EN BANC
FRANCISCO I. CHAVEZ,
Petitioner,
G.
R.
No. 133250
May 6, 2003
-versus-
PUBLIC ESTATES
AUTHORITYAND AMARI COASTAL
BAY DEVELOPMENT CORPORATION,
Respondents.
chanroblesvirtualawlibrary
SEPARATE OPINION,
CONCURRING AND DISSENTING
And in the naked
light I saw
Ten thousand people,
maybe more.
People talking
without
speaking,
People hearing
without
listening,
People writing songs
that voices never share
And no one dared
Disturb the sound
of silence.
-
Paul Simon, Sound of Silence
BELLOSILLO,
J.:chanroblesvirtuallawlibrary
A STEREOTYPICAL ACTION,
AN ARCHETYPAL RESPONSE, A MATTER OF DUE PROCESS - a motion for
reconsideration
relieves the pressure of mistakes shrouded in the mystified body of
putative
precedents. It serves the traditional and standard procedure for a
second
chance not only in favor of party-litigants but the courts as well,
before
taking that great leap of faith into stare decisis where even our
errors
are etched as rules of conduct or, as our conscious choice would have
it,
into the jural postulate of a civilized society where men are able to
assume
that they may control, for purposes beneficial to them, what they have
created by their own labor and what they have acquired under the
existing
social and economic order. With such opportunity presenting itself in
the
instant case, I am up to the task of scrutinizing a monumental
challenge
to the course of economic decision-making inherent not in the mandate
of
this Court but in those of the accountable political branches of our
government
whose long-standing discretion we have thrashed - a perfunctory
acquiescence
amidst the disturbing sound of silence is certainly feckless and
inappropriate.chanrobles virtual law library
First, my concurrence.
I am happy that this Court has stuck to a civil libertarian’s honesty
and
transparency in government service when interpreting the ambit of the
people’s
right to information on matters of public concern. Nothing can be more
empowering on this aspect than to compel access to all information
relevant
to the negotiation of government contracts including but not limited to
evaluation reports, recommendations, legal and expert opinions, minutes
of meetings, terms of reference and other documents attached to such
reports
or minutes, all relating to any proposed undertaking. This to me
encourages
our people to watch closely the proprietary acts of State functionaries
which more often than not, because they have been cloaked in technical
jargon and speculation due to the absence of verifiable resource
materials,
have been left unaccounted for public debate and searching inquiry.cralaw:red
Having said what is
positively remarkable about the ponencia, let me discuss the crux of my
dissent.cralaw:red
Firstly, as explained
by the contracting parties now adversely affected by the Decision to
nullify
ab initio the Amended Joint Venture Agreement (AJVA), there is no
reason
to go that far to prove a point. I agree with them. According to the
ponencia,
the AJVA was intended to:
x x x
develop
the Freedom Islands. The JVA also required the reclamation of an
additional
250 hectares of submerged areas surrounding these islands to complete
the
configuration in the Master Development Plan of the Southern
Reclamation
Project-MCCRRP x x x The subject matter of the Amended JVA, as stated
in
its second Whereas clause, consists of three properties, namely:
1.
‘Three partially reclaimed and substantially eroded islands along
Emilio
Aguinaldo Boulevard in Paranaque and Las Piñas, Metro Manila,
with
a combined titled area of 1,578,441 square meters;’ 2. ‘Another area of
2,421,559 square meters contiguous to the three islands;’ and 3. ‘At
AMARI’s
option as approved by PEA, an additional 350 hectares more or less to
regularize
the configuration of the reclaimed area.’ PEA confirms that the Amended
JVA involves “the development of the Freedom Islands and further
reclamation
of about 250 hectaresx x x,’ plus an option ‘granted to AMARI to
subsequently
reclaim another 350 hectaresx x x’ In short, the Amended JVA covers a
reclamation
area of 750 hectares. Only 157.84 hectares of the 750-hectare
reclamation
project have been reclaimed, and the rest of the 592.15 hectares are
still
submerged areas forming part of Manila Bay. Under the Amended JVA,
AMARI
will reimburse PEA the sum of P1,894,129,200.00 for PEA’s ‘actual cost’
in partially reclaiming the Freedom Islands. AMARI will also complete,
at its own expense, the reclamation of the Freedom Islands. AMARI will
further shoulder all the reclamation costs of all the other areas,
totaling
592.15 hectares, still to be reclaimed. AMARI and PEA will share, in
the
proportion of 70 percent and 30 percent, respectively, the total net
usable
area which is defined in the Amended JVA as the total reclaimed area
less
30 percent earmarked for common areas. Title to AMARI’s share in
the net usable area, totaling 367.5 hectares, will be issued in the
name
of AMARI. Section 5.2 (c) of the Amended JVA provides that - ‘x x x,
PEA
shall have the duty to execute without delay the necessary deed of
transfer
or conveyance of the title pertaining to AMARI’s land share based on
the
Land Allocation Plan. PEA, when requested in writing by AMARI, shall
then
cause the issuance and delivery of the proper certificates of title
covering
AMARI’s Land Share in the name of AMARI,x x x; provided, that if more
than
seventy percent (70%) of the titled area at any given time pertains to
AMARI, PEA shall deliver to AMARI only seventy percent (70%) of the
titles
pertaining to AMARI, until such time when a corresponding proportionate
area of additional land pertaining to PEA has been titled.’
