SECOND DIVISION

[G.R. No. 158540. July 8, 2004]

SOUTHERN CROSS CEMENT CORPORATION, petitioner, vs. THE
PHILIPPINE CEMENT MANUACTURERS CORP., THE
SECRETAR! O THE "EPARTMENT O TRA"E # IN"USTR!,
THE SECRETAR! O THE "EPARTMENT O INANCE, $%& THE
COMMISSIONER O THE 'UREAU O CUSTOMS, respondents.
" E C I S I O N
TINGA, J.(
Good fences make good neighbors, so observed Robert rost, the archet!"e of
traditiona# Ne$ Eng#and detachment% &he Frost ethos has been heeded b! nations
ad'(sting to the effects of the #ibera#i)ed g#oba# market%
*+,
&he -hi#i""ines, for one,
enacted Re"(b#ic .ct /Re"% .ct0 No% 123+ /on the im"osition of co(ntervai#ing d(ties0,
Re"% .ct No% 1234 /on the im"osition of anti5d(m"ing d(ties0 and, fina##!, Re"% .ct No%
1166, a#so kno$n as the Safeg(ard 7eas(res .ct /S7.0
*4,
soon after it 'oined the
Genera# .greement on &ariff and &rade /G.&&0 and the 8or#d &rade Organi)ation
/8&O0 .greement%
*9,
&he S7. "rovides the str(ct(re and mechanics for the im"osition of emergenc!
meas(res, inc#(ding tariffs, to "rotect domestic ind(stries and "rod(cers from increased
im"orts $hich inf#ict or co(#d inf#ict serio(s in'(r! on them%
*:,
&he $isdom of the "o#icies
behind the S7., ho$ever, is not "(t into ;(estion b! the "etition at bar% &he ;(estions
s(bmitted to the Co(rt re#ate to the means and the "roced(res ordained in the #a$ to
ens(re that the determination of the im"osition or non5im"osition of a safeg(ard
meas(re is "ro"er%
Antecedent Facts
-etitioner So(thern Cross Cement Cor"oration /So(thern Cross0 is a domestic
cor"oration engaged in the b(siness of cement man(fact(ring, "rod(ction, im"ortation
and e<"ortation% Its "rinci"a# stockho#ders are &aihei!o Cement Cor"oration and
&ok(!ama Cor"oration, "(r"orted#! the #argest cement man(fact(rers in =a"an%
*3,
-rivate res"ondent -hi#i""ine Cement 7an(fact(rers Cor"oration
*>,
/-hi#cemcor0 is
an association of domestic cement man(fact(rers% It has eighteen /+10 members,
*2,
"er Record. 8hi#e -hi#cemcor hera#ds itse#f to be an association of domestic cement
man(fact(rers, it a""ears that considerab#e e;(it! ho#dings, if not contro##ing interests in
at #east t$e#ve /+40 of its member5cor"orations, $ere ac;(ired b! the three #argest
cement man(fact(rers in the $or#d, name#! inanciere ?afarge S%.% of rance, Ceme<
S%.% de C%V% of 7e<ico, and @o#cim ?td% of S$it)er#and /former#! @o#derbank inanciere
G#aris, ?td%, then @o#derfin A%V%0%
*1,
On 44 7a! 466+, res"ondent De"artment of &rade and Ind(str! /D&I0 acce"ted an
a""#ication from -hi#cemcor, a##eging that the im"ortation of gra! -ort#and cement
*B,
in
increased ;(antities has ca(sed dec#ines in domestic "rod(ction, ca"acit! (ti#i)ation,
market share, sa#es and em"#o!mentC as $e## as ca(sed de"ressed #oca# "rices%
.ccording#!, -hi#cemcor so(ght the im"osition at first of "rovisiona#, then #ater, definitive
safeg(ard meas(res on the im"ort of cement "(rs(ant to the S7.% -hi#cemcor fi#ed the
a""#ication in beha#f of t$e#ve /+40 of its member5com"anies%
*+6,
.fter "re#iminar! investigation, the A(rea( of Im"ort Services of the D&I, determined
that critica# circ(mstances e<isted '(stif!ing the im"osition of "rovisiona# meas(res%
*++,
On 2 November 466+, the D&I iss(ed an Order, im"osing a "rovisiona# meas(re
e;(iva#ent to &$ent! -esos and Si<t! Centavos /-46%>60 "er fort! /:60 ki#ogram bag on
a## im"ortations of gra! -ort#and cement for a "eriod not e<ceeding t$o h(ndred /4660
da!s from the date of iss(ance b! the A(rea( of C(stoms /AOC0 of the
im"#ementing Customs Memorandum Order%
*+4,
&he corres"onding Customs
Memorandum Order $as iss(ed on +6 December 466+, to take effect that same da!
and to remain in force for t$o h(ndred /4660 da!s%
*+9,
In the meantime, the &ariff Commission, on +B November 466+, received a re;(est
from the D&I for a forma# investigation to determine $hether or not to im"ose a definitive
safeg(ard meas(re on im"orts of gra! -ort#and cement, "(rs(ant to Section B of the
S7. and its Im"#ementing R(#es and Reg(#ations% . notice of commencement of forma#
investigation $as "(b#ished in the ne$s"a"ers on 4+ November 466+% Individ(a# notices
$ere #ike$ise sent to concerned "arties, s(ch as -hi#cemcor, vario(s im"orters and
e<"orters, the Embassies of Indonesia, =a"an and &ai$an, contractorsDb(i#ders
associations, ind(str! associations, cement $orkersE gro("s, cons(mer gro("s, non5
government organi)ations and concerned government agencies%
*+:,
. "re#iminar!
conference $as he#d on 42 November 466+, attended b! severa# concerned "arties,
inc#(ding So(thern Cross%
*+3,
S(bse;(ent#!, the &ariff Commission received severa#
"osition "a"ers both in s(""ort and against -hi#cemcorEs a""#ication%
*+>,
&he &ariff
Commission a#so visited the cor"orate offices and man(fact(ring faci#ities of each of the
a""#icant com"anies, as $e## as that of So(thern Cross and t$o other cement
im"orters%
*+2,
On +9 7arch 4664, the &ariff Commission iss(ed its orma# Investigation Re"ort
/Re"ort0% .mong the factors st(died b! the &ariff Commission in its Re"ort $ere the
market share of the domestic ind(str!,
*+1,
"rod(ction and sa#es,
*+B,
ca"acit! (ti#i)ation,
*46,
financia# "erformance and "rofitabi#it!,
*4+,
and ret(rn on sa#es%
*44,
&he &ariff Commission
arrived at the fo##o$ing conc#(sionsF
+% &he circ(mstances "rovided in .rtic#e GIG of G.&& +BB: need not be demonstrated
since the "rod(ct (nder consideration /gra! -ort#and cement0 is not the s(b'ect of
an! -hi#i""ine ob#igation or tariff concession (nder the 8&O .greement%
Nonethe#ess, s(ch in;(ir! is governed b! the nationa# #egis#ation /R%.% 11660 and
the terms and conditions of the .greement on Safeg(ards%
4% &he co##ective o(t"(t of the t$e#ve /+40 a""#icant com"anies constit(tes a ma'or
"ro"ortion of the tota# domestic "rod(ction of gra! -ort#and cement and b#ended
-ort#and cement%
9% ?oca##! "rod(ced gra! -ort#and cement and b#ended -ort#and cement /-o))o#an0
are #ike to im"orted gra! -ort#and cement%
:% Gra! -ort#and cement is being im"orted into the -hi#i""ines in increased ;(antities,
both in abso#(te terms and re#ative to domestic "rod(ction, starting in 4666% &he
increase in vo#(me of im"orts is recent, s(dden, shar" and significant%
3% &he ind(str! has not s(ffered and is not s(ffering significant overa## im"airment in its
condition, i.e%, serio(s in'(r!%
>% &here is no threat of serio(s in'(r! that is imminent from im"orts of gra! -ort#and
cement%
2% Ca(sation has become moot and academic in vie$ of the negative determination of
the e#ements of serio(s in'(r! and imminent threat of serio(s in'(r!%
*49,
.ccording#!, the &ariff Commission made the fo##o$ing recommendation, to $itF
The elements of serious injury and imminent threat of serious injury not having been
established, it is hereby recommended that no definitive general safeguard measure be
imposed on the importation of gray Portland cement.
*4:,
&he D&I received the Re"ort on +: 7arch 4664% .fter revie$ing the re"ort, then D&I
Secretar! 7an(e# Ro<as II /D&I Secretar!0 disagreed $ith the conc#(sion of the &ariff
Commission that there $as no serio(s in'(r! to the #oca# cement ind(str! ca(sed b! the
s(rge of im"orts%
*43,
In vie$ of this disagreement, the D&I re;(ested an o"inion from the
De"artment of =(stice /DO=0 on the D&I Secretar!Es sco"e of o"tions in acting on the
CommissionEs recommendations% S(bse;(ent#!, then DO= Secretar! @ernando -ere)
rendered an o"inion stating that Section +9 of the S7. "rec#(ded a revie$ b! the D&I
Secretar! of the &ariff CommissionEs negative finding, or finding that a definitive
safeg(ard meas(re sho(#d not be im"osed%
*4>,
On 3 ."ri# 4664, the D&I Secretar! "rom(#gated a Decision. .fter ;(oting the
conc#(sions of the &ariff Commission, the D&I Secretar! noted the D&IEs disagreement
$ith the conc#(sions% @o$ever, he a#so cited the DO= O"inion advising the D&I that it
$as bo(nd b! the negative finding of the &ariff Commission% &h(s, he r(#ed as fo##o$sF
The DTI has no alternative but to abide by the [Tariff] Commissions
recommendations.
IN VIEW OF THE FOREGOING, and in accordance !ith "ection #$ of %& ''((
!hich states)
In the event of a negative final determination; or if the cash bond is in excess of
the definitive safeguard duty assessed, the Secretary shall immediately issue,
through the Secretary of Finance, a written instruction to the Commissioner of
Customs, authorizing the return of the cash bond or the remainder thereof, as the
case may be, previously collected as provisional general safeguard measure within
ten !"# days from the date a final decision has been made; $rovided, that the
government shall not be liable for any interest on the amount to be returned% &he
Secretary shall not accept for consideration another petition from the same
industry, with respect to the same imports of the product under consideration within
one !# year after the date of rendering such a decision%'
&he D&I hereb! iss(es the fo##o$ingF
The application for safeguard measures against the importation of gray Portland
cement filed by P*I+C,-C.% /Case 0o. (121((#3 is hereby denied.
