G.R. No. 182734 - Dissenting Opinion

G.R. No. 182734, January 10,2023,
♦ Decision, Gaerlan, [J]
♦ Separate Concurring Opinion, Gesmundo, [CJ]
♦ Concurring Opinion, Leonen, [J]
♦ Dissenting Opinion, Lazaro-Javier, [J]
♦ Dissenting Opinion, Zalameda, [J]

BAYAN MUNA PARTY-LIST REPRESENTATIVES SATUR C. OCAMPO AND TEODORO A. CASIÑO, ANAKPAWIS REPRESENTATIVE CRISPIN B. BELTRAN, GABRIELA WOMEN'S PARTY REPRESENTATIVES LIZA L. MAZA AND LUZVIMINDA C. ILAGAN, REP. LORENZO R. TAÑADA III, AND REP. TEOFISTO L. GUINGONA III, PETITIONERS, VS. PRESIDENT GLORIA MACAPAGAL-ARROYO, EXECUTIVE SECRETARY EDUARDO R. ERMITA, SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, SECRETARY OF THE DEPARTMENT OF ENERGY, PHILIPPINE NATIONAL OIL COMPANY, AND PHILIPPINE NATIONAL OIL COMPANY EXPLORATION CORPORATION, RESPONDENTS.

On March 14, 2005, the Philippine National Oil Company (PNOC) executed the Tripartite Agreement for Joint Marine Seismic Undertaking (JMSU) in the Agreement Area in the South China Sea with China National Offshore Oil Corporation (CNOOC) and Vietnam Oil and Gas Corporation (PETROVIETNAM).

PNOC is the national oil company of the Republic of the Philippines. CNOOC is the state-owned oil company of the People's Republic of China. PETROVIETNAM is the state-owned oil company of the Socialist Republic of Vietnam.

The JMSU recognized that the sovereign states were the true parties in interest when it required the approval of the named parties' respective governments before it could even be effective and binding. Thus, according to the ponencia, citing the petition and its reference to Article 11.6 of the JMSU:

Nevertheless, the last clause of the JMSU states that it shall not be binding on the Parties should any party fail to obtain its government's approval within three months after the date on which it is signed. The latest date of the approvals shall be the effective date of the JMSU, while the date of the commencement of its implementation shall be the first day of the month following its effectivity.

The ultimate results of the JMSU were "documents, information, data, and reports with respect to the joint marine seismic undertaking." As to these outcomes, the parties were bound by a confidential agreement which provided that outcomes would not be disclosed by any of them to any other party absent of their unanimous written consent.

The JMSU itself contained a confidentiality clause that prevented its disclosure. Hence, the ponencia could only surmise, as explained by the prefatory use of the word "allegedly" in the following narration:

Allegedly, on June 5, 2005, then Department of Energy (DOE) Secretary Raphael P.M. Lotilla issued a six-month term permit (first permit) to the PNOC Exploration Corporation (PNOC-EC), the assignee of the PNOC under Article 9.1 of the JMSU. This permit constituted the Philippine Government's approval of the JMSU. On July 1, 2005, the JMSU commenced to be implemented for the Agreement Term or until July 1, 2008. On December 10, 2005, the first permit expired. On October 4, 2007, the DOE allegedly issued another permit for a six-month term (second permit).

There is no certified copy of the JMSU on record. Hence, it is also admitted that the location of the JMSU activities has not been established with certainty. The ponencia proceeded though:

For sure, we cannot assume facts not in evidence. We cannot assist petitioners' case to meet. The Court after all is an impartial arbiter.£A⩊phi£ There are unanswered questions of fact that in turn depended upon answers to prejudicial questions of law. What we have is an incomplete case record to which we cannot supply the facts to be able to come out with a judgment.

