Declaration of Principles and State Policies

Art II Sec 16
The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.
OPOSA VS FACTORAN
In a broader sense, this petition bears upon the right of Filipinos to a
balanced and healthful ecology which the petitioners dramatically
associate with the twin concepts of "inter-generational responsibility" and
"inter-generational justice." Specifically, it touches on the issue of whether
the said petitioners have a cause of action to "prevent the misappropriation
or impairment" of Philippine rainforests and "arrest the unabated
hemorrhage of the country's vital life support systems and continued rape
of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed
before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC),
National Capital Judicial Region. The principal plaintiffs therein, now the
principal petitioners, are all minors duly represented and joined by their
respective parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit
corporation organized for the purpose of, inter alia, engaging in concerted
action geared for the protection of our environment and natural resources.
The original defendant was the Honorable Fulgencio S. Factoran, Jr., then
Secretary of the Department of Environment and Natural Resources
(DENR). His substitution in this petition by the new Secretary, the
Honorable Angel C. Alcala, was subsequently ordered upon proper motion
by the petitioners. 1 The complaint 2 was instituted as a taxpayers' class
suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the
Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of
the natural resource treasure that is the country's virgin tropical forests."
The same was filed for themselves and others who are equally concerned
about the preservation of said resource but are "so numerous that it is
impracticable to bring them all before the Court." The minors further
asseverate that they "represent their generation as well as generations yet
unborn." 4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other
persons acting in his behalf to

(1) Cancel all existing timber license agreements in the

country;
(2) Cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under
the premises." 5
The complaint starts off with the general averments that the Philippine
archipelago of 7,100 islands has a land area of thirty million (30,000,000)
hectares and is endowed with rich, lush and verdant rainforests in which
varied, rare and unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures
which have existed, endured and flourished since time immemorial;
scientific evidence reveals that in order to maintain a balanced and
healthful ecology, the country's land area should be utilized on the basis of
a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent
(46%) for agricultural, residential, industrial, commercial and other uses;
the distortion and disturbance of this balance as a consequence of
deforestation have resulted in a host of environmental tragedies, such as
(a) water shortages resulting from drying up of the water table, otherwise
known as the "aquifer," as well as of rivers, brooks and streams, (b)
salinization of the water table as a result of the intrusion therein of salt
water, incontrovertible examples of which may be found in the island of
Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the
consequential loss of soil fertility and agricultural productivity, with the
volume of soil eroded estimated at one billion (1,000,000,000) cubic
meters per annum approximately the size of the entire island of
Catanduanes, (d) the endangering and extinction of the country's unique,
rare and varied flora and fauna, (e) the disturbance and dislocation of
cultural communities, including the disappearance of the Filipino's
indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a
critical reduction in marine resource productivity, (g) recurrent spells of
drought as is presently experienced by the entire country, (h) increasing
velocity of typhoon winds which result from the absence of windbreakers,
(i) the floodings of lowlands and agricultural plains arising from the
absence of the absorbent mechanism of forests, (j) the siltation and
shortening of the lifespan of multi-billion peso dams constructed and
operated for the purpose of supplying water for domestic uses, irrigation
and the generation of electric power, and (k) the reduction of the earth's

capacity to process carbon dioxide gases which has led to perplexing and
catastrophic climatic changes such as the phenomenon of global warming,
otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of
continued and deforestation are so capable of unquestionable
demonstration that the same may be submitted as a matter of judicial
notice. This notwithstanding, they expressed their intention to present
expert witnesses as well as documentary, photographic and film evidence
in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some
sixteen (16) million hectares of rainforests constituting roughly
53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained
no more than 1.2 million hectares of said rainforests or four
per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares
of virgin old-growth rainforests are left, barely 2.8% of the
entire land mass of the Philippine archipelago and about 3.0
million hectares of immature and uneconomical secondary
growth forests.
11. Public records reveal that the defendant's, predecessors
have granted timber license agreements ('TLA's') to various
corporations to cut the aggregate area of 3.89 million hectares
for commercial logging purposes.
A copy of the TLA holders and the corresponding areas
covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000
hectares per annum or 25 hectares per hour nighttime,
Saturdays, Sundays and holidays included the Philippines

will be bereft of forest resources after the end of this ensuing

decade, if not earlier.
13. The adverse effects, disastrous consequences, serious
injury and irreparable damage of this continued trend of
deforestation to the plaintiff minor's generation and to
generations yet unborn are evident and incontrovertible. As a
matter of fact, the environmental damages enumerated in
paragraph 6 hereof are already being felt, experienced and
suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to
cut and deforest the remaining forest stands will work great
damage and irreparable injury to plaintiffs especially
plaintiff minors and their successors who may never see,
use, benefit from and enjoy this rare and unique natural
resource treasure.
This act of defendant constitutes a misappropriation and/or
impairment of the natural resource property he holds in trust
for the benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a
balanced and healthful ecology and are entitled to protection
by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with
the defendant's office. On March 2, 1990, plaintiffs served
upon defendant a final demand to cancel all logging permits in
the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto
attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the
existing TLA's to the continuing serious damage and extreme
prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel
the TLA's is an act violative of the rights of plaintiffs, especially
plaintiff minors who may be left with a country that is
desertified (sic), bare, barren and devoid of the wonderful

flora, fauna and indigenous cultures which the Philippines had

been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is
manifestly contrary to the public policy enunciated in the
Philippine Environmental Policy which, in pertinent part, states
that it is the policy of the State
(a) to create, develop, maintain and improve conditions under
which man and nature can thrive in productive and enjoyable
harmony with each other;
(b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that is
conductive to a life of dignity and well-being. (P.D. 1151, 6
June 1977)
20. Furthermore, defendant's continued refusal to cancel the
aforementioned TLA's is contradictory to the Constitutional
policy of the State to
a. effect "a more equitable distribution of opportunities, income
and wealth" and "make full and efficient use of natural
resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and
resources (sic)" (Section 14, Article XIV,id.);
d. "protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony
of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of
humankind the natural law and violative of plaintiffs' right
to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in
law other than the instant action to arrest the unabated
hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a

Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the
plaintiffs have no cause of action against him and (2) the issue raised by
the plaintiffs is a political question which properly pertains to the legislative
or executive branches of Government. In their 12 July 1990 Opposition to
the Motion, the petitioners maintain that (1) the complaint shows a clear
and unmistakable cause of action, (2) the motion is dilatory and (3) the
action presents a justiciable question as it involves the defendant's abuse
of discretion.
On 18 July 1991, respondent Judge issued an order granting the
aforementioned motion to dismiss. 7 In the said order, not only was the
defendant's claim that the complaint states no cause of action against
him and that it raises a political question sustained, the respondent
Judge further ruled that the granting of the relief prayed for would result in
the impairment of contracts which is prohibited by the fundamental law of
the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule
65 of the Revised Rules of Court and ask this Court to rescind and set
aside the dismissal order on the ground that the respondent Judge gravely
abused his discretion in dismissing the action. Again, the parents of the
plaintiffs-minors not only represent their children, but have also joined the
latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and
required the parties to submit their respective Memoranda after the Office
of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a
cause of action as it contains sufficient allegations concerning their right to
a sound environment based on Articles 19, 20 and 21 of the Civil Code
(Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating
the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine
Environmental Policy), Section 16, Article II of the 1987 Constitution
recognizing the right of the people to a balanced and healthful ecology, the
concept of generational genocide in Criminal Law and the concept of
man's inalienable right to self-preservation and self-perpetuation embodied
in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to
a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged

grave abuse of discretion in granting Timber License Agreements (TLAs)
to cover more areas for logging than what is available involves a judicial
question.
Anent the invocation by the respondent Judge of the Constitution's nonimpairment clause, petitioners maintain that the same does not apply in
this case because TLAs are not contracts. They likewise submit that even
if TLAs may be considered protected by the said clause, it is well settled
that they may still be revoked by the State when the public interest so
requires.
On the other hand, the respondents aver that the petitioners failed to
allege in their complaint a specific legal right violated by the respondent
Secretary for which any relief is provided by law. They see nothing in the
complaint but vague and nebulous allegations concerning an
"environmental right" which supposedly entitles the petitioners to the
"protection by the state in its capacity as parens patriae." Such allegations,
according to them, do not reveal a valid cause of action. They then
reiterate the theory that the question of whether logging should be
permitted in the country is a political question which should be properly
addressed to the executive or legislative branches of Government. They
therefore assert that the petitioners' resources is not to file an action to
court, but to lobby before Congress for the passage of a bill that would ban
logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that
the same cannot be done by the State without due process of law. Once
issued, a TLA remains effective for a certain period of time usually for
twenty-five (25) years. During its effectivity, the same can neither be
revised nor cancelled unless the holder has been found, after due notice
and hearing, to have violated the terms of the agreement or other forestry
laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative
of the requirements of due process.
Before going any further, We must first focus on some procedural matters.
Petitioners instituted Civil Case No. 90-777 as a class suit. The original
defendant and the present respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is indeed a class suit.
The subject matter of the complaint is of common and general interest not
just to several, but to all citizens of the Philippines. Consequently, since
the parties are so numerous, it, becomes impracticable, if not totally

impossible, to bring all of them before the court. We likewise declare that
the plaintiffs therein are numerous and representative enough to ensure
the full protection of all concerned interests. Hence, all the requisites for
the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules
of Court are present both in the said civil case and in the instant petition,
the latter being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors
assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for
others of their generation and for the succeeding generations, file a class
suit. Their personality to sue in behalf of the succeeding generations can
only be based on the concept of intergenerational responsibility insofar as
the right to a balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its
entirety. 9 Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and conservation of
the country's forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present as well
as future generations. 10 Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full
enjoyment of a balanced and healthful ecology. Put a little differently, the
minors' assertion of their right to a sound environment constitutes, at the
same time, the performance of their obligation to ensure the protection of
that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall
now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous
consideration and evaluation of the issues raised and arguments adduced
by the parties, We do not hesitate to find for the petitioners and rule
against the respondent Judge's challenged order for having been issued
with grave abuse of discretion amounting to lack of jurisdiction. The
pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint,
the Court cannot help but agree with the defendant. For
although we believe that plaintiffs have but the noblest of all

intentions, it (sic) fell short of alleging, with sufficient

definiteness, a specific legal right they are seeking to enforce
and protect, or a specific legal wrong they are seeking to
prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague
assumptions and vague conclusions based on unverified data.
In fine, plaintiffs fail to state a cause of action in its Complaint
against the herein defendant.
Furthermore, the Court firmly believes that the matter before it,
being impressed with political color and involving a matter of
public policy, may not be taken cognizance of by this Court
without doing violence to the sacred principle of "Separation of
Powers" of the three (3) co-equal branches of the
Government.
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs prayed
for by the plaintiffs, i.e., to cancel all existing timber license
agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount
to "impairment of contracts" abhored (sic) by the fundamental
law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to
allege with sufficient definiteness a specific legal right involved or a specific
legal wrong committed, and that the complaint is replete with vague
assumptions and conclusions based on unverified data. A reading of the
complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right
to a balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law.
Section 16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature.
This right unites with the right to health which is provided for in
the preceding section of the same article:

Sec. 15. The State shall protect and promote the right to
health of the people and instill health consciousness among
them.
While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of
Rights, it does not follow that it is less important than any of the civil and
political rights enumerated in the latter. Such a right belongs to a different
category of rights altogether for it concerns nothing less than selfpreservation and self-perpetuation aptly and fittingly stressed by the
petitioners the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights need
not even be written in the Constitution for they are assumed to exist from
the inception of humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers
that unless the rights to a balanced and healthful ecology and to health are
mandated as state policies by the Constitution itself, thereby highlighting
their continuing importance and imposing upon the state a solemn
obligation to preserve the first and protect and advance the second, the
day would not be too far when all else would be lost not only for the
present generation, but also for those to come generations which stand
to inherit nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative
duty to refrain from impairing the environment. During the debates on this
right in one of the plenary sessions of the 1986 Constitutional Commission,
the following exchange transpired between Commissioner Wilfrido
Villacorta and Commissioner Adolfo Azcuna who sponsored the section in
question:
MR. VILLACORTA:
Does this section mandate the State to provide
sanctions against all forms of pollution air,
water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic)
environment necessarily carries with it the
correlative duty of not impairing the same and,
therefore, sanctions may be provided for
impairment of environmental balance. 12