*42,
/,mphasis in
the original3
-hi#cemcor received a co"! of the D&I Decision on +4 ."ri# 4664% &en da!s #ater, it
fi#ed $ith the Co(rt of .""ea#s a Petition for Certiorari, Prohibition and
Mandamus
*41,
seeking to set aside the D&I Decision, as $e## as the &ariff CommissionEs
Re"ort% -hi#cemcor #ike$ise a""#ied for a Temporary Restraining Order/n!unction to
en'oin the D&I and the AOC from im"#ementing the ;(estioned Decision and Re"ort% It
"ra!ed that the Co(rt of .""ea#s direct the D&I Secretar! to disregard the Re"ort and to
render '(dgment inde"endent#! of the Re"ort% -hi#cemcor arg(ed that the D&I
Secretar!, vested as he is (nder the #a$ $ith the "o$er of revie$, is not bo(nd to ado"t
the recommendations of the &ariff CommissionC and, that the Re"ort is void, as it is
"redicated on a f#a$ed frame$ork, inconsistent inferences and erroneo(s methodo#og!%
*4B,
On +6 =(ne 4664, So(thern Cross fi#ed its Comment%
*96,
It arg(ed that the Co(rt of
.""ea#s had no '(risdiction over -hi#cemcorEs Petition, for it is on the Co(rt of &a<
.""ea#s /C&.0 that the S7. conferred '(risdiction to revie$ r(#ings of the Secretar! in
connection $ith the im"osition of a safeg(ard meas(re% It #ike$ise arg(ed that
-hi#cemcorEs resort to the s"ecia# civi# action of certiorari is im"ro"er, considering that
$hat -hi#cemcor so(ght to rectif! is an error of '(dgment and not an error of '(risdiction
or grave ab(se of discretion, and that a "etition for revie$ $ith the C&. $as avai#ab#e
as a "#ain, s"eed! and ade;(ate remed!% ina##!, So(thern Cross echoed the DO=
O"inion that Section +9 of the S7. "rec#(des a revie$ b! the D&I Secretar! of a
negative finding of the &ariff Commission%
.fter cond(cting a hearing on +B =(ne 4664 on -hi#cemcorEs a""#ication for
"re#iminar! in'(nction, the Co(rt of .""ea#sE &$e#fth Division
*9+,
granted the $rit so(ght in
its Reso"ution dated 4+ =(ne 4664%
*94,
Seven da!s #ater, on 41 =(ne 4664, the t$o5
h(ndred /4660da! "eriod for the im"osition of the "rovisiona# meas(re e<"ired% Des"ite
the #a"se of the "eriod, the AOC contin(ed to im"ose the "rovisiona# meas(re on a##
im"ortations of -ort#and cement made b! So(thern Cross% &he (ninterr("ted
assessment of the tariff, according to So(thern Cross, $orked to its detriment to the
"oint that the contin(ed im"osition $o(#d event(a##! #ead to its c#os(re%
*99,
So(thern Cross time#! fi#ed a Motion for Reconsideration of the Reso"ution on B
Se"tember 4664% .##eging that -hi#cemcor $as not entit#ed to "rovisiona# re#ief,
So(thern Cross #ike$ise so(ght a c#arificator! order as to $hether the grant of the $rit
of "re#iminar! in'(nction co(#d e<tend the ear#ier im"osition of the "rovisiona# meas(re
be!ond the t$o h(ndred /4660da! #imit im"osed b! #a$% &he a""ea#sE co(rt fai#ed to
take immediate action on So(thern CrossEs motion des"ite the fo(r /:0 motions for ear#!
reso#(tion the #atter fi#ed bet$een Se"tember of 4664 and ebr(ar! of 4669% .fter si<
/>0 months, on +B ebr(ar! 4669, the Co(rt of .""ea#s directed -hi#cemcor to comment
on So(thern CrossEsMotion for Reconsideration%
*9:,
.fter -hi#cemcor fi#ed
its Opposition
*93,
on +9 7arch 4669, So(thern Cross fi#ed another set of fo(r /:0 motions
for ear#! reso#(tion%
Des"ite the efforts of So(thern Cross, the Co(rt of .""ea#s fai#ed to direct#! reso#ve
the Motion for Reconsideration% Instead, on 3 =(ne 4669, it rendered a Decision,
*9>,
granting in "art -hi#cemcorEs "etition% &he a""e##ate co(rt r(#ed that it had '(risdiction
over the "etition for certiorari since it a##eged grave ab(se of discretion% It ref(sed to
ann(# the findings of the &ariff Commission, citing the r(#e that fact(a# findings of
administrative agencies are binding ("on the co(rts and its coro##ar!, that co(rts sho(#d
not interfere in matters addressed to the so(nd discretion and coming (nder the s"ecia#
technica# kno$#edge and training of s(ch agencies%
*92,
Neverthe#ess, it he#d that the D&I
Secretar! is not bo(nd b! the fact(a# findings of the &ariff Commission since
s(ch findings are mere#! recommendator! and the! fa## $ithin the ambit of the
Secretar!Es discretionar! revie$% It determined that the #egis#ative intent is to grant the
D&I Secretar! the "o$er to make a fina# decision on the &ariff CommissionEs
recommendation%
*91,
&he dis"ositive "ortion of the Decision readsF
WHEREFORE, based on the foregoing premises, petitioners prayer to set aside the
findings of the Tariff Commission in its assailed %eport dated -arch #$,
1((1is DENIED. .n the other hand, the assailed &pril 4, 1((1 Decision of the
"ecretary of the Department of Trade and Industry is hereby SET
ASIDE. Conse5uently, the case is REMANDED to the public respondent "ecretary
of Department of Trade and Industry for a final decision in accordance !ith %& ''((
and its Implementing %ules and %egulations.
SO ORDERED.
*9B,
On 49 =(ne 4669, So(thern Cross fi#ed the "resent "etition, assai#ing the a""e##ate
co(rtEs Decision for de"arting from the acce"ted and (s(a# co(rse of '(dicia#
"roceedings, and not deciding the s(bstantia# ;(estions in accordance $ith #a$ and
'(ris"r(dence% &he "etition arg(es in the main that the Co(rt of .""ea#s has no
'(risdiction over -hi#cemcorEs "etition, the "ro"er remed! being a "etition for revie$ $ith
the C&. conformab#! $ith the S7., andC that the fact(a# findings of the &ariff
Commission on the e<istence or non5e<istence conditions $arranting the im"osition of
genera# safeg(ard meas(res are binding ("on the D&I Secretar!%
&he time#! fi#ing of So(thern CrossEs "etition before this Co(rt necessari#! "revented
the Co(rt of .""ea#s Decision from becoming fina#%
*:6,
Het on 43 =(ne 4669, the D&I
Secretar! iss(ed a ne$ Decision, r(#ing this time that that in #ight of the a""e##ate
co(rtEs Decision there $as no #onger an! #ega# im"ediment to his deciding -hi#cemcorEs
a""#ication for definitive safeg(ard meas(res%
*:+,
@e made a determination that, contrar!
to the findings of the &ariff Commission, the #oca# cement ind(str! had s(ffered serio(s
in'(r! as a res(#t of the im"ort s(rges%
*:4,
.ccording#!, he im"osed a definitive safeg(ard
meas(re on the im"ortation of gra! -ort#and cement, in the form of a definitive
safeg(ard d(t! in the amo(nt of -46%>6D:6 kg% bag for three !ears on im"orted gra!
-ort#and Cement%
*:9,
On 2 =(#! 4669, So(thern Cross fi#ed $ith the Co(rt a #ery $rgent App"ication for a
Temporary Restraining Order and/or A %rit of Pre"iminary n!unction
/&RO App"ication0, seeking to en'oin the D&I Secretar! from enforcing his Decision of
43 =(ne 4669 in vie$ of the "ending "etition before this Co(rt% -hi#cemcor fi#ed an
o""osition, c#aiming, among others, that it is not this Co(rt b(t the C&. that has
'(risdiction over the a""#ication (nder the #a$%
On + .(g(st 4669, So(thern Cross fi#ed $ith the C&. a Petition for Re&ie',
assai#ing the D&I Secretar!Es 43 =(ne 4669 Decision $hich im"osed the definite
safeg(ard meas(re% -rescinding from this action, -hi#cemcor fi#ed $ith this Co(rt
a Manifestation and Motion to Dismissin regard to So(thern CrossEs "etition, a##eging
that it de#iberate#! and $i##f(##! resorted to for(m5sho""ing% It "oints o(t that So(thern
CrossEs &RO App"ication seeks to en'oin the D&I Secretar!Es second decision, $hi#e
its Petition before the C&. "ra!s for the ann(#ment of the same decision%
*::,
Reiterating its Comment on So(thern CrossEs Petition for Re&ie', -hi#cemcor a#so
arg(es that the C&., being a s"ecia# co(rt of #imited '(risdiction, co(#d on#! revie$ the
r(#ing of the D&I Secretar! $hen a safeg(ard meas(re is im"osed, and that the fact(a#
findings of the &ariff Commission are not binding on the D&I Secretar!%
*:3,
.fter giving d(e co(rse to So(thern CrossEs Petition, the Co(rt ca##ed the case for
ora# arg(ment on +1 ebr(ar! 466:%
*:>,
.t the ora# arg(ment, attended b! the co(nse# for
-hi#cemcor and So(thern Cross and the Office of the So#icitor Genera#, the Co(rt
sim"#ified the iss(es in this $iseF /i0 $hether the Decision of the D&I Secretar! is
a""ea#ab#e to the C&. or the Co(rt of .""ea#sC /ii0 ass(ming that the Co(rt of .""ea#s
has '(risdiction, $hether its Decision is in accordance $ith #a$C and, /iii0 $hether
a Temporary Restraining Order is $arranted%
*:2,
D(ring the ora# arg(ments, co(nse# for So(thern Cross manifested that d(e to the
im"osition of the genera# safeg(ard meas(res, So(thern Cross $as forced to cease
o"erations in the -hi#i""ines in November of 4669%
*:1,
Propriety of the Temporary Restraining Order
Aefore the merits of the Petition, a brief comment on So(thern CrossEs a""#ication
for "rovisiona# re#ief% It so(ght to en'oin the D&I Secretar! from enforcing the definitive
safeg(ard meas(re he im"osed in his 43 =(ne 4669 Decision% &he Co(rt did not grant
the "rovisiona# re#ief for it $o(#d be tantamo(nt to en'oining the co##ection of ta<es, a
"erem"tor! '(dicia# act $hich is traditiona##! fro$ned ("on,
*:B,
(n#ess there is a c#ear
stat(tor! basis for it%
*36,
In that regard, Section 4+1 of the &a< Reform .ct of +BB2
"rohibits an! co(rt from granting an in'(nction to restrain the co##ection of an! nationa#
interna# reven(e ta<, fee or charge im"osed b! the interna# reven(e code%
*3+,
. simi#ar
"hi#oso"h! is e<"ressed b! Section 4B of the S7., $hich states that the fi#ing of a
"etition for revie$ before the C&. does not sto", s(s"end, or other$ise to## the
im"osition or co##ection of the a""ro"riate tariff d(ties or the ado"tion of other
a""ro"riate safeg(ard meas(res%
*34,
&his evinces a c#ear #egis#ative intent that the
im"osition of safeg(ard meas(res, des"ite the avai#abi#it! of '(dicia# revie$, sho(#d not
be en'oined not$ithstanding an! time#! a""ea# of the im"osition%
The Forum()hopping ssue
In the same breath, $e are not convinced that the a##egation of for(m5sho""ing has
been d(#! "roven, or that sanction sho(#d befa## ("on So(thern Cross and its co(nse#%
&he standard b! Section 3, R(#e 2 of the +BB2 R(#es of Civi# -roced(re in order that
sanction ma! be had is that the acts of the "art! or his co(nse# c#ear#! constit(te $i##f(#
and de#iberate for(m sho""ing%
*39,
&he standard im"#ies a ma#icio(s intent to s(bvert
"roced(ra# r(#es, and s(ch state of mind is not evident in this case%
The *urisdictiona" ssue
On to the merits of the "resent "etition%
In its assai#ed Decision, the Co(rt of .""ea#s, after asserting on#! in brief that it had
'(risdiction over -hi#cemcorEs Petition, disc(ssed the iss(e of $hether or not the D&I
Secretar! is bo(nd to ado"t the negative recommendation of the &ariff Commission on
the a""#ication for safeg(ard meas(re% &he Co(rt of .""ea#s maintained that it had
'(risdiction over the "etition, as it a##eged grave ab(se of discretion on the "art of the
D&I Secretar!, th(sF
& perusal of the instant petition reveals allegations of grave abuse of discretion on the
part of the DTI "ecretary in rendering the assailed &pril 4, 1((1 Decision !herein it
!as ruled that he had no alternative but to abide by the findings of the Commission on
the matter of safeguard measures for the local cement industry. &buse of discretion is
admittedly !ithin the ambit of certiorari.
