southern cross cement vs phil cement manufacturers

8/12/2019 Southern Cross Cement vs Phil Cement Manufacturers

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SECOND DIVISION

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

SOUTHERN CROSS CEMENT CORPORATION, petitioner, vs. THEPHILIPPINE CEMENT MANUACTURERS CORP., THESECRETAR! O THE "EPARTMENT O TRA"E # IN"USTR!,THE SECRETAR! O THE "EPARTMENT O INANCE, $%& THECOMMISSIONER 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! nationsad'(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 theGenera# .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 increasedim"orts $hich inf#ict or co(#d inf#ict serio(s in'(r! on them% *: &he $isdom of the "o#iciesbehind the S7., ho$ever, is not "(t into ;(estion b! the "etition at bar% &he ;(estionss(bmitted to the Co(rt re#ate to the means and the "roced(res ordained in the #a$ toens(re that the determination of the im"osition or non5im"osition of a safeg(ardmeas(re is "ro"er%

Antecedent Facts

-etitioner So(thern Cross Cement Cor"oration /“So(thern Cross”0 is a domesticcor"oration engaged in the b(siness of cement man(fact(ring, "rod(ction, im"ortationand 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#cemcor”0 isan 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

http://sc.judiciary.gov.ph/jurisprudence/2004/jul2004/158540.htm#_ftn1


















man(fact(rers, it a""ears that considerab#e e;(it! ho#dings, if not contro##ing interests inat #east t$e#ve /+40 of its member5cor"orations, $ere ac;(ired b! the three #argestcement 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 inanciereG#aris, ?td%, then @o#derfin A%V%0% *1

On 44 7a! 466+, res"ondent De"artment of &rade and Ind(str! /“D&I”0 acce"ted ana""#ication from -hi#cemcor, a##eging that the im"ortation of gra! -ort#and cement *B inincreased ;(antities has ca(sed dec#ines in domestic "rod(ction, ca"acit! (ti#i)ation,market share, sa#es and em"#o!ment as $e## as ca(sed de"ressed #oca# "rices%

.ccording#!, -hi#cemcor so(ght the im"osition at first of "rovisiona#, then #ater, definitivesafeg(ard meas(res on the im"ort of cement "(rs(ant to the S7.% -hi#cemcor fi#ed thea""#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, determinedthat 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 &$ent! -esos and Si<t! Centavos /-46%>60 "er fort! /:60 ki#ogram bag ona## im"ortations of gra! -ort#and cement for a "eriod not e<ceeding t$o h(ndred /4660da!s from the date of iss(ance b! the A(rea( of C(stoms /AOC0 of theim"#ementing Customs Memorandum Order %*+4 &he corres"onding CustomsMemorandum 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;(estfrom the D&I for a forma# investigation to determine $hether or not to im"ose a definitivesafeg(ard meas(re on im"orts of gra! -ort#and cement, "(rs(ant to Section B of theS7. 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 ande<"orters, the Embassies of Indonesia, =a"an and &ai$an, contractorsb(i#dersassociations, ind(str! associations, cement $orkers gro("s, cons(mer gro("s, non5government 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#cemcors a""#ication%*+> &he &ariff Commission a#so visited the cor"orate offices and man(fact(ring faci#ities of each of thea""#icant com"anies, as $e## as that of So(thern Cross and t$o other cementim"orters% *+2

On +9 7arch 4664, the &ariff Commission iss(ed its orma# Investigation Re"ort/“Re"ort”0% .mong the factors st(died b! the &ariff Commission in its Re"ort $ere themarket share of the domestic ind(str!,*+1 "rod(ction and sa#es,*+B ca"acit! (ti#i)ation,*46 financia# "erformance and "rofitabi#it!, *4+ and ret(rn on sa#es%*44 &he &ariff Commissionarrived at the fo##o$ing conc#(sionsF

+% &he circ(mstances "rovided in .rtic#e I of G.&& +BB: need not be demonstratedsince 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 andthe 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#an0are “#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% &heincrease 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 itscondition, i.e%, serio(s in'(r!%

>% &here is no threat of serio(s in'(r! that is imminent from im"orts of gra! -ort#andcement%

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&ISecretar! 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 theDe"artment of =(stice /“DO=”0 on the D&I Secretar!s sco"e of o"tions in acting on theCommissions 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&ISecretar! of the &ariff Commissions negative finding, or finding that a definitivesafeg(ard meas(re sho(#d not be im"osed%*4>

