Ocampo Vs Arroyo

EN BANC
[G.R. No. 182734. January 10, 2023.]
BAYAN MUNA PARTY-LIST REPRESENTATIVES SATUR C.

OCAMPO and TEODORO A. CASIÑO, ANAKPAWIS
REPRESENTATIVE CRISPIN B. BELTRAN, GABRIELA WOMEN'S
PARTY REPRESENTATIVES LIZA L. MAZA and LUZVIMINDA C.
ILAGAN, REP. LORENZO R. TAÑADA III, and REP. TEOFISTO
L. GUINGONA III, petitioners, vs. PRESIDENT GLORIA
MACAPAGAL-ARROYO, EXECUTIVE SECRETARY EDUARDO R.
ERMITA, SECRETARY OF THE DEPARTMENT OF FOREIGN
AFFAIRS, SECRETARY OF THE DEPARTMENT OF ENERGY,
PHILIPPINE NATIONAL OIL COMPANY, and PHILIPPINE
NATIONAL OIL COMPANY EXPLORATION CORPORATION ,
respondents.
DECISION
GAERLAN, J : p
Before Us is an original action for certiorari and prohibition 1 assailing

the constitutionality of the Tripartite Agreement for Joint Marine Seismic
Undertaking (JMSU) in the Agreement Area in the South China Sea By and
Among China National Offshore Oil Corporation (CNOOC) and Vietnam Oil
and Gas Corporation (PETROVIETNAM) and Philippine National Oil Company
(PNOC). 2
At the core of the controversy is Section 2, Article XII of the 1987
Philippine Constitution (the 1987 Constitution) which mandates that the
exploration, development, and utilization (EDU) of natural resources shall be
under the full control and supervision of the State. HTcADC
The Antecedents
PNOC is the national oil company of the Republic of the Philippines
(Republic). CNOOC is the state-owned oil company of the People's Republic
of China. PETROVIETNAM is the state-owned oil company of the Socialist
Republic of Vietnam. 3
On March 14, 2005, CNOOC, PETROVIETNAM, and PNOC (collectively,
the Parties), with the authorization of their respective Governments, signed
the JMSU in Manila, Philippines. The JMSU has a term of three years starting
from the date of commencement of its implementation (Agreement Term).
According to its fourth whereas clause, its execution is an expression of the
Parties' commitment "to pursue efforts to transform the South China Sea into
an area of peace, stability, cooperation, and development." 4 Consequently,
the Parties desire "to engage in a joint research of petroleum resource
potential of a certain area of the South China Sea as a pre-exploration
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activity." 5 The JMSU shall cover 142,886 square kilometers of the
Agreement Area, defined, and marked out by the geographic location and
coordinates of the connecting points of the boundary lines in the Annex
attached to the agreement. 6 Article 4 (1) of the JMSU authorizes the conduct
by the Parties of "seismic work" in the Agreement Area, viz.:
4.1. It is agreed that certain amount of 2D and/or 3D
seismic lines shall be collected and processed and certain amount of
existing 2D seismic lines shall be reprocessed within the Agreement
Term. The seismic work shall be conducted in accordance with the
seismic program unanimously approved by the Parties taking into
account the safety and protection of the environment in the
Agreement Area. 7
For the proper performance of the joint activity, 8 the Parties shall
establish a Joint Operating Committee (JOC) as soon as possible after the
JMSU is signed. The Parties shall each appoint three representatives to the
JOC. The JOC's powers, among others, include the formulation of a Joint
Operating Procedure (JOP) for the conduct of the joint activity. As a rule, the
Parties agreed to have effective and equal participation in all activities
relevant to the implementation of the JMSU. 9 During the Agreement Term
and within five years after its expiration, the JMSU itself and all the relevant
documents, information, data, and reports with respect to the joint marine
seismic undertaking shall not be disclosed by a Party to any other party
without the written consent of the rest of the Parties (confidentiality clause).
10 Nevertheless, the last clause of the JMSU states that it shall not be binding
on the Parties should any party fail to obtain its government's approval
within three months after the date on which it is signed. The latest date of
the approvals shall be the effective date of the JMSU, while the date of the
commencement of its implementation shall be the first day of the month
following its effectivity. 11
Allegedly, on June 5, 2005, then Department of Energy (DOE) Secretary
Raphael P.M. Lotilla issued a six-month term permit (first permit) to the
PNOC Exploration Corporation (PNOC-EC), the assignee of the PNOC under
Article 9.1 of the JMSU. This permit constituted the Philippine Government's
approval of the JMSU. On July 1, 2005, the JMSU commenced to be
implemented for the Agreement Term or until July 1, 2008. On December 10,
2005, the first permit expired. On October 4, 2007, the DOE allegedly issued
another permit for a six-month term (second permit). 12
On May 21, 2008, Bayan Muna Party-List Representatives Satur C.
Ocampo (Ocampo) and Teodoro A. Casiño, Anakpawis Representative Crispin
B. Beltran, Gabriela Women's Party Representatives Liza L. Maza and
Luzviminda C. Ilagan, Representative Lorenzo R. Tañada III, and
Representative Teofisto L. Guingona III (collectively, petitioners), suing as
legislators, taxpayers, and citizens, filed the present petition against
President Gloria Macapagal-Arroyo (PGMA), Executive Secretary Eduardo R.
Ermita (ES Ermita), the Secretary of the Department of Foreign Affairs (DFA),
the Secretary of the DOE, PNOC, and PNOC-EC (collectively, respondents).
Petitioners argued that the JMSU is unconstitutional based on two grounds,
namely: (1) the JMSU allows large-scale exploration of petroleum and other
mineral oils by corporations wholly-owned by foreign states in the
archipelagic waters, territorial sea, and exclusive economic zone (EEZ)
clearly and undisputedly owned by the Republic including the Spratly Islands
in violation of Section 2 (1), Article XII of the 1987 Constitution; and (2) the
JMSU is not covered and sanctioned by any of the allowable and permissible
undertakings for the EDU of natural resources under the 1987 Constitution.
13
Petitioners ascribed grave abuse of discretion amounting to lack or

excess of jurisdiction to: (1) PGMA and ES Ermita for authorizing, permitting,
and tolerating, both expressly and impliedly, the execution and continued
implementation of the JMSU; (2) the DFA Secretary when he participated in
the planning, negotiations, and preparation which led to the signing and
approval of the JMSU; (3) the DOE Secretary in issuing a permit to the PNOC-
EC which constituted the Philippine Government's approval to the JMSU; (4)
the PNOC for entering into an agreement with foreign-owned corporations
for large-scale exploration of petroleum and mineral oils within Philippine-
owned and claimed territory; and (5) the PNOC-EC for being an assignee of
the rights and obligations of the PNOC under the JMSU. 14
Petitioners sought an exception to the rule that a petition for certiorari
or prohibition should be accompanied by an official or certified true copy of
the document subject thereof. They claimed that Ocampo made a formal
request to the DFA for the official copy of the JMSU. However, the DFA
Secretary referred Ocampo's letter request to then House of Representatives
(HR) Speaker Prospero Nograles (Speaker Nograles) because per the PNOC,
a copy of the agreement was forwarded to the HR. In view of the JMSU's
confidentiality clause, the DFA Secretary claimed that the HR may be in a
better position to address the request. Ocampo sent a separate letter to
Speaker Nograles and even made a parliamentary inquiry during the HR's
plenary session on April 28, 2008. Yet, as of the date of the filing of the
petition, he did not receive any reply from Speaker Nograles. 15
Petitioners averred that a petition for certiorari and prohibition is
proper to assail the constitutionality of the JMSU. Likewise, direct recourse to
Us is justified due to: (1) the serious and grave constitutional questions
involved in the case; (2) the repercussions of the unconstitutional acts of
respondents on the country's national economy and patrimony, national
sovereignty, territorial integrity, and national interest; and (3) the novelty of
the issues involved. 16
Subsequently, petitioners explained that they impleaded PGMA in the
petition because the case is a mere special civil action, the purpose of which
is not to subject the president to any penalty, punishment, or damages for
her unconstitutional acts. In addition, the exceptions to the doctrine of
immunity from suit are present, which are: (1) where the government itself
violated its own laws; and (2) to restrain the public officer from enforcing an
act claimed to be unconstitutional. 17 Petitioners prayed that We annul the
JMSU as well as declare it unconstitutional and void. They also asked that
We enjoin the respondents from further implementing the agreement.
Meanwhile, on June 30, 2008, the JMSU expired. 18
Commenting on the petition, respondents, through the Office of the
Solicitor General (OSG), foremost argued that PGMA is not a proper
respondent in the petition because the president is immune from suit. Thus,
she should be excluded outright as a lead respondent in the case. The OSG
alleged that the president and her cabinet members are also not liable for
the execution of the JMSU since they are not parties to the agreement. The
JMSU was executed by PNOC, a government corporation that possesses a
personality separate and distinct from the Republic. Under its charter, the
PNOC has the power to enter into contracts, hence the execution of the JMSU
is its exclusive corporate act and may not be imputed to the Republic. The
doctrine of qualified political agency does not apply. 19
Respondents insisted that the petition fails to make a case for
certiorari and prohibition. The execution of a commercial contract within the
powers vested in a corporation under its charter is both executive and
discretionary in nature. More, the petition does not present a justiciable
controversy because the JMSU already expired on June 30, 2008. Per
certification 20 from the PNOC-EC, the PNOC has not renewed the JMSU.
Moreover, the issues raised in the petition are factual and would require the
presentation of evidence, which is not allowed in a petition for certiorari and
prohibition. Respondents maintained that petitioners' proper remedy is an
ordinary civil action for annulment of contracts cognizable by the Regional
Trial Courts (RTC). 21
In their reply, petitioners countered that they did not file the petition to
harass PGMA. Instead, the petition was filed for her to perform her official
duties and functions in accordance with the 1987 Constitution. They claimed
that she is accountable for the execution and implementation of the JMSU
because she did not repudiate the act of the DOE Secretary in issuing a
permit which constituted the Republic's approval of the agreement. Without
such approval, the JMSU would not be binding on the Republic. Therefore, it
does not matter that the PNOC is a government-owned and controlled
corporation (GOCC) which possesses a personality separate and distinct from
the Republic. The fact remains that even if the Parties had already signed
the JMSU, the approval of the Republic is needed to make it binding. 22
As regards the issue of mootness, petitioners argued that all the
exceptions to the moot and academic principle are present in this case. 23
They also maintained that the petition does not need a trial on the facts
since the lis mota of the case is whether the JMSU is unconstitutional. They
insisted that the Court may take judicial notice of the fact that as far as the
people belonging to the oil and gas industry are concerned, seismic work,
survey, or mapping is an integral part of and an exploration method in the
exploration process of petroleum and other mineral oils, and not a mere pre-
exploration activity. 24
In Our Resolution 25 dated October 20, 2009, We gave due course to
the petition and ordered the parties to submit their respective memoranda.
We did not act on petitioners' prayer for an injunctive writ.
The Memorandum 26 of petitioners reiterated the arguments found in
their petition and reply. Respondents, in their Memorandum, 27 hastened to
add that the JMSU is constitutional. They alleged that: (1) the JMSU involves
pre-exploration activities, hence it is not within the ambit of Section 2,
Article XII of the 1987 Constitution which contemplates the EDU of natural
resources; (2) assuming that the JMSU could be attributed to the State, the
pre-exploration activities comply with the constitutional requirement that
natural resources shall be within the full control and supervision of the State;
and (3) the modalities prescribed in the 1987 Constitution for EDU of natural
resources does not apply to the JMSU. 28
Issues
The petition raises the following issues:
I. Procedural issues:
A. Whether the president may be impleaded as a respondent;
B. Whether the writs of certiorari and prohibition are proper to
assail the constitutionality of the JMSU;
C. Whether the doctrine of hierarchy of courts was violated;
and
D. Whether the requisites of judicial review are present.
II. On the merits, whether the JMSU is unconstitutional.
Our Ruling
We grant the petition.
I.
We shall first address the alleged procedural infirmities plaguing the
petition.
A
PGMA is an improper party to the petition
At the outset, PGMA is improperly impleaded in the case. Though not
expressly reserved in the 1987 Constitution, the rule that the president is
immune from suit during his/her tenure remains preserved under our system
of government. It is well-understood in jurisprudence that even the framers
of the present Constitution did not see the need to expressly state it in the
text of the highest law. 29 In David v. Macapagal-Arroyo, 30 We explained
that it will degrade the dignity of the high office of the president, the head of
the state, if he/she can be dragged into court litigations while serving as
such. Unlike the legislative and judicial branches, only one constitutes the
executive branch, hence anything that impairs his/her usefulness in the
discharge of his/her duties necessarily impairs the operations of the
government. 31
Petitioners, however, insist that the case is merely for the issuance of
writs of certiorari and prohibition, which does not involve the determination
of any criminal or administrative liability. 32 Further, the president would not
be distracted from her duties since she has the OSG to prepare, read, and
file pleadings on her behalf. We are not persuaded. CAIHTE
Similar arguments were raised in De Lima v. Duterte, 33 which is a

petition for the issuance of a writ of habeas data against then-President
Rodrigo Roa Duterte and other government officials. We held that
presidential immunity does not hinge on the nature of the suit. Its purpose is
not intended to immunize the president from liability or accountability but to
assure that the exercise of his/her duties is free from any distractions. While
indeed a case against the president can be handled by the OSG, any
litigation, big or small, naturally serves as a distraction to a party-litigant. A
litigant cannot simply leave the course and conduct of the proceedings
entirely to his/her counsel. Simply put, the president's immunity from suit
has no qualification or restriction. The president cannot be sued while
holding such office. 34
Accordingly, We find it proper to drop PGMA as a respondent in this
case considering that she was then the incumbent president when the
petition was filed on May 21, 2008. 35
B
Certiorari and/or prohibition are proper remedies
The writs of certiorari and prohibition are proper remedies to assail the
constitutionality of the JMSU and to determine whether respondents
committed grave abuse of discretion amounting to lack or excess of
jurisdiction.
I n Araullo v. Aquino III, 36 We distinguished between the ordinary
nature and function of the writs of certiorari and prohibition under Rule 65 of
the Rules of Court and the remedies of certiorari and prohibition as vehicles
to apply Our "expanded certiorari jurisdiction" 37 under the second
paragraph of Section 1, Article VIII of the 1987 Constitution. The former is
confined to errors of jurisdictions committed by a tribunal, board, or officer
exercising judicial, quasi-judicial, or ministerial functions (as in the case of
prohibition); while the latter is broader in scope and reach as they are
remedies to set right, undo and restrain any act of "grave abuse of discretion
amounting to lack or excess of jurisdiction by any branch or instrumentality
of the government, even if the latter does not exercise judicial, quasi-
judicial, or ministerial functions." 38 We declared that petitions for certiorari
and prohibition are appropriate vehicles to raise constitutional issues and/or
prohibit or nullify the acts of legislative and executive officials.
In this light, We reject respondents' argument that the proper remedy
is for petitioners to file an ordinary civil suit for annulment of contract in the
RTC. The petition not only prays for annulment of contract but imputes grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
respondents, which is within the province of the writs of certiorari and
prohibition under Our expanded jurisdiction.
C
Direct recourse to Us is justified
This Court, the Court of Appeals, and the RTC have concurrent original
jurisdiction over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus. However, the doctrine of hierarchy of courts
dictates that, as a rule, petitions for the issuance of extraordinary writs
should first be filed in the lower-ranked court. 39 Nonetheless, We have in
the past allowed direct recourse to Us on the ground of "serious and
important reasons" 40 which were summarized in The Diocese of Bacolod v.
Commission on Elections, 41 to wit:
(1) When there are genuine issues of constitutionality that
must be addressed at the most immediate time.
(2) When the issues involved are of transcendental
importance.
(3) Cases of first impression.
(4) The constitutional issues raised are better decided by
the Court.
(5) Exigency in certain situations.
(6) The filed petition reviews the act of a constitutional
organ.
(7) When petitioners rightly claim that they had no other
plain, speedy, and adequate remedy in the ordinary course of law
that could free them from the injurious effects of respondents' acts in
violation of their right to freedom of expression.
(8) The petition includes questions that are "dictated by
public welfare and the advancement of public policy, or demanded by
the broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was considered as clearly an
inappropriate remedy." 42
Significantly, We clarified in Gios-Samar, Inc. v. Department of
Transportation and Communications 43 that the presence of one or more of
these "special and important reasons" is not the decisive factor in permitting
the invocation of Our original jurisdiction for the issuance of extraordinary
writs. Rather, it is the nature of the question raised by the parties in these
exceptions that enabled Us to take cognizance of the case. We can only
allow direct recourse when the issue before Us involves a pure question of
law.
Here, the issue of whether the JMSU violated Section 2, Article XII of
the 1987 Constitution not only presents a genuine issue of constitutionality,
but also involves a question of law. A question of law exists when there is
doubt or controversy as to what the law is on a certain state of facts, and
there is a question of fact when the doubt or difference arises as to the truth
or falsehood of facts, or when the query necessarily invites calibration of the
whole evidence considering mainly the credibility of witnesses, existence
and relevancy of specific surrounding circumstances, their relation to each
other and to the whole and probabilities of the situation. Unlike a question of
fact, no examination of the probative value of the evidence would be
necessary to resolve a question of law. 44
We could resolve the question on the legality of the JMSU without the
need for presentation of evidence. Thus, the direct recourse to Us is justified.
Meanwhile, petitioners' failure to attach a certified true copy of the
JMSU does not automatically make the case factual. In Malixi v. Baltazar, 45
We explained the reason behind the policy of requiring certified true copies
of the judgment or resolutions assailed in a petition for certiorari under Rule
65 of the Rules of Court, to wit:
There is a sound reason behind this policy and it is to ensure that the
copy of the judgment or order sought to be reviewed is a faithful
reproduction of the original so that the reviewing court would have a
definitive basis in its determination of whether, the court, body or
tribunal which rendered the assailed judgment or order committed
grave abuse of discretion. 46 (Citation omitted)
Although what is being assailed here is an agreement and not a
judgment or resolution of a court, the rationale is still the same. A certified
true copy ensures that the contract challenged before Us is a faithful
reproduction of the original. Only a photocopy of the JMSU was attached to
the petition. However, respondents did not question the authenticity of the
copy attached. It bears emphasis that PNOC could have argued that the
photocopy of the JMSU attached to the petition was not a faithful
reproduction of the original, but it did not do so. Further, petitioners amply
explained that they took steps to secure a certified true copy of the JMSU, to
no avail. First, Ocampo requested a copy from the DFA which referred him to
the HR because per PNOC, a copy of the agreement was forwarded to the
HR. The DFA, also a respondent in this case, did not deny that Ocampo
requested a copy of the JMSU and that none was given. Second, Ocampo
sent a separate letter to then HR Speaker Nograles and even made a
parliamentary inquiry during the HR's plenary session on April 28, 2008.
However, as of the date of the filing of the petition, he did not receive any
reply from Speaker Nograles. 47 The failure to attach a certified true copy off
the JMSU was therefore excusable. 48
D
Requisites of Judicial Review
For Us to exercise Our power of judicial review, the petition must
comply with. the following requisites: (1) there is an actual case or
controversy; (2) the person challenging the act must have "standing"; (3) the
question of constitutionality must be raised at the earliest possible
opportunity; and (4) the issue of constitutionality must be the very lis mota
of the case. 49
(i)
Respondents argue that the first requisite is missing because the
expiration of the JMSU rendered the case moot and academic.
An actual case or controversy involves a conflict of legal rights or an
assertion of opposite legal claims between the parties that is susceptible or
ripe for judicial resolution. A judicial controversy must neither be conjectural
nor moot and academic. 50 A moot and academic case is one that ceases to
present a justiciable controversy by virtue of supervening events so that a
declaration thereon would be of no practical use or value. Generally, courts
decline jurisdiction over such a case or dismiss it on the ground of mootness.
51
Nevertheless, the moot and academic principle is not a magic formula

