The Third Chief Justices Roundtable on Environment
“ASEAN’s Environmental Challenges and Legal Responses”
November 15-18, 2013
Royal Orchid Sheraton, Si Phraya Rd., Bangkok, Thailand
Benefits and Challenges of the
New Environmental Rules of Procedure
By: Hon. Diosdado M. Peralta
November 17, 2013, Bangkok, Thailand
As the degradation of the environment worsens and waits for no one,
one must realize at some point that drastic circumstances call for innovative
solutions. One way the Philippines has enhanced its fight for environmental
justice is by increasing the involvement of the judiciary, where such a move
in many other jurisdictions would be seen as a compromise of the judiciary’s
role and violation of separation of powers.1
According to the more traditional definitions of separation of powers,
judicial branches of government are independent as the adjudicator of cases
and controversies.
Accordingly, the judiciary is typically passive on
policymaking matters. Simply put, a court does not act on its own; an actual
controversy involving rights which are legally demandable and enforceable
must be presented before a court in order for the court to act.2 In the
Philippines, it took a revolutionary Constitution and the initiative of the
Supreme Court through its former Chief Justice, Reynato S. Puno, to
effectuate proactive solutions emanating from the judiciary, breaking away
from this traditional mold.3
The direct involvement of addressing environmental justice on the
part of the Supreme Court is primed to be one of the better examples of
1
A Brief Overview: The Environmental Initiatives of the Philippine Supreme Court, Hon. Diosdado
M. Peralta.
2
1987 Constitution, Art. VIII, Sec.1.
3
A Brief Overview: The Environmental Initiatives of the Philippine Supreme Court, Hon. Diosdado
M. Peralta.
2
implementing the Johannesburg Principles,4 precisely because it invokes an
authority that is beyond its ordinary adjudicative powers.5
The provisions of this newest version of our Philippine Constitution
tell of the people’s will to achieve environmental justice. When deciding on
the scope of judicial power, the framers of the 1987 Philippine Constitution
believed that the Supreme Court was the institution most fit to protect the
rights of the people. Thus, under Article VIII of the Philippine Constitution,
the Supreme Court has been given the authority to promulgate rules in the
protection and enforcement of constitutional rights,6 including the right to a
balanced and healthful ecology. Verily, a key environmental provision in the
Philippine Constitution states:
The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and
harmony of nature.7
In the landmark case of Oposa v. Factoran,8 wherein the Supreme
Court changed the face of environmental litigation by holding that
representatives of minors and generations yet unborn had legal standing to
bring suit. The plaintiffs in said case sought to enjoin the Secretary of the
Department of Environment and Natural Resources from issuing new timber
license agreements and cancel existing ones.9 The Supreme Court held that
the right to protect the environment was both a public right and a private
right for those who were directly injured by environmental harm.10
4
The Johannesburg Principles on the Role of Law and Sustainable Development were adopted in
Johannesburg, South Africa, in 2002. The Principles focus on tackling environmental challenges through
improving countries’ legal systems. Signatories to the Principles resolve to improve the level of public
participation in environmental decision-making, access to justice for the settlement of environmental
disputes and the defense and enforcement of environmental rights, and public access to relevant
information. They also resolve to improve the capacity of those involved in the process of promoting,
implementing, developing and enforcing environmental law, such as judges, prosecutors, and legislators
(http://www.opengovguide.com/standards-and-guidance/un-environment-programme-johannesburgprinciples-on-the-role-of-law-and-sustainable-development/).
5
A Brief Overview: The Environmental Initiatives of the Philippine Supreme Court, Hon. Diosdado
M. Peralta.
6
1987 Constitution, Sec. 5, par. 5.
7
1987 Constitution, Art. II, Sec. 17.
8
224 SCRA 792 (1993).
9
Id.
10
Id.
3
Subsequently, the Supreme Court further carved out a proactive role
in environmental protection following the rendering of a breakthrough
remedy. In the case of the Metropolitan Manila Development Authority
(MMDA) v. Concerned Residents of Manila Bay,11 the Supreme Court issued
for the first time a continuing mandamus through which the MMDA was
compelled to perform its duties in cleaning and preserving a polluted Manila
Bay, and was obligated to submit quarterly progress reports to the Court for
monitoring. This extraordinary ruling was adopted from the famous Indian
case, M.C. Mehta v. Union of India, which introduced the innovation of
continuing mandamus.12
Due to the special nature of the remedy, the Supreme Court can now
monitor the execution of its judgment until it is fully satisfied. Conversely,
since the cleaning of Manila Bay is an arduous and lengthy task, the
obligations under the continuing mandamus, as well as the Supreme Court’s
involvement in seeing through its execution, is authoritative for as long as
the judgment is not fully satisfied; this means that the cleanup process may
even outlive the very Supreme Court Justices on the bench who decided the
case. To facilitate the execution of the MMDA decision, the Supreme Court
recently created the Manila Bay Advisory Committee, headed by Associate
Justice Presbitero J. Velasco, Jr., author of the MMDA decision.13
The cases of Oposa and MMDA are testaments to the Supreme
Court’s commitment to environmental justice.