The said right implies, among many other things, the judicious
management and conservation of the country's forests.
Without such forests, the ecological or environmental balance would
be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology
and the right to health, as well as the other related provisions of the
Constitution concerning the conservation, development and utilization of
the country's natural resources, 13 then President Corazon C. Aquino
promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which
expressly mandates that the Department of Environment and Natural
Resources "shall be the primary government agency responsible for the
conservation, management, development and proper use of the country's
environment and natural resources, specifically forest and grazing lands,
mineral, resources, including those in reservation and watershed areas,
and lands of the public domain, as well as the licensing and regulation of
all natural resources as may be provided for by law in order to ensure
equitable sharing of the benefits derived therefrom for the welfare of the
present and future generations of Filipinos." Section 3 thereof makes the
following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the
policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of the
country's forest, mineral, land, off-shore areas and other
natural resources, including the protection and enhancement
of the quality of the environment, and equitable access of the
different segments of the population to the development and
the use of the country's natural resources, not only for the
present generation but for future generations as well. It is also
the policy of the state to recognize and apply a true value
system including social and environmental cost implications
relative to their utilization, development and conservation of
our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987, 15specifically in Section 1 thereof which
reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure, for
the benefit of the Filipino people, the full exploration and
development as well as the judicious disposition, utilization,

management, renewal and conservation of the country's

forest, mineral, land, waters, fisheries, wildlife, off-shore areas
and other natural resources, consistent with the necessity of
maintaining a sound ecological balance and protecting and
enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such
natural resources equitably accessible to the different
segments of the present as well as future generations.
(2) The State shall likewise recognize and apply a true value
system that takes into account social and environmental cost
implications relative to the utilization, development and
conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound
ecological balance and protecting and enhancing the quality of the
environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular
reference to the fact of the agency's being subject to law and higher
authority. Said section provides:
Sec. 2. Mandate. (1) The Department of Environment and
Natural Resources shall be primarily responsible for the
implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of
carrying out the State's constitutional mandate to control and
supervise the exploration, development, utilization, and
conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the
objectives which will serve as the bases for policy formulation, and have
defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the
"environmental right" of the present and future generations. On 6 June
1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former "declared a
continuing policy of the State (a) to create, develop, maintain and improve
conditions under which man and nature can thrive in productive and
enjoyable harmony with each other, (b) to fulfill the social, economic and
other requirements of present and future generations of Filipinos, and (c)

to insure the attainment of an environmental quality that is conducive to a

life of dignity and well-being." 16 As its goal, it speaks of the
"responsibilities of each generation as trustee and guardian of the
environment for succeeding generations." 17 The latter statute, on the other
hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a
balanced and healthful ecology is as clear as the DENR's duty under its
mandate and by virtue of its powers and functions under E.O. No. 192 and
the Administrative Code of 1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or
obligation to respect or protect the same gives rise to a cause of action.
Petitioners maintain that the granting of the TLAs, which they claim was
done with grave abuse of discretion, violated their right to a balanced and
healthful ecology; hence, the full protection thereof requires that no further
TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal
right or rights of the other; and its essential elements are legal
right of the plaintiff, correlative obligation of the defendant, and
act or omission of the defendant in violation of said legal
right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the
ground that the complaint fails to state a cause of action, 19 the question
submitted to the court for resolution involves the sufficiency of the facts
alleged in the complaint itself. No other matter should be considered;
furthermore, the truth of falsity of the said allegations is beside the point for
the truth thereof is deemed hypothetically admitted. The only issue to be
resolved in such a case is: admitting such alleged facts to be true, may the
court render a valid judgment in accordance with the prayer in the
complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule
that the judiciary should "exercise the utmost care and circumspection in
passing upon a motion to dismiss on the ground of the absence thereof
[cause of action] lest, by its failure to manifest a correct appreciation of the
facts alleged and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a blot on the
legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the

statements under the introductory affirmative allegations, as well as the
specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their rights.
On the basis thereof, they may thus be granted, wholly or partly, the reliefs
prayed for. It bears stressing, however, that insofar as the cancellation of
the TLAs is concerned, there is the need to implead, as party defendants,
the grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political
question. Policy formulation or determination by the executive or legislative
branches of Government is not squarely put in issue. What is principally
involved is the enforcement of a right vis-a-vis policies already formulated
and expressed in legislation. It must, nonetheless, be emphasized that the
political question doctrine is no longer, the insurmountable obstacle to the
exercise of judicial power or the impenetrable shield that protects
executive and legislative actions from judicial inquiry or review. The
second paragraph of section 1, Article VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr.
Justice Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept
of judicial power, involving the settlement of conflicting rights
as conferred as law. The second part of the authority
represents a broadening of judicial power to enable the courts
of justice to review what was before forbidden territory, to wit,
the discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon even
the wisdom of the decisions of the executive and the
legislature and to declare their acts invalid for lack or excess
of jurisdiction because tainted with grave abuse of discretion.
The catch, of course, is the meaning of "grave abuse of

discretion," which is a very elastic phrase that can expand or

contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court,
noted:
In the case now before us, the jurisdictional objection
becomes even less tenable and decisive. The reason is that,
even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from
revolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question.
Article VII, Section 1, of the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the
non-impairment of contracts clause found in the Constitution. The court a
quo declared that:
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs prayed
for by the plaintiffs, i.e., to cancel all existing timber license
agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount
to "impairment of contracts" abhored (sic) by the fundamental
law. 24
We are not persuaded at all; on the contrary, We are amazed, if not
shocked, by such a sweeping pronouncement. In the first place, the
respondent Secretary did not, for obvious reasons, even invoke in his
motion to dismiss the non-impairment clause. If he had done so, he would
have acted with utmost infidelity to the Government by providing undue
and unwarranted benefits and advantages to the timber license holders
because he would have forever bound the Government to strictly respect
the said licenses according to their terms and conditions regardless of
changes in policy and the demands of public interest and welfare. He was
aware that as correctly pointed out by the petitioners, into every timber
license must be read Section 20 of the Forestry Reform Code (P.D. No.
705) which provides:
. . . Provided, That when the national interest so requires, the
President may amend, modify, replace or rescind any

contract, concession, permit, licenses or any other form of

privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by
executive action. It is not a contract, property or a property right
protested by the due process clause of the Constitution. In Tan vs.
Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State
regulates the utilization and disposition of forest resources to
the end that public welfare is promoted. A timber license is not
a contract within the purview of the due process clause; it is
only a license or privilege, which can be validly withdrawn
whenever dictated by public interest or public welfare as in this
case.
A license is merely a permit or privilege to do what otherwise
would be unlawful, and is not a contract between the authority,
federal, state, or municipal, granting it and the person to whom
it is granted; neither is it property or a property right, nor does
it create a vested right; nor is it taxation (37 C.J. 168). Thus,
this Court held that the granting of license does not create
irrevocable rights, neither is it property or property rights
(People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs.
Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the
principal instruments by which the State regulates the
utilization and disposition of forest resources to the end that
public welfare is promoted. And it can hardly be gainsaid that
they merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the
forest products therein. They may be validly amended,
modified, replaced or rescinded by the Chief Executive when
national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548,
October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which
reads:
Sec. 10. No law impairing, the obligation of contracts shall be
passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are
contracts, the instant case does not involve a law or even an executive
issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause. This is because by
its very nature and purpose, such as law could have only been passed in
the exercise of the police power of the state for the purpose of advancing
the right of the people to a balanced and healthful ecology, promoting their
health and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is
not meant to be absolute. The same is understood to be
subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In other
words, the constitutional guaranty of non-impairment of
obligations of contract is limited by the exercise of the police
power of the State, in the interest of public health, safety,
moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New
York, 29 quoted in Philippine American Life Insurance Co. vs. Auditor
General, 30 to wit:
Under our form of government the use of property and the
making of contracts are normally matters of private and not of
public concern. The general rule is that both shall be free of
governmental interference. But neither property rights nor
contract rights are absolute; for government cannot exist if the
citizen may at will use his property to the detriment of his
fellows, or exercise his freedom of contract to work them
harm. Equally fundamental with the private right is that of the
public to regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the
state. 31
Finally, it is difficult to imagine, as the trial court did, how the nonimpairment clause could apply with respect to the prayer to enjoin the
respondent Secretary from receiving, accepting, processing, renewing or
approving new timber licenses for, save in cases of renewal, no contract
would have as of yet existed in the other instances. Moreover, with respect
to renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby
GRANTED, and the challenged Order of respondent Judge of 18 July 1991
dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defendants the holders or
grantees of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE
INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL, respondents.
DECISION
BELLOSILLO, J.:
The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the
grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall give preference to qualified Filipinos,[1] is
invoked by petitioner in its bid to acquire 51% of the shares of the Manila
Hotel Corporation (MHC) which owns the historic Manila Hotel. Opposing,
respondents maintain that the provision is not self-executing but requires
an implementing legislation for its enforcement. Corollarily, they ask
whether the 51% shares form part of the national economy and patrimony
covered by the protective mantle of the Constitution.
The controversy arose when respondent Government Service
Insurance System (GSIS), pursuant to the privatization program of the
Philippine Government under Proclamation No. 50 dated 8 December
1986, decided to sell through public bidding 30% to 51% of the issued and
outstanding shares of respondent MHC. The winning bidder, or the

eventual strategic partner, is to provide management expertise and/or an

international marketing/reservation system, and financial support to
strengthen the profitability and performance of the Manila Hotel.[2] In a
close bidding held on 18 September 1995 only two (2) bidders participated:
petitioner Manila Prince Hotel Corporation, a Filipino corporation, which
offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share,
and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel
operator, which bid for the same number of shares at P44.00 per share,
or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS
state I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC 1. The Highest Bidder must comply with the conditions set forth below by
October 23, 1995 (reset to November 3, 1995) or the Highest Bidder will
lose the right to purchase the Block of Shares and GSIS will instead offer
the Block of Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other type of contract specified by the Highest Bidder in its
strategic plan for the Manila Hotel x x x x
b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS x x x x
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic Partner
after the following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than
October 23, 1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on
Privatization)/ OGCC (Office of the Government Corporate Counsel) are
obtained.[3]
Pending the declaration of Renong Berhard as the winning
bidder/strategic partner and the execution of the necessary contracts,
petitioner in a letter to respondent GSIS dated 28 September 1995

matched the bid price of P44.00 per share tendered by Renong

Berhad.[4] In a subsequent letter dated 10 October 1995 petitioner sent a
managers check issued by Philtrust Bank for Thirty-three Million Pesos
(P33,000,000.00) as Bid Security to match the bid of the Malaysian Group,
Messrs. Renong Berhad x x x x[5] which respondent GSIS refused to
accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of the
MHC may be hastened by respondent GSIS and consummated with
Renong Berhad, petitioner came to this Court on prohibition and
mandamus. On 18 October 1995 the Court issued a temporary restraining
order enjoining respondents from perfecting and consummating the sale to
the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En
Banc after it was referred to it by the First Division. The case was then set
for oral arguments with former Chief Justice Enrique M. Fernando and Fr.
Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the
1987 Constitution and submits that the Manila Hotel has been identified
with the Filipino nation and has practically become a historical monument
which reflects the vibrancy of Philippine heritage and culture. It is a proud
legacy of an earlier generation of Filipinos who believed in the nobility and
sacredness of independence and its power and capacity to release the full
potential of the Filipino people. To all intents and purposes, it has become
a part of the national patrimony.[6] Petitioner also argues that since 51% of
the shares of the MHC carries with it the ownership of the business of the
hotel which is owned by respondent GSIS, a government-owned and
controlled corporation, the hotel business of respondent GSIS being a part
of the tourism industry is unquestionably a part of the national
economy. Thus, any transaction involving 51% of the shares of stock of
the MHC is clearly covered by the term national economy, to which Sec.
10, second par., Art. XII, 1987 Constitution, applies.[7]
It is also the thesis of petitioner that since Manila Hotel is part of the
national patrimony and its business also unquestionably part of the
national economy petitioner should be preferred after it has matched the
bid offer of the Malaysian firm. For the bidding rules mandate that if for
any reason, the Highest Bidder cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share.[8]