that automatically dissuades Us from deciding a case. 52 We have, time and
again, decided cases otherwise moot and academic under the following
exceptions:
(1) There is a grave violation of the Constitution;
(2) The exceptional character of the situation and the paramount
public interest is involved;
(3) The constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public;
and
(4) The case is capable of repetition yet evading review. 53
I n David v. Macapagal-Arroyo, 54 We assumed jurisdiction over the

petitions for certiorari and prohibition assailing the constitutionality of the
president's declaration of a state of national emergency under Presidential
Proclamation (PP) No. 1017, although, during the pendency of the case, the
declaration was lifted. We found that all the exceptions to the moot and
academic principles are present such as: (1) petitioners alleged that PP No.
1017 and General Order No. 5 which implemented it violate the Constitution;
(2) the issues raised affect the public's interest since they involved the
freedom of expression, of assembly, and of the press; (3) the Court has the
duty to formulate guiding and controlling constitutional precepts; and (4) the
contested actions of the respondents are capable of repetition.
I n Araullo v. Aquino III, 55 We resolved the petitions for certiorari,
prohibition, and mandamus raising the issue of the constitutionality of the
Disbursement Acceleration Program (DAP) and the related issuances of the
Department of Budget and Management implementing it although it was
discontinued during the pendency of the case. We ruled that all the
exceptions to the moot and academic principle were present.
In Resident Marine Mammals of the Protected Seascape Tañon Strait v.
Reyes, 56 We decided the petitions for certiorari, prohibition, and mandamus
involving the validity of Service Contract No. 46, which allowed the
exploration, development, and exploitation of petroleum resources within
Tañon Strait, as null and void 57 even though the parties had mutually
terminated the contract during the pendency of the case. We held that
almost all the exceptions for the moot and academic principle are present.
Similarly, We rule that all the four exceptions to the moot and
academic principle obtain in this case.
First, the petition alleged that the JMSU gravely violated Section 2,
Article XII of the 1987 Constitution since the agreement allowed foreign-
owned corporations to explore the country's petroleum resources. Thus, in
Chavez v. Public Estates Authority, 58 We declared that supervening events,
whether intended or accidental, cannot prevent Us from rendering a decision
if there is a grave violation of the Constitution. Therein petitioner's principal
basis for assailing the renegotiation of the Joint Venture Agreement between
PEA and AMARI is its violation of Section 3, Article XII of the Constitution,
which prohibits the government from alienating lands of the public domain to
private corporations.
Second, the issue in this case is of paramount public interest as it
involves the alleged exploration of a portion of the South China Sea which
the Philippines considers to be part of its territory. In Miners Association of
the Phils., Inc. v. Factoran, Jr. , 59 We declared that the EDU of the country's
natural resources are matters vital to the public interest and the general
welfare of the people. Furthermore, the JMSU and its execution by PNOC is of
exceptional character as it was worded as a "pre-exploration" activity
among national oil corporations of three countries. In Narra Nickel Mining &
Development Corp. v. Redmont Consolidated Mines Corp. , 60 We found that
the intricate corporate layering utilized by the Canadian company is of
exceptional character and involves paramount public interest because it
undeniably affects the exploitation of the country's natural resources.
Third, We have the duty to resolve the novel issue of what constitutes
exploration under Section 2, Article XII of the 1987 Constitution for the
guidance of the bench and the bar. In Salonga v. Paño, 61 We stated that:
The setting aside or declaring void, in proper cases, of
intrusions of State authority into areas reserved by the Bill of Rights
for the individual as constitutionally protected spheres where even
the awesome powers of Government may not enter at will is not the
totality of the Court's functions.
The Court also has the duty to formulate guiding and
controlling constitutional principles, precepts, doctrines, or
rules. It has the symbolic function of educating bench and bar
on the extent of protection given by constitutional
guarantees. 62 (Emphasis supplied)
More, in Kilusang Mayo Uno v. Aquino III, 63 We noted that the third
exception to the mootness principle is corollary to Our power under Article
VIII, Section 5 (5) 64 of the 1987 Constitution. We may determine when there
is a need to formulate guiding and controlling constitutional principles or
rules in the cases brought before Us. Clamor from party-litigants is not a
requirement before We could exercise Our function of educating the bench
and the bar.
Fourth, agreements of the same character as the JMSU may be
entered into again by the government or any of its agencies and/or
instrumentalities.
(ii)
Standing or locus standi is the right of appearance in a court of justice
on a given question. To determine whether a party has standing, We apply
the direct injury test, 65 which dictates that a party challenging the
constitutionality of a law, act or statute must show "not only that the law is
invalid, but also that he[/she] has sustained or is in immediate or imminent
danger of sustaining some direct injury as a result of its enforcement, and
not merely that he[/she] suffers thereby in some indefinite way." 66
However, We have recognized cases brought by "non-traditional suitors" or
those parties who were not personally injured by the operation of a law or
any other government act, provided they met any of the following
requirements:
1.) For taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the
validity of the election law in question;
3.) For concerned citizens, there must be a showing that the issues
raised are of transcendental importance which must be settled
early; and
4.) For legislators, there must be a claim that the official action
complained of infringes their prerogatives as legislators. 67
Petitioners are suing as legislators, taxpayers, and citizens. At the time
of the filing of the case, they were incumbent members of the HR. They
claimed that the execution and implementation of the JMSU usurped the
power of the Congress relative to the country's natural resources under
Section 2, Article XII of the 1987 Constitution. They believed that the
employment of the word "State" in the provision necessarily includes the
participation of Congress in the EDU of natural resources. They claimed that
the acts of respondents infringed upon their prerogatives as legislators. 68
We agree.
I n La Bugal-B'laan Tribal Association, Inc. v. Ramos 69 (La Bugal), We
held that the text of Section 2, Article XII expressly provides the mandate of
the President and the Congress with respect to the EDU of natural resources.
The President is the official constitutionally mandated to enter into
agreements with foreign-owned corporations, while the Congress may review
the action of the President once it is notified of the contract within 30 days
from its execution. Hence, petitioners, as members of the HR, have standing
to file the suit.
Likewise, We find that petitioners also have legal standing to sue as
taxpayers. They alleged that Article 3 of the JMSU states that each Party
shall be responsible for the cost of its personnel designated for the
implementation of the agreement; while the expenses for the seismic work
and other activities of the JOC shall be shared by the Parties in equal shares.
Since the funds of the PNOC, a GOCC, are appropriated by Congress, the
implementation of the unconstitutional JMSU constitutes illegal disbursement
of public funds. 70
Similarly, petitioners have standing to sue as concerned citizens
because they were able to show that the issue of the constitutionality of the
JMSU involves transcendental importance. In Francisco, Jr. v. House of
Representatives, 71 We used determinants for the application of the doctrine
of transcendental importance which Justice Florentino P. Feliciano stated in
his separate opinion in Kilosbayan, Inc. v. Guingona, Jr. 72 These are: (1) the
character of the funds or other assets involved in the case; (2) the presence
of a clear case of disregard of a constitutional or statutory prohibition by the
public respondent agency or instrumentality of the government; and (3) the
lack of any other party with a more direct and specific interest in raising the
questions being raised. 73 All these are present in this case.
(iii)
I n Calleja v. Executive Secretary, 74 We clarified that "earliest
opportunity" means that the question of unconstitutionality of the act in
question should have been immediately raised in the court below. As the
present petition was directly filed to Us, We rule that, similar to Calleja, the
"earliest opportunity" requirement is complied with since the issue of
constitutionality of the JMSU was raised at the first instance.
(iv)
The requirement of lis mota means that the issue of constitutionality is
the heart of the controversy, that is, the case cannot be legally resolved
unless the constitutional question is determined. 75
Here, the relief prayed for by petitioners is the declaration of
unconstitutionality of the JMSU. We cannot dispose of the case on some
other ground, other than by determining its compliance with the relevant
provisions of the 1987 Constitution. Thus, the lis mota requirement is
complied with.
II.
Before proceeding to the substance of the case, We clarify that the
JMSU covers the portion of the South China Sea claimed by the Philippines,
China, and Vietnam. The ninth whereas clause of the agreement declared
that its signing will not undermine the basic positions held by the
Government of each Party on the South China Sea issue. However,
petitioners alleged that the Agreement Area is within the EEZ of the
Philippines and includes almost 80% of the Spratly Group of Islands. 76 This
is not disputed by respondents.
On September 5, 2012, then President Benigno C. Aquino III issued
Administrative Order (AO) No. 29 titled, "Naming the West Philippine Sea of
the Republic of the Philippines, and for Other Purposes." The AO stated that
the maritime areas on the western side of the Philippine archipelago shall be
named as the West Philippine Sea, which shall include the Luzon sea as well
as the waters around, within and adjacent to the Kalayaan Island Group and
Bajo De Masinloc, also known as the Scarborough Shoal.
Notwithstanding AO No. 29, We shall not refer to the Agreement Area
as the West Philippine Sea. As admitted by petitioners, no official copy of the
map covering the JMSU had been released to the public owing to the
confidentiality clause in the agreement. The maps attached to the petition
were from (1) an online news article, and (2) made by Prof. Giovanni Tapang,
Ph.D. of the National Institute of Physics, University of the Philippines-
Diliman based on the coordinates stated on the copy of the map from the
said article. 77 As such, We cannot assume that the Agreement Area is
included in the West Philippine Sea. We are only certain that based on the
attached maps and the non-rebutted claim of petitioners, the Agreement
Area is within the Philippines' EEZ. Therefore, whatever natural resources
found therein is owned by the Republic.
A
The JMSU involves exploration of petroleum resources
Petitioners assail the validity of the JMSU on the ground that it violates
Section 2, Article XII of the 1987 Constitution, which reads:
Section 2. All lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora
and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other
natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be
under the full control and supervision of the State. The State
may directly undertake such activities, or it may enter into
co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is
owned by such citizens. Such agreements may be for a period not
exceeding twenty-five years, renewable for not more than twenty-five
years, and under such terms and conditions as may be provided by
law. In cases of water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, beneficial
use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea, and exclusive economic zone, and
reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens, as well as cooperative fish
farming, with priority to subsistence fishermen and fishworkers in
rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance for
large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and
conditions provided by law, based on real contributions to the
economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of
local scientific and technical resources.
The President shall notify the Congress of every contract
entered into in accordance with this provision, within thirty days from
its execution. (Emphasis supplied)
The first sentence of Section 2 embodies the Regalian doctrine or Jura
Regalia, 78 which means that all natural resources are owned by the State.79
The provision also lays down the different modes or ways that the State may
undertake in the EDU of natural resources.
According to petitioners, the JMSU is illegal because it allows two
foreign corporations wholly-owned by China and Vietnam to undertake large-
scale exploration of the country's petroleum resources, while the
Constitution reserves the EDU of natural resources to Filipino citizens or
corporations or associations at least sixty (60%) percent of whose capital is
owned by such citizens. 80 To strengthen their claim that the JMSU involves
exploration of natural resources, they referred to Article 4.1 81 of the
agreement, providing for "seismic work" or the collection and processing of
2D and/or 3D seismic lines. They quoted several encyclopedias stating that
seismic survey is an exploration method. They prayed that We take judicial
notice that based on the available literature, seismic work, survey, or
mapping is an integral part of the exploration process of petroleum and
mineral oils. 82
Respondents countered that Section 2, Article XII of the 1987
Constitution does not apply because the provision contemplates EDU of
natural resources, whereas the JMSU only involves pre-exploration activities.
They maintained that seismic surveying as a method of data acquisition
does not by itself amount to exploration. Seismic surveys are not only
conducted for purposes of exploration of mineral oils but may be conducted
for other purposes sanctioned by international law. 83
To resolve the opposing legal claims of the parties, We must define the
term "exploration" as contemplated in the 1987 Constitution. aScITE
We employ the first principle of constitutional construction, that is,

verba legis or the plain meaning rule, which provides that wherever possible,
the words used in the Constitution must be given their ordinary meaning
except where technical terms are employed. 84 Ordinarily, "exploration"
means "the activity of searching and finding out about something." 85
Technically, under Republic Act (R.A.) No. 7942 or the Philippine Mining Act
of 1995, "[e]xploration means the searching or prospecting for mineral
resources by geological, geochemical or geophysical surveys, remote
sensing, test pitting, trending, drilling, shaft sinking, tunneling, or any other
means for the purpose of determining the existence, extent, quantity and
quality thereof and the feasibility of mining them for profit." 86 Additionally,
under R.A. No. 387 or the Petroleum Act of 1949, 87 "[e]xploration means all
work that have for their object the discovery of petroleum, including, but not
restricted to, surveying and mapping, aerial photography, surface geology,
geophysical investigations, testing of subsurface conditions by means of
borings or structural drillings, and all such auxiliary work as are useful in
connection with such operations." 88 Thus, exploration, whether used in the
ordinary or technical sense pertains to a search or discovery of something.
Applying the foregoing definitions, We rule that the JMSU involves the
exploration of the country's natural resources, particularly petroleum. The
text of the fifth whereas clause of the JMSU is clear as to the objective of the
agreement:
WHEREAS, the Parties expressed desire to engage in a joint
research of petroleum resource potential of a certain area of the
South China Sea as a pre-exploration activity[.] 89 (Emphasis
supplied)
The JMSU was executed for the purpose of determining if petroleum
exists in the Agreement Area. That the Parties designated the joint research
as a "pre-exploration activity" is of no moment. Such designation does not
detract from the fact that the intent and aim of the agreement is to discover
petroleum which is tantamount to "exploration."
Pursuant to the Petroleum Act of 1949, discovery of petroleum may be
done thru surveying and mapping and geophysical investigation.
Significantly, the JMSU employs seismic survey, which is a geophysical
survey method. The said method is particularly well suited to the
investigation of the layered sequences in sedimentary basins that are the
primary targets for oil or gas. 90 Seismic surveying can be carried out on
land or at sea and is used extensively in offshore geological surveys and the
exploration for offshore resources. 91 Other appropriate survey methods for
the exploration of fossil fuels (oil, gas, coal) include gravity, magnetic, and
electromagnetic surveys. 92
Respondents argued that seismic survey has many uses in
international law and is not confined to petroleum exploration. This might be
true, but We are not concerned about these other uses. Instead, We are
looking into the purpose of seismic survey in the context of the JMSU.
Respondents themselves supplied the answer in their Memorandum, to wit:
The parties to the JMSU were solely engaged in pre-exploration
activities as stipulated in the said Agreement. Specifically, the
parties to the Tripartite Agreement were jointly engaged in
"basin evaluation" or the joint research of petroleum resource
potential through the collection and processing/reprocessing
of 2D and/or 3D seismic data, although no 3D seismic data was
actually acquired. The general evaluation on a basin-wide scale of the
area was conducted with the objective of arriving at a general
indication of its petroleum resource potential. x x x 93 (Emphasis
supplied)
Undeniably, seismic survey was utilized in the JMSU to discover if
petroleum exists in the Agreement Area and not for any other use.
Nevertheless, respondents insisted that while data gathering of seismic
lines may be part of the process of determining the existence of mineral
resources in large quantities, such act without more, and without the
ultimate intent of extracting the resources explored does not amount to
exploration. 94 Respondents are grasping at straws. Whether "exploration" is
defined in the ordinary sense or under our mining and petroleum laws, intent
to extract and/or actual extraction is not a requirement. The end-all and be-
all of "exploration" is the search or discovery of the existence of valuable
natural resources.
I n Apex Mining Co., Inc. v. Southeast Mindanao Gold Mining
Corporation, 95 We held that an exploration permit issued under Presidential
Decree (PD) 463, the old law governing the EDU of mineral resources, does
not include the right to extract and utilize the minerals found. Thus:

