EN BANC [G.R. No. 133250. July 9, 2002] FRANCISCO I. CHAVEZ, petitioner, vs.

PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY DEVELOPMENT CORPORATION, respondents. D E C I S I O N CARPIO, J.: This is an original Petition for Mandamus with prayer for a writ of preliminary injunction and a temporary restraining order. The petition seeks to compel the P ublic Estates Authority (PEA for brevity) to disclose all facts on PEAs then on-goi ng renegotiations with Amari Coastal Bay and Development Corporation (AMARI for br evity) to reclaim portions of Manila Bay. The petition further seeks to enjoin PEA from signing a new agreement with AMARI involving such reclamation. The Facts On November 20, 1973, the government, through the Commissioner of Public Highway s, signed a contract with the Construction and Development Corporation of the Ph ilippines (CDCP for brevity) to reclaim certain foreshore and offshore areas of Ma nila Bay. The contract also included the construction of Phases I and II of the Manila-Cavite Coastal Road. CDCP obligated itself to carry out all the works i n consideration of fifty percent of the total reclaimed land. On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decr ee No. 1084 creating PEA. PD No. 1084 tasked PEA to reclaim land, including fore shore and submerged areas, and to develop, improve, acquire, x x x lease and sell any and all kinds of lands.[1] On the same date, then President Marcos issued Pre sidential Decree No. 1085 transferring to PEA the lands reclaimed in the foreshor e and offshore of the Manila Bay[2] under the Manila-Cavite Coastal Road and Recl amation Project (MCCRRP). On December 29, 1981, then President Marcos issued a memorandum directing PEA to amend its contract with CDCP, so that [A]ll future works in MCCRRP x x x shall b e funded and owned by PEA. Accordingly, PEA and CDCP executed a Memorandum of Ag reement dated December 29, 1981, which stated: (i) CDCP shall undertake all reclamation, construction, and such other works in t he MCCRRP as may be agreed upon by the parties, to be paid according to progress of works on a unit price/lump sum basis for items of work to be agreed upon, su bject to price escalation, retention and other terms and conditions provided for in Presidential Decree No. 1594. All the financing required for such works sha ll be provided by PEA. x x x (iii) x x x CDCP shall give up all its development rights and hereby agrees to c ede and transfer in favor of PEA, all of the rights, title, interest and partici pation of CDCP in and to all the areas of land reclaimed by CDCP in the MCCRRP a s of December 30, 1981 which have not yet been sold, transferred or otherwise di sposed of by CDCP as of said date, which areas consist of approximately NinetyNine Thousand Four Hundred Seventy Three (99,473) square meters in the Financial Center Area covered by land pledge No. 5 and approximately Three Million Three Hundred Eighty Two Thousand Eight Hundred Eighty Eight (3,382,888) square meters of reclaimed areas at varying elevations above Mean Low Water Level located out side the Financial Center Area and the First Neighborhood Unit.[3] On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517, granting and transferring to PEA the parcels of land so reclaimed under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP) containing a total

area of one million nine hundred fifteen thousand eight hundred ninety four (1,9 15,894) square meters. Subsequently, on April 9, 1988, the Register of Deeds of t he Municipality of Paraaque issued Transfer Certificates of Title Nos. 7309, 7311 , and 7312, in the name of PEA, covering the three reclaimed islands known as th e Freedom Islands located at the southern portion of the Manila-Cavite Coastal Roa d, Paraaque City. The Freedom Islands have a total land area of One Million Five Hundred Seventy Eight Thousand Four Hundred and Forty One (1,578,441) square me ters or 157.841 hectares. On April 25, 1995, PEA entered into a Joint Venture Agreement (JVA for brevity) wi th AMARI, a private corporation, to develop the Freedom Islands. The JVA also r equired the reclamation of an additional 250 hectares of submerged areas surroun ding these islands to complete the configuration in the Master Development Plan of the Southern Reclamation Project-MCCRRP. PEA and AMARI entered into the JVA through negotiation without public bidding.[4] On April 28, 1995, the Board of D irectors of PEA, in its Resolution No. 1245, confirmed the JVA. [5] On June 8, 1 995, then President Fidel V. Ramos, through then Executive Secretary Ruben Torre s, approved the JVA.