6rave abuse of discretion implies such capricious and !himsical e7ercise of judgment
as is e5uivalent to lac8 of jurisdiction. It is alleged that, in the assailed Decision, the
DTI "ecretary gravely abused his discretion in !antonly evading to discharge his duty
to render an independent determination or decision in imposing a definitive safeguard
measure.
*3:,
8e do not do(bt that the Co(rt of .""ea#sE certiorari "o$ers e<tend to correcting
grave ab(se of discretion on the "art of an officer e<ercising '(dicia# or ;(asi5'(dicia#
f(nctions%
*33,
@o$ever, the s"ecia# civi# action of certiorari is avai#ab#e on#! $hen there is
no "#ain, s"eed! and ade;(ate remed! in the ordinar! co(rse of #a$%
*3>,
So(thern Cross
re#ies on this #imitation, stressing that Section 4B of the S7. is a "#ain, s"eed! and
ade;(ate remed! in the ordinar! co(rse of #a$ $hich -hi#cemcor did not avai# of% &he
Section readsF
"ection 19. Judicial Review. : &ny interested party !ho is adversely affected by
the ruling of the Secretar in connection !ith the i"#o$ition of a $afeguar%
"ea$ure may file !ith the CT&, a petition for revie! of such ruling !ithin thirty /$(3
days from receipt thereof. Provided, however, that the filing of such petition for
revie! shall not in any !ay stop, suspend or other!ise toll the imposition or
collection of the appropriate tariff duties or the adoption of other appropriate
safeguard measures, as the case may be.
The petition for revie! shall comply !ith the same re5uirements and shall follo! the
same rules of procedure and shall be subject to the same disposition as in appeals in
connection !ith adverse rulings on ta7 matters to the Court of &ppeals.
*32,
/,mphasis
supplied3
It is not diffic(#t to divine $h! the #egis#at(re sing#ed o(t the C&. as the co(rt $ith
'(risdiction to revie$ the r(#ing of the D&I Secretar! in connection $ith the im"osition of
a safeg(ard meas(re% &he Co(rt has #ong recogni)ed the #egis#ative determination to
vest so#e and e<c#(sive '(risdiction on matters invo#ving interna# reven(e and c(stoms
d(ties to s(ch a s"ecia#i)ed co(rt%
*31,
A! the ver! nat(re of its f(nction, the C&. is
dedicated e<c#(sive#! to the st(d! and consideration of ta< "rob#ems and has
necessari#! deve#o"ed an e<"ertise on the s(b'ect%
*3B,
.t the same time, since the C&. is a co(rt of #imited '(risdiction, its '(risdiction to
take cogni)ance of a case sho(#d be c#ear#! conferred and sho(#d not be deemed to
e<ist on mere im"#ication%
*>6,
Conceded#!, Re"% .ct No% ++43, the stat(te creating the
C&., does not e<tend to it the "o$er to revie$ decisions of the D&I Secretar! in
connection $ith the im"osition of safeg(ard meas(res%
*>+,
Of co(rse, at that time $hich
$as before the advent of trade #ibera#i)ation the notion of safeg(ard meas(res or safet!
nets $as not !et in vog(e%
Indeniab#!, ho$ever, the S7. e<"anded the '(risdiction of the C&. b! inc#(ding
revie$ of the r(#ings of the D&I Secretar! in connection $ith the im"osition of safeg(ard
meas(res% @o$ever, -hi#cemcor and the "(b#ic res"ondents agree that the C&. has
a""e##ate '(risdiction over a decision of the D&I Secretar! im"osing a safeg(ard
meas(re, b(t not $hen his r(#ing is %o) to im"ose s(ch meas(re%
In a re#ated deve#o"ment, Re"% .ct No% B414, enacted on 96 7arch 466:, e<"ress#!
vests (nto the C&. '(risdiction over *d,ecisions of the Secretar! of &rade and
Ind(str!, in case of nonagric(#t(ra# "rod(ct, commodit! or artic#e <<< invo#ving
<<< *$+,-u$.& /,$*u.,* u%&,. R,0u1l23 A3) No. 8800, 45,., ,2)5,. 0$.)y /$y
$00,$l )5, &,32*2o% )o 2/0o*, o. %o) )o 2/0o*, *$2& &u)2,*%
*>4,
@ad Re"% .ct No%
B414 a#read! been in force at the beginning of the incidents s(b'ect of this case, there
$o(#d have been no need to make an! dee"er in;(ir! as to the e<tent of the C&.Es
'(risdiction% A(t as Re"% .ct No% B414 cannot be a""#ied retroactive#! to the "resent
case, the ;(estion of $hether s(ch '(risdiction e<tends to a decision not to im"ose a
safeg(ard meas(re $i## have to be sett#ed "rinci"a##! on the basis of the S7.%
Inder Section 4B of the S7., there are three re;(isites to enab#e the C&. to
ac;(ire '(risdiction over the "etition for revie$ contem"#ated thereinF /i0 there m(st be a
r(#ing b! the D&I Secretar!C /ii0 the "etition m(st be fi#ed b! an interested "art!
adverse#! affected b! the r(#ingC and /iii0 s(ch r(#ing m(st be in connection $ith the
im"osition of a safeg(ard meas(re% &he first t$o re;(isites are c#ear#! "resent% &he
third re;(isite deserves c#oser scr(tin!%
Contrar! to the stance of the "(b#ic res"ondents and -hi#cemcor, in this case
$here the D&I Secretar! decides not to im"ose a safeg(ard meas(re, it is the C&.
$hich has '(risdiction to revie$ his decision% &he reasons are as fo##o$sF
First. S"#it '(risdiction is abhorred%
Essentia##!, res"ondentsE "osition is that '(dicia# revie$ of the D&I Secretar!Es r(#ing
is e<ercised b! t$o different co(rts, de"ending on $hether or not it im"oses a safeg(ard
meas(re, and in either case the co(rt e<ercising '(risdiction does so to the e<c#(sion of
the other% &h(s, if the D&I decision invo#ves the im"osition of a safeg(ard meas(re it is
the C&. $hich has a""e##ate '(risdictionC other$ise, it is the Co(rt of .""ea#s% S(ch
set(" is as nove# and (n(s(a# as it is c(mbersome and (n$ise% Essentia##!,
res"ondents advocate that Section 4B of the S7. has estab#ished s"#it a""e##ate
'(risdiction over r(#ings of the D&I Secretar! on the im"osition of safeg(ard meas(re%
&his inter"retation cannot be favored, as the Co(rt has consistent#! ref(sed to
sanction s"#it '(risdiction%
*>9,
&he "o$er of the D&I Secretar! to ado"t or $ithho#d a
safeg(ard meas(re emanates from the same stat(tor! so(rce, and it bogg#es the mind
$h! the a""ea# moda#it! $o(#d be s(ch that one a""e##ate co(rt is ;(a#ified if $hat is to
be revie$ed is a "ositive determination, and it is not if $hat is a""ea#ed is a negative
determination% In deciding $hether or not to im"ose a safeg(ard meas(re, "rovisiona# or
genera#, the D&I Secretar! $o(#d be eva#(ating on#! one bod! of facts and a""#!ing
them to one set of #a$s% &he revie$ing trib(na# $i## be ca##ed ("on to e<amine the same
facts and the same #a$s, $hether or not the determination is "ositive or negative%
In short, if $e $ere to r(#e for res"ondents $e $o(#d be confirming the e<ercise b!
t$o '(dicia# bodies of '(risdiction over basica##! the same s(b'ect matter"recise#! the
s"#it5'(risdiction sit(ation $hich is anathema to the order#! administration of '(stice%
*>:,
&he Co(rt cannot acce"t that s(ch $as the #egis#ative motive es"ecia##! considering
that the #a$ e<"ress#! confers on the C&., the trib(na# $ith the s"ecia#i)ed com"etence
over ta< and tariff matters, the ro#e of '(dicia# revie$ $itho(t mention of an! other co(rt
that ma! e<ercise coro##ar! or anci##ar! '(risdiction in re#ation to the S7.% &he "rovision
refers to the Co(rt of .""ea#s b(t on#! in regard to "roced(ra# r(#es and dis"ositions of
a""ea#s from the C&. to the Co(rt of .""ea#s%
*>3,
&he "rinci"#e en(nciated in Te!ada &. +omestead Property Corporation
*>>,
is
a""#icab#e to the case at barF
The Court agrees !ith the observation of the [that] !hen an administrative agency or
body is conferred 5uasi2judicial functions, all contro&er$ie$ relating to the $u'(ect
"atter #ertaining to it$ $#eciali)ation are %ee"e% to 'e inclu%e% !ithin the
(uri$%iction of $ai% a%"ini$trati&e agenc or 'o%. S#lit (uri$%iction i$ not
fa&ore%.
