258 Phil. 167
In this petition for certiorari and prohibition with a prayer for preliminary injunction, the petitioner, as congressman for the second district of Bataan, assails the approval by the Board of Investments (BOI) and the Department of Trade and Industry (DTI) of the amended application for registration of the Bataan Petrochemical Corporation, which seeks to transfer the site of its petrochemical complex from Bataan, the original situs of choice, to the province of Batangas.
Since the case presents purely legal issues, and the subject of the controversy vitally affects the economic interests of the country which should not pend for too long, the Court, after hearing the parties extensive oral and written arguments on the petitioner's application for preliminary injunction, believes that it may now decide the merits of the petition as well.
Proclamation No. 361 dated March 6, 1968, as amended by Proclamation No. 630 dated November 29, 1969, reserved a 388-hectare parcel of land of the public domain located at Lamao, Limay, Bataan for "industrial estate purposes," in line with the State policy of promoting and rationalizing the industrialization of the Philippines. P.D. No. 1803, dated January 16, 1981, enlarged the area by 188 hectares, making it a total of 576 hectares, reserved for the Petrochemical Industrial Zone under the administration, management and ownership of the Philippine National Oil Company (PNOC).
The Bataan Refining Corporation (BRC for short) is a wholly government-owned corporation, located in
Taiwanese investors in a petrochemical project formed the Bataan Petrochemical Corporation (BPC) and applied with BOI for registration as a new domestic producer of petrochemicals. Its application specified
BPC was accorded pioneer status and was given fiscal and other incentives by BOI, like, (1) exemptions from tax on raw materials, (2) repatriation of the entire proceeds of liquidation of investments in currency originally made and at the exchange rate obtaining at the time of repatriation; and (3) remittance of earnings on investments. As additional incentive, the House of Representatives approved a bill, introduced by the petitioner, Congressman Garcia, eliminating the 48% ad valorem tax on naphtha if and when it would be used as raw material in the petrochemical plant. The chairman of BPC, Tomas T. N. Hsi, profusely welcomed the bill, stating:
"This project is aiming at a boon not only to theHowever, in February 1989, A. T. Chong, chairman of USI Far East Corporation, the major investor in BPC, personally delivered to Trade Secretary Jose Concepcion a letter dated
The congressmen of
However, despite speeches in the Senate and in the House opposing the transfer of the project to Batangas, BPC filed in the BOI on April 11, 1989 a request for "approval of an amendment of its investment application x x x for establishing a petrochemical complex in the Philippines." (Annex F, p. 51, Rollo.) The amendments consisted of: (1) increasing the investment amount from US$220 million to US$320; (2) increasing the production capacity of its naphtha cracker, polyethylene plant and polypropylene plant; (3) changing the feedstock from naphtha only to "naphtha and/or liquefied petroleum gas;" (4) transferring the job site from Limay, Bataan to Batangas (Annex F, p. 51, Rollo).
Senator Ernesto Maceda, Antonio Francisco, vice-president and general manager of the Bataan Refining Corporation, Congressman Felicito C. Payumo of the 1st District of Bataan, herein petitioner Congressman Enrique Garcia of the Second District, the provincial Governor of Bataan, the League of Mayors and various civic and professional organizations all opposed the transfer of the project to Batangas (pp. 10, 11, 12, Rollo; Annex Q, p. 81, Rollo).
On May 4, 1989, petitioner addressed a letter to Secretary Concepcion of the Department of Trade and Industry (DTI), through BOI vice-chairman and manager Tomas Alcantara, requesting for "a copy of the amendment reportedly submitted by Taiwanese investors, to their original application for the installation of the Bataan Petrochemical Plant, as well as the original application itself together with any and all attachments to said original application and the amendment thereto." (Annex K, p. 70, Rollo.)
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(a) in not observing due process in approving without a hearing, the revisions in the registration of the BPC's petrochemical project;
(b) in refusing to furnish the petitioner with copies of BPC's application for registration and its supporting papers in violation of the Government's policy of transparency;
(c) in approving the change in the site of BPC's petrochemical plant from
(d) in approving the change in feedstock from naphtha only, to naphtha and/or lpg; and
(e) in showing gross partiality for BPC.
