SEPARATE OPINION

TINGA, J.:

The Constitution was crafted by men and women of divergent backgrounds and varying ideologies. Understandably, the resultant document is accommodative of these distinct, at times competing philosophies. Untidy as any mlange would seem, our fundamental law nevertheless hearkens to the core democratic ethos over and above the obvious inconveniences it spawns.

However, when the task of judicial construction of the Constitution comes to fore, clarity is demanded from this Court. In turn, there is a need to balance and reconcile the diverse views that animate the provisions of the Constitution, so as to effectuate its true worth as an instrument of national unity and progress.

The variances and consequent challenges are vividly reflected in Article XII of the Constitution on National Patrimony, in a manner akin to Article II on Declaration of Principles and State Policies. Some of the provisions impress as protectionist, yet there is also an undisguised accommodation of liberal economic policies. Section 2, Article XII,¹ the provision key to this case, is one such Janus-faced creature. It seems to close the door on foreign handling of our natural resources, but at the same time it leaves open a window for alien participation in some aspects. The central question before us is how wide is the entry of opportunity created by the provision.

My vote on the motions for reconsideration is hinged on a renewed exegesis of Section 2² of Article XII in conjunction with the proper understanding of the nature of the power vested on the President under Section 2. It has to be appreciated in relation to the inherent functions of the executive branch of government.

The Contract-Making Power of the President

While all government authority emanates from the people, the breadth and depth of such authority are not brought to bear by direct popular action, but through representative government in accord with the principles of republicanism.³ By investiture of the Constitution, the function of executive power is parceled solely to the duly elected President.⁴ The Constitution contains several express manifestations of executive power, such as the provision on control over all executive departments, bureaus and offices,⁵ as well as the so-called Commander-in-Chief clause.⁶ ςrνll

Yet it has likewise been recognized in this jurisdiction that executive power is not limited to such powers as are expressly granted by the Constitution. Marcos v. Manglapus⁷ concedes that the President has powers other than those expressly stated under the Constitution,⁸ and thus implies that these powers may be exercised without being derivative from constitutional authority.⁹ The precedental value of Marcos v. Manglapus may be controvertible,¹⁰ but the cogency of its analysis of the scope of executive power is indisputable. Neither is the concept of plenary executive power novel, as discussed by Justice Irene Cortes in her ponencia:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be executive. Thus, in the landmark decision of Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who between the Governor-General of the Philippines and the Legislature may vote the shares of stock held by the Government to elect directors in the National Coal Company and the Philippine National Bank, the U.S. Supreme Court, in upholding the power of the Governor-General to do so, said:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

.. . Here the members of the legislature who constitute a majority of the "board" and "committee" respectively, are not charged with the performance of any legislative functions or with the doing of anything which is in aid of performance of any such functions by the legislature. Putting aside for the moment the question whether the duties devolved upon these members are vested by the Organic Act in the Governor-General, it is clear that they are not legislative in character, and still more clear that they are not judicial. The fact that they do not fall within the authority of either of these two constitutes logical ground for concluding that they do fall within that of the remaining one among which the powers of government are divided. .. [At 202-203; emphasis supplied.]

We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find reinforcement for the view that it would indeed be a folly to construe the powers of a branch of government to embrace only what are specifically mentioned in the Constitution:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other.. ..

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It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires.[At 210-211.]¹¹ ςrνll

Such general power has not been diminished notwithstanding the avowed intent of some of the framers of the 1987 Constitution to limit the powers of the President as a reaction to abuses under President Marcos, for as the Court noted, the result was a limitation of the specific powers of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power.¹² The critical perspective of this case should spring from a recognition of this elemental fact.

Undeniably, the particular power now in question is expressly provided for by Section 2, Article XII of the Constitution. Still, it originates from the concept of executive power that is not explicitly provided for by the Constitution. As a necessary incident of the functions of the executive office, it can be concluded that the President has the authority to enter into contracts in behalf of the State in matters which are not denied him or her or not otherwise assigned to the other great branches of government, even if such general power is not categorically recognized in the Constitution. Among these traditional functions of the executive branch is the power to determine economic policy.

