[ G.R. No. 88637. September 07, 1989 ] 258 Phil. 167; 87 OG No. 5, 745 (February 4, 1991)
EN BANC
[ G.R. No. 88637. September 07, 1989 ]
CONGRESSMAN ENRIQUE T. GARCIA, SECOND DISTRICT OF BATAAN, PETITIONER, VS. THE BOARD OF INVESTMENTS, THE DEPARTMENT OF TRADE AND INDUSTRY, BATAAN PETROCHEMICAL CORPORATION AND PILIPINAS SHELL CORPORATION, RESPONDENTS. D E C I S I O N
GRIÑO-AQUINO, J.:
In this petition for certiorari and prohibition with a prayer for preliminary injunction, the petitioner, as congressman for the second district of Bataan, assails the approval by the Board of Investments (BOI) and the Department of Trade and Industry (DTI) of the amended application for registration of the Bataan Petrochemical Corporation, which seeks to transfer the site of its petrochemical complex from Bataan, the original situs of choice, to the province of Batangas.
Since the case presents purely legal issues, and the subject of the controversy vitally affects the economic interests of the country which should not pend for too long, the Court, after hearing the parties’ extensive oral and written arguments on the petitioner’s application for preliminary injunction, believes that it may now decide the merits of the petition as well.
Proclamation No. 361 dated March 6, 1968, as amended by Proclamation No. 630 dated November 29, 1969, reserved a 388-hectare parcel of land of the public domain located at Lamao, Limay, Bataan for “industrial estate purposes,” in line with the State policy of promoting and rationalizing the industrialization of the Philippines. P.D. No. 1803, dated January 16, 1981, enlarged the area by 188 hectares, making it a total of 576 hectares, reserved for the Petrochemical Industrial Zone under the administration, management and ownership of the Philippine National Oil Company (PNOC).
The Bataan Refining Corporation (BRC for short) is a wholly government-owned corporation, located in Bataan. It produces 60% of the national output of naphtha.
Taiwanese investors in a petrochemical project formed the Bataan Petrochemical Corporation (BPC) and applied with BOI for registration as a new domestic producer of petrochemicals. Its application specified Bataan as the plant site. One of the terms and conditions for the registration of the project was the use of “naphtha cracker” and “naphtha” as feedstock or fuel for its petrochemical plant. The petrochemical project was to be a joint venture with PNOC. BPC was issued a Certificate of Registration on February 24, 1988 by BOI.
BPC was accorded pioneer status and was given fiscal and other incentives by BOI, like, (1) exemptions from tax on raw materials, (2) repatriation of the entire proceeds of liquidation of investments in currency originally made and at the exchange rate obtaining at the time of repatriation; and (3) remittance of earnings on investments. As additional incentive, the House of Representatives approved a bill, introduced by the petitioner, Congressman Garcia, eliminating the 48% ad valorem tax on naphtha if and when it would be used as raw material in the petrochemical plant. The chairman of BPC, Tomas T. N. Hsi, profusely welcomed the bill, stating:
“This project is aiming at a boon not only to the province of Bataan, but to the country of the Philippines in general. It will support the development of the Philippine petrochemical industry by providing an ability to compete in the world market for manufactured petrochemical derivatives such as polyethylene and polypropylene products . . .” (p. 7, Rollo.)
However, in February 1989, A. T. Chong, chairman of USI Far East Corporation, the major investor in BPC, personally delivered to Trade Secretary Jose Concepcion a letter dated January 25, 1989, advising him of BPC’s desire to amend the original registration certificate of its project by changing the job site from Limay, Bataan, to Batangas (Annex F, p. 51, Rollo). News of the shift was published by one of the major Philippine dailies which disclosed that the cause of the relocation of the project is the insurgency and unstable labor situation in Bataan. The presence in Batangas of a huge liquefied petroleum gas (LPG) depot owned by the Pilipinas Shell Corporation was another consideration.
The congressmen of Bataan vigorously opposed the transfer of the proposed petrochemical plant to Batangas. At a conference of the Taiwanese investors with President Aquino and her Secretary of Defense and Chief of Staff of the Army, the President expressed her preference that the Bataan petrochemical plant be established in Bataan.
