News- 21May08: Solons File Petition for Certiorari vs JMSU


Case Brief
Title of the Case:
Petition for Certiorari and Prohibition with Application for Temporary Restraining Order and/or Preliminary Injunction
Petitioners:
Bayan Muna Reps. Satur C. Ocampo and Teodoro A. Casiño
Anakpawis Rep. Crispin B. Beltran
Gabriela Women’s Reps. Liza L. Maza and Luzviminda C. Ilagan
Quezon Rep. Lorenzo R. Tañada III
Bukidnon Rep. Teofisto L. Guingona III
Respondents:
President Gloria Macapagal- Arroyo
Executive Secretary Eduardo R. Ermita
Secretary of the Department of Foreign Affairs
Secretary of the Department of Energy
Philippine National Oil Company
Philippine National Oil Company Exploration Corporation,

STATEMENT OF THE CASE

1. This case is about the following:
(a) State’s ownership of its natural resources (Article XII, Section 2 (1), 1987 Philippine Constitution) ;
(b) That the exploration, development, and utilization of natural resources shall be under the full control and supervision of the State (Article XII, Section 2 (1), 1987 Philippine Constitution) ;
(c) That the State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements only with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by Filipino citizens State (Article XII, Section 2 (1), 1987 Philippine Constitution) ;
(d) That the allowable and permissible undertakings for the exploration, development, and utilization of natural resources, including petroleum and other mineral oils, are only those that are clearly and categorically expressed under Article XII, Section 2, of the 1987 Philippine Constitution.
2. The agreement entitled “A Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea” (Tripartite Agreement) by and among Philippine National Oil Company, China National Offshore Oil Corporation, and Vietnam Oil and Gas Corporation is unconstitutional and void on the following grounds (please see discussion on page 3, number 7):
(a) The Tripartite Agreement itself, its execution, and its continued implementation are unconstitutional as they allow the large-scale exploration of petroleum and other mineral oils by corporations wholly-owned by foreign states in clear violation of Article XII, Section 2, paragraph 1, of the 1987 Philippine Constitution.
(b) The Tripartite Agreement itself, its execution, and its continued implementation are unconstitutional because they are not covered and sanctioned by any of the allowable and permissible undertakings under Article XII, Section 2, of the 1987 Philippine Constitution.
3. Public respondents have committed grave abuse of discretion amounting to lack or excess of jurisdiction, to wit: –
(a) Pres. Gloria Macapagal-Arroyo and Executive Secretary Eduardo Ermita for authorizing, permitting, and tolerating, both expressly and impliedly, the execution, signing, and continued implementation of the Tripartite Agreement in clear violation of Article XII, Section 2 (1), of the 1987 Philippine Constitution;
(b) Secretary of the Department of Foreign Affairs for participating in the planning, negotiations, and preparations that led to the eventual execution, signing, and approval of the unconstitutional and void Tripartite Agreement in clear violation of Article XII, Section 2 (1), of the 1987 Philippine Constitution;
(c) Secretary of the Department of Energy for issuing the permit to Philippine National Oil Company – Exploration Corporation (PNOC-EC), which permit constituted the Philippine Government’s approval of the Tripartite Agreement in clear violation of Article XII, Section 2 (1), of the 1987 Philippine Constitution;
(d) Philippine National Oil Company (PNOC) for entering into a Tripartite Agreement with corporations wholly-owned by foreign States for large-scale exploration of petroleum and other mineral oils within Philippine-owned and claimed territory, and in the continued implementation thereof, in clear violation of Article XII, Section 2 (1), of the 1987 Philippine Constitution;
(e) Philippine National Oil Company – Exploration Corporation (PNOC-EC) for becoming, and allowing itself to be, an assignee of the rights and obligations of the PNOC under the unconstitutional and void Tripartite Agreement in clear violation of Article XII, Section 2 (1), of the 1987 Philippine Constitution;
4. CNOOC and PetroVietnam are state-owned companies of China and Vietnam , respectively, and are representing the governments of the said States in the Tripartite Agreement. PNOC is the representative of the Philippine Government in the Tripartite Agreement.