Respondents except. They maintain that: First, Sec. 10, second par.,
Art. XII, of the 1987 Constitution is merely a statement of principle and
policy since it is not a self-executing provision and requires implementing
legislation(s) x x x x Thus, for the said provision to operate, there must be
existing laws to lay down conditions under which business may be
done.[9]
Second, granting that this provision is self-executing, Manila Hotel
does not fall under the term national patrimony which only refers to 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 all marine wealth in its territorial sea, and exclusive marine
zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987
Constitution. According to respondents, while petitioner speaks of the
guests who have slept in the hotel and the events that have transpired
therein which make the hotel historic, these alone do not make the hotel
fall under the patrimony of the nation. What is more, the mandate of the
Constitution is addressed to the State, not to respondent GSIS which
possesses a personality of its own separate and distinct from the
Philippines as a State.
Third, granting that the Manila Hotel forms part of the national
patrimony, the constitutional provision invoked is still inapplicable since
what is being sold is only 51% of the outstanding shares of the corporation,
not the hotel building nor the land upon which the building
stands. Certainly, 51% of the equity of the MHC cannot be considered part
of the national patrimony. Moreover, if the disposition of the shares of the
MHC is really contrary to the Constitution, petitioner should have
questioned it right from the beginning and not after it had lost in the
bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the
bidding rules which provides that if for any reason, the Highest Bidder
cannot be awarded the Block of Shares, GSIS may offer this to the other
Qualified Bidders that have validly submitted bids provided that these
Qualified Bidders are willing to match the highest bid in terms of price per
share, is misplaced. Respondents postulate that the privilege of submitting
a matching bid has not yet arisen since it only takes place if for any
reason, the Highest Bidder cannot be awarded the Block of Shares. Thus
the submission by petitioner of a matching bid is premature since Renong
Berhad could still very well be awarded the block of shares and the
condition giving rise to the exercise of the privilege to submit a matching
bid had not yet taken place.

Finally, the prayer for prohibition grounded on grave abuse of

discretion should fail since respondent GSIS did not exercise its discretion
in a capricious, whimsical manner, and if ever it did abuse its discretion it
was not so patent and gross as to amount to an evasion of a positive duty
or a virtual refusal to perform a duty enjoined by law. Similarly, the petition
for mandamus should fail as petitioner has no clear legal right to what it
demands and respondents do not have an imperative duty to perform the
act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious,
absolute and unalterable except by the authority from which it
emanates. It has been defined as the fundamental and paramount law of
the nation.[10] It prescribes the permanent framework of a system of
government, assigns to the different departments their respective powers
and duties, and establishes certain fixed principles on which government is
founded. The fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in accordance with
which all private rights must be determined and all public authority
administered.[11] Under the doctrine of constitutional supremacy, if a law or
contract violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into
by private persons for private purposes is null and void and without any
force and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed written in every
statute and contract.
Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and
carry out the purposes of the framers who merely establish an outline of
government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of
citizens.[12] A provision which lays down a general principle, such as those
found in Art. II of the 1987 Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes operative without the aid
of supplementary or enabling legislation, or that which supplies sufficient
rule by means of which the right it grants may be enjoyed or protected, is
self-executing. Thus a constitutional provision is self-executing if the
nature and extent of the right conferred and the liability imposed are fixed
by the constitution itself, so that they can be determined by an examination
and construction of its terms, and there is no language indicating that the
subject is referred to the legislature for action.[13]

As against constitutions of the past, modern constitutions have been

generally drafted upon a different principle and have often become in effect
extensive codes of laws intended to operate directly upon the people in a
manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a
legislative body. Hence, unless it is expressly provided that a legislative
act is necessary to enforce a constitutional mandate, the presumption now
is that all provisions of the constitution are self-executing. If the
constitutional provisions are treated as requiring legislation instead of selfexecuting, the legislature would have the power to ignore and practically
nullify the mandate of the fundamental law.[14] This can be
cataclysmic. That is why the prevailing view is, as it has always been, that
x x x x in case of doubt, the Constitution should be considered selfexecuting rather than non-self-executing x x x x Unless the contrary is
clearly intended, the provisions of the Constitution should be considered
self-executing, as a contrary rule would give the legislature discretion to
determine when, or whether, they shall be effective. These provisions
would be subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the needed
implementing statute.[15]
Respondents argue that Sec. 10, second par., Art. XII, of the 1987
Constitution is clearly not self-executing, as they quote from discussions
on the floor of the 1986 Constitutional Commission MR. RODRIGO. Madam President, I am asking this question as
the Chairman of the Committee on Style. If the wording of
PREFERENCE is given to QUALIFIED FILIPINOS, can it be
understood as a preference to qualified Filipinos vis-avis Filipinos who are not qualified. So, why do we not make it
clear? To qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner
Rodrigo? Is it to remove the word QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED
FILIPINOS as against whom? As against aliens or over aliens
?
MR. NOLLEDO. Madam President, I think that is understood. We
use the word QUALIFIED because the existing laws or
prospective laws will always lay down conditions under which
business may be done. For example, qualifications on capital,

qualifications on the setting up of other financial structures, et

cetera (underscoring supplied by respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.[16]
Quite apparently, Sec. 10, second par., of Art XII is couched in such a
way as not to make it appear that it is non-self-executing but simply for
purposes of style. But, certainly, the legislature is not precluded from
enacting further laws to enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor details may be
left to the legislature without impairing the self-executing nature of
constitutional provisions.
In self-executing constitutional provisions, the legislature may still
enact legislation to facilitate the exercise of powers directly granted by the
constitution, further the operation of such a provision, prescribe a practice
to be used for its enforcement, provide a convenient remedy for the
protection of the rights secured or the determination thereof, or place
reasonable safeguards around the exercise of the right. The mere fact that
legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing constitutional provision does not render such a
provision ineffective in the absence of such legislation. The omission from
a constitution of any express provision for a remedy for enforcing a right or
liability is not necessarily an indication that it was not intended to be selfexecuting. The rule is that a self-executing provision of the constitution
does not necessarily exhaust legislative power on the subject, but any
legislation must be in harmony with the constitution, further the exercise of
constitutional right and make it more available.[17] Subsequent legislation
however does not necessarily mean that the subject constitutional
provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10,
second par., of Art. XII is implied from the tenor of the first and third
paragraphs of the same section which undoubtedly are not selfexecuting.[18] The argument is flawed. If the first and third paragraphs are
not self-executing because Congress is still to enact measures to
encourage the formation and operation of enterprises fully owned by
Filipinos, as in the first paragraph, and the State still needs legislation to
regulate and exercise authority over foreign investments within its national
jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the
second paragraph can only be self-executing as it does not by its language
require any legislation in order to give preference to qualified Filipinos in
the grant of rights, privileges and concessions covering the national

economy and patrimony. A constitutional provision may be self-executing

in one part and non-self-executing in another.[19]
Even the cases cited by respondents holding that certain constitutional
provisions are merely statements of principles and policies, which are
basically not self-executing and only placed in the Constitution as moral
incentives to legislation, not as judicially enforceable rights - are simply not
in
point. Basco
v.
Philippine
Amusements
and
Gaming
[20]
Corporation speaks of constitutional provisions on personal
dignity,[21] the sanctity of family life,[22] the vital role of the youth in nationbuilding,[23] the promotion of social justice,[24] and the values of
education.[25] Tolentino v. Secretary of Finance[26] refers to constitutional
provisions
on
social
justice
and
human
rights[27] and
on
education.[28] Lastly, Kilosbayan, Inc. v. Morato[29] cites provisions on the
promotion of general welfare,[30] the sanctity of family life,[31] the vital role of
the youth in nation-building[32] and the promotion of total human liberation
and development.[33] A reading of these provisions indeed clearly shows
that they are not judicially enforceable constitutional rights but merely
guidelines for legislation. The very terms of the provisions manifest that
they are only principles upon which legislations must be based. Res ipsa
loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987
Constitution is a mandatory, positive command which is complete in itself
and which needs no further guidelines or implementing laws or rules for its
enforcement. From its very words the provision does not require any
legislation to put it in operation. It is per se judicially enforceable. When
our Constitution mandates that [i]n the grant of rights, privileges, and
concessions covering national economy and patrimony, the State shall
give preference to qualified Filipinos, it means just that - qualified Filipinos
shall be preferred. And when our Constitution declares that a right exists
in certain specified circumstances an action may be maintained to enforce
such right notwithstanding the absence of any legislation on the subject;
consequently, if there is no statute especially enacted to enforce such
constitutional right, such right enforces itself by its own inherent potency
and puissance, and from which all legislations must take their
bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a
Constitutional Commission[34] explains -

member

of

the

1986

The patrimony of the Nation that should be conserved and

developed refers not only to our rich natural resources but also to
the cultural heritage of our race. It also refers to our intelligence in

arts, sciences and letters. Therefore, we should develop not only

our lands, forests, mines and other natural resources but also the
mental ability or faculty of our people.
We
agree. In
its
plain
and
ordinary
meaning,
the
[35]
term patrimony pertains to heritage. When the Constitution speaks
of national patrimony, it refers not only to the natural resources of the
Philippines, as the Constitution could have very well used the term natural
resources, but also to the cultural heritage of the Filipinos.
Manila Hotel has become a landmark - a living testimonial of Philippine
heritage. While it was restrictively an American hotel when it first opened
in 1912, it immediately evolved to be truly Filipino. Formerly a concourse
for the elite, it has since then become the venue of various significant
events which have shaped Philippine history. It was called the Cultural
Center of the 1930s. It was the site of the festivities during the
inauguration of the Philippine Commonwealth. Dubbed as the Official
Guest House of the Philippine Government it plays host to dignitaries and
official visitors who are accorded the traditional Philippine hospitality.[36]
The history of the hotel has been chronicled in the book The Manila
Hotel: The Heart and Memory of a City.[37] During World War II the hotel
was converted by the Japanese Military Administration into a military
headquarters. When the American forces returned to recapture Manila the
hotel was selected by the Japanese together with Intramuros as the two
(2) places for their final stand. Thereafter, in the 1950s and 1960s, the
hotel became the center of political activities, playing host to almost every
political convention. In 1970 the hotel reopened after a renovation and
reaped numerous international recognitions, an acknowledgment of the
Filipino talent and ingenuity. In 1986 the hotel was the site of a
failed coup d etat where an aspirant for vice-president was proclaimed
President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to
the triumphs and failures, loves and frustrations of the Filipinos; its
existence is impressed with public interest; its own historicity associated
with our struggle for sovereignty, independence and nationhood. Verily,
Manila Hotel has become part of our national economy and patrimony. For
sure, 51% of the equity of the MHC comes within the purview of the
constitutional shelter for it comprises the majority and controlling stock, so
that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be
disassociated from the hotel and the land on which the hotel edifice
stands. Consequently, we cannot sustain respondents claim that

the Filipino First Policy provision is not applicable since what is being sold
is only 51% of the outstanding shares of the corporation, not the Hotel
building nor the land upon which the building stands.[38]
The argument is pure sophistry. The term qualified Filipinos as used in
our Constitution also includes corporations at least 60% of which is owned
by Filipinos. This is very clear from the proceedings of the 1986
Constitutional Commission THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the
Nolledo amendment. And the amendment would consist in
substituting the words QUALIFIED FILIPINOS with the
following:
CITIZENS
OF
THE
PHILIPPINES
OR
CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR
CONTROLLING STOCK IS WHOLLY OWNED BY SUCH
CITIZENS.
xxxx
MR. MONSOD. Madam President, apparently the proponent is
agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it
preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual
Filipino. What about a corporation wholly owned by Filipino
citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we
say that the preference should only be 100-percent Filipino.
MR. DAVIDE. I want to get that meaning clear because
QUALIFIED FILIPINOS may refer only to individuals and not
to juridical personalities or entities.
MR. MONSOD. We agree, Madam President.[39]
xxxx
MR. RODRIGO. Before we vote, may I request that the
amendment be read again.
MR. NOLLEDO. The amendment will read: IN THE GRANT OF
RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE

NATIONAL ECONOMY AND PATRIMONY, THE STATE

SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. And
the word Filipinos here, as intended by the proponents, will
include not only individual Filipinos but also Filipino-controlled
entities or entities fully-controlled by Filipinos.[40]
The phrase preference to qualified Filipinos was explained thus MR. FOZ. Madam President, I would like to request Commissioner
Nolledo to please restate his amendment so that I can ask a
question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY
AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE
TO QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign
enterprise is qualified and a Filipino enterprise is also qualified,
will the Filipino enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than
the Filipino enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.[41]
Expounding further on the Filipino First Policy provision Commissioner
Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will
be SHALL - THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS. This embodies the so-called Filipino
First policy. That means that Filipinos should be given
preference in the grant of concessions, privileges and rights
covering the national patrimony.[42]
The exchange of views in the sessions of the Constitutional
Commission regarding the subject provision was still further clarified by
Commissioner Nolledo[43] Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all
economic concerns. It is better known as the FILIPINO FIRST Policy x x x
x This provision was never found in previous Constitutions x x x x

The term qualified Filipinos simply means that preference shall be given
to those citizens who can make a viable contribution to the common good,
because of credible competence and efficiency. It certainly does NOT
mandate the pampering and preferential treatment to Filipino citizens or
organizations that are incompetent or inefficient, since such an
indiscriminate preference would be counterproductive and inimical to the
common good.
In the granting of economic rights, privileges, and concessions, when a
choice has to be made between a qualified foreigner and a qualified
Filipino, the latter shall be chosen over the former.
Lastly, the word qualified is also determinable. Petitioner was so
considered by respondent GSIS and selected as one of the qualified
bidders. It was pre-qualified by respondent GSIS in accordance with its
own guidelines so that the sole inference here is that petitioner has been
found to be possessed of proven management expertise in the hotel
industry, or it has significant equity ownership in another hotel company, or
it has an overall management and marketing proficiency to successfully
operate the Manila Hotel.[44]
The penchant to try to whittle away the mandate of the Constitution by
arguing that the subject provision is not self-executory and requires
implementing legislation is quite disturbing. The attempt to violate a clear
constitutional provision - by the government itself - is only too
distressing. To adopt such a line of reasoning is to renounce the duty to
ensure faithfulness to the Constitution. For, even some of the provisions of
the Constitution which evidently need implementing legislation have
juridical life of their own and can be the source of a judicial remedy. We
cannot simply afford the government a defense that arises out of the failure
to enact further enabling, implementing or guiding legislation. In fine, the
discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is
apt The executive department has a constitutional duty to implement laws,
including the Constitution, even before Congress acts - provided that there
are discoverable legal standards for executive action. When the executive
acts, it must be guided by its own understanding of the constitutional
command and of applicable laws. The responsibility for reading and
understanding the Constitution and the laws is not the sole prerogative of
Congress. If it were, the executive would have to ask Congress, or
perhaps the Court, for an interpretation every time the executive is
confronted by a constitutional command. That is not how constitutional
government operates.[45]

Respondents further argue that the constitutional provision is

addressed to the State, not to respondent GSIS which by itself possesses
a separate and distinct personality. This argument again is at best
specious. It is undisputed that the sale of 51% of the MHC could only be
carried out with the prior approval of the State acting through respondent
Committee on Privatization. As correctly pointed out by Fr. Joaquin G.
Bernas, S.J., this fact alone makes the sale of the assets of respondents
GSIS and MHC a state action. In constitutional jurisprudence, the acts of
persons distinct from the government are considered state action
covered by the Constitution (1) when the activity it engages in is a public
function; (2) when the government is so significantly involved with the
private actor as to make the government responsible for his action; and,
(3) when the government has approved or authorized the action. It is
evident that the act of respondent GSIS in selling 51% of its share in
respondent MHC comes under the second and third categories of state
action. Without doubt therefore the transaction, although entered into by
respondent GSIS, is in fact a transaction of the State and therefore subject
to the constitutional command.[46]
When the Constitution addresses the State it refers not only to the
people but also to the government as elements of the State. After all,
government is composed of three (3) divisions of power - legislative,
executive and judicial. Accordingly, a constitutional mandate directed to
the State is correspondingly directed to the three (3) branches of
government. It is undeniable that in this case the subject constitutional
injunction is addressed among others to the Executive Department and
respondent GSIS, a government instrumentality deriving its authority from
the State.
It should be stressed that while the Malaysian firm offered the higher
bid it is not yet the winning bidder. The bidding rules expressly provide
that the highest bidder shall only be declared the winning bidder after it has
negotiated and executed the necessary contracts, and secured the
requisite approvals. Since the Filipino First Policy provision of the
Constitution bestows preference onqualified Filipinos the mere tending of
the highest bid is not an assurance that the highest bidder will be declared
the winning bidder. Resultantly, respondents are not bound to make the
award yet, nor are they under obligation to enter into one with the highest
bidder. For in choosing the awardee respondents are mandated to abide
by the dictates of the 1987 Constitution the provisions of which are
presumed to be known to all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject
constitutional provision is, as it should be, impliedly written in the bidding

rules issued by respondent GSIS, lest the bidding rules be nullified for
being violative of the Constitution. It is a basic principle in constitutional
law that all laws and contracts must conform with the fundamental law of
the land. Those which violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any
reason the Highest Bidder cannot be awarded the Block of Shares, GSIS
may offer this to other Qualified Bidders that have validly submitted bids
provided that these Qualified Bidders are willing to match the highest bid in
terms of price per share.[47] Certainly, the constitutional mandate itself
is reason enough not to award the block of shares immediately to the
foreign bidder notwithstanding its submission of a higher, or even the
highest, bid. In fact, we cannot conceive of a stronger reason than the
constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a
public bidding concerning the grant of rights, privileges and concessions
covering the national economy and patrimony, thereby exceeding the bid
of a Filipino, there is no question that the Filipino will have to be allowed to
match the bid of the foreign entity. And if the Filipino matches the bid of a
foreign firm the award should go to the Filipino. It must be so if we are to
give life and meaning to the Filipino First Policy provision of the 1987
Constitution. For, while this may neither be expressly stated nor
contemplated in the bidding rules, the constitutional fiat is omnipresent to
be simply disregarded. To ignore it would be to sanction a perilous skirting
of the basic law.
This Court does not discount the apprehension that this policy may
discourage foreign investors. But the Constitution and laws of the
Philippines are understood to be always open to public scrutiny. These
are given factors which investors must consider when venturing into
business in a foreign jurisdiction. Any person therefore desiring to do
business in the Philippines or with any of its agencies or instrumentalities
is presumed to know his rights and obligations under the Constitution and
the laws of the forum.
The argument of respondents that petitioner is now estopped from
questioning the sale to Renong Berhad since petitioner was well aware
from the beginning that a foreigner could participate in the bidding is
meritless. Undoubtedly, Filipinos and foreigners alike were invited to the
bidding. But foreigners may be awarded the sale only if no Filipino
qualifies, or if the qualified Filipino fails to match the highest bid tendered
by the foreign entity. In the case before us, while petitioner was already
preferred at the inception of the bidding because of the constitutional
mandate, petitioner had not yet matched the bid offered by Renong

Berhad. Thus it did not have the right or personality then to compel
respondent GSIS to accept its earlier bid. Rightly, only after it had
matched the bid of the foreign firm and the apparent disregard by
respondent GSIS of petitioners matching bid did the latter have a cause of
action.
Besides, there is no time frame for invoking the constitutional
safeguard unless perhaps the award has been finally made. To insist on
selling the Manila Hotel to foreigners when there is a Filipino group willing
to match the bid of the foreign group is to insist that government be treated
as any other ordinary market player, and bound by its mistakes or gross
errors of judgment, regardless of the consequences to the Filipino
people. The miscomprehension of the Constitution is regrettable. Thus
we would rather remedy the indiscretion while there is still an opportunity
to do so than let the government develop the habit of forgetting that the
Constitution lays down the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong
Berhad pursuant to the bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of shares of MHC and to
execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with
the Constitution as well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided in the bidding rules
after the latter has matched the bid of the Malaysian firm clearly constitutes
grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is
embodied in the 1987 Constitution not merely to be used as a guideline for
future legislation but primarily to be enforced; so must it be enforced. This
Court as the ultimate guardian of the Constitution will never shun, under
any reasonable circumstance, the duty of upholding the majesty of the
Constitution which it is tasked to defend. It is worth emphasizing that it is
not the intention of this Court to impede and diminish, much less
undermine, the influx of foreign investments. Far from it, the Court
encourages and welcomes more business opportunities but avowedly
sanctions the preference for Filipinos whenever such preference is
ordained by the Constitution. The position of the Court on this matter
could have not been more appropriately articulated by Chief Justice
Narvasa As scrupulously as it has tried to observe that it is not its function to
substitute its judgment for that of the legislature or the executive about the
wisdom and feasibility of legislation economic in nature, the Supreme

Court has not been spared criticism for decisions perceived as obstacles to
economic progress and development x x x x in connection with a
temporary injunction issued by the Courts First Division against the sale of
the Manila Hotel to a Malaysian Firm and its partner, certain statements
were published in a major daily to the effect that that injunction again
demonstrates that the Philippine legal system can be a major obstacle to
doing business here.
Let it be stated for the record once again that while it is no business of the
Court to intervene in contracts of the kind referred to or set itself up as the
judge of whether they are viable or attainable, it is its bounden duty to
make sure that they do not violate the Constitution or the laws, or are not
adopted or implemented with grave abuse of discretion amounting to lack
or excess of jurisdiction. It will never shirk that duty, no matter how
buffeted by winds of unfair and ill-informed criticism.[48]
Privatization of a business asset for purposes of enhancing its
business viability and preventing further losses, regardless of the character
of the asset, should not take precedence over non-material values. A
commercial, nay even a budgetary, objective should not be pursued at the
expense of national pride and dignity. For the Constitution enshrines
higher and nobler non-material values. Indeed, the Court will always defer
to the Constitution in the proper governance of a free society; after all,
there is nothing so sacrosanct in any economic policy as to draw itself
beyond judicial review when the Constitution is involved.[49]
Nationalism is inherent in the very concept of the Philippines being a
democratic and republican state, with sovereignty residing in the Filipino
people and from whom all government authority emanates. In nationalism,
the happiness and welfare of the people must be the goal. The nationstate can have no higher purpose. Any interpretation of any constitutional
provision must adhere to such basic concept. Protection of foreign
investments, while laudible, is merely a policy. It cannot override the
demands of nationalism.[50]
The Manila Hotel or, for that matter, 51% of the MHC, is not just any
commodity to be sold to the highest bidder solely for the sake of
privatization. We are not talking about an ordinary piece of property in a
commercial district. We are talking about a historic relic that has hosted
many of the most important events in the short history of the Philippines as
a nation. We are talking about a hotel where heads of states would prefer
to be housed as a strong manifestation of their desire to cloak the dignity
of the highest state function to their official visits to the Philippines. Thus
the Manila Hotel has played and continues to play a significant role as an

authentic repository of twentieth century Philippine history and culture. In

this sense, it has become truly a reflection of the Filipino soul - a place with
a history of grandeur; a most historical setting that has played a part in the
shaping of a country.[51]
This Court cannot extract rhyme nor reason from the determined
efforts of respondents to sell the historical landmark - this Grand Old
Dame of hotels in Asia - to a total stranger. For, indeed, the conveyance
of this epic exponent of the Filipino psyche to alien hands cannot be less
than mephistophelian for it is, in whatever manner viewed, a veritable
alienation of a nations soul for some pieces of foreign silver. And so we
ask: What advantage, which cannot be equally drawn from a qualified
Filipino, can be gained by the Filipinos if Manila Hotel - and all that it
stands for - is sold to a non-Filipino? How much of national pride will
vanish if the nations cultural heritage is entrusted to a foreign entity? On
the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and wellmeaning Filipino? This is the plain and simple meaning of the Filipino First
Policy provision of the Philippine Constitution. And this Court, heeding the
clarion call of the Constitution and accepting the duty of being the elderly
watchman of the nation, will continue to respect and protect the sanctity of
the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL are directed to CEASE and DESIST from selling 51% of the
shares of the Manila Hotel Corporation to RENONG BERHAD, and to
ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL
CORPORATION to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to execute the
necessary agreements and documents to effect the sale, to issue the
necessary clearances and to do such other acts and deeds as may be
necessary for the purpose.
SO ORDERED.
MMDA Concerned citizens of Manila Bay
DECISION
VELASCO, JR., J.:

The need to address environmental pollution, as a cause of climate

change, has of late gained the attention of the international
community. Media have finally trained their sights on the ill effects of
pollution, the destruction of forests and other critical habitats, oil spills, and
the unabated improper disposal of garbage. And rightly so, for the
magnitude of environmental destruction is now on a scale few ever
foresaw and the wound no longer simply heals by itself.[2] But amidst hard
evidence and clear signs of a climate crisis that need bold action, the voice
of cynicism, naysayers, and procrastinators can still be heard.
This case turns on government agencies and their officers who, by
the nature of their respective offices or by direct statutory command, are
tasked to protect and preserve, at the first instance, our internal waters,
rivers, shores, and seas polluted by human activities. To most of these
agencies and their official complement, the pollution menace does not
seem to carry the high national priority it deserves, if their track records are
to be the norm. Their cavalier attitude towards solving, if not mitigating, the
environmental pollution problem, is a sad commentary on bureaucratic
efficiency and commitment.
At the core of the case is the Manila Bay, a place with a proud
historic past, once brimming with marine life and, for so many decades in
the past, a spot for different contact recreation activities, but now a dirty
and slowly dying expanse mainly because of the abject official indifference
of people and institutions that could have otherwise made a difference.

