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La Bugal-B'Laan Tribal Assn v. Ramos : 127882 : February 1, 2005 : J. Carpio-Morales : En Banc : Dissenting Opinion

La Bugal-B'Laan Tribal Assn v. Ramos : 127882 : February 1, 2005 : J. Carpio-Morales : En Banc : Dissenting Opinion

PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. NO. 127882 : February 1, 2005]

LA BUGAL-BLAAN TRIBAL ASSOCIATION, INC., ET AL., Petitioners, v. VICTOR O. RAMOS, ET AL., Respondents.

DISSENTING OPINION

CARPIO MORALES, J.:

'Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. (Dissenting Opinion of Justice Oliver Wendell Homes in Northern Securities Company v. U.S., 193 U.S. 197, 400-401 [1904])

The issue of the constitutionality of Republic Act No. 7942 (the Mining Act of 1995) and its implementing rules - an issue which has proven to be of 'immediate overwhelming interest - is once again before this Court.

This time, petitioners seek a reconsideration of this Court's December 1, 2004 Resolution which granted the respondents' and intervenors' Motions for Reconsideration of its Decision of January 27, 2004. The dispositive portion of the December 1, 2004 Resolution reads:1

WHEREFORE, the COURT RESOLVES to GRANTthe respondents' and the intervenors' Motions for Reconsideration; to REVERSEand SET ASIDE this Court's January 27, 2004 Decision; to DISMISSthe Petition; and to issue this new judgment declaring CONSTITUTIONAL(1) Republic Act No. 7942 (the Philippine Mining Law), (2) its Implementing Rules and Regulations contained in DENR Administrative Order (DAO) No. 9640 ' insofar as they relate to financial and technical assistance agreements referred to in paragraph 4 of Section 2 of Article XII of the Constitution; and (3) the Financial and Technical Assistance Agreement (FTAA) dated March 30, 1995 executed by the Government and Western Mining Corporation Philippines Inc. (WMCP), except Sections 7.8(e) and 7.9 of the subject FTAA which are hereby INVALIDATED for being contrary to public policy and for being grossly disadvantageous to the government. (Italics in the original)

Arguing that the Mining Act and its implementing rules violate the provisions of Section 2, Article XII of the Constitution regarding 'agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum and other mineral oils, petitioners pray that:

(a) Oral argumentation be set for the purpose of clarifying the new issues raised in the [Resolution] of December 1, 2004;

(b) After notice and hearing:

1.           the [Resolution] rendered on December 1, 2004 be set aside and vacated;

2.           the WMCP FTAA deriving force and effect from it be declared unconstitutional, illegal and null and void;


3.           Republic Act No. 7942 and its Implementing Rules and Regulations be declared unconstitutional and null and void.

Such other relief as are just and equitable under the premises.

Unfortunately, as noted in the majority Resolution on petitioners' Motion for Reconsideration at bar, 'after a thorough deliberation on the Motion, none of the members of this Court have changed their opinions or votes. Petitioners are thus not afforded the opportunity to fully discuss, through oral argument, the new issues which have arisen in this case.

However, at some future time, this Court may have the opportunity to re-examine and re-evaluate the pronouncements and conclusions made by the majority. I am thus compelled to underscore the following points in addition to those set forth in my Dissenting Opinion of December 1, 2004.

As petitioners point out, the Court's December 1, 2004 Resolution makes much of the government's self-declared 'fiscal crisis' and ultimately concludes that the State will never be in a position to directly explore, develop or utilize its own resources:

However, it is of common knowledge, and of judicial notice as well, that the government is and has for many many years been financially strapped, to the point that even the most essential services have suffered serious curtailments -- education and health care, for instance, not to mention judicial services -- have had to make do with inadequate budgetary allocations.   Thus, government has had to resort to build-operate-transfer and similar arrangements with the private sector, in order to get vital infrastructure projects built without any governmental outlay.  