But this is the natural outcome when we constantly push institutions to bend to politics. We care only about results. We dismiss underlying legal principles as technicalities, as malleable and negotiable, at least for our side.... But law must mean what it says, not be perpetually open to loopholes. It must be stable and predictable, or it cannot serve its purpose.... Are we willing to be loyal to law itself above the political fray, to rebuke legal vigilantism using outlandish cases, even the ones that suit us? If not, Sisyphus' lament is that we cannot protest how laws are never followed. Law ultimately draws strength not from intellect, but from society's conviction.1

As in Sisyphus' lament, my first issue with the ponencia is fundamental. Petitioners bear the burden of proving facts. This Court does not unearth the facts for them. Much less should we supply the facts to give substance to their petition. We cannot overcome the weaknesses of our legal system unless we learn to abide by the rules that are there in the first place to govern us.

Here, there are unmistakable questions of fact. This is the situation because respondents invoke the confidentiality of the entirety of the JMSU. Right or wrong, this invocation does not relieve petitioners of their burden to challenge this claim of privilege by invoking discovery and the subpoena power of our courts. Only then, when petitioners have hurdled the claim of privilege, they can have their true copy of the JMSU, with all its verified contents (both text and annexes) and circumstances of execution if at all, and for the Court, the facts at its doorstep, to be able to resolve the transcendental issues of the day.

But as it is, we do not have the facts - the JMSU itself and its circumstances. Because petitioners chose to go directly to this Court. Where could they have gone? The obvious answer is the court where subpoenas are applied for - the trial courts. Of course, we may also deign to issue the subpoenas, but must we?

We are not triers of facts. If we give petitioners this benefit today, should we not also accord the same preferential attention to others? The Court's lifeline is built on precedents. This is a rule both of procedure and substance. We follow precedents because it provides stability and equality to all. That is why, this Court and the other courts should not simply cave in to claims for exceptions.

We must also not decide cases on the basis of online news articles and hearsay (i.e., out-of-court, unauthenticated) statements that favor only petitioners. Unfortunately, the ponencia hinged its facts on them too.

The doctrine of hierarchy of courts exists precisely to filter those cases that must first pass the trial courts where the evidentiary record and findings are completed. This is because:

... direct recourse to this Court is allowed only to resolve questions of law, notwithstanding the invocation of paramount or transcendental importance of the action. This doctrine is not mere policy, rather, it is a constitutional filtering mechanism designed to enable the Court to focus on the more fundamental and essential tasks assigned to it by the highest law of the land.2

We cannot supply the facts, and worse, without evidence. This procedure goes against the fabric of the Comi's constitution as an impartial tribunal. We cannot accept as facts if allegedly they merely appear to be the facts. We cannot accept allegations as facts as a result of respondents' silence, even if their silence is due to their claim of privilege.

The JMSU had expired on June 30, 2008. The text of this agreement is gone. There are no lingering circumstances that bother anyone of us. Truly, we do not even know if the JMSU was ever implemented at all. It is unknown if our country, the Socialist Republic of Vietnam, and the People's Republic of China, or their respective factotums, would ever enter into and execute another JMSU in the future.

Clearly, these circumstances disqualify this case from the exceptions to the doctrine of mootness:

At present, courts will decide cases, otherwise moot and academic, if it feels that: (a) there is a grave violation of the Constitution; (b) the situation is of exceptional character and paramount public interest is involved; (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and (d) the case is capable ofrepetition yet evading review.3

For us to conclude that there is a grave violation of the Constitution, there must be prima facie evidence of the existence of this grave violation, the nature of this grave violation, the continuing state of this grave violation, and the nexus between the assailed official act and the grave violation. Unfortunately, for the reasons already mentioned, the Court does not have a true copy of the JMSU and its places of execution, and does not know the circumstances of its implementation. With the JMSU's expiration, is the Constitution still being violated? Obviously, we cannot conclude that it is because there are no facts to base this conclusion on.

Neither can we say that "the situation is of exceptional character and paramount public interest is involved." To be sure, it is the JMSU's exceptional character as a result of what it allegedly represents that should compel this Court simply to dismiss this case. If we are to believe as facts the narration in the ponencia, this is because the JMSU is meant to be:

... an expression of the Parties' commitment "to pursue efforts to transform the South China Sea into an area of peace, stability, cooperation, and development." Consequently, the Parties' desire "to engage in a joint research of petroleum resource potential of a certain area of the South China Sea as a pre-exploration activity."

The mootness doctrine allows the Court to by-pass the very difficult route of deciding this case that would definitely impact adversely upon the country's foreign relations posturing. By leaving the constitutional issue undecided, again assuming the ponencia 's narration represents the facts, we give our public officers that flexibility and ability to deal with our country's foreign relations in accordance with our paramount public interests as they unfold and without embarrassing them with the blot that what they did was unconstitutional. In other words, there is valor in prudence at this time when it is not even necessary to paint ourselves to a corner.

The third exception - the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public - does not apply. We are not required as of now to formulate any controlling principles for two reasons: (i) the facts have not been established as all we have are speculations based on an online article, a hearsay statement, and the admission by silence though due to a claim of privilege; and (ii) respondents are content with the present state of the law and there is no clamor for such controlling principles. If at all, the clamor is for respectful and dignified unity and peace with other countries, which the Court is simply not competent to achieve.

The capable of repetition yet evading review exception has two elements: (1) the duration of the challenged action must be too short to be fully litigated prior to its cessation or expiration; and (2) there must be reasonable expectation that the same complaining party will be subjected to the same action again.

It is admitted that the JMSU was short-lived - a fact that clearly calls for restraint and prudence on our part. Still, petitioners have not shown that respondents have in the pipeline another JMSU to be entered into and implemented. All that the ponencia refers to is the potential or possibility of another JMSU coming into existence. The standard is not potential or possibility. Everything is a potential or a possibility in life. This is an unworkable standard. Rather, the burden is to show a reasonable expectation. Reason requires a basis. We cannot simply speculate that another JMSU is coming. Petitioners have to show facts and circumstances, not merely allege them.

Overall, petitioner cannot literally repeat the wordings of the exceptions without explaining how each of them is present. It cannot merely ask the Court to accept what in the first place should be proved; especially for a case of unforeseeable consequences both here and abroad, and not just abroad but to our ticklish relations with rivals where armed conflict is a factor.

With the foregoing exigent bases for resolving the present case, the constitutional issue posed by petitioners sorely lacks the requisite peg of lis mota to stand on.

The clear and impeccable grounds to decide this case are hierarchy of courts and mootness. The case can be resolved on these grounds. Therefore, the constitutionality of the JMSU is not triggered.

4. Characterization of the instant case as a predominantly foreign relations matter rather than an issue of exploration, development, and utilization of natural resources

Nonetheless, if we have to decide this case on the merits, with due respect, I still cannot subscribe to the ponencia.

I preface this discussion with the assumption that the narration in ponencia states the correct facts of this case.

With this, I respectfully disagree with the ponencia's characterization of the instant case as one falling solely under Section 2, Article XII of the Constitution on the exploration, development, and utilization of the country's natural resources. Rather, to me, the issue is predominantly a foreign relations matter that requires deference to the reasonable actions of respondents. Consequently, our definition of the word exploration must be sensitive to the foreign relations element of the JMSU.

One. The JMSU is not primarily for the purpose of inviting other countries to partake of the country's natural resources. Instead, the primordial purpose is to trail-blaze efforts at establishing a code of conduct among claimant-countries to resolve amicably conflicting territorial claims over disputed territories. This is clear from the alleged clauses of the JMSU, which to quote again are:

... an expression of the Parties' commitment "to pursue efforts to transform the South China Sea into an area of peace, stability, cooperation, and development." Consequently, the Parties desire "to engage in a joint research of petroleum resource potential of a ce1iain area of the South China Sea as a pre-exploration activity."

As a foreign relations instrument, rather than just being an exploration-development-utilization agreement, the JMSU must be interpreted in relation to our Constitution in the most deferential light to the true decision-makers' conceptualization of what it is. To reiterate the doctrine in how courts should deal with foreign relations' matters:

In Vinuya v. Romulo, we stated that "the question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches."5

Although the citation has to do with the matter of according diplomatic immunity, the reasoning therein is with more reason applicable to the present case where the very fabric of the country's national security, not simply embarrassment to the world-at-large as in the diplomatic immunity cases, is at stake. How we deal with real troublesome neighbor-sovereigns should be a matter left deferentially to the resolution of our foreign affairs officials. The Court must not double dip in these matters in doubtful cases because we risk adverse outcomes to both our national security and international standing.

Thus, our courts have limited power under the Constitution to require the executive branch to do anything in the area of foreign policy. The decision to deal with the West Philippine Sea issue in the manner such as the JMSU falls directly within the prerogative powers of the executive to conduct foreign relations, including the right to speak freely with foreign states on all such matters.1âшphi1

This is one of the executive's residual powers that is legally left in the hands of the executive through the President.6 While limited, it is nonetheless a source of non-statutory administrative power accorded by jurisprudence7 and statute8 to the Chief Executive. To stress, the power in foreign affairs includes the making of representations to foreign governments. The decision to enter into the JMSU was made in the exercise of this power over foreign relations.

In exercising its powers over foreign relations, the executive is not exempt from constitutional scrutiny. It is for the executive and not the courts to decide whether and how to exercise its powers, but the courts clearly have the jurisdiction and the duty to determine whether this power asserted by the executive does in fact exist and, if so, whether its exercise infringes the Constitution:

The limited power of the comis to review exercises of the foreign relations power for constitutionality reflects the fact that in a constitutional democracy, all government power must be exercised in accordance with the Constitution. This said, judicial review of the exercise of this power for constitutionality remains sensitive to the fact that the executive branch of government is responsible for decisions under this power, and that the executive is better placed to make such decisions within a range of constitutional options. The government must have flexibility in deciding how its duties under the power are to be discharged. But it is for the courts to determine the legal and constitutional limits within which such decisions are to be taken. It follows that in the case of refusal by a government to abide by constitutional constraints, courts are empowered to make orders ensuring that the government's foreign affairs powers are exercised in accordance with the Constitution.

Having concluded that the courts possess a narrow power to review and intervene on matters of foreign affairs to ensure the constitutionality of executive action, the final question is how now to exercise this power?

In my opinion, our first concern is that our review must not give little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account our broader national interests.

Our second concern is the impact of the relief the Court is going to provide in the premises. Here, the JMSU involves areas, which, if the ponencia's narration were to be believed, are far from the immediate control of the Court and even the national government as a whole and where other countries are prowling with their own armed forces. The likelihood that the remedy will be effective is unclear. The impact on our foreign relations of a declaration of unconstitutionality cannot be properly assessed by the Court.

This brings us to our third concern, already mentioned above: the inadequacy of the evidentiary record. The record before us gives a necessarily incomplete picture of the range of considerations currently faced by petitioners and respondents in assessing the relief prayed for. We do not know what negotiations, if at all, may have been taking place or will take place, between the parties to the JMSU. As observed elsewhere:

The timing ofrepresentations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill-equipped to deal.9

The evidentiary uncertainties, the limitations of the Court's institutional competence, and the need to respect the foreign relations powers of the executive, lead me to conclude that the proper remedy is to interpret the word exploration in Section 2, Article XII of the Constitution in a manner that liberally considers the foreign relations element in the instrument in which it is implicated, which is the JMSU, but which must still be reasonable.

Two. The JMSU does not involve the exploration, development and utilization of natural resources as envisioned in Section 2, Article XII of the Constitution. This is because the JMSU is not intended to extract and carry off of natural resources from the project areas. An exploration in this context is not covered by Section 2, Article XII. To fall under the latter, the exploration must involve the extraction and carrying off of natural resources.

This interpretation is not new in the Philippines. It is recognized in subsections 3(q) and (aq) of Philippine Mining Act of 199510 and in Apex Mining Co. Inc. v. Southeast Mindanao Gold Mining Corporation.11 This interpretation of exploration as being exempt from Section 2, Article XII has been upheld in La Bugal-B'laan Tribal Association Inc. v. Ramos.12 This interpretation is also consistent with the characterization of this case as predominantly a foreign relations matter where the Court should tread more carefully than usual in upsetting the foreign relations power of the executive. Only in the clearest of cases may the Court dictate upon the executive on what to do in matters of foreign relations and impose a relief that is based on clear and solid evidentiary footing on how it upholds the Constitution, how it impacts on the executive's conduct of international relations, and how it involves our paramount public interests. In the absence of such evidentiary assurances, we ought to defer within reason to the executive's decision in the premises.