Even assuming arguendo that SEM obtained the rights attached
in EP 133, said rights cannot be considered as property rights
protected under the fundamental law.
An exploration permit does not automatically ripen into
a right to extract and utilize the minerals; much less does it
develop into a vested right. The holder of an exploration permit
only has the right to conduct exploration works on the area
awarded. Presidential Decree No. 463 defined exploration as "the
examination and investigation of lands supposed to contain valuable
minerals, by drilling, trenching, shaft sinking, tunneling, test pitting
and other means, for the purpose of probing the presence of mineral
deposits and the extent thereof." Exploration does not include
development and exploitation of the minerals found.
Development is defined by the same statute as the steps
necessarily taken to reach an ore body or mineral deposit so
that it can be mined, whereas exploitation is defined as "the
extraction and utilization of mineral deposits." x x x 96
(Emphasis supplied)
All told, the JMSU involves exploration of the country's petroleum
resources, hence it falls within the ambit of Section 2, Article XII of the 1987
Constitution.
B
The JMSU is unconstitutional
The EDU of natural resources shall be under the full control and
supervision of the State. The State may undertake such activities through
the following modes:
(1) Directly;
(2) 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; and
(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. 97
For the JMSU to be valid, it must be executed and implemented under
one of the four modes stated. 98 Obviously, the JMSU does not fall in the first
mode as it was not undertaken solely by the State. It neither involves the
second nor the third modes considering that the other parties to the
agreement are wholly-owned foreign corporations. The fourth mode is the
most feasible route for the JMSU since it allows foreign-owned corporations
to participate in the large-scale exploration, development, and utilization of
petroleum.
Significantly, in La Bugal, We held that the fourth paragraph of Section
2, Article XII of the 1987 Constitution (referring to the fourth mode or
Financial and Technical Assistance Agreements [FTAAs]) is an exception to
the general norm established in the first paragraph of Section 2 which limits
or reserves to Filipino citizens and corporations at least 60 percent owned by
such citizens the EDU of natural resources. We also declared in the same
case that the fourth mode is not restricted to financial or technical
agreements but actually pertains to service contracts albeit with safeguards
to avoid the abuses prevalent under the 1973 Constitution. 99 Thus:
Applying familiar principles of constitutional construction to the
phrase agreements involving either technical or financial assistance,
the framers' choice of words does not indicate the intent to exclude
other modes of assistance, but rather implies that there are
other things being included or possibly being made part of
the agreement, apart from financial or technical assistance.
The drafters avoided the use of restrictive and stringent
phraseology; a verba legis scrutiny of Section 2 of Article XII
of the Constitution discloses not even a hint of a desire to
prohibit foreign involvement in the management or operation
of mining activities, or to eradicate service contracts. Such
moves would necessarily imply an underlying drastic shift in
fundamental economic and developmental policies of the State. That
change requires a much more definite and irrefutable basis than
mere omission of the words "service contract" from the new
Constitution.
Furthermore, a literal and restrictive interpretation of this
paragraph leads to logical inconsistencies. A constitutional provision
specifically allowing foreign-owned corporations to render financial or
technical assistance in respect of mining or any other commercial
activity was clearly unnecessary; the provision was meant to
refer to more than mere financial or technical assistance.
Also, if paragraph 4 permits only agreements for financial or
technical assistance, there would be no point in requiring that they
be "based on real contributions to the economic growth and general
welfare of the country." And considering that there were various long-
term service contracts still in force and effect at the time the new
Charter was being drafted, the absence of any transitory provisions to
govern the termination and closing-out of the then existing service
contracts strongly militates against the theory that the mere omission
of "service contracts" signaled their prohibition by the new
Constitution. 100 (Emphasis supplied)
The threshold issue is whether the JMSU qualifies under the fourth
mode. We rule in the negative.
The JMSU is neither an FTAA nor a service contract. First, it does not
involve any financial or technical assistance between and among the PNOC,
the CNOOC, and PETROVIETNAM. Under Article 3 thereof, each of the parties
will shoulder the costs of its own personnel designated for the
implementation of the agreement and as to the seismic work, they will share
the cost in equal shares. There is also no provision in the agreement relating
to any technical assistance. Second, the JMSU is not a service contract as the
term is defined in Presidential Decree (PD) No. 87 or the Oil Exploration and
Development Act of 1972, which is the general law on exploration,
development, and utilization of indigenous petroleum in the Philippines. 101
In a service contract, service and technology are furnished by the service
contractor for which it shall be entitled to the stipulated service fee while
financing is provided by the Government to which all petroleum produced
shall belong. 102 Respondents themselves admitted that the JMSU is not a
service contract 103 and upon this assertion they averred that they cannot be
compelled to comply with the modalities prescribed in the Constitution.
However, as stated earlier, the JMSU involves exploration activities, thus it
must comply with Section 2, Article XII of the 1987 Constitution.
Assuming arguendo that the JMSU is a service contract, still, it does not
satisfy the standards that We laid down in La Bugal, which are as follows:
Such service contracts may be entered into only with respect to
minerals, petroleum and other mineral oils. The grant thereof is
subject to several safeguards, among which are these requirements:
(1) The service contract shall be crafted in accordance with
a general law that will set standard or uniform terms, conditions and
requirements, presumably to attain a certain uniformity in provisions
and avoid the possible insertion of terms disadvantageous to the
country.
(2) The President shall be the signatory for the government
because, supposedly before an agreement is presented to the
President for signature, it will have been vetted several times over at
different levels to ensure that it conforms to law and can withstand
public scrutiny.
(3) Within thirty days of the executed agreement, the
President shall report it to Congress to give that branch of
government an opportunity to look over the agreement and interpose
timely objections, if any. 104
It is glaring that the JMSU does not meet the second and third
conditions. Even respondents argued that the agreement is signed not by
the president but by the PNOC through its president and chief executive
officer.
In fine, the JMSU is unconstitutional for allowing wholly-owned foreign
corporations to participate in the exploration of the country's natural
resources without observing the safeguards provided in Section 2, Article XII
of the 1987 Constitution.
C
JMSU is not similar with the MOU
with the Government of Australia
Respondents compared the JMSU with the Republic's Memorandum of
Understanding (MOU) with the Government of Australia. They alleged that
the MOU allowed an Australian survey vessel to operate in Philippine waters
to gather seismic data and provide expertise to the Philippine Government in
the development of domestic energy resources. They cited Opinion No. 157,
s. of 1990 of the Department of Justice (DOJ) which declared that the MOU
envisions pre-exploration activities which are not covered by the limitation
found in Section 2, Article XII of the 1987 Constitution. 105 The relevant
portions of the DOJ Opinion read:
It appears that the proposed offshore seismic project
aims to provide data and expertise to the Philippine
Government in the determination and development of
significant domestic energy resources and to provide training
in data gathering, processing and interpretation technique
which would enable the Office of Energy Affairs (OEA) to
conduct similar projects in the future and to administer
petroleum exploration and development activities effectively.
The project proposal is proposed to be covered by a Memorandum of
Understanding (MOU) between the Government of the Republic of the
Philippines and the Government of Australia and which MOU should
specifically address the following concerns: (1) the need for the
Australian survey vessel to operate in the Philippine waters in order
to gather the seismic data (2) the proposal of the Australian
Government that Australian oil exploration and service companies,
together with their Philippine counterparts, be given preference in
obtaining service contract over the areas covered by the seismic
program.
We find no legal objection to the project proposal and
the execution of an MOU covering it. As we see it, the project
proposal which involves data gathering, processing and
interpretation techniques envisions pre-exploration activities
which are not covered by the aforequoted Constitutional
limitation.
The project proposal is in the nature of a government-
to-government assistance or cooperation under which the
Australian Government would undertake to provide funding in
the amount of $2.67 million out of the project's estimated
cost of $2.73 million. The balance would be provided by the
Philippine Government in the form of staff cost and other ancillary
support. The project was initiated by the Philippine Government to
promote its oil and gas exploration activities which are being
hampered by its lack of infrastructure and limited finances. 106
(Emphasis supplied)
Consequently, respondents maintained that the JMSU was undertaken
to address the lack of infrastructure and expertise to secure the country's oil
and gas exploration activities. They also asserted that the JMSU was
executed under the same modality as that of the pre-exploration activity
with that of the Government of Australia. 107
Respondents are mistaken. First, the JMSU and the MOU have different
objectives. The JMSU is a joint undertaking to determine if petroleum exists
in a certain area of the South China Sea while the MOU, as stated in the DOJ
Opinion quoted, "aims to provide data and expertise to the Philippine
Government in the determination and development of significant domestic
energy resources and to provide training in data gathering, processing and
interpretation technique which would enable the Office of Energy Affairs
(OEA) to conduct similar projects in the future and to administer petroleum
exploration and development activities effectively." The Government of
Australia also provided most of the funding for the MOU. 108 In contrast, the
JMSU does not state that CNOOC and PETROVIETNAM would provide any
training or assistance to PNOC for the exploration of the country's natural
resources. Second, the JMSU was entered into by the PNOC with its
counterpart national oil companies in China and Vietnam; whereas, the MOU
was proposed to be entered into between the Government of the Philippines
itself and the Government of Australia.
In any event, even assuming that the MOU and the JMSU are of the
same nature, We are not bound by the opinion of the DOJ. More importantly,
the constitutionality of the MOU is not the subject of the case before Us.
D
The State has no full control and
supervision under the JMSU
Petitioners next argued that even assuming that the activities under
the JMSU are pre-exploratory, the agreement is still unconstitutional because
under Article 11.2 thereof all the information acquired for the fulfillment of
the seismic work and their interpretation shall be jointly owned by the
Parties. For petitioners, the provision subjected the Republic's dominion or
ownership of the petroleum and other mineral oils in the Agreement Area to
a compromise or concession with foreign governments, thereby effectively
conceding or forfeiting its ownership over the said natural resources. 109
Respondents countered that petitioners confused the scientific data
generated from an international cooperative effort between government
corporations with the ownership of natural resources from which such data
was derived. 110 The acquisition of preliminary scientific data to determine
the possibility of the existence of natural resources is not equivalent to the
acquisition of rights over those petroleum resources. According to
respondents providing access to the scientific data generated in the JMSU
does not diminish the State's full control and supervision over its resources.
They explained that: (1) the agreement do not impinge on the ownership
over the islands, waters, and resources in the South China Sea since it
explicitly provides in its ninth whereas clause that its signing will not
undermine the basic positions held by the Government of each Party on the
South China Sea issue; (2) the agreement is between government
corporations that have personalities distinct from the national government;
(3) the agreement on the treatment of the data generated from the JMSU is
an exercise of the State's power of auto-limitation under international law;
(4) assuming that the JMSU may be attributed to the Republic, it is part of
the cooperative efforts to undertake a marine scientific research under
Article 239, Part III of the United Nations Convention on the Law of the Sea
(UNCLOS); and (5) the JMSU is the realization of the intent of the Declaration
on the Conduct of Parties in the South China Sea dated November 4, 2002 to
prevent the escalation of conflict and to encourage the parties to explore or
undertake cooperative activities pending a comprehensive settlement and
durable settlement of the disputes in the area. 111
In a nutshell, respondents' arguments may be grouped into two. On
one hand, the JMSU does not involve the national government but
government corporations of the Philippines, China, and Vietnam. On the
other hand, even if the Republic is involved, it could allow the activities
under the JMSU pursuant to the State's power of auto-limitation under
international law. In case, the JMSU is treated as an international agreement,
the State had expressed its consent to share information on the Agreement
Area without conceding full ownership, control, and supervision of its natural
resources. 112
The questions that arise are: (1) whether the information acquired from
the seismic survey in the Agreement Area may be legally shared by the
PNOC to CNOOC and PETROVIETNAM; and (2) whether by sharing the said
information, the State has effectively lost supervision and control of the
country's petroleum resources in the Agreement Area. DETACa
Preliminarily, We find that the government approved the JMSU although

the President is not a signatory to the agreement. Under the eighth whereas
clause of the JMSU, it was declared by the parties that "under the
authorization of the Philippine Government, PNOC has the exclusive
right to sign this Agreement with CNOOC and PETROVIETNAM for a joint
marine seismic undertaking with the Agreement Area." 113 This was not
disputed by respondents. More, Article 11.6 of the JMSU states:
"11.6 After the Agreement is signed, it shall be approved
by the Parties' respective governments. The latest date of such
approvals shall be the effective date of the Agreement. The Parties
agree that the first day of the month following the effective date of
the Agreement shall be the date of commencement of the
implementation of the Agreement. The Agreement shall not be
binding on the Parties should any Party fail to obtain its government's
approval within three (3) months after the date on which the
Agreement is signed." 114
On this score, petitioners claimed that the government gave its
approval of the JMSU thru a permit issued by the DOE Secretary on June 10,
2005. Respondents did not deny this as they only insisted that they are not
parties to the agreement except for PNOC. 115 Significantly, the execution,
implementation, and expiration of the JMSU are undisputed. Hence, it is
undeniable that the government gave its approval. Otherwise, the
agreement will not be effective as stated in Article 11.6. The Government's
approval of the JMSU is the operative act which made the agreement binding
on the Parties. It is safe to assume that the government read the terms of
the JMSU before concurring thereon. Considering the foregoing, We hold that
although the JMSU was only signed by the PNOC, the same also binds the
Government.
Answering the questions posed, First, We rule that the PNOC and/or the
Government cannot legally share the information acquired in the
Agreement. The information regarding on the existence/non-existence of
petroleum in the Agreement Area is a product of exploration. It is part of the
exploration itself inasmuch as the petroleum discovered. The fact that under
the JMSU, CNOOC and PETROVIETNAM were not granted rights to extract or
to share in the petroleum resources is immaterial. Extraction is not a part of
exploration but is already within the realm of "utilization" of natural
resources. 116
As former Supreme Court Associate Justice Antonio T. Carpio noted in
his dissenting opinion in La Bugal, "[t]he State cannot allow foreign
corporations, except as contractual agents under the full control and
supervision of the State, to explore our natural resources because
information derived from such exploration may have national security
implications." 117
Subsequently, the argument of respondents that the JMSU is just
entered into among government corporations (that of the Philippines, China,
and Vietnam) further highlight the unconstitutionality of the agreement. In
the first place, the PNOC has no power to enter into contracts involving the
exploration of the country's petroleum resources with foreign-owned
corporations. Even as We earlier found that the Government gave its
approval of the JMSU through the DOE, Section 2, Article XII of the 1987
Constitution expressly reserves to the President the power to enter into
contracts involving the EDU of natural resources with foreign-owned
corporations. Such power cannot be delegated to another public official or
government agency and/or instrumentality. The doctrine of qualified political
agency does not apply. 118 It is the President who exercises the power of
control in the EDU of the national resources on behalf of the State. 119
We also reject respondents' invocation of the State's power of auto-
limitation or that property of a state-force due to which it has exclusive
capacity of legal self-determination and self-restriction. Pursuant to this, the
"State may, by its consent, express or implied, submit to a restriction of its
sovereign rights." 120 Here, the consent of the State to the alleged restriction
of its sovereign rights over the Agreement Area is wanting because the
President did not personally sign the JMSU.
Similarly, We cannot sustain the validity of the JMSU even if we treat it
as an international agreement. This is because in our system of government,
the President, being the head of the State, is the chief architect of our
foreign policy. 121 The JMSU was not also concurred in by at least two-thirds
of all the members of the Senate. 122
Second, We rule that the PNOC and/or the government, in agreeing
that the information about our natural resources shall be jointly owned by
CNOOC and PETROVIETNAM, illegally compromised the control and
supervision of the State over such information. Articles 11.2 and 11.4 of the
JMSU provide:
11.2 All the data and information acquired for the fulfillment
of the Seismic Work referred to in Article 4 hereof and their
interpretation shall be jointly owned by the Parties . In the event
any Party wishes to sell or disclose the above-mentioned data and
information after the expiration of the confidentiality term, prior
written consent thereof shall be obtained from the rest of the
Parties.

xxx xxx xxx
11.4 The Parties' rights, interest and obligations
under the Agreement shall be on equal basis. 123 (Emphasis
supplied)
It is apparent from the foregoing that the PNOC bargained away the
State's supposed full control of all the information acquired from the seismic
survey as the consent of CNOOC and PETROVIETNAM would be necessary
before any information derived therefrom may be disclosed.
In their last attempt to maintain the constitutionality of the JMSU,
respondents claimed that it was signed to foster international cooperation
and to prevent the escalation of conflict in the South China Sea. These
intentions are noble, and it is not for Us to question the wisdom behind the
State's foreign policy. Nevertheless, as early as Angara v. The Electoral
Commission, 124 We declared that the Supreme Court is the final arbiter that
checks the other departments in the exercise of their power to determine
the law, and to declare executive and legislative acts void if violative of the
Constitution. By virtue of Our role as the guardian of the Constitution, 125 We
hereby declare the JMSU unconstitutional for failure to comply with Section
2, Article XII of the 1987 Constitution.
WHEREFORE, the petition is GRANTED. The Tripartite Agreement for
Joint Marine Seismic Undertaking in the Agreement Area in the South China
Sea By and Among China National Offshore Oil Corporation and Vietnam Oil
and Gas Corporation and Philippine National Oil Company is declared
UNCONSTITUTIONAL and VOID.
SO ORDERED.
Caguioa, Inting, M.V. Lopez, Rosario, J.Y. Lopez, Dimaampao, Marquez,
Kho, Jr. and Singh, JJ., concur.
Gesmundo, C.J. and Leonen, J., see separate concurring opinion.
Hernando, * J., is on leave.
Lazaro-Javier, J., pls. see dissent.
Zalameda, J., please see dissenting opinion.
Separate Opinions
GESMUNDO, C.J., concurring:
This case involves the constitutionality of the Tripartite Agreement for
Joint Marine Seismic Undertaking (JMSU) in the Agreement Area.
The JMSU was executed in 2005 by China National Offshore Oil
Corporation (CNOOC), Vietnam Oil and Gas Corporation (VOGC), and the
Philippine National Oil Company (PNOC) (collectively referred to as Parties),
with the authorization of their respective governments. 1 Article 4 (1) of the
JMSU authorizes the Parties to conduct seismic work in the covered area:
seismic lines shall be collected and processed and certain amount of
existing 2D seismic lines shall be reprocessed within the Agreement
Term. The seismic work shall be conducted in accordance with the
seismic program unanimously approved by the Parties taking into
account the safety and protection of the environment in the
Agreement Area.
On the substantive aspect, petitioners argue that the large-scale
exploration of petroleum and mineral oils by wholly-owned foreign
corporations in the Agreement Area violates Article XII, Section 2 (1) of the
1987 Constitution. Petitioners claim that a seismic survey is an exploration
method. Respondents counter that the JMSU involves only pre-exploration
activities, which are outside of the scope of the exploration, development,
and utilization (EDU) of natural resources under the Constitution. They
maintain that seismic surveying, as a method of data acquisition, does not
by itself amount to exploration. They add that seismic surveys are not only
conducted for purposes of exploration of mineral oils but may be conducted
for other purposes sanctioned by international law.
The ponencia declares the JMSU unconstitutional, holding that seismic
survey constitutes exploration as contemplated under the Constitution. It
stresses the constitutional requirement that the EDU "shall be under the full
control and supervision of the State," and rules that the PNOC and/or the
government illegally compromised the required control and supervision
when it agreed that the information over the natural resources would jointly
be owned with CNOOC and VOGC. It concludes that the PNOC bargained
away the State's supposed full control over all information acquired from the
seismic survey. The ponencia stresses that the fact that the JMSU was
entered into by PNOC with foreign government corporations (not by the
State) further highlights the unconstitutionality of the JMSU, because PNOC
has no power to enter into contracts involving the exploration of the
country's petroleum resources with foreign-owned corporations. The
ponencia notes that the government approved the JMSU even though the
President is not a signatory to it. Government approval was supposedly
given through a permit issued by the Department of Energy (DOE) Secretary
in 2005.
I concur with the ponencia insofar as it holds unconstitutional the JMSU
because it was not entered into by the President as required under Article
XII, Section 2 of the Constitution. The relevant portions of said provision
state thus:
SECTION 2. All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural
lands, all other natural resources shall not be alienated. The
exploration, development, and utilization of natural resources shall be
under the full control and supervision of the State. The State may
directly undertake such activities, or it may enter into co-production,
joint venture, or production-sharing agreements with Filipino citizens,
or corporations or associations at least sixty per centum of whose
capital is owned by such citizens. Such agreements may be for a
period not exceeding twenty-five years, renewable for not more than
twenty-five years, and under such terms and conditions as may be
provided by law. x x x
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.
its execution. (Emphasis supplied)
Verily, all mineral resources are owned by the State. Their exploration,
development, and utilization must always be subject to the full control and
supervision of the State. 2 While large-scale exploration may be conducted
with the assistance of foreign-owned corporations to augment the country's
capacity, the State must maintain its right of full control over the EDU.
The ponencia correctly holds that the seismic survey under the JMSU
involves an exploration under the 1987 Constitution, in this wise:
Ordinarily, "exploration" means "the activity of searching and
finding out about something." x x x Additionally, under R.A. No. 387
or the Petroleum Act of 1949, "[e]xploration means all work that have
for their object the discovery of petroleum, including, but not
restricted to, surveying and mapping, aerial photography, surface
geology, geophysical investigations, testing of subsurface conditions
by means of borings or structural drillings, and all such auxiliary work
as are useful in connection with such operations." Thus, exploration,
whether used in the ordinary or technical sense pertains to a search
or discovery of something.
Applying the foregoing definitions, We rule that the JMSU
involves the exploration of the country's natural resources,
particularly petroleum. The text of the fifth whereas clause of the
JMSU is clear as to the objective of the agreement:
WHEREAS, the Parties expressed desire to engage
in a joint research of petroleum resource potential
of a certain area of the South China Sea as a pre-
exploration activity[.] (Emphasis supplied)
The JMSU was executed for the purpose of determining if
petroleum exists in the Agreement Area. That the Parties designated
the joint research as a "pre-exploration activity" is of no moment.
Such designation does not detract from the fact that the intent and
aim of the agreement is to discover petroleum which is tantamount to
"exploration." 3
Considering that the JMSU involves exploration of natural resources,
compliance with the requirements under Article XII, Section 2 of the
Constitution is necessary. Undeniably, the JMSU involves an agreement with
foreign-owned corporations, specifically VOGC and CNOOC, for large scale
exploration. In the JMSU's words, the parties will "engage in a joint research
of petroleum resource potential."
A reading of Article XII, Section 2 of the Constitution highlights
the integral role of the President as the one who should enter into
such agreements. In Akbayan Citizens Action Party v. Aquino, 4 the Court
underscored the President's role as the chief architect of the country's
foreign policy. Citing Article VII, Section 28 (2) of the Constitution, the Court
emphasized the general principle that the power to enter into treaties or
international agreements is vested by the Constitution on the President,
subject only to the concurrence of at least two thirds of all members of the
Senate. 5 In Pimentel v. Executive Secretary, 6 the Court expounded thus:
In our system of government, the President, being the head of
state, is regarded as the sole organ and authority in external relations
and is the country's sole representative with foreign nations. As the
chief architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the President
is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic
relations, enter into treaties, and otherwise transact the business of
foreign relations. In the realm of treaty-making, the President has the
sole authority to negotiate with other states. 7
The President's key role finds greater significance in matters relating to
international agreements with foreign-owned corporations as regards the
exploration of marine resources in the country's exclusive economic zone.
Article XII, Section 2 of the Constitution specifically vests upon the
President alone the power to enter into such agreements, viz.:
local scientific and technical resources. (Emphasis supplied)
In Resident Marine Mammals of the Protected Seascape Tañon Stait v.
Reyes 8 (Resident Marine) , the Court held that the President must be the
signatory to the agreement named SC-46, for the joint exploration,
development, and production of petroleum resources in a block covering
approximately 2,850 square kilometers offshore the Tañon Strait. The
agreement was entered into between the DOE and Japan Petroleum
Exploration Co., Ltd. (JAPEX), a foreign-owned corporation. In said case,
however, President Gloria Macapagal-Arroyo did not show any concurrence
to such SC-46 project, rendering the agreement null and void for being
violative of Section 2, Article XII of the Constitution.
There, the Court found no merit in therein respondents' invocation of
t h e alter ego principle to justify the failure of the President to sign the
contract. It explained that "the multifarious executive and administrative
functions of the Chief Executive" may be performed by executive
departments "except in cases where the Chief Executive is required by the
Constitution or law to act in person," 9 as in this case. Finding the service
contract unconstitutional because the President was not a signatory to it, the
Court harped on the rationale behind the requirement thus:
While the requirements in executing service contracts in
paragraph 4, Section 2 of Article XII of the 1987 Constitution seem
like mere formalities, they, in reality, take on a much bigger role. As
we have explained in La Bugal , they are the safeguards put in place
by the framers of the Constitution to "eliminate or minimize the
abuses prevalent during the martial law regime." Thus, they are not
just mere formalities, which will only render a contract unenforceable
but not void, if not complied with. They are requirements placed, not
just in an ordinary statute, but in the fundamental law, the non-
observance of which will nullify the contract. 10
In La Bugal-B'laan Tribal Association, Inc. v. Ramos 11 (La Bugal-B'laan),
the Court made the same pronouncement thus:
Who or what organ of government actually exercises this power
of control on behalf of the State? The Constitution is crystal clear: the
President. Indeed, the Chief Executive is the official constitutionally
mandated to "enter into agreements with foreign owned
corporations." 12
In the present case, the signatory to the JMSU is not the President of
the Philippines but the PNOC, through its President and Chief Executive
Officer. The involvement of the government is only through the permit
issued by the DOE in 2005. Hence, it is clear that the constitutionally
required involvement of the President in the agreement was not complied
with. Consistent with the constitutional requirement, neither the PNOC nor
the DOE is authorized to enter into agreements pertaining to large-scale
exploration of natural resources in the exclusive economic zone. To reiterate,
only the President is given such authority. As stated in Resident Marine and
La Bugal-B'laan, the Constitution requires that the President himself be the
signatory of service agreements with foreign-owned corporations involving
the exploration, development, and utilization of our minerals, petroleum, and
other mineral oils. Otherwise, the said joint exploration, development, and
utilization with foreign-owned corporations is void. For this reason alone, the
JMSU should be held unconstitutional.
Hence, I join the ponencia in granting the petition and in rendering the
JMSU unconstitutional.
LEONEN, J., concurring:
I concur in the ponencia. The Joint Marine Seismic Undertaking (the
Undertaking) was executed in grave violation of Article XII, Section 2 of the
Constitution. While the Undertaking expired in 2008, this issue is of
paramount public interest, presenting an opportunity for this Court to
navigate the limitations of how and what the State can bargain over the
exploration of our natural resources.
The exploration of natural resources, as the ponencia says, is
exclusively reserved for Filipinos, such that any information generated from
this activity within the State's territory cannot be shared with foreign
corporations. Ownership of data collected from exploration activities cannot
be joint with other countries. However, the State may directly explore its
natural resources by contracting foreign corporations under the limited
exception provided under Article XII, Section 2 of the Constitution. In doing
so, the State must retain exclusive control over the exploration activities,
including any information they produce.
While I agree with the ponencia that the Undertaking is
unconstitutional, there is a need to navigate the conceptual framework of
the State's sovereignty and jurisdiction over its national territory and the
extent of other countries' participation in it.
I
Under Article I of the Constitution, the national territory "comprises the
Philippine archipelago, with all the islands and waters embraced therein, and
all other territories over which the Philippines has sovereignty or
jurisdiction[.]" 1
At bottom, sovereignty is "the absolute right to govern" within a
particular territory. 2 On the other hand, jurisdiction is an attribute of
sovereignty that confers, through law, "power and authority to apply the
l a w. " 3 Reagan v. Commissioner of Internal Revenue 4 describes the
sovereign prerogatives of a state within its territory:
Nothing is better settled than that the Philippines being
independent and sovereign, its authority may be exercised over its
entire domain. There is no portion thereof that is beyond its power.
Within its limits, its decrees are supreme, its commands paramount.
Its laws govern therein, and everyone to whom it applies must submit
to its terms. That is the extent of its jurisdiction, both territorial and
personal. Necessarily, likewise, it has to be exclusive. If it were not
thus, there is a diminution of its sovereignty.
It is to be admitted that any state may, by its consent, express
or implied, submit to a restriction of its sovereign rights. There may
thus be a curtailment of what otherwise is a power plenary in
character. That is the concept of sovereignty as auto-limitation,
which, in the succinct language of Jellinek, "is the property of a state-
force due to which it has the exclusive capacity of legal self-
determination and self-restriction." A state then, if it chooses to, may
refrain from the exercise of what otherwise is illimitable competence.
5 (Emphasis supplied, citation omitted)
Inherent in a state's sovereignty is its power to define the limits of its