As once noted by Justice Feliciano, the Republic of the Philippines is itself a body corporate and juridical person vested with the full panoply of powers and attributes which are compendiously described as legal personality.¹³ As Chief of State the President is also regarded as the head of this body corporate,¹⁴ and thus is capacitated to represent the State when engaging with other entities. Such executive function, in theory, does not require a constitutional provision, or even a Constitution, in order to be operative. It is a power possessed by every duly constituted presidency starting with Aguinaldos. This faculty is complementary to the traditional regard of a Head of State as emblematic of the State he/she represents.

The power to contract in behalf of the State is clearly an executive function, as opposed to legislative or judicial. This is easily discernible through the process of exclusion. The other branches of government the legislative and the judiciary are not similarly capacitated since their core functions pertain to legislating and adjudicating respectively.

However, I am not making any pretense that such executive power to contract is unimpeachable or limitless. The Constitution frowns on unchecked executive power, mandating in broad strokes, the power of judicial review¹⁵ and legislative oversight.¹⁶ The Constitution itself may expressly restrict the exercise of any sort of executive function. Section 2 undeniably constrains the exercise of the executive power to contract in several regards.

Constitutional Limitations under Section 2, Article XII

What are the express limitations under Section 2 on the power of the executive to contract with foreign corporations regarding the exploration, development and utilization of our natural resources?chanroblesvirtualawlibrary

There are two fundamental restrictions, both of which are asserted in the second paragraph of Section 2. These are that the State retains legal ownership of all natural resources,¹⁷ and that the State shall have full control and supervision over the exploration, development and utilization of natural resources.¹⁸ These key postulates are facially broad and warrant clarification. They also predicate several specific restrictions laid down in the fourth paragraph of Section 2 on the power of the President to enter into agreements with foreign corporations. These specific limitations are as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

First, the natural resources that may be subject of the agreement are a limited class, particularly minerals, petroleum, and other mineral oils. Among the natural resources which are excluded from these agreements are lands of the public domain, waters, coal, fisheries, forests or timbers, wildlife, flora and fauna. Most notable of the exclusions are forests and timbers which are in all respects expressly limited to Filipinos.

It is noteworthy that a previous version of the fourth paragraph of Section 2 deliberated upon during the 1987 Constitutional Commission allowed agreements with foreign-owned corporations with respect to all classes of natural resources.¹⁹ However, on the initiative of Commissioner (now Chief Justice) Davide, the provision was amended to limit the scope of such agreements to minerals, petroleum and other mineral oils, which Commissioner Davide recognized as those particular areas where Filipino capital may not be sufficient.²⁰ ςrνll

The exclusion of timber resources from the scope of financial/technical assistance agreements marks a significant distinction from the service contracts of old. This does not come as a surprise, considering well-reported abuses under the old regime of issuing timber licensing agreements, which numbered in the thousands prior to the 1987 Constitution. On the other hand, no similar extensive collateral damage has been reported for the petroleum and mining industry, capital-intensive industries whose potential for government revenues in billions of pesos has long been sought after by the State.²¹ Hence, the variance in treatment from the timber industry and the rest of the natural resources.

Second, these agreements with foreign-owned corporations can only be entered into for only large-scale exploration, development and utilization of minerals, petroleum, and other mineral oils.

Third, it is only the President who may enter into these agreements. This is another pronounced change from the 1973 Constitution, which allowed private persons to enter into service contracts with foreign corporations.

Fourth, these agreements must be in accord with the general terms and conditions provided by law. This proviso by itself, and more so when taken together, as it should, with another provision,²² entails legislative intervention and affirmance in the exercise of this executive power. While it is the President who enters into these contracts, he/she must act within such terms and conditions as may be prescribed by Congress through legislation. The value of legislative input as a means of influencing policy should not be discounted. Policy initiatives grounded on particular economic ideologies may find enactment through legislation when approved by the necessary majorities in Congress. Legislative work includes consultative processes with persons of diverse interests, assuring that economic decisions need not be made solely from an ivory tower. There is also the possible sanction of repudiation by the voters of legislators who prove insensate to the economic concerns of their constituents.