Given the extent and coverage of the Tripartite Agreement, and the factual nature of the undertaking, which is the collection and processing of 2D and/or 3D seismic lines within the agreement area for a joint exploration of petroleum resource potential by the Parties, the State compromises and bargains away its national economy and patrimony, national sovereignty, territorial integrity, and national interest.
Specifically, the Philippines sells out to the other Parties to the Tripartite Agreement the following:
(a) Our potential petroleum resource within the agreement area;
(b) Our clear and undisputed territories, archipelagic waters, territorial sea, and exclusive economic zone covered by and within the agreement area;
(c) Our claimed and occupied land territories, archipelagic waters, territorial sea, and exclusive economic zone covered by and within the agreement area; and
(d) Our claimed land territories, archipelagic waters, territorial sea, and exclusive economic zone covered by and within the agreement area.
The State likewise undermines, compromises, and weakens our claim over the disputed Spratly Group of Islands by virtue of the execution and the continued implementation of the Tripartite Agreement.
5. Prayer of the Petitioners: That the Honorable Supreme Court issue a judgment:
a. Declaring the Tripartite Agreement as unconstitutional and void;
b. Annulling the “A Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea ” by and among Philippine National Oil Company, China National Offshore Oil Corporation, and Vietnam Oil and Gas Corporation; and
c. Enjoining the public respondents from further implementation of the Tripartite Agreement;
6. A Temporary Restraining Order and/or Preliminary Injunction is likewise prayed for on the following grounds:
a. Grave and irreparable injury results to Petitioners, as legislators, taxpayers, and citizens of the Republic of the Philippines , who are directly affected by the continued implementation of the Tripartite Agreement;
b. Grave and irreparable injury results to the Petitioners and to the whole country, as the State is not be able to protect and preserve, and in fact sells out to foreign countries, its sovereignty, territory, and interest by the continued implementation of the Tripartite Agreement;
c. Grave and irreparable injury results to the Petitioners, as taxpayers, with the continuous illegal disbursement of public funds in the continued implementation of the Tripartite Agreement;
d. Grave and irreparable injury results as the continued implementation of the Tripartite Agreement causes the national economy and patrimony, national sovereignty, territorial integrity, and national interest to be compromised and bargained away unashamedly;
e. The continued implementation of the Tripartite Agreement during the pendency of the proceedings of this Petition shall work grave and irreparable injury and injustice to the Petitioners and to the whole country; and
f. There is no other plain, speedy, and adequate remedy to address these pervasive injuries to the Petitioners and to the country before this Petition could be heard by the Honorable Court.
7. Discussion of the grounds that the Tripartite Agreement is unconstitutional and void:
(a) The Tripartite Agreement itself, its execution, and its continued implementation are unconstitutional as they allow the large-scale exploration of petroleum and other mineral oils by corporations wholly-owned by foreign states in clear violation of Article XII, Section 2, paragraph 1, of the 1987 Philippine Constitution:
(i) The Tripartite Agreement is for exploration of petroleum and other mineral oils as its purpose is the collection and processing of 2D and/or 3D seismic lines through seismic work, which is already part of and within the exploration process of such natural resources:
(a) Article 4 (4.1) of the Tripartite Agreement clearly and specifically established that such “joint research of petroleum resource potential” shall be undertaken and carried out through seismic work;
(b) While the Tripartite Agreement, under its fifth whereas clause, expressly provides that the joint research of petroleum resource potential is a mere “pre-exploratory activity”, its Article 4.1, however, expressly provides the manner of such joint research “that certain amount of 2D and/or 3D seismic lines shall be collected and processed and certain amount of existing 2D seismic lines shall be reprocessed within the Agreement Term;”
(c) The collection and processing of 2D and/or 3D seismic lines constitute exploratory activity, and not a mere pre-exploratory activity. As far as the oil and gas industry is concerned, seismic work, survey, or mapping is considered an integral part of the exploration process of petroleum and other mineral oils, and not a mere pre-exploration activity. Every available literature on the matter states that seismic work, survey, or mapping is an exploration method, hence, part of the exploration process;
