PJJ Vol. 9, Issue 28 July-December 2007

The PHILJA JULY-DECEMBER 2007 VOL. 9, ISSUE NO. 28 UDICIAL OURNAL The PHILJA JULY-DECEMBER 2007 VOL. 9, ISSUE NO. 28 UDICIAL OURNAL A SIAN J USTICES F OR UM ORUM ONMENT : ON THE E NVIR NVIRONMENT S HARING E XPERIENCES TO S TRENGTHEN E NVIR ONMENT AL NVIRONMENT ONMENTAL A DJUDICA TION IN A SIA DJUDICATION I. S PEECHES II. L ECTURES ii iii T he PHILJ A JJudicial udicial JJour our nal PHILJA ournal The PHILJA Judicial Journal is published twice a year by the Research, Publications and Linkages Office of the Philippine Judicial Academy (PHILJA). The Journal features articles, lectures, research outputs and other materials of interest to members of the Judiciary, particularly judges, as well as law students and practitioners. The views expressed by the authors do not necessarily reflect the views of either the Academy or its editorial board. Editorial and general offices are located at PHILJA, 3rd Floor, Centennial Building, Supreme Court, Padre Faura St., Manila. Tel. No.: 552-9524 Telefax No.: 552-9628 Email: research_philja@yahoo.com; philja@sc.judiciary.gov.ph CONTRIBUTIONS . The PHILJA Judicial Journal invites contributions. Please include author’s name and biographical information. The editorial board reserves the right to edit the materials submitted for publication. Copyright © 2007 by The PHILJA Judicial Journal. All rights reserved. For more information, please visit the PHILJA website at http://philja.judiciary.gov.ph. iv SUPREME COURT OF THE PHILIPPINES CHIEF JUSTICE Hon. REYNATO S. PUNO ASSOCIATE JUSTICES Hon. LEONARDO A. QUISUMBING Hon. CONSUELO YNARES-SANTIAGO Hon. ANGELINA SANDOVAL-GUTIERREZ Hon. ANTONIO T. CARPIO Hon. MA. ALICIA AUSTRIA MARTINEZ Hon. RENATO C. CORONA Hon. CONCHITA CARPIO MORALES Hon. ADOLFO S. AZCUNA Hon. DANTE O. TINGA Hon. MINITA V. CHICO-NAZARIO Hon. PRESBITERO J. VELASCO, Jr. Hon. ANTONIO EDUARDO B. NACHURA Hon. RUBEN T. REYES Hon. TERESITA J. LEONARDO-DE CASTRO COURT ADMINISTRATOR Hon. ZENAIDA N. ELEPAÑO DEPUTY COURT ADMINISTRATORS Hon. JOSE P. PEREZ Hon. REUBEN P. DE LA CRUZ CLERK OF COURT Atty. MA. LUISA D. VILLARAMA ASSISTANT COURT ADMINISTRATORS Atty. ANTONIO H. DUJUA Judge NIMFA C. VILCHES Atty. JOSE MIDAS P. MARQUEZ ASSISTANT CLERK OF COURT Atty. FELIPA B. ANAMA DIVISION CLERKS OF COURT Atty. ENRIQUETA E. VIDAL Atty. LUDICHI Y. NUNAG Atty. LUCITA A. SORIANO v PHILIPPINE JUDICIAL ACADEMY Board of Trustees Hon. REYNATO S. PUNO Chief Justice Chair Hon. LEONARDO A. QUISUMBING Senior Associate Justice, Supreme Court Vice Chair Members Hon. AMEURFINA A. MELENCIO HERRERA Chancellor Hon. ZENAIDA N. ELEPAÑO Court Administrator Hon. CONRADO M. VASQUEZ, Jr. Presiding Justice, Court of Appeals Hon. EDILBERTO G. SANDOVAL Presiding Justice, Sandiganbayan Hon. ERNESTO D. ACOSTA Presiding Justice, Court of Tax Appeals Hon. ANTONIO M. EUGENIO, Jr. President, Philippine Judges Association Hon. MARIA FILOMENA D. SINGH Presiding Judge, MeTC Branch 31, Quezon City Dean MARIANO F. MAGSALIN, Jr. President, Philippine Association of Law Schools Executive Officials Hon. AMEURFINA A. MELENCIO HERRERA Hon. JUSTO P. TORRES, Jr. Chancellor Vice Chancellor Hon. DELILAH V. MAGTOLIS Executive Secretary Heads of Offices Hon. JUSTO P. TORRES, Jr. Administrative and Finance Office Hon. DELILAH VIDALLON-MAGTOLIS Academic Affairs Office Associate Dean SEDFREY M. CANDELARIA Research, Publications and Linkages Office Hon. BERNARDO T. PONFERRADA Judicial Reforms Office Academic Council Hon. AMEURFINA A. MELENCIO HERRERA Chair Dean PACIFICO A. AGABIN Prof. RUBEN F. BALANE Constitutional Law Civil Law Hon. ALFREDO L. BENIPAYO Remedial Law Hon. EDILBERTO G. SANDOVAL Criminal Law Hon. ZENAIDA N. ELEPAÑO Court Management Hon. HILARION L. AQUINO Ethics and Judicial Conduct Dean CESAR L. VILLANUEVA Commercial Law Dr. PURIFICACION V. QUISUMBING International and Human Rights Law Fr. RANHILIO C. AQUINO Jurisprudence and Legal Philosophy Prof. MYRNA S. FELICIANO Legal Method and Research Associate Dean SEDFREY M. CANDELARIA Special Areas of Concern Atty. EMMANUEL L. CAPARAS Court Technology Prof. ALFREDO F. TADIAR Alternative Dispute Resolution Hon. JAINAL D. RASUL Shari’a and Islamic Jurisprudence Judicial Reforms Group Hon. AMEURFINA A. MELENCIO HERRERA Presiding Officer vi Justice Ameurfina A. Melencio Herrera Chancellor Prof. Sedfrey M. Candelaria Editor in Chief Editorial and Research Staff Atty. Ma. Melissa Dimson-Bautista Arsenia M. Mendoza Armida M. Salazar Jocelyn D. Bondoc Ronald Paz Caraig Christine A. Ferrer Joanne Narciso-Medina Sarah Jane S. Salazar Charmaine C. Saltivan Jeniffer P. Sison Circulation and Support Staff Romeo A. Arcullo Lope R. Palermo Daniel S. Talusig Printing Services Leticia G. Javier and Printing Staff VOLUME 9 ISSUE NO. 28 JULY-DECEMBER 2007 THE PHILJ A JUDICIAL JOURN AL PHILJA JOURNAL CONTENTS OFFICIALS OF THE SUPREME COURT OF THE PHILIPPINES ...... v OFFICIALS OF THE PHILIPPINE JUDICIAL ACADEMY .................. vi I. SPEECHES GREETINGS Ambassador Curtis S. Chin ........................................................ 1 REMARKS Presiding Justice Sobchock Sukharomna ............................... 6 UNDER ONE HEAVEN ABOVE ONE EARTH Chief Justice Reynato S. Puno .................................................. 9 II. LECTURES JUDICIAL ACTIVISM AND THE ROLE OF GREEN BENCHES IN INDIA Chief Justice K.G. Balakrishnan ............................................... 16 ESTABLISHING GREEN BENCHES IN THAILAND Presiding Justice Sobchock Sukharomna .............................. 32 OPERATING AN ENVIRONMENTAL COURT: LESSONS FROM AUSTRALIA Justice Brian J Preston .................................................................... 36 CONTENTS STANDING TO SUE IN THE PHILIPPINES: RIGHT TO A CLEAN ENVIRONMENT FOR THE UNBORN Justice Adolfo S. Azcuna .............................................................. 56 ROLE OF EXPERT WITNESSES AND CONCURRENT EVIDENCE IN ENVIRONMENTAL ADJUDICATION Justice Brian J Preston .................................................................... 71 CLASS ACTIONS IN INDONESIA Judge Andriani Nurdin ................................................................. 82 PRACTICAL REMEDIES AND PUBLIC INTEREST LITIGATION: YAMUNA RIVER CLEANING PROJECT Chief Justice Vijender Jain ........................................................... 92 REMEDIES AND SANCTIONS IN ENVIRONMENTAL CASES Judge Kathie A. Stein ................................................................... 108 FRAMEWORK FOR STRENGTHENING ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES Justice Consuelo Ynares-Santiago ............................................118 STRENGTHENING COURT CAPACITY ON ENVIRONMENTAL ADJUDICATION Justice Ameurfina A. Melencio Herrera ............................... 152 CONTENTS ESTABLISHING GREEN BENCHES IN THAILAND Presiding Justice Sobchock Sukharomna I. INTRODUCTION ................................................................................ 32 II. HISTORY OF THE THAI GREEN BENCHES ............................... 33 III. PROBLEMS AND DIFFICULTIES ..................................................... 33 IV. FUTURE OF THE THAI GREEN BENCHES ................................ 34 OPERATING AN ENVIRONMENTAL COURT: LESSONS FROM AUSTRALIA Justice Brian J Preston I. LAND AND ENVIRONMENT COURT IN OUTLINE ............... 38 II. LAND AND ENVIRONMENT COURT IN THE COURT HIERARCHY ......................................................... 39 III. HISTORY OF LAND AND ENVIRONMENT COURT ............ 39 IV. LAND AND ENVIRONMENT COURT JURISDICTION ........... 41 V. COURT PERSONNEL ....................................................................... 42 VI. EXERCISE OF JURISDICTION ........................................................ 42 VII. MULTI-DOOR COURTROOM ................................................... 43 VIII. ALTERNATIVE DISPUTE RESOLUTION PROTOCOLS ......... 44 IX. ALTERNATIVE DISPUTE RESOLUTION REVIEW ................... 44 X. CASE FLOW MANAGEMENT ........................................................ 45 XI. PRACTICE NOTES IMPLEMENT DIFFERENTIAL CASE MANAGEMENT (DCM) .................... 45 CONTENTS I. SPEECHES GREETINGS Ambassador Curtis S. Chin I. INTRODUCTORY COMMENTS ...................................................... 1 II. COMMON ENVIRONMENTAL CHALLENGES ........................... 2 III. ASIAN DEVELOPMENT BANK’S EFFORTS TO PROMOTE GOOD ENVIRONMENTAL STEWARDSHIP ................................ 4 IV. CONCLUSION .................................................................................... 4 REMARKS Presiding Justice Sobchock Sukharomna .............................. 6 UNDER ONE HEAVEN ABOVE ONE EARTH Chief Justice Reynato S. Puno ................................................. 9 II. LECTURES JUDICIAL ACTIVISM AND THE ROLE OF GREEN BENCHES IN INDIA Chief Justice K.G. Balakrishnan I. INTRODUCTION ................................................................................ 16 II. THE ROLE OF THE COURTS IN INDIA ..................................... 20 CONTENTS XII. DIFFERENTIAL CASE MANAGEMENT: LITIGATION PLAN ........................................................................ 45 XIII. PRE-HEARING ATTENDANCE OPTIONS .............................. 46 XIV. HEARING OPTIONS ..................................................................... 46 XV. ACHIEVING OBJECTIVES OF COURT ADMINISTRATION ................................................. 47 XVI. BENEFITS OF LAND AND ENVIRONMENT COURT: “DESIRABLE DOZEN” .................................................................. 47 XVII. CONCLUSION ................................................................................ 55 STANDING TO SUE IN THE PHILIPPINES: RIGHT TO A CLEAN ENVIRONMENT FOR THE UNBORN Justice Adolfo S. Azcuna .............................................................. 56 ROLE OF EXPERT WITNESSES AND CONCURRENT EVIDENCE IN ENVIRONMENTAL ADJUDICATION Justice Brian J Preston I. ENVIRONMENTAL PROBLEMS REQUIRE EXPERT EVIDENCE ...................................................................... 73 II. NATURE OF ENVIRONMENTAL PROBLEMS ......................... 73 III. FUNCTION OF EXPERT EVIDENCE ........................................ 74 IV. EXPERT EVIDENCE IN ADVERSARIAL SYSTEMS ............... 74 V. PROBLEMS WITH EXPERT EVIDENCE .................................... 74 VI. INTEGRITY OF EXPERT EVIDENCE ........................................ 74 VII. COMPREHENSIBILITY OF EVIDENCE ..................................... 75 CONTENTS VIII. EFFICIENCY .................................................................................... 76 IX. RESPONSES TO THE PROBLEMS ............................................. 76 X. RULES OF COURT AND CODE OF CONDUCT ................. 76 XI. JOINT CONFERENCING OF EXPERTS ................................... 78 XII. CONCURRENT EVIDENCE ...................................................... 78 XIII. BENEFITS OF CONCURRENT EVIDENCE ........................... 79 XIV. PARTIES’ SINGLE EXPERT ........................................................ 79 XV. USING COURT’S OWN EXPERTISE ...................................... 80 XVI. APPROPRIATE SELECTION OF EVIDENCE METHOD ................................................................ 80 CLASS ACTIONS IN INDONESIA Judge Andriani Nurdin I. DEFINITION .................................................................................... 83 II. BENEFITS ......................................................................................... 84 III. LEGAL BASES ................................................................................. 85 IV. PERCEPTIONS THAT NEED TO BE CLARIFIED ....................... 86 V. CLASS ACTION SUITS ................................................................ 87 VI. REFLECTION ON THE IMPLEMENTATION OF CLASS ACTIONS IN INDONESIA ............................................................ 88 VII. PROCEDURAL STAGES ................................................................... 90 VIII. REGULATION OF THE SUPREME COURT OF THE REPUBLIC OF INDONESIA, NUMBER 1 OF 2002 CONCERNING CLASS ACTION PROCEDURES ..................... 90 CONTENTS PRACTICAL REMEDIES AND PUBLIC INTEREST LITIGATION: YAMUNA RIVER CLEANING PROJECT Chief Justice Vijender Jain I. INTRODUCTION ................................................................................ 93 II. CAUSES OF POLLUTION ................................................................. 95 III. COURT’S INTERVENTION ............................................................... 97 REMEDIES AND SANCTIONS IN ENVIRONMENTAL CASES Judge Kathie A. Stein I. CONTEXT FOR REMEDIES ........................................................... 108 II. PURPOSE OF REMEDIES ................................................................ 109 III. LEGAL BASIS OF REMEDIES ........................................................ 110 IV. TYPES OF REMEDIES ..................................................................... 111 V. CONCLUSION REGARDING ENVIRONMENTAL REMEDIES ...................................................................................... 117 FRAMEWORK FOR STRENGTHENING ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES Justice Consuelo Ynares-Santiago I. INTRODUCTION ............................................................................... 119 II. BACKGROUND ON THE FRAMEWORK ...................................... 122 III. GUIMARAS OIL SPILL: AN EXAMPLE OF AN ENVIRONMENTAL CASE ............................................................... 125 IV. SPECIFIC ISSUES AROUND ENVIRONMENTAL CASES.......... 128 V. INSTITUTIONAL AND ADMINISTRATIVE ISSUES .................. 140 CONTENTS VI. CAPACITY BUILDING FOR JUDGES ........................................ 143 VII. REMEDIES ..................................................................................... 144 VIII. SUMMARY AND CONCLUSION ............................................... 147 ANNEX: FRAMEWORK FOR IMPROVING ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES ................................................ 149 STRENGTHENING COURT CAPACITY ON ENVIRONMENTAL ADJUDICATION Justice Ameurfina A. Melencio Herrera I. ACTION AGENDA FOR CAPACITY BUILDING OF PHILIPPINE JUDGES ................................................................. 152 II. GREENING THE JUDICIARY .......................................................... 158 III. OPTIONS ............................................................................................ 162 IV. CONCLUSION .................................................................................. 164 Greetings ∗ Ambassador Curtis S. Chin∗∗ I. INTRODUCTORY COMMENTS ...................................................... II. COMMON ENVIRONMENTAL CHALLENGES .......................... III. ASIAN DEVELOPMENT BANK’S EFFORTS TO PROMOTE GOOD ENVIRONMENTAL STEWARDSHIP ................................ IV. CONCLUSION .................................................................................... 1 2 4 4 I. I NTR ODUCT OR Y C OMMENTS NTRODUCT ODUCTOR ORY Honorable Chief Justice Reynato S. Puno, honorable justices and judges from throughout the Asia-Pacific region, distinguished guests and conference participants. ∗ Delivered at the Asian Justices Forum on the Environment: “Sharing Experiences to Strengthen Environmental Adjudication in Asia” on July 5, 2007 at the Edsa Shangri-La Hotel, Manila, Philippines. ∗∗ President George W. Bush nominated Curtis S. Chin to be the 12th United States Executive Director to the Asian Development Bank, with the rank of ambassador, in September 2006, and he was confirmed to the position by unanimous consent of the United States Senate in March 2007. Ambassador Chin was sworn into office by Secretary of the Treasury Henry M. Paulson, Jr. on April 25, 2007. As the United States’ senior representative at ADB headquarters in Manila, Philippines, Ambassador Chin serves on the Board of Directors of the multilateral development bank. The 12person board supervises ADB’s financial statements, approves its 2 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 Please allow me to begin by thanking the Supreme Court of the Philippines for organizing this event. The sharing of experiences through events such as this contributes to efforts to address the environmental challenges that face our region even as it continues to grow and prosper. II. C OMMON E NVIR ONMENT AL C HALLENGES NVIRONMENT ONMENTAL Asia’s remarkable economic success story is well known. Many have marveled at the skyscrapers that mark the skylines of cities as diverse as Shanghai, Kuala Lumpur and Mumbai. Many have benefited from the investments that have led to new jobs and administrative budget, and reviews and approves all policy documents and all loan, equity, and technical assistance operations. Established in 1966, the ADB is dedicated to increasing economic growth and reducing poverty in the Asia and Pacific region. Previously, Ambassador Chin served as managing director with Burson-Marsteller where he worked in various capacities, focusing most recently on such issues as corporate responsibility, stakeholder engagement and public-private sector partnerships. He has lived and worked throughout the United States and Asia, including postings in Beijing, Hong Kong and Tokyo. He previously served on the Department of State’s Advisory Committee on Cultural Diplomacy, and during the George H.W. Bush Administration served as a Special Assistant to the Secretary of Commerce. Ambassador Chin graduated from Northwestern University with a Bachelor of Science in Journalism and a department major in economics. He received his Master of Arts in Public and Private Management from the Yale University School of Management. 2007] GREETINGS 3 opportunities. Since 1990, by some counts, hundreds of millions of people in our region have been lifted out of poverty. This growth, however, has not come without costs. Who in this room has not seen firsthand a day darkened by smog, or a city’s polluted waterways? Who in this room has not wondered at what point do the environmental consequences of development threaten economic gains? How indeed can we build better lives for our fellow citizens in a way that minimizes development’s impact on the environment and encourages the sustainable use of resources? Many of today’s environmental threats know no boundaries. The smoke from a burning forest crosses national borders, as do industrial pollutants that enter our rivers and seas. And so, too, the solutions we seek must also cross borders. Countries, cities, communities and international organizations such as the Asian Development Bank (ADB) must work together. Each has a contributing role to play in achieving clearer skies and cleaner water, in putting a stop to deforestation and over-fishing, and in understanding and addressing the consequences of global warming. At the end of the day, economic growth and environmental sustainability need not be mutually exclusive. Seemingly competing interests can be balanced. And for those of us gathered here, it is clear that equipping the judiciary to better respond to environmental challenges can be a critical part of finding that balanced solution. As you will discuss in detail over the next two days, eminent justices from many of your countries have played an important role – indeed, perhaps at times, a courageous role – in interpreting and enforcing environmental laws. 4 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 Thirty years ago in my own country, the United States, judges played a significant role in enforcing legislation on what was at the time an innovative policy – the environmental impact assessment. Today, such environmental impact assessments are common practice worldwide. Though not always welcome at the time of ruling, fair, impartial judgments based on a careful reading of the law can indeed stand the test of time. TO III. A SIAN D EVEL OPMENT B ANK ’ S E FFOR TS EVELOPMENT FFORTS P ROMO TE G OOD E NVIR ONMENT AL S TEW ARDSHIP OMOTE NVIRONMENT ONMENTAL TEWARDSHIP Before closing, I would like to highlight a few of the efforts of the Asian Development Bank to tackle environmental degradation. Between 2005 and 2006, for example, ADB doubled its assistance for environmental sustainability and increased investments in clean energy six-fold. To support such investments, the Bank also has spent millions of dollars to assist with the development of the legal infrastructure for environmental protection in countries including China, India and Indonesia. Clearly more can and must be done. In the years ahead, ADB should further deepen its engagement with the public and private sectors, and with civil society, in the region to promote responsible, sustainable development. And, in doing so, while adhering to strict, sensible environmental safeguards, the ADB will better advance economic growth and the fight against poverty in a sustainable way. IV USION IV.. C ONCL ONCLUSION For all of you in this room–including but not limited to those of you who serve as judges or justices–your thinking, your commitment, and your words matter. 2007] GREETINGS 5 As food for thought for the days ahead, let me conclude and share with you some words of wisdom drawn from two Native American proverbs that also have stood the test of time. These are proverbs that are perhaps echoed by proverbs in your own countries. The first: We do not inherit the earth from our ancestors, we borrow it from our children. And the second, a Cree Indian proverb: Only when the last tree has died and the last river been poisoned and the last fish been caught will we realize we cannot eat money. Both are certainly words to keep in mind as you focus on your task ahead: sharing experiences to strengthen environmental adjudication in Asia. Yours is not an easy task. But I know you are up to it. Thank you again for your time this morning. I would like to commend all of you for your commitment to the rule of law, and for your commitment to creating a better future for the people of Asia by both protecting the environment and promoting good governance. Thank you. Remarks ∗ Presiding Justice Sobchock Sukharomna∗∗ Honorable Chief Justice Reynato S. Puno Honorable Chief Justices and Judges from the Supreme Court of India, Indonesia, Sri Lanka and Australia Honorable Chancellor Ameurfina A. Melencio Herrera Distinguished Guests Ladies and Gentlemen, On behalf of the Court of Justice of Thailand, I am honored to thank Honorable Chief Justice Puno and all organizers for inviting me to this meaningful meeting. The Asian Justices Forum on the Environment brings judges from various countries together to share their knowledge and experiences on innovative court policies, practices, and procedures to enhance access to court, to strengthen the role of judges in adjudicating environmental cases, and to strengthen regional cooperation on judicial reforms. Within this two-day meeting, I am convinced that we can learn from each other in many respects and I will be very pleased to inform you about the development of Thailand. As you might know, Thailand has recently set up an environmental division in the Supreme Court and in all appellate ∗ Delivered at the Asian Justices Forum on the Environment: “Sharing Experiences to Strengthen Environmental Adjudication in Asia” on July 5, 2007 at the Edsa Shangri-La Hotel, Manila, Philippines. ∗∗ Presiding Justice of the Supreme Court of Thailand. 2007] REMARKS 7 courts. Establishing a new division is hard work, but harder is it to make the new division work systematically. We find this a great challenge and I hope you will allow me to go on explaining about our experience. Firstly, we learned that the green division needs green judges. “Green judges” means skillful judges, who not only master the environmental laws, but also understand the philosophy of environmentalism and ecologism. This means they need to have the sensitivity to environmental justice and injustice. We realize that we do need time and effective programs for the transformation. Secondly, we found the networking unavoidably necessary. Since the relevant knowledge changes rapidly, we can no longer let the court work alone. How can the court understand the community’s rights, if the judges have never heard about the vital role of communities in natural resource management? How can the court cope well with indigenous rights cases, if they ignore the existence of the indigenous people? How can the court understand the value of nature, unless the judges have a broad view about the ecological system and the green economics? Therefore, the networking with academics, NGOs or local communities should encourage every level in order to have enough channels for the flow of information and understanding. These can be done by dialogues and discussions, including research projects. Thirdly , we strongly believe that cooperation with international communities is a key tool to improve environmental adjudication. Therefore, the Thai court always seeks legal wisdom from every part of the world. Thai judges learned some good models of the environmental courts after they had visited the Australian environmental courts. We found new legal innovation when we learned some rules of the administrative courts in Europe. 8 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 We learned how to be a “Judicial Activist” from the experiences of India and the Philippines. The bilateral and multilateral cooperation has definitely strengthened the Thai judiciary to better the environmental process and environmental justice. Ladies and gentlemen, in the name of the Court of Justice of Thailand, I finally would like to thank you for your kind attention. I strongly believe that we have all come to the right track. I wish we will have a successful meeting and look forward to reinforcing our relationship further. Thank you very much. Under One Hea th∗ Heavven Abo Abovve One Ear Earth Chief Justice Reynato S. Puno∗∗∗ Looking back, concerns for a healthy environment have resulted in the early enactment of a plethora of remedial legislations and international covenants throughout the world. Unfortunately, they have not put a break to the bothersome decline of the environment. The World Commission on Environment and Development well observed in 1987, and I quote: Each year, six million hectares of productive dryland turns into worthless desert x x x. Each year, more than 11 million hectares of forests are destroyed x x x. In Europe, acid ∗ Keynote Address delivered at the Asian Justices Forum on the Environment:“Sharing Experiences to Strengthen Environmental Adjudication in Asia” on July 5, 2007 at the Edsa Shangri-La Hotel, Manila, Philippines. ∗∗ Chief Justice Reynato S. Puno was born in Manila on May 17, 1940. In 1962, he graduated from the University of the Philippines with the degrees of Bachelor of Science in Jurisprudence and Bachelor of Laws. On full scholarship granted by the Academy of American Law, he attended the Southern Methodist University in Dallas, Texas, earning a Master of Comparative Laws degree in 1967. In 1968, also on a full scholarship this time from the Walter Perry Johnson Foundation, he studied at the University of California in Berkeley where he earned a Master of Laws degree. He also finished all the academic requirements for the degree of Doctor of Juridical Science from the University of Illinois at Champaign-Urbana in 1969. 10 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 precipitation kills forests and lakes x x x. Other industrial cases threaten to deplete the planet’s protective ozone shield to such an extent that the number of human and animal concerns rise sharply and the oceans’ food chain is disrupted. Industry and agriculture put toxic substances into the human food and into underground water tables beyond reach of cleansing.1 Let us note that the report is vintage 1987. Today, the warning bells on the catastrophic climate change will keep on ringing and Upon his return from his studies abroad, Chief Justice Puno engaged in private law practice. In 1971, he was appointed Solicitor in the Office of the Solicitor General. He served as an Acting City Judge for Quezon City from 1972-1974, after which he was appointed Assistant Solicitor General, occasionally serving as Acting Solicitor General, until 1982. He was appointed Associate Justice of the Court of Appeals in 1980, the youngest at age 40 to become a member of the appeals court. In 1984, he rejoined the Executive Department when he was appointed Deputy Minister of Justice. On several occasions, he was Acting Secretary of Justice and for a time was Acting Chairperson of the Board of Pardons and Parole. In 1986, he returned to the Court of Appeals as an Associate Justice. In 1993, he was promoted to Associate Justice of the Supreme Court. As a member of the High Court, he has had the opportunity to both sit and chair the House of Representatives Electoral Tribunal and the Senate Electoral Tribunal. On December 7, 2006, he took his oath as 22nd Chief Justice of the Supreme Court. Currently, he is the Chairperson of the Presidential Electoral Tribunal, the Committee of Zero Backlog of Cases, and the Malcolm Trust, among others. 1. Beder Environmental Principles and Policies, An Interdiciplinary Approach, p.6. 