Fifth, the President is mandated to base the decision of entering into these agreements on real contributions to the economic growth and general welfare of the country. In terms of real limitations, this condition has admittedly little effect. The discretion as to whether or not to enter into these agreements is vested solely by the Constitution in the President, and such exercise of discretion, pertaining as it does to the political wisdom of a co-equal branch, generally deserves respect from the courts.

The above conditionalities, particularly the first three, effect the desire of the framers of the 1987 Constitution to limit foreign participation in natural resource-oriented enterprises. They provide a vivid contrast to the 1973 Constitution, which permitted private persons to enter into service contracts for financial, technical, management, or other forms of assistance with any person or entity, including foreigners, and for the exploration or utilization of any of the natural resources.²³ These requisites imposed by the 1987 Constitution, which are significantly more onerous than those laid down in the 1973 Constitution, warrant obeisance by the executive branch and recognition by this Court.

Not Strictly Technical or Financial Assistance

The Courts previous Decision, now for reconsideration, insisted on another restriction purportedly imposed by the fourth paragraph of Section 2. It is argued that foreignowned corporations are allowed to render only technical or financial assistance in the large-scale exploration, development and utilization of minerals, petroleum and mineral oils. This conservative view is premised on the sentiment that the Constitution limits foreign involvement only to areas where they are needed, the overpowering intent being to allow Filipinos to benefit from Filipino resources.²⁴ Towards that end, the perception arises that the power of the executive to enter into agreements with foreign-owned corporations is an executive privilege, hampered by the limitations that generally attach to the grant of privileges.

On the fundamental nature of this power, I harbor an entirely different view. The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single articles torn from context.²⁵ The previously adopted approach is rigidly formalist, and impervious to the traditional prerogatives of executive power.

As I stated earlier, the executive authority to contract is a right emanating from traditional executive functions, and is connected with the power of the executive branch to determine economic policy. Hence, the proper approach in interpreting Section 2, Article XII is to tilt in favor of asserting the right rather than view the provision as a limitation on a privilege. To subscribe to the Courts previous view will necessitate adopting as a fundamental premise that absent an express grant of power, the executive branch has no capacity to contract since such capacity arises from a privilege.

Had the provision been worded to state that the President may enter into agreements for technical or financial assistance only, then this unambiguous limitation should be affirmed. Yet the Constitution does not express such an intent. The controversial provision is crafted in such a way that allows any type of agreement, so long as they involve either technical or financial assistance. In fact, the provision does not restrict the scope of the agreement so as to pertain exclusively either to technical or financial assistance.

The Constitution, in allowing foreign participation specifically in the large scale exploration, development and utilization of natural resources, is cognizant of the sad truth that such activities entail significant outlay of capital and advanced technological know-how that domestic corporations may not yet have.²⁶ The provision expressly adverts to technical and financial assistance in recognition of the reality that these two facets are the indispensable requisites to qualify foreign participants in the exploration, development, and utilization of mineral and petroleum resources.

Had the framers chosen to restrict all aspects of all mining activities to domestic persons, the real fear would have materialized that our mineral reserves could remain untapped for a significant period of time, owing to the paucity of venture capital. There was a real option to heed dogmatic guns who insisted that the mineral resources remain unutilized until the day when the domestic mining industry becomes capacitated to undertake the extraction without need of foreign aid. Obviously, the more pragmatic view won the day.

If indeed the foreign entity is limited only to technical or financial participation, the implication is that it is up to the State to do all the rest. Considering the lack of know-how and financial capital, matters which were appreciated by the framers of the Constitution, this intended effect is preposterous. Even the State itself would hesitate to undertake such extractive activities owing to the intensive capital and extensive training such enterprise would entail. By allowing this expansive set-up under Section 2, the Constitution enables the minimization of risk on the part of the State should it desire to undertake large-scale mineral extractive activities. The pay-off though, understandably, is an atypical cession of several State prerogatives in the development of its mineral and petroleum resources.

