Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88637 September 7, 1989
CONGRESSMAN ENRIQUE T. GARCIA, Second District of Bataan,
petitioner,
vs.
THE BOARD OF INVESTMENTS, THE DEPARTMENT OF TRADE AND INDUSTRY, BATAAN PETROCHEMICAL CORPORATION and PILIPINAS SHELL CORPORATION, respondents.
GRIÑO-AQUINO, J.:
In this petition for certiorari and prohibition with a prayer for preliminary injunction, the petitioner, as congressman for the second district of Bataan, assails the approval by the Board of Investments (BOI) and the Department of Trade and Industry (DTI) of the amended application for registration of the Bataan Petrochemical Corporation, which seeks to transfer the site of its petrochemical complex from Bataan, the original situs of choice, to the province of Batangas.
Since the case presents purely legal issues, and the subject of the controversy vitally affects the economic interests of the country which should not pend for too long, the Court, after hearing the parties' extensive oral and written arguments on the petitioner's application for preliminary injunction, believes that it may now decide the merits of the petition as well.
Proclamation No. 361 dated March 6, 1968, as amended by Proclamation No. 630 dated November 29, 1969, reserved a 388-hectare parcel of land of the public domain located at Lamao, Limay, Bataan for "industrial estate purposes," in line with the State policy of promoting and rationalizing the industrialization of the Philippines. P.D. No. 1803, dated January 16, 1981, enlarged the area by 188 hectares, making it a total of 576 hectares, reserved for the Petrochemical Industrial Zone under the administration, management and ownership of the Philippine National Oil Company (PNOC).
The Bataan Refining Corporation (BRC for short) is a wholly government-owned corporation, located in Bataan. It produces 60% of the national output of naphtha.
Taiwanese investors in a petrochemical project formed the Bataan Petrochemical Corporation (BPC) and applied with BOI for registration as a new domestic producer of petrochemicals. Its application specified Bataan as the plant site. One of the terms and conditions for the registration of the project was the use of "naphtha cracker" and "naphtha" as feedstock or fuel for its petrochemical plant. The petrochemical project was to be a joint venture with PNOC. BPC was issued a Certificate of Registration on February 24, 1988 by BOI.
BPC was accorded pioneer status and was given fiscal and other incentives by BOI, like, (1) exemptions from tax on raw materials, (2) repatriation of the entire proceeds of liquidation of investments in currency originally made and at the exchange rate obtaining at the time of repatriation; and (3) remittance of earnings on investments. As additional incentive, the House of Representatives approved a bill introduced by the petitioner, Congressman Garcia, eliminating the 48% ad valorem tax on naphtha if and when it would be used as raw material in the petrochemical plant. The chairman of BPC, Tomas T.N. Hsi, profusely welcomed the bill, stating:
This project is aiming at a boon not only to the province of Bataan, but to the country of the Philippines in general. It will support the development of the Philippine petrochemical industry by providing an ability to compete in the world market for manufactured petrochemical derivatives such as polyethylene and polypropylene products . . . (p. 7, Rollo.)
However, in February 1989, A. T. Chong, chairman of USI Far East Corporation, the major investor in BPC personally delivered to Trade Secretary Jose Concepcion a letter dated January 25, 1989, advising him of BPC's desire to amend the original registration certificate of its project by changing the job site from Limay, Bataan, to Batangas (Annex F, p. 51, Rollo). News of the shift was published by one of the major Philippine dailies which disclosed that the cause of the relocation of the project is the insurgency and unstable labor situation in Bataan. The presence in Batangas of a huge liquefied petroleum gas (LPG) depot owned by the Pilipinas Shell Corporation was another consideration.
The congressmen of Bataan vigorously opposed the transfer of the proposed petrochemical plant to Batangas. At a conference of the Taiwanese investors with President Aquino and her Secretary of Defense and Chief of Staff of the Army, the President expressed her preference that the Bataan petrochemical plant be established in Bataan.
However, despite speeches in the Senate and in the House opposing the transfer of the project to Batangas, BPC filed in the BOI on April 11, 1989 a request for "approval of an amendment of its investment application ... for establishing a petrochemical complex in the Philippines." (Annex F, p. 51, Rollo.) The amendments consisted of. (1) increasing the investment amount from US$220 million to US$320 million; (2) increasing the production capacity of its naphtha cracker, polyetheylene plant and polypropylene plant; (3) changing the feedstock from naphtha only to "naphtha and/or liquefied petroleum gas;" (4) transferring the job site from Limay, Bataan to Batangas (Annex F, p. 51, Rollo).
Senator Ernesto Maceda, Antonio Francisco, vice-president and general manager of the Bataan Refining Corporation, Congressman Felicito C. Payumo of the lst District of Bataan, herein petitioner Congressman Enrique Garcia of the Second District, the provincial Governor of Bataan, the League of Mayors and various civic and professional organizations all opposed the transfer of the project to Batangas (pp. 10, 11, 12, Rollo; Annex Q, p. 81, Rollo).