However, despite speeches in the Senate and in the House opposing the transfer of the project to Batangas, BPC filed in the BOI on April 11, 1989 a request for “approval of an amendment of its investment application x x x for establishing a petrochemical complex in the Philippines.” (Annex F, p. 51, Rollo.) The amendments consisted of: (1) increasing the investment amount from US$220 million to US$320; (2) increasing the production capacity of its naphtha cracker, polyethylene plant and polypropylene plant; (3) changing the feedstock from naphtha only to “naphtha and/or liquefied petroleum gas;” (4) transferring the job site from Limay, Bataan to Batangas (Annex F, p. 51, Rollo).
Senator Ernesto Maceda, Antonio Francisco, vice-president and general manager of the Bataan Refining Corporation, Congressman Felicito C. Payumo of the 1st District of Bataan, herein petitioner Congressman Enrique Garcia of the Second District, the provincial Governor of Bataan, the League of Mayors and various civic and professional organizations all opposed the transfer of the project to Batangas (pp. 10, 11, 12, Rollo; Annex Q, p. 81, Rollo).
On May 4, 1989, petitioner addressed a letter to Secretary Concepcion of the Department of Trade and Industry (DTI), through BOI vice-chairman and manager Tomas Alcantara, requesting for “a copy of the amendment reportedly submitted by Taiwanese investors, to their original application for the installation of the Bataan Petrochemical Plant, as well as the original application itself together with any and all attachments to said original application and the amendment thereto.” (Annex K, p. 70, Rollo.)
On May 21, 1989, BOI vice-chairman Alcantara informed petitioner that the Taiwanese investors declined to give their consent to the release of the documents requested (Annex O).
On May 25, 1989, the BOI approved the revision of the registration of BPC’s petrochemical project (Annex S, p. 84, Rollo).
On June 26, 1989, petitioner filed a petition for certiorari and prohibition in this Court, with a prayer for preliminary injunction, alleging that the BOI and DTI gravely abused their discretion:
(a) in not observing due process in approving without a hearing, the revisions in the registration of the BPC’s petrochemical project;
(b) in refusing to furnish the petitioner with copies of BPC’s application for registration and its supporting papers in violation of the Government’s policy of transparency;
(c) in approving the change in the site of BPC’s petrochemical plant from Bataan to Batangas in violation of PD Nos. 949 and 1803 which establishes Lamao, Limay, Bataan as the “petrochemical industrial zone;”
(d) in approving the change in feedstock from naphtha only, to naphtha and/or lpg; and
(e) in showing gross partiality for BPC.
This Court is not concerned with the economic, social, and political aspects of this case for it does not possess the necessary technology and scientific expertise to determine whether the transfer of the proposed BPC petrochemical complex from Bataan to Batangas and the change of fuel from naphtha only to “naphtha and/or LPG” will be best for the project and for our country. This Court is not about to delve into the economics and politics of this case. It is concerned simply with the alleged violation of due process and the alleged extra limitation of power and discretion on the part of the public respondents in approving the transfer of the project to Batangas without giving due notice and an opportunity to be heard to the vocal opponents of that move.
The Omnibus Investments Code of 1987 (Executive Order No. 226) of July 16, 1987 expressly declares it to be the policy of the State “to accelerate the sound development of the national economy x x x by encouraging private Filipino and foreign investments in industry, agriculture, forestry, mining, tourism and other sectors of the economy.” For this purpose, the Code mandates the holding of “consultations with affected communities whenever necessary” (Art. 2, subpar. 2 of the Omnibus Investments Code). Correspondingly, Art. 33 provides that: “Whenever necessary, the Board, through the People’s Economic Councils, shall consult the communities affected on the acceptability of locating the registered enterprise within their community.”
The Code also requires the “publication of applications for registration,” hence, the payment of publication and other necessary fees x x x prior to the processing and approval of such applications” (Art. 7, subpar. 3, Omnibus Investments Code).
As provided by the law, the BPC’s application for registration as a “new export producer of ethylene, polyethylene and polypropylene” was published in the “Philippines Daily Inquirer” issue of December 21, 1987. The notice invited “any person with valid objections to or pertinent comments on the above-mentioned application x x x (to file) his/her comments/objections in writing with the BOI within one (1) week from the date of this publication” (Annex 1, public respondent’s Comment).
Since the BPC’s amended application (particularly the change of location from Bataan to Batangas) was in effect a new application, it should have been published so that whoever may have any objection to the transfer may be heard. The BOI’s failure to publish such notice and to hold a hearing on the amended application deprived the oppositors, like the petitioner, of due process and amounted to a grave abuse of discretion on the part of the BOI.