On 3 ."ri# 4664, the D&I Secretar! "rom(#gated a Decision. .fter ;(oting theconc#(sions of the &ariff Commission, the D&I Secretar! noted the D&Is 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, itfi#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 $e## as the &ariff CommissionsRe"ort% -hi#cemcor #ike$ise a""#ied for a Temporary Restraining Order/n!unction toen'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 torender '(dgment inde"endent#! of the Re"ort% -hi#cemcor arg(ed that the D&ISecretar!, vested as he is (nder the #a$ $ith the "o$er of revie$, is not bo(nd to ado"tthe recommendations of the &ariff Commission 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#cemcors 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! inconnection $ith the im"osition of a safeg(ard meas(re% It #ike$ise arg(ed that-hi#cemcors resort to the s"ecia# civi# action of certiorari is im"ro"er, considering that$hat -hi#cemcor so(ght to rectif! is an error of '(dgment and not an error of '(risdictionor grave ab(se of discretion, and that a "etition for revie$ $ith the C&. $as avai#ab#eas a "#ain, s"eed! and ade;(ate remed!% ina##!, So(thern Cross echoed the DO=O"inion that Section +9 of the S7. "rec#(des a revie$ b! the D&I Secretar! of a

negative finding of the &ariff Commission%

.fter cond(cting a hearing on +B =(ne 4664 on -hi#cemcors a""#ication for "re#iminar! in'(nction, the Co(rt of .""ea#s &$e#fth Division *9+granted the $rit so(ght inits Reso"ution dated 4+ =(ne 4664%*94 Seven da!s #ater, on 41 =(ne 4664, the t$o5

h(ndred /4660−da! "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 BSe"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(rebe!ond the t$o h(ndred /4660−da! #imit im"osed b! #a$% &he a""ea#s co(rt fai#ed to

take immediate action on So(thern Crosss 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 commenton So(thern CrosssMotion for Reconsideration%*9: .fter -hi#cemcor fi#edits Opposition*93 on +9 7arch 4669, So(thern Cross fi#ed another set of fo(r /:0 motionsfor ear#! reso#(tion%

Des"ite the efforts of So(thern Cross, the Co(rt of .""ea#s fai#ed to direct#! reso#vethe Motion for Reconsideration% Instead, on 3 =(ne 4669, it rendered a Decision,*9>

granting in "art -hi#cemcors "etition% &he a""e##ate co(rt r(#ed that it had '(risdictionover the "etition for certiorari since it a##eged grave ab(se of discretion% It ref(sed toann(# 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(#dnot 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&ISecretar! is not bo(nd b! the fact(a# findings of the &ariff Commission sinces(ch findings are mere#! recommendator! and the! fa## $ithin the ambit of theSecretar!s discretionar! revie$% It determined that the #egis#ative intent is to grant theD&I Secretar! the "o$er to make a fina# decision on the &ariff Commissionsrecommendation% *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##ateco(rts 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#cemcors "etition, the "ro"er remed! being a "etition for revie$ $iththe C&. conformab#! $ith the S7., and 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 Crosss "etition before this Co(rt necessari#! "reventedthe Co(rt of .""ea#s Decision from becoming fina#%*:6Het on 43 =(ne 4669, the D&ISecretar! iss(ed a ne$ Decision, r(#ing this time that that in #ight of the a""e##ate

co(rts Decision there $as no #onger an! #ega# im"ediment to his deciding -hi#cemcorsa""#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(sin'(r! as a res(#t of the im"ort s(rges% *:4 .ccording#!, he im"osed a definitive safeg(ardmeas(re on the im"ortation of gra! -ort#and cement, in the form of a definitivesafeg(ard d(t! in the amo(nt of -46%>6:6 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 aTemporary Restraining Order and/or A %rit of Pre"iminary n!unction”/“&RO App"ication”0, 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 ano""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!s 43 =(ne 4669 Decision $hich im"osed the definitesafeg(ard meas(re% -rescinding from this action, -hi#cemcor fi#ed $ith this Co(rta Manifestation and Motion to Dismissin regard to So(thern Crosss "etition, a##egingthat it de#iberate#! and $i##f(##! resorted to for(m5sho""ing% It "oints o(t that So(thernCrosss &RO App"ication seeks to en'oin the D&I Secretar!s second decision, $hi#eits Petition before the C&. "ra!s for the ann(#ment of the same decision% *::