On May 4, 1989, petitioner addressed a letter to Secretary Concepcion of the Department of Trade and Industry (DTI), through BOI vice-chairman and manager Tomas Alcantara, requesting for "a copy of the amendment reportedly submitted by Taiwanese investors, to their original application for the installation of the Bataan Petrochemical Plant, as well as the original application itself together with any and all attachments to said original application and the amendment thereto." (Annex K, p. 70, Rollo.)
On May 21, 1989, BOI vice-chairman Alcantara informed petitioner that the Taiwanese investors declined to give their consent to the release of the documents requested (Annex O).
On May 25, 1989, the BOI approved the revision of the registration of BPC's petrochemical project (Annex S, p. 84, Rollo).
On June 26, 1989, petitioner filed a petition for certiorari and prohibition in this Court, with a prayer for preliminary injunction, alleging that the BOI and DTI gravely abused their discretion:
(a) in not observing due process in approving without a hearing, the revisions in the registration of the BPC's petrochemical project;
(b) in refusing to furnish the petitioner with copies of BPC's application for registration and its supporting papers in violation of the Government's policy of transparency;
(c) in approving the change in the site of BPC's petrochemical plant from Bataan to Batangas in violation of PD Nos. 949 and 1803 which establishes Lamao, Limay, Bataan as the "petrochemical industrial zone;"
(d) in approving the change in feedstock from naphtha only, to naphtha and/or lpg; and
(e) in showing gross partiality for BPC.
This Court is not concerned with the economic, social, and political aspects of this case for it does not possess the necessary technology and scientific expertise to determine whether the transfer of the proposed BPC petrochemical complex from Bataan to Batangas and the change of fuel from naphtha only to "naphtha and/or LPG" will be best for the project and for our country. This Court is not about to delve into the economics and politics of this case. It is concerned simply, with the alleged violation of due process and the alleged extra limitation of power and discretion on the part of the public respondents in approving the transfer of the project to Batangas without giving due notice and an opportunity to be heard to the vocal opponents of that move.
The Omnibus Investments Code of 1987 (Executive Order No. 226) of July 16, 1987 expressly declares it to be the policy of the State "to accelerate the sound development of the national economy ... by encouraging private Filipino and foreign investments in industry, agriculture, forestry, mining, tourism and other sectors of the economy." For this purpose, the Code mandates the holding of "consultations with affected communities whenever necessary" (Art. 2, subpar. 2 of the Omnibus Investments Code). Correspondingly, Art. 33 provides that: whenever necessary, the Board, through the People's Economic Councils, shall consult the communities affected on the acceptability of locating the registered enterprise within their community."
The Code also requires the "publication of applications for registration," hence, the payment of publication and other necessary fees ... prior to the processing and approval of such applications (Art. 7, subpar. 3, Omnibus Investments Code).
As provided by the law, the BPC's application for registration as a "new export producer of ethylene, polyethylene and polypropylene was published in the "Philippine Daily Inquirer" issue of December 21, 1987. The notice invited "any person with valid objections to or pertinent comments on the above-mentioned application ... (to file) his/her comments/objections in writing with the BOI within one (1) week from the date of this publication" (Annex 1, public respondent's Comment).
Since the BPC's amended application (particularly the change of location from Bataan to Batangas) was in effect a new application, it should have been published so that whoever may have any objection to the transfer may be heard. The BOI's failure to publish such notice and to hold a hearing on the amended application deprived the oppositors, like the petitioner, of due process and amounted to a grave abuse of discretion on the part of the BOI.
There is no merit in the public respondents' contention that the petitioner has "no legal interest" in the matter of the transfer of the BPC petrochemical plant from the province of Bataan to the province of Batangas. The provision in the Investments Code requiring publication of the investor's application for registration in the BOI is implicit recognition that the proposed investment or new industry is a matter of public concern on which the public has a right to be heard. And, when the BOI approved BPC's application to establish its petrochemical plant in Limay, Bataan, the inhabitants of that province, particularly the affected community in Limay, and the petitioner herein as the duly elected representative of the Second District of Bataan acquired an interest in the project which they have a right to protect. Their interest in the establishment of the petrochemical plant in their midst is actual, real, and vital because it win affect not only their economic life but even the air they will breathe.
Hence, they have a right to be heard or "be consulted" on the proposal to transfer it to another site for the Investments Code does require that the "affected communities" should be consulted. While this Court may not require BOI to decide that controversy in a particular way, we may require the Board to comply with the law and its own rules and regulations prescribing such notice and hearing.