[6] On November 29, 1996, then Senate President Ernesto Maceda delivered a privilege speech in the Senate and denounced the JVA as the grandmother of all scams. As a result, the Senate Committee on Government Corporations and Public Enterprises, and the Committee on Accountability of Public Officers and Investigations, condu cted a joint investigation. The Senate Committees reported the results of their investigation in Senate Committee Report No. 560 dated September 16, 1997.[7] A mong the conclusions of their report are: (1) the reclaimed lands PEA seeks to t ransfer to AMARI under the JVA are lands of the public domain which the governme nt has not classified as alienable lands and therefore PEA cannot alienate these lands; (2) the certificates of title covering the Freedom Islands are thus void , and (3) the JVA itself is illegal. On December 5, 1997, then President Fidel V. Ramos issued Presidential Administr ative Order No. 365 creating a Legal Task Force to conduct a study on the legali ty of the JVA in view of Senate Committee Report No. 560. The members of the L egal Task Force were the Secretary of Justice,[8] the Chief Presidential Legal C ounsel,[9] and the Government Corporate Counsel.[10] The Legal Task Force upheld the legality of the JVA, contrary to the conclusions reached by the Senate Comm ittees.[11] On April 4 and 5, 1998, the Philippine Daily Inquirer s that there were on-going renegotiations between PEA ssued by then President Fidel V. Ramos. According to r Nestor Kalaw, PEA Chairman Arsenio Yulo and retired omposed the negotiating panel of PEA. and Today published report and AMARI under an order i these reports, PEA Directo Navy Officer Sergio Cruz c

On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for Proh ibition with Application for the Issuance of a Temporary Restraining Order and P reliminary Injunction docketed as G.R. No. 132994 seeking to nullify the JVA. T he Court dismissed the petition for unwarranted disregard of judicial hierarchy, without prejudice to the refiling of the case before the proper court.[12] On April 27, 1998, petitioner Frank I. Chavez (Petitioner for brevity) as a taxpay er, filed the instant Petition for Mandamus with Prayer for the Issuance of a Wr it of Preliminary Injunction and Temporary Restraining Order. Petitioner conten ds the government stands to lose billions of pesos in the sale by PEA of the rec laimed lands to AMARI. Petitioner prays that PEA publicly disclose the terms of any renegotiation of the JVA, invoking Section 28, Article II, and Section 7, A rticle III, of the 1987 Constitution on the right of the people to information o n matters of public concern. Petitioner assails the sale to AMARI of lands of t he public domain as a blatant violation of Section 3, Article XII of the 1987 Co

nstitution prohibiting the sale of alienable lands of the public domain to priva te corporations. Finally, petitioner asserts that he seeks to enjoin the loss of billions of pesos in properties of the State that are of public dominion. After several motions for extension of time,[13] PEA and AMARI filed their Comme nts on October 19, 1998 and June 25, 1998, respectively. Meanwhile, on December 28, 1998, petitioner filed an Omnibus Motion: (a) to require PEA to submit the terms of the renegotiated PEA-AMARI contract; (b) for issuance of a temporary r estraining order; and (c) to set the case for hearing on oral argument. Petit ioner filed a Reiterative Motion for Issuance of a TRO dated May 26, 1999, which the Court denied in a Resolution dated June 22, 1999. In a Resolution dated March 23, 1999, the Court gave due course to the petition and required the parties to file their respective memoranda. On March 30, 1999, PEA and AMARI signed the Amended Joint Venture Agreement (Amen ded JVA, for brevity). On May 28, 1999, the Office of the President under the ad ministration of then President Joseph E. Estrada approved the Amended JVA. Due to the approval of the Amended JVA by the Office of the President, petitione r now prays that on constitutional and statutory grounds the renegotiated contrac t be declared null and void.[14] The Issues The issues raised by petitioner, PEA[15] and AMARI[16] are as follows: I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE PETITION ARE MOOT AND ACAD EMIC BECAUSE OF SUBSEQUENT EVENTS; II. WHETHER THE PETITION MERITS DISMISSAL FOR FAILING TO OBSERVE THE PRINCIPLE GOVERNING THE HIERARCHY OF COURTS; III. WHETHER THE PETITION MERITS DISMISSAL FOR NON-EXHAUSTION OF ADMINISTRATIVE REMEDIES; IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS SUIT; V. WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION INCLUDES OFFICIAL INFORMATIO N ON ON-GOING NEGOTIATIONS BEFORE A FINAL AGREEMENT; VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT VENTURE AGREEMENT FOR THE TRAN SFER TO AMARI OF CERTAIN LANDS, RECLAIMED AND STILL TO BE RECLAIMED, VIOLATE THE 1987 CONSTITUTION; AND VII. WHETHER THE COURT IS THE PROPER FORUM FOR RAISING THE ISSUE OF WHETHER THE AMENDED JOINT VENTURE AGREEMENT IS GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT. The Courts Ruling First issue: whether the principal reliefs prayed for in the petition are moot and academic because of subsequent events. The petition prays that PEA publicly disclose the terms and conditions of the ongoing negotiations for a new agreement. The petition also prays that the Court e njoin PEA from privately entering into, perfecting and/or executing any new agree ment with AMARI. PEA and AMARI claim the petition is now moot and academic because AMARI furnishe d petitioner on June 21, 1999 a copy of the signed Amended JVA containing the te

