G.R. No. 182734, January 10,2023,

♦ Decision,

Gaerlan, [J]

♦ Separate Concurring Opinion,

Gesmundo, [CJ]

♦ Concurring Opinion,

Leonen, [J]

♦ Dissenting Opinion,

Lazaro-Javier, [J]

♦ Dissenting Opinion,

Zalameda, [J]

EN BANC

[ G.R. No. 182734. January 10, 2023 ]

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

DISSENT

LAZARO-JAVIER,

J.:

Antecedents

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

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

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

ponencia

, citing the petition and its reference to Article 11.6 of the JMSU:

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

To borrow the words of the

ponencia

, the JMSU was all about:

The JMSU has a term of three years starting from the date of commencement of its implementation (Agreement Term). According to its fourth whereas clause, its execution is an expression of the Parties' commitment "to pursue efforts to transform the South China Sea into an area of peace, stability, cooperation, and development." Consequently, the Parties desire "to engage in a joint research of petroleum resource potential of a certain area of the South China Sea as a pre-exploration activity." The JMSU shall cover 142,886 square kilometers of the Agreement Area, defined, and marked out by the geographic location and coordinates of the connecting points of the boundary lines in the Annex attached to the agreement. Article 4(1) of the JMSU authorizes the conduct by the Parties of "seismic work" in the Agreement Area,

viz

4.1. It is agreed 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. The seismic work shall be conducted in accordance with the seismic program unanimously approved by the Parties taking into account the safety and protection of the environment in the Agreement Area.

For the proper performance of the joint activity, the Parties shall establish a Joint Operating Committee (JOC) as soon as possible after the JMSU is signed. The Parties shall each appoint three representatives to the JOC. The JOC's powers, among others, include the formulation of a Joint Operating Procedure (JOP) for the conduct of the joint activity. As a rule, the Parties agreed to have effective and equal participation in all activities relevant to the implementation of the JMSU ....

The

ultimate results

of the JMSU were

"documents, information, data,

and

reports

with respect to the

joint marine seismic undertaking.

" As to these outcomes, the parties were bound by a confidential agreement which provided that outcomes would not be disclosed by any of them to any other party absent of their unanimous written consent.

The JMSU itself contained a

confidentiality clause

that prevented its disclosure. Hence, the

ponencia

could only surmise, as explained by the prefatory use of the word

"allegedly"

in the following narration:

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

There is

no certified copy of the JMSU

on record. Hence, it is also admitted that the

location of the JMSU activities

has

not

been

established with certainty.

The

ponencia

proceeded though:

Before proceeding to the substance of the case, We clarify that

the JMSU covers the portion of the South China Sea claimed by the Philippines, China, and Vietnam.

The ninth whereas clause of the agreement declared that its signing will not undermine the basic positions held by the Government of each Party on the South China Sea issue. However, petitioners alleged that the Agreement Area is within the EEZ of the Philippines and includes almost 80% of the Spratly Group of Islands. This is not disputed by respondents. On September 5, 2012, then President Benigno C. Aquino III issued Administrative Order (AO) No. 29 titled, "Naming the West Philippine Sea of the Republic of the Philippines, and for Other Purposes." The AO stated that the maritime areas on the western side of the Philippine archipelago shall be named as the West Philippine Sea, which shall include the Luzon sea as well as the waters around, within and adjacent to the Kalayaan Island Group and Bajo De Masinloc, also known as the Scarborough Shoal.

Notwithstanding AO No. 29, We shall not refer to the Agreement Area as the West Philippine Sea. As admitted by petitioners, no official copy of the map covering the JMSU had been released to the public owing to the confidentiality clause in the agreement.

The maps attached to the petition were from (1) an onl ine news article, and (2) made by Prof. Giovanni Tapang, Ph.D. of the National Institute of Physics, University of the Philippines Diliman based on the coordinates stated on the copy of the map from the said article.

As such, We cannot assume that the Agreement Area is included in the West Philippine Sea. We are only certain that based on the attached maps and the non-rebutted claim of petitioners, the Agreement Area is within the Philippines' EEZ.

Therefore, whatever natural resources found therein are owned by the Republic.

For sure, we cannot

assume facts not in evidence.

We cannot assist petitioners' case to meet. The Court after all is an impartial arbiter.

£A⩊phi£

There are

unanswered

questions of fact

that in turn depended upon answers to prejudicial

questions of law.

