contradictory findings on the fish samples and this omission
raises a reasonable doubt that the one ton of fishes in the cage were caught with the use of sodium
cyanide.

The absence of cyanide in the second set of fish specimens supports petitioners claim that they did
not use the poison in fishing. According to them, they caught the fishes by the ordinary and legal way, i.e.,
by hook and line on board their sampans. This claim is buttressed by the prosecution evidence itself. The
apprehending officers saw petitioners fishing by hook and line when they came upon them in the waters
of Barangay San Rafael. One of the apprehending officers, SPO1 Demetrio Saballuca, testified as follows:

ATTY. TORREFRANCA ON CROSS-EXAMINATION:

Q : I get your point therefore, that the illegal fishing supposedly conducted at San Rafael is a
moro ami type of fishing [that] occurred into your mind and that was made to
understand by the Bantay Dagat personnel?

A : Yes, sir.

Q : Upon reaching the place, you and the pumpboat, together with the two Bantay Dagat
personnel were SPO3 Romulo Enriquez and Mr. Benito Marcelo and SPO1 Marzan,
you did not witness that kind of moro ami fishing, correct?

A : None, sir.

Q :In other words, there was negative activity of moro ami type of fishing on September 30,
1992 at 4:00 in the afternoon at San Rafael?

A : Yes, sir.

Q : And what you saw were 5 motorized Sampans with fishermen each doing a hook and line
fishing type?

A : Yes, sir. More or less they were five.

Q : And despite the fact you had negative knowledge of this moro ami type of fishing, SPO3
Enriquez together with Mr. Marcelo boarded the vessel just the same?

A : Yes, sir.
x x x x x x x x x.[43]

The apprehending officers who boarded and searched the boat did not find any sodium
cyanide nor any poisonous or obnoxious substance. Neither did they find any trace of the
poison in the possession of the fishermen or in the fish cage itself. An Inventory was
prepared by the apprehending officers and only the following items were found on board
the boat:

ITEMS QUANTITY REMARKS

F/B Robinson (1) unit operating

engine (1) unit ICE-900-BHP

sampans 28 units fiberglass

outboard motors 28 units operating

assorted fishes more or less 1 ton live

hooks and lines assorted

x x x.[44]

We cannot overlook the fact that the apprehending officers found in the boat assorted hooks and
lines for catching fish.[45] For this obvious reason, the Inspection/Apprehension Report prepared by the
apprehending officers immediately after the search did not charge petitioners with illegal fishing, much
less illegal fishing with the use of poison or any obnoxious substance.[46]

The only basis for the charge of fishing with poisonous substance is the result of the first NBI
laboratory test on the four fish specimens. Under the circumstances of the case, however, this finding
does not warrant the infallible conclusion that the fishes in the F/B Robinson, or even the same four
specimens, were caught with the use of sodium cyanide.

Prosecution witness SPO1 Bernardino Visto testified that for the first laboratory test , boat
engineer Ernesto Andaya did not only get four (4) samples of fish but actually got five (5) from the fish
cage of the F/B Robinson.[47] This Certification that four (4) fish samples were taken from the boat shows
on its face the number of pieces as originally five (5) but this was erased with correction fluid and four (4)
written over it.[48] The specimens were taken, sealed inside the plastic bag and brought to Manila by the
police authorities in the absence of petitioners or their representative. SPO2 Enriquez testified that the
same plastic bag containing the four specimens was merely sealed with heat from a lighter. [49] Emilia
Rosaldes, the NBI forensic chemist who examined the samples, testified that when she opened the
package, she found two ends of the same plastic bag knotted.[50] These circumstances as well as the time
interval from the taking of the fish samples and their actual examination [51] fail to assure the impartial
mind that the integrity of the specimens had been properly safeguarded.

Apparently, the members of the PNP Maritime Command and the Task Force Bantay Dagat were
the ones engaged in an illegal fishing expedition. As sharply observed by the Solicitor General, the report
received by the Task Force Bantay Dagat was that a fishing boat was fishing illegally through muro ami on
the waters of San Rafael. Muro ami according to SPO1 Saballuca is made with the use of a big net with
sinkers to make the net submerge in the water with the fishermen surround[ing] the net.[52]
 This method of fishing needs approximately two hundred (200) fishermen to execute. [53] What the
apprehending officers instead discovered were twenty eight (28) fishermen in their discovered were
twenty eight (28) fishermen in their sampans fishing by hook and line. The authorities found nothing on
the boat that would have indicated any form of illegal fishing. All the documents of the boat and the
fishermen were in order. It was only after the fish specimens were tested, albeit under suspicious
circumstances, that petitioners were charged with illegal fishing with the use of poisonous substances.

IN VIEW WHEREOF, the petition is granted and the decision of the Court of Appeals in CA-G.R. CR
No. 15417 is reversed and set aside. Petitioners are acquitted of the crime of illegal fishing with the use of
poisonous substances defined under the Section 33 of Republic Act No. 704, the Fisheries Decree of
1975. No costs.

SO ORDERED.

Regalado (Chairman), Romero, Mendoza, and Torres, Jr., JJ., concur.

Fisheries Administrative Order No. 163, Series of 1986, Prohibiting the Operation of Muro-Ami and
Kayakas in all Philippine Waters defines muro-ami as:

Sec. 1 (a). Muro-ami or drive-in-net means a Japanese fishing gear used in reef fishing which consists of a
movable bagnet and two detachable wings effecting the capture of fish bay spreading the net
in an arc form around reefs or shoals and with the aid of scaring devices, a cordon of fishermen
drive the fish from the reefs toward the bag portion of the whole net. ( 82 O.G. No. 48, 5052
Dec. 1, 1986).