The new rule on the writ of kalikasan has been issued by the Philippine Supreme Court. It gives flesh to the power of the citizens to assert their rights to a better ecology. Read below the comprehensive news report on the matter as released by the Court (see: http://sc.judiciary.gov.ph).
SC Unveils Landmark Rules of Procedure for Environmental Cases
April 14, 2010
By Abigail T. Tze
The Supreme Court yesterday promulgated the Rules of Procedure for Environmental Cases which will serve as a significant catalyst in support of sweeping and far-reaching reforms in environmental litigation and protection. The Rules are the first of its kind in the world.
The promulgation of the Rules have been highly-anticipated by both the international and domestic community since the Supreme Court held its widely-commended Forum on Environmental Justice last April 16-17, 2009 simultaneously through video-conferencing at the University of the Cordilleras, Baguio City, University of the Philippines-Visayas, Iloilo City, and Ateneo de Davao University, Davao City. The Forum enabled the Judiciary to receive inputs directly from the different stakeholders in the justice system, primarily aimed at determining ways on how the courts can help in the protection and preservation of the environment. It was supported by various development partners which include the American Bar Association-Rule of Law Initiative (ABA-ROLI), the Hanns Seidel Foundation, the United Nations Development Program (UNDP), the United States Agency for International Development (USAID), the United States Department of the Interior, and the World Bank.
The 1987 Constitution mandates the right to a healthy environment via Sec. 16, Art. II of the Philippine Constitution which provides that: “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” Section 15 of the same Article provides that: “The State shall protect and promote the right to health of the people and instill health consciousness among them.”
Highlights of the Rules include provisions on: (1) citizen suits, (2) consent decree, (3) environmental protection order, (4) writ of kalikasan, (5) writ of continuing mandamus, (6)strategic lawsuits against public participation (SLAPP) and (7) the precautionary principle.
The provision on citizen suits liberalizes standing for all cases filed enforcing environmental laws. Citizen suits have proven critical in forcing government and its agencies to act on its duty to protect and preserve the environment. The terminology of the text reflects the doctrine first enunciated in Oposa v. Factoran (G.R. No. 101083, July 30, 1993). To further encourage the protection of the environment, the Rules enable litigants enforcing environmental rights to file their cases as citizen suits. As a procedural device, citizen suits permit deferred of payment of filing fees until after the judgment
The use of a consent decree is an innovative way to resolve environmental cases. It allows for a compromise agreement between two parties in environmental litigation over issues that would normally be litigated in court, and other matters that may not necessarily be of issue in court.
An environmental protection order refers to an order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment. It integrates both prohibitive and mandatory reliefs in order to appropriately address the factual circumstances surrounding the case. This remedial measure can also be prayed for in the writs of kalikasan and continuing mandamus.
Similar to the writs of habeas corpus, amparo and habeas data, the issuance of the writ of kalikasan is immediate in nature. It contains a very specific set of remedies which may be availed of individually or cumulatively, to wit – it is available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. The petition for the issuance of a writ of kalikasan can be filed with the Supreme Court or with any of the stations of the Court of Appeals. Likewise, the summary process leading to the issuance of the writ of kalikasan dispenses with extensive litigation; this facilitates the prompt disposition of matters before the court.
Another innovation is the rule on the writ of continuing mandamus which integrates the ruling in Concerned Residents of Manila Bay v. MMDA G.R. Nos. 171947-48, December 8, 2008) and the existing rule on the issuance of the writ of mandamus. Procedurally, its filing before the courts is similar to the filing of an ordinary writ of mandamus. However, the issuance of a Temporary Environmental Protection Order is made available as an auxiliary remedy prior to the issuance of the writ itself.
As a special civil action, the writ of continuing Mandamus may be availed of to compel the performance of an act specifically enjoined by law. It permits the court to retain jurisdiction after judgment in order to ensure the successful implementation of the reliefs mandated under the court's decision. For this purpose, the court may compel the submission of compliance reports from the respondent government agencies as well as avail of other means to monitor compliance with its decision.
Its availability as a special civil action likewise complements its role as a final relief in environmental civil cases and in the writ of kalikasan, where continuing mandamus may likewise be issued should the facts merit such a relief.
Both petitions for the issuance of the writs of kalikasan and mandamus are exempt from the payment of docket fees.
