For resolution of the Court are the following motions: (1) Motion to Inhibit and for Re-Deliberation filed by respondent Amari Coastal Bay Development Corporation ("Amari" for brevity) on September 13, 2002;  (2) Motion to Set Case for Hearing on Oral Argument filed by Amari on August 20, 2002;  (3) Motion for Reconsideration and Supplement to Motion for Reconsideration filed by Amari on July 26, 2002 and August 20, 2002, respectively; (4) Motion for Reconsideration and Supplement to Motion for Reconsideration filed by respondent Public Estates Authority ("PEA" for brevity) on July 26, 2002 and August 8, 2002, respectively; and (5) Motion for Reconsideration and/or Clarification filed by the Office of the Solicitor General on July 25, 2002.  Petitioner Francisco I. Chavez filed on November 13, 2002 his Consolidated Opposition to the main and supplemental motions for reconsideration.

To recall, the Court's decision of July 9, 2002 ("Decision" for brevity) on the instant case states in its summary:

We can now summarize our conclusions as follows:

1.  The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by certificates of title in the name of PEA, are alienable lands of the public domain.  PEA may lease these lands to private corporations but may not sell or transfer ownership of these lands to private corporations.  PEA may only sell these lands to Philippine citizens, subject to the ownership limitations in the 1987 Constitution and existing laws.

2.  The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural resources of the public domain until classified as alienable or disposable lands open to disposition and declared no longer needed for public service. The government can make such classification and declaration only after PEA has reclaimed these submerged areas.  Only then can these lands qualify as agricultural lands of the public domain, which are the only natural resources the government can alienate.  In their present state, the 592.15 hectares of submerged areas are inalienable and outside the commerce of man.

3.  Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership of 77.34 hectares of the Freedom Islands, such transfer is void for being contrary to Section 3, Article XII of the 1987 Constitution which prohibits private corporations from acquiring any kind of alienable land of the public domain.

4.  Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156 hectares of still submerged areas of Manila Bay, such transfer is void for being contrary to Section 2, Article XII of the 1987 Constitution which prohibits the alienation of natural resources other than agricultural lands of the public domain.  PEA may reclaim these submerged areas. Thereafter, the government can classify the reclaimed lands as alienable or disposable, and further declare them no longer needed for public service.  Still, the transfer of such reclaimed alienable lands of the public domain to AMARI will be void in view of Section 3, Article XII of the 1987 Constitution which prohibits private corporations from acquiring any kind of alienable land of the public domain.

Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of the 1987 Constitution.  Under Article 1409 of the Civil Code, contracts whose "object or purpose is contrary to law," or whose "object is outside the commerce of men," are "inexistent and void from the beginning." The Court must perform its duty to defend and uphold the Constitution, and therefore declares the Amended JVA null and void ab initio.

Amari seeks the inhibition of Justice Antonio T. Carpio, ponente of the Decision, on the ground that Justice Carpio, before his appointment to the Court, wrote in his Manila Times column of July 1, 1997, "I have always maintained that the law requires the public bidding of reclamation projects."  Justice Carpio, then a private law practitioner, also stated in the same column, "The Amari-PEA reclamation contract is legally flawed because it was not bid out by the PEA."  Amari claims that because of these statements Justice Carpio should inhibit himself "on the grounds of bias and prejudgment" and that the instant case should be "re-deliberated" after being assigned to a new ponente.

The motion to inhibit Justice Carpio must be denied for three reasons.  First, the motion to inhibit came after Justice Carpio had already rendered his opinion on the merits of the case.  The rule is that a motion to inhibit must be denied if filed after a member of the Court had already given an opinion on the merits of the case,^[1] the rationale being that "a litigant cannot be permitted to speculate upon the action of the Court xxx (only to) raise an objection of this sort after a decision has been rendered."  Second, as can be readily gleaned from the summary of the Decision quoted above, the absence of public bidding is not one of the ratio decidendi of the Decision which is anchored on violation of specific provisions of the Constitution.  The absence of public bidding was not raised as an issue by the parties.  The absence of public bidding was mentioned in the Decision only to complete the discussion on the law affecting reclamation contracts for the guidance of public officials.  At any rate, the Office of the Solicitor General in its Motion for Reconsideration concedes that the absence of public bidding in the disposition of the Freedom Islands rendered the Amended JVA null and void.^[2] Third, judges and justices are not disqualified from participating in a case just because they have written legal articles on the law involved in the case.  As stated by the Court in Republic v. Cocofed,^[3]

The mere fact that, as a former columnist, Justice Carpio has written on the coconut levy will not disqualify him, in the same manner that jurists will not be disqualified just because they may have given their opinions as textbook writers on the question involved in a case.

Besides, the subject and title of the column in question was "The CCP reclamation project" and the column referred to the Amari-PEA contract only in passing in one sentence.

Amari's motion to set the case for oral argument must also be denied since the pleadings of the parties have discussed exhaustively the issues involved in the case.

The motions for reconsideration reiterate mainly the arguments already discussed in the Decision.  We shall consider in this Resolution only the new arguments raised by respondents.

In its Supplement to Motion for Reconsideration, Amari argues that the Decision should be made to apply prospectively, not retroactively to cover the Amended JVA.  Amari argues that the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal consequences are attached, citing De Agbayani v. PNB,^[4] thus:

x x x. It does not admit of doubt that prior to the declaration of nullity such challenged legislative or executive act must have been in force and had to be complied with. This is so as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience and respect. Parties may have acted under it and may have changed their positions. What could be more fitting than that in a subsequent litigation regard be had to what has been done while such legislative or executive act was in operation and presumed to be valid in all respects. It is now accepted as a doctrine that prior to its being nullified, its existence as a fact must be reckoned with. This is merely to reflect awareness that precisely because the judiciary is the governmental organ which has the final say on whether or not a legislative or executive measure is valid, a period of time may have elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of fairness and justice then, if there be no recognition of what had transpired prior to such adjudication.

In the language of an American Supreme Court decision: "The actual existence of a statute, prior to such a determination [of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.  The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official."  This language has been quoted with approval in a resolution in Araneta v. Hill and the decision in Manila Motor Co., Inc. v. Flores.  x x x.

x x x

x x x  That before the decision they were not constitutionally infirm was admitted expressly. There is all the more reason then to yield assent to the now prevailing principle that the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal consequences are attached.

Amari now claims that "assuming arguendo that Presidential Decree Nos. 1084 and 1085, and Executive Order Nos. 525 and 654 are inconsistent with the 1987 Constitution, the limitation imposed by the Decision on these decrees and executive orders should only be applied prospectively from the finality of the Decision."

Amari likewise asserts that a new doctrine of the Court cannot operate retroactively if it impairs vested rights.  Amari maintains that the new doctrine embodied in the Decision cannot apply retroactively on those who relied on the old doctrine in good faith, citing Spouses Benzonan v. Court of Appeals,^[5] thus:

At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as amended was that enunciated in Monge and Tupas cited above. The petitioners Benzonan and respondent Pe and the DBP are bound by these decisions for pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines." But while our decisions form part of the law of the land, they are also subject to Article 4 of the Civil Code which provides that "laws shall have no retroactive effect unless the contrary is provided." This is expressed in the familiar legal maxim lex prospicit, non respicit, the law looks forward not backward. The rationale against retroactivity is easy to perceive. The retroactive application of a law usually divests rights that have already become vested or impairs the obligations of contract and hence, is unconstitutional (Francisco v. Certeza, 3 SCRA 565 [1961]).

The same consideration underlies our rulings giving only prospective effect to decisions enunciating new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607 [1974] "x x x when a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively and should not apply to parties who had relied on the old doctrine and acted on the faith thereof.