The very recent brouhaha over the gargantuan 'fiscal crisis' or 'budget deficit merely confirms what the ordinary citizen has suspected all along.   After the reality check, one will have to admit the implausibility of a direct undertaking -- by the State itself -- of large-scaleexploration, development and utilization of minerals, petroleum and other mineral oils.     Such an undertaking entails not only humongous capital require me, but also the attendant risk of never finding and developing economically viable quantities of minerals, petroleum and other mineral oils.2 (Emphasis supplied)

At the same time, the ponenciaseems to have accepted the necessity of engaging in large scale mining activities in order to realize the projected riches, which are expected to materialize as a result:

Whether we consider the near term or take the longer view, we cannot overemphasize the need for an appropriate balancing of interests and needs -- the need to develop our stagnating mining industry and extract what NEDA Secretary Romulo Neri estimates is some US$840 billion (approx. PhP47.04 trillion) worth of mineral wealth lying hidden in the ground, in order to jumpstart our floundering economy on the one hand, and on the other, the need to enhance our nationalistic aspirations, protect our indigenous communities, and prevent irreversible ecological damage.3 (Emphasis supplied)

Indeed, the majority appears to have taken a liking to the mining industry as a whole, affording economic woes a greater measure of sympathy than that accorded to the 'big three oil players in Tatad v. Secretary of the Department of Energy4 or local cement producers in Southern Cross Cement Corp. v. Phil. Cement Manufacturers Corp.5 'Thus, in abandoning his original finding of mootness, the ponentestates:

But of equal if not greater significance is the cloud of uncertainty hanging over the mining industry, which is even now scaring away foreign investments.   Attesting to this climate of anxiety is the fact that the Chamber of Mines of the Philippines saw the urgent need to intervene in the case and to present its position during the Oral Argument; and that Secretary General Romulo Neri of the National Economic Development Authority (NEDA) requested this Court to allow him to speak, during that Oral Argument, on the economic consequences of the Decision of January 27, 2004.

We are convinced.   We now agree that the Court must recognize the exceptional character of the situation and the paramount public interest involved, as well as the necessity for a ruling to put an end to the uncertainties plaguing the mining industry and the affected communities as a result of doubts cast upon the constitutionality and validity of the Mining Act, the subject FTAA and future FTAAs, and the need to avert a multiplicity of suits.   Paraphrasing Gonzales v. Commission on Elections, it is evident that strong reasons of public policy demand that the constitutionality issue be resolved now.6 (Emphasis supplied; italics in the original)

Not surprisingly, petitioners object to the foregoing economic considerations which are perceived to underpin this Court's December 1, 2004 Resolution. Thus, they argue:

The main ponencia arrives at its conclusions with respect to determining what constitutes equitable sharing as well as reasonable control through the following assumptions which may have taken the form of judicial notice:

First, in agreements with fully foreign owned corporations in the exploration, development and utilization of mineral resources, the government does not take any risk;

Second, increasing investments in the commercial extraction of mineral resources would contribute positively to economic growth;

Third, a more liberal investment friendly interpretation of the provisions of the constitution will result in increase in beneficial investments.

These are assumptions expected of investors who are wishing to convince the state to make regulations friendlier to their operations. However, they do not necessarily redound to the benefit of the many more members of communities directly or indirectly affected7

Instead, petitioners, advocate what they believe to be the better development paradigm:

The main opinion opens with a desire to arrive at an interpretation of the constitution that does not 'strangulate economic growth to serve narrow parochial interests. It also assumes that encouraging the exploitation of mineral resources would 'attract foreign investments and expertise and that it would necessarily 'secure for our people and our posterity the blessings of prosperity and peace.

Besides simply asserting it to be a truism that restricting investments in extractive natural resources slows growth, the respondents have not presented any viable empirically proven causation between restricted investments in extractive natural resource industries and slower growth. In fact, study after study has shown that the opposite is empirically proven.

The natural resource curse is a phenomenon that is a demonstrable empirical fact. With few exceptions, countries which rely heaviest on their natural resources sector are the ones that exhibited the slowest growth. Empirical and analytic studies cited by economists Sachs and Warner. .. show that the natural resource curse is a demonstrable empirical fact, even after controlling for trends in commodity prices. There is little direct evidence that omitted geographical or climate variables explain the curse, or that there is bias resulting from some other unobserved growth deterrent. Resource-abundant countries tended to be high-priced economies and, consequently, tended to miss out on export-led growth. Natural resource abundance can crowd-out drivers of growth such as traded-manufacturing activities, education and even growth-promoting entrepreneurial activity.