Indisputably,
under the Amended JVA AMARI will acquire and own a maximum of 367.5
hectares
of reclaimed land which will be titled in its name. To implement the
Amended
JVA, PEA delegated to the unincorporated PEA-AMARI joint venture PEA’s
statutory authority, rights and privileges to reclaim foreshore and
submerged
areas in Manila Bay. Section 3.2.a of the Amended JVA states that -
‘PEA
hereby contributes to the joint venture its rights and privileges to
perform
Rawland Reclamation and Horizontal Development as well as own the
Reclamation
Area, thereby granting the Joint Venture the full and exclusive right,
authority and privilege to undertake the Project in accordance with the
Master Development Plan.’ The Amended JVA is the product of a
renegotiation
of the original JVA dated April 25, 1995 and its supplemental agreement
dated August 9, 1995.[1]chanrobles virtual law library
But the AJVA, which is
basically a specie of an “I do, you give” contract, is severable in the
sense that AMARI’s share in the project need not be paid in parcels of
the reclaimed land but also in cash. The majority cannot set this
alternative
aside since lawyers for AMARI are also interested in this substitute
option
if all else fail.[2]
Another tame solution, so they say, is for the Public Estates Authority
to hold title to the reclaimed lands until transferred to a qualified
transferee.[3]
This too is possible in the name of equity. To be sure, the prestation
in the PEA-AMARI contract is not contrary to law or public policy since
the government stands to be benefited by AMARI’s part of the bargain
while
the latter must in turn be compensated for its efforts; in the present
context service and compensation, “I do, you give” are certainly not
illegal
considerations. Since the baseless anxiety about the AJVA lies only in
the mode of recompense for AMARI, and the AJVA offers an abundance of
means
to get it done, even granting that the ponencia has correctly
understood
the law to prevent permanently the transfer of reclaimed lands to
AMARI,
no reason could sanely justify voiding the entire contract and
eternally
deny a party its due for its onerous activities. As we have held in
Republic
v. Court of Appeals:[4]chanrobles virtual law library
x x x it
appearing
that something compensable was accomplished by them, following the
applicable
provision of law and hearkening to the dictates of equity, that no one,
not even the government shall unjustly enrich oneself/itself at the
expense
of another, we believe and so hold, that Pasay City and RREC should be
paid for the said actual work done and dredge-fill poured in x
x
xchanrobles virtual law library
Secondly, I am not
comfortable
with the idea of forever withholding reclaimed lands as unmoving assets
in our developmental concerns.
Government lands are
classified in a number of ways. They may be lands of the public domain,
either alienable or inalienable, or lands of the private domain, which
refer to “land belonging to and owned by the state as a private
individual,
without being devoted for public use, public service or the development
of national wealth x x x similar to patrimonial properties of the
State.”[5]
Under the Civil Code, government lands can either be properties of the
public dominion, or those intended for public use, such as roads,
canals,
rivers, torrents, ports and bridges constructed by the State, banks,
shores,
roadsteads, and others of similar character, or those which belong to
the
State, without being for public use, intended for some public service
or
for the development of the national wealth;[6]
or patrimonial properties of the State, i.e., properties other than
properties
of the public dominion or former properties of the public dominion that
are no longer intended for public use or for public service.[7]
Clearly, the government owns real estate which is part of the “public
lands”
or alienable lands of the public domain and other real estate which is
not a part thereof.cralaw:red
Alienable lands of the
public domain, or those available for alienation or disposition, are
part
of the patrimonial properties of the State.[8]
They are State properties available for private ownership except that
their
appropriation is qualified by Secs. 2 and 3 of Art. XII of the
Constitution
and the public land laws.[9]
Before lands of the public domain are declared available for private
acquisition,
or while they remain intended for public use or for public service or
for
the development of national wealth, they would partake of properties of
public dominion just like mines before their concessions are granted,[10]
in which case, they cannot be alienated or leased or otherwise be the
object
of contracts.[11]
In contrast, patrimonial properties may be bought or sold or in any
manner
utilized with the same effect as properties owned by private persons.[12]
Lands of the private domain, being patrimonial properties, are valid
objects
of contracts generally unfettered by the terms and conditions set forth
in Secs. 2 and 3 of Art. XII of the Constitution, which refer only to
lands
of the public domain, nor by statutes for the settlement, prescription
or sale of public lands.cralaw:red
The ponencia classified
the reclaimed lands herein involved to be lands of the public domain.
Thus,
as summarized in the ponencia sought to be reconsidered:
1. The
157.84
hectares of reclaimed lands comprising the Freedom Islands, now covered
by certificates of title in the name of PEA, are alienable lands of the
public domain. PEA may lease these lands to private corporations but
may
not sell or transfer ownership of these lands to private corporations.
PEA may only sell these lands to Philippine citizens, subject to the
ownership
limitations in the 1987 Constitution and existing laws.
2. The 592.15
hectares
of submerged areas of Manila Bay remain inalienable natural resources
of
the public domain until classified as alienable or disposable lands
open
to disposition and declared no longer needed for public service. The
government
can make such classification and declaration only after PEA has
reclaimed
these submerged areas. Only then can these lands qualify as
agricultural
lands of the public domain, which are the only natural resources the
government
can alienate. In their present state, the 592.15 hectares of submerged
areas are inalienable and outside the commerce of man.chanrobles virtual law library
3. Since the
Amended
JVA seeks to transfer to AMARI, a private corporation, ownership of
77.34
hectares of the Freedom Islands, such transfer is void for being
contrary
to Section 3, Article XII of the 1987 Constitution which prohibits
private
corporations from acquiring any kind of alienable land of the public
domain.