Perhaps there is need to be explicit and incisive about the implications of Section 2. The word assistance, shorn of context, implies a charitable grant offered without any quid pro quo attached. Unconditional foreign aid may be more prevalent this day and age with the acceptance of the notion that there are base minimum standards of decent living which all persons are entitled to. However, such concept is alien to the mining industry. There is no such entity as an International Benevolent Association for Extraction of Minerals. If assistance is to be restrictively interpreted according to ordinary parlance, no entity would be interested in undertaking this regulated industry.

Any decision by any enterprise to assist in the exploration, development or utilization of mineral resources does not arise from a philanthropic impulse. It is a pure and simple investment, and one that is not engaged in unless there is the expectation or hope of a reasonable return. I hasten to add that the deliberate incorporation of the fourth paragraph of Section 2 has created a window of opportunity for foreign investments in the extractive enterprises involving petroleum and other mineral oils, subject of course to limitations under the law. The term may prove discomfiting to the ideologically committed, the sentimental nationalist or the visceral oppositionist. Still, the notion is not inconsistent with the general power of the executive to enter into agreements for the purpose of enticing foreign investments.

Why then the term assistance? Apart from its apparent political palatability in comparison with investment, as intimated before, the term is useful in underscoring the essential facets of the foreign investment which is assistance in the financial or technical areas, as well as the fundamental limitations and conditionalities of the investment. What is allowed is participation, though limited, by foreign corporations which in turn are entitled to expect a return on their investments.

The Court had earlier premised the invalidity of several provisions of the Mining Act on the argument that those provisions authorized service contracts. But while the 1987 Constitution does not utilize the term service contracts, it actually contemplates a broader expanse of agreements beyond mere contracts for services rendered. Still, although the provision sanctions a more numerous class of agreements, these are subjected to more stringent restrictions than what had been allowed under the 1973 Constitution. Thus, the test should be whether the law and the contract take away the States full control and supervision over the exploration, development and utilization of the countrys mineral resources and negate or defeat the States ownership thereof.

In line with the test, Section 2 should be accorded a liberal interpretation so as to recognize this fundamental prerogative of the presidency. Such liberal interpretation does not equate to a wholesale concession of mining resources to foreigners, much less to an atmosphere of complaisance, whether from their perception or the Filipinos. The fourth paragraph sets specific limitations on the exercise by the President of this contract-making power. On the other hand, the second paragraph of Section 2 lays down the fundamental limitations which likewise may not be countermanded.

On the basis of the foregoing discussion, and as a necessary consequence of my view that the agreements under Section 2 are not strictly limited to financial or technical assistance, I would consider the following questioned provisions of Republic Act No. 7942 as valid Sections 3 (g), 34 to 38, 40 to 41, 56 and 90. These provisions were struck down on the premise that they allowed the constitution of service contracts, an agreement which to my mind is still within the contemplation of Section 2, Article XII.

State Ownership over Mineral and Petroleum Resources

There is need to clarify the specific meaning of these general limitations arising from the States assertion of ownership, full control and supervision.

In respect to the petition, the question of ownership has become material to the proper share the State should receive from the exploration, development and utilization of mineral resources. I perceive that all the members of the Court agree that such profit may not be limited to only such revenue derived from the taxation of the mining activities. Since the right of the State to obtain a share in the net proceeds and not merely through taxes arises as an attribute of ownership unequivocally reserved by the Constitution for the State, such right may not be proscribed either by legislative provision or contractual stipulation.

Yet it should be conceded that the State has the right to enter into an agreement concerning such profits. There are, as probably should be, political consequences if the President opts to surrender all of the States profits to a foreign corporation, yet in bare theory, the right to bargain profits pertains to the wisdom of a political act not ordinarily justiciable before this Court. Still, the overriding adherence of the Constitution to the regalian doctrine should be given due respect, and an interpretation allowing beneficial ownership by the foreign corporation should not be favored.

For purposes of the present judicial review, I would consider it prudent to limit myself to conceding that the Court had previously erred in invalidating certain provisions of Rep. Act No. 7942 and the WMC FTAA on the mistaken notion that the law and the agreement cede beneficial ownership of mineral resources to a foreign corporation.

Section 4 of Rep. Act No. 7942 expressly recognizes State ownership over mineral resources, though it is silent on the operational terms of such ownership. Of course, such general submission would not be in itself curative of whatever contraventions to State ownership are contained in the same law; hence, the need for deeper inquiry.

