G.R. No.

248061-MORE ELECTRIC AND POWER CORPORATION,

Petitioner v. PANAY ELECTRIC COMPANY, INC., Respondent; and

G.R. No. 249406 - REPUBLIC OF THE PHILIPPINES, Petitioner-

Oppositor, MORE ELECTRIC AND POWER CORPORATION,
Petitioner v. PANAY ELECTRIC COMPANY, INC., Respondent.

Promulgated:
September

x--------------------------------------- .-----------.---------------

SEPARATE OPINION

PERLAS-BERNABE, J.:

I concur in the result.

At the onset, it must be highlighted that this case stemmed from a

Petition for Declaratory Relief1 assailing the constitutionality of Sections 10
and 17 of Republic Act No. (RA) 11212; 2 this is not an appeal from a ruling
made by the trial court in the expropriation proceedings proper, wherein the
propriety of the taking's public use will still be put at issue. In National Power
Corporation v. Posada 3 (National Power Corp.), the Court described the two
phases of expropriation proceedings as follows:
Expropriation, the procedure by which the government takes
possession of private property, is outlined primarily in Rule 67 of the Rules
of Court. It undergoes two phases. The first phase determines the propriety
of the action. The second phase determines the compensation to be paid to
the landowner. x x x

[In the first phase, the trial court] is concerned with the
determination of the authority of the plaintiff to exercise
the power of eminent domain and the propriety of its
exercise in the context of the facts involved _in the suit. It
ends with an order, if not of dismi~sal of the action, "of
condemnation declaring that the plaintiff has a lawful right
to take the property sought to be condemned, for the public
use or purpose described in the complaint xx x."

x x x x 4 (Emphases supplied)

See ponencia, pp. 3-4.

2
Entitled "AN ACT GR.ANTING MORE ELECTRJC AND POWER CORPORATION A FRANCHISE TO ESTABLISH,
OPERATE, AND MAINTAIN, FOR COMMERCIAL PURPOSES AND IN THE PUBLIC INTEREST, A DISTRIBUTION
SYSTEM FOR THE CONVEYANCE OF ELECTRJC POWER TO THE END USERS IN THE CITY OF lLOILO,
PROVINCE OF lLOILO, AND ENSURING THE CONTINUOUS AND UNINTERRUPTED SUPPLY OF ELECTRICITY
IN THE FRANCHISE AREA," approved on February 14, 2019.
755 Phil. 613 (2015).
4
Id. at 624.
Separate Opinion 2 G.R. No. 248061

Thus, it is not merely the amount of just compensation, but the

propriety of the taking itself, which is up for judicial determination by the
courts. Accordingly, the evaluation of the propriety of the taking is, in theory,
a judicial function. As held in National Power Corp.:

The power of eminent domain is an inherent competence of the state.

It is essential to a sovereign. Thus, the Constitution does not explicitly
define this power but subjects it to a limitation: that it be exercised only for
public use and with payment of just compensation. Whether the use is
public or whether the compensation is constitutionally just will be
determined finally by the courts. 5 (Emphasis and underscoring supplied)

Generally, the propriety of an eminent domain taking is hinged on its

"public use." This is implicit from Section 9, Article III of the 1987
Constitution which states that "[p]rivate property shall not be taken for
public use without just compensation." The Court, however, reckoned that
the exercise of the power of eminent domain is also circumscribed by the
due process clause of the Constitution, viz.:

In general, eminent domain is defined as "the power of the nation or

a sovereign state to take, or to authorize the taking of, private property for
a public use without the owner's consent, conditioned upon payment of just
compensation." It is acknowledged as "an inherent political right, founded
on a common necessity and interest of appropriating the property of
individual members of the community to the great necessities of the whole
community."