4. Since the
Amended
JVA also seeks to transfer to AMARI ownership of 290.156 hectares of
still
submerged areas of Manila Bay, such transfer is void for being contrary
to Section 2, Article XII of the 1987 Constitution which prohibits the
alienation of natural resources other than agricultural lands of the
public
domain. PEA may reclaim these submerged areas. Thereafter, the
government
can classify the reclaimed lands as alienable or disposable, and
further
declare them no longer needed for public service. Still, the transfer
of
such reclaimed alienable lands of the public domain to AMARI will be
void
in view of Section 3, Article XII of the 1987 Constitution which
prohibits
private corporations from acquiring any kind of alienable land of the
public
domain.[13]
This is where I also
disagree.
Reclaimed lands are lands sui generis, as the majority would rule, and
precisely because of this characterization we cannot lump them up in
one
telling swoop as lands of the public domain without due regard for
vested
rights as well as joint executive and legislative intent to provide
otherwise.
For, after all, it is the executive and legislative powers that
determine
land classification.[14]
To illustrate, in Province of Zamboanga del Norte v. City of Zamboanga[15]
this Court took note of the diverging “norms” provided by laws, i.e.,
the
Civil Code and the Law of Municipal Corporations, in classifying
municipal
lands into either public or patrimonial, and held that “applying the
norm
obtaining under the principles constituting the Law of Municipal
Corporations,
all those x x x properties in question which are devoted to public
service
are deemed public; the rest remain patrimonial. Under this norm, to be
considered public, it is enough that the property be held and devoted
for
governmental purposes like local administration, public education,
public
health, etc.” Clearly, the categorization of government lands depends
upon
legislative intent which the courts must implement.chanrobles virtual law library
The Freedom Islands
was reclaimed by the Construction and Development Corporation of the
Philippines
(CDCP) pursuant to a contract with the Republic whereby the former in
exchange
for its efforts would receive fifty percent (50%) of the total
reclaimed
land. This arrangement is authorized under Art. 5 of the Spanish Law of
Waters which provides, “[l]ands reclaimed from the sea in consequence
of
works constructed by the State, or by the provinces, pueblos or private
persons, with proper permission, shall become the property of the party
constructing such works, unless otherwise provided by the terms of the
grant of authority,” and by PD 3-A (1973) stating that, “[t]he
provisions
of any law to the contrary notwithstanding, the reclamation of areas
under
water, whether foreshore or inland, shall be limited to the National
Government
or any person authorized by it under a proper contract (underscoring
supplied).”
Both statutes are still effective since neither one repeals the other
but
only a modification is inserted in that reclamation by a private
contractor
must now be governed by a “contract.” As the standing laws, i.e., Art.
5 of the Spanish Law of Waters and PD 3-A, treat reclaimed lands as
proper
objects for disposition whether by grant of authority or contract, such
reclaimed lands as they have been acquired by the State by means of a
contract
are not properties of public dominion but patrimonial lands of the
State
that it can dispose, and lands of the private domain that the State may
alienate to anyone since the statutes make no restriction altogether.cralaw:red
The reclaimed lands
pertaining to CDCP under the contract with the Republic are private
properties
of CDCP. The Republic is authorized to convey them to CDCP, a
corporation
duly organized and registered under the laws of the Philippines,[16]
and the lands themselves are products of CDCP’s efforts, money and
expertise.
When CDCP acquires property, it does so in its private capacity in the
course of the exercise of its corporate powers as a juridical entity
and
acting as an ordinary person capable of entering into contracts or
making
transactions for the transmission of title or other real rights.[17]
Under Art. 712 of the Civil Code, ownership and other real rights over
property are acquired and transmitted by tradition in consequence of
certain
contracts. In fact, PD 1085 (1977)[18]
acknowledges the existence of rights in favor of CDCP and conditions
the
transfer of assets from CDCP to PEA upon the recognition and respect
for
“the rights and interests of the Construction and Development
Corporation
of the Philippines pursuant to the aforesaid contract,” and
furthermore,
upon the transfer of “such portion or portions of the land reclaimed or
to be reclaimed as provided for in the above-mentioned contract” to the
contractor or his assignees.cralaw:red
The rest of the lands
reclaimed by CDCP as Freedom Islands but belonging to the Republic
under
the contract, i.e., the other fifty percent (50%) thereof, are lands of
the private domain. The reason is simple: this fifty percent (50%) to
which
the Republic is entitled is only an extension of the other fifty
percent
(50%) that went to CDCP as its private property in consideration of its
reclamation. An “extension,” signifies enlargement in any direction -
in
length, breadth, or circumstance.[19]
Thus, in Manila Lodge No. 761 v. Court of Appeals,[20]
We held: “if the reclaimed area is an extension of the Luneta, then it
is of the same nature or character as the old Luneta. Anent this
matter,
it has been said that a power to extend (or continue an act or
business)
cannot authorize a transaction that is totally distinct.” Moreover, as
in the case of lands obtained in escheat proceedings or succession
which
are properties of the private domain, the reclaimed lands are procured
through the contract between the Republic and CDCP without which they
would
not have come into being.chanrobles virtual law library
The transfer of the
Freedom Islands to the PEA under PD 1085 (both the fifty percent (50%)
owned by CDCP and the other half owned by the Republic) does not alter
the description of the reclaimed lands - they remain lands of the
private
domain. In fact, the conveyance bolsters such characterization: fifty
percent
(50%) was obtained from a private owner, CDCP, hence subsuming it under
the private domain.[21]
The other fifty percent (50%) belonging to the Republic is given to PEA
in exchange for a participation in the latter’s equity. As
explained
in DoJ Opinion No. 026, s. 1994, which answers negatively whether the
President
may transfer gratuitously the title of the Republic over all lands
within
the Old Bilibid Compound (OBC) in favor of the PEA, subject to the
existing
valid private rights if there be any, to form part of PEA’s
project-related
asset pool -
First and foremost,
PEA’s Charter delimits the contributions of the National Government to
the PEA which are to be compensated by the equivalent number of shares
of stocks of the PEA in the name of the Republic (Secs. 7 and 15, P. D.