What we have is an

incomplete case record to which we cannot supply the facts

to be able to come out with a judgment.

In any event, on

June 30, 2008,

as everyone admits, the JMSU

expired.

My Dissent

1. Doctrine of Hierarchy of Courts

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

As in Sisyphus' lament, my first issue with the

ponencia

fundamental.

Petitioners

bear the burden

of proving facts. This Court does not unearth the facts for them. Much less should we

supply the facts

to give substance to their petition. We

cannot overcome

the

weaknesses

of our legal system

unless

we learn to

abide by the rules

that are there in the first place to govern us.

Here, there are

unmistakable questions of fact.

This is the situation because respondents invoke the

confidentiality

of the entirety of the JMSU. Right or wrong, this invocation does not relieve petitioners of their burden to

challenge

this claim of

privilege

by invoking

discovery

and the

subpoena

power of our courts. Only then, when petitioners have hurdled the claim of privilege, they can

have their true copy

of the JMSU, with all its

verified contents

(both text and annexes) and

circumstances of execution

if at all, and for the Court, the

facts

at its doorstep, to be able to resolve the transcendental issues of the day.

But as it is, we

do not have

the facts - the JMSU itself and its circumstances. Because petitioners

chose to go directly

to this Court. Where could they have gone? The obvious answer is the court where

subpoenas

are applied for - the

trial courts.

Of course, we may also deign to issue the subpoenas,

but must we?

We are

not triers of facts.

If we give petitioners this benefit today, should we not also accord the same preferential attention to others? The Court's lifeline is built on

precedents.

This is a rule both of

procedure

and

substance.

We follow

precedents

because it provides

stability

and

equality

to all. That is why, this Court and the other courts

should not simply cave in

to claims for

exceptions.

must

also

not decide cases

on the basis of

online news articles

and

hearsay

(

i.e.,

out-of-court, unauthenticated)

statements

that

favor only petitioners.

Unfortunately, the

ponencia

hinged its facts

on them too.

The

doctrine of hierarchy of courts

exists precisely to

filter

those cases that must

first pass

the trial courts where the

evidentiary record

and

findings

are completed. This is because:

... direct recourse to this Court is

allowed only to resolve questions of law,

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

We cannot

supply

the facts, and worse,

without evidence

. This procedure

goes against

the fabric of the Comi's constitution as an impartial tribunal. We cannot accept as facts if

allegedly

they merely

appear

to be the facts. We cannot accept

allegations

as facts as a result of respondents' silence,

even if their silence is due to their claim of privilege

2. Mootness

The JMSU had

expired

June 30, 2008.

The text of this agreement is gone. There are

no lingering circumstances

that bother anyone of us. Truly,

we do not even know

if the JMSU was ever implemented at all. It is

unknown

if our country, the Socialist Republic of Vietnam, and the People's Republic of China, or their respective factotums, would

ever enter into

and

execute

another JMSU in the future.

Clearly, these circumstances

disqualify

this case from the

exceptions

to the doctrine of

mootness:

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

For us to conclude that there

grave violation of the

Constitution

, there must be

prima facie

evidence of the

existence

of this grave violation, the

nature

of this grave violation, the

continuing state

of this grave violation, and the

nexus

between the assailed official act and the grave violation. Unfortunately, for the reasons already mentioned, the Court

does not have a true copy

of the JMSU and its places of execution, and

does not know

the

circumstances of its implementation.

With the JMSU's expiration,

the

Constitution

still being violated? Obviously, we

cannot

conclude that it is because there are

no facts

to base this conclusion on.

Neither can we say that "the situation is of exceptional character and paramount public interest is involved." To be sure, it is the

JMSU's exceptional character

as a result of

what it allegedly represents

that should

compel

this Court simply to

dismiss

this case. If we are to believe as facts the narration in the

ponencia

, this is because the JMSU is meant to be:

... an expression of the Parties' commitment "to

pursue efforts

to transform the South China Sea into an

area of peace, stability, cooperation,

and

development.

" Consequently, the Parties' desire "to engage in a joint research of petroleum

resource potential

of a certain area of the South China Sea as a pre-exploration activity."

The

mootness doctrine

allows the Court to by-pass the very difficult route of deciding this case that

would definitely impact adversely upon the country's foreign relations posturing.