The exercise of the power of eminent domain is constrained by

two constitutional provisions: (1) that private property shall not be
taken for public use without just compensation under Article III (Bill
of Rights), Section 9 and (2) that no person shall be deprived of his/her
life, liberty, or property without due process of law under Art. III, Sec.
1. 6 (Emphasis supplied)

The term "public use" is undefined in the eminent domain clause of our
Constitution. In this regard, the Court recognized that "there is no precise
meaning of 'public use' and the term is susceptible of myriad meanings
depending on diverse situations."7

Historically, there are two (2) views on this matter. The first is the
narrow definition of public use - that is " [t] he limited meaning attached to
'public use' is 'use by the public' or 'public employment,' that 'a duty must
devolve on the person or corporation holding property appropriated by right
of eminent domain to furnish the public with the use intended, and that there
must be a right on the part of the public, or some portion of it, or some public
or quasi-public agency on behalf of the public, to use the property after it is

5 Id. at 623.
6
Barangay Sindalan, San Fernando Pampanga, rep. by Brgy. Capt. Gutierrez v. Court of Appeals, 547
Phil. 542,551 (2007), citing 26 Am Jur 2d 638.
7
Id.
Separate Opinion 3 G.R. No. 248061

condemned." 8 However, this narrow definition of "public use" being

equivalent to the "use of the public" has been later superseded by a more
expansive definition of the term equating "public use" to "public purpose."

In the United States, where we have patterned our own Constitution,

the Supreme Court (SCOTUS), in Kela v. New London 9 (Kelo ), explained the
evolution of the term "public use" as applied in eminent domain cases:

[T]his "Court long ago rejected any literal requirement that condemned
property be put into use for the general public." Indeed, while many state
courts in the mid-19th century endorsed "use by the public" as the
proper definition of public use, that narrow view steadily eroded over
time. Not only was the "use by the public" test difficult to administer
(e.g., what proportion of the public need have access to the property?
at what price?), but it proved to be impractical given the diverse and
always evolving needs of society. Accordingly, when this Court began
applying the Fifth Amendment to the States at the close of the 19th
century, it embraced the broader and more natural interpretation of
public use as "public purpose." Thus, in a case upholding a mining
company's use of an aerial bucket line to transport ore over property it did
not own, Justice Holmes' opinion for the Court stressed "the inadequacy of
use by the general public as a universal test." Strickley v. Highland Boy
Gold Mining Co., 200 U. S. 527, 531 (1906). We have repeatedly and
consistently rejected that narrow test ever since. 10 (Emphasis supplied)

As stated in Keio, the SCOTUS has embraced the broad interpretation

of public use as "public purpose," reasoning that not only was the "use by the
public" test difficult to administer, but it was also impractical "given the
diverse and always evolving needs of society." Thus, the SCOTUS has
"repeatedly and consistently rejected that narrow test ever since."

In our jurisdiction, this Comi has acceded to "[t]he more generally

accepted view [which] sees 'public use' as 'public advantage, convenience,
or benefit, and that anything which tends to enlarge the resources, increase
the industrial energies, and promote the productive power of any considerable
number of the inhabitants of a section of the state, or which leads to the growth
of towns and the creation of new resources for the employment of capital and
labor, [which] contributes to the general welfare and the prosperity of the
whole community.'" 11 In Manapat v. Court ofAppeals, 12 this Court stated that
"the 'public use' requisite for the valid exercise of the power of eminent
domain is a flexible and evolving concept influenced by changing conditions.
At present, it may not be amiss to state that whatever is beneficially
employed for the general welfare satisfies the requirement of public
use." 13

8
Id.at551-552.
9
545 U.S. 469 (2005).
10
See id.
11
Barangay Sindalan, San Fernando Pampanga, rep. by Brgy. Capt. Gutierrez v. Court ofAppeals, supra
note 6 at 552.
12
562 Phil. 31 (2007).
13
Id. at 53, citing Estate ofJimenez v. PEZA, 402 Phil. 271, 291 (2001).
Separate Opinion 4 G.R. No. 248061

However, it is well to point out that, at least in the United States,

adherence to the expansive definition of "public use" as the standard for
eminent domain takings has not gone without any strident dissent.

In the same case of Kelo, Justice Clarence Thomas (Justice Thomas)

lamented that "[t]he Framers embodied that principle in the Constitution,
allowing the government to take property not for 'public necessity,' but
instead for 'public use.' Defying this understanding, the [SCOTUS] [has]
replace[d] the Public Use Clause with a 'Public Purpose' Clause, (or perhaps
the 'Diverse and Always Evolving Needs of Society' Clause) xx x." 14

In addition to defying the "most natural reading of the clause," Justice

Thomas also forewarned of the danger of the government taking one's private
property and giving it to another private individual, whereby the taking may
be legitimized because of "the incidental benefits that might accrue to the
public from the private use," viz.:

The most natural reading of the Clause is that it allows the

government to take property only if the government owns, or the public
has a legal right to use, the property, as opposed to taking it for any
public purpose or necessity whatsoever. At the time of the founding,
dictionaries primarily defined the noun "use" as "[t]he act of employing any
thing to any purpose." 2 S. Johnson, A Dictionary of the English Language
2194 (4th ed. 1773) (hereinafter Johnson). The term "use," moreover, "is
from the Latin utor, which means 'to use, make use of, avail one's self of,
employ, apply, enjoy, etc." J. Lewis, Law of Eminent Domain§ 165, p. 224,
n. 4 (1888) (hereinafter Lewis). When the government takes property
and gives it to a private individual, and the public has no right to use
the property, it strains language to say that the public is "employing"
the property, regardless of the incidental benefits that might accrue to
the public from the private use. The term "public use," then, means that
either the government or its citizens as a whole must actually "employ" the
taken property. See id., at 223 (reviewing founding-era dictionaries). 15
(Emphases supplied)

Parenthetically, Justice Thomas reasoned that by defying the natural

import of the term "public use," "we are afloat without any certain principle
to guide us" since there is "no coherent principle limits what could constitute
a valid public use xx x." In contrast, "[i]t is far easier to analyze whether
the government owns or the public has a legal right to use the taken
property than to ask whether the taking has a 'purely private purpose x
x x.' Otherwise, "the Court [would] eliminate public use scrutiny of takings
entirely." 16

In the same vein, Justice Sandra Day O'Connor (Justice O'Connor), in

Kelo, argued that by expanding the definition of "public use," the qualifying
standard would lose any practical relevance since "nearly any lawful use of
14
See Dissenting Opinion of Justice Thomas in Keio v. New London, supra note 9.
15
See id.
16
See id.
Separate Opinion 5 G.R. No. 248061

real private property can be said to generate some incidental benefit to

the public." 17 Accordingly, there would be no more "constraint on the
eminent domain power," viz.:

In moving away from our decisions sanctioning the condemnation

of harmful property use, the Court today significantly expands the meaning
of public use. It holds that the sovereign may take private property
currently put to ordinary private use, and give it over for new, ordinary
private use, so long as the new use is predicted to generate some
secondary benefit for the public-such as increased tax revenue, more
jobs, maybe even aesthetic pleasure. But nearly any lawful use of real
private property can be said to generate some incidental benefit to the
public. Thus, if predicted (or even guaranteed) positive side-effects are
enough to render transfer from one private party to another constitutional,
then the words "for public use" do not realistically exclude any takings, and
thus do not exert any constraint on the eminent domain power. 18 (Emphasis
supplied)

In this relation, Justice O'Connor cautioned that this broad

interpretation of "public use" allows one's property to be taken in favor of
those "with disproportionate influence and power in the political process,
including large corporations and development firms." 19 In the end, "the
government now has license to transfer property from those with fewer
resources to those with more."20 This, to her, runs counter to the concept of
a just goverrunent "which impartially secures to every man, whatever is his
own," viz.:

Any property may now be taken for the benefit of another private
party, but the fallout from this decision will not be random. The
beneficiaries are likely to be those citizens with disproportionate influence
and power in the political process, including large corporations and
development firms. As for the victims, the government now has license to
transfer property from those with fewer resources to those with more. The
Founders cannot have intended this perverse result. "[T]hat alone is
ajust government," wrote James Madison, "which impartially secures to
every man, whatever is his own." For the National Gazette, Property, (Mar.
29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al.
eds. 1983). 21

While SCOTUS rulings, much less, opinions of dissenting US Justices,

are not binding in our jurisdiction, they are nonetheless persuasive in shaping
our own doctrinal bearings. As previously mentioned, this Court has
subscribed to the doctrine equating "public use" to mere public interest, public
purpose, or public advantage. Thus,. as long as the taking of private property
subserves some form of general welfare, the public use requisite of the
eminent domain clause in our Constitution is met, leaving the amount of just
compensation as the only remaining issue.