Reiterating its Comment on So(thern Crosss Petition for Re&ie' , -hi#cemcor a#soarg(es that the C&., being a s"ecia# co(rt of #imited '(risdiction, co(#d on#! revie$ ther(#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 Crosss 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(rtsim"#ified the iss(es in this $iseF /i0 $hether the Decision of the D&I Secretar! isa""ea#ab#e to the C&. or the Co(rt of .""ea#s /ii0 ass(ming that the Co(rt of .""ea#shas '(risdiction, $hether its Decision is in accordance $ith #a$ 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 theim"osition of the genera# safeg(ard meas(res, So(thern Cross $as forced to ceaseo"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 Crosss a""#icationfor "rovisiona# re#ief% It so(ght to en'oin the D&I Secretar! from enforcing the definitivesafeg(ard meas(re he im"osed in his 43 =(ne 4669 Decision% &he Co(rt did not grantthe "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$ise to## theim"osition or co##ection of the a""ro"riate tariff d(ties or the ado"tion of other a""ro"riate safeg(ard meas(res%*34 &his evinces a c#ear #egis#ative intent that theim"osition of safeg(ard meas(res, des"ite the avai#abi#it! of '(dicia# revie$, sho(#d notbe 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 hasbeen 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 thatsanction 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#cemcors Petition, disc(ssed the iss(e of $hether or not the D&ISecretar! is bo(nd to ado"t the negative recommendation of the &ariff Commission onthe 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 theD&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#s 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#! $hen there isno "#ain, s"eed! and ade;(ate remed! in the ordinar! co(rse of #a$% *3> So(thern Crossre#ies on this #imitation, stressing that Section 4B of the S7. is a "#ain, s"eed! andade;(ate remed! in the ordinar! co(rse of #a$ $hich -hi#cemcor did not avai# of% &heSection 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 tovest so#e and e<c#(sive '(risdiction on matters invo#ving interna# reven(e and c(stomsd(ties to s(ch a s"ecia#i)ed co(rt% *31 A! the ver! nat(re of its f(nction, the C&. isdedicated e<c#(sive#! to the st(d! and consideration of ta< "rob#ems and hasnecessari#! 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 totake cogni)ance of a case sho(#d be c#ear#! conferred and sho(#d not be deemed toe<ist on mere im"#ication% *>6 Conceded#!, Re"% .ct No% ++43, the stat(te creating theC&., 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%

ndeniab#!, ho$ever, the S7. e<"anded the '(risdiction of the C&. b! inc#(dingrevie$ of the r(#ings of the D&I Secretar! in connection $ith the im"osition of safeg(ardmeas(res% @o$ever, -hi#cemcor and the "(b#ic res"ondents agree that the C&. hasa""e##ate '(risdiction over a decision of the D&I Secretar! im"osing a safeg(ardmeas(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 “*decisions of the Secretar! of &rade andInd(str!, in case of nonagric(#t(ra# "rod(ct, commodit! or artic#e <<< invo#ving<<< *$+-u$& /$*u* u%& Rul3 A3) No. 8800, ) $)y /$y$$l ) &3*o% )o /o* o %o) )o /o* *$& &u)*%”*>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&.s '(risdiction% A(t as Re"% .ct No% B414 cannot be a""#ied retroactive#! to the "resentcase, the ;(estion of $hether s(ch '(risdiction e<tends to a decision not to im"ose asafeg(ard meas(re $i## have to be sett#ed "rinci"a##! on the basis of the S7.%

nder Section 4B of the S7., there are three re;(isites to enab#e the C&. toac;(ire '(risdiction over the "etition for revie$ contem"#ated thereinF /i0 there m(st be ar(#ing b! the D&I Secretar! /ii0 the "etition m(st be fi#ed b! an interested "art!adverse#! affected b! the r(#ing and /iii0 s(ch r(#ing m(st be in connection $ith theim"osition of a safeg(ard meas(re% &he first t$o re;(isites are c#ear#! "resent% &hethird 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"ondents "osition is that '(dicia# revie$ of the D&I Secretar!s r(#ingis e<ercised b! t$o different co(rts, de"ending on $hether or not it im"oses a safeg(ardmeas(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 isthe C&. $hich has a""e##ate '(risdiction other$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 tosanction s"#it '(risdiction%*>9 &he "o$er of the D&I Secretar! to ado"t or $ithho#d asafeg(ard meas(re emanates from the same stat(tor! so(rce, and it bogg#es the mind$h! the a""ea# moda#it! $o(#d be s(ch that one a""e##ate co(rt is ;(a#ified if $hat is tobe revie$ed is a "ositive determination, and it is not if $hat is a""ea#ed is a negativedetermination% In deciding $hether or not to im"ose a safeg(ard meas(re, "rovisiona# or genera#, the D&I Secretar! $o(#d be eva#(ating on#! one bod! of facts and a""#!ingthem to one set of #a$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 $as the #egis#ative motive es"ecia##! consideringthat the #a$ e<"ress#! confers on the C&., the trib(na# $ith the s"ecia#i)ed com"etenceover ta< and tariff matters, the ro#e of '(dicia# revie$ $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 "rovisionrefers 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 *>> isa""#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#eda""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$ing a negative determination b! the D&I Secretar! nor conferredon the Co(rt of .""ea#s s(ch revie$ 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 negativedetermination% @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! “% 3o%%3)o% ) the im"ositionof 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"ondents c#aim $o(#d haveindis"(tab#e merit% ndo(bted#!, the "hrase “in connection $ith” not on#! ;(a#ifies b(tc#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 non5im"osition of a safeg(ard meas(re%