Since formidable legal challenges may be mounted against those who seek to enforce environmental law, or to assert environmental rights, in light of this, the Rules make available a formidable defense in these by creating a rule on strategic lawsuit against public participation (SLAPP). . These legal challenges may be pre-emptive in character and may be done in order to “chill” the latter.
Another significant aspect of the Rules that derives from the transboundary and temporal nature of ecological injury is the adoption of the precautionary principle. In this context, the precautionary principle finds direct application in the evaluation of evidence in cases before the courts. The precautionary principle bridges the gap in cases where scientific certainty in factual findings cannot be achieved. By applying the precautionary principle, the court may construe a set of facts as warranting either judicial action or inaction, with the goal of preserving and protecting the environment. This may be further evinced from the second paragraph where bias is created in favor of the constitutional right the people to a balanced and healthful ecology.
Some important provisions on criminal procedure can also be found under the Rules.
The rule on bail makes available to the accused the privilege of bail from any court, within and outside the jurisdiction of the court which had issued the warrant of arrest. The immediate availability of bail is intended to obviate long periods of detention.
One important innovation under the rule on bail is the execution of an undertaking by the accused and counsel, empowering the judge to enter a plea of not guilty, in the event the accused fails to appear at the arraignment. This authorization permits the court to try the case in absentia, thereby addressing a fundamental concern surrounding the prosecution of criminal cases in general, where the accused jumps bail and the court unable to proceed with the disposition of the case in view of the absence of the accused and the failure to arraign the latter.
Several environmental advocates have lauded the Supreme Court for serving as the major bulwark for fundamental reforms in environmental protection:
Atty. Antonio Oposa, Jr.: “This is a new day for the life sources of land, air and water. Ordinary citizens like us are now empowered to take legal action where our political leaders will not. We thank the Supreme Court for this truly landmark achievement, the first of its kind in the world. It happened during Chief Justice Puno’s stewardship of the Supreme Court. We salute you, Chief Justice Puno, the entire Supreme Court, and everyone who played a role in the drafting of this milestone for the movement of citizens who care for our sources of life! You have made a great difference and will forever be remembered for this legacy. Mabuhay po kayo!”
Atty. Gloria Estenzo Ramos (Global Legal Action on Climate Change): “A new era of nurturing for our threatened natural support system has ushered in with the Supreme Court’s promulgation of the much awaited Rules on Environmental Cases. This will transform the legal profession and the practice of law in our country and instill a mindset of sustainability among stakeholders, especially the lawyers, government agencies and the corporate sector. Lawyers will become stewards of both the law and the environment. The wide gap existing between the law and reality will narrowed down as the trail-blazing remedies such as the writ of kalikasan, writ of continuing mandamus, citizen suit and anti-SLAPP, afforded to the people, ecological stewards and dedicated civil servants will render the violation or non-compliance of environmental laws a very expensive and tedious option. This legacy of Chief Justice Puno and the justices of the Supreme Court will be enshrined as one of the greatest gifts not just to Filipinos and the future generations of this biodiversity rich nation, but to our climate challenged planet as well. Mabuhay ang SC! Mabuhay si Chief Justice Puno!”
Atty. Roan Libarios (Integrated Bar of the Philippines, Governor): “A.M. No. 09-6-8 is a major breakthrough that will finally bridge the wide gap between Philippine environmental protection laws and their enforcement. Mother Nature will rejoice from the innovative legal weapons created and unleashed for its defense by the SC – the citizens’ right, EPO, writs of kalikasan and continuing mandamus. Truly, no other set of rules can match the potency of A.M. No. 09-6-8 in promoting ‘environmental accountability.’ With its potency, it will energize, if not transform the field of legal advocacy in environmental protection.”
The Sub-committee who finalized the Rules was chaired by Chief Justice Reynato S. Puno, its other members include Justice Presbitero J. Velasco, Jr., Justice Diosdado M. Peralta, Justice Lucas P. Bersmain, Justice Ma. Alicia Austria-Martinez (ret.), Commission on Climate Change Commissioner Mary Ann Lucille L. Sering, Judge Myrna Lim-Verano, and the U.S. Department of Interior’s in-country representative, Atty. Asis G. Perez.
The Rules will take effect within fifteen (15) days following its publication once in a newspaper of general circulation.
(SC En Banc Resolution dated 13 April 2010 in A.M. No. 09-6-8-SC).