national territory where it may exercise jurisdiction, as reflected under the
Constitution and relevant national laws. It may also bind itself to
international obligations limiting its jurisdiction through various international
instruments to which a state may be a party.
To define the national territory and the State's powers over the natural
resources found in it, it is relevant to discuss the evolution of the national
territory in the Constitution, relevant national laws, and international law. HEITAD
I (A)
The 1935 Constitution reflects our colonial history. It defines the
national territory as comprising all the territories that Spain ceded to the
United States of America under the Treaty of Paris on December 10, 1989,
and the subsequent treaty in Washington on November 7, 1900, including
the treaty between the United States and Great Britain on January 2, 1930.
The definition includes the phrase "all territory over which the present
Government of the Philippine Islands exercises jurisdiction." 6
The 1973 Constitution amended the definition to remove reference to
the treaties mentioned in the 1935 Constitution. Our national territory was
defined to include all the islands and waters embraced in the Philippine
archipelago and all territories that the Philippines own by historic right or
legal title:
SECTION 1. The national territory comprises the Philippine
archipelago, with all the islands and waters embraced therein, and all
the other territories belonging to the Philippines by historic right or
legal title, including the territorial sea, the air space, the subsoil, the
sea-bed, the insular shelves, and the other submarine areas over
which the Philippines has sovereignty or jurisdiction. The waters
around, between, and connecting the islands of the archipelago,
irrespective of their breadth and dimensions, form part of the internal
waters of the Philippines. 7 (Emphasis supplied)
The 1987 Constitution largely adopted the 1973 definition, but
modified it to remove reference to historic right or legal title and replaced it
with the phrase "all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial
domains[.]" In other words, our national territory is what the State declares it
to be. The provision reads:
The national territory comprises the Philippine archipelago, with
all the islands and waters embraced therein, and all other territories
over which the Philippines has sovereignty or jurisdiction, consisting
of its terrestrial, fluvial, and aerial domains, including its territorial
sea, the seabed, the subsoil, the insular shelves, and other submarine
areas. The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines. 8
All throughout, the national territory was consistently defined as an
archipelagic state. The Concurring Opinion of Justice Presbiterio Velasco, Jr.
i n Magallona v. Ermita 9 detailed how the definition of national territory
evolved:
From the foregoing discussions on the deliberations of the
provisions on national territory, the following conclusion is abundantly
evident: the "Philippine archipelago" of the 1987 Constitution is the
same "Philippine archipelago" referred to in Art. I of the 1973
Constitution which in turn corresponds to the territory defined and
described in Art. 1 of the 1935 Constitution, which pertinently reads:
Section 1. The Philippines comprises all the
territory ceded to the [US] by the Treaty of Paris
concluded between the [US] and Spain on the tenth day
of December, [1898], the limits of which are set forth in
Article III of said treaty, together with all the islands in the
treaty concluded at Washington, between the [US] and
Spain on November [7, 1900] and the treaty concluded
between the [US] and Great Britain. . . .
While the Treaty of Paris is not mentioned in both the 1973 and
1987 Constitutions, its mention, so the nationalistic arguments went,
being "a repulsive reminder of the indignity of our colonial past," it is
at once clear that the Treaty of Paris had been utilized as key
reference point in the definition of the national territory.
On the other hand, the phrase "all other territories over which
the Philippines has sovereignty or jurisdiction," found in the 1987
Constitution, which replaced the deleted phrase "all territories
belonging to the Philippines by historic right or legal title" found in
the 1973 Constitution, covers areas linked to the Philippines with
varying degrees of certainty. Under this category would fall: (a)
Batanes, which then 1971 Convention Delegate Eduardo Quintero,
Chairperson of the Committee on National Territory, described as
belonging to the Philippines in all its history; (b) Sabah, over which a
formal claim had been filed, the so-called Freedom land (a group of
islands known as Spratleys); and (c) any other territory, over which
the Philippines had filed a claim or might acquire in the future
through recognized modes of acquiring territory. As an author puts it,
the deletion of the words "by historic right or legal title" is not to be
interpreted as precluding future claims to areas over which the
Philippines does not actually exercise sovereignty. 10 (Citations
omitted)
The national territory includes "all other territories over which the
Philippines has sovereignty or jurisdiction[.]" These other territories are
defined in several national laws and international law.
I (B)
Republic Act No. 3046 defined the baselines of the Philippine
archipelago in 1961. It also delineated our internal waters, which include all
bodies of water found within the baselines. 11 These waters "are within the
land boundaries of the state or are closely linked to its land domain . . . [and]
have been considered as legally equivalent to the national land." 12 Under
Republic Act No. 3046, the maritime regime of the Philippines comprised its
internal waters and its territorial sea, or "all the waters beyond the
outermost islands of the archipelago but within the limits of the boundaries
set forth in the aforementioned treaties[.]" 13
In 1968, Republic Act No. 5446 amended the archipelagic baselines to
correct the typographical errors. More important, it declared that the
drawing of archipelagic baselines is without prejudice to the country's
sovereignty and dominion over the territory of Sabah in North Borneo. 14
In 1978, Presidential Decree No. 1596 declared the Kalayaan Island
Group in the continental margin of the archipelago as part of the Philippine
territory, 15 based on "history, indispensable need, and effective occupation
and control established in accordance with international law[.]" 16
As for natural resources, Republic Act No. 387 expanded the
Philippines' jurisdiction beyond its territorial waters to its continental shelf. It
declared State ownership of "[a]ll natural deposits or occurrences of
petroleum or natural gas in public and/or private lands in the Philippines":
ARTICLE 3. State ownership. — All natural deposits or
occurrences of petroleum or natural gas in public and/or private lands
in the Philippines, whether found in, on or under the surface of dry
lands, creeks, rivers, lakes, or other submerged lands within the
territorial waters or on the continental shelf, or its analogue in an
archipelago, seaward from the shores of the Philippines which are not
within the territories of other countries, belong to the State,
inalienably and imprescriptibly. 17 (Emphasis supplied)
Thus, in 1968, Proclamation No. 370 declared the Philippines'
jurisdiction and control over all mineral and other natural resources in its
continental shelf. This was to encourage further exploration and exploitation
of new sources of petroleum and other natural resources. 18 The
proclamation reads:
[A]ll the mineral and other natural resources in the seabed and
subsoil of the continental shelf adjacent to the Philippines, but outside
the area of its territorial sea to where the depth of the superjacent
waters admits of the exploitation of such resources, including living
organisms belonging to sedentary species, appertain to the
Philippines and are subject to its exclusive jurisdiction and control for
purposes of exploration and exploitation. In any case where the
continental shelf is shared with an adjacent state, the boundary shall
be determined by the Philippines and that state in accordance with
legal and equitable principles. The character of the waters above
these submarine areas as high seas and that of the airspace above
those waters, is not affected by this proclamation. 19 (Emphasis
supplied)
This proclamation expanded the national territory "over which the
present Government of the Philippine Islands exercises jurisdiction" 20 to
include the continental shelf. Natural resources and other minerals in the
seabed and subsoil of the continental shelf, including sedentary living
organisms, are within the State's "exclusive jurisdiction and control for
purposes of exploration and exploitation." Excluded from the national
territory are the "waters above these submarine areas as high seas and that
of the airspace above those waters[.]" 21
In 1978, Presidential Decree No. 1599 established the exclusive
economic zone of the Philippines, which was described as a "recognized
principle of international law[.]" 22 It provides the rights of the Philippines in
its exclusive economic zone within 200 nautical miles "beyond and from the
baselines from which the territorial sea is measured":
SECTION 2. Without prejudice to the rights of the Republic of
the Philippines over it territorial sea and continental shelf, it shall
have and exercise in the exclusive economic zone established herein
the following[:]
(a) Sovereignty rights for the purpose of exploration and
exploitation, conservation and management of the natural
resources, whether living or non-living, both renewable and
non-renewable, of the sea-bed, including the subsoil and
the superjacent waters, and with regard to other activities
for the economic exploitation and exploration of the
resources of the zone, such as the production of energy
from the water, currents and winds;
(b) Exclusive rights and jurisdiction with respect to the
establishment and utilization of artificial islands, off-shore
terminals, installations and structures, the preservation of
the marine environment, including the prevention and
control of pollution, and scientific research;
(c) Such other rights as are recognized by international law or
state practice. 23 (Emphasis supplied)
While Proclamation No. 370 extended jurisdiction and control to the
continental shelf, Presidential Decree No. 1599 is more expansive: It
declares sovereign rights over the exclusive economic zone, which includes
the seabed, subsoil, superjacent waters, and all the living and non-living
resources found in it. Exploration and exploitation of any resources found in
the country's exclusive economic zone require the State's prior agreement
and authorization:
SECTION 3. Except in accordance with the terms of any
agreement entered into with the Republic of the Philippines or of any
license granted by it or under authority by the Republic of the
Philippines, no person shall, in relation to the exclusive economic
zone:
(a) explore or exploit any resources;
(b) carry out any search, excavation or drilling operations;
(c) conduct any research;
(d) construct, maintain or operate any artificial island, off-
shore terminal, installation or other structure or device; or
(e) perform any act or engage in any activity which is
contrary to, or in derogation of, the sovereign rights and
jurisdiction herein provided.
Nothing herein shall be deemed a prohibition on a citizen of the
Philippines, whether natural or juridical, against the performance of
any of the foregoing acts, if allowed under existing laws. 24
As regards other states, they enjoy freedoms of navigation and
overflight, laying of submarine cables and pipelines, and other
internationally lawful uses of the sea relating to navigation and
communications within the exclusive economic zone. 25
Thus, before the Philippines became a party to the United Nations
Convention on the Law of the Sea (UNCLOS), 26 it has already defined its
national territory and the scope of its rights in its internal and territorial
waters, establishing jurisdiction over its continental shelf and exclusive
economic zone.
I (C)
On December 10, 1982, the Philippines signed the UNCLOS, and ratified
the same on May 8, 1984. 27
Article 309 of the UNCLOS prohibited state parties from making
reservations or exceptions, except when expressly permitted by the other
articles. 28 Thus, the UNCLOS was also referred to as the "Constitution of the
Ocean." 29
The farther the maritime zone is from land, the state's sovereign rights
over it are more limited. This follows the international law principle that
"land is the legal source of the power which a State may exercise over
territorial extensions to seaward," 30 and is the general framework involving
rights and obligations of states within different maritime zones.
The sovereignty of states is recognized within its land territory,
archipelagic waters, and territorial sea, 31 subject to the right of innocent
passage of foreign ships. 32 A state's sovereign rights extend to the "air
space over the archipelagic waters, as well as to their bed and subsoil, and
the resources contained therein." 33
Under the UNCLOS, a state has the following maritime regimes:
territorial sea, 34 contiguous zone, 35 exclusive economic zone, 36 and the
continental shelf. 37 The maritime zones of the Philippines, being an
archipelagic state, proceed from its archipelagic baselines "joining the
outermost points of [its] outermost islands and drying reefs[.]" 38 These
baselines generally conform to the archipelago's configuration. 39
The UNCLOS defines the rights and obligations of states within their
maritime zones. It likewise provides a state's rights in another state's
maritime zones.
Territorial sea
A state's sovereignty over its territorial sea is subject to the right of all
states to their ships' innocent passage, 40 or that which "is not prejudicial to
the peace, good order or security of the coastal State." 41 Submarines are
required to navigate the surface and show their flag. 42 Foreign ships shall
be subjected to the laws and regulations that another state may prescribe
when they pass through that state's territorial sea. 43 They may also be
required to pass through designated sea lanes and traffic separation
schemes. 44 A state may undertake steps to prevent passage that is not
innocent, prevent the entry of ships to its internal waters in breach of the
conditions for admission, or temporarily suspend the right of innocent
passage for security purposes. 45 In certain cases, a state may also exercise
its criminal or civil jurisdiction on foreign ships passing through its territorial
seas. 46