In the .merican case of )ha' &. De"ta Air ines, nc.,*>1 the nited States S("remeCo(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 hasconnection $ith or reference to%”*>B &here is no serio(s dis"(te that the "hrase “inconnection $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#sothe ac;(ired connotative meaning of “in connection $ith” in common"ar#ance% Conse;(ent#!, $ith the (se of the "hrase “in connection $ith,” Section 4Ba##o$s the C&. to revie$ not on#! the r(#ing im"osing a safeg(ard meas(re, b(t a##other ul%-* l$)& o $6 +%3 )o ) $l3$)o% +o *u3 /$*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! notsatisf!% Even the S S("reme Co(rt in -e' or )tate 0"ue Cross P"ans &. Tra&e"ersns%*26 conceded that the "hrases “re#ate to” or “in connection $ith” ma! be e<tended tothe farthest stretch of indeterminac! for, (niversa##!, re#ations or connections are infiniteand sto" no$here%*2+ &h(s, in the case the S @igh Co(rt, e<amining the same "hraseof the same "rovision of #a$ invo#ved in )ha' , resorted to #ooking at the stat(te and itsob'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 tothe C&.%*29

&he a(thorit! to decide on the safeg(ard meas(re is vested in the D&I Secretar! inthe 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! theC&.%*23 &h(s, the acts of other bodies that $ere granted some "o$ers b! the S7., s(chas the &ariff Commission, are not s(b'ect to direct revie$ b! the C&.%

nder the S7., the De"artment Secretar! concerned is a(thori)ed to decide onsevera# matters% 8ithin thirt! /960 da!s from recei"t of a "etition seeking the im"ositionof 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 thedomestic ind(str!%*2> S(ch r(#ing is cr(cia# since on#! ("on the Secretar!s "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 &heSecretar! 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 theaffirmative, $hat genera# safeg(ard meas(res sho(#d be a""#ied% *2B Even after thegenera# safeg(ard meas(re is im"osed, the Secretar! is em"o$ered to e<tend thesafeg(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% &heseare the iss(es $hich arise in connection $ith, or in re#ation to, the im"osition of asafeg(ard meas(re% &he! ma! arise at different stages J the "re#iminar! investigationstage, 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 takenseeking the im"osition of a safeg(ard meas(re% It is the initiator! action for theim"osition of a safeg(ard meas(re that sets the $hee#s in motion, a##o$ing theSecretar! 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,” asintended b! Congress, "ertain to $ll ul%-* o+ ) "TI S3)$y o A-3ul)u

S3)$y 3 $* +o/ ) )/ $% $l3$)o% omotu proprio

%)$)o% +o ) /o*)o% o+ $ *$+-u$& /$*u * )$7%. Indeed, the incidents $hich re;(irereso#(tion come to the fore on#! beca(se there is an initia# a""#ication or action seekingthe im"osition of a safeg(ard meas(re% rom the #egis#ative stand"oint, it $as a matter of sense and "ractica#it! to #(m" (" the ;(estions re#ated to the initiator! a""#ication or action for safeg(ard meas(re and to assign on#! one co(rt and that is the C&. toinitia##! revie$ 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(ardmeas(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,” asit 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! inconnection $ith a safeg(ard meas(re, ho$ever diverse the o(tcome ma! be, arise fromthe same grant of '(risdiction on the D&I Secretar! b! the S7.% *14 &he ref(sa# b! the D&ISecretar! to grant a safeg(ard meas(re invo#ves the same grant of a(thorit!, the samestat(tor! "rescri"tions, and the same degree of discretion as the im"osition b! the D&ISecretar! of a safeg(ard meas(re%