1084). The proposed gratuitous transfer of valuable national government
property of the PEA by a Presidential Proclamation would go beyond the
amount of the contribution/exposure of the National Government to the
capital
of the PEA as prescribed by law and do away with the consideration
therefor
that is the equivalent number of shares of stocks of the PEA to be
issued
in the name of the National Government. Accordingly, the said proposal
would run counter to the provisions of the abovementioned Charter, or
amount
to an amendment of the said law (Underscoring supplied.)
Consequently, under
LOI 1390 (1984), to accelerate the development of the First
Neighborhood
Unit Project within the Manila-Cavite Coastal Road Project, an excess
of
the reclaimed land was ceded by PEA to the Marina Properties
Corporation.
Administrative Order No. 348 (1997) authorized PEA to undertake
“pursuant
to its charter (PD 1084 and PD 1085) ancillary reclamation works to put
in place the drainage canals and outfalls and to negotiate and enter
into
such agreements including land-swapping, on a value for value basis, as
may be necessary for the acquisition of rights-of-way (ROW) for the
said
major roads/drainage canals in order that these are undertaken at no
cost
or budgetary outlay on the part of PEA or the National Government
(underscoring
supplied).”[22]
Subsequently, AO No. 397 (1998) of then President Ramos settled claims
of CDCP against PEA by conveying portions of the lands previously
reclaimed
under CDCP’s contract with the Republic.cralaw:red
Evidently, by these
official measures making the reclaimed lands available for the
ownership
of private corporations as transferees, the portions of land reclaimed
by CDCP were not intended by the executive and legislative branches of
government as proper authorities for such purpose to be labeled
alienable
lands of the public domain but lands of the private domain, hence,
generally
not subject to the strictures of Secs. 2 and 3 of Art. XII of the
Constitution.
There is none of the intention to devote them to public use in order
that
they may be considered as properties still of the public domain.[23]
As it is “only the executive and possibly the legislative department
that
have the authority and the power to make the declaration that said
property
is no longer required for public use,”[24]
or for that matter, already belongs to the private domain, and with the
declaration having been made by enlisting the reclaimed lands as pieces
of assets available for commercial use, they continue as private lands
of the State when transferred to PEA, and from the latter as mode of
compensation
for AMARI in the assailed AJVA.chanrobles virtual law library
The authority to dispose
of government lands is a strong indicum of the patrimonial composition
of the properties.[25]
Ownership is the right to enjoy and dispose of a thing without further
limitations than those established by law, and jus disponendi of one’s
property is an attribute of ownership. This is clear from PD 1084
(1977),
the charter of PEA which states as among the purposes thereof to
“reclaim
land, including foreshore and submerged areas, by dredging, filling or
other means, or to acquire reclaimed lands,” or to “develop, improve,
acquire,
administer, deal in, subdivide, dispose, lease and sell any and all
kinds
of lands, buildings, estates and other forms of real property, owned,
managed,
controlled and/or operated by the government.” To this end, PEA was
empowered
to “purchase, lease, build, alter, construct, erect, enlarge, occupy,
manage,
sell, mortgage, dispose of or otherwise deal in, buildings of every
kind
and character whatsoever, whether belonging to, or to be acquired by
the
Authority.”