Again, a state's rights become more limited the farther the maritime
zone is from the shore. The areas (i.e., airspace, superjacent waters, among
others) where it may exercise sovereign rights are also reduced.
Contiguous zone
In the contiguous zone, the area 12 nautical miles beyond the
territorial sea, the state may only exercise limited jurisdiction to "prevent
infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea" and "punish infringement of .
. . laws and regulations that is committed in the contiguous zone. 47
Exclusive economic zone
Beyond the contiguous zone, 200 nautical miles from the baseline, lies
the exclusive economic zone. 48 A state retains its sovereign rights over the
exploration, exploitation, conservation, and management of its natural
resources, living or nonliving, that may be found within the seabed, its
subsoil, and the waters superjacent to the seabed. 49 The state also
determines the allowable limits for catching living resources within its
exclusive economic zone. 50 It also has the discretion to allow other states to
harvest what it cannot. 51
Moreover, the state has jurisdiction over artificial islands, installations,
and structures that may be established and used, marine scientific research,
and the protection and preservation of its marine environment. 52 The
provisions on high seas also apply within the exclusive economic zone. 53
Foreign states have the freedoms of "navigation and overflight and of the
laying of submarine cables and pipelines, and other internationally lawful
use of the sea related to these freedoms[.]" 54
Continental shelf
A coastal state's continental shelf includes "the seabed and subsoil of
the submarine areas that extend beyond its territorial sea throughout the
natural prolongation of its land territory to the outer edge of the continental
margin," not exceeding 350 nautical miles from the baselines. 55 Within its
continental shelf, a state has the exclusive rights to explore and exploit its
mineral and nonliving resources found in the seabed and subsoil, including
sedentary living organisms. 56 These rights do not extend to the superjacent
waters and the air space above it. 57
I (D)
Upon signing the UNCLOS in 1982, the Philippines made several
declarations, one of which is the characterization of its archipelagic waters
as internal waters. 58 Due to the objections of several countries, the
Philippines, seemingly withdrawing its previous declaration, stated in 1988
that it "intends to harmonize its domestic legislation with the provisions of
the Convention" and that it "will abide by the provisions of the said
Convention." 59
Thus, in 2009, the Philippines amended its archipelagic baselines
through Republic Act No. 9522. It designated the Kalayaan Island Group and
Bajo de Masinloc as the Regime of Islands, generating maritime zones. 60 In
Magallona, this Court affirmed the constitutionality of Republic Act No. 9522
as the Philippines' compliance with its obligations under the UNCLOS. This
Court explained the compromise and benefits under the new maritime
regimes:
The fact of sovereignty, however, does not preclude the
operation of municipal and international law norms subjecting the
territorial sea or archipelagic waters to necessary, if not marginal,
burdens in the interest of maintaining unimpeded, expeditious
international navigation, consistent with the international law
principle of freedom of navigation. Thus, domestically, the political
branches of the Philippine government, in the competent discharge of
their constitutional powers, may pass legislation designating routes
within the archipelagic waters to regulate innocent and sea lanes
passage. Indeed, bills drawing nautical highways for sea lanes
passage are now pending in Congress.
In the absence of municipal legislation, international law norms,
now codified in UNCLOS III, operate to grant innocent passage rights
over the territorial sea or archipelagic waters, subject to the treaty's
limitations and conditions for their exercise. Significantly, the right of
innocent passage is a customary international law, thus automatically
incorporated in the corpus of Philippine law. No modern State can
validly invoke its sovereignty to absolutely forbid innocent passage
that is exercised in accordance with customary international law
without risking retaliatory measures from the international
community.
The fact that for archipelagic States, their archipelagic waters
are subject to both the right of innocent passage and sea lanes
passage does not place them in lesser footing vis-à-vis continental
coastal States which are subject, in their territorial sea, to the right of
innocent passage and the right of transit passage through
international straits. The imposition of these passage rights through
archipelagic waters under UNCLOS III was a concession by
archipelagic States, in exchange for their right to claim all the waters
landward of their baselines, regardless of their depth or distance from
the coast, as archipelagic waters subject to their territorial
sovereignty. More importantly, the recognition of archipelagic States'
archipelago and the waters enclosed by their baselines as one
cohesive entity prevents the treatment of their islands as separate
islands under UNCLOS III. Separate islands generate their own
maritime zones, placing the waters between islands separated by
more than 24 nautical miles beyond the States' territorial
sovereignty, subjecting these waters to the rights of other States
under UNCLOS III.
Petitioners' invocation of non-executory constitutional
provisions in Article II (Declaration of Principles and State Policies)
must also fail. Our present state of jurisprudence considers the
provisions in Article II as mere legislative guides, which, absent
enabling legislation, "do not embody judicially enforceable
constitutional rights. . . ." Article II provisions serve as guides in
formulating and interpreting implementing legislation, as well as in
interpreting executory provisions of the Constitution. Although Oposa
v. Factoran treated the right to a healthful and balanced ecology
under Section 16 of Article II as an exception, the present petition
lacks factual basis to substantiate the claimed constitutional
violation. The other provisions petitioners cite, relating to the
protection of marine wealth (Article XII, Section 2, paragraph 2) and
subsistence fishermen (Article XIII, Section 7), are not violated by RA
9522.
In fact, the demarcation of the baselines enables the Philippines
to delimit its exclusive economic zone, reserving solely to the
Philippines the exploitation of all living and non-living resources
within such zone. Such a maritime delineation binds the international
community since the delineation is in strict observance of UNCLOS III.
If the maritime delineation is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the
Philippines. UNCLOS III creates a sui genesis maritime space — the
exclusive economic zone — in waters previously part of the high seas.
UNCLOS III grants new rights to coastal States to exclusively exploit
the resources found within this zone up to 200 nautical miles.
UNCLOS III, however, preserves the traditional freedom of navigation
of other States that attached to this zone beyond the territorial sea
before UNCLOS III. 61 (Emphasis supplied, citations omitted)
I (E)
In 2012, President Benigno Aquino III issued Administrative Order No.
29, naming the western portion of our territorial seas as the West Philippine
Sea. 62 It expressly includes the "waters around, within and adjacent to the
Kalayaan Island Group and Bajo De Masinloc, also known as Scarborough
Shoal" as part of the West Philippine Sea. 63
On January 22, 2013, 64 the Philippines initiated arbitration proceedings
before the Permanent Court of Arbitration in the Hague to resolve its dispute
against China as to its source of maritime rights and entitlements in the
West Philippine Sea.
Among others, the Philippines asked the Permanent Court of
Arbitration to rule on China's claim of historical rights and entitlements in the
West Philippine Sea vis-à-vis UNCLOS provisions. It also asked the court to
rule on the maritime zones and entitlements of the disputed Scarborough
Shoal and Spratly Islands, which are both claimed by parties and nonparties
to the case. It also sought a ruling on the legality of China's actions within
the Philippines' exclusive economic zone. 65
The Permanent Court of Arbitration did not give credence to China's
historic rights under the nine-dash line because it exceeds the UNCLOS limits
of maritime zones of states. 66 It held that upon acceding to the UNCLOS,
China superseded its other claims as a matter of law and as a matter of
international commitment to resolve its incompatible claims within the
UNCLOS framework. 67 As for China's claim of having enforced its historic
rights to the living and nonliving resources within the nine-dash line, the
court found no evidence that China restricted exploiting these resources, to
the exclusion and acquiescence of other states. 68 Notably, it qualified that
China, upon being a party to the UNCLOS, relinquished not its claim of
historic rights, but the freedoms it enjoyed in the high seas, which the
UNCLOS states to be part of the exclusive economic zone of other states. 69
As for the Philippines' rights within its exclusive economic zone, the
Permanent Court of Arbitration held:
698. The Convention is clear on the allocation of rights within the
exclusive economic zone and continental shelf. With respect to
non-living resources, Article 77 of the Convention provides that
the "coastal State" — which in this case is necessarily the
Philippines — "exercises over the continental shelf sovereign
rights for the purpose of exploring it and exploiting its natural
resources." The Convention goes on to make clear that "[t]he
rights referred to . . . are exclusive in the sense that if the coastal
State does not explore the continental shelf or exploit its natural
resources, no one may undertake these activities without the
express consent of the coastal State." These provisions are
unequivocal and require no further interpretation. Within its
continental shelf, only the Philippines, or another State acting
with its permission, may exploit the resources of the sea-bed. aDSIHc
xxx xxx xxx

700. The same clarity is evident with respect to living resources
and the provisions of the exclusive economic zone. Article 56 is
clear in allocating to the coastal State — which again is
necessarily the Philippines in the areas in question — "sovereign
rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of
the waters superjacent to the seabed and of the seabed and its
subsoil, and with regard to other activities for the economic
exploitation and exploration of the zone. . . . " The rights of other
States in the exclusive economic zone are detailed in Article 58
and are limited to "navigation and overflight and of the laying of
submarine cables and pipelines, and other internationally lawful
uses of the sea related to these freedoms." The rights of other
States do not include restricting a coastal State from exploiting
the living resources of its own exclusive economic zone. Indeed,
the very notion is incompatible with the concept of sovereign
rights and the exclusive jurisdiction over fisheries that was the
central objective motivating the introduction of the exclusive
economic zone concept. 70 (Emphasis supplied, citations
omitted)
The Permanent Court of Arbitration held that only the Philippines has
sovereign rights over its exclusive economic zone and continental shelf.
China has no overlapping maritime zones with the Philippines, and thus, no
overlapping entitlements. 71 China breached its obligations under the
UNCLOS when it disregarded the Philippines' sovereign rights over its
exclusive economic zone and continental shelf:
B. In relation to the merits of the Parties' disputes, the Tribunal:
xxx xxx xxx
(8) DECLARES that China has, through the operation of its marine
surveillance vessels in relation to M/V Veritas Voyager on 1 and 2
March 2011 breached its obligations under Article 77 of the
Convention with respect to the Philippines' sovereign rights over
the non-living resources of its continental shelf in the area of
Reed Bank;
(9) DECLARES that China has, by promulgating its 2012
moratorium on fishing in the South China Sea, without exception
for areas of the South China Sea falling within the exclusive
economic zone of the Philippines and without limiting the
moratorium to Chinese flagged vessels, breached its obligations
under Article 56 of the Convention with respect to the Philippines'
sovereign rights over the living resources of its exclusive
economic zone;
(10) FINDS, with respect to fishing by Chinese vessels at Mischief
Reef and Second Thomas Shoal:
a. that, in May 2013, fishermen from Chinese flagged
vessels engaged in fishing within the Philippines'
exclusive economic zone at Mischief Reef and Second
Thomas Shoal; and
b. that China, through the operation of its marine
surveillance vessels, was aware of, tolerated, and failed
to exercise due diligence to prevent such fishing by
Chinese flagged vessels; and
c. that therefore China has failed to exhibit due regard
for the Philippines' sovereign rights with respect to
fisheries in its exclusive economic zone; and
DECLARES that China has breached its obligations under Article
58(3) of the Convention;
(11) FINDS that Scarborough Shoal has been a traditional fishing
ground for fishermen of many nationalities and DECLARES that
China has, through the operation of its official vessels at
Scarborough Shoal from May 2012 onwards, unlawfully
prevented fishermen from the Philippines from engaging in
traditional fishing at Scarborough Shoal;
(12) FINDS, with respect to the protection and preservation of the
marine environment in the South China Sea:
a. that fishermen from Chinese flagged vessels have
engaged in the harvesting of endangered species on a
significant scale;
b. that fishermen from Chinese flagged vessels have
engaged in the harvesting of giant clams in a manner
that is severely destructive of the coral reef ecosystem;
and
c. that China was aware of, tolerated, protected, and
failed to prevent the aforementioned harmful activities;
and
DECLARES that China has breached its obligations under Articles
192 and 194(5) of the Convention;
(13) FINDS further, with respect to the protection and preservation
of the marine environment in the South China Sea:
a. that China's land reclamation and construction of
artificial islands, installations, and structures at Cuarteron
Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef,
Hughes Reef, Subi Reef, and Mischief Reef has caused
severe, irreparable harm to the coral reef ecosystem;
b. that China has not cooperated or coordinated with
the other States bordering the South China Sea
concerning the protection and preservation of the marine
environment concerning such activities; and
c. that China has failed to communicate an
assessment of the potential effects of such activities on
the marine environment, within the meaning of Article
206 of the Convention; and
DECLARES that China has breached its obligations under Articles
123, 192, 194(1), 194(5), 197, and 206 of the Convention;
(14) With respect to China's construction of artificial islands,
installations, and structures at Mischief Reef:
a. FINDS that China has engaged in the construction of
artificial islands, installations, and structures at Mischief
Reef without the authorisation of the Philippines;
xxx xxx xxx
c. DECLARES that China has breached Articles 60 and 80 of
the Convention with respect to the Philippines' sovereign
rights in its exclusive economic zone and continental shelf;
(15) FINDS, with respect to the operation of Chinese law
enforcement vessels in the vicinity of Scarborough Shoal:
a. that China's operation of its law enforcement vessels on 28
April 2012 and 26 May 2012 created serious risk of collision
and danger to Philippine ships and personnel; and
b. that China's operation of its law enforcement vessels on 28
April 2012 and 26 May 2012 violated Rules 2, 6, 7, 8, 15,
and 16 of the Convention on the International Regulations
for Preventing Collisions at Sea, 1972; and
DECLARES that China has breached its obligations under Article
94 of the Convention; and
(16) FINDS that, during the time in which these dispute resolution
proceedings were ongoing, China:
a. has built a large artificial island on Mischief Reef, a low-tide
elevation located in the exclusive economic zone of the
Philippines;
b. has caused — through its land reclamation and
construction of artificial islands, installations, and
structures — severe, irreparable harm to the coral reef
ecosystem at Mischief Reef, Cuarteron Reef, Fiery Cross
Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and
Subi Reef; and
c. has permanently destroyed — through its land reclamation
and construction of artificial islands, installations, and
structures — evidence of the natural condition of Mischief
Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef
(North), Johnson Reef, Hughes Reef, and Subi Reef; and
FINDS further that China:
d. has aggravated the Parties' dispute concerning their
respective rights and entitlements in the area of Mischief
Reef,
e. has aggravated the Parties' dispute concerning the
protection preservation of the marine environment at
Mischief Reef;
f. has extended the scope of the Parties' dispute concerning
the protection and preservation of the marine environment
to Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North),
Johnson Reef, Hughes Reef, and Subi Reef; and
g. has aggravated the Parties' dispute concerning the status
of maritime features in the Spratly Islands and their
capacity to generate entitlements to maritime zones; and
DECLARES that China has breached its obligations pursuant to
Articles 279, 296, and 300 of the Convention, as well as pursuant
to general international law, to abstain from any measure
capable of exercising a prejudicial effect in regard to the
execution of the decisions to be given and in general, not to
allow any step of any kind to be taken which might aggravate or
extend the dispute during such time as dispute resolution
proceedings were ongoing. 72
The foregoing shows that both at the national and international levels,
the Philippines established its jurisdiction and sovereign rights over its
exclusive economic zone and continental shelf. It prevailed before the
Permanent Court of Arbitration in defending its sovereign rights against
China's blatant disregard of these rights. This shows that the State has been
actively exercising its sovereignty over its national territory.
I take exception to the ponencia's caution in refusing to call the
agreement area as within the West Philippine Sea due to the lack of official
map made publicly available, following its confidentiality clause. 73 While the
metes and bounds of the agreement area are uncertain, the ponencia noted
that the agreement area is within our exclusive economic zone, and that it
covers 80% of the Spratly Islands. 74 It is a matter of judicial notice that the
Spratly Islands include the Kalayaan Island Group and Scarborough Shoal,
which form part of our territory.
This is sufficient basis to refer to the West Philippine Sea in relation to
the agreement area. Since the agreement area is highly contested by
several states, the simplest exercise of ownership that we should do is to
refer to our maritime areas using the name designated by the Republic. More
so here, where the controversy is the State's ownership and prerogatives
over its natural resources found within its national territory.
II
The 1987 Constitution incorporates "generally accepted principles of
international law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation, and amity with all nations." 75
The community of nations governed by international law is built on consent
of sovereign states. 76 The principles of reciprocity, comity, independence,
and equality of states are the foundations of international law. 77
International peace and order are achieved through recognition and
deference to the equality and sovereignty of states, This means that a "state
is not subject to a legal order superior to its own legal order, i.e., the national
law." 78 The paramount law of a state is found in its constitution:
A constitution is a system of fundamental laws for the governance
and administration of a nation. It is supreme, imperious, absolute and
unalterable except by the authority from which it emanates. It has
been defined as the fundamental and paramount law of the nation. It
prescribes the permanent framework of a system of government,
assigns to the different departments their respective powers and
duties, and establishes certain fixed principles on which government
is founded. The fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in accordance
with which all private rights must be determined and all public
authority administered. Under the doctrine of constitutional
supremacy, if a law or contract violates any norm of the constitution
that law or contract whether promulgated by the legislative or by the
executive branch or entered into by private persons for private
purposes is null and void and without any force and effect. Thus,
since the Constitution is the fundamental, paramount and supreme
law of the nation, it is deemed written in every statute and contract.
79 (Emphasis supplied)
Thus, international law also recognizes the constitutional prerogatives

of a sovereign state, in the same manner that its principles are considered
part of the law of the land. Inherent in a state's sovereignty are its all —
encompassing powers and prerogatives over its national territory, including
the use, enjoyment, and development of its natural resources.
Our Constitution provides the State's ownership of all natural
resources, 80 with the exception of those within ancestral domains. 81 This
ownership is based on public trust, where the State holds the natural
resources for the benefit of the Filipino people. 82 In my concurring opinion in
Maynilad Water Services, Inc. v. Secretary of the Department of Environment
and Natural Resources , 83 I observed that the public trust doctrine in our
natural resources is incorporated in several constitutional provisions as a
necessary consequence of a republican democracy. Thus, in any dealing
involving the State's natural patrimony, the primary consideration is the
good of the community and the public interest it serves:
The constitutional provisions on national economy and
patrimony, as found in Article XII of the 1987 Constitution,
emphasizes that the State's power is always subject to the common
good, public welfare, and public interest or benefit. Many of its
provisions put primacy in favor of the State's citizens:
xxx xxx xxx
These constitutional provisions on the State's national
patrimony and economy, on which the public trust doctrine is
anchored, highlight that the common good, public interest, public
welfare — the people — are of primary consideration.
In addition, the public trust doctrine is founded on both social
justice and equity.
The people, as a community, depend and rely on their ecology.
They will not exist without it. This ecology cannot have unlimited
resources, especially in the face of climate and environmental
changes, as well as unrestrained policies in connection with the
exploitation of resources. The public trust doctrine recognizes these
limitations and expands the concept of property, giving it a more
equitable, just, and reasonable interpretation. Land and water are not
simply owned and disposed of at will by the State. They are part of a
community and an ecosystem, interdependent with each other. 84
(Emphasis supplied, citation omitted)
Corollary to this doctrine of public trust in natural resources, the
Constitution has nationalized and reserved certain areas in the economy
exclusively for Filipino citizens. This is to give effect to the State policy of
developing "a self-reliant and independent national economy effectively
controlled by Filipinos." 85
Thus, the Constitution reserved the "nation's marine wealth in its
archipelagic waters, territorial sea, and exclusive economic zone" for the
exclusive use and enjoyment of Filipino citizens. 86 This includes the
exploration and development of the marine wealth in the State's territory. 87
The State's ownership of natural resources as a public trust, together
with nationalizing participation in it, furthers the broad goals of the national
economy. The Constitution directs the State to run the economy to enable "a
more equitable distribution of opportunities, income, and wealth" to raise the
quality and standards of living for all, most especially the poor, marginalized,
and oppressed. 88 Among the goals of the economy, "equity is given
prominence as the first objective of national economic development." 89
While the State promotes competitive Filipino enterprises in domestic
and foreign markets, it did not use corporations or associations in the
mandatory reservation of the country's marine wealth. Instead, the
Constitution deliberately referred to "Filipino citizens" as the ones who have
the exclusive use and enjoyment of the nation's marine wealth. This means
that natural persons are the ultimate beneficiaries of the public trust, not
juridical persons. Regardless of the nationality of corporations, the ultimate
beneficiary of the nation's patrimony should be the Filipino people.
In Miners Association of the Philippines v. Factoran: 90
The economic policy on the exploration, development and

utilization of the country's natural resources under Article XII, Section
1 of the 1987 Constitution could not be any clearer. As enunciated in
Article XII, Section 2 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 1934
Constitutional Convention. In connection therewith, the 1986 U.P.
Constitution Project observed.: "The 1934 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
posterity. This will ensure the country's survival as a viable sovereign
republic." 91 (Emphasis supplied, citations omitted)
As the owner of the natural resources, the State has the power and
primary responsibility in its exploration, development, and utilization. 92
Giving effect to the policies of national economy and patrimony, the 1987
Constitution has given the State a more dynamic role in managing its natural
resources 93 by retaining the State's full control and supervision of the
activities under Article XII, Section 2, which reads:
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. ATICcS