&he "osition of the res"ondents is one of “(ncritica# #itera#ism” *19 incongr(ent $ith theanim(s of the #a$% 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 fromfavoring an inter"retation that $o(#d ca(se inconvenience and abs(rdit!% *13 .do"ting theres"ondents "osition favoring the C&.s minima# '(risdiction $o(#d (nnecessari#! #eadto i##ogica# and onero(s res(#ts%

Indeed, it is i##ibera# to ass(me that Congress had intended to "rovide a""e##atere#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 ana""ea# to the C&.% Het these t$o re#iefs are of differing nat(res and gravamen% 8hi#e ana""ea# ma! be "redicated on errors of fact or errors of #a$, a s"ecia# civi# action for certiorari is gro(nded on grave ab(se of discretion or #ack of or e<cess of '(risdiction onthe "art of the decider% or a s"ecia# civi# action for certiorari to s(cceed, it is not eno(ghthat 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 !iththe 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 heis so em"o$ered (nder Section 2 of the S7., or ref(se to ado"t the definitivesafeg(ard meas(re (nder Section +9 of the same #a$% .do"ting the res"ondentstheor!, 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 intobe#ieving that $hat $as $ithin $as act(a##! be!ond and $hat $as st(died and de#iberateact(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 Itcertain#! 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 itscharacter% 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 theS7. is $orded in s(ch a $a! that it "#aces (nder the C&.s '(dicia# revie$ 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(ardmeas(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 firstbe 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 $ish of Congress is that the "etition conform to the re;(irements and"roced(re (nder R(#e :9 of the R(#es of Civi# -roced(re% Since Congress mandatedthat the form and "roced(re ado"ted be ana#ogo(s to a revie$ of a C&. r(#ing b! theCo(rt of .""ea#s, the #egis#ative contem"#ation co(#d not have been that the a""ea# bedirect#! taken to the Co(rt of .""ea#s%

ssue of 0inding 1ffect of Tariff Commission3s Factua" Determinationon 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 theabsence 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#sthe "roced(re for the ado"tion of a safeg(ard meas(re, as $e## as the ste"s to be takenin case there is a negative fina# determination% &he im"#ication of the Co(rt of .""ea#sho#ding is that the D&I Secretar! ma! ado"t a definitive safeg(ard meas(re,not$ithstanding a negative determination made b! the &ariff Commission%

ndo(bted#!, Section +9 "rescribes certain #imitations and restrictions before

genera# safeg(ard meas(res ma! be im"osed% @o$ever, ) /o*) +u%&$/%)$l*)3)o% o% ) "TI S3)$y* o % )$) *3) * 3o%)$%& %

S3)o% 5 o+ ) SMA )$) ) *oul& +*) $ o*)6 +%$l

&)/%$)o% o+ ) T$++ Co//**o% $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(ardmeas(re $hich is "ro"er#! vested on the D&I Secretar!%*11

.## in a##, there are t$o condition "recedents that m(st be satisfied before the D&ISecretar! ma! im"ose a genera# safeg(ard meas(re on gre! -ort#and cement% irst,there m(st be a "ositive fina# determination b! the &ariff Commission that a "rod(ct isbeing im"orted into the co(ntr! in increased ;(antities /$hether abso#(te or re#ative todomestic "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(stestab#ish that the a""#ication of s(ch safeg(ard meas(res is in the "(b#ic interest% *1B .sSo(thern Cross arg(es, Section 3 is ;(ite c#ear5c(t, and it is im"ossib#e to finag#e adifferent conc#(sion even thro(gh overarching methods of stat(tor! constr(ction% &hereis 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 $ordsof 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 ofsuch !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 $hichinter"rets Section 3 of the #a$, #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!% &hedistinction 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 "ositivefina# determination does not necessari#! res(#t in the im"osition of a genera# safeg(ardmeas(re% nder 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 thestatistics 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 thefindings of the &ariff Commission do not bind the D&I Secretar!% *B9 Het as e<"#ainedear#ier, the "#ain meaning of Section 3 em"hasi)es that on#! if the &ariff Commissionrenders a "ositive determination co(#d the D&I Secretar! im"ose a safeg(ardmeas(re% Resort to the congressiona# records to ascertain #egis#ative intent is not$arranted if a stat(te is c#ear, "#ain and free from ambig(it!% &he #egis#at(re is "res(medto kno$ 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 $ithe<treme ca(tion, as #egis#ative debates and "roceedings are "o$er#ess to var! theterms of the stat(te $hen the meaning is c#ear% *B3 O(r ho#ding in Ci&i" iberties $nion &.14ecuti&e )ecretary *B> on the resort to de#iberations of the constit(tiona# convention tointer"ret the Constit(tion is #ike$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 usno 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#ativede#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!s "o$er to