rms and conditions agreed upon in the renegotiations. Thus, PEA has satisfied p etitioners prayer for a public disclosure of the renegotiations. Likewise, petit ioners prayer to enjoin the signing of the Amended JVA is now moot because PEA an d AMARI have already signed the Amended JVA on March 30, 1999. Moreover, the Of fice of the President has approved the Amended JVA on May 28, 1999. Petitioner counters that PEA and AMARI cannot avoid the constitutional issue by simply fast-tracking the signing and approval of the Amended JVA before the Cour t could act on the issue. Presidential approval does not resolve the constituti onal issue or remove it from the ambit of judicial review. We rule that the signing of the Amended JVA by PEA and AMARI and its approval by the President cannot operate to moot the petition and divest the Court of its j urisdiction. PEA and AMARI have still to implement the Amended JVA. The prayer to enjoin the signing of the Amended JVA on constitutional grounds necessarily includes preventing its implementation if in the meantime PEA and AMARI have sig ned one in violation of the Constitution. Petitioners principal basis in assaili ng the renegotiation of the JVA is its violation of Section 3, Article XII of th e Constitution, which prohibits the government from alienating lands of the publ ic domain to private corporations. If the Amended JVA indeed violates the Const itution, it is the duty of the Court to enjoin its implementation, and if alread y implemented, to annul the effects of such unconstitutional contract. The Amended JVA is not an ordinary commercial contract but one which seeks to tr ansfer title and ownership to 367.5 hectares of reclaimed lands and submerged ar eas of Manila Bay to a single private corporation. It now becomes more compelli ng for the Court to resolve the issue to insure the government itself does not v iolate a provision of the Constitution intended to safeguard the national patrim ony. Supervening events, whether intended or accidental, cannot prevent the Co urt from rendering a decision if there is a grave violation of the Constitution. In the instant case, if the Amended JVA runs counter to the Constitution, the C ourt can still prevent the transfer of title and ownership of alienable lands of the public domain in the name of AMARI. Even in cases where supervening event s had made the cases moot, the Court did not hesitate to resolve the legal or co nstitutional issues raised to formulate controlling principles to guide the benc h, bar, and the public.[17] Also, the instant petition is a case of first impression. All previous decision s of the Court involving Section 3, Article XII of the 1987 Constitution, or its counterpart provision in the 1973 Constitution,[18] covered agricultural lands sold to private corporations which acquired the lands from private parties. The transferors of the private corporations claimed or could claim the right to jud icial confirmation of their imperfect titles[19] under Title II of Commonwealth Act. 141 (CA No. 141 for brevity). In the instant case, AMARI seeks to acquire fr om PEA, a public corporation, reclaimed lands and submerged areas for non-agricu ltural purposes by purchase under PD No. 1084 (charter of PEA) and Title III of CA No. 141. Certain undertakings by AMARI under the Amended JVA constitute the consideration for the purchase. Neither AMARI nor PEA can claim judicial confi rmation of their titles because the lands covered by the Amended JVA are newly r eclaimed or still to be reclaimed. Judicial confirmation of imperfect title req uires open, continuous, exclusive and notorious occupation of agricultural lands of the public domain for at least thirty years since June 12, 1945 or earlier. Besides, the deadline for filing applications for judicial confirmation of impe rfect title expired on December 31, 1987.[20] Lastly, there is a need to resolve immediately the constitutional issue raised i n this petition because of the possible transfer at any time by PEA to AMARI of title and ownership to portions of the reclaimed lands. Under the Amended JVA, PEA is obligated to transfer to AMARI the latters seventy percent proportionate s hare in the reclaimed areas as the reclamation progresses. The Amended JVA even