its execution.
This provision outlines the different methods through which natural
resources can be explored, developed, and used, namely: (1) the State
directly; (2) the State in collaboration with Filipino citizens, or corporations or
associations with capital that is at least 60% Filipino-owned; (3) Filipino
citizens through small-scale use of natural resources, as allowed by law; or
(4) agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development, and use of
natural resources. In any of these modes, the State must maintain full
control and supervision over any kind of participation in its natural
resources. 94 Its agreements over its natural resources cannot be purely
private endeavors. 95
III
Notwithstanding these economic policies, the reality is that ordinary
people, especially municipal fisherfolk, have little to no resources to research
on and explore the area. If at all, their catch is sufficient only for their
families' sustenance. They lack technical knowledge and financial resources
to explore the country's marine wealth.
Addressing these limitations, the Constitution allowed the fourth mode
as discussed earlier: foreign participation in the form of "technical or
financial assistance for large-scale exploration, development, and utilization
of minerals, petroleum, and other mineral oils." 96
For pragmatic reasons, therefore, foreigners are not prohibited from
participating in the country's national patrimony. Their participation is a
limited exception to the reservation of the exploration, development, and
utilization of natural resources to Filipino citizens and qualified corporations.
97 In entering into an agreement, they must strictly comply with the
requirements of Article XII, Section 2 as to the authority, scope, terms and
conditions, source, effect, and notice requirements of the agreement. These
requirements are not formalities but are essential conditions for the
contract's validity. 98
Specifically, only the president can be the signing authority of foreign
agreements; this cannot be delegated to other members of the executive
branch. The scale of the project must be sufficiently large as to significantly
contribute to the economic growth and general welfare of the country, since
small-scale exploration, development, and use of natural resources are
reserved for Filipino citizens. Local scientific and technical resources should
also be availed to ensure transfer of technology and capacity. The terms and
conditions of the agreement must comply with the law, in this case,
Petroleum Act of 1949. 99 Moreover, every foreign contract must be reported
to Congress within 30 days from its execution. 100
As the ponencia noted, none of the safeguards were complied with.
Instead of the president, respondent Philippine National Oil Company signed
the Undertaking for the Republic. I agree that the president is the only
authorized signatory under the fourth mode of exploration, development,
and use, and their authority cannot be delegated to another government
agency or instrumentality. 101 This is fatal to the validity of the Undertaking.
Moreover, I agree with the ponencia that information on exploration
activities is exclusively reserved to Filipinos; its ownership cannot be jointly
held with foreign corporations. 102 The petroleum exploration activities in the
Undertaking do not fall under any of the four modes under Article XII,
Section 2 of the Constitution. The Undertaking allowed foreign ownership
over information gathered from the exploration activities in our exclusive
economic zone. In executing the Undertaking, the ponencia notes, the
Philippine National Oil Company illegally bargained away the State's full
control and supervision over exploration activities within the country's
exclusive economic zone. 103
The Republic cannot agree to a joint ownership of any information
derived from exploration activities within its territory. National and
international laws recognize the Philippines' sovereign rights "of exploring
and exploiting, conserving and managing the natural resources, whether
living or non-living, of the waters superjacent to the seabed and of the
seabed and its subsoil" within its exclusive economic zone. 104 Our sovereign
rights do not only extend to the natural resources found there, but also to
the information as to its existence. The reason is simple. The use and
enjoyment of natural resources may only be possible if resources are found
to exist in a particular area. Discovery of natural resources is the ultimate
purpose of all exploration activities, which may eventually lead to the
development and use of the natural resources found there.
Any information from exploration activities is just as crucial as the
actual resources discovered in a specific area. Access to information shapes
economic and ecological policies affecting the lives of the people. It gives a
state confidence to invest in developing certain areas known to be resource-
rich and maximizing their use for high results. With access to correct and
reliable information, the state stands at an improved bargaining position
with foreign entities that want to enter into large-scale technical or financial
assistance agreements for the exploration, development, and use of the
state's natural resources. Information is crucial in national security and
defense. A state cannot be careless in exposing the vulnerabilities of its
territory for economic gain.
The provisions of the Constitution are not mere ideals and aspirations.
These are rooted from the people's long colonial history and their rejection of
foreign ownership and control over their lands and natural resources. 105 To
remove all doubts, the policy that all natural resources are reserved for
Filipino citizens has been written into the Constitution. 106 Until the people
renounce their beneficial ownership over their natural resources, the State
must fulfill its duty to conserve and preserve its national patrimony. 107
Thus, any information from exploration activities conducted within our
exclusive economic zone belongs to the Republic and is reserved for Filipino
citizens. The State cannot bargain its ownership away without violating the
Constitution.
Accordingly, I vote to GRANT the Petition and declare the Joint Marine
Seismic Undertaking as VOID and UNCONSTITUTIONAL.
LAZARO-JAVIER, J., dissent:
Antecedents
On March 14, 2005, the Philippine National Oil Company (PNOC)
executed the Tripartite Agreement for Joint Marine Seismic Undertaking
(JMSU) in the Agreement Area in the South China Sea with China National
Offshore Oil Corporation (CNOOC) and Vietnam Oil and Gas Corporation
(PETROVIETNAM).
PNOC is the national oil company of the Republic of the Philippines.
CNOOC is the state-owned oil company of the People's Republic of China.
PETROVIETNAM is the state-owned oil company of the Socialist Republic of
Vietnam.
The JMSU recognized that the sovereign states were the true parties in
interest when it required the approval of the named parties' respective
governments before it could even be effective and binding. Thus, according
to the ponencia, citing the petition and its reference to Article 11.6 of the
JMSU:
Nevertheless, the last clause of the JMSU states that it shall not
be binding on the Parties should any party fail to obtain its
government's approval within three months after the date on which it
is signed. The latest date of the approvals shall be the effective date
of the JMSU, while the date of the commencement of its
implementation shall be the first day of the month following its
effectivity.
To borrow the words of the ponencia, the JMSU was all about:
The JMSU has a term of three years starting from the date of
commencement of its implementation (Agreement Term). According
to its fourth whereas clause, its execution is an expression of the
Parties' commitment "to pursue efforts to transform the South China
Sea into an area of peace, stability, cooperation, and development."
Consequently, the Parties desire "to engage in a joint research of
petroleum resource potential of a certain area of the South China Sea
as a pre-exploration activity." The JMSU shall cover 142,886 square
kilometers of the Agreement Area, defined, and marked out by the
geographic location and coordinates of the connecting points of the
boundary lines in the Annex attached to the agreement. Article 4(1)
of the JMSU authorizes the conduct by the Parties of "seismic work" in
the Agreement Area, viz.:
4.1. It is agreed that certain amount of 2D
and/or 3D seismic lines shall be collected and processed
and certain amount of existing 2D seismic lines shall be
reprocessed within the Agreement Term. The seismic
work shall be conducted in accordance with the seismic
program unanimously approved by the Parties taking into
account the safety and protection of the environment in
the Agreement Area.
For the proper performance of the joint activity, the Parties shall
establish a Joint Operating Committee (JOC) as soon as possible after
the JMSU is signed. The Parties shall each appoint three
representatives to the JOC. The JOC's powers, among others, include
the formulation of a Joint Operating Procedure (JOP) for the conduct of
the joint activity. As a rule, the Parties agreed to have effective and
equal participation in all activities relevant to the implementation of
the JMSU. . . .
The ultimate results of the JMSU were "documents, information,
data, and reports with respect to the joint marine seismic undertaking."
As to these outcomes, the parties were bound by a confidential agreement
which provided that outcomes would not be disclosed by any of them to any
other party absent of their unanimous written consent.
The JMSU itself contained a confidentiality clause that prevented its
disclosure. Hence, the ponencia could only surmise, as explained by the
prefatory use of the word "allegedly" in the following narration:
Allegedly, on June 5, 2005, then Department of Energy (DOE)
Secretary Raphael P.M. Lotilla issued a six-month term permit (first
permit) to the PNOC Exploration Corporation (PNOC-EC), the assignee
of the PNOC under Article 9.1 of the JMSU. This permit constituted the
Philippine Government's approval of the JMSU. On July 1, 2005, the
JMSU commenced to be implemented for the Agreement Term or until
July 1, 2008. On December 10, 2005, the first permit expired. On
October 4, 2007, the DOE allegedly issued another permit for a six-
month teen (second permit).
There is no certified copy of the JMSU on record. Hence, it is also
admitted that the location of the JMSU activities has not been
established with certainty. The ponencia proceeded though:
Before proceeding to the substance of the case, We clarify that
the JMSU covers the portion of the South China Sea claimed
by the Philippines, China, and Vietnam. The ninth whereas
clause of the agreement declared that its signing will not undermine
the basic positions held by the Government of each Party on the
South China Sea issue. However, petitioners alleged that the
Agreement Area is within the EEZ of the Philippines and includes
almost 80% of the Spratly Group of Islands. This is not disputed by
respondents. On September 5, 2012, then President Benigno C.
Aquino III issued Administrative Order (AO) No. 29 titled, "Naming the
West Philippine Sea of the Republic of the Philippines, and for Other
Purposes." The AO stated that the maritime areas on the western side
of the Philippine archipelago shall be named as the West Philippine
Sea, which shall include the Luzon sea as well as the waters around,
within and adjacent to the Kalayaan Island Group and Bajo De
Masinloc, also known as the Scarborough Shoal. ETHIDa
Notwithstanding AO No. 29, We shall not refer to the