im"ose a genera# safeg(ard meas(re b! "reconditioning s(ch im"osition on a "ositivedetermination b! the &ariff Commission% S(ch #egis#ative intent sho(#d be given f(## forceand effect, as the e<ec(tive "o$er to im"ose definitive safeg(ard meas(res is b(t a

de#egated "o$er the "o$er of ta<ation, b! nat(re and b! command of the f(ndamenta#

#a$, being a "reserve of the #egis#at(re%*B1 Section 41/40, .rtic#e VI of the +B12Constit(tion confirms the de#egation of #egis#ative "o$er, !et ens(res that the"rerogative of Congress to im"ose #imitations and restrictions on the e<ec(tive e<erciseof this "o$erF

The Congress may, by la!, authori@e the President to fi7 !ithin specified limits, andsubject 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 theim"orted "rod(ct /b0 a decrease in or the im"osition of a tariff5rate ;(ota on the"rod(ct /c0 a modification or im"osition of an! ;(antitative restriction on the im"ortationof the "rod(ct into the -hi#i""ines /d0 one or more a""ro"riate ad'(stment meas(res,

inc#(ding the "rovision of trade ad'(stment assistance and /e0 an! combination of theabove5described actions% E<ce"t for the "rovision of trade ad'(stment assistance, themeas(res en(merated b! the S7. are essentia##! im"osts, $hich "recise#! are thes(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$er b! the #egis#ative to the e<ec(tive isa(thori)ed b! the Constit(tion itse#f% *+6+ .t the same time, the Constit(tion a#so grants thede#egating a(thorit! /Congress0 the right to im"ose restrictions and #imitations on theta<ation "o$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 branchis ob#iged to observe%

&he S7. em"o$ered the D&I Secretar!, as a"ter ego of the -resident,*+69 to im"osedefinitive genera# safeg(ard meas(res, $hich basica##! are tariff im"osts of the t!"es"oken of in the Constit(tion% @o$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 theS7. it does not f#o$ from an! inherent e<ec(tive "o$er% &h(s, the #imitations im"osedb! 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&ISecretar!, having the fina# decision on the safeg(ard meas(re, has the "o$er toeva#(ate the findings of the &ariff Commission and make an inde"endent '(dgmentthereon% 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, $hom, as the Co(rt recogni)ed, “*the stat(tes of the nited Statesre;(ire*d <<< to e<ercise his '(dgment ("on the #ega#it! <<< *of "rovisions of #a$ and

reso#(tions of Congress "roviding for the "a!ment of mone!, the means of "roc(ringtestimon! ("on $hich he ma! act%” *+6>

&h(s in amb, $hi#e the Co(rt recogni)ed the $ide #atit(de of discretion that ma!have been vested on the Ins(#ar .(ditor, it a#so recogni)ed that s(ch #atit(de f#o$edfrom, 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<"ortim"ort ;(otas and other s(chsafeg(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 iscirc(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 rightsvio#ations did not e<tend to ad'(dicating c#aims on the merits% *+61 -hi#cemcor c#aims thatthe f(nctions of the &ariff Commission being “on#! investigator!,” it co(#d neither decidenor ad'(dicate%*+6B

&he a""#icab#e #a$ governing the iss(e in Cari5o is Section +1, .rtic#e III of theConstit(tion, $hich de#ineates the "o$ers and f(nctions of the C@R% &he "rovision doesnot 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%*++6Het, $itho(t modif!ing the thoro(gh dis;(isition of the Co(rt

in Cari5o on the genera# #imitations on the investigator! "o$er, the "recedent isina""#icab#e beca(se of the difference in the invo#ved stat(tor! frame$orks% &heConstit(tion does not re"ose binding effect on the res(#ts of the C@Rs investigation%*+++ On the other hand, thro(gh Section 3 of the S7. and (nder the a(thorit! of Section41/40, .rtic#e VI of the Constit(tion, Congress did intend to bind the D&I Secretar! to thedetermination made b! the &ariff Commission%*++4 It is of no conse;(ence that s(chdetermination 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&ISecretar! 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.s 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#iancesho(#d not be "#aced on the te<t(a# im"recisions% Rather, Section +9 and R(#e +9 m(stbe 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(ct