This case started when, on January 29, 1999, respondents

Concerned Residents of Manila Bay filed a complaint before the Regional
Trial Court (RTC) in Imus, Cavite against several government agencies,
among them the petitioners, for the cleanup, rehabilitation, and protection
of the Manila Bay. Raffled to Branch 20 and docketed as Civil Case No.
1851-99 of the RTC, the complaint alleged that the water quality of
the Manila Bay had fallen way below the allowable standards set by law,
specifically Presidential Decree No. (PD) 1152 or the Philippine

Environment Code. This environmental aberration, the complaint stated,

stemmed from:
x x x [The] reckless, wholesale, accumulated and
ongoing acts of omission or commission [of the defendants]
resulting in the clear and present danger to public health and
in the depletion and contamination of the marine life of Manila
Bay, [for which reason] ALL defendants must be held jointly
and/or solidarily liable and be collectively ordered to clean up
Manila Bay and to restore its water quality to class B waters fit
for swimming, skin-diving, and other forms of contact
recreation.[3]

In their individual causes of action, respondents alleged that the

continued neglect of petitioners in abating the pollution of
the Manila Bay constitutes a violation of, among others:
(1)

Respondents constitutional right to life, health, and a

balanced ecology;
(2)
The Environment Code (PD 1152);
(3)
The Pollution Control Law (PD 984);
(4)
The Water Code (PD 1067);
(5)
The Sanitation Code (PD 856);
(6)
The Illegal Disposal of Wastes Decree (PD 825);
(7)
The Marine Pollution Law (PD 979);
(8)
Executive Order No. 192;
(9)
The Toxic and Hazardous Wastes Law (Republic Act
No. 6969);
(10)
Civil Code provisions on nuisance and human relations;
(11)
The Trust Doctrine and the Principle of Guardianship; and
(12)
International Law
Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be
ordered to clean the Manila Bay and submit to the RTC a concerted
concrete plan of action for the purpose.
The trial of the case started off with a hearing at the Manila Yacht
Club followed by an ocular inspection of the Manila Bay. Renato T. Cruz,
the Chief of the Water Quality Management Section, Environmental

Management Bureau, Department of Environment and Natural Resources

(DENR), testifying for petitioners, stated that water samples collected from
different beaches around the Manila Bay showed that the amount of fecal
coliform content ranged from 50,000 to 80,000 most probable number
(MPN)/ml when what DENR Administrative Order No. 34-90 prescribed as
a safe level for bathing and other forms of contact recreational activities, or
the SB level, is one not exceeding 200 MPN/100 ml.[4]
Rebecca de Vera, for Metropolitan Waterworks and Sewerage
System (MWSS) and in behalf of other petitioners, testified about the
MWSS efforts to reduce pollution along theManila Bay through the Manila
Second Sewerage Project. For its part, the Philippine Ports Authority
(PPA) presented, as part of its evidence, its memorandum circulars on the
study being conducted on ship-generated waste treatment and disposal,
and its Linis Dagat (Clean the Ocean) project for the cleaning of wastes
accumulated or washed to shore.
The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay
On September 13, 2002, the RTC rendered a Decision[5] in favor of
respondents. The dispositive portion reads:
WHEREFORE, finding merit in the complaint, judgment
is hereby rendered ordering the abovenamed defendantgovernment agencies, jointly and solidarily, to clean up and
rehabilitate Manila Bay and restore its waters to SB
classification to make it fit for swimming, skin-diving and other
forms of contact recreation. To attain this, defendantagencies, with defendant DENR as the lead agency, are
directed, within six (6) months from receipt hereof, to act and
perform their respective duties by devising a consolidated,
coordinated and concerted scheme of action for the
rehabilitation and restoration of the bay.
In particular:
Defendant MWSS is directed to install, operate and
maintain adequate [sewerage] treatment facilities in strategic
places under its jurisdiction and increase their capacities.

Defendant LWUA, to see to it that the water districts

under its wings, provide, construct and operate sewage
facilities for the proper disposal of waste.
Defendant DENR, which is the lead agency in cleaning
up Manila Bay, to install, operate and maintain waste facilities
to rid the bay of toxic and hazardous substances.
Defendant PPA, to prevent and also to treat the
discharge not only of ship-generated wastes but also of other
solid and liquid wastes from docking vessels that contribute to
the pollution of the bay.
Defendant MMDA, to establish, operate and maintain
an adequate and appropriate sanitary landfill and/or adequate
solid waste and liquid disposal as well as other alternative
garbage disposal system such as re-use or recycling of
wastes.
Defendant DA, through the Bureau of Fisheries and
Aquatic Resources, to revitalize the marine life
in Manila Bay and restock its waters with indigenous fish and
other aquatic animals.
Defendant DBM, to provide and set aside an adequate
budget solely for the purpose of cleaning up and rehabilitation
of Manila Bay.
Defendant DPWH, to remove and demolish structures
and other nuisances that obstruct the free flow of waters to the
bay. These nuisances discharge solid and liquid wastes which
eventually end up in Manila Bay. As the construction and
engineering arm of the government, DPWH is ordered to
actively participate in removing debris, such as carcass of
sunken vessels, and other non-biodegradable garbage in the
bay.
Defendant DOH, to closely supervise and monitor the
operations of septic and sludge companies and require them
to have proper facilities for the treatment and disposal of fecal
sludge and sewage coming from septic tanks.

Defendant DECS, to inculcate in the minds and hearts

of the people through education the importance of preserving
and protecting the environment.
Defendant Philippine Coast Guard and the PNP
Maritime Group, to protect at all costs the Manila Bay from all
forms of illegal fishing.
No pronouncement as to damages and costs.
SO ORDERED.
The MWSS, Local Water Utilities Administration (LWUA), and PPA
filed before the Court of Appeals (CA) individual Notices of Appeal which
were eventually consolidated and docketed as CA-G.R. CV No. 76528.
On the other hand, the DENR, Department of Public Works and
Highways (DPWH), Metropolitan Manila Development Authority (MMDA),
Philippine Coast Guard (PCG), Philippine National Police (PNP) Maritime
Group, and five other executive departments and agencies filed directly
with this Court a petition for review under Rule 45. The Court, in a
Resolution of December 9, 2002, sent the said petition to the CA for
consolidation with the consolidated appeals of MWSS, LWUA, and PPA,
docketed as CA-G.R. SP No. 74944.
Petitioners, before the CA, were one in arguing in the main that the
pertinent provisions of the Environment Code (PD 1152) relate only to the
cleaning of specific pollution incidents and do not cover cleaning in
general. And apart from raising concerns about the lack of funds
appropriated for cleaning purposes, petitioners also asserted that the
cleaning of the Manila Bayis not a ministerial act which can be compelled
by mandamus.

The CA Sustained the RTC

By a Decision[6] of September 28, 2005, the CA denied petitioners
appeal and affirmed the Decision of the RTC in toto, stressing that the trial

courts decision did not require petitioners to do tasks outside of their usual
basic functions under existing laws.[7]
Petitioners are now before this Court praying for the allowance of
their Rule 45 petition on the following ground and supporting arguments:
THE [CA] DECIDED A QUESTION OF SUBSTANCE
NOT HERETOFORE PASSED UPON BY THE HONORABLE
COURT, I.E., IT AFFIRMED THE TRIAL COURTS DECISION
DECLARING THAT SECTION 20 OF [PD] 1152 REQUIRES
CONCERNED GOVERNMENT AGENCIES TO REMOVE ALL
POLLUTANTS SPILLED AND DISCHARGED IN THE
WATER SUCH AS FECAL COLIFORMS.
ARGUMENTS
I
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY
TO THE CLEANING OF SPECIFIC POLLUTION INCIDENTS
AND [DO] NOT COVER CLEANING IN GENERAL
II
THE
CLEANING
OR
THE MANILA BAY IS NOT A
PETITIONERS
THAT
CAN
MANDAMUS.

REHABILITATION
MINISTERIAL ACT
BE
COMPELLED

OF
OF
BY

The issues before us are two-fold. First, do Sections 17 and 20 of

PD 1152 under the headings, Upgrading of Water Quality and Clean-up
Operations, envisage a cleanup in general or are they limited only to the
cleanup of specific pollution incidents? And second, can petitioners be
compelled by mandamus to clean up and rehabilitate the Manila Bay?
On August 12, 2008, the Court conducted and heard the parties on
oral arguments.
Our Ruling

We shall first dwell on the propriety of the issuance of mandamus

under the premises.
The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus
Generally, the writ of mandamus lies to require the execution of a
ministerial duty.[8] A ministerial duty is one that requires neither the
exercise of official discretion nor judgment.[9] It connotes an act in which
nothing is left to the discretion of the person executing it. It is a simple,
definite duty arising under conditions admitted or proved to exist and
imposed by law.[10] Mandamus is available to compel action, when
refused, on matters involving discretion, but not to direct the exercise of
judgment or discretion one way or the other.
Petitioners maintain that the MMDAs duty to take measures and
maintain adequate solid waste and liquid disposal systems necessarily
involves policy evaluation and the exercise of judgment on the part of the
agency concerned. They argue that the MMDA, in carrying out its
mandate, has to make decisions, including choosing where a landfill
should be located by undertaking feasibility studies and cost estimates, all
of which entail the exercise of discretion.
Respondents, on the other hand, counter that the statutory
command is clear and that petitioners duty to comply with and act
according to the clear mandate of the law does not require the exercise of
discretion. According to respondents, petitioners, the MMDA in particular,
are without discretion, for example, to choose which bodies of water they
are to clean up, or which discharge or spill they are to contain. By the
same token, respondents maintain that petitioners are bereft of discretion
on whether or not to alleviate the problem of solid and liquid waste
disposal; in other words, it is the MMDAs ministerial duty to attend to such
services.
We agree with respondents.

First off, we wish to state that petitioners obligation to perform their

duties as defined by law, on one hand, and how they are to carry out such
duties, on the other, are two different concepts. While the implementation
of the MMDAs mandated tasks may entail a decision-making process, the
enforcement of the law or the very act of doing what the law exacts to be
done is ministerial in nature and may be compelled by mandamus. We
said so in Social Justice Society v. Atienza[11] in which the Court directed
the City of Manila to enforce, as a matter of ministerial duty, its Ordinance
No. 8027 directing the three big local oil players to cease and desist from
operating their business in the so-called Pandacan Terminals within six
months from the effectivity of the ordinance. But to illustrate with respect to
the instant case, the MMDAs duty to put up an adequate and appropriate
sanitary landfill and solid waste and liquid disposal as well as other
alternative garbage disposal systems is ministerial, its duty being a
statutory imposition. The MMDAs duty in this regard is spelled out in Sec.
3(c) of Republic Act No. (RA) 7924 creating the MMDA. This section
defines and delineates the scope of the MMDAs waste disposal services
to include:
Solid waste disposal and management which include
formulation and implementation of policies, standards,
programs and projects for proper and sanitary waste
disposal. It shall likewise include theestablishment and
operation of sanitary land fill and related facilities and the
implementation of other alternative programs intended to
reduce, reuse and recycle solid waste. (Emphasis added.)