*>2,
)econd. &he inter"retation of the "rovisions of the S7. favors vesting (ntramme#ed
a""e##ate '(risdiction on the C&.%
. "#ain reading of Section 4B of the S7. revea#s that Congress did not e<"ress#!
bar the C&. from revie$ing a negative determination b! the D&I Secretar! nor conferred
on the Co(rt of .""ea#s s(ch revie$ a(thorit!% Res"ondents note, on the other hand,
that neither did the #a$ e<"ress#! grant to the C&. the "o$er to revie$ a negative
determination% @o$ever, (nder the c#ear te<t of the #a$, the C&. is vested $ith
'(risdiction to revie$ the r(#ing of the D&I Secretar! 2% 3o%%,3)2o% 42)5 the im"osition
of a safeg(ard meas(re% @ad the #a$ been co(ched instead to incor"orate the "hrase
the r(#ing im"osing a safeg(ard meas(re, then res"ondentEs c#aim $o(#d have
indis"(tab#e merit% Indo(bted#!, the "hrase in connection $ith not on#! ;(a#ifies b(t
c#arifies the s(cceeding "hrase im"osition of a safeg(ard meas(re% .s e<"o(nded
#ater, the "hrase a#so encom"asses the o""osite or converse r(#ing $hich is the non5
im"osition of a safeg(ard meas(re%
In the .merican case of )ha' &. De"ta Air ,ines, nc.,
*>1,
the Inited States S("reme
Co(rt, in inter"reting a ke! "rovision of the Em"#o!ee Retirement Sec(rit! .ct of +B2:,
constr(ed the "hrase re#ates to in its norma# sense $hich is the same as if it has
connection $ith or reference to%
*>B,
&here is no serio(s dis"(te that the "hrase in
connection $ith is s!non!mo(s to re#ates to or reference to, and that a## three
"hrases are broad#! e<"ansive% &his is affirmed not '(st b! '(ris"r(dentia# fiat, b(t a#so
the ac;(ired connotative meaning of in connection $ith in common
"ar#ance% Conse;(ent#!, $ith the (se of the "hrase in connection $ith, Section 4B
a##o$s the C&. to revie$ not on#! the r(#ing im"osing a safeg(ard meas(re, b(t a##
other .ul2%-* .,l$),& o. 5$6, .,+,.,%3, )o )5, $00l23$)2o% +o. *u35 /,$*u.,%
No$, #et (s determine the ma<im(m sco"e and reach of the "hrase in connection
$ith as (sed in Section 4B of the S7.% . #itera#ist reading or #ing(istic s(rve! ma! not
satisf!% Even the IS S("reme Co(rt in -e' .or/ )tate 0"ue Cross P"ans &. Tra&e"ers
ns%
*26,
conceded that the "hrases re#ate to or in connection $ith ma! be e<tended to
the farthest stretch of indeterminac! for, (niversa##!, re#ations or connections are infinite
and sto" no$here%
*2+,
&h(s, in the case the IS @igh Co(rt, e<amining the same "hrase
of the same "rovision of #a$ invo#ved in )ha', resorted to #ooking at the stat(te and its
ob'ectives as the a#ternative to an (ncritica# #itera#ism%
*24,
. simi#ar in;(ir! into the other
"rovisions of the S7. is in order to determine the sco"e of revie$ accorded therein to
the C&.%
*29,
&he a(thorit! to decide on the safeg(ard meas(re is vested in the D&I Secretar! in
the case of non5agric(#t(ra# "rod(cts, and in the Secretar! of the De"artment of
.gric(#t(re in the case of agric(#t(ra# "rod(cts%
*2:,
Section 4B is #ike$ise e<"#icit that on#!
the r(#ings of the D&I Secretar! or the .gric(#t(re Secretar! ma! be revie$ed b! the
C&.%
*23,
&h(s, the acts of other bodies that $ere granted some "o$ers b! the S7., s(ch
as the &ariff Commission, are not s(b'ect to direct revie$ b! the C&.%
Inder the S7., the De"artment Secretar! concerned is a(thori)ed to decide on
severa# matters% 8ithin thirt! /960 da!s from recei"t of a "etition seeking the im"osition
of a safeg(ard meas(re, or from the date he made motu proprio initiation, the Secretar!
sha## make a "re#iminar! determination on $hether the increased im"orts of the "rod(ct
(nder consideration s(bstantia##! ca(se or threaten to ca(se serio(s in'(r! to the
domestic ind(str!%
*2>,
S(ch r(#ing is cr(cia# since on#! ("on the Secretar!Es "ositive
"re#iminar! determination that a threat to the domestic ind(str! e<ists sha## the matter
be referred to the &ariff Commission for forma# investigation, this time, to determine
$hether the genera# safeg(ard meas(re sho(#d be im"osed or not%
*22,
-(rs(ant to a
"ositive "re#iminar! determination, the Secretar! ma! a#so decide that the im"osition of
a "rovisiona# safeg(ard meas(re $o(#d be $arranted (nder Section 1 of the S7.%
*21,
&he
Secretar! is a#so a(thori)ed to decide, after recei"t of the re"ort of the &ariff
Commission, $hether or not to im"ose the genera# safeg(ard meas(re, and if in the
affirmative, $hat genera# safeg(ard meas(res sho(#d be a""#ied%
*2B,
Even after the
genera# safeg(ard meas(re is im"osed, the Secretar! is em"o$ered to e<tend the
safeg(ard meas(re,
*16,
or terminate, red(ce or modif! his "revio(s r(#ings on the genera#
safeg(ard meas(re%
*1+,
8ith the e<"#icit grant of certain "o$ers invo#ving safeg(ard meas(res b! the S7.
on the D&I Secretar!, it fo##o$s that he is em"o$ered to r(#e on severa# iss(es% &hese
are the iss(es $hich arise in connection $ith, or in re#ation to, the im"osition of a
safeg(ard meas(re% &he! ma! arise at different stages J the "re#iminar! investigation
stage, the "ost5forma# investigation stage, or the "ost5safeg(ard meas(re stage J !et a##
these iss(es do become ri"e for reso#(tion beca(se an initiator! action has been taken
seeking the im"osition of a safeg(ard meas(re% It is the initiator! action for the
im"osition of a safeg(ard meas(re that sets the $hee#s in motion, a##o$ing the
Secretar! to make s(ccessive r(#ings, beginning $ith the "re#iminar! determination%
C#ear#!, therefore, the sco"e and reach of the "hrase in connection $ith, as
intended b! Congress, "ertain to $ll .ul2%-* o+ )5, "TI S,3.,)$.y o. A-.23ul)u.,
S,3.,)$.y 45235 $.2*, +.o/ )5, )2/, $% $00l23$)2o% o. motu proprio 2%2)2$)2o% +o.
)5, 2/0o*2)2o% o+ $ *$+,-u$.& /,$*u., 2* )$7,%. Indeed, the incidents $hich re;(ire
reso#(tion come to the fore on#! beca(se there is an initia# a""#ication or action seeking
the im"osition of a safeg(ard meas(re% rom the #egis#ative stand"oint, it $as a matter
of sense and "ractica#it! to #(m" (" the ;(estions re#ated to the initiator! a""#ication or
action for safeg(ard meas(re and to assign on#! one co(rt andC that is the C&. to
initia##! revie$ a## the r(#ings re#ated to s(ch initiator! a""#ication or action% Aoth
directions Congress "(t in "#ace b! em"#o!ing the "hrase in connection $ith in the
#a$%
Given the re#ative e<"anse of decisions s(b'ect to '(dicia# revie$ b! the C&. (nder
Section 4B, $e do not do(bt that a negative r(#ing ref(sing to im"ose a safeg(ard
meas(re fa##s $ithin the sco"e of its '(risdiction% On a #itera# #eve#, s(ch negative r(#ing is
a r(#ing of the Secretar! in connection $ith the im"osition of a safeg(ard meas(re, as
it is one of the "ossib#e o(tcomes that ma! res(#t from the initia# a""#ication or action for
a safeg(ard meas(re% On a more critica# #eve#, the r(#ings of the D&I Secretar! in
connection $ith a safeg(ard meas(re, ho$ever diverse the o(tcome ma! be, arise from
the same grant of '(risdiction on the D&I Secretar! b! the S7.%
*14,
&he ref(sa# b! the D&I
Secretar! to grant a safeg(ard meas(re invo#ves the same grant of a(thorit!, the same
stat(tor! "rescri"tions, and the same degree of discretion as the im"osition b! the D&I
Secretar! of a safeg(ard meas(re%
&he "osition of the res"ondents is one of (ncritica# #itera#ism
*19,
incongr(ent $ith the
anim(s of the #a$% 7oreover, a f(ndamenta#ist a""roach to Section 4B is not $arranted,
considering the abs(rdit! of the conse;(ences%
Third. nterpretatio Ta"is n Ambiguis )emper Fienda 1st, $t 1&itur ncon&eniens 1t
Absurdum.
*1:,
Even ass(ming arguendo that Section 4B has not e<"ress#! granted the C&.
'(risdiction to revie$ a negative r(#ing of the D&I Secretar!, the Co(rt is "rec#(ded from
favoring an inter"retation that $o(#d ca(se inconvenience and abs(rdit!%
*13,
.do"ting the
res"ondentsE "osition favoring the C&.Es minima# '(risdiction $o(#d (nnecessari#! #ead
to i##ogica# and onero(s res(#ts%
Indeed, it is i##ibera# to ass(me that Congress had intended to "rovide a""e##ate
re#ief to r(#ings im"osing a safeg(ard meas(re b(t not to those dec#ining to im"ose the
meas(re% Res"ondents might arg(e that the right to re#ief from a negative r(#ing is not
#ost since the a""#icant co(#d, as -hi#cemcor did, ;(estion s(ch r(#ing thro(gh a s"ecia#
civi# action for certiorari (nder R(#e >3 of the +BB2 R(#es of Civi# -roced(re, in #ie( of an
a""ea# to the C&.% Het these t$o re#iefs are of differing nat(res and gravamen% 8hi#e an
a""ea# ma! be "redicated on errors of fact or errors of #a$, a s"ecia# civi# action for
certiorari is gro(nded on grave ab(se of discretion or #ack of or e<cess of '(risdiction on
the "art of the decider% or a s"ecia# civi# action for certiorari to s(cceed, it is not eno(gh
that the ;(estioned act of the res"ondent is $rong% .s the Co(rt c#arified in )empio &.
Court of Appea"sF
& tribunal, board or officer acts !ithout jurisdiction if it;he does not have the legal
po!er to determine the case. There is e7cess of jurisdiction !here, being clothed !ith
the po!er to determine the case, the tribunal, board or officer oversteps its;his
authority as determined by la!. &nd there is grave abuse of discretion !here the
tribunal, board or officer acts in a capricious, !himsical, arbitrary or despotic manner
in the e7ercise of his judgment as to be said to be e5uivalent to lac8 of jurisdiction.
Certiorari is often resorted to in order to correct errors of jurisdiction. <here the error
is one of la! or of fact, !hich is a mista8e of judgment, appeal is the remedy.