If, as the ponencia admonishes, we are to read the Constitution in broad, life-giving strokes - in a manner that does not strangulate economic growth and gives justice to all, present and future generations - we cannot close our eyes to this empirical reality: that dependence on our natural resources can ultimately lead to slower growth, if not a growth collapse. It should be cautious rather than embracing of very large investments into the exploration, development and utilization of natural resources. The fear expressed by the ponencia that our growth will stagnate has no empirical leg to stand on and therefore should not be the basis of any form of judicial assumption or judicial notice.8 (Italics in the original; citations omitted)

To my mind, both approaches, which articulate a desired economic result, are inappropriate and inapplicable to the determination of the constitutionality of the Mining Act. In my view, judicial decision making should not be influenced by a desired economic outcome, but should be the product of the application of established neutral legal principles to the facts and the law of the case. If, in deciding a question of constitutionality, a judicial decision should reflect a particular economic perspective, it should only be that adopted by the Constitution itself.

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As Aristotle put it, 'Law is reason free from passion. And, since the authority of this Court - possessed of neither the purse nor the sword - ultimately rests on sustained public confidence in its moral sanction,9 it must ultimately depend on the power of reason, its sole currency to paraphrase Justice Thurgood Marshall,10 for sustained public confidence in the justness of its decisions.11

It should be plain that judges do not engage in reason giving or opinion writing merely as an intellectual performance A judicial justification is offered in order to justify to someone the decision or conclusion; a justification is directed to an audience. Perhaps the first person to whom the justification is directed is the losing litigant; and to this may be added all other people whose interests might be adversely affected by the result. These persons need to be assured that the administration of the law is not just a bald exercise of coercion, that it is not the might of the judge (the power of enforcement) that makes the decision right. Reasoned decisions, therefore, can be viewed as attempts at rational persuasion; and by means of such decisions, losing parties may be brought to accept the result as a legitimate exercise of authority. If this acceptance is achieved, the cause of social peace is also promoted, since every case has a loser. The system of administering justice through the courts is not likely to survive for very long if half the people whose disputes are resolved are convinced that judges arbitrarily decide questions of law.12 (Italics in the original; emphasis and underscoring supplied)

Judicial decisions, however, do not merely serve the purpose of convincing people that judges do not act arbitrarily. Justice Oliver Wendell Holmes, Jr. correctly viewed case law as a prediction of what courts will do.13 Judicial decisions supply guidance to other individuals on what the law is and on how their cases are likely to be decided should they end up in court, so that those individuals can adjust their conduct accordingly.14

. .. But a decision can serve this function only if reasons are given, otherwise, all one has is an unconnected series of raw facts. One has to know which facts are legally significant - which is what the reasons indicate. (The fact that the man who went through the red light was named Smith is not legally significant, but the fact that he was on his way to a hospital may be crucial.) Second, appellate courts are supposed to supply legal guidance to lower courts, and because of considerations similar to those just mentioned, their decisions will not be very helpful unless they lay out the reasons for their rulings. And third, in the American system many decisions are justified by reference to precedent ' the decisions made in prior cases. Again, it is only because explicit reasons were given for these earlier decisions that they are of any use for later cases. Plainly, many of the functions that courts serve require reasoned decisions.15 (Emphasis supplied)

It goes without saying that certainty, predictability and stability in the law are the major objectives of the legal system, and judicial decisions serve the important purpose of providing stability to the law and to the society governed by that law. Hence, the doctrine of stare decisis16 which Justice Sandra Day O Connor described in State Oil Co. v. Khan17 as 'the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.18 This sentiment is echoed by Justice Benjamin Cardozo:

I must be logical, just as I must be impartial, and upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another. If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights. Everyone feels the force of this sentiment when two cases are the same. Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.19 (Citations omitted; emphasis supplied)