allows AMARI to mortgage at any time the entire reclaimed area to raise financi ng for the reclamation project.[21] Second issue: whether the petition merits dismissal for failing to observe the p rinciple governing the hierarchy of courts. PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the Court. The principle of hierarchy of courts applies generally to cases involving factual questions. As it is not a trier of facts, the Court cannot entertain cases involving factual issues. The instant case, however, rai ses constitutional issues of transcendental importance to the public.[22] The Co urt can resolve this case without determining any factual issue related to the c ase. Also, the instant case is a petition for mandamus which falls under the or iginal jurisdiction of the Court under Section 5, Article VIII of the Constituti on. We resolve to exercise primary jurisdiction over the instant case. Third issue: whether the petition merits dismissal for non-exhaustion of adminis trative remedies. PEA faults petitioner for seeking judicial intervention in compelling PEA to dis close publicly certain information without first asking PEA the needed informati on. PEA claims petitioners direct resort to the Court violates the principle of exhaustion of administrative remedies. It also violates the rule that mandamus m ay issue only if there is no other plain, speedy and adequate remedy in the ordi nary course of law. PEA distinguishes the instant case from Taada v. Tuvera[23] where the Court grant ed the petition for mandamus even if the petitioners there did not initially dem and from the Office of the President the publication of the presidential decrees . PEA points out that in Taada, the Executive Department had an affirmative stat utory duty under Article 2 of the Civil Code[24] and Section 1 of Commonwealth A ct No. 638[25] to publish the presidential decrees. There was, therefore, no nee d for the petitioners in Taada to make an initial demand from the Office of the P resident. In the instant case, PEA claims it has no affirmative statutory duty to disclose publicly information about its renegotiation of the JVA. Thus, PEA asserts that the Court must apply the principle of exhaustion of administrative remedies to the instant case in view of the failure of petitioner here to deman d initially from PEA the needed information. The original JVA sought to dispose to AMARI public lands held by PEA, a governme nt corporation. Under Section 79 of the Government Auditing Code,[26]2 the disp osition of government lands to private parties requires public bidding. PEA was under a positive legal duty to disclose to the public the terms and conditions for the sale of its lands. The law obligated PEA to make this public disclosure even without demand from petitioner or from anyone. PEA failed to make this pu blic disclosure because the original JVA, like the Amended JVA, was the result o f a negotiated contract, not of a public bidding. Considering that PEA had an a ffirmative statutory duty to make the public disclosure, and was even in breach of this legal duty, petitioner had the right to seek direct judicial interventio n. Moreover, and this alone is determinative of this issue, the principle of exhaus tion of administrative remedies does not apply when the issue involved is a pure ly legal or constitutional question.[27] The principal issue in the instant case is the capacity of AMARI to acquire lands held by PEA in view of the constituti onal ban prohibiting the alienation of lands of the public domain to private cor porations. We rule that the principle of exhaustion of administrative remedies does not apply in the instant case. Fourth issue: whether petitioner has locus standi to bring this suit

PEA argues that petitioner has no standing to institute mandamus proceedings to enforce his constitutional right to information without a showing that PEA refus ed to perform an affirmative duty imposed on PEA by the Constitution. PEA also claims that petitioner has not shown that he will suffer any concrete injury bec ause of the signing or implementation of the Amended JVA. Thus, there is no act ual controversy requiring the exercise of the power of judicial review. The petitioner has standing to bring this taxpayers suit because the petition see ks to compel PEA to comply with its constitutional duties. There are two consti tutional issues involved here. First is the right of citizens to information on matters of public concern. Second is the application of a constitutional provi sion intended to insure the equitable distribution of alienable lands of the pub lic domain among Filipino citizens. The thrust of the first issue is to compel PEA to disclose publicly information on the sale of government lands worth billi ons of pesos, information which the Constitution