G.R. No. 211146 - Concurring Opinion

G.R. No. 211146, April 11, 2023,
♦ Decision, J Lopez, [J]
♦ Concurring Opinion, Singh, [J]
♦ Concurring Opinion, Lazaro-Javier, [J]
♦ Dissenting Opinion, Caguioa, [J]
♦ Concurring Opinion, Leonen, [J]

SECRETARY PROCESO J. ALCALA, AS SECRETARY OF THE DEPARTMENT OF AGRICULTURE, AND AS CHAIRMAN OF THE NATIONAL FOOD AUTHORITY COUNCIL, AND THE BUREAU OF CUSTOMS, REPRESENTED BY COMMISSIONER JOHN PHILLIP P. SEVILLA, PETITIONERS, VS. HONORABLE JUDGE CICERO D. JURADO, JR., IN HIS CAPACITY AS PRESIDING JUDGE OF BRANCH 11, REGIONAL TRIAL COURT IN MANILA, DANILO G. GALANG, DOING BUSINESS UNDER THE NAME AND STYLE ST. HILDEGARD GRAINS ENTERPRISES, AND IVY M. SOUZA, DOING BUSINESS UNDER THE NAME AND STYLE BOLD BIDDER MARKETING AND GENERAL MERCHANDISE, RESPONDENT.

These consolidated Petitions for Certiorari with prayer for injunction assail the Orders issued by respondents Regional Trial Court Judges Emmanuel Carpio (Judge Carpio) and Cicero Jurado (Judge Jurado) enjoining the District Collectors from seizing, holding, and detaining the rice shipments of private respondents Joseph Ngo (Ngo) and Danilo Galang (Galang) due to lack of import license from the National Food Authority (NFA).

As a member of the World Trade Organization (WTO),1 the Philippines obtained its first concession or special treatment for rice. A special treatment or concession means that the country may impose trade restrictions as exemption from its free trade commitments in the global agricultural market. The first concession expired on December 31, 2004 but was extended to July 30, 2012. This extension was the country's second concession. Pursuant to paragraph 5.1 of the second concession, "any continuation of special treatment for rice shall be contingent on the outcome of the Doha Development Agenda (DDA) negotiations."

On March 20, 2012, the Philippines submitted a Request for Waiver on Special Treatment for Rice. This in effect sought a third concession which was proposed to expire on June 30, 2017.

Meantime, on March 22, 2013, pursuant to Republic Act No. 8178 (1996) and Presidential Decree No. 4 (1972), the NFA issued Memorandum Circular (M.C.) No. AO-2K13-03-003 which (a) set a quota of 163,000 metric tons of rice imports from specified source countries for 2013; (b) provided guidelines by which NFA-licensed importers may apply when importing rice; and (c) indicated the requisites for the issuance of Certificate of Eligibility to import.

On December 5, 2013, private respondent Ngo filed a complaint for permanent injunction with prayer for temporary restraining order and/or preliminary injunction docketed as Civil Case No. 35,354-2013 against the District Collector of the Port of Davao for alleged unlawful seizure of his rice shipments due to lack of import license as required under M.C. No. AO-2K13-03-003. The case was then raffled to Judge Carpio.

On January 14, 2014, private respondent Galang filed a similar complaint docketed as Civil Case No. CV-14-131261 with the same allegations and prayer as those of Ngo. The case was raffled to Judge Jurado.

Judge Carpio and Judge Jurado ruled in favor of Ngo and Galang, respectively, and ordered the issuance of a writ of preliminary injunction, viz.:

On July 24, 2014, or pending these certiorari proceedings, the WTO released a Decision allowing a third concession effective until June 30, 2017.

I thank my good friend the esteemed Associate Justice Jhosep Y. Lopez for now taking a position consistent with my position to dissolve the writs of injunction granted by Judges Carpio and Jurado in Civil Case Nos. 35,354-2013, and CV-14-131261, respectively. At the outset, Justice Lopez emphasized that private respondents Ngo and Galang failed to establish a right in esse to engage in the importation of rice, the first element for the issuance of an injunction. Judges Caipio and Jurado, therefore, committed grave abuse of discretion when they issued the subject writs of injunction.2

May I, nonetheless, humbly add to the discussion why respondent Judges committed grave abuse of discretion when they granted injunctive relief relative to the subject rice importations.