2007] UNDER ONE HEAVEN ABOVE ONE EARTH 11 ringing loud and clear. Former United Nations Secretary General Kofi Annan characterized climate change as “x x x one of the greatest challenges of our time.” Indeed, just last February 2007, the United Nations Intergovernment Panel on Climate Change reported that temperatures would increase by 1.8 to 4 degrees Celcius by 2099 and sea levels will rise by 28 to 43 cm. Calling a spade a spade, the Panel warned in clear language that global warming is likely to result in the following:2 Thirst : Fresh water availability in Southern Africa and the Mediterranean will be reduced by one-half leaving millions thirsty; Throughout his career, Chief Justice Puno has been the recipient of numerous awards and honors. As a postgraduate student in the United States, he received several American Jurisprudence Prize awards for excellence in the fields of Comparative Private International Law, United States Constitutional Structure, International Organization, Problems of Doing Business Abroad, and Commercial Law. As a jurist, he has received honorary doctorates from Philippine Wesleyan University, the Angeles University Foundation, Bulacan State University, Hannam University of South Korea, the University of the East, and the Polytechnic University of the Philippines. Chief Justice Puno has also been conferred honorary citizenship by the State of Texas in the United States. Chief Justice Puno was married to the late Luzviminda T. Delgado, who had served as Clerk of Court of the Supreme Court. He has three children, Reynato, Jr., Emmanuel, and Ruth. He is an active member of the Puno United Methodist Church, where he is a lay preacher. 2. Red Cross Red Crescent, Issue I, 2007, p.8. 12 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 Hunger : African agricultural yields will drop by 15 percent to 35 percent. Marine and other ecosystems will be disrupted. Up to 50 percent of species will face extinction; Disease : Up to 80 million people will be exposed to malaria. Millions more will be exposed to dengue fever; Coastal flooding : Population mo movv ement: Disasters : 7 to 300 million will be affected. Hardest hit are small islands such as Bangladesh and Vietnam and coastal cities such as Calcutta, Hong Kong, Karachi, London, New York and Tokyo; Hundreds of millions will be forced away from their homes by rising sea levels, storms, floods and drought, and lastly; Rising intensity of typhoons, floods, forest fires and heat waves. These predictions are coming to pass. The newspaper headlines in every corner of the world continuously scream: Worst flooding in the Horn of Africa for 50 years; Australia’s drought the worst in 1,000 years; The Alps, the warmest in 1,300 years. Yet it seems the worst is yet to come.3 The tragedy of tragedies and the worst of the worst of climate change is that it will hit the poor of the developing countries. 3. Ibid. 2007] UNDER ONE HEAVEN ABOVE ONE EARTH 13 Again, let me refer to the chilling findings of the experts. World Disasters Report say: developing countries are particularly vulnerable to climate change as they often do not have the means to ward off Moods and other natural disasters. To make matters worse, their economies are often based on climate sensitive sectors such as agriculture and the fishing industry. Furthermore, the poor in these countries often live in the most disaster prone areas x x x along low lying coastlines on flood and plains or in deforested slopes. Slowly, climatic conditions and more frequent events are likely to threaten their food security, reduce their access to fresh water and increase their vulnerability and waterborne diseases.4 As climate change will bring more prejudice to the most vulnerable people, especially the poor in the poorest of countries, there has emerged the environmental justice movement in the legal landscape. This movement seeks fairness for the poor and the powerless in allocating the burdens of pollution, noxious development and resource depletion.5 For the first time, it has thrown on the table of arguments, the constitutional concept of political equality which is central to the regime of democracy. This has supplemented the successful efforts to bring in human rights arguments in debates about our environment. Happily, it is now beyond argument that environmental protection is indispensable, to support and sustain some of the most fundamental of human rights, such as the rights to life, to health and to well-being. Indeed, the right to a healthy environment has 4. Ibid. 5. Frechette, Environmental Justice, Creating Equality, Reclaiming Democracy, pp. 6-7. 14 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 been incorporated into the Constitutions of more than 90 nations since 1992.6 All these developments validate our vision in setting up this Asian Environmental Compliance and Enforcement Network (AECEN), a regional network supported by the United States Agency for International Development (USAID), in collaboration with the United Nations Environmental Programme (UNEP) and the Asia Pacific Jurist Association (APJA). AECEN seeks the regional improvement of the capacity of those involved in the process of promotions, implementing, developing and enforcing environmental law coupled with an improvement in the level of public participation in Asian environmental decision making, access to justice for the settlement of environmental disputes in the region and the defense and enforcement of environmental rights, and public access to relevant information pertaining to environmental law. As we gather and congregate today, let us remember the Johannesburg Principles approved in the Global Judges Symposium on Sustainable Development held in Johannesburg, South Africa, in August 2002. The principle stressed that: an independent judiciary and judicial process is vital for the implementation, development and enforcement of environmental law x x x It further emphasized that : the fragile state of the global environment requires the Judiciary, as the guardian of the Rule of Law, to boldl boldlyy lessl or ce applicable and f ear earlessl lesslyy , implement and enf enfor orce international and national laws which, in the field of environment and sustainable development, will assist in 6. Beder, op cit., pp. 5-6. 2007] UNDER ONE HEAVEN ABOVE ONE EARTH 15 alle viating poverty and sustaining an enduring alleviating civilization, and ensuring that the present generation will enjoy and improve the quality of life of all peoples, while also ensuring that the inherent rights and interests of succeeding generations are not compromised. Wisdom often comes from those who have not been ravaged by the wrath of nature. Listen therefore to what an old American Indian said: Humankind has not woven the web of life. We are but one thread within it. Whatever we do to the web, we do to ourselves. All things are bound together. All things connect. Let me conclude with the statement that we breathe the same air below one Heaven above one earth and under one environment. A pleasant morning to all. Judicial Acti vism and the Activism Role of Gr een Benc hes in India∗ Benches Green Chief Justice K.G. Balakrishnan∗∗ I. INTRODUCTION ............................................................................... 16 II. THE ROLE OF THE COURTS IN INDIA .................................... 20 I. I NTR ODUCTION NTRODUCTION The word environment is a broad spectrum which brings within its hue hygienic atmosphere and ecological balance. Saving this planet Earth is now of utmost concern to the entire humanity. The world is witnessing a global crisis of environmental degradation. The future of the earth is entirely linked with the sustainable development that may take place in the various countries, both developed and developing. They have to adopt a ∗ Delivered at the Asian Justices Forum on the Environment: “Sharing Experiences to Strengthen Environmental Adjudication in Asia” on July 5, 2007 at the Edsa Shangri-La Hotel, Manila, Philippines. ∗∗ Honorable K.G. Balakrishnan is the Chief Justice of the highest court of the Republic of India – the largest democratic country in the world. He was born on May 12, 1945 in India. After acquiring the Degree in Law in 1967, he acquired an LlM in Contract and Mercantile Law from Kerala University. Justice Balakrishnan was enrolled as Advocate on March 16, 1968. He practiced in Civil, Criminal and Constitutional matters in Kerala High Court. 2007] JUDICIAL ACTIVISM AND THE ROLE OF GREEN BENCHES IN INDIA 17 visionary approach in consonance with the needs of the man and the earth. There is human threat to air, water and land. India had been under colonial rule for about two centuries and even prior to that there were minor kingdoms which did not pay attention to any sort of environmental concerns. After the Prior to being appointed as Permanent Judge on July 11, 1986, in Kerala High Court, he was Additional Judge since September 26, 1985. He was transferred to Gujarat High Court and then elevated as Chief Justice of that High Court on July 16, 1998. He was appointed as Acting Governor of the State of Gujarat in 1998. In September 1999, Justice Balakrishnan was transferred as the Chief Justice of the Madras High Court. He was elevated as Judge, Supreme Court of India, on June 8, 2000, and took over as Chief Justice on January 14, 2007. Justice Balakrishnan headed the National Legal Services Authority until January 2007. He has been heading the Green Bench of the Supreme Court of India, which hears appeals and Writ Petitions involving various environmental statutes covering Forest Conservation, and Prevention of Air, Water and Noise Pollution. He participated in the Second Biennial Conference of the Commonwealth Judicial Education Institute (CJEI) in St. Lucia (2003); the Indo-Canadian Legal Forum Meet in Ottawa (2005); the Commonwealth Legal Education Association Conference at the University of Greenwich (2005); the CJEI’s Intensive Study Programme for Judicial Educators (2006); the Indo-British Legal Forum Meet in Edinburgh (2006); the Seventh Worldwide Common Law Judiciary Conference in London (2007); and the 12th Conference of Chief Justices of Asia and Pacific and 20th LawAsia Conference, 2007, in Hong Kong. 18 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 independence, the primary concern of the administrators was to eradicate poverty. Millions of people were below the poverty line and the literacy rate was also very poor. The population growth was at an alarmingly high rate. All these factors contributed to serious environmental degradation and the persons who were mostly affected by this environmental degradation were the poor and the disadvantaged sections of the society. They were the first victims of poor sanitation, bad air, contaminated water, scarce food, fuel and fodder. For millions of Indians, their only wealth and common property resources were threatened by environmental degradation. The post-independence India was concerned with equity and growth and environmental concern was added only as a third dimension. Thousands of people migrated to cities in search of jobs and basic living conditions. This resulted in massive increase in population in the cities. The concern for poor and needy people was voiced by then Prime Minister, Mrs. Indira Gandhi at the United Nations Conference on the Human Environment held in Stockholm on June 14, 1972. She said : On the one hand, the rich look askance at our continuing poverty – on the other, they warn us against their own methods. We do not wish to impoverish the environment any further and yet we cannot for a moment forget the grim poverty of large numbers of people. Are not poverty and need the greatest polluters? For instance, unless we are in a position to provide employment and purchasing power for the daily necessities of the tribal people and those who live in or around our jungles, we cannot prevent them from combing the forest for food and livelihood; from poaching and from despoiling the vegetation. When they themselves feel deprived, how can we urge preservation of animals? How can we speak to those who live in villages and in slums 2007] JUDICIAL ACTIVISM AND THE ROLE OF GREEN BENCHES IN INDIA 19 about keeping the oceans, the rivers and the air clean when their own lives are contaminated at the source? The environment cannot be improved in conditions of poverty. Nor can poverty be eradicated without the use of science and technology. And she added : The ecological crises should not add to the burdens of the weaker nations by introducing new considerations in the political and trade policies of rich nations. It would be ironic if the fight against pollution were to be covered into another business, out of which a few companies, corporations, or nations would make profit at the cost of the many. The 1972 Stockholm Conference marked a watershed in the history of environment management in India. Prior to 1972 in India, environmental concerns such as sewerage disposal, sanitation and public health were dealt with by federal ministries and each pursued their own objectives in the absence of a proper coordination system. The 24th UN General Assembly decided to convene a conference on the human environment in 1972, and requested a report from each member country on the state of the environment. As a result of these reports, greater coordination was achieved regarding the environmental policies and programs. Thereafter, in the sixth five-year plan an entire chapter on Environmental and Development was included that emphasized sound environmental and ecological principles in land use, agriculture, forestry, marine exploitation, mineral extraction, fisheries, energy production and human settlements. It provided environmental guidelines to be used by administrators and resource managers when formulating and implementing programs, and laid 20 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 down an institutional structure for environmental management by the Central and State governments. The Planning Commission was set up as an expert committee to formulate long-term sectoral policies. It also noted that many environmental problems were continuing to cause serious concern, for example the loss of topsoil and vegetative cover, the degradation of forests, continuing pollution by toxic substances, careless industrial and agricultural practices, and unplanned urban growth. It acknowledged that environmental degradation was seriously threatening the economic and social progress of the country and that our future generations may discover that life support systems have been damaged beyond repair. II. T HE R OLE OF THE C OUR TS OURTS IN I NDIA The shortcomings of the executive in coping with the pressures on the environment brought about by change in the country’s economic policies had thrust the responsibility of environmental protection upon the judiciary. This meant that in India, the Judiciary in some instances had to not only exercise its role as an interpreter of the law but also had to take upon itself the role of constant monitoring and implementation necessitated through a series of public interest litigations that have been initiated in various courts. However, in the defense of the executive, it must be said that India has actively participated in several multilateral treaties and has been active in admitting its commitments to the environment in accordance with the general principles of International Law while incorporating them into its national laws. Much of the difficulty of the executive in implementing these laws can perhaps be attributed to resource constraints as well. 2007] JUDICIAL ACTIVISM AND THE ROLE OF GREEN BENCHES IN INDIA 21 In its efforts to protect the environment, the Supreme Court and the Indian Judiciary in general have relied on the public trust doctrine, precautionary principle, polluter pays principle, the doctrine of strict and absolute liability, the exemplary damages principle, the pollution fine principle and intergenerational equity principle apart from the existing law of the land. Another guiding principle has been that of adopting a model of sustainable development. The consistent position adopted by the courts as enunciated in one of its judgments1 has been that there can neither be development at the cost of the environment nor environment at the cost of development. Thus, the Supreme Court recognizes the need for development and proper utilization of our natural resources for the betterment of our society. However, this cannot be done at the expense of the environment itself. The courts in India have, thus, played a dynamic role in preserving the environment and ecosystem. In a series of cases, the superior courts of India issued various directions and orders to prevent the degradation. To understand the role of the courts in this regard, the structure of the judicial system and also the constitutional and statutory provisions are to be taken note of. It is true that there were various laws even in the 19th century to prevent vandalism by human beings. The Indian Penal Code, which came into existence in 1860, imposes fine on a person who voluntarily fouls the water of any public spring or reservoir. The Code penalizes acts with poisonous substances that endanger life or cause injury and proscribes public nuisance. The Indian Easements Act 1882 protected the riparian owners against unreasonable polluting by upstream uses. The Indian Fisheries 1. Goa Foundation, Goa v. Diksha Holdings (Pvt.) Ltd. [AIR 2001 SC 184]. 22 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 Act passed in 1897 penalizes the killing of fish by poisoning water by using explosives. Thereafter, series of enactments were passed to protect the purity of air and water and degradation of forests. But the provisions contained in these enactments were not seriously being implemented by the authorities. In December 1984, India witnessed one of the greatest manmade calamities in Bhopal, the capital city of the State of Madhya Pradesh, from a factory owned by Union Carbide India Limited. Methyl Isocyanate, a highly poisonous gas, leaked out and it resulted in the death of more than 2,000 persons who were mostly the hutment-dwellers in the near vicinity of the factory. The air carried the leaked deadly poisonous gas to the thickly populated areas and about two lakh people suffered various bodily injuries. The Union Carbide India Limited is a company incorporated in India by Americans. The Bhopal Gas Tragedy was an eye opener and the protection of environment was taken as a serious matter. The Indian Parliament passed the Environment Protection Act, 1986. The Environment Protection Act empowers the Central Government to take measures to protect and improve the environment. Rules were also framed for implementation of the provisions of the Act. The various provisions of this Act give power to the Central Government to take measures to protect and improve the environment and they include : 1. Power to take all measures necessary for purpose of protecting and improving the quality of environment and preventing, controlling and abating environmental pollution; 2. Coordination of actions of state governments, officers and other authorities under any law; 2007] JUDICIAL ACTIVISM AND THE ROLE OF GREEN BENCHES IN INDIA 23 3. Planning and executing of nationwide program for prevention, control and abatement of environmental pollution; 4. Laying down standards for quality of environment in its various aspects; 5. Laying down emission standards from various sources; 6. Restriction of areas in which any industry, operations, etc. will not be carried out; 7. Inspection of plants, etc.; 8. Constitution of authorities; 9. Issue of directions; 10. Lay down rules to regulate environmental pollution; 11. Emissions to meet standards; 12. Power of entry and inspection; and 13. Power to take samples. It may also be noticed that there are certain important constitutional provisions which give the citizens the right to approach the High Courts as well as the Supreme Court of India to protect their fundamental rights. Article 226 of the Constitution gives the right to citizens to approach the High Court to enforce their fundamental rights and the High Courts are given the power to issue various writs. Article 32 of the Indian Constitution could be invoked by the citizens for enforcement of rights conferred by Part III of the Constitution, particularly, the Fundamental Rights. It is also to be noted that Article 21 of the Constitution guarantees one of the important fundamental rights of citizens and says that no person shall be deprived of his life and personal liberty, except according to procedure established 24 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 by law. This “right to life” contained in Article 21 has been given a very wide interpretation by the Supreme Court of India. Article 48-A, which is one of the Directive Principles of State Policy states that the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country. Part IV-A was added to the Constitution by the Constitution (42nd Amendment) Act, 1976 and Article 51-A(g) thereof specifically says that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. Till 1980, not much contribution was made by the courts in preserving the environment. One of the earliest cases which came to the Supreme Court of India was Municipal Council, hand & Ors.2 Ratlam is a city in the State ardhic dhichand dhic Ratlam vv.. Var of Madhya Pradesh in India. Some of the residents of the municipality filed a complaint before the Sub-Divisional Magistrate (SDM) alleging that the municipality is not constructing proper drains and there is stench and stink caused by the excretion by nearby slum-dwellers and that there was nuisance to the petitioners. The SDM directed the municipality to prepare a plan within six months to remove the nuisance. The order passed by the SDM was approved by the High Court. The Municipality came in appeal before the Supreme Court of India and contended that it did not have sufficient funds to carry out the work directed by the SDM. The Supreme Court of India gave directions to the Municipality to comply with the directions and said that paucity of funds shall not be a defense to carry out the basic duties by the local authorities. 2. AIR 1980 SC 1622. 2007] JUDICIAL ACTIVISM AND THE ROLE OF GREEN BENCHES IN INDIA 25 Thereafter, a series of cases was filed before the Supreme Court and there was a dynamic change in the whole approach of the courts in matters concerning the environment. The Supreme Court of India interpreted Article 21, which guarantees the fundamental right to life and personal liberty, to include the right to a wholesome environment and held that a litigant may assert his or her right to a healthy environment against the State by a writ petition to the Supreme Court or a High Court. The powers of a High Court under Article 226 or those of the Supreme Court under Article 32 are not confined to the prerogative writs derived from English law, but extended to directions or orders or writs derived from English law, or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. The term “writs in the nature of ” widened the court’s discretionary powers in granting relief by releasing Indian courts from the procedural technicalities that govern procedures and rules in English law. The courts are empowered to give declaratory relief, issue an injunction or quash an action without recourse to specific writs and this enabled the courts in choosing proper relief and the court can issue a writ of mandamus to command action by a public authority when an authority is vested with power and wrongfully refuses to exercise, to undo what has been done in contravention of a statute. Writs could be issued against an administrative judicial or quasi-judicial authority. An applicant seeking a mandamus must show that the duty sought to be enforced is a public duty, a duty created under the Constitution, a statute or some rule of common law and that duty is mandatory and not discretionary. The broad language used in Articles 32 and 226 of the Constitution enables the courts to fashion relief and pass orders consistent with their own assessment of the public interest and principles of equity. 26 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 By the second half of the 1970s, the public interest litigation became a model litigation relaxing the standard of standing. The public interest litigation altered the landscape and the role of the higher judiciary in India. The Supreme Court and the High Courts dealt with series of public grievances or flagrant human right violations by the State. In a public interest case, the subject matter of litigation is typically a grievance against the violation of basic human rights of the poor and the helpless and the petitioner seeks to champion a public cause for the benefit of all society. Traditionally, only a person whose rights were injured was entitled to seek remedy. But that traditional view of standing prevented the grievances of the poor from being heard by court. They were denied access to justice because of their poverty and the poor and underprivileged suffered economic reprisals from the dominant sections of the community. In 1981, a seven-Judge Bench of the Supreme Court gave a definite opinion which enlarged the scope of what has been termed as “representative standing.” The court held that it may therefore now be taken as well-established that where a legal wrong or legal injury is caused to a person, or to determinate class of persons by reason of violation of any constitutional or legal right; or any burden is imposed in contravention of any constitutional or legal provision or without authority of law; or any such legal wrong or legal injury or legal burden is threatened and such person or determinate class of persons is, by reason of poverty, helplessness or disability of socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can apply for an appropriate direction, order or writ in the High Court under Article 226 and, in case of any fundamental right of such person or determinate class of persons, in the Supreme Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. 2007] JUDICIAL ACTIVISM AND THE ROLE OF GREEN BENCHES IN INDIA 27 The above decision enlarged the scope of the litigation and a large number of cases came to the Supreme Court of India to protect and preserve the ecology and environment. It is interesting to note some of the decisions of the Supreme Court of India which gave various directions to help protect the environment from further degradation. But for the directions by the Supreme Court in these cases, there would have been large scale deforestation and the air and water would have been polluted to such an extent that life of human beings would have been miserable. The role played by the Supreme Court of India in protecting the environment can be seen through these decisions. One Mr. M.C. Mehta, a lawyer practicing in the Supreme Court, filed a series of public interest litigations. One such case concerned shifting of caustic chlorine and sulphuric acid plants located in a thickly populated area in Delhi. From that plant, oleum gas leaked out and caused some panic among the neighborhood residents. The court expanded the scope of Article 32 and said that in appropriate cases the court can award compensation to the affected party. The court also said that where an enterprise is engaged in hazardous or inherently dangerous activity and does harm to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity, the enterprise is strictly and absolutely liable to compensate all those affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortuous her principles of strict liability under Rylands vv.. Fletc Fletcher her..3 The very same petitioner filed a series of other public interest litigations concerning vehicular pollution, illegal mining, pollution of Ganga water, pollution of water by tanneries, and Taj Mahal. In many of these cases, Expert Committees were constituted and 3. 1866 LRI Ex. 265.19. 28 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 the court acted on these Expert Reports and issued various directions. In the case of Taj Mahal, directions were issued to protect that monument from pollution by air. Vehicular traffic was restricted in that area and directions were issued to clean the structure. To ensure ecological stability, at least 30 percent of the nation’s area should be under adequate forest cover. There was a large scale deforestation and the forest cover dwindled to less than 18 percent. Originally, the forests were placed on the State List whereby the States alone could make legislation concerning forests. By 1976, the forests were placed under the Concurrent List and the Parliament also could make legislation on that subject. Despite the major steps taken by the Governments, the deforestation continued unabatedly. In 1996, Supreme Court issued sweeping directions to oversee the enforcement of Forest Laws across the man Tir umalpad vv.. Union of nation. In T.N .N.. Goda Godavvar arman irumalpad 4 India, the Supreme Court of India issued various directions. The case was initially filed in the Supreme Court to give effect to the provision of National Forest Policy in 1988. The Court gave notice to the Union Government and State Governments. Forest must be understood according to its dictionary meaning and the description covers all statutory recognized forests, whether designated as “reserved,” “protected” or not, including any area recorded in Government records as forest. Forest Conservation Law has also been significantly impacted or En vir onmental La w through another case, Centr Centree ffor Envir vironmental Law (WWF) – India vv.. Union of India5 concerning national parks and sanctuaries. While hearing this case, the Supreme Court through one of its interim orders on November 13, 2000, has 4. W.P. No. 202 of 1995. 5. W.P. No. 337 of 1995. 