The innovation in these
rulings - a breakaway from the traditional interpretations of legal standing,
and an expansion of the Supreme Court’s role in monitoring the execution of
judgment – reflect the notion that members of the Supreme Court have
embraced a more proactive stance in environmental enforcement.
11
See G.R. Nos. 171947-48, December 18, 2008, 574 SCRA 661.
See 4 SC 463 (1987).
13
A Brief Overview: The Environmental Initiatives of the Philippine Supreme Court, Hon. Diosdado
M. Peralta.
12
4
The Supreme Court had also to address the concern of increasing and
facilitating access to the courts for those looking to enforce environmental
rights. In 2009, then Chief Justice Puno and the rest of the Supreme Court
organized a forum for all stakeholders to environmental enforcement. The
600 participants in the Forum on Environmental Justice included executive
and legislative officials, judges, prosecutors, environmental experts, nongovernmental organizations (NGOs) and People’s organizations, the
academe, diplomatic corps and development partners.
During the Forum, workshops were designed to collect and share as
much information about the impediments to environmental justice in our
courts, whether they were related to the incompetence or lack of will on the
part of judges, docket congestion, or general lack of knowledge on the
subject.
After the information was processed, the workshop groups
endorsed recommendations to the Supreme Court based on a draft special
rule of procedure for environmental cases, which was created by a Technical
Working Group.14
Following the successful Forum, the Sub-Committee on the Rules of
Procedure
for
Environmental
Cases
convened
to
review
these
recommendations and finalize a set of procedural rules specifically
applicable to environmental cases.
After a year of intense study into our
existing procedural rules and the best practices of other jurisdictions, the
Supreme Court promulgated the Rules of Procedure for Environmental
Cases on April 13, 2010.15
The Rules of Procedure for Environmental Cases aim to achieve the
following objectives:
14
A Brief Overview: The Environmental Initiatives of the Philippine Supreme Court, Hon. Diosdado
M. Peralta.
15
Id.
5
a) To protect and advance the constitutional rights of the people to a
balanced and healthful ecology;
b) To provide a simplified, speedy and inexpensive procedure for the
enforcement of environmental rights and duties recognized under the
Constitution, existing laws, rules and regulations, and international
agreements;
c) To introduce and adopt innovations and best practices, ensuring the
effective enforcement of remedies and redress for violation of
environmental laws; and
d) To enable the courts to monitor and exact compliance with orders and
judgments in environmental cases.16
In meeting these objectives, the following guidelines are vital: (1) the
Rules must reflect constitutional and jurisprudential concepts of liberalized
standing requirements for plaintiffs in environmental suits; (2) the Rules
[must] facilitate access to courts by providing for litigation tools, such as
citizen’s suits, and anti-Strategic Lawsuits Against Public Participation
(SLAPP) provisions; (3) the Rules [must] shape procedural elements of
environmental litigation to implement the basic tenets of the precautionary
principle; and (4) the Rules must provide other innovations deemed
necessary for the proper administration of environmental justice.17
Here are some of the highlights of these Environmental Rules. Their
intricacies, details, and application, however, will be discussed by my
colleagues in their respective sessions.
First, the civil procedure for environmental cases is patterned after
our existing summary procedure in order to abbreviate environmental
litigation. In the Philippines, the existing legal structure for civil, criminal
and administrative cases - whether in the form of procedural rules, scope of
authority and jurisdiction of the courts, and other elements such as case
prioritization or management – are not tailored to address the complexities
of environmental legal claims. Prior to the formulation of the Rules of
Procedure for Environmental Cases, regular procedure under the Rules of
Court and Rules of Procedure (civil and criminal) governed such cases.
16
Rules of Procedure for Environmental Cases, Rule 1, Sec. 3.
See The Rationale and Annotation to the Rules of Procedure for Environmental Cases, April 10,
2010, p. 66.
17
6
There was no mandate for judges to prioritize environmental cases, and the
length of potential litigation under allowable practices, such as wide use of
several motions, and longer periods to file motions and responses ran
contrary to the interests of addressing environmental harm immediately.
Presently, the Environmental Rules allow for the filing of very few
pleadings and motions, and generally prohibit any other. The time periods
for filing, responding or ruling on motions are also abbreviated in the
interest of expediency.
