G.R. lo.

182734 — BAYAN MUNA PARTY-LIST

REPRESENTATIVES SATUR C. OCAMPO and TEODORO A.
CASIÑO, ANAKPAWIS REPRESENTATIVE CRISPIN B. BELTRAN,
GABRIELA WOMEN'S PARTE’ REPRESENTATI4’ES LIZA L.
MAZA and LUZVIMINDA C. ILAGAN, REP. LORENZO R. TAÑADA
III, and REP. TEOFISTO L. GUINGONA III, Petitioners v.
PRESIDENT GLORIA MACAPAGAL-ARROYO, EXECUTIVE
SECRETARY EDUARBO R. ERMITA, SECRETARY OF THE
DEFAR"fMENJ’ OF FCIREIGN AFFAIRS, SECRETARY OF TDE
DEPAR"£MENT OÍ’ ENERGY, PHILIPPINE NATIONAL OIL
COMPANY, and PIIILIPPINE NATIONAL OIL COMPANY
EXPLORATION CORPORATION, Respondents.

Date Piomulgated:

DIS“SF.NTLNG OPINION

ZALAMEDA, J..

Protection of our country's sove eignty, territory, and natural

resources is a policy that lie. at the core of the 1987 Constitution's
provisions on National Economy and Patrimony. Thus, it is understandable,
if not commendablC, 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 otbCr branches of the go •emment 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 *he equally crux:ia1 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

pov•er includes the duty of the courts of justice to settle actual controversies
involving rights which arc legally demandablc and enforceable xxx.”
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.
Dissenting Opinion 2 G.R. No. 182734

Electoral Commission (Angara),' 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 ofjudicial 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.

' 63 Phil. 139 (1936).

2 Id.
Dissenting Opinion 3 G.R. No. 182734

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
casesg4

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,’ 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.* This Court, despite the dismissal of the criminal charges against
the Senator, still proceeded to resolve the issue on whether there was a

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).
219 Phil. 402 (1985).
6 Id.
Dissenting Opinion 4 G.R. No. 182734

prima facie case against him, and opined that:

Recent developments in this case serve to focus attentlon on a not

too well-l‹nown 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 of the Constitution, since the

7
Id.
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.
Dissenting Opinion G.R. No. 182734

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.

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 poneucia'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:

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.

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, via. :

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.

XX XX

Article 5.4 The parties shall empower the JOC to:

The President shall notify the Congress of every contract entered into in accordance with this provision,
within thirty days from its execution.
Ponencia, pp. 13-14.
Dissenting Opinion 6 G.R. No. 182734

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 undertalce 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 terminatCd 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 Yepetition 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. 0 In Madrilejos v. Gn/dtf/a,l1 this Court clarifled
that this exception requirCs 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. arid (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 constiaint must be
clear. The seminal case of foe v. bade'” is an oft-cited example of the time
constraint contemplated under this requirement. The petitioner in that case,

'0 Supra note 4.

I’ 03 University of Pennsylvania Law Review, 772, 796 (19554.
4 i 0 U.S. 113 (1973).
Dissenting Opinion 7 G.R. No. 182734

then a pregnant oman, 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 coiTipleted, 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 “reasonablC expectation” or a “demonstrated
probability” that the same controversy will recur involving the same
complaining party. lii Da»id v. XIacapagal-Arroyo, 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. Gchoa, Mr.,1‘ 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 SMS U 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 Noggrales (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 natuml 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 iii 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 iiioot 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

.522 Phil. 705 t2006j.

” 72 l 1•hil. 4! 6 (2013).
Dissenting Opinion s G.R. No. 1827 4

issuances, baclced 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 impCrative 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."

ACCORDINGLY, I vote to DENY the Petition.

. ALAMEDA

” Supra note 4.