2007] JUDICIAL ACTIVISM AND THE ROLE OF GREEN BENCHES IN INDIA 29 restrained all State Governments from dereserving national parks, sanctuaries and forests. The impact of both these judgments has been that all ongoing activities without prior approval of the Central Government must be stopped. There would be complete ban on felling of trees. Felling of trees in all forests is to remain suspended except in accordance with the working plans of the State Government, as approved by the Central Government. Where permit system is in vogue, the Department of Forests or State Forest Corporation alone can cut trees. There shall be complete ban on movement to cut trees and timber from the North Eastern States to other parts of the country, either by rail, road or waterways. Workers in the wood-based industries should be paid their usual wages. Ecologically-sensitive areas are to be found out and totally excluded from exploitation. In effect, all State Governments have been prohibited from using forest lands for non-forest purposes without the prior approval of the Central Government in accordance with the Forest Conservation Act of 1980. Through the same order, the Court has also stayed all non-forest activities that were being carried out without the prior approval of the Central Government. Resultantly, the power to denotify/dereserve national parks and wildlife sanctuaries that was vested in the State Governments was transferred to the National Board for Wildlife through an amendment that came into effect from 2003. By virtue of the court’s orders, even the National Board for Wildlife cannot exercise this power without the approval of the Supreme Court. It may also be noted that the National Commission that was set up to review the working of the Constitution of India, in its report submitted to the Central Government, has recommended the addition of a separate article (30-D) in the Constitution of 30 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 India which would confer the stature of a fundamental right within the Indian Constitution to the right to save drinking water, clean environment, etc. Thus, even a cursory study of the judgments of the Indian courts, especially the Supreme Court, would reflect the consistent commitment of the courts towards the protection of the environment. Very often, the courts had to not only lay down the law but also closely monitor its implementation due to the political compulsions of the Government. The executive needs to show stronger commitment towards the implementation of environment-related laws. However, it needs to be appreciated that the efforts of the courts can only achieve marginal success unless there is social, political and economic change in the Government as well as in people towards adhering to a model of sustainable development. Perhaps the solution towards protecting and utilizing nature’s bounty in a sustainable manner lies in an introspection towards the lifestyles that modern world is increasingly adopting. Concerned citizens of the world must begin by advocating a reduction of materialistic lifestyles based on the philosophy of the developed world, leading a life in harmony with nature, having a low ecological footprint, and adopting solutions towards equitable growth and development in a manner that does not harm the environment. A newspaper report,6 sourced from AFP news, quotes an article from the Science Journal and brings into sharp focus some mindboggling facts. The report states that as of 1995 only 17 percent of the world’s land area remains truly wild – with no human population, crops, road access or nighttime light detectable by satellite. Half of the world’s surface area is used for crops or 6. The Hindu, June 29, 2007. 2007] JUDICIAL ACTIVISM AND THE ROLE OF GREEN BENCHES IN INDIA 31 grazing; more than half of all forests have been lost to land conversion; the largest land mammals on several continents have been eliminated; shipping lanes crisscross the oceans. Due to extensive damming, nearly six times as much water is held in artificial storage worldwide as is free-flowing. Subtle and not so subtle changes brought about by man upon the environment are evident everywhere. The report states the natural selection has been supplanted by human selection, meaning that certain species −such as companion pets−thrive, while others−such as river trout − have been altered specifically for human consumption often to their detriment. And, thus, altering ecosystems has left many species vulnerable to disturbances and are less resilient. Such shrilling facts ought to serve as a constant reminder to us to maintain our commitment to protect our environment. The contribution of the Supreme Court of India in protecting the environment and ecology, forest, wildlife, etc., has been phenomenal. Despite the limitations of jurisdiction, the Court played a vital role in this regard. More importantly, what is needed from an environmental angle is a vision for the future. We have enough laws to protect the environment, but its implementation is in the hands of administrative authorities. Good governance free from corruption is the basic need to protect the environment. The words of Justice Felix Frankfurter are apt, quoting: An onerous obligation x x x we owe to posterity x x x clean air, clean water, greenery and open space. They ought to be elevated to the status of birthright of every citizen. Estab lishing Gr een Benc hes in T hailand∗ Establishing Green Benches Presiding Justice Sobchock Sukharomna∗∗ I. II. III. IV. INTRODUCTION ................................................................................ 32 HISTORY OF THE THAI GREEN BENCHES ............................... 33 PROBLEMS AND DIFFICULTIES ..................................................... 33 FUTURE OF THE THAI GREEN BENCHES .................................. 34 I. I NTR ODUCTION NTRODUCTION Honorable Chief Justice Reynato S. Puno Honorable Chief Justices and Judges from the Supreme Court of India, Indonesia, Sri Lanka and Australia Honorable Chancellor Ameurfina A. Melencio Herrera Distinguished Guests Ladies and Gentlemen, On behalf of the Court of Justice of Thailand, I am truly delighted to present to you some information about the development of the Thai green benches. I would like to summarize this into three points. These are the history, problems and difficulties, and future of the Thai green benches. ∗ Delivered at the Asian Justices Forum on the Environment: “Sharing Experiences to Strengthen Environmental Adjudication in Asia” on July 5, 2007 at the Edsa Shangri-La Hotel, Manila, Philippines. ∗∗ Presiding Justice of the Supreme Court of Thailand. 2007] ESTABLISHING GREEN BENCHES IN THAILAND II. H IST OR Y ISTOR ORY OF THE 33 T HAI G REEN B ENCHES Having realized that the judiciary is a crucial partner in promoting compliance with the enforcement of the environmental law in the country, the Environmental Law Division, the newly specialized division, has officially been established within the Supreme Court and the appeal courts recently. The principal purpose of the new division is to create awareness among the judges on environmental cases as well as to adjust their roles suitable and in line with the nature of the present environmental problems. The Thai green benches are responsible for a number of environmental laws such as the Preservation and Protection of the National Environmental Quality Act, the Forestry Act, the Fisheries Act, the Navigation in Thai Waters Act, and so on. About the capacity building, until now some groups of senior judges had done a study visit on the environmental justice process in the USA, Canada, Australia, Europe and India. Two or three research projects have been done. Around 45 judges had a twoweek training at the Kyushu University in Japan, though intensive training programs in the country seem to be rare. III. P ROBLEMS AND D IFFICUL TIES IFFICULTIES As I said in the opening remarks, we not only need green benches, but also “green judges.” To get these, we have to invest! The systematic training programs should have been sufficiently prepared. The good environmental bench book should have been made. The database on environmental laws and cases must have been easily provided. The budget for the specialized division should have been rapidly increased. The routine rotation system of judges should have been immediately changed. But in practice, these principles could not be easily implemented. 34 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 The green benches need also the “green legislations.” For civil remedies, the wider discretion for judges to heal the injured person should have been stipulated. For criminal sanction and probation, the creative sentencing and the restorative justice process should have been introduced. Some court rules of evidence should have been changed. Unfortunately, the enactment and amendment of the “green laws and rules” have not gradually begun. IV IV.. F UTURE OF THE T HAI G REEN B ENCHES Looking forward into the future, we need a wide improvement of the environmental procedure. In my opinion, though many “imported” legal instruments are innovative, the Thai lawyer community should take care of the legal reception process properly. At least, we should raise the following questions more intensively: Is the “Punitive Damage” suitable for the Thai legal system? Would the “Open Standing” not be abused in our country? Will the Australian “Concurrence of Expert Witness Process” be workable in Thai court? Can we find one “Commissioner” or “Lay Judge,” who is a “real” expert and stays “neutral” as a commissioner in New Zealand? How is the attitude of Thai judges towards the roles of NGOs in entering the litigation arena? One research project of the Research Institute of the Office of the Judiciary, which held many meetings of academic and civic networks, showed that many social organizations, academics, lawyers including politicians called for an establishment of a specialized environmental court in Thailand. To create the new court is an attempt to rationalize the present diversified jurisdictions of a number of courts related to the environmental law. Differing from the environmental court system in other countries, Thai people, especially the poor, request the “All-in-One” court system. 2007] ESTABLISHING GREEN BENCHES IN THAILAND 35 This means the court should not have only the judicial review on the administrative action, but also the jurisdiction on civil and criminal cases. This new court should provide a degree of certainty and guidance to all parties concerned with environmental disputes and delivery consistency in decision making. The court must decrease delays and set the standard of the development of environmental law, policies and principles. Apart from the development of the environmental court, it is suggested to think of the relevant supplementary units, since the Environmental Defender’s Office or the Legal Aids Fund for Environment, the Institute for Environmental Forensic and the Environmental Alternative Dispute Resolution Process will also play an important role in environmental justice improvement. I would like to conclude that the legal innovations from abroad are highly welcomed and appreciated. However, the application of the foreign legal system in Thai law should be thoroughly analyzed. From my point of view, we must use our strong energy to crystallize eventually the best mode for the Thai environmental justice process. To realize these ideas by their legal and technical expertise within and outside the court, the legal experts and the interdisciplinary task force should be wisely appointed in the near future. Thank you very much for your kind attention. Operating an En vir onmental Cour t: Envir vironmental Court: Lessons fr om A ustralia ∗ from Australia Justice Brian J Preston∗∗ I. LAND AND ENVIRONMENT COURT IN OUTLINE ............... 38 II. LAND AND ENVIRONMENT COURT IN THE COURT HIERARCHY ......................................................... 39 III. HISTORY OF LAND AND ENVIRONMENT COURT ................ 39 A. Objectives of Establishment of Land and Environment Court B. Rationalization C. Pre-Land and Environment Court Jurisdictional Arrangements D. Specialization IV. LAND AND ENVIRONMENT COURT JURISDICTION ............. 41 ∗ Delivered at the Asian Justices Forum on the Environment: “Sharing Experiences to Strengthen Environmental Adjudication in Asia” on July 5, 2007 at the Edsa Shangri-La Hotel, Mandaluyong City, Philippines. ∗∗ Justice Brian J Preston was appointed Chief Judge of the Land and Environment Court of New South Wales on November 14, 2005. Prior to this appointment he was Senior Counsel practicing from 11th Floor Wentworth Chambers. Justice Preston graduated in 1981 from Macquarie University with a Bachelor of Arts and a Bachelor of Law and Letters, first class honors. He was awarded an Advanced Certificate in Urban Horticulture with Distinction from the Northern Sydney Institute of TAFE, the TAFE State Medal in Urban Horticulture in 1999, and an Award of Excellence in 2000. 2007] OPERATING AN ENVIRONMENTAL COURT: LESSONS FROM AUSTRALIA 37 V. VI. VII. COURT PERSONNEL ................................................................... 42 EXERCISE OF JURISDICTION ..................................................... 42 MULTI-DOOR COURTROOM ................................................ 43 A. Internal Alternative Dispute Resolution B. External Alternative Dispute Resolution VIII. ALTERNATIVE DISPUTE RESOLUTION PROTOCOLS ....... 44 IX. ALTERNATIVE DISPUTE RESOLUTION REVIEW .............. 44 X. CASE FLOW MANAGEMENT ...................................................... 45 XI. PRACTICE NOTES IMPLEMENT DIFFERENTIAL CASE MANAGEMENT (DCM) .................. 45 XII. DIFFERENTIAL CASE MANAGEMENT: LITIGATION PLAN ........................................................................ 45 XIII. PRE-HEARING ATTENDANCE OPTIONS .............................. 46 XIV. HEARING OPTIONS ..................................................................... 46 XV. ACHIEVING OBJECTIVES OF COURT ADMINISTRATION ................................................. 47 XVI. BENEFITS OF LAND AND ENVIRONMENT COURT: “DESIRABLE DOZEN” .............................................................. 47 XVII. CONCLUSION ............................................................................. 55 Justice Preston was admitted as a Solicitor in New South Wales in 1982. He worked as an associate to a judge of the Supreme Court of the Northern Territory and also for two of Australia’s largest firms of solicitors in natural resources law and litigation. He was the first principal solicitor of the Environmental Defenders Office in New South Wales, which was Australia’s first public interest environmental law center. Justice Preston was called to the Bar in New South Wales in 1987 and was appointed Senior Counsel (the equivalent of Queens Counsel) in 1999. There he developed a practice in environmental and planning law and administrative law, primarily in New South Wales. 38 THE PHILJA JUDICIAL JOURNAL I. L AND [VOL. 9:28 E NVIR ONMENT C OUR T NVIRONMENT OURT IN O UTLINE AND • Australia is a federal system. • Land and Environmental Court (LEC) is a state court. • New South Wales (NSW) is the most populous and economically important state in Australia. • The LEC is a specialist statutory court with a wide jurisdiction in environmental planning and land matters. • The LEC is a superior court of record. • The LEC judges have the same rank, title and status as a judge of the Supreme Court of New South Wales. Justice Preston lectures (part-time) at the University of Sydney and is a member of the Australian Centre for Environmental Law in Sydney. He has lectured in the post-graduate program for 15 years. He established two post-graduate law courses, Biodiversity Law and Environmental Dispute Resolution and continues to teach Biodiversity Law. Justice Preston has also been invited to teach in post-graduate law programs at other universities in Australia, including Environmental Impact Assessment at the University of Adelaide and Environmental Dispute Resolution at the Australian National University in Canberra. Justice Preston has taught in 2000, 2002 and 2004 in the Diploma of Arboriculture at the Northern Sydney Institute of TAFE, Ryde Campus, in courses on Environmental Laws and Regulations and the Land and Environment Court including providing training to be an expert witness in courts. 2007] OPERATING AN ENVIRONMENTAL COURT: LESSONS FROM AUSTRALIA II. L AND 39 E NVIR ONMENT C OUR T NVIRONMENT OURT C OUR T H IERAR CHY OURT IERARCHY AND IN THE • High Court of Australia. • New South Wales Court of Appeal and Court of Criminal Appeal. • Supreme Court of New South Wales, Industrial Relations Commission of New South Wales and Land and Envir vironment Courtt of New South Wales. onment Cour En vir • District Court of New South Wales. • Local Court of New South Wales. L AND III. H IST OR Y OF ISTOR ORY AND E NVIR ONMENT C OUR T NVIRONMENT OURT • Established by the Land and Environment Court Act of 1979, assented to December 21, 1979. • Commenced operation on September 1, 1980. • Part of a package of environmental law reform, including Environmental Planning and Assessment Act of 1979. A. Objectives of Establishment of Land and En vir onment Cour Envir vironment Courtt • Two principal objectives: rationalization and specialization. • Desire for a “one-stop shop” for environmental planning and land matters. 40 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 B. Rationalization • The judicial system before 1979 was irrational and inefficient. • Planning and land matters were dealt with by an “uncoordinated miscellany” of tribunals and courts. • There was no environmental law as we now know it. C. Pr e-Land and En vir onment Cour t JJurisdictional urisdictional Pre-Land Envir vironment Ar rang ements Arrang rangements • Valuation, acquisition and land matters: Land and Valuation Court (jurisdiction transferred from the District Court), Valuation Boards of Review and Supreme Court (for title issues). • Building and subdivision and development matters: Local Government Appeals Tribunal (jurisdiction transferred in 1972 from Land and Valuation Court and Boards of Appeal). • Civil (equitable) enforcement and judicial review: Supreme Court. • Criminal enforcement: Local Court and District Court. D. Specialization • Wide environmental planning and land jurisdiction. • Exclusive jurisdiction – no other court or tribunal could exercise jurisdiction given to LEC. • Judges appointed with (or would develop) knowledge and expertise in jurisdiction. 2007] OPERATING AN ENVIRONMENTAL COURT: LESSONS FROM AUSTRALIA 41 • Appointment of technical and conciliation assessors (later termed commissioners). • Specialization is not an end, but a means to an end. • A specialist court could: – more ably deliver consistency in decision making; – decrease delays (through its understanding of the characteristics of environmental disputes); and – facilitate the development of environmental law, policies and principles. IV IV.. L AND AND E NVIR ONMENT C OUR T NVIRONMENT OURT J URISDICTION • Administrative (Merits Review) Appeals Against Government Decisions Class 1 : Environmental planning and protection appeals (merits review appeals) Class 2 : Local government, trees and miscellaneous appeals (merits review appeals) Class 3 : Land tenure, valuation, rating and compensation matters (merits review appeals) • Civil Enforcement (Statutory and Equitable) Class 4 : Environmental planning and protection (civil enforcement and judicial review) Class 5 : Environmental planning and protection (summary criminal enforcement) • Judicial Review of Government Action 42 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 • Criminal Enforcement • Appeals Against Criminal Convictions and Sentences of Local Court Class 6 : Appeals against convictions or sentences relating to environmental offenses (appeals as of right from Local Court) Class 7 : Appeals against convictions or sentences relating to environmental offenses (appeals requiring leave of LEC from Local Court) • Appeals Against Decisions of LEC Commissioners V. C OUR T P ERSONNEL OURT • Judges : Chief Judge and five other judges • Commissioners : Senior Commissioners, 8 other full-time commissioners and 16 acting commissioners (part-time as occasion demands) • Registrars Registrar and Assistant Registrar : • Registry Staff VI. E XER CISE XERCISE • Judges : OF J URISDICTION Constitute the Court and may exercise all classes of jurisdiction but usually exercise Classes 3-7 and Classes 1 and 2 where legal issues or large or controversial issues are involved. 2007] OPERATING AN ENVIRONMENTAL COURT: LESSONS FROM AUSTRALIA • Commissioners : • Registrars : 43 Jurisdiction delegated by Chief Judge in Classes 1-3 (merits review only) to act as adjudicator, conciliator, mediator or neutral evaluator. Case management and conciliator or mediator. VII. M UL TI -D OOR C OUR TR OOM ULTI OURTR TROOM • The Land and Environment Court encourages Alternative Dispute Resolution (ADR); • Although Land and Environment Court does not operate as a formal Multi-Door Courtroom, its practices and procedures operate in effect to screen, sort and allocate matters to the appropriate alternative dispute resolution mechanisms. A. Inter nal Alter nati esolution Internal Alternati nativve Dispute R Resolution The LEC offers “in-house” a variety of ADR mechanisms: • Adjudication in all classes of jurisdiction (by judges or • • • commissioners); Conciliation in Classes 1-3 (by commissioners or registrars); Mediation in Classes 1-4 (by trained mediators-registrar and some commissioners); and Neutral evaluation in Classes 1-3 (by commissioners). B . Exter nal Alter nati esolution nativve Dispute R Resolution The LEC also facilitates external ADR: • Mediation by accredited external mediators in Classes 14; 44 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 • Reference of whole or part of matter in Classes 1-4 to external referee with special knowledge or expertise for inquiry and report to Court. VIII. A LTERN ATIVE D ISPUTE R ESOL UTION TERNA ESOLUTION P RO T O C O L S • Pre-action : protocols • Post-action : protocols Practice Note for Valuation Objections requires parties to engage in informal mediation before commencing action. Compliance is verified at the first directions hearing. Practice Notes for all Classes 1-3 matters require parties to consider and report to the Court at the first subsequent directions hearing the appropriateness of using ADR mechanisms of conciliation and mediation. IX. A LTERN ATIVE D ISPUTE R ESOL UTION R EVIEW TERNA ESOLUTION • The Court screens, sorts and allocates cases to ADR in consultation with parties but also by own motion. • Classes 1 and 2 (environmental planning and local government appeals): by Registrar at callover. • Class 2 (tree disputes between neighbors): List Commissioner at callover. • Classes 3-7: by List Judge at directions hearing. • Parties can select appropriate ADR mechanism and change selection. 2007] OPERATING AN ENVIRONMENTAL COURT: LESSONS FROM AUSTRALIA 45 X. C ASE F LOW M AN AGEMENT ANA • The Court has a duty to facilitate the just, quick and cheap resolution of the real issues in matters. • The LEC actively case manages all matters in the court. • The LEC uses differential case management (DCM) in recognition of not only the different classes of jurisdiction but also the different nature of matters within a class. XI. P RA CTICE N OTES I MPLEMENT RACTICE D IFFERENTIAL C ASE M AN A GEMENT (DCM) ANA • The LEC has Practice Notes for: – Class 1 Development Appeals – Classes 1, 2 and 3 Miscellaneous Appeals – Class 3 Compensation Claims – Class 3 Valuation Objections – Class 4 Proceedings (civil enforcement and judicial) • Court has special information sheets and applications for Class 2 tree disputes. XII. D IFFERENTIAL C ASE M AN AGEMENT : ANA L ITIGA TION P LAN ITIGATION • Practice Notes and information sheets provide template litigation plans. • Parties and Court may select and adapt template to suit particular circumstances of the case. 46 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 • Select appropriate litigation steps, evidence and hearing. • Emphasis on ensuring proportionality to importance of case and costs. XIII. P RE - HEARING A TTEND ANCE O PTIONS TTENDANCE • The Court offers three types of callovers. – Actual callover : Parties’ representatives attend before Judge, Commissioner or Registrar. – Telephone : callover Parties’ representatives talk with Judge, Commissioner or Registrar in a conference call. – eCourt callover Parties’ representatives communicate with the Registrar and each other electronically using the internet. : XIV XIV.. H EARING O PTIONS • Court hearing : Available for all matters. • On-site hearing : Available for Class 1 and 2 matters. • Partial on-site : Available in Classes 1-3 matters, usually by commencing on site, taking evidence of lay witnesses such as resident objectors on site, and undertaking a view. • Video- Available in all matters for taking evidence of remote witnesses. hearing conferencing : 2007] OPERATING AN ENVIRONMENTAL COURT: LESSONS FROM AUSTRALIA 47 XV XV.. A CHIEVING O BJECTIVES T A DMINISTRA TION OF C OUR OURT DMINISTRATION • Objectives of court administration are equity, effectiveness and efficiency. • The LEC has adopted quantitative and qualitative performance indicators to measure its achievement of the objectives of court administration. • The LEC monitors and measures its performance by reference to these indicators. • The LEC publicly reports on its performance, including it in its Annual Review. • This ensures transparency and accountability. XVI. B ENEFITS OF L AND AND E NVIR ONMENT NVIRONMENT C OUR T : “D ESIRABLE D OZEN ” OURT 1. Rationalization • Integrated and coherent environmental jurisdiction; • Comprehensive jurisdiction results in “critical mass”; • Economic efficiencies for users and public resources in “one-stop shop”; • Facilitates better quality and innovative decision making in both substance and procedure by cross fertilization between different classes of jurisdiction; • Court becomes a focus of environmental legal decision making; and 48 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 • Increases awareness of users, government, environmental NGOs, civil society, legal and other professions and educational institutions of environmental law, policy and issues. 2. Specialization • Environmental issues and the legal and policy responses demand special knowledge and expertise. • Judges need to be educated about and attuned to environmental issues and the legal and policy responses. • Decision making quality, effectiveness and efficiency can be enhanced by the availability within the court of technical experts. • Specialization increases knowledge and expertise over time: “practice makes perfect.” 3. Multi-Door Courtroom • Rationalization, specialization and the availability of a range of court personnel facilitates a range of ADR mechanisms. • Rationalization means that the Court can deal with multiple facets of an environmental dispute and is not unduly limited by jurisdictional limits of a court. • e.g., Remedies for breach of law could include not only civil remedies of prohibitory or mandatory injunction but also administrative remedies of grant of approval to make conduct lawful in the future. • Specialization facilitates a better appreciation of the nature and characteristics of environmental disputes and selection 2007] OPERATING AN ENVIRONMENTAL COURT: LESSONS FROM AUSTRALIA 49 of the appropriate dispute resolution mechanism for each dispute. • Availability of technical experts (commissioners) in the court enables their use in conciliation and neutral evaluation, as well as improving the quality, effectiveness and efficiency of adjudication. 4. Superior Court of Record • Establishing an environmental court as superior court of record enlarges the jurisdiction of the court to include those powers only a superior court of record possesses. • e.g., The LEC has same powers as Supreme Court of New South Wales in relation to judicial review granting equitable remedies for civil enforcement, granting easements over land in certain circumstances, and appellate review of administrative (merits review) and criminal decisions. • A superior court of record enjoys a higher status than either an inferior court or tribunal. • Public acknowledgement of the importance of environmental issues. • Public pronouncement of the importance of the court and its decisions. • A superior court is better able to attract and keep high caliber persons for judicial appointments. 5. Independence from Government • Establishing an environmental court as a court, rather than as an organ of the executive arm of government, 50 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 and as a superior court of record, rather than an inferior court or tribunal, enhances independence. 6. Responsiveness to Environmental Problems • An environmental court is better able to address the pressing, pervasive and pernicious environmental problems that confront society (such as global warming and loss of biodiversity). • New institutions and creative attitudes are required. • Specialization enables use of special knowledge and expertise in both the process and the substance of resolution of these problems. • Rationalization enlarges the remedies available. 