And these desired objectives of certainty, predictability and stability can only be achieved if courts render decisions based on legal principles. The determination of the correctness of a judicial decision turns on far more than its outcome. 20 Rather, it turns primarily on whether its outcome evolved from principles of judicial methodology [21 since the Judiciary's function is not to bring about some desirable state of affairs but to find objectively the right decision by adhering to the established general system of rules.22 The philosophy of 'the end justifies the means' espoused by Niccolo Machiavelli simply has no place in decision making. As one judge puts it:

These methodological constraints do mean that we judges sometimes sustain actions we think make little sense, invalidate programs we like, or apply precedents we believe were wrongly decided In all these cases, though, we may have been troubled by the outcomes, we knew that vindicating the rule of law was far more important to our constitutional system than the issues at stake in any particular case. Oliver Wendell Holmes, Jr. put it this way: 'It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible, because I thereby helped to mark the difference between what I would forbid and what the Constitution permits.23 (Citation omitted; emphasis and underscoring supplied).

In his seminal article entitled Toward Neutral Principles of Constitutional Law,24 Columbia law professor Herbert Wechsler popularized the phrase 'principled decision which he defined as 'one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved.25 Consequently, to adopt a strained interpretation of a rule to achieve desired results is not a 'neutral principle, and decisions that apply it are not genuinely principled decisions because they do not rest on analysis and reasons quite transcending the immediate result.26 Wechsler further elaborates:

When no sufficient reasons of this kind can be assigned for overturning value choices of the other branches of the Government those choices must, of course, survive.

x x x

The virtue or demerit of a judgment turns, therefore, entirely on the reasons that support it and their adequacy to maintain any choice of values it decrees, or, it is vital that we add, to maintain the rejection of a claim that any given choice should be decreed.27 ςrνll

That said, it is readily apparent that this Court should not heed the apprehension of some foreign businessmen that this Court's January 27, 2004 Decision in La Bugal-BLaan Tribal Association, Inc. v. Ramos28 might hamper the government's efforts of resuscitating the mining industry and ultimately result in 'the possible loss of billions of dollars of investments and exports and tens of thousands of jobs29

Nor should this Court be swayed by moves to fault Justices whose decisions are not to a party's liking.30 As observed by Professor Aharon Barak, the President of the Supreme Court of Israel, criticism of the judiciary is unavoidable:

.. . In performing [its] duty, the court must, inevitably, be in conflict with the other branches, especially so in modern times where more and more political questions present themselves as legal questions, and are brought to be adjudicated before the courts, and especially so where the scope of judicial review over the other branches is wider than in the past. A wider judicial review carries with it wider interest in the courts, and widening tension between the court and the other branches of government. If there will be no conflict and no tension, the court will not be fulfilling its constitutional role. Thus, criticism there will always be.31

In Tatad v. Secretary of Department of Energy,32 this Court, speaking through Justice (now Senior Associate Justice) Reynato S. Puno, put aside all consideration of the possible impact the invalidation of the Oil Deregularization Law might have on the profitability of the petroleum industry in favor of a principled interpretation of the Constitution:

With this Decision, some circles will chide the Court for interfering with an economic decision of Congress. Such criticism is charmless for the Court is annulling R.A. No. 8180 not because it disagrees with deregulation as an economic policy but because as cobbled by Congress in its present form, the law violates the Constitution. The right call therefor should be for Congress to write a new oil deregulation law that conforms with the Constitution and not for this Court to shirk its duty of striking down a law that offends the Constitution. Striking down R.A. No. 8180 may cost losses in quantifiable terms to the oil oligopolists. But the loss in tolerating the tampering of our Constitution is not quantifiable in pesos and centavos. More worthy of protection than the supra-normal profits of private corporations is the sanctity of the fundamental principles of the Constitution. Indeed when confronted by a law violating the Constitution, the Court has no option but to strike it down dead. Lest it is missed, the Constitution is a covenant that grants and guarantees both the political and economic rights of the people. The Constitution mandates this Court to be the guardian not only of the people's political rights but their economic rights as well. The protection of the economic rights of the poor and the powerless is of greater importance to them for they are concerned more with the esoterics of living and less with the esoterics of liberty. Hence, for as long as the Constitution reigns supreme so long will this Court be vigilant in upholding the economic rights of our people especially from the onslaught of the powerful. Our defense of the people's economic rights may appear heartless because it cannot be half-hearted.33 (Italics in the original; emphasis supplied)

In reversing this Court's January 27, 2004 Decision, I fear that the majority has retreated from its resolve in Tatad and, unwittingly, has been swayed by peripheral and ultimately irrelevant economic arguments in its well-intentioned desire to arrive at a result which it believes would encourage economic recovery and prop up the floundering mining industry.