The dissenters wish to strike down the second paragraph of Section 81 of Rep. Act No. 7942 because it purportedly precludes the Government from obtaining profits under the agreement from sources other than its share in taxation. However, as the ponencia points out, the phrase among other things sufficiently allows the government from demanding a share in the cash flow or earnings of the mining enterprise. A contrary view is anchored on a rule of statutory construction that concludes that among other things refers only to taxes. Yet, there is also a rule of construction that laws should be interpreted with a view of upholding rather than destroying it. Thus, the ponencias formulation, which achieves the result of the minority without need of statutory invalidation, is highly preferable.

The provisions of Rep. Act No. 7942 which authorize the conversion of a financial or technical assistance into a mineral production sharing agreement (MPSA) turned out to be just as controversial. In this regard, the minority wishes to strike down Section 39, which in conjunction with Sections 80 and 84 of the law would purportedly allow such conversion, in that it would effectively limit the government share in the profits to only the excise tax on mineral products under internal revenue law.

These concerns are valid and raise troubling questions. Yet equally troubling is that the Court is being called upon to rule on a premature question. There is no such creature yet as an FTAA converted into an MPSA, and so there is no occasion that calls for the application of Sections 39, 80 and 84. I do not subscribe to judicial pre-emptive strikes, as they preclude the application of still undisclosed considerations which may prove illuminating and even crucial to the proper disposition of the case. By seeking invalidation of these MPSA provisions, the Court is also asked to strike down an enactment of a co-equal branch which has not given rise to an actual case or controversy. After all, such enactment deserves due respect from this branch of government. Assuming that the provisions are indeed invalid, the Court will not hesitate, at the proper time, to strike them down or at least impose a proper interpretation that does not run afoul of the Constitution.²⁷ However, in the absence of any actual attempt to convert an FTAA to an MPSA, the time is not now.

I likewise agree with the ponencia that Section 7.9 deprives the State of its rightful share as an incident of ownership without offsetting compensation. The provisions of the FTAA are fair game for judicial review considering their present applicability. In fact, the invalidation of Section 7.9 becomes even more proper now under the circumstances since the provision has become effectual considering the sale of the foreign equity in WMCP to a domestic corporation. It is within the competence of this Court to invalidate Section 7.9 here and now. For that matter, Section 7.8(e) of the FTAA may be similarly invalidated as it can already serve to unduly deprive the Government of its proper share by allowing double recovery by WMC.

Full Control and Supervision of the State

The matter of full control and supervision emerges just as controversial. Does this grant of power mandate that the State exercise management over the activity, or exclude the exercise of managerial control by the foreign corporation?chanroblesvirtualawlibrary

I dont think it proper to construe the word full as implying that such control or supervision may not be at all yielded or delegated, for reasons I shall elaborate upon. Instead, full should be read as pertaining to the encompassing scope of the concerns of the State relating to the extractive enterprises on which it may interfere or impose its will.

It must be conceded that whichever party obtains managerial control must be allowed considerable elbow room in the exercise of management prerogatives. Management is in the most informed position to make resources productive in the pursuit of the enterprises objectives.²⁸ In this age of specialization, corporations have benefited with the devolution of operational control to specialists, rather than generalists. The era of the buccaneer entrepreneur chartering his industry solely on gut feel is over. The vagaries of international finance have dictated that prudent capitalists cede to the opinion of their experts who are hired because they trained within their particular fields to know better than the persons who employ them. The Constitution does not prescribe a particular manner of management; thus, we can conclude that the State is not compelled to adopt outmoded methods that could tend to minimize profits.

Still, the question as to who should exercise management is best left to the parties of the agreement, namely the President and the foreign corporations. They would be in the best position to determine who is best qualified to exert managerial control. This prerogative of management can be exercised by the State if it so insists and the co-parties agree, and the wisdom of such arrogation is ultimately a policy question this Court has little control over. And even if the State cedes management to a different entity such as the foreign corporation, it has the duty to safeguard that the actual exercise of managerial power does not contravene our laws and public policy.