and statutory law mandate PEA t o disclose. The thrust of the second issue is to prevent PEA from alienating hu ndreds of hectares of alienable lands of the public domain in violation of the C onstitution, compelling PEA to comply with a constitutional duty to the nation. Moreover, the petition raises matters of transcendental importance to the public . In Chavez v. PCGG,[28] the Court upheld the right of a citizen to bring a tax payers suit on matters of transcendental importance to the public, thus Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the Marcoses is an issue of transcendental importance to the public. He asserts that ordinary taxpayers have a right to initiate and prosecute actions questioni ng the validity of acts or orders of government agencies or instrumentalities, i f the issues raised are of paramount public interest, and if they immediately affec t the social, economic and moral well being of the people. Moreover, the mere fact that he is a citizen satisfies the requirement of person al interest, when the proceeding involves the assertion of a public right, such as in this case. He invokes several decisions of this Court which have set asid e the procedural matter of locus standi, when the subject of the case involved p ublic interest. x x x In Taada v. Tuvera, the Court asserted that when the issue concerns a public righ t and the object of mandamus is to obtain the enforcement of a public duty, the people are regarded as the real parties in interest; and because it is sufficien t that petitioner is a citizen and as such is interested in the execution of the laws, he need not show that he has any legal or special interest in the result of the action. In the aforesaid case, the petitioners sought to enforce their ri ght to be informed on matters of public concern, a right then recognized in Sect ion 6, Article IV of the 1973 Constitution, in connection with the rule that law s in order to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated. In ruling for the petitioners legal stan ding, the Court declared that the right they sought to be enforced is a public ri ght recognized by no less than the fundamental law of the land. Legaspi v. Civil Service Commission, while reiterating Taada, further declared th at when a mandamus proceeding involves the assertion of a public right, the requi rement of personal interest is satisfied by the mere fact that petitioner is a c itizen and, therefore, part of the general public which possesses the right. Further, in Albano v. Reyes, we said that while expenditure of public funds may not have been involved under the questioned contract for the development, manage ment and operation of the Manila International Container Terminal, public interes

t [was] definitely involved considering the important role [of the subject contr act] . . . in the economic development of the country and the magnitude of the f inancial consideration involved. We concluded that, as a consequence, the disclos ure provision in the Constitution would constitute sufficient authority for upho lding the petitioner s standing. Similarly, the instant petition is anchored on the right of the people to inform ation and access to official records, documents and papers a right guaranteed un der Section 7, Article III of the 1987 Constitution. Petitioner, a former solici tor general, is a Filipino citizen. Because of the satisfaction of the two basic requisites laid down by decisional law to sustain petitioner s legal standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, w e rule that the petition at bar should be allowed. We rule that since the instant petition, brought by a citizen, involves the enfo rcement of constitutional rights - to information and to the equitable diffusi on of natural resources - matters of transcendental public importance, the pe titioner has the requisite locus standi. Fifth issue: whether the constitutional right to information includes official i nformation on on-going negotiations before a final agreement. Section 7, Article III of the Constitution explains the peoples right to informat ion on matters of public concern in this manner: Sec. 7. The right of the people to information on matters of public concern shal l be recognized. Access to official records, and to documents, and papers perta ining to official acts, transactions, or decisions, as well as to government res earch data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. (Emphasis supplied) The State policy of full transparency in all transactions involving public inter est reinforces the peoples right to information on matters of public concern. T his State policy is expressed in Section 28, Article II of the Constitution, thu s: Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts an d implements a policy of full public disclosure of all its