7. Facilitates Access to Justice • Access to justice includes access to environmental justice. • Principle 10 of the Declaration of Environment and Development done in Rio de Janeiro, Brazil, in 1992. • Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters done in Aarhus, Denmark on June 25, 1998 (in particular Recitals and Articles 1, 3 and 9). • A court can facilitate access to justice both by its substantive decisions and its practices and procedures. • Substantive decisions can uphold fundamental constitutional, statutory and human rights of access to justice. • The LEC has upheld statutory rights of public access to information; rights to public participation in legislative, 2007] OPERATING AN ENVIRONMENTAL COURT: LESSONS FROM AUSTRALIA 51 and administrative decision making, including requirements for public notification, exhibition and submission and requirements for adequate environmental impact assessment; and public rights to review and appeal legislative and administrative decisions and conduct. • A court can adopt practices and procedures to facilitate access to justice, including removing barriers to public interest litigation. • The LEC has facilitated public interest litigation by its decisions to: – construe liberally standing requirements; – not require an undertaking for damages as a prerequisite for granting interlocutory injunctive relief; – not require an impecunious public interest litigant to lodge security for the costs of the proceedings; – not summarily dismiss proceedings on the ground of laches, and – not require an unsuccessful public interest litigant to pay the costs of the proceedings. • A court can ensure the just, quick and cheap resolution of proceedings, thereby ensuring that rights of review and appeal are not merely theoretically but are actually available to all who are entitled. • The LEC has particularly adapted its practice and procedure for merits review appeals in Classes 1, 2 and 3 to this end. • Merits review appeals in Class 1, 2 and 3 are conducted with as little formality and technicality, and with as much 52 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 expedition, as the requirements of relevant statutes and as the proper consideration of the matters before the Court permit. • Further, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. • A court can address inequality of alms between parties. • Specialization and the availability of technical experts (commissioners) on the LEC redresses in part inequality of resources and access to expert assistance and evidence. • The LEC ensures: – Access for persons with disabilities; – Access to help and information (by information from the LEC website, information sheets and registry staff); – Access for unrepresented litigants (special fact sheet as well as other sources of self-help above); and – Geographic accessibility (use of eCourt, telephone conferences, video-conferencing, country hearings, onsite hearings and taking evidence on site). 8. Development of Environmental Jurisprudence • The LEC has shown that an environmental court of the requisite status has more specialized knowledge, has more cases and opportunity, and is more likely to develop environmental jurisprudence. 2007] OPERATING AN ENVIRONMENTAL COURT: LESSONS FROM AUSTRALIA 53 • The LEC’s decisions have developed aspect of substantive, procedural, restorative, therapeutic and distributive justice. • Examples of Environmental Jurisprudence: – Substantive justice justice: ecologically sustainable development, environmental impact assessment, public trust, sentencing for environmental crime. – Procedural justice: justice access to justice including removal of barriers to public interest litigation. – Distributive justice justice: inter and intragenerational equity, polluter pays principle, balancing public and private rights and responsibilities. – Restorati estorativve justice justice: victim-offender mediation and polluter pays principle for environmental crime. – Therapeutic justice justice: practice and procedure to improve welfare of litigants. 9. Better Court Administration • The LEC model facilitated better achievement of the objectives of court administration of equity, effectiveness and efficiency. • The LEC has, relative to other courts in New South Wales, minimal delay and backlog, and high clearance rates and productivity. 10. Unifying Ethos and Mission • Rationalization and specialization give an organic coherence to the Court and its work. • The nature of environmental law gives a unifying ethos and mission. 54 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 • “The primary focus of environmental law is not on the protection of private rights but on the protection of the environment for the public in general.”1 • The LEC personnel (judges, commissioners, registrars and court staff) all believe they are engaged in an important and worthwhile endeavor; the Court and its work matter and they are making a difference. • They view themselves as part of a team; not as individuals working independently. • There is an esprit de corps. • The users, legal representatives and experts also share in this spirit and mission. K. Value-Adding Function • The LEC’s decisions and work have generated value apart from the particular case or task involved. • In merits review appeals, the court’s decisions add value to administrative decision making. The court extrapolates principles from the cases and publicizes them. The principles can be used by agencies in future decision making. • Planning principles are published on the LEC website. • The LEC has also been innovator and national leader in court practices and procedures including: – eCourt case management; 1. Lord Woolf, “Are the Judiciary Environmentally Myopic” (1992), 4 Journal of Environmental Law 1 at 4. 2007] OPERATING AN ENVIRONMENTAL COURT: LESSONS FROM AUSTRALIA 55 – Expert evidence including court-directed joint conferencing and report, concurrent evidence and parties’ single experts; and – On-site hearings and taking evidence on site. • Other courts have followed LEC’s lead. 12. Flexibility and Innovation • Large established courts can be conservative and have inertia – change is slow and resisted. • The fact that the LEC is a separate court has enabled flexibility and innovation. Changes to practices and procedure could be achieved quickly and with wide support within the institution. • The LEC’s recent Practice Notes exemplify the LEC’s ability to adapt quickly and appropriately its practices and procedures. XVII. C ONCLUSION • The LEC is undoubtedly a model of successful environmental court. • It is long established – 27 years. • It has a pre-eminent international and national reputation. • It has received many favorable reviews and been a basis for recommendations for an environmental court. • It is continuing to adapt to meet the environmental challenges of the future. Standing to Sue in the Philippines: Right to a Clean En vir onment Envir vironment for the Unbor Unbornn∗ Justice Adolfo S. Azcuna∗∗ actoran,1 adopted The Philippine Supreme Court, in Oposa vv.. FFactoran an innovative procedure regarding standing to sue in the Philippines and the right to a clean environment for the unborn. The antecedents are: The controversy has its genesis in Civil Case No. 90-777 which was filed before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital ∗ Delivered at the Asian Justices Forum on the Environment: “Sharing Experiences to Strengthen Environmental Adjudication in Asia” on July 5, 2007 at the Edsa Shangri-La Hotel, Manila, Philippines. ∗∗ Justice Adolfo S. Azcuna was born in Katipunan, Zamboanga del Norte on February 16, 1939, the son of the late Felipe B. Azcuna and Carmen S. Sevilla. He received the degree of Bachelor of Arts, with academic honors, at the Ateneo de Manila in 1959 and the degree of Bachelor of Laws, cum laude, at the same institution in 1962. He was admitted to the Philippine Bar in 1963, placing fourth in the 1962 bar examinations. He forthwith embarked on a government career as Assistant Private Secretary of then Presiding Justice Jose P. Bengzon of the Court of Appeals in 1963 and thereafter, upon 1. G.R. No. 101083, July 30, 1993, 224 SCRA 792. 2007] STANDING TO SUE IN THE PHILIPPINES: RIGHT TO A CLEAN ENVIRONMENT FOR THE UNBORN 57 Judicial Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia , engaging in concerted action geared for the protection of the appointment of the latter to the Supreme Court in 1964, as his Private Secretary. Justice Azcuna taught International Law at his alma mater, Ateneo de Manila, from 1967 to 1986. In 1982, he completed post-graduate studies in International Law and Jurisprudence at the Salzburg University in Austria. Representing Zamboanga del Norte, he was elected as member of the 1971 Constitutional Convention. Subsequently, he was appointed as a member of the 1986 Constitutional Commission. He held several government posts during the term of President Corazon C. Aquino, first as Presidential Legal Counsel, then as Press Secretary and subsequently as Presidential Spokesman. In 1991, he was appointed Chairman of the Philippine National Bank. On October 17, 2002, he was appointed Associate Justice of the Supreme Court by President Gloria Macapagal-Arroyo. Justice Azcuna’s major publications include, “International Sales of Goods,” “Transnational Law Practice,” “International Law Teaching in the Philippines,” “Doing Business in the Philippines,” “Foreign Judgment [Monetary] Enforcements in the Philippines,” “Piercing the Veil of Corporate Entity: From Willets to Santos,” “ASEAN Conflict of Law,” and “The Supreme Court and Public International Law.” Justice Azcuna is married to Maria Asuncion Aunario, a professor of St. Scholastica’s College. They have four children: Anna Maria, Ma. Beatriz, Ma. Margarita and Miguel Enrique, Ma. 58 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 our environment and natural resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners. The complaint was instituted as a taxpayers’ class suit and alleges that the plaintiffs ‘are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country’s virgin tropical rainforests.’ The same was filed for themselves and others who are equally concerned about the preservation of said resource but are ‘so numerous that it is impracticable to bring them all before the Court.’ The minors further asseverate that they ‘represent their generation as well as generation yet unborn.’ Consequently, it is prayed for that judgment be rendered: x x x ordering defendant, his agents, representatives and other persons acting in his behalf to – 1. Cancel all existing timber license agreement in the country; 2. Cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. and granting the plaintiffs ‘x x x such other reliefs just and equitable under the premises.’ The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of 30 million hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique species for flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous 2007] STANDING TO SUE IN THE PHILIPPINES: RIGHT TO A CLEAN ENVIRONMENT FOR THE UNBORN Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country’s land area should be utilized on the basis of a ratio of 54 percent for forest cover and 46 percent for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as: (a) water shortages resulting from the drying up of the water table, otherwise known as the ‘aquifer,’ as well as of rivers, brooks, and streams; (b) salinization of the water table as a result of the intrusion therein of salt water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite; (c) massive erosion and consequential loss of soil fertility and agricultural productivity, with volume of soil eroded estimated at one billion cubic meters per annum − approximately the size of the entire island of Catanduanes; (d) the endangering and extinction of the country’s unique, rare and varied flora and fauna; (e) the disturbance and dislocation of cultural communities, including the disappearance of the Filipino’s indigenous cultures; (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity; (g) recurrent spells of drought as is presently experienced by the entire country; 59 60 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 (h) increasing velocity of typhoon winds which result from the absence of windbreakers; (i) the floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests; (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and generation of electric power; and (k) the reduction of the earth’s capacity to process carbon dioxide gases which had led to perplexing and catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the ‘greenhouse effect.’ Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of unquestionable demonstration and the same may be submitted as a matter of judicial notice. This notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the course of trial. As their cause of action, they specifically allege that: 7. Plaintiffs replead by reference the foregoing allegations. 8. Twenty-five years ago, the Philippines had some 16 million hectares of rainforests constituting roughly 53 percent of the country’s landmass. 9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said rainforests of 4 percent of the country’s land area. 2007] STANDING TO SUE IN THE PHILIPPINES: RIGHT TO A CLEAN ENVIRONMENT FOR THE UNBORN 10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left, barely 2.8 percent of the entire land mass of the Philippine archipelago and about 3 million hectares of immature and uneconomical secondary growth forests. 11. Public records reveal that defendant’s predecessors have granted timber license agreements (TLA’s) to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging purposes. A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex ‘A.’ 12. At the present rate of deforestation, i.e., about 200,000 hectares per annum or 25 hectares per hour – nighttime, Saturdays, Sunday and holidays included − the Philippines will be bereft of forest resources after the end of this ensuing decade, if not earlier. 13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued trend of deforestation to the plaintiff minor’s generation and to generation yet unborn are evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults. 14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands will work great damage and irreparable injury to plaintiffs − especially plaintiff minors and their successors − who may never see, use, benefit from and enjoy this rare and unique natural resource treasure. This act of defendant constitutes a misappropriation and/or impairment of the natural 61 62 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 resource property he holds in trust for the benefit of plaintiff minors and succeeding generations. 15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to protection by the State in its capacity as the parens patriae. 16. Plaintiffs have exhausted all administrative remedies with the defendant’s office. On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country. A copy of the plaintiffs’ letter dated March 1, 1990 is hereto attached as Annex ‘B.’ 17. Defendant, however, fails and refuses to cancel the existing TLA’s, to the continuing serious damage and extreme prejudice of plaintiffs. 18. The continued failure and refusal by defendant to cancel the TLA’s is an act violative of the rights of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines has been abundantly blessed with. 19. Defendant’s refusal to cancel the aforementioned TLA’s is manifestly contrary to the public policy enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of the State: (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other; (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos; and 2007] STANDING TO SUE IN THE PHILIPPINES: RIGHT TO A CLEAN ENVIRONMENT FOR THE UNBORN (c) to ensure the attainment of an environmental quality that is conducive to a life of dignity and well-being. (PD No. 1151, June 6, 1977). 20. Furthermore, defendant’s continued refusal to cancel the aforementioned TLA’s is contradictory to the Constitutional policy of the State to: (a) effect ‘a more equitable distribution of opportunities, income and wealth’ and ‘make full and efficient use of natural resources (sic).’ (Section 1, Ar ticle XII of the Constitution); (b) protect the nation’s marine wealth. (Section 2, Ibid ); (c) conserve and promote the nation’s cultural heritage and resources (sic). (Section 14, Article XIV, Id.); (d) protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. (Section 16, Article II. Id.) 21. Finally, defendant’s act is contrary to the highest law of humankind – the natural law – and violative of plaintiffs’ right to self-preservation and perpetuation. 22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the unabated hemorrhage of the country’s vital life support systems and continued rape of Mother Earth. On June 22, 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two grounds, namely: (1) the plaintiffs have no cause of action against him; and 63 64 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 (2) the issue raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. In their July 12, 1990 Opposition to the Motion, the petitioners maintain that: (1) the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory, and (3) the action presents a justiciable question as it involves the defendant’s abuse of discretion. On July 18, 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. In the said order, not only was the defendant’s claim−that the complaint states no cause of action against him and that it raises a political question–sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental law of the land. Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children but have also joined the latter in this case. The salient portions of the Court’s ruling are: Petitioners contend that the complaint clearly and mistakably states a cause of action as it contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20, and 21 of the Civil Code (Human Relations), Section 4 of the Executive Order (EO) No. 2007] STANDING TO SUE IN THE PHILIPPINES: RIGHT TO A CLEAN ENVIRONMENT FOR THE UNBORN 192 creating the DENR, Section 3 of Presidential Decree (PD) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of the generational genocide in Criminal Law and the concept of man’s inalienable right to selfpreservation and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent’s correlative obligation, per Section 4 of EO No. 192, to safeguard the people’s right to a healthful environment. It is further claimed that the issue of the respondent Secretary’s alleged grave abuse of discretion in granting Timber License Agreements (TLA’s) to cover more areas for logging than what is available involves a judicial question. Anent the invocation by the respondent Judge of the Constitution’s non-impairment clause, petitioners maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be considered protected by the said clause, it is well settled that they may still be revoked by the State when public interest so requires. On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary of which any relief is provided by law. They see nothing in the complaint but vague and nebulous allegations concerning an ‘environmental right’ which supposedly entitles the petitioners to the ‘protection by the state in its capacity as parens patriae.’ Such allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that the question of whether logging should be permitted in the country is a political question which should be properly addressed to the executive or legislative 65 66 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 branches of Government. They therefore assert that the petitioners’ recourse is not to file an action to court, but to lobby before Congress for the passage of a bill that would ban logging totally. As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without due process of law. Once issued, a TLA remains effective for a certain period of time – usually for 25 years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and regulations. Petitioners’ proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would be violative of the requirements of due process. Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an incident to the former. This case, however, has a special and novel element. Petitioners minors assert that they represent their generation 2007] STANDING TO SUE IN THE PHILIPPINES: RIGHT TO A CLEAN ENVIRONMENT FOR THE UNBORN as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibilities in so far as the right to a balanced and helpful ecology is concerned. Such a right, as hereinafter expounded, considers the ‘rhythm and the harmony of nature.’ Nature means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country’s forest, mineral, land, waters, fisheries, wildlife, offshore areas and other natural resources to the end that their exploration, development, and utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors’ assertion of their right to a sound environment constitutes, at the same time, the performance of their obligations to ensure the protection of that right for the generations to come. The locus standi of the petitioners having thus been addressed, we shall now proceed to the merits of the petition. After a careful perusal of the complaint in question and meticulous considerations and evaluations of the issues raised and arguments adduced by the parties, we do not hesitate to find for the petitioners and rule against the respondent Judge’s challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portion of the said order reads as follows: 67 68 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 xxxx After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the defendant. For although we believe the plaintiffs have but the noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Section 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its complaint against the herein defendant. Furthermore, the court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to the sacred principle of ‘Separation of Powers’ of the three co-equal branches of the Government. The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to ‘impairment of contracts’ abhored (sic) by the fundamental law. We do not agree with the trial court’s conclusion that the plaintiffs failed to allege with sufficient definiteness a specific legal right invoked or specific legal wrong committed, and that the complaint is replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions. 2007] STANDING TO SUE IN THE PHILIPPINES: RIGHT TO A CLEAN ENVIRONMENT FOR THE UNBORN The complaint focuses on one specific fundamental legal right − the right to a balanced and healthful ecology which, for the first time in our nation’s constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides: The State shall protect and advance the right of the people to a balanced and a healthful ecology in accord with the rhythm and the harmony of nature. This right unites with the right to health which is provided for in the preceding section of the same article: SEC. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation − aptly and fittingly stressed by the petitioners − the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of human kind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state the solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all 69 70 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 else would be lost not only for the present generations, but also for those to come − generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. During the debates on this right in one of the plenary sessions of 1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question: Mr Mr.. Villacor ta ta: Does this section mandate the State to provide sanctions against all forms of pollution – air, water and noise pollution? Mr. Azcuna Azcuna: Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance. The said right implies, among many other things the judicious management and conservation of the country’s forests. Without such forests, the ecological or environmental balance would be irreversibly disrupted. The Court, therefore, adopted the novel approach of “intergenerational responsibility” and “intergenerational justice,” based on the right to a clean environment provided for in the new Constitution, as to which the standing of the petitioners minors to sue for themselves and for those yet unborn was recognized. Role of Exper Expertt Witnesses and Concur Concurrrent Evidence in En vir onmental Adjudication ∗ Envir vironmental Justice Brian J Preston∗∗ I. ENVIRONMENTAL PROBLEMS REQUIRE EXPERT EVIDENCE ...................................................................... 73 II. NATURE OF ENVIRONMENTAL PROBLEMS ......................... 73 III. FUNCTION OF EXPERT EVIDENCE ........................................ 74 IV. EXPERT EVIDENCE IN ADVERSARIAL SYSTEMS ............... 74 V. PROBLEMS WITH EXPERT EVIDENCE .................................... 74 VI. INTEGRITY OF EXPERT EVIDENCE ........................................ 74 VII. COMPREHENSIBILITY OF EVIDENCE ..................................... 75 VIII. EFFICIENCY .................................................................................... 76 ∗ Delivered at the Asian Justices Forum on the Environment: “Sharing Experiences to Strengthen Environmental Adjudication in Asia” on July 5, 2007 at the EDSA Shangri-La Hotel, Mandaluyong City, Philippines. ∗∗ Justice Brian J Preston was appointed Chief Judge of the Land and Environment Court of New South Wales on November 14, 2005. Prior to this appointment he was Senior Counsel practicing from 11th Floor Wentworth Chambers. Justice Preston graduated in 1981 from Macquarie University with a Bachelor of Arts and a Bachelor of Law and Letters with first class honors. He was awarded an Advanced Certificate in Urban Horticulture with Distinction from the Northern Sydney Institute of TAFE and the TAFE State Medal in Urban Horticulture in 1999 and an Award of Excellence in 2000. 72 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 IX. RESPONSES TO THE PROBLEMS ............................................. X. RULES OF COURT AND CODE OF CONDUCT ................. XI. JOINT CONFERENCING OF EXPERTS ................................... XII. CONCURRENT EVIDENCE ...................................................... XIII. BENEFITS OF CONCURRENT EVIDENCE ........................... XIV. PARTIES’ SINGLE EXPERT ........................................................ XV. USING COURT’S OWN EXPERTISE ...................................... XVI. APPROPRIATE SELECTION OF EVIDENCE METHOD ................................................................ 76 76 78 78 79 79 80 80 Justice Preston was admitted as a solicitor in New South Wales in 1982. He worked as an associate to a judge of the Supreme Court of the Northern Territory and also for two of Australia’s largest firms of solicitors in natural resources law and litigation. He was the first principal solicitor of the Environmental Defenders Office in New South Wales, which was Australia’s first public interest environmental law center. Justice Preston was called to the Bar in New South Wales in 1987 and was appointed Senior Counsel (the equivalent of Queens Counsel) in 1999. There he developed a practice in environmental and planning law and administrative law, primarily in New South Wales. Justice Preston lectures (part-time) at the University of Sydney and is a member of the Australian Centre for Environmental Law in Sydney. He has lectured in the post-graduate program for 15 years. He established two post-graduate law courses, Biodiversity Law and Environmental Dispute Resolution and continues to teach Biodiversity Law. Justice Preston has also been invited to teach in post-graduate law programs at other universities in Australia, including Environmental Impact Assessment at the University of Adelaide and Environmental Dispute Resolution at the Australian National University in Canberra. 2007] ROLE OF EXPERT WITNESSES AND CONCURRENT EVIDENCE IN ENVIRONMENTAL ADJUDICATION 73 I. E NVIR ONMENT AL P ROBLEMS R EQ UIRE NVIRONMENT ONMENTAL EQUIRE E XPER T E VIDENCE XPERT The nature of environmental problems demand expert evidence for their resolution by adjudication. II. N ATURE OF E NVIR ONMENT AL P ROBLEMS NVIRONMENT ONMENTAL • Environmental problems are polycentric and multidisciplinary; • First law of ecology – everything is connected to everything else; • Second law of ecology – everything must go somewhere (in nature there is no such thing as waste); • Third law of ecology – nature knows best (any major human change to a natural system is likely to be detrimental to the system); • Fourth law of ecology – there is no such thing as a free lunch (every gain is won at some cost); Justice Preston has taught in 2000, 2002 and 2004 in the Diploma of Arboriculture at the Northern Sydney Institute of TAFE, Ryde Campus in courses on Environmental Laws and Regulations and the Land and Environment Court including providing training to be an expert witness in courts. 74 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 • The scale of environmental problems requires a holistic solution; • Environmental problems have wide, even transboundary impacts, e.g., climate change, forest fires, hazardous waste. III. F UNCTION OF E XPER T E VIDENCE XPERT Expert evidence is intended to assist the adjudicator draw correct inferences from observations of fact. IV T E VIDENCE IV.. E XPER XPERT IN A DVERSARIAL S Y STEMS In adversarial systems of adjudication, expert witnesses are engaged by each party and are called to give evidence in the party’s case before the court. V. P ROBLEMS WITH E XPER T E VIDENCE XPERT • The traditional adversarial approach leads to problems with expert evidence including the: – Integrity of evidence; – Comprehensibility of evidence; and – Efficiency of adjudicative process. VI. I NTEGRITY • OF E XPER T E VIDENCE XPERT Experts in the adversarial system: – Identify with and justify engaging party’s case (they would not be giving evidence for them otherwise); 2007] ROLE OF EXPERT WITNESSES AND CONCURRENT EVIDENCE IN ENVIRONMENTAL ADJUDICATION 75 – Give evidence infected by adversarial bias (consciously or unconsciously); – See their role as a contest with cross examining lawyers for the other party; and – Do not engage directly with the other party’s expert by conferring or in giving evidence. VII. C OMPREHENSIBILITY OF E VIDENCE • Generally, courts are lay tribunals of fact without any expertise in the scientific, technical or professional discipline of the expert. • Yet the court is required to resolve disputes between competing experts who may have expertise at the highest level. • Courts have adopted rules of evidence to assist in assessing the reliability of expert evidence: – Relevance of helpfulness test; – Specialized knowledge test; – Qualifications test; and – Basis test. • The issues as to integrity of expert evidence undermine the object of these tests; reliability is affected. • But so is comprehensibility. The court is not able to have independent, dispassionate, objective evidence or a genuine dialogue on a common agenda. 