There is barely any support of the view that only the State may exert managerial control. Even the minority concede that these foreign corporations are not precluded from participating in the management of the project. I think it unwise to construe full supervision and control to the effect that the States assent or opinion is necessary before any day-to-day operational questions may be resolved. There is neither an express rule to that effect, nor any law of construction that necessitates such interpretation. Ideally of course, the most qualified party should be allowed to manage the enterprise, and we should not allow an interpretation that compels a possibly unsuited entity, such as the State, to operationalize the business.²⁹ Such a limited construction would be inconvenient and absurd,³⁰ not to mention potentially wasteful.

The Constitution itself concedes that the State may not have the best sense as to how to undertake large-scale exploration, development and utilization of mineral and petroleum resources. This is evinced by the allowance of foreign technical assistance and foreign participation in the extractive enterprise. Had the Constitution recognized that the State was supremely qualified to undertake the operational aspects of the activity, then it could have phrased the provision in such a way that would strictly limit the foreign participation to monetary investment or a financial grant of assistance.

The absence of an express provision on management permits consideration of the following sensible critique on yielding too many management prerogatives to a remote overseer such as the State. An early United Nations report once noted that while it is theoretically possible to endow a government department with a high degree of operating flexibility, it is in practice difficult to do so.³¹ It has been proposed that the further away a decision-maker is to the market, the higher the information cost, or the opportunity cost to the gaining of information.³² Remoteness can be achieved through the layering of bureaucratic structure, and because of the information loss that accompanies the transmission of information and judgments from lower levels of the hierarchy to higher levels, the ultimate basis of a decision may be misleading at best and erroneous at worst.³³ ςrνll

The same conclusion arises from the view that what the provision authorizes is foreign investment. The foreign player necessarily at least has a reasonable say in how the mining venture is run. The interest of the investor in seeing that the investment is not wasted should be recognized not only as a right available to the investor, but from the broader view that such say would lead to a more prudent management of the project. It must be noted that mineral and petroleum resources are non-renewable, thus a paramount interest arises to ensure against wasteful exploitation.

Next for consideration is the situation, as in this case, if management is ceded to the foreign corporation, or even to a private domestic corporation for that matter. What should be the proper dichotomy, if any, between the private entitys exercise of managerial control, and the States full control and supervision?chanroblesvirtualawlibrary

The President may insist on conditions into the agreement pertaining to the States degree of control and supervision in the mining activity. This was certainly done with the WMC FTAA, which is replete with stipulations delineating the States control which are judicially enforceable, imposed presumably at the Presidents call. But the FTAA itself is not the only vehicle by which State control and supervision is exercised. These can similarly be enforced through statutes, as well as executive or administrative issuances. The Mining Act itself is an expression of State control and supervision, implemented in coordination with the executive and legislative branches.

As a general point, I believe that State control and supervision is unconstitutionally yielded if either of the Mining Act or the FTAA precludes the application of the laws and regulations of the Philippines, enunciatory as they are of State policy. Neither the Mining Act nor the WMC FTAA are flawed in that regard. The agreements under contemplation are not beyond the ambit of our regular laws, or regulatory enactments pertaining to such areas as environmental concerns. Violations of these laws uttered in the name of the FTAA are punishable in this jurisdiction.

Still, the fact that the Constitution requires full control and supervision indicates an expectation of a more activist role on the part of the State in the operations of the mining enterprise, perhaps to the prejudice of the laissez-faire capitalist. Most importantly, the State cannot abdicate its traditional functions by contractual limitations. It could compel the mining operations to comply with existing environmental regulations, as well as with future issuances. It may compel the foreign corporation payment of all assessable levies. It may evict officers of the foreign corporation for violation of immigration laws. It may preclude mining operations that affect prerogatives granted by law to indigenous peoples. It could restrict particular mining operations which are established to be disasters or nuisances to the affected communities. The power of the State to enforce its police powers needs no statutory grant and are certainly not limited either by the Mining Act or the WMC FTAA.

As to business decisions, I think that the State may exercise control for the purpose of ensuring profit of the enterprise as a whole. This may involve visitorial activity, the conduct of periodic audits, and such powers normally attributed to an overseer of a business. Just as the foreign corporation is expected to guard against waste of financial capital, the State is expected likewise to guard against the waste of resource capital.