The MMDA is duty-bound to comply with Sec. 41 of the Ecological

Solid Waste Management Act (RA 9003) which prescribes the minimum
criteria for the establishment of sanitary landfills and Sec. 42 which
provides the minimum operating requirements that each site operator shall
maintain in the operation of a sanitary landfill. Complementing Sec. 41 are
Secs. 36 and 37 of RA 9003,[12] enjoining the MMDA and local government
units, among others, after the effectivity of the law on February 15, 2001,

from using and operating open dumps for solid waste and disallowing, five
years after such effectivity, the use of controlled dumps.
The MMDAs duty in the area of solid waste disposal, as may be
noted, is set forth not only in the Environment Code (PD 1152) and RA
9003, but in its charter as well. This duty of putting up a proper waste
disposal system cannot be characterized as discretionary, for, as earlier
stated, discretion presupposes the power or right given by law to public
functionaries to act officially according to their judgment or
conscience.[13] A discretionary duty is one that allows a person to
exercise judgment and choose to perform or not to perform.[14] Any
suggestion that the MMDA has the option whether or not to perform its
solid waste disposal-related duties ought to be dismissed for want of legal
basis.
A perusal of other petitioners respective charters or like enabling
statutes and pertinent laws would yield this conclusion: these government
agencies are enjoined, as a matter of statutory obligation, to perform
certain functions relating directly or indirectly to the cleanup, rehabilitation,
protection, and preservation of the Manila Bay. They are precluded from
choosing not to perform these duties. Consider:
(1) The DENR, under Executive Order No. (EO) 192,[15] is the
primary agency responsible for the conservation, management,
development, and proper use of the countrys environment and natural
resources. Sec. 19 of the Philippine Clean Water Act of 2004 (RA 9275),
on the other hand, designates the DENR as the primary government
agency responsible for its enforcement and implementation, more
particularly over all aspects of water quality management. On water
pollution, the DENR, under the Acts Sec. 19(k), exercises jurisdiction over
all aspects of water pollution, determine[s] its location, magnitude, extent,
severity, causes and effects and other pertinent information on pollution,
and [takes] measures, using available methods and technologies, to
prevent and abate such pollution.
The DENR, under RA 9275, is also tasked to prepare a National
Water Quality Status Report, an Integrated Water Quality Management

Framework, and a 10-year Water Quality Management Area Action Plan

which is nationwide in scope covering the Manila Bay and adjoining areas.
Sec. 19 of RA 9275 provides:
Sec. 19 Lead Agency.The [DENR] shall be the
primary
government
agency
responsible
for
the
implementation and enforcement of this Act x x x unless
otherwise provided herein. As such, it shall have the following
functions, powers and responsibilities:
a)

Prepare a National Water Quality Status report within

twenty-four (24) months from the effectivity of this Act:
Provided, That the Department shall thereafter review or
revise and publish annually, or as the need arises, said
report;

b)

Prepare an Integrated Water Quality Management

Framework within twelve (12) months following the
completion of the status report;

c)

Prepare a ten (10) year Water Quality Management Area

Action Plan within 12 months following the completion of
the framework for each designated water management
area. Such action plan shall be reviewed by the water
quality management area governing board every five (5)
years or as need arises.

The DENR has prepared the status report for the period 2001 to
2005 and is in the process of completing the preparation of the Integrated
Water Quality Management Framework.[16]Within twelve (12) months
thereafter, it has to submit a final Water Quality Management Area Action
Plan.[17] Again, like the MMDA, the DENR should be made to accomplish
the tasks assigned to it under RA 9275.
Parenthetically, during the oral arguments, the DENR Secretary
manifested that the DENR, with the assistance of and in partnership with
various government agencies and non-government organizations, has
completed, as of December 2005, the final draft of a comprehensive action
plan with estimated budget and time frame, denominated as Operation

Plan for the Manila Bay Coastal Strategy, for the rehabilitation, restoration,
and rehabilitation of the Manila Bay.
The completion of the said action plan and even the
implementation of some of its phases should more than ever prod the
concerned agencies to fast track what are assigned them under existing
laws.
(2) The MWSS, under Sec. 3 of RA 6234,[18] is vested with
jurisdiction, supervision, and control over all waterworks and sewerage
systems in the territory comprising what is now the cities of Metro Manila
and several towns of the provinces of Rizal and Cavite, and charged with
the duty:
(g)
To construct, maintain, and operate such sanitary
sewerages as may be necessary for the proper sanitation and
other uses of the cities and towns comprising the System; x x
x

(3) The LWUA under PD 198 has the power of supervision and
control over local water districts. It can prescribe the minimum standards
and regulations for the operations of these districts and shall monitor and
evaluate local water standards. The LWUA can direct these districts to
construct, operate, and furnish facilities and services for the collection,
treatment, and disposal of sewerage, waste, and storm water. Additionally,
under RA 9275, the LWUA, as attached agency of the DPWH, is tasked
with providing sewerage and sanitation facilities, inclusive of the setting up
of efficient and safe collection, treatment, and sewage disposal system in
the different parts of the country.[19] In relation to the instant petition, the
LWUA is mandated to provide sewerage and sanitation facilities in
Laguna, Cavite, Bulacan, Pampanga, and Bataan to prevent pollution in
the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the
Administrative Code of 1987 (EO 292),[20] is designated as the agency
tasked to promulgate and enforce all laws and issuances respecting the
conservation and proper utilization of agricultural and fishery resources.
Furthermore, the DA, under the Philippine Fisheries Code of 1998 (RA

8550), is, in coordination with local government units (LGUs) and other
concerned sectors, in charge of establishing a monitoring, control, and
surveillance system to ensure that fisheries and aquatic resources in
Philippine waters are judiciously utilized and managed on a sustainable
basis.[21] Likewise under RA 9275, the DA is charged with coordinating
with the PCG and DENR for the enforcement of water quality standards in
marine waters.[22] More specifically, its Bureau of Fisheries and Aquatic
Resources (BFAR) under Sec. 22(c) of RA 9275 shall primarily be
responsible for the prevention and control of water pollution for the
development, management, and conservation of the fisheries and aquatic
resources.
(5) The DPWH, as the engineering and construction arm of the
national government, is tasked under EO 292[23] to provide integrated
planning, design, and construction services for, among others, flood
control and water resource development systems in accordance with
national development objectives and approved government plans and
specifications.
In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA
7924 to perform metro-wide services relating to flood control and
sewerage management which include the formulation and implementation
of policies, standards, programs and projects for an integrated flood
control, drainage and sewerage system.
On July 9, 2002, a Memorandum of Agreement was entered into
between the DPWH and MMDA, whereby MMDA was made the agency
primarily responsible for flood control in Metro Manila. For the rest of the
country, DPWH shall remain as the implementing agency for flood control
services. The mandate of the MMDA and DPWH on flood control and
drainage services shall include the removal of structures, constructions,
and encroachments built along rivers, waterways, and esteros (drainages)
in violation of RA 7279, PD 1067, and other pertinent laws.
(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the
Revised Coast Guard Law of 1974, and Sec. 6 of PD 979,[24] or the Marine

Pollution Decree of 1976, shall have the primary responsibility of enforcing

laws, rules, and regulations governing marine pollution within the territorial
waters of the Philippines. It shall promulgate its own rules and regulations
in accordance with the national rules and policies set by the National
Pollution Control Commission upon consultation with the latter for the
effective implementation and enforcement of PD 979. It shall, under Sec.
4 of the law, apprehend violators who:
a. discharge, dump x x x harmful substances from or out of
any ship, vessel, barge, or any other floating craft, or other
man-made structures at sea, by any method, means or
manner, into or upon the territorial and inland navigable
waters of the Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or
procure to be thrown, discharged, or deposited either from or
out of any ship, barge, or other floating craft or vessel of any
kind, or from the shore, wharf, manufacturing establishment,
or mill of any kind, any refuse matter of any kind or description
whatever other than that flowing from streets and sewers and
passing therefrom in a liquid state into tributary of any
navigable water from which the same shall float or be washed
into such navigable water; and
c. deposit x x x material of any kind in any place on the bank
of any navigable water or on the bank of any tributary of any
navigable water, where the same shall be liable to be washed
into such navigable water, either by ordinary or high tides, or
by storms or floods, or otherwise, whereby navigation shall or
may be impeded or obstructed or increase the level of
pollution of such water.

(7) When RA 6975 or the Department of the Interior and Local

Government (DILG) Act of 1990 was signed into law on December 13,
1990, the PNP Maritime Group was tasked to perform all police functions
over the Philippine territorial waters and rivers. Under Sec. 86, RA 6975,
the police functions of the PCG shall be taken over by the PNP when the
latter acquires the capability to perform such functions. Since the PNP
Maritime Group has not yet attained the capability to assume and perform

the police functions of PCG over marine pollution, the PCG and PNP
Maritime Group shall coordinate with regard to the enforcement of laws,
rules, and regulations governing marine pollution within the territorial
waters of the Philippines. This was made clear in Sec. 124, RA 8550 or the
Philippine Fisheries Code of 1998, in which both the PCG and PNP
Maritime Group were authorized to enforce said law and other fishery laws,
rules, and regulations.[25]
(8) In accordance with Sec. 2 of EO 513, the PPA is mandated to
establish, develop, regulate, manage and operate a rationalized national
port system in support of trade and national development.[26] Moreover,
Sec. 6-c of EO 513 states that the PPA has police authority within the
ports administered by it as may be necessary to carry out its
powers and functions and attain its purposes and objectives,
without prejudice to the exercise of the functions of the Bureau
of Customs and other law enforcement bodies within the area.
Such police authority shall include the following:
xxxx
b) To regulate the entry to, exit from, and movement within the
port, of persons and vehicles, as well as movement within the
port of watercraft.[27]

Lastly, as a member of the International Marine Organization and a

signatory to the International Convention for the Prevention of Pollution
from Ships, as amended by MARPOL 73/78,[28] the Philippines, through the
PPA, must ensure the provision of adequate reception facilities at ports
and terminals for the reception of sewage from the ships docking in
Philippine ports. Thus, the PPA is tasked to adopt such measures as are
necessary to prevent the discharge and dumping of solid and liquid wastes
and other ship-generated wastes into the Manila Baywaters from vessels
docked at ports and apprehend the violators. When the vessels are not
docked at ports but within Philippine territorial waters, it is the PCG and
PNP Maritime Group that have jurisdiction over said vessels.

(9) The MMDA, as earlier indicated, is duty-bound to put up and

maintain adequate sanitary landfill and solid waste and liquid disposal
system as well as other alternative garbage disposal systems. It is
primarily responsible for the implementation and enforcement of the
provisions of RA 9003, which would necessary include its penal provisions,
within its area of jurisdiction.[29]
Among the prohibited acts under Sec. 48, Chapter VI of RA 9003
that are frequently violated are dumping of waste matters in public places,
such as roads, canals or esteros, open burning of solid waste, squatting in
open dumps and landfills, open dumping, burying of biodegradable or nonbiodegradable materials in flood-prone areas, establishment or operation
of open dumps as enjoined in RA 9003, and operation of waste
management facilities without an environmental compliance certificate.
Under Sec. 28 of the Urban Development and Housing Act of 1992
(RA 7279), eviction or demolition may be allowed when persons or entities
occupy danger areas such as esteros, railroad tracks, garbage dumps,
riverbanks, shorelines, waterways, and other public places such as
sidewalks, roads, parks and playgrounds. The MMDA, as lead agency, in
coordination with the DPWH, LGUs, and concerned agencies, can
dismantle and remove all structures, constructions, and other
encroachments built in breach of RA 7279 and other pertinent laws along
the rivers, waterways, and esteros in Metro Manila. With respect to rivers,
waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite, and
Laguna that discharge wastewater directly or eventually into the Manila
Bay, the DILG shall direct the concerned LGUs to implement the
demolition and removal of such structures, constructions, and other
encroachments built in violation of RA 7279 and other applicable laws in
coordination with the DPWH and concerned agencies.
(10) The Department of Health (DOH), under Article 76 of PD 1067
(the Water Code), is tasked to promulgate rules and regulations for the
establishment of waste disposal areas that affect the source of a water
supply or a reservoir for domestic or municipal use. And under Sec. 8 of
RA 9275, the DOH, in coordination with the DENR, DPWH, and other