Second, the Environmental Rules also provide for citizen suits,18
which is our version of public interest litigation. The doctrine of standing in
Philippine jurisprudence, although groundbreaking, is merely the catalyst of
a greater concept: public participation in environmental enforcement. If,
indeed, the people have enforceable environmental rights, then the legal
system must give the people a venue to protect these rights. One such
mechanism is through the use of citizen suits.19
Moreover, Citizen suits are an affirmation of the doctrine of
intergenerational equity as laid down in the case of Oposa v. Factoran20 I
earlier mentioned. Liberalized legal standing was allowed in said case, that
is, representatives of minors and generations yet unborn were allowed to
seek justice from the courts for deforestation activities though no personal
damage had been rendered unto them. Citizen suits allow any Filipino
person to file on behalf of the present and future generations for the
enforcement of rights or obligations under environmental laws.
Thus, the Rules of Procedure for Environmental Cases have been
widely used by environmental groups and individuals in protecting the
environment and in asserting their environmental rights.
18
Rules of Procedure for Environmental Cases, Rule 2, Sec. 5. See also Rule 5, Sec. 1.
See The Rationale and Annotation to the Rules of Procedure for Environmental Cases, April 10,
2010, p. 68.
20
Supra note 8.
19
7
Data of the Supreme Court shows that more than twenty (20) Writ of
Kalikasan petitions have been filed before the Court involving a wide range
of cases. Being priority cases, these petitions are tackled by the Court En
Banc. After finding sufficient basis, the Court issues the writ prayed for and
refers the case to the Court of Appeals for reception of evidence and
eventual rendition of its decision. Numerous cases have also been filed
before the First and Second Level Courts21 that were designated as
Environmental Courts, or sometimes referred to as “Green” Courts. Cases
range from Citizen suits, ordinary civil suits and criminal cases, which are
now pending trial before their respective courts.
The Rules of Procedure for Environmental Cases also provide for an
Environmental Protection Order as a remedial measure, which when issued
by the court can compel the adverse party to perform specific acts or cease
and desist from harmful activities.22
Cases affecting the environment have a fundamental sense of urgency.
Environmental threats, as well as existing environmental damage,
necessitate an immediate relief, if further damage is to be averted. For this
purpose, the Rules provide for the issuance of an Environmental Protection
Order (EPO),23 which is defined under its provision as:
Environmental protection order (EPO) refers to an order issued by the
court directing or enjoining any person or government agency to perform
or desist from performing an act in order to protect, preserve, or
rehabilitate the environment.24
From the foregoing definition, it is clear that the EPO may be
employed to perform the rules of a prohibitory injunction and a mandatory
21
First level courts are the Municipal Trial Courts, Municipal Circuit Trial Courts and Municipal
Trial Courts in Cities, while the Second level courts are the Regional Trial Courts.
22
Rules of Procedure for Environmental Cases, Rule 1, Sec. 4 (d). See also Rule 2, Sec. 8.
23
See The Rationale and Annotation to the Rules of Procedure for Environmental Cases, April 10,
2010, p. 75.
24
Rules of Procedure for Environmental Cases, Rule 7, Rule 1, Sec. 4, par. e.
8
injunction, empowering the court with ample discretion and means to
appropriately address the environmental case before it.25
Perhaps the key feature of these Rules is the Writ of Kalikasan.26 The
term kalikasan means “nature” in Pilipino. A person representing affected
communities can apply for the writ where the magnitude of environmental
damage extends to prejudice to life, health, or property or inhabitants in two
or more cities or provinces.27 The Court in this special civil action may
render relief, the scope of which is broad enough to encompass a slew of
creative means necessary for the preservation, protection or rehabilitation of
the environment. The writ is intended to provide a stronger defense for
environmental
rights
through
judicial
efforts
where
institutional
arrangements of enforcement, implementation and legislation have fallen. It
seeks to address the potentially exponential nature of large-scale ecological
threats.28
Another extraordinary remedy is the Writ of Continuing Mandamus,29
which applies and incorporates the ruling in the landmark case of Metro
Manila Development Authority (MMDA) v. Concerned Residents of
Manila,30 which case was coincidentally the ponencia of one of our
delegates, Associate Justice Presbitero J. Velasco, Jr., who I call “the Father
of Continuing Mandamus.”
As a special civil action, the Writ of Continuing Mandamus may be
availed of to compel the performance of an act specifically enjoined by law.
It allows the court to retain jurisdiction after judgment, in order to ensure the
25
See The Rationale and Annotation to the Rules of Procedure for Environmental Cases, April 10,
2010, p. 75-76.