17
See Dissenting Opinion of Justice O'Connor in Keio v. New London, supra note 9.
18
See id.
19
See id.
20
See id.
21
See id.
Separate Opinion 6 G.R. No. 248061

Notably, while this Court has held that "[t]he number of people is not
determinative of whether or not it constitutes public use, provided [that] the
use is exercisable in common and is not limited to particular
individuals," 22 still, the discernible divide between a taking that subserves
some public interest but at the same time, accommodates a clear private
benefit, and which between the two in a particular case is a mere
incidence, remain blurry subjects in our current body of jurisprudence.

In Vda. De Ouano v. Republic, 23 cited in the 2015 case of National

Power Corp., the Court expressed that "the direct use by the state of its power
to oblige landowners to renounce their productive possession to another
citizen, who will use it predominantly for that citizen's own private gain, is
offensive to our laws," 24 viz.:

In esse, expropriation is forced private property taking, the

landowner being really without a ghost of a chance to defeat the case of the
expropriating agency. In other words, in expropriation, the private owner is
deprived of property against his will. Withal, the mandatory requirement of
due process ought to be strictly followed, such that the state must show, at
the minimum, a genuine need, an exacting public purpose to take private
property, the purpose to be specifically alleged or least reasonably
deducible from the complaint.

Public use, as .an eminent domain concept, has now acquired an

expansive meaning to include any use that is of "usefulness, utility, or
advantage, or what is productive of general benefit [of the public]." If the
genuine public necessity-the very reason or condition as it were-
allowing, at the first instance, the expropriation of a private land ceases or
disappears, then there is no more cogent point for the government's
retention of the expropriated land. The same legal situation should hold if
the government devotes the property to another public use very much
different from the original or deviates from the declared purpose to
benefit another private person. It has been said that the direct use by
the state of its power to oblige landowners to renounce their productive
possession to another citizen, who will use it predominantly for that
citizen's own private gain, is offensive to our laws.

A condemnor should commit to use the property pursuant to the

purpose stated in the petition for expropriation, failing which it should file
another petition for the new purpose. If not, then it behooves the condemnor
to return the said property to its private owner, if the latter so desires. The
government cannot plausibly keep the property it expropriated in any
manner it pleases and, in the process, dishonor the judgment of
expropriation. This is not in keeping with the idea of fair play. 25 (Emphasis
supplied)

22
Barangay Sindalan, San Fernando Pampanga, rep. by Brgy. Capt. Gutierrez v. Court ofAppeals, supra
note 6 at 552.
23
657 Phil. 391 (2011).
24
Id. at 419, citing Heirs of Moreno v. Mactan-Cebu International Airport Authority, 503 Phil. 898, 912
(2005).
25
Id. at 418-419; citations omitted.
Separate Opinion 7 G.R. No. 248061

This notwithstanding, there is no clear and settled guidance in our cases

so as to determine what is "predominant" use for another's own private gain.
Rather, what is more compellingly abound in our jurisprudence is the doctrine
that the public use requirement is satisfied by the taking being premised on
some public advantage, convenience, or benefit.

However, it must be discerned that the grant of the authority to

expropriate is different from the propriety of the expropriation itself. As
initially mentioned, this case only concerns the issue of the constitutionality
of Sections 10 and 17 of RA 11212, which provisions must be examined
against the prevailing jurisprudential standard that public use is equal to
"whatever is beneficially employed for the general welfare." In this regard,
the propriety of the public use anent petitioner MORE Electric and Power
Corporation's (MORE) taking of respondent Panay Electric Company, Inc.'s
(PECO) specific properties is not yet at issue here. The assailed statutory
provisions only accord eminent domain power in favor of MORE, but the
actual exercise of such .power is still subject to judicial scrutiny in the
expropriation proceedings. Hence, perhaps in the proper case where the Court
is called to examine the expansive/narrow scope of the public use concept in
relation to a specific taking, the Court will be able to amply resolve this
quandary. That case may well be the appeal to this Court from the
expropriation proceedings involving PECO's properties.

Nonetheless, I already deem it proper to draw attention to the above

divergence of opinions anent the interpretation of "public use" in order to
magnify two points relevant to this case:

First, the broad definition of "public use" seems to create a practical

conundrum as to whether or not the propriety of an exercise of eminent
domain power, when delegated by the State to a franchisee, is still properly
a judicial function, or just a matter of the judiciary confirming the
determination already made by legislature.