*1>,
It is ver! conceivab#e that the D&I Secretar!, after de#iberate tho(ght and caref(#
eva#(ation of the evidence, ma! either make a negative "re#iminar! determination as he
is so em"o$ered (nder Section 2 of the S7., or ref(se to ado"t the definitive
safeg(ard meas(re (nder Section +9 of the same #a$% .do"ting the res"ondentsE
theor!, this negative r(#ing is s(sce"tib#e to reversa# on#! thro(gh a s"ecia# civi# action
for certiorari, th(s de"riving the affected "art! the chance to e#evate the r(#ing on a""ea#
on the r(dimentar! gro(nds of errors in fact or in #a$% Instead, and des"ite $hatever
indications that the D&I Secretar! acted $ith meas(re and $ithin the bo(nds of his
'(risdiction are, the aggrieved "art! $i## be forced to resort to a g!mnastic e<ercise,
contorting the straight and narro$ in an effort to discombob(#ate the co(rts into
be#ieving that $hat $as $ithin $as act(a##! be!ond and $hat $as st(died and de#iberate
act(a##! $himsica# and ca"ricio(s% 8hat then $o(#d be the remed! of the "art!
aggrieved b! a negative r(#ing that sim"#! erred in inter"reting the facts or the #a$K It
certain#! cannot be the s"ecia# civi# action for certiorari, for as the Co(rt he#d in )i"&erio
&. Court of Appea"s2 Certiorari is a remed! narro$ in its sco"e and inf#e<ib#e in its
character% It is not a genera# (ti#it! too# in the #ega# $orksho"%
*12,
ort(nate#!, this theoretica# ;(andar! need not come to "ass% Section 4B of the
S7. is $orded in s(ch a $a! that it "#aces (nder the C&.Es '(dicia# revie$ a## r(#ings of
the D&I Secretar!, $hich are connected $ith the im"osition of a safeg(ard meas(re%
&his is so(nd and "ro"er in #ight of the s"ecia#i)ed '(risdiction of the C&. over ta<
matters% In the same $a! that a ;(estion of $hether to ta< or not to ta< is "ro"er#! a ta<
matter, so is the ;(estion of $hether to im"ose or not to im"ose a definitive safeg(ard
meas(re%
On another note, the second "aragra"h of Section 4B simi#ar#! revea#s the
#egis#ative intent that r(#ings of the D&I Secretar! over safeg(ard meas(res sho(#d first
be revie$ed b! the C&. and not the Co(rt of .""ea#s% It readsF
The petition for revie! shall comply !ith the same re5uirements and shall follo! the
same rules of procedure and shall be subject to the same disposition as in appeals in
connection !ith adverse rulings on ta7 matters to the Court of &ppeals.
&his is the on#! "assage in the S7. in $hich the Co(rt of .""ea#s is mentioned%
&he e<"ress $ish of Congress is that the "etition conform to the re;(irements and
"roced(re (nder R(#e :9 of the R(#es of Civi# -roced(re% Since Congress mandated
that the form and "roced(re ado"ted be ana#ogo(s to a revie$ of a C&. r(#ing b! the
Co(rt of .""ea#s, the #egis#ative contem"#ation co(#d not have been that the a""ea# be
direct#! taken to the Co(rt of .""ea#s%
ssue of 0inding 1ffect of Tariff
Commission3s Factua" Determination
on DT )ecretary.
&he ne<t iss(e for reso#(tion is $hether the fact(a# determination made b! the &ariff
Commission (nder the S7. is binding on the D&I Secretar!% Other$ise stated, the
;(estion is $hether the D&I Secretar! ma! im"ose genera# safeg(ard meas(res in the
absence of a "ositive fina# determination b! the &ariff Commission%
&he Co(rt of .""ea#s re#ied ("on Section +9 of the S7. in r(#ing that the findings of
the &ariff Commission do not necessari#! constit(te a fina# decision% Section +9 detai#s
the "roced(re for the ado"tion of a safeg(ard meas(re, as $e## as the ste"s to be taken
in case there is a negative fina# determination% &he im"#ication of the Co(rt of .""ea#sE
ho#ding is that the D&I Secretar! ma! ado"t a definitive safeg(ard meas(re,
not$ithstanding a negative determination made b! the &ariff Commission%
Indo(bted#!, Section +9 "rescribes certain #imitations and restrictions before
genera# safeg(ard meas(res ma! be im"osed% @o$ever, )5, /o*) +u%&$/,%)$l
.,*).23)2o% o% )5, "TI S,3.,)$.y8* 0o4,. 2% )5$) .,*0,3) 2* 3o%)$2%,& 2%
S,3)2o% 5 o+ )5, SMA)5$) )5,., *5oul& +2.*) 1, $ 0o*2)26, +2%$l
&,),./2%$)2o% o+ )5, T$.2++ Co//2**2o%$hich the Co(rt of .""ea#s c(rio(s#! a##
b(t ignored% Section 3 readsF
"ec. 4. Conditions for the Application of General Safeguard Measures. The
"ecretary $hall a##l a general $afeguar% "ea$ure u#on a #o$iti&e final
%eter"ination of the *Tariff+ ,o""i$$ion that a product is being imported into the
country in increased 5uantities, !hether absolute or relative to the domestic
production, as to be a substantial cause of serious injury or threat thereof to the
domestic industry= ho!ever, in the case of non2agricultural products, the "ecretary
shall first establish that the application of such safeguard measures !ill be in the
public interest. /emphasis supplied3
&he "#ain meaning of Section 3 sho$s that it is the &ariff Commission that has the
"o$er to make a "ositive fina# determination% &his "o$er #odged in the &ariff
Commission, m(st be disting(ished from the "o$er to im"ose the genera# safeg(ard
meas(re $hich is "ro"er#! vested on the D&I Secretar!%
*11,
.## in a##, there are t$o condition "recedents that m(st be satisfied before the D&I
Secretar! ma! im"ose a genera# safeg(ard meas(re on gre! -ort#and cement% irst,
there m(st be a "ositive fina# determination b! the &ariff Commission that a "rod(ct is
being im"orted into the co(ntr! in increased ;(antities /$hether abso#(te or re#ative to
domestic "rod(ction0, as to be a s(bstantia# ca(se of serio(s in'(r! or threat to the
domestic ind(str!% Second, in the case of non5agric(#t(ra# "rod(cts the Secretar! m(st
estab#ish that the a""#ication of s(ch safeg(ard meas(res is in the "(b#ic interest%
*1B,
.s
So(thern Cross arg(es, Section 3 is ;(ite c#ear5c(t, and it is im"ossib#e to finag#e a
different conc#(sion even thro(gh overarching methods of stat(tor! constr(ction% &here
is no safer nor better sett#ed canon of inter"retation that $hen #ang(age is c#ear and
(nambig(o(s it m(st be he#d to mean $hat it "#ain#! e<"ressesF
*B6,
In the ;(otab#e $ords
of an i##(strio(s member of this Co(rt, th(sF
[I]f a statute is clear, plain and free from ambiguity, it must be given its literal
meaning and applied !ithout attempted interpretation. The verba legis or plain
meaning rule rests on the valid presumption that the !ords employed by the
legislature in a statute correctly e7press its intent or !ill and preclude the court from
construing it differently. The legislature is presumed to 8no! the meaning of the
!ords, to have used !ords advisedly, and to have e7pressed its intent by the use of
such !ords as are found in the statute.
*B+,
7oreover, R(#e 3 of the Im"#ementing R(#es and Reg(#ations of the S7.,
*B4,
$hich
inter"rets Section 3 of the #a$, #ike$ise re;(ires a "ositive fina# determination on the
"art of the &ariff Commission before the a""#ication of the genera# safeg(ard meas(re%
&he S7. estab#ishes a distinct a##ocation of f(nctions bet$een the &ariff
Commission and the D&I Secretar!% &he "#ain meaning of Section 3 sho$s that it is the
&ariff Commission that has the "o$er to make a "ositive fina# determination% &his
"o$er, $hich be#ongs to the &ariff Commission, m(st be disting(ished from the "o$er to
im"ose genera# safeg(ard meas(re "ro"er#! vested on the D&I Secretar!% &he
distinction is vita#, as a "ositive fina# determination c#ear#! antecedes, as a condition
"recedent, the im"osition of a genera# safeg(ard meas(re% .t the same time, a "ositive
fina# determination does not necessari#! res(#t in the im"osition of a genera# safeg(ard
meas(re% Inder Section 3, not$ithstanding the "ositive fina# determination of the &ariff
Commission, the D&I Secretar! is tasked to decide $hether or not that the a""#ication of
the safeg(ard meas(res is in the "(b#ic interest%
It is a#so c#ear from Section 3 of the S7. that the "ositive fina# determination to be
(ndertaken b! the &ariff Commission does not entai# a mere gathering of statistica# data%
In order to arrive at s(ch determination, it has to estab#ish ca(sa# #inkages from the
statistics that it com"i#es and eva#(atesF after finding there is an im"ortation in increased
;(antities of the "rod(ct in ;(estion, that s(ch im"ortation is a s(bstantia# ca(se of
serio(s threat or in'(r! to the domestic ind(str!%
&he Co(rt of .""ea#s re#ies heavi#! on the #egis#ative record of a congressiona#
debate d(ring de#iberations on the S7. to assert a "(r"orted #egis#ative intent that the
findings of the &ariff Commission do not bind the D&I Secretar!%
*B9,
Het as e<"#ained
ear#ier, the "#ain meaning of Section 3 em"hasi)es that on#! if the &ariff Commission
renders a "ositive determination co(#d the D&I Secretar! im"ose a safeg(ard
meas(re% Resort to the congressiona# records to ascertain #egis#ative intent is not
$arranted if a stat(te is c#ear, "#ain and free from ambig(it!% &he #egis#at(re is "res(med
to kno$ the meaning of the $ords, to have (sed $ords advised#!, and to have
e<"ressed its intent b! the (se of s(ch $ords as are fo(nd in the stat(te%
*B:,
Indeed, the #egis#ative record, if at a## to be avai#ed of, sho(#d be a""roached $ith
e<treme ca(tion, as #egis#ative debates and "roceedings are "o$er#ess to var! the
terms of the stat(te $hen the meaning is c#ear%
*B3,
O(r ho#ding in Ci&i" ,iberties $nion &.
14ecuti&e )ecretary
*B>,
on the resort to de#iberations of the constit(tiona# convention to
inter"ret the Constit(tion is #ike$ise a""ro"riate in ascertaining stat(tor! intentF
<hile it is permissible in this jurisdiction to consult the debates and proceedings of
the constitutional convention in order to arrive at the reason and purpose of the
resulting Constitution, resort thereto may be had only !hen other guides fail as said
proceedings are po!erless to vary the terms of the Constitution !hen the meaning is
clear. Debates in the constitutional convention >are of value as sho!ing the vie!s of
the individual members, and as indicating the reasons for their votes, but they give us
no light as to the vie!s of the large majority !ho did not tal8 777. <e thin8 it safer to
construe the constitution from !hat appears upon its face.?