There may be special cases where weighty considerations of equity and social justice will warrant a retroactive application of doctrine to temper the harshness of statutory law as it applies to poor farmers or their widows and orphans. In the present petitions, however, we find no such equitable considerations. Not only did the private respondent apply for free agricultural land when he did not need it and he had no intentions of applying it to the noble purposes behind the law, he would now repurchase for only P327,995.00, the property purchased by the petitioners in good faith for P1,650,000.00 in 1979 and which, because of improvements and the appreciating value of land must be worth more than that amount now.

The buyers in good faith from DBP had a right to rely on our rulings in Monge and Tupas when they purchased the property from DBP in 1979 or thirteen (13) years ago. Under the rulings in these two cases, the period to repurchase the disputed lot given to respondent Pe expired on June 18, 1982. He failed to exercise his right. His lost right cannot be revived by relying on the 1988 case of Belisario. The right of petitioners over the subject lot had already become vested as of that time and cannot be impaired by the retroactive application of the Belisario ruling.

Amari's reliance on De Agbayani and Spouses Benzonan is misplaced.  These cases would apply if the prevailing law or doctrine at the time of the signing of the Amended JVA was that a private corporation could acquire alienable lands of the public domain, and the Decision annulled the law or reversed this doctrine.  Obviously, this is not the case here.

Under the 1935 Constitution, private corporations were allowed to acquire alienable lands of the public domain.  But since the effectivity of the 1973 Constitution, private corporations were banned from holding, except by lease, alienable lands of the public domain.  The 1987 Constitution continued this constitutional prohibition.  The prevailing law before, during and after the signing of the Amended JVA is that private corporations cannot hold, except by lease, alienable lands of the public domain.  The Decision has not annulled or in any way changed the law on this matter.  The Decision, whether made retroactive or not, does not change the law since the Decision merely reiterates the law that prevailed since the effectivity of the 1973 Constitution.  Thus, De Agbayani, which refers to a law that is invalidated by a decision of the Court, has no application to the instant case.

Likewise, Spouses Benzonan is inapplicable because it refers to a doctrine of the Court that is overruled by a subsequent decision which adopts a new doctrine.  In the instant case, there is no previous doctrine that is overruled by the Decision.  Since the case of Manila Electric Company v. Judge Castro-Bartolome,^[6] decided on June 29, 1982, the Court has applied consistently the constitutional provision that private corporations cannot hold, except by lease, alienable lands of the public domain.  The Court reiterated this in numerous cases, and the only dispute in the application of this constitutional provision is whether the land in question had already become private property before the effectivity of the 1973 Constitution.^[7] If the land was already private land before the 1973 Constitution because the corporation had possessed it openly, continuously, exclusively and adversely for at least thirty years since June 12, 1945 or earlier, then the corporation could apply for judicial confirmation of its imperfect title. But if the land remained public land upon the effectivity of the 1973 Constitution, then the corporation could never hold, except by lease, such public land.  Indisputably, the Decision does not overrule any previous doctrine of the Court.

The prevailing doctrine before, during and after the signing of the Amended JVA is that private corporations cannot hold, except by lease, alienable lands of the public domain.  This is one of the two main reasons why the Decision annulled the Amended JVA.  The other main reason is that submerged areas of Manila Bay, being part of the sea, are inalienable and beyond the commerce of man, a doctrine that has remained immutable since the Spanish Law on Waters of 1886. Clearly, the Decision merely reiterates, and does not overrule, any existing judicial doctrine.

Even on the characterization of foreshore lands reclaimed by the government, the Decision does not overrule existing law or doctrine.  Since the adoption of the Regalian doctrine in this jurisdiction, the sea and its foreshore areas have always been part of the public domain.  And since the enactment of Act No. 1654 on May 18, 1907 until the effectivity of the 1973 Constitution, statutory law never allowed foreshore lands reclaimed by the government to be sold to private corporations.  The 1973 and 1987 Constitution enshrined and expanded the ban to include any alienable land of the public domain.

There are, of course, decisions of the Court which, while recognizing a violation of the law or Constitution, hold that the sale or transfer of the land may no longer be invalidated because of "weighty considerations of equity and social justice."^[8] The invalidation of the sale or transfer may also be superfluous if the purpose of the statutory or constitutional ban has been achieved.  But none of these cases apply to Amari.

Thus, the Court has ruled consistently that where a Filipino citizen sells land to an alien who later sells the land to a Filipino, the invalidity of the first transfer is corrected by the subsequent sale to a citizen.^[9] Similarly, where the alien who buys the land subsequently acquires Philippine citizenship, the sale is validated since the purpose of the constitutional ban to limit land ownership to Filipinos has been achieved.^[10] In short, the law disregards the constitutional disqualification of the buyer to hold land if the land is subsequently transferred to a qualified party, or the buyer himself becomes a qualified party.  In the instant case, however, Amari has not transferred the Freedom Islands, or any portion of it, to any qualified party.  In fact, Amari admits that title to the Freedom Islands still remains with PEA.^[11]

The Court has also ruled consistently that a sale or transfer of the land may no longer be questioned under the principle of res judicata, provided the requisites for res judicata are present.^[12] Under this principle, the courts and the parties are bound by a prior final decision, otherwise there will be no end to litigation. As the Court declared in Toledo-Banaga v. Court of Appeals,^[13] "once a judgement has become final and executory, it can no longer be disturbed no matter how erroneous it may be."  In the instant case, there is no prior final decision adjudicating the Freedom Islands to Amari.

There are, moreover, special circumstances that disqualify Amari from invoking equity principles.  Amari cannot claim good faith because even before Amari signed the Amended JVA on March 30, 1999, petitioner had already filed the instant case on April 27, 1998 questioning precisely the qualification of Amari to acquire the Freedom Islands.   Even before the filing of this petition, two Senate Committees^[14] had already approved on September 16, 1997 Senate Committee Report No. 560. This Report concluded, after a well-publicized investigation into PEA's sale of the Freedom Islands to Amari, that the Freedom Islands are inalienable lands of the public domain. Thus, Amari signed the Amended JVA knowing and assuming all the attendant risks, including the annulment of the Amended JVA.

Amari has also not paid to PEA the full reimbursement cost incurred by PEA in reclaiming the Freedom Islands.  Amari states that it has paid PEA only P300,000,000.00^[15] out of the P1,894,129,200.00 total reimbursement cost agreed upon in the Amended JVA.  Moreover, Amari does not claim to have even initiated the reclamation of the 592.15 hectares of submerged areas covered in the Amended JVA, or to have started to construct any permanent infrastructure on the Freedom Islands.   In short, Amari does not claim to have introduced any physical improvement or development on the reclamation project that is the subject of the Amended JVA.  And yet Amari claims that it had already spent a "whopping P9,876,108,638.00" as its total development cost as of June 30, 2002.^[16] Amari does not explain how it spent the rest of the P9,876,108,638.00 total project cost after paying PEA P300,000,000.00.  Certainly, Amari cannot claim to be an innocent purchaser in good faith and for value.

In its Supplement to Motion for Reconsideration, PEA claims that it is "similarly situated" as the Bases Conversion Development Authority (BCDA) which under R.A. No. 7227 is tasked to sell portions of the Metro Manila military camps and other military reservations.  PEA's comparison is incorrect.  The Decision states as follows:

As the central implementing agency tasked to undertake reclamation projects nationwide, with authority to sell reclaimed lands, PEA took the place of DENR as the government agency charged with leasing or selling reclaimed lands of the public domain.  The reclaimed lands being leased or sold by PEA are not private lands, in the same manner that DENR, when it disposes of other alienable lands, does not dispose of private lands but alienable lands of the public domain.  Only when qualified private parties acquire these lands will the lands become private lands.  In the hands of the government agency tasked and authorized to dispose of alienable or disposable lands of the public domain, these lands are still public, not private lands.