76 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 VIII. E FFICIENCY • The traditional, sequential calling of oral expert evidence in each party’s case, with examination in chief (direct), crossexamination and re-examination (re-direct), is repetitive and time-consuming. • It requires the putting of one witness’ evidence to the other and vice versa, through the medium of a non-expert lawyer with the risk of distortion or loss of meaning in translation. IX. R ESPONSES T O THE P ROBLEMS • The Land and Environment Court of New South Wales has responded by: – Adopting Court rules on expert evidence; – Requiring experts to adhere to a Code of Conduct; – Requiring joint conferencing of experts; – Requiring experts to give concurrent evidence; – Appointing single experts; and – Using expertise of technical experts on the court (commissioners). X. R ULES OF C OUR T OURT AND C ODE OF C ONDUCT • Court rules reflect the test for ensuring reliability of expert evidence (they supplement the rules of evidence where such rules apply). • They also address problems of partiality. 2007] ROLE OF EXPERT WITNESSES AND CONCURRENT EVIDENCE IN ENVIRONMENTAL ADJUDICATION 77 • Court Rules and the incorporated Code of Conduct for Expert Witnesses provide that experts’ overriding duty is to the Court. They are not an advocate of the engaging party. • They must disclose pre-existing relationships with the engaging party and fee arrangements. • They must disclose all relevant facts and circumstances upon which the opinion is founded and advise if there is any qualification on their opinion (such as further research or investigation needed). • They must advise if there is any change in facts or circumstances or their opinion. • They must read and agree to be bound by the Code of Conduct before their evidence will be admissible. • Court rules emphasize that the court retains control over the giving of expert evidence. • This is necessary to ensure integrity of the evidence, proportionality and the just, quick and cheap resolution of the real issues in proceedings. • The court may restrict evidence to that which is reasonably required to resolve proceedings. • The court may direct that: – Expert evidence may not be adduced on a specified issue, either at all or except by leave of the court, or conversely that expert evidence may be adduced only on specified issues, and – Expert evidence be given on an issue by a single expert engaged by the parties or appointed by the court. 78 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 – If more than one expert is necessary to give evidence on an issue, the number of experts be limited; – The experts in relation to the same issue confer, either before or after preparing expert reports in relation to a specified issue; and – An expert who has prepared more than one expert report, prepare a single report that reflects the evidence in chief. XI. J OINT C ONFERENCING OF E XPER TS XPERTS • Experts are directed by the court to jointly confer and report in writing to the court. • The conference is to be a genuine dialogue in a common effort to reach agreement. • The joint report is to state the issues on which they agree, the issues on which they disagree and the reasons for any disagreement. • Lawyers for the parties and the parties are not permitted to attend experts’ conference without leave of the court. XII. C ONCURRENT E VIDENCE • The experts, grouped in disciplines, give evidence at the hearing concurrently. • Experts are sworn in together and sit next to each other in the witness box or bar table. • The presiding judge or commissioner takes an active role in the process; a “master of ceremonies.” 2007] ROLE OF EXPERT WITNESSES AND CONCURRENT EVIDENCE IN ENVIRONMENTAL ADJUDICATION 79 • An agenda for oral evidence is settled. Usually the issues disagreed in the joint report form the basis of the agenda. • Usually each expert in turn is given an opportunity to explain their opinion on each issue. • There may be a dialogue in the form of a structured, orderly debate. Experts may ask questions from each other. • At the conclusion of this dialogue, the court may ask questions. • Parties are then given an opportunity to examine the experts. This may involve examination in chief and cross examination. XIII. B ENEFITS OF C ONCURRENT E VIDENCE • Focused, structured and sequential analysis of issues; point and counterpoint; • Genuine dialogue between experts; • Immediate peer review of each other’s evidence; • Court control emphasizes overriding duty of experts to assist court; • Lessens unhelpful confrontation with cross examining lawyers; and • Time and cost efficient process. XIV TIES ’ S INGLE E XPER T XIV.. P AR ARTIES XPERT • The Court has extensively appointed a single expert to address particular issues. 80 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 • Some issues and cases lend themselves more to the use of single experts. • The parties agree on the identity of the single expert or failing agreement, the Court appoints one. • The parties jointly engage the expert and agree on the remuneration and their share. • The expert’s duty is to the court and the expert reports to the court. • Benefits include the single expert’s independence and impartiality and the savings in cost and time that come from the use of a single expert. XV T ’ S O WN E XPER TISE XV.. U SING C OUR OURT XPERTISE • As a specialist court, the LEC has technical experts as commissioners. • Commissioners are able to inform themselves as they think fit, including using their own special knowledge and expertise. • This has resulted in some cases in experts not being called to give evidence in disciplines in which the commissioner presiding has expertise. • Procedural fairness is of course observed. XVI. A PPR OPRIA TE S ELECTION PPROPRIA OPRIATE OF E VIDENCE M ETHOD • The court encourages the selection of the appropriate method of providing expert evidence in the circumstances of each case. 2007] ROLE OF EXPERT WITNESSES AND CONCURRENT EVIDENCE IN ENVIRONMENTAL ADJUDICATION 81 • Different cases may justify different methods and even in a single case, different issues may justify different methods. • The Court’s Practice Notes summarize the different methods and guidelines for selection of appropriate methods. Class Actions in Indonesia ∗ Judge Andriani Nurdin∗∗ I. II. III. DEFINITION .................................................................................... BENEFITS ........................................................................................ LEGAL BASES ................................................................................. A. Principles B. Permission/Enabling Provisions IV. PERCEPTIONS THAT NEED TO BE CLARIFIED ....................... V. CLASS ACTION SUITS ................................................................ A. Before Recognition B. Post Recognition VI. REFLECTION ON THE IMPLEMENTATION OF CLASS ACTIONS IN INDONESIA ........................................................... VII. PROCEDURAL STAGES ................................................................. VIII. REGULATION OF THE SUPREME COURT OF THE REPUBLIC OF INDONESIA, NUMBER 1 OF 2002 CONCERNING CLASS ACTION PROCEDURES ..................... A. Chapter I: General Provisions B. Chapter II: Methods and Prerequisites C. Chapter III: Notification D. Chapter IV: Opt Out E. Chapter V: Judgments F. Chapter VI: Closing Provisions 83 84 85 86 87 88 90 90 ∗ Delivered at the Asian Justices Forum on the Environment: “Sharing Experiences to Strengthen Environmental Adjudication in Asia” on July 5, 2007 at the Edsa Shangri-La Hotel, Mandaluyong City, Philippines. ∗∗ Judge Andriani Nurdin currently serves as the Deputy Chief Judge of The Central Jakarta District Court. Since graduating 2007] CLASS ACTIONS IN INDONESIA 83 I. D EFINITION • Under the Indonesian Civil Procedural Law, a class action gives the right to one person or a group of people as plaintiff from the Faculty of Law of the University of Indonesia in 1981, Judge Nurdin has served in various positions in the different court levels in West and Central Java. Among these, she served as Judge in the District Courts of Purwakarta and Sumber, West Java, and in Wonogiri, Central Java. She was also assistant of the Justice of Supreme Court in 1993 to 2000 and appointed as a Commercial Court Judge in 1998. She holds a Master of Business Law degree from the University of Indonesia and had trainings on environmental law and enforcement, commercial law, and public international trade law from a range of universities in Australia. Judge Nurdin has been the Chair of the Indonesia Associate of Environmental Law and Enforcement Training Alumni since 2003 and Commissioner of the Indonesian Judges Organization since 2002. 84 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 to file a claim on behalf of himself or themselves or to represent great number of people with similar issues, facts, circumstances, and damages. • The class representative is one person or a small group of people filing a claim and at the same time representing a larger group of people. • Class members are those who are represented by the class representative (they act as absentee plaintiff). • Class action is a legitimate choice when the claim involves a large number of people and damages, wherein it will not be effective for a claim to be filed individually, separately, jointly under one suit based on conventional procedures. II. B ENEFITS • Judicial economy (economic/low cost process) for the plaintiff, defendant, and the court. • Access to justice. The amount of the damages filed by individual plaintiff is not equal with the cost. There is no need to identify the names of class members, thus it prevents any forms of intimidation to the class members. • Behavior modification (promotes the precautionary behavior). Class action can “punish” the liable party, as proven by the court, to pay the damages. The amount is determined by the whole victims in a systematic way. This procedure cautions every liable party (private or government) to be more careful in running their activities. CLASS ACTIONS IN INDONESIA 2007] 85 III. L EGAL B ASES A. Principles 1. Act No. 14 of 1970 on the basic provision on Judicial Power Article 4(2) x x x Judicial process is conducted in simple, fast and low cost. B. Per mission/Enab ermission/Enab mission/Enabling Proovisions ling Pr 1. Environmental Management Act No. 23 of 1997 Article 37(1): The community has the right to bring a class action to court and/or report to law enforcers concerning various environmental problems which inflict losses on the life of the community. Elucidation, Article 37(1): What is meant by the right to bring a class action in this subsection is the right of a small group of the community to represent the community in a large number which has had losses inflicted on it. Such representation is to be according to a basis of sameness of problems, legal facts, and demands which have been given rise to because of environmental pollution and/or damage. 2. Consumer Protection Act No. 8 of 1999 Article 46(I): A lawsuit of the violation made by a business agent may be filed by: a. x x x 86 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 b. a group of consumers sharing common interests. Elucidation, Article 46(1): x x x This law recognizes class actions. Class action must be filed by the real consumers having damages and can be proven by law, i.e., (proven by) the transaction evidence x x x. They must be lodged by consumers who have been severely affected and legally proved. One of the evidence is transaction record. 3. Act No. 41 of 1999 on Forestry Article 71(1): Community has the right to render class action to a court and/or report to the law upholder on forest damage which inflicts a loss on livelihood of community. Article 71(2): The right to sue as referred to in paragraph (1) is limited to claims on forest management which is contradicting prevailing laws and regulations. IV CEPTIONS IV.. P ER ERCEPTIONS THA T THAT N EED T O BE C LARIFIED • Class action is often misunderstood as the non-governmental organization (NGO) legal standing. • Class action is understood as a claim that has to be completed with a power of attorney signed by the whole class members. • Class action is a claim that does not need to be proven as it is in conventional claim procedure. 2007] CLASS ACTIONS IN INDONESIA 87 • Class action is a claim that has to put the names of the whole class members (beside the class representative’s name) in the filing document. The number of the class representative needs to be big (to sound “politically amplified,” or because people do not know that the class representative can be composed of few people). V. C LASS A CTION S UITS A. Bef or ecognition Befor oree R Recognition • Muchtar Pakpahan v. DKI Jakarta Governor and DKI Health Department Head of Territory Kakanwil (1988) (dengue endemic case); • RO Tambunan v. Bentoel Remaja, the advertising company, and private Prambors Niaga Radio (1987); • Nine laborers of PT Patal Senayan (representing 1,200 laborers) v. PT Industri Sandang I (in 1992 in South Jakarta Court District); and • Yayasan Lembaga Konsumen Indonesia (YLKI) v. PT PLN Persero State Electric Company (134/Pdt.G/ 1997/PN Jkt Sel) (West Java electricity blackout). B. Post R ecognition Recognition • Claim of 27 fishermen (representing 1,145 heads of family) v. 3 companies in Metro Lampung (Case No. 134/Pdt.G/1997/PN Jkt Sel); • Claim of Yulika Erika Sipayung (representing 1,016,929 community of Tuban Regency) v. Tuban Local Parliament, Commission A (Case No. 55/Pdt.G/2000/ PN Tuban); 88 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 • Claim of LBH Riau (Firdaus Basyir) v. a plantation company in Riau (haze case due to forest fire) (Case No. 32/Pdt.G/2000/PN PBR); • Claim of 139 “becak” drivers (representing 5,000 other becak drivers) in DKI Jakarta v. Republic of Indonesia Government c.q. Menteri Dalam Negeri c.q. Head of Jakarta Special District (Case No. 50/Pdt.G/2000/PN Jkt Pst); • Claim of 37 members of Deli Serdang community v. Local Parliament, Deli Serdang Regency and Head of Regency of Deli Serdang (Case No. 134/Pdt.G/2001/ PN LP); • Claim of Ali Sugondo Cs. and others (10 people) [representing 34 million East Java citizen] v. 18 members of Local Parliament, B Commission, East Java Province (comparison study of the East Java Parliament members) [Case No. 593/Pdt.G/2000/PN SBY]; • Claim of Didik Hadiyanto Cs. (26 people) v. Saleh Ismailo Iskandar SH (East Java Parliament member) in the case of “Ismailo’s statement that Surabaya is a city of hooker, waste, and flood” (Case No. 210/Pdt.G/2001/ PN SBY). VI. R EFLECTION ON THE I MPLEMENT ATION MPLEMENTA C LASS A CTIONS IN I NDONESIA OF • The plaintiff, defendant, and the court are often trapped in a perception that a class action is identical with the claim from “public interest organization.” • The claim is often not in the format of a class action claim (in the claim document, there are no explanation about: class 2007] CLASS ACTIONS IN INDONESIA 89 identification, similarity between the class representative and class members, damages and its distribution). • Before the class action was recognized in the system, claims were rejected due to the lack of legal bases (not regulated in procedural law), or the perception that class action was only relevant in a certain law system (Anglo Saxon). • Plaintiff‘s perception that a large number of people as class representative will be politically beneficial (as a “public pressure”) compared to only few people. • Determination whether the class action claim is accepted or not can be considered: – before the process/pre-proceeding; and – at the end of the process at the same time with the judge’s verdict on the case. • Mechanisms to be determined by the class member are not understood yet: opt in, opt out, or both? • Some courts have already stipulated notification procedure. However, it does not describe in detail how to notify, what, who, and when it should notify. These are confusing and often considered as not important elements in the process. • It is often understood that notification should be published in print media (cost implication) implication). • Even if there is a court order to announce the notification, the plaintiff will not announce/publish the notification in mass media due to the cost. • An independent Team/Panel to clarify and distribute the damages is planned to be established as the mechanism to implement the judge’s verdict for the class action 90 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 (unfortunately, this is still in the process and can not be implemented yet). VII. P ROCEDURAL S TAGES 1. Determination stage regarding the claim (whether the claim is feasible to be a class action claim); 2. Determination stage regarding liability: – Fault – Damages – Causality 3. Determination stage regarding the damages/compensation (types and amount); and 4. Administration stage for the damages. VIII. R EGULA TION OF THE S UPREME C OUR T OF THE EGULATION OURT R EPUBLIC OF I NDONESIA, N UMBER 1 OF 2002 C ONCERNING C LASS A CTION P ROCEDURES A. Chapter I: General Pr Proovisions This chapter consists of definition of key concepts including class action, class representative, class member, subclass, notification, and opt out mechanism. B. Chapter II: Methods and Prerequisites • Claim criteria for class action (Article 2); • Formal requirements for a class action claim (Article 3); • Power of attorney (Article 4); • Judge’s decision for the acceptance/refusal of the class action claim (Article 5); 2007] CLASS ACTIONS IN INDONESIA 91 • Encouraging parties to settle a case amicably (Article 6). C. Chapter III: Notification • Notification methods available to class members. An “opt out” mechanism is also provided for class members who want to opt out of the class membership (Article 7). • Notification facilities. D. Chapter IV IV:: Opt Out • A party who intends to “opt out” of the class action should fill out the form as provided in the attachment of the Regulation of the Supreme Court (Article 8). • A party who wants to be a class member is not required to fill out the form (or to do a specific act). E. Chapter V: JJudgments udgments Verdict must cover the following (Article 9): • Detailed amount of damages; • The classes and/or subclasses entitled to damages; • The distribution mechanism of damages, (mechanism to distribute compensation); and • The measures to be taken by class representatives in determining and distributing damages. F. Chapter VI: Closing Pr Proovisions • Any other provisions that have been regulated by the Law of Civil Procedures shall remain valid (Article 10); • The Regulation of the Supreme Court of the Republic of Indonesia shall be effective on the date it is enacted, April 26, 2002. Practical R emedies and Remedies Pub lic Inter est Litig ation: Public Interest Litigation: Yamuna Ri oject ∗ Rivver Cleaning Pr Project Chief Justice Vijender Jain∗∗ I. INTRODUCTION ................................................................................ 93 II. CAUSES OF POLLUTION ................................................................. 95 III. COURT’S INTERVENTION ............................................................... 97 A. Riverbed Encroachment B. Unauthorized Colonies/Encroachment of Public Land C. Industrial Pollution D. Sewage Treatment Plants Capacity ∗ Delivered at the Asian Justices Forum on the Environment: “Sharing Experiences to Strengthen Environmental Adjudication in Asia” on July 5, 2007 at the Edsa Shangri-La Hotel, Mandaluyong City, Philippines. ∗∗ Chief Justice Vijender Jain was born on August 2, 1946. He enrolled as an Advocate on July 25, 1969. Justice Jain practiced in the Supreme Court of India and High Courts, but mainly in the Delhi High Court in Civil, Constitutional, Taxation, and company matters. He has been the recipient of many international awards for friendship between the people of India and other countries. Justice Jain was designated Senior Advocate in May 1990 by the Delhi High Court, and he was appointed as permanent Judge in the Delhi High Court from December 24, 1992. He has contributed and participated in many international symposium and seminars dealing with Human Rights, Alternate Dispute Redressal mechanisms, private and public international law, and the applicability of the International Law into the Municipal Law. He has represented India in various international conferences and also participated 2007] PRACTICAL REMEDIES AND PUBLIC INTEREST LITIGATION: YAMUNA RIVER CLEANING PROJECT 93 I. I NTR ODUCTIO N NTRODUCTIO ODUCTION The total length of the Yamuna River up to its point of confluence with the Ganges at Allahabad is 1,376 km. Its catchment area is spread over 366,220 sq. km. and it falls within the seven States of India. Besides irrigation, the river is a source of drinking water in the Conferences of International Law Association. In addition, Justice Jain is a member of its Committee on Human Rights. Justice Jain is also Honorary Secretary of International Law Association, India Chapter. He is one of the Indian Judges whose judgment on Intellectual Property Rights has been reported in foreign journal [i.e., (2003) Fleet Street Reports 18]. Recently, Justice Jain was invited by the Thai Supreme Court to share the experience of India in the field of environmental laws and to help in setting up Green Benches in Thailand. He was elected as the Executive Committee member of Asia Pacific Environmental Forum (APJEF) sponsored by the Thai Supreme Court, Asian Development Bank (ADB), and United States Agency for International Development (USAID), with Sri Lanka, Philippines, China, Indonesia, and Vietnam as its members. He was Chairman of the High Court Legal Services Committee Delhi and the Executive Chairman of Delhi Legal Services Authority. Justice Jain is the President of Asia Pacific Jurist Association (APJA). Justice Jain has rendered many outstanding judgments in his illustrious career of 14 years as a Judge of the Delhi High Court. He has made several contributions in making public interest litigation an effective tool for protection and conservation of the environment and restoring the rule of law, including action taken against unauthorized construction in Delhi; cleaning of the River ‘Yamuna’ from encroachments; directing redevelopment of the historic mosque – ‘Jama Masjid’ and its complex in Delhi; apart from other numerous orders that have generated a new hope in the larger sections of the society. Justice Jain’s landmark judgments include: Privacy in 94 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 and bathing and therefore, affects the habitation of many citizens on its banks. The River Yamuna is the lifeline for the citizens of Delhi. Phoolan Devi’s Case; Concept of Collective Responsibility of a Minister; Power of a Successor Minister to Over-rule the Decision of His Predecessor; Concept of Cabinet Form of Government and Doctrine of Collective Responsibility; Power of Judicial Review in Defense Matters in cases like Lt. General R.S. Kadiyan v. Lt. General Kalkat and Air Marshal Masand; and in other fields of Civil, Arbitration, Intellectual Property Rights, Rent, Constitutional, and Service matters. His Lordship took over as Chief Justice of Punjab and Haryana High Court on November 28, 2006. Immediately after taking over as Chief Justice, his Lordship ensured that Subordinate Courts in Punjab and Haryana should have good judicial complexes. Accordingly, in a very short span, his Lordship laid the foundation stone of a judicial complex at Moonak, Bathinda, Nabha, Rajpura, Panipat, Chandigarh, Malerkotla, Dasuya, Mohindergarh, and Pehowa. His Lordship also ensured that a war be waged against female foeticide and organized a seminar at Patiala, which was attended by Honorable Mr. Justice Y. K. Sabharwal, the then Chief Justice of India; Honorable Mr. Justice Ashok Bhan, Honorable Judge of Supreme Court; CM Punjab and other dignitaries and also at Kuruksehtra, which was attended by Honorable Law Minister of India Shri Hans Raj Bhardwaj, CM Haryana Chaudhary Bhupender Singh Hooda, and also inaugurated the Punjab and Haryana Chapter of APJA. 2007] PRACTICAL REMEDIES AND PUBLIC INTEREST LITIGATION: YAMUNA RIVER CLEANING PROJECT 95 In Delhi, the 22 km. stretch of River Yamuna from Wazirabad to Okhla is the most critical segment from pollution angle with Dissolved Oxygen (DO) and Biological Oxygen Demand (BOD) levels of nil and 28-30 mg/l respectively. II. C AUSES OF P OLL UTION OLLUTION • Some 3.5 lakh people live in the 62,000 Jhuggis that had come up on the Yamuna riverbed and its embankments. • Ten to 15 years ago, large quantities of Delhi’s sewage were used for irrigating agricultural lands. Today, agricultural lands had been concerted into unauthorized residential colonies and hence drainage of wastewater is difficult in the capital. • Discharge of untreated and industrial effluent into drains leading to River Yamuna and direct discharge into the river. 96 THE PHILJA JUDICIAL JOURNAL • Lack of sewage treatment capacity of the domestic discharges. • Delhi alone contributes around 3,296 MLD (million liters per day) of sewage by virtue of drains outfalling in Yamuna. This is more than that of all the class two cities of India put together. The low perennial flow in Yamuna and the huge quantity of waste it receives had given it the dubious distinction of being one of the most polluted rivers of the country. • In 1993-200, the Government of India started Yamuna Action Plan (YAPI) under the joint venture of the National River Conservation Directorate, the Japan Bank for International Cooperation and the Municipal Corporation of Delhi (MCD) and the Delhi Government. [VOL. 9:28 2007] PRACTICAL REMEDIES AND PUBLIC INTEREST LITIGATION: YAMUNA RIVER CLEANING PROJECT 97 • However, the quality of River Yamuna did not show any improvement. The efforts put up by the Government and other agencies were not able to bring any requisite desired result. The main source of pollution, i.e., discharge of untreated sewage by the people living on the banks of the river continued unabated, as the same was not addressed. III. C OUR T ’ S I NTER VENTION OURT NTERVENTION A. Riverbed Encroachment • In 2003, the Delhi High Court while deciding a Writ Petition issued directions to the Delhi Government, the Delhi Development Authority (DDA) and MCD to remove the unauthorized constructions and the Jhuggies in various stretches of the riverbed of the Yamuna River in Delhi. • The Government and other agencies failed to carry out Court’s orders. • On March 3, 2003, the Delhi High Court observed as under: River Yamuna, which is a major source of water, has been polluted like never before. Yamuna bed and both the sides of the river have been encroached by unscrupulous persons with the connivance of the authorities. Yamuna bed as well as its embankment has to be cleared from such encroachments. Rivers are perennial source of life and throughout the civilized world, rivers, its water and its surroundings have not only been preserved, beautified but special efforts have been made to see that the river flow is free from pollution and environmental degradation. The Yamuna River has 98 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 been polluted not only on account of dumping of waste, including industrial waste, medical waste as well as discharge of unhygienic material but the Yamuna bed and its embankment have been unauthorizedly and illegally encroached upon by construction of pucca houses, jhuggies and places for religious worship, which cannot be permitted anymore. As a matter of fact, under the garb of reallocation, encroachers are paid premium for further encroachment. Delhi, with its present population of 20 million people, can take no more. In view of the encroachment and construction of jhuggies/pucca structures on the Yamuna bed and its embankment, and given that there is no drainage facility, sewerage water and other filth is discharged in Yamuna Nagar. The citizens of Delhi are silent spectators to this state of affairs. No efforts have been made by the authorities to remove such unauthorized habitation from Yamuna bed and its embankment. • The Court issued the following directions: – The court directed all the authorities concerned, i.e., DDA, MCD, Public Works Department (PWD), Delhi Jal Board (DJB) as well as the Central Government to forthwith remove all the unauthorized structures, jhuggies, places of worship and/or any other structure which are unauthorizedly put in Yamuna bed and its embankment, within two months. – Mr. Amarjit Singh Chandhok, Senior Advocate, was appointed as amicus curiae to assist the court. 2007] PRACTICAL REMEDIES AND PUBLIC INTEREST LITIGATION: YAMUNA RIVER CLEANING PROJECT 99 • October 26, 2005 – Thereafter, the matter was listed before another Division Bench and no order was passed. On October 26, 2005, again the Bench issued the following directions: – TheVice Chairman, Commissioner of MCD and Chief Secretary of Government of National Capital Territory (NCT) of Delhi to file the status report with regard to the compliance of order dated March 3, 2003. – It was also observed that if compliance was not found satisfactory, then the Court will have no other alternative except to appoint a Committee consisting of some officers with some retired judge of the Court as chairperson and some other retired high ranking officers to periodically monitor the compliance of order. • November 16, 2005 – Nothing much was done by the authorities. – The Court constituted the Committee composed of: 1. Chairperson, Ms. Justice Usha Mehra, a retired Judge of Delhi High Court, 2. Mr. V. N. Singh, a former Commissioner of Police; 3. Vice Chairman, Delhi Development Authority; 4. Commissioner, Municipal Corporation of Delhi; 5. Chief Engineer, UP State Irrigation Department; and 100 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 6. A retired Additional District Judge, Shri S. M. Aggarwal, as Convenor of the Committee. • March 29, 2006 – The Court issued the following directions: 1. Directions to all the courts subordinate to Delhi High Court not to deal with any matter with regard to the grant of stay against the removal of illegal encroachers from the river embankment. 