To explain, implicit in the franchise grant is the advancement of public

interest. Conceptually, franchisees are given statutory privileges to conduct
the covered activities in their franchise for the benefit of the public. Thus,
when a franchisee is concomitantly conferred with an eminent domain power
to acquire private properties, any taking made under the legal cover of the
grantee's franchise will theoretically satisfy the requirement of public use.

At this juncture, it may not be amiss to point out that while the statutory
delegation of eminent domain power to franchisees does not dispense with the
need of filing expropriation proceedings before the court, the practical effect,
however, is that trial courts are put in an awkward position to defer to
Congress' will, else it be accused of frustrating the pursuits of the franchisee
who enjoys the imprimatur of the lawmaking body. In fact, it may also be

j
Separate Opinion 8 G.R. No. 248061

argued that the franchisee's taking under the cover of its franchise will always
carry some semblance of public benefit, regardless of the private benefit it
will gain.

To note, this scenario wherein private entities have been delegated

eminent domain powers in their respective franchises is not only attendant to
MORE, but also to other public utilities. To illustrate, Section 10 ofMORE's
franchise reads:

SECTION 10. Right of Eminent Domain. - Subject to the

limitations and procedures prescribed by law, the grantee is authorized
to exercise the right of eminent domain insofar as it may be reasonably
necessary for the efficient maintenance and operation of services. The
grantee is authorized to install and maintain its poles, wires, and other
facilities over and across public property, including streets, highways, forest
reserves, and other similar property of the Government of the Philippines,
its branches, or any of its instrumentalities. The grantee may acquire such
private property as is actually necessary for the realization of the
purposes for which this franchise is granted x x x: Provided, That proper
condemnation proceedings shall have been instituted and just compensation
paid[.]

x x x x (Emphases supplied)

To name a few, the above provision is akin to the following eminent

domain provisions in favor of electric distribution utilities embedded in their
respective franchises:

Law Franchisee Franchise purpose Eminent domain delegation

RA 11322 Cotabato SECTION 1. Nature SECTION 10. Right of Eminent
(April 17, Electric and Scope of Domain. - Subject to the
2019) Cooperative, . Franchise. - x x x to limitations and procedures
Inc.- construct, install, prescribed by law, the grantee
PPALMA establish, operate and is authorized to exercise the
maintain for public right of eminent domain
interest, a distribution insofar as it may be
system for the reasonably necessary for the
conveyance of electric efficient maintenance and
power to the end users operation of services. The
in the municipalities of grantee is authorized to install
Pikit, Pigcawayan, and maintain its poles, wires,
Aleosan, Libungan, and other facilities over and
Midsayap and across public property,
Alamada, Province of including streets, highways,
Cotabato, and its forest reserves, and other similar
neighboring suburbs. property of the Government of
the Philippines, its branches, or
any of its instrumentalities. The
grantee may acquire such
private property as is actually
necessary for the realization of
the purposes for which this
franchise is granted: Provided,
Separate Opinion 9 G.R. No. 248061

That proper condemnation

proceedings shall have been
instituted and just compensation
paid. (Emphases supplied)
RA 10637 C9tabato SECTION 1. Nature SECTION 9. Right of Eminent
(June 16, Light and and Scope of Domain. - Subject to the
2014) Power Franchise. - x x. x to limitations and procedures
Company construct, install, prescribed by law, the grantee
establish, operate and is authorized to exercise the
maintain for right of eminent domain
commercial purposes insofar as it may be
and 111 the public reasonably necessary for the
interest, a distribution efficient maintenance and
system for the operation of services. The
conveyance of electric grantee is authorized to install
power to the end-users and maintain its poles, wires and
in the City of Cotabato other facilities over and across
and portions of the public property, including
municipalities of Datu streets, highways, forest
Odin Sinsuat and reserves and other similar
Sultan Kudarat, both in property of the Government of
the Province of the Philippines, its branches or
Maguindanao. any of its instrumentalities. The
grantee may acquire such
private property as is actually
necessary for the realization of
the purposes for which this
franchise is granted: Provided,
That proper condemnation
proceedings shall have been
instituted and just compensation
paid. (Emphases supplied)
RA 10891 First Bay SECTION 1. Nature SECTION 9. Right of Eminent
(July 21, Power Corp. and Scope of Domain. - Subject to the
2016) Franchise. - x x x to limitations and procedures
construct, install, prescribed by law, the grantee
establish, operate and is authorized to exercise the
maintain for right of eminent domain
commercial purposes insofar as it may be
and 111 the public reasonably necessary for the
interest; a distribution efficient maintenance and
system for the operation of services. The
conveyance of electric grantee is authorized to install
power to the end users and maintain its poles, wires and
in the Municipality of other facilities over and across
Bauan, Province of public property, including
Batangas. streets, highways, forest
reserves and other similar
property of the Government of
the Philippines, its branches or
any of its instrumentalities. The
grantee may acquire such
private property as is actually
necessary for the realization of
the purposes for which this
franchise is granted: Provided,
That proper condemnation
Separate Opinion 10 G.R. No. 248061