This Court in the cases of Tañada vs. Tuvera, 136 SCRA 27 and Legaspi vs. Civil Service Commission, 150 SCRA 530, has recognized a citizen's interest and personality to procure the enforcement of a public duty and to bring an action to compel the performance of that duty. In this case, what the petitioner seeks is for the Board of Investments to hold a hearing where he may present evidence in support of his opposition to the BPC's amended application for registration (which amounts to a new application) since one of the effects of the amendment is to change the site of its petrochemical plant from Bataan to Batangas.
The petitioner's request for xerox copies of certain documents flied by BPC together with its original application, and its amended application for registration with BOI, may not be denied, as it is the constitutional right of a citizen to have access to information on matters of public concern under Article III, Section 7 of the 1987 Constitution. The confidentiality of the records on BPC's applications is not absolute for Article 81 of the Omnibus Investments Code provides that they may be disclosed "upon the consent of the applicant, or on orders of a court of competent jurisdiction.' As a matter of fact, a xerox copy of BPC's position paper dated April 10, 1989, in support of its request for the transfer of its petrochemical plant to Batangas, has been submitted to this Court as Annex A of its memorandum.
However, just as the confidentiality of an applicant's records in the BOI is not absolute, neither is the petitioner's right of access to them unlimited. The Constitution does not open every door to any and all information. "Under the Constitution, access to official records, papers, etc. is subject to limitations as may be provided by law (Art. III, Sec. 7, second sentence). The law may exempt certain types of information from public scrutiny (Legaspi vs. Civil Service Commission, 150 SCRA 530). The trade secrets and confidential, commercial and financial information of the applicant BPC, and matters affecting national security are excluded from the privilege.
At the oral argument on the petitioner's application for a preliminary action on July 4, 1989, the Court was informed that if the BOI will hold a hearing on the BPC's amended application, the petitioner will be able to present his evidence in opposition to the transfer of the project to Batangas within a period of one week. After such hearing, the BOI shall render its decision which the petitioner may appeal to the President as provided in Article 36 of the Investments Code. Her decision will be final and unappealable.
WHEREFORE, the petition for certiorari is granted. The Board of Investments is ordered: (1) to publish the amended application for registration of the Bataan Petrochemical Corporation, (2) to allow the petitioner to have access to its records on the original and amended applications for registration, as a petrochemical manufacturer, of the respondent Bataan Petrochemical Corporation, excluding, however, privileged papers containing its trade secrets and other business and financial information, and (3) to set for hearing the petitioner's opposition to the amended application in order that he may present at such hearing all the evidence in his possession in support of his opposition to the transfer of the site of the BPC petrochemical plant to Batangas province. The hearing shall not exceed a period of ten (10) days from the date fixed by the BOI, notice of which should be served by personal service to the petitioner through counsel, at least three (3) days in advance. The hearings may be held from day to day for a period of ten (10) days without postponements. The petition for a writ of prohibition or preliminary injunction is denied. No costs.
SO ORDERED.
Narvasa, Gutierrez, Jr., Cruz, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur.
Fernan, C.J., Paras, and Feliciano, JJ., took no part.
Separate Opinions
MELENCIO-HERRERA, J., dissenting:
On 17 December 1987, a group of Taiwanese investors, doing business under the name of Bataan Petrochemical Corporation (BPC), filed with the Board of Investments (BOI) an application for registration as a new export producer of petrochemicals. The notice of application was duly published in the Philippine Daily Inquirer on 21 December 1987. The application, as submitted, specified that the amount of the investment for the establishment of a petrochemical complex in the Philippines was $220 million and that the plant was to be located in Bataan using 41 naphta as feedstock.
On 14 January 1988, after compliance with other legal requirements, the BOI approved the application, and issued the corresponding Certificate of Registration on 24 February 1988. BPC was accorded pioneer status and became entitled to the incentives provided for in the Omnibus Investments Code.
In February 1989, BPC sought to amend its application by proposing the change of plant site from Bataan to Batangas and the feedstock from "naphta only" to "naphta and/or LPG," and increasing its investment to $320 million making the project the single biggest foreign investment in the Philippines to date.
On 11 April 1989, BPC formally asked the BOI for approval of the proposed amendments. Petitioner, the legislative representative of the Second District of Bataan, opposed the change of the plant site in a privilege speech before Congress. He also sent letters to the BOI and the Department of Trade and Industry setting forth his objections to the transfer. In a hearing conducted by the Senate Committee on Ways and Means, petitioner appeared and expounded on his position.
On 25 May 1989, the BOI approved the revisions to the registered petrochemical project. Earlier, or on 21 May 1989, citing Article 81 of the Omnibus Investments Code of 1987, the BOI denied petitioner's request for a copy of the revisions submitted by the investors because the latter had declined to give their consent to the disclosure.
On 27 May 1989, a meeting was called by President Aquino in Malacanang to discuss the transfer of the project site. Present at the meeting were BOI officials, the petitioner and the other Congressman from Bataan. Petitioner requested the President to reconsider the BOI decision approving the transfer. On 24 June 1989, the President again called a meeting with the Bataan Congressmen, the Governor, and the Mayors of the province. She asked the Bataan officials to withdraw their objections to the transfer of the plant site to Batangas, lest the investors pack up and leave for, after all, Batangas is also in the Philippines and some of the "downstream" industries which would spring from a petrochemical complex may later be located in Bataan. The Bataan officials agreed to drop their objections, except for petitioner who instituted this Petition for certiorari and Prohibition before this Court (p. 11, Opposition by public respondents).
In his Petition, petitioner alleges that the BOI committed grave abuse of discretion and denied him due process when it approved, without a hearing, the amendments to the registration of the BPC petrochemical project; when it denied petitioner's request for a copy of the amendments; and when it approved the change of the plant site and feedstock of the plant.
As stated in the majority opinion, the Court is not concerned with the economic, social and political aspects of the case.
In ruling in favor of petitioner, the majority faults the BOI with grave abuse of discretion and has ordered it (1) to publish the amended application for registration; (2) to allow petitioner to have access to its records on the original and amended applications for registration, excluding trade secrets; and (3) to set for hearing petitioner's opposition to the amended application.
With all due respect, I find no grave abuse of discretion on the part of BOI, nor denial by it to petitioner of due process.
As regards publication, Article 54 of the Omnibus Investments Code provides:
Art. 54. Publication and Posting of Notices. — Immediately after the application has been given due course by the Board, the Secretary of the Board or any official designated by the Board shall require the applicant to publish the notice of the action of the Board thereon at his expense once in a newspaper of general circulation in the province or city where the applicant has its principal office, and post copies of said notice in conspicuous places, in the once of the Board or in the building where said office is located; setting forth in such copies the name of the applicant, the business in which it is engaged or proposes to engage or invest, and such other data and information as may be required by the Board. No approval or certificate shall be valid without the publication and posting of notices as herein provided. (Italics supplied)
Clearly, it is not the application itself that is required to be published but notice of the action of the Board plus the specified data. Thus, the Notice of Publication, which appeared in the Inquirer, simply read:
Notice is hereby given that the application of BATAAN PETROCHEMICAL CORPORATION ... for registration with the Board of Investments under Book I of the Omnibus Investment Code of 1987, otherwise known as Executive Order No. 226 as new export producer of ethylene, polyethylene and polypropylene has been officially accepted on December 17, 1987 and is currently being processed.
Any person with valid objections to or pertinent comments on the above-mentioned application may file his/her comments/objections in writing with the BOI within one (1) week from the date of this publication.
Let this notice be published at the expense of the applicant
... (Annex "1," Opposition).
Absent the requirement of publication of the application itself, there should be no need either to publish the amendments to the application. The statement in the majority opinion that the amended application is considered a new application does not find support in the Omnibus Investments Code. After all the amendment did not change the essence or nature of the petrochemical project but only the site, and the feedstock.
Specially significant, too, is the fact that the confidentiality of applications is specifically provided for in the Omnibus Investments Code. Thus:
Art. 81. Confidentiality of Applications. — All applications and their supporting documents filed under this Code shall be confidential and shall not be disclosed to any person, except with the consent of the applicant or on orders of a court of competent jurisdiction.
Considering that all applications and their supporting documents are confidential and are not to be disclosed to any person, it follows that amendments thereto should also be considered confidential and need no publication.
Which brings us to the second part of the majority disposition requiring BOI to allow petitioner to have access to its records.
If BOI did not furnish petitioner with copy of the original application and amendments thereto, it was because it had received a reply from the project proponents "advising us not to release the subject documents in view of the sensitive information contained therein which includes the accumulation of the proponents' business experience and know-how" (Annex "O," Petition). No grave abuse of discretion can be attributed to the BOI, therefore, for not acceding to petitioner's request that he be furnished with copies of the original application with its amendments and attachments (Annex "K," Petition).
Of course, pursuant to Article 81 of the Omnibus Investments Code, the Court, as it does now, can order the BOI to allow petitioner to have access to its records on the original and amended applications for registration.
There seems to be no longer any necessity therefor, however. Attached to public respondent's Opposition is BPC's Position Paper, dated 10 April 1989, wherein BPC discoursed on the significant benefits to be achieved by the transfer and why "using LPG as alternative feedstock will be very advantageous to the project (Annex "2" Opposition) In addition, petitioner already has in his possession: (a) the approval by the BOI of the BPC application for registration, which includes the pre-registration and registration conditions (Annex "A," Petition); (b) the post- registration specific terms and conditions, which the BOI imposed for the project (Annex "B," ibid.); (c) the BPC letter to the BOI requesting approval of the amendment of its investment application for registration for the establishment of a petrochemical complex in the Philippines (Annex "F," ibid.); and (d) the approval by the BOI on 25 May 1989 of the revisions to the project, subject to additional conditions (Annex "S," ibid.). Moreover, in the Supplemental Opposition filed by BPC it has attached a summary of the considerations that guided it in proposing the amendments. Virtually all the data petitioner needs, therefore, are now of record.
The majority ruling also requires the BOI to set for hearing petitioner's opposition to the amended application so that he may present at such hearing all the evidence in his possession in support of his opposition to the transfer of the site of the project to Batangas.
The Omnibus Investments Code, however, does not require the BOI to hold hearings before approving applications for registration or amendments thereto. In fact, hearings would contravene Codal provisions on confidentiality. Article 7, paragraph 4, cited in the majority opinion neither supports the necessity of hearings. It reads:
Art. 7. Powers and Duties of the Board
xxx xxx xxx
(4) After due hearing, decide controversies concerning the implementation of this Code that may arise between registered enterprises or investors therein and government agencies, within thirty (30) days after the controversy has been submitted for decision: ...
In other words, due hearing is required only in connection with controversies between registered enterprises or investors therein and government agencies concerning the implementation of the Omnibus Investments Code. It does not speak at all of a hearing on applications for registration or amendments thereto.
Additionally, Article 34 of the Omnibus Investments Code, in providing that applications not acted upon by the Board within twenty (20) days from official acceptance thereof shall be considered automatically approved implies that a hearing is not at all indispensable in the matter of registration of enterprises. The intention of the law to make BOI proceedings non-adversarial and as expeditious as possible consistent with the Codal policy to encourage investments, is clearly discernible.
Besides, a hearing, as ordained, will serve no practical purpose for petitioner has already fully presented his case, the BOI has given it due consideration and has acted accordingly. This is concretely shown by the following exchange of communications:
(1) In his letter to the Secretary of Trade and lndustry, who is concurrently Chairman of the Board of Investments, petitioner "reiterate(d)" his "most vehement protest against the maneuver to transfer the Bataan Petrochemical project from Bataan to Batangas which, if successful, would greatly prejudice not only the people of Bataan, but more importantly, our country and government" (Annex 'E," Petition);
(2) Petitioner's letter, dated 2 May 1989, to the Secretary of Trade and Industry protested the latter's "official position that 'The final choice (of site) is still with the proponent (the Taiwanese), who would, in the final analysis, provide the funding or risk capital for the project"' (Annex "J," ibid.);
(3) Attached to said communication was petitioner's letter, dated 24 April 1989, addressed to the Senate Committee on Ways and Means giving fourteen (14) reasons why the project should not be transferred to Batangas (Annex "I," ibid.);
(4) The reply-letter of the BOI to petitioner, dated 11 May 1989, took exception to petitioner's claim that the BOI and the DTI, by not vigorously opposing the transfer, had violated the Constitution, the Omnibus Investments Code and P.D. 949 as amended by PD 1803, and urged petitioner not to proceed with his planned court action as it would only serve to "discourage foreign investors and derail efforts at economic recovery" (Annex "M," ibid.);
(5) Petitioner's letter to the BOI of 16 May 1989 rebutted point by point the arguments in the BOI letter of 11 May 1989 and argued that "PD No. 949, as amended by P. D. No. 1803, as well as related issuances, have chosen Bataan as the site of the petrochemical project" (Annex "N," ibid.);
(6) Petitioner's letter to the BOI of 29 May 1989 formalized his "motion for reconsideration of the BOI "decision' approving the transfer of the project from Bataan to Batangas, and contended that President Aquino had set it aside (Annex "P," ibid.);
(7) Petitioner's follow-up letter to the BOI, dated 19 June 1989, claimed that the BOI decision to approve the transfer of the project had, in effect, been reversed by the President herself and that the BOI should "refrain from taking any step to execute said defunct decision" (Annex "Q," ibid.);
(8) In the BOI letter of 21 June 1989 to petitioner, the former denied that there had been a reversal by the President of the BOI decision; and that, as far as petitioner's motion for reconsideration of the BOI decision is concerned, "since you are not submitting any new cause of action for BOI to reconsider its decision, we believe that we have sufficiently answered the questions you have raised in your letter dated 2 May 1989, which has been replied to by the Managing Head of the BOI on 11 May 1989" (Annex "R," ibid.).
All told, there can be no question that petitioner has been fully heard on his original petition to the BOI to disapprove the transfer of the project site and on his motion for reconsideration. No further purpose will be served by setting petitioner's opposition for hearing.
Neither do I think that "affected communities' have a right to be consulted, as opined by the majority. The provision pertinent thereto reads:
Art. 33. Application. — Applications shall be filed with the Board, recorded in a registration book and the date appearing therein and stamped on the application shall be considered the date of official acceptance.
Whenever necessary, the Board, through the People's Economic Councils, shall consult the communities affected on the acceptability of locating the registered enterprise within their community.
In other words, the requirement on consultation is qualified by the phrase "whenever necessary." The clear implication is that the BOI may dispense with such consultations if it believes that it can decide applications for registration by itself without consultation.
In fine, it is my view that the BOI did not commit any grave abuse of discretion in approving the amendments to BPC's application. Nor had it failed to observe due process in approving the same without a formal hearing, petitioner having, in fact, been fully heard. The matter of determining whether the transfer of the plant site and change of feedstock will be best for the project and the country lies with the BOI as the administrative body specifically tasked with such matters. It is well-settled that absent a clear, manifest and grave abuse of discretion amounting to want of jurisdiction, the decision and findings of an administrative agency on matters falling within its competence will not be disturbed by the Courts Sagun vs. People's Homesite and Housing Corp., G.R. No. 44738, June 22, 1988, 162 SCRA 411) as the same fans within that agency's special knowledge and expertise gained by it from handling the specific matters falling under its jurisdiction (Mapa vs. Arroyo et al., G.R. No. 78565, July 5, 1989).
I vote, therefore, for the dismissal of the petition for lack of merit, which dismissal should be immediately executory. The holding of hearings will serve no purpose other than unnecessarily delay the implementation of the Philippines' biggest foreign project, representing a major step towards industrialization. Further delay can only produce a chilling effect on foreign investments in the country.
Separate Opinions
MELENCIO-HERRERA, J., dissenting:
On 17 December 1987, a group of Taiwanese investors, doing business under the name of Bataan Petrochemical Corporation (BPC), filed with the Board of Investments (BOI) an application for registration as a new export producer of petrochemicals. The notice of application was duly published in the Philippine Daily Inquirer on 21 December 1987. The application, as submitted, specified that the amount of the investment for the establishment of a petrochemical complex in the Philippines was $220 million and that the plant was to be located in Bataan using 41 naphta as feedstock.
On 14 January 1988, after compliance with other legal requirements, the BOI approved the application, and issued the corresponding Certificate of Registration on 24 February 1988. BPC was accorded pioneer status and became entitled to the incentives provided for in the Omnibus Investments Code.
In February 1989, BPC sought to amend its application by proposing the change of plant site from Bataan to Batangas and the feedstock from "naphta only" to "naphta and/or LPG," and increasing its investment to $320 million making the project the single biggest foreign investment in the Philippines to date.
On 11 April 1989, BPC formally asked the BOI for approval of the proposed amendments. Petitioner, the legislative representative of the Second District of Bataan, opposed the change of the plant site in a privilege speech before Congress. He also sent letters to the BOI and the Department of Trade and Industry setting forth his objections to the transfer. In a hearing conducted by the Senate Committee on Ways and Means, petitioner appeared and expounded on his position.
On 25 May 1989, the BOI approved the revisions to the registered petrochemical project. Earlier, or on 21 May 1989, citing Article 81 of the Omnibus Investments Code of 1987, the BOI denied petitioner's request for a copy of the revisions submitted by the investors because the latter had declined to give their consent to the disclosure.
On 27 May 1989, a meeting was called by President Aquino in Malacanang to discuss the transfer of the project site. Present at the meeting were BOI officials, the petitioner and the other Congressman from Bataan. Petitioner requested the President to reconsider the BOI decision approving the transfer. On 24 June 1989, the President again called a meeting with the Bataan Congressmen, the Governor, and the Mayors of the province. She asked the Bataan officials to withdraw their objections to the transfer of the plant site to Batangas, lest the investors pack up and leave for, after all, Batangas is also in the Philippines and some of the "downstream" industries which would spring from a petrochemical complex may later be located in Bataan. The Bataan officials agreed to drop their objections, except for petitioner who instituted this Petition for certiorari and Prohibition before this Court (p. 11, Opposition by public respondents).
In his Petition, petitioner alleges that the BOI committed grave abuse of discretion and denied him due process when it approved, without a hearing, the amendments to the registration of the BPC petrochemical project; when it denied petitioner's request for a copy of the amendments; and when it approved the change of the plant site and feedstock of the plant.
As stated in the majority opinion, the Court is not concerned with the economic, social and political aspects of the case.
In ruling in favor of petitioner, the majority faults the BOI with grave abuse of discretion and has ordered it (1) to publish the amended application for registration; (2) to allow petitioner to have access to its records on the original and amended applications for registration, excluding trade secrets; and (3) to set for hearing petitioner's opposition to the amended application.
With all due respect, I find no grave abuse of discretion on the part of BOI, nor denial by it to petitioner of due process.
As regards publication, Article 54 of the Omnibus Investments Code provides:
Art. 54. Publication and Posting of Notices. — Immediately after the application has been given due course by the Board, the Secretary of the Board or any official designated by the Board shall require the applicant to publish the notice of the action of the Board thereon at his expense once in a newspaper of general circulation in the province or city where the applicant has its principal office, and post copies of said notice in conspicuous places, in the once of the Board or in the building where said office is located; setting forth in such copies the name of the applicant, the business in which it is engaged or proposes to engage or invest, and such other data and information as may be required by the Board. No approval or certificate shall be valid without the publication and posting of notices as herein provided. (Italics supplied)
Clearly, it is not the application itself that is required to be published but notice of the action of the Board plus the specified data. Thus, the Notice of Publication, which appeared in the Inquirer, simply read:
Notice is hereby given that the application of BATAAN PETROCHEMICAL CORPORATION ... for registration with the Board of Investments under Book I of the Omnibus Investment Code of 1987, otherwise known as Executive Order No. 226 as new export producer of ethylene, polyethylene and polypropylene has been officially accepted on December 17, 1987 and is currently being processed.
Any person with valid objections to or pertinent comments on the above-mentioned application may file his/her comments/objections in writing with the BOI within one (1) week from the date of this publication.
Let this notice be published at the expense of the applicant
... (Annex "1," Opposition).
Absent the requirement of publication of the application itself, there should be no need either to publish the amendments to the application. The statement in the majority opinion that the amended application is considered a new application does not find support in the Omnibus Investments Code. After all the amendment did not change the essence or nature of the petrochemical project but only the site, and the feedstock.
Specially significant, too, is the fact that the confidentiality of applications is specifically provided for in the Omnibus Investments Code. Thus:
Art. 81. Confidentiality of Applications. — All applications and their supporting documents filed under this Code shall be confidential and shall not be disclosed to any person, except with the consent of the applicant or on orders of a court of competent jurisdiction.
Considering that all applications and their supporting documents are confidential and are not to be disclosed to any person, it follows that amendments thereto should also be considered confidential and need no publication.
Which brings us to the second part of the majority disposition requiring BOI to allow petitioner to have access to its records.
If BOI did not furnish petitioner with copy of the original application and amendments thereto, it was because it had received a reply from the project proponents "advising us not to release the subject documents in view of the sensitive information contained therein which includes the accumulation of the proponents' business experience and know-how" (Annex "O," Petition). No grave abuse of discretion can be attributed to the BOI, therefore, for not acceding to petitioner's request that he be furnished with copies of the original application with its amendments and attachments (Annex "K," Petition).
Of course, pursuant to Article 81 of the Omnibus Investments Code, the Court, as it does now, can order the BOI to allow petitioner to have access to its records on the original and amended applications for registration.
There seems to be no longer any necessity therefor, however. Attached to public respondent's Opposition is BPC's Position Paper, dated 10 April 1989, wherein BPC discoursed on the significant benefits to be achieved by the transfer and why "using LPG as alternative feedstock will be very advantageous to the project (Annex "2" Opposition) In addition, petitioner already has in his possession: (a) the approval by the BOI of the BPC application for registration, which includes the pre-registration and registration conditions (Annex "A," Petition); (b) the post- registration specific terms and conditions, which the BOI imposed for the project (Annex "B," ibid.); (c) the BPC letter to the BOI requesting approval of the amendment of its investment application for registration for the establishment of a petrochemical complex in the Philippines (Annex "F," ibid.); and (d) the approval by the BOI on 25 May 1989 of the revisions to the project, subject to additional conditions (Annex "S," ibid.). Moreover, in the Supplemental Opposition filed by BPC it has attached a summary of the considerations that guided it in proposing the amendments. Virtually all the data petitioner needs, therefore, are now of record.
The majority ruling also requires the BOI to set for hearing petitioner's opposition to the amended application so that he may present at such hearing all the evidence in his possession in support of his opposition to the transfer of the site of the project to Batangas.
The Omnibus Investments Code, however, does not require the BOI to hold hearings before approving applications for registration or amendments thereto. In fact, hearings would contravene Codal provisions on confidentiality. Article 7, paragraph 4, cited in the majority opinion neither supports the necessity of hearings. It reads:
Art. 7. Powers and Duties of the Board
xxx xxx xxx
(4) After due hearing, decide controversies concerning the implementation of this Code that may arise between registered enterprises or investors therein and government agencies, within thirty (30) days after the controversy has been submitted for decision: ...
In other words, due hearing is required only in connection with controversies between registered enterprises or investors therein and government agencies concerning the implementation of the Omnibus Investments Code. It does not speak at all of a hearing on applications for registration or amendments thereto.
Additionally, Article 34 of the Omnibus Investments Code, in providing that applications not acted upon by the Board within twenty (20) days from official acceptance thereof shall be considered automatically approved implies that a hearing is not at all indispensable in the matter of registration of enterprises. The intention of the law to make BOI proceedings non-adversarial and as expeditious as possible consistent with the Codal policy to encourage investments, is clearly discernible.