I might as well add that, in my view, the constitutional objective of maintaining full control and supervision over the exploration, development and utilization of the countrys mineral resources in the State would be best served by the creation of a public corporation for the development and utilization of these resources, accountable to the State for all actions in its behalf. The device of a corporation properly utilized provides sufficient protection to the States interests while affording flexibility and efficiency in the conduct of mining operations.³⁴ ςrνll

The creation of a public corporation could remedy a number of potential problems regarding full State control and supervision of extractive activities concerning our mineral resources by entities which have the funds and/or technical know-how but which cannot have a great degree of control and supervision over such activities. Persons knowledgeable and competent in mining operations may sit in the corporations board of directors and craft policies which implement and further concretize the broad aims of R.A. No. 7942, taking into consideration the nature of the mining industry. The Board would also be in charge of studying existing contracts for mining activities, and approving proposed contracts. The Board may also employ corporate officers and employees to take charge of the day-to-day operations of the mining activities pursuant to the corporations contracts with other entities.

Under such a scheme, the perceived abdication by the State of control and supervision over mining activities in favor of the foreign entities rendering financial and/or technical assistance would be greatly diminished. It would be the public corporation which would principally undertake mining activities and contract with foreign entities for financial and/or technical assistance if necessary. The foreign contractor in such cases would not have the power to determine the course of the project or the major policies involved therein because these functions would belong to the public corporation as the agent of the State.

A public corporation would also have the additional benefit of compelling the input of not only the executive branch, but also that of the legislative. Such executive-legislative coordination is necessary since public corporations may only be created through statute.

Section 3.3 of WMC FTAA Constitutional

Finally, it is argued that Section 3.3 of the WMC FTAA violates paragraph 1, Section 2, Article XII of the Constitution, which imposes a limitation on the term of mineral agreements. I agree with the ponencia that the constitutional provision does not pertain to FTAAs. It is clear from reading Section 1 that the agreements limited in term therein are co-production agreements, joint venture agreements, and mineral production-sharing agreements, which are all referred to in Section 1, and not the FTAAs mentioned only in Section 4. Accordingly, Section 3.3 of the WMC FTAA is not infirm.

Epilogue

Behind the legal issues presented by the petition are fundamental policy questions from which highly opinionated views can develop, even from the members of this Court. The promise brought about by the large-scale exploitation of our mineral and petroleum resources may bring in much needed revenue, but Filipinos should properly inquire at what cost. As a Filipino, I am distressed whenever the government crosses the line from cooperation to subservience to foreign partners in development. Popular Western wisdom aside, what is good for General Motors is not necessarily good for the country. The propagation of a foreign-influenced mining industry may lead to a whole slew of social problems³⁵ which shall be exacerbated if the government is complicit, either through active participation or benign neglect, to abuses committed by the mining industry against the Filipino people. Unlike the foreign corporation, the bottom line which the State should consider is not found below a ledger, but in the socio-economic dynamic that will confront the government as a result of the large-scale mining venture. Political capital is more fickle than financial capital.

Still, the right to vote I exercise today is that as of a member of the Court, and not that of the general electorate. The limits of judicial power would exasperate any well-meaning judge who feels duty-bound to affirm a constitutionally valid law or principle he or she may otherwise disagree with. My views on how the government should act are segregate from my view on whether the government has the power to act at all.

My conclusions are borne out of a close textual analysis of Section 2 in light of my fundamental understanding of the constitutional powers of the executive branch. This is in line with my perception of the judicial duty as being limited to charting the scope and boundaries of the law. The philosophy of inclusiveness that drives my interpretation of Section 2 is bolstered not because it might lead to benefits to the economy, but because it gives due regard to the discretion of the Executive to determine what is good for the economy. This judicial attitude may not always ensure the economic good. But before we carve that judicial path out of what we believe are good intentions, restraint is imperative out of due deference to our co-equal branches, since the duty of formulating and implementing economic policies falls exclusively within their purview.

In view of the foregoing, I concur with the opinion of Justice Panganiban.