PEA is the central implementing agency tasked to undertake reclamation projects nationwide.  PEA took the place of Department of Environment and Natural Resources ("DENR" for brevity) as the government agency charged with leasing or selling all reclaimed lands of the public domain.  In the hands of PEA, which took over the leasing and selling functions of DENR, reclaimed foreshore lands are public lands in the same manner that these same lands would have been public lands in the hands of DENR.  BCDA is an entirely different government entity.  BCDA is authorized by law to sell specific government lands that have long been declared by presidential proclamations as military reservations for use by the different services of the armed forces under the Department of National Defense.  BCDA's mandate is specific and limited in area, while PEA's mandate is general and national.  BCDA holds government lands that have been granted to end-user government entities the military services of the armed forces.  In contrast, under Executive Order No. 525, PEA holds the reclaimed public lands, not as an end-user entity, but as the government agency "primarily responsible fo integrating, directing, and coordinating all reclamation projects for and on behalf of the National Government."

In Laurel v. Garcia,^[17] cited in the Decision, the Court ruled that land devoted to public use by the Department of Foreign Affairs, when no longer needed for public use, may be declared patrimonial property for sale to private parties provided there is a law authorizing such act.  Well-settled is the doctrine that public land granted to an end-user government agency for a specific public use may subsequently be withdrawn by Congress from public use and declared patrimonial property to be sold to private parties.  R.A. No. 7227 creating the BCDA is a law that declares specific military reservations no longer needed for defense or military purposes and reclassifies such lands as patrimonial property for sale to private parties.

Government owned lands, as long they are patrimonial property, can be sold to private parties, whether Filipino citizens or qualified private corporations.  Thus, the so-called Friar Lands acquired by the government under Act No. 1120 are patrimonial property^[18] which even private corporations can acquire by purchase.  Likewise, reclaimed alienable lands of the public domain if sold or transferred to a public or municipal corporation for a monetary consideration become patrimonial property in the hands of the public or municipal corporation. Once converted to patrimonial property, the land may be sold by the public or municipal corporation to private parties, whether Filipino citizens or qualified private corporations.

We reiterate what we stated in the Decision is the rationale for treating PEA in the same manner as DENR with respect to reclaimed foreshore lands, thus:

To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as private lands will sanction a gross violation of the constitutional ban on private corporations from acquiring any kind of alienable land of the public domain.   PEA will simply turn around, as PEA has now done under the Amended JVA, and transfer several hundreds of hectares of these reclaimed and still to be reclaimed lands to a single private corporation in only one transaction.   This scheme will effectively nullify the constitutional ban in Section 3, Article XII of the 1987 Constitution which was intended to diffuse equitably the ownership of alienable lands of the public domain among Filipinos, now numbering over 80 million strong.

This scheme, if allowed, can even be applied to alienable agricultural lands of the public domain since PEA can "acquire x x x any and all kinds of lands."  This will open the floodgates to corporations and even individuals acquiring hundreds, if not thousands, of hectares of alienable lands of the public domain under the guise that in the hands of PEA these lands are private lands.  This will result in corporations amassing huge landholdings never before seen in this country creating the very evil that the constitutional ban was designed to prevent.  This will completely reverse the clear direction of constitutional development in this country.  The 1935 Constitution allowed private corporations to acquire not more than 1,024 hectares of public lands.  The 1973 Constitution prohibited private corporations from acquiring any kind of public land, and the 1987 Constitution has unequivocally reiterated this prohibition.

Finally, the Office of the Solicitor General and PEA argue that the cost of reclaiming deeply submerged areas is "enormous" and "it would be difficult for PEA to accomplish such project without the participation of private corporations."^[19] The Decision does not bar private corporations from participating in reclamation projects and being paid for their services in reclaiming lands. What the Decision prohibits, following the explicit constitutional mandate, is for private corporations to acquire reclaimed lands of the public domain. There is no prohibition on the directors, officers and stockholders of private corporations, if they are Filipino citizens, from acquiring at public auction reclaimed alienable lands of the public domain.  They can acquire not more than 12 hectares per individual, and the land thus acquired becomes private land.

Despite the nullity of the Amended JVA, Amari is not precluded from recovering from PEA in the proper proceedings, on a quantum meruit basis, hatever Amari may have incurred in implementing the Amended JVA prior to its declaration of nullity.

WHEREFORE, finding the Motions for Reconsideration to be without merit, the same are hereby DENIED with FINALITY.  The Motion to Inhibit and for Re-Deliberation and the Motion to Set Case for Hearing on Oral Argument are likewise DENIED.

SO ORDERED.

Davide, Jr., C.J., Vitug, Panganiban, Quisumbing, Austria- Martinez, Carpio-Morales, and Callejo, Sr., JJ., concur.

Bellosillo, J., please see separate opinion, concurring and dissenting.

Puno, J., please see separate opinion.

Ynares-Santiago, and Sandoval-Gutierrez, JJ., please see dissenting opinion.

Corona, J., I dissent.

Azcuna, J., I take no part.

---

^[1] Limpin, Jr. v. IAC, 161 SCRA 83 (1988); Araneta v. Dinglasan, 84 Phil. 368 (1949).

^[2] Motion for Reconsideration of the Office of the Solicitor General, p. 3.

^[3] En Banc Resolution of February 26, 2002.

^[4] 38 SCRA 429 (1971).

^[5] 205 SCRA 515 (1992).

^[6] 114 SCRA 799 (1982).

^[7] Republic v. CA and Iglesia ni Cristo, and Republic v. Cendaña and Iglesia ni Cristo, 119 SCRA 449 (1982); Republic v. Villanueva and Iglesia ni Cristo, 114 SCRA 875 (1982); Director of Lands v. Lood,  124 SCRA 460 (1983); Republic v. Iglesia ni Cristo, 128 SCRA 44 (1984); Director of Lands v. Hermanos y Hermanas de Sta. Cruz de Mayo, Inc., 141 SCRA 21 (1986);  Director of Lands v. IAC and Acme Plywood & Veneer Inc., 146 SCRA 509 (1986); Republic v. IAC and Roman Catholic Bishop of Lucena, 168 SCRA 165 (1988); Natividad v. CA, 202 SCRA 493 (1991); Villaflor v. CA and Nasipit Lumber Co., 280 SCRA 297 (1997).  In Ayog v. Cusi, Jr., 118 SCRA 492 (1982), the Court did not apply the constitutional ban in the 1973 Constitution because the applicant corporation, Biñan Development Co., Inc., had fully complied with all its obligations and even paid the full purchase price before the effectivity of the 1973 Constitution, although the sales patent was issued after the 1973 Constitution took effect.

^[8] Spouses Benzonan v. Court of Appeals, note 5.

^[9] United Church Board for World Ministries v. Sebastian, 159 SCRA 446 (1988); Sarsosa Vda. de Barsobia v. Cuenco, 113 SCRA 547 (1982); Godinez v. Pak Luen, 120 SCRA 223 (1983);  Vasquez v. Giap and Li Seng Giap & Sons, 96 Phil. 447 (1955).

^[10] Lee v. Republic, G.R. No. 128195, October 3, 2001; Yap v. Maravillas, 121 SCRA 244 (1983); De Castro v. Teng, 129 SCRA 85 (1984).

^[11] Amari's Motion for Reconsideration, p. 10.

^[12] Republic v. Court of Appeals, G.R. No. 101115, August 22, 2002; Firestone Ceramics v. Court of Appeals, 313 SCRA 522 (1999); Herrera v. Canlas, 310 SCRA 318 (1999); People's Homesite and Housing Corporation v. Mencias, 20 SCRA 1031 (1967); Galvez v. Tuason, 10 SCRA 344 (1964).

^[13] 302 SCRA 331 (1999).

^[14] Committee on Government Corporations and Public Enterprises, and Committee on Accountability of Public Officers and Investigations.

^[15] Amari's Motion for Reconsideration, p. 49.

^[16] Ibid., p. 50.

^[17] 187 SCRA 797 (1990); See also Ignacio v. Director of Lands, 108 Phil. 335 (1960); Cebu Oxygen & Acetylene Co., Inc. v. Bercilles, 66 SCRA 481 (1975).

^[18] Central Capiz v. Ramirez, 40 Phil. 883 (1920); Jacinto v. Director of Lands, 49 Phil. 853 (1926); Pugeda v. Trias, 4 SCRA 849 (1962); De la Cruz v. De la Cruz, 130 SCRA 666 (1984).

^[19] OSG's Motion for Reconsideration, pp. 22-24; PEA's Supplement to Motion for Reconsideration, p.12.

And in the naked light I saw
Ten thousand people, maybe more.
People talking without speaking,
People hearing without listening,
People writing songs that voices never share
And no one dared
Disturb the sound of silence.
    - Paul Simon, Sound of Silence

BELLOSILLO, J.:

A STEREOTYPICAL ACTION, AN ARCHETYPAL RESPONSE, A MATTER OF DUE PROCESS a motion for reconsideration relieves the pressure of mistakes shrouded in the mystified body of putative precedents. It serves the traditional and standard procedure for a second chance not only in favor of party-litigants but the courts as well, before taking that great leap of faith into stare decisis where even our errors are etched as rules of conduct or, as our conscious choice would have it, into the jural postulate of a civilized society where men are able to assume that they may control, for purposes beneficial to them, what they have created by their own labor and what they have acquired under the existing social and economic order. With such opportunity presenting itself in the instant case, I am up to the task of scrutinizing a monumental challenge to the course of economic decision-making inherent not in the mandate of this Court but in those of the accountable political branches of our government whose long-standing discretion we have thrashed a perfunctory acquiescence amidst the disturbing sound of silence is certainly feckless and inappropriate.

First, my concurrence. I am happy that this Court has stuck to a civil libertarian's honesty and transparency in government service when interpreting the ambit of the people's right to information on matters of public concern. Nothing can be more empowering on this aspect than to compel access to all information relevant to the negotiation of government contracts including but not limited to evaluation reports, recommendations, legal and expert opinions, minutes of meetings, terms of reference and other documents attached to such reports or minutes, all relating to any proposed undertaking. This to me encourages our people to watch closely the proprietary acts of State functionaries which more often than not, because they have been cloaked in technical jargon and speculation due to the absence of verifiable resource materials, have been left unaccounted for public debate and searching inquiry.

Having said what is positively remarkable about the ponencia, let me discuss the crux of my dissent.

Firstly, as explained by the contracting parties now adversely affected by the Decision to nullify ab initio the Amended Joint Venture Agreement (AJVA), there is no reason to go that far to prove a point. I agree with them. According to the ponencia, the AJVA was intended to

x x x develop the Freedom Islands. The JVA also required the reclamation of an additional 250 hectares of submerged areas surrounding these islands to complete the configuration in the Master Development Plan of the Southern Reclamation Project-MCCRRP x x x x The subject matter of the Amended JVA, as stated in its second Whereas clause, consists of three properties, namely: 1.  `[T]hree partially reclaimed and substantially eroded islands along Emilio Aguinaldo Boulevard in Paranaque and Las Piñas, Metro Manila, with a combined titled area of 1,578,441 square meters;' 2. `[A]nother area of 2,421,559 square meters contiguous to the three islands;' and 3. `[A]t AMARI's option as approved by PEA, an additional 350 hectares more or less to regularize the configuration of the reclaimed area.' PEA confirms that the Amended JVA involves "the development of the Freedom Islands and further reclamation of about 250 hectares. . .,' plus an option `granted to AMARI to subsequently reclaim another 350 hectares . . .' In short, the Amended JVA covers a reclamation area of 750 hectares. Only 157.84 hectares of the 750-hectare reclamation project have been reclaimed, and the rest of the 592.15 hectares are still submerged areas forming part of Manila Bay. Under the Amended JVA, AMARI will reimburse PEA the sum of P1,894,129,200.00 for PEA's `actual cost' in partially reclaiming the Freedom Islands. AMARI will also complete, at its own expense, the reclamation of the Freedom Islands. AMARI will further shoulder all the reclamation costs of all the other areas, totaling 592.15 hectares, still to be reclaimed. AMARI and PEA will share, in the proportion of 70 percent and 30 percent, respectively, the total net usable area which is defined in the Amended JVA as the total reclaimed area less 30 percent earmarked for common areas.  Title to AMARI's share in the net usable area, totaling 367.5 hectares, will be issued in the name of AMARI. Section 5.2 (c) of the Amended JVA provides that `. . . , PEA shall have the duty to execute without delay the necessary deed of transfer or conveyance of the title pertaining to AMARI's land share based on the Land Allocation Plan. PEA, when requested in writing by AMARI, shall then cause the issuance and delivery of the proper certificates of title covering AMARI's Land Share in the name of AMARI,. . . ; provided, that if more than seventy percent (70%) of the titled area at any given time pertains to AMARI, PEA shall deliver to AMARI only seventy percent (70%) of the titles pertaining to AMARI, until such time when a corresponding proportionate area of additional land pertaining to PEA has been titled.' Indisputably, under the Amended JVA AMARI will acquire and own a maximum of 367.5 hectares of reclaimed land which will be titled in its name. To implement the Amended JVA, PEA delegated to the unincorporated PEA-AMARI joint venture PEA's statutory authority, rights and privileges to reclaim foreshore and submerged areas in Manila Bay. Section 3.2.a of the Amended JVA states that - `PEA hereby contributes to the joint venture its rights and privileges to perform Rawland Reclamation and Horizontal Development as well as own the Reclamation Area, thereby granting the Joint Venture the full and exclusive right, authority and privilege to undertake the Project in accordance with the Master Development Plan.'  The Amended JVA is the product of a renegotiation of the original JVA dated April 25, 1995 and its supplemental agreement dated August 9, 1995.^[1]

But the AJVA, which is basically a specie of an "I do, you give" contract, is severable in the sense that AMARI's share in the project need not be paid in parcels of the reclaimed land but also in cash. The majority cannot set this alternative aside since lawyers for AMARI are also interested in this substitute option if all else fail.^[2] Another tame solution, so they say, is for the Public Estates Authority to hold title to the reclaimed lands until transferred to a qualified transferee.^[3] This too is possible in the name of equity. To be sure, the prestation in the PEA-AMARI contract is not contrary to law or public policy since the government stands to be benefited by AMARI's part of the bargain while the latter must in turn be compensated for its efforts; in the present context service and compensation, "I do, you give" are certainly not illegal considerations. Since the baseless anxiety about the AJVA lies only in the mode of recompense for AMARI, and the AJVA offers an abundance of means to get it done, even granting that the ponencia has correctly understood the law to prevent permanently the transfer of reclaimed lands to AMARI, no reason could sanely justify voiding the entire contract and eternally deny a party its due for its onerous activities. As we have held in Republic v. Court of Appeals,^[4]

x x x it appearing that something compensable was accomplished by them, following the applicable provision of law and hearkening to the dictates of equity, that no one, not even the government shall unjustly enrich oneself/itself at the expense of another, we believe and so hold, that Pasay City and RREC should be paid for the said actual work done and dredge-fill poured in xxxx

Secondly, I am not comfortable with the idea of forever withholding reclaimed lands as unmoving assets in our developmental concerns.

Government lands are classified in a number of ways. They may be lands of the public domain, either alienable or inalienable, or lands of the private domain, which refer to "land belonging to and owned by the state as a private individual, without being devoted for public use, public service or the development of national wealth x x x similar to patrimonial properties of the State."^[5] Under the Civil Code, government lands can either be properties of the public dominion, or those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and others of similar character, or those which belong to the State, without being for public use, intended for some public service or for the development of the national wealth;^[6] or patrimonial properties of the State, i.e., properties other than properties of the public dominion or former properties of the public dominion that are no longer intended for public use or for public service.^[7] Clearly, the government owns real estate which is part of the "public lands" or alienable lands of the public domain and other real estate which is not a part thereof.

Alienable lands of the public domain, or those available for alienation or disposition, are part of the patrimonial properties of the State.^[8] They are State properties available for private ownership except that their appropriation is qualified by Secs. 2 and 3 of Art. XII of the Constitution and the public land laws.^[9] Before lands of the public domain are declared available for private acquisition, or while they remain intended for public use or for public service or for the development of national wealth, they would partake of properties of public dominion just like mines before their concessions are granted,^[10] in which case, they cannot be alienated or leased or otherwise be the object of contracts.^[11] In contrast, patrimonial properties may be bought or sold or in any manner utilized with the same effect as properties owned by private persons.^[12] Lands of the private domain, being patrimonial properties, are valid objects of contracts generally unfettered by the terms and conditions set forth in Secs. 2 and 3 of Art. XII of the Constitution, which refer only to lands of the public domain, nor by statutes for the settlement, prescription or sale of public lands.

The ponencia classified the reclaimed lands herein involved to be lands of the public domain. Thus, as summarized in the ponencia sought to be reconsidered

1.       The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by certificates of title in the name of PEA, are alienable lands of the public domain. PEA may lease these lands to private corporations but may not sell or transfer ownership of these lands to private corporations. PEA may only sell these lands to Philippine citizens, subject to the ownership limitations in the 1987 Constitution and existing laws.

2.       The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural resources of the public domain until classified as alienable or disposable lands open to disposition and declared no longer needed for public service. The government can make such classification and declaration only after PEA has reclaimed these submerged areas. Only then can these lands qualify as agricultural lands of the public domain, which are the only natural resources the government can alienate. In their present state, the 592.15 hectares of submerged areas are inalienable and outside the commerce of man.

3.       Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership of 77.34 hectares of the Freedom Islands, such transfer is void for being contrary to Section 3, Article XII of the 1987 Constitution which prohibits private corporations from acquiring any kind of alienable land of the public domain.

4.       Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156 hectares of still submerged areas of Manila Bay, such transfer is void for being contrary to Section 2, Article XII of the 1987 Constitution which prohibits the alienation of natural resources other than agricultural lands of the public domain. PEA may reclaim these submerged areas. Thereafter, the government can classify the reclaimed lands as alienable or disposable, and further declare them no longer needed for public service. Still, the transfer of such reclaimed alienable lands of the public domain to AMARI will be void in view of Section 3, Article XII of the 1987 Constitution which prohibits private corporations from acquiring any kind of alienable land of the public domain.^[13]

This is where I also disagree. Reclaimed lands are lands sui generis, as the majority would rule, and precisely because of this characterization we cannot lump them up in one telling swoop as lands of the public domain without due regard for vested rights as well as joint executive and legislative intent to provide otherwise. For, after all, it is the executive and legislative powers that determine land classification.^[14] To illustrate, in Province of Zamboanga del Norte v. City of Zamboanga^[15] this Court took note of the diverging "norms" provided by laws, i.e., the Civil Code and the Law of Municipal Corporations, in classifying municipal lands into either public or patrimonial, and held that "applying the norm obtaining under the principles constituting the Law of Municipal Corporations, all those x x x properties in question which are devoted to public service are deemed public; the rest remain patrimonial. Under this norm, to be considered public, it is enough that the property be held and devoted for governmental purposes like local administration, public education, public health, etc." Clearly, the categorization of government lands depends upon legislative intent which the courts must implement.

The Freedom Islands was reclaimed by the Construction and Development Corporation of the Philippines (CDCP) pursuant to a contract with the Republic whereby the former in exchange for its efforts would receive fifty percent (50%) of the total reclaimed land. This arrangement is authorized under Art. 5 of the Spanish Law of Waters which provides, "[l]ands reclaimed from the sea in consequence of works constructed by the State, or by the provinces, pueblos or private persons, with proper permission, shall become the property of the party constructing such works, unless otherwise provided by the terms of the grant of authority," and by PD 3-A (1973) stating that, "[t]he provisions of any law to the contrary notwithstanding, the reclamation of areas under water, whether foreshore or inland, shall be limited to the National Government or any person authorized by it under a proper contract (underscoring supplied)." Both statutes are still effective since neither one repeals the other but only a modification is inserted in that reclamation by a private contractor must now be governed by a "contract." As the standing laws, i.e., Art. 5 of the Spanish Law of Waters and PD 3-A, treat reclaimed lands as proper objects for disposition whether by grant of authority or contract, such reclaimed lands as they have been acquired by the State by means of a contract are not properties of public dominion but patrimonial lands of the State that it can dispose, and lands of the private domain that the State may alienate to anyone since the statutes make no restriction altogether.

The reclaimed lands pertaining to CDCP under the contract with the Republic are private properties of CDCP. The Republic is authorized to convey them to CDCP, a corporation duly organized and registered under the laws of the Philippines,^[16] and the lands themselves are products of CDCP's efforts, money and expertise. When CDCP acquires property, it does so in its private capacity in the course of the exercise of its corporate powers as a juridical entity and acting as an ordinary person capable of entering into contracts or making transactions for the transmission of title or other real rights.^[17] Under Art. 712 of the Civil Code, ownership and other real rights over property are acquired and transmitted by tradition in consequence of certain contracts. In fact, PD 1085 (1977)^[18] acknowledges the existence of rights in favor of CDCP and conditions the transfer of assets from CDCP to PEA upon the recognition and respect for "the rights and interests of the Construction and Development Corporation of the Philippines pursuant to the aforesaid contract," and furthermore, upon the transfer of "such portion or portions of the land reclaimed or to be reclaimed as provided for in the above-mentioned contract" to the contractor or his assignees.

The rest of the lands reclaimed by CDCP as Freedom Islands but belonging to the Republic under the contract, i.e., the other fifty percent (50%) thereof, are lands of the private domain. The reason is simple: this fifty percent (50%) to which the Republic is entitled is only an extension of the other fifty percent (50%) that went to CDCP as its private property in consideration of its reclamation. An "extension," signifies enlargement in any direction in length, breadth, or circumstance.^[19] Thus, in Manila Lodge No. 761 v. Court of Appeals^[20] we held: "[i]f the reclaimed area is an extension of the Luneta, then it is of the same nature or character as the old Luneta. Anent this matter, it has been said that a power to extend (or continue an act or business) cannot authorize a transaction that is totally distinct." Moreover, as in the case of lands obtained in escheat proceedings or succession which are properties of the private domain, the reclaimed lands are procured through the contract between the Republic and CDCP without which they would not have come into being.

The transfer of the Freedom Islands to the PEA under PD 1085 (both the fifty percent (50%) owned by CDCP and the other half owned by the Republic) does not alter the description of the reclaimed lands they remain lands of the private domain. In fact, the conveyance bolsters such characterization: fifty percent (50%) was obtained from a private owner, CDCP, hence subsuming it under the private domain.^[21] The other fifty percent (50%) belonging to the Republic is given to PEA in exchange for a participation in the latter's equity. As explained in DoJ Opinion No. 026, s. 1994, which answers negatively whether the President may transfer gratuitously the title of the Republic over all lands within the Old Bilibid Compound (OBC) in favor of the PEA, subject to the existing valid private rights if there be any, to form part of PEA's project-related asset pool

First and foremost, PEA's Charter delimits the contributions of the National Government to the PEA which are to be compensated by the equivalent number of shares of stocks of the PEA in the name of the Republic (Secs. 7 and 15, P. D. 1084). The proposed gratuitous transfer of valuable national government property of the PEA by a Presidential Proclamation would go beyond the amount of the contribution/exposure of the National Government to the capital of the PEA as prescribed by law and do away with the consideration therefor that is the equivalent number of shares of stocks of the PEA to be issued in the name of the National Government. Accordingly, the said proposal would run counter to the provisions of the abovementioned Charter, or amount to an amendment of the said law (underscoring supplied).

Consequently, under LOI 1390 (1984), to accelerate the development of the First Neighborhood Unit Project within the Manila-Cavite Coastal Road Project, an excess of the reclaimed land was ceded by PEA to the Marina Properties Corporation. Administrative Order No. 348 (1997) authorized PEA to undertake "pursuant to its charter (PD 1084 and PD 1085) ancillary reclamation works to put in place the drainage canals and outfalls and to negotiate and enter into such agreements including land-swapping, on a value for value basis, as may be necessary for the acquisition of rights-of-way (ROW) for the said major roads/drainage canals in order that these are undertaken at no cost or budgetary outlay on the part of PEA or the National Government (underscoring supplied)."^[22] Subsequently, AO No. 397 (1998) of then President Ramos settled claims of CDCP against PEA by conveying portions of the lands previously reclaimed under CDCP's contract with the Republic.

Evidently, by these official measures making the reclaimed lands available for the ownership of private corporations as transferees, the portions of land reclaimed by CDCP were not intended by the executive and legislative branches of government as proper authorities for such purpose to be labeled alienable lands of the public domain but lands of the private domain, hence, generally not subject to the strictures of Secs. 2 and 3 of Art. XII of the Constitution. There is none of the intention to devote them to public use in order that they may be considered as properties still of the public domain.^[23] As it is "only the executive and possibly the legislative department that have the authority and the power to make the declaration that said property is no longer required for public use,"^[24] or for that matter, already belongs to the private domain, and with the declaration having been made by enlisting the reclaimed lands as pieces of assets available for commercial use, they continue as private lands of the State when transferred to PEA, and from the latter as mode of compensation for AMARI in the assailed AJVA.

The authority to dispose of government lands is a strong indicum of the patrimonial composition of the properties.^[25] Ownership is the right to enjoy and dispose of a thing without further limitations than those established by law, and jus disponendi of one's property is an attribute of ownership. This is clear from PD 1084 (1977), the charter of PEA which states as among the purposes thereof to "reclaim land, including foreshore and submerged areas, by dredging, filling or other means, or to acquire reclaimed lands," or to "develop, improve, acquire, administer, deal in, subdivide, dispose, lease and sell any and all kinds of lands, buildings, estates and other forms of real property, owned, managed, controlled and/or operated by the government." To this end, PEA was empowered to "purchase, lease, build, alter, construct, erect, enlarge, occupy, manage, sell, mortgage, dispose of or otherwise deal in, buildings of every kind and character whatsoever, whether belonging to, or to be acquired by the Authority."

Significantly, to stress the legislative intent to segregate PEA's patrimonial lands or lands of the private domain which are being used as assets in its commercial undertakings from the realm of alienable lands of the public domain, PD 1084 purposely vested it with the right to "hold lands of the public domain in excess of [the] area permitted to private corporations by statute." In the same DoJ Opinion No. 026, s. 1994 mentioned above, it is articulated although ruefully that the power of PEA to dispose of its assets constitutes adequate legal basis under Sec. 48, Chapt. 12, Bk. I, of EO 292, the Administrative Code of 1997,^[26] as well as under our ruling in Laurel v. Garcia^[27] that "[i]t is not for the President to convey valuable real property of the government on his or her own sole will x x x [a]ny such conveyance must be authorized and approved by a law enacted by Congress x x x [i]t requires executive and legislative concurrence" for PEA to exercise validly such mandate.

The proscription of Secs. 2 and 3 of Art. XII of the Constitution finds no application in the instant case, especially as regards the 157.84 hectares of reclaimed lands comprising the Freedom Islands. As explained above, this real estate is not of the public domain but of the private domain. In the same way, the various public land laws in their essential parts do not govern the alienation of the Freedom Islands. What is more, reclaimed lands are not plain and simple patches of the earth as agricultural, timber or mineral lands are, in the full sense of being products of nature, but are the results of the intervention of man just like in the extraction of mineral resources, i.e., gold, oil, petroleum, etc. Landform encompasses only six (6) major categories: high mountains, low mountains, hills, plains with high relief features, plains of moderate relief and plains of slight relief.^[28] The terrain types identified by this system are established by a uniform set of descriptive properties, and nowhere do we read therein reclaimed lands. The origin of our islands as other islands in the western Pacific is believed to be "the upfoldings of ancient continental rocks with deep troughs between representing downfolds or down-dropped blocks x x x [h]ence, the elevations of those islands x x x which rest upon submarine platforms has been aided by deformation of the earth's crust"^[29] our islands were not created through the process of reclamation but through natural formation.

In fact, reclaimed lands are the result of man's interference with nature. They are not akin to land categories as we know them but more representative of the exploitation of natural resources coupled with the inventiveness of man. As mentioned above, the more relevant comparisons would be the exploration and utilization of mineral resources that are turned over to the private contractor in exchange for certain fees and royalties.^[30] To be sure, the constitutional injunction in Sec. 2 of Art XII that "[w]ith the exception of agricultural lands, all other natural resources shall not be alienated" was never intended to restrict our leaders in the executive branch to require in mineral agreements a stipulation "requiring the Contractor to dispose of the minerals and by-products produced at the highest market price and to negotiate for more advantageous terms and conditions subject to the right to enter into long-term sales or marketing contracts or foreign exchange and commodity hedging contracts which the Government acknowledges to be acceptable x x x x (underscoring supplied)"^[31]

Without doubt, what applies to reclamation projects is this portion of Sec. 2, Art. XII of the Constitution

x x x [t]he exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements [are] x x x under such terms and conditions as may be provided by law (underscoring supplied)."

The clause "under such terms and conditions as may be provided by law" refers to the standing laws affecting reclaimed lands, such as the PEA charter. The orientation to this portion of Sec. 2 explains why in most executive issuances and statutes relating to reclamation of lands we would read references to joint venture or production-sharing agreements. Hence, in EO 405 (1997) Authorizing the Philippine Ports Authority (PPA) to Reclaim and Develop Submerged Areas Vested in the PPA For Port-Related Purposes, it was noted in the "Whereas" Clauses that land reclamation and development projects are capital intensive infrastructure enterprises requiring huge financial outlays through joint venture agreements. In this light, we ought to resolve the instant reclamation project according to the clear intendment of the executive and legislative branches of government to handle reclaimed lands as patrimonial properties and lands of the private domain of the State.

As regards the real character of reclaimed lands, Sec. 302 of RA 7160 (1991)^[32] provides that "[t]he contractor shall be entitled to a reasonable return of its investment in accordance with its bid proposal as accepted by the local government unit concerned x x x x In case of land reclamation or construction of industrial estates, the repayment plan may consist of the grant of a portion or percentage of the reclaimed land or the industrial estate constructed." Under Sec. 6 of RA 6957 (1990),^[33] "the contractor shall be entitled to a reasonable return of its investment and operating and maintenance costs x x x x In the case of land reclamation or the building of industrial estates, the repayment scheme may consist of the grant of a portion or percentage of the reclaimed land or industrial estate built, subject to the constitutional requirements with respect to the ownership of lands." The mention of the "constitutional requirements" in RA 6957 has to do with the equity composition of the corporate recipient of the land, i.e., "corporations or associations at least sixty per centum of whose capital is owned by such citizens" and not to the outright prohibition against corporate ownership of lands of the public domain.^[34] It is also important to note that a "contractor" is any "individual, firm, partnership, corporation, association or other organization, or any combination of any thereof,"^[35] thus qualifying AMARI to receive a portion of the reclaimed lands.

There is nothing essentially wrong with the agreement between PEA and AMARI in that the latter would receive a portion of the reclamation project if successful. This is a common payment scheme for such service done. It is recognized under the Spanish Law of Waters and authorized by the PEA charter as well as by RA 6957. The assailed AJVA is not awarding AMARI a portion of the Manila Bay, a property of public dominion, but a fraction of the land to be uplifted from it, a land of the private domain. While the reclamation project concerns a future thing or one having potential existence, it is nonetheless a legitimate object of a contract.^[36]

We do not have to be confused regarding the nature of the lands yet to be reclaimed. They are the same as the Freedom Islands. Both are meant to serve legitimate commercial ends, hence, lands of the private domain intended by both the executive and legislative branches of government to be used as commercial assets. This objective is obvious from PD 1084 which empowers PEA to "enter into, make, perform and carry out contracts of every class and description, including loan agreements, mortgages and other types of security arrangements, necessary or incidental to the realization of its purposes with any person, firm or corporation, private or public, and with any foreign government or entity." Executive Order No. 525 (1979)^[37] provides that "[a]ll lands reclaimed by PEA shall belong to or be owned by the PEA which shall be responsible for its administration, development, utilization or disposition in accordance with the provisions of Presidential Decree No. 1084. Any and all income that the PEA may derive from the sale, lease or use of reclaimed lands shall be used in accordance with the provisions of Presidential Decree No. 1084." Finally, EO 654 (1981)^[38] mandates that "[i]n the disposition of its assets and properties, the Authority shall have the authority to determine the kind and manner of payment for the transfer thereof to any third party." Since the principal task of PEA is to reclaim lands or to approve the execution of it by others, its power to contract must necessarily involve dealings with the reclaimed lands.

Admittedly, our public land laws classify reclaimed lands as alienable lands of the public domain.^[39] Under such taxonomy, the real estate would fall within the prohibition against ownership by private corporations under Secs. 2 and 3, Art. XII, of the Constitution. Under the public land laws, the mode of disposing them is mainly through lease, or if titled in the name of a government entity, by sale but only to individual persons. But herein lies the rub - the nomenclature attached to reclaimed lands as belonging to the public domain is statutory in origin. This means, and ought to import, that the category may change according to legislative intent. The power to make laws includes the power to alter and repeal them. Nothing sacrosanct like a constitutional injunction exists that reclaimed lands be always classified as lands of the public domain; the class is statutory in foundation and so it may change accordingly, as it was modified for purposes of the mandate of the Public Estates Authority.

The issuance of a "special patent" under PD 1085, i.e., "Special Land Patent/Patents shall be issued by the Secretary of Natural Resources in favor of the Public Estate Authority without prejudice to the subsequent transfer to the contractor or his assignees of such portion or portions of the land reclaimed or to be reclaimed as provided for in the above-mentioned contract x x x [o]n the basis of such patents, the Land Registration Commission shall issue the corresponding certificates of title," does not mean that the reclaimed lands prior to such "special patent" are classified as lands of the public domain.

As a matter of ordinary land registration practice, a special patent is a "patent to grant, cede, and convey full ownership of alienable and disposable lands formerly covered by a reservation or lands of the public domain" and is issued upon the "promulgation of a special law or act of Congress or by the Secretary of Environment and Natural Resources as authorized by an Executive Order of the President."^[40] This meaning of a "special patent" cannot override the overwhelming executive and legislative intent manifest in PDs 1084 and 1085 to make the reclaimed lands available for contract purposes. What is important in the definition of "special patent" is the grant by law of a property of the Republic for the full ownership of the grantee while the classification of the land is not at all decisive in such description since the "special law or act of Congress" or the "Executive Order" may classify the subject land differently, as is done in the instant case. Thus the Department of Environment and Natural Resources (DENR), through the Reservation and Special Land Grants Section of the Land Management Division, is tasked to issue special patents in favor of "government agencies pursuant to special laws, proclamations, and executive orders x x x (underscoring supplied)."^[41] Verily, in the absence of a general law on the authority of the President to transfer to a government corporation real property belonging to the Republic,^[42] PD 1085 is free to choose the means of conveying government lands from the Republic to PEA, a government corporation, whether by special patent or otherwise without adjusting their character as lands of private domain.

Additionally, nothing momentous can be deduced from the participation of the Secretary of Natural Resources in the signing of the "special patent" since he is by law, prior to the transfer of the reclaimed lands to PEA, the land officer of the Republic for lands of the private domain as may be gleaned from Sec. 1 of Act 3038, the general law dealing with the disposition of lands of the private domain,^[43] i.e., "[t]he Secretary of Agriculture and Natural Resources is hereby authorized to sell or lease land of the private domain of the Government of the Philippines Islands x x x."^[44] This is because under the organization of the DENR, the Land Management Division is charged with the "planning, formulating, and recommending policies for the sound management and disposition of x x x friar lands, patrimonial properties of the government, and other lands under the region's administration as well as guidelines on land use and classification," while the Reservation and Special Land Grants Section thereof prepares the special patents proposed to be issued in favor of "government agencies pursuant to special laws, proclamations, and executive orders x x x x (underscoring supplied)"^[45]

The reference to a "special patent" is called for since the conveyance of the reclaimed lands begins with the Republic not with PEA. Once the transfer of the reclaimed lands is perfected by the issuance of special land patents signed by the Secretary of Natural Resources in favor of PEA, the subsequent disposition thereof, e.g. the transfer from PEA to AMARI, falls within the coverage of PEA's charter and cognate laws. The reason is that PEA is henceforth the owner of all lands reclaimed by it or by virtue of its authority "which shall be responsible for its administration, development, utilization or disposition in accordance with the provisions of Presidential Decree No. 1084."^[46] Significantly, for the registration of reclaimed lands alienated by PEA pursuant to its mandate, it is only necessary to file with the Register of Deeds the "instrument of alienation, grant, patent or conveyance" whereupon a certificate of title shall be entered as in other cases of registered land and an owner's duplicate issued to the grantee.

Indeed, there should be no fear calling reclaimed lands "lands of the private domain" and making them available for disposition if this be the legislative intent. The situation is no different from the trade of mineral products such as gold, copper, oil or petroleum. Through joint ventures that are allowed under the Constitution, our government disposes minerals like private properties. At the end of the pendulum, if we refer to reclaimed lands as lands of the public domain inalienable except to individual persons, then it is time to end all reclamation projects because these efforts entail too much expense and no individual person would have the capital to undertake it himself. We must not hamstring both the Executive and Congress from making full use of reclaimed lands as an option in following economic goals by the declaration made in the ponencia.

And what about rights that have been vested in private corporations in the meantime? In the words of Dean Roscoe Pound, "[i]n civilized society men must be able to assume that they may control, for purposes beneficial to themselves, what they have discovered and appropriated to their own use, what they have created by their own labor and what they have acquired under the existing social and economic order. This is a jural postulate of civilized society as we know it. The law of property in the widest sense, including incorporeal property and the growing doctrines as to protection of economically advantageous relations, gives effect to the social want or demand formulated in this postulate."^[47] It appears we have not accounted for the rights of others who are not even involved in the instant case.

The underlying issue is about trust and confidence in our government. If we want to deal with the perceived mistrust in the motivation of our leaders, the solution rests elsewhere. In the same manner that we do not have to scorch the face to treat a pimple, so must we not prevent executive and legislative intent from disposing reclaimed lands, which in the first place had to be "constructed" so it would exist, very much unlike the permanent patches of earth that we should rightly control.

Giving petitioner Chavez a full recognition of his right to access matters of public concern is a correct step in the appropriate direction. The ponencia should have cut and cut clean there as we must do now. Anything beyond that, as the ponencia has done previously, is ivory-tower and unaccountable interventionism at its worst.

PREMISES CONSIDERED, I vote to GRANT the Motions for Reconsideration and DISMISS the Petition for Mandamus with prayer for a writ of preliminary injunction and a temporary restraining order EXCEPT as to the right of petitioner Francisco I. Chavez to have access to all information relevant to the negotiation of government contracts including but not limited to evaluation reports, recommendations, legal and expert opinions, minutes of meetings, terms of reference and other documents attached to such reports or minutes, all relating to any proposed legitimate undertaking, which shall at all times be respected, without prejudice to any appropriate action the petitioner may hereafter take in the premises.

---

^[1] Decision, pp. 3, 44-45.

^[2] Rollo, p. 622.

^[3] Ibid.

^[4] G.R. No. 103882, 25 November 1998, 299 SCRA 199, 238.

^[5] DENR AO 20-98, re: "Revised Rules and Regulations on the Conduct of Appraisal of Public Lands and Other Patrimonial Properties of the Government."

^[6] Civil Code, Art. 420.

^[7] Id., Arts. 421 and 422.

^[8] II Tolentino, Civil Code of the Philippines 38 (1992).

^[9] Sec. 2 reads in part, "[a]ll lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant x x x," while Sec. 3 provides "[l]ands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead, or grant."

^[10] Tolentino, supra.

^[11] Montano v. Insular Government, 12 Phil. 572 (1909).

^[12] Manila Lodge No. 761 v. Court of Appeals, No. L-41001, 30 September 1976, 73 SCRA 162.

^[13] Decision, pp. 73-74.

^[14] Laurel v. Garcia, G.R. Nos. 92013 and 92047, 25 July 1990, 187 SCRA 797.

^[15] No. L-24440, 28 March 1968, 22 SCRA 1334, 1342.

^[16] See PD 1113 (1977) entitled "Granting the Construction and Development Corporation of the Philippines (CDCP) a Franchise to Operate, Construct and Maintain Toll Facilities in the North and South Luzon Toll Expressways and for Other Purposes."

^[17] See Salas v. Jarencio, No. L-29788, 30 august 1972, 46 SCRA 734.

^[19] PD 1085 is entitled "Conveying the Land Reclaimed in the Foreshore and Offshore of the Manila Bay (The Manila-Cavite Coastal Road Project) as Property of the Public Estates Authority as well as Rights and Interest with Assumption of Obligations in the Reclamation Contract Covering Areas of the Manila Bay between the Republic of the Philippines and the Construction and Development Corporation of the Philippines."

^[19] Manila Lodge No. 761 v. Court of Appeals, supra, citing 15-A Words and Phrases, p. 614, citing Mayor, etc. of Monroe vs. Quachita Parish, 17 So. 498, 499, 47 La. Ann. 1061.

^[20] See Note 12 at 181.

^[21] See Pindangan Agricultural Co., Inc. v. Dans, No. L-14591, 26 September 1962, 6 SCRA 14.

^[22] AO 348 is entitled "Directing the Public Estates Authority to Adopt Measures for the immediate implementation of the Boulevard 2000 Framework Plan to Alleviate the Problems of Traffic and Flooding in the Area during the Rainy Season."

^[23] Manila Lodge No. 761 v. Court of Appeals, supra; see Montano v. Insular Government,.

^[24] Ibid.

^[25] Manila Lodge No. 761 v. Court of Appeals, supra.

^[26] This provision reads:  "Whenever real property of the Government is authorized by law to be conveyed, the deed of conveyance shall be executed in behalf of the government by the following x x x x (underscoring supplied)"

^[27] See Note 14 at 812.

^[28] The Social Science I committee, University of the Philippines, Foundations of Behavioral Science:  A Book of Readings 11 (1987).

^[29] Id. at 24.

^[30] See e.g. RA 7942 (1995) entitled "An Act Instituting a New System of Mineral Resources Exploration, Development, Utilization, and Conservation" stating "[a] mineral agreement shall grant to the contractor the exclusive right to conduct mining operations and to extract all mineral resources found in the contract area."

^[31] DENR AO 40-96, is entitled:  "Revised Implementing Rules and Regulations of Republic Act No. 7942, otherwise known as the `Philippine Mining Act of 1995.'"

^[32] The Local Government Code of 1991.

^[33] This is the Build, Operate and Transfer Law.

^[34] See 8 February 1990 and 26 March 1990, 12^th Congress, Regular Session, S.B. No. 1285, pp. 9-12, 32-33.

^[35] Republic Act 4566 (1965) entitled "An Act Creating the Philippine Licensing board for contractors, Prescribing Its Powers, Duties and Functions, Providing Funds Therefor, and for Other Purposes."

^[36] Civil Code, Arts. 1347 and 1461.

^[37] EO 525 is entitled: "Designating the Public Estates Authority as the Agency Primarily Responsible for all Reclamation Projects."

^[38] EO 654 is entitled: "Further Defining Certain Functions and Powers of the Public Estates Authority."

^[39] CA 141 (1936), Sec. 59 which states: "The lands disposable under this title shall be classified as follows: (a) Lands reclaimed by the Government by dredging, filing, or other means x x x;" Act No. 2874 (1919), Sec. 56 which provides: "The lands disposable under this title shall be classified as follows: (a) Lands reclaimed by the Government by dredging, filing, or other means x x x x"

^[40] DENR Manual for Land Disposition, p. 3.

^[41] Id. at 6.

^[42] DoJ Opinion No. 026, s. 1994, promulgated by Sec. of Justice Franklin M. Drilon.

^[43] Act 3038, Sec. 2 reads: "The sale or lease of the land referred to in the preceding section shall, if such land is agricultural, be made in the manner and subject to the limitations prescribed in chapter five and six, respectively, of said Public Land Act, and if it be classified differently in conformity with the provisions of chapter nine of said Act: Provided, however, That the land necessary for the public service shall be exempt from the provision of this Act."

^[44] See also PD 461 (1974) entitled "Reorganizing the Department of Agriculture and Natural Resources into two Departments, Namely: Department of Agriculture and Department of Natural Resources, Amending for this Purpose Chapter I, Part VIII of the Integrated Reorganization Plan."

^[45] DENR Manual For Land Disposition at 5-6.

^[46] EO 525 (1979).

^[47] An Introduction to the Philosophy of Law 192 (1922).