Agreement Area as the West Philippine Sea. As admitted by
petitioners, no official copy of the map covering the JMSU had
been released to the public owing to the confidentiality
clause in the agreement. The maps attached to the petition were
from (1) an online news article, and (2) made by Prof. Giovanni
Tapang, Ph.D. of the National Institute of Physics, University of the
Philippines Diliman based on the coordinates stated on the copy of
the map from the said article. As such, We cannot assume that
the Agreement Area is included in the West Philippine Sea.
We are only certain that based on the attached maps and the
non-rebutted claim of petitioners, the Agreement Area is
within the Philippines' EEZ. Therefore, whatever natural resources
found therein are owned by the Republic.
For sure, we cannot assume facts not in evidence. We cannot assist
petitioners' case to meet. The Court after all is an impartial arbiter. There are
unanswered questions of fact that in turn depended upon answers to
prejudicial questions of law. What we have is an incomplete case record
to which we cannot supply the facts to be able to come out with a
judgment.
In any event, on June 30, 2008, as everyone admits, the JMSU
expired.
My Dissent
1. Doctrine of Hierarchy of Courts
But this is the natural outcome when we constantly push
institutions to bend to politics. We care only about results.
We dismiss underlying legal principles as technicalities, as
malleable and negotiable, at least for our side. . . . But law
must mean what it says, not be perpetually open to
loopholes. It must be stable and predictable, or it cannot
serve its purpose. . . . Are we willing to be loyal to law itself
above the political fray, to rebuke legal vigilantism using
outlandish cases, even the ones that suit us? If not, Sisyphus'
lament is that we cannot protest how laws are never
followed. Law ultimately draws strength not from intellect,
but from society's conviction. 1
As in Sisyphus' lament, my first issue with the ponencia is
fundamental. Petitioners bear the burden of proving facts. This Court
does not unearth the facts for them. Much less should we supply the facts
to give substance to their petition. We cannot overcome the weaknesses
of our legal system unless we learn to abide by the rules that are there in
the first place to govern us.
Here, there are unmistakable questions of fact. This is the situation
because respondents invoke the confidentiality of the entirety of the JMSU.
Right or wrong, this invocation does not relieve petitioners of their burden
to challenge this claim of privilege by invoking discovery and the
subpoena power of our courts. Only then, when petitioners have hurdled
the claim of privilege, they can have their true copy of the JMSU, with all
i t s verified contents (both text and annexes) and circumstances of
execution if at all, and for the Court, the facts at its doorstep, to be able to
resolve the transcendental issues of the day.
But as it is, we do not have the facts — the JMSU itself and its
circumstances. Because petitioners chose to go directly to this Court.
Where could they have gone? The obvious answer is the court where
subpoenas are applied for — the trial courts. Of course, we may also
deign to issue the subpoenas, but must we?
We are not triers of facts. If we give petitioners this benefit today,
should we not also accord the same preferential attention to others? The
Court's lifeline is built on precedents. This is a rule both of procedure and
substance. We follow precedents because it provides stability and
equality to all. That is why, this Court and the other courts should not
simply cave in to claims for exceptions.
We must also not decide cases on the basis of online news articles
a n d hearsay (i.e., out-of-court, unauthenticated) statements that favor
only petitioners. Unfortunately, the ponencia hinged its facts on them
too.
The doctrine of hierarchy of courts exists precisely to filter those
cases that must first pass the trial courts where the evidentiary record
and findings are completed. This is because:
. . . direct recourse to this Court is allowed only to resolve
questions of law, notwithstanding the invocation of paramount or
transcendental importance of the action. This doctrine is not mere
policy, rather, it is a constitutional filtering mechanism designed to
enable the Court to focus on the more fundamental and essential
tasks assigned to it by the highest law of the land. 2
We cannot supply the facts, and worse, without evidence. This
procedure goes against the fabric of the Court's constitution as an
impartial tribunal. We cannot accept as facts if allegedly they merely
appear to be the facts. We cannot accept allegations as facts as a result of
respondents' silence, even if their silence is due to their claim of
privilege.
2. Mootness
The JMSU had expired on June 30, 2008. The text of this agreement
is gone. There are no lingering circumstances that bother anyone of us.
Truly, we do not even know if the JMSU was ever implemented at all. It is
unknown if our country, the Socialist Republic of Vietnam, and the People's
Republic of China, or their respective factotums, would ever enter into and
execute another JMSU in the future.
Clearly, these circumstances disqualify this case from the exceptions
to the doctrine of mootness:
At present, courts will decide cases, otherwise moot and
academic, if it feels that: (a) there is a grave violation of the
Constitution; (b) the situation is of exceptional character and
paramount public interest is involved; (c) the constitutional issue
raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and (d) the case is capable of
repetition yet evading review. 3
For us to conclude that there is a grave violation of the
Constitution, there must be prima facie evidence of the existence of this
grave violation, the nature of this grave violation, the continuing state of
this grave violation, and the nexus between the assailed official act and the
grave violation. Unfortunately, for the reasons already mentioned, the Court
does not have a true copy of the JMSU and its places of execution, and
does not know the circumstances of its implementation. With the
JMSU's expiration, is the Constitution still being violated? Obviously, we
cannot conclude that it is because there are no facts to base this
conclusion on.
Neither can we say that "the situation is of exceptional character and
paramount public interest is involved." To be sure, it is the JMSU's
exceptional character as a result of what it allegedly represents that
should compel this Court simply to dismiss this case. If we are to believe as
facts the narration in the ponencia, this is because the JMSU is meant to be:
. . . an expression of the Parties' commitment "to pursue efforts to
transform the South China Sea into an area of peace, stability,
cooperation, and development." Consequently, the Parties' desire
"to engage in a joint research of petroleum resource potential of a
certain area of the South China Sea as a pre-exploration activity."
The mootness doctrine allows the Court to by-pass the very difficult
route of deciding this case that would definitely impact adversely upon
the country's foreign relations posturing. By leaving the constitutional
issue undecided, again assuming the ponencia's narration represents the
facts, we give our public officers that flexibility and ability to deal with our
country's foreign relations in accordance with our paramount public
interests as they unfold and without embarrassing them with the blot
that what they did was unconstitutional. In other words, there is valor in
prudence at this time when it is not even necessary to paint ourselves to
a corner.
T h e third exception — the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the
public — does not apply. We are not required as of now to formulate any
controlling principles for two reasons: (i) the facts have not been
established as all we have are speculations based on an online article, a
hearsay statement, and the admission by silence though due to a claim of
privilege; and (ii) respondents are content with the present state of the law
and there is no clamor for such controlling principles. If at all, the clamor is
for respectful and dignified unity and peace with other countries, which
the Court is simply not competent to achieve.
The capable of repetition yet evading review exception has two
elements: (1) the duration of the challenged action must be too short to be
fully litigated prior to its cessation or expiration; and (2) there must be
reasonable expectation that the same complaining party will be subjected
to the same action again.
It is admitted that the JMSU was short-lived — a fact that clearly
calls for restraint and prudence on our part. Still, petitioners have not
shown that respondents have in the pipeline another JMSU to be entered
into and implemented. All that the ponencia refers to is the potential or
possibility of another JMSU coming into existence. The standard is not
potential or possibility. Everything is a potential or a possibility in life.
This is an unworkable standard. Rather, the burden is to show a
reasonable expectation. Reason requires a basis. We cannot simply
speculate that another JMSU is coming. Petitioners have to show facts and
circumstances, not merely allege them.
Overall, petitioner cannot literally repeat the wordings of the
exceptions without explaining how each of them is present. It cannot
merely ask the Court to accept what in the first place should be
proved; especially for a case of unforeseeable consequences both here
and abroad, and not just abroad but to our ticklish relations with rivals
where armed conflict is a factor.
3. Lis mota
With the foregoing exigent bases for resolving the present case, the
constitutional issue posed by petitioners sorely lacks the requisite peg of
lis mota to stand on.
In Estrada v. Desierto, 4 We explained that:
Basic is the principle that a constitutional issue may only be
passed upon if essential to the decision of a case or controversy.
Even if all the requisites for judicial review are present, this Court will
not entertain a constitutional question unless it is the very lis mota of
the case or if the case can be disposed of on some other
grounds, such as the application of a statute or general law. Thus, in
Sotto v. Commission on Elections, we held —
. . . It is a well-established rule that a court should not pass upon a
constitutional question and decide a law to be unconstitutional or
invalid, unless such question is raised by the parties, and that when it
is raised, if the record also presents some other ground upon
which the court may rest its judgment, that course will be
adopted and the constitutional question will be left for
consideration until a case arises in which a decision upon such
question will be unavoidable. (Emphasis supplied.)
In herein case, the question of who has jurisdiction to entertain
petitions for certiorari questioning the Ombudsman's orders or
resolutions in criminal cases can be answered by resorting to the
aforecited cases of Kuizon v. Ombudsman , Mendoza-Arce v. Office of
the Ombudsman and Perez v. Office of the Ombudsman .
Consequently, there is no need to delve into the
constitutionality of Section 14 of Rep. Act No. 6770 as case law
already supplies the key. (Emphasis supplied.)
The clear and impeccable grounds to decide this case are hierarchy of
courts and mootness. The case can be resolved on these grounds.
Therefore, the constitutionality of the JMSU is not triggered.
4. Characterization of the instant
case as a predominantly foreign
relations matter rather than an
issue of exploration, development,
and utilization of natural resources
Nonetheless, if we have to decide this case on the merits, with due
respect, I still cannot subscribe to the ponencia.
I preface this discussion with the assumption that the narration in
ponencia states the correct facts of this case.
With this, I respectfully disagree with the ponencia's characterization
of the instant case as one falling solely under Section 2, Article XII of the
Constitution on the exploration, development, and utilization of the
country's natural resources. Rather, to me, the issue is predominantly a
foreign relations matter that requires deference to the reasonable
actions of respondents. Consequently, our definition of the word
exploration must be sensitive to the foreign relations element of the
JMSU.
Section 2, Article XII of the Constitution states:
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. (Emphasis supplied.)
its execution.
One. The JMSU is not primarily for the purpose of inviting other
countries to partake of the country's natural resources. Instead, the
primordial purpose is to trail-blaze efforts at establishing a code of
conduct among claimant-countries to resolve amicably conflicting
territorial claims over disputed territories. This is clear from the alleged
clauses of the JMSU, which to quote again are:
. . . an expression of the Parties' commitment "to pursue
efforts to transform the South China Sea into an area of peace,
stability, cooperation, and development." Consequently, the
Parties desire "to engage in a joint research of petroleum resource
potential of a certain area of the South China Sea as a pre-
exploration activity."
As a foreign relations instrument, rather than just being an
exploration-development-utilization agreement, the JMSU must be
interpreted in relation to our Constitution in the most deferential light to
the true decision-makers' conceptualization of what it is. To reiterate the
doctrine in how courts should deal with foreign relations' matters:
In Vinuya v. Romulo , we stated that "the question whether the
Philippine government should espouse claims of its nationals against
a foreign government is a foreign relations matter, the authority for
which is demonstrably committed by our Constitution not to the
courts but to the political branches." 5
Although the citation has to do with the matter of according diplomatic
immunity, the reasoning therein is with more reason applicable to the
present case where the very fabric of the country's national security, not
simply embarrassment to the world-at-large as in the diplomatic
immunity cases, is at stake. How we deal with real troublesome neighbor-
sovereigns should be a matter left deferentially to the resolution of our
foreign affairs officials. The Court must not double dip in these matters
in doubtful cases because we risk adverse outcomes to both our national
security and international standing.
Thus, our courts have limited power under the Constitution to require
the executive branch to do anything in the area of foreign policy. The
decision to deal with the West Philippine Sea issue in the manner such as
the JMSU falls directly within the prerogative powers of the executive to
conduct foreign relations, including the right to speak freely with foreign
states on all such matters.
This is one of the executive's residual powers that is legally left in the
hands of the executive through the President. 6 While limited, it is
nonetheless a source of non-statutory administrative power accorded
by jurisprudence 7 and statute 8 to the Chief Executive. To stress, the power
in foreign affairs includes the making of representations to foreign
governments. The decision to enter into the JMSU was made in the
exercise of this power over foreign relations.
In exercising its powers over foreign relations, the executive is not
exempt from constitutional scrutiny. It is for the executive and not the courts
to decide whether and how to exercise its powers, but the courts clearly
have the jurisdiction and the duty to determine whether this power
asserted by the executive does in fact exist and, if so, whether its exercise
infringes the Constitution.
T h e limited power of the courts to review exercises of the foreign
relations power for constitutionality reflects the fact that in a constitutional
democracy, all government power must be exercised in accordance with the
Constitution. This said, judicial review of the exercise of this power for
constitutionality remains sensitive to the fact that the executive branch
of government is responsible for decisions under this power, and that
the executive is better placed to make such decisions within a
range of constitutional options. The government must have
flexibility in deciding how its duties under the power are to be discharged.
But it is for the courts to determine the legal and constitutional limits
within which such decisions are to be taken. It follows that in the case of
refusal by a government to abide by constitutional constraints,
courts are empowered to make orders ensuring that the government's
foreign affairs powers are exercised in accordance with the Constitution.
Having concluded that the courts possess a narrow power to review
a n d intervene on matters of foreign affairs to ensure the
constitutionality of executive action, the final question is how now to
exercise this power?
In my opinion, our first concern is that our review must not give
little weight to the constitutional responsibility of the executive to make
decisions on matters of foreign affairs in the context of complex
and ever-changing circumstances, taking into account our broader
national interests. TIADCc
Our second concern is the impact of the relief the Court is going to
provide in the premises. Here, the JMSU involves areas, which, if the
ponencia's narration were to be believed, are far from the immediate
control of the Court and even the national government as a whole and
where other countries are prowling with their own armed forces. The
likelihood that the remedy will be effective is unclear. The impact on
our foreign relations of a declaration of unconstitutionality cannot be
properly assessed by the Court.
This brings us to our third concern, already mentioned above: the
inadequacy of the evidentiary record. The record before us gives a
necessarily incomplete picture of the range of considerations currently
faced by petitioners and respondents in assessing the relief prayed for. We
do not know what negotiations, if at all, may have been taking place or
will take place, between the parties to the JMSU. As observed elsewhere:
The timing of representations if they are to be made, the
language in which they should be couched, and the sanctions (if any)
which should follow if such representations are rejected are matters
with which courts are ill-equipped to deal. 9
T h e evidentiary uncertainties, the limitations of the Court's
institutional competence, and the need to respect the foreign
relations powers of the executive, lead me to conclude that the proper
remedy is to interpret the word exploration in Section 2, Article XII of the
Constitution in a manner that liberally considers the foreign relations
element in the instrument in which it is implicated, which is the JMSU, but
which must still be reasonable.
Two. The JMSU does not involve the exploration, development and
utilization of natural resources as envisioned in Section 2, Article XII of the
Constitution. This is because the JMSU is not intended to extract and
carry off of natural resources from the project areas. An exploration in
this context is not covered by Section 2, Article XII. To fall under the latter,
t h e exploration must involve the extraction and carrying off of
natural resources.
This interpretation is not new in the Philippines. It is recognized in
subsections 3 (q) and (aq) of Philippine Mining Act of 1995 10 and in Apex
Mining Co., Inc. v. Southeast Mindanao Gold Mining Corporation . 11 This
interpretation of exploration as being exempt from Section 2, Article XII
has been upheld in La Bugal-B'laan Tribal Association, Inc. v. Ramos . 12 This
interpretation is also consistent with the characterization of this case as
predominantly a foreign relations matter where the Court should tread
more carefully than usual in upsetting the foreign relations power of the
executive. Only in the clearest of cases may the Court dictate upon the
executive on what to do in matters of foreign relations and impose a relief
that is based on clear and solid evidentiary footing on how it upholds the
Constitution, how it impacts on the executive's conduct of international
relations, and how it involves our paramount public interests. In the absence
of such evidentiary assurances, we ought to defer within reason to the
executive's decision in the premises.
Based on the foregoing, I dissent. Accordingly, I vote to deny the
petition.
ZALAMEDA, J., dissenting:
Protection of our country's sovereignty, territory, and natural resources
is a policy that lies at the core of the 1987 Constitution's provisions on
National Economy and Patrimony. Thus, it is understandable, if not
commendable, to be vigilant in laying out and explaining the intricacies and
boundaries of the rules stated therein. Verily, as the guardian of the
Constitution, this Court has the power to rule on what our law is, and ensure
that the other branches of the government do not transgress constitutional
boundaries. That this Court is able to make definitive rulings on political
matters does not mean, however, that it should always introduce itself into
"controversial" disputes such as the case at bar. I write this dissent to draw
attention to the equally crucial duty to restrain the exercise of this Court's
judicial power in moot and academic cases.
Section 1 of Article VIII of the 1987 Constitution is clear. "Judicial power
includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable x x x." Plainly,
courts are authorized to rule only on cases where it can provide legal,
practical, and actual relief to the parties. In the 1936 case of Angara v.
Electoral Commission (Angara), 1 this Court has interpreted this
Constitutional provision to be an encapsulation of the limits of judicial
review, viz.:
The Constitution is a definition of the powers of government.
Who is to determine the nature, scope and extent of such powers?
The Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority
over the other departments; it does not in reality nullify or invalidate
an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the
parties in an actual controversy the rights which that instrument
secures and guarantees to them. This is in truth all that is involved in
what is termed "judicial supremacy" which properly is the power of
judicial review under the Constitution. Even then, this power of
judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and
limited further to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions of
wisdom, justice or expediency of legislation. More than that, 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. 2
Justice Laurel's disquisition in Angara is significant because it
enunciates the policy that judicial power is not absolute and should not be
used as a tool to assert ascendancy over other branches. Indeed, while this
Court is bound by the duty to ensure that the other branches of government
do not transgress constitutional limits, it also has the concurrent obligation
to respect their competence, authority, and discretion. Thus, courts can only
exercise the power of judicial review in a limited sense and upon
concurrence of various requisites, one of which is the existence of an actual
case or controversy.
One of the ways the Court implements this actual case or controversy
rule is by refraining from adjudicating moot and academic cases. A case or
issue is considered moot and academic when it ceases to present a
justiciable controversy by virtue of supervening events, so that an
adjudication of the case or a declaration on the issue would be of no
practical value or use. In such instance, there is no actual substantial relief
which a petitioner would be entitled to, and which would be negated by the
dismissal of the petition. Courts generally decline jurisdiction over such case
or dismiss it on the ground of mootness. This is because the judgment will
not serve any useful purpose or have any practical legal effect since, in the
nature of things, it cannot be enforced. 3
The theory behind the requisites of judicial review, including the rule
against deciding moot cases, is that an ongoing controversy where the self-
interests of the parties are clashing, sharpens the issues and enlightens the
courts on the facts, legal arguments, and policies that are relevant in
resolving the case. When one party can no longer obtain actual relief or the
complained act ceases, it is likely that the interested party will no longer
exert the same effort as when he stands to be injured by the decision. In
such a situation, courts may likely overlook certain matters which may be
relevant in adjudicating the case. Likewise, since the controversies may have
already resolved itself by the occurrence of some event, the courts will just
be rendering advisory opinions which may unnecessarily transcend judicial
functions and intrude into purely political functions. If these "advisory"
opinions become judicial precedents, the risks and complications are
compounded. Further, it is also relevant to highlight that deciding moot
controversies divert judicial resources from ongoing controversies needing
immediate resolution. Thus, in order to manage such possible difficulties, it
is imperative that this Court clarify its basis for deciding moot and academic
cases. 4
At present, jurisprudence is indeed settled that moot cases may still be
decided on the merits if: (1) there was a grave violation of the Constitution;
(2) the case involved a situation of exceptional character and was of
paramount public interest; (3) the issues raised required the formulation of
controlling principles to guide the Bench, the Bar and the public; and (4) the
case was capable of repetition yet evading review.
There are also instances where the Court takes on the role of an
educator, and guides the Bench, the Bar, and the public on the constitutional
or legal principles involved in a certain case. In Salonga v. Paño, 5 the former
Senator Jovito Salonga (Senator Salonga) questioned his arrest and the filing
of Information against him for violation of the Revised Anti-Subversion Act on
account of the Plaza Miranda bombings. However, before this Court rendered
a decision on the case, the charges against Senator Salonga were dropped. 6
This Court, despite the dismissal of the criminal charges against the Senator,
still proceeded to resolve the issue on whether there was a prima facie case
against him, and opined that:
Recent developments in this case serve to focus attention on a
not too well-known aspect of the Supreme Court's functions.
The setting aside or declaring void, in proper cases, of
intrusions of State authority into areas reserved by the Bill of
Rights for the individual as constitutionally protected spheres
where even the awesome powers of Government may not
enter at will is not the totality of the Court's functions.
The Court also has the duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules. It has the
symbolic function of educating [the] bench and bar on the
extent of protection given by constitutional guarantees. 7
(Emphasis supplied.)
I submit that the instant petition should not be exempted from the
application of the actual case or controversy requirement. The Joint Marine
Seismic Undertaking (JMSU) entered into by the China National Offshore Oil
Corporation (CNOOC) and Vietnam Oil and Gas Corporation (PETROVIETNAM)
and Philippine National Oil Company (PNOC) has long expired on 30 June
2008. Thus, there is simply no practical value to adjudicating the issues
concerning a lifeless agreement.
In this case, the ponencia argues that all the four (4) exceptions to the
mootness rule are applicable, granting this Court the authority to rule on the
substantive issues presented in the petition. First, it declared that there is a
grave violation of Section 2, Article XII 8 of the Constitution, since the
government allowed foreign-owned corporations to explore Our country's
petroleum resources. Second, it concluded that the case is of paramount
public interest as it involves the alleged exploration of a portion of the South
China Sea that the Philippines considers to be part of its territory. Third, it
cited this Court's duty under Section 2, Article XII of the 1987 Constitution to
formulate rules for the guidance of the Bench and the Bar, and the necessity
to define the meaning of "exploration" under the Constitution. Finally, it
declared that similar agreements like the JMSU may be entered into in the
future by the government or any of its agencies and/or instrumentalities. 9
I remain unconvinced that the instant case justifies the non-observance
of the mootness principle, thereby allowing this Court to decide the
constitutionality of the JMSU. The basic premise of the ponencia's decision to
take cognizance of the case despite the expiration of the agreement in 2008
is the finding that the activities to be undertaken in the JMSU constitute
exploration that violates the requirements of Section 2, Article XII of the
1987 Constitution. With all due respect, although this conclusion is animated
by the best objectives, I find that it is based on problematic grounds. Central
to the discussion is Section 4.1 of the JMSU, which provides:
seismic lines shall be collected and processed and certain
amount of existing 2D seismic lines shall be reprocessed
within the Agreement Term. The seismic work shall be conducted
in accordance with the seismic program unanimously approved by
the Parties taking into account the safety and protection of the
environment in the Agreement Area.
In the first place, the nature of the exact activities agreed upon, and
actually undertaken by the parties to the JMSU were not sufficiently
established. While scientific textbooks provide useful information on what
seismic survey means, it remains unclear how the same constitutes as
exploration activity. The uncertainty on the meaning of collection and
processing of seismic lines is even made more obvious by other provisions in
the JMSU, viz.:
WHEREAS, the Parties expressed desire to engage in a joint
research of petroleum resource potential of a certain area of the
South China Sea as a pre-exploration activity.
xxx xxx xxx
Article 5.4. The parties shall empower the JOC to:
5.4.1. Formulate the annual work program and budget;
5.4.2. Discuss and determine the manner of data exchange;
5.4.3. Arrange further joint studies;
5.4.4. Formulate the actual plan for seismic line acquisition;
5.4.5. Sign service contracts for seismic acquisition and
processing; and,
5.4.6. Ensure interpretation of and evaluation on the relevant data
and submit final evaluation report to the Parties. (Emphasis supplied.)
Indeed, respondents insist that the parties to the JMSU merely agreed
to undertake a pre-exploration project in the Agreement Area somewhere in
the South China Sea. Basing solely on the records of the case, it remains
unclear what activities were contemplated to be undertaken and how these
activities translate to "exploration" as contemplated under our Constitution.
With the agreement terminated more than a decade ago, I am also unsure
how this supposed seismic survey was actually carried out by the parties to
the JMSU. Without these relevant pieces of information, I cannot, in good
faith, join the majority in concluding that the JMSU is unconstitutional.
Further, the ponencia assumes that the exploration activity was
conducted in our exclusive economic zone. However, the exact location was
not fully litigated by the parties. It was merely based on the unrebutted
approximation of Prof. Giovanni Tapang of the National Institute of Physics of
the University of the Philippines-Diliman of the supposed Agreement Area. To
my mind, these lingering doubts and questions on the scope of the JMSU
highlight the relevance of observing the actual case or controversy. Indeed,
a live or ongoing controversy would have clarified the allegations, sharpened
the arguments of the parties, and assisted this Court in its analysis of the
provisions of the agreement.
Likewise, I find that it is speculative to say that the instant case is
capable of repetition yet evading review. The purpose of this exception is to
allow judicial review of claims which are of short duration that they would
normally escape scrutiny. 10 In Madrilejos v. Gatdula, 11 this Court clarified
that this exception requires the concurrence of two (2) requisites: the
duration of the challenged action is too short to be fully litigated prior to its
cessation or expiration, and (2) a reasonable expectation that the same
complaining party would be subjected to the same action again. In order for
a case to be considered under this exception, the time constraint must be
clear. The seminal case of Roe v. Wade 12 is an oft-cited example of the time
constraint contemplated under this requirement. The petitioner in that case,
then a pregnant woman, questioned the anti-abortion statutes of Texas and
Georgia based on her constitutional right to terminate pregnancy. When the
case reached the Supreme Court of the United States (USSC), her pregnancy
was already completed, thus making it moot. The USSC, however, decided
the issues presented, stating that the laws prohibiting abortion would
continue to inflict wrongs in the future and they would inevitably escape
review because of the short period of human gestation compared to court
litigation.
The "capable of repetition, yet evading review" exception also requires
that there must be a "reasonable expectation" or a "demonstrated
probability" that the same controversy will recur involving the same
complaining party. In David v. Macapagal-Arroyo, 13 this Court considered
the case capable of repetition but evading review given the recurrence of
various "emergencies" from the time she assumed office. Meanwhile, in
Belgica v. Ochoa, Jr. , 14 this Court still entertained and decided the petitions
assailing the Priority Development Assistance Fund in the 2013 General
Appropriations Act despite its abolition because the preparation and passage
of the national budget happen annually.
Going back to the instant Petition, I do not see how the three-year term
of the JMSU is too short of a period for it to be fully litigated in court. While I
do not dismiss petitioners' struggles in securing an official copy of the JMSU,
with their requests for the JMSU being ignored by both the Department of
Foreign Affairs (DFA) and then House of Representatives (HR) Speaker
Prospero Nograles (Speaker Nograles), it was not clear from the records why
the petition was not filed earlier than a month prior to the JMSU's expiration.
Further, I do not view that the case presented a reasonable expectation or
demonstrated probability of repetition. This Court is unaware of any similar
agreement entered into by the succeeding administrations involving our
natural resources within our territory or even in our exclusive economic
zone. Given the foregoing, I find that Our opinion on constitutional issues
concerning a terminated agreement whose meaning and scope were not
fully ventilated by the parties, is speculative and mere advisory in nature.
To conclude, the Constitution indeed vests this Court the authority to
rule, and guide the public on the intricacies of the Constitution and the law,
but it is not a license to solve and end all conceivable problems, particularly
in controversies that may involve matters beyond the legal realm. While this
Court can create impactful precedents in moot cases of public importance, it
is relevant to point out that the legislative and the executive action can also
accomplish the same or equivalent consequences with laws or executive
issuances, backed by their own unique powers and perspectives. This is
precisely why in a democratic jurisdiction as ours, advisory opinions are
generally avoided. This is because We run the risk of overstepping the
boundaries of the Constitution which We are also bound to protect.
Therefore, it is imperative that whenever this Court decides moot cases, it is
ensured that as much as possible, the adverse and complete litigation
present in a live controversy is, at least approximated. 15
ACCORDINGLY, I vote to DENY the Petition. AIDSTE
Footnotes
* On leave.
1. With Application for Temporary Restraining Order and/or Preliminary Injunction.
Rollo, pp. 3-59.
2. Id. at 76-89.
3. Id. at 77.
4. Id. at 78.
5. Id.
6. Id. at 78-79.
7. Id. at 80.
8. Referring to the Joint Marine Seismic Undertaking.
9. Article 6.1 of the JMSU. Rollo, pp. 80-82, see Articles 5 and 6.1 of the JMSU.
10. Id. at 85, see Article 10 of the JMSU.

11. Id. at 88, see Article 11.6 of the JMSU.
12. Id. at 20.
13. Id. at 21.
14. Id. at 22-23.
15. Id. at 11-13.
16. Id. at 5-6.
17. Id. at 9.
18. Id. at 462.
19. Id. at 446-451.
20. Id. at 462.
21. Id. at 451-458.

22. Id. at 510-512.
23. Id. at 516.
24. Id. at 520-521.
25. Id. at 523A-523B.
26. Id. at 551-621.
27. Id. at 642-679.
28. Id. at 653-676.
29. Rubrico v. Macapagal-Arroyo, 627 Phil. 37, 62 (2010), citing Bernas, THE
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES 738 (1996) and
Soliven v. Makasiar, 249 Phil. 394 (1988).
30. 522 Phil. 705 (2006).
31. Id. at 764.
32. Rollo, p. 509.
33. G.R. No. 227635 (Resolution), October 15, 2019.
34. Id.
35. Aguinaldo v. Aquino III, 801 Phil. 492, 521 (2016).
36. 752 Phil. 716 (2015).
37. Francisco, Jr. v. House of Representatives, 460 Phil. 830, 883 (2003).
38. Aguinaldo v. Aquino III, supra note 35 at 520.

39. Gios-Samar, Inc. v. Department of Transportation and Communications, G.R.
No. 217158, March 12, 2019.
40. The Diocese of Bacolod v. Commission on Elections, 751 Phil. 301, 328 (2015).
41. Id. at 331-335.
42. Id. at 335.
43. Supra note 39.