By doing so, however, the majority has given its imprimatur to an interpretation and application of the concepts of 'verba legis, 'full control and supervision, and 'permissible legislative delegation, which are inconsistent with established 'neutral principles' and incompatible with the letter and intent of the Constitution,34 thus undermining the stability of our jurisprudence and making the administration of justice a constant subject of speculation.

In both the questioned Resolution of December 1, 2004 and in the present Resolution denying petitioners' Motion for Reconsideration, the majority has continuously expressed its trust in the faithful exercise of discretion by both the President and her alter-ego, the Secretary of Environment and Natural Resources, in order to secure for all Filipinos, present and future, their just share in the nation's mineral resources:

x x x The issue of how much 'profit the nation should or could derive from the exploration, development and utilization of the country's mineral resources is a policy matter, over which we 'must allow the President and Congress maximum discretion in using the resources of our country and in securing the assistance of foreign groups to eradicate the grinding poverty of our people and answer their cry for viable employment opportunities in the country, (pp. 240-241, Resolution dated December 1, 2004). That the aforementioned law, executive issuance and contract had been declared constitutional will not prevent Congress or the President or the parties to the FTAA from amending or modifying them, if indeed, in their opinion they are unwise or wanting in any respect.

While there can be no doubt that the political branches of government enjoy a wide discretion in enacting and implementing programs and policies for the common good, still the exercise of this discretion is subject to the limitations imposed by the Constitution. Thus, in my view, respect for the other co-equal branches of government can, and should, go hand-in-hand with a critical investigation of those limits.

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Indeed, behind every constitution is the premise of mistrust. Consider the insight of James Madison, widely regarded as the Father of the American Constitution:

But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.35 (Emphasis supplied)

Our present Constitution is no exception. The 1987 is the product of our experience during martial law as elucidated by Justice Puno:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

. .. The serendipity of the 1935 Constitution was tested by the tumult of the 60's and the 70's. The writ of habeas corpuswas suspended and when that remedy proved inadequate, President Marcos wielded the state's ultimate weapon by declaring martial law. The President's exercise of his commander-in-chief powers distorted the distribution and balance of state powers. The legislature was shut down; the executive became the dominant branch of government; and the exercise of certain political and civil rights was diminished. The rearrangement of powers and its effects on individual rights brought to the limelight the judiciary and its power of judicial review. Demand was made for the Highest Court of the land to exercise its power of review, to set aside the presidential proclamation of martial law, and to void the 1973 Constitution's ratification [T]he High Court decided these cases by following the traditional and prudential path in constitutional litigations. It declined to strike down the acts of the Chief Executive and the ratification by the people of the 1973 Constitution on the ground that they constitute political questions.

Thus, the President continued to be the dominant force in the legal landscape. Under Amendment No. 1 of the 1973 Constitution, the president was further given the unusual power to make laws. Congress abdicated its lawmaking powers, the first time legislative power was surrendered to the executive. With the legislative and executive powers concentrated in the presidency, the judiciary became more passive in the exercise of its power of review. There was more resort to the doctrine of political question to justify non-interference in acts of government.

Soon, the volume and velocity of the problems that confronted the Marcos government reached a disturbing level [J]udicial control of government wrongdoings weakened, proving to be critical to the administration's fate. The passivity with which the power of judicial review was wielded by the courts drove those who sought grievance for their complaints to take to the streets. Street sovereignty reigned over the sovereignty of the parliament; the people's tribunal determined what the rule of law ought to be and not the courts of justice. In the end, people power settled the issues which the courts declined to resolve36 ςrνll

And 'born out of the trauma of martial law, the 1987 Constitution relies on a strengthened judiciary not only to safeguard the liberties of the people but also to prevent the unwarranted assumption of power by the other two departments of government.37 ςrνll