There is no merit in the public respondents’ contention that the petitioner has “no legal interest” in the matter of the transfer of the BPC petrochemical plant from the province of Bataan to the province of Batangas. The provision in the Investments Code requiring publication of the investor’s application for registration in the BOI is implicit recognition that the proposed investment or new industry is a matter of public concern on which the public has a right to be heard. And, when the BOI approved BPC’s application to establish its petrochemical plant in Limay, Bataan, the inhabitants of that province, particularly the affected community in Limay, and the petitioner herein as the duly elected representative of the Second District of Bataan acquired an interest in the project which they have a right to protect. Their interest in the establishment of the petrochemical plant in their midst is actual, real, and vital because it will affect not only their economic life but even the air they will breathe.
Hence, they have a right to be heard or “be consulted” on the proposal to transfer it to another site for the Investments Code does require that the “affected communities” should be consulted. While this Court may not require BOI to decide that controversy in a particular way, we may require the Board to comply with the law and its own rules and regulations prescribing such notice and hearing.
This Court in the cases of Tañada vs. Tuvera, 136 SCRA 27 and Legaspi vs. Civil Service Commission, 150 SCRA 530, has recognized a citizen’s interest and personality to procure the enforcement of a public duty and to bring an action to compel the performance of that duty. In this case, what the petitioner seeks is for the Board of Investments to hold a hearing where he may present evidence in support of his opposition to the BPC’s amended application for registration (which amounts to a new application) since one of the effects of the amendment is to change the site of its petrochemical plant from Bataan to Batangas.
The petitioner’s request for xerox copies of certain documents filed by BPC together with its original application, and its amended application for registration with BOI, may not be denied, as it is the constitutional right of a citizen to have access to information on matters of public concern under Article III, Section 7 of the 1987 Constitution. The confidentiality of the records on BPC’s applications is not absolute for Article 81 of the Omnibus Investments Code provides that they may be disclosed “upon the consent of the applicant, or on orders of a court of competent jurisdiction.” As a matter of fact, a xerox copy of BPC’s position paper dated April 10, 1989, in support of its request for the transfer of its petrochemical plant to Batangas, has been submitted to this Court as Annex A of its memorandum.
However, just as the confidentiality of an applicant’s records in the BOI is not absolute, neither is the petitioner’s right of access to them unlimited. The Constitution does not open every door to any and all information. “Under the Constitution, access to official records, papers, etc. is subject to limitations as may be provided by law (Art. III, Sec. 7, second sentence). The law may exempt certain types of information from public scrutiny” (Legaspi vs. Civil Service Commission, 150 SCRA 530). The trade secrets and confidential, commercial and financial information of the applicant BPC, and matters affecting national security are excluded from the privilege.
At the oral argument on the petitioner’s application for a preliminary injunction on July 4, 1989, the Court was informed that if the BOI will hold a hearing on the BPC’s amended application, the petitioner will be able to present his evidence in opposition to the transfer of the project to Batangas within a period of one week. After such hearing, the BOI shall render its decision which the petitioner may appeal to the President as provided in Article 36 of the Investments Code. Her decision will be final and unappealable.
WHEREFORE, the petition for certiorari is granted. The Board of Investments is ordered: (1) to publish the amended application for registration of the Bataan Petrochemical Corporation, (2) to allow the petitioner to have access to its records on the original and amended applications for registration, as a petrochemical manufacturer, of the respondent Bataan Petrochemical Corporation, excluding, however, privileged papers containing its trade secrets and other business and financial information, and (3) to set for hearing the petitioner’s opposition to the amended application in order that he may present at such hearing all the evidence in his possession in support of his opposition to the transfer of the site of the BPC petrochemical plant to Batangas province. The hearing shall not exceed a period of ten (10) days from the date fixed by the BOl, notice of which should be served by personal service to the petitioner through counsel, at least three (3) days in advance. The hearings may be held from day to day for a period of ten (10) days without postponements. The petition for a writ of prohibition or preliminary injunction is denied. No costs.
SO ORDERED.
Narvasa, Gutierrez, Jr., Cruz, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Medialdea, and Regalado, JJ., concur. Fernan, C.J., no part. Formerly Cebu counsel for Pilipinas Shell Corporation. Melencio-Herrera, J., please see attached dissent. Paras, J., no part. Son is w/ lawyer. Feliciano, J., n part. One of respondents represented by my former firm.