Writ of Kalikasan

Magandang hapon po sa inyong lahat. Well first, let me say I am happy to see again my friend, Secretary Luistro. Pagkatapos kong makinig doon sa sinabi niya ako ay naniniwala na higit na mabuti kaysa tuwid na daan ang berdeng daan.

For a start I will give the background on how we gave birth to the rules and procedures for environmental cases. We promulgated these rules way back in April 2010. It is now 2016; it’s about time that the high court gives these rules the usual sunset review.

After 6 years, we have logged enough number of cases which will give us the appropriate window in order to find out the vulnerabilities of these rules and procedures for environmental cases. I was saying and suggesting that at the end of this conference that one of the resolutions should be to urge the Supreme Court, Congress, and the Executive Department to give these rules a look over in order to strengthen the procedure on how we can protect our environment.

It was not easy to promulgate these rules and procedures for environmental cases. The Writ of Kalikasan is just part of these rules and procedures. When I assumed Chief Justice of the Supreme Court, I looked at the powers given the high court under the 1987 Constitution. Under this constitution, the courts were given expanded powers. The commissioners of our constitution rebalanced the powers of government and it has certainly tilted the powers in favor of the Supreme Court. That is the reason why in the 1987 Constitution, judicial power was expanded. That is why you have the ground of grave abuse of discretion which the high court can use to review every case and action from the different branches of government. But similarly, because its rule-making powers were expanded under the 1987 Constitution, the decision making power of the Supreme Court were expanded under its rule making powers.

It is only the Supreme Court that can promulgate the rules and procedures on how to litigate cases. And you have these in the Rules of Court. To litigate a civil case, the rules are promulgated by the high court. To litigate a criminal case, all the rules are in the Rules of Court promulgated by the Supreme Court.

I looked at the number of environmental laws that were coming from the legislative mills. There are green laws and blue laws. On top of that, environmental concerns were being put on the table in various international conferences. We were signatories to different regional agreements, international treaties concerning the protection of the environment. The emerging importance of environmental issues was obvious. In fact some experts say that if there is another world war, it is not a world war about oil but a fight about water resources. So I thought that given the emerging importance of environmental issues, the Supreme Court should be able to promulgate special rules on how to promulgate environmental cases. The objective is to see to it that these environmental cases are litigated by simple rules so that these cases can be decided by the high court with greater speed.

I thought that if we just use ordinary rules to try violations of environmental laws,

these cases would just have the fate as the Mona Lisa cases. They just lie there and they die there. But it was not easy to convince my colleagues to use the law, much more produce this Writ of Kalikasan.

Some were doubtful whether our action would be in accord with the constitution. Normally these remedies should come from congress because this is a matter of law- making. And some of the justices were fearful. If we overstep the limits of power, we could be the subject of impeachment; but we decided to take the risk. The legislature was not doing anything to protect our environment and I thought that the new constitution gave the high court the power to promulgate the rules to enhance human rights and part of our human rights is the right to a healthy environment.

We all resolved to use that power for the first time in the whole history of our judicial system and that mothered the rules and procedures for environmental cases and part of these rules gave our people the right to use the Writ of Kalikasan.

When we promulgated these rules, they created a lot of anxieties to the different sectors of our society. Any attempt to strike a balance between the demands of economic progress and demands to protect the environment will always be contentious. But I wish to allay the apprehension that the point of the balance was unduly tilted by the new rules against the need to fast track the economy of the country. The heart of the new rules lies in the principles of sustainable development which assures that economic development will never be sacrificed as a value.

Let me inform you about the approach taken by the Supreme Court in promulgating these new rules. We adopted the rights-based approach in our rules of procedure to govern environmental cases. In layman’s language, we treated the balance to a right and sound environment as a constitutional right akin to our right to civil and political rights.

We took the cue from the landmark decision of the Supreme Court in the case of Oposa vs Factoran written by former Chief Justice Davide who held that a balance and heathful ecology is not less important than our civil and political rights for they are not concerned with anything less than our self-preservation and self-perpetuation. After laying down that important predicate, a correlated duty to protect the environment could be demanded from each and every individual.

Treating the right to a sound and balance environment on the same plane as our civil and political rights means that it can be demanded from the government. Not only can it be demanded from the state but the degree of protection should be higher.

We have a variety of rights under our constitution and under our law. But their importance varies from one class to another. For instance, you have the socio-economic rights which include the right to education, health, shelter, and so forth. But in a large sense, these rights are deemed of lesser importance than our civil and political rights. Our civil and political rights can be compelled from the state and they are considered as inevitable.

In contrast, our socio-economic rights cannot be demanded from the state. Thus, an informal settler cannot march to congress that he be given a house because he has a socio-economic right to shelter. These rights are spelled out in our constitution but are just

mere aspirations, mere directions, not command because the state does not have the resources to uphold them.

The new rules of the environment should be understood in this light. In light of the consideration that the right to a healthy environment has now been elevated, has been treated to the belonging of civil and political rights, our highest class of rights.

The highlights of these rules are: (1) First, is the wrong apprehension that the rules standing on who can file cases or violation of our environmental laws has been lowered too much. Some say that he can sue even though he does not have injury to himself. This is incorrect. The rules may have liberalized the rule on standing but this is consistent with the concept of the right to a sound environment as a right that is communal rather than individual in character. The right to breathe clean air is the right of the people to a common that is clean air. The right to go to court belongs to much more. It cannot be treated nor restricted to an individual who has suffered from a personal injury. That is the reason why we liberalized the rule on standing by allowing this so called citizens suit in representation of other citizens.

It is not the Supreme Court that started allowing the practice of letting citizens sue. Even the Congress recognized the right of citizens to file suit when it enacted the Clean Air Act of 1999 and the Ecological Solid Waste Management of 2000. Also allowing a citizen suit to be filed even on behalf of minors and generations yet to be born is in our state books. It proceeds from the concept that we are stewards of our environment and this stewardship includes the duty to preserve our environment in behalf of our minors and future generations. Minors can file a suit. That is an unusual suit but we adapted that rule in our new rules on environmental laws.

While the High Court liberalized the rule on standing in citizen suit, it also saw to it that the privilege will not be abused. Thus, the Supreme Court required that if cases are filed in suits by NGOs, they should produce some proof of their judicial personality– proof of their accreditation, recognition or registration. The Supreme Court was not blind to the fact that some unscrupulous people organize themselves as NGOs and people’s organization when their real membership is small and negligible or when they are organized only to harass government officials.

(2) Secondly, let me address the fear that there may be an irresponsible rush on the issuance of temporary environmental protection order. These are the equivalent of TROs in courts. Environmental protection order is an order issued by the court directing or enjoining any person or government agency to perform or to desist performing an act to protect or rehabilitate the environment. I stress that there is hardly anything new in any environmental protection order. Since time immemorial, courts enjoy the power to issue temporary restraining orders or preliminary injunctions on great or irreparable injury to the legal rights of a party. This power is not only exercised by the courts in the Philippines but also courts in other countries as well.

(3) Let me address one more area of concern and this is the adoption and application of the precautionary principle. If you will remember, the high court in its last decision used this Precautionary Principle to decide the case involving genetic eggplant. What is this concept of Precautionary Principle which is at the heart of these new rules and procedures? The Precautionary Principle states that when human activities may lead

to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions should be taken to avoid or diminish that threat.

Our rules on evidence tells us how this important principle is to be applied and this is the rule: when there is lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the Precautionary Principle in resolving the case before it and our rules set some factor to consider before they can apply this principle. The court should include and consider: (1) the threats to human life or health, (2) the inequity to present and future generations, (3) prejudice to the environment without legal consideration of the environmental rights of those affected.

Ganoon kahalaga itong Precautionary Principle. The courts can apply this even if there is a lack of full scientific certainty in establishing a causal link between the human activity and its environmental effect. Hindi po kailangan yung conclusive scientific proof. Ang kinakailangan lang ay ipakita ang epekto sa environment is plausible even if not yet scientifically certain. Ganoon kahalaga iyon. Kaya iyon ang ginamit ng ating Korte Suprema sa eggplant case.

There are certain sectors which question the constitutionality of the Precautionary Principle. But these principles are found in treaties. For instance, the Rio Declaration of 1992 provides: in order to protect the environment, it shall be widely applied by the states. And this Precautionary Principle has been applied by courts and regulatory agencies in the United States, Canada, Australia and Europe. In other words, the shape and the contours of this Precautionary Principle are clear. There is nothing ambiguous and nothing to fear about this uncertainty.

For instance, the Supreme Court of Minnesota has ruled that it could apply standards under its Clean Water Act that assume asbestos in drinking water was harmful even though they did not have scientific evidence to demonstrate it.

True to tell there are several versions of the Precautionary Principle. Our rules even adopted the weaker version and not the strong version of the Precautionary Principle. In its strongest form, the Precautionary Principle imposes a burden of proof on those who create potential risk and it requires regulation of activities even if it cannot be shown that those activities are likely to create significant harm. In our rules, we did not shift the burden of proof. As I said we chose to adopt the weaker version of the Precautionary Principle.

Using the layman’s language, the Precautionary Principle expresses the old virtue of prudence. It embraces the folk wisdom of “better safe than sorry”; the folk wisdom that says “look before you leap”; the folk wisdom that says “a stitch in time saves nine”. And it is contrary to the wait-and-see approach. In other words, we adopted this Precautionary Principle as a consequence of elevating our right to a sound environment to the category of civil and political rights.

In cases involving civil and political rights, all cases of doubt are resolved in favor of civil and political rights. The same is true for environmental cases. In cases of doubt, you resolve the right in favor of the right of the people to sound and healthy environment, even without scientific evidence. As long as the threats are plausible to the environment, the courts can use this Precautionary Principle in order to issue the environmental writ to

protect our environment– the Writ of Kalikasan, the temporary environmental protection orders, the writ of continuing mandamus– lahat po ‘yan pu-puwedeng i-issue ng courts kahit yung scientific evidence is not yet that conclusive about the harm to our environment.

Totoo po kung mayroong mga threats sa ating right to a sound and healthy environment, puwede nang mag-issue ang mga courts ng iba’t ibang imperial writ na ito.

I am proud to say, the Writ of Kalikasan is the first of its kind in the world. Noon pong nilabas natin itong Writ of Kalikasan doon sa mga international conferences, ay kasama ito sa mga pinag-uusapan at tinatanong nila palagi, “Paano ninyo ginawa itong Writ of Kalikasan?” Lalong-lalo na “Paano ito nanggaling sa inyong Supreme Court?” Dahil gusto rin nilang kopyahin. Ang sagot ko sa kanila, “Hindi ninyo maaaring gawin ‘yan bilang Korte Suprema dahil ‘yang power na iyan ay matatagpuan lang sa aming konstitusyon. Hindi binigay sa inyo ‘yang karapatan na ‘yan. Wala ang karapatan na ‘yan sa ibang Korte Suprema sa iba’t ibang panig ng mundo.” Kaya tayo lang ang may remedial writ na nanggaling sa kataas-taasang hukuman. Nakatutuwa rin sabihin na case book on environmental laws na ginagamit halimbawa sa Estados Unidos. Ginagamit sa Harvard, sa Yale, at sa iba pang universities doon. Kasama nitong Writ of Kalikasan ay ang pinag- aaralang kasong i-finile ni Oposa, yung Oposa versus Factoran. Kaya pagdating sa environmental laws and protection ay medyo advance ang steps natin, advance even in our jurisprudence yung decision coming from the high court.

Ngunit ang sabi ko kanina, ito pong rules na ito ay ginawa noong 2010, huling taon ko na bilang punong mahistrado. Ako ay nag-form ng special committee for these purpose to promulgate our writ. I formed a special subcommittee. As it was my duty, I presided in all its meeting just to be sure we all have the writ. At pinili ko yung mga magiging miyembro noon. Dalawa o tatlong pinakamagagaling na mahistrado na bihasa sa procedural laws. Kinuha ko ding miyembro si Attorney Sering. Siya po noon ay naging Undersecretary at the Department of Natural Resources and Chief of its Legal Department, at naging miyembro ng Climate Change Commission. Siya ang naging Vice-chair dahil ang kanyang Chairman ay si Presidente. Kinuha ko ding miyembro, representing the NGOs, si Asis Perez na ngayon ay Director of Fisheries. Kinuha ko ring mga miyembro yung mga pinakamagagaling nating judges sa regional trial courts. Lahat ‘yan mga na-promote na dahil magagaling sila talaga.

But that was the year 2010. After, dapat talaga ma-review ang ritual procedure and rules na ‘yan, para makita kung saan pwedeng ma-improve or alisin yung rules na hindi dapat.

After six years, maraming kaso na nadesisyonan ng ating husgado, from the lower courts to the Supreme Court. At magagamit natin ‘tong mga kaso na ito para mas lalong pagtibayin itong Writ of Kalikasan para ma-continue. Kaya sabi ko nga, mayroon tayong portion na we could suggest resolutions and I urge that part of the resolutions of the conference should be resolutions urging the Supreme Court and even Congress to review these rules of procedure. They are no longer new rules they are old rules because they are six years old and hopefully the high court and congress can work together so we’ll have better and stronger rules of procedure in order to preserve the integrity of our environment.

Thank you very much.