44. Mandaue Realty & Resources Corp. v. Court of Appeals, 801 Phil. 27, 36-37
(2016).
45. 821 Phil. 423 (2017).
46. Id. at 437, citing Pinakamasarap Corp. v. National Labor Relations Commission ,
534 Phil. 222, 230 (2006).
47. Rollo, pp. 60-61, 64, 71-72.
48. See also Cadayona v. Court of Appeals, 381 Phil. 619, 624 (2000).
49. Francisco, Jr. v. House of Representatives, supra note 37 at 892.
50. Balag v. Senate of the Philippines, 835 Phil. 451, 461 (2018).
51. David v. Macapagal-Arroyo, supra note 30 at 753-754.
52. Resident Marine Mammals of the Protected Seascape Tañon Strait v. Reyes,
758 Phil. 724, 749 (2015).
53. Id.
54. Supra note 30.

55. Supra note 36.
56. Supra note 48.
57. Id. at 779.
58. 433 Phil. 506, 522 (2002).
59. 310 Phil. 113, 137 (1995).
60. 733 Phil. 365, 392 (2014).
61. 219 Phil. 402 (1985).
62. Id. at 429-430.
63. G.R. No. 210500, April 2, 2019.
64. SECTION 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and legal assistance to
the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts
of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court.
65. David v. Macapagal-Arroyo, supra note 30 at 755-757.
66. Ifurung v. Carpio-Morales , 831 Phil. 135, 154 (2018).
67. Id. at 155, citing Funa v. Agra, 704 Phil. 205, 218 (2013).
68. Rollo, p. 6.
69. 486 Phil. 754, 773 (2004).
70. Rollo, p. 6.
71. Supra note 37.
72. 302 Phil. 107 (1994).
73. Id. at 174-175.
74. G.R. Nos. 252578, 252579, 252580, 252585, 252613, 252623, 252624, 252646,
252702, 252726, 252733, 252736, 252741, 252747, 252755, 252759,
252765, 252767, 252768, 16663, 252802, 252809, 252903, 252904, 252905,
252916, 252921, 252984, 253018, 253100, 253118, 253124, 253242,
253252, 253254, 254191 & 253420, December 7, 2021.
75. Id.
76. Rollo, pp. 19-20 and 90-92.
77. Id. at 19.

78. La Bugal-B'laan Tribal Association, Inc. v. Ramos , supra note 69 at 897.
79. Miners Association of the Phils., Inc. v. Factoran, Jr., supra note 59 at 120.
80. Rollo, p. 594.
81. 4.1. It is agreed that certain amount of 2D and/or 3D seismic lines shall be
collected and processed and certain amount of existing 2D seismic lines shall
be reprocessed within the Agreement Term. The seismic work shall be
conducted in accordance with the seismic program unanimously approved by
the Parties taking into account the safety and protection of the environment
in the Agreement Area. (Id. at 80.)
82. Id. at 591.

83. Id. at 657.
84. Francisco, Jr. v. House of Representatives, supra note 37 at 884.
85. https://dictionary.cambridge.org/dictionary/english/exploration. Last accessed
on July 15, 2022.
86. REPUBLIC ACT NO. 7942, Section 3 (q).
87. Note that currently Presidential Decree No. 87 or the Oil Exploration and
Development Act of 1972 is the general law on exploration, development,
and utilization of indigenous petroleum in the Philippines (see Resident
Marine Mammals of the Protected Seascape Tañon Strait v. Reyes, supra
note 52). However, the Petroleum Act of 1949 remains to be operative as
there is no law or case law that declare its express repeal. Implied repeals
are frown upon.
88. REPUBLIC ACT NO. 387, Article 38, as amended by Republic Act No. 3098.
89. Rollo, p. 78.
90. Keary, et al., An Introduction to Geophysical Exploration, 3rd edition, 2002, p. 2.

91. Id. at 21.
92. Id. at 3.
93. Rollo, p. 659.
94. Id. at 657.
95. 620 Phil. 100 (2009).
96. Id. at 127.
97. La Bugal-B'laan Tribal Association, Inc. v. Ramos , supra note 69 at 790-791.
98. Id. See also the Concurring Opinion of Associate Justice Marvic Mario Victor F.
Leonen in Baguio v. Heirs of Abello, G.R. Nos. 192956 & 193032, July 24,
2019.

100. Id. at 904-905.
101. See Resident Marine Mammals of the Protected Seascape Tañon Strait v.
Reyes, supra note 52 at 762.
102. PRESIDENTIAL DECREE NO. 87, Section 6.
103. Rollo, p. 673.
105. Rollo, pp. 559-560.
106. Id. at 660.
107. Id. at 662.
108. Id. at 660.
109. Id. at 39.
110. Id. at 664.
111. Id. at 665-668.
112. Id. at 670.
113. Id. at 78.

114. Id. at 88.
115. Id. at 645.
116. See Apex Mining Co., Inc. v. Southeast Mindanao Gold Mining Corporation,
supra note 95.
supra note 52 at 766.
120. Reagan v. Commissioner of Internal Revenue, 141 Phil. 621, 625 (1969).
121. Pangilinan v. Cayetano, G.R. Nos. 238875, 239483 & 240954, March 16, 2021,
citing Pimentel Jr. v. Executive Secretary, 501 Phil. 303, 313 (2005).
122. 1987 CONSTITUTION, Article VII, Section 21.
123. Rollo, pp. 85-87.
124. 63 Phil. 139, 156-157 (1936).
125. Bengzon v. Drilon, 284 Phil. 245, 260 (1992).
GESMUNDO, C.J., concurring:

1. See Article VII, Section 21 of the Constitution: "No treaty or international
agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate."
2. See La Bugal-B'laan Tribal Association, Inc. v. Ramos , 486 Phil. 754, 772 (2004)
[Per J. Panganiban, En Banc].

3. Ponencia, pp. 20-21.
4. 580 Phil. 422 (2008) [Per J. Carpio-Morales, En Banc].
5. Id. at 487-488.
6. 501 Phil. 303 (2005) [Per J. Puno, En Banc].
7. Id. at 313.
8. 758 Phil. 724 (2015) [Per J. Leonardo-de Castro, En Banc].
9. Id. at 766, citing Joson v. Torres , 352 Phil. 888, 915 (1998) [Per J. Puno, Second
Division].
10. Id. at 766-767.
11. See supra note 2.
12. Id. at 773.
LEONEN, J., concurring:
1. CONST., art. 1 states:
The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the
Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial,
and aerial domains, including its territorial sea, the seabed, the subsoil, the
insular shelves, and other submarine areas. The waters around, between,
and connecting the islands of the archipelago, regardless of their breadth
and dimensions, form part of the internal waters of the Philippines.
2. C.J. Puno, Concurring Opinion in Frivaldo v. Commission on Elections , 327 Phil.
521, 578 (1996) [Per J. Panganiban, En Banc].
3. Saguisag v. Ochoa, Jr., 777 Phil. 280, 471 (2016) [Per J. Sereno, En Banc].
4. 141 Phil. 621 (1969) [Per J. Fernando, En Banc].
5. Id. at 625.
6. CONST. (1935), Art. I, Sec. 1.
7. CONST. (1973), Art. I, Sec. 1.
8. CONST., art. 1.
9. Magallona v. Ermita, 671 Phil. 243 (2011) [Per J. Carpio, En Banc].

10. J. Velasco, Jr., Concurring Opinion in Magallona v. Ermita, 671 Phil. 243, 282-
283 (2011) [Per J. Carpio, En Banc].
11. Republic Act No. 3046 (1961), Sec. 2.
12. J. Puno, Concurring Opinion in Republic v. Court of Appeals, 359 Phil. 530, 625
(1998) [Per J. Purisima, En Banc].
13. Republic Act No. 3046 (1961), fourth whereas clause.
15. Presidential Decree No. 1596 (1978), Sec. 1.
16. Presidential Decree No. 1596 (1978), third whereas clause.
17. Republic Act No. 387 (1949), art. 3.
18. Proclamation No. 370 (1968), first whereas clause.

19. Proclamation No. 370 (1968).
20. CONST. (1935), Art. I, Sec. 1.
21. Proclamation No. 370 (1968).
22. Presidential Decree No. 1599 (1978), third whereas clause.
26. The United Nations Convention on the Law of the Sea (UNCLOS) entered into
force on November 16, 1994.
27. See 6. United Nations Convention on the Law of the Sea, UNITED NATIONS
TREATY COLLECTION, available at
https://treaties.un.org/pages/ViewDetailsIII.aspx?
src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en (last
accessed on March 13, 2023).
28. UNCLOS, art. 309.
29. Antonio T. Carpio, The South China Sea Dispute: Philippine Sovereign Rights
and Jurisdiction in the West Philippine Sea, 90 PHIL. L.J. 459 (460) (2017).
30. North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark;
Federal Republic of Germany/Netherlands), Judgment, I.C.J. 3, 52 (February
20, 1969).
31. UNCLOS, art. 2 (1) in relation to art. 49.

32. UNCLOS, arts. 17, 24 in relation to art. 52.
33. UNCLOS, art. 49 (2).
34. UNCLOS, art. 3.
38. UNCLOS, art. 47 (1).
39. UNCLOS, art. 47 (3).
43. UNCLOS, art. 21 (1), (4).
44. UNCLOS, arts. 22, 53.
46. UNCLOS, arts. 27, 28.
49. UNCLOS, art. 56 (1).
50. UNCLOS, art. 61 (1).
51. UNCLOS, art. 62 (2).
52. UNCLOS, art. 56 (1) (b).

53. UNCLOS, art. 58 (2).
54. UNCLOS, art. 58 (1).
58. See 6. United Nations Convention on the Law of the Sea, UNITED NATIONS
TREATY COLLECTION, available at
https://treaties.un.org/pages/ViewDetailsIII.aspx?
src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en (last
accessed on March 13, 2023).
59. Id. The Philippines made the declaration in response to Australia's objection to
the previous declaration.
61. Magallona v. Ermita, 671 Phil. 243, 267-274 (2011) [Per J. Carpio, En Banc].
62. Administrative Order No. 29 (2012). Naming the West Philippine Sea of the
Republic of the Philippines, and for Other Purpose.
63. Administrative Order No. 29 (2012), Sec. 1.
64. In re South Sea China Arbitration (Philippines v. China), PCA Case No. 2013-19
(Perm. CT. Arb. 2016) at 11-12, par. 28. This pinpoint citation refers to the
copy of the award uploaded to the official website of the Permanent Court of
Arbitration.
65. Id. at 2-3, pars. 7-10.
66. Id. at 111, par. 261.
67. Id. at 111-112, par. 262.
68. Id. at 114, par. 270.
69. Id. at 115, par. 271.
70. Id. at 279-280, pars. 698, 700.
71. Id. at 278, pars. 692-694.
72. Id. at 473-477.
73. Ponencia, p. 17.
74. Id.
75. CONST., Art. II, Sec. 2.

76. Ronald A. Brand, External Sovereignty and International Law, 18 FORDHAM
INT'L L.J. 1685 (1995).
77. J. Leonen, Concurring Opinion in Arigo v. Swift , 743 Phil. 8 (2014) [Per J.
Villarama, Jr., En Banc].
78. Hans Kelsen, Sovereignty and International Law, 48 GEO. L. J. 627 (1960).
79. Manila Prince Hotel v. Government Service Insurance System, 335 Phil. 82, 101
(1997) [Per J. Bellosillo, En Banc].
80. CONST., Art. XII, Sec. 2.
81. J. Leonen, Separate Opinion in Sama v. People, G.R. No. 224469, January 5,
2021 [Per J. Lazaro-Javier, En Banc].
82. J. Leonen, Concurring Opinion in Maynilad Water Services, Inc. v. Secretary of
the Department of Environment and Natural Resources, G.R. Nos. 202897, et
al., August 6, 2019 [Per J. Hernando, En Banc].
83. G.R. Nos. 202897, et al., August 6, 2019 [Per J. Hernando, En Banc].
84. J. Leonen, Concurring Opinion in Maynilad Water Services, Inc. v. Secretary of
the Department of Environment and Natural Resources, G.R. Nos. 202897,
206823 & 207969, August 6, 2019 [Per J. Hernando, En Banc].
85. CONST., Art. II, Sec. 19.

89. J. Kapunan, Separate Opinion in Cruz v. Secretary of Environment and Natural
Resources, 400 Phil. 904, 1059 (2000) [Per Curiam, En Banc].
90. 310 Phil. 113 (1995) [Per J. Romero, En Banc].
91. Id. at 136-137.
92. C.J. Puno, Separate Opinion in Cruz v. Secretary of Environment and Natural
Resources, 400 Phil. 904, 941-942 (2000) [Per Curiam, En Banc].
93. Miners Association of the Philippines v. Factoran, 310 Phil. 113 (1995) [Per J.
Romero, En Banc].

94. 1987 Const., Art. XII, Sec. 2.
95. Alvarez v. PICOP Resources, Inc., 621 Phil. 403, 484 (2009) [Per J. Chico-
Nazario, First Division].
96. CONST., Art. XII, Sec. 2, par. 4.
97. La Bugal-B'laan v. DENR Secretary , 486 Phil. 754 (2004) [Per J. Carpio-Morales,
En Banc].
758 Phil. 724, 761-762 (2015) [Per J. Leonardo-de Castro, En Banc].
99. Republic Act No. 387 (1949).
100. CONST., Art. XII, Sec. 2, par. 2.
101. Ponencia, p. 29.
102. Id. at 29-30.
103. Id.
104. UNCLOS, art. 56 (1).
105. J. Perfecto, Concurring Opinion in Krivenko v. Register of Deeds, 79 Phil. 461,
490-491 (1947) [Per J. Moran, Second Division].
106. Id.
107. CONST., preamble.
LAZARO-JAVIER, J., dissent:
1. Oscar Tan, "Vigilante Lawyering" at https://opinion.inquirer.net/111677/must-
end-vigilante-lawyering#ixzz7eUqXU66H, last accessed on September 10,
2022.
2. GIOS-SAMAR v. Department of Transportation and Communications, 896 Phil.
213, 257 (2019) [Per J. Jardeleza, En Banc].
3. Madrilejos v. Gatdula , G.R. No. 184389, September 24, 2019 [Per J. Jardeleza, En
Banc].
4. 487 Phil. 169, 181 (2004) [Per J. Chico-Nazario, En Banc].
5. Arigo v. Swift , 743 Phil. 8, 44 (2014) [Per J. Villarama, Jr., En Banc].
6. Marcos v. Manglapus, 258 Phil. 479-541 (1989) [Per J. Cortes, En Banc].
7. Id.
8. Section 20, Chapter 7, Title I, Book III of the Administrative Code of 1987.
9. Kaunda v. President of the Republic of South Africa, [2004] ZACC 5, 136 I.L.R.
452, at para. 77, South African Legal Information Institute, at
https://www.saflii.org/za/cases/ZACC/2004/5.html (last accessed on
September 9, 2022).
10. SECTION 3. Definition of Terms. — As used in and for purposes of this Act, the
following terms, whether in singular or plural, shall mean: (q) "Exploration"
means the searching or prospecting for mineral resources by geological,
geochemical or geophysical surveys, remote sensing, test pitting, trending,
drilling, shaft sinking, tunneling, or any other means for the purpose of
determining the existence, extent, quantity and quality thereof and the
feasibility of mining them for profit.
(aq) "Qualified person" means any citizen of the Philippines with capacity to
contract, or a corporation, partnership, association, or cooperative organized
or authorized for the purpose of engaging in mining, with technical and
financial capability to undertake mineral resources development and duly
registered in accordance with law at least sixty per centum (60%) of the
capital of which is owned by citizens of the Philippines: Provided, That a
legally organized foreign-owned corporation shall be deemed a qualified
person for purposes of granting an exploration permit, financial or technical
assistance agreement or mineral processing permit.
11. 620 Phil. 100, 129 (2009) [Per J. Chico-Nazario, En Banc]: "An exploration
permit grantee is vested with the right to conduct exploration only, while an
FTAA or MPSA contractor is authorized to extract and carry off the mineral
resources that may be discovered in the area. An exploration permit holder
still has to comply with the mining project feasibility and other requirements
under the mining law. It has to obtain approval of such accomplished
requirements from the appropriate government agencies. Upon obtaining
this approval, the exploration permit holder has to file an application for an
FTAA or an MPSA and have it approved also. Until the MPSA application of
SEM is approved, it cannot lawfully claim that it possesses the rights of an
MPSA or FTAA holder, thus: . . . prior to the issuance of such FTAA or mineral
agreement, the exploration permit grantee (or prospective contractor)
cannot yet be deemed to have entered into any contract or agreement with
the State . . ."
12. See 486 Phil. 754 (2004) [Per J. Panganiban, En Banc].
ZALAMEDA, J., dissenting:

1. 63 Phil. 139 (1936).
2. Id.
3. 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.
4. See Cases Moot on Appeal: A Limit on the Judicial Power, 103 University of
Pennsylvania Law Review, 772, 796 (1955).
5. 219 Phil. 402 (1985).
6. Id.
7. Id.
8. Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources are owned by the State.
With the exception of agricultural lands, all other natural resources shall not
be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State. The
State may directly undertake such activities, or it may enter into co-
production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose
capital is owned by such citizens. Such agreements may be for a period not
exceeding twenty-five years, renewable for not more than twenty-five years,
and under such terms and conditions as may be provided by law. In cases of
water rights for irrigation, water supply fisheries, or industrial uses other
than the development of water power, beneficial use may be the measure
and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources
by Filipino citizens, as well as cooperative fish farming, with priority to
subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations
involving either technical or financial assistance for large-scale exploration,
development, and utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In
such agreements, the State shall promote the development and use of local
scientific and technical resources.
The President shall notify the Congress of every contract entered into in
accordance with this provision, within thirty days from its execution.
9. Ponencia, pp. 13-14.
10. Supra note 4.
11. 03 University of Pennsylvania Law Review, 772, 796 (1955).
12. 410 U.S. 113 (1973).
13. 522 Phil. 705 (2006).
14. 721 Phil. 416 (2013).
15. Supra note 4.

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EN BANC

[G.R. No. 182734. January 10, 2023.]

BAYAN MUNA PARTY-LIST REPRESENTATIVES SATUR C.

Before Us is an original action for certiorari and prohibition 1 assailing

Petitioners ascribed grave abuse of discretion amounting to lack or

Similar arguments were raised in De Lima v. Duterte, 33 which is a

Nevertheless, the moot and academic principle is not a magic formula

I n David v. Macapagal-Arroyo, 54 We assumed jurisdiction over the

We employ the ﬁrst principle of constitutional construction, that is,

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Preliminarily, We find that the government approved the JMSU although

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Inherent in a state's sovereignty is its power to deﬁne the limits of its

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xxx xxx xxx

Thus, international law also recognizes the constitutional prerogatives

The economic policy on the exploration, development and

The State shall protect the nation's marine wealth in its

Notwithstanding AO No. 29, We shall not refer to the

10. Id. at 85, see Article 10 of the JMSU.

21. Id. at 451-458.

38. Aguinaldo v. Aquino III, supra note 35 at 520.

43. Supra note 39.

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77. Id. at 19.

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82. Id. at 591.

90. Keary, et al., An Introduction to Geophysical Exploration, 3rd edition, 2002, p. 2.

99. La Bugal-B'laan Tribal Association, Inc. v. Ramos , supra note 69 at 814.

113. Id. at 78.

GESMUNDO, C.J., concurring:

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9. Magallona v. Ermita, 671 Phil. 243 (2011) [Per J. Carpio, En Banc].

18. Proclamation No. 370 (1968), first whereas clause.

31. UNCLOS, art. 2 (1) in relation to art. 49.

52. UNCLOS, art. 56 (1) (b).

75. CONST., Art. II, Sec. 2.

87. CONST., Art. XII, Sec. 2.

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ZALAMEDA, J., dissenting:

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