*B2,
7oreover, it is eas! to se#ective#! cite "assages, sometimes o(t of their "ro"er
conte<t, in order to assert a mis#eading inter"retation% &he effect can be dangero(s%
7inorit! or so#itar! vie$s, anecdota# r(minations, or even the occasiona# cr(de
$itticisms, ma! im"ro"er#! ac;(ire the mant#e of #egis#ative intent b! the so#e virt(e of
their "(b#ication in the a(thoritative congressiona# record% @ence, resort to #egis#ative
de#iberations is a##o$ab#e $hen the stat(te is crafted in s(ch a manner as to #eave room
for do(bt on the rea# intent of the #egis#at(re%
Section 3 "#ain#! evinces #egis#ative intent to restrict the D&I Secretar!Es "o$er to
im"ose a genera# safeg(ard meas(re b! "reconditioning s(ch im"osition on a "ositive
determination b! the &ariff Commission% S(ch #egis#ative intent sho(#d be given f(## force
and effect, as the e<ec(tive "o$er to im"ose definitive safeg(ard meas(res is b(t a
de#egated "o$erthe "o$er of ta<ation, b! nat(re and b! command of the f(ndamenta#
#a$, being a "reserve of the #egis#at(re%
*B1,
Section 41/40, .rtic#e VI of the +B12
Constit(tion confirms the de#egation of #egis#ative "o$er, !et ens(res that the
"rerogative of Congress to im"ose #imitations and restrictions on the e<ec(tive e<ercise
of this "o$erF
The Congress may, by la!, authori@e the President to fi7 !ithin specified limits, and
subject to such limitations and restrictions as it may impose, tariff rates, import and
e7port 5uotas, tonnage and !harfage dues, and other duties or imposts !ithin the
frame!or8 of the national development program of the 6overnment.
*BB,
&he safeg(ard meas(res $hich the D&I Secretar! ma! im"ose (nder the S7. ma!
take the fo##o$ing variations, to $itF /a0 an increase in, or im"osition of an! d(t! on the
im"orted "rod(ctC /b0 a decrease in or the im"osition of a tariff5rate ;(ota on the
"rod(ctC /c0 a modification or im"osition of an! ;(antitative restriction on the im"ortation
of the "rod(ct into the -hi#i""inesC /d0 one or more a""ro"riate ad'(stment meas(res,
inc#(ding the "rovision of trade ad'(stment assistanceC and /e0 an! combination of the
above5described actions% E<ce"t for the "rovision of trade ad'(stment assistance, the
meas(res en(merated b! the S7. are essentia##! im"osts, $hich "recise#! are the
s(b'ect of de#egation (nder Section 41/40, .rtic#e VI of the +B12 Constit(tion%
*+66,
&his de#egation of the ta<ation "o$er b! the #egis#ative to the e<ec(tive is
a(thori)ed b! the Constit(tion itse#f%
*+6+,
.t the same time, the Constit(tion a#so grants the
de#egating a(thorit! /Congress0 the right to im"ose restrictions and #imitations on the
ta<ation "o$er de#egated to the -resident%
*+64,
&he restrictions and #imitations im"osed b!
Congress take on the mant#e of a constit(tiona# command, $hich the e<ec(tive branch
is ob#iged to observe%
&he S7. em"o$ered the D&I Secretar!, as a"ter ego of the -resident,
*+69,
to im"ose
definitive genera# safeg(ard meas(res, $hich basica##! are tariff im"osts of the t!"e
s"oken of in the Constit(tion% @o$ever, the #a$ did not grant him f(##, (ninhibited
discretion to im"ose s(ch meas(res% &he D&I Secretar! a(thorit! is derived from the
S7.C it does not f#o$ from an! inherent e<ec(tive "o$er% &h(s, the #imitations im"osed
b! Section 3 are abso#(te, $arranted as the! are b! a constit(tiona# fiat%
*+6:,
-hi#cemcor cites o(r +B+4 r(#ing in ,amb &. Phipps
*+63,
to assert that the D&I
Secretar!, having the fina# decision on the safeg(ard meas(re, has the "o$er to
eva#(ate the findings of the &ariff Commission and make an inde"endent '(dgment
thereon% Given the constit(tiona# and stat(tor! #imitations governing the "resent case,
the citation is mis"#aced% ,amb "ertained to the discretion of the Ins(#ar .(ditor of the
-hi#i""ine Is#ands, $hom, as the Co(rt recogni)ed, *t,he stat(tes of the Inited States
re;(ire*d, <<< to e<ercise his '(dgment ("on the #ega#it! <<< *of, "rovisions of #a$ and
reso#(tions of Congress "roviding for the "a!ment of mone!, the means of "roc(ring
testimon! ("on $hich he ma! act%
*+6>,
&h(s in ,amb, $hi#e the Co(rt recogni)ed the $ide #atit(de of discretion that ma!
have been vested on the Ins(#ar .(ditor, it a#so recogni)ed that s(ch #atit(de f#o$ed
from, and is conse;(ent#! #imited b!, stat(tor! grant% @o$ever, in this case, the
"rovision of the Constit(tion in "oint e<"ress#! recogni)es the a(thorit! of Congress to
"rescribe #imitations in the case of tariffs, e<"ortDim"ort ;(otas and other s(ch
safeg(ard meas(res% &h(s, the broad discretion granted to the Ins(#ar .(ditor of the
-hi#i""ine Is#ands cannot be ana#ogo(s to the discretion of the D&I Secretar! $hich is
circ(mscribed b! Section 3 of the S7.%
or that matter, Cari5o &. Commissioner on +uman Rights,
*+62,
#ike$ise cited b!
-hi#cemcor, is a#so ina""#icab#e o$ing to the different stat(tor! regimes "revai#ing over
that case and the "resent "etition% In Cari5o, the Co(rt r(#ed that the constit(tiona#
"o$er of the Commission on @(man Rights /C@R0 to investigate h(man rightsE
vio#ations did not e<tend to ad'(dicating c#aims on the merits%
*+61,
-hi#cemcor c#aims that
the f(nctions of the &ariff Commission being on#! investigator!, it co(#d neither decide
nor ad'(dicate%
*+6B,
&he a""#icab#e #a$ governing the iss(e in Cari5o is Section +1, .rtic#e GIII of the
Constit(tion, $hich de#ineates the "o$ers and f(nctions of the C@R% &he "rovision does
not vest on the C@R the "o$er to ad'(dicate cases, b(t on#! to investigate a## forms of
h(man rights vio#ations%
*++6,
Het, $itho(t modif!ing the thoro(gh dis;(isition of the Co(rt
in Cari5o on the genera# #imitations on the investigator! "o$er, the "recedent is
ina""#icab#e beca(se of the difference in the invo#ved stat(tor! frame$orks% &he
Constit(tion does not re"ose binding effect on the res(#ts of the C@REs investigation%
*+++,
On the other hand, thro(gh Section 3 of the S7. and (nder the a(thorit! of Section
41/40, .rtic#e VI of the Constit(tion, Congress did intend to bind the D&I Secretar! to the
determination made b! the &ariff Commission%
*++4,
It is of no conse;(ence that s(ch
determination res(#ts from the e<ercise of investigator! "o$ers b! the &ariff Commission
since Congress is $e## $ithin its constit(tiona# mandate to #imit the a(thorit! of the D&I
Secretar! to im"ose safeg(ard meas(res in the manner that it sees fit%
&he Co(rt of .""ea#s and -hi#cemcor a#so re#! on Section +9 of the S7. and R(#e
+9 of the S7.Es Im"#ementing R(#es in s(""ort of the vie$ that the D&I Secretar! ma!
decide inde"endent#! of the determination made b! the &ariff Commission% .dmitted#!,
there are certain infe#icities in the #ang(age of Section +9 and R(#e +9% A(t re#iance
sho(#d not be "#aced on the te<t(a# im"recisions% Rather, Section +9 and R(#e +9 m(st
be vie$ed in #ight of the f(ndamenta# "rescri"tion im"osed b! Section 3%
*++9,
Section +9 of the S7. #a!s do$n the "roced(re to be fo##o$ed after the &ariff
Commission renders its re"ort% &he "rovision reads in f(##F
",C. #$. Adoption of Definitive Measures. A Bpon its positive determination, the
Commission shall recommend to the "ecretary an appropriate definitive measure, in
the form of)
/a0 .n increase in, or im"osition of, an! d(t! on the im"orted "rod(ctC
/b0 . decrease in or the im"osition of a tariff5rate ;(ota /7.V0 on the "rod(ctC
/c0 . modification or im"osition of an! ;(antitative restriction on the im"ortation of
the "rod(ct into the -hi#i""inesC
/d0 One or more a""ro"riate ad'(stment meas(res, inc#(ding the "rovision of trade
ad'(stment assistanceC
/e0 .n! combination of actions described in s(b"aragra"hs /a0 to /d0%
The Commission may also recommend other actions, including the initiation of
international negotiations to address the underlying cause of the increase of imports of
the product, to alleviate the injury or threat thereof to the domestic industry, and to
facilitate positive adjustment to import competition.
The general safeguard measure shall be limited to the e7tent of redressing or
preventing the injury and to facilitate adjustment by the domestic industry from the
adverse effects directly attributed to the increased imports) rovided, however, That
!hen 5uantitative import restrictions are used, such measures shall not reduce the
5uantity of imports belo! the average imports for the three /$3 preceding
representative years, unless clear justification is given that a different level is
necessary to prevent or remedy a serious injury.
& general safeguard measure shall not be applied to a product originating from a
developing country if its share of total imports of the product is less than three percent
/$C3) rovided, however, That developing countries !ith less than three percent /$C3
share collectively account for not more than nine percent /9C3 of the total imports.
The decision imposing a general safeguard measure, the duration of !hich is more
than one /#3 year, shall be revie!ed at regular intervals for purposes of liberali@ing or
reducing its intensity. The industry benefiting from the application of a general
safeguard measure shall be re5uired to sho! positive adjustment !ithin the allo!able
period. & general safeguard measure shall be terminated !here the benefiting
industry fails to sho! any improvement, as may be determined by the "ecretary.
The "ecretary shall issue a !ritten instruction to the heads of the concerned
government agencies to implement the appropriate general safeguard measure as
determined by the "ecretary !ithin fifteen /#43 days from receipt of the report.