2. That no construction should take place within the vicinity of 300 meters of either side of Yamuna River. 3. The Court directed the Committee to take the help of other agencies who have satellite mapping instrument and technology available so as to have the mapping of all the jhuggi cluster and other structures on the western embankment of Yamuna River. – The Court noticed: 1. That due to the effective monitoring by the court Committee, the Chief Engineer of the Irrigation Department has fully cleared the entire area and has removed all the encroachments with their belongings from the site which has now been fenced with barbed wires. 2. The Court also noted the concern that Rs. 25 crores were received from the Government of India for the purpose of rehabilitation and development of Green at Yamuna riverbanks. 2007] PRACTICAL REMEDIES AND PUBLIC INTEREST LITIGATION: YAMUNA RIVER CLEANING PROJECT 101 3. A clarification application was filed before the Court asking whether the orders dated March 3, 2003 and December 8, 2005 do not apply to ghats (cremation grounds), which are situated at the bank of River Yamuna. 4. The court issued directions that there was no exception to any building, structure, places of worship of any community if it generates, creates and pollutes River Yamuna. However, keeping in view the fact that ghats are used for ritual poojas, therefore, ghats were not to be removed. They were to be properly beautified by the authorities so as to see that no pollution or any other activities which are undertaken pollutes River Yamuna. 5. Another important aspect, which I would like to state is that through Public Interest Litigation, the Court could also grant compensation of a million rupees to a worker who died during the cleaning operation as some electric pole fell on him when he was trying to ensure that no inmate had been left in any of the jhuggies cleared in and around River Yamuna. • June 1, 2006 – The Court appreciated the work of the Committee that: About 5,150 jhuggies including 1,200 jhuggies were removed from the eastern embankment of River Yamuna between Gita Colony and Old Railway Bridge in the first week of May 2006. 102 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 – The Court directed: We make it clear that no structure which comes on the riverbed or within 300 meters of the edge of the water of River Yamuna can be regularized even if it finds mention somewhere else and that would be playing not only with the River Yamuna but will make mockery of various orders passed by the Supreme Court, the plan made by the Central Government called Channelization of Ri Rivv er Yamuna and taxpayers’ money amounting to thousands of crores of rupees which have already been spent for this purpose without getting any desired result. – The Court further directed: Apart from that, such regularization will have a massive ecological and environmental imbalance and degradation due to large scale unplanned construction on both sides of River Yamuna and its embankments. We must not forget that River Yamuna is the lifeline for the citizens of Delhi and if we allow encroachment or unauthorized construction on the riverbed or its embankment, it will convert Yamuna into a huge sewage drain causing irreparable damage to the vast majority of the citizens of Delhi. Inconvenience to a few cannot be at the cost of inconvenience to the majority. The right of people of Delhi to have clean potable water from River Yamuna and healthy and friendly environment from its bed and embankment is a constitutional right. 2007] PRACTICAL REMEDIES AND PUBLIC INTEREST LITIGATION: YAMUNA RIVER CLEANING PROJECT 103 – Another aspect which is of importance is that when the directions issued by the Court were complied with, the polluters and the encroachers filed an application before the Court petitioning that unauthorized structures will be demolished voluntarily and pollution will be stopped. • September 7, 2006 – In the context of settlement of Tibetan refugees, the Court observed: that if River Yamuna has to be redeveloped, all government agencies have to work jointly and frame certain policies so that refugees can be relocated at some other place with more hygienic conditions and infrastructural facilities, otherwise, rampant unauthorized construction in the settlement with bare minimum facilities on the bank of River Yamuna would result in polluting River Yamuna. – Because of the practical remedies evolved by the ces of pollution to the Court, the following sour sources River Yamuna from the riverbed had been removed: – 62,000 jhuggies and unauthorized structures have been removed. – 106 unauthorized Dhobi Ghats have been removed. – Riverbed up to 300 meters have been cleared of the encroachments and structures. – The Commissioner of Police, Delhi and the officers under him have been personally made 104 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 responsible for any future encroachments in the riverbed. B. Unauthorized Colonies/Encroachment of Public Land • In another public interest litigation bearing cause title Kal ar Kalyyan Sanstha Social Welf elfar aree vv.. Union of India & Ors (2008), the High Court of Delhi has required the Government to submit before it an ef efffecti ectivve mechanism to deal with the problem of unauthorized construction, illegal construction, encroachment of public lands and illegal conversion of agricultural land for residential purposes. The government was unable to give any effective mechanism to deal with the problem. • Various directions issued by the Court to the Chief Executive Officers of the Municipal Corporation and Government failed to bring any result. In fact, the Additional Solicitor General of India Mr. Gopal Subramanium, appearing on behalf of the government in the matter, requested the Court to evolve a mechanism to provide practical remedies to deal with the problem before the court in the said public interest litigation. • In these circumstances, the Court appointed nine Advocate Court Commissioners to inspect various areas assigned to them and report the illegal and unauthorized conversion of agricultural lands in the residential areas, remove the encroachments from the public land and remove the unauthorized construction. • The Court Commissioners have been able to effectively monitor the authorities and have been able to: 2007] PRACTICAL REMEDIES AND PUBLIC INTEREST LITIGATION: YAMUNA RIVER CLEANING PROJECT 105 1. Get land worth Rs. 7,000 crores (1,550 million dollars) free from encroachments; 2. Get large stretch of about 1.5 km on the banks of Western Yamuna Canal as a bathtub for their cows and buffaloes; and 3. Book unauthorized and illegal construction and authorities have demolished them; • The Court by evolving the practical method has been able to provide effective remedies for the public interest litigation before it. C. Industrial P ollution Pollution • In 1996, the Supreme Court of India directed the closure/ shifting of 168 heavy and polluting industries from Delhi. • Later, in 1996, the Supreme Court issued directions for setting up of 15 common effluent treatment plants in various industrial clusters in the State of Delhi for treating the industrial discharge. • When the Supreme Court found that the construction of the common effluent treatment plants is not progressing at the desired pace, it required the Environment Prevention and Control Committee appointed by it to monitor the progress of the construction and submit its reports periodically to the Supreme Court. This measure adopted by the Court stepped up the face of construction and brought in desired results. • In a matter commonly known as In Re: Hindustan Times “Maily Yamuna,” the Supreme Court acting suo moto in 106 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 order to control the pollution caused by the effluent discharged by the industries had required the Government of Delhi to relocate about 40,000 industries from nonconfirming areas (residential areas) to confirming areas, i.e., industrial areas. The Government of Delhi has rehabilitated these industrial units in industrial areas. • Further, the Court has directed all the industries in Delhi to set up their individual effluent treatment plants before discharging their effluent into the sewage line which will take the discharge to the common effluent treatment plants. The measures taken by the Court have started showing the desired results. D. Sew ag Sewag agee Treatment Plants Capacity • The Supreme Court constituted a High-Powered Committee of Central Pollution Control Board which has drawn a complete program of all the stakeholders, i.e., DJB, MCD, Irrigation and Floods Control Department, Delhi State Industrial and Infrastructure Corporation, Government of India (various ministries), and government of other states have been involved in the program. In the presentation submitted to the Supreme Court on April 11, 2007, the various steps suggested are as under: – Desilting/refurbishing sewers; – Trapping sewage before it enters the drain; – Sewage Treatment Plants (STP) to function at optimal level; – New STP at appropriate locations; 2007] PRACTICAL REMEDIES AND PUBLIC INTEREST LITIGATION: YAMUNA RIVER CLEANING PROJECT 107 – Providing sewerage facilities in unauthorized colonies and other unsewered areas; – Channelization/Desilting of major drains; and – Prevention of dumping of solid waste in drains/ river. • A detailed scheme amounting to Rs. 1,850 crores for carrying out the above steps has been submitted to the Supreme Court. The Court Committee will monitor the implementation of this scheme. Remedies and Sanctions in En vir onmental Cases ∗ Envir vironmental Judge Kathie A. Stein∗∗ I. II. III. IV. V. CONTEXT FOR REMEDIES ........................................................... 108 PURPOSE OF REMEDIES ................................................................ 109 LEGAL BASIS OF REMEDIES ........................................................ 110 TYPES OF REMEDIES ..................................................................... 111 CONCLUSION REGARDING ENVIRONMENTAL REMEDIES ......................................................................................... 117 I. C ONTEXT FOR R EMEDIES Assumptions in Discussing R emedies Remedies • The legal and factual means to establish liability are present. • Courts have either statutory authority or inherent equitable power to fashion judgments. • Courts have coercive power to enforce judgments through monetary and penal sanctions. ∗ Delivered at the Asian Justices Forum on the Environment: “Sharing Experiences to Strengthen Environmental Adjudication in Asia” on July 5, 2007 at the Edsa Shangri-La Hotel, Mandaluyong City, Philippines. ∗∗ Judge Kathie A. Stein is an Environmental Appeals Judge with the United States Environmental Protection Agency’s (EPA) Environmental Appeals Board in Washington, D.C. The Board hears environmental cases under all the environmental statutes administered by EPA, including permit appeals and administrative enforcement cases. 2007] REMEDIES AND SANCTIONS IN ENVIRONMENTAL CASES 109 II. P URPOSE OF R EMEDIES • Redress those affected. • Environmental restoration. • Implement legislation. • Reinforce the rule of law. • Promote sustainable development. Prior to her appointment to the Board in 1996, she served as Director of EPA’s Air Enforcement Division within EPA’s Office of Enforcement and Compliance Assurance (OECA). She also headed OECA’s Resource Conservation and Recovery Act (RCRA) Enforcement Division and served as the Acting Regional Counsel for EPA’s Region III (Mid Atlantic Region). Before joining EPA in 1990, she served as Senior Counsel with the Environmental Enforcement Section of the US Department of Justice’s Environment and Natural Resources Division; Senior Attorney and Director, Environmental Information Exchange, at Environmental Defense (a non-governmental organization); Assistant Attorney General for the Maryland Attorney General’s office (handling environmental cases); and engaged in private law practice with two private law firms in San Francisco, California where she specialized in commercial and complex civil litigation. Judge Stein has been a frequent speaker at national conferences on environmental law, including for the American Law InstituteAmerican Bar Association. Judge Stein has participated in several international capacity building conferences on environmental and judicial issues, including conferences in Germany, Hungary, Israel, New Zealand, Thailand, and Nepal. She frequently meets with visiting judges from other countries. In addition, during 1995-1996, while on leave from EPA, she worked as a consultant to the World Wildlife Fund (WWF) in Kathmandu, Nepal. 110 THE PHILJA JUDICIAL JOURNAL III. L EGAL B ASIS OF [VOL. 9:28 R EMEDIES Sustainability Conce pts R ele emedies Concepts Rele elevvant to R Remedies • Sustainability: Confluence of concerns regarding economic growth, social progress and environmental protection. – Common questions for a Judge: 1. Should an enterprise be allowed to begin or continue operations? 2. What are the social/environmental costs of remedy choice? 3. How should available environmental capital be deployed? • Polluter Pays Principle • Prevention Principle During that year, she worked closely with Nepal’s newly formed Ministry of the Environment and conducted a workshop cosponsored by WWF and the Ministry of the Environment on environmental enforcement issues. Judge Stein has taken several training classes at the National Judicial College in Reno, Nevada. She also has traveled several times to Asia. She earned her Juris Doctorate (JD) degree, magna cum laude in 1979 from the Georgetown University Law Center, where she served as an editor of the Georgetown Law Journal. She received her Bachelor of Arts (BA) degree in 1974 from Oberlin College, where she majored in government. Judge Stein currently is an active member of the Bar of the District of Columbia and an inactive member of the California and Maryland Bars. 2007] REMEDIES AND SANCTIONS IN ENVIRONMENTAL CASES 111 IV IV.. T YPES OF R EMEDIES Type of Case ma emed mayy Af Afffect the R Remed emedyy • Constitutional violations; • Criminal enforcement; • Civil enforcement; • Public interest litigation; and • Private party actions. vir onmental La w Constitutional Violations and En Law Envir vironmental • Constitutional mandates are typically expressed generally and without remedial guidance. • Remedies for constitutional violations may require judicial discretion and creativity. Enforcement of Statutes and Administrative Re gulations • Actions may be brought by the departments of government which may involve criminal enforcement on environmental statutes. • In addition to the criminal enforcement provisions, many jurisdictions now provide for civil enforcement and appropriate civil remedies under the environmental statutes. • Common remedies include: – Financial and penal sanctions; – Injunctive relief; and – Natural resource damage awards. 112 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 Remedial Priorities • Courts tend to give priority to the following kinds of remedies in environmental cases: 1. Injunctive relief to halt the harmful activity; 2. Orders of restitution or remediation; 3. Damages to compensate for the harm suffered; 4. Sanctions to punish the wrongdoer and to deter future violations (at a minimum, recapture any economic benefit from illegal activity); and 5. Awards of litigation costs and fees. Restoration and R emediation Remediation • The preferred remedy in many cases is the restitution of the environment to the condition it was in before the harmful activity. m R emediation Phases of Long-T er Long-Ter erm Remediation • Phase I: Scientific study to assess extent of damage and options for addressing damage • Phase II: Identification and pricing of remedial options • Phase III: Remedy selections – Often multi-year projects • Phase IV: Monitoring for remedy efficacy • Phase V: Determination on completion 2007] REMEDIES AND SANCTIONS IN ENVIRONMENTAL CASES 113 Challeng es with Long-T er m R emedies Challenges Long-Ter erm Remedies • Who does the work? – Polluter? – Third Party? – Government? • Acquiring needed expertise – Use of special experts or “masters” • Declaring completion • Continuing jurisdiction Deter Deterrrent Sanctions • Aim of Deterrent Remedies = Compliance with the Law or Deter emedies • Considerations ffor Deterrrent R Remedies – Extent of the harm caused; – Measures taken to prevent, control, abate or mitigate harm; 114 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 – Foreseeability of the harm caused; – Control over the causes that gave rise to the offense; – Economic benefit of noncompliance; and – History of violations. • Basic Tools – Criminal sanctions  Incarceration  Monetary fines – Civil penalties • Financial Sanctions • Criminal Fines • Civil Penalties – Less commonly available under law than criminal fines. – Can be negotiated in some jurisdictions. Economic Benefit of Noncompliance – A Floor for Financial Sanctions? • Increasingly, legislators and courts alike recognize that financial sanctions, whether civil or criminal in nature, should disgorge the economic benefit of noncompliance (EBN): Whether a judge is assessing a criminal fine or a civil penalty, it is valuable for the judge to consider the deterrence value, and measure of consistency in approach, offered by assessing fines and penalties 2007] REMEDIES AND SANCTIONS IN ENVIRONMENTAL CASES 115 that, at a very minimum, disgorge the economic benefit that polluter realized by virtue of its noncompliance.1 Calculating Economic Benefit of Noncompliance • Avoided Costs • Deferred Costs – Value to violator of deferred compliance  Money that should have been spent on environmental improvements was presumptively invested elsewhere, earning a rate of return on an annual basis. – Formulas: Amount Def er Retur eturnn errred X Annual Rate of R Defer etur X Years of Violation = Deferred Cost EBN Def er Defer errr ed cost EBN + Total A Avv oided Costs = Total EBN Alter nati Alternati nativv e Sanctions • Community service; • Restoration and preventive action; • Costs, expenses and compensation; • Orders to publicize the offense and its environmental and other consequences; • Orders to carry out specified environmental projects; and • Orders to carry out an environmental audit. 1. UNEP Judges Handbook, 2005 at 57. 116 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 Supplemental En vir onmental Pr ojects Envir vironmental Projects • Environmentally beneficial project which a violator voluntarily agrees to perform; • In partial settlement of a violation; • Benefit: lower monetary penalty than would otherwise apply as a result of the violation. Supplemental En vir onmental Pr ojects R equir ements Envir vironmental Projects Requir equirements • Supplemental Environmental Projects must improve, protect or reduce risks to public health or the environment; • Must be related to the violation; • Must be voluntary; • Not started before the Agency enforced; • Enforcement Agency does not manage the Supplemental Environmental Projects; • Scope of project defined by a written agreement; • Must not do something that the Government is required to do. Supplemental En vir onment Pr ojects P enalty Mitig ation Envir vironment Projects Penalty Mitigation The amount of penalty mitigation is based on the cost of the SEP and whether or how effectively the SEP: • • • • Benefited the public or the environment; Was innovative; Considered input from affected community; Factored in environmental justice issues; 2007] REMEDIES AND SANCTIONS IN ENVIRONMENTAL CASES 117 • Reduced emissions to more than one media (e.g., air, land, water); • Implemented pollution prevention techniques and practices; • Shall not exceed 80 percent of the cost of the SEP; • Monetary penalty must still recover EBN. V. C ONCL USION R EGARDING ONCLUSION E NVIR ONMENT AL R EMEDIES NVIRONMENT ONMENTAL Punitive and compensatory dimensions; Tec hnicall echnicall hnicallyy comple complexx • Case Management Considerations: – Remedy issues can be complex. – Technical assistance/expertise commonly required. – Bifurcations may be advisable. – Court supervision of remedies is often necessary. – Continuing jurisdiction and docket management issues. equir ed. Acti equired. Activve judicial oovversight often rrequir • Techniques for Judicial Oversights of Remedy Implementation – Requiring parties to report back; – Regular monitoring by the Court; – Appointment of oversight commission; – Contempt proceedings. Framew ork ffor or Str engthening ramework Strengthening En vir onmental Adjudication Envir vironmental in the Philippines ∗ Justice Consuelo Ynares-Santiago ∗∗ I. INTRODUCTION ............................................................................... 119 II. BACKGROUND ON THE FRAMEWORK ...................................... 122 III. GUIMARAS OIL SPILL: AN EXAMPLE OF AN ENVIRONMENTAL CASE ............................................................... 125 IV. SPECIFIC ISSUES AROUND ENVIRONMENTAL CASES ........ 128 A. Standing to Sue B. Class Suits C. Accrual of Cause of Action D. Burden of Evidence on Causation and Damages E. Custody of Bulky and Perishable Evidence F. In Summary V. INSTITUTIONAL AND ADMINISTRATIVE ISSUES .................. 140 A. Green Benches VI. CAPACITY BUILDING FOR JUDGES ............................................ 143 VII.REMEDIES ......................................................................................... 144 A. Creative Penology ∗ Delivered at the Asian Justices Forum on the Environment, “Sharing Experiences to Strengthen Environmental Adjudication in Asia” on July 6, 2007 at the Edsa Shangri-La Hotel. ∗∗ Honorable Consuelo Ynares-Santiago was appointed Justice of the Supreme Court on April 6, 1999. The gracious and respected Justice Ynares-Santiago is the first female member of the Supreme Court who rose from the ranks, having begun her career as a Municipal Judge – proof that seniority, competence and fitness in the career service reign supreme in the Judiciary. 2007] FRAMEWORK FOR STRENGTHENING 119 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES B. Judicial Review C. Alternative Mechanism for Resolving Environmental Disputes VIII. SUMMARY AND CONCLUSION ............................................... 147 ANNEX: FRAMEWORK FOR IMPROVING ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES ............................................... 149 I. I NTR ODUCTION NTRODUCTION The Philippines is known for having among the toughest and most progressive environmental laws in the world. Our Constitution guarantees the right of the people to a healthy environment, which the Supreme Court has declared, in the leading actoran ,1 as legally demandable and case of Oposa vv.. FFactoran enforceable. A product of the University of the Philippines College of Law where she graduated in 1962, Justice Santiago started her career in the Judiciary in 1973 when she was appointed Municipal Judge of Cainta, Rizal, a position she held for 13 years. In November 1986, she was appointed Regional Trial Court Judge of Makati where she remained until her appointment to the Court of Appeals in 1990. Justice Santiago’s career has been marked with calm but courageous dispositions. She is the celebrated judge who, during the Marcos regime, acquitted former Education Secretary Alejandro Roces on charges of the violation of the Election Code when he boycotted the April 7, 1981 plebiscite. It was also Justice Santiago, then a Regional Trial Court Judge of Makati designated by the Supreme Court as Hearing Commissioner, who recommended the opening of Banco Filipino. 1. G.R. No. 101083, July 30, 1993, 224 SCRA 792. 120 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 In Oposa Oposa, the Supreme Court said that the Constitutional right to a “balanced and healthful ecology in accord with the rhythm and harmony of nature” was so fundamental “for it concerns nothing less than self-preservation and self-perpetration.” The Court added that such right “may even predate all governments and constitutions” and is “assumed to exist from the inception of humankind.” As one legal scholar has sharply observed, Oposa is groundbreaking because it recognized the environmental right as a specific, self-executory, and actionable right without need for further legislative action before it can be A native of Binangonan, Rizal, where she was born on October 5, 1939, Justice Santiago received in 1994 the Pambayang Gawad Palosebo , the highest municipal award given to outstanding citizens of Binangonan, Rizal who have excelled in their professions and are role models for the youth. Justice Santiago has done much to improve the image of women in the field of law, business and politics. She was a speaker at the Regional Workshop on Women in Business and Politics in Southeast Asia which was held in Singapore in December 1990. In October 1999, she was invited by the International Women’s Forum to attend the 15 th Annual Global Conference in Washington, D.C. and to join a panel with the United States Supreme Court Justice Ruth Bader Ginsberg to speak on the topic “The Courts and Women’s Rights: Trendsetter or Arbiter?” She was also a guest speaker at the International Women’s Day Celebration of the Metro Manila Council of Women Balikatan Movement in March 2000. She has likewise participated in conventions and conferences such as the Appellate Judges Seminar in Portland, Oregon, USA (August 1996), Program of Instruction for Lawyers, Harvard Law School (June 1994) and International Convention for Women Judges in Wellington, New Zealand (September 1993). 2007] FRAMEWORK FOR STRENGTHENING 121 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES exercised.2 Yet mere recognition of the right is not enough. The government has to protect the exercise of that right. The role of the Court is to ensure that laws, actions of government agents as well as actions of fellow citizens, do not trample on that right. However, the Court will only have this opportunity when appropriate cases are brought before it. Many concerned groups have voiced their suggestions to improve access to environmental justice. Over the years, much discussion has been devoted to this topic, notably, the Judges’ Forum on Environmental Protection held in 2003 and hosted by the Philippine Judicial Academy (PHILJA).3 PHILJA and its partners have taken great strides to advance the cause of the environment within the judiciary, especially through judicial trainings. PHILJA has also been instrumental in drawing suggestions from stakeholder groups on how to improve the environmental adjudication and access to environmental justice. The framework I am sharing today seeks to synthesize the discussions and present options for addressing the most pressing issues. The preparation of the framework was done in partnership with the PHILJA and supported by the United States Agency for International Development (USAID) through the Asian Environmental Compliance and Enforcement Network (AECEN), and by the United Nations Development Programme (UNDP) through a grant provided to the Haribon Foundation. 2. Dante B. Gatmaytan, The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory, 15 Georgetown Int’l Environmental Law Review 457, April 1, 2003. 3. Proceedings of the Forum was published in the PHILJA Judicial Journal, Vol. 6, Issue No. 20. 