Private respondents had no clear and unmistakable legal right that would have warranted protection by preliminary injunction

Though not articulated in the draft ponencia, there were 189,5403 bags of rice that arrived at the Port of Manila in 2013 without proper documents. To echo the draft ponencia, Ngo and Galang possessed no clear and unmistakable legal rights over these undocumented rice shipments that would have merited protection via the courts' writs of preliminary injunction.4

In Ocampo v. Sison,5 the Court held that to be entitled to the injunctive writ, the applicant must show that there exists a right to be protected which must be clear and unmistakable. Where the applicant's right or title is doubtful or disputed, injunction is not proper. The Court further elucidated, viz.:

In the absence of a clear legal right, the issuance of the writ constitutes grave abuse of discretion. Where the applicant's right or title is doubtful or disputed, injunction is not proper. The possibility of irreparable damage without proof of an actual existing right is not a ground for injunction.

A clear and positive right especially calling for judicial protection must be shown. Injunction is not a remedy to protect or enforce contingent, abstract, or future rights; it will not issue to protect a right not in esse and which may never arise, or to restrain an act which does not give rise to a cause of action. There must exist an actual right. There must be a patent showing by the applicant that there exists a right to be protected and that the acts against which the writ is to be directed are violative of said right. (Emphasis and underscoring supplied)

Sumifru Philippines Corp. v. Spouses Cereño6 discussed the concept of a clear and unmistakable right that could be protected by a writ of preliminary injunction, thus:

A writ of preliminary injunction, being an extraordinary event, one deemed as a strong arm of equity or a transcendent remedy, must be granted only in the face of injury to actual and existing substantial rights. A right to be protected by injunction means a right clearly founded on or granted by law or is enforceable as a matter of law. An injunction is not a remedy to protect or enforce contingent, abstract, or future rights; it will not issue to protect a right not in esse, and which may never arise, or to restrain an act which does not give rise to a cause of action. When the complainant's right is doubtful or disputed, he does not have a clear legal right and, therefore, injunction is not proper. While it is not required that the right claimed by the applicant, as basis for seeking injunctive relief, be conclusively established, it is still necessary to show, at least tentatively, that the right exists and is not vitiated by any substantial challenge or contradiction. (Emphasis supplied)

The Court cannot act contrary to the exercise of the exclusive authority of the President and his subalterns at the Department of Foreign Affairs to conduct and determine the outcome of the country's foreign relations, including their interpretation of international instruments in the course of such exclusive authority.

The conduct and outcome of international relations have always been part and parcel of the President's residual or prerogative powers since time immemorial, which has also been codified in Book IV, Title I, Chapter 1, Sections 1 to 3 of the Administrative Code of 1987 as amended.

Residual or prerogative powers are those unspoken powers but exist as a matter of national survival. As held in Marcos v. Manglapus:7

To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights of certain individuals. The power involved is die President's residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [see Hyman, The American President, where the author advances the view that an allowance of discretionary power is unavoidable in any government and is best lodged in the President].

More particularly, this case calls for the exercise of the President's powers as protector of the peace. [Rossiter, The American Presidency], The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the President's exercising as Commander-in-Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security. (Emphasis supplied)

The President's prerogative consists of the residue of miscellaneous powers, rights, privileges, immunities, and duties accepted under our law as vested in and exercised by him or her, including his or her subalterns. The prerogative power is subject to the doctrine of constitutional supremacy, and to a certain degree, Congress, by statute, may regulate the exercise of this power. It has also been codified in Section 20, Chapter 7, Title I, Book III of the Administrative Code of 1987 which expresses it in this manner:

Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law.

The President's power in dealing with international relations is plenary in the sense that only express limitations circumscribe this power. This legal principle is too basic to be ignored. Its latest iteration in Esmero v. Duterte8 did not diminish its nature as a legal doctrine:

Hence, when the President and his subalterns asked for the extension of the rice concession, they in effect were imposing the rules to be followed so far as the country's participation in the international regimes of the World Trade Organization and the Agreement of Agriculture ought to be. That these were in fact the rules of international law to which we as a country were bound in the course of conducting foreign relations was confirmed and made definite and categorical by the domestic laws then in place, namely, Memorandum Circular (M.C.) No. AO-2K13-03-003, Republic Act No. 8178 and Presidential Decree 4, as amended, which all support the concession for the imposition of quantitative restrictions then being requested. As we held in Esmero:

If President Duterte now sees fit to take a different approach with China despite said ruling, this does not by itself mean that he has, as petitioner suggests, unlawfully abdicated his duty to protect and defend our national territory, correctible with the issuance by this Court of the extraordinary writ of mandamus. Being the Head of State, he is free to use his own discretion in this matter, accountable only to his country in his political character and to his own conscience.

Ultimately, the decision of how best to address our disputes with China (be it militarily, diplomatically, legally) rests on the political branches of government. While we are loath to give a "blank check" especially where the risk of grave abuse of discretion may be high, we cannot have an "entrammeled executive" who will be ill-equipped to face the "amorphous threat[s] and perpetrators whose malign intent may be impossible to know until they strike." The Constitution vests executive power, which includes the duty to execute the law, protect the Philippines, and conduct foreign affairs, in the President – not this Court. Barring violations of the limits provided by law and the Constitution, we should take care not to substitute our exercise of discretion for his. As "the branch that knows least about the national security concerns that the subject entails," we cannot, in the words of Justice Scalia, just simply "blunder in." (Emphasis supplied)

The legalization of international relations did not give rise to supranational institutions of law and order that operates over and above traditional state apparatuses of law and justice. International law remains for the greater part; to be a matter of soft law.9 Traditionally, investment rules or agreements amongst states were enforced through diplomacy and parley. States would pursue the causes and cases of its nationals.10 While convenience and deficiencies in diplomatic procedures resulted in the evolution of commissions allowing for direct investor participation and the system of investment arbitration is now widespread, and thus, standing is provided to a state's investors, nonetheless, the obligations enforced continue to be those of the states themselves which are parties to the international agreements entered into.11 This means that the evolution of even well-defined rules and clear-cut modes of enforcement did not supersede the real politik of international relations where diplomacy and parley, the self-serving interests of states, and the hierarchy of world order determined how states should behave and what international rules governed.12

As one article puts it, "[c]ontemporary international relations are legalized to an impressive extent, yet international legalization displays great variety. A few international institutions and issue areas approach the theoretical ideal of hard legalization, but most international law is 'soft' in distinctive ways."13

Executive Order No. 459 (1997), Providing for the Guidelines in the Negotiation of International Agreements and its Ratification, has categorically identified the talking heads and thinking minds when dealing with international law as soft law. Executive Order No. 459 mandates:

Clearly, when we talk about international law that is developed through negotiations and parleys, the talking heads and thinking minds are the President and his or her subalterns.

It is therefore easy to discern why the domestic courts of states, including the highest courts of their lands, are not expert purveyors of what international law is and what it means, when the interpretations of international law arise in the context of the conduct of foreign relations and the determination of their outcomes vis-à-vis other states and international organizations. In this situation, we are not experts in discovering and discerning the mold of international law. This is especially true in areas where, as in the request for rice concessions under the Agreement on Agriculture, diplomacy and parley remain to be the accurate measure of outcomes.

Hence, in situations where international negotiations are taking place or where the Executive Branch is pre-occupied with parallel involvement in foreign relations, Pangilinan v. Cayetano14 correctly cautioned:

In any case, this Court has no competence to interpret with finality – let alone bind the International Criminal Court, the Assembly of States Parties, individual state parties, and the entire international community – what this provision means, and conclude that undoing a withdrawal is viable. In the face of how the Rome Statute enables withdrawal but does not contemplate the undoing of a withdrawal, this Court cannot compel external recognition of any prospective undoing which it shall order. To do so could even mean courting international embarrassment.

Just the same, any such potential embarrassment or other unpalatable consequences are risks that we, as a country, are willing to take is better left to those tasked with crafting foreign policy. (Emphasis supplied)

As explained elsewhere,15 echoing the principle expressed in Esmero and Pangilinan as stressed above:

This is not to say that our courts are forever unskilled at interpreting international law. As again explained elsewhere,16 local courts may interpret international law in the following instances:

But the orders of Judge Carpio and Judge Jurado do not fall within the circumstances contemplated by the exceptions. They are clearly out-of-step with the legal doctrine that textually commits foreign relations exclusively to the President and his or her subalterns. The right which these assailed orders have recognized to be allegedly clear and unmistakable crumbles in the face of the fact that the architects of the country's foreign affairs have not at any instance endorsed it in the course of their exercise of this exclusive power.

In other words, there is no clear and unmistakable right to import rice without restrictions and sans license because by seeking to negotiate for another rice concession in the international domain, the President and his subalterns in the foreign affairs department have refused to accept it (or at least have ignored it) as a rule of international law.1aшphi1

The Court cannot second guess the wisdom of the President and his subalterns on this matter since it falls within their exclusive domain to determine. This is the rule that they have the power to impose as it is part and parcel of the conduct and outcome of international relations.

The absence of clear and unmistakable legal right on the part of private respondents is the law of the case.

Notably, in its Resolution dated April 22, 2014, the Court already denied the respective Motions and/or Manifestations for the Release of Perishable Goods of Ngo and Galang. Subsequently, the Court denied their reconsideration per Resolution dated June 23, 2015 emphasizing that "private respondents had not even clearly shown their legal right to the rice shipments."17 The ponencia has admitted this important fact when it also mentioned:

xxx private respondents' brazen act of importation without a permit during the gap of the second concession's expiry and the grant for the third concession was clearly a gamble that they made at their own risk.18

The absence of clear and unmistakable legal right on the part of private respondents is already therefore the law of the case in the present matter.

In Philippine Ports Authority v. Nasipit Integrated Arrastre and Stevedoring Services Inc.,19 the Court explained the legal principle of the law of the case:

Here, the Court has ruled with finality that the respondent judges' preliminary injunction cannot be given effect since private respondents had no clear and unmistakable legal right. Hence, this declaration ought to bind us so far as this element matters.

By way of resolution, the Court should not only reiterate that private respondents have no clear and legal right to be protected by the writs of preliminary injunction issued by the respondent judges but must also dismiss the actions below for lack of cause of action.

The absence of a clear and unmistakable legal right on the part of private respondents has already been resolved by the Court when it granted the preliminary injunction prayed for by petitioners. The Court was definite and categorical that private respondents were unable to show this character to their alleged legal right to benefit from preliminary injunction. I commend Justice Lopez for reiterating this point in his ponencia as it is now the law of the case.

But more important, the Court must already declare the absence of any right on the part of the private respondents to import rice without license from the NFA. Hence, their actions utterly lack a cause of action and must therefore be dismissed. These resolutions necessarily arise from the legal doctrines discussed above.

The President and his subalterns were negotiating for quantitative restrictions for rice importations. This was the rule of international law to which the country, including the Court, was bound to recognize and abide by. This is because their exclusive power in this regard is exclusive and the outcomes of the exercise of this power are unquestionable. No one can summon them to our courts to compel them to reverse or retract their negotiating positions. Further, as also keenly noted above, international law cannot trump domestic laws, which here were then Republic Act No. 8178 (1996), Presidential Decree 4 (1972) and Memorandum Circular (M.C.) No. AO-2K13-03-003. Private respondents cannot find a cause of action on the basis of allegations and conclusions that are contrary to our domestic laws, though they anchor the same upon international law, the existence and relevance of which anyway are absolutely disputed.

In any event, private respondents are technically not without any remedy. Under international law, a wronged investor could seek the intervention of its state to protect its interests. The state, if it so desires, could then espouse the investor's claim under the principle of "diplomatic protection." This principle is part of customary international law. When a national is injured by an act contrary to international law, the state itself is injured. The concept is that an investor, or the investment, carries with it a little piece of the sovereign. So that injury to an investor or their property, if unremedied, is an injury to the state of that investor, or the sending state of the investment.

In the present case, the WTO and the Agreement on Agriculture has ordained that Articles XXII and XXIII of the General Agreement on Tariffs and Trade (GATT) of 1994 shall apply, thus:

The mechanism involving dispute settlement covers consultations where WTO Members other than the consulting parties are informed in writing of requests for consultations, and any Member that has a substantial trade interest in consultations may request to join in the consultations as a third party.22 When the Dispute Settlement Body has ruled that a provision of GATT 1994 has not been observed, the responsible Member-State shall take such reasonable measures as may be available to ensure its observance.23 It is now up to private respondents to locate a Member willing to take up the cudgels for them.

Finally, records show that the tariffs and taxes over the rice shipments were only paid upon filing of the complaint in 2013 insofar as respondent Ngo is concerned.24 Indeed, the Court cannot simply turn a blind eye to the shortcomings of private respondents, nor coddle the perpetuation of rampant smuggling of rice which continues to threaten the livelihood of millions of local rice farmers in the country. This is another ground for the Court to dismiss outright the actions below for utter lack of cause of action.

ACCORDINGLY, I vote to grant the petition, nullify the assailed orders of respondent judges, make the injunction granted by the Court permanent, and finally, order the dismissal of Civil Case No. 35,354-2013 and Civil Case No. CV-14-131261.