In the event of a negative final determination, or if the cash bond is in e7cess of the
definitive safeguard duty assessed, the "ecretary shall immediately issue, through the
"ecretary of Dinance, a !ritten instruction to the Commissioner of Customs,
authori@ing the return of the cash bond or the remainder thereof, as the case may be,
previously collected as provisional general safeguard measure !ithin ten /#(3 days
from the date a final decision has been made) rovided, That the government shall
not be liable for any interest on the amount to be returned. The "ecretary shall not
accept for consideration another petition from the same industry, !ith respect to the
same imports of the product under consideration !ithin one /#3 year after the date of
rendering such a decision.
<hen the definitive safeguard measure is in the form of a tariff increase, such increase
shall not be subject or limited to the ma7imum levels of tariff as set forth in "ection
E(#/a3 of the Tariff and Customs Code of the Philippines.
&o better com"rehend Section +9, note m(st be taken of the distinction bet$een the
investigator! and recommendator! f(nctions of the &ariff Commission (nder the S7.%
&he $ord determination, as (sed in the S7., "ertains to the fact(a# findings on
$hether there are increased im"orts into the co(ntr! of the "rod(ct (nder consideration,
and on $hether s(ch increased im"orts are a s(bstantia# ca(se of serio(s in'(r! or
threaten to s(bstantia##! ca(se serio(s in'(r! to the domestic ind(str!%
*++:,
&he S7.
e<"#icit#! a(thori)es the D&I Secretar! to make a "re#iminar! determination,
*++3,
and the
&ariff Commission to make the fina# determination%
*++>,
&he distinction is f(ndamenta#, as
these f(nctions are not interchangeab#e% &he &ariff Commission makes its determination
on#! after a forma# investigation "rocess, $ith s(ch investigation initiated on#! if there is
a "ositive "re#iminar! determination b! the D&I Secretar! (nder Section 2 of the S7.%
*++2,
On the other hand, the D&I Secretar! ma! im"ose definitive safeg(ard meas(re on#!
if there is a "ositive fina# determination made b! the &ariff Commission%
*++1,
In contrast, a recommendation is a s(ggested remedia# meas(re s(bmitted b! the
&ariff Commission (nder Section +9 after making a "ositive fina# determination in
accordance $ith Section 3% &he &ariff Commission is not em"o$ered to make a
recommendation absent a "ositive fina# determination on its "art%
*++B,
Inder Section +9,
the &ariff Commission is re;(ired to recommend to the *D&I, Secretar! an a""ro"riate
definitive meas(re%
*+46,
&he &ariff Commission ma! a#so recommend other actions,
inc#(ding the initiation of internationa# negotiations to address the (nder#!ing ca(se of
the increase of im"orts of the "rod(cts, to a##eviate the in'(r! or threat thereof to the
domestic ind(str! and to faci#itate "ositive ad'(stment to im"ort com"etition%
*+4+,
&he recommendations of the &ariff Commission, as rendered (nder Section +9, are
not ob#igator! on the D&I Secretar!% Nothing in the S7. mandates the D&I Secretar! to
ado"t the recommendations made b! the &ariff Commission% In fact, the S7. re;(ires
that the D&I Secretar! estab#ish that the a""#ication of s(ch safeg(ard meas(res is in
the "(b#ic interest, not$ithstanding the &ariff CommissionEs recommendation on the
a""ro"riate safeg(ard meas(re based on its "ositive fina# determination%
*+44,
&he non5
binding force of the &ariff CommissionEs recommendations is congr(ent $ith the
command of Section 41/40, .rtic#e VI of the +B12 Constit(tion that on#! the -resident
ma! be em"o$ered b! the Congress to im"ose a""ro"riate tariff rates, im"ortDe<"ort
;(otas and other simi#ar meas(res%
*+49,
It is the D&I Secretar!, asa"ter ego of the
-resident,

$ho (nder the S7. ma! im"ose s(ch safeg(ard meas(res s(b'ect to the
#imitations im"osed therein% . contrar! conc#(sion $o(#d in essence (nd(#! arrogate to
the &ariff Commission the e<ec(tive "o$er to im"ose the a""ro"riate tariff meas(res%
&hat is $h! the S7. em"o$ers the D&I Secretar! to ado"t safeg(ard meas(res other
than those recommended b! the &ariff Commission%
In#ike the recommendations of the &ariff Commission, its determination has a
different effect on the D&I Secretar!% On#! on the basis of a "ositive fina# determination
made b! the &ariff Commission (nder Section 3 can the D&I Secretar! im"ose a genera#
safeg(ard meas(re% C#ear#!, then the D&I Secretar! is 1ou%& 1y
)5, &,),./2%$)2o% made b! the &ariff Commission%
Some conf(sion ma! arise beca(se the si<th "aragra"h of Section +9
*+4:,
(ses the
variant $ord determined in a different conte<t, as it contem"#ates the a""ro"riate
genera# safeg(ard meas(re as determined b! the Secretar! $ithin fifteen /+30 da!s from
recei"t of the re"ort% L(ite "#ain#!, the $ord determined in this conte<t "ertains to the
D&I Secretar!Es "o$er of choice of the a""ro"riate safeg(ard meas(re, as o""osed to
the &ariff CommissionEs "o$er to determine the e<istence of conditions necessar! for
the im"osition of an! safeg(ard meas(re% In re#ation to Section 3, s(ch choice a#so
re#ates to the mandate of the D&I Secretar! to estab#ish that the a""#ication of
safeg(ard meas(res is in the "(b#ic interest, a#so $ithin the fifteen /+30 da! "eriod%
Nothing in Section +9 contradicts the instr(ction in Section 3 that the D&I Secretar! is
a##o$ed to im"ose the genera# safeg(ard meas(res on#! if there is a "ositive
determination made b! the &ariff Commission%
Infort(nate#!, R(#e +9%4 of the Im"#ementing R(#es of the S7. is ca"tioned ina#
Determination b! the Secretar!% &he assai#ed Decisionand -hi#cemcor #atch on this
"hraseo#og! to im"#! that the fact(a# determination rendered b! the &ariff Commission
(nder Section 3 ma! be amended or reversed b! the D&I Secretar!% Of co(rse,
im"#ementing r(#es sho(#d conform, not c#ash, $ith the #a$ that the! seek to
im"#ement, for a reg(#ation $hich o"erates to create a r(#e o(t of harmon! $ith the
stat(te is a n(##it!%
*+43,
Het im"erfect draftsmanshi" aside, nothing in R(#e +9%4 im"#ies that
the D&I Secretar! can set aside the determination made b! the &ariff Commission (nder
the aegis of Section 3% &his can be seen b! e<amining the s"ecific "rovisions of R(#e
+9%4, th(sF
%B+, #$.1. Dinal Determination by the "ecretary
%B+, #$.1.a. <ithin fifteen /#43 calendar days from receipt of the %eport of the
Commission, the "ecretary shall ma8e a decision, ta8ing into consideration the
measures recommended by the Commission.
%B+, #$.1.b. If the determination is affirmative, the "ecretary shall issue, !ithin t!o
/13 calendar days after ma8ing his decision, a !ritten instruction to the heads of the
concerned government agencies to immediately implement the appropriate general
safeguard measure as determined by him. Provided, ho!ever, that in the case of non2
agricultural products, the "ecretary shall first establish that the imposition of the
safeguard measure !ill be in the public interest.
%B+, #$.1.c. <ithin t!o /13 calendar days after ma8ing his decision, the "ecretary
shall also order its publication in t!o /13 ne!spapers of general circulation. *e shall
also furnish a copy of his .rder to the petitioner and other interested parties, !hether
affirmative or negative. /,mphasis supplied.3
7oreover, the D&I Secretar! does not have the "o$er to revie$ the findings of the
&ariff Commission for it is not s(bordinate to the De"artment of &rade and Ind(str!
/D&I0% It fa##s (nder the s("ervision, not of the D&I nor of the De"artment of inance
/as mistaken#! asserted b! So(thern Cross0,
*+4>,
b(t of the N$)2o%$l E3o%o/23
",6,lo0/,%) Au)5o.2)y, $% 2%&,0,%&,%) 0l$%%2%- $-,%3y o+ )5, -o6,.%/,%) o+
3o9,:u$l .$%7 $* )5, "TI.
*+42,
.s the s("ervision and contro# of a De"artment Secretar!
is #imited to the b(rea(s, offices, and agencies (nder him,
*+41,
the D&I Secretar! genera##!
cannot e<ercise revie$ a(thorit! over actions of the &ariff Commission% Neither does the
S7. s"ecifica##! a(thori)e the D&I Secretar! to a#ter, amend or modif! in an! $a! the
determination made b! the &ariff Commission% &he most that the D&I Secretar! co(#d do
to e<"ress dis"#eas(re over the &ariff CommissionEs actions is to ignore its
recommendation, b(t not its determination%
&he $ord determination as (sed in R(#e +9%4 of the Im"#ementing R(#es is
dissonant $ith the same $ord as em"#o!ed in the S7., $hich in the #atter case is
(ndeviating#! in reference to the determination made b! the &ariff Commission% Ae!ond
the res(#ting conf(sion, ho$ever, the divergent (se in R(#e +9%4 is e<"#icab#e as the
R(#e te<t(a##! "ertains to the "o$er of the D&I Secretar! to revie$ the
recommendations of the &ariff Commission, not the #atterEs determination% Indeed, an
e<amination of the s"ecific "rovisions sho$ that there is no rea# conf#ict to reconci#e%
R(#e +9%4 res"ects the #ogica# order im"osed b! the S7.% &he R(#e does not remove
the essentia# re;(irement (nder Section 3 that a "ositive fina# determination be made b!
the &ariff Commission before a definitive safeg(ard meas(re ma! be im"osed b! the
D&I Secretar!%
&he assai#ed Decision characteri)es the findings of the &ariff Commission as mere#!
recommendator! and "oints to the D&I Secretar! as the a(thorit! $ho renders the fina#
decision%
*+4B,
.t the same time, -hi#cemcor asserts that the &ariff CommissionEs f(nctions
are mere#! investigator!, and as s(ch do not inc#(de the "o$er to decide or ad'(dicate%
&hese contentions, vie$ed in the conte<t of the f(ndamenta# re;(isite set forth b!