26
Rules of Procedure for Environmental Cases, Rule 7, Sec. 1.
27
See The Rationale and Annotation to the Rules of Procedure for Environmental Cases, April 10,
2010, p. 133.
28
Id. at 78-79.
29
Rules of Procedure for Environmental Cases, Rule 8, Sec. 1.
30
Supra note 11.
9
successful implementation of the reliefs mandated under the court’s
decision.31
The Writ of Continuing Mandamus commands a party to execute
judgment and perform acts for an unlimited period up until judgment is
satisfied; the court can monitor, or direct a government agency to monitor
the execution of the judgment through whatever means necessary, including
the submission of periodic progress reports to the Court. One concrete
example is when the Court created the Manila Bay Advisory Committee
(MBAC) in order to properly monitor the directives in the MMDA ruling.
The Rules of Procedure for Environmental Cases also adopted a
provision prohibiting Strategic Lawsuits Against Public Participation or
SLAPP,32 which is a concept common in the laws of several American
States.
The Rules recognize that formidable legal challenges may be
mounted against those who seek to enforce environmental law, or to assert
environmental rights.
These legal challenges may be pre-emptive in
character and may be done in order to “chill” the latter.33 In this light, the
Rules make available a formidable defense in the SLAPP provisions. If
invoked successfully, it may allow for payment of litigation costs and
damages to the one enforcing environmental laws, as well as dismissal of
any frivolous litigation instigated against them for the sole purpose of
vexation or harassment, such as damages or defamation suits.
There is also an evidentiary provision in the Environmental Rules
which incorporates the precautionary principle.34
The precautionary
principle bridges the gap in cases where scientific certainty and factual
findings cannot be achieved. By applying the precautionary principle, the
31
See The Rationale and Annotation to the Rules of Procedure for Environmental Cases, April 10,
2010, p. 142.
32
Rules of Procedure for Environmental Cases, Rule 6, Sec. 1.
33
See The Rationale and Annotation to the Rules of Procedure for Environmental Cases, April 10,
2010, p. 130.
34
Rules of Procedure for Environmental Cases, Rule 20, Sec. 1.
10
court may construe a set of facts as warranting either judicial action or
inaction, with the goal of preserving and protecting the environment. In
effect, the precautionary principle shifts the burden of evidence of harm
away from those likely to suffer the harm unto those desiring to change the
status quo. An application of the precautionary principle to the rules on
evidence will enable courts to tackle future environmental problems before
ironclad scientific consensus emerges. This essentially requires the court to
favor the environment in claims where there is no scientific certainty but
mere plausibility that the alleged activities will cause serious and irreversible
environmental damage.
Challenges:
The inescapable reality, however, is that cooperation from the
different branches of Government must be achieved in order to successfully
litigate and prosecute environmental cases.
Moreover, the inherent
tediousness and uncertainty of environmental science at times impede the
ability of our enforcers, prosecutors and judges to satisfactorily process
environmental matters and render justice.
Following the promulgation of the Rules of Procedure for
Environmental Cases, the Supreme Court implemented a judicial education
program, through the Philippine Judicial Academy (PhilJA), to those key
individuals who need to be well-informed of the new Rules, specifically a
nationwide capacity-building program for judges and other sectors, such as
prosecutors, clerks of court, public attorneys, law enforcers, the civil sector
and employees of government agencies regulating environmental matters.
Just last November 13, 2013, the Supreme Court, in partnership with
several organizations, launched the Citizen’s Handbook on Environmental
Justice. The handbook was prepared by the Philippine Judicial Academy in
cooperation with the Program Management Office of the Supreme Court and
11
was made possible through the generous support of the United Nations
Development Programme (UNDP) and the United States Agency for
International Development (USAID). As a practical guide, the handbook
aims to educate and apprise the public with information on their
environmental rights as well as the legal and special remedies under the
Rules on Procedure for Environmental Cases.
Hopefully, through the continuous efforts of the Supreme Court and
the different branches of our Government, coupled with advances in science
and technology, the prosecution of Environmental Cases would become
more accessible and more effective than ever before. As I said in a recently
concluded symposium,35 I believe that an increase in inter-nation
conventions and joint environmental campaigns is essential to safeguarding
and perpetuating a well-balanced, healthy, and sustainable bio-diversity in
our planet. A healthy ecology is not only essential to the present generation,
but it is a heritage and a birthright that should be preserved and nourished
for the future generations to come. If we achieve this, we and the future
generations can always say or even sing to each other, “What a wonderful
world.”
Thank you, Salamat Po.
Kob Kun Mak Krab.
35
Marine Pollution Exercise 2013, hosted by the Republic of Indonesia, June 24-27, 2013.