proceedings shall have been

instituted and just compensation
paid. (Emphases supplied)
RA 9381 Angeles SECTION I. Nature SEC. 10. Right of Eminent
(March 9, Electric and Scope of Domain. - Subject to the
2007) Corporation Franchise. - x x x to limitations and procedures
construct, operate and prescribed by law, the grantee
maintain in the public is authorized to exercise the
interest and for right of eminent domain
commercial purposes, insofar as it may be
a distribution system reasonably necessary for the
for the conveyance of efficient maintenance and
electric power to the operation of services. The
end-users in the City of grantee is authorized to install
Angeles, Province of and maintain its poles, wires and
Pampanga. other facilities over and across
public property, including
streets, highways, forest
reserves and other similar
property of the Government of
the Philippines, its branches or
any of its instrumentalities. The
grantee may acquire such
private property as is actually
necessary for the realization of
the purposes for which this
franchise is granted: Provided,
That proper condemnation
proceedings shall have been
instituted and just compensation
paid. (Emphases supplied)
RA 10373 Olongapo SECTION 1. Nature SECTION 9. Right of Eminent
(March 1, Electricity and Scope of Domain. - Subject to the
2013) Distribution Franchise. - x x x to limitations and procedures
Company, construct, install, prescribed by law, the grantee
Inc. establish, operate and is authorized to exercise the
maintain for right of eminent domain
commercial purposes insofar as it may be
and in the public reasonably necessary for the
interest, a distribution efficient maintenance and
system for the operation of services. The
conveyance of electric grantee is authorized to install
power to the end-users and maintain its poles, wires and
in the City ofOlongapo other facilities over and across
and its suburbs. public property, including
streets, highways, forest
reserves and other similar
property of the Government of
the Philippines, its branches or
any of its instrumentalities. The
grantee may acquire such
private property as is actually
necessary for the realization of
the purposes for which this
franchise is granted: Provided,
That proper condemnation
proceedings shall have been

J
Separate Opinion 11 G.R. No. 248061

instituted and just compensation

paid. (Emphases supplied)

To my mind, when the exercise of eminent domain is necessary to

carry out the franchise, the taking is intermixed with the Congress' will.
As such, the judicial function of the courts in determining the propriety of
expropriation is somewhat constrained by an attitude oflegislative deference.
In Kela, Justice Thomas especially criticized the "almost insurmountable
deference to legislative conclusions that a use serves a 'public use,"' viz.:

A second line of this Court's cases also deviated from the Public
Use Clause's original meaning by allowing legislatures to define the scope
of valid "public uses." United States v. Gettysburg Electric R. Co., 160 U.
S. 668 (1896), involved the question whether Congress' decision to
condemn certain private land for the purpose of building battlefield
memorials at Gettysburg, Pennsylvania, was for a public use. Id., at 679-
680. Since the Federal Government was to use the lands in question, id., at
682, there is no doubt that it was a public use under any reasonable standard.
Nonetheless, the Court, speaking through Justice Peckham, declared that
"when the legislature has declared the use or purpose to be a public
one, its judgment will be respected by the courts, unless the use be
palpably without reasonable foundation." Id, at 680. As it had with the
"public purpose" dictum in Bradley, supra, the Court quickly incorporated
this dictum into its Public Use Clause cases with little discussion.
See, e.g., United States ex rel. TVA v. Welch, 327 U. S. 546, 552
(1946); Old Dominion Land Co. v. United States, 269 U.S. 55, 66 (1925).