122 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 In developing this framework, our overall goal is to increase the relevance of the courts by making the judiciary better prepared in handling environmental cases. Indeed, the objectives of a framework for strengthening environmental adjudication in the Philippines are improved efficiency, integration of jurisdiction (where allowed by law), and greater access to justice especially by the poor. II. B ACK GR OUND CKGR GROUND ON THE F RAMEW ORK RAMEWORK To situate better this framework for strengthening environmental adjudication in the Philippines, some background on our environmental and judicial systems and how they interact with each other is probably helpful. The Philippines is a republican state with a presidential form of government. We have three co-equal branches of government – an executive branch headed by the President, the legislature which is bicameral with a Senate and a House of Representatives, and an independent judiciary. The powers of these branches of government are well-defined in the 1987 Philippine Constitution. The legislature enacts laws, the executive branch implements them, and the judiciary adjudicates when there are controversies involving the other branches or where the rights of citizens are affected. Aside from laws passed by the legislature, the judiciary also interprets the Constitution and has the power of judicial review over acts of the different branches that raise questions of constitutional validity. The Supreme Court and the lower courts have these powers apportioned to them by the Constitution and by the legislative act. Finally, the Supreme Court as the highest court of the land has also been explicitly given the constitutional power to administer and manage the courts and thus has authority 2007] FRAMEWORK FOR STRENGTHENING 123 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES to organize the courts, issue rules and regulations, and perform other acts to ensure effective and efficient access to justice. The current adjudication system follows this delineation of powers between the three branches of government. While the 1987 Constitution has specific provisions that are relevant to environmental cases, for example, the right of citizens to a “balanced and healthful ecology” as cited above, the legal rights, obligations, and processes that deal with environmental issues are all embodied in legislative acts, such as: 1. Executive Order No. 192 which created the Department of Environment and Natural Resources (DENR) (issued by then President Corazon C. Aquino when she was still exercising legislative powers under the 1986 Freedom Constitution); 2. Presidential Decree No. 1586 requiring environmental impact assessment for environmentally critical projects or those which are located in environmentally critical areas (issued by former President Ferdinand E. Marcos when he was still exercising legislative powers under the 1973 Constitution); 3. The Forestry Code and the Revised Fisheries Code; 4. The National Integrated Protected Areas System Law; 5. The Clean Air Act; and 6. The Clean Water Act. Under the executive branch, it is the DENR headed by the Secretary appointed by the President that is the lead agency responsible for implementing all these laws. For this purpose, the secretary has enforcement powers, quasi-legislative (the power to 124 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 issue departmental rules and regulations) and quasi-judicial powers that are specifically granted under special laws. Environmental cases are special in our legal system because of the split jurisdiction created by legislation. Courts have jurisdiction in cases of criminal violations of environmental laws, but questions of rights or privilege to resource use are usually decided by executive agencies. In pollution and mining cases for example, courts have appellate jurisdiction only. DENR, through its two quasi-judicial bodies namely the Pollution Adjudication Board (PAB)4 and the Mines Adjudication Board (MAB),5 has exclusive original jurisdiction over these types of environmental cases. Records from the PAB show that few pollution cases get elevated to the courts for review.6 Finally, in adjudicating cases over which the executive branch has original jurisdiction, the exhaustion of administrative remedies is required by the courts. 4. Executive Order No. 192, Sec.19. 5. Philippine Mining Act of 1995, Republic Act No. 7942, Sec. 79. 6. Statistics show that in 2005, there were 3,873 Notices of Violation issued by the Regional Offices broken down as follows: 2,109 – violation of PD No. 1586 (Environmental Impact Statement System); 1,198 – violation of RA No. 8749 (Philippine Clean Air Act of 1999); 422 – violation of RA No. 9275 (Philippine Clean Water Act of 2004); 144 – violation of RA No. 6969 (Toxic Substances and Hazardous and Nuclear Wastes Act of 1990). As of 2005, of the cases, 744 were filed or docketed, and 541 have remained pending. PAB records indicate that as of December 2004, 10 cases are with the Court of Appeals, while there are four with the Supreme Court. The Court of Appeals had resolved nine, while the Supreme Court, four. 2007] FRAMEWORK FOR STRENGTHENING 125 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES It should be noted that other agencies, like the Department of Agriculture (in fisheries), the Department of Agrarian Reform (conversion of agricultural lands), and the National Commission of Indigenous Peoples also have powers over some issues that are relevant to environmental adjudication. Moreover, under the Local Government Code, local government units such as municipalities, cities and provinces have limited authority to legislate and implement environmental laws within their respective territorial jurisdictions. In most cases, environmental cases in the Philippines are suits seeking (mandamus) or stopping (restraining orders) executive agency actions, such as following public participation and other due process procedures or the issuances of license, permits, clearances, etc. Most of the time, the DENR is the defendant in these cases but the other agencies mentioned above, including local governments, can also be sued. In most of these cases, resort can be immediately to the Court of Appeals which can hear them if administrative remedies have been exhausted. Pollution cases are usually filed by government agencies, private citizens or nongovernmental organizations against businesses and companies. Typically, those cases would involve having the business or company causing pollution to cease operations or in some cases, as described in the next section, plaintiffs seek payment of damages suffered as a result of environmental pollution. III. G UIMARAS O IL S PILL: A N E XAMPLE OF AN E NVIR ONMENT AL C ASE NVIRONMENT ONMENTAL Environmental cases are conflicts and violations that arise out of the implementation or enforcement of laws dealing with the use of natural resources and the impact of human activities on public health and the ecosystem. These issues are often governed by 126 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 special laws, so that any matter that arises out of these laws would generally be considered an environmental case. But what makes these cases different from ordinary cases is not the name of the law but the nature of conflicts. To illustrate, let us consider a case of an oil spill, similar to what happened recently in Guimaras: 1. The oil spill caused fish kills. Because we adhere to the Regalian Doctrine, it is presumed that all natural resources are state-owned (including forests, fisheries, waters)7 and the use of these resources is considered a privilege, not a right, and not ownership. When fisherfolk have no fish to catch because of the oil spill, they cannot sue for the loss of the fish killed by oil pollution, because they do not own what was lost and they are merely grantees of a privilege to fish; 2. The fisherfolk can probably sue for the loss of livelihood, but each fisherman’s economic loss is too small compared to the cost of filing a suit to claim the individual losses; 3. The oil spill has a direct impact on the livelihood of fishermen or resort owners, but the pollution also kills corals, mangroves and countless marine organisms. Eventually we all suffer from the loss due to a decrease in fish catch or lost economic opportunities. The causal connection to our losses is tenuous, putting doubts to our ability to sue for our losses; 7. P HILIPPINE C ONSTITUTION , Ar t. XII, Sec. 2: All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated x x x. 2007] FRAMEWORK FOR STRENGTHENING 127 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES 4. The loss of biodiversity as a result of an oil spill has no price tag, because we do not know its real value. The court will not be able to award compensation for the true value of the loss; and 5. Issues in environmental cases can be very technical – expensive tests and experts are required to establish the facts and causation. Some facts (e.g., nature and extent of harm) take a long time to manifest or discover. If the fisherfolk decided to seek justice in the Philippine courts, they would have to file charges in an appropriate lower court, most probably given the damages involved in the Regional Trial Court of Guimaras. A class suit would be an option but as discussed below, there would be considerable obstacles. The filing fees would have been prohibitive if each fisherperson had to make their own claim. Assuming that they are able to overcome the initial constraints, the claimants would then have to prove damages, in this case not only the actual physical changes caused by the oil spill but the loss of income and other economic impacts sustained as a result of the changes. Most likely, months or even years would pass before the first evidentiary hearings would be held, making it likely for the evidence to be lost or weakened. With appeals, litigation would last for years. What all these mean is the need to look at how we can make changes to our current system so that in fact the scenario I sketched above, which is typical of almost all environmental cases, does not happen in environmental cases. It is worth noting that this particular case of the Guimaras oil spill, the fishermen chose to file a claim with the International Oil Pollution Compensation Fund rather than file a suit in Philippine courts. Based on the new reports, around 11,000 fishermen have been compensated for a total of P110 million and more claims are being processed. 128 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 Damage payments were made less than a year from the incident. In contrast, this would have taken years had it been litigated in our court. Let me go now to the legal and administrative issues that might have to be addressed to strengthen our system of environmental adjudication. IV IV.. S PECIFIC I SSUES A ROUND E NVIR ONMENT AL C ASES NVIRONMENT ONMENTAL We will now look at specific issues around environmental cases and understand why these cases need to be treated differently from ordinary civil and criminal cases. I will first examine some options on rules of procedure that might address the special nature of environmental cases. We will also discuss the need for administrative and institutional changes (such as establishing special courts) that will complement the procedural changes. Finally, we will look at issues around remedies, including the issue of appropriate penalties, judicial review, and alternative modes of addressing environmental disputes. Several suggestions have been made in order to address the unique challenges faced by parties in an environmental case. In various consultative forums discussing environmental adjudication, the issues of standing to sue and class suits are always raised. Environmental law advocates often suggest that the Court relax the rules on standing to sue and class actions in order to make it easier for injured parties to file a case. Other suggestions include amending the rules on accrual of causes of action and burden of evidence to allow plaintiffs to overcome the technical barriers to filing environmental cases. Still other suggestions deal with improving court rules in the custody and appreciation of bulky and perishable evidence. Let us clarify these issues: 2007] FRAMEWORK FOR STRENGTHENING 129 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES A. SStanding tanding to Sue The case of Oposa is famously quoted for its pronouncement on intergenerational responsibility. The Court said: Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. This statement in Oposa is obiter dictum, since the issue of standing of plaintiffs was not raised. Yet the Court deemed it important to declare that it is not only the people of this generation that enjoy the right guaranteed by the Constitution, but also the Filipino people of the future. Standing to sue has always been considered a mere procedural matter that can be set aside. The pronouncement in Oposa has es vv.. Land been reiterated in the recent case of Henar Henares ranc hising R ranchising Ree gulator gulatoryy Boar Boardd Transpor tation and FFranc 8 (L TFRB), where we recognized plaintiffs’ (who were ordinary (LTFRB) citizens and including minors) right to sue the government to compel the use of compressed natural gas by public utility vehicles. We said: This petition focuses on one fundamental legal right of petitioners, their right to clean air. Moreover, as held previously, a party’s standing before this Court is a procedural technicality which may, in the exercise of the Court’s discretion, be set aside in view of the importance of the issue raised. We brush aside this issue of technicality under the principle of the 8. G.R. No. 158290, October 23, 2006, 505 SCRA 104. 130 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 transcendental importance to the public, especially so if these cases demand that they be settled promptly. However, having standing to sue does not automatically mean that the petitioners have a cause of action. The question of standing involves who the proper parties are to the case.9 On the other hand, the issue on cause of action requires not only that the plaintiff is the proper party (has a right that has been or may be violated) but also that the defendant has a correlative duty to protect or respect such right. Our Rules of Court define a cause of action as “the act or omission that which a party violates a right of another.”10 In Oposa Oposa, and in the case of Cr Cruz, Secretar etaryy of uz, et al. vv.. Secr etar 11 esour ces, et al Envir vironment Resour esources, al., where the onment and Natural R En vir constitutionality of the Indigenous Peoples Rights Act (IPRA) was at issue, we declared that the citizen-plaintiffs had standing because they possessed the right that could be violated, and the government had the correlative duty to protect such right. On es, while the Court recognized that the the other hand, in Henar Henares plaintiffs had standing, it also found that there was no provision in the Clean Air Act that required the government agency to compel public utility vehicles to use Compressed Natural Gas 9. RULES OF COURT, Rule 3, Sec. 2 provides: A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. 10. Id. Rule 2, Sec. 2. 11. G.R. No. 135385, December 6, 2000, 347 SCRA 128. 2007] FRAMEWORK FOR STRENGTHENING 131 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES (CNG). The Court ruled that the petitioners had no cause of action. When public interest law groups ask that the rules on standing should be relaxed, what they are really asking is to be allowed to sue on behalf of the proper (injured) parties. Is present jurisprudence relaxed enough to allow public interest groups to stand as plaintiffs? Our jurisprudence is rich in cases where ordinary citizens file suits as taxpayers. In Kilosba Kilosbayyan vv.. 12 Morato we said that the Court has in the past accorded standing to taxpayers and concerned citizens in cases involving “paramount public interest.” Taxpayers, voters, concerned citizens and legislators have indeed been allowed to sue but then only in cases involving constitutional issues and under certain conditions. These conditions are well-established under our case law.13 12. G.R. No. 118910, November 16, 1995, 250 SCRA 130. 13. In Kilosbayan, we enumerated some of these instances: Taxpayers are allowed to sue, for example, where there is a claim of illegal disbursement of public funds. (Pascual v. Secretary of Public Works, 110 Phil. 331 [1960]; Sanidad v. Comelec, 73 SCRA 333 [1976]; Bugnay Const. & Dev. v. Laron, 176 SCRA 240 [1989]; City Council of Cebu v. Cuizon, 47 SCRA 325 [1972] or where tax measure is assailed as unconstitutional. (VAT Cases Tolentino v. Secretary of Finance, 235 SCRA 630 [1994]) Voters are allowed to question the validity of election laws because of their obvious interest in the validity of such laws. (Gonzales v. Comelec, 21 SCRA 774 [1967]) Concerned citizens can bring suits if the constitutional question they raise is of “transcendental importance” which must be settled early. (Emergency Powers Cases [Araneta v. Dinglasan], 84 Phil. 368 [1949]; Iloilo Palay and Corn Planters Ass’n v. Feliciano, 121 Phil. 358 [1965]; Philconsa v. Gimenez, 122 Phil. 894 [1965]; CLU v. Executive Secretary, 194 SCRA 317 [1991]) Legislators 132 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 B. C lass Suits Class A class suit is one where “the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest.”14 The main advantage of a class suit is that it brings together small claims that are impractical or unlikely to be litigated separately. By aggregating small claims, class actions efficiently and effectively spread the cost of litigation among many claimants. Because there are numerous members of a class, each member contributes only a small amount that adds up to cover litigation costs and pay for good lawyers. A fisherman who loses Three Thousand Pesos (P3,000) because he is unable to fish for a month due to an oil spill is not likely to litigate a case against the polluting ship owner, where the cost of proving pollution and causation can run into millions. But if thousands of fishermen who are similarly affected by the spill can come together in one case, then their collective claims can be substantial. The large amount of the aggregate claim can attract good legal talents who are willing are allowed to sue to question the validity of any official action which they claim infringes their prerogatives qua legislators. (Philconsa v. Enriquez, 235 SCRA 506 [1994]; Guingona v. PCGG, 207 SCRA 659 [1992]; Gonzales v. Macaraig, 191 SCRA 452 [1990]; Tolentino v. Comelec, 41 SCRA 702 [1971]; Tatad v. Garcia, G.R. No. 114222, April 16, 1995 [Mendoza, J., concurring]). 14. RULES OF COURT, Rule 3, Sec. 12. 2007] FRAMEWORK FOR STRENGTHENING 133 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES to work on contingency basis. Because of the large number of people involved, class suits also strengthen the negotiating power of small claimants against big defendants. Just because large numbers of people are affected by an environmental violation does not automatically mean that the court has to certify the case as a class suit.15 The specific requirements must be met, typically: 1. Numerosity – the class must be so numerous that joinder of all parties is impracticable; 2. Commonality – the questions of fact or law are common to the class; 15. In Mathay v. Consolidated Bank (G.R. No. L-23136, August 26, 1974, 58 SCRA 559) the Supreme Court said: The necessary elements for the maintenance of a class suit are accordingly: (1) that the subject matter of the controversy be one of common or general interest to many persons, and (2) that such persons be so numerous as to make it impracticable to bring them all to the court. An action does not become a class suit merely because it is designated as such in the pleadings. Whether the suit is or is not a class suit depends upon the attending facts, and the complaint, or other pleading initiating the class action should allege the existence of the necessary facts, to wit, the existence of a subject matter of common interest, and the existence of a class and the number of persons in the alleged class, in order that the court might be enabled to determine whether the members of the class are so numerous as to make it impracticable to bring them all before the court, to contrast the number appearing on the record with the number in the class and to determine whether claimants on record adequately represent the class and the subject matter of general or common interest. 134 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 3. Typicality – the class representatives who file the suit must be typical of those of the class members; and 4. Adequacy – the class representatives must be able to represent the class adequately. It is not hard to imagine that environmental cases would involve numerous plaintiffs. The question is if all of them have common interests in the subject. Class suits have not been common in our jurisdiction perhaps because of the strictness in the interpretation of the Rule. In a 1962 case,16 28 residents, claiming to represent some 30,000 others sued Dumaguete City 16. Valencia v. City of Dumaguete, G.R. No. L-17799, August 31, 1962, 5 SCRA 1096: The case now before us is analogous to the two mentioned above in the sense that each one of the herein plaintiffs and each of the more than 30,000 other parties in interest referred to in the amended complaint, has an interest exclusively in the amounts allegedly collected from each of them by the defendants. Under the facts alleged in the amended complaint it is clear that no one plaintiff has any right to or any share in the amounts individually claimed by the others, each of them being entitled, if at all, only to the return of what he had personally paid. Moreover, assuming that the case is allowed to proceed as filed, and that judgment is rendered sentencing the defendants to pay the amounts claimed in the amended complaint, it is obvious that the plaintiffs – whether individually or as a group – would not be entitled to appropriate for themselves the amounts so adjudged. And yet, while the amended complaints avers that numerous other parties have an interest in the issue, it does not allege and specify the amounts claimed by, and payable to each of them nor to each of the plaintiffs named in the pleading. 2007] FRAMEWORK FOR STRENGTHENING 135 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES for a refund of a surcharge collected from movie tickets, we ruled that plaintiffs had interest only in their own individual refunds and not in the amounts due to the others, and they would not be entitled to appropriate for themselves the refunds due to the others. week vv.. IA C 17 and in the later case of MVRS In News Newsw IAC lication vv.. Islamic Da’w Publication Da’wah Pub ah Council,18 we ruled against class suits involving libel because each of the plaintiffs has a separate and distinct reputation in the community. They do not have a common or general interest in the subject matter of controversy. It appears that our strict interpretation of class suits could prevent the filing of environmental class actions to claim losses or damages. Perhaps there is room to reconsider. However, the right case has not come to the attention of the Court. It should be noted that taxpayers and citizen suits are class suits, because plaintiffs claim to represent the rest of the citizens or taxpayers not named in the case. The difference with damage class suits is that, the relief sought in taxpayers suits (typically, mandamus or prohibition) automatically benefits all and equally, without having the problem of apportioning any proceeds. Otherwise, we face the problem of having to decide what each plaintiff is entitled to, and requiring each to prove her claim. C. Accrual of Cause of Action The interval between violation or injurious act and the manifestation of injury can take years. This is of critical concern because actions must be instituted within limited time periods. The statute of limitation for tort is four years from occurrence 17. G.R. No. L-63559, May 30, 1986, 142 SCRA 171. 18. G.R. No. 135306, January 28, 2003, 396 SCRA 210. 136 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 of the wrongful act.19 The primary and secondary effects of environmentally damaging acts can take longer than this period. Environmental advocates propose to change the reckoning of prescriptive period from the date of discovery. The Discovery Rule is already applied under certain laws such as in sales20 where the prescriptive period for action to annul sale tainted by mistake or fraud is from discovery of mistake or fraud; recovery of nuclear damage.21 Prescriptive period for action to recover compensation for nuclear damage is 10 years from date of nuclear incident and three years from the time plaintiff had knowledge or should have knowledge of injury or damage; in consumer protection,22 prescriptive period for cases of hidden defects in manufactured product is two years from discovery of hidden defect; and hor nande jurisprudence.23 In Cristobal vv.. Melc Melchor hor,24 Fer ernande nandezz vv.. 25 26 vino vv.. Alunan Grolier International national, Aldo Aldovino Alunan, the Supreme Gr olier Inter national Court has held that when considerations of substantial justice 19. CIVIL CODE, Art. 1146 (2). 20. Id. Art. 1391. 21. Atomic Energy Regulatory and Liability Act, Republic Act No. 5207. 22. Consumer Protection Act of the Philippines, Republic Act No. 7394. 23. Sermonia v. Court of Appeals, G.R. No. 109454, June 14, 1994, 233 SCRA 155; Lim, Sr. v. Court of Appeals, G.R. No. 48134-37, October 18, 1990, 190 SCRA 616; Yap v. Court of Appeals, G.R. No. L-73611, October 27, 1986, 145 SCRA 223. 24. G.R. No. L-43203, July 29, 1977, 78 SCRA 175. 25. G.R. No. L-55312, December 29, 1987, 156 SCRA 830. 26. G.R. No. 102232, March 9, 1994, 230 SCRA 825. 2007] FRAMEWORK FOR STRENGTHENING 137 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES and equity come in, it is better to resolve the issue on the basis of merits of the case, instead of applying the rule on prescription. Application of Article 1150 may be resorted to. Said Article provides that: the time of prescription for all kinds of action, when there is no special provision which ordains otherwise, shall be counted from the day they may be brought. This could be interpreted to mean the time when the impact of the injurious act became manifest or was discovered. D. Bur den of Evidence on Causation and Damag es Burden Damages The burden of proving facts and causation can be heavy and costly. In several instances, the law creates presumptions that shift the burden of presenting evidence. In Section 88 of the Philippine Fisheries Code, the law creates a prima facie case of fishing with the use of explosives in case of possession of explosives which was upheld in People v. Vergara,27 (holding that illegal fishing paraphernalia and fish samples showing signs of blasting is sufficient to prove blast fishing); Section 3 (j), Rule 131, Rules of Court (presumption of ownership of a thing in a person’s possession is valid but may be rebutted). However, the Court cannot shift the burden of evidence through the Rules. There is a danger that it will fly in the face of the Constitutional right to be presumed innocent. Difficulties in proving causation and liability can be addressed through adopting strict liability rules, which we already have in transportation and product liability. But this is a matter that should be addressed to the legislature, and not the judiciary. 27. G.R. No. 110286, April 2, 1997, 270 SCRA 624. 138 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 E. Custod erishab le Evidence Custodyy of Bulky and P Perishab erishable Public interest law groups point to practical problems in dealing with evidence in court. In many cases, the evidence (logs, fish, wildlife) can be bulky, highly perishable, and dangerous or needs care. The general rules on the handling and custody of evidence, while the case is pending, are inadequate to address the problems encountered in the field. In illegal fishing cases, as part of acquiring jurisdiction, trial courts order the surrender of materials and paraphernalia involved in the case – this can include fishing nets that weigh several tons and boats. The court is faced with the problem of storage and paying for maintenance costs, including wharfage fees. The court is also faced with the challenge of storing the fish allegedly caught illegally. It is the same situation with logging – storage is a problem, and the materials deteriorate quickly if not cared for properly. At the end of trial (which can take years) the materials become useless – either to the accused, when acquitted, or to the government, in case of forfeiture. Practitioners have suggested to the Court the promulgation of rules to allow the sale or disposition of bulky or perishable evidence to preserve their value. The proceeds of the sale are then deposited with the court to await the outcome of the case. Photographs, samples, and inventory records can then be used for presentation in court in place of the actual bulky or perishable objects. In earlier discussions with members of the Court and the court administrator, the Court has expressed willingness to study this proposal and issue appropriate guidelines for trial courts. Perhaps it is time to finalize and issue the rule. 2007] FRAMEWORK FOR STRENGTHENING 139 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES F. In Summar Summaryy On the issue of standing, the courts have been very open and have brushed aside the technicality of standing in cases of transcendental value – could allow taxpayers, citizens, public interest groups, and even the unborn, as plaintiffs. However, plaintiffs must show cause of action – especially demonstrating the duty of the defendant to act or not to act so as to protect the right of the people to a clean environment. But when public interest groups seek participation in prosecution of environmental cases, they need to coordinate with the Department of Justice (DOJ) because it is not for the courts to decide. On the issue of class suits, citizens and taxpayers have always had the opportunity to bring suits in the name of the general public on issues of transcendental importance. However, in cases where numerous plaintiffs seek compensation for damages, there may be room to re-examine our decisions, given that class suits may be the only way to address the imbalance in incentives and power that inhibits small claimants to seek redress on issues that are too technical or too costly to litigate. But there has not been an opportunity [the right case] to review such decisions. On accrual of cause of action and burden of presenting evidence, these are matters that must be addressed to the legislature so that the rules on presumptions and prescriptions can be created and fashioned through law. Our procedural rules can then be amended to conform to these statutory rules. The procedural recommendations on the handling of bulky or perishable evidence deserve immediate favorable attention, as these are matters that substantially increase the efficiency of handling cases, yet do not impinge upon the substantive rights of the parties. It is to the interest of the parties that the value of the 140 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 goods under litigation is preserved. The wasteful deterioration of valuable resources under litigation is unacceptable when it can be put to good use. V. I NSTITUTION AL NSTITUTIONAL AND A DMINISTRA TIVE I SSUES DMINISTRATIVE Concerned about the growing number of cases of violation of forestry laws, the Supreme Court, in 1993, issued an administrative order28 designating certain trial courts in the country to hear all cases of forestry law violations within the identified priority areas. The courts were located in areas where violations were rampant. The Court has been regularly monitoring the progress of these cases and recording data through the Court Administration Management Information System (CAMIS) database. The case monitoring data shows that the areas with the highest number of cases matched the areas where there is still significant forest resources left (such as Palawan and Davao del Norte) or where operators of sawmills and other wood processing facilities are based (such as Nueva Ecija and Cebu). In an earlier inventory, data from year 2000 to 2004 shows that 1,687 cases were filed in courts. Of this number, 155 were dismissed, 148 archived and 132 resulted in conviction, while 1,233 are still pending. In November 2006, there were a total number of 901 pending cases nationwide. The current reporting system of the trial courts does not segregate environmental cases except for forestry cases. With assistance from the USAID and the UNDP, the Supreme Court is expanding the inventory and monitoring of environmental cases to include all types of environmental cases. It is expected that, as with forestry cases, the inventory will show that cases are numerous 28. Supreme Court Administrative Order No. 15-13-93. 