Significantly, to stress
the legislative intent to segregate PEA’s patrimonial lands or lands of
the private domain which are being used as assets in its commercial
undertakings
from the realm of alienable lands of the public domain, PD 1084
purposely
vested it with the right to “hold lands of the public domain in excess
of [the] area permitted to private corporations by statute.” In the
same
DoJ Opinion No. 026, s. 1994 mentioned above, it is articulated
although
ruefully that the power of PEA to dispose of its assets constitutes
adequate
legal basis under Sec. 48, Chapt. 12, Bk. I, of EO 292, the
Administrative
Code of 1997,[26]
as well as under our ruling in Laurel v. Garcia[27]
that “it is not for the President to convey valuable real property of
the
government on his or her own sole will x x x any such conveyance must
be
authorized and approved by a law enacted by Congress x x x it requires
executive and legislative concurrence” for PEA to exercise validly such
mandate.cralaw:red
The proscription of
Secs. 2 and 3 of Art. XII of the Constitution finds no application in
the
instant case, especially as regards the 157.84 hectares of reclaimed
lands
comprising the Freedom Islands. As explained above, this real estate is
not of the public domain but of the private domain. In the same way,
the
various public land laws in their essential parts do not govern the
alienation
of the Freedom Islands. What is more, reclaimed lands are not plain and
simple patches of the earth as agricultural, timber or mineral lands
are,
in the full sense of being products of nature, but are the results of
the
intervention of man just like in the extraction of mineral resources,
i.e.,
gold, oil, petroleum, etc. Landform encompasses only six (6) major
categories:
high mountains, low mountains, hills, plains with high relief features,
plains of moderate relief and plains of slight relief.[28]
The terrain types identified by this system are established by a
uniform
set of descriptive properties, and nowhere do we read therein reclaimed
lands. The origin of our islands as other islands in the western
Pacific
is believed to be “the upfoldings of ancient continental rocks with
deep
troughs between representing downfolds or down-dropped blocks x x x
[h]ence,
the elevations of those islands x x x which rest upon submarine
platforms
has been aided by deformation of the earth’s crust”[29]
- our islands were not created through the process of reclamation but
through
natural formation.cralaw:red
In fact, reclaimed lands
are the result of man’s interference with nature. They are not akin to
land categories as we know them but more representative of the
exploitation
of natural resources coupled with the inventiveness of man. As
mentioned
above, the more relevant comparisons would be the exploration and
utilization
of mineral resources that are turned over to the private contractor in
exchange for certain fees and royalties.[30]
To be sure, the constitutional injunction in Sec. 2 of Art XII that
“[w]ith
the exception of agricultural lands, all other natural resources shall
not be alienated” was never intended to restrict our leaders in the
executive
branch to require in mineral agreements a stipulation “requiring the
Contractor
to dispose of the minerals and by-products produced at the highest
market
price and to negotiate for more advantageous terms and conditions
subject
to the right to enter into long-term sales or marketing contracts or
foreign
exchange and commodity hedging contracts which the Government
acknowledges
to be acceptable x x x (Underscoring supplied.)”[31]chanrobles virtual law library
Without doubt, what
applies to reclamation projects is this portion of Sec. 2, Art. XII of
the Constitution:
x x x the
exploration,
development, and utilization of natural resources shall be under the
full
control and supervision of the State. The State may directly undertake
such activities, or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations
or
associations at least sixty per centum of whose capital is owned by
such
citizens. Such agreements [are] x x x under such terms and conditions
as
may be provided by law (Underscoring supplied.)”
The clause “under such
terms and conditions as may be provided by law” refers to the standing
laws affecting reclaimed lands, such as the PEA charter. The
orientation
to this portion of Sec. 2 explains why in most executive issuances and
statutes relating to reclamation of lands we would read references to
joint
venture or production-sharing agreements. Hence, in EO 405 (1997)
Authorizing
the Philippine Ports Authority (PPA) to Reclaim and Develop Submerged
Areas
Vested in the PPA For Port-Related Purposes, it was noted in the
“Whereas”
Clauses that land reclamation and development projects are capital
intensive
infrastructure enterprises requiring huge financial outlays through
joint
venture agreements. In this light, we ought to resolve the instant
reclamation
project according to the clear intendment of the executive and
legislative
branches of government to handle reclaimed lands as patrimonial
properties
and lands of the private domain of the State.
As regards the real
character of reclaimed lands, Sec. 302 of RA 7160 (1991)[32]
provides that “the contractor shall be entitled to a reasonable return
of its investment in accordance with its bid proposal as accepted by
the
local government unit concerned x x x In case of land reclamation or
construction
of industrial estates, the repayment plan may consist of the grant of a
portion or percentage of the reclaimed land or the industrial estate
constructed.”
Under Sec. 6 of RA 6957 (1990),[33]
“the contractor shall be entitled to a reasonable return of its
investment
and operating and maintenance costs x x x In the case of land
reclamation
or the building of industrial estates, the repayment scheme may consist
of the grant of a portion or percentage of the reclaimed land or
industrial
estate built, subject to the constitutional requirements with respect
to
the ownership of lands.” The mention of the “constitutional
requirements”
in RA 6957 has to do with the equity composition of the corporate
recipient
of the land, i.e., “corporations or associations at least sixty per
centum
of whose capital is owned by such citizens” and not to the outright
prohibition
against corporate ownership of lands of the public domain.[34]
It is also important to note that a “contractor” is any “individual,
firm,
partnership, corporation, association or other organization, or any
combination
of any thereof,”[35]
thus qualifying AMARI to receive a portion of the reclaimed lands.cralaw:red
There is nothing essentially
wrong with the agreement between PEA and AMARI in that the latter would
receive a portion of the reclamation project if successful. This is a
common
payment scheme for such service done. It is recognized under the
Spanish
Law of Waters and authorized by the PEA charter as well as by RA 6957.
The assailed AJVA is not awarding AMARI a portion of the Manila Bay, a
property of public dominion, but a fraction of the land to be uplifted
from it, a land of the private domain. While the reclamation project
concerns
a future thing or one having potential existence, it is nonetheless a
legitimate
object of a contract.[36]
We do not have to be
confused regarding the nature of the lands yet to be reclaimed. They
are
the same as the Freedom Islands. Both are meant to serve legitimate
commercial
ends, hence, lands of the private domain intended by both the executive
and legislative branches of government to be used as commercial assets.
This objective is obvious from PD 1084 which empowers PEA to “enter
into,
make, perform and carry out contracts of every class and description,
including
loan agreements, mortgages and other types of security arrangements,
necessary
or incidental to the realization of its purposes with any person, firm
or corporation, private or public, and with any foreign government or
entity.”
Executive Order No. 525 (1979)[37]
provides that “all lands reclaimed by PEA shall belong to or be owned
by
the PEA which shall be responsible for its administration, development,
utilization or disposition in accordance with the provisions of
Presidential
Decree No. 1084. Any and all income that the PEA may derive from the
sale,
lease or use of reclaimed lands shall be used in accordance with the
provisions
of Presidential Decree No. 1084.” Finally, EO 654 (1981)[38]
mandates that “in the disposition of its assets and properties, the
Authority
shall have the authority to determine the kind and manner of payment
for
the transfer thereof to any third party.” Since the principal task of
PEA
is to reclaim lands or to approve the execution of it by others, its
power
to contract must necessarily involve dealings with the reclaimed lands.chanrobles virtual law library
Admittedly, our public
land laws classify reclaimed lands as alienable lands of the public
domain.[39]
Under such taxonomy, the real estate would fall within the prohibition
against ownership by private corporations under Secs. 2 and 3, Art.
XII,
of the Constitution. Under the public land laws, the mode of disposing
them is mainly through lease, or if titled in the name of a government
entity, by sale but only to individual persons. But herein lies the rub
- the nomenclature attached to reclaimed lands as belonging to the
public
domain is statutory in origin. This means, and ought to import, that
the
category may change according to legislative intent. The power to make
laws includes the power to alter and repeal them. Nothing sacrosanct
like
a constitutional injunction exists that reclaimed lands be always
classified
as lands of the public domain; the class is statutory in foundation and
so it may change accordingly, as it was modified for purposes of the
mandate
of the Public Estates Authority.cralaw:red
The issuance of a “special
patent” under PD 1085, i.e., “Special Land Patent/Patents shall be
issued
by the Secretary of Natural Resources in favor of the Public Estate
Authority
without prejudice to the subsequent transfer to the contractor or his
assignees
of such portion or portions of the land reclaimed or to be reclaimed as
provided for in the above-mentioned contract x x x on the basis of such
patents, the Land Registration Commission shall issue the corresponding
certificates of title,” does not mean that the reclaimed lands prior to
such “special patent” are classified as lands of the public domain.cralaw:red
As a matter of ordinary
land registration practice, a special patent is a “patent to grant,
cede,
and convey full ownership of alienable and disposable lands formerly
covered
by a reservation or lands of the public domain” and is issued upon the
“promulgation of a special law or act of Congress or by the Secretary
of
Environment and Natural Resources as authorized by an Executive Order
of
the President.”[40]
This meaning of a “special patent” cannot override the overwhelming
executive
and legislative intent manifest in PDs 1084 and 1085 to make the
reclaimed
lands available for contract purposes. What is important in the
definition
of “special patent” is the grant by law of a property of the Republic
for
the full ownership of the grantee while the classification of the land
is not at all decisive in such description since the “special law or
act
of Congress” or the “Executive Order” may classify the subject land
differently,
as is done in the instant case. Thus the Department of Environment and
Natural Resources (DENR), through the Reservation and Special Land
Grants
Section of the Land Management Division, is tasked to issue special
patents
in favor of “government agencies pursuant to special laws,
proclamations,
and executive orders x x x (underscoring supplied).”[41]
Verily, in the absence of a general law on the authority of the
President
to transfer to a government corporation real property belonging to the
Republic,[42]
PD 1085 is free to choose the means of conveying government lands from
the Republic to PEA, a government corporation, whether by special
patent
or otherwise without adjusting their character as lands of private
domain.chanrobles virtual law library
Additionally, nothing
momentous can be deduced from the participation of the Secretary of
Natural
Resources in the signing of the “special patent” since he is by law,
prior
to the transfer of the reclaimed lands to PEA, the land officer of the
Republic for lands of the private domain as may be gleaned from Sec. 1
of Act 3038, the general law dealing with the disposition of lands of
the
private domain,[43]
i.e., “the Secretary of Agriculture and Natural Resources is hereby
authorized
to sell or lease land of the private domain of the Government of the
Philippines
Islands x x x.”[44]
This is because under the organization of the DENR, the Land Management
Division is charged with the “planning, formulating, and recommending
policies
for the sound management and disposition of x x x friar lands,
patrimonial
properties of the government, and other lands under the region’s
administration
as well as guidelines on land use and classification,” while the
Reservation
and Special Land Grants Section thereof prepares the special patents
proposed
to be issued in favor of “government agencies pursuant to special laws,
proclamations, and executive orders x x x (Underscoring supplied.)”[45]
The reference to a “special
patent” is called for since the conveyance of the reclaimed lands
begins
with the Republic not with PEA. Once the transfer of the reclaimed
lands
is perfected by the issuance of special land patents signed by the
Secretary
of Natural Resources in favor of PEA, the subsequent disposition
thereof,
e.g. the transfer from PEA to AMARI, falls within the coverage of PEA’s
charter and cognate laws. The reason is that PEA is henceforth the
owner
of all lands reclaimed by it or by virtue of its authority “which shall
be responsible for its administration, development, utilization or
disposition
in accordance with the provisions of Presidential Decree No. 1084.”[46]
Significantly, for the registration of reclaimed lands alienated by PEA
pursuant to its mandate, it is only necessary to file with the Register