/b0 . decrease in or the im"osition of a tariff5rate ;(ota /7.V0 on the "rod(ct

/c0 . modification or im"osition of an! ;(antitative restriction on the im"ortation of the "rod(ct into the -hi#i""ines

/d0 One or more a""ro"riate ad'(stment meas(res, inc#(ding the "rovision of tradead'(stment assistance

/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

/$3) rovided, however , That developing countries !ith less than three percent /$3

share collectively account for not more than nine percent /93 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 inance, 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 daysfrom 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 theinvestigator! 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#, asthese 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 isa "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 inaccordance $ith Section 3% &he &ariff Commission is not em"o$ered to make arecommendation absent a "ositive fina# determination on its "art% *++B nder Section +9,















the &ariff Commission is re;(ired to recommend to the *D&I Secretar! an “a""ro"riatedefinitive 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 thedomestic 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, arenot ob#igator! on the D&I Secretar!% Nothing in the S7. mandates the D&I Secretar! toado"t the recommendations made b! the &ariff Commission% In fact, the S7. re;(iresthat the D&I Secretar! estab#ish that the a""#ication of s(ch safeg(ard meas(res is inthe "(b#ic interest, not$ithstanding the &ariff Commissions recommendation on thea""ro"riate safeg(ard meas(re based on its "ositive fina# determination% *+44 &he non5binding force of the &ariff Commissions recommendations is congr(ent $ith thecommand of Section 41/40, .rtic#e VI of the +B12 Constit(tion that on#! the -residentma! be em"o$ered b! the Congress to im"ose a""ro"riate tariff rates, im"orte<"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 $o(#d in essence (nd(#! arrogate tothe &ariff Commission the e<ec(tive "o$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%

n#ike the recommendations of the &ariff Commission, its determination has adifferent effect on the D&I Secretar!% On#! on the basis of a "ositive fina# determinationmade 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 ou%& y) &)/%$)o% 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"riategenera# safeg(ard meas(re as determined b! the Secretar! $ithin fifteen /+30 da!s fromrecei"t of the re"ort%” L(ite "#ain#!, the $ord “determined” in this conte<t "ertains to theD&I Secretar!s "o$er of choice of the a""ro"riate safeg(ard meas(re, as o""osed tothe &ariff Commissions "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#sore#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 $ithin the fifteen /+30 da! "eriod%Nothing in Section +9 contradicts the instr(ction in Section 3 that the D&I Secretar! isa##o$ed to im"ose the genera# safeg(ard meas(res on#! if there is a "ositivedetermination made b! the &ariff Commission%

nfort(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 toim"#ement, for a reg(#ation $hich o"erates to create a r(#e o(t of harmon! $ith thestat(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. inal 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&I”0% 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$)o%$l E3o%o/3

"6lo/%) Au)o)y, $% %&%&%) l$%%%- $-%3y o+ ) -o6%/%) o+ 3o9:u$l $%7 $* ) "TI.*+42 .s the s("ervision and contro# of a De"artment Secretar!is #imited to the b(rea(s, offices, and agencies (nder him, *+41 the D&I Secretar! genera##!cannot e<ercise revie$ a(thorit! over actions of the &ariff Commission% Neither does theS7. s"ecifica##! a(thori)e the D&I Secretar! to a#ter, amend or modif! in an! $a! thedetermination made b! the &ariff Commission% &he most that the D&I Secretar! co(#d doto e<"ress dis"#eas(re over the &ariff Commissions actions is to ignore itsrecommendation, b(t not its determination%