With the words '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,38 the scope of judicial inquiry broadened into areas which the Court under previous constitutions would have normally left to the political departments to decide.39 ςrνll

Included in this new found strength is the Court's power-duty to review economic measures implementing policy as Dean Pacifico A. Agabin, counsel for intervenor, Chamber of Mines, more than adequately explains:

The 1987 Constitution follows the modern trend. It is not made out of the same mold as the American federal constitution. While the latter is almost silent on government intervention in the economy, our constitution is replete with provisions for regulation of the economy and of the state's positive obligation to promote social justice. As its framers like to put it, our present constitution is 'pro-people, pro-poor, and pro-Filipino. This means that the Philippine Supreme Court, unlike the U.S. Supreme Court, cannot promote the development of capitalist institutions at the expense of the people. It cannot assume the function of protecting the market from various regulatory incursions if these conflicts with the economic policies incorporated in the constitution. While the constitutional tools which may be used to protect free enterprise have been copied in the present constitution, like the due process clause, the equal protection clause, the contracts clause, and the takings clause, these have been neutralized not only by the reversals by the Supreme Court but also by countervailing policies in the constitution itself. Unless we reduce the constitution to a mere imitation of its American counterpart, the Supreme Court cannot behave like the U.S. Supreme Court during the Gilded Age when it tilted the balance in favor of free markets over the sovereignty of the people.

Of course, the basic understanding behind our politico-legal culture is that the function of our electorally accountable legislative branch is to make policy choices; the function of our electorally accountable executive branch is to administer policy choices; and the function of our electorally unaccountable judicial branch is merely to enforce policy choices. Proceeding from this premise, it becomes clear that it is the duty of our Supreme Court to enforce policy choices especially if these are provided for in the fundamental law. While 'originalists' think that it is illegitimate for the judiciary to go beyond the enforcement of policy to the making of policy, and while it is illegitimate for the judiciary to oppose itself to the democratic departments of government, it must now follow that it is the legitimate duty of the judiciary to enforce policy which has been constitutionalized by the people. It must be granted that policies constitutionalized by the people constitute valid delegations of power to the Supreme Court, which it cannot shirk to enforce if its members are to be true to their oath to support the constitution. To draw an analogy from the U.S. Constitution, it is like the ideals of liberty and equality which are enshrined in that constitution To paraphrase Justice Benjamin Cardozo, these 'are preserved against the assaults of opportunism, the scorn and derision of those who have no patience with general principles, by enshrining them in constitutions, and consecrating to the task of their protection a body of defenders. Since the 'body of defenders' referred to is the Supreme Court, it cannot shirk the defense of provisions embodied in the constitution without abdicating its duty, not to mention that of the individual justices to uphold the constitution. To quote Justice Felix Frankfurter in another context, 'the course of constitutional history has cast responsibilities upon the Supreme Court which it would be 'stultification for it to evade.40

x x x

Critics of the Supreme Court are not really against judicial review of economic policy in principle. They are against judicial review only if the Court declares a law unconstitutional, or if it reverses administrative agency action implementing economic policy as grave abuse of discretion. In short, they are against the use of judicial review as a veto power, with the Supreme Court sitting as a super legislature or as super executive. But this depends, as one wag puts it, on 'whose ox is being gored.

x x x

This attack against judicial 'intrusion in economic policy is off-tangent in the Philippine context. This view of the limited role of the Court uses the American constitution as its frame of reference, and sees the Court as the counterpart of the American Supreme Court. Indeed, it is reminiscent of the American cultural bias for non-intervention in economic affairs. Perhaps in our day and age, with globalization and liberalization of trade and commerce as the pervasive buzzwords, this is the proper perspective.41 But the historical fact is that the Philippine constitution is not completely carved out of the pattern of the American constitution. 'The Philippine constitution is cast in the modern mold which lists a number of economic, social, and

educational policies which the Court is bound to enforce. This enforcement of economic policy, which necessarily carries with it the interpretation of words and phrases used in the constitution, gives the Court not only the opportunity but also the duty to review economic measures implementing policy.42 (Citations omitted; emphasis and underscoring supplied).