This Court is not concerned with the economic, social, and political aspects of this case for it does not possess the necessary technology and scientific expertise to determine whether the transfer of the proposed BPC petrochemical complex from
The Omnibus Investments Code of 1987 (Executive Order No. 226) of July 16, 1987 expressly declares it to be the policy of the State "to accelerate the sound development of the national economy x x x by encouraging private Filipino and foreign investments in industry, agriculture, forestry, mining, tourism and other sectors of the economy." For this purpose, the Code mandates the holding of "consultations with affected communities whenever necessary" (Art. 2, subpar. 2 of the Omnibus Investments Code). Correspondingly, Art. 33 provides that: "Whenever necessary, the Board, through the People's Economic Councils, shall consult the communities affected on the acceptability of locating the registered enterprise within their community."
The Code also requires the "publication of applications for registration," hence, the payment of publication and other necessary fees x x x prior to the processing and approval of such applications" (Art. 7, subpar. 3, Omnibus Investments Code).
As provided by the law, the BPC's application for registration as a "new export producer of ethylene, polyethylene and polypropylene" was published in the "Philippines Daily Inquirer" issue of
Since the BPC's amended application (particularly the change of location from
There is no merit in the public respondents' contention that the petitioner has "no legal interest" in the matter of the transfer of the BPC petrochemical plant from the
Hence, they have a right to be heard or "be consulted" on the proposal to transfer it to another site for the Investments Code does require that the "affected communities" should be consulted. While this Court may not require BOI to decide that controversy in a particular way, we may require the Board to comply with the law and its own rules and regulations prescribing such notice and hearing.
This Court in the cases of Tanada vs. Tuvera, 136 SCRA 27 and Legaspi vs. Civil Service Commission, 150 SCRA 530, has recognized a citizen's interest and personality to procure the enforcement of a public duty and to bring an action to compel the performance of that duty. In this case, what the petitioner seeks is for the Board of Investments to hold a hearing where he may present evidence in support of his opposition to the BPC's amended application for registration (which amounts to a new application) since one of the effects of the amendment is to change the site of its petrochemical plant from Bataan to Batangas.
The petitioner's request for xerox copies of certain documents filed by BPC together with its original application, and its amended application for registration with BOI, may not be denied, as it is the constitutional right of a citizen to have access to information on matters of public concern under Article III, Section 7 of the 1987 Constitution. The confidentiality of the records on BPC's applications is not absolute for Article 81 of the Omnibus Investments Code provides that they may be disclosed upon the consent of the applicant, or on orders of a court of competent jurisdiction. As a matter of fact, a xerox copy of BPC's position paper dated
However, just as the confidentiality of an applicant's records in the BOI is not absolute, neither is the petitioner's right of access to them unlimited. The Constitution does not open every door to any and all information. "Under the Constitution, access to official records, papers, etc. is subject to limitations as may be provided by law (Art. III, Sec. 7, second sentence). The law may exempt certain types of information from public scrutiny" (Legaspi vs. Civil Service Commission, 150 SCRA 530). The trade secrets and confidential, commercial and financial information of the applicant BPC, and matters affecting national security are excluded from the privilege.
At the oral argument on the petitioner's application for a preliminary injunction on
WHEREFORE, the petition for certiorari is granted. The Board of Investments is ordered: (1) to publish the amended application for registration of the Bataan Petrochemical Corporation, (2) to allow the petitioner to have access to its records on the original and amended applications for registration, as a petrochemical manufacturer, of the respondent Bataan Petrochemical Corporation, excluding, however, privileged papers containing its trade secrets and other business and financial information, and (3) to set for hearing the petitioner's opposition to the amended application in order that he may present at such hearing all the evidence in his possession in support of his opposition to the transfer of the site of the BPC petrochemical plant to Batangas province. The hearing shall not exceed a period of ten (10) days from the date fixed by the BOl, notice of which should be served by personal service to the petitioner through counsel, at least three (3) days in advance. The hearings may be held from day to day for a period of ten (10) days without postponements. The petition for a writ of prohibition or preliminary injunction is denied. No costs.
SO ORDERED.
Narvasa, Gutierrez, Jr., Cruz, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Medialdea, and Regalado, JJ., concur.DISSENTING OPINION
MELENCIO-HERRERA, J.:
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In February 1989, BPC sought to amend its application by proposing the change of plant site from
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In his Petition, petitioner alleges that the BOI committed grave abuse of discretion and denied him due process when it approved, without a hearing, the amendments to the registration of the BPC petrochemical project; when it denied petitioner's request for a copy of the amendments; and when it approved the change of the plant site and feedstock of the plant.
As stated in the majority opinion, the Court is not concerned with the economic, social and political aspects of the case.
In ruling in favor of petitioner, the majority faults the BOI with grave abuse of discretion and has ordered it (1) to publish the amended application for registration; (2) to allow petitioner to have access to its records on the original and amended applications for registration, excluding trade secrets; and (3) to set for hearing petitioner's opposition to the amended application.
With all due respect, I find no grave abuse of discretion on the part of BOI, nor denial by it to petitioner of due process.
As regards publication, Article 54 of the Omnibus Investments Code provides:
"Art. 54. Publication and Posting of Notices. - Immediately after the application has been given due course by the Board, the Secretary of the Board or any official designated by the Board shall require the applicant to publish the notice of the action of the Board thereon at his expense once in a newspaper of general circulation in the province or city where the applicant has its principal office, and post copies of said notice in conspicuous places, in the office of the Board or in the building where said office is located; setting forth in such copies the name of the applicant, the business in which it is engaged or proposes to engage or invest, and such other data and information as may be required by the Board. No approval or certificate shall be valid without the publication and posting of notices as herein provided." (Emphasis supplied)Clearly, it is not the application itself that is required to be published but notice of the action of the Board plus the specified data. Thus, the Notice Publication, which appeared in the Inquirer, simply read:
Absent the requirement of publication of the application itself, there should be no need either to publish the amendments to the application. The statement in the majority opinion that the amended application is considered a new application does not find support in the Omnibus Investments Code. After all, the amendment did not change the essence or nature of the petrochemical project but only the site and the feedstock.
Specially significant, too, is the fact that the confidentiality of applications is specifically provided for in the Omnibus Investments Code. Thus:
Considering that all applications and their supporting documents are confidential and are not to be disclosed to any person, it follows that amendments thereto should also be considered confidential and need no publication.
Which brings us to the second part of the majority disposition requiring BOI to allow petitioner to have access to its records.
If BOI did not furnish petitioner with copy of the original application and amendments thereto, it was because it had received a reply from the project proponents advising us not to release the subject documents in view of the sensitive information contained therein which includes the accumulation of the proponents' business experience and know-how (Annex "O," Petition). No grave abuse of discretion can be attributed to the BOI, therefore, for not acceding to petitioner's request that he be furnished with copies of the original application with its amendments and attachments (Annex "K," Petition).
Of course, pursuant to Article 81 of the Omnibus Investments Code, the Court, as it does not now, can order the BOI to allow petitioner to have access to its records on the original and amended applications for registration.
There seems to be no longer any necessity therefor, however. Attached to public respondent's Opposition is BPC's Position Paper, dated
The majority ruling also requires the BOI to set for hearing petitioner's opposition to the amended application so that he may present at such hearing all the evidence in his possession in support of his opposition to the transfer of the site of the project to Batangas.
The Omnibus Investments Code, however, does not require the BOI to hold hearings before approving applications for registration or amendments thereto. In fact, hearings would contravene Codal provisions on confidentiality. Article 7, paragraph 4, cited in the majority opinion neither supports the necessity of hearings. It reads:
"Art. 7. Powers and Duties of the Board. x x x "(4) After due hearing, decide controversies concerning the implementation of this Code that may arise between registered enterprises or investors therein and government agencies, within thirty (30) days after the controversy has been submitted for decision: x x xIn other words, due hearing is required only in connection with controversies between registered enterprises or investors therein and government agencies concerning the implementation of the Omnibus Investments Code. It does not speak at all of a hearing on applications for registration or amendments thereto.
Additionally, Article 34 of the Omnibus Investments Code, in providing that applications not acted upon by the Board within twenty (20) days from official acceptance thereof shall be considered automatically approved implies that a hearing is not at all indispensable in the matter of registration of enterprises. The intention of the law to make BOI proceedings non-adversarial and as expeditious as possible consistent with the Codal policy to encourage investments, is clearly discernible.