By leaving the constitutional issue undecided,

again assuming the ponencia 's narration represents the facts,

we give our public officers that

flexibility and ability

to deal with our country's foreign relations in accordance with our

paramount public interests

as they unfold and

without embarrassing them

with the blot that what they did was unconstitutional. In other words, there is

valor in prudence at this time

when it is not even necessary to paint ourselves to a corner.

The

third exception

- the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public - does

not

apply. We are

not required

as of now to formulate any controlling principles for two reasons: (i) the facts

have not

been established as all we have are speculations based on an online article, a hearsay statement, and the admission by silence though due to a claim of privilege; and (ii) respondents are

content

with the present state of the law and there is no

clamor

for such controlling principles. If at all, the clamor is for

respectful

and

dignified unity

and

peace

with other countries, which the Court is

simply not competent to achieve.

The

capable of repetition yet evading review exception

has two elements: (1) the duration of the challenged action must be

too short to be fully litigated

prior to its cessation or expiration; and (2) there must be

reasonable expectation

that the same complaining party will be subjected to the same action again.

It is

admitted

that the

JMSU was short-lived

- a

fact

that clearly calls for

restraint

and

prudence

on our part. Still, petitioners have

not shown

that respondents have in the

pipeline

another JMSU to be entered into and implemented. All that the

ponencia

refers to is the

potential

possibility

of another JMSU coming into existence. The standard is

not potential

possibility.

Everything is a potential or a possibility in life. This is an

unworkable

standard. Rather, the burden is to show a

reasonable expectation.

Reason

requires

basis.

cannot simply speculate

that another JMSU is coming. Petitioners have to

show facts

and

circumstances,

not merely allege them.

Overall, petitioner cannot

literally repeat

the

wordings

of the

exceptions without explaining

how each of them is present. It cannot

merely ask the Court to accept what in the first place should be proved;

especially for a case of

unforeseeable consequences

both here and abroad, and not just abroad but to

our ticklish relations with rivals where armed conflict is a factor.

3. Lis mota

With the foregoing

exigent

bases for

resolving

the present case, the

constitutional

issue posed by petitioners sorely

lacks

the requisite peg of

lis mota

to stand on.

Estrada v. Desierto,

We explained that:

Basic is the principle that a constitutional issue may only be passed upon

if essential to the decision

of a case or controversy. Even if all the requisites for judicial review are present, this Court will not entertain a constitutional question unless it is the very

lis mota

of the case or

if the case can be disposed of on some other grounds,

such as the application of a statute or general law. Thus, in

Sotto v. Commission on Elections

, we held -

. . . It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties, and that when it is raised,

if the record also presents some other ground upon which the court may rest its judgment, that course will be adopted and the constitutional question will be left for consideration until a case arises

in which a decision upon such question will be unavoidable. (Emphasis supplied.)

In herein case, the question of who has jurisdiction to entertain petitions for

certiorari

questioning the Ombudsman's orders or resolutions in criminal cases can be answered by resorting to the aforecited cases of

Kuizon v. Ombudsman, Mendoza-Arce v. Office of the Ombudsman

and

Perez v. Office of the Ombudsman.

Consequently,

there is no need to delve into the constitutionality

of Section 14 of Rep. Act No. 6770 as case law already supplies the key. (Emphasis supplied.)

The clear and impeccable grounds to decide this case are

hierarchy of courts

and

mootness

. The case can be resolved on these grounds. Therefore, the

constitutionality

of the JMSU is

not triggered.

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

Nonetheless, if we have to decide this case on the merits, with due respect, I still

cannot subscribe

to the

ponencia

I preface this discussion with the

assumption

that the narration in

ponencia

states the

correct facts

of this case.

With this, I respectfully

disagree

with the

ponencia

's characterization of the instant case as one falling

solely

under Section 2, Article XII of the

Constitution

on the

exploration, development,

and

utilization

of the country's natural resources. Rather, to me, the issue is

predominantly

foreign relations

matter that requires

deference

to the

reasonable

actions of respondents. Consequently, our

definition

of the word

exploration

must be

sensitive

to the

foreign relations

element of the JMSU.

Section 2, Article XII of the

Constitution

states:

SECTION 2. 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 corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. (Emphasis supplied.)

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.

The President may enter into 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 according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

One.

The JMSU is

not primarily

for the purpose of inviting other countries to partake of the country's natural resources. Instead, the

primordial purpose

is to

trail-blaze efforts

at establishing a

code of conduct

among claimant-countries to

resolve amicably conflicting territorial claims

over disputed territories. This is clear from the

alleged

clauses of the JMSU, which to quote again are:

... an expression of the Parties' commitment "

to pursue efforts

to transform the South China Sea into an

area of peace, stability, cooperation,

and

development."