concerned agencies, shall formulate guidelines and standards for the

collection, treatment, and disposal of sewage and the establishment and
operation of a centralized sewage treatment system. In areas not
considered as highly urbanized cities, septage or a mix sewerage-septage
management system shall be employed.
In accordance with Sec. 72[30] of PD 856, the Code of Sanitation of
the Philippines, and Sec. 5.1.1[31] of Chapter XVII of its implementing rules,
the DOH is also ordered to ensure the regulation and monitoring of the
proper disposal of wastes by private sludge companies through the strict
enforcement of the requirement to obtain an environmental sanitation
clearance of sludge collection treatment and disposal before these
companies are issued their environmental sanitation permit.
(11) The Department of Education (DepEd), under the Philippine
Environment Code (PD 1152), is mandated to integrate subjects on
environmental education in its school curricula at all levels.[32] Under Sec.
118 of RA 8550, the DepEd, in collaboration with the DA, Commission on
Higher Education, and Philippine Information Agency, shall launch and
pursue a nationwide educational campaign to promote the development,
management, conservation, and proper use of the environment. Under the
Ecological Solid Waste Management Act (RA 9003), on the other hand, it
is directed to strengthen the integration of environmental concerns in
school curricula at all levels, with an emphasis on waste management
principles.[33]
(12) The Department of Budget and Management (DBM) is tasked
under Sec. 2, Title XVII of the Administrative Code of 1987 to ensure the
efficient and sound utilization of government funds and revenues so as to
effectively achieve the countrys development objectives.[34]
One of the countrys development objectives is enshrined in RA
9275 or the Philippine Clean Water Act of 2004. This law stresses that the
State shall pursue a policy of economic growth in a manner consistent with
the protection, preservation, and revival of the quality of our fresh,
brackish, and marine waters. It also provides that it is the policy of the

government, among others, to streamline processes and procedures in the

prevention, control, and abatement of pollution mechanisms for the
protection of water resources; to promote environmental strategies and
use of appropriate economic instruments and of control mechanisms for
the protection of water resources; to formulate a holistic national program
of water quality management that recognizes that issues related to this
management cannot be separated from concerns about water sources and
ecological protection, water supply, public health, and quality of life; and to
provide a comprehensive management program for water pollution
focusing on pollution prevention.
Thus, the DBM shall then endeavor to provide an adequate budget
to attain the noble objectives of RA 9275 in line with the countrys
development objectives.
All told, the aforementioned enabling laws and issuances are in
themselves clear, categorical, and complete as to what are the obligations
and mandate of each agency/petitioner under the law. We need not
belabor the issue that their tasks include the cleanup of the Manila Bay.
Now, as to the crux of the petition. Do Secs. 17 and 20 of the
Environment Code encompass the cleanup of water pollution in general,
not just specific pollution incidents?
Secs. 17 and 20 of the Environment Code
Include Cleaning in General
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.Where the quality of
water has deteriorated to a degree where its state will
adversely affect its best usage, the government agencies
concerned shall take such measures as may be necessary to
upgrade the quality of such water to meet the prescribed water
quality standards.

Section 20. Clean-up Operations.It shall be the

responsibility of the polluter to contain, remove and clean-up
water pollution incidents at his own expense. In case of his
failure to do so, the government agencies concerned shall
undertake containment, removal and clean-up operations and
expenses incurred in said operations shall be charged against
the persons and/or entities responsible for such pollution.

When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the
subject, Cleanup Operations, amended the counterpart provision (Sec. 20)
of the Environment Code (PD 1152). Sec. 17 of PD 1152 continues,
however, to be operational.

The amendatory Sec. 16 of RA 9275 reads:

SEC. 16. Cleanup Operations.Notwithstanding the
provisions of Sections 15 and 26 hereof, any person who
causes pollution in or pollutes water bodies in excess of the
applicable and prevailing standards shall be responsible to
contain, remove and clean up any pollution incident at his own
expense to the extent that the same water bodies have been
rendered unfit for utilization and beneficial use: Provided, That
in the event emergency cleanup operations are necessary and
the polluter fails to immediately undertake the same, the
[DENR] in coordination with other government agencies
concerned, shall undertake containment, removal and cleanup
operations. Expenses incurred in said operations shall be
reimbursed by the persons found to have caused such
pollution under proper administrative determination x x x.
Reimbursements of the cost incurred shall be made to the
Water Quality Management Fund or to such other funds where
said disbursements were sourced.

As may be noted, the amendment to Sec. 20 of the Environment

Code is more apparent than real since the amendment, insofar as it is
relevant to this case, merely consists in the designation of the DENR as
lead agency in the cleanup operations.

Petitioners contend at every turn that Secs. 17 and 20 of the

Environment Code concern themselves only with the matter of cleaning up
in specific pollution incidents, as opposed to cleanup in general. They aver
that the twin provisions would have to be read alongside the succeeding
Sec. 62(g) and (h), which defines the terms cleanup operations and
accidental spills, as follows:
g.
Clean-up Operations [refer] to activities conducted in
removing the
pollutants discharged or spilled in water to
restore it to pre-spill condition.
h.

Accidental Spills [refer] to spills of oil or other

hazardous substances in water that result from
accidents such as collisions and groundings.

Petitioners proffer the argument that Secs. 17 and 20 of PD 1152

merely direct the government agencies concerned to undertake
containment, removal, and cleaning operations of a specific polluted
portion or portions of the body of water concerned. They maintain that the
application of said Sec. 20 is limited only to water pollution incidents,
which are situations that presuppose the occurrence of specific, isolated
pollution events requiring the corresponding containment, removal, and
cleaning operations. Pushing the point further, they argue that the
aforequoted Sec. 62(g) requires cleanup operations to restore the body
of water to pre-spill condition, which means that there must have been a
specific incident of either intentional or accidental spillage of oil or other
hazardous substances, as mentioned in Sec. 62(h).
As a counterpoint, respondents argue that petitioners erroneously
read Sec. 62(g) as delimiting the application of Sec. 20 to the containment,
removal, and cleanup operations for accidental spills only. Contrary to
petitioners posture, respondents assert that Sec. 62(g), in fact, even
expanded the coverage of Sec. 20. Respondents explain that without its
Sec. 62(g), PD 1152 may have indeed covered only pollution accumulating
from the day-to-day operations of businesses around the Manila Bay and

other sources of pollution that slowly accumulated in the bay.

Respondents, however, emphasize that Sec. 62(g), far from being a
delimiting provision, in fact even enlarged the operational scope of Sec.
20, by including accidental spills as among the water pollution incidents
contemplated in Sec. 17 in relation to Sec. 20 of PD 1152.
To respondents, petitioners parochial view on environmental issues,
coupled with their narrow reading of their respective mandated roles, has
contributed to the worsening water quality of the Manila Bay. Assuming,
respondents assert, that petitioners are correct in saying that the cleanup
coverage of Sec. 20 of PD 1152 is constricted by the definition of the
phrase cleanup operations embodied in Sec. 62(g), Sec. 17 is not
hobbled by such limiting definition. As pointed out, the phrases cleanup
operations and accidental spills do not appear in said Sec. 17, not even
in the chapter where said section is found.
Respondents are correct. For one thing, said Sec. 17 does not in
any way state that the government agencies concerned ought to confine
themselves to the containment, removal, and cleaning operations when a
specific pollution incident occurs. On the contrary, Sec. 17 requires them to
act even in the absence of a specific pollution incident, as long as water
quality has deteriorated to a degree where its state will adversely affect its
best usage. This section, to stress, commands concerned government
agencies, when appropriate, to take such measures as may be necessary
to meet the prescribed water quality standards. In fine, the underlying duty
to upgrade the quality of water is not conditional on the occurrence of any
pollution incident.
For another, a perusal of Sec. 20 of the Environment Code, as
couched, indicates that it is properly applicable to a specific situation in
which the pollution is caused by polluters who fail to clean up the mess
they left behind. In such instance, the concerned government agencies
shall undertake the cleanup work for the polluters account. Petitioners
assertion, that they have to perform cleanup operations in
the Manila Bay only when there is a water pollution incident and the erring
polluters do not undertake the containment, removal, and cleanup

operations, is quite off mark. As earlier discussed, the complementary Sec.

17 of the Environment Code comes into play and the specific duties of the
agencies to clean up come in even if there are no pollution incidents
staring at them. Petitioners, thus, cannot plausibly invoke and hide behind
Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext that their cleanup
mandate depends on the happening of a specific pollution incident. In this
regard, what the CA said with respect to the impasse over Secs. 17 and 20
of PD 1152 is at once valid as it is practical. The appellate court wrote: PD
1152 aims to introduce a comprehensive program of environmental
protection and management. This is better served by making Secs. 17 &
20 of general application rather than limiting them to specific pollution
incidents.[35]
Granting arguendo that petitioners position thus described vis--vis
the implementation of Sec. 20 is correct, they seem to have overlooked the
fact that the pollution of the ManilaBay is of such magnitude and scope
that it is well-nigh impossible to draw the line between a specific and a
general pollution incident. And such impossibility extends to pinpointing
with reasonable certainty who the polluters are. We note that Sec. 20 of
PD 1152 mentions water pollution incidents which may be caused by
polluters in the waters of the Manila Bay itself or by polluters in adjoining
lands and in water bodies or waterways that empty into the bay. Sec. 16 of
RA 9275, on the other hand, specifically adverts to any person who
causes pollution in or pollutes water bodies, which may refer to an
individual or an establishment that pollutes the land mass near
the Manila Bay or the waterways, such that the contaminants eventually
end up in the bay. In this situation, the water pollution incidents are so
numerous and involve nameless and faceless polluters that they can
validly be categorized as beyond the specific pollution incident level.
Not to be ignored of course is the reality that the government
agencies concerned are so undermanned that it would be almost
impossible to apprehend the numerous polluters of theManila Bay. It may
perhaps not be amiss to say that the apprehension, if any, of
the Manila Bay polluters has been few and far between. Hence, practically
nobody has been required to contain, remove, or clean up a given water

pollution incident. In this kind of setting, it behooves the Government to

step in and undertake cleanup operations. Thus, Sec. 16 of RA 9275,
previously Sec. 20 of PD 1152, covers for all intents and purposes a
general cleanup situation.
The cleanup and/or restoration of the Manila Bay is only an aspect
and the initial stage of the long-term solution. The preservation of the
water quality of the bay after the rehabilitation process is as important as
the cleaning phase. It is imperative then that the wastes and contaminants
found in the rivers, inland bays, and other bodies of water be stopped from
reaching the Manila Bay. Otherwise, any cleanup effort would just be a
futile, cosmetic exercise, for, in no time at all, the Manila Bay water quality
would again deteriorate below the ideal minimum standards set by PD
1152, RA 9275, and other relevant laws. It thus behooves the Court to put
the heads of the petitioner-department-agencies and the bureaus and
offices under them on continuing notice about, and to enjoin them to
perform,
their
mandates
and
duties
towards
cleaning
up
the Manila Bay and preserving the quality of its water to the ideal level.
Under what other judicial discipline describes as continuing
mandamus,[36] the Court may, under extraordinary circumstances, issue
directives with the end in view of ensuring that its decision would not be set
to naught by administrative inaction or indifference. In India, the doctrine of
continuing mandamus was used to enforce directives of the court to clean
up the length of theGanges River from industrial and municipal pollution.[37]
The Court can take judicial notice of the presence of shanties and
other unauthorized structures which do not have septic tanks along the
Pasig-Marikina-San Juan Rivers, the National Capital Region (NCR)
(Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-TullahanTenejeros Rivers, the Meycuayan-Marilao-Obando (Bulacan) Rivers, the
Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and
other minor rivers and connecting waterways, river banks,
and esteros which discharge their waters, with all the accompanying filth,
dirt, and garbage, into the major rivers and eventually the Manila Bay. If
there is one factor responsible for the pollution of the major river systems
and the Manila Bay, these unauthorized structures would be on top of the

list. And if the issue of illegal or unauthorized structures is not seriously

addressed with sustained resolve, then practically all efforts to cleanse
these important bodies of water would be for naught. The DENR
Secretary said as much.[38]
Giving urgent dimension to the necessity of removing these illegal
structures is Art. 51 of PD 1067 or the Water Code,[39] which prohibits the
building of structures within a given length along banks of rivers and other
waterways. Art. 51 reads:
The banks of rivers and streams and the shores of
the seas and lakes throughout their entire length and
within a zone of three (3) meters in urban areas, twenty
(20) meters in agricultural areas and forty (40) meters in forest
areas, along their margins, are subject to the easement of
public use in the interest of recreation, navigation,
floatage, fishing and salvage. No person shall be allowed
to stay in this zone longer than what is necessary for
recreation, navigation, floatage, fishing or salvage or to build
structures of any kind. (Emphasis added.)