(d) It can be gleaned from the facts and circumstances leading to the conclusion of the execution and signing of the Tripartite Agreement that the use of the phrase “pre-exploratory activity” is a mere afterthought on the part of the Parties thereto in order to circumvent, or get around of, any constitutional issue or controversy on the matter. By using the phrase “pre-exploratory activity,” the Parties thereto simply want to give the Tripartite Agreement a semblance or an appearance of legality or constitutionality;
(ii) The Tripartite Agreement itself, its execution, and its continued implementation are a clear violation of Article XII, Section 2, paragraph 1, of the 1987 Philippine Constitution.
(e) Article XII, Section 2 (1) (1987 Philippine Constitution) . All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporation or associations at least sixty per centum of whose capital is owned by such citizens. xxx” (Emphasis supplied)
(f) The fact that the Tripartite Agreement involves corporations CNOOC and PetroVietnam, which are wholly-owned by foreign countries China and Vietnam, respectively, (as the CNOOC and PetroVietnam are state-owned national oil companies of China and Vietnam, respectively) in the joint venture, joint undertaking, or joint partnership with the PNOC in the large-scale exploration of our petroleum and other mineral oils, the Tripartite Agreement clearly and unequivocally violates Article XII, Section 2, paragraph 1, of the 1987 Philippine Constitution, hence it is unconstitutional and void;
(g) The Tripartite Agreement’s violation of the said provision is so obvious and evident that the Tripartite Agreement itself, its execution, and its continued implementation smack of downright constitutional mockery;
(h) The Philippines has no full control and supervision over the exploration of our petroleum and other mineral oils under the Tripartite Agreement. How could the State (Philippines) assert such full control and supervision under the Tripartite Agreement when the other co-equal Parties thereto are aliens – being corporations wholly-owned by foreign countries – and whose authority to enter into such agreement, and their continued participation thereto, was, is, and will always be subject to the concurrence and approval of the governments of the said foreign countries, namely China and Vietnam?;
(b) The Tripartite Agreement itself, its execution, and its continued implementation are unconstitutional because they are not covered and sanctioned by any of the allowable and permissible undertakings under Article XII, Section 2, of the 1987 Philippine Constitution.
(i) Article XII, Section 2 (1987 Philippine Constitution) provides the only ways by which our natural resources may be explored, developed, and utilized, to wit:
(a) The State may undertake these exploration, development, and utilization activities through either of the following:
(i) By itself directly and solely, or
(ii) By (i) co-production; (ii) joint venture; or (iii) production sharing agreements with Filipino citizens or corporations, at least 60 percent of the capital of which is owned by such citizens.
(b) Small-scale utilization of natural resources may be allowed by law in favor of Filipino citizens.
(c) For large-scale exploration, development, and utilization of minerals, petroleum and other mineral oils, the President may enter into “agreements with foreign-owned corporations involving either technical or financial assistance according to the general terms and conditions provided by law x x x.”
(ii) The Tripartite Agreement is not one of the above-mentioned allowable and permissible agreements under the 1987 Philippine Constitution.
(iii)The Tripartite Agreement patently and grossly set aside, disregarded, and ignored fundamental State Policies embodied in the 1987 Philippine Constitution resulting to mockery thereof to the detriment and prejudice of our national sovereignty, territorial integrity, and national interest:
Article II. Section 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.
Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.” (Emphasis supplied)
The acts of the public respondents in allowing and authorizing the execution, signing, and continued implementation of the Tripartite Agreement constitute a treachery of the highest order, a betrayal of paramount proportions.#

Vincent Michael L. Borneo
Political Affairs Officer
(Media and Public Relations)
Office of BAYAN MUNA Rep. Teddy A. Casiño
Rm. 508, North Wing Bldg.,
House of Representatives, Quezon City
Telefax no: 931-5911

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