of Deeds the “instrument of alienation, grant, patent or conveyance”
whereupon
a certificate of title shall be entered as in other cases of registered
land and an owner’s duplicate issued to the grantee.cralaw:red
Indeed, there should
be no fear calling reclaimed lands “lands of the private domain” and
making
them available for disposition if this be the legislative intent. The
situation
is no different from the trade of mineral products such as gold,
copper,
oil or petroleum. Through joint ventures that are allowed under the
Constitution,
our government disposes minerals like private properties. At the end of
the pendulum, if we refer to reclaimed lands as lands of the public
domain
inalienable except to individual persons, then it is time to end all
reclamation
projects because these efforts entail too much expense and no
individual
person would have the capital to undertake it himself. We must not
hamstring
both the Executive and Congress from making full use of reclaimed lands
as an option in following economic goals by the declaration made in the
ponencia.chanrobles virtual law library
And what about rights
that have been vested in private corporations in the meantime? In the
words
of Dean Roscoe Pound, “in civilized society men must be able to assume
that they may control, for purposes beneficial to themselves, what they
have discovered and appropriated to their own use, what they have
created
by their own labor and what they have acquired under the existing
social
and economic order. This is a jural postulate of civilized society as
we
know it. The law of property in the widest sense, including incorporeal
property and the growing doctrines as to protection of economically
advantageous
relations, gives effect to the social want or demand formulated in this
postulate.”[47]
It appears we have not accounted for the rights of others who are not
even
involved in the instant case.cralaw:red
The underlying issue
is about trust and confidence in our government. If we want to deal
with
the perceived mistrust in the motivation of our leaders, the solution
rests
elsewhere. In the same manner that we do not have to scorch the face to
treat a pimple, so must we not prevent executive and legislative intent
from disposing reclaimed lands, which in the first place had to be
“constructed”
so it would exist, very much unlike the permanent patches of earth that
we should rightly control.cralaw:red
Giving petitioner Chavez
a full recognition of his right to access matters of public concern is
a correct step in the appropriate direction. The ponencia should have
cut
and cut clean there as we must do now. Anything beyond that, as the
ponencia
has done previously, is ivory-tower and unaccountable interventionism
at
its worst.cralaw:red
PREMISES CONSIDERED,
I vote to GRANT the Motions for Reconsideration and DISMISS the
Petition
for Mandamus with prayer for a writ of preliminary injunction and a
temporary
restraining order EXCEPT as to the right of petitioner Francisco I.
Chavez
to have access to all information relevant to the negotiation of
government
contracts including but not limited to evaluation reports,
recommendations,
legal and expert opinions, minutes of meetings, terms of reference and
other documents attached to such reports or minutes, all relating to
any
proposed legitimate undertaking, which shall at all times be respected,
without prejudice to any appropriate action the petitioner may
hereafter
take in the premises.
____________________________
Endnotes:
[1]
Decision, pp. 3, 44-45.
[2]
Rollo, p. 622.
[3]
Ibid.
[4]
G.R. No. 103882, 25 November 1998, 299 SCRA 199, 238.chanrobles virtual law library
[5]
DENR AO 20-98, re: “Revised Rules and Regulations on the Conduct of
Appraisal
of Public Lands and Other Patrimonial Properties of the Government.”
[6]
Civil Code, Art. 420.chanrobles virtual law library
[7]
Id., Arts. 421 and 422.chanrobles virtual law library
[8]
II Tolentino, Civil Code of the Philippines 38 (1992).chanrobles virtual law library
[9]
Sec. 2 reads in part, “[a]ll lands of the public domain, waters,
minerals,
coal, petroleum, and other mineral oils, all forces of potential
energy,
fisheries, forests or timber, wildlife, flora and fauna, and other
natural
resources are owned by the State. With the exception of agricultural
lands,
all other natural resources shall not be alienated. The exploration,
development,
and utilization of natural resources shall be under the full control
and
supervision of the State. The State may directly undertake such
activities,
or it may enter into co-production, joint venture, or
production-sharing
agreements with Filipino citizens, or corporations or associations at
least
sixty per centum of whose capital is owned by such citizens. Such
agreements
may be for a period not exceeding twenty-five years, renewable for not
more than twenty-five years, and under such terms and conditions as may
be provided by law. In cases of water rights for irrigation, water
supply,
fisheries, or industrial uses other than the development of water
power,
beneficial use may be the measure and limit of the grant x x x,” while
Sec. 3 provides “[l]ands of the public domain are classified into
agricultural,
forest or timber, mineral lands, and national parks. Agricultural lands
of the public domain may be further classified by law according to the
uses to which they may be devoted. Alienable lands of the public domain
shall be limited to agricultural lands. Private corporations or
associations
may not hold such alienable lands of the public domain except by lease,
for a period not exceeding twenty-five years, renewable for not more
than
twenty-five years, and not to exceed one thousand hectares in area.
Citizens
of the Philippines may lease not more than five hundred hectares, or
acquire
not more than twelve hectares thereof by purchase, homestead, or grant.”
[10]
Tolentino, supra.chanrobles virtual law library
[11]
Montano v. Insular Government, 12 Phil. 572 (1909)chanrobles virtual law library
.
[12]
Manila Lodge No. 761 v. Court of Appeals, No. L-41001, 30 September
1976,
73 SCRA 162.
[13]
Decision, pp. 73-74.chanrobles virtual law library
[14]
Laurel v. Garcia, G.R. Nos. 92013 and 92047, 25 July 1990, 187 SCRA 797.