Judicial notice may likewise be taken of factories and other industrial

establishments standing along or near the banks of the Pasig River, other
major rivers, and connecting waterways. But while they may not be
treated as unauthorized constructions, some of these establishments
undoubtedly contribute to the pollution of the Pasig River and
waterways. The DILG and the concerned LGUs, have, accordingly, the
duty to see to it that non-complying industrial establishments set up, within
a reasonable period, the necessary waste water treatment facilities and
infrastructure to prevent their industrial discharge, including their sewage
waters, from flowing into the Pasig River, other major rivers, and
connecting waterways. After such period, non-complying establishments
shall be shut down or asked to transfer their operations.
At this juncture, and if only to dramatize the urgency of the need for
petitioners-agencies to comply with their statutory tasks, we cite the Asian
Development Bank-commissioned study on the garbage problem in Metro

Manila, the results of which are embodied in the The Garbage Book. As
there reported, the garbage crisis in the metropolitan area is as alarming
as it is shocking. Some highlights of the report:
1. As early as 2003, three land-filled dumpsites in Metro
Manila - the Payatas, Catmon and Rodriquez dumpsites generate an alarming quantity of lead and leachate or liquid
run-off. Leachate are toxic liquids that flow along the surface
and seep into the earth and poison the surface and
groundwater that are used for drinking, aquatic life, and the
environment.
2. The high level of fecal coliform confirms the presence
of a large amount of human waste in the dump sites and
surrounding areas, which is presumably generated by
households that lack alternatives to sanitation. To say
that Manila Bay needs rehabilitation is an understatement.
3. Most of the deadly leachate, lead and other
dangerous contaminants and possibly strains of pathogens
seeps untreated into ground water and runs into
the Marikina and Pasig River systems andManila Bay.[40]
Given the above perspective, sufficient sanitary landfills should now
more than ever be established as prescribed by the Ecological Solid Waste
Management Act (RA 9003). Particular note should be taken of the blatant
violations by some LGUs and possibly the MMDA of Sec. 37, reproduced
below:
Sec. 37. Prohibition against the Use of Open Dumps for
Solid Waste.No open dumps shall be established and
operated, nor any practice or disposal of solid waste by any
person, including LGUs which [constitute] the use of open
dumps for solid waste, be allowed after the effectivity of this
Act: Provided, further that no controlled dumps shall be
allowed (5) years following the effectivity of this Act.
(Emphasis added.)

RA 9003 took effect on February 15, 2001 and the adverted grace
period of five (5) years which ended on February 21, 2006 has come and

gone, but no single sanitary landfill which strictly complies with the
prescribed standards under RA 9003 has yet been set up.
In addition, there are rampant and repeated violations of Sec. 48 of
RA 9003, like littering, dumping of waste matters in roads,
canals, esteros, and other public places, operation of open dumps, open
burning of solid waste, and the like. Some sludge companies which do not
have proper disposal facilities simply discharge sludge into the Metro
Manila sewerage system that ends up in the Manila Bay. Equally
unabated are violations of Sec. 27 of RA 9275, which enjoins the pollution
of water bodies, groundwater pollution, disposal of infectious wastes from
vessels, and unauthorized transport or dumping into sea waters of sewage
or solid waste and of Secs. 4 and 102 of RA 8550 which proscribes the
introduction by human or machine of substances to the aquatic
environment including dumping/disposal of waste and other marine litters,
discharge of petroleum or residual products of petroleum of carbonaceous
materials/substances [and other] radioactive, noxious or harmful liquid,
gaseous or solid substances, from any water, land or air transport or other
human-made structure.
In the light of the ongoing environmental degradation, the Court
wishes to emphasize the extreme necessity for all concerned executive
departments and agencies to immediately act and discharge their
respective official duties and obligations. Indeed, time is of the essence;
hence, there is a need to set timetables for the performance and
completion of the tasks, some of them as defined for them by law and the
nature of their respective offices and mandates.
The importance of the Manila Bay as a sea resource, playground,
and as a historical landmark cannot be over-emphasized. It is not yet too
late in the day to restore the Manila Bay to its former splendor and bring
back the plants and sea life that once thrived in its blue waters. But the
tasks ahead, daunting as they may be, could only be accomplished if those
mandated, with the help and cooperation of all civic-minded individuals,
would put their minds to these tasks and take responsibility. This means

that the State, through petitioners, has to take the lead in the preservation
and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over.
Petitioners must transcend their limitations, real or imaginary, and buckle
down to work before the problem at hand becomes unmanageable. Thus,
we must reiterate that different government agencies and instrumentalities
cannot shirk from their mandates; they must perform their basic functions
in cleaning up and rehabilitating the Manila Bay. We are disturbed by
petitioners hiding behind two untenable claims: (1) that there ought to be a
specific pollution incident before they are required to act; and (2) that the
cleanup of the bay is a discretionary duty.
RA 9003 is a sweeping piece of legislation enacted to radically
transform and improve waste management. It implements Sec. 16, Art. II
of the 1987 Constitution, which explicitly provides that the State shall
protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.
So it was that in Oposa v. Factoran, Jr. the Court stated that the right
to a balanced and healthful ecology need not even be written in the
Constitution for it is assumed, like other civil and political rights guaranteed
in the Bill of Rights, to exist from the inception of mankind and it is an issue
of transcendental importance with intergenerational implications.[41] Even
assuming the absence of a categorical legal provision specifically prodding
petitioners to clean up the bay, they and the men and women representing
them cannot escape their obligation to future generations of Filipinos to
keep the waters of the Manila Bay clean and clear as humanly as possible.
Anything less would be a betrayal of the trust reposed in them.
WHEREFORE, the petition is DENIED. The September 28, 2005
Decision of the CA in CA-G.R. CV No. 76528 and SP No. 74944 and the
September 13, 2002 Decision of the RTC in Civil Case No. 1851-99
are AFFIRMED but with MODIFICATIONS in view of subsequent
developments or supervening events in the case. The fallo of the RTC
Decision shall now read:

WHEREFORE, judgment is hereby rendered ordering

the abovenamed defendant-government agencies to clean up,
rehabilitate, and preserve Manila Bay, and restore and
maintain its waters to SB level (Class B sea waters per Water
Classification Tables under DENR Administrative Order No.
34 [1990]) to make them fit for swimming, skin-diving, and
other forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the
primary agency responsible for the conservation, management,
development, and proper use of the countrys environment and natural
resources, and Sec. 19 of RA 9275, designating the DENR as the primary
government agency responsible for its enforcement and implementation,
the DENR is directed to fully implement its Operational Plan for the Manila
Bay Coastal Strategy for the rehabilitation, restoration, and conservation
of the Manila Bay at the earliest possible time. It is ordered to call regular
coordination meetings with concerned government departments and
agencies to ensure the successful implementation of the aforesaid plan of
action in accordance with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative
Code of 1987 and Sec. 25 of the Local Government Code of 1991,[42] the
DILG, in exercising the Presidents power of general supervision and its
duty to promulgate guidelines in establishing waste management programs
under Sec. 43 of the Philippine Environment Code (PD 1152), shall direct
all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and
Bataan to inspect all factories, commercial establishments, and private
homes along the banks of the major river systems in their respective areas
of jurisdiction, such as but not limited to the Pasig-Marikina-San Juan
Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the NavotasMalabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando
(Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other minor rivers and waterways that eventually
discharge water into the Manila Bay; and the lands abutting the bay, to

determine whether they have wastewater treatment facilities or hygienic

septic tanks as prescribed by existing laws, ordinances, and rules and
regulations. If none be found, these LGUs shall be ordered to require noncomplying establishments and homes to set up said facilities or septic
tanks within a reasonable time to prevent industrial wastes, sewage water,
and human wastes from flowing into these rivers, waterways, esteros, and
the Manila Bay, under pain of closure or imposition of fines and other
sanctions.
(3) As mandated by Sec. 8 of RA 9275,[43] the MWSS is directed to
provide, install, operate, and maintain the necessary adequate waste water
treatment facilities in Metro Manila, Rizal, and Cavite where needed at the
earliest possible time.
(4) Pursuant to RA 9275,[44] the LWUA, through the local water
districts and in coordination with the DENR, is ordered to provide, install,
operate, and maintain sewerage and sanitation facilities and the efficient
and safe collection, treatment, and disposal of sewage in the provinces of
Laguna, Cavite, Bulacan, Pampanga, and Bataan where needed at the
earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550,[45] the DA, through the BFAR, is
ordered to improve and restore the marine life of the Manila Bay. It is also
directed to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna,
Bulacan, Pampanga, and Bataan in developing, using recognized
methods, the fisheries and aquatic resources in the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP
Maritime Group, in accordance with Sec. 124 of RA 8550, in coordination
with each other, shall apprehend violators of PD 979, RA 8550, and other
existing laws and regulations designed to prevent marine pollution in
the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 513[46] and the International
Convention for the Prevention of Pollution from Ships, the PPA is ordered
to immediately adopt such measures to prevent the discharge and

dumping of solid and liquid wastes and other ship-generated wastes into
the Manila Bay waters from vessels docked at ports and apprehend the
violators.
(8) The MMDA, as the lead agency and implementor of programs
and projects for flood control projects and drainage services in Metro
Manila, in coordination with the DPWH, DILG, affected LGUs, PNP
Maritime Group, Housing and Urban Development Coordinating Council
(HUDCC), and other agencies, shall dismantle and remove all structures,
constructions, and other encroachments established or built in violation of
RA 7279, and other applicable laws along the Pasig-Marikina-San Juan
Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the NavotasMalabon-Tullahan-Tenejeros
Rivers,
and
connecting
waterways
and esteros in Metro Manila. The DPWH, as the principal implementor of
programs and projects for flood control services in the rest of the country
more particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in
coordination with the DILG, affected LGUs, PNP Maritime Group, HUDCC,
and other concerned government agencies, shall remove and demolish all
structures, constructions, and other encroachments built in breach of RA
7279 and other applicable laws along the Meycauayan-Marilao-Obando
(Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other rivers, connecting waterways, and esterosthat
discharge wastewater into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain
a sanitary landfill, as prescribed by RA 9003, within a period of one (1)
year from finality of this Decision. On matters within its territorial
jurisdiction and in connection with the discharge of its duties on the
maintenance of sanitary landfills and like undertakings, it is also ordered to
cause the apprehension and filing of the appropriate criminal cases against
violators of the respective penal provisions of RA 9003,[47] Sec. 27 of RA
9275 (the Clean Water Act), and other existing laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of
RA 9275, within one (1) year from finality of this Decision, determine if all
licensed septic and sludge companies have the proper facilities for the

treatment and disposal of fecal sludge and sewage coming from septic
tanks. The DOH shall give the companies, if found to be non-complying, a
reasonable time within which to set up the necessary facilities under pain
of cancellation of its environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152,[48] Sec. 118 of RA 8550, and
Sec. 56 of RA 9003,[49] the DepEd shall integrate lessons on pollution
prevention, waste management, environmental protection, and like
subjects in the school curricula of all levels to inculcate in the minds and
hearts of students and, through them, their parents and friends, the
importance of their duty toward achieving and maintaining a balanced and
healthful ecosystem in the Manila Bay and the entire Philippine
archipelago.
(11) The DBM shall consider incorporating an adequate budget in
the General Appropriations Act of 2010 and succeeding years to cover the
expenses relating to the cleanup, restoration, and preservation of the water
quality of the Manila Bay, in line with the countrys development objective
to attain economic growth in a manner consistent with the protection,
preservation, and revival of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd,
DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and also of
MWSS, LWUA, and PPA, in line with the principle of continuing
mandamus, shall, from finality of this Decision, each submit to the Court a
quarterly progressive report of the activities undertaken in accordance with
this Decision.
No costs.
SO ORDERED.