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Thus, I do not believe that the issue of whether the State receives a just share of the proceeds from the country's mineral wealth under the Mining Act and its implementing rules can be lightly rebuffed as a 'policy question. Section 2, Article XII of the Constitution provides that agreements with foreign-owned corporations 'for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils' be, among other considerations, 'based on real contributions to the economic growth and general welfare of the country. Thus, the discretion of the legislative and executive branches is clearly circumscribed by this constitutional limitation.43 ςrνll

As discussed in my Dissenting Opinion of December 1, 2004, I do not believe that the Mining Act and its implementing rules comply with this constitutional requirement. Instead, I find that the Mining Act and its implementing rules provide for the unconstitutional transfer of the beneficial ownership of Philippine mineral resources to foreign hands.


In light of the foregoing, and for the specific reasons discussed fully in my Dissenting Opinion of December 1, 2004, I vote to grant petitioners' Motion for Reconsideration, qualified by this Court's Decision of January 27, 2004.

CONCHITA CARPIO MORALES
Associate Justice

Endnotes:


1 As clarified and amended by this Court's Resolution dated January 25, 2005.

2 La Bugal-BLaan Tribal Association, Inc. v. Ramos, G.R. No. 127882, December 1, 2004.

3 Ibid.

4 281 SCRA 330 (1997).

5 G.R. No. 158540, July 8, 2004.

6 La Bugal-BLaan Tribal Association, Inc. v. Ramos, supra.

7 Motion for Reconsideration at 19.

8 Id. at 23-24.

9 Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J., dissenting).

10 Payne v. Tennessee, 501 U.S. 808, 844 (1991) (Marshall, J., dissenting).

11 People v. Bugarin, 273 SCRA 384, 393 (1997).

12 M. Gerhardt, T. Rowe, Jr., R. Brown & G. Spann, Constitutional Theory: Arguments and Perspectives 26 (2nd ed., 2000).

13 Vide: O. W. Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897).

14 M. Gerhardt, T. Rowe, Jr., R. Brown, supra at 27 (2nd ed., 2000).

15 Ibid.

16 Stare decisis et non quieta movere. To adhere to precedents, and not to unsettle things which are established. [Black's Law Dictionary 1406 (1990 6thed.)]

17 522 U.S. 3 (1997).

18 Id. at 20.

19 B. Cardozo, The Nature of the Judicial Process 33-34 (1921).

20 D. Tatel, Judicial Methodology, Southern School Desegregation, and the Rule of Law, 79 N.Y.U.L. Rev. 1071, 1074 (2004).

21 Ibid.

22 N. Barry, The Classical Theory of Law, 73 Cornell L. Rev. 283, 285-286 (1988).

23 Videnote 20, supra at 1075-1076.

24 H. Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).

25 Id. at 19.

26 Id. at 15.

27 Id. at 19-20.

28 421 SCRA 148 (2004).

29 Vide: www.manilatimes.net/national/ 2004/feb/05/yehey/business/20040205bus10.php

30 www.mindanews.com/2004/12/03nws-impeach.php

31 R. Puno, Judicial Review: Quo Vaids?, 79 Phil. L. J. 249, 263 (2004).

32 Supra.

33 Id. at 370.

34 As discussed fully in my Dissenting Opinion of December 1, 2004.

35 http://federalistpatriot.us/fedpapers/fed_51.php.

36 R. Puno, supra at 258-259.

37 P. Agabin, Judicial Review of Economic Policy under the 1987 Constitution, 72 Phil. L. J. 176, 189 (1997).

38 In its entirety, Section 1, Article VIII of the 1987 Constitution reads:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

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.

39 Marcos v. Manglapus, 177 SCRA 668, 695 (1989).

40 P. Agabin, supra at 183-184.

41 En passant, Dean Agabin has written an article regarding the judicial function in the Philippines in the midst of globalization. Vide: P. Agabin, Globalization and the Judicial Function in the Philippines, Soka L. Rev. Nov. 1999, p. 1.

42 P. Agabin, supra at 193-194.

43 Vide: La-Bugal Blaan Tribal Assoc., Inc. v. Ramos, 421 SCRA 148, 207-208 (2004).

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