Consequently, the Parties desire "to engage in a joint research of petroleum

resource potential

of a ce1iain area of the South China Sea as a pre-exploration activity."

As a

foreign relations instrument,

rather than

just being

an exploration-development-utilization agreement, the JMSU must be interpreted in relation to our

Constitution

in the

most deferential light

to the

true

decision-makers' conceptualization of what it is. To reiterate the

doctrine

how courts should deal

with foreign relations' matters:

Vinuya v. Romulo,

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

Although the citation has to do with the matter of according

diplomatic immunity,

the reasoning therein is

with more reason applicable to the present case

where the very fabric of the country's

national security

, not simply

embarrassment to the world-at-large

as in the diplomatic immunity cases, is at stake. How we deal with real troublesome neighbor-sovereigns

should

be a

matter left deferentially

to the

resolution

of our

foreign affairs

officials. The Court must

not double dip

in these matters in

doubtful cases

because we risk adverse outcomes to both our

national security

and

international standing.

Thus, our courts have

limited

power under the

Constitution

to require the executive branch to do anything in the area of foreign policy. The

decision

to deal with the West Philippine Sea issue in the manner such as the JMSU

falls directly

within the prerogative powers of the executive to conduct foreign relations, including the

right to speak freely with foreign states

on all such matters.

1âшphi1

This is one of the executive's

residual powers

that is legally left in the hands of the executive through the President.

While limited, it is nonetheless

a source of non-statutory administrative power

accorded by jurisprudence

and statute

to the Chief Executive. To stress, the power in foreign affairs includes the making of representations to foreign governments. The decision to

enter into the JMSU

was made in the exercise of this power over foreign relations.

In exercising its powers over foreign relations, the executive is not exempt from constitutional scrutiny. It is for the executive and not the courts to decide whether and how to exercise its powers, but the courts

clearly have the jurisdiction and the duty to determine

whether this power asserted by the executive does in fact exist and, if so, whether its exercise infringes the Constitution:

The

limited

power of the comis to review exercises of the foreign relations power for constitutionality reflects the fact that in a constitutional democracy, all government power must be exercised in accordance with the Constitution. This said,

judicial review

of the exercise of this power for constitutionality

remains sensitive

to the fact that

the executive branch of government is responsible for decisions under this power

, and that

the executive is better placed to make such decisions within a range of constitutional options.

The

government must have flexibility

in deciding how its duties under the power are to be discharged. But it is for the

courts to determine the legal and constitutional limits

within which such decisions are to be taken. It follows that in the case of

refusal by a government to abide by constitutional constraints,

courts are

empowered to make orders

ensuring that the government's foreign affairs powers are exercised in accordance with the

Constitution

Having concluded that the courts possess a

narrow power to review

and

intervene on matters of foreign affairs

to ensure the

constitutionality

of executive action, the final question is

how now to exercise this power?

In my opinion, our

first concern

is that our review

must not give little weight

to the constitutional responsibility of the executive to make

decisions on matters of foreign affairs in the context of complex and ever-changing circumstances

, taking into account our

broader national interests.

Our

second concern

is the

impact

of the

relief

the Court is going to provide in the premises. Here, the JMSU

involves areas

, which, if the

ponencia

's narration were to be believed, are far from the

immediate control

of the Court and even the national government as a whole and where other countries are prowling with their own armed forces. The

likelihood

that the remedy will be

effective

unclear

. The

impact

on our foreign relations of a declaration of

unconstitutionality cannot be properly assessed

by the Court.

This brings us to our

third concern

, already mentioned above: the

inadequacy of the evidentiary record

. The record before us gives a necessarily

incomplete picture of the range of considerations

currently faced by petitioners and respondents in assessing the relief prayed for. We do

not know

what

negotiations

, if at all, may have been taking place or will take place, between the parties to the JMSU. As observed elsewhere:

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

The

evidentiary uncertainties

, the

limitations of the Court's institutional competence

, and the

need to respect the foreign relations powers of the executive

, lead me to conclude that the proper remedy is to interpret the word

exploration

in Section 2, Article XII of the

Constitution

in a manner that

liberally considers

the

foreign relations element

in the instrument in which it is implicated, which is the JMSU, but which must still be

reasonable.