There is no justification, however, for affording almost

insurmountable deference to legislative conclusions that a use serves a
"public use." To begin with, a court owes no deference to a legislature's
judgment concerning the quintessentially legal question of whether the
government owns, or the public has a legal right to use, the taken property.
Even under the "public purpose" interpretation, moreover, it is most
implausible that the Framers intended to defer to legislatures as to what
satisfies the Public Use Clause, uniquely among all the express provisions
of the Bill of Rights. We would not defer to a legislature's determination of
the various circumstances that establish, for example, when a search of a
home would be reasonable, see, e.g., Payton v. New York, 445 U. S. 573,
589-590 (1980), or when a convicted double-murderer may be shaclded
during a sentencing proceeding without on-the-record findings,
see Deck:v. Missouri, 544 U. S. _ (2005), or when state law creates a
property interest protected by the Due Process Clause, see, e.g., Castle
Rock v. Gonzales, post, at _; Board of Regents of State
Colleges v. Roth, 408 U. S. 564, 576 (1972); Goldberg v. Kelly, 397 U. S.
254, 262-263 (1970).

Still worse, it is backwards to adopt a searching standard of

constitutional review for nontraditional property interests, such as welfare
benefits, see, e.g., Goldberg, supra, while deferring to the legislature's
determination as to what constitutes a public use when it exercises the
power of eminent domain, and thereby invades individuals' traditional
rights in real property. The Court has elsewhere recognized "the overriding
respect for the sanctity of the home that has been embedded in our traditions
since the origins of the Republic," Payton, supra, at 601, when the issue is
only whether the government may search a home. Yet today the Court tells
Separate Opinion 12 G.R. No. 248061

us that we are not to "second-guess the City's considered judgments," ante,

at 18, when the issue is, instead, whether the government may take the
infinitely more intrusive step of tearing down petitioners' homes.
Something has gone seriously awry with this Court's interpretation of the
Constitution. Though citizens are safe from the government in their homes,
the homes themselves are not. Once one accepts, as the Court at least
nominally does, ante, at 6, that the Public Use Clause is a limit on the
eminent domain power of the Federal Government and the States,
there is no justification for the almost complete deference it grants to
legislatures as to what satisfies it. 26 (Emphases and underscoring supplied)

As Justice Thomas pointed out, with the prevailing legal regime, "when
the legislature has declared the use or purpose to be a public one, its judgment
will be respected by the courts, unless the use be palpably without
reasonable foundation." 27 However, with our expansive definition of public
use, where - in Justice O'Connor's words - "nearly any lawful use of real
property can be said to generate some incidental benefit to the public," 28
it would be quite difficult to tag any taking done under the cover of a franchise
as "unreasonable." Most probably, it would only be in extreme cases where
the taking is completely and wantonly without any public purpose that.
our courts can validly rule against the propriety of a franchisee's taking of
another's private property. In so doing, for as long as this wanton and
complete unreasonableness does not exist, a taking may be done to advance
private benefit.

This brings me to my second and final point: the expansive definition

of public use as mere taking for some public interest, purpose or benefit
appears to legitimize the regime of allowing franchisees to take private
properties, irrespective of the franchisee's private gain. As I have discussed,
this Court has yet to draw any clear delineation between the commingling of
private interests with public purposes when it comes to eminent domain
takings. Neither has our Court prohibited the delegation of eminent domain
powers to franchise holders albeit being private entities. In fact, the Court
recognizes that the power of eminent domain may be delegated "even to
private enterprises performing public services." 29

In this case, Associate Justices Marvic M.V.F. Leonen and Amy C.

Lazaro-Javier strikingly present the background facts which show that MORE
was intentionally benefited by Congress to the prejudice of PECO. PECO,
despite being the longstanding franchise holder of electric distribution in
Iloilo City for 96 years, has now been ousted from its statutory privilege to so
operate. As to whether or not PECO deserves to continue its franchise or
whether MORE is qualified as a new franchisee is clearly beyond the province
of the Court as it is a pure political question left to the wisdom of Congress.
However, more than the stripping of PECO's franchise, PECO-it is claimed

26
See Dissenting Opinion of Justice Thomas in Keio v. New London, supra note 9.
27
See id.
28
See Dissenting Opinion of Justice O'Connor in Keio v. New London, supra note 9.
29
Manapat v. Court ofAppeals, supra note 12, at 47.