&he $ord “determination” as (sed in R(#e +9%4 of the Im"#ementing R(#es isdissonant $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!ondthe res(#ting conf(sion, ho$ever, the divergent (se in R(#e +9%4 is e<"#icab#e as theR(#e te<t(a##! "ertains to the "o$er of the D&I Secretar! to revie$ therecommendations of the &ariff Commission, not the #atters determination% Indeed, ane<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 removethe 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! theD&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 Commissions 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 "ositivefina# determination made b! the &ariff Commission sho(#d first be obtained before thedefinitive 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(ardmeas(reK Of co(rse, this Co(rt does not in;(ire into the $isdom of the #egis#at(re b(ton#! charts the bo(ndaries of "o$ers and f(nctions set in its enactments% A(t then, it isnot 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 checkand ba#ance invo#ving t$o different governmenta# agencies $ith dis"arates"ecia#i)ations% &he matter of safeg(ard meas(res is of s(ch nationa# im"ortance that adecision either to im"ose or not to im"ose then co(#d have r(ino(s effects oncom"anies doing b(siness in the -hi#i""ines% &h(s, it is idea# to "(t in "#ace a s!stem$hich affords a## d(e de#iberation and ca##s to fore vario(s governmenta# agenciese<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 theG.&&, (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 asafeg(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. $as designed not to contradict the G.&&, b(t to com"#ement it% &he t$ore;(isites #aid do$n in Section 3 for a "ositive fina# determination are the sameconditions "rovided (nder the G.&& .greement on Safeg(ards for the a""#ication of safeg(ard meas(res b! a member co(ntr!% 7oreover, the investigator! "roced(re #aiddo$n b! the S7. conforms to the "roced(re re;(ired b! the G.&& .greement onSafeg(ards% Congress has chosen the &ariff Commission as the com"etent a(thorit! tocond(ct s(ch investigation% So(thern Cross stresses that a""#!ing the "rovision of theG.&& .greement on Safeg(ards, the &ariff Commission is c#ear#! em"o$ered to arriveat binding conc#(sions%*+948e agreeF binding on the D&I Secretar! is the &ariff Commissions 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 as(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 $hich the S7. sho(#dbe ana#!)ed, the f#a$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(reset (" 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&ISecretar! 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(seserio(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 isnegative, 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 immediateforma# investigation%*+92

9% &he &ariff Commission cond(cts its forma# investigation, ke!ed to$ards making afina# determination% In the "rocess, it ho#ds "(b#ic hearings, "roviding interested "artiesthe o""ort(nit! to "resent evidence or other$ise be heard%*+91 &o re"eat, Section 3

en(merates $hat the &ariff Commission is tasked to determineF /a0 $hether a "rod(ct isbeing 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(ction and /b0 $hether theim"ortation in increased ;(antities is s(ch that it ca(ses serio(s in'(r! or threat to thedomestic ind(str!%*+9B &he findings of the &ariff Commission as to these matters constit(tethe fina# determination, $hich ma! be either "ositive or negative%






















:% nder Section +9 of the S7., if the &ariff Commission makes a "ositivedetermination, the &ariff Commission “recommends to the *D&I Secretar! ana""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#!ingca(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 $hata""ro"riate safeg(ard meas(res sho(#d he im"ose%

>% @o$ever, if the &ariff Commission makes a negative fina# determination, the D&ISecretar! cannot im"ose an! definitive safeg(ard meas(re% nder Section +9, he isinstr(cted instead to ret(rn $hatever cash bond $as "aid b! the a""#icant ("on theinitiation 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!, $iththe 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##!, theCo(rt of .""ea#s co(#d not have ac;(ired '(risdiction over -hi#cemcors "etition for certiorari in the first "#ace, as Section 4B of the S7. "ro"er#! vests '(risdiction on theC&.% Conse;(ent#!, the assai#ed Decision is an abso#(te n(##it!, and $e dec#are it ass(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 haverecogni)ed that an! initia# '(dicia# revie$ of a D&I r(#ing in connection $ith theim"osition of a safeg(ard meas(re be#ongs to the C&.% .t the same time, the Co(rt a#sorecogni)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 theD&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#sDecision that the D&I Secretar! iss(ed hisr(#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&ISecretar! 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 thea""e##ate co(rts Decision for in his o$n 3 =(ne 4669Decision, he dec#aredF

rom 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 theassai#ed Decision of the Co(rt of .""ea#s to '(stif! his rendering a secondDecision. @ee<"#icit#! invoked the Co(rt of .""ea#s Decision as basis for rendering his 3 =(ne4669 r(#ing, and im"#icit#! recogni)ed that $itho(t s(ch Decision he $o(#d not have thea(thorit! to revoke his "revio(s r(#ing and render a ne$, 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 thereforeno choice b(t to dec#are it void as $e##, #est $e sanction the "erverse e<istence of a fr(itfrom a non5e<istent tree% It does not even matter $hat the dis"osition of the 43 =(ne4669 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 itbeen a '(dge $ho attem"ted to enforce a decision that is not !et fina# and e<ec(tor!, heor 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 $e are ca"acitatedto a##ocate the bo(ndaries set b! the #a$ 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 N?? .ND VOID and SE& .SIDE% &he Decision of the D&ISecretar! dated 43 =(ne 4669 is a#so DEC?.RED N?? .ND VOID and SE&

.SIDE% No Costs%

SO OR"ERE".

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