Two.

The JMSU

does not involve the exploration,

development and utilization of natural resources as envisioned in Section 2, Article XII of the Constitution. This is because the JMSU is

not intended to extract and carry off of natural resources

from the project areas. An exploration in this context is

not covered

by Section 2, Article XII. To fall under the latter, the

exploration must involve

the

extraction

and

carrying off of natural resources

This interpretation is

not new

in the Philippines. It is

recognized

in subsections 3(q) and (aq) of

Philippine Mining Act of 1995

and in

Apex Mining Co. Inc. v. Southeast Mindanao Gold Mining Corporation.

This interpretation of

exploration

as being

exempt

from Section 2, Article XII has been

upheld

La Bugal-B'laan Tribal Association Inc. v. Ramos.

This interpretation is also

consistent with

the

characterization

of this case as

predominantly

foreign relations

matter where the Court

should tread more carefully than usual

upsetting

the foreign relations power of the executive.

Only

in the

clearest

of cases

may

the Court dictate upon the executive on what to do in matters of foreign relations and impose a relief that is based on

clear

and

solid evidentiary footing

on how it upholds the

Constitution

, how it impacts on the executive's conduct of international relations, and how it involves our paramount public interests. In the absence of such evidentiary assurances, we ought to

defer within reason

to the executive's decision in the premises.

Based on the foregoing, I dissent. Accordingly, I vote to deny the petition.

Footnotes

Oscar Tan, "Vigilante Lawyering" at https://opinion.inquirer.net/111677/must-end-vigilante- lawyering#ixzz7eUqXU66H, last accessed on September 10, 2022.

GIOS-SAMAR v. Department of Transportation and Communications

, 896 Phil. 213, 257 (2019) [Per J. Jardeleza, En Banc].

Madrilejos v. Gatdula.

G.R. No. 184389, September 24, 2019 [Per J. Jardeleza, En Banc].

487 Phil. 169, 181 (2004) [Per J. Chico-Nazario. En Banc].

Arigo v. Swift,

743 Phil. 8, 44 (2014) [Per J. Villarama, Jr.. En Banc].

Marcos v. Manglapus,

258 Phil. 479-541 (1989) [Per J. Cortes, En Banc].

Id.

Section 20, Chapter 7, Title I, Book III of the Administrative Code of 1987.

Kaunda v. President of the Republic of South Africa

, [ 2004 ] ZACC 5, 136 I.L.R. 452, at para. 77, South African Legal Information Institute, at https://www.saflii.org/za/cases/ZACC/2004/5.html (last accessed on September 9, 2022).

SECTION 3.

Definition of Terms.

- As used in and for purposes of this Act, the following terms, whether in singular or plural, shall mean: (q) "Exploration" means the searching or prospec:ting for mineral resources by geological, geochemical or geophysical surveys, remote sensing, test pitting, trending, drilling, shaft sinking, tunneling, or any other means for the purpose of determining the existence, extent, quantity and quality thereof and the feasibility of mining them for profit. (aq) "Qualified person" means any citizen of the Philippines with capacity to contract, or a corporation, partnership, association, or cooperative organized or authorized for the purpose of engaging in mining, with technical and financial capability to undertake mineral resources development and duly registered in accordance with law at least sixty per centum(160%) of the capital of which is owned by citizens of the Philippines:

Provided,

That a legally organized foreign-owned corporation shall be deemed a qualified person for purposes of granting an exploration permit, financial or technical assistance agreement or mineral processing permit.

620 Phil. 100, 129 (2009) [Per J. Chico-Nazario, En Banc]: "An exploration permit grantee is vested with the right to conduct exploration only, while an FTAA or MPSA contractor is authorized to extract and carry off the mineral resources that may be discovered in the area. An exploration permit holder still has to comply with the mining project feasibility and other requirements under the mining law. It has to obtain approval of such accomplished requirements from the appropriate government agencies. Upon obtaining this approval, the exploration permit holder has to file an application for an FTAA or an MPSA and have it approved also. Until the MPSA application of SEM is approved, it cannot lawfully claim that it possesses the rights of an M PSA or FTAA holder, thus: ... prior to the issuance of such FTAA or mineral agreement. rhe exploration permit grantee (or prospective contractor) cannot yet be deemed to have entered into any contract or agreement with the State ... "

See 486 Phil. 754 (2004) [Per J. Panganiban, En Banc]

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