Section 3, are (ntenab#e% &he! r(n co(nter to the stat(tor! "rescri"tion that a "ositive
fina# determination made b! the &ariff Commission sho(#d first be obtained before the
definitive safeg(ard meas(res ma! be #aid do$n%
8as it anoma#o(s for Congress to have "rovided for a s!stem $hereb! the &ariff
Commission ma! "rec#(de the D&I, an office of higher rank, from im"osing a safeg(ard
meas(reK Of co(rse, this Co(rt does not in;(ire into the $isdom of the #egis#at(re b(t
on#! charts the bo(ndaries of "o$ers and f(nctions set in its enactments% A(t then, it is
not diffic(#t to see the interna# #ogic of this stat(tor! frame$ork%
or one, as ear#ier stated, the D&I cannot e<ercise revie$ "o$ers over the &ariff
Commission $hich is not its s(bordinate office%
7oreover, the mechanism estab#ished b! Congress estab#ishes a meas(re of check
and ba#ance invo#ving t$o different governmenta# agencies $ith dis"arate
s"ecia#i)ations% &he matter of safeg(ard meas(res is of s(ch nationa# im"ortance that a
decision either to im"ose or not to im"ose then co(#d have r(ino(s effects on
com"anies doing b(siness in the -hi#i""ines% &h(s, it is idea# to "(t in "#ace a s!stem
$hich affords a## d(e de#iberation and ca##s to fore vario(s governmenta# agencies
e<ercising their "artic(#ar s"ecia#i)ations%
ina##!, if this arrangement dra$n (" b! Congress makes it diffic(#t to obtain a
genera# safeg(ard meas(re, it is beca(se s(ch safeg(ard meas(re is the e<ce"tion,
rather than the r(#e% &he -hi#i""ines is ob#iged to observe its ob#igations (nder the
G.&&, (nder $hose frame$ork trade #ibera#i)ation, not "rotectionism, is #aid do$n%
Veri#!, the G.&& act(a##! "rescribes conditions before a member5co(ntr! ma! im"ose a
safeg(ard meas(re% &he "ertinent "ortion of the G.&& .greement on Safeg(ards readsF
1. & -ember may only apply a safeguard measure to a product only if that
member has determined, pursuant to the provisions set out belo!, that such product is
being imported into its territory in such increased 5uantities, absolute or relative to
domestic production, and under such conditions as to cause or threaten to cause
serious injury to the domestic industry that produces li8e or directly competitive
products.
*+96,
$. /a3 & -ember may apply a safeguard measure only follo!ing an investigation by
the competent authorities of that -ember pursuant to procedures previously
established and made public in consonance !ith &rticle F of the 6&TT #99E. This
investigation shall include reasonable public notice to all interested parties and public
hearings or other appropriate means in !hich importers, e7porters and other interested
parties could present evidence and their vie!s, including the opportunity to respond to
the presentations of other parties and to submit their vie!s, inter alia, as to !hether or
not the application of a safeguard measure !ould be in the public interest. The
competent authorities shall publish a report setting forth their findings and reasoned
conclusions reached on all pertinent issues of fact and la!.
*+9+,
&he S7. $as designed not to contradict the G.&&, b(t to com"#ement it% &he t$o
re;(isites #aid do$n in Section 3 for a "ositive fina# determination are the same
conditions "rovided (nder the G.&& .greement on Safeg(ards for the a""#ication of
safeg(ard meas(res b! a member co(ntr!% 7oreover, the investigator! "roced(re #aid
do$n b! the S7. conforms to the "roced(re re;(ired b! the G.&& .greement on
Safeg(ards% Congress has chosen the &ariff Commission as the com"etent a(thorit! to
cond(ct s(ch investigation% So(thern Cross stresses that a""#!ing the "rovision of the
G.&& .greement on Safeg(ards, the &ariff Commission is c#ear#! em"o$ered to arrive
at binding conc#(sions%
*+94,
8e agreeF binding on the D&I Secretar! is the &ariff
CommissionEs determinations on $hether a "rod(ct is im"orted in increased ;(antities,
abso#(te or re#ative to domestic "rod(ction and $hether an! s(ch increase is a
s(bstantia# ca(se of serio(s in'(r! or threat thereof to the domestic ind(str!%
*+99,
Satisfied as $e are $ith the "ro"er stat(tor! "aradigm $ithin $hich the S7. sho(#d
be ana#!)ed, the f#a$s in the reasoning of the Co(rt of .""ea#s and in the arg(ments of
the res"ondents become a""arent% &o better (nderstand the d!namics of the "roced(re
set (" b! the #a$ #eading to the im"osition of definitive safeg(ard meas(res, a brief
ste"5b!5ste" reco(nt thereof is in order%
+% .fter the initiation of an action invo#ving a genera# safeg(ard meas(re,
*+9:,
the D&I
Secretar! makes a "re#iminar! determination $hether the increased im"orts of the
"rod(ct (nder consideration s(bstantia##! ca(se or threaten to s(bstantia##! ca(se
serio(s in'(r! to the domestic ind(str!,
*+93,
and $hether the im"osition of a "rovisiona#
meas(re is $arranted (nder Section 1 of the S7.%
*+9>,
If the "re#iminar! determination is
negative, it is im"#ied that no f(rther action $i## be taken on the a""#ication%
4% 8hen his "re#iminar! determination is "ositive, the Secretar! immediate#!
transmits the records covering the a""#ication to the &ariff Commission for immediate
forma# investigation%
*+92,
9% &he &ariff Commission cond(cts its forma# investigation, ke!ed to$ards making a
fina# determination% In the "rocess, it ho#ds "(b#ic hearings, "roviding interested "arties
the o""ort(nit! to "resent evidence or other$ise be heard%
*+91,
&o re"eat, Section 3
en(merates $hat the &ariff Commission is tasked to determineF /a0 $hether a "rod(ct is
being im"orted into the co(ntr! in increased ;(antities, irres"ective of $hether the
"rod(ct is abso#(te or re#ative to the domestic "rod(ctionC and /b0 $hether the
im"ortation in increased ;(antities is s(ch that it ca(ses serio(s in'(r! or threat to the
domestic ind(str!%
*+9B,
&he findings of the &ariff Commission as to these matters constit(te
the fina# determination, $hich ma! be either "ositive or negative%
:% Inder Section +9 of the S7., if the &ariff Commission makes a "ositive
determination, the &ariff Commission recommends to the *D&I, Secretar! an
a""ro"riate definitive meas(re% &he &ariff Commission ma! a#so recommend other
actions, inc#(ding the initiation of internationa# negotiations to address the (nder#!ing
ca(se of the increase of im"orts of the "rod(cts, to a##eviate the in'(r! or threat thereof
to the domestic ind(str!, and to faci#itate "ositive ad'(stment to im"ort com"etition%
*+:6,
3% If the &ariff Commission makes a "ositive fina# determination, the D&I Secretar!
is then to decide, $ithin fifteen /+30 da!s from recei"t of the re"ort, as to $hat
a""ro"riate safeg(ard meas(res sho(#d he im"ose%
>% @o$ever, if the &ariff Commission makes a negative fina# determination, the D&I
Secretar! cannot im"ose an! definitive safeg(ard meas(re% Inder Section +9, he is
instr(cted instead to ret(rn $hatever cash bond $as "aid b! the a""#icant ("on the
initiation of the action for safeg(ard meas(re%
The 1ffect of the Court3s Decision
&he Co(rt of .""ea#s erred in remanding the case back to the D&I Secretar!, $ith
the instr(ction that the D&I Secretar! ma! im"ose a genera# safeg(ard meas(re even if
there is no "ositive fina# determination from the &ariff Commission% 7ore cr(cia##!, the
Co(rt of .""ea#s co(#d not have ac;(ired '(risdiction over -hi#cemcorEs "etition for
certiorari in the first "#ace, as Section 4B of the S7. "ro"er#! vests '(risdiction on the
C&.% Conse;(ent#!, the assai#ed Decision is an abso#(te n(##it!, and $e dec#are it as
s(ch%
8hat is the effect of the n(##it! of the assai#ed Decision on the 3 =(ne
4669 Decision of the D&I Secretar! im"osing the genera# safeg(ard meas(reK 8e have
recogni)ed that an! initia# '(dicia# revie$ of a D&I r(#ing in connection $ith the
im"osition of a safeg(ard meas(re be#ongs to the C&.% .t the same time, the Co(rt a#so
recogni)es the f(ndamenta# "rinci"#e that a n(## and void '(dgment cannot "rod(ce an!
#ega# effect% &here is s(fficient ca(se to estab#ish that the 3 =(ne 4669 Decision of the
D&I Secretar! res(#ted from the assai#ed Co(rt of .""ea#s Decision, even if the #atter
had not !et become fina#% Converse#!, it can be conc#(ded that it $as beca(se of the
"(tative im"rimat(r of the Co(rt of .""ea#sEDecision that the D&I Secretar! iss(ed his
r(#ing im"osing the safeg(ard meas(re% Since the 3 =(ne 4669 Decision derives its
#ega# effect from the void Decision of the Co(rt of .""ea#s, this r(#ing of the D&I
Secretar! is conse;(ent#! void% The spring cannot rise higher than the source%
&he D&I Secretar! himse#f ackno$#edged that he dre$ stim(#ating force from the
a""e##ate co(rtEs Decision for in his o$n 3 =(ne 4669Decision, he dec#aredF
Drom the aforementioned ruling, the C& has remanded the case to the DTI "ecretary
for a final decision. Thus, there is no legal impediment for the "ecretary to decide on
the application.
*+:+,
&he inesca"ab#e conc#(sion is that the D&I Secretar! needed the
assai#ed Decision of the Co(rt of .""ea#s to '(stif! his rendering a secondDecision. @e
e<"#icit#! invoked the Co(rt of .""ea#sE Decision as basis for rendering his 3 =(ne
4669 r(#ing, and im"#icit#! recogni)ed that $itho(t s(ch Decision he $o(#d not have the
a(thorit! to revoke his "revio(s r(#ing and render a ne$, obverse r(#ing%
It is c#ear then that the 43 =(ne 4669 Decision of the D&I Secretar! is a "rod(ct of
the void Decision, it being an attem"t to carr! o(t s(ch n(## '(dgment% &here is therefore
no choice b(t to dec#are it void as $e##, #est $e sanction the "erverse e<istence of a fr(it
from a non5e<istent tree% It does not even matter $hat the dis"osition of the 43 =(ne
4669 Decision $as, its n(##it! $o(#d be $arranted even if the D&I Secretar! chose to
("ho#d his ear#ier r(#ing den!ing the a""#ication for safeg(ard meas(res%
It is a#so an (nfort(nate s"ectac#e to beho#d the D&I Secretar!, seeking to enforce a
'(dicia# decision $hich is not !et fina# and act(a##! "ending revie$ on a""ea#% @ad it
been a '(dge $ho attem"ted to enforce a decision that is not !et fina# and e<ec(tor!, he
or she $o(#d have readi#! been s(b'ected to sanction b! this Co(rt% &he D&I Secretar!
ma! be be!ond the ambit of administrative revie$ b! this Co(rt, b(t $e are ca"acitated
to a##ocate the bo(ndaries set b! the #a$ of the #and and to e<act fea#t! to the #ega#
order, es"ecia##! from the instr(menta#ities and officia#s of government%
;HEREORE, the "etition is GR.N&ED% &he assai#ed Decision of the Co(rt of
.""ea#s is DEC?.RED NI?? .ND VOID and SE& .SIDE% &he Decision of the D&I
Secretar! dated 43 =(ne 4669 is a#so DEC?.RED NI?? .ND VOID and SE&
.SIDE% No Costs%
SO OR"ERE".