Besides, a hearing, as ordained, will serve no practical purpose for petitioner has already fully presented his case, the BOI has given it due consideration and has acted accordingly. This is concretely shown by the following exchange of communications:
(1) In his letter to the Secretary of Trade and Industry, who is concurrently Chairman of the Board of Investments, petitioner "reiterate(d)" his "most vehement protest against the maneuver to transfer the Bataan Petrochemical project from Bataan to Batangas which, if successful, would greatly prejudice not only the people of Bataan, but more importantly, our country and government" (Annex E, Petition);
(2) Petitioner's letter, dated 2 May 1989, to the Secretary of Trade and Industry protested the latter's "official position that The final choice (of site) is still with the proponent (the Taiwanese), who would, in the final analysis, provide the funding or risk capital for the project'" (Annex "J," ibid.);
(3) Attached to said communication was petitioner's letter, dated 24 April 1989, addressed to the Senate Committee on Ways and Means giving fourteen (14) reasons why the project should not be transferred to Batangas (Annex "I," ibid.);
(4) The reply-letter of the BOI to petitioner, dated 11 May 1989, took exception to petitioner's claim that the BOI and the DTI, by not vigorously opposing the transfer, had violated the Constitution, the Omnibus Investments Code and P.D. 949 as amended by PD 1803, and urged petitioner not to proceed with his planned court action as it would only serve to "discourage foreign investors and derail efforts at economic recovery" (Annex "M," ibid.);
(5) Petitioner's letter to the BOI of 16 May 1989 rebutted point by point the arguments in the BOI letter of 11 May 1989 and argued that "PD No. 949, as amended by P.D. No. 1803, as well as related issuances, have chosen Bataan as the site of the petrochemical project" (Annex "N," ibid.);
(6) Petitioner's letter to the BOI of 29 May 1989 formalized his "motion for reconsideration of the BOI "decision" approving the transfer of the project from Bataan to Batangas, and contended that President Aquino had set it aside (Annex "P," ibid.);
(7) Petitioner's follow-up letter to the BOI, dated 19 June 1989, claimed that the BOI decision to approve the transfer of the project had, in effect, been reversed by the President herself and that the BOI should "refrain from taking any step to execute said defunct decision" (Annex "Q," ibid.);
(8) In the BOI letter of 21 June 1989 to petitioner, the former denied that there had been a reversal by the President of the BOI decision; and that, as far as petitioner's motion for reconsideration of the BOI decision is concerned, since you are not submitting any new cause of action for BOI to reconsider its decision, we believe that we have sufficiently answered the questions you have raised in your letter dated 2 May 1989, which has been replied to by the Managing Head of the BOI on 11 May 1989" (Annex "R," ibid.).
All told, there can be no question that petitioner has been fully heard on his original petition to the BOI to disapprove the transfer of the project site and on his motion for reconsideration. No further purpose will be served by setting petitioner's opposition for hearing.
Neither do I think that affected communities have a right to be consulted, as opined by the majority. The provision pertinent thereto reads:
"Art. 33. Application. - Applications shall be filed with the Board, recorded in a registration book and the date appearing therein and stamped on the application shall be considered the date of official acceptance. "Whenever necessary, the Board, through the People's Economic Councils, shall consult the communities affected on the acceptability of locating the registered enterprise within their community."In other words, the requirement on consultation is qualified by the phrase whenever necessary. The clear implication is that the BOI may dispense with such consultations if it believes that it can decide applications for registration by itself without consultation.
In fine, it is my view that the BOI did not commit any grave abuse of discretion in approving the amendments to BPC's application. Nor had it failed to observe due process in approving the same without a formal hearing, petitioner having, in fact, been fully heard. The matter of determining whether the transfer of the plant site and change of feedstock will be best for the project and the country lies with the BOI as the administrative body specifically tasked with such matters. It is well-settled that absent a clear, manifest and grave abuse of discretion amounting to want of jurisdiction, the decision and findings of an administrative agency on matters falling within its competence will not be disturbed by the Courts (Sagun vs. People's Homesite and Housing Corp. G.R. No. 44738, June 22, 1988, 162 SCRA 411) as the same falls within that agency's special knowledge and expertise gained by it from handling the specific matters falling under its jurisdiction (Mapa vs. Arroyo et al., G.R. No. 78565, July 5, 1989).
I vote, therefore, for the dismissal of the petition for lack of merit, which dismissal should be immediately executory. The holding of hearings will serve no purpose other than unnecessarily delay the implementation of the Philippines biggest foreign project, representing a major step towards industrialization. Further delay can only produce a chilling effect on foreign investments in the country.