J
Separate Opinion 13 G.R. No. 248061

- stands to lose its entire operation system, goodwill, and even employees
through an explicit statutory enactment which not only recognizes a new
franchisee but also enables the latter to practically take over PECO's business
at the cost of paying the fair market value of its assets. To this point, it may
be posited that while PECO may be able to realize "just" compensation, it is
effectively left as a shell corporation. Further, despite receiving the "fair
market value" of its properties, PECO would get paid much less than if it
openly deals with a buyer in the market. Unlike in judicial proceedings,
business and trade acumen may be utilized when one sells assets in the open
market. Also, it is pertinent to note that the "fair market value" of a former
franchisee's assets may be diluted in value since some of them may prove to
be un-utilizable by the owner considering that it had already been stripped of
the franchise, and thus, diminishing their future utility. Hence, in the hands of
the previous franchisee, the assets may be valued less at the time of the taking.

Nevertheless, in theory, PECO's precarious situation is actually

legitimized by our prevailing framework on eminent domain. Hypothetically
speaking, there is nothing legally prohibiting the government to delegate the
eminent domain power to a private entity embedded in its franchise, and in so
doing, allow the takeover of the properties of the previous franchisee upon the
reason that the taking is - in the language of our numerous franchise laws -
"actually necessary for the realization of the purposes for which this franchise
is granted."

In fine, up until our current paradigm on "public use" completely or

partially shifts, Section 10 - and its corollary provision, 30 Section 1731 ofRA
30
While Section 17 of RA 11212 is equally assailed in this petition, this provision merely provides for a
transitory period for PECO to continue its operations so as to ensure the uninterrupted supply of
electricity pending the takeover of MORE, as the new franchisee. To a certain extent, Section 17 is also
an offshoot of Section 10 in that it expressly qualifies that the transitory period granted in favor of PECO
"shall not prevent [MORE] from exercising the right of eminent domain over the distribution assets
existing at the franchise area as provided in Section IO of this Act."
31
Section 17. Transition of Operations. - In the public interest and to ensure uninterrupted supply of
electricity, the current operator, Panay Electric Company, Inc. (PECO), shall in the interim be authorized
to operate the existing distribution system within the franchise area, as well as implement its existing
power supply agreements with generation companies that had been provisionally or finally approved by
the ERC until the establishment or acquisition by the grantee of its own distribution system and its
complete transition towards full operations as determined by the ERC, which period shall in no case
exceed two (2) years from the grant of this legislative franchise.
Upon compliance with its rules, the ERC shall grant PECO the necessary provisional certificate of
public convenience and necessity (CPCN) covering such interim period. The applicable generation rate
shall be the pi-ovisional or final rate approved by the ERC.
This provisional authority to operate during the transition period shall not be construed as extending
the franchise of PECO after its expiration on January 18, 2019, and it shall not prevent the grantee from
exercising the right of eminent domain over the distribution assets existing at the franchise area as
provided in Section 10 of this Act. During such interim period, the ERC shall require PECO to settle the
full amount which the ERC has directed to refund to its customers in connection with all the cases filed
against it.
To reduce the length of the transition period, the ERC and all agencies issuing the requisite licenses
shall prioritize all applications relevant to the establishment and operation of the distribution system
under its franchise.
The grantee shall, as far as practicable and subject to required qualifications, accord preference to
hiring former employees of PECO upon commencement of business operations.
Separate Opinion 14 G.R. No. 248061

11212 - are in accord with subsisting doctrine, and hence, constitutional. This
pronouncement, however, is without prejudice to the outcome of the
expropriation proceedings where the propriety of MORE' s actual taking of
PECO's properties, in relation to the jurisprudential parameters of public use
(which may or may not be revisited), may be raised.

ESTELA A:t~BERNABE
Senior Associate Justice

CERTIFIED TRUE COPY

~ -·- -
~1tl('0. AR!CHETA
Clerk of Court En Banc
Supreme Court

An information dissemination campaign regarding public services and operations of the grantee
shall be made to all end-users in the franchise area.
The grantee and PECO shall jointly ensure that employees not hired by the grantee shall receive all
separation and/or retirement benefits they are entitled to in accordance with applicable laws.
The DOE shall, during the transition, ensure that there will be uninterrupted supply of electricity in
the existing franchise area.