Separate Dissenting Opinion

PANGANIBAN, J.:

I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno, may I just add:

1. The majority contends the Constitution should be interpreted to mean that, after a bidding process is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that “in the grant of rights x x x covering the national economy and patrimony, the State shall give preference to qualified Filipinos.” The majority concedes that there is no law defining the extent or degree of such preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal that of the winning foreigner. In the absence of such empowering law, the majority’s strained interpretation, I respectfully submit, constitutes unadulterated judicial legislation, which makes bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the Philippines!

2. Aside from being prohibited by the Constitution, such judicial legislation is short-sighted and, viewed properly, gravely prejudicial to long-term Filipino interest. It encourages other countries – in the guise of reverse comity or worse, unabashed retaliation – to discriminate against us in their own jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain unchallenged by their nationals. The majority’s thesis will thus marginalize Filipinos as pariahs in the global marketplace with absolutely no chance of winning any bidding outside our country. Even authoritarian regimes and hermits kingdoms have long ago found out that unfairness, greed and isolation are self-defeating and in the long-term self-destructing.

The moral lesson here is simple: Do to do unto others what you do not want others to do unto you.

3. In the absence of a law specifying the degree or extent of the “Filipino First” policy of the Constitution, the constitutional preference for the “qualified Filipinos” may be allowed only where all the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without being unfair to the foreigner.

In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied. But not when the ballgame is over and the foreigner clearly posted the highest score.