transactions involvin g public interest. (Emphasis supplied) These twin provisions of the Constitution seek to promote transparency in policy -making and in the operations of the government, as well as provide the people s ufficient information to exercise effectively other constitutional rights. Thes e twin provisions are essential to the exercise of freedom of expression. If t he government does not disclose its official acts, transactions and decisions to citizens, whatever citizens say, even if expressed without any restraint, will be speculative and amount to nothing. These twin provisions are also essential to hold public officials at all times x x x accountable to the people,[29] for un less citizens have the proper information, they cannot hold public officials acc ountable for anything. Armed with the right information, citizens can particip ate in public discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is essential to the exist ence and proper functioning of any democracy. As explained by the Court in Val monte v. Belmonte, Jr.[30] An essential element of these freedoms is to keep open a continuing dialogue or p rocess of communication between the government and the people. It is in the int erest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the peoples wil l. Yet, this open dialogue can be effective only to the extent that the citize

nry is informed and thus able to formulate its will intelligently. Only when th e participants in the discussion are aware of the issues and have access to info rmation relating thereto can such bear fruit. PEA asserts, citing Chavez v. PCGG,[31] that in cases of on-going negotiations t he right to information is limited to definite propositions of the government. PE A maintains the right does not include access to intra-agency or inter-agency rec ommendations or communications during the stage when common assertions are still in the process of being formulated or are in the exploratory stage. Also, AMARI contends that petitioner cannot invoke the right at the pre-decision al stage or before the closing of the transaction. To support its contention, A MARI cites the following discussion in the 1986 Constitutional Commission: Mr. Suarez. And when we say transactions which should be distinguished from contra cts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract it self? Mr. Ople: The transactions used here, I suppose is generic and therefore, it can c over both steps leading to a contract and already a consummated contract, Mr. Pr esiding Officer. Mr. Suarez: This contemplates inclusion of negotiations leading to the consumma tion of the transaction. Mr. Ople: Yes, subject only to reasonable safeguards on the national interest. Mr. Suarez: Thank you.[32] (Emphasis supplied) AMARI argues there must first be a consummated contract before petitioner can in voke the right. Requiring government officials to reveal their deliberations a t the pre-decisional stage will degrade the quality of decision-making in govern ment agencies. Government officials will hesitate to express their real sentime nts during deliberations if there is immediate public dissemination of their dis cussions, putting them under all kinds of pressure before they decide. We must first distinguish between information the law on public bidding requires PEA to disclose publicly, and information the constitutional right to informati on requires PEA to release to the public. Before the consummation of the contr act, PEA must, on its own and without demand from anyone, disclose to the public matters relating to the disposition of its property. These include the size, l ocation, technical description and nature of the property being disposed of, the terms and conditions of the disposition, the parties qualified to bid, the mini mum price and similar information. PEA must prepare all these data and disclos e them to the public at the start of the disposition process, long before the co nsummation of the contract, because the Government Auditing Code requires public bidding. If PEA fails to make this disclosure, any citizen can demand from PEA this information at any time during the bidding process. Information, however, on on-going evaluation or review of bids or proposals bein g undertaken by the bidding or review committee is not immediately accessible un der the right to information. While the evaluation or review is still on-going, there are no official acts, transactions, or decisions on the bids or proposals. However, once the committee makes its official recommendation, there arises a de finite proposition on the part of the government. From this moment, the publics r ight to information attaches, and any citizen can access all the non-proprietary information leading to such definite proposition. In Chavez v. PCGG,[33] the C ourt ruled as follows: