Professional Documents
Culture Documents
2005
November 22, 2005
Sir:
This refers to the request of the Power Sector Assets Liabilities Management
Corporation ("PSALM") for confirmation of its position that:
The request, it appears, is raised in connection with the proposed sale structure to
be adopted by the PSALM for the privatization of the hydroelectric and geothermal
generation assets ("Gencos") of the National Power Corporation ("NPC") pursuant to
Republic Act No. 9136 (Electric Power Industry Reform Act of 2001"), and, in the light
of the nationality restrictions imposed by Section 2, 1 Article XII of the 1987
Constitution.
Applying the same reasoning, it is also alleged that when a geothermal power
plant utilizes steam to generate power, the act of converting the steam to geothermal
energy could not be considered as falling within the constitutional inhibition since the
steam has to pass man-made structures, such as scrubbers and pipelines, before it is
utilized by the geothermal power plant.
Premised on the condition that only the power components shall be transferred to
the foreign bidders while the non-power components/structures shall be retained by state
agencies concerned, we find that both PSALM's proposal and position are tenable.
Where the State of New York took its natural resources consisting of
Saratoga Spring and, though a bottling process, put those resources into preserved
condition where they could be sold to the public in competition with private
waters, the state agencies were not immune from federal taxes imposed upon
bottled waters on the theory that state was engaged in the sale of "natural
resources". 8
Footnotes
1. The constitutional provision adverted to pertinently reads:"
"Sec. 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, fisheries, forest or
timber, wildlife, flora and fauna, and other natural resources are owned by the State. With
the exception of agricultural lands, all other natural resources shall not be alienated. The
exploration, development and utilization of natural resources shall be under the full
control and supervision of the State. The State may directly undertake such activities, or
it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital
is owned by such citizens. Such agreements, may be for a period not exceeding twenty-
five years, renewable for not more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of water power, beneficial
use may be the measure and limit of the grant". (Stress ours)
2. Presidential Decree No. 1067.
3. Article 15 of the Water Code reads:
ART. 15. Only citizens of the Philippines, of legal age, as well as judicial
persons who are duly qualified by law to exploit and develop water resources, may apply
for water permits. (Emphasis added)
4. Article 9, supra, states:
ART. 9. Waters may be appropriated and used in accordance with the
provisions of this Code.
Appropriation of water, as used in this Code, is the acquisition of rights
over the use of waters or the taking or diverting of waters from a resource in the manner
and for any purpose allowed by law. (Emphasis supplied)
5. Sec. of Justice Op. No. 14, 1995.
6. Id., No. 122, s. 1998; No. 100, s. 1994; No. 24, s. 1989; and No. 173, s. 1984.
7. U.S. vs. State of New York, D.C.N.Y., 48 F. Supp. 15.
8. At p. 18, quoted in 28 W & P, Perm. Ed., p. 72.
9. Natural resources have been defined as "any material from nature having potential
economic value or providing for the sustenance of life, such as timber, minerals, oil,
water and wildlife. (Black's Law Dictionary, 8th [2004] ed., p. 1056)
10. Op. cit., No. 55, s. 1939.
11. Bernas, The 1987 Constitution of the Republic of the Philippines, A Commentary,
1996 ed., p1011, quoting Vicente G. Sinco.