2007] FRAMEWORK FOR STRENGTHENING 141 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES in areas where the resources are most abundant (and where conflicts and violations are most likely). Next to forestry, based on discussions with public interest law groups, the cases most often filed are violation of fisheries laws. Pollution cases are plenty but these are brought before the DENR and not the courts. If the number of incidents/cases was the only consideration, more courts can be designated in areas where fisheries cases are expected to be filed, corresponding to the large fishing grounds in the country (e.g., Cebu, Palawan). If there are few cases, then why do we need specially-designated trained and accessible courts? Resolving environmental cases require knowledge and understanding of science; for instance, establishing causation needs the application of scientific principles; also, evidentiary matters touch on science and technology. In earlier discussions, some trial court judges admitted that they have been lenient in imposing penalties for environmental violations thinking that there were no people harmed in the illegal activities and the violators were only trying to make a living. After the training, judges realized the real value of the resources lost and vowed not to take these violations lightly. In Mead vv.. Ar Arggel ,29 it was held that the existence of pollution, as defined by law, requires specialized knowledge of technical and scientific matters, which is not normally within the competence of prosecutors or those sitting in the courts of justice. It was humbly admitted that even justices or judges do not hold expertise with respect to determining technical and scientific matters concerning pollution. 29. G.R. No. L-41958, July 20, 1982, 115 SCRA 256. 142 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 A. Green Benches In establishing or strengthening green benches, the objectives should be clear. These are: improved efficiency, integration of jurisdiction (where allowed by law), and greater access to justice especially by the poor. In the Philippines, we already have green benches although their jurisdiction is limited to forestry cases. As to other environmental cases, the following four options (not exclusive but the options can be combined with each other) could be explored: 1. Strengthen the current system of specially-designated forestry courts by providing judges assigned to these courts additional training, technical resources that increase capacity, etc. 2. Expand jurisdiction of current designated courts to cover over all environmental cases (except those under PAB/ MAB) and located in accessible areas (where cases are expected to be numerous); 3. Establish special courts that are strictly for environmental cases; and 4. Establish green benches that focus not only on the judges but the support system needed for environmental cases, with particular attention given to developing technical expertise not only among judges but other officers of the court. Pending results of current ongoing inventory, we can see if there are enough cases to justify exclusive environmental courts. We have specially-designated courts (e.g., family courts) that hear certain types of cases, but these are additional tasks. These courts still hear regular cases in addition to all the special cases channeled 2007] FRAMEWORK FOR STRENGTHENING 143 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES to it. In any case, environment cases can arise in any part of the country, perhaps certain issues more than the others, depending on the type of activities in the area (for example, in big cities, you will expect more pollution cases than forestry). The designation of courts in identified priority areas is only a temporary measure while the rest of the judiciary undergoes orientation and training. The goal is for all courts to be able to handle environmental cases. Regardless of whether or not we ultimately decide to establish exclusive or special courts, what we need is to reorient the thinking of judges when it comes to handling environmental cases. We have started by identifying the courts where these cases are most likely to occur and initiated the training of judges in these courts. Through PHILJA, we are moving towards training more judges, and perhaps eventually making environmental law part of the general training curriculum of judges. VI. C AP ACITY B UILDING APA FOR J UDGES PHILJA conducted several trainings on environmental law that benefited some 400 judges. PHILJA has also prepared training modules on environmental law, including materials on specific topics (climate change, wildlife). However, these are all basic training. Data from PHILJA’s training partner, Haribon Foundation, shows that there were instances where the same judge had attended more than two or more basic environmental law trainings. PHILJA should track who has been trained and see to it they get advanced training depending on the particular need of the jurisdictional area for knowledge about the most prevalent cases filed in the area. 144 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 VII. R EMEDIES To deal with remedies, the issue of penalties, judicial review of executive agency actions, and alternative modes of dispute resolution are important areas where careful study is needed. A. Cr eati enolog Creati eativve P Penolog enologyy Penalties should not only be imposed as punishment and to deter further repetition of the offense, but also to educate the violator on why the action is considered wrong or illegal. Courts can help reform environmental offenders by imposing creative conditions that educate the offender. In 2003, the Supreme Court issued Administrative Circular 17-2003 that required the planting of trees as condition for probation. The imposition of conditions for community service can include other activities that can expose the offender to the value of their natural resources that he has destroyed. Trial courts in Cebu, for instance, make it a condition in fishery crimes, that the violator serves as guardian of the marine sanctuary. In such instances, the violator gets to learn about the value of the marine ecosystem to his livelihood. B. Judicial R Reeview The appellate courts also play an important role in the review of cases. There are two types of reviews: appeals from lower court decisions and judicial review of cases heard by quasi-judicial bodies. For appeals, the appellate courts should be equipped with some of the technical skills to appreciate the issues in environmental cases. For judicial review, the appellate courts should also develop sensitivity to executive decisions and establish a clear standard for review. 2007] FRAMEWORK FOR STRENGTHENING 145 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES The Supreme Court has been consistent in upholding the powers of environmental agencies to protect the environment. In or est Pr oducts Cor the case of Sta. Ines Melale FFor orest Products Corpp. vv.. 30 Ex ecuti etar Executi ecutivve Secr Secretar etaryy, we said: Findings of fact of quasi-judicial bodies which have acquired expertise because their jurisdiction is confined to specific matters, are accorded not only with respect but even finality if they are supported by substantial evidence, even if such evidence might not be overwhelming or preponderant. Courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulating of activities coming under the special technical knowledge and training of such agencies. Indeed, issues involving basically technical matters deserve to be disentangled from undue interference from courts. Yet, on certain occasions, the Court is tempted to make the lic public technical determination for itself. Thus, in the case of Repub 31 v. City of Da Davvao, the Court went into an extended analysis on what activities were or were not required to undergo an environmental impact assessment, and proceeded to declare that the proposed Artica Sports Dome was not covered by the requirement – a determination that should have been left to the sound discretion and expertise of the environmental agency. The Constitution has greatly strengthened the power of judicial review. The second paragraph of Section 1, Article VIII of the Constitution states that: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally 30. G.R. No. 80849, December 2, 1998, 299 SCRA 491. 31. G.R. No. 148622, September 12, 2002, 388 SCRA 691. 146 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. But such power does not give the court the license to supplant its own decision on what is best left to the expertise of the executive agencies. C. Alter nati hanism ffor or R esolving Alternati nativve Mec Mechanism Resolving En vir onmental Disputes Envir vironmental Oposa is famous for the Court’s pronouncement on intergenerational responsibility. However, it is also criticized for not having been followed through with actions that actually benefited the environment. If we recall, the ruling in Oposa was to remand the case to the trial court for further proceedings and implead the timber license holders. The logical continuation of the case would have been to prove that the harvesting of forest products by timber license holders was not sustainable and thus impaired the rights of future generations from enjoying the value of our forests. But who is to decide that question – the court or the environmental agency? The filing of the case had achieved its goal of forcing the environmental agency to reexamine its policy on exploitation of forest resources, under the watchful eyes of the court. But to decide whether the subsequent actions of the environmental agency are sufficient for sustainable resource management would have been difficult for the court. A device known as a “consent decree” is used in the United States [notably the Environmental Protection Agency] to make a comprehensive settlement of environmental enforcement cases. Essentially, the EPA negotiates with the violator to arrive at negotiated agreements containing comprehensive, mutually- 2007] FRAMEWORK FOR STRENGTHENING 147 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES acceptable solutions to the environmental problem that resulted in a violation. The unique feature of the EPA consent decree process is that it is subject to public notice and comment before it is finally entered into. While Oposa was not an enforcement case, we can learn from the US experience on consent decrees to arrive at negotiated solutions to environmental disputes. The advantage of this process is that the parties can have a wide choice of actions to address the issues and not be limited to the issues recognized by the court. The added benefit of consent decrees over normal negotiations is that it has the imprimatur of the court and can be enforced through court order. While the parties have wide discretion on the remedial actions, the court still has the power to determine whether the action is reasonable, without having to decide for itself what the actual terms should be. VIII. S UMMAR Y UMMARY AND C ONCL USION ONCLUSION When the Supreme Court in Oposa said that the Constitutional right of the people to a healthy environment was as fundamental as the right to self-preservation, it elevated the environmental right to the level of civil and political rights. In my view, this is appropriate given the importance of this right to a good quality of life for all citizens and for the sustainable development of the country. This is the reason why an effective and efficient framework for environmental adjudication is necessary. To fully develop this framework, this paper discussed the issues that need to be addressed and discussed, options that the judicial system, through the Supreme Court as the administrator of the system, may want to take. The annex to this paper summarizes, in table form, these issues (including the problem that is being addressed) and the options. 148 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 Environmental cases have features that differentiate them from ordinary civil and criminal cases. Treating them differently does not mean giving special favors or giving bias to environmental causes. Instead, it is a recognition that the nature of environmental cases makes it difficult for injured parties to find redress. The special rules only try to correct the situation to balance the playing field. Administrative measures are intended to make adjudication more efficient, by giving judges the right training and ensuring that the trained judges are available in the areas where the cases are likely to occur. Finally, alternative modes should be encouraged because the nature of environment cases requires broader settlements that are more appropriate to negotiation or agency action. 2007] FRAMEWORK FOR STRENGTHENING 149 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES A NNEX Framew ork ffor or Impr vir onmental Adjudication ramework Improoving En Envir vironmental in the Philippines 150 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 2007] FRAMEWORK FOR STRENGTHENING 151 ENVIRONMENTAL ADJUDICATION IN THE PHILIPPINES Str engthening Cour Strengthening Courtt Capacity on En vir onmental Adjudication ∗ Envir vironmental Justice Ameurfina A. Melencio Herrera∗∗ I. ACTION AGENDA FOR CAPACITY BUILDING OF PHILIPPINE JUDGES ................................................................. 152 A. Training and Curriculum Content B. Moving Forward II. GREENING THE JUDICIARY .......................................................... 158 III. OPTIONS ............................................................................................ 162 IV. CONCLUSION ................................................................................... 164 I. A CTION A GEND A FOR C AP ACITY B UILDING GENDA APA OF P HILIPPINE J UDGES Since 2001, the Philippine Judicial Academy (PHILJA) had always advanced the cause of the environment within the judiciary. Our objectives have consistently been: 1. To strengthen the capacity of our judges to effectively adjudicate and manage their environmental cases before them; ∗ Delivered at the Asian Justices Forum on the Environment: “Sharing Experiences to Strengthen Environmental Adjudication in Asia” on July 6, 2007 at the Edsa Shangri-La Hotel. ∗∗ Madam Justice Herrera has been the Chancellor of the Philippine Judicial Academy since its institution in March 1996. She was appointed to said position four years after her retirement from the Supreme Court, where she served as Associate Justice from 1979 to 1992. 2007] STRENGTHENING COURT CAPACITY ON ENVIRONMENTAL ADJUDICATION 153 2. To update them on developments in law, rules and jurisprudence; 3. To pave the way for an improved and informed decisionmaking on environmental issues before them; and 4. To increase their sensitivity levels in the resolution of environmental disputes. With the invaluable assistance of development partners, we conducted 11 seminar-workshops/roundtable discussions on environmental law for selected judges in the different judicial regions. We also conducted a workshop on different case studies relating to environmental law. A. Training and Cur Curriculum riculum Content Our training programs included Orientation Programs for New JJudg udg es where judges were given an Introduction to udges She is the moving power behind the Philippine Judicial Academy which aims to foster excellence in the Judiciary by providing quality judicial and legal education to members and aspirants to the Judiciary, court personnel and officials and personnel of quasi-judicial bodies. Described as the illustrious granddaughter of the President of the First Philippine Republic, General Emilio Aguinaldo, Justice Ameurfina A. Melencio Herrera cut a fulfilling and fruitful career on the Bench from then Court of First Instance of Baler, Quezon to the highest court of the land. She has been the recipient of numerous awards, and rendered landmark decisions as Associate Justice of the Supreme Court. She was Chair of the Second Division of the Supreme Court and was Chair of the House of Representatives Electoral Tribunal until she retired in 1992. 154 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 Environmental Law. Specialized trainings, trainings which are usually multi-sectoral in approach to include prosecutors, Department of Environment and Natural Resources (DENR), environmental science experts, and non-government organizations, were also held. oduction to En The Intr Introduction Envir vironmental Law vir onmental La w is usually a two-hour session where we give a Situationer on Environmental issues; clarify the jurisdiction of courts vis-à-vis DENR and other agencies of government; and present case studies and a survey of environmental laws. The Specialized Training is an intensive three-day training, with a case study approach; again, a situationer is given on environmental issues, such as those involving air, water and land. We give them the legal framework for the protection of the environment and explain the role of Government Implementing Agencies, and of non-government organizations. We also focus on procedural remedies and challenges in availing of the remedies, and wind up with case studies. The cur curriculum riculum content covers both legal and non-legal topics. Le Leggal topics include not only environmental laws of The Philippine Bar Association, in awarding Justice Herrera a Plaque of Appreciation in 1991, aptly described her thus: “Born of patrician stock, bred in gentility, raised in affluence, steeped in academics, and enveloped in historical prominence. She is her own light despite the long shadow cast by her grandfather, President Emilio Aguinaldo; her father, Ambassador Jose P. Melencio, and her husband, University of the Philippines Chancellor, Dr. Florentino B. Herrera, Jr. Yet, she is the guardian of the legacy of her lineage as she brings forth into full flowering, through her actuations and court adjudications, the justice that heroes dream of and the freedom that martyrs die for.” 2007] STRENGTHENING COURT CAPACITY ON ENVIRONMENTAL ADJUDICATION 155 which we have some of the most progressive, but also such subjects as: 1. Provisional Remedies in Environmental Cases; 2. Abatement of Nuisance, Environmental Torts and Damages and Evidence; 3. Role of the Judiciary on Environmental Protection and Problems Faced by the Courts in Fulfilling Their Role; 4. Challenges in Environmental Case Handling; 5. Challenges in Effective Adjudication of Environmental Cases in the Philippines; and 6. Problem Areas Encountered (Judiciary, Prosecution and Enforcement). Non-legal topics include discussions on: 1. Overview of the State of the Philippine Environment; 2. A Case Study on the Montalban Watershed; 3. International Environmental Principles and Environmental Valuation; 4. Field Trip to Observe a Material Recovery Facility; and 5. Workshop on Designing a Training Manual on Environmental Law The participants in the different seminar-workshops were judges, prosecutors, representatives from the DENR, and representatives from non-government organizations (NGOs). These programs culminated in the publication of an En vir onmental La w Training Manual in 2006; and an Envir vironmental Law interactive training tool and manual colorfully entitled Greening the JJudiciar udiciar udiciaryy, in 2005. 156 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 Both manuals have been distributed to judges for their guidance. Both projects were supported by the United States Agency for International Development (USAID), the United States–Asia Environmental Program (US-AEP), and the Asia Foundation, for which we will always be grateful. The Environmental Law Training Manual includes the following Chapters: 1. The Philippine Environment in Crisis: An Overview; 2. Laws Created as a Response to the State of the Environment; 3. Role and Participation of Government Implementing Agencies/Offices; 4. Remedies Available to Various Groups; 5. Challenges/Problems Encountered in Availing Remedies; 6. Role of Non-Government and People’s Organization; and 7. Case Studies. eening the JJudiciar udiciar The Gr Greening udiciaryy manual covers: 1. Basic Environmental Concepts; 2. Understanding the Air We Breathe; 3. Understanding the Water We Drink; 4. Dangerous Climate Change; 5. The Carbon Trading Game; 6. An Introduction to Environmental Economics; and 7. Environmental Legal Framework. 2007] STRENGTHENING COURT CAPACITY ON ENVIRONMENTAL ADJUDICATION 157 B. Mo ving FForw orw ar Moving orwar ardd The Action Plan for the Philippines judicial capacity building program on the environment will, therefore, continue to be guided by the contents of these two published manuals, and to build on these, always cognizant of the need for environmental expertise in environmental litigation. For judges who have undergone basic training, we will formulate advanced training courses, depending on their particular need for knowledge of the jurisdictional area to which they have been assigned and pertinent to the most prevalent cases filed. We will continue to assist them in meeting the challenges and problems encountered in availing of remedies, e.g., with respect to technical and evidentiary considerations; poverty and access of the people to the courts; court docket congestion; harassment suits, and acquainting them with SLAPP or strategic lawsuits against public participation. We will also take cognizance of the need for specialized rules and procedures to improve adjudication of environmental cases such as standing to sue and class actions or citizen’s suits, as well as rules for the efficient preservation, custody and presentation of evidence in court, considering the practical problems involved (particularly, the usually bulky nature of the evidence, e.g., logs, fish, wildlife). The training programs will continue to be multi-sectoral to include prosecutors, government agencies, enforcement agencies, people’s organizations, and public interest lawyers; as our experience has been that this approach is more effective and there is an interaction of participants leading to a better understanding of each other’s viewpoints on environmental protection. 158 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 There are also key legal issues to be addressed such as, again, those of standing to sue and class suits which are always raised in forums. In Illegal Logging Cases, a key issue would be: Is constructive possession sufficient as cause to file a case for violation of Section 68, Presidential Decree No. 705, as amended by Executive Order No. 277? How about the disposition of seized/confiscated forest products during the pendency of the criminal case for violation of the Forestry Law? In Palawan Fishery Cases, an issue that has been raised is the intervention or compromise by executive agencies in poaching cases in order not to imperil diplomatic ties with foreign countries. In forest management, an issue is the non-demarcation of forest boundaries and national parks. II. G REENING THE J UDICIAR Y UDICIARY The format for this presentation also includes a proposed judicial vir onmental benc hes in the benches capacity building program for en envir vironmental Philippines. In 1993, the Philippine Supreme Court issued Administrative Order No. 15-13-93 designating special courts to handle violations of the Forestry Code. This was in response to the number of cases of violation of Forestry laws, in areas where violations were rampant, as well as where resources were most abundant, as it is there where conflicts and violations are most likely to occur. On July 21, 2006, the Academy held a roundtable discussion on green benches, also with the assistance of Asian Environment 2007] STRENGTHENING COURT CAPACITY ON ENVIRONMENTAL ADJUDICATION 159 Compliance and Enforcement Network (AECEN) and USAID, the United Nations Development Programme (UNDP) and the Haribon Foundation. It was an offshoot of the Asian JusticesWorkshop on the Environment held in Bangkok on April 27-28, 2006. Our objectives were to discuss current issues and options to improve environmental adjudication including the possibility of establishing or designating “green benches,” in other words, an institutional change. In the interim, we had to go into Data Inventory and Assessment of Environmental Cases, including court dockets monitoring and classification of environmental cases. This had to be accomplished in order: to identify the type of violations of environmental laws docketed in various courts (first, second and appellate levels); to guide the Supreme Court for purposes of locating “designated green benches;” and to enhance the classification system and/or data disaggregation on environmental law cases. The Office of the Court Administrator (OCA) has helped us in this regard. Based on their current data, the scenario before us is as follows: 160 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 2007] STRENGTHENING COURT CAPACITY ON ENVIRONMENTAL ADJUDICATION 161 162 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 III. O PTIONS The Philippine options would therefore be, first, to designate special courts to hear environmental cases in the same manner that our Supreme Court has designated special courts to hear cases involving extrajudicial killings and enforced disappearance, and to hear election cases. The designation of judges to hear environmental cases should be in strategically located courts justified by empirical data showing a number of environmental cases. It is these judges so designated who will be given progressive training. It would not be specialization for them. It would be in addition to their regular tasks. Of course, the eventual goal should be for all courts to handle environmental cases, since environmental cases can arise in any part of the country. 2007] STRENGTHENING COURT CAPACITY ON ENVIRONMENTAL ADJUDICATION 163 A second option would be to expand the jurisdiction of forestry courts to cover all environmental cases. But this would mean a more detailed study of the location of these courts vis-àvis the environmental cases pending in other areas. The third option would be to designate special divisions in the Court of Appeals to handle environmental cases. Appellate courts should also be equipped with technical skills to be able to handle issues in appealed environmental cases. The latest data furnished the Academy by Presiding Justice Ruben T. Reyes of the Court of Appeals derived from their Special Cases Section, shows that there are “74 DENR cases” filed with the Court of Appeals from November 2001 to June 2007. Since the cases are not really that many, perhaps, the designation of one or two Appellate Court Divisions for the purpose, should suffice. More detailed statistics will have to be secured with respect to other types of environmental cases as handled by trial court judges and appealed to the Court of Appeals. Studies by NGOs also disclose that a low number of cases are being filed in court despite the high number of violations in the study sites. This is true in Mindanao. In Palawan, it was also found that out of some 14,000 known incidents of fishery law violations over a four-year period, only 40 arrests were made, 33 cases of which reached the courts which resulted in five convictions. These two studies would indicate that the problem of handling environmental cases may not be in the courts. The suggestion has thus been made that we look beyond the courts, particularly, in respect of enforcement and prosecution; and that alternative modes of resolving cases be looked into such as court-annexed mediation, and administrative adjudication, especially if the dispute is between local groups and big companies. 164 THE PHILJA JUDICIAL JOURNAL [VOL. 9:28 This seems to be the system in the United States where the Environmental Protection Agency, represented here by Judge Kathie Stein, makes use of negotiated settlements in order to arrive at mutually acceptable solutions to environmental disputes. Resources permitting, the Academy can do its share by the training of Mediators in Environmental Mediation, just as it is now undertaking training in Family Mediation. IV USION IV.. C ONCL ONCLUSION Through progressive trainings and periodic curriculum reviews, the PHILJA will continue to strengthen the capacity of our judges on environmental adjudication. And, when special courts on the environment shall have been designated by the Supreme Court, we will be ready to conduct the necessary and appropriate training, based on existing modules, and profit from the invaluable experience that all of you have shared with us in this Second Asian Justices Forum on the Environment. Respectfully submitted.

PJJ Vol. 9, Issue 28 July-December 2007

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