Besides, a hearing, as ordained, will serve no practical purpose for petitioner has already fully presented his case, the BOI has given it due consideration and has acted accordingly. This is concretely shown by the following exchange of communications:
(1) In his letter to the Secretary of Trade and lndustry, who is concurrently Chairman of the Board of Investments, petitioner "reiterate(d)" his "most vehement protest against the maneuver to transfer the Bataan Petrochemical project from Bataan to Batangas which, if successful, would greatly prejudice not only the people of Bataan, but more importantly, our country and government" (Annex 'E," Petition);
(2) Petitioner's letter, dated 2 May 1989, to the Secretary of Trade and Industry protested the latter's "official position that 'The final choice (of site) is still with the proponent (the Taiwanese), who would, in the final analysis, provide the funding or risk capital for the project"' (Annex "J," ibid.);
(3) Attached to said communication was petitioner's letter, dated 24 April 1989, addressed to the Senate Committee on Ways and Means giving fourteen (14) reasons why the project should not be transferred to Batangas (Annex "I," ibid.);
(4) The reply-letter of the BOI to petitioner, dated 11 May 1989, took exception to petitioner's claim that the BOI and the DTI, by not vigorously opposing the transfer, had violated the Constitution, the Omnibus Investments Code and P.D. 949 as amended by PD 1803, and urged petitioner not to proceed with his planned court action as it would only serve to "discourage foreign investors and derail efforts at economic recovery" (Annex "M," ibid.);
(5) Petitioner's letter to the BOI of 16 May 1989 rebutted point by point the arguments in the BOI letter of 11 May 1989 and argued that "PD No. 949, as amended by P. D. No. 1803, as well as related issuances, have chosen Bataan as the site of the petrochemical project" (Annex "N," ibid.);
(6) Petitioner's letter to the BOI of 29 May 1989 formalized his "motion for reconsideration of the BOI "decision' approving the transfer of the project from Bataan to Batangas, and contended that President Aquino had set it aside (Annex "P," ibid.);
(7) Petitioner's follow-up letter to the BOI, dated 19 June 1989, claimed that the BOI decision to approve the transfer of the project had, in effect, been reversed by the President herself and that the BOI should "refrain from taking any step to execute said defunct decision" (Annex "Q," ibid.);
(8) In the BOI letter of 21 June 1989 to petitioner, the former denied that there had been a reversal by the President of the BOI decision; and that, as far as petitioner's motion for reconsideration of the BOI decision is concerned, "since you are not submitting any new cause of action for BOI to reconsider its decision, we believe that we have sufficiently answered the questions you have raised in your letter dated 2 May 1989, which has been replied to by the Managing Head of the BOI on 11 May 1989" (Annex "R," ibid.).
All told, there can be no question that petitioner has been fully heard on his original petition to the BOI to disapprove the transfer of the project site and on his motion for reconsideration. No further purpose will be served by setting petitioner's opposition for hearing.
Neither do I think that "affected communities' have a right to be consulted, as opined by the majority. The provision pertinent thereto reads:
Art. 33. Application. — Applications shall be filed with the Board, recorded in a registration book and the date appearing therein and stamped on the application shall be considered the date of official acceptance.
Whenever necessary, the Board, through the People's Economic Councils, shall consult the communities affected on the acceptability of locating the registered enterprise within their community.
In other words, the requirement on consultation is qualified by the phrase "whenever necessary." The clear implication is that the BOI may dispense with such consultations if it believes that it can decide applications for registration by itself without consultation.
In fine, it is my view that the BOI did not commit any grave abuse of discretion in approving the amendments to BPC's application. Nor had it failed to observe due process in approving the same without a formal hearing, petitioner having, in fact, been fully heard. The matter of determining whether the transfer of the plant site and change of feedstock will be best for the project and the country lies with the BOI as the administrative body specifically tasked with such matters. It is well-settled that absent a clear, manifest and grave abuse of discretion amounting to want of jurisdiction, the decision and findings of an administrative agency on matters falling within its competence will not be disturbed by the Courts Sagun vs. People's Homesite and Housing Corp., G.R. No. 44738, June 22, 1988, 162 SCRA 411) as the same fans within that agency's special knowledge and expertise gained by it from handling the specific matters falling under its jurisdiction (Mapa vs. Arroyo et al., G.R. No. 78565, July 5, 1989).
I vote, therefore, for the dismissal of the petition for lack of merit, which dismissal should be immediately executory. The holding of hearings will serve no purpose other than unnecessarily delay the implementation of the Philippines' biggest foreign project, representing a major step towards industrialization. Further delay can only produce a chilling effect on foreign investments in the country.
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