[15]
No. L-24440, 28 March 1968, 22 SCRA 1334, 1342.chanrobles virtual law library
[16]
See PD 1113 (1977) entitled “Granting the Construction and Development
Corporation of the Philippines (CDCP) a Franchise to Operate, Construct
and Maintain Toll Facilities in the North and South Luzon Toll
Expressways
and for Other Purposes.”chanrobles virtual law library
[17]
See Salas v. Jarencio, No. L-29788, 30 august 1972, 46 SCRA 734.chanrobles virtual law library
[18]
PD 1085 is entitled “Conveying the Land Reclaimed in the Foreshore and
Offshore of the Manila Bay (The Manila-Cavite Coastal Road Project) as
Property of the Public Estates Authority as well as Rights and Interest
with Assumption of Obligations in the Reclamation Contract Covering
Areas
of the Manila Bay between the Republic of the Philippines and the
Construction
and Development Corporation of the Philippines.”chanrobles virtual law library
[19]
Manila Lodge No. 761 v. Court of Appeals, supra, citing 15-A Words and
Phrases, p. 614, citing Mayor, etc. of Monroe vs. Quachita Parish, 17
So.
498, 499, 47 La. Ann. 1061.
[20]
See Note 12 at 181.chanrobles virtual law library
[21]
See Pindangan Agricultural Co., Inc. v. Dans, No. L-14591, 26 September
1962, 6 SCRA 14.
[22]
AO 348 is entitled “Directing the Public Estates Authority to Adopt
Measures
for the immediate implementation of the Boulevard 2000 Framework Plan
to
Alleviate the Problems of Traffic and Flooding in the Area during the
Rainy
Season.”
[23]
Manila Lodge No. 761 v. Court of Appeals, supra; see Montano v. Insular
Government, supra.
[24]
Ibid.chanrobles virtual law library
[25]
Manila Lodge No. 761 v. Court of Appeals, supra.
[26]
This provision reads: “Whenever real property of the Government
is
authorized by law to be conveyed, the deed of conveyance shall be
executed
in behalf of the government by the following x x x x (underscoring
supplied)”chanrobles virtual law library
[27]
See Note 14 at 812.chanrobles virtual law library
[28]
The Social Science I committee, University of the Philippines,
Foundations
of Behavioral Science: A Book of Readings 11 (1987).
[29]
Id. at 24.chanrobles virtual law library
[30]
See e.g. RA 7942 (1995) entitled “An Act Instituting a New System of
Mineral
Resources Exploration, Development, Utilization, and Conservation”
stating
“[a] mineral agreement shall grant to the contractor the exclusive
right
to conduct mining operations and to extract all mineral resources found
in the contract area.”
[31]
DENR AO 40-96, is entitled: “Revised Implementing Rules and
Regulations
of Republic Act No. 7942, otherwise known as the ‘Philippine Mining Act
of 1995.’”
[32]
The Local Government Code of 1991.chanrobles virtual law library
[33]
This is the Build, Operate and Transfer Law.chanrobles virtual law library
[34]
See 8 February 1990 and 26 March 1990, 12th Congress, Regular Session,
S.B. No. 1285, pp. 9-12, 32-33.
[35]
Republic Act 4566 (1965) entitled “An Act Creating the Philippine
Licensing
board for contractors, Prescribing Its Powers, Duties and Functions,
Providing
Funds Therefor, and for Other Purposes.”
[36]
Civil Code, Arts. 1347 and 1461.chanrobles virtual law library
[37]
EO 525 is entitled: “Designating the Public Estates Authority as the
Agency
Primarily Responsible for all Reclamation Projects.”
[38]
EO 654 is entitled: “Further Defining Certain Functions and Powers of
the
Public Estates Authority.”
[39]
CA 141 (1936), Sec. 59 which states: “The lands disposable under this
title
shall be classified as follows: (a) Lands reclaimed by the Government
by
dredging, filing, or other means x x x;” Act No. 2874 (1919), Sec. 56
which
provides: “The lands disposable under this title shall be classified as
follows: (a) Lands reclaimed by the Government by dredging, filing, or
other means x x x x”
[40]
DENR Manual for Land Disposition, p. 3.chanrobles virtual law library
[41]
Id. at 6.chanrobles virtual law library
[42]
DoJ Opinion No. 026, s. 1994, promulgated by Sec. of Justice Franklin
M.
Drilon.
[43]
Act 3038, Sec. 2 reads: “The sale or lease of the land referred to in
the
preceding section shall, if such land is agricultural, be made in the
manner
and subject to the limitations prescribed in chapter five and six,
respectively,
of said Public Land Act, and if it be classified differently in
conformity
with the provisions of chapter nine of said Act: Provided, however,
That
the land necessary for the public service shall be exempt from the
provision
of this Act.”chanrobles virtual law library
[44]
See also PD 461 (1974) entitled “Reorganizing the Department of
Agriculture
and
Natural
Resources into two Departments, Namely: Department of Agriculture and
Department
of Natural Resources, Amending for this Purpose Chapter I, Part VIII of
the Integrated Reorganization Plan.”
[45]
DENR Manual For Land Disposition at 5-6.chanrobles virtual law library
[46]
EO 525 (1979).chanrobles virtual law library